author: BELL, Chief Justice.

text:
    The AETNA CASUALTY AND SURETY COMPANY, Appellant, v. ELECTRONIC EXPLORATIONS, INC., Appellee.
    No. 14819.
    Court of Civil Appeals of Texas. Houston.
    May 19, 1966.
    Fulbright, Crooker, Freeman, Bates & Jaworski, William N. Arnold, Jr., Tom Normand, Houston, for appellant.
    Blades, Crain, Slator, Winters & Ross, James C. Winters, John F. Ensle, Houston, for appellee.
   BELL, Chief Justice.

Appellee recovered judgment against appellant in the amount of $22,050.00 with interest thereon at the rate of 6% per annum from August 30, 1963. Trial was to a jury but the court sustained appellee’s motion to withdraw the case from the jury and render judgment in its favor.

Suit was to recover the cost of repairing equipment that was damaged in an accident. Appellee was the owner of an insurance policy denominated “Scheduled Property Floater Policy” issued by appellant. The policy, so far as is material to this case, provides as follows: “This Policy Insures Against:

“2. (g) Collision, * * * or overturning of separate conveyances upon which the insured property is being transported.”

Appellant’s position here is that there was no collision nor was there an overturn.

Here we must determine whether under the facts there was either a collision of the vehicle on which the equipment was being conveyed or an overturn of the vehicle. We held in the case of Birmingham Fire Insurance Company of Pennsylvania v. Newsom Truck Lines, Inc., Tex.Civ.App., 390 S.W.2d 537, that the determining factor was whether the vehicle carrying the property was in a collision which resulted in damage to the property. This holding was approved by the Supreme Court by a memorandum opinion, refusing a writ of error because of no reversible error, in 394 S.W.2d 791. The effect of the holding is also to establish that it would be the overturning of the carrying vehicle that is determinative of liability in case of a claim under that portion of the policy.

The vehicle on which the damaged equipment was being carried on the occasion in question was what is frequently called a “swamp buggy.” It is also called a “pull boat” and a “mud bucket.” There are several nicknames for it. It was described by the president of the company as being a metal object about 18 feet long. It has straight sides and a flat bottom and at the front curved up at an angle. The curve upward was because it had to ride over logs and “things like that”. On the front was a winch with a cable. There was a four horse power motor that served to operate the winch. The cable would be attached to a tree ahead of the vehicle and then the motor would be employed to turn the winch which would wind up the cable which would cause the vehicle to be pulled forward. When the vehicle was thus propelled to the tree, the cable was unhooked and then hooked forward to another tree and the process of pulling the vehicle was repeated. The vehicle itself ' had no self-propelling mechanism. On the front of the vehicle were attachments that served as a brush guard to protect the equipment against limb damage. A hut is mounted forward on the vehicle. The hut is light-proof because it is used to develop the photographic records that are made in the seismograph operations. In the front room of the dark room are some chemicals employed to develop the photographic records. On the rear of the dark room is mounted the electronic equipment. On the rear of the carrying vehicle are a battery and battery charger which furnish power to operate the equipment. It is not designed for the purpose of traveling over water, but it will cross canals.

The witness did not describe the vehicle as having depth from bottom to top. From the diagram attached we gather it had some depth, probably of small footage, between the bottom and the top and only deck.

The material incident occurred January 13, 1961, in Louisiana. The foreman in charge of the operation described what happened. The crew was performing seismograph work in a swampy area south of the town of Mermentau. The crew approached a canal. The men pulled the vehicle up to the bank of the canal. A member of the crew, employing an outboard motor boat, took the cable to the other side of the canal and hooked it to a tree about 75 feet away from the canal. The winch was then employed to pull the vehicle across the canal by being operated in the manner above described. The levee on the other side was about 4 feet high. The vehicle was pulled some three or four feet up on the levee, that is, about this much of the bottom of the vehicle was on the levee, when the cable broke. The major portion of the vehicle was over the water and rested on the water, though obviously the major part of the weight was borne by the cable. When the cable broke the front of the vehicle shot up three feet or something like that. This allowed the back of the vehicle to go down and water started coming in the back. “When it went down, it went to one side— partially overturning and water started to come in.” Finally so much water came over the back that the vehicle slid off the levee and finally went to the bottom of the canal. The chemicals and “stuff” inside were “all strewed around in the recording shack.” The equipment was covered with water and none of the chemicals were left. (Emphasis added.)

On cross-examination the witness testified that the front came up, the bottom went down and took on water and the back of the vehicle started going down. The canal was 7 or 8 feet deep. No water got on the equipment until the “boat came off the 1 evy, partially overturning off the levy * * * it come off at an angle. It didn’t completely turn over.” The equipment was bolted on the boat and did not come out of it. (Emphasis added.)

The chemicals got on the equipment and damaged it.

We are of the view that the undisputed evidence shows there was an overturning of the vehicle within the meaning of the insurance policy. We deem the cases of Mercury Ins. Co. v. Varner, 231 S.W.2d 519 (CCA) error refused, and Employers Liability Assurance Corp. v. Groninger and King, 299 S.W.2d 175 (CCA), ref., n. r. e., controlling.

In the Varner case certain oil field equipment, including a steel drilling mast was being transported on a trailer over a rough road. The trailer was attached to the truck by what is referred to as a fifth wheel. A kingpin holds the trailer to the fifth wheel. The kingpin broke, the trailer became separated from the truck and tipped forward striking the ground. The mast also fell to the ground. The court held, among other things, that the facts showed an overturning of the vehicle of carriage. There need not be a complete overturn.

In the Groninger and King case, a tractor was being transported on a truck. It was held in place on the truck by chains. As the truck made a right-hand turn from a farm-to-market road onto the highway, the driver swerved the truck to his right and made an abrupt stop to avoid a collision with an oncoming car. This action and the sloping nature of the road caused the truck to tip to the left, its right wheels momentarily leaving the ground. This caused two chains to break and the tractor fell to the ground and was damaged. The court held, among other things, that the above facts showed an overturn of the carrying vehicle within the meaning of the policy.

This view is also supported by authorities in some other states. Jack v. Standard Marine Insurance Co., Ltd., 33 Wash.2d 265, 205 P.2d 351, 8 A.L.R.2d 1426; Moore v. Western Assurance Co., 186 S.C. 260, 195 S.E. 558; and Radella v. Bankers Mutual Fire Ins. Co. of Lancaster, 165 Pa.Super. 633, 70 A.2d 407.

Here there was not a complete overturning but the loss by the vehicle of its equilibrium and the overturning process commenced and it became beyond the power of those in charge to stop its progress. The front end of the boat reared up when the cable broke, the stem went slightly sideways and downward. This permitted water from the canal to get in the vehicle and ultimately to sink the boat and cause damage to the equipment.

The equipment did not fall off the vehicle and hit the ground or water. We do not view this to be of significance. It is the action of the carrying vehicle that is controlling. Birmingham Fire Insurance Company of Pennsylvania v. Newsom Truck Lines, supra.

As the action of the trial court is clearly supported on the theory of an overturning of the vehicle, we find it unnecessary to pass on the question as to whether there was also a collision within the meaning of the policy.

Affirmed.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    Emmett O. COLEMAN, Appellant, v. HUDSON GAS AND OIL CORPORATION, Appellee.
    No. 6741.
    Court of Civil Appeals of Texas. Beaumont.
    March 17, 1966.
    Rehearing Denied May 11, 1966.

      Waldman & Smallwood, Beaumont, for appellant.

      Barnes & Barnes, Keith, Mehaffy & Weber, Beaumont, for appellee.
   STEPHENSON, Justice.

This is an action for damages for personal injuries sustained by plaintiff. Trial was by jury and an instructed verdict was granted by the trial court for defendant at the close of plaintiff’s case. Judgment was rendered that plaintiff and intervenor take nothing. The parties will be referred to here as they were in the trial court.

Plaintiff was injured while in the course of his employment with Banister Construction Company, hereinafter called “Banister”, and was paid workmen’s compensation benefits. The insurance carrier for Banister Construction Company intervened in this cause. Defendant, Hudson Gas & Oil Corporation, had contracted with Banister Construction Company, an oilfield repair outfit, to do some maintenance and repair work on a high pressure gas system located on defendant’s leasehold. Plaintiff was injured when the unit he was repairing blew out.

This case is similar to the case of Halepeska v. Callihan Interests, Inc., (Tex.) 371 S.W.2d 368, in that it involves questions of “no duty”, “volenti” and “negligence and contributory negligence”.

The law is clear that an employee of an independent contractor is a “business invitee”, and that defendant in this case was required to keep the premises upon which this incident occurred in a reasonably safe condition for plaintiff. This included a duty on the part of defendant to inspect and discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853, Genell, Inc. v. Glynn, 163 Tex. 632, 358 S.W.2d 543.

Defendant’s duty in this case was to protect plaintiff from dangers of which defendant knew, or (because of its duty to inspect) of which defendant should have known in the exercise of ordinary care. If there were dangers which were not open and obvious, defendant was under a duty to take such precautions as a reasonably prudent person would take to protect plaintiff from such danger or to warn plaintiff of such danger. If the danger was open and obvious, and the plaintiff knew of such danger or was charged with knowledge of such danger, then defendant owed plaintiff “no duty” either to protect plaintiff from such danger or to warn plaintiff of such danger. This is so, the cases say, because there is “no duty” to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof. Plaintiff had the burden in this case of proving not only that he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm, but plaintiff also had to prove that defendant owed him a duty to take reasonable precautions to warn him or protect him from such danger; i. e., plaintiff had to negative “no duty”. Hale-peska v. Callihan Interests, Inc., supra.

Plaintiff made the following allegations in this case:

“4.
“Plaintiff would further show that the said Thornhill Carver adjustable choke blew out from the said low-temperature extracting unit in question, in the manner alleged in the foregoing paragraph, as the result of an accumulation of gas trapped in one of the lines of said unit. That this accumulated gas had been trapped as the result of the freezing up of the lines in question due to a sudden drop or decrease in gas pressure.
“Plaintiff would further show that the accumulated gas which caused the said adjustable choke to blow out, as aforesaid, had been trapped in the line of said extracting unit as the result of the failure of defendant, through its agents, servants or employees acting in the course and scope of their employment, to inspect the line in question, and the bleeder valve attached thereto for presence of frost thereon and/or therein; and/or an accumulation of gas, and/or to remove the frost from said line and/or from the said bleeder valve, by allowing more time to bleed the said line and/or the bleeder valve or by pouring hot water over the said line and/or the said valve, before turning said low-temperature extracting unit over to the employees of Bannister Construction Company, such as plaintiff. Plaintiff would show that defendant, through its agents, servants or employees, acting in the course and scope of their employment, failed to warn the employees of Bannister Construction Company, such as plaintiff, that they had not inspected the line in question and/or the bleeder valve attached thereto, for the presence of frost, and that the frost had not been removed from said line and/or the bleeder valve, in the manner hereinbefore described. That there was an accumulation of trapped gas in the line in question, which was known to defendant, its agents, servants, or employees, due to the fact that it had had exclusive control of the low temperature extracting unit in question prior to February 16, 1959; but which was not known to the employees of Bannister Construction Company, such as plaintiff, who had started working on said unit just a few hours before plaintiff’s accident. That the trapped gas in the said lines of the low-temperature extracting unit, the accumulation of which caused the adjustable choke to blow out, thus constituted a hidden danger as to the employees of Bannister Construction Company, such as plaintiff, of which defendant, who knew of said danger, had a duty to warn said employees of Bannister Construction Company, such as plaintiff.”
“6.
“Plaintiff would further show that the blowing out of the Thornhill Carver adjustable choke on the low temperature extracting unit in question, as set out above, and the resulting injuries to plaintiff, to be hereinafter described, were proximately caused by the negligence and carelessness of the defendant, Hudson Gas & Oil Corporation, through its agents, servants, or employees, acting in the course and scope of their employment, in the following particulars:
a. In failing to warn plaintiff that the line in question had frozen up, causing gas to be trapped and accumulated therein;
b. In failing to inspect said lines to determine whether it was free of frost and/or gas before turning said extracting unit over to the employees of Bannister Construction Company, and particularly plaintiff;
c. In failing to (properly) bleed the line in question by allowing more time to bleed the line and/or the bleeder valve attached thereto, and by pouring hot water on the line and/or bleeder valve attached thereto;
d. In failing to install and maintain a bleeder plug to relieve the gas pressure from the line in question;
e. In failing to install a pressure gauge on the line in question, which would register the amount of gas pressure in said lines;
f. In allowing plaintiff to work on the low-temperature extracting unit without providing for his safety by bleeding the said line in the aman-ner set out in 6c herein.
“That each and all of the foregoing acts and omissions, were negligence and carelessness, and each and all were a proximate cause of the injuries and damages of which plaintiff complains.”

This being an instructed verdict case, we must view the evidence in its most favorable light to the plaintiff. Plaintiff testified: He had been working for Banister about one month when he was injured; he was injured the first day he worked on this particular job; he had never worked around nor seen one of these units before; the explosion occurred when Morris, plaintiff’s foreman, struck the gas line behind the choke, with a sledge hammer, in order to loosen the choke; Morris was instructed to strike the line by Sharp, defendant’s gauger or switchman; Sharp supervised the entire job and what he wanted done; they were told by Sharp that the gas line had been bled and to go ahead with the job; Sharp did not tell them there was any gas pressure or give them any warning.

Zumwalt, defendant’s assistant superintendent, testified as follows:

“Q. All right, sir, now then, the most probable explanation, then, in your mind, would be that the gas would have to be trapped somewhere along the line for it to blow that choke out?
“A. My thought was that the choke was closed and the gas was in behind it, and it was never opened up and bled down, and it Mowed out.
“Q. It was never opened up and bled down?
“A. That’s right.
“Q. So that if it wasn’t bled down, that would explain the presence of the gas there and the reason it blew out?
“A. That’s right.”
“Q. All right, sir. Assuming that this thing blew out, though, with such force that it knocked this man back and caused fractures in his face, that would probably have been caused by some trapped gas pressure in the lines or in the adjustable choke, would it not?
“A. I would say it probably would be caused by trapped gas.”

J. F. Banister, plaintiff’s employer, testified by written deposition to the following:

“Was the bleeding down of the units to be maintained a part of the job contemplated by the maintenance work mentioned in the above and foregoing interrogatories ?
“Answer: I would say ‘no’ on that.”
“Was the bleeding of the units to be maintained on the Anderson Lease at Big Hill, Texas, on or about February 16th, 1959, an integral part of the job to be performed by Bannister Construction Company for the Hudson Gas & Oil Corporation at said time and place ?
“Answer: It was, but their man was supposed to bleed it off and we were supposed to repair it.”

The facts in this case do not bring it within the “no duty” doctrine because it is not established as a matter of law that plaintiff knew of the dangerous condition, or that such dangerous condition was so open and obvious that plaintiff was charged with knowledge and appreciation thereof as a matter of law. Under the factual situation in this case, the knowledge of danger was not that plaintiff was working upon a high pressure line, but that plaintiff was working upon a high pressure line which had not been bled. As shown above, the evidence shows it was defendant’s duty to bleed the line, and defendant’s employee stated this had been done and that plaintiff should proceed with the work. This is analogous to a situation where an employee of an independent contractor is to perform work upon an electrical high line and the owner-contractor agrees to cut off the electrical power before such work is to begin. The condition becomes dangerous only if the electrical power is not cut off before the employee is directed to proceed with the work.

The facts in the present case also do not bring this case under the “volenti” doctrine. The facts do not establish as a matter of law that plaintiff knew the pipe line had not been bled of the gas and appreciated the danger of working upon such a line, and voluntarily exposed himself to a known and appreciated danger. The law in this State is set out in Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172, as follows:

The decision to incur the risk must have been deliberate; i. e., made with knowledge and appreciation of the danger so that it may be said that the person acted as a result of an intelligent choice.

This case not coming with the “no duty” or “volenti” doctrines, was controlled by the determination of “negligence and contributory negligence”. Issues of fact were raised by the evidence as to whether defendant was guilty of acts of negligence which proximately caused the injuries to plaintiff, as well as issues of fact as to whether plaintiff was guilty of acts of contributory negligence which proximately caused his injuries.

Defendant cites the case of Western Auto Supply Co. v. Campbell, (Tex.) 373 S.W.2d 735, as authority for the proposition that the true grounds upon which the occupier’s liability for personal injuries arising from dangerous conditions of land rests in his superior knowledge of the dangers thereon. The evidence in the Campbell case, is that an employee of the defendant warned plaintiff of the dangerous condition and the jury found that the plaintiff had been so warned. There is no evidence of such a warning in the present case, and we find no application of the law of the Campbell case, supra, to the facts of this case.

Defendant cites the case of Moore v. Texas Company, Tex.Civ.App., 299 S.W.2d 401, as authority supporting the action of the trial court in instructing a verdict for defendant in this present case. The Moore case holds that an employee of an independent contractor may not recover if the danger resulting in the injury arises from the performance of the work rather than from the condition of the premises. If it had been established conclusively that bleeding the gas line was a part of the work plaintiff was engaged in at the time of the incident, then undoubtedly the Moore case, supra, would have application. However, viewing the evidence in its most favorable light to plaintiff, this fact was not established.

Defendant cites the case of Gulf Oil Corp. v. Bivins, 5 Cir., 276 F.2d 753, as authority for the proposition that the duty on the part of the owner or occupier of land to warn the employees of an independent contractor is discharged if those in charge of the work for the independent contractor are given warning or have knowledge of the danger. The danger in the present case was the accumulation of the gas in the line which caused the explosion, and the facts did not establish as a matter of law that those in charge of the work had been given warning or that they had knowledge of the danger.

Defendant contends this case must be affirmed because the record shows the statement of facts does not contain all of the evidence and that it must be presumed that the evidence was sufficient to sustain the judgment.

The record contains the defendant’s motion for instructed verdict filed at the close of plaintiff’s case, which was granted by the court. This motion put both parties on notice as to the issues in controversy which could be raised on appeal. The record shows the attorney for plaintiff wrote the court reporter a letter requesting certain testimony be included in the statement of facts and certain testimony be omitted. A copy of such written designation was filed with the district clerk, and a copy was sent to the attorney for defendant. No request was made by the attorney for defendant that any further testimony be included in the statement of facts.

The action of plaintiff’s attorney is authorized by the rules of civil procedure. Rule 377, sec. (b), Texas Rules of Civil Procedure, provides in part as follows:

“ * * * All matters not essential to the decision of the questions presented on appeal shall be omitted. * * * ”

Sec. (c) of such rule reads as follows:

“Promptly after notice of appeal is given and where a request is made of the official court reporter for the preparation of a transcript of all or any part of the evidence adduced on the trial of the case, or whenever, with or without such a request, a statement of facts is filed or offered for filing by appellant, the appellant shall deliver or mail to the appellee or his counsel and file with the clerk of the court a designation in writing of the portions of the evidence desired, and shall specify the portions desired in narrative form, if any, and the portions desired in question and answer form, if any, and the portions that are desired to be omitted. Within ten days thereafter any other party to the appeal may file a designation in writing of any additional portions of the evidence to be included, specifying the portions desired in narrative form, if any, and the portions desired in question and answer form, if any.”

The certificate by the court reporter shows the statement of facts includes only the evidence requested by plaintiff. The certificate approving the statement of facts signed by the attorneys also shows it includes only the portion of the evidence requested by attorney for plaintiff.

No objection was made by attorney for defendant to the filing of the statement of facts with the clerk of this court, and no motion to strike was filed by attorney for defendant under Rule 404, T.R.C.P.

This being an instructed verdict case, as already stated in this opinion, this court must view the evidence in its most favorable light to plaintiff in determining whether or not issues of fact were raised by such evidence. Even though that portion of the evidence omitted may have been unfavorable to plaintiff, the only burden plaintiff has on this appeal is to show the evidence raised issues of fact and not that such issues were proved as a matter of law, or by the weight of the evidence. The record shows that the plaintiff’s testimony is included in the record so as to eliminate the question of plaintiff having made admissions upon which an instructed verdict could have been granted, that could have been in the omitted part of the record. The point is overruled.

In the last point of error, defendant contends that this appeal should be dismissed because no final judgment was rendered by the trial court. The record shows that defendant impleaded Banister as a third party defendant, that Banister filed a motion for summary judgment and that such motion was granted. Judgment accordingly was entered and defendant gave notice of appeal; however, no further action was taken by any of the parties. The final judgment, entered later, disposed of the controversy between plaintiff and defendant and no mention was made as to the claim of defendant against Banister. Defendant argues that neither of these judgments is a final judgment because neither disposes of all of the parties nor all of the issues. Sisttie v. Holland, Tex.Civ.App., 374 S.W.2d 803, is cited as authority for this position. This case cited did not involve the impleading of a third party defendant. Both defendants were original defendants and apparently separate causes of action were alleged against each defendant. In the Sisttie case the disposal of the suit between plaintiff and one defendant would not have disposed of the action against the other defendant. In the present case the action by defendant against Banister was for indemnity. The instructed verdict and judgment for defendant would dispose of the petition for indemnity. We hold, as it was held in Buchanan v. Thrasher, Tex.Civ.App., 387 S.W.2d 950, that even though the second judgment, called “Final Judgment”, does not mention the previous summary judgment, it was merged to create a final judgment.

Reversed and Remanded.

On Rehearing

On rehearing, it was pointed out to this court that the action of the trial court in granting the motion for summary judgment in favor of Banister Construction Company in the third party action brought by Hudson Gas and Oil Corporation was not appealed from and became final. It was not the intention of this court to disturb the ruling of the trial court upon such motion for summary judgment and such portion of the case is not remanded for trial, and undoubtedly will be specifically mentioned in any final judgment hereafter rendered in this cause.


text:
    David HENDERSON, Appellant, v. H. VANDERWAL, Appellee.
    No. 6820.
    Court of Civil Appeals of Texas. Beaumont.
    May 12, 1966.
    Rehearing Denied June 8, 1966.
    Ramsey, Ramsey & Smith, San Augustine, and Addington & McGraw, Jasper, for appellant.
    Earl B. Stover, Silsbee, for appellee.
   STEPHENSON, Justice.

This is an action for damages sought by plaintiff by reason of slander to his person and his property. Trial was by jury and judgment was rendered for plaintiff based upon the findings by the jury. The parties will be designated here as they were in the trial court.

Plaintiff, H. Vanderwal, alleged: That in the year 1952 he entered into a rental agreement with defendant David Henderson to lease certain property in Jasper County, Texas, so that plaintiff could engage in the business of raising dairy cattle and the marketing of dairy products. That plaintiff carried on such business from 1952 until October 8, 1960, the date of a cattle auction out of which this controversy arose. That plaintiff’s petition contained this allegation :

“In the year September or early October, 1960, plaintiff secured the permission of Mr. Weldon Smith, manager of the Jasper Production Credit Association, which held a mortgage on plaintiff’s dairy cattle to sell his herd and pay off said mortgage from the proceeds of the planned sale. This was the only mortgage on said dairy cattle.”

Plaintiff further alleged: That the auction firm widely advertised the sale through various media and numerous persons gathered at the time and place of the sale. That a short time before the sale was to begin defendant arrived and loudly proclaimed: “I’ve got a mortgage on these cattle for $1,050.00 and not one can be sold before I get my cash.” That the sale was thrown into confusion, some few buyers remained and the sale finally resulted in a herd of cattle worth $16,000.00 being sold for $8,174.50. That plaintiff did not owe defendant $1,050.00, defendant did not have a mortgage on the cattle and had no authority to stop the sale. That defendant made the statement maliciously and plaintiff was entitled to $10,000.00 exemplary damages. Defendant answered that all statements made by him were either literally true or substantially so and that the truth of such matter was a complete defense to this cause of action.

The jury found: That there was no chattel mortgage in existence on the date of the sale. That the statements made by defendant concerning a chattel mortgage were false. That the statements were made by defendant with actual malice. That such statements were the proximate natural and reasonable cause of any diminution in value to plaintiff’s dairy herd. That the herd had diminished $2,800.00 in value. That defendant in speaking the words did not do so in a good faith effort to protect his rights, which he believed he had in the cattle. That the amount of exemplary damages was none. Judgment was rendered for plaintiff in the amount of $2,800.00.

Even though the jury found there was no chattel mortgage in existence on the day of the auction sale, there is no evidence in the record to support this finding. The record shows conclusively that plaintiff borrowed money from the Jasper Production Credit Association and executed a chattel mortgage upon his dairy herd to secure the payment of such loan. The record further shows that such chattel mortgage was still in existence on the day of the sale. As shown in this opinion above, plaintiff alleged that such mortgage existed and that he had secured permission from Jasper Production Credit Association to make the sale. The record also shows, without dispute, that defendant made a written guarantee of such loan to the extent of $4,000.00. This agreement made defendant legally responsible for the payment of plaintiff’s obligation to Jasper Production Credit Association if plaintiff defaulted in payment.

The only serious disagreement in the testimony was as to whether defendant made the statement that he had a mortgage on the dairy herd, or whether he made the statement that there was a mortgage upon the dairy herd. In either event, such statement was substantially true. Even though the mortgage was not held directly by defendant, a mortgage existed and defendant was legally responsible for the payment of the note it secured in the event of default. The record is also controverted as to the number of people who left before the auction began, but it is agreed that defendant and the auctioneer both made the public statement that the matter of the mortgage had been taken care of and that the auction could proceed. The record also shows the money received at the auction was turned over to the Jasper Production Credit Association for disbursal and that $1,012.15 was deducted as the balance due on loan. Apparently no complaint was made by plaintiff as to the amount of money withheld for such purpose.

We hold that as a matter of law defendant was permitted to make the statement made, regardless of whether plaintiff’s or defendant’s version is true. The legal right to make such a statement is a complete defense to the plaintiff’s cause of action.

Reversed and Rendered.


author: WALTER, Justice.

text:
    Elva Vera DILLINGHAM et al., Appellants, v. WEST TEXAS UTILITIES COMPANY et al., Appellees.
    No. 4052.
    Court of Civil Appeals of Texas. Eastland.
    May 13, 1966.
    Rehearing Denied June 3, 1966.
    Huffaker & Green, Calloway Huffaker, Tahoka, Loren Williams, Albany, for appellants. McMahon, Smart, Sprain, Wilson & Camp, Hugh Rives, Jr., Abilene, for in-tervenor, Texas Employers Ins. Ass’n.
    Wagstaff, Alvis, Pope, Doscher & Charl-ton, J. Henry Doscher, Jr., Abilene, for ap-pellees.
   WALTER, Justice.

Mrs. Elva Vera Dillingham and her minor daughters filed suit against West Texas Utilities Company for the wrongful death of Bennie Everett Dillingham, the husband of Mrs. Dillingham and father of the minor plaintiffs. Texas Employers’ Insurance Association intervened. The plaintiffs, the defendant and the intervenor made the following stipulation:

“IT IS HEREBY AGREED AND STIPULATED between all parties, acting by and through their respective attorneys, that Texas Employers’ Insurance Association, intervenor in the above styled and numbered cause, has paid and is obligated to pay in the future to the plaintiffs workmen’s compensation benefits in the sum of $11,864.31 and has paid emergency medical in the amount of $10.00 and funeral expenses in the amount of $500.00.

IT IS FURTHER STIPULATED AND AGREED that in the event plaintiffs do recover of the defendants any sum of money in the captioned cause, then in that event, Texas Employers’ Insurance Association, by reason of its intervention herein, shall be entitled to judgment in the amount of $12,374.31 out of the moneys first recovered by the plaintiffs.”

West Texas Utilities filed a general denial, pleaded contributory negligence, assumed risk and unavoidable accident. The first record of an offer of settlement by the utilities company is found in plaintiffs’ motion as follows:

“The plaintiff would show that there has arisen a conflict of interest and issues between the plaintiff and intervenor that should be settled and disposed of prior to the trial of this case on the merits, so that the rights of all parties hereto will and can be protected. In this connection the plaintiff would show that the defendant, West Texas Utilities Company, has made an offer in compromise to settle all issues and liabilities growing out of the death of the said Bennie Everett Dillingham for the sum of $17,500.00.”

In answer to plaintiffs’ motion, the inter-venor alleged:

“That if the cause of action asserted by the Plaintiffs and adopted by the Inter-venor against West Texas Utilities Company can be settled for the sum of Seventeen Thousand Five Hundred and No/100 Dollars ($17,500.00), the Intervenor is willing that the cause of action so asserted be so settled and that the sum of Seventeen Thousand, Five Hundred and No/100 Dollars ($17,500.00) be deposited into the registry of this Honorable Court pursuant to an agreed judgment whereby West Texas Utilities Company is fully and finally released by both Plaintiffs and Intervenor and that upon such judgment and payment of same, this Honorable Court then apportion the funds so deposited between the Intervenor and the plaintiffs according to the laws of the State of Texas.”

Plaintiffs filed a motion to sever the cause for determination of rights and the issues raised in their original petition. It is from the order overruling plaintiffs’ motion for a severance and their motion for determination of rights between plaintiffs and intervenor that this appeal has been perfected.

Appellants contend that the court erred (1) in refusing to sustain their petition for determination of rights and in refusing to order the parties to settle and determine the amount of the settlement that should be awarded to the appellants and the insurance company; (2) in refusing to order the insurance company to prosecute their cause of action, at its expense; (3) in not requiring the insurance company to indemnify them for their just proportionate part of the settlement offer in the event the utilities company should win the law suit; (4) in not authorizing the appellants to enter into a covenant not to sue the Utilities Company; (5) in not holding that the offer of settlement should be accepted by the appellants and the intervenor and in not allowing the appellants’ attorney one-third of the recovery to be charged against inter-venor’s portion of the settlement.

The cause of action against the Utilities Company for the wrongful death of Mr. Dillingham belonged to the appellants, burdened only with the right of the intervenor to recover the amount of compensation paid by it to appellants. Independent Eastern Torpedo Company v. Herrington (1936) 128 Tex. 17, 95 S.W.2d 377.

The Uniform Declaratory Judgments Act, Article 2524-1, Section 6, provides the court may refuse to render a declaratory judgment when it would not terminate the controversy. What is the controversy? Appellants in their motion to sever say:

“The controversy has arisen over the fact that Texas Employers’ Insurance Association is claiming that under Article 8307 Sec. 6a that it is entitled to the approximate sum of $12,000.00 out of the first monies received in any settlement agreement. The said Texas Employers’ Insurance Association has refused to enter into any such settlement negotiations unless and until it has been fully paid said sum of money.”

The Utilities Company attorney testified that, if all parties furnished him with proper releases, he was authorized to pay $17,500.00 for the purpose of compromising and settling the case. Before the appellants will accept such offers and settle, subject to the approval of the court in so far as the minor appellants are concerned, they have, in effect, asked the court for an advisory opinion on a hypothetical question. The parties have stipulated how the money should be apportioned, “in the event plaintiffs do recover of the defendant any sum of money — ” However, this case is not ripe for review under the Uniform Declaratory Judgments Act because appellants are seeking an advisory opinion on an abstract question. The Supreme Court of the United States in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 324, 325, 56 S.Ct. 466, 472, 473, 80 L.Ed. 688 at pages 698 and 699 said:

“The pronouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the persons complaining. The judicial power does not extend to the determination of abstract questions. * * *
The Act of June 14, 1934, providing for declaratory judgments, does not attempt to change the essential requisites for the exercise of judicial power. By its terms, it applies to ‘cases of actual controversy’, a phrase which must be taken to connote a controversy of a jus-ticiable nature, thus excluding an advisory decree upon a hypothetical state of facts.”

We have considered all of appellants’ points and find no merit in them.* They are overruled.

The judgment is affirmed.


author: BATEMAN, Justice.

text:
    Charles L. PEARCE, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
    No. 16606.
    Court of Civil Appeals of Texas. Dallas.
    April 22, 1966.
    Rehearing Denied May 20, 1966.

      Mullinax, Wells, Mauzy, Levy & Richards, Dallas, for appellant.
    Burford, Ryburn & Ford, John L. Estes, Dallas, for appellee.
    Strasburger, Price, .Kelton, Miller & Martin, Dallas, amicus curiae.
    Mock, Banner, McIntosh & Wells, Wichita Falls, amicus curiae.
   BATEMAN, Justice.

This workmen’s compensation case presents the narrow question of whether an agreement for compromise settlement of a claim under the Act, which specifically provides that it includes liability of the insurer for future medical aid, hospital services, nursing, chiropractic services, and medicines incurred after date of approval of the settlement by the Industrial Accident Board, precludes the employee from subsequently claiming and recovering medical expenses necessarily incurred by him in connection with a recurrence of the physical disability made the subject of the original claim.

The appellant claimed that on January 23, 1962, he sustained a compensable injury causing a detached retina of his right eye. On October 25, 1962 he and the insurer, Texas Employers Insurance Association, appellee herein, entered into a written compromise settlement agreement, which in part provided:

“It is expressly understood that this settlement does include liability of the insurance company for future medical aid, hospital services, nursing, chiropractic services, and medicines incurred after date this agreement is approved by the Board. In the event claimant requires medical aid, hospital services, nursing, chiropractic services, or medicines in the future as a result of this injury, such services as are authorized under the Workmen’s Compensation Law of Texas shall be furnished by Charles L. Pearce.”

Attached to the compromise settlement agreement as an exhibit was a statement by appellant reading, in part: “I understand this claim is being settled on a questionable basis because the retinal tear did not appear until after 6 months following my injury and I was suffering from eye trouble before my injury of January 23, 1962.”

The compromise settlement agreement was approved by the Industrial Accident Board on November 9, 1962, and the $2,570 consideration therefor was paid to and received by appellant. On or about November IS, 1963, more than a year later, appellant filed another claim with the Board, based upon the same accident of January 23, 1962, for additional hospital, medical and surgical bills necessary in additional repairs to the retina of his right eye. The Board notified counsel for appellant by letter dated December 9, 1963 that its approval of the compromise settlement agreement on November 9, 1962 closed the case, that it had no further jurisdiction and could take no further action unless the compromise settlement agreement were set aside, citing Commercial Casualty Ins. Co. v. Hilton, 126 Tex. 497, 87 S.W.2d 1081, 89 S.W.2d 1116.

This suit was filed in the district court to set aside that “ruling” and to recover such additional medical expenses. The district court sustained the insurer’s motion for summary judgment. In his three points of error on appeal the appellant contends that by virtue of the 1957 amendments to the Workmen’s Compensation Act he was entitled to medical and hospital services made necessary by the compensable injury at any time in the future and that his attempt to contract away that right before the services were rendered was a nullity.

Before discussing those contentions, however, we should dispose of the appellee’s single cross point, by which it challenges the jurisdiction of the trial court. The present claim for the additional medical expenses was filed on November 15, 1963. The Board’s letter of December 9, 1963 to appellant’s attorneys was as follows:

“On 11-9-62 the Board entered and is-" sued its final order approving a Compromise Settlement Agreement in this case in the amount of $2,570.00, thereby closing the case. The Industrial Accident Board has no further jurisdiction over a claim closed by Compromise Settlement Agreement under the decision in the case of Commercial Casualty Insurance Company vs. Hilton, 87 SWR (2) 1081. Therefore, unless such Compromise Settlement Agreement is set aside by a court of competent jurisdiction for fraud, accident or mistake, this Board can take no further action in your case.”

On December 10, 1963 the appellant’s attorneys wrote this letter to the Board:

“Please accept this letter as formal notice on behalf of claimant that he is dissatisfied with the award of the Board in the above entitled and numbered cause entered on November 9, 1962, Claimant hereby gives formal notice that he will not abide by said award.
“Within the time allowed by law, suit will be filed in a court of competent jurisdiction to set aside and hold for naught the award of the Board entered on November 9,1962.”

Appellee says that the trial court had no jurisdiction because: (1) the notice of appeal plainly states that it is from the order of the Board of November 9, 1962, which was the order approving the compromise settlement agreement, and, not being filed within twenty days thereafter as required by Art. 8307, Sec. 5, Vernon’s Ann.Civ.St., the notice came too late; and (2) the appellant had no right to appeal from the Board’s order of December 9, 1963 because it was not a “final ruling and decision” of the Board and was therefore not appealable.

As to the first point, we think it is obvious that appellant’s notice of appeal was intended to be an appeal from the Board’s order of December 9, 1963, refusing to entertain the new claim for addi- . tional medical expenses — so obvious, in fact, that the Board, in acknowledging it by letter dated December 12, 1963, referred to it as “your Notice of Intention to Appeal the Board’s letter of December 9, 1963,” without even mentioning the discrepancy. Neither the Board nor appellee was confused, misled or in anywise harmed by this obviously inadvertent error. Therefore, we think that part of the cross point is without merit.

Appellee’s other contention, that the action of the Board evidenced by its letter of December 9, 1963, is not an appealable order, presents a question upon which two of our sister Courts of Civil Appeals have recently differed. Hart v. Texas Employers Ins. Ass’n, Tex.Civ.App., 387 S.W.2d 706, wr. ref. n. r. e., involved a letter from the Board to claimant’s attorney stating that the Board had jurisdiction over a claim only 401 weeks from date of injury and that since that period had expired, “the Board will be unable to assist you and your client.” The Amarillo court held that the letter was not such a final ruling or decision as would authorize an appeal to the district court. However, in Holt v. Employers Reinsurance Corp., Tex.Civ.App., 393 S.W.2d 329, the Houston Court of Civil Appeals held that a letter from the Board refusing to act for the same reason was such a denial of the claim as to be a final award and, therefore, ap-pealable. The court, speaking through Mr. Justice Coleman, said, in part:

“This action should not be considered as merely postponing the hearing indefinitely or as a refusal to grant a hearing. It was a denial of the claim on the merits as a matter of law, and not merely on a question of Board procedure. It involved ascertaining facts, undisputed, it is true, and the application of the law to those facts. Mandamus would not lie. * * * The letter under consideration in this case was a final award authorizing an appeal to the courts.”

The Supreme Court granted writ of error on November 24, 1965 but apparently has not yet decided the case. In our opinion, the letter of the Board dated December 9, 1963 in the case at bar was such a “final ruling and decision” as to be appealable. Appellant was entitled, we think, to have this decision reviewed, and this appeal was the only available remedy. Todd v. Southern Casualty, Tex.Civ.App., 18 S.W.2d 695, affirmed Tex.Com.App., 29 S.W.2d 973. The equitable remedy of a writ of mandamus would not be available because of the presence of an adequate remedy at law, viz., the appeal to the district court under Art. 8307, Sec. 5.

For these reasons we overrule appellee’s cross point and hold that the appeal effectively invoked the jurisdiction of the trial court.

Addressing ourselves now to appellant’s contention that the summary judgment was unwarranted because appellant did have a right under the amended Act to the additional medical and hospital services and that his release of appellee’s liability therefor was a nullity, we first consider the effect of the 1957 amendments. Prior thereto that part of the Act providing for curative measures (Art. 8306, Sec. 7) limited the injured employee to ninety-one days of medical attention and one hundred eighty days of hospital services. The 1957 amendment, however, requires the insurer to furnish all such services “as may reasonably be required at the time of the injury and at any time thereafter to cure and relieve from the effects naturally resulting from the injury.” (Italics ours.)

The amendment made no change in Art. 8306, Sec. 14, which since 1917 has been as follows: “No agreement by any employé to waive his rights to compensation under this law shall be valid.” This was held, in Jenkins v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 211 S.W. 349, wr. ref., not to prohibit a binding compromise settlement after injury, having been intended only to prohibit agreements of employees, prior to injury, to waive their rights under the Act. The authority to compromise workmen’s compensation claims is found in Section 12 of Article 8307, V.A.C.S., which was not amended. It provides:

“Where the liability of the association or the extent of the injury of the employé is uncertain, indefinite or incapable of being satisfactorily established, the board may approve any compromise, adjustment, settlement or commutation thereof made between the parties.”

However, Article 8307, Section 5, which sets forth the procedure for appealing from decisions of the Board, was amended by adding a paragraph as follows:

“Notwithstanding any other provision of this law, as amended, no award of the Board, and no judgment of the court, having jurisdiction of a claim against the association for the cost or expense of items of medical aid, hospital services, nursing, chiropractic services, medicines or prosthetic appliances furnished to an employee under circumstances creating a liability therefor on the part of the association under the provisions of this law, shall include in such award or judgment any cost or expense of any such items not actually furnished to and received by the employee prior to the date of said award or judgment. The first such final award or judgment rendered on such claim shall be res judicata of the liability of the association for all such cost or expense which could have been claimed up to the date of said award or judgment and of the issue that the injury of said employee is subject to the provisions of this law with respect to such items, but shall not be res judicata of the obligation of the association to furnish or pay for any such items after the date of said award or judgment. After the first such final award or judgment, the Board shall have continuing jurisdiction in the same case to render successive awards to determine the liability of the association for the cost or expense of any such items actually furnished to and received by said employee not more than six (6) months prior to the date of each such successive award, until the association shall have fully discharged its obligation under this law to furnish all such medical aid, hospital services, nursing, chiropractic services, medicines or prosthetic appliances to which said employee may be entitled; provided, each such successive award of the Board shall be subject to a suit to set aside said award by a court of competent jurisdiction, in the same manner as provided in the case of other awards under this law.”

In Bituminous Cas. Co. v. Whitaker, Tex.Civ.App., 356 S.W.2d 835, no wr. hist., decided in 1962 and involving injuries received in 1959, the claimant sued for and recovered $750 “for future medical expenses.” It was held that Section 5 of Article 8307, as amended in 1957, prohibits the rendition of a judgment for future medical expenses, and the judgment was reformed to eliminate that item.

Appellant argues that, since the courts and the Industrial Accident Board are expressly prohibited from rendering judgments or awards for medical expenses not yet actually incurred, it would be impossible for an injured workman to contract away in advance his right to such services, and that the Board is consequently without power to approve with the “force of an award” the contracting away of such a claim. He argues that since a court judgment which seeks to cut off those claims for future medical services would not be res judicata of a later claim, it is inconceivable that such court could approve a compromise settlement of a claim which it may not consider.

Appellant also argues that the language of Section 12 of Article 8307, which authorizes compromise settlements, was subordinated to the limitations of Art. 8307, Sec. S, by the words “notwithstanding any other provision of this law, as amended, * * * ” and that since Section 12 was not amended to include authority to compromise claims for future medical services, the Legislature must have intended that such claims could not be compromised.

We are unable to follow appellant’s reasoning. As we read them, these two sections are not inconsistent, but on the contrary relate to entirely different aspects of the Workmen’s Compensation Act and are in harmony with each other. They endeavor to accomplish entirely separate and distinct ends. Section 12 deals with compromise settlements, which are agreed upon to avoid adjudication by final award, while Section S deals wholly with final rulings and decisions, whether they be the first award or successive awards. The obvious purposes of the paragraph added to Section S by the 1957 amendments were: (1) to implement the unlimited medical and hospital provisions of Section 7 of Article 8306; and (2) to provide certain safeguards for both the claimant and the insurer. These were: for the insurer — (a) no award or judgment is authorized for such additional expenses unless and until the services are actually furnished, and (b) liability for such expenses attaches only “after a final award or judgment” and then only for such items as are actually furnished to and received by the employee not more than six months prior to the date of each successive award; for the claimant — the giving to the Board of “continuing jurisdiction” after “the first such final award or judgment,” to render “successive awards” for future medical expenses.

Both before and after the 1957 amendments Section 5 provided for the method of appeal to the courts, but always from a “final award” or “successive awards” thereafter. But the approval by the Board of a compromise settlement agreement is neither an award of compensation nor a denial thereof. Commercial Cas. Ins. Co. v. Hilton, 126 Tex. 497, 87 S.W.2d 1081, 89 S.W.2d 1116; Industrial Accident Board v. Glenn, 144 Tex. 378, 190 S.W.2d 805; Cordova v. Associated Employers Lloyds, Tex.Civ.App., 250 S.W.2d 945, wr. ref.

Prior to the 1957 amendments the claimant could lawfully compromise his claim for past and future disability benefits (up to 401 weeks), as well as past and future medical benefits (up to 91 days) and past and future hospital benefits (up to 180 days), notwithstanding the prohibition against a claimant’s waiving his rights contained in Art. 8306, Sec. 14. We find nothing in the 1957 amendments to indicate a change of legislative intent or policy in this respect. The law favors the settlement of controversies by compromise as being in the interest of the public. 12 Tex.Jur.2d, Compromise and Settlement, § 2, p. 287; Ross v. Seip, Tex.Civ.App., 154 S.W.2d 958, 960, wr. ref. w. o. m.; 15 C.J.S. Compromise and Settlement § 23, p. 738.

Moreover, we are not here discussing an unapproved agreement between the claimant and the insurer, or between the claimant and his employer, as in Woolsey v. Panhandle Refining Co., 131 Tex. 449, 116 S.W.2d 675, but a compromise settlement agreement in the usual form and duly presented to and approved by the Industrial Accident Board of Texas, the very agency established by law to perform that function. There is no suggestion in this record that the order of the Board approving the compromise settlement was actuated by improper motives or that there was any fraud, accident or mistake involved; the only complaint being that the Board lacked legal authority to approve that part of the settlement involving future medical services. We agree with the view expressed by the Board and the trial court, that the compromise settlement agreement is binding on the parties unless and until it is lawfully set aside. Cordova v. Associated Employers Lloyds, Tex.Civ.App., 250 S.W.2d 945, wr. ref.; Lowry v. Anderson-Berney Building Co., 139 Tex. 29, 161 S.W.2d 459, 463; Davis v. Commercial Standard Ins. Co., Tex.Civ.App., 194 S.W.2d 599, wr. ref. n. r. e. No effort has been made to set it aside. Therefore, all of appellant’s points of error are overruled.

Because we think the summary judgment appealed from was correct, as explained above, it is

Affirmed.


author: DIXON, Chief Justice.

text:
    AUSTIN BUILDING COMPANY, Appellant, v. NATIONAL UNION FIRE INSURANCE COMPANY, Appellee.
    No. 16718.
    Court of Civil Appeals of Texas. Dallas.
    May 6, 1966.
    Rehearing Denied June 3, 1966.

      Johnson, Guthrie, White & Stanfield, Robert Lee Guthrie, Dallas, for appellant.
    Thompson, Coe, Cousins & Irons, Larry L. Gollaher, Dallas, for appellee.
   DIXON, Chief Justice.

Appellant Austin Building Company, a Texas corporation, hereinafter called Austin, brought suit against National Union Fire Insurance Company, a Pennsylvania corporation, hereinafter called National Union, on a fire insurance policy.

Austin alleged that on March 2, 1962 it had entered into a building contract with Western Light & Telephone Company, hereinafter called Western, to construct an addition to one of Western’s buildings at the latter’s Arthur Mullergren Station near Great Bend, Kansas. The consideration was $1,527,000. National Union issued its builders’ risk policy for total insurance coverage of $5,100,000, naming both Western and Austin as assureds.

On August 24, 1963 a fire occurred which destroyed some of Austin’s tools, supplies, machinery, etc. National Union denied liability on the ground that the policy had been cancelled prior to the fire. Austin sued for $9,798.38.

In its answer to Austin’s suit National Union pled that (1) prior to the fire the policy had been cancelled at the request of Western and return of unearned premium had been made to Western; (2) prior to the fire Western had occupied the building for a substantial period of time in violation of the terms of the builders’ risk policy, consequently the insurance had already terminated at the time of the fire; (3) Austin failed to file a sworn proof of loss, therefore there was no liability; (4) when cancellation was requested by Western, it was doing so not only for itself but also as agent for Austin; and (5) with respect to the insurance here at issue Western and Austin were engaged in a partnership or joint adventure, therefore the act of cancellation by Western was the act of Austin.

A jury returned a verdict finding that (1) the reasonable cash market value before the fire of the property destroyed was $8,-200; (2) its cash market value after the fire was $125; (3) the cost to repair or replace the property was .$9,798.38; (4) the building described in the policy was occupied before the fire and not solely for the purpose of testing machinery; (5) Western did not have actual authority or (6) apparent authority to cancel the policy in behalf of itself and Austin; and (7) a joint adventure did not exist between Austin and Western.

National Union filed a motion for judgment in its favor based on the undisputed facts, the verdict of the jury and the law applicable to the case. It is National Union’s position that the jury’s answer to Special Issue No. 4 requires judgment in National Union’s favor. Austin filed a motion pursuant to Rule 301, Vernon’s Texas Rules of Civil Procedure, asking the court to disregard the answer to Special Issue No. 4 and to render judgment for Austin on the remaining findings of the jury. The court rendered judgment that Austin recover nothing.

FACTS

The original bid of Austin on the construction job for Western included an item of $11,750 to cover the cost of a builders’ risk policy in which Austin was to be the named insured. After Austin had been informed that it had been awarded the contract a conference between Austin and Western officials was held, at which conference it was agreed that the item of $11,750 would be deleted from the final contract and Western would obtain insurance for both itself and Austin and would pay the premium for both coverages. This was done. The final contract was dated March 2, 1962.

National Union sent Austin a certificate of insurance in which Austin was erroneously referred to as Austin Builders, Inc. Austin communicated directly with National Union and by printed endorsement the names of the insureds were changed to read as follows: “Western Light & Telephone Company, Inc., Austin Building Company of Dallas, Texas, and/or Sub-contractors as their interest may appear.”

The “Builders’ Risk Completed Value Form”, attached to the policy contains these provisions:

“2; This policy also covers temporary structures, materials, equipment and supplies of all kinds incident to the construction of said building or structure and, when not otherwise covered by insurance, builders’ machinery, tools and equipment owned by the Insured or similar property of others for which the Insured is legally liable, all forming a part of or contained in said building or structure, temporary structures, or on vehicles, or in the open; only while on the premises described or within 100 feet thereof. (Emphasis ours.)
“3. Loss Payable Clause: Loss, if any, to be adjusted only with the Insured named herein and payable to the Insured and - as their respective interests may appear, subject, nevertheless, to all the provisions and stipulations of the policy.
“4. Occupancy Clause: It is a condition of this insurance that the premises shall not be occupied without obtaining the consent of this Company endorsed hereon; except that machinery may be set up and operated solely for the purpose of testing the same without prejudice to this policy.”

Western’s plant near Great Bend, Kansas covers ninety acres and includes a number of buildings. The improvements which Austin contracted to construct constituted an addition or extension to an existing building, its purpose being to house a turbine and generator for the production of electricity. The fire did not occur in the extension building.

Nearby was a temporary building, a barracks type wooden structure owned by Western, but furnished to Austin by Western as an office and warehouse for tools, machinery and supplies used and owned by Austin during the construction of the extension. It was in this building that the fire occurred on August 24, 1963.

At the time of the fire in the temporary wooden building the construction job on the extension building was 98 per cent completed. There was testimony that a quarry tile floor was yet to be laid and additional outside utilities had yet to be installed. However, a job inspection on October 7, 1963 indicated a long list of things yet to be done before completion.

The extension building had been progressively occupied by Western as construction work proceeded since a time prior to the fire. The power plant had gone into initial operation on May 15, 1963, commercial operation had begun June 15, 1963.

Austin filed its claim with National Union’s authorized agent, The Meade Company, Inc. at Topeka, Kansas. It furnished a statement of its claim including an inventory and estimated values of the property destroyed. It did not furnish The Meade Company a sworn proof of claim. The un-sworn proof of loss was forwarded by The Meade Company to R. G. Jessup, an adjuster for General Adjustment Bureau, who was handling the loss for the insurance company. Jessup confirmed the inventory. He later obtained bids and sold some of Austin’s damaged property for salvage for $125. Austin and National Union had entered into a non-waiver agreement, the purpose of which was to enable the parties to agree on the values of the property lost and damaged without waiving any rights under the policy.

By letter dated November 19, 1963 Jessup refused Austin’s claim, denying liability on the ground that on instructions from Western the policy had been cancelled on July 12, 1963. This denial of liability was later confirmed by letter from National Union.

Austin was not aware that the policy of insurance had been cancelled. It had not been notified of the cancellation by either Western or National Union. Following cancellation Western had received a refund of $1,821.82 as unearned premium. It is not claimed that Austin received any of this refund. Western had then taken out permanent insurance on the frame building being used by Austin. It was paid for the loss of the building under the permanent poliey.

r

Edward R. McKean, Western’s Industrial Relations Director, wrote the letter of July 12, 1963 to National Union requesting cancellation of the policy. McKean testified that in agreeing to the cancellation he was acting solely as agent for Western. Austin had not authorized Western to cancel the policy.

Firial acceptance of the job by Western took place June 30, 1964 on Austin’s agreement to make some corrections. Final payment was made to Austin by Western some time in July 1964.

Herman R. Joyce, Kansas State Agent for National Union, testified that he was familar with the negotiations leading up to the issuance of the policy. He dealt primarily with Mr. McKean of Western. He had no direct contact with Austin. However, in his discussions with McKean he was told that Austin had bid less on the job with the understanding that the difference would be used to pay premium on the insurance, but he was not positive it really happened. He assumed that the cancellation was for all interests involved. He did not claim that Austin was given any notice of the cancellation.

OPINION

In four points on appeal Austin contends that (1) under the facts of this case National Union had no legal right to assume that Western, the owner, had real or apparent authority to cancel the policy so far as Austin, the contractor, was concerned ; (2) in the alternative, the evidence presented a fact question as to whether Western had such real or apparent authority, and the jury having answered Special issues Nos. 5 and 6 that Western had no such authority, it was error for the court to disregard said findings; (3) the agreement that Austin would reduce the amount of its bid by the amount of the premium it would cost Austin to purchase insurance in return for the agreement of Western to obtain insurance coverage for Austin as a matter of law does not constitute a joint adventure ; and (4) in the alternative, the evidence raised a question of fact as to whether such agreement constituted a joint adventure, and the jury having found in answer to Special Issue No. 7 that no joint adventure existed, it was error for the court to disregard the said finding.

We sustain Austin’s four points on appeal. The general rule is that authority to procure insurance for another does not imply authority to cancel it. No doubt Western was the agent of Austin to procure the policy, but with its procurement the agency ceased. Knowledge and notice of Western under the undisputed facts of this case did not constitute knowledge and notice on the part of Austin. Western and National Union under the circumstances could not by mutual agreement between themselves without the consent of Austin deprive Austin of its benefits under the policy. We have found no cases exactly in point but these authorities lend support to our holding: Southwestern Fire & Casualty Co. v. Kendrick, 281 S.W.2d 344 (Tex.Civ.App., no writ hist.) ; Traders & General Ins. Co. v. Smith, 276 S.W.2d 347 (Tex.Civ.App., writ ref. n. r. e.); Insurance Co. of North America v. Crippen, 223 S.W.2d 297 (Tex.Civ.App., writ ref. n. r. e.); General Exchange Ins. Corp. v. Collins, 110 S.W.2d 127 (Tex.Civ.App., no writ hist.) ; Farrington v. Commercial Standard Ins. Co., 71 S.W.2d 336 (Tex.Civ.App., no writ hist.); Fireman’s Fund Ins. Co. v. Farrington, 55 S.W.2d 1076 (Tex.Civ.App., no writ hist.); East Texas Fire Ins. Co. v. Blum, 76 Tex. 653, 13 S.W. 572; Bobrow, et al. v. United States Casualty Co., 231 App.Div. 91, 246 N.Y.S. 363; O’Boyle v. Home Life Ins. Co., D.C., 20 F.Supp. 33; 53 A.L.R. 181; 45 C.J.S. Insurance § 455, p. 110.

If we be mistaken in the above holding, then we hold that the evidence raised a fact question in regard to the question of real or apparent authority of Western to cancel Austin’s interest in the policy, therefore the court erred in disregarding the jury’s answers to Special Issues Nos. 5 and 6.

National Union pled that Austin and Western were partners in taking out the policy. No such assertion is made on this appeal, so that question goes out of the case. However, National Union does contend that the parties were joint adventurers, “were in reality co-insureds and co-owners of the same property interest.”

We do not agree with National Union. We do agree with Austin’s position as stated in its third and fourth points on appeal.

Our Supreme Court has held that for a joint adventure to exist there must be a community of interest both as to profits and losses. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 59 A.L.R.2d 1011. Earlier our Supreme Court held that to constitute a joint adventure the sharing must be by virtue of right as principal in the joint business, not as mere compensation for services. Friedlander v. Hillcoat, Tex., 14 S.W. 786. For other statements in regard to the nature of joint adventures see McNeil v. Barrow, 237 S.W.2d 730 (Tex.Civ.App., no writ hist.); Fischer v. McMaster, 73 S.W.2d 554 (Tex.Civ.App., no writ hist.); McDaniel v. State Fair of Texas, 286 S.W. 513 (Tex.Civ.App., writ ref.); Emberson v. McKenna, 16 S.W. 419 (Tex.Civ.App.) ; 33 Tex.Jur.2d 287.

Applying the principles enunciated by the above authorities we think it is plain that Western and Austin were not joint adventurers. If Austin made a profit out of the construction job it belonged to Austin. If a loss was incurred it had to be borne by Austin. Western does not claim that it would have shared the profits and losses under the contract which was awarded to Austin as the successful bidder.

The same thing may be said if we confine our consideration to the insurance contract itself. The fire loss for which Austin asserts its claim was for the loss of personal property only: the tools, machinery, materials in the temporary building. Western had no community interest with Austin in said personal property or the loss thereof. And Austin had no interest in Western’s insurance claim for the loss of the temporary building. Austin paid for its own insurance coverage by reducing the amount of its bid on the main contract. There is no claim that by doing so it intended to incur liability for Western’s share of the insurance premium, or that Western had any interest in Austin’s tools, machinery, etc. Mr. Joyce, Kansas State Agent for National Union, admitted that he was familiar with the negotiations leading up to the issuance of the policy; and that he had been told that Austin had bid less on the job with the understanding that the difference would be used to pay premium on the insurance. It is of interest to note that Holmes Meade of The Meade Agency, Inc., National Union’s local agent through whom the insurance was placed, was also a member of the Board of Directors of Western.

There is still another sufficient reason why we must hold that the court erred in disregarding the jury’s answers to Special Issues Nos. 5, 6 and 7. Neither party filed a motion asking the court to disregard said answers. In the absence of such motion and notice thereof to the other party the court lacked authority to disregard said findings of the jury and to enter judgment contrary to such findings. Insurors Indemnity & Ins. Co. v. Associated Indemnity Corp., 139 Tex. 286, 287, 162 S.W.2d 666, 670; Continental Nat’l Bank, et al. v. Hall-Page Tire Co., Inc., Tex.Civ.App., 318 S.W.2d 127, 129; Missouri Pacific Railroad Co. v. Ramirez, Tex.Civ.App., 326 S.W.2d 50, 53; Wilson v. Burleson, Tex.Civ.App., 358 S.W.2d 751, 753.

In its first counterpoint National Union says that the trial court correctly rendered judgment for appellee since the evidence and verdict established that the policy terminated prior to the fire because of the occupancy by Western of the insured building.

We see no merit in the counterpoint. True, Western had been progressively occupying the building being constructed, that is, the addition or extension building. But the fire did not occur in that building. It occurred in the small frame temporary structure which Western furnished to Austin for the very purpose of being occupied by Austin as an office and warehouse during the progress of construction on the extension building. It is not contended that Western’s gradual occupancy of the extension building while under construction had anything whatever to do with the fire which occurred in the temporary building which was occupied and was intended to be occupied by Austin during construction of the extension building. Moreover, National Union does not contend that Western had any interest in the tools, machinery, etc. for which Austin is making claim. Paragraph 2 of the “Builders’ Risk Completed Value Form”, hereinbefore quoted, expressly covers “builders’ machinery, tools and equipment” and “temporary structures”. It is not claimed that Western ever occupied the temporary building or any part of it during the construction of the extension building. And surely no one will contend that Austin’s occupancy of the temporary structure terminated its builders’ risk insurance on its tools, etc.

Article 6.14 of the Insurance Code of Texas provides that no breach or violation of any provision of any fire insurance policy shall constitute a defense to a suit for loss thereon unless such breach or violation contributed to bring about the destruction of the property. In this case National Union in effect charges Austin with violation of the occupancy provision of the policy because Western progressively occupied the extension building before construction was completed. There is no evidence whatever that occupancy of the extension contributed to the fire in the temporary building or to the destruction of Austin’s personal property therein. We think Article 6.14 of the Insurance Code is applicable. The article, being a remedial statute, is to be liberally construed. Allemania Fire Ins. Co. v. Angier, Tex.Civ.App., 214 S.W. 450 ; 32 Tex.Jur.2d 384, Note 8. National Union’s first counterpoint is overruled.

The gist of National Union’s second counterpoint is that Austin cannot recover because it not only did not present a sworn proof of claim as provided by the policy but did not file any proof of claim at all within the sixty-day period following the fire as required by the law of the State of Kansas.

We have the greatest respect for our sister state and her laws, but the laws of Kansas are not applicable in this case. Rule 184a, T.R.C.P. permits us to take notice of the laws of other states upon motion of either party and notice to the other if the party making the motion shall furnish the judge sufficient information to enable him properly to comply with the request. There was no compliance in this case with Rule 184a, T.R.C.P. Therefore, we must assume that the law of Kansas is the same as the law of Texas. Kansas City Title Ins. Co. v. Butler, 265 S.W.2d 154 (Tex.Civ.App., writ ref. n. r. e.). The Texas law permits filing of a proof of claim within ninety days. Article 5546, Vernon’s Ann.Civil Statutes.

We overrule National Union’s second counterpoint for the five reasons hereinafter stated.

1. The evidence shows that Austin’s un-sworn proof of claim was forwarded to The Meade Company, National Union’s agent, on September 5, 1963. This was well within the time for filing the proof under either the sixty-day rule, which National Union says is the Kansas law, or under the ninety-day rule which is the law of Texas.

2. Austin’s failure to furnish a sworn proof is not fatal to Austin’s recovery. The proof of claim was referred by The Meade Company to Jessup, the adjuster. The latter not only confirmed the inventory but actually called Austin’s attention to two items which had been overlooked. Later he sold some of the tools as salvage and tendered Austin the $125 received from the salvage sale. There was a substantial compliance with the policy provision as to proof of loss and at no time was there a complaint that the proof of claim was unsworn. Anchor Casualty Co. v. Bowers, Tex.CivApp., 385 S.W.2d 568, 570. The Supreme Court reversed on other grounds the decision of the Court of Civil Appeals in the above case, but expressly approved the court’s opinion with reference to the sufficiency of the proof of claim. Anchor Casualty Co. v. Bowers, Tex., 393 S.W.2d 168, 170.

3. National Union, through Jessup, the adjuster, denied liability only on the ground that the policy had been can-celled before the fire. Failure to furnish sworn proof of claim was not named as a ground for denial of liability. Therefore such failure was waived. Francis v. International Travelers Ass’n, 260 S.W. 938, 946, affirmed by Supreme Court, 119 Tex. 1, 23 S.W.2d 282, 287.

4. Furthermore, we think National Union’s pleading as to failure to file proof of claim was not sufficiently clear and distinct pleading, but was global in nature. This fails to meet requirements as to pleading. Rule 93(m), T.R.C.P.; Anchor Casualty Co. v. Bowers, Tex.Civ.App., 385 S.W.2d 568, 570.

5. National Union denied liability by letter dated November 19, 1963. This was within the ninety-day period allowed by Texas law for the filing of the proof. By denying liability before the expiration of said period National Union waived the filing of proof of claim. Niagara Ins. Co. v. Lee, 73 Tex. 641, 11 S.W. 1024 (S.Ct.); Employers Mutual Casualty Co. of Des Moines, Iowa v. Nelson, Tex.Civ.App., 351 S.W.2d 278 (Rev. on other grounds, 361 S.W.2d 704); 32 Tex.Jur.2d 594.

In its third counterpoint National Union asserts that the trial court correctly disregarded the jury’s answers to Special Issues Nos. 5, 6 and 7 because the evidence established as a matter of law that the policy cancellation prior to the fire was effective as to Austin. Our discussion and holdings with reference to Austin’s four points on appeal are applicable to this counterpoint. We therefore overrule the third counterpoint.

In two cross-points National Union says that (1) the court erred in admitting in evidence Austin’s Exhibit No. 10 because it was hearsay and incompetent to establish value of the salvage; and (2) judgment cannot be rendered for Austin on this appeal because there is no competent evidence to support the jury’s answer to Special Issue No. 2.

Exhibit No. 10 is a bank order for $125 from B & B Wrecking Company in payment of property sold for salvage by Jessup, the adjuster. The jury in answering Special Issue No. 2 found that the value of the property after the fire was $125. Austin has never cashed the check. The check is the only evidence in the record offered in connection with the market value of the damaged property after the fire.

The check is hearsay evidence. No one representing B & B Wrecking Company testified by deposition or in person in court. National Union had no opportunity to cross-examine. There is no showing that B & B Wrecking Company paid market value for the property it bought. We sustain National Union’s two cross-points.

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

Reversed and remanded.

      . In connection with its judgment the court made these findings:
      “ * * * after full consideration, the Court is of the opinion and Solely finds as a basis for this judgment that the laws of the State of Texas are applicable to this case, that the jury’s finding to Special Issue No. 4 should be disregarded for the reason that occupancy of the building described in the policy of insurance was not material and did not contribute to bring about the destruction of the property; that the filing of a sworn proof of loss was waived, that the policy sued on was supported by consideration and that the proof did not establish that plaintiff violated any anti-rebate and anti-discrimination laws of Kansas or that such laws were applicable; the Court is further of the opinion, that so finds that Western Light & Telephone Company and Austin Building Company at all times involved herein were joint venturers and that Western Light & Telephone Company had the real and/or apparent authority to cancel the policy of insurance, involved herein, for itself and the Austin Building Company before loss occurred and did so do, and the jury’s findings to Special Issue No. 5, No. 6 and No. 7 should be disregarded, in that such issues were not supported by the evidence; * *


author: BARROW, Justice.

text:
    Morris KALLISON, Appellant, v. WESTERN FLAVOR-SEAL COMPANY, Appellee.
    No. 14481.
    Court of Civil Appeals of Texas. San Antonio.
    April 27, 1966.
    See also Tex.Civ.App., 389 S.W.2d 521.
    Glosserman, Alter, Smith & Rosénheim, San Antonio, for appellant.
    Frank P. Christian, San Antonio, for ap-pellee.
   BARROW, Justice.

The only question presented by this appeal is whether the County Court has jurisdiction of this suit filed by appellant, Morris Kallison, for sums alleged to be owing by appellee, Western Flavor-Seal Company, under a lease contract. The trial court determined from the pleadings that it did not have jurisdiction and dismissed the suit.

This is the second suit filed on the lease agreement allegedly entered into by appellant and appellee on August 1, 1963, for a period of two years, at a monthly rental of $250.00. See Western Flavor-Seal Company v. Kallison, 389 S.W.2d 521, no wr. hist.

On October 5, 1964, appellant filed this suit and alleged that appellee was in default for the months of August, September and October, 1964, and sought recovery of the sum of $750.00, together with ten per cent interest and attorney’s fees, as provided by the contract. Thereafter, appellant filed three amended petitions in which the claim asserted in the original petition was restated and an additional cause of action alleged. In his third amended original petition appellant restated the original cause of action and alleged as an additional cause of action that appellee was in default on the lease agreement for the months of November, 1964, through July, 1965, less some credits for reletting of the premises by appellant, and sought to recover the sum of $750.00, as originally prayed for, and the additional sum of $1,450.00, together with interest and attorney’s fees on each sum.

Appellee answered that appellant was suing on an oral two-year lease, and that same was unenforceable under the Statute of Frauds, Art. 3995, Subd. 4, Vernon’s Ann. Civ.St. Appellee’s plea to the jurisdiction was based upon three propositions: 1. The County Court did not have jurisdiction to determine the validity of the lease, since more than $1,000 was thereby put in issue; 2. Appellant’s allegations of the jurisdictional amount were not made in good faith; 3. Appellant’s third amended original petition shows on its face that more than $1,000 is in issue.

It is our opinion that the trial court properly dismissed this suit for want of jurisdiction. It is necessary to adjudicate the validity of the alleged two-year lease contract in order for appellant to recover. This put in issue a sum in excess of $1,000, and the County Court was without jurisdiction. Gossett v. Manley, Tex.Civ.App., 43 S.W.2d 622, wr. ref.; Western Flavor-Seal Company v. Kallison, supra.

Furthermore, appellant’s third amended original petition asserts a claim in excess of the jurisdiction of the County Court. Appellant urges that although his additional cause of action, seeking to recover the sum of $1,450, is beyond the jurisdiction of the County Court, his original cause of action, which seeks a sum less than $1,-000, should be retained. See Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762; Western Wood Products Co. v. Box, Tex.Civ.App., 248 S.W.2d 974, no wr. hist.; Buie-Crawford Co. v. Cleburne Nat. Bank, Tex.Civ.App., 111 S.W.2d 830, no wr. hist.

It is our opinion that the rule set forth in these authorities is not applicable here. Appellant’s third amended original petition asserts only one cause of action which had fully matured. All rents which might be owed under the alleged two-year contract were past due and it was alleged that ap-pellee was not in possession of the premises during any of the period sued upon. Appellant seeká by this petition to recover the total sum of $2,200 under the contract. He will not be permitted to carve out and assert only so much of his claim as is within the jurisdiction of the County Court. Pecos & N. T. R. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S.W. 294 (1909); Alfred v. Earl Hayes Rents Cars & Trucks, 390 S.W.2d 839, no wr. hist.; Salter v. Nelson, Tex.Civ.App., 341 S.W.2d 567, no wr. hist.

The judgment is affirmed.


text:
    Willie J. SALLIE, Appellant, v. Curtis COOK, Appellee.
    No. 16721.
    Court of Civil Appeals of Texas. Dallas.
    May 13, 1966.
    W. J. Durham, Dallas, for appellant.
    Valdez, Benavides, Menaker & Brown, Woodruff, Hill, Bader & Kendall, David M. Kendall, Jr., Dallas, for appellee.
   DIXON, Chief Justice.

This damage suit arose out of rear-end collisions involving three automobiles. The vehicles were moving in a northerly direction in the 9300 block of South Central Boulevard in the City of Dallas at about 8:45 o’clock on the morning of October 7, 1963. Car No. 1, a pickup truck driven by appellee Curtis Cook, was in the lead. Behind car No. 1 was car No. 2, also a pickup truck, which was being driven by plaintiff James E. Owen. Behind car No. 2 came car No. 3, which was being driven by appellant Willie J. Sallie. Car No. 3 collided with the rear of car No. 2, knocking the latter vehicle into the rear of car No. 1.

Owen, in car No. 2, was the original plaintiff in the suit. Appellee Cook in addition to his answer filed a cross-action against Owen and included appellant Sallie as a cross-deféndant. Apparently a settlement has been reached between appellant and Owen. The latter is not a party to this appeal.

A jury returned a verdict finding that appellee Cook did not fail to keep a proper lookout and did not bring his pickup truck to a sudden stop. The jury found that appellant Sallie failed to keep a proper lookout and failed to make timely application of his brakes, but was not driving his car at an excessive rate of speed and was not following too closely behind the vehicle in front of him. The jury answered special issues in favor of Owen. Based on the jury verdict damages of $15,465.46 were awarded to appellee Cook against appellant Sallie, but in favor of Owen that appellee take nothing against him.

In his first seventeen points on appeal appellant complains of the refusal of the trial court to submit seventeen requested special issues which would have called on the jury to answer (1) whether the slowing of his speed by appellee in car No. 1 without any warning caused appellant (in car No. 3) to strike car No. 2, the Owen car; (2) whether Owen stopped his car immediately in front of appellant without any warning causing appellant to strike the Owen car; (3) whether the body of appel-lee’s pickup truck projected 24 inches or more to the left of the center of the steering wheel; (4) whether appellee immediately prior to the time of the collision was attempting to turn his automobile to the left; (5) whether appellee’s car was equipped with a signal light sufficient to indicate his intention to change the course of his automobile; (6) whether appellee gave a hand or arm signal visible to appellant ; (7) whether appellant was faced with a sudden emergency; (8) whether appellee failed to keep a proper lookout for vehicles following to his rear; and (9) whether the collision was the result of an unavoidable accident. Appropriate issues were also requested in regard to negligence and proximate cause in connection with the above requested issues.

Appellant’s requested issues as prepared on typewritten forms were filed with the clerk and are copied into the record; but they are not shown to have been signed by the judge, do not show that the requested issues were refused by the judge, or even brought to the attention of the judge. This was not in compliance with Rule 272, Texas Rules of Civil Procedure. Such being the case appellee insists that appellant’s first seventeen points are not entitled to be considered on this appeal. Cross v. Everybodys, 357 S.W.2d 156, 159 (Tex.Civ.App., ref. n.r.e.); Cantrell v. Garrett, et al, 342 S.W.2d 466 (Tex.Civ.App., no writ hist.).

However, appellant contends that when other parts of the record are considered a substantial compliance with Rule 272, T.R.C.P. is shown. At the time appellant dictated his objections to the charge, which were later reduced to writing, he included the following:

“Comes now the Cross Defendant and here and now resubmits and requests the Court to submit to the jury the requested Special Issues heretofore presented to the Court and overruled.”
The court’s order was as follows:
“The above and foregoing objections and exceptions of the Cross Defendant, Willie J. Sallie, to the Court’s main charge were dictated in the presence of the Court and opposing counsel with the understanding that same could be later transcribed, and filed among the papers of the cause as of the time that they were dictated, and in this manner said objections and exceptions were presented to the Court, were considered by the Court, and were in each instance overruled by the Court, except insofar as the charge may have been corrected to meet any of said objections and exceptions, and to each adverse ruling of the Court the Cross Defendant then and there excepted.”

It will be observed that the above order contains no specific reference to appellant’s requested issues. We seriously doubt that the record shows a substantial compliance with Rule 272, T.R.C.P. even if we take into account appellant’s typewritten forms together with his “resubmission” of his requested issues and the court’s order as above quoted.

Nevertheless, we have studied each of appellant’s requested issues and have concluded that the failure to submit them or any one of them does not constitute reversible error. Appellant himself testified: “I did not see the pick-up [appellee’s car] in front of Mr. Owens until we all come to a concrete collision.” In view of such testimony, it is immaterial so far as appellant is concerned whether appellee slowed his speed without warning, whether appellee’s car was equipped with signal lights, whether appellee gave a hand or arm signal, or whether appellee was attempting to turn left.

It is undisputed that the Owen car, the No. 2 car, saw appellee in the No. 1 car come to a stop, or near stop, in time for Owen to come to a stop eight or ten feet back of appellee. It was a clear day, the highway was dry. Though appellant on occasion contradicted himself he repeatedly testified that the Owen car had come to a complete stop at the time appellant in the No. 3 car started applying his brakes.

Appellant himself testified: “I was sliding — my wheels were sliding when I went into the back of his car. * * * I hit him hard but it didn’t hurt me.” The circumstances bear out appellant’s testimony. His car struck the Owen car with such force that it broke the hip of Mrs. Owen, who was a passenger. Her right knee hit the door of the glove compartment with such force that it ruined the door, which had to be replaced. Her head struck the windshield and the resulting cut required six stitches.

Whether Owen in the No. 2 car stopped his car suddenly in front of appellant would not absolve appellant of his negligence toward appellee unless Owen’s negligence was the sole proximate cause of the collision with appellee, and no such issue was requested. Goolsbee v. Texas & N. O. R. Co., 150 Tex. 528, 243 S.W.2d 386, 388; Plemmons v. Gary, 321 S.W.2d 625, (Tex.Civ.App., no writ hist.).

Appellant’s first seventeen points on appeal are overruled.

In his eighteenth and nineteenth points appellant asserts that there was no evidence to show any causal connection between the alleged negligence of appellant and the claimed injuries of appellee; and the finding of the sum of $15,465.46 as damages is against the great weight and preponderance of the evidence.

The evidence amply supports the findings of the jury. The evidence is undisputed that the three vehicles had been proceeding for a considerable distance at a rate of about 45 miles per hour in the left hand lane of the two lanes for northbound traffic — the lane next to a concrete median strip about six inches high. As appellee approached a gap in the median strip he slowed down and came to a stop or a near stop. He intended to turn left to cross the highway to an access road leading to a tourist court where he was engaged to do some plumbing work. Traffic was heavy in both directions. Vehicles were proceeding in the two northbound lanes and the two southbound lanes. Appellee testified that he held out his hand to indicate his intention to turn. Whether he did or not, his slowing or stopping was observed by Owen in the No. 2 car in time for Owen to bring his car to a complete stop eight or ten feet back of appellee. When asked if the Owen car had come to a complete stop ahead of him, appellant in the No. 3 car testified, “Well, I am pretty sure it was, because when I looked up it had already done and stopped.” When asked, “ * * * where were you looking that you looked up from,” he testified, “I was looking out through the windshield.”

As to appellee’s injuries, he testified that he received injuries to his arms, back and shoulders; that at the time of the trial more than a year and a half after the accident, he was not able to raise his arm above his shoulder. He had been a plumber’s helper for years, but had not been able to work ,at all since the accident, and even had to give up the cultivation of a small vegetable garden which he had been able to work in every year prior to the accident. His wife had not been employed outside their home before the accident but had worked ever since the accident in order to make a living for them. There was some evidence that not all his physical disabilities were due to the accident, but there was sufficient evidence to support the jury’s award. Appellant’s eighteenth and nineteenth points are overruled.

In his twentieth to twenty-fifth points inclusive appellant complains of the submission of issues inquiring whether appellant failed to keep a proper lookout and whether he failed to make timely application of his brakes, and of the submission of issues ancillary to the above. He complains also of the submission of the damage issue on the ground that there was no evidence to support its submission. Appellant’s twenty-sixth point asserts error of the court in overruling his motion for an instructed verdict for the reason that there was no evidence to sustain the finding of the jury and the judgment of the court. As we have indicated, there was sufficient evidence, including appellant’s own testimony, to support the submission of the challenged issues, the jury’s answers to them and the court’s judgment thereon. Denham v. Smith, 258 S.W.2d 419, 422 (Tex.Civ.App., no writ, hist.).

The above numbered points on appeal are overruled.

The judgment of the trial court is

Affirmed.