text:
    INDUSTRIAL INDEMNITY EXCHANGE, v. RATCLIFF et al.
    No. 3606.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 27, 1940.
    Rehearing Denied March 13, 1940.

      B. L. Collins, of Lufkin, and Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for appellant.
    C. S. Williams and Collins, Pate, Hatchell & Garrison, all of Lufkin, for appellees.
   O’QUINN, Justice.

This is a workmen’s compensation case. Angelina County Lumber Company was the employer, H. A. Ratcliff the employee, and Industrial Indemnity Exchange the compensation insurance carrier. On April 6, 1938, while engaged in. the course of his employment as an employee of Angelina County Lumber Company, appellee received an injury for which he claimed compensation. He duly filed his claim before the Industrial Accident Board. On November 17, 1938, the Board made its final ruling and award, and appellee duly gave notice that he would not abide said award, and duly filed this suit in the district court of Angelina County, Texas, to set aside said award and to recover compensation as for total and permanent disability.

Appellant, Industrial Indemnity Exchange, answered by general demurrer, special exceptions, general denial, and specially denied (a) that notice of injury was given to appellant and the Industrial Accident Board within the time and in the manner required by law; and (b) that any valid claim for compensation was filed with the Board for an amount to confer jurisdiction upon the district court; and (c) that any valid award was made by the Industrial Accident Board from which an appeal could be taken. Further specially answering, appellant alleged that it had made certain payments to appellee of compensation, but that said payments were made under a misapprehension of his wage rate, which misapprehension arose out of untrue statements made to it by appellee concerning his injury and the wages he had earned, and hence it was not bound in any way by the making of such payments.

At .the close of the evidence, appellant moved for an instructed verdict which was refused. The case was then tried to a jury upon special issues which were answered favorable to appellee, and judgment rendered for appellee for compensation for 401 weeks for total and permanent disability at the rate of $9.97 per week, with credit for 15 payments at such rate made theretofore by appellant. Motion for a new trial was overruled and we have the case for review.

Appellant’s first six propositions are presented grouped. None of these propositions refer to any assignment of error to which they relate, or upon which they are based. We have made careful investigation of the 68 assignments in the back' of the brief, and fail to find any of them substantially the same as either of the propositions grouped, but rather a combination of the matters stated in the assignments. We doubt the sufficiency of such propositions, but have given them consideration. The first asserts that the submission of special issue 4 was error because it was misleading, and confusing in that it was contradictory to the definition of the term “injury” given by the court, was too general in that it permitted consideration by the jury of any affected portion of ap-pellee’s body when under the pleadings the original damage was to appellee’s foot, and the issue, as framed, permitted the jury to' speculate whether such affected parts of appellee’s body, other than his leg, was affected by reason of the injuries to his foot or leg, without regard as to whether or not there was any infection or disease naturally resulting from the original damage to appellee’s foot “That extended beyond plaintiff’s leg below the knee”. Issue No. 4, read: “Do you find from a preponderance of the evidence that such injury, if any, to plaintiff’s left leg has affected and involved parts of his body other than his leg”?

The jury answered “Yes”. The issue was not subject to the objections levelled against it. It plainly inquired whether the injury to plaintiff’s leg had affected other parts of his body. Under the pleadings and the evidence the issue was raised, and the issue was neither misleading, confusing nor too general.

The second proposition urges error in the submission of special issue 5. It was: “Do you find from a preponderance of the evidence that H. A. Ratcliff sustained an injury to his back as a direct and natural result of being struck by such conveyor chain?”

The jury answered “Yes.”- Appellant objected to this issue that it was too general, was not limited to the pleadings or evidence as. to what portion of appellee’s back sustained injury, and permitted the jury to speculate “all up and down the plaintiff’s back without regard to the testimony, and because such issue permits the jury to make a finding irrespective of the pleadings or evidence and irrespective of defendant’s liability under the Workmen’s Compensation Act with reference to what constitutes a compensable injury under the term ‘injury’ as given by the court, and without regard to whether or not such injury to the back was in anywise connected with a general injury, or a specific injury”. This assignment is without merit. Appel-lee plead and the undisputed evidence showed that appellee was injured by being struck by conveyor chain while at work at a saw mill, and that he suffered a broken or fractured left leg about four inches above the ankle; that the blow of the chain knocked him down and in falling he struck his back against some timbers ■ causing severe injuries to his back. We think the allegation was sufficiently specific and would admit proof of injury to any portion of the back thus injured. It did not permit the jury to either speculate, or to find an injury to the back “irrespective of the pleadings or evidence”. Nor was the issue subject to the objections that the jury could find a compensable injury whether or not the injury to the back was in anywise connected with a general injury, or to a specific injury. It being alleged with the injury to appellee’s leg that the whole of the injuries suffered resulted in total incapacity, the issue very properly inquired as to the injury to the back.

The third proposition asserts error in submitting special issue 6. It was : “Do you find from a preponderance of the evidence that plaintiff H. A. Ratcliff, sustained total incapacity as a natural result of injury sustained by him, if any, from being struck by such conveyor chain”?

The jury answered “Yes”. Appellant objected to this issue that it was multifarious, misleading, confusing to the minds of the jurors because it permitted a finding ■of total disability due to any injury that appellee may have suffered without regard to the definition of “injury” given by the court; that the issue was too broad and not limited to the pleading for in that appellee had suffered an original injury to the foot, and so the issue permitted the jury to find that he had suffered total incapacity by reason of a specific injury to his foot. This contention is without merit. The pleadings of appellee were full and specific as to his injuries received from being struck by the conveyor chain, and of the results of these injuries, and that from these injuries he had suffered total •incapacity. The issue was not subject to ■.the exceptions.

What we have said disposes of the fourth, fifth and sixth propositions. The •answers to each of the issues complained, were amply sustained by the evidence.

Appellant’s seventh proposition further objecting to special issue 4, reading: “Do you find from a preponderance of the evidence that such injury, if any, to plaintiff’s left leg has affected and involved parts of his body other than his leg”, that such issue was upon the weight of the testimony in that it assumed the plaintiff had suffered an injury to his leg, when the facts showed that the injury “was only to that portion of plaintiff’s left leg below the knee, and therefore involved a foot injury and not a leg injury”.

■The issue was not upon the weight of the evidence, nor did it assume that appel-lee had sustained an injury to his leg. The undisputed evidence-—admitted by appellant—showed that appellee suffered a broken—or multiple fracture—of his left leg about four inches above the ankle. Besides the query was prefaced by the words “if any”, the usual and proper way in which to word questions like the one submitted. Moreover, in answer to special issue 2 the jury had answered that appellee had sustained an injury to his “left leg below the knee” by reason of being struck by the conveyor chain, and that he was so struck is not disputed. The assignment is without force.

Appellant submits propositions 8 to 31, inclusive, (24 of them) grouped. These propositions relate to various matters, such as insufficiency of the evidence to raise the issues, insufficiency of the evidence to support the jury’s findings, the erroneous submission of certain issues, the erroneous rendition of judgment for total and permanent disability because the injury was specific and confined to the foot, and other matters variously presented. We find no basis in the rules for such grouping. However, we have considered the propositions. We overrule all the propositions complaining of lack of evidence either to warrant the submission of the issues complained, or to support the findings of the jury. The pleadings of appellee were clear and ample to raise each and every issue submitted, and the evidence not only raised the issues but supported the jury’s findings. The 28th proposition complained that the court erred in submitting special issue No. 34 which inquired whether or not appel-lee’s incapacity, if any, which he had sustained was not and would not be confined solely to his left leg. Under this proposition it is insisted that the evidence showed that the injury was confined to his leg below the knee wherefore the incapacity was, as a matter of law, limited to the incapacity from a specific injury. The 30th proposition is that the submission of special issue 35, which inquired whether appellee’s incapacity, if any, which he sustained was not and would not be confined solely to his left leg below the knee, was error because such issue was not supported either by the pleadings or the evidence, and under the Workmen’s Compensation. Act, Vernon’s Ann.Civ.St. art. 8306 et seq., the incapacity was limited to the foot, as a matter of law, the injury being so limited. The pleadings and the evidence raised these issues, and the findings o.f the jury have ample support in the evidence. ■ The jury answered each of these in favor of appel-lee, that is, that the incapacity of appellee was not and would not be confined solely to his left leg, and that such incapacity was not and would not be confined solely to his left leg below the knee. The'insistence that appellee’s injury was confined to his left leg below the knee, and was therefore a specific injury, and so, as a matter of law, the incapacity growing out of the injury must be confined to such specific injury, is without force. The pleadings of appellee alleged injuries not only to his leg, but to his back, hip and s'ide, and that such injuries had so affected him generally as to result in his total incapacity to labor, and the jury found in his favor, and the evidence supports such finding.

We overrule appellant’s contention that Dr. Denman, witness for appellee, could not testify that in his opinion appel-lee would not be able to secure and retain employment in the future because of the incapacity occasioned by the injuries he received. The proposition rather overreaches the real point in controversy. Appellant insists that Dr. Denman could not testify to the effect that in his opinion ap-pellee would not be able to secure and retain employment in the future because of the injury to his foot. As we read the record this occurred: “Q. Doctor, from your' knowledge of this man’s condition developed during the period of his treatment under you, and from the history he gave you, what is your opinion with reference to whether he is totally disabled or otherwise” ?

Upon objection, the question was re-framed to read: “Q. Dr. Denman, from your knowledge of this- man’s condition, from his history that he gave you, and which you have stated here, what is your opinion with reference to whether or not this man is able to do manual labor” ?

Objection to this was overruled. The doctor answered “No, he is not.”

“Q. On what do you base that opinion? A. I base that opinion on my objective findings, as stated — I mean objective signs • — I know by having seen and felt and know that is true — ankylosis and destruction of the arch. I know there is destruction of the arch that affects the muscles as described up- to and including the hip, from non-use. I think that answers the question.
“Q. Dr. Dennjan, would that condition which you have described affect his body as high as the back? A. I think when a man has that much trouble his whole leg and back is affected.
“Q. I believe that you stated that your opinion is that that will result from having: to lean to one side, to cause a permanent destruction of the muscles of his back? A. I do not know of any mill work that does not require some bending, exertion or standing, that he could do — or anything else that is manual labor.
“Q. Could this man stoop or bend without suffering pain or discomfort? A. No,, sir.
“Q. Dr. Denman, what is you opinion,, taking into consideration your knowledge of this man’s condition over the period you treated him, and the history he gave you, what is your opinion with reference to possible duration of this disability in the future? A. He has got total and permanent disability”.

On cross-examination, he testified among other things:

“Q. In other words, from objective symptoms, you found the condition there upon the back, leg and foot ? A. Yes, sir.
* * * * *
“Q. Did I understand you awhile ago to testify on direct examination, his condition, I believe you said, was one hundredl per cent total? A. Sure; I still say it-
* * * ‘ i* *
“Q. You spoke awhile ago of his being totally disabled; by that you mean that he is unable to do anything, don’t you? A. Well, he can walk around, and things like that; I don’t mean that he can’t walk, or can’t sit down, or can’t shell peanuts, but still he can’t do manual labor.
“Q. In other words, you don’t class shelling peanuts as manual labor ? A. No, sir; I don’t believe I do.
“Q. Could he handle a broom, sweeping? A. I imagine he could sweep awhile with a broom.
“Q. Could he do a little work on a farm? A. He might do a little if there wasn’t much walking to do.
“Q. Could he go out and handle heavy moving timber? A. No,' sir; he could never do that.
“Q. He wouldn’t be able to plow much ? A. No, sir.
j¡; ⅝ ⅜ ⅝ *
“Q. The thing is, he can do some work at which he doesn’t have to stand on his-feet, he can work? A. ' I believe he could! work if he didn’t have to do much walking,, standing or lifting.
“Q. Yet you say he is totally disabled? A. Not for many things; I don’t think anybody would ever be totally disabled unless they are dead, in the way you- are explaining it.
“Q. When you say he is permanently disabled, you mean all of his life? A. I mean that he is permanently disabled, in my opinion, all his life, where it requires him to use that leg to any appreciable extent.”

He further testified that he found certain of the muscles of the body atrophied, and the nerves affected — and that the conditions were — “A. Yes, sir; I said that. I examined him several times since, as I told you awhile ago and it progressively grew worse”.

It is seen that the doctor was not basing his opinion on the injury to his foot only. He had testified to what he found when appellee came to him for treatment, his examination, and the complaints made to him by appellee, and the' history of the occurrence as given him by appellee. His observations of appellee’s condition on the many times he saw and.treated him. His opinion was based upon the full knowledge possessed by the doctor growing out of careful examinations, treatment and familiarity with every phase of appellee’s case.

The 33rd, 34th, 35th, and 36th propositions are presented grouped. The 33rd and 34th urge error in the court’s refusing to give its requested special issue No. 3 as to whether the injury of appellee, if any, was not limited to the left foot; the 35th that the court erred in refusing its special issue No. 2, as to whether the injury, if any, sustained by appellee was not limited to the left leg below the knee; and the 36th that the court erred in refusing its special issue No. 1 inquiring as to whether the injury suffered by appellee was not limited to the left leg. The court submitted special issue No. 34, which was: “Do you find from a preponderance of the evidence that the incapacity, if any, which plaintiff has sustained or will sustain as a result of the injury, if any, sustained by him on April 6, 1938, is not and will not be confined solely to his left leg”?

And special issue No. 35, as follows: “Do you find from a preponderance of the evidence that the' incapacity, if any, sustained by him on April 6, 1938, is not and will not be confined solely to his left leg below the knee”.

These issues were givep without objection of appellant. We think they substantially covered the matters complained. The gist of appellant’s complaint is that appellee suffered only an injury to his left leg and foot, and so the incapacity was from a specific injury, and that the question of a general injury was improperly considered and submitted. This contention is far from correct. Appellee plead injuries to his foot, leg, back, hip and side occasioned by being struck by a conveyor chain. He so complained to the doctor, and testified fully covering each and all of these alleged injuries, and that at the time of the trial he still constantly suffered much pain, was disabled to work, could not sleep and that his situation was gradually becoming worse. This was corroborated by Doctor Denman who had treated him all the time. Appellant seems to ignore all evidence of general disability because the original injury, it insists, was to the foot or leg below the knee, and so was a specific injury only, and that the court erred in submitting issues as to total incapacity raised by appellee’s pleading and the evidence, and asserts that such issues were raised neither by the pleading nor evidence and that the findings of the jury were not supported by the evidence. None of these contentions have merit, and we overrule all of them.

The 37th and 38th propositions complain that special issues Nos. 10, 11, 12, 12-A and 13, relating to partial incapacity, were submitted conditionally — to be answered only in the event that they had answered special issues 6 or 8 “No”, which was reversible error. Special issue 6 inquired whether appellee had suffered total incapacity, and was answered “Yes” by the jury; and special issue No. 8 inquired whether total incapacity, if any, was permanent, to which the jury answered “Yes”. This was followed by special issue No. 8-A: “Do you find from a preponderance of the evidence that such total incapacity, if any, was not only temporary”, this was answered “Yes”; and special issue No. 8-B: “Do you find from a preponderance of the evidence that H. A. Ratcliff, plaintiff, has not sustained and will not sustain only partial incapacity as a result of the injury, if any, suffered by him on April 6, 1938”, this was answered “Yes”. These issues were submitted without condition, and were answered independently of any answer made to any other issue. So it is seen that the gravamen of the asserted offending issues disappears, for the issues 8-A and 8-B covered the matters complained. Further, special issue No. 12-A, which reads: “Do you find from a preponderance of the evidence that such partial incapacity, if any, is not and will not be only temporary”, though not answered, was submitted unconditionally, and no objection was made to the reception of the verdict because not answered. The assignments are overruled.

What we have said disposes of the 39th proposition.

We think that the submission of special issues Nos. 34 and 35, which were not in any manner objected to, either as to form or substance, and the jury’s answers thereto avoid any asserted errors urged by appellant in its propositions 40, 41, 42, and 43. They are overruled.

The 44th and 45th propositions urge reversible error in the court’s failure to submit the question of appellee’s wage rate to the jury, and that the court was without authority to make an independent finding of $9.97 as the average weekly wage rate. The assignments are overruled. It is without dispute, in fact appellant plead that it had paid appellee fifteen weeks’ compensation at the rate of $9.97 per week. So it appears that appellant had recognized appellee’s right to recover at that rate, and had actually paid him for fifteen weeks’ compensation at that rate. Undisputed facts do not have to be submitted to the jury for a finding. The fact that appellee’s wage was undisputed authorized the court to find in accordance with such undisputed fact. Commercial Standard Ins. Co. v. De Hart, Tex.Civ.App., 47 S.W.2d 898; Texas Employers Ins. Ass’n v. Hamor, Tex.Civ.App., 97 S.W.2d 1041; Traders & General Ins. Co. v. Slusser, Tex.Civ.App., 110 S.W.2d 598; Southern Surety Co. v. Eppler, Tex.Civ.App., 26 S.W.2d 697, writ refused.

The 46th proposition asserts error in the court’s refusing to admit in evidence testimony that appellee after his injury, and pending his efforts to secure compensation, made application to the Texas Unemployment Commission for aid for in that said application contained statements contradictory of his testimony as to his incapacity to work given on the trial of the case, and was proper as impeachment evidence. The objection to the admission of the application was that the instrument offered purported to be a copy of the original, did not bear any one’s signature, had no certificate on it that it was a correct copy of the original, which it appeared was on file in Austin, and that the original was the best evidence. Its rejection was not error. There was no explanation of why a correct certified copy was not obtained, nor who prepared the offered copy, nor any proof certainly identifying the contents of the supposed copy with the original. It is not contended that any effort was made to have the original, nor of a certified copy of same, which might have been had.

No reversible error being shown, the judgment should be affirmed, and it is so ordered.

Affirmed.


source: Caselaw Access Project

author: SPEER, Justice.

license: Public Domain

text:
    HYDE v. MARKS.
    No. 14036.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 23, 1940.
    Rehearing Denied April 5, 1940.

      Todd, Crowley & Thompson, of Fort Worth, and Touchstone, Wight, Gormley, Strasburger & Price, of Dallas, for appellant.
    Penn'Jackson, of Cleburne, and Martin, Moore & Brewster, of Fort Worth, for appellee.
   SPEER, Justice.

This is a suit for damages, growing out of a collision between a large passenger bus 'and a Pontiac automobile, alleged to have occurred on Hemphill Street, in the City of Fort Worth, early in the evening of January 1st, 1938.

Plaintiff Milton Marks instituted the suit against defendant G. W. Hyde, as owner of the bus. The parties will carry the same designation here as in the trial court.

Among ■ other things, the pleadings of plaintiff disclose that on the date mentioned, he was driving south on Hemphill Street, en route to Venus, in Johnson County; that Hemphill Street is the main thoroughfare leading from Fort Worth to Venus; that because of the negligence of the driver of defendant’s bus, the two vehicles collided, proximately resulting in serious bodily injuries to him, for which he sought damages.

Defendant answered by general demurrer, general denial and specially by allegations of negligence on the plaintiff’s part, charged to have been the proximate cause of the collision and the resultant injuries.

It is unnecessary for us to relate the various acts of negligence charged by the respective parties against the other. There is no complaint by either party that the pleadings were not sufficient to support evidence raising the issues that were submitted. Many witnesses testified concerning the movements of the vehicles involved, and their testimony is highly conflicting, thus raising issuable facts for jury consideration.

In his charge to the jury, the court defined “negligence”, “proximate cause”, “new and independent cause”, “proper lookout” and “unavoidable accident”. No complaint is made of either, except as to the latter. Error is assigned to that explanation, and it will be discussed by us later in this opinion.

The verdict was 'favorable to plaintiff in every particular.

The bus driver was found to be guilty of negligence in many respects, each being found to be a proximate cause of plaintiff’s injuries. Plaintiff was acquitted of negligence on each issue submitted. The jury found that plaintiff’s damages for mental pain and suffering since the accident and in the future, as well as diminished earning capacity, was $3,000. In answer to other issues, the jury awarded damages to plaintiff as follows: $520 for the Pontiac car; $250 for medical treatment; $219 for hospitalization; and $105 for nurse hire.

Because of the numerous grounds of negligence charged by both parties and the great volume of testimony offered, the court submitted 77 special issues. The amounts awarded by the jury aggregate $4,094, for which sum the judgment was entered. Defendant moved for a new trial and assigned in his motion 237 alleged reasons why it should be granted. The motion was overruled, and defendant has appealed.

Twenty-eight assignments of error are brought forward by defendant in his brief and these are concisely presented under four propositions or points relied upon for a reversal of the judgment entered.

The first proposition is based upon assignments of error one to five, both inclusive. These assignments are leveled at that part of the court’s charge given in connection with the inquiry as to the amount plaintiff should recover for mental pain and suffering since the accident, as well also any amount that the jury should find that he probably would suffer in the future. The particular part of the charge complained of in this connection reads as follows: “If you find and believe from a preponderance of the evidence that plaintiff’s earning capacity has been diminished, or will be diminished in the future, by reason of his injuries, if any, you may take such facts, any, into consideration." It is contended by defendant that there was no testimony offered which tended to show that plaintiff’s earning capacity had been diminished. It is asserted that the only evidence offered with reference to his ability to earn money consisted of his own statements, to the effect that he had been earning on an average of $200 to $250 a month for the two years immediately preceding the date of his injuries; that his work consisted of selling oil products on commission but that out of his gross earnings he had to furnish his own capital and equipment, hire and pay for a helper and pay all losses sustained by reason of bad accounts. It is insisted by defendant that since there was no testimony offered to show what these deductions were, there was no basis shown from which it could be determined what plaintiff’s earnings were and consequently the jury could not find to what extent they had been diminished.

We do not construe the testimony of plaintiff in regard to his earnings prior to his injuries as does the defendant in his briefs. The plaintiff was questioned by his counsel as to the nature of the business in which he had been engaged for about two years prior to the accident. He said he had been selling oil products in the An-son, Texas, territory, on commission. He described the nature of the work and was asked: Question: “How much money were you making a month on an average prior to the time of this collision?” An objection to the .inquiry was made because it embraced his owii earnings, as well as returns upon his capital invested, which plaintiff had said was about $1,500. His counsel changed the question to this form: Question: “Are you familiar with the value of services of the kind that you were rendering at that time, in Anson and in that territory?” Answer: “Yes, sir.” Question: “Did you know any other men that were engaged in the same kind of work, in that locality out there, for oil companies?” Answer: “Yes, sir.” Question : “And were you well acquainted with the value of that kind of services?” Answer: “Yes, sir.” * * * Question: “Well, I am talking about a man hired out to other people, doing the same kind of work that you were doing, soliciting and delivering. What were the services of that nature worth out there at the time you got hurt ?” Answer: “Around two to two hundred and fifty dollars (a month).”

On cross-examination, plaintiff testified that he could not name any person in that territory who had been employed upon a salary to do the particular kind of work that had been done by him. In response to further questions, he said that $200 to $250 a month was an average, like he had told his counsel; that that amount was what he averaged. Defendant then moved to strike plaintiff’s former testimony because it was not the proper test; the motion was overruled and exception taken. Plaintiff further testified on cross-examination that he had to deduct from his gross income his expenses for help when hired, expense of operating his truck, its wear and tear, telephone calls and bad debts incurred.

He also said that he had hired a helper and paid him $12 a week, but did not state when, with reference to the injury, such a helper had been employed. His wife testified that he was in good health prior to the injury and had done all of his work. This testimony was susceptible to more than one construction, and the jury would have been justified in finding that if any helper was hired, it was after plaintiff was injured.

We have searched the record and do not find that plaintiff ever testified on direct examination what amount he had earned before he received the injuries, but, as shown, he qualified as an expert on the reasonable amount of wages necessary to employ a person to do the work performed oy him in that locality. True, the cross-examiner implied that he had testified as to his own earnings, and the witness then testified to items of expense necessarily deductible. We do not construe this testimony as being in conflict with his positive testimony as to reasonable wages for one performing that work. But, to give it the interpretation applied by defendant, it produced only a conflict in his statements. This would not destroy the effect of his testimony at all; it only affected the weight to be given it by the jury; it was nonetheless a jury question. This point has been many times adjudicated against the contention of defendants. In support of this holding, we cite New St. Anthony Hotel Co. v. Pryor, Tex.Civ.App., 132 S.W.2d 620, writ refused, in which case a dozen or more prior cases are reviewed, to which we also refer.

The extent of plaintiff’s injuries are shown to be serious. He was unconscious for about five days, remained in the hospital five weeks, and had been unable to do gainful work since he was injured. He had ten or more fractured ribs, a brain concussion, severe cuts on the head and face, fractured nose, a collapsed lung, injured bladder wall, causing blood to be emitted through the urine, fractured thigh and a general nervous condition. The physician said the plaintiff was still suffering from these conditions at the time of the trial, and that he.was unable to say how long they would continue to affect him. Considering all these matters, we hold that it was proper for the court to instruct the jury to take into consideration the diminished earning capacity of plaintiff, if they found that it had been diminished. The assignments upon which the proposition is based must be overruled.

Defendant’s second proposition is based upon assignments from six to twenty-six, both inclusive. These assignments and the proposition present the rulings of the trial court in permitting plaintiff’s counsel to interrogate defendant’s witnesses, as concerning, and in permitting them to testify that they had received money from the defendant prior to the time they offered to testify in the case; it being made to appear that three of defendant’s witnesses were passengers on the bus that was involved in the collision, received injuries at the time and that the defendant had paid them various sums in consideration that they would not sue for the injuries sustained.

It is claimed by defendant that testimony of such witnesses that they had been paid small sums by him, for the consideration not to file suit for such claims, amounted to compromises and were not admissible against defendant.

We are not unmindful of the general rule so well established that compromises and offers of compromises are not admissible in evidence, yet we think the rule not applicable here. There is another rule of procedure equally as well settled as the one mentioned; it being that a party on cross-examination may develop any fact or circumstance which tends to show interest, prejudice or bias of a witness. Defendant introduced three witnesses who were passengers on the bus at the time of the collision; their testimony was such as to exonerate the bus driver of negligence, and to place the whole blame on plaintiff for the accident. In many respects their testimony was more favorable to the proper conduct of the driver than was his own. On cross-examination, plaintiff developed from the testimony of each of the witnesses that they had been paid for their respective claims against defendant. In offering the testimony, plaintiff’s counsel stated to the court that he was offering the testimony to show the interest of the witness in the controversy between the parties.

Such testimony as that complained of is admissible as affecting the credibility of the witness before the jury. There is good reason for such a rule. The jury is entitled to know any fact which would tend to influence the testimony given by a witness; his interest in the outcome of the suit is a potent factor. The interest of a witness may be determined by a cross-examination on any point that is calculated to disclose a motive for the testimony offered. The rule is based upon the theory that the jury should know such facts, the better to enable them to weigh the words of the witness. Trinity County Lumber Co. v. Denham, 88 Tex. 203, 30 S.W. 856.

If the defendant had requested it, the court could have properly limited the testimony complained of to such effect, if any, it may have had upon the credibility of the witnesses and the weight to be given by the jury to their testimony; but no such request was made. Absent such a request, the testimony was admissible as affecting its weight, the purpose for which it was shown to have been offered by plaintiff. Missouri K. & T. R. Co. v. Kellerman, 39 Tex.Civ.App. 274, 87 S.W. 401, writ refused. The testimony complained of would not have been admissible as tending to establish a confession of negligence by defendant; for the reason, the degree of care which defendant owed to the passengers on the bus was materially different to his obligations to plaintiff. But the purpose for which it was offered rendered the testimony admissible, and no error is shown by the ruling of the court.

Assignment of error 27 and "the proposition thereunder complain of the definition given by the court of “unavoidable accident”. In the court’s charge, he said: “Unavoidable accident means an event which occurs suddenly and unexpectedly without negligence of the plaintiff or defendant.” The objection made to the definition was that as worded it omitted the elements of proximate cause and foreseeability.

We entertain very grave doubt that the question of unavoidable accident was raised by the evidence, in this case. Plaintiff’s car was going south on Hemphill Street at the time of the collision. The bus was traveling north on the same street. The most seriously controverted points raised by the testimony was as to which car was on its left side of the center of the street at the time of the accident. Defendant argues that the “big contention about the collision was as to which vehicle was over the center of the street.” We, too, think a determination of that question eliminates all other theories of how the accident could have happened. Defendant argues that it is obvious that the issue of unavoidable accident was raised by the evidence; that the jury could have believed that because the accident happened at night and because the traffic was heavy, and because there were so many lights and because there was no definite marker in the center of the street, that each driver believed himself to be on his right side of the center of the street, until it was too late to avoid the collision. We do not think the various hazards suggested by counsel argue anything in favor of unavoidable accident — that is, from some cause other than the negligence of one of the drivers. To our minds, they only present additional reasons for the use of a greater degree of care on the part of each to act prudently; that is, to conduct themselves at the time, in the manner that a reasonably prudent person would have acted under the same or similar circumstances. To fail to do so would be negligence and take the case out of the realm of unavoidable accident. A very similar situation to the one now before us is to be found in Younger Bros. v. Power, Tex.Civ.App., 118 S.W.2d 954, 958, application for writ of error dismissed. The court there said: “To say that this accident could not have been prevented by either one or the other of the two parties to it by the use of means suggested by common prudence — that is, by each of them having remained on his own right-hand side of the black stripe in the center of that highway — is to belie the direct testimony of them both, * * * it conclusively appears that if neither the one nor the other of them had been on his own left-hand side of the highway at the time, the collision would not and could not have happened; that being indisputably and unmistakably so, the inquiries were reduced to which one was so on his left-hand side, was he negligently there, and if so, did that negligence proximately cause the injuries td this appellee? Each driver * * * claimed that he was on the right-hand side, and that the other was on the left-hand side, and stuck to it throughout the trial before the jury, thus raising that as the clear-cut and controlling fact-issue in the case.” In such circumstances, the court held that the theory of unavoidable accident was not presented by any evidence in the case.

It has only been during the last decade that our courts have required of plaintiffs, seeking damages as a result of negligence, to assume, in addition to the establishment of negligence and proximate cause, the burden of showing that their injuries were not sustained from some other cause— that of an unavoidable accident. However, this added responsibility need not be determined, except and unless there is evidence tending to show it. There is an inclination of some of our courts to recognize the necessity of the submission of that issue to the jury on very slight provocation, a procedure to which we do not subscribe. We believe that issue, like any other fact issue, should be supported by evidence of a substantial nature and of such probative force as would support an answer by the jury. Viewing the testimony in this case, if the jury had answered that the accident was an unavoidable one — such as resulted from some outside source other than the negligence of one of these parties, we would be at a loss to find support for that kind of an answer in this record.

However, if we be mistaken in saying that unavoidable accident was not raised by the evidence, we find that the definition given by the court in this case is in harmony with and has the express approval of our Supreme Court, in Southern Ice & Utilities Co. v. Richardson, 128 Tex. 82, 95 S.W.2d 956, 958. In reversing that case, the court said: “We merely suggest that it will be more helpful to the jury upon another trial for the court t o define the term [unavoidable accident] substantially as, ‘an event which occurs without the negligence of the plaintiffs or the defendant.’ ”

In Sproles Motor Freight Lines v. Juge, Tex.Civ.App., 123 S.W.2d 919 (writ dismissed, correct judgment), this court approved the definition of unavoidable accident, as suggested in the Richardson case, supra, and commended the trial court for having followed it in the face of the many conflicting decisions previously announced.

Amberson v. Woodul, Tex.Civ.App., 108 S.W.2d 852, writ dismissed, approved a definition substantially as was given in the instant case; the definition there approved shows to be, “An accident which happens without fault on the part of either party, neither party being negligent, is classed in law as unavoidable.” That opinion cites in support of the holding case of Green v. Texas & Pacific R. Co., 125 Tex. 168, 81 S.W.2d 669, 673. Substantially the same definition was approved by the Commission of Appeals in Dallas Ry. & Terminal Co. v. Darden, 38 S.W.2d 777.

The latest expression on the subject by our Supreme Court which has come to our attention is found in Dallas Ry. & Terminal Co. et al. v. Price, 131 Tex. 319, 114 S.W.2d 859. In that case, there were two defendants, the Railway Company and a Cab Company. The trial court instructed the jury that unavoidable accident, as used in the charge, meant an event which occurs without having been proximately caused by the defendants, naming them. It was noted by the court that the definition limited the cause of the accident to something other than the negligence of the defendants, saying nothing about negligence of the' plaintiff. Of course, the definition was condemned. The court then explains what constitutes an unavoidable accident, using the language found in many of the older cases. Making the definition more concise, the court said (131 Tex. 319, 114 S.W.2d at page 860) : “In other words, an ‘unavoidable accident’ is one which happens without being caused by the negligence of either party. The definition in this instance should have, in effect, told the jury that by the term ‘unavoidable accident,’ as used in the question submitting the issue, is meant an event which occurs without having been proximately caused by the negligence of the defendant naming it, or of the plaintiff.” No reference is made by the court to its former holding in the Richardson case, supra, either by criticism or approval.

The Supreme Court, in Gulf, C. & S. F. R. Co. v. Giun, 131 Tex. 548, 116 S.W.2d 693, 116 A.L.R. 795, decided since the Price case, supra, made no suggestion of change in the definition of unavoidable accident from that given in the Richardson case, supra, but only suggested an improvement upon the manner in which the jury should be required to answer the issue.

In Dempster Mill Mfg. Co. v. Wiley, Tex.Civ.App., 131 S.W2d 257, 259, writ dismissed, judgment correct, a definition of unavoidable accident in this language was approved: “An unavoidable accident is one that happens suddenly and without fault or negligence of any party affected thereby.” It was further held in that case that the issue of unavoidable accident was not raised by the evidence and even if the definition was improper, it presented no reversible error.

Community Natural Gas Co. v. Lane, Tex.Civ.App., 133 S.W.2d 200, 202, application for writ of error dismissed, correct judgment (Lane v. Community Natural Gas Co., Tex.Sup., 134 S.W.2d 1058), held that an unavoidable accident was properly defined as, “An occurrence which happens without the fault of either the plaintiff or the defendant.” The definition given by the trial court in the instant case having the sanction and approval of the Supreme Court, we find no reversible error presented, even if that issue is raised by the evidence.

Defendant’s 28th assignment of error presented by his fourth proposition is to the effect that the court should not have entered judgment for plaintiff for $520, the difference in the value of the Pontiac car just prior to and immediately after the accident, for the reason that plaintiff had been paid by an insurance company for the loss of his car and had assigned to the company an interest in the judgment to be obtained to the extent of payment received by him.

There is no merit in this contention. It is well settled in this State that when a plaintiff assigns to another an interest in his chose in action, such assignee receives an equitable interest in the recovery, yet the assignee does not become a necessary party to the suit, but the assignor may, and in fact it becomes his duty to, prosecute the suit in his own name, for the use and benefit of the assignee, to^ the extent of the interest assigned.

In Kell et al. v. Mulligan, Tex.Civ.App., 254 S.W. 621, it was held that a broker who assigned his commissions before trial still had legal title to the chose in action, and might bring suit in his own name, and while the equitable owners were proper parties, they were not necessary parties.

Perhaps the most frequent declaration of the rule here involved occurs in cases where a litigant assigns a part of his cause of action to his attorneys. It has never been held, insofar as we can find, that in such circumstances the party who made the assignment lost his right to prosecute the suit in his own name. If he should subsequently abandon the case and refuse to prosecute an appeal, his assignee could prosecute the appeal in the name of the assignor. The assignor, in fact, would have no right, as against his assignee, to abandon the suit or even settle the controversy, to the detriment of the interest of his assignee. Seiter v. Marschall, 105 Tex. 205, 147 S.W. 226, and the many cases there cited.

In Dempster Mill Mfg. Co. v. Wiley et al., Tex.Civ.App., 131 S.W.2d 257, error dismissed, judgment correct, Wiley was a Works Progress Administration laborer and received an injury. Under 5 U.S.C.A. §§ 776 and 777, the federal agency employing him was obligated to advance the payment of medical and' hospital bills and when so done the employee was required to assign his claim against the offending party to the extent of the advancements made by the federal agency. Wiley complied with these provisions and continued to prosecute his suit against the defendant, who was alleged to have been responsible for his injuries. It was held that the assignment by the injured party, of a part of his claim to cover medical and hospital bills so advanced, did not preclude him from recovering- the items.

No errors are presented by the assignments in this case, and the judg.ment of the trial court is affirmed.


author: TIREY, Justice.

text:
    TEXAS INDEMNITY INS. CO. v. HUBBARD.
    No. 2247.
    Court of Civil Appeals of Texas. Waco.
    March 7, 1940.
    Rehearing Denied April 4, 1940.

      Sleeper, Boynton & Kendall, of Waco, and Webster Atwell, of Dallas, for appellant.
    George Clark and Clint Allen, both of Waco, for appellee.
   TIREY, Justice.

This is a workmen’s compensation case. Plaintiff, Fannie Hubbard, brought this suit for herself as -the wife of L. Hubbard, deceased, and as next friend for a minor, Louis H. Hubbard. Plaintiff alleged that she was the wife of the deceased, L. Hubbard, and that Louis H. Hubbard was a minor, seventeen years of age, and was the illegitimate child of L. Hubbard, deceased; and that she and the said minor were the sole heirs at law of L. Hubbard, deceased; that there was no administration upon the estate of L. Hubbard, deceased, and that none was necessary. Plaintiffs alleged that they were entitled to have the defendant redeem its liability in a lump sum, and, among other things, prayed for such relief, and, in addition thereto, asked for judgment apportioning to plaintiffs said recovery. The cause was tried by a jury and the award of the jury was favorable to plaintiffs, including lump sum award. In addition to the jury findings, the court found in his judgment that the plaintiff, Louis H. Hubbard, was an illegitimate child, and not entitled to recover either as an heir at law or as a beneficiary under the Workmen’s Compensation Act in this state, and further found that Fannie Hubbard was the sole heir at law of the deceased, L. Hubbard, and the sole beneficiary under the Workmen’s Compensation Act. The court, on the verdict of the jury and this finding, awarded to Fannie Hubbard the entire amount found by the jury. The court further decreed that Louis H. Hubbard, minor, suing herein by Fannie Hubbard as next friend, take nothing by his asserted cause of action against Texas Indemnity Insurance Company. No exception was taken to the judgment entered against the minor. The defendant has perfected its appeal from the judgment entered against it in favor of the plaintiff, Fannie Hub.bard. The supersedeas bond is payable to Fannie Hubbard only.

Appellant’s first proposition is: “The trial court erred in overruling and not sustaining the special exceptions numbered 2, 3, 4, 5 and 6 of defendant because said special exceptions were levied to conclusions plead by the plaintiff and such allegations were not based upon factual allegations.” We have carefully considered this proposition, and are of the opinion that the plaintiffs’ pleading was a sufficient statement of the cause of action for admission of proof as to the nature and scope of deceased’s employment. See Southern Surety Co. v. Weaver, Tex.Com.App., 273 S.W. 838, 840, par. 1. Nor was it necessary to name the agent of the Southland Ice Company who employed the deceased. Jackson v. Dickey, Tex.Com.App., 281 S.W. 1043, 1044. Moreover, a large measure of discretion is vested in the trial court in this regard, and, in the absence of a showing of abuse of discretion or injury resulting from the ruling, the trial court’s ruling will not be disturbed. Constitution Indemnity Co. of Philadelphia v. Armbrust, Tex.Civ.App., 25 S.W.2d 176, 180, pars. 9 and 10, writ refused; Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822, 825, par. 5; Rule 62a of Courts of Civil Appeals. Appellant’s first proposition is overruled.

Appellant next complains that the court erred in placing Raymond Dailey, the engineer in charge of the work which the deceased was doing, under the rule and excluding him from the courtroom. It is a well established rule that permitting witnesses to remain in the courtroom or excluding them under the rule is a matter within the sound discretion of the trial judge and not subject to a reversal in the absence of a showing of abuse of discretion. Gulf, C. & S. F. R. Co. v. Bruce, Tex.Civ.App., 24 S.W. 927, par. 1; St. Louis S.W. Ry. Co. v. Cox, Tex.Civ.App., 221 S.W. 1043, 1044, par. 4; Southland Greyhound Lines v. Matthews, Tex.Civ.App., 74 S.W.2d 713, 716, pars. 9 and 10; Rule 62a, Court of Civil Appeals, 149 S.W.X; 5 C.J.S., Appeal and Error, § 1610, p. 510. Appellant’s second proposition is overruled.

Appellant next contends that the undisputed evidence shows that employee was not engaged in the usual course of the trade, business, profession or occupation of his employer within the meaning of R. S. art. 8309, sec. 1, as amended, Vernon’s Ann.Civ.St. art. 8309, § 1, and that the trial court erred in not granting its motion for an instructed verdict. The evidence shows that the employer, Southland Ice Company, was a corporation engaged in the business of manufacturing and selling ice, and that it owns, maintains and operates an ice plant on Elm Street in the city of Waco, as well as other plants situated elsewhere in Texas. The employer purchased the old ice cans in place at the Robinson Ice Plant in Waco, which plant was no longer in operation. The employer elected to remove the cans out of the old tank and haul them away to its various plants. Ice cans are used and needed for the manufacture of ice, and that from time to time in the ordinary operation of the business, it is necessary for these cans to be replaced, and it appears that the ice cans were bought by the employer for replacement purposes. The evidence shows that the manager of the local plant sent the engineer of the local plant to the old Robinson Ice Plant to superintend the removal of the ice cans from the tank and to employ the men to do the job on or about June 23, 1938. There is evidence that the engineer hired plaintiff's husband to help remove the ice cans and that he became overheated and suffered a heat stroke, which incapacitated- him for approximately three months, and as a result of which he died on December 23, 1938. The general rule is that whether the employment of a workman injured while engaged in a particular task is within the usual course of the business of his employer is ordinarily a question of fact. To make such an issue a question of law, the testimony must not only be without contradiction but must be so conclusive that reasonable minds cannot differ as to its effect. Croswell v. Commercial Standard Insurance Co., Tex.Civ.App., 56 S.W.2d 918, 920, par. 2. Moreover, the evidence was uncontroverted that it was necessary for the employer to make replacements of these ice cans at its various plants from time to time as and when they were needed, and it appears to us that the work deceased was employed to do was in no sense unusual in the business carried on by the employer. The employer would certainly have the right to buy such equipment it desired to be used for replacement purposes or otherwise in the conduct of its business. We think the facts of this case place it well within the rule announced by the Commission of Appeals in Wells v. Lumbermen’s Reciprocal Association, 6 S.W.2d 346. See, also, Traders & General Ins. Co. v. Powell, Tex.Civ.App., 82 S.W.2d 747; Id., 130 Tex. 375, 110 S.W.2d 559; and Hartford Accident & Indemnity Co. v. Clark, Tex.Civ.App., 126 S.W.2d 799. Moreover, in the case of Texas Employers Insurance Ass’n v. Wright, 128 Tex. 242, 97 S.W.2d 171, 173, the Commission of Appeals announced this doctrine: “An employee injured when performing at his employer’s direction work outside the scope of his usual duty is entitled to compensation, provided the work in which he is engaged when injured is within the usual course of the employer’s business.” Under the foregoing rule, it occurs to us to be a sound doctrine that when any manufacturing establishment, in the exercise of its discretion, buys secondhand machinery or other equipment, to be used by it in its manufacturing business, that it is acting within the usual course of its business, and persons employed by it in the assembling of the same are employed within the usual course of the employer’s business. A careful reading of the emergency clause in connection with the amendment with reference to section 1 of Art. 8309, as enacted by the 45th Legislature, chap. 262, p. 537, Vernon’s Ann. Civ. St. art. 8309, § 1, removes all doubt in our mind as to the matter under discussion. Surely the Legislature, by the amendment referred to, intended to liberalize the act and to remove and eliminate the extremely technical construction that had been placed by our courts on the Act in question. In Huffman v. Southern Underwriters, Tex.Sup., 128 S.W.2d 4, 9, the Supreme Court, in discussing our Workmen’s Compensation Act, said: “We should also keep in mind the universal rule that compensation laws are liberally construed.” We follow that rule. Appellant’s third proposition is overruled.

We have considered appellant’s proposition No. 4, which complains of the court’s definition of “usual course of business” and find no merit in same. It is overruled. Wells v. Lumbermen’s Reciprocal Ass’n, Tex.Com.App., 6 S.W.2d 346.

Appellant seriously complains of the action of the trial court in the additional instructions that the trial court gave to the jury after the cause had been submitted and after the jury had entered upon its deliberations. We have carefully reviewed the bill of exception and the qualification of the trial court and are of the opinion that said assignment does not present error. The record shows that the jury reduced their questions to writing and same were submitted to the court and the court prepared his answers and instructions to said request and submitted them to counsel and gave counsel an opportunity to object to the instructions and advised them that they could re-argue the case, if they desired to do so. We are of the opinion that the trial court followed Articles 2197 and 2198 in response to the questions asked by the jury and the further instructions given. See Goode v. Ramey, Tex.Civ.App., 48 S.W.2d 719, 722, pars. 9 and 10; Dallas Railway & Terminal Co. v. Starling, 130 Tex. 379, 110 S.W.2d 557.

Appellant’s sixth proposition is to the effect that the jury’s finding that L. Hubbard was an employee of the South-land Ice Company is against the great and overwhelming preponderance of the evidence. Proposition No. 7 is that the finding of the jury that L. Hubbard suffered a heat stroke while in the employment of the Southland Ice Company is against the great and overwhelming preponderance of the evidence. We have carefully read the evidence under each of these assignments, and, in our opinion, the testimony is ample to support the jury finding thereon. These assignments are overruled.

Appellant’s 11th assignment complains that the jury’s finding in response to special issue No. 12 of $17.50 as the average weekly wage of L. Hubbard, deceased, is wholly without evidentiary support and contrary to all evidence adduced on the trial of this cause. The court submitted said question to the jury in accordance with paragraphs 1, 2 and 3 under section 1 of Art. 8309, and we are of the opinion that there is sufficient testimony to sustain the findings of the jury on this matter, and the assignment is therefore overruled. Lumbermen’s Reciprocal Ass’n v. Warner, Tex.Com.App., 245 S.W. 664; United States Casualty Co. v. Vance, 91 S.W.2d 465, writ refused; Federal Underwriters Exchange v. Stewart, Tex.Civ.App., 109 S.W.2d 1031; Maryland Casualty Co. v. Drummond, Tex.Civ.App., 114 S.W.2d 356, writ refused; Consolidated Underwriters v. Lowrie, Tex.Civ.App., 128 S.W.2d 421.

Appellant’s eighth assignment is to the effect that since Fannie Hubbard brought the suit for herself and as next friend for her minor stepson, and that since her interests in her own behalf are adverse to said minor’s, and because she alone testified to said minor’s alleged illegitimacy, and that since said minor’s alleged illegitimacy is the sole bar to said minor sharing with plaintiff in the award, the court erred in rendering judgment that said minor take nothing, and that Fannie Hubbard take all of the award. The appellant’s ninth proposition is to the effect that there are neither pleadings nor proof that Fannie Hubbard is the sole heir at law of L. Hubbard, deceased, or the sole beneficiary under the statute, and that the court erred in rendering judgment for Fannie Hubbard for the full amount which the court deemed recoverable under the award. The tenth assignment is to the effect that since Fannie Hubbard brought the suit in behalf of herself and' as next friend for said minor to recover the compensation which she alleged was due L. Hubbard at the time of his death, and since she alleged that she and said minor were the sole heirs at law of the said L. Hubbard, deceased, and that there was no-administration on his estate and no necessity for same, but offered no proof whatever to establish Hubbard’s intestacy, or that he left surviving him no other children or descendants of deceased children other than said minor, or that there was no necessity for administration on said L. Hubbard’s estate, the court erred in-rendering judgment in this cause in any amount which the court deemed L. Hubbard, deceased, was entitled to have recovered after his injury and prior to his, death. The evidence is uncontradicted that Fannie Hubbard was the surviving widow of L. Hubbard, deceased, and that she had been living with the deceased continuously as his wife for twenty-six years up until the date of his death. Under section. 8a of Article 8306, Fannie Hubbard was a beneficiary and was entitled to maintain this suit for herself, and under the express provisions of said section the compensation accruing by. reason of the injuries sustained and resulting death of the said L-Hubbard, was not subject to the payment of the debts of L. Hubbard, nor to his legal beneficiaries. Therefore, it occurs to us that there was no necessity to allege nor no necessity for proof showing that no administration was had and none necessary on his estate. Smith v. Southern, Surety Co., Tex.Civ.App., 193 S.W. 204; Moore v. Lumbermen’s Reciprocal Ass’n Tex.Com.App., 262 S.W. 472. Under Article 1994, R.S., she had authority to-bring the suit as next friend of the minor. We do not find that appellant offered any testimony as to the heirs of L. Hubbard, deceased. We do not find any objection made by appellant to the court’s finding in his judgment that Louis H. Hubbard was the illegitimate child and riot entitled to recover as an heir at law or beneficiary under the workmen’s compensation law. Appellant failed to assign error to that part of the judgment in motion for new-trial, and appellant did not appeal from, the judgment of the court denying recovery to Louis H. Hubbard. Appellant in the trial court made no attempt to abate and dismiss the suit on the ground that. Fannie Hubbard, for herself and as next friend for the minor, Louis H. Hubbard,, could not maintain this suit because there were other necessary parties. Appellant: answered plaintiffs’ suit to set aside the-award on its merits. Under the authority of Safeway Stores, Inc., of Texas v. Rutherford, 130 Tex. 465, 111 S.W.2d 688, the contention of the appellant that Fannie Hubbard could not maintain the suit for herself and as next friend for the minor cannot be raised at this time. See, also, Moke v. Fellman, 17 Tex. 367, 67 Am.Dec. 656; Montgomery v. Carlton, 56 Tex. 361; Martin v. Weyman, 26 Tex. 460, cited in the foregoing opinion. The plaintiff alleged that she and Louis H. Hubbard, the minor, were the sole heirs at law of said L. Hubbard, deceased. Now on the trial of the cause, the proof introduced showed that Fannie Hubbard was the surviving widow and that Louis H. Hubbard was his illegitimate son. There was and could be no adverse interest of Fannie Hubbard to that of the minor, Louis H. Hubbard, in the amount recoverable for the injuries .and death of the said L. Hubbard. Rule 62a for Courts of Civil Appeals is, in part, .as follows; “ * * * and if it appear .to the court that the error affects a part ,only of the matter in controversy and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error.” In Barnsdall Oil Co. v. Hubbard, 130 Tex. 476, 109 S.W.2d 960, point page 963, the Supreme Court said: “It seems to be true that, if an appealing party desires to limit his appeal, he should clearly and distinctly indicate such intention.” The record is uncontradicted that appellant did not except to the judgment entered in its favor against the minor and it did not appeal from said judgment entered in its favor against the minor, in that the super-sedeas bond is made payable to Fannie Hubbard only. It appears to us beyond question that the amount of the award recoverable is entirely severable from the issue as to whether or not the minor is entitled to share in said award. Under the foregoing authority, we are of the opinion that the appellant is not in position to complain of any injury in the apportionment of the award against the minor. See, also, Durham v. Scrivener, Tex.Com.App., 270 S.W. 161.

Under the doctrine announced in Texas Employers Ins. Ass’n v. Boudreaux, Tex.Com.App., 231 S.W. 756, it was held that compensation awarded for injuries resulting in death should be distributed according to the statute of descent and distribution applicable when distributing community property. Article 2578 of our statutes, among other things, provides: “Upon the dissolution of the marriage relation by death, all property belonging to the community estate of the husband and wife shall go to the survivor, if there be no child or children of the deceased or their descendants.”

Under the above statute and the interpretation given thereto by the Supreme Court, there can be no controversy as to the apportionment to be made between the widow and the children, if any, of the deceased. In the case of Millers’ Indemnity Underwriters v. Schrieber, Tex.Civ.App., 240 S.W. 963, point page 970 (writ refused), the court held (which cause was tried before a jury) that the question of proration of the award between surviving parent and minor children could be reformed by the court and as reformed, affirmed.

Appellant contends that this cause should be reversed because “Fannie Hubbard undertook in this proceeding to assert, in the capacity of next friend, her minor stepson’s right of recovery against defendant, as well as her own, and since the interest she asserts in her own behalf is clearly adverse to said minor’s, in that said minor’s alleged illegitimacy, to which, on the trial she alone testified, is the sole bar to said minor’s sharing with' her in the award * * * ». The record is uncontroverted that Fannie Hubbard, for herself and as next friend for the minor, gave notice of the injuries and death of her husband as required by law. The Industrial Accident Board held adversely to the claim of the plaintiff as well as that of the minor. Fannie Hubbard, for herself and as next friend for the minor, gave the necessary notice and filed suit for herself and as next friend for the minor to set aside the award of the Board. In the pleading that she went to trial on, she alleged, among other things, that Louis H. Hubbard, the minor, was 17 years of age and that he was the illegitimate child of L. Hubbard, deceased, and that they were the sole heirs at law of said L. Hubbard, deceased. She further alleged in said petition that she and Louis H. Hubbard were dependent upon L. Hubbard, deceased, for a livelihood. She further set out in her pleadings: “this is' a special case, and that manifest hardship and injustice will result unless defendant is required to redeem its liability herein by the payment of a lump sum, and the plaintiffs are entitled at this time to be awarded a lump sum * * In her prayer, among; other things, she prayed “for judgment apportioning to plaintiffs said recovery.” Upon the trial of the case, Fannie Hubbard testified, without contradiction, that she was S3 years of age, that she was the widow of L. Hubbard and that she and L. Hubbard had lived together as husband and wife continuously since their marriage until his death for a period of twenty-six years. She testified that Louis H. Hubbard, the minor, was 17 years of age, and that he was born to her husband and some other wopian about 9 years after Fannie Hubbard’s marriage to L. Hubbard and that he had never lived at her house and that she had never taken care of the minor, but she said her husband had supported him. In addition thereto, the evidence is undisputed and unimpeached that the plaintiff Fannie Hubbard, at the request of her counsel, furnished to appellant’s counsel in open court during the trial of the case the name and address of the mother of the minor, Louis H. Hubbard, and that the minor’s mother resided in the city of Waco. There is nothing in the record to indicate that Fannie Hubbard at any time asked the court to award the whole of the judgment recovered to her. It definitely appears that the next friend and her counsel acted in the utmost good faith with the court, the appellant and the minor, in that they fully advised the court and the appellant as to the existence of the minor, his dependency upon the deceased, and in their prayer, prayed for judgment apportioning to plaintiffs said recovery. Appellant had ample notice of the claims of the plaintiff and the minor and by what right they claimed, and had an opportunity to make a full investigation thereof.

Under the above condition of the record, the trial court found that the plaintiff, Louis H. Hubbard, was an illegitimate child and not entitled to recover either as an heir at law or as a beneficiary under the Workmen’s Compensation Act. The insurance company, upon discovering the conflict of interests between the mother and the child, made no request for the appointment of a separate guardian ad litem to represent the interests of the minor. The question therefore guises, can the appellant complain at the action of the trial court in the finding it made to the effect that the minor was an illegitimate son of I.,. Hubbard, deceased, and the disposition made of the case that necessarily followed on such finding? The question presented is one of some difficulty. In 23 Tex.Jur. p. 763, sec. 66, we find this rule: “The trial court has full power to substitute another in .lieu of the infant’s original next friend, whenever such step is deemed to be in the interest of the minor. A proper occasion for substitution arises where it appears that the interests of the next friend and the minor are in direct conflict, as, for example, where the suit presents the issue of the right of the next friend to recover a judgment against the minor. This is a matter that is largely within the discretion of the trial court, and its decision will not he disturbed in the absence of a showing that discretion zvas abused." In the face of the above record, did the trial court abuse its discretion in its failure to appoint a • guardian or substitute someone else to represent the minor’s interest in the apportionment of the award made by the jury in its verdict?

In the case of Martin v. Weyman, 26 Tex. 460, the court said: “The action of the next friend of a minor, is within the control of the court. It may at any time, if deemed for the interest of the minor, substitute a new party as his next friend, in place of one with whom the suit was originally commenced.” In the case of Jones v. Chronister Lumber Co., Tex.Civ.App., 204 S.W. 704, 705, the court said: “The propriety of appointing a new representative of the minor in a pending controversy rests within the discretion of the court, and we cannot say that the averments of the alleged guardian in an unsworn petition like this were sufficient to require the court to make the change.” Under Article 1994-of the Revised Civil Statutes, Fannie Hubbard was acting within her rights in bringing the action in question as next friend of the minor. See: Wilson v. Fisher, Tex.Civ.App., 105 S.W.2d 304, point 7, at page 310, writ refused. There is nothing in the record to indicate that Fannie Hubbard was guilty of any fraud and overreaching with reference to the matter in question, and there is nothing in the record to indicate that the trial court abused his discretion in failing to appoint someone else to represent the minor. Nor did the trial court err in finding under the evidence that Louis H. Hubbard was the illegitimate son of L. Hubbard, deceased. See Dunlap v. Wright, Tex.Civ.App., 280 U.W. 276, point at page 279. The testimony of Fannie Hubbard as to the illegitimacy of the minor is direct and positive and there are no circumstances in the record tending to discredit or impeach her testimony. Under the provisions of Article 2581 of our Revised Statutes, the minor, being illegitimate, could not participate in the award made by the jury. Under the provisions of Article 2578 of our Revised Statutes, the whole of the award found -by the jury passed to the surviving widow, and we therefore overrule the foregoing assignments.-

The judgment of the trial court is affirmed.


author: BROWN, Justice.

text:
    LONE STAR GAS CO. v. BALLARD.
    No. 14039.
    Court of Civil Appeals of Texas. Fort Worth.
    March 1, 1940.
    Rehearing Denied April 5, 1940.
    Walker, Smith & Shannon, of Fort Worth, and Thompson, Knight, Baker, Harris & Wright, Adair Rembert, and Sol Goodell, all of Dallas, for appellant.
    Houtchens & Houtchens, Robert V. Weddell, and J. Harold Craik, all of Fort Worth, for appellee.
   BROWN, Justice.

The appellees, Joan Ballard Connally, joined by her husband, Robert Connally, who was made a party plaintiff after this suit was brought by his wife, as a feme sole, have sued appellant, Lone Star Gas Company, for personal injuries sustained by Mrs. Connally, by reason of stepping into a gas meter box owned by appellant and in which appellant’s meter, used in connection with serving natural gas to Mrs. Connally’s mother’s residence, was installed. Mrs. Connally was living with her mother when the alleged accident occurred.

By the allegations of the petition, it is disclosed that the meter box in question is not installed on or in any part of the sidewalk in front of the premises, but same is a few inches from the street curb, and is evidently between the sidewalk, or portion of the street used as a sidewalk, and the said curb. In other words, the pleading and the evidence disclose that the meter is not placed where persons customarily walk, or on any place designed for use by pedestrians.

Appellees allege that Mrs. Connally, on a dark, rainy afternoon, was going to get in an automobile which was parked near her mother’s home, not directly in front of the house, but to one side of the line drawn from the steps to the street curb, directly in front of the house.

The acts alleged to constitute negligence are, in substance: That the defendant failed to place and keep placed a top or covering upon and over the meter box; defendant and its agents left the meter box open, with the top off, without giving protection to persons who would walk over the place where the meter box is located; defendant failed to use ordinary care to see that the top or covering of the meter box was kept over the box; defendant “failed to inspect or look after the meter box for an unreasonable time and for more than two days, to see and ascertain whether or not said top or covering was kept over said meter box or whether some person other than defendant’s employees had taken said top or covering off of said meter box, so as to prevent persons traveling thereon from stepping into same and harming and injuring such persons, as did plaintiff herein upon the occasion in question”; defendant placed no guards around the open meter box; defendant placed no signs or warnings to notify the public and plaintiff that the meter box was open.

When the taking of testimony was concluded, the defendant requested a peremptory instruction in its favor, and the request was denied.

The cause being tried to a jury, the following findings were made: (1) That “the defendant failed to keep placed a top or covering upon and over the meter box on the occasion in question”, (2) that such failure was negligence, (3) and a proximate cause of the injury to plaintiff, (4) that “the defendant, its officers, agents and employees in charge of the meter in question failed to exercise ordinary care to discover that the meter box was uncovered, upon the occasion in question”, (5) that “the defendant, its officers, agents and employees in the exercise of ordinary care should have discovered said opened meter box prior to the time the plaintiff fell into said meter box”, (6) that “the meter box in question had been opened prior to the time plaintiff stepped into said meter1 box, a sufficient length of time so that in the exercise of ordinary care the defendant, its officers, agents and employees in charge of said meter box should have discovered the same and covered it prior to the time plaintiff stepped into said meter box”, (7) that “the defendant in failing to discover and cover said meter box prior to the time plaintiff stepped into it was guilty of negligence”, (8) that such failure was a- proximate cause of plaintiff’s injury, (9) that plaintiff suffered personal injuries, (10) her damages were fixed at $1,750, (11) that plaintiff did not fail to keep a proper lookout for her own safety, (12 and 13) not answered because of answer to No. 11.

Defendant addressed many objections to the court’s charge, all of which were overruled, but we have concluded to notice only a few that are, in our opinion, controlling here, although there may be merit in some that are not discussed.

The criticism against issue No. 1, and its supplemental issues, is that there is no evidence to warrant the submission of an issue asking the jury to find whether or not the defendant failed to keep the top or covering on the meter box, and whether or not such failure constitutes, negligence and a proximate cause of plaintiff’s injuries.

It occurs to us that this contention is sound. We are reluctant to hold that the law imposes a duty upon the defendant to keep the top or covering over the meter box. If the law imposes no duty, there could be no negligence.

We believe that, in cases like the one before us, negligence must be predicated upon the existence of the dangerous, condition being actually known to the defendant, or upon the existence of such condition for such a period of time as that the failure to discover the dangerous condition and remedy it raises an issue of negligence.

This rule has been applied to municipalities and the same rule is applicable to public service corporations. 30 Tex.Jur., § 292, p. 529; City of Galveston v. Smith, 80 Tex. 69, 15 S.W. 589; Klein v. City of Dallas, 71 Tex. 280, 8 S.W. 90; City of Austin v. Ritz, 72 Tex. 391, 9 S.W. 884; City of Fort Worth v. Johnson, 84 Tex. 137, 19 S.W. 361; Reegan v. City of Galveston, Tex.Civ.App., 24 S.W.2d 61; City of Grandview v. Ingle, Tex.Civ.App., 90 S.W.2d 855.

A well considered opinion by the Court •of Civil Appeals for the Waco District is that of Sterling v. Community Natural Gas Co., 105 S.W.2d 776, in which it is said that the rules announced in the cases cited above in relation to municipal corporations •are, by analogy, applicable to gas companies.

These principles and rules have been extended so as to apply to cases in which suits have been brought because of' defective conditions in premises, or because of ■dangerous conditions appearing therein. Such cases as these illustrate the point: Graham v. F. W. Woolworth Co., Tex.Civ.App., 277 S.W. 223, writ dismissed; Great Atlantic & Pacific Tea Co. v. Logan, Tex.Civ.App., 33 S.W.2d 470; The Fair, Inc., v. Preisach et al., Tex.Civ.App., 77 S.W.2d 725; Derichs v. O. K. Auto Parts & Sales Co., Tex.Civ.App., 92 S.W.2d 465, writ dismissed; and the following case decided by us: Worth Food Markets, Inc. v. Le Baume, 112 S.W.2d 1089, writ dismissed.

We are convinced that appellee in this suit could only recover by proving that the meter box top had been off for such a length of time that the defendant ought, by the exercise of ordinary care, to have known of this fact, and ought to have remedied it. No other hypothesis is attempted to be presented by the evidence, and looking to the evidence, we find that Mrs. Lane, plaintiff’s mother (with whom she lived), testified that she had not seen the defendant’s meter reader read the meter in the box in controversy; that she knew about what day he reads it, but she did not attempt to tell “what day” he customarily reads the meter; that her daughter was hurt on or about December 10th, 1937.

All of the testimony touching the question of how long the top had been off the meter box comes from the lips of Mrs. Lane. She was asked if she had noticed, prior to plaintiff’s fall, that the top was on or off the box, and she answered in the affirmative. She then testified that it was off. She was asked: “How long had it been off- just preceding this accident, to your knowledge?” She answered: “I could not say. Three or four days I noticed it off.”

She then testified that she did not do anything toward calling anyone about the top being off and took no steps to put the top on.

The testimony shows that the plaintiff became 21 years old on the 14th day of December, 1938. The accident is alleged to have occurred on December 10th, 1937, about four days before she reached her 20th birthday. It thus appears that plaintiff was a minor and a constituent member of her mother’s household and family, when the accident occurred.

There is no evidence tending to show that the defendant was guilty of any act of negligence, either of omission or commission, while the testimony just detailed discloses that the only negligence which tended to bring about the accident was that of plaintiff’s mother, who discovered the dangerous condition, existing on premises occupied by her, three or four days before the accident, and who did not take any steps to remedy the situation or to warn her daughter of the existence of the dangerous condition.

We are of opinion that the testimony which shows that the lid had not been on the meter box for three or four days is insufficient to raise an issue touching negligence upon the part of the defendant in not discovering that fact before the accident, and there being no evidence tending to show that the defendant actually knew that the lid was off, no issue touching negligence on the part of the defendant in not replacing the lid, was raised.

The place where this accident is said to have occurred is in the residential portion of the City of Fort Worth — a City of some 175,000 souls, according to the census report — and in a neighborhood where there is no paved sidewalk in front of the residence in which the plaintiff lived.

The fact that the lid had been off for three or four days, prior to the accident, can form no basis for finding the defendant negligent in not discovering such fact and remedying it before the accident occurred, in the absence of any evidence of actual or constructive notice to the defendant.

It is not contended that there was actual notice and there being no evidence showing that any person connected with the defendant had occasion to see the meter box, during the three or four days in which the lid was off, it cannot be contended that, in such a situation as we have here, a period of three or four days is sufficient time within which to charge the defendant with a duty to discover such defect.

As we view the law, sound reasoning requires that the dangerous condition be open and obvious, and that this condition should have existed for such a length of time that a reasonably prudent person, in the exercise of ordinary care, could or should have discovered it and remedied it before the injury was inflicted.

The mother of the plaintiff had charge of the premises and she did not think the condition dangerous enough to report it to the defendant.

To hold the defendant negligent in this case it is necessary to hold that it is the duty of the defendant to inspect every meter in the City of Fort Worth at least seven times each month, for the purpose of discovering such a condition as arose in this case, and we do not believe any such duty is imposed by law, or in reason.

We believe the peremptory instruction requested by the defendant should have been given.

There is one other proposition that we feel should be discussed because of its importance.

When the evidence was all in, it became apparent that the only question that could have been up for determination was whether or not the lid had been off of the meter box for such length of time as that by the exercise of ordinary care the defendant should have discovered such fact and should have remedied the situation before the accident occurred.

The trial court submitted Issue No. 4, asking whether or not the defendant, its officers, agents and employees in charge of the meter, failed to exercise ordinary ' care to discover that the meter box was uncovered, and submitted Issue No. 5, asking whether or not such persons, in the exercise of ordinary care, -should have discovered that the meter box was opened, prior to the time plaintiff fell into it, and submitted Issue No. 6, asking whether or not the meter box had been opened prior to the time the plaintiff stepped into it, a sufficient length of time so that, in the exercise of ordinary care, the defendant, its officers, agents and employees in charge of the meter box, should have discovered the condition and have covered it prior to the time plaintiff stepped into it, and then submitted Issue No. 7, asking the jury to find whether or not the failure of the defendant to discover and cover the meter box, prior to the time plaintiff stepped into it, was negligence.

The objection that the repetition of the matters and facts disclosed by these issues is an improper repetition of plaintiff's theory and gives undue emphasis to same, and is prejudicial to defendant, seems well taken. Kroeger v. Texas & P. R. Co., 30 Tex.Civ.App. 87, 69 S.W. 809; El Paso Elec. R. Co. v. Benjamin, Tex.Civ.App., 202 S.W. 996, writ dismissed; Galveston H. & S. A. R. Co. v. Andrews, Tex.Civ.App., 291 S.W. 590, writ dismissed; St. Louis S. W. R. Co. v. Kerr, Tex.Civ.App., 184 S.W. 1058; Stringfellow et al. v. Braselton, 54 Tex.Civ.App. 1, 117 S.W. 204 (opinion by Mr. Justice Dunklin) ; Panhandle & S. F. Ry. Co. v. Friend et ux. Tex.Civ.App., 91 S.W.2d 922; 41 Tex.Jur., para. 288, page 1132; Speer’s Law of Special Issues (1932) paragraphs 198 and 199, pages 260 to 262, inclusive, and cases cited; see, also, same author (1939 supplement), same paragraphs, page 139, and cases cited.

We pretermit discussing the other propositions, as we have concluded that the evidence wholly fails to show any duty imposed upon the appellant, or the failure to perform any duty that it owed to the plaintiff.

The judgment of the trial court is reversed and judgment is here rendered for appellant.