St. Louis & S. F. Ry. Co. v. Clifford

• Decision Date: 18 May 1912
• Citation: 148 S.W. 1163
• Parties: ST. LOUIS & S. F. RY. CO. v. CLIFFORD.
• Court: Texas Court of Appeals

148 S.W. 1163

ST. LOUIS & S. F. RY. CO. v. CLIFFORD.

Court of Civil Appeals of Texas. Dallas.

May 18, 1912.

Rehearing Denied June 8, 1912.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by P. V. Clifford against the St. Louis & San Francisco Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Andrews, Ball & Streetman, of Ft. Worth, and Head, Smith, Hare & Head, of Sherman, for appellant. Wolfe, Maxey, Wood & Haven, of Sherman, for appellee.

RASBURY, J.

Appellee sued appellant in the district court of Grayson county for damages for personal injuries alleged to have been sustained by him July 14, 1910. Appellee was a mail clerk in the employ of the federal government, and resided in Jackson county, Mo. Appellant is a corporation incorporated under the laws of the state of Missouri, and a common carrier. Appellee claimed that while in the performance of his duties on one of appellant's passenger trains as a passenger between the towns of Troy and Ravia, in the state of Oklahoma, the train was negligently derailed and wrecked, and he was seriously injured. Appellant answered by general denial, and specially pleaded assumed risk and contributory negligence. The cause was tried by jury, and resulted in a verdict and judgment for appellee for $8,500, from which appellant has appealed and the case is here for review.

Appellant's first assignment of error complains of the exclusion of certain testimony sought to be elicited by appellant. While Dr. R. A. Sullivan, witness for appellee, was on the stand being cross-examined, the following questions were asked and answered: "Q. Do you mean to say that you haven't taken this character of case on percentage of the amount that is gotten? A. I charge for my services rendered just like any other case. Q. Is that true in all cases? A. I might get a percentage out of some. I don't know. Q. Do you know a fellow by the name of Frank Kelly? A. Yes, sir. Q. How long were you treating him? A. Oh, about five or six months; longer than that perhaps. I don't remember how long. Q. Are you charging Mr. Clifford the same as you did Kelly?" To the last question the court sustained objection, and appellant excepted. Appellants expected to prove by the witness that he was charging appellee for medical attention in the same manner that he had charged one Kelly, and to then develop the fact that he had charged Kelly a percentage, and was in like manner to receive a percentage from Clifford, and by such testimony come within the rule announced in Horton v. Railway Co., 46 Tex. Civ. App. 639, 103 S. W. 469, holding such evidence at the discretion of the trial judge admissible to show the interest and bias of the witness. While the trial judge refused to permit the witness to state whether or not he was charging appellee the same as he did Kelly, yet the record shows that he did testify what his arrangement with appellee was. The witness testified that he was not attending appellee on a percentage; that he had no particular arrangement or understanding with appellee about his charges; that appellee was to pay him as any other patient would when he got the money to do so; that he did not know exactly what appellee's bill would be; that $2.50 to $4 and up a visit is reasonable and usual; that he might have gotten a percentage out of some cases; that his charges against appellee were to be the same that they would be against any other patient. The evidence of the witness was full as to whether he was receiving from appellee a percentage of any judgment appellee might recover, and to that extent met the rule in Horton v. Railway Co., supra. The other testimony held to be admissible in that case was that the witness habitually was called to testify in such cases by Horton's counsel. In the instant case that fact was not attempted to be proved. Consequently, since the witness testified what his arrangement with appellee was and because the admission of collateral issues is largely at the discretion of the trial court, we conclude the court did not abuse its discretion, and that the assignment shows no material error. Horton v. Railway, supra; Railway Co. v. Bailey, 53 Tex. Civ. App. 295, 115 S. W. 601.

Appellant's second assignment of error complains of the overruling of its motion for new trial sought because of newly discovered evidence. The evidence was that of Dr. John G. Lapp, whose testimony by deposition was read in evidence on the trial. The affidavit of Dr. Lapp containing the newly discovered evidence was as follows: "I reside in Kansas City, Mo. My office is in Keith & Perry Building. On January 2, 1911, Paul V. Clifford came to my office for an examination. I made a very thorough examination. Stripped him and examined him very thoroughly and completely. I found absolutely no evidence of an injury or disability of any kind. It was the second time I had examined him. I thought the first time he was only pretending to have an injury and determined to see if I could find any evidence of any injury. I asked him if he did not have a damage suit pending and he said he had not, that it had all been settled. I am positive that he had at that time no injury or disability of any kind." Also certain other newly discovered evidence which was shown by the affidavit of W. B. Webb, of Kansas City, who stated substantially that he was chief clerk in the railway mail service station in Kansas City; that by his direction appellee was examined by different physicians and given certificates of inability to perform his duties from September, 1910, to January, 1911, one of them by Dr. Lapp; that Dr. Lapp in the January, 1911, examination claimed appellee was able to perform his work; that Clifford was not satisfied with the last certificate, and claimed he was not able to work; that witness thereupon gave him a sick lay off for 30 days, expiring February 3, 1911; that appellee drew his salary up to January 4, 1911, but after Dr. Lapp's second certificate, while he allowed appellee to draw his pay, he required him to hire a substitute for 30 days; that at the end of 30 days sick lay off appellee was granted sick lay off without pay; that appellee worked November 30th, December 1st, 2d, and 3d, and then took a lay off, claiming he was unable to do the work....