author: GREEN, Chief Justice.

text:
    SUMNERS ROAD BORING, INC., Appellant, v. J. O. THOMPSON, Appellee.
    No. 113.
    Court of Civil Appeals of Texas. Corpus Christi.
    July 29, 1965.
    Rehearing Denied Sept. 16, 1965.

      Bell, Gwin & Furse, Lawrence P. Gwin, Bay City, for appellant.
    W. Jack Salyer, Bay City, Brown, Kron-zer, Abraham, Watkins & Steely, W. James Kronzer, Houston, for appellee.
   GREEN, Chief Justice.

Appellee J. O. Thompson, plaintiff below, following a jury verdict recovered judgment for damages in the sum of $53,-062.00 against appellant Sumners Road Boring, Inc., for personal injuries received in a rear-end automobile collision. From an order overruling appellant’s amended motion for a new trial, it has perfected its appeal to this court.

In answer to the only special issues submitted to the jury concerning responsibility for the accident, the jury found (1) that at the time of the occurrence made the basis of the suit, Mahler, appellant’s employee, failed to exercise such control of the truck he was operating as would have been maintained by a reasonable and prudent person under the same or similar circumstances, (2) which failure was a proximate cause of the said occurrence, and (3) that the accident was not an unavoidable accident.

All other special issues related to plaintiff’s damages. The court’s judgment was based on the above answers of the jury, together with their responses to the damage issues.

Defendant timely in writing leveled the following objections, which were overruled by the court, to Special Issue No. 1, the “proper control” issue:

“(a) No evidence; (b) insufficient evidence; (c) against the overwhelming weight and preponderance of the evidence; (d) No pleadings; (e) That the submission of the issue of failure to exercise control is a single issue constitutes a general charge

Appellant’s first point of error reads:

“It was error for the Court to submit the primary negligence issues in a single issue of proper control over Appellant’s objection that the same constituted a general charge.”

Appellee’s counterpoint to the above is as follows:

“The Trial Court properly entered a judgment based upon the findings of the jury in response to the ‘proper control’ issues because they were not too general or global, because there were no proper objections thereto, and because the undisputed evidence in the case established Appellant’s responsibility.”

We shall first consider the last part of appellee’s crosspoint. As we view the record, the evidence, when considered most favorably to appellant, shows that Mahler, appellant’s driver, was guilty of negligence as a matter of law in failing to properly apply his brakes, and that such negligence was a proximate cause of the accident. Regardless of whether the trial court erred in submitting the proper control issue, since there was no evidence of any contributory negligence by appellee, appellant, the admitted employer of Mahler acting at the time within the scope of his employment, was under the testimony responsible for the accident.

At the time of the collision, which occurred about 10:30 a. m. on a clear, dry day January 8, 1963, appellee was sitting in the driver’s seat of his car, stopped at a street intersection in Bay City, Texas, waiting for the red traffic light facing him to turn to green so that he could proceed. Mahler testified that as he was approaching from behind appellee’s car, driving about 35 miles per hour, he saw the car while still approximately fifty yards away, and realized it was stopped for a red light. On direct examination, as a witness for appellant, he stated:

“Well, I proceeded into town. I wasn’t in any particular hurry, because I would just have to get back and go back to work, and I came up and this car happened to be setting at a red light, at a dead halt, and I came behind him slowing down and all of a sudden my foot was on the brake, and slowing down, and all of a sudden there was nothing and I rolled up and bumped him. I got out and I told him I would like to go over to the filling station so we wouldn’t block traffic, and we drove over to the filling station and parked. He in front and I parked up against the wall and then someone — ”

On cross examination, he testified:

“Q. Are you now saying that your brakes went out, is that what you are saying, when you say I had nothing—
A. That is not at all what I told you.
Q. Are you now saying that your brakes went out?
A. No, I am not saying my brakes went out. They failed me, in other words, you can have many different ways your brakes failing. I had my foot on the brake now, as far as saying anything that my foot slipped off the brakes, or slipped to the side, and missed, any knowledge I had my foot was on the brake and pressing on it, and it didn’t — wasn’t going to stop. It was at a rolling speed, it wasn’t going to stop before I was going to bump him.
Q. So you swerved when you saw you weren’t going to stop?
A. I didn’t have any time to swerve. I just cut the steering wheel and barely moved over.
Q. And your foot, while your foot went to the floor, it may have gone to the floor, because it came off the brake ?
A. Something like that, could’ve happened.
Q. Right and probably did.
A. I am not saying it probably did, it could have.
Q. But any rate after the accident was over, you had brakes?
A. I had — they were checked, and they were just barely brakes.
Q. But you had brakes that would stop and did stop when you pulled up into the service station?
A. Yes.” * * *
“Q. In all probability, your foot did slip off the brakes?
A. It might have.”

Mahler stated that he had had no trouble with the brakes of the pick-up in driving to town previous to the accident, or in driving and stopping it after the collision. He knew of nothing being wrong with the brakes. Appellant’s witness Joe Sumner, an owner of appellant company, and Mahler’s boss, was a welder and machinist, and frequently did repair work on the company cars. He testified that he checked the brakes on the pick-up after the accident and could not find anything wrong with them. A couple of spoons of hydraulic fluid was all that was required to fill the brake cylinder. A peace officer, called to the scene of the accident, who did not qualify as a mechanic, used by appellant as a witness, was permitted without objection to testify that when he checked the brakes,

“The brakes were classified as defective brakes, by that I mean anytime you don’t — when you might hit a brake, and it doesn’t catch, like it first should why that is my theory that is a defective brake, you pump them up and it’ll take a good long while, by that time somethings already occurred.”

On cross-examination, he testified to the effect that Mahler should have been able to stop the truck prior to striking the car if after discovering the stopped car he kept pumping the brake with his foot.

Thus all of the testimony concerning the brakes disclosed that they were working before and after the accident, and that no repairs were necessary. There can be no inference drawn that they were defective other than that they may have required “pumping”. Mahler was unwilling to state that any condition of his brakes, as distinguished from his foot slipping off, caused the occurrence. There was no testimony, above the grade of a scintilla, that any condition of the brake caused or contributed to cause the accident. Mahler’s testimony, giving it its most extended inferential value, does not constitute more than an equal inference that his foot slipped off the brake. Dallas Railway & Terminal Co. v. Jarvis, 153 Tex. 384, 270 S.W.2d 205.

In Hoey v. Solt, Tex.Civ.App., 236 S.W.2d 244, a rear end collision suit, the appellate court, concluding that defendant was guilty of negligence as a matter of law, reversed the trial court's judgment for defendant on a jury verdict, and rendered for plaintiff, and said:

“It can not be gainsaid that one who fails to stop his automobile in response to a traffic signal, but propels the same into the rear end of an automobile which has stopped in obedience to the signal, is guilty of negligence proximately causing injury or damage unless such conduct is excused by some extenuating circumstance or condition.”

This court has recently had occasion to write rather extensively in a rear end collision case in Meinen v. Mercer, Tex.Civ.App., 390 S.W.2d 36, writ ref. n. r. e. The judgment of the trial court for the defendant was reversed, and judgment was rendered for the plaintiff and damages assessed by the jury. Many authorities controlling the issues here involved are cited and discussed in Justice Sharpe’s opinion. Without quotation or further discussion of authorities, we refer to what this court said in Meinen v. Mercer, and to Justice Norvell’s opinion (Tex.Civ.App.) in Hoey v. Solt, supra, and hold that there are no extenuating circumstances or conditions shown to excuse Mahler’s propelling his truck into the rear end of appellee’s car, properly stopped in response to a traffic signal, and that Mahler was guilty of negligence as a matter of law in failing to make proper application of his brakes and that such negligence was a proximate cause of the collision.

Otherwise, and if the evidence were sufficient to require a jury issue of negligence and proximate cause of Mahler on the occasion in question, we are of the opinion that the trial court erred in submitting the case to the jury on the liability issue of proper control over appellant’s objection, and would reverse and remand the cause. Kainer v. Walker, Tex.Sup.Ct., 377 S.W.2d 613, and Barclay v. C. C. Pitts Sand and Gravel Co., Tex.Sup.Ct., 387 S.W.2d 644. In view of the statement of the Supreme Court on rehearing in Kainer v. Walker, the objection to the special issue made by appellant in the trial court that the submission of the issue of failure of control * * * constitutes a general charge was sufficient to apprise the court of the nature of appellant’s objection, and the court committed error in overruling same.

However, in view of our holding that negligence of appellant’s driver, and proximate cause, was established as a matter of law, such error becomes immaterial, and is not reversible; and we shall proceed to determine the remaining points raised on this appeal.

Appellant’s Second and Third Points allege error in the trial court’s sustaining appellee’s motion to preclude appellant from offering testimony of jurors on alleged misconduct, and in refusing to hear such testimony on the hearing of the motion for new trial. In this respect, appellant’s motion for a new trial alleged that the court erred in entering judgment on the verdict for the reason that (1) the jury by mistake incorrectly computed the answer which they intended to make to Special Issue No. 5, (the damage issue); (2) the jury did not take into consideration in arriving at the amount of damages that all future damages were to be based upon their present value in cash; (3) the jury did not take into consideration the pre-existing disability from which the plaintiff was suffering at the time of the collision made the basis of the suit; (4) the jury did not take into consideration in answering Special Issue No. 6 (the medical expense issue) that all future damages were to be based upon their present value in cash; (5) appellant further alleged that each of the assignments relating to the matters occurring during the deliberations of the jury is supported by the affidavit of the foreman, Charles I. Ottis, attached to and made a part of the motion.

The affidavit of Ottis, so far as here material, contained the following statements :

“The elements in issue #5 were determined as follows:
(1) Loss of income for the time before trial was figured at $42.00 a week for 60 weeks, or $2520.00.
(2) Pain and suffering for this same period at $5.00 a day for 60 weeks, or $2,100.00.
(3) Mental anguish for this same period at $5.00 a day, or $2,100.00.
(4) Future loss because of the Plaintiff’s diminished capacity to work was figured at $42.00 a week for the Plaintiff’s life expectance of 18 years of $39,312.00. ;
(5) Future pain and suffering was figured at $5.00 a day for 6 months or 183 days or $915.00.
(6) Future mental anguish was figured at $5.00 for 6 months or 183 days or $915.00.
This sum totaled $47,862.00 which was our answer to Special Issue No. 5. The method of computing each of the elements as outlined above was discussed and agreed upon by all of the members of the Jury. $42.00 a week was used because of the testimony that this was the wage for a farm laborer.
In answer to the last issue or Special Issue No. 6, as to future medical expenses, we allowed $5.00 each for 2 physical therapy treatments a week for 10 years or 520 weeks; our answer to this issue was $5,200.00 * *

Appellee’s “Motion to Preclude Defendant from offering Testimony from the Jurors” stated in effect that appellant had not alleged any jury misconduct; that the allegations in appellee’s motion involved only questions of the mental processes of the jurors, and that:

“Defendant has not alleged that it is entitled to a new trial because of jury’s deliberations, but simply alleges that the Court committed error in entering judgment because of the deliberations of the jury, and nothing pertaining to the jury’s deliberations was called to the Court’s attention at the time judgment was entered.”

The court sustained appellee’s motion to preclude, and refused to permit appellant to present testimony of jurors tendered by appellant in support of the motion for new trial, but permitted a record to be made of offered evidence of jurors Ottis and Harrison for the purpose of perfecting a bill of exception. This testimony supported, in the main, the affidavit of juror Ottis.

It will be noted that appellant’s complaint in his motion for new trial was that the Court erred in entering judgment on the verdict. The verdict was regular on its face, and supported by competent evidence. No motion for judgment notwithstanding the verdict, or to disregard any particular finding of the jury, was filed by appellant prior to the entry of the judgment. Thus, the trial court had no alternative but to enter the judgment, and any subsequent claims of jury misconduct could not affect the duty of the court to have entered judgment in the first place.

In a jury case, proper assignments of error in a motion for new trial are a necessary condition to the right of complaint on appeal. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887; Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407.

In the case of McDonald v. New York Central Mutual Fire Ins. Co., Tex.Sup.Ct., 380 S.W.2d 545, it was expressly held that an assignment of error based on a similar ground in appellant’s motion foy new trial complaining with respect to the entry of judgment does not reach a complaint which would require granting a new trial as distinguished from the entry of the judgment itself. In this connection the court said:

“However, the insured does not raise in the Court of Civil Appeals the point of ‘insufficient evidence’ to support the jury findings or the point that the findings are against ‘the great weight and preponderance’ of the credible evidence. Its points are premised on the proposition that the Court erred in entering judgment on the jury’s verdict and correspond to the grounds appearing in its amended motion for new trial. The points are in the following form:
‘The Court erred in overruling defendant’s motions for instructed verdict and judgment n. o. v. and in entering judgment on the jury’s verdict because there was insufficient evidence that the damage to plaintiff’s beach house was covered by the policy sued upon in that there was insufficient evidence that the damage was caused by the wind and insufficient evidence that it was not caused by water or the concurring action of wind with rising water and wind driven water.’
The points do not seek relief from the jury findings on the ground that they are not supported by sufficient evidence or that they are against the great weight of the evidence, but relate only to the type of judgment that the Court entered. They are not applicable to the granting of a new trial after the entry of a judgment.”

Upon the authority of the above quoted decision of the Supreme Court, we hold that the assignments contained in appellant’s motion for a new trial to the effect that the court erred in entering judgment on the verdict because of alleged jury misconduct were not applicable to the granting of a new trial after the entry of judgment.

Furthermore, the allegations of alleged jury misconduct, together with the statements contained in the attached affidavit, are inadequate to show misconduct of the jury requiring reversal under Rule 327, Texas Rules of Civil Procedure. Where a motion for new trial alleges and the attached affidavit of a juror shows, material overt acts of jury misconduct, the trial court is required to hear testimony thereof. Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644; Allan v. Materials Transportation Co., Tex.Civ.App., 372 S.W.2d 744. The requirement that the allegations be specific as to the type of alleged jury misconduct is for the “manifest purpose * * * to afford assurance to the court that the complainant would probably be able to support his allegations by proof.” Robertson v. Humble Oil & Refining Co., Tex.Civ.App., 116 S.W.2d 820, writ dis., cited with approval by the Supreme Court in the Murphy case, supra.

The amount by which a jury discounts the present value of their award is peculiarly within their province, and they are not bound by life expectancy tables. Texas Consolidated Transportation Co. v. Eubanks, Tex.Civ.App., 340 S.W.2d 830 (writ ref. n.r. e.); Texas & New Orleans R. Co. v. Flowers, Tex.Civ.App., 336 S.W.2d 907.

Furthermore, the type of evidence offered by appellant as demonstrated by the affidavit attached to its motion, and as tendered in its bill of exceptions, does not constitute overt acts of material misconduct, but at best shows possible misconstructions of the charge of the court, or the jurors’ own interpretation of evidence before them. This does not show reversible error on the trial court’s part in refusing to hear such evidence. Compton v. Henrie, Tex.Sup.Ct., 364 S.W.2d 179; Glazer v. Woodward, Tex.Civ.App., 127 S.W.2d 938.

Appellant’s Second and Third Points are overruled.

Appellant’s Fourth Point, to the effect that the court erred in permitting appellee to testify, over objection, that he paid his entire income from his 1963 crop to the Commodity Credit Corporation at El Campo, and was still $3500.00 in debt, is overruled. Even if the evidence were subject to the objection made and overruled, and we feel that it was not, reversible error was not shown, since practically the identical testimony had already been given by appellee without objection. New Hampshire Fire Insurance Co. v. Plainsman Elevators, Inc., Tex.Civ.App., 371 S.W.2d 68, writ ref. n. r. e.; City of Gladewater v. Dillard, Tex.Civ.App., 312 S.W.2d 530.

Appellant’s Fifth and Sixth Points allege error in the court’s refusal to allow appellant to cross examine appellee with reference to a fight he had in 1951, thirteen years prior to the trial, in which he had been hit on the head with a hoe, and required stitches to remedy the cut. There was nothing in the offered testimony to indicate any continuing effects of this 13 year old fracas. No reversible error is shown by these points.

The court did not err in sustaining appellee’s objection to proffered testimony of the conviction of appellee for aggravated assault in July, 1945, as claimed by appellant in its seventh point. Too remote for one reason. United Benefit Fire Insurance Co. v. Stock, Tex.Civ.App., 344 S.W.2d 941; Transport Insurance Co. v. Cossaboon, Tex.Civ.App., 291 S.W.2d 746, writ ref. n. r. e.

Appellant’s Eighth Point claims error in the instruction of the trial court to the jury, in connection with the damage issue, that it might consider loss of income, if any, sustained by appellee from the date of the injuries to the date of trial over appellant’s objection of no evidence of any such loss.

Appellee was a farmer, engaged principally in growing cotton and rice on his own land. Due to the inherent nature of such occupation, he perhaps did not show with that degree of exactness the precise period of time in which his services were lost to the farming operation, or the exact value thereof. The evidence was extensive as to the nature and extent of his injuries, the assistance he required following his accident, the employment, both paid and otherwise, of the help, and the deterioration and non-improvement of his health.

The fact that he made better crops in 1963 than in 1962, and received more income from his land, does not establish that his profits would not have been more but for his injuries. There was competent evidence from which the jury could have well believed that his injuries had contributed to loss of productive income from his farming operations. Hodges v. Plasky, Tex.Civ.App., 300 S.W.2d 955, writ ref. n. r. e. Appellant’s Eighth Point is overruled.

Appellant’s Ninth, Tenth, and Eleventh Points read as follows:

“NINTH POINT
“It was error for the Trial Court not to set aside its judgment and grant a new trial for the reason that the verdict of the jury was grossly excessive.
“TENTH POINT
“It was error for the Trial Court not to set aside its judgment and grant a new trial for the reason that there is no evidence to support the verdict of the jury.
“ELEVENTH POINT
“It was error for the Trial Court not to set aside its judgment and grant a new trial for the reason that there was insufficient evidence to support the verdict of the jury.”

The Tenth and Eleventh Points are entirely too general and are without merit. The court submitted six special issues to the jury, and we are at a loss to determine whether such points are directed at the entire verdict or at the answer to any certain issue, and if the latter, which issue.

However, under Point Nine, we shall consider the proposition of whether, under all of the evidence, the answer of the jury to Special Issue No. 5, the damage issue, was grossly excessive. It is clear that a Court of Civil Appeals does not have the power to grant a new trial because of excessiveness of a verdict, except as a condition of the acceptance of a remittitur. Rule 440, T.R.C.P.; Carter v. Texarkana Bus Co., 156 Tex. 285, 295 S.W.2d 653.

The jury awarded the sum of $47,862.00 as damages for past loss of income and future diminished capacity to work and perform services, past physical pain and suffering and such pain and suffering as will in reasonable probability be sustained in the future, and past mental anguish and mental anguish as will in reasonable probability be sustained in the future.

The rule is well established that on an appeal involving a point of excessive award, the evidence is to be viewed most favorably to the award, and that the courts should not substitute their judgment for that of the jurors in the absence of a rather clear indication of passion, bias or prejudice. Texas Consolidated Transportation Co. v. Eubanks, Tex.Civ.App., 340 S.W.2d 830, writ ref. n. r. e.; Missouri Pacific Railroad Co v. Ramirez, Tex.Civ.App., 326 S.W.2d 50, writ ref. n. r. e.; Green v. Rudsenske, Tex.Civ.App., 320 S.W.2d 228. We have closely examined the evidence, and conclude that the evidence is sufficient to support the verdict, and that the amount of the award is not shown to be grossly excessive as contended by appellant.

At the time of the accident, appellee lacked about three months of being 58 years old, with a life expectancy, according to standard mortality tables, of between 17 and 18 years. He farmed his own land of approximately 300 acres, principally in cotton and rice. Before the accident, according to his wife whose testimony was supported by neighbor farmers, he was a hard worker, who regularly labored in the fields with heavy farm machinery from before daylight until dark. She testified that since the accident, due to damage to his neck, he has not been able to do much work at all, gets very little rest at night, sometimes due to pain and discomfort getting out of bed and sitting in a chair all night, and has complained of constant pain. Appellee testified much to the same effect, including the fact of loss of appetite, and the necessity of taking tranquilizers for rest and easing of pain.

In the accident, his neck received a bad jolt. After trying to get along in bed for three days at his home, he was sent to the hospital for traction and treatment due to severe pain in his neck and head, where he spent nine days. In July he spent further time in the hospital under orders of Dr. Schulz, his family doctor. In the fall of 1963, the doctor gave him therapy treatment as an out patient at the hospital.

Medical testimony was given as to the extent and nature of the damage to ap-pellee’s neck muscles caused by trauma as the result of the accident, and of aggravation and acceleration of an arthritic condition in the neck due to this trauma, and medical opinions were expressed that such damage was permanent, and would probably worsen rather than improve, and that ap-pellee’s pain and suffering therefrom would be permanent; medical opinions also were that he would need traction and diathermy treatment for the remainder of his life. Appellant offered no medical witnesses, although at its request before trial appellee submitted himself to thorough medical examination by a doctor of appellant’s choosing. Lay witnesses testified as to the difference in appellee’s appearance and ability to do farm work before and after the accident. Appellee testified that he had been forced to rent out on shares his cotton planting allotment because he could no longer perform the work necessary, and that he was unable to do the difficult labor necessary in farming rice so that he had to have others do work which he had previously performed. He said that his neck was in such bad shape that he cannot turn his head to see where he is dragging his equipment, and has damaged some of it as a result.

The testimony showed that appellee had paid for his 303 acre farm, together with valuable improvements and farm equipments, from his earnings on the farm, mostly as the result of his own hard labor. The jury were justified in concluding from the evidence that much of his profitable earning capacity was lost as a result of the accident. He has had to hire help at much expense, and this necessity will probably continue so long as he farms his land. Much other evidence is in the record concerning loss of earning capacity which will probably cause financial loss in the future.

In view of the evidence, we hold that appellant has not shown that the jury was actuated by passion, bias or prejudice or that the verdict in assessing the amount of damages was grossly excessive, and his point of error is overruled.

Judgment affirmed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    Jim PARKS, Appellant, v. The BENSON CO., BUILDERS, et al., Appellees.
    No. 16636.
    Court of Civil Appeals of Texas. Port Worth.
    July 16, 1965.
    Rehearing Denied Sept. 17, 1965.

      Bill Atkins, Arlington, for appellant.
    Urban, Coolidge & Pennington, Houston, Cantey, Hanger, Gooch, Cravens & Scarborough, John McBryde and Estil Vance, Jr., Fort Worth, for appellees.
   MASSEY, Chief Justice.

In this case the material defendant was a cross-plaintiff. Neither he nor the plaintiff was satisfied. All parties appealed.

Jim Parks, plaintiff below, was a paint sub-contractor. The defendant Benson Company, Builders, was a general contractor; Student Housing, Inc., also a defendant, was the owner for whom Benson Company erected a building. The Benson Company, hereinafter termed as defendant, had a contract to erect a dormitory in Arlington, Tarrant County, Texas. This defendant entered into a contract with plaintiff to do the painting necessary on the dormitory. The agreed consideration therefor was $22,643.00. Plaintiff’s agreement was to paint the building exterior with two coats of paint and the interior with one coat, save columns in the interior which were to be given two coats. There were other obligations of the plaintiff which we may disregard.

Plaintiff engaged labor and purchased materials and proceeded. The defendant’s general superintendent was a Mr. Bob Bales.

On or about April 17, 1963 plaintiff billed the defendant on the basis of a 90% job completion (as applied to the $22,643.-00 contract), for which he was then entitled to be paid 90% (of said total amount) less a 10% “retainer” — according to his understanding of the agreement. This meant that he billed the defendant for $20,378.70, less “retainer” of $2,037.87, or a total amount due of $18,340.83 with expectation he would be paid the last stated figure. Bob Bales understood that such was the agreement, for he “okeyed” the bill upon satisfying himself (as defendant’s superintendent) that plaintiff had actually performed his contract to the extent of a 90% completion.

The defendant felt it wise to pay only 75%, or $16,982.00. This was the amount paid. Additional contracts were entered into between Bales, acting for defendant, and the plaintiff. Of these there were three, the first in the amount of $250.00, the second in the amount of $1,234.80, and thi third in the amount of $143.00. In addition plaintiff delivered 18 cans of paint to the defendant, at a charge of $29.70.

This resulted in a total amount claimed by the plaintiff of $24,300.50, less the amount of $16,982.00 paid thereon, with a balance claimed of $7,318.50. (Under a jury finding that $250.00 was the amount remaining to be expended to complete the contract by plaintiff at time his work ceased, the amount of plaintiff’s judgment was $7,068.50.)

As performance under the contract neared completion some inspectors for the defendant looked over plaintiff’s work. A dispute arose at the time, in that the inspectors contended that plaintiff was obligated to paint the interior walls of the dormitory with two coats of paint. Seemingly, the dispute was resolved upon proof by plaintiff that his bid was on the basis of only one coat. When the “acceptance” of defendant came from Houston (through its superintendent, Bales) it had a provision for two coats. Pursuant to a long distance telephone conversation between Bales and an authorized official in the defendant’s home office the signed instrument had been changed in ink to show only one coat. A meeting of the minds of the parties did not take place until this was done.

During course of the trial, a part of the defendant’s theory of defense to the plaintiff’s suit was that there had been a failure on the part of plaintiff to paint the interior with two coats of paint. Defendant so plead. The proof utterly destroyed the defense.

At a time when, according to plaintiff, his performance under the original contract was more than 95% Completed, Bales was removed as superintendent. In his place defendant employed p. Mr. Cone. About the time Cone became superintendent, inspectors for defendant visited the “job site” and a disagreement between them and the plaintiff occurred in that they pointed out certain work they desired to be done. They were obviously of the opinion that plaintiff would either treat it as work falling within the contractual provisions, or would supply it at no cost as an accommodation. Plaintiff insisted it was not covered by the contract. If performed by him, he made it known that an additional payment would be demanded. The agents for the defendant were most unhappy. They returned to the home office where they discussed plaintiff’s work in general. They agreed between themselves that it was unsatisfactory. They informed the new superintendent, Cone. Apparently Cone allowed plaintiff to work two or three days thereafter, but then confronted him with the defendant’s dissatisfaction. Part of the discussion concerned plaintiff’s refusal to put a second coat of paint on the interior of the dormitory. In any event, pursuant to this discussion and under authority conferred by his principal, Cone offered to “buy” the balance of plaintiff’s contract for $4,000.00. Had plaintiff agreed to make such a deal he would have received $3,318.-50 less than he claimed under the primary contract plus the three subsidiary transactions and the price charged for the 18 cans of paint. On trial plaintiff claimed that at the time of the aforesaid discussion his work was at least 98% completed, but that Cone refused any further performance of the contract and “terminated” his work in all respects.

Whether the discussion about the $4,-000.00 “purchase” of the remainder of plaintiff’s contract amounted to an offer in compromise by the defendant is a matter of dispute between the parties. Plaintiff contends that it was not, while defendant claims that it was. There is no question but that the trial court agreed with the defendant, for he ordered that testimony thereupon be excluded from the jury. The court granted the defendant’s motion in limine when the offer of evidence was made outside the presence of the jury— from the lips of plaintiff. Then, after the jury was brought in and trial proceeded, the plaintiff — voluntarily and not in response to any question — testified that when he left the job the defendant “offered me $4,000.-00”.

When this occurred — on cross-examination — the attorney for the defendant continued with a few questions which he hoped would minimize the harm he believed had been caused, but at the earliest reasonable opportunity brought the matter before the court. He moved for a mistrial — not only because of the error, but because the plaintiff had committed intentional error in violating the court’s order sustaining defendant’s motion in limine. The plaintiff was questioned. He stated that he did not understand that the court had directed that he not testify about the offer of Cone. Holding its ruling in abeyance the court proceeded, though indicating to defendant’s counsel his willingness to instruct the jury to disregard the improper testimony. Counsel decided that to so instruct the jury would likely do even further damage to the defendant’s case — and declined to move for such instruction. Ultimately' the court overruled the motion for mistrial.

The jury#returned a verdict for the plaintiff. In its motion for new trial defendant assigned the reception by the jury of Cone’s offer in compromise as reversible error. No affidavit of any juror was attached to defendant’s motion. The plaintiff countered with an opposing motion. Thereto he attached, as an exhibit, a statement of one of the jurors to the effect that the juror did not recall that there was any testimony concerning an offer of compromise or settlement and that during the deliberations of the jury no mention was made of any party having made an offer of this character.

Defendant’s motion for new trial was heard and overruled. It does not appear that there was any tender of testimony at the hearing. In other words, if the defendant knew of any evidence which might have been presented, from which the court might find or conclude that the information erroneously imparted to the jury about the defendant’s offer of compromise probably did cause it to return a verdict other than that it would have returned had the information not been so imparted, there was an election not to offer such and not to explain why it was not offered.

It is well settled that evidence which will show an offer in compromise upon the liability at issue between the parties is improper and inadmissible evidence. However, admitting that in a proper case an exception might apply, the error is usually curable and may be remedied by an instruction from the trial court to disregard it as evidence. Bituminous Casualty Corporation v. Jackson, 360 S.W.2d 900 (Beaumont Civ.App., 1962, writ, ref., N.R.E.); cases in 16 Tex.Digest, “Offers of compromise or settlement. — In general.”; McCormick & Ray, Texas Law of Evidence, 2nd Ed., p. 29, “Admissions of a Party”, § 1142, “Offers of Compromise — (a) Civil Cases”.

Furthermore, “reversibility” because of such an error, as in other cases of erroneous admission of evidence, depends upon judicial decision made in light of Texas Rules of Civil Procedure, rules 434 and 503. In other words a reversal of the judgment in the case will not be required unless it appears from a consideration of the record as a whole that its admission was reasonably calculated to cause and probably did cause the rendition of an improper verdict. Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952); Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955); 4 Tex.Jur.2d p. 566, et seq., “Appeal and Error — Civil”, § 941, “Evidence rulings”.

In the instant case we believe that the error was reasonably calculated to cause the rendition of an improper verdict in that a juror of ordinary intelligence might thereby be persuaded to render a verdict other than that which he would have rendered but for the reception of the erroneous testimony. Even so, when we view the whole record as a whole we are not prepared to find that the reception of said testimony probably did cause the jury to render a verdict which it would not otherwise have returned. In so stating we do not disregard the fact that the defendant was apparently unprepared to show at the hearing of its motion for new trial that the jury did discuss the fact that an offer in compromise had been made.

From the whole record we are conscious of the fact that defendant appeared in an unfavorable light from the time it changed the written offer of the plaintiff in making his bid from a provision for one coat of inside paint to two coats; then, though there was evidence that it authorized its superintendent, Bales, to correct the contract in order that plaintiff would sign it, defendant went to trial with its defense predicated, in part at least, upon the failure of plaintiff to paint the inside of the dormitory with two coats of paint. Afterward, defendant remitted 75% of the amount of the contract for work done, though the evidence showed that both plaintiff and superintendent Bales expected that 90% of said amount would be paid at such time. Finally, there was evidence that after the decision was made by the defendant company to “terminate” plaintiff’s work and secure another paint contractor or to perform the necessary additional work with its own employees, plaintiff was allowed to work a few more days before there was an actual “termination.” Hence, with the record viewed in its entirety and reversibility of the error, tested under the provisions of T.R.C.P. 434 and 503 we have concluded that we should overrule defendant’s point of error.

Other of defendant’s points of error are based upon its contention that findings of the jury were against the great weight and preponderance of the evidence. We have reviewed the whole record. We do not believe that any of the findings of which complaint is made were against the great weight and preponderance of the evidence. We see no occasion for an extended discussion. Generally, the findings relate to the adequacy of plaintiff’s work, authority of defendant’s superintendent to bind it to pay for paint work admittedly necessary to be performed, and the cost to complete the work which plaintiff left unperformed because he was “terminated”.

The plaintiff has two points of error. By one he contends that the court erred in refusing to award attorney’s fees in addition to that he received by the judgment. The parties in the case stipulated the amount of reasonable attorney’s fees in the event they were proper to be awarded, but were in disagreement upon the propriety of such an award. By the other point of error plaintiff contends that interest upon the amount of his recovery should have dated from a time prior to that of the judgment.

We overrule both of plaintiff’s points of error.

On the matter of attorney’s fees: Plaintiff did not contract to perform any labor himself. The labor performed was furnished pursuant to contract, by employees of plaintiff. The materials furnished by the plaintiff was pursuant to the performance of the labor necessary to incorporate said materials into the building as part of the work contracted. The parties are not in disagreement that plaintiff’s contract was “terminated” without his being allowed to finish it according to his conception of the term. Defendant, of course, contends that plaintiff’s performance was materially unperformed.

As stated by the trial court in its opinion the case is nothing more nor less than one for breach of contract for a painting job. The claim, essentially, is one based on a special contract which covered both the supplying of labor and material, and one in which attorney’s fees are not recoverable. (We feel that the very insignificant part of the case represented by the charge for 18 cans of paint may be disregarded.) Vernon’s Ann.Tex.Civ.St. Art. 2226, “Attorney’s fees”, is penal in nature and should be strictly construed. Davenport v. Harry Payne Motors, 256 S.W.2d 245 (Austin Civ.App.1953, no writ).

As was pointed out in Kirkwood & Morgan, Inc. v. Roach, 360 S.W.2d 173, 177 (San Antonio Civ.App.1962, writ ref. N.R.E.), “It is true that appellee performed some labor in dumping and spreading the sand which was furnished by appellant. However, this suit was for damages for breach of contract and not for labor done. Hicks v. Smith, Tex.Civ.App., 330 S.W.2d 641. The award for attorney’s fees was not proper in this case. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75.” See also Ford Motor Company v. Davis Brothers, Inc., 369 S.W.2d 664, 668 (Eastland Civ.App.1963, no writ.), a case of similarity to the instant case, in which the court held that the plaintiff’s cause of action was based upon special contract and did not come under the provisions of Art. 2226.

In view of what we have said, hereinabove, bearing upon the nature of the case as one for damages for breach of contract, it follows that the trial court properly awarded interest from the date of the judgment. The amount due plaintiff was not ascertainable by the contract of the parties, but was dependent upori extraneous proof.

Judgment is affirmed.


author: MOORE, Justice.

text:
    M. J. DELANEY COMPANY, Appellant, v. John W. MURCHISON, Appellee.
    No. 149.
    Court of Civil Appeals of Texas. Tyler.
    July 15, 1965.
    Rehearing Denied Sept. 16, 1965.
    Jack Pew, Jr., Jackson, Walker, Win-stead, Cantwell & Miller, Dallas, William H. Kugle, Athens, for appellant.
    W. B. Fields, Fields & Fields, Jack T. Life, Life, Bolding & Key, Athens, for ap-pellee.
   MOORE, Justice.

Appellant, M. J. Delaney Company, a r J Partnership, hereinafter referred to as the company, brought this suit against appel-^ee> J°hn W. Murchison, to recover $27,-372.00 under a contract with Murchison for the drilling of an oil well known as the Robinson well. Prior to the drilling of the well, the company wrote Murchison as follows :

“Dear Mr. Murchison:
“This confirms the arrangement, verbally made, by which we are to drill your #1 Robinson Well, Frankston Area, East Texas, to the James Lime encountered at or above. 10,000 feet.
“We have previously completed two wells in this immediate area for you —#1-A Eva Hurt, #-B Eva Hurt.
“The stipulations, responsibilities, billings and payments on this well will be the same as those on the two completed wells above mentioned.
“We each assume to each other, the same obligations granted in performing on these wells.
“If you understand this as our agreement will you please accept in the place below provided therefor and return two signed copies for our use.
“With kindest regards, we are
“Yours very truly,
“M. J. DELANEY CO.
“/s/ Wm. D. McBee
“Wm. D. McBee”

Murchison accepted the same and sent it back to the company.

After the well had been drilled to the contract depth of 10,004 feet, it appeared that it would produce oil and Murchison then instructed the company to set the pipe in the well. While the drilling crew was circulating the drill pipe, preparatory to setting the pipe, the company’s driller, W. A. Holder, stopped the rotary while the Kelly was down and at a time when the bit was at or near the bottom of the hole. As a result, the drill pipe became stuck in the hole.

As will be hereinafter shown, the jury found that the company’s driller was negligent in stopping the rotary and that such negligence was a proximate cause of the pipe becoming stuck. After considerable time and expense, the company succeeded in unsticking the pipe and later brought the well in as a producing oil well.

The company immediately billed Murchison for the sum of $49,519.80 covering the contract price of $4.95 per foot for the drilling of the well to the 10,004 foot level. He was not billed at that time for the expense of unsticking the pipe; however, the bill contained a notation reading as follows:

“Day work and third party service charges will be rendered separately at a later date.”

Murchison paid the bill and it was not until several months later that he was billed for an additional amount of $20,927.80 covering the expense for unsticking the pipe and also for the sum of $6,444.20 covering the additional expense in connection with bringing in the well after the pipe was un-struck, totaling $27,372.00. He refused to pay the bill and the company brought suit alleging a breach of contract and in the alternative for quantum meruit. At the time of the trial Murchison admitted that he owed the $6,444.20 for the expense of bringing in the well and deposited that amount into the Registry of the Court. He refused to pay the remaining $20,927.80 which represented the expense in unsticking the pipe. The primary question involved is whether Murchison or the company is to stand the loss in unsticking the pipe.

The company bases its claim upon the above letter agreement providing that the Robinson well was to be drilled under the same stipulations, responsibilities and obligations as the Hurt wells, and contends that since the Hurt wells were drilled under a written contract providing that Murchison would “8. Assume all risks after the well had been drilled to the contract depth” he became bound by this and all other terms and conditions of the previous agreement and therefore assumed all risks including the risk of the company’s own negligence.

Murchison denied that he signed the contract or ever assented to the provisions thereof and therefore never agreed to assume the risk of the company’s negligence.

He also alleged that because Mr. McBee, a partner in the company, agreed to unstick the pipe and assume full responsibility and failed to notify him that it was his responsibility, the company was estopped to assert any claim against him.

The cause was tried before a jury and in response to the Special Issues submitted, the jury found:

(1) That Murchison and the company entered into an agreement respecting the drilling of the Eva Hurt wells;

(2) That the written contract dated May 16, 1961, prepared by the company and forwarded to Murchison correctly states the terns and conditions of the agreement in regard to the Eva Hurt wells;

(3) That Murchison received the contract prior to commencing either of the Eva Hurt wells;

(4) That Murchison permitted the company to commence work under the contract without notifying the company that he did not accept the contract;

(5) That Murchison never at any time prior to the completion of the Robinson wells objected to any of the terms of the contract ;

(6) That Murchison accepted the benefits of the company’s work done on the two wells;

(6a) That the work performed by the company on the Robinson well, which is the well in question, was performed in a good workmanlike manner;

(12) That W. D. McBee, a partner in the Delaney Company, told Murchison that the company would assume full responsibility for getting the pipe unstuck;

(13) That Murchison believed and relied upon such statement.

(13a) That but for such statement, Murchison would have taken charge of the operations and expenditures in getting the pipe unstuck;

(15) That the company’s driller, W. A. Holder, was negligent in stopping the rotary;

(16) That such negligence was a proximate cause of the pipe becoming stuck;

(19) That the company’s driller, Holder, was negligent in stopping the rotary with the bit at or near the bottom of the hole;

{20) That such was not the proximate cause of the pipe becoming stuck;

(21) That Holder was guilty of negligence in failing to keep the rotary drill pipe turning;

(22) That such was a proximate cause of the pipe becoming stuck;

(25) That the company, by the conduct of its partners and employees, after the pipe became stuck led Murchison to reasonably believe that the company had assumed full responsibility for getting their drill pipe unstuck;

(26) That Murchison relied upon this conduct and believed in good faith that the company would not hold him responsible for the cost of getting the pipe unstuck;

(27) That but for such conduct and his reliance thereon, Murchison would have taken charge of the drilling operations and expenditures in getting the pipe unstuck.

Prior to judgment appellant, M. J. Delaney Company, made a motion to disregard all jury findings made in favor of the appellee, which motion was overruled. Appellee Murchison made a motion to disregard the jury’s findings in Special Issues 1-6 and alternatively for judgment on the verdict. The court, without making any ruling upon appellee’s motion to disregard, rendered judgment on the verdict. The judgment awarded the appellant-company a recovery of only the sum of $6,444.-20 which appellee had previously paid into the Registry of the Court, and denied a recovery for the $20,927.80 in dispute.

The company duly perfected this appeal bringing forward fourteen Points of Error, which are all briefed together, contending that since the trial court rendered judgment on the entire verdict, the effect of the judgment amounts to an affirmative finding that Murchison had agreed to “assume all risks” in the performance of the contract. Therefore, the company contends that since it was undisputed that $20,927.80 was a reasonable charge for unsticking the pipe, it is entitled to judgment because under the findings of the jury, appellee is bound by the written contract which provided that he would assume all risks after total depth had been reached, unless appel-lee has a valid defense. Appellant thus contends that the agreement to “assume all risks” amounts to an indemnity contract agreeing to indemnify against its own negligence and that the only question is whether appellee’s defenses are valid — (1) whether appellee is excused from payment because of negligence in the work on the well which occurred after total depth had been reached, and (2) whether appellee produced evidence of a case of estoppel.

Appellee Murchison contends that the judgment exonerating him from liability must be sustained because: (1) there is no evidence that he ever signed or assented to the written contract prepared by McBee covering the Hurt wells; (2) there is no jury finding or evidence showing that he agreed to be bound by the same terms and conditions in the drilling of the Robinson well as the Hurt wells; and (3) even though it be found that he did agree to assume all risks in the' drilling of the Hurt wells, the language used in the letter agreement covering the Robinson wells is not sufficient to show that he agreed to assume the same stipulations, responsibilities and obligations as those in the drilling of the Hurt wells. In any event, he contends that an agreement to assume all risks would not bind him to assume the risk of the company’s own negligence.

In the absence of any ambiguity, the construction of the contract becomes a question of law for the determination of the trial court. Tower Contracting Co. v. Flores, 157 Tex. 297, 302 S.W.2d 396.

“The cardinal rule to be observed in the construction of contract is to ascertain and give effect, whenever possible, to the real intention of the parties, as that intention is revealed by the language used in the agreement. * * *” 13 Tex.Jur.2d, Par. 122, page 287.

It is undisputed that Murchison never signed the written contract dated May 16, 1961, relating to the Hurt wells. The jury found, however, that the instrument correctly stated the terms and conditions of their agreement in the drilling of those wells.

The company takes the position that the letter agreement covering the Robinson well clearly indicates that it was the intention of the parties to incorporate and adopt all of the provisions of the written agreement relating to the drilling of the Hurt wells. Murchison takes the position that the letter agreement fails to indicate any intention to adopt the terms of the previous contract. If the letter agreement is to be construed as having adopted and incorporated the terms and provisions of the contract relating to the Hurt wells, Murchison must be held to have agreed to assume all risks after the Robinson well had been drilled to contract depth. If, on the other hand, the letter agreement failed to adopt the previous contract, Murchison would not be liable for the negligence of the company on the Robinson well, because there is nothing in the letter agreement or the evidence showing that he agreed to assume any risk in the drilling of the Robinson well.

“ * * * For the terms of another document to be incorporated into the document executed by the parties, the reference must be clear and unequivocal, and must be called to the attention of the other party, he must consent thereto, * * 17A C.J.S. Contracts § 299, page 136.

In the case of Newton v. Smith Motors, Inc., 122 Vt. 409, 175 A.2d 514, 516, the rule is stated as follows:

“[T]he extrinsic writing must be connected by specific reference or by such mutual knowledge or understanding on the part of both parties that reference by implication is clear. If the secondary instrument was not mentioned in the undertaking and was foreign to the minds of the parties at the time of their undertaking, it is clearly irrelevant as an aid to interpretation.”

An examination of the letter contract will show that the letter nowhere refers to a previous “contract” or “written agreement” nor does it make any reference to the contract which was prepared by Mc-Bee or refers to the date thereof. In making reference to the “same obligations” it does not say whether those obligations were oral or written, or were both oral and written. The previous contract was a lengthy instrument containing numerous provisions. Murchison admitted having received same. McBee twice requested Murchison to sign and return same, but he failed to do so. Although the jury found that the Hurt wells were drilled under the terms and provisions of this instrument, it was not shown whether or not there were additional oral or written agreements and obligations involved in the drilling of those wells. In pursuit of our inquiry as to whether the parties intended to adopt the provisions of the previous contract, a logical inquiry would be: If the parties intended that the previous contract was to become a part of the present contract, why did the parties omit any reference to the written contract? It would have been a simple matter to have made some reference thereto. The absence to any specific reference to such a well-known instrument strongly indicates that the parties did not intend to contract with reference thereto. Construing the letter as written, we think it obvious that the parties did not have any intention of becoming bound by all of the terms and conditions of the previous written agreement, because nothing is said to indicate they intended that instrument to become a part of the letter contract.

The question of whether a later contract is to be deemed as an independent one or to become incorporated with or correlated to the old agreement is to be determined by the intention of the parties as expressed in the later agreement. Frierson v. International Agricultural Corp., 24 Tenn.App. 616, 148 S.W.2d 27.

“ Tn order that separate writings may be considered together their relation or connection with each other must appear on their face; and this requirement is satisfied either by express reference from one writing to the other, or, at least where each writing is signed, by internal evidence of their unity.’ ” Briden v. Osborne, 184 S.W.2d 860 (Tex.Civ.App.).

No issue was requested or submitted inquiring as to whether the parties intended to adopt the provisions of the written contract as a part of the contract for the drilling of the Robinson well. Therefore, there being nothing in the letter agreement showing Murchison assumed all risks and there being no findings that the parties intended to adopt or otherwise become bound by their previous agreement, there is no basis for contractual liability for reimbursement for the company’s loss caused by its own negligence in drilling the Robinson well.

The most that can be said for the company’s contention in this connection is that the evidence raised a question of fact as to the intention of the parties and having failed to request any issue as to the intention of the parties in this respect, the issues were waived and must be deemed to have been found in support of the judgment. Rule 279, Texas Rules of Civil Procedure; Government Personnel Mut. Life Ins. Co. v. Wear, 247 S.W.2d 284 (Tex.Civ.App.).

Even though we be mistaken in the above conclusion and even though we concede that Murchison did contract to assume all of the risks after the contract depth had been reached, we have nevertheless concluded that the wording of the agreement is not sufficiently definite and clear enough so as to embrace the obligation to indemnify the company for its own negligence and carelessness in the performance of its contractual obligation.

The rule to be followed in determining the question was recently set forth by the Supreme Court as follows:

“In Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775, this Court discussed the rule that an indemnity agreement will not protect the indem-nitee against the consequence of his own negligence unless the obligation is expressed in unequivocal terms. The obvious purpose of this rule is to prevent injustice. A contracting party should be upon fair notice that under his agreement and through no fault of his own, a large and ruinous award of damages may be assessed against him solely by reason of negligence attributable to the opposite contracting party. See, Perry v. Payne, 217 Pa. 252, 66 A. 553. Texas does not, however, follow the refinement of the rule which requires that the agreement, in order to effectually embrace the negligence of the indemnitee, should expressly so state. It was stated in Friedman that, ‘It is not necessary * * * for the parties to say in so many words that they intend to protect the indemnitee against liability for negligence.’ The rule is that when the wording of the contract is sufficiently broad to cover the negligence of the indemnitee and the situation of the parties with reference to the subject matter of the contract is such that it can clearly be said that the parties intended that the negligence of the indemnitee should be covered by the indemnity agreement, then liability thereunder will be sustained whenever the injury asserted as a basis for indemnity is one which arose out of the operations embraced by the contract.” Spence & Howe Construction Company v. Gulf Oil Corporation, 365 S.W.2d 631, (S.Ct.), 1963; Ohio Oil Company v. Smith, 365 S.W.2d 621, (S.Ct.).

In Friedman the court pointed out that the situation of the parties with reference to the subject matter of the contract is to-be accorded some consideration in determining whether the provisions of an indemnity contract clearly covers the negligence of the indemnitee. At the time the pipe became stuck, the work was being done in accordance with the instructions and under the direct supervision of the company. Both parties knew that the work required experienced personnel with some skill and ability and in this connection both parties will be presumed to have known that:

“* * * Accompanying every contract is a common-law duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a * * * breach of the contract. * * * ” 38 Am.Jur., Sec. 20, page 662; Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (S.Ct.).

An examination of the Texas cases construing contracts of indemnity will reveal that in all cases where the indemnitor was held liable for the indemnitee’s own negligence, the contract contained broad and comprehensive language showing the intent to assume such responsibility.

In Standard Ins. Co. of New York v. Ashland Oil & Refining Co., (10th Cir.) 186 F.2d 44, the question was whether a party who had agreed to assume the “risk” also assumed the risk of negligence. In holding to the contrary, the court quoted the following language from the Supreme Court of Oklahoma:

“ ‘We would not hold that a contract governing and exempting liability for future damages resulting from the negligence of the defendant might not he entered into, but it must be clear, definite, and unambiguous, and show on its face the exact nature, character and extent of the damages which are within the contemplation of the minds of the contracting parties, * * *’ ” Also see: Standard Oil Company of Texas v. Wampler, 218 F.2d 768 (5th Cir.); Thompson-Starrett Co., Inc. v. Otis Elevator Co., 271 N.Y. 36, 2 N.E. 2d 35; Otis Elevator Co. v. Maryland Casualty Co., 95 Colo. 99, 33 P.2d 974.

Considering the relationship of the parties and the work to be performed, we believe that it would be beyond reason to construe this provision of the contract so that it would mean that Murchison contracted to excuse the company from its own negligence. To hold that Murchison agreed to indemnify the company would be to say that by the company’s own contract — which must be construed against it as the maker — if its construction were allowed, Murchison paid to place himself at the mercy of, and subject to, the wanton carelessness of the company in the performance of its contract.

That the parties did not actually intend for Murchison to assume all the risks is demonstrated by the provisions of Paragraph V of the contract wherein it is provided :

“V. Contractor also agrees to:
“(n) Assume all liability, and indemnity of Well Owner against any liability for injuries and/or damages to Contractor’s employees or to any other person or property, incident to or resulting from the operations of Contractor hereunder; * * * ” (Emphasis supplied).

We therefore hold that the language used is not so clear, explicit and unambiguous as to compel the conclusion that the parties intended that the company would be relieved from the consequences of its own negligence.

In view of the rulings hereinabove made, holding that there was no liability under the contract, we will not undertake to make a lengthy discussion on the question of whether or not the evidence is sufficient to sustain the defense of estoppel. We will add only that we have examined the evidence and have found it to be sufficient to support the findings of the jury and the judgment based thereon and we are of the further opinion that same is not against the overwhelming weight and preponderance of the evidence.

The judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    Floyd J. PETRAY, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 7625.
    Court of Civil Appeals of Texas. Texarkana.
    July 20, 1965.
    Rehearing Denied Sept. 21, 1965.

      Wm. V. Brown, Jr., Texarkana, for appellant.
    Norman Russell, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellee.
   CHADICK, Chief Justice.

This is a workmen’s compensation case. The judgment of the trial court is reversed and the case is remanded for new trial.

The appellant, plaintiff in the trial court, Floyd J. Petray, sued appellee, defendant below, The Travelers Insurance Company, compensation insurer for his employer, International Creosoting & Construction Company. In the trial court when Petray had finished with the introduction of evidence a motion by the insurer for an instructed verdict in its favor was granted.

The appellee’s counterpoints and cross-point of error will serve to put the main issue of this appeal in clear perspective and for that purpose are quoted, to-wit:

(Counterpoints) “The trial court correctly granted Travelers’ motion for instructed verdict because:
(a) Petray’s petition failed to state a cause of action upon which recovery of workmen’s compensation benefits could be based. He did not allege and prove the receipt of an occupational disease within the meaning of Article 8306(20) V.A.T.S., instead he claims workmen’s compensation benefits for incapacity from Bronchitis (both chronic and asthmatic), Pulmonary Fibrosis, and Emphysema — none of these being among the occupational diseases appearing in the statute.
(b) Petray in the District Court claimed workmen’s compensation benefits based upon the effects of arsenic, benzol, and chlorine poisoning, but in his claim before the Industrial Accident Board he made no claim for benefits upon this basis. He cannot assert one claim before the Industrial Accident Board and another and different claim in the District Court.”
(Crosspoint) “Point 1: The trial court erred in overruling Travelers’ Special Exceptions No. 1 and No. 2, both being directed to Petray’s failure to allege facts upon which he could sustain a recovery for workmen’s compensation benefits as a result of having an occupational disease.”

Mr. Petray filed a “Notice of Injury from Occupational Disease and Claim for Compensation for Injury from Occupational Disease” with the Industrial Accident Board on a form furnished him by the Board. In answer to this question therein, “Nature of Occupational Disease and Cause of Disease”, Mr. Petray said, “My disease is Asthmatic Bronchitis, Pulmonary Fibrosis and Emphysema. I have choking spells and cannot breathe well. The cause is from breathing the dust and irritants in the mill where I work”. With reference to the notice provisions of Art. 8307, sec. 4a in Texas Employers’ Ins. Ass’n v. Bradshaw, 27 S.W.2d 314 (Ct.Civ.App.1930, writ ref.) it was said:

“* * * [T]he object of the provision of timely notice is to enable the insurer to make his own investigation of the facts upon which the employee grounds his claim for compensation. It seems equally obvious that in order to strictly comply with the statutory requirement the employee must, within the specified period, apprise the insurer of the time and nature of the accident as well as of the resulting injury.”

Very similar conclusions are expressed in Safety Casualty Company v. Brown, 229 F.2d 889; and Booth v. Texas Employers’ Ins. Ass’n, 132 Tex. 237, 123 S.W.2d 322, op. adpt. In the latter case Commissioner Smedley said:

“It has repeatedly been held that, although one claim cannot be filed with the board and another and different claim asserted in court, yet when the injury suffered is of that class of injuries, sometimes called general injuries, for which the compensation is based upon incapacity to work, and not of that class of injuries usually called specific injuries, for which the amount of compensation is fixed by the statute, a general description of the injury is sufficient in the claim made before the board, and that in the suit filed to set aside the award of the board the claim may be enlarged to include all injuries proximately. resulting from the accident. Hartford Accident & Insurance Co. v. Choate, 126 Tex. 368, 373, 89 S.W.2d 205; Texas Employers’ Insurance Association v. Knouff, Tex.Civ.App., 271 S.W. 633; Indemnity Ins. Company of North America v. Harris, Tex.Civ.App., 53 S.W.2d 631; Great American Indemnity Company v. Mc-Elyea, Tex.Civ.App., 57 S.W.2d 966. In each of the three cases last cited application for writ of error was refused.”

Occupational disease is not listed as one of the specific injuries enumerated in Art. 8306, Sec. 12, Vernon’s Ann.Tex.Civ.St., so such disease must be placed in the general injury grouping. The question of primary importance in this appeal is whether or not the Petray notice and claim as quoted above meets the legal test of Notice to the Board of an occupational disease compensable under the Workmen’s Compensation Law by giving a general description of the disease implicated. A question of this kind arising in an occupational disease case has not reached the appellate courts of Texas. The disposition of similar questions in general injury compensation cases, and the decisions of other jurisdiction in occupational disease cases, should be instructive and on examination should suggest the correct answer in this instance.

A workman’s notice to the Texas Industrial Accident Board that described his impairment “as injury to my spine and leg injury” was held sufficient, as a general description of injury, and in the appeal from the Board to a district court the workman was said to be entitled to plead and prove “injury to the sacroiliac joint” in Indemnity Ins. Company of North America v. Harris, 53 S.W.2d 631 (Tex.Civ.App.1932, no writ). This case was later cited as an authority in Hartford Accident & Indemnity Co. v. Choate, 126 Tex. 368, 89 S.W.2d 205 (opinion adopted). The compensation claimant in Texas Employers’ Insurance Ass’n v. Knouff, 271 S.W. 633 (Ct.Civ.App.l925, writ ref.) described her injury in her notice as “[dislocation of one kidney and badly jarred all over”. On appeal from the Board to the court her petition stated “that by reason of said fall her spine and the nerves and muscles connecting therewith were injured and bruised, and the nerves and muscles in the pelvic region and in her back were torn, bruised, lacerated, and strained”. The description in the Notice was held sufficient.

Texas Indemnity Ins. Co. v. Wilson, 281 S.W. 289 (Tex.Civ.App.1926, writ dism.) does not set out the description of the injury, the opinion saying the evidence in the trial court was meager as to the exact nature of the injury reported to the Industrial Accident Board, but the court said, “[I]t is evident it was the same claim, occurred at the same time, and grew out of the same accident, and on appeal to the courts appellee had the right to amplify and more fully develop his claim by pleading and evidence”. The nature of the injury reported to the Industrial Accident Board is “hernia, also pains in back and left side” in Texas Employers’ Ins. Ass’n v. Perry, 35 S.W.2d 1087 (Ct.Civ.App.1931, writ ref.). The insurance carrier in the district court moved to abate the workman’s action, except for the specific injury of hernia. The claimant was permitted to plead and prove, besides a hernia, that “his back and left side were wrenched and all bones, nerves, tissues”, etc., were torn and injured. The court held the notice sufficient and that the workman might amplify, as he did, and make more specific the injuries he described in the claim presented to the Board.

For what it may be worth, the attitude of other jurisdictions will be examined. An employee filed with Michigan’s Department of Labor and Industry an occupational disease law claim against the St. Johns Table Company. The claim stated the employee was suffering from “the disease known as toxic encephalitis”. Accompanying the Notice was a physician’s report that employee’s toxic encephalitis arose from poisoning by wood alcohol and by benzol, a derivative of benzine, or its sequelae. Toxic encephalitis is not listed as an occupational disease in the Michigan statute, but poisoning by benzol, etc., is so classified. The Supreme Court of Michigan in Nicholas v. St. Johns Table Company, 302 Mich. 503, 5 N.W.2d 442, held the notice to be sufficient. In another Michigan case, Krzewinski v. Robert Gage Coal Co., 304 Mich. 63, 7 N.W.2d 223, it is stated that niceties of expression are not required, all that is necessary is that the employer have notice that the employee claims to be disabled by an occupational disease.

The Workmen’s Compensation Act in Illinois provides that no proceedings for compensation under the Act shall be maintained unless an injured employee gives notice of an accident within 30 days of its occurrence. In a case in that jurisdiction, notice by an employee was given to his employer that he was disabled and very sick. Raymond v. Industrial Commission, 188 N.E. 861. Later it was established that the employee was suffering from lead poisoning. Under the facts of the case, the court held that although the notice may have been defective in not mentioning lead poisoning, the employer was not prejudiced by the omission.

Two occupational diseases are specified by medical name in Article 8306, Sec. 20 , the remainder are listed as certain diseased conditions and the morbid condition resulting from specified causes; for example, diseases known as “asbestosis” and “silicosis” are set out by name, “compressed air illness”, a diseased condition, is specially named, while poisonings caused by any of 31 named substances are set out as unnamed diseases. The statute’s composition refutes any suggestion that a disease not listed by its medical name cannot be an occupational disease. On the contrary a reasonable construction of the article is that any disease listed by name, any diseased condition described, and any disease caused by the toxic agents or by conditions and agents specified are occupational diseases and compensable if otherwise within the terms of Art. 8306, Sec. 25. The Supreme Court of Oklahoma in National Zinc Company v. Hainline, 360 P.2d 236, construed a subdivision of the Oklahoma statute that is very similar to Art. 8306, Sec. 20(a) (listing poisonous substances that may cause a compensable disease), and held: “The terms of this enactment do not restrict its applicability to any specified pathology produced by exposure to the enumerated toxic substances. The provisions only designate the source from which harm must originate and declare that ‘poisoning’ thereby shall constitute a com-pensable disease”.

If the above construction of Art. 8306, Sec. 20(a) is correct, Mr. Petray’s statement in his Notice and Claim that his occupational disease was Asthmatic Bronchitis, Pulmonary Fibrosis and Emphysema, and that he had choking spells and could not breathe well, generally described a disease or pathological condition that, under the evidence in this case, is an occupational disease. It may be conceded that the diseases described by the medical terms used are not specifically named in Art. 8306, Sec. 20, and in some instance may originate from cause other than as listed in the statute, yet if the pathological condition the notice described is, or may be, the result of exposure to the toxic agents listed in the statute, such condition is an occupational disease within the terms of the statute. Whether or not the condition underlying the claim is compensable is a question of fact subject to proof. Specific injuries aside, the general injury cases mentioned earlier indicate that a general description of injury in the Notice of Claim is sufficient when it asserts a hurt or injury to some area of the body. The cases manifest no requirement that the notice do more than describe an injury that is potentially com-pensable; there is no indication that the claimant must negative any fact that might render incapacity from the described injury noncompensable. The occupational disease cases from other jurisdictions do not seem to require the employee giving notice of an occupational disease claim to positively identify the disease involved, unless failure to do so in some way nullifies the purpose of notice.

In conformity with the principle that the Workmen’s Compensation Act will be liberally construed, the diseases named and the description of a pathological condition given in Mr. Petray’s Notice are adequate. The Board, the insurer, and the employer are notified that Petray is claiming to be incapacitated by a respiratory ailment that he claims is compensable as an occupational disease. It would be an extremely strict construction, and it is doubtful that diagnostic skill would be equal to the burden, to require the workman to describe his occupational disease in terms that would exclude every hypothesis except that the disease is one compensable under the law.

It is uncontradicted in this record that Mr. Petray for many years was exposed to and breathed wood dust, particles, etc., impregnated with arsenic, benzol, its homo-logues and derivatives, and chlorine. A qualified witness testified that such exposure caused pulmonary fibrosis, Mr. Pet-ray’s incapacitating illness. There is no evidence that the other diseases and conditions claimed could not have originated in causes listed in Article 8306, sec. 20.

The conclusions expressed resolve the issues briefed. The judgment of the trial court is reversed and the case remanded for trial on its merits.

       Art. 8306, Section 20:
      Wherever the terms ‘injury’ or ‘personal injury’ are used in the Workmen’s Compensation Law of this state, such terms shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom. Unless from the context the meaning is clearly to the contrary, such terms shall also be construed to mean and include occupational diseases, as hereinafter defined. The following diseases only shall be deemed to be occupational diseases:
      (a) Poisoning by: (1) Aluminum Trioxide; (2) Arsenic; (3) Benzol or its homologues and derivatives; (4) Beryllium; (5) Cadmium; (6) Carbon Bisulphide; (7) Carbon Dioxide; (8) Carbon Monoxide; (9) Chlorine; (10) Cyanide; (11) Formaldehyde; (12) Halogenated Hydrocarbons; (13) Hydrochloric Acid; (14) Hydrofluoric Acid; (15) Hydrogen Sulphide; (16) Dead; (17) Manganese; (18) Mercury; (19) Methanol (Wood Alcohol); (20) Methanol Chloride; (21) Nitrous Fumes; (22) Nitric Acid; (23) Petroleum or Petroleum Products; (24) Phosphorus; (25) Selenium; (26) Sulphuric Acid; (27) Sulphuric Dioxide; (28) Sulphur Trioxide; (29) Tellurium; (30) Thallium; (31) Zinc;
      (b) Anthrax caused by handling of wool, hair, bristles, hides and skins;
      (c) Blisters caused by prolonged or repeated use of tools or mechanical appliances ;
      (d) Synovitis, Tenosynovitis, or Bursitis due to an occupation involving continual or repeated pressure on the parts affected;
      (e) Chrome ulceration;
      (f) Compressed air illness;
      (g) Dermatitis; that is, inflammation of the skin due to oil, cutting compounds or lubricants, dust, liquids, fumes, gases or vapors;
      (h) Diseased condition caused by exposure to x-rays or radioactive substances ;
      (i) Diseased condition of the eyes due to electric arc and welding, and cataract in glass workers;
      (j) (Epitheliomatous cancer) or ulceration of the skin or the corneal surface of the eye caused by tar, pitch, bitumen, mineral oil or paraffin or any compound, product or residue of any of these substances;
      (k) Glanders and other diseased conditions caused in handling any equine animal or the carcass of any such animal;
      (Z) Infectious or contagious disease contracted in the course of employment in or in immediate connection with a hospital or sanatorium in which persons or animals suffering from such disease are cared for or treated;
      (m) Nystagmus incurred in underground work;
      (n) Asbestosis;
      (o) Silicosis;
      (p) Psittacosis (ornithosis) caused by the handling or processing of meat and poultry. Added Acts 1947, 50th Leg., p. 176, eh. 113, § 2, as amended Acts 1955, 54th Leg., p. 662, ch. 233, § 1.
      Prior to 1947, incapacity occasioned by occupational disease was not compensable. In that year the Workmen’s Compensation Act was amended by Senate Bill 40, Regular Session, 50th Legislature, to cover occupational disease. It may be of interest, but of no significance, that the author of this opinion was the legislative author of the occupational disease amendment.


author: NYE, Justice.

text:
    Anton ZARUBA, Appellant, v. Paul BOETHEL, Individually, and Executor and Trustee of the Estate of Bertha Umbach, Deceased, Appellee.
    No. 107.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 26, 1965.

      Houchins & Tasker, Kenyon Houchins, Houston, for appellant.
    Otto Moore, Jr., Columbus, for appellee.
   NYE, Justice.

Appellant brought suit against appellee to recover money paid under an oral contract for the purchase of land. The court sustained appellee’s motion for summary judgment, entering judgment that appellant take nothing.

The question before us is whether the appellant’s cause of action is barred by the two-year statute of limitations under the law of summary judgment practice. We must determine when appellant’s cause of action arose to calculate the running of the two-year statute. In this situation we must determine whether any material issues of fact are in dispute as to the time appellant’s cause of action accrued.

Appellant’s first point contends that the trial court erred in determining that there was no genuine issue of any material fact. The facts set forth in appellant’s sworn amended petition and repeated in his brief are as follows:

Appellant entered into an oral agreement with appellee to purchase a parcel of land. Appellee was to guarantee the title to the property which was to include a one-half interest in an adjacent red brick “party wall”. On the 1st day of May, 1957, appellant gave appellee a check in the amount of $700.00 with a notation written on the check “Escrow agreement Lots 7&8 Block 10”.. Appellee tendered appellant a deed to the property which appellant contends did not include the one-half interest in the contiguous red brick wall. The appellant refused to accept the deed, whereupon ap-pellee deposited the check. Appellant concludes that he stood ready to fulfill his agreement to purchase the property in question and that he did not disaffirm the escrow agreement until this suit was filed.

Appellee, in his sworn answer, stated that the money was deposited on May 4, 1957, to the Estate funds, in which he served as executor and trustee. The money was treated as a part of the estate and as a forfeit on the oral contract of the sale of land which was disaffirmed by the appellant on May 17, 1957. Appellee, in his sworn statement made a part of his motion for summary judgment,'stated that on May 15,1957, he tendered to the appellant a deed conveying the property as contracted for, together with a policy guaranteeing the title thereto, but that the appellant suggested that the deed be changed so that it would recite that such property was to be his separate estate and paid for out of his separate property; that a corrected deed was tendered on May 17, 1957, which was refused by appellant. In further support of appellee’s motion for summary judgment, a copy of the deposited check, the original deed, the corrected deed and appellant’s original petition were tendered into evidence.

Appellant’s suit was filed April 26, 1961, almost four years after the oral contract for the purchase of the property took place. Appellee filed his motion and amended motion for summary judgment shortly after the suit was filed. Appellant did not file any answer whatsoever to the motions for summary judgment, nor did he file any affidavits, depositions or other evidentiary matters controverting appellee’s motions, although nearly three years intervened between the filing of the motions and the hearing on the motion. At the hearing on the motion, no objection was made by appellant to the introduction into evidence of the deeds, the sworn amended answer, or appellant’s original petition admitting the refusal of the appellee to convey the property as contracted for and the refusal to refund the money deposited with appellee.

An oral contract for the sale of land ordinarily will not be enforced as violative of the statute of frauds. Appellant did not have a cause of action for specific performance. The purchaser in a proper case may recover the money paid if the vendor refuses to perform. Whaley v. McDonald, 194 S.W. 409 (Tex.Civ.App.1917); Johnson v. Portwood, 89 Tex. 235, 34 S.W. 596 (Sup.Ct.1896). The accrual of a cause of action is the right to institute and maintain a suit against another. Here, the appellant’s right of action was not under the appellee’s control, for when appellee refused to convey the property or refund the money, appellant’s cause of action arose and the statute of limitations started to run. When considering the statute of limitations, it makes little difference as to the factual dispute giving rise to the controversy. It is only important to determine when the controversy began that would give the appellant the right to seek redress. There is no material fact issue as to the time that the cause of action, if any, in favor of the appellant began, as both parties agree that the property was not conveyed, and the money received was not returned, in May of 1957, more than two years prior to the time that appellant instigated this suit. Appellants cause of action, therefore, as a matter of law, was barred by the two-year statute of limitations. The trial court was authorized to grant the motion for summary judgment. Willoughby v. Jones, 151 Tex. 435, 251 S.W.2d 508 (Sup.Ct.1952).

Appellant’s second point complains that the trial court erred in concluding that it affirmatively appeared from the face of appellant’s petition that the cause of action was barred by the statute of limitations. Appellant argues that it was clear from his amended petition that he stood ready to perform the oral agreement to purchase and he had neither disaffirmed nor repudiated the agreement, nor made any demand for the return of his money until this suit was filed.

Disregarding for the moment appellant’s original petition and considering only appellant’s amended petition, we find that appellant admitted that appellee deposited the check to the account of the Estate and “ * * * still holds the sum of $700.-00 belonging to this Plaintiff (appellant) in escrow paying it neither to the heirs of Bertha Umbach, deceased, nor returning it to this plaintiff.” Appellant stipulated that the check was deposited within a day or so of May 4, 1957. Appellant’s cause of action to recover payments made under a contract for the sale and purchase of land is not founded upon the contract but as if the contract had never existed, upon a promise of the vendor implied in law to refund the money which he should not in equity and good conscience retain. Causeway Inv. Co. v. Nass, 131 Tex. 12, 111 S.W.2d 703 (Com.App.1938), opinion adopted by Supreme Court (see cases cited therein); Perkins v. Harper, 330 S.W.2d 241 (Tex.Civ.App.1959, ref. n. r. e.); see also, 92 C.J.S. Vendor and Purchaser § 549, p. 550.

Appellant contends that formal notice or demand is necessary where money has been appropriated. This is not true. Appellant was placed on notice in May of 1957 that something should be done when he neither received the deed as contracted for, nor a refund of money evidencing a part of the purchase price. The pleadings showed on their face that appellant’s cause of action, if any, accrued in May of 1957, and his petition and the other pleadings on file showed his cause of action was barred by the statute of limitations. Taylor v. Missouri-Kansas-Texas R. Co. of Tex., 294 S.W.2d 167 (Tex.Civ.App.1956).

The defense of limitation is maintainable under summary judgment procedure. Jenkins v. Kimbro, 380 S.W.2d 189 (Tex.Civ.App.1964, error dism.); Temco Feed Mills, Inc. v. Beckner, 366 S.W.2d 255 (Tex.Civ.App.1963, error ref.). Where a motion for summary judgment has been on file nearly three years and where the appellant-plaintiff filed no counter affidavits and made no showing other than his pleadings which were on file prior to the filing of the motion for summary judgment, and where appellant made no showing that affidavits were unavailable, the summary judgment was properly granted. Lacy v. Carson Manor Hotel, 297 S.W.2d 367 (Tex.Civ.App.1956, ref., n. r. e.); Broussard v. Austin Road Company, 276 S.W.2d 912 (Tex.Civ.App.1955).

Coming now to the third point, appellant contends that the trial court erred in concluding that an admission in an abandoned pleading was binding upon appellant. There is nothing in the record to show that the trial court reached such conclusion. Appellant admitted in his original petition that his cause of action arose in May, 1957. He admits in his brief that the two-year statute of limitations is applicable to this suit. He argues, however, that the court was unauthorized to consider his original petition. Appellant did not object when appellee introduced the original petition into evidence in support of his motion for summary judgment. No repudiation or counter-affidavits were made to appellee’s sworn answer which unequivocally stated facts establishing that the cause of action commenced in May, 1957, nor to a similar sworn statement made by appellee in his motion for summary judgment, nor did appellant explain his failure to do so. In the absence of any objection or where the admitted facts are not subsequently controverted, such prior admission, when considered with appellee’s affidavit may be treated as conclusive. Loggins v. Stewart, 218 S.W.2d 1011 (Tex.Civ.App., 1949, wr. ref.); Pena v. Frost Nat. Bank, 119 S.W.2d 612 (Tex.Civ.App., 1938, wr. ref.); Lynch v. Crockett Independent School Dist., 244 S.W.2d 564 (Tex.Civ.App.1951); see also 4 McDonald Civil Practice, § 17.26, p. 1393-1394 and cases cited therein.

We hold that appellant, who failed to object to the admission contained in the superseded pleading, and also failed to file any counter-affidavits controverting the admission raising a fact question as to the time when his cause of action did commence, may not object to such admission for the first time on appeal. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Sup.Ct.1962); Hall v. Fowler, 389 S.W.2d 730 (Tex.Civ.App.1965).

Appellant’s points are overruled.

Judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    Barbara Gayle Klare HACKFELD et al., Appellants, v. PACIFIC EMPLOYERS INSURANCE CO., Appellee.
    No. 14394.
    Court of Civil Appeals of Texas. San Antonio.
    July 7, 1965.
    Rehearing Denied July 28, 1965.

      Lawrence H. Warburton, Perkins, Floyd, Davis & Oden, Alice, for appellant.
    Keys, Russell, Keys & Watson, Corpus Christi, for appellee.
   MURRAY, Chief Justice.

The heirs of James Klare and Bobby Joe Rokohl brought this suit against Pacific Employers Insurance Co., to recover benefits under the Workmen’s Compensation Act. Klare and Rokohl were members of a drilling crew and were returning from a tour of duty, riding in an automobile belonging to one of their fellow crew members upon a public highway, when an accident occurred and they were fatally injured.

On the morning of September 20, 1963, Klare and Rokohl each had driven his own car to the home of Ray Hilmer, the driller of the crew, and had then gotten into a car owned by a fellow crew member and had ridden to the drilling site some twenty-five miles away. The crew members were returning to Ray Hilmer’s home in Orange Grove, where, had they arrived safely, Klare and Rokohl would have entered their own respective cars and driven home. In the car in which they were traveling was a water can belonging to Afroma Drilling Company, the employer, which would have been filled with ice water the next morning and carried back to the drilling site for use of the drilling crew. There was a water well at the drilling site, but the crew preferred to bring ice and water from Orange Grove. The driller, Hilmer, would furnish the money for the ice, but the tool pusher would reimburse him if he asked for the money, which he generally did not do. The ice and water were obtained without deviating from the shortest and most direct route to the drilling site.

As Klare and Rokohl were fatally injured on the return trip it would seem unimportant as to what had happened on the trip that morning, or what would have happened the next morning, except for the accident.

After all of the evidence was in, Pacific Employers Insurance Company made a motion for an instructed verdict which was granted and judgment rendered that plaintiffs take nothing, and it is from this judgment that the appeal is prosecuted.

It occurs to us that the facts here simply show that the deceased employees were returning home from work when they were fatally injured in a highway automobile collision. The record shows that their pay did not start until they arrived at the rig site ready to go to work, and such pay stopped when they left the rig floor. Getting to and from their work was a matter for the crew members. Afroma Drilling Company furnished no transportation.

There is evidence that Ray Hilmer, the driller who had the power to hire and fire, had told the crew members to gather at his house in Orange Grove, and there form a car pool to cut down the expense of going to and from work. It is not shown that he had any authority from the drilling company to make or enforce such orders. Apparently it was just the sensible thing to do and for the benefit of the crew members. The foreman had the same problem of getting to and from work as did the other crew members. Art. 8309, sec. lb, Vernon’s Ann.Civ.Stats., enacted by the Legislature in 1957, plainly states as follows:

“Sec. lb. Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

The travel here does not come under the above provisions. These employees were simply returning to their homes from work. In Maryland Casualty Co. v. Thomas, Tex.Civ.App., 367 S.W.2d 407, wr.ref., it was appellee’s contention that he came within the provisions of Sec. lb, supra, in that he had been ordered by his superior to go home, get some rest and return at 11:00 p.m. ready to take out a company truck loaded with “oil-gas.” The appellate court did not agree.

Here we have a simple case of employees being injured while returning from work, riding in a car belonging to' a fellow employee, and operated at his own expense. These employees simply rotated the use of each other’s car to reduce expenses. The fact that the water can belonging to the employer was in the car does not change the situation one bit.

Appellants rely heavily upon the case of Jecker v. Western Alliance Ins. Co., 369 S.W.2d 776 (Tex.1963). In the case at bar the accident occurred while the crew was traveling from work to their homes by the shortest and most direct route. They were performing no duties for their employer, and their exposure to traffic hazards was the same as the general public. The car was not under the control of the employer, nor were the expenses thereof paid in whole or in part by the employer. In the Jecker case the employee was a sales and service man for his employer, and when he sustained his fatal injuries he was on a trip, which was impliedly directed by his employer, to service an electric stove in a nearby town; quite a different situation from what we have here.

The case most closely resembling the case at bar is that of Janak v. Texas Employers’ Ins. Ass’n, 381 S.W.2d 176 (Tex. 1964). There the employee was permitted to recover workmen’s compensation. He was not returning, but was on his way to work and the driver of the car deviated from the most direct route to pick up ice and water, which was shown under the circumstances to be in furtherance of the employer’s business. No such facts are shown here.

The judgment of the trial court is affirmed.