Traders & General Ins. Co. v. Russell

• Decision Date: 30 October 1936
• Docket Number: No. 13439.,13439.
• Citation: 99 S.W.2d 1079
• Parties: TRADERS & GENERAL INS. CO. v. RUSSELL.
• Court: Texas Court of Appeals

99 S.W.2d 1079

TRADERS & GENERAL INS. CO. v. RUSSELL.

No. 13439.

Court of Civil Appeals of Texas. Fort Worth.

October 30, 1936.

Rehearing Denied December 18, 1936.

Appeal from District Court, Van Zandt County; G. O. Crisp, Judge.

Consolidated proceedings under the Workmen's Compensation Law by J. M. Russell and wife for the death of William Scott Russell, their son, and by Mrs. Odessa Russell for the death of William Scott Russell, her husband, claimants, opposed by T. E. Mercer, employer, and the Traders & General Insurance Company, insurance carrier. The parents' proceeding was dismissed, and, from a judgment for Mrs. Odessa Russell, the insurance carrier appeals.

Reversed and remanded.

Ramey, Calhoun & Marsh, of Tyler, Wynne & Wynne, of Wills Point, and Lightfoot & Robertson, of Fort Worth, for appellant.

Caldwell, Gillen, Francis & Gallagher, of Dallas, and A. A. Dawson, of Canton, for appellee.

DUNKLIN, Chief Justice.

T. E. Mercer was engaged in the general trucking, teaming, and contracting business, using various truck drivers, and driving trucks of various sizes and makes for the transportation of oil field equipments, materials, and other wares for hire through Van Zandt county and other parts of East Texas.

In order to carry on that business, Mercer hired a large number of workmen and carried insurance under the Workmen's Compensation Law (Vernon's Ann.Civ.St. art. 8309 et seq.), with the Traders & General Insurance Company, a corporation duly incorporated under the laws of the state of Texas. William Scott Russell, usually called Bill Russell, was hired as one of his employees to drive a truck.

Between the hours of 2 and 3 o'clock of the afternoon of October 7, 1933, Russell left Fort Worth in a Chevrolet truck to go to Longview, Tex., by way of Dallas, Wills Point, Canton, Ben Wheeler, and Tyler, making the trip as a part of the duties of his employment. There was a cab on the truck in which the driver rode and it also had a bed for hauling gravel, which was empty. At about 7:30 in the afternoon of the same day the truck turned over on a curve about four miles east of Ben Wheeler and about 60 miles west of Gladewater, killing both Bill Russell and a companion riding with him at the time. The man riding with Russell, and whose name was not disclosed, is designated by witnesses as the older man and Russell as the young man.

Two separate suits were instituted to recover compensation insurance under the Workmen's Compensation Law. One of those suits was by Mrs. Odessa Russell, surviving wife of Bill Russell, and the other by J. M. Russell and wife, May Russell, the parents of Bill Russell. By order of the court, the two suits were consolidated and tried at the same time. A general demurrer was sustained to the suit by the parents, which was then dismissed and no appeal was prosecuted from that disposition of their case.

The other suit by Odessa Russell was tried before a jury and judgment was rendered in her favor against the insurance company for a lump sum settlement of $4,785.83, from which the insurance company has appealed.

In subsequent portions of this opinion, Mrs. Odessa Russell is the only plaintiff referred to.

By article 8309, Rev.Civ.Statutes, it is provided that the injury for which compensation may be allowed to an employee shall not include "an injury received while in a state of intoxication," and the burden was on the plaintiff in this case to show that the deceased was not in a state of intoxication at the time of his death. The jury found in plaintiff's favor on that issue.

Whether or not Russell was in a state of intoxication at the time of his death was the principally controverted issue on the trial.

The proof showed that the truck Russell was driving was identical with the one described in the testimony of all the witnesses.

Highway 67, on which Russell was traveling, crosses Highway 19 at the town of Ben Wheeler. Two filling stations were at the crossing, both on the right-hand side going east on Highway 67. The filling station on the west side of the crossing was known as "Sides Filling Station," and the one on the east side was known as "Ardis Johnson Filling Station."

The evidence chiefly relied upon by the plaintiff to show that Bill Russell was not intoxicated at the time of the accident consisted of testimony of witnesses to his general habits of sobriety; some of whom testified to a close acquaintance with him for a considerable length of time before the accident and that they had never known him to take a drink of intoxicating liquor; also testimony of his wife that he was sober at the time he left Fort Worth, about 2:30 o'clock of the afternoon of the day of his death; also testimony of different witnesses who worked with the body of the deceased after his death, including the embalmer, that they detected no odor of liquor on his person, and saw no bottle of liquor near where his body was found.

T. B. Bell, witness for defendant, testified that, while hitchhiking from West Texas to his home at Old London, he caught a ride in the truck in question from a point a short distance east of Wills Point; rode in the cab for awhile with the young man and his elderly companion, but moved back into the empty gravel bed and later got out and caught another ride because, from the manner in which the young man was driving, witness feared a wreck; that, when he got in the truck, the elderly man, who was pretty drunk, offered him a drink of whisky from a pint bottle about two-thirds full and witness drank therefrom.

The proof further showed that Weldon Duncan, Kenneth Coursey, Howard Goode, Lee King, and Ardis Johnson were at the Johnson filling station when the truck stopped there for about ten minutes, after it had veered to the right side of the road, narrowly missed striking Kenneth Coursey and Howard Goode, who were standing at the Sides filling station, and then skidded across the intersection and stopped at the Johnson filling station.

According to the testimony of some of those witnesses, Russell staggered from the truck into Johnson's filling station and, when he re-entered the truck, he fell against the elderly man who was riding with him in the cab. Some of those witnesses gave it as their opinion that Russell was drunk; that when he went into Johnson's station he offered to pay for a drink of water which Johnson had given him; that he inquired where he could purchase beer, and said that his name was Bill Russell; that he was making a trip from Fort Worth to Gladewater and had to be there by 7 o'clock that evening.

Several assignments of error are presented here to the exclusion of certain testimony offered by the defendant as to certain conversations between some of the witnesses and Russell while he was at the Johnson station. The court ruled that the statements made by Russell in those conversations were admissible, but that what was said by the witnesses to him were not admissible.

The defendant offered the testimony of the witness Lee King, who said to Bill Russell just before the latter left the Johnson station: "Kid, you ought to drive this truck out on the highway and park it until you are sober enough to drive," to which Russell replied, "I have got to get to Gladewater and am two and a half hours late;" that Russell then inquired of the witness how far it was to Gladewater and the witness replied that it was over 60 miles, whereupon Russell stated that he would be in Gladewater in an hour or two, and the witness told him that he was drunk and in no condition to drive the truck and that he would be "in hell" in less than 30 minutes if he did not sober up before going further.

The court excluded the testimony as to what King said to Russell, and also the testimony of Weldon Duncan, Kenneth Coursey, and Howard Goode that they heard the conversation between Lee King and Russell, and that it was substantially to the same effect as the proffered testimony of the witness King.

Defendant offered further testimony of Kenneth Coursey that he heard Ardis Johnson tell Russell that he was in no condition to be out on the highway and advised him to stay around the filling station until he could sober up, which was likewise excluded by the court on plaintiff's objection thereto.

All of the proffered testimony of those witnesses was excluded by the court on objection that it was hearsay.

The statements so made by the witnesses to Russell naturally called for some reply by him, and there is nothing to suggest that he was deprived of an opportunity to make reply.

In 17 Tex.Jur. § 235, p. 568, this statement is made:

"A person's silence where he is at liberty to speak, and the circumstances naturally call upon him to do so, may be considered as a tacit admission of statements made to him or in his presence, so as to make such statements admissible against him." Numerous decisions are cited in the footnotes supporting that announcement.

And a like statement of the same rule is...