author: WERLEIN, Justice.

text:
    DEEP SOUTH OIL COMPANY OF TEXAS, Appellant, v. TEXAS GAS CORPORATION, Appellee.
    No. 13619.
    Court of Civil Appeals of Texas. Houston.
    May 31, 1962.
    Joel W. Cook, Houston, for appellant.
    Vinson, Elkins, Weems & Searls, Robert E. Morse, Jr., A. A. White, Earl D. Elliott, Thomas H. Burton, Jr., Houston, for ap-pellee.
   WERLEIN, Justice.

Appellant, Deep South Oil Company of Texas, hereinafter called Deep South, sued Texas Gas Corporation, formerly McCarthy Chemical Company, to recover $19,-583.08 representing the part of the increased State of Texas taxes on gas production sold by appellant to appellee, which appellant claimed appellee owed pursuant to the agreement between them dated February 15, 1952. The case was tried without a jury. The trial court rendered judgment that appellant take nothing on the theory that the amount sued for was a rate increase subsequent to June 7, 1954, and was unenforceable because no notice was given the Federal Power Commission by appellant of the imposition of such increased tax and of appellee’s liability therefor.

The contract upon which appellant bases its suit provides, among other things:

“XI. TAXES — Seller shall pay all taxes imposed and at the rates prescribed upon the production and severance of gas in effect as of the date of this contract. In the event of an increase in the cost to Seller, occurring after said date, occasioned by an increase in taxes imposed and/or of the imposition or substitution of sales, occupation, gathering, export or excise taxes, or taxes having a similar effect, in addition to any applicable taxes in effect as of the date of this contract, Buyer will pay or reimburse Seller for three-fourths (¾) of such increase, in the event Seller has paid same, by increasing the price of the gas sold subject to such increased tax to the extent of three-fourths (¾) of the amount of increase in cost to Seller caused by any such increased, substituted or new taxes * * *. In case any such adjustment in taxes is to be made for any year, Seller shall notify Buyer immediately and shall, within ninety (90) days after the end of such year, prepare and submit to Buyer a statement setting forth the amount of such increase in cost to Seller caused by new or additional taxes that it has paid during such year. Within thirty (30) days after submission of such statement, an adjustment between the parties shall be made by Buyer reimbursing Seller to the extent of three-fourths (¾) of such increase in cost due to new or additional taxes as herein defined which Seller shall have so paid.”

The Federal statute involved in the instant case is Section 4(d) of the Federal Natural Gas Act [15 U.S.C.A. § 717c(d)] enacted in 1938 but made applicable to sales of gas at the wellhead by the decision of the Supreme Court in Phillips Petroleum Company v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035. This decision, rendered on June 7, 1954, was followed by successive orders and regulations of the Federal Power Commission, sometimes called Commission, which provided among other things that the rate schedules in force on June 7, 1954, were to be filed on or before October 1, 1954. “Rate Schedule” was defined in the regulations to mean “the basic contract and all supplements or agreements amendatory thereof, effective and applicable on and after June 7, 1954.”

Art. 7047b, Vernon’s Civil Statutes of the State of Texas, was amended by Chapter 2 of the Acts of the First Called Session of 1954, 53rd Leg., pp. 3 and 4, HB 15. The amendment provided for an increase in taxes on the business or occupation of producing gas within this State, effective as of September 1, 1954.

The trial court made the following pertinent findings of fact: that appellant is a natural gas company within the Natural Gas Act (15 U.S.C.A. § 717c) and an “independent producer” within the meaning of Sections 154.91 through 154.102 of the regulations of the Federal Power Commission; that the sums sought herein are for natural gas sold in interstate commerce under the contract between the parties and subject to the jurisdiction of the Commission ; that the filing by appellant with the Commission on September 22, 1954 of a petition for a declaratory order with attached copy of said contract did not constitute a filing of a change of rates pursuant to Sec. 4(d) of the Natural Gas Act or compliance with Federal Power Commission Regulation 154.94 or notice of a new rate schedule; that the contract in question was filed with the Commission as appellant’s rate schedule No. 1 on May 29, 1958, and that on June 7, 1954, appellant was selling gas to appellee at a rate exclusive of the sums sued for herein, and no change in such rate was authorized by the Commission; that the Commission has determined that any increase in the rate charged on June 7, 1954 will require its approval and that Art. XIV of the contract makes its terms subject to Commission orders and regulations; that any obligation of appel-lee under the contract for the sums sought was conditioned on appellant’s filing with the Commission of a notice of change in rates and that appellant failed to file such notice or to comply with the Commission regulations; that the payment of the sums sought to be collected would constitute rate changes under the Natural Gas Act and the Commission regulations; and that appellant has failed to perform the conditions precedent to its right to recovery.

The court concluded that Deep South is not entitled to recover from Texas Gas Corporation reimbursement for any increased taxes on or by reason of gas sold to appellee, because same would constitute a rate increase, and appellant failed to comply with the necessary legal and contractual prerequisites for creating an enforceable obligation on the part of appel-lee for payment of such taxes, and further that appellee was entitled to deduct from the basic contract price otherwise due appellant the additional sum of $2,083.37 paid by appellee on delinquency tax notices after default by appellant.

We are of the opinion that the foregoing fact findings and conclusions of the trial court find support in the evidence. The trial court properly found that the in-, crease in the taxes in the amount appellant sought to recover constitutes a change in the rate schedules within the meaning of Sec. 154.94 of the Regulations of the Federal Power Commission as well as Sec. 4 (d) of the Natural Gas Act. The contract in question provides that during the first ten years of its life the price of gas sold would be 10 cents per thousand cubic feet. It also provides, as hereinabove shown, that in the event of an increase in the cost to Seller occasioned by an increase in taxes imposed, Buyer will reimburse Seller for three-fourths of such increase in the event Seller has paid the same, “by increasing the price of the gas sold subject to such increased tax to the extent of three-fourths (¾) of the amount of increase in cost to Seller caused by any such increased, substituted or new taxes.” Thus the contract itself provides that the increase in taxes shall be taken care of by including such increase in a price increase which, of course, would establish a new rate.

Appellant also refers to the stipulation of the parties to the effect that on September 22, 1954, Deep South filed with the Commission a petition for a declaratory order to which was attached a complete copy of the contract of February 15, 1952. In the petition for a declaratory order, appellant was undertaking to establish that its sales of natural gas to Texas Gas Corporation were not subject to regulation under the provisions of the Natural Gas Act, and that it was not a natural gas company within the meaning of such act and hence it would not have to file any rate schedules. We agree with the trial court that the petition for declaratory order with attached copy of said contract did not constitute a filing of a change of rates pursuant to Sec. 4(d) of the Natural Gas Act or compliance with the Commission’s Regulation 154.94 or notice of a new rate schedule. Even if the contract could be considered as properly filed and as showing the rate schedule effective June 7, 1954, it would still not constitute a notice of any change in rate. The contract contains no escalator clause with respect to increased taxes which would definitely and automatically put into operation new rate schedules at certain prescribed dates.

Sec. 4(d) of the Natural Gas Act provides that, “(d) Unless the Commission otherwise orders, no change shall be made by any natural gas company in any such rate, charge, classification, or service, or in any rule, regulation or contract relating thereto, except after thirty [30] days’ notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect.”

Sec. 154.94 of the Regulations provides, among other things, that in the event of a proposed change in a rate schedule, there shall be submitted the reasons, nature and basis for the proposed change, giving the date on which the change is proposed to be made effective, a comparative statement of total sales made and revenues therefrom under the then effective rate schedule and under the proposed changed rate schedule, and there shall be submitted a full statement in support of the increase. Appellant did not comply with any of such requirements.

In Continental Oil Co. v. Federal Power Commission, C.C.A.5th, 1956, 236 F.2d 839, cert. den., 352 U.S. 966, 77 S.Ct. 352, 1 L.Ed.2d 321, the court recognized that tax reimbursement provisions similar to those in the present case constituted rate changes even though filed with the Commission on the same date that the company, under protest and with jurisdictional reservations, filed its contract reflecting rates and charges in effect on June 7, 1954. The court held that under Sec. 4(d) of the Natural Gas Act change schedules must be filed at least thirty days before they are to go into effect.

The opinion of the presiding examiner in the Deep South case before the Commission, Defendant’s Exhibit No. 2, included the finding that “the basic price at which the gas was being sold and delivered as of June, 1954, appears fair, reasonable and unquestioned. Any increase in such price hereafter will require Commission approval and the possibility of such increase is not pertinent to this proceeding.” Since the tax reimbursement provision in Art. XI of the agreement in question would increase the amount paid by appellee for gas purchased from appellant, it unquestionably provided for increases in rates which could only be put into effect after compliance with Sec. 4(d) of the Natural Gas Act and Sec. 154.94 of the Regulations of the Commission. The trial court properly concluded that appellant had failed to comply with such requirements and was not entitled to recover any part of the increased taxes paid.

Our holding applies also to the portion of the taxes paid in the years 1957 and 1958 referred to in appellant’s third and fourth points, since such portion of the taxes accrued and was paid prior to compliance by appellant with the Federal Power Commission requirements and the Natural Gas Act.

Judgment affirmed.

COLEMAN, J., not sitting.


source: Caselaw Access Project

author: TIREY, Justice.

license: Public Domain

text:
    HOUSTON-AMERICAN LIFE INSURANCE CO. et al., Appellants, v. Eleanor M. TATE, Appellee.
    No. 3985.
    Court of Civil Appeals of Texas. Waco.
    May 24, 1962.
    Affirmed as Reformed on Remittitur May 31, 1962.
    Rehearing Denied June 28, 1962.

      Irion, Cain, Cocke & Magee, Don W. Davis, Dallas, for appellants.
    Fritz & Vinson, Edward R. Vinson, Dallas, for appellee.
   TIREY, Justice.

This action was brought originally by Millard C. Tate for actual and exemplary damages he claimed to have sustained to himself and to his wife because of the wrongful conduct of the appellants in seeking to enforce the provisions of a usurious contract. Before the trial his wife filed a suggestion of death stating that her husband had died and alleged that she was his surviving widow; that under his will she was named the sole beneficiary and independent executrix without bond. She alleged that the cause of action is one which survives, and she asked the Court that the suit be continued in her name, namely Eleanor M. Tate, in her own right, and as independent executrix of the estate of Millard C. Tate, plaintiff. The Court granted this motion and entered an order in accordance with the request. The Court overruled appellant, Houston-American Life Insurance Company’s motion for severance and submitted the cause to the jury. The verdict was favorable to plaintiffs. The jury fixed the actual damages in behalf of Mrs. Tate and her husband at $100.00 each, and awarded the sum of $6300.00 as exemplary damages. The Court overruled each of appellants’ motions for judgment and for re-mittitur, and granted plaintiff’s motion on the verdict of the jury and decreed to Mrs. Tate in her own right and as independent executrix of the estate of Millard C. Tate, deceased, against the defendants, jointly and severally: (1) cancellation of $50.61 usurious interest contained in the promissory note of September 21, 1956, (2) and awarded to her $196.33 insurance benefits, (3) and $200.00 actual damages for mental or emotional pain and physical illness suffered by Eleanor M. Tate and Millard C. Tate, deceased, and (4) $6300.00 exemplary damages for malicious harassment, with interest on the sums specified in (2), (3) and (4) above, at the rate of 6% per annum from the date of this judgment, and (5) all court costs in this cause incurred. The judgment is assailed on 13 Points. 1 and 2 are to the effect that judgment for exemplary damages does not survive the death of the injured party, and that plaintiff failed to request and obtain the submission of a separate issue inquiring as to exemplary damages relative to the surviving plaintiff only, and that since exemplary damages do not survive in behalf of the deceased husband, there is no way in which the Court can split the exemplary damages here awarded because it was submitted in one issue. Issues 21, 28 and 30 are pertinent to the above Points. 21 is: “Do you find from a preponderance of the evidence that the said unreasonable collection efforts, if any, by Houston-American Finance Corporation against Eleanor M. Tate were actuated by malice, as that term is defined herein?” To which the jury answered “Yes”. “28. Do you find from a preponderance of the evidence that the said unreasonable collection efforts, if any, by Houston-American Finance Corporation against Millard C. Tate were actuated by malice, as that term is defined herein?” To which the jury answered “Yes.” Issue 30: “What sum of money, if any, do you find from a preponderance of the evidence should be awarded plaintiff as exemplary damages for the malicious collection efforts, if any, of Houston-American Finance Corporation, against Millard C. Tate and Eleanor M. Tate?” To which the jury answered “$6300.00.” Defendants only objection to Issues 21 and 28 is: “that the same is wholly without support in the evidence.” There is no objection to Issue 30. Article 5525 Vernon’s Ann.Tex.Civ.St., provides that:

“All causes of action upon which suit has been or may hereafter he brought for personal injuries, or for injuries resulting in death, whether such injuries be to the health or to the reputation, or to the person of the injured party, shall not abate by reason of the death of the person against whom such cause of action shall have accrued, nor by reason of the death of such injured person, but, in the case of the death of either or both, all such causes of action shall survive to and in favor of the heirs and legal representatives and estate of such injured party and against the person, or persons liable for such injuries and his or their legal representatives, and may be instituted and prosecuted as if such person or persons against whom same accrued were alive.”

Rule 150 Texas Rules of Civil Procedure provides in effect, where the cause is one which survives, no suit shall abate because of the death of any party thereto. In Norman v. Valley Gin Co., (Tex.Civ.App., 1936), 99 S.W.2d 1065, writ ref., the Beaumont Court, in considering this statute stated:

“Under this statute, the cause of action that survives is for damages for injuries received by the injured party, which, if he lives, may be recovered by him, but, if he dies from the injuries, then his heirs and legal representatives have the right to recover the same damages that the injured party, had he lived, could have recovered. That is, his right to recover damages because of the injuries which he has suffered up to the time of his death, survives to his heirs, legal representatives, and estate. The value of his life, measured by his earning power during the period of his life expectancy, is not the estate, the right to recover which is provided by the statute.”

We see no conflict in the Beaumont Court’s opinion with the Texarkana Court in Fleming Oil Company v. Watts, Tex.Civ.App., 193 S.W.2d 979, writ ref., n. r. e. However, if there should be, the Beaumont opinion would control because of the straight out refusal, and because our Supreme Court has not changed or modified the statement of the Rule there made. See also 33 Tex.Jur. 179. In Vol. 1 C.J.S. Abatement and Revival § 138, p. 190, we find this statement:

“ * * * ordinarily where a cause of action ex delicto survives the death of person injured, it survives in its entirety so as to entitle the personal representative to recover exactly the same damages as his decedent might have recovered.”

In 1 Am.Juris., Sec. 89, (pocket part) we find this statement of the Rule:

“In a majority of cases considering the question, the view has been taken that where an action in which exemplary damages might properly be allowed has been begun by the injured party himself, his later death does not preclude recovery of such damages by his personal representative, assuming, of course, that circumstances justifying the allowance of punitive damages generally are adequately established.”

It is true that we have not been cited to any case in Texas where any of our Appellate Courts have held that a cause of action (similar to this one) for exemplary damages survives. However, the question has been passed upon by the Supreme Court of Vermont where the survival statute is very similar in many respects to our Art. 5525, R.C.S. The Vermont statute, Gen.St., c. 52 §11, provides as follows:

“If, in any proper action now pending, or which may hereafter be commenced, for the recovery of damages for any bodily hurt or injury, occasioned to plaintiff by the act or default of defendant * * *, either party shall decease during the pendency of such action, such action shall, nevertheless, survive, and may be prosecuted to final judgment by or against the executors or administrators of such deceased party.”

In Bradley v. Andrews, Supreme Court of Vt., 51 Vt. 525, the father instituted a suit in behalf of his minor son for injuries sustained when the defendant shot the boy with a Roman Candle. The son died before the trial, and the defendant contended the cause of action abated by reason of the son’s death, and the Supreme Court held that under the above statute quoted that the cause of action survived in favor of the father as administrator, both as to actual and exemplary damages. Again in Earl v. Tupper, 45 Vt. 275, we have this situation: Mr. and Mrs. Earl had brought suit for actual and exemplary damages on account of Mrs. Earl having been beaten by the defendant with a stick. Mrs. Earl died during the pendency of the suit. Her husband prosecuted the suit to completion and recovered actual and exemplary damages. The Court, in discussing exemplary damages, said:

“But, as has been stated before, such damages are given to stamp the condemnation of the jury upon the acts of the defendant on account of the malicious or oppressive character of the acts, and the decease of the party injured would not take away the bad character of the acts, nor prevent the jury from holding them in detestation nor take away their right to visit the defendant with damages to show what might be expected from similar conduct.”

In 17 Tex.Jur.2d at page 241, we find this statement:

“Although the Courts declare that exemplary damages are not compensatory in character, nevertheless they are, in some aspects, compensatory, for they are payment to the sufferer in an attempt to compensate him for his sufferings.”

In Cole v. Tucker, 6 Tex. 266, we find this statement by Chief Justice Hemphill:

“It is only by legal fiction that the plaintiff suing for exemplary damages represents the public.”

In Allison v. Simmons, Tex.Civ.App., 306 S.W.2d 206, n. r. e., this Court approved the following definition of exemplary damages:

“Compensation allowed by law in addition to actual damages by way of punishment, and as an example for the good of the public, and may also include compensation for inconvenience, reasonable attorney’s fees, and other losses too remote to be considered under actual damages.”

Citing Wright Titus, Inc. v. Swafford, Tex.Civ.App., 133 S.W.2d 287, dis. correct judgment; Union Mill Co. v. Prenzler, 100 Iowa 540, 69 N.W. 876. Testimony was tendered to the effect that reasonable attorney’s fees in this cause were $2330.33.

Going back to Article 5525 aforesaid, we find that the terms of this statute are very broad, comprehensive and inclusive. If the Legislature had intended that the cause of action for exemplary damages should not survive the death of the injured party, it could have easily made the exclusion. It is our view that if we held that the action for exemplary damages did not survive, that we would be grafting an exception on the statute, which we are not authorized to do. There is another reason why we think the action for exemplary damages survives. First of all, the Supreme Court of Texas has uniformly held that counsel fees for the prosecution of plaintiff’s demand in cases of tort “may he considered by the jury, in a proper case, in fixing the amount of exemplary damages.” See also Allison v. Simmons, supra, and cases there cited. The Legislature of Texas has the power and corresponding duty to fix the public policy of this state. The only limitation on such authority is the Constitution of Texas, and the Constitution of the United States. Moreover, in Texas Employers’ Ins. Ass’n v. Holmes, 145 Tex. 158, 196 S.W.2d 390, point page 395, we find:

“Where a statute which has been construed, either by a court of last resort or by executive officers, is reenacted without any substantial change of verbage, it will continue to receive the same construction.”

We think the foregoing rule has great significance in determining whether or not the action for exemplary damages survives. We make the foregoing statement due to the fact that since attorney’s fees are recoverable in cases where exemplary damages may be recovered, that the Legislature had no intention of excluding the recovery of exemplary damages in the passing of Article 5525 aforesaid. See cases cited in Heaton v. Bristol, Tex.Civ.App., 317 S.W.2d 86, writ ref., writ of cert. denied by Supreme Court, 359 U.S. 230, 79 S.Ct. 802, 3 L.Ed.2d 765. Accordingly, points 1 and 2 are overruled.

Points 3, 4 and 5 are to the effect that the Court erred in failing to order remitti-tur of exemplary damages: (1) Because the damages are excessive as a matter of law; (2) No evidence to sustain the amount assessed by the jury, and (3) That the amount of the award is against the great weight and preponderance of the evidence.

A statement is necessary. On September 21, Millard C. Tate and his wife, Eleanor M. Tate, executed a note to the Houston-American Finance Corporation in the principal sum of $342.00. Testimony was tendered to the effect that included in this note were the following items: (1) Interest item $44.61 (usurious); another item of $6.00, filing and transfer fees 75$⅝, payment of premiums to the Houston-American Life Insurance Company $10.26, and another item for life, health and accident insurance $23.09, total deductions from loan $84.71, leaving the cash advanced and received $257.29. The Tates were required to execute the necessary papers relating to insurance, etc., in order to get the loan. The payments on the note were $19.00 per month, and it was the plan that under the terms of the insurance policy, the amount of the monthly payments on the note would be paid for total disability of more than six days duration. The Tates made the first six payments on the note, and after that Mr. Tate suffered a heart attack and was hospitalized on April 11, 1957. The due date of the next payment was April 21st. Collection contacts from the Finance Company commenced on April 22, 1957, at which time Mrs. Tate told the finance company that her husband had suffered a heart attack, and that he was in the Veterans’ Hospital and was on the critical list. The finance company told her to make the payment and she did so on April 23, 1957; Tate was hospitalized until May 13, 1957, and was thereafter at home until July 19th, 1959, and during that period of time the Tates were unable to make payments on the note and Mrs. Tate received telephone calls, letters, one telegram and several special deliveries, and had one personal call; that the finance company called Mrs. Tate at all hours of the day and even after 10:30 at night; that Tate was usually in the house when the calls were received, and Mrs. Tate told the finance company that since they had paid for an insurance policy in connection with the loan, she did not feel that they should have to make payments, but that the finance company told her she was going to make them; that they didn’t know how but that “I had to make them;” that when the finance company called her on the telephone they used a “very rough” tone of voice, and “were very hateful” to her; that the calls caused her to be nervous, and have headaches, to lose her appetite and ability to sleep; that they caused her to be irritable and ill; that they caused Mr. Tate to be very upset; that he could not eat nor sleep, and that he suffered with headaches, loss of memory, and walked the floors at night. Mrs. Tate told them about her husband’s condition; that in the telegram she received from defendant they advised her they were going to have to pick up the furniture; that it was “a very hateful telegram;” that after the special delivery letters she felt ill and very upset, irritable and nervous, and could not sleep; “that they tore her to pieces and nearly drove her crazy every time she received one;” that the special delivery letters caused her husband to be very upset; that he could not sleep, and would get up all hours and walk the floors and complain about his heart; that they also wrote the Tates letters and dun cards, all of which upset her and caused her to become very ill; that her husband returned to the hospital on July 19, 1957, and remained there until July 29, 1957, and during that time defendant contacted her by telephone many times. Sometimes they would call her as many as two calls in one day; that she told them her husband was in the hospital, and that he was not a well man and that she begged them to let them alone, but they said “we had to make the payments regardless of anything.” The insurance company made one payment on the note to the finance company. After Mr. Tate came home on July 29, 1957, they continued to receive contacts from the finance company until August 1958. Most of the calls were from Mr. Antes and Mr. Rumph, managers of the Houston-American Finance Corporation; that their voices were “very rough”; that they did not talk nice at all; that the calls tore her to pieces; that they called her a “deadbeat”, and said she was just trying to “beat” her bills; that she was “lying”; that she had the money and should come down and pay them. On one occasion Mr. Rumph told her “he didn’t give a damn” how she paid the bill; that he wanted her to pay it and “didn’t give a damn how;” that she was upset for hours and hours after he used such language; that they made one personal visit to the Tate’s home, and caused Mr. Tate to become so upset and nervous that he had to go to bed. In a letter dated February 19, 1958 to Mr. and Mrs. Tate, from Attorney, Henry Wise, formerly with the law firm of lirón, Cain, Cocke and Magee, he notified the Tates that the law firm had been retained to collect $188.00, and that the loan was secured by “your household goods”. The letter threatened foreclosure unless satisfactory arrangements were made within 10 days; that the letter made her ill and made her very upset; that she called Mr. Wise and told him about her husband’s illness and that they were supposed to have an insurance policy to cover the payments on the note. Mr. Wise told her “I am not going to do anything to you. I didn’t have the facts on this case. Furthermore, I don’t care to represent them anyway.” In a letter dated April 15, 1958, Mr. Tate wrote to the Insurance Commissioner, and sent a copy of the letter to the Houston-American Finance Corporation, and in this letter Mr. Tate told them about his heart attack on April 11, 1957, and of his going to the hospital on that date, and again on July 19, 1957, and that he was unable to do any work, but that the loan company continued to solicit the loan payments. In a letter postmarked April 23, 1957, to Mr. Tate, the Finance Company advised him “Do not allow credit to become a String of Broken Promises like the string attached. Do not make it necessary for us to alert the credit bureaus of your present credit status. Do not make it necessary for us to send you our pamphlet ‘How to prepare your furniture for repossession' ”. In a letter addressed to Mr. and Mrs. Tate received on July 2, 1958, the finance company advised them “Wrecking a bank building is pretty expensive, but the most important thing you can week is your credit. Our Records show that you failed to keep your promise. Telephone RI-1-4407, or come down in person at once to this office, make at least one full payment now.” In August 1958, a card from the Finance Company was left at the Tate’s house. It said: “Please phone and save me another trip.” Mrs. Tate said that when the contacts were received from the finance company, “very often I would cry and I would get very nervous and upset when I think about it, even now.” Mrs. Tate received surgery on October 29, 1957, and was in the hospital about ten days; that she was in extreme pain for about three weeks after getting out of the hospital; that during that time she continued to receive calls from the finance company. “Lots of time I was in bed and I had to get up and talk to them on the phone.” That she told them about her condition and “begged them to let me alone and they just kept calling me.” That she told them she was very, very ill. Mr. Rumph of the finance company told her “If you can’t pay the bill and your husband is ill, and he can’t work, and he can’t pay it, why don’t you get out and go to work?” That she told him she was unable to work, and he said: “Well, you will have to get a job. If you can’t get one I will get one for you.” This caused her to become frightened. He then said “If you don’t get a job, I am going to bring a truck out and get your furniture.” Rumph told her to go to the Texas Employment Commission and gave her the name of a man she should see; that because she was so frightened and ill, she went to the commission. She did not get-a job there but did get one at Hartford Fire Ins. Company. After six weeks of work during which time she was getting' more ill by the day, she had to stop work. With reference to the claims forms from: the life insurance company, she testified that the finance company “wanted something different all the time; I would get what they wanted and they would call me and they would want something else, and I was chasing around for a long time trying to get everything they wanted, back and forth from the hospital.” They were “generally obnoxious to me on the phone.” In a deposition taken before Mr. Tate’s death, he testified to the effect that the finance company began contacting him about a week after May 19, 1957, when the payment was due, and that in all he received between 50 to 75 calls from that company between that date and August 10, 1958; that the calls would be received from 9 :00 A.M. until 10:30 at night, and on a few occasions they called twice in one day; that they averaged two or three calls per week. Tate further testified that sometimes they tried to coax a payment out of him, “and several times they threatened me over the phone, that they were coming out to take the furniture away from me; that they were going to turn me in to the Retail Credit Association”; that they used abusive language in that they accused him of lying, and they would get pretty nasty on the phone a few times; that he received numerous letters and occasionally a telegram; that he estimated he received 8 or 10 letters between the periods of hospitalization; that a representative from the finance company came out to see him between his first and second periods of hospitalization; that he spent about two and a half hours at his home one afternoon trying to persuade him to issue him a post-dated check for just one payment; that this visit caused him his “worst seizure;” that he told the representative that he was just out of the hospital and was due to take his afternoon rest, but that he could not get the “scamp out of the house.”

The jury, in its verdict, found that the finance company made unreasonable collection efforts against Mr. and Mrs. Tate, and further found in answer to Issues 19 and 26 that each of them suffered mental or emotional pain and physical illness and aggravation thereof after such unreasonable collection efforts, and further found that such unreasonable collection efforts were the proximate cause of the illness or aggravation thereof suffered by Mr. and Mrs. Tate, and further found that the unreasonable collection efforts against Mr. and Mrs. Tate were actuated by malice. As above stated, it found that Mr. and Mrs. Tate had suffered $100.00 each actual damages, and awarded the sum of $6300.00 as exemplary damages for the malicious collection efforts made against the Tates by the finance company.

We have read the statement of facts carefully, and have also made a careful examination of each of the exhibits tendered, and we are of the view that the evidence is ample to sustain the jury’s findings to the effect that the collection efforts made by the defendant and its agents were unreasonable, and that in their efforts to make collection they pursued a course of constant harassment day and night, by telephone, telegraph, special delivery, by mail and by personal visitation, and at one time calling the Tates “dead beats”, and also accused them of lying, and using other strong language as heretofore quoted, in ordering the Tates to do as they said, or have their credit ruined and furniture repossessed. The finance company’s collection efforts would have been wrongful had the debt been a legitimate one. The jury found that of the $188.00 balance claimed to be due on the promissory note, the sum of $50.61 of this amount constituted usurious interest, and that the life insurance company owed Mr. Tate $196.93 for total disability benefits, which would have been sufficient to have discharged the note. As we understand appellant’s position they do not contest the award of actual damages due Mr. and Mrs. Tate, but in their amended motion for new trial they say the judgment is incorrect: “Because the court failed to remit a portion of the exemplary damages assessed by the jury, as the jury awarded a ratio 31½ to 1, exemplary to actual damages; whereas, the evidence is insufficient to support a ratio of more than 2 to 1; and such verdict for a grossly greater ratio indicates passion and prejudice, and is, therefore, incorrect as a matter of law.”

Much has been written by our appellate courts on the question relating to exemplary damages, but so far as we have been able to ascertain our Supreme Court has never fixed any exact ratio between actual and exemplary damages. Our appellate courts have held that where there is no actual damage, there can be no exemplary damages. So, our view is that there is no exact rule which can be laid down as to the ratio which should exist between actual and exemplary damages, and that the question of whether exemplary damages are excessive must be determined under the facts of each particular case in order to determine whether or not the award made evidences passion and prejudices. In Cotton v. Cooper, Tex.Com.App., opinion adopted by Supreme Court, 209 S.W. 135, we find this statement: “their proportion or ratio to the amount of actual damages recovered must depend upon the state of facts in any given case.” In 17 Tex.Jur., 2d at page 256, Sec. 187, we find this statement of the rule: “The amount of exemplary damages should be reasonably proportioned to the actual damages sustained.” The ratio in any particular case depends on the facts and necessarily much is left to the discretion of the jury. See Tynberg v. Cohen, 76 Tex. 409; 13 S.W. 315; Cotton v. Cooper, Tex.Com.App., 209 S.W. 135, supra, Flanary v. Wood, 32 Tex.Civ.App. 250, 73 S.W. 1072, writ ref.; See also 22 Tex.Law Rev. 235 and 117 A.L.R.2d 548. In Chemical Express v. Cole, Tex.Civ.App., 342 S. W.2d 773, n. r. e., we find this statement of the rule: “In determining whether a verdict is excessive the evidence must be viewed in a light most favorable to the award. * * * Courts are reluctant to disturb the findings of a jury on the grounds of exces-siveness of the award if there is any evidence to sustain the award.” As stated above, our Supreme Court has not fixed any exact ratio and in other jurisdictions we have found where the awards of exemplary damage have far exceeded, in some cases, the award in this case. For example in State Press Co. v. Willett, Sp.Ct. of Arkansas, in 219 Ark. 850, 245 S.W.2d 403, approved the sum of $1400.00 to $100.00. In Adams v. Cameron (1915) 27 Cal.App. 625, 150 P. 1005, and 151 P. 286, (Calif.) approved award $5000.00 to $300.00. In Cotton Lumber Co. v. La Crosse Lumber Co., 200 Mo.App. 7, 204 S.W. 957, n.w.h., approved a ratio 16 to 1. In Finney v. Lockhart, 35 Cal.2d 161, 217 P.2d 19, approved an award of $2000.00 to $1.00, and in Edwards v. Nulsen (Sp.Ct.Mo.) 347 Mo. 1077, 152 S.W.2d 28, approved an award of $25,-000.00 to $1.00. In Duty v. General Finance Company, 154 Tex. 16, 273 S.W.2d 64, our Supreme Court announced the rule that excessive harassment resulting in physical illness is a tort, and it has not seen fit to change or modify that rule. In this case we find the appellants endeavoring to enforce the collection of the balance on a usurious note for the total sum unpaid of $188.00, and of this amount $50.61 represented usurious interest, and in addition thereto, where the record is sufficient to support the fact that the plaintiff was entitled to have $196.33 in total disability benefit applied to the note. The record fails to show that defendant, at any time, was asking only for the difference between $188.00 and $50.61, but they were demanding the full $188.00 and threatening foreclosure of the mortgage unless such amount was paid. Defendants had a chattel mortgage on the furniture, they had an assignment of wages, they had an insurance policy that was taken out for their benefit; they had, without doubt, knowledge of the very serious illness of Mr. Tate and his wife, yet they continued a course of harassment after they had full knowledge of the illness of both Mr. and Mrs. Tate. The defendants had a note that was past due under its terms; it could have filed suit for its debt and for foreclosure of its chattel mortgage lien, but no doubt they had no desire to go to the court house to collect on a usurious contract, but rather chose the course of conduct of harassment, and in so doing, took extreme measures and went so far as to call the Tates “dead beats” and “liars”. This court cannot approve such methods for the collection of debts or for the enforcement of contracts. It is true that our Supreme Court has not fixed any definite rule as to the ratio that should exist between actual and exemplary damages; however, our Supreme Court in Tynberg v. Cohen, 76 Tex. 409, 13 S.W. 315, supra, made this statement:

“when the actual damages recoverable were small, was a fact which ought to be looked to, to determine whether passion rather than reason dictated the verdict. Whenever this appears, or is rendered highly probable, by contrasting the actual injury with the extent of punishment awarded, looking to all the circumstances of aggravation ⅜ * *.”

We are of the view that under all the circumstances and the record as a whole that the exemplary damage is excessive by the sum of $3000.00.

Point 8 is that: “The judgment is incorrect because there is no evidence to authorize the trial court to set aside the separate, valid and outstanding corporate identities of Houston-American Life Insurance Company, and Houston-American Life Underwriters so as to award plaintiff any monies for personal injuries, actual or exemplary damages, against said two corporations; ” 9 is to the effect that the judgment against the foregoing corporations is against the great weight and preponderance of the evidence; 10 is to the effect that the judgment is incorrect because plaintiff failed to request or obtain the submission of any issue whose answer would constitute legally sufficient facts authorizing a court to set aside the corporate identity of defendants, Houston-American Life Insurance Company and Houston-American Life Underwriters; 11 is to the effect that there is no evidence to show that defendants Houston-American Life Insurance Company and Houston-American Life Underwriters participated in any manner whatsoever in the collection contacts; 12 That the judgment is incorrect because a finding that Houston-American Life Ins. Company or Houston-American Life Underwriters participated in any manner whatsoever in the collection contacts is against the great weight and preponderance of the evidence; 13 The Judgment is incorrect because plaintiff failed to request or submit any issues inquiring in any regard as to Houston-American Life Ins. Company or Houston-American Life Underwriters’ participation in any collection contacts.

A statement is necessary. In plaintiff’s first amended petition she alleged that Life Underwriters owned 96% of the Class A. stock and 75% of the Class B. stock of the Finance Company and wholly owned or owned the controlling interest in the Life Insurance Company. She further alleged that M. V. Corey was president of the Life Underwriters and a director in the other two companies; that John Harris was president of the Finance Company and the Life Ins. Company, and that several of the directors held directorships in all three companies; that all three companies used the same address and the Finance Company and Life Insurance Company were operated as mere departments, adjuncts and instrumentalities of the Life Underwriters; and that the policies and direction of the subsidiaries were managed and controlled by the Life Underwriters for the purpose of creating a monopoly in violation of Articles 7426 and 7429 V.T.C.S; that a condition for making the loan to plaintiff, as well as in all other loans made by the Finance Company during the period involved, said company required borrowers to purchase credit insurance on the commonly owned Life Insurance Company and gave borrowers no choice of insurance company or agent, in violation of Art. 3.53, Sec. 4 of the Ins. Code, V.A.T.S.; and that 50% to 70% of all insurance premiums for said insurance were refunded by the Life Ins Co., to the Finance Company; that in making the said coerced sales of insurance the Houston-American Finance Corporation conspired with Houston-American Life Ins. Company and Houston-American Life Underwriters, and the three defendants combined their capital skill and operations for each of the following purposes:

“(a) To create, tend to create, or carry out restrictions in trade or commerce and in free pursuit of borrowers of purchasing insurance;
“(b) To prevent or lessen competition in the business of selling and purchasing insurance;
“(c) To preclude free and unrestricted competition in the sale of business of insurance; and
“(d) To create a trust or monopoly in restraint of trade, in violation of Art. 7426 and Art. 7429 of the Revised Statutes of Texas.”

Plaintiff further alleged that the word “defendant” as used in the pleading meant “each defendant, unless otherwise stated;” and alleged that the Finance Company made unreasonable collection contacts upon plaintiff, and that defendant ratified each of the acts alleged by various acts including accepting and restraining benefits of such acts after actual knowledge thereof, or after knowledge of facts sufficient to put defendant reasonably on notice of inquiry. That the Life Insurance Company, by failing to make payments upon the timely •claims for insurance benefits, and by failing to make payments upon said claim with the notice and knowledge that the Finance Company would proceed against plaintiff for the alleged balance due on the loan further collaborated and colluded in the harassment tactics used by the Finance Company in collecting on said loan. In a motion for severance filed July 16, 1959, by defendant Houston-American Life Insurance Company, they admitted that during the period of time in question Houston-American Finance Corporation was wholly-owned subsidiary of Houston-American Life Underwriters. They also admitted that Life Underwriters owned 116,672 shares out of 616,607 shares of stock in the Life Insurance Company.

In answers filed to plaintiff’s requests for admissions, the defendants admitted that •during a portion of the applicable period a majority of the stock of the Finance Company and Life Ins. Company was owned by the same stockholders, and also admitted that for a portion of the period Mark Enright owned stock in the Finance Company and the Life Insurance Company, and was President of those two companies, as well as Life Underwriters; that F. L. McNutt was Secretary of all three companies, and that M. V. Cory, Denton Kerr and Ben Ogletree were directors of all three companies, and all three companies operated from the same address, .and the same inter-office correspondence form was used by all three companies. That on April 24, 1959, Life Underwriters and Finance Company merged, with the latter •company being the surviving corporation and on May 6, 1959, the name of that corporation was changed to Standard General Company. The President of the new company, John Harris, had been the President of the Life Insurance Company and the Finance Company; that all pleadings on behalf of the three companies have been filed by Irion, Cain, Cocke and Magee. The finance company admitted that credit insurance was issued in more than 95% of the loans made during the applicable period, and all credit insurance sold by the Finance Company was on Houston-American Life Ins. Company forms; that personnel in the Finance Company were qualified to issue policies of credit insurance for the insurance company; that the life insurance company refunded to the finance company 50% to 70% of all premiums on the said insurance sold by the finance company in connection with loans. Mr. and Mrs. Tate testified to the effect that they tried many many times to get the finance company to get behind their claims for insurance benefits under their policy with the life insurance company; that they even complained to the insurance commissioner, but they were successful in getting the insurance company to make only one payment of $20.00 on the note; that when she and her husband made the loan at the finance company they were given no choice as to the insurance company nor the insurance agent; that Mr. Antes, manager of the finance company, who closed the loan, did not even mention insurance to them until after they had signed all the papers; then he told them they were covered by insurance. Mr. Tate testified to the effect that he and his wife were in the finance company offices for only a few minutes when the loan was made. The man came out with the papers and said “sign them and we will give you a check”; that they were not given an option to purchase the insurance elsewhere; that Mr. Antes said, “We handle that through our own company.” Tate further testified that they did not receive any insurance policy until two and one half months after he got out of the hospital; that he went by the finance company and obtained a copy when he did not get any results from sending in his doctor’s reports; that Tate was asked if Rumph, subsequent manager of the finance company, ever indicated to him that he should be sending his claim forms direct to the Life Insur-anee Company. Mr. Tate’s answer was: “No, they told me to send them all in to their office, Houston-American.”

The credit insurance policy issued to Mr. Tate disclosed that the printed form shows Houston-American Finance Company as first beneficiary. The jury, in its verdict, found that on or about September 21, 1956, the Houston-American Finance Corporation failed to give plaintiff the option to purchase the insurance involved herein from any insurer of his own choice. And further found that Houston-American Finance Corporation charged plaintiff for insurance involved herein with a purpose of obtaining additional compensation for the use of its money; and further found that Houston-American Finance Corporation charged plaintiff a service charge in excess of the reasonable value of special services afforded by Houston-American Finance Corporation to plaintiff. The jury further found that the Finance Corporation required plaintiff to take out an investment certificate as a condition precedent to making plaintiff the loan in question; that defendant was not operating a genuine investment business, and that the investment certificate plan was utilized with a purpose of increasing to a sum in excess of 10% per annum the compensation charged for the use, detention or forbearance of money. The jury further found that the Finance Company and Life Ins. Company were operated as a mere department, adjunct or instrumentality of Houston-American Life Underwriters, and further found that the Finance Company and Life Insurance Company were commonly controlled by Life Underwriters.

Points of error beginning with 8 through 13 complain of the judgment having been rendered against Life Underwriters and the Life Insurance Company upon the ground that there is no evidence or insufficient evidence to justify judgment being rendered against these defendants jointly with the Finance Company. Stated a little differently, that the evidence does not justify the Court’s action in piercing the corporate veils of such companies. We think the foregoing factual situation is controlled by the rule announced in Pacific American Gasoline Company of Texas v. Miller, Tex.Civ.App., 76 S.W.2d 833, w. ref. The rule being stated on page 851:

“The legal fiction of the separate entities of two corporations, the stock of which is owned by the same parties, should be disregarded when necessary for the prevention of fraud or to protect the legal rights of third parties. Upon ascertainment of all the facts, it is the prerogative of the court and not the jury to look through the forms to the substance of the relations existing between the corporations.” (citing a long list of cases). “Upon ascertainment of the facts, the courts will disregard the fiction of corporate entity where the fiction (1) is used as a means of perpetrating fraud; (2) where a corporation is organized and operated as a mere tool or business conduit of another corporation; (3) where the corporate fiction is resorted to as a means of evading an existing legal obligation; (4) where the corporate fiction is employed to achieve or perpetrate monopoly; (5) where the corporate fiction is used to circumvent statute; and (6) where the corporate fiction is relied upon as a protection of crime or to justify wrong.”

It is our view that the evidence of record clearly shows that the court’s action in rendering judgment against the life insurance company, and life underwriters, was justified under the foregoing rule. At all events, it was a question of fact for the jury and there was sufficient probative evidence to support its findings that the subsidiaries were mere departments, adjuncts, etc., and commonly controlled by Life Underwriters. See also State v. Lone Star Gas Company, Tex.Civ.App., 86 S.W.2d 484, w. ref., by Supreme Court, but reversed on other grounds by the Supreme Court of the U. S. in 304 U.S. 224, 551, 58 S.Ct. 883, 82 L.Ed. 1304. See also First National Bank in Canyon v. Gamble, 134 Tex. 112, 132 S.W.2d 100, 125 A.L.R. 265, opinion adopted. In that case the Supreme Court said: “It is the rule that the legal fiction of corporate entity may he disregarded where the fiction is used as a means of perpetrating fraud or is relied upon to justify wrong.” Our view of this record is that the evidence tendered is to the effect that the corporations are not separate entities in fact, but only by legal fiction, and the peculiar facts are such that adherence to the fiction would promote injustice and lead to a most inequitable result. It is our view that corporate fiction was used by Underwriters to perpetrate a fraud; that the finance company induced the borrowers to pay extra for credit insurance without advising them that the finance company would place the insurance with a commonly owned insurance company; that the defendant insurance company collaborated by furnishing the insurance without advising plaintiff of the common ownership that the parent corporation set up the companies for such purpose and reaped the ultimate benefits; that the Finance Company and the Life Insurance Company were mere tools of Life Underwriters, and that the jury had a right to infer that the life insurance company was established to issue insurance on loans financed by the finance company, with a purpose of enabling Life Underwriters to make more money than if the borrower were to place his insurance with an independent agent and company. In the case at bar the Life Insurance Company refused to pay plaintiff’s claim and thereby avoided the taking of the money out of the insurance company and put it in the finance company. Fortunately our laws of entity protect against a finance organization funneling its profits through an insurance company and thereby evading financial responsibility to the victims who are the source of such profits. We think the corporate fiction was employed by the defendants to achieve or perpetrate monopoly in violation of Art. 7426 and 7429, V.T.C.S. We think the record contains facts to the effect that the three companies were under common management and control, and the jury so found, so as to tend to prevent sale of insurance to Tate and other borrowers, and for this reason they constituted a monopoly. Moreover, the corporate fiction was used to circumvent the insurance code and the usury statutes. Sec. 5, of Art. 21.14 of the Insurance Code of Texas provides that the agent for the sale of insurance shall be a Texas citizen of good character actively engaged in good faith in the business of insurance. The purpose of this statute was to afford to the citizens of Texas, including the Tates, the protection which comes from having independent agents counsel and help them in their insurance affairs. One of the evils from which citizens are thus protected in coercion of insurance, including the precise type of coercion practiced against the Tates by defendants through the transaction set up by them in this record. Article 3.53, Sec. 4r of the Insurance Code provides that “no lender or lender agent shall hereafter require as a condition for the making of a loan that the borrower purchase either credit life or credit health and accident insurance from such lender, lender agent or any insurer represented by them.” The law provides that insurance may be required of the borrower but “if, and only if, the borrower is given the option to purchase such insurance from any insurer or insurance agent of his own choice.” The statute concludes with the following language: “It is the intent of this section to prohibit coercion of insurance and to preserve to' each citizen the right to choose his own insurer and insurance agent.” The corporate fiction in this case was used in violation of those provisions as shown by jury findings of failure to give an option.

Another Section of the Insurance Code was violated. Art. 21.02 prohibits anyone from taking or placing insurance other than a licensed agent. In the case at bar the Finance Company actually took and placed insurance. The finance company was not a licensed agent. As a corporation, it was prohibited by Art. 21.14 from being a licensed agent, so it violated Art. 21.02 by placing the insurance. Article 21.11 prohibits a non-resident or an unlicensed person from receiving any commission or other consideration from a policy. Here the commission payment was by-passed by using a corporate employee as purported agent, but the finance company, an unlicensed fictional entity, got the benefits of plaintiff’s policy through the 50% to 70% commission and the holding company got the benefit of the balance of the premiums through its ownership of the insurance company.

Points 8 through 13 inclusive are each overruled. We have carefully considered each of the other points raised by appellants, and each is overruled.

Since we have previously stated that the award of exemplary damages in the amount of $6300.00 is excessive by the sum of $3000.00, and that said cause should be reversed for that reason only, it is our duty under Rule 440 Texas Rules of Civil Procedure, to call the matter to the attention of the attorneys for appellees and specify within what time they may file re-mittitur of such excess. Accordingly, ap-pellees are given ten (10) days from this date in which to file remittitur of $3,000.00 of the exemplary damages awarded for malicious prosecution. If they shall do so within said period of time the judgment will be affirmed, and the costs of this appeal to the filing date of the remittitur shall be taxed against appellees; otherwise, the judgment will be reversed and the cause remanded.

OPINION AFTER ENTRY OF REMITTITUR

Appellee, Eleanor M. Tate, has filed and entered the remittitur of $3,000.00 as exemplary damages, as required by a former order of this court. The judgment of the trial court is reformed in conformity with said remittitur, and as reformed, is affirmed.

All costs of appeal to the date of the remittitur will be assessed against appellee. All the costs in the trial court are assessed against appellants.


author: COLEMAN, Justice.

text:
    SOUTH ATLANTIC & GULF COAST DISTRICT OF INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, INDEPENDENT, et al., Appellants, v. HARRIS COUNTY-HOUSTON SHIP CHANNEL NAVIGATION DISTRICT, Appellee.
    No. 13985.
    Court of Civil Appeals of Texas. Houston.
    May 31, 1962.
    Rehearing Denied June 21, 1962.

      Mandell & Wright, Arthur J. Mandell, Houston, for appellants International Longshoremen’s Ass’n Local 872. Sewall Myer, Houston, for appellants South Atlantic & Gulf Coast District of the International Longshoremen’s Ass’n, Independent, Ralph A. Massey as Representative of the District, Paul F. Koehne, as Representative of the District, International Longshoremen’s Ass’n, Local No. 1273, Willie C. Wells and Jim Clark as Representatives of Local 1273, International Longshoremen’s Ass’n Local No. 1530, and Lloyd Allen as Representative of Local No. 1530.
    L. G. Clinton, Paul R. Robertson, J. L. Lockett, Jr., Houston, Fulbright, Crooker, Freeman, Bates & Jaworslci, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is an appeal from an order temporarily enjoining appellant, International Longshoremen’s Association, Local 1530, from engaging in any strike or concerted work stoppage against appellee, Harris County-Houston Ship Channel Navigation District, and temporarily enjoining the South Atlantic and Gulf Coast District of the International Longshoremen’s Association, Independent, and International Longshoremen’s Association, Locals 872 and 1273, from establishing and/or maintaining a picket line or picket lines at or adjacent to the premises of and directed against the appellee. The order also enjoined a number of persons in their individual and representative capacities, as well as all officers, agents, representatives, servants, employees and members of those unions.

Harris County-Houston Ship Channel Navigation District (hereinafter referred to as The District) is a governmental agency of the State of Texas, and a political subdivision thereof, existing under Art. XVI, Sections 52 and 59, of the Constitution of the State of Texas, Vernon’s Ann.St.

The District owns and operates wharves, warehouse facilities, grain elevators and bulk materials handling facilities in competition with private industry in the Port of Houston. It is engaged in interstate and foreign commerce.

During the year 1961 The District constructed a bulk materials handling plant at a cost of approximately $4,000,000.00 raised by the sale of bonds repayable from the revenue to be derived from the operation of said plant and the other facilities owned by The District. This plant began operations on or about September 21, 1961 and prior to that date The District had assigned its employees to the various jobs involved in its operation.

Prior to the completion of the plant Local 1530, from whom The District’s employees had been selected, and Locals 872 and 1273 disputed among themselves as to jurisdiction over the workmen to be employed in the new plant. Locals 872 and 1273 requested that The District employ workmen for work similar to that customarily performed by longshoremen through their hiring halls. Ralph A. Massey, President of the South Atlantic and Gulf Coast District of the International Longshoremen’s Association, Independent, requested a meeting with The District and the Locals. At this' meeting the differences were made known to Mr. J. P. Turner, General Manager of The District, who informed the meeting that he felt that the work was not longshoremen work and that he proposed to assign the work to members of The District’s operating and maintenance group (members of Local 1530). Thereafter Mr. Massey-submitted a plan of dividing the work among the Locals to The District and the Locals and stated that the executive officers of the International District were insisting that the Locals concur in this plan. Mr. Turner informed all interested parties that he was assigning the work to the maintenance and operating group. Another meeting was held on or about January 5, 1962, at which Mr. Turner denied renewed requests that the work be assigned according to the International District’s plan. The following day two pickets carrying signs advertising a labor dispute were posted on the only road leading into the bulk materials handling plant. The District’s employees refused to cross the picket lines and The District was unable to unload a waiting ship at that plant. The ship was moved to another dock, after which the pickets were removed.

The jurisdictional dispute between the Locals was settled between the Locals involved, but The District, insisting on its right to assign the work to its employees in the operations and maintenance group, brought suit for injunction resulting in the order from which this appeal was taken.

At the trial representatives of Locals 872 and 1273 testified that they were still requesting the work and intended to use all peaceable means to secure it for their membership. They testified that they could not say whether they would or would not post pickets again if another attempt was made to use the facilities of the bulk loading plant.

Appellate courts will not disturb the order of a trial court granting a temporary injunction to preserve the status quo unless the trial judge abused the broad discretion vested in him in determining the necessity for such action. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549; Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460. A careful study of the testimony reveals no such abuse of discretion. While appellants contend that there was no evidence of irreparable damage, we cannot agree. The record shows that appellee has been effectively denied the use of a $4,000,000.00 plant and that as a result it has suffered a loss of revenue. The evidence sustains the trial court’s finding that appellants threaten to continue picketing the plant. We think this sufficient evidence of irreparable injury in view of the fact that private facilities in Port Houston and other ports are available for use by prospective customers.

However appellants say that the trial court lacks jurisdiction to issue the injunction because exclusive jurisdiction over the matter is granted to the National Labor Relations Board by the National Labor Relations Act (Title 29 U.S.C.A. § 151 et seq.) and, in support of their contention, rely on such cases as Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601; Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 427, AFL v. Fairlawn Meats, Inc., 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed.2d 613; and San Diego Building Trades Council, Millmen’s Union Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775.

Appellants assert that in no case do the State courts of Texas have jurisdiction of a labor relations matter affecting interstate commerce, citing Ex parte Twedell, 158 Tex. 214, 309 S.W.2d 834, and Ex parte Dilley, 160 Tex. 522, 334 S.W.2d 425. We do not consider that the cases cited stand for the proposition urged. The State courts clearly have jurisdiction to enforce collective bargaining agreements although the employer is engaged in interstate commerce. Charles Dowd Box Co., Inc. v. Courtney et al., 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483. Ex parte Dilley, supra, held:

“We do not hold that we would never have power to regulate activities in any way relating or touching the Labor Management Relations Act, even though such affected interstate commerce. There now seem to be four means of circumstances under which a state court will be held to have power to regulate, although it would not or might not otherwise be so empowered in light of federal pre-emption. They are: (1) When jurisdiction has been ceded to the state by the National Labor Relations Board pursuant to a cession agreement made under authority of Section 10(a) of the federal labor law (29 U.S.C.A. § 160(a)). * * * Ex parte Twedell, supra; Guss v. Utah Labor Relations Board, supra; (2) Where the activity is of merely ‘peripheral concern’ of the Labor Management Relations Act, or in which the conduct ‘touched interests so deeply rooted in local feelings and responsibility that * ⅜ * we could not infer that Congress had deprived the States of the power to act.’ San Diego Bldg. Trades Council v. Garmon, supra; International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018. * * * (3) Where jurisdiction has not been declined, but has been clearly refused by the National Labor Relations Board. See both Garmon cases, Weber [Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546], County of Door [Plumbers, etc., 298 v. County of Door, 359 U.S. 354, 79 S.Ct. 844, 3 L.Ed.2d 872], and Guss cases, all cited supra. * * *; and (4) Where the conduct involved constitutes violence or threats to the public order.”

Certainly this case stands for the proposition that the State courts are not deprived of jurisdiction merely because an employer (as that word is defined in the Labor Relations Act) is engaged in interstate commerce.

The conduct enjoined by the trial court (striking against a governmental agency oí the State of Texas, and picketing the agency for the purpose of inducing or causing its employees to engage in a strike or organized work stoppage) is conduct which “touched interests so deeply rooted in local feelings and responsibility * * * ” within subdivision (2) set out in the Dilley case. In addition the fact that the National Labor Relations Board has clearly refused, and not merely declined, jurisdiction in labor disputes between governmental agencies of the State and its employees would seem to bring this case within subdivision (3) quoted above from the Dilley case.

We note also that in Ex parte George, 358 S.W.2d 590, the Supreme Court of Texas said:

“Relator refers to our opinion in Ex parte Dilley, supra, wherein we said: ‘There now seems to be four means or circumstances under which a state court will be held to have power to regulate, although it would not or might not otherwise be empowered in light of federal pre-emption.’ He contends that none of the four circumstances exist in the instant case. It should be noted that the four means or circumstances we mentioned were stated in more or less general terms. We did not mean to place a limitation upon the circumstances under which a state court will be held to have power to regulate.”

The National Labor Relations Act, 29 U.S.C.A. § 152(2) and (3), provides: “The term ‘employer’ * * * shall not include * * * any state or political subdivision * *

“The term ‘employee’ * * * shall not include any individual employed * * * by any other person who is not an employer as herein defined.”

The National Labor Relations Board has given effect to the unambiguous exclusionary wording of Sections (2) and (3). Papermakers Importing Co., Inc., 116 N.L.R.B. 267; New Bedford Steamship Authority, 127 N.L.R.B. 1322. The same result has been reached by the Supreme Courts of Georgia, International Longshoremen’s Association v. Georgia Ports Authority, 217 Ga. 712, 124 S.E.2d 733; Oklahoma, International Brotherhood, etc. v. Grand River Dam Authority, Okl., 292 P.2d 1018, and Tennessee, City of Alcoa v. International Brotherhood of Electrical Workers, 203 Tenn. 12, 308 S.W.2d 476. The National Labor Relations Act does not purport to regulate labor relations between subdivisions of a state, such as ap-pellee, and its employees. Therefore appellants’ conduct was neither prohibited nor protected by the provisions of the National Labor Relations Act.

The courts of this State have jurisdiction to prohibit by injunction peaceable picketing for an unlawful purpose even though freedom of speech is thereby restricted. Hughes v. Superior Court of California for Contra Costa County, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985; Ex parte George, supra; Cain, Brogden & Cain, Inc. v. Local Union No. 47, etc., 155 Tex. 304, 285 S.W.2d 942.

Appellants attack the court’s finding of fact that the picketing was for the purpose of inducing appellee’s employees to engage in a strike or organized work stoppage. In Ex parte George, supra, the Supreme Court held that evidence that George picketed the gates used by the refinery’s employees to go to work was sufficient to show that the purpose of the picketing was to induce those employees to honor the picket line, thereby breaching the no-strike provision of their contract. This case, therefore, is authority for the proposition that refusal to cross a picket line is a strike or organized work stoppage, and that placing pickets on the only road leading-into the bulk handling plant would be evidence that the purpose of the activity was to induce appellee’s employees to honor the picket line. Art. 5154c, § 3, Vernon’s Ann.Tex.St., provides that it shall be against the public policy of the State of Texas for public employees to engage in strikes or organized work stoppages against the State of Texas or any political subdivision thereof. We think it follows that the public policy of this State forbids any person or organization to induce or seek to induce a public employee to engage in such a strike. In view of this holding, we think it unnecessary to determine whether or not the evidence in this case establishes that a purpose of the picketing was to secure from The District a collective bargaining contract or recognition as a collective bargaining agency, purposes which are also forbidden by Art. 5154c. Cain, Brogden & Cain, Inc. v. Local Union No. 47, etc., 155 Tex. 304, 285 S.W.2d 942; Texas State Federation of Labor v. Brown and Root, Inc., 246 S.W.2d 938, Tex.Civ.App.. ref., n. r e.

We do not think that the provision of Art. 5154c, V.A.T.S., declaring it to be the public policy of this State that employees of the State or a political subdivision thereof shall not have the right to strike, or our decision that public policy prohibits peaceable picketing for the purpose of inducing such a strike, violates any constitutional guarantee secured to any of the appellants by either the Constitution of the United States of America or the Constitution of the State of Texas. In Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985, the Supreme Court of the United States said:

“‘[T]he domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states,’ Palko v. State of Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 153, 82 L.Ed. 288, no doubt includes liberty of thought and appropriate means for expressing it. But while picketing is a mode of communication it is inseparably something more and different. Industrial picketing ‘is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.’ * * *
“ * * * However general or loose the language of opinions, the specific situations have controlled decision. It has been amply recognized that picketing, not being the equivalent of speech as a matter of fact, is not its inevitable legal equivalent. Picketing is not beyond the control of a State if the manner in which picketing is conducted or the purpose which it seeks to effectuate gives ground for its disallowance. * * * ‘A state is not required to tolerate in all places and all circumstances even peaceful picketing by an individual.’ ”

In International Brotherhood of Teamsters, etc. v. Vogt, 354 U.S. 284, 77 S.Ct 1166, 1 L.Ed.2d 1347, the Supreme Court o* the United States, after reviewing previous cases, stated: “This series of cases, then, established a broad field in which a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy(emphasis added)

Courts of other states have upheld state statutes prohibiting strikes against governmental agencies where these constitutional questions were raised. City of Detroit v. Division 26 of Amalgamated Association, etc., 332 Mich. 237, 51 N.W.2d 228, appeal dismissed 344 U.S. 805, 73 S.Ct. 37, 97 L. Ed. 627, rehearing denied 344 U.S. 882, 73 S.Ct. 164, 97 L.Ed. 683; City of Los Angeles v. Los Angeles Bldg. & Const. Trades Council, 94 Cal.App.2d 36, 210 P.2d 305; I. L. A. v. Georgia Ports Authority, 217 Ga. 712, 124 S.E.2d 733.

Whether or not appellee was engaged in a governmental function or a proprietaiy function in the operation of the bulk loading plant is immaterial to a decision of this case. 31 A.L.R.2d 1145, at p. 1149; City of Alcoa v. International Brotherhood of Electrical Workers, 203 Tenn. 12, 308 S.W. 2d 476; City of Los Angeles v. Los Angeles Bldg. & Construction Trades Council, supra; Bennett v. Brown County Water Improvement District, 153 Tex. 599, 272 S. W.2d 498.

We have found it unnecessary to consider assignments of error Nos. 15 and 16 relating to the sufficiency of the evidence to support certain findings of fact presented on behalf of appellant Local No. 872. The evidence is sufficient to sustain all other findings of fact made by the trial court.

The judgment of the trial court is affirmed.


text:
    N. A. MINSKY, Appellant, v. HARDWARE MUTUAL CASUALTY COMPANY, Appellee.
    No. 4012.
    Court of Civil Appeals of Texas. Waco.
    June 7, 1962.
    Rehearing Denied June 28, 1962.
    Shields, Jones & Whittington (Ewing Jones), Dallas, for appellant.
    Jackson, Walker, Winstead, Cantwell & Miller (L. P. Bickel), Dallas, for appellee.
   TIREY, Justice.

This action is one to recover expenses for medical services grounded on the provisions of a family automobile policy issued to appellant by appellee. The jury in its verdict found substantially that Ida Minsky sustained bodily injuries caused by an accident while she was a passenger in an automobile, said accident having occurred on June 3, 1959; that it was necessary for her to have hospital services because of such injuries and fixed her necessary hospital charges for services at $1208.95, and fixed the cost of her nursing services at $42.00; and further found that the progress of Mrs. Minsky’s cancer was not the sole cause of plaintiff’s expenses for hospital services, and that the progress of the cancer was not the sole cause of her nursing expenses, and fixed attorney’s fees for the prosecution of the suit at $1200.00. Plaintiff did not file a motion for judgment on the verdict, but did file a motion for judgment non obstante veredicto. In his motion he averred that the undisputed evidence showed that reasonable professional nursing charges amounted to $4974.00 for Mrs. Minsky; that the evidence was undisputed to the effect that the reasonable cost of hospital services necessary as a result of the automobile accident to be $5841.00, and he asked the court to substitute his own findings as requested, and to render judgment in plaintiff’s favor for the sum of $5000.00, plus 6% interest from January 29, 1960, plus damages of 12% of the $5000.-00, amounting to $600.00, and plus reasonable attorney’s fees of $1200.00 as found by the jury. The court overruled this motion and entered a take nothing judgment in favor of appelleee, to which order the plaintiff duly excepted and gave notice of appeal to the Dallas Court. Thereafter, plaintiff seasonably filed his motion for new trial, which was duly overruled. In the judgment we find this recital: “The parties agreed and stipulated, by and through their pleadings and by and through their attorneys, that the Liberty Insurance Company of Texas had paid to the Plaintiff two Thousand Dollars ($2000.00) and that such insurance was primary and that in order for the Plaintiff to recover anything against Defendant, it would be necessary that he prove that he had incurred expenses in excess of this amount for necessary medical, hospital and professional nursing services for his wife for injuries caused by accident. * * ⅜

“After considering the pleadings, evidence, argument of counsel, jury verdict, stipulation of parties, and the record as a whole, the Court hereby finds unsubmitted matters and issues in favor of Defendant and is of the opinion that a take-nothing judgment should be entered in favor of Defendant,” and decreed accordingly.

The judgment is assailed on 5 Points. Points 1 and 4 are to the effect that the Court erred in overruling plaintiff’s Motion for Judgment Non Obstante Veredicto because the answer of the jury to Issue 6 was contrary to the undisputed evidence, in that such evidence showed that the reasonable cost of hospital services necessary for Mrs. Minsky was $5741.00, and further that the answer of the jury to Issue 6 is so against the overwhelming weight of the evidence as to be manifestly wrong and unjust. Points 2 and 5 are to the effect that the court erred in overruling plaintiff’s Motion for Judgment Non Obstante Veredicto because the jury’s answer to Issue 8 was contrary to the undisputed evidence and that the undisputed evidence established conclusively and as a matter of law that the reasonable costs of nursing services of Mrs. Minsky for her injuries sustained in the automobile accident were $4974.00, and that the answer of the jury to the effect that it was $42.00 is so against the overwhelming weight of the evidence as to be manifestly wrong and unjust. Point 3 is to the effect that the Court erred in overruling plaintiff’s Motion for Judgment Non Obstante Veredicto because upon the undisputed and uncontradicted evidence, as a matter of law, shows that plaintiff was entitled to judgment of $5000.00 plus 6% from January 29, 1960, plus 12% of the $5000.00, amounting to $600.00, plus reasonable attorney’s fees of $1200.00 as found by the jury.

A statement is necessary. Appellant was the named insured and appellee the insurer in a “family automobile policy” by which appellee agreed under coverage C: “to pay all reasonable expenses incurred within one year from the date of accident for necessary * * * hospital, professional nursing * * * services * * * to or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’ caused by accident while occupying * * * an automobile.” The action was grounded upon coverage C to recover from appellee certain expenses, incurred over a 10 months’ period, for hospital and nursing services which he alleged to be necessary for an injury sustained by his wife in an accident while she was a passenger in an automobile. Testimony was tendered to the effect that the accident in which Mrs. Minsky was involved occurred on June 3, 1959, and that she had suffered from metastatic cancer since 1954 and that it had spread to her bones by August, 1958; that it was not until June, 1959 that X-rays revealed that Mrs. Minsky had a subcapital fracture of the left femur which had by then partially healed. The jury, in its verdict, found that Mrs. Minsky’s injuries were caused by the injuries of June 3, 1959. Mrs. Minsky was placed in the hospital on June 19, 1959 and remained there until July 1, 1959, at which time she was taken home. On July 6, 1959 she returned to the hospital and remained there until August 25, 1959. Her Gaston Hospital expenses from the date of the accident until August 25, 1959 were $1208.95 and her nursing expenses for the same period were $42.00.

On August 25, 1959, Mrs. Minsky was transferred to Baylor Hospital, where, on August 28th she underwent an operation for the removal of her pituitary gland. The purpose of this operation was to retard the growth of cancer which had spread to the bone from the breast. She remained at Baylor until October 7th, when she went home. She did not have professional nursing services at home.

On October 24, 1959 she returned to Gas-ton Hospital and was continually hospitalized there until she died on April 12, 1960. She had nurses almost every day after December 20, 1959. There is no testimony that after August 25, 1959, either hospitalization or nursing care would have been necessary for the accidental injury, even in the absence of the natural progress of the cancer.

The testimony of Dr. D’Errico, who performed the operation, and of two other doctors who had treated Mrs. Minsky for a number of years, is that the operation of August 28, 1959 was for the cancer and had nothing to do with an accidental injury, and that the treatment given to Mrs. Minsky after July, 1959 and expenses incurred therefor were not for an injury she may have sustained in an automobile accident, but solely for the disease of cancer.

Dr. McNeill, the surgeon whose partner had operated on Mrs. Minsky for cancer in 1954, who had treated her thereafter, and who had referred her to Dr. D’Errico, testified by deposition in part:

“Q. Assuming it was in August after the pathological fracture in the femur in June, it was in August she was re-admitted into Baylor Hospital and the gland removed by Dr. D’Errico. The operation Dr. D’Errico did was not proximately caused by or contributed to by any injury she received in the automobile accident in June?
“A. No, sir. The only reason for that was because of the disease of cancer.
“Q. After she got out of Gaston Hospital in July, 1959, all the treatment that was given to her was for the natural progress of the cancer?
“A. That is correct.
“Q. And would have been given to her in the absence of any accident?
“A. That is correct.
“Q. I will ask you, assuming that in the accident of June 3, 1959, she did in fact receive a fracture to the head of the left femur, assuming it was caused by that rather than by the disease, would the treatment for that and the expense incurred for that treatment be limited to, as far as you are concerned, the hospitalization in Gaston during the latter part of June and July, 1959?
“A. I would say yes.”

Dr. Ulevitch, a cancer specialist, testified in part:

“Q. Doctor, was this hospitalization at Baylor in any way caused by any injury she may have received in the accident of June 3, 1959?
“A. I would not consider it as being directly as a result of the accident because if the hip were the only part involved, this procedure would never have been imposed, we just wouldn’t be justified in doing it. * * *
“Q. Did the disease ever get into the spine?
“A. It sometimes runs into every part of the body; I would say that she had it in almost every bone of her body.
“Q. Is there any way in the world * * * to carve out how much of the medical bills were attributed to the fracture, any fracture that she might have had, as distinguished from the treatment that she had for the condition she was in, in general ?
“A. I will put it this way, Dr. Paul Williams’ bill certainly could be related definitely to the fracture, also the hospitalization of June 1959; I believe it would definitely be related to the fracture.
“Q. And after the hospitalization of June, 1959, it probably should not be related to the fracture; is that correct?
“A. With the progression of the disease what it was, she was required to have treatment not only on account of the fracture but for the other things as well; even in August, 1959, at the time the hypothesectomy was done, she was in the hospital then not for the fracture but for the generalized disease.
“Q. Would you say that after the hospitalization and after the treatment following June 15 and immediately thereafter, that hospitalization was related to the generalized disease rather than to the fracture?
“A. Shortly thereafter, sometime shortly after the 15th of June is when she was hospitalized.
“Q. And then she was hospitalized again later on for this other condition?
“A. Yes. * * *
“Q. The treatment that was administered to her during the June hospitalization then consisted partly of this radiation ?
“A. Yes, in June and July; but I feel that the hospitalization in June and July definitely should be attributed to the fracture.
“Q. It could be?
“A. It could be, yes.
“Q. And thereafter it should not?
“A. I don’t think so.”

Testimony was tendered to the effect that Mrs. Minsky’s total expenses for nursing services for the entire period from the date of the automobile accident, June 3, 1959, until the date of her death, April 12, 1960, were $4974.00 of which sum $4043.50 was incurred after December 20, 1959. During this period of ten months, the total expenses she incurred for hospital room and board were, according to appellant’s figures, $5,741.00.

It is without dispute that Mrs. Minsky-had suffered from cancer for years before the automobile accident, and that there intervened between the date of the accident and the date of her death, a period of ten months, during which she underwent a major operation solely for cancer and wholly unrelated to the accidental injury. As we understand the record, appellant did not make any attempt to segregate the expenses that were necessary for the accidental injury and the expenses that were necessary for the treatment of the cancer, and we do not think his brief does so. As we understand appellant’s position, it is that all nursing expenses and all charges for hospital room and board incurred during the entire ten months’ period were necessary for the injury sustained by Mrs. Minsky in the automobile accident and covered by the family automobile policy issued to appellant by appellee. We have previously pointed out that the driver of the car in which Mrs. Minsky was riding carried a policy with an insurance company similar to appellant’s policy with appellee, and that appellant had already recovered $2,000.00 under that policy because of the accidental injury, and it was stipulated by the parties that appellant could recover from appellee only expenses in excess of $2,000.00 found by the jury to be reasonable and necessary for the injury. Since the necessary expenses found by the jury totalled only $1250.25, the Court entered judgment to the effect that appellant take nothing from appellee.

Going back to the charge of the Court, appellant made no complaint either as to the form or as to the contents of the charge, and the jury found that Mrs. Minsky sustained bodily injuries caused by the automobile accident of June 3, 1959, and that it was necessary for her to have hospital and nursing services for such bodily injury, and found that the reasonable cost of such necessary hospital and nursing services was $1208.95 and $42.00 respectively. These amounts represented all hospital and nursing expenses incurred by Mrs. Minsky up to August 25, 1959, when she was transferred to Baylor Hospital for the operation in which her pituitary gland was removed. We think it is obvious that the jury either concluded that appellant failed to prove from a preponderance of the evidence that the hospital and nursing expenses after August 25, 1959 were necessary for the injury Mrs. Minsky sustained in the accident, or accepted the testimony of Dr. McNeill, Dr. D’Errico, and Dr. Ulevitch that the hospitalization and expenses after August 25, 1959 were not for the accidental injury, but for the natural progress of the pre-existir j cancer. The only question before this Court is whether the jury was justified in reaching its result. We think it was.

Since appellant brought his suit to collect under a contract of insurance, which contract afforded coverage only for reasonable expenses which were necessarily incurred for injuries caused by an automobile accident, it follows that he had the burden of proving that the expenses for which he sought reimbursement were reasonable and were necessary because of the injuries sustained by Mrs. Minsky in the accident. See American Ins. Co. v. Maddox, Tex.Civ.App., 60 S.W.2d 1074, no writ; International Travelers Ass’n v. Marshall, 131 Tex. 258, 114 S.W.2d 851.

Needless to say, appellee’s general denial placed upon appellant the burden of proving all the facts necessary in support of a recovery against appellee. See Boswell v. Pannell, 107 Tex. 433, 180 S.W. 593; Bracewell v. Balentine, Tex.Civ.App., 25 S.W.2d 279. The Court’s charge properly placed the burden of proof upon appellant, and there was no objection to the charge, nor is any point raised that the burden of proof was improperly placed. As we understand the rule in Texas, appellant had to show from a preponderance of the evidence the amount of Mrs. Minsky’s expenses that he could recover under the terms of the policy issued to him by appellee, and now, under the jury’s verdict, he has the further burden of showing that the jury’s findings as to what these amounts were must be rejected by the appellate court. This, we think, he has wholly failed to do.

Since the jury found that Mrs. Minsky did sustain an accidental injury, the question before us now is not whether Mrs. Minsky sustained an accidental injury, but whether appellant has shown, as a matter of law, by undisputed and conclusive evidence, that 10 months of hospital and nursing expenses were necessary for the accidental injury. We are of the view that appellant has wholly failed to carry this burden. Appellant attempts to show that he has carried the burden in this regard by quoting extensively from the medical testimony tendered. The testimony relied upon by appellant consists entirely of the opinions of medical witnesses, and if this testimony was uncontradicted, it could only have raised a fact issue for the jury’s determination. See Hood v. Texas Ind. Co., 146 Tex. 522, 209 S.W.2d 345; Consolidated Cas. Ins. Co. v. Baker, Tex.Civ.App., 297 S.W. 2d 706, n. r. e.

Appellant contends in effect that since Mrs. Minsky sustained a fracture in the accident of June 3, 1959, which injury required her to be hospitalized and to have the care of nurses, it is to he presumed that such conditions continued to exist and that the hospitalization and nursing care were necessary for the injury until Mrs. Minsky died on April 12, 1960. There is no merit in this contention. See Mayhew v. McFarland, 137 Tex. 391, 153 S.W.2d 428. It is only a conclusion which may be drawn by the trier of facts but which even in the absence of conflicting evidence, does not forestall a fact finding to the contrary. See Seydler v. Baumgarten, Tex.Civ.App., 294 S.W.2d 467, n. r. e.; McCormick and Ray, Texas Law of Evidence, Sec. 81, 1956. Under the jury’s finding, and under the evidence and the record as a whole, appellant’s theory of presumption passes out of the case. See Missouri Pacific R. R. Co. v. Mendoza, Tex.Civ.App., 337 S.W.2d 622, n. r. e. That leads us to say, again, that under the jury’s verdict no hospital and nursing expenses after August 25, 1959 were necessary for the accidental injuries, and that such finding is not against the great weight and preponderance of the evidence; but on the contrary, we think the jury’s verdict is supported amply by the evidence.

Finally, the trial court impliedly found upon sufficient evidence that the hospital and professional nursing expenses incurred by Mrs. Minsky after August 25, 1959 were not proximately caused by the accidental injury she sustained on June 3, 1959. We are in accord with this view. See Federal Life Ins. Co. v. Raley, 130 Tex. 408, 109 S.W.2d 972.

Going back -to the charge, it contains a special issue inquiring if Mrs. Minsky’s injury was proximately caused by the accident; but it contained no special issues inquiring whether the hospital and professional nursing expenses (the loss here) were proximately caused either by the injury or by the accident (the peril insured against). It was the duty of appellant to see that these issues were submitted under Rule 279, Texas Rules of Civil Procedure. Since he did not do so, it is now presumed that the element of proximate cause was found in favor of appellee by the District Court. We have previously stated that there is ample evidence in the record to support this implied finding. We have considered each of appellant’s points, and each is overruled.

The judgment of the trial court is Affirmed.