author: CHAPMAN, Justice.

text:
    Buck RAMSEY, Appellant, v. COLDWATER CATTLE COMPANY, Inc., Appellee.
    No. 7597.
    Court of Civil Appeals of Texas. Amarillo.
    March 28, 1966.
    Rehearing Denied May 9, 1966.

      John J. Watts and Clyde C. Bishop, Odessa, for appellant.
    Simpson, Adkins, Fullingim & Hankins, Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal by Buck Ramsey, plaintiff below, from a judgment for Coldwater Cattle Company, Inc. based upon a verdict instructed by the court after the plaintiff had introduced his testimony and rested his case.

It is a common law action arising out of an injury suffered by appellant in his capacity as a cowboy employee for appellee, Coldwater Cattle Company, Inc., a cattle ranching corporation. Appellant was employed in about July 1962 as a cowboy for appellee. Bob Brandenburg was general manager of the corporation, but Tim Ke-gans was the foreman in charge of getting the work done on the ranch and had complete authority to hire and fire cowboys. He hired Buck Ramsey.

On or about October, 9, 1962, after Buck had caught a horse by the name of Squirrel to go to work with Kegans and two other cowboys, the foreman asked him if he had not ridden Squirrel since he had ridden Cinnamon. Kegans told him he should try to keep all his horses ridden in turn, “and said why didn’t I ride Cinnamon.” Buck put an easy stop bridle or hackamore on Cinnamon which Kegans told him the other cowboys had used on the horse and seemed to work bettqr on him, saddled him, and as he started to mount the horse, he started pitching before Buck secured himself in the saddle. After bucking for more than 700 feet he finally threw his rider and as a result thereof appellant was seriously injured. It is for damages growing out of such injuries that suit was filed.

Since the case is before us upon a judgment based upon an instructed verdict, we believe it is proper to first state the rules by which we must be guided in considering the evidence in order to determine if the court committed reversible error in refusing to submit any issues to the jury.

In making this determination an appellate court must view the evidence in the light most favorable to the losing party, and must indulge against the instruction every inference that may properly be drawn from the evidence.

The next logical question to be decided is whether Tim Kegans was a vice principal or a fellow servant.

The Supreme Court of Texas has consistently held for many years that in the class of cases such as the one in question (not affected by legislation regarding fellow servants) that if a fellow servant, in addition to his authority to direct and supervise the work of those under him, has authority to hire and discharge such subordinate servants, he becomes a vice principal and his wrongful act, negligence, unskillfulness or default is that of the master. “ * * * except in instances where such negligence is related to those duties of the master which are regarded as nonassignable and nondelegable, such as furnishing the servant a reasonably safe place to work, or reasonably safe instruments with which to perform his service, or the selection of careful and competent coem-ployés * * * ” Lantry-Sharpe Contracting Co. v. McCracken, 105 Tex. 407, 150 S.W. 1156. See also McCorstin v. Mayfield, Tex.Civ.App., 274 S.W.2d 874 (dismissed by agreement.)

Perhaps the nearest case to the instant case concerning the type work being performed is Waring v. Harris, Tex.Civ.App., 221 S.W.2d 345 (writ ref.). This was a suit by a cowboy for injuries received in flanking a calf preparatory to dehorning, vaccinating and marking the calves on a ranch. He contended that Roy Joiner, the foreman, was a vice principal and not a fellow servant, that Joiner was negligent in letting the calf into the pen to be flanked because it was too large, and that such negligence was the act of the master.

The evidence in that case showed that the foreman, Roy Joiner, did not have the authority to hire and fire the other ranch hands, whereas, in our case, Tim Kegans not only had that full and complete authority but the responsibility of getting the work done on the ranch. We believe this brings him clearly within the rule laid down in the Lantry-Sharpe case and reaffirmed by the Supreme Court in the Waring case by a stamp of “writ refused.” These rules long adhered to by the Texas Supreme Court and applicable to the class of cases into which the instant case falls are founded upon the common law. Accordingly, we hold that Tim Kegans was a vice principal of appellee.

It becomes necessary now to look to the facts relating to the injury to determine if appellee did that which an ordinary prudent person would not have done under the same or similar circumstances, or failed to do that which such a person would have done under the same or similar circumstances, which proximately caused appellant’s injuries.

Appellant testified that when Tim Kegans employed him there was not anything particular said with respect to his furnishing all his gear necessary to his work but that he understood he would have to furnish the essential gear. He also testified that Mr. Kegans asked him when he employed him if he had a bridle and a bronco hackamore.

“Q. Is that some kind of bridle like this in this suit?
“A. Similar; but a bronc bit doesn’t have the shank or levers.
“Q. Doesn’t have a bit to go into the animal’s mouth?
“A. No.
“Q. This easy stop didn’t have a bit either?
“A. No, sir.
“Q. You knew you were going to furnish that cowboy gear ?
“A. Yes, sir.
“Q. And that included saddle and spurs ?
“A. Yes, sir.
“Q. And included whatever kind of bridle you wanted to use.
“A. Yes, sir, whatever kind of bridle that I was going to use.
“Q. And you knew you were going to furnish them ?
“A. Yes, sir.
“Q. And you did furnish them?
“A. Yes, sir.
“Q. Well, during the time you worked there at the ranch did Coldwater Cattle Company furnish you any gear at all ?
“A. Just food, no gear, just food.”

Mr. Kegans testified the hackamore or easy stop belonged to him and that appellee did not furnish any riding gear of any type to him or any other cowboy; that the bridle or easy stop was a home-made piece of equipment; that it had been given to him; that it was in the same condition as far as having repairs made on it as when it was given to him.

Buck testified that after Mr. Kegans mentioned to him that the easy stop was the bridle they had been using on Cinnamon and had asked if he wanted it, he asked Kegans for permission to use it. He also testified that if one of the cowboys needed a piece of gear he didn’t have it was customary to borrow it from some other cowboy. Buck also testified:

“Q. Well, when he handed it to you, you looked at, and it looked in order, didn’t it?
“A. It looked all right.”

Though the record shows that appellant was an experienced cowboy and had ridden many bucking horses successfully, even some in rodeos, for some unexplained reason he lost his left rein when the horse first started bucking. If we understand Buck’s testimony, it was not until Cinnamon had bucked approximately 700 feet that the right shank of the easy stop bridle broke. Since he was using only the right rein for any balance the reins would give him, it follows that double pressure was placed on that side of the easy stop and on the shank that broke.

With respect to the bridle, appellant alleged negligence in the following particulars, each of which he asserted was a proximate cause of his injuries:

“(c) In furnishing him an easy stop bridle which was unfit for the purpose for which it was intended;
“(d) In furnishing him an easy stop bridle unsafe for use;
“(e) In failing to warn the plaintiff that the bridle was unsafe;
“(f) In furnishing him a bridle which the defendant knew had been welded and was defective and unsafe for use or in the exercise of ordinary care would have known that the bridle was defective and unsafe for use;
“(g) In failing to make a reasonable inspection of the bridle, a specialty tool, to determine if said bridle was safe for use;”

We do not believe there was sufficient evidence of negligence on the part of appellee concerning the easy stop bridle or hackamore to present to the jury. In the first place Buck himself testified he asked to use the bridle. Secondly, he understood he was to furnish his own gear. Thirdly, the evidence showed without contradiction that appellee never furnished him any gear during any of the time he worked there, never furnished any other cowboy any riding gear of any type, and the evidence is without contradiction that when one cowboy did not have a piece of gear he needed he borrowed it from another cowboy. Additionally, the evidence shows the same easy stop had been used by other cowboys on the same horse without incident and that when it was handed to Buck he looked at it before he put it on the horse and it looked in order.

We have not been cited to any supreme judicial expression in Texas on the exact question of whether a cowboy contracting to furnish his own gear, none of which is furnished by the master to any cowboy, relieves the master of negligence, where the cowboy requests the use from a vice principal of the latter’s own personal gear, nor have we found any such case in our research.

The Supreme Court of Mississippi in Texas Co. v. Mills, 171 Miss. 231, 156 So. 866, has said:

“The master’s duty to furnish his servants with safe instrumentalities with which to do their work is not a contractual, but a common-law, duty, which the master cannot delegate to another. The one exception, if exception it he, to this rule, is that a servant injured by a defect in an instrumentality which he himself had contracted to furnish, * *, relieves the master of any duty to him relative thereto. Hegwood v. J. J. Newman Lbr. Co., 132 Miss. 487, 96 So. 695; Hooks v. Mills, 101 Miss. 91, 52 So. 545; Waterman-Fouke Lumber Co. v. Miles, 135 Miss. 146, 99 So. 759; Edward Hines Lbr. Co. v. Dickinson, 155 Miss. 674, 125 So. 93.” (All emphases herein are ours).

Buck admitted he understood he was to furnish his essential gear. If the easy stop was essential to the riding of Cinnamon, then by contract it would have been his duty to furnish it. In any event, the record is without contradiction that, at least impliedly, the appellee had a definite understanding with all cowboys that it was not to furnish any of their riding gear and the cowboys understood that fact.

The Dallas Court of Civil Appeals in Great Atlantic & Pacific Tea Co. v. Garner, Tex.Civ.App., 170 S.W.2d 502 (ref. w. m.) has also said: “ ‘ * * * the master may relieve himself of liability by intrusting to his servant the duty of inspection and care in respect of a place * * * by contract he is bound to make safe.’ ” Buck admits he looked at the easy stop when it was handed to him and that it looked in order. There is not any evidence in the record indicating he was obligated to use the easy stop. To the contrary, the evidence here is without contradiction that Buck requested the use of the vice principal’s easy stop after Kegans told him other cowboys had been using it on Cinnamon. It is also without contradiction that appellee furnished no riding gear to any of the cowboys, including Tim Kegans. It is also without contradiction that the exact same bridle or hackamore had been used before by other cowboys on the same horse without incident. We believe these uncontradicted facts themselves relieved the trial court of any responsibility to submit issues to the jury upon negligence concerning the easy stop. Additionally, even if it could be said that appellee was responsible for the bridle owned, not by it, but by a vice principal, the use of which was requested by appellant, Buck was still required to inspect a common piece of gear with which he was familiar as an experienced cowboy. The San Antonio intermediate appellate court in a case involving a defective ladder, has said in quoting from the Supreme Court of Texas: “‘A master is not required to inspect the common tools and appliances which are committed to the custody of a servant who has the capacity to understand their character and uses.’ ”

In Southwestern Telegraph & Telephone Co. v. Tucker, 102 Tex. 224, 114 S.W. 790 the Supreme Court of Texas has said: “We know of no rule of law that imposes upon the master the duty of looking after defects in objects with which the servants are working, where there is nothing to indicate that any such defect existed.”

Where the master, as in this case, at least by implied contract furnished nothing in the way of riding gear to any cowboy, including its vice principal, it does not appear reasonable that it would be under any obligation to inspect such vice principal’s personal gear which it did not furnish.

Under the record before us, we feel we have no choice except to hold there was not any probative evidence to go to the jury on the negligence of appellee concerning the easy stop bridle.

Appellant next asserts error of the court in holding as a matter of law that appellant could not recover under the doctrine of discovered peril.

Only two people were witnesses to the unfortunate incident, Tim Kegans and appellant. The cowboys, Wafford and Moore, had already ridden out of sight. Buck did not know the exact proximity of Kegans to him when he mounted Cinnamon but had the impression the foreman was near by waiting for him. He admitted Kegans may have had his back “partly toward him.”

There is testimony to the effect that trained rodeo horses can be forced to run into a bucking horse with their shoulders and stop him from bucking. Kegans testified the horse, Pocawana, on which he was mounted could not be forced up to a bucking horse, that he tried to get his horse up to Cinnamon but that Pocawana “just wouldn’t let me.” Buck admitted that sometimes “ * * * an old horse, ranch horse, will go up to a bucking horse and sometimes he will not.” It is understandable that he was too busy trying to stay on Cinnamon to actually know what Kegans did to try to help him out of his position of peril.

“Q, As a matter of fact, Buck, you don’t know whether Tim Kegans tried to get to you to get the reins, or not?
“A. Like I say, I can’t testify to what his actions were.
“Q. You don’t actually know whether he did or not; whether he may have actually been trying to get to you to get your reins ?
“A. Might have been.
“Q. In fact, you just don’t know?
“A. No, but I—
“Q. That’s all—
“Mr. Watts: Let him go ahead.
“A. Sir?
“Mr. Watts: Go ahead and finish your answer.
“A. I never saw him that close to me.
“Q. Well, you don’t know whether he spurred his horse at a gait to get up to you and grab the reins or not ?
“A. No.”

It has been textually stated that:

“The doctrine of discovered peril or last clear chance means that the last chance must be a clear one. It implies thought, appreciation, mental direction, and lapse of sufficient time to act effectually on the impulse to save another from injury. And, if a person, after having become aware of the danger of injury, could not have averted the calamity by the use of the available means, he is not responsible for its occurrence.” 40 Tex.Jur.2d 628, sec. 113.

The most recent Texas Supreme Court expression cited by the statement just quoted is R. T. Herrin Petroleum Transport Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422. There the court said:

“ * * * one who discovers another in a perilous position and fails to use the means at his disposal to prevent injury is liable for the injuries resulting from such failure.”

With respect to the requirement that it be shown that the party charged with negligence discovered the perilous position in time to avoid the injury by the use of means available at the time, see also Ruggles v. John Deere Plow Co., Tex.Civ.App., 146 S.W.2d 456, 460 (writ ref.) by our court and Texas & P. Ry. Co. v. Breadow, 90 Tex. 26, 36 S.W. 410, 412.

In Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112, the Texas Supreme Court stated the three essential elements of discovered peril are (1) the exposed condition brought about by the negligence of the plaintiff; (2) the actual discovery by defendant’s agents of his perilous situation in time to have averted — by the use of all the means at their command, commensurate with their own safety — injury to him; and (3) the failure thereafter to use such means.

That court in Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 562 said:

“The quantum of proof required of the plaintiff on these elements of discovered peril in order to entitle him to have them submitted to the jury was such facts and circumstances as taken together with all reasonable inferences therefrom constituted some evidence of probative force of their existence. White v. White, 141 Tex. 328, 172 S.W.2d 295; Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725; Fitz-Gerald v. Hull, [150] Tex. [39], 237 S.W.2d 256.”

There is just no probative evidence that Kegans could have extricated Buck from his perilous position by the use of all means at his command, commensurate with his own safety. He testified his horse, Poca-wana, “was not too safe” and that he just would not go up to the bucking Cinnamon.

Accordingly, we hold there was not any probative evidence to raise the doctrine of discovered peril.

The next series of issues urges error of the trial court in holding as a matter of law that appellant failed to show negligence in furnishing the horse Cinnamon for appellant to ride. He alleged negligence:

“(a) In furnishing him a horse which was unsafe to ride;
“(b) In failing to warn the plaintiff that the horse was unsafe;”

The evidence shows by appellant himself that in 1958 he started doing cowboy work off and on and that when he went to work for appellee he was an experienced cowhand. Buck testified in effect that to the best of his memory, when he went to work the ranch gave him a mount of nine using horses and three broncos. Among those using horses was Cinnamon, a young horse four or five years old. Buck had ridden Cinnamon a short time before around in the corral and out in a little horse pasture for about five minutes “to check him out and see what he would do.” He did not discover anything dangerous about him but did notice that probably his regular bits didn’t work well in the horse’s mouth. He admitted Cinnamon was a good, healthy, sound animal and there is not any intimation anywhere in the record to the contrary. Kegans’ testimony was to the effect that he had no information of the horse having ever pitched or having been unsafe in any respect.

A rancher from Monahans by the name of Thornton testifying for appellant said in effect that horses should be well broken and when they are they normally will not pitch. He admitted “there are always exceptions with these horses.”

We have been cited to only one Texas horse case from which any analogy might be made. The Fort Worth intermediate appellate court in Robb v. Gilmore, Tex.Civ.App., 302 S.W.2d 739 (ref. N.R.E.) held:

“A master’s duty in furnishing a horse or other animate thing to a servant for doing the master’s work stands upon the same basis as furnishing tools or other inanimate instrumentalities. Warner v. Oriel Glass Co., 319 Mo. 1196, 8 S.W.2d 846, 60 A.L.R. 448; George H. Hammond Co. v. Johnson, 38 Neb. 244, 56 N.W. 967; Central Lumber Co. v. Porter, 139 Miss. 66, 103 So. 506, 42 A.L.R. 221; Arkansas Smokeless Coal Co. v. Pippins, 92 Ark. 138, 122 S.W. 113. The master is bound to use reasonable diligence to furnish a safe animal, and he is bound by what he actually knew or by the exercise or reasonable diligence might have known. Marks v. Columbia County Lumber Co., 77 Or. 22, 149 P. 1041.”

We are not willing to concede that the mere fact that a young cow horse on a large ranch, which breeds and trains its own remuda, bucks on occasion is evidence that such horse is unsafe for an experienced cowboy to ride or that the ranch would be negligent in furnishing such a horse to an experienced cowboy. In fact, we believe it is common knowledge that in a remuda of fifty horses, as shown here, some of them would be inclined to pitch on occasion. It is a risk incident to the work which he was employed to do and was assumed by him when he accepted the job as a cowboy just as flanking a calf was a risk assumed in Waring v. Harris, supra. This is especially true when we consider that Buck was furnished three broncos in his mount. We believe it is common knowledge that young horses with high spirit are sometimes prone to pitch when first saddled on cool mornings. But even conceding the rule of law quoted in Robb v. Gilmore, supra, is applicable to a ranching operation such as that of appellee, there still is not any negligence shown here in the furnishing of Cinnamon. Appellant had never heard of Cinnamon pitching. Kegans admitted that he had never checked with Keith Keeney, who broke him to ride, about his conduct, but he said “ * * * I have seen them ride him out there every few days, you know. If a horse is ordinarily bad or anything like that we get shut of him.” Additionally, the mare in Robb v. Gilmore, supra, was shown to have been physically unsound for ranch work because of a fistula in her left shoulder, admitted by the employer.

In a much stronger case for the claimant than the instant case, which involved a bull rather than a horse, the Waco Court of Civil Appeals in Dawkins v. Van Winkle, Tex.Civ.App., 375 S.W.2d 341 held there was no evidence of probative force that the animal had vicious propensities which were known to the owner. Yet, in that case a ranch employee had been attacked by the bull once before his fatal injury when he had punched him with a pitchfork. The record is completely without proof here that Cinnamon had ever shown any dangerous propensities before the occasion in question, or had ever bucked with any rider before the date on which he injured appellant. Therefore, we are compelled to hold appellant’s points urging negligence in the furnishing of Cinnamon as a part of appellant’s mount are without merit.

The physical condition in which the unfortunate incident here under consideration has left this previously strong, healthy, virile young man would tear the heart strings of anyone studying the case, but we are hound by the facts before us and the rules of law applicable thereto rather than by our emotions.

For all the reasons stated, we do not believe negligence against appellee, which was a proximate cause of the serious injuries and resulting damages to appellant, was shown in the record.

Accordingly, the judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

It appears from appellant’s extended motion for rehearing, supplemental argument and various briefs that we failed to properly communicate our holdings in our original opinion. We are accused, and perhaps with some justification, for making statements which indicated we were drawing a distinction between the vice-principal and appellee. It is very difficult for this writer to formulate an opinion in a case with close questions and verbose briefs on the part of the complaining party without making some obiter dicta statements. In studying other opinions it is obvious that the fault is not uncommon at all levels of both the state and federal judiciary. We clearly held that Kegans is a vice-principal under the facts of this case. If any statements we made, which were necessary to the conclusions reached, may be interpreted as holding his conduct was not that of the appellee, we disavow such statements with the exception of our application of Texas Co. v. Mills, supra, to our case.

We are first taken to task for the citation and application of the Waring case to our own. Since both appellants were admittedly engaged in ranch work and since appellant agrees with our vice-principal holding his complaint could only be applicable to our statement concerning assumption of risk. We still hold when appellant accepted employment as an experienced cowboy on a large ranch such as appellees (which breeds and trains its own cowhorses) he assumed the risk that in a remuda of fifty horses there would be some young, high-spirited horses such as Cinnamon that would buck on occasions, just as the appellant in the Waring case accepted the risks incident to flanking calves when he accepted employment as a cowboy. This assumption is further compelled by the fact that appellant was assigned for his regular work three broncs in addition to his mount of nine using horses, thus indicating the responsibilities of the cowboys to train and ride broncs.

On Page 24 of his motion for rehearing appellant infers that we held Cinnamon was one of the three broncs assigned Buck to ride. Obviously, counsel has not very carefully read our opinion. We clearly stated that appellant “testified in effect that to the best of his memory, when he went to work the ranch gave him a mount of nine using horses and three broncos,” and that Cinnamon was one of the using horses. His exact words were, “ * * * he gave me three broncos, and nine using horses, for regular work” and then stated Cinnamon was not one of the broncos.

As in his numerous other briefs, appellant quotes extensively from Robb v. Gilmore, supra, the only Texas horse case cited concerning negligence in furnishing Cinnamon. The facts are so completely different as to furnish no guide in our case except as to some general rules of law. The mare responsible for the injury in that case had a diseased condition in her shoulder called a fistula that had required serious surgery and which left her without free movement in her shoulder muscles, causing her to stumble consistently while being ridden. On the contrary, Cinnamon was a strong, healthy, able-bodied horse with no physical defect of any type, so far as this record shows.

After stating in Robb v. Gilmore that a master’s duty in furnishing a horse or other animate thing to a servant for doing the master’s work stands upon the same basis as furnishing tools or other inanimate instrumentalities, the court then held the master “is bound by what he actually knew or by the exercise of reasonable diligence might have known.” We think it is significant that in Robb v. Gilmore the court also held:

“The master is bound to use reasonable diligence to furnish a safe animal, and he is bound by what he actually knew or by the exercise of reasonable diligence might have known. Marks v. Columbia County Lumber Co., 77 Or. 22, 149 P. 1041.
“ ‘To hold a master responsible, a servant must show that the appliances and instrumentalities furnished were defective. A defect cannot he inferred from the mere fact of an injury. There must he some substantive proof of the negligence. Knowledge of the defect or some omission of duty in regard to it must be shown.’ Looney v. Metropolitan R. Co., 200 U.S. 480, 26 S.Ct. 303, 305, 50 L.Ed. 564. 'Neither the existence of a legal duty nor a breach thereof can be presumed, but must be proved.’ Railway Express Agency v. Robinson, Tex.Civ.App., 162 S.W.2d 984, 987.” (Emphases added).

With respect to the furnishing of Cinnamon, compliance by appellant with the rules of law just quoted in the last paragraph are wholly lacking in the record. There is just no substantive proof of negligence concerning Cinnamon with respect to the type ranching operation under which Buck accepted employment, nor is there a showing of an omission of duty in regard to discovering the characteristics of the horse.

The courts do not hold that more than reasonable diligence must be exercised by the master in furnishing a safe animal, but reasonable diligence. Kegans testified “ * * * I have seen them ride him out there every few days” and that if a horse is bad they dispose of him. We know of no better method to exercise diligence in determining dangerous propensities in a cowhorse than to see him at work every few days. We recognized in our original opinion that an appellate court must view the evidence in the light most favorable to the losing party but this rule does not preclude the requirement that the one seeking recovery must prove a cause of action. There is just no proof here that Cinnamon was not a sound, healthy horse or that he had ever shown dangerous propensities-Buck had ridden him once before the occasion in question without incident and admitted he never heard of him pitching with anyone.

In addition to his reliance upon Robb v. Gilmore, supra, which in our opinion does not militate against our findings and conclusions, but supports them, appellant, as part of his motion for rehearing, urges Williams v. Hofer, 30 Wash.2d 253, 191 P.2d 306, and Padilla v. Winsor, 67 N.M. 267, 354 P.2d 740. Both are easily distinguishable from our case. In the former the claimant was a fifty-seven year old man hired principally to do farm work. The horse responsible for his injury had been purchased at a public auction. The owner without actually having any knowledge of the horse or the former owner assured the employee the horse was “broken to ridewhereas, in our case Kegans had known Cinnamon since he was foaled and there is not any evidence that he knew of any dangerous propensities in the horse, though he had seen him ridden every few days. The facts in Williams v. Hofer are just so different to the facts in our case as to furnish no authority for appellant’s contentions.

In the Padilla case the employee was fifty-three years of age. The horse responsible for the injury had thrown the employer at least once before he told the employee the horse was gentle. We have no testimony of any such knowledge on the part of appellee or Kegans in our case. Additionally, that ranch was a two-horse operation in the Padilla case and the owner told the employee he had two horses on the ranch and they were gentle. In our case the ranch was a fifty-horse operation that bred, raised and had the horses trained by the cowboys. This is evidenced by the fact that Buck was assigned three broncs for his regular work in addition to six using horses.

Now, to the easy-stop bridle. It is without contradiction that Buck understood as part of his contract of employment that he was to furnish all his riding gear, which included a bridle and bronc hacka-more. There is no probative evidence that Kegans ever required any cowboy to use his individual easy-stop bridle or hackamore, and it is without contradiction that on the occasion in question he merely mentioned to Buck that the hackamore was the one the other cowboys had been using on Cinnamon and asked him if he wanted it. Buck then requested the use of it. There is not any probative evidence that he was ordered to use it; required to use it, or, in our opinion, even encouraged to use it. Kegans simply made the suggestion that other cowboys had used it on the horse and it seemed to work well. So far as this record is concerned, the decision was left to Buck, and he requested the right to use it and examined it before he put it on the horse. Additionally, foreseeability is completely lacking. The same hackamore had been used on the horse by the other cowboys without incident. There is no reason to believe that the vice-principal could have foreseen that an experienced cowboy such as Buck would lose one rein nor could have foreseen that the very hackamore with which Cinnamon had been ridden many times before would break on the occasion in question.

The record in this case has been diligently reviewed, the testimony (including appellant’s many admissions against interest) carefully weighed, and the rules of law, such as there are applicable to this particular case, carefully studied. All legal inferences required have been indulged in favor of appellant. Still, we are unable to find from the facts of this particular type ranching operation any grounds of negligence which could be a proximate cause of appellant’s very serious injuries.

The motion for rehearing is overruled.

      . Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148; McCarty v. Moss, Tex.Civ.App., 225 S.W.2d 883 (error ref.); Houston Transit Co. v. McQuade, Tex.Civ.App., 223 S.W.2d 64 (error ref.); Speights v. Deon, Tex.Civ.App., 182 S.W.2d 1016 (error ref.); James v. Missouri-Kansas-Texas R. Co. of Texas, Tex.Civ.App., 182 S.W.2d 921.

      , Hugo, Schmeltzer & Co. v. Paiz, 104 Tex. 563, 141 S.W. 518, 519; Young v. Hahn, 96 Tex. 99, 70 S.W. 950.

      . Lantry-Sharpe Contracting Co. v. McCracken, supra; common law rule of decision adopted by the Texas Act of Congress, January 20, 1840, presently Article 1, Texas Revised Civil Statutes, 1925.

      . Swearingen v. Bell, Tex.Civ.App., 307 S.W.2d 132 (N.W.H.).

      . In ranch language a “mount,” probably a colloquialism, consists of the group of horses furnished a cowboy to work with in his regular duties as a cowboy on a ranch. Webster’s New Collegiate Dictionary, 2d Ed., Copyright 1949, G. & C. Merriam Co. defines the word as: “ * * * to furnish with animals for riding.”


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    Ray HODGES et al., Appellants, v. The STATE of Texas, Appellee.
    No. 7711.
    Court of Civil Appeals of Texas. Texarkana.
    April 19, 1966.
    Rehearing Denied May 17, 1966.

      Robert G. Scofield, Lewisville, J. Harris Morgan, Greenville, for appellants.
    F. William Colburn, Asst. Atty. Gen., Austin, for appellee.
   FANNING, Justice.

A condemnation case. The State of Texas instituted proceedings against appellant landowners to condemn for highway purposes 8.814 acres out of a tract of 44.534 acres, leaving a remainder of 35.720 acres. In response to special issues the jury returned a verdict aggregating $20,820.00, which was higher than the values testified to by witnesses for the State and lower than the values testified to by the witnesses for the landowners. The trial court’s definition of “market value” in his charge to the jury, the special issues, accompanying instructions and answers are set out in footnote. Judgment was entered vesting title to the property condemned in the State of Texas and for $41,160.00, the difference in the commissioners’ award (previously withdrawn by appellants) and the jury verdict, against the landowners. Appellant landowners have appealed.

The suit was brought to condemn 8.814 acres in two portions out of an irregularly shaped tract of 44.534 acres. There was a lake on the tract which covered approximately 8.63 acres of the 44.534 acre tract. The lake had a dam and a spillway. The taking did not include the lake but the line of the right-of-way taking just touched a corner of the lake on the spillway side of the lake and the taking included the spillway. Aerial photographs, maps and exhibits depicting the area were introduced in evidence by the respective parties and testimony adduced by the parties with respect to many matters including topography, location, zoning, values and other matters relating to the cause, including, of course, the testimony of expert witnesses on both sides.

The 44.354 acre tract, on the date of taking, April 6, 1964, was located within the city limits of Mesquite, Texas, and was zoned for single family residence.

It is in effect the view of the State that appellants’ land in question was vacant rough rolling land, irregularly shaped, with a considerable portion of it covered by a lake, without much access, and was located in a sparsely developed area in which there was considerable additional vacant land and that it was not suitable land for multi-unit apartment uses and would not be in the reasonably near future. The State’s expert witnesses gave their opinion as to market value of the lands in question and were vigorously cross-examined. The State’s expert witnesses assigned a much lower value to the lands than did appellants’ expert witnesses and one of appellant owners did.

On the other hand it is in effect the view of appellant landowners that their land was very valuable, and that the highest and best use of it was for apartments. Appellants’ witnesses assigned considerably higher values to the property than did appellee’s witnesses.

Appellee presented its engineering witness, Fallwell, who testified to the acreages involved, proved up certain exhibits, described the land in general and testified as to the type of construction to be placed on the part taken.

Appellee presented Smith, a real estate appraiser, who testified that he had been employed to appraise the land in question of appellants, and to the investigation he had made in his appraisal. Mr. Smith proved up certain photographic exhibits and told the approaches he used, and testified concerning the sales of properties he considered comparable to the subject property that he had found in the area and the prices for which they were sold. Mr. Smith then testified that in his opinion the value of the part taken was $8814.00 and that the value of the remainder immediately before the taking was $24,600.00, and that in his opinion the value of the remainder after the taking was $21,000.00, for a total damage of $3,600.00. The total of the value of the part taken and the damages to the remainder, according to Mr. Smith’s testimony was $12,414.00.

Appellee presented another expert value witness, Toland. Mr. Toland, a real estate appraiser, testified that he was employed by appellee to appraise appellants’ property in question. He described the property and surrounding area and sales of properties in the area he deemed comparable and the prices for which they had sold. He further testified that in his opinion the part taken was of a value of $8814.00, that the value of the remainder before the taking was $35,-720.00 and that the value of the remainder after the taking was $30,375.00, for a total damage to the remainder by reason of the taking of $5,345.00. According to Mr. To-land’s value opinions the total compensation due for the taking and damages was $14,-159.00.

Both Mr. Smith and Mr. Toland, appel-lee’s expert witnesses, were fully and vigorously cross examined by appellants’ attorneys. At the conclusion of Mr. Toland’s testimony, appellee rested its case.

Appellants then produced the witness Richards, City Planner for the City of Mesquite, Texas. Mr. Richards told of his duties in his office and his professional and educational background. He testified that he makes recommendations on zoning changes in the City of Mesquite, that some of his recommendations have been turned down by the zoning board and also that some of the zoning board recommendations have failed to be approved by the City Council. He testified to the effect that a request for a zoning change on appellants’ land from single residence to apartment zoning, as of April 6, 1964, would be a logical request. In response to a question by appellants’ attorney: “What would be the — in your opinion, what would be the logical outcome of any logical request for a zoning change?”, he stated, “I can’t say that I would actually have an opinion.” Objections were sustained to appellants’ efforts to secure other answers on the above matter. Mr. Richardson testified as to the factors he considers in making recommendations to the City on the question of change in zoning from residential to apartment zoning, and he testified with respect to other tracts on which he had recommended zoning changes which had been approved and to further factors about the subject property which would influence his recommendation to change the zoning to apartment zoning.

Appellants next presented their witness Hollin, President of Land Planning, Inc. and Mr. Hollin testified as to his professional and educational background, to his experience in appearing before the City and Planning Commission of the City of Mesquite, Texas, and to what he would consider in regard to a possible zoning change on the property in question. He further testified to the effect that if he was asked by the City for recommendations on a zoning change, he would recommend such change to multiple family complex which would include apartments and that based on his experiences, it would have a very good possibility of being approved by the City and that such approval would be very probable. Mr. Hollin also proved up a plan he had prepared to show the adaptability of appellants’ property for apartment purposes and showing one possible plan of development for such purposes, which plan was admitted in evidence. He also explained how in his opinion the property could have been developed before the taking and how the taking would in effect destroy its adaptability for such purposes after the taking.

Appellants’ next witness, Sherman, a real estate appraiser, testified with reference to the study he had made of appellants’ property and to the factors he believed would lead to a highest and best use than for which the property was zoned and stated that in his opinion its highest and best use would be for apartments. Mr. Sherman testified to the effect that in his opinion the land taken would be worth $8,000.00 per acre, totalling $70,512.00, and related what he considered to be comparable sales, some of which were zoned commercial. In Mr. Sherman’s opinion the value of the remainder before the taking was $174,580.00 and the value after the taking was $70,-429.00. According to Mr. Sherman’s opinion the total compensation due the appellants would be $174,663.00. Mr. Sherman’s opinion was based upon the land being available for apartment uses.

Appellants next offered one of the landowners, Mr. Ray Hodges, as a witness. Mr. Hodges testified he was one of the owners of the property in question and was familiar with real estate values in Dallas County, Texas. In his opinion, the highest and best use of the property was for apartment purposes, and he gave his opinion of value on the part taken as $.50 per square foot, of the remainder before the taking of $.50 per square foot and he valued the remainder after the taking at $1,000.00 per acre. In his opinion, as the figures were calculated out, he valued the property taken at $174,240.00 and the damages to the remainder at $737,300.00, for a total compensation figure of $911,540.00.

Appellants next called as a witness Riggs, a builder and investor in real estate, who testified as to real estate developing he had done in the City of Mesquite. Mr. Riggs testified that the property in question would be suitable for apartments, would be the best use of said property, and its value as apartment land to be $3,000.00 per acre on the date of the taking, but if it were apartment zoned, he would value it at $10,000.00 per acre.

As hereinbefore related the jury answered Issue 1, $13,221.00, Issue 2, $53,-580.00, and Issue No. 3, $45,981.00, which verdict resulted in a total compensation of $20,820.00. There was a very wide difference in appellants’ values and appellee’s values. The jury’s verdict found values in between the values given by appellants and appellee but much nearer to the values testified to by appellee’s witnesses than to the values testified to by appellants’ witnesses.

Appellants present 8 points of error on appeal. By point 1 appellants contend to the effect that the trial court erred in failing to admit in evidence the testimony of appellants’ witnesses Hollín, Sherman and Riggs as to whether there would be a probable zoning change as of April 6, 1964, the date of taking, involving appellants’ tract within the reasonably foreseeable future from such date and as to what such change would be disregarding any consideration for a highway.

A short résumé of part of Mr. Hollin’s testimony has been heretofore stated. Several objections to Mr. Hollin being asked to testify as to a probable zoning change were sustained by the court before he testified on this matter. These objections were to the effect that a proper predicate had not been laid to show him qualified to express stich an opinion. However after further testimony appellee made no further objections to this line of testimony and Mr. Hol-lin gave his opinion to the effect that his recommendation on a zoning change of appellants’ property to apartments would very probably be granted by the City of Mesquite.

The testimony of the witnesses Sherman and Riggs has also been carefully examined. The trial court was apparently of the view that the witnesses Sherman and Riggs had not related sufficient facts to show that they were qualified to express an opinion on reasonably probable changes in the zoning of appellants’ property in the City of Mesquite, Texas, in the near future. The question of whether an expert is sufficiently qualified to express an opinion is a matter addressed to the sound discretion of the trial court. 23 Tex.Jur.2d 623, Sec. 417; State v. Evans, Tex.Civ.App., 340 S.W.2d 99, wr. ref., n. r. e. (1960). Further, a clear abuse of that discretion must be shown before the trial court’s action will be overturned. Foley Bros. Dry Goods Co. v. Settegast, Tex.Civ.App., 133 S.W.2d 228, writ refused (1939). We hold that this record does not show an abuse of discretion on the part of the trial court in excluding the matters complained of by appellants in their first point.

Furthermore, the trial court also submitted the definition of market value suggested by the Supreme Court of Texas in City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954). We find that appellants’ point 1 does not present reversible error under the record in this cause and the same is overruled.

Appellants by point 2 contend to the effect that the trial court erred in failing to strike the testimony of appellee’s expert witness Smith as to the damages caused by the condemnation because Smith stated on cross examination that from an appraisal standpoint he did not consider the spillway of landowners’ lake as being within the taking. Mr. Smith duly qualified as a real estate appraisal expert, and having so qualified and having testified that he had an opinion as to market value of the property in question he became prima facie qualified to express his opinions on market value of landowners’ property. His testimony became admissible and the question of what weight would be given to it was a matter to be determined by the jury, the trier of the facts in this case. The fact that his failure to include the taking of the spillway was one matter on which his appraisal was incorrect, however while this would tend to weaken his opinion on values in this respect, it would go to the weight of his testimony and would not be sufficient cause to strike his entire testimony. In this connection see State v. Jett, Tex.Civ.App., 358 S.W.2d 941, no writ. Furthermore, viewing the record as a whole, it is our view that appellants’ point 2 does not present reversible error. Rule 434, Texas Rules of Civil Procedure. The testimony of appellee’s witness Toland allowed a value of $1,000.00 for the construction of a new spillway in the event the State destroyed the spillway. (There was also testimony in the record to the effect that a forty-foot square, flat bottomed ditch was to be installed as a part of the new construction to drain the overflow from the lake. Also this ditch is shown on appellants’ Exhibit D-6.) However, since the findings of the jury on issues 2 and 3 resulted in a greater damage figure than testified by Mr. Toland, it is presumed that the jury compensated appellants for the total loss of their spillway. Appellants’ point 2 is deemed as not presenting reversible error and is overruled.

Appellants contend to the effect that since a remainder tract of 3.181 acres and a remainder tract of 3.573 acres, became “landlocked” and without access, after the taking, that said tracts after the taking had a value of zero and appellants by their point 4 complain of the refusal of the trial court to instruct the jury to the effect that said tracts after the taking had no market value and they also contend by their point 3 to the effect that the trial court erred in failing to strike the testimony of appellee’s expert witness Toland giving his opinion of the value of the parts of the remainder. In this connection, appellants contend to the effect that Toland admitted on cross-examination that the values of the parts of the remainders were based solely upon the attractiveness of such parts to an adjoining owner or owners.

The trial court correctly refused to grant appellants’ requested instructions as all of the expert witnesses on both sides, as well as the landowner Hodges, testified that the remainder of the property had a market value, and they all gave their opinions on the same as hereinbefore set out. While the issue was sharply drawn as to the amount of damages, with all witnesses who testified on values having opinions thereon, there was no dispute in the evidence that there were some damages and the jury on sharply conflicting evidence before them found damages to the remainder after the taking.

Furthermore, it is well-settled law that opinion testimony does not establish any material fact as a matter of law. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345 (1948). It follows therefore that the trial court correctly refused to grant appellants’ requested instructions. Appellants’ 4th point is overruled.

We further hold that the trial court did not err in striking the opinion testimony given by Mr. Toland, one of appellee’s expert witnesses. Mr. Toland was shown to be fully qualified to testify to the market value of the property in question. When it was shown that he knew market value and was acquainted with the market value of the property, he was prima facie qualified to testify as an expert. His testimony became admissible as such and it then became a question of the weight to be given it by the jury. Mitchell v. Texas Electric Service Co., Tex.Civ.App., 299 S.W.2d 183, wr. ref., n. r. e. (1957).

Furthermore, the fact that the witness Toland in discussing the factors relevant to his forming of his opinion as to the value of the remainder considered the attractiveness of the land-locked portions of the remainder to adjoining owners, would not require the trial court to strike his opinion testimony as to his opinion of the value of the entire remainder nor even of the land-locked portions thereof. In this connection see State v. Rumery, Tex.Civ.App., 381 S.W.2d 87, wr. ref., n. r. e. (1964) and authorities therein cited. We quote from the opinion in State v. Rumery, supra, in part as follows:

‘Point of Error No. 2
‘The trial court erred in admitting into evidence testimony as to what the value of the subject property would be when hypothetically combined or used with other property under separate ownership.
‘Point of Error No. 3.
‘The trial court erred in admitting into evidence testimony as to the value of the property being acquired by condemnation as commercial property when subject property was not commercial property on the date of taking herein.
“Common prudence would cause a buyer in a private deal to be influenced in the price that he would pay for the subject strip by the prices other parties had paid for land in its vicinity having some elements of the strip’s commercial potential. If the buyer knew of no sale of an exactly similar tract he would be influenced by sales of tracts containing an area in some part comparable to the strip, such as a tract facing Eleventh Street, the rear half of which was comparable in a high degree to the strip, and which rear half had comparable commercial or economic use. Knowledge of the arm length’s market price of such other lots would influence the price he would willingly pay. Sales prices of such other tracts probably would not-be controlling with such buyer, but would be one of several factors he would consider in determining the price he would pay. From the evidence it appears the appraiser used the prices paid in transactions he relied upon as one of several factors influencing his opinion of value.
“In the search for market value the information an appraiser might gain from sales here shown is worthy of note, though the tracts are dissimilar in very important respects. There are safeguards against these sales being accorded weight by the jury other than as a factor considered by the appraiser in arriving at his value conclusion. The court’s instruction limiting the purpose for which the evidence is admitted and cross examination that emphasizes the negative aspects of comparability are the protective shields of the party resisting the impact of the appraisers’ testimony. See The State of Texas v. Oakley, 163 Tex. 463, 356 S.W.2d 909 at 914, 95 A.L.R.2d 1207. The evidence was properly admitted. [City of] Houston v. Pillot, Tex.Com.App., 105 S.W.2d 870, op. adpt.; Hays v. State of Texas, Tex.Civ.App., 342 S.W.2d 167, N.R.E.; State v. Morse, Tex.Civ.App., 342 S.W.2d 165, N.R.E.; State v. Sides, Tex.Civ.App., 348 S.W.2d 446, N.R.E
“The conclusion stated makes it unnecessary to discuss each point of error in detail, and they are each overruled. The judgment of the trial court is affirmed.” (Emphasis added.)
Appellant’s 3rd point is overruled.

Appellants by their 6th point contend that the trial court erred in refusing to admit the testimony of the witness L. E. Clark, the State Right-of-Way Engineer, as to the approved value of the State of Texas on the date of the taking as an admission against interest.

We hold that the trial court correctly refused to permit appellants’ witness L. E. Clarke to testify as to the approved value of the State of Texas as an admission against interest, inasmuch as the testimony showed that such approved value was set by agents and employees of the State of Texas based upon the appraisals of independent fee appraisers employed by the State of Texas, as such evidence sought from Clarke was clearly inadmissible.

The approved value which appellants sought to place in evidence was based on appraisals made by independent fee appraisers employed by the State to appraise the property in question. The office where Mr. Clarke was employed only recommends a value based on the facts contained in the appraisal reports it obtains. That value is approved by the Right-of-Way Division of the State Highway Department in Austin.

The appraisal reports upon which the approved value was based were immune from discovery under Rules 167 and 186a, T.R.C.P., Shirley v. Dalby, 384 S.W.2d 362, Tex.Civ.App., wr. ref., n. r. e. (1964). Not being able to secure the appraisal reports directly under Shirley v. Dalby, supra, it follows that the results of and recommendations on said reports could not be secured in the manner attempted by appellants. Appellants’ 6th point is overruled.

Appellants’ 5th, 7th and 8th points are deemed as not presenting reversible error under the record in this cause and are overruled.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

      . “You are instructed that the term ‘market value’, as that term is used herein, is the price which the property would bring when it is offered for sale by one who desires, but is not obliged to sell, and is bought by one who is under no necessity of buying it, taking into consideration all of the uses to which it is reasonably adaptable and for which it either is or in all reasonable probability will become available within the reasonable future.
      “Special Issue No. 1
      From a preponderance of the evidence, what do you find was the market value of the Defendants’ tracts of land condemned by the State of Texas for highway purposes at the time it was condemned, considered as served land?
      “Answer in Dollars and Cents.
      Answer 8.814 acres @ 1500.00 per acres = §13,221.00
      “Special Issue No. 2
      From a preponderance of the evidence, what do you find was the market value of the remainder of Defendants’ land, exclusive of the land condemned for highway purposes immediately before the condemnation?
      Answer in Dollars and Cents.
      Answer 35.720 acres @ 1500.00 = §53,-580
      “Special Issue No. 3
      Excluding increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by defendants’ in common with the community generally and not peculiar to them and connected with their ownership, use and enjoyment of the remainder of the land, and taking into consideration the use to which the condemned land is to be subjected, what do you find from a preponderance of the evidence was the market value of the remainder of defendants’ land immediately after the taking of the land condemned for highway purposes?
      Answer in Dollars and Cents.
      Answer §45,981.”


author: DENTON, Chief Justice.

text:
    L. G. HOOPER, Appellant, v. Barbara HOOPER, Appellee.
    No. 7607.
    Court of Civil Appeals of Texas. Amarillo.
    May 2, 1966.
    Rehearing Denied May 30, 1966.
    Cox & Hurt, Plainview, for appellant.
    Huff & Bowers, Lubbock, for appellee.
   DENTON, Chief Justice.

Barbara Hooper, plaintiff below, obtained a divorce from L. G. Hooper in a nonjury trial. The decree awarded custody of the minor son to the plaintiff; ordered a division of the community property; and ordered the defendant to pay $100.00 per month for the support of one minor child. The sole question presented by the defendant below on appeal is whether the trial court abused its discretion in the manner in which the property was divided.

Mrs. Hooper filed a suit on July 8, 1963, but the case was not heard on its merits until September IS, 1965. In the meantime Mr. Hooper was under an injunction not to dispose of any of the property; not to go about or molest his wife or the children; and was required to pay $250.00 per month for the temporary support of the wife and children. It is admitted these monthly payments were paid during this period. The parties had been married some 26 years and it is conceded all property involved was community property. Except for debts owing on a 1962 Chevrolet pickup truck and a 1956 Chrysler, all property was free and clear of indebtedness. Although there was some difference in the estimated values placed on some of the property by the parties, there is no substantial controversy over the property valuations. Prior to the trial the court appointed an independent appraiser. His report is not in evidence, but references to his appraisal were made by various witnesses and it seems to compare favorably with the Inventory and Appraisement filed by appellant upon the order of the trial court. The appraised value of the property is not in real issue.

The parties acquired the following community property along with its approximate value:

(1) A house and lot of the value oi $11,500.00;
(2) Household furniture and fixtures valued at $1200.00;
(3) 26 Appaloosa horses valued at $4,-000.00;
(4) One-half interest in a sporting goods and western wear store which includes its stock and fixtures, of the value of $16,-000.00;
(5) One 1958 Chevrolet automobile of the value of $700.00;
(6) A 1956 Chrysler automobile of the value of $500.00, upon which there was a debt owed of $500.00;
(7) A 1962 Chevrolet pickup truck of the value of $1200.00, upon which there was a debt owed of $750.00;
(8) 2 horse stalls and pens, valued at $300.00;
(9) A tandem horse trailer, valued at $200.00;
(10) A life insurance policy, on the life of appellant in the face amount of $1,-000.00, with a cash surrender value of approximately $650.00; and
(11) 2 bank accounts, the exact amount of each not shown, but they were relatively small.

The court awarded appellant the horses, the stalls and pens, the horse trailer, and the 1958 Chevrolet automobile; and awarded appellee the remainder of the property. The property awarded to Mrs. Hooper was valued at approximately $30,500.00 while the property awarded to the husband was valued at approximately $4,500.00. This does not include the $250.00 per month paid Mrs. Hooper by appellant for some 26 months for the support of herself and the children between the filing of the suit and the trial of the case. The parties’ middle son was 17 years of age at the time suit was filed, but was over 18 at the time of the trial.

We know of no class of cases in which the general rules of law are more settled. The cases are legion which declare the general rule that the trial court has wide discretion in disposing of community property of parties to a divorce action. Tex.Jur.2d, Divorce and Separation, Section 207, page 545 and cases cited. However, this wide discretion is not unlimited and should be exercised with due regard for the rights of the parties. Wilson v. Wilson (Tex.Civ.App.) 225 S.W.2d 236. One of the early leading cases, Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, held the district court was empowered to “order a division of the estate of the parties to the divorce suit in such a way as to the court seemed just and right, having due regard to the rights of each party and of the children”. It holds an abuse of discretion is shown where the disposition made of the property is manifestly unjust and unfair.

To support the trial court's disposition of the property in an admittedly unequal division, appellee relies heavily on the fact appellant is the party at fault. This is unquestionably true. His conduct as a husband and father is not condoned. It is uncontradicted that for some time prior to the filing of the divorce suit, appellant frequently remained away from their home until all hours of the night; he drank intoxicants to excess on occasions; and such conduct resulted in the breaking up of his own marriage as well as that of his brother-in-law. Although Duncan v. Duncan (Tex.Civ.App.) 374 S.W.2d 800 and other cases have held fault in breaking up the marriage and the benefits the innocent spouse would have received from a continuation of the marriage are factors a court may consider in making a division of property, they are not the only factors which a court may consider. The division of property need not be equal so long as it is not so disproportionate as to be inequitable. Bowling v. Bowling (Tex.Civ.App.) 373 S.W.2d 829. No case has been cited, and we have found none in which, in our opinion, the division of the property was as unequally divided as was done in this case. Admittedly, appellee was a fine mother to the parties’ three sons, the ten year old boy whose custody was awarded to her and the two other boys who were over the age of eighteen at the time of the trial. She had not worked out of the home for many years, and is untrained to perform skilled work, but we think appellant’s rights must be considered. The sporting goods store, which had been operated by appellant and his partner for several years constituted the major source of the family income. The court’s judgment would deprive him of any interest in the most valuable income producing property owned by the parties. He was also engaged in breeding and selling Appaloosa horses, but there is no probative evidence that it was a very profitable venture. Cases relied upon by appel-lee are so different on the facts they are of no real value except for their statements of accepted general principles of law. It is evidence from viewing this record that Mrs. Hooper honestly and sincerely believed she was entitled to all the property. Her attorney, in the course of the trial, stated to one of the witnesses: “We are asking for all of it or practically all of it” and an another occasion said “We are after every dime of the community estate”. In our opinion the trial court’s judgment does not manifest a due regard for the rights of the husband. Wilson v. Wilson, supra.

Under the facts and circumstances of this case, we think the property division was manifestly unjust and unfair. We are of the opinion, and so hold, the trial court abused its discretion in awarding a substantial portion of the property to appel-lee. We are not to be understood to hold that the property should be divided equally or any other definite proportion. That is not the prerogative of this court. We are simply charged with the authority to determine whether the division of the property made by the judgment should be upheld. We do not think it should be.

That portion of the judgment which granted appellee a divorce and awarded her custody of their minor son, and required appellant to contribute the sum of $100.00 per month child support is not disturbed.

The judgment of the trial court is affirmed in part and reversed and remanded in part.


author: HUGHES, Justice. PHILLIPS, Justice

text:
    Nathan MANN, M.D., Appellant, v. TEXAS STATE BOARD OF MEDICAL EXAMINERS et al., Appellees.
    No. 11395.
    Court of Civil Appeals of Texas. Austin.
    May 11, 1966.
    Rehearing Denied May 25, 1966.
    Foster, Lewis, Langley, Gardner & Hawn, Pat H. Gardner, Emerson Banack, Jr., San Antonio, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, 1st Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., J. C. Davis, John H. Banks, Asst. Attys. Gen., Austin, for appellees.
   HUGHES, Justice.

Appellant, Nathan Mann, M.D., brought suit against The Texas State Board of Medical Examiners and its members for a writ of mandamus compelling the Board to issue him a renewal license to practice medicine in the State of Texas.

The undisputed facts are:

Dr. Mann was a medical doctor duly licensed to practice medicine in the State of Texas prior to the following events:

On January 21, 1958, the Board entered an order revoking and cancelling Dr. Mann’s license to practice medicine in Texas.

On January 28, 1958, Dr. Mann duly and timely filed an appeal from such order of January 21st in the 105th District Court of Nueces County, docketed as Cause No. 63506-D.

On April 14, 1958, the Board filed an answer and cross action in such cause.

On February 18, 1963, the 105th District Court of Nueces County entered the following order in Cause No. 63506-D:

“NATHAN MANN, M. D. Plaintiff vs TEXAS STATE BOARD OF MEDICAL EXAMINERS Defendant
In the 105 th District Court of Nueces County, Texas
On this the 18 day of February A.D. 19 63 , came on to be heard the above numbered cause; including cross-action and the plaintiff failing to appear in person or by attorney to prosecute said cause, it is ORDERED, ADJUDGED AND DECREED by the court that said cause including cross-action be and the same is hereby dismissed for want of prosecution at plaintiffs cost, for which execution may issue.”

On January 1, 1964, Dr. Mann tendered and the Board accepted payment of his license renewal fee for the year 1964. Subsequent renewal fees were duly tendered by Dr. Mann but were refused by the Board.

It is our opinion that the writ of mandamus should issue compelling acceptance by the Board of renewal fees tendered by Dr. Mann.

In Scott v. Texas State Board of Medical Examiners, Tex., 384 S.W.2d 686, the Court construed Art. 4506, the same Article under which Dr. Mann filed his appeal, as constitutionally providing for a complete new trial in the District Court, saying:

“In the type of appeal thus required the court tries the issues anew. The burden of proof in sustaining the order is upon the administrative agency. Whether by the court or a jury, fact questions are resolved by a preponderance of the evidence.
The trial court therefore correctly ruled that the appeal from the order of revocation of the Board in the case at bar was to be tried de novo in the full sense, with the burden upon the Board to establish its case for revocation of Scott’s license by competent evidence before the court.”

In our opinion, this order of dismissal for want of prosecution had the effect of dismissing the Board’s effort to revoke the license of Dr. Mann. Surely, it was not incumbent on Dr. Mann to prosecute himself. The burden was on the Board, under the above authority, to prosecute Dr. Mann if it so desired. Apparently, it did not so desire because it permitted the order of dismissal to go unchallenged.

Dr. Mann could have demanded a trial, but we know of no rule of law which required him to do so or which punishes him for not doing so. If we should hold other than we do then the Board could win its ease by failing to prosecute in the same manner and to the same extent as it could win it by a successful prosecution before Court and jury, all the while bearing the burden of proof. We will not innovate such a rule of law.

That portion of Art. 4506 which provides that the order' revoking a license shall not be suspended except on application to the court to which an appeal is taken does not, in our opinion, alter the law as above stated. Its effect, and only effect, is to keep the order of cancellation in effect pending the appeal except as may be otherwise ordered by the court. This is a temporary measure and continues only until a judgment of the court is rendered, after which the terms of the judgment and other appellate procedures control.

It is not uncommon that a person is deprived of liberty or other privileges pending final determination of charges against him. The arrest and detention of persons pending trial in criminal cases is well known. The temporary suspension of officers against whom removal proceedings have been instituted is provided for in Art. 5982, V.T.C.S.

See Griner v. Thomas, Dist. Judge, 101 Tex. 36, 104 S.W. 1058, for a discussion of the public policy under which the statutes relating to removal proceedings was held constitutional. Similar public policy would seem to sustain the validity of that portion of Art. 4506 under discussion here for the reason that a doctor found unfit by the Board to practice medicine should not, within the discretion of the court, be permitted to practice pending a judicial trial of the charges against him.

It is to be noted that Art. 4506 provides that the proceeding on appeal shall be a trial de novo, as such term is commonly used and intended in an appeal from the justice court to the county court. Under such procedure when a dismissal occurs after perfection of appeal the consequences are as stated in Bender Bros. v. Lockett, 64 Tex. 566:

“The justice’s judgment is vacated; and if the plaintiff recovered it, he derives no benefit from that fact in the new trial. He must prove his case, as if he had never proved it before; and he may be dismissed for any cause that would have operated a dismissal had it been commenced in the district [footnote] court. The judgment below being vacated, it is the duty of the plaintiff to prosecute his suit to obtain a new judgment, and, if dismissed, he is out of court as effectually as if his suit had never been commenced in the court below. Hence, when this suit was dismissed the plaintiff had no judgment in the justice’s court against the defendant, and the district court could not, by any order, call into life again the one which had ceased to exist by reason of the appeal.”

We cannot attribute to the stay provisions of Art. 4506 the effect of adopting a rule of law just opposite to the rule above stated. The most that such stay provisions could accomplish in this respect is to make the statute ambiguous, in which event, since proceedings under this statute are penal in nature, we would strictly construe the statute in favor of the accused, as we have done. Texas State Medical Examiners v. McClellan, Tex.Civ.App., 307 S.W.2d 317, Houston, writ ref., n. r. e.

A writ of mandamus will issue in accordance with the prayer of Dr. Mann.

Reversed and rendered.

PHILLIPS, Justice

(dissenting).

I respectfully dissent.

Article 4506 states that “Any person whose license to practice medicine has been cancelled, revoked or suspended by the Board may, within twenty (20) days after the making and entering of such order, take an appeal to any of the district courts in the county of his residence, but the decision of the Board shall not be enjoined or stayed except on application to such district court after notice to the Board.” (Emphasis added.)

Thus, the burden of appealing and/or staying the order of the Board is upon the one appealing therefrom. After the dismissal of the appeal, the Board’s order remained in effect. There was no trial de novo.

Article 4506 further states that an order of cancellation by the Board can be set aside only in an appeal to any District Court in the county of residence of the licensee. Thus under the provisions of Article 4506 mandamus is not an available remedy for setting aside the Board’s order of cancellation.

Appellant’s suit in Travis County constituted a collateral attack on the final judgment of the District Court of Nueces County which was not appealed from or set aside. Consequently, the District Court of Travis County was not in error in denying the relief sought.

See Texas State Board of Examiners in Optometry v. Lane, Tex.Civ.App., 337 S.W.2d 801, error ref.

The record does not disclose why the Board revoked Mann’s license. In my opinion, this Court, in effect, is issuing a medical license. We have no such authority.

I would affirm the judgment of the trial court.

      . Art. 4506, Vernon’s Ann.Tex.Civ.St. under which the proceedings in this case were conducted provides:
      “Art. 4506. [5744] Revocation, cancellation or suspension of license
      The Texas State Board of Medical Examiners shall have the right to cancel, revoke, or supend the license of any practitioner of medicine upon proof of the violation of the law in any respect with regard thereto, or for any cause for which the Board shall be authorized to refuse to admit persons to its examination, as provided in Article 4505 of the Revised Civil Statutes of Texas, 1925, as amended.
      Proceedings under this Article shall be begun by filing charges with the Texas State Board of Medical Examiners in writing and under oath. Said charges may be made by any person or persons. The President of the Texas State Board of Medical Examiners shall set a time and place for hearing, and shall cause a copy of the charges, together with a notice of the time and place fixed for hearing, to be served on the respondent or his counsel at least ten (10) days prior thereto. "When personal service is impossible, or cannot be effected, the Board shall cause to he published once a week for two (2) successive weeks a notice of the hearing in a newspaper published in the county wherein the respondent was last known to practice, and shall mail a copy of the charges and of such notice to the respondent at his last known address. When publication of the notice is necessary, the date of hearing shall not be less than ten (10) days after the date of the last publication of the notice. At said hearing the respondent shall have the right to appear either personally or by counsel, or both, to produce witnesses or evidence in his behalf, to cross-examine witnesses, and to have subpoenas issued by the Board. The Board shall thereupon determine the charges upon their merits. All charges, complaints, notices, orders, records and publications authorized or required by the terms of this Act shall be privileged.
      Any person whose license to practice medicine has been cancelled, revoked or suspended by the Board may, within twenty (20) days after the making and entering of such order, take an appeal to any of the district courts in the county of his residence, but the decision of the Board shall not be enjoined or stayed except on application to such district court after notice to the Board. The proceeding on appeal shall be a trial de novo, as such term is commonly used and intended in an appeal from the justice court to the county court, and which appeal shall be taken in any District Court of the county in which the person whose certificate of registration or license is involved, resides. Upon application, the Board may reissue a license to practice medicine to a person whose license has been cancelled or suspended, but such application, in the case of cancellation or revocation, shall not be made prior to one (1) year after the cancellation or revocation, and shall be made in such manner and form as the Board may require. Acts 1907, p. 224, sec. 12; Acts 1939, 46th Leg. p. 352 § 7; Acts 1953, 53rd Leg. p. 1029, ch. 426 § 7.”

      . See Art. 1638, R.S. 1879.


author: NORTHCUTT, Justice.

text:
    Harold G. DIETER, Appellant, v. HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Appellee.
    No. 7610.
    Court of Civil Appeals of Texas. Amarillo.
    April 25, 1966.
    Rehearing Denied May 30, 1966.
    Huffaker & Green, Tahoka, for appellant.
    Evans, Pharr, Trout & Jones, Lubbock, for appellee.
   NORTHCUTT, Justice.

This is a compensation case. This case was submitted to the trial court upon an agreed statement of facts. The same statement of facts is presented here for our determination of the question involved. Harold G. Dieter will hereafter be referred to as appellant and Houston Fire & Casualty Insurance Company as appellee. The agreed statement is as follows:

“Comes now Harold G. Dieter, the plaintiff in the above-styled and numbered cause, and Houston Fire & Casualty Insurance Company, the defendant in the above-styled and numbered cause, by and through their attorneys of record, and in accordance with the provisions of Rule 263 T.R.C.P., do hereby agree and stipulate the pleadings of the parties and the facts upon which judgment shall be rendered herein, the controversy herein being submitted to the Court upon this agreed statement of facts:
1.
“On the 19th day of June, 1964, the plaintiff suffered and sustained an accidental injury in Lynn County, Texas, while acting within the scope and course of his employment for Joe Howton, D/B/A West Point Gin (hereinafter sometimes referred to as employer) said plaintiff working at said time in the capacity of a ginner. Prior to the date of said injury the defendant had issued to said employer a Policy of Workman’s Compensation Insurance under the laws of the State of Texas, and which policy was in full force and effect at all times incident hereto, and which policy covered said employer and the work being done by the plaintiff for said employer at all times incident hereto.
2.
“Generally the injury suffered by the plaintiff was to his back whereby he suffered and sustained a rupture of two (2) of his intervertebral discs among other injuries. The parties agreed that the injury suffered and sustained by the plaintiff is a compensable injury within the meaning and contemplation of the Workman’s Compensation Act of the State of Texas, and that the defendant is liable therefor.
3.
“No question is involved concerning the giving of notice, of the filing of claim for compensation with the Industrial Accident Board. Notice of appeal from the decision of the Industrial Accident Board was given within the time provided by law, and this suit was filed within the time provided by law and no issue is involved herein on such grounds.
4.
“The award of the Industrial Accident Board was entered on January 27, 1965. At no time while the plaintiff’s claim was pending before the Industrial Accident Board did the defendant admit liability, tender an operation of any nature for the plaintiff, demand the Industrial Accident Board to require the plaintiff to take an examination, or take any step whatsoever to require the plaintiff to submit to an operation, and the plaintiff in no respect refused an operation. The Industrial Accident Board of itself did not make any demands or requests of the plaintiff to submit to an examination or underio any type of surgical operation. After the Industrial Accident Board rendered its decision and this case was properly appealed to this Court, defendant did not at any time thereafter even up until the filing of this agreed statement of facts admit liability, tender such a surgical operation to the plaintiff, or request that an operation be undergone by him. This suit was filed in this court on March 2, 1965.
5.
“On May 19, 1965, on the advise of his personal doctor and at his own expense the plaintiff underwent surgery and a semihemilaminectory at L4-5 and L5-sl interspaces was performed on the right side, and degenerated disc material was removed by the surgeon. There were protrusions, that is a bulging of both discs, at each level shich apparently caused the trouble from which the plaintiff has complained. The injury received by the plaintiff was the cause of the rupture of the discs, and the protrusions thereof, together with the consequent irritation of the nerve roots, etc.
6.
“The surgeon who performed such operation is of the opinion that the plaintiff was totally disabled from the time of his said injury up until the time that the surgery was performed, and that had it not been for such surgery that the plaintiff’s condition would have been such that he would have been permanently and totally disabled within the meaning of the Workman’s Compensation laws of the State of Texas. Such surgeon is of the further opinion that the surgery performed upon the plaintiff’s back will be beneficial to him, and that he will probably be able to return to work by October but certainly by the First of January, 1966, but that he will be comewhat limited in his activities when he returns to work, particularly in his activity of doing heavy lifting, but that he would impose restrictions upon the plaintiff whereby he would do no unusual weight lifting or over 50 pounds, or perhaps up to 75 pounds at the most, and that he felt it to be prudent to restrict the plaintiff’s activities to such extent in order to avoid or to prevent harm to him because of his slightly weakened condition of his back.
7.
“It is the position of the plaintiff that the defendant would not under the law be permitted to introduce any testimony of any nature whatsoever that would show or tend to show the beneficial effects of the surgery had upon his back, because the defendant did not admit liability while the claim was pending before the Industrial Accident Board, nor did the defendant tender any type of operation to the plaintiff while such claim was so pending before the Board, nor did it make any demand of any nature whatsoever either to the plaintiff or to the Board to require such an examination, and none was ordered or requested by the Industrial Accident Board, and no surgery was performed until after the award of the Industrial Accident Board. It is the plaintiff’s position that the Supreme Court case of Hardware! [Hardware] Mutual Casualty Co., v. Courtney, 363 S.W.2d 427 (Tex. Sup.Ct.1963) is contrilling hereof, and that under the decision in said case, and that of Truck Insurance Exchange v. Seelbach [161 Tex. 250], 339 S.W.2d 521 (Tex.Sup.Ct.1950) and Texas Employers Insurance Association v. Shelton [161 Tex. 259], 339 S.W.2nd 519 (Tex.Sup.Ct. 1960) together with the decisions of the various Courts of Civil Appeals cited therein, that the defendant is not entitled to plead nor prove the possible benefits of a surgical operation. The defendant on the other hand contends that none of said causes are applicable for the reason that it is entitled to show the present physical condition of the plaintiff, and that inasmuch as the operation has already been performed that the rule announced in said cases is not applicable, and that it is entitled to show the possible beneficial effects of the surgical operation that has already been performed.
8.
“It is therefore agreed by and between the parties that the facts herein set out give rise to but one question of law, which said question of law is the sole question submitted to this Court for its determina-ion in this action, to-wit:
QUESTION: Under the agreed facts as set forth above wherein it is shown that the defendant wholly failed to comply with the rules set out in Hardware Mutual Casualty Company v. Courtney 363 S.W.2nd 427, supra, wherein certain mandatory steps are set out that must be followed before the compensation carrier would be entitled to make proof of the possible beneficial effects of a surgical operation, that would be performed in the future, is the defendant entitled to prove over the objection of the plaintiff that it has not followed such steps, the possible beneficial effects of the surgical operation that has already been performed as set forth above?
9.
“It is stipulated and agreed by and between the parties that in the event that the Court holds that such testimony is not admissible, the plaintiff is entitled to recover the sum of $10,000.00, and that if such testimony is admissible that the plaintiff is entitled to recover the sum of $6,000.00, each of said sums being in addition to all compensation payments heretofore made by the defendant to the plaintiff. In addition thereto, the defendant shall pay all expenses incident to said operation amounting to $350.00 as the surgeon’s fee, and $393.55 to the hospital for hospital charges. All costs of court up through the trial court shall be paid by the defendant. Appellate costs shall be paid by the party against whom the same may be taxed by the appellate court.
10.
“The final award and decision of the Industrial Accident Board in this case should be set aside and held for naught.
11.
“The court should apportion the plaintiff’s recovery herein between the plaintiff, Harodl G. Dieter and Huffaker & Green, his attorneys, and award the plaintiffs attorneys such reasonable fees as the Court finds and determines under the compensation laws of the State of Texas, and in this connection the parties represent and show unto the Court that said attorneys should be awarded the sum of 30% of such recovery.
“To all of which witness the hands of the parties hereto by their attorneys of record on this the 13th day of October, 1965.”

The award of the Industrial Accident Board was entered on January 27, 1965. This suit was filed in the district court on March 2, 1965. On May 19, 1965, on the advice of his personal doctor, and at his own expense, the appellant underwent surgery. The sole question here involved is whether the appellee should be permitted to offer evidence as to the possible beneficial effects of such surgery upon the appellant. It is appellee’s contention that since surgery had been performed before the trial it should be permitted to introduce evidence to establish the possible beneficial effects of such surgery. It is the contention of appellant that appellee should not be permitted to introduce such evidence because appellee did not admit liability while appellant’s claim was pending before the Industrial Accident Board; tender an operation nor make any demand to the Industrial Accident Board to require an examination of appellant. The trial court held such evidence was admissible. From that judgment appellant perfected this appeal.

This is not a question concerning the admissibility of evidence of the possible effect an operation might have where the appellant had not complied with Article 8306, Sec. 12e, Vernon’s Ann.Tex.Civ.St.; but is whether the appellee, remaining silent and never admitting liability, nor making any request of the Industrial Accident Board concerning the extent of appellant’s injuries, and the suit having been filed in the district court before surgery was had on appellant, should be permitted to show the possible beneficial effects of the surgery that was had. We have not been cited to a case and neither have we found one deciding this particular point. So far as we have been able to ascertain the admissibility of the beneficial effect of the operation performed after the suit had been filed in the district court is of first impression.

The Workmen’s Compensation Law is a special law wholly and completely foreign to the common law. The steps to be taken by an injured party are set out in the act. To secure the benefits provided under the act the injured party must take certain steps before the insurer is required to act. Then the insurer is required to take certain steps in having its rights protected. Under Section 12e of Article 8306 it is provided:

“In all cases where liability for compensation exists for an injury sustained by an employé in the course of his employment and a surgical operation for such injury will affect a cure of the em-ployé or will materially and beneficially improve his condition the association or the employé may demand that a surgical operation be had upon the employé as herein provided * *

That demand was to be presented to the Industrial Accident Board. We are of the opinion that since appellee never at any time admitted liability nor took any action before the Industrial Accident Board as provided for under Section 12e of Article 8306 that it waived all of its rights concerning an operation. This section of Article 8306 provides the method appellee should use if it desires to rely upon the effects of an operation.

It is stated in Texas Employers Insurance Ass’n v. Kubiak, Tex.Civ.App., 276 S.W.2d 909 (N.R.E.) as follows:

“He was never called upon either to accept or to reject an operation under any of the cited provisions of Article 8306. Having failed to admit liability and tender the operation to appellee prior to the date of the Board’s final ruling and decision in the case, appellant was neither entitled to plead nor to prove the curative effects of an operation. National Mutual Casualty Co. v. Lowery, supra; Federal Underwriters Exchange v. Thompson, 136 Tex. 194, 148 S.W.2d 1092; Lewis v. American Surety Co., 143 Tex. 286, 184 S.W.2d 137; Robertson v. National Surety Corp., 5 Cir., 208 F.2d 642; and Hartford Accident & Indemnity Co. v. Black, 5 Cir., 193 F.2d 971.”

All emphases given in the cases cited herein are ours.

It is stated in Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521 as follows:

“The insurer takes the position that the rule enunciated in the Quinn and Kubiak cases is erroneous, and if not, then our case is distinguishable from Quinn and Kubiak for two reasons, first, the need of an operation did not become apparent until long after the Industrial Accident Board had lost jurisdiction; second, the 1957 amendments to the Workmen’s Compensation Act have been adopted since those cases were decided and there is now available at any time unlimited medical, nursing and hospital service for which the insurer is liable.
"SeelbachJs position is squarely based on the premise that if the insurer does not admit liability and tender an operation prior to the final Board award, it is thereafter precluded from offering any testimony as to the curative effect of surgery under any and all circumstances no matter what may be the later progressive development of the injury and regardless of the nature of the operation.
“As so often said and so well recognized, the rights and obligations of the parties in a suit brought under the Workmen’s Compensation Act are entirely controlled by the statute except in respect to those matters of form and procedure that are not prescribed. The Act is in derogation of the common law. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084; Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556. Where the statute directs that action be taken in a certain way it may be performed in no other manner. The trial court is not clothed with those powers that are placed exclusively with the Board. Thus the trial court has no power to order or supervise an operation or to direct a medical examination for the purpose of determining the advisability of that course.
“The statute by no provision expressly refutes the admissibility of the excluded testimony, but we think it does so by necessary implication. The rule announced in Kubiak and Quinn is based on Texas Employers Insurance Ass’n v. Tally, 132 Tex. 547, 125 S.W.2d 544, and National Mutual Casualty Co. v. Lowery, 136 Tex. 188, 148 S.W.2d 1089.”

See Hardware Mutual Casualty Co. v. Courtney, Tex., 363 S.W.2d 427 as follows:

“The general problem presented here has been before this Court in three recent cases: Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521 (1960); Texas Employers’ Insurance Association v. Shelton, 161 Tex. 259, 339 S.W.2d 519 (1960); and Cook v. City of Austin, 161 Tex. 294, 340 S.W.2d 482 (1960). In Shelton, the insurer tendered an operation and requested the Board to order a medical examination if the employee refused to submit to an examination. Though the insurer by implication assumed the expense of the operation, it did not admit general liability. In Séel-bach, no surgery was recommended, tendered, or demanded while the employee’s case was before the Board. The need for an operation did not become apparent until after the Industrial Accident Board’s award became final. In Cook, the employee was said to have knowledge, while his case was before the Board, that surgery would help him. But no operation was tendered or demanded while his case was before the Board. In all three of these cases, it was held that the trial court correctly excluded evidence similar to that proffered here.”

The tender of an operation without the admission of liability renders testimony relating to the beneficial effects of an operation inadmissible on the trial of a case on appeal. Texas Employers’ Insurance Association v. Shelton, 161 Tex. 259, 339 S.W.2d 519.

Let us assume that Dieter was partially incapacitated, and neither party made a request of the Board for an operation, and after the Board had acted in the matter and the case was in the district court, and at the advice of his doctor Dieter had an operation and as a result of the operation Dieter was totally disabled, would the insurance carrier be liable for total disability ? It looks reasonable if appellee, under the facts of this case, could show the good effects of the operation, appellant could show the result of the operation under the facts we have assumed. We cannot waive the rules as set out in the law books of hardship and proceed according to our own ideas of fairness and justice.

We are of the opinion, and so hold, that the trial court was in error in holding that appellee was entitled to offer the testimony as to the possible beneficial effects of the surgery performed on Dieter after the suit had been filed in the trial court, since it had never admitted liability nor requested any relief from the Board as provided for under Sec. 12e, Article 8306.

Judgment of the trial court is reversed and rendered.