Schnick v. Morris

• Decision Date: 18 December 1929
• Docket Number: (No. 1904.)
• Citation: 24 S.W.2d 491
• Parties: SCHNICK v. MORRIS et al.
• Court: Texas Court of Appeals

24 S.W.2d 491

SCHNICK v. MORRIS et al.

(No. 1904.)

Court of Civil Appeals of Texas. Beaumont.

December 18, 1929.

Rehearing Denied January 15, 1930.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Suit by Hyle Morris against William Schnick and another. Judgment for plaintiff, and motion for new trial overruled, and the defendant named appeals. Affirmed.

E. C. Gaines, of Austin, and W. J. Brown and Chas. D. Smith, both of Beaumont, for appellant.

Howth, Adams & Hart and Howell & Howell, all of Beaumont, for appellees.

O'QUINN, J.

Morris sued Schnick and the Beaumont Bakery Company, a corporation, for damages growing out of a collision between the motorcycle on which he was riding and an automobile driven by William Schnick, Jr., son of defendant William Schnick.

For cause of action plaintiff alleged that on June 22, 1926, while operating his motorcycle on Park street in the city of Beaumont, Tex., and while operating same carefully and at a proper distance behind an automobile going in the same direction as he was traveling, said automobile being then and there owned by the defendants William Schnick and the Beaumont Bakery Company, and which was then being operated by the defendant's duly authorized agent, William Schnick, Jr., said automobile, which was just ahead of plaintiff, was negligently and suddenly turned and driven to the left across said Park street at about the middle of the block, thereby causing said automobile to violently collide with plaintiff's motorcycle, directly and proximately causing the injuries of which he complained; that said automobile was owned either jointly by said defendants, or by one of them, and was being operated by William Schnick, Jr., son of defendant William Schnick, with the consent of said William Schnick, in the furtherance of said William Schnick's business, or, in the alternative, was being operated by said William Schnick, Jr., as the agent of the said Beaumont Bakery Company, and in the furtherance of its business.

The acts of negligence alleged on the part of defendants were:

(a) Negligence of said William Schnick, Jr., agent of defendants operating said automobile, in carelessly and negligently and suddenly, and without warning to those traveling behind said automobile, turning said car to the left directly across the street in front of plaintiff's motorcycle, thereby occasioning said collision, and rendering it impossible to prevent a collision between said automobile and plaintiff's motorcycle;

(b) Negligence on the part of the driver of said automobile in failing to give any signal, such as was reasonable and in compliance with the law of the road and the ordinances of the city of Beaumont, before turning to the left to cross the street in the middle of the block, as charged;

(c) Negligence in suddenly turning the automobile from the right-hand side of Park street and driving same to the left-hand side across said street between the intersections of said street with Emmett and Austin streets, instead of proceeding northward to the intersection of Park street and Austin street and then making such left-hand turn;

(d) Negligence in that said defendants, jointly and separately, in the manner charged in sections (a), (b), and (c), mentioned above, violated a certain ordinance of the city of Beaumont then and there in full force and effect, by reason of which they were guilty of negligence as a matter of law;

(e) Negligence in that said defendants, in the matters alleged in sections (a), (b), and (c), violated the provisions of an ordinance of the city of Beaumont, which required a person in charge of a vehicle desiring to make a left turn or change the course or speed, shall make same known by giving signal with his hand, in that the driver of the automobile in question failed, when making a left-hand turn and changing the course and speed of the said car, to give proper signal, as required by said ordinance, and said failure was negligence per se;

(f) That the matters alleged in the preceding sections constituted common-law negligence; and,

(g) Negligence in that the place where the collision occurred was within the corporate limits of the city of Beaumont, and was a place where there was constant travel by automobiles and otherwise by the public at all times, and that such travel was so intensive as to render it proper and necessary for the driver of a motor vehicle not to turn in the middle of the block, but to proceed to the next street crossing, as required by the city ordinance alleged, and, further, should necessity arise for one operating a motor vehicle to turn to the left in the middle of the block, the driver of said vehicle should exercise great care before beginning to make such turn to give such signals to those approaching from behind as that they could see and understand that a turn to the left was being made and avoid a collision, and the failure of the driver of the automobile in question to give said signals, or if given, to give them in time for the drivers of vehicles behind to slow up and avoid a collision, was negligence, and the proximate cause of the injury.

Defendants answered by plea in abatement, to the effect that plaintiff, at the time of the injury, was covered by compensation insurance carried by the Ocean Accident & Guaranty Corporation, Limited, and that plaintiff had claimed and accepted payment by said insurer for his injuries, and that said insurer was thus subrogated to the primary right to bring suit for damages growing out of said collision, and that plaintiff could not institute suit for said damages solely in his own name without reference to said insurer or its rights, and that, as plaintiff's pleading in no way referred to said insurer or its rights, or provided any relief or protection to it whatever, plaintiff's suit should be abated. This plea was overruled, and defendants then answered by general demurrer, several special exceptions, the two years' statute of limitations, a general denial, and plea of contributory negligence on the part of plaintiff.

Among the matters pleaded by defendant relative to its plea in abatement was the following:

"If these defendants could be mistaken in the fact that said suit is forever barred, then it appearing that said insurance company has paid compensation in the sum of about $1390.00, said company would be subrogated to the rights of plaintiff and a primary right to sue for damages herein would lie in said insurance company and could not be exercised by this plaintiff unless and until it appears that facts exist which would authorize the plaintiff to file such suit."

"It further appearing that said insurance company has paid said compensation, it follows as a matter of law that said company becomes subrogated to all rights of this plaintiff to the extent of all compensation paid or to be paid and to all expenses of collecting same, in the aggregate sum of about $2000.00, and said company is, therefore, a joint owner of any cause of action that might exist against these defendants, and this suit cannot proceed by plaintiff alone unless and until said insurance company is made a party to this suit so that any right it may have may be adjudicated."

The court overruled the plea in abatement and the several exceptions. The Ocean Accident & Guaranty Corporation, Limited, the compensation insurance carrier, mentioned by defendant, appeared by counsel and requested permission to intervene in the suit, to which defendant objected, which objection was overruled and the intervention granted.

The trial was to a jury upon special issues, in their answers to which the jury acquitted plaintiff of contributory negligence, and found in favor of plaintiff on the issues of negligence by defendant causing the collision and awarded plaintiff damages in the sum of $7,500. Judgment was accordingly entered. Motion for a new trial was overruled, and the case is before us on appeal.

There were no exceptions to the court's charge, nor any special charges or issues requested to be given, or submitted.

Appellant's first proposition that under the evidence appellee was "clearly guilty of contributory negligence," and therefore the judgment should not be permitted to stand, is overruled. Whether appellee was guilty of contributory negligence was a question of fact, and the state of the evidence is not such that the minds of reasonable men would not differ in arriving at a conclusion thereon. The question was submitted to the jury, and they acquitted appellee of contributory negligence, and we think there is ample evidence to support the finding.

The second proposition complains that the evidence is not sufficient to support the verdict of the jury in finding appellant guilty of negligence. This proposition is overruled. The jury's verdict has support in the record.

The third proposition urges that the damages assessed by the jury is excessive, out of proportion to the injuries shown, and should be set aside. The main injury shown was to the right heel. The injury occurred on June 22, 1926. The case was tried February 28, 1929. At that time the injury had not healed, but was still causing much suffering, although several doctors had treated it and there had been at least three attempts to graft new skin over the wound.

Morris testified: "I suffered an injury to my right heel in this accident. It raked the meat entirely off of the right heel nearly. It was just hanging on by a little meat. It pulled the entire heel off nearly. All that was holding the heel on was a little piece of meat. I was also bruised in my stomach. It hurt my head and the left side of my face. The heel of my right foot is still disabled. I can't walk on that foot very much at this time. I can walk on it a certain length of time and it pains me quite a bit and I have to rest. I am not able to work on that foot. I have not been able to do any manner of work since this accident. I have...