Jackson v. Fleming Co.

487 S.W.2d 190, 1972 Tex. App. LEXIS 3066
CourtCourt of Appeals of Texas
DecidedNovember 1, 1972
DocketNo. 677
StatusPublished
Cited by1 cases

This text of 487 S.W.2d 190 (Jackson v. Fleming Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. Fleming Co., 487 S.W.2d 190, 1972 Tex. App. LEXIS 3066 (Tex. Ct. App. 1972).

Opinion

TUNKS, Chief Justice.

This suit arose from a four-vehicle collision on the one-way, two lane feeder road paralleling the Gulf Freeway in Harris County, Texas. Lawrence Jackson and Restaurant Management Consultants & Analysists, Inc., Jackson’s employer and the owner of the vehicle driven by Jackson, were the plaintiffs. Jackson sued for personal injuries and the corporate plaintiff sued for damages to its vehicle. Texas Employers’ Insurance Association intervened to recover workmen’s compensation benefits it had paid Jackson. The defendants were The Fleming Co., Inc., its employee driver, Pearley Jones, Jr., and Dennis Lee Barhorst.

The collision occurred when Barhorst stopped the vehicle being driven by him. Barhorst stopped in the right-hand traffic lane to pick up a hitchhiker. A truck stopped behind Barhorst. Jackson stopped behind the truck. The vehicle driven by Jones collided with the rear of Jackson’s vehicle.

The case was tried to a jury. The jury found both Jones and Barhorst guilty of primary negligence which caused the collision. It also found that Jackson was [192]*192guilty of contributory negligence causing the collision. It found Jackson’s damages to be in the amount of about $33,000 and the damage to the vehicle driven by Jackson to be $850. It was stipulated that Texas Employers’ had paid Jackson $9,035.05 in workmen’s compensation benefits.

The trial court rendered judgment that the plaintiffs and intervenor take nothing against the defendants Fleming Co. and Jones. During the trial and before verdict Barhorst paid into the registry of the court, under circumstances hereinafter discussed, the sum of $10,000. The trial court’s judgment awarded that fund to the plaintiff, Jackson and the intervenor, Texas Employers’ in full satisfaction of their cause of action against Barhorst.

Jackson and Restaurant Management have appealed without limiting the scope of their appeal, as they might have done under Tex.R.Civ.P. 353(c). In their brief, however, it is stated that Jackson does not complain of that portion of the trial court’s judgment relating to the cause of action against Barhorst. In the prayer to appellants’ brief it is prayed that the judgment as to Barhorst be affirmed and that only the judgment as to Jones and The Fleming Co, be reversed and remanded. Barhorst in his brief states cross-points on the basis of which he seeks reversal of that portion of the trial court’s judgment awarding to Jackson and the intervenor the $10,000 which Barhorst paid into Court. The brief of Jones and The Fleming Co. asks for af-firmance of that portion of the judgment relating to them. Texas Employers’ Insurance Association has not appeared in this appeal. No party challenges the eviden-tiary support for the jury’s findings of fact.

The sole basis upon which the appellants, Jackson and Restaurant Management Consultants & Analysists, Inc., seek reversal is the alleged error of the trial court in admitting, over their objection, testimony that Jackson had received workmen’s compensation benefits for injuries he sustained in the accident. In that connection, the circumstances under which such testimony was admitted are relevant.

Jackson’s direct examination began on Friday, December 10, 1971. During such direct examination he was asked about and testified about the benefits he received as an employee of Restaurant Management. He testified that in addition to his salary he was furnished uniforms, meals and a vehicle to drive to and from his home. He was then interrogated and answered as follows :

“Q Was there anything else furnished to you now besides your food, your uniforms and taking this truck home at night ?
A No, sir.
Q That’s about it ?
A Yes, sir.”

Part of the cross-examination of Jackson was conducted on that same day, but it had not been finished when the court recessed. In that part of the cross-examination there were no questions concerning workmen’s compensation benefits.

On Monday, December 13th, when the trial resumed other witnesses were called before the cross-examination of Jackson was continued. One such witness was Mr. Harry L. Chambers, President of Restaurant Management, who was called by the plaintiffs. In answer to a question by plaintiffs’ attorney as to what Jackson was making at the time of his injury the witness replied:

“His salary was in the neighborhood of eighty, $90 a week, plus there was some other benefits, too.”

The witness was then asked, by plaintiffs’ attorney “Was there anything else that you furnished him now besides food and money?” He told about the uniforms, the meals and the use of the company truck. He also told about paid vacations and an annual Christmas bonus.

[193]*193This testimony must he considered in the light of other testimony by the plaintiffs. Jackson testified that he was discharged from the hospital to which he was first taken after the accident after examination but without any treatment in spite of his rather severe injuries. On such discharge he was taken to his home by a fellow employee. He stopped on the way home to get medicine for his pain. When he did not show up for work the next day his employer became concerned and sent someone to investigate. It was only after that that he was sent to a doctor and placed in a hospital for treatment.

Such was the state of the record when counsel for the defendants, Jones and The Fleming Co., began the cross-examination of Chambers. (Jackson had not yet been recalled to the stand.) After interrogation as to other matters the defendants’ attorney asked to take up a point with the court. A conference was held at the bench. The record does not show what was said in that conference. After the conference the defendants’ attorney began interrogating Mr. Chambers about Jackson’s workmen’s compensation coverage. That line of interrogation continued for three and a half pages of the Statement of Facts without any objection by plaintiffs —so far as the record shows. When plaintiffs’ attorney did object to a question as to the amount of compensation payments Jackson received, the objection was on the ground that the witness did not know of his own knowledge. The court, in effect, sustained the objection by telling the witness to confine his testimony to facts within his own knowledge. When the witness was then asked if he knew the extent of such benefits plaintiffs’ attorney objected on the grounds that such evidence was “irrelevant, immaterial and is not any evidence for an ultimate fact issue . . . ”. Later it developed that the witness did know what benefits had been paid and thus the question to which plaintiffs objected was not answered.

On December ISth the plaintiff, Jackson, was again called to the stand and counsel for Jones and The Fleming Co. resumed his cross-examination. Jackson was asked about his workmen’s compensation benefits. Plaintiffs’ attorney objected because such testimony was irrelevant and prejudicial. The court overruled. For the first time plaintiffs moved for a mistrial. That motion was overruled. There has been filed in this appeal only a partial Statement of Facts consisting of only the testimony of Jackson and Chambers. There was, however, a stipulation that such partial statement of facts constituted all of the testimony concerning workmen’s compensation benefits.

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487 S.W.2d 190, 1972 Tex. App. LEXIS 3066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-fleming-co-texapp-1972.