Texas Cities Gas Co. v. Gomez

• Decision Date: 05 March 1942
• Docket Number: No. 11345.,11345.
• Citation: 160 S.W.2d 74
• Parties: TEXAS CITIES GAS CO. v. GOMEZ.
• Court: Texas Court of Appeals

160 S.W.2d 74

TEXAS CITIES GAS CO. v. GOMEZ.

No. 11345.

Court of Civil Appeals of Texas. Galveston.

March 5, 1942.

Rehearing Denied March 26, 1942.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

Suit by A. T. Gomez against the Texas Cities Gas Company for allegedly causing plaintiff's wife fright and shock, and aggravating a serious heart ailment from which she was suffering. From judgment in favor of the plaintiff, defendant appeals.

Judgment affirmed.

Terry, Cavin & Mills, of Galveston, and Thompson, Knight, Harris, Wright & Weisberg, of Dallas, for appellant.

Joseph L. Joseph and Byron Economidy, both of Galveston, for appellee.

GRAVES, Justice.

This is a damage suit, brought by A. T. Gomez against Texas Cities Gas Company, the petition invoking the aid of the doctrine of res ipsa loquitur, complaining of the acts of appellant's employees in permitting great quantities of strongly odorized gas to be loosened in and to erupt from its lines, and to permeate that entire neighborhood, with accompanying noise and eruption of sand nearby to and against appellee's home, allegedly causing appellee's wife fright and shock, and aggravating a serious heart ailment, from which she was at that time suffering. Appellant filed a general denial.

On the issues submitted, the jury found for the appellee, and returned a verdict for $10,000. Appellant's amended motion for new trial was overruled by the court's order on the 24th day of July, 1941, in which exception was duly noted, and notice of appeal was given.

The jury's findings, other than the indicated amount for damages, were, in substance, these:

That the gas eruption had not been the result of an unavoidable accident, that it had been caused through appellant's negligence, that as a result of it Mrs. Gomez had suffered a fright or shock which aggravated or made worse her heart ailment, and that appellant's stated negligence had been a proximate cause of that aggravation; that prior to the gas eruption an agent of appellant had not given the appellee, Mrs. Gomez's husband, in substance, notice "that there would be considerable gas escaping, that he wanted all fires and lights put out and for no one to strike a match, that he was going to have to close the doors to the garage, and that the door and window upstairs would have to be closed"; that Mr Gomez did not communicate such information to his wife, but his failure to do so did not constitute negligence on his part.

On appellee's motion, the appealed from judgment was entered upon the jury's verdict only, the court having made no independent findings of its own.

Through 18 points appellant inveighs against the $10,000 judgment so entered against it, which in epitome are:

(1) The court should have granted its motion for an instructed verdict in its favor at the close of all the testimony, "because the only evidence offered to prove that Mrs. Gomez's heart-trouble was aggravated was incompetent and conjectural".

(2) Testimony by Dr. Jinkins that, "if a patient were suffering from auricular fibrillations and congestive heart failure, it would not be advisable on the part of a physician to perform a sterilization operation", was erroneously admitted.

(3) The court erred "in permitting Mrs. Gomez to testify that after she discovered she had `a little heart trouble' she left out vigorous exercise and `got along fine'; that after her sterilization operation, up until the time of the accident in question, she was `getting along all right'; that prior to the accident she would, on experiencing a heart attack, take `one little tablet, and that would revive my heart and I would be all right'."

(4) There was no evidence to support either the submission of, or the jury's answer to, special issue No. 4.

(5) The court improperly allowed appellee's counsel to argue to the jury that appellant should have brought Dr. Stephen to testify as to Mrs. Gomez's life expectancy prior to the accident in question.

(6) The court erred in permitting both Mr. and Mrs. Harry Rigden to testify that they had received no notice from appellant that "this thing was going to happen".

(7) The court erred in not striking out the witness Norton's testimony that "he believed he heard the salesman say that Mueller equipment is pretty fast, that you can insert a valve in a very short space of time by the use of it", on the ground that it was hearsay.

(8) The court erred in refusing appellant's motions to strike appellee's answer about his telling appellant's superintendent that Dr. Stephen had put his wife to bed because she was frightened, and to instruct the jury that such statement should have no bearing, except to show notice, nor be taken as evidence of appellee's wife's condition.

(9) The court erred in permitting appellee to testify that his house shook when the eruption first happened, on the ground that the question eliciting it was a leading one.

(10) A new trial should have been granted appellant on its claim that the $10,000 verdict was excessive.

(11) The court erroneously permitted various witnesses in the vicinity of appellee's home to testify that they were frightened, or scared, when the eruption occurred.

(12) The testimony of appellant's witness Norton that it was necessary to maintain a continuous pressure in serving gas to hospitals on the same line as that which was cut on the occasion in question was erroneously excluded.

(13) The court erred in permitting the witness Nicholls to testify that about March 24 he received a letter from appellee's counsel to the effect that Mrs. Gomez had heart trouble.

The appellee strenuously objects to this court's consideration of several of appellant's assignments as being insufficient to raise different ones of the points it has so posed here; but in the somewhat confused and transitional state of our procedural law attendant upon the change from the old rules of practice and procedure in civil actions to the new ones—especially in causes like the one at bar, where the old rules were in effect when the cause was tried below but the new ones had superseded them at the time appellant's brief on appeal was filed—as well as upon an appraisement of their intrinsic character, it is determined that none of these objections should be sustained.

Wherefore, no seriatim nor extended discussion of the objections will be indulged in, but comment upon a few may not be amiss.

Appellant's assignment No. 1, to the simple effect that the trial court erred in overruling its motion to instruct the jury to return a verdict in its favor, is attacked as being insufficient, "because it is too broad and does not set out any reason why the court erred in failing to instruct a verdict in appellant's favor"; this invokes new rule —not in effect at that time—No. 268, which requires the specific grounds for requesting an instructed verdict to be stated, as against no such requirement in the old rule then in effect. It is held:

(1) That no such specification was then indispensable; Clarendon Land Investment & Agency Co. v. McClelland, 86 Tex. 179, 23 S.W. 1100, 22 L.R.A. 105; Lang v. Harwood, Tex.Civ.App., 145 S.W.2d 945; Standard v. Texas Pacific Coal & Oil Co., Tex.Civ.App., 47 S.W.2d 443; Harlington Land & Water Co. v. Houston Motor Car Co., Tex.Com.App., 209 S.W. 145, and Harlingen Land & Water Co. v. Houston Motor Co., Tex.Civ.App., 160 S.W. 628; Shell Petroleum Corp. v. Howth, Tex.Civ. App., 133 S.W.2d 253; Smeltzer v. McCrory, Tex.Civ.App., 101 S.W.2d 850; Gutierrez v. Uribe, Tex.Civ.App., 104 S.W.2d 569, at page 570; White v. Lone Star Wool-Mohair Co-operative Ass'n, Tex.Civ.App., 95 S.W. 2d 178, at page 180.

(2) That, in any event, since appellant invokes that relief in this court under new rule No. 431, its brief in this court may be so amended as to interpolate its second assignment of error in its motion for a new trial below, which did fully specify its declared reasons for such claimed error in refusing it a peremptory instruction. New Rule No. 422, enjoining a liberable construction of this revised system.

The second objection, in effect, that appellant's point 6 and its supporting assignment of error No. 51 are not sufficient to raise the claim that there was no evidence to...