author: PHILLIPS, Chief Justice.

text:
    Miller RHOADES, dba Rhoades Truck Lines, Appellant, v. PRUDENTIAL LEASING CORPORATION, Appellee.
    No. 11470.
    Court of Civil Appeals of Texas. Austin.
    March 1, 1967.
    Rehearing Denied March 22, 1967.

      Procter & Jones, James H. Granger, Austin, for appellant.
    Graves, Dougherty, Gee, Hearon, Moody & Garwood, William L. Garwood, Austin, for appellee.
   PHILLIPS, Chief Justice.

This suit was brought by appellee, Prudential Leasing Corporation, against appellant Miller Rhoades to recover damages for breach of a lease contract by which certain items of motor transportation equipment had been leased to Rhoades. Rhoades eventually filed a cross-action for money damages for alleged misrepresentations which he claimed induced him to enter into the transaction. With respect to Prudential’s action against Rhoades," a partial summary judgment was entered in Prudential’s' behalf on June 9, 1965, and final judgment in its behalf following subsequent trial on the merits of the issues remaining. On June 30, 1965, summary judgment was entered that Rhoades take nothing by his cross-action against Prudential.

We affirm.

Prudential’s suit was commenced March 19, 1963, in Harris County, and was transferred, after plea of privilege hearing, to Travis County. Thereafter Prudential filed its First Amended Original Petition which alleged that on or about December 20, 1961, Executive Leasing Service (to whose rights in the premises Prudential later succeeded) leased the equipment involved in this lawsuit to Rhoades. While Rhoades had possession of the equipment under the lease, a dispute arose between the parties which eventuated in Rhoades filing suit in March, 1962 against Executive Leasing Service in Travis County (styled Rhoades v. Executive Leasing Service, No. 125,839 in the 126th District Court.)

This suit alleged fraudulent misrepresentations by Executive, and sought, among other things, abatement of the rentals, or alternatively cancellation and recision of the lease transaction.

Executive answered and prayed that Rhoades be required to perform in accordance with the terms of the written lease.

Thereafter Executive and Rhoades agreed to settle the lawsuit and the respective obligations of the parties and in the pursuance of such settlement the suit in question was dismissed by order of the court on June 22, 1962. As a part of the settlement Rhoades continued to hold the equipment under lease from Executive, but the lease terms were modified.

Subsequently, Prudential succeeded to Executive’s rights in the premises. Prudential brought suit alleging that Rhoades breached the modified lease agreement by failing to meet the payments therein called for to be made on November 11 and December 11, 1962, hence the present suit.

In February, 1965, Prudential filed its motion for summary judgment and supporting affidavit. At this stage of the proceedings the only pleadings filed by Rhoades constituted a general denial and a plea of privilege. Thereafter, Rhoades filed his “Reply to Motion for Summary Judgment” and later his “First Amended Original Answer” including a cross-action. Rhoades took the position that although he had purported to sell the equipment in question to Executive and lease, it back from them in December, 1961, that such transaction was not genuine and was not what it purported to be, but that rather the transaction was really “a loan of money with the equipment acting as security” and that the same “was usurious under the law in that the same provided for more than 10% interest per an-num on said loan” and was hence “void.” Rhoades also claimed fraud on the ground that it was represented to him that the transaction “would be recognized as true leases by the Internal Revenue Service,” with the result that he could deduct the payments as “rent.” Rhoades further pleaded that at the time of the defaults made the basis of Prudential’s suit (i. e., November and December, 1962) he settled all disputes regarding the transaction with Prudential by delivering all the equipment to Houston so that another party (one A1 Craig) could take it over. The last paragraph of Rhoades’ amended answer filed March 31, 1965, constituted a cross-action for $150,000 money damages allegedly suffered by virtue of the claimed misrepresentation that the transaction was a true lease, with the payments thereunder being deductible as rent.

Prudential then filed its “Answer to Defendant’s Reply to Motion for Summary Judgment,” which contained objections and exceptions to the form and substance of the matters sought to be set up in the reply and also filed its “First Supplemental Petition and Original Answer to the First Amended Original Answer and Cross-Action” of Rhoades. In this pleading plaintiff pled that the disposition of the former lawsuit (Cause No. 125,839) and the settlement made in connection with it, operated to defeat Rhoades’ asserted defenses of usury and misrepresentation by reason of the doctrines of “estoppel, estoppel by judgment, collateral estoppel, res judicata, waiver, accord and satisfaction and compromise and settlement.” The supplemental petition also contained a general denial. For answer to Rhoades’ cross-action, Prudential pled the same matters, namely denial and estoppel, estoppel by judgment, collateral estoppel, res judicata, waiver, accord and satisfaction, and compromise and settlement, and in addition pled the two and four year statutes of limitation. Prudential also filed further affidavits in support of its motion for summary judgment, these affidavits including one containing certified copies of the pleadings in the previous case and one as to the testimony given on the hearing on the previous lawsuit.

Thereafter the court heard Prudential’s Motion for Summary Judgment and granted Prudential partial summary judgment.

Thereafter, Prudential filed a motion for summary judgment on Rhoades’ cross-action against it. This motion was based on the same grounds as its Motion for Summary Judgment on its action against Rhoades, and on the additional ground of limitation. Following another hearing, Prudential’s Motion for Summary Judgment that Rhoades take nothing by his cross-action was granted.

Appellant Rhoades is before this Court on four points of error, the first two briefed together being: the error of the trial court in partially granting appellee’s motion for summary judgment because there were genuine issues of material fact raised by the pleadings and affidavits filed in this cause, which fact issues could not be disposed of by summary proceedings but required determination by a jury; the error of the trial court in granting appellee’s motion for summary judgment and ordering that appellant take nothing by his cross-action, for the reason that there were genuine issues of material fact raised by the pleadings and affidavits filed in this cause.

We overrule these points.

As stated above, appellee Prudential contended that there was a leasing contract between the parties to this suit and that appellant Rhoades had breached this contract. Rhoades contends that the contract was not a lease as it purported to be but was actually a usurious loan agreement and was therefore void, that if he had been induced to enter into said contract by the misrepresentations of appellee, and the contract was therefore void or voidable; that he had also filed his cross-action for damages incurred as a result of this transaction which he would not have entered into except for ap-pellee’s fraudulent representations.

We hold that appellant was barred from asserting the abovementioned defenses to appellee’s suit on the contract by reason of the judgment entered in the original suit between Rhoades and Executive Leasing Service (Cause No. 125,839).

Appellant’s position seems to be that the abovementioned judgment was nothing more than a dismissal that adjudicated nothing, that the moving party was entitled to such at any time, that the dismissal was without prejudice and that for all practical purposes adjudicated nothing more than had he taken a nonsuit.

We cannot agree with this position. At the conclusion of the trial in the first suit, the parties announced to the court that they had settled their controversy and in open court stated the terms of the settlement and the modifications to be made in the lease. The lease agreement making these modifications recites that it is in settlement of the earlier suit, “the parties hereto having agreed to submit to the court for its recommendation the issues here involved.”

The motion to dismiss filed in the previous lawsuit specifically states that it is filed because “the points in controversy between plaintiff and defendant which were the basis of this lawsuit have been settled to the satisfaction of the parties herein” and “it is further agreed by the parties hereto that the costs of court will be shared equally.”

The order of dismissal of the previous lawsuit specifically states that it is granting the motion for dismissal and is signed not only by the court but also by the attorneys for both parties, approved as to form and substance.

The original lease, and the lease as modified in connection with the settlement of the earlier lawsuit, are both in evidence. Also, the term and rate of the initial lease are shown by Rhoades’ testimony at the previous lawsuit. It is undisputed that both leases cover the exact same vehicles and that Rhoades never surrendered possession of any of the vehicles between the time of the execution of the initial lease and the time subsequent to the settlement of the prior lawsuit and the execution of the lease amendments in connection therewith.

Accordingly, these undisputed facts evoke the rule that a judgment of dismissal entered by agreement of the parties in pursuance of a compromise, or settlement of a controversy, becomes a judgment on the merits. See Stephenson v. Gaines, 298 S.W. 401 (Tex.Comm’n App.1927); Van Cleave v. Bell Oil & Gas Co., 102 S.W.2d 1103 (Tex.Civ.App. Fort Worth 1937, err. dism.). That such judgment is conclusive, not only on the matters actually raised and litigated but also is conclusive on every other matter which the parties might have litigated and had decided as an incident to or essentially connected with the subject matter of the litigation. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216 (1942).

We cannot agree with appellant’s contention that in the previous lawsuit a plea of privilege was filed and not disposed of and that hence in the previous action the trial court had no jurisdiction, its judgment was void, and accordingly cannot be made the basis of a plea of res judicata. Parties of record who. are under no disability and are suing or defending for themselves alone may agree at any time to the dismissal of the action or defense, with or without prejudice, for they have the absolute control of the litigation at every stage of the proceeding. 24 Am.Jur.2d, sec. 7, page 8.

As was stated above, the court partially granted appellee’s motion for summary judgment. In this connection appellant sought to show that appellee had fraudulently induced him to enter into the above-mentioned contract by claiming that the rent paid for the truck leases in question was a deductible item under the Federal Income Taxes when in fact it was not.

We hold that the trial court was correct in his ruling for the reasons set out above with respect to res judicata and for the additional reason that appellant’s cross-action was barred by the two-year statute of limitations. Vernon’s Ann.Tex.Rev.Civ. Stat. Art. 5526. This cross-action- was not filed until March 31, 1965 wherein appellant sought money damages for the alleged misrepresentations described above. Since it is not disputed that appellant’s cause of action for the alleged misrepresentation accrued more than two years prior to March 31, 1965 when such cause was first filed, it is evident that the cross-action was barred by limitations. Appellant’s cross-action was for money damages, and was not an attempt to minimize plaintiff’s recovery, nor an action for or a defense of rescission or cancellation. Further, it was based on alleged fraudulent oral misrepresentations. 37 Tex. Jur.2d, Limitation of Actions, Secs. 48 and 50. Limitations ran up until the time of filing of this cross-action. Causeway Investment Co. v. Nass, 131 Tex. 12, 111 S.W.2d 703 (1938).

Appellant’s point of error number three is the error of the trial court in refusing to permit appellant to present evidence and elicit testimony concerning misrepresentations made by appellee which induced appellant to enter into the subject transaction, and further erred in refusing to permit appellant to present evidence and elicit testimony concerning the nature of said transaction.

We overrule this point.

Appellant complains that in addition to erroneously granting appellee’s partial motion for summary judgment, the court further erred in refusing to permit appellant to present evidence and elicit testimony as to whether the leasing transaction described above was in fact a usurious loan and the above described alleged misrepresentations on the part of the appellee which induced appellant to enter into the lease agreement.

This evidence was properly excluded as it was immaterial to the suit under the view that we have taken here.

Appellant’s fourth point of error is that of the trial court in overruling appellant’s exception to special issue No. 3 of the court’s charge, and also erred in refusing to submit to the jury appellant’s requested instruction on said issue.

We overrule this point.

Appellant contends that appellee had agreed to release appellant from his obligations under the lease upon the giving of certain promises, and that appellee agreed to accept the terms of said promises in complete settlement and satisfaction of the controversy between the parties concerning said agreement.

Appellant requested that the following special issue be submitted to the jury:

“Do you find from a preponderance of the evidence that Prudential Leasing Corporation reached an agreement by which the defendant Rhoades was discharged from his obligation under the 1962 lease by giving the promises set forth in the preceding Special Issue No. -, if you have found they were made.” (Emphasis added.)

The trial court refused to give this special instruction and gave in lieu thereof the following instruction:

“Special Issue No. 3:
Do you find from a preponderance of the evidence that Prudential Leasing Corporation and Miller Rhoades reached an agreement prior to December 20, 1962 by which the defendant Rhoades was to discharge his obligation under the 1962 lease by performing the promises set forth in the preceding special issue number 2, if you have found they were made ?” (Emphasis added.)

Special Issue No. 3 was answered by the jury in the negative.

Appellant timely objected to this submission pointing out in effect that such special issue placed a more onerous burden upon appellant than was appropriate under the pleadings, evidence and the law.

After reviewing the record, we hold that the issue submitted by the court was raised by the pleadings and the evidence in the case. Texas Rules of Civil Procedure, rule 277. Here the emphasis was on an agreement to perform. Note appellant’s answers to the following questions:

“Q If I understand you then, in your conversation with them concerning this settlement, you didn’t expect to be released to the extent of not having to lend your personal support by way of endorsement of Craig’s notes. You knew that you would have to lend support to his note by endorsing his note. Is that correct?
A Yes, Sir, I was more than willing.”

then again:

“Q Now, Mr. Rhoades, I want to see if I can understand what your testimony is about the deal that you say you had with Bob McNair. Were you going to endorse a note as part of that deal ? Is that what you ha-ve testified to, that a part of that deal was that you were going to endorse a note?
A I told Bob McNair if he would put the lease in A1 Craig’s name and let him sign the lease, I would personally endorse a note for A1 Craig for the amount of money.
* * * * ⅜ ⅜
He said part of the deal. I volunteered, told him I would do it. Now, he didn’t write it up.
Q Well, did you understand that that was part of the deal or not? Now, that is a simple enough question, Mr. Rhoades ?
A Yes, sir, I was going to do it.”

We affirm the judgment of the trial court.

Affirmed.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    CONTINENTAL CASUALTY COMPANY, Appellant, v. Walter ABERCROMBIE, Appellee.
    No. 275.
    Court of Civil Appeals of Texas. Tyler.
    March 23, 1967.
    Rehearing Denied April 13, 1967.

      Ramey, Brelsford, Flock & Devereux, Michael A. Hatched and Richard Grainger, Tyler, for appellant.
    Cornelius & Cornelius, Bill J. Cornelius, Jefferson, Phenix, Keeling & Wilder, Henderson, for appellee.
   SELLERS, Justice.

Appellee brought this suit against appellant to recover for personal injuries received by appellee while he was an employee of United Gas Company. The claim is brought under the Workmen’s Compensation law of Texas.

The alleged injury occurred at Tatum on February 1, 1962, and the foreman of the ■crew was present and saw the accident when it happened, or at least helped to get the pipe off the appellee when he fell un•der the same.

Appellant on this appeal seeks to defeat recovery by appellee on the ground that ap-pellee did not file a claim with the Industrial Accident Board within the time required by law and did not offer evidence ■sufficient to show good cause for not so ■doing.

The case was tried to a jury and the jury found good cause existed as follows:

“SPECIAL ISSUE NO. 14:
“Do you find from a preponderance of the evidence that Walter Abercrombie believed that one or more of his supervisors had filed for him a claim for compensation with the Industrial Accident Board?
“Answer Yes or No.
“ANSWER: Yes.
“If you have answered Special Issue No. 14 ‘Yes’ and in that event only, then answer the following special issue.
“SPECIAL ISSUE No. 14-A:
“Do you find from a preponderance of the evidence that such belief, if any you have found, continued up until the time that Walter Abercrombie’s claim for compensation was filed with the Industrial Accident Board?
“Answer Yes or No.
“ANSWER: Yes.
“If you have answered Special Issue No. 14-A ‘Yes’ and only in that event, then answer the following special issue.
“SPECIAL ISSUE NO. IS:
“Do you find from a preponderance of the evidence that such belief on the part of Walter Abercrombie, if any you have found, constituted good cause as that term is defined herein for his failure to file his claim with the Industrial Accident Board until the time the same was filed ?
“Answer Yes or No.
“ANSWER: Yes.
“SPECIAL ISSUE NO. 16:
“Do you find from a preponderance of the evidence that Virgil Alder represented to Walter Abercrombie that he would file for him such claims and reports as might be necessary to establish his claim for workmen’s compensation ?
“Answer Yes or No.
“ANSWER: Yes.
“If you have answered Special Issue No. 16 ‘Yes’ and in that event only, then answer the following special issue.
“SPECIAL ISSUE NO. 17:
“Do you find from a preponderance of the evidence that Walter Abercrombie relied upon such representations, if any you have found, in failing to file his claim for compensation with the Industrial Accident Board up until the time the same was filed ?
“Answer Yes or No.
“ANSWER: Yes.
“If you have answered Special Issue No. 17 ‘Yes’ and in that event only, then answer the following special issue.
“SPECIAL ISSUE NO. 18:
“Do you find from a preponderance of the evidence that such reliance by Walter Abercrombie upon the representations of Virgil Alder, if you have so found, constituted good cause, as that term is defined herein, for his failure to file his claim with the Industrial Accident Board up until the time the same was filed?
“Answer Yes or No.
“ANSWER: Yes.
“SPECIAL ISSUE NO. 19:
“Do you find from a preponderance of the evidence that one or more of Walter Abercrombie’s supervisors represented to him that they would file for him such claims or reports as might be necessary to establish his claim for workmen’s compensation ?
“Answer Yes or No.
“ANSWER: Yes.
“If you have answered Special Issue No. 19 ‘Yes’ and in that event only, then answer the following special issue.
“SPECIAL ISSUE NO. 20:
“Do you find from a preponderance of the evidence that Walter Abercrombie relied upon such representations, if any you have found, in failing to file his claim for compensation with the Industrial Accident Board up until the time such claim was filed?
“Answer Yes or No.
“ANSWER: Yes.
“If you have answered Special Issue No. 20 ‘Yes’ and in that event only, then answer the following special issue.
“SPECIAL ISSUE NO. 21
“Do you find from a preponderance of the evidence that such reliance on the part of Walter Abercrombie, if you have so found, upon such representations, if any, constituted good cause, as that term is defined herein, for his failure to file his claim for compensation with the Industrial Accident Board up until such claim was filed?
“Answer Yes or No.
“ANSWER: Yes.
Appellee testified as follows:
* * *
“Q Now, I will ask you this, did you finally decide that they weren’t going to do anything about it?
A Yes, sir.
Q When you decided that I will ask you whether or not you came to see us as lawyers to see about your rights?
A Yes, sir.
Q Now, I will ask you, Walter, if all this time from the time you were injured up until the time you came to see us, did you believe that your supervisors for United had taken care of any filings or reports that were necessary for you to get compensation?
A Yes, sir, I believed it.
Q And you depended on them doing it ?
A Yes, sir.
Q And when wou came to see us was that or not the first time you ever knew that they hadn’t done it and you had to do something yourself ?
A That’s right.
Q And did you then ask us to do that for you?
A Yes, sir.
* # ⅜ »

From the record as a whole, we are of the opinion that the evidence is sufficient to sustain the jury’s finding that good cause existed for not filing his claim for compensation within the six months required by law. The jury had a right to consider the fact that appellee could not read or write and had never been to school in passing upon the issue of good cause. Green v. Texas Employers’ Insurance Association, Tex.Civ.App., 339 S.W.2d 368, writ ref., n.r.e.; Texas General Indemnity Co. v. McNeill, Tex.Civ.App., 261 S.W.2d 378; United States Fidelity and Guaranty Company v. Herzik, Tex.Civ.App., 359 S. W.2d 914.

There are a number of admissions by ap-pellee on cross-examination which the appellant contends are sufficient as a matter of law to show that appellee did not have good cause for not filing his claim within six months. The following is deemed sufficient to illustrate appellant’s contention:

« * * *
“Q And you said he (Alder) said he would file a claim for you?
A That is what he said.
Q Now, when you went to the doctor you were not relying on that, were you?
A Well, he hadn’t did it.
Q He hadn’t done it, had he?
A No, sir.
Q Well, that is my point. About a month and a half before you were terminated Mr. Alder was transferred from Marshall, wasn’t he? Speak up.
A Yes, sir.
Q And then you went to another crew, didn’t you?
A I worked for Mr. Peden.
Q You worked for Mr. Peden. All right. Then you didn’t tell anyone else with United Gas that you had had an accident, did you, and you knew that Virgil Alder had been transferred?
A Mr. Alder knowed it.
Q So after Mr. Alder left you knew that he hadn’t done anything about it, didn’t you, Walter, about filing your claim, didn’t you, Walter?
A Yes, sir, I knowed he hadn’t did anything about it. I didn’t know he hadn’t did nothing about it, because I didn’t know what he had done.
* * ⅜ if

The facts above quoted and other similar statements, appellant contends, are sufficient as a matter of law, taken in connection with the record as a whole, to show that appellee did not have good cause for not filing his claim within the six months required by law.

With this contention, we cannot agree. The jury had a right to place their own interpretation on the above statements and the record shows they evidently reached the conclusion that appellee was saying that Mr. Alder had not gotten him anything rather than that he had not filed a claim for compensation within six months with the Industrial Accident Board.

The contention of appellant is controlled by the case of United States Fidelity and Guaranty Company v. Herzik, above cited, where the Court held:

“ * * * Appellant also contends that appellee’s testimony concerning the only reason she failed to file her claim for compensation constitute judicial admission. However, we think these statements were modified by her further testimony that she relied on the company to take care of everything pertaining to insurance because of the statement to that effect made by Mr. Freeborn.”

Appellant’s contention is overruled.

Appellant complains of Special Issue No. 1, which is as follows:

“Do you find from a preponderance of the evidence that Walter Abercrombie sustained an injury (as that term is defined herein) on or about February 1, 1962?
“Answer Yes or No.
“ANSWER: Yes.”

The contention is made that the evidence made an issue as to the date of the accident, and the above issue as given assumes that the date therein was correct and also constituted a comment on the weight of the evidence.

The issue as submitted has been approved by our courts many times. The contention made by appellant has been denied in the case of Texas Employers’ Ins. Ass’n v. Mincey, Tex.Civ.App., 255 S.W.2d 262 and the cases therein cited. The assignment is overruled.

There are other assignments of error which this Court has considered and they are overruled.

Judgment of the trial court is affirmed.


text:
    HUMBLE OIL & REFINING COMPANY v. Johnnie D. WILLIAMS.
    No. 259.
    Court of Civil Appeals of Texas. Tyler.
    March 16, 1967.
    Rehearing Denied April 13, 1967.

      Frank L. Heard, Jr., Houston, for appellant.
    Tucker, Senff & Adams, Tom P. Senff, Nacogdoches, for appellee.
   SELLERS, Justice.

The appellee brought this suit against appellant seeking to recover damages to the surface of a certain tract of land in Nacog-doches County. In his petition, he made the following allegations:

“IV.
“That during the month of April and the month of May of the year of 1964 the DEFENDANT, without right, title and/or interest, the DEFENDANT willfully and intentionally tresspassed on and upon the above described tract of land; and,
“V.
“That DEFENDANT, by such willful tresspass, constructed a road 2,045 feet long at an average of 28 feet in width black-top construction to PLAINTIFF’S damage in the sum of ONE THOUSAND AND FIVE HUNDRED AND NO/100 DOLLARS ($1,500.00); and,
“VI.
“That DEFENDANT, by such willful tresspass, drove on and upon an area 555 feet long and averaging 9 feet in width through pasture and small timber land thereby causing ruts and depressions to PLAINTIFF’S damage in the sum of SEVEN HUNDRED AND FIFTY AND NO/100 DOLLARS ($750.00); and,
“VII.
“That DEFENDANT, by such willful tresspass, by driving on and upon pasture land created a road 50 feet in length and averaging 8 feet in width in pasture to PLAINTIFF’S damage in the sum of ONE HUNDRED AND FIFTY AND NO/100 DOLLARS ($150.00); and,
“VIII.
“That DEFENDANT, by such willful tresspass, by parking vehicles and equipment, and turning equipment into and on the pasture land did cause ruts and depressions in said pasture to PLAINTIFF’S damage in the sum of TWO HUNDRED AND FIFTY AND NO/100 DOLLARS ($250.00); and,
“IX.
“That DEFENDANT, by such willful tresspass, cut and destroyed growing pine trees in the number of 315 of the value of TWO AND 67/100 DOLLARS ($2.-67) each to PLAINTIFF’S damage in the sum of EIGHT HUNDRED FORTY ONE AND 25/100 DOLLARS (841.25).
“Wherefore, premises considered, PLAINTIFF demands that DEFENDANT be cited to appear herein; for final judgment in the sum of THREE THOUSAND FOUR HUNDRED NINTF ONE AND 25/100 DOLLARS ($3,491.25); for costs herein extended; for all other relief to which he may prove himself entitled.”

The appellant, in its answer, denied generally the allegations contained in appel-lee’s petition. The case was tried to the Court without a jury and resulted in a judgment for appellee in the sum of $550.00, to which judgment the appellant in open Court duly excepted and has prosecuted an appeal to this Court.

Appellant has but two assignments of error: (1) that “There is no evidence that defendant willfully trespassed on plaintiff’s land.”; and (2) that “There is no evidence to support any finding of damages occasioned by wrongful (tortious) conduct of defendant.”

At the outset of the trial, the parties agreed that appellee owned the surface of the land and that appellant owned a valid oil and gas lease covering the same land.

The only evidence offered by appel-lee on the trial with respect to the damages above alleged was by appellee himself, and without undertaking to set out appellee’s evidence, we deem it sufficient to sustain the allegations of his petition. Appellee’s father likewise testified and corroborated appellee’s testimony in some particulars. The only evidence offered by appellant was a number of photographs. At the close of the evidence and argument of counsel, the trial court made the following findings, to-wit:

“THE COURT: The Court having considered the evidence and argument of counsel in this cause, the Court is of the opinion that cause does exist under the pleadings notwithstanding the Warren Petroleum Company case. The Court is further of the opinion that the damages in this cause, from the evidence presented, in accord with the law pretaining to the case would recognize, of course, the theory of the defendant that they do have a right to the use of a reasonable amount of this land for a road, they are only liable to those damages which under their theory they have caused to the property, the nature of damages, of course, in this cause being on a before and after basis. The sum of five hundred and fifty dollars would be a reasonable sum of damages to this property, and it shall be the Judgment of the Court.”

The Warren Petroleum Corp. v. Martin case, 153 Tex. 465, 271 S.W.2d 410, holds:

“The petitioner (oil and gas lessee) was lawfully in possession of the premises and being the owner of the dominant estate had the legal right to use so much of the leased premises as were reasonably necessary in its operation to the exclusion of respondent (surface lessee), the owner of the servient estate. * * * ”

It is evident from the court’s finding that it recognized the right of appellant to go upon the land, but to use only the amount of the surface reasonably necessary to develop the oil and gas estate, and recognizing this right of appellant, the Court still found that the appellee’s surface estate had been damaged to the extent found by the court.

Our courts have defined a trespass to realty as follows:

“ * * * The act causing injury to the realty of another, whether directly or indirectly, is a trespass. * * *” Tunstill v. Pacific Mid-Continent Corporation, Tex.Civ.App., 142 S.W.2d 594.

We find the word “willful” defined as follows:

“ * * * The elements necessary to characterize an injury as wantonly or wilfully inflicted, are (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, * * Wright v. Carey et al, Tex. Civ.App., 169 S.W.2d 749.

There is evidence that the road was a black-topped hard surface road across appellee’s land and that the County road leading to appellee’s land was an ordinary gravel road; that more than 315 pine trees were destroyed in the construction of the road on appellee’s land; and also that heavy trucks were driven out on to the pasture of appellee, leaving deep ruts. This, evidence, in our opinion, presented a fact, question for the Court to determine whether the appellant used more of the surface-than was reasonably necessary to develop-the mineral estate. Texaco Inc. v. Joffrion,. Tex.Civ.App., 363 S.W.2d 827.

We are unable to say that the Court did not have evidence, as contended by appellant, to sustain its finding of damage to the land of appellee, and appellant’s assignment is overruled.

Judgment of the trial court is affirmed.


author: GREEN, Chief Justice.

text:
    AETNA CASUALTY & SURETY COMPANY, Appellant, v. T. W. SCRUGGS, Appellee.
    No. 266.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 9, 1967.
    Rehearing Denied March 30, 1967.

      O. F. Jones, of Guittard, Henderson, Jones & Lewis, Victoria, for appellant.
    L. DeWitt Hale, Corpus Christi, for ap-pellee.
   OPINION

GREEN, Chief Justice.

This is a workmen’s compensation case. Appellee T. W. Scruggs alleged that on February 26, 1960, while engaged in his duties for his employer DuPont in lifting and handling heavy steel reinforcing rods he sustained severe strain and injuries proximately causing serious damage to his heart, and resulting in total and permanent disability.

The jury in answer to special issues Nos. 1, 2, and 3, found that (1) appellee sustained an injury on or about February 26, 1960, (2) which was accidental, and (3) which was received in the course of his employment with DuPont. The jury further found such injury to be the producing cause of temporary total disability for a period of 26 weeks from February 26, 1960, and permanent partial disability thereafter; and that appellee’s incapacity was not solely the result of a pre-existing heart trouble and the natural progress thereof.

Based upon the verdict of the jury and certain stipulations of the parties, judgment was entered for appellee for $12,623.-81, of which a fee of 30% was awarded his attorney.

Appellee testified that after having successfully passed a pre-employment medical examination, he went to work for DuPont as an iron worker at its Victoria County plant in early February, 1960. Prior to this occasion, he was in good health, and had never had a heart attack, to his knowledge, and had never been in a hospital. He was at the time 62 years of age. About 2:30 P.M. on Friday, February 26, 1960, he and another employee, Parker, were removing heavy steel reinforcing rods 40 feet long and a little less than one inch thick from a bundle. This bundle of rods had become twisted at one end, making it necessary, in order to extricate an individual rod, to pull at it rather vigorously, jerking and popping it with considerable exertion. As he was pulling and jerking on a rod, he stated, the rod came loose, and something went wrong with him inside. He suddenly felt severe pain in his chest, accompanied by shortness of breath, and he was forced to stop working and sit down. The sharp pains spread into his left arm. He was unable to work, and his foreman took him in a truck to the company first aid station, where he was examined first by a nurse, and then by Dr. McGlothlen, the DuPont doctor. Suspecting heart trouble, he gave appellee an E.K.G., which except for an enlargement on one side of the heart disclosed nothing abnormal. Dr. McGlothlen released him and since appellee was going to his home in Corpus Christi for the weekend, suggested that he see a doctor there.

Appellee was unable to perform any more work that afternoon, and at 4:30 P.M. he and Parker left in the latter’s automobile for their homes in Corpus Christi. During this ride appellee continued to suffer severe chest pains, which became more intense as they crossed the high bridge leading into Corpus Christi. He attended a labor union meeting that night, but had to leave early because of pain in his chest. The next morning he was taken to a doctor, who examined him and prescribed medicine for his suffering. That afternoon he had a recurrence of the severe pains, lost consciousness (awakening three days later) and was taken to Thomas-Spann Clinic in Corpus Christi, where he was hospitalized. He remained in the hospital for four weeks under the treatment of Dr. Thomas. He then, for reasons of economy, moved to Nixon to live with his wife’s daughter, where he remained to the date of trial. During this period he was under constant care and treatment of Dr. Sam Nixon. He has not been able to obtain and retain employment of any substantial nature since February 26, 1960.

Three doctors gave evidence on trial, Dr. Sam Nixon for appellee, and Dr. Hicks and Dr. McGlothlen as defense witnesses. Dr. Nixon testified through deposition taken in April, 1964, by answers to written interrogatories. He started treating appellee on May 25, 1960, in Nixon, Texas, and had been regularly attending to him since that date. The history furnished him was consistent with appellee’s testimony outlined above. He ran an E.K.G. on appellee on May 31, 1960. Dr. Nixon expressed the opinion (in answer to interrogatory No. 25) based on his examination and the electro-cardiogram, that appellee had at that time arteriosclerotic heart disease with coronary artery disease manifested by myocardial infarction and angina pectoris, and that such findings were consistent with the history as given him by appellee. He said that physical effects of a coronary occlusion do not invariably show up on an E.K.G. taken immediately after the occurrence. In his opinion heavy physical exertion can cause or contribute to the onset of a coronary occlusion, (answer to No. 32) and in answer to a lengthy hypothetical question (No. 33) which assumed as true facts taken from the evidence, stated as his opinion that the heavy manual labor being performed probably caused, brought about, triggered or contributed to the coronary occlusion. He testified, based on his opinion from his own examination and treatment of appellee for four years, that appellee would not ever be able to obtain and retain employment requiring heavy manual labor.

In answer to cross-interrogatories, Dr. Nixon expressed the opinion that most coronary occlusions do not occur without any relation to physical activity, nor to his knowledge, do they usually occur while the patient is at rest. We call attention to this, since there appears to be conflict between him and defense medical experts on this point.

We have read and considered the testimony of appellant’s medical witnesses, Dr. McGlothlen, DuPont’s plant physician and Dr. Hicks, a heart specialist. Both were of the opinion that a coronary occlusion is not usually caused by exertion, but more frequently occurs during rest, although angina is generally the result of effort or exertion. Both testified that the hospital records established that appellee had sustained a coronary occlusion and resulting myocardial infarction, and that this was entirely consistent with his history of an enlarged heart and arteriosclerosis. They did not believe that the coronary occlusion occurred February 26th; however, neither expressed the opinion that the effort and strain of the work appellee was doing in the afternoon of February 26, 1960 was not connected wtih his subsequent disability; the most either would say was that there was no evidence that such was the case, and no evidence that appellee had suffered a heart attack, as differentiated from an attack of angina, while at work on the job. In this connection Dr. Hicks testified:

“Q If he has a pre-existing condition, if he has some coronary heart disease, even if it’s unknown to him, is it your opinion, to recap this, the fact that he is pulling on something and exerting himself is probably not going to have any significance?
A As far as the production of an acute miocardial infarction, this is true. We don’t have any medical evidence to really indicate, in thousands of cases, that exertion of this type produces an acute mio-cardial infarction.
If you are talking about chest pain or angina, that is a different situation. Because here, exertion does produce chest pain. This is when the coronary arteries are narrowed enough, but not closed, so that at rest, the patient’s heart functions normally. The heart muscle gets enough blood supply, but as he exerts, the heart rate picks up. The heart muscles needs more oxygen supply, but it can’t get it.
This will produce what we call angina pectoris. Then it goes away as the patient rests, but that is an entirely different thing than an acute miocardial infarction where there is an actual block of the blood vessels.
It is then deprived of its blood supply and it could come from a couple of things, one is when one of these areas of hardening of the arteries can suddenly close off or actually a hemmorhage can develop in the lining of the blood vessel wall, which would completely close the artery, so the person would develop a heart attack.
We don’t have convincing evidence from a medical standpoint that exertion produces miocardial infarctions.
This more often happens at rest.”

He went on to say: “And in such cases as this, it is hard to tell whether the first episode is what we call angina or whether this was the first part of a heart attack or whether it occurred the next day.” Dr. McGlothlen testified, and we consider this as significant, that when he released ap-pellee from the first aid station after ap-pellee had rested and his blood pressure had dropped to almost normal, he suggested that appellee see a doctor in Corpus Christi, explaining “that if this was, as I suspected, angina, he should be under treatment to prevent it from going into a coronary occlusion.

On the trial, the complete hospital records, including a series of cardiograms and reports of Dr. Thomas, were admitted into evidence without objection. All of the medical testimony is to the effect that ap-pellee while in the hospital was suffering from a coronary occlusion which led to myocardial infarction. In this regard, we quote from appellant’s brief:

“ * * * we do not dispute that Appel-lee Scruggs has, at some prior time, suffered a severe coronary occlusion. We think it was Saturday, February 27, 1960, just before he was hospitalized in Corpus Christi. We also do not dispute that he is presently disabled because of his heart condition. We take no issue whatsoever with Dr. Nixon’s testimony concerning Mr. Scruggs’ present condition, or even what he found when he first saw Scruggs. We do take exception to Dr. Nixon’s attempt to testify on or about April 20, 1964, based on records and reports or statements of other doctors, and his treatment beginning May 31, 1960, that Appellee suffered a heart attack at 2:30 P.M., on February 26, 1960 which was directly produced by heavy physical exertion immediately preceding.”

Appellant’s brief sets forth fifteen points of error. The first is that the court erroneously admitted into evidence certain testimony and conclusions of the witness Dr. Sam Nixon which allowed appellee to establish that an accidental injury within the scope of his employment had occurred, the objections to such evidence being set forth in the point of error. Point No. 14 alleges error in refusing to strike such testimony on appellant’s motion at the close of the evidence. The remaining points raise the question of the factual and legal insufficiency of the evidence to support the jury findings to special issues Nos. 1, 2, and 3, that on February 26, 1960, appellee received an accidental injury in the course of his employment with DuPont. In its opening statement to its discussion of its points of error in its brief, appellant says:

“All of these points actually relate to one main proposition, namely, without the testimony of Dr. Nixon there is no competent probative evidence which will support Plaintiff’s case and the Judgment in his favor, and that the Court erred in admitting Dr. Nixon’s testimony to the end that an erroneous Judgment was rendered by the Trial Court. Accordingly, all of these points are briefed together.”

The only testimony of Dr. Nixon placed in evidence to which appellant objected were his answers to interrogatories 25, 32, and 33. No. 25 asked the witness to state the nature of the physical difficulties affecting Mr. Scruggs revealed by the witness’s examination and the electrocardiogram. This called for an answer as to the appellee’s condition when he was under the care and treatment of Dr. Nixon, and after an E.K.G. was taken by him; and answer was given as heretofore stated. Since both of appellant’s doctors testified that appellee had a coronary occlusion resulting in myocardial infarction, and since appellant has stated that it does not take issue with Dr. Nixon’s testimony of Scruggs’ present condition or his condition when the witness first saw him, error, if any, in the admission of the answer that appellee at that time had such heart trouble would not be harmful. However, we find that the witness, as the treating doctor, was qualified to answer the question, and the admission of the testimony was not error. Norris v. Lancaster, Tex. Com.App., 280 S.W. 574; Gray v. Bird, Tex.Civ.App., 380 S.W.2d 908, writ ref., n. r. e.; Texas Employers’ Ins. Ass’n v. Rogers, Tex.Civ.App., 368 S.W.2d 21, writ ref., n. r. e.; Schooler v. State, Tex.Civ.App., 175 S.W.2d 664, writ ref., w. o. m.; Southern Underwriters v. Blair, Tex.Civ. App., 144 S.W.2d 641, n. w. h.

Although appellant most strenuously insists that direct interrogatory No. 33 and the answer thereto were improperly admitted in evidence, he likewise attacks the admissibility of No. 32, which actually was an introductory question to the following lengthy hypothetical No. 33. The trial court properly overruled appellant’s objections of leading and not supported by the evidence to No. 32, which inquired whether, in reasonable medical probability, heavy physical exertion could cause or contribute to the onset of a coronary occlusion. The witness answered “Yes.” He being qualified as an expert medical witness, and the inquiry being germane to the issue in the case, we see no error in the ruling of the court. Guthrie v. Texas Employers Ins. Ass’n, 146 Tex. 89, 203 S.W.2d 775, pp. 776, 778.

Question No. 33 reads as follows:

“Assume the following facts to be true. A man is in good physical condition with no indications or symptoms of heart trouble. For many years he has performed heavy manual labor. One day he is doing heavy manual labor involving the carrying of one-inch reinforcing rods about forty (40) feet in length and also involving the lifting of these rods. The work is heavy and the pace is rapid. As he attempts to lift one of these rods, he suddenly feels sharp, stabbing pains in his chest, radiating to his left side and into his left shoulder and arm. He sweats profusely. The pain is so severe he quits work and sits down and rests for a period of time. He then attempted to go to a doctor for treatment, but found that he was unable to walk due to the severe pain. He is taken to a doctor in an automobile. An electrocardiogram is taken but the results are negative. The pain subsides slightly and the man tries to walk back towards the job. The pain starts again. The man quits work and goes home and goes to bed. The initial onset of the pain occurred about 2:30 p. m.; about 8:00 p. m. the same day severe pain recurs for a short period of time, then subsides somewhat and the man does not receive medical treatment that evening. The following day about 6:30 p. m. the pain recurs with increased severity. His wife removes him from his home to a hospital where he remains hospitalized for approximately four weeks. Electrocardiograms revealed that he sustained a coronary occlusion. Assuming the foregoing facts to be correct, please state whether in your opinion, based on reasonable medical probability, the heavy manual labor being performed by the man probably caused, brought about, triggered or contributed to the coronary occlusion which he sustained.
“Answer: He answers, I think so.”

Appellant objected on the grounds that the question is leading, suggestive, and an incorrect assumption of the facts — that it assumes, based upon the testimony and findings of other doctors, the essential fact in the case that the plaintiff sustained a coronary occlusion on February 26, 1960 at approximately 2:30 p. m., and because of such fact, and because of the inclusion of findings of other doctors who had read the cardiograms, it includes matters which the witness could not but did take into consideration in making his answer, and that it assumes a state of facts at variance with plaintiff’s testimony. The objections were overruled.

Appellant further objected to the answer as being too vague or ambiguous to be probative, which objection was overruled.

The trial court did not err in overruling appellant’s objections to Question No. 33, and in denying his motion to strike based on substantially the same reasons, including the ground that the witness’s opinion is based •on information that is hearsay as to appellant.

If the question was in any way leading or suggestive, as most long hypothetical questions are apt to be, the .admission of the testimony over such objection was within the sound discretion of the trial judge. Texas Employers’ Ins. Ass’n v. Frazier, Tex.Civ.App., 259 S.W.2d 242, writ ref. n. r. e.

We have examined the facts assumed in the hypothetical question, and have compared them with the testimony in the statement of facts; and we do not find that such assumptions are at variance with the testimony. There appears to us to be evidence to support every assumption made in the question. It is not necessary that the hypothetical question embrace every fact in evidence; it is within the province of counsel to assume, within the limits of the evidence, any state of facts which he claims the evidence justifies and which enables the witness to formulate an intelligent answer and have the opinion of the expert upon the facts assumed. Gulf, C. & S. F. Ry. Co. v. Compton, 75 Tex. 667, 13 S.W. 667; Foreman v. Texas Employers’ Ins. Ass’n, 150 Tex. 468, 241 S.W. 2d 977; Insurance Company of North America v. Pittser, Tex.Civ.App., 399 S.W. 2d 901, writ ref. n. r. e.; Highway Insurance Underwriters v. Matthews, Tex.Civ.App., 246 S.W.2d 214, writ, ref., n. r. e. If appellant desired to challenge the facts contained in the hypothetical question, it was its duty to do so on cross-examination. Shuffield v. Taylor, Tex.Com.App., 125 Tex. 601, 83 S.W.2d 955, 960(7); Decatur Cotton Seed Oil Co. v. Belew, Tex.Civ. App., 178 S.W. 607, writ ref.; Maryland Casualty Co. v. Allen, Tex.Civ.App., 22 S.W.2d 329.

The question does not assume that ap-pellee sustained a coronary occlusion at any time on February 26; nor that the electrocardiograms revealed that he sustained such on that date. Appellee’s case was not made to depend on the occurrence of a coronary occlusion while he was on the job February 26; his pleadings and evidence were to the effect that at about 2:30 p. m., February 26, 1960, while ap-pellee was acting within the scope of his employment he sustained a strain and injury which contributed to or brought about the damage to his heart and to his resulting disability. Dr. McGlothlen on the afternoon of February 26 suspected appellee’s trouble to be angina, and felt that it was necessary for him to be under treatment to prevent it from going into a coronary occlusion. As heretofore stated, it is conceded by appellant that appellee has sustained a coronary occlusion, and myocardial infarction.

The objection made by appellant was insufficient to raise the question that it assumed a state of facts at variance with plaintiff’s testimony, even if such were the case, since the burden was on appellant in objecting to specify to the trial court in what respect the question did not conform to the testimony, and this it failed to do. Schaff v. Shepherd, Tex.Civ.App., 196 S.W. 232, writ ref.; Texas Indemnity Ins. Co. v. Perdue, Tex.Civ.App., 64 S.W.2d 386, writ ref.; Texas Indemnity Ins. Co. v. Gannon, Tex.Civ.App., 38 S.W.2d 181, writ dism.; Texas Employers’ Ins. Ass’n v. Melton, Tex.Civ.App., 304 S.W.2d 453, 461, writ ref., n. r. e.; Geochemical Surveys v. Dietz, Tex.Civ.App., 340 S.W.2d 114, 120, writ ref., n. r. e.

Interrogatory 33 did not inquire as to Dr. Nixon’s diagnosis or opinion as the treating doctor of appellee; it was strictly a hypothetical question propounded to the witness as a qualified medical expert calling for his opinion on an assumed state of facts. Provided the facts assumed are properly supported by evidence, and sufficient to call for an intelligent answer, and we have so held as to this question, such hypothetical question was not subject to the objections, and the court did not err in overruling them. Foreman v. Texas Employers’ Ins. Ass’n, 150 Tex. 468, 241 S.W.2d 977; Shuffield v. Taylor, Tex.Com.App., 125 Tex. 601, 83 S.W.2d 955, 960, opinion adopted by Supreme Court; Texas State Highway Department v. Fillmon, 150 Tex. 460, 242 S.W. 2d 172; Gulf, C. & S. F. Ry. Co. v. Compton, 75 Tex. 667, 13 S.W. 667; John Hancock Mutual Life Ins. Co. v. Stanley, Tex. Civ.App., 215 S.W.2d 416, 421; Highway Insurance Underwriters v. Matthews, Tex.Civ.App., 246 S.W.2d 214, 216, writ ref., n. r. e.

The question finally asked in No. 33 was, assuming the stated facts to be correct, whether in the witness’s opinion, based on reasonable medical probability, the heavy manual labor brought about, triggered or contributed to the coronary occlusion which he sustained. The witness answered “I think so.” This was a responsive answer to the question. The court did not err in admitting such answer. Texas Employers’ Ins. Ass’n v. Talmadge, Tex.Civ.App., 256 S.W.2d 945, writ ref., n. r. e.; Aetna Insurance Company v. Hart, Tex.Civ.App., 315 S.W.2d 169, writ ref., n. r. e.; Texas Employers’ Ins. Ass’n v. Jenkins, Tex.Civ.App., 357 S.W.2d 475, writ ref., n. r. e. Points One and Fourteen are overruled.

In considering the point of legal insufficiency, which raises a question of law, we consider only the evidence and the inferences therefrom tending to support the findings and disregard all evidence and inferences to the contrary. In passing upon the points of factual insufficiency, we consider all of the evidence and reasonable inferences. Garza v. Alviar, Tex.Sup.Ct, 395 S.W.2d 821. In applying such rules, we find that the answers of the jury that ap-pellee sustained an accidental injury on February 26, 1960, while in the scope of his employment with DuPont, which is the only part of the verdict questioned by appellant, is supported both legally and factually by the evidence, and the remainder of appellant’s points of error are overruled.

In its brief and oral argument, appellant took the position that in order to recover, appellee must prove that his heart attack occurred while he was at work on the afternoon of February 26. Appellant contends that under the evidence the coronary occlusion did not take place until just before appellee entered the hospital on the evening of February 27. However, it is actually immaterial when the heart attack, or coronary occlusion, happened if the evidence is sufficient to raise a fact issue that an accidental injury occurred on February 26 while he was within the course of his employment which triggered or set in motion a series of events which were the producing cause of appellee’s ultimate disability. That a strain or exertion is an accidental injury within the meaning of the Workmen’s Compensation Law of Texas is not open for dispute. Hartford Accident & Indemnity Co. v. Gant, Tex.Civ.App., 346 S.W.2d 359, 363, a coronary occlusion case very similar to the instant case; Midwestern Insurance Company v. Wagner, Tex.Civ.App., 370 S.W.2d 779, writ ref. n. r. e.; United States Fidelity and Guaranty Co. v. Herzik, Tex.Civ.App., 359 S.W.2d 914, writ ref. n. r. e.; Mountain States Mutual Casualty Company v. Redd, Tex.Civ. App., 397 S.W.2d 321, writ ref. n. r. e. From Traders & General Ins. Co. v. Rooth, Tex.Civ.App., 268 S.W.2d 539, 541, writ ref., n. r. e., we quote:

“Compensation benefits can be awarded if the workman, as a result of job exertion, sustains hemorrhages, ruptures or heart attacks, notwithstanding the fact that predisposing factors contribute to the incapacity or death. Texas Employers Ins. Ass’n v. Smith, Tex.Civ.App., 235 S.W.2d 234; Federal Underwriters Exchange v. Poison, Tex.Civ.App., 148 S.W.2d 956, W/E Dis.; Southern Underwriters v. Hoopes, Tex.Civ.App., 120 S.W.2d 924, W/E Dis.; Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581.”

In Texas Employers’ Ins. Ass’n v. Rogers, Tex.Civ.App., 368 S.W.2d 21, writ ref., n. r. e., a heart case, the accidental injury occurred December 1, 1960, but the resulting heart attack did not take place until December 27, 1960. The court held the facts sufficient “to support thé causal connection between the pain and physical strain caused by the rib injury with the heart damage.” In Lyles v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 365 S.W. 2d 819, writ ref., n. r. e., the injury occurred July 13, 1959, and the injured party died of an acute myocardial infarction June 8, 1960. A doctor testified that the incident of July 13 incited the sequence of events that produced the heart attack eleven months later. Other medical testimony was to the contrary. The appellate court reversed a summary judgment for the defendant, stating that a fact issue was present. In Federal Underwriters Exchange v. Poison, supra, the difference in time between the injury and the heart stroke was seven months, and a judgment for plaintiff was upheld.

The matter of aggravation of a preexisting heart and arteriosclerotic condition was plead alternatively by appellee, raised as an issue by the testimony of the medical witnesses, and submitted to the jury without objection in the definition of the term “injury”.

We agree with appellant that in a case such as this expert medical testimony should be presented to enable the court and jury to determine the issue of causation, Loper v. Andrews, Tex.Sup.Ct, 404 S.W.2d 300; Travelers Ins. Co. v. Blazier, Tex.Civ.App., 228 S.W.2d 217, writ dism., are cited by appellant on this proposition. Such evidence was introduced in this case.

All of appellant’s points of error are overruled. The judgment is affirmed.

      . Dr. Hicks, appellant’s heart specialist, testified that a coronary occlusion is the blocking of the coronary arteries, and that this leads to a myocardial infarction or, in lay language, a heart attack, i. e., that part of the heart muscle is deprived of its blood supply and such part dies.

      . Differing from Dr. Nixon, neither of appellant’s medical witnesses connected such heart condition with the occurrence on February 26, 1950.


author: RENFRO, Justice.

text:
    DRAKE COMPANY, Inc., Appellant, v. LESIKAR CONSTRUCTION COMPANY, Appellee.
    No. 16806.
    Court of Civil Appeals of Texas. Fort Worth.
    March 17, 1967.

      Miteff & Williams and Meto Miteff, Fort Worth, for appellant.
    Garrett & McGee and William T. McGee, Fort Worth, for appellee.
   OPINION

RENFRO, Justice.

Appeal from County Court at Law of Tarrant County.

It was alleged by the plaintiff, appellee herein, L. W. Lesikar, that he entered into a written contract with Drake Company, Inc., appellant herein, wherein appellant agreed to furnish all labor, materials, equipment and services necessary for the completion of all plumbing, heating, ventilating, air-conditioning and electrical work complete, in accordance with plans and specifications for the construction of a Sisters Residence at St. Andrews Parish in the City of Fort Worth; under terms of defendant’s subcontract it became obligated to service and maintain heating, ventilating and air-conditioning equipment for a one year period; defendant refused to perform such maintenance services, to plaintiff’s damage in the sum of $285.00.

Defendant filed a general denial.

At the conclusion of a non-jury trial, the court rendered judgment for plaintiff in the sum of $285.00.

Defendant argues the trial court erred in (1) allowing the contents of a written contract between the parties to be proved by parol evidence, and (2) giving judgment based on a breach of warranty in the written contract when the plans and specifications containing the warranty were not in evidence.

The primary contract between the parties was introduced in evidence.

Plaintiff testified, without objection, to the provisions of the warranty contained in the plans and specifications.

Later in the trial a copy of the warranty was read into evidence over defendant’s objection that the copy was not the best evidence. Apparently plaintiff satisfactorily explained the absence of the original to the court.

The president of defendant corporation admitted the execution of the contract and admitted the warranty was a part thereof. He did not deny any part of the warranty. In fact, there was no dispute as to any of the contents of the warranty.

Defendant relies upon the holding in Wann v. Metropolitan Life Ins. Co., Tex. Com.App., 41 S.W.2d 50, and Equitable Life Assurance Society of U.S. v. Nelson, Tex.Civ.App., 396 S.W.2d 517, to sustain its contention introduction of the plans and specifications was mandatory to sustain recovery for plaintiff.

It is to be noted that the court in the Wann case stated, “The group policy referred to in the certificate and rider was not offered in evidence, nor was any effort made to prove its contents.” (Emphasis added.)

In the Equitable case the questions of secondary evidence and waiver were not present.

It is a well established rule that even though it appears that the secondary evidence relates to a written document, if it is admitted without objection, or if objected to only upon another and untenable ground, the objection that it is secondary is waived, and the evidence so admitted (being perfectly relevant and only subject to objection under a technical rule of preference) is to be considered on appeal on the same footing as other competent evidence. McCormick and Ray, 2nd Ed., Vol. 2, p. 440, § 1579; 23 Tex.Jur.2d 324, § 211; Aetna Insurance Co. v. Klein, 160 Tex. 61, 325 S.W.2d .376 (Tex.Sup., 1959); State v. Brown, 257 S.W.2d 796 (Tex.Civ.App., 1953, no writ hist.); Vineyard v. Harvey, 231 S.W.2d 921 (Tex.Civ.App., 1950, writ dism.); Matlock v. Glover, 63 Tex. 231 (1885); Luse v. Rogers, 159 S.W.2d 924 (Tex.Civ.App., 1942, no writ hist.).

The defendant having waived any tenable objections it might have had to the secondary evidence, and there being no other points before us, the judgment is affirmed.

Affirmed.


author: BATEMAN, Justice.

text:
    W. C. Jack MILLER, Appellant, v. George AARON, Appellee.
    No. 16886.
    Court of Civil Appeals of Texas. Dallas.
    March 3, 1967.
    Rehearing Denied March 24, 1967.

      Bill C. Hunter, of Passman, Jones, Stewart, Andrews & Hunter, Dallas, for appellant.
    Andrew J. MacMaster, Dallas, for appel-lee.
   BATEMAN, Justice.

The appellant W. C. Jack Miller appeals from a summary judgment in favor of ap-pellee George Aaron, upon a promissory note for $10,000, negotiable in form, dated February 8, 1964 and due August 1, 1965. The appellant filed a verified plea of nudum pactum.

By filing his motion for summary judgment under Rule 166-A, Vernon’s Texas Rules of Civil Procedure, appellee assumed the burden of showing the absence of any genuine issue as to any material fact and that he was entitled to judgment as a matter of law, with all conflicts in the evidence being disregarded and the evidence viewed in the light most favorable to appellant, with all evidence tending to support appellant’s position being accepted as true, and all doubts as to the existence of a genuine issue of a material fact being resolved against appellee. Moreover, if the credibility of affiants or deponents, or the weight of their statements, or a mere ground of inference, are involved, appellee must be held to have failed to show himself entitled to summary judgment. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., Tex.Sup.1965, 391 S.W.2d 41, 47. By his first two points of error on appeal, appellant asserts that appellee failed to carry that burden in that there were genuine issues of fact as to whether there was a valid consideration for the note.

Vernon’s Ann.Civ.St., Art. 5933, Sec. 24 provides: “Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.”

It appears from the undisputed evidence that in 1962 certain land was owned by several persons, including appellant and ap-pellee; that in October 1962 they contracted to sell the land to R. H. Lawrence and one Mclnroe, in connection with which Lawrence deposited $25,000 with a title company as “earnest money”; that this money was “released” to the sellers and when the sale was subsequently rescinded they became obligated to repay the $25,000 to Lawrence; that thereafter appellant dealt with his co-owners individually for the purchase of their respective interests in part of the land, and in August 1963 they all signed a contract of sale and a deed conveying the land to appellant. However, appellee testified by deposition (and it was not disputed) that he would not and did not sign the contract until appellant orally agreed, not only to reimburse Lawrence for the $25,000 he had deposited, thus relieving appellee and the other owners of their obligation in this respect, but also to pay appellee an additional sum of approximately $42,000 over and above the consideration recited in the contract, and that in February 1964 appellant prevailed upon him to accept promissory notes totaling $20,000 in satisfaction of such indebtedness. At that time appellant executed two promissory notes payable to appellee, each for $10,000, one being the note sued on and the other bearing a maturity date subsequent to the filing of this action. He also executed two notes payable to Lawrence, each for $12,500.

Appellee signed a letter bearing the same date as the said promissory notes, apparently in connection with the execution of the notes, addressed to appellant, in which it is stated that the notes are given as part of the settlement agreement “settling all of our differences” arising out of the sale of the land. In this letter appellee also agrees to release and discharge appellant “of and from any and all claims and causes of action arising out of the sale of said land,” excepting only certain obligations assumed by appellant as expressed in the letter, not material to the matter under discussion. Appellant also signed in the margin of this letter under the word “ACCEPTED.”

We are of the opinion that a valid consideration for the note sued on was shown. In the first place, the letter above mentioned indicates quite clearly that there was a controversy between the parties which was compromised and settled at the time the promissory note sued on was given. The letter corroborates appellee’s deposition testimony to that effect. It is well settled that the compromise and settlement of a disputed claim is a valid consideration for a promissory note, even though it later appears that the claim was without merit. 11 Am.Jur.2d, Bills and Notes, § 231, p. 260 ; 9 Tex.Jur.2d, Bills and Notes, § 46, p. 58; Citizens Garage Co. v. Wilson, Tex. Civ.App., 252 S.W. 186, no wr. hist.; Aydelotte v. Anderson, Tex.Civ.App., 284 S.W. 2d 804, wr. ref. n.r.e.; Hunter v. Lanius, 82 Tex. 677, 18 S.W. 201.

In Peaslee v. Walker, 34 Tex.Civ.App. 297, 78 S.W. 980, wr. ref., it was held that the compromise of a suit for the recovery of land, where the defendant held under a valid grant and the plaintiff under a void grant, was a sufficient consideration for notes given by the defendant. See also Dooley v. Gray, Tex.Civ.App., 54 S.W.2d 558, wr. dism.

In the second place, we think appellant was at least under a moral obligation to pay the additional compensation demanded by appellee for his interest in the land. It is well settled that a moral obligation is a sufficient consideration for a subsequent promise of the debtor to pay in the case where the original debt is barred by limitations or the bankruptcy or insolvency laws. 13 Tex.Jur.2d, Contracts, § 68, p. 210. We think the same principle is applicable here. As said in Simpson v. Williams Rural High School Dist., Tex.Civ.App., 153 S.W.2d 852, 855, wr. ref.:

“The law is that when an obligation is extinguished by operation of law instead of by payment or satisfaction thereof by the debtor, a moral obligation to pay remains and this is a sufficient consideration for the new promise.”

Appellant argues that, since the contract of sale of August 1963 did not mention this additional compensation, but did provide, in paragraph 12, that it embodied the entire agreement between the parties, any prior or simultaneous oral agreement was merged therein and, that being true, there was no controversy which could be the subject of compromise in February 1964, and that therefore there was no consideration for the note. We do not agree with appellant.

The rule relied upon by appellant is more commonly known as the parol evidence rule. This rule, which has been held to be a rule of substantive law, and not merely a rule of evidence, is defined by McCormick & Ray, Texas Law of Evidence, 2d Ed., Vol. 2, § 1601, p. 444, as “the rule which, upon the establishment of the existence of a writing intended as a completed memorial of a legal transaction, denies efficacy to any prior or contemporary expressions of the parties relating to the same subject-matter as that to which the written memorial relates.”

To deny efficacy, or effectiveness, to the prior or contemporary agreement is not to declare it so completely devoid of life as to be beyond resurrection by appropriate and legally acceptable agreement. It is denied efficacy because it was in such form as failed to comply with the rule mentioned. From appellee’s point of view, it was an integral part of his whole agreement with appellant. He in good faith thought he was entitled to enforce the entire agreement. Appellant’s contention to the contrary made it a dispute of such a nature as to be subject to compromise settlement, and there is nothing in the law to discourage, much less prohibit, the compromise of a claim based upon such a prior or contemporaneous agreement. “The policy of the law discourages litigation and favors the amicable settlement of controversies by compromise.” 12 Tex.Jur.2d, Compromise and Settlement, § 2, p. 287. See same text, § 9, pp. 293-4.

A very similar situation was before the Supreme Court of Kansas in Hurless v. Wiley, 91 Kan. 347, 137 P. 981. Wiley sold Hurless a tract of land at $25 an acre. A week after execution of the contract Wiley signed and delivered to Hurless an agreement to find a purchaser for the land at $30 an acre within the ensuing year. No buyer was found, and Hurless sued Wiley for breach of this contract. Lack of consideration was pled, but it was established that at the time the first written contract was made Wiley had orally agreed to find a buyer at $30 an acre within the year, which agreement was a part of the inducement for the purchase, and that the subsequent writing to that effect was given to evidence the prior oral agreement. The court held that this agreement was supported by a valid consideration, saying:

“If originally the buyer would not have been permitted to show that at the time of his purchase, and as an inducement thereto, the seller orally agreed to find a new buyer at an advanced price within the year, the reason is that the law protects the seller from having his documentary evidence overthrown by mere word of mouth. When he reduced the promise to writing the requirement of the law was met. The reason for his protection no longer existed. Oral evidence was necessary, not to prove the promise, but to show for what it was given. A consideration was implied from the contract being in writing, and its character was properly shown by parol.”

Appellant’s first and second points of ■error are therefore overruled.

By his third, fourth and fifth points of error on appeal the appellant contends the summary judgment was erroneous in that appellee’s claim against him was unenforceable by reason of the Texas Real Estate Licensing Act (Art. 6573a, V.A.C.S.), the Statute of Frauds (Art. 3995, V.A.C.S.), and the Statute of Conveyancing (Art. 1288, V.A.C.S.). We see no merit in any of these points. Appel-lee’s suit is not for a broker’s commission or similar compensation for the sale of real property requiring him to be licensed under the Real Estate Licensing Act; nor is the suit brought on an oral agreement proscribed by the Statute of Frauds; nor is any violation or infringement of the Statute of Conveyancing shown. Appellant’s claim, as we understand it, is that the promissory note was given to satisfy a claim for brokerage, to which appellee would not have been entitled because not licensed as a broker, and that it had its origin in an oral agreement which was unenforceable because of the Statute of Frauds. The claimed relevance of the Statute of Conveyancing is not made clear. However, as we see it, none of these statutes is applicable here. The suit is upon a promissory note given as a part of a compromise settlement of a claim based on an oral agreement to pay, not a broker’s commission but a part of the purchase price of land. That being true, liability on the note cannot legally be avoided merely by showing that the claim thus compromised could not have been enforced in its original form because of either of the statutes mentioned. Appellant’s third, fourth and fifth points of error are overruled.

Appellant has not carried the burden of persuading us that the trial court committed reversible error in rendering the summary judgment. It is our view that appellee carried his burden, cast upon him by appellant’s sworn denial of consideration, of showing that there was valid consideration for the note as a matter of law, and that there was no genuine issue as to any material fact in connection therewith. Alexander v. Houston Oil Field Material Co., Tex. Civ.App., 386 S.W.2d 540, wr. ref. n. r. e.; Lewis v. Ada Employees Credit Union, Tex.Civ.App., 383 S.W.2d 864, wr. ref. n. r. e. Accordingly, the judgment appealed from is

Affirmed.

      . This statute, although repealed effective June 30, 1966, was in force at all times material herein.

      . Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30; McCormick & Ray, Texas Law of Evidence, 2d Ed., Vol. 2, § 1601, p. 444; Graham v. Huff, Tex.Civ. App., 384 S.W.2d 904, no wr. hist.; Edens v. Duncan, Tex.Civ.App., 331 S.W.2d 810; Restatement, Contracts, § 237, p. 332.


author: HUGHES, Justice.

text:
    FERRIS BRICK COMPANY, Appellant, v. Rev. D. P. PRICE, Appellee.
    No. 11488.
    Court of Civil Appeals of Texas. Austin.
    March 22, 1967.

      Gardere, Porter & DeHay, Gordon H. Rowe, Jr., Dallas, for appellant.
    McKool, McKool & Jones, James H. Bil-lingsley, Dallas, for appeal.
   HUGHES, Justice.

Rev. D. P. Price, appellee, sued R. D. Baker and appellant, Ferris Brick Company, a corporation, to recover damages for personal injuries allegedly sustained as a result of a collision between a truck belonging to appellant and then being operated by Baker, its employee, with an automobile which appellee was driving. Damages also were sought for repairs which ap-pellee was obliged to make to car he was driving.

The case was tried to a jury on whose verdict judgment was rendered for appel-lee jointly and severally against Ferris and Baker for the sum of $8,000.00. This judgment was signed and entered of record April 6, 1966. Appellant filed its motion for a new trial April 14, 1966, and an amended motion for new trial on May 4, 1966. This motion was set for hearing and heard by the court on May 13, 1966. This amended motion for a new trial was granted by an order entered July 8, 1966. This order recited notice of appeal.

There is an uncontroverted affidavit in the transcript executed by attorneys for appellee that no agreement, in writing or otherwise, was entered into to postpone the determination of appellant’s amended motion for a new trial to a date later than 45 days after the date it was filed.

On July 15, 1966, appellant filed a super-sedeas bond which was duly approved. This bond recited that the appeal was taken only in the event “that the validity of the trial court’s order of July 8, 1966 (granting a new trial) should be decided adversely to it.”

Appellant’s first point is to the effect that the order of the trial court in granting it a new trial was a valid nonappealable order and that this appeal should be dismissed.

We sustain this point and dismiss the appeal. We do not discuss appellant’s second and remaining point which relates to the merits of the appeal.

Appellant’s motion for a new trial and amended motion for new trial were timely filed. Rule 329b, Texas Rules of Civil Procedure.

The amended motion was not determined by the trial court within 45 days from the date on which the amended motion was filed as required by the above rule and no agreement postponing the date of such determination having been made as authorized by the above Rule it was overruled by operation of law on the expiration of such 45 day period. Texas Van Lines, Inc. v. Templeton, 305 S.W.2d 646, Dallas Civ. App., writ ref., n. r. e. The date, then, on which appellant’s amended motion for a new trial was overruled by operation of law was June 18, 1966. The first and only action taken by the court on appellant’s amended motion for a new trial was to grant it by order dated July 18, 1966. This order was entered within thirty days following the date on which such motion was overruled by operation of law. Section 5 of Rule 329b provides, in part, that judgments shall become final after the expiration of thirty days after the date of rendition of judgment or order overruling motion or amended motion for a new trial. The courts have held that during such period the trial court has control of such judgment or order and may “correct, amend or set it aside, with or without a motion.” Herrera v. Talbert, 316 S.W.2d 952, San Antonio Civ.App., n. w. h.

The effect of granting the motion for new trial was to set aside the judgment previously rendered, and from such an order no appeal is provided. McAdams v. Starnes, 262 S.W.2d 735, El Paso Civ.App., writ ref., n. r. e.

We have no jurisdiction of this appeal; it is dismissed.

Appeal dismissed.

      . June 18,1966 was a Saturday, but this fact is of no materiality here.


author: GRISSOM, Chief Justice.

text:
    The TEXAS AND PACIFIC RAILWAY COMPANY, Appellant, v. Nick J. NABHAN et ux., et al., Appellees.
    No. 4137.
    Court of Civil Appeals of Texas. Eastland.
    March 11, 1967.
    Rehearing Denied April 7, 1967.
    Jim Gallagher and Schuyler R. Marshall, of Scott, Hulse, Marshall & Feuille, El Paso, for appellant.
    Abraham & Chagra, El Paso, for appellees.
   GRISSOM, Chief Justice.

Mrs. Nabhan and her minor daughter were trapped in the Nabhan’s automobile between others on the tracks of the Railway Company; their car was struck by its backing train and they were injured. In their suit for damages, based upon a jury verdict, judgment was rendered for the Nabhans and the Railway Company has appealed.

The Railway Company’s first contention is that the first three issues and the answers thereto did not submit, nor was there a finding, of an ultimate issue which could be the basis for the judgment. In answer to said issues the jury found that (1) the Railway Company’s agent instructed Mrs. Nabhan to drive forward when such movement could not be made in safety; that (2) the agent was negligent in so directing Mrs. Nabhan and that (3) his said act was a proximate cause of the accident.

The Railway Company’s evidence was to the effect that there were several railroad tracks crossing the street and highway on which the Nabhans were traveling; that Mrs. Nabhan stopped her automobile with its front hanging over the first rail on the south; that defendant’s train had passed over the crossing going west and the engine and first cars were out of sight around a bend; that the agent gave a signal to another trainman, who relayed it around the bend to the engineer, for the train to back east over track 6 at the crossing. It was disputed whether the agent gave the signal for the train to back up after or before he saw Mrs. Nabhan’s position and directed her to drive forward across the tracks. The agent testified that he saw the front of Mrs. Nabhan’s car over the southernmost rail and that he repeatedly directed her to move forward; that when he directed her to move forward he had not seen an automobile stopped on the north side of the tracks, if it was then stopped, so close that Mrs. Nabhan could not get completely off the track on the North side onto which the train was switched and backed, causing the rear end of her car to be struck by the train. The testimony for the Nab-hans in this regard was to the effect that Mrs. Nabhan stopped her car in the street, not with its front end projecting over the rail, as the agent testified; that the agent motioned for her to move forward, or north, across the tracks; that she hesitated and he insisted again and again that she move forward, whereupon, not seeing the engine and not knowing the exact situation, she concluded that he should know better than she what ought to be done, she obeyed his instruction and tried to cross the tracks, got to the north side of the series of tracks but was unable to get the rear end of her automobile off the northern track, onto which the backing train was switched, because an automobile was stopped in front of her close to the track preventing her from getting completely off the tracks; that by that time a line of cars had also formed back of her, to the south, so she could not back off the tracks, a line of cars was north of the tracks travelling south; that she saw the train switched onto the track on which she was trapped but she was unable to move in any direction and was trapped there and the backing, switched train struck the rear end of her automobile turning it around and injuring Mrs. Nabhan and her minor daughter. There was evidence to the effect that said agent did not give the signal for the train to back over the crossing until after he ordered Mrs. Nabhan to drive forward and that the backing train was thereafter switched onto the track on which she was trapped and struck.

Appellant ably argues that the ultimate issue was whether Mrs. Nabhan was ordered to move forward “from a position of safety.” It admits she was ordered to drive forward. A study of the evidence convinces us that said distinction is immaterial under the circumstances. The jury also found that (6) just before the accident Mrs. Nabhan could not have driven her automobile around the left side of the automobile which had stopped to the north and in front of her; that (9) the action of the driver of that automobile in remaining stopped in front of her was not the sole proximate cause of the accident and that (10) the accident was not unavoidable.

If the evidence of the Railway Company was correct and Mrs. Nabhan had remained where the brakeman says she was when he first motioned for her to move forward she merely had the front of her car over the first rail on the south side and at that stage she might have backed off the track, or driven around other cars and the train, which was switched onto the track where she was trapped as a result of obeying the brakeman’s orders, might not have struck her. If she was stopped in the street south of the south track, as Mrs. Nabhan says she was, the same thing is true, plus the fact that she could have disobeyed the agent and refused to move forward onto the railway tracks. So, we conclude that, under the circumstances, the court substantially submitted the ultimate issues upon which a judgment could be based. The findings were, in effect, that the agent ordered Mrs. Nabhan to move forward across its tracks. This is undisputed. It was a question of fact whether at that time, regardless of whether Mrs. Nabhan was or was not then in a position of safety, whether the movement required by the agent could have been safely made. The jury found that such undisputed action of the agent was negligent and a proximate cause of the collision. If, as the jury found, Mrs. Nabhan was ordered to cross the track when she could not safely do so, and this caused the collision, it would not appear to be controlling whether at the time such order was given Mrs. Nabhan was in a position of safety or otherwise. We think the cases cited by appellant do not require a contrary holding. Points 1 through 7, inclusive are overruled.

In answer to issue 12 the jury found that $567.95 would compensate Mrs. Nabhan for reasonable and necessary expenses incurred from the date of the accident to the time of trial for hospital, doctor and x-ray bills as a proximate result of the alleged injuries. In answer to issue 13A the jury found that $350.00 would compensate Mrs. Nabhan for the reasonable and necessary expenses for household help from June 30, 1965, to date. In answer to 13B it found that $450.00 would compensate her for household help which would be required in the future as a proximate result of the alleged injuries. In answer to issue 14A the jury found that $400.00 would compensate Mrs. Nabhan for personal earnings she would lose in the future as a proximate result of the accident.

Over proper objection, evidence was admitted as to hospital and doctor bills incurred and terrible suffering endured during Mrs. Nabhan’s second period of confinement in a hospital, from July 7 to July 14, 1965. In connection therewith Mrs. Nabhan testified over proper objection to severe pain, headaches and hysterical crying spells induced, according to her testimony, by pain that was greater than she could bear. The question of expenses incurred for hospital bills, doctor bills, and the like during said second period of hospital confinement was submitted to the jury, and included in the jury’s answer of $567.95 to issue 12. This was permitted in spite of the fact that all the testimony, including that of Mrs. Nab-han’s doctor was to the effect that confinement in the hospital from July 7th to July 14th and the terrible pains testified to during that period had no connection with the accident but were cat ¡sed by the flu. Such evidence certainly affected the answer to issue 12 wherein the jury found damages in the amount of $567.95 including hospital and doctor bills covering the period when she was suffering only from the flu. Such testimony naturally appealed to the sympathies of all people and in all probability affected and tainted the jury’s answers to issues 13A and B and 14A and B, causing the jury to find larger amounts of damage than it probably would have otherwise. State v. Hilton, Tex.Civ.App., 405 S.W.2d 715. Such action was unquestionably erroneous. It was reasonably calculated to cause and probably did cause a larger verdict and judgment than otherwise would have been returned and rendered. We have considered whether or not we could, with reasonable certainty, require a remittitur that might cure such errors and have concluded that it is impossible. Therefore, the judgment in favor of Mrs. Nabhan is reversed and the cause as to her is remanded.

The jury found damages suffered by June Nabhan. No reversible error is shown in connection therewith. The judgment for June Nabhan against the Railway Company is affirmed. Affirmed in part and in part reversed and the cause remanded.


author: STEPHENSON, Justice.

text:
    HOUSTON CHRONICLE PUBLISHING CO. et al., Appellant, v. John FLOWERS, Appellee.
    No. 6880.
    Court of Civil Appeals of Texas. Beaumont.
    March 16, 1967.
    Rehearing Denied April 5, 1967.
    Liddell, Austin, Dawson & Sapp, Houston; Orgain, Bell & Tucker, Beaumont, for appellant.
    Adams & Browne, Beaumont, for ap-pellee.
   STEPHENSON, Justice.

This is an appeal from orders overruling defendant’s pleas of privilege and denying defendant’s motions to sustain its pleas of privilege on the grounds that plaintiff had waived his controverting plea by abandonment. The parties will be referred to here as they were in the trial court.

Defendant’s first point is that plaintiff waived any venue rights he had by failure to request and obtain a prompt hearing on his controverting plea. The record shows: The original petition was filed October 4, 1962. Defendant filed pleas of privilege October 19, 1962. Plaintiff filed a controverting plea October 29, 1962 and an order was signed by the trial judge setting a hearing for November 30, 1962. This hearing was passed by agreement. May 13, 1965 attorney for plaintiff wrote the judge of the trial court a letter requesting a setting of the case. The case was set and reset several times until heard on these motions and pleas of privilege June 10, 1966. Defendant argues that the period of inactivity was three years and four months while plaintiff contends it was two years and six months. On the hearing of the motions that plaintiff had waived his venue rights, the attorney for plaintiff testified that he had been busily engaged in the practice of law, but that the primary reason for the delay was the unsettled condition of the county politics due to a “cleanup” campaign and the fact that it would have been difficult to secure a jury verdict under such climate.

Defendant cited this court the case of Hargrove v. Koepke, 320 S.W.2d 53, in which it was held by the San Antonio Court of Civil Appeals that the circumstances of that case in which nothing was done for a period of four years and nine months, constituted abandonment of the controverting plea for lack of diligence. Defendant also cited Farr v. Jefferson Amusement Co., 396 S.W.2d 434, in which the Texarkana Court of Civil Appeals affirmed a trial court which held that a delay of four years and three months constituted abandonment. Defendant also relies upon Rule 87, Texas Rules of Civil Procedure, in which it is stated in part:

“ * * * Such hearing, unless the parties agree upon the date, shall not be had until a copy of such controverting plea, including a copy of such notation thereon, shall have been mailed by registered mail to the defendant or his attorney at the post office address stated in such plea of privilege, or shall have been delivered to defendant or his attorney, at least ten days before the date set for hearing, after which the court shall promptly hear such plea of privilege and enter judgment thereon * * * ”

Plaintiff cites the case of Gourley v. Fields, 348 S.W.2d 787, by the Eastland Court of Civil Appeals. In this case plaintiff filed his controverting affidavit, but did not have the trial judge note a time for hearing on such controverting plea and did not have such plea served upon the defendant or his attorney as required by Rule 87, T.R.C.P. The plea of privilege was filed June 8, 1960 and the controverting affidavit was filed June 18, 1960. September 24, 1960 defendant’s attorney was notified by the district clerk that there would be a non-jury hearing in the case October 10, 1960. On the date of the hearing plaintiff filed an amended controverting affidavit and then secured a hearing for October 28, 1960 at which time the court heard the plea of privilege. This court held that the provision of Rule 87 for a prompt hearing was directory only and also the following:

“The failure of a plaintiff to procure a prompt determination of a plea of privilege or to prove that the business of a court did not permit the plea to be promptly heard at the term therefore does not as a matter of law- constitute a waiver of plaintiff’s right to contest the plea of privilege.”

citing Farrar v. Anglin, Tex.Civ.App., 273 S.W.2d 665; Ragland v. Short, Tex. Civ.App., 245 S.W.2d 368, (Mand.Overr.); Roddy v. Denton County, Tex.Civ.App., 280 S.W.2d 793 (Writ Dis.).

In the case of Smith v. Crockett Production Credit Ass’n, 372 S.W.2d 954, by the Houston Court of Civil Appeals, although the specific times and dates are not set forth, the following is stated by the court:

"There is no merit in appellant’s contention that the pleas of privilege should have been sustained because appellees failed to obtain a timely hearing. A hearing was held and action taken by the court prior to trial on the merits.”

citing Narveson v. Nock, 214 S.W.2d 842 (Tex.Civ.App., n. w. h.); Ragland v. Short, 245 S.W.2d 368 (Tex.Civ.App., app. writ of mandamus overruled); Gourley v. Fields, 348 S.W.2d 787 (Tex.Civ.App., n. w. h.).

In the case of F & C Engineering Co. v. C. F. Bryan and V. V. Steptoe, 320 S.W. 2d 435, by the Austin Court of Civil Appeals in which there was a delay of about one and one-half years, the court stated as follows:

“The fact that the hearing on the plea of privilege was passed by agreement is not controverted and there is no showing of any action taken at a subsequent time. This does not operate as a waiver of venue by appellees.”

citing Ragland v. Short, 245 S.W.2d 368, (Tex.Civ.App.) mand. overruled; Narveson v. Nock, 214 S.W.2d 842, Tex.Civ.App.; Farrar v. Anglin, 273 S.W.2d 665, Tex. Civ.App.

It is our conclusion that a reasonable construction to be placed upon that portion of Rule 87, T.R.C.P., referring to a prompt hearing, is to suggest to the trial courts that hearings upon pleas of privilege should be given a certain degree of priority so they may be disposed of before a trial on the merits. Trial courts are authorized to dismiss any cause, whether involving a plea of privilege or not, because of lack of prosecution. We feel that the trial court must be allowed wide latitude in making determination of such questions. We find no abuse of discretion in this case on the part of the trial court in denying such motion.

Defendant’s second point of error is that plaintiff failed to prove a cause of action. Plaintiff relies upon Subdivision 29, of Article 1995, Vernon’s Ann.Civ.St., which provides that suits for libel shall be brought in the county in which plaintiff resided at the time of the accrual of the cause of action. The uncontradicted testimony shows that plaintiff resided in Jefferson County, where this suit was brought, on October 8, 1961 and that the article complained of was published and distributed by the defendant in Jefferson County on such date. A long article appeared in the American Weekly which was inserted into and distributed with the Houston Chronicle on October 8, 1961. The headline to the article was “Corruption of a City” and the portion complained of read as follows:

“Even as a divided Jefferson County is trying to make itself over, its 250,000 residents have begun playing an exciting little game: Who is Mr. Big?
‘There are certain basic assumptions made by the players of The Game:
‘1. Mr. Big is local, one of their own —not Snydicate or Mafia.
‘2. He is clever, respected and prosperous — although his friends and neighbors have no idea how rich he is.
‘3. He is a brilliant organizer.
‘None of the men named before the state committee could have put this great combination together,’ I was told. Why not? One was a heavy drinker, another an amiable but fuzzy-headed thinker, a third ‘couldn’t organize himself out of a paper bag.’ And so on.
‘The whispered nominations for Mr. Big range widely: a banker, a lawyer, a labor leader, a former political figure. But no one knows for sure — no one except Mr. Big, who watches glumly as his carefully put-together network of crime and corruption comes to a profitless halt.
‘At the moment Mr. Big’s major fear stems from more than 25 federal Internal Revenue agents in Jefferson County prowling through thousands of bank and tax records. “We expect to have agents on this case a long, long time,” William G. Hundley, Special Assistant to Attorney General Robert Kennedy, told me.
‘Even after we find out who Mr. Big is we’ll have a lot of work here,’ UCLE president George Dishman told me. ‘We have to clean up Jefferson County so well that Mr. Big can’t have a successor here.’
‘The county’s ordeal isn’t over. UCLE now has 12,000 paying members. Gambling is shut down and nearly all the prostitutes have left. Opposition comes from a Citizens for Democratic Law and Order which says UCLE is creating a vigilante atmosphere, that any investigating should be done by county officials, not by state or federal agencies.' The Chairman of CDLO is John Flowers, a burly union business agent of the boilermakers. Flowers rules his union with iron — a boilermaker doesn’t get a day’s work unless he gets the .nod from Flowers. But hundreds of union men are active in the UCLE cleanup forces. So are their wives’.”

Article 5430, V.A.C.S., defines libel as follows :

“A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury.”

Plaintiff testified that two portions of the article hurt him most. First, the insinuation that he was “Mr. Big” and connected with gambling and prostitution, and second, that he was burly and ruled his union with iron and that a boilermaker doesn’t get a day’s work unless he gets a nod from Flowers. Plaintiff also testified: That he was not “Mr. Big”. That he was not connected with gambling or prostitution. That he was not burly. That it was not true that he ruled his union with iron and a boilermaker doesn’t get a day’s work unless he gets a nod from Flowers. That at the time of publication of the article complained of, plaintiff was business agent of the boilermakers local union, but was defeated for re-election because of the article. That plaintiff made less money after the article than before.

The trial court by overruling the pleas of privilege found that plaintiff had alleged and proved a cause of action. No jury having been requested, all findings of fact as well as the law were left to the trial court. The trial court must have found that the article printed reasonably conveyed the meaning ascribed to it by plaintiff, that is the innuendo that plaintiff was “Mr. Big” and therefore connected with gambling and prostitution both being crimes in this state. The judgment entered by the trial court is also a finding that the statement in the article about plaintiff ruling his union with iron exposed plaintiff to public hatred, contempt or ridicule, or financial injury thereby injuring his reputation. Either of these findings is defamatory in character. The point is overruled.

Judgment affirmed.