*1 et al. v. ISBELL et al. WEBSTER
No. 9927. Appeals Galveston. of Texas.
Court of Civil March
Rehearing Denied Boyles, Pahey, Dyer, Scott & Prank G. and- Wagner, Houston, appel-
Abe W. all lants. Garrison, Earle M. Manint Jno. T. both- Houston, appellees. Justice; LANE, Mrs. Viola wife of H. M. on the. employed Telephone Company the Southwestern Bell exchange at its office or of Hous- ton, Tex., operator; day’s as an work ending part at 12 o’clock m. p. aAs compensation paid employer, to her transportation furnished from its of- exchange home, so, fice and employer had contracted with one Bruce Webster' and Dixie Cab to furnish transportation service. In accordance contract, belonging a taxicab Bruce Webster and Dixie Cab charge employ aof driver in the of said own- ers called for Viola Ifebell about *2 April, by approved day by mitted the above- and 9th reason of to the Accident of contract, whereupon entered Board. as she The said $600 sum of was mentioned agreed upon. being purpose carried said of taxicab for her reached taxicab to her home. When the home, day May, 1931, On Viola the 28th of stopped, momentarily but while was Compensation Isbell and Insur- leaving (Viola Isbell) act of was in the she Company brought ance this suit taxicab, reach she was able to and before Webster, doing Bruce business under ground, started taxicab driver of Company, trade-name of Dixie Cab Dixie Cab by same, such sudden and reason of she Fidelity Company, & and the American Casu- ground starting suf- and was thrown to the substantially alty Company. al- Plaintiffs injuries. certain fered leged all stated their the facts injuries, Viola At the time of such preliminary pertinent statement, our to employ stated, was before parties suit. issues raised between Telephone a Southwestern Bell “Subscriber,” They alleged 'further that Mrs. Viola Isbell term used' joined by H. “is not in this suit her state Act Workmen’s M. has the reason that Isbell policy Texas, held a such time which at abandoned present' and deserted her and by Texas Com- issued to it of insurance said whereabouts are unknown to Companys pensation under plaintiff (Viola Isbell) and reason for such by prescribed the Com- terms and conditions prosecutes she this suit her own name.” (Vernon’s Ann. Act alleged It her that Mrs. Isbell suffered timely seq.). was notice Due and et 8306 given injuries by injuries, the 26th said and on Webster, specifical- driver of the cab of Bruce gave no- written Isbell Viola ly stating constituting alleged the acts injuries Acci- to the Industrial of such tice negligence. signed Texas, notice dent Board alleged by a It is of Viola permanent, her Mrs. Isbell were Isbell suffered serious witness. injuries the time Viola and and At Company during life; and will continue her Taxicab natural the Dixie compelled engaged relief she will be to to Bruce Webster were in the business submit major operation occupation transporting passengers will cause to her great pain, suffer Houston, Tex., and incur much cost and ex- hire pense; has, by permit city, that her health issued and accord- injuries, greatly impaired, regulations gov- such been and that ance with ordinances and system thereby operations her erning prerequi- nervous been serious- As a vehicles. permanently impaired, operate they great it, all- to to site required so and damage. procure policy to of insurance indemnity, they procure poli- did alleged It is that at time of her cy, Fidelity & issued the American Casual- -salary per receiving she was month $75 ty Company. By policy it the terms of such services; for her is'further any person was made for the benefit óf claim- injuries, since she received such Mrs. Isbell negligent opera- reason of the perform any has not been to able character tion certain the Dixie described cabs work, similar to work in which she was Company Webster, Taxicab as well engaged injured, time she was company for the benefit of said taxicab that she will able such work The insurance Webster. injuries, the future on account of toall the American damage $10,000; her in the sum of that on $2,500. for the physical pain account of the and mental suffering Isbell she has endured After Mrs. Viola had filed her since said claim Board, thereof, and as a result Industrial Accident which she will future, pending board, an continue suffer award settlement she has b en damaged agreed upon $5,000; further in the sum between claimant and physicians Texas Insurance has been who advised telephone company may hope relief un- sued its to receive major Compensa- operation future will result from der the terms the Workmen’s coccyx, operation Act, whereby company on her tion said insurance will cause agreed physical pain further mental and suf- the sum large liability fering and in full settlement of its will force to incur doc- $600 hospital, agreed tors’, nurses’, bills, and medical reason of its Such damage $5,000. her further in the sum of sub- supplemental By recovery prayed a in- an- Plaintiffs favor swering say limitation, Viola Isbell Bruce Webster defendants’ complain- $20,000, immediately a sum of Dixie Cab the accident Fidelity & ed of occurred to- American Mr. and Mrs. Isbell lived $2,500, gether,- same to be credited a sum of continued live so *3 may her about three cident, ac- on against awarded months from the time-of the any Webster, Mrs.' and out of Mr. Isbell told Bruce time her, plaintiff parents, Texas Com- Isbell to return and that sum awarded to Company awarded her Insurance she did so and continued with to live parents; $1,599.83 or such amount from her hus- sum of she did not hear again entitled the band court find it is to under until on about the 4th 1932, period- years; pleading evidence. two about suit, at the time Mrs. Isbell filed on this by general first, answered, All defendants get in she was unable to con- abatement, demurrer; second, by plea tact with her husband or to ascertain saying petition plaintiffs that the whereabouts; was, long after this woman, married its face that Mrs. Isbell is a husband, filed, that her informed by seeking and that her to recover suit she is They Isbell, living H. M. California. damages community property of are allegations generally de- denied all the of the husband, Isbell, who herself and fendants’ answer. suit, party therefore to this is not a authority May 31, 1932, Isbell has no On H. M. Isbell intervened They specially excepted adopted, own, allega- to the this suit. suit and as his allegations Compensation Texas tions in Mrs. Isbell. Company telephone that the com- Insurance pany, day May, 1932, On said 31st the cause employer carried jury issues, upon special was tried before a insurance with the answer which H. Is- found that M. Company, Compensation Insurance not, prior bell had filing time of and to the injuries it of Mrs. Isbell’s of this abandoned and refused compelled pay Mrs. was $600, sum support Isbell; that Mrs. Viola Isbell subrogated entitled that it is to be injured alleged through action of Mrs. Isbell to the cause of alleged. paid extent,of sum which it to Mrs. Is- $15,- also found that the sum of bell, appears plaintiff's pe- from that it paid cash, fairly if and ade- that, at the tition time Mrs. Isbell received compensate quately Isbells, (1) for the injuries, she was the lawful wife of H. injuries alleged proven to have been re- M. and he alone was authorized Isbell, taking ceived Mrs. into considera- suit, and it this is not shown that anguish tion physical suffering mental Company the Texas injuries, her as a direct result of her any ever M. Isbell on account trial; (2) down to date for loss of allegations of such and to the work, time Mrs. Isbell from her as a direct company seeking recovery against by her, result received paid by company fendants sums to the date thereof down to the date of trial appear does cause; (3) the reasonable cash allegation Industrial Accident value of such sum or sums as she will in rea- approved the Board ever settlement had be- probability sonable yond lose the future and be- Compen- Isbell and tween Mrs. the date of because of her dimin- Company, sation Insurance and for rea- capacity work, perform ished labor son said and said void com- as a direct result of the pany subrogated was not to be entitled to the her. husband; claim Mrs. Isbell or Upon jury, the verdict the trial if I-I. against Isbell ever had cause of action rendered wherein it defendants, recited as the same the ap- arose on' follows: parent plaintiffs’ pe- from the facts therefore, considered, “It ordered, ad- two-year tition is barred judged and decreed the Court that (Rev. 5526). limitation Mrs. Viola S. Isbell and generally also Defendants denied all the H. M. do have and recover of and plaintiff’s petition, from the defendants Dixie Cab separate May Webster, instrument doing Bruce business under the reiterated name of the Dixie Cab abatement.' the sum
345 Dollars, exception. Epting (Tex. interest of Fifteen Thousand App.) v. Nees Civ. per S.W.(2d) Jurisprudence, thereon from rate six this date at the 25 3 per 404, p. 575; Hudgins (Tex. cent annum. v. T. Meek B. App.) S.W(2d) 681; Luginbyhl Civ. Thompson (Tex. 1 v. appearing “And evi- it further from the S.W.(2d) 380; Civ. defendant, dence in this Ameri- case S.W.(2d) Holt v. Wilson 580, 583; Casualty Company, carried can Johnson Sunset v. Store insurance plain 646. The Thousand, in Dollars, Five Two Hundred presents tiffs on its face cause §2,500.00), of action Com- issued to Dixie Cab maintainable Mrs. pany doing Isbell. Therefore the Webster business did not err in indemnify- the defend the name of Dixie Cab demurrer, ants’ effect said Dixie Cab or Bruce Web- *4 in law to admit personal true the in- ster jury loss on account of petition. such sum, to said there- is fore, adjudged ordered, that decreed Independent of the waiver defend Is- Mrs. S. Isbell and H. M. Viola plea mentioned, ants’ in abatement above bell, said do have of and and recover from notwithstanding finding that defendant, American Isbell, husband of Mrs. Viola Twenty Five Hundred not, prior had at time of and to fil Dollars, (§2500.00), sum when collected of this suit Mrs. on Isbell applied- to be for on said as a credit support abandoned and refused to Mrs. (§15,- Dollars, the sum Fifteen Thousand opinion brought by we are suit plaintiffs against 000.00) herein awarded to Mrs. Isbell was her. maintainable Company and Bruce the defendants Dixie Cab Webster, doing Cab business the Dixie Mrs. Isbell testified that she received her for all which execution day April, 1930; that shortly issue. thereafter she and her husband went Jackson, Miss.; ordered, adjudged to that about December “It is further Jacksonville, Tex., to she went plaintiff, to her that the creed parents, that her husband remained in awarded the sum of be Jackson, Miss.; Dollars, (§600.00) her, that husband told Hundred out of the Six Judgment go she him in time left Jackson to to herein rendered parents, did that he not know Plaintiff, what he Isbell.” S. Viola do; going they separat- to that after appealed All defendants have from the ed in Jackson she heard him from letter judgment rendered. February, 1931, , he was that time in Appellants in that effect insist Miss., Jackson, Ala.; Mobile, and in that she overruling court erred in their de nothing heard more from him or of from Feb- plea plain murrer and to in abatement ruary, 1931, April, 1932; to that at the time tiffs’ and suit. she suit she did not know where was; We husband think overrule such contention. she had not We heard things alleged February, that, from the matters him since al- though prior had a cause action maintainable the case been once state tried joinder to this had without the not from her heard hus- appellants’ plea April, 1932, band her husband. If since abate- until presented was ever that at the time she ment filed this suit ruling thereon, did not fact is know where or to such not shown how locate him. Having Jabkson, H. Miss., order of record. to M. Isbell testified that entered failed plea, ruling upon' appellants parents he his wife evoke such sent Texas; appellants waived the same. It is true that that after he left he Jackson went to stayed year exception complaining have filed bill California and there and six n months, of the court while there he did not com- wife; plea plaintiff’s petition, municate with his knew, abatement to so far as he exception during period, such not is sufficient to neither his wife ruling complained whereabouts; nor her relations know of of before this Judgment that he to review. the trial went California court on the to leave trouble part signed by in abatement constituted rec- checks relative to which were proper, preserved by Gray (witness) cashed, ord which must en- Mr. and which he try unpaid, on 'minutes of the court and could not be and' which came back as he brought money them, before this court bill not to take care review did have necessary case, may wife they thought him for he render it after were and as he community prop- preservation Texas; as for checks, cashing he left stayed erty him, they he to sue thought alone. after he himself; away conceal and tried to Appellants contend for reversal April, in- brother March or or about judgment that, undisputed since the evidence complaint no had been there him that formed might any recovery re stay him; intended that he filed away belong coverable community learned he until Isbell, Mr. of Mr. Mrs. estate him; complaint right institute and Isbell alone had he got to Texas back he therefore the suit Tex., Jacksonville, his wife see went to brought by recover things over talked wife he and and after action, which on the 10th cause arose together. go back decided running stop not did testimony witnesses these two limitation, and, since the statute stands uncontradicted. did shown that join May 31,1932, such cause suit until manage and control While two-year by the statute of action was barred community the terms estate by appellants. pleaded of limitation during with the continue relations, First, marriage still We be- overrule such contention. the existence *5 only apply cause, shown, already necessarily meant to we have held that it must pres compensation Mrs. Isbell carrier 'husband and the had the where in cases those duty right suit; willingness such to institute and this' to assume ence and properly gave position second, dis that Mrs. Isbell due shown and trust charge timely justice wife. notice and there- with the same presented Industrial the effect Accident numerous to are “The authorities compromise Texas,’ his Board has abandoned husband where discharging agreement, longer the duties between her Com- and is wife manager had upon of the con Insurance him as incumbent employer, rights Mrs. Isbell’s of the wife sued partnership,. the its nubial day February, 1931, passive that on immediate been hitherto which have may approved active, Board do Industrial Accident such herself and she become agreement, ordinarily law and that the Texas things are intrusted family. Company paid $600 to Mrs. Isbell head the husband situation, necessity satisfaction of award made under said out of This arises agreed wife upon inherent settlement. based property share to her own herself having The claim of Mrs. Isbell been filed community, out dereliction Board, before the Industrial Accident statutory discharge of the in the running husband of the statute of limitation was sus- agent upon of the Com imposed him as pended duties day until the 18th Rights, Speer’s § Marital munity.” Law finally at which time the Accident Board act- p. there cited 112, See authorities approved ed the claim. On the 31st note. May, 1932, H. M. Isbell intervened wife, thereby in the suit filed 438, 557, Speer’s be- p. Law In of Mar- section appears came it therein. So Texas, Rights said: “The wife ital years elapsed than less two between the time all suits recov- a_plaintiff the final the Industrial Accident separate property; ery of her she is Board on the claim filed with it Mrs. Is- bring person authorized to such suit. bell and the time H. M. Isbell it, intervened may bring husband either himself Her this suit. jointly in the her. But event he fails with so, may bring neglects to then she In Union Co. v. Texas time is allowed the alone. No definite hus- Light & Power 35 suit. When band within 782, Riley employee one anwas arisen a cause of action Bros., Pevito a subscriber under the Texas neglects wife, it, fails or husband and the Compensation Act, Workmen’s delity and the Fi- may sue; or if he refuses for then she Union was the car- authorities reason.” See cited note. compensation rier their workmen’s insur- Riley gather We from the authorities where ance. the 9th unusually prolongs 1927, November, working while absence present employee,through wife, as in from contact with the Texas Light Company. Riley 609; & a claim 563; Power W. Id. Com. 293 S. W. Board Hudgins (Tex. Industrial Accident T. B. Meeks Co. v. judg- S.W.(2d) 764; which he was board awarded Sauerwein, Braun v. 895; ment carrier. Wall. 827, 828, 19 L. Ed. R. 17 C. L. Riley protested From such award § 37 C. J. 455.” award suit court to have the district already sufficiently As what we have judgment larger set aside and to recover for a disposes appellants’ propositions 2, 5,3, casualty company contested amount. The thereby the contentions made are over- Riley. Riley the suit of recov- In ruled without further comment. judgment. became ered Such Appellants contend, as a cause .also final on Such March judgment, for a reversal of the that the ev casualty company, and on the idence adduced on their aménded motion for n 21st years day April, more than two new trial shows that the discussed and Riley, injury after the the cas- date of considered, deliberating while on the amount ualty company instituted suit damages they plaintiff, would allow Light for its own Texas Power & doctors’ bills she had incurred and would Riley. In the suit last men- benefit and probably incur in the future on account of Light tioned, Power suit, involved and the answer, .this that more than in its years two probably fact that she would have to an Riley’s elapsed between the date of attorney’s fee out of whatever she recovered suit, filing and the of said the evidence also showed by the such cause of action was barred two- this discussion affected the amount of year of limitation. The trial verdict, but that it could not be de limitation and dismissed sustained ap termined from the evidence the exact or the suit. proximate extent that discussion affected Ap- Upon appeal to the an Court Civil jury’s the amount of the verdict. *6 peals Dallas, that: the court held After a careful consideration of all facts against “Limitation of insurer’s action alleged shown relative to the misconduct of party injuring employee only runs third jury, together ruling the with the of the court employee entry judgment final for thereon, we have reached the conclusion that (Rev. 6; insurer krt. subd. art. require such misconduct does not a reversal 8307, 6a). § judgment. of the After the trial court had “Limitation of testimony insurer’s jurors, heard the of several of the employee party injuring suspend- third was case, substantially who tried the he an- day employee entry ed from plaintiffs claim until nounced to counsel for the (Rev. judgment against nf final insurer St. fendants that he found from the evidence that 8307, 6a).” subd. art.' jury § there was misconduct the dis- page 811, cussing probable 37 C. J. 154. See the amount of doctor’s bills pay Mrs. Isbell would have to and how much In “If the case mentioned the court said: attorney’s fees, would have we mistaken our conclusion that be the deliberating .while as to what amount begin un- statute of limitation did to run injury, should find for her because of her entry til final in favor of the such misconduct would be rendered Riley compensation suit, the that such harmless, injury or without to the defend- began Riley limitation run on the date re- ants, plaintiffs if the $12,000 would remit we are nevertheless ceived opinion $15,000 plain- the total sum of awarded to the conclusion, that the same under the jury, tiffs verdict un- case, Riley facts of this is inevitable. is for- plaintiffs $12,000, less filed remittitur of bidden, by statute, the terms of to insti- grant court would defendants’ motion for new tute suit as a common-law aetioh filed, trial. After such remittitur was any overplus damages favor to recover he court overruled defendants’ motion for new statute, be entitled to under the until he judgment against and rendered defend- prosecuted his claim for $3,000 only; ants for the sum of final and successful conclusion. While legislative .prohibition preponderance to enforce his The of the evidence shows rights existed, under this statute injury the law of that Mrs. Isbell suffered an suspended. injury limitation is Threshing Manes v. Case neg- and that such was caused (Tex. ligent Mach. Co. Civ. 295 S. act of the driver of the cab of Webster therein; Lipsitz W. and authorities cited jury and Dixie Cab and the so v. First Nat’l Bank words, 288 S. found. In other that Mrs. Isbell suf- vehicles; governing policy any was complained fered the claim- one was sued and benefit of use the cab driver of prac- evidence, it. conclusively shown issue was tically only stated, real controversial think we Under the circumstances plaintiffs as fully petition awarded the amount advised damages. claiming that the insurer that of thosfe the injured the benefit was heard evidence trial The operation Bruce Webster miscon tainted amount of verdict the jury, vehicle, of his licensed which class remittitur that a and found duct portion any one. We think the clear intendment possible $12,000 cover allege, and, findings absence was to so verdict'. tainted so special exception abundantly supported of a to the al- .addressed judge are trial to, legation should stand findings referred not be evidence, should permit allegation to considered a sufficient disturbed, leaves it rea evidence unless beneficiary proof that Mrs. Isbell was a un- sonably amount as to whether doubtful der the amount to cover remitted sufficient mis verdict added plaintiff It incumbent complained of. Certain conduct allege sufficient facts to advise the defend material aft not be misconduct could ant that is concerned with the $12,000 large remitted er page cause of action averred. 49 O. J. $15,000 the ver awarded total Ry. Cooper, jury. N. v. I. G. dict of good Believing Appeals); (by S.W.(2d) Tex. Com. of 1 Estep addressed demurrer Bratton v. appellants it, the motion for rehear- ing is overruled. pointed out, the the reasons For Overruled. affirmed. Affirmed. Rehearing.
On Motion rehearing By in this motion Bruce Webster behalf of Amer-. of Rich ican *7 mond, Va., urged that this court erred sustaining action of the trial court LINE TEXAS PIPE CO. v. MILLER. complain general demurrer No. 1272. petition. They in ants here to the Appeals of Court of Civil Texas. Eastland. allegation peti-. sist there 11, 1934. May policy casualty tion company Webster was issued to Bruce them, plaintiffs, or benefit allegation, the absence subject demur rer. petition did, in their ef- The
fect, allege issuance of the insurer, casualty com- Webster charged specifically pany, and that Viola S. recover Isbell is entitled to Amer- Fidelity Casualty Company to the ex- ican $2,500 by reason issuance tent of of its face, parts, on its of its some Bruce Webster had received a operate
license Houston to vehicle, was instrumental hire, injury of Mrs. in full ac- regulations with the ordinances and cordánce