*1 831 quality; indiscriminately of whatever some) small; none; great or no matter how * * * or unlim- 3. That is unmeasured * * *” well ited; Thus the entertained reasoned that the court
have injury was
some doubt to whether accident, but had in the
sustained sick- but that either
such doubt from the acci- some kind resulted
ness of in 1960 which was involved
dents in she
and 1961. instruction
Both erroneous con- weight
comment quoted were instruction
tained probably
reasonably to cause calculated improper judg- the rendition
did cause meaning of Rule Texas
ment within of Civil
Rules Procedure. of the trial
versed and remanded for new trial.
George McCARDELL, Appellant, ACCIDENT INDEMNITY
HARTFORD & COMPANY, Appellee.
No. 6519. Appeals of Civil
Court Texas.
Beaumont.
April 25, 1962.
Rehearing May 16, Denied *2 Phelps, Houston, appellant. S.
Jim Wheat, Ha- Liberty, M. Thomas A. Chas. den, Crooker, Freeman, Fulbright, Bates Houston, Jaworski, appellee. & STEPHENSON, Justice. rehearing, On motion our former IS, opinion February filed 1962 is with- following there- drawn and the substituted for.
Appellant brought this suit Compensation seeking Workmen’s Act disability permanent award for total and by being by reason of by appel- The kicked mule. found period totally incapacitated for a lant weeks, appellee inasmuch had five as amount, judgment paid entered appellant nothing. take the trial court inca- The found also pacity due to some other body, or a or condition his disease of these. combination complains Appellant first grant his motion for new court’s refusal upon newly discovered evidence. trial based appellant to whether myelo- ruptured and as to-whether disc disc, ruptured gram demonstrated conflicting. Four doctors called sharply opinion appel- testified in their appellant disc, ruptured and four doctors had a lant opinion appellee testified in their called hearing of the motion not. On did trial, one the same doctors new performed testified he called immediately back appellant’s surgery §33 leged herein the basis trial and found and made after conclusion ruptured disc. suit.” Appellant plead- specially excepted to this *3 mat The rule in this reference to ing because it and asked general, was too refusing is: new trial for “Granting ter or specifical- appellee plead required be to newly by our discovered is vested evidence special ly. this The trial court overruled the trial law sound discretion of exception. exception We think this should court and is abused unless such discretion of have been are aware sustained. We well appellate such act court not revise will ruling rule in of a trial court errors in such The court’s discretion [citation]. exceptions may prej- on pleadings to diligence get matters extends to used to they grounds udicial and for where reversal trial.” before court at the improper judg- the rendition cause of an Hayman Dowda, Tex.Civ.App., v. 233 S.W. rights of the materially ment and affect the 466. not 2d We hold the trial court did complaining pleadings party. ruling A abuse in case. The rea his discretion prejudicial not is or if the result reversible by appellant having son offered not same, would have been had the error operation performed of the trial before been committed. feel the of We series cause, by suggestion was the the attor by began errors made ney appellant charity hospital that the exception. overruling special of If accept patient would not aas required prop- the defendant had to been pending. while his suit was erly plead controversy case, the lines of its injured July 18, 1957, some three parties between the would have been clear- years and of nine before the trial months drawn, ly greatly and the trial of the case this cause. These do not demon facts simplified. The which would have otherwise, diligence. strate For us to hold been special admissible issues to causes, open all similar the door in submitted to the would have been made compensation a to wait to if claimant see a clear to all A defendant in concerned. findings of a adverse then may a denial case file operation submitting pro in order to only, and the has the burden of new cure evidence for motion for a new proving pro- question the accident in is procedure trial. If such a receives the ducing incapacity. plaintiff’s of cause approval court, of defendant a not be In such defendant could of- instance the findings jury, satisfied with of a prove fer evidence in- permitted should be a claimant furnish capacity inju- caused operation in order secure new evi diseases, dr other ries or combination of dence for a motion new trial. This two, though even issue defensive would result in an intolerable situation. jury. could be submitted The de- plead fendant could choose his affirma- Paragraph appellee’s of IV Sec tive defenses. In such a defendant Original ond Amended Answer was as fol required plead defenses, is its in the face lows : exception, with the degree same particularity certainty aas “Answering further, if necessary, pleading suggest his cause of action. We says Defendant that Plaintiff’s disabili- seeking if the defendant is to secure ty incapacity, or any, if was caused Ann.Civ.St, benefit of Vernon’s sec. disease, health, some condition of some 12c of Art. 8306 in reference to a in- physical defect some and/or plead specifically it should jury, the date other than that made the basis of this prior injury, suit, the nature of or some other cause or combina- prior injury or its tion of in affect con- causes unrelated whole or whether in incapacity, part present alleged injury to the or or to the disease al- tributed incapacity. motion insofar or as it related to present the sole cause of such subsequent claims, payments, plead as settlement or seeking to If the defendant defense, plaintiff’s incapacity solely and overruled the it re- motion insofar as they lated injury, injuries a dis- to other the effect different two, ease, upon then have or a combination capacity. special exception, Brinkley Liberty in the defend- Mutual Ins. face v. Co., 423; City plead Tex.Civ.App., nature ant must the date and the 331 S.W.2d Chandler, injury, disease. Wichita Falls or the nature of such purpose of pleading 348 S.W.2d Such would serve the par- as to the putting on notice evi The trial the defend- court admitted
ticular or disease that *4 dence, plain defense, objections and over the rely upon made ant intended to attorney, petitions plain tiff’s plaintiff opportunity to meet filed this would have cases, tiff in separate trial. three the and different during the course of these issues affidavits, re- for not be notices claims argue To that a defendant should of and quired another plead specifically as to filed in different cases to could the disease, plaintiff Industrial over jury or a because the Accident Board. The already ruling of “surprised” objections would each consti not be as he of these disease, tuted injury or error. There is a in this state know of the other rule permitting pleadings logical than a defendant in other actions which con more argue party’s tain in an case to statements inconsistent with a automobile collision present position than required plead more should not be receivable as admis contributory because negligence sions. This rule is stated in Mc 2 of Vol. his Ray of Cormick plaintiff already be aware and the would page Evidence at 35 any or and stop, his horn cases or sound are cited. of However, failure to none part. these are compensation cases, on his cited specific act or omission in and
each instance there
change
direct
of
overruled,
exception
position.
After his
In
the instant case
is noth
there
plaintiff in the
urged
the
case before
then
previous
us
inconsistent with a
claim
motion-in-limine,
permanent
suppress any
total and
evi
incapacity, and
awith
prior
present
injuries
dence as to two
and one
perma
sub
claim
different
for total and
any claims,
sequent injury,
incapacity.
or to
nent
settlement
The courts of this state
payment
or
made to
on account of
have held that the fact a
has re
claimant
injuries
following
for the
reasons:
covered an award
permanent
for total and
previous
subsequent
incapacity
injuries
preclude
the
and
does
recovery
not
permanent
bearing upon
incapacity
and
had no
the case
total and
claims
in a sub
completely
sequent claim
at bar and were
irrelevant and
and suit. See Traders &
immaterial;
Blancett,
injuries
that such other
were General Ins.
Co.
parts
plaintiff’s body;
of
to other dismissed. The de injuries permitted as to other and claims fendant was evidence of rules attempt preju prove in an evidence to offered re prior injuries jury against in ceived pri- whether such dice injuries plain to believe were the sole would ex cause of duce disability incapacity, or feign symptoms pres his contributed aggerate tiff’s to his incapacity 8306, injuries; 12c, and would violate under Art. the rule of ent sec. of admissibility of this inter alias acta. The trial but the evidence res court does law proof prior of a overruling an order include claim through entered mo things, pleading, granted all notice of or claim in tion defend right compensation. danger to introduce We believe ant evidence toas prior claims, injuries and in three claims. We think admission set payments prejudicing the trial court should have sustained claim tlement probative litigant finding incapacity of a value outweighs the of the being study by prior disease, injury, of such evidence. From a aor com- bination, facts, entire statement of we conclude demonstrates to this court evi- impressed by testimony; its defendant did not introduce thus prior injuries causing dence as to claims and the errors of court purpose taking advantage harmful. de- benefits of The Art. sec. 12c. As this being case is re- reversed and testimony at- fendant offered no medical manded trial, for another find we do not tempting between any show connection necessary it pass ques- upon the other injuries tions raised appellant. fact, wit- condition. In medical one two nesses called defendant testified of the trial injuries did not contribute versed and the cause is remanded for trial. plaintiff’s present From a care- condition. ful reading of the medical HIGHTOWER, (dissent- Chief Justice it is that the defendant’s obvious *5 ing). theory suffering is that is disability, pres- rather than that I agree cannot with the result incapacity solely by, ent or con- conclusions reached majority. inju- prior subsequent
tributed Appellant’s ries. No were issues submitted motion suppress was a 8306, inquiring blanket Art. sec. 12c motion. In general a it fashion prior injury commingled whether contributed to matters admissible in case plaintiff’s present incapacity nature, prior the ex- injuries, and such as objectionable tent such contribution. conclude We matters such prior claims settlements, requested that evidence was offered and the court to purpose showing that exclude them opin- bloc’. I am of en had compensation, made other claims for ion that governs same rule in this and filed applied other situation as suits. that where a
objection evidence, is made to part which part admissible and of which In is not. hold the We error of the trial court objection instance the properly admitting prior evidence as to the 172, overruled. 41-B (Rev.), p. Tex.Jur. subsequent claims and suits in was not Moreover, sec. 146. I do not believe that vited, attorney waived justified in the circum- asking prior about a assuming stances in court, that after claim, back and settlement of the motion, overruling such would aof cer- already trial court because the denied tainty permit the introduction of those suppress motion-in-limine to matters which improper. As in any testimony in prior reference to this ruling exceptions, on a trial settlement, claim and and had indicated judge may and often change does his rul- by his action that this evidence would progress in the of the trial. Notwith- It is a admissible. matter of common standing elementary rules, these appel- knowledge that if evidence of a claim in the stages lant earlier of the trial was injected trial, and settlement is to be into a inject first to evidence of prior claims party’s from standpoint it is better that settlements, to which he was party. information out on came direct ex deliberately He did this direct examina- amination rather than cross-examination. tion, appellee’s objections, over by stating jury’s In view of answer he had settled is- suit for inju- sues, is, finding $750, total ries his back thus waiving ob- period to, capacity weeks, for a jection proof inviting five of other City had made. and settlements claims Dillard,
of Gladewater v. cited. and authorities
312 S.W.2d ma- in the Brinkley cited
facts in the those opinion, unrelated
jority so no discus- merit as to
in the case
sion. if, indeed, were there
I feel they trial committed
errors cause such as were calculated
were not judgment. improper of an rendition there opinion
Being of the further ju- conflict
exists no irreconcilable submitted, I
ry’s to the issues answers trial judgment of affirm the
court. *6 ux., Appellants, et BANKS
W. W. GUMM, J. C. Gumm Tile
J. C. d/b/a Company, Appellee.
No. 4013. Appeals of Texas. of Civil
Court
Waco. 27, 1962.
Sept. appellants. Fichtner, Dallas, Jay S. Rehearing Oct. Denied Hoffman, Dallas, ap- Jr., Leonard E. pellee.
WILSON, Justice. Appellee Gumm, contractor, a tile against Mr. and Mrs. covered of material labor Banks the value improvements to their dwell- furnished Findings and conclusions were filed. ing. recovery Appellants urge no could improvements had because the were to There is pleading homestead. their raising question. only property. If they occupied the it was