author: MOORE, Justice.

text:
    KIRBY PETROLEUM COMPANY, Appellant, v. Mrs. Mildred S. JONES et al., Appellees.
    No. 55.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 8, 1964.
    Rehearing Denied Nov. 12, 1964.
    B. Jeff Crane, Jr., and Raybourne Thompson, Jr., Vinson, Elkins, Weems & Searls, Houston, for appellant.
    W. James Kronzer, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellees.
   MOORE, Justice.

This is a suit under the Workmen’s Compensation Act instituted by Mrs. Mildred Jones and her two daughters, Mrs. Jo Frances Jones Chastain and Virginia Merrill Jones, against United States Fidelity & Guaranty Company, to set aside an award of the Industrial Accident Board denying them compensation benefits by reason of the death of John Quincy Jones, their husband and father, respectively. In addition to the suit against the compensation insurance carrier, Plaintiffs also joined the employer, Kirby Petroleum Company, as a party Defendant, and sought damages against Kirby for wrongful death. Plaintiffs alleged that John Quincy Jones was an employee of Kirby Petroleum Company and met his death while engaged in the course and scope of his employment as an oil field pumper for Kirby Petroleum Company, and was thus entitled to death benefits against Defendant, United States Fidelity & Guaranty Company, by reason of the Workmen’s Compensation Act of Texas, and alleged that manifest hardship and injustice would result if the compensation was not paid in a lump sum. In the alternative, Plaintiffs alleged that if in the event it was found that the deceased, John Quincy Jones, was not an employee of Kirby Petroleum Company at the time of his injuries, then in such event, he was an independent contractor and that his death was brought about by the negligence of Kirby Petroleum Company thus entitling Plaintiffs to damages under the Wrongful Death Act.

Defendant, United States Fidelity & Guaranty Company, denied the allegations of Plaintiffs’ petition and specially denied that the deceased was an employee of Kirby Petroleum Company, and further plead that by electing to sue Kirby Petroleum Company under the Wrongful Death Act, Plaintiffs waived the benefits available to them by virtue of the Workmen’s Compensation Law. Defendant, Kirby Petroleum Company, denied generally the allegations of the Plaintiffs’ petition, and set up the fact that it carried Workmen’s Compensation Insurance and further plead contributory negligence an assumed risk on the part of the deceased, as well as unavoidable accident.

Prior to trial, Defendant Kirby Petroleum Company moved for a severance, alleging that the cause of action against it was improperly joined with the cause of action asserted against United States Fidelity & Guaranty Company, and further alleging that such improper joinder was prejudicial to the interest of Kirby in that Kirby could not receive a fair trial because the question of insurance coverage would be before the jury and would thereby be prejudicial and inflammatory to the rights of Kirby. The motion was overruled, and the trial proceeded against both Kirby and the above-named compensation insurance carrier.

Trial was before the jury. In response to the following numbered Special Issues, the jury found: (1) that the connection between the brake rod leading to the brake handle and the eccentric on the pumping unit was defective; (2) that Kirby failed to make such an inspection for the defective condition as would have been made by a reasonably prudent oil production company under the same or similar circumstances; (3) that such failure was a proximate cause of the fatal injuries; (4) that immediately prior to the fatal injuries, deceased did not actually know of the condition of the connection of the brake rod leading to the brake handle and the eccentric; (5) that deceased did not actually appreciate the danger incident to working around and about the connection between the brake rod, leading to the brake handle and eccentric; (6) that deceased failed to determine that a cotter pin was missing from the braking mechanism; (7) that such failure was not negligence; (9) that deceased did not fail to make such an inspection of the pumping unit as would have been made by a person of ordinary prudence in the exercise of ordinary care; (11) that deceased was not aware that the cotter pin was missing from the braking mechanism; (16) that in attempting to change the tailbearing of the pumping unit in question,' without assistance, deceased did not fail to exercise that degree of care which would have been exercised by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances; (18) that the occurrence was not the result of an unavoidable accident; (19) that the damages sustained for the pecuniary loss by Mrs. Mildred Jones was $80,000.00; (20) that the damages sustained for the pecuniary .loss by Virginia Merrill Jones was $15,000.00; (21) that the damages sustained for pecuniary loss sustained by Mrs. Jo Frances Jones Chas-tain was $5,000.00.

Immediately following the foregoing Special Issues, the Court in its charge instructed the jury as follows:

“If you have answered either Special Issue No. 1, No. 2, or No. 3, or either of them, ‘We do not’ or if you have answered Special Issue No. 5, ‘He did actually appreciate,’ or Special Issue No. 18, ‘It was an unavoidable accident,’ or Special Issues No. 8, 10, 14 or 17 or 15, ‘We do,’ and only in either of the said events, then answer: * * *

Then followed numerous Special Issues dealing with the claim for Workmen’s Compensation Insurance, inquiring as to (1) whether deceased was an employee of Kirby; (2) whether good cause existed in failing to timely file a claim for compensation; (3) whether manifest hardship and injustice would result if compensation was not paid in a lump sum. In view of the above instruction by the Court, and because of the jury’s answers to the Wrongful Death Issues in a manner favorable to the Plaintiffs, the jury, in accordance with the Court’s instruction, was not required and the jury did not, therefore, answer any of the issues dealing with the claim for Workmen’s Compensation.

Based upon these findings, the Court rendered judgment for Plaintiffs against Kirby, and rendered a take-nothing judgment against Plaintiffs in their suit against United States Fidelity & Guaranty Company, to which judgment Kirby Petroleum Company has perfected this appeal.

The evidence reveals that under the terms of a written contract of employment between Jones and Kirby, Jones agreed to operate Kirby’s wells as an independent contractor, agreeing to perform all duties customarily required in the flowing and pumping of the wells, adjusting chokes and flow devices, gauging tanks, witnessing runs to transporters and to prepare and mail daily reports of production to such persons and firms as Kirby might designate. Kirby agreed to make all repairs to the equipment necessary to the operation of production, and Jones agreed to make such minor mechanical adjustments or other repairs as are ordinarily performed by a pumper in the course of his regular duties, which would be paid for by Kirby, but under the agreement, Jones was required to notify Kirby of the need of repairs. The contract further required Jones to carry public liability insurance on his automobile and to carry Workmen’s Compensation on any of his employees employed to do any work on the lease, and required him to comply with the Fair Labor Standards Act, Social Security laws and all other State and Federal laws.

The undisputed evidence shows that on April 21, 1961, deceased met his death when a counter-weight on a pumping unit located on Well No. 2 of the Eyers Lease fell on him. A small gravity motor was used for propelling the pumping unit. The pump was equipped with a large metal counterbalance which revolved 360 degrees vertically on the shaft propelled by the motor and, by the force of gravity, would ordinarily revolve downward to its lowest position when the motor was turned off. In order to hold the counter-balance at any other position, it was necessary to apply a handbrake. This brake was simply a friction device which used leverage and a rod which bore most of the force in holding the counter-balance in an upward or horizontal position. The brake handle was in turn connected to an eccentric which was connected to a rod allowing the leverage force to he applied. The rod was connected to the eccentric by the use of a cotter pin in such a manner that the entire braking mechanism to some extent depended upon the cotter pin. From the testimony, it can be adduced that some time prior to 9:00 p.m. on April 21, 1961, deceased, while acting in his capacity as a “contract pumper” for Well No. 2 located on the Eyers Lease, had gone to Well No. 2 and was attempting to change a tailbearing in the pumping unit and was crushed to death by reason of the counter-weight on the pumping unit having revolved upon its axis and having come down upon him. At the time his body was found, he appeared to be in a squatting position with the counter balance resting upon the upper portion of his body, thus crushing his body against the base of the pumping unit. The cotter pin which held the brake rod was missing, thereby rendering the brake inoperative and thus allowing the counter-balance to revolve downward upon him. The cotter pin was never found nor is there any explanation in the testimony as to what happened to it or how long it had been missing.

Plaintiffs produced evidence showing that Jones had worked for Defendant Kirby for six years as a pumper immediately preceding his death; that during such time Kirby had made no material change in the pumping equipment used, nor during such time had Kirby caused any general inspection to be made of its equipment or the braking mechanisms on the pumping units nor had Kirby made any repairs thereon. Plaintiffs further produce testimony showing that the counter-balance would not have fallen if the brake rod had not been disconnected, and the brake rod would not have become disconnected had the cotter pin not been missing; that the cotter pin would not have come out of the brake rod if it had been properly installed unless it had broken or had been cut out; that the fact that the cotter pin was missing could have resulted from either long use causing it to wear in two, or it could have broken due to its weakness from crystallization or strain, and that such a cotter pin would not ordinarily fall out of its place from pressure,or strain on the brake rod connection unless the pin had been defective. It was further shown that the connection of the rod and the eccentric was such that same could have held together for some time because of the tension of the joint without the presence of a cotter pin. At the time of the death of the deceased, supervision of the Lease was being exercised by Kirby from its home office in Oklahoma, a distance of approximately 650 miles from the Eyers Lease. Kirby had never made any inspection of the brake mechanism, nor had deceased been employed by Kirby to do safety inspection work in addition to his duty as a pumper. ;

By the first Point of Error, Appellant Kirby contends that the Trial Court committed error in refusing to grant its Motion for Severance and thereby requiring the compensation suit against the insurancé carrier and the damage suit against it'to be tried simultaneously, contending that such joinder is prohibited by Section 6a of Article 8307, Vernon’s Ann.Tex.Civ.St:, which reads in part as follows:

“Where the injury for which compensation is payable under this law was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employé may at his option proceed either at law against that person to recover damages or against the association for compensation under this law, but not against both, and if he elects to proceed at law against the person other than the subscriber, then he shall not be entitled to compensation under this law. * * * ”

Appellees counter this contention by pointing out that “The parties originally joined in this case do not fall within the purview of Article 8307, Section 6a, Civil Statutes of Texas, as contended by Appellant. Section 6a specifically has application only in situations where a subrogation right arises in behalf of an insurance carrier for a compensable injury negligently caused by the third party. No subrogation interest can inure against a negligent employer who has subscribed to the act The language of Section 6a clearly limits the application of the section to situations: ‘Where the injury (is one) for which compensation is payable under the law was caused under circumstances creating a legal liability in some person other than the subscriber * * *.’ ”

Appellees further contend that since the compensation carrier has no right of sub-rogation against the subscriber as distinguished from some third person, the joinder of the employer (subscriber) is not prohibited but is authorized by Rule 51, Texas Rules of Civil Procedure, to prevent a multiplicity of suits.

While it may be true that Section 6a of Article 8307 does not specifically prohibit the joinder of an employer-subscriber in a suit for damages wherein the employee also sues for Workmen’s Compensation benefits, we are of the opinion that under the general rules of practice in this state there was a misjoinder of the two causes in this case. Not only is Appellees’ compensation suit dependent upon the statutes, but the measure of damages sought by reason thereof is purely statutory. The measure of damages in Appellees’ compensation suit and the measure of damages in the Appellees’ damage suit are entirely different from each other, and depend in a great measure on different facts. The defense that deceased was an independent contractor and the defense that the injuries were not received while deceased was working in the course and scope of his employment with Kirby are defenses which were available to the insurance carrier, but would not be defenses which would be available to Appellant Kirby; likewise, the common law defenses of assumed risk, contributory negligence and unavoidable accident available to Kirby could not be urged by the compensation insurance carrier as a defense to the Appellees’ suit. Furthermore, evidence which would be admissible and competent in the Appellees’ compensation suit, especially on their claim that manifest hardship and injustice would result to them unless they were paid the statutory damages in the lump sum would not only be incompetent, but if admitted in Appellees’ suit against the compensation insurance carrier would be reversable error as to Kirby. As pointed out before, Appellees in their suit against the compensation carrier sought a lump sum settlement and evidence was introduced for the purpose of showing that manifest hardship and injustice would result to the Appellees unless the compensation was paid in a lump sum. To hold that a suit against a compensation carrier for Workmen’s Compensation Insurance, and a suit against the employer for damages can be tried at the same time would be to ignore the simple facts of the case. It would require the Court throughout the trial to instruct the jury that certain portions of the evidence were admissible as against one Defendant, while at the same time the same evidence was not admissible as against the other Defendant. It would allow the claimant, as they did in this case, to prove all the transactions, dealings, conversations and relationships with an insurance company without being required to confine such evidence to the compensation insurance carrier involved in the case, and the Court would be helpless in instructing the jury in regard to insurance coverage for fear that any instruction would, in effect, be advising the jury as to whether the employer did or did not carry liability insurance. This cause was styled throughout the pleadings, as well as in the Court’s charge, as Mrs. Mildred S. Jones, et al vs. United States Fidelity & Guaranty Company, et al. We believe that the trial of the Appellees’ suit against the compensation insurance carrier, and the trial of their suit against the employer, if joined, would necessarily result in such confusion in the minds of the jury as to the issues in both suits as to render a joinder of the two suits impractical, even with our liberal doctrine in reference to the joinder of causes of action. Fidelity Union Casualty Co. v. Riley (Tex.Civ.App.), 26 S.W.2d 682. In reaching this conclusion, we are not unmindful of the holdings in the cases of Southern Casualty Co. v. Freeman (Tex. Com.App.), 24 S.W.2d 370 and Hartford Accident & Indemnity Co. v. Christensen (Tex.Civ.App.), 223 S.W.2d 45, wherein it is indicated that an injured employee in bringing suit for Workmen’s Compensation Insurance might also join his employer in a common law action for damages.

However, in each of these cases, it will be noted that the point involved here was not passed upon in that the employer was exonerated and was not in either of those cases a party before the Appellate Court and therefore made no complaint, and the error, if any, as against the compensation carrier was harmless. In the case at bar, however, the employer, as distinguished from the compensation insurance carrier, is before the Court complaining of the action of the Trial Court and in our opinion has demonstrated harmful error. To hold to the contrary would be to say that in all future cases of this type, the Trial Court would be permitted in his discretion to allow both the compensation carrier and the employer to be joined in one action, and that the admission of evidence allowable under the issue of manifest hardship and injustice would either be admissible against the employer or would be such that the Trial Court could erase the same from the minds of the jury by an instruction. Such evidence would, in our opinion, be wholly inadmissible and prejudicial against the employer, while to say that an instruction could erase the prejudicial effect of such testimony upon the minds of the jury would be entirely unrealistic.

There is yet another reason why we believe the Trial Court should have granted the Motion for Severance. Prior to the trial of this cause, Plaintiffs requested Defendant Kirby to admit that the deceased was an independent contractor. Kirby admitted this to be a fact, thus admitting Plaintiffs’ right to bring suit in a common-law action under the Wrongful Death Statute. Kirby did not plead that deceased was an employee, nor did Kirby seek any of the protective benefits afforded by the Workmen’s Compensation Law. Therefore,, as between the Plaintiffs and Kirby, any question involved in the Plaintiffs’ suit against the compensation insurance carrier became completely irrelevant and immaterial. We believe the situation to be somewhat analogous to that presented in Hudson. Underwriters Agency of Franklin Fire Ins, Co. v. Ablon (Tex.Civ.App.), 203 S.W.2d 584, wherein the Court quoted the following language of the Supreme Court:

“ ‘In determining whether the actiom of the trial court in the present case in< admitting the testimony objected to by" the state was prejudicial, we are persuaded by the fact that any testimony" which is immaterial, and tends to becloud the issues and confuse and mislead the jury, is prejudicial in its effect. Such was the holding in Bar-rington et al. v. Duncan, 140 Tex. 510), 169 S.W.2d 462, and Rojas v. Vuocolo,, 142 Tex. 152, 177 S.W.2d 962. It is ordinarily error for plaintiff to mention the fact in the presence of the jury that the defendant is insured against the liability which he is seeking to establish, or that he has no protecting insurance. For the same reason it is error to refer to the fact that the plaintiff is protected by some form of insurance. It is improper in either case because such fact is irrelevant and immaterial and is calculated to work injury. Rojas v. Vuocolo, and cases there cited.’ (Italics ours.)” Myers v. Thomas, 143 Tex. 502, 186 S.W.2d 811, 813. See, also, Johnson v. Willoughby (Tex.Civ.App.), 183 S.W.2d 201, writ ref.; Foster v. Langston (Tex.Civ.App.), 170 S.W.2d 250.

Upon the question of harm, if indeed a showing of additional harm be necessary, we are of the opinion that harm has been demonstrated by reason of the fact that the jury awarded one of the Appellees, Mrs. Jo Frances Jones Chastain, the sum of $5,000.00. The evidence shows that at the time of her father’s death, she was 22 years of age, had been married for two years and had been living with her husband, who was a civil engineer. The only basis in the evidence upon which the . verdict awarding her damages for a pecuniary loss is to be found in the following question and answer:

Q Even after you were married, did he financially assist you and your husband ?
“A Occasionally he would, yes.”

Although we are keenly aware of the holding of the Supreme Court in Dennis v. Hulse, Tex., 362 S.W.2d 308, 309, holding that even though the record discloses that the question of insurance was improperly injected into the case, and even though such error was reasonably calculated to cause a miscarriage of justice, the party appealing must also show that it probably did cause the rendition of an improper judgment under rules 434 and 503, T.R.C.P., yet as we read the cases, the Supreme Court remains committed to the view that the Court will take judicial knowledge of the fact that a jury is more apt to render a judgment against a Defendant, and for a larger amount, if it knows that the Defendant is protected by insurance. Kuntz v. Spence (Tcx.Com.App.), 67 S.W.2d 254; Barring-ton v. Duncan, supra.

Without arguing the question of whether or not Mrs. Chastain was entitled to damages for pecuniary loss, it appears to us that based upon this meager evidence, the jury in awarding this amount of damages demonstrated generosity, rather than basing their verdict upon the evidence, and that more likely than not the question of insurance, at least to some extent, was responsible for this portion of the verdict.

It is, therefore, our opinion that the Trial Court should have sustained the Motion for Severance filed by Kirby Petroleum Company, and should have ordered these two causes of action to be separately docketed and tried. Rule 174(b), T.R.C.P. Because of this procedural error, we feel that we have no alternative other than reverse and remand the cause for another trial. In view of this ruling, we defer discussion of the remaining Points of Error.

Reversed and remanded.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    AMERICAN PETROFINA COMPANY OF TEXAS, Appellant, v. C. B. RAY, Appellee.
    No. 3912.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 9, 1964.
    Rehearing Denied Oct. 30, 1964.

      Scarborough, Black, Tarpley & Scarborough, J. R. Black, Jr., Abilene, for appellant.
    Wagstaff, Harwell, Alvis & Pope, Robert Alvis and John Alvis, Abilene, for appellee.
   GRISSOM, Chief Justice.

American Petrofina Company of Texas sued C. B. Ray for $26,587.29, which it alleged was the balance due on an open account for gasoline products it sold to Ray. It also sued for the unpaid balance alleged to be due for rent on service stations, painting and repairs. Ray filed a written denial, under oath, stating that the claim for petroleum products was not just or true, in whole or in part, in strict conformity with Texas Rules of Civil Procedure 185. Ray alleged that the balance claimed was based upon excessive prices and estimates of the reasonable worth of the products and that plaintiff had agreed to give him certain deductions or discounts, as a price support, in accordance with a schedule furnished him by the plaintiff which called for deductions of at least two cents per gallon more than allowed. Ray also filed a counterclaim for $31,518.31 for price support which had not.been deducted from his account. To plaintiff’s other claims Ray filed a general denial.

At the close of the evidence, the plaintiff filed a motion for summary judgment. It contended that Ray had admitted the correctness of the account and that his only objection thereto was that he had a counterclaim for additional price support. The motion was overruled. The court submitted issues to the jury which, with the answers thereto, are as follows:

“SPECIAL ISSUE NO. 1
“From a preponderance of the evidence, what do you find to be the amount of balance of account due by Defendant C. B. Ray to Plaintiff, American Petrofina Company of Texas, for the period of November 1, 1961 until June, 1962, for petroleum products taking into consideration price supports based on the charges for similar products sold by major oil companies and independent branded companies to retail stations ? Answer by stating amount in dollars and .cents.
"‘ANSWER: Zero_DOLLARS
“SPECIAL ISSUE NO. 2-
"‘From a preponderance of the evidence, what do you find to be the amount of balance, if any, which Defendant, C. B. Ray, owes the American IPetrofina Company on his rental contract for lease on the five (5) service •stations ? Answer in dollars and cents, If any.
•“ANSWER: $678,77 DOLLARS
“SPECIAL ISSUE NO. 3
“From a preponderance of the evidence, what do you find to be the amount, if any, which Defendant, C. B. Ray, owes American Petrofina Company on the five (S) painting agreements ? Answer in dollars and cents, if any.
•“ANSWER: $691,73 DOLLARS.
“SPECIAL 'ISSUE NO. 4
“Do you find from a preponderance •of the evidence that Ted Rogers, as Defendant’s zone supervisor, was authorized by American Petrofina Company to make agreements with C. B. Ray ■concerning said company’s price support program? Answer ‘Yes’ or ‘No.’
■“ANSWER: YES_
“If you have answered the foregoing Special Issue No. 4 ‘Yes’ and in that ■event only, you will answer the following Special Issue No. 5.
“SPECIAL ISSUE NO. 5
“Do you find from the preponderance •of the evidence that, for the period ■during which C. B. Ray purchased •petroleum products from American Pe-trofina, Ted Rogers, as zone supervisor for said company, told C. B. Ray that his company would support the lowest posted price for petroleum products in the Abilene area? Answer ‘Yes’ or ‘No’.
“ANSWER: YES__
“Now if you have answered the foregoing Special Issue No. 5 ‘Yes’, and in that event only, you will answer the following Special Issues Nos. S-a, 6, 7 and 8.
“SPECIAL ISSUE NO. 5-a
“Do you find from a preponderance of the evidence that Ted Rogers furnished C. B. Ray a price support formula to be used by American Petrofina Company in making charges for petroleum products to be sold by C. B. Ray? Answer ‘Yes’ or ‘No’.
“ANSWER: YES__
“SPECIAL ISSUE NO. 6
“Do you find from a preponderance of the evidence that C. B. Ray relied on the agreement of Ted Rogers, as such zone supervisor, that his company would support the lowest posted price for petroleum products in the Abilene area, in the retail prices at which he sold such products during such periods ? Answer ‘Yes’ or ‘No’.
“ANSWER: YES_
“SPECIAL ISSUE No. 7
“Do you find from a preponderance of the evidence that Ted Rogers, as such zone supervisor, knew or reasonably should have known that C. B. Ray was relying on his agreement to support the lowest posted price in the Abilene area, in setting the retail price for which he sold petroleum products? Answer ‘Yes’ or ‘No’.
“ANSWER: YES_
“SPECIAL ISSUE NO. 8
“From a preponderance of the evidence, what do you find to be the difference, if any, in the total amount of price support for petroleum products purchased during the period from August 1, 1961 until June 1962, computed on the formula based on the lowest posted price for similar products in the Abilene area, in the same quantities and on the same dates, respectively, and the total amount of price support credited C. B. Ray on the account by American Petrofina Company? Answer in dollars, if any.
“ANSWER: Zero DOLLARS”

Based upon the verdict, the court rendered judgment for the plaintiff for only $1,370.50. It has appealed.

In 1961, plaintiff and defendant entered into contracts whereby Ray was to become a distributor and jobber for the plaintiff and sell its petroleum products at retail outlets. Ray leased five filling stations from the plaintiff and they made a contract for painting and repairing certain stations. In 1962, said leases were cancelled and Ray quit as plaintiff’s jobber and distributor.

Appellant’s first four points are in substance that the court erred (1) in refusing to direct a verdict for the plaintiff for the amounts sued for; (2) in refusing to hold that under the undisputed evidence the plaintiff was entitled to recover the amounts sued for; (3) in overruling plaintiff’s motion for summary judgment and (4) its motion for judgment non obstante vere-dicto.

Under said points, plaintiff contends it was entitled to the full amount sued for, as a matter of law, and that there were no issues of fact. Said points are overruled. Questions of fact were raised. As stated, defendant filed a written denial, under oath, stating that the account was not just or true, in whole or in part. It thereby placed upon plaintiff the burden of proving that it was entitled to recover each item of the account sued upon and the correct balance owed on the account. Plaintiff did not establish such facts as a matter of law and the amount due, if any, after allowance of the proper price support, was for the jury. We cannot agree with plaintiff’s contention that, despite the record mentioned, plaintiff was entitled as a matter of law to the amount sued for and, if any question was raised, it was only relative to the amount of additional price support to which defendant was entitled by way of cross action. The question of the amount of price support to which defendant was entitled was pertinent to the question of the correct balance due on the account. That question was inseparable from the question of the balance owed by Ray on the account.

No issues were submitted or requested by the plaintiff relative to the elements of either an open or stated account. In substance, the jury was asked what it found to be the correct balance due, taking into consideration the agreed price support based, in effect, upon plaintiff’s theory of the price support agreement. In answer to that question, the jury found that the defendant owed no balance on the account. Plaintiff did not show as a matter of law that it was entitled to judgment for the amounts sued for.

Plaintiff’s 5th point is that the court erred in overruling its objections to the charge. Its 7th point is that the court erred in overruling its objections to issue 1 and its request that the court instruct the jury that it could not consider defendant’s claim for additional price support based upon the prices at which petroleum products were sold by independent companies. (Plaintiff contended the agreed price support was based upon local prices of two majors, two independents, or one of each. Defendant contended that it was based on the lowest price posted in the area.) Its 8th point is that the court erred in overruling its objections to issue 8, which asserted that it was a double submission of Ray’s theory and, in connection with issue 1, permitted Ray to obtain, a double recovery of price support.

In connection with these three points plaintiff again says that it was entitled; as a matter of law, to recover the full ¿mounts sued for. We see nothing in the manner of submission that was probably injurious to the plaintiff. Defendant did not obtain a double recovery of price support. ' The price support theory of the plaintiff was that it was to be keyed to prices currently charged by two major companies, two independent companies, or a major and an independent company. Ray testified that plaintiff agreed to support the lowest posted price. His testimony was supported by that of other witnesses. Ray did maintain the lowest posted prices. There was at least two cents per gallon difference between the lowest posted price and the price upon which defendant allowed him credit. Issue number 1, which permitted the jury to consider the prices charged by major and independent companies, is not materially different from plaintiff’s contention that price support was to be based upon the prices then being charged by two majors, two independents, or a major and an independent. Issue 8 inquired the difference between the price support based on Ray’s theory and the price support allowed by the plaintiff. As to the amount credited to Ray by the plaintiff there was no dispute. The credit memoranda introduced established that amount. Thus, even if it constituted a second submission of price support, one, in effect, on plaintiff’s theory and one on defendant’s theory, it did not submit more than one disputed fact. It was not reasonably calculated to cause and did not probably cause rendition of an improper ..judgment. Defendant did not obtain any additional advantage from the answer to issue 8. There was ample evidence of the amount of price support to which Ray was entitled based on his testimony as to the agreement, and the difference between that amount and the amount credited by plaintiff. The plaintiff simply denied Ray’s testimony that it agreed to support the lowest posted price and that was the main fact in dispute.

We think the court did not commit reversible error in refusing to submit plaintiff’s requested issue 8, which inquired generally the amount defendant owed it, when, under the defendant’s denial the plaintiff had the burden of establishing the reasonable value of the products sold and the balance due on the account. The requested issue was not in correct form. R. C.P. 279. The burden is on appellant to show that, when the entire record is considered, the submission was probably harmful to it. R.C.P. 434; 4 Tex.Jur.2d 616. We think it has not overcome that burden.

We have carefully considered all of appellant’s points. We conclude that reversible error is not shown. The judgment is affirmed.


author: COLEMAN, Justice.

text:
    Lester MUSTERMAN et al., Appellants, v. ACME ENGINE REBUILDING CO., Appellee.
    No. 14407.
    Court of Civil Appeals of Texas. Houston.
    Oct. 22, 1964.

      Collins & Moore, Houston, Gene E. Putnam, Houston, of counsel, for appellants.
    Robert A. Scardino, Vincent J. Musachia, Houston, for appellee.
   COLEMAN, Justice.

This is a suit for debt based on a written contract and chattel mortgage with an alternate plea of an oral contract and chattel mortgage. The defendant and the surety on his replevy bond appeal.

The defendant denied under oath the ■execution of the note and chattel mortgage on which suit was brought. In response to the issues submitted, the jury found that Acme and Musterman entered into the written agreement as alleged on or about February 17, 1961 and also that they entered into an identical oral agreement on or about February 17, 1961. The jury found that the parties entered into a written agreement constituting a chattel mortgage on a particular vehicle and also found that they entered into an oral agreement constituting a chattel mortgage on the same vehicle.

No statement of facts has been filed in this Court. While we do not know the facts in this case, parties commonly enter into oral agreements, which are later reduced to writing. In any event, we cannot say that the findings are in irreconcilable conflict under the doctrine of Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985.

During the pendency of this cause plaintiff filed an affidavit for sequestration in which he alleged that this was a suit for the foreclosure of a chattel mortgage and that he was suing for the title and possession of a particularly described motor vehicle. The writ of sequestration appears in the transcript, which also contains a copy of the sequestration bond and of the replevy bond filed by the defendant which appellant, Maryland Casualty Company, executed as surety. While plaintiff’s petition alleged the existence of the chattel mortgage as security for the debt, there was no specific prayer for foreclosure of the chattel mortgage, nor for title and possession of the motor vehicle. There was the usual prayer for general relief.

The judgment entered by the trial court decreed that the plaintiff “have and recover from the defendant, Lester Muster-man, the sum of $401.50, together with interest thereon and that said judgment be had out of the proceeds of the bond posted on behalf of the defendant, Lester Muster-man, to secure said payment.” Nowhere does the judgment expressly find the value of the property nor was there a special issue submitted to the jury on this question.

Rule 704, Texas Rules of Civil Procedure, provides:

“The bond provided for in the three preceding rules shall be returned with the writ to the court from whence the writ issued. In case the suit is decided against the defendant, final judgment shall be entered against all the obligors in such bond, jointly and severally, for the value of the property replevied as of the date of the execution of the replevy bond, and the value of the fruits, hire, revenue, or rent thereof, as the case may be.”

The judgment is obviously erroneous in that the rule requires a judgment against all obligors in the bond, jointly and severally, for the value of the property replevied as of the date of the execution of the bond. Here the judgment was against the defendant alone, a matter of which appellants have not complained. However, the direction that the judgment be had out of the proceeds of the bond is the subject of complaint, and is error. The trial court also erred in failing to find specifically the value of the property at the date of the execution of the replevy bond. While it may well be that the value of the property on that date exceeded the amount of the judgment, the property involved is a motor vehicle and may depreciate in value by reason of improper use after that date. A failure to find the value of the property, under the statute superseded by the rule quoted, has been held reversible error. Johnson v. Whitaker, Tex.Civ.App., 60 S.W.2d 848; Burgess v. Valley Finance Corporation, Tex.Civ.App., 33 S.W.2d 807; Reeves v. Avina, Tex.Civ.App., 201 S.W. 729.

It was also error to render judgment against the surety on the replevy bond in the absence of a judgment foreclosing the lien of the chattel mortgage. Rule 70S, T.R.C.P., provides, in part, that

“ * * * Where a mortgage or other lien of any kind is foreclosed upon personal property sequestered and replevied, the defendant shall deliver such property to the officer calling for same under order of sale issued upon a judgment foreclosing such mortgage or other lien, either in the county of defendant’s residence or in the county where sequestered, as demanded by such officer; provided, however, that such delivery by the defendant shall be without prejudice to any rights of the plaintiff under the replevy bond given by the defendant.”

No opportunity to deliver the property “to the officer calling for same under order of sale” could have been afforded under the judgment entered herein.

While a judgment for the amount due under the contract was rendered against the defendant, since the judgment did not provide for a foreclosure of the mortgage lien it is evident that the “suit” was not decided against the defendant in the sense the word is used in Rule 704, T.R.C.P. The suit contemplated is that described in Subdivision 3 of Article 6840, Vernon’s Ann. Civ. St.Tex., reading:

“Judges and clerks of the district and county courts, and justices of the peace shall, at the commencement or during the progress of any civil suit, before final judgment, have power to issue writs' of sequestration, returnable to their respective courts, in the following cases:
“3. When a person sues for the foreclosure of a mortgage or the enforcement of a lien upon personal property of any description, and makes oath that he fears the defendant or person in possession thereof will injure, ill-treat, waste or destroy, or remove the same out of the county during the pendency of the suit.”

The difficulties to be encountered in preparing, and the provisions which properly should be included m, a judgment in such a cause as this are discussed in American Mortgage Corporation v. Samuell, 130 Tex. 107, 108 S.W.2d 193. The judgment entered herein does not meet the standards suggested and must be reversed. The cause will be remanded for a new trial.

Reversed and remanded.


author: WILLIAMS, Justice.

text:
    PITTSBURGH PLATE GLASS COMPANY, Appellant, v. Fred BRAGG, Appellee.
    No. 16420.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 30, 1964.
    Rehearing Denied Nov. 13, 1964.
    Bailey & Williams, Dallas, for appellant.
    J. Alex Blakeley and Rae Ann Fichtner, Dallas, for appellee.
   WILLIAMS, Justice.

Venue action. Fred Bragg, a resident of Dallas County, brought this damage suit in the District Court of Kaufman County, Texas against Pittsburgh Plate Glass Company, a corporation, a resident of Dallas County, and its employee, Q. B. Lucky, a resident of Kaufman County. Lucky entered his appearance by answer. Pittsburgh Plate Glass Company filed its plea of privilege asserting its right to be sued in Dallas County. Bragg filed a controverting plea wherein he asserted that venue was proper in Kaufman County by virtue of Subdivisions 29a and 4 of Article 1995, Vernon’s Ann.Civil St. Following a non-jury hearing the trial court overruled the plea of privilege.

Appellee concedes that Subdivision 29a, Article 1995, V.A.C.S. is not applicable under the facts of this case to hold venue in Kaufman County and appellant’s first point is sustained. However, appellee seeks to uphold the judgment of the trial court solely on the basis of Subdivision 4, Article 1995, V.A.C.S. Appellant, in its second and third points, contends that there is no evidence, or the evidence is insufficient, to bring the case within the exception relied upon by appellee. These points require a careful examination of the record as a whole.

Appellant admitted that Lucky was a resident of Kaufman County on May 2, 1962; that on said date he was an employee of Pittsburgh Plate Glass Company; that an accident occurred on May 2, 1962 when a truck belonging to Pittsburgh, and driven by Lucky within the course and scope of his employment for such company, collided with an automobile operated by Bragg; that at the time of said collision Lucky was on a mission for Pittsburgh. Bragg testified that on May 2, 1962 he was driving his automobile to work, traveling North on Hampton Road in Dallas, Texas; that the weather was clear and dry; that his automobile was stopped about fifty to seventy-five feet north of the intersection of Hampton Road and Singleton Boulevard when he was struck from the rear by a truck driven by Lucky. He testified that immediately after the collision the truck driver got out of his truck and told him that he (Lucky) was “in the fault”. The force of the impact caused Bragg’s automobile to go forward and strike the vehicle which had been stopped in 'front of Bragg. Bragg testified that the automobile in front of him had been stopped waiting to turn to the left and that was the reason his automobile had been at a standstill for approximately a minute prior to the time Lucky struck him from the rear. Bragg again reiterated that Lucky informed him immediately after the accident that the collision was his (Lucky’s) fault. Bragg also testified concerning his injuries and damages. Appellant tendered no evidence or made any objection to the admissibility of any of the above evidence introduced by appellee.

It is a now familiar rule of law that in order to maintain venue under Subdivision 4, Article 1995, V.A.C.S., where there are resident and non-resident defendants, it is not encumbent upon the plaintiff to prove the cause of action against the nonresident defendant, and he establishes his right to maintain venue where laid by (a) alleging a joint cause of action against the defendants, or a cause of action against a resident defendant so intimately connected with the cause of action alleged against the non-resident defendant that the two may be joined under the rule intended to avoid multiplicity of suits; (b) proving that the resident defendant in fact resides in such county; and (c) proving that the plaintiff has a cause of action against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758; Kines v. Hendrickson, Tex. Civ.App., 153 S.W.2d 645; and Kirksey v. Warren, Tex.Civ.App., 348 S.W.2d 33.

Appellant concedes that appellee’s pleadings are sufficient to constitute a proper joinder of action against all defendants and therefore the sole question is whether appellee sustained his burden of establishing a prima facie cause of action against the resident defendant, Lucky. It is our opinion that appellee did fulfill this burden. It is to be observed that no findings of fact and conclusions of law were filed, and none were requested. Accordingly, the judgment implies all necessary fact findings in support of the judgment and in seeking to determine whether there is any evidence to support same, and the implied findings of fact incident thereto, it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614, 5 A.L.R.2d 963; Lamb v. Ed Maher, Inc., Tex.Civ.App., 368 S.W.2d 255; Texas Sanitation Co. v. Marek, Tex.Civ.App., 381 S.W.2d 710.

Appellant earnestly contends that the record presents nothing more than the naked fact that an accident occurred which, in itself, is not evidence of negligence and proximate cause. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195; Bart, De Latt & Associates, Inc. v. Knight, Tex. Civ.App., 369 S.W.2d 65. We cannot agree. The evidence both direct and circumstantial goes further than to merely establish the happening of an accident. The appellee testified to facts, related above, which would certainly justify the trial court, sitting as a trier of fact, to believe appellee’s allegations that appellant’s employee failed to keep a proper lookout, failed to apply his brakes, failed to turn his vehicle to the right to avoid the collision, and was following too close behind another vehicle. Appellant also chooses to completely ignore the undisputed testimony of Lucky wherein he admitted that the collision was his fault.

We have also reviewed the testimony in the light of the rule announced by the Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, and find that the testimony is sufficient to support the implied findings of the trial court in support of the judgment.

Appellant’s points two and three are overruled and the judgment of the trial court is affirmed.

Affirmed.


author: PHILLIPS, Justice.

text:
    Herbert MEYER, Appellant, v. HARDWARE MUTUAL CASUALTY COMPANY, Appellee.
    No. 11235.
    Court of Civil Appeals of Texas. Austin.
    Oct. 28, 1964.

      Arthur Mitchell, Austin, for appellant.
    Brown, Sparks & Erwin, Austin, for ap-pellee.
   PHILLIPS, Justice.

Appellant Meyer, the plaintiff in the court below is a dealer in used cars. He brought his suit on an insurance policy and, in the alternative, against Everett Gerald Jones for damages in connection with the wreck of an automobile that Jones had purchased from him. The insurance policy in question had been underwritten by Hardware Mutual Casualty Company, the appellee in this case. From a judgment adverse to both Meyer and Jones, both appealed to this Court.

Jones, apparently interested in acquiring a Ford Thunderbird from Meyer, entered into an agreement with him to purchase the Thunderbird for $1995.00. Jones’ 1959 Ford plus a cash payment of $150.00 was the consideration for the transaction.

Jones delivered possession of his 1959 Ford to Meyer, paid him $110.00 in cash, delivered the title to the 1959 vehicle to him and received possession of the Thunderbird. He drove the car for several weeks, then wrecked it.

Before the wreck, Meyer learned that Jones owed more on the car than the parties had thought and the evidence is that Jones agreed to make up the difference. This difference, however, was not paid.

After the wreck, Meyer took possession of the car, repaired it and later sold it to another party. Jones requested that Meyer pay him the proceeds from the sale, however, Meyer refused.

There was evidence before the court that Meyer had shown a representative of the insurance company a written contract of sale for the Thunderbird allegedly signed by Jones in addition to evidence that Meyer stated to this same representative that he would not let a Thunderbird out of his place of business without a contract.

Several instruments detailed “Retail Order Blanks” describing the Thunderbird and signed by Jones were introduced into evidence, however, Meyer testified that he never accepted these retail order blanks.

In a trial amendment to his First Supplemental Petition, Meyer alleged that “on or about the 19th day of June, 1962, the defendant, Everett Gerald Jones, contracted with plaintiff to purchase a 1958 Ford Thunderbird automobile made the basis of plaintiff’s original petition against the defendant, Hardware Mutual Casualty Co.,” and that Jones wholly breached said contract to plaintiff’s damages in the amount of $1,327.-91.

The case was tried before the court without a jury, after which the court entered a take nothing judgment for Hardware Mutual Casualty Company and a judgment against Everett Gerald Jones for $1327.91.

We affirm the judgment of the trial court.

The insurance policy on which this suit was brought covered Meyer’s cars “consigned to or owned by the insured and held for sale * * * exclusive of automobiles sold by the insured under bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance * *

Meyer is before this Court on three points of error: (1) that the trial court erred in denying him recovery against the insurance company in that the automobile was owned by him and held for sale in his business, within the property covered by the above-mentioned policy; (2) that the trial court erred in holding that the Thunderbird was not covered by the policy because of the above quoted exclusion provision; (3) that the trial court erred in holding that appellant was precluded from recovery under the insurance policy for failure to file proof of loss with the company within ninety-one days as required by the policy.

We will discuss assignments of error one and two together and inasmuch as we hold that the transaction between Meyer and Jones consisted of a conditional sale and purchase agreement, it is unnecessary for us to discuss Meyer’s third assignment.

A conditional sale is one which is to become complete or to take effect on the happening of an event or in the performance of a condition. This includes a sale wherein possession of the property is delivered to the buyer but title is reserved in the seller until the fulfillment of a condition. Alamo Casualty Co. v. William Reeves and Co., Tex.Civ.App., 258 S.W.2d 211; 50 Tex.Jur.2d 382, Sec. 109.

In Phillips v. Providence Washington Insurance Company, Tex.Civ.App., 298 S.W. 2d 181, the court held that a transaction similar to the one before this Court was a conditional sale and that inasmuch as conditional sales were excluded from the insurance contract sued upon, the dealer could not recover.

Rush v. Smitherman, Tex.Civ.App., 294 S.W.2d 873, writ refused, holds that a contract to buy an automobile from one accepting part payment of the purchase price and delivering possession to the buyer was a contract to sell even though seller did not deliver the title certificate to the buyer. There was no written agreement between the parties in this case.

Appellant relies upon an opinion of the Court of Civil Appeals in Willingham v. Fidelity & Casualty Company, 288 S.W. 2d 884, where the dealer was allowed a recovery against the insurance company. Here the car was destroyed while in the possession of a prospective purchaser. The provisions of the policy were similar to those before us with the exception that “purchase agreements” were not excluded from coverage. The case was submitted to a jury that found the dealer “owned” the automobile and was “holding the same for sale” at the time of the loss. The prospective purchaser had made it clear to the dealer that he might not be able to finance the car and that if he could not, he would return the car and claim the cash deposit he had made thereon. The court allowed the dealer to recover on the policy of insurance stating that, under the facts and the jury finding, title had not passed to the prospective purchaser inasmuch as the parties intended that payment should be made before title passed. The court did not discuss the possibility that a conditional sale might have been effected. We believe that this case is distinguishable from the Phillips case on the facts; however, if not, we follow the decision in Phillips.

The judgment of the trial court is affirmed.

Affirmed.


author: MASSEY, Chief Justice.

text:
    Venice E. HART, Appellant, v. I. L. VAN ZANDT, Appellee.
    No. 16566.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 16, 1964.
    Rehearing Denied Nov. 13, 1964.

      Geary, Brice & Lewis and W. S. Barron, Jr., Dallas, for appellant.
    Cantey, Hanger, Gooch, Cravens & Scarborough and William B. David, Fort Worth, for appellee.
   MASSEY, Chief Justice.

This is a malpractice suit.

At the conclusion of the evidence offered by plaintiff Venice E. Hart, the trial court directed the return of a verdict in behalf of the defendant surgeon, I. L. Van Zandt, M.D., an orthopedic surgeon. Judgment was in accord and the plaintiff appealed.

We affirm.

The lumbar spine is the section above the sacral spine. The lumbar spine is comprised of five bony processes or spinal column sections, the fifth being that located immediately above the first of the sacral processes. The term LSS1 denotes the interspace between the fifth lumbar process and the first sacral process. The term L4L5 denotes the interspace between the fourth and fifth lumbar processes. At each of these interspaces in the normal human body there is a disc which acts as a cushion for the adjacent processes. Immediately to the rear (toward the hack) of the bony processes, which are protected one from the other by the discs, there is the canal through which nerves pass. These are enclosed in a protective sac extending from the brain. The term “ruptured disc” denotes a breaking of the outer covering of the disc. When such occurs an opening is afforded through, which the softer somewhat flexible body material which should be contained within the disc is allowed to escape. The inner substance is called nucleus pulposus. If the material so extruded should press against the nerve sac and cause pressure or stress against the nerves therein contained, pain, sensory loss, .and/or loss of motor function in the skin and muscular tissues often results. Under •the diagnosis made by the surgeon in the instant case that character of extrusion was the cause of the trouble of which the plaintiff complained. To alleviate such pressure or stress an operation was undertaken.

Following tests, X-rays, etc. performed pursuant to diagnostic procedures not under .attack the defendant surgeon embarked upon an operation upon the plaintiff’s back with the pre-operative diagnosis of “prob.able ruptured disc L5S1, probable lumbar-sacral instability”. In other words he began operative procedure with the expectation that he would find extruded disc material (nucleus pulposus) pressing against the nerve sac and the nerves therein enclosed, and/or directly upon the nerves as they pass out of the sac and through a spinous opening into the lower extremities. Surgical procedure was begun by the surgeon making an incision which enabled him to open the plaintiff’s body and explore the condition existent at the L4L5 level, i. e., that next above the L5S1 level. The plaintiff founds portions of his contentions of negligence in the fact that the surgeon made a “transverse” (cut-across) incision rather than a “lateral” (up and down) incision, in that his deduction therefrom is that the surgeon could not have used the opening made to perform a surgical operation upon the disc at L5S1. We have concluded that this fact may be disregarded.

At L4L5 the surgeon found a ruptured disc, extruded material from which was pressing against the nerve sac at an adjacent point. He concluded that the condition so found could and did account for the symptoms of plaintiff’s complaint. He endeavored to repair the condition, and, in the state of the record, we are bound to conclude that he did do an efficient surgical job thereat. There is no evidence that he did not. He also endeavored to perform a “fusion” of the L4 and LS spinous processes, objective of which was to cause them to become a single rigid bony part, with the space where the disc should be (or had been) maintained by the insertion of bone particles supposed to merge into and become elements of the single rigid bony part. He then closed the operation, refraining from exploring to determine the condition of the disc at L5S1. Thereafter the resort was to conservative hospital treatment. Later treatment attempted was likewise conservative — at least as applied to the spine itself— until the plaintiff ceased to be the patient of the surgeon.

During the course of the introduction of plaintiff’s opening evidence he had the surgeon take the stand as an adverse witness. The attorney interrogated the surgeon upon procedure during the course of the operation. Pursuant to a question asked he directed the doctor’s attention to the excision or removal of the disc substance, nucleus pulposus, undertaken at L4L5. The surgeon’s answer was: “I estimated that approximately 90 percent of his disc substance had been extruded. I removed that. I described that in detail. It was a very long arduous procedure that required approximately four hours, and I thought at the end of that time that I had removed enough material and that I had given him the relief for which he had come to me.” (Emphasis supplied.)

That part of the surgeon’s answer to which we have supplied emphasis was not responsive to the question asked, but there was no complaint thereof and no motion to strike. We believe, therefore, that the evidence was properly in the record as a part of the plaintiff’s case. In other words the record showed that the surgeon had truly formed the opinion and believed, at and prior to the conclusion of his operative procedure at L4L5, that he had discovered and corrected the condition of defect which was causing the symptoms of which the plaintiff complained, and that there was no other condition of defect remaining which required exploration or operation. There was no evidence that the action, or cessation from further operative procedure, was not the result of the surgeon’s exercise of judgment.

Some five months after this operation discovery was made of the existence of a ruptured disc at L5S1 with extrusion of disc material causing pressure against the nerve sac at that level of the spine'. The plaintiff contends that the fact issue was therefore raised as to whether such pressure existed, causing his complaints or some of them, at the time of the prior operation at the L4L5 level.

That the surgeon had the opinion that there was a condition requiring his attention at L5S1 when he began the original operation became immaterial, even though plaintiff be deemed correct in his contention that it later became apparent, at the time a second operation was performed about S months later, that he had been correct in his original opinion (that there was a condition which should have been operated at L5S1), — and was in error in his conclusion (because of his findings at L4LS) that his original opinion was incorrect.

There having been no evidence that the surgeon was negligent in arriving at the new conclusion by reason of his findings at L4L5, no evidence that he had not actually made such new conclusion, and no evidence that it was not bona fide, no issue upon the matter of negligence was ever raised. The period under consideration was to and inclusive of the time the operation was concluded. Under the evidence there was no proof that the surgeon had done anything other than rightfully act in the exercise of judgment requisite in the circumstances, by reason of which he was entitled to cease operative and exploratory activity. No blame would attach, or cause of action accrue, because of action taken or because he refrained from further action. 45 Tex. Jur.2d, p. 282 “Physicians and Other Healers”, § 117 “(Standards of Skill and Care) — In general”; 41 Amer.Jur., p. 217, et seq., “Physicians and Surgeons”, § 103 “Professional Judgment Not Guaranteed”, and § 104 “Cure Not Guaranteed.”

Remaining, and as matter which has caused us great concern, is the question of whether an issue of fact was raised as to the surgeon’s negligence amounting to proximate cause of plaintiff’s injuries in failing to undertake proper postoperative treatment. We have concluded that the best manner of resolving the problem would be-to treat the acts and omissions of which complaint is made as having amounted to-negligence (although without making any holding of negligence) and applying ourselves to the question of whether they were shown to have amounted to a proximate cause of plaintiff’s injuries and damages.

We conclude, and it is our holding, that there was no proof that the alleged negligence amounted to proximate cause.

Bowles v. Bourdon, 148 Tex. 1, 219' S.W.2d 779, 13 A.L.R.2d 1 (1949) is a leading case. Following it on page 11 of A.L.R.2d is the annotation, “Proximate-cause in malpractice cases”. In connection therewith we have studied 115 A.L.R. 298,. Annotation: “Liability as for malpractice as affected by failure to- take or advise the-talcing of an X-ray picture after operation, or to resort to other means of determining-advisability of a supplementary operation or-special treatment.” With certain authorities • cited it is stated in Bowles v. Bourdon: “It is definitely settled with us that a patient has-no cause of action against his doctor for-malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries.” Citing Wigmore on Evidence, Vol. VII, p. 453, § 2090, the author of the opinion apparently recognizes as the “main negligence issue” in cases for malpractice against a physician or surgeon the question of whether the attendant doctor had used “suitable professional skill”, with the question of proximate cause likewise existent and nec■essary to be established by evidence as the •cause of patient’s injuries in those instances where want of the exercise of “suitable professional skill” has been shown. The author •of the opinion then proceeds to treat the negligence alleged as having been raised as .an issue of fact and settles the case disposition by holding that the issue of proximate cause was not likewise raised. Con■cluding, he states: “All it (the evidence) •shows is that what respondent did was not a probable but only a possible cause of the ■contracture; that it was only one of several things that could have caused the injuries •complained of. Therefore, this cause is ruled by the language of Circuit Judge Taft, in Ewing et al. v. Goode (78 F. 442, 444), •supra, ‘when the burden of proof is on the plaintiff to show that the injury was negli•gently caused by defendant, it is not enough to show the injury, together with the expert opinion that it might have occurred from negligence and many other causes. Such evidence has no tendency to show that negligence did cause the injury.’

“And if the plaintiff would rest upon inferences rather than upon direct evidence, 'he meets the same rule. ‘The proof must •establish causal connection beyond the point •of conjecture. It must show more than a possibility. Verdicts must rest upon reasonable certainty of proof. Where the proof discloses that a given result may have occurred by reason of more than one proximate cause, and the jury can do no more than guess or speculate as to which was, in fact, the efficient cause, the submission of such choice to the jury has been consistently condemned by this court and by other courts.’ ”

Reverting to the state of the whole record in the case, we find circumstances in connection with the treatment (which for the sake of our method of handling we assume to have constituted negligence) which perhaps shows that the condition of injury following the operation might have occurred from omissions to resort to treatment and/or supplementary surgery by the defendant surgeon; — which perhaps shows that the plaintiff’s ultimate condition of injury resulted from negligence on the surgeon’s part. The most such evidence showed the jury, however, was that such alleged and presumed negligence was a possible cause of the trouble plaintiff experienced following his operation. Causal connection was not established beyond the point of conjecture. Had the case, been submitted the jury could have done no more than to guess or speculate as to whether the acts and omissions of the surgeon, singly or collectively, following the time of the operation, was or were the efficient cause(s) of the worsened condition in which plaintiff alleged himself to have been.

In this connection we first consider plaintiff’s condition prior to surgery. Immediately prior to the time the surgeon applied the tests to which he resorted in the process of arriving at a diagnosis the plaintiff claimed to have been experiencing pain, inconvenience and disability, as follows: In 1959 for several months prior to the visit to the defendant surgeon plaintiff had been having trouble in his lower back and his left leg. About September 16, 1959, he alighted from an automobile and then reached back inside it for something and in so doing made a “sort of a twisting motion” and a sharp piercing pain was experienced in his bade. This pain was in the lower back, “just above the tailbone”. He went to the surgeon on the same day. At the time he saw the surgeon he was having difficulty in the lower back and left hip and leg. The surgeon put him in the hospital, in traction. He was in the hospital about a week. The treatment relieved the intense pain, but some traces of it remained. He continued under the surgeon’s treatment after leaving the hospital. He continued to have pain in the left leg, and the top part of his left foot was numb. Also there was a “spot” on the front of the left leg which was numb. During the period of conservative treatment after leaving the hospital the only sensory loss was that to the top part of the left foot, and there was no pain in any portion of the body other than those in which it had been previously experienced. The surgeon expressed his opinion that plaintiff had a “fractured” disc which should be removed.

Pursuant to arrangements between doctor and patient the plaintiff was again hospitalized on October 11, 1959. The next day a myelogram was attempted. The process by which this was done was “terribly painful”. The day following an additional at-: tempt to perform a myelogram was undertaken. A discogram was also performed. Later, on the same day, the surgeon performed a radical operation during the course of which he operated at the L4L5 level of the spine.

Immediately following the operation it became apparent to the plaintiff that he was unable to void. His bladder was filling up, and to empty it a catheter had to be used. Within a few days it became apparent that he could not void his bowels. Both conditions resulted in pain and discomfort. The plaintiff “wore that catheter until around the first of February 1960”. Plaintiff had terrible pain in both his legs for a few days, but this intense pain subsided. The plaintiff had loss of sensation, increased in the sites where such loss had previously been experienced, and also in new portions of the body and extremities. The left foot was “still paralyzed” on top and seemed to be much weaker. There was no strength in the large toe of that foot. The numb spot on the left leg was still present. In addition the right side of his penis was numb, his right testicle was numb, and “a streak along the right side of the rectum was completely numb, paralyzed. All in the crotch area, on the right side” extending back to the tailbone. The plaintiff remained in the hospital about four weeks. During this period there was no improvement of the bowel and bladder condition. There was no change in the losses of sensation. The pain in the legs was reduced so that by two weeks after the operation it was practically gone.

After dismissal from the hospital the plaintiff continued to see the surgeon in his office. The surgeon never recommended additional hospitalization, surgery, myelo-grams, or X-ray studies. He told the plaintiff that his condition would clear up and there was nothing to worry about — it would take a little time. He first said it would be a week or two, then that it would be maybe a month or two, and finally told him that it might be a matter of several months. The plaintiff asked the surgeon “if there was any possibility of going back in there and seeing what was wrong, correct something, see if there was something could be done.”' The surgeon advised that there was no reason to do so, there was nothing wrong, and that with time the difficulty would clear up.

During the period of his treatment by the surgeon following the operation the plaintiff was referred to another doctor for attention to clear up the bladder trouble, and this doctor put plaintiff in the hospital and performed a prostate operation as part of his treatment. Plaintiff testified that this was of no aid or benefit to him. Further, the surgeon referred plaintiff to a Dr. McKinney for an examination. This was in December of 1959. Dr. McKinney told the plaintiff that he would be all right in the matter of a little time.

On December 15, 1959, Dr; McKinney wrote a report in connection with his examination of plaintiff, a copy of which went

to the defendant surgeon. From and after the time of receipt of such copy the defend- £ nt surgeon was “on notice” of its contents. It was apparent therefrom that Dr. McKinney was “laboring under the impression” that the operation performed had been at the lumbosacral joint with removal of the 5th lumbar disc. In other words the report showed that Dr. McKinney thought that the ■operation had been at L5S1 rather than at L4L5, and that there had been an interbody fusion at L5S1. It was in connection with recommendations Dr. McKinney made that plaintiff had another doctor operate on his prostate in an attempt to correct his bladder ■dysfunction. Dr. McKinney’s report noted the anesthesia over the right side of plaintiff’s perineum, scrotum, and penis, and that these areas are supplied by the 3rd, 4th and 5th sacral nerves. From other evidence in the record it is apparent that these nerves ordinarily pass out of the interspace at the D5S1 spinal level, although in some instances they pass out of the interspace at the L4L5 level. In any event they are present, enclosed by the nerve sac within the spinal column, at the L4L5 level even when they emerge therefrom at the L5S1 level.

In May of 1960 the plaintiff went to a Dr. Rehfeldt, M.D., a specialist in neurological surgery. As heretofore mentioned the defendant surgeon was a specialist in orthopedics. The school of education, training and practice of the two specialties differ in certain respects although similar in most. One difference is that advocates of one school believe that “spinal fusion” done in connection with a disc operation is not procedure which is in the best interest of the patient. Advocates of the other believe the contrary. Specialists of both schools ordinarily perform operations to remove discs, or to correct malfunctions resulting from ruptured discs.

After performing tests Dr. Rehfeldt diagnosed L5S1 as the portion of the spine where pressure from a ruptured disc was causing plaintiff’s trouble. He performed an operation by which extruded disc material from the L5S1 disc was removed. He testified that as a result pressure upon the nerves in plaintiff’s spinal column ceased. Incident to this second operation additional or newly formed disc material at the L4LS level was also removed. There was no evidence that the additional or newly formed disc material at L4LS played any part in plaintiff’s complaints or condition and the fact thereof may be disregarded. Following the operation by Dr. Rehfeldt the plaintiff was in the hospital about one week, after which he went home. After two or three weeks at home he returned to some of his duties of employment. Following the operation by Dr. Rehfeldt the plaintiff obtained no relief in so far as his bowel and bladder troubles were concerned. Neither was he relieved of his numbness, i. e., sensory loss. There was relief from pain. Prior to the operation the plaintiff had experienced pain in his legs sometimes, which he stated was alleviated following the operation.

The evidence adduced from Dr. Rehfeldt was silent upon the matter of whether he found that the 3rd, 4th, and 5th sacral nerves, or any of them, to have come out of the spine at L5S1. The record is silent upon the matter of whether any nerve was within the sac in plaintiff’s spine at that level, although the presence thereat of the nerve sac was shown.

Plaintiff was of the opinion that there was a pressure on the sacral nerves at L5S1, which pressure had been increased by the defendant surgeon’s operative procedures. He believed that the surgeon should not have increased the pressure at L5S1, or, that having done so, the surgeon should have explored and discovered the condition existent at L5S1, which he should have corrected at the time he operated at L4L5. Further, plaintiff was of the opinion that whether or not there was such additional pressure caused by the operation, the failure to diagnose plaintiff’s condition so as to occasion prompt supplemental remedial surgery to correct the condition existent at L5S1 permitted the condition to persist for so long a period of time that permanent injury resulted, — since if the remedial surgery had been earlier undertaken the condition would have been alleviated, nerve atrophy avoided, and a complete cure effected. Alternatively, his opinion was that a partial cure could have been effected and plaintiff’s condition improved rather than worsened. The proof adduced, as directed to the subject of our discussion, was produced in an attempt to support this theory, or these alternative theories, as establishing a prima facie case of liability.

As heretofore indicated causal connection was not established beyond the point of conjecture.

In connection with such holding, we follow the decision of Bowles v. Bour-don, supra, i.e., that in a malpractice case the plaintiff patient has not established a cause of action unless he proves by a doctor of the same school of practice as the defendant physician that the negligence of which he complains was a proximate cause of his injuries. Plaintiff offered no evidence thereof by an orthopedic physician or surgeon who was an M.D. In any event, however, proximate cause was not proven by any other expert witness, without consideration given to qualification.

The plaintiff founds a point of error upon the action of the trial court in excluding the whole of the deposition of Dr. Michael Scott, M.D., Chairman and Professor of the Department of Neurosurgery in Temple University Medical Center, Philadelphia, Pennsylvania. He had examined the plaintiff on December 7, 1960. For purposes of his bill of exceptions the plaintiff obtained the trial court’s ruling that the surgeon’s objections were substained to each question and answer, severally considered. The material answers plaintiff insists should have been admitted in evidence amount to a statement by the medical witness that in his opinion there was involvement of the plaintiff’s nerve roots, with resulting impairment of sensation and in the function of the bladder; that such resulting impairment was secondary to prior involvement of the nerve roots and was an impairment which occurred during or immediately following the operation performed by the defendant surgeon. The medical' witness stated that the reasons for such, conclusion was that the plaintiff did not have these symptoms or complaints before the operation, but did have them immediately following.

Had the witness’ testimony been admitted,, yet do we believe that plaintiff would not have discharged the burden of proving a prima facie case. The evidence is no more-than an expression of an opinion as to the' time of some event which the witness concluded was the proximate cause of a resulting condition. It does not connect any particular event to any particular act or omission, or combination thereof, which the witness concluded was negligence — or to acts or omissions which the jury would be entitled to find amounted to negligence-in considering the whole record. In other words, negligence on the part of the defendant surgeon could not have been established by admitting the witness’ testimony.

In the early part of this opinion we dealt with the question of the surgeon’s negligence to and including the very time he consummated his operative procedure. We: concluded that negligence was not proved.. There is likewise an entire want of evidence-of the existence of negligence because of.’ any act or omission “immediately following”. If an act or omission, or combination-thereof, existed as the proximate cause of’ the plaintiff’s condition immediately following the operation, it was part and parcel of the operation itself. Pertaining thereto we have written that there was no evidence that the surgeon was negligent in arriving at his new conclusion, by reason of his findings at L4L5, that he had discovered and corrected the condition of defect, and that there was no other condition of defect which required further exploration or operation.

Exclusion of the evidence tendered, even if erroneous, would not constitute reversible error. Had it been admitted, yet would plaintiff have continued in the position of 'having failed to make out a prima facie .case.

Judgment is affirmed.


author: BATEMAN, Justice.

text:
    S. J. ELLIS et al., Appellants, v. The STATE of Texas, Appellee.
    No. 16427.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 9, 1964.
    Rehearing Denied Nov. 13, 1964.

      Jess Rickman, Terrell, for appellants.
    Harold Hollingsworth and Floyd Shum-pert, Kaufman, Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellee.
   BATEMAN, Justice.

By this action in quo warranto the State of Texas sought dissolution of the incorporated village of Lawrence, in Kaufman County, and the ouster of its elected officials. Based upon a jury verdict, the court rendered judgment granting the relief prayed. Being of the opinion that the jury findings are well supported by pleading and proof and legally adequate to support the judgment, we affirm it.

Incorporation of the village of Lawrence was attempted under the authority of Chapter 11, Title 28 (Articles 1133-1153a), Vernon’s Ann.Civ.Statutes. Article 1133 authorizes the incorporation of a town or village when it contains more than two hundred and less than ten thousand inhabitants. Article 1134 prescribes that the application for incorporation shall be filed in the office of the county judge and shall state the boundaries of the proposed town or village, accompanied by a plat thereof, “including therein no territory except that which is intended to be used for strictly town purposes.” Article 1136 provides inter alia: “If satisfactory proof is made that the town' or village contains the requisite number of inhabitants, the county judge shall make an order for holding an election * * * for the purpose of submitting the question to a vote of the people. * * * ”

It was alleged, and the jury found, that at the time the county judge ordered the election, and at the time of the election, there were not over two hundred people within the boundaries of the village. There was ample proof to support this finding and appellants do not say otherwise. They contend under their first point of error on appeal that the lack of the requisite number of inhabitants was a mere “irregularity” and insufficient, absent a showing that it affected the result of the election, to warrant setting the same aside.

The authorities cited by appellants in support of this point involve departures, from strict statutory directions as to the manner of holding elections, and announce the general rule that such irregularities do not invalidate elections unless they can be shown to have affected the result. But here the attack on the validity of the election goes much further than to point up mere irregularities — here the assault is upon the very right of the people to hold the election. Under our decisions such a right is not inherent in the people; it is derived from the law. 21 Tex.Jur.2d, Elections, p. 282, § 52. As said in Smith v. Morton Ind. School Dist., Tex.Civ.App., 85 S.W.2d 853, 854, wr. dism.:

“In our form of government elections must be held by virtue of some legal authority, and an election held without affirmative ■ statutory authority or contrary to a material provision of the law is itniversally held to be a nullity.”

We know of no statutory authority for a group of two hundred or less to incorporate their community. If there were not more than two hundred people living in the village in question, there was no authority for the incorporation of the village, from which it follows that there was no right in the people to hold the election. “The proceeding to obtain the election is clearly special in its character, and the power and authority of the county judge do not arise until the statute has been complied with in all its essential particulars.” That being true, appellee was under no burden to show that the result of the election was affected, and appellants’ first point of error is overruled.

By their second and third points of error appellants say that this proceeding constituted a collateral attack on the election order and that the court, by overruling their motions for instructed verdict and for judgment non obstante veredicto, erroneously held that the county judge acted fraudulently in ordering the election. They argue that, since no provision is made in the law for a revision, or even a review, of the implied finding of the county judge that there were more than two hundred inhabitants in the village to be incorporated, the election order was final and appellee should not have been permitted to go behind it. They cite a number of cases which seem to support this view, such as State ex rel. Goodnight v. Goodwin, 69 Tex. SS, S S.W. 678; Thompson v. State ex rel. Donley, 23 Tex.Civ.App. 370, 56 S.W. 603; Wilson v. Brown, Tex.Civ.App., 145 S.W. 639; Wilbern v. Cone, Tex.Civ.App., 148 S.W. 818, wr. ref.; School Board of City of Marshall v. State ex rel. Warbritton, 162 Tex. 9, 343 S.W.2d 247; State ex rel. Burkett v. Town of Clyde, Tex.Civ.App., 18 S.W.2d 202, wr. ref., and others. It is well settled that when the county judge receives proof satisfactory to him that there are more than two hundred inhabitants in the village to be incorporated, and there is no charge of fraud or arbitrary action on his part, his decision is not subject to review and is final.

However, in practically all of the cases cited by appellants in support of that rule it is carefully pointed out that there was no pleading or proof of fraud or bad faith on the part of the judge ordering the election. It was alleged in this case that the county judge did not hold a hearing to determine whether there were more than two hundred people in the area, “but arbitrarily ordered the election without any reliable evidence as to the number of people within the boundaries of the proposed town.” There was evidence of probative force to support this allegation; it was submitted to the jury, and the jury found that the county judge acted arbitrarily in ordering the election. In connection with this special issue the court instructed the jury that “the word ‘arbitrarily’ means in an arbitrary manner, and arbitrary means fixed or done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic.” Appellants do not complain here that those instructions were erroneous, and they do not attack the sufficiency of the evidence to support the jury finding. Under our view of the case, this finding made mandatory the judgment that was rendered.

Appellants’ contention that this proceeding was a collateral attack on the election order made by the county judge is without merit; there can hardly be a more direct attack on such an order than by quo warranto. 39 Tex.Jur.2d, Municipal Corporations, p. 408, § 58.

Appellants’ second and third points are therefore overruled.

Appellants argue, under their fourth point of error, that the trial court erroneously held, as a matter of law, that more territory was included within the boundaries of the town of Lawrence than was intended to be used for strictly town purposes. The trial court made no such holding, but the jury so found as a fact. There was competent evidence to support this finding, which was in line with appellee’s pleading.

It is well established that this is a question of fact for the jury, to be tried as any other fact issue. Gray County Production Co. v. Christian, Tex.Civ.App., 231 S.W.2d 901, no wr. hist; Ewing v. State, 81 Tex. 172, 16 S.W. 872; State ex rel. Thornhill v. Huntsaker, Tex.Civ.App., 17 S.W.2d 63, no wr. hist.; State ex rel. Brauer v. City of Del Rio, Tex.Civ.App., 92 S.W.2d 287, no wr. hist.; State ex rel. Perrin v. Hoard, 94 Tex. 527, 62 S.W. 1054; Thompson v. State ex rel. Donley, 23 Tex.Civ.App. 370, 56 S.W. 603, no wr. hist. The fourth point is overruled.

Appellants also argue under each of their points that the State had no jus-ticiable or litigable interest in the validity vel non of this election. We see no merit in this contention and overrule .it. Turner v. Lewie, Tex.Civ.App., 201 S.W.2d 86, wr. dism.; Staples v. State, 112 Tex. 61, 245 S.W. 639; City of Goose Creek v. Hunni-cutt, 120 Tex. 471, 39 S.W.2d 617. The State is the real prosecutor of such a suit, which is instituted for the benefit of the public. 39 Tex.Jur.2d, Municipal Corporations, p. 411, § 59.

The judgment of the trial court is affirmed.

Affirmed.

       Huff v. Preuitt, Tex.Civ.App., 53 S.W. 844, no wr. hist.


text:
    C. B. CHANEY et al., Appellants, v. WESTERN BUILDERS SUPPLY COMPANY, Appellee.
    No. 16572.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 23, 1964.
    Whiteside & Baker, and Lon Baker, Fort Worth, for appellants.
    Kerr, Day & Cook, and Taylor Gandy, Fort Worth, for appellee.
   MASSEY, Chief Justice.

The question posed on the appeal is whether, within the provisions of the venue statute, Vernon’s Ann.Civ.St.Tex. Art. 1995, “Venue”, subsection 5, “Contract in writing”, a plaintiff is entitled to maintain venue in the county of suit when such right is contested by the defendant’s plea of privilege.

A part of the cause of action sued upon was for damages for breach of contract to return leased property to the plaintiff as contracted to be done at the end of the lease period. In that connection the contract recited the plaintiff’s address as “501 West Hurst Blvd., City and Postal Zone Hurst, County Tarrant, State Texas”; and the delivery of the leased equipment, (trucks, etc.) to “Lessee, f. o. b. 501 West Hurst Blvd., Hurst, Texas”. A part of the consideration promised thereby on the part of the defendants was: “Upon expiration or termination hereof, the equipment shall be returned unencumbered to Lessor by Lessee at Lessee’s sole expense and in the same condition as when received by Lessee, * * *. Lessee shall pay rent at the said rate until all said equipment arrives at Lessor’s premises.” (Emphasis supplied.)

We hold that by the written contract sued upon the defendant lessees agreed to perform the obligation sued upon, to-wit: the return of the leased property, — to a definite place in a particular county, to-wit: Tar-rant County, that in which suit against them was filed. Such being true the requirements of subsection 5 were satisfied as applied to a portion of the contractual obligations sued upon, and the defendants’ plea of privilege was properly overruled. There would be no necessity that there be the same satisfaction as applied to other obligations in the same contract, for breach of which additional damages were sought.

Here the requirement that the contract contain express provision for performance of an obligation (sued upon) in Tarrant County was satisfied. There is no necessity for any strained construction. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (1948); Clark, Venue in Civil Actions, p. 36, et seq., Ch. 5 “Contract in Writing”.

Judgment affirmed.


author: ARCHER, Chief Justice.

text:
    CITY OF TEMPLE et al., Appellants, v. Thomas V. BROWN et al., Appellees.
    No. 11229.
    Court of Civil Appeals of Texas. Austin.
    Oct. 21, 1964.
    Rehearing Denied Nov. 18, 1964.
    Joe Carroll, Temple, for appellants.
    Cofer, Cofer & Hearne, Austin, for ap-pellees.
   ARCHER, Chief Justice.

This is an appeal from a judgment dated December 31, 1963, denying Thomas V. Brown reinstatement as Fire Alarm Operator in the Fire Department of the City of Temple, he having been dismissed on February 25, 1963; Brown alleged that from October 18, 1949 to October 2, 1961 he was an employee of the Fire Department of the City of Temple. Brown was indefinitely suspended on January 31, 1963, and such suspension was made permanent on the 25th of February, 1963 by the Firemen’s and Policemen’s Civil Service Commission and Brown was permanently dismissed.

Thomas V. Brown was joined in a second amended petition by S. M. Woodruff, Grant Matlock and J. W. Brooks seeking back pay due for overtime and Brown sought reinstatement.

The City and the Service Commission filed a plea in abatement and a number of special exceptions and denied that plaintiffs were entitled to back pay, and a general denial and plead that the claims were barred by the two years statute of limitation.

The pleadings are long and include many quotations from the statute and the City Charter but no question is raised as to recitations but only the effect thereof. It is not deemed essential to unduly lengthen this opinion by inserting such pleadings in greater detail than has been done.

The case was tried by the Court without the intervention of a jury and a judgment was rendered on December 31st, 1963 denying Brown’s plea for reinstatement and awarded him judgment for $7,339.00 plus accrued interest in the amount of $1,115.80. The Court also entered judgment for $3,-587.00 plus $411.71 accrued interest to S. M. Woodruff, a judgment in favor of Grant Matthews for $151.44, plus accrued interest in the amount of $10.44 and a judgment in favor of J. W. Brooks for $55.20 and accrued interest in the amount of $6.62, and allowed interest from date on all recoveries.

The defendants in open Court excepted and gave notice of appeal of the judgment except that portion denying the appeal of Brown for reinstatement.

Brown excepted and gave notice of appeal to that portion of the judgment dismissing him and rendering judgment that he take nothing on his plea for reinstatement; no other exceptions or appeals from the judgment were taken by any of the other parties who had obtained money judgments.

Brown filed his motion to affirm on certificate reciting the events in the trial, such as the date of the judgment, and that the City gave notice of appeal and was not required to file a bond, but required to file transcript and statement of facts within the time as required by Rule 386, Texas Rules of Civil Procedure.

The motion further stated that the filing of a motion by the City was unnecessary and did not extend the time for filing the transcript and statement of facts with the Clerk of this Court, and that the appeal had been perfected when notice of appeal was given at the rendition of judgment. The movant cited City of Corpus Christi v. Gregg, 155 Tex. 537, 289 S.W.2d 746 (1956).

The City opposed the motion to affirm on certificate and cites Rule 306c, T.R.C.P. and the case of Park v. Essa Texas Corporation, 158 Tex. 269, 311 S.W.2d 228, and contended that an unnecessary motion for new trial could be filed and that it could appeal from the order overruling such motion.

The motion was overruled by this Court subject to final consideration. The case has been briefed and argued by the interested parties on appeal. Since we are affirming the judgment we do not deem it necessary to discuss the motion to affirm on certificate further.

The suit was brought by four Temple firemen for overtime pay for overtime services as fire alarm dispatchers and for a declaratory judgment concerning Section 6 of Penal Code Article 1583-1, which provides a maximum number of hours in the work week of fire alarm dispatchers and provides the rate of compensation for overtime.

There is no issue as to time of employment or the positions of any of the appel-lees, or hours of employment, pay or overtime pay, if the City is liable.

As a defense to the suit the defendants pleaded laches, and such defense is not available in the suit for overtime pay, such being a statutory right under the provisions of Article 1583-1. 35 Tex.Jur.2d 462-6, Laches and Stale Demands, Secs. 3 and 6; Riggs v. Riggs, Tex.Civ.App., 322 S.W.2d 571, no writ history. Statutory obligations in the firemen’s and policemen’s cases are subject to the bar of the two years statute. Whitley v. City of San Angelo, Tex.Civ.App., 292 S.W.2d 857, no writ history.

In the instant case the Court correctly limited recovery to that overtime which' had accrued within two years before suit was filed respectively. City of Wichita Falls v. Cox, Tex.Civ.App., 300 S.W.2d 317, er. ref., n. r. e.

The question of inexcusable delay is one of fact which was found adversely to the defendant, and the Court was justified in doing so. Fruth v. Gaston, Tex.Civ. App., 187 S.W.2d 581, writ ref., w. o. m.

The City sought to abolish the position of fire alarm dispatchers by adjusting the work week so as to require 24 hour shifts per week instead of 44 hours for fire alarm dispatchers. We do not believe this can be done successfully, but that each plaintiff is entitled to recover overtime pay for all hours in excess of 44 which he served during each week in which he was assigned to duty as a fire alarm dispatcher. City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153.

We sustain the judgment of the District Court upholding the dismissal of Brown.

The judgment of the District Court is affirmed.

Affirmed.