author: CLAUDE WILLIAMS, Justice.

text:
    Thomas Buford GILL, Appellant, v. TRANSAMERICA INSURANCE COMPANY, Appellee.
    No. 16927.
    Court of Civil Appeals of Texas. Dallas.
    June 23, 1967.
    Rehearing Denied July 28, 1967.
    Otto B. Mullinax, of Mullinax, Wells, Mauzy, Levy & Richards, Dallas, for appellant.
    Wm. N. Hamilton, of Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

■ This is a workmen’s compensation case. Alleging that he had sustained an accidental personal injury on January 15, 1965 while engaged within the course of his employment for Henry C. Beck Company in Dallas, Texas, appellant brought this action against his employer’s insurer, Transamerica Insurance Company seeking to recover statutory benefits for the disability occasioned thereby. Appellant alleged, inter alia, that “any weakness, impairment, disease or infection of any kind,” which he may have had prior to the receipt of his injury was dormant and that such injury “contributed to, aggravated and accelerated such pre-existing condition.”

Appellee insurance company, by way of defense, affirmatively alleged that any disability or loss of wage-earning capacity sustained by appellant was caused solely by “natural conditions, diseases, prior com-pensable injuries,” etc. Appellee enumerated such pre-existing conditions to be “a congenital anomaly of the spine”; “a condition known as spondylolisthesis”; “an unknown condition covering a medical classification as 4 — F for military service”; and “an undetermined condition of the spine requiring medical treatment since 1962.”

Following the presentation of voluminous testimony to a jury a special issue verdict was returned in which it was found that appellant had sustained an accidental personal injury on January IS, 1965 while in the course of his employment for Henry C. Beck Company; that he had sustained total incapacity following such injury, such incapacity beginning on February 22, 1965 and ending on March 4, 1965; that appellant did not sustain any partial incapacity following the injury; that appellee insurance company had failed and neglected to furnish proper medical aid for the treatment of the injuries and that the reasonable cost of such medical treatment was $640.95; that the prior injury sustained by appellant in 1962 did not contribute to the incapacity he had following the injury of 1965; that appellant’s incapacity was not caused solely by one or any combination of the prior injury of 1962 or “a condition known as spondylolysis.”

Based upon such verdict the trial court rendered judgment for appellant against appellee for the sum of $58.12 as compensation and the additional sum of $640.95 representing doctor and hospital bills. Appellant, contending that the judgment is wholly inadequate, brings this appeal.

Through the medium of his first four points appellant contends that his rights were prejudicially affected by the failure and refusal of the trial court to heed his objections leveled at the court’s definition of the term “injury” as contained in the main charge to the jury, and in refusing to submit his requested definition of the term “injury” which incorporated therein the element of aggravation of a pre-existing “condition”. He further contends that the court erred to his prejudice in denying his motion to further instruct the jury and to enlarge upon the definition of the term “injury” to include the element of aggravation of “all bodily infirmities” following a written request from the jury to be given a more complete definition of the word “injury”.

A proper evaluation of appellant’s complaints requires a brief statement. Appellant Grill, 52 years of age, had been employed as an operating engineer for 26 years. He had never sustained an injury to himself prior to 1962 when he sustained an injury to his back. As a result of the 1962 injury he was seen by Dr. Patterson and Dr. Driggs. These doctors differed somewhat in their diagnosis. Dr. Patterson, a neurosurgeon, testified that x-ray and myelogram studies demonstrated a condition known as “spondylolysis” and that the patient had been born with this condition in his back. Dr. Driggs, an orthopedic surgeon, testified that his examination revealed a “spon-dylolisthesis”. The testimony reveals that the difference between spondylolysis and spondylolisthesis is that in the latter case there is a degree of forward slipping of the fifth lumbar vertebra on the sacrum. Dr. Driggs testified that the condition he described was congenital, that is, present from birth, and that the injury of 1962 aggravated such pre-existing condition. He said that the man had an unstable back due to such physical impairment.

As a result of the 1962 injury Mr. Gill lost no work time except four days in the hospital. Following the injury in December 1962 until he was injured in January 1965 he had no trouble with his back. During the year preceding January 15, 1965 he worked 227 days for three different companies, and put in considerable overtime. Following his 1965 injury which involved a strain to his back he was seen by Dr. Herrick, an orthopedic specialist, who found muscle spasm in his low back together with numbness of the right thigh. He testified that his x-ray examination revealed the defect in the low back without forward slipping. Dr. Herrick concluded that appellant’s problem was secondary to his congenital defect of the spine, superimposed on the strain received while working. He recommended an operation and such operation was performed on March 5, 1965, which consisted of a spinal fusion which had the effect of permanently stiffening the backbone over three vertebrae. Dr. Herrick testified that the history of having hurt himself some six weeks before while trying' to climb down from the top of a building would be calculated to aggravate the defect or condition that he had from birth. The doctor testified that his estimate of disability following the operation would be around 15 per cent.

There was no conflict in the testimony that appellant had a pre-existing congenital condition in the lower part of his spine and that such condition could have been aggravated or accelerated by a strain such as that occasioned by him on January 15, 1965.

The trial court defined the term “injury” in his charge as follows:

“ ‘INJURY’ means damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom, or the incitement, acceleration or aggravation of any disease previously or subsequently existing by reason of such damage or harm to the physical structure of the body.”

Appellant leveled a timely objection in which he directed the court’s attention to the fact that the definition should incorporate the word or words which would give the jury the opportunity of considering aggravation of a pre-existing body condition as well as a pre-existing disease. In addition to the objection to the charge appellant tendered a requested explanatory instruction which included the element of “excitement, acceleration or aggravation of any disease or condition of the body previously or subsequently existing by reason of such injury to the body.” This requested instruction was refused and the court declined to change the definition given.

, After the jury had deliberated for some time it forwarded to the court a note as follows :

“Your Honor
“Can we have a more complete definition of the word Injury. Thanks. David L. Smith, Foreman.”

The court responded, in writing, as follows :

“LADIES AND GENTLEMEN OF THE JURY:
“The definition of injury in the charge is the legal definition. The Court can give you no further definition than that contained in the charge.
“Paul G. Peurifoy, Judge.”

Appellant filed written objections to the instruction of the court to the jury advising them that the definition contained in the charge is the law and that the court cannot enlarge upon it, and also moved the court to give to the jury an additional definition of the word “injury” including the element of “the incitement, acceleration, or aggravation of any disease, infirmity, or condition of the body previously or subsequently existing by reason of such damage or harm to the physical structure of the body.”

The court refused such additional instruction.

Having carefully considered this record we are of the opinion, and so hold, that the trial court erred in failing to heed the objections and requests timely and properly made by appellant. We are also convinced that the appellant has maintained his burden of showing that the error of the court reasonably led to the rendition of an improper verdict in this case. Rule 434, Texas Rules of Civil Procedure.

The Workmen’s Compensation Act, referred to by some as social legislation, was purposely designed to compensate an employee for incapacity flowing from an accidental personal injury sustained within the scope of his employment. One of the fundamental precepts of this law is that the liability arising thereunder cannot be defeated by showing that the injured employee was not a well person at the time of the injury. The employer accepts the employee as he is when he enters the employment, and it is no defense to a claim for compensation that the injury would not have been as great if the employee had been in a healthy or more perfect physical condition. Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356 (1937); Southern Underwriters v. Parker, 129 S.W.2d 738 (Tex.Civ.App., Beaumont 1939); Texas Employers’ Ins. Ass’n v. Parr, 30 S.W.2d 305 (Tex.Comm’n App., 1930); Liberty Mutual Ins. Co. v. Murphy, 205 S.W.2d 398 (Tex.Civ.App., Fort Worth 1947).

Not only may an injured employee recover the statutory benefits flowing from the injury itself but in the event such injury aggravates or accelerates the effect of preexisting disease or bodily infirmity that renders him more susceptible to such an injury he may not be denied recovery for such incapacity. Texas Indemnity Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026 (1940); Texas Employers’ Ins. Ass’n v. Parr, supra; Texas Employers’ Ins. Ass’n v. Watkins, 135 S.W.2d 296 (Tex.Civ.App., Fort Worth 1939) ; Zellerbach v. Associated Employers Lloyds, 200 S.W.2d 653 (Tex Civ.App., Galveston 1947); Garcia v. Texas Indemnity Ins. Co., 146 Tex. 413, 209 S.W.2d 333 (1948); Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280 (1942); Sowell v. Travelers Ins. Co., 363 S.W.2d 350 (Tex.Civ.App., Beaumont 1962); 62 Tex.Jur.2d, § 109, pp. 684-685 and cases therein collated.

Art. 8306, § 20, Vernon’s Ann.Civ.St., sets forth the statutory definition of “injury” which is ordinarily given to the jury. However, in view of the unbroken line of authorities authorizing recovery for aggravation or acceleration of pre-existing diseases or conditions the courts have uniformly held that in such cases the definition of “injury” is not limited to the statutory language. Thus it has been repeatedly asserted that where the pleadings and evidence present the question of aggravation or acceleration of pre-existing disease or bodily conditions the trial court may, in addition to the use of the statutory language of the definition of “injury” add thereto such phrases as “[t]his damage or harm to the physical structure of the body may include incitement, acceleration, or aggravation of any disease or condition previously or subsequently existing.” McCartney v. Aetna Casualty & Surety Co., 362 S.W.2d 838 (Tex.Sup.1962); Southern Underwriters v. Boswell, supra; Maston v. Texas Employers’ Ins. Ass’n, 160 Tex. 439, 331 S.W.2d 907 (1960); City of Austin v. Cook, 333 S.W.2d 398 (Tex.Civ.App., Austin 1960), reversed on other grounds, Cook v. City of Austin, 161 Tex. 294, 340 S.W.2d 482 (Tex.Sup.1960); Travelers Ins. Co. v. Vargas, 399 S.W.2d 173 (Tex.Civ.App., Eastland 1966, writ ref’d n. r. e.); 63 Tex.Jur.2d, § 488, pp. 581-582.

The principle of recovery for aggravation or acceleration is not limited to pre-existing diseases, as such are generally known and accepted by the ordinary layman. It also encompasses the idea of acceleration or aggravation of pre-existing natural causes of bodily infirmities or conditions. Various decisions refer to such pre-existing physical conditions as “bodily infirmity”, United States Fidelity & Guaranty Co. v. Herzik, 359 S.W.2d 914 (Tex.Civ.App., Houston 1962, writ ref’d n. r. e.) ; “preexisting idiopathic condition”, Garcia v. Texas Indemnity Ins. Co., 146 Tex. 413, 209 S.W.2d 333 (1948); “predisposing bodily infirmity”, Traders & General Ins. Co. v. Rooth, 268 S.W.2d 539 (Tex.Civ.App., Waco 1954, writ ref’d n. r. e.); “preexisting condition”, Sisk v. Glens Falls Indemnity Co., 310 S.W.2d 118 (Tex.Civ.App., Houston 1958, writ ref’d n. r. e.), 66 A.L.R.2d 1; “heart condition”, Hartford Accident & Indemnity Co. v. Gant, 346 S.W.2d 359 (Tex.Civ.App., Dallas 1961).

In Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280 (1942), the injured employee was suffering from a pre-existing' condition known as arthritis. The trial court, in addition to the statutory definition of “injury” instructed the jury that they may consider “the extent of the aggravation, if any, of any pre-existing diseases or bodily defects existing at the time of such injury, if any.” The Supreme Court approved such instruction. It is important to note that the court drew a distinction between “pre-existing disease” and “bodily defects”.

So, it is quite obvious that in this case the trial court recognized the judicial enlargement of the statutory definition of “injury” and attempted to do so but in so doing it limited the theory of aggravation to that of pre-existing disease whereas the pleadings and the evidence clearly raise the issue of a pre-existing bodily infirmity or a congenital condition existing from birth. It is quite obvious that the ordinary layman when confronted with the term “disease” would associate such with a condition caused by bacteria, infection or virus. It is entirely probable that this ordinary conception of “disease” would not carry through or be naturally associated with a birth defect of the spine. This fact made it imperative that the trial court further enlarge upon the definition and include the element of aggravation as was done in many of the illustrated cases cited above.

That this did actually lead to confusion in the minds of the jury in this case is reflected by their act in sending the court a written communication in which they requested an enlargement of the definition of “injury”. We think the trial court should have honored appellant’s request to give more guidance to the jury as was authorized by law.

When we review the entire charge of the court, and all of the special issues submitted, the error becomes more apparent. Whereas the court, in his definition of “injury” limited the jury to acceleration or aggravation of any “disease previously or subsequently existing”, such term to be considered by the jury in answering the basic issues essential to appellant’s recovery, the court, in submitting the defensive issue, No. 18 expressly pinpointed for the jury’s consideration “a condition known as spondylolysis.” Thus it is entirely probable that the jury was caused to believe that in considering appellant’s basic issues they were confined to acceleration or aggravation of a prior “disease” whereas in their consideration of the defensive issue of “sole cause” they might consider the specific thing which existed in appellant’s body and upon which there was voluminous evidence of acceleration or aggravation.

Appellant’s points 1 through 4 are sustained.

Appellant’s remaining points complain of matters such as reference by appellee’s counsel to a prior settlement of a claim and also the sufficiency of the evidence to support certain of the jury’s answers. These matters need not be discussed in view of our disposition of appellant’s first four points which results in another trial of the case.

The judgment of the trial court is reversed and remanded.

Reversed and remanded.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Roosevelt MOURNING et al., Appellants, v. CROWN STEVEDORING COMPANY et al., Appellees.
    No. 4627.
    Court of Civil Appeals of Texas. Waco.
    July 20, 1967.
    Brown & Cecil, Owen W. Cecil, John Parker Eaton, Baker, Botts, Shepherd and

      Coates, George H. Kolb, Houston1, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Dixie Smith, Houston, for ap-pellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Mourning and intervenor Travelers Insurance Company, from summary judgment that plaintiff take nothing in a personal injury suit against defendants Crown Stevedoring Company and P. D. Marchessini Company.

Plaintiff, an employee of McLeon Industries, was injured on July 12, 1963. He filed a claim for workmen’s compensation and judgment was entered for him against the compensation carrier, Travelers Insurance Company, in January, 1964. On March 11, 1964, plaintiff filed suit against defendant Crown, alleging injury caused by Crown’s negligence. Travelers intervened for subrogation of plaintiff’s rights to the extent of $1450. paid plaintiff in the compensation case.

Plaintiff’s counsel was informed by the Secretary of State that Crown’s agent for service was George J. Salter, Jr., with officer in the Shell Building, Houston. Citation was issued by the clerk on March 13, 1964. On April 1, 1964 the Harris County Sheriff’s department informed plaintiff’s counsel that no such person had an office in the Shell Building; that Crown was not listed on the building directory, and that neither Crown nor Salter was listed in the telephone or city directories. Plaintiff’s counsel later learned that Crown “and its agent and/or successor, P. D. Marchessini Company were located in the State of New York.”

Plaintiff filed an amended petition on September 20, 1966, alleging his cause of action against Crown and Marchessini, and secured service on Crown on October 22, 1966 by service of process on George J. Salter, Jr. in Houston, and on Marchessini by service on the Secretary of State.

On November 4, 1966, defendants Crown and Marchessini filed Motion for Summary Judgment that plaintiff take nothing, asserting plaintiff’s suit against defendants was barred by the 2 year Statute of Limitations.

The trial court entered summary judgment that plaintiff take nothing.

Plaintiff and intervenor appeal, contending the trial court erred:

1) In rendering summary judgment for Crown because a material fact question existed as to lack of diligence by plaintiff in obtaining service of process on Crown.

2) In rendering summary judgment for Marchessini because a material fact question existed on the question of absence from the State of Marchessini, and such absence would toll the running of limitations.

3) In rendering summary judgment for both defendants since the motion and notice of hearing were never served on intervenor.

Contention 1 is that a material fact issue exists as to whether plaintiffs were guilty of lack of diligence in obtaining service on Crown. Plaintiff was injured in July, 1963; his judgment for compensation was in January, 1964. The two year statute of limitation commenced to run against plaintiff in January, 1964. Judice v. Sumner Sollitt, CCA, (n.r.e.) 346 S.W.2d 135. Plaintiff filed suit against Crown on March 11, 1964, and caused citation to be issued for service on George J. Salter, Jr., but service was not effected. Service was later effected on Salter in Houston on October 22,1966.

Prosecution of a suit with dili-igence, including effecting of service of citation on defendant, is necessary to toll the statutes of limitations. Reed v. Reed, 158 Tex. 298, 311 S.W.2d 628; Pollok v. McMullen Oil & Royalty Co., CCA (nwh) 383 S.W.2d 837; Patrick v. Callan, CCA (nwh) 353 S.W.2d 40.

The record reflects a period of some 2 years and 7 months before service was effected on Crown. No diligence on the part of plaintiff has been shown in trying to effect service during this period. No material fact issue is here raised as to whether plaintiff was guilty of a lack of diligence in obtaining service on Crown. Contention 1 is overrruled.

Contention 2 asserts a fact question exists as to whether defendant Marchessini was absent from the State (which if true would toll the statute of limitations). Defendant Marchessini was a non-resident of Texas, and so far as this record reflects was never a resident of Texas. Article 5537, Vernon’s Ann.Tex.Civ.St. (providing absence from the State shall not be counted as a part of limitation time) has no application to non-residents. Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226; Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876. Plaintiff’s compensation case against Intervenor was concluded in January, 1964; and suit was filed against Marchessini in September, 1966. Such suit was barred by the 2 year statute of limitations. Summary judgment that plaintiff take nothing against Mar-chessini was proper. Contention 2 is overruled.

Contention -3 complains of the failure of defendants to give intervenor notice of the motion for summary judgment and of the setting thereof. Interven- or’s rights were subrogated to plaintiff’s rights, hence defendants were not required to give intervenor notice of their motion for summary judgment. Moreover, intervenor gave no notice of appeal and filed no cost bond. This court lacks jurisdiction to consider intervenor’s complaints. Donald v. John Vinson, Inc., (CCA, Er. Ref.) 344 S.W.2d 751; Bellmead State Bank v. Campbell, CCA (nwh), 386 S.W.2d 205. Contention 3 is overruled.

Affirmed.


author: DIXON, Chief Justice.

text:
    Homer GALLOP, Appellant, v. SEAGOVILLE INVESTMENTS, INC., et al., Appellees.
    No. 16922.
    Court of Civil Appeals of Texas. Dallas.
    June 16, 1967.
    Rehearing Denied July 21, 1967.

      Bill Jones, of McKool, McKool & Jones, Dallas, for appellant.
    B. W. Cruce, Jr., Mesquite, John H. McElhaney, Dallas (on appeal only), for appellees.
   DIXON, Chief Justice.

Appellant Homer Gallop filed suit against appellees Seagoville Investments Company, Inc. and M. D. Reeves individually for specific performance of an option contract for the purchase for the sum of $16,000 of real estate owned by the Investment Company. M. D. Reeves is the President of the Investment Company and is owner of all except two shares of the corporation’s stock.

Appellant Gallop’s direct dealings were all with David King, who is alleged to have been the agent of both appellees. David King is President of Seagoville State Bank. M. D. Reeves is the owner of Seagoville State Bank.

Both appellant and appellees filed motions for summary judgment. The motion of appellant was overruled. That of ap-pellees was sustained. Nevertheless the judgment recites that the court heard evidence. And the record contains findings of fact and conclusions of law by the court.

The option contract, dated December 31, 1964, was for a term of 90 days, but upon payment of an additional consideration was extended for 60 days.

The contract contains this provision:

“This option may be exercised by ‘Buyer’ by giving written notice to Owner of intention to exercise same within the option period and shall thereupon become a binding contract for the sale of said land.”

The above quoted provision is the focal point of the controversy. Appellant gave verbal notice of his exercising of the option. He did not give written notice. Nevertheless the papers were sent to Dallas Title Company, whose closing representative was King W. Hopkins. Some delay ensued, apparently due to the necessity of obtaining a survey of the property. Meantime M. D. Reeves sent word that he had decided not to proceed with the sale.

Appellant in his brief contends (1) that David King had authority to act as agent for appellees in handling the deal; (2) that appellant was not required to give written notice of his exercising his option — the contract merely states he “may” give written notice, not that he “must” give written notice; and (3) even if the contract is construed to mean that he must give written notice, that provision was waived by the sellers who accepted the verbal notice.

Appellees in their brief contend (1) that David King did not have authority to act as agent for appellees; (2) that the quoted provision required written notice; and (3) there was no evidence of ratification, waiver or estoppel and no evidence that David King had apparent authority to act for appellees.

The record includes the deposition of David King. He concedes that he handled the deal with appellant in behalf of appellees as far as his authority permitted, but says that he was merely acting as a “go between” in the negotiations between the parties and did not have authority to accept or reject the verbal notice, or to waive the written notice. Since King was an agent for appellees his testimony concerning the facts of his authority is admissible, Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54 (1958), but insofar as he attempted to say that he did not have authority to waive written notice his testimony is an expression of an opinion or conclusion which is not conclusive on the question.

The record also includes copies of purported depositions of appellant Gallop, ap-pellee Reeves, and Hopkins, Dallas Title Company’s closing representative. Unfortunately none of these three copies is signed by the witnesses or notarized by the reporter taking the depositions. The copy of Hopkins’ deposition does not even bear the certificate of the reporter.

It is undisputed that the court took into consideration these three purported copies of depositions in reaching his decision with reference to the motions for summary judgment. Appellees also refer to them in their argument in support of their summary judgment. We cannot consider these purported copies of depositions in reaching our decision on this appeal. Tian v. Warren, 271 S.W.2d 453 (Tex.Civ.App., San Antonio 1954, writ ref’d n. r. e.); H. Rouw Co. v. Thompson, 297 S.W.2d 241 (Tex.Civ.App., San Antonio 1956, no writ); Baylor v. Ramos, 290 S.W.2d 273 (Tex.Civ.App., San Antonio 1956, writ ref’d n. r. e.); National Bankers Life Ins. Co. v. Rosson, 400 S.W.2d 366 (Tex.Civ.App., Dallas 1966, writ ref’d n. r. e.). In the absence of a proper record we are unable to say that the court properly found that there were no fact questions in this case in regard to waiver, ratification, estoppel as to appellees and as to apparent authority on the part of David King. In summary judgment cases doubts must be resolved against the finding that there are no material fact issues. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.Sup.1965).

Findings of fact and conclusions of law have no place in summary judgment cases. State v. Easley, 404 S.W.2d 296 (Tex.Sup.1966). The only issue is whether there is any material fact issue.

In his second and third points of error appellant asserts error on the part of the court in holding that there were no fact issues in regard to David King s authority as agent and in regard to the question whether appellant Gallop ever exercised his rights under the option agreement. We sustain these points.

The judgment of the trial court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: COLLINGS, Justice.

text:
    Ralph W. GOSSETT et al., Appellants, v. The STATE of Texas, Appellee.
    No. 4156.
    Court of Civil Appeals of Texas. Eastland.
    July 21, 1967.
    Rehearing Denied Aug. 11, 1967.

      W. H. Eyssen, Jr., Big Spring, H. P. Ku-cera, Dallas, of Counsel, Gossett, Randle, McCloud & Hand, Dallas, for appellants.
    Guilford Jones, Dee Jon Davis, County Atty., Big Spring, for appellee.
   COLLINGS, Justice.

The State of Texas and Howard County, in December of 1965, instituted condemnation proceedings, filing with the County Judge of Howard County, a statement in condemnation praying for the appointment of Commissioners to assess damages for the taking of approximately 2.907 acres of land referred to as tract 13 belonging to Ralph W. Gossett, James D. Gossett and Elmer Tarbox, vesting title thereto in The State of Texas, for highway purposes, to be paid for by the County of Howard. Commissioners were appointed and after due notice an award of $114,503.00 was made to defendants for the taking. Thereafter the County of Howard made a deposit of the amount of the award in the registry of the court, asserting that plaintiffs were thereupon' entitled to immediate possession of said property. The defendants withdrew the deposit from the registry of the court. They also filed their exceptions to the award and appealed to the County Court. The trial in the County Court was before a jury and based upon the verdict, judgment was rendered for the defendants for $103,860.11, of which $94,971.69 was payment for land taken and $8,888.42 was for damages to the remainder of defendants’ land and improvements. It was further adjudged and decreed that the County of Howard have judgment against each of the defendants, jointly and severally, for $10,642.89, the amount they had received in excess of the judgment, with 6% interest thereon from January 20, 1966. The defendants have appealed.

In numerous points, appellants contend that the property in question, which is in the City limits of Big Spring, is not subject to condemnation by Howard County in the absence of allegations and proof of consent on the part of the City. They assert that the County Court had no jurisdiction to proceed under Article 3266 Vernon’s Ann.Tex.Civ.St. because Article 1175, Subdivision 19, V.A.T.C.S. vests exclusive dominion and control of public streets in the City of Big Spring; that if Howard County was attempting to proceed under Article 6674n or 6674n-2 V.A.T.C.S. there is no allegation or proof that the City of Big Spring had consented to such proceeding prior to the filing of the petition with the County Judge requesting the appointment of special commissioners; that if the State is attempting to proceed under Article 6674n there is no allegation or proof that Howard County refused to acquire the property necessary for the widening and improvement of the intersection of Gregg and Marcy Drive within the City of Big Spring. These points are overruled.

Plaintiffs’ statement in condemnation was filed on December 28, 1965, with the County Judge of Howard County by the State of Texas and Howard County acting by and through the Commissioners Court of Howard County. The statement contained all the statutory allegations required for condemnation of land in such cases. It recited that the State was “constructing, laying out, and reconstructing a highway” as a part of the State highway system in Howard County and that the survey ran across and upon the land in question which the Highway Commission and the Howard County Commissioners Court had found and determined to be needed for that purpose and that the county had been unable to agree with the owners of upon the value of the land needed or the damages. On January 28, 1966, after due notice, the Special Commissioners appointed by the County Judge convened and after hearing awarded damages to appellants in the sum of $114,503.00. The plaintiffs desired to take immediate possession of the property and Howard County deposited in the registry of the court its check for the amount of the award. The defendants appealed alleging “that the award made by the Special Commissioners does not represent the true value of the property to be taken or the damages accruing to defendants by reason of said proposed acquisition but that in fact such value so found by said Commissioners was grossly and totally inadequate.” Appellants withdrew from the registry of the court the $114,503.00 deposited by Howard County. At the trial, appellants entered into a written stipulation admitting that appellee had “complied with all the prerequisites under the law so that this court has jurisdiction of this cause — and that the only remaining issues in this cause are: (a) the reasonable market value of the land and improvements taken; (b) damages to the remainder of defendants’ property.”

The record reveals no complaint by appellants in the hearing before the Special Commissioners of the illegality of the taking. There was no showing that the City of Big Spring failed to give its consent. As heretofore noted appellants accepted the benefits of the award by withdrawing the funds deposited. Appellants invoked the jurisdiction of the County Court by appealing thereto and by pleadings filed therein. Appellants did not at the trial make known to the County Court their claim that the County lacked the power to condemn. The record does not present facts which show an illegal taking. We cannot presume the existence of such facts. Under the facts of this record appellants cannot question the power of the county to take their land. County of Jim Wells v. Cook, 410 S.W.2d 325, (Tex.Civ.App.1966). It is well established that the owner of land who accepts the amount awarded by special commissioners in a condemnation proceeding cannot thereafter question the power of the con-demnor to take the land. City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477 (1897); State v. Jackson, 388 S.W.2d 924, (Sup.Ct.1965); Luby v. City of Dallas, 396 S.W.2d 192, (Tex.Civ.App.1965, writ ref. n. r. e.).

Our Supreme Court in State v. Jackson, supra, where the State failed to prove facts said to be essential to the jurisdiction of the trial court, stated the law in such cases as follows:

“By accepting the award of the Special Commissioners the Respondent is precluded from contesting the State’s right to take the property. Article 1, § 17 of the Texas Constitution, Vernon’s Ann. St. in part provides that, ‘No person’s property shall be taken * * * for or applied to public use without adequate compensation being made, unless by the consent of such person; * * *.’ After an award has been made, and the money deposited in the registry of the Court and the landowner has withdrawn the same, he cannot thereafter contend that the taking was unlawful. In legal contemplation, he has consented to such taking and will not be permitted to retain his compensation and at the same time assert that the condemning authority had no right to take his property under the eminent domain power. This point was settled by this Court’s decision in City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477, 44 S.W. 476 (1897). See also McConnico v. Texas Power & Light Company, 335 S.W.2d 397 (Tex.Civ.App.1960, wr. ref. n.r.e.), Sacred Gardens of Memory, Inc. v. State, 334 S.W.2d 220 (Tex.Civ.App.1960, no wr. hist.), 22 Tex.Jur.2d 380, Eminent Domain, § 266 — Waiver of right to object to appropriation.”

Appellants contend that the court erred in rendering judgment for appellee because the County Judge was disqualified to appoint commissioners to assess damages and to preside at the trial. They assert that it affirmatively appears from the record that Howard County is the real party at interest herein and that Judge Porter is the presiding officer of the Commissioners Court and also the County Judge. This point is overruled. There is no showing and we do not understand appellants to contend that the County Judge had any interest in the case other than as a taxpayer and as a member of the Commissioners Court. It is held that such remote and problematical interests do not constitute disqualification. The well established authority in Texas is to the effect that under the facts here shown a County Judge is not disqualified to preside over condemnation proceedings. McInnis v. Brown County Water Improvement District No. 1, 41 S.W.2d 741. (Tex.Civ.App.1931, writ refused); Angier v. Balser, 48 S.W.2d 668 (Tex.Civ.App.1932, writ refused); Thompson v. State, 165 S.W.2d 131, (Tex.Civ.App.1942, no writ history); Smith v. Elliott, 149 S.W.2d 1067 (Tex.Civ.App.1941); Wagner v. State, 217 S.W.2d 463 . (Tex.Civ.App.1948, writ ref. n.r.e.).

This cause was number 3043 on the docket of the County Court and involved damages for the taking of a portion of a tract of land owned by appellants in equal one-third undivided interests, said land being designated and referred to herein as tract 13. The portion of tract 13 taken amounted to 2.907 acres. The remainder of said tract was 0.583 acres. The tract lies south of Marcy Drive in the City of Big Spring. In numerous points appellants contend that the court erred in refusing to consolidate this cause with cause number 3044 on the docket of the County Court which involves the taking of a portion of a tract of land referred to as tract 14. Tract 14 joins and lies immediately South of tract number 13. The portion of tract 14 sought to be taken is .062 acres fronting on Gregg Street and the remainder is 2.338 acres. Appellants also contend that the court erred in refusing to permit them to introduce evidence showing that they were owners of not only tracts 13 and 14 but also owners of a 12 acre tract immediately South of tract number 14 referred to by appellants as tract number 12. There is ho taking from tract 12. Appellants contend that the three tracts should be considered as a unit and damages assessed to the remainder of the combined tracts suffered by the taking of portions of tracts 13 and 14 and construction of the proposed highway improvements. The three tracts constitute a total of about 18 acres at the intersection of Marcy Drive and Gregg Street in the City of Big Spring and considered as a whole have a frontage of approximately 800 feet along Marcy Drive and about 354 feet along Gregg Street which is also U.S. Highway 87. As heretofore noted, the land being taken in this suit is the approximately three acres out of tract 13 lying along and South of Marcy Drive.

We overrule appellants’ point contending that the court erred in refusing to consolidate this cause (No. 3043) on the docket of the County Court with Cause No. 3044. We also overrule appellants’ points contending that the court erred in refusing to permit the introduction of evidence and to submit their claim for damages to tracts 12, 13 and 14 as a whole under the unity of use doctrine. Appellants’ theory in this connection is that the three parcels of land, tracts 12, 13 and 14, were planned to be used by them in the future for a single purpose, that is, as a shopping center, and that the tracts should be considered as a unit in determining the damages. It is undisputed that the land is not presently so used, but that appellants do plan such a future use thereof.

Appellants are not entitled to the consolidation of the suits and the submission of the consolidated claim involving tracts 12, 13 and 14 under the unity of use doctrine. To justify such a submission and recovery it is required that there be, not only a present or contemplated future unity of use of the land involved but also, a unity of ownership. The following cases indicate the requirement of such unity of ownership. McLennan County v. Stanford, 350 S.W.2d 208, (Tex.Civ.App.1961, no writ history); Calvert v. City of Denton, 375 S.W.2d 522 (Tex.Civ.App.1964, writ ref. n.r.e.); George West Independent School District v. Bartlett, Tex.Civ.App., 211 S.W.2d 1010 (Tex.Civ.App., 1948, writ dismissed). In 4 Nichols, Eminent Domain, page 733, Section 13.31(2) it is stated as follows.

“It is, of course, essential to constitute a single parcel that it be owned in its entirety by one owner or one set of owners.”

In 29A C.J.S. Eminent Domain § 140, p. 595 it is stated that:

“The parcels claimed as a single tract must be owned by the same party, or parties * *

There is no unity of ownership of the lands in question as is required in such cases. Tract 12 was acquired in 1957 and is still owned by Scenic Gardens, Inc. The stockholders of that corporation are Elmer Tarbox, Ralph Gossett and James Gossett. The Gossetts are brothers and Elmer Tarbox is a brother-in-law of Ralph Gossett. As heretofore noted the record indicates that these appellants have at all material times contemplated and planned the building of a shopping center on the land in question. However, a corporation is an entity separate and apart from its stockholders and ownership of stock in a corporation having title to property is not the same as individual ownership by such stockholders. Tract 14 was originally acquired and owned equally by Elmer Tar-box, Ralph Gossett and James Gossett. At the time of the taking of a portion of tract 13, however, tract 14 was owned by Elmer Tarbox and James Gossett, and Ralph Gos-sett owned no interest therein. Tract 13 was acquired and is still owned by all three appellants. Thus there was not the required unity of ownership between tracts 13 and 14 or tracts 12, 13 and 14 to allow recovery by appellants under the unity of use doctrine. Jonas v. State, 19 Wis.2d 638, 121 N.W.2d 235, 95 A.L.R.2d 880 (1963), by the Supreme Court of Wisconsin, illustrates a similar instance of lack of unity of ownership. That case involved the taking of a portion of a tract owned by Mr. and Mrs. Jonas, individually, where an adjoining tract was owned by Jonas & Sons, Inc., a corporation in which the stock was held by Mr. Jonas and his two sons. The court overruled the contention of the property owners that there was a unity of use between the two parcels and that they were entitled to damages to the parcel owned by the corporation. In so holding the court stated the general rule that:

“ * * * in order to allow severance damages where a portion of a parcel or parcels of land claimed as a single unit is taken by condemnation, there must be unity of ownership between the part taken and the remaining part.”

City of Williamstown v. Wallace, 316 S.W.2d 373 (Ky.1958) was a case in which a husband owned a tract of land from which a portion was taken for a city reservoir and the wife owned an adjoining tract, both of which tracts were used and operated by the husband as a unit. It was held that the husband was not entitled to damages for the severance of the remainder of his tract from the wife’s tract in view of the separate ownership of the tracts. McIntyre v. Board of County Commissioners, 168 Kan. 115, 211 P.2d 59, is also a case where a husband and wife owned adjoining tracts as their separate property and a recovery was refused under the unity of use doctrine because of separate ownership of the tracts involved. See also 95 A.L.R.2d pages 894, 895 and 896; 6 A.L.R.2d pg. 1205 ; 29A C.J.S. Eminent Domain § 140, pp. 589, 590 and 591.

In answer to special issues it was found by the jury that (1) the market value of the 2.907 acre portion of tract 13 condemned for highway purposes considered as severed land was 750 per square foot; (2) that the market value of the .583 acre remainder out of appellants’ tract 13 immediately before the taking of the 2.907 acre portion was 750 per square foot and (3) that the market value of the .583 acre remainder of such tract immediately after the taking of the condemned portion was 40$ per square foot. Appellants urge that the above findings are against the great weight and preponderance of the: evidence.

The statement of facts is voluminous,, containing more than 500 pages, and most of the testimony in the record concerns-the question of the market value of appellants’ property at times material and the damages sustained by reason of the taking of a portion thereof. We have considered the entire record in passing upon points concerning the great weight and preponderance of the evidence. Briefly summarized, the portion of the record material to the question of market value of the land in question consists of opinion testimony of expert witnesses called by ap-pellee and appellants in support of their respective positions. The witnesses called by appellants testified that the cash market value per square foot of tract 13 at the time of the condemnation was $2.50, $1.95 to $2.10, $1.50 and $1.50. One of the appellants also testified that in his opinion the market value of the tract at the time of the condemnation was $2.50, and that the value of the remainder of such tract after the taking was 2$‡ per square foot. Other witnesses for appellants testified that the remainder of tract 13 after the taking had little or no value. The two witnesses called by appellee testified that the value per square foot of tract 13 at the time of the condemnation was 6()‡ and 55<¡¡, and that the value of the remaining portion after the taking was 45{⅝ per square foot. All of the witnesses for appellants and appellee were examined, cross examined, and testified at great length concerning the basis of their opinions. Among the matters considered and stated as the basis of such opinions were a close inspection of the land involved, the status of the frontage on Gregg Street and Marcy Drive, the highest and best use of the land at times material, the problem of access, and a study of comparable sales.

As a basis for their contention that the finding in answer to special issue number 1 is against the preponderance of the evidence appellants urge, in addition to the testimony above referred to, the fact that the witnesses for appellee who testified that appellants’ property was worth 60‡ and 55¾⅛ per square foot respectively admitted that they had previously been employed by Howard County to make an appraisal of the property in question and in the vicinity, and further admitted that they had placed a value on a piece of property designated as the Brown property, triangular in shape, consisting of approximately one-half acre which is immediately across the street from appellants’ property at $2.25 and $2.08 per square foot, respectively. It is noted that according to the answers to issues 2 and 3 the remainder of defendants’ tract 13 was damaged 35⅜ per square foot. Appellants contend that this is against the great weight and preponderance of the evidence because the evidence shows that the remaining portion of tract 13 will be a long narrow strip of land 33 feet deep along Marcy Drive at the east end and 40 feet at the west end, with a limited use under zoning regulations on Gregg Street, and because the Marcy Drive frontage is so shallow that most of the property is not suitable for any economical use whatever.

Appellants’ points on the great weight and preponderance of the evidence are overruled. The value of the land as found by the jury was different from that stated by the testimony of any of the witnesses. The findings of the jury were, however, supported by ample evidence and are not subject to appellants’ complaint. The fact that the market values found by the jury were closer to the market values testified to by appellee’s witnesses than to the values asserted by appellants’ more numerous witnesses does not require a reversal on the ground that the findings are against the great weight and preponderance of the evidence. Where there is testimony supporting the finding of the jury a judgment based thereon determining compensation or damages for the taking of land will not be reversed merely because there is a preponderance of the evidence adverse to the finding. 22 Tex.Jur.2d p. 443. Housing Authority of City of Dallas v. Shambry, 252 S.W.2d 963, (Tex.Civ.App.1952, n.r.e.); City of Lubbock v. Thiel, 352 S.W.2d 799 (Tex.Civ.App.1961, n.r.e.); Sabine River Authority v. Crabb, 372 S.W.2d 575, (Tex.Civ.App.1963, no writ hist.); Tuttle v. State, 381 S.W.2d 330 (Tex.Civ.App.1964, n.r.e.). The general rule here applicable is stated in 24 Tex.Jur.2d pages 42 and 46 as follows:

“Opinion testimony does not establish any material fact as a matter of law. It is not conclusive, but merely raises an issue of fact to be submitted to the jury, who, in determining the facts, are not bound by the opinions of the witnesses. It is, in fact, the duty of the jury to analyze the opinion and determine the weight to be accorded it. And the weight to be given even expert testimony is for the jury to determine. The jury may accept or reject all or any part of the testimony of experts, at their option. And since the testimony of lay witnesses is usually admissible for purposes of rebutting the testimony of experts, the trier of fact may believe lay testimony that is in conflict with expert testimony, rather than the expert testimony.
The value of an opinion will depend on a number of considerations, including the existence of the facts on which it is predicated, the degree of learning or experience possessed by the witness, the positiveness with which the testimony was given, and whether the witness was interested in the proceeding. Testimony that merely embodies an opinion may also be tested, as to weight, by the other circumstances of the case.”

As heretofore noted appellee’s witness Elliott testified that the value of tract 13 at the time of the taking in 1966 was 55⅜⅛ per square foot. Appellants sought to impeach Elliott by offering a letter written by him in 1963 concerning the value of a tract of land of which tract 13 was a part in which Elliott placed a value on such larger tract of 600 per square foot. The point is overruled. The letter by Elliott referred to a different tract than the one here under consideration although tract 13 was included in the larger tract there appraised. Elliott testified concerning the 1963 appraisal of such larger tract at 60$ per square foot. He stated his opinion and the reasons therefor, and that the value of tract 13 at the time of the taking in 1966 was 550 per square foot. The jury found the value of tract 13 in 1966 to be in excess of the value placed thereon by Elliott in 1966 and in 1963. No reversible error is presented in this point.

In appellants’ 20th point it is contended that the court erred in refusing to permit appellants’ witness Burns to testify as to what he considered comparable sales because he could not testify that the consideration of such sales was all in cash. The assignment of error in the motion for new trial upon which this point is based is as follows:

“The Court erred in rendering judgment for the Plaintiffs in this cause against the Defendants by .reason of the rulings against the defendants on objections and exceptions not specifically contained in this Motion which said rulings on objections to testimony and argument of Counsel appear in the Statement of Facts.”

Any error presented or preserved for consideration under this point is harmless. No reversible error is shown.

In appellants’ 19th point it is contended that the court erred in awarding interest from January 20, 1966 on the excess of the Commissioners’ award over what the jury awarded, asserting that the award of interest from that date is erroneous, as a matter of law, and interest on such excess should be limited to the date of the judgment, which is September 14, 1966. This point is well taken. The judgment is reformed so that interest on such excess begins to run from the date of the judgment. As so reformed the judgment is affirmed.


author: DENTON, Chief Justice.

text:
    FIRST BANKERS INSURANCE COMPANY, Appellant, v. Mary Alma LOCKWOOD et vir, Appellees.
    No. 7733.
    Court of Civil Appeals of Texas. Amarillo.
    June 26, 1967.
    Stigall & Maxfield, Dallas, John F. Maxfield, Dallas, of counsel, for appellant.
    Kirby & Ratliff, Littlefield, Louis M. Ratliff, Jr., Littlefield, of counsel, for ap-pellees.
   DENTON, Chief Justice.

Suit was filed by appellees, Mary Alma Lockwood and husband against First Bankers Insurance Company to recover hospital and medical benefits under an insurance policy. The trial court, without a jury, rendered judgment for the appellees for such benefits, statutory penalty and attorneys’ fees.

Appellant’s sole point of error is the alleged error of the trial court in rendering a judgment against it without a benefit of a jury since appellant made a seasonable and timely demand for a jury. Appellee brought this suit for benefits under the insurance contract on July 15, 1966. Appellant filed its original answer on August 8, 1966 and took the oral deposition of appellees’ treating doctor on August 27 following. Shortly after September 1, the case was set on the non-jury docket for Tuesday, October 4. When and by what means this setting was made cannot be determined from the record. On Friday, September 23, appellant’s attorney mailed from Dallas a demand for a jury and enclosed a $5.00 jury fee addressed to the Clerk of the Court. He simultaneously mailed an amended answer in this cause. The answer was filed on Saturday, September 24, while the clerk’s record shows the payment of the jury fee was not noted on the docket until Monday, September 26. A copy of the September 23 letter was mailed to appellees’ attorney. On September 24, appellees’ attorney acknowledged receipt of this letter, and stated the jury demand was being contested on the ground “the jury fee was not paid within a reasonable time before the date set for trial of the case on the non-jury docket.” This letter further advised appellant’s counsel the trial court had set a hearing “on the matter of the payment of the jury fee for Tuesday, October 4, 1966, at 9:30 a.m.”. For reasons not apparent from the record, both the hearing on the jury demand and the hearing on the merits were held on October 7.

Although Article 1, Section 15 of the Constitution of Texas, Vernon’s Ann. St., provides: “The right of trial by jury shall remain inviolate”; such a right is not absolute in civil cases. It is subject to the compliance with certain procedural rules set out in Rule 216, Texas Rules of Civil Procedure. This rule permits a jury trial if application therefor is made in the proper court and the specified fee “be deposited by the applicant with the clerk to the use of the county on or before the date set for trial of the cause on the non-jury docket, but not less than ten days in advance. The clerk shall promptly enter a notation of the payment of such fee upon the court’s docket sheet.”

In the instant case the jury fee was “deposited” with the clerk on September 24. It was received on that dace along with appellant’s amended answer. The clerk promptly filed the latter instrument. Ap-pellees’ attorney had knowledge of such demand and deposit on the same day, and unquestionably the trial court was so informed, else he could not have, on that date, set a hearing for October 4, relative to ap-pellees’ contest of appellant’s jury demand. Obviously, the clerk did not promptly “enter a notation of the payment of such fee” in accordance with Rule 216. September 24, being ten days prior to the date the case was set, was not “less than ten days in advance” of the date the case was set for trial on the non-jury docket. We therefore conclude the jury demand was timely made.

In spite of the mandatory wording of Rule 216, courts have, because of the importance of the right of trial by jury under our State Constitution, consistently construed the rule to be discretionary. Aronoff v. Texas Turnpike Authority (Tex.Civ.App.) 299 S.W.2d 342. Lebman v. Sullivan (Tex.Civ.App.) 198 S.W.2d 280, (Ref. N.R.E.). Allen v. Plummer 71 Tex. 546, 9 S.W. 672. A jury demand made “not less than ten days in advance” of the date the case is set for trial is presumed to have been made within a reasonable time. Jerrell v. Jerrell (Tex.Civ.App.) 409 S.W.2d 885. This record contains no evidence of when a jury was available; nor was there a showing a jury trial would operate to injure the adverse party; nor that a jury trial would disrupt or materially interfere with the court’s docket.

Having timely demanded a jury and deposited the correct jury fee with the proper officer, appellant’s right to a trial by jury became fixed. Barker v. Kidd (Tex.Civ.App.) 357 S.W.2d 490. The trial court’s disregard of appellant’s jury demand requires a reversal of the judgment and remand of the cause. Meyer v. Henery (Tex.Civ.App.) 400 S.W.2d 933. Jerrell v. Jerrell (supra).

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


text:
    Vernon DRUMMOND and Randolph R. Gillum, Appellants, v. Douglas P. HODGES, Appellee.
    No. 16905.
    Court of Civil Appeals of Texas. Dallas.
    May 26, 1967.
    Rehearing Denied July 21, 1967.

      Timothy E. Kelley and George C. Chapman, of Thompson, Knight, Simmons & Bullion, Dallas, for appellants.
    Frank R. Jewell, Dallas, for appellee.
   DIXON, Chief Justice.

This suit was filed by appellee Hodges against Doctors Drummond and Gillum, appellants, of Mesquite, Texas, for medical malpractice. Judgment for $100,000 was rendered in favor of appellee based on a jury verdict.

Appellants are osteopathic physicians who with two other doctors were partners practicing as The Doctors’ Clinic of Mesquite. The surgery which is the subject of this controversy took place in Mesquite General Hospital, a private institution where both appellants practice. Dr. Drum-mond is a general practitioner, not a surgeon. Dr. Gillum is a physician and surgeon and also was administrator of the hospital.

As to both Dr. Drummond and Dr. Gil-lum, the jury made material findings which in substance were as follows: (1) at the time Hodges consulted Dr. Drummond and at the time he later consulted Dr. Gillum there existed an . infected périrectal abscess adjacent to the anal opening of Hodges’ body; (2) each of the doctors failed to obtain an adequate history of Hodges’ physical condition and past medical treatment; (3) each of the doctors failed to make post-surgical inspections of the surgical site to determine the condition thereof; and each of the above failures was negligence and a proximate cause of Hodges’ injuries.

As to Dr. Gillum the jury made additional findings as follows: (1) the doctor was negligent in failing to limit his surgery to the excising and draining of the external thrombotic hemorrhoid and the pimples or abscess, which was a proximate cause; (2) the hemorrhoid operation as performed by the doctor was a proximate cause of appellee’s injuries; (3) the doctor undertook to perform a hemorrhoid operation without Hodges’ authorization.

As to Hodges the jury found that his action in leaving Mesquite General Hospital in the manner he did on December 17, 1964 did not constitute negligence.

EVIDENCE

Appellants base their appeal on thirty-four points of alleged error. The record evidence is voluminous, but appellants’ points require a careful and detailed study of the evidence.

1. Hodges’ Testimony.

(a) Prior to the present operation Hodges had undergone a great deal of medical treatment and surgery — nearly all of it in connection with his intestinal tract and rectal and anal areas.

In 1954 he was operated on in Arkansas for appendicitis. At that time he also had a peptic ulcer and hemorrhaging from his rectum. He was in the hospital about fifteen days during which time he was given medication and blood transfusions.

Hodges then went to California where he stayed and worked about ten months. While in California he had a perirectal abscess lanced. He was hospitalized for two or three days.

In 1955 he had an attack of colitis. Again he had rectal hemorrhaging and was in the hospital and had medication and blood transfusions.

In 1956 he came to Dallas and obtained employment at Chance Vought as an electrician after passing a physical examination. While in Dallas he was injured in an automobile accident in which the cartilage in his left knee was torn and his left wrist broken. Also he had another attack of colitis for which he was again admitted to the hospital for about fifteen days.

In 1958 he went to San Angelo, Texas, where he held several jobs. He testified that he had no physical problems there.

During a period beginning in 1959 he suffered attacks of colitis which came on once a year, usually in the spring of the year.

In 1960 he went to Louisiana where he had a recurrence of perirectal abscess. He again went to the hospital where the abscess was lanced. At that time he had another attack of colitis. He was in the hospital ten days and was again given blood transfusions.

In 1963 he had an attack of colitis and was in the hospital for thirty-one days after a serious operation.

Hodges testified that except for a short recovery period after each operation he was healthy and strong between operations. He held several jobs which required heavy manual labor. He was active in outdoor sports. He participated in motorcycle races in which he often rode up hills over rough ground. Frequently he went fishing with a number of friends and engaged in other outdoor activities. He had spells of frequent bowel movements but was able to control them. This testimony wás corroborated by several witnesses who had worked with and been with Hodges on several jobs and on social occasions.

(b) In 1964 there occurred the operation which is the subject of this suit. In December 1964 he suffered pain which he says he recognized as coming from a peri-rectal abscess — this was the third time he had suffered from a perirectal abscess. At the time he was employed at the Ford Motor Company, where his work had been satisfactory. After ten days of pain he went to Mesquite General Hospital. The receptionist told him he could see Dr. Drummond. He filled out and signed some forms.

He told Dr. Drummond he had an abscess and wanted it lanced. Dr. Drummond examined him by observation only and said, “Looks like you have hemorrhoid trouble too.” He told Dr. Drummond he didn’t know anything about hemorrhoids and didn’t want to do anything about it. Dr. Drummond said they would lance the abscess next day.

Next day Hodges entered the hospital. He signed some more forms. He was given medicine to alleviate pain.

Dr. Gillum performed the operation. Hodges testified that he had not been examined by any doctor since Dr. Drummond examined him the day before. Nothing was said about a hemorrhoid operation. For three days following the operation he repeatedly asked for a doctor to come see him but none came.

He phoned to Mrs. Durgin, a trained nurse whose home was in Mesquite. She and her husband were personal friends of Hodges. Mrs. Durgin came to see him. They decided not to wait any longer for a doctor to examine him. They left Mesquite General Hospital without saying anything to the doctors or hospital attendants and went to Mesquite Memorial Hospital emergency ward. Dr. Pirrung, a medical doctor, saw him there, but would not admit him to the hospital. Hodges says that Dr. Pir-rung told him what had been done to him in the operation by Dr. Gillum. (This is not consistent with the testimony of Dr. Pir-rung who said that Hodges gave him a history of hemorrhoidectomy by Dr. Gil-lum.) He then went to 'the Durgin home.

The Durgins phoned Dr. L. K. Raynor, a personal friend, a medical doctor who practiced in Graham, Texas, but at the time was visiting in Mesquite. Dr. Raynor examined Hodges and recommended hospitalization. They drove to Graham and Hodges entered, the hospital at Graham, five days after the operation at Mesquite. Hodges remained at the Graham hospital from December 18 or 19,1964 until January 10,1965.

In describing the effects of the operation by Dr. Gillum, Hodges testified that he couldn’t control bowel movements which occurred about every fifteen minutes. They had finally slowed down to one every hour and a half. He has not been able to obtain steady employment.

2. Dr. Raynor’s Testimony.

Dr. Raynor, a medical doctor and surgeon practicing in Graham, Texas, was the only medical witness offered by Hodges. He corroborated Hodges’ and Mrs. Durgin’s testimony as to the occasion of his meeting Hodges in Mesquite and the trip to Graham where Hodges was admitted to the hospital. The trip from Mesquite to Graham was difficult due to Hodges’ pain and diarrhea.

The abscess had not been lanced, so Dr, Raynor lanced it. Plodges was an abnormal man due to the fact he had previously had his entire colon removed and was sensitive to any rectal surgery.

The type of surgery done on Hodges at Mesquite increased risks of complications by scarring and infection of anus-rectal musculature, which caused loss of sphincter tone. The sphincter muscle controls bowel movements and, if weakened, lessened control results. When Hodges left the Graham Hospital the infection was gone but the diarrhea continued.

In answer to a - hypothetical question Dr. Raynor testified that a reasonably prudent doctor would not have performed such extensive hemorrhoid surgery under the circumstances because (1) infection from abscess was present and (2) thrombus hemorrhoid can be handled by a simple incision and drainage.

In a written “Physician’s Report, Release to Work” signed by Dr. Raynor on April 20, 1965 there are these notations:

“Original Diagnosis: Infected hemor-rhoidectomy with persistent diarrhea.
“Complications: Loss of rectal sphincter control with persistent diarrhea.
“Final diagnosis: Persistent diarrhea following infected radial hemorrhoidec-tomy.”

3. Dr. Vernon Drummond’s Testimony.

Dr. Drummond, one of the appellants, testified that when he first saw Hodges the latter was complaining of intense pain. He gave the doctor a history of ulcerative colitis, attacks of diarrhea, and perirectal abscess. Dr. Drummond could examine Hodges only by observation because the rectal area was too sensitive to bear touching. No perirectal abscess was visible. He did see what looked like a small boil. He recommended hospitalization.

Dr. Drummond informed Dr. Gillum of his interview with Hodges. Next day Dr. Gillum gave Hodges a sigmoidoscope examination, which consists of inserting a tube into the rectum with a small light at the end of the tube so that the interior of the rectum is illuminated for observation. Dr. Drummond was present but did not participate in the operation. He heard Dr. Gillum say that he saw no evidence of active ulcerative colitis, but the thrombotic hemorrhoid should come out.

On December 17th, two days after the operation, Dr. Drummond was asked to see Hodges. At the time he was in the emergency room and was finishing up his activity there so he could go see Hodges. That was the only time he was asked to see Hodges after the operation. Before he could get away from the emergency room he saw Hodges and someone with him going out the door. He never saw Hodges again.

4. Dr. Randolph Gillum’s Testimony.

Dr. Gillum, an osteopathic physician, is engaged in general surgery. He saw Hodges at Dr. Drummond’s request. Upon examination he found a large external hemorrhoid and two small pimples in the outside anal area. Dr. Gillum testified that he told Hodges the hemorrhoid should come out if no active ulcerative colitis was found. Hodges told him to go ahead and do whatever was necessary. When Dr. Gillum sought to obtain a more complete history of the patient’s ailments, Hodges cut him short and told him to ask Dr. Drummond. The sigmoidoscope examination showed no active ulcerative colitis. There was no perirectal abscess. It was his best judgment that the hemorrhoid should come out. He did the operation. He “button-holed” the two little pimples — that is, he simply cut small circles around them and lifted them out.

Dr. Gillum says he saw Hodges that evening after the operation and each day thereafter until Hodges left the hospital. Hodges was making a normal recovery.

Dr. Gillum read from his “progress notes” for December 17, 1964 a memorandum as follows :

“Was advised by charge nurse that patient left hospital without dismissal. Treatment is incomplete and may suffer complications as a result of this action.”

5. Testimony of Dr. John G. Martin

Dr. Martin, a medical doctor, operated on Hodges for colitis at Methodist Hospital in Dallas in 1963. Hodges gave him a long history of colitis and other illnesses. Sig-moidoscopic examination showed need to operate. Nearly all of Hodges’ colon and sigmoid colon were removed. Only part of the colon was left.

Dr. Martin did not at that time perform a permanent ileostomy — that is, he did not close the anal opening and make a new opening in the side of Hodges’ body for the expulsion or drainage of fecal matter.

Following the above operation Hodges was having two or three bowel movements per day if he stayed on his diet, and that situation was reasonably expected to continue in the future unless he had a recurrence of his ulcerative colitis. Hodges had ulcerative colitis in the segment left after the operation, but the doctor hoped that could be controlled by Azulfidine and a diet so that Hodges could “kind of half way lead a normal life.”

Dr. Martin further testified as follows concerning the 1963 colitis operation:

“Q Doctor, based on your knowledge and experience in the field of general surgery, do you have an opinion as to the probable prognosis of Mr. Hodges, in view of what you know about him and what operation you performed?
“A This patient would almost certainly have future trouble with the distal segment of the large intestine. And, as a matter of fact, we felt from our examination that he had a small amount of involvement of this at the time we did our surgery.
“Q What sort of trouble would you expect him to have?
“A Simply a worsening of the ulcera-tive colitis involving the distal segment that was left.
“Q Doctor, in reasonable probability, do you think that based upon what you know about him and your operation, that he will require further surgery?
“A I — I would venture to say that this gentleman, as I stated in my consultation the first time I saw him, will eventually lose the distal rectum and anus and have a permanent ileostomy.
“Q Well, what is an ileostomy?
“A An ileostomy is an artificial opening through the abdominal wall and the ileum is the last part — the last segment— of the small intestine.
“Q I see. Now, doctor, your surgery, as I understand it, removed the entire colon, essentially.
“A Yes.
“Q What sort of bowel movements would you expect Mr. Hodges to have subsequent to your surgery and as a result of the removal of the colon?
“A Since the colon is one of the main organs for reabsorbing water from the liquid food, I would expect him to have at least soft to liquid stools.
“Q Well—
“A Eventually, the segment of colon that is left, after a colon resection, can re-educate itself, so-to-speak, so as to absorb increasing amounts, but most of the time ■ this never gets to the point where they have a naturally — a normal consistency bowel movement.”

The hospital records of Methodist Hospital include the written record of the operation performed on Hodges by Dr. Martin on March 1,4,1963:

“Proposed Operation: Total Colec-tomy.
“Operation: (1) Fulgention of Divs in sigmoid; (2) Total colectomy & ileo-proctostomy”.

6. Testimony of Dr. John Pirrung.

Dr. Pirrung is a medical doctor who on December 17, 1964 was on duty in the emergency room at Mesquite Memorial Hospital in Mesquite. It was there that Hodges went after leaving Mesquite General Hospital. Dr. Pirrung examined Hodges but did not admit him to the hospital because the appearance of the wound “appeared to be the normal condition for a postoperative hemorrhoidectomy and fistulectomy.” When asked whether an automobile trip to Graham, Texas would have a good or bad effect on Hodges, Dr. Pirrung replied that “in post operative surgery of this nature we do instruct our patients that they are to rest quietly at home. They’re not to become involved in any activity for approximately seven to ten days after the operation. * * * Prolonged irritation of this area certainly isn’t going to help it.”

Other Testimony.

A witness who occupied the same room with Hodges at Mesquite General Hospital testified that he did not see any doctors come into the room to see Hodges during the three days Hodges was in the hospital. However, there was testimony that this witness was under heavy sedation, was given medicine to make him sleep and that he was absent from the room at times.

Hospital Records.

The hospital records of Mesquite General Hospital, Mesquite Memorial Hospital, Methodist Hospital, Graham General Hospital and Ford Motor Company medical office pertaining to Hodges were introduced into evidence.

The records of the Mesquite General Hospital contain a filled in authorization form signed by Hodges as follows:

“I hereby give my consent for the sigmoidoscopic internal and external hemorrhoidectomy and I.N.D. abscess. Whatever diagnostic procedures are— and/or operations may be deemed advisable at the discretion of the surgeon, together with whatever anesthesia is necessary.”

Mrs. Whitlock, nurse in charge, testified that the authorization form was filled out when Hodges signed it, she saw him sign it, and she herself then signed it as witness.

Hodges admitted that the form bore his signature, but says that he didn’t see anything on the form when he signed it, and didn’t know what it was.

OPINION

In numerous points on appeal appellants attack the submission of Special Issues Nos. 1, 5, 6, 7, 14, 15, 16, 17, 21, 22, 23, 30, 31, 32, 33, 34, 35, 36, and 39, because there was no evidence to support their submission, and, further, the court erred in not sustaining appellants’ motions for instructed verdict and for judgment non obstante veredicto.

Among the grounds relied on by appellants in support of the above contentions are the following: (1) expert testimony is essential in medical malpractice cases except where the injury is so plain as to be within the common knowledge of laymen, Henderson v. Mason, 386 S.W.2d 879 (Tex.Civ.App., El Paso 1964, no writ); and (2) such expert testimony must come from a doctor of the same school of medicine as that of the defendant, Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1 (1949). However, appellants concede that the second of the above holdings has been qualified to the extent that doctors of different schools may testify in malpractice cases: (1) where the particular subject of inquiry is common to and equally recognized and developed in both schools of practice; and (2) where the subject of inquiry relates to the manner of use of electrical or mechanical applicances which are of common use in both schools of practice. Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1953).

Appellants argue that appellee’s only expert witness was Dr. Raynor, a medical doctor (allopath) whose testimony was not competent against appellants who are osteopaths. We do not agree. There was testimony that the methods and technique of the two schools in surgery of the type involved here are substantially the same. It was also brought out that doctors of the school of osteopathy study and practice surgery in accordance with methods laid down in many textbooks written by medical doctors. To obtain a license to practice doctors of the two schools must take the same State examination. The testimony also shows that Dr. Gillum has attended the allopathic Mayo Clinic in Rochester, Minnesota for study and observation of surgery cases.

Dr. Raynor’s testimony is weak. He did not see Hodges until three days after the operation in question. He was not in position to know of his own knowledge what the condition of Hodges was at the time Dr. Gillum performed the operation three days earlier. The testimony of doctors offered by appellants was quite favorable to appellants. But there was some testimony from appellants’ doctors elicited in answer to hypothetical questions on cross-examination, which testimony, though also weak, probably amounts to more than a scintilla of evidence as to the wisdom of operating under the circumstances. We overrule the above'points as far as they assert that there was no evidence to support submission of the above issues, with the exception of Special Issue No. 36.

We agree with appellants that there was no evidence to support submission of Special Issue No. 36, which inquired whether Dr. Gillum undertook to perform a hemorrhoid operation without Hodges’ consent. It is undisputed that Hodges signed a written authorization for the operation. There is no pleading and no evidence of fraud, accident, mistake, undue influence or mental incapacity in connection with the signing of the authorization. Hodges merely says that he didn’t see anything on several papers when he signed them. We sustain appellants’ point of error No. 25.

In their points on appeal Nos. 9, 10, 15, 16, 18, 19, 21, 23, 24 and 26 appellants assert that it was error for the court to enter judgment based on the jury’s answers to Special Issues Nos. 7, 16, 23, 32, 34, 35 and 39 because of the insufficiency of the evidence to support said answers. Each of the above issues inquired whether an alleged act of negligence on the part of appellants was a proximate cause of Hodges’ injuries. In each instance the jury answered in the affirmative. As differentiated from a “no evidence” point we take each of the above points to assert that the answer of the jury as to causation was so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, “ ‘No Evidence’ or ‘Insufficient Evidence’ Points of Error”, 38 Tex.L.R. 361.

It is undisputed that appellee Hodges has had a long and painful medical history including a peptic ulcer, perirectal abscesses, frequent attacks of colitis and diarrhea long before he was under the care of appellants. He had undergone numerous operations prior to the operation by Dr. Gillum in 1964. Nearly all of his colon and sigmoid colon had been removed in an operation by Dr. Martin in 1963 in an effort to enable him to lead “a half-way normal life.” But the prognosis by Dr. Martin, a medical doctor, made at that time was that Hodges would eventually have to undergo a complete ileostomy—that is, his normal anal opening would have to be closed because of his inability .to control his loose bowel movements and a new opening made in the side of his body for drainage purposes.

The testimony of Dr. Pirrung, a medical doctor, was that when he saw Hodges two days after the operation by Dr. Gillum the operative wound seemed normal so he refused to admit Hodges to the Mesquite Memorial Hospital. Dr. Pir-rung also testified that rest and very little activity for seven or ten days was advisable following such an operation. Nevertheless, Hodges, following only two days after an operation for hemorrhoids rode in an automobile from Mesquite, Texas to Graham, Texas. We take a judicial notice that this was a trip of more than 100 miles. Griffin v. Duty, 286 S.W.2d 229 (Tex.Civ.App., Galveston 1956, no writ). After considering all the evidence we cannot escape the conclusion that the answers of the jury that the acts and omissions of appellants were each a proximate cause of appellee’s injuries áre so contrary to the overwhelming weight of the evidence as to be manifestly wrong. On that ground appellants’ points Nos. 9, 10, IS, 16, 18, 19, 21, 23, 24 and 26 are sustained.

Appellants present other points which we have considered and which are hereby overruled.

The judgment of the trial court is reversed and this cause is remanded to the trial court for another trial.

Reversed and remanded.

ON REHEARING

There is evidence that appellee Hodges signed the written instrument quoted in our original opinion whereby he authorized the sigmoidoscopic internal and external hemorrhoidectomy. Hodges does not deny that he signed the instrument. He admits he signed a number of papers, but that he “didn’t see anything on them.” As we pointed out in our original opinion there was no pleading and no evidence of fraud, accident, mistake, undue influence or mental incapacity in connection with the signing of the quoted written instrument. Such being the case we cannot give any probative effect to his statement that he didn’t see anything on the papers he signed, or his statement that he did not authorize the operation for hemorrhoidectomy though the statements were admitted without objection. Patton v. Crews, 264 S.W.2d 467 (Tex.Civ.App., Fort Worth 1954, writ ref’d n. r. e.); Texarkana & Ft. S. Ry. Co. v. Brass, 260 S.W. 828, 833 (Tex.Comm’n App.1924, judgment adopted); So. Surety Co. v. Nalle & Co., 242 S.W. 197, 201 (Tex. Comm’n App.1922, holding approved); John E. Morrison Co. v. Riley, 198 S.W. 1031, 1033 (Tex.Civ.App., Fort Worth 1917, no writ); Henry et al v. Phillips, 105 Tex. 459, 151 S.W. 533, 538 (1912); 23 Tex.Jur.2d 504.

Dr. Raynor was the only medical witness offered by appellee Hodges. The doctor’s testimony included the following:

“Q. Did the area of the hemorrhoid surgery in any way involve this abscess you found?
“A. Only by proximity to it. It didn’t go to the abscess itself. The abscess had not been opened, but still it was in what you would consider contaminated area.
“Q. Did you find any connection between the condition — the infectious condition of the abscess?
“A. Only in that operating near the abscess would make it prone to become infected.”
“Q. All right. Is there any doubt, doctor — any reason you could see why a physician or anyone looking at this rectal area of Mr. Hodges some four days before you saw him, couldn’t have seen the presence of this infection?
“A. I would think they could have; yes.”
“Q. Doctor, by doing the extensive surgery that was done, as you found in Mr. Hodges, did this in any way increase the risks of complications to his rectal area?
“A. Yes.
“Q. In what ways? -
“A. By the scarring that followed and the infection involving the anus-rectal musculature.”
“Q. At the time you saw Mr. Hodges out at the Durgin residence, was there much deep involvement of tissues at that time, sir?
“A. Not with scarring up to that point. Scarring takes a little longer than four days, but the infection was present.”
“Q. Why did that diarrhea persist?
“A. That’s a two-fold thing that you haven’t covered completely. He had a scarring of the anus, which caused the loss of sphincter tone, but this was being aggravated by the pre-existing condition, which flared up, which was his previous surgery. In other words, this was not a normal man.” (Emphasis ours.)
“Q. Doctor, assuming that this man had had surgery where the hemorrhoids had been removed, as they were in this man’s case, wouldn’t he have been inviting infection by leaving the hospital, putting on his clothes, going out and driving around in a car, having doctors examine him, and then getting in his clothes again and driving in a car to Graham, Texas? Wouldn’t he be inviting infection?
“A. I wouldn’t go so far as to say that.
“Q. Wouldn’t he be more likely to get infection if he did that than if he stayed in the hospital?
“A. It was my understanding he had just been discharged very shortly before that.”
“Q. Well, if he was infected, as you say he was, and in great pain so that you couldn’t touch him, as you say he was, wouldn’t it have been better for him, regardless of where you were practicing, to get him into Baylor?
“A. It wasn’t that urgent, sir.” (Emphasis ours.)
“Q. So, anyway, the things that we have on record here do not indicate any infectious process, do they?
“A. You’re referring only to the blood count.
“Q. No, I’m referring to the blood count and the temperature.
“A. He had extreme pain, required sitz baths, extensive narcotics, even much beyond the normal hemorrhoidectomy.
“Q. Yes, but the only two — and if you can find any other obj ective things in this record, besides your observation, that show infection, I wish you would point it out to me.
“A. He required daily dressings of his abscess.”
“Q. Okay. Now, doctor, are you— you saw this patient first late in the evening of December 17th, 1964?
“A. I believe that’s right.
“Q. Now, are you telling this Court and Jury that you, as a doctor, know, or in reasonable probability know that four days prior to that — December 14th, in the morning or afternoon, of 1964 — that this man had an abscess that was nearly as big as when you saw it?
“A. History is also important. He had an abscess.
“Q. ‘History’ — you mean what he told you.
“A. Yes. That is taken along with the size of the abscess and the duration. His knowledge of previous abscesses. I believe he had had two lanced over a number of years, and being an inch and a half or two inches from the anus was a pretty obvious thing to him.”

We have again studied the record in this case and must adhere to our original opinion: the answers of the jury to issues in regard to proximate cause are so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong.

The motion for rehearing is overruled.

      . The issues in substance were as follows:
      1. Did Hodges have a perirectal abscess when he consulted Dr. Drum-mond?
      5. Did Dr. Drummond fail to obtain an adequate history of Hodges’ physical condition and past medical treatment?
      6 and 7. Was above failure negligence and proximate cause?
      14. Did Dr. Drummond fail to make post surgical inspections?
      15 and 16. Was above failure negligence and proximate cause?
      17. Did there exist a perirectal abscess at the time Hodges consulted Dr. Gillum ?
      21. Did Dr. Gillum fail to obtain an adequate medical history prior to surgery?
      22 and 23. Was above failure negligence and proximate cause?
      30. Did Dr. Gillum fail to make post surgical inspections?
      31 and 32. Was above failure negligence and proximate cause?
      33. Was failure of Dr. Gillum to limit the surgery to the excising and draining of external thrombotic hemorrhoid and the pimples or abscess negligence?
      34. Was above negligence proximate cause ?
      35. Was the hemorrhoid operation a proximate cause?
      36. Did Dr. Gillum undertake to perform a hemorrhoid operation without Hodges’ permission?
      39. This was the damage issue.
      The jury answered all the above issues favorably to appellee Hodges.
      The answer to No. 39 was $100,000.
      All other issues were answered favorably to appellants.


author: STEPHENSON, Justice. HIGHTOWER, Chief Justice.

text:
    TEXAS STATE OPTICAL, INC., Appellant, v. Neal H. BARBEE, Appellee.
    No. 6883.
    Court of Civil Appeals of Texas. Beaumont.
    June 15, 1967.
    King, Sharfstein & Rienstra, Beaumont, for appellant.
    Orgain, Bell & Tucker, Beaumont, Paul P. Regnier, Houston, for appellee.
   STEPHENSON, Justice.

This is an action for damages based upon both negligence and breach of warranty. Plaintiff alleged that his eyes were damaged because defendant improperly fitted him with contact lenses. Trial was by jury and judgment was rendered for plaintiff upon jury findings that defendant breached the implied warranty that such contact lenses were reasonably fit for the use intended. The parties will be referred to here as they were in the trial court.

The jury findings in this case are not easily reconciled. It was found: That the contact lenses furnished by defendant to plaintiff, during the year 1959, were not reasonably fit for use upon the surface of plaintiff’s eyes, and this caused or contributed to cause injury or damage to the plaintiff’s eyes, and was a proximate cause of his injuries. That defendant represented to plaintiff that any contact lenses fitted by it would not be injurious to his eyes, upon which he relied, but that defendant did not fail to fulfill such representation. That the lenses furnished plaintiff by defendant did not properly fit the curvature of his eyes, which was negligence, but not a proximate cause of plaintiff’s injuries. That plaintiff failed to keep such lenses clean, which was negligence but not a proximate cause of his injuries. That plaintiff did not fail to follow the wearing instructions given him ^ by defendant. That $10,000.00 would compensate plaintiff for the damage sustained by him as a result of the use of the contact lenses furnished him by defendant.

Defendant .has a point of error that the trial court should have disregarded the finding of the jury as to the implied warranty and should have rendered judgment for defendant because the evidence shows as a matter of law that defendant was furnishing a professional service and not a mere chattel. It is argued that neither the law as to implied contractual warranty nor the doctrine of implied warranty because of public policy as expressed by the Supreme Court of Texas in Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479, has application to the facts of this present case. The plaintiff is seeking to hold the defendant liable under the alternate theory of breach of implied warranty that contact lenses sold plaintiff were reasonably fit for the use intended. The jury having found against plaintiff on the theory of breach of the express warranty to the same effect, by finding that even though such express warranty was made that defendant did not fail to fulfill such representation. The jury also having found against plaintiff on the malpractice theory by finding that even though defendant did not properly fit the curvature of plaintiff’s eyes, and that such was negligence, that such failure was not a proximate cause of plaintiff’s injuries.

As far as we can discover this is a case of first impression. We have been cited no cases in which this precise question has been raised. In all of the cases cited to us in support of the contention made by plaintiff only a completed product was involved, and none of the cases dealt with both a professional service and a product. There is one out-of-state case which indirectly passes upon this point. In Cox v. Cartwright, 96 Ohio App. 245, 121 N.E.2d 673 (1953), suit was brought against a dentist on the ground that the partial plate furnished plaintiff and fit into her mouth did not fit and therefore was not fit for the purpose for which it was made and sold to her. The court held that the action was barred by the one year statute of limitation applying to “malpractice” and not the six year statute of limitation applying to contracts not in writing, express or implied. Plaintiff contended that her action was one for breach of contract and breach of implied warranty of fitness of the plate for which it was made and sold. The court wrote in its opinion that the practice of dentistry is regulated by statute, and high standards of qualification govern the licensing of the practitioner. It was stated that when the dentist contracted with his patient to extract her teeth and to provide her with a denture, he was engaged in the practice of dentistry, and if he failed to exercise the average degree of skill, care and diligence, exercised by members of the same profession, he was guilty of the tort of malpractice. One significant statement in this opinion was that only a strained view of the professional relationship between the dentist and his patient could class the dentist in the category of a salesman of false teeth.

Likewise, the practice of optometry is a profession in the State of Texas governed by statute. Articles 4552 through 4566 — 1, Vernon’s Ann.Civ.St. The optometrist in this case, employed by defendant, was duly licensed to practice in this state, and was engaged in such practice while examining plaintiff’s eyes, prescribing the lenses, and then fitting plaintiff with such lenses. The only testimony in this record as to the unfitness of the lenses was as follows: Plaintiff testified that the lens wasn’t curved right. Dr. Christensen testified that in his opinion the contact lenses were of a flatter curve than the corneal curve and that the lenses fit poorly. Mr. Case testified that the lenses were too large and too thick. There is no suggestion in the record that such lenses were manufactured from the wrong material, or that they contained an improper ingredient. If there was any defect in such lenses, it was one of technician prescribing and not of manufacture and ingredient..

No one disputes the proposition that the defendant in this case would be held liable for the proximate results of its negligence based upon malpractice. But the jury having found against plaintiff on this theory, this is an attempt to affix liability without fault. To accept this theory would be an extension of the products liability law in this state. We are not inclined to make this extension. We say, as it was said in Cox v. Cartwright, supra, that only a strained view of the professional relationship between an optometrist and his patient could class the optometrist as a salesman of lenses.

Reversed and rendered that plaintiff take nothing.

DISSENTING OPINION

HIGHTOWER, Chief Justice.

I respectfully dissent. The implied warranty of suitability for the purpose for which a product is sold is especially applicable where the seller is also the producer or manufacturer of the article. Sugarland Industries, Inc. v. Falco, Tex.Civ.App., 360 S.W.2d 806 (err. ref. n.r.e.). Defendant here not only sold but manufactured the lenses in question. The majority opinion in basing its opinion on the Ohio case of Cox v. Cartwright, 96 Ohio App. 245, 121 N.E.2d 673, appears to attach no importance to such distinction.

All the elements necessary for an implied warranty are present in the case at bar and are fully supported by the evidence: (1) vendor knew of the use to which the contact lenses would be put; (2) vendee relied upon the superior knowledge and skill of vendor; (3) the vendor is also the manufacturer; and (4) the parties are ,⅛ privity of the contract.

Defendant argues that the production of contact lenses requires skill and judgment and that the lenses may not be fit for use. In most of the cases involved in implied warranty, the production of the article to be sold required skill and judgment and in most cases the object will not be fit for use. This appears to be the very reason why an implied warranty is imposed. The need for skill and judgment on the part of-the vendor is an element tending to create rather than negate the existence of an implied warranty.

The duties of an optometrist are specifically limited. Art. 4552, V.A.C.S., provides that an optometrist can: (1) measure the powers of vision of the human eye; and (2) fit lenses to correct a visual defect. The statute specifically prohibits the optometrist from treating the eyes in any manner whatsoever unless he is a licensed physician. Arts. 4552, 4565c and 4565d, V.A.C.S. Such limitations hardly envision the application of the law of malpractice as applied to physicians and dentists.

Moreover, whether the harm to plaintiff was occasioned by defendant’s optometrist or its technicians employed to grind the lenses to the prescription of the optometrist, the law of implied warranty and consequent liability must apply under these facts.

Accordingly, and as a matter of public policy, I would affirm the judgment of the trial court in favor of appellee.