author: DUNAGAN, Chief Justice.

text:
    R. M. STEPHENS and Robert J. Sabinske, Appellants, v. Alice Faye DUNN et al., Appellees.
    No. 293.
    Court of Civil Appeals of Texas. Tyler.
    July 20, 1967.

      Spruiell, Lowry, Potter, Lasater & Guinn, John H. Minton, Jr., Tyler, for appellants.
    Fields, Fields & Hardee, Robert Fields, Athens, for appellees.
   DUNAGAN, Chief Justice.

This is a venue case arising in the District Court of Henderson County, Texas. The appeal is from an Order Overruling the Pleas of Privilege of appellants, R. M. Stephens and Robert J. Sabinske, each seeking to transfer the case to Dallas County, Texas, the county of his residence. Appellees, Alice Faye Dunn, Joel Ernie Dunn, Patsy Raz and husband, Jerry Raz, and Carolyn Blumenthal and husband, Ernie Blumenthal, controverted the Pleas of Privilege, relying upon Exceptions 9a and 29a, Article 1995, Vernon's Ann.Tex. Rev.Civ.Statutes. The venue hearing was had before the court without a jury. No findings of fact or conclusions of law were requested by any party and none were made.

Appellees, as the surviving widow and heirs at law of the deceased, Earnest Nebraska Dunn, instituted the suit against appellants, seeking to recover exemplary damages for his death, allegedly resulting from “gross negligence” on the part of appellants in Henderson County, Texas, on July 6, 1965. Appellant Robert J. Sabinske, doing business as National Development Company, was then engaged in doing certain dirt and excavation work at the Lake Shore Development on Cedar Creek Lake in Henderson County, and appellant Stephens was superintendent for Sabinske on the job. The deceased, who was likewise an employee of Sabinske, was working with Stephens at the time of the fatal accident, and the suit sought, as against appellants, exemplary damages only for gross negligence.

At the conclusion of the hearing, the court below overruled the Pleas of Privilege, from which ruling this appeal has been timely perfected. The sole question presented is whether the appellees established upon the hearing that the death of Earnest Nebraska Dunn resulted from the “gross negligence” or willful misconduct of Stephens. Appellants assert that, as a matter of law, the evidence fails to show either “gross negligence” or willful misconduct on the part of appellants as alleged by appellees. In view of such assertion, it is necessary to briefly review the evidence adduced by appellees.

It was established that the deceased was a bulldozer operator hired by Stephens, the superintendent for the construction project in which channels fronting lake lots on Cedar Creek Lake in Henderson County, Texas, were being excavated. During the progress of the work, the deceased had in some manner while operating the bulldozer run one of the tracks off and, in attempting to fix the track, a large truck-tractor was used to pull the bulldozer down from the top of an embankment. The truck engine died because of a low battery and thereupon two farm-type tractors were tied by chains to the front end of the truck and were used to pull it a sufficient distance to start the engine. Stephens was operating the truck and another employee of Sabinske’s, by the name of Dyess, was driving one of the tractors. Clyde Hammer, another Sabinske employee, was driving the other tractor and Dunn was assisting. Immediately prior to the accident, the deceased had unhooked the chains from the front of the truck and the tractors and started up the slope of the embankment, carrying the chains. Stephens, after warming up the engine of the truck, commenced backing it along the channel for a short distance and then backed up the slope of the embankment. In some manner — not shown in the evidence — the truck came in contact with Dunn and he was pulled under the rear wheels of the truck. It was shown that before backing the truck, Stephens had observed one workman near his truck and waited until this man had cleared himself before backing, but Stephens did not attempt to determine the exact location of the deceased before backing. There was evidence that Dunn had been on the job for about two weeks and that Stephens did not consider him a satisfactory bulldozer operator. He had earlier on the date of the accident taken the deceased off the bulldozer. There was, however, no evidence of animosity between Stephens and Dunn, and Stephens had not known the deceased until he hired him for this particular job. There was evidence that after the truck struck Dunn, Dyess yelled at Stephens advising him he had struck Dunn, but apparently Stephens did not hear the warning and, in some manner, operated the truck so that it ran over the deceased a second time. Stephens denied that Dyess had yelled a warning to him and testified that he did not know he had struck Dunn until he had gotten out of his truck.

Following the tragedy, Stephens immediately went to Dunn’s assistance and told Dunn, “Ernie, I wouldn’t have had this happen for anything in the world.” Stephens quoted Dunn’s reply as, “I know it, Steve. You couldn’t help it.” Stephens ran to his truck, got water and gave it to Dunn and sent another employee for an ambulance. Dunn died about thirty minutes following the accident. Appellant Stephens further testified that the deceased was a hard worker although he was somewhat inexperienced in operating a bulldozer. He emphatically denied that he knew Dunn was on the slope at the time he commenced the movement of the truck.

The evidence shows, however, that after the ambulance had arrived and removed the deceased and while the remaining workmen were standing there, Stephens, according to a witness, made the statement, “The son-of-a-bitch is better off dead than he would be alive; he would have killed somebody with the equipment.” It is principally upon this statement and the inferences therefrom that the appellees seek to establish gross negligence on the part of appellant Stephens. The latter’s testimony was offered by deposition and it does not appear that he was ever given an opportunity to admit or deny making the statement.

In their pleadings, appellees allege seven acts of negligence against Stephens, as follows: (a) failing to keep a proper lookout; (b) backing the truck at a high and dangerous rate of speed; (c) backing the truck over the deceased; (d) turning the truck into the direction of the deceased; (e) failing to give to the deceased any sound of warning of his approach; (f) failing to properly apply the brakes; and (g) operating the truck in such a manner as to be extremely hazardous.

It is assumed, although no point is made of it upon this appeal, that if the appellees had met their burden of establishing “gross negligence” against appellant Stephens, the same would be imputable to appellant Sa-binske. The view we take of the disposition of this case renders it unnecessary for us to pass upon the question of whether Sabinske was a “necessary party” within the meaning of Exception 29a, Art. 1995 aforesaid.

We recognize that in passing upon the sufficiency of the evidence to support the order of the trial court overruling the Pleas of Privilege, we must disregard all adverse evidence and give credit only to that evidence which is favorable to appellees and that we must indulge every reasonable conclusion that is favorable to the successful parties. Kirby Lumber Corporation v. Treadway, 382 S.W.2d 316 (Tex.Civ.App., Beaumont, 1964, err. dism.) and Skidmore v. Finley, 396 S.W.2d 952 (Tex.Civ.App., Dallas, 1965, no writ).

Upon an appeal from a judgment sustaining or overruling a Plea of Privilege, the power of this court to review fact findings is the same as it is in any other appealed case. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (Tex. Com.App., 1935, holding approved). Where no fact findings are filed, the reviewing court will presume that the trial court resolved all issuable facts in such a way as to support the judgment entered. Martinez v. General Beverage Distributors, 312 S.W.2d 284 (Tex.Civ.App., Waco, 1958, no writ); Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953).

While we recognize the above rules of appellate review, we cannot ignore the clearly established law that the right to be sued in one’s own bailiwick is a valuable one. Speed v. Chas. Lyon Co., 69 S.W.2d 147 (Tex.Civ.App., El Paso, 1934, no writ); Behrens Drug Co. v. Hamilton, 92 Tex. 284, 48 S.W. 5 (1898); Calhoun v. Padgett, 409 S.W.2d 890, 893 (Tex.Civ.App., Tyler, 1966, n. w. h.). In order to deprive a person of this valuable right of trial in the county of his residence, the case filed against him must clearly come within one of the exceptions found in the Venue Statute. City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466 (1943). Exceptions to the Venue Statute are strictly construed in favor of the defendant and must be clearly established before a citizen can be deprived of the right to be sued in the county of his residence. National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021 (1943); Admiral Motor Hotel of Texas, Inc. v. Community Inns, 389 S.W.2d 694 (Tex.Civ. App., Tyler, 1965, no writ). All doubts are resolved in favor of the defendant. Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S.W. 747 (1923); Compton v. Elliott, supra.

Appellees plead a case of “gross negligence” and sought to sustain venue solely on the theory that appellants had been guilty of “gross negligence,” resulting in the death of the decedent. Under Exception 9a of Art. 1995 aforesaid, it was therefore incumbent upon appellees to establish by a preponderance of the evidence that an act or omission amounting to gross negligence had occurred in the county of suit; that such gross negligence was that of the appellants; and that it was a proximate cause of the death of the decedent. Since the character of suit, as alleged, was one of “gross negligence,” appellees had the burden of proving “gross negligence” in order to maintain venue in Henderson County. Compton v. Elliott, supra; Producers Chemical Company v. Stamps, 346 S.W.2d 162 (Tex.Civ.App., Amarillo, 1961, mand. overr.); Magnolia Petroleum Co. v. Heldt, 236 S.W.2d 255 (Tex.Civ.App., Texarkana, 1951, no writ).

In a suit for gross negligence the showing of mere ordinary negligence is not sufficient to establish venue in the county of suit. Appellants must be shown to have been guilty of the type or character of negligence for which the action, as alleged by appellees, would lie. Meredith v. Mc-Clendon, 130 Tex. 527, 111 S.W.2d 1062 (1938); Carey v. Smith, 168 S.W.2d 889 (Tex.Civ.App., Eastland, 1943, no writ); Thompson v. Elder, 263 S.W.2d 321 (Tex.Civ.App., Galveston, 1953, no writ); Process Engineering Company of Fort Worth v. Rosson, 287 S.W.2d 511 (Tex. Civ.App., Galveston, 1956, no writ); and Mims v. Seltzer, 143 S.W.2d 973 (Tex.Civ.App., Beaumont, 1940, err. dism.). The cause of action proved must be the one plead. MacDonald v. Trammell, 351 S.W. 2d 89 (Tex.Civ.App., Austin, 1961, dism., w. o. j., 163 Tex. 352, 356 S.W.2d 143, 1962).

We are of the opinion that appel-lees did not meet their burden of establishing by a preponderance of the evidence that appellant Stephens committed an act of “gross negligence” on the occasion made the basis of the suit and the trial court erroneously overruled appellants’ Pleas of Privilege.

“Gross negligence,” in order to be a ground of recovery of exemplary damages, should be that entire want of care as to raise- the belief that the act or omission of which complaint is made was the result of conscious indifference to the right or welfare of the person or persons to be affected by it. Missouri Pac. Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408 (1888). This rule has been followed consistently in Texas. Texas Pac. Coal & Oil Co. v. Robertson, 125 Tex. 4, 79 S.W.2d 830, 98 A.L.R. 262 (1935); Sheffield Division, Armco Steel Corporation v. Jones, 376 S.W.2d 825 (Tex.Sup., 1964). “Gross negligence” is usually positive or affirmative rather than merely passive or negative. J. S. Abercrombie Co. v. Scott, 267 S.W.2d 206 (Tex.Civ.App., Galveston, 1954, n. r. e.). Mere inattention or indifference is insufficient — there must be a conscious indifference. The importance of this was stressed by Judge Smedley in Texas Pac. Coal & Oil Co. v. Robertson, supra. This court, in Armstrong v. Texas Power & Light Co., 399 S.W.2d 922 (Tex. Civ.App., Tyler, 1966, n. r. e.) in quoting from other authorities, held in part as follows:

“ ‘In order that a recovery of exemplary damages may be sustained, the plaintiff must show, not merely that the defendant could have or ought to have foreseen and prevented the loss or injury of which the plaintiff complains, but that he acted intentionally or wil-fully, or with a degree of “gross negligence” which approximates a fixed purpose to bring about the injury of which the plaintiff complains. The mental factor is also described in the reports by the terms “malice,” “fraud,” “oppression,” “recklessness,” and the like. Regardless of the expression which is used to describe it, the purpose or intention of the defendant is determinative of his liability for exemplary damages.’ ”

Assuming, without deciding, that the evidence in this case is sufficient to establish that Stephens failed to keep a proper lookout for the deceased or that he should have ascertained his whereabouts before. moving the truck, there is evidence that he did exercise some care and we are of the opinion that if his conduct was negligence, it amounted to no more than ordinary negligence, as distinguished from gross negligence. The statement allegedly made by Stephens appears to be an attempt after the accident to excuse his actions rather than show any pre-existing “conscious indifference” to the welfare of Dunn. Appellees argue that there was at least some evidence that Stephens’ conduct amounted to “gross negligence.” We do not find in the record any evidence of probative force establishing the necessary element of conscious indifference on the part of Stephens to the welfare of Dunn. In any event, “gross negligence” was not established by a preponderance of the evidence and the trial court erred in overruling the Pleas of Privilege.

The judgment of the trial court is reversed, and it is ordered that the cause as to both appellants be transferred to a district court of Dallas County, Texas.

      . Appellees were paid fatal benefits under the Texas Workmen’s Compensation Act by the employer’s insurer, and this action was brought under the provisions of Sec. 5, Art. 8306, V.A.T.S. Suits for exemplary damages for wrongful death are authorized also by Art. 16, Sec. 26, V.A.T.Const. and by Art. 4673, V.A.T.S.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice. ■

license: Public Domain

text:
    IDEAL BAKING COMPANY, Appellant, v. Charles BOYD, Appellee.
    No. 300.
    Court of Civil Appeals of Texas. Tyler.
    July 13, 1967.

      Lawrence & Lawrence, Wm. M. Williams, Jr., Tyler, for appellant.
    Eldred Smith, Longview, for appellee.
   DUNAGAN, Chief Justice. ■

This is a suit for debt. Appellee, plaintiff in the court below, filed suit in Gregg County, Texas, for commissions which he alleged to be owing to him by appellant, Ideal Baking Company, a Texas corporation, which he had earned while employed by appellant. Appellant filed its plea of privilege to be sued in Smith County, Texas, alleging it was not a resident of Gregg County, Texas; that its principal office is located in Tyler, Smith County, Texas; and that no exception to exclusive venue in the county of its principal office exists. Appellee duly controverted the plea of privilege by sworn affidavit seeking to sustain venue in Gregg County, Texas, under Art. 1995, Vernon’s Ann.Tex.Civ.St, Subdivision 23. In his controverting plea, appellee stated that the cause of action arose in Gregg County, Texas, and that appellant maintained an agent and representative for service in Gregg County. The trial court, after a hearing thereon, overruled appellant’s plea of privilege and appellant brings this appeal on two points, grouped together, in which it contends that appellee failed to prove, by a preponderance of the evidence, that a cause of action against appellant arose in Gregg County, Texas, and also failed to prove, by a preponderance of the evidence, that appellant had an agent or representative in Gregg County, Texas. These points must be sustained.

The general rule of venue is that a defendant must be sued in the county of his domicile. In order to defeat defendant’s plea of privilege to be sued in the domiciliary county, the burden is on the plaintiff to allege and prove by a preponderance of the evidence that the case comes within one of the exceptions to Art. 1995, V.T.C.S. Compton v. Elliott, 126 Tex. 232, 88 S.W. 2d 91 (Tex.Com.App., 1935, holding approved) ; Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.2d 824 (Tex.Com.App., 1931, holding approved); Johnson v. Dallas Cooperage & Wooden-ware Co., 120 Tex. 27, 34 S.W.2d 845 (Tex. Com.App., 1931, holding approved); Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (Tex.Com.App., 1941, holding approved); Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., 389 S.W.2d 694 (Tex.Civ. App., Tyler, 1965, n.w.h.); Hitchcock v. Pearce, 348 S.W.2d 408 (Tex.Civ.App., Waco, 1961, n.w.h.); Summers v. Skillern & Sons, Inc., 381 S.W.2d 352, 356 (Tex.Civ. App., Waco, 1964, writ dism.).

To maintain his suit against appellant in Gregg County, appellee here relies upon Subdivision 23 of Art. 1995. The pertinent parts of this Subdivision read as follows:

“Suits against a private corporation, * * * may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, * * * has an agency or representative in such county; * * * ”

It is undisputed that appellant is a private corporation. Appellee did not attempt to prove that the appellant’s principal office was situated in Gregg County, and, therefore, he could maintain venue under Subdivision 23 in that county only by proving from a preponderance of the evidence one of the following sets of venue facts:

(1) That appellee had, in fact, a cause of action against appellant and that the cause of action, or a part thereof, arose in Gregg County; or
(2) That appellee, in fact, had a cause of action against appellant; that he resided in Gregg County at the time said cause of action or a part thereof arose, and that appellant had an agent or representative in Gregg County.

We will first determine the question of whether appellee established by a preponderance of the evidence that he did, in fact, have a cause of action against appellant. The only testimony offered relevant to the elements or facts constituting the alleged cause of action was the following testimony from appellee Boyd:

“Q All right. Your action, Mr. Boyd, is brought upon a failure to pay you a commission or your remuneration for your services, is that the nature of your action ?
“A Yes, sir.
“Q And did that cause of action arise while you were employed by Ideal Baking Company in Gregg County?
“A Yes, sir.
“MR. SMITH: I believe that’s all right now.
“MR. LAWRENCE: Your honor, we believe that’s leading and suggestive, it is also a conclusion of law and we do not believe that it is proper and should be before the court and we just object to that testimony being admissible.
“THE COURT: Rephrase your question.
“MR. SMITH: Which question?
“THE COURT: The last part where you asked about the cause of action arising in Gregg County.
“Q Mr. Boyd, your cause of action is based upon commission or remuneration which you allege is due to you for services which you performed while you were stationed out here at the station on 259?
“A That is correct, sir.
“MR. LAWRENCE: We still insist, your honor, that that is improper and—
“THE COURT: I didn’t hear the last one, Mr. Lawrence. For my benefit will you ask him again, Mr. Smith?
“Q This action you’ve brought, Mr. Boyd, is for commission or remuneration you allege is due you by or from Ideal Baking Company during the time you were employed by them ?
“A That’s right, sir.
“Q Is that during the period of time that you were based out here on 259 in Gregg County?
“A Yes, sir. '
“THE COURT: You introduce your Petition and the file papers and all that?
“MR. SMITH: Yes, sir, and the Defendant’s Plea of Privilege and Controverting Affidavit and Petition. We close with that sir.”

The only fact revealed by the above testimony is the nature of the appel-lee’s alleged cause of action. None of the probative facts which give rise to the alleged claim were revealed by the testimony. It is elementary that the “substance” of a cause of action is a necessary venue fact which must be proved by a preponderance of the evidence. Crawford v. Sanger, 160 S.W.2d 115 (Tex.Civ.App., Eastland, 1941, n.w.h.); Educators Mut. Life Ins. Co. of America v. Skinner, 146 S.W.2d 276 (Tex.Civ.App., Beaumont, 1940, n.w.h.). Venue facts must be proved just as the allegations of any plea or in the usual way in which proof is required by the party upon whom the burden of proof rests. Victoria Bank & Trust Co. v. Monteith, supra; Compton v. Elliott, supra. Venue cannot be established by mere implication. Burtis v. Butler Bros., 226 S.W.2d 825 (Tex.Sup., 1950); Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (Tex.Sup., 1948); Reynolds & Huff v. White, 378 S.W.2d 923, 929 (Tex.Civ.App., Tyler, 1964, n.w.h.). We hold that the above testimony does not constitute the necessary proof by a preponderance of the evidence that appellee had a substantive cause of action against appellant.

Appellee says that he sufficiently pleaded venue facts to maintain his suit in Gregg County, Texas, and no exceptions were leveled to such allegations. Therefore, upon the introduction of his original petition, along with his controverting affidavit, he contends that his burden of proof is met when the allegations in his pleadings are considered in connection with the evidence introduced at the venue hearing. There is no question about the sufficiency of appellee’s-plain-tiff’s petition or the controverting affidavit. However, in a venue hearing, neither the plaintiff’s petition nor the controverting affidavit can be considered as evidence of the facts alleged therein. Compton v. Elliott, supra; Sabens v. Smith, 118 S.W. 2d 324, 327 (Tex.Civ.App., Fort Worth, 1938, n.w.h.); Gilley v. Morse, 375 S.W. 2d 569, 570 (Tex.Civ.App., Dallas, 1964, n.w.h.); Wood v. Self, 362 S.W.2d 188, 190, 191 (Tex.Civ.App., Dallas, 1962, n.w. h.); Southern Farm Bureau Casualty Ins. Co. v. Powell, 414 S.W.2d 770, 772 (Tex. Civ.App., Corpus Christi, 1967, n.w.h.) Factual allegations in the petition or controverting affidavit are not evidence of such facts. Plaintiff must produce extrinsic evidence sufficient to establish the allegations in his petition by a preponderance of the evidence. This requirement is supported by considerations of public policy grounded upon the premise that otherwise it would be too easy by mere allegation and statements of conclusions to defeat the defendant’s right to be sued at his domicile. Vol. 1, McDonald’s Texas Civil Practice, Sec. 4.55(b), pp. 612, 613. We hold, therefore, that the allegations contained in the appellee’s original petition are insufficient to supply the above mentioned deficiencies in the proof as to appellee’s substantive cause of action against appellant, and, therefore, he has failed to prove by a preponderance of the evidence that he has any cause of action, or that a part thereof arose, in Gregg County. Cline v. Southwest Wheel & Mfg. Company, 390 S.W.2d 297 (Tex.Civ.App., Amarillo, 1965, n.w.h.).

As mentioned above, appellee could also maintain venue in Gregg County by proving that he resided in said county at the time his alleged cause of action, or a part thereof, arose and that appellant had an agent or representative in said county. What we have previously said concerning the failure of appellee to meet his burden of proving a substantive cause of action against appellant necessarily precludes venue under this final portion of Subdivision 23. It should also be pointed out, however, that appellee offered no testimony that he resided in Gregg County at the time his alleged cause of action or a part thereof arose. Neither did he prove by a preponderance of the evidence that appellant had an agent or representative in Gregg County. In this connection, O. P. Schnyder and appellee, Charles Boyd, were the only two witnesses who testified at the venue hearing. It was shown that Schny-der was sales manager for appellant and maintained his offices in Tyler, Smith County, Texas. It was also shown that appellee Boyd performed services for appellant under Schnyder’s supervision out of the appellant’s place of business in Long-view, Gregg County, Texas, which was a distributing point only. Although appel-lee testified that he was an employee of appellant working as route sales supervisor out of the appellant’s distributing plant in Gregg County, he failed to prove by a preponderance of the evidence that his duties were of such a nature as to make him an “agent or representative” within the meaning of the relevant portion of Subdivision 23. Mere proof that the plaintiff was a servant or employee does not constitute him an “agent or representative” within the terms of Subdivision 23. Texas Power & Light Co. v. Adamson, 203 S.W.2d 275 (Tex.Civ.App., Texarkana, 1947, n.w.h.); Talley v. Shasta Oil Co., 146 S.W.2d 802 (Tex.Civ.App., Texarkana, 1940, n.w.h.).

The burden imposed on the ap-pellee in the instant case is one the courts have predicated upon the belief that the defendant’s right to be sued in the county of his domicile is an invaluable right and this right should be vitiated only when the evidence clearly supports the maintenance of venue in some other county. The right to be sued in one’s own domicile is a right jealously guarded by the courts, and exceptions to the venue statutes must clearly appear. Goodrich v. Superior Oil Co., 237 S.W.2d 969, 972 (Tex.Sup., 1951); Bur-tis v. Butler Bros., supra. Unless the plaintiff clearly discharges his burden of proof, the defendant is entitled to have the cause transferred to the county of his domicile. Calhoun v. Padgett, 409 S.W.2d 890, 893 (Tex.Civ.App., Tyler, 1966, n.w.h.) ; Reynolds & Huff v. White, supra.

Judgment of the trial court is reversed and it is ordered that the cause be transferred to a District Court of Smith County, Texas.


author: McDONALD, Chief Justice.

text:
    Albert H. CALLICOATTE, Appellant, v. Jewell V. CALLICOATTE et al., Appellees.
    No. 4629.
    Court of Civil Appeals of Texas. Waco.
    July 13, 1967.
    Rehearing Denied Aug. 3, 1967.
    Julia Mae Barnhart, Houston, Joe D. Jarrard, Jr., Pasadena, for appellant.
    Bill Hilford, Houston, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff from a take-nothing judgment in a partition suit.

Plaintiff Albert Callicoatte filed suit against defendants Jewell Callicoatte and Laney Beard, Jr., for partition of 3 tracts of land in Harris County, alleging he and Jewell Callicoatte were husband and wife until 1966; that the 3 tracts were community property of himself and Jewell; that tracts A and B were in possession of Jewell, and tract C had been conveyed by Jewell to defendant Beard.

Defendants answered by general denial.

Trial was before the court without a jury which, after hearing, entered judgment that plaintiff take nothing, and vested title to tracts A and B in defendant Jewell Callicoatte, and vested title to tract C in defendant Beard.

The trial court filed Findings of Fact and Conclusions of Law, pertinent of which are summarized as follows:

FINDINGS OF FACT
1) & 2) Plaintiff and defendant Jewell Callicoatte married in 1929; and were still married to each other on May 23, 1955.
3) On May 23, 1955 plaintiff abandoned Jewell.
4) On May 23, 1955 the community estate consisted of a 9 month old Chevrolet which was paid for; mechanic’s tools; 2 lots with improvements (tracts A and B) which were heavily encumbered; $1200. cash; and some community debts.
5) On May 23, 1955 plaintiff and Jewell entered into an oral partition and division of their community estate.
6) By the terms of this oral partition plaintiff received the Chevrolet and the mechanic’s tools, and did not assume any debts of the community estate; Jewell received subject to the debts, tracts A and B; $1200. cash; and she assumed the community debts.
7) Jewell paid off the debt on tracts A and B, as well as all other community debts.
8) A separation immediately followed the oral partition which was permanent.
9), 10), 11) Following the separation plaintiff obtained a divorce from Jewell in Nevada in 1955; and married a woman in California, and lived with her and supported her; and thereafter obtained a divorce from her.
12) After such divorce plaintiff married another woman in California, and lived with her and supported her.
13) Plaintiff, on January 11, 1966, obtained a second divorce from Jewell in Harris County, Texas.
14), 15), 16), 17) From May 23, 1955 to the present, plaintiff paid no money to Jewell as support; and made no claim on Jewell’s earnings or estate.
18) At the time of the oral partition, such partition was fair to each.
19), 20), 21) Tract A has a present market value of $7,000.; tract B, $6,-500.; tract C, $6,300.
22) On behalf of Jewell, her daughter, Merle Beard, subsequent to May 23, 1955, paid the debts against tracts. A and B in amount of $4,504.75.
23), 24) Jewell paid taxes, repairs, and maintenance on tracts A and B, between May 23, 1955 and January 11, 1966 in amount of $18,945. and received rentals from such properties of $12,470.
25) After May 23, 1955 Jewell improved tract B by building a small house thereon for $1500. to $2250.
26), 27), 28), 32) Tract C was purchased by Jewell in 1963 for $5,000.
29) In February, 1965 Jewell deeded tract C to defendant Beard, (her son-in-law).
30) Jewell received $1080. rents from tract C; but paid taxes, repairs and maintenance on such property.
33) Jewell owes defendant Beard and his wife $10,000. for support and assistance from May 23, 1955 to the present.
34) When plaintiff abandoned Jewell on May 23, 1955, she was ill and had no means of support.
35) Plaintiff failed to do equity, failed to account for his income from May 23, 1955 to the present, and did not come into court with clean hands.
CONCLUSIONS OF LAW
1) Plaintiff abandoned Jewell on May 23, 1955.
2) The oral partition between plaintiff and Jewell on that date was effective, legal and binding.
3) Considering the value of the property taken by each party at that time, together with the encumbrances assumed and discharged, the oral partition was fair and equitable.
4) The oral partition was immediately followed by a permanent separation and abandonment, and a Nevada divorce by plaintiff, effectively, and permanently divided the community property as of May 23, 1955; and plaintiff has no interest in the property set aside by such partition to Jewell, or to such property which may have been accumulated by her subsequent to such partition.
5), 6) The partition of the community estate at the separation concluded the accumulation of community property by plaintiff and Jewell.
7) Regardless of whether plaintiff had any right to partition the properties, Jewell expended moneys for taxes, mortgages, repairs and maintenance, subsequent to May 23, 1955 for in excess of the value of such properties, and is entitled to reimbursement of such sums.
8) Plaintiff wholly failed to do equity and came into court with unclean hands and is denied equitable relief.

Plaintiff appeals on 33 points, contending:

1) The trial court erred in vesting title to tracts A and B in defendant Jewell Callicoatte, and in vesting title to tract C in defendant Beard, because such was community property of plaintiff and defendant Jewell Callicoatte, having been acquired during their marriage, and plaintiff was entitled to ½ interest therein.

2) The trial court erred in finding that on May 23, 1955 plaintiff and defendant Jewell Callicoatte entered into an oral partition of their community estate (tracts A and B); and that such oral partition is void. (Plaintiff contends there was no pleading to support such finding; that it is against the weight and preponderance of the evidence; that it violates Articles 1288 and 3995(4) Vernon’s Ann.Tex.Civ. St.; that it is against public policy; that it is too unfair and inequitable to be enforceable; that it is too indefinite to meet the requirements of a valid contract).

3) The trial court erred in holding plaintiff has no interest in tract C, because the partition of the community estate at the separation concluded the accumulation of community property by the parties (which was prior to Jewell Callicoatte’s acquisition of tract C).

Plaintiff and Jewell Callicoate, who had married in 1929, separated on May 23, 1955. Plaintiff went to Nevada and secured a divorce and remarried; in a few years he secured another divorce and remarried again. Plaintiff’s Nevada divorce from Jewell was held void (Callicoatte v. Calli-coatte, Tex.Civ.App. (nre) 324 S.W.2d 81) and plaintiff secured a divorce from Jewell in Harris County on January 11, 1966. At the time plaintiff left Jewell they owned as community property a new car, mechanic’s tools, tracts A and B (encumbered by some $4500); $1200. cash; and owed other community debts. After plaintiff left, Jewell, with the help of her daughter, paid the community debts including the mortgages on tracts A and B, collected the rents off the properties, and paid taxes and maintenance costs on the properties. Plaintiff, during the time from 1955 to 1966, worked, married, lived with and supported two different wives, and while making no account of his earnings or property, seeks a community ½ interest in tracts A and B, as well as tract C, which Jewell acquired in 1963.

Defendant Jewell Callicoatte testified that on the night of May 23, 1955 at about 11:00 o’clock, plaintiff got up out of bed and said he was leaving. She further testified she asked him what he was going to do about the mortgage ($4500. on tracts A and B), and that he said all he wanted was the new car, which was paid for, and his clothes and his tools, and that Jewell could take care of the mortgage if she wanted to; that plaintiff didn’t care anything about those. The record reflects tracts A and B were worth $7,000. and $6500. as of 1966; that Jewell, by hard work and good management, and with the help of her daughter, paid off the mortgage and community debts and the taxes and maintenance costs of the property, and that the property is now clear of debt. The record further reflects that in 1963 Jewell purchased tract C, which she later conveyed to her son-in-law, defendant Beard.

A husband and wife, upon permanent separation, can, by parol, partition their community property between themselves, and such contract is valid and enforceable. Cantrell v. Woods, Tex.Civ. App. (nwh) 150 S.W.2d 838; Rains v. Wheeler, 76 Tex. 390, 13 S.W. 324, pt. 4; Coborn v. Collins, CCA (nwh) 244 S.W. 2d 526.

We think the evidence ample to sustain the trial court’s finding that plaintiff and defendant, on May 23, 1955, entered into an oral partition of their community estate (tracts A and B). Plaintiff complains that defendants have no pleading to support the trial court’s finding and judgment. Defendants filed a general denial which was sufficient. Rule 760 Texas Rules of Civil Procedure provides that in a partition case the court shall determine the interest of each litigant in the real estate sought to be divided, and all questions of law or equity affecting the title to such land which may arise. And in partition cases resort will be made to equity to insure a fair and just partition— and all equities should be considered and adjusted. Grassmeyer v. Beeson, 13 Tex. 524; Burton v. Williams, Tex.Civ.App. (nre) 195 S.W.2d 245; O’Connor v. Delk, Tex.Civ.App. (nwh) 249 S.W.2d 248; Hollyfield v. Rovenger, Tex.Civ.App. (nre) 262 S.W.2d 114.

If tract 3 was community property of plaintiff and Jewell, Jewell, having been abandoned by plaintiff, had a right to convey the property. Keys v. Tarrant Co. B. & L., Tex.Civ.App., 286 S.W. 593; Breit-ling v. Chester, 88 Tex. 586, 32 S.W. 527; 30 Tex.Jur.2d 194 (note 15) ; Cheek v. Bellows, 17 Tex. 613.

All of plaintiff’s points and contentions have been considered and are overruled. The judgment of the trial court is correct.

Affirmed.


author: CLAYTON, Justice.

text:
    J. C. KINLEY, Ind. & d/b/a J. C. Kinley Company, Appellant, v. LUCCOUS SERVICE & EQUIPMENT COMPANY et al., Appellees.
    No. 5791.
    Court of Civil Appeals of Texas. El Paso.
    March 15, 1967 and
    April 26, 1967.
    Rehearings Denied July 26, 1967.
    Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., Midland, for appellant.
    Max E. Ramsey, Kenneth Tekell, Andrews, Lynch, Chappell & Allday, Vann Culp, Bruce Bangert, Midland, for appellees.
   OPINION

CLAYTON, Justice.

One M. M. Kinley was the inventor and holder of patents on and application for patents on certain oil-field tools and equipment. Among these was an instrument known as “sand-line cutters” or “wire line cutters” or “wire line shooting tools”, which will be referred to herein as sand-line cutters, covered by U. S. Patent 2,185,303, issued on January 2, 1940. Other patents were applied for by Kinley Under Application Serial Number 425,536 under date of April 26, 1954, which involved an improvement to Patent 2,185,303, but patent for this improvement was not granted until June 4, 1957 under the number of 2,794,619.

Meanwhile, on January 12, 1956 an agreement was entered into between M. M. Kinley and the Luccous Service & Equipment Company whereby Kinley licensed the Luccous Company to use the tools in Patent No. 2,185,303 and those under Patent Application Serial No. 425,536, but the license did not give the licensee the right to manufacture or sell, or have manufactured or sold the devices or parts thereof covered by the license. The agreement provided: “The terms of this agreement shall continue until the expiration of the last of said patents No. 2,-185,303 or U. S. Patents which may issue under the aforesaid application, Serial No. 425,536 and any patent applications, or patents, on improvements on said patents”, but it was further agreed that the agreement might be canceled upon written notice by either party to the other. There were provisions covering reports, accounting, payment of royalties, return of tools upon cancellation or termination of agreement, etc.

A similar agreement, bearing the same date, covered perforating tools and equipment under other numbered Letters Patent.

The patent on sand-line cutters, No. 2,185,303, expired by operation of law on January 2, 1957.

On January 1, 1960 a transfer was made by the M. M. Kinley Company of some of its assets, including the sand-line cutters and the above agreements, to J. C. Kinley. On April 27, 1961 the Luccous Service & Equipment Company was sold to one J. D. Whiteside.

On November 28, 1961 plaintiff filed his original petition, and on June 22, 1962, his first amended original petition, asking for a temporary restraining order to prevent the Luccous Service & Equipment Company, Luccous, Sr., Luccous, Jr. and Whiteside from destroying, secreting, etc., the books and records relative to the operation of the tools and equipment under the agreements with Kinley; that said restraining order become a temporary injunction and finally a permanent injunction; and also restraining and enjoining defendants from in any manner using tools secured from plaintiff or any tools or equipment made in accordance with tools and equipment secured from plaintiff; for an accounting and judgment in at least the sum of $22,500.00, which plaintiff claims should have been paid to him from the charges collected by defendants for the operation of said tools and equipment.

Meanwhile, on February 21, 1962 Whiteside terminated the agreements of Luccous Service & Equipment Company by written notice to Kinley, as provided in the agreements.

On July 20, 1962, after hearing on temporary injunction, the trial court ordered the writ to issue pending final hearing and determination of the cause, restraining Luccous Sr. and Jr. from using, renting or leasing any sand-line cutter tools either secured from the Kinley Co. or copied and made substantially in accordance with such tools. An appeal was taken from this order, and the Court of Civil Appeals affirmed the trial court, 368 S.W.2d 827, on May 22, 1963. Writ of error was granted and the Supreme Court on March 4, 1964 reversed the Court of Civil Appeals and the trial court, and dissolved the temporary injunction, Luccous v. J. C. Kinley Company, Tex., 376 S.W.2d 336. In its opinion, the Supreme Court held that in the case before it, the defendants, as to the alleged “copied” tools, had not obtained any “marketing advantages” from having prematurely gained information about the sand-line cutters, since de-' fendants received knowledge of the tools some sixteen years after they were patented (in 1940), and used that knowledge after the patent expired (in 1957). As to the alleged “secured” tools, secured from plaintiff under the terms of the licensing agreement, the court held that the plaintiff had failed in his burden of proof to show that Luccous, Jr., was renting, leasing or using tools “secured” from plaintiff, and as to Luccous, Sr., plaintiff himself testified that he had no personal knowledge of any sand-line cutters owned by him which were still in defendants’ possession, while Whiteside testified, as introduced by plaintiff, that he had acquired all of the plaintiff’s tools from defendant and returned them to plaintiff. The court then concluded:

“ * * * The only issue necessary for decision by this court is whether or not the lower courts have erroneously enjoined defendants from using sand-line cutters allegedly ‘copied’ or ‘secured’ from plaintiff and from personally manufacturing such tools now and in the future. It is undisputed by the testimony of the plaintiff himself that the license agreement has been terminated by written agreement since February 21, 1962. This being so, it has no relevancy as to the propriety of the injunction. If defendants have breached the terms of the agreement, plaintiff’s remedy is damages, and not injunction.
“An applicant for a temporary injunction seeks extraordinary equitable relief in that he seeks to immobilize a person from a course of conduct which that person may have a legal right to pursue. See Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517. In the present case, the trial court and Court of Civil Appeals have enjoined defendants on the basis of the well-settled rule that injunctive relief may be employed when one breaches his confidential relationship in order to unfairly use a trade secret. As heretofore noted, the above rule is not presently applicable.”

While this appeal was pending, on March 11, 1963, the Luccous’ and Luccous Service & Equipment Co. filed their motion for summary judgment. The plaintiff did not amend his pleadings or file any new affidavits or deposition in connection therewith, but did file his answer to the motion on May 24, 1965. On the same day, the hearing on said motion was held by the court. At such hearing, plaintiff requested leave of the court to put in evidence the •various instruments referred to in his pleadings. Defendants objected on the grounds that a summary judgment should be determined by the court solely on matters before the court at the time of the commencement of the hearing thereon. This objection was overruled and various instruments were introduced by plaintiff, together with the Statement of Facts taken on the motion for temporary injunction. Leave of the court was then asked to question plaintiff J. C. Kinley regarding Patents 2,185,303 and 2,794,619, and leave was granted, again over defendants’ objection. On the same day, judgment was entered by the court granting the summary judgment to the defendants and severing Kinley’s claims against defendant J. D. Whiteside, as constituting a separate cause of action.

In Richards v. Allen, 402 S.W.2d 158 (Tex.Sup.1966), it was held that:

“ * * * If at the hearing on motion for summary judgment, a party with permission of the court should desire to supplement his deposition or affidavit proof, such supplementary material should be supplied in the form of a deposition or affidavit and not by the examination of witnesses in open court.”

Accordingly, we here hold that the court erred in allowing examination of a witness or witnesses in the summary judgment proceeding herein, but plaintiff brought on this error and accordingly cannot profit from such error. However, we do hold that questions of fact arose from the pleadings and answer to the motion for summary judgment, aside from any evidence that might have been wrongfully adduced at the hearing, which questions of fact would prevent the granting of a summary judgment and which matters could be resolved at a trial on the merits from an accounting and the possible proof of the supply and copying of the tools under Application Serial No. 425,536 and the subsequent Patent No. 2,794,619, which is a separate and distinct patent to the Patent No. 2,185,303 that expired; and such further proceedings might show a breach of the terms of the agreement and consequent damages under the Supreme Court’s decision in the injunction matter, prior to the termination of the agreement on February 21, 1962.

Although reluctant to send this matter back for further proceeding, we feel compelled to give plaintiff that relief from the summary judgment, and accordingly reverse the judgment of the trial court and remand the cause for trial on the question of damages for breach of agreement.

Reversed and remanded.

OPINION ON MOTIONS FOR REHEARING

Opinion on Motions for Rehearing by John C. Luccous, Sr. and John C. Luccous, Jr., and by Luccous Service & Equipment Co.

These motions for rehearing are overruled. In the opinion of this court rendered on the 15th day of March, 1967, this court said:

“However, we do hold that questions of fact arose from the pleadings and answer to the motion for summary judgment, aside from any evidence that might have been wrongfully adduced at the hearing, which questions of fact would prevent the granting of a summary judgment and which matters could be resolved at a trial on the merits from an accounting and the possible proof of the supply and copying of the tools under Application serial No. 425,536 and the subsequent Patent No. 2,794,619, which is a separate and distinct patent to the Patent No. 2,185,303 that expired; and such further proceedings might show a breach of the terms of the agreement and consequent damages under the Supreme Court’s decision [Luccous v. J. C. Kinley Company, 376 S.W.2d 336] in the injunction matter, prior to the termination of the agreements on February 21,1962.”

We remanded the cause for trial on the question of damages for breach of agreement.

All matters relative to injunctive relief alluded to in this motion for rehearing are conclusively settled by the Supreme Court decision, supra, referred to by this court in its opinion, and need no further comment.

The agreement of January 20, 1956, was between M. M. Kinley, predecessor to appellant in ownership of the patents involved, and John C. Luccous, Sr. and John C. Luccous, Jr., as well as Luccous Service & Equipment Company. The appellant’s Answer to Motion for Summary Judgment refers to these agreements and asks for an accounting under them. We believe this matter cannot be resolved by summary judgment, and so hold. We therefore overrule these motions for rehearing.


author: WILSON, Justice.

text:
    Hugo A. TOUCHY et al., Appellants, v. HOUSTON LEGAL FOUNDATION, Appellee.
    No. 4636.
    Court of Civil Appeals of Texas. Waco.
    June 22, 1967.
    Rehearing Denied July 13, 1967.

      Fred W. Robinson, Herbert Finkelstein, Houston, for appellants.
    Leroy Jeffers, Curtiss Brown, Houston, for appellee.
   OPINION

WILSON, Justice.

Appellants are four licensed Texas attorneys and a corporation composed of practicing lawyers. A motion for summary judgment and a plea in abatement were sustained, and judgment was rendered dismissing their action seeking an injunction against the Houston Legal Foundation. The record on which the trial court acted consists of the pleadings, a verified motion, a verified reply and an affidavit.

Houston Legal Foundation, it was alleged, is a charitable corporation which has been designated agent in the Houston and Harris County area for the Federal free legal aid program under the Office of Economic Opportunity. The record reflects its functions as the agency through which persons considered by the Foundation to be indigent may have attorneys made available in civil and criminal matters. It operates also, or serves in connection with a Lawyers Referral Service.

The petition alleged the Foundation was engaged in the corporate practice of law in violation of Art. 320a-l, Sec. 3, Vernon’s Ann.Civ.Stat., “rendering general legal services to all members of the public who, in its estimation, meet certain qualifications”; that it employs lawyers, investigators and a staff for its offices; that it provides legal services, gives legal advice, drafts legal instruments and appears in court; that it advertises its services, “actively soliciting business and stirring up litigation”; that it operates a subsidiary organization known as the Lawyers Referral Service which maintains a list of member attorneys; that applicants whose requests for free legal services are not accepted are referred to the Service; that unless attorneys pay dues to the Foundation as members of the Service they are denied references of applications for legal aid; that the Foundation represents both sides of controversies, resulting in conflicts of interest; that it regularly approaches prisoners without request to advise them of legal rights and offer free representation, whereby “numerous prisoners who could have paid a fee” fail to employ private attorneys.

It was alleged the Foundation “causes private attorneys to be assigned, involuntarily, for a nominal fee”; that the bulk of its legal matters are in the field of domestic relations law, many of which would have been handled by private attorneys, who cannot ethically compete with the Foundation. The prayer was to enjoin the Foundation from engaging in the enumerated activities.

Appellee’s motion for summary judgment and plea in abatement, asserted that it was a charitable society incorporated as a non-profit corporation for the purpose of providing or assisting in the providing of attorneys for the indigent; and under Canon 32 of the Texas Canons of Ethics it is not an “intermediary”, and could not be engaged in unethical or unauthorized practice of law, the only type of activities characterized by the pleadings. It also pleaded that plaintiffs have no standing or justiciable interest because exclusive authority to maintain an action alleging unethical practices is vested exclusively in the State Bar of Texas in accordance with established statutory grievance procedures; and such an action must be directed against individual members of the State Bar of Texas. Other grounds not necessary to relate were pleaded.

The Foundation’s motion for summary judgment also stated it began and continued operation with grants from several private charitable foundations, .from the Federal Government and the United Fund; that it is governed by trustees who are members of the Bar; that twenty-three full-time attorneys in ten offices in the county render legal assistance to indigents, and the attorneys engaged in the Foundation’s civil program provide legal services without charge. Attorneys for appointment in criminal cases are recommended to the courts.

The Lawyer Referral Service, it was alleged, is similar to that in over 200 other communities, whereby attorneys agree to serve clients sent to them by the referral service; that the Service informs people of its existence; that any qualified lawyer who pays a subscription fee is eligible to join the Service; that referrals are made on a rotation basis, the purpose being to bring together people with legal problems and members of the legal profession, as encouraged by the State Bar of Texas and American Bar Association Committees on Lawyer Referral Service; and to improve relations between the Bar and the public. Other details of the system are outlined in appellee’s verified pleading, and an extended statement of principles adopted by the Foundation, including its governmental structure, is attached as an exhibit. Judges and attorneys of Harris County serve as Foundation trustees. The activities of the Foundation are administered by a director who supervises a criminal division, a civil division, and the referral service.

Art. 320a-l, Vernon’s Ann.Civ.Stat., the State Bar Act, provides that all persons licensed to practice law are members of the State Bar, and all persons not members ■“are hereby prohibited from practicing law in this State.”

Canon 32 of the State Bar of Texas Canons of Ethics, as material here, reads:

“Intermediaries. The professional services of a member shall not be controlled or exploited by any lay agency, personal or corporate, which intervenes between client and a member. A member’s responsibilities and qualifications are individual. He shall avoid all relations which direct the performance of his duties by or in the interest of such intermediary. A member’s relation to his client should be personal, and the responsibility shall be direct to the client. Charitable societies rendering aid to the indigent are not deemed such intermediaries”

The Foundation relies on the last sentence of Canon 32, which we have italicized, contending that a corporation can be engaged in the practice of law only as an intermediary; and that by virtue of the italicized sentence of Canon 32, last quoted, the Foundation, as a charitable society rendering aid to the indigent is not, and cannot act as such an intermediary.

Appellants say the quoted exception as to “charitable societies” does not authorize such organizations to represent persons directly, as it is alleged the Foundation does. It avers also that the Foundation “may and has defined the term ‘indigent’ as it sees fit”, and it has in a number of instances represented persons who were not in fact indigent.

The purpose of Canon 32 is to prohibit interference of a lay intermediary in the direct personal relationship between attorney and client. Art. 320a-l, Sec. 3 forbids the practice of law by others than State Bar members, who are licensed attorneys. See Hexter Title & Abstract Co. v. Grievance Committee, etc., 142 Tex. 506, 179 S.W.2d 946,157 A.L.R. 268.

Canon 32 excludes from its proscription charitable societies rendering aid to the indigent. The Foundation can only render legal aid through attorneys. Appellants say it would appear “illogical to designate as an intermediary, a corporation which offers its legal services to the public through salaried employee-lawyers whom it has the power to hire and fire,” and if it is not an “intermediary” it is a corporation engaged in the practice of law. We do not follow the logic of the argument. Since the Foundation, a "charitable society” under Canon 32, may act only in rendering legal aid by attorneys, the matter of whether they are salaried or are subject to discharge would not appear to be determinative of any criterion under that Canon.

That the Foundation is a charitable society, and that it is organized to, and does, render aid to the indigent are not issues under the record; they appear to be undisputed facts. The Foundation is not, therefore, a prohibited lay agency “which intervenes between a client and a member” under Canon 32.

Appellants counter in argument that if this be true Canon 32 must give way to Sec. 3 of Art. 320a-l prohibiting persons not members of the State Bar from practicing law, as otherwise the Supreme Court exceeded its power in adopting the Canon which appellants say is in conflict with the statute.

The Texas State Bar Act enacted in 1939, Acts 46th Leg., p. 64, empowered the Supreme Court to prescribe a Code of Ethics. When adopted as the statute authorizes, the Code of Ethics has the same force and effect as statutes. Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 432. See Hexter Title & Abstract Co. v. Grievance Committee, etc., 142 Tex. 506, 179 S.W.2d 946, 157 A.L.R. 268. The statute and code, therefore, are both subject to the rules of statutory construction, and are to be read together since they deal with the same subject matter. State Bar Rules, Art. XIII, Sec. 2; Calvert v. Fort Worth Nat. Bank, 163 Tex. 405, 356 S.W.2d 918; Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 77 A.L.R. 709.

The quoted sentence of Canon 32 does not contravene Sec. 3 of Art. 320a-l. It is consistent with the statute and is within the statutory delegation of power to prescribe a code “governing the professional conduct of attorneys at law.”

In our opinion, under the undisputed facts established by the record on the motion for summary judgment, the Foundation is not engaged in the unauthorized or unlawful practice of law. See Azzarello v. Legal Aid Society of Cleveland (1962) 117 Ohio App. 471, 185 N.E.2d 566; In Re Opinion of the Justices (1935) 289 Mass. 607, 194 N.E. 313, 317, 318; In Re Miller’s Estate (1936) 5 Cal.2d 588, 55 P.2d 491, 494; American Bar Association, Opinions of the Committee on Professional Ethics and Grievances (1961), No. 303, pp. 18, 21; The Jacksonville Bar Association v. Wilson (Fla.1958), 102 So.2d 292, 295.

The allegations concerning asserted violations of the Canons of Ethics stand upon a different footing. The trial court sustained appellee’s plea in abatement that appellants have no standing or justiciable interest to maintain an action for injunction for these alleged violations. A summary judgment will be affirmed if it is properly sustainable on a ground not actually stated in the motion, if there is no genuine issue of material fact. In re Price’s Estate (Tex.Sup.1964) 375 S.W.2d 900, 903.

Since the Foundation can act only by attorneys in rendering legal services, violation of the Canons of Ethics can only be by attorneys whose conduct the Canons govern. Consequently, the violations alleged must be those of attorneys. The State Bar Rules promulgated by the Supreme Court pursuant to Art. 320a-l provide in Art. XII a system of member discipline under prescribed Grievance Committee procedure. That procedure, in our opinion, is exclusive to the extent that an independent original action alleging unethical practices by an attorney brought in the district court without first exhausting the statutory remedy is not authorized. See State ex rel. Chandler v. Dancer, Tex.Civ.App., (1965) 391 S.W.2d 504, writ ref. n.r.e. The summary judgment of dismissal was proper, therefore, on these grounds.

Affirmed.


author: CLAYTON, Justice. PRESLAR, Justice

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Carolina GARCIA, Appellee.
    No. 5888.
    Court of Civil Appeals of Texas. El Paso.
    May 31, 1967.
    Rehearing Denied July 26, 1967.
    Kemp, Smit, White, Duncan & Hammond, William Duncan, El Paso, for appellant.
    Malcolm McGregor, Gus Rallis, El Paso, for appellee.
   OPINION

CLAYTON, Justice.

This is an appeal from a judgment in the District Court of El Paso County, Texas in a Workmen’s Compensation case.

Plaintiff, appellee here, filed suit in an appeal from the award of the Industrial Accident Board. She testified that she had entered into a common-law marriage which ended with the death of her husband in 1958. She related she had worked for Safeway food stores continuously from 1953 through January of 1961. On January 6, 1961 there was an armed robbery in her store in which she, as a checker, was one of the victims. She was “scared to death”, thought she could see her little boys’ faces, thought she was going to die, could never forget the robber’s eyes and afterwards was very nervous and depressed, would have nightmares and “knew she was sick because I had never felt like that.” Her doctor prescribed tranquilizers which she had taken since then “on and off”. She thought she would become a dope addict, so she started buying whiskey and took “some shots at night”. She stated she had never done that before.

Plaintiff had a gall bladder operation in October of 1961, but this didn’t relieve her nervousness, so her doctor sent her to Dr. Bennett, a psychiatrist, because she was very depressed. Dr. Bennett diagnosed her condition as follows:

“A. Well, she had an intense depression and a good deal of anxiety. She was very suspicious and apprehensive of people. Her attitude bordered almost on psychosis.
Q Doctor, if the evidence had showed prior to January 6, 1961, this was a very happy outgoing person who got along extremely well with her fellow employees and customers, would you characterize what you observed there as a personality change?
A Yes, definitely.
Q Doctor, is this what is sometimes called⅛ neurosis?
A Yes, at the time I saw her I would classify it as a neurosis. Some of the ideas that she entertained — she was extremely anxious and extremely suspicious and one wondered if some of her suspicions weren’t bordering on delusions.
Q When you say ‘delusions’, does that distinguish a neurosis from a psychosis ?
A Yes, there is a break in reality there. They can’t recognize reality from fantasy.”

She saw this doctor from December, 1961 until January of 1962, and then went back to work, taking the tranquilizers, and worked until July 28th of 1964, when she “walked out on the job.” Meanwhile, she had engaged in a fight with a waitress and was cut in the face. Then, just before she left her job, she claimed that the manager of her Safeway store had exposed himself to her in a wash room of the store and she “told him off” and “got out of there mad at him”. She claimed none of the occurrences had happened to her before the holdup. She went back to Dr. Bennett in August of 1964 because her family told her she “was sick and that I had been sick and that I needed medical attention”. The doctor at that time described her condition as: “she was much more paranoid at that time, more than the first time even”, for which he hospitalized her in October, 1964 for shock therapy, where she remained for five weeks. She suffered a swelling of her features, but improved from treatment. In answer to a hypothetical question from her counsel, the doctor testified that the holdup in January, 1961, within reasonable medical certainty, precipitated her intense emotional reaction and that she was then, in May, 1966, suffering from a neurotic condition, some of which was permanent. The doctor was not cross-examined by defendant’s attorney. The doctor further testified:

“Q She was an ill person, Doctor?
A Sick.
Q Did you recommend at that time hospitalization for her?
A Yes, I did.
Q Let me ask you this: Did she.realize and appreciate her illness?
A No, I don’t think so and I don’t think she was too certain about me. I think she was a little suspicious of me at the time.
Q All right, Doctor, when did you next see her?
A The next time I saw her was in 1964 — August 18, 1964.
Q And what was her condition at that time?
A I think it was worse than when I first saw her.
Could you describe it to the jury? a
She was still extremely anxious, she was very depressed. She came in and told me ‘I think too hard. Everybody lies. I lost my job at Safeway’. People didn’t understand her and they were trying to do things. They criticized her and belittled her. She was much more paranoid at that time, more than the first time, even.” <

A witness testified that plaintiff was referred to Vocational Rehabilitation in December of 1964. She was placed in a job training position for six months but only lasted two days. The witness was unable to place plaintiff with a regular employer but plaintiff was taking bookkeeping courses in evening school a month before the trial in May, 1966.

The case was submitted to the jury on special issues. We will discuss principally those attacked on points of error. In Special Issue No. 1 the court, with appropriate definitions, inquired if plaintiff sustained an injury on or about January 6, 1961. The jury answered affirmatively to this issue and to Special Issue No. 2, that plaintiff had sustained some total incapacity following such injury. Then, in answer to Special Issue No. 3, the jury found that the injury inquired about was a producing cause of the total incapacity. This answer is assailed in Point of Error No. 1 on the grounds of “no evidence”, and as being so contrary to the weight and preponderance of the evidence as to be manifestly unjust, and that the court erred in overruling defendant’s objection to the submission of such special issue that “There is no evidence that the ‘injury’ was a producing cause of any total disability.” On the basis of the uncontroverted testimony of the psychiatrist, Dr. Bennett, we overrule these points of error Nos. 1, 2 and 3.

Special Issue No. 14 inquired whether the plaintiff thought that the accidental injury upon which the suit was based (the holdup of January 6, 1961) was a trivial injury. The jury answered in the affirmative. Point of Error No. 4 asserted “no evidence” and No. 5 asserted “contrary to the weight of the evidence” to support this answer of the jury, and No. 6, that the court erred in overruling defendant’s objection to the submission of this issue, that there was no evidence that plaintiff thought her coiidition, as related to the incident of January 6, 1961 was trivial at any time, or at such time as would account for her having this belief up to and including the date of the filing of the claim. At this point it should be stated that the parties hereto stipulated to the court in the absence of the jury, that plaintiff’s claim for compensation under Texas’ Compensation Act was filed with the Industrial Accident Board on April 2, 1962, such claim was passed on by the Board on August 6, 1965 and notice of appeal from this ruling and suit filed by plaintiff on August 20, 1965. Special Issue No. 15 inquired whether the belief of plaintiff mentioned in Special Issue No. 14 constituted “good cause” as defined in Issue No. 15, for plaintiff’s failure to file her claim with the Industrial Accident Board up until the time that the same was filed, to which the jury answered “Yes”.

Appellant takes the position that the jury never was told when the plaintiff’s claim was filed and therefore had nothing upon which to base this affirmative answer. We are cited to Texas Employer’s Ins. Ass’n v. Roberts, 135 Tex. 123, 139 S.W.2d 80 (adopted opinion; 1940) as authority for holding that in the event of such a belief, “good cause” exists only while such belief continues, and Jones v. Texas Employers Ins. Ass’n, 128 Tex. 437, 99 S.W.2d 903 (1937) that the proof must show “good cause” for the full period of the delay. However, reviewing the psychiatrist’s testimony as set out above, as well as other testimony in the record, we find plaintiff to have been suffering from a mental ailment bordering on psychosis during the period of her examination from December, 1961 into January, 1962, which condition was found to he worse in 1964, when she was hospitalized. Under such circumstances, the behavior of plaintiff cannot be judged by the usual standards set for the behavior of a reasonably prudent person. We believe the record in this case to be sufficient to meet the requirements set out in the Roberts case and the Jones case cited to us.

Special Issue No. 18 inquired whether plaintiff was suffering from a mental condition prior to April 2, 1962, to which the jury answered “Yes”, and further, under Special Issue No. 19, that such condition constituted good cause for the plaintiff’s failure to file her claim until the time it was filed. The appellant attacks these findings in Points 16, 17, 18, 19, 20 and 21, as follows: Points 16 and 19, “no evidence” for the answers to Issues Nos. 18 and 19; Points 17 and 20, “contrary to the weight of the evidence” for said answers; Points 18 and 21, error on the part of the court in overruling appellant’s objections to Issues Nos. 18 and 19, reading as follows:

“There is no evidence that Plaintiff (Appellee) labored under any mental condition that would affect her capacity to file a claim with the Industrial Accident Board or handle business related to the same, the testimony being entirely silent on the subject of her capacity or incapacity at the time in question, namely, between the date of the accident or incident and the date of the filing of the claim. There is no evidence that she was incapacitated in such a way by reason of a mental condition that she could not have filed the claim in due time.”
“The question as submitted will be misleading and confusing to the jury for the reason there is no definition of a mental condition that would be an excuse for late filing and the jury will be at liberty to speculate as to whether it means a condition that would incapacitate one from taking care of business or merely a mental condition that would amount to some nervousness or emotional state, the latter not being incapacity that would justify a late filing. There is no testimony of the former.”

Based upon this record, we overrule Points of Error Nos. 16, 17, 18, 19, 20 and 21. In view of this ruling, the jury’s answers to Special Issues Nos. 14 and 15 with regard to “trivial injury”, set out in Points of Error Nos. 4, 5 and 6, and Points 7, 8 and 9, relative to “good cause” because of her belief, may be ignored or treated as surplusage in the verdict. The same may be said of the affirmative answers to Special Issues Nos. 16 and 17, that plaintiff thought that her injuries were the result of a gall bladder condition, and that this constituted “good cause” for the late filing of her claim, similarly attacked in Points of Error Nos. 10, 11, 12, 13, 14 and 15, which Points of Error are likewise overruled.

Having touched on all points of error and finding none under the record in this case, the judgment of the trial court is affirmed. This opinion shall be taken to affirm the judgment as reformed to exclude recovery of $610.00 medical expenses owing to Dr. Bennett as there is no showing or finding that appellant “refused, failed or neglected to furnish ap-pellee medical care”. Liberty Universal Insurance Company v. Gill, 401 S.W.2d 339, 346 (Tex.Civ.App., 1966; ref., n.r.e.):

“We sustain appellant’s seventh, eighth, ninth, tenth and eleventh points of error which relate to alleged error in submitting Special Issue No. 10 inquiring as to the amount of the unpaid bill of Dr. Martin A. Zionts, and in entering judgment for $95.00 on the jury’s answer thereto, since there is no evidence or finding by the jury that appellant refused, failed or neglected to furnish appellee medical care or treatment. * * Such testimony did not constitute any evidence more than a scintilla that appellant refused, failed or neglected to furnish medical treatment. It certainly did not establish such fact as a matter of law. Appellee failed to obtain a jury finding which would entitle him to recover under the provisions of Article 8306, Sec. 7, V.A.T.S.”

Affirmed.

ON MOTION FOR REHEARING.

Rehearing Denied.

DISSENTING OPINION

PRESLAR, Justice

(dissenting).

I respectfully dissent and would grant a rehearing and reverse, and in the interest of justice, remand this case on the issue of good cause for failure to file the plaintiff’s claim within the statutory six-month period. As indicated in the majority opinion, the date on which the claim was filed was stipulated by the parties outside the presence of the jury. The jurors never knew that date, yet were called upon to determine if good cause existed for failure to file up until such date. The period of time in which claims must be filed is no mere technicality, but is the public policy of the State as declared by legislative enactment. It is the established law that good cause for failure to file a claim must be shown to exist up to the time of filing. The existence of good cause up until the claim was filed was a controverted ultimate fact issue. The date of actual filing not being in evidence, the jury could not make a determination of that issue. This was a vital and necessary issue, and I see no way to avoid the deficiency in the evidence — oversight though it may be. It is, however, such a situation as requires another trial rather than rendition, in my opinion.


author: CLAUDE WILLIAMS, Justice.

text:
    Herbert McCORD, Appellant, v. VILBIG CONSTRUCTION COMPANY et al., Appellees.
    No. 16926.
    Court of Civil Appeals of Texas. Dallas.
    June 16, 1967.
    Rehearing Denied July 14, 1967.

      Otto B. Mullinax, of Mullinax, Wells, Mauzy & Levy, Dallas, for appellant.
    Ben Warder, Jr., of Carter, Gallagher, Jones & Magee, Dallas, for appellees.
   CLAUDE WILLIAMS, Justice.

Herbert McCord appeals a take nothing judgment against him in his suit for personal injuries alleged to have been sustained as a result of a collision between two trucks at the intersection of Industrial and Corinth in the City of Dallas. McCord had alleged that he was in the process of making a left hand turn from Industrial into Corinth on the occasion in question when the Vilbig Construction Company truck, driven by its agent, servant and employee, Tom Shipley, carelessly and negligently collided with his vehicle causing him to suffer personal injuries.

The jury, in answer to appropriate special issues submitted, found that both Me-Cord and Shipley failed to keep a proper lookout on the occasion in question but that neither act of omission constituted the proximate cause of the collision. The jury acquitted both parties of any other acts of alleged negligence.

The main thrust of appellant’s attack on the judgment is contained in appellant’s points 3 and 4 wherein he contends (3) that the trial court erred in refusing to grant his motion to set aside and disregard the answer of the jury to Special Issue No. 1-A (in which the jury found that the failure on the part of Shipley to keep a proper lookout was not a proximate cause of the collision in question), and (4) that such answer of the jury was so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. To give proper consideration to these points within the rule announced by our Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), we deem it advisable to briefly recount the material testimony relating to this issue.

Industrial Boulevard extends in a generally north and south direction and dead-ends at Corinth Street which extends in a generally east and west direction. At this intersection there is a traffic light in the center of the street. Industrial Boulevard has several lanes for traffic going either north or south, the same being divided by a median strip. As one proceeds in a southerly direction on Industrial Boulevard and arrives at Corinth Street he is confronted with two separate and distinct left turn lanes, the two being divided by metal “buttons” which extend above the pavement. Appellant McCord was driving what is known as a bobtail truck on the occasion in question. He testified that as he proceeded in a southerly direction on Industrial Boulevard he intended to turn to the left and therefore propelled his truck into the extreme left lane which is adjacent to the median strip. There was a vehicle immediately in front of him. The traffic light on the occasion was red for traffic proceeding south on Industrial so both McCord and the vehicle in front of him came to a stop at the intersection. He testified that the Vilbig truck came up after he had stopped and was in the second left turn lane immediately to his right. He said that he knew'that the Vilbig truck was intending to turn to the left after the light changed. He then related that when the traffic light changed from red to green the vehicle in front of him proceeded into Corinth and that he started his truck forward and to the left. As he was thus proceeding his vehicle was struck on the right front by the Vilbig truck which had entered his lane of traffic before the collision. He said that the rear portion of the Vilbig truck - struck his vehicle and caused the right front fender and right bumper to be bent around, practically breaking them off. Both the bumper and the fender were pulled toward the front of the truck. He did not see any damage done to the Vilbig truck. After the impact the Vilbig truck proceeded forward through the light about 12 feet from his truck which did not move any after the impact.

On cross-examination McCord testified that the front end of the Vilbig truck was out into the intersection as he, McCord, began his left turn and that he was accelerating his vehicle and going about 10 miles per hour at the time of the accident. He described the right front fender and bumper as being “pushed in toward the wheel.”

Appellee Shipley testified that he was driving the Vilbig truck, about 50 feet in length, in a southerly direction on Industrial when he brought the vehicle to a,stop on the outside or right lane from which a left turn was permitted. There were no vehicles in front of him in his lane. There were vehicles to the left of him in the other left turn lane while he was stopped. He remembered seeing the Ford truck which was involved in the accident immediately to his left. The truck he was driving had twenty gears on it. When the light changed to green he started forward, driving in second gear not exceeding three miles an hour when he started to turn. He said that he pulled out ahead of the other truck and that he realized that the other vehicle had a shorter distance to travel to get into Corinth Street than he did. He testified that he was trying to handle his vehicle so that it would not be pulling into the left hand lane of Corinth Street. He said that he was pulling his vehicle to the right and about that time he heard a “click”. He stopped as soon as he heard this click and saw that the other truck had stopped. He got out of his truck and walked back to the other vehicle and found that McCord’s truck was along about the end of his trailer but was not touching it. There was one small mark on the Vilbig truck about as big as a finger which was on the left rear wheel of the trailer. He observed the bumper was broken on the right side of McCord’s truck. At that time he said that practically all of McCord’s truck was in the intersection and that the front end of his vehicle was up to the curb on the right hand side of Corinth. He testified that he did not hit any of the buttons separating the two lanes and positively denied that he had made a. statement that the trailer of his vehicle was over in the lane of traffic occupied by McCord at the time the two vehicles came together.

J. H. Barnett, the police officer who investigated the accident, testified that when he arrived the Vilbig truck had a scrape mark on the left rear side near the rear dual wheels and that from the appearance of the mark on the bobtail truck it was moving more or less southeast to make- the east turn. There was not any debris or glass on the pavement to indicate exactly where the point of impact was. He was not able to say whether or not the bobtail truck was pulled any distance at all as the Vilbig trailér was moving by it. He related that on vehicles such as the Vilbig truck the rear end does not tend to follow the front in making a turn. The rear end of such a vehicle comes closer to the lane to the left than the wheels of the cab of the vehicle.

Appellant argues that there was no evidence of probative force to sustain the jury’s answer to Special Issue 1-A and that, therefore, the trial court should have disregarded such answer and held, as a matter of law, that the failure on the part of Ship-ley to keep a proper lookout was a proximate cause of the collision. In considering appellant’s point of “no evidence” we must view all the testimony in the light most favorable to appellees and indulge every reasonable intendment deducible from the evidence in such party’s favor. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962). Having done so we cannot agree with appellant that the question of proximate cause was one of law that should have been decided in his favor. The testimony, in the main, came from the interested parties to this litigation and was, both direct and circumstantial, conflicting on the issue.

The burden was upon appellant to establish, not only negligence on the part of Shipley, but also that such negligence proximately caused the collision. As Justice Bateman of this court said, in J. C. Penney Co. v. Holmes, 378 S.W.2d 105 (Tex. Civ.App., Dallas 1964), reversed on other grounds, 382 S.W.2d 472 (Tex.Sup. 1964), we have no authority to disregard the negative findings on proximate cause if there was any evidence to support them or if reasonable minds could differ as to the inferences reasonably to be drawn from the testimony. In either event, an issue of fact is raised and the findings of the jury thereon cannot be disturbed by this court. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951).

Our Supreme Court in Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063 (1939), stated that while there may be cases in which a court would be warranted in holding, as a matter of law, an act of negligence to be a proximate cause of an injury, such cases are extremely rare and generally the question of proximate cause is one of fact.

The sine qua non of appellant’s argument is that the accident could not have happened in any other manner than that as contended by him. While it is true that a reading of this testimony from the cold pages of the statement of facts might cause us to believe, had we been sitting on the jury in this case, that we would have rendered a different verdict. This, however, is not the test to be applied, since we are not authorized to substitute our findings of fact for those of the jury. King v. City of Dallas, 374 S.W.2d 707 (Tex.Civ.App., Dallas 1964). The jury in this case, as in every intersection collision case, heard conflicting evidence, both direct and circumstantial, and proceeded to resolve such conflicts by evaluating the credibility of the various witnesses and circumstances presented. Based upon all the evidence they elected to believe Shipley and disbelieve McCord. From the evidence the jury could very well believe the version related by Shipley that his truck did not go over into McCord’s lane but remained in the proper lane at all times while turning to the left on Corinth Street. They could have reasonably found that McCord drove his truck too far into the intersection at the time he began his turn, thereby causing the right front of his vehicle to come into contact with the rear end of the Vilbig trailer. There is conflicting evidence which could have reasonably justified the jury in believing that McCord, while not keeping a proper lookout, pulled too far to the right and scraped the Vilbig trailer. In any event, we cannot say that reasonable minds could not- differ on the question of causation and foreseeability included within the definition of proximate cause. There being evidence of probative force to support the jury’s answer to Special Issue 1-A, the trial court properly overruled appellant’s motion for judgment.

Neither can we say that the record demonstrates such bias or prejudice on the part of the jury as would indicate that they went contrary to all of the evidence in making their findings to Special Issue 1-A. The evidence is not contrary to the great weight and preponderance of the evidence and therefore appellant’s contention is overruled. Williams v. Berry, 389 S.W.2d 89 (Tex.Civ.App., Dallas 1965).

Appellant’s remaining points complain of the action of the trial court in defining the term “new and independent cause” and including this element in the definition of “proximate cause” as given to the jury. Appellant asserts that since there was no evidence of any new or independent cause which could have produced the event complained of, the charge was tainted by the inclusion therein of this element as a part of the issue of proximate cause. Appellant cites us to no authority holding that the improper inclusion of such an element constitutes reversible error. Appellees frankly admit that there was no evidence of new and independent cause in this case and that same should not have been included in the court’s charge. However, they argue, and we agree, that such inclusion is harmless. Rule 434, Vernon’s Texas Rules of Civil Procedure.

The burden was cast upon appellant to demonstrate that the error on the part of the court reasonably and probably caused the rendition of an improper verdict. We hold that appellant has not sustained this burden.

In North Texas Producers Ass’n v. Stringer, 346 S.W.2d 500 (Tex.Civ.App., Fort Worth 1961, writ ref’d n.r.e.), the court pointed out that while a trial court should not incorporate the element of new and independent cause into the definition of proximate cause unless it is in the case and supported with evidence, it would be a rare case indeed where reversible error would flow from an unnecessary inclusion thereof. We agree and overrule appellant’s points.

Having carefully considered all of appellant’s points of error and finding the same not to reflect reversible error they are overruled and the judgment of the trial court is affirmed.

Affirmed.


author: COLEMAN, Justice.

text:
    William Otto MANNING, Appellant, v. SEARS, ROEBUCK & COMPANY et al., Appellees.
    No. 15104.
    Court of Civil Appeals of Texas. Houston.
    June 29, 1967.
    Rehearing Denied Aug. 24, 1967.
    Robert W. Hagen, Charles E. Odom, Houston, for appellant.
    Talbert, Giessel, Barnett & Stone, Henry Giessel, Houston, for appellee Woodrow W. Watson.
    Oldham & Lorance, Tom Lorance, Houston, for appellees Sears, Roebuck & Co.
    Brackeen & Pennington, Troy Stallones, B. L. Brackeen, Houston, for appellee Frank A. Montalbano.
   COLEMAN, Justice.

This is a suit to recover damages for personal injuries resulting from an automobile collision. The trial court entered a judgment for the defendants based on a jury verdict.

Appellant presents two points of error:

(1) “The trial court erred in granting the Appellees a total of eighteen (18) peremptory challenges to the jury panel because such grant was contrary to Rule 233, T.R.C.P. and such grant deprived Appellant of the fundamental right to a fair jury trial guaranteed by the laws and Constitution of the State of Texas and the due process and equal protection clause of the Fourteenth Amendment of the Constitution of the United States.”
(2) “The trial court erred in refusing to submit special issues on wanton acts and omissions on the sole ground that the defense of contributory negligence would defeat recovery, by Appellant, of his damages arising therefrom because wanton conduct is not included in the class of negligent conduct coming within the doctrine of comparative negligence as rejected.”

No motion for new trial was filed in the trial court. Appellant elected to appeal without a statement of facts. The transcript contains a bill of exceptions reflecting that appellant informed the court that each of the named defendants had a public liability insurance policy issued by the Allstate Insurance Company; that the insurance company had employed the lawyers representing each of the defendants; that under the terms of the policies the insurance company had the right to direct and control the defense of the action against each of the defendants, and, therefore, there could be no diversity of interest as between the defendants. The Bill then reflects that appellant objected to the defendants’, collectively, being permitted more than six peremptory challenges to the jury panel; that the trial court denied the objection and allowed each defendant six challenges.

It is appellant’s contention that he has properly preserved his complaint by a formal bill of exception as provided by Rule 372, Texas Rules of Civil Procedure, and that despite the wording of Rule 324, T.R.C.P., it is not necessary to again present the claimed error to the trial court in a motion for new trial.

This point cannot be sustained. Rule 372 merely provides the procedure for taking bills of exception in the trial court which constitute proof of the matters claimed to be error. Nothing in this Rule conflicts with the provisions of Rule 324, T.R.C.P., requiring motions for new trial. Since the matter of which complaint is made in appellant’s first point was not presented to the trial court in a motion for new trial and does not fall in any of the exceptions contained in Rule 324, the merits of the point cannot be considered by this Court. St. Louis Southwestern Railway Company v. Gregory, 387 S.W.2d 27 (Tex.1965).

In connection with his second point appellant argues that since he requested certain special issues by presenting same to the trial judge, who endorsed them “refused” and signed them officially, he has complied with the provisions of Rule 276, T.R.C.P., and each of these requested special issues constitutes a bill of exceptions which can be considered by this Court although no motion for new trial was filed in the trial court.

For the reasons stated in connection with the first point, the second point cannot be considered by this Court. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (Tex.1960).

The judgment of the Trial Court is affirmed.


text:
    Thelma Dell HARTMAN et vir, Appellants, v. MARYLAND CASUALTY COMPANY, Appellee.
    No. 4628.
    Court of Civil Appeals of Texas. Waco.
    June 29, 1967.
    Rehearing Denied July 20, 1967.

      Ralph Balasco, Houston, for appellants.
    Butler, Binion, Rice, Cook & Knapp, James E. Crowther, Houston, for appellee.
   OPINION

WILSON, Justice.

Claimants’ four points in this workmen’s compensation jury case concern admission and exclusion of evidence. She appeals from judgment on the verdict limiting her recovery to seven weeks of total incapacity. Three of these points do not present error, in our opinion, for reasons we note briefly.

Complaint is made of admission of evidence “regarding an unrelated prior claim.” The real complaint, as the point is briefed, is that evidence of the amount paid in settlement of the previous claim was admitted. St. Paul Fire & Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744 is relied on. Although claimant testified she “did not get hurt,” but “got shook up” in a prior accident which she “got over in two or three days,” she voluntarily injected the matter by testifying that the insurance adjuster offered her attorney $1,000, which she accepted “for me falling. But I did not hurt myself.” Error is not shown thereby, in our opinion. See cases cited, Bishop v. Carter, Tex.Civ.App., 408 S.W.2d 520, syl. 1, writ ref. n.r.e.

Refusal to permit the reading of the carrier’s answers to interrogatories (propounded under Rule 168, Texas Rules of Civil Procedure) to the jury is the subject of another point. The answers were to the effect that although claimant had “claimed to have been injured as described in her claim for compensation”, appellee had no other knowledge of location or time of the accident; of nature and extent of pain, or injuries sustained on the alleged date; of names of witnesses, or of whether claimant was injured in the course of her employment. The court offered to permit claimant to “pick out the ones you think you need to establish as an element in the case to read to the jury.” The court’s comment before the jury, in ruling on the objection, that the answers were not of any probative value is also complained of. Appellants’ theory is, apparently, that the purpose of offering the answers was “to lay the predicate for impeachment” because “the insurance doctor had written a report stating plaintiff was injured”, and the carrier afterward denied it knew she was. injured. The answers to the interrogatories as framed would not constitute “impeachment” evidence. If the answers could be said to constitute prior inconsistent statements, since they would not constitute substantive evidence, the court’s remark before the jury was not error. II McCormick & Ray, Texas Law of Evidence, Sec. 688, p. 532.

Reversal is asked because the court sustained an objection to a question asked on cross-examination of the carrier’s medical witness. He was asked whether his opinion as to incapacity would be different if he knew other facts which claimants’ counsel stated were in evidence. The bill of exception shows his answer, if admitted, would have been: “No, it wouldn’t.” Apart from the question of whether the testimony recited by counsel was actually in the record, the adverse negative answer of the witness elicited on the bill of exception demonstrates there was no harm in its exclusion. 4 Tex.Jur.2d, Appeal and Error, Sec. 434.

Another point complains of admission of X-rays in evidence. Their admission was clearly error. The real question is whether the error is harmless or reversible.

The X-rays were admitted as exhibits attached to the deposition of the records custodian of a hospital, who testified she had in her possession X-rays pertaining to treatment or services rendered to claimant. There was no proof of compliance with requisites of Art. 3737e, Vernon’s Ann. Civ.Stat. There was no evidence as to who made the X-rays, how they were made, or whether they correctly portrayed what they purported to represent. Claimants’ objections on these grounds, and for the reasons that no proper predicate had been laid, and that they had hot been identified or otherwise authenticated, were overruled. The court apparently was led to believe these X-rays would be proved up by later testimony, but, such testimony was not produced. -

A critical element of the carrier’s defense was that claimant had suffered a prior injury which caused much of her incapacity now claimed. Claimants’ motion in limine to prohibit evidence of “unrelated, prior claims” was at first conditionally sustained, but when evidence of a prior injury and claim was offered subsequently, it was admitted. The latter evidence had to do with an accident three years previously when claimant fell in a department store. The jury returned a negative answer to an issue as to whether claimant’s incapacity was solely caused by a pre-existing condition, “disconnected with and not aggravated” by the injury now alleged (which was found to be the producing cause of seven weeks’ total incapacity) . There was evidence which would have supported findings of much greater extent and duration of incapacity than the jury found.

The insurer had introduced other authenticated and identified X-rays made in 1965 which, it was testified by the doctor under whose supervision they were taken, showed narrowing of intervertebral interspaces, lipping and spondylolisthesis. Claimant made no objection to these X-rays. The effect of this doctor’s testimony was that claimant sustained a back strain from which she recovered in about 2½ months.

The X-rays now complained of were introduced on the following day of the trial. They bore a date mark of 1962, which was about three years before the accident alleged in the present suit. The same medical witness who had testified concerning the X-rays introduced the previous day was then examined by the insurer concerning the 1962 films. He testified they exhibited narrowed interspaces, lipping and spondylolisthesis, “the same thing we discussed yesterday” as shown in the 1965 X-rays. u

The obvious purpose of this testimony, based on the X-rays improperly in evidence, was to demonstrate that claimant’s vertebral condition as shown in the X-rays made following her presently claimed injury was the same as her condition shown in the 1962 X-rays. It was reasonably calculated to induce the jury to so believe, and in our opinion probably resulted in an improper judgment.

The judgment is reversed, and the cause remanded.