author: NORTHCUTT, Justice.

text:
    R. L. McMURTRY, Appellant, v. Emory ADDINGTON, Appellee.
    No. 7096.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 29, 1962.
    Rehearing Denied March 5, 1962.
    See also 332 S.W.2d 407.
    Fike & Hunter, Dalhart, Clayton, Martin & Harris, Amarillo, for appellant.
    Richards & Ferguson, Dalhart, for ap-pellee.
   NORTHCUTT, Justice.

This is a suit in which appellee seeks to recover $5,000.00 paid by him to appellant at the time he agreed to purchase 235 head of cows from appellant.

Appellant listed with J. I. Wynn, a commission man of Amarillo, 235 head of cows for sale at $260.00 per head. Appellee had previously advised Tom Pugh that he was interested in buying some good young cows. Pugh learned of the Wynn listing and submitted these cows to appellee. Ap-pellee being interested, they went to appellant’s ranch in Dallam County to inspect the cattle and were there shown by appellant’s ranch employee, Carl Daniels, all the cattle, except a few head, located on appellant’s ¡ranch. The cattle on the ranch at the time of showing included the 235 cows listed with Wynn, and some calves, 66 yearling heifers, some bulls, 27 head of registered cows, with some calves, and some registered heifers. Daniels showed all of the cattle on the ranch, except a few head, nothing being said to him or by him as to the cattle to be sold or purchased.

After having inspected the cattle appel-lee and Pugh met appellant in Amarillo and appellee purchased the 235 head of cows at $260.00 per head for delivery October 10, and made a payment of $5,000.00.

A few days prior to the time for delivery appellee instructed appellant not to mix the 27 head of registered cows and their calves with the other cows and was advised by appellant that the 27 head were not part of the 235 head sold to him. This was confirmed by Wynn, who informed Pugh that no registered cows were listed with him and he had never put iip to him any registered cows for sale. On the day of delivery appellant offered to deliver the 235 head of cows and their calves which he insisted were the cattle purchased by appellee, but appellee, without examining such cattle, refused to accept them, insisting that the 27 cows and their calves were part of the 235 cows he had purchased, and demanded that the $5,000.00 be returned to him. This being refused, he filed this suit.

The case was tried to a jury and the court overruled appellant’s motion for an instructed verdict and after the jury had returned their verdict, entered judgment for appellee. Motion for new trial was overruled. From that judgment appellant perfected this appeal.

Before discussing the points of error, we will first discuss the grounds relied upon by the appellee to recover herein. Appellant contends that appellee relied upon only two grounds, being fraud in inducement of the making of the contract, and mutual mistake. Appellee contends he relied upon three grounds, being fraud in inducement of making of the contract, mutual mistake, and breach of the contract on the part of the appellant. Since both of the parties stated the case involved fraud and mutual mistake we will first consider the question as to the breach of contract.

Appellee pleaded that when he went to appellant’s ranch to see the cattle Carl Daniels, a cowboy working on the ranch for the appellant, showed the cattle to ap-pellee and represented to him that the 27 head of registered cattle he was shown were a part of the cattle to be purchased. Then the appellee pleaded: “Such representation upon the part of the defendant through his agent were not true, as hereinafter set forth, said 27 head of registered animals did not go with the sale of the cattle to the plaintiff. Such .representation then and there constituted fraud upon the part of the defendant to induce the plaintiff to purchase said cattle. Plaintiff would not have purchased said cattle but for said representations.”

Since appellee pleaded Daniels showed the cattle to him and represented the 27 head of registered animals did go with the sale but that said representation on Daniels’ part were not true and such 27 head of registered animals did not go with the sale to the appellee it is acknowledging the registered cattle were never actually sold to the appellee. Appellant listed for sale 235 head of cattle but never listed for sale any registered cattle. Appellee went to the ranch to inspect the cattle listed for sale and didn’t go to buy or look at any registered cattle. Although appellee pleaded Daniels represented the 27 head went in the sale, he testified Daniels did not tell him the 27 head went with the deal.

General admission in trial pleadings must be regarded as judicial admission in that case, rather than ordinary admission, and require no proof of the admitted fact and authorize introduction of no evidence contrary thereto. Canales v. Bank of California, Tex.Civ.App., 316 S.W.2d 314, writ refused N.R.E. and the cases there cited; Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102, by the Supreme Court. As shown by appellee’s pleadings and evidence the 27 head of cattle did not go with the sale, consequently there was never any sale entered into as to the 27 head of cattle. The appellant, on direct examination by appellee’s attorney, was asked if he told appellee there in the hotel that the 27 head of registered cattle did not go with the sale. The appellant’s answer was: “No. There was only one thing that was said about the cows. I said, ‘Pugh, how do you like those cows, those registered cows?’ And he said they were a nice bunch of cows, and I said, ‘the cows you are buying are better cows.’ ‘Well’, he said, ‘Daniels told us that.’ ” In this same connection the appellee testified in looking at the cows that they saw 130 head in one pasture, that they were good ones and they were better than the ones he (Daniels) called the thoroughbred cattle, registered cattle.

Further concerning the breach of contract, we must look to the appellee’s pleadings. We are unable to see where ap-pellee ever pleaded a contract between ap-pellee and appellant whereby the appellant ever agreed to sell the 27 head of registered cattle and the appellee agreed to buy them, and that appellee breached the contract by failing to deliver the 27 head. Instead of so pleading the appellee pleads the 27 head did not go with the sale, but because of the representation made by Daniels that the animals appellee inspected were the animals to be purchased by the appellee were not true and constituted fraud upon the part of the defendant to induce him to purchase said cattle, and but for said false representations appellee would not have purchased said cattle. It is stated in Jennings v. Texas Farm Mortg. Co., 124 Tex. 593, 80 S.W.2d 931, by the Commission of Appeals, and opinion adopted by the Supreme Court as follows: “The plaintiff must recover in the right in which he sues and upon the facts stated in his pleadings as the basis of that right, and cannot recover on a right different from that asserted, it matters not what the prayer may be.”

But should we be mistaken as to ap-pellee not pleading a contract and a breach thereof, there is not any evidence in this record to sustain the submission of the court’s special issue No. 4 as to a breach of the contract to deliver the cattle he .had listed nor the answer of the jury thereto. Appellee shows by his own testimony that he would not take any cattle unless he received the 27 head and on the date of delivery he would not even go out to see if appellant was ready to deliver the cattle he listed for sale and did not go to receive the cattle and consequently could not and did not know whether appellant was ready, able and willing to deliver such cattle. Special Issue No. 4 asking if McMurtry was able, willing and ready to deliver to Addington the 235 head of cows and their calves that he had listed for sale with Mr. Wynn. Mr. McMurtry testified he had the 235 head of cows listed there to be delivered to Mr. Addington. There was no evidence to contradict Mr. McMurtry’s evidence and since there was no evidence to the contrary, we must accept the evidence of Mr. Mc-Murtry as true regardless of the jury’s findings to the contrary.

At the close of all the evidence, the defendant, appellant here, made his motion for an instructed verdict. The court overruled the motion and gave the charge to the jury. Both parties requested certain special issues but the court failed to give any of them but submitted his own issues, which issues and the answers thereto were substantially to this effect: That the 235 head of cattle offered for sale by appellant included the 27 head of registered cattle; the 235 head that appellee agreed to buy included the 27 head of registered cattle; that appellee did not learn the 235 head of cattle did not include the 27 head of registered cattle before paying the $5,000.00; that appellant was not able, willing and ready to deliver to appellee the 235 head of cattle that he had listed for sale with Mr. Wynn and that there was not in this area a well established practice and custom that where a payment is made by a buyer for the purchase of cattle and the seller is ■ready, able and willing to deliver the cattle that he offered for sale to the buyer and the buyer agreed to purchase and the buyer refuses to take said cattle, that such payment is forfeited to the seller.

By appellant’s first point of error it is contended the court erred in not granting appellant’s motion for instructed verdict because appellee failed to establish fraud or mutual mistake by any probative evidence. By appellant’s second point of error it is contended the issues submitted by the court were wholly insufficient to submit any theory of the case pleaded or relied upon by the appellee. The appellant had listed 235 head of non-registered cattle. Appel-lee testified that he was never interested in buying registered cows at all and did not go out to look at any registered cattle. Appellee went out and looked at practically all of appellant’s cattle, and testified that practically all the cattle were better than the registered cattle. Appellee also testified that Daniels did not tell him the 27 registered cattle were going in the deal and that Daniels did not say anything about it. Appellee further testified that the .reason Daniels asked him to look at the 27, head was because they were unusually large and that he never did ask Daniels, Pugh or appellant whether the 27 head went in the deal. Appellee said that on October 10, the day of the delivery, either that day or before or after, or at any time he never went out to see the 235 head that appellant had ready to deliver. The undisputed evidence is that the appellant had the 235 head he had listed for sale ready to deliver to appellee on the delivery date.

The appellee after making the above statements of definite facts did not subsequently modify or explain how he was mistaken as to such evidence. In the case of Stanolind Oil & Gas Co. et al. v. State et al., 136 Tex. 5, 145 S.W.2d 569, by the Supreme Court, it is stated:

“The authorities hold that where a litigant admits positive and definite facts, which if true would defeat his right to recover, and such statements or admissions are not subsequently modified or explained by him so as to show that he was mistaken, although testifying in good faith, he is conclusively bound by such admissions, and cannot successfully complain if the court directs a verdict against him. Watkins Co. et al. v. King, Tex.Civ.App., 83 S.W.2d 405; Southern Surety Co. v. Inabnit et al., Tex.Civ.App., 1 S.W.2d 412; Mhoon v. Cain, 77 Tex. 316, 14 S.W. 24; Nerio v. Christen, Tex.Civ.App., 189 S.W. 1038; Smith v. Boston Elevated Ry. Co., 1 Cir., 184 F. 387, 37 L.R.A.,N.S., 429; Hubbs-Diggs Co. v. Mitchell, Tex.Civ.App., 256 S.W. 702; Stephenson v. Barrow, Tex.Com.App., 15 S.W.2d 575, 576, 577; Broad River Lumber Co. v. Middleby, 4 Cir., 194 F. 817, 821, par. 3; Harlow v. Leclair, 82 N.H. 506, 136 A. 128, 50 A.L.R. 973, 976, 977, and note page 979 et seq.; 17 Tex.Jur., p. 577 et seq.”

If no one told appellee the 27 head of registered cattle went in the sale and he inspected practically the entire herd of' cattle, and knew he was not buying all the cattle, he could not have been misled by any fraud.

The appellee has never at any time excepted to or assigned any error to any action taken by the trial court and seeks to sustain the judgment upon the record as made. The trial court entered judgment upon the word of the jury declaring that the contract and agreement between the parties regarding the sale of the cattle in all things rescinded and canceled and gave the appellee judgment for the $5,000.00 as against the defendant.

The first issue submitted by the court was whether the 235 head of cattle offered for sale by Mr. McMurtry included the 27 head of registered cattle. The undisputed record is that the listing given to Mr. Wynn by Mr. McMurtry as to the cattle to be sold did not include any registered cattle. There is no evidence that Mr. McMurtry ever offered for sale to Mr. Addington any registered cattle. As heretofore stated Mr. Addington testified that he did not go to look at any registered cattle and was not interested in buying any registered cattle. The second issue was whether the 235 head of cattle that Mr. Addington agreed to buy included the 27 head of registered cattle. The appellant objected to special issue No. 2 and pointed out to the court the effect of the issue in stating that Addington agreed to buy instead of what he thought he was buying but the objection was overruled by the trial court. Webster defines "agreed” as “United or settled in or by a common opinion or consent. Can two walk together, except they be agreed. Amos III :3” Mr. Addington might have thought he was buying the 27 registered cattle but there was no evidence of an agreement between him and Mr. McMurtry to that effect.

We think special issues Nos. 1, 2, and 4 are the only 'issues to be considered in connection with the appellee’s contention as to a contract and a breach thereof and also as to fraud and/or mutual mistake. We have "heretofore given our views as to the contract and breach thereof. We find no fraud and hold there was no mutual mistake shown under the record. There is nothing in this record to show that Mr. Mc-Murtry had any knowledge that Mr. Addington was mistaken and thought he was buying the registered cattle, and all Mr. McMurtry had listed for sale were the un-registered cattle he intended to sell to Mr. Addington. Sun Oil Co. v. Bennett et al., 125 Tex. 540, 84 S.W.2d 447, by the Commission of Appeals, and adopted by the Supreme Court; Bryan et al. v. Dallas National Bank, Tex.Civ.App., 135 S.W.2d 249, writ dismissed, judgment correct; Williams v. City of New York Ins. Co., Tex.Civ.App., 210 S.W.2d 219, writ refused, N.R.E.

Where the appellee did not prove a contract and breach thereof mutual mistake or fraud, he was not entitled to recover the money he had advanced in part performance of the contract. It is stated in the case of Fink et al. v. Hough et al., Tex.Civ.App., 153 S.W. 676, writ refused as follows:

“The money, under the contract, was part of the purchase price for the land, and under a long line of decisions cannot be recovered by appellees. In the case of Estes v. Browning, 11 Tex. 237, 60 Am.Dec. 238, it is said: ‘A party who has advanced money or done any act in part performance of the agreement, and then stops and refuses to proceed and fulfill his stipulation according to the contract, has never been suffered to recover for what has been thus advanced or done; and it would be an alarming doctrine that parties might violate their contract because they chose to do so, and make their own infraction the basis of an action for money had and received.’ Also to same effect are the cases of Pell v. Chandos, [Tex.Civ.App.,] 27 S.W. 48; Banks v. McQuatters, [Tex.Civ.App.,] 57 S.W. 334; Lipscomb v. Fuqua, 55 Tex.Civ.App. 535, 121 S.W. 193.”

From what has been said, we are of the opinion and so hold that the judgment of the trial court should be reversed and judgment .rendered that the appellee take nothing.


source: Caselaw Access Project

license: Public Domain

text:
    Leo BAKER et ux., et al., Appellants, v. Billy L. BRACKEEN et ux., Appellees.
    No. 7097.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 5, 1962.
    Rehearing Denied March 5, 1962.
    E. H. Boedeker, Lubbock, for appellants.
    Nelson, McCleskey & Harriger, Lubbock, for appellees.
   NORTHCUTT, Justice.

This suit was instituted by Leo Baker, et al., as plaintiffs praying for a permanent injunction restraining and enjoining the defendants, Billy L. Brackeen and wife, Peggy Brackeen, from operating a beauty shop in the garage of their home in Sunny Hill Addition to the City of Lubbock, Lubbock County, Texas. The plaintiffs will hereinafter be referred to as appellants and the defendants as appellees.

The appellants base their suit upon two paragraphs of the restrictions pertaining to Sunny Hill Addition which were pleaded as follows:

“1. All of the above described blocks shall be used exclusively for residential purposes and the said lots so here designated as residence lots and all of the territory and property covered by said lots, shall hereafter in this dedication deed be referred to as ‘residential section.’
“No noxious or offensive trade or other activity shall be carried on upon any lot or tract in this addition, nor shall anything be done thereon which may be or become a nuisance or gross annoyance to the neighborhood.”

Appellants contended they were home owners in the Sunny Hill Addition and that they bought their property because the restrictions provided that the area of Sunny Hill Addition should be used exclusively for residential purposes; that Sunny Hill Addition is an exclusive residential area; and that the appellees in March, 1960 made application to the City of Lubbock to alter their garage attached to their dwelling. The permit was granted. Thereafter ap-pellees began operating a beauty shop for the public in such converted garage. The appellants filed suit June 10, 1960. The appellees answered by general denial and special pleadings that the operation of a beauty shop was a profession and there had been an abandonment of the restrictions, laches, estoppel and acquiescence by appellants. Appellees also defended the suit on the grounds that they had not violated, or threatened to violate any valid restriction imposed on the use of their property, and that there was no restriction on the Sunny Hill Addition which would prohibit the use appellees were making of their residence.

At the close of all the evidence, the appellants made a motion for an instructed verdict but the motion was overruled by the court.

After overruling the plaintiffs’ motion for an instructed verdict the cause was submitted with instructions to the jury on six Special Issues with reference to the use made of the property in Sunny Hill Addition, acquiescence, were defendants violating restrictions, changed condition, waiver and abandonment. The jury answered five of the issues favorable to defendants and further found that the use of such residence in the addition for the purpose and in the manner in which defendants were using the East one-half of their garage was prohibited by the restrictions.

Plaintiffs filed a motion for judgment and also filed a motion for judgment Non Obstante Veredicto. The court overruled both of the said motions and entered judgment in favor of the defendants and against the plaintiffs by denying the injunction prayed for by them.

Plaintiffs filed their motion for a new trial which the court overruled, and they perfected their appeal from the judgment of the trial court and appellants now insist that the trial court should have granted them an instructed verdict and in failing to do so the jury’s findings to the Special Issues 1, 2, 4, 5, and 6 are so contrary to the overwhelming weight of the evidence as to be manifestly unjust and wrong.

By appellants’ first two points of error it is contended the trial court erred in not granting appellants’ motion for instructed verdict and in refusing to grant appellants’ motion for judgment Non Obstante Vere-dicto, since there was no proof to establish any defense pleaded by appellees and the uncontroverted evidence showed that ap-pellees were operating a beauty shop in Sunny Hill Addition, an area restricted for exclusively residential purposes, and no substantial violations were shown before appellees started operating a beauty shop therein.

In answer to Special Issue No. 1 the jury found that a substantial number of persons, other than defendants, within the Sunny Hill Addition were using a part of their homes in the addition for business and professional purposes. In answer to Special Issue No. 2 the jury found that the plaintiffs either knew, or by the exercise of reasonable diligence should have known, that such businesses and professions were being carried on out of other homes in the Sunny Hill Addition.

In determining whether the trial court erred in overruling appellants’ motion for instructed verdict and in overruling appellants’ motion for judgment Non Ob-stante Veredicto, we must consider whether there is any evidence sufficient to authorize the submission of an issue to the jury. A peremptory instruction is warranted only when the evidence is such that no other verdict can be rendered. White et al. v. White et al., 141 Tex. 328, 172 S.W.2d 295 by the Supreme Court; Erwin et al. v. Hays, Tex.Civ.App., 267 S.W.2d 884 (Writ refused NRE).

We are of the opinion that there was sufficient evidence to sustain the jury’s findings in answer to Special Issues Nos. 1 and 2, and overrule appellants’ first two points of error.

By Special Issue No. 3, where the court asked the jury if the restrictive covenants prohibited the use of a part of a residence in the addition for the purpose and in the manner in which the defendants were using the East one-half of their garage, we think would be a question of law and not a question of fact to be submitted to the jury. Alexander Schroeder Lumber Co. et al. v. Corona et al., Tex.Civ.App., 288 S.W.2d 829. Mrs. Brackeen was operating a beauty parlor in the East one-half of the garage that was a part of her residence. If there was no other matter to be determined, other than the question of operating the beauty parlor, that would be using the residence for a purpose other than exclusively residential purposes and we would be compelled to hold that such use was in violation of the restriction prohibiting the use for other than residential purposes.

Paragraph seven of the restrictions indicate that a party may carry on a trade or other activity so long as they are not noxious or offensive or which may be or become a nuisance or gross annoyance to the neighborhood.

Mrs. Brackeen had to go to school and take certain courses and take a state examination before she could carry on her work or profession. She had done all this and had both a City and State license to practice beauty culture. The rules of cleanliness required of her were very strict. Writings are construed in the light of all that is necessarily implied as well as by force of what is expressly set out. Alexander Schroeder Lumber Co. et al. v. Corona et al., Tex.Civ.App., 288 S.W.2d 829 (Writ refused NRE).

It is expressly set out in the restrictions that all of the blocks in the Sunny Hill Addition shall be used exclusively for residential purposes. If that expression is considered alone, then, no trade or other activity of any kind could be considered. But, when the restrictions go further and state that no noxious or offensive trade or other activity shall be carried on upon any other lot or tract in the addition, nor should anything be done thereon which may be or become a nuisance or gross annoyance to the neighborhood, we think it necessarily implies that Mrs. Brackeen might carry on her beauty activities unless it is noxious or offensive, etc.

If there be any ambiguity in the restrictions, or substantial doubt of its meaning, the ambiguity and doubt should be resolved in favor of the free use of the land. Baker et al. v. Henderson et al., 137 Tex. 266, 153 S.W.2d 465, by the Commission of Appeals and adopted by the Supreme Court.

We do not cite the Penal Code to abrogate the provisions of the restrictions; but if the restrictions here involved do not prevent the appellee from operating her beauty operations, there is no question but what she has the right to carry on such operations in her home under Art. 734b, Sec. 9(a) of Texas Penal Code, V.A.T.S.

Although Special Issue No. 3 was a question of law and not a question of fact to be submitted to the jury, the remaining Special Issues were based upon the jury answering Special Issue No. 3 that the restrictive covenants prohibited the use of the premises in the manner Mrs. Brackeen was using the same. The jury found in answer to Issue No. 3 Mrs. Brackeen was using the premises in a manner prohibited by the restrictions, and in answer to the remaining issues that the general nature of the addition had changed to such a degree so that the restrictions were no longer reasonably capable of enforcement; that the plaintiffs, prior to the beginning of defendants’ beauty operations, had waived their rights to enforce such restrictions so would prohibit defendants’ beauty operations , as the same had been conducted by permitting others within the addition to use their residence in a similar manner, and that the plaintiffs, prior to the beginning of the defendants’ beauty operations, had abandoned such restrictions as would prohibit the use of a part of a residence for the purpose which defendants were using the East one-half of the garage.

Practically the same matters involved herein were involved in the case of Burk-hart et al. v. Christian, Tex.Civ.App., 315 S.W.2d 668 (Writ refused NRE). Only in that case the appellee was an Osteopath and was practicing in one room of her home. We think the reasons stated in that case and the cases there cited are directly in point here, and that this case should be affirmed. Judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Gayle Anne RENEGAR, Appellant, v. Bill A. CRAMER, Appellee.
    No. 10912.
    Court of Civil Appeals of Texas. Austin.
    Filed Feb. 7, 1962.
    Rehearing Denied Feb. 28, 1962.

      Rogan B. Giles, Gay & Meyers, Austin, for appellant.
    Vandygriff, Presnal & Baker, Byrd, Davis & Eisenberg, Marion S. Roberts, Jr., Austin, for appellee.
   HUGHES, Justice.

Bill A. Cramer, suing in behalf of his wife, Patty Cramer, recovered judgment against Gayle Anne Renegar for $30,191.35 as damages for personal injuries sustained by Mrs. Cramer in a collision between a Chevrolet Sedan automobile operated by Mrs. Cramer and a Ford Thunderbird automobile operated by Gayle Anne Renegar. The collision occurred at the intersection of West 49j4 Street and Finley Drive in Austin, Texas, about 11:00 A.M. on December 5, 1959. At such time, Gayle Anne Renegar was fourteen and one half years of age. The trial was to a jury.

Appellant’s first and second points complain of the jury argument of appellee’s counsel. They are jointly briefed and we will dispose of them in the same manner.

As to point 1 appellant’s bill of exception shows that counsel for appellee made this argument to the jury:

“ * * * Now, there are lots of things — some things we’d like to tell you here, but the rules do not permit. So when you get in your Jury Room, don’t speculate about why we didn’t tell you about this or why this and that wasn’t mentioned. Just restrict it to what the Judge tells you, what you’ve heard here, so that your verdict will be solid and good and they can’t come back and set it aside and make us try it again. If anyone should mention anything like that out of the record, just caution them, ‘We’re not supposed to do it.’ Just follow the Court’s orders and give these answers on the basis of the evidence. The Court tells you on Page 1, ‘Don’t concern yourselves with the result of your answers insofar as they may result in a judgment in favor of or against either party.’ Of course, the Court is telling you not to be concerned with the actual effect of your answers, nor with who is actually going to pay your verdict or whether or not it will ever be paid. Just find the facts from what you’ve heard here and let the Judge decide the law.”

This bill was approved by the Court with these qualifications:

“ * * * no objection to the statements quoted above was made; the Court was not requested to instruct the jury not to consider such statements; no complaint of any nature about such statements was made until the filing of defendant’s motion for a new trial; and all of the above quoted statements were made by plaintiff’s counsel in his closing argument.”

Related to the second point, appellant’s bill of exception shows that counsel for ap-pellee made this argument to the jury:

“Now, I’d like to go through the problems that they raised, one by one. First, this prior injury. If they are successful in making any ground for this release thing, then any time a person is injured in an automobile collision or any other way, if he can’t settle and get a fair settlement for his injuries and he has to bring a lawsuit, he’s going to be a fraud, a fake and a liar, and that’s what they’ve made out here, and anybody that comes in that they don’t agree with is a fraud, a fake and a liar. In this case, I guess it’s me, Dr. LaLonde and the Plaintiff also, according to what I’ve heard in the argument here. Any time any one of you or any member of your family or any person in society has a bent fender and is paid the amount of his property damage, it doesn’t matter if he got a scratch or his daughter got a scratch, and he signs his name to one of these releases for $320.00, if that’s the amount of your property damage — in this case fifty for the little girl — you’re, according to their theory, forbidden forever to come in and say that your injuries were caused by this recent accident, because you put your name on this release that these boys signed up — typed out for you. Any person who has ever had property damage to his car is going to be in the same fix, if you’re ever seriously injured in a wreck and have to make claim for it because you can’t get a reasonable settlement. And if you don’t think a simple telephone call to the central headquarters of these gentlemen will cough up every release you’ve ever signed, just try it. One call and give the name and they’ve got every release for property damage, and they can twist it and distort it, as has been done in this case. And, don’t you think, just common sense, if Mrs. Cramer had really made any indication she was injured at all, don’t you think they would have had in that file some medicals or statements or something besides a simple little signing of her name? If they’d had it, don’t you know they would have brought it in here? They brought in what they could for poison. Spray the air with poison and hope that some member of the Jury would pick it up and say, ‘Well, it may be right.’ That’s just shot-gun tactics. Any ‘BB’ that hits, they’re satisfied. Also, I wonder what explanation — I didn’t hear it — they have. Was Mr. Cramer injured — and he signed that release. It says, ‘To my neck, back and all other parts of my body,’ and sometimes fingers and toes and everything else. He put his name on it and he wasn’t even in the car. It doesn’t mean that, and I suspect that some members of the Jury have signed them yourselves so you know that I’m talking about something you’re way ahead of me on.”

This bill was approved by the Court with these qualifications:

“ * * * no objection to the statements quoted above was made; the Court was not requested to instruct the jury not to consider such statements; no complaint of any nature about such statements was made until the filing of defendant’s motion for a new trial; and all of the above quoted statements were made by plaintiff’s counsel in his closing argument.”

Appellant’s points are that the effect of these arguments was to intimate to the jury that she was insured.

While Mrs. Cramer was undergoing cross examination, the following transpired:

“Q. Isn’t it true that your back was injured in an automobile accident around the Sth of April, 1956?
“A. No, sir, it wasn’t.
MR. GAY: Will you mark this, please, as Defendant’s Exhibit 1 ? (Said instrument was marked for identification as Defendant’s Exhibit No. 1.)
“Q. Do you recognize the signatures?
“A. Yes, sir, I do.
“Q. Whose signatures are those?
“A. They are mine and my husband’s.
“Q. Were you in an automobile which was involved in a collision with either Mr. William L. Best, Mrs. William L. Best or Barbara Best?
“A. Barbara Best.
“Q. All right.
“Q. (By Mr. Gay) Mrs. Cramer, I want to read from this, and you watch to see that I am reading it correctly, will you?
“A. Yes, sir.
“Q. ‘KNOW ALL MEN BY THESE — ’ Was Mr. Cramer in the car at the time?
“A. No, sir, my daughter and I were the only two people in the car.
“Q. All right. ‘KNOW ALL MEN BY THESE PRESENTS, That I Bill A. Cramer and Patty J. Cramer, for and in consideration of $328.95 to me in hand paid by Mr. and Mrs. William L. Best and Barbara Best,’ and so forth, ‘ — release all causes of action from an accident to a 1951 Plymouth and ourselves.’ Were you in a 1951 Plymouth?
“A. I was, yes. That’s what we were driving in.
“Q. ‘ — which occurred on or about the 5th day of April, 1956, by reason of personal injuries to my neck, back, head and all other parts of my body, the extent being unknown and undetermined, and property damage more especially to a 1951 Plymouth, the extent being unknown and undetermined, arising out of an accident in Austin, Texas.’ Did I read that correctly?
“A. You read that correctly.
“Q. And you signed that?
“A. I did.
“Q. I believe that’s all.”

Mrs. Cramer denied, and this denial is undisputed, that she was injured in such collision or that she had made a claim for personal injuries as a result of such collision.

Appellee, thereafter, called Mr. William G. Washington as a witness and developed that he was an attorney and also in the insurance business. Mr. Washington was interrogated about the practice of insurance companies in procuring releases in settling claims, and the form of such releases. In part, Mr. Washington testified, on cross examination as follows:

“Q. Mr. Washington, what does this typed matter in here indicate to you as to whether or not a claim for personal injuries was being made?
“A. Now, Mr. Gay, like I told Mr. Byrd, I am not familiar with this particular release; however, there is typed here, ‘Personal injuries to my neck, back, head and all other parts of my body, the extent being unknown and undetermined.’ Now that is not usual in a release, to spell it out like that, for property damage.
“Q. Well, does that or not indicate to you that a claim was being made, that there was or may have been an injury to the neck or back or other parts of the body?
“A. Well, there would not have been a reason in the world for them to make the addition. In other words, somebody went out of their way to add with the typewriter, ‘Personal injury to my neck, back, head and all other parts of my body.’ ”

The record further shows that on direct examination Mr. Washington testified as follows :

“Q. Well, I will restate it. Is it not true that when you take a release, and is it not true that it is the custom in this area and all other areas, when an insurance company takes a release or any Defendant takes a release for property damages and where a child has had $20.00 medical expenses, X-Rays, and where the mother was driving the car, that they require and get the signature of the mother and father and the release states, ‘This release releases all property damages and all personal injuries that may have occurred or that we know about or we may not know about;’ it includes everything as a catch-all; is that not true ?
“A. Mr. Byrd, everything is coming at me pretty fast here. Now, this doesn’t appear to be a usual release.
“Q. Is it not true, Mr. Washington, what I ask you?
“A. Well, now, this—
“Q. You can answer it.
“A. Well, no, in this particular release there is something that is entirely different from the usual claim for—
“Q. Let me ask you the question. Did you understand the question I asked?
(By Mr. Byrd) Well, you can explain, but is it not true what I said?
“A. This is not a—
“Q. That’s not the answer. You can explain and your Counsel can ask you any question you want to.
“A. Please, sir, he is not my Counsel.
“Q. Well, the lawyer on the other side. Is it not true what I said?
“A. You are going to have to repeat the question. I am sorry.”

As to the argument first made, it must be remembered that appellant was a girl not quite 15 years old. The natural question which would arise in a layman juror’s mind would be the liability of the parents for a judgment against the girl. It is not a uniformly settled question among the states. In some states the parents, aside from agency, are responsible for damages resulting from negligent acts of their minor children in driving automobiles for family purposes. Texas is not among these states. See Trice v. Bridgewater, 125 Tex. 75, 81 S.W.2d 63, 100 A.L.R. 1014.

The principal purpose of the argument first made, in our opinion, was to guard against the normal disinclination of a rational mind to punish one (the parents) who is without fault.

Under the circumstances here, we do not regard such argument, reasonably considered, as intimating or implying that appellant was protected by insurance. A similar argument was held not calculated to lead a jury to believe that an insurance company would have to pay any judgment rendered in Airline Motor Coaches v. Green, 217 S.W.2d 70, Beaumont Civil Appeals, writ ref., N.R.E. There, as here, the jury was instructed not to concern itself with the result of its answers to special issues. We quote from the opinion in that case:

“By its 5th Point appellant complains of a portion of the argument of appel-lee’s counsel in his closing argument to the jury that ‘You are not concerned if the defendant ever pays one penny of it,’ contending that said argument insinuates and is calculated to lead the jury to believe that someone other than the defendant, towit, an insurance company would have to pay any judgment which they rendered. The argument as made by appellee’s attorney from which the excerpt in Joint 5 was taken and the objection thereto are as follows:
“ ‘Now, gentlemen, regarding the issue on damages. We sue here for twenty-five thousand dollars, and I think you can sit down with a pencil and paper and with no trouble figure the damages sustained by her exceeding twenty-five thousand dollars, laying aside doctors’ bills, which we didn’t attempt to prove. There is enough testimony in the record to support twenty-five thousand dollars. That’s a lot of money, but you are not concerned with that nor with who is going to pay it. * * * >
“ * * * We do not agree with appellant that this argument was calculated to lead the jury to believe that someone other than appellant, to-wit, an insurance company would have to pay any judgment rendered. As we construe the argument made, it was only an admonition to the jury to disregard the effect of their findings and to be guided solely by the evidence in arriving at the amount of damages appellee had suffered.”

Appellant relies, primarily, upon Ulmer v. Mackey, 242 S.W.2d 679, Fort Worth Civil Appeals, writ ref., N.R.E. and Griffith v. Casteel, 313 S.W.2d 149, Houston Civil Appeals, writ ref., N.R.E.

In Ulmer the Court reversed a judgment against a defendant who was stationed in Korea with a United States Combat Air Force and was unable to be present at the trial, holding the Trial Court erred in overruling his motion to stay the trial. In the course of its opinion, the Court stated:

“While the facts set out in appellant’s points five and six may not appear in another trial, yet it is well to observe that it is error for an opposite party to ask questions or to make arguments to the jury or statements to the court before the jury where the jury could infer that the defendant in such a case carried liability insurance. We think the following argument which appellee’s attorney made to the jury is improper:
“ ‘This court is here to protect any rights of Sergeant Ulmer has in this matter. The court is here for that. The court doesn’t ask you who is going to pay this verdict or whether it will ever be paid.’ ”

We do not consider this language to be authoritative to the extent that we should follow it in preference to the required and precedential holding in Motor Coaches v. Green, supra.

In Griffith v. Casteel, supra, the Court held the statement of appellee’s counsel in the presence of the jury that “The defendant is not being asked to pay any money,” placed before the jury the extraneous information that appellant was protected by insurance, and was reversible error under Rule 434, Texas Rules of Civil Procedure.

There was no statement to the jury here of import similar to the one in Griffith v. Casteel. The jury was not told that appel-lee was not being called on to pay the judgment. The jury was merely cautioned not to speculate on it. We believe the admonition to the jury here was in all material respects identical with the remarks held not to be improper in Airline Motor Coaches. If we held to the contrary, we would be in conflict with the decision in that case. This we wish to avoid.

Appellant’s second point is that the Court erred “in permitting appellee’s attorney in his closing argument to intimate that appellant was insured by telling the jury that her attorney by ‘a simple telephone call to the central headquarters’ could secure every release signed by anyone — that ‘one call and give the name and they’ve got every release for property damage.’ ”

Appellant injected the prior collision in which Mrs. Cramer was involved into the case, and she also introduced in evidence the insurance company release which Mrs. Cramer executed as an incident thereto, and appellant cross examined Mrs. Cramer regarding it.

We find it proper and only natural that appellee sought, as best she could, to offset the inferences which could be drawn from the fact of the prior accident and the execution and form of the release. One method of doing this was to attempt to prove by Mr. Washington, as one experienced in insurance matters, that the taking of the release was routine, and that it did not signify physical injury on the part of claimant.

We regard the reference to counsel for appellee as being counsel for Mr. Washington to have been a mere slip of the tongue which was immediately corrected and which could not possibly have been injurious to appellant.

We find nothing in the bill of exception to substantiate appellee’s contention that counsel for appellant in his argument to the jury stated that “her” (appellant’s) attorney could by “a simple call to the central headquarters” secure releases. As we read the bill of exception, the reference made by appellee’s attorney was to insurance claim adjusters of the type who procured the release from Mrs. Cramer.

We overrule points one and two.

Appellant’s third and fourth points, jointly briefed, are that the Court erred in holding that there was any evidence to support the jury finding that $25,000.00, if paid now, would reasonably and fairly compensate Mrs. Cramer for the reasonable cost of domestic help which she would in all reasonable probability necessarily incur in the future as a direct and proximate result of her injuries, and in not holding that such finding was against the great weight and preponderance of the evidence.

After having carefully read and considered the entire statement of facts, we overrule these points.

No primary evidence was offered by appellant as to the extent of the injuries suffered by Mrs. Cramer as a result of her negligence. No primary evidence was offered by appellant to contradict or counteract any element of damage claimed or proved by Mrs. Cramer.

The case for Mrs. Cramer was established by both lay and professional witnesses.

Mrs. Cramer at the time of trial (2 — 15— 61) was forty years of age. She and her husband had one child, a girl age 16 years. At the time of her injuries, Mrs. Cramer did all of her housework, some of the yard work, and was a substitute teacher in the Austin elementary schools.

Mrs. Cramer was treated by her family physician, Dr. Pruett Watkins, from the day of her injury until he referred her to Dr. Albert LaLonde, a neurological surgeon, on March 24, 1960. Dr. LaLonde diagnosed her condition as a chronic lumbar disc protrusion. He testified that she would never have a normal back.

Mrs. Cramer testified:

“Q. Do you sleep well at nights, Mrs. Cramer?
“A. I sleep all right except when I have severe muscle spasms, and then I don’t.
“Q. When do you have severe muscle spasms?
“A. I have them after I do heavy housework and lifting and excessive bending and stooping.
“Q. Well, define for the Jury what you mean by heavy housework, lifting, bending and stooping.
“A. Mopping the floors and waxing, cleaning my woodwork, emptying the trash cans, running the vacuum, moving the furniture.
“Q. Well, tell the Jury, if you can, what you have experienced in the way of trying to work out a routine that you can do so that you will know what you can and can’t do.
“A. In trying to take over the household duties of my home, when I do the heavy work, such as these things I have mentioned, vacuuming and moving furniture and dusting and cleaning and heavy jobs of that type, I follow up with a severe muscle spasm, and as a result, have to go to bed for some two or three days, depending upon the severity of the spasm.”

On cross examination Mrs. Cramer testified :

“Q. Of course, you did gradually take on more and more of your household responsibilities, did you not?
“A. Yes, sir, I tried, all of the time I tried to do that.
“Q. And by the first of February, were you doing about as much of your household work as you had done in the past?
“A. I was trying, but the pattern that it followed was that I would try to do the things that I felt were my responsibility, and muscle spasms, and then I would have to be in bed, and then as I was able to try again, I did. I always felt like it was my place to do that work if I could.
“Q. And I believe you have stated that you had tried to do some of all of the work that you had been doing in the past; is that correct?
“A. I had tried. I know that I had tried to do all that I could.
“Q. Was there any part of the work that you had determined by the first of February that you could not do?
“A. I had determined — yes, indeed.
“Q. What?
“A. I had determined from these muscle spasms that I had, that I was not ready to do extensive, to do heavy work.
“Q. All right. Now, will you define the heavy work that you were not ready to do on the first of February?
“A. Mopping, lifting trash .cans, carrying grocery bags in, running the vacuum, making beds, stooping and bending and lifting.
“Q. Then, during the month of February, were you able to do any of those things so that by the first of March your activities had increased?
“A. I could not say. It was a matter of trying and muscle spasms, and trying, and muscle spasms, and I cannot really get involved in dates on that. I just know it followed that pattern consistently.
“Q. All right. Had you had any pain between the time you were injured and March 16th ?
“A. I had had muscle spasms and was in bed with them, and out of bed with them. That was just a thing that had happened, that was a pattern that it followed all the way, and I had been under the doctor’s care all of that time.
“Q. Do you ever do any of the washing now?
“A. If I am placed on restricted activity by the doctor, I don’t do it. If he has taken me off of restricted activity, then I do anything and everything that I want to do.
“Q. I see. Now, what doctor are you talking about?
“A. Dr. LaLonde.
“Q. And how often do you see Dr. LaLonde ?
“A. I see him or call him whenever I have a muscle spasm.
“Q. And then, too, at a particular time you are on restricted activity or are not on restricted activity?
“A. Yes, sir.
“Q. All right. Right now, Mrs. Cramer, are you on restricted activity or not?
“A. I am, as of last Wednesday. Before that, I was not on restricted activity for some five, four or five weeks, due to Dr. LaLonde’s request:
“Q. In other words, it depends on what Dr. LaLonde tells you—
“A. Yes, sir.”

On redirect examination Mrs. Carmer testified:

“Q. Mrs. Cramer, on each of these occasions that you have told us about, when you said you got to feeling much better, and as you got to feeling better, you expanded your activities and started doing more and more, and on many occasions, as you did that, you went back down in bed with a muscle spasm; I want to ask you if it is correct that on each of those occasions from December 5th clear on up until the present time that just before you went back in bed with a muscle spasm, that you felt that you were doing much better?
“A. Yes, sir, I did.
“Q. And had you been going out much more and moving around more in your activities?
“A. I had been.
“Q. And did you feel you were greatly improved?
“A. I did think that I had, was improved.
“Q. And was that the reason that you expanded your activities in your housework ?
“A. Yes, it was.
“Q. Was that true on each occasion that you had these back spasms that put you in bed ?
“A. Yes, sir, it was.
“Q. Including the time that you picked up the wash along with your other housework?
“A. Yes, sir, and including all of the others.
“Q. I believe that’s all, Mrs. Cramer. Thank you.”

When being questioned about a back brace, Mrs. Cramer testified on cross examination :

“Q. Ordinarily, Mrs. Cramer, how often do you wear'it? Do you usually wear it when you go to school, for example ?
“A. Only occasionally.
“Q. Do you wear it as often as once a week?
“A. Well, that all depends. Sometimes I go without having muscle spasms for a time, so, therefore, I don’t wear it.
“Q. What brings on the muscle spasms ?
“A. The stooping, sitting, cleaning, mopping, moving heavy furniture, running the vacuum.
“Q. All right.
“A. Long periods of sitting.
“Q. When you do the heavy work you have told us about, such as mopping, moving the furniture, that sort of thing, then, you may — that may bring on a muscle spasm, is that correct?
“A. It has.
“Q. It has?
“A. In the past. The pattern has followed that way.
“Q. It doesn’t invariably do that, usually, does it?
“A. That is the pattern it has taken.
“Q. Yes. What I asked you was, does it invariably do that ?
“A. Well, do you mean does it always?
“Q. Does it always ?
“A. It does.
“Q. It always does it. And so, then, when it comes on, you put on your brace?
“A. When it comes on, I start on this pain drug and go to bed for a day or two or three, depending upon the severity of it, and when it relaxes, then, I again get up and start over.”

Dr. Watkins testified:

“Q. Now, Doctor, basing your opinion on reasonable medical probability, from March — I mean, from — and from the period December 5, ’59, the date of this accident, up to March 18th, or whenever it was you referred her to Dr. LaLonde, 1960, would Mrs. Cramer’s condition permit her to carry on her usual activities of a full time housewife and as a substitute teacher in the Public Schools, both jobs?
“A. Not full time, certainly.
“Q. All right.
“A. There were intervals when she could not possibly have done it. There might have been days when she felt that she could, but full time employment, no.
“Q. Well, I mean full time housewife employment, the work that a housewife normally does, and in addition to that, substitute teaching?
“A. No.
“Q. Basing your opinion upon reasonable medical probability and for that same period, from the date of her injury up until you transferred her to Dr. LaLonde, would her, Mrs. Cra-mer’s condition, permit her to perform the bending, stooping, lifting activities that a housewife normally does every day?
“A. She could not do them every day. There might have been periods when she could have done those, hut not every day.
“Q. Now, one of those periods was when she came back in your office with muscle spasms, was it not, from the washing clothes and doing her housework ?
“A. Yes, yes, that’s—
“Q. What was the result during the period that you treated her when she did attempt to go back to her normal household duties, such as this washing that you have told us about?
“A. This was a variable thing. Some of these duties she could perform at times, and others, seemingly, she could not.
“Q. Is that consistent with your experience with injuries of this type, back injuries, low back injuries?
“A. Yes, I think it is generally consistent with that. Sometimes they can perform these usual menial household chores and sometimes they cannot.
“Q. I had reference to the muscle spasm being caused by bending and stooping and lifting; is that consistent with a low back injury of the type she had when you were treating her?
“A. It often follows, yes.”

Dr. LaLonde testified:

“A. On the 11th of November she came in because she was still having episodes of muscle spasm in the back, stated that it was painful to turn over in bed. The examination at that time revealed restriction of back motion. She was advised that she would probably continue to experience, continue to have these episodes of spasm of the low back with restriction of motion from time to time, and that she should wear a corset when it afforded, seemed to afford some relief.
“Q. Have you seen her since then?
“A. * * * On the 8th of — yes, 17th of January, we suggested that she try to increase her activity.
“Q. Did she do that?
“A. And for this — one reason was, as a sort — of a test to see whether or not the symptoms would be aggravated and how severe they would become, since I felt that what she had had up to this time was a relatively chronic lumbar disc protrusion. She was unhappy about the fact that she was partially incapacitated with it, and we do not recommend operating on a person with low grade symptoms or for chronic disc protrusion, when the disability is not extreme. We prefer to operate if they are in an acute attack and are completely disabled. So, she did increase her activity at my suggestion. On the 7th of February, she began to have severe back pain in the lumbar area with dull throbbing pain over the lateral aspects, that means the outside of the left thigh. The pain was aggravated by lifting, stooping, sitting and relieved by lying down, which is about the only thing that gives her relief.
“Q. In you opinion, Doctor, will Mrs. Cramer’s present condition, as she was on February 8th, as you saw her, permit her to do the bending and stooping and lifting activities that a housewife normally does every day?
“A. Not without the production of attacks of pain.
“Q. She could do it, if she wanted to just go ahead and do it, but the results is what would be bad; is that correct.
“A. Yes.
“Q. At the present time, do you feel it is necessary that she employ part-time domestic help to assist her in performing those duties?
“A.' Yes.
“Q. And Mrs. Cramer has testified that she had a maid five hours a day for four days, in the last few months. Now, if you assume a successful operation, that she falls in the 85 percent, and, of course, basing your opinion on reasonable medical probability, will it be necessary for her to employ part-time domestic help in the future to perform the bending, stooping and lifting exercises that a housewife does?
“A. Well, I think that would be advisable, because when an individual has to perform these activities, they are more susceptible to further trouble.
“Q. Would that be advisable for the rest of her life ?
“A. Yes.
“Q. At any time — well, during the time that she has been under your care, Dr. LaLonde, has Mrs. Cramer been able, or at least has her condition been such that she could hold down a complete job, that is, the housewife’s total job, without any assistance at all, and in addition to that teach as a substitute teacher in the Austin Public Schools ?
“A. Would you repeat that, please?
“Q. Since she has been under your care, has she been able to hold down both of those jobs, full-time domestic help, without any assistance from lifting and bending, and at the same time care of — •
“A. No, she hasn’t been able to do it, because she has had episodes of pain where she had been incapacitated.
“Q. I see, sir. Is it normal for a disc protrusion to be extremely painful?
“A. Yes
“Q. Is it normal for a disc protrusion to cause back muscle spasm such as you have demonstrated that Mrs. Cramer had?
“A. That is the usual result.
“Q. Is it normal and usual for disc protrusions, as you have demonstrated, to be disabling?
“A. Yes.”

Mrs. Cramer testified:

“Q. I see. Now, Mrs. Cramer, have you been physically able to do all of your housework and to hold down your teaching job, too, since you were injured, both jobs?
“A. No, sir, I haven’t.
“Q. Has it been necessary for you to have part-time domestic help at all times since you returned to your teaching job?
“A. Yes.
“Q. And why is it that you have to have that since you have returned to your teaching job?
“A. Because I cannot do lifting and the keeping of my home and teach school, too.”

Mrs. Cramer also testified that she had not employed domestic help between the time she was injured and the time she returned to substitute teaching. During this period the heavy domestic work was done by her daughter and husband.

We do not recite it, but there was strong testimony from neighbors of Mrs. Cramer comparing her very active life before her injuries and her restricted activities after-wards.

It is appellant’s view of the evidence that “domestic help was neither required nor contemplated except while she was teaching schoolthat there was not only “some connection” between her need for domestic help and her teaching activities but that such help would be employed only when she was teaching and that there was no evidence as to how long she would teach.”

There are isolated statements in the testimony which tend to support this contention. We do not rest our decision, however, upon isolated statements, but upon the record as a whole in determining whether a verdict is against the overwhelming preponderance of the evidence.

It is our opinion that the evidence here clearly preponderates in favor of a finding that Mrs. Cramer will be unable to perform all the usual household duties of a wife for the remainder of her life, and this regardless of whether or not she continues to teach.

It is true that while Mrs. Cramer was incapacitated and not teaching, no domestic help was employed, and that only when she returned to teaching that such help was obtained. It is not correct that during such period, Mrs. Cramer did all the house work or that she did not suffer from what she did.

A reasonable deduction from this situation would seem to be that domestic help was obtained when family finances permitted it. We also observe that domestic work has value whether paid for in money, affection, or whether not paid for at all.

Mrs. Cramer has a life expectancy of 35.64 years. The weekly cost of domestic help .required by Mrs. Cramer was shown to be $21.60. The present value of $21.60 payable at the end of each week for 35.64 years, interest compounded semiannually at the rate of interest shown is, as is ac-tuarily certified:

“Interest Rate Present Value
$ 33,685.02 H
28,665.46 N
24,660.86 ro
4% 21,438.16”

The jury has great latitude in finding the present value of future damages. Texas Consolidated Transportation Co. v. Eubanks, 340 S.W.2d 830, Waco Civil Appeals, writ ref., N.R.E.

Point 5 is that the Court erred in its definition of “negligence” and “ordinary care” in the charge in that it required appellant’s conduct to be measured by the standard applicable to adults and not by the standard of conduct applicable to persons of her own age, intelligence, experience and capacity. Adequate objections to the Court’s charge were made by appellant, and in addition she requested the submission of this issue:

“By the term ‘negligence’ as used in this charge, as applied to the minor defendant, is meant the doing of that which an ordinarily prudent person of the age, intelligence, experience and capacity of the minor would not do, or the failure to do that which an ordinarily prudent person of the age, intelligence, experience and capacity of the minor would do under the same or similar circumstances.”

Appellant cites several cases to sustain this point, including: Cook v. Houston Direct Navigation Co., 76 Tex. 353, 13 S.W. 475; Gulf, Colorado & Santa Fe Ry. Co. v. McWhirter, 77 Tex. 356, 14 S.W. 26; Missouri K. & T. Ry. Co. of Texas v. Rodgers, 89 Tex. 675, 36 S.W. 243; Texas & P. Ry. Co. v. Phillips, 91 Tex. 278, 42 S.W. 852 and Dallas Ry. & Terminal Co. v. Rogers, 147 Tex. 617, 218 S.W.2d 456.

In Cook the child whose negligence was involved was 13 years and 9 months old. The Court held it was an issue of fact as to whether she possessed adult discretion.

In McWhirter where several children ages 5-15 were involved the Court sustained this charge:

“If, from the evidence, you believe plaintiff was injured, but further believe that the same was caused by other parties than defendant’s agents and employes revolving said table, and if you believe such other parties were of such age and intelligence as to know the danger of revolving such table, and of such age and intelligence as to be ■responsible for their own negligent acts, then, if you so believe, you should find for defendant. But, if you should believe from the evidence that such other parties were not of such age, discretion, and intelligence as to realize the danger of their acts, and negligence in the transaction, then the defendant would be responsible * *. Whether or not the person who the proof may show revolved the table was of sufficient age and intelligence and discretion to realize the danger of revolving the table * * * you must determine from the evidence in the case.”

In Rodgers the child whose conduct was in question was between 13 and 14 years of age. The Court in reversing the case because of an improper charge stated “Whether or not the plaintiff was of immature years, and so wanting in intelligence that he could not appreciate the danger of getting upon the car, is a question of fact to be found by the jury under the evidence that may be adduced on another trial.”

In Phillips the child was 14 years of age. The Court, in reversing the case, referred the Trial Court to the Rodgers case, discussed above.

In Dallas Railway the Court held, as a matter of law, that there was no presumption that an 11 year old child possessed adult discretion.

If appellant had been 11 years old at the time of the collision, we would follow the decision in Dallas Railway. Since she was then 141/2 years of age we believe, under the cases cited by appellant that she is subject to the rule prescribed for a 16-year old person in Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, as follows:

“The charge to the jury contained the usual definitions of negligence and proximate cause. To these definitions plaintiffs in error objected and excepted upon the ground that they placed upon this 16 year old boy the duty of exercising such care as an adult would have exercised under the same or similar circumstances, and the duty of anticipating, in the exercise of such care as an adult would have exercised, that the injuries might result. It is claimed that the standard for determining this boy’s negligence should have been that of an ordinarily prudent boy of 16 years of age and not that of an adult of ordinary prudence. If Flood was wanting in discretion or laboring under the handicap of some mental defect the burden was upon him to establish that fact. The presumption is that he was normal. We are referred to no testimony tending to overcome this presumption or raising an issue of fact as to his mental deficiency and the court did not therefore err in overruling this exception to the charge.”

There is neither pleading nor evidence that appellant is abnormal in any respect. In fact, the evidence is very much to the contrary. Point 5 is overruled.

Appellant’s last point is that the Court erred in framing the damage issues in the name of Mrs. Cramer rather than in the name of her husband who was the only party plaintiff.

It would have been mystifying and confusing to the jury if the issues had used the name of Mr. Cramer only.

We believe the issues were properly framed. If not, the error is harmless under Rule 434, T.R.C.P.

There being no reversible error, we affirm the judgment of the Trial Court.

Affirmed.


author: LANGDON, Chief Justice.

text:
    MERCURY LIFE INSURANCE COMPANY, Appellant, v. Nellie Mae PARKER, Appellee.
    No. 5512.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 14, 1962.
    Rehearing Denied March 7, 1962.

      Walter G. Lagerquist, Jr., San Antonio, for appellant.
    Porter, Madalinski & Mondin, San Antonio, for appellee.
   LANGDON, Chief Justice.

This is an appeal by defendant, Mercury Life Insurance Company, from an adverse judgment rendered by County Court at Law No. 3, Bexar County, in a suit brought by plaintiff, Nellie Mae Parker, against such insurance company to recover certain hospital benefits alleged to be due her under a policy of insurance issued by defendant. Such policy provided for a daily benefit of $10.00 for hospital confinement after the second day of such confinement. It did not limit the number of periods of hospitalization covered, but did provide that there must be an interval of 30 days between hospital entries. It also specified that no coverage would be afforded to persons over 60 years of age.

Plaintiff alleged confinement in St. Mary’s Hospital from April 20, 1956 to April 22, 1956, and from April 30, 1956 to May 11, 1956; and confinement in St. Joseph’s Hospital from May 12, 1956 to June 9, 1956. By amended petition, plaintiff sought recovery of $10.00 per day for 38 days of the confinement between April 30, 1956 and June 9, 1956.

Trial was had before the court without a jury, resulting in a judgment awarding plaintiff $380.00 plus twelve per cent penalty, six per cent interest and $250.00 in attorneys’ fees. From this judgment the defendant has duly perfected its appeal, and this case is properly before us. The parties will be referred to as they were in the trial court.

After the filing of plaintiff’s original petition, defendant filed a general denial, and then filed its first amended original answer, setting up the following affirmative defenses: That plaintiff failed to give written notice of sickness on which claim was based within ten (10) days after the commencement of disability from such sickness, as required by the contract of insurance; and that plaintiff cannot show it was not reasonably possible to give such notice and that such notice was given as soon as was reasonably possible; that plaintiff failed to furnish insurer with affirmative proof of loss within 90 days after the date of loss for which claim was made, as required by the terms of the policy; that the insurance contract contains the following provision:

“There is no limitation on the number of times this policy may be used in any one year; however, there must be an interval of at least thirty days between hospital entries” — ■

it being defendant’s contention that because plaintiff was hospitalized twice in the month of April, 1956, first for the period from April 20 to April 22, 1956, and next for a period commencing April 30, 1956, therefore plaintiff’s petition shows on its face that there was not a 30-day interval between such hospital entries, and the defendant would, in no event, be liable for other than the first hospitalization, to-wit, April 20 to April 22, 1956.

Defendant having filed its answer setting out the foregoing defenses, plaintiff immediately filed amended pleadings. She abandoned her claim for hospital benefits by reason of the first hospitalization and sued to recover benefits at the rate of $10.-00 per day for only the second period of hospitalization, beginning the third day of the period from April 30, 1956 to June 9, 1956. Plaintiff also alleged that written notice of claim was given within ten days after occurrence or commencement of the loss, or as soon thereafter as was reasonably possible; that any delay in filing written notice of claim was occasioned by defendant’s failure to promptly furnish forms for such notice. Plaintiff further alleged that proof of loss was furnished to the defendant within 90 days after the loss occurred, as required by the policy in question; or, in the alternative, within a reasonable time.

Except for the issue on reasonable attorneys’ fees, plaintiff’s case was presented to the court through the use of written interrogatories propounded to plaintiff and one other witness, together with certain exhibits which were attached thereto. No cross interrogatories were filed, and none appear to have been taken. The only evidence offered by defendant was a letter dated September 25, 1956 at Nebraska City, Iowa, purporting to be a letter from plaintiff Nellie Parker to defendant; and a copy of plaintiff’s original petition offered for the sole purpose of establishing the various dates of plaintiff’s admission to hospitals.

The interrogatories of plaintiff and her brother, Bert B. Brown, were admitted into evidence in their entirety with the stipulation that the questions and answers were to be considered as testimony the same as if they had been read from the witness stand, with certain exceptions taken by both parties.

Briefly, the testimony of plaintiff Nellie Mae Parker reflects that she is a resident of Nebraska City, Iowa; that she is a housekeeper and paper-hanger and was engaged in paper-hanging right up to the day she went to the hospital; that the policy of insurance involved here was issued to her by defendant company on March 15, 1955 and that, to the best of her knowledge, she was then in good health and had no existing condition which might later impair her health or which might require either hospitalization or surgical operation. She stated that she was admitted to St. Mary’s Hospital in Nebraska City on April 19, 1956 and remained there until April 22; that she then hung paper for a while and returned to St. Mary’s Hospital on April 29. She stated that a hysterectomy was performed on her at the hospital on May 1, 1956; that she remained in St. Mary’s Hospital continuously from April 29 to May 11, when she was transferred by ambulance from St. Mary’s Hospital in Nebraska City, to St. Joseph’s Hospital in Omaha, Nebraska, and that she remained at St. Joseph’s Hospital until discharged on June 9.

The plaintiff testified that she furnished written notice of illness to defendant after she was confined in St. Mary’s Hospital on the 30th day of April, 1956; that she wrote for forms but had to write three or four different times before they sent them to her, and that she filled them out. She estimated that she filled out four different forms, and said that defendant kept sending her more, and that she kept filling them out. She said that she signed the claim forms furnished by defendant for payment under the hospitalization clause about four different times, but could not recall the date upon which such forms were signed, except that “ * * * it was sometime after I got home from the hospital, I don’t remember just what day.”

The testimony of the witness Bert B. Brown, as reflected by the interrogatories propounded to him, is short. He testified that he was a brother of plaintiff; that he was age 73, a retired U. S. mail carrier, and that his residence was Livermore, Iowa; that he took care of things'in Nebraska City (presumably for his sister) while she was confined to St. Joseph’s Hospital in Omaha; that he notified defendant insurance company that his sister was confined to the hospital, and helped her with the insurance forms after she returned from the hospital in Omaha.

In reply to Interrogatory No. 7, “Did you obtain forms from the Mercury Life Insurance Company for completion?”, the witness stated:

“Yes, and put them with the policy at home, so she would have them to fill out and send when she got out of the hospital as it was necessary for someone to notify according to the policy. I refer you to page 50 of my records attached hereto.”

The answers to the written interrogatories propounded to the witness Brown were taken by M. A. Wallukait, Clerk of the District Court of Humboldt County, Iowa. Attached to answers given by the witness and returned by such official to the trial court at San Antonio, Texas, was a page which had apparently been cut or torn from a bound notebook or ledger. This page is marked “Exh. A” and bears the signature of the Clerk, M. A. Wallukait, and the official seal of his office. Various consecutively dated, hand-written pencil entries appear on the page, and at the top left-hand corner of the page is the printed number “50”. The items shown on such page begin with the date of April 24, 1956 and conclude with an item dated June 13, 1956. The opposite side of the page bears the printed number “49”, and contains similar entries regarding letters and other business and personal affairs, each of which items are likewise consecutively dated. Most of the items are marked with a small red “X” opposite the date of the entry. Stapled to the exhibit and made a part of it is a small slip of paper, upon which the following statement is made by the witness, Brown:

“Part of Answer to Question No. 7.
“I always keep a record of all letters I send out. Then when I receive an answer to it. I make a small X in front of it so I know I got an answer. I see by my record on page 50 a small X in front of the 2 insurance companies. So I must have received the claim papers to send in, according to my records that I have not looked at or even thought of for about 4 years. I will cut the whole page out and send it. But please return if possible for me to put back in my Ledger. ‘Thanks’. My name is and address is at the top of this page.”

Among the entries or items shown on the exhibit are the following:

“April 27, - 1956 X Sis a letter that I will be there for the operation.
May 2, -1956 X Auto Owners Letter for papers to file claim for Sis
May 2- 1956 X Mercury Ins. Co. “ “ “ “ “ “
June 4 X Mercury Ins. Co. 3 months for Sis (Sis has policy) 3 00.”

We believe it to be unnecessary to pass upon the question of whether the page from the notebook or ledger kept by the witness was, or was not, properly admitted in evidence. We believe, however, he was entitled to refresh his memory from it. The answers of the witness to the interrogatories were given on May 13, 1960, and he testified that he had not looked at or thought about the matters about which he was testifying for about four years. He stated that he did notify Mercury Life Insurance Company that his sister was confined to the hospital, and his “ledger” reflects this was done on May 2, 1956 (less than three days after her entry into the hospital on April 30). He stated that he wrote to “both companies” (Mercury Life Insurance Company and “Auto Owners”, ■ presumably another insurance company, “for papers to file claim for Sis”). He did not recall the date he received the claim forms from the insurance company, but knows he did receive them by reason of the red “X” placed opposite the entries referring to his correspondence with such companies. Further, he stated, “I got the forms from both companies and threw them with her policies on the dresser for her to have when she was home from the hospital.” And, “ * * * when Nellie came home to Nebraska City from the hospital we filled out the forms together * * *.” The witness was returning to his own home in Iowa the next day, and did not himself send the forms to defendant company, hut left them with his sister to send in; consequently, he had no idea when she sent them in, since he was then in Iowa. He stated that he received only one form from Mercury Insurance Company, and he helped her fill out the form for that company. “I returned nothing to anybody. All papers were in a pile at Nellie’s home when I left for home. Sis did all the returning.” “* * * She came home from Omaha hospital. I came home to Iowa.”

From the foregoing evidence, we think it may be concluded that defendant insurance company was furnished written notice of plaintiff’s illness, if not within 10 days, then at a time when she was still confined to a hospital, and that defendant company, after such notice, and while plaintiff was still hospitalized, did send a claim form to plaintiff at the request of her brother. If it is not affirmatively shown that the notice of the illness was furnished defendant within ten days after the commencement of disability from such sickness, it is, we believe, conclusively shown that such notice was furnished while plaintiff was still in the hospital and while she was still suffering from the disabilities of such illness, from which facts it may be concluded that it was not reasonably possible for plaintiff to furnish notice to defendant of her sickness within ten days after the commencement of disability therefrom, and that such notice was given as soon as was reasonably possible in accordance with the terms of the policy.

The record in this case does not reflect the nature of the illness that resulted in plaintiff's first period of hospitalization, which ended on April 22, 19S6. While it may be assumed that she was hospitalized on the first occasion for the same illness that caused her to be hospitalized on the second occasion (April 30 to June 9, 1956),-we believe it would be equally reasonable to assume that she may have been hospitalized due to any one of hundreds of other sicknesses, infirmities or injuries for which people are hospitalized each day. In any event, since the plaintiff is precluded, under express provisions of the policy, from recovering benefits for both periods of her hospitalization because there was an interval of less than thirty days between the first period of hospitalization on April 19th or 20th, and her second hospital entry on April 30, 1956, we believe plaintiff had the right to make an election or choice whether to claim the benefits for the first and relatively short period of hospitalization, or for the second and longer period of hospitalization. Under the circumstances of this case, since defendant insurance company has paid nothing to plaintiff for either period of her hospitalization, we do not think that defendant is in position to urge, as a defense to plaintiff’s claim for benefits based solely upon her second period of hospitalization, that there was an interval of less than thirty days between the two hospital entries, and thus relieve itself of all liability.

Plaintiff was released from the Omaha hospital on June 9, 1956 and, under the terms of the policy, she had ninety days thereafter within which to file proof of loss. As we calculate it, the last day upon which proof of loss might have been furnished to defendant insurance company was September 7, 1956. Exhibit No. 6, offered by plaintiff, is a letter from defendant insurance company, dated September 12, 1956, which reads as follows:

“Mr. Bert M. Brown
Box 126
Livermore 4, Iowa
“Re: Claim MH-1016
Policy No. 444105
Mrs. Nellie M. Parker
“Dear Mr. Brown:
“Answering your letter of September 7th for which we thank you.
“Please be advised that we are in receipt of claim forms and hospital statement in the above captioned subject. However, we are awaiting additional information pertinent to this matter before making a decision as to the disposition of this claim.
“Upon receipt of said information, the claims committee will advise you immediately as to their decision.
“Very truly yours,
MERCURY LIFE INSURANCE COMPANY
S. T. Roberts
S. T. Roberts
Claims Department
“STR :s
cc: Mrs. Nellie M. Parker”

The addressee in the above letter is Bert “M.” Brown, the brother of plaintiff, and the letter is obviously a reply to an inquiry made by him regarding the status of his sister’s (plaintiff’s) claim. The witness Brown.testified in answer to written interrogatories : “I returned nothing to anybody. * ■ * *. Sis did all the returning.” If the witness’ statement is true, it would appear that plaintiff did, in fact, furnish some form of proof of loss to defendant insurance company, and that defendant received plaintiff’s claim forms within the 90 days allowed by the policy and prior to Brown’s letter of September 7th. The letter from the insurance company acknowledges receipt of claim forms and hospital statement, but says they are awaiting additional information before making a decision. It does not say what specific additional information they desire and makes no request of either Brown or of plaintiff for any additional information.

Defendant offered in evidence a letter dated September 25, 1956, purporting to be from plaintiff, Nellie Mae Parker, and which bears a stamp of the Mercury Life Insurance Company reflecting that the letter was received in its office on September 27, 1956 at 9:00 o’clock. The letter reads in part as follows:

“Dear Sirs—
Just rec’d your card requesting itemized Hos’p Bills so here they are.”

Defendant does not contend that the proof of loss furnished by plaintiff was inadequate or insufficient, but merely that it was not furnished them within the 90-day period called for in its contract of insurance. We believe the record here affirmatively shows that defendant insurance company received proof of loss furnished by plaintiff prior to September 7, 1956 and, if not, that defendant waived the strict construction of the contract by requesting plaintiff to furnish “itemized Hos’p Bills” after the expiration of such 90-day period.

Defendant-appellant has based its appeal upon thirteen points of error, most of which have been disposed of by the above discussion. Points 1, 2, 3, 4 and 6 are “no evidence” points. In our consideration of these points we have carefully examined the evidence; and after viewing the evidence before us in the light most favorable to the verdict, and disregarding all evidence which is adverse, contrary or conflicting to the favorable evidence, we have concluded that there is evidence to support the judgment of the trial court. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508; Robertson v. Robertson, 159 Tex. 567, 323 S.W.2d 938; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696. Defendant also contends (Point 5) that when plaintiff was transferred by ambulance from St. Mary’s Hospital in Nebraska City, to St. Joseph’s Hospital in Omaha, on May 12, 1956, such constituted a separate hospital entry (not separated by a thirty-day interval), and that plaintiff’s confinement in the hospital at Omaha was therefore not covered by the terms of the policy. As we see it, plaintiff’s hospitalization was continuous during such period, and we overrule such contention without further discussion.

Raised for the first time on this appeal (Point 7) is the contention that plaintiff was over 60 years of age on the dates of the losses for which claim was made, and that the insurance policy provided that it would not cover anyone over 60 years of age. This defense was not plead by defendant; there is no contention that plaintiff falsely stated her age at the time that the policy of insurance was applied for; on the contrary, there is evidence to show that she truthfully and correctly stated her age; and there is also evidence that defendant insurance company, with notice of plaintiff’s correct age, continued to receive and accept the premiums paid by plaintiff on such policy for the periods including the dates of the losses for which claim was made. We therefore overrule this point. Art. 3.70-7, Insurance Code, V.A.T.C.S.

Having considered all points raised by defendant, we are of the opinion that they should he overruled, and it is so ordered.

Finding no reversible error, the judgment of the trial court is affirmed.