Smelcher v. Ingram, 15742
| Decision Date | 21 September 1956 |
| Docket Number | No. 15742,15742 |
| Citation | 294 S.W.2d 180 |
| Parties | J. H. SMELCHER, Appellant, v. Lee INGRAM, Appellee. |
| Court | Texas Court of Appeals |
McGown, Godfrey, Logan & Decker, and Winfred Hooper, Jr., Fort Worth, for appellant.
Burt & Baker and Joseph P. Burt, Fort Worth, for appellee.
Plaintiff, an employee at common law of the defendant, sued for damages because of personal injuries sustained as result of his employer's negligence. His pleadings were silent with respect to damages resulting from any loss of earnings, either already experienced or prospective. The defendant objected to any testimony with reference thereto, but such testimony was admitted over objection. He predicates a point of error thereupon. In the court's charge the jury was permitted to take such loss into consideration in arriving at its answer to the special issue on damages. The verdict was in behalf of the plaintiff and against the defendant. The defendant sought to appeal. The plaintiff moved to have the appeal dismissed on the ground that proper foundation therefor had not been timely laid.
Motion to dismiss the appeal overruled.
Judgment reversed and the cause remanded.
(1, 2) Sometime prior to the time judgment was entered in the case, though after a verdict was returned, the defendant filed a 'Motion to set aside Verdict and grant New Trial', the ground of which was jury misconduct. Thereafter, the trial court conducted a hearing in the matter, during the course of which eight of the jurors testified. On the same day that the hearing was had a judgment was entered in favor of the plaintiff, based upon the verdict earlier received. The defendant filed original and amended motions for new trial, which were timely if the judgment and its entry date be all necessary of consideration, but which could not be considered as the basis for the appeal if the motion setting up jury misconduct should be considered as a motion for new trial within contemplation of the Texas Rules of Civil Procedure relating to prerequisites of appeal in jury cases.
It seems clear that in his motion relative to jury misconduct the defendant was attempting to obtain a court order which would operate to terminate the trial without the entry of any judgment whatever. That being so, and since within the limitation of the Rules we believe we are obliged to liberally construe the law in favor of the right of appeal, we hold that under the cimcumstances of this case the defendant's motion should not be considered at all in relation to the steps prerequisite to any appeal. This done, the defendant's original motion for new trial was that filed subsequent to the date judgment was entered, later amended by him, and upon which amendment the appeal was founded. See 41-B Tex.Jur., p. 888, 'Trial-Civil Cases', sec. 642, 'Mistrial and New Trial Distinguished'.
The plaintiff's motion to dismiss the appeal is overruled.
(3) The judgment must be reversed and the cause remanded because of an absence of pleadings to support the judgment in respect to...
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