Traders & General Ins. Co. v. Scott

• Decision Date: 07 September 1945
• Docket Number: No. 14702.,14702.
• Citation: 189 S.W.2d 633
• Court: Texas Court of Appeals
• Parties: TRADERS & GENERAL INS. CO. v. SCOTT et al.

189 S.W.2d 633

TRADERS & GENERAL INS. CO. v. SCOTT et al.

No. 14702.

Court of Civil Appeals of Texas. Fort Worth.

September 7, 1945.

Rehearing Denied October 12, 1945.

Appeal from District Court, Wichita County; H. W. Fillmore, Judge.

Suit under the Workmen's Compensation Act by Traders & General Insurance Company to set aside an award of the Industrial Accident Board in favor of Mrs. R. G. Scott and her minor daughter, surviving beneficiaries of R. G. Scott, deceased, an employee of Roy Broadway, who carried Workmen's Compensation on his employees with plaintiff, wherein the above-named beneficiaries filed a cross-action. From an adverse judgment, the plaintiff appeals.

Affirmed.

Lightfoot & Robertson and Dan P. Johnston, all of Dallas, and Turner & Seaberry, of Eastland, for appellant.

Bert King and Arch Dawson, both of Wichita Falls, for appellees.

SPEER, Justice.

This is a workman's compensation case. Traders & General Insurance Company, the insurance carrier, appealed to the District Court of Wichita County from an award made by the Industrial Accident Board in favor of Mrs. R. G. Scott and her minor daughter, Jo Ann Scott, surviving beneficiaries of R. G. Scott, deceased, an employee of Roy Broadway, who carried Workmen's Compensation on his employees.

The above named beneficiaries answered by general denial and cross action against Traders & General Insurance Co. and recovered judgment on their cross action. The insurance carrier appealed and will be referred to by us as appellant and the beneficiaries will be called appellees.

Appellant's appeal from the award to the District Court was based primarily upon the theory that deceased received the injury from which he is alleged to have died while in a state of intoxication. Second Subsection 3 under section 1, Article 8309, Vernon's Texas Annotated Civil Statutes. By appropriate pleadings of all parties, the issue was made and tried to a jury, resulting in a verdict and judgment thereon in favor of appellees.

At the outset we are confronted with an objection by appellees to a consideration by us of any of appellant's points of error except two, they being appellant's contention that it should have had an instructed verdict and in any event, the court should have granted its motion for judgment notwithstanding the verdict.

The objections of appellees are substantially to the effect that appellant's points of error cannot be considered because they were raised only in an amended motion for new trial which was filed too late and therefore ineffective for any purpose.

The record discloses without dispute that judgment was entered February 5, 1945; that appellant filed its motion for new trial on the same day; the motion for new trial assigned error of the court in not granting its motion for an instructed verdict and having failed to do so, error in refusing to grant its motion for judgment non obstante veredicto. On March 1, 1945, appellant filed its amended motion for new trial (more than twenty days after filing its original motion). On the same day, March 1, 1945, appellant filed a motion with the trial court showing reasons for not having sooner filed its amended motion and asked that its amended motion be filed back as of date February 24, 1945, and on same day filed a motion asking that its original motion filed February 5, 1945, be refiled as of February 12, 1945. On that same day the court sustained both motions for refiling and filing back and the original motion bears the clerk's file marks of February 5th and February 12th, and the amended motion carries the clerk's file marks of February 24th and March 1, 1945. On the same day, March 1, 1945, the court, by separate orders, overruled both the original and amended motions for new trial. In the amended motion we find the assignments of error, including those complaining of failure to instruct a verdict and to grant, in the alternative, appellant's motion for judgment notwithstanding the verdict. The assigned errors in the amended motion for new trial are depended upon by appellant as a basis for its points of error. Appellees' objections go to all of the assigned errors in the amended motion, except the two relating to peremptory instruction and judgment non obstante veredicto.

As a prerequisite to appeal in jury cases, such as this, a motion for new trial must be filed, except where only complaint is made that the court erroneously gave an instructed verdict or for rendering or refusing to render judgment non obstante veredicto. Rule 324, Texas Rules of Civil Procedure. The motion for new trial will constitute the assignments of error on appeal. Rule 374, Texas Rules of Civil Procedure.

Wichita County District Courts, with respect to appeals, are among those controlled by Rule 330; subdivision (k) of that rule provides that when motion for new trial is required, it must be filed within ten days after the judgment is rendered and "may be amended by leave of the court at any time before it is acted on within twenty (20) days after it is filed." Subdivision (j) of Rule 330 provides, among other things, that "all motions and amended motions for new trials must be presented within thirty (30) days after the original motion or amended motion is filed and must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by written agreement of the parties in the case, the decision of the motion is postponed to a later date." There is no contention here that there was any written agreement to postpone; that the amended motion was acted on by the court within thirty days after it was filed is not disputed; in fact, it was overruled on March 1, 1945, the very day it was actually tendered and filed, although under order of the court was again filed back as of February 24, 1945. The objection made here by appellees is that the amended motion was filed too late and even though overruled by the court on the same day it was filed, cannot form the basis for assignments of error and points of error thereunder on this appeal.

We have concluded that appellees' objections should be sustained, and that we cannot consider the points of error based on the amended motion for new trial.

By an Act passed by the Forty Sixth Legislature, page 201, of the Regular Session, complete rule-making power in practice and procedure in civil actions in the courts of this state, was vested in the Supreme Court. Pursuant to said Act the Supreme Court formulated and adopted what is known as our "Texas Rules of Civil Procedure." Many of these Rules are re-enactments of previously existing statutory provisions. This is especially true with respect to sections (j) and (k) of Rule 330 mentioned above. Subdivision (j) of Rule 330 is a verbatim copy of section 28, Art. 2092, as it existed before the rules were promulgated. Subdivision (k) copies section 29 of Article 2092 except for the change of the word "rendered" used instead of "entered" as it appeared in the previous statute.

It is the universal rule that when a previous statute is re-enacted the same interpretation will be given to it that was given by the courts of last resort to the statute before its re-enactment.

As applicable to the point before us, our Supreme Court has interpreted sections 28, 29, and 30 to mean that in cases like this, the amended motion for new trial must be filed within 20 days after the filing of an original motion for that purpose— that the provisions of subdivision (k) requiring this is mandatory and that if filed later than 20 days thereafter, is ineffective for any purpose; it is a nullity. Dallas Storage & Warehouse Co. v. Taylor, Dist. Judge, 124 Tex. 315, 77 S.W.2d 1031; Millers Mutual Fire Ins. Co. v. Wilkerson, 124 Tex. 312, 77 S.W.2d 1035; Independent Life Ins. Co. of America v. Work, Dist. Judge, 124 Tex. 281, 77 S.W.2d 1036. Subsequent to the above cited cases this court has adhered to the construction therein contained. City of Wichita Falls v. Brown, Tex.Civ.App., 119 S.W.2d 407, writ dismissed; Tunstill v. Scott, Tex.Civ.App., 182 S.W.2d 734, writ refused, want of merit. Those interested may profit by reading the many cases enumerated in Shepard's Citations, under these authorities, too numerous to cite here.

The order of the trial court authorizing the refiling of the original motion as of February 12, instead of February 5, 1945, and its order of March 1 to file the amended motion first filed on that day, back to February 24, 1945, was ineffective to accomplish the purposes sought, that is to bring the filing of the amended motion within 20 days of the filing of the original motion. It matters not how much the reasons of appellant for not having sooner filed its amended motion appealed to the court, the trial court could not circumvent the mandatory rule by doing indirectly what he could not do directly. It was held in Millers Mutual Fire Ins. Co. v. Wilkerson, 124 Tex. 312, 77 S.W.2d 1035, 1036 that the trial court is without authority to extend the time for filing amended motions for new trial. In Dallas Storage & Warehouse Co. v. Taylor, supra, the Supreme Court, at page 1034 of 77 S.W.2d, said: "A strict construction must be given to that part of subdivision 29 (now subdivision k, of Rule 330) which relates to the time for the filing of an amended motion for new trial. Trial courts could in a large measure defeat the purpose of the amendment of subdivision 28 (now subdivision j, of Rule 330) by permitting amended motions to be filed after the expiration of the time fixed by the statute for their filing. * * * We therefore construe subdivision 29 to mean, since the amendment of 28, that an amended motion for new trial must be filed within 20 days after the original motion is filed, and that no amended motion may be filed after the expiration of that period."

Appellant has filed a very interesting reply brief to appellees' objections above discussed. It bases its...