*1 COMPANY, CASUALTY CONTINENTAL
v. STREET, Jr., Respondent.
John G.
No. A-9706.
Supreme of Texas.
March
Rehearing 3, 1964. June Denied
Pepper, McGlinchey, Fort Markward & Worth, petitioner. *2 Parker, Snakard, operation of for & nor excess Friedman
Stone,
$500.00
Gambill,
performed
result
Brown,
operations
as the
G.
with above
all
Lawton
period
any
any
Herrick,
Worth,
one
firm,
for
of
one accident
Fort
W.
John
respondent.
of sickness.”
specific listing of 198
There follows a
STEAKLEY,
maximum
together with the
Justice.
expense
actual
incurred
of
opinions,
Decem-
former
delivered
Our
pay.
company will
each
which the
following
ber
1963 are withdrawn. The
range from
The maximum amounts
$5.00
opinion
is the
of the Court.
pinch
graft
for a to-
skin
to $500.00
Respondent,
by
G.
The suit was
stomach,
tal
or for the
removal of the
John
Casualty
Jr., against
Street,
breasts,
radical
or for the
removal of both
Company, Defendant below and Petitioner
disc with
removal of an intervertebral
quite
history.
here.
It has had
a
See
spinal
listed.
surgery
fusion. Dental
is not
opinions reported
Tex.Civ.App.,
339 S.
by
This schedule is followed
a con-
746;
680; Tex.Civ.App.,
W.2d
358 S.W.2d
cluding paragraph:
Tex.,
us
184. It reaches
S.W.2d
judgment
this occasion from a
subject
“The Company
pay,
will
Appeals,
Court of Civil
with one Justice
provided,
the limit
opinion, reversing
filing
dissenting
a
named
objectively
above amounts
de-
judgment
the trial court for
termined on the basis of
Tex.Civ.App.,
remanding
the cause.
As to the
him
with those listed in the
performed upon
acceptance
acts
Street con
Street did not
to the
operations.
Century Indemnity
the'jury
incomplete,
stituted
Cf.
verdict as
and thus
Carroll,
timely objection
Co. v.
126 Tex.
86 S.W.2d
afford
the trial court
second,
opportunity,
As to the
we affirm the cor
dis
before the
was
charged,
holding
correcting
(if
rectness of the
the Court of
the error
such
was)
Civil
v. Continental
of accepting
the verdict with the
Casualty Co., Tex.Civ.App.,
Only
(in application which wc dismissed the have benefitted from a reconsideration point brought favorably in. answered him. was to' But the as it jury of the verdict case, up part, is that he at least in required preserve error tried his He was part theory represented on the on the have been there upon the jury verdict he not entitled a new trial accepting court later claim was immaterial particular unanswered. issues with the Employers’ controlling. Insurance Cf. Allen American v. Texas Lewis v. Tex.,
Ass’n, Company, 599. This S. Tex. 246 S.W.2d National Insurance had no al court did not do. The trial W.2d 604. ren hut to under the verdict ternative Rehearing *4 both Pe- of Motions for Respond and judgment der Respondent and are overruled. titioner any might have benefit he ent waived issues, claimed under the unanswered SMITH, (dissenting). Justice any right have them have had to answered. agree I I respectfully dissent. with two Court, principle holdings of the of but the rehearing Respondent’s motion agree judgment do not with the that 11, judgment of December and our granted, take nothing by his suit. Judgment is now ren- is set aside. of the reversing judgment the dered First, I agree that Street did establish judg- Appeals affirming the Civil of performed upon the that acts him consti- trial ment the court. Second, of “operations.” agree tuted I with holding qualified legally
the doctor of that a REHEARING FOR surgery “legally qualified physi- ON MOTIONS dental is a provisions cian surgeon” within the Special if necessary decide It is not to policy. the insurance and control- 21 was an ultimate Issue No. Re- case, insisted ling out, in this as points jury As the Court the par- spondent amici. The supporting Special in answer Issue No. the to that as such. consented to submission performed ties its Dr. Treadwell Respondent es- Street offered evidence to comparative severity were not a with operations performed on operation. that the jury tablish sinus It is true that comparative severity gums were his could Special not answers Is- among the the sinus which was inquired sues 4-8 which as to amount of policy. Ac- money comparable 198 listed be which would and rea- cordingly, inquired jury Issue 21 of the paid upon sonable for Street be basis comparison a severity op- follows: of the performed upon erations him with those you preponderance find from a “Do policy. listed in It is true that Street objectively deter- evidence object acceptance did jury not comparative mined, on basis of However, incomplete. verdict I not do severity, agree that foregoing proceedings found, Dr. have so judge court trial the trial al- left “no a the mouth Treadwell as dentist ternative under ren- verdict but to comparative plaintiff not judgment (Continental der for Petitioner with, Cutting into oth- ‘Sinus Casualty) puncwtre, muffle’, as listed er than question?” policy rendered judgment trial court Casualty upon jury’s an- Continental op- Special swer to Issue No. previous opinion, stated in our As performed upon erations Street were not object Respondent to the is Street did not particular severity with a sinus have insisted sue and without would doubt in the insurance had listed judgment in the issue favor sustained than the for an of Civil amount The Court could Special judgment No. how a Issue the trial court enter contention Street’s Company? issue, Casualty for Continental Un- controlling and there- was not my ques- not der construction of the jury’s fore answer thereto tion, Casualty promised support Continental Cas- Special ($5.00) No. Street a minimum for his ualty. fully agree I only absolutely no controlling even if he offered 21 was not issue. testimony affirming comparing the of his basis for this court’s action apparently “unnamed” ei- those court’s that, named. theory ther the inasmuch as the 4-8, Special failed to answer Issues Thus, though even failed an carry proving did the burden of though swer Issues even 4— paid under amount he entitled was acceptance did to the theory provisions, or on the unanswered, verdict with the issues Special Issue the answer thereto No. 21 and there was still verdict a basis judg- controlling. trial court’s *5 recovery in Inasmuch as his behalf. theory, ment cannot be affirmed on either up that the acts found grounds nor can it be affirmed on the stated spe operations, on Street constituted opinion rehearing. in on the Court’s policy him be cific terms of the entitled to “ * * * minimum less than the policy question fol- not in contains the * * * provided operations amounts language: lowing Only by rewriting named.” the terms of pay, subject Company will to the “The policy hold that insurance can this court operations not provided, limit “the trial court under had no alternative objectively de-
named above amounts judgment1’ verdict but to render comparative termined on the basis of Casualty Company. (Em for Continental severity phasis added.) named, minimum but not than the less amounts nor than the maximum phase more I come now to discuss the (Em- named.” important. page case is that At 650 of phasis added.) original opinion, the Court states: against “The him on on compara- (Special 21) Furthermore, policy list. not named operation tive with the sinus answer that these jury failed tions erations were of did obtain comparative severity with are named. finding that he However, had op- And at [*] [*] page =M> Court states: upon him within “operations” performed “The trial alternative had no court Referring again meaning under the but render verdict that an policy’s provisions, it states [Continental] per- operation any had an Respondent has and insured who waived [Street] be himself is entitled to under might formed on “ benefit claimed he have * * * issues, any right than the less the unanswered * * * provided for amounts them an- have had to have named.” swered.” answer specifically pro- 211 and the policy Issue No.
Inasmuch as a take- paid less cannot afford a basis for be thereto an insured cannot vided severity, on the basis of 1. “SPECIAL ISSUE NO. U any you found, per- preponderance have “Do find from determined, objectively dentist formed Dr. Treadwell as a the evidence ” say, “Well, equal.’ instead both judgment against Street. He would nothing technique; blue used brush Court did The Court artists the same have alternative. predominant both, although judgment, spite color in have entered a blue; lighter one while finding, artist has used a basing its scenes, has express provision quoted both are one artist outdoor many sky shown and the other above. cannot con clouds Issue No. 21 under very has theory controlling, chiefly ceivable shown few.” be be inquire cause it does not control- about “Compara- Universities offer courses lng policy says fact. determine Religions”, religions studied tive but the (which “amounts” is what issues 42 “substantially compared therein are not through sought determine, but were token, equal”. And, by op- the same ; unanswered) say pol it does not that the compared ba- erations order be icy prove holder must “ “ * * * * sis of do not have risk, substantially equal substantially equal risk, involvement time, expense physical involvement of time, expense physical affect body affect definition human [the body.” (Issue 21). human If there be two ‘comparative severity’ in Issue used 21] regardless of their nature— operations.” as one of the ‘named’ — they compared severity, can be and in compare order erroneously This to so does have court is them one holding that if “ ** * to first find holder has an are of sub- unnamed “ * * * time, prove stantially equal risk, he must sub- involvement *6 expense equal risk, stantially time, physical upon and hu- affect the involvement of expense body” man physical 21). example, us upon (Issue and For affect hu- let the body” man take policy— two named in opera- as one of the “named” This, effect, tions. pol- (1) “Appendix, of .... rewriting is removal $150.- “Nail, icy putting (2) and 00” ... a burden on the insured removal of com- policy put which him. The can be does not on These two $10.00”. policy just op- pared severity. says compare appellee The Continental the unnamed oper- Casualty Company compared eration with those listed. What is ordi- the two nary meaning “compare”? obviously is of an If one ations and felt the removal “compare” appendix as asked grades to of two stu- was about 15 times as severe certainly he dents, it does not mean that nail for it allowed $150.00 removal re- compare they appendectomy can’t them “sub- for the unless are for the and $10.00 policy A certain- stantially equal.” of the nail. holder If an asked moval artist were compare pictures painted by compare ly right differ- to should have the same to scenes, oper- prove different different unnamed having ent artists on without to canvas, say, “substantially equal” sizes of he “I can’t a named wouldn’t ation is ‘susbtantially an operation. policy says it determine do because are upon plaintiff the mouth of were not of 4: 2. NO. “SPECIAL ISSUE comparative severity with, opera- “Comparing ‘Sinus: Cut- of the tiple’, ting puncaíre, any, tion, mu into other than if policy question? by plaintiff Ur. on the 22nd listed in the Treadwell the day March, preceding Spe- “In connection with the with the 21, you insurance cial Issue No. are instructed that named which are severity’, suit, term, ‘comparative of mon- means what amount involved this you preponder- substantially equal any, risk, ey, from a if do find involvement comparable time, expense physical be of the evidence would affect ance pay body. for the defendant human and reasonable any? ‘They plaintiff comparative’, if for such were not “Answer: of, ‘They any. cents, comparative’, if Answer in dollars and “Answer:_” find. They comparative” “Answer: were not comparing (not represent as simi- paid by "COMPARE 1. To to be lar; op- unnamed to liken. 2. To examine
equating) of, pur- qualities named. Dr. Treadwell character or eration with those opr pose discovering their resemblances testimony compared the unnamed modify or differences. 3. To erations with a named dam- Gram. one, compari- degrees ages (Nos. according to the 4-8) were submitted issues ; comparative, positive, son state language based superlative of. See COM- controlling failed to on the is- forms sues, therefore, PARISON, like should have 1. To be a new trial —v.i. of, admit, worthy equal; granted or be trial court. It erred vie; comparison. when 2. To to assume it rendered for Continental equality. Casualty Company. likeness or compared anoth- “One is with policy says unnamed er when it in order set side side with named, compared tion can be those excel- show their relative value or policy says op- it will unnamed lence; formally to another it is when erations. unnamed is So an it; as, represented Pope com- as like had, supposed pay something. it is pares Vergil; com- Homer with policy says you much should determine how pares Homer to the Nile in boundless be “on the basis sever- Compare, Syn. flow of con- riches. named, ity but trast, by side in ” collate mean to set side * An than less the minimum order differ- to show likenesses and up impossi- policy cannot an insurance set Compare implies as its aim the ences. test, says amount to ble so if the showing excel- of relative values or be can be unnamed by bringing lences out characteristic comparative se- determined on the basis qualities, divergent; whether similar or verity recognition implies emphasis contrast as its aim an Casualty Company what that the amount differences; implies collate is to determined and that it can be de- *7 minute and in critical examination or- every by comparison in termined instance points agreement der to note or di- regardless of are whether n —n. as, vergence. Comparison; be- substantially equal. yond compare.” dictionary recognized giving The is Applying Webster’s definition to the meaning In The the common of words. language that unnamed are to- “comparative” de- Dictionary Winston is for in an amount determined fined as: “ * * * on the basis of named, with which are “1, comparison, pertaining or to the * * *” (emphasis supplied), it shows absolute; 2, comparing; es- act of that controlling, Issue was because 21 from, compar- by, resulting timated or says compared Webster that “One is on, ison; relative; using, or founded with another when set side side as, comparison; comparative theology; ” in order value or to show their relative comparative anatomy: excellence; formally to another when it is ” * * * represented it; poli- “Compare” as like is defined as: cy says to to be determine the amounts liken; similar; 2, “1, to refer to operations by comparing for unnamed likeness examine order to discover the unnamed ” * and unlikeness named; “with” there- fore, under Webster’s definition this means- Dictionary Collegiate New Webster’s that set an unnamed “compare” defines as:
655 jury’s answer to show under the evidence and operation in order of a named side judgment for they entered a that to Issue No. $5.00 “relative value” not to show their 1 The answer to Issue equal.” in .favor of “substantially Street. are operation had finding that an jury was a policy language definitions and the These performed. policy said to Special not a con- that Issue is show operation. The at least for an Street $5.00 jury’s that the trolling issue. The answer judgment for a verdict forms basis comparative” operations “were not $5.00, for for and does not form just mean felt as well that judg- take-nothing judgment for a basis Dr. Treadwell defendant, A ment Continental. for more severe than the named were judgment for Continental cannot be valid tion, for under the trial court’s definition based the answer to immaterial “they comparative” answer were order to find would have had to Ap- judgment of the Court Civil substantially equal. peals remanding reversing this cause to solely judgment The trial court based its sustained, the trial court must be unless we n sustain Street, as on the answer to Issue No. 21. prayer alternative Street’s Ap appellant, urged in Court of Civil $5.00, judgment statutory pen- for and the peals con Special that Issue 21 was not a alty, plus all costs. erred trolling the trial court that my opinion It that court -could this judgment rendering Continental. grant request judgment, Street’s even Appeals this The Court sustained Civil though prayer Street’s was point and remanded cause to filed in this court for the first time. How- peti court for a trial. new Continental’s opinion ever, if the point tion for writ of error contains a cannot be rendered favor of Court of Civil error Street, then the cause should be remanded holding. so It is true did not appropriate to the trial court with instruc- Ap in the trial court and the Court of Civil tions. peals pray judgment for However,' I Lewis Street that case of s did, trial, in hi motion for new contend Ass’n, Employers’ v. Texas Insurance the answer to Issue No. application. Tex. 246 S.W.2d has no “ * * * charge the Court’s does not predi- holding in the Lewis case was finding by plain- -constitute a cated on the fact thát. the had tiff is not entitled to recover sum of supported elements nec- facts all the money from *8 in- the defendant under said essary “but in the judgment, .surance for -any at facts which case bar had not found upon plaintiff by Dr. necessary Treadwell.” Cer- ‘support would all the elements tainly, judg- the trial court did not base its judgment’ for the defendant insur- a against ment Street company.” failure ance Special in- answer Issues proved he had “unnamed” Street being clusive. This a neither trial, .Casualty Company tions. findings of fact nor conclusions of law promised him for these 'its to. logical were filed. It is conclude that Casualty Company operations. Continental granted the trial court would have promised pay him minimum amount a trial, a new but for its belief that the testimony comparing if he offered no even .answer to Issue No. 21 warranted “unnamed” .of his. take-nothing judgment against Street. evi- of those named. -He offered -law, damage is- comparing
As dence a matter of whether Street is, Yet, not, have, jrayed it or sues were submitted. Court trial court erred now, empty handed. take-nothing rendering a Casualty Company. of Continental
favor for re- written on motion has Court object to did not
hearing that since Street have in- doubt would he “without favor had the is- judgment in his
sisted on favorably him.” The sue answered conclusion, support such
record does not hand, has con-
but, on the other Special Issue
tended in all courts effect controlling issue. The
was not a affirmative answer position is that an support woud not
the issue party.
either Ap- of Civil judgment of the Court affirmed; or, in the alter-
peals should
native, rendered for judgment should be Street for the costs, plus penalties, policy, in the
etc. ap- appeal attorney
No record pellant. COFFMAN, Appellant, Jerry Austin, Atty., Douglas, Leon B. State’s v. for the State. Texas, Appellee. The STATE of No. 37018. DICE, Commissioner. Appeals of Texas. of Criminal convicted, plea upon his Appellant was June jury, of the guilty and waiver of punishment and his felony theft offense of peniten- assessed at confinement years.
tiary for five the evidence of facts of No statement *9 accompanies rec- adduced exception. ord, no bills and there are court orders judgment entered punished confinement appellant be than less penitentiary a term of not An exami- years. than five nor more punish- reflects that the record nation of The sentence years. five ment assessed was