Thompson v. Graham

• Court: Texas Civil Court of Appeals
• Writing for the Court: GRISSOM
• Citation: Thompson v. Graham, 318 S.W.2d 102 (Tex. Ct. App. 1958)
• Decision Date: 24 October 1958
• Docket Number: No. 3405,3405
• Parties: L. R. THOMPSON et al., Appellants, v. D. E. McAlister GRAHAM et vir, Appellees.

Page 102

318 S.W.2d 102

L. R. THOMPSON et al., Appellants, v. D. E. McAlister GRAHAM et vir, Appellees.

No. 3405.

Court of Civil Appeals of Texas, Eastland.

Oct. 24, 1958.

Rehearing Denied Nov. 21, 1958.

Dan Abbott, Abilene, for appellants.

Wagstaff, Harwell, Alvis & Pope, Abilene, Mays, Leonard & Moore, Sweetwater, Upton, Upton, Baker & Griffis, San Angelo, for appellees.

GRISSOM, Chief Justice.

On October 9, 1953, L. R. Thompson, an employee of Ace Drilling Company, was injured by the falling of a steel ladder which had been placed in position, but not bolted to the derrick floor, by employees of D. E. McAlister Graham. This is a recoupment suit by Thompson and the insurance carrier against the alleged negligent third party who caused Thompson's injury. Thompson alleged he suffered an almost complete paralysis of his body from the waist down. He was paid compensation by Employers Mutual Liability Insurance Company of Wisconsin, the insurance carrier for Ace Drilling Company. On January 18, 1957, Thompson sued D. E. McAlister Trucking Company, 'a corporation', for damages alleged to have been caused by its negligence in failing to bolt the ladder to the derrick floor. Said defendant answered as a corporation. On January 28, 1958, Thompson filed a second supplemental petition wherein he alleged he had been informed by defendant that 'at the time this cause of action arose on or about the 9th day of October, A.D., 1953, D. E. McAlister Trucking Company was not, in fact a corporation.' He then sued D. E. McAlister Graham, a married woman, doing business as McAlister Trucking Company, and made her husband, Paul Graham, a defendant. On the same day an agreement was made for such substitution and other matters and filed in this case. Said agreement concluded as follows:

'It is further stipulated and agreed that all depositions heretofore taken in this cause, all pleadings heretofore filed in this cause, and all orders of the court heretofore entered in this cause and all stipulations and agreements entered into in this cause by and between L. R. Thompson and D. E. McAlister Trucking Company, a corporation, shall be considered as having been refiled on behalf of and against the plaintiff, L. R. Thompson, and the defendants, D. E. McAlister Graham and her husband Paul Graham and shall be binding upon the plaintiff, L. R. Thompson, and the defendants, D. E. McAlister Graham and Paul Graham at such time as said supplemental petition is filed and all parties shall have the use of all pleadings, orders and agreements heretofore signed, filed and entered by and between the plaintiff L. R. Thompson and the former defendant, D. E. McAlister Trucking Company, a corporation, as if each of such pleadings and agreements had been filed and all orders of the court had been entered contemporaneously with the filing of the supplemental petition substituting parties defendant.'

Said stipulation was approved by an order of the court, the concluding paragraph of which is as follows:

'It is furthermore, ordered, adjudged and decreed, that all depositions, pleadings, stipulations, and agreements and orders of court entered into or filed before the substitution of said parties defendant, for D. E. McAlister Trucking Company, a corporation, are ordered refiled as of the time of the filing of said plaintiff's supplemental petition substituting parties, and all stipulations and agreements shall enure to the use of and shall be binding upon D. E. McAlister Graham and her husband Paul Graham as if it had been filed, entered into, or ordered contemporaneously with the filing of said supplemental petition naming D. E. McAlister Graham and her husband, Paul Graham, parties defendant in lieu of D. E. McAlister Trucking Company, a corporation.'

Theretofore, on January 21, 1958, Thompson and McAlister Trucking Company had stipulated that the reasonable and necessary medical, hospital and pharmaceutical expenses incurred as the result of Thompson's injury amounted to $5,865 and that same 'have been paid' by said insurance company. Said agreement then continued as follows:

'It is further agreed and stipulated that on October 23, 1953, The Employers Mutual Life Insurance Company of Wisconsin, the Workmen's Compensation carrier for Ace Drilling Company, the employer of the Plaintiff, L. R. Thompson, assumed the payment of Workmen's Compensation Insurance benefits to the Plaintiff L. R. Thompson and paid him a total of $9,527.75.'

The agreement was filed in this case on January 22, 1958.

The case was set for trial on February 3, 1958. On that day Thompson tried to file his third supplemental petition in which he alleged said insurance carrier did not assume liability for payment to plaintiff of compensation for total and permanent disability until December, 1956, and 'said lump sum payment, contemplating the balance due for total and permanent disability, was not paid to the Plaintiff herein until the 28th day of December, A.D., 1956.'

The court refused to allow Thompson to file said petition because it was 'in apparent conflict' with the stipulation of January 21st. It then sustained defendants' exceptions that its liability depended upon the terms of the contract between it and Ace Drilling Company and that the terms of said contract were not alleged and that plaintiff's cause of action was barred by the two years statute of limitations, Vernon's Ann.Civ.St. art. 5526. The court then dismissed the case. That order recites that said exceptions were presented and the court considered the pleadings and 'stipulation on file' and sustained said exceptions.

'And it further appearing that the plaintiff declined to amend or further plead, other than by his third supplemental petition, which the Court has heretofore refused to allow to be filed, the cause is dismissed.'

Thompson and the insurance carrier have appealed.

On February 3, 1958, said insurance carrier had filed a plea in intervention, alleging that it carried the workmen's compensation insurance and 'was required to' and did pay compensation to Thompson for total and permanent disability amounting to $15,392.81. It prayed that it be paid said sum, plus attorney's fees, out of any money awarded Thompson.

Appellants contend, among other things, in effect, that the court erred in sustaining appellees' contention that limitation commenced running against plaintiffs' cause on October 23, 1953, and in holding that appellants' stipulation amounted to an admission of facts that show conclusively that limitation then started to run. Appellants say that said agreement merely meant that payments were then commenced and left the date payments were consummated and the amount to be paid uncertain; that the real meaning is that the insurer commenced payment on October 23, 1953, and eventually paid $9,527.75 and that, in fact, payment was consummated and limitation did not commence to run until December, 1956. In connection therewith appellants call attention to the fact that in February, 1957, the insurance carrier and Thompson entered into an agreement, to which appellees were not parties, that said insurer 'on or about the 21st day of December, A. D., 1956, assumed full liability for payment to * * * Thompson for total and permanent * * * disability' which had been paid to Thompson as of January 1, 1957, and that said insurer was entitled to recover under their subrogation $15,392.81 from any amount recovered from the D. E. McAlister Trucking Company. Said stipulation was filed in this case on March 8, 1957. Appellants say that construing the stipulation between Thompson and appellees as a whole, it does not conclusively appear that it was agreed that the insurer assumed 'liability' for payment of compensation for total and permanent disability on October 23, 1953, but that if such was the effect of that writing it was not the true intention, was a mistake, and, further, that its counsel was not authorized to make such an admission. Appellants say an effort was made to correct same and the court should have allowed the filing of Thompson's third supplemental petition; that appellees did not rely on said so-called admission as establishing a material fact because they knew from the agreement between Thompson and the insurer filed in this case in March, 1957, that compensation payments were not concluded until December, 1956, and, further, that the stipulation does not admit that 'full payment' was made in October, 1953, and from the record it is evident payment was not made until December, 1956.

Setting aside a stipulation ordinarily is within the discretion of the trial court. Porter v. Holt, 73 Tex. 447, 11 S.W. 494; Hancock v. Winans, 20 Tex. 320; Pisano v. Texas & N. O. R. Co., Tex.Civ.App., 112 S.W.2d 316 (Writ Dis.). Stipulations may generally be received as judicial admissions in the absence of allegations and proof of fraud, mistake or lack of authority. City of Beaumont v. Stephenson, Tex.Civ.App., 107 S.W.2d 915 (Writ Dis.). But, upon proper allegation and proof, it may be established, or an issue of fact may be raised, as to authority, fraud or mistake, or an ambiguous stipulation may be explained. If the agreement is ambiguous, or there are allegations of fraud or mistake a litigant should ordinarily be permitted to present such proof, especially when his and another's cause would be otherwise barred.

Appellees say they have never...