author: LANGDON, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Herman BEARD, Sr., Appellee.
    No. 16618.
    Court of Civil Appeals of Texas. Fort Worth.
    April 16, 1965.
    Rehearing Denied May 14, 1965.

      Nelson & Sherrod and Stan Carter, Wichita Falls, for appellant.
    Peery, Wilson & Jameson and Don B. Morgan, Wichita Falls, for appellee.
   LANGDON, Justice.

This is a Workmen’s Compensation case for general disability. The jury found total temporary disability of seven weeks, followed by permanent partial disability.

The appellant, by its first three points, contends the court erred in submitting special issue No. 17 inquiring as to whether “ * * * Plaintiff’s incapacity to labor, if any, is not caused solely by a pre-existing sacrolized vertebra, and arthritic condition, a calcified artery or a combination thereof independent of and wholly disassociated from the injury of August 7, 1963”, because it made no distinction as to whether the incapacity inquired about related to the past or to the future, and in refusing its two requested issues which did make such distinction.

“ * * * it is the settled law of this state that liability for damages for personal injury cannot be avoided by merely showing that the person injured was not a well person at the time of injury. * * * where injury is sustained by an employee in the course of his employment which results in his disability within the meaning of our Compensation Law, compensation therefor will not be denied, notwithstanding said injury is aggravated or enhanced by the effect of diseases existing at the time, or after-wards occurring.” Commercial Standard Ins. Co. v. Noack, 62 S.W.2d 72 (Tex.Com.App., 1933, approved by Sup.Ct.) ; Armour & Co. v. Tomlin, 60 S.W.2d 204 (Tex.Com.App., 1933).

In order for a prior or existing disease, impairment or condition to constitute a defense to a claim for compensation it must be established that such prior or existing disease, impairment or condition or some combination thereof standing alone is the sole cause of the incapacity. Otherwise stated, it must be shown that such prior or existing disease, impairment or condition or combination thereof is disassociated or disconnected with and not aggravated by the injury or incapacity upon which the claim for compensation is based.

The appellant Insurance Company must plead such matter as a sole cause defense and secure favorable findings thereon. The burden of proving the negative of the sole cause issue is upon the claimant.

The issue in question was couched in language which properly placed the burden upon the claimant. In considering the issue and its answer thereto the jury was confronted with every specific infirmity, disease, impaired physical condition or any combination thereof which were supported by the record.

The issue submitted by the court fairly presented the ultimate question and accorded to the appellant the rights to which it was entitled. Liberty Universal Insurance Company v. Burrell, 386 S.W.2d 323 (Fort Worth Tex.Civ.App., 1965, application for writ pending); Texas Employers’ Insurance Association v. Ham, 333 S.W.2d 438 (Fort Worth Tex.Civ.App., 1960, ref., n. r. e.), and cases cited therein; Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356, 357.

We find no impropriety in the court’s refusal of the two issues requested by appellant.

The appellant’s points four through eight are directed at specific portions of jury argument permitted over objection, and point nine asserts that the argument as a whole was so prejudicial that it was error for the court to refuse to grant a new trial because thereof.

The specific complaints were directed against comments that (1) an adjuster who was in the courtroom during the trial failed to take the stand and testify, (2) plaintiff on leaving a job had always obtained a better paying job, (3) in reading an answer to request for admission No. 21 which had not been introduced in evidence, and (4) advising the jury that if they believed that plaintiff had any injury at all they must find his disability was not caused solely by preexisting conditions.

When the record reflects that a potential witness is under the control of and available to the opposite party it is proper to direct the jury’s attention to the fact that the witness did not testify. 56 Tex. Jur.2d 601, § 263. See also § 261, p. 599, of the same text and authorities cited. Whitener v. Traders and General Ins. Co., 155 Tex. 461, 289 S.W.2d 233 (1956), (2).

The reference to better paying jobs was a reasonable, fair and legitimate inference from the facts in evidence. “Counsel may express his own conclusions from the evidence though they appear to be illogical or improbable.” 56 Tex.Jur.2d 590-595, § 257.

No objection was made to the reading of the answer to plaintiff’s request for admission No. 21 on the ground that it had not been introduced in evidence. Thus the court’s attention was not directed to this fact.

The objection was, “ * * * we object to him arguing from the answers to the Request for Admissions”. The record reflects that requests for admissions Nos. 18 and 19 and the answers were in evidence and that the appellant made the same answer to request No. 21 as was made to requests Nos. 18 and 19 with some additional comment which is not pertinent to the appeal.

In considering the record as a whole we are of the opinion that the errors, if any, complained of in connection with the jury argument considered singly or collectively did not amount to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure.

By its points ten through thirteen the appellant contends the evidence is insufficient to support the jury’s findings that (1) the plaintiff sustained permanent disability and (2) that the incapacity was not caused solely by preexisting diseases and conditions and that such findings are contrary to the overwhelming weight of the evidence.

In reviewing the record in this case we have concluded that there is ample evidence to support the submission of the issues in question and the jury’s answers thereto.

All points of error are overruled and the judgment affirmed.


source: Caselaw Access Project

author: FRASER, Chief Justice.

license: Public Domain

text:
    The STATE of Texas et al., Appellants, v. Mary Dan Wilson SANDLIN et al., Appellees.
    No. 5691.
    Court of Civil Appeals of Texas. El Paso.
    April 7, 1965.
    Rehearing Denied May 5, 1965.
    Waggoner Carr, Atty. Gen., Milton Richardson, Asst. Atty. Gen., J. S. Branwell, Asst. Atty. Gen., Austin, for appellants.
    Black & Stayton, Austin, for appellees.
   FRASER, Chief Justice.

This is a trespass to try title suit filed by appellees against appellant State of Texas (and other parties who have been dismissed), seeking recovery of the fee simple title to certain lands including Section 37, Block D-11, T. C. Ry. Co., which is the land here in controversy. It seems that on August 9, 1881 a deputy surveyor of Pecos County, named Charles Archer, made a survey establishing the boundaries of Section 37, which lies in what is now known as Brewster County, but which at that time was in what was known as Presidio County. The surveyor, Archer, was not authorized to survey in Presidio County, his own district being Pecos County. Section 37 was patented on the Archer field notes by the State of Texas on June S, 1884. On August 22, 1882, one S. A. Thompson, Deputy Surveyor of Presidio County, surveyed the same territory and described the land in question as Section 62, Block 343, Tex-Mex Ry. Co. In 1887 Brewster County was created from Presidio County by act of the 20th Legislature for the State of Texas.

Appellants argue that the Archer survey, described as Section 37, was void because Archer was surveying outside of the area of his own county and district; that the Thompson survey in 1882 was the legal and proper survey because he was deputy surveyor for that area; that the granting of the patent above referred to was void because it was based on an invalid and void survey; and lastly, that the Validating Act of April 16, 1889 did not validate void surveys where subsequent intervening rights have occurred, and that here, 471.8 acres had, since these surveys, been appropriated to a permanent school fund of the State of Texas. The trial court granted judgment to the appellees.

Appellees argue that the defect was curable and was cured by the patent issued by the State of Texas, and the defect itself by legislation, to-wit, the Validating Act above mentioned.

We find ourselves in agreement with the trial court for the following reasons. The cases cited by appellants to support their position that the Archer survey was void are very early cases, and their language indicates that the courts did not mean that surveys conducted by a surveyor outside of his own authorized district were completely, unalterably and incurably void, but were void unless cured or the defect remedied. As for example, in Peacock v. Hammond, 6 Tex. 544, the court indicates that the survey was void because it did not receive the approval of the surveyor, suggesting or implying that it would or could have been validated by approval of the surveyor. Also, in Linn v. Scott, 3 Tex. 57, the court suggested or stated that legislation could have made such survey “good and valid” except for the fact that the suit was already filed when the legislation was passed. These cases, taken in conjunction with the wording of the Validating Act, indicate that a survey of the nature with which we are here concerned, could be validated, and was therefore not incurably void. There are other cases holding that the word “void” is often used interchangeably with “voidable” or “illegal”, as appears in 44 Words and Phrases; and so it seems to us that the cases have clearly enunciated that a survey of this nature is not a dead nullity, incurable in any way, but rather constituted a defective survey which was later legalized by patent and a Validating Act. Such language is found in the following cases: Wiener v. Zwieb, 105 Tex. 262, 141 S.W. 771; Overstreet v. Houston County, Tex.Civ.App., 365 S.W.2d 409. Then, of course, there is a long line of cases holding that when a thing is actually void, it can never be cured, is good nowhere and bad everywhere. We believe that the situation here created by the Archer survey was one that was defective but subject to being cured, as set forth above.

We are also faced with the situation here that the State of Texas issued its patent, thereby stamping the approval of the State on the survey. There are several cases that state that a patent constitutes ratification and adoption of a survey. Griffith v. Rife, 72 Tex. 185, 12 S.W. 168; State v. Humble Oil & Refining Co., Tex.Civ.App., 187 S.W.2d 93 (n. w. h.) ; La. Ry. & Nav. Co. v. State, Tex.Civ.App., 298 S.W. 462; aff’d. Tex.Com.App., 7 S.W.2d 71. The above cases are also authority for the effect of the Validating Act of 1889. This Act expressly provides, inter alia, as follows:

“Sec. 2. That all surveys heretofore made by any county or district survey- or, which would otherwise be valid, shall not be called in question on account of said surveys having been made outside of the proper county or district, but said surveys shall be valid the same as if the said surveyor had jurisdiction in the territory embracing the same.
“Sec. 3. The provisions of this act shall not apply to nor affect the rights of third persons heretofore acquired by-virtue of any purchase from the state location or surveys made in accordance with the laws in force at the time of: such location and survey.”

In passing upon this Act, the Court of Civil Appeals at Waco, in State v. Humble Oil & Refining Co. (supra) set forth very clearly that the Validating Act was an attempt to see that justice was done, and that men would not lose their rights to land because of some misunderstanding or technicality arising from the provisions of the land laws of the Republic. See also Abernathy County Line Consol. etc. v. New Deal R. H. S. Dist., 175 S.W.2d 446 (Civ.App., ref. w. m.), and State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065. In assessing the effect of the matters set forth above, it must be clearly kept in mind that the Archer survey, upon which the appellees here depend, was first in time, and that the State of Texas did issue a patent valid on its face, based on such survey. It is our feeling and our holding that the Archer survey, defective at the time (1881), was legalized by both the patent issued by the State and the Validating Act in 1889.

Appellants also urge that the curative acts above referred to with reference to the Archer survey amounted to an unconstitutional disposition of school lands. We cannot agree with this proposition because no boundaries are being shifted here, nor is any vacant land being appropriated. Appellants cite the case of Mills v. Needham, 28 Tex.Civ.App. 547, 67 S.W. 1097, and Eyl v. State, 37 Tex.Civ.App. 297, 84 S.W. 607; but in both those cases the school survey was first in time, contrary to the position prevailing in the case before us. We feel, therefore, that there is no unconstitutional disposition of school lands.

Lastly, appellees bring up the case of Roark v. Smith, described as Cause No. 1934 in the 83rd District Court of Brewster County, Texas, styled F. N. Roark, et al., v. H. G. Smith, et al., which they maintain amounts to a judicial estoppel restraining the State from contesting the validity of the Archer survey. We do not go into this matter as we think it unnecessary, and that it is adequately disposed of by the foregoing paragraphs. However, we should like to point out that appellants’ cases, which it is alleged hold that a State cannot be judicially estopped, refer rather to the acts of State employees than to the judgments of duly constituted State courts; as, for example, our Supreme Court, in Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83, speaking through Justice Calvert, stated as follows: “The acts and conduct of its officers and agents cannot estop it from recovering those lands or the value of the minerals produced therefrom.” This seems clearly to indicate that in these cases the doctrine of estoppel, as applied to the State, relates to the acts or conduct of its officials rather than to the decisions of its courts.

In summation, we hold that while the Archer survey was defective when made, it was validated and legalized by the issuance of the State patent granted by the State of Texas, June 5, 1884, and also by the Validating Act of April 16, 1889. We further find that this holding does not constitute any unconstitutional disposition of school lands, nor is it in contravention of the State policy with reference to early patents. It is our opinion, therefore, and we so hold, that the decision of the trial court was correct.

Appellants’ point of error is therefore overruled and the decision of the trial court accordingly affirmed.


author: FANNING, Justice.

text:
    Giles MILLER, Appellant, v. Martha CARLSON, Appellee.
    No. 7632.
    Court of Civil Appeals of Texas. Texarkana.
    April 13, 1965.
    Rehearing Denied May 4, 1965.

      Dean Carlton, Don C. Alexander, Dallas, for appellant.
    Roy P. Cookston, Dallas, for appellee.
   FANNING, Justice.

Appellee Martha Carlson, a real estate broker, sued appellant Giles Miller for a 6% commission for negotiation of a $75,000.00 residential sale from Miller to Henry Stram. Appellee also sued Stram for negotiating a companion sales contract (amounting to an exchange of the residences of Miller and Stram, with Stram to pay certain differences) but settled with defendant Stram after the close of the testimony.

Special issues 1, 2, 4, and 7 and the jury’s responses were as follows:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that the Defendant (Miller) entered into a written agreement (Plaintiff’s Exhibit No. 1) with Stram on or about Sept. 20, 1962 for the sale and purchase of the Miller property at 3919 Beverly Drive, Highland Park, Texas?
“Answer ‘Yes’ or ‘no’.
“ANSWER: Yes.
“If you have answered ‘yes’ to the preceding special issue, then you will then answer the following special issue; otherwise, you need not answer same.
“By the term ‘negotiate’ as used herein, is meant to arrange a sale or business transaction which may or may not be consuwated.
“SPECIAL ISSUE NO. 2
“Do you find from a preponderance of the evidence that the Plaintiff (Mrs. Carlson) negotiated the proposed sale, if any, inquired about in Special Issue No. 1?
“Answer ‘Yes’ or ‘no’.
“ANSWER: yes.
“SPECIAL ISSUE NO. 4
“Do you find from a preponderance of the evidence that Stram and the Defendant (Miller) agreed to release each other from the agreement, if any, set forth in Plaintiff’s Exhibit No. 1, if such you have found existed, prior to any performance provided for in said Plaintiff’s Exhibit No. 1 ?
“Answer ‘yes’ or ‘no’.
“ANSWER: yes
“SPECIAL ISSUE NO. 7
“Do you find from a preponderance of the evidence that there was a defect in the title to the Miller property as described in Plaintiff’s Exhibit No. 1 on 20 September 1962?
“Answer ‘yes’ or ‘no’.
“ANSWER: no.”

The trial court entered judgment for plaintiff-appellee against Miller for the $4500.00 commission sued for, plus court costs. Defendant-appellant Miller has appealed.

The written sales contract between Miller, as seller, and Stram, as purchaser, of Sept. 20, 1962, was apparently more or less a standard form of sales contract with certain additional provisions which were to the effect that: (1) purchaser Stram would obtain a $56,000.00 loan; (2) objections raised by the title company would be cured in 30 days and (3) the sale of Stram’s home to Miller would be simultaneously completed.

Appellee’s rights as a broker are spelled out in the following provision of the contract;

“Seller agrees to pay the undersigned agent a commission of six per cent (6%) of the sale price for negotiating the sale hereunder, and in the event of default by the Purchaser to pay to the agent a sum equal to the commission from the deposit receipted for above.”

Appellant by its 1st, 2nd, 3rd and 4th points contends to the effect that the trial court erred in overruling appellant’s motion for judgment n. o. v. and erred in rendering the judgment in question because the conditions of the contract failed and were not satisfied, and because the contract limited any recovery by appellee to purchaser Stram’s deposit. Appellee in reply to such points by her counterpoints 1, 2, 3 and 4, contends to the effect that the trial court correctly awarded appellee judgment without regard to whether conditions relating to the right between vendor and purchaser were met because of the jury finding that said vendor and purchaser released each other from obligation on the contract before performance of either was required, and upon the further jury finding that appellee negotiated the contract and was entitled to her commission under the contract, and that the evidence does not establish that the three conditions referred to were not met, and that appellant’s failure to present such issue to the trial court constitutes a waiver of same, and further that the contract in issue did not limit the broker appellee to recovery of her commission out of the purchaser’s deposit.

Mrs. Carlson was a duly licensed real estate broker. She testified that she had a written listing from Miller to sell his property and Miller’s testimony confirms the fact that he had listing agreements with Mrs. Carlson for about a year prior to the contract in question. Mrs. Carlson testified to the effect that she had secured a $56,000.00 loan commitment for Stram, but that Stram did not apply for the loan. Stram gave a $2000.00 check for the purchase deposit payable to a title company, which check was not paid, however Stram testified to the effect that he had ample funds in Hillcrest Bank to pay the check, that he also had on hand at said time $5000.-00 in a building and loan association and that he was amply able to pay the check. It is clearly apparent from the record that Stram’s conduct in not going forward with his contracts was acquiesced in by Miller, as there was testimony from Stram that Miller told him (on a date identified by Stram as approximately Sept. 27, 1962) that: “Well, primarily that he did not want me to buy a house that I didn’t want to buy, and basically that is what it amounted to. He said that there was no obligation as far as he was concerned.” (Emphasis added)

Defendant-appellant Giles Miller in paragraph XIII of his first amended original answer pled as follows:

“That before any breach of the instrument alleged to be a contract in Plaintiff’s Petition herein it was mutually agreed by and between Defendant MILLER and Defendant STRAM that the said contract should be waived, abandoned and rescinded, and the same was then and there fully waived, abandoned and rescinded.” (Emphasis added)

Although said pleading was later abandoned by defendant and therefore did not remain in the case as a formal judicial admission against Miller, the said pleading was offered in evidence by plaintiff-appellant and was admitted in evidence by the trial court over defendant Miller’s objections. The pleading was clearly admissible in evidence as a statement or admission once seriously made by defendant Miller which was inconsistent with the position he was taking in the trial. In this connection see 2 McCormick and Ray, Texas Law of Evidence, Sec. 1146, wherein it was stated in part as follows:

“When a pleading is abandoned, superseded or amended it disappears from the record as a formal judicial admission and is, of course, no longer binding on the pleader in the sense that' he is prevented from disputing the facts contained therein. But it still remains as a statement once seriously made by him. Thus, like any other utterance, if it is inconsistent with the party’s present position it may be received in evidence as an admission under the principle of the present chapter.” (Emphasis added)

Also in this connection see the following authorities: Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (1956); Houston, E. & W. T. Ry. Co. v. DeWalt, 96 Tex. 121, 70 S.W. 531 (1902); Barrett v. Featherstone, 89 Tex. 567, 36 S.W. 245 and 35 S. W. 11 (1896).

It is also clearly apparent from the record that Stram and Miller did not have the consent of Mrs. Carlson to mutually cancel and rescind their purchase contracts, and did not secure Mrs. Carlson’s consent to waive or release her rights to collect broker’s commissions from both Miller and Stram. The record also shows that the title company initially approved the title to Miller’s property according to the field notes furnished by Miller to Mrs. Carlson to place in the contract. Later on, after the lawsuit was filed and after Miller and Strain had mutually released each other from their contracts, the title company made objections to a 5-foot strip of Miller’s property.

In 9 Tex.Jur.2d, Sec. 24, Brokers, it is stated in part as follows:

“Regardless of the nature of his interest in the property, the one who employs a broker to sell the property is liable for the broker’s commission. This is true even though he has no title to the property. Thus, a husband employing a broker to find a purchaser for a homestead cannot escape liability for the commission by reason of his wife’s refusal to sign a deed of conveyance.” (Emphasis added).

In 9 Tex.Jur.2d, Sec. 48, Brokers, it is stated in part as follows:

“Generally the broker has fully performed under his listing agreement and is entitled to his commission when the owner enters into a contract of sale with the purchaser produced by the broker. No question as to the readiness, willingness, or ability of the purchaser is thereafter involved. By executing a contract with the purchaser produced by the broker, the seller accepts the purchaser as being ready, willing and able to buy on terms and conditions satisfactory to the seller. If the seller later decides that the purchaser is not satisfactory or decides that the contract does not contain terms that entitle him to enforce it, specifically, he is nevertheless obligated to pay what he has agreed to the broker who procured the purchaser’s signature whether the contract is ever consummated or not.”

In Elmen v. Winfield, Tex.Civ.App., 80 S.W.2d 343, writ dism. (1935), it was stated in part as follows:

“Nor can a broker be deprived of his commission by an agreement of cancellation or release made by the principal and the customer, unless the agreement is entered into at the broker’s request or with his consent.”

The case of Donahue v. Fuller, Tex.Civ.App., 5 S.W.2d 1037, n. w. h. (1928), cited with approval in Winkler v. Cox, Tex.Civ.App., 243 S.W.2d 248, n. w. h. (1951), is illustrative of the rights of the parties in the suit at bar. In the Donahue case the broker had negotiated an exchange of properties as the case at bar. Both parties refused or declined to consummate the exchange, each claiming a right to do so. In defining the broker’s rights in such a situation, the court stated in part as follows:

“There is a very broad distinction between making or causing a sale to be made and negotiating a sale. In the latter case it means to discuss or arrange a sale or bargain; to arrange the preliminaries of a business transaction; the deliberation, discussion, or conference upon the terms of a proposed agreement; the act of settling or arranging the terms and conditions of a bargain, sale, or other business transaction. Black’s Law Dictionary. The negotiations may never terminate in a sale. A sale is a contract by which for a consideration one party transfers to another an interest in property. It is an agreement by which one gives a thing for a price in current money and the other gives the price in order to have the thing itself.
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“If an agent therefore is employed simply to make a sale, it is necessary in such case for the sale to be actually consummated to earn his commission; but, where the agent is only required to negotiate a sale to earn his commission, his commission is dependent upon the performance of that obligation, to the satisfaction of his principal, whether the sale is actually completed or not.” (emphasis added).

Appellant Miller voluntarily signed the contract and accepted the terms of sale. The conditions by which Miller and Stram might escape liability between themselves would not deprive Mrs. Carlson of her broker’s commission for negotiating the sales as Mrs. Carlson did everything that was required of her and the failure of Miller and Stram to fulfill their contracts with each other was not occasioned by any fault on the part of the broker, Mrs. Carlson. Mrs. Carlson brought the parties together, they signed the purchase contracts, and by doing so were satisfied that each of them were ready, willing and able purchasers. Mrs. Carlson testified that she secured a commitment for a $56,000.00 loan for purchaser Stram, and plaintiff’s exhibit Nos. 3 and 4 show that the title company in January 1963 had passed the titles on Miller’s and Stram’s properties and was ready to close.

The fact that after the suit was brought the title company found a defect in title to a 5-foot strip of Miller’s land would not defeat the broker’s right to commission, since Miller contracted to sell the land described in the field notes appearing in the contract, and Miller would have been liable to the broker for her commission even if he had had no character of title to the property he contracted to sell. See the following authorities: Fritter v. Pendelton, Tex.Civ.App., 134 S.W. 1186, n. w. h. (1911); Nail v. Boothe, Tex.Civ.App., 265 S.W. 1051, n. w. h. (1924); 9 Tex.Jur.2d, Sec. 24, Brokers.

The contract in question does not contain any provision that the broker’s commission is contingent upon the completion of the parties of the negotiated sale. The fact that the contract in question had conditions pertaining to obligations upon the part of the purchaser and seller would not deprive Mrs. Carlson, the broker of her commission since she procured and negotiated a legal and binding contract with which the parties were satisfied until shortly prior to the time they mutually released each other from their obligations under their contract, and prior to time for performance under their contracts, and without Mrs. Carlson’s consent and without any waiver from her to insist upon her rights to collect commissions from both Stram and Miller. In this connection see Conklin v. Krakauer, 70 Tex. 735, 11 S. W. 117 (1886), wherein it was stated in part as follows :

“The evidence shows beyond question that a legal and binding contract to sell the lots was made, and that this was brought about through the agency of Conklin, and it forbids the conclusion that he did less than entitles him to compensation. A broker is entitled to compensation when he procures a purchaser with whom his principal is satisfied, and who actually contracts for the property at a price satisfactory to the owner.”

There were pleadings to support the submission of special issue No. 4 (relating to the agreement between Miller and Stram to mutually release themselves from the obligation of the written contract in question prior to any performance provided for in said contract); there was ample evidence of probative force to support the submission of issue No. 4; there was sufficient evidence to support the submission of issue 4; there was ample evidence of probative force to support the jury’s answer to special issue No. 4 and the evidence was sufficient to support the finding of the jury to issue No. 4. Furthermore, the record does not show any objections by Miller to the submission of special issue No. 4. Appellant’s 5th, 6th, 7th and 8th points are overruled.

Appellee’s recovery is not limited to the check deposit made by Stram under the contract in question and under the record in this case since Mrs. Carlson, the broker, was not a party to and did not agree to the release by Miller of Stram from the performance of his obligations under the contract. In this connection see 9 Tex.Jur.2d, Brokers, Sec. 64, wherein it is stated in part as follows:

“Unless the broker is a party to the seller’s cancellation of the agreement or release of the purchase, the cancellation or release does not deprive the prober (broker) of his commission. Nor in such a case is recovery limited to a commission on the initial down payment.” (Interpolation and emphasis added)

We hold that the trial court correctly rendered judgment for plaintiff-appellee against the defendant-appellant Miller for the 6% commission Miller agreed to pay Mrs. Carlson for negotiating the sale contract in question.

Appellant’s 1st, 2d, 3rd and 4th points are overruled.

The judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    FIRST CITY NATIONAL BANK OF HOUSTON, Executor of the Estate of C. M. Dow, Deceased, Appellant, v. E. C. JAPHET, Appellee.
    No. 14499.
    Court of Civil Appeals of Texas. Houston.
    April 15, 1965.
    Rehearing Denied May 6, 1965.

      Fulbright, Crooker, Freeman, Bates & Jaworski, and Tom Connally, Houston, for appellant.
    Barrow, Bland, Rehmet & Singleton, and R. F. Wheless, Jr., Houston, for appellee.
   WERLEIN, Justice.

Appellee, E. C. Japhet, brought this suit against the executor of the Estate of C. M. Dow, Deceased, to recover for damages caused by Mr. Dow’s automobile to a tree, shrubbery and a brick wall on appellee’s premises located at the southwest corner of Kirby Drive and Del Monte in Houston, Texas. The evidence shows that Mr. Dow was driving his Cadillac in a southerly direction on Kirby Drive; that the car ran over a curbed grass plot, or island, on the west side of Kirby, such island separating traffic moving in a westerly direction into Del Monte from the traffic moving in an easterly direction from Del Monte into Kirby Drive, and then proceeded to cross the southern portion of Del Monte and to run over the curb and south sidewalk thereof and to traverse appellee’s premises, causing the damage complained of. At the conclusion of all the evidence, the trial court instructed a verdict in favor of ap-pellee in the sum of $740.00, the agreed amount of damages to his property.

Appellant contends that the trial court erred in granting appellee’s motion for an instructed verdict and also in overruling its motion for an instructed verdict; that the occurrence was the result of an act of God or an unavoidable accident; that there was evidence from which the jury could have believed that Mr. Dow was suddenly incapacitated or was dead at the time his automobile entered the premises of appellee and there was no allegation or proof that Mr. Dow was engaged in an extra hazardous activity and no evidence of negligence on the part of Mr. Dow or intentional act resulting in trespass.

When the witness, McFarland, reached the car some five minutes after the occurrence, he saw the body of Mr. Dow slumped down on the seat of the automobile, partly behind the steering wheel. He heard no breathing and observed no movement of the body. He estimated the distance from the tire marks on the south curb of Del Monte back to the brick fence on appellee’s premises at approximately 75 feet, and from the curbed island to the south curb of Del Monte at about 35 feet. Appellee testified that on April 18 at about 7:15 p. m. he heard a thud. He believed he heard it twice— once when the Cadillac hit his terrace and again when it struck the tree and wall where it was resting. He went outside and saw a person behind the steering wheel in the car with his head slumped over. He had some abrasions and blood on his forehead which may have been caused by flying glass.

The opinion of the medical examiner of Harris County was admitted by agreement. It reads as follows:

“It is our opinion that the decedent, Charles Milby Dow, came to his death as a result of acute cardiac failure, due to calcific aortic stenosis.
“It cannot be determined medically whether said failure occurred prior or after C. M. Dow left the roadway and went into Mr. Japhet’s yard.”

Dr. Paul V. Ledbetter, a specialist in pericardo-vascular diseases, or diseases of the heart and arteries, testified in substance that Mr. Dow had become a patient of his in 1954, at the age of 51 years, and that he would come every year or so for a general examination; that he had come to see him every 10 days or two weeks at one time before his death; that Mr. Dow never did have a heart attack prior to the time of his death, but he had congestive heart failure ; that he had advised Mr. Dow that he could drive his car as it would involve no labor; that he had seen Mr. Dow at 2 o’clock on the day of his death and Mr. Dow advised him he felt better; that there was nothing to put him or a heart specialist on guard with regard to a cardiac arrest; that he would assume that something very suddenly occurred that caused Mr. Dow’s death; and that he would think that a ventricular fibrillation occurred, so that blood would no longer be sent properly up to his brain, causing loss of consciousness and death.

There is no direct evidence showing when or where Mr. Dow lapsed into unconsciousness or died. Appellant asserts that Mr. Dow had his heart attack and became unconscious before the car entered upon the premises of appellee and damaged appellee’s property. Appellee, on the other hand, takes the position that when the automobile jumped the curb and ran over the sidewalk in violation of a City ordinance, and damaged appellee’s property, appellee established a prima facie case of liability sounding in tort, and that then the burden of proof fell upon appellant to establish that Mr. Dow died or became unconscious and wholly incapacitated prior to the time the car entered appellee’s premises and damaged the same. Appellee contends that appellant had not met its burden of proof, and had failed to raise an issue of sudden incapacity prior to the trespass, and therefore the court properly instructed a verdict in his favor.

Appellee cites Restatement of the Law of Torts, Section 165, which reads as follows:

“One who recklessly or negligently, or as a result of an extra hazardous activity, enters land in the possession of another or causes a thing or third person so to enter is subject to liability to the possessor if, but only if, his presence or the presence of the thing or the third person upon the land causes harm to the land, to the possessor thereof or to a thing or a third person in whose security the possessor has a legally protected interest.”

There is nothing in the record to show that Mr. Dow was at the time of the occurrence in question engaged in any extra hazardous activity, or that he could have anticipated that he would have a heart attack. There is no evidence that he was driving recklessly or negligently, other than the circumstance that his Cadillac left the street, entered the premises of appellee and ran approximately 100 feet before coming to rest.

Appellee cites the case of Holmes v. McNeil, 356 Mo. 846, 204 S.W.2d 303, where it is stated:

“The fact that the motor vehicle proceeded 100 yards diagonally across the boulevard, gathering speed, jumped or passed over a high curb, leaving the traffic for vehicular travel, and struck a light standard there situate, is prima facie evidence of negligence.”

In that case, however, there was no evidence that the driver of the car lost consciousness or became incapacitated.

The main case relied upon by appellee is Leary v. Oates, Tex.Civ.App., 84 S.W.2d 486. The testimony in such case indicated that immediately prior to the accident Leary was probably momentarily in a state of unconsciousness as the result of a sudden attack of indigestion or intestinal disturbance which caused him to lose control of his car. His automobile veered to the left-hand or wrong side of the highway and struck the automobile of Oates. The jury found that the collision was not an unavoidable accident and that Leary was not unconscious as the result of physical ailment just prior to the collision. The court cited a number of cases in which it was held in effect that an insane or incompetent person was liable for his torts on the principle that where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it. The court concluded :

“It is our conclusion that if Leary was in an unconscious state of mind and that the accident occurred solely by reason thereby, yet that fact constitutes no defense to plaintiff’s suit; and further that the court did not err in failing to submit the issue of alleged negligence of Leary, since that was established by uncontroverted evidence.”

The foregoing conclusion of the court in Leary v. Oates was not necessary to a decision of the case. The findings of the jury and the supplemental findings of the trial court were amply supported by the evidence and were sufficient to support the judgment in favor of the plaintiff.

Appellee also relies upon those cases, with which this Court does not disagree, which hold that before an operator can be exonerated on the ground of incapacity, the evidence must have been sufficient to prove a sudden and unanticipated loss of consciousness. See 28 A.L.R.2d, p. 22; Driver v. Brooks, 1940, 176 Va. 317, 10 S.E.2d 887; Scott v. Long, 110 Ohio App. 516, 169 N.E.2d 700. In Keller v. Wonn, 1955, 140 W.Va. 860, 87 S.E.2d 453, the Court said:

“The plaintiff established a prima facie case of negligence * * * when he proved by several witnesses that Wonn’s automobile turned from the regular traffic lane in the street where it was travelling, ran across a restricted parking area of the street and onto the adjoining sidewalk, inflicting injuries upon the plaintiff who was without fault. It became the obligation of the defendant thereafter to show, if she could, that the injuries to the plaintiff resulted from a sudden attack suffered by the deceased, and that such attack was unforeseen and unanticipated.”

Appellant relies in part upon the Restatement of the Law of Torts, Section 166, which provides:

“Except where the actor is engaged in an extra-hazardous activity, an unintentional and non-negligent entry on land in the possession of another or causing a thing or third person to enter the land, does not subject the actor to liability to the possessor, even though the entry causes harm to the possessor or to a thing or third person in whose security the possessor has a legally protected interest.”

Illustration 2 under such section reads as follows:

“A, while driving his automobile along the street in the exercise of due care, is suddenly overcome by a paralytic stroke, which he had no reason to anticipate. He loses control of the automobile and falls across the steering wheel thereby turning the car so that it runs upon and damages B’s lawn. A is not liable to B.”

Appellant has undertaken to distinguish the instant case from those cases in which the defendant has been held liable for trespass where he intended the act which resulted in the trespass, but did not intend to invade the plaintiff’s land or inflict damage upon the plaintiff. In Schronk v. Gilliam, Tex.Civ.App., 380 S.W.2d 743, the defendant was held liable for damage to plaintiff’s land caused by poison dropped from an airplane. The defendant had trespassed upon plaintiff’s land because he had intended the act which caused the trespass, although he did not intend the poison to fall on plaintiff’s land. In Mountain States Tel. & Tel. Co. v. Vowell Const. Co., 161 Tex. 432, 341 S.W.2d 148, the defendant’s scraper was deliberately and intentionally used in making a cut to the designated subgrade. The scraper cut the defendant’s telephone cable, which was underground, and the defendant was held liable for the violation of plaintiff’s property right.

In Randall v. Shelton, Ky.1956, 293 S.W.2d 559, the plaintiff was standing in her yard when the defendant’s truck passed by, hurling a rock which struck the plaintiff, breaking her leg. The court said that since there was not an intentional trespass nor an extra hazardous activity, the plaintiff could not recover in the absence of a showing of negligence.

It seems clear that in the cases of Schronk v. Gilliam, supra, and Mountain States Tel. & Tel. Co. v. Vowell Const. Co., supra, the defendant intended the act which resulted in the trespass although there was no intentional invasion of plaintiff’s property. The instant case is clearly distinguishable from such cases, if as a fact Mr. Dow suffered an unforeseen and unanticipated heart attack which rendered him unconscious prior to the time that he entered upon appellee’s premises. The present case falls within Section 166 of the Restatement of the Law of Torts, and Illustration 2, supra, given under that Section. We do not disagree with appellee’s contention that he established a prima facie case of negligence and trespass in showing that Mr. Dow’s Cadillac took the course that it did and damaged appellee’s property. There was other evidence however, which clearly showed that Mr. Dow was not negligent in undertaking to drive his automobile down Kirby Drive since such driving was authorized by his heart specialist, and that he had no reason to anticipate or foresee that he would have a sudden heart attack and lapse into unconsciousness.

It seems improbable that the car driven by Mr. Dow would have run over the island in Del Monte Drive which was not in its direct path, and taken its strange course, unless Mr. Dow had for some reason become incapacitated. Unquestionably he did become incapacitated, and his incapacity resulted suddenly from heart failure which rendered him unconscious and resulted in his death.

It is our view that the fact that Mr. Dow, who had for some years suffered from congestive heart failure, was found slumped over behind his car’s steering wheel immediately after the crash, unconscious or dead, and that he died as a result of acute cardiac failure, coupled with the strange and extraordinary course his car took, constituted circumstantial evidence, more than a mere scintilla, which raised a fact issue of unavoidable accident and also, if pleaded, an issue as to whether C. M. Dow died or was incapacitated because of a sudden and unanticipated heart attack prior to leaving the roadway. We are of the opinion that the -court erred in instructing a verdict for appellee, thereby in effect holding as a matter of law that Mr. Dow was guilty of negligence or that he did not become unconscious or die before the Cadillac left the roadway, or that his incapacity vel non was immaterial. Appellant’s requested issue of unavoidable accident would include an act of God. Owens v. L. J. Miles Construction Co., Tex.Civ.App., 336 S.W.2d 189.

The rule of law enunciated in Section 166, Restatement of the Law of Torts, and in Illustration 2 thereunder, seems to us sound in principle. It has been adopted or applied in numerous cases of trespass in other jurisdictions, although admittedly there is a division of authority. It is our view that it should be applied in a case such as the present case where there is sufficient evidence to raise an issue of unconsciousness, incapacity or death prior to the alleged act of trespass.

In Phillips v. Sun Oil Co., 307 N.Y. 328, 121 N.E.2d 249, the court said:

“Trespass is an intentional harm at least to this extent: while the trespasser, to be liable, need not intend or expect the damaging consequence of his intrusion, he must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he willfully does, or which he does so negligently as to amount to willfulness.”

See also Edgarton v. H. P. Welch Co., 321 Mass. 603, 74 N.E.2d 674, 174 A.L.R. 462; McDermott v. Sway, 78 N.D. 521, 50 N.W.2d 235. In Wisconsin Power & Light Co. v. Columbia County, 1958, 3 Wis.2d 1, 87 N.W.2d 279, the court said: “The courts are moving away from the imposition of liability in trespass for invasions of property which are neither intended nor negligent, except where defendant’s activity is extrahazardous in nature. Prosser, op. cit., 55, 1 Harper & James, op. cit., 11-12.”

In the instant case if Mr. Dow was unconscious or dead prior to leaving the roadway and entering upon appellee’s property, his act of entering appellee’s property could not have been voluntary. We are of the opinion that the weight of authority and the better reasoning would prevent liability on the part of the estate of the deceased under such circumstances.

With respect to negligence, see the Annotation in 28 A.L.R.2d, p. 22, where it is stated:

“According to the great weight of authority, an operator of a motor vehicle who becomes suddenly stricken by a fainting spell or otherwise loses consciousness while driving, and for this reason is unable to control the vehicle, is not chargeable with negligence or gross negligence if his loss of consciousness is due to an unforeseen cause. In other words, proof that the driver momentarily lost consciousness and that such loss was not foreseeable constitutes a complete defense to an action against the driver based on negligence or gross negligence.”

See Section 15 under such Annotation for citation to numerous authorities in. many jurisdictions in the United States.

Reversed and remanded.


author: COLEMAN, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Phillip J. WALKOVAK, Appellee.
    No. 14494.
    Court of Civil Appeals of Texas. Houston.
    April 15, 1965.
    Rehearing Denied May 6, 1965.

      Walter E. Workman, Houston, and Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.
    Bill Allen, Houston, and Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is a workman’s compensation case in which a judgment was rendered in favor of the injured employee for 55% permanent partial disability.

Appellant has presented several assignments of error ultimately based on the proposition that the trial court was in error in permitting the question of the need for surgery to be presented to the jury where the employee had never demanded surgery before the Industrial Accident Board in view of the fact that the insurance company had not tendered surgery or admitted liability in the case, and that the Board had not caused an examination of the claimant to be made to determine whether or not surgery was advisable or likely to be beneficial to him.

It is appellant’s contention that this case is “the reverse side of the coin” of Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521. In both cases the evidence was tendered at trial for a limited purpose bearing upon the extent and duration of incapacity and disability. In Seel-bach evidence was tendered by the insurance company that an operation would probably substantially reduce the disability sustained by the claimant. The trial court’s refusal to admit such testimony was held to be proper since the carrier had not tendered surgery and admitted liability before the Board.

The basis of this decision lies in the fact that the trial court lacks the jurisdiction given to the Board to order or supervise an operation or direct a medical examination for the purpose of determining the advisability of that course. Since the Act contemplates that the benefits of surgery are to be determined by the actual results of surgery rather than opinion evidence, the Supreme Court held that to permit such testimony at the trial would be to enable the insurer to do indirectly that which it cannot do directly. Seelbach held that the carrier could not show the curative or beneficial effects of surgery because it did not comply with the procedure prescribed by the Act. The Act does not require the employee to seek the permission of the Board before undergoing surgery where he is not seeking to require the carrier to pay the expense of such treatment. There is no reason to apply Seelbach in this case. As the court pointed out, it is logical and reasonable to say that evidence of the probable effect of an operation should be no more excluded than the probable effect of the administration of drugs or of physiotherapy. Here it is not so much the effect of the operation that we are concerned with, but rather the need for an operation. The provisions of the Act liberally and fairly interpreted do not require the court to exclude from consideration of the jury medical opinion of the need for an operation, under the facts of this case, either expressly or by necessary implication.

The injury by reason of which compensation was sought was sustained February 1, 1956. Appellee received treatment and, after some days, returned to work. He timely filed a claim for compensation with the Industrial Accident Board, but requested that it not be acted upon. He continued to work with comparatively little lost time until July, 1961. About that time he became unable to work and was eventually discharged. In August, 1962, he requested the Board to make an award. Appellee testified at the trial that he worked from necessity in order to support his family. He testified that he told his foreman that his back was bothering him, but that he did not report that he was disabled because he was afraid he would lose his job and that for that reason, as much as he could, he concealed from his employer the true nature of his back condition. It was his testimony that after he requested the Board to withhold action on his claim he did not notify the Insurance Company that he was disabled.

On the basis of this and similar testimony appellant requested issues submitting defenses of estoppel, election of remedies, and unjust enrichment. The trial court refused to submit the issues and this action is assigned as error. Counsel for appellant candidly states that he has found no case discussing the applicability of equitable defenses to a claim for compensation under the Workmen’s Compensation Act. We think it unnecessary to pass on the abstract proposition, since it appears that the issues requested are not raised by the evidence in this case.

While appellee stated that he tried to conceal his disability from his employer and that he could not have done the work without help from his fellow employees, such testimony does not raise the issue of estoppel insofar as the insurer is concerned. There is no showing of a change in position on the part of the insurer as a result of its reliance on any conduct of or statements made to it by the claimant. 22 Tex.Jur.2d, Estoppel, § 4. It has been held that estoppel is never employed as a means of inflicting punishment for unlawful or wrongful act. Worsham Buick Co. v. Isaacs, 121 Tex. 587, 51 S.W.2d 277, 86 A.L.R. 232.

The claimant never withdrew his claim for compensation, or promised that he would do so. So long as the claim was pending the insurer knew that the claimant might assert that he had suffered a loss of earning capacity in spite of the fact that he continued to work and collect his pay. In Consolidated Casualty Insurance Co. v. Smith, 309 S.W.2d 80, this Court cited cases where the employee continued to work at the same, or increased wages and yet was found to have sustained a loss in earning capacity. If there was unjust enrichment it would appear that the cause of action, if any exists, would lie in favor of the employer to recover wages which were not earned, rather than in favor of the insurer to defeat a claim for compensation which, under the facts as found by the jury and law as applied by the trial court, it justly owed the claimant. This contention appears to be the same in principle as the contention that the carrier is entitled to an offset, against compensation due, for wages and sick benefits paid during the period of claimed disability. These contentions have been rejected. City of Austin v. Clendennen, Tex.Civ.App., 323 S.W.2d 158, ref., n. r. e.; Texas Indemnity Ins. Co. v. Arant, Tex.Civ.App., 171 S.W.2d 915, ref., want merit.

The Smith and Clendennen cases cited above are illustrative of many cases demonstrating that demanding wages for work done is not inconsistent with the assertion of a claim for compensation for lost earning capacity. There is no merit in the election of remedies defense. The claimant here has not “chosen between two or more inconsistent but co-existing modes of procedure and relief allowed by law on the same state of facts.” 21 Tex.Jur.2d, Election of Remedies, § 1.

The trial of this case was concluded long after the 300 week period, for which compensation was recovered, had ended. During that period of time the claim was dormant in the files of the Board by reason of the claimant’s request that no action be taken on it. The judgment of the trial court awarded compensation at the rate of $25.00 per week with interest thereon at the rate of 4% compounded annually for 300 weeks. Appellant complains that the award of interest was error since by claimant’s affirmative action authorized by the Compensation Act, appellant was prevented from securing a determination of its liability prior to August, 1962.

The Act contemplates voluntary assumption and performance by the carrier of its obligation to pay compensation to injured workmen covered by its policies. Booth v. Texas Employers’ Ins. Ass’n, 132 Tex. 237, 123 S.W.2d 322. It also provides that where a claimant recovers for past due weekly installments, he shall recover interest on such installments at the rate of 4% compounded annually. In view of this provision of the Act we cannot say that the court erred in its award of interest.

Appellant contends that the answers of the jury, to Issues 8, 9, 10 and 12, that the accident of February 1, 1956, was a producing cause of 55% permanent partial incapacity beginning February 3, 1956, were supported by no evidence. This contention is based upon the fact that for more than 401 weeks after the date of injury appellee continued to work for the same employer at the same or greater wages. Appellant contends that the fact that there is no speculation about the future involved in this case differentiates it from the many decided cases where the employee continued to work following an injury. Whether or not appellee could have secured and retained employment elsewhere, the fact is that he did work and receive pay during the 401 weeks following his injury, in excess of his “average weekly wage” prior to injury.

There is evidence, however, that ap-pellee suffered a fall causing immediate pain in his back, which became more severe until he was carried by his employer to a doctor some eight days later. He was treated for two weeks by conservative methods and then returned to work. He was still having pain in his back and legs, and was not actually able to do the work. He was able to keep his job because his fellow employees helped him with the hard jobs. His attempts to work increased the pain. He could not support his family on $25.00 per week. In September, 1962, his doctor recommended a back operation. In February, 1963 he stopped working and was fired when he would not return to work. He has since attempted to work, but was fired from one job after two weeks, and from another after one and a half days. He applied for another job and was rejected because of his back. He testified that he was not able to crawl around under cars, lift substantial weights, nor freely bend his back forward, backward or sideways, and that being on his feet, or even sitting for extended periods of time, caused his back to ache. His testimony concerning his ability to work during the 401 week period is corroborated by the testimony of two of his fellow employees and by his wife. Three doctors testified that he had an injury causing disability — that they would not pass him for heavy work. The testimony of Dr. Price is to some extent corroborative of appellee’s testimony that he suffered disability from the date of the injury.

Unless, therefore, we can say that as a matter of law a man actually working during the entire compensable period after an injury for the same employer at the same or a higher wage cannot recover for general disability under the Act, the answers made by the jury to the questioned issues are fully supported by the evidence.

This case was tried under the statute as it read prior to the 1957 Amendment. It was submitted to the jury for a finding of percentage of disability. Since actual wages is not the same as capacity to earn wages under the Act, the fact that appellee did hold his job and did receive pay in excess of that received prior to his disability is not conclusive on the question, but is evidenti-ary only. Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991; Texas Employers Ins. Ass’n v. Frankum, 145 Tex. 658, 201 S.W.2d 800; Employers Reinsurance Corporation v. Holland, 162 Tex. 394, 347 S.W.2d 605; Indemnity Insurance Co. of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830.

The evidence supports the jury’s finding that appellee’s physical condition was such that he was only able to perform part of the usual task of a workman by reason of which he suffered a reduction of his earning capacity. Many cases could be cited where at least during part of the compen-sable period the claimant worked and received wages equal to or greater than his earnings prior to the injury. In these cases recovery was allowed for the entire period. Consolidated Casualty Ins. Co. v. Smith, supra.

Appellant contends that there was no evidence to support the answer made by the jury to Special Issue No. 13, or that, in the alternative, the answer is contrary to the great weight and preponderance of the evidence. The jury found that the 1956 injury produced permanent partial incapacity to the extent of 55%. Special Issue No. 13 asked:

“Do you find from a preponderance of the evidence that none of the incapacity, if any, that you have found in the preceding Special Issues was produced by the Plaintiff’s prior injury of February 23, 1953?
“Answer: ‘None of the incapacity that we have found was produced by the prior injury of February 23, 1953’ or
‘Some of the incapacity that we have found was produced by the prior injury of February 23, 1953.’ ”

Even though the jury might have believed from the testimony that appellee continued to suffer some disability as a result of the 1953 injury, this would not be inconsistent with their finding that the 1953 injury was not the producing cause of any of the 55% permanent partial incapacity produced by the injury in question. There was ample evidence in the record from which the jury might have concluded that appellee was totally disabled under the charge given them by the court. Their finding that he sustained a 55% partial disability may well have resulted from their conscientious effort to segregate the effects of prior and subsequent injuries- from the effect of the injury of 1956.

.Appellant also attacks the answer of the jury to Special Issue 17 finding that appellee’s incapacity since November 22, 1956, was not caused solely by subsequent injuries, diseases or bodily conditions entirely unconnected with the accident made the basis of the suit. It was established at the trial that appellee had suffered other injuries and illnesses subsequent to the accident made the basis of the suit, some of which required hospitalization. While evidence might require a holding that a subsequent injury or disease did in fact produce total incapacity for a period, such total incapacity will not have the effect of superseding a pre-existing and continuing partial incapacity. There is evidence that appellee’s back condition resulting from the injury in question, and the consequent pain and disability, continued during the entire period to the date of trial. That his disability might have been increased by subsequent events does not render the disability actually suffered solely as a result of the accident in question noncompensable.

The judgment of the trial court is affirmed.


author: PARKER, Justice.

text:
    ORANGE INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. WEST ORANGE INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 6766.
    Court of Civil Appeals of Texas. Beaumont.
    April 15, 1965.
    Rehearings Denied May 12, 1965.
    J. C. Hinsley, Austin, Stephenson, Stephenson & Thompson, Orange, for appellants.
    Keith, Mehaffy & Weber, Beaumont, John O. Young, Orange, for appellees.
   PARKER, Justice.

Plaintiffs and cross-defendants below, hereafter called appellants, filed this suit in the district court of Orange County, Texas, against defendants and cross-plaintiffs below, hereafter called appellees, seeking a declaratory judgment to determine a declaration of the rights, status and legal relations of the parties hereto and a construction of the applicable statutes having to do with the future possible consolidation of Orange Independent School District, if dissolved and made a common school district, by certain procedure, which has not occurred, and certain acts to be performed, which have not been performed, with West Orange Independent School District. Ap-pellees resisted the suit upon the grounds that such procedure would be arbitrary, unreasonable, illegal, capricious and void, and also sought a declaratory judgment in line with such contentions. The jury verdict was returned in favor of appellees upon which judgment was entered.

The first thing this court must determine is whether or not there is any justiciable controversy. The parties were fixed by the pleadings in the trial court as follows:

A. Designation of parties-plaintiff:
1. Orange Independent School District, an independent school district incorporated for school purposes only, organized and existing under and by virtue of the laws of the State of Texas, situated entirely in Orange County, Texas.
2. The individuals composing the Board of Trustees of Orange Independent School District.
3. The Orange County School Trustees of • Orange County, Texas, a body corporate having its domicile in Orange County, Texas.
4. Certain qualified taxpayers and qualified voters residing in Orange Independent School District, as representatives of a class.
B. Designation of parties-defendant:
1. West Orange Independent School District, an independent school district incorporated for school purposes only, duly organized and existing under and by virtue of the laws of the State of Texas, situated wholly within Orange County, Texas.
2. The individuals composing the Board of Trustees of West Orange Independent School District.
3. Certain individuals who were taxpayers and qualified voters residing in West Orange Independent School District, as representatives of a class.
C. Designation of cross-plaintiffs:
1. West Orange Independent School District.
2. The trustees of West Orange Independent School District, as.such trustees and as taxpayers and qualified voters.
3. Certain other qualified voters and real property owners residing in West Orange Independent School District.
D. Designation of cross-defendants:
1. Said Orange Independent School District.
2. The individuals composing the Board of Trustees of Orange Independent School District.
3. The persons composing the County Board of School Trustees of Orange County, Texas, and J. B. Peddy, the duly elected, qualified and acting County School Superintendent of Orange County, Texas, an ex-officio secretary of the Orange Independent School District of Orange County, Texas. Said individuals in this paragraph were sued not only in their official capacity as trustees and superintendent, respectively, but individually.

Under the provisions of Art. 2524 — 1, Vernon’s Ann.Civ.St., (Acts 1943, 48th Leg., p. 265, ch. 164) appellants sought a declaratory judgment, both affirmative and negative in form, setting out and declaring the rights of the parties hereto under the facts in such petition alleged and for other ancillary relief. In the petition it was alleged that there was great disparity in the educational opportunities being afforded the school children in the various school districts in Orange County, resulting in the organization of an Orange County school study committee composed of representatives from the County School Board of Trustees, the county school superintendent and representatives of each of the school districts in Orange County, and representatives from many of the larger industrial taxpayers in Orange County. As a result of the study of such research organization, it concluded that in order to secure equalized educational opportunities for the children in Orange County and to secure the greatest value for the money being expended to obtain educational opportunities in Orange County, it would he necessary to combine many of the school districts then existing in Orange County and decrease the number of administrative organizations dealing with education in such county.

Prior to the filing of this suit, voters in the West Orange Independent School District voted against the proposal to consolidate that district with Orange Independent School District. Petitioners further alleged :

“VIII.
“As a result of the studies which had been undertaken in Orange County, as outlined above, and as a result of its deliberations in connection therewith, Plaintiff, The County School Trustees of Orange County, State of Texas, reached a conclusion that it would be to the best interest of the school system of Orange County if a county-wide school district or county unit system of schools could be organized, and that it would be willing to exercise its powers and authority to that end, but, recognizing that its powers and authority to accomplish such end was limited, such Plaintiff County School Trustees of Orange County, State of Texas, on May 2, 1961, enacted a resolution setting out its policy in that respect and indicating its willingness to cooperate in the creation of a countywide school system by the exercise of its powers to annex common school districts to independent school districts under the statutory provisions then existing. This resolution is attached hereto and set out verbatim in Exhibit ‘A’, which is specifically made a part of the allegation of this petition as though same were copied verbatim at this point”
Such Exhibit “A” is as follows:
"RESOLUTION
“WHEREAS, the aim of the County School Board is to provide for the children of Orange County, regardless of residence, the best educational opportunities possible and,
“WHEREAS, to this end the said County School Board has been advised by the Orange County School Study Committee and the Texas Research League that this can best be accomplished through a county-wide consolidation or unit system and,
“WHEREAS, under present laws consolidation in Orange County can come about only as a result of a majority of the voters in each school district voting in favor of such consolidation and,
“WHEREAS, there is a natural unwillingness for a ‘have’ school district to share its wealth with a ‘have-not’ school district and,
“WHEREAS, the power of the County School Board under present laws as concerns Orange County Schools extends only to Common School Districts, and,
“WHEREAS, the only apparent hope at this time for county-wide consolidation lies in the willingness of the voters in each of the other seven independent districts to vote themselves into a common school district status in order that the districts might then be attached to the ‘have’ independent school district by County School Board action, and,
“WHEREAS, a common boundary must exist between the independent and the common districts at the time of said proposed attachment, and,
“WHEREAS, the most orderly progression of such proposed attachments to insure this contiguity would appear to be generally from an east to west direction in the county.
“NOW therefore be it resolved that the Orange County School Board as now constituted does hereby pledge itself to act immediately through its power of attachment of common school districts to expedite the realization of the county unit system if the voters of the individual districts so signify by their conversion from an independent status to a common status for attachment purposes, and we further pledge to attach Bancroft Common School District, if existing, when it becomes evident that the unit system via the conversion route is accepted by other districts.”

Continuing with the pleadings of Orange Independent School District, it alleged:

“IX.
“Being advised of the resolution enacted by the County School Trustees of Orange County, State of Texas, as set out in Exhibit ‘A’ and having discovered from the consolidation election defeated in the West Orange Independent School District in December, 1961, that the county-wide school system could not be organized in Orange County on the basis of voluntary consolidations of independent school districts under the provisions of Article 2806, and desiring to further the progress of the educational system in Orange County toward the equalization of opportunities for education of all scholastics, Plaintiff Trustees of Orange Independent School District sought advice from legal counsel to determine whether there might be some method provided by the statutes of the State of Texas whereby the ultimate aim might be accomplished. These Plaintiffs were advised that under the provisions of Article 2767, V.T.C.S., as amended in 1955, by election the voters of the Orange Independent School District could accomplish the dissolution of the Orange Independent School District as a corporate body, that upon such action by the voters of the Orange Independent School District the territory at that time in the Orange Independent School District would cease to be an independent school district and would become unorganized territory, and that it would be subject to disposition by the County School Trustees of Orange County, State of Texas, which could then organize a common school district out of such territory and under the authority conferred by the provisions of Article 2922a, V.T.C.S., as amended, annex such common school district to an adjoining or contiguous independent school district, including the West Orange Independent School District.
“X.
“Believing that the procedures described in the preceding paragraph should be undertaken in the interest of embarking upon the creation of a county-wide educational system in Orange County, Plaintiffs Orange Independent School District and the Trustees thereof, together with numerous taxpaying qualified voters residing in the Orange Independent School District, on or about April 30, 1963, started the circulation of Petitions calling for an election to abolish Orange Independent School District under the provisions of Article 2767, Revised Civil Statutes of Texas, 1925, as amended, to be held on May 25, 1963, in the Orange Independent School District. By May 9, 1963, the signatures of qualified voters residing in Orange Independent School District on such petition were approaching the number needed to insure the calling of such election for May 25, 1963.
“XI.
“On May 9, 1963, Defendants West Orange Independent School District and the Board of Trustees thereof, together with others, filed their Original Petition in the District Court of Orange County, Texas, for the 128th Judicial District of Texas, in Cause No. 14,087 on the docket of said Court, styled West Orange Independent School District, et al. vs. The Orange County School Board, et al., said petition consisting of 38 pages in which, among others and additional allegations, were included many of the allegations heretofore included in this petition, including allegations that petitions were being circulated in the Orange Independent School District for the purpose of securing an election on May 25, 1963, to determine whether the Orange Independent School District should be abolished, in which petition the said Plaintiffs alleged that it was the purpose of the Orange Independent School District, its trustees, residents and taxpayers, and the County School Trustees of Orange County, State of Texas, to abolish the Orange Independent School District and then have it annexed to the West Orange Independent School District under the provisions of Article 2922a, V.T.C.S. The Plaintiffs in said Cause No. 14,087 asked for adjudication under the Declaratory Judgments Act that such proceedings as were contemplated by the Orange Independent School District, its Trustees and taxpayers, and the County School Trustees of Orange County, State of Texas, would be invalid, illegal, and void, and also sought adjudication that the procedures contemplated for such election itself would be invalid, and for other relief therein specified. At such time the Plaintiffs in said Cause No. 14,087 also issued notices of intention to take the depositions of 23 witnesses on May 20 and 21, 1963, in connection with such suit. While the Defendants in that cause, substantially the Plaintiffs here, were employing counsel, and otherwise making preparations to answer the petition in said cuase and to be represented at the taking of such depositions, and after the time within which the petitions for the calling of the election for the abolition of the Orange Independent School District on May 25, 1963, had expired without such petitions being presented to the County Judge, the Plaintiffs in said Cause No. 14,087, without notice to the Defendants in said cause of any intention to seek the approval of the Court to dismiss their suit under the provisions of Paragraph (b) of Rule 42, Texas Rules of Civil Procedure, dismissed said Cause No. 14,087, which they alleged was ‘brought in the nature of a class suit by the individual Plaintiffs in one class and the individual Defendants in another class under the provisions of Rule 42, TR CP,’ said suit being dismissed notwithstanding the prohibition in said Rule 42 that no such action should be dismissed or compromised without the approval of the Court. At such time the trial court had been informed that the attorneys whose names are signed to this petition would be representing the Defendants in that cause.
“XII.
“Plaintiff Orange Independent School District is an independent school district with more than 250 scholastics. Its territory is situated wholly in Orange County, Texas. Defendant West Orange Independent School District is an independent school district with more than 250 scholastics. Its territory is situated wholly in Orange County, Texas. The two districts are contiguous to each other, in that their territory could be included in a common boundary line.
“XIII.
“It is the intention of the Plaintiffs herein in the near future to circulate petitions similar to those being circulated in early May, 1963, to secure an election for the abolition of Orange Independent School District, in order that its territory may be organized into a common school district by the County School Trustees of Orange County, State of Texas, and that such common school district may be annexed to the West Orange Independent School District by said County School Trustees of Orange County, State of Texas, under the provisions of Article 2922a, V.T.C.S., as amended. In such event the Defendants herein will again institute litigation such as that which was instituted as Cause No. 14,087 in the 128th District Court of Orange County, Texas, mentioned in the preceding paragraph of this petition, for the purpose of interfering with the conduct of such election as well as questioning the validity of such proposed actions. For such reasons, the Plaintiffs herein have instituted this suit seeking a declaration as to the rights, status and other legal relations of the parties hereto and to secure an adjudication of this court as to the rights of the Plaintiffs and the Defendants under the statutes heretofore mentioned, as well as other pertinent statutes, and to secure such injunctive relief as may be necessary for the enforcement of the declarations of this court as to the rights, status, and legal relations of the parties involved.
“XIV.
“Wherefore, premises considered, Plaintiffs pray that the Defendants be cited to appear and answer herein, and that upon trial hereof, Plaintiffs have the following relief:
“(1) A declaration of the rights, status, and legal relations of the parties hereto and a construction of the applicable statutes as follows:
“(a) That the Orange Independent School District may be dissolved under the provisions of Article 2767, Vernon’s Texas Civil Statutes, as amended, upon a majority vote of those voting at an election called in the manner provided by such Article, and that the election for such dissolution may be called under the provisions of Article 2767 at any time which will permit the County Judge to give 10 full days notice thereof as required by such Article, notwithstanding the provisions of Articles 5.05 and 5.06 of the Election Code of Texas;
“(b) That in the event an election is held under the provisions of Article 2767, V.T.C.S., and a majority affirmative vote is in favor of the dissolution of Orange Independent School District, the territory now included in said Orange Independent School District will become unorganized territory which the County School Trustees of Orange County, State of Texas, are authorized and empowered to organize into a common school district;
“(c) That in the event the Orange Independent School District should be dissolved by election under Article 2767, V.T.C.S., and the territory now included in such district should be organized as a common school district by the County School Trustees of Orange County, State of Texas, as mentioned in the sub-paragraphs (a) and (b), above, the County School Trustees of Orange County, State of Texas are empowered and authorized under Article 2922a, V.T.C.S., as amended, to annex such territory so organized into a common school district to the West Orange Independent School District by order of the County School Trustees of Orange County, State of Texas, without notice, hearing, or election, or further proceedings except the order of the County School Trustees or Orange County, State of Texas;
“(d) That under the circumstances heretofore alleged in this petition such action by the County School Trustees of Orange County, State of Texas, would not be arbitrary, fraudulent nor an abuse of discretion, nor in any manner illegal or void, but that such action by the County School Trustees of Orange County, State of Texas, if taken, would be a valid exercise of the power and authority vested in that body;
“(2) That all of the defendants in this Cause, including their officers, agents and employees, and all residents, taxpayers, and qualified voters residing within the boundaries of the said West Orange Independent School District, be permanently enjoined from instituting or conducting any suits or litigation whatever in any court whatever questioning or attacking the validity of or seeking to interfere with the actions mentioned in the preceding paragraphs of this petition involving the abolition of the Orange Independent School District by election, the organization of its territory into a common school district by the County School Trustees of Orange County, or the annexation of such a common school district to the West Orange Independent School District by the County School Trustees of Orange County, State of Texas, save and except by appeal from the orders of the Court herein; and
“(3) That Plaintiffs herein have all further relief to which they may be entitled at law or in equity, including all costs of Court in this behalf incurred.”

Appellees in its answers contended that such procedure was illegal, arbitrary, unreasonable, capricious and void, alleging numerous facts in support thereof and, likewise, by way of cross-action upon the same acts that might be performed in the future, sought a declaratory judgment. In the evidence it is undisputed that in each district, and particularly in the Orange Independent School District, substantial changes have been occurring, and probably will occur in the future, as to taxation and the number of scholastics.

Whatever existing rights that may be possessed by Orange Independent School District to dissolve itself as an independent school district have not yet been acted on by it in the exercise of such powers it possesses. The basis for any action by Orange Independent School District in this matter has not been laid. Likewise, the County School Board of Orange County and its Superintendent have had nothing to act on by way of an order classifying a dissolved Orange Independent School District into a common school district followed by a contemplated order consolidating the common school district that now does not exist with West Orange Independent School District under any statutory power it has. Until the proper steps have been taken and such rights have been so determined, any opinion we might now render would be advisory only.

Since no statutes in question have been made use of by any party hereto it cannot be said that their “rights, status or other legal relations are affected by a Statute” under Section 2 of the Uniform Declaratory Judgments Act which plainly states that any question of construction or validity thereof is to declare rights, status or other legal relations arising under such Statutes. The record shows no rights, status or other legal relations possessed or claimed by any party arising under such Statutes. Nothing has been done under such Statutes.

Does the desire of Orange Independent School District to pursue its plan to consolidate with West Orange Independent School District present a justiciable controversy simply because West Orange Independent School District plainly fails to see the desirability of such proposed consolidation? Lack of agreement is present. That does not make a justiciable controversy. It is obvious that the Orange County Board of School Trustees and the County School Superintendent proceeded to assemble evidence and make findings of fact in order to establish a precedent for hypothetic future situations in spite of the fact that the Board and Superintendent had no authority to enter any order of consolidation, upon existing facts.

Chief Justice Hughes’ opinion in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, on p. 472, 80 L.Ed. 688, on p. 698 and 699 is applicable to the pronouncements, policies, motives, desires and program of Orange Independent School District, its trustees, the Orange County Board of School Trustees and the Superintendent of Schools of Orange County. We quote from such opinion:

“We agree with the Circuit Court of Appeals that the question to be determined is limited to the validity of the contract of January 4, 1934. The pronouncements, policies, and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the persons complaining. The judicial power does not extend to the determination of abstract questions. Muskrat v. United States, 219 U.S. 346, 361, 31 S.Ct. 250, 55 L.Ed. [246] 251; Liberty Warehouse Company v. Grannis, 273 U.S. 70, 74, 47 S.Ct. 282, 71 L.Ed. 541 [544]; Willing v. Chicago Auditorium Ass’n, 277 U.S. 274, 289, 48 S.Ct. 507, 72 L.Ed. 880 [884]; Nashville, Chattanooga & St. Louis R. Co. v. Wallace, 288 U.S. 249, 262, 264, 53 S.Ct. 345, 77 L.Ed. 730 [735, 736] 87 A.L.R. 1191. * * * The Act of June 14, 1934, providing for declaratory judgments, does not to attempt change the essential requisites for the exercise of judicial power. By its terms, it applies to ‘cases of actual controversy,’ a phrase which must be taken to connote a controversy of justiciable nature, thus excluding an advisory decree upon a hypothetical state of facts. See Nashville, Chattanooga & St. Louis R. Co. v. Wallace [288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730, 87 A.L.R. 1191], supra.”

This court cannot add anything to the question before us to the principles stated in California Products, Inc. v. Puretex. Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (March 23, 1960). On p. 781 of 334 S.W.2d, the Supreme Court held:

“ ‘The rule with respect to the necessity for a justiciable controversy may be stated in the vernacular in this wise: The Uniform Declaratory Judgments Act does not license litigants to fish in judicial ponds for legal advice.’ Anderson, Declaratory Judgments, 2d. Ed., Vol. 1, p. 47, quoting from Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404.”

On p. 782, the Court further said:

“On appeal the Supreme Court of Pennsylvania says the crucial question is ‘do the circumstances here disclosed give any jurisdiction to the court below to enter a declaratory judgment ?’ The Court then quotes from the Declaratory Judgments Act which provides that courts. of record ‘within their respective jurisdictions, shall have power to declare rights, status, and other legal relations’ between parties where there is a real matter in controversy. These are the identical provisions in our statute — art. 2524-1, Vernon’s Ann.Civ.St. The Court then says the Declaratory Judgments Act gives the court no power to grant advisory opinions, or to determine matters not essential to the decision of the actual controversy although such questions may in the future require adjudication, or passing upon contingent or certain other situations.”
% sjs ‡
“And the Court further says:
“ * * If such a proceeding (as sought) was to be countenanced, then approval would be given to applications in any like equity case to have a determination as to whether the court’s order should be held ineffective, under stated facts depending on contingent and future events, with resulting confusion, and the decree would lack the finality which is contemplated in law.”

In the instant case, the court is asked to determine the validity and effectiveness of various statutes if in the future certain things are done. The Declaratory Judgments Act does not contemplate declarations upon matters where the interest of the plaintiff is contingent upon the occurrence of numerous future events, as in this case.

Anderson’s Actions for Declaratory Judgment, ch. 2, sec. 17, Vol. 1, p. 67, defines justiciable controversy as follows:

“A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.”

In the same work, ch. 2, sec. 19, Vol. 1, p. 77, states this:

“In other words, if the construction or validity of a statute or ordinance is drawn into question, the courts will not entertain an action based thereon, seeking a determination as to either the construction or validity thereof, where there is no controversy as to the violation of such statute or ordinance. In these circumstances, there is no justiciable controversy.”

Also, the same text, ch. 2, sec. 18, Vol. 1, p. 74:

“A justiciable controversy is not presented with respect to the validity of the statute regulating the establishment of school or college for the teaching of chiropracty and naturopathy since it was not made to appear that the plaintiffs had applied for a license to establish such schools and the same had been denied. The only reason that a declaratory judgment was required it was claimed to be the need for the establishment of such schools in the state, but the court held that this argument fell short of presenting to the court a justiciable issue or controversy to comply with the fundamental requirement of the declaratory judgment statute.
“This is but an application of the elementary, but fundamental rule, that a declaratory judgment proceeding will not lie to have the court determine whether a statute or ordinance is abstractedly valid or invalid.”

Neither appellants nor appellees cite any authoritative decision holding that a declaratory judgment can be had under the pleadings and record in this case. There is not justiciable controversy in this cause, for which reason the trial court lacked jurisdiction. Since the trial court lacked jurisdiction, this court lacks jurisdiction. Constitution of the State of Texas, Art. 5, Section 6, Vernon’s Ann.St.; Art. 1819 and Art. 1822, R.C.S.T. Advisory power is not given to this court by the Legislature. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933). This court is not considering any phase of this lawsuit except jurisdiction.

For the reasons stated, the judgment of the trial court is reversed and this cause is dismissed without prejudice to the rights of the parties hereto.