text:
    Luther CLARK, Appellant, v. The STATE of Texas, Appellee.
    No. 38891.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    Harry A. Nass, Jr., San Antonio (Court Appointed Counsel on Appeal Only), for appellant.
    James E. Barlow, Dist. Atty., Charles T. Conaway and Richard M. Casillas, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for incest; the punishment, seven years.

While testifying, the prosecutrix, age 13, identified the appellant as her father, with whom she had been living before December 6, 1964, and also living with them were six sisters and brothers of the twelve children in the family; and stated that on December 6, her mother returned home from West Texas where she had been several months picking cotton. The prose-cutrix testifed that about two weeks before December 6, the appellant told her to lie down on the front seat of the car which was parked near the house, and he then placed his private parts into hers, and when he was through he told her to go to bed, and she did not fight him because she was afraid he would whip her. She further testified that the appellant had had four acts of intercourse with her but she stated the facts as to only two of them which she said occurred on December 6, and about two weeks before that date.

John, age 14, the brother of the prose-cutrix, testified that one night about two weeks before December 6, one of his sisters alerted him and on looking through the window he saw the prosecutrix in tlie car with her legs open and his father on top of her.

Testifying in his own behalf, the appellant denied having any act of intercourse with the prosecutrix, and testified that his wife was mad because she thought he was running around with another woman, and she had framed this to get rid of him.

Appellant challenges the sufficiency of the evidence to corroborate the testimony of the prosecutrix.

The court instructed the jury that the prosecutrix was an accomplice as a matter of law; and then instructed the jury upon the law requiring the corroboration of the testimony of the accomplice witness before they could convict the appellant.

No motion was made to require the state to elect the act upon which it relied for a conviction. The state did not elect and the court made no election for the state.

The offense is alleged to have been committed on or about December 6, and the charge to the jury follows said allegation as to the date. A general verdict was returned finding the appellant guilty of incest as charged in the indictment.

The testimony of the brother of the prosecutrix sufficiently corroborates that of the prosecutrix as to the act which she testified occurred in the car.

There are no formal bills of exception; and no objections to the court’s charge.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

author: WOODLEY, Judge.

license: Public Domain

text:
    Gerald Noble HOFFMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 38626.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Rehearing Denied Jan. 19, 1966.
    Bob Carroll, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and I. D. Mc-Master, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is drunk driving; the punishment, 21 days in jail and a fine of $100.

The evidence shows that appellant was identified as the driver of a motor vehicle which police officers observed being driven in both lanes on Holmes Road in Harris County. The officers who stopped him testified as to their observation of appellant, the odor of alcoholic beverage on his breath, the way he walked and talked, and expressed the opinion that he was intoxicated.

Analysis of a sample of appellant’s blood, taken with his consent, was found by Houston Police Chemist Floyd McDonald to contain 0.23 percent alcohol.

Mr. McDonald testified that he had conducted or assisted in conducting many experiments correlating the amount of alcohol in the blood with the condition of the individual as to intoxication. He further testified that the person from whom the blood sample he analyzed was taken would have been intoxicated at the time the blood was taken.

Appellant’s first ground for reversal relates to the following portion of Mr. McDonald’s testimony:

“Q. Mr. McDonald, it is your testimony anyone who achieves 0.10 percent is intoxicated regardless of his resistance to alcohol, is that correct?
“A. Yes, sir, that is correct.
“Q. Are there any other authorities who share in that opinion?
“MR. CARROLL: Objection.
“THE COURT: The objection is overruled.
“MR. CARROLL: Note our exception.
“Q. (By Mr. McMaster) Would you cite to the jury some of the authorities you are familiar (with) who share your opinion?
“MR. CARROLL: To which we object, to his bolstering his witness.
“THE COURT: Overruled.
“MR. CARROLL: Note our exception.
“THE WITNESS: Do you want individuals or organizations?
“Q. Organizations.
“A. Well, the two largest the American Medical Association unanimously adopted the same conclusion and the National Safety Council and Committee on Alcohol and Drugs also arrived at the same conclusion.
“MR. CARROLL: Your honor, at this time we ask that it be striken from the record.
“THE COURT: Overruled.”

We see no error. An expert in giving opinion testimony may corroborate his opinions by referring to scientific authorities. Jones v. State, 159 Tex.Cr.R. 29, 261 S.W.2d 161; Piester v. State, 161 Tex.Cr.R. 436, 277 S.W.2d 723.

Appellant’s remaining claim of error is presented by formal bill of exception which certifies that in his closing argument to the jury counsel for the state said: “It is uncontroverted that the National Council on Safety does share in it.”

The state correctly contends that the bill is deficient in that it does not of itself manifest the error complained of. Brown v. State, 171 Tex.Cr.R. 692, 353 S.W.2d 425; Graves v. State, 169 Tex.Cr.R. 595, 336 S.W.2d 156.

The evidence is sufficient to sustain the conviction and we find no' reversible error.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Ex parte Paul Bruce STOKER.
    No. 39262.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was charged by complaint in Justice Court, Precinct 7, of Bowie County, with the offense of assault with intent to murder. Bail was set by the justice of the peace in the sum of $20,000.

By petition for writ of habeas corpus filed in the Fifth Judicial District Court of Bowie County, appellant sought a reduction of the bail and offered proof of his financial inability to make bond in the sum fixed by the justice of the peace and of his attempt to make a bond in such amount.

This is an appeal from an order entered by the district judge, refusing to reduce the amount of bail, and remanding appellant to custody.

We have carefully reviewed the evidence adduced upon the hearing and find that the amount of bail fixed by the justice of the peace is excessive and that the same should be reduced.

The judgment of the trial court refusing to reduce the amount of bail is reversed, and appellant’s bail is fixed at the sum of $5,000.

Opinion approved by the Court.


author: SELLERS, Justice.

text:
    Wilbur Jack SCOTT, Appellant, v. The GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Appellee.
    No. 178.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 2, 1965.
    Rehearing Denied Jan. 6, 1966.

      Earl Luna, Luna & Vaughan, Dallas, for appellant.
    Larry M. Lesh, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.
   SELLERS, Justice.

This suit was instituted in the court below by appellant, Wilbur Jack Scott, against the Guardian Life Insurance Company of America for recovery under an insurance policy.

On the 24th day of February, 1955, the Guardian Life Insurance Company of America issued to the appellant its policy of insurance No. E-9656, same being a major medical expense policy, whereby said company agreed to pay certain medical expenses incurred for the medical care and treatment of a covered person by reason of sickness or injury.

On September 11, 1962, appellant’s son, Jack W. Scott, a covered person under said policy of insurance, was confined and is confined in a hospital, same being the Devereux Foundation, located at Victoria, Texas, as a patient for a nervous disorder. The charges for his treatment, care, medical expenses and therapy amounted to the sum of $450.00 per month, for which the appellant filed suit in the court below. After filing an answer in this case, appel-lee, the Guardian Life Insurance Company of America, filed a motion for summary judgment. Appellant filed an answer to the motion for summary judgment, stating that the depositions, pleadings and affidavits filed herein show that there are questions of fact to be decided by the jury.

The trial court, after considering the depositions, pleadings and affidavits on file, entered its order sustaining the appel-lee’s motion for summary judgment.

It is apparent from the brief of the appellant, as well as brief of the appellee, that the trial court sustained the motion for summary judgment filed by the appellee on the theory that the Devereux Foundation of Victoria, Texas, where the child was confined, did not meet the requirements of a hospital as defined in the policy, and on this claim only, and the case on the merits never reached the trial court. The policy of insurance provides:

“The Company will not pay any benefits for any of the following charges, nor may they be applied to the satisfaction of the applicable deductible amount. * * * 4. Charges for the care or treatment of mental or nervous disorders, except such charges incurred while the covered person on whose behalf they are incurred is confined in a hospital. * * * ”

The policy defines “hospital” as follows:

“Hospital means a legally constituted and operated institution which has organized facilities for the care and treatment of sick and injured people on an in-patient basis, including facilities for diagnosis and major surgery, 24-hour nursing service, and medical supervision. * * * ”

Since this case has been in this court, the appellant has filed in this court a supplemental brief in which he cited the case of Travelers Insurance Company v. Esposito, Fla.App., 171 So.2d 177, certiorari denied by the Supreme Court of Florida, in which the identical question presented by this appeal was before that court, and that question is, Was the Devereux Foundation of Victoria, Texas, a hospital under the terms of the policy there involved, which definition of hospital was in all material respects the same as that contained in the policy under consideration. We quote from the Florida case:

“CARROLL, Judge.
“The appellee Salvatore Esposito filed an action against the appellant The Travelers Insurance Company, in the civil court of record in Dade County for recovery of expenses of hospitalization and treatment of his minor daughter at a psychiatric hospital in Victoria, Texas, under an insurance policy. The defendant answered, admitting the policy, averring it was without knowledge as to the allegations of treatment of the plaintiff’s daughter, and denying that the alleged hospital was a hospital within the meaning of the policy. The cause came on for hearing on plaintiff’s motion for summary judgment supported by affidavits of two doctors and the deposition of one of them. One affidavit, by a Florida doctor, stated it was upon his advice that the minor was taken to the Devereux Foundation in Victoria, Texas, for treatment. The affidavit of Dr. George Constant, of the Devereux Foundation, included the following information :
“ T. I am a licensed Medical Doctor and am Psychiatric CONSULTANT to the DEVEREUX FOUNDATION, Victoria, Texas. The DEVEREUX FOUNDATION of Victoria, Texas is a Branch of Devereux Foundation, Devon, Pennsylvania, which is incorporated under the laws of Pennsylvania and is licensed by the State of Texas to operate. It is a member of the National Association of Private Psychiatric Hospitals and the American Hospital Association, and is licensed under the Mental Health Act of the Commonwealth of Pennsylvania.
“‘2. The DEVEREUX FOUNDATION maintains a full time psychological staff, registered nurses, and a consultant staff of doctors and psychiatrists. All patients are referred by doctors or professional agencies because of their need for care and attention along psychiatric, psychological and/or medical lines.
“ ‘3. SANDRA ESPOSITO, daughter of SALVATORE ESPOSITO, entered DEVEREUX FOUNDATION on February 14, 1963, for treatment upon the recommendation of her doctors for treatment of a mental illness. She has been an in-patient since that date.’
“The deposition of Dr. Constant enlarged upon those facts. The trial judge entered a summary judgment in favor of the plaintiff in the claimed amount of $4,480 plus interest and costs. On this appeal two points are presented as follows :
“ T. The Devereux Foundation Southwestern Treatment Center, Victoria, Texas is not a Hospital.
“ TI. Counsel for the Plaintiff is not Entitled to the Recovery of an Attorney’s Fee.’
“The insurance policy in question was a group employee policy under which the plaintiff was an insured. Under its terms the insured was covered for hospital expense benefits for himself and his dependents. A hospital was defined in the policy as follows:
“ ‘The term ‘hospital’ as used herein means an institution which meets all of the following tests:
“ ‘(a) It is engaged primarily in providing medical care and treatment of sick and injured persons on an in-patient basis at the patient’s expense and maintains diagnostic and therapeutic facilities for surgical and medical diagnosis and treatment of such persons by or under the supervision of a staff of duly qualified physicians;
“ ‘ (b) It continuously provides Twenty-four hour a day nursing service by or under the supervision of registered graduate nurses and is operated continuously with organized facilities for operative surgery; and
“ ‘(c) It is not, other than incidentally, a place of rest, a place for the aged, a place for drug addicts, a place for alcoholics or a nursing home.’
“Appellant contends the requirements of the above quoted definition were not met because in this ‘hospital’ the diagnostic and medical facilities were limited and it was lacking in facilities for operative surgery. Appellee answers that the deposition of Dr. Constant discloses ample diagnostic and medical facilities, and that there was an affiliation with another hospital for diagnostic and surgical facilities. Such an arrangement with another hospital was sufficient compliance with the requirements to have facilities for diagnosis and operative surgery. It was so held in a similar situation by the United States Court of Appeals in the Ninth Circuit in Reserve Life Insurance Company v. Marr, 9th Cir. 1958, 254 F.2d 289.
“Appellant also contended The Dever-eux Foundation did not meet the requirement for a 24-hour nursing service ‘by or under the supervision of registered graduate nurses’. The record does not support that contention. In the affidavit of Dr. Constant it was stated that the foundation maintained registered nurses and he so stated in his deposition which included the following: ‘Q Now, Doctor, does the Devereux Foundation treatment center at Victoria provide continuously twenty-four hour a day nursing service? A Yes, sir. Q By or under the supervision of registered graduate nurses? A Yes, sir.’
“There was no requirement in the policy that this be a general hospital, and it was not shown that The Devereux Foundation came within any stated exception. It was not contended that the patient was improperly or needlessly assigned to the hospital for treatment, or that the policy did not provide coverage for the hospital expenses for which recovery was sought. Doubts as to whether the facilities supplied were adequate to meet the policy’s defined requirements for a hospital should be resolved by construing the policy liberally in favor of the object to be accomplished, and provisions and conditions therein are to be strictly construed against the insurer. Howard v. American Service Mutual Insurance Co., Fla.App.1963, 151 So.2d 682, 686; Reserve Life Insurance Company v. Marr, supra. So construed, the language of the policy defining a hospital supports the finding of the trial court that the facilities furnished by The Devereux Foundation in Victoria, Texas, were adequate and sufficient to meet the prescribed policy requireménts.”

Dr. Constant was a witness in the case before this court by deposition and his evidence is in all material respect the same as given by him in the Florida case.

We adopt the holding in the Florida case and find that the Devereux Foundation of Victoria, Texas, is a hospital under the terms of the policy sued upon by appellant.

The date of the Florida opinion is such that we are sure the attorneys for both appellant and appellee, as well as the court, did not have the benefit of the same when the judgment of the trial court was rendered in this case.

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


author: McDONALD, Chief Justice.

text:
    SERV-ALL COMPANY, Inc., et al., Appellants, v. R. H. MINATRA et al., Appellees.
    No. 4416.
    Court of Civil Appeals of Texas. Waco.
    Nov. 4, 1965.
    Touchstone, Bernays & Johnston, Bailey & Williams, Dallas, for appellants.
    Charles McDonald, Ñaman, Howell, Smith & Chase, Louis Muldrow, Waco, for appellees.
   McDONALD, Chief Justice.

This is an appeal by Serv-All Inc. and Childers from an order overruling their pleas of privilege.

Plaintiff Minatra brought suit in Mc-Lennan County against Safeway Stores, Inc., Hendrick and Adams, E. O. Renner, Serv-All Company, Inc., Jesse E. Childers, and Jerry E. Catón for personal injuries sustained when she fell in the Safeway Store in Corsicana, Texas.

Safeway was having certain repairs made to its store in Corsicana. Hendrick and Adams, of Waco, McLennan County, were the general contractors; E. O. Renner of Dallas County, Serv-All Inc. of Dallas County, Jesse Childers of Navarro County and Jerry Catón of Navarro County were sub-contractors on the job.

Plaintiff alleged that as a part of the construction work there was a trench approximately 2 feet wide and 2 feet deep dug across one of the aisles in the store; that it was covered by defendants with a metal plate; that she stepped on the plate, it tilted and she slipped, causing1 her serious injuries; that Safeway had the duty to keep the premises in a safe condition; that Hendrick and Adams, as general contractors, and the other defendants as sub-contractors working in the excavated area, were all guilty of various acts of negligence proximately causing her injuries.

Defendant Serv-All Inc. filed its plea of privilege to he sued in Dallas County; defendant Childers filed its plea of privilege to he sued in Navarro County.

Plaintiff filed controverting affidavits asserting venue in McLennan County under Subdivision 4, Article 1995 Vernon’s Ann. Tex.Civ.St.

After hearing before the court without a jury, the trial court entered judgment overruling both pleas of privilege.

Defendants appeal, contending the trial court erred in overruling their pleas of privilege; that defendant Hendrick and Adams owed no duty under the facts to plaintiff; and there is no evidence, or insufficient evidence, that the negligence of Hendrick and Adams proximately caused plaintiff’s damages.

Subdivision 4, Article 1995 V.A.T.S. provides that if two or more defendants reside in different' counties, suit may be brought in any county where one of the defendants resides. The venue facts under this subdivision are: 1) That plaintiff allege and prove a cause of action against the resident defendant; and 2) that plaintiff allege a joint cause of action against the non-resident defendants. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; James v. Drye, 159 Tex. 321, 320 S.W.2d 319.

In the case at bar, plaintiff alleged that the resident defendants Hendrick and Adams were general contractors repairing the Safeway Store building; that they constructed the ditch or excavation in the aisle of the store; that Hendrick and Adams were to cover it with a metal plate which was to be bolted down; that Hendrick and Adams did not place warning devices; block off the aisle; or secure the plate to the floor, all of which was negligence proximately causing plaintiff’s injuries. The evidence reflects that Hendrick and Adams had the duty to bolt the plate to the floor but that they did not do so. We think that under the record a cause of action was both plead and proven against Hendrick and Adams.

But defendants say that Safeway had control of the premises and that defendant Hendrick and Adams did not have control of the premises, hence owed no duty to plaintiffs. Hendrick and Adams’ negligence contributed to plaintiff’s injury. All persons whose acts contributed to an injury are liable therefor, and the negligence of one does not excuse the negligence of another. Strakos v. Gehring, Sup.Ct., 360 S.W.2d 787.

Plaintiff alleged that all defendants, acting separately or concurrently, were guilty of failing to block the aisle where plaintiff fell; failing to place warning signs; failing to provide a safe way to cross the excavation; and failing to secure the plate over the excavation; all of which constituted negligence proximately causing plaintiff’s injuries. Plaintiffs alleged a joint cause of action against Hendrick and Adams and the non-resident defendants. The requirements of Subdivision 4 were met to maintain venue in McLennan County against all defendants.

All of defendants’ points and contentions are overruled, and the judgment of the trial court is affirmed.

Affirmed.


author: HUGHES, Justice.

text:
    NEWSPAPERS, INC., Appellant, v. Gerald Witt LOVE et al., Appellees.
    No. 11342.
    Court of Civil Appeals of Texas. Austin.
    Dec. 15, 1965.
    Rehearing Denied Jan. 5, 1966.

      Coleman Gay, Austin, Jackson, Walker, Winstead, Cantwell & Miller, W. B. Patterson, Jack Pew, Jr., Dallas, for appellant.
    Byrd, Davis & Eisenberg, L. Tonnett Byrd, Tom D. Blackwell, Austin, for ap-pellees.
   HUGHES, Justice.

This is the second appeal of this case. The opinions of this Court and the Supreme Court are found in 367 S.W.2d 185 and 380 S.W.2d 582, respectively. The parties here are the same as before.

We refer to those opinions for a general understanding of this controversy.

On the former trial the judgment, which we affirmed, was for $94,654.00. The appellant, Newspapers, Inc., contended that this judgment was excessive. The judgment from which this appeal is taken totals $130,401.90. There is no contention that this judgment is, in the usual sense, excessive.

On the former appeal we considered and overruled points of error made by appellant to the effect that there was no evidence to support jury findings that Cargile, appellant’s district manager with whose negligence appellant was sought to be charged, was not an independent contractor in his relationship with appellant and that the relationship between them was such that appellant “retained or exercised the power to control” not merely the end sought to be accomplished through such relationship but also the means and details of its accomplishment.

We also there considered and overruled appellant’s points that these findings were so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

We also held on the former appeal that evidence of control exercised by appellant over two of its former district managers was admissible on the issues concerning the true relationship between appellant and Cargile.

All of the above points were presented by appellant to the Supreme Court in its application for writ of error.

As we understand the opinion of the Supreme Court in reversing our judgment it did so on the sole ground that Special Issue No. 1 was improperly framed in that the inquiry should have been limited to the “right of control,” and “exercise of control” should have been excluded.

In concluding its opinion, the Supreme Court stated, “Other matters discussed by the Court of Civil Appeals need not arise upon another trial,” and the judgments of this Court and the trial court were reversed and “this cause remanded to the District Court for another trial.”

When this Court reverses and remands a case for retrial we deem it our duty under the decision in Sutherland v. Friedenbloom, 200 S.W. 1099, El Paso, writ ref., to determine all questions properly presented which are likely to recur upon retrial. We quote from such authority:

“It is true that the question of res judicata was the only one upon the former appeal this court must necessarily have passed upon, but, when this was answered in Friedenbloom’s favor, it became apparent upon the face of the record that the rights of the parties depended upon the question which is now presented. And McAfee upon that appeal, in support of an affirmance, was urging the illegality of the transaction upon the same grounds here presented, and contending that by reason of such illegality Friedenbloom could not recover. In this state of the record it was deemed proper to consider the question, and indicate to the trial court the view of this court, so that the former could be governed thereby upon retrial, and prevent the possibility of the case being tried upon a theory which this court could not approve. It has been a constant custom of our courts to pursue this practice. The Reports are full of instances where cases have been reversed upon issues collateral to the controlling one, and, for the guidance of the lower court upon retrial, the opinion of the appellate court has been expressed upon such controlling question, though such holding was not necessary to the disposition of the appeal. If, in such cases, such holdings are to be regarded as mere dictum, then our courts from their very inception have been pursuing a very improper practice. We cannot give our assent to the proposition that such holdings are mere dictum. They serve a most useful purpose by preventing unnecessary appeals to invoke a ruling upon a controlling question, and, when made in a proper case, they should be regarded as authoritative. In Black’s Law of Judicial Precedents, p. 180, § 58, it is said:
‘When an appellate court reverses the judgment of the court below and remands the case for further proceedings, and in its opinion states the rules and principles of law which are to be applied to the questions likely to arise upon the new trial, these statements are not to be regarded as dicta, although they are additional to the determination of the judgment.’ ”

The only specific rules, here pertinent, applicable to the Supreme Court of which we are aware are Rules 503 and 505, Texas Rules of Civil Procedure, the latter Rule providing, in part, that the Court shall “remand the case to the lower court, if it shall appear that the justice of the case demands another trial.”

We will advert to this Rule and to the preliminary discussion made above later in this opinion in disposing of points made by appellant which were before this Court on the former appeal, and were decided by us, and which were presented to the Supreme Court and which are again presented under substantially the same record and which must, of necessity, have been anticipated would recur upon retrial.

This trial was to a jury which made these findings: (1) On April 11, 1959, appellant and Cargile had a written contract, signed by both parties. This is, in substance, the same contract described in our former opinion. (2) Prior to the collision involved in this suit such contract had been abandoned, in whole or in part, insofar as its provisions concerning control of the details of the work (of Cargile) was concerned. (3) Car-gile was, on April 1, 1959, an agent of appellant. (4) Cargile failed to keep a proper lookout for vehicles approaching from the rear, and this was a proximate cause of the collision. (5) Before the Franklin car passed the Cargile car, Car-gile turned his car to the left at a time when he could not do so with safety, and this was a proximate cause of the collision. (6) Two negligent acts of Mr. Otis Franklin who was driving the “Franklin” car were found not to be the sole proximate cause of the collision.

Appellant’s first ten points are jointly briefed. We will discuss them together. These ten points are, in substance: (1) There being no evidence that the parties had abandoned the independent contractor contract between them and no evidence that they agreed that Cargile would be a servant of appellant, judgment should have been rendered for appellant. (2) There was no evidence to support the jury finding that such contract had been abandoned. (3) The evidence is insufficient to support such finding. (4) Such finding is against the weight and preponderance of the evidence. (5) The jury finding- that Cargile was an agent of appellant is immaterial since there was no evidence to support the finding of the jury referred to in Point 2, the jury being instructed to answer this issue only in the event it made the finding it did make in Point 2. (6) (7) These Points are the same as Number (5) above except it is asserted that the finding referred to in Point 2 was against the weight and preponderance of the evidence, and the evidence to support it was insufficient. (8) There is no evidence to support the jury finding that Cargile was an agent of appellant. (9) The evidence was insufficient to support this finding. (10) This finding is against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Before detailing the evidence on the controverted jury findings, we make these observations :

We attribute no importance to the jury finding that appellant and Cargile had signed a contract making Cargile an independent contractor in evaluating either the opinion of the Supreme Court or the opinion of this Court on the former appeal because the existence of such contract was assumed by both Courts in their disposition of the case.

We are of the opinion that the jury finding that appellant and Cargile had abandoned the contract above mentioned insofar as the provisions relating to control of the details of the work were concerned was not a controlling issue and should not have been submitted. The controlling issue, in our opinion, was the issue in answer to which the jury found that Cargile was an agent of appellant. In connection with this issue the jury was instructed, in part, “that the term ‘agent,’ means a person who undertakes to do work for another person whereby such other person has the right to control, not merely the end sought to be accomplished but also the means and details of its accomplishment, not merely what should be done but how and when it should be done.”

No objection to this charge is brought forward. It conformed to the opinion of the Supreme Court herein wherein it stated, “The fact remains, however, that the ‘right of control’ remains the supreme test * The Court also stated, “ * * * the terms of the agreement between the parties is of importance in determining the existence of a master-servant relationship and that the essential inquiry is whether or not the employer has the contract right to control the opposite contracting party in the details of the work to be performed. * * * A highly important evidentiary matter bearing directly upon the crucial or controlling issue is whether the written contract between Newspapers, Inc., and Cargile was a subterfuge or whether it had been abandoned in whole or in part insofar as the right to control the details of the work is concerned.”

Since the written contract between appellant and Cargile provided that appellant should not have any right to control him in the details of his work it is obvious that the jury finding that their relationship was that of master and servant, under the Court’s instructions in connection with it, is, in effect, a finding that the written contract has been abandoned insofar as the provision of the contract above noted is concerned.

We state the substance of the evidence relating to the jury findings which appellant challenges in these ten points.

On and prior to April 11, 1959, F. V. Wheeless, Mayes Behrman and Cargile were district managers for Newspapers, Inc., and all three worked under the supervision of Phil Granath, city circulation manager, and P. F. Fincher, general circulation manager.

It is uncontroverted that Cargile, Whee-less and Behrman all were operating under the same contract and that the business relationship that existed between the Newspaper and Wheeless and Behrman was exactly the same business relationship that existed between the Newspaper and Cargile.

Cargile had a district small enough so that he could deliver and collect for his papers with the assistance of only one assistant, but Wheeless and Behrman had larger districts which required the regular use of several carrier boys. Other than that distinction, there was no difference in their working arrangement with the Newspaper.

Although witnesses for appellant referred to Cargile as a “route carrier” rather than a “district manager,” it is clear that the designation “route carrier” only refers to the manner in which papers were delivered and collected for in a particular area. Most districts had both types of carriers; that is, “route carriers” who used motor vehicles and “regular carriers” who walked.

Cargile could have used regular carrier boys if he had needed them. However, most of the time he had only one assistant under his supervision.

The evidence in this record showing a right of control by the Newspaper over the district managers generally is as follows:

(1) The Newspaper rigidly controlled the price district managers paid for papers, the price such managers charged carrier boys for the papers and the price subscribers paid for papers.
(2) District managers were required to personally pick up their papers shortly after they came off the press. They were not permitted to act for each other in this respect nor could they hire a third party to do the work for them.
(3) District managers were required to complete their delivery before a specified deadline set by the Newspaper. The purpose of this time limit was to achieve early delivery.
(4) Each district manager was required to call the newspaper office at regular specified time intervals to inquire about customer complaints regarding the delivery or non-delivery of papers. District managers were not permitted to alter the time and method of handling these complaints. District managers were not permitted to act for each other in the matter of complaints. They were required to handle their complaints personally.
(5) District managers were not allowed to deliver hand hills or circulars along with papers. Some of the managers were earning extra money by performing this service and the Newspaper compelled them to stop.
(6) District managers were required “to devote their full time and efforts to the job of being a manager.”
(7) District managers were required to deposit the Newspaper’s portion of collections in a special bank account and to deliver the deposit slips to the Newspaper at its office.
(8) District managers worked for only one newspaper and supervision of their work by the Newspaper was a daily occurrence.
(9) The size and location of delivery districts were changed by the Newspaper at will and without regard to the wishes of the district managers. The cost of the papers was not the same for all district managers and it was changed by the Newspaper at will and without regard to the wishes of the managers. In this way their compensation was controlled. The size and location of delivery districts coupled with the specified deadline for completion of delivery controlled the method of delivery used by the district managers.
(10) In some areas district managers were required to place the newspapers on their subscribers’ porch, regardless of weather.
(11) District managers were required, by the Newspaper to keep a special set of books showing how many papers were actually delivered to subscribers. This was essential to the Newspaper for the purpose of pricing and selling advertising space.
(12) Salesmanship schools were conducted by the Newspaper and the district managers were required to attend. The Austin High School facilities were used for their salesmanship schools and a teacher was provided as a sales instructor. These arrangements were presumably made by the Newspaper, as the district managers did not make them.
(13) When customers paid in advance for their papers, the Newspaper took control of the money and paid the district managers on a monthly pro rata basis until each paid-in-advance subscription expired.
(14) District managers were not permitted to compete with each other by cutting prices, nor were they permitted to reduce the price of the paper in an effort to increase their volume of sales.
(15) District managers were not free to run their districts in their own way. They were required to conduct their work in a specific way designated by the Newspaper, and such right of control was demonstrated on a daily basis.
(16) In their actual operations, the Newspaper and the district managers “did not live by their contracts.”
(17) The district managers were furnished receipt pads which they used in collecting from subscribers. These were provided without cost.
(18) Upon request the district managers were required to furnish the Newspaper with the names and addresses of all persons to whom they had delivered papers.
(19) District managers were required to be bonded.
(20) The Newspaper had an absolute right to terminate the district managers’ contracts on ten days notice.

The evidence in this record showing a right of control by the Newspaper over the district managers in their dealings with carrier boy employees is as follows:

(1) District managers were controlled by the Newspaper in the selection of their carriers. They were required to employ young boys rather than older men.
(2) District managers were required to personally supervise their carrier boy employees, Mr. Granath, a Newspaper witness, testifying, “* * * to see that the boys were up to wake them up if necessary, to make good delivery.”
(3) District managers were required to file with the Newspaper certain records showing how many papers were sold to each carrier boy and how much each carrier boy paid for his papers. This was to protect the carrier boy from being cheated by the district managers.
(4) District managers were instructed to sign all carrier boys to contracts and the contract forms were furnished to the district managers without cost.
(5) The carrier boys were furnished receipt pads which they used in collecting for subscriptions. These were provided without cost.
(6) Salesmanship schools were conducted by the Newspaper and the carrier boys were required to attend. The Austin High School facilities were used for this purpose and a school teacher was provided as a sales instructor. These arrangements were presumably made by the Newspaper, as the carrier boys did not make them.

The following is from the testimony of Mayes Behrman:

“A I told Mr. Granath that it seemed to me — this occurred in the first summer of my work there — that it seemed to me that we were being much more controlled than the terms of the contract allowed, and his response to me was that — he said, ‘Behrman, you should know by now that contract is not worth the paper it is written on. It is meant to protect the company.’ ”

Phil Granath, appellant’s city circulation manager, testified as follows:

“Q All right. Now — and in all my questions with you, please, sir, since Mr. Cargile is the one involved in this lawsuit, relate all my questions to Mr. Cargile only, please, sir, and not some other person. Now, in your operations with Mr. Cargile under this contract, tell us what the facts are as to whether or not you ever directed Mr. Cargile to do anything other than to follow the terms of that contract.
A That is all I ever did, was quote the contract.
Q With reference to Mr. Cargile, did you daily supervise him?
A No, sir.
Q About how often would you see Mr. Cargile?
A Well, sometimes it would be a month or so.
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Q All right. Are you familiar with the type of route that Mr. Cargile had ?
A Oh, yes, sir,.
Q And what type of route was that ?
A What we ordinarily call a motor route.
Q And what was Mr. Cargile’s designation with the newspaper — what did you all call the fellow that contracted like he did?
A He was a motor route carrier.
Q Is there to the newspaper a material difference between a motor route carrier and a district dealer?
A Well, yes, inasmuch as the motor route carrier does all of his own operation, delivering and collecting, whereas the district manager has carriers that he contracts with.
Q Did Mr. Cargile comply with the terms of his agreement that he would put up a bond with the newspaper prior to April 11,1959?
A. Yes, sir.
Q Over a period of, say, a couple years prior to April 11, 1959, can you at this time recall any specific instance when you even discussed with Mr. Car-gile what he was doing or he was not doing out there on his route?
A Sir, I saw him very seldom, and we had no reason to go into any of his business.”

Mr. Granath’s superior Mr. P. F. Fincher, testified:

“Q Mr. Fincher, is it not true that you supervise these managers, — that is, Mr. Wheeless, Mr. Cargile and all the other route managers — on a daily basis for the purpose of improving not only their business but yours and improving your newspaper business in general; it is a daily supervision thing, isn’t it, sir?
A Well, with Mr. Cargile, we may see. him once a month. The reason we would see Mr. Wheeless—
Q Now, I didn’t ask that question.
A Well, you did say did we supervise them daily, and I am answering no.
Q Your answer is no?
A We do not supervise Mr. Cargile daily. The only reason we ever see Mr. Wheeless, he comes in daily.”
Mr. Fincher also testified:
“Q Now, of course, that means, of course, that from time to time you all amended your written contract with instructions and little agreements orally, didn’t you?
A Well, I don’t know about any oral agreements. We try to restrict them to written agreements and put it all down in black and white.
Q All right. I understand, but from time to time you would amend your written agreements orally, and then later on change them at a later time, wouldn’t you?
A That could be, yes, sir.”

There is also in evidence a letter from Mr. Granath to Mr. Wheeless in which he stated, “It is our desire to terminate all contractual agreements with you either written or oral on January 1, 1961.”

If the testimony in the former trial, set out at length in the opinion of this Court, is examined it will appear that it is, in substance, the same as is now before us. The principal differences are that on this trial it is shown that Mr. Cargile had one helper or employe whereas on the first trial it was not shown that he had any helpers other than members of his family, and the other difference being that Mr. Cargile was not a witness on this trial. This Court, in its former opinion, quoted some of the testimony of Mr. Cargile as bearing on the relationship between him and appellant. We considered such testimony and gave it weight in reaching our decision. With reference to this testimony, the Supreme Court said, “However, the statements of Cargile in this deposition relate to his opinions or conclusions as to the relationship between him and Newspapers, Inc. and not to any definite or specific acts of control exercised by Newspapers, Inc. over Cargile’s actions other than such as were consistent with an independent contractor relationship such as directing when Cargile should pick up his papers and when he should deliver them.”

It thus appears that the Supreme ■ Court gave little, if any, weight, to the testimony of Mr. Cargile; hence, its absence here is not of paramount importance.

Since it is our view of this record that the evidence now before us is in substance the same as considered by us on the former appeal and not being1 convinced that we there wrongfully appraised it, we adhere to such appraisal and refer to our discussion there made of it. Accordingly, we overrule appellant’s first ten points, using the appropriate rules for deciding the no evidence points and points pertaining to the weight of the evidence as stated in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Insofar as the “no evidence” points among the first ten are concerned, we are of the opinion that the Supreme Court has determined that there is, or at least was, evidence to legally sustain a finding that Cargile was a servant of appellant.

Reverting now to the rule which obligates this Court to determine questions which are likely to recur when a case is retried after a remand, we are confident that this obligation also rests upon the Supreme Court, as to questions properly before it and of which it has jurisdiction.

In Rogers v. Blake, 150 Tex. 373, 240 S.W.2d 1001, the Court, in reversing and rendering judgment, stated, “This case has been fully developed and there is nothing to be gained by a further trial of the same.”

We feel that had the Supreme Court on the former appeal not been of the opinion that the “no evidence” points were invalid, it would not have reversed and remanded such cause. There was no suggestion in this Court that such cause was not fully developed and the Supreme Court did not indicate that such suggestion had been made to it. Surely, under Rule 505, the interests of justice did not require this case to be remanded if a fully developed record did not contain any evidence on which appellees under proper submission of the case could prevail.

Point eleven is that the trial court erred in permitting appellees, over objection, to introduce evidence as to the control exercised by appellant over carrier boys in the distribution of its papers.

The evidence does not show that Cargile used carrier boys, although he was assisted by members of his family and he had one employe to help him in his work.

The evidence objected to has been set our under our statement relating to the first ten points.

Cargile’s business relationship with appellant was identical with that of Wheeless and Behrman, who testified to the control exercised by them over carrier boys. If Wheeless and Behrman could employ carrier boys, so could Cargile. While Cargile apparently did not need carrier boys if his district had been enlarged as appellant had the right to do, then the employment of carrier boys by Cargile would, no doubt, have been necessary.

In our opinion, the evidence admitted was admissible on the issue of appellant’s right of control which appellant had over Cargile. Only the exercise of this control was lacking as to Cargile because the conditions which would activate actual control had not occurred. Point eleven is overruled.

Point twelve is that the trial court erred in admitting in evidence, over objection, Behrman’s testimony that Mr. Granath told him, in referring to his written contract with appellant that it was “not worth the paper it is written on. It is made to protect the company.” The objection was that it is an attempt by Mr. Granath “to state his own understanding of a written contract and its effectiveness.” Also, the testimony was objected to on the ground that it was prejudicially irrelevant and immaterial.

We do not understand that the objection made comprehends the further objection that Mr. Granath, being an agent, could not bind his principal by the statement if it is otherwise admissible.

If this statement was one of fact, rather than a mere expression of opinion, it was admissible. Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651.

Under the circumstances of this case, we hold the statement made is, or at least is subject to the interpretation that it is, a statement of fact. It, in effect, told Mr. Behrman that he was to take instructions from Mr. Granath concerning the details of his work regardless of the fact that he, according to the written contract, was an independent contractor.

The statement attributed to Mr. Granath was certainly prejudicial to appellant. Our reading of the Supreme Court opinion leads us to believe that that Court considered the statement material. We also believe it material on the issue submitted to the jury inquiring whether the written contract had been abandoned by appellant insofar as controlling the details of Cargile’s work was concerned. Point twelve is overruled.

Points thirteen through twenty-four are jointly briefed. We will so consider them. They relate to jury findings' that Cargile was negligent and that his negligence proximately caused the collision between the Franklin car and appellees’ car.

We quote from appellant’s brief the following statement made under these points:

“The accident occurred on the three-lane highway that runs generally north and south between Austin and Bastrop. The time was just before dawn on April 11, 1959. It was raining and foggy and, by the undisputed evidence, ‘you could not see very far.’
At the Montopolis Bridge, two disinterested witnesses, Thomas Janak and E. D. Koehn, watched the Buick automobile of Otis Franklin hurtle past them at a speed of 70 miles per hour and disappear to the south over a hill. Janak and Koehn continued south for about one-quarter to one-half-mile and came upon the collision. Franklin’s car had collided head-on, in the easternmost lane of the highway, with ap-pellees’ pick-up truck. The force of the collision had virtually welded the two vehicles together.
The physical facts showed that Franklin had so completely lost control of his car that it had partially run off the west side of the pavement, and had then skidded broadside, with its rear wheels in the mud and its front wheels on the pavement, for about 130 feet, collided with and demolished a barricade that was 4 to 5 feet off the west side of the road, caromed off the barricade clear across the west and middle lanes of the highway, straightened its course due south again, and collided head-on with the Love pick-up truck, 148 feet south of the barricade and 278 feet south of the point where it had left the pavement.
Janak, Koehn, and the police investigating officer all testified that, when Franklin was pulled from the wreckage, he smelled strongly of alcohol. Franklin admitted that he had been drinking, had not slept that night, and had been in an ‘all-night cafe’ from midnight until 5:00 a. m.
The only known witnesses to the accident were Franklin, Cargile, and appellees, the Loves. Mr. Love does not remember the accident, Mrs. Love was not asked whether she remembered it or not, and Cargile did not testify. The only description of Cargile’s actions is the testimony of Otis Franklin. The account elicited from him by counsel for appellees is as follows:
‘Q All right. Now, if you will, just explain in your own words what happened as you came upon or as you got near the scene of this collision, and what happened when you first saw a vehicle up in front of you; just tell them where you were, where the vehicle was, and what happened.
A. I was in the center lane going towards Bergstrom, and as I was coming upon a vehicle about a hundred feet in front of me, I was driving there and I saw that I could go on in the middle lane; and just as I was about fifty feet behind this vehicle, it started pulling over into my lane. So when I saw that I could not go up the middle lane without hitting this vehicle, I slightly touched my brakes and pulled to the right, trying to go down the right hand lane, and when I did, my car must have went in some kind of a skid or something, and I tried to straighten it up, and that is the last thing I remember.
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Q All right. Now, all that I want to know is, you have told us the Jeep station wagon was in the far right or extreme west hand lane; is that correct ?
A Yes, sir.
Q That you were approaching it and overtaking it in the middle lane ?
A Yes, sir.
Q How fast would you estimate, if you can, was the Jeep station wagon traveling?
A He was traveling at a slow rate of speed. I would say around fifteen or twenty miles per hour.
Q All right. And how far would you estimate the distance to be when you first observed the taillights, or what did you observe first on the car?
A I observed the car pulling over into my lane.
Q Well, when you first observed the car in the right hand lane, before he pulled over into your lane, about what distance would you estimate— and I am not intending to imply a distance here — between the back of his car and the front of your car?
A Around a hundred feet.
Q Then the distance you are talking about from the rear of the car in the right hand lane to the front of your car, when you first saw the vehicle in the right hand lane, was about a hundred feet?
A Yes, sir.
Q All right, sir. Then, as you approached the slow moving Jeep station wagon, which was in the right hand lane, and you were in the middle lane, from your testimony you have indicated the Jeep turned to the left into your lane ?
A Yes, sir.
Q Now, as best you can, what is the approximate distance between the front of your car and the rear of his car when he started his turn into your lane of traffic, or when you realized he was turning into your lane of traffic ?
A Around fifty feet.
Q All right. Then, if I have understood you correctly, you slightly touched your brakes and tried to go to the right; is that a correct representation ?
A Yes, sir.
Q And as you tried to straighten up, you lost control of your car?
A Yes, sir.
Q Well, you said while ago, as best you remember after your four beers and staying up all night, that this car here started towards your lane of travel ?
A Started turning over in my lane, yes, sir.
Q All right. Did he get all the way over there?
A He got part way in my lane.
Q And did he get all the way over there ?
A No, sir, he didn’t.
Q He never did get all the way over there?
A No, sir.
Q How far did he get over there?
A He got far enough that I knew if I kept up in that lane I would have hit him.
Q Which lane?
A In my middle lane.
Q Well, how about the right hand lane?
A Well, he had part of his rear in the right hand lane, too.’
There is no jury finding or evidence that Cargile failed to signal his intention to turn into the center lane. There is no evidence of the nature of the terrain north of the point where Franklin attempted to pass Cargile — i. e., in back of Cargile — except the testimony of Koehn that the countryside between the bridge and the scene of the accident is ‘kind of rolling and hilly.’ The undisputed evidence is that Cargile’s jeep is approximately 6 feet wide, Franklin’s Buick is about the same width, and each of the lanes of the highway is 12 feet wide. There is no evidence that, at the time Franklin attempted to pass Cargile, there was any traffic other than Franklin, Cargile, and appellees.”

By reference to our former opinion it will be observed that the evidence is about the same here as there regarding the negligence of Cargile, the major difference being that Cargile did not testify on this trial and there is no evidence that Cargile failed to signal his intention to change lanes or that he did not see the Franklin car until it went by him. The jury findings of negligence there were that Cargile failed to keep a proper lookout and that he made a left turn without giving a proper signal. The negligence of Cargile in that appeal was not disputed. Here, the jury findings are that Cargile failed to keep a proper lookout for cars approaching from the rear and that he turned his car to the left when he could not do so with safety.

It is our opinion that the evidence supports these findings as well as the findings that such negligent acts were proximate causes of the collision and that all such findings are not so against the great 'weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

We consider our discussion of proximate cause in the former opinion to be applicable in principle here and we refer to it rather than repeat it.

As to the findings of negligence, we said in our former opinion that the negligence of Mr. Cargile was “evident.” We believe it to be evident here. The manner in which Mr. Cargile drove his car is the same as before, except that it is not shown that he failed to signal. The jury found that the Franklin car was driving in excess of 45 miles per hour at the time, and witnesses who saw the car one and one-fourth miles from the collision testified the Franklin car was going seventy miles per hour. Under these circumstances the failure to give a signal does not seem to have much bearing on the jury finding that Cargile made a left turn when he could not do so with safety. It seems to us that the jury was well within its proper field in making this finding even though it had no information as to whether Cargile gave a signal.

We reach a similar conclusion as to the finding of Cargile’s negligence in failing to keep a proper lookout for cars approaching from the rear. We do not have Cargile’s affirmance or denial of this conduct. Circumstantially the evidence overwhelms that he did not look to the rear before changing lanes. If he had done so he would have seen the Franklin car or, if not seeing it, he would not have been able to see far enough to the rear to warrant the belief that he could change lanes with safety.

Points thirteen through twenty-four are overruled.

Points twenty-five and twenty-six are jointly briefed and will be so treated. These points relate to alleged improper jury argument of appellee’s counsel in commenting on appellant’s failure to use Cargile as a witness.

We quote the argument made by counsel for appellees in his closing argument:

“Incidentally, with regard to how this accident happened, if we are not right and it didn’t happen just as we say it happened and as the testimony here shows it happened, why don’t they bring in Mr. Cargile and let him tell us we are wrong. You know that they would have had him here explaining if there is any one thing about this turning proposition that wasn’t correct. A judicial proceeding is not a place to hide evidence; it is a place to present it and get the truth out, all the truth, and then let the chips fall where they may.”

Following this argument, counsel for appellant received assurance that as part of his objection the record showed that Mr. Cargile was present in the Courthouse and equally available to both sides. Counsel for appellees then made this argument:

“All right; now, I will explain — equally available to put on? My friends, when you put your witness on the stand, you can’t cross-examine him; you have to accept what they say. If I had put these newspaper witnesses on as my witnesses, I couldn’t cross them. I couldn’t challenge them, I couldn’t show that they weren’t testifying like they had been, where would I be ? Now, that is the unfair position that they are trying to put the plaintiff’s case in, by concealing and hiding information which they ought to have available to them, and do.”

In the opening argument counsel for appellees stated that, “if they even suggest that I should have put Mr. Cargile on as my witness, then I will answer that in rebuttal.”

Counsel for appellant did not comment on appellees’ failure to use Cargile as a witness in his argument to the jury.

Cargile had a business relationship with appellant, here determined to be employer and employe, when the incident giving rise to this suit occurred and when this suit was triéd. He was a defendant in the previous trial and the judgment obtained against him has become final.

We believe the argument complained of to be a fair comment on the failure of appellant to call Cargile as a witness under the rule that it is proper “for counsel to comment in argument on the unexplained failure of the opposite party to call as a witness and offer the testimony of one who the record shows to be legally available, and who, while employed by such party, obtained or was clearly in a position to obtain material information on a point at issue in the litigation.” Tex-Jersey Oil Corporation v. Beck, 157 Tex. 541, 305 S.W.2d 162, 68 A.L.R.2d 1062.

Points twenty-five and twenty-six are overruled.

Points twenty-seven through thirty are jointly briefed and will be so discussed. These points are, in effect, that there was no evidence to support the jury finding that the reasonable present cash value of necessary special training for Connie Gail Love in the future until she becomes 21 years of age was $15,000.00, and that such finding was against the weight of the evidence.

Dr. Empress Zedler is a professor of psychology. She is Director of the Speech, Hearing and Language Clinic at the Southwest Texas State College at San Marcos. She trains and supervises teachers for brain injured children and has done research in this field for ten years. She testified at some length concerning the need of Connie Gail Love for this type of special treatment. As to the cost of this treatment, she testified :

“From your experience, Dr. Zedler, what does that type training, that special training that you have described for us — what will it cost?
MR. GAY: Your Honor, we object to it unless it is with reference to some particular locality where the child might be expected to receive it. * * *
Q Dr. Zedler, of course, you understood, I am sure, I mean from your experience, which is in Central Texas, is it not?
A Yes, sir. I have literature from elsewhere.
Q No, from your experience in the area in which you work, tell us what this type training costs on an hourly basis or monthly, or however you can best estimate it.
A Five and a half dollars an hour is the minimum, so far as I know when a trained person is teaching a child.
Q All right; thank you ma’am. Basing your opinion on reasonable probability will that cost be any less in the future than it is now?
A No, sir. We can’t get anybody to work for five dollars and fifty cents an hour; that is our trouble.”

It is true that reasonableness of the cost of future treatment must be shown. The question presented is whether the above testimony is of sufficient probative force to sustain the jury finding of reasonableness. There is no direct testimony that the charges for this treatment are reasonable. The record is not, however, in the same condition as found in Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, cited by appellant. There the Court stated, “We thus are left with the amount of the charges as the only evidence in this record which might throw any light on the reasonable value of the services rendered.”

There is much more in this record than the bare cost of the training. A very highly qualified and experienced person, Dr. Zed-ler, testified, not to her charges, but to the charges which, to her knowledge, are made in this area for the type of training required by this child.

We believe that this testimony of Dr. Zedler bears on the reasonableness of the charges made for this training. It is the equivalent of the testimony considered in Sam v. Sullivan, Tex.Civ.App., 189 S.W.2d 69, Galveston, writ ref., w. o. m., where testimony as to the usual and customary charges for nurses, approved by a physician, were held to raise the issue of reasonableness of the charges. This case was noticed in Gossett, supra, without disapproval. Also see Canales v. Bank of California, Tex.Civ.App., 316 S.W.2d 314, Eastland, writ ref., n. r. e.

Testimony that the minimum rates in this area for teachers for the type of training needed by Miss Love are $5.50 per hour, in our opinion, a sufficient basis for the jury to determine their reasonableness. Rates generally charged in an area are certainly usual and customary. There is a strong relationship between the words, “reasonable,” “usual” and “customary.” Martin v. Fletcher, 77 Or. 408, 149 P. 895. Under these circumstances, we consider them synonymous. Points twenty-seven through thirty are overruled.

Points thirty-one through thirty-four are jointly briefed, and will be so considered.

These points are that there is no evidence to sustain the jury finding that $900.00 is the reasonable cash value of necessary medical services which will in reasonable probability be rendered to Connie Gail Love before she becomes 21 years of age; also, that such finding is against the great weight and preponderance of the evidence.

The following testimony of Dr. Robert G. Farris, in our opinion, sufficiently supports the finding of the jury, and we hold that such finding is not against the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust:

“Q Basing your opinion again, Dr. Farris, on reasonable probability, will Connie Gail need medical attention in the future after her seizures begin?
A It is my opinion that it is probable that this child will develop seizures and will require medical treatment in the control of the seizures.
Q For how long after that time will she require and need medical attention, Dr. Farris?
A I should say in my opinion I believe that after these seizures develop, which I believe they are likely to do, probably will, that she will require indefinite control, so long as she lives.
Q Could you give, Doctor, and again basing your opinion on reasonable probability, what you would estimate her medical expenses will run each year in the future after that occurs ? Just a general average.
A I would estimate about a hundred dollars a year.
Q Now, will you break that down— not necessarily break it down, but what would that consist of — what type services, Dr. Farris?
A Well, for reasonable control we would assume that the child would have about one electroencephalogram during each year to judge the effect and to guide the control, which costs thirty to thirty-five dollars. She would probably need about forty or forty-five dollars worth of medicines a year, and she would need occasional visits to the doctor’s office, and an occasional blood count.
Q Why would the blood count be necessary ?
A Well, these medicines that are taken to prevent the convulsions may suppress the bone marrow and may cause damage to the bone marrow. It is necessary to check that occasionally to see if that is occurring.
Q I see. Well, would you recommend, once they begin, that she have all the services you just explained to the jury from a medical standpoint to give her proper care?
A I would consider that that outlined treatment would be reasonable, certainly not excessive.
* * * * * *
Q All right. Now, you have said also that allowing some thirty dollars a year for an e. e. g. and some more for medicine, anticonvulsants, and some more for visits to the doctor and blood tests, that you would expect to spend about a hundred dollars — that their family would have to spend about a hundred dollars a year if these seizures ever started; now, is that your testimony?
A I believe that that would be correct. It would be a reasonable estimate.
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Q Doctor, in addition there will be testimony that for electroencephalograms, the two that you have described to the jury, the charge was a total of $55.00. Were those electroencephalograms necessary for your proper evaluation and treatment of Connie Gail?
A Yes, sir.
Q And is the sum of $55 a reasonable charge for those e. e. g.’s?
A Yes, sir.”
We overrule these points.

Appellant’s remaining points, thirty-five through thirty-eight, jointly briefed, are, in substance, that the finding of the jury that the present reasonable cash value of medical services which in reasonable probability will be rendered Connie Gail Love in the future but after she becomes 21 years of age is $5000.00 is supported by no evidence and is against the weight and preponderance of the evidence.

The evidence to support the answer of the jury to this issue is the same as that set out above to support the jury answer that $900.00 medical services would in all reasonable probability be required before Connie Gail Love reached the age of 21 years. We are of the opinion that the finding of $5000.00 for medical services beyond the age of 21 years is not without evidence to support it, and it is not so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. These points are overruled.

It is our opinion that the judgment of the trial court should be affirmed. It is so ordered.

Affirmed.

ARCHER, C. J., not participating.

      . In addition to the provisions of the contract there described or quoted, the contract provided that a performance bond was to be furnished by Cargile on request, and it provided that the paper rates could be altered only on agreement of the parties thereto.


author: COLLINGS, Justice.

text:
    P. W. CURREY et al., Appellants, v. Ella May INGRAM et al., Appellees.
    No. 3949.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 5, 1965.
    Rehearing Denied Dec. 3, 1965.

      Jennings, Montgomery & Dies, Graham, for appellants.
    Mock, Banner & McIntosh, Wichita Falls, Jimmy Horany, Archer City, for ap-pellees.
   COLLINGS, Justice.

Ella May Ingram, a widow, and her children brought suit against P. W. Currey, Donald Currey, James D. Currey, and Donald E. Brown, doing business as Currey-Brown Oil Company to recover damages for salt water pollution of their land. They alleged that defendants drilled an oil well on their 160 acre tract of land; that production of oil was obtained in January of 1961, but shortly thereafter the well began to produce salt water which defendants first attempted to dispose of in earthen pits and later by injection into subsurface strata. Plaintiffs alleged that defendants were guilty of numerous negligent acts and omissions in the disposal of such salt water which proximately resulted in permanent damage to plaintiffs’ real property, loss in value of a herd of sheep and damage to crops growing on the land. Based upon a jury verdict, judgment was rendered for plaintiffs for $4700.00 on account of damage to their land, and for plaintiffs Richard Mitchell and wife for $1660.00, $300.00 of which was for loss of profit resulting from the salt water damage to the Mitchells’ crops and $1360.00 for loss in the value of Mitchells’ sheep. The Curreys and Browns have appealed.

Appellants’ first eleven points relate to injury and liability for salt water escaping from seismograph holes. The jury found that the defendants failed to cement the injection string in the Currey well before injecting salt water therein, failed to test the injection system to determine that salt water was being disposed of into the 1350 foot level only, prior to use as a salt water disposal well, failed to cap or seal off the seismograph holes on the Ingram property before injecting salt water into the Currey well, that each of said acts or conduct on the part of defendants was negligence and proximately caused the injury and damages sustained by plaintiffs. In appellants’ first eleven points it is contended that there is no evidence or alternatively insufficient evidence to support such findings and that such findings are against the great weight and overwhelming preponderance of the evidence.

It is well settled that under an oil and gas lease the surface estate is serv-ient to the mineral estate for the purpose of the mineral grant. However, it is equally well established that the rights of the lessee under an oil and gas lease must be exercised with due regard to the rights of the surface owners, and that he owes the duty to the owner of the surface not to negligently injure such estate. General Crude Oil Company v. Aiken, 162 Tex. 104, 344 S.W.2d 668. Appellants concede that there was some salt water damage to appellees’ land and property, but contend that appel-lees have failed to discharge their burden to show the cause of such damage, and particularly have failed to show such damage was caused by any negligence on the part of appellants; that appellees failed to show that the injection of salt water into the Ingram well caused any water to leak from the shot holes and that the water would not have come out of the shot holes except for appellants’ failure to cement the inj ection string; that the evidence considered in its most favorable light to appel-lees on the question of proximate cause presents no more than a guessing game and does not constitute evidence of probative force in support of the verdict. In our opinion there was ample evidence to support the judgment, and no reversible error is presented in these points. -

There was evidence to the effect that at no time prior to the damage to the subject property had there been any salt water pollution thereon; that soon after salt water began to be released from the well pollution and damage became apparent. After much complaint concerning such pollution appellants secured a permit from the Railroad Commission to dispose of the salt water in a stratum 1350 feet below the surface. Appellants then placed 1350 feet of pipe for the injection of salt water inside the large hole, which was about 5,000 feet deep, and began the injection of salt water under a pressure of several thousand pounds per square inch. It is undisputed that appellants did not cement the salt water injection pipe prior to its use in such a manner as to prevent the salt water from rising in the hole to other strata near the surface so that such water could pass into and through such strata and percolate, impregnate and damage the surface and subsurface of appellees’ land. It is also undisputed that soon after appellants began their injection through the uncemented pipe salt water began to run, seep and flow from the seismograph holes on appellees’ property.

W. C. Sutherland, a consultant petroleum engineer, and a man experienced with the oil industry in that section testified concerning appellants’ operations in disposing of the salt water. He stated that in his opinion it would not he a reasonable prudent oil operation to inject water at high pressure for a period of five or six months into the pipe as above indicated without cementing off or squeezing off such injection string. Sutherland further testified that in his opinion “a reasonable prudent oil operator would have cemented or squeezed off the injection string of pipe prior to injecting salt water down the hole under pressure”. No qualified witness testified that it would be reasonable or prudent to so inject salt water under pressure without cementing off the injection string.

The evidence indicates, as above stated, that some time in July or August of 1961, appellants began the injection of salt water under pressure into the Currey well without cementing off the injection string. The evidence further shows that in February of 1962, water began to run and percolate out of a double shot hole on the north side of the property and a single shot hole on the south side of such property. The witness Sutherland stated that in his opinion, after visiting the premises and checking the surrounding area, salt water coming out of such shot holes would “have to be a blend of the water and of the same water that was injected into- the Currey Oil Company Number 1 disposal.” He stated that in his opinion the source of the water coming out of such shot holes was from the Currey Oil Company Number 1 well. This constitutes some evidence supporting the finding that the action of appellants in injecting salt water into their well through a pipe which had not first been properly cemented constituted negligence proximately causing the damages sustained by appellees. Considering the record as a whole we also find that the, evidence is sufficient to support such findings of negligence and proximate cause and that such findings are not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellants particularly complain of appellees’ claim and the jury findings that appellants were guilty of negligence proximately causing the alleged damages by reason of their failure to “tap or seal off the seismograph holes before the injection of salt water into their well.” Appellants point out that they did not make the shot holes; that such holes were made by a prior owner of the oil leasehold interest and that appellees were paid for shot hole damages at the time the seismic work was done in 1959. Appellants urge that they had no way of locating the shot holes in the cultivated portion of appellees’ land and that after the passage of time it was seldom possible to identify a shot hole in pasture ' land. It is undisputed, however, that appellants knew the land had been “shot” by a Gulf crew and knew of the existence of such shot holes. Appellants’ negligent failure to cement the injection string in the Currey well before injecting salt water therein is well established by the evidence and jury findings and rendered appellants liable for all damages proximately resulting therefrom. The evidence in our opinion supports the conclusion that the salt water coming from the shot holes was from the Currey well, into which it had been injected under enormous pressure, and that its presence in the shot holes was the result of appellants’ failure to cement the salt water injection pipe so that it would prevent such water from rising in the hole to- other strata near the surface, passing into, impregnating and polluting same and then to pass into and rise in the shot holes to cause still more damage. Assuming that appellants are correct in their contention that the findings of negligence because of their failure to “tap or seal off” the seismograph holes are without support, appellants’ knowledge of the existence of such holes raised a question of fact concerning whether they should have foreseen the shot hole damage resulting to appellees’ land by the injection of salt water into their well in the manner shown by the evidence. The error, if any, in connection with the finding that appellants were negligent in failing to “tap or seal off” the shot holes is not reversible.

Appellants’ 12th through 29th points relate to injury because of salt water escaping from the burn pit and from surface equipment installations. The Currey well, the burn pit and other facilities used in connection with the oil produced on the Ingram property are all located on a water shed or drainage area leading into appel-lees’ large stock tank. The oil well is near the high point of the property and there is a gradual slope downward going north from the well. The salt water from the well was disposed of into the small bum pit which was down hill from and about ISO feet north of the well and in porous ground. It was found by the jury that appellants failed to have adequate walls or dikes around the burn pit, that such failure was negligence and a proximate cause of the injury to appellees’ property; that the failure of appellants to line their burn pit was negligence and a proximate cause of the injury to appellees’ property; that the construction and location of appellants’ burn pit on appellees’ property was negligence and a proximate cause of the injury to appellees’ property; that the manner in which appellants maintained their injection equipment was negligénce and a proximate cause of the injury to appellees’ property; that appellants disposed of salt water from their well in such manner as to pollute appellees’ property and such action was a proximate cause of the damage to appellees’ property. Appellants urge points contending that there is no evidence to support any of these findings or alternatively that the evidence was insufficient and that such findings are against the great weight and overwhelming preponderance of the evidence. In our opinion these points are not well taken.

Several witnesses testified to facts relevant to a determination of the above issues. Appellee, Richard Mitchell, testified that salt water which comes from the well into the burn pit would seep out of the burn pit through gravel “which was connected to the tank” and then drain down across the pasture killing grass land and proceed into and contaminate appellees’ water tank; that when salt water would get loose at the well, even though it was not enough to overflow the dike, the rocky gravelly condition of the soil permitted it to go through the dike and on down the incline toward appellees’ stock tank. Appellee, Mrs. Jolene Mitchell, testified that appellants ran their salt water into the burn pit and that she never saw them do anything to the burn pit to make it suitable for holding the salt water; that salt water in the pit sometimes ran over or overflowed the pit; that this happened on several occasions and when it did the ground around the pit would be saturated with such salt water and that it would run down the hill. She stated that more and more area was being wasted or used, and contaminated by salt water seeping out of the burn pit and overflowing therefrom. She stated that she protested to appellants concerning such use of the property.

The witness Sutherland testified concerning the injury from salt water escaping from the burn pit and from surface equipment installations. He stated that the burn pit was not built on level ground but was cut into the side of a hill which falls off north of the well. Sutherland stated that in his opinion such a location of the burn pit caused the lower side of the dike to catch the primary weight of the water and seepage and that it “is rather easy for it to seep through the'dike going down hill to the west and north.” The witness stated the opinion there would be more salt water contamination to the surrounding area from a tank that was so situated on the side of a hill than one that was on level ground. Sutherland stated that in his opinion it was not a prudent operation “to construct a burn tank;” that it would not be reasonable, prudent oil operation to build and use the burn pit as constructed on the Ingram property in disposing of salt water for a period of four or five months. Sutherland further testified that because of the nature of the top soil at the site of the burn pit, it would in his opinion not be reasonable prudent operation to put salt water into the burn pit constructed and located as was the Ingram’s or the Currey burn pit on the Ingram property, without either treating the pit or lining it in some manner to keep it from seeping salt water.

There was also evidence to the effect that various lines, fittings and the pump used by appellants overflowed, broke, leaked or sprayed salt water on appellees’ land. Appellee Richard Mitchell testified that the salt water injection system including pipes, packing and the pump leaked salt water frequently, about once or twice a week, in substantial quantities and sometimes would “spray out” over the ground; that as a result the surface of the land would turn white and all vegetation thereon would die; that on some occasions the equipment of the salt water injection system would fail and salt water would run into the pit where it would seep out or run over and damage appellees’ land. This evidence supports the findings of the jury that appellants were guilty of negligence in maintaining their equipment in such a manner that it frequently leaked salt water.

We overrule appellants’ points 12 through 29 urging that there was no evidence, or insufficient evidence to support the findings there complained of. We also hold, after an examination of all the evidence, that such findings are not against the great weight and preponderance of the evidence.

Appellants’ points 30 through 35 complain of the action of the court in granting the Mitchells’ judgment for the loss of sheep. We overrule appellants’ contention that the evidence shows the Mitchells were guilty of contributory negligence as a matter of law in failing to protect their sheep. Appellants also contend that there is no evidence or in the alternative insufficient evidence to show that appellants’ negligence, if any, proximately caused any injury to the sheep, and in any event the findings to that effect are against the great weight and preponderance of the evidence.

It is well settled that an oil and gas lessee is liable in damages for negligent operations causing the death of livestock. Humble Pipe Line Co. v. Day, Tex.Civ.App., 172 S.W.2d 356 (Error Refused). The record shows that because of appellants’ negligent operations salt water from the Currey well polluted the stock tank on appellees’ land and that Mitchells’ sheep drank water from such tank. The Mitch-ells alleged that the loss of value in their flock of sheep because of death, loss of weight and barrenness as a result of drinking the polluted water was in the sum of $4,000.00. The jury found that the drinking of such polluted water resulted in a loss in value of the sheep in the amount of $1360.00. Mitchell testified that after the salt water began to flow into the stock tank from which his sheep drank they began to die; that they would come in from the field, would sometimes get as far as the barn and sometimes would barely get out of the stock tank and “would just lay down and die.” He stated that he lost five or six sheep in this manner in 1962, and also lost some in 1963; that the sheep which did not die did not do well, that they “wouldn’t gain weight and grow off like they ought to”, and would also lose weight; that his lamb crop in 1962 and 1963 was down from what it had been in preceding years; that in 1963 he finally sold all the sheep he had left after the others had died, and since then has had no sh^ep on the premises. He stated that the loss in value of his sheep either through death, loss of weight and barrenness as a result of drinking such salty water has been heavy; that it would run “around three to four thousand dollars.”

In our opinion there was ample pleadings and evidence showing that appellants’ negligence in the disposal of salt water from their well resulted in the pollution of the stock tank in question, and that such negligence proximately caused the damage to the Mitchells’ sheep. We overrule appellants’ contention that there was no pleadings, no evidence or insufficient evidence to support such findings and that such findings are against the great weight and preponderance of the evidence.

Appellants’ points 36 through 45 are related to land damage. The jury found that the salt water which escaped from the Currey burn pit produced damage to the Ingram property as a whole; that the salt water which leaked from the shot holes in question produced damage to the Ingram property as a whole; that the amount of land so damaged was 160 acres; that such damage was not the result of an unavoidable accident and that the amount of land reasonably and necessarily damaged in the operation of the Currey well was 1 acre; that the fair market value of the surface of the Ingram land immediately before the salt water damage was $100.00 per acre or a total of $16,000.00, and that the fair market value of the surface of such land after the salt water damage was $11,200.00.

Several witnesses who were land owners in the community testified that they were familiar with the value of land in the vicinity and were familiar with sales of nearby property. Their testimony concerning the value of the land in question before and after salt water damage amply supports the finding of the jury. These witnesses were competent to testify concerning the value of such land. Breithaupt v. State, Tex.Civ.App., 321 S.W.2d 361 (Ref. N.R.E.) ; State v. Griffis, Tex.Civ.App., 300 S.W.2d 220; Tennessee Gas Transmission Company v. Dishman, Tex.Civ.App., 303 S.W.2d 471 (Ref. N.R.E.); City of Teague v. Stiles, Tex.Civ.App., 263 S.W.2d 623 (Ref. N.R.E.); Housing Authority of City of Galveston v. Henderson, Tex.Civ.App., 267 S.W.2d 843. We overrule appellants’ contention that there was no pleadings, no evidence or at least insufficient evidence that salt water from the burn pit or from the shot holes produced damages to the property as a whole. Texas Pacific Coal & Oil Co. v. Taylor, Tex.Civ.App., 47 S.W.2d 1110; McDaniel Bros. v. Wilson, Tex.Civ.App., 70 S.W.2d 618 (Writ Ref.).

The jury further found that the value of Mitchell’s leasehold interest had been reduced by salt water damage, and that the loss of profit sustained by Mitchell directly resulting from salt water damage to the land in question was $300.00. We overrule appellants’ points contending that the Mitchells’ recovery for the loss of profit because of reduced crops, and the loss sustained in the value of their sheep herd permits a double recovery, that is, a recovery by the owner of the leasehold estate and a recovery by the fee owner of the land. The record shows that the surface lessee, Mitchell, had acquired his surface lease prior to the execution of the mineral deeds held by appellants. Under such circumstances appellant was liable for any injury to Mitchell’s growing crops on the land, in addition to their liability for permanent damage thereto. Stephens County v. Mid-Kansas Oil & Gas Company, 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566; Cement Gun Co. v. Brooks, Tex.Civ.App., 152 S.W.2d 815, (Error Dismissed.). Mitchell testified in detail concerning his loss of profit because of reduced crops resulting from salt water damage to the land in question. His testimony amply supports the finding of the jury that such loss of profit to his crops amounted to $300.00.

In appellants’ 46th point it is contended that the court erred in submitting the charge because it was erroneous in its entirety, in that, (a) it combines two different transactions, one of which relates to seismograph holes and the other to a burn pit near the producing oil well, (b) that such transactions are separate and distinct and involve distinct causes of action, (c) and that there is no evidence of the market value of Ingram’s land before and after either of said transactions considered separate and apart from the market value of such land before and after the other said transaction. This point is not well taken. It is true, as appellants contend, that appel-lees’ claim involves two different transactions. The evidence and the findings of the jury, however, are to the effect that the property was damaged as a whole as a result of each of said transactions. In Landers v. East Texas Salt Water Disposal Company, 151 Tex. 251, 248 S.W.2d 731, it was held where tortious acts of two or more wrongdoers produce an indivisible injury, all of the wrongdoers will be held jointly and severally liable for the entire damage and that the injured party may proceed to judgment against any one separately or against all in one suit. We see no reason why a plaintiff who relies upon two different transactions, which are separate and distinct but the damage from each extends to the property as a whole, should be burdened with a requirement more strict than that applied where there is more than one wrongdoer. The permanent land damage from both transactions relied upon by appellees extended to the land as a whole. The court did not err in failing to group inquiries concerning certain areas of misconduct with issues of negligence and proximate cause and damages so that the damages from each of said transaction could be distinguished from damages occurring by reason of the other.

We have examined all of the appellants’ points and they are overruled.

The judgment of the trial court is affirmed.