*1 S53 support In cites Hous it pleading of this contention ríes, from said appear nor does it 317, Fox, ton & Tex. notify R. 106 his C. Co. v. T. appellee failed to what fact that 693, al- 166 there cited. While S.W. and cases days 30 from employer within Therefore, medi it while seems to be well settled that accident. his leged date of consequences of testimony cal require future sufficient pleading was not good an limited reasonable showing injury must produce pellee to evidence testimony expert his medical that probabilities, given notice having cause for not alleged possible already in it is that a days 30 after his condition employer within prior injury is employer had was his existence caused showing that accident nor Thompson, be- thereof, Langenfelder matters knowledge admissible. v. actual 963; 491, A.L.R. 502, under oath. 179 20 136 ing when not denied Md. A.2d admitted Tay 8307, v. 4a, Stat- St. Louis & Southwestern Co. Civil R. Article Sec. Vernon’s 714; lor, utes; Tex.Civ.App. 93, Pro- 58 123 S.W. Rules of Civil Texas 139, Grenig, Tex. Galveston H. & R. However, fact that S. A. Co. v. cedure. in view the 135; became 142 Mutu Civ.App., the evidence that National showed S.W. following Lowery, Civ.App., during night his al 135 unconscious Tex. Cas. injury in that condition for 148 and remained S.W.2d affirmed Tex. Furthermore, substantially days, several six it was months S.W.2d 1089. injury testimony he able the in the rec sustained his otherwise room, during objection to leave the which time ord without and therefore if write, ruling was not able to and the medical tes- the trial court error it was desperately timony showing points that he was These harmless. are overruled. days pneumonia, sick for with acute presents record as before us no er- developed lung heart abscess and cause, requiring ror a reversal complications, and that it some four the judgment therefore of the trial court is five months before was able to affirmed. business, testimony attend to and other period of time during the effect bad, his mind was we only that such evidence was not sufficient sup- to raise the issue was sufficient to port jury's finding be- mentally incapacitat- physically came give injury ed to notice his Texas Inc., Foundries, physical and and that such al. PIEDMONT FIRE INS. CO. et v. incapacity give mental continued notice DUNLAP. until he beginning time of its gave through attorney 11761. Texas No. notice his Foundries, Inc., physical and that his Appeals of of Civil Texas. Galveston. Court incapacity good mental cause his Foundries, give failure to notice to Texas Feb. 1946. given Inc. until his notice thereof was Rehearing Denied attorney. through jury Bass’ also his, found that at the time Bass sustained injury and of no he believed it to be trivial consequence; that he held such belief un- physically mentally in- til he became capacitated injury notice of Foundries, therefore, We, Inc. appellant’s point overrule No. appellant’s points 4th By 5th complains action of the trial court objection testimony overruling Dr. Barham Sweatland and Dr. with opinions in connection reference to breathing steel dust effect that upon appellee, contending that such than opinions more amounted mere and, therefore, possibilities not admissible. *2 etc., claim, prejudice should be without the rights Thereafter, parties." on 29, 1944, appellants’ adjuster took a June statement at which time pellee adjuster told the wanted to that he get the matter settled so could leave and he get adjuster into him The told service. power brother, a attorney to and he Appellee wouldn’t have remain. power gave then a attorney broth- joined er and Marine, and Merchant went England and France. But re- turned in November and remained at Orange, Texas, and vicinity for about months,
two position and then took a in a powder factory somewhere in the Pacific area. On August 14, 1944, pursuant rights respective policies, appel- addressed, lants counsel, through their demand for a sworn examination to lee, Texas, at his Orange, The address.
pertinent provisions policies pro- vide : insured, "The required often as as shall ** *, and submit by person oath any by named company, this ” * * * and subscribe same. Company “This shall not be held any waived or condition of this Bryan Bryan, Bryan Y. Austin and policy, any or by any forfeiture thereof Houston, appellants. all requirement, act, or proceeding part on its Johnson, Jr., Marsene Markwell & appraisal relative any examina- Galveston, appellee. Stubbs, * * all provided tion herein “No suit or on action policy for the recovery any claim shall CODY, be sustainable Justice. equity court law or until Appellee plaintiff brought sepa- suit full by the insured with all the- rately compan- fire against insurance three ** *” requirements. foregoing ies, respective poli- which had issued their covering property. to him the same The cies containing The letter aforesaid demand fire out which suits arose occurred opened by received and appellee’s policies on Each of the agent fact, attorney aforesaid his. June policy. Fire Standard Insurance 21,1944, August brother. And on placed represented appellee was each appellee’s claim in the hands of an attor- counsel, appellants. ney by the and so Orange attention, who wrote to same, petition in case were the each appellants to ascertain if were denying- the answers. After so of liability. put the cases were consolida- Thereafter these suits were against filed complaint Appellants’ appeal chief ted. February 1945. And on-. respec- in overruling their is of the action 6, 1945, appellants March answered with a applications for a tive first denial, general specially and denied that the permit refusing to also respective policies were in effect at the- amended, or permitting trial answers to fire, alleged time of the the same had= amendments. been voided the acts and conduct of facts, occurred, On the date fire alleged further that the June appellee signed fully non-waiver and -pled circumstances in common form the effect an amended answer which would be season- anything about ably done investigating the filed. answers, appel- States, appellants’ returned to filing At time of United counsel, notified, attorney had not been so lants’ counsel wrote to deposition. without could and asked to take oral n S, 1945, go counsel filed to trial. *3 special supplemental petitions ex- which in July 10, appellants’ On the wrote court to allega- ceptions general at were levelled the had that, July counsel letter of 9 after the April 7, ap- on in the answers. And tions received, Decker, appellee’s been Mr. of pellee’s appellants’ coun- counsel to wrote counsel, had informed the court that ap- taking request the for referring sel to July would insist of the cases on on a trial appellants’ pellee’s deposition, and notified 16, 1945, they for trial. the were set date sea, was at appellee counsel that the but The court wrote that the matter further expected in the was in Galveston be not, in July in stated the letter of did future, appellants’ near and stated that for legal grounds his constitute the exact date counsel would of be notified continuance, Rule and called attention when was ascertained. 11, Texas Rules Procedure. of Civil Thereafter, 8, 1945, the on court’s trial, Upon day June were set the the cases for regularly setting for of (cid:127)docket was called July appellee ready in one announced pres- not appellants’ and counsel was cases of the But announced cases. requested Appellee’s the counsel that ent. they ready, they filed were not and each trial, set and were three cases be application the a first July prac- invariable set 16. It the was grounds application being in sub- such of the court to tell the counsel who tice : stance present, when a case was set for were appellee brought upon 1. That had notify counsel of opposing absent such insurance; Policy Standard setting. The court confident was was request that a examina- for sworn written appellee’s occasion, and coun- done on this appellee August been made had on practice deny was fol- did not such sel that 14, 1944, ignored evaded and had been and court on this occasion. But lowed the by appellee, appellee and that had volunta- given appel- notification was such rily himself from the United absented counsel, know of not such lants’ and he did shortly fire, States and has not the setting. See Texas Rules of Civ- said been available since date. procedure. il ap- 2. That demand had been made on Thereafter, 30, 1945, appellee’s on June pellee’s deposition, counsel for exceptions presented special counsel his agreed ap- notify said had and counsel cases, the several appellants’ in answers return, pellants of the date exceptions sustained. On the and the shortly expected, the which was then when day appellants’ the court wrote to exact date was known. notifying in him of the Houston counsel appellants’ counsel, Y. That Austin action, granted and that leave was court’s Bryan, Jr., appellee’s counsel, had seen Mr. amend, in said sides to and letter to both Galveston, 7, 1945, Decker, in since the had been on cases set confirmed deposition requested had and the July 16, non-jury and that docket for the lee, said and told had the Decker it had been in- amended which the answers ready pellants would not be for trial until filed, be be dicated were desired to should deposition could be had. That seasonably filed. agreed make avail- said Decker letter was received at the office of Said setting able cases would attorneys, Bryan Bryan, appellants’ on requested, Bryan had be and told the said At that time neither the attor- July 1. need not concerned over in neys firm was Houston. Artstin deposition a trial until matter of' attorney who was Bryan, handling Y. taken. cases, Washington business. appellants’ That it is vital to defense 9, 1945, Bryan July Mr. Chilton wrote appellee present person, subject to have return time had to the That such examina- to cross-examination. getting in contact with consumed been necessary appellee appellants’ handling cases, tion of who was brother defense, testimony and could not be from learned his brother that had and he any other source. That the mat- with had from opposing there required appellee let ters to taken; testify if as to sole and that unconditional 856 property; ownership that Co. the insured v. Brooks, Tex.Civ.App. 231, loss, proof did file a S.W. writ refused.” .plaintiff (appel- “full cross-examination of being in substantial fire, lee) the names origin as to Rule, prop being property, persons in and about the erly verified, and controverted, not being same, prior fire the activities of accepted must be as true. Employ United question.” Casualty ers McCloud, supra. responsible 5. That are not applications state, that, among things, other absenting himself frequent occasions, Bryan Austin Y. away remaining jurisdiction, and at had seen Mr. Decker in Galveston since time set for trial. April 7, 1945, requested depo *4 had. appellee, sition of and had informed him every appellants 6. That have shown appellants ready would not be for deposition and diligence secure the to deposition trial had, until the be could sworn examination of but that, “In each of Mr. conversations subpoena jurisdic- of the he has been out Decker agreed supply to avail make court at all times. of the Dunlap any able Mr. before trial setting ready appellants That to go were requested, be would and on each such oc appellee any pre- trial time that would at casions, Mr. Decker stated that client deposition sent for and be himself oral Marine, inwas the Merchant but was ex present at trial. the pected future, in Galveston in the near application The court overruled the there worry need be no or concern continuance, apparently ground that on the deposi the matter of the trial until the Procedure, 11, Rule Texas Rules of Civil tion could had.” provides: That ruled the situation. Rule 11, agreement Absent Rule such attorneys par- agreement between or “No certainly sufficient to excuse pending will be en- touching ties prescribed from taking the statutory steps writing, signed in forced it be unless to take deposition. Employers record, part papers as of filed with the the Casualty McCloud, supra. Co. v. the And open in en- made court and unless it be purpose of the not to seek record.” tered of agreemant enforce the as a substitute by applica- But were not resorting statutory steps to take seeking tions for have the continuance appellee’s deposition, postpone but to the agreement enforce as to the tak- the appellants, trial because in relying on such deposition appellee of before ing of the agreement, prepared not were to go to seeking to have the were the And, stated, trial. granting the of the postponed. granting the of the And trial application would effect enforce not an of postponement would not have the effect agreement, ment of the but would leave merely it would enforcing agreement, the parties they the prior where were the parties where leave were the agreement. agreement the was made. obligation appellee The to submit to- an examination oath did have applications in substantial not its The 'genesis any agreement in made between is old which pendente poli- lite. 2168, unchanged. They ap The were first insurance Art. cies, verified, plications, properly not the Texas Standard Insur- and were form, policy Employers ance conferred the contract In United Cas controverted. right upon insurer, upon demand, McCloud, Tex.Civ.App., the ualty to- S. insurer examined under oath. this court held: the “While W.2d made, refusing The demand was ordinarily granting or of a later the vicinity Orange rests within the remained the two- for continuance motion provision court, the the months. Under trial ex sound discretion always right submit to an examina- discretion is ercise of this sound provision review, particularly tion under oath. Such seems subject when the ap designed by the Rule) with reference insurer contract a (now statute been, right given by right the nature of continuance has in ev the
plications deposition» litigant complied with, which the way, case statute to to take ery there party. adverse Rules of Civil presumption that court did not of the See the is no Procedure, voluntary rules discretion. Gulf C. S. F. R. abuse falls depositions plea urged written could have oral or in abatement giving the meaning language judicial secured a thereon. determination within under simplest examination But provision procedure get “Submit towas obligation pellee’s Upon Certainly deposition the contract by oath.” requesting it. submit provision the insured question right oath, satisfied first breach of continuance for the submitting voluntarily to by agreement insured of waiver question we think contem- deposition talcing of the mode not in the case. plated statute. The for re- We overrule motion his client Mr. Decker that hearing. place prior to did not should be taken any trial Overruled. did not obligation his client that course, changed already upon him. Of rest the form. pol- parties by icy, agreed that evidence which
lants got examining have said in oath material. What we *5 provision under- is to be reference to the present here limited to facts stood as BAKER et al. BAKER al. v. et think court erred and discussed. We No. 2528. appellants’ applications for refusing first Appeals Court of Civil Eastland. continuance. Texas. case Because this must reversed Feb. refusing of the court error Rehearing April 12, Denied lants’ first for a points urged by appellants other to be allow the answers court’s refusal amendments, etc., amended, to allow trial go likely the case. As will not out of upon purpose arise another trial discussing cause served in them. The is remanded be tried as consolidated case.
Reversed and remanded.
Rehearing.
Motion for
opinion
was said in our former
What
right
under
relative to
policies
require appel-
an examination trader oath
lee
submit to
right
on the
bearing
was limited to
upon a first
to a continuance
plication.
suits, appellants
filing
Prior to the
formal
demand for
made
oath,
was not re-
filing appellants’
After such
counsel
fused.
requested
without
stat-
applying
process. As
necessity
original
ed
our
deposi-
by appellee’s
counsel to
facts,
equiva-
was,
legal
under
comply
de-
agreeing
with such
lent of
refused
Had
mand.
request
appellants’
grottnd
right
waiver
acts constituted
oath,