author: HUGHES, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Walter Lee SHIREY, Appellee.
    No. 11299.
    Court of Civil Appeals of Texas. Austin.
    May 19, 1965.
    Rehearing Denied June 9, 1965.

      Hardeman, Smith & Foy, S. Ancial Mid-dlebrook, San Angelo, for appellant.
    Webb & Stokes, Tom Webb, San Angelo, for appellee.
   HUGHES, Justice.

This is a workmen’s compensation case in which appellee, Walter Lee Shirey, recovered a judgment against Texas Employers’ Insurance Association for total and permanent incapacity payable in a lump sum. Trial was to a jury.

Appellee made a motion, filed after the trial had commenced, that appellant’s counsel be instructed “not to make any inquiry of any witness and not to make any statement to the Jury concerning the possible or potential beneficial effect of surgery upon the Plaintiff, WALTER LEE SHIREY, and further, not to ask any question of any witness designed or calculated to allude to any such potential benefit or to intimate that surgery is required on the Plaintiff’s person or should be rendered to the Plaintiff or might alter or change his condition. Further, Plaintiff prays the Court by instruction in the absence of the jury, to make known to medical witnesses that they are not to base any estimate as to future disability of Plaintiff upon the hypothesis of subsequent surgery.”

The transcript does not reflect that this motion was presented to and acted on by the Court, however, the statement of facts makes reference to a ruling made by the Court in chambers sustaining the motion. Also, the statement of facts contains a bill of exceptions in which it is shown that appellant offered and the Court excluded evidence of the nature described in appellee’s motion.

The Industrial Accident Board made its final decision on appellee’s claim on January-16, 1964.

Appellee was injured on January 29, 1963.

On June 27, 1963, while appellee’s claim was before the Board, Dr. James D. Wim-pee, a witness for appellant, performed surgery on appellee which Dr. Wimpee described as removing “the pressure that was on the nerves coming out of the back of his leg.” This was accomplished “by cutting away the bone and the protruded ruptured bulging disc out of the joint space that had bulged out against this nerve root.”

Dr. Wimpee re-examined appellee on June 19, 1964, after which he recommended that appellee undergo further surgery which would entail exploration of the third, fourth and possibly the fifth lumbar, and, a fusion of the third lumbar and fourth lumbar.

The possibility of this additional surgery was mentioned to appellee by Dr. Wimpee prior to the ruling of the Board on appel-lee’s claim but he “did not come right out and specifically recommend ‘We are going to do further surgery’ until February 1964.”

The record before the Board respecting appellee’s claim does not disclose any admission of liability on the part of appellant or that any tender of surgery was made to appellee for the operation which was performed or for the second operation which was not performed except as may be disclosed by the following testimony of appellant’s attorney:

“Q As attorney of record for Texas Employers’, do you know of any tender through the Industrial Accident Board of a second operation that was made to Mr. Walter Shirey while this case was pending before the Industrial Accident Board of Texas?
A Only in the sense that an operation was not only tendered but performed, and the man continued to be under the care of Dr. Wim-pee and Dr. Wimpee discussed with him the possibility of a second operation with the full realization that he could perform such an operation and Texas Employers’ would pay for it if he did it. As far as the formal written tender of a subsequent operation, there was no more such tender in connection with the second one than there was with the first. This whole case was handled informally, as far as I know.”

In the opinion of Dr. Wimpee, the second operation would make appellee “better off than he would be able to accomplish by himself.”

It is the contention of appellant that, “The additional surgery is nothing more than a continuation of the surgical procedures already performed, which was brought out in the direct examination of Dr. Wim-pee as follows: ‘Q. Now, essentially, when you speak of the decompression operation and fusion operation, are you talking about what frequently amounts to two steps in a two-step procedure? A. Yes, you are.’ ”

Dr. Wimpee also testified:

“Q All right. Now, Doctor, we are talking about two different operations, are we not, when you say you want to go back in and do an additional decompression and spinal fusion?
A Yes, in a sense. Yes, two separate operations in a way. You might even get in and find the condition, for instance, that would cause you to decide once again to stop just short of spinal fusion. So, in a sense I think yes, it is two separate operations, surgical procedures.”

We quote the following from appellant’s brief which follows the above quotation:

“The above reasons take this case out of the line of cases cited above wherein the benefits of surgery were excluded where no tender had been made before the Industrial Accident Board.
******
In the instant case, the technical requirements of Sections 12b and 12e of Article 8306 were no longer in the picture when the Defendant tendered surgery to the Plaintiff, he accepted it, and the surgery was actually performed. All of the consequences of that operation, good and bad, became relevant and material when the surgery was performed. The possibility of repeat surgery to correct conditions that may have been caused by the first operation was one of those consequences.”

It is our opinion that the court did not err in sustaining appellee’s motion and in excluding the proffered testimony tending to show the beneficial effect of a second operation and that appellant’s point one presenting these assigned errors should be overruled.

The term “surgery” as used in the Workmen’s Compensation Act has been held to embrace “only cutting operations.” Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521.

In Texas Employers’ Insurance Association v. Vasquez, 371 S.W.2d 119, Amarillo C.C.A., n. w. h., it was held that although the claimant was told on the day the Industrial Accident Board took final action on his claim that another operation (third) was needed and that although the insurer agreed to pay for such operation it did not while the claim was before the Board admit liability, tender surgery, make a demand therefor or request that the Board take action toward surgery, that the insurer could not offer evidence that the claimant had refused surgery or that further surgery might benefit him.

This case and the authorities cited in it are conclusive against the contention of appellant that it had complied with the requirements of Section 12e, Art. 8306, Vernon’s Ann.Tex.Civ.St., so as to entitle it to offer evidence of the benefits which might be expected from further surgery.

This case, Vasquez, is also authority for denying the contention of appellant that the second operation recommended for ap-pellee was but a continuation of the first operation. The court approved the definition of the duration of an operation as beginning “[W]hen the opening is made into the body and ends(ing) when this opening has been closed.”

It is undisputed that the operation performed on appellee was a “cutting operation” and that the incision made in appel-lee’s body had long been closed prior to any suggestion that further surgery was needed. Under these facts, further surgery constituting a cutting operation would require a new opening in appellee’s body and a closing of the new opening. This, in our opinion, would be “surgery” within the meaning of the statute above cited.

When the Board issued its final order on appellee’s claim, it lost jurisdiction of it. Liberty Mutual Insurance Co. v. Wright, 196 S.W.2d 349, Fort Worth C.C.A., writ ref. The subsequent appeal by appellee from such order did not vest the court to which such appeal was taken with jurisdiction or authority to perform duties, such as ordering and supervising operations, which are placed by statute exclusively with the Board. As to these matters the rights of the parties became fixed by what transpired before the Board. Garcia v. Travelers Insurance Co., 365 S.W.2d 916, Tex.Sup.

Since appellant had not complied with the requirements of Sec. 12e, supra, while ap-pellee’s claim was before the Board, it cannot claim any benefits thereunder.

Appellant’s second point is that the trial court erred in not granting it a new trial because of the misconduct of appellee’s counsel.

Appellant contends that appellee, through his counsel, sought to leave the impression with the court and jury that appellant did not deal fairly or honestly with those having claims against it. This was attempted, in part, appellant says, through the examination of its Claims Manager, Mr. Glenn East, regarding practices when a claimant does not recover a lump sum judgment, as disclosed by the following proceedings :

“Q All right, sir. Now, in the event that a man is paid by the week, as you are contending or as your company is contending in this case should be done, quite often six months or a year later, if that man has some financial problem, that judgment is then reduced to a lump sum for the statutory discount plus an additional discount of five hundred or a thousand dollars; isn’t that correct?
MR. FOY: Your Honor, this line of examination is completely irrelevant and incompetent on the issue of manifest hardship or any other issue in the case as to what might happen in the future in the case of a judgment payable over a period of weeks.
MR. WEBB: Your Honor, it is highly relevant to the question of whether it would be a manifest hardship on this man, the very fact that if paid by the week he can subsequently be in a position where in order to get a cash settlement he makes a discount even beyond the statutory four per cent.
MR. FOY: We object to that line of testimony. We further object to the statement Mr. Webb has just made in the presence of the jury. As a matter of law it is an incorrect statement; as a matter of law, it is further a statement which is completely irrelevant and has no proper bearing on any issue to be determined in this case. First of all, we object to the question and ask that it not be answered; secondly, we move that Mr. Webb’s statement be stricken from the record and the jury instructed to disregard it.
THE COURT: I will overrule the obj ection.
MR. FOY: Note our exception.
Q As a matter of fact, Mr. East, after a judgment becomes final in a case any subsequent settlement of the judgment itself is a matter between the parties and without court supervision, it is not ?
A I have never settled one—
MR. FOY: Excuse me, Mr. East. Don’t answer the question. We object to that as completely irrelevant, incompetent, immaterial to any issue in this case. It has no proper place or bearing upon any issue as to what might happen to a judgment after it is rendered by the court. It has a tendency to cause the people who are to decide this case to speculate and conjecture upon the future effects of any judgment.
THE COURT: Overrule the objection.
MR. FOY: Note our exception.
Q As a matter of fact, Mr. East, in the Cecil Turner case here after judgment a discount above the statutory discount was entered in order to reduce it to a lump sum, was it not?
MR. FOY: If the Court please, we object to that. It amounts to unsworn testimony by counsel, in the first place; in the second place it injects into this case an entirely improper and erroneous and prejudicial line of evidence, namely counsel’s contention that judgments are generally or can be reduced below their face amounts by settlements. Counsel has a definite purpose in mind, it is a prejudicial purpose; and we object to it and move it be stricken from the record.
MR. WEBB: I will withdraw that question, your Honor.
MR. FOY: Your Honor, we move that it be stricken and that the jury be instructed to disregard it for any purpose.
THE COURT: The jury will disregard the question and not consider it at all.
MR. FOY: Your Honor, because of this persistent line of examination and the persistent injection of prejudicial, erroneous, irrelevant and immaterial information into the record by counsel we move for a mistrial.
THE COURT: Overruled.”

It is to be noted that there was considerably more “asking” than there was “answering.” Of course, the mere asking of some questions can be so harmful as to constitute reversible error. We do not believe this is true here. The issue of “manifest hardship” justifying a lump sum payment instead of weekly payments to ap-pellee was a contested issue. The rule is that in investigating such issue more than ordinary latitude is allowed. Traders & General Ins. Co. v. Ross, 88 S.W.2d 543, Texarkana C.C.A., reversed on other grounds, 131 Tex. 562, 117 S.W.2d 423.

It seems to us that if it is common practice for insurers to bargain for excessive discounts when lump sum judgments are not paid that this is relevant to- the issue of “manifest hardship” under the rule of liberality above noted. Appellant does not brief the admissibility of the testimony sought to be introduced, but which was not in fact introduced, and we do not pass directly on such question. We do hold that the mere asking of the questions above noted and the proceedings thereon do not present reversible error under Rule 434, Texas Rules of Civil Procedure. We make this ruling in light of what we have said and also influenced by the fact that appellant does not assail the jury finding of manifest hardship and injury to appellee unless a lump sum award is made.

Under this same point appellant complains of the following proceedings:

“Q Now then, Mr. East, as a matter of fact when a doctor, say such as Dr. Landy, comes into court and testifies contrary to your position, one of your jobs is to immediately go and deauthorize him to render any treatment to any other people insured by Texas Employers’, isn’t it?
A No.
MR. FOY: Your Honor, that is completely argumentative and calls for a conclusion. It is irrelevant, incompetent and immaterial, intended to be prejudicial.
MR. WEBB: It bears on that question of prejudice, bears on the question why it is that a plaintiff has to seek a doctor to come and testify, other than one that they use.
THE COURT: Overruled.
MR. FOY: Note our exception. Your Honor, we move to strike the remarks counsel just made. They also are intended to be prejudicial and inflammatory against this defendant.
THE COURT: Overruled.
MR. FOY: Note our exception.
Q Asa matter of fact, you have gone to Dr. Landy, specifically, and told him not to treat anyone else insured by Texas Employers’ without your prior written or verbal approval, haven’t you?
MR. FOY: Now, your Honor, we object to that question as completely irrelevant, immaterial and incompetent. It is intended to inject prejudice into the case; it is intended to inflame the jury against Texas Employers’ Insurance Association; it has no proper bearing on any relevant issue here.
MR. WEBB: It is certainly germane to this question that they have opened as to the medical situation for a man who is a plaintiff.
THE COURT: Overruled.”

Prior to the proceedings just related, appellant had queried its witness, Mr. East, regarding Dr. J. M. Estes, appellee’s medical witness, as follows:

“EXAMINATION BY MR. FOY:
Q Mr. East, are you acquainted with Dr. J. M. Estes, of Abilene?
A Just when I see him on the stand testifying.
Q State whether or not you have seen him frequently on the stand testifying.
A Since I have been with the company I have seen him a number of times.
Q I will ask you to state whether or not in virtually every case that Webb & Stokes have against your company you find a report from Dr. Estes in the file.
A That’s right. He apparently examines all of them.
Q I would like to read you the language from an opinion dated May of 1963 by Dr. Estes in this case:
‘OPINION: It is my opinion that Mr. Shirey has been totally disabled since the date of the accident and is totally disabled at this time. It is my further opinion that he will be totally and permanently disabled in relation to doing manual labor.’ I will ask you to state whether that language is familiar to you.
MR. WEBB: If it please the Court, that is irrelevant, what is familiar to this man or isn’t familiar to him.
MR. FOY: It is relevant impeachment, your Honor, because the next question is going to be—
MR. WEBB: Let his Honor rule on the objection.
THE COURT: Overrule the objection.
MR. WEBB: Note my exception.
Q Is that language or not familiar to you?
A They all read about the same.
Q When you say ‘they’ what do you mean?
A I am talking about all his reports read about the same with the exception of the man’s name.”

Other examination of Dr. Estes by counsel for appellant brought out the long and widespread experience of Dr. Estes in trials similar to this case.

There are no points raising the admissibility of any of the evidence introduced or sought to be introduced, referred to above.

We quote, from appellant’s brief, a portion of the argument made under this point:

“Counsel’s statements in regard to the medical situation under which a Plaintiff labors was an attempt to bolster up his own medical witnesses. Dr. James Wimpee, testifying for the Defendant, testified that given conservative medical treatment in the future, Plaintiff would be able to work at less remunerative labor. Dr. Landy, testifying for the Plaintiff, would not admit that Plaintiff was totally and permanently disabled. The only medical witness who stated that Plaintiff was totally and permanently disabled was Dr. Jack Estes. On cross-examination of Dr. Estes, it was brought out that he had testified for Plaintiffs all over the State of Texas and was consistently prone to render a ‘Total and Permanent’ opinion. Therefore, in order to bolster up his medical witnesses, Plaintiff’s counsel sought to create to the jury the impression that a plaintiff is forced to resort to medical witnesses who are capable of being discredited.”

What appellee was trying, but failed, to prove was an explanation of the frequency of Dr. Estes’ appearance as a witness for a plaintiff in these cases by showing that if a doctor does so testify he will be barred from treating patients at the behest of an insurance company, and thus the number of doctors willing to testify for plaintiff was curtailed.

It is our opinion that the unsuccessful attempt to make this proof was not, under the circumstances, reversible error under Rule 434, T.R.C.P. We do not pass on the admissibility of such evidence because no such testimony was admitted.

Appellant also, under this point, complains of the following proceedings during the interrogation of Mr. East:

“Q As far as the future is concerned, we just wound up a lawsuit on another man’s future medical, just a day or two ago, didn’t we?
MR. FOY: Now, your Honor, this again is an attempt to inject prejudice into this case. Mr. Webb has just offered a completely irrelevant and immaterial statement on his own part; it is inflammatory, it is prejudicial to our rights. We object to it, and we do not only object to it, we move that the question itself be stricken from the record and the jury instructed to disregard it.
MR. WEBB: Your Honor, when he testifies that he is going to magnanimously pay this man’s future medical, we have a right to challenge it by showing the experience we have had with him before in similar situations and that is what that question bears on.
MR. FOY: Now, we object further to that remark of counsel and we move that it be stricken from the record.
THE COURT: Sustain the objection. The jury will disregard the question and remark objected to.
MR. FOY: Now, your Honor, in view of this whole situation, in view of counsel’s continued attempt to insinuate that Texas Employers’ is doing something nasty and underhanded and subversive toward the right of people to obtain medical treatment we move for a mistrial.
THE COURT: Overruled.”

Just prior to these proceedings, appellant had procured the following testimony from Mr. East:

“Q I will ask you to state whether you have, as and when you were notified that it was needed, furnished medical treatment to the plaintiff in this case?
A We sure have.
Q I will ask you to state whether you have paid all of the bills rendered to you for medical treatment and hospitalization of the plaintiff in this case?
A As far as I know they have all been paid.
Q And are you ready and willing and able to continue to do that in the future?
A That’s right.
Q Have you attempted in any way to prevent this plaintiff from obtaining any medical treatment whatsoever ?
A I have not.”

Appellee, of course, was attempting to show that collection of future medical bills was sometimes fraught with controversy. We hold that appellant having introduced this subject of future medical bills, reversible error is not shown under Rule 434, T.R.C.P. by the above proceedings.

Point two is overruled.

Appellant’s third point is that the following jury finding is evidentiary only and will not support a judgment:

“SPECIAL ISSUE NO. 11:
Do you find from a preponderance of the evidence that the payment of compensation, if any, to Plaintiff, WALTER LEE SHIREY, in weekly installments instead of a lump sum will result in manifest hardship and injury to Plaintiff?
Answer: ‘Yes’ or ‘No.’
ANSWER: yes”

Section 15 of Article 8306, Vernon’s Ann.Tex.Civ.St., reads, in part, as follows:

“ * * * Where in the judgment of the Board manifest hardship and injury would otherwise result, the Board may compel the association to redeem the liability by payment of the award of the Board in a lump-sum, * *

Prior to 1959 the word “injury” as found in the present statute read “injustice.”

Appellant contends that the Legislature did not intend to substitute the word “injury” for “injustice” and that this is borne out by the emergency clause to the 1959 Amendment which, in proper context, used the word “injustice” rather than the word “injury,” and that the Court, therefore, erred in using the word “injury” in the above special issue.

We overrule this point. The intention of the Legislature is to be derived from the language used by it and not by what language we may believe it intended to use. An emergency clause in a statute may not be invoked to create an ambiguity in a statute or to control its plain meaning or purpose. Statutes, 53 Tex.Jur., Sec. 170, p. 249. '

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

Affirmed.


source: Caselaw Access Project

author: ARCHER, Chief Justice.

license: Public Domain

text:
    T. B. CORDER et al., Appellants, v. STATE WATER POLLUTION CONTROL BOARD of the State of Texas et al., Appellees.
    No. 11301.
    Court of Civil Appeals of Texas. Austin.
    May 19, 1965.
    Rehearing Denied June 9, 1965.

      Kucera, Lay & Lightfoot, Bennett Lay, Houston, for appellants.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, 1st Asst. Atty. Gen., Stanton Stone, Executive Asst. Atty. Gen., J. S. Bracewell, F. R. Booth, George C. Black, Jr., Asst. Attys. Gen., Austin, Cyril J. Smith, Houston, Gibson, Spence & Gibson, Robert Spence, Austin, for appellees.
   ARCHER, Chief Justice.

This is a suit brought under Section 7 of Article 7621d of the Revised Civil Statutes of Texas, to set aside the action of the State Water Pollution Control Board in granting a permit to Harris County Water Control and Improvement District No. 84, to discharge sewage effluent from a sewage treatment plant into Fresh Water Bayou, a stream which is dry nearly all of the year, whose course is adjacent to or in the immediate vicinity of plaintiffs’ property. Such permit was issued April 27, 1964, effective as of March 5, 1964. Plaintiffs timely filed suit in the 53rd Judicial District Court of Travis County, Texas, on March 25, 1964 to set aside such permit.

Trial was before the Court without a jury and, over plaintiffs’ objection, under the substantial evidence rule. Judgment was rendered that plaintiffs take nothing by their suit.

The appeal is founded on seven points assigned as error by the trial court in holding that this case be tried under the substantial evidence rule, and the holding that appellants take nothing is so against the great weight and overwhelming preponderance of the evidence as to be unjust, in holding that the permit granted by the State Water Pollution Control Board was reasonably supported by substantial evidence and that the permit is unreasonable and will cause damages to adjacent property and in the immediate vicinity of the stream into which the discharge is made in an amount of $645,959.00, that the Board’s action was arbitrary, that the Court erred in admitting into evidence certain exhibits and the testimony of witness V. K. Berkstresser in connection therewith, and finally in sustaining the action of the Board in granting the permit.

The Texas Water Pollution Control Board was created by Acts 57th Leg., 1961, 1st C.S., Ch. 42, p. 156, codified as Article 7621d, Vernon’s Ann.Civil Statutes.

Harris County Water Control and Improvement District No. 84 is a political subdivision of the State of Texas established pursuant to Article XVI, Section 59, Texas Constitution, Vernon’s Ann.St. The district is authorized to provide a system for municipal water supply and disposal of sewage.

Public hearings were held by the Board relative to the desire of the District to discharge an average of 480,000 gallons daily of treated effluent and considered as places of discharge (1) into a proposed Harris County Flood Control ditch, thence to Bear Lake, and thence to the San Jacinto River; (2) Plant to be located on Lot 58 of Old River Acres near Bear Bayou Drive and Fresh Water Bayou south of Bear Bayou Drive approximately 4000 feet East of Sheldon Road in the Peter Duncan Survey, A— 232, with discharge into Fresh Water Bayou, thence to Old River. Another plant location and place of discharge was considered.

Objection and protest developed against all three proposed locations. The Board ultimately granted a permit to the District to discharge treated effluent at the place described in Proposal No. 2. Plant to be located on Lot 58 of Old River Acres near Bayou Drive and Fresh Water Bayou south of Bear Bayou Drive approximately 4000 feet East of Sheldon Road in the Peter Duncan Survey, A-232, with discharge into Fresh Water Bayou, thence to Old River.

The Permit in full reads:

“PERMIT NO. 10558
TEXAS WATER POLLUTION CONTROL BOARD 1100 WEST 49th STREET AUSTIN 5, TEXAS
PERMIT to dispose of wastes under provisions of Article 7621d, Vernon’s Civil Statutes
I.Name of Permittee
1. Name Harris County Water Control & Improvement District No. 84
2. Address 1330 Sheldon Road
3. City Channelview, Texas
II.Type of Permit
Regular X Amended_
III.Nature of Business Producing Waste
Municipal sewerage system
IV. General Description and Location of Waste Disposal System
Plant Description: Primary clarifier, primary settling tank, first and second stage biological filters, final clari-fier, sludge digester, drying beds, and chlorine detention well.
Plant Location: On Lot 58 of Old River Acres near Bear Bayou Drive and Fresh Water Bayou, Harris County, Texas.
System: To serve Harris County WCID No. 84
V. Conditions of the Permit
1.Character, volume and disposal area(s) or point(s) of discharge authorized under this Permit. The conditions on the reverse side are a part of this Permit and apply for all purposes.
CHARACTER: Municipal sewage effluent
VOLUME: Not to exceed an average of 480,000 gallons per day.
QUALITY: Not to exceed an average of 20 ppm of B.O.D. nor an average of 20 ppm of Total Suspended Solids and continuously chlorinated to a residual of not less than 1.0 ppm of chlorine after 20 minutes time of contact.
POINT OF DISCHARGE: Into Fresh Water Bayou south of Bear Bayou Drive approximately 4000 feet east of Sheldon Road in the Peter J. Duncan Survey, A-232, thus to Old River.
2.Special Provisions None
3.This permit becomes effective March 5, 1964 and is valid until amended or revoked by the Board.
ISSUED this 27th day of April . 1964.
/s/ D. F. Smallhorst Executive Secretary
/s/ Joe D. Carter_ For the Board

Appellants appealed pursuant to the provisions of Article 7621d, Section 7, which reads in part:

“ * * * It is the intent of the Legislature that such trial shall be strictly de novo and that the decision in each case shall be made independently of any finding, express or implied, by the Board, and upon a preponderance of the evidence adduced at such trial and entirely free of the so-called ‘substantial evidence’ rule enunciated in some cases by some appellate courts in this State in respect to orders of other administrative or quasi-judicial agencies. Appeals from decisions of the District Court shall be as in other civil cases.”

We believe that appeals pursuant to Section 7 of Article 7621d shall be tried under the substantial evidence rule.

In Southern Canal v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619, our Supreme Court held that “The statute providing that in suits to review orders of State Board of Water Engineers trial should be de novo and decision made upon preponderance of the evidence is void * * * »

In the absence of constitutional amendment, re-enactment of an unconstitutional statute does not render the statute constitutional. City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788; Brazosport Savings & Loan Association v. American Savings & Loan Association, 161 Tex. 543, 342 S.W.2d 747.

Key Western Life Insurance Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839, cited as authority for trial de novo, recognizes the distinction between judicial and non-judicial function in stating:

“A power or authority which cannot be lawfully delegated directly to the judiciary by the Legislature because of the constitutional provision (Article II, Section I) cannot be conferred upon the courts by means of a de novo trial after an administrative hearing.”

In Halsell v. Texas Water Commission, 380 S.W.2d 1, er. ref., n. r. e., this Court discussed the application of the substantial evidence rule.

The question of the constitutionality of a complete trial de novo was presented in Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699. Texas State Board of Examiners in Optometry v. Carp, 388 S.W.2d 409, Supreme Court.

In the instant case the appeal is from an order granting the State permission to discharge waste into public waters. It is prospective in nature and any damage that occurs to the landowner must wait until plant operation begins.

Article 7621d reserves the right to these appellants to bring an action for damages or to enjoin nuisance created, which reads:

“This Act shall not in any way affect the right of any person to pursue all legal and equitable remedies available to abate pollution and other nuisances or recover damages therefor, or both. Boyd v. City of San Angelo, Tex.Civ.App., 290 S.W. 833, er. ref.

The license granting powers of an administrative agency are legislative in nature. Kost v. Texas Real Estate Commission, Tex.Civ.App., 359 S.W.2d 306, er. ref.

The right to appeal must be limited to whether or not the order in question is reasonably supported by substantial evidence.

We believe that the trial court correctly held that the permit was reasonably supported by substantial evidence.

The record in this cause is long, the statement of facts contains 452 pages, and there are many exhibits consisting of maps of the area and photographs of houses and improvements, and we have read the entire record and given careful consideration to such evidence.

Appellants’ second, third, fourth and even the fifth point are directed to the issue of substantial evidence. In these four points, appellants contend (1) the sewage treatment plant and the sewage effluent discharge point will be located outside the district’s boundary on an intermittent stream flowing through a populated area; (2) the discharge of treated sewage effluent will constitute a health hazard; (3) location of the treatment plant and discharge point will damage adjacent property; and (4) there are other more desirable sites for the treatment plant and discharge plant than the one permitted, and contend that there is no substantial evidence to the contrary.

The record reflects that the permitted treatment plant and the permitted treated sewage effluent points are located outside the boundaries of appéllee district.

The location of the treatment plant is not an issue in this suit, and the permit from which this appeal lies does not mention the location. Except to the extent that the discharge point could control location of the treatment plant, the Pollution Control Board has no jurisdiction and the standards for constructing the treatment plant were not within the jurisdiction of said Board, or the scope of its action in granting the permit, such being within the province of the State Health Department (Article 4477-1, Section 12), and the Texas Water Commission (Article 7880-139).

However the location of the plant and degree of treatment at the plant are interwoven with the problem of disposal of sewage effluent. The Pollution Control Board is composed of representatives from the State Health Board, Texas Water Commission and the Parks and Wildlife Commission.

The first application by the district was considered by the Board on August 22, 1963, and was on Proposal No. 1 to discharge into Bear Lake. Protests were made and at a meeting in November 1963, Proposal No. 1 was denied without prejudice. Later in November the District supplemented its original application by adding two additional proposed points of discharge. No. 2 was the Fresh Water Bayou route subsequently granted. Proposal No. 3 was to discharge into Carpenter’s Bayou and a public hearing was had on the entire subject beginning January 30, 1964. Protests were made and on April 27, 1964 the permit to discharge treated sewage effluent into Fresh Water Bayou was granted to become effective on March 5, 1964.

The course of Fresh Water Bayou, a stream which has a natural flow only intermittently less than a month out of the year, is through a high class residential area.

Dr. W. A. Quebedeaux, a chemical engineer, qualifying as an expert, testified at length, described the three proposed discharge sites and the area as a whole, and stated that from a health standpoint the site of discharge into the San Jacinto River would be the most desirable; the next, Carpenters Bayou, and the least desirable would be Fresh Water Bayou, the site selected by the Board. The witness detailed areas as to residential use and business use, with many pictures.

The witness stated that he was on the plaintiffs’ side but was appearing in the interest of the people in Harris County; that Harris County had not made an appearance in the suit challenging the validity of the permit.

The witness testified that there would be an odor problem in the use of the Fresh Water Bayou. That the permit restricts the operators as to the quantity of the liquid discharged but there would be settling of solids, that the bayou is winding, with brush, small trees and dry rocks, and potholes in it when it starts drying up, and that the use of chemicals will be necessary to control the odors.

The witness testified as to the advantages of the other two proposals as compared to the permitted location, and again stated that Proposal No. 2 was the most objectionable of all proposals, and estimated the costs of concrete lines and the size necessary to carry the discharge effluent up to 480,000 gallons.

A. A. Mosely, an insurance and real estate broker, testified as to the values of real estate in the area of Fresh Water Bayou, setting out values at the time of the hearing and the respective values of the properties after the discharge of the effluent and that the reduction would be over 50% and an overall damage of $645,959.00.

Dr. Quebedeaux was recalled for further cross-examination by the Board and testified to substantially the same tenor and effect as previously.

The plaintiff, appellant herein, called T. B. Corder who testified as to improvements in the Water District and that there were only a few residents in the District.

Five other witnesses testified to substantially all the same conditions and to the effect as to Fresh Water Bayou being a dry stream and as to pictures along the Bayou.

The defendant, appellee herein, called as witness E. W. Ogden, who testified as to the creation of the Water District to have a water and sewage disposal plant, and its purposes.

Hugh Yantis, an employee of the State Health Department, assigned to work as the Chief Engineer of the Water Pollution Control Board and as recorder, testified as to hearings by the Board, identifying the applications and the minutes as well as protests, letters, etc., and that many people appeared in opposition.

There was introduced a map of the area showing the outline of the District No. 84, the proposed location of the plant, the routes of Proposals Nos. 1 and 3, and Route Proposal No. 2 selected by the Board, but we are unable and see no real need to insert such map herein. The location of the treatment plant is not an issue in this case.

Mr. Yantis described the plant as follows:

"Q Mr. Yantis, do you know of any other treatment plant in this area that the Board has permitted that has the requirements and the capacity and the ability to treat this effluent comparable to this particular proposed system?
A Yes. Now, this answer has got to be qualified somewhat, and I might state at this point — my routine duties do not require me personally to do any of this review of plans and specifications. This is done by other engineers within the framework of the State Health Department’s ordinary activities. I do keep fully aware of what they are doing, but I do not personally do it.
Any plant approved by the State Health Department can produce a satisfactory effluent as good as this plant would do. There are additional safety features which have been put into this plant when trouble comes, which are not in plants that were built before, and I am not sure that they are in any plant which has been recently approved. This I do not have personal knowledge of. This was the first plant, though, where the need for additional safeguards became evident. We are developing, and the State Department of Health is developing, on the line of requiring either these or similar requirements on future plants, but I do not know how far they have gone.”

V. K. Berkstresser, a Consulting Engineer in a municipal field and a Registered Professional Engineer, set out his qualifications, work done and experience in Harris County in the water and sewage field for many districts, designing such. The witness identified a number of pictures of the water in Fresh Water Bayou below the effluent outlet of the sewage treatment plant above Martin’s Lake at the end of Pine Street, and other sides along the Bayou.

The witness stated that there is no flowing water in Proposal No. 1, but is a drainage ditch, and described Bear Lake.

Mr. Berkstresser testified that the odor problem will be non-existent, and that in two other treatment plants designed by him there has been no odor problem, and the present plant is an improvement over the previous ones; if there is some odor, the prevailing winds are such that the odor will not affect appellants’ property, and further stated:

“Q * * * In your opinion, is the capacity of the stream and the fall of the stream from the treatment plant to Martin’s Pond adequate and satisfactory to carry off the treated effluent rapidly and without causing any problem from the standpoint of health or from the standpoint of odor?
A Yes, sir.
Q All right, sir. Now, then, turning to Martin’s Pond. Now, with the pond being in existence, state whether or not this will have a tendency to trap the effluent that is running through it and cause some conditions there that would not occur if the pond were not there.
A Yes. As the effluent is coming down the stream with the velocity and as it hits the pond and goes into a larger area, the velocity will slow down. The pond will act as a settling tank and, therefore, there will be some natural treatment that takes place in the pond, but the effluent, then, that goes out of the pond would be in better condition than before it come into ⅛ * * * ”

Where the railroad crosses Fresh Water Bayou, tidal confluence begins. From the railroad crossing to the Bayou’s confluence with Old River is 5,000 feet. There is an existing sewage treatment plant and effluent discharge point on Fresh Water Bayou between the railroad crossing and Old River.

Mr. Berkstresser, when asked what effect the discharge of effluent would have on Fresh Water Bayou, testified as follows:

“A Well, I personally professionally feel that as the stream is normally a dry stream, the growth that takes place, that there is no recreational value under those conditions, and if you had a stream, an effluent stream, flowing down there, that, if anything, it would be better.
Q All right. Now, then, * * *
A You see, the velocity of that stream is fast, and there will be no nitrification and no settling out.”

With regard to the existing District 21 situations, the witness Berkstresser stated:

“A Well, after you hit tidewater at the railroad track and down through the existing ‘21’ treatment plant, if any effect, I feel that it would be beneficial, that it would have a tendency of carrying the existing material that would tend to back up there, to carry it on out with the additional flow of water, and as the amount of water increases, why, that help would increase.”

There were three other witnesses testifying in support of the plant, but we see no need to further lengthen this opinion.

The trial court saw and heard the witnesses and the maps and exhibits and rendered judgment upholding the order of the Board, and we believe he was justified in doing so.

We do not believe that the permit issued to Harris County Water Control and Improvement District No. 84 is void because it was issued more than 90 days after receipt of application, as provided in Section 4(b) of Article 7621d, such being only directive. Texas Department of Public Safety v. Dawson, Tex.Civ.App., 360 S.W.2d 860, n. w. h.

The judgment of the trial court is affirmed.

Affirmed.


author: NORTHCUTT, Justice.

text:
    R. Z. ABELL, Sr., Appellant, v. W. Leroy WAGGONER, Appellee.
    No. 7468.
    Court of Civil Appeals of Texas. Amarillo.
    May 17, 1965.
    Gordon Treadaway, Lubbock, for appellant.
    Anderson & Edwards, Lubbock, for ap-pellee.
   NORTHCUTT, Justice.

On March 19, 1963, R. Z. Abell, Sr., and Gene Barton entered into a lease contract under which Abell leased to Barton certain property located in Lubbock, Texas, to be used as a convalescent home. The contract provided that the lease was to begin ten days after approval of the premises as a nursing home by the City of Lubbock and the State of Texas and to end August 31, 1967, for an agreed rental of $800 per month to be paid by Barton to Abell. Barton was unable financially to carry on the business by himself and had made an agreement with W. Leroy Waggoner to furnish certain finances. Waggoner and Barton agreed to form a corporation to run the business. Waggoner placed $5,000 in the Plains National Bank of Lubbock in the name of “Poplar Grove Convalescent Home.” The lease contract provided for the payment by Barton of $1,600 for the payment of the first and last month’s rent. Barton requested Waggoner to issue a check payable to Abell but Waggoner refused until Barton brought the lease for Waggoner to read. After Waggoner checked the contract, he and Barton executed the check for $1,600 payable to R. Z. Abell, Sr., and the check was signed, “Poplar Grove Convalescent Home,” by Barton and Waggoner. The check was delivered to Abell’s attorney that drew the lease contract and was never presented to the bank for payment until the account was closed and Abell never requested the attorney to cash the same until after the account had been closed.

The lease contract provided as follows: “If Abell is unable to secure the approval of the premises as a nursing home within sixty (60) days from the date of this agreement, this contract shall have no further force and effect and the sixteen-hundred dollars ($1,600.00) shall be returned by Abell to Barton.” Abell failed to secure the approval of the premises as a nursing home within the sixty days from the date of the lease agreement. The check had not been cashed and Waggoner after the sixty days had passed stopped payment on the check and withdrew the money that was deposited in the name of “Poplar Grove Convalescent Home” and closed the account.

Sometime after the sixty days had passed, Barton secured a permit to operate the nursing home for a capacity of only thirty-one beds and went and discussed the matter with Waggoner. Waggoner at that time informed Barton that he was not interested in proceeding and was out of the matter completely. Shortly thereafter Barton turned the premises back to Abell.

Abell brought this action against both Waggoner and Barton to recover upon the $1,600 check. Barton wholly made default and judgment was granted in favor of Abell against Barton for the sum of $1,600 with interest thereon from date at the rate of six per cent per annum and for all costs of suit. Barton did not appeal from that judgment.

The case proceeded to trial as to the liability of Waggoner upon the check in question. The case was tried to a jury upon special issues. The jury found that Wag-goner agreed to finance Barton in the operation of the convalescent home; that Abell performed all of his obligations under the contract with Barton except that he failed to get the premises approved as a convalescent home within sixty days from the date of the contract; that Waggoner did not waive the sixty-days time limit for performance of the contract and that the agreement between Waggoner and Barton contemplated more than thirty-one bed permit allowed by the State of Texas. Judgment was entered upon the verdict of the jury that Abell take nothing by his suit as against Waggoner. From that judgment Abell perfected this appeal. Hereafter Abell will be referred to as appellant and Waggoner as appellee.

Appellant presents this appeal upon four points of error. The first point states the court erred in failing to render judgment for plaintiff against defendant (Waggoner) for amount of check. The remaining three points contend the court erred in submitting and/or rendering judgment on Special Issues Two and Three for the reason that such issues were not material issues in the case. Special Issue No. Two reads as follows :

“Do you find from a preponderance of the evidence that the Defendant Waggoner by his actions, if any, did not waive the sixty-day time limit for the performance of the contract between Plaintiff Abell and Defendant Barton ?”

Special Issue No. Three reads as follows :

“Do you find from a preponderance of the evidence that 'the- agreement between Defendant Waggoner and Defendant Barton contemplated more than a thirty-one bed permit allowed by the State of Texas?”

Appellant testified that he owned the building in question and had occupied it as a hospital for a number of years until he retired in 1957 and that he had forty-two beds. The evidence is undisputed that when the lease contract was entered into it was contemplated that the license when granted would be for more than thirty-one beds. Appellant testified: “I didn’t discuss it with anyone, as far as I remember, but if you had moved out of there and had fifty beds, why, I would have thought I could have had fifty when I went in there, you see.” The lease contract was between appellant and Barton. Waggoner was not a party to the lease. Waggoner refused to advance the $1,600 cheek until he read the lease agreement. The check was advanced upon the terms of the lease. Appellant and appellee never at any time had any agreement. The considerations, if any, for the issuance of the check by appellee were that appellant was to secure the approval of the premises as a nursing home within sixty days from the date of the lease agreement; and if appellant failed to do so, the lease contract was to be of no further force and effect. If the lease contract was of no further force and effect, there was no consideration for the $1,600 check. Appellant failed to comply with that condition. Consequently, the lease contract was of no further force and effect so far as appellee was concerned.

Failure of consideration is a matter of defense as against a person not a holder in due course. Section 28, Article 5933, Vernon’s Ann.Tex.Civ.St. Appellant was not a holder in due course. Delivery upon a condition or for special purpose only may always be shown as between the immediate parties. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948. In the case at bar before the obligation to pay the $1,600 was to arise, the appellant was to secure the approval of the premises as a nursing home within the sixty days, and appellee’s obligation did not arise since the condition was never performed. Williams v. Jones, 122 Tex. 61, 52 S.W.2d 256. There is nothing in this record to show appellee was to finance Barton only under the terms of the lease contract as originally contemplated. After the sixty days had passed, there is nothing to show appellee would agree to do anything. After the sixty days had passed, appellant stopped payment on the check and closed the bank account and refused to have anything further to do with the deal. Ap-pellee’s agreement was with Barton under the terms of the lease agreement as was in the contemplation of the parties that appellant was to secure the approval of the premises as a nursing home within the sixty days with a bed capacity of forty-two or more beds. After carefully considering all of appellant’s points of error, they are overruled.

Judgment of the trial court is affirmed.


author: BATEMAN, Justice.

text:
    Joseph SIDRAN, Appellant, v. Lawrence TANENBAUM, Appellee.
    No. 16472.
    Court of Civil Appeals of Texas. Dallas.
    March 5, 1965.
    On Rehearing May 14, 1965.
    Rehearing Denied June 11, 1965.

      Emil Corenbleth and Harold B. Berman, Dallas, for appellant.

      Jackson, Walker, Winstead, Cantwell & Miller, Jack Pew, Jr., and H. Dudley Chambers, Dallas, for appellee.
   BATEMAN, Justice.

This is an appeal from a summary judgment rendered against the appellant Joseph Sidran. The appellee Lawrence Tanenbaum sued for debt on two counts: (1) upon a New York judgment against appellant and (2), in the alternative, upon the promissory note forming the basis of the New York judgment. Appellant in his answer contended that the New York judgment was void because the New York court had no jurisdiction over appellant, and, as to the promissory note, that he had an offset in excess of the amount due thereon. He pled that a corporation known as Tanenbaum Textile Co., Inc. was indebted to him in excess of the amount due on appellee’s promissory note and that he had a right to offset this claim against the note because the corporation was the alter ego of appellee. He pled alternatively that appellee had agreed with him that he might offset all sums due him by the corporation against any sums due appellee.

The judgment appealed from does not show on its face whether it was based on the New York judgment or the promissory note. Appellant asserts in two points of error on appeal that (1) the court erred in holding that he had no right to contest the foreign judgment on jurisdictional grounds, and (2) the court erred in denying him the right to defeat appellee’s claim on the note by asserting his offset. We sustain the first point and overrule the second. Being of the opinion that appellee was entitled to summary judgment on the note, we affirm the judgment.

The authenticated copy of the New York judgment, attached to appellee’s amended petition, does not recite any service of process on appellant, but attached to appellee’s motion for summary judgment is the affidavit of one Gerald W. Benson that on September 18, 1963 he served the “summons, Notice of Motion for Summary Judgment, and Affidavit in Support Thereof in lieu of complaint, in action styled Lawrence Tan-enbaum vs Joseph Sidran in the Supreme Court of the State of New York, County of New York, upon the Defendant, Joseph Sid-ran, by delivering to and leaving with the said Defendant personally a copy of each of said papers.” The record contains nothing to identify the said Gerald W. Benson as a sheriff, or a constable, or a deputy of either, or even as a disinterested person. It appears without dispute that such papers were delivered to appellant in Dallas, Texas.

As this was the only “service”' shown by the record, the case falls within the general rule of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, and in the absence of a showing that appellant was served with official notice of the suit within the State of New York, or that service outside that state was authorized by some valid law, or that appellant had voluntarily entered his appearance in the New York court, we would be compelled to hold that the New York court was without power to render the judgment in personam against appellant.

It is true, as appellee argues, that the introduction of the foreign judgment made a prima facie case for him, casting the burden on appellant to establish lack of jurisdiction in the court to render it, Garman v. Reynolds, Tex.Civ.App., 284 S.W.2d 262, wr. ref., but here appellant met that burden by showing affirmatively by his affidavit that he was not served in New York and had not entered his appearance in the suit. The presumption of validity of the judgment is not conclusive but is rebuttable, and the judgment may be collaterally attacked by showing lack of jurisdiction. Mitchell v. San Antonio Public Service Co., Tex.Com.App.1931, 35 S.W.2d 140; W. T. Rawleigh Co. v. Little, Tex.Civ.App., 32 S.W.2d 214, wr. ref.; Autry v. Autry, Tex.Civ.App., 350 S.W.2d 233, wr. dism.; Cooper v. Newell, 173 U.S. 555, 19 S.Ct. 506, 43 L.Ed. 808; 30A Am.Jur., Judgments, p. 328, §262.

Appellee also argues that the service on appellant may have been sufficient under some New York law authorizing such service on nonresidents who do business within the forum. In the absence of pleading or proof of such a law, we must presume that the New York law is the same as our own. McCormick and Ray, Texas Law of Evidence, § 99. Our statute, Art. 2031b, Vernon’s Ann.Civ.St., provides, inter alia, for substituted service on nonresident defendants, in suits arising out of business transacted by them within the State of Texas, by serving the Secretary of State of Texas; but such statute does not provide for personal service on the defendant outside of Texas, and it does not authorize service of process by anyone other than a sheriff or constable. Rule 103, Vernon’s Texas Rules of Civil Procedure. Presuming the New York law to be similar, it is obvious that the attempted service on appellant without the State of New York, and by some individual not identified as an officer authorized by law to serve process, would be ineffective to vest the New York court with power to render the personal judgment.

We sustain appellant’s first point and hold that the record before us fails to show that the New York judgment had such validity as to sustain the summary judgment under attack here.

By his second point of error the appellant complains of the trial court’s refusal to recognize his claim against Tanenbaum Textile Co., Inc. as an offset to appellee’s suit on the promissory note. The only factual support of this position is appellant’s own affidavit, the pertinent parts of which are:

“To my knowledge and belief, Lawrence Tanenbaum is a chief executive officer of the Tanenbaum Textile Co., Inc., and I believe that he is the sole stockholder, and certainly has control of the corporation. He acts for the corporation completely, and in his actions concerning the business of the Tanenbaum Textile Co., Inc., you are unable to differentiate as to which action is for the corporation and which action is for the individual. To my knowledge all decisions of Lawrence Tanenbaum are the decisions of the corporation and he acts completely for them.
“In all of my dealings with the Tan-enbaum Textile Co., Inc. and with Lawrence Tanenbaum have been with the said Lawrence Tanenbaum personally. I made an agreement with him where I was to receive a commission for services that I would perform in selling merchandise which either belonged to him or to Tanenbaum Textile Co., Inc. It was my understanding with him that any and all sums of money which he leant to me personally were to be applied against the commissions that I was to receive by reason of this agreement that I had made with him personally and that I never differentiated the corporate entity from the individual in our dealings, nor did Mr. Tanen-baum ever indicate to me that there should be such a differentiation. Whenever we discussed the fact that we each owed each other money, we always talked about a day for an accounting and offsetting each other’s obligations to the other. Mr. Tanen-baum and his corporation now owe me $20,968.11 by reason of the agreement made with him.”

The principle contended for by appellant “is an exception to the general rule which forbids disregarding corporate existence or entity and is not to be applied unless it is made to appear that there is such unity that the separateness of the corporation has ceased and ‘the facts are such that an adherence to the fiction of the separate existence of the corporation would, under the particular circumstances, sanction a fraud or promote injustice.’” First National Bank in Canyon v. Gamble, 134 Tex. 112, 132 S.W.2d 100.

Having in mind the requirement of Rule 166-A(e), T.R.C.P., that supporting and opposing affidavits must “be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein,” we hold that appellant’s affidavit is insufficient to raise a fact issue material to the point in question. Nothing contained in it, which is not hearsay or otherwise inadmissible, even tends to prove such unity of interest and ownership that the separate personalities of the corporation and appel-lee no longer exist. Neither is there anything in the affidavit to suggest that a recognition of the separate corporate existence of Tanenbaum Textile Co., Inc., “would, under the particular circumstances, sanction a fraud or promote injustice.” As stated in Moody-Seagraves Ranch v. Brown, Tex.Civ.App., 69 S.W.2d 840, 844, wr. ref., “The corporate fiction cannot be disregarded, for there never was any fraud or wrong undertaken or intended.”

If the court were to permit appellant to offset the corporation’s alleged indebtedness to him against his liability to ap-pellee on the note, the practical effect would be to make appellee liable for the corporation’s debts. This is not sanctioned by the law unless there is “fraud or other misconduct sufficient to invoke the doctrine of es-toppel” ; and this is true even when all the stock belongs to one stockholder. Hake v. Dilworth, Tex.Civ.App., 96 S.W.2d 121, 124, wr. dism.

Even if appellant’s conjecture that appel-lee was the sole stockholder of the corporation were considered as a statement of fact, the separate existence of the corporation as an entity would not be thereby destroyed and this would not render appellee liable for the corporation’s debts. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, 224.

Moreover, appellant failed to establish even prima facie that he had a contract with appellee or the corporation, an essential element of his claim. His statement in the affidavit, that he made an agreement with appellee whereby certain commissions would be paid, is a conclusion; the affidavit does not contain facts upon which a court or jury might properly conclude that such an agreement was made, or that it was supported by consideration, or that appellant himself had performed it, or that appellee, in making such agreement, was acting in his own behalf and not for the corporation. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317; Dallas Railway & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377; Riggs v. Bartlett, Tex.Civ.App., 310 S.W.2d 690, wr. ref. n. r. e.; Federal Sign Co. of Texas v. Fort Worth Motors, Tex.Civ.App., 314 S.W.2d 878, no wr. hist.; Casanova v. Falstaff Beer, Tex.Civ.App., 304 S.W.2d 207, wr. ref. n. r. e.

In a supplemental brief appellant urges us to reverse the judgment because neither the original note sued on, nor a certified or sworn copy thereof, was put in evidence by affidavit or otherwise. The summary judgment was therefore rendered, he says, on the pleadings, which was erroneous because his general denial raised a fact issue as to whether appellee was then the owner and holder of the note, citing the very recent opinion of the Tyler Court of Civil Appeals dated January 14, 1965 in Alexander v. Houston Oil Field Material Co., Inc., 386 S.W.2d 540.

This question was not raised by any point of error on this appeal, as required by Rule 418, T.R.C.P., and cannot properly be considered by us. Wagley v. Fambrough, Tex.Civ.App., 163 S.W.2d 1072, affirmed Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478; Cruse v. Daniels, Tex.Civ.App., 293 S.W.2d 616; Colorado River Western Ry. v. Texas & New Orleans R. Co., Tex.Civ.App., 283 S.W.2d 768; Southwestern Fire & Casualty Co. v. Larue, Tex.Sup.Ct.1963, 367 S.W.2d 162.

Appellant did not deny the execution of the promissory note or its validity, or the asserted -fact of his indebtedness thereon, in any of his pleadings, his affidavit or his briefs in this court. The only defense he claimed was the right to offset. Since we have held that his affidavit in support of that defense is legally insufficient, it follows that the summary judgment against him on the note was correct and must be affirmed. Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, wr. ref.; Sessions Co. v. W. A. Sheaffer Pen Co., Tex.Civ.App., 344 S.W.2d 180, wr. ref. n. r. e.

Affirmed.

ON MOTION FOR REHEARING

The appellant has by our leave filed a second supplemental brief, pursuant to Rule 431, T.R.C.P., and the authorities cited in our opinion on rehearing in Minneapolis-Moline Co. v. Purser, Tex.Civ.App., 361 S.W.2d 239, 246, wr. ref. n. r. e. This brief contains a third point of error in which appellant says the trial court erred in rendering the summary judgment on pleadings alone and without support of any summary judgment evidence.

Appellant relies on Alexander v. Houston Oil Field Material Co., Tex.Civ.App., 386 S.W.2d 540, wherein it was held that in a suit on a promissory note a defendant’s answer containing a general denial raised a fact issue as to whether the plaintiff was the owner and holder of the note, and that a summary judgment for the plaintiff without any proof of that fact would be reversed. Since our opinion of March 5, 1965 was delivered the Supreme Court has refused the application for writ of error, “no reversible error,” in the Alexander case, and since that was the only point on which the case was reversed, the action of the Supreme Court must be construed as approving the holding of the Court of Civil Appeals on the point. We feel that the rule there announced should be applied here.

In this case there was no allegation in either the petition or the motion for summary judgment that appellee was the owner and holder of the note. At the hearing of the motion appellee did not offer the original note or any other evidence of his ownership thereof. This in our opinion brings the case within the rule of the Alexander case, and on the authority thereof we sustain the motion for rehearing. Accordingly, the judgment appealed from is reversed and remanded.

Reversed and remanded.


text:
    CONTINENTAL CASUALTY COMPANY, Appellant, v. Vernon CARLISLE, Jr., Appellee.
    No. 7460.
    Court of Civil Appeals of Texas. Amarillo.
    April 26, 1965.
    Rehearing Denied May 24, 1965.

      Evans, Pharr, Trout & Jones, Lubbock, for appellant.
    Splawn & Maner, Lubbock, for appellee.
   NORTHCUTT, Justice.

This is a suit brought by Vernon Car-lisle, Jr., for recovery of total disability benefits provided in two insurance policies issued to him by Continental Casualty Company. One policy was denominated RP Accident No. 9869346 and the other was denominated Accident and Health Policy No. 9869347. The main portion of the policies here involved is as follows:

“Total Disability. When, as the result of injury and commencing within thirty days after the date of the accident, the insured is wholly and continuously disabled and prevented from performing each and every duty pertaining to his occupation, the company will pay periodically the monthly indemnity stated in the schedule for the period the insured is so disabled, not to exceed twelve consecutive months. Subject to the ‘Maximum Period Total Disability Indemnity’ stated in the schedule and after the payment of monthly indemnity for twelve months as aforesaid, the Company will continue the periodic payment of monthly indemnity so long as the Insured is wholly and continuously disabled and prevented by reason of said injury from engaging in each and every occupation or employment for wage or profit for which he is reasonably qualified by reason of education, training or experience.”

The case was submitted to a jury upon special issues. In answer to the issues the jury found that Carlisle was injured on October 30, 1962; that the injuries sustained caused total incapacity so that Carlisle could not engage in his regular occupation as a moving van operator and that he was totally incapacitated so that he could not reasonably perform his duties as a moving van operator for a period of seventeen months. The jury found Carlisle’s injury on October 30, 1962, caused total incapacity from October 30, 1963, up until March 31, 1964, being the date of the trial, preventing him from performing any occupation for wage or profit taking into consideration his experience, training, and capabilities and that said capacity was caused solely by the injury received on October 30, 1962. Upon a verdict of the jury, judgment was granted in favor of Carlisle. From that judgment Continental Casualty Company perfected this appeal and will hereafter be referred to as appellant.

Appellant presents this appeal upon six points of error. Point One contends that there was no evidence to support the finding of the jury that Carlisle was totally incapacitated so that he could not reasonably perform his duties as a moving van operator for a period of seventeen months. Point Two is to the same effect only that such findings by the jury were contrary to the overwhelming weight of the evidence. Points Three and Four contend there was no evidence to sustain the verdict of the jury and that such finding by the jury was contrary to the overwhelming weight of the evidence that Carlisle’s injury had caused total incapacity since October 30, 1963. Points Five and Six contend there was no evidence to sustain the verdict of the jury and that such finding by the jury was contrary to the overwhelming weight of the evidence that Carlisle was totally incapacitated from performing any occupation for wage or profit from October 30, 1963, to March 31, 1964.

The undisputed evidence shows that Carlisle worked and drew good wages during the most of 1963 and some during the first of 1964. In determining the questions here involved as to the finding being contrary to the overwhelming weight of the evidence, we must consider all the evidence supporting the verdict and weighing it along with the other evidence in the case including that which is contrary to the verdict to determine whether the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust— this regardless of whether the record contained some evidence of probative force in support of the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. As to appellant’s contention of no evidence to support the jury verdict, we must consider only that evidence, if any, which viewed in the most favorable light supports the jury findings and must discard all evidence which would lead to a contrary result. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359.

It is stated in Metropolitan Life Ins. Co. v. Wann, 130 Tex. 400, 109 S.W.2d 470, 115 A.L.R. 1301 (opinion adopted by S.Ct.) as follows:

“No general rule can be announced governing the question of when one is totally disabled to pursue a gainful occupation. The term total disability is relative depending, among other things, upon the capabilities of the insured. No distinction is made by the courts between an accident policy and a life insurance policy containing a disability clause. An injury which might render an uneducated laboring man unable to pursue a gainful occupation might not impair at all the ability of a professional or business man to do so. Kemper v. Police & Firemen’s Ins. Ass’n (Tex.Com.App.) 44 S.W.(2d) 978; Winters Mutual Aid Association Circle v. Reddin (Tex.Com.App.) 49 S.W.(2d) 1095; Great Southern Life Ins. Co. v. Johnson (Tex.Com.App.) 25 S.W.(2d) 1093; Buis v. Prudential Ins. Co., 229 Mo.App. 190, 77 S.W.(2d) 127; Duhaime v. Prudential Ins. Co., 86 N.H. 307, 167 A. 269; Aetna Life Ins. Co. v. Person, 188 Ark. 864, 67 S.W.(2d) 1007.
“The evidence in this case raised a fact issue for the jury, and the contention that only a question of law is presented cannot be upheld.”

Appellant does not contend Carlisle received no injury nor does it contend that he was not incapacitated for a short time from October 30, 1962, to February 9, 1963. The evidence here relied upon by appellant to defeat the findings of the jury as to Car-lisle’s incapacity is based upon the fact that he worked most all of 1963 and a short time in 1964 and made good wages and from the further fact that he joined a bowling league and bowled twice in September and twice in October of 1963.

Carlisle testified in part as follows: Before going to work for North American Van Lines he took a physical examination by a doctor of his employer’s choice and worked for them from February 1962 until he was injured on October 30, 1962. His work for the North American Van Lines required lifting and handling heavy articles such as pianos, ice-boxes, and general household articles and he had no trouble in carrying on such work but was never able after being injured to perform such duties. At the time of his injury he was on his way from Laredo, Texas, to California and while straightening part of his load on the truck he fell from the truck to the ground, a distance of eight to ten feet and struck on his neck, shoulders and left arm. After being injured, he called a taxi and went to the hospital at Las Cruces where they gave him some pills as he didn’t think he was hurt. He went to the same hospital the next morning where he was X-rayed and given shots for pain that kept him easy for two days, as his legs were numb and his back, arm and shoulder were hurting awfully badly. After two days, he was transferred to the Methodist Hospital at Lubbock, Texas, where he was treated by Doctors Lewis and Dunn and was placed in traction and was treated by exercise, heat treatment and massage twice a day. He suffered all the time and has to take medicine to relieve the pain. At the time of the trial the doctor had him taking one-half grain morphine. He had never had any trouble with his back during the nine months he worked for North American Van Lines. He is not able to carry on the trucking and moving work since his injury because he cannot lift the articles he had to move and cannot climb and pack the furniture as was required and besides he could not drive or ride in a truck. His condition is growing worse. About three and one-half months after his injury he tried to keep books for a gin company and after about a week at that job the gin people wanted him to go out and sell fertilizer. It was so painful taking the fertilizer out to sell he could not stand the pain and after about sixty-five days he just could not stand the pain. He had been taking medicine ever since he was hurt and has had the family doctor to come out at night and give him shots so he could rest. After that he got a job to align front end of cars but there were two other men who did all the lifting. He was not working there anymore because he had gone as far as he could.

We have narrated this testimony of Mr. Carlisle rather than to give the “Question and Answer” for the purpose of saving space.

Other witnesses that had known Mr. Carlisle for several years testified as to his changed condition and knowing he had trouble getting in and out of a car, that he limped and had a hard time getting up and down or trying to stoop. Mr. Evans, a ginner, had known Carlisle ever since 1953 and worked with him and knew he was a good hand, one of the best, and knows that he limps now and had a hard time getting out of a car. Dr. Johns testified in December of 1962 he called on Mr. Carlisle, who was complaining of pain. At the request of Carlisle he gave him an injection of codeine and has okayed refills periodically. Dr. Johns further testified that since his first visit in December 1962 he had seen Carlisle and as a physician it was evident to him that Carlisle was suffering from debilitating disease that is progressive apparently. In defining what he meant by debilitating disease and progressive the doctor testified from his professional opinion that Carlisle had a ruptured herniated intervertebral disc that was the basis of his difficulty; then testified Carlisle was not able to pursue his normal vocation and seemed to the doctor Carlisle was getting worse. Mrs. Carlisle testified as to his condition and inability to sleep and having to be rubbed and used heat-treatment and take sedatives in order to rest and his general condition and inability to work but that they just had to have the money to live on. There was other testimony not here related. The fact that he continued to work after the injury does not preclude a finding by the jury of total and permanent incapacity under the circumstances of this case. Jefferson Standard Life Ins. Co. v. Curfman, Tex.Civ.App., 127 S.W.2d 567 (writ dismissed); Sovereign Camp of the Woodmen of the World v. Douglas, Tex.Civ.App., 172 S.W.2d 982 (writ dismissed).

To hold there is no evidence to sustain the verdict of the jury we would be compelled to hold the above evidence as outlined was not true or had no bearing on the issues involved. In other words, we may consider only that evidence, if any, which viewed in the most favorable light supports the jury findings and we must disregard all evidence which would lead to a contrary result. Biggers v. Continental Bus System, supra; Dallas Transit Company v. Young, Tex.Civ.App., 370 S.W.2d 6 (N.R.E.).

To hold the verdict is contrary to the overwhelming weight of the evidence we would have to hold that the fact Carlisle worked and bowled a few games is such strong evidence as controlling in this case. But we may not consider that evidence alone but must consider all of the evidence supporting the verdict and weighing it along with the other evidence in the case including that which is contrary to the verdict. As we see this case, the only evidence relied upon by appellant herein as being contrary to the verdict is the fact as to Carlisle’s work during 1963 and also bowling a few games. In Re King’s Estate, supra.

A policy requiring payment for total disability ordinarily is not one of indemnity against loss of income but against loss of capacity to work. Sovereign Camp of the Woodmen of the World v. Douglas, supra; Cooley’s Brief on Insurance (2d Ed.) 5536. Necessity sometimes drives people to do things they prefer not to do and are not able to do. We are not able to say under the facts of this case the jury was wrong in reaching the verdict it did. Neither are we willing to hold Mr. Carlisle is not totally disabled.

Judgment of the trial court is affirmed.


text:
    Casey JONES, Appellant, v. Jewel Inez JONES, Appellee.
    No. 7474.
    Court of Civil Appeals of Texas. Amarillo.
    May 24, 1965.

      Key, Carr & Clark, Lubbock, for appellant.
    Chappell & McFall, Lubbock, for appel-lee.
   NORTHCUTT, Justice.

Casey Jones, as plaintiff, filed suit for divorce against his wife, Jewel Inez Jones, defendant below, who subsequently cross-filed against him. The court set the case for non-jury trial for March 19, 1964. Defendant’s attorney was informed of such trial setting. Defendant’s attorney replied by letter dated March 13, 1964, informing plaintiff’s attorney that defendant had decided to drop her divorce case against the plaintiff. The case did not actually come on for hearing until March 21, 1964, at which time the plaintiff and his attorney appeared, but neither the defendant nor her attorney appeared. After the hearing on March 21, 1964, the court on March 26, 1964, entered judgment granting the plaintiff a divorce; the care, custody and control of the minor child of the plaintiff and defendant ; and that certain community property which had no equity should be the separate property of the plaintiff.

On April 23, 1964, the defendant filed her motion for new trial and raised the question of lack of notice of setting of March 19, 1964, and asserted meritorious defenses to certain actions of the court. The court by order filed April 24, 1964, set the motion for a new trial for hearing on May 1, 1964. The plaintiff on April 29, 1964, filed his motion to strike the motion for new trial contending since the motion for new trial was not filed within ten days from the date of the judgment and that thirty days had passed since rendition of the judgment of March 26, 1964, without the judgment having been set aside, the judgment was final. On May 7, 1964, the court filed its order granting defendant a new trial and set the hearing for June 22, 1964. Plaintiff duly excepted to the ruling of the court in granting a new trial and gave notice of appeal.

On June 22, 1964, prior to hearing the new trial, plaintiff filed his plea in abatement and motion to stay, reciting that the motion for new trial was not filed within ten days after the rendition of judgment and that the court had not set aside the judgment of March 26, 1964, within thirty days and, therefore, the judgment of March 26,1964, was a final judgment and the court was without jurisdiction to hear any further proceedings in the case. On June 22, 1964, prior to the hearing of the new trial, the court overruled plaintiff’s plea in abatement and motion to stay, to which ruling plaintiff excepted and gave notice of appeal.

At the new trial hearing on June 22, 1964, the plaintiff was granted a divorce from the defendant. The custody and control of the minor child of plaintiff and defendant was granted to the defendant with visitation privileges granted to the plaintiff and a division of community property was made, but final judgment was entered thereon July 10, 1964. Plaintiff and cross-defendant, Casey Jones, duly excepted to the judgment and gave notice of appeal and perfected this appeal.

Appellant presents this appeal upon two assignments of error as follows:

“POINT OF ERROR I. THE DISTRICT COURT ERRED IN GRANTING ON MAY 7, 1964, DEFENDANT’S MOTION FOR NEW TRIAL, FILED ON APRIL 23, 1964, WHICH ACTION SET ASIDE THE JUDGMENT OF DIVORCE ENTERED ON MARCH 26, 1964, BECAUSE THE DISTRICT COURT WAS TOTALLY WITHOUT JURISDICTION OF THE CASE, SINCE THE MOTION FOR NEW TRIAL WAS NOT FILED WITHIN TEN DAYS AFTER THE RENDITION OF THE ORIGINAL JUDGMENT AND THE JUDGMENT WAS NOT SET ASIDE WITHIN THIRTY DAYS AFTER RENDITION, BOTH AS REQUIRED BY RULE 320 and RULE 329b, TEX. RULES CIV. P.
“POINT OF ERROR II. THE DISTRICT COURT ERRED IN ENTRY AND RENDITION OF THE JUDGMENT OF JULY 10, 1964, BECAUSE A PRIOR, UNAP-PEALED FINAL JUDGMENT HAD BEEN PREVIOUSLY ENTERED AND RENDERED BY THE COURT ON MARCH 26, 1964, AND HAD NOT BEEN SET ASIDE WITHIN THIRTY DAYS NOR A MOTION FOR NEW TRIAL FILED WITHIN TEN DAYS, BOTH AS REQUIRED BY RULE 320 and 329b, TEX. RULES CIV. P., and THEREFORE THE COURT NO LONGER HAD JURISDICTION OF THE CASE.”

The object of a motion for new trial is to point out to the trial court where he had' erred so that he may have opportunity to review his decisions and, if need be, correct them. Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270. There is nothing brought forward in this record to show the court committed any error in the original hearing. “A motion for new trial is not a vehicle through which the case may be tried over or tried differently.” Crossley v. Crossley, Tex.Civ.App., 306 S.W.2d 388.

It is stated in Kelly v. Wright, 144 Tex. 114, 118 S.W.2d 983, as follows:

“No rule of law is better settled than the one that a court of equity will not set aside a final judgment in a former action when the failure to have a full and fair presentation of the case therein resulted from the negligence, inadvertence or mistake either of the party seeking the relief or his counsel. Brownson v. Reynolds, 77 Tex. 254, 13 S.W. 986; Johnson v. Templeton, 60 Tex. 238; Smith v. Ferrell, Tex.Com.App., 44 S.W.2d 962; Harding v. W. L. Pearson & Co., Tex.Com.App., 48 S.W.2d 964; Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, writ refused; Brannen v. City of Houston, Tex.Civ.App., 153 S.W.2d 676, writ refused.”

Rule 320, T.R.C.P., concerning motions for new trial, provides as follows:

“New trials may be granted and judgment set aside on motion for good cause, on such terms as the court shall direct. Each such motion shall be in writing and signed by the party or his attorney and shall specify each ground on which it is founded, and no ground not specified shall be considered.”

Rule 329-b, Section 1, provides: “A motion for new trial when required shall be filed within ten (10) days after the judgment or other order complained of is rendered.” Section 5 of Rule 329-b is as follows:

“Judgments shall become final after the expiration of thirty (30) days after the date of rendition of judgment or order overruling an original or amended motion for new trial. After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law. The failure of a party to file a motion for new trial within the ten (10) day period prescribed in subdivision (1) of this rule shall not deprive the court of jurisdiction to set aside a judgment rendered by it, provided such action be taken within thirty (30) days after the judgment is rendered. The filing of a motion for new trial after ten (10) days have expired and before thirty (30) days have expired since the rendition of the judgment shall not operate to extend the court’s jurisdiction over the judgment for a period of more than thirty days from the date of the rendition of judgment.”

In the original hearing the court on March 26, 1964, granted the plaintiff (appellant here) a divorce from the defendant (appellee here). On April 23, 1964, the defendant (appellee here) filed her motion for new trial which was after ten days had expired and before thirty days had expired after the rendition of the judgment. Consequently, the original judgment became final thirty days after its rendition, since the court did not act on appellee’s motion for new trial until after thirty days had expired from the date the original judgment had been rendered. We sustain appellant’s two points of error.

It is appellee’s contention the court did not err because the court considered her motion as a bill of review. We cannot agree with that contention. There is nothing in this record to show the court treated her motion for new trial as a bill of review. The record shows it was a new trial and was so treated; but should we be wrong in that assumption, we do not believe the ap-pellee by her pleadings properly brought the matter as a bill of review. There is nothing in the record to even indicate that appellant did anything to prevent appellee from appearing and presenting any defense she might have had in the original hearing. Appellee through her attorney was notified of the setting of the original case. The court was informed through appellee’s attorney that she did not care to proceed in the case. It is stated in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, as follows:

“Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Garcia et al. v. Ramos et al., Tex.Civ.App., 208 S.W.2d 111, er. ref. Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, these essentials have been uniformly recognized by our courts; therefore, bills of review seeking relief from judgments 'are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted’; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done. Harding v. W. L. Pearson & Co. et al., Tex.Com.App., 48 S.W.2d 964. As said by the Supreme Court of California, 'Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice.’ Pico v. Cohn et al., 91 Cal. 129, 25 P. 970, 971, 27 P. 537, 13 L.R.A. 336, 25 Am.St.Rep. 159.”

See also Johnson v. Potter, Tex.Civ.App., 384 S.W.2d 747.

Since the order of the trial court granting a new trial was more than thirty days after the original divorce was rendered, the original judgment became final and such order was void and all actions taken by the court thirty days after March 26, 1964, (being the date the original judgment was rendered) are void. Judgment of the trial court is reversed and judgment here rendered declaring the order granting a new trial and the granting of the divorce on July 10, 1964, are void and of no force and effect.