Le Sage v. Smith

• Citation: 145 S.W.2d 308
• Decision Date: 15 November 1940
• Docket Number: No. 14134.,14134.
• Parties: LE SAGE et al. v. SMITH et al.
• Court: Court of Appeals of Texas

145 S.W.2d 308

LE SAGE et al. v. SMITH et al.

No. 14134.

Court of Civil Appeals of Texas. Fort Worth.

November 15, 1940.

Rehearing Denied December 13, 1940.

Appeal from District Court, Young County; Allan D. Montgomery, Judge.

Action by Mrs. Hettie Smith, on behalf of herself and minor daughters, against R. S. LeSage and others for injuries sustained in an automobile collision. A plea of misjoinder of parties was sustained and by amended petition Mrs. Smith alone was made party plaintiff, and from a judgment for the plaintiff, the defendants appeal.

Affirmed.

Marshall & King, of Graham, and Carrigan, Hoffman & Carrigan, of Wichita Falls, for appellants.

F. V. Hinson, of Graham, and L. D. Hawkins, of Breckenridge, for appellees.

BROWN, Justice.

Mrs. Hettie Smith, appellee here, was the wife of M. D. Smith, now deceased, and was riding in the family auto with her said husband and their two minor daughters, Betty and Prudence, going from the South Bend neighborhood in an easterly direction toward the City of Graham, in which city the family lived, and the trip was being made in the late morning of June 12th, 1936, when an automobile driven by Roy Wheat, an employee of R. S. LeSage, traveling in the same direction, ran into the rear of the Smith car and knocked it into the ditch on the side of the road, damaging the car and inflicting personal injuries on Mrs. Smith and the daughters.

A few months after the accident, Mr. Smith died, and, one day before the statute of limitations had run, Mrs. Smith, for herself and as next friend of her minor daughters, brought suit.

In the original petition we find that in stating the cause of action it is alleged that M. D. Smith died since the accident and "left these plaintiffs as his surviving heirs at law and who are entitled to as such heirs recover damages sustained by M. D. Smith on above date by the collision, etc.," and the prayer is for "such other and further, general and special relief, in law and equity, that these plaintiffs and each of them may be justly entitled to."

Attention is specially called to this first pleading, in view of the position taken by appellants here.

Appellants (defendants below) addressed a plea of misjoinder of parties plaintiff and causes of action, and this plea being urged, the trial court sustained it and by amended petition Mrs. Smith alone is made the party plaintiff.

The defendants demurred generally, urged several special exceptions, pleaded "joint enterprise" on the part of Mr. and Mrs. Smith, and also the statute of limitations of two years, and contributory negligence on the part of Mrs. Smith and Mr. Smith.

The cause was tried to a jury and thirteen special issues were submitted and same were answered as follows: (1) that at the time and place of the collision Roy Wheat was acting in the scope of his employment as a car salesman for LeSage Motor Company, (2) that Wheat failed to keep a proper lookout for other vehicles on the highway, (3) that such failure was a proximate cause of the accident, (4) amount of damages, $2,800, (5) the accident was not unavoidable, (6) that Roy Wheat was not engaged on some mission or business of his own and not for the LeSage Motor Company, on the occasion in question, (7) that Mr. and Mrs. Smith were engaged in a joint enterprise, (8) that Mrs. Smith failed to keep a proper lookout for other vehicles on the highway immediately prior to the collision, (9) such failure was contributory negligence, (10) that Mr. Smith had not stopped his car, at the time, without giving a signal, (11) not answered, dependent upon No. 10, (12) that Mrs. Smith's disability is not solely the result of injuries or diseases suffered by her prior to the accident, (13) that Mrs. Smith, acting for herself and through her attorney, exercised reasonable diligence to have process issued within a reasonable time after the suit was filed.

After the verdict was returned, the defendants moved for judgment on the verdict, and the plaintiff moved for judgment notwithstanding the verdict. Defendants' motion was overruled and plaintiff's was granted, and judgment so entered, and the cause was appealed, after defendants' motion for a new trial was overruled.

Seven assignments of error, being numbered 2, 3, 7, 10, 11, 13 and 16, said numbers corresponding with such numbered paragraphs of the motion for a new trial, are presented.

The first assignment presented is No. 3 and it asserts that the trial court erred in overruling defendants' motion for a peremptory instruction. The proposition insists that since the cause of action accrued on June 12th, 1936, and the suit was filed June 11th, 1938, and citation was not issued upon instruction of plaintiff's counsel, the cause was barred by the two-year statute of limitations.

We see no merit in the contention for several reasons. First, Mrs. Smith was under the disability of coverture when she was injured, and her husband having died before the suit was barred by the statute (Art. 5526 R.C.S.) under the provisions of Art. 5535, R.C.S., she had the same time after the removal of her disability by reason of the death of her husband that is allowed to others by the provisions of the laws on limitations.

It is obvious that she exercised this right in less than two years after the cause of action actually arose.

Second. If the mere pleading of said statute of limitations, under the facts disclosed by the petition, is sufficient, and no necessity existed for pleading negligence on the part of plaintiff in causing citation to be issued, we find that the facts concerning the matter were given to the jury and the jury, in answer to issue No. 13, found no lack of diligence on the part of plaintiff and her counsel. We think the jury had ample evidence to support such finding. The case of San Saba Nat'l Bank v. Parker, Tex.Sup., 140 S.W.2d 1094, supports our views.

Assignment of error No. 2 is next presented, and it contends that the trial court erred in not sustaining the defendants' special exception No. 3, which complains that the plaintiff's petition does not sufficiently itemize the several items of damages sued for, viz.: hospital expense, physician's bill, physical suffering and loss of ability to earn a livelihood.

We think the pleading is specific and that it sufficiently sets forth the different items sued for. Farmers' & Mechanics' Nat'l Bank v. Marshall, Tex.Civ.App., 4 S.W.2d 165, writ dismissed.

Assignment of error No. 7 is next presented in these words: "The court erred in giving special issue No. 1 in that it is vague, indefinite and uncertain and should not have been given at all for the reason that the same is drawn in accordance with the definition of the phrase, `acting within the scope of his employer' in the Workmen's Compensation Law of Texas. Said law having been enacted in terms sufficiently broad and flexible to protect the employee and does not apply nor was it intended to apply to personal injury suits as in this case and as so drawn constitute a general charge in violation of the laws relating to the form of special issues on the weight of the evidence and indicates to the jury what the answer to special issue No. 1 should be in order to arrive at a favorable answer to the plaintiff and is therefore prejudicial. (See para. 7, Motion for New Trial, Trans. p. 111)."

The following proposition is urged in support of the quoted assignment of error:

"Since the proof showed that Roy Wheat, the driver of the car which collided with that of the plaintiff, was returning to his home at Graham from a mission on which he had embarked to Eliasville, Young County, Texas, which mission was concerned chiefly with the location of three ball players, but on which mission Wheat, if he had found a prospective car purchaser, would have undertaken to sell a car belonging to the defendant, LeSage; and since LeSage knew nothing about the trip by Wheat to Eliasville, and since the suit is one for damages at common law and not one for recovery of compensation under the Workmen's Compensation Act, the court erroneously instructed the jury as to the meaning of `scope of employment', in that he defined the phrase in accordance with the Workmen's Compensation Law of this State, and did not give the correct definition of that phrase, which is applicable to a common law action for damages where an employer is sought to be held liable for the negligence of his servant. (Germane to Asst. of Error No. 7, Trans. p. 111)."

Examining the record, as quoted by us, assignment of error No. 7 complains of the giving of Special Issue No. 1, and since the assigned error does not complain of the giving of such issue over the objection urged by the defendant against it, we must look to these objections in order that we may correctly interpret the assignment of error. It is fundamental that the appealing party, who presents error in the giving of an issue, must be relegated to and bound by the objections made by him to such issue. He cannot enlarge his objections either by his assignment of error, or by any supporting proposition. Appellant is complaining of the giving of Special Issue No. 1. Let us see what objections were urged against the issue. We find the following:

"Special Issue No. 1 is improperly submitted for the reason that there is no competent evidence in the case justifying the submission of such issue, all of the evidence being to the effect that Roy Wheat was on a private mission of his own upon the occasion in question.

"Special Issue No. 1 is drawn on the weight of the evidence in that it indicates to the jury by the verbiage used what the answer of the jury should be to said issue in order to find in favor of the plaintiff; furthermore, the same is vague, indefinite, uncertain and so broadly worded as to prejudice the possibility of a favorable finding thereon in favor of the defendants.

"In lieu of the Special Issue No. 1 the defendants request the following issue: `Do...