Shell Oil Co. v. Jackson County

o’clock, jury. This, opinion quoted in the injury stated occurred ness from, indirectly “doing digging ditch appellant was m., while a. policy pro- plainly law Revised of the underground conduit. for Statutes, 5, 8309, per force hibits.” Section Art. appellee’s court the trial of which opiinon presented In our no error is wit- of the object the cross-examination points. However, these should we accidents reports of “The follows: ness as holding, mistaken in the still above by sub- law to made required this think the error was rendered harmless admissions be deemed as scribers shall not subsequent cross-examination wit or against association Cowley. ness After had re before any proceedings subscriber turned and after had refreshed witness case in a contested elsewhere or board memory by seeing report his in his any therein or out facts set jury, testified as follows: sought be contradicted them one of “Q. really You what remember hour or subscriber.” by the association day you Mr. the shovel han- Yates told East- by the construed statute This dle hit him? IA. don’t think so. Liberty Mu Appeals in Civil Court land “Q. really You don’t he told remember Tex.Civ.App., Boggs, v.Co. tual Insurance you it two o’clock in the afternoon. there stated: 66 S.W.2d say A. I wouldn’t about that. think, doubt, we is no “There “Q. say You it was wouldn’t ten appellees’ counsel permitting court erred morning o’clock in eleven that he told manager Bond, former the witness to have you it was? A. No.” Service, who Curtis-Wright Flying testimony clearly wit- This nullified the report the accident to made previous ness’ on direct exam- statements Board, identify his an Accident Industrial place ination time al- report, questions in to the made swers injury. leged him thereto, ask and then signature his them One true. answers Finding if judg- in the error record an em Boggs implied that clearly things in all ment is affirmed. The law issue in the case. ployee, a vital admissi reports provides that are making R.S. parties them. against ble 5; Casualty Georgia Co. Art. § 579; Tex.Civ.App., 243 S.W. Darnell, v. Casualty Co. Crowe, v. Tex.Civ. Petroleum 917; Union In Norwich App., 16 S.W.2d Tex.Civ.App., Rollins, demnity v. Co. 699; Emp. Texas Ins. Assn. v. S.W.2d Inc., CO., et SHELL OIL al. v. JACKSON 899; Tex.Civ.App., Em 29 S.W.2d Lynch, et COUNTY al. Watson, Casualty Tex.Civ. ployers’ Co. No. pro think 32 S.W.2d We App., doing, complained of was but in ceeding Appeals of of Civil Texas. Galveston. policy the law directly, Dec. prohibits.” plainly Rehearing On Jan. appellant by cross-examina- In Cowley sought witness tion of ques- certain identify his answers him report him In- to the made tions Board, one of which Accident dustrial that “appellant received an at 11 As heretofore A.M.” stated the is- o’clock appellant any received in- whether sue working telephone for the com- jury while hotly a vital contested one. pany permitted cross-examination Had the report contained information appellant’s receiving an in- respect working telephone com- for the jury while placed would have been pany $7,550. That sum of necessary cost reasonable and $472, making plaintiff the total sustained by (cid:127) Kennedy Moore, Blades, Chiles, & $8,022, plaintiff for which sum sum Chiles, Lesher, Jr., and A. C. Knight, C.M. prayed judgment. to recover Houston, for appellants. all of Defendants, its Company Shell Vance, Cobb, S. G. Cullen M. L. driver, Taft, jointly, urging: answered Edna, appellees. for Sample, all denial, abatement, plea general in A a plaintiff’s contributory un- negligence, and CODY, avoidable accident. Justice. damages result- At the conclusion of evidence defend- is an action This loaded negligence driving urged a in a an instructed ing ants motion for from 35,000 verdict, a pounds, upon refused, truck, weighing was which River crossing the in nineteen jury Navidad submitted to the bridge was Jack- County, resulting breaking special Upon jury’s issues. verdict son brought was plaintiff The action court rendered bridge two. County Judge $7,325, County against defendants the sum of Jackson County, against Shell legal January 1945. on interest from behalf Jackson truck, Inc., Company, the owner Oil points In view of the which defend- on Taft, employee, E. R. against its necessary predicate appeal their it is ants County truck. of said driver Jackson following out set the substance plaintiff, hereafter named a was also special issues, answered: refer to plaintiff Coun- use Jackson approached When 5. the driver ty. northerly there was bridge its side from alleged in substance: Plaintiff posted northerly sign at or near its end a September Shell That on limiting load to carried over moving tons, fleet of trucks from Company bridge was six to a maximum of Community in Coun- intelligible sign the Cordele to users Jackson City public toward the ty road over immediately prior The 7. driver southerly Edna, direction which is in bridge, the use of ordi- going on Community. That the Cordele from care, nary have should known safely trans- that could maximum load sign bridge to a limited the use of the bridge been fixed said had ported across of six tons. maximum load pounds), gross weight (12,000 at ton six bridge immediately That prior notice limit proper of said load and that September on breaking did duly posted. That truck had have market value. one fleet by Taft was of aforesaid driven im- bridge 12. The had market value trucks, or that Taft saw mediately broke. after it notice the load that limiting have seen said 13. Such market was $375. value transported bridge safely over the That Taft drove the gross bridge tons. The actual im- had value six bridge, mediately and the excessive upon before it broken. truck down, bridge com- broke weight value was the 15. Such actual sum bridge, destroyed value as pletely $7,550. build necessary rendering bridge 16—A. That no actual said place bridge bridge de- a new immediately after was broken. stroyed, and also to build a reasonably necessary to con- public the needs of the to serve the site of temporary bridge struct a near permanent bridge the new the time during the old constructed. tempo- The reasonable cost of such immediately That rary was $150. $8,000 thereto, value of had a (cid:127) knew, the driver also found that injury its value was result of said and as he drove the truck on That reasonable and reduced $250. that it was not safe do so. necessary building by plaintiff recovered The amount permanent in addition to above found sums adding salvaged which was the arrived material $150, $7,770, $7,550 making constructing former said of used therefrom, sum Legislature the above found has authorized deducting indicated, county is, precinct, by any Such result as above commissioners $375. $7,325. Revised Civil Statute Art. rules specified, therein forbid or restrict appeal predicate The defendants their highways, them, use of portions 1-7, 7-11, 12- points points. But when, inclusive bridges, other lb, 22, 23-24, pre- 25-30, 31-36 are things, bridge may be found groups points. sented rules, come unsafe. Under several complained 1-7 of the refusal Points years ago, the per limit which load verdict; the motion instructed transported mitted to be across the com- complained also there was question 12,000 was limited to six tons — petent support jury’s ver- evidence to pounds. Notice of such maximum 15, dict special on issue No. that such and limit posted the near each end of insufficient; no also that bridge, on right the a side thereof to driver by the proper lawful measure was made out bridge. the re approaching The rules competent damages evidence, appellees’ — quire that posted such notices be toas so Also, statutory the being under Art. 6716. enable drivers to make to detours avoid requested in give refusing erred to the or portion closed of the restricted of the damages”; definition “actual also highway only remedy affected. the But competent to sus- evidence was insufficient given public by any the rules is that said 12-15; special tain the answers issues to aggrieved, complain one feeling may to that the is excessive. also county judge the and writing, seek complained 8-11 Points the admission of revocation or modification the order. of by of evidence certain witnesses. Points county judge’s on com action such complained 12-16 evi- admission of plaint provision, is final. Such as we con dence, special of of the submission is- and it, applies anyone strue might to who feel 17 and 18. sues aggrieved that the notice of the load complained Points 17-20 of of admission limit for the bridge posted not at such temporary bridge; to relative the testimony distance from the as to enable a judgment based on said evidence. of detour, driver to take some other road. any There complaint is evidence that 21 22 complain of Points refusal was ever made of the location of no specially requested of instructions. tices of bridge. the load limitation 23 complain 24 Points of submission provides, Section 3 of Art. 6716 said special 4, upon ground issues 1— things, other that the owner plaintiffs’ rights that statutory, are any driving driver of vehicle over 6716, findings Art. that not are public limited) (having shall by the evidence. sustained severally be jointly liable for “all dam- special complain 25-30 issues Points * * * ages may which said 2, 3, 4. of negligent driving, sustain the result as complain special operating, 30-36 moving” Points issues such vehicle. is It 5-9; failure submit certain provided further that the amount such requested specially damages instructions. may county be for the recovered action-by county judge. every At member of common law use, express It will right by noted public has reason damages care, terms the statute are and with which public able due manner in such roads, public recoverable action is amount 'bridges. inclusive of And damages by which is sustained are now common means of motor trucks and, consequential The statute not make transportation except where size and A damages of such has re recoverable. similar Kansas character vehicles not been by legislature, Supreme their statute construed stricted use court,said: Kansas, fully which public roads is Court of “In authorized. Sum Co., plaintiff’s County damages v. is ner Trans. 141 cluded claim Interurban * * * 493, expense 213 Tenn. S.W. 412. Public roads in maintain an item subject are two miles while the new ing State and detour of belong control, legislative may which control constructed. But recovery damage delegated to local authorities. statute West v. allow a City Waco, ‘damage any 294 Tex. S.W. so caused itself— may be recovered’ such structures Nothing under guide at the language statute. some arrive consequential damages statute is recoverable old as. Highway destroyed v. case it as damages.” Commission to have been State found Co., Liability being re capable Ins. 146 a American Mutual not Supreme Highland stored. E. & W. Kan. And v. Houston 70 P.2d Co., Tex.Civ.App., Arkansas R. like T. Arkansas S.W. Court of said agree the meas- As cir stated cause: “Facts and “We do statute: of re- the cost cumstances as to 'build damages the costs new would ure of appellees destroyed, like ing one character placing this the and the damage extent old build actual be liable may ing Arkan- age be.” reason bridge, whatever deteriorated Mode, use, plaintiff; testified to and from Highway Commission State sas these the jury fairly 1S7 S.W.2d determined 203 Ark. loss, the extent of intrinsic ab his plaintiff’s us is clear sence of market value. That measure drawn, theory here on pleading damages adopted in each is limited recovery nearly compensate will for the most damages were sustained sustained, and, loss existence of theory plaintiff was bridge, but theOn a market before and after loss is it of the the cost to recover entitled to shown, by the given measure the court the plus cost to it of bridge, the * * * proper the was one [Pacific] Plaintiff, de that alleging after bridge. Express Ass’n], Co. v. Lasker [Real-Estate knowingly and negligently, had fendants 81 Tex. 16 S.W. 792.” bridge, destroyed bridge, as a the wilfully damages in the sum a recover structure is sought to a new of Whether character, it the new like the cost of with the one that was de $8,022, being of temporary stroyed, jury the purpose to it of the plus enabling cost of bridge, for a loss, the new of at the extent of intrinsic bridge. The arrive cost salvaged necessarily material of the is exclusive addressed the somid dis bridge, new, judge. in the of bridge the trial the instant and used cretion In from old temporary case, of the $7,550. similarity bridge cost of The new was $472; these alleged bridge great, appears and was not as bridge was the old $8,022, by to the these which are amount' sum from fendants, facts de two sums stated by plaintiff, damages. challenge, without as to be undis for which was sued puted. defendants knew that alleged Plaintiff required a to build new plaintiff would bridge The old structure was of steel temporary bridge during the bridge, and a flooring, con- wooden and on four rested they bridge, new such when construction of pillars, crete two on each the river. side bridge. destroyed the old superstructure. It had It was com- a alleged pleted August, thirty-three years It true that $2,890; before bridge immediately injured. old before it was It had of the cost value $8,000, immediately twice, and injured painted was been flooring its had was it injured al- replaced was was Such been several times. It had a load $250. after it support 40,000 a capacity pounds completed, doubt sufficient when legation is no damages bridge forty to the expectancy years. old and a life then of out, $7,750. But, pointed as years ten it During past in the sum of been sub- had by the jected action as disclosed theory a heavier than farm-to-market petition plain- traffic, was of the it allegations as served traffic Field, cost fifty to recover entitled the Cordele Oil wells was tiff had tempo- and the therein. new drilled It was width. county feet in tempo- the cost Since rary bridge. The bridge new was at the same site as consequential damages, was rary bridge composi- It had in its more steel the old. all. place this case at Such no it had tion was than two old feet damages, and recoverable as cost was not wider, superstructure. had no It had evidence for basis in the form it 80,000 pounds,—twice a capacity load damages by sustained arriving at had, .originally what the one old also’ bridge. old expectancy years a life of 40 had completed. cost, only evi Its exclusive of the basis steel bridge salvaged which was bridge cost new from the to the old as dence (and good the steel that in order to furnish all was might admissible was new), bridge was bridge restored, old was used could have been as well as $7,550. it had destroyed as it capable restored, If was comparable bridges The two measure of damages be the traffic, respect: took Each care of reasonable cost of placements, it repairing re indispensable. bridge such at site if the bridge as restored ex- bridge The old tent deteriorated to less, would have been worth that lessened it action de- official damages would also constitute sus unsafe, in- years some before clared jury, tained the bridge. Chicago See R. &I. 12,000 than of more Zumwalt, G. R. Co. v. Tex.Civ.App., 239 S. pounds. county officials testi- Three W. 912. The ap measure of to be opinion the substance their that in fied in plied in an action for an just be- bridge value of ’the old intrinsic public bridge stands in a class injured fore it was the same as that of itself. It is particular built to fit site. bridge. They were new Practically speaking it can be sold contractors, engineers or bridge salvage into converting material. experience County had had Jackson The value the real estate to which a commissioners, county comparable or other public bridge attached, after evidence, experience. As we read their damaged, has -been obviously cannot be they they give on which formed basis used as basis for determination dam opinion that the neces- old ages. would, course, simple be a needs, sary public served bridge thing engineer determine the new did no more. present day cost erecting found the actual value injured destroyed, has been $7,550 just before it by figuring according obsolescence to. —the cost accepted methods or standards to determine It is capacity obvious that the the value time it was bridge, service of the new life both toas injured. But that is not the of means limit, expectancy and' is so much arriving at the value of the bridge at old capacity greater than the for service of destroyed. the time it was The of measure bridge, opinion the old that that the an damages to such when it is com bridge value of the at the intrinsic time old pletely destroyed, is the actual of the value practically injury its was identical of bridge the time destroyed, at it was less bridge clearly of new is the cost with wrong, the market value of material which it and has such cir been held in composed it was believe such material —we cumstances court set aside ordinarily can be shown have to market verdict, though on evi even based some value, even if it junk. is reduced to Such Dickey, Tex.Civ.App., dence. State measure of damages applied was here. 844, writ refused. S.W.2d cause, we reverse the And not because the Dickey employed a case measure, case was where a court wrong but bridge collapsed the court set aside because the verdict ,is excessive. We do verdict, relating values not bridge to believe that the court erred in declining collapsed, clearly after it .give requested definitions by de We wrong. must here reverse the case fendants on “actual value” and “intrinsic” remand it for trial not, a new because value. Said definitions could we jury’s believe, application verdict that the actual value have a bridge in bridge injured place just it injured, old at time was before it was is because $7,550. not, long it is bridge as it in remains a sale, subject place, and definitions of another trial we In view think it is salability ap value plied. cannot be terms necessary to rule certain of defendant’s on plaintiff agree We points relating may which matters arise art, term “actual value” is not a term county another trial. The cost to on of the definition, require not at and as least consequential is thirty-year applied to old damage, action, is not recoverable in this only damages may as the which We that whether or not think damages are recovered legible limit was the notice of the load injured bridge. plaintiff question, fact evi adduced There effect that it was. The which de from dence evidence that the it have been inferred fendants adduced notice the old could datory. it was photographs In the last-mentioned eligible, -was and introduced sup difficulty ascertaining declared in evidence signboard it not relieve notice as amount of excess that the their contention ports exercising function question was Court such the time in at posted stood difficulty excessive this lies in most cases of authority, de know of legible. We none, Ap that verdicts. Civil That Court of holding all the have cited fendants do, rejected by peals required of all is not be can may -photographs do, statute, its testimony of witnesses to exercise jury in favor contrary judicial judgment and discretion testify facts as sound -who n what is photographs. would be the ascertainment of amount indicated such what compensation sus reasonable for the given For the reasons tained, treat the balance as excess. reversed, cause is remanded opinion held that the original new In our trial. .a opinion-evidence, the effect remanded. Reversed and actual value of the time the old at Rehearing. On Motion injured it was was the same sum as clearly mis- the new re- in motion for (appellee) Plaintiff taken, support could not allowed to prejudice its mo- without hearing, but value finding verdict that such actual operation Rule tion, requests that $7,550. at time old Procedure, Rules Civil Texas We not hold that no evi- there was did n view judg- that we reversed the fact dence that not have did solely court below because ment injured, actual value at the time was awarded, court excessive that there was no evidence from end of the excess to the the amount (cid:127)state In- actual been assessed. opportun- may afforded -.that deed, we that the court not abuse held did option file remittitur ity to exercise an evidence, admitting discretion his advisable), deemed same {should by the a circumstance to be considered be avoided. trial another arriving the actual value Rule What then Art. is now injured, the cost 1029a, Supreme first construed Court, believe, in & O. R. we Syfan, Texas N. 91 Tex. Co. v. S.W. is true that the evidence in Supreme ruled there troduced did not form basis enacted, said statute was calculating before for value to a .such mathematical practice Supreme in our nicety. original Court rule cost of the old ;had $2,890, in actions for 1909-1910 been in pleted when com law, by not the measure is fixed expectancy it a life forty where had excessive, be years. when verdict was found to But necessarily follow that, not be -the re injured allowed to when it was there remittitur, by excess nounce the avoid then unexpired remained term trial, judgment must be set forty years’ expectancy which it had .a new trial completed. Also, awarded. The aside and it is well known abrogated held the statute .Court there labor greatly and material have costs by it former decisions at least far since the time (cid:127).the increased ,-as Appeals. concerned Courts of Civil In originally completed. all Considering Court said: “It factors and circumstances company (defendant right railroad (except, course, cost of the jiave appeals the court civil cape), temporary bridge), we would not have not the whether or verdict considered a verdict for damages in the determine amount, but, ;the $2,825 was excessive net sum being as so excessive question the court require determine that must By expression reversal. arrive as to what sum first at a “net sum” we mean plain .conclusion the sum after reasonable be if it charged junk held be tiff is with the value -tQ by jury, before it could assessed been in the sum Since $375. that -the verdict was detemined excessive have reversed the judgment and rendered be -holding This amount.” followed insofar as $150 allowed as being Freeman, Receiver, temporary bridge, 108 Tex. Wilson said sum 993, Ann.Cas.1918D, 1203, incorporated 185 S.W. have judgment. to be man yyas Eliminating statute said non-recover- .declared item, deducting $375 the sum able dam- judgment for $7,550, leaves the rendered court would ages which the er- (except upon jury’s verdict $7,- $150) as including said roneously Accordingly we ascertain $7,175 sum was excessive in verdict priv- $2,825, $4,350, less in this papers file ileged cause, 20, 1946, February on or $4,350 and such excess of remittitur will be the trial court judgment principal so as be reformed will $2,825, so reformed sum will affirmed, otherwise the remanded. reversed will rehearing motion Plaintiff’s terms; other- indicated

granted Klein, Antonio, ap- Bennett & San refused. will wise motion pellant. filed. if remittitur Granted Morris, Antonio, G. Woodson of San appellee.

MURRAY, Justice. L. by This suit was instituted Charles against the World Com- Insurance Johnson pany, it, disability policy on a issued seeking indemnity for dis- to recover total ability and from Novem- of time total loss 1, 1944, ber until December caused INS. CO. v. JOHNSON. WORLD impacted from an resulting sickness No. tooth treated wisdom tooth. The Appeals of Texas. of Civil extracted one dentist and another dentist San Antonio. surgeon. who is described as a dental penalty and Plaintiff also asked for a Feb. 12% attorney’s an- fees. The defendant $150 Rehearing March Denied only. general denial swered paragraph thereof, pro- policy, in the first coverage general vided for of loss of time sickness, subject by accident or caused In sub- limitations thereafter contained. sequent policy paragraph of the found a limitation, others, so-called ** * dis- policy “This cover * ** ability while the Insured continuously professional care regular attendance at least once treatment, week, beginning with the first chiroprac- physician, surgeon, licensed of a * * osteopath At trial tor or Company Insurance defended under liability this con- so-called limitation contending policy, plain- tained being under the care a dental tiff’s requirement meet the surgeon did not limitation. the court The trial without of a intervention resulted plaintiff’s favor $138.76

Case Details

Case Name: Shell Oil Co. v. Jackson County

Court Name: Court of Appeals of Texas

Date Published: Dec 20, 1945

Citation: 193 S.W.2d 268

Docket Number: No. 11724.

Court Abbreviation: Tex. App.