Yellow Cab Corporation v. Halford

• Decision Date: 11 January 1936
• Docket Number: No. 11763,11763
• Citation: 91 S.W.2d 801
• Parties: YELLOW CAB CORPORATION v. HALFORD et al.
• Court: Texas Court of Appeals

91 S.W.2d 801

YELLOW CAB CORPORATION v. HALFORD et al.

No. 11763

Court of Civil Appeals of Texas. Dallas.

January 11, 1936.

Rehearing Denied February 15, 1936.

Error from District Court, Dallas County; Claude M. McCallum, Judge.

Action by C. M. Halford against the Yellow Cab Corporation, wherein the American Indemnity Company intervened. To review a judgment for plaintiff and intervener, defendant brings error.

Affirmed.

Clark & Rice, of Dallas, for plaintiff in error.

Caldwell, Gillen, Francis & Gallagher, of Dallas, for defendants in error.

BOND, Justice.

This is a common-law negligence suit for damages resulting from alleged personal injuries received by C. M. Halford, plaintiff in the court below, in an automobile collision against the Yellow Cab Corporation, defendant in the court below, in which American Indemnity Company, intervener, sought to share in the recovery. As a result of a trial to a jury, judgment was rendered for Halford in the sum of $14,417 and for the American Indemnity Company in the sum of $2,770.

For brevity, the parties will be hereafter designated as they were designated in the court below.

The findings of the jury convicted the driver of defendant's taxicab on the occasion of the accident guilty of negligence, proximately causing the collision and injury in the following respects: (1) As to speed in excess of 20 miles per hour immediately prior to the collision; (2) as to operating the taxicab at a high, dangerous, and reckless rate of speed in excess of that at which a person of ordinary prudence and judgment would have operated the taxicab under the circumstances at the time and place of the collision; (3) as to the rate of speed in excess of that at which a person of ordinary prudence and judgment would have operated the taxicab under the circumstances at the time and place of the collision; (4) as to the failure to keep a proper lookout; (5) as to the failure to reduce the speed of the taxicab in approaching the ice wagon in which Halford was riding; (6) as to the failure to sound the horn on the taxicab; (7) as to the failure to have the taxicab under control; (8) as to the failure to pass to the left of the ice wagon; and (9) as to the discovered peril in failing to see the perilous position of the ice wagon in time to stop the taxicab.

The jury further found that the collision was not the result of an unavoidable accident; that Halford received injuries to his body on the occasion of the collision; that Halford was not guilty of contributory negligence; that the collision was not the result of the taxicab skidding; and that the plaintiff suffered damages in the sum of $17,187, "as a direct and proximate result of the injuries sustained by him in the collision in question."

In submitting the issue of plaintiff's allowable damages, the court charged the jury, as follows: "In connection with the foregoing issue you are instructed that at the time and on the occasion of said accident, plaintiff was afflicted with a right and left inguinal hernia. You are instructed that you cannot allow him anything by reason of said hernia condition, or other ailment, if any, that existed prior to the collision by reason of any mental or physical suffering, if any, had by him in the past or by reason of any physical or mental suffering you may believe from a preponderance of the evidence to be occasioned him in the future or by reason of any diminished capacity to labor or earn money, if any found, in the past or in the future, or any other injuries resulting from said former condition which you may believe from the evidence has resulted or will result by reason of the former condition and afflictions of plaintiff, if, however, you believe from a preponderance of the evidence that plaintiff's former afflictions were aggravated on said occasion and that said aggravation, if any, thereof resulted from the collision and that the collision was the proximate cause of such aggravation, if any, then you will allow the plaintiff for such of those items of damages enumerated in said issue which you believe from a preponderance of the evidence directly resulted from such aggravation, if any, and for such other injuries, if any, plaintiff sustained at said time and on said occasion."

The plaintiffs' pleadings and evidence, we think, support the findings of the jury; and, in addition thereto, reveal that prior to the accident plaintiff had a right and left inguinal hernia, one described in evidence as being the size of a grapefruit and the other as large as a tennis ball, which were aggravated as a result of the negligence of the defendant's agent, necessitating an operation therefor, and from which phlebitis resulted, causing swelling in the plaintiff's legs and feet; that the plaintiff suffered the loosening of the sacro-iliac joint, resulting in arthritis, evidenced by a lipping of plaintiff's lumbar vertebra, causing a limitation of motion; that the accident caused a visceroptosis, or dropping of the transverse colon or large intestine, producing nausea, constipation, and weakness and neurogenic changes in plaintiff's nerve centers, producing a loss of sexual power; and that plaintiff received numerous bruises and abrasions over his head, neck, back, and hips.

The defendant's pleadings and evidence controvert the submitted issues and, in addition thereto, deny that the existing hernias were aggravated as a result of any negligence on the part of defendant's agent; that an operation was necessary on the hernias due to the accident; that neither the accident nor any injury or injuries received by plaintiff thereat caused the physical and mental pain and suffering; and affirmatively show that all of the ailments and effects, of which the plaintiff complains, is the result alone of chronic diseased condition existing in him prior to the accident.

The defendant presented issues to be submitted to the jury, in effect, inquiring whether the two inguinal hernias were aggravated at the time and on the occasion of the accident; whether plaintiff was afflicted with lipping of the lumbar vertebra prior to the accident; and whether the accident aggravated the vertebra condition. The trial court refused the issues. We are of the opinion there is no error in the ruling of the court. It might be said that the controverted specific facts inquired about may have entered into the ultimate fact in the cause as to whether or not the plaintiff was injured as the result of the collision, but, unless the facts inquired about were the sole cause of plaintiff's complaints, such facts would be evidentiary and the answers to the requested issues would serve no purpose whatever in aid of a judgment.

The plaintiff may have had, and there is substantial evidence in the record from which the jury might have found that the hernias were not aggravated by the collision; that there existed a prior lipping of the vertebra; and that the lipping was not aggravated by the occurrence, yet, clearly, such findings would not determine whether plaintiff was or was not otherwise injured. It is very evident, we think, that the plaintiff's prior ailments and diseased condition of his body, if true, would not bar plaintiff's right to recover for injuries he did actually receive at the time and place in question, due to the negligence of the defendant's agent or servant.

The charges requested do not present issues of fact to make plaintiff's cause of action and the defendant's ground of defense; and had the jury answered the inquiries by saying that the hernias were not aggravated by the collision, that there existed prior lipping of the vertebra and the lipping was not aggravated by the negligence of the defendant's agent, such answers could not have afforded the basis of a judgment in favor of the defendant. A party having prior ailments and infirmities may, to the same extent as one not so afflicted, recover for injuries which the evidence shows he actually received as a direct and proximate result of the negligence of another. Evidence was introduced to show injury to the plaintiff's back, hips, neck, and nerves; a traumatic condition of his skin, flesh, and muscles; and the undisputed physical facts of the collision show the plaintiff was knocked from his ice wagon to the paved street, landing on his back, and sustained bodily injuries, evidenced by his suffering and physical condition immediately after the collision. So, we think it cannot be said that the special charges requested express issues which would aid a court in determining the ultimate fact of plaintiff's injury proximately resulting from defendant's negligence.

The charge of the court makes inquiry of the jury as to whether the plaintiff was injured "at the time and place of the collision" and "as the direct and proximate result of the negligence of the defendant's agent," and, in addition thereto, the trial court circumscribed the province of the jury in the special instruction, not to allow the plaintiff anything for prior conditions and resulting ailments, thus fully protected the defendant in the matters complained of. The trial court was not called upon to present an inquiry as to whether the prior condition and resultant ailments were the sole cause of plaintiff's complaints. The question of sole cause is a separate and distinct issue, independent of cause or proximate cause and, in the absence of a proper requested charge, the trial court, in not submitting the issue, is not error. Commercial Standard Ins. Co. v. Noack (Tex.Com.App.) 62 S.W.(2d) 72; Texas City Transp. Co. v. Winters (Tex. Com.App.) 222 S.W. 541; Galveston, H. & S. A. Ry. Co. v. Williams (Tex.Civ.App.) 217 S.W. 420; Texas & Pacific Ry. Co. v. Dickey (Tex.Civ.App.) 70 S.W.(2d) 614; Shuffield v. Taylor (Tex.Com.App.) 83 S. W.(2d) 955.

The defendant further complains of the action of the trial court in refusing to submit a charge making inquiry whether or not at the time of the collision...