Yeary v. Hinojosa, 13140

• Decision Date: 31 October 1957
• Docket Number: No. 13140,13140
• Citation: 307 S.W.2d 325
• Parties: George Dewey YEARY, Appellant, v. Florencio HINOJOSA, Appellee.
• Court: Texas Court of Appeals

Page 325

307 S.W.2d 325

George Dewey YEARY, Appellant, v. Florencio HINOJOSA, Appellee.

No. 13140.

Court of Civil Appeals of Texas, Houston.

Oct. 31, 1957.

Rehearing Denied Dec. 5, 1957.

F. Warren Hicks, Houston, for appellant.

Vinson, Elkins, Weems & Searls, Sam W. Davis, Jr., and Thomas B. Weatherly, Houston, for appellee.

WERLEIN, Justice.

This suit was brought by the Fidelity & Casualty Company of New York, sometimes referred to herein as Insurance Carrier, against George Dewey Yeary, seeking to recover compensation benefits alleged to have been paid to Florencio Hinojosa, an employee of H. H. Null, Inc., who sustained personal injuries on or about December 20, 1952 while in the course of his employment for said employer. Plaintiff's original petition filed June 19, 1954, alleges that said Hinojosa was struck by an automobile negligently driven by the defendant, George Dewey Yeary, and that as a direct and proximate result thereof he sustained serious and permanent injuries. Then follow allegations of negligence on the part of defendant Yeary proximately causing Hinojosa's injuries. Paragraph V of said petition alleges that Hinojosa's said employer at the time of his injury was a subscriber under the Workmen's Compensation Act of the State of Texas, Vernon's Ann.Civ.St. art. 8306 et seq., and the Fidelity & Casualty Company of New York was the insurance carrier under said Act for said employer, and that by virtue of its liability as such insurance carrier the plaintiff paid to Hinojosa the sum of $4,000 as compensation and also expended the additional sum of $2,807.60 for medical expenses and the sum of $520.85 as additional reasonable and necessary expenses incurred in connection with the investigation of the case, making a total of $7,328.45, and that the plaintiff was entitled to be subrogated to the claim of Hinojosa against said defendant, Yeary, and has been so subrogated to the extent of $7,328.45 of such claim against the defendant, and that plaintiff was seeking recovery against the defendant in such sum together with reasonable attorney's fees in the sum of $2,500. In the prayer, plaintiff prayed that upon final trial of the case it have and recover of and from the defendant the sum of $9,828.45, costs and general relief.

On June 3, 1955, there was filed a first amended original petition by the lawyers representing the insurance carrier, in which it is alleged that Florencio Hinojosa (referred to as plaintiff) files his first amended original petition in lieu of the original petition filed in such cause on June 19, 1954. Substantially the same allegations are set out in the amended petition as in the original petition. Paragraph V of the amended petition is similar to paragraph V of the original petition, and the subrogation rights of the said Fidelity & Casualty Company of New York are set out therein as in the original petition. In the prayer, the plaintiff (Hinojosa) prays that he have and recover from the defendant the sum of $9,828.45, and costs and general relief. It will be noted that the amount prayed for in the amended petition is exactly the same as the amount claimed by the insurance carrier to be due it under its subrogation rights. In such amended petition Hinojosa alleges 'that your plaintiff is seeking recovery also on behalf of said The Fidelity and Casualty Company of New York against said defendant in the sum of $7,328.45 together with a reasonable attorney's fee which plaintiff says should be and is $2,500.00.'

On April 3, 1956, a motion was filed by Landis, Gregory & Blain, as attorneys for Hinojosa, praying the court to permit an amendment to said first amended original petition eliminating paragraph V thereof in its entirety, and substituting therefor the allegations contained in their suggested new paragraph V as to the earning capacity of Hinojosa, and increasing the amount of damages sued for from $9,828.45 to $27,807.60. On May 7, 1956, the court granted plaintiff leave to amend as prayed for. It seems that on April 3, 1956, said Landis, Gregory & Blain filed a motion praying that their names be added as attorneys of record for the plaintiff. This motion was granted and said attorneys became additional attorneys of record for the plaintiff on April 12, 1956.

Thereafter, on June 26, 1956, the defendant filed his first amended original answer in which he specially excepted to the order of the court permitting the filing of said amendment eliminating paragraph V of plaintiff's first amended original petition and substituting therefor the new paragraph V of the so-called plea in intervention, contending that whatever cause of action the original plaintiff, the Fidelity & Casualty Company of New York, may have had by virtue of its having paid workmen's compensation insurance to Hinojosa, the same was abandoned by the elimination of paragraph V of the amended petition and the substitution therefor of the new paragraph V, so that any cause of action that the insurance carrier may have ever had was barred by the two-year thatute of limitations, Vernon's Ann.Civ.St. art. 5526. The defendant also excepted to the cause of action that was being asserted by Hinojosa on the ground that it was barred by the two-year statute of limitations, since the accident made the basis of the suit occurred December 20, 1952, and the so-called plea in intervention was not filed until April 9, 1956.

The judge who heard the exceptions overruled defendant's exception as to the insurance company, but sustained the exception as to the cause of action of Hinojosa on the ground that the same was barred by the two-year statute of limitations.

Plaintiff's motion in limine moving the court to instruct defendant's counsel not to mention nor indicate in any way before the jury that the damages sued for would belong to Fidelity & Casualty Company of New York and that this suit was a subrogation or recoupment suit, was overruled and denied by the court below, and the case proceeded to trial. On the jury's verdict, the court rendered judgment that the plaintiff, Florencio Hinojosa, individually and as trustee, have and recover of and from the defendant, George Dewey Yeary, the sum of $7,445 and court costs.

The defendant, whose motions for peremptory instruction made at the conclusion of plaintiff's evidence, and also at the conclusion of the evidence in the case, and whose motion for judgment non obstante veredicto, and amended motion for new trial, were all overruled by the court, duly perfected his appeal and the case is now before this Court for review.

Appellant has assigned 18 points of error, a number of them being repetitious or duplicative. These points are not separately briefed nor are they grouped in any manner. The substance of appellant's contention is that the suit originally filed was a subrogation suit to recover compensation insurance paid to Hinojosa, together with medical expenses and investigation expenses in connection with the claim growing out of personal injuries sustained by said employee of H. H. Null, Inc., while in the performance of his duties for said employer. Appellant contends that appellee failed to prove facts essential to any recovery in that there was no evidence that Hinojosa's employer was a subscriber under the Workmen's Compensation Act of Texas or that the Fidelity & Casualty Company of New York was the insurance carrier of said employer under such Act, nor was there any evidence that said insurance company paid said employee any compensation or expended any definite amounts as medical and investigation expenses, or that it was entitled to be subrogated to any part of Hinojosa's claim.

The appellant further contends that the trial court erred in overruling defendant's motion for judgment non obstante veredicto because the plaintiff must recover, if at all, in the right in which it sues, and that the insurance company failed to produce any evidence entitling it to judgment, especially because any suit Hinojosa may have had was barred by the two-year statute of limitations at the time the first amended original petition was filed, in which petition the name of the plaintiff was changed from the insurance company to Hinojosa, who then sued for himself and also on behalf of the insurance company, alleging the company's subrogation rights; that the court erred in overruling defendant's motion for peremptory instruction for the same reasons, and erred in entering judgment in favor of Hinojosa, individually and as trustee, because the plaintiff did not sue as trustee, and any individual action he may have had was barred by limitation. Appellant contends that the judgment should be reversed and rendered because the insurance company failed to show it was entitled to receive anything, and there was no other person or company on whose behalf Hinojosa would be entitled to recover as trustee, so that there was no basis for a recovery by Hinojosa, individually and as trustee, against the defendant. Defendant further contends that it was not shown what amount was awarded to Hinojosa individually and what amount was awarded to him as trustee, and that there is nothing to show for whom Hinojosa was trustee. It was further contended that the judgment did not dispose of the Fidelity & Casualty Company of New York.

We shall not attempt to discuss separately the 18 points upon which the appeal is predicated in view of the fact that they have not been briefed separately or grouped, but we shall discuss the matters raised by such points and also the counter-points in the brief of appellee.

The first and most important question arising is whether the cause of action of Hinojosa was barred by the two-year statute of limitations, as found by the district judge in passing on the exceptions to the petition some time prior to the case going to trial on its merits.

The exception of the defendant in his first amended original answer claiming that the cause of action of...