« 이전계속 »
not only discomfort but broken ribs and by appellant to appellee, which, among other bruises. There was no development of what things, contains the following: was done after the animals left Bay City, except that there was a probable delay in transportation. Of course, in considering the question of shrinkage, that arising from the wounds, bruises, and bad condition of the cattle caused by the fighting should not be taken into consideration.
"In consideration of the warranties and agreements contained in the application hereprovided, does on this 2d day of December, A. for and the payments of premium as therein D. 1907, hereby insure Mr. Fred W. Chase (herein called the insured), in class Ord. of the company, as a teamster and contractor in the principal sum of five thousand dollars, with weekly indemnity of twenty-five dollars, and promises to pay to the insured or to his beneficiary, Mrs. Carrie A. Chase, his wife, indemnity as scheduled below, in the event that said insured, while this policy is in force, shall
The judgment is reversed, and the cause subject to the conditions hereinafter specified remanded.
CONTINENTAL CASUALTY CO. v. CHASE. receive personal bodily injury, which is effect
(Court of Civil Appeals of Texas.
April 17, 1918. Rehearing Denied
1. JUDGMENT 256(6)-CONFORMITY WITH
Where jury found insured to have been disabled for 21 weeks and 3 days, it was error to render judgment for the benefit of 39 weeks in view of Vernon's Sayles' Ann. Civ. St. 1914, art. 1990, requiring that where a special verdict is rendered the court must render judgment thereon, unless it is set aside and new trial is granted..
2. APPEAL AND ERROR 1151(2)-DISPOSITION-REFORMING JUDGMENT.
Where jury found on special verdict that insured was disabled for 21 weeks and 3 days, the court's error in rendering judgment for 39 weeks did not require reversal, where there was sufficient evidence to sustain the verdict, and the judgment would merely be reformed. 3. INSURANCE 665(5)-HEALTH AND ACCIDENT INSURANCE-DEATH FROM ACCIDENT
VIOLATION OF LAW.
Evidence held to sustain verdict for insured on accident policy as against insurer's contention that he was injured as the result of violation of the law in assaulting another. 4. APPEAL AND ERROR 742(5) MENTS-STATEMENT.
In a cause tried prior to amendment of Vernon's Sayles' Ann. Civ. St. 1914, art. 1974, by Acts 35th Leg. c. 177 (Vernon's Ann. Civ. St. Supp. 1918, art. 1974), refusal of requested charges will not be reviewed, unless the record shows an exception thereto at proper time with proper bill of exceptions and reference to the page of the record where the exception may be found, in view of court rule 31 (142 S. W. xiii), as to the record on appeal.
Appeal from Galveston County Court; George E. Mann, Judge.
Action by Fred W. Chase against the Continental Casualty Company. Judgment for plaintiff, and defendant appeals. Reformed and affirmed.
ed directly and independently of all other causes through external, violent and purely accidental means (suicide, sane or insane, not included), and which causes at once total and continuous inability to engage in any labor or occupation, and provided that neither such injury nor inability is in consequence of nor contributed to by any bodily or mental defect, disease or infirmity of the insured.
"Part II. Weekly Indemnity. For Loss of Time.
the losses scheduled in part I, the company "If such injury shall not result in any of will pay said weekly indemnity for total loss of time necessarily resulting from injury as before described, for such period, not exceeding fifty-two consecutive weeks, as the insured shall be under the treatment of a legally qualified physician or surgeon by reason of such injury.
"In any of the losses covered by this policy and specified in parts I or II, (1) where the accidental injury causing the loss results from voluntary exposure to unnecessary danger or obvious risk of injury, or from the intentional act of the insured or of any other person (assaults committed upon the insured for the sole purpose of burglary or robbery excepted); (2) where the accidental injury causing the loss results from or is received while quarreling, fighting or violating the law-then and in all cases referred to in this part III, the amount payable shall be one-tenth of the amount which otherwise would be payable under this policy, anything in this policy to the contrary notwithstanding, and subject otherwise to all the conditions in this policy contained."
Appellee alleged in his petition:
"That on or about said July 3, 1914, plaintiff accidentally fall off a large float or dray then in motion, in said county of Galveston, Tex., and that the wheels of said vehicle ran over him, causing him to be badly injured in his head, back and all over his body and limbs, and causing him to be severely injured in his body, head, neck, back, arms, spine, back and limbs and causing him to be confined to his bed for more than three months and causing him to be totally incapacitated and unable to perform any part of his duties and work for a period of thirty-nine weeks from the date of said injuries. That the contract of insurance issued to the plaintiff by the defendant provided that in the event the plaintiff suffered and sustained injuries by accident, that it would pay to plaintiff the sum of $25 per week during such time as the plaintiff was totally and wholLANE, J. This suit was brought by ap- ly incapacitated from performing all of his pellee, Fred W. Chase, against appellant, duties. That by reason of the matters alleged Continental Casualty Company, to recover debted to him and promised by said contract of the Continental Casualty Company became inunder a certain policy of insurance issued insurance to pay to him the sum of $25 per For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
F. Spencer Stubbs and James B. & Charles J. Stubbs, all of Galveston, and Manton Maverick and M. P. Cornelious, both of Chicago, Ill., for appellant. Marsene Johnson, of Galveston, A. F. Jatho, of Miami, Okl., and Elmore Johnson and Roy Johnson, both of Galveston, for appellee.
week from said July 3, 1914, up to and including the week ending October 12, 1914, said weekly indemnity, as specified in said contract of insurance, amounting to the total sum of $975."
plaintiff, pushing, throwing, or knocking plain-
The case was submitted to a jury upon special issues as follows:
(1) Was plaintiff, Chase, knocked off the float by the driver as he attempted to get on the float?
(2) Did plaintiff, Chase, strike the driver with an iron pipe?
(3) Was plaintiff, Chase, thrown off the float in a fight with the driver?
(4) Were the injuries that incapacitated Chase from work caused by the float running over his body?
(5) How many weeks was Chase totally and continuously unable to work at his business by reason of his injuries?
lows: First, Yes; second, No; third, No; To these issues the jury answered as folfourth, Yes; and the fifth, 21 weeks and 3 days. In other words, the jury found: First, that appellee Chase was knocked off a moving float by Bracken, the driver thereof, as Chase was attempting to get on the same; second, that Chase did not strike the driver, nor was he fighting the driver at the time he fell or was thrown from the float; third, that the'injury which incapacitated him from the performance of his work was caused by the float running over his body; and, fourth, that such injury incapacitated Chase for a period of 21 weeks and 3 days.
Appellant, the casualty company, answered by general denial and special plea as follows: "That by the contract of insurance between plaintiff and defendant 'where the accidental injury causing the loss results from voluntary exposure to unnecessary danger or obvious risk of injury, or from the intentional act of the insured or any other person (assaults committed upon the insured for the sole purpose of burglary or robbery excepted), or from the insanity of the insured or any other person, or from voluntary overexertion on the part of the insured; or (2) where the accidental injury causing the loss results from or is received while quarreling, fighting or violating the law, then and in all cases referred to in this part II, the amount payable shall be one-tenth of the amount which otherwise would be payable under this policy, anything in this policy to the contrary notwithstanding, and subject to all the conditions in this policy contained.' And defendant alleges that the injury causing the loss, as defendant is informed, believes, and avers, resulted from and were received while plaintiff was quarreling, fighting, and violating the law, and from voluntary exposure to unnecessary danger and obvious risk of injury, and from the intention of a person named J. W. Bracken, as defendant is informed; that plaintiff attacked and struck said Bracken from behind with a heavy piece of wood or iron whilst the latter was driving a float, and thereby engaged in fighting and quarreling with the said Bracken and in violation of law, on said float while it was moving, and thereby exposed himself to unnecessary danger and obvious risk of injury, and he (said plaintiff) was knocked, pushed, or thrown by said Bracken, and his head was injured or skull fractured, and he was severely beaten by said Bracken with the piece of wood or iron with which the plaintiff assaulted the said Bracken, and which said Bracken took away from the plaintiff in the fight that plaintiff started, and thrown off the float onto the hard street or pavement, bruising and injuring plaintiff, and if plaintiff was run over by the float, and if he was injured thereby, such injury was only a part of the injuries received by him, and all the injuries received by plaintiff whilst violating the law by fighting were intentionally inflicted on him by the party whom he attacked on the moving float, and with whom he was fighting on the moving float, and in violation and in disregard of his contract with this defendant and the terms of the contract, and thereby plaintiff is not entitled to recover more than one-tenth of the amount which otherwise would be payable under the terms of this policy in the event of any liability by defendant for such  By its first assignment appellant ininjuries. And defendant says that the contract between plaintiff and defendant was and sists that the trial court erred in disregardis that defendant would pay indemnity as ing the finding of the jury that Chase was scheduled in the policy only in the event that disabled for 21 weeks and 3 days only, and said plaintiff shall receive personal, bodily in- in rendering judgment, based judgment, based upon the jury, which is effected directly and independently of all other causes through external, violent, court's finding, that such disability was for and purely accidental means, and which causes a term of 39 weeks. The assignment must at once total and continuous inability to en- be sustained. By article 1990, Vernon's gage in any labor or occupation, and provided. that neither such injury nor inability is in Sayles' Civil Statutes 1914, it is provided consequence of nor contributed to by any bodi- that: ly or mental defect, disease, or infirmity of the insured, and defendant alleges that the injuries to plaintiff were not purely accidental means, but were directly or indirectly caused by the party with whom the plaintiff was fighting, and who in his own defense resisted plaintiff's
Notwithstanding the fact that the jury had found that appellee, Chase, was totally and continuously unable to work at his business by reason of his injuries for 21 weeks and 3 days only, the trial court disregarded such finding, and rendered judgment in favor of appellee for the sum of $975; said sum being arrived at by allowing appellee $25 per week for 39 weeks, as claimed by him. From this judgment the Continental Casualty Company has appealed.
"In all cases where a special verdict of the jury is rendered, *** the court shall, unless the same be set aside and a new trial granted, render judgment thereon."
By an unbroken line of decisions of this
duty of the court to enter its judgment in tenth of $25 per week during the time of conformity with the verdict, whether it be incapacity to labor; that the evidence correct or not, even though the uncontradict- shows: First, that appellee, Chase, was ined testimony is adverse to the verdict. Akin jured while voluntarily exposing himself to v. Jefferson, 65 Tex. 137; Brown v. Renfro, unnecessary danger or obvious risk, by 57 Tex. 332; Fant v. Sullivan, 152 S. W. 521, boarding a float while in rapid motion; and cases there cited; Ketchum v. Boggs, second, that Chase was intentionally struck 194 S. W. 201; Darden v. Taylor, 60 Tex. and knocked off the moving float by the Civ. App. 73, 126 S. W. 944; Waller v. Liles, driver of the float, and that by reason there96 Tex. 22, 70 S. W. 17; Ablowich v. Bank, of the float ran over his body and caused the 95 Tex. 432, 67 S. W. 79, 881. In the case injury of which he complains; third, that of Waller v. Liles, supra, the trial court Chase received his injury while quarreling disregarded the verdict of the jury, and ren- and fighting, and therefore he cannot redered judgment contrary thereto. On ap- cover under the policy more than one-tenth peal to the Court of Civil Appeals that court of $25 per week during his incapacity to percertified to the Supreme Court the following form his labors. question:
"Whether or not, where, as in this case, the special verdict finds upon a material issue contrary to the undisputed evidence, the court may disregard the finding and enter judgment in accordance with the testimony, rather than upon the verdict."
Answering this question the court said:
"It is deducible from the ruling in that case that the findings of the jury upon the issues made by the pleadings in a case, although against the undisputed evidence or without evidence to support them, cannot be disregarded, but must constitute the only basis upon which any proper judgment can be rendered. * We answer the first question in the negative."
We cannot sustain this contention. The evidence shows that the float and team drawing the same were under the control and management of Chase, and there was sufficient evidence to justify a finding that the driver was driving said team at a reckless rate of speed in a public street of the city of Galveston, and that Chase boarded the float for the purpose of having the driver check his speed; that as he boarded the float the driver struck him with a cotton hook, and that he either accidentally fell from the float Or was knocked off by the driver, and that by accident the float passed over his body and The further citation of authorities to sus- caused the injury which caused his incapacitain the assignment is unnecessary. ty to perform his labors. We do not think  We have reached the conclusion, how-that under the evidence we would be justiever, that this error will not require us to reverse the judgment and remand the cause, as there is sufficient evidence to sustain the verdict of the jury; therefore the judgment of the trial court should be so reformed as to enter judgment for appellee for the sum of $527.50, such sum being arrived at by allowing appellee $25 per week for 21 weeks and 3 days, thus conforming the judgment
to the verdict of the jury.
The second assignment is as follows: "The court erred in rendering judgment for 39 weeks total disability at $25 per week, because the same is contrary to the law and the evidence."
A complete answer to this assignment is made by what has been said under the first assignment. Under that assignment we held that the court did err in rendering judgment in favor of appellee for 39 weeks, and it is therefore unnecessary to repeat the reasons there given to again sustain the same complaint.
fied in finding that Chase unnecessarily exposed himself to danger or risk, or that the injury complained of was intended by the driver, or that Chase was quarreling or fighting the driver at the time or just before the accident. These were questions for the jury and the trial court to determine from the evidence, and they found them in favor of appellee, Chase. We overrule the assign
The third assignment complains of the several paragraphs of the charge of the court because they fail to submit to the jury certain issues thought necessary by appellant. The complaint is not that the charge was erroneous as far as it went, but only that it did not submit all the issues which should have been submitted.
 We think it well settled that prior to the amendment of article 1974 by Acts 35th Leg. 1917, p. 389 (Vernon's Ann. Civ. St. Supp. 1918, art. 1974), where a case is sub This assignment, however, is followed mitted on special issues neither party can by the contention that the policy of insur- complain that the court did not submit other ance upon which this suit is founded pro- issues, unless such party requests the same vides, among other things, that when the in writing before the main charge is subaccidental injury causing the loss results mitted to the jury, and unless in case of refrom voluntary exposure to unnecessary dan- fusal such party shall reserve a bill of exger, or obvious risk of injury, or from the ceptions thereto. In a statement under this intentional act of the insured or any other assignment it is stated that appellant reperson, or where the accidental injury caus-quested the court to submit to the jury the ing the loss results from, or is received issue of proximate cause of plaintiff's inwhile quarreling, fighting, or violating the juries, but there is nothing in the statelaw, the amount payable shall be only one-ment to show that an exception was taken to
In view of Vernon's Sayles' Ann. Civ. St. 1914, art. 2326, providing that pleadings in the justice courts shall be oral, except when otherwise especially provided, the particularity required in written pleadings is not necessary in the oral statements in the justice court. 3. JUSTICES OF THE PEACE 174(22) - REPLEADING IN COUNTY COURT RULES APPLICABLE.
The pleadings on appeal from a justice court to the county court are governed by the rules applicable to justice courts, and the parties are entitled to replead in county court, without complying with rules of pleading applicable to cases originating in county courts. 4. JUSTICES OF THE PEACE 174(22) —- APPEAL TO COUNTY COURT-ORAL AMENDMENT OF PLEADING.
amendments in the county court may also be Where pleadings in justice court are oral, oral.
5. JUSTICES OF THE PEACE 174(26)—NEGLIGENCE-ISSUES, PROOF, AND VARIANCE.
ed by defendant's log train, plaintiff's oral jusIn action for value of plaintiff's mare killtice court pleading as orally amended in county court held sufficient to permit evidence that mare was negligently killed by defendant.
the refusal of the court to submit the re-gence of defendant, held not subject to objecquested charge. This court will not con- tion that it essentially changed cause of action. sider an assignment complaining of the re- 2. JUSTICES OF THE PEACE 90 ORAL PLEADINGS-SUFFICIENCY IN GENERAL. fusal of the trial court to submit requested charges in causes tried prior to the taking effect of the amendment by Acts 35th Leg. 1917, to article 1974, Vernon's Sayles' Civil Statutes 1914, unless it be shown by the statement in the brief that such refusal was excepted to at the proper time, and a proper bill of exceptions reserved to such refusal, and reference made to the page of the record where such exception may be found; and especially so where there are 37 bills of exception in the record, as in this case, and where the pages of the record where the bills, if any, may be found are not given. Carlock v. Willard, 149 S. W. 363; Oster v. Oster, 130 S. W. 265; M., K. & T. Ry. Co. v. Moore, 47 Tex. Civ. App. 531, 105 S. W. 532; Sullivan v. Solis, 52 Tex. Civ. App. 464, 114 S. W. 456. The third assignment is overruled. The fourth assignment is overruled for the same reasons given for overruling the third assignment. This court cannot consider assignments complaining of the refusal of requested charges in cases tried prior to the taking effect of Acts 35th Leg. p. 389, unless a bill of exceptions is reserved to such refusal, and unless the statement under the assignment refers us to the page of the record wherein such bill can be found. G., C. & S. F. Ry. Co. v. Dickey, 108 Tex. 126, 187 S. W. 184; rule 31 (142 S. W. xiii) for Courts of Civil Appeals. See, also, authorities cited under the discussion of the third assignment. There is no reference to a bill of exception in the statement under the assignment. signments 5 to 15, inclusive, in different forms practically present the same or similar complaints to those presented by assignments 3 and 4. The same may be said of all of them as has been said with reference to said assignments 3 and 4. They are all overruled. For the reasons hereinbefore pointed out, the judgment of the trial court is here reformed, so that judgment will be here entered in favor of appellee, Fred W. Chase, against appellant, Continental Casualty Company, for the sum of $527.50, instead of for the sum of $975, as rendered by the trial court, and as thus reformed the same is in all things affirmed.
Reformed and affirmed.
FIDELITY LUMBER CO. v. BEAN. (No. 370.)
Appeal from Tyler County Court; W. A. Johnson, Judge.
Suit in justice court by Mack Bean against the Fidelity Lumber Company. There was judgment for plaintiff, and from decision rendered by county court on appeal, defendant appeals. Affirmed.
Thomas & Wheat, of Woodville, for appellant. J. A. Mooney, of Woodville, for appellee.
BROOKE, J. This suit was brought by appellee, Mack Bean, in the justice's court, precinct No. 1, Tyler county, against appellant, Fidelity Lumber Company, for $125, the alleged value of one mare killed by the appellant's log train in Tyler county on or about August 10, 1916; said mare being the prop erty of appellee. A judgment for $100 and costs was rendered by the justice's court in favor of appellee, from which judgment an appeal was taken to the county court of Tyler county, and duty perfected. was tried on September 18, 1917, before the county court, without a jury, and resulted in a judgment for appellee in the sum of $125
The issues made by the pleadings in the justice's court were as follows:
"The value of one mare killed by the defendant's log train in Tyler county, Tex., on or about the 10th of August, 1916, and same being plaintiff's property and of the value of $125."
An additional oral plea noted on the jus
(Court of Civil Appeals of Texas. Beaumont. tice's docket was made as follows: May 9, 1918.)
1. JUSTICES OF THE PEACE 174(8) -APPEAL-AMENDMENT OF PLEADING.
In an action for the value of a mare killed by defendant's log train, plaintiff's oral plea in the county court on appeal from justice court, stating that the mare was killed by the negli
"That defendant operates a railroad in Tyler county, Tex., and was operating said train on the date of the alleged injury of plaintiff's horse, to wit, August. 10, 1916; that said railroad was not fenced at the place, and that said defendant with its train consisting of an engine and logs killed bay mare, same being the prop
the cause of action or ground of defense is so stated is of no importance, and if from all that is stated, oral or written, the court can ascertain what right the plaintiff asserts and what defense the defendant interposes, the pleading is sufficient. Rector v. Orange Rice Mill Co., 100 Tex. 591, 102 S. W. 402. It has also been held that the pleadings on an appeal from a justice's court to the county court are governed by the rules applicable to justices' courts, and that parties to an action originating in the justice's court were
In the county court appellee pleaded orally that he was the owner of one bay mare of the value of $125, and that on or about August 16, 1916, said mare was killed by the negligence of defendant. In the county court appellant filed its written motion to strike out the plaintiff's oral pleadings in said court, which alleged a new cause of action, and because the plea or averment that defendant negligently killed his horse was insufficient entitled to replead in the county court withand should state at least general negligence in some particular, and because oral pleadings cannot be made on appeal in the county court. Said written motion to strike out said oral pleadings was overruled. The case is now before this court for review.
 The first assignment of error seems to have grouped the second and fifth assignments, and the same will be considered together, as follows:
(a) "The court erred to the prejudice of defendant in overruling its motion to strike out plaintiff's oral pleadings in the county court to the effect that his horse was killed by the negligence of defendant, because such plea of negligence is made for the first time in county court on appeal, and because it does not state in what particular the defendant was negligent." (b) "The court erred in overruling defendant's motion to strike out the plaintiff's oral plea in the county court to the effect that his horse was killed by the negligence of defendant, because such plea could not be made for the first time on appeal in the county, and because it does not state in what particular the defendant was negligent, and because such plea cannot be made by oral pleadings in the county court, but should be by written pleadings in the form of amended pleadings, if made at all."
out complying with the rules of pleading applicable to cases originating in the county court (Threadgill v. Shaw, 130 S. W. 707; Barnes v. Sparks, 62 Tex. Civ. App. 451, 131 S. W. 610), and, in the same connection, that the parties in an action originating in the justice's court may orally replead in the county court (Loomis v. Broaddus & Leavell, 134 S. W. 743), and, further, that pleadings on appeal from justice's court need not be in writing, and oral amendments can be made (Daniel v. Brewton, 136 S. W. 815). It has also been held that on appeal from justice's court pleadings may be amended. G., H. & S. A. R. Co. v. Herring, 28 S. W. 580; Clements v. McCain, 49 S. W. 122; Von Boeckmann v. Loepp, 73 S. W. 849; City of Van Alstyne v. Morrison, 33. Tex. Civ. App. 670, 77 S. W. 655; Fowler v. Michael, 81 S. W. 321. Also it has been held that a new cause of action or defense cannot be pleaded in the county court. Wright v. Dodson, 93 S. W. 1075; Wooley v. Corley, 57 Tex. Civ. App. 229, 121 S. W. 1139; Amarillo Com. Co. v. Chicago, R. I. & G. Ry.
Co., 140 S. W. 377.
The rules of pleading in the justice's court are very liberally construed by the courts, and in the matter complained of the mere fact that it was the same cause of action, that is, the action was for the killing of a horse, in the opinion of this court, might be amplified in the county court, and evidence permitted to show the fact that it was on account of the negligence of the private railroad company However, there was no change of the cause of action essentially, and that is the ground of complaint in this case. We see no error in the action of the trial court, and the same is overruled.
The proposition urged under this assignment is that the cause of action pleaded in county court on appeal must not only be similar, "but essentially identical"; that is, the cause so pleaded on appeal in county court must be such that the same evidence will support both of the pleadings, and the allegations must be subject to the same defense. [2-4] Article 2326, Vernon's Sayles' Civil Statutes 1914, provides that the pleadings in the justice's court shall be oral, except where otherwise specially provided, but a brief statement thereof may be noted on the docket. Construing the article, the decisions are to the effect that the fullness and particular The second assignment of error underity required in written pleadings are not takes to group the first and fourth assignnecessary in the oral statements in the jus-ments and consider the same as one assigntice's court, and that even the form of an account will not prejudice the rights of the plaintiff as disclosed by the evidence, and it has further been held that a pleading in justice's court, though in writing, need not be more specific than if the case had been tried on oral statements of the cause of action; and the effect of this article is that no rule is prescribed except that the statement, which may be made by the parties, may be oral, and shall be entered on the docket by the justice of the peace. The form in which
ment, and is as follows:
fendant in overruling its general demurrer, be-
(b) "The court erred in overruling defendant's special exception No. 2, because the plaintiff does not charge negligence in his cause of ac