author: DUNAGAN, Chief Justice.

text:
    Jack GOODING et ux., Appellants, v. SULPHUR SPRINGS COUNTRY CLUB, Appellee.
    No. 340.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 14, 1967.
    Rehearing Denied Jan. 11, 1968.

      L. F. Sanders, Canton, for appellants.
    Ramey, Ramey & Neal, Jack G. Neal, Sulphur Springs, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from an order denying a temporary injunction. The appellants instituted this suit in the District Court of Hopkins County on March 27, 1967, seeking a temporary restraining order restraining the appellee from, in essence, interfering with appellants’ use of the road running from Interstate Highway No. 30 through land owned by appellee, which adjoins the land owned by the appellants, and further asked in said petition that upon final hearing the appellants have a permanent and perpetual injunction against the appellee. The appellants alleged in their pleadings that the road in question was a public road and in the alternative alleged that if such road was not a public road, then they had obtained an easement by prescription.

The trial court granted the appellants’ temporary restraining order without notice and without hearing. After a full hearing, the court on September 7, 1967, refused a temporary injunction. From said judgment, the appellants have perfected their appeal to this court.

The case was tried to the court without a jury. No findings of fact or conclusions of law were filed and none requested.

This controversy involves a road which runs from Interstate Highway No. 30 through property belonging to appellee to the property which belongs to the appellants. The appellee, by letter dated September 27,1966 advised appellants that the road in question wouid be closed April 1, 1967. The appellants contend that the appellee does not have the right to close this road in that the appellants have obtained an easement thereon by prescription or that the road had been dedicated to the public in general and consequently the trial court committed error in its refusal to grant to the appellants the temporary injunction as prayed for.

Mr. Ward Gober was called as a witness on behalf of appellee and he testified that he had lived in Sulphur Springs since 1913 and was a charter member of the Sulphur Springs Country Club, the appellee herein. The witness further testified that the strip of land running from Interstate Highway No. 30 up to the proximate location of the appellee’s club house was purchased in 1931 or 1933; that at the time this particular strip of land was purchased, there was no road located thereon and it was an open field. Prior to opening the road in question, the witness testified that the route used by members of the Sulphur Springs Country Club was through the property owned by Jess Spencer, lying east of part of the present road in question. The witness also testified that the road in question was built in 1941, with the appellee paying the entire expense for such construction.

Mr. Bill Tyler, who was called as a witness by appellee, testified that he had resided in Sulphur Springs since 1943; that he had been a member of the Sulphur Springs Country Club for about 12 or 14 years and was presently a member; that he had previously owned the property adjoining the property of the appellee, which is now owned by the appellants, by virtue of a conveyance from him to them on March 9, 1963. He purchased a portion of the property in 1952; that during all the time he owned the property, he used the road in question to get to his property. He further testified that prior to 1958, the road leading directly to the appellants’ property was situated north of where the road is now located. He changed the location of the road in 1958. He also testified that at all times when he used the road, he did it with the permission of the appellee; that when he changed the road, he also did this with the permission of the appellee; and that he at no time claimed any ownership in such road. This testimony stands undisputed in the record. There is no contention made that an easement has been created by the way of necessity. Mrs. Gooding, one of the appellants, testified that there was a county road, called the Brinker Road, which ran to the appellants’ property. She further testified that since she and her husband had purchased the property, they had never contributed to the expense of repairing and maintaining any part of the road in question. She concluded her testimony on cross-examination by stating that the only person the appellants talked to concerning the road in question at the time they purchased the property was Mr. Bill Tyler and since that time they had talked to no one concerning the use of the road in question until such time they received a letter from the appellee advising them that the road would be closed on April 1, 1967.

The use of the road by the public has at all times been consistent with that of the appellee. The testimony shows that the road was used to haul feed to and milk from the Goodings and their predecessor in title, W. S. Tyler; it was also used by neighbors and relatives of the Goodings. The Sulphur Springs school bus transported the Gooding children to and from school over this road since the Goodings purchased and moved on their property in 1963. Service personnel of the utilities that served the Goodings likewise, used the road.

Mrs. Gooding testified that she and her husband talked to W. S. Tyler and someone that she referred to only as Dick at the Country Club about repairing a bridge on this road. In the course of the conversation, she testified that Jack (whom we assume was her husband, Jack Gooding) said: “Well, I’ll get someone in there to fix that.” (the bridge) and Dick (apparently connected with the Country Club) said: “Well, we’ll have to have a meeting before we give permission to do so.”

W. E. Miller, who was County Commissioner for that part of Hopkins County from 1951 until 1963, testified that during the time he was County Commissioner, he used county equipment to work oil in on this road. He did not remember how many times. He further testified on direct examination

: SMOJJOJ SB
“Q What was the custom, if there was one, as to putting oil on the roads at the time you were commissioner?
“A Well, they bought the oil and we worked it in.
“Q Was that a custom that you followed with everybody, with people wanting road oil, you would work it in there, up and down the road, and they furnished the oil and you had the county hands and equipment and worked it.
“A Yes.”

The evidence also shows that the county did work on the road and repaired the bridge thereon in 1964 at the Gooding’s request. It is not shown that the appellee had any actual knowledge of the Gooding’s request or of the repairs being made. Dinwiddie v. American Trading and Production Corporation, 373 S.W.2d 867 (Tex.Civ.App., El Paso, 1964, n. w. h.).

We think it apparent from this record that the appellee constructed the road in question leading from what is now Interstate Highway No. 30 to its property for the use of its members. The evidence is undisputed that Bill Tyler, the predecessor in title to the Goodings, used the road in question to get to his property with the consent and permission of appellee and without any claim of ownership therein. It is also undisputed that the road over appellee’s property used by Mr. Tyler was changed in 1958 and this was likewise with the permission and consent of the appellee.

It is well settled in this state that a public right-of-way by prescription can be established only by showing an uninterrupted use by the public under an adverse claim of right. The use of lands of another by the public as a roadway, with the acquiescence of the owner, will not ripen into a prescriptive right, no matter what period of time such use may continue, unless the evidence shows that such use was by claim of right adverse to the landowner of which adverse claim the latter has notice. Ladies’ Benev. Soc. of Beaumont v. Magnolia Cemetery Co., 288 S.W. 812 (Tex.Com.App., 1926); Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622; Schultz v. Shatto, 150 Tex. 130, 237 S.W.2d 609; O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878; Miller v. Pellizzari, 342 S.W.2d 48 (Tex.Civ.App., 1960, Eastland, n. w. h.); City of Gilmer v. Moyer, 181 S.W.2d 1008 (Tex.Civ.App., Texarkana, 1944, n. w. h.). Our Supreme Court has said that: “An important essential in the acquisition of a prescriptive right is an adverse use of the easement. ‘Generally, the hostile and adverse character of the user necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession. If the enjoyment is consistent with the right of the owner of the tenement, it confers no right in opposition to such ownership.’ * * * ” Othen v. Rosier, supra.

Easement by prescription does not begin to run until the party against whom the prescription right is claimed has notice. Martin v. Burr, 111 Tex. 57, 228 S.W. 543, 546 (1921). The record reveals that the original and continued use of the road by others was by permission of the appel-lee. The permissive use of the roadway over the land of another contemporaneously with the owner’s use of the same roadway is not adverse.

To establish an easement by prescription over the land of another, it must be shown that the use was open, notorious, hostile, adverse, uninterrupted, exclusive and continuous for a period of more than ten years. A failure to prove any one of the essential elements is fatal. Mere use alone will not create an easement. Moreover, the use of the way is permissive and not adverse, as a matter of law, if the way is also used by the owner of. the land, along with the adverse user. O’Connor v. Gragg, supra; Othen v. Rosier, supra; Rust v. Engledow, 368 S.W.2d 635 (Tex.Civ.App., 1963, Waco, writ ref., n. r. e.) and cases cited therein.

Since the undisputed testimony shows that the appellants’ predecessor in title used the road in question with the permission and consent of the appellee up until his conveyance of the property to the appellants in 1963, there has been no use of the roadway for ten years in a hostile and adverse manner. Further, under the authorities cited, since appellee was also using the roadway, such use as appellants and their predecessor in title made of the way is permissive and not adverse, as a matter of law. The use of the roadway under the circumstances reflected by this record has not ripened into a prescriptive right.

We next consider appellants’ contention that said road has become a public road by implied dedication.

In order to constitute dedication by estoppel or implication, there must exist a clear and unequivocal intention on the part of the landowner to dedicate the same to public use and an acceptance thereof by the public. Greenway Parks Home Owners Association v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235, 316 S.W.2d 74 (1958); City of Tyler v. Smith County, 151 Tex. 80, 246 S.W.2d 601; International & G. N. R. Co. v. Cuneo, 47 Tex.Civ.App. 622, 108 S.W. 714 (1908, writ ref.); Maddox v. Maxwell, 369 S.W.2d 343 (Tex.Sup., 1963); City of Plano v. Reed, 392 S.W.2d 197 (Tex.Civ.App., Tyler, 1965, writ ref., n. r. e.); Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957 (1952).

It has been held by the Supreme Court of this state in City of Houston v. Scanlan, 120 Tex. 264, 37 S.W.2d 718, 720, that:

“The vital principle, as seen from the authorities, upon which the doctrine of dedication rests, is the intention of the owner to dedicate. This intention may be implied from the owner’s acts, coupled with the intention with which he did the acts. * * *
“But the intention to dedicate must be shown or be inferable, by sufficient evidence, from the owner’s acts. * * * ”

The intention to dedicate must be shown by something more than an omission or failure to act or acquiescence on the part of the owner. Worthington v. Wade, 82 Tex. 26, 17 S.W. 520; Gulf, C. & S. F. Ry. Co. v. Montgomery, 85 Tex. 64, 67, 19 S.W. 1015; International & G. N. R. Co. v. Cuneo, supra; Maddox v. Maxwell, supra. Without an intention to dedicate, there can be no dedication.

To constitute a dedication there must be an intention on the part of the property owner to appropriate the property affected to a public use. This intention may be manifested by express declaration of the property owner, or by his acts and conduct with reference to such property from which the existence of such intention may be fairly implied. Mere use of the property by the public, without a manifested intention on the part of the property owner to surrender to the public the dominion over the property, so far as such use may be concerned, is insufficient to establish a dedication to public use. Ladies’ Benev. Soc. of Beaumont v. Magnolia Cemetery Co., supra. It has been held in Hestand v. Johnson County, 206 S.W.2d 665, 668 (Tex.Civ.App., Waco, 1947, n. w. h.) that: “In some instances dedication can be presumed, but such presumption cannot prevail without evidence of some facts or circumstances clearly warranting such presumption, and the same must be established by some act and declaration of the owner of such public and deliberate character as to make it generally known and not of doubtful intention. As a rule, presumption does not exist from mere proof of public user alone, but, * * * there must be evidence of some act or declaration or a course of conduct on the part of the alleged dedicator indicating an actual intent to dedicate his land to the public. * * *” The evidence concerning the county’s use of its equipment and men to perform work on the road is not sufficient to show that the appellee agreed to it or consented to it with the intent to dedicate said road to the public. Hestand v. Johnson County, supra.

The road in question terminates on the appellants’ property. The evidence shows that the road was used by others along with appellee. The use of the road, as testified to by the witnesses called by appellants, was in almost exery instance for the purpose of furthering the business of the appellants and their predecessors in title. The use of a way over the land of another when the owner is also using the same is not such adverse possession as will serve as notice of a claim of right, for the reason that the same is not inconsistent with a license from the owner. Othen v. Rosier, supra; Callan v. Walters, 190 S.W. 829, 832 (Tex.Civ.App., Austin, 1916, n. w. h.).

The record before us fails to reveal any evidence of any declaration or act on the part of appellee that would imply that it intended to dedicate to the public, irrevocably, the road in question.

Moreover, as above stated, this case was tried to the court without the aid of a jury. No findings of fact or conclusions of law appear in the record, so all disputed questions of fact must be resolved in support of the trial court’s judgment. For appellants to prevail, they must show dedication to the public or title as a matter of law, which the evidence in this case fails to so show. Greenway Parks Home Owners Association v. City of Dallas, supra; City of Plano v. Reed, supra.

The evidence is not clear as to the extent of the change of the road made in 1958. In view of the likelihood of a trial on appellants’ petition for a permanent injunction, we point to the rule of -law in this state that says: “To establish a private right of way by prescription, the line of travel must be definite; any material deviation or variance for the requisite period does not establish a prescription right, but a slight divergence would not defeat such right, * * Murff v. Dreeben, 127 S.W.2d 577, 581 (Tex.Civ.App., Dallas, 1939, dism. judg. cor.).

Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: NYE, Justice. SHARPE, Justice.

license: Public Domain

text:
    Roland SETLIFF, Leonard Setliff and Ray R. Setliff, Appellants, v. A. H. FIELDER et al., Appellees.
    No. 350.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 14, 1967.
    Lee Mahoney, of Mahoney, Shaffer & Hatch, Corpus Christi, for appellants.
    J. M. Burnett, of Lewright, Dyer & Redford, Corpus Christi, for appellee.
   OPINION

NYE, Justice.

This suit involves the construction of one paragraph contained in the will of J. T. Gil-lett. Originally suit was filed by the three independent executors of the estate of J. T. Gillett, deceased, against one of the appellants, Roland Setliff, for possession of the Gillett farm and for crop rents for the year 1963-64. Roland Setliff answered and filed a cross-action against the executors in which he sought recovery for the crop rents already paid by him for the crop year 1962-63 and also for the same crop rents sought by the executors for the crop year 1963-64. Thereafter, Leonard Setliff, brother of appellant Roland Setliff, who had been farming the remaining portion of the Gillett farm, filed his petition in intervention seeking recovery of the crop rents paid by him for the crop years 1962-63 and 1963-64. Ray Setliff, father of Roland and Leonard Setliff, also intervened, claiming a portion of the crop rents paid by his two sons. The total crop rents involved for the two crop years amounts to $22,766.03. With the issues thus drawn the parties stipulated to the facts and trial was had before the court without the intervention of a jury. Judgment was entered favoring the executors. The three Setliffs have perfected their appeal to this Court.

The appellants claim that they are entitled to the crop rents for the years 1962-63 and 1963-64 by virtue of the fact that they were beneficiaries under the provisions of the J. T. Gillett will. The executors as appellees contend that the appellants were not beneficiaries under the will but were merely permissive tenants during the crop years involved. Appellants’ three points are that (1) the trial court erred in holding that the appellants were not beneficiaries under the provisions of the last will and testament of J. T. Gillett, deceased, and were not therefore entitled to receive rents arising from the sale of crops during the crop years 1962-63 and 1963-64 for the reason that the terms and provisions of the will show as a matter of law that appellants were beneficiaries and entitled to such crop rents; or that (2) together with the facts presented, the will shows a clear intent of testator to devise the use of the surface of the Gillett farm to the appellants for the two years involved; and (3) the trial court erred in not entering judgment accordingly.

J. T. Gillett, prior to his death, owned a farm in Nueces County consisting of 975.04 acres. For many years the Setliffs farmed the land under a contract with Gillett. Originally appellant Ray Setliff, the father of Roland and Leonard Setliff, farmed and occupied all or a portion of the Gillett farm for a number of years prior to 1958 but did not farm any of the land after that date. Roland Setliff, one of Ray Setliff’s sons, occupied and farmed a portion of the land for many years prior to 1962. The other son Leonard occupied and farmed the remaining portion of the farm ■ for many years prior to 1962. All of the appellants occupied and farmed the Gillett land under a rental agreement whereby appellants Roland and Leonard Setliff, and prior to the year 1958, appellant Ray Setliff, were paying as rent under an agreement with J. T. Gillett deceased, one-third of the grain crop and one-fourth of the cotton crop harvested and in addition one-third of all government monies received under the government retirement program.

J. T. Gillett executed his last will and testament on April 17, 1963. Six days later, on April 23, 1963, Gillett died. The three independent executors named in his will qualified on May 13, 1963 and have served up to and including the time judgment was entered. At the time of Gillett’s death appellants Roland and Leonard Setliff were farming and had growing crops on the land under the rental agreement above mentioned.

The provision of the will that we are called upon to construe is designated paragraph “Fifth” and reads as follows:

“FIFTH: It is my will and desire and I do hereby direct that my good friends, Ray R. Setliff, Roland Setliff and Leonard Setliff be permitted to remain on my farm in Nueces County, Texas, until the same is sold by executors to make distribution hereunder.”

The appellants argue throughout their brief that this provision of the will devised to them the occupancy and use of the surface which carried with it the rents and revenues produced therefrom.

Prior to the instigation of the suit, but after Gillett died, Roland voluntarily paid to the executors of the estate of J. T. Gillett the landlord portion of the crop rental for the crop year 1962-63. Appellant Leonard Setliff also voluntarily paid his landlord’s portion of the rent to the executors of the estate for the crop years 1962-63 and 1963-64. Appellees contend that Roland and Leonard Setliff are bound by the construction which they originally gave to the will by voluntarily paying the crop rent. Ap-pellees argue that the appellants paid this crop rent a long time after the will had been probated in strict accordance with their prior tenancy agreement and in accordance with the construction of the will as it is now construed by the executors and exactly contrary to • the construction they now urge here. Appellees contend that where there is no ambiguity or doubtful meaning in a clause in a will under construction, the parties are bound by the construction given to it by their acts. The appellants answer this contention by stating that such voluntary rent payment was made under a mistake.

We must consider some of the most fundamental principles governing construction of wills. First, every provision of the will must be considered to ascertain the purpose and testamentary intent. Next, a will should ordinarily be construed with respect to circumstances existing at the time of its execution. In determining the testamentary intent, the physical facts that existed at the time that the testator made his will may be considered so that other clauses in the will may harmonize with such physical facts. Where we are required to interpret a provision in a will the court must consider the instrument from its four corners. See 61 Tex.Jur.2d, Wills, § 128, et seq.; Bergin v. Bergin, 159 Tex. 83, 315 S.W.2d 943 (1958); Kelly v. Womack, 153 Tex. 371, 268 S.W.2d 903 (1954); Harrison v. Brown, 416 S.W.2d 613 (Tex.Civ.App.— Corpus Christi 1967, wr. ref., n. r. e.); Haile v. Holtzclaw, 414 S.W.2d 916 (Tex.Sup.1967). Following these guide lines we look at all of the testator’s will.

In item “First”, he directed that all his just debts be paid. Item “Second”, he gave, devised and bequeathed unto his wife his home, the furnishings, furniture, savings account, bank stock, an undivided royalty interest in the Gillett farm, and provided that the royalty interest bequeathed should terminate upon the death of his wife and vest in the then owner of the land. In paragraph “Third”, he gave, devised and bequeathed to sixteen certain named persons a specific sum of $5,000.00 and $10,000.00 to the Methodist Church at Lockhart, Texas. Item “Fourth” was his residuary clause, wherein he gave, devised and bequeathed the rest and residue of his estate to his wife, the Methodist Home at Waco and the Golden Age Home in Lockhart in certain undivided percentage interests. Thereafter, came Item “Fifth” concerning the Setliffs and the Sixth and final item was the appointment and direction of his independent executors and setting forth their duties and obligations. He therein authorized and empowered his executors to grant, sell and convey his entire estate except the items named in “Second” above (which he gave to his wife), at public or private sale for the purpose of paying his debts, expenses and in making a distribution of his estate.

At the time the testator made his will he recognized that the appellants had individually or collectively farmed all or portions of his farm in Nueces County. It was stipulated that appellants had always paid the rental in strict accordance with their rental agreement. Paragraph “Fifth” recognizes these facts in precatory language, by directing his executors to permit the Setliffs “to remain on my farm in Nue-ces County” until the same is sold by them. The Supreme Court of Texas in Tinkle v. Sweeney, 97 Tex. 190, 77 S.W. 609 (1903) held that the word remain has been defined as “(1) To stay behind after others have withdrawn; * * * (2) To continue unchanged in place; * * * to stay * * We hold that the use of the words “be permitted to remain” clearly evidences an intent of the testator of giving the Setliffs the privilege of remaining on the farm under the previous contract agreements. To construe the words otherwise as devising a title or an estate in the land would do violence to the plain intentment of the testator when considered in the light of the entire will. The testator had disposed of his entire estate before he had reached item “Fifth” concerning the appellants. The testator knew how to “give, grant, devise and bequeath” and he did so to his wife, to sixteen individuals and to three eleemosynary institutions. If the testator had wanted to devise an estate to the appellants by his will, the will itself indicated that he knew how to do so by the clear language set forth therein. If the testator had wished to have changed the relationship of landlord and tenant that existed between the appellants and himself he could have indicated such a change, rather than by using the language of permitting the Setliffs “to remain” on his farm. We do not construe the testator’s will as creating an estate in the appellants any greater than that which existed at the time the will was executed and the landlord-tenant relationship was in effect.

The will in no uncertain language authorized and empowered the executors to sell the farm and to make distribution in accordance with the terms of the will. The will provided that the Setliffs could remain on the farm until the same was sold. The will provided that the rest and residue of the estate was to be devised to his wife and two institutions. The will provided that the royalty interest (of the farm) was granted for life to the testator’s wife with the remainder to the new owner of the farm upon her death. We do not believe that the appellants were granted any estate greater than the privilege of remaining on the farm under the same terms and conditions which existed at the time the testator’s will was drawn until the property was sold. Cruse v. Reinhard, Tex.Civ.App., 208 S.W.2d 598, wr. ref., n. r. e.

Appellants rely on the case of Ruble v. Ruble, Tex.Civ.App., 264 S.W. 1018, n. w. h. This case is distinguishable upon the facts. The Setliffs were not related to the testator and here they had been actually paying rents for a number of years to the testator. They had no right to the revenue from the farm by reason it was their homestead, inheritance or by any other theory. By paying the crop rent long after the will had been admitted to probate (to the named executors) we believe the appellants have evidenced a like construction of the will as we have given it herein. Appellants’ points are overruled.

Judgment of the trial court is affirmed.

Concurring Opinion

SHARPE, Justice.

I concur in affirmance of the judgment. In my view, certain phases of the case merit further analysis, consideration and discussion. Although I am in accord with the result, I do not agree with some of the statements and conclusions in the majority opinion and will, therefore, state separately my reasons for affirmance.

The material facts are' undisputed. They were established by a written stipulation and to some extent by agreement in the pleadings. Mr. J. T. Gillett died on April 23, 1963 after having six days prior thereto executed a will which created an independent administration. During his lifetime Mr. Gillett owned a farm in Nueces County, Texas, which over a long period of time had been farmed by one or more of the Setliffs, appellants here. At the time of Mr. Gillett’s death, Roland and Leonard Setliff were the tenants on separate portions of the farm. Their father, Ray Setliff, had been a tenant prior to 1938, but had not farmed the land since that year. The owner’s or landlord’s rent which the tenants agreed to pay Mr. Gillett was one-third on grain, one-fourth on cotton, and one-third of Government payments under the Acreage Retirement Program. The controversy here involves only crops which matured or payments which accrued after Mr. Gillett’s death. All amounts owing to him prior to the crop year 1962-1963 had been paid. The questions presented relate only to the owner’s or landlord’s rent payable by the tenant. The terminology used by the parties in referring to the landlord’s rent varies somewhat, but the term most frequently used is “crop rents”.

Roland Setliff paid $4,942.07 to the executors of Mr. Gillett’s estate as the landlord’s rent for the crop year 1962-1963. He did not pay the landlord’s rent for the crop year 1963-1964 amounting to $8,592.75 on grain and cotton and $830.34 on the Acreage Retirement Program. However, after the executors sued him, Roland Set-liff tendered such amounts into the registry subject to the determination of the court. Leonard Setliff paid to the executors the landlord’s rents for the crop year 1962-1963 in the amount of $3,503.02, and for the crop year 1963-1964 the amount of $4,897.85. The farm was sold by the executors on August 1, 1964. None of the Setliffs conducted farming operation thereon subsequent to the crop year 1963-1964.

The provision of Mr. Gillett’s will with which we are most directly concerned is the fifth paragraph thereof which reads as follows:

“FIFTH: It is my will and desire and I do hereby direct that my good friends, Ray R. Setliff, Roland Setliff and Leonard Setliff be permitted to remain on my farm in Nueces County, Texas, until the same is sold by executors to make distribution hereunder.”

This suit was instituted by the executors on October 20, 1964 against Roland Setliff as the sole defendant. They sought recovery of the landlord’s rent which had not been paid for the crop year 1963-1964, for possession of that portion of the farm occupied by Roland Setliff, and for injunctive relief. The last-mentioned issue passed out of the case.

On November 13, 1964 Roland Setliff filed an answer to the executors’ original petition and in addition filed a cross-action complaining not only of the executors who were original plaintiffs, but also against all of the twenty beneficiaries named in the second, third and fourth paragraphs of Mr. Gillet’s will as cross-defendants. Among other things the cross-action alleged the following:

“That Cross-Plaintiff is entitled to recover of and from Cross-Defendants the sum of Four Thousand Nine Hundred Forty Two Dollars and 07/100 ($4,942.-07), the sum paid by mistake to Cross-Defendants, A. H. Fielder, Newton W. Wilson, Jr., and W. P. Clark, Independent Executors, from the sale of crops produced during the crop year 1962-1963, and is entitled to retain all of the rents and revenues produced, and which were sold, as a result of the 1963-1964 crop year. In this connection, Cross-Plaintiff would show that he was, and is, entitled to all of the rents and revenues received from the sale of Crops produced on said land during the crop years 1962-1963 and 1963-1964, by virtue of the terms and provisions of the Last Will and Testament of J. T. Gillett, and in particular under the provisions of Paragraph FIFTH, said Will and Testament having devised to Cross-Plaintiff an estate in said lands for a term, to-wit: until said land was sold by said Executors in the year 1964 and after all of the crops in said land had been harvested and sold. That Cross-Plaintiff as owner of the estate for a term of years, to-wit: from the date of the death of J. T. Gillett until said lands were sold, was entitled to full possession and use of said lands and to the rent and revenues produced therefrom, as aforesaid.”

The cross-action of Roland Setliff further alleged that a dispute existed between the parties over the interpretation and construction of the will of J. T. Gillett, and there was a need for a judicial construction of the will and paragraph fifth thereof. The prayer of the cross-action was in substance for a judicial construction of the will in accordance with the contentions made by Roland Setliff, and that he recover all amounts paid by him on account of crops produced by him during the crop year 1962-1963, and that he be allowed to retain all crop rents and revenues for the crop year 1963-1964.

On June 8, 1965 Leonard Setliff filed a petition in intervention complaining of all parties named as cross-defendants by Roland Setliff, and also complaining of Roland Setliff. Among other things, Leonard prayed for a construction of the will. Although his petition in intervention made allegations of fact similar to those contained in the cross-action of Roland, there was at least one important difference concerning the theory of recovery. Paragraph III of Leonard’s petition in intervention read as follows:

“That this Intervenor, under the terms of said Will, is entitled to his one-third (l/j) share of all of the rents and revenues heretofore paid by mistake by this Inter-venor as set out in Paragraph I of the Pleading. That this Intervenor, under the terms of said Will, is further entitled to his one-third (½) share of all the rents and revenues heretofore paid by mistake by Defendant and Cross-Plaintiff, Roland Setliff, to Plaintiffs and Cross-Defendants, A. H. Fielder, Newton W. Wilson, Jr., and W. P. Clark, Independent Executors, for the crop year 1962-1963, for that portion of said farm occupied by the said Roland Setliff, such sum of money being set out in Defendant and Cross-Plaintiff, Roland Setliff’s, ‘Cross-Action’ on file herein. That this Intervenor, under the terms of said Will is further entitled to his one-third (½) share of all the rents and revenues from said farm in the possession and control of the said Roland Setliff for the crop year 1963-1964.”

Paragraph IV of the petition in intervention read in part as follows:

“That this Intervenor, Ray B. Setliff and Roland Setliff, are each under the terms of said Will and in particular under the terms of Paragraph ‘FIFTH’, co-owners of the estate for years in said farm, to-wit: ‘until said land was sold by said Executors’.”

Paragraph V of the petition in intervention read in part as follows:

“ * * * That all such rents and revenues so held and claimed by said Plaintiffs and Cross-Defendants A. H. Fielder, Newton W. Wilson, Jr., and W. P. Clark belonged to and are owned by this Inter-venor, Roland Setliff and Ray R. Set-liff in equal shares.”

The prayer of the petition in intervention read in part as follows:

“WHEREFORE, PREMISES CONSIDERED, this Intervenor prays that he be allowed, by means of this petition to intervene in said suit, and that on final hearing hereof to have Judgment of and from said Plaintiffs and Cross-Defendants for one-third (½) of all monies paid by this Intervenor to said Plaintiffs and Cross-Defendants which one-third (½) is the amount of Two Thousand Eight Hundred Dollars and 29/100 ($2,800.29); for Judgment of and from said Plaintiffs and Cross-Defendants for one-third of all monies paid by the said Roland Set-liff to said Plaintiffs and Cross-Defendants, which one-third (1/3) is the amount of One Thousand Six Hundred Forty-Seven Dollars and 32/100 ($1,647.32) ; for Judgment of and from said Roland Setliff for one-third ((½) sic. of all crop rents and revenues produced on said land farmed by the said Roland Setliff for the crop year 1963-1964; * * *”

On June 8, 1965, Ray Setliff filed a petition in intervention complaining of the said cross-defendants and also of Roland Setliff. Ray’s theory of recovery was substantially the same as that relied on by Leonard in his petition in intervention, and in effect was that he should recover one-third of the amounts paid by Roland and Leonard as crop rents or retained by Roland; that is, the amounts which would ordinarily have been the landlord’s rent under the agreements in effect prior to the will.

On October 20, 1966, Roland Setliff filed an Amended Cross-Action in which he conformed his theory of recovery in general terms to that relied upon by Leonard and Ray. In part he alleged the following:

“Under the terms and provisions of the Will of J. T. Gillett, and in particular Paragraph FIFTH thereof, Cross-Plaintiff and his father, Ray R. Setliff, and his brother, Leonard Setliff, are beneficiaries, and as such were and are entitled to all of the proceeds derived from crops produced and sold on the J. T. Gillett farm during the crop years 1962-1963 and 1963-1964, share and share alike.”

It thus appears from the final state of the Setliffs’ pleadings, in the light of the stipulated facts, that they recognized the tenancy contracts; and did not contend that no rents were owed. Instead, it appears that their position was that under the will the landlord’s rent was owed to themselves in equal shares. Otherwise stated, the ultimate position of the Setliffs in the trial court was that under the will they were entitled to recover or retain in equal shares the amount of the landlord’s rents for the two crop years in question.

The pleadings of appellees (the executors of the estate and the beneficiaries under the will who were named as cross-defendants) in the lower court in the light of the stipulated facts, was in substance that the will of J. T. Gillett and the fifth paragraph thereof merely extended to the Set-liffs the privilege of continuing their farming operations under and by virtue of the previous tenancy agreements between them and Mr. Gillett and that the Setliffs were still obligated to pay the landlord’s rent for the use of the farm.

The trial court rendered its judgment in the context hereinabove stated. The effect of the judgment was to allow the executors to retain the amounts theretofore paid by Roland and Leonard Setliff and to recover the remaining amounts not theretofore paid as crop rentals but which had been tendered into court; and to deny the Setliffs any right to or' recovery of such crop rents or landlord’s rents under the construction of the will contended for by them.

In support of the trial court judgment, appellees urge three counterpoints in this court reading as follows:

“FIRST COUNTERPOINT
“The Trial Court was correct in holding, as a matter of fact and as a matter of law, that Appellants were not entitled to receive the landlord’s portion of the rents arising from farming operations during the crop years 1962-1963 and 1963-1964.
“SECOND COUNTERPOINT
“The Trial Court was correct in holding that Appellants were not entitled to the landlord’s portion of the crop rents involved herein under the provisions of the Will and the facts presented, since the terms and provisions of the Will, in the light of the facts, establish that the clear intent of the Testator was to permit Appellants to continue to farm the land under the same arrangements as had existed prior to and on the date of the Will.
“THIRD COUNTERPOINT
“The Trial Court was correct in entering Judgment for Appellees and in not entering Judgment for Appellants for the landlord’s crop rents for the years 1962-1963 and 1963-1964.”

In my view, these counterpoints are well taken and should be sustained.

Appellants’ first two points assume that the trial court found or held that they were not beneficiaries under the will of J. T. Gil-lett and denied them a recovery for that reason. In my view, there is nothing in the record to support that assumption. It is apparent to me that what the trial court held was that appellants were not beneficiaries under the will to the extent claimed by them. Under appellants’ proposed construction of the will they would have been entitled to retain not only the tenant’s share of the crops and Government payments but the landlord’s rent as well. While the trial judge rejected this contention, this does not mean that he found or held that appellants were not beneficiaries in any way. It is clear to me that the appellants were beneficiaries under the will to a limited extent and that the trial court, consistent with its judgment, could have and did so conclude. In my view, the benefit conferred upon appellants by the will was limited to the right to remain on the Gillett farm as tenants for a period of time after Mr. Gillett’s death until the property was sold. In other words, appellants were entitled under the will to continue their tenancy on the farm for a longer period of time than they would have without it. The testator undoubtedly intended that appellants be not removed as tenants until the farm was sold, provided they desired to remain in that capacity. The benefit to appellants under the will was that the duration of their tenancy was extended by it for an additional period of time beyond that under the existing agreement.

In support of their contentions here appellants rely heavily on the case of Ruble v. Ruble, 264 S.W. 1018 (Tex.Civ.App., Waco, 1924, n. w. h.). That case involved a controversy between Mrs. J. G. Ruble, the second wife and surviving widow of the testator, on the one hand, and other devisees and legatees who were children and grandchildren of the testator by his first marriage, on the other hand. The question presented was whether the widow or the other beneficiaries under the will were entitled to proceeds of crops harvested within six months of the testator’s death. The will contained ths following provision:

“It is my will and desire that my wife, Rosa Lee Ruble, shall have six months after my death to vacate the premises of our homestead, and no action shall be taken against her during the first six months in order to force or coerce her to vacate.”

The trial court held against the widow and the Court of Civil Appeals reversed and rendered judgment in her favor, holding in part as follows:

“We think the testator used the term ‘homestead’ in the paragraph of his will before us for construction in the same sense in which he used said term in the preceding paragraph above referred to. Notwithstanding such tract of land was community property of his former marriage, he seems to have held and treated it as his separate property during his lifetime, and to have disposed of it as such by said will at his death. Having treated said entire tract as his homestead in said will, the testator saw fit to permit his surviving wife to continue to occupy same for a period of six months after his death, and to limit her right to such occupancy to such period of time. Until she was required by the terms of said will, under which she elected to take, or, by necessary implication from the provisions contained therein, to vacate said premises and and to surrender the possession thereof she held and occupied the same as her homestead. The right of the surviving wife to use and occupy the homestead includes the right to receive and enjoy the rents and revenues thereof, notwithstanding such homestead was the separate property of the husband and the legal title thereto immediately upon his death passed by descent or devise to others. McAllister v. Godbold (Tex.Civ.App.) 29 S.W. 417, 418, and authorities there cited.”

It is apparent that in Ruble the right of the widow to receive the landlord’s share of the crops was based upon her homestead rights given to her by law and the recognition of same by the will (under which she had elected to take) for a period of six months. In that case there was no contention by tenants that they were entitled to retain the landlord’s rents. In my view, Ruble does not furnish support for appellants’ position here.

In support of their contentions here ap-pellees cite the case of Cruse v. Reinhard, 208 S.W.2d 598 (Tex.Civ.App., Beaumont, 1948, wr. ref. n. r. e.). One of the several points is that case involved codicil. Three reading in part as follows:

“It is my will and wish that my daughter Ethel continue to live in my home till and unless she wishes to change her residence, * * *»

The daughter, Mrs. Ethel Mouton, occupied a portion of the home. Other portions of it were rented to third parties who paid rent to the Estate. Mrs. Mouton contended that under said codicil she was entitled to the rentals paid by the third parties. The trial court agreed and vested Mrs. Mouton with an interest in the property which seemed to have all of the incidents of a life estate upon conditional limitation but without power of alienation. The Court of Civil Appeals disagreed with that view and held that Codicil-Three did not bequeath to Mrs. Ethel Mouton the rentals from the testatrix’ home. The Court pointed out that it was the right to live in the home, not the home itself which was devised; The Court in part said,

“The limitation upon Mrs. Mouton’s interest — automatic termination upon Mrs. Mouton’s abandonment of the property, for which Codicil-Three clearly provides — prevents alienation of this interest. Lack of power to alienate is consistent with and indicates a mere right of occupancy, but is inconsistent with a life estate, which may ordinarily be conveyed.”

The Court further held that Mrs. Mouton’s right of occupancy was non-transferable because it automatically terminates when she abandons the property. The Court of Civil Appeals further pointed out that the failure of the testatrix to mention income in Codicil-Three was significant, and that if she had intended to except the rentals earned by her home from the general bequest made in another provision of the will she would have expressly so provided in Codicil-Three. Cruse v. Reinhard is by analogy favorable to appellees’ position here. Appellants herein could not sell their right to remain on the farm, and it appears that such right to remain would terminate upon abandonment or when the property should be sold. Paragraph Five of the will herein does not mention the subject of the landlord’s rent from crops or Government payments. Such omission is significant in view of the manner in which the testator’s property was devised and bequeathed in other paragraphs of the will, and shows that the testator did not intend that appellants’ right “to remain” carried with it the additional right to the landlord’s rent.

Appellees also cite the case of Tinkle v. Sweeney, 97 Tex. 190, 77 S.W. 609 (1903). In that case the court was concerned with the term “to enter and remain.” The court particularly considered the dictionary definitions of the word “remain” along with its synonyms, and quoted from an opinion of the Supreme Court of Wisconsin, as follows : “The word ‘remain’ presupposes and implies something that exists or continues after some other time or event.” Baldwin v. Ely, 66 Wis. 171, 198, 28 N.W. 392, 404. Tinkle is authority for appellees’ position here that Mr. Gillett’s will simply provided for a continuation of what had preceded it. In my view the correct meaning was and is that the tenancy of appellants would be continued for a period of time beyond that for which it might have otherwise extended, but with the obligation on the part of the tenants to pay the landlord’s rents.

In this case it is shown that the executors of Mr. Gillett’s estate permitted Roland and Leonard Setliff, two of the appellants who were the tenants at the time of Mr. Gillett’s death, to remain on the farm for the remainder of the crop year during which Mr. Gillett died and for an additional crop year until the property was sold. In my view, the only benefit flowing to Ray Setliff under the will was that he could have farmed the land along with his two sons as tenants if he so desired; but he did not do so. Even if he had, the tenants’ portion of the crops or Government payments would not have been enlarged. There could have been an accounting and settlement between the Set-liffs as to their respective interests in the tenants’ portion, but appellees would not be concerned with the same.

In my view, the trial court rendered the proper judgment and for the reasons stated herein I have voted to affirm it.


author: SAM D. JOHNSON, Justice.

text:
    Rosa Nell ROBINSON et vir, Appellants, v. Bernice C. CRUMP, Sr., Appellee.
    No. 31.
    14th Court of Civil Appeals of Texas. Houston.
    Nov. 29, 1967.
    Rehearing Denied Dec. 20, 1967.

      David J. Nagle, Houston, for appellants.
    Robert W. Alexander, Elmo Schwab, McLeod, Alexander, Powel & Apffel, Galveston, for appellee.
   SAM D. JOHNSON, Justice.

This is an automobile collision case. The plaintiffs, who are man and wife, were occupants of a motor vehicle which was stopped on the Galveston Seawall Boulevard to permit a car immediately ahead of them to back into a parking spot. While stopped, they were run into from the rear by a car proceeding in the same direction and being operated by the minor defendant, Bernice Crump, Jr. The owner of the motor vehicle being operated by Bernice Crump, Jr. was Bernice Crump, Sr. In response to numerous special issues, the jury found no specific acts of negligence on the part of either the minor defendant driver, Bernice Crump, Jr., or the defendant owner of the second vehicle, Bernice Crump, Sr. The jury further found that the collision was the result of an unavoidable accident and, in response to the damage issue, found damages in the amount of $1,000.00. Judgment was entered that plaintiffs take nothing, from which judgment they appeal.

The initial contention is that the trial court erred in striking that portion of the plaintiff’s pleading containing general allegations of negligence because plaintiffs had indicated an intention to rely upon the doctrine of res ipsa loquitur. Citing Bond v. Otis Elevator Co., Tex., 388 S.W.2d 681, appellant contends that the doctrine was appropriate in this instance because the circumstances here evidence facts whereby negligence may be inferred from the mere fact that the accident happened in that the character of the accident and the circumstances attending it lead reasonably to be the belief that, in the absence of negligence, it would not have occurred, and the vehicle which caused the injury is shown to have been under the management and control of the alleged wrongdoer.

This contention cannot stand. Here the appellee pled and apparently established to the jury’s satisfaction that the sole cause of the collision was the sudden and unexpected failure of the brakes on the defendant’s car. Here the appellee pled and the jury affirmatively found unavoidable accident. The fact that the occurrence involved may warrant an inference of presumption of negligence does not compel it. “When all the facts connected with the occurrence fail to point to any particular cause of the * * * injury, but merely show the state of affairs or some intervening circumstance from which an inference could reasonably be drawn that the injury was due to some cause other than the negligence of the defendant, the rule of res ipsa loquitur has no application.” Tuscany v. United States Standard Products Co., 243 S.W.2d 207 (Tex.Civ.App., Dallas 1951, no writ history).

We sustain appellee’s motion to strike appellants’ bill of exception. The order overruling appellants’ motion for new trial was entered April 19, 1967. Fifty-one days later, on June 9, 1967, appellants’ bill of exception was filed and on the same date, the trial judge signed an order which allowed the court reporter’s transcription of the defendant attorney’s jury argument as a bill of exception. Rule 381, Texas Rules of Civil Procedure provides that the party appealing shall have fifty days after the rendition of final judgment or order overruling motion for new trial within which to prepare and file his bill of exception in the trial court. Appellants made no motion to the trial court or to this court to extend the time for filing and in response to appellee’s motion to strike, have failed to show good cause for such late filing.

“It is true that where no motion for an extension of time has been filed in the Court of Civil Appeals that the trial judge has complete control over the filing of the statement of facts in the trial court, and if the same is not filed within fifty days allowed by Rule 381, T.R.C.P., then, ordinarily, there must be an order of the trial judge extending that time, and if the statement of facts is filed in the trial court after the fifty days, without the time having been extended in any way by the trial judge, such a filing is a nullity and does not meet the requirements of Rule 381, and the appellate court will not consider a statement of facts not filed within the fifty days, or filed after the fifty day period without leave of the court. Seaboard Fire & Marine Insurance Co. v. Halbert, Tex.Civ.App., 173 S.W.2d 180; Jaeger v. Cullen, Tex.Civ.App., 183 S.W.2d 584; Parrish v. Parrish, Tex.Civ.App., 214 S.W.2d 700.” McKay v. Kelly, 225 S.W.2d 992 (Tex.Civ.App., San Antonio 1949, n. r. e.). We believe that this reasoning, at the time applicable to the statement of facts, is applicable to the case at bar involving a bill of exceptions.

“The preparation, presentation to the trial court, and filing of a proper bill of exceptions is not an informality, but is a formal way of preserving claimed error. Rule 372, T.R.C.P.” Sarah Coventry, Inc. v. Blanch-Ette, Inc., 381 S.W.2d 636 (Tex.Civ.App.1964, n. r. e.). As appellants’ bill of exception was not timely filed, the jury argument complained of is not properly before this court by way of a bill of exception and the points of error in this regard must be overruled.

Appellant contends that the trial court erred in failing to retire the jury at his request to resolve an alleged conflict in two special issue findings and in accepting, over his objection, the jury verdict containing the alleged conflict. Appellant contends there is a conflict in the jury’s finding of unavoidable accident and in the finding of $1,000.00 in response to the damage issue. First, there is no statement of facts before the court and no bill ■ of exception indicating the alleged rulings of the trial court complained of. There is no record before this court to support appellants’ contention as to the action of the trial court and same is overruled. Further, there is no material conflict in the two findings. “After the jury had answered all other issues than those on damages in a manner so as to acquit appellee of an act of negligence that was a proximate cause of the collision, the damage issues became immaterial. Garza v. San Antonio Transit Co., Tex.Civ.App., 180 S.W.2d 1006, writ ref., w. m.” Smith v. Whitehead, Tex.Civ.App., 363 S.W.2d 369, no writ history.

The judgment is affirmed.


author: TUNKS, Chief Justice.

text:
    John W. L. HICKS, Appellant, v. The STATE of Texas, Appellee.
    No. 55.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Dec. 6, 1967.
    Rehearing Denied Jan. 3, 1968.
    C. C. Divine, Houston, for appellant.
    Glynn W. McDonald, Gay Brinson, Jr., Houston, for appellee.
   TUNKS, Chief Justice.

This is a disbarment proceeding.

The State of Texas, acting by and through members of the Grievance Committee of the State Bar of Texas for the 22nd District of Texas, filed the suit seeking the disbarment of John W. L. Hicks, a licensed attorney of the State of Texas. A trial was had before a jury and resulted in a judgment of disbarment. The defendant, Hicks, appeals, contending that there was no evidence of fraud or malpractice on his part, that the evidence was insufficient to support the jury’s findings, that the jury’s findings were against the weight of the evidence so that the judgment of the trial court should be reversed and judgment here rendered in his favor, or, in the alternative, that the judgment of the trial court be reversed and the case be remanded for further trial.

One of the former clients of Hicks, whose complaint against him was a subject matter of this suit, was named Mrs. Gaines. She testified that on December 31, 1955, she, at the request of her doctor, entered a hospital for treatment. While in the hospital, she lost a baby and underwent an operation. She was discharged from the hospital in April of 1956. On May 27, 1958, she conferred with the defendant, Hicks, concerning a malpractice suit to be filed in her behalf because of the treatment she received while she was in the hospital. On that occasion, Hicks accepted a fee of $100.00 which she paid him. In January, 1959, she paid Hicks an additional $125.00. On many occasions subsequent to her original employment of him in May, 1958, Hicks told her that her lawsuit had been filed. Those statements were false. The lawsuit was not filed until August 3, 1960, after complaint had been made against Hicks.

Hicks testified that the original agreement between him and Mrs. Gáines was to the effect that she should pay him $250.00 to investigate her claim to determine whether it was or was not a valid one. He further testified, in substance, that he believed the Statute of Limitations had not run at the time of his acceptance of employment, nor at the time of his filing the lawsuit because the full extent of the injuries suffered by Mrs. Gaines was not then known.

The jury, in response to special issues, found that Hicks represented to Mrs. Gaines that he had filed the lawsuit before such suit was actually filed; that such conduct was malpractice as that term was defined by the court; that such misrepresentations constituted fraudulent conduct, as that term was defined by the court; that such misrepresentation constituted dishonorable conduct, as that term was defined by the court; and that the failure of Hicks to file the lawsuit until August 3, 1960, was malpractice.

Another of the complainants against Hicks, a Mrs. McGruder, testified that she went to Hicks in 1960, to hire him to get a divorce for her. Hicks told her that he would charge her $125.00 to represent her in her divorce case. He told her that it would take about two months to get the divorce. She did not have the money with which to pay his entire fee at the time, but she made weekly payments until the entire $125.00 had been paid sometime during the year 1961. On a number of occasions, Hicks told her that the divorce had been filed, when, in fact, it had not been. Hicks neither got the divorce for her, nor returned the $125.00 she had paid him.

Although the record is not entirely clear on the matter, it appears that the petition for divorce for Mrs. McGruder was filed by Hicks after she had made a complaint of him to the Grievance Committee, and that the suit was ultimately dismissed for want of prosecution.

Hicks testified that the original agreement between him and Mrs. McGruder was to the effect that she should pay him a fee of $250.00 to represent her, that the reason he did not file the lawsuit was because she never did pay the full fee and she refused to cooperate with him in getting a waiver of citation signed by her husband. He also testified that he himself undertook to locate the husband and was unable to do so and that Mrs. McGruder refused to advance the money with which to pay the cost of citation by publication.

The jury found that Hicks falsely told Mrs. McGruder that he was actively prosecuting the suit for divorce; that such misrepresentations were dishonorable conduct, fraudulent conduct and malpractice; and that the failure of Hicks to prosecute Mrs. McGruder’s divorce constituted malpractice.

Another of the complainants, a man named Hardy, testified that he employed Hicks to file suit for divorce in his behalf and to get custody of his child. He testified that the agreement was to the effect that he should pay Hicks a fee of $125.00 for his services in the proceeding. He, too, did not have the money with which to pay his entire fee in advance, but ultimately paid all of it by the week. Hicks told him the suit for divorce had been filed, when, in fact, Hicks had filed no such suit for him. Shortly after he employed Hicks, Hardy’s wife filed suit for divorce. At an ancillary proceeding and on advice of Hicks, Hardy agreed to the entry of an order giving his wife the custody of his child and providing for support payments. After that order was entered, the wife dismissed her suit for divorce. Hicks never filed suit for him or returned his fee.

Hicks testified that the agreement was to the effect that Hardy should pay him a fee of $250.00, that he did not deem it necessary to file suit in behalf of Hardy, nor to file any cross-action in the suit filed by the wife.

The jury found that Hicks falsely represented to Hardy that he, Hicks, had filed his divorce suit; that such false representations constituted malpractice, fraudulent conduct and dishonorable conduct; and that Hicks’ failure to file the suit constituted dishonorable conduct and malpractice.

Another of the complainants against Hicks was a Mrs. Johnson. The evidence showed that in 1960, some equipment in a cafe being operated by Mrs. Johnson was taken by the sheriff under a writ of sequestration. She employed Hicks to get her property back for her. Her testimony was to the effect that Hicks charged her $100.-00 in connection with getting her property back and an additional $50.00 “to file the complaint.” She paid him $40.00 on January 10, 1960; $60.00 on January 13, 1961; and $50.00 on May 5, 1962. Again, the record is not entirely clear, but it appears that the writ of sequestration issued out of a suit that was filed in the Justice Court of Harris County, Texas. Hicks represented Mrs. Johnson in the suit pending in the Justice Court and prevailed in her behalf. An appeal was taken to the County Court and the appeal was subsequently dismissed. On February 28, 1963, Hicks, as attorney for Mrs. Johnson, filed suit in the County Civil Court at Law No. 1 against the principal and surety on the sequestration bond. The surety on the bond was an attorney and at the request of Hicks, filed an answer without any citation having been served on him. Hicks did not cause the citation to be issued and served upon the principal on the bond. No such citation had been issued or served as of the date of this cause in the trial court, April 17, 1967. An examination of the petition filed by Hicks in the County Court case leaves it difficult to determine the nature of the cause of action, if any, stated therein, as to whether it is a suit for the wrongful taking of property or a suit on the sequestration bond. It is therefore difficult to tell when the cause of action accrued or which statute of limitations would be applicable. Nevertheless, whether the two year statute or the four year statute be applicable, it had clearly been barred by the time this case was tried in the trial court.

Hicks justified his conduct in this respect in two ways: first, he said he thought the filing of the lawsuit would toll the running of the statute of limitations without the necessity of getting a service of citation on the defendant principal on the bond; secondly, he contended that the principal was insolvent so that a judgment against her would not be collectable.

The jury found that the failure of the defendant, Hicks, to file suit in behalf of Mrs. Johnson against the principal and surety on the sequestration bond until February 28, 1963, constituted malpractice, and that the failure to secure service of citation on the principal also constituted malpractice.

In its charge to the jury, the court submitted the following definitions:

“By the term ‘malpractice’ as used in this charge is meant the intentional failure to perform a duty owed by an attorney to his client, and may consist of an act, omission or concealment of an attorney with reference to matters in which he has accepted employment.
“By the term ‘fraudulent conduct’ as used in this charge is meant an act, omission, or concealment done, made or affected as an attorney with a purpose, design or intent to carry out fraud or wrong.
“By the term ‘dishonorable conduct’ as used in this charge is meant the doing intentionally of some act, or acts in the discharge of his professional duty, which an attorney endowed with ordinary sense of honor would not have done, or the intentional failure to do that which under the circumstances such an attorney would have done.”

Definitions in the same language were discussed in Rowland v. State, Tex.Civ.App., 55 S.W.2d 133, writ dismd. The definition of “malpractice” was held to be erroneous because the attorney charged with malpractice might not have known what duty he owed, thus permitting a conviction for negligence or error in professional judgment. However, the court held that the definitions of “fraudulent conduct” and “dishonorable conduct” to be correct and that jury findings against the defendant on those issues as to which those definitions applied, supported a judgment suspending the defendant attorney.

Appellant requested the trial court to submit a special issue in the following language:

“SPECIAL ISSUE NO. A
“Do you find from a preponderance of the evidence that at the time of the dealings between the defendant and Mrs. Gaines he acted in good faith ?”

The trial court refused to submit the requested issue. Other special issues in the same general language, but relating to his dealings with other complaining clients, were requested and refused. Appellant, by point of error, challenges the trial court’s refusal to submit these issues.

The refusal to submit the requested issues was not error. The issues submitted by the court (at least those relating to “fraudulent conduct” and “dishonorable conduct”) when considered along with the definitions given, constituted a submission of issues as to the good faith of the defendant and placed the burden on the plaintiff to prove the absence of good faith. Under those circumstances, good faith did not constitute an affirmative defense of such a character that defendant was entitled to have the submission of defensive issues thereon. Furthermore, if the issue of the defendant’s good faith was to be considered an affirmative defense, the court properly refused to submit the requested issues because the defendant did not plead any such defense.

The appellant cites the case of Cook v. Irion, Tex.Civ.App., 409 S.W.2d 475, no writ history. That was a case wherein the recovery of damages was sought against an attorney because of his alleged malpractice. The case holds that an attorney should not be liable for an error in judgment if he acts in good faith. With such a holding we agree. That might exonerate the appellant from any professional misconduct in accepting a fee from Mrs. McGruder when her medical malpractice case was already barred by limitation and in failing to get service of citation on one of the defendants in Mrs. Johnson’s case. The appellant’s lack of understanding of the law as to the Statute of Limitations was not, of itself, malpractice, but the rule announced in Cook v. Irion, supra, would not furnish any basis for excusing the specific false statements made by appellant to his clients, nor his complete failure to file lawsuits for some of them from whom he accepted fees to do so.

The evidence, as above summarized, was sufficient to support the jury’s findings of fact. Those findings, considered in the light of the trial court’s definitions of “malpractice,” “fraudulent conduct” and “dishonorable conduct” constituted professional misconduct as defined in Article XII, Sec. 8 of the State Bar Rules. The trial court properly rendered judgment disbarring appellant in accordance with Article XII, Sec. 28 of the State Bar Rules. That judgment is affirmed.


author: GREEN, Chief Justice.

text:
    GREAT AMERICAN HEALTH AND LIFE INSURANCE COMPANY, Appellant, v. R. L. LOTHRINGER, Appellee.
    No. 353.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 14, 1967.
    Rehearing Denied Jan. 11, 1968.
    Michael W. Wagner, San Antonio, for appellant.
    Reese D. Wade, of Wade, Wade & Newton, Beeville, for appellee.
   OPINION

GREEN, Chief Justice.

Appellee R. L. Lothringer brought suit in the district court of Bee County against Great American Health and Life Insur-anc Company and Texas Reserve Life Insurance Company on an accident policy issued by appellant Great American to his wife, alleging injuries and disabilities to her resulting from a fall in the State Bank and Trust Company of Beeville on April 2, 1959. The pleadings and evidence disclose only one alleged cause of action on the policy, and appellee stipulated in open court that defendant Texas Reserve was joined because it had succeeded to the rights of Great American. After a trial before the court without a jury, judgment was rendered for plaintiff-appellee against both defendants jointly and severally for $6,-000.00. This appeal by Great American is from such judgment. There are no findings of facts or conclusions of law.

This was the second trial of this cause. A former judgment for appellee was reversed and remanded by the 10th Court of Civil Appeals. Texas Reserve Life Insurance Company et al. v. R. L. Lothringer, Tex.Civ.App., 394 S.W.2d 660, n. w. h.

The provisions of the policy relied on by plaintiff insured against “(1) loss or disability resulting solely from bodily injury effected directly and independently of all other causes through accidental means and sustained during the term of this policy” and provided further that “If such injury shall, within thirty days from date of accident and independently of all other causes, totally and continuously disable and prevent the Insured from performing each and every duty pertaining to any occupation, and shall require the personal care and regular attendance of a legally qualified physician or surgeon, other than the Insured, the Company will pay, beginning after the third day of such disability, indemnity at the rate of $100.00 per month, and continuing as long as the Insured remains so disabled, not to exceed seventy-five consecutive months for any one period of disability.”

It was stipulated that insured’s loss or disability was sustained during the term of the policy, and while it was in effect.

Appellant bases his appeal on six points of error, the first three being to the effect that the trial court erred in rendering judgment for appellee in that appellee failed to prove (1) that the alleged injury was independent of all other causes; (2) that insured was totally and continuously disabled and prevented from performing each and every duty pertaining to any occupation; (3) that the injury required the personal care and regular attendance of a legally qualified physician or surgeon. Point 4 is that there was no evidence of probative value to support the judgment. Appellant’s 5th point alleged error in the court’s permitting a certain hypothetical question to be propounded over appellant’s objection, and its 6th point concerned the court’s overruling appellant’s motions for continuance.

Plaintiff alleged in his trial pleading (third amended petition filed March 24, 1967), paragraph III, as follows:

“HI.
“Plaintiff shows to the Court that on or about the 2nd day of April, 1959, his wife, while working for Chester Cavasar’s Used Autos and Auto Parts, at the occupation of bookkeeper and office clerk, the duties of which were keeping books, taking care of cash, making collections, taking papers to the Courthouse and typing correspondence, and while engaged in carrying a deposit for the said Cavasar to the State Bank and Trust Company at Beeville, Texas, entered the lobby of said Bank and slipped and fell on the hard tile floor, landing on her right knee, and, as a result thereof, the said Maymie L. Lothringer suffered total and permanent disability to perform the duties of her occupation, which disability continued from the date of said accident down to the present time, and that by reason of her disability and by reason of the policy of insurance, above mentioned, the Defendants promised to pay Plaintiff the sum of $100.00 per month for 75 months of said disability by reason of the provisions of said contract of insurance.”

A copy of the policy was attached to the pleading, and the pertinent provisions were specifically plead.

The first four points raised by appellant being no evidence points, we shall summarize the testimony to determine if there was evidence to support the implied findings of the court as to each of these points, under the legal principles set forth in Garza v. Alviar, Tex.Sup.Ct, 395 S.W.2d 821.

Appellee’s evidence consisted of the policy and the testimony of Mrs. Lothringer and portions of the written depositions of Dr. Sol Foreman. Defendant placed ⅛ evidence the written deposition of Dr. William H. Ainsworth.

According to Mrs. Lothringer’s testimony, at the time of the accident in 1959 she was in her late fifties, and was a rather heavy person. She' had been a beauty operator, a saleslady, and since January, 1955, bookkeeper and office clerk for Chester’s Auto Parts. In performing her business duties, it was necessary for her to stand on her feet a considerable portion of the time, and to go out on various errands-during the day. She was able to do all of this, and to perform her other duties, and had never had any trouble with either of her knees prior to the accident of April 2, 1959. On that day, while in the bank to make a deposit for her employer, her feet slipped out from under her, and she fell on the right side of her right knee with her leg twisted under her. She was helped up and was able to complete her day’s work and the next day but her leg became so swollen from about the middle of her thigh to about 8 inches below her kneecap and so painful that on Monday, three days after the accident, she went to Galveston to get medical attention. There she was hospitalized for 25 days under the care of Dr. Foreman, who called in Dr. Ains-worth for consultation and treatment. After being released from the hospital she returned to Beeville, and thereafter returned to Galveston for treatment by Dr. Foreman about five times, the last visit being September 14, 1959. She was treated for her knee by Dr. George Barnes on November 11, 1960. So far as shown by the record,

she has not had any medical attention since that date.

Mrs. Lothringer testified that her right knee has continuously given her severe trouble and pain from the time of the accident to the date of trial (March, 1967). When she returned from the hospital she attempted to go back to work at her old position, but due to the swelling and pain in her leg she was unable to perform any of the duties required without severe suffering. She could not sit at her desk or stand for any extended period of time, could not get in or out of an automobile; she would have cramps from depending so much on one leg, and her back was giving her trouble so that she could not do any form of work for any period of time. According to her testimony, her pain and suffering and physical condition continues to get worse, right up to the time of trial.

In addition, plaintiff placed in evidence portions of the deposition of Dr. Foreman, taken in June, 1962, on written interrogatories. Since the disposition of appellant’s first point depends in our judgment on the legal effect to be given this evidence of appellee’s doctor and witness, and the other expert medical evidence, we quote it in full as follows:

Interrogatories and answers
“DIRECT INTERROGATORY NO. 11:
Please give your diagnosis of Mrs. Loth-ringer’s condition?
ANSWER TO DIRECT INTERROGATORY NO. 11:
My diagnosis of her was traumatic sprain and probable bursitis of the patella involving the right knee and osteoarthritis involving the knee.
‡ ‡ ‡ ‡ ⅛ ‡'
DIRECT INTERROGATORY NO. 12:
Please attend the propounding of the following hypothetical question: please assume that Mrs. Lothringer on April 2, 1959, did slip on the hard surface floor of the State Bank and Trust Company of Beeville, and while trying to catch herself did land on her right knee and hand, following which she felt pain in her right knee and has continuously to date suffered discomfort in her right knee. Also, please take into consideration the knowledge and information which you have concerning Mrs. Lothringer’s condition from your observation and treatment of her as set out in response to the above questions, and considering these matters please give us your medical attention with respect to the following questions, to-wit:
(a) State whether or not in your opinion the condition found by you and stated in response to the above interrogatories were in real medical certainty caused by the fall suffered by Mrs. Lothringer on April 2, 1959?
ANSWER TO (a): Yes
(b) State whether or not in your opinion Mrs. Lothringer will in reasonable medical probabilities suffer an impairment permanently as a result of the injury sustained on April 2, 1959?
ANSWER TO (b):
I must state that the permanent portion of this would be from an aggravation of a pre-existing osteo-arthritis involving the patella, the femur, and the tibia.
DIRECT INTERROGATORY NO. 19:
As of the last date of your familiarity with the health of Mrs. Mamie Loth-ringer please state the facts with reference to her impairment, if any, in the following respects:
(d)To do prolonged walking?
ANSWER TO (d):
With reference to prolonged walking to last time I saw her she was extremely scared to do considerable walking and was having to walk by holding her knee stiff for fear of its locking and causing her to fall.
(e) To do moderate walking?
ANSWER TO (e):
The same answer with reference to moderate walking.
(f) To stand for long periods compared to or as distinguished from moderate standing?
ANSWER TO (f):
This too was also restricted in amount.
(g) To do extensive or moderate kneeling ?
ANSWER TO (g):
The last time I saw her she was avoiding kneeling altogether.
CROSS INTERROGATORY NO. 7:
Have you previously examined or treated or examined and treated Mrs. Lothringer for any condition of her right knee; if so, please detail and specify the conditions for which you have examined her and the result of your examination and observation and your diagnosis of her condition of the right knee?
ANSWER TO CROSS INTERROGATORY NO. 7:
At no time in the past have I treated her for any condition involving her knee prior to the hospitalization that I have already summarized in April, 1959.
I saw her and treated her in April 1959, following an accidental fall in which she injured her right knee. I treated her for an acute strain and aggravation of arthritis involving the right knee, involving the patella, tibia and femur and what I considered a traumatic bursitis resulting from same.
******
CROSS INTERROGATORY NO. 22:
What is the condition of Mrs. Lothringer’s knee as of the last date on which you saw her and state the last date on which you saw her?
ANSWER TO CROSS INTERROGATORY NO. 22:
On the 14th of September, 1959, at which time she complained to me that the knee still hurt and she felt it to be still unstable at which time she stated that she was walking with her knee rigid in order to avoid any falls. I do not believe that Dr. Ainsworth instructed her to do this. As I recall she was also on these occasions going to see Dr. Ainsworth for follow-up.
* * * * * *
CROSS INTERROGATORY NO. 23:
Is it not possible that the condition of her knee will return to normal in the future?
ANSWER TO CROSS INTERROGATORY NO. 23:
This is possible but the osteo-arthritis involving the knee is an irreversible process which took many years to develops and when aggravated with a fall such as she had might be a source of further disability, depending on any abuse that she may render the knee or accidental falls or injuries.
******
CROSS INTERROGATORY NO. 24:
With reference to the hospitalization of Mrs. Lothringer from April 15 to May 10, 1959, state the following:
(a) What was the purpose for the hospitalization of Mrs. Lothringer?
ANSWER TO (a):
She was hospitalized for treatment of her injury since it was very difficult for her to come and go to the doctor’s office.
******
(f) Did Mrs. Lothringer require hospitalization because of her chest, thoracic spine, gall bladder, or G.I. series or any one or more and combination of same ?
ANSWER TO (f):
No, these were not the reasons for which I admitted her to the hospital in 1959.
******
CROSS INTERROGATORY NO. 22:
What is the condition of Mrs. Lothringer’s knee as of the last date on which you saw her and state the last date on which you saw her?
******
ANSWER TO CROSS INTERROGATORY NO. 22:
The last date on which I saw her was September 1959. She still complained of soreness in her knee and complained that she was walking stiffly in order to avoid falling or injuring herself.”

After the reversal of the first judgment, Texas Reserve Life Insurance Company et al. v. R. L. Lothringer, Tex.Civ.App., 394 S.W.2d 660, Dr. Foreman again made answers to written interrogatories and stated that in his opinion as a physician, Mrs. Lothringer had reached her maximum recovery from the injury involved herein on September 14, 1959, and that any further care or regular attendance by a physician upon her for her injury and disability would have been useless. This second deposition was also in evidence.

Dr. William H. Ainsworth, whose written deposition taken in June, 1962, was placed in evidence by defendant, testified that he was an orthopedic surgeon; that in April, 1959, he was called upon by Dr. Foreman to see Mrs. Lothringer as a patient in John Sealy Hospital in Galveston; that he saw her daily during her stay there. His diagnosis was that she was suffering from sprain and contusion of the right knee which he related to a fall on April 2, 1959, with pre-existing hypertrophic osteoarthritis of that knee. He further testified that she was suffering primarily from the pre-existing arthritic change in the knee, with emotional instability as a factor in prolonging her convalescence; that hypertrophic osteoarthritis is usually thought to be a degenerative condition and not actually caused by injury; that it is the change seen frequently in the joints as a result of wear and tear or degeneration and is associated frequently with aging.

We shall first consider appellant’s Point of Error No. 1, to the effect that the appellee failed to prove that the alleged injury was independent of all other causes. The statement and argument of appellant under this point clearly reflects that appellant was referring to the legal requirements of proof under the provision of the policy which insured against loss or disability resulting from bodily injury effected directly and independently of all other causes through accidental means. The logical meaning of the policy terms limits the coverage to accidental bodily injuries which are the sole proximate cause of the disability, not merely a concurring cause, and the burden was on the plaintiff to establish by a preponderance of the evidence that her disability resulted solely from accidental means independent of all other causes. Mutual Benefit Health & Accident Association v. Hudman, Tex.Sup.Ct., 398 S.W.2d 110, and authorities cited; Continental Cas. Co. v. Fountain, Tex.Civ.App., 257 S.W.2d 338, wr. ref.; Combined American Insurance Company v. Jordan, Tex.Civ.App., 403 S.W.2d 811, wr. ref. n. r. e.

In Hudman, supra, the question before the- Supreme Court was whether the beneficiary of an accident policy which limited recovery to death from accidental injury “independently of other causes” may recover under the policy when the insured’s death resulted from the combined effects of the injury and a pre-existing disease. Plaintiff obtained a judgment in the trial court, where the case was tried before the court without a jury. The Court of Civil Appeals affirmed, Mutual Benefit Health and Accident Association v. Hudman, 385 S.W.2d 509. The Supreme Court reversed and rendered judgment that the beneficiary take nothing. That' Court summarizes the testimony of the three doctors who testified, one as a plaintiff’s witness and two as defense witnesses, and found that their evidence was in agreement that death resulted from fibrillation of deceased’s heart, and that such fibrillation was shown by the evidence to have been caused concurrently by deceased’s overexertion (the accidental injury) and his diseased heart. The court stated:

“All of the evidence shows that two causes proximately concurred to produce death and the policy limited its coverage to one cause, accidental bodily injury. * * * It took both causes to produce death and but for both, death would probably not have occurred. We conclude that by definition of the policy terms and by logic, the policy coverage was limited to accidental bodily injuries which must be the sole cause of death.”

The opinion quotes with approval from 1A Appleman, Insurance Law and Practice, § 403:

“As a general rule, it has been stated that if there is a pre-existing disorder or illness at the time an injury is received, recovery may still be had if the injury was severe enough to have caused the entire damage or considerable damage, but not if the disease was the proximate cause or principal cause thereof. From this, it has been held that where a disease condition aggravates the result of the injury or is, itself, aggravated thereby, there can be no recovery, where the combined result is to cause the death or disability. This has been particularly supported where the death or disability would not have resulted from the external injury alone, but, with the combination of injury and disease, the loss is produced. * * * ”

When the testimony of the two medical witnesses is examined in the light most favorable to appellee, we find that they agree that though the injuries to insured were related to and a result of her fall on April 2, 1959, her disability was caused by a combination of her external injuries and the pre-existing hypertrophic osteoarthritis in her right knee. Insured’s testimony summarized above did not conflict with or contradict the evidence of the medical experts. She stated that she was in good health and had never had any trouble with her right knee or leg before the accident; but in Hudman, supra, as shown in Justice Pope’s opinion, p. Ill, there was evidence that prior to his death deceased was in apparent good health and had never had a diagnosis of or treatment for heart trouble.

We conclude from all of the evidence as a matter of law that Mrs. Lothringer’s disability was not solely caused by accidental means independent of all other causes; that two causes, the accident and her osteoarthritis, concurred to cause her disability. The pre-existing arthritic condition or disorder testified to by the medical experts was not so remote in the scale of causation, or so dormant and insubstantial, or so temporary and transient, that it did not materially contribute to the injury or her incapacity. Hudman, supra, p. 114. We hold that Mrs. Lothringer’s disability was not covered by the policy in evidence, and sustain appellant’s first point of error. This would apply as to the fourth point, also.

For the reasons stated in (2-3) of the opinion in the former appeal of this case, supra, appellant’s second point is overruled. Appellee, by the second deposition of Dr. Foreman, met the deficiency in the evidence for which the first judgment was reversed and remanded, and its third point is overruled. We have given due consideration to its fifth and sixth points, and find no merit in them. They are overruled.

Plaintiff’s pleadings alleged only one cause of action on the policy in evidence, but included Texas Reserve Life Insurance Company as a defendant along with appellant, for the admitted reason, as stated by appellee’s counsel at the commencement of the trial and on oral argument before this Court that he believed Texas Reserve has succeeded to the rights of Great American. Judgment was rendered jointly and severally against both insurance companies. Texas Reserve did not join in the appeal.

As this court stated in Curtis v. Carey, Tex.Civ.App., 393 S.W.2d 185, 191

“It is the general rule that where one party appeals from a judgment, a reversal as to him will not justify a reversal against the other non-appealing parties. This rule, however, does not apply in cases where the respective rights of the appealing and non-appealing parties are so interwoven or dependent on each other as to require a reversal of the whole judgment where a part thereof is reversed. Lockhart v. A. W. Snyder & Co., 139 Tex. 411, 163 S.W.2d 385, 392; American Indemnity Co. v. Martin, 126 Tex. 73, 84 S.W.2d 697; Appellate Procedure in Texas, Sec. 18.13.”

In view of our holding herein, it is necessary that the judgment of the trial court against appellant Great American Health & Life Insurance Co. be reversed, and judgment here rendered that appellee take nothing against it. This is a proper case to apply the rule above copied from Curtis v. Carey. The judgment against the non-appealing defendant is also reversed and rendered.

Reversed and rendered.


author: BARRON, Justice.

text:
    PIONEER BUS COMPANY, Appellant, v. Rovina WARD, a Feme Sole, Appellee.
    No. 30.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Nov. 29, 1967.
    Lew W. Harpold, Hofheinz & James, Houston, for appellant.
    Warner F. Brock, J. Harold Bates, Brock & Williams, Houston, for appellee.
   BARRON, Justice.

Plaintiff, Rovina Ward, appellee here, brought this suit to recover for personal injuries alleged to be sustained by her on August 19, 1963. She alleged that she received injuries to her shoulder, hand, hip, groin, and knee, while alighting from a bus owned and operated by appellant, Pioneer Bus Company. On the verdict of a jury, the trial court entered judgment in favor of plaintiff, Rovina Ward, for $15,000.00 damages for physical pain and mental anguish (past and future), loss of earnings and loss of earning capacity. Also, the court entered judgment for $500.00 for future medical expenses and $182.00 was stipulated by the parties as a sum actually expended by plaintiff as a result of the accident.

The defendant bus company, appellant, attacks the trial court’s judgment by four points of error, to-wit: in denying defendant’s motion for new trial because:' (1) the jury’s finding of $15,000.00 is exorbitant, excessive, wrong and unjust, and is based upon sympathy, passion and bias for the plaintiff and prejudice against the defendant, and that the verdict is thereby against the greater weight of preponderance of the evidence; (2) because the finding of $500.00 for future medical expenses is wrong and unjust and is against the great weight and preponderance of the evidence; (3) because there is no evidence in the record of past or future mental anguish or future pain; and (4) because the evidence is insufficient in regard to past and future mental anguish and future pain.

The plaintiff does not attack the jury’s answers on the liability issues, nor does it attack the verdict by reason of jury misconduct. No attempt was made to show that the jury in assessing damages considered factors which were improper or that they considered anything except the evidence before them.

The evidence shows that Rovina Ward was about 75 years of age when the accident happened and was employed as a maid doing general household work, and earning $33.00 a week for her personal services. On August 19, 1963, Rovina Ward was returning from work on defendant’s bus. While she was leaving the bus on Wayne Street in Houston, at the rear door of the bus, the door closed on her right leg above the ankle. When she attempted to grab the door, her right shoulder and right hand were also caught in the door, and while she was in this position, the bus moved about five feet before stopping to release her. She testified that she received injuries to her right shoulder, groin, right hip, right leg, right arm and right hand. She testified that the injuries were disabling, that she had not been able to resume her work, and that she could not ever do so again. The injury to her right hand is such that she is unable to grip anything, and she has lost all sensation in her hand. A number of persons testified generally to her disabilities. Such testimony was generally that while Mrs. Ward was not completely bedridden, she could not get up without the aid of someone or unless she used a heavy cane. The moving about was extremely painful and she was unable to keep her lawn, plant trees and flowers and do her housework. It was shown that she was in good physical condition prior to the accident and was exceptionally active for a woman her age.

Dr. James C. Jones, plaintiff’s medical witness, stated that the injuries were permanent and would probably grow worse as the plaintiff became older. He testified that in reasonable probability, she would live from five to twenty more years, based upon his knowledge of her physical condition and her age, and that the weakness in the right leg was permanent. Her right shoulder has improved to some extent, but she still has a partially frozen shoulder. She cannot comb her hair by lifting her arm. When she walks she uses a cane and drags her right foot behind her. She is unable to stand erect, she has a cervical injury, and she cannot bend “way down or way back.” Examination of her right knee revealed marked stiffness. She was unable to flex the knee more than 45 degrees. Dr. Jones testified that surgery was not advisable and that it would probably make her worse. He testified that she would continue to have the pain she is having and that such pain would get progressively worse. He testified that Mrs. Ward necessarily will incur medical expenses in the future. He estimated that about $450.00 a year probably would be fair for future medical expenses. Dr. Jones admitted that some of plaintiff’s difficulty was caused by osteoarthritis, an aging process, but such a disease, we believe, aggravates her condition in view of plaintiff’s good physical condition and freedom from pain before the accident.

Defendant’s medical witness, Dr. Thomas F. Hudgins, Jr., refuted most of this testimony, and he concluded that Mrs. Ward probably had muscle soreness and soreness in her leg to the extent that she could not have worked for a few weeks after the occurrence. He felt that she was capable of doing any of the ordinary duties that a housemaid could do, and he could see no future medical expenses arising as a result of this occurrence. The first doctor to treat Rovina Ward after the accident was Dr. Thomas, who treated her three times a week until Dr. Thomas died in December of 1964. He prescribed medications and gave her deep heat therapy to the involved areas. He treated plaintiff about sixty times from August, 1963 through December of 1964.

From the evidence, some of which was undisputed, the plaintiff obviously suffered severe physical pain and mental anguish. For a person of this type to be reduced to an invalid, unable to take care of her own personal hygiene and perform her own personal duties, is a genuine subject of mental anguish. She has continued to experience what we consider to be severe physical pain. The jury could reasonably have concluded, based on the evidence, that her future medical expense would be much more than $500.00. The figure given by Dr. Jones was merely an estimate. There is ample evidence, and reasonable inferences from such evidence, that plaintiff’s injuries are permanent. The jury was well within the limits of reason in the sums awarded plaintiff. There is nothing in the record to indicate that the jury was guided by any ■motive other than a conscientious consideration of the testimony and the instructions of the trial court. The amount of the verdict does not, as a matter of law, establish bias on the part of the jury. Prejudice or passion must be affirmatively shown, directly or circumstantially, unless the verdict is so excessive that it cannot be accounted for on any other ground. World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962 (Tex.Com.App.), opinion adopted; Brown v. Poff, 387 S.W.2d 101, 106 (Tex.Civ.App.), writ ref., n. r. e. We hold that the verdict of the jury is neither excessive nor the result of passion, prejudice or sympathy.

The defendant alternatively requests that this court order a remittitur to the point of fair and just compensation ijor injuries proven. We decline to order a remittitur, and hold that the verdict of the jury was well within the limits of reason and fairness. See Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835, 840; Dallas Transit Co. v. Hammer, 404 S.W.2d 85 (Tex.Civ.App.), no writ; Lackey v. Perry, 366 S.W.2d 91, 96 (Tex.Civ.App.), no writ. The evidence is sufficient to sustain the trial court’s judgment.

The amount awarded by the jury does not offend the conscience of this court. We decline to substitute our judgment for that of the jury.

The judgment of the trial court is affirmed.