author: BELL, Chief Justice.

text:
    Kenneth M. RUMSEY et ux., Appellants, v. FREEWAY MANOR MINIMAX et al., Appellees.
    No. 14814.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Jan. 11, 1968.
    Rehearing Denied Feb. 1, 1968.

      Tommy R. Letbetter, Houston, Schmidt & Garrett, Houston, of counsel, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Sam H. Hood, Jr., Gary B. Webb, Houston, for appellee Freeway Manor Minimax.
    Wm. H. Shireman, Corpus Christi, for appellee Jett Echols.
   BELL, Chief Justice.

Appellants sued Freeway Manor Mini-max, a retail grocery store, herein called Minimax, and Echols Manufacturing Company, the manufacturer of “Echols King-tex”, a roach poison, herein called Echols, to recover damages resulting from the death of their three year old son, Bruce, who allegedly died as a result'of ingesting some of the roach poison which contained thallium.

After appellants rested their case, the trial court sustained the motion of Mini-max for an instructed verdict and at the conclusion of all evidence it instructed a verdict favorable to Echols. A judgment was rendered that appellants take nothing.

The appellants by point of error here assert liability on the part of Minimax, the retailer, on the ground of implied warranty.

Appellants assert liability on the part of Echols on the following grounds:

1. There was a fact issue as to whether Echols was negligent in the labeling of “Echols Kingtex”.

2. There was a fact issue as to whether there was negligent failure to warn.

3. There was a fact issue as to whether there was a breach of express warranty.

4. There was a fact issue as to whether there was a breach of implied warranty.

As to both appellees it is asserted there was error in instructing a verdict because there was only a fact issue as to whether appellants were guilty of contributory negligence and whether they could not recover because of the doctrine of volenti non fit injuria.

The fundamental basis of recovery is that the label on the bottle purchased by Mrs. Rumsey did not contain a statement that there was no known antidote for thallium.

In May of 1961, Mrs. Rumsey purchased a one ounce bottle of “Echols Kingtex” from Minimax. A friend had told her she used this insecticide, so she decided to buy it. She had some roaches in the garage. She found it on the shelf and she read the label before she purchased it. She read the antidote given, which was as follows: “Give a tablespoonful of salt in a glass of warm water and repeat until vomit fluid is clear. Have victim lie down and keep warm. Call a physician immediately! Warning: Cumulative Poison. Absorbed through the skin. Do not get in eyes, on skin or on clothing. Wash thoroughly after handling. Keep children and domestic animals away from baited areas and burn all pests killed.” She relied on the label when she made the purchase. She also saw the crossbones and skull painted in red on the label. She also saw the word “Poison” written on the label in three different places. She knew this was something not to let children get into.

She, following directions on the label, filled small bottle caps — Seven-Up caps— and put them in the garage. The directions on the label that she was talking about read: “Place in small lids or beverage caps. Only a few necessary. Place in cabinets and closets where children and pets cannot reach. Place remainder in jar and use as needed. It is good as long as you have use for it.” The caps with the poison would be placed at night around the garbage cans in the garage and she would then lock the doors. After picking them up from the floor she would place them on the back of a shelf. The shelf was about A1/2 feet from the floor. She would put them at the back of the shelf that was about 8 inches wide. She was careful not to let Bruce know where they were. If her husband was home she had him keep Bruce while she put them out. If her husband was gone, she would put them out after Bruce had gone to bed. She had followed this procedure during the month of May and part of June.

On June 27, 1961, around 10 o’clock a. m., Bruce and a six year old boy, Mark Harris, came over to play. They played in the breezeway between the house and the garage. About 11 or 11:30 they went across the street to play in a swimming pool. He later played at another neighbor’s house. About one o’clock Bruce had his lunch and then went outside. He came back and asked where his Seven-Up cap was. She asked him to show her what he meant. He took her to the garage and she saw the other two lids on the floor and the poison was spilled and she noticed Bruce had poison on his cheek and hands. She took him to the bathroom to wash the poison off and she found the other cap on the dressing table in the bathroom. She immediately went to her next-door neighbor and they immediately took Bruce to the doctor, who was about five minutes away. She didn’t try the warm salt water first aid given on the label because she felt that would take longer than taking him to the doctor.

When the first doctor learned Bruce had eaten thallium, he called several people and looked in some books. He then told Mrs. Rumsey to take him to another doctor. From the time she got to the first doctor’s office until she got to the second doctor, about an hour had elapsed. The second doctor examined Bruce and then took him across the street to the hospital. They were at the hospital for an hour or an hour and a half. They then went home. The child seemed drowsy. She took him back to Dr. Rothenberg, the second doctor. The boy had vomited some before they left the hospital. The child was in pain on the return to the doctor’s office. The boy continued to vomit. After being there a short while, the child’s eyes began to roll and he turned blue. He was taken to the hospital again. The child expired there.

Mrs. Rumsey said she had never heard of thallium. Her son told her he had eaten some of the poison. The six year old boy said he had knocked the caps off the shelf. He told this to his mother. He had eaten none of the poison. While at the hospital the first time, a nurse pumped Bruce’s stomach.

There was nothing on the label that said “Kingtex” if eaten was fatal. Mrs. Rum-sey told her husband that anything they would recommend putting in the cabinet with food and dishes wouldn’t be too harmful. Dr. Moise, the first doctor, said there was no antidote.

When purchasing the poison at Minimax, she did not talk to anyone connected with the store about making the purchase. She never, before the purchase, talked to anyone about how poison thallium was. She used the poison on the basis of the label. When she sees the skull and crossbones she thinks of caution. Too, they signify death. At the time she read the label she didn’t think it would cause death because of the antidote. Since she knew poison could cause death, that was the reason she took the precautions she did in making use of it. When she stored the poison she put it up on the very top shelf. She took every precaution to see that Bruce was not exposed to it because the label said “Poison”. She thinks the only reason Bruce was exposed to the poison was because the Harris boy either knocked it off the shelf or got it off.

Mr. Rumsey was out of town so much, he knew nothing of the incident. He left the use of the poison to Mrs. Rumsey.

From the testimony of the pathologist, who performed an autopsy, and the chemist and toxicologist, who made various anal-yses, it certainly could be concluded that death resulted from thallium poisoning.

Dr. Rothenberg testified when he first examined Bruce there was no evidence of illness. However, where there had been a possible ingestion of a toxic substance, it is customary to pump the stomach. Bruce’s stomach was pumped and washed with 1000 cc of potassium iodide. When the child returned to the office and began having convulsions, intracardiac adrenalin, cardiac message and stimulating drugs were used. They were ineffective and the child died about 6:30 p. m. The doctor said there was one possible antidote but the results of its use are indefinite. It doesn’t work .all the time. The drug itself is toxic. The witness did not name the drug or the manner of its use. The purpose in pumping and washing the stomach is to remove the toxic substance before it becomes absorbed into the system. If you remove as much as you can, you can at least prevent some of the toxic reaction. If small amounts of thallium are taken over a long period it causes loss of hair. Acute thallium poisoning effects the central nervous system. It causes nausea, vomiting, convulsions and coma and other things that are related. It affects the respiratory system. His experience was that most of the effects of thallium are in connection with prolonged ingestion. This one appeared to be an acute sensitivity to the drug. Some people are more sensitive to it than others. Usually thallium is slow in acting. Usually you would not have the convulsions within two hours as in this case. The purpose of using iodide is because it will help the system throw off the thallium. This is in a measure an antidote that was recommended and he used it. The witness concluded the child was highly sensitive to thallium. Warm salt water causes vomiting. It is not an antidote in itself, but by causing vomiting it can help. The use of warm salt water is not as effective as pumping the stomach.

Echols Kingtex, as shown on the label, contained 1% thallium sulphate. The balance of the compound consisted of sawdust or small chips of some kind. A chemical analysis of the contents of the bottle purchased showed it contained 1% thallium sulphate.

Dr. Dobson had done research into the effects of thallium and has consulted on a number of cases of thallium poisoning. It affects the central nervous system, the stomach, the intestines and the liver. It was his opinion that in June, 1961, there was no known effective antidote for thallium poison. The only way to do is to rid the body of it while it is possible to do so. The only way to do this is to make the person who has ingested it vomit or pump his stomach as soon as possible. Once the thallium gets into other parts of the system, there is nothing medical science can do. If there was a case of acute thallium poisoning the only thing you could do in June, 1961, was to employ what is called expectant or supportive therapy, that is, give the patient fluids intravenously, give a drug such as a barbiturate, keep his nutrition up and keep him out of shock if possible. The antidote given on the label is the only one that was available. This witness stated that an antidote can be used to mean anything which is used in the treatment of poison. He regarded vomiting as first aid. “Specific compounds such as British Antilucite, which is used for arsenic, is a specific or near specific antidote which offers some change chemically or otherwise of removing the compounds from the body doing little or no damage. To me, at this state I think we can talk about specific antidotes which specifically block the major part of the toxic reaction.” He stated the standard feeling among people is that there is no specific antidote for thallium poisoning. There is no specific antidote for several other substances, including aspirin and certain petroleum products.

It was admitted that this roach poison was registered under the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.A., Secs. 135-135k, and the label had been approved by the Secretary of Agriculture. Too, it was admitted that the label affixed to the poison bought by Mrs. Rumsey had been accepted by the appropriate authority in accordance with the requirements of the Act. Too, it was admitted that the label complied with the Texas Hazardous Substances Act and had been approved by the State Department of Health as required by said Act, Article 726-1, Vernon’s Annotated Penal Code.

The effect of Mr. Echols’ testimony was to establish his compliance with the state and federal regulations. Too, he stated that thallium could be expelled through the urine and there was some injection you could give that would aid in the expelling of thallium. He did not state what it was. He stated he kept abreast of the research done. At first it was permissible to use 3% thallium, but in 1960 it was provided that no more than 1.25% thallium sulphate or 1% thallium (metallic) was allowed. He had heard there was no antidote except such as would induce expulsion of the poison, such as through the urine.

We have not noticed the testimony concerning how much thallium per pound of body weight is thought to be fatal because there is opinion evidence, as above stated, that raised a fact issue on whether thallium poison was the cause of death. There was sufficient evidence to show it did.

Points 1 and 2 assert as against Echols that there was evidence of negligent labeling and of failure to warn. The real contention under both points is that there was no known antidote for thallium poisoning and that to term the use of warm salt water an antidote is negligence. Too, there was negligence not to affirmatively warn that there was no known antidote for thallium poison.

The best we are able to determine, the doctor, testifying that there was no known antidote, used the term “antidote” to mean a method whereby after the poison has been absorbed into the system another chemical of some sort can be used which will in some way block its spreading further through the system by causing the poison to be ejected, thus either eliminating some harm caused or minimizing the harm so as to prevent death. We take it that he terms the use of a means that eliminates the poison from the stomach before it has been absorbed by the body system, such as by pumping the stomach or by in some manner inducing vomiting, as a mere first aid measure to prevent its absorption and this is not encompassed in the term “antidote”.

Appellee Echols’ position is that he labeled the poison with an antidote printed thereon within the meaning of the definition given by 7 U.S.C.A., Sec. 135; that the label was approved by proper authorities, state and federal, and he was by law required to use this labeling and as a matter of law he cannot be guilty of negligence. His position is that he could not market his product without the precise label, and if he did so he would be guilty of violating the law.

Appellant’s position is as above stated and that the approved labeling was merely a minimum requirement and would not prevent additional warnings such as that there was no known antidote.

The term “antidote” is defined by 7 U.S.C.A., Sec. 135 (r) as meaning any practical immediate treatment in case of poisoning and includes first aid treatment. Section 135a of Title 7 U.S.C.A., provides the label should contain a statement of “an antidote for the economic poison.” Article 726-1, Sec. 3(d) (1), V.A.P.C., provides that the label shall have the word “poison” prominently printed on it, followed by a “statement of antidote or first-aid treatment for the poison.”

While we do not find in the federal statute any specific reference to thallium, there is in the record the “Interpretation with Respect to Pesticides (Economic Poisons) Containing Thallium Compounds Intended for Household Use.” This was prepared by the Agricultural Research Service, Department of Agriculture. It is designated “Regulations for the enforcement of the Federal Insecticide, Fungicide and Rodenticide Act.” (7 U.S.C.A., Secs. 135 — 135k). The employees of the Department of Agriculture were given the same authority as the Secretary of Agriculture (7 U.S.C.A., Sec. 135i), if they were so designated by him. This report expressly deals with thallium and after investigation certain regulations were promulgated. Among those was one that provided that the pesticide should contain no more than 1.25% of thallium sulphate, or 1.0% of thallium calculated as the metallic element. This was required to be stated on a label on the container. We shall not notice all of the precautionary statements required for the label, except the antidote, because it is admitted that they were present. The Department of Agriculture prescribed the “antidote” which we have above quoted, and it was employed on the label used by Echols after it had been expressly approved upon his application.

Article 726-1, V.A.P.C., provides that the label, among other things, shall contain “a statement of antidote or first-aid treatment for the poison.” Said article also allows the sale of a mixture or substance containing thallium of not more than 1% expressed as metallic thallium if the label contains specified warnings and a statement of an antidote or first aid treatment. The label used was submitted to the Commissioner of Health of Texas. This Department, in a letter to Echols’ attorney, wrote: “I also believe the labeling is in compliance with the labeling requirements of the law * * * ” There is no definition of antidote in the Texas statute.

The following are some definitions of the term “antidote” given in two dictionaries: (1) Webster’s New International Dictionary, Second Edition, defines antidote as (a) a remedy to counteract the effects of poison, and (b) whatever tends to prevent mischievous effects or to counteract evil that something might produce; (2) The American Illustrated Medical Dictionary, by Dorland, defines antidote thus: 1. a remedy for counteracting a poison. Chemical — an antidote that changes the chemical nature of the poison. Mechanical — an antidote that prevents the absorption of a poison. Physiological— an antidote that counteracts the effects of a poison by producing other effects.

Dr. Rothenberg in his testimony defined an antidote thus: “An antidote — is a substance that will combine with a poisonous substance to reduce its poisonous activity.” He further testified that first aid was a part of treatment for poison.

We are of the view that there could be no recovery on a basis of implied or express warranty. The product sold was poison and was knowingly purchased as such for the purpose of using it as an insecticide to kill roaches. It was fit for the purpose for which sold.

We are, however, of the view that the trial court erroneously instructed a verdict for the defendant, Echols Manufacturing Company, because there was evidence from which the jury could conclude that such defendant was guilty of negligence in the wording of its label in that the wording would lead a reasonably prudent person to conclude there was an antidote for thallium poisoning and that it consisted of the giving of warm salt water to induce vomiting. There was sufficient evidence to show that this was mere first aid to prevent the absorption by the bodily system of the poison. However, there was no language on the label to indicate that there was no specific antidote, that is, there was no language to indicate that once the poison had been absorbed there was nothing that could be given to counteract the effect of the poison.

There is a common law duty on one who markets an inherently dangerous product to fully disclose the extent of the danger in its use and to disclose the measures that may be taken to avoid fatal consequences of its use. It is, of course, true that the economic poison (thallium) was by the label represented to be poisonous and the ordinarily prudent person would know that its ingestion could result in death. However, the ordinarily prudent person also knows that for most poisons there is not only a first aid remedy that will prevent the absorption of the poison by the system, but also for most poisons there is something that may be introduced into the system that will counteract the effect of the poison absorbed. If there is no such agency, it is the duty of the manufacturer to fully inform the public to whom it intends to market its product that there is no such agency.

No case, precisely in point, has been cited to us, nor have we in our extensive research found any. The nearest case in point is that of Pfizer and Company, Inc. v. Branch, 365 S.W.2d 832, 833 (Tex.Civ.App.) dism., w. o. j. In that case the substance named “Combiotic” manufactured by the defendant to be used as an injection in cattle to prevent infection had a label which warned that there might be an allergic reaction and if there was use of it should be stopped. Defendant, however, failed to give an antidote on its label. Upon receiving the injection, several head of cattle died. The court held the warning given was insufficient and that the defendant should have given an antidote on its label.

While we find no cases dealing with the failure to warn that there is no specific antidote, we feel that even though poison is known to the ordinary person to be inherently dangerous, there is a common law duty to warn of the full extent of the danger and certainly a poison for which there is no specific antidote has more potential for harm than does a poison for which there is a specific antidote. This case is a good illustration of the last statement. There is an economic poison that is widely used around homes where children play. Despite care to keep it away from them, they do get to it. If ingestion is discovered before absorption, first aid may suffice, but if not then an antidote is necessary. If there is no antidote, nothing can be done. It is to be foreseen that a child may get the poison, take some of it and such will not be known until absorption by the system, particularly a slow acting poison such as thallium. We think this duty is recognized by the above cited case and the following cases from other jurisdictions: Maize v. Atlantic Refining Company, 352 Pa. 51, 41 A.2d 850; Gonzalez v. Virginia-Carolina Chemical Co., 239 F.Supp. 567 (U.S. S.Ct., E. Dist. of S.C.); Hubbard-Hall Chemical Co. v. Silverman, 340 F.2d 402 (1st U.S. Ct. of App.).

Appellee Echols urges, however, it cannot be held guilty of negligence for failure to warn because it complied with the U. S. Act regulating the marketing of insecticides as well as the Texas Act regulating the marketing and that the label employed was approved by the appropriate agencies to which authority had been delegated. Neither the State nor the Federal Act purports to change the common law duty to warn. It merely authorizes the marketing of specified economic poisons if the statutes and the regulations promulgated are complied with. Neither Act purports to deal with property rights. It makes it a crime to market such a product without complying with the Act. Failure to comply with the Act would be negligence per se. However, a mere compliance does not as a matter of law, in all cases, mean that the party is free from negligence. Prosser, Law of Torts, Sec. 35, p. 205. Whether there is negligence depends on the facts of each case. We are of the view that the statutes and regulations by the agencies merely set minimum standards. Compliance with the standards is evidence on the issue of negligence. See the following cases: McClanahan v. California Spray-Chemical Corp., 194 Va. 842, 75 S.E.2d 712; Spruill v. Boyle-Midway, Incorporated, 308 F.2d 79 (4th U.S.Ct.App.); Gonzalez v. Virginia-Carolina Chemical Co., supra, Maize v. Atlantic Refining Co., supra; Hubbard-Hall Chemical Co. v. Silverman, supra.

There was only a fact issue as to whether Mrs. Rumsey was guilty of contributory negligence in not seeking to give the child warm salt water to induce vomiting. A doctor was only five minutes away from her home. The child was only 3½ years old. The difficulty of successfully administering such to a child of that age, even through the use of force, is a matter of common knowledge.

We are also of the view that at most there was a question of fact as to whether Mrs. Rumsey was guilty of negligence in the manner in which she made use of the poison.

Nor do we feel that a court could say as a matter of law that Mrs. Rumsey voluntarily assumed the particular risk involved in this case, that is, using the poison because it does not appear she knew or should have known there was no specific antidote. Halepeska v. Callihan Interests, 371 S.W.2d 368 (Tex.).

We are of the view there was no evidence of probative force of a new and intervening cause. The testimony that the young neighbor child, Mark Harris, told his mother he knocked the poison down is but hearsay. Even if there was evidence of probative force, it would not be a new and intervening cause. It is a happening within the realm of foreseeability and also would at the most be a concurring cause.

The only point of error urged against Freeway Manor Minimax is that there was an implied warranty. As we have held above, there is no implied warranty. The judgment in favor of Freeway Manor Minimax will, therefore, be affirmed.

In the light of another trial as to Echols, we should pass on the points of error relating to the admissibility of certain evidence.

We think the fact that Mr. Echols was present at a legislative hearing at which consideration was being given to legislation relating to the use of thallium in insecticides, and heard Dr. Dobson testify there was no known antidote for thallium poisoning, is admissible. It is evidentiary on the issue of Echols Manufacturing Company’s being negligent in its labeling of its product.

We are also of the view the court correctly allowed in evidence the interpretive regulation. It is also material on the issue of Echols’ negligence.

The judgment as to Freeway Manor Minimax is affirmed. As to Echols Manufacturing Company the judgment is reversed and remanded, Associate Justice Peden not participating.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    CONTINENTAL CASUALTY CO., Appellant, v. Richard M. KING, Appellee.
    No. 7757.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1967.
    Rehearing Denied Dec. 26, 1967.

      Gibson, Ochsner, Harlan, Kinney & Morris and James H. Doores, Amarillo, for appellant.
    Gordon, Gordon & Buzzard and Ross N. Buzzard, Pampa, for appellee.
   NORTHCUTT, Justice.

This is a suit on an insurance contract providing a lump sum of $25,000.00 for total and permanent disability due to accidental injury. Plaintiff alleged an accidental injury to his heart on December 9, 1964, and total and permanent disability resulting therefrom. The case was tried to a jury upon special issues. In answer to the special issues, the jury found that plaintiff sustained an injury to his body on or about December 10, 1964; that plaintiff sustained total disability; that the injury was the sole cause of such disability; that such total disability had continued for a period of twelve consecutive months following December 19, 1964; that total disability began within 365 days following December 10, 1964; that total disability would be permanent from and after the end of the twelve months period following December 19, 1964; that total disability has been continuous from and after twelve months following December 19, 1964; that plaintiff gave written notice of claim within a reasonable time after the expiration of twenty days after the occurrence of the loss and that such injury inquired about was accidental. Judgment was rendered in favor of the plaintiff upon the verdict of the jury. From that judgment, the defendant perfected this appeal. Hereafter, the defendant, Continental Casualty Company will be referred to as appellant and the plaintiff, Richard M. King, as appellee.

Appellant’s first six assignments of error contend that appellee did not give proper notice as provided for in the policy and that the appellant did not waive its policy requirement requiring written notice by thereafter furnishing forms for proof of loss. The jury did not answer the issue inquiring if the appellant waived such notice but found that appellee gave written notice of claim within a reasonable time after the expiration of twenty days after the occurrence of loss. If notice was given within a reasonable time, no waiver by appellant was necessary. The provisions of the policy in question provides as follows:

PART VII INADVERTENT ERROR The insurance of an Insured Person shall not be prejudiced by the failure on the part of the Holder to transmit reports, pay premium or comply with any of the provisions of the policy when such failure is due to inadvertent error or clerical mistake.
PART VIII UNIFORM PROVISIONS NOTICE OF CLAIM: Written notice of claim must be given to the Company within 20 days after the occurrence or commencement of any loss covered by the policy, or as soon thereafter as is reasonably possible. Notice given by or on behalf of the claimant to the Company at 310 South Michigan Avenue, Chicago, Illinois 60604, or to any authorized agent of the Company, with information sufficient to identify the Insured Person shall be deemed notice to the Company.
CONFORMITY WITH STATE STATUTES : Any provision of the policy which, on its effective date, is in conflict with the statutes of the state in which the policy was issued is hereby amended to conform to the minimum requirements of such statutes.

It would be necessary to determine if the insured sustained injury from an accident which caused total disability as defined in the policy independently of other causes with such disability commencing within 365 days from the injury and continuing for twelve consecutive months and being total and permanent and continuous at the end of such period.

On the day in question, appellee came home from work after completing his usual twelve hour day, cleaned up, watched T.V. and went to bed about 9 P.M. His employer called at 11 P.M. directing him to take his truck to unload another truck which was stuck in a ditch. It was a cold night and was raining. After leaving the pavement, he began to have trouble with mud balling under his trailer wheels. He was driving a five axle rig that weighed unloaded approximately 20,000 to 23,000 lbs.

Appellee testified in part as follows:

“Q. All right. Well, what would you do when the mud began to ball up ?
A. I began to work the truck backwards and forth and tried to go forward as far as I could, and then back up to where I thought I could have — make more run and make more progress going forward, and one thing led to another until the tractor got out of control, and started jack-knifing, and then that’s—
Q. (Interrupting) Did it have a tendency to jack-knife before that?
A. Well, it had a tendency to jack-knife most any time in the mud.
Q. Did this require a good deal of effort on your part?
A. Yes.
Q. How would it require effort ?
A. Because you are sitting there in a strain, working the truck with the throttle and the clutch and your gears, shifting.
Q. All right. After the truck did jackknife, what happened, please ?
A. I shut her down and called them over the two-way radio that I had came as far as I could go and they’d have to send a caterpillar down the road after me, pull me up to where they were.
Q. Just after it jack-knifed, did you have any pain?
A. Yes.
Q. How did it feel?
A. Well, I began to — my chest began to tighten up and perspiration started breaking out, and I was getting short of breath, couldn’t get my breath. I immediately turned the heater off and rolled my glass down, and that helped, but I didn’t — for the next 15 or 20 minutes, I never — it took me about that long to get a decent breath.
Q. Did you .say you broke out in a sweat ?
A. Yes, I broke out in a clammy sweat.
Q. All right. Did you say you radioed for help?
A. Yes.
Q. Who did you radio?
A. The terminal manager, which was Royce McDiver.
Q. And what did you tell him ?
A. I told him he’d have to send a caterpillar up there to pull me on down there, that I had came as far as I could go.
Q. Then, what did you do?
A. Well, he told me he’d send help up there, and I just shut it — I didn’t even— I didn’t try any more. I just laid over the steering wheel and tried to relax, get to feeling a little better while I was waiting on the cat to come and get me.
Q. Do you know how long it took the cat to get there?
A. Oh, in the neighborhood of 20 to 35 minutes.
Q. And then, what did you all do?
A. Well, there was a boy hooked the cat on to me, and then we went down the road to where the other truck was.
Q. Then, what happened?
A. Then, we got out and took the two hoses from the two trucks and hooked up the two pumps together and unloaded his truck on to mine.
Q. Did you make any comment to Mr. McDiver about your trouble there and what happened to you?
A. Yes.
Q. And what did you tell him?
A. I told him that something had happened back up the road that had never happened to me before, and I didn’t have any idea what it was or nothing, and so we just — he didn’t question me no more about what — other than, he asked me, when we finished and put our hoses back in each one of our trucks, he asked me how I was feeling, and I said, “Well, I don’t feel sick at my stomach, or anything like that”, but I said, “Every time I bend over and raise up, I’m dizzy; I’m weak, but I’m not like I was going to throw up or sick at my stomach”. I just had still a hurting feeling in my chest and my breathing was awful short, but I wasn’t, as far as being sick, outside of that, I wasn’t sick, but I was — dizziness, is what I was, and weakness.
Q. Did you drive out of there?
A. No, sir.
Q. How did you get out of there?
A. We came back in the car.
Q. Whose car ?
A. The terminal manager, Royce Mc-Diver’s car.
Q. Who did you ride with? Did he drive or did you drive?
A. No, he was driving.”

Appellee did not go to work the next day after his injury but went to see Dr. Hackley who examined him and after treating him gave him a prescription. After two or three days, he went to Pampa to see Dr. Ashby, his family doctor, and after examining appellee, Dr. Ashby put him in the hospital where he remained for ten days and after he was out of the hospital, he visited Dr. Ashby every two weeks the first month and then three weeks and then once a month. After a certain length of time, Dr. Ashby consented for him to go back to work on condition that he rest and not exert himself. Appellee went back to driving a truck about the first of March, 1965 doing the usual work and drawing the same compensation as before the injury and continuing until January 29, 1966, which was the last time he drove a truck. At that time, on February 4, 1966, Royce McDiver, terminal manager for appellee’s employer, required appellee to go to Dr. Kleeburg for an I.C.C. physical examination. Dr. Kleeburg made his examination and told appellee to return to work and to continue with his duties until appellee heard from him but his employer would not permit appellee to go back to work until Dr. Kleeburg made his report. About a week or 'ten days after February 4, 1966, there was a conference with Dr. Kleeburg and Royce McDiver. Aubrey Covington and appellee were present at this conference. Dr. Kleeburg refused to pass appellee for employment to drive a truck because his heart damage was too severe and said ap-pellee should not exert himself at all. On or about March 12, 1966, appellee contacted his attorney about this claim and on March 14, 1966, the appellee’s attorney by letter first notified appellant of this claim.

It is appellant’s contention that appellee was obligated to give appellant notice of the accident within twenty days after the accident or a reasonable time thereafter and appellant was not liable because appellee failed to comply with the terms of the policy requiring such notice. It is true that it was some 459 days from the accident until appellant was notified thereof.

It is appellee’s contention that since the policy provided that written notice was to be given within twenty days after the occurrence or commencement of any loss covered by the policy, or as soon thereafter as reasonably possible, and since he had been directed by the doctors to go back to work, and neither the doctors nor his employer had given him any cause to worry, that it was not until February 15, 1966 that appellee realized his condition and that it was then that the loss commenced and that he gave notice thereafter in a reasonable time.

It is stated in Vol. 45 C.J.S. Insurance § 985b as follows:

“The time allowed by an accident policy for giving notice generally begins to run when the particulars or result of an accident are ascertained, where they are not immediately apparent. The time allowed by the policy for giving notice begins to run when the particulars or result of an accident are ascertained, where these are immediately apparent.”

With the exception of the ten days appellee was in the hospital immediately after the accident, he was informed by the doctor to continue with his regular work. He was finally notified of his true condition on or about February 15, 1966. Dr. Falkenstein testified appellee was totally disabled and then later stated he was totally disabled in his opinion as a truck driver. The doctor also testified that appellee’s disability began the night he was driving the truck and suffered the coronary occlusion. It is stated in American Guardian Insurance Company v. Rutledge, Tex.Civ.App., 404 S.W.2d 847 as follows:

“(2) Reasonable time within which notice of the occurrence or commencement of any loss covered by the policy must be given by insured to insurer depends on individual facts and circumstances of each particular case. International Underwriters Insurance Company of America v. Sherwood, 228 F. Supp. 465 (D.C.1964); 18 A.L.R.2d 466; Simmons v. Western Indemnity Co., 210 S.W. 713 (Tex.Civ.App.) 1919, n.w.h.; Meers v. Frick-Reid Supply Corporation, 127 S.W.2d 493 (Tex.Civ.App.) 1939, writ dism., judg.corr.; Ridglea Interests, Inc. v. General Lumber Company, 343 S.W.2d 490 (Tex.Civ.App.) 1961, writ ref., n.r.e.; Clevenger v. Potlatch Forests Inc., 85 Idaho 193, 377 P.2d 794, 799, 1963.
(3) That which constitutes a reasonable time is a question of fact or, at least, a mixed question of law and fact and depends upon the circumstances surrounding the case which the principle is sought to be applied. What would be a reasonable time in one case might be wholly inadequate to shut off the rights of parties in a different case or under different circumstances. Meers v. Frick-Reid Supply Corporation, supra; Houston & T. C. R. Co. v. Roberts, 101 Tex. 418, 108 S.W. 808; Armstrong v. Federal Supply Co., 17 S.W.2d 170 (Tex.Civ.App.) 1929, n.w.h.; Simmons v. Western Indemnity Co., supra; Allstate Insurance Company v. Darter, 361 S.W.2d254 (Tex.Civ.App.) 1962, n.w.h.; International Underwriters Insurance Company of America v. Sherwood, supra.

The trial court submitted the following issue to the jury:

“Do you find from a preponderance of the evidence that the plaintiff gave written notice of claim within a reasonable time after the expiration of twenty days after the occurrence of loss, if any?”

In connection with that issue, the court instructed the jury that the term “within a reasonable time”, as that term was used, meant that time in which a person of ordinary prudence acting under the same or similar circumstances, would have or should have given notice. The jury answered the issue yes.

In this case the policy as well as Art. 3.70-3(A)(5) Insurance Code V.A.T.S. provides written notice of claim must be given to the insurer within twenty days after the occurrence or commencement of any loss covered by the policy. Appellee continued to work as instructed by his doctors to do at his same job and doing the same work as he was doing before the accident and making the same income. Consequently, there was no loss until he was finally stopped by order of the doctor in February, 1966. Appellee testified it was about February 15, 1966, when he realized his condition. Written notice was mailed to appellant on March 14, 1966. The delay in filing for workmen’s compensation by this same appellee is discussed in King v. Texas Employers’ Insurance Association, Tex.Civ.App., 416 S.W.2d 533 n.r.e.

It is stated in Continental American Life Insurance Company v. McCain, Tex.Civ.App., 412 S.W.2d 666 as follows:

“(1) Plaintiff admits no written notice was given defendant within 20 days after he was injured at its Houston office, but plaintiff contends this provision in the policy is void because of Article 5546, Vernon’s Ann.Civ.St., which reads in part as follows:
“No stipulation in a contract requiring notice to be given of a claim for damages as a condition precedent to the right to sue thereon shall ever be valid unless such stipulation is reasonable. Any such stipulation fixing the time within which such notice shall be given at a less period than ninety (90) days shall be void, and when any such notice is required, the same may be given to the nearest or to any other convenient local agent of the company requiring the same.”
Plaintiff also contends that he acted as a reasonable prudent person, and that this is all he was required to do in order to comply with that part of the policy quoted in this opinion, which specifically reads as follows:
“ * * * Failure to furnish notice or proof within the time fixed in this Policy will not invalidate or reduce any claim if it shall be shown that it was not reasonably possible to furnish such notice or proof on time and that it was furnished as soon as was reasonably possible.”
The court submitted special issue No. 1, which reads as follows:
“Do you find from a preponderance of the evidence that the plaintiff Jessie McCain acted as a reasonably prudent person under the same or similar circumstances would have acted, with reference to the furnishing of notice and proof of loss to the defendant?
“Answer ‘yes’ or ‘no’
“Answer: Yes”
We interpret this policy of insurance to require a claimant to exercise reasonable diligence in filing a notice of injury and claim. The finding of the jury satisfied this requirement. These points are overruled.”

That holding was approved by the Supreme Court in the same case at 416 S.W.2d 796. See also McCormick & Ray, Texas Law of Evidence, Page 595, Sec. 799, Texas Employers’ Insurance Association v. Little, Tex.Civ.App., 96 S.W.2d 677 writ dismissed. We overrule appellant’s first six assignments of error.

By appellant’s points of error 7 through 21, it is contended that it was necessary for the appellee to establish that he sustained bodily injury by accident; that as the result of such injury he was totally and permanently disabled and prevented from enjoying in each and every occupation or employment his compensation or profit for which he was reasonably qualified by reason of his education, training and experience ; that total and permanent disability commenced within 365 days of the date of the accident; that such disability has continued for a period of 12 consecutive months from date of its commencement and that at the end of such twelve months period such disability was total, continuous and permanent ; and that appellee failed to sustain this burden. The jury answered those issues favorable to appellee and contrary to the contention of appellant and we hold such findings were based upon sufficient evidence. Beside the evidence above mentioned, Dr. Falkenstein testified it was his opinion that appellee sustained an injury to his heart on or about December 10, 1964 and that he sustained an occlusion of one of the blood vessels supplying the heart with blood. Dr. Falkenstein further testified as follows:

“Q. Do you think he is totally disabled within that definition and with that admonition about what his qualifications—
A. (Interrupting) His qualifications, yes, he is totally disabled.
Q. Now, Doctor, go ahead and explain what you wanted to explain.
A. I wanted to say that he is totally disabled, in my opinion, as a truck driver.
Q. And why, please?
⅜ sfc sfr ⅝ ⅜
A. Oh, I see. The person who has sustained the coronary occlusion or myocardial infarction, should refrain and must refrain from strenuous activities; must refrain from being put into situations where he might have to use strenuous actions, muscle power, in order to handle the situation.
⅜ ⅜ ⅜ ⅜ ⅜: ⅜
“Q. Would you pass this man for a pre-employment physical as a truck driver?
A. No, I would not.
Q. And why not?
A. Because a person with evidence of a coronary occlusion is not a safe person to be in charge of heavy duty equipment.
Q. Now, Doctor, I want to ask another question, based on an assumption of the truth of those same facts, and that question is do you have an opinion as to whether the injury that you have described was the sole cause of the disability that you have described, and I want, in that connection, for you to assume that the term ‘sole cause’ means that cause which directly and independently of all other causes, results in disability. Now, do you have an opinion about that, please?
A. The coronary occlusion is the cause of his disability, period.
Q. Now, Doctor, I want you to assume the same facts and ask you if you have an opinion as to whether or not Richard King’s disability has continued for a period of 12 months since December 10th, 1964, just on the assumption of the truth of the facts that I gave you?
A. Well, I don’t think his disability has ever ceased.
Q. All right. Now, do you have an opinion, then, as to whether or not his disability began within 365 days following December 10th, 1964?
A. The disability began the night he was driving the truck and suffered the coronary occlusion.
Q. Now, do you have an opinion as to whether or not this total disability will be permanent from and after the end of 12 month period? In that connection, I want you to assume that permanent means ‘continuing throughout the remainder of one’s life.’
A. The disability will continue. He has had a coronary occlusion, and it is still evident in the electrocardiogram, and we will find this ten years and more from now, giving evidence in the electrocardiogram also.”

Dr. Ashby testified that based upon the history he acquired as to the events of the night when appellee was out with the truck and in the mud, it was his opinion those events definitely were a precipitating factor causing the heart trouble and that it was his opinion the injury to the heart muscles occurred on Thursday night when appellee was working with his truck on the muddy road.

The appellee’s occupation was that of a truck driver which he had followed for several years and a heart injury is a serious condition. Total disability is necessarily a relative matter and must depend chiefly on the peculiar circumstances of each case and on the nature of the occupation or employment and the capabilities of the person injured. It does not mean absolute physical disability of the insured to transact any kind of business pertaining to his occupation but exists if he is unable to do any substantial portion of the work connected therewith. Jefferson Standard Life Insurance v. Curfman, Tex.Civ.App., 127 S.W.2d 567, writ dismissed; John Hancock Mutual Life Insurance Company v. Cooper, Tex.Civ.App., 386 S.W.2d 208, no writ history; Kemper v. Police & Firemens Insurance Association, 44 S.W.2d 978, Commission of Appeals.

It is stated in Prudential Life Insurance Company of America v. Tate, 162 Tex. 369, 347 S.W.2d 556, as follows:

“The language of the policy is fairly and justly susceptible of the interpretation, which, we think, should be given to it, that the larger (total) indemnity was promised if the injuries rendered the insured substantially unable, in the exercise of ordinary care, to perform every material duty pertaining to his occupation. Fidelity & Casualty Co. [of New York] v. Getzendanner, 93 Tex. 487, 53 S.W. 838, 55 S.W. 179, 56 S.W. 326; Fidelity & Casualty Co. v. Joiner (Tex.Civ.App.) 178 S.W. [806,] 808 (W. of E. ref.); North American Accident Ins. Co. v. Miller (Tex.Civ.App.) 193 S.W. 755 (W. of E. ref.); 14 R.C.L. 1316; 5 Joyce on Insurance (2d Ed.) § 3032(c); Foglesong v. Modern Brotherhood of America, 121 Mo.App. 548, 97 S.W. 240; Lobdill v. Laboring Men’s Mutual Aid Ass’n, 69 Minn. 14, 71 N.W. 696, 38 L.R.A. 537, 65 Am.St.Rep. 542. * * *”

We overrule appellant’s points of error 7 through 21. We have carefully considered all of appellant’s assignments of error and overrule all of them. Judgment of the trial court is affirmed.


author: CLAYTON, Justice.

text:
    Leonard S. LEVITT et ux., Appellants, v. CITY OF EL PASO, Appellee.
    No. 5916.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 6, 1967.
    Rehearing Denied Jan. 10, 1968.

      Rey & Rey, El Paso, for appellants.
    Travis White, City Atty., Wade Atkins, Asst. City Atty., El Paso, for appellee.
   OPINION

CLAYTON, Justice.

This is a personal injury suit filed by Leonard S. Levitt, individually and as next friend of his wife, Barbara Levitt, appellants here, for damages for personal injuries of the wife who caught her heel in a sidewalk in the City of El Paso, Texas, causing her to fall to the sidewalk. The petition alleged negligence on the part of the City, appellee here, in not repairing the condition of the sidewalk, which condition it knew or should have known had existed for some time. The City answered by general denial, absence of negligence on the part of the City, and negligence on the part of the wife in failing to keep a proper lookout, and open and obvious and unavoidable accident. Trial was to a jury, but at the termination of plaintiffs’ testimony, upon motion of the City, an instructed verdict was rendered in favor of the City and judgment for defendant, based on such verdict, was entered.

Appellants present a sole point of error, directed at the instructed verdict and judgment thereon on the basis that the City had no duty to repair the defect complained of by plaintiffs and no evidence showing negligence on the part of the City.

We affirm this judgment.

Appellants present two citations: City of Houston v. Watson, 376 S.W.2d 23 (Tex.Civ.App., 1964; ref., n. r. e.), in which he stated it was held that:

“ * * * under evidence the City was under duty to use ordinary care and to make reasonable inspection which would have disclosed disintegration of temporary asphalt repairs and a dangerous situation could have been remedied prior to the accident.
“To render a city liable for injuries resulting from defect in street, the City must have actual or constructive notice of defect. City with knowledge of hole in street had a duty to repair it if it was deep enough to endanger the safety of those using street.
“The Appellant would show the Court that there was sufficient evidence to show that the defects were not minor or trivial in nature, but that it was a dangerous condition existing, and said condition was known to the Appellee and its agents.”

The City replies:

“In the Watson case a boy riding a motor scooter was thrown when he hit a hole in the vehicular driveway. The hole was ‘variously estimated to be a depth approximately 3 inches to 6 to 8 inches, and width ranging from 3 to 5 feet across the street and from í\/¿ to several feet parallel thereto.’ (376 S.W.2d 27, near top of right column.) The hole was reported to the City about two months before the accident, and the City did a temporary, emergency repair job, using cold asphalt mix. The paving was concrete and the City knew that the cold mix would not stand up; the intent was to notify the ‘permanent paving division’ so that it could follow with the necessary concrete repair work. (P. 27, paragraph in middle of right column.) The temporary repair ‘broke down, washed out and disintegrated,’ so that the hole was again in about the same condition as when the temporary repair was made. (P. 28, first paragraph beginning on left column.) This was reported to the City about a week before the accident (P. 28, second paragraph beginning on left column) but still the repairs were not made. There is no similarity between our case and this Houston case, in which there was evidence that the hole was as much as 8 inches deep, ‘several’ feet wide, and 5 feet long, and in the path of a motor scooter.”

In the instant case the injured wife testified to the following with reference to the hole in which she caught her heel:

“Q I believe you told us before that it was just a heel size, about an inch in diameter ?
A A little more. What did I say, a quarter or a fifty cent piece, something like that.
Q You said about the size of a quarter?
A Something like that.
Q And it was about a half inch to an inch deep, just enough to catch your heel or something like that?
A That’s right.”

The second case cited by appellants was City of San Antonio v. Chabot, 318 S.W.2d 485, 486, 487 (Tex.Civ.App., 1958; ref., n. r. e.). There, the facts were:

“ * * * The sidewalk on which plaintiff was walking was built in slabs with expansion joints. As plaintiff walked south she approached the hole which was on her side of an expansion joint. The concrete had disintegrated and crumbled out, forming a triangular shaped hole. The apex of the triangle was toward the plaintiff. A photograph with a ruler beside the hole shows that the distance from the apex to the base was about six inches. Near the apex, the triangle was about one inch wide, and at the base it was about four inches wide. Even when all the dirt was cleaned from the hole, it was less than one inch deep at its deepest point.”
“ * * * Actual measurements showed that the hole was fifteen-sixteenths of an inch deep when the dirt was cleaned from the hole. Plaintiff testified that the hole was filled with loose dust and debris when she fell. The area around the hole was cracked in a jigsaw fashion.”
* * ⅜ * * *
“ * * * She testified: T mean my heel went down in the hole and apparently fitted into it enough to stay there until I was thrown with such violence that it pulled out.’ ”

Neither of the cited cases compare with the case before us on the triviality of the facts. In the Chabot case the trial court gave a judgment for the plaintiff, based on a jury verdict. The Court of Civil Appeals reversed -and rendered judgment for the City, saying:

“A municipality is required to exercise ordinary care in constructing reasonably safe sidewalks and streets and in maintaining them. * * * In applying the rule courts must first determine whether or not, as a matter of law, a defect is so trivial as to impose no duty upon a city. If the court determines the defect is not so trivial, there remains a jury question on the issue of the city’s negligence. In both instances the basic problem is the same, whether the city exercised ordinary care, but in the one, the court determines the problem as a matter of law; in the other, the court leaves the decision to the jury. Our problem is whether the instant defect was so trivial that it ought to have been decided as a matter of law.”
⅝ s(s ⅝ ⅜ ⅜ ;ji
“ * * * Texas does not impose a duty upon a municipality to repair every defect, nor trivial defects in streets and sidewalks, for such a duty would impose onerous burdens upon cities with thousands of miles of such improvements. * * *
“While a defect is not necessarily trivial because it is small, nevertheless, the size of the defect is perhaps the most important element, and in this case it was small. Plaintiff urges that there is a difference between an elevation and a hole in which one’s foot is ‘caught.’ But whether a foot is ‘caught’ is often itself a matter of degree. Most people who stumble over an elevation or in a depression do so because a foot is momentarily stayed or ‘caught’, resulting in an imbalance. * * *
“It is common knowledge that sidewalks contain minor defects and also that the weather and elements cause slabs to shift, expand and contract. It is for that reason that concrete is laid in slabs. Such movements caused by the seasons, the weather and the soil make holes and crevices which vary in size. Sizes of shoes and heels vary, as do the sizes of small openings on sidewalks. Small holes and depressions ordinarily exist on all heavily traveled sidewalks and streets. Somewhere in most cities there is a hole that will just fit the heel of every shoe, whether it be a spike or a boot heel. We refuse to write a rule which will lay liable a municipality because its streets or sidewalks somewhere contain a depression less than one inch deep, which somebody’s shoe heel will fit. In our opinion, there was no duty upon the City to repair such minor defects.”

In addition to the appellee’s claimed triviality of the defect in the sidewalk in the present case, appellee also points out the absence of any evidence of actual or constructive notice to the City of the existence of such defect. We are cited to the recent case of Hutson v. City of Houston, 418 S. W.2d 911 (Tex.Civ.App., 1967; Ref. N. R. E.), which holds on page 914:

“ * * * There is no showing as to the length of time the condition existed or might have existed. There is no showing as to who or what caused or might have caused the condition. There is no testimony of any previous incidents or accidents at the location of the street and no evidence to indicate that the City had been informed in any way or had any knowledge whatsoever of the condition. The only testimony on this subject was contained in the answer to an interrogatory which was to the effect that the condition on the street was ‘good as far as known to the defendant’ and that the defendant had no knowledge of the street being under repair at the time.
“The record is likewise devoid of any testimony that would impute implied or constructive notice to the defendant. The record is silent on how long the condition existed or might have existed and there is no indication in the record that those charged with the supervision and superintendence of the street could, by the exercise of reasonable care and diligence, have known of the defective condition. 40 Tex.Jur.2d pp. 328-331, §§ 639, 640.
“As the plaintiff did not meet the fundamental burden of proof, the directed verdict as requested by the defendant in his motion after plaintiff rested, was proper.”

From the foregoing discussion and authorities we have come to the above-stated conclusion that the judgment of the trial court was proper and justified and we accordingly affirm the same.

Affirmed.


author: O’QUINN, Justice.

text:
    Robert D. MANNING et al., Appellants, v. The STATE of Texas, Appellee.
    No. 11546.
    Court of Civil Appeals of Texas. Austin.
    Dec. 13, 1967.
    Rehearing Denied Jan. 24, 1968.

      Carl Raymond Crites, San Antonio, Kuy-kendall & Kuykendall, Austin, for appellants.
    Crawford C. Martin, Atty. Gen., George M. Cowden, A. J. Carubbi, Jr., Staff Legal Asst. Attys. Gen., Sam Kelley, Larry Crad-dock and Ralph R. Rash, Asst. Attys. Gen., Austin, for appellee.
   O’QUINN, Justice.

The Attorney General of Texas brought this suit in March, 1965, in the name of the State and at the instance of the Commissioner of Insurance, the Secretary of State, and the Comptroller of Public Accounts, to oust an insurance operation conducted by appellants in the name of a foreign corporation, and for receivership and injunction.

The petition presented a case in the nature of a quo warranto against American Travelers Insurance Company, Ltd., Robert D. Manning and David McConnell of Travis County and Willis Burge of Dallas County.

The trial court granted a temporary restraining order and appointed a temporary receiver the day suit was filed, March 16. On March 26 the trial court continued in force the terms of the order and receivership, with modifications. This action was taken with agreement of appellants Manning and McConnell, and of Burge, who has not appealed. The corporation made no appearance.

The case was heard on its merits April 29 and 30, 1965. Judgment was entered nearly two years later, on March 21, 1967.

Manning and McConnell have appealed from final judgment, assigning eight and eleven points of error, respectively.

We overrule all points of error and affirm the judgment of the trial court.

The Attorney General in filing suit alleged that Manning and McConnell were engaged in the insurance business, in the name of American Travelers Insurance Company, Ltd., without a certificate of authority from the State of Texas. The petition further alleged that Manning, McConnell, and Burge, acting together and severally, were using the corporate fiction to perpetrate a fraud and evade the laws of Texas. The Attorney General asserted that Manning, McConnell and Burge had rendered themselves individually and personally liable for their acts performed in the name of the corporation, including evasion of fees, taxes, penalties and forfeitures due the State.

The prayer was for injunction to restrain the illegal operations of Manning, McConnell and Burge, and for receivership of records, properties and bank accounts of the corporation. The suit also sought statutory penalties and taxes, jointly and severally, against the company, Manning, McConnell and Burge.

The American Travelers Insurance Company, Ltd., had been organized under the laws of the island of New Providence, in Nassau, Bahamas. Robert D. Manning was president of the corporation, with Frederick Gerding as its vice president and Mrs. A. R. Manning its secretary-treasurer. Its charter appears to have authorized the corporation to deal in gold bullion, conduct salvage operations, to act as promoter, manufacturer, or trader, and to engage in numerous other activities related to stocks, bonds, debentures, property, securities, and safe deposits, as well as insurance.

In the latter part of 1964 the corporation, with Manning acting for it, made contracts with McConnell and with Burge, under which insurance would be written in the name of the corporation but all claims would be paid by these agents.

Under his contract, McConnell kept seven-eighths (87½ percent) of all premiums collected. He obligated himself to pay all claims and judgments arising “from contracts solicited in the name” of American Travelers. McConnell agreed to “set up a reserve account” in a bank of his choice “of at least 50% of all premiums received by” him. McConnell sent all other monies to Manning in Austin. McConnell solicited and received applications from other agents for insurance with American Travelers.

Policy forms were furnished McConnell by Manning, in lots of fifty, already signed by Manning for American Travelers Insurance Company, Ltd. An office was maintained for American Travelers in the Brown Building in Austin, and a telephone in the corporation name was installed. Cancellation of policies was effected by Manning and McConnell acting together. McConnell testified he paid claims against American Travelers.

The record shows that neither Manning, McConnell, nor Burge had certificates of authority to engage in the insurance business in Texas as insurers in the name of American Travelers Insurance Company, Ltd. American Travelers did not hold a certificate of authority in Texas through either the Secretary of State or the State Board of Insurance.

Manning was a witness at the trial. When asked whether he was “familiar with the American Travelers Insurance Company, Limited,” and if he knew “what it is,” Manning replied, “Yes, sir.”

The next question and Manning’s answer were:

“Q Now tell the Court, if you can, please, sir, who organized the company.
“A Sir, I claim protection under the Fifth Amendment of the Constitution of the United States and under the Constitution of the State of Texas, and respectfully refuse to answer on the grounds that the answer may tend to incriminate me.”

When asked whether he had served as president of the corporation, Manning again invoked protection under the Fifth Amendment. In some 12 pages of testimony Manning refused 17 times to answer questions on the ground that his answer might tend to incriminate him. The last question Manning refused to answer was an inquiry as to whether he knew “the name of the lawyer who prepared the charter for the American Travelers Insurance Company, Limited.” His reply was, “I will invoke the Fifth Amendment.”

In this appeal the appellants are Manning and McConnell. The trial court rendered judgment against the American Travelers Insurance Company, Ltd., Robert D. Manning and David McConnell, jointly and severally, in the amount of $5,700 as penalty “for writing casualty insurance and for engaging in the casualty insurance business as a carrier without a certificate of authority.” Similarly, judgment in the amount of $100 was rendered against Willis Burge, Manning, and the corporation. Neither Burge nor the corporation has appealed.

The trial court entered judgment against McConnell in the sum of $436.29 for taxes and penalty, plus interest, growing out of his failure to account to the State for taxes from funds held by him in the name of the corporation.

The court appointed a permanent receiver for all property of the corporation, with authority to wind up its affairs, and permanently enjoined the corporation, Manning, McConnell, and Burge from operating any insurance business as a carrier without first obtaining a certificate of authority.

The points of error under which McConnell and Manning attack the judgment of the trial court will be considered generally in the order McConnell presents his eleven assignments. Manning presents eight points, all of which are also found under McConnell’s contentions, and all points will be considered together.

McConnell, by point of error one, and Manning, by point five, contend that the trial court was without authority to appoint a receiver of American Travelers Insurance Company, Ltd., because the corporation was not domiciled in Texas and there was no evidence the company was insolvent.

These points are not tenable and must be overruled. American Travelers is not an appellant in this cause, and McConnell and Manning are not entitled to appellate review of a final judgment against the corporation, as they have no justiciable interest. United States v. Ray Thomas Gravel Co., 380 S.W.2d 576 (Tex.1964); 3 Tex.Jur.2d, Appeal and Error—Civil, sec. 196, pp. 468-9.

Even if McConnell and Manning could establish an interest in the judgment against American Travelers, we do not understand the law to be that a court may not appoint a receiver, with instructions to impound the property of a foreign corporation within this State, without a showing that the corporation is insolvent or is in imminent danger of insolvency. 49 Tex.Jur.2d, Receivers, sec. 61, pp. 82-85.

The State sued to stop an unlawful insurance operation and alleged its cause in detail. The State alleged equitable grounds of mismanagement, fraud and evasion of taxes, as well as a studied and complete defiance of corporation, insurance, and tax laws of Texas.

At the trial it was shown that the entire receipts collected by McConnell from the sale of insurance in the name of American Travelers were divided between McConnell and Manning. No premiums were sent to the company in Nassau. No applications were sent to the company for approval. Money collected in this operation was placed in the bank accounts of McConnell and Manning. The premium receipts, taxes and other charges collected by McConnell on this business were placed by him in the accounts involved in this lawsuit. Manning at first placed his part of the receipts, which was one-eighth (121/⅞ percent), in an American Travelers account, from which the money was soon transferred to his personal account. No funds remained in the company name. McConnell claims he owns the accounts. Under this contention, nothing would be available by which the company could pay liabilities under policies issued, or pay taxes due the State. McConnell collected money for the taxes but never paid taxes to the State.

Under the plan McConnell and Manning followed, McConnell allowed and paid agents’ commissions, made refunds, can-celled policies, decided what risks to take, and what claims to pay. Every aspect of the insurance business in the name of American Travelers Insurance Company, Ltd., was conducted in Texas by McConnell, and nothing was referred to Nassau. McConnell was in fact the insurer, operating the business in concert with Manning, who, like McConnell, kept his part of the premium receipts for his own personal use.

We think the State clearly alleged and convincingly proved that the operation McConnell and Manning carried on was a strategem and circumvention to evade the laws of this State and to practice a fraud.

The trial court, having before it a cause of action stated and proved in the nature of quo warranto to oust an illegal insurance scheme, could in its discretion appoint a receiver auxiliary to the suit that constituted the independent cause. Greenland v. Pryor, 360 S.W.2d 423 (Tex.Civ. App., San Antonio, no writ); Parker v. American Sulphur and Fertilizer Co., 3 S.W.2d 124 (Tex.Civ.App., Waco, no writ). Under the facts and circumstances presented in this case, it is our opinion that the trial court did not abuse its discretion in appointing the receiver, and we decline to disturb this action by the court. Jones v. Springer, 256 S.W.2d 1016 (Tex.Civ.App., Amarillo, no writ); San Angelo Hilton Hotel Co. v. B. B. Hail Building Corporation, 60 S.W.2d 1049 (Tex.Civ.App., Austin, no writ).

McConnell contends under points of error two, three and four that there was no evidence and insufficient evidence that funds in the Trinity National Bank of Dallas belonged to American Travelers Insurance Company, Ltd., and that the trial court erred in holding that the funds did not belong to McConnell.

The accounts in Trinity National Bank •were named in the order of the trial court, dated April 6, 1965, by which temporary injunction was imposed and a temporary receiver was appointed. McConnell and Manning both agreed to this order.

We do not find that ownership of these accounts was made an issue in the pleadings, nor was ownership adjudicated in the final judgment upon which this appeal is predicated. It would appear that to establish title to any funds, accounts, or property in the hands of the receiver, McConnell should assert his claim in an action other than the one now on appeal.

This suit was instituted by the State to oust an illicit insurance operation and to place the operation and its assets in receivership, as well as to collect taxes due the State and hold the operators for statutory penalties. If the receiver is holding property belonging to McConnell, the claim must be presented in another lawsuit. It is not an issue in this case.

We overrule McConnell's points of error two, three and four.

McConnell under three points of error (five, six and seven) and Manning under two points (six and seven) contend in effect that an unauthorized insurance carrier can do business in Texas under Article 21.38 of the Insurance Code, V.A.T.S. without a certificate of authority, and that the business carried on by McConnell and Manning came within the terms of this statute.

The purpose of Article 21.38, as expressed in the statute itself, “is to regulate the placing of policies or contracts, effecting direct insurance, with certain non-authorized insurers, and to subject certain unauthorized insurers to the jurisdiction of courts of this State * * * ” (Article 21.38 was repealed by the Legislature, effective May 12, 1967, by Acts 1967, 60th Leg., ch. 185, secs. 2,4, p. 400, and unauthorized insurance is now regulated under Article 1.14 — 1 and 2, Insurance Code, effective with repeal of Article 21.38).

Article 21.38, as enacted in 1951,. was based on Article 5068e, Vernon’s Ann.Civ. Sts., without substantive change. (Acts 1949, 51st Leg., ch. 617, p. 1355; Acts 1951, 52nd Leg., ch. 491; amended Acts 1957, 55th Leg., ch. 395, p. 1180). The Legislature in section 1 of Article 21.38 expressly declared its intent to provide “a regulation as to the placing of such direct lines of insurance in such unauthorized companies.”

We believe that under the statute the Legislature intended that certain qualified agents were authorized to act as a broker or agent for residents of this State to secure coverage from unauthorized insurers. We do not understand the statute to permit agents or brokers to become insurers themselves or to act as agent of the unauthorized insurer requested to supply the coverage.

Section 3 of Article 21.38 specifies acts not permitted and permissible acts of agents. The section reads as follows:

“Nothing contained in this article shall authorize any person, firm, association, or corporation to guarantee or otherwise validate or secure the performance or legality of any agreement, instrument or policy of insurance of any insurer not licensed to do business in Texas, nor to permit or authorize any nonlicensed insurer to do any insurance business by or through any person or agent acting within this State; but agents licensed hereunder acting pursuant to this article may issue and deliver to their clients, the insured, binders, policies and other confirmation of direct insurance so lawfully placed, and shall not be personally liable to the holder of any policy of insurance so issued or delivered for any loss covered by same.” (Emphasis added.)

McConnell’s contract with American Travelers Insurance Company, Ltd., with respect to liability under the policies, provided the following:

“It is hereby agreed that any policy or policies written by [McConnell] * * * and/or any of [McConnell’s] * * * subsidiaries that they will be liable for any and all liability under said policy and that the [American Travelers Insurance Company, Ltd.] * * * nor any of its officers, directors, or heirs will be liable for any said liability under contracts solicited by [McConnell] * * * It is further agreed that [McConnell] * * * will set up a reserve account in the bank of [his] * * * choice of at least 50% of all premiums received by [McConnell] * * * for the payment of claims which arise from contracts solicited by [McConnell] * * * or [his] * * * subsidiaries, and from this account it is further agreed that [McConnell] * * * will pay all claims, judgments, or legal costs which may arise from contracts solicited in the name of the [American Travelers Insurance Company, Ltd.]. * ⅜ * »

The evidence shows that except for the money sent Manning (12% percent of the premiums), McConnell retained all premium money. No applications for insurance were submitted to American Travelers. McConnell did not negotiate with American Travelers in behalf of any policyholder. No claims under the policies were submitted to American Travelers. All applications were approved by McConnell and he paid the claims, without consultation with American Travelers. Although McConnell collected premiums in the name of American Travelers, the money never left his control, and he signed checks and paid claims out of these funds.

The five percent tax which McConnell collected on the business he wrote in the name of American Travelers was placed in McConnell’s “All Risks Auto Insurance Brokers Account.” Although Article 21.38 requires that taxes collected must be remitted to the State within thirty days after January 1, the taxes McConnell collected were still in his possession when this lawsuit was filed on March 16, 1965.

The acts performed by McConnell and Manning were functions normally carried on by an insurer. There was nothing we can find in the record to show that either McConnell or Manning acted as broker or excess agent on behalf of residents of this State seeking insurance to be written and guaranteed by a non-admitted insurance company. McConnell and Manning in effect placed American Travelers in the State of Texas, and they were the company itself for all practical purposes.

McConnell relies upon Board of Insurance Commissioners v. Kansas City Title Insurance Company, 217 S.W.2d 695 (Tex.Civ.App., Austin, writ ref., n. r. e.) under the contention that McConnell’s contract with American Travelers “was one of indemnity,” and that the contract “does not in any manner lessen the liability of American Travelers. * * * ”

In that case this Court construed a contract between one Hexter and the Kansas City Title Insurance Company to be “ * * one of agency and the fact that it provides for reimbursement to the Title Company from Hexter for loss is indemnity for the failure of the agent to be diligent and careful in the exercise of the authority conferred by the contract, and, as such, is a legal consideration therefor.” (217 S.W.2d 695, 697, col. 2)

If McConnell insists he was an agent for American Travelers, under authority of the Kansas City Title case, supra, he admits to violation of Article 21.38, the statute he invokes. The rule of the Kansas City Title case will not aid McConnell in the role of broker for insured persons under Article 21.38.

Hexter contracted to indemnify Kansas City Title, but this Court recognized that the Title Company had not by this contract relieved itself of liability to the policyholder, and that the public was buying insurance from the Title Company and not from Hexter. (217 S.W.2d 695, 698, col. 1)

The McConnell contract purported to relieve American Travelers of all responsibility. McConnell assumed all liability to the policyholder. This was not a contract of indemnity. It was a means by which McConnell could solicit insurance in the name of American Travelers, use its forms, and keep all money collected except the 12½ percent paid to Manning. McConnell could use the name American Travelers, but in all other respects McConnell was the insurer. Whatever the designation of the relationship between McConnell and American Travelers, we conclude that McConnell and Manning in fact acted as partners to conduct an insurance business in the name of American Travelers Insurance Company, Ltd. The business they conducted was that of insurers acting without certificate of authority from the State of Texas.

McConnell (under points eight and nine) and Manning (under points one, two, and eight) attack the trial court’s judgment in assessing penalties against them under Article 8.18, par. C, of the Business Corporation Act, V.A.T.S., and Article 8.16 of the Insurance Code.

We consider it settled law in this State that where a corporation is used by individuals in control of it as a mere dummy for their operations, the corporate veil may be pierced to effect justice and to hold the managers personally responsible. Five Star Transfer and Terminal Warehouse Corporation v. Flusche, 339 S.W.2d 384 (Tex.Civ.App., Texarkana, writ ref., n. r. e.); O’Neal v. Jones, 34 S.W.2d 689 (Tex.Civ. App., Dallas, no writ).

The State has invoked several statutes in pursuit of its cause in the nature of a quo warranto action. Under Articles 6253 and 6257, Vernon’s Ann.Civ.Sts., persons or associations of persons found to be acting as a corporation without being legally incorporated may be fined by the court. Article 8.16 of the Insurance Code provides penalty of $100 a day against companies writing casualty insurance without certificate of authority. Article 8.18, par. C, of the Business Corporation Act allows penalties of $100 to $5,000 a month for corporations doing business in this State without authority.

The trial court found suitable and proper the penalties assessed against McConnell and Manning. Trial was before the court, and no findings of fact were filed or requested. All issues of fact will be presumed to have been found in such way as to support the judgment. U. S. Truck Lines v. Texaco, Inc., 337 S.W.2d 497, (Tex.Civ.App., Eastland, writ ref.); Construction and General Labor Union, etc. v. Stephenson, 148 Tex. 434, 225 S.W.2d 958; 4 Tex. Jur.2d, Appeal and Error—Civil, sec. 806, p. 329 et seq.

We deem it unnecessary to discuss the facts further or to cite additional authority. To allow the doctrine of a corporate entity to intervene under the facts of this case to excuse or absolve the individuals would be to convert a court of justice into a gazing-stock. We are unwilling to disturb the penalties imposed upon McConnell and Manning by the trial court.

Under points ten and eleven McConnell contends that the trial court erred in entering judgment against him for taxes and interest, in violation of due process, and that the claim for taxes was not pleaded by the State.

We do not agree that the State failed to plead its claim for taxes. The joint and several liability of McConnell and Manning for taxes, growing out of their illicit operation, was pleaded repeatedly by the State. The State’s prayer specifies taxes and asks for general relief. No exception was leveled at the State’s plea for taxes, and if there was a defect in the pleadings, the defect has been waived. Rule 90, Texas Rules of Civil Procedure.

It is undisputed that McConnell collected $349.02 in premium taxes from policyholders and failed to pay the taxes to the State. Payment was delinquent when suit was filed. No objection was made by McConnell or Manning to the introduction of the testimony offered to prove collection and retention of the taxes by McConnell. In fact, part of the testimony was elicited from McConnell himself, without objection.

In contending now that he should not be required by the court to deliver to the State the taxes collected by him from the policyholders, McConnell places himself in the untenable position of claiming he is entitled to keep the money because it was collected by him as an illegal tax. If there is any controversy with respect to legality of the tax, McConnell certainly has no justi-ciable interest in the dispute. McConnell does not stand in the place of the taxpayer. 44 Tex.Jur.2d, Parties, sec. 7, p. 145 et seq.

We do not find merit in these points of error and overrule them.

The judgment of the district court is affirmed.

Affirmed.