author: NYE, Justice.

text:
    Harry P. HORNBY, Jr., Individually and d/b/a The Uvalde Leader-News, Appellant, v. Curtis P. HUNTER, Appellee.
    No. 81.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 3, 1964.
    Rehearing Denied Dec. 31, 1964.

      John A. Mobley, of Kleberg, Mobley, Lockett' & Weil, Corpus Christi, for appellant. '
    William Brode Mobley, Jr., Corpus Christi, for appellee.
   NYE, Justice.

This is a libel suit on appeal from an order overruling a plea of privilege. The appellee Curtis H. Hunter ' instituted this suit against Harry P. Hornby, Jr., the appellant, individually and d/b/a The Uvalde Leader-News, for damages, alleging that he had been libelled by the publication of an article in the Uvalde Leader-News, a newspaper published bi-weekly by the appellant. Hunter is a resident of Nueces County, Texas, and the appellant is a resident of Uvalde County, Texas, at which place he publishes the Uvalde Leader-News. The suit was filed in Nueces County, Texas.

The news story which forms the basis of Hunter’s suit was, according to the appellant, a report made to the newspaper by a deputy sheriff of Uvalde County. The article printed on the front page of the paper reads as follows:

“STOLEN CAR FOUND IN SABIN-AL
“Clarence ■ Large, Deputy Sheriff of Uvalde County, reported that a stolen 1959 Cadillac was discovered on the Jack Griffin ranch, five miles northeast of Sabinal, Saturday, October 5.
“The car was stolen in Corpus Christi according to Large. The lawman reported that he and Texas Ranger Levi Duncan were checking the area when they discovered the automobile. They radioed to their headquarters in Uvalde to see if the car had been stolen and received an answer, from the Hondo Sheriff who was monitering the call. It appeared that the car had been stolen and that a warrant for C. H. ‘Curly.’ Hunter of Corpus Christi had been issued in connection with the theft.
“Hunter and another man, A1 Smith, had previously leased the pasture where the car was found. The seven room house on the lease was well stocked, according to Deputy Large, with food, ammunition, a radio and TV set.”

■ Hunter filed a controverting affidavit contending that he is entitled to maintain his suit in Nueces County against the appellant by virtue of the provisions of Exception No. 29 of Article 1995, Vernon’s Ann.Tex.St. This imposes upon Hunter the burden of proving that a cause of action for libel in fact accrued in his favor. Perry v. Donaho, Tex.Civ.App., 358 S.W.2d 253 (1962); Express Publishing Company v. Gonzalez, Tex.Civ.App., 326 S.W.2d 544 (1959, wr.dism.) ; Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732 (Com.App.1942, Opinion adopted by Sup.Ct.); A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939). We hold that appellee Hunter has met this burden.

The trial court filed findings of fact and conclusions of law as follows: That Hunter is a resident of Nueces County, Texas, and was a resident of said County on October 13, 1963, the date the article appeared; that the appellant is a resident of Uvalde County, Texas, and is doing business as and is the owner of the Uvalde Leader-News which is a locally owned, independent newspaper in said County; that the newspaper has a circulation of around 3900 copies which extends into South Texas and into Nueces County; that the appellant published the article set forth above; that C. H. “Curly” Hunter was identified as being the person, and the only person, to whom said article was referring; that the 1959 Cadillac automobile referred to in said article had been in the custody, control and possession of Hunter and his wife for about a year preceding the publication; that Hunter did not steal the automobile referred to in the article and that no complaint had been filed and no warrant issued for the arrest of C. H. “Curly” Hunter for the theft of a 1959 Cadillac automobile in Corpus Christi, Texas. The court concluded that the article alleging and imputing the theft of the 1959 Cadillac automobile by Hunter is not true and that the article is defamatory and libelous per se.

The appellant raised six points upon which the appeal is based. The appellant complains that the trial court erred in concluding that the article in question was defamatory and libelous per se for the reason that there is no evidence to support the same, and that Hunter failed to prove that he suffered any damage by reason of such publication. The appellant admits that there was no indictment pending in Nueces County against C. H. “Curly” Hunter for the theft of a Cadillac automobile. Appellant argues that the article doesmot state that Hunter stole said automobile but only •relates to the fact that a warrant had been issued against Hunter of Nueces County. Appellant proved that there was pending an indictment against “Curly” Hunter for receiving and concealing stolen property but it was developed in the testimony that the complaint did not involve an automobile. In view of our holding herein, the indictment concerning another criminal offense remote and unconnected with the publication before this Court would not be a defense to the libel published even though the offenses are of a similar character. Art. 5431, V.A.T.S.; Herald News Co. v. Wilkinson, 239 S.W. 294 (Tex.Civ.App.1922, Dism. w.o.j.); 36 Tex.Jur.2d 340, § 54.

The article begins with the headline which states “Stolen Car Found in Sabi-nal.” The article goes on to say that: “It appeared that the car had been stolen and that a warrant for C. H. ‘Curly’ Hunter of Corpus Christi had been issued in connection with the theft.” It is not necessary that the publication of a charge of violating a criminal statute be made in a technical manner the same as might be required of an indictment. It is sufficient on reading the article that an ordinary person would draw a reasonable conclusion that the complaining party was charged with a violation of some criminal law. Easley v. Express Publishing Co., 299 S.W.2d 782 (Tex.Civ.App.1957, ref. n. r. e.); 36 Tex.Jur.2d 292, § 8. The trial court took judicial knowledge that the venue statute concerning felony theft of an automobile in this case would be filed in Nueces County. The Assistant District Attorney for Nueces County testified that after checking his records concerning the theft of a 1959 Cadillac automobile that there was no complaint or warrant issued against C. H. “Curly” Hunter for the theft of a 1959 Cadillac automobile.

We hold that the subject article does impute to Hunter the commission of a crime for which punishment by imprisonment in jail or the penitentiary may be imposed and is, therefore, libelous per se. Belo v. Fuller, 84 Tex. 450, 19 S.W. 616 (1892) ; Pridemore v. San Angelo Standard, Inc., 146 S.W.2d 1048 (Tex.Civ.App.1941, wr. dism., jud. cor.) ; Warren v. Hill, 77 S.W.2d 322 ; 36 Tex.Jur.2d 288, § 7. It is not necessary to prove actual damages where the words used are libelous per se. The law presumes actual damages. Bell Pub. Co. v. Garrett Engineering Co., 141 Tex. 51, 170 S.W.2d 197 (Tex.Com.App.1943); Maass v. Sefcik, 138 S.W.2d 897 (Tex.Civ.App.1940) ; Macfadden’s Publications v. Turner, 95 S.W.2d 1027 (Tex.Civ.App.1936) ; Davila v. Caller-Times Publishing Co., 311 S.W.2d 945 (Tex.Civ.App.1958) ; 36 Tex.Jur.2d 392, § 93. Appellant, even though he may have been innocent and made a mistake in the publication, is nevertheless liable for actual damages. Wortham-Carter Pub. Co. v. Littlepage, 223 S.W. 1043 (Tex.Civ.App.1920). Appellant’s points 5 and 2 are overruled.

Appellant’s fourth point complains that the trial court erred in finding that the 1959 Cadillac automobile referred to in the article had been in the custody, control and possession of Hunter and his wife for about a year preceding the publication for the reason that there is no evidence to support the same. Appellant contends that the article refers to the fact that Deputy Large discovered the automobile on October 5th and that appellant testified that the 1959 Cadillac was taken to Sabinal on the 10th or 11th of October and, therefore, Hunter did not prove by acceptable evidence that he ,was either the owner of a Cadillac or that the car referred to in the article was the same car that was sent to Sabinal five or six days later. It is not important as to whom the 1959 Cadillac automobile belonged, or whether or not Hunter had the vehicle in Sabinal on the occasion in question. This is not the ultimate question of libel. Even so, Hunter testified that he had driven this 1959 Cadillac for a year and a half; that he had driven it back and forth to the ranch many times; that for this year and a half period it was in his custody and in the custody of his wife; that the car on the lease at Sabinal was a 1959 Cadillac automobile and that he had had this automobile at the ranch prior to the date that the newspaper article was published; and that it had been there many times. Appellant’s fourth point is overruled.

Appellant argues in another point that the appellee Hunter failed to prove that the printed matter complained of was ever read. Mrs. Harry P. Hornby, Jr., wife of the defendant, testified that the Uvalde Leader-News was published twice a week; that approximately 4100 copies are published and that they have a circulation of approximately 3900; she testified that several companies actually subscribed to their paper in Nueces County, Texas; that the paper printed on Sunday, October 13th, contained the article complained about and that it was circulated in South Texas and in Nueces County. We hold that a libel committed by a newspaper publication is accomplished when the publication goes into circulation. It is not necessary to prove that the article was read as that can be presumed. 53 C.J. S. Libel and Slander § 82, p. 133 ; Brian v. Harper, 144 La. 585, 80 So. 885.

Appellant takes the position that the article complained of, not being his original composition but being a report from the Deputy Sheriff Clarence Large, brings it within the rule of qualified privilege under Article 5432, V.A.T.S. Appellant contends that this was a matter of public concern, published for general information and that so long as the report was an accurate statement, furnished by a public official, there should be no liability regardless of whether in fact the statements of the

official are true or false. Citing Sciandra v. Lynett, d/b/a Scranton Times, 409 Pa. 595, 187 A.2d 586 (1963). We recognize that there is involved a fundamental conflict between two competing interests, one, the interest of an individual and his right to remain undamaged in his reputation in the community as a result of any libelous statements with reference to him, and the other the fundamental principle involved with the other competing interest, the right of a free press to carry on its business in an ordinary fashion in a businesslike way and to disseminate the news and to publish and circulate that news without fear or restraint so far as reporting accurately, fearlessly and completely. Hogan v. New York Times Company, D.C., 211 F.Supp. 99 (1962). However, a false statement of fact, concerning an individual even if made as a result of communication from a public official is not privileged 'as a fair comment upon matters of public concern. Davila v. Caller-Times Publishing Company, supra; A. H. Belo & Co. v. Looney, 112 Tex. 160, 246 S.W. 777; Bell Pub. Co. v. Garrett Engineering Co., supra; Moore v. Leverett, 52 S.W.2d 252 (Tex.Com.App.) ; Jenkins v. Taylor, 4 S.W.2d 656 (Tex.Civ.App.) ; Houston Press Co. v. Smith, 3 S.W.2d 900 (Tex.Civ.App.) ; Ferguson v. Houston Press Co., 1 S.W.2d 387 (Tex.Civ.App.), affirmed 12 S.W.2d 125 (Tex.Com.App.); 33 Am.Jur. 164; 110 A.L.R. 412 (Annotation) ; 27 Tex.Jur. 670.

Whether or not the appellant committed the publication with or without malice is of no consequence in the case before us, for the reason that the appellee having proved a case of libel against the appellant, would be entitled to recover actual damages even though the publication was without malice. The case was properly filed in the county of the residence of the plaintiff Hunter. Art. 1995, § 29, V.A.T.S.

The judgment of the trial court overruling the plea of privilege, is affirmed.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY, Appellant, v. Anacleto ESCALERA, Appellee.
    No. 14288.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 25, 1964.
    Rehearing Denied Dec. 30, 1964.

      Clemens, Knight, Weiss & Spencer, San Antonio, for appellant.
    Rudy Rice, Peter N. Plumb, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is a workmen’s compensation case which was tried to a jury and resulted in judgment for total and permanent disability. Anacleto Escalera is the injured employee, Union Stock Yards, the employer, and St. Paul Fire & Marine Insurance Company, the insurance carrier. This appeal is by the insurance carrier.

Appellant’s first complaint is that the trial court erred in overruling appellant’s objections to Special Issue No. 18. This issue related to whether or not the •Union Stock Yards, through its agents or representatives, received notice of Esca-lera’s accidental injury of May 11, 1961, if any, within thirty days from May 11, 1961. The jury answered “Yes”. Appellant’s objections were:

“To Special Issue No. 18 because it omits an identification of the injury described in the Plaintiff’s notice and claim to the Industrial Accident Board and his petition in this suit.
“Defendant objects to Special Issue No. 18 because it is erroneous in failing to add, after the words ‘accidental injury’, ‘lifting a pen gate to close it’, because the issue as now submitted would allow the jury to give an affirmative answer based on evidence of the recurrence of back trouble which the employer did know of, rather than the accident described in the Industrial Accident Board’s notice and claim and Plaintiff’s petition.”

Appellee’s claim, filed with the Industrial Accident Board on September 6, 1961, and his petition, alleged an injury on May 11, 1961, when “he was penning cattle & was trying to get a dragging pen gate to close ; as he lifted the pen gate to close it in a hurry, he injured his back, neck, legs, head & body generally, & this injury aggravated, accelerated, precipitated, incited a previous condition in his back which he had on or about December 17, 1957, when he injured his back, neck, head, & body generally by falling from a boxcar onto a concrete ramp while unloading the boxcar.” Appellant denied that it, or appellee’s employer, had any notice of accidental injury in the course of employment within thirty days of May 11, 1961, and further denied any claim for compensation had been filed with the Industrial Accident Board concerning the December 17, 1957, accident within six months thereafter. Appellee testified that he guessed he notified his foreman, J. M. Thompson, of hurting his back on the gate. J. M. Thompson testified that appellee, in the spring of 1961, told him his back was bothering him from an old injury but did not tell him he hurt his back lifting or closing a gate. Dan Crutchfield, yard manager at Union Stock Yards, testified that he was in charge of reports of on-the-job accidental injuries at the stock yards. As to any trouble appellee had in May, 1961, Crutchfield stated “It was reported to me that he had trouble straightening up after stooping over, and needed assistance or something.” It was never reported to Crutchfield that appellee hurt his back closing a gate.

Dr. Waldo S. Luedemann testified he was Company doctor for Union Stock Yards and first treated appellee for the injury of December 17, 1957, when Escalera fell, striking his lower back on the edge of a dock. In April, 1960, Dr. Luedemann saw appellee for pain in his back — “he stated he had experienced pain in the back from time to time ever since his original injury.” Dr. Leudemann saw him on May 12, 1961, and recorded at the time: “Chief complaint, severe back pain. Present illness recurring back pain. While taking a shower at the stock yards, couldn’t straighten up. My examination was incomplete at that time because he had a lot of severe muscle spasm in his lower back and was unable to straighten up, and I gave him some tablets for pain, told him to sleep on a board and apply moist heat and return in three days for examination.”

The trial court submitted the following special issue on the notice question:

“Question No. 18: Do you find from a preponderance of the evidence that Union Stock Yards, through its agents or representatives, received notice of A. Escalera’s accidental injury of May 11, 1961, if any, within 30 days from May 11, 1961?”

The trial court overruled appellant’s objections to this issue and appellant contends that this action of the trial court was reversible error. We do not agree’. Sec. 4a of Art. 8307, Vernon’s Ann.Civ. Stats., provides in part as follows: “Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this ■ law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of the injury * * Appellant contends that there were three possibilities : first, the jury might have thought that Issue No. 18 related to the return of pain from a former back injury, or the inability to straighten up after, taking a shower, or to the injury while lifting the pen gate. The simple returning of pain from a former back injury, or claimant’s inability to straighten up after taking a shower were not injuries, the only injury alleged was received while lifting a pen gate. The jury had already found that ap-pellee had sustained an injury on May 11, 1961, and that it was an accidental injury. The term “accidental” and “injury” had been fully defined by the court, and from the pleadings and the evidence, the jury, no doubt, understood that the entire lawsuit was based upon the alleged injury occasioned by the lifting of the pen gate. Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280; Texas Employers Ins. Ass’n v. Henthorn, Tex.Civ.App., 240 S.W.2d 392.

Appellant next contends that the trial court committed reversible error in overruling appellant’s motion in limine requesting that the number and amount of compensation payments recoverable under the workmen’s compensation law not be referred to before the jury. We overrule this contention. Before the overruling of this motion in limine could constitute reversible error at least two things must happen; first, the matter sought to be suppressed must arise during the trial, and the party who originally urged the motion in limine must make timely objection. In the case at bar appellee did ask Dr. Leudemann the question, “and you likewise know that the maximum amount that a person can get is 401 weeks at $35.00 a week, you know that don’t you?” to which the doctor answered, without any objection, in effect “No.” Thus the overruling of the motion in limine to suppress did not constitute reversible error. Hartford Accident & Ind. Co. v. McCardell, 369 S.W.2d 331 (Tex.1963).

Appellant next contends that the trial court committed reversible error in overruling its motion for a new trial because appellee’s attorney repeatedly stated to the jury that appellee could only recover “limited compensation” and that the maximum recovery was for only 401 weeks, thereby seeking to induce the jury to make findings of total permanent incapacity in order to recover such “limited compensation.” Appellee contends that these matters were in evidence and therefore properly commented upon, but in this he is mistaken. The mere asking of a question which is answered “No” does not establish any fact. Attorney in his argument referred to the limited compensation that could be recovered by appellee, and that he could only recover 60% of $35.00 for 401 weeks. The first time such argument was made the trial judge sustained appellant’s objection, and the second time the trial court not only sustained appellant’s objection to the remarks but instructed the jury not to consider them. We are unable to say from the entire record that these remarks and arguments to the jury were of such harmful nature as to require a reversal of the judgment, especially in view of the fact that the trial judge instructed the jury not to consider those remarks. St. Paul Fire & Marine Ins. Co. v. Foster, Tex.Civ.App., 375 S.W.2d 355; Traders & General Ins. Co. v. Smith, Tex.Civ.App., 311 S.W.2d 91; Texas Emp. Ins. Ass’n v. Logsdon, Tex.Civ.App., 278 S.W.2d 893.

By its fourth, fifth and sixth points appellant contends that the evidence is insufficient to support the jury’s finding that appellee was totally and permanently incapacitated beginning May 12,1961. Appel-lee originally filed two suits, one based upon the gate lifting incident on May 11, 1961, and the other on a “cow butting incident” in October, 1962. These two suits were consolidated and tried as one suit. There were conflicting allegations, which resulted in appellee’s abandoning the “cow butting incident” and relying entirely upon the gate lifting incident. When appellee injured his back in lifting the gate he quit work for some four days and then returned to work. He had a large family and said it was necessary for him to work even though he was suffering with great pain in his back. He often worked overtime. After the “cow butting incident” he quit work and has never worked since. There were three doctors who testified in this case, as well as several lay witnesses. There were conflicts and contradictions in the testimony, and it was the duty of the jury to consider these conflicts and contradictions and determine what facts had been established. We have examined the evidence and find it sufficient to support the findings of the jury.

The judgment is affirmed.


author: GREEN, Chief Justice.

text:
    H. ROUW COMPANY, Appellant, v. GAYLORD CONTAINER DIVISION OF CROWN ZELLERBACH CORPORATION, Appellee.
    No. 88.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 25, 1964.
    Rehearing Denied Dec. 31, 1964.
    Sid L. Hardin, Edinburg, for appellant.
    J.W. Patterson, Jr., of Cox & Patterson, McAllen, for appellee.
   GREEN, Chief Justice.

Appeal is from a summary judgment for appellee, plaintiff below, on a promissory note, which judgment also refused relief to appellant, defendant below, on its cross-action. We reverse and remand.

Appellee does not deny that a genuine issue of fact exists as to failure of consideration for the original indebtedness on open account. The question before us is whether, under the summary judgment “evidence”, it is established as a matter of law that appellant has waived its defense of failure of consideration.

In passing upon the merits of this appeal, we shall be guided by the fundamental rules of summary judgments, that all doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party (appellee), and that the opposite party (appellant) is entitled to the benefit of every reasonable inference which can properly he drawn in its favor. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233; Bolin v. Tenneco Oil Co. et al., Tex.Civ.App., 373 S.W.2d 350, writ ref. n. r. e. Where in this opinion we discuss certain facts of the case, we do not intend to say that such matters have been established as actually true, since courts in summary judgment proceedings do not pass upon the credibility of the witnesses or the truth of matters stated in sworn pleadings or affidavits, but consider only whether genuine issues of material facts are raised by the record. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

In 1955, appellee sold and delivered to appellant on open account a large number of cardboard cartons to be used by appellant in its business of packing and shipping perishable vegetables. According to appellant’s sworn pleadings and affidavit, and not denied in the record by appellee, the cartons delivered were not as ordered, were defective in size and tensile strength so that they did not comply with carriers requirements in the shipment of perishable vegetables, and many were delivered too late to be of any use to appellant. Because of their defective condition, appellant was .unable to use them, and the cartons are still in appellant’s warehouse in the same condition as when delivered by appellee. Appellant' has on many occasions tendered them back to appellee, and still tenders them, but appellee has refused to accept them.

In August, 1956, appellant, with full knowledge of the facts concerning the cartons, executed and delivered to appellee in payment for said cartons three notes totaling $18,148.62. Some payments were made on these notes, so that in July, 1962, the amount was reduced to $17,138.62, and at that time appellant executed the note here sued on in that amount in renewal of the three notes of August, 1956. Appellant in its sworn answer to the motion for summary judgment and by affidavit of H. Rouw, its president, states that during this entire period, including the time of the execution of the first three notes, Rouw was vigorously protesting the consideration for the notes, and insisting either that ap-pellee take back the cartons in payment of the debt, or exchange new cartons meeting appellants’ requirements in the packing and shipping of perishable vegetables for the worthless ones. At the time of the execution and delivery of the note here sued on, according to appellant’s sworn pleadings and Rouw’s affidavit, appellee received said note knowing of the complaints about the cartons, and knowing that appellant expected a satisfactory settlement to be made on the note by an exchange of usable cartons for the bad ones.

In addition to its sworn plea of failure of consideration, appellant filed a cross-action in answer to appellee’s petition. In this pleading, filed defensively in the nature of a counterclaim or set-off in the event ap-pellee should recover judgment on the note, appellant specifically plead that the 1962 note, and also the 1956 notes, were signed and delivered by it in view of an express understanding between appellant and appellee that a satisfactory settlement would be made between them, and that appellee would accept a return of the old cartons in exchange for cartons meeting the requirements of appellant in the shipment of perishable vegetables. A breach of this agreement is alleged, by reason of which it is stated that appellant will suffer damages in the amount that it may have to pay for cartons which have no value to appellant; and the pleading prays for damages for whatever sum appellee may recover on the note. A denial of any fight of appellant to have a trial on the merits of this cross-action was included within the terms of the summary judgment.

In support of the summary judgment, appellee contends that when appellant executed and delivered the notes in August, 1956, with full knowledge of the defects in the merchandise purchased the year before, and again in July, 1962, when appellant executed the note sued on in renewal of the balance due on the 1956 notes, with full knowledge of all facts alleged in defense, appellant waived the defense of failure of consideration as a matter of law.

As authority for its position, appellee relies upon the holding of the Supreme Court of Texas in Hunter et al. v. Lanius et al., 82 Tex. 677, 18 S.W. 201, and on subsequent cases quoting and following that decision. We quote from Hunter v. Lanius, the rule depended upon by appellee as follows:

“Where one executes an obligation in renewal of a note claimed by the holder to be valid, but known to the maker to be fraudulent or without consideration, the latter will be deemed to have freed the transaction of the fraud, and to have waived the want of consideration, and will not be permitted to plead it. So, a note is supported by a sufficient consideration, if executed to secure the abandonment of a suit brought to enforce a doubtful right, or in compromise of a disputed claim made in good faith, though it ultimately appears that the claim was without merit. Keefe v. Vogle, 36 Iowa, 87; Babcock v. Hawkins, 23 Vt. 561; 1 Daniel, Neg.Inst. § 205; 1 Add.Cont. § 14.”

Although the settlement of the law suit, and the compromise of a disputed claim would furnish consideration for the note there in litigation, the decision in Hunter v. Lanius, supra, has frequently been cited as authority for the proposition that the execution of a renewal note with knowledge of fraud in the transaction, or that the consideration for the original has failed precludes the maker from setting up the defense of fraud or failure of consideration in an action on the renewal note, the execution of the renewal note being a waiver of such defense, or, as sometimes said, an estoppel. National Bank of Cleburne v. Carper, 28 Tex.Civ.App. 334, 67 S.W. 188, n. w. h.; Adams v. Overland Automobile Co., Tex.Civ.App., 202 S.W. 207, n. w. h.; Harkrider v. Capps, Tex.Civ.App., 250 S.W. 1093, writ dis.; Twichell v. Klincke, Tex.Civ.App., 272 S.W. 283, n. w. h.; J. B. Colt Co. v. Ellis, Tex.Civ.App., 293 S.W. 629, n. w. h.; Davis v. Donalson, Tex.Civ.App., 91 S.W.2d 763, writ dis.; Williams v. Owen, Tex.Civ.App., 111 S.W.2d 1182, n. w. h.; Arkansas Fuel Oil Co. v. Underwood, Tex.Civ.App., 193 S.W.2d 276, n. w. h.

Although the above cited authorities support the general rule quoted from Hunter v. Lanius, supra/none of them involves a situation which presents a clear fact issue as to whether the maker of the renewal note at the time of signing same had the intention to waive his defense either of fraud or of failure of consideration.

We do not feel, when we resolve all doubts as to the existence of a genuine issue of a material fact against appellee, and give appellant the benefit of every reasonable inference which can properly be drawn in its favor, that we can say as a matter of law that appellant, in the execution of the note in issue, intended to waive the matter of the cartons being of no value to it. Not only was Rouw constantly over the years trying to get the appellee to give relief for the totally useless (to appellant) cartons, but the facts, construed most favorably toward Rouw in this summary judgment proceeding, appear to be that appellee, at the time of the execution of the note in issue and of the first notes, knew that Rouw signed with the expectation that they would furnish appellant usable cartons for the bad ones, and further that appellee entered into an express agreement with Rouw to make such exchange. Appellant’s defense in this case was based not alone on the failure of consideration, but, by way of counter-claim and set-off in its cross-action, on a breach of an express agreement.

Culver v. Haggard, Tex.Com.App., 270 S.W. 846, involved a question of the waiver of fraud as a defense by the execution of renewal notes after discovery of the fraud by defendant. The court held that since no intention to waive was shown by the testimony, the act of renewal alone is not conclusive evidence of waiver. The opinion quotes with approval from 20 Cyc., p. 93, the following:

“The question of waiver, however, is largely one of intent. Hence acts done in affirmance of the contract can amount to a waiver of the fraud only where they are done with full knowledge of the fraud and of all material facts, and with the intention clearly manifested of .abiding by the contract and waiving all right to recover for the deception. Acts which, although in affirmance of the contract, do not indicate any intention to waive the fraud, cannot be held to operate as a waiver.”

The above text is also cited by the Supreme Court with approval and is applied in Kennedy et al. v. Bender, 104 Tex. 149, 135 S.W. 524.

We feel that the statements of H. Rouw in his correspondence with appellee concerning this matter are properly to be considered as evidence in a trial of this suit on the merits concerning the issue of waiver of his defense of failure of consideration, but we do not believe that this record shows as a matter of law that Rouw, at the time of executing the note in litigation, intended to waive such defense. Kennedy et al. v. Bender, Tex.Sup.Ct., supra; Culver v. Haggard, Tex.Com.App., supra; Payne v. Beaumont, Tex.Civ.App., 245 S.W. 94, writ ref.; Goodwin v. Abilene State Bank, Tex.Civ.App., 20 S.W.2d 1090, writ dism.; Exchange National Bank v. Parsons, Tex.Civ.App., 116 S.W.2d 817, n. w. h.; Fish v. Bush, Tex.Civ.App., 143 S.W.2d 834, n. w. h.

We accordingly find that the record before us does show the existence of a genuine issue of a material fact, and that the trial court erred in granting the summary judgment.

Reversed and remanded.


author: MASSEY, Chief Justice.

text:
    C. B. BURDINE, Appellant, v. Lon EVANS, Sheriff, et al., Appellees.
    No. 16586.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 11, 1964.

      Whiteside & Baker, Fort Worth, (no brief filed in Court of Civil Appeals by appellant), for appellant.
    Simon & Simon and Sheldon Anisman, Fort Worth, for appellee Trinity Universal Ins. Co. (No brief filed by any other appel-lee).
   MASSEY, Chief Justice.

This is an appeal from an order refusing the application of appellant C. B. Burdine for a temporary injunction.

Appellee Trinity Universal Insurance Company had obtained a final judgment against one L. C. Johnson in a former suit, and pursuant thereto appellee Lon Evans, Sheriff of Tarrant County, had levied upon certain realty and posted notice of his intent to sell it to satisfy such judgment. Appellant claimed that the property in question belonged to him and not Johnson and sued for the purpose of having the threatened adverse action enjoined.

Following a hearing before the trial court, judgment was rendered dissolving the temporary restraining order previously issued and denying temporary injunction.

An appeal was taken from such action on the part of the trial court in accordance with provisions of subsections (a) and (b), Texas Rules of Civil Procedure 385, “Appeals From Interlocutory Orders”.

One appellee moved that we dismiss the appeal for failure on the part of appel-' lant to file any brief in compliance with T.R.C.P. 414, “Briefs: Time for Filing, Etc.” and T.R.C.P. 415, “Briefs: Dismissal for Failure to File”. We overrule the mo-, tion. Under the provisions of subsection (d), T.R.C.P. 385, “Appeals From Interlocutory Orders”, the cause in the Court of: Civil Appeals may be heard on the bill and; answer and such affidavits and evidence as may have been admitted by the judge of the trial court, no brief being required.

In view of the condition of the record before us, i. e., without a brief or assignment of error filed and made by or in behalf of the appellant, our duty is limited to determining whether, according to the bill and answer and such affidavits and evidence, if any, as may have been admitted by the trial judge, the order was improper. Hotel & Restaurant E. I. A. & B. I. League v. Longley, 160 S.W.2d 124 (Eastland Civ.App., 1942, no writ hist.).

Upon consideration of that which is our duty to consider as the record in this case, it does not appear to us (at least not clearly and certainly so, which we understand to be the proper test) that the order denying the temporary injunction was not proper.

Judgment is affirmed.


author: COLLINGS, Justice.

text:
    MANHATTAN SHIRT COMPANY, Appellant, v. Wesley MOORE et al., Appellees.
    No. 3934.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 27, 1964.
    Lon D. Herbert, Alice, for appellant.
    Lawrence H. Warburton, Jr., David A. Grose, Walter Purcell, Alice, for appellees.
   COLLINGS, Justice.

This suit began with an application for the appointment of a receiver by Wesley Moore. He complained of Manhattan Shirt Company and Halsey Wright, Sheriff of Jim Wells County, seeking, ancillary to the appointment of a receiver, an injunction against the proposed sale of merchandise under a levy of an execution by the Sheriff. The merchandise involved was a portion of the assets of Moore’s Men’s Wear, Inc., the stock of which corporation plaintiff alleged he was the owner of 51%. The injunction was granted. Reed B. Nunley was appointed receiver and ordered to take possession of all the property and assets of-Moore’s Men’s Wear, Inc., hereafter referred to as Moore’s, to file an inventory with the court and to notify all creditors interested therein to timely file their claims. The claim of Manhattan Shirt Company, hereafter referred to as Manhattan, was presented to and allowed by the receiver as one of the secured claims, and all claims, both secured and unsecured, were approved. The court, however found that Manhattan did not have a valid lien and its claim for a lien was denied, and it was adjudged that it would be inequitable to allow Manhattan’s claim over other general creditors. The court further found that the Alice National Bank was a creditor and entitled to a secured claim in the amount of $1,000.00 by virtue of its chattel mortgage lien on the fixtures in the store, and that Makrow, Moore’s landlord was entitled to a secured lien in the amount of $750.00 under the statutory landlord's lien provision.

Manhattan brings this appeal from the judgment of the court providing for a distribution of the monies held in receivership and for priorities of payment as above indicated.

Manhattan does not question the validity of the liens of the bank and the landlord as found by the court, but urges that the levy of its execution created a special lien upon the merchandise and funds in question and that its lien is prior and superior to the liens of the bank and the landlord, and to all other claims secured or unsecured, including allowances for receivership expenses.

As above indicated, the basis of Manhattan’s claim is that it has an execution lien. As evidence of such lien Manhattan introduced a return on an execution by the Sheriff of Jim Wells County, reciting a levy upon “goods in store”. This description of the property proposed to be levied upon does not specify any specific property and is in our opinion not sufficient to attach an execution lien. The Supreme Court of Texas in Messner v. Lewis, 20 Tex. 221, in discussing the question, stated as follows:

“But as to the sufficiency of the return as amended, there is more question. The only description it gives of the property attached is, that it is ‘a stock of goods, wares and merchandise.’ This, we think, was not sufficient. On general principles, independent of any statutory regulation, the officer is bound to give, as nearly as it can reasonably be done, in his return, or in a schedule or inventory annexed thereto, or .accompanying the return, a specific description of the articles attached.' For the purpose of executing the writ, the officer may enter the store of a third person where the goods of the defendant are, and may remain there long enough to seize, secure and inventory the goods. Drake on Att. p. 199, secs. 198, 191. There can be no excuse for a failure to execute the writ in such a manner as to render the goods attached capable of being identified, and the return should show that it was so executed. In the language of the court in Haynes v. Small, 22 Maine 14; ‘Officers ought to know what they attach, and to be holden to exactness and precision in making their returns. Neither the debtor nor the creditor would be safe, if it were otherwise.’ ”

For the reasons stated appellant Manhattan failed to establish that it had a valid execution lien and the court did not err in refusing to grant appellant any preference as a lien holder. Appellant’s points urging the existence of such a lien or preference are therefore overruled.

The judgment is affirmed.


author: BARROW, Justice.

text:
    ATLANTIC MILLS THRIFT CENTER OF SAN ANTONIO, INC., et al., Appellants, v. The STATE of Texas, Appellee.
    No. 14329.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 16, 1964.
    Bloch & Walton, Corpus Christi, Jay S. Fichtner, Dallas, for appellants.

      James E. Barlow, Dist. Atty., William J. Condon, Asst. Dist. Atty., San Antonio, for appellee.
   BARROW, Justice.

This is an appeal by Atlantic Mills Thrift Center of San Antonio, Inc., Spartan Industries, Inc., and Jerome N. Kitzis and Truman W. Kasper, managers of Spartan stores in San Antonio, from a permanent injunction granted the State of Texas restraining appellants from violating Art. 286a, Vernon’s Ann.Penal Code, through scheme or subterfuge, by selling or offering for sale certain merchandise on the consecutive days of Saturday and Sunday.

The' trial court heard the evidence adduced for and against each store operation separately, although the defendants were tried together and one judgment entered. The manner of operating defendants’ stores on Saturday and Sunday was substantially similar to that of Shoppers World in the recent case of State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.1964), affirming 373 S.W.2d 374, and will not be set forth in detail. It is sufficient to say that several witnesses for the State testified concerning purchases made of articles enumerated in Sec. 1 of Art. 286a, supra, on consecutive Saturdays and Sundays. All purchasers were required to sign certificates of necessity forms furnished by the stores before the sales were completed. If a purchaser refused to sign the certificate or told the cashier that the purchase was not a necessity, the sale was not made. The trial court found, however, that the method by which the defendants secured the “Certificate of Necessity Purchase” from the purchaser constituted in substance a scheme and subterfuge to avoid and evade Art. 286a, supra.

The Supreme Court in State v. Shoppers World, Inc., supra, construed Art. 286a as requiring as a condition of the right to sell the articles listed in Sec. 1 of the statute on both Saturday and Sunday, only a certificate of the purchaser that an item is needed as an emergency for the welfare, health or safety of human or animal life, and that the purchase is in fact an emergency purchase to protect the health, welfare or safety of human or animal life. It was said: “The duty is not imposed on respondent (seller) to determine whether the certificate is signed in good faith.”

The certificate required by defendants is in strict compliance with Sec. 4a of Art. 286a, and under the undisputed evidence no sales of the listed items have been made on both Saturday and Sunday without obtaining a certificate from the purchaser. There is therefore no basis for the injunction granted by the trial court. State v. Shoppers World, Inc., supra.

The judgment of the trial court is reversed and the injunction dissolved and held for naught.

      . “8. After a shopper had selected the items desired to be purchased on a Sunday, an employee of the Defendants would-present to such purchaser a printed form prepared by the Defendants on which said employee would list the items of merchandise purchased by the customer and require the purchaser to sign his or her name to such printed form. In this regard, it is the finding of the Court that the purchasers were not advised to read the printed matter on said form, nor were they told or advised of the nature or character of the form or of the purpose for which it was required. Defendants made no attempt to ascertain the identity of the person signing said form, nor were such persons interrogated to determine whether or not the merchandise so purchased was, in the opinion of either the Defendants or the purchaser, a purchase made as an emergency purchase to protect the welfare, health or safety of human or animal life as required under the above mentioned Penal Code.”


author: DAVIS, Justice.

text:
    INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Charles D. BROWN, Jr., Appellee.
    No. 7594.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 8, 1964.
    Rehearing Denied Dec. 29, 1964.
    Roberts & Smith, Longview, for appellant.
    Gallagher, Francis, Bean, Wilson & Berry, Dallas, Jones, Brian, Jones & Baldwin, Marshall, for appellee.
   DAVIS, Justice.

A Workman’s Compensation case. Plaintiff-appellee, Charles D. Brown, Jr., a minor, by and through his father, Charles D. Brown, Sr., as next friend, sued the defendant-appellant, Insurance Company of North America, for specific injuries alleged to have been incurred while appellee was working for Blue Buckle Overall Company in Marshall, Harrison County, Texas. Trial was to a jury, which answered all special issues in favor of the appellee.

The jury found that appellee was totally disabled, but such total disability was temporary and continued for nine weeks. The jury then found the appellee sustained a partial disability, and that such partial disability was permanent. In response to the special issue inquiring about appellee’s “Average Weekly Earning Capacity” during his partial disability the answer was “none”. Judgment was entered granting appellee a judgment for total temporary incapacity, for nine weeks at $35.00 per week, and granting him 300 weeks’ partial permanent incapacity at $35.00 per week. Appellant has perfected its appeal and brings forward 11 points of error.

By its point 2, appellant contends the trial court erred in entering judgment because there is a material and fatal conflict between the jury’s answer to special issues Nos. 7 and 13. In order to discuss this point of error, it is best to copy most of the special issues. The special issues involved read as follows:

“SPECIAL ISSUE NO. 1:
“Do you find from a preponderance of the evidence that the Plaintiff sustained an accidental injury on or about the 3rd day of December, 1962?,
• “Answer‘Yes’.or W-
“ANSWER: Yes.
«* * *
“SPECIAL ISSUE NO. 3:
“Do you find from a preponderance of the evidence that the Plaintiff sustained any total disability following the injury, if any, inquired about in Special Issue No. 1?
“Answer ‘Yes’ or ‘No’.
' “ANSWER: Yes.
“SPECIAL ISSUE NO. 5:
“What do you find from a preponderance of the evidence to be the begin- '■ ning date of such total disability, if any?
“ANSWER BY GIVING THE ■MONTH, DAY AND YEAR.
■i
“ANSWER: Dec. 3, 1962.
“SPECIAL ISSUE NO. 6:
“Do you find from a preponderance of the evidence that such total disability, if any, as inquired about in Special Issue No. 3, has been and will be permanent, or has been or will be temporary?
“ANSWER PERMANENT OR TEMPORARY.
“ANSWER: Temporary.
“SPECIAL ISSUE NO. 7:
“What do you find from a preponderance of the evidence to be the duration, if any, of such temporary total disability, if any.
“ANSWER BY GIVING THE NUMBER OF WEEKS OR ‘NONE’.
“ANSWER: 9 weeks.
“SPECIAL ISSUE NO. 8:
“Do you find from a preponderance of the evidence that the Plaintiff hás sustained or will sustain any partial disability as a result of the injury, if any, inquired about in Special Issue No. 1?
“ANSWER: ‘YES’ OR ‘NO’. “ANSWER: Yes.
« * ⅜ ‡
“SPECIAL ISSUE NO. 10:
“What do you find from a preponderance of the evidence to be the beginning date of such partial disability, if any.
“ANSWER BY GIVING THE MONTH, DAY AND YEAR.
“ANSWER: Feb. S, 1963.
“SPECIAL ISSUE NO. 11:
“Do you find from a preponderance of the evidence that such partial incapacity, if any, was or is permanent or temporary?
“ANSWER ‘PERMANENT’ OR ‘TEMPORARY’
“ANSWER: Permanent.
“SPECIAL ISSUE NO. 13:
“What do you find from a preponderance of the evidence to be the average weekly wage earning capacity, if any, during the existence of such partial incapacity, if any.
“ANSWER IN DOLLARS AND CENTS OR ‘NONE’.
“ANSWER: None.”

In arriving at whether or not there is a conflict between the jury’s findings, the court has to consider the answers of the jury to all the pertinent special issues involved. A view of the special issues discloses that the appellee sustained an injury on December 3, 1962. The injury sustained produced some total disability. But the total disability was only temporary. The ’ beginning date of the total disability was December 3, 1962. The jury then found that appellee had suffered some partial disability and the partial disability was permanent. The beginning date of the partial disability was February 5, 1963, which began immediately after the total disability expired. The jury then found that the average weekly earning capacity of the appellee during the permanent disability was “none”. As the court views the issues, there is no conflict at all.

In support of this point, appellant relies upon the two following cases: Texas Employers Ins. Ass’n v. Phelan, Tex.Civ.App., 103 S.W.2d 863, N.W.H.; Texas General Indemnity Company v. Villa, Tex.Civ.App., 297 S.W.2d 231, W.R.,N.R.E. In the Phelan case, the jury found that he had suffered total and permanent disability. The jury also found that he had suffered permanent partial disability of 100%. That was during the time when the statutes were so worded the jury was asked the percentage of disability. The trial court instructed the jury that partial incapacity means any degree of incapacity less than total, that is, less than 100%. The trial court entered judgment based on the jury’s findings of total incapacity, disregarding the findings on partial incapacity. The judgment was reversed on the theory that the appellee could not be totally incapacitated and permanently and partially incapacitated at 100% at the same time. There was no application for writ of error. In the Villa case, the jury found that he was totally and permanently disabled, and he was partially permanently disabled 100%. On the theory that the findings of the jury were in fatal conflict the appellee filed a motion to disregard the findings of total incapacity, and judgment was rendered for 300 weeks of permanent partial disability at 100%. The court held there was no fatal conflict in the findings and affirmed the judgment in the following language:

“ * * * It is a reasonable conjecture that the jury, having found that Jose Vasquez Villa was totally incapacitated, upon considering their an- > swer to the subsequent question relative to partial incapacity reasoned that one totally incapacitated must, of necessity, be partially incapacitated. However, regardless of what prompted such partially conflicted findings, under the decisions of our Supreme Court, we feel constrained to hold that there was ■ no fatal conflict destructive of the findings relative to partial incapacity, on which alone the judgment was based. * * * ”

Much has been written on the question of permanent partial disability in Workmen’s Compensation Law. A view of the special issues clearly reveals that the appellee was found to be totally and permanently disabled for nine weeks, which be-' gan on December 3, 1962. A mathematical calculation will reveal that this nine week period expired on or about Feb. 5, 1963. ■' The jury then found that the appellee had suffered permanent partial disability, with an average weekly earning capacity of none. A careful study of the cases cited in Villa, supra, will clearly reveal that there is no such conflict. The point is overruled.

By its points 4 through 10, inclu- , sive, appellant contends the trial court erred in entering judgment for the appellee for 300 weeks of permanent partial disability at $35.00 per week because, as a matter of law, the appellee could earn some money during such period of time; there was no evidence; insufficient evidence; against the undisputed evidence; and against the great weight and preponderance of the evidence. It also complains of the overruling of its-motion for a new trial and to disregard the jury’s findings in response to special issue No. 13. In discussing these points, it is necessary to briefly state the facts, as shown by the record. The appellee, while en- ■ gaged in the process of stooping over and lifting a heavy bolt of cloth, felt a severe' pain in his back. As a result of the injury he was sent by the foreman to see a doctor. This doctor then sent him to see another doctor. They both testified that he was injured. One doctor testified that he was not capable of getting and holding a job. He further testified that his condition was permanent. At the time of the trial, appel-lee was twenty years old. He had completed an eighth grade education. All of his work experience required bending, stooping and lifting. He had only done semi-skilled labor preceding the accident. As the result of the injury his body movements have been restricted. He has never finished even the slightest task without disabling pain. He had earned only $4.00 during the eleven months period after the accident and 'prior to the trial. All of his activities are restricted to short periods of time, and are accompanied by constant pain. He has made application for several jobs. After the disclosure of his injured back and his 'education, the applications were all refused. The foreman of the Blue Buckle ■Overall Company testified at the trial that he would NOT have hired appellee in his present condition, because he would not be able'to perform the work. He further testified that appellee could not work for any plant. In view of the medical and economical components of the disability, the injured workman can not compete successfully in the usual and ordinary fields of human endeavor. It seems that the jury was correct in finding his partial disability .to be permanent; The best possible solution is to make the best possible estimate of his future impairments of earnings on the strength, not only of post injury earnings, but of any other available clues. In Texas Employers’ Insurance Association v. Goforth, Tex.Civ.App., 307 S.W.2d 610, W.R., N.R.E., an bil field “roughneck”, who suffered a back injury, went back to. work -'after six weeks,-as a driller at an increase of 54⅜ per hour over whát he had been earning before the injury. An award of ■55%. per month-.partial disability was upheld. 24 NACCA Law Journal .155. In yiew'of.the’discussions of permanent par-.teriál disability, we hold that the evidence is •sufficient to support the jury’s finding that the appellee could not secure a job and earn any money as the result of his wage earning capacity, in view of his predicament and his educational qualifications. See, 1 NACCA Law Journal 32, 38; 6 NACCA Law Journal 90; 13 NACCA Law Journal 121; 24 NACCA Law Journal 148. The points are overruled.

Appellants’ points 1, 3, and 11 have been carefully examined, found to be without any merit, and they are overruled.

The judgment of the trial court is affirmed.


author: BELL, Chief Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY et al., Appellants, v. Linda Lou ROSE, by Next Friend, et al., Appellees.
    No. 14314.
    Court of Civil Appeals of Texas. Houston.
    Nov. 19, 1964.
    Rehearing Denied Jan. 7, 1965.

      Murfee, Hoover & Stillwell, Howard S. Hoover, Monroe Northrop, Houston, Wm. M. McDowell, Gen. Counsel, and Wm. C. Dowdy, Jr., Gen. Atty., both of Missouri Pac. R. Co., Dallas, of counsel, for appel-. lants.

      Ralph Gilbert, Ángleton, W. W. Watkins, Curtiss Brown, W. James Kronzer, Houston, Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for appellees.
   BELL, Chief Justice.

Linda Lou Rose, through her next friend, sued to recover for damages sustained by her because of the loss of her mother and father who were killed June 1, 1961 when the automobile driven by her father was in collision with a train of appellant, Missouri Pacific Railroad Company. The conductor in charge of the train is the other appellant, W. E. Smith. The court, based on a verdict favorable to appellee, rendered judgment in appellee’s favor in the amount of $130,000.00.

In the case of Missouri Pacific Railroad Company et al. v. Linda Lou Rose, Tex.Civ.App., 380 S.W.2d 41, we sustained a judgment in appellee’s favor for damages she recovered against appellants for personal injuries that she herself received in the collision.

The collision occurred at the intersection of State Highway 288 and the railroad tracks in the City of Angleton. The highway runs generally north and south and the tracks run generally east and west. The collision took place around 3 :15 a. m. Mr. Rose was driving his automobile north. The train was proceeding west. The crossing is controlled by flasher signals which, it may be deduced from the evidence, were not working.

The evidence shows that an engine was headed west, pushing four gondola cars ahead of it. The cars were painted black and were of low silhouette. The stationary headlight on the engine shone above the cars, according to some evidence thus failing to illuminate them. The cars, in the aggregate, were from 200 to 225 feet long. The automobile came into collision with the lead end of the lead gondola car. The automobile' was being driven in the lane of traffic next to the center line.

The basic theory of appellee is that appellant Railroad was negligent in the manner in which it operated its signal system which was tied in with the activation of the flasher warning at the crossing. The facts are that at a point 64½ feet east of the east curb of Highway 288 is Block Signal 3203. There are two discs on this signal. The upper controls the movement of trains on the main line. The lower controls the movement of other trains. If the two discs show red all trains must stop. This last statement is subject to appellee’s contention that Mr. Hobbs, trainmaster, issued a directive in 1957 to authorize crews on “track and time” to ignore these red signals. TJie activation of the flasher signals at the crossing is tied in with this Block Signal. If the two discs show red, the flasher signals will not be activated until sometime after the lead end of a train passes the signal. The evidence shows that it would .normally be activated when the lead end ,of the train reaches a point 64½ feet east of the highway. There is also evidence to show there is sometimes a lag between the time this point is reached and the time the flasher signals are activated. There was evidence that a 20 second warning should be given the traveling public by the flasher signal at the crossing. Appellee’s theory is that on the morning in question the train crew was operating on “track and time”; that it passed through Block Signal 3203 without stopping when the upper and lower discs were red; that the flasher signals did not work; that there was no proper flagging of the crossing and the collision resulted.

The jury convicted appellants of negligence, that proximately caused the collision, in the following respects:

1. There was a failure to operate the automatic signal system properly.

2: There was a failure to properly flag the crossing.

3. The railroad wired the block signal 3203 so the crossing signal would not activate until the train reached or passed it when the discs were red over red.

4. The railroad located signal 3203 closer to the highway than was proper.

5. There was a failure to flag the south side of the crossing.

6. J. B. Hobbs caused signal 3203 to be operated pursuant to track and time procedures.

7. Track and time procedures, as applied by the railroad, required the crew, when on track and time, to pass signal 3203 when the discs were red over red; the crew was following track and time procedure; this involved an unreasonable risk to the public; that Mr. Hobbs was notified of the danger and refused to discontinue the procedure.

8. 'Appellants failed to give such warning of the approach of the train as would have been given by a person of ordinary prudence in the exercise of ordinary care.

In the case cited contributory negligence was not material since appellee there sued for damages resulting from personal injuries to herself and her father’s negligence, if any, could not be imputed to her. Here suit is to recover damages resulting to her because of the loss of her parents. The negligence, if any, of her father is therefore material.

Appellants asserted Mr. Rose was negligent in a number of respects and that such negligence proximately caused the collision. The jury, in response to defensive issues, made the following findings, the effect of which was to acquit Mr. Rose of alleged negligent acts:

1. He was not operating his automobile at an excessive rate of speed.

2. : He- did not fail to keep á' proper lookout.

3.His failure to apply his brakes was not negligence.

There then followed these answers to issues submitting phases of Article 6701d, Sec. 86, Vernon’s Ann.Tex.St.:

1. The electric signal device was not working and clearly visible at a time when the driver, had he been driving said car as a reasonably prudent person, could have brought said automobile to a stop within 50 feet, but not less than 15 feet from the nearest rail.

2. That the train was not plainly visible and in hazardous proximity to the crossing at a time when the driver, had he been driving the car as a reasonably prudent person, could have brought said automobile to a stop within 50 feet, but not less than 15 feet from the nearest rail.

3. That as the train approached the crossing the horn or whistle on the engine was not emitting a plainly audible signal.

4. That as the train approached the crossing the automatic bell was emitting a plainly audible signal giving warning of the approach of the train.

5. That the failure of the driver of the car to heed the warning given by the automatic bell was not negligence.

Appellants complain that there is no evidence to support the submission to the jury of Special Issues 1, 5, 6, 8 and 27. These issues deal generally with the operation of the flasher warning signal at the crossing, as above reflected by the jury’s answers. Too, appellants contend the jury’s answers to the issues are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. The same points are made with regard to Special Issues 2, 7, 9 and 28, which are the proximate cause issues relating to the above negligence issues.

We will not set out the evidence relating to these issues but for a fairly extensive ■ statement of th'e evidence will merely refer to our statement of it given in the opinion above cited involving the previous trial. We have read the entire statement of facts filed in this appeal consisting of over 800 pages. We conclude there is evidence of probative force to support the submission of Issues, 1, 2, S, 6, 7, 8, 9, 27 and 28. Also, we are of the view that the answers of the jury to none of the issues can be said to be so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. We make the observation that essentially the evidence given on the trial of this case was the same in all material respects as on the previous trial. It is true that in this trial most of appellants’ witnesses exhibited a clearer recollection in their own minds of events than in the first trial and testified for the most part favorably to appellants. However, apart from this more favorable testimony, there remains substantive evidence of probative force supporting the submission of the above issues. Insofar as we have the question of whether the answers are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong, it is to be observed that the substantive testimony of those witnesses favorable to appellants was so weakened by the introduction of their previous trial and deposition testimony that one cannot say the great weight and preponderance of the evidence overwhelms against any of the jury’s answers to the above issues.

The conclusion could be reached that signal 3203, tied in as it was to the activation of the flasher warning signal at the crossing, particularly when the discs on the signal were red over red, was located too close to the crossing. The conclusion could be reached that on the occasion in question the discs showed red over red as the train crew approached the signal. The undisputed evidence shows the crew did not stop the train at the signal before proceeding. In the light of this, testimony concerning the speed of the train, testimony that a twenty second warning to a motorist was deemed proper, testimony of a lag between passing of the train over the activation point and the actual activation of the crossing signals, warrants the inference that the crossing lights were not timely activated.

The conclusion could be reached that all of these facts constituted negligence and that appellants could foresee that collisions might result at the crossing. Too, the evidence shows that there was a locker plant between the train just east of the crossing that obscured the view of the train crew as it looked toward the highway to the south from which direction Rose was coming and of course this would necessarily also obscure Rose’s view. Further, four gondola cars aggregating some 200 feet in length were being pushed ahead of the engine. They were painted black, were of low silhouette and were in no way lighted. While there was a stationary light on the engine shining west, it failed to illuminate the cars. Too, because of the tall lights a short distance east of the crossing the light from the headlight tended to blend with the light cast from them. It could well be concluded that all of these facts were causes of the resulting collision and could have been foreseen as probable causes of just such a collision.

Appellants complain there was no evidence to support the submission of Special Issues 19, 20, 22, 22-A, 22-B, 23, 24 and 25, and also the jury’s answer to each was so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. These issues submitted generally the appellee’s theory that J. B. Hobbs, the trainmaster, in 1957 issued a directive that trains operating on “track and time” need not obey the command to stop issued by the two discs on signal 3203 being red, but could proceed through the signal without obtaining clearance from the C.T.C. operator. These issues are answered favorably to appellee as shown by the answers stated above in this opinion as numbered paragraphs 6 and 7. The same attacks are made with- regard to Special Issues 21 and 26, the related proximate cause issues.

Having held that there was evidence of probative force, and it was sufficient to support the independent grounds of recovery stated above, it becomes immaterial to our decision whether the issues relating to Hobbs’ action find support in the evidence. Tex-Jersey Oil Corporation v. Beck, 157 Tex. 541, 305 S.W.2d 162, 68 A.L.R.2d 1062.

As we held when the companion case, which we have cited, was before us, we also hold here that there was evidence to require submission of issues relating to negligence in failing to properly flag the crossing under the particular facts of this case. The evidence was sufficient to support the answers. The same is true of the related proximate cause issues.

Appellants assert that Mr. Rose was guilty of contributory negligence as a matter of law in a number of respects and that each negligent act was as a matter of law a proximate cause of the collision. The attack with regard to each allegation of contributory negligence is that there was no evidence to support the submission of the issues of negligence or proximate cause, and, in the alternative that the answers to the issues were so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong.

First, appellants complain that the evidence without dispute shows Mr. Rose was driving his automobile at least 50 miles per hour in a 30 mile zone. The only testimony in the record on the speed of the Rose vehicle was the opinion evidence of Dr. Tonn who based his opinion on the damage done to the vehicle and the-train. In the previous trial there was also the testimony of highway patrolmen giving their opinion as to speed based on the damage done. There were no tire marks. W-e there held the testimony of’ the patrolmen was of no probative force because they were not shown to be qualified to give an opinion. On this trial their testimony was excluded and we think correctly so because the evidence in this trial on qualification was different in no material respect. On previous trial we held the testimony of the witness, Wehrly, as to speed, was of no probative force because of the want of identification that the automobile he saw speeding some distance from the point of the accident was the Rose car. On this trial his testimony was properly excluded. The result is that the speed of the Rose vehicle is based solely on the opinion testimony of Dr. Tonn. We hold, as we did in the previous decision, that the jury is not bound by this testimony.

Before passing on the next complaints of appellants, we should notice the evidence bearing particularly on the issues raised.

Appellants say that the undisputed evidence shows the flasher signals were working for from 18 to 33 seconds before the collision. Appellants’ witnesses, who testified to observing the flasher signals, all employees of the railroad, except Wehrly, testified that the signals were flashing before the lead end of the gondola cars reached the crossing. Allen Nelson, who went to the crossing ahead of the train, stated the signals were flashing when he signalled the train to come across. Some of the crew testified the signals were flashing several hundred feet before the train reached the crossing. They were the same witnesses who testified the signal block discs did not show red over red as the train approached. Waddell, the fireman, testified he could see about the length of the train and as the train was near the signal block he saw the flasher signals working. He testified the discs on the signal block as the train approached were double red. If this was true, then the signals would not activate until the lead end of the train reached the activation point ’ about 64½ feet from the crossing. His testimony is, therefore, subject to the construction that the flasher signal began when the lead end of the train crossed this point. Wehrly, the witness who was driving on Old Clute Road in a northerly direction toward the railroad crossing just west of Highway 288, testified he saw the flasher light at that crossing working. Other testimony showed the flasher lights at the two crossings would be activated at the same time. Wehrly testified he later, after the night in question, retraced his steps of that night from the point he observed the lights working to the point where he heard the noise of a collision, at the same speed he had previously traveled, and that about 33 seconds elapsed. However, Wehrly admitted that because of the fog between him and the crossing it was difficult to see. He said he could not, because of the fog, see the depot at the crossing but he could “make out” the lights. Too, he admitted that two weeks before trial he had told Mr. Gilbert and Mr. Watkins, attorneys for appellee, that the lights he had seen were the block signal lights along the H. & B. V. tracks. He then said he had checked it over in his mind and he now believed he saw the flasher signal at the Front Street crossing.

Apart from the above testimony, there is testimony from Mr. Waigand, the former signal maintainer for the railroad, who helped wire the signals when they were installed in 1945, who testified there was sometimes a lag between the time of reaching the activation point about 64 feet east of the crossing and the time the flasher signals would be activated. This, he said, could be as much as 4 seconds. He also testified that about a month after the collision in question he saw a train stopped at Block Signal 3203 and the discs were red over red. He went to the crossing where the collision occurred and watched the train move forward. He did not estimate the speed but the train started from a stationary position. The flasher lights did not come on until the cowcatcher of the engine was “on” the crossing. We take it this means across the east curb of the crossing. There was other testimony that the signal system was at all times up to the time of trial wired to operate in the same manner as on the date of the collision.

There was also testimony that the railroad contemplated users of the highway should be given a 20 second warning of the approach of trains.

It should also be borne in mind that the engine with its stationary headlight shining toward the crossing was pushing four gondola cars ahead of it The aggregate length of the cars was between 200 and 225 feet. The evidence shows the headlight did not illuminate them but shone over them. Mr. Wehrly, among others, so testified and he stated the headlight shone through the fog and over the top of the cars. Too, he said as he approached the point of the collision he was a lot closer to the crossing before he saw the gondola cars than when he first saw the headlight of the engine shining through the fog. There is a definite dispute in the evidence as to whether there was any fog. Some evidence shows there were patches of fog around though we do not recall there was fog at ground level at the point where the collision occurred. Too, the cars were of low silhouette and painted black. There were tall lights back east of the crossing. One witness, a deputy-sheriff who was purposely going to the scene of the accident, testified he had difficulty in seeing the gondola cars on the crossing though he was looking for the train.

We are of the view that the evidence will support the conclusion that the flasher signals did not begin to operate until the lead end of the lead gondola car was at the crossing, or, if there was only a 4 second lag between the time of reaching the activation point and activation of the signals, it would be only 6 feet east of the curb. This last statement is based on the conclusion that the train was traveling 10 miles per hour or 14.6 feet per second, as some evidence shows.

Appellant attacks the submission to the jury of the following issues on the ground there was no evidence to support them. We give the substance of the issues and the jury’s answers.

Issue No. 31. — The jury answered Rose did not fail to keep such a lookout for the approach of a train as would have been kept by a person of ordinary prudence in the exercise of ordinary care.

Issue No. 33. — The failure of Rose to apply his brakes immediately before the accident was not negligence.

Issue No. 35. — The electric signal device was not working and clearly visible at a time when the driver of an automobile, had he been driving said car as a reasonably prudent person would have been driving said car under the same or similar circumstances, could have stopped said automobile within 50 feet or less than 15 feet from the nearest rail.

Issue No. 37. — The train was not plainly visible and in hazardous proximity to the crossing at a time when the driver of the automobile, had he been driving said car as a reasonable prudent person would have driven it under the same or similar circumstances, could have brought said car to a stop within 50 feet but not less than 15 feet from the nearest rail.

Issue No. 39. — The train, as it approached the crossing, was not emitting a plainly audible signal from its horn or whistle.

Issue No. 43. — The failure of the driver to heed the warning given by the automatic > bell of the engine as the train approached the crossing was not negligence. ' In connection with this issue it is to be remembered that the jury found in answer to Issue No:'-42 that the automatic bell on the engine was emitting a plainly audible signal giving warning of the approach -of •the' train. '. , ,?

We cannot say as a matter of law that there was no evidence to support the submission of the issues as to whether Rose failed to keep a proper lookout or whether it was negligence for him to fail to apply the brakes. The same is true with regard to the related proximate cause issues.

The jury could under the testimony have well reasoned that Rose saw the headlight of the engine but could not see the gondola cars ahead of it. It could be reasoned that at such time the flasher signals had not commenced to work so that the gondola cars were east of the crossing and could not be seen. There is nothing except the ■ fact of the collision that remotely suggests Rose did not see the train. However, when all the surrounding facts are considered, it may well be reasoned he saw the engine but could not see the cars but that the engine, proceeding at about 10 miles per hour, was something over 200 feet east of the crossing. Even if the flasher signal came on when the lead end of the lead gondola car reached the crossing, the jury could have reasoned that the cars could not be seen. Rose could still have seen the engine headlight and it would be at least 200 feet east of the crossing. If it was going 10 miles per hour, it would not reach the crossing for at least 13 seconds and would not reach Rose’s lane of traffic for 14 seconds. Because of all surrounding circumstances, the jury could have reasoned that Rose saw the engine and because of its location, and not' being able to see the gondola cars, thought as a .reasonably prudent person that he had plenty of time to clear the crossing with time to spare. A simple mathematical calculation will show this to be true. The probability is that' Mr. Rose was 88 feet ■from the nearest rail of the tracks when the flasher signals came on and the lead end of the lead .gondola car was at the east :curb but the gondola cars could not be ■seerii At that time tbe engine was 200-plus 'feet e’ast of the crossing proceeding .at 10 miles per hour. If Mr. Rose -was traveling at 30 miles per hour he would have cleared the north rail of the track and be safely north of it in about 2½ seconds. This is based on his traveling at 44 feet per second. To get to the east part of Mr. Rose’s lane of traffic it would have taken the engine 14 seconds. If he was traveling 40 miles per hour, he would have been 108 feet from the nearest rail and could at the speed of 59 feet per second have easily cleared the railroad track before the part of the train it is reasonable to suppose he saw reached his lane of traffic. This will serve to demonstrate that the jury’s answers, that Rose did not fail to keep a proper lookout and it was not negligence to fail to apply his brakes, are supported by evidence of probative force and that the answers are not so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong.

As we recall the evidence, it does not show that the horn or whistle was emitting a plainly audible signal as the train approached but that the engineer merely gave two short sounds of the whistle in recognition of Nelson’s signal to proceed. There was other evidence from witnesses who stated all they heard was noise sounding like the rattle of a moving train.

The jury found that the bell on the engine was emitting a plainly audible signal as the train approached the crossing, but it was not negligence for Rose to fail to heed it. The issues were not submitted, apparently, in the form contemplated by Subdivision (c) of Article 6701d, V.A.T.S., which deals with the duty of a motorist to stop when the engine within approximately 1500 feet of the crossing emits a signal audible from such distance if the engine by reason of its speed or nearness to the crossing is an immediate hazard.- Rather it was apparently submitted on the theory that the defendant railroad was jcomplying with the réquirements of Article 6371, V.A. TbS., in that the bell. was'- ringing fbr 80 rods before -reaching the 'drossingband this was designedrto- give motorists'-'warning of the approafeh !of • the train -and .-Rose was negligent in not heeding the warning. However, the point is briefed on the theory that under Art. 6701d(c) the train was emitting an audible signal, was within 1500 feet of the crossing, was by reason of its nearness to the crossing an immediate hazard and there was a duty on the part of Rose to stop within 50 feet but not nearer than 15 feet from the nearest rail.

The Supreme Court in the case of Missouri-Kansas-Texas R. R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, had occasion to review the meaning of Article 6701d, Sec. 86. The effect, we think, of that decision was to hold that the duty to stop an automobile within the given range arose only if the conditions prescribed by a given subdivision existed. However, in determining whether or not the particular facts existed upon which the duty to stop arose, the common law standard of the reasonable, prudent person was applied. Under Subd. (c) the mere fact that the train was emitting an audible signal and was within 1500 feet of the crossing does not give rise to a duty to stop. The duty to stop arises only if, considering the speed of the engine or its (the engine’s) nearness to the crossing, it is an immediate hazard. It will be noted Subd. (c) refers to the position of the engine. In determining whether because of its speed or nearness to the crossing it is an immediate hazard we apply the common law test. The question is whether a reasonably prudent person in the exercise of ordinary care under all existing surrounding facts would conclude the engine, or train if a part of the train be between the engine and the crossing, could be seen, was an immediate hazard. Of course, there will be cases where under the particular facts it can be said as a matter of law that it was an immediate hazard. This is no such case. The mere fact that a collision occurred does not establish it as a matter of law. Missouri-Kansas-Texas R. R. Co. v. McFerrin, supra.

Under -the-facts above-rfecited, Rosé,'if he heard the -signal, could as a -reasonably prudent- person in the exercise of ordinary care, considering the position of the engine east of the crossing, its speed.and the fact that the gondola cars could not be seen, have concluded the train was not an immediate hazard but that he had sufficient time to clear the crossing. What we say is controlling whether, we consider the issues to be a submission under Art. 6701d(c) or a submission with a view to submission under the provisions of Art. 6371.

Issue No. 37 submitted inquiry as to whether the train was plainly visible and in hazardous proximity to the crossing at a time when a reasonably prudent person, had he been using ordinary care, could have stopped within the distances prescribed by Art. 6701d. This issue involves the application of Subd. (d) which was the subdivision involved in Missouri-Kansas-Texas R. R. Co. v. McFerrin, supra.

We are of the view that there was evidence of probative force to support the submission' of the issue and we cannot say the evidence is insufficient to support the jury’s answer. Certainly it could be concluded under the facts and circumstances above given that a reasonably prudent person in the exercise of ordinary care could consider that the only part of the train that was visible, that is, the engine, was not at that time, considering its position and speed, in hazardous proximity to the crossing so that no duty to stop arose.

The last complaint concerning the absence of evidence to support the submission of an issue -because of the absence of probative force arises as to Issue No. 35 that was submitted under Article 6701d(a), Sec. 86. This subsection provides that the duty to stop arises if “[a] clearly visible electric or mechanical signal * *. * gives warning of the immediate approach of a train.’*

While the Supreme Court in Missouri-Kansas-Texas R. R. Co. v. Mc-Ferrin, supra, had before it Subd. (d), we think part of the language of the Court amounted to a determination .that, under any of the subdivisions whether the facts exist-; ed which give rise to the duty to stop should be determined by the conduct of a reasonably prudent person in the exercise of ordinary care. The effect of appellants’ contention is that if there is an electric signal device working, this, without more, gives rise to the duty to stop. We reject this contention. Even though the signal device may come on, the train may be at such a distance and traveling at such a speed that a reasonably prudent person in the exercise of ordinary care would suppose under all facts and circumstances the clearance of the crossing could be made. It is a matter of almost common knowledge that ordinarily from the time a flasher signal comes on a substantial number of seconds elapse before the train reaches the crossing. In this case under the evidence the defendant railroad recognizes about 20 seconds’ warning should be given to allow motorists to proceed and clear the crossing. Here, as above observed, the jury could have concluded that the flasher signal came on just about 2 seconds before the collision. If it did, the jury could have also concluded Rose was at a point where he could not stop within the range prescribed. Too, it could have concluded that Rose would see the engine 200 feet down east of the crossing and could not see the gondola cars and as a reasonably prudent person in the exercise of ordinary care would suppose he could easily clear the crossing. He certainly would have had it not been for the gondola cars.

We are unable to say the jury’s answer is contrary to the overwhelming weight and preponderance of the evidence.

Finally, appellants contend the verdict of $130,000.00 is excessive.

The parents of Linda Lou, at the time of their death, were 36 years of age; Linda Lou was 8 years of age. She had a life expectancy, according to the table introduced, of 66.20 years. Mrs. Rqse, according to the table, had a life expectancy of 39.35 years. Mr. Rose, according to the table, had .a life expectancy of 34.76 years. Of course, tables showing life expectancy are not of themselves determinative of the expectancy of every person and a trier of facts can find a particular individual will probably live for a different number of years.

At the time of his death Mr. Rose worked for a Mr. Toomer who ran a fleet of shrimping boats out of Freeport. Mr. Rose had worked for him about a year. However, Rose had worked several years in the fishing industry. At the time of his death Rose was being paid $125.00 per week. He was working as a dock master. He had been captain of a boat but he wished to have more time to be with his family. A captain in the Freeport area makes from seven to eight thousand dollars per year. Rose was not receiving a bonus at the time of his death, but Mr. Toomer testified a bonus could be expected later. Mr. Rose was buying a boat from Mr. Toomer and the monthly payments to the finance company were $600.00. The boat was operated along with Mr. Toomer’s boats. The boat was earning about $600.00 per month. Mr. Rose, who supported his wife and four children, was current in payments on the boat. The boat could be expected, when paid for, to earn net from five to six thousand dollars a year. Mr. Toomer had known Mr. Rose all his life. He was a hard worker. He was devoted to his family.

Mrs. Rose was a fine mother to the children. She took them to church regularly. Mr. Rose did not because of his work. Some of the children were on the honor roll at school. The oldest Rose child was 14 years old. All of the other children than Linda Lou were killed in the collision. The children were well behaved. They were always dressed neatly. Mrs. Rose was not working at the time of her death. She had worked part time as a bookkeeper for Mr. Toomer and he paid her $50.00 per week. Her work was satisfactory.

We will not review all factors to be considered' in determining whether a verdict is excessive. They are set out fully in the case of Texas Consolidated Transportation Company v. Eubanks, 340 S.W.2d 830 (C.C.A.), ref., n. r. e. We are of the view that the verdict is not excessive.

There are other points raised by appellants which we have not discussed. We have considered them and find them to be without merit

The judgment of the trial court is affirmed.