author: NORTHCUTT, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Robert Wayne BROWN, Appellee.
    No. 7653.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 7, 1966.
    Rehearing Denied Dec. 12, 1966.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    Paul F. Ferguson, Alvin, Sam Lee, An-gleton, for appellee.
   NORTHCUTT, Justice.

This is a workman’s compensation case where Texas Employers’ Insurance Association, the insurance carrier, has appealed from a judgment rendered on a jury verdict awarding Robert Wayne Brown damages for an accidental injury sustained in the course of his employment with Ferrier Brothers, the insured employer. The parties will hereafter be referred to as they were in the trial court. Robert Wayne Brown will be referred to as plaintiff and Texas Employers’ Insurance Association as defendant.

The accident here in question occurred on July 24, 1958, at approximately 10:00 o’clock a.m. and claim for compensation was filed with the Industrial Accident Board on January 5, 1965. It was plaintiff’s contention that the reason he did not file his claim for compensation within the six months was because he thought his injuries were trivial and would not result in any disability until shortly before his claim was filed, and upon discovering that his injury was serious and permanent he filed his claim with the Board, and therefore he had good cause for delay up until the claim was filed.

It was defendant’s contention that any incapacity plaintiff may have sustained had been or would become partial rather than total and any incapacity plaintiff might have sustained whether total or partial was temporary rather than permanent in its duration. Defendant further contended regardless of the contention of plaintiff or defendant, there was, in any event, a period of time during which the plaintiff had no total incapacity attributable to the 1958 accident and that there was a period of time during which plaintiff had no incapacity at all attributable to the 1958 accident. Defendant through its attorney denied under oath that plaintiff filed claim for compensation within six months period prescribed by the statute or that good cause existed for the failure to file same.

The case was submitted to a jury upon special issues. The jury found that plaintiff sustained an accidental injury on July 24, 1958, while in the course of his employment with Ferrier Brothers; that the injury was a producing cause of the incapacity of the plaintiff; that the injury was the producing cause of total incapacity to the plaintiff; that such total incapacity began July 24, 1958; was temporary and extended for a period of 118 weeks; that plaintiff received partial incapacity which began November 7, 1960, and was permanent; and that the average weekly wage earning capacity of the plaintiff during the period of such partial incapacity was $100 per week. Then the jury further found that the plaintiff believed until about the time that his claim was filed that his injury was trivial and that such belief prevented him from filing his claim up and until the time it was actually filed and that such belief constituted good cause for not filing his claim for compensation sooner than it was actually filed. Judgment was rendered in favor of the plaintiff for the sum of $5,146.91, and from that judgment the defendant perfected this appeal.

Defendant’s first seven points of error deal with the plaintiff’s failure to file his claim within six months after injury as provided for under Vernon’s Ann.Civ.St. Article 8307, Section 4a. Defendant contends the court erred in overruling defendant’s motion for instructed verdict and judgment non obstante veredicto founded on the delayed filing of plaintiff’s claim for compensation in the absence of good cause therefor; no evidence to sustain the jury finding that until about the time his claim was filed plaintiff believed his injury was trivial; no evidence to sustain the jury finding that a belief that his injuries were trivial prevented plaintiff from filing his claim until the time it was actually filed and no evidence to sustain the jury’s findings that the plaintiff’s belief that his injuries were trivial constituted good cause for not filing his claim for compensation sooner than it was actually filed. The defendant then presented the same contentions on the ground that the findings of the jury on these matters were so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.

Plaintiff was injured on July 24, 1958, and was taken to a hospital in Dumas. He was in the hospital three or four days and then drove his car home and went back to work in about ten or twelve days. Plaintiff was nineteen years of age when injured. Since it was six years, five months and eleven days from the time of the accident until his claim for compensation was filed, we will not consider his age any further herein. We think the sole question here as to good cause being shown rests solely upon whether plaintiff was excused from filing his claim within six months until he was informed by Dr. James Albert Brown that he had a brain injury. To establish good cause for his delay in filing his claim for compensation plaintiff’s pleadings were as follows:

“Plaintiff alleges that if he did not file his claim with the Industrial Accident Board of the State of Texas within six (6) months from the date of the injury described herein, then that good cause existed up until the time the same was filed, for the following reasons:
“The plaintiff thought that his injury was trivial and would not result in any disability until shortly before the claim was filed, and upon discovering that his injury was serious and permanent he contacted his attorney and immediately filed his claim before the Board, and therefore he had good cause for the delay up until the time the claim was filed. In the alternative, plaintiff says that he was a minor at the time of his injury and was informed by his employer that he could file his claim for compensation at any future date if disability occurred, and plaintiff relied on his employer, its agents, servants, employees and representatives to process his claim, and this constituted good cause for failure to file the claim up until the time the same was filed.”

Plaintiff testified the first thing he knew after the accident was next morning when a nurse came in to give him a “birdie bath” and he got up and took a shower. He worked and went to school from about ten days after the accident until the time of this trial in the district court. He continued to have severe headaches; could not concentrate; wanted to get away from everyone; and be by himself and all of this was different from the way he was before the accident. He knew his conditions were getting worse and more numerous. The following questions were asked the plaintiff and his answers were as follows:

“Q. All right. Now, Robert, after you saw the Hunt Oil company doctors who was the next doctor that you saw?
“A. I saw Dr. Stephens in Alvin, Texas.
“Q. Did you go to Dr. Stephens of your own volition?
“A. Yes, sir.
“Q. Is he a general practitioner?
“A. Yes, sir.
“Q. What specific ailments or complaints caused you to seek Dr. Stephens’ help?
“A. I got to where I couldn’t concentrate on anything, I would sit down to read and maybe one time I could and the next time I couldn’t, I would pick up something rather quick sometimes and sometimes I could spend hours on it. Everytime I would sit down and start to read I would fall asleep, I wanted to sleep all the time. Food got to where it tasted about the same. I thought it might be my eating habits because working shift work and everything why I thought it could be my eating habits which were erratic. So, I had a matabolism check run in which they take a blood sample and find out whether you do suffer from vitamin deficiencies and they found it normal as well as a 20-18 vision with my eyes, so it was neither of that.
“Q. Now, Robert, had the persistence of these symptoms that you had had since the accident of 1958 caused you to become alarmed about yourself ?
“A. Yes, sir, at that time.”

He went to see Dr. James Albert Brown, a neurologist, on November 16, 1964. Dr. Brown caused an electroencephalogram run on the plaintiff and told him he had brain .damage. That was the first time plaintiff realized he was suffering from brain •damage and was the first time he attributed his trouble to the accident.

In considering whether the finding •that the plaintiff believed that his injuries of July 24, 1958, were trivial was so against the overwhelming weight and preponderance of the evidence as to be clearly wrong, we must consider and weigh all of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Ordinarily, the question whether ;good cause exists for not filing a claim for compensation within six months after the occurrence of the injury is a question of fact. Williamson v. Texas Indemnity Ins. Co., 127 Tex. 71, 90 S.W.2d 1088; Texas Employers’ Insurance Association v. Roberts, 135 Tex. 123, 139 S.W.2d 80 and other cases cited in those cases. Until Dr. Brown made an electroencephalogram and informed the plaintiff that he had a brain injury there was nothing to cause the plaintiff to attribute his trouble to the accident. We think the fact he continued to work under the circumstances and doctor’s findings he was all right was sufficient for the jury to consider whether the plaintiff considered his trouble trivial. We overrule defendant’s first seven points of error.

By defendant’s points of error 8, 9, and 10 it is contended the court erred in overruling its motion for judgment non obstante veredicto addressed to the jury finding of a compensable total incapacity lasting 118 weeks; that there is no evidence to support the jury answer of 118 weeks as the dura-tion of plaintiff’s total incapacity and that the jury’s answer of 118 weeks as the duration of plaintiff’s total incapacity is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.

The plaintiff went back to work within ten or twelve days after he was injured. There will be no further consideration as to compensation for the ten or twelve days he was away from his job as that time is not material here. He had consulted three or four different doctors before consulting Dr. James Albert Brown and they had not found anything wrong with him. He had taken six or seven physical examinations for the Marine Corps and for different jobs and passed all of them. Plaintiff acknowledged that he had been passed physically in all of his tests and that Dr. Brown passed him physically. He further testified he was able to do his work and because of doing a good job he had been advanced to a higher scale. All through his testimony he testified he was able to do the job and never claimed he could not do his work. His boss had testified plaintiff was a good hand and did his work. In considering all of the record we conclude that as a matter of fact that the plaintiff was not totally and permanently disabled. Plaintiff returned to work some ten or twelve days after his injury and had been able to do his work on different jobs for over six years and received good wages. There is nothing in this record to show he had lost any wages because of any disability to do his work. The Supreme Court of Texas in the case of Texas Employers’ Insurance Association v. Roberts, supra, held that compensation is not provided for pain and suffering but for loss of wages. The evidence is clear and undisputed plaintiff’s condition did not in a period of over six years between the injury and the trial prevent him from procuring and retaining regular well-paying employment in the same or better field of work he was engaged in prior to his injury.

Our Supreme Court has approved the definition of total incapacity as given in the case here. Texas Employers’ Insurance Association v. Mallard, 143 Tex. 77, 182 S.W.2d 1000.

We have weighed and considered all of the evidence — -that which supports the verdict and that which does not — and are of the opinion that the findings of the jury as to total incapacity was contrary to the instructions given by the trial court. The trial court here charged the jury that total incapacity did not mean absolute disability to perform any kind of labor, but was a person disqualified from performing the usual task of a workman in such a way as to enable him to both procure and retain employment, was totally disabled or incapacitated.

Under this record we are of the opinion, and so hold, that the finding of the jury that the plaintiff was totally incapacitated for a period of 118 weeks from July 24, 1958, is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong. Texas Employers’ Insurance Association v. Hawkins, Tex.Civ.App., 387 S.W.2d 469 (N.R.E.); Texas Employers’ Insurance Association v. Norton, Tex.Civ.App., 278 S.W.2d 287 (writ dism.); Texas Employers’ Insurance Association v. Vineyard, Tex.Civ.App., 316 S.W.2d 156.

We are unable to see any evidence in this record to support the jury finding that plaintiff was totally incapacitated for 118 weeks from July 24, 1958, but should we be wrong in that, we are of the opinion, and so hold, that the jury’s answer of 118 weeks as the duration of plaintiff’s incapacity is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong. We sustain defendant’s tenth assignment of error that the jury’s answer of 118 weeks as the duration of plaintiff’s incapacity is against the overwhelming weight and preponderance as to be clearly wrong.

Since we are of the opinion that the case should be reversed and remanded, we will not consider defendant’s other points of error as they may not arise during another trial.

Judgment of the trial court is reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James P. CORNETTE et al., Appellants, v. Darrel ALDRIDGE, Appellee.
    No. 7657.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 7, 1966.
    Rehearing Denied Dec. 12, 1966.

      See also, Tex.Civ.App., 404 S.W.2d 138.
    Waggoner Carr, Atty. Gen., Hawthorn Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., J. C. Davis and Pat Bailey, Asst. Attys. Gen., Austin, Grady Hazlewood, Amarillo, for appellants.
    Jack Hazlewood, Amarillo, for appellee.
   PER CURIAM.

This is an appeal by officials of West Texas State University in their hereinafter named and designated capacities from a writ of mandamus issued by the district court directing and commanding that they recognize Darrel Aldridge as a student at said school and “ * * * permit him to participate in all courses of instruction for which he was then registered and all functions and activities to which his registration as a student would have entitled him.” The application for mandamus was filed by Aldridge after he had been placed on disciplinary probation by Dr. T. Paige Carruth, Dean of Student Life, violated the conditions of such probation and after a hearing before a faculty committee composed of Dr. Wendell Cain, Dr. C. C. Callerman, Dr. J. L. Russell, Dr. R. C. Busteed and Dr. Carruth, as chairman, indefinitely suspended, effective February 3, 1966.

Darrell Aldridge was relator in the court below and respondents were Dr. James P. Cornette, President of the university named, Dr. Walter H. Juniper, Dean; Dr. T. Paige Carruth, Dean of Student Life; and the Board of Regents, State Senior Colleges of Texas. The parties, for convenience, will be referred to by their names or as relator and respondents as in the court below.

Article 2647, Vernon’s Ann.Tex.Civ.St, provides, inter alia, that the Board of Regents “ * * * shall have power to formulate and establish such rules for the general control and management of the State normal schools * * * as in their opinion may be necessary for the efficient administration of such schools

Article 2647a provides in Section 3 that: “The Board of Regents [of the Teachers’ Colleges of Texas] is hereby authorized and empowered to adopt such rules and regulations requiring any class or classes of students to reside in such dormitories, or other buildings, as they may deem advisable. Absolute management and control of dormitories constructed under the provisions of this Act are vested in said Board of Regents.”

It is thus seen that the legislature has vested in the Board of Regents of the subject institution broad and general power and authority to control and manage the school and establish such rules and regulations as shall be deemed necessary for the efficient administration of the institution. Relator in his petition for a writ of mandamus admits that the duly constituted officials of West Texas State University (which were respondents in the court below) are charged with the responsibility of supervising the discipline of the University students.

All emphases, brackets and parenthetical statements are ours unless otherwise noted.

We believe the principal and decisive questions presented are whether the trial court substituted its discretion for the statutory discretion vested in the officials of the school, if such officials acted unreasonably, arbitrarily and capriciously by indefinitely suspending relator, and if the trial court had the authority to order such officials to perform a discretionary function in a particular manner. These questions are included in respondents’ first three points and replied to in relator’s first point in which he contends the officials in suspending him acted unreasonably, arbitrarily and capriciously.

The record shows that during the course of making the ruling granting Aldridge’s petition for a writ of mandamus against the school officials the court made the following statements:

“The relator is no credit to himself or to the University, and I do not commend him for his conduct; but I do say that I think the University might well have shown mercy because this is a mark as bad as a felony on a man’s record' — -something that can not be erased; and if he ever hopes to be a professional man it will follow him the rest of his life.
“This kind of punishment is not to be administered in any case unless as a last resort.
“It appears to me that in this case the authorities finally lost patience with this young man, whose punishment was long overdue, and cumulated it until the punishment became unreasonable.
“I regret that the University cannot find enough charity in their hearts to forgive him.”

In the first place we cannot agree that an indefinite suspension from an institution 1 of higher learning leaves a mark on one’s j record as bad as a conviction of a felony. 'It is common knowledge that many boys have been suspended from school, later reinstated, and after learning to conform to proper adult behavior completed their education and made successful business and professional men. Dr. Cornette, President of the University, advised Aldridge’s parents by a letter that “ * * * it is the general practice among such institutions to consider the reinstatement of a suspended student if and when there is evidence of sufficient changes in the suspended individual’s attitude and conduct as to constitute a reasonable probability that the student’s behavior would be acceptable if he were reinstated.”

Considering the record of conduct hereinafter related we also cannot agree with the trial court’s statement that the officials showed a lack of charity in their hearts in dealing with Aldridge.

However, the important legal matter shown by such statements of the court in issuing the harsh remedy of mandamus against the officials is that the court recognized the conduct of Aldridge was a discredit both to himself and to the school, that punishment was long overdue, but he felt personally that the punishment was too harsh. The court, therefore, showed by such statements that it was exercising its discretion for that vested in the school officials.

The Supreme Court of Texas in Foley v. Benedict, 122 Tex. 193, 55 S.W.2d 805, 86 A.L.R. 477 dealt with the material questions involved in the points under discussion. After stating in effect that where the legislature establishes a university and delegates the power to make rules and regulations necessary to the government of the school to the Board of Regents such Board is invested with the power of determining what classes shall attend, provided such rules and regulations must he reasonable and not arbitrary, it then held, in quoting from another authority, as follows:

“ ‘The courts will not interfere with the exercise of discretion by school directors in matters confided by law to their judgment, unless there is a clear abuse of the discretion, or a violation of law. So the courts * * * will not consider whether the regulations are wise or expedient, but merely whether they are a reasonable exercise of the power and discretion of the board. Acting reasonably within the powers conferred, it is the province of the board of education to determine what things are detrimental to the successful management, good order, and discipline of the schools * * *. The presumption is always in favor of the reasonableness and propriety of a rule or regulation duly made. The reasonableness of regulations is a question of law for the courts.’ ”

The court continued to quote from the same textual authority to the effect that the right to attend public schools is conditioned on compliance by pupils with established reasonable rules, regulations and requirements of the school authorities, breaches of which may be punished by suspension or expulsion and that the school authorities have the right to define the offenses for which the punishment of exclusions may he imposed, to determine whether the offense has been committed and that such discretion vested in school authorities is very broad.

Quoting further with approval in the same opinion from the Supreme Court of Illinois the court in speaking of the discretionary power of a school board on a high school level said: “ * * * its acts will not be interfered with nor set aside by the courts, unless there is a clear abuse of the power and discretion conferred. Acting reasonably within the powers conferred, it is the province of the board of education to determine what things are detrimental to the successful management, good order, and discipline of the schools and the rules required to produce these conditions.”

In the publicized case a few years ago when women sought a writ of mandamus to compel the board of directors of Texas A & M College to matriculate them as students the Waco Court of Civil Appeals held the legislature had entrusted to the Board the government of the college, with power to make such by-laws, rules and regulations as it may deem necessary and proper for the governing of the college and that it was discretionary with the Board as to whether they accepted women as students. The court then said, “ * * * this discretionary power cannot be changed by judicial decree * *

Donna Independent School Dist. v. First State Bank, Tex.Civ.App., 227 S.W. 974 involved the selection by the Board of Trustees of a depository for school district funds. The San Antonio Court of Civil Appeals held trustees with discretionary powers will not be interfered with in the exercise of their discretionary powers unless there is a flagrant abuse of such powers.

Since institutions at the high school level also owe their existence to legislative enactments, we feel legally established rules concerning the discretionary power of those school authorities add some weight to the question under discussion.

In Splawn v. Woodard, Tex.Civ.App., 287 S.W. 677, where reservations at a dormitory was the basis of contention the Austin Court of Civil Appeals held that the discretion of the Board of Regents “ * * * is not a subject of court control, except, perhaps, in case of palpable abuse * * ⅜ »

Relator apparently recognizes the rules of law heretofore announced, since his contention is bottomed upon the assertion that the West Texas State University authorities were unreasonable, arbitrary and capricious in the indefinite suspension. We must, therefore, look to the rules promulgated and the conduct with respect thereto.

The men’s dormitory contract, which was executed by relator, in part is as follows:

“2. Each man is held accountable for dormitory regulations and general university regulations as published in the university catalog.
“3. Each man is accountable as an adult citizen who respects the laws of the community, state and nation both on and off the campus.
{< ijc ⅜ jjc
“b. Intoxicants of any kind are totally unacceptable. Any student caught possessing or drinking intoxicants (including beer) is subject to suspension.
« * Jfc *
“Parking Areas: Campus parking areas are a necessary part of the dormitory and considered so by the university.
<< ⅜ * ⅜
“I understand that the violation of the above regulations makes me subject to suspension from the university.”

The traffic and parking regulations of the school provide, inter alia, that:

“A. Every person operating a motor vehicle on the West Texas State University campus is held responsible for obeying all university rules and regulations, city and state laws regulating traffic and parking on campus.
“B. The registrant of the vehicle is held responsible for the safe operation and proper parking of his vehicle, regardless of who may be the driver or operator.
“C. The legal speed limit on campus:
Super 48 30 MPH
Other Streets 20 MPH
Parking Lots 10 MPH”

Miscellaneous requirements provide:

“Student Conduct. University men and women are expected to conform to high standards of adult behavior, both on and off the campus. Students are accepted in the University only as responsible law-abiding adults, and are subject to suspension from the University for any violation of the law or for irresponsible, immature behavior, either on or off the campus.”

The Catalog for West Texas State University provides on Page 34 that:

“Student Conduct. University men and women are expected to conform to high standards of adult behavior, both on and off the campus. Students residing in residence halls are expected to comply to the letter and to the spirit of the regulations of residence halls. Deviation from such standards may result in suspension from the University.”

Aldridge’s lack of conformity to high standards of adult behavior first came to the attention of the school authorities by his conduct observed by a university security officer and Liquor Control Board officer at 1:00 o’clock a. m., January 8, 1964. At that time he was apprehended while in the process of getting out of an automobile on the parking lot of one of the dormitories, along with two other students who were minors. He admitted he had been drinking and there was found in the car a pint bottle partially filled with bourbon whiskey, a bottle of beer and two 4/5 pints of Bacardi Rum. He denied they were his, but he was the only adult of the three who could have legally purchased the alcoholic beverages. He was given disciplinary punishment but allowed to select from several choices of punishment. He chose to perform fifteen hours of assigned manual labor duties in the security office.

Six days later having, by admission, consumed three beers during the afternoon he was observed speeding in his roommate’s 1966 GTO on 26th Street in a 20 mph zone on the campus near the cafeteria during the supper hour when students were crossing the street from their dormitories to go for their evening meals. He admitted the speedometer showed close to 60 mph and that the car was “fishtailing.” Dr. Carruth testified he admitted to a speed of 65 mph to him. One witness who observed the incident testified at one time it appeared he was angling toward two parked cars and that he came very close to them. This witness, Jerry McManemy, also testified there were a good many students in the area at the time. That night he and his roommate went to the home of Chief Security Officer Hudson and the roommate, Mike Nance, tried to prevail on the officer to let him take the blame for the speeding incident because Aldridge was under disciplinary action at the time for the incident at 1:00 o’clock a. m., January 8. Officer Hudson testified Aldridge was under the influence of intoxicants to a degree at the time he was in his home approximately one hour and a half after the speeding incident.

For the offense just related Aldridge was advised on January 24,1966, by Dr. Carruth that he was placed on probation with the conditions that he was not to have his car on the campus and was not to drive his car or any other car on the campus or in the City of Canyon during the period of probation, thus receiving a second opportunity to conform to the rules of the institution.

On the very next night he was identified as the driver of a speeding automobile by a campus security officer and later that evening apprehended by a City of Canyon patrolman for driving at an excessive speed in his own car in the City of Canyon. On February 3 he was brought before the disciplinary committee heretofore named and given an opportunity to state his case. After he had done so and Dr. Carruth had presented the facts concerning the record, those two retired from the room. The committee then in closed session discussed the case and voted unanimously for indefinite suspension.

As part of his contention that the authorities acted unreasonable, arbitrary and capricious relator’s chief complaint appears to concern the scope of the restriction placed upon his use of automobiles and the time at which his probationary period started, yet in his own sworn pleadings he alleged in effect that he was advised by Dr. Carruth he was restricted from operating his automobile on the campus, or on the streets of Canyon or the highways of Randall County.

As to whether the probation was in effect on January 25, the record shows Aldridge was living in the dormitory on the campus, even though the school was in the process of registering students for a new semester that had not yet begun. He had knowledge that he was on probation when he was apprehended on the night of January 25, as evidenced by the fact that he told the police officer “ * * * I wasn’t supposed to be driving a car or anything and asked him if he would not report me to the school officials * * * ” He also admitted to driving his car “ * * * in front of the gymnasium and through the main drag * * * ” in Canyon, so it appears clear to us that he was consciously violating a condition of his probation.

Under the authorities heretofore cited and those of courts of last resort from other jurisdictions of like import announcing the broad discretion vested in school officials concerning the operation of public schools, we hold the officials did not act unreasonable, arbitrary and capricious, but to the contrary showed considerable restraint in dealing with this student who was obviously unmindful of the rules of the university seeking to give him an education and prepare him for useful citizenship.

Though the trial court in the process of announcing its judgment was very critical of the rules of West Texas State University we find no difficulty in understanding the meaning of a requirement that students’ conduct should conform to high standards of adult behavior both on and off the campus. We do not question the fact that some ' other adults might have done the very acts and flaunted the very probationary conditions the record shows Aldridge was guilty' of, but we do say that they did not conform to high standards of adult behavior.

Additionally, there is no escaping the fact that the speeding incident which resulted in placing Aldridge on probation was a violation of the dormitory contract holding each man accountable as an adult citizen who respects the laws of the community and state; a violation of the traffic regulations of the school; and a violation of “Miscellaneous Requirements” under General Regulations in the Catalog, providing: “Students are accepted in the University only as responsible law-abiding adults, and are subject to suspension from the University for any violation of the law or for immature behavior either on or off the campus.”

It is difficult to imagine a period in the life of our nation when the courts need to give greater support to public school authorities concerning their discretion in dealing with students than now, so long as such discretion is not exercised in an unreasonable, arbitrary and capricious manner. We do not believe such adjectives applied to the manner in which the officers of West Texas State University exercised their discretion in the instant case. We agree with the Supreme Court of Tennessee in State ex rel. Sherman v. Hyman, supra, to the effect that a fair hearing before school officials does not contemplate a trial as in a chancery court or court of law. The student should be given every fair opportunity of showing his innocence, which Aldridge had. When they have done this and the disciplinary committee has reached a conclusion, they have done all the law requires them to do.

Though Aldridge had already been placed on probation, violated it and been suspended, the trial court through its questions propounded to the school authorities apparently sought to have them accept him again on still another probationary status. When they refused, “ * * * considering all the circumstances that have occurred,” he issued the harsh remedy of mandamus against them.

While the law is settled that mandamus may issue to compel the exercise of discretion where there has been a refusal to act at all, it will not issue for the purpose of directing the exercise of discretion in a certain manner. Mandamus is primarily a means of compelling the performance of purely ministerial duties. The officers of the respondent school in the exercise of discipline of students clearly had discretionary authority as distinguished from only ministerial duties.

It must be kept in mind here that the conduct of Aldridge that prompted the probation was highly excessive speed in a low speed zone, in a strategic area after he had been drinking alcoholic beverages, which could very well have resulted in the death of one or more persons. Though he testified he drank only three beers during the afternoon before the speeding incident it is significant that an hour and a half later he was still under the influence of alcohol to some degree when he went to the home of the security officer. His actual suspension was for a violation of the condition of the probation assessed for the serious offense just described.

From all the authorities cited and the facts of the case, we hold the officers of West Texas State University, in the exercise of the discretion vested in them, had the authority to invoke the indefinite suspension and that the trial court exceeded its authority in issuing the writ of mandamus.

Accordingly, the judgment of the trial court is reversed and rendered.

      . The school is one of the several institutions of higher learning in the state formerly known as State Normal Schools and/or Teachers’ Colleges of Texas. This one was later known as West Texas State College and by Acts 1963, 58th Leg., p. 60, ch. 40, changed to the name of West Texas State University in what is now Article 2647d.

      . Article 2644a, V.A.T.S., changed the name of Board of Regents of the State Teachers’ Colleges to Board of Regents, State Senior Colleges.

      . Heaton v. Bristol, Tex.Civ.App., 317 S.W.2d 86 (writ ref.) cert. den. 359 U.S. 230, 79 S.Ct. 802, 3 L.Ed.2d 765, reh. den. 359 U.S. 999, 79 S.Ct. 1123, 3 L.Ed.2d 987.

      . The record does not show the size of the containers from which they were consumed.

      . A GTO appears to be a racing type sports model car with twin four-barrel carburetors capable of great speed.

      . Wood v. Simpson, 146 Md. 547, 126 A. 882, 39 A.L.R. 1016; Pugsley v. Sellmeyer, 158 Ark. 247, 250 S.W. 538, 30 A.L.R. 1212; State ex rel. Sherman v. Hyman, 180 Tenn. 99, 171 S.W.2d 822, Tennessee Supreme Court.

      . Morton’s Estate v. Chapman, 124 Tex. 42, 75 S.W.2d 876; Industrial Accident Board v. Glenn, 144 Tex. 378, 190 S.W.2d 805; McDowell v. Hightower, 111 Tex. 585, 242 S.W. 753.

      . Denison v. Sheppard, 122 Tex. 445, 60 S.W.2d 1031; United Production Corporation v. Hughes, 137 Tex. 21, 152 S.W.2d 327.


author: SHARPE, Justice.

text:
    GOAD-BOLES MOTORS, INC., Appellant, v. VICTORIA PAVING COMPANY, Inc., Appellee.
    No. 237.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 17, 1966.
    Rehearing Denied Dec. 15, 1966.
    O. F. Jones, Jr., of Guittard, Henderson, Jones & Lewis, Victoria, for appellant.
    Harry F. Maddin, of Cullen, Mallette, Maddin, Edwards & Williams, Victoria, for appellee.
   OPINION

SHARPE, Justice.

This appeal is from a judgment in a non-jury case wherein the court denied a recovery to all parties.

Appellee, Victoria Paving Company, Inc., sometimes hereafter referred to as “contractor” sued appellant Goad-Boles Motors, Inc., sometimes hereafter referred to as “owner” for the unpaid balance of $600.00 on a contract for improvements, consisting of paving and other work, on a lot owned by appellant in the City of Victoria, Texas. Appellant asserted a cross-action for $2,-281.50, plus attorneys fees, against appellee for damages allegedly suffered because of appellee’s breach of the contract or of the guaranty therein contained. The trial court rendered judgment that neither party recover, from which only owner has appealed. Findings of fact and conclusions of law were made and filed by the trial court as follows:

FINDINGS OF FACT
1. That Victoria Paving Company, Inc. and Goad-Boles Motors, Inc. are both Texas corporations.
2. That Victoria Paving Company, Inc. made a bid in writing on or about July IS, 1964, to clear and top with a two course penetration asphalt treatment a vacant tract of property fronting on Rio Grande Street in Victoria, Victoria County, Texas. I further find that Goad-Boles Motors, Inc. accepted this bid and the same became a written contract with respect to the services to be performed.
3. That the contract price agreed upon was Four Thousand Five Hundred Ten ($4,510.00) Dollars. I further find that at the request of Goad-Boles Motors, Inc., Victoria Paving Company, Inc. expended the sum of Ninety ($90.00) Dollars for additional materials in connection with the contract of July 15, 1964 and that the contract, therefore, was Four Thousand Six Hundred ($4,600.00) Dollars.
4. That before suit was filed on the contract, Goad-Boles Motors, Inc. paid to Victoria Paving Company, Inc. the sum of Four Thousand ($4,000.00) Dollars. That under the terms of the contract I find there was an additional Six Hundred ($600.00) Dollars owing.
5. That on February 25, 1965, Goad-Boles Motors, Inc. wrote Victoria Paving Company, Inc. asking for a bid to rework the lot in question, raise the grade of the lot and to apply a different topping to the area involved. I further find in this connection that Victoria Paving Company, Inc. did not bid on the second proposal and was under no obligation to do so.
6. That the contract between Victoria Paving Company, Inc. and Goad-Boles Motors, Inc. had a one-year guarantee which had not expired on February 25, 1965, the date Goad-Boles Motors, Inc. requested the bid in the foregoing finding.
7. That at all times from the date of the contract between Goad-Boles Motors, Inc. and Victoria Paving Company, Inc., Victoria Paving Company, Inc. made a diligent effort to satisfy Goad-Boles Motors, Inc.- and was doing patch work on the premises involved on February 25, 1965.
8. That Goad-Boles Motors, Inc. entered into an agreement in February of 1965 with Brannon Construction Company to rework the lot in question, to change the grade and to top the surface with a. different topping, which topping was more expensive in the industry than the topping contracted for with Victoria Paving Company, Inc.
9. That Brannon Construction Company re-did the lot under its agreement with Goad-Boles Motors, Inc. for Two Thousand Eight Hundred Eighty-one and 50/100 ($2,881.50) Dollars.
10. That it would have cost Victoria Paving Company, Inc. approximately Six Hundred ($600.00) Dollars to complete its contract to the satisfaction of Goad-Boles Motors, Inc. and that this work was done by Brannon Construction Company when it entered into the performance of its agreement of February 1965 with Goad-Boles Motors, Inc.
11. That the contract between Goad-Boles Motors, Inc. and Brannon Construction Company was not necessitated by the failure of Victoria Paving Company, Inc. to perform its obligations under its contract with Goad-Boles Motors, Inc. and that Victoria Paving Company, Inc., therefore, has no obligation to pay any part of the contract price.
CONCLUSIONS OF LAW
I conclude that the above findings of fact are insufficient to sustain the burden of proof of either the plaintiff or cross-plaintiff for judgment against one another and that, therefore, neither party should recover of and from the other and that a take nothing judgment be entered against both parties.

Appellant asserts fourteen points of error, which are briefed and argued together. In substance they make the following contentions: owner met its burden of proof with respect to each element of its cause of action; the evidence is legally insufficient to support findings numbers 10, 11, and the judgment; the evidence is factually insufficient to support findings numbers 10, 11, and the judgment; the court erred in concluding that neither party had sustained its burden of proof, particularly in the light of fact findings; and that the trial court should have made four findings of fact requested by appellant.

Appellee, by two reply points in support of the judgment, contends in substance (1) that appellant failed to show any breach by appellee of the contract, covenant or undertaking, express or implied, and (2) that appellee failed under any measure of damages applicable to the case to establish a right to recovery.

We sustain appellee’s reply points and affirm the judgment.

The letter contract between the parties reads as follows:

“Goad Boles Motor Co.
714 E. Rio Grande
Victoria, Texas
Attention: Mr. Boles
The Victoria Paving Co. proposes to do the following item of paving at the Goad-Boles Motor Co. as follows:
To remove all trees, brush and stumps.
To place the surplus excavated dirt on the North-West corner of the block.
To install on a compacted subgrade an eight inch compacted processed gravel base.
To top with a two course penetration toping of asphalt oil and pre-coated rock asphalt.
This work to be done for $4,510.00.
We will install six inch concrete drives for 80{5 per square foot and four inch sidewalk for 65 per square foot.
This work will be guaranteed for one year.
Yours truly,
/s/ Harry N. Moore
Harry N. Moore
Victoria Paving Co.”

The record reflects that contractor completed the work he agreed to do on or about August 15, 1964, and received $4,000.00 of the $4,600.00 ($4,510.00 plus $90.00) which owner had agreed to pay. Owner thereafter complained about several matters, principally that water would stand in some places, would not drain, and that the topping was soft and would break loose and buckle in places. Contractor attempted to satisfy owner as to such complaints and continued to do work on the premises until sometime during the month of February 1965, in accordance with his guarantee for one year. On about February 25, 1965, owner decided to have a portion of the work re-done and asked contractor to submit a bid for the same. Contractor did not make such a bid but wrote a letter to owner dated February 15, 1965, reading as follows:

“Gentlemen:
In order to comply with the provisions of our proposal of July 15, 1964, under which our paving was done for you, we are ready, willing and able to remove the patches which we have placed on the pavement, prepare or dry the base where the patches are located and repatch that area with premix asphalt. This will be done at our expense. We believe this to be the extent of our obligation and to be consistent with good paving practice. If we are unable to accomplish this, we cannot be responsible under our guarantee for any present or future damage or detenation
Please advise immediately if this is acceptable to you.”

Owner, by J. E. Boles, its president, then wrote contractor a letter dated February 25, 1965, stating in substance that owner had agreed with another contractor to do certain resurfacing work for $2,741.25, that owner still owed contractor $600.00, and that owner would expect contractor “to reimburse me for the amount of the finishing of the asphalt hardtopping of the lot” and further offered to negotiate the matter.

Under these circumstances, the trial court correctly found that the agreement between the owner and the new contractor was not necessitated by appellee’s .failure to perform under its original contract and that appellee did not have an obligation to pay any part of the new contract price. The record shows that contractor completed the work it originally agreed to do and that when owner made complaints, contractor continued to honor its guarantee or warranty. There is no evidence showing that the work contractor proposed to do as stated in its letter of February 15, 1965, would not have remedied the matters complained of by owner. It is further apparent that owner’s conduct prevented contractor from making good on its guarantee.

In the trial court owner took the position that contractor failed and refused to complete the original contract and claimed damages for the cost of completing the work. In this court, owner’s position is that contractor performed the original work agreed to be done but breached the guarantee contained in the contract or an expressed or implied warranty. Owner places reliance upon the cases of New Home Construction Corporation v. O’Neill, 373 S.W.2d 798 (Tex.Civ.App. 1963, writ ref., n. r. e.); McKnight v. Renfro, 371 S.W.2d 740 (Tex.Civ.App.1963, writ ref., n. r. e.); Loggins v. Gates, 301 S.W.2d 525 (Tex.Civ.App. 1957, writ ref. n. r. e.); Graves v. Allert & Fuess, 104 Tex. 614, 142 S.W. 869, 39 L.R.A.,N.S., 591 (1912), affirming Tex.Civ.App., 128 S.W. 940.

Although it is clear to us that there was no breach by contractor of the contract or guarantee contained therein, it is further apparent that had there been such breach, owner did not produce evidence which would support a recovery under the applicable measure of damages. Owner did not attempt to show the value of the work done by contractor as compared to its value if performed in accordance with the original agreement.

The work which was done by the new contractor was a major reconstruction of the parking lot, which, under owner’s theory was required to make the lot suitable for the purpose for which it was intended to be used. The structure, which was the subject of the original contract, was changed in material part by the additional work done by owner through the new contractor, and the expense, even allowing for cost of different material, was approximately 46 percent of the original work. If there had been liability on contractor for breach of the original contract, the facts developed at the trial would establish that there had not been a substantial performance of it and the case would therefore fall within the rule (not met with here) that the measure of damages is the difference between the value of the project as constructed and its value had it been constructed in accordance with the contract. Hutson v. Chambless, 157 Tex. 193, 300 S.W.2d 943 (1957); followed in Inwood Construction Company v. Huntington Corp., 400 S.W.2d 372 (Tex.Civ.App.1965, wr. ref. n. r. e.), which is closely in point to the instant case.

The judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    Howard F. OWENS et ux., Appellants, v. ACME OIL COMPANY et al., Appellees.
    No. 206.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 10, 1966.
    Rehearing Denied Dec. 8, 1966.

      George L. Schmidt, Schmidt & Garrett, Houston, for appellants.
    Timothy E. Kelley, George C. Chapman, Thompson, Knight, Simmons & Bullion, Dallas, for appellees.
   DUNAGAN, Chief Justice.

Appellants, Howard F. Owens and his wife, Mrs. Marie Owens, plaintiffs below, brought this suit against appellees, Roy F. Calvert, individually, and the Acme Oil Company, a partnership comprised of Roy F. Calvert and F. A. Cotey, for injuries sustained by Mrs. Owens when appellee, Roy F. Calvert, backed his car into the front of an automobile driven by appellant, Mrs. Owens. Based upon jury findings that Mrs. Owens was guilty of certain acts of contributory negligence, judgment was entered for the appellees. Appellants appealed therefrom asserting what are commonly referred to as “no evidence” and “insufficient evidence” points of error.

The accident in question between appellant, Mrs. Marie Owens, and appellee, Roy F. Calvert, occurred on August 23, 1963, at approximately 1:00 p. m. The parties were on what Mrs. Owens described as a private road maintained by the Lake Ioni Club. The road was a narrow, two-rut road in a wooded area near Palestine.

Mr. Calvert had a crew of men in the area servicing oil well pumping units and he had arrived in the area around 9:00 a. m. on the morning of the accident. He had two of his men working on a well close to where the accident happened, and he had stopped in the road waiting for them to finish so he could show them where the next well was.

Mr. Calvert was seated in his car facing the well where the men were working, which was a distance of approximately 200 yards. As the men started to leave their immediate location, Calvert feared that if they took a certain route, they would get stuck in the sand, which the evidence shows was 10 to 12 inches deep, so in an effort to get them to follow him, he motioned for them to come his way. After motioning, when he thought they understood, he closed the door to his car.

Mrs. Owens had pulled up to his automobile approximately 10 feet directly behind Mr. Calvert where he had been parked something like 45 minutes, and when she observed his motioning to his men, she erroneously thought he was waving her backwards. Actually, Mr. Calvert had not seen Mrs. Owens and never saw her nor knew she was behind him until the impact occurred.

Mrs. Owens gave the following testimony in response to questions propounded to her on direct examination:

“A Well, when I entered the club property, that road forms a crow’s foot, and gives the name of all the people there, and the right hand road that leads down to our cabin and almost immediately after I hit this road, I saw Mr. Calvert’s car down the road ahead of me, I’d say about 150 yards.
“Q And, what did you do when you saw his car in front of you?
“A Well, I just kept going on down the road and Mr. Calvert was stopped there, and whenever I saw Mr. Calvert was stopped there, I stopped behind him.
“Q How far behind him did you stop ?
“A I couldn’t tell you exactly how far behind him it was. But, I would say at least ten feet, because I could see Mr. Calvert’s tail lights and everything.
(i ⅜ ⅜: J-c
“Q All right. Now, when you came to a stop, what happened ?
“A Well, when I came to a stop, Mr. Calvert was sitting in his car. He rolled his window down and stuck his hand out and he gave a signal this way (witness indicating with hand), and he rolled his window back up and put his car in reverse, his back-up lights came on and I assumed he wanted me to back up, because I didn’t see anyone near us, so I turned around in my car to look out the back, in order that I could see my way clear and see if there was anybody behind me and how far I was going to back up in order to give Mr. Calvert room to get out. I figured he had gotten on the wrong road and he wanted to get back on the right road.
“Q And, what happened ?
“A As I turned around and was looking out the back of the car, the next thing I knew Mr. Calvert had hit me. I felt an impact.”

On cross-examination, Mrs. Owens testified :

“Q Did you ever see Mr. Calvert turn around and look at you ?
“A No, sir, I did not.
“Q You did see his back lights go on?
“A Yes, sir.
“Q Did you see him start to move backward ?
“A No, sir, I didn’t see him start to move backwards, because when I saw his backup lights come on and after he had given a signal, I turned around in my car, to see which way I was going to go to back out of his way.
“Q Incidentally, did you honk your horn at all?
“A No, sir, I didn’t blow my horn.
* * *
“Q Had you started moving backwards at all ?
“A No, sir, I had not. I turned around to observe the view behind me, to make sure nobody was behind me, that the road would be clear for me to back up.
“ * * *
“Q Had you shifted into reverse ?
“A No, sir, I don’t remember whether I did or not. I just could not say and be truthful about it.”

Mrs. Owens did not offer any positive or direct testimony as to why she did not sound her horn immediately upon seeing that Mr. Calvert was preparing to move his car backward.

It is our opinion that under the record as a whole the law imposed a duty upon Mrs. Owens to sound the horn under the circumstances shown and the question as to whether her failure so to do was “negligence,” as that term was defined in the court’s charge, was for determination by the jury. Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109; Page v. Scaramozi, 288 S.W.2d 909 (Tex.Civ.App.), San Antonio, 1956, writ ref., n. r. e.; Tarry Warehouse & Storage Co. v. Price, 76 S.W.2d 162 (Tex.Civ.App.), Fort Worth, 1934, writ dism.

Mr. Calvert’s testimony substantially confirmed the testimony of Mrs. Owens in regard to the events and circumstances leading up to the collision.

Mr. Calvert and Mrs. Owens were the only occupants of their respective automobiles. Mrs. Owens did have a little dog in the front seat with her. The record does not reflect that there were other witnesses to this accident.

The jury found that Mr. Calvert failed to keep a proper lookout and that such failure was a proximate cause of the collision in question and that Mr. Calvert did not back his automobile on the occasion in question at a speed in excess of that in which a person of ordinary prudence in the exercise of ordinary care would have backed the same, under the same or similar circumstances. However, the jury did find that Mrs. Owens failed to keep a proper lookout, which was a proximate cause of the collision, and that her failure to blow her horn was negligence and that such negligence was a proximate cause of the collision. The jury also found that “It was not the result of an unavoidable accident.”

The appellants contend: (1) there was no evidence; (2) insufficient evidence to support the submission of either of the contributory negligence issues or the rendition of the judgment upon such findings by the jury; (3) and that the jury’s findings of each of the contributory negligence issues were so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. They further contend the trial court erred in refusing to disregard the jury’s answers to said contributory negligence issues because such findings are supported by no evidence, or insufficient evidence, and are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.

It is also appellants’ contention that under the circumstances: (1) Mrs. Owens was under no duty to blow her horn; (2) that she could not legally be charged with anticipating or foreseeing, under the circumstances surrounding this accident, that Mr. Calvert would back his automobile without looking; (3) or waiting until the way was clear before backing it; (4) therefore, the findings of the jury and the judgment of the court imposed upon her the impossible duty to keep a lookout ahead and to the rear at the same time while backing to clear Mr. Calvert’s automobile, and the duty to anticipate and foresee that appellee, Roy F. Calvert, would not look to the rear before backing, or would not wait until her car was clear.

The court’s charge contains the following instructions and definitions:

“By the term ‘negligence’, as used in this charge, is meant a failure to do that which a person of ordinary prudence, in the exercise of ordinary care, would do under the same or similar circumstances, or the doing of that which a person of ordinary prudence, in the exercise of ordinary care, would not do under the same or similar circumstances.
“By the term ‘ordinary care’ is meant that degree of care which would be exercised by a person of ordinary prudence under the same or similar circumstances.
“By the term ‘proximate cause’, as used in this charge, is meant a cause which in a natural and continuous sequence produces an event and without which the event would not have occurred; and to be a proximate cause of an event, it should have been reasonably anticipated and foreseen by a person of ordinary prudence, in the exercise of ordinary care, that the event or some similar event would occur as a natural and probable consequence. There may be more than one proximate cause of an event.”

The Supreme Court of this state in Liberty Film Lines, Inc. v. Porter, 136 Tex. 49, 146 S.W.2d 982, said :

“Appellate courts are without authority to set aside jury verdicts, particularly on questions of proximate cause in damage suits, upon conflicting facts — the undisputed facts must be ample and clear, and the circumstances most exceptional to justify such action. Chief Justice Hickman, while on the Eastland Court, tersely stated the principle to which I refer, in Jones v. Gibson, Tex.Civ.App., 18 S.W.2d 744, 745: ‘Undoubtedly, facts might exist in a given case which would be so conclusive in their nature as to establish, as a matter of law, that a certain act of negligence was the proximate cause of an injury; but such cases are indeed rare, and an examination of the authorities will reveal but few instances in which facts have been so interpreted.’ ”

See also Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, (S.Ct.) 1939; Bigers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, (S.Ct.) 1957; Hipfner v. Anderson, 258 S.W.2d 357, 359, (Tex.Civ.App.) 1953, writ ref., n. r. e.

The Supreme Court in the case of Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332 (1946), stated:

“Contributory negligence barring a recovery as a matter of law is a conclusion sometimes compelled by the evidence, but such cases are relatively rare. Ordinarily, this question is for the trier of facts and only becomes a matter of law for the court when but one reasonable conclusion can be drawn from all the testimony. (Citing cases) It is obvious that had Day been more cautious, he would not have been injured. But whether the precautions he took amounted to due care was properly left to the jury. * * *
* * * The conclusion is inescapable that he did exercise some care for his own safety. Whether his conduct met the requirements of ordinary care under all the circumstances was not for the court but for the jury to determine.”

See also Irvin v. Ralston, 379 S.W.2d 111, (Tex.Civ.App.) 1964, n. w. h.

The rule is that, if the evidence is conflicting, the jury must decide the conflict; and if the evidence is not conflicting, but reasonable minds might differ as to its effect, still a fact issue is presented. Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224, (S.Ct.) 1942; Commercial Standard Ins. Co. v. Davis, 134 Tex. 487, 137 S.W.2d 1, 2, (Tex.S.Ct.) 1940; Plata v. Gohman, 359 S.W.2d 163, (Tex.Civ.App.) 1962, n. r. e.; Spears Dairy, Inc. v. Bohrer, 54 S.W.2d 872, 876, (Tex.Civ.App.) 1932, writ dism.

It was within the province of the jury as the trier of the facts to pass upon the credibility of the witnesses and the weight to be given their testimony. Martin v. J. S. Hunt Lumber Co., Inc., 180 S.W.2d 956, (Tex.Civ.App.) 1944, n. w. h.; Joe D. Hughes, Inc. v. Moran, 325 S.W.2d 829, (Tex.Civ.App.) 1959, writ ref., n. r. e. The jury is the judge of the facts and circumstances proven and may draw reasonable inferences and deductions from the evidence adduced before it. Peck v. Century Concrete Products, Inc., 375 S.W.2d 459, (Tex.Civ.App.) 1964, writ ref., n. r. e.

Thus, some of the conclusions or inferences the jury could have made from the testimony of Mr. Calvert and Mrs. Owens are: (1) she knew Calvert was preparing to back up while she was at least ten feet away; (2) while she was aware of Calvert’s location, he was looking directly ahead, not in her direction, and was not aware of her presence behind him; (3) that had Mrs. Owens honked her horn while Calvert was ten feet away from her, (which she had every opportunity to do) Calvert would have had his attention called to the imminence of any danger and would have avoided his backward movement; (4) that even the slightest warning by Mrs. Owens could have averted the collision; (5) that she took an unreasonably long period of time in looking to the rear for automobiles on this infrequently traveled trail; (6) that she did not make a reasonable and prudent assumption in assuming that Calvert’s motioning to his men was a motioning for her to back up; (7) that she did not act as a reasonably prudent person by turning around to see if anyone was behind her instead of merely relying on a rear view mirror; (8) she was negligent in not looking to her rear immediately following Calvert’s motioning, as he thereafter (after he thought his employees understood) closed the door on his car before he started any backward movement.

It seems to be well settled that ordinarily, the issue of proximate cause is a question of fact for the determination of the jury and its verdict is to be sustained. 40 Tex.Jur.2d 708, Sec. 165. Issues as to the liability of a party for his failure to sound his horn, so as to enable the other party to avoid the accident, are properly determined by the jury. 7 Tex.Jur.2d 470; Melton v. Tarrant Utility Company, Inc., 339 S.W.2d 379, (Tex.Civ.App.) 1960, n. w. h.; Texas Textile Mills v. Gregory, 142 Tex. 308, 177 S.W.2d 938, (S.Ct.) 1944; Temple Lumber Co. v. Living, 289 S.W. 746, writ ref.; Smith v. City Transp. Co., 245 S.W.2d 296, (Tex.Civ.App.) writ ref., n. r. e.; J. E. Stevens Funeral Home v. Busby, 336 S.W.2d 812, (Tex.Civ.App.) 1960, n. w. h.; Barron v. James, 198 S.W.2d 245, 253, (Tex.Civ.App.) 1946, n. w. h. It has likewise been held that the issue of whether or not given acts constitute negligence is essentially a jury question. Plata v. Gohman, supra. Ordinarily, contributory negligence and proper lookout are questions for the jury. Dillard v. Griffin, Tex.Civ.App., 341 S.W.2d 696, 697, writ ref., n. r. e.; Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332, (1946); Industrial Oxygen Company v. Campbell, 405 S.W.2d 794, 796, (Tex.Civ.App.) 1966, n. w. h. Moreover, since Mrs. Owens was an interested party, the jury was not required to accept as the truth her testimony regarding the character of her lookout. Ward v. Larrimore, 290 S.W.2d 764, (Tex.Civ.App.) 1956, writ ref. n. r. e.

In an opinion written by Justice Pope while on the San Antonio Court of Civil Appeals in the case of Plata v. Goh-man, supra, it was said:

“ * * * Even though one is not required to anticipate negligent conduct, he is not entitled to close his eyes to that which is plainly visible and which would have been observed by a person of ordinary prudence similarly situated, (cases cited)”

See also De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, (S.Ct.) 1955; Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, (S.Ct.) 1958. It has also been held that the abstract statement that one may assume that others will act in a lawful and non-negligent manner is, because of its generality, misleading. Even if a person is not bound to anticipate unlawful or negligent conduct by others, he is nevertheless under a duty to use ordinary care to prevent injury to himself or to others. Martinez v. Hernandez, 394 S.W.2d 667, (Tex.Civ.App.) San Antonio, 1965, writ ref., n. r. e.; Tarry Warehouse & Storage Co. v. Price, supra.

In connection with the special issue inquiring as to whether Mrs. Owens failed to keep a proper lookout, the court gave the following definition: “By the term ‘proper lookout’ as used herein is meant such a lookout as would have been kept by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances.” When the jury found from a preponderance of the evidence that “at the time and on the occasion in question” Mrs. Owens “failed to keep a proper lookout,” it necessarily found that the plaintiff had a duty to keep a proper lookout for dangers which might reasonably have been anticipated and a breach of the duty. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, (S.Ct.) 1966, and De Winne v. Allen, supra.

Under the record in this case, the jury in answering the “lookout” issues might reasonably have concluded that Mrs. Owens could have extricated herself from any hazard by (1) looking in the rear view mirror instead of turning around; (2) making a quick observation to the rear; (3) not turning her back on Mr. Calvert after observing his back-up lights; (4) not looking so long to the rear; (5) in glancing around to her back after the motioning by Mr. Calvert and then re-observing him before he started his backward movement. While she might not have been bound to anticipate in advance that Mr. Calvert would back without looking, we believe that it was for the determination of the jury as to whether or not Mrs. Owens was relieved of the duty to keep a proper lookout or sound her horn and if such failure was negligence and a proximate cause of the collision, especially since she had observed that Calvert had not looked back in her direction, and immediately prior to the collision had seen his back-up lights coming on that he was in the process of making a backward movement.

It is true the jury found Mr. Calvert guilty of negligence which proximately caused the collision. The question before us, however, is not whether the failure of Mrs. Owens to honk her horn or to maintain a “proper lookout” caused the collision, but whether such failure proximately contributed to it. Melton v. Tarrant Utility Company, Inc., supra; and Alexander v. Missouri, K. & T. R. Co. of Texas, 287 S.W. 153, (Tex.Civ.App.) 1926, writ dism.

Taking into consideration all the facts and circumstances surrounding this accident and particularly the undisputed fact that Mrs. Owens knew that Mr. Calvert was going to move his car backward, and from the time she first saw him that he never looked back toward her, nevertheless she turned and looked in the opposite direction to the rear of her car not sounding her horn to warn him of the imminence of any danger that could have avoided his backward movement and averted the collision, we cannot say as a matter of law that she was not negligent and such negligence was not a proximate cause of the collision or proximately contributed to it.

As the evidence reveals, the circumstances surrounding this accident and the unusual manner in which it occurred have made it very difficult for this court to make what it deems to be a proper disposition of the questions here presented. However, under a careful review of all the facts and circumstances, under the reasonable-prudent-man standard of negligence, we hold the evidence presented fact issues for the jury to determine (1) whether or not the failure of Mrs. Owens to sound her horn immediately prior to the collision or immediately upon her knowledge that Mr. Calvert was preparing to move his car backward was negligence and a proximate cause of the collision; (2) whether or not Mrs. Owens failed to keep a proper lookout immediately prior to the collision and that such failure to do so was a proximate cause of the collision. J. E. Stevens Funeral Home v. Busby, supra; Melton v. Tarrant Utility Company, Inc., supra; Staten v. Monroe, 150 S.W. 222, (Tex.Civ.App.) 1912, n. w. h.

Consideration of appellants’ •points has required us to examine the entire Statement of Facts. We have conducted our examination of the record in the light of the rules announced by the .Supreme Court in In re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660. In determining the “no evidence” question, which is one of law, we may consider only that •evidence, if any, which viewed in its most •favorable light, supports the jury findings -and we must disregard all evidence which would lead to a contrary result. Thomas v. Magnolia Chemical Company of Texas, Inc., 394 S.W.2d 50, (Tex.Civ.App.) 1965, writ ref., n. r. e.; Biggers v. Continental Bus System, Inc., supra; Dillard v. Griffin, supra. In determining the “insufficient evidence” question, which is one of fact, we consider and weigh all the evidence in the case to determine whether the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. We deem the evidence to be sufficient to support the submission of the various contributory negligence special issues and the jury’s answers thereto, and that none of the answers made by the jury in response to said issues are so contrary to the weight and preponderance of the evidence as to be manifestly wrong and unjust. See Adams v. Houston Belt & Terminal Railway Company, 405 S.W.2d 838, 843, (Tex.Civ.App.) 1966, n. w. h.

We have considered all of appellants’ points of error and believe them to be without merit and same are overruled.

The judgment is affirmed.


author: BATEMAN, Justice.

text:
    AMERICAN PRODUCE & VEGETABLE COMPANY, Appellant, v. PHOENIX ASSURANCE COMPANY OF NEW YORK, Appellee.
    No. 16807.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 18, 1966.

      L. W. Anderson, Dallas, for appellant.
    Bailey, Williams, Weber & Allums, and James C. Allums, Jr., Dallas, for appellee.
   BATEMAN, Justice.

Appellant maintained in its place of business a refrigerated room in which it stored a large quantity of food. Ammonia was the refrigerant used. • During the night of November 21-22, 1963 ammonia escaped from the refrigerating system and contaminated much of the food. Appellee had issued to appellant an insurance policy, upon which appellant sued to recover its loss. Appellee denied liability, on the ground that a certain clause in the policy was applicable which, omitting immaterial portions, was as follows:

“6. PERILS EXCLUDED: This Policy does not insure:
“(d) Loss or damage caused by or resulting from * * * contamination, change in flavor or color * * * unless such loss or damage is caused directly by * * * bursting of pipes or apparatus * * *; ”

Both sides relied on expert testimony. Appellant offered no testimony of any actual breaking or rupture of any metal pipes, valves or other metal portions of the refrigerating system but did offer the opinion testimony of its employee, Otto Caten, who had been employed by it for twenty years in maintenance of the refrigeration equipment, although he was not a professional engineer. He testified that, although the ammonia apparently escaped by leaking through the fibrous packing in a certain valve, there had to develop a sudden opening in that packing; that the ammonia had to rupture or burst some of the fibers in the packing to escape through it. He testified that after the leak was discovered he stopped it by tightening the packing nuts on some valves and a certain flange. He went back several days later and repacked the valves. He testified that he believed it was the packing in the valves that caused the leak. On cross-examination he stated that it was a normal maintenance procedure to tighten down packing nuts from time to time because if this was not done a leak would occur; that this was true whether there was any defect in the packing or not, and that from time to time during normal maintenance he would have to replace some of the packing.

Appellee introduced the testimony of Wayne Parish, an employee of Haag Engineering Company, who testified that he had a Bachelor of Science degree in Chemical Engineering from the University of Texas, had also concluded a course in Mechanical Maintenance Engineering at Yale, and had been practicing consulting engineering for nineteen years; that some four days after the occurrence in question he visited appellant’s place of business and that he inspected the valves and discussed the matter with Mr. Caten. He expressed the opinion that there was no possibility of there, being a hole or fracture in the packing and that the tightening procedure would not have stopped the leak if it were due to a hole in the packing; that leakage around packing is probably the most common type of leakage in gas systems; that the packing shrinks away from the metal, losing its resilience, and does not separate at any one particular point because it is under pressure ; and that in his opinion it did not happen suddenly, but would start out as a seep, and passage of the anhydrous ammonia would actually continue to dry out the packing even more and the leak would increase until you readjust the packing gland.

Thus, it was undisputed that the damage was caused by leaking ammonia. Appellant had the burden, however, of showing that the leak was caused directly by “bursting of pipes or apparatus.” The jury had a right to adopt the theory advanced by either of the expert witnesses, and also to decline, as it did in answer to Special Issue No. 1, to find from a preponderance of the evidence that the loss was caused directly by a bursting of an apparatus. There being no other finding by the jury supporting appellant’s claim, the court properly rendered judgment that it take nothing.

By its first point of error on appeal appellant asserts error in the rendition of a judgment based upon the answer to Special Issue No. 1 because such answer was so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust, and because there was no evidence or insufficient evidence to support said answer. We have carefully reviewed all of the evidence in the case and we cannot say that the jury finding in question was against the overwhelming weight or preponderance of the testimony. In our opinion the verdict was amply supported by competent evidence.

Appellant relies heavily on Crombie & Co. v. Employers’ Fire Ins. Co. of Boston, Tex.Civ.App., 250 S.W.2d 472, wr. ref. n. r. e. The facts of the two cases were somewhat similar, although in the Crombie case it was necessary for the plaintiff to establish that the loss or damage had been caused by an explosion. The jury so found, but the court sustained the defendant’s motion for judgment non obstante veredicto. That judgment was reversed and rendered for the plaintiff for the amount of damage found by the jury. We think our holding in this case is entirely consistent with that in the Crombie case. There was evidence in both cases to warrant the submission of the issue to the jury. In the Crombie case the jury found that the loss was caused by the peril insured against, which required a judgment for the plaintiff. In the case now before us, the jury found that the loss was not caused by the peril insured against, which required the judgment for the defendant.

Appellant in this case also filed a motion for judgment non obstante veredicto, which was overruled. It is a part of his first point of error that the court erred in overruling the same. To show itself entitled to a judgment notwithstanding the verdict, it was necessary for appellant to show on appeal that there was no evidence to support the verdict. Calvert, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error,” 38 T.L.R. 361, 362. As there was evidence to support the verdict, this contention of appellant must be overruled.

Appellant’s first point of error in its entirety is overruled.

By its second point of error appellant complains again of the overruling of its motion for judgment non obstante veredicto, because the jury’s answer of “None” to Special Issue No. 2, inquiring as to the amount of damages, if any, they found from a preponderance of the evidence the appellant had sustained as a result of the incident in question, was so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust, because all of the evidence was to the contrary, and demonstrated as a matter of law that the jurors were prejudiced. We see no merit in this contention.

As pointed out above, appellant was not entitled to a judgment notwithstanding the verdict because there was competent evidence to support the jury’s answer to Special Issue No. 1. In view of that finding, so supported, appellee was entitled to its take-nothing judgment regardless of the extent of the damage suffered by appellant and regardless of whether the jury had found a large amount of damages or had failed to answer Special Issue No. 2 at all. That issue became immaterial in view of the answer to Special Issue No. 1. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334; Dillon v. Moore, Tex.Civ.App., 367 S.W.2d 70, no wr. hist.

We find nothing in the record to suggest that the jury was induced by prejudice, bias or improper influence to answer the damage issue as it did. The mere fact that such answer was made despite the undisputed testimony of appellant’s employees as to a certain amount of damage, is not in itself sufficient to establish such prejudice, bias or improper influence. Southern Pine Lumber Co. v. Andrade, supra.

Appellant’s second point is therefore overruled.

The judgment of the trial court is

Affirmed.


author: DAVIS, Justice.

text:
    TEXAS HIGHWAY DEPARTMENT, Appellant, v. Eldridge JARRELL, Appellee.
    No. 7768.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 15, 1966.
    Rehearing Denied Dec. 13, 1966.

      Waggoner Carr, Atty. Gen., Malcolm L. Quick, Asst. Atty. Gen., Austin, for appellant.
    C. V. Flanary, Jr., Flanary & Bailey, Paris, for appellee.
   DAVIS, Justice.

This is an action to set aside a Workmen’s Compensation Settlement Agreement on the grounds of fraud. The jury answered all the issues in favor of plaintiff appellee, Eldridge Jarrell. A judgment was entered setting aside the compromise settlement agreement. Defendant appellant, Texas Highway Department has perfected its appeal. It brings forward only one point of error, which reads as follows: “The trial court erred in overruling appellant’s plea in abatement.”

HISTORY

The case had previously been filed in the District Court of Delta County as Cause No. 6097 as a result of a Senate Concurrent Resolution #53, (1963). Appellant filed a plea of privilege which was overruled by the trial court. An appeal was taken to the Court of Civil Appeals of the Sixth Supreme Judicial District of Texas, Texarkana, Texas. The Court of Civil Appeals decision reversed the judgment of the trial court and ordered Cause No. 6097 transferred to the District Court of Travis County, Texas. The Supreme Court of Texas dismissed the application for writ of error for the want of jurisdiction. While the case was pending, Senate Concurrent Resolution #27, (1965) was passed granting appellee permission to sue the State and placing the venue in Delta County. Cause No. 6097 was transferred to the District Court of Travis County, and the appellee took a non-suit. Appellee filed Cause No. 7064, involving the same parties and subject matter in the District Court of Delta County. Appellant filed a plea in abatement. The trial court overruled the plea in abatement. The case was tried before a jury. Judgment was entered upon the jury verdict. Hence, this appeal.

Senate Concurrent Resolution #53, (1963), was not a statute, but only permission to bring a civil suit. It did not fix the venue in Delta County. After the courts had sustained a plea of privilege, the Legislature next enacted Senate Concurrent Resolution #27, (1965). This was a permissive resolution that authorized the ap-pellee to bring a civil suit in Delta County, growing out of the same transaction, involving the same people as was involved by SCR #53, but fixing venue in Delta County.

The State of Texas was, in truth and in fact, a party to the original suit. The Legislature of the State of Texas is the only agent of the State that can enact any concurrent resolutions, or grant anyone permission to sue the State. The Legislature enacted the following Concurrent Resolution #27:

“WHEREAS, Eldridge Jarrell of Cooper, Texas, a former employee of the Texas Highway Department, was granted permission to bring suit against the State of Texas and the Texas Highway Department to set aside a certain workmen’s compensation compromise settlement agreement which Mr. Jarrell signed in August, 1962, such permission to bring said suit having been granted by Acts, 58th Legislature, Regular Session, 1963, Senate Concurrent Resolution No. 53; and
“WHEREAS, the aforesaid Senate Concurrent Resolution did not provide that said suit be brought by Mr. Jarrell in Delta County, the county of his residence, or otherwise fix venue thereof; and
“WHEREAS, Mr. Jarrell, a resident citizen of Delta County, was employed by the Texas Highway Department to work in Delta County and has worked for the Texas Highway Department in Delta County for many years. He was injured in Delta County while an employee of the Texas Highway Department, and the aforementioned compromise settlement agreement was entered into in Delta County, and venue should be fixed in Delta County and Mr. Jar-rell permitted to maintain said suit against the State of Texas and the Texas Highway Department in Delta County; now, therefore, be it
“RESOLVED, By the Senate of the 59th Legislature of Texas, the House of Representatives concurring, that El-dridge Jarrell of Cooper, Texas be and is hereby granted permission and given authority to institute and maintain his suit against the State of Texas and the Texas Highway Department for such relief as he may be entitled to concerning the workmen’s compensation compromise settlement agreement which he signed in August, 1962, in a court of competent jurisdiction in Delta County, and venue of Mr. Jarrell’s suit is hereby fixed in Delta County; and, be it further
“RESOLVED, That nothing herein shall be construed as an admission on the part of the State of Texas, or any of the political subdivisions of the State of Texas, as to the validity of any allegations or claims asserted in said suit must be proved as in other suits under the same rules of evidence and the same laws as apply in and govern the trial of other civil cases; and, be it further
“RESOLVED, That nothing herein shall be construed as a waiver of any defense, of fact as well as law, that may be asserted by or available to the State of Texas, or any of the departments or agencies of the State of Texas, in said suit, but all such defenses are hereby specifically reserved.”

The appellant occupied the same position in this lawsuit as any other litigant. By the enactment of the above Senate Concurrent Resolution #27, it agreed to be sued in Delta County.

There can be both “express” and “implied” waiver of venue rights. The State of Texas expressly waived the venue right in this case by agreeing to be sued in Delta County. Mooney Aircraft, Inc. v. Adams (Tex.Civ.App.1964), 377 S.W.2d 123 N.W.H. The point of error is overruled.

The judgment of the trial court is affirmed.