author: HIGHTOWER, Chief Justice.

text:
    GULF, COLORADO & SANTA FE RAILWAY COMPANY, Appellant, v. George H. BLISS et al., Appellees.
    No. 6369.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 13, 1962.
    Rehearing Denied Oct. 3, 1962.

      Chilton O’Brien, King, Sharfstein & Rien.stra, Beaumont, for appellant. .
    Alvin E. Wiggins, Beaumont, for appel-lees.
   HIGHTOWER, Chief Justice.

• Our opinion of June 28, 1962 is withdrawn and the following substituted in lieu thereof.

This action was instituted by appellee George H. Bliss and 16 other residents of what is known as Hawthorn Place Addition in the City of Beaumont, against appellant, Gulf, Colorado & Santa Fe Railway Company, and against City of Beaumont. The purpose of the suit was to recover damages on account of the flooding of appellees’ homes because of lack of alleged drainage facilities in and adjacent to Hawthorn Place in September, 1958, after heavy rainfall in the area. Santa Fe and City each filed separate answers asserting that its action was not violative of any law and was not negligent under the circumstances and each claimed indemnity and contribution by way of cross-action from the other.

Hawthorn Place is a new addition, planning in 1953 and construction and development thereof began in 1954. It lies immediately west of and adjacent to appel■lant’s right of way. This railroad runs slightly west of north but for the purposes hereof, it will be considered as running north and south. Just east of and parallel to the railroad is Helbig Road, a public, thoroughfare.

The homes of appellees are along Spencer Drive in said addition and this is the first street in the addition west of the railroad .right, of way. Part of these homes ar-e on the west side of Spencer Drive and part on the east.

The natural flow of surface waters in the area is from west to east toward the Neches. River. The engineer who laid out Hawthorn Place and designed its drainage requirements proposed the following for outfall facilities to move the surface waters, from the affected area: (1) With permission of" the railway company a new ditph. referred to in the.evidence as the “Hawthorn Place Outfall ditch”. should be constructed north from the railway company’s, ■bridge 4.4 along the side of and parallel to-its right of way for a distance of some 1600’ feet. This bridge is a railway company-bridge situated near the southeast corner-of Hawthorn Place Addition. (2) A ditch known as the “23rd Street ditch” should be deepened, widened and extended. This, ditch extends from 11th Street (which' runs north and southwest of the affected area), northwardly, then bears easterly, and southerly touching the easterly part at the south boundary of said addition, thence-to said bridge 4.4, and thence extends east-wardly to the Neches River marshes. The-last section of the “23rd Street ditch” from bridge 4.4 to the marshes, was to be the-main outlet for surface waters in • the involved area. In addition to these drainage-facilities for the addition, the City proposed to widen, deepen and otherwise improve, a ditch identified in the evidence as. the “Woodlawn” or “Clara Baldwin” ditch. This was the ditch which would extend and bring water from the addition known as. Woodlawn northwardly along the west side and adjacent to the right of way of the railway company to its junction with the “23rd Street ditch” and “Hawthorn Place-Outfall ditch” at bridge 4.4. With some-modification, these facilities were carried out as planned.

The cause was tried to a jury and upon its verdict, the court rendered judgment in behalf of appellees against Santa Fe for the total of $35,811.13, and refused to allow •Santa Fe indemnity or contribution against the City. From this judgment Santa Fe has appealed. Appellant Railway Company will hereinafter be referred to as Santa Fe and the City of Beaumont will be referred to as City.

In conformity with the allegations of the plaintiffs’ second amended original petition, the jury found the following acts of omission constituted negligence by Santa Fe, each of which proximately resulted in the plaintiffs’ damages:

In permitting old piling and timber to remain under bridge 4.4 on September 20, 1958. (Issue 7)

Failure to provide an adequate culvert or sluice for the necessary drainage of surface water as the natural lay of the land required from the area of the plaintiffs’ homes. (Issue 10)

Failure to widen the ditch beneath bridge 4.4. (Issue 15)

Favorably to Santa Fe, the jury found:

Santa Fe did not fail to maintain the necessary culverts or sluices as the natural lay of the land required for the necessary drainage of the area of plaintiffs’ homes. (Issue 1)

•Santa Fe’s failure to deepen the ditch beneath bridge 4.4 was not negligence. (Issue 13)

Santa Fe obstructed the natural flow of surface waters from the west to the east of its railway embankment, but such act was not negligence. (Issues 17, 18)

Digressing here it is perhaps well to say that there are no contentions under the circumstances of conflicting answers in the verdict.

As' against City in the same petition, plaintiffs charged the following acts by City to be negligence and a proximate cause of plaintiffs’ damages:

a. Failing to dig a drainage ditch parallel to the railroad to a deeper depth as shown by facts and circumstances (Hawthorn Place Outfall ditch).

b. In failing to give a greater fall to said ditch than the two other ditches converging at bridge 4.4.

Ultimately, the plaintiffs did not seek the submission of any issues against City under these allegations.

The allegations of City in its cross-action against Santa Fe were essentially the same as those pleaded by the plaintiffs against Santa Fe. Additionally, City sought indemnity or contribution against Santa Fe.

In its cross-action against City seeking indemnification or contribution, Santa Fe pleaded that the City, by its construction, control and maintenance of the 23rd Street ditch, the Hawthorn Place Outfall ditch and the Woodlawn ditch, had caused to be collected at bridge 4.4 a much greater quantity of water than would have been collected there by the natural lay of the land, and a quantity of water so great that it backed up into Hawthorn Place, said acts being the. sole cause of plaintiffs’ damages. (All italics in the opinion ours)

.Santa Fe also alleged that at all times material the City knew or should have known that it was bringing more water to bridge 4.4 than it could care for, and should have advised Santa Fe of any inadequacy in the opening in bridge 4.4; that its failure to do so was negligence and the sole cause of the flooding of plaintiffs’ homes.

It is to be noted that Santa Fe failed to allege that any of the acts of City were the proximate cause of plaintiffs’ damages.

In connection with the foregoing allegations of Santa Fe’s cross-action against the City of Beaumont, the jury found:

On September 20, 1958, there was' caused to be collected by the City in the 23rd Street ditch at the point of intersection with Hawthorn Place Outfall ditch and the Wood-lawn ditch, upstream from bridge 4.4, a larger quantity of water than would have been collected at such point by the natural lay of the land; that such collection of water on September 20, 1958, was negligence; that such negligence was not the sole proximate cause of the flooding of plaintiffs’ homes. (Sp. Issues 33, 34, 36)

That prior to September 20, 1958, the City failed to inform the Railway Company that the quantity of water which would be collected at the opening beneath bridge 4.4 following intense and heavy rain exceeded the capacity of said opening to carry such water; that such failure to inform the Railway Company was negligence; that such negligence was not the sole proximate cause of the flooding of plaintiffs’ homes. (Issues 42, 43, 45)

Additionally, it was found by the jury:

That the opening beneath bridge 4.4 was sufficient as the natural lay of the land required for the necessary draining thereof before the construction and development of Hawthorn Place, the digging of the Hawthorn Place Outfall ditch, the cleaning, deepening and widening of the 23rd Street ditch, and the cleaning, deepening and widening of the Woodlawn ditch. (Issue 39)

That the City knew or in the exercise of ordinary care should have known prior to September 20, 1958, that the quantity of water which would be collected at the opening beneath bridge 4.4 following intense and heavy rain exceeded the capacity of said opening to carry such water. (Issue 40)

After the jury had returned its verdict, the plaintiffs moved for judgment against the defendants or either of them in the total amount of $35,811.13. The City of Beaumont moved for judgment in its favor, both as to plaintiffs and on defendant Santa Fe’s cross-action, to disregard certain special issues, and for judgment non ob-stante veredicto. Santa Fe moved for judgment on the verdict of the jury, for judgment on its cross-action against the City for indemnity, and in the alternative for judgment against the City by way of contribution for one-half of any sums adjudged in favor of plaintiffs; and that judgment, if in favor of plaintiffs, be rendered jointly against City of Beaumont.

In disposing of these motions, the court awarded plaintiffs damages in the total amount of $35,811.13, with recovery solely against Santa Fe. It granted City’s motion for judgment on the verdict with respect to the cross-action of Santa Fe. All other motions were denied.

No motion for new trial was filed. This appeal is taken under Rule 324, Texas Rules of Civil Procedure, Santa Fe, now appellant, having made motion for judgment on the verdict, which motion was overruled.

In conformity with its motion for judgment on the verdict, the substance of Santa Fe’s two points of error are:

(1) The error of the court in denying Santa Fe judgment against City for full indemnity; (2) the error of the court in denying Santa Fe judgment for contribution by the City to the extent of one-half the sums adjudged in favor of plaintiffs, the evidence and findings of the jury having established as a matter of law that the acts of City were a proximate cause of the plaintiffs’ damages.

The essence of Santa Fe’s contentions for indemnity is (1) that its negligence was only of a passive nature while the negligence of City was of an active nature; (2) that even though it and City may have violated a duty each owed to the plaintiffs, nevertheless the findings of the jury establish that City also violated a duty it owed to Santa Fe; (3) that notwithstanding Santa Fe’s negligence City, being aware of the plaintiffs’ perilous situation, committed the negligent acts as found by the jury.

On the other hand, the substance of City’s contention under its three counterpoints is (1) that Santa Fe violated duties it owed to City; (2) that the acts of City caused no damage to Santa Fe; (3) that a judgment in favor of Santa Fe would be without support in its pleadings or the findings of the jury. This last contention of City will be discussed in a latter part of the opinion.

Under the common law, as a general rule, joint tortfeasors have no right of indemnity among themselves. That rule rests on considerations of public policy, it being against the policy of the law to adjust equities between wrongdoers, or to allow a person to found an action on his own wrong. 18 C.J.S. Contribution § 11, p. 15. However, it is often said that the rule does not apply where the joint tortfeasors are not in pari delicto as to each other, as where the injury resulted from a violation of the duty one owes the other. Gulf, C. & S. F. Ry. Co. v. Galveston, H. & S. A. Ry. Co., 83 Tex. 509, 18 S.W. 956; City of San Antonio v. Smith, 94 Tex. 266, 59 S.W. 1109; City of San Antonio v. Talerico, 98 Tex. 151, 81 S.W. 518; Kampmann v. Rothwell, 101 Tex. 535, 109 S.W. 1089, 17 L.R.A.,N.S., 758; Austin Electric R. Co. v. Faust, Tex.Civ.App., 133 S.W. 449; City of Weatherford Water, Light & Ice Co. v. Veit, Tex.Civ.App., 196 S.W. 986; 18 C.J.S. Contribution § 11, p. 16.

Under Article 2212, Vernon’s Ann.Civ.St, in order to relieve the rigor of the common law, the rule was modified and enlarged so as to allow enforced contribution among joint tortfeasors who are in pari delicto as to each other, and thereby place the burden equally upon all solvent tortfeasors. Gattegno v. The Parisian, Tex.Com.App., 53 S.W.2d 1005; Oats v. Dublin Nat. Bank, 127 Tex. 2, 90 S.W.2d 824; East Texas Public Service Co. v. Johnson, Tex.Com.App., 6 S.W.2d 344. The statute further provides that it shall have no application where the right of contribution or indemnity existed under the common law. This does not mean that the statute abrogates the common law rule as to the rights of wrongdoers who are not in pari delicto with each other. Thus, where the parties are not equally guilty, the principal delinquent may be held responsible to a co-delinquent for damages paid by reason of the offense in which both participated in different degrees as perpetrators. In most of the instances, however, in which that situation has arisen, there was no concerted action, and one of the tortfeasors has breached a duty he owed both to his co-tortfeasor and to the injured third person; and under such circumstances, though both are liable to the injured third person, as between themselves the blameless should be allowed indemnity. In order to determine whether the loss should be shifted from one tortfeasor to another the proper approach is to consider the one seeking indemnity as though he were a plaintiff suing the other in tort, and then determine whether such a one as plaintiff, though guilty of a wrong against a third person, is nevertheless entitled to recover against his co-tortfeasor. Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563.

With these principles in mind, we seek to determine whether or not either party here is entitled to indemnity of the other and, if not, whether or not Santa Fe is entitled to contribution from City.

Article 6328, Vernon’s Ann.Civ.Statutes of Texas, provides: “In no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as the natural lay of the land requires, for the necessary drainage thereof.”

City asserts the findings of the jury conclusively establish that Santa Fe violated the duty imposed by such statute, both as to it and plaintiffs. However, we cannot sustain the contention.

Special Issue No. 1 and the answer thereto is:

“From the preponderance of the evidence, do you find that the defendant, Gulf, Colorado & Santa Fe Railway Company, on or about September 20, 1958, failed to maintain its roadbed with the necessary culverts or sluices as the natural lay of the land required for the necessary drainage of the surface waters of the area within the Plaintiffs’homes are located? Answer: No.”

Special Issue No. 10 and the answer thereto is:

“From the preponderance of the evidence, do you find that the defendant, Gulf, Colorado & Santa Fe Railway Company, on or about September 20, 1958, failed to provide an adequate culvert or sluice, for the necessary drainage of the surface waters, as the natural lay of the land required, if any, from the area in which the plaintiffs’ homes are located? Answer: Yes.”

Notwithstanding the similarity of these two issues and the answers thereto (neither party attempts to distinguish the similarity in their briefs) it appears to us that Special Issue No. 1 more nearly conforms to the wording of the statute, inasmuch ás such issue refers to necessary culverts or sluices of the railroad roadbed; whereas Special Is-!'su'e 'No. 10 poses the question of adequate culvert or sluice. Also, we believe Special Issue No. 10 is properly distinguished by reading it in conjunction with Special Issue No. 7, supra, whereby the jury found Santa Fe negligent in permitting old piling and timber to remain under bridge 4.4. It is to be noted that Special Issue No. 10 refers to culverts or sluices in the singular, indicating that although they believed that Santa Fe in the first instance did not fail to maintain its roadbed with the necessary culverts or sluices, yet in answer to Special Issue No. 10 they believed that by allowing timber and piling to obstruct the sluice or culvert at bridge 4.4, that the same was not adequate for the necessary drainage of the surface waters.

We are of the opinion that City is bound by the finding of the jury in answer to Special Issue No. 1. As hereinabove .stated, the City’s motion for judgment on the verdict of the jury as to Santa Fe’s cross-action against it was granted by the court. The general rule is that the granting of a party’s motion for judgment on the verdict of the jury, absent an alternative motion for judgment notwithstanding the verdict, constitutes an affirmance of the verdict by the moving party. 4 McDonald T.C.P., p. 1414, and authorities there cited. True City had filed its motion for instructed verdict at the close of the evidence, and simultaneously with its motion for judgment on the verdict, it filed a motion for judgment notwithstanding the verdict. However, there can be no argument that the motion N.O.V., was too general in itself to raise the question of no evidence to support Special Issue No. 1, and the motion for instructed verdict did not itself raise the question and we may not here consider it. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887.

Nevertheless, if it were conceded that either party breached a duty it owed to the other, we perceive no basis upon which either could recover indemnity against the other within the meaning of the rule referred to in Austin Road Co. v. Pope, supra.

Nor, do we sustain Santa Fe’s first and third contentions for indemnity as heretofore outlined. We do not sanction the doctrine of active versus passive negligence in the circumstances of this case, and Santa Fe’s theory of discovered peril has been expressly repudiated by Courts of Civil Appeals in the two recent cases of Kimbriel Produce Co. v. Mayo, 180 S.W.2d 504, writ ref. w. m., and Texas Bus Lines v. Whatley, Tex.Civ.App., 210 S.W.2d 626, n. r. e.

To the contrary, it is our considered opinion that the record reflects that Santa Fe and City were equally culpable in bringing about the flooding of plaintiffs’ homes, they stand in pari delicto and neither is entitled to indemnity; therefore, under the authority of the Austin Road Company case, supra, each would ordinarily have to bear its proportionate part of plaintiffs’ damages.

However, we are now met with City’s contention that inasmuch as Santa Fe failed to plead that any of City’s acts of negligence were a proximate cause of plaintiffs’ damages, judgment in favor of Santa Fe against City for contribution would be erroneous. Though we sustain this last contention of City, we feel we must further extend this opinion by stating, in substantial detail, the basis for Santa Fe’s contentions to the contrary.

First, it urges, in substance, that its cross-action was broad enough to apprise City that it was charged with being a joint tort-feasor whose negligent acts proximately contributed to the plaintiffs’ damages and of whom contribution was sought under the provisions of Article 2212, supra. Essentially, it contends that proof under its allegations of sole cause in regard to City’s acts of negligence necessarily required proof, which was made, that City’s acts were a proximate cause. It also refers to ■this statement in its cross-action:

“In the event that this defendant, Gulf, Colorado & Santa Fe Railway Company, is liable to the plaintiffs in this cause in any amount, then it is entitled to a judgment against the said City of Beaumont, defendant herein, for the full amount of same, or in any event it is entitled to a contribution from the City of Beaumont for one-half of said amount.” Thus, Santa Fe pleaded for contribution. It pleaded sole proximate cause, and inasmuch as proof of either necessitates proof of proximate cause it asserts that it sufficiently charged that City’s acts of negligence were the proximate cause of plaintiffs’ damages.

We overrule such contention on the basis .that Santa Fe was bound by its specific allegations of “sole cause”, and that such allegations control over any implication of an intendment to plead “proximate cause” as might be inferred by the allegation regarding contribution. We are of the opinion that Santa Fe’s cross-action amounted to no pleading at all for contribution. Fenley et al. v. Ogletree et al., Tex.Civ.App., 277 S.W.2d 135.

Even so, Santa Fe contends that it should have the benefit of certain allegations contained in the second amended original petition and a trial amendment of plaintiffs, each of which charged City with acts of negligence which proximately caused plaintiffs’ damages. In this connection it relies heavily upon the case of Goldstein Hat Mfg. Co. v. Cowen, Tex.Civ.App., 136 S.W.2d 867, which decision shall be discussed hereinafter.

As hereinabove noted in stating the various allegations of the pleadings of all parties herein, the plaintiffs in their second amended original petition upon which trial was had, did not seek to recover judgment from City upon the same theory as did Santa Fe. Recapitulating for convenience, the plaintiffs’ charge against City was that it failed to dig a certain drainage ditch to a .deeper depth, and in failing to give a greater fall to said ditch than it did to two other ditches converging at the same point, and that these failures were negligence and a proximate cause of the flooding of plaintiffs’ homes. On the other hand, the charge made by Santa Fe was that City caused a greater accumulation of water at bridge 4.4 than would have accumulated there by the natural lay of the land, and City’s failure to inform Santa Fe of the inadequacy of the opening at bridge 4.4; that this act and this omission was the sole proximate cause of plaintiffs’ damages. Thus two different theories of recovery against City were advanced. Santa Fe’s theory of causation was directly opposed to that of the plaintiffs. It was not entitled, simply by reason of plaintiffs’ pleadings, to a finding by the court that the acts of negligence with which it had charged City were a proximate cause of plaintiffs’ damages, thereby entitling it to judgment for contribution against City. Santa Fe could only recover upon the strength of its own pleadings. The contention to the contrary is overruled. New Nueces Hotel Co. v. Sorenson, 124 Tex. 175, 76 S.W.2d 488; Missouri, K. & T. Ry. Co. of Texas v. Kennon, Tex.Civ.App., 164 S.W. 867; Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130.

The holding in the Goldstein case, supra, upon which Santa Fe relies is distinguishable on the facts. There both co-defendants’ acts were found equally negligent, proximately restdting in plaintiffs’ injuries, under primary facts both plead and relied upon by the plaintiff for recovery.

Plaintiffs’ trial amendment, above referred to, in substance adopted Santa Fe’s pleading in respect to control by City of the ditches, and its negligence in the accumulation of water at bridge 4.4, alleging that this was a proximate cause of the plaintiffs’ damages. The court subsequently granted leave to plaintiffs to withdraw this trial amendment over the objection of Santa Fe. However, no motion for new trial was made to this action of the trial court and complaint thereof has been waived. Suffice it to say, however, the record reflects the trial court’s action to have been based upon justice and sound reasoning, a discussion of which would serve no useful purpose.

Lastly, Santa Fe asserts that the jury answers to certain damage issues to the effect that the negligence of City proximately caused the flooding of plaintiffs’ homes entitles it to judgment on the verdict for contribution from City.

Should such general findings by the jury in response to damage issues be ordinarily entitled to any weight, they are not in the circumstances for the reason that City properly objected to the submission of the same upon the ground that there were no pleadings to support the causation elements therein contained. Hence, it cannot be held that City tried such issues by consent. Harkey v. Texas Emp. Ins. Ass’n., 146 Tex. 504, 208 S.W.2d 919 (S.Ct.)

Judgment affirmed.


source: Caselaw Access Project

author: McNEILL, Justice.

license: Public Domain

text:
    Rufus SOWELL, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 6542.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 11, 1962.
    Rehearing Denied Nov. 7, 1962.
    Second Motion for Rehearing Denied Nov. 28, 1962.

      Fulmer, Fairchild & Badders, Nacogdo-ches, for appellant.
    Garrison, Renfrow, Seleskey, Cornelius & Rogers, Lufkin, for appellee.
   McNEILL, Justice.

This is a Workmen’s Compensation case. The following is taken from appellant’s brief: “Rufus Sowell, appellant, alleged that permanent total incapacity resulted from an injury to his back on November 12, 1960. Upon a jury’s findings that such injury resulted in partial incapacity for 14 months, that Sowell’s earning capacity during such period was $22.20, that Sowell’s prior injuries of 1950 and 1956 contributed to such partial incapacity, and that 25% of such incapacity was due solely to the injury of November 12, 1960, the trial court rendered judgment for Sowell against the appellee, Travelers Insurance Company, for compensation for 61 weeks at the rate of $3.07, representing 25% of the difference between his average weekly wage, $42.69, and his weekly wage earning capacity during the period of such partial incapacity, $22.20.”

Appellant has appealed from this judgment and attacks it upon eight points of error. The first is to the effect that since Issue No. 16 inquired what percentage of appellant’s incapacity was due “solely” to the injury of November 12, 1960, the issue did not allow the jury to take into consideration any aggravation, acceleration or lighting up of any prior diseases or conditions, and consequently placed an undue burden of proof upon him.

To understand the problem presented, an outline of the court’s charge follows.

Issues 1 through 9 involved the existence, extent and duration of the injury sued upon; 10 and 11 involved the wage rate; 12 and 13 were on the issue of manifest hardship. Issues 14, 15 and 16 having to-do with contribution of prior injuries then followed. These three issues and answers were:

“SPECIAL ISSUE NO. 14. Do you find from a preponderance of the evidence that plaintiff’s injury of October, 1950, does not contribute to plaintiff’s incapacity, if any you have found?
Answer: ‘It does not’ or ‘It does’.
Answer: It does.
“SPECIAL ISSUE NO. IS. Do you find from a preponderance of the evidence that plaintiff’s injury of April, 1956, does not contribute to plaintiff’s incapacity, if any you have found? Answer: ‘It does not’ or ‘It does’. Answer: It does.
“If you have answered either Special Issue No. 14 or 15, ‘It does’, and only in that event, then answer the following Special Issue:
“SPECIAL ISSUE NO. 16. From a preponderance of the evidence, what percentage, if any, of plaintiff’s incapacity, if any you have found, is due ■ solely to the alleged injury of November 12, 1960? Answer by stating the percentage, if any. Answer: 25%.”

The charge contained this definition of injury:

“You are instructed that by the term ‘INJURY’ as used in this Charge, is meant damage or harm to the physical structure of the body, and such diseases or infection as naturally result therefrom, or the lighting up, acceleration or aggravation of any disease or condition previously existing, by reason of such damage or harm to the physical structure of the body.”

It is elementary that injury as applied in the Workmen’s Compensation Act not only covers the primary physical impact or harm, but as defined above, includes aggravation of any disease or condition, previously existing. Since the language of the instruction defining “injury” included the phrase “as used in this Charge”, it is inescapable that each time the word “injury” appeared in the charge the definition became a part of and modified it. Though no argument of counsel is in the record, this, no doubt, would have been a legitimate comment upon the issues for the benefit and guidance of the jury. In view of the sagacity of appellant’s counsel, we entertain no doubt that full advantage was taken of this right of comment.

In ascertaining to what extent prior injuries' contributed to a claimant’s disability, this court in Travelers Insurance Co. v. Glenn, Tex.Civ.App., 358 S.W.2d 136, stated (p. 138):

“This extent could have been determined by asking the jury what percent of plaintiff’s present incapacity, if any, resulted solely from the second injury, or by asking the jury what percent of plaintiff’s present incapacity, if any, resulted solely from the first injury.”

See, also, Texas Emp. Ins. Ass’n v. Griffis, Tex.Civ.App., 141 S.W.2d 687; Texas Indemnity Ins. Co. v. Perdue, Tex.Civ.App., 64 S.W.2d 386; Traders & General Ins. Co. v. Watson, Tex.Civ.App., 131 S.W.2d 1103; Texas General Indemnity Co. v. Savell, Tex.Civ.App., 348 S.W.2d 202. While in none of the cited cases the very point now presented was made, they are persuasive. Appellant’s first point is overruled.

The second through fifth points are treated together in appellant’s brief and we shall do likewise. The second point urges the jury’s finding in answer to Issue No. 4 that plaintiff sustained no total incapacity is contrary to the undisputed evidence; and the third point urges that this answer is against the great weight and-' preponderance of the evidence, is clearly wrong and manifestly unjust. The fourth point urges that the answers of the jury to Special Issues 8 and 9 which found that partial incapacity resulted from the injury of November 12, 1960, began on that date and continued for 14 months, are contrary to the undisputed evidence in view of the fact that appellant sustained total incapacity for a substantial period of time immediately after November 12, 1960; and the fifth point assails these findings as being contrary to the great weight and preponderance of the evidence so as to be clearly wrong and manifestly unjust. We have examined the statement of facts and are satisfied that the answers made by the jury are not subject to the complaints made. We set out below a short summary of the evidence bearing upon these points.

Appellant was injured while working for DeWitt’s Hatchery on November 12, 1960. He stated he was emptying a tub of water weighing 25 or 30 lbs. and wrenched his lower back. Dr. T. J. Pennington testified for appellant. He examined appellant shortly after the injury and at that time appellant was complaining of pain in his lower back, abdomen and legs. The doctor also testified he found spasms of the lower abdomen and severe spasm of the lumbar muscles and tenderness on the left side and back. Dr. Pennington immediately placed his patient in a hospital for some three weeks, two weeks of which time he was in traction. Appellant argues from this that he was, as a matter of law, totally disabled for at least two weeks and Issues 4, 8 and 9 were therefore clearly against the undisputed evidence. It is undisputed that appellant was in the hospital, but appel-lee asserts that whether it was reasonably necessary to have placed appellant in the hospital and in traction was one for the jury to determine. The belief upon the part of the doctor that he needed this sort of attention was, in effect, but his opinion as to what the patient needed. The jury was, therefore, not bound to accept his opinion. Appellant has cited no case sustaining his position, and we are of the opinion that the question of whether the treatment given appellant was needed, under the facts of this case, was one within the province of the jury to settle as it did.

The 6th point urges that since appellant’s injury of October, 1950, was a specific injury to his left leg and the injury sued upon of November 12, 1960 was a general injury to appellant’s back, the trial court erred in submitting Special Issue 14 inquiring whether the former injury contributed to appellant’s incapacity over the objection that the circumstances in connection with his 1950 injury did not bring into play Sec. 12c of Article 8306, Vernon’s Ann.Tex.St. Upon this point, appellant calls our attention to Miears v. Industrial Accident Board, 149 Tex. 270, 232 S.W.2d 671, and St. Paul Fire & Marine Ins. Co. v. Murphee, Tex., 357 S.W.2d 744. We have read these authorities and do not believe they sustain appellant. Sec. 12c, in the respect involved here, makes no distinction between specific and general injuries. Traders & General Ins. Co. v. Gibbs, Tex.Civ.App., 229 S.W.2d 410. The 6th point is overruled.

Appellant’s 7th point asserts that there was no evidence that the injury of 1950 contributed to the incapacity sustained by plaintiff as a natural result of his injury of November 12, 1960; hence the trial court erred in submitting Special Issue 14, inquiring whether the 1950 injury did contribute to plaintiff’s incapacity. The testimony shows that appellant sustained a broken left leg just above the ankle in October, 1950, while on a former job. Dr. Pennington treated him several months for this injury. His ankle was swollen for a considerable part of the time. He was discharged from treatment for this injury on May 15, 1951 to return to work, at which time the doctor was of the opinion that Sowell had 25 percent partial permanent loss of use of his left leg. The doctor stated that because of the fracture the leg might become slightly shorter and in such case would cause a tilting of the pelvis which would produce a pull on the muscles of one side of the back. X-rays taken in 1956 showed appellant had curvature of the spine. Dr. Pennington never noticed Sowell’s left leg being shorter than the other but he did not recollect that he had ever measured the leg. The above is sufficient to sustain the jury’s finding that the 1950 injury did contribute to appellant’s present incapacity. The 7th point is overruled.

The 8th point asserts that the answer of the jury to Special Issue No. 15 to the effect that the injury sustained by appellant in April, 1956, contributed to the incapacity resulting from appellant’s November 12, 1960 injury was against the great weight and preponderance of the evidence and clearly wrong.

It was shown that appellant sustained a low back injury in April, 1956. This injury was sustained while he was swinging an ax on a different job. At the time he had a sudden acute pain in the back so severe he almost screamed and became nauseated. Upon examination following this injury Dr. Pennington found abdominal soreness, pain in the legs, difficulty in bending over, and also found a left lumbar swelling and acute spasm and tenderness on both sides of his lower back. Since appellant did not return to work until more than 8 months after his injury of April, 1956, Dr. Pennington was of the opinion the injury received was a severe one. X-rays taken at the time made by Dr. Pennington revealed a curvature of plaintiff’s lumbar vertebrae and arthritis therein. He stated he was suspicious of a ruptured disc when treating appellant in April, 1956. From x-rays made by him in May, 1950, he found appellant had arthritis in the lower and middle part of his back. He stated that the 1956 injury possibly contributed to plaintiff’s present incapacity, but he was of the opinion that the present condition of appellant was due primarily to the disc injury of November, 1960. Dr Freiberg, witness for appellee, was of the opinion that plaintiff’s present complaint and disability could have been as well caused by the injury of 1956 as by the injury of November, 1960. The testimony of Harokl Schabow, Manager of DeWitt’s, was to the effect that Sowell did a lot of complaining about his back, both in the shoulder area and the small of his back, before the date of the claimed injury of November 12, 1960. Appellant first denied that he ever had any low back strain or injury before the injury of November 12, 1960, but after Dr. Pennington had testified to his examination and treatment of appellant for the injury of 1956, he changed his testimony. There was other contradiction in his testimony with reference to wages which he had received. Taking the record as a whole and realizing that the jury saw and heard the witnesses and were in much better position to pass upon their credibility than is an appellate court, we cannot say that the answer of the jury to Issue No. 15 was against the great weight and preponderance of the evidence. The last point is therefore without merit.

Believing the trial court’s judgment was properly rendered, it is affirmed.

ON MOTION FOR REHEARING

Appellant requests that this court pass more directly on his first point. In' his argument he has suggested a new and unique theory in connection with the submission of the special issues in reference to a prior condition. Appellant admits the court’s charge adequately covers a situation in which a claimant’s prior condition is aggravated or incited by an injury. But he contends a claimant is entitled to recover for the combination of a prior condition and an injury, even though there is no aggravation or incitement by the injury of the prior condition. We do not believe this is the law in this state. The term “injury” or “personal injury” is defined in Art. 8306, sec. 20, Vernon’s Ann. Tex.St. The decisions in this state have interpreted this definition to include an aggravation, acceleration or incitement of a prior disease or condition. No decision that we have found includes the mere combination of a prior disease or condition with the injury. The law should not be extended to cover such a situation. There are many decisions in this state firmly establishing the “aggravation doctrine”. Some of these cases demonstrate how far a claimant must go in proving aggravation such as, existence of the condition prior to the injury, perceptible damage done to the prior condition by the jury, and the subsequent course of aggravation. See, Whitten v. Liberty Mutual Ins. Co., 5 Cir., 257 F.2d 699.

The motion for rehearing is overruled.


text:
    C. L. BARMORE, Appellant, v. SAFETY CASUALTY COMPANY, Appellee.
    No. 6596.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 13, 1962.
    Rehearing Denied Jan. 9, 1963.
    John Seale, Jasper, for appellant.
    James T. Fitzpatrick, Midland, Wardlow Lane, Center, for appellee.
   McNEILL, Justice.

Appellant sought benefits under the Workmen’s Compensation law for total and permanent incapacity resulting from an alleged injury of March 9, 1960. Since judgment was against him, the parties here will be referred to as they were in the trial court.

In answer to the first special issue submitted to it, the jury found that plaintiff had not sustained an injury on or about March 9, 1960. Seeking to set aside the judgment of the lower court and for remand, plaintiff urges a single point of error. This point asserts that,, since the charge- of ‘‘recent fabrication” had been leveled by defendant at plaintiff, the trial court erred in excluding the testimony of plaintiff’s wife in rebuttal that he told her the morning after his claimed injury that he had been hurt- on the job.

The question whether plaintiff had had an accident and sustained any injury on the occasion in question was vigorously contested. To put the question in proper perspective, we set forth a summary of pertinent events as they developed at the trial. Plaintiff was the' first witness taking the stand and on direct examination, after having told about being employed by So-cony-Mobil Oil Company as a tank-truck driver, stated that the night of March 9th, while driving along the highway some electric wires in the motor of the truck shorted and caught on fire. Upon discovering this he immediately pulled his truck off the highway and, just before he stopped its roll, he jumped out of the cab and claimed to have injured himself doing so. After waiting about an hour beside the road, another employee of the company, Sterling Hoke, coming from the opposite direction stopped his truck and plaintiff told him about the motor catching on fire. Plaintiff was then asked whether he told Sterling Hoke at that time that he had gotten hurt, in answer to which he said he did. He testified that Hoke flagged a car for him and the driver of that car brought plaintiff to the inspection station in Logansport,. Louisiana. After he reached this inspection station plaintiff telephoned his boss, Zee P. Brooks, and reported the break down of the truck. After staying at the inspection station about four hours he caught a ride with his co-employee Hoke, who was then returning from a trip and going back to Center, where plaintiff lived.

On the following cross-examination, plaintiff stated, while he did not remember, he might have mentioned to Brooks that he had gotten hurt. He was then asked whether he had seen a doctor L. S. Oates after his claimed injury and whether he told him of his injury. Plaintiff said he did not remember doing so. He was then asked whether he had any explanation for this, and he stated, “No, sir, I don’t.” In reference to the way the accident happened, he was asked on this examination, “Of course, you had no skinned places on you? No, sir, not * * * ” Then he was asked, “You had no bruises to show anybody. You had no signs on you anywhere? A. No, sir.” When asked whether he fell on his hands when he jumped from the truck, he said he could not answer that. Then: “Uh-huh. But you did not skin your hand and you had no skins any place on you? A. No, sir.” A short time later in this cross-examination, defendant’s counsel stated “As a matter of fact, don’t you know you didn’t have any accident there. You just had your truck short out and you stopped and first man come along, you didn’t tell him you had any injury did you? A. I told him the truck was on fire.” He was then asked if after he went to the inspection station “You didn’t tell that man about being injured did you? A. I did.” Then he was asked whether he told Brooks on the ‘phone that he had gotten hurt, to which he stated he did not remember. Plaintiff was pressed for not having told Brooks about any injury, and in answer to this he said he had no reasonable opportunity to do so and that he knew that there was going to be some men laid off and he wanted to hold his job. As a matter of fact he was let out about two weeks after March 9th. Then defendant’s counsel stated:

“Q. Yeah. And he finally let you out and then you decided to file this claim and then you left him — you ever seen Dr. Dickerson up till then? A. No, sir.
“Q. Till you decided to make a case and when you decided to make a case, you started hunting those kind of doctors didn’t you? One that would swear there was something wrong with you ? A. I didn’t hunt Dr. Dickerson at all.
“Q. Well, did you hunt the lawyers and the lawyers hunted the doctor for you ? Who gave you this doctor’s name? A. Well, I had heard of Dr. Dickerson.
“Q. Well, did you see your lawyer here first? A. Yes, sir.
“Q. And from him did you get Dr. Dickerson’s name? A. Yes, sir.
“Q. Uh-huh. And so at the time you got Dr. Dickerson you really wasn’t trying to get treated, you was trying to file a lawsuit wasn’t you? Trying to make out a case? A. We had talked about it.”

After the above took place, plaintiff was then questioned as to who the man was who took him into the weighing station at Lo-gansport. While he could not recall the man’s name, he described him well and he was located and the man, C. R. Baker, later testified for the defendant to the effect that he did not remember plaintiff mentioning anything about an injury to him. In this connection plaintiff himself had previously testified that he did not remember telling Baker about his injury. Defendant also produced the weighing station witness who stated that while he recalled the incident when plaintiff stayed at the station March 9, 1960, to his knowledge plaintiff did not mention that he had gotten hurt. He heard his conversation with Mr. Brooks on the ’phone but did not remember that plaintiff mentioned his injury to Mr. Brooks. Defendant also placed Brooks on the stand, who testified that while plaintiff had several opportunities to tell him of the injury, he never mentioned it to him either on the telephone or in person. Defendant produced Dr. L. A. Oates, who also testified that insofar as he could recall plaintiff never mentioned an injury to him; that his record listed no such injury and if he had been told thereof, he would have made a note of it.

After defendant rested, plaintiff placed his wife on the stand in rebuttal. The following transpired, while plaintiff’s counsel was examining her:

“Q. Now then, after he had been in Louisiana, the time when his truck got on fire, when he came back, did he tell you anything about getting hurt? A. Yes he did.
“Q. What did he tell you? Á. Well, he— • -
“MR. LANE: Just a minute, I was listening here. We would object to what he told her some several hours or 6 or 8 hours after he came in. Wouldn’t be res jeste.
“COURT: Sustain the objection as to what he told her.
“Q. But did he tell you he got hurt? A. He did.
“MR. LANE: Well we — that’s the same thing.
“MR. SEALE: Now your Honor, the whole case, every witness he’s brought up here, he said ‘Did he tell you he got hurt’ ‘Did he tell you he got hurt.’ That’s the big issue in the case. Now if he can ask his witnesses whether he told them, I think I ought to be able to.
“MR. LANE: That’s different. He’s the plaintiff. We’re the defendants. We’ve got a right to ask that but he can’t ask a self-serving declaration of that type. We’ve got them as admissions from him but he can’t put this witness on unless it’s res jeste.
“MR. SEALE: Silence of a witness can’t be admission—
“MR. LANE: Certainly can be.
"MR.-- FITZPATRICK: If your Honor please Mr. Barmore testified he told these people things. We brought witnesses on to show that he had not. That’s admissible under the hearsay rule.
"COURT: I’m going to exclude what he told her.
“MR. SEALE: Note our exception. And so that we won’t disturb the proceedings, may it be understood I-may complete by bill later in the absence of the jury.
"COURT: Very well.”

The following stipulation was made at the close of the evidence:

“MR. SEALE: Can we stipulate her testimony would have been that he told her he got hurt?
"MR. FITZPATRICK: I guess so John.
“MR. SEALE: I assume — it seems obvious thát’s what she was going to do.
“MR. 'FITZPATRICK: Yes.”

Plaintiff. insists .tjiat as the issue of injury was hotly contested with the charge of “recent fabrication” having been thrown at him, plaintiff’s wife should have been permitted to so testify in rebuttal, and that her testimony may thus have been sufficient to cause the jury to find that he had received an injury on the occasion in question. Defendant counters this upon several grounds: first, it denies that the charge of “recent fabrication” was made. In view of defendant’s vigorous cross-examination of plaintiff, we hold that the charge was made. In fact, the charge was expressly made in this cross-examination twice. This is so in the above quoted statement: “As a matter of fact, don’t yott know you didn’t have any accident there” and in the latter quotation, “Till you decided to make a case and when you decided to make a case, you started hunting those kind of doctors didn’t you? One that would swear there was something wrong with you.”

Undoubtedly the defendant has the right to produce testimony to meet evidence presented by plaintiff that he had sustained an accident, but the cross-examination went much further than this. In addition, although plaintiff did not say that he told Baker, who brought him into the inspection station, that he had gotten hurt, defendant produced him and he testified he had no memory that plaintiff • mentioned that he had gotten hurt. Plaintiff stated he did not remember whether he told his boss that he had gotten hurt when he talked to him on the ’phone. Brooks, when placed on stand by defendant, testified plaintiff never mentioned receiving any injury. And though plaintiff had testified that he did not remember telling Dr. Oates he had gotten hurt, defendant produced Dr. Oates, who stated that plaintiff had not told him about his injury. Thus, the defendant, and not plaintiff, undoubtedly initiated the charge of “recent fabrication.” In this respect the present case differs from Skillern & Sons, Inc. v. Rosen, (Tex.Sup.Ct.) 359 S.W.2d 298.

When a witness is charged at the trial with recent fabrication, his former consistent declarations are admissible to corroborate his testimony, provided such declarations were made at a time when he had no motive to misrepresent the fact stated by him. It was held in Aetna Ins. Co. v. Eastman, 95 Tex. 34, 64 S.W. 863, and in Skillern & Sons, Inc. v. Rosen (Tex.Sup.Ct.) 359 S.W.2d 298, that prior consistent statements of the plaintiff were inadmissible for the reason that in each case plaintiff had the motive (whether influenced thereby or not) to falsify the fact. Or as alternatively stated in the Skillern case, after the time when its ultimate effect and operation could be foreseen. The prior consistent declarations in both Eastman and Rosen took place shortly after the event the plaintiffs claimed took place. Although the fire loss had not occurred in the former case and the consistent declaration was made the day after notice of taking out the second policy was given to the insurance company’s agent, the court said (64 S.W. p. 864): “It is nevertheless true that at the time of the alleged statement it was to his interest to make it.”

There is, however, a modification of the proposition above that prior consistent declarations to be admissible must be made before motive to misrepresent exists. This modification comes into play if defendant raises the charge of recent fabrication and produces witnesses who testify plaintiff was silent about his accident at a time when he could have been reasonably expected to speak of it and did not do so. It is then permissible for plaintiff to show by other witnesses that he did speak of the accident and injury at or near those particular times. This we think are the holdings in Houston & T. C. Ry. Co. v. Fox, 106 Tex. 317, 166 S.W. 693, and Texas Employers’ Ins. Ass’n. v. Thames, Tex.Civ.App., 236 S.W.2d 203 (W.R.), as interpreted in Skillern v. Rosen, supra. In the latter circumstances the consistent declarations appear to be admissible even after plaintiff’s claim is filed, provided there was not then, (at the time of making such declaration or claim), a motive to rebut the issue of recent fabrication. At the time, 6 or 8 hours after he had returned home, when plaintiff told his wife he had gotten hurt, there existed no charge of recent fabrication. In fact, defendant produced Dr. Oates to show that several days later, when plaintiff went to the doctor plaintiff did not mention getting hurt. This evidence was tendered upon the ground that it would have been the usual and customary thing for plaintiff to have then told his doctor, if he had gotten hurt. What Judge Hamilton said in the Skillern opinion, of the holding in the Texas Employers’ Ins. Ass’n. v. Thames, supra, is presently pertinent (359 S.W.2d p. 304):

“ * * * The notice of injury and claim in the Thames case was prepared before any motive could have existed to rebut the issue of recent fabrication raised by the failure of the plaintiff to tell the doctors-of his general injury.”

Defendant further asserts that the error, if any, of the court was.harmless for the reason that the record shows, that Mrs. Barmore’s testimony that her.husband did tell her he got hurt was not stricken and the jury could have considered, it. Ordinarily when testimony has once been admitted, motion to strike the inadmissible part should be made before, it is considered as excluded by the court. Two factors, however, persuade us that the Court, as well as the jury, must have considered that any reference made by her that her husband told her he had gotten hurt was withdrawn from consideration: The first' factor is the language of the court, “I’m going to exclude what he told her.”' After plaintiff’s wife had finished testifying and at the close of the case, a stipulation was made' by counsel that plaintiff’s wife’s testimony “would have been that he told'her that he got hurt.” If it was not cofts'i'dejred this evidence had been stricken and expunged from the record, why the need.of stipulation ?

Defendant lastly urges that the trial court’s exclusion of Mrs. Barmore’s testimony was harmless within the purview of Rule 434, Texas Rules of Civil Procedure. In this connection it is stated that plaintiff’s testimony to the effect that he told Hoke of the accident, which was not denied, served as contradiction and answer to the testimony produced by defendant. We must measure the error by the test: Did it amount to such a denial of appellant’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment? Much consideration has been given this question. Who can say what effect the tendered testimony may have had upon the jury? Would the jury have attached more weight to what plaintiff had testified if his wife had been allowed to tell that he told her he had been hurt.. Her testimony would not have-been .that he got

hurt — which was the question directly in ■contest; it .would have been proof of a secondary nature — that he told her he got hurt. Thus her testimony rested directly Upon her husband’s. The primary fact of injury must rest squarely upon plaintiff’s own testimony as there were no other witnesses present. Thus his veracity alone in the final test was at issue. His wife’s testimony, if allowed, may have been sufficient to cause the jury to have decided that he had gotten hurt. But we cannot say that it probably did cause the rendition of an improper judgment.

In answer to issue No. 3. the jury found he sustained no incapacity as a result of the injury, if any, of March 9, 1960. And in answer to issue No. 11 the jury found his incapacity, if any, was due solely to diseases, etc., wholly disassociated with his injury of March 9, 1960. These findings are not attacked. It does not appear how the excluded testimony would have had any material influence upon these findings. State v. Parrish 159 Tex. 306, 320 S.W.2d 330.

The judgment is affirmed.


author: ARCHER, Chief Justice.

text:
    RAILROAD COMMISSION of Texas et al., Appellants, v. NATIONAL TRANSPORT CORPORATION et al., Appellees.
    No. 11009.
    Court of Civil Appeals of Texas. Austin.
    Dec. 5, 1962.
    Rehearing Denied Jan. 9, 1963.
    Will Wilson, Atty. Gen., Morgan Nes-bitt, Asst. Atty. Gen., Austin, W. D. White, Dallas, James, Robinson & Starnes, Donald O. Baker, Austin, for appellants.
    Lanham & Hatchell, Austin, for appel-lees.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the 53rd District Court of Travis County which set aside in part certain orders of .appellant Railroad Commission of Texas. The action was filed by appellees National Transport Corporation and Texas Construction Service Company of Austin. The Commission’s orders granted specialized motor carrier applications by appellants Smith Transit, Inc., and Robertson Transport, Inc. to transport two hundred thirty-seven (237) specified dry bulk commodities, between all points in Texas.

, The trial was before the Court and a -judgment was for the plaintiffs, appel-lees herein, and provides:

“IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED by the Court that the order of the RAILROAD COMMISSION OF TEXAS dated September 30, 1960, under Docket No. 6950, granting the application of Robertson Transports, Inc. to amend Certificate No. 6950, BE, and the same is hereby CANCELLED, SET ASIDE and HELD FOR NAUGHT, insofar as it authorizes the transportation of ‘Lime’ and ‘Calcium Oxide’.
“IT IS FURTHER ORDERED, ADJUDGED and DECREED by the Court that the order of the RAILROAD COMMISSION OF TEXAS dated September 30, 1960, under Docket No. 8490 approving the application of Smith Transit, Inc. to amend SMC Certificate No. 8490, BE, and the same is hereby, CANCELLED, SET ASIDE and HELD FOR NAUGHT, insofar as it authorizes the transportation of ‘Lime’ and ‘Calcium Oxide’.”

Findings of fact and conclusions of law were filed.

The appeal is founded on five points and are in substance, that the Court erred in setting aside the orders of the Commission dated September 30, 1960, insofar as such orders authorize the transportation of Lime and Calcium Oxide, because it was not shown that such orders were not reasonably supported by substantial evidence, and the Court was not áuthorized to substitute its discretion for that of the Commission, and erred in finding as a fact that plaintiffs or their predecessors were, during the period of time from June through October, 1960, performing a reasonably adequate transportation for the public, because the “adequacy” of existing transportation is a fact determination to be made by the Commission, and erred in finding as a fact that plaintiffs were ready, willing and able to furnish pneumatic trailers if requested, because the ability to do so, is a determination ■ to be made by the Commission, and the Court could not substitute its own determination of the comparative ability of the parties, and there is no evidence as to plaintiffs’ ability to acquire such equipment, and the Court erred in concluding that there was not substantial evidence before the Court stip-■porting the Commission’s orders and findings set out by the Commissi’onj and that the orders do not contain sufficient findings as required, and finally that the Court erred in refusing to admit into, .evidence the Transcript of Testimony heard by the Commission for the limited purpose for which it was offered.

The appellees’ position is that there are, in fact, only three issues, to-wit:

“(1) whether the jurisdiction of the Commission was properly and sufficiently invoked to invest the Commission with authority ‘to consider, set for hearing, hear and determine’ the instant applications within the meaning of Section 5a(c) of the Motor Carrier Law (Art. 911b, V.C.S.,); if so, (2) whether the Commission’s jurisdiction to consider and determine the applications was preserved and whether the Commission’s discretion to grant the applications was exercised in accordance with the requirements of Section 5a (d) of the Motor Carrier Law, including among others the mandatory requirements that there be substantial evidence before the Commission and that the Commission’s orders contain r sufficient fact findings and (3) wheth.-■-er plaintiffs discharged their burden of showing that the Commission’s orders were not reasonably supported by substantial evidence adduced in court.”

Appellants' further say that while the issues above- stated were raised by plaintiffs’ •petition, issues,Nos. (1) and (2) are no longer really 'in the case, because of a stipulation that both applications were on forms prescribed by the Commission and met all requirements, of the law.

Appellees take the position that the Trial Court was correct in determining from the evidence before it that the orders under attack were not supported by substantial evidence, and that such orders do not contain the findings required by Section 5a(d), .Article 911b, Vernon’s Ann.Civ.St.

We believe that the Trial Court correctly entered the judgment cancelling the orders involved herein.

The Trial Court at the request of appellants filed findings of fact and conclusions of law, and to which no exception was taken.

The findings are extensive and no useful purpose can be had by copying such herein and we shall refer to such briefly.

The Court found that the plaintiffs are the owners and operators of SMC Certificates, authorizing the transportation of lime and chemically hydrated lime in bulk, in dump trucks, hopper trucks, or in covered vehicles, equipped with mechanical unloading devices from all lime kilns, and storage places in Texas to all points in Texas, and from point of origin to all job-sites in Texas including highways, roads, streets,. etcv to no greater distance than 150 miles from' point of origin, this limitation of 150 miles applies only to National Transport Corporation.

'The Court found that the defendants’ transport' Companies were the holders of certificates authorizing the transportation of commodities in bulk between various points in Texas; that Chemical Express, Inc., and Ray Smith Transport Company were each affiliated with defendant, Smith Transit, Inc., holding certificates authorizing the transportation of lime in bulk, in dump and hopper trucks between all points in Texas, except that Ray Smith Transport Company was authorized to transport limestone, lime and lime products from the plant site of Limestone Products Company, near Cleburne, Texas; that L. M. R. Corporation was affiliated with Robertson Transport, Inc., and was authorized to transport gravel, crushed limestone in bulk in truckload lots with special loading equipment from any pit, railhead, crushing plant or other source of supply to any jobsite or processing plant in Texas to movements of no greater distance than 250 miles from point of origin.

Other findings were that the plaintiffs were not called on by any shipper or receiver of lime in bulk to furnish pneumatic unloading equipment for transportation of lime or calcium oxide; had sufficient equipment to transport all lime when requested to do so, and were not operating at full capacity ; offered their service to all types of consignees in the areas in which they could operate; would furnish pneumatic equipment if requested to do so by any of the lime producing plants, of which there were five in Texas; solicited business from such plants, none of such plants requested pneumatic equipment, and that pneumatic equipment is not suitable for transportation of lime to soil stabilization projects.

The Court concluded that there was no substantial evidence before the Court supporting the orders complained of, and none supporting the Commission’s conclusion that existing services and facilities of existing carriers were inadequate at the time the orders were issued, or that public convenience would be promoted at that time by granting the applications, or that the shippers or receivers of lime had any need for additional service.

Section 6(d) of Article 911b, V.C.S., is as follows:

“The Railroad Commission is hereby-given authority to issue upon application to those persons who desire to engage in the business of transporting for hire over the highways of this Státe livestock, mohair, wool, milk, livestock feedstuff, household goods, used office furniture and equipment, oil field equipment, timber in its natural state, farm machinery and grain, ‘Specialized Motor Carrier’ certificates when it is shown by substantial evidence that there exists (1) a public necessity for such service, and that (2) public convenience will be promoted by the granting of said application.”
Section 5a(d) in part reads:
“ * * * The Commission shall have no authority to grant any application, for a certificate of convenience and necessity authorizing operation as a ‘Specialized Motor Carrier’ or any other common carrier unless it is established by substantial evidence (1) that the services and facilities of the existing carriers serving the territory or any part thereof are inadequate; (2) that there exists a public necessity for such service, and (3) the public convenience will be promoted by granting said application. The order of the Commission granting said application and the certificate issued thereunder shall be void unless the Commission shall set forth . in. its order full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers, and the public need for the proposed service.”

In Shupee v. Railroad Commission of Texas, 123 Tex. 521, 73 S.W.2d 505, the rule to be followed by the Courts in appeals from orders of the Commission is stated. The meaning and effect of the Substantial Evidence Rule is recited and set out in Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, and we will not set such out herein in the interest of space, but refer to -subsequent holdings such as:

Board of Water Engineers et al. v. Colorado River Municipal Water District, 152 Tex. 77, 254 S.W.2d 369.

There was extensive testimony given in, the trial of the case, and those-called by - the plaintiff testified generally to the effect that the existing services and equip-, ment were adequate and that no demand had been made on plaintiffs . for- service that was not met. ;> : '

Among the witnesses called by the defendants was J. W. Bettis, who testified' that he was Executive Vice President of' Robertson Transports, Inc., and President of Robertson Tank Lines, Inc., and de-r scribed what he considered’ an innovation; in the transportation of bulk commodities, which was a new trailer, a pneumatic type wherein most all dry commodities can be-handled the same as liquid,- by aeration, and a load can be drawn in and blown off, and exhibited a descriptive brochure pub- ■ lished by the manufacturers,' which the. witness testified would eliminate labor and expensive conveyor systems, and at the-requests of numerous shippers, his companies filed the applications which were granted and the orders issued which were involved in the trial. That at the time of the hearing before the Commission his company had two such trailers operating, and set out his plans of operation.

On cross examination Mr. Bettis testified that he knew the appellants had authority to transport dry bulk commodities prior to the order of September 30, 1960, and that the application was for authority to transport dry bulk commodities in pneumatic' trailers, and in other vehicles, and this would include lime or calcium oxide, and would use the type of trailers best suited for the commodity and to the receiver, and requested the Commission not to limit the use of one particular type of equipment.

There are only five producers and marketers of lime in this State, Austin White Lime Company and Round Rock White Lime Company who appeared in support of plaintiffs’ services, and testified that these services were sufficient to handle their demands for public transportation, and had not received any request for movement of lime in pneumatic trailers. United States Gypsum Company appeared in support of the applicants, but had received adequate service, and had not called on appellees to furnish pneumatic unloading equipment and had not been requested by any consignees for that type of equipment. Neither of the other two lime producers appeared, and it may not be presumed that such lime producers had need for additional service.

‘ There was no evidence of a public need for a new competitive authority for the transportation of lime or calcium oxide.

Existing carriers are entitled to transport all of the traffic in the area of their authority as long as they can do so in a reasonably adequate manner, and until it be shown by substantial evidence that the existing carriers cannot adequately handle the .traffic, there is. no basis upon which new and competing operating rights can be granted.

There is no reason shown why the applicants cannot continue to use the pneumatic type unloading trailers as they were doing with at least one at the time of hearing. .

The Trial Court did not usurp the functions of the Commission, but did upon the basis of the testimony find that the action of the Commission in granting the orders was not supported by substantial evidence, and we believe properly so.

Robertson Transports, Inc., et al. v. Transport Co. of Texas et al., Tex.Civ.App., 269 S.W.2d 472, er. ref. N.R.E.

The Trial Court did not err in refusing to admit into evidence the, transcript of testimony heard by the Railroad Commission.

The transcript was offered to show that there was substantial evidence before the Commission at the time it acted, and for this limited purpose.

The transcript of the evidence before the Commission is not admissible as such.

Railroad Commission of Texas et al. v. Rau, Tex.Civ.App., 45 S.W.2d 413, er. dism.; Miller et al. v. Tarry et al., Tex.Civ.App., 191 S.W.2d 501 er. ref.

The judgment of the Trial Court is affirmed.


author: WILSON, Justice.

text:
    O. L. WILLIAMS et ux., Appellants, v. J. W. SHANNON et al., Appellees.
    No. 4031.
    Court of Civil Appeals of Texas. Waco.
    Dec. 6, 1962.
    Rehearing Denied Jan. 10, 1963.

      W. T. Bennett, Huntsville, for appellants.
    Clyde B. Kennelly, Richmond, David B. Cofer, Jr., Bryan, Pollan & Nicholson, Elbert Pollan, Rosenberg, for appellees.
   WILSON, Justice.

Williams sued Shannon seeking reformation of a deed partitioning their jointly owned land, alleging that by mutual mistake a tract of 99 acres was included in the share of Shannon by the terms of the instrument, contrary to their actual agreement. Williams also sought cancellation of a subsequent deed from Shannon conveying land in dispute to Kennedy on the ground he was not an innocent purchaser. Shannon and Kennedy filed a cross-action in trespass to try title. The court filed findings and conclusions upon which judgment was rendered against Williams, and for cross-plaintiffs. The substance of appellants’ basic complaint is that the judgment and findings are contrary to the overwhelming preponderance of the evidence and there is no credible evidence to support them.

Material findings are summarized: In 1950 Williams and Shannon purchased 1253 acres described in four tracts. In 1952 they executed a partition deed by which approximately equal acreage was set aside to each. By provisions of this instrument Shannon was to erect a fence on his northern boundary, Williams was granted an easement over Shannon’s lands, each party was to pay one-half of the outstanding debt, and Shannon was to pay Williams $1000 “to balance the equities.” After execution of the partition deed both parties applied for and obtained from a lending agency a division of their vendor’s lien debt, and a release of lien against Shan-nons land. The description of the latter’s property in these documents included the tract in dispute as partitioned to Shannon.

The court also found that before the partition deed was executed Shannon constructed a cross-fence on the northern boundary of an intervening tract which he had leased, in order to separate the 'cattle of Williams and Shannon; that this fence was not built pursuant to partition; that it was not the same division fence provided for in the deed; and that both Williams and Shannon knew the location on the ground of the north line of this intervening tract. (Williams contended this was the division fence agreed upon, and that it was orally agreed to be his southern boundary. His position was that the intervening tract leased by Shannon was to separate the land he was to take, north of that tract, from the acreage Shannon was to .take south of it). After this fence was built the parties separated their cattle — Williams’ to the north of the fence, and Shannon’s to the south.

The court found that in the negotiations leading to the partition the parties were uncertain as to the location of the tract in controversy as related to the'north line of the intervening tract leased by Shannon, but that it was their intention that Shannon should take the tráct' in question; and the deed partitioned the land as agreed.

There is competent evidence of probative force to support the findings. The testimony of the witnesses contains numerous inconsistencies, due, doubtless, to the decade elapsing from inception of the transaction to time of trial; and the court was required to weigh, and seek to reconcile it. We are unable to say from the whole record his determination was contrary to the overwhelming preponderance of the evidence; and we conclude the material findings are supported.

Most of appellants’ additional points thereby became immaterial. We have considered all and they are overruled. Affirmed. ■ • •


text:
    James F. BURKE d/b/a Burke’s Drugs, Appellant, v. T. L. BEAN, Appellee.
    No. 6586.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 29, 1962.
    Rehearing Denied Dec. 19, 1962.
    Melvin Combs, Beaumont, for appellant.
    Sample & Walker, Beaumont, for appel-lee.
   McNEILL, Justice.

Bean had a gall bladder attack and his physician gave him a prescription for Oxa-cholin tablets. The prescription was taken March 28, 1960, to Burke’s Drug Store to be filled, and the pharmacist there, by mistake delivered Oxsoralen capsules to Bean. The doctor prescribed a pill after each meal. After Bean had taken one or two doses of the medicine he called his doctor and told him he was in much pain and needed a sedative, and the doctor prescribed relief medicine for him, which he took for about two days. In the meantime he continued to 'take the improperly filled prescription.

Bean’s brother happened to be visiting from Mississippi, and desiring to have the gall bladder prescription refilled for him, Bean went to another drug store owned and operated by C. P. Rainey. Bean took the container along that had the improper medicine in it and while he was at Rainey’s, Rainey called Burke’s Drug Store and talked to Burke. It is not clear in the record as to just what day this took place. Witnesses fixed it as between the 4th and 7th of April. (The parties stipulated that the re-fill by Burke was on the 8th). In the telephone conversation, Rainey obtained knowledge of what the original prescription called for and told Burke that the prescription as filled contained pink Oxsoralen capsules. Burke realized then that a mistake had been made. He testified that he thought Rainey had refilled the prescription but he told Rainey to have Bean come by and he would adjust the price charged. Rainey then told Bean to go to Burke’s but did not tell him a mistake in filling the prescription had been made. Bean then took the prescription to Burke’s to be refilled for his brother. He did not see Mr. Burke and neither did Burke see him. He obtained the proper refill this time from the pharmacist, but paid the same amount of $6.50 for this prescription as he had been charged for the first prescription, although the price for the proper drug would have been $2.75. This refilled prescription was turned over by Bean to his brother who returned to Mississippi a short while later.

Bean continued to suffer from the gall bladder pains in much the same severe way as he had suffered since the original attack about March 28th, but he kept on taking the original incorrectly filled prescription until April 11th, when he returned to his physician. Upon examination of the bottle of medicine the doctor told him that he had been taking the wrong medicine, whereupon Bean went to Rainey’s Drug Store and obtained the proper filling of the prescription, and then began to take the prescribed gall bladder medicine, and soon showed improvement.

The literature furnished by the manufacturer of Oxsoralen recommends that a person, after having taken these capsules for two weeks, should have a liver test run on him. A few days after learning he had taken the wrong medicine, Bean saw Dr. James Q. Blackwood, a dermatologist. Dr. Blackwood ran three such tests and found that the liver functions were within normal limits. This doctor, called by Bean, testified the Oxsoralen did Bean no good. He suggested additional liver tests at indeterminate future dates, although it was his opinion that the patient would have no future trouble as result of having taken the Oxsoralen capsules. Dr. H. E. Alexander, who testified at the request of Burke, was of the same opinion.

As a result of the incorrectly filled prescription, Bean sued Burke for damages, both actual and exemplary. In answer to issues submitted, the jury found that Ox-soralen capsules were supplied to Bean instead of Oxacholin tablets as prescribed; that Bean was injured as a result of the improper filling of the prescription; that the improper filling of the prescription was negligence and a proximate cause of plaintiff’s injuries; that he was actually damaged in the amount of $500.00.

In addition to the above issues, on the exemplary damage feature of the case, the court submitted further issues which were found in Bean’s favor, as follows: Burke intended to conceal from Bean the fact that the prescription had been improperly filled; that Burke’s failure to advise Bean of the mistake in filling the prescription constituted gross negligence. In connection with this issue the term “gross negligence” was defined as “that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.” In answer to the issue as to what amount should be awarded as exemplary damages, the jury found $2,000.00. In answer to further issues, the jury found that Bean was not contributorily negligent in not recognizing the difference between the medicine with which the prescription was first filled and that when correctly filled; nor was he negligent in failing to inquire why the refilled prescription was not the same (in appearance) as upon the first filling.

The characteristic symptoms of an acute gall bladder attack are pain between the shoulder blades, cramping pains and nausea. The Oxacholin tablets prescribed by the physician were for the purpose of aiding the gall bladder to drain and would thereby re-Heve pain. The object of giving Oxsora-len capsules is to tan the skin of the patient. The side effects of taking these sun-tan capsules are the same as those of gall bladder attacks, and in addition they will give a person a feeling of depression, nervousness and insomnia. Bean testified that he had all of these symptoms for the two weeks he took the wrong medicine, and that his feeling of nervousness and depression persisted for some time afterward. He .was also unable to work for several weeks during which time he had to employ a substitute to do his work.

No serious attack is made upon the award of actual damages, but it is urged that the award for exemplary damages is without legal basis. We do not agree. In filling prescriptions a druggist is required to use that high degree of care which a very prudent and cautious person would exercise under the same or similar circumstances in that business. Peavy v. Hardin, Tex.Civ.App., 288 S.W. 588; 28 C.J.S. Druggists § 6, p. 511. The general customer ordinarily has no definite knowledge concerning many medicines, and must rely implicitly upon the druggist, who holds himself out as one having the peculiar learning and skill, and license from the state, to fill prescriptions. He owes to his customer purchasing a prescription that highest degree of prudence, thoughtfulness, and vigilance consistent with the reasonable conduct of the business, in order that human life may not constantly be exposed to the danger flowing from the substitution of a harmful drug for a beneficial drug ordered by the customer’s physician.

Argument is stressed that Burke’s negligence was entirely passive, not positive and consequently gross negligence could not be charged to him. Burke had the duty under the circumstances of this case upon discovery of the error, to'make prompt correction thereof. That very high decree of thoughtfulness and vigilance in the original filling of the prescription placed by the law upon the druggist must also enjoin him to exercise that same vigilance and care for •his customer upon the discovery of a mistake to see that it is promptly rectified. This Burke failed to do. Bean argues that contrary to Burke’s duty in this respect, by charging the original price for the refill that was paid for the improperly filled prescription, Burke affirmatively attempted to conceal his mistake. The jury accepted this view. Undoubtedly Burke had the patient’s name and address in the city, and in addition, a telephone was listed in the name of Mrs. T. L. Bean, wife of plaintiff. No effort was made by Burke after he learned of the mistake to reach Bean and correct it, although Bean continued to take the wrong mediciné for three days thereafter, and only stopped when he went back to his physician on April 11th who told him of the mistake. The above outline of facts,, in our opinion, justified the jury in concluding that the druggist showed a conscious indifference to the rights and welfare of the plaintiff and was guilty of gross negligence. Missouri-Pacific Railway Co. v. Shuford, 72 Tex. 165, 171, 10 S.W. 408; 17 Tex.Jur.2d 245-247.

It is urged that the amount of exemplary damages allowed were excessive, because well out of proportion to the actual damages allowed. The ratio of 1 to 4, as exists in this case, has been upheld several times in this state. 17 Tex.Jur.2d 256. With respect to the amount of the damages awarded, much is left in the first instance to the discretion of the jury. Tynberg v. Cohen, 76 Tex. 409, 13 S.W. 315. We hold that this discretion was not abused. Schutz v. Morris, Tex.Civ.App., 201 S.W.2d 144.

The judgment is affirmed.


author: BELL, Chief Justice.

text:
    D. J. SMITH et ux., Appellants, v. John R. WHITEHEAD, Appellee.
    No. 14006.
    Court of Civil Appeals of Texas. Houston.
    Dec. 13, 1962.
    Rehearing Denied Jan. 10, 1963.
    Landis & Gregory, Buddy W. Gregory, Houston, for appellants.
    Banister, Boswell & O’Toole, John R. Banister, III, Houston, for appellee.
   BELL, Chief Justice.

Our opinion rendered on November 8, 1962 is hereby withdrawn and the following is, on motion for rehearing by appel-lee, substituted as the opinion of the Court.

D. J. Smith sued appellee to recover damages for injuries suffered by his wife, Lee Ethel Smith, when an automobile driven by his wife was in collision with a pickup truck driven by appellee. The jury failed to find appellee guilty of any negligence that was a proximate cause of the injury and the court entered judgment favorably to ap-pellee.

Appellants contend that the jury’s answer that appellee entered the intersection on a green light is not supported by any evidence, or, alternatively, that such answer is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong.

We have reviewed the whole record bearing on these contentions and are of the view that the jury’s answers are supported by evidence of probative force and we are unable to say that the answers are so contrary to the overwhelming weight and preponderance of the evidence as to be unjust. In fact the evidence was close on the issues and either an affirmative or negative answer would find sufficient evidence to support it, though the evidence is, in our opinion, more favorable to appellants.

Appellants next contend there was jury misconduct that was harmful to them. The misconduct is alleged to have resulted when the jurors discussed personal experiences and speculated that appellee probably did not have insurance and it would work a hardship on him to pay a judgment rendered against him.

Only one juror testified. The substance of her testimony was that from the very first of the deliberations the other jurors were of the view that appellee had the green light with him when he entered the intersection and that Mrs. Smith was proceeding on without noticing. She testified to this effect at two places in her testimony. She also testified that one juror testified Mrs. Smith didn’t need a maid, that his wife did her own housework. A woman juror said her back hurt her but she did her own work. The witness did not remember the names of the jurors who made these statements. She also testified that it was discussed that appellee was doing longshoremen’s work and could not pay any judgment. The witness stated he could if he wanted to because if he wanted to work he could make up to $300.00 per week. She knew this because she had relatives doing this type af work. She said there was some discussion back and forth that appellee probably didn’t have insurance and thus probably couldn’t pay a judgment.

We will assume the above statements were made. Before any reversible error is shown, the party asserting error must show that the misconduct was material and was of such a nature that it was reasonably calculated to cause and probably did cause injury to the complaining party. The burden is on the complaining party to show, in the light of the whole record, that injury probably resulted.

We have concluded that appellants have failed to show any probable injury.

It is difficult to say definitely, but we think the evidence shows that any acts of misconduct occurred after the jury had passed on the issues of liability. Such a conclusion is occasioned by the witness’ testimony that from the very first of the deliberations the other jurors thought appel-lee was in the right. She then talks about a juror speaking of whether his wife needed a maid and of one woman juror saying her back hurt but she was able to do her housework. This information clearly related only to damages.

The mention of appellee’s ability to pay a judgment because he probably did not have insurance could relate to the question of liability or damages. As above stated, it seems to us the discussion probably took place in connection with the discussion of the damage issue. In any event, the burden is on appellants to demonstrate probable injury and to do this they must relate the discussion to an issue or issues on which it would bear. Mrs. Baird’s Bread Co. v. Hearn, 157 Tex. 159, 300 S.W.2d 646. This burden they have failed to discharge.

The discussion here apparently related to the damage issue at a time when it seems the issues of liability had been determined. The jury assessed total damages of $1075.00. There is no complaint here by any point of error that the damages assessed were in an insufficient amount,

Appellants’ next contention is there is a conflict in the jury’s answers. In answer to Special Issue No. 3 the jury answered that appellee failed to turn his vehicle to the left as an ordinarily prudent person in the exercise of ordinary care would have done. In answer to Special Issue No. 4 the jury found such failure was not a proximate cause of the collision. Special Issue No. 8 was a damage issue. It was so worded as to inquire as to the amount of money that would reasonably compensate appellant for her injuries that were a direct and proximate result of the accident. In instructing the jury as to the elements it could consider, the court submitted mental pain and suffering, past and future, value of lost earnings to date of trial, and loss of earning capacity. In connection with each element the court inquired as to what the compensation should be for injuries, if any, directly and proximately caused by the negligence, if any, of the appellee. Appellants contend since the jury found damages they, because of the wording of Special Issue No. 8, found some negligence of appellee was a proximate cause of the collision. On the other hand, while the jury found in answer to Special Issue No. 3 that appellee was negligent, it found the act was not a proximate cause of the collision. The conflict is alleged to be between Special Issue No. 4 and Special Issue No. 8.

We overrule this point. Issue No. 4 was an issue inquiring specifically as to whether a negligent act was a proximate cause. Special Issue No. 8 was a general damage issue that did not have for its purpose specific determination of the proximate cause of some act of negligence. After the jury had answered all other issues than those on damage in a manner so as to acquit appellee of an act of negligence that was a proximate cause of the collision, the damage issues became immaterial. Garza v. San Antonio Transit Co., Tex.Civ.App., 180 S.W.2d 1006, writ ref., w. m.

Appellee s motion for rehearing is granted and the judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    Irene FOREMAN, Appellant, v. Luther GRAHAM, Jr., Appellee.
    No. 6564.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 13, 1962.
    Rehearing Denied Jan. 9, 1963.

      Johnson & Hartel, Liberty, for appellant.
    W. G. Woods, Jr., Liberty, for appellee.
   STEPHENSON, Justice.

Plaintiff brought this action for debt based upon loans made to the defendant on numerous occasions, from January 9, 1951, to October 22, 1955. None of the transactions were in writing. Plaintiff alleged the following:

“Defendant was to have the use of said money for an indefinite period of time during which he could improve his business and financial condition, which was poor at the time of the said loans, but that said money would in certainty become due, and become due only, upon Plaintiff’s express demand and notice for said repayment; that by the express terms of the said contract and agreement of the parties, and as an integral part of Plaintiff’s cause of action upon Defendant’s obligation to pay, and as a condition precedent to the right of Plaintiff to bring suit thereon against Defendant, said money loaned to Defendant by Plaintiff was not to become due until express notice and demand for the same was expressly and definitely made and served by Plaintiff upon Defendant.”

Plaintiff further alleged she first made demand for payment August 1, 1956. This suit was filed July 1, 1958. Plaintiff also alleged that she and defendant had been married and divorced, and at the time of making the loans they were dating and anticipated remarriage, and that a relationship of confidence and trust existed between them. Defendant filed and urged a special exception to plaintiff’s petition, pleading the two year statute of limitation. The trial court sustained this special exception and rendered judgment for defendant. The sole question to determine in this case is when the statute of limitation began to run.

The general rule is, when money is payable on demand it is payable immediately, and no demand is necessary to start the running of the statute of limitation. Cook’s Admr’s v. Cook, 19 Tex. 434. However, if a demand is an integral part of a cause of action, or a condition precedent to the right to sue, the statute does not begin to run until a demand is made, unless demand is waived or is unreasonably delayed. 37 Tex.Jur.2d, Sec. 59, page 180. West Texas Utilities Co. v. Ellis, Tex.Civ.App., 102 S.W.2d 234. (Reversed on other grounds).

No cases have been cited to this court passing upon the precise factual situation in this case. The parties to a contract should be permitted to make an agreement that the money loaned was not to become due until a demand was made, thereby making a demand a condition precedent to the accrual of the cause of action. Such demand must be made within a reasonable time, which depends upon the circumstances of each case, and ordinarily is a question of fact for the jury. In the absence of mitigating circumstances, a time coincident with the running of the statute will be deemed reasonable, and if the demand is not made within that period the action will be barred. Aetna Casualty & Surety Co. v. State, Tex.Civ.App., 86 S.W.2d 826; 37 Tex.Jur.2d, Sec. 61, page 183.

Plaintiff’s petition shows many of the loans were made in 1951, the first being more than five years before the date plaintiff alleged she made demand August 1, 1956. Also, some of the loans were made after August 1, 1954 which would be less than two years before the date plaintiff alleged she made demand. The trial court should apply the rules of law above set forth to determine first, whether the demand was made within a reasonable time from the date of each loan, and also whether there were mitigating circumstances to justify the delay in making the demand as applied to all loans made before August 1, 1954.

The judgment of the trial court is reversed and remanded for trial.