author: DUNAGAN, Chief Justice. SELLERS, Justice.

text:
    TYLER MIRROR & GLASS COMPANY et al., Appellants, v. Ollle SIMPKINS et ux., Appellees.
    No. 220.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 13, 1966.
    Rehearing Denied Nov. 10,1966.

      Ramey, Brelsford, Flock & Devereux, Mike Hatched, Donald Carroll, Tyler, for appellants.
    Howard S. Smith, Smith, Johnson & McDowell, Sulphur Springs, Woodrow H. Edwards, Mount Vernon, for appellees.
   DUNAGAN, Chief Justice.

Ollie Simpkins and his wife, Zodie, brought this suit against Tyler Mirror & Glass Company and its employee, Alan Mauldin, for damages allegedly sustained by Zodie Simpkins when she was struck by a truck driven by defendant Mauldin. Several acts of negligence on the part of defendant Mauldin were alleged to be the proximate cause of various injuries sustained by Zodie Simpkins on the date in question. Plaintiffs sought damages against defendant Mauldin individually and from Tyler Mirror & Glass Company under the doctrine of respondeat superior.

The case was tried to a jury which found the primary negligence issues against the defendants and found contributory negligence and all other issues for the plaintiffs. On the basis of these answers and the jury findings of damages, the trial court awarded damages to plaintiffs in the sum of $17,514.00.

Appellants do not raise any issue on this appeal as to their liability, but predicate their appeal solely upon errors relating to the court’s charge regarding damages.

The trial court’s charge contained the standard type charge on damages which reads as follows:

“SPECIAL ISSUE NO. 7
“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will fairly and reasonably compensate plaintiffs for the damages, if any, suffered by them from the injuries, if any, of Zodie Simpkins directly and proximately caused by the incident on August 14, 1963 ?
“Answer in dollars and cents, if any.
“ANSWER: $14,778.00
“In fixing the above amount of damages, if any, you will consider the following things and no other:
“(1) The reasonable value of loss of capacity, if any, of Zodie Simpkins to perform her household duties in the past and the reasonable value of the loss of capacity, if any, which Zodie Simpkins will in reasonable probability suffer in the future to perform her household duties by reason of the incident on August 14, 1963;
“(2) Fair and reasonable compensation for the loss of earnings, if any, suffered by Zodie Simpkins from August 14, 1963 to date;
“(3) The reasonable present cash value of such loss, if any, of earning capacity she will in reasonable probability sustain in the future;
“(4) The physical pain, if any, and the mental anguish, if any, which Zodie Simpkins has suffered from August 14, 1963 to date; and
“(5) The physical pain, if any, and the mental anguish, if any, which Zodie Simpkins will in reasonable probability suffer in the future.”

Feeling that there was no evidence connecting many of the physical conditions in evidence with the accident in question, appellants timely requested in writing the following exclusionary instructions in connection with the above damage issue, all of which were refused by the trial judge:

Instruction No. 1:
“You are instructed, however, that in arriving at your answer to the above and foregoing Special Issue you must not take into consideration or allow anything for the cataract of the right eye.”
Instruction No. 2:
“You are instructed, however, that in arriving at your answer to the above and foregoing Special Issue you must not take into consideration or allow anything for high blood pressure.”
Instruction No. 3:
“You are instructed, however, that in arriving at your answer to the above and foregoing Special Issue you must not take into consideration or allow anything for gall bladder trouble.”
Instruction No. 4 :
“You are instructed, however, that in arriving at your answer to the above and foregoing Special Issue you must not take into consideration or allow anything for colon trouble.”

The jury returned the verdict finding damages as follows: (1) $14,778.00 for the damages sustained by Mrs. Simpkins in the collision, and (2) $1,400.00 for further hospital, medical and drug expenses in response to Special Issue No. 9.

Neither pleadings nor proof by either party attempted to make the case one in which the accident aggravated a pre-exist-ing condition or infirmity.

We will set forth a summary of the pertinent testimony bearing on the question before this court.

The injuries alleged to have been sustained by Zodie Simpkins were “a concussion and lacerations across the right side of her head; injuries to her right eye which has resulted in the complete loss of sight of the same; her left arm was broken; chest injuries including fractures and injuries to her rib cage; shoulder injuries and cervical spinal injuries; as well as injuries and damage to her nerves and entire nervous system, and also numerous bruises and abrasions about her entire body.”

Essentially, appellants contend that four separate injuries or conditions — loss of eyesight, colon trouble, gall bladder trouble and/or high blood pressure — alluded to in the testimony of various witnesses were not shown by any evidence to be causally related" to the accident in question and should have been excluded from the jury’s consideration. Briefly, the evidence relating to these conditions is as follows:

Loss of Eyesight

Appellees specifically pleaded that Mrs. Simpkins lost the sight of her right eye as a result of the accident in question. As the evidence later developed, the specific contention was that the accident caused a traumatic cataract to form in her right eye, essentially blinding the eye to all except bright light.

Mrs. Simpkins herself testified that after the accident her right eye was “sticking out” and hurting, and that she told the doctors about this. She also testified that there was nothing wrong with her before the accident that she knew of and she was not aware that she did not have any vision in her right eye before the accident, but that she was not able to see out of her right eye after the accident. This is essentially all the testimony Mrs. Simpkins was able to give relating to her alleged loss of eyesight.

Testimony from the several doctors who treated Mrs. Simpkins in the hospital and after she was released did, in fact, confirm that she had a traumatic cataract in the right eye. But, this is all that the medical testimony reveals about the cataract. None of the doctors stated that within reasonable medical probability the traumatic cataract was, probably was, or even could have been caused as a result of the accident in question. In fact, the testimony from the doctors who treated Mrs. Simpkins immediately after her accident is to the effect that the traumatic cataract could not have been caused by the accident in question.

Dr. McCarthy, who examined Mrs. Simp-kins when she arrived at the emergency room at Medical Center Hospital in Tyler, Texas, (approximately 6:30 p. m. on the day of the accident) testified that upon his initial examination he noticed a traumatic cataract in the patient’s right eye, and that, at no time, from the date of his initial examination to the time she was discharged from the hospital, did Mrs. Simpkins complain about pain in the right eye or inform him of any recent change of vision in that eye. Nor did Dr. McCarthy administer any treatment to Mrs. Simpkins in regard to her right eye. There is testimony that the accident occurred at approximately 5:00 p. m.

Dr. Steph, who was called in by Dr. McCarthy to examine Mrs. Simpkins, confirmed that there was a traumatic cataract or opacification of the lens in her right eye, but he did not ever think it to be of recent origin.

All the medical testimony in the record indicates that a traumatic cataract is caused by some injury to the eye — either a blunt injury or a puncture injury, and that it takes weeks, months, or even a year for such a cataract to form from a blunt injury. There is no testimony as to how long it would take a traumatic cataract to form from a puncture injury, but this question would appear to be academic because Dr. Steph and Dr. McCarthy positively testified that there was no direct injury to or about Mrs. Simp-kins’ right eye when they examined her, nor any cut, bruise, scratch, laceration, contusion, abrasion or penetration of the area in and around the right eye.

Other Conditions

Dr. Lacey, appellees’ main medical witness, testified to discovering and treating Mrs. Simpkins for high blood pressure, colon trouble and gall bladder trouble. Dr. Lacey did not testify that these conditions were caused, could have been caused, or were the natural result of the accident in question. Appellants argue, therefore, that Dr. Lacey’s testimony in regard to colon trouble, gall bladder trouble, and high blood pressure stands for nothing more than the fact that appellee was suffering from these conditions after the accident.

Appellants point out that the existence of these conditions is important, however, because Dr. Lacey did testify that Mrs. Simpkins would not be able to perform housework or any gainful employment requiring stooping or lifting, because she was dizzy and not able to balance herself properly. The reason she suffered dizziness, according to Dr. Lacey, at times was because of her high blood pressure and, at times, because of the colon and gall bladder trouble. Dr. Lacey further testified that dizziness and loss of balance were not always simultaneously present and that loss of balance could be caused by Mrs. Simp-kins’ head injury. He could not, however, state that this was anything more than a possibility, because he was not a specialist and could not run proper tests to determine if this were true.

On this appeal the appellants first contend that “The trial court erred in refusing to include in the Court’s Charge appellants’ requested exclusionary instructions, because, without these instructions, the Charge permitted the jury to determine that plaintiff had sustained loss of eyesight, colon trouble, gall bladder trouble and/or high blood pressure as a result of the accident in question, when there was no evidence showing that any of these injuries were proximately caused by any negligence on the part of the defendant Mauldin” and seeks a reversal and remand of this case to the trial court for another trial.

Appellants say there is no evidence that loss of eyesight, colon and gall bladder trouble or high blood pressure were caused from the accident in question. The basis of appellants’ argument in support of their contention is that there is no evidence in the record to establish that loss of eyesight, colon and gall bladder trouble, or high blood pressure complained of by Mrs. Simpkins were caused from the accident in question. Appellants argue that the evidence goes further and establishes as a matter of law that loss of eyesight — appellees’ major item of damage — was not caused in the accident.

To be entitled to recover damages for loss of eyesight, or any of the other injuries in evidence, appellees had the burden of proving that Zodie Simpkins’ injuries were proximately caused by the acts complained of. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216 (1942); Scott v. Gardner, 159 S.W.2d 121 (Tex.Civ.App.1942), writ ref., w. m.; 40 Tex.Jur.2d 667, 668, Sec. 144; 17 Tex.Jur.2d 305, Sec. 246. Further, it is well established that, in personal injury cases, the law exacts that proof of which the case is susceptible. Dallas Consolidated Electric St. Ry. Co. v. Motwiller, 101 Tex. 515, 109 S.W. 918 (1908).

It is undisputed that the appellee, Zodie Simpkins, sustained injuries to her head, fracture of .the left arm, cuts or lacerations on her right leg, superficial abrasions on her left leg and broken ribs as a result of the collision, and appellants have conceded that she did. However, the undisputed and direct testimony from the doctors who testified establishes that she (Mrs. Simpkins) did not suffer any type of puncture wound on, to, or about her right eye. In particular, however, appellees offered substantial evidence showing that Zodie Simpkins was, at the time of the trial, suffering from the following specific conditions: (1) traumatic cataract in her right eye, causing loss of eyesight; (2) high blood pressure, causing dizziness and loss of balance; (3) colon and gall bladder deficiencies. Appellants contend, however, that none of the above conditions was shown by any evidence to have been caused by the accident and therefore that the jury should have been affirmatively instructed in connection with Special Issue No. 7, the general damage issue, not to allow any damages for these conditions.

In regard to these specific conditions, appellee’s (Zodie Simpkins) testimony essentially is that she did not suffer from them before the accident, but did begin suffering from them after the accident. Ap-pellee’s medical witness, Dr. Lacey, testified that Zodie Simpkins came to him several months after the accident and he observed and treated her for each of the above conditions in addition to treating her for other injuries which were received in the accident. Neither Dr. Lacey nor any other doctor offered any affirmative testimony that Zodie Simpkins’ loss of eyesight, high blood pressure, colon and gall bladder trouble were, in reasonable medical probability, a result of the accident in question.

A causal connection between a defendant’s negligence and the specific injury for which damages are sought must be shown, and this causal connection will not be presumed from the mere occurrence of an accident, Webester v. Henwood, 134 S.W.2d 333, 334 (Tex.Civ.App.1939), n. w. h. It is the plaintiff’s burden to introduce some evidence establishing this causal connection beyond the point of mere speculation or conjecture. Edwards v. Montgomery Ward & Co., 270 S.W.2d 432, 438 (Tex.Civ.App.1954), writ ref.; Prosser, Law of Torts, (Hornbook series, 2d Ed. 1955) Sec. 44, page 222.

Cataract, high blood pressure, colon and gall bladder deficiencies are diseases, and a layman does not possess the ability to determine the cause of such diseases without the benefit of some probative expert testimony. This rule has been recognized in a variety of decisions in this jurisdiction. The leading case on the point is Scott v. Liberty Mut. Ins. Co., 204 S.W.2d 16 (Tex.Civ.App.1947), writ ref., n. r. e. In that case, the plaintiff claimed Workmen’s Compensation benefits as the result of an accident which allegedly caused a cancerous growth to form in his eye, necessitating the removal of the eyeball. There was no dispute that the accident had occurred and the sole question before the court was whether there was a causal connection between the accident and the subsequent loss of the eyeball. Plaintiff’s medical witnesses were unable to testify that the cancerous growth in the eye had been caused by the accident, because they said the origin of cancer was not scientifically known. Plaintiff, similar to the contentions in this case, contended that the jury could have concluded from his testimony regarding the accident and the constant irritation in his eye thereafter that the cancer was caused by the accident. Affirming an instructed verdict in favor of the defendant, the Court of Civil Appeals held:

“* * * But there must be proven a causal connection between the accident and the ultimate death or disability. And this connection must appear from facts proven from which such connection may be reasonably inferred. The mere possibility that such causal connection exists is not sufficient. * * *
* * *
" * * * But there are certain scientific fields wherein the average juror or layman does not possess the knowledge or information from which to draw his own conclusions; and must be guided by the opinions of experts who have acquired scientific information on the subject. * * * The cmise, diagnosis and treatment of diseases usually come within this category. * * * ” (Emphasis added).

Prosser recognizes this to be the rule, and, in particular, he states:

“ * * * Where the conclusion (of causal connection) is not one within the common knowledge of laymen, expert testimony may provide a sufficient basis for it, but in the absence of such testimony it may not be drawn.” Prosser, Law of Torts (Hornbook Series, 2d. Ed., 1955) Sec. 44, p. 222.

Other cases announcing the same rule are: Travelers Ins. Co. v. Blazier, 228 S.W.2d 217 (Tex.Civ.App.1950, writ dism’d); Brown v. Shannon West Texas Memorial Hospital, 222 S.W.2d 248 (Tex.Civ.App. 1949, writ ref., n. r. e.) ; Travis Life Insurance Company v. Rodriguez, 326 S.W.2d 256 (Tex.Civ.App.1959, writ ref., n. r. e., 160 Tex. 182, 328 S.W.2d 434); National Life And Accident Insurance Company v. Shern, 389 S.W.2d 726 (Tex.Civ.App.1965, no writ); John Hancock Mutual Life Insurance Company v. Cooper, 386 S.W.2d 208 (Tex.Civ.App.1965), n. w. h.

We recognize that an injured party is permitted to testify in regard to a great many things regarding his physical condition. However, such testimony is usually limited to the nature and effect of his injuries. 17 T.J.2d 308, Damages, Sec. 248. This question is completely unrelated to that of causation, and nowhere have we found a case where the testimony of an injured party (or any layman) has been accorded probative value on the question of the cause of a particular disease. As the above authorities indicate, a layman’s testimony upon this question is of no benefit to the jury and has no probative value because it involves a subject clearly within the field of medical science. Our Supreme Court has recently discussed this very point in Texas Employers’ Insurance Association v. Espinosa, 367 S.W.2d 667 (S.Ct., 1963). In that case, plaintiff sought Workmen’s Compensation benefits for a specific injury to the eye which was claimed to have extended to and affected the body generally, causing headaches and dizziness. Holding that claimant’s subjective complaints alone were not evidence of a causal connection between the initial injury and the subsequent headaches and dizziness, Judge Norvell held:

“ * * * Specific injuries like all bodily injuries have their painful aftermaths and like undesirable consequences, but mere proof of this is insufficient in law to show an extension of a specific injury. * * * ”

Writ of Error was granted in Espinosa on the point raised by dissent in the Court of Civil Appeals, 363 S.W.2d 871, 874, wherein the rule in question was discussed at greater length. There it was said:

“The cases cited in the majority opinion hold that the issue as to disability, and the extent thereof, may be established by lay testimony, even though it may be contradicted by medical evidence. They are not controlling here, however, in that our problem is to show a causal connection between the cut on Espinosa’s left eye and the headaches. I have been unable to find a case which permits the jury to establish, without the benefit of evidence, a causal connection between a specific injury and subsequent pain in other parts of the body. * * * A lay witness is usually not qualified to testify as to cause of, or to diagnose, a disease, and the jury should not he permitted to draw its conclusions by speculation or surmise. * * *” (Emphasis added).

Appellants in conceding that Mrs. Simp-kins suffered injury and pain point out, however, that some of the alleged disabilities, i. e., loss of balance, dizziness and consequent inability to work were, according to Dr. Lacey (appellee’s witness), caused by some of the very conditions which were not proven to be related to this accident.

The testimony of Dr. Lacey, appellee’s principal medical witness, in sum and substance is simply that he discovered and/or treated the above conditions for Mrs. Simp-kins. Nowhere does he express any opinion of probative force that these injuries were caused by or were the natural result of any injuries sustained in the accident in question. The same is true of the testimony of the optometrist, Dr. Crawford. He could merely state that Mrs. Simpkins had a traumatic cataract, expressing no opinion as to its cause.

As we view the evidence before us in this case, there is no evidence of probative force that Mrs. Simpkins’ claimed loss of eyesight, colon and gall bladder trouble, and/or high blood pressure were causally related to the accident involved in this lawsuit. Appellants argue that the uncontra-dicted and positive testimony of Dr. Steph and Dr. McCarthy to the effect that Mrs. Simpkins had a traumatic cataract, which usually takes a substantial length of time to form and which, in their opinion, was caused from a previous accident, establishes as a matter of law that Mrs. Simpkins’ claimed loss of eyesight was not in fact caused in this accident.

Appellee’s testimony, therefore, has no probative value other than to establish the nature of her physical condition before the accident and the extent of the various injuries, diseases and conditions from which she was suffering after the accident. This testimony is not, however, any evidence that the diseases — cataract, high blood pressure, colon and gall bladder trouble — were caused by this accident. Since there was no medical testimony relating these diseases directly to the accident, we hold, under the record in this case, that the trial court fell into error in refusing to give appellants’ requested instructions.

It has long since been established in Texas that a charge which tells the jury that they may consider certain elements as damages is not sufficient as an instruction “to the jury not to consider improper elements raised by the evidence and closely intermingled with proper elements.” Blau-grund v. Gish, 142 Tex. 379, 179 S.W.2d 266 (1944); Holmes v. Cooley, 308 S.W.2d 150 (Tex.Civ.App.1957), writ ref., n. r. e.; City of Fort Worth v. Satterwhite, 329 S.W. 2d 899 (Tex.Civ.App.1959), n. w. h. In assessing damages in a personal injury action, the jury can allow only for those damages shown to have been proximately caused as a result of the defendant’s negligent act, and the trial judge has the duty to expressly exclude from the jury’s consideration by an affirmative charge any evidence which cannot properly be considered in assessing damages. Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683 (1938); Pedigo & Pedigo v. Croom, 37 S.W.2d 1074 (Tex.Civ.App.1931), writ ref.; Texas Coca-Cola Bottling Co. v. Lovejoy, 138 S.W.2d 254 (Tex.Civ.App.1940), writ ref.; Scott v. Gardner, supra; Melear v. Fairchild, 278 S.W.2d 280 (Tex.Civ.App.1954), n. w. h.; Wichita Transit Co. v. Sanders, 214 S.W.2d 810 (Tex.Civ.App.1948), n. w. h.

In the case of Dallas Ry. & Terminal Co. v. Ector, supra, which is factually similar to the case before us, Judge Hickman in an opinion adopted by the Supreme Court held:

“It has long been a settled rule in this state that, where a plaintiff in a personal injury suit is suffering from an infirmity not caused by the accident which is the basis of the suit, and where the injuries flowing from the prior existing infirmity and those flowing from the negligence of the defendant are closely connected and intermingled to the extent that the jury might become confused and allow for proper elements of damages, the trial court should affirmatively charge the jury that plaintiff is entitled to recover only to the extent that his injuries were aggravated by the defendant’s negligence. * * *
* * * * * *
“Since it is not error to specify the elements of damages properly to be considered, it is not error to exclude elements improper to be considered. * * *
“In the instant case the railway company was entitled to an affirmative exclusion of such elements of damages, if any, as might have been attributable to the prior infirmities, if any, of Mrs. Ector. * * * ” (Emphasis ours).

Appellees contend that in view of the fact that the damage issue limits the jury’s consideration to the damage not proximately caused by the collision in the suit, the trial court was not required to give the exclusionary instructions. However, such a limitation is not sufficient when there is a controversy over whether the injuries complained of were in fact caused from the accident in question, Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528 (1958). This seems to be particularly true in cases, like the one now before us, where there is no evidence of probative force of any causal relation between the injuries in evidence and the accident. In this “no evidence” type of case, the plaintiff, as a matter of law, is not entitled to recover for those injuries not shown to be causally related to the accident, and the trial judge has the duty to instruct the jury not to consider such elements in assessing damages. If the jury is not so instructed, and they are given the standard charge limiting them to damages “proximately caused” by the accident, then, in a “no evidence” case, the jury is entitled to pass upon a question of law and decide for themselves whether or not there is any evidence of probative force of causal relation. Such is not the role of the jury, and it is well established that it is for the judge — not the jury — to place the proper limitation upon the items of damage to be considered. Panhandle & S. F. Ry. Co. v. Villarreal, 153 S.W.2d 350 (Tex.Civ.App.1941), n. w. h.; Young v. Howell, 236 S.W.2d 247 (Tex.Civ.App.1951), n. w. h.

Since appellees failed to show by any evidence of probative force causal connection between the accident and the various injuries or conditions complained of here, the trial judge’s duty to instruct the jury not to consider these elements was clear, and it is perhaps best expressed in Hines v. Kelley, 252 S.W. 1033 (Commission of Appeals, 1923) where it was held:

* * * In passing upon the sufficiency of the charge, however, the Supreme Court clearly indicates that the improper elements themselves must he excluded — specifically, and not by some general expression descriptive of those elements, which may not be clearly understood by one unfamiliar with the legal interpretation of that expression. * * ”

As authorities for their position, appellees cite Airline Motor Coaches, Inc. v. Howell, Tex.Civ.App., 195 S.W.2d 713; Dallas Ry. & Terminal Co. v. Orr, 147 Tex. 383, 215 S.W.2d 862; Transcontinental Bus System, Inc. v. Scirratt, Tex.Civ.App., 376 S.W.2d 56, n. r. e.; Yellow Cab and Baggage Company v. Green, 154 Tex. 330, 277 S.W.2d 92. These cases, especially Yellow Cab and Baggage Company v. Green, are cases in which there was a disputed fact issue regarding causal connection or aggravation of pre-existing injuries. In that type of case, it is the function of the jury to resolve the factual dispute, and therefore, the normal ■damage issue restricting recovery to damages “proximately caused” by the accident is a sufficient submission adequately confining the jury to allowing for those damages which they conclude, upon the disputed facts, were caused by the accident in •question. Moreover, the Eastland Court of Civil Appeals in Teague v. Washburn, 368 S.W.2d 229, writ ref., n. r. e., further distinguished the Yellow Cab and Baggage Company case from those cases such as the one at bar, as follows:

“ * * * Appellee cites Yellow Cab and Baggage Company v. Green (Sup.Ct.) 154 Tex. 330, 277 S.W.2d 92, in support of its contention that it was not necessary to so instruct the jury. In that case the damage issue, taken with the explanatory instructions, did affirmatively instruct the jury not to allow any damages for pain, suffering or loss of earnings not proximately caused by defendant’s negligence. There was no similar instruction here." (Emphasis ours). Likewise, there is no similar instruction given in the case now before us.

Airline Motor Coaches, Inc. v. Howell, supra, is distinguishable from the instant case in that the Court of Civil Appeals points out that not only was the jury expressly limited in the main part of the issue, but in each element of damage, to injuries resulting from the accident made the basis of this suit. The damage issue in question in the case at bar does not contain such limitations in each element of damage that the jury was instructed by the court they would consider in fixing the amount of damages, if any.

The appellees also contend that appellants did not make any objection to the submission of the damage Issue No. 7 and that by the provisions of Rule 274, Texas Rules of Civil Procedure having failed to so object waived any complaint to the exclusion of the requested instructions. It is appellants’ contention that under the facts, this case comes within the provisions of Rule 279, T.R.C.P.

The record reflects that in addition to requesting the instructions above shown being Nos. 1-4, the appellants also in writing timely objected to the court’s charge for its failure to include therein their above requested instructions, which objections were overruled by the court.

The Supreme Court of this state has held in Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000 (1944) that:

“ * * * Rule 279 applies when there is a failure to submit a definition, while Rule 274 applies when a definition is actually contained in the charge, but the complaining party objects to it because it is thought to be erroneous. When the court fails to define a term which a litigant is entitled to have defined Rule 279 is applicable; but when, as here, the court’s charge does contain a definition, but same is unsatisfactory to the litigant, Rule 274 is applicable. * * * ”

See also Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312, (S.Ct.) 1943 and Yellow Cab and Baggage Company v. Green, supra.

Appellants having objected both to the court’s charge for the failure to include the exclusionary instructions and submitted to the court substantially correct explanatory instructions, they complied with both Rule 274 and 279, therefore it becomes immaterial as to which one is applicable to this case.

In view of our disposition of this case, a discussion of the other Points of Error raised by appellants will not be necessary as they will not likely occur on another trial.

For the reasons above stated, this case is reversed and remanded to the trial court.

SELLERS, Justice.

I find myself unable to agree with the majority in this case to the effect that expert testimony of doctors must be taken as true and disbelieve the injured party who testified that she was in good health before the accident, and after the same, could not see out of an eye that was injured in the accident; that before the accident she could do work, and after the accident she was dizzy and could not work.

In a case like this, it is my opinion that a jury issue is made as to whether the dizziness was from the injury or was brought on by the disease of high blood pressure which had no connection with the accident. In the opinion, Judge Alexander was correct when he said in the case of Maryland Casualty Company v. Hearks, 144 Tex. 317, 190 S.W.2d 62, in discussing the right of a juror to consider the evidence of a doctor, had this to say:

“ * * * When all conflicts in the testimony are resolved in favor of the verdict, it will be found that the statements made by the jurors amounted to nothing more than a layman’s discussion of the weight to be given to the evidence before the jury. It was the mere assertion by the juror that in the light of his ordinary experience he did not believe that the test made by the examining physician at the time the employee went to work for the employer was sufficient to determine whether or not the employee was blind in one eye. This was legitimate.”

Nor do I find myself in disagreement with the case cited by the majority in Texas Employers’ Insurance Association v. Petronilo Espinosa, 367 S.W.2d 667, a compensation case in which the plaintiff sought judgment for a specific injury to the eye and that the specific injury extended to the other parts of the body. The injury to the other parts of the body was shown by the evidence to be pain and headaches and the Court simply held that the specific injury was occasioned by pain and headaches and that such evidence alone would not be sufficient to show injury to other parts of the body.

It would serve no useful purpose to extend this dissent by a discussion of other cases. I deem it sufficient to say that the appellant was not entitled to have the charges given as requested for the reason that it infringed on the jury’s duties and since no other complaint is made to the Court’s charge, the judgment should be affirmed.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    CONTINENTAL CASUALTY COMPANY, Appellant, v. Walter Earl VAUGHN, Appellee.
    No. 14874.
    Court of Civil Appeals of Texas. Houston.
    Oct. 20, 1966.
    Rehearing Denied Nov. 10, 1966.

      The Kempers, Houston, T. M. Kemper, Houston, of counsel, for appellant.
    Brown, Kronzer, Abraham, Watkins & Steely, Dale Harvill, Frank T. Abraham, W. James Kronzer, Houston, for appellee.
   WERLEIN, Justice.

Appellee sued his insurance carrier to recover damages for an anticipatory breach of an accident insurance policy. The policy provides for the payment of monthly indemnity for loss resulting from injury, in the sum of $100.00 for total disability for the maximum period of the insured’s life. It defines “injury” to mean “bodily injury caused by an accident * * * and resulting directly and independently of all other causes * * * ”

The jury found in answer to special issues submitted with proper definitions, that on or about March 30, 1962, appellee, Walter Earl Vaughn, sustained bodily injury caused by an accident and resulting directly and independently of all other causes; that such total disability was permanent; that appellant’s denial of liability to appellee was made without just excuse; that $29,-200.00, if paid now in cash, would be fair and reasonable damages for appellee to recover; and that $8,850.00 was a fair and reasonable attorney’s fee. The trial court found that the amount of principal damages in the sum of $29,200.00 should as a matter of law be reduced and discounted down to the sum of $14,246.00. The court then entered judgment for appellee in the sum of $28,385.00, which included said discounted amount, plus the amount awarded for attorney’s fees, 12% penalty on 43 past due accrued monthly installments and 6% interest thereon, and 43 monthly installments totalling $4,300.00. Appellant has perfected its appeal. Appellee has appealed only from the action of the court in discounting the amount of damages found for him by the jury.

The first question for our consideration is whether appellee has pleaded and made out a case for an anticipatory breach by appellant of its contract of insurance. It is appellant’s contention that appellee’s disability was not caused by an accident and that its denial of liability and refusal to pay anything whatever, past or future, based upon such contention does not constitute a repudiation of the insurance contract sufficient to entitle the insured to seek his damages. The jury found that appellant’s denial of liability to appellee was made without just excuse. The court defined “just excuse” as meaning a reasonable basis for the denial of liability in the light of the claim and proof of loss then existing to Continental Casualty Company, .and such an excuse as could be reasonably given by an insurer under the facts and circumstances then existing. Appellee takes the position that where there has been a total and arbitrary rejection of liability not hased on just cause, and the circumstances indicate that no proof would satisfy the insurer, and that no further clarification could be made, there has been a renunciation or repudiation sufficient to support a cause of action for anticipatory breach.

It is our view that there is ample evidence to support the jury’s finding that appellant’s denial of liability was made without just ■excuse. The evidence shows that on April 10, 1962, appellee wrote appellant a letter stating that he had sustained a back injury on March 30, 1962, and that he was in Leggett Memorial Hospital in Cleveland, Texas, and did not know how long he would he hospitalized or unable to work. Appellant sent appellee its standard preliminary claim form, which appellee returned, reporting that he had “a back injury in the nature of a ruptured disc that occurred on March 30, 1962 while loading a load of tubing on a truck in Houston.” The same report contained a statement by appellee’s •doctor, Dr. W. L. Barnett, to the effect that appellee had a ruptured intervertebral disc between Lumbar 4 and Lumbar 5; that the .accident occurred on March 30, 1962; that appellee first consulted the doctor on April 1, 1962; and that appellee was to have a spinal fusion. After receiving the preliminary claim form on May 22, 1962, appellant sent appellee one month’s indemnity and a thirty days’ hospital indemnity. Appellant sent appellee a supplementary claim form which he returned on June 4, 1962. It also Rad a doctor’s statement attached to it. As a result of the supplemental statement appellant sent appellee an additional monthly disability benefit.

Appellant then sent an inquiry to Leggett Memorial Hospital to examine the record as prepared during appellee’s confinement beginning April 1, 1962. In response thereto appellant received a history stating “patient was lifting a joint of pipe and felt sudden pain in lower back with radiation to left leg.” Following the receipt of such communication a request was made to ap-pellee “for a detailed description of the circumstances surrounding the incident.” Appellee’s return report was that he was injured “while unloading my truck with a load of tubing. I picked up a joint of tubing, rupturing a disc in my back. It happened about 4 p. m.” '

Appellant did not question at any time that appellee had a back injury. Its question was “Was it an accidental injury?” Its definition of “injury” according to its representative was “an abnormal, localized condition of the body that is not caused by an existing illness or disease process”; whereas the policy defines “injury” as a “bodily injury caused by an accident and resulting directly and independently of all other causes, in loss * * * ”

On July 13, 1962, a representative of appellant wrote appellee explaining that his description of how his disability occurred indicated that such disability was not the result of an accident, and that benefits were, therefore, not payable. Thus, appellant denied liability on the basis that what had happened to appellee could not be considered an accident. Appellant’s representative testified that appellee’s description of how the accident occurred was the basis of appellant denying liability. It not only denied liability but asked that the benefits previously paid be refunded. Appellant took the position that appellee’s bodily disability was not caused by an accident, and this was still the position of the company at the time of the trial. Appellant’s representative testified that he doubted that the testimony of five eminent physicians declaring the occurrence in question to be an accident would have much effect on the company. In this connection it should be noted that appellee’s medical witness, Dr. David, testified that as a result of the accident appellee sustained a ruptured disc and possibly some other pathology. Dr. Donovan, who examined appellee for appellant, testified by deposition that in his opinion appellee’s disability was caused by the accident in question independently of all other causes. At the trial he testified that that was still his opinion. Appellant’s final position was that the incident or the manner in which appellee described what happened to him was not and could not be considered an accident. Said representative testified that appellee did what he intended to do when he picked up the piece of pipe and that nothing untoward happened to him, that is, “nothing accidental as far as the description we were given could be considered an accident.”

It seems obvious that appellant took the position that the occurrence in question was not an accident since appellee in lifting the pipe was doing what he intended to do, and hence any bodily injury sustained by him was not the result of an accident. After receiving appellant’s letter of July 13, 1962, denying liability, appellee wrote a letter to appellant on July 20 stating that he “would like to know why my accident was not for bodily injury.” To such letter appellant replied on August 3, 1962, as follows:

“Your policy defines injury as ‘bodily injury caused by an accident occurring while this policy is in force and resulting directly and independently of all other causes.’
“Mr. Vaughn, your description of how your disability occurred as well as other correspondence we have received indicates that your disability was not the result of an accident as defined by your policy. Therefore, the $500 which you have received was paid in error.
“We are sure you will agree that it is in the best interests of the B. F. Walker Company, this Company, and your own integrity to return this money as soon as possible. Your money order or check in the amount of $500 should be made out to the Continental Casualty Company and sent directly to this office.
“Your prompt cooperation will enable us to clear up this matter with a minimum difficulty. May we expect to hear from you within the next ten days ?”

In Pollack v. Pollack, Tex.Com.App.1931, 39 S.W.2d 853, which involved repudiation, of a contract providing for monthly payments and a specified amount in case the purchaser of property died before the seller, the Court said:

“In this connection we hold that Henry, having not only failed and refused to meet the monthly payments due on the contract, but, on the other hand, having absolutely repudiated the obligation, all without just excuse, has breached the contract, and therefore Charles is entitled to maintain his action in damages at once for the entire breach, and is entitled in one suit to-receive in damages the present value of all that he would have received if the contract had been performed, and he is not compelled to resort to repeated suits to recover the monthly payments. (Citing authorities)”

In the case of Universal Life & Accident Insurance Co. v. Sanders, Tex.Com. App.1937, opinion adopted, 129 Tex. 344, 102 S.W.2d 405, the Court held that the petition contained sufficient allegations of an anticipatory breach. The petition alleged that plaintiff was totally and permanently disabled, that she had on numerous occasions so advised the agent of the insurer, and that the agent and the company had continually refused to furnish her proofs of loss and that the company denied all liability under the policy in question. See also opinion of the Court of Civil Appeals, 74 S.W.2d 301. The Supreme Court used the following language:

“It is further argued that in the Pollack Case it was alleged and proved that the obligor had absolutely repudiated his obligation without just cause, whereas there are not comparable allegations in the petition in the instant case. The allegations of the petition in this regard are not altogether satisfactory. Some of them would indicate that the defendant breached, but did not repudiate, its contract. However, when tested by a general demurrer only, it cannot be said that they do not charge that defendant completely and absolutely repudiated its obligation without excuse. If it did so, no reason is perceived why the rule announced in the Pollack Case should not be applicable in the instant case.”

The Sanders case stands for the proposition that there can be no recovery of anticipatory damages where the defendant has merely breached but has not repudiated its contractual obligations. The Court said that if the defendant completely and absolutely repudiates its obligation under the contract, “ * * * no reason is perceived why the rule announced in the Pollack Case should not be applicable in the instant case.” The Court further stated:

“It is not to be understood that we are extending the doctrine of anticipatory breach so as to make it applicable to cases where the insurer merely denies liability or claims defenses under the terms of the policy. The Pollack opinions limit its application to cases in which the obligor absolutely repudiates the obligation without just excuse.”

In the present case appellee pleaded in substance that the appellant refused to make any further payments on the ground that the injury received by appellee was not “accidental”; that to conclude that lifting a pipe causing a ruptured disc in the claimants’ back was “intentional” was and is completely unfounded; that such contention was, and is, unreasonable and unjust under the fact of the case and does not constitute a bona fide dispute as to the coverage of the policy, but it is such an arbitrary position that it constitutes a repudiation of the contract itself and amounts to a breach of the entire contract; and that the declaration of the unreasonable position taken by appellant constitutes an unconditional refusal of appellant to perform under the contract as made, and that by appellant’s repudiation of the contract without reason or just excuse, appel-lee has been damaged in the sum of $28,-680.00. It is our view that appellee pleaded a good cause of action for anticipatory breach consisting of the absolute repudiation by appellant of its obligation under the contract without just excuse.

Appellant undertakes in its brief to draw a distinction between a breach of the contract, which it concedes and a repudiation which it denies. It is our view that in the present case there was more than a mere breach of the contract by appellant. Its position was and is that it has no obligation to pay appellee anything whatever under the policy on the ground that the incident in question and the bodily injury to appellee was not an accident. Its denial was not based upon a mere difference as to the nature and extent of appellee’s incapacity, but was a total and arbitrary rejection of plaintiff’s claim, not based on just cause or excuse. The facts and circumstances of the case indicate that no proof would satisfy appellant, and that no further clarification could be made, thus establishing a renunciation of its obligation sufficient to support a cause of action for anticipatory breach. The repudiation of its obligation to appellee consists of words and actions that indicate that appellant was not going to perform its contract in the future with respect to its obligation to make payments to appellee, and that it would be utterly useless .for appellee to insist upon such payments. Under these circumstances appellee should not be driven to the necessity of filing suits periodically for the recovery of future payments as they matured. See Continental Casualty Co. v. Boerger, Tex.Civ.App., 389 S.W.2d 566, writ dism., and authorities cited.

In Rapid Transit Lines, Inc. v. Transit Ads, Inc., Tex.Civ.App., 401 S.W.2d 276, the Eastland Court stated:

“Rapid pleaded that it had no legal obligation to honor the Transit Ad contract. Its president testified distinctly and unequivocally that the contract was not binding on his company. The record reveals that Rapid did not recognize and refused to perform under the agreement. The foregoing and other facts and circumstances in evidence established an anticipatory breach of the contract. Pollack v. Pollack (Com.App.), 46 S.W.2d 292; Continental Casualty Company v. Boerger, Tex.Civ.App., 389 S.W.2d 566 (writ dismissed).”

In the present case there was more than a mere assertion by appellant of legitimate defenses and denial of liability under the policy based upon reasonable grounds or a difference of opinion or upon a conflict in the evidence as to whether appellee sustained an accidental injury. Here the denial of liability was utterly untenable and arbitrary, and based upon no evidence whatever, and, as the jury found, without just excuse. It is true that in its letter of August 28, 1962 addressed to appellee’s attorney, appellant stated that it had a hospital report which showed that appellee had a “congenital variation of lumbo sacral joint.” This defect, if it existed, was, as stated in appellant’s letter, “in evidence since birth.” There was and is no medical or hospital statement or evidence that such congenital defect contributed in any way to appellee’s accidental injury. The only obligation of appellant under the policy that had ripened into full fruition was its obligation to make the payments as it contracted to do. When it repudiated that contractual obligation without just cause or excuse, it repudiated its contract to all practicable purposes. Its repudiation was not equivocal but, as all the evidence shows, it was a fixed, final and unqualified disclaimer of all liability, even to the point of insisting that appellee return the payments he had received, thus manifesting an adamant denial of all liability upon the wholly untenable ground that appellee had not sustained a bodily injury caused by accident.

Appellant’s unqualified denial of liability under the policy, both as to matured payments and as to unmatured payments, constituted an entire repudiation of its contractual obligation as distinguished from a mere failure or refusal to pay the matured installments. See American Casualty & Life Co. v. McCuistion, 1947, 202 S.W.2d 474, writ ref., n. r. e.; Commercial Travelers Casualty Co. v. Dymke, Tex. Civ.App. 1955, 279 S.W.2d 405. See also Needham v. American National Insurance Company, 1936, 97 S.W.2d 1016, writ dism., where the Dallas Court of Civil Appeals held that the following summary of testimony of Needham amounted to a repudiation of the policy: “After appellant was informed that any further effort on his part to establish, by any proof appellee would suggest or demand, his total and permanent disability, would be a ‘waste of time,’ and that this clause of his policy was canceled, this suit was instituted.” It is our view that the evidence in the instant case was sufficient to authorize the maintenance of this suit as and for an anticipatory breach and the recovery of damages measured by the present value of the unma-tured installments that would become due but for such repudiation.

The parties stipulated that the average life expectancy of a man 53 years of age was 20.8 years. Appellant objected to the admissibility of such stipulation on the ground that it was wholly irrelevant and immaterial in a suit on an accident insurance policy, the question being whether the claimant’s total disability, if any, would continue during his life expectancy. In the stipulation it was stated: “ * * * the parties are not stipulating that the Plaintiff, Walter Earl Vaughn, himself would necessarily live that long, nor are they stipulating that he could not live longer, but this stipulation represents an agreement as to the average remaining life expectancy of a man of the above-stated age.”

In the case of Universal Life & Accident Insurance Co. v. Sanders, supra, it was shown that the insured had become “permanently paralyzed” and that such condition would continue “permanently and totally through the period of her natural life.” Thus, there was every reason to believe that the life expectancy of the claimant had been shortened. In such case mortality tables would not furnish a reasonable evidentiary guide line as to probable or possible expectancy. On the other hand, there is no suggestion in the record in the present case that Vaughn’s life expectancy would be shortened as a result of the injury he had sustained. His bodily injury had removed him from all manual labor and industrial work and the danger of injury incident thereto. Hence, his life expectancy would in all probability be increased beyond the normal life span of persons of similar age. The stipulation merely informed the jury of the usual life expectancy of a person of appellee’s age. It was some evidence which the jury might consider, but the jury was not bound to measure the life span of appellee by mortality tables. Texas Consolidated Transportation Co. v. Eubanks, Tex.Civ.App., 340 S.W.2d 830, writ ref., n. r. e. Furthermore, the objection to the admissibility of the life expectancy stipulation in fact showed its relevancy since as appellant’s objection points out, the question was whether appellee’s disability would continue during “his life expectancy.” We are of the opinion that appellant has failed to show that the admission of such stipulation was reversible error or that it was reasonably calculated to cause and probably did cause the rendition of an improper verdict. Gulf, Colorado & Santa Fe Ry. Co. v. Hampton, 1962, 358 S.W.2d 690, writ ref., n. r. e.; Panhandle & Santa Fe Ry. Co. v. Dean, 269 S.W.2d 439, writ ref.r n. r. e.; Rule 434, Texas Rules of Civil Procedure.

Appellant’s fifth point, complaining that the court erred in submitting Special Issue No. 3 concerning permanent disability since an affirmative finding thereto would be against the greater weight and preponderance of the evidence, is clearly a no evidence assignment. McDonald v. New York Central Mutual Fire Ins. Co., Tex.Sup.1964, 380 S.W.2d 545, 548; Garza v. Alviar, Tex.Sup.1965, 395 S.W.2d 821; Solgaard v. Texas & N. O. R. Co., 1950, 149 Tex. 181, 229 S.W.2d 777, 780; Calvert, 38 Texas Law Review 361. In briefing such point appellant has recognized that there was some evidence which warranted the submission of such issue in that it wholly failed to present or assign in its brief any no evidence contentions. Although not required to do so, we have read the entire statement of facts and examined all the exhibits and have concluded there was an abundance of evidence warranting submission of such issue. Furthermore, in considering all of the evidence, both that favorable to the jury’s finding of permanent disability and that militating against such finding, we have concluded that such finding is not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In Re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660.

Appellant’s sixth, seventh and eighth points of error have been carefully considered and the same are overruled. What has been said hereinabove sufficiently covers such points. Appellant’s last last point is that the court erred in entering judgment for attorney’s fees excessive in amount since in part based upon an anticipatory breach. Under this point appellant cites Pennell v. United Insurance Co., 150 Tex. 541, 243 S.W.2d 572. The present case is distinguishable from the Pennell case, which was an action brought on a health and accident insurance policy to recover monthly disability benefits plus double indemnity benefits. It was not a suit to recover damages for an anticipatory breach of a contract. The court held that installments not yet due should not be ■considered in measuring attorney’s fees. There was ample evidence in the instant •case to support the amount of attorney’s fees found by the jury. Indeed, appellant ■does not contend that the fee in question would be excessive if appellee sustains his position that there has been an “anticipatory breach”. Furthermore, appellant and .appellee entered into a stipulation which reads in part as follows:

“By making this stipulation, it is understood that the Defendant * * * preserves its contention, that the Plaintiff is not entitled to recover, if at all, more than the past, accrued, and matured monthly installments provided by the insurance policy in question, plus the reasonable attorney’s fee found by the jury and a 12% penalty on the total amount of all such past due and accrued monthly installments.” (Emphasis ours)

As hereinabove stated, the trial court found that the principal damages in the sum •of $29,200.00 found by the jury should be reduced and discounted down to the sum of $14,246.00. The damage issue submitted to the jury reads as follows:

“What sum of money, if any, if paid now in cash do you find from a preponderance of the evidence would be the fair and reasonable damages, if any, recoverable by WALTER EARL VAUGHN, using as the basis for such finding, the benefits provided by the insurance policy in question at the rate of One Hundred Dollars ($100) per -month during the existence of such total disability, if any, as you have found he has sustained in the past and will in reasonable probability sustain in the future?”

Appellee has appealed from the order of the trial court reducing the verdict of the jury and discounting the award of the jury .at the rate of 6% per annum for 20.8 years. Appellee moved for a new trial upon the ground that such further and additional reduction was improper, and that “The amount of reduction should have been and is in law solely within the province of the Jury under such circumstances.”

A suit by an insured to collect prospective or future damages because of an anticipatory breach of an insurance policy is not a suit upon a contract but a suit at law for damages for the breach. Lumberman’s Mutual Casualty Co. v. Klotz, 5th Cir., 251 F.2d 499; Universal Life & Accident Ins. Co. v. Shaw, 1922, 139 Tex. 434, 163 S.W.2d 376. The law is well settled in Texas that in most suits for damages the instruction in the damage issue “if paid now in cash” is sufficient to direct the attention of the jury to the element of present value. Houston Belt & Terminal Ry. Co. v. Davis, 1929, Tex.Civ.App., 19 S.W.2d 77, writ ref. The general rule is that the extent to which a jury actually discounts the “damages” is peculiarly within the province of the jury. Texas Consolidated Transportation Co. v. Eubanks, supra; Texas & New Orleans Railroad Co. v. Flowers, Tex.Civ.App.1960, 336 S.W.2d 907.

Appellant did not object or except to the wording of said damage issue, nor did appellant at any time request any further instructions by the court in connection with such issue or suggest to the court that said issue did not correctly provide for a discount basis for present value, nor did it tender any additional explanatory instruction or definition, nor did appellant in its motion for new trial raise the question of any additional discount. In its brief appellant cites the case of Pollack v. Pollack, Tex.Com.App.1931, 39 S.W.2d 853, wherein monthly installments were due for 11.67 years based upon the life expectancy of Henry, the paying party. In that case the court said:

“Charles should have recovered judgment against Henry for the present worth at the time of judgment, June 5, 1928, of the $100,000 which Henry’s estate will owe Charles at the time of Henry’s death, which time is 11.67 years from the date of judgment. In computing the present worth at the time of judgment of such $100,000, same should have been discounted to its present worth at the time of judgment at 6 per cent interest per annum.”

The Pollack case is factually distinguishable from the instant case. In the present case the jury was instructed in the wording of the special issue to reduce the damages to present value. In the Pollack case the effort was to determine how a recovery could be made by use of expectancy tables, and to compute the present worth of the payment of the certain sum of $100,000 which Henry’s estate would owe Charles at the time of Henry’s death, which time was established at a definite 11.67 years from the date of judgment. Whereas in the present case there is no definite time designated. It was up to the jury to find a sum which if paid now in cash would compensate appellee for his total disability which the jury found was permanent and hence for the duration of appellee’s life.

Appellant contends that the jury’s determination of $29,200.00 was based upon their computation of the life expectancy of Vaughn, and that no reduction was in fact made. This is pure conjecture and speculation on the part of appellant, and especially so since the aforesaid stipulation clearly stated that “the parties are not stipulating that the plaintiff, Walter Earl Vaughn, himself would necessarily live that long, nor are they stipulating that he could not live longer * * * ” Furthermore, as stated hereinabove, appellant made no objection of such nature either before or after the jury’s verdict. In the absence of appropriate objections and exceptions it may he assumed that the jury may have concluded that appellee had a longer life expectancy than the average, and that the amount which they found was based upon such longer life expectancy.

In his motion to enter judgment filed January 31, 1966, appellee voluntarily agreed to reduce the principal amount of damages found by the jury in the sum of $29,200.00 to $28,680.00 and to remit the difference between such amounts in order to conform the principal amount of damages to the amount alleged in his petition. The judgment of the trial court is modified so as to restore to appellee the amount deducted as discount from the sum of $29,-200.00 less the sum of $520.00 remitted by appellee, and, as modified, affirmed.

Judgment as modified, affirmed.


author: NYE, Justice.

text:
    Troy Lee AUTRY, Appellant, v. Donald P. SPIERING, Jr., Appellee.
    No. 220.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 29, 1966.
    Rehearing Denied Oet. 20, 1966.

      Harry F. Maddin, of Cullen, Mallette, Maddin, Edwards & Williams, Victoria, for appellant.

      William S. Fly, of Fly, Cory, Moeller & Stevenson, Victoria, for appellee.
   OPINION

NYE, Justice.

This is an appeal from a summary judgment that plaintiff take nothing. Plaintiff Autry brought this suit for damages for personal injuries sustained by him as a result of a ong car collision while riding as an occupant.

The automobile was owned and was driven by the defendant Spiering. Plaintiff alleged that the defendant was guilty of acts constituting ordinary negligence, proximately causing his injuries and damages Defendant answered with a general denial followed by a motion for summarj judgment that plaintiff was a guest and was therefore barred from recovery against the defendant. Defendant asserted that under the undisputed evidence no payment for such transportation was anticipated or paid by the plaintiff and therefore as a matter of law, plaintiff was a “guest” within the meaning of Article 6701b. The trial court granted the defendant’s motion and entered judgment that plaintiff take nothing by his suit against defendant.

Plaintiff has perfected his appeal to this Court contending in one point that the trial court erred in granting the motion for summary judgment and holding that as a matter of law plaintiff was barred from recovery under the provisions of the Texas Guest Statute, Article 6701b, Vernon’s Ann.Civ. St. It is plaintiff’s contention that under the evidence, plaintiff was either a passenger as a matter of law, or that his status was a fact question for the trier of facts.

Article 6701b, V.A.C.S., provides that “No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.”

In passing upon the contentions of the parties, this Court must view all the evidence in the light most favorable to the party against whom summary judgment was granted, and must indulge in favor of such party every intendment reasonably deducible from the evidence. Rule 166-A, Texas Rules of Civil Procedure; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

The record reflects that defendant Spier-ing and plaintiff Autry lived in Victoria, Texas. They were employed by a well servicing company for the purpose of servicing a well at Blessing, Texas, some sixty miles distant from Victoria.

The plaintiff and defendant, along with two other men, entered into an agreement to take turns driving their cars to work. The defendant was to pick up the plaintiff and drive him sixty miles to Blessing to work and then back to Victoria. When it was plaintiff’s turn, he was to drive defendant to work in like manner. On the day of the accident the defendant picked up plaintiff and one other party in defendant’s car and drove them to Blessing to work on the well. This was defendant’s day to drive under the agreement. They finished their work about eleven o’clock at night, and were returning home later that night from Blessing when the accident took place. The plaintiff was asleep in the back seat of the car. The other occupant was asleep in the front seat on the right hand side. The car ran off the road and upset at the bottom of a cattle underpass, causing sever injuries to the plaintiff.

The plaintiff alleged that defendant was guilty of ordinary negligence in causing the accident and the resulting damages to him. The parties were not related to each other and had only casual acquaintance with each other. The record does not reflect that there was any other purpose for the making of the trip except for their work at Blessing.

Although the precise problem under the facts of this case does not appear to have engaged the attention of the Texas courts, cases from other jurisdictions whiph have passed upon this problem have held that such an arrangement takes the occupant out of the guest statute. See 10 A.L.R.2d 1351 and later case service. The only case we have found which holds clearly to the contrary is the case of Everett v. Burg, 301 Mich. 734, 4 N.W.2d 63, 146 A.L.R. 639. The Michigan court subsequently held that under a similar agreement a passenger for hire relationship existed as a matter of law. Bond v. Sharp, 325 Mich. 460, 39 N.W.2d 37.

In Texas an occupant that asserts ordinary negligence against the owner or driver of the car in which he was riding has the burden of proving that he was not a guest.

Generally speaking a guest under the Guest Statute may be defined as the recipient of the voluntary hospitality of the driver or owner. A passenger on the other hand is one whose transportation is paid for. The payment need not be money, but it must confer a definite benefit on the owner or driver. Not every benefit received, whether it be tangible or intangible, is sufficient to constitute payment within the meaning of the Guest Statute.

The question then that must be decided is: What benefit of a material or pecuniary nature to the owner or driver of a motor vehicle constitutes payment for such transportation within the meaning of the Guest Statute ?

The rule in Texas and that established by the authorities everywhere seems to be, that to remove a case from the provisions of the Guest Statute a definite relationship must be established and a definite tangible benefit to the operator must be shown to have been the motivating influence for furnishing the transportation. This rule was quoted with approval by the Supreme Court in Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194. See Raub v. Rowe, Tex.Civ.App., 119 S.W.2d 190, err. ref.

The emergency clause set forth in Art. 6701b, enacted by the 42nd Legislature in 1931 recognizes that fraud may be perpetrated upon insurers or owners and operators of motor vehicles. Therefore, the nature of the relationship between the occupant and the owner or operator of the vehicle must be considered, to test the liability for ordinary negligence. There may be a greater likelihood of collusion between the insured and a relative or a friend. If the agreement of the parties concerning the transportation involves a business proposition the likelihood of collusion would probably be less.

The nature of the benefit or the advantage derived must be material and tangible and must flow from and depend on the transportation provided. In considering the motivating influence you must consider the nature of the benefit or advantage derived; was the benefit of such a tangible nature so as to motivate the defendant to transport the plaintiff? If the occupant confers a contractual benefit he may be beyond the pale of the statute, for if a business purpose is served by the trip, the contribution is probably also induced by the business consideration and received as a commercial payment. Payment, therefore, has been made to the owner or operator if the transportation is likely to resolve in a definite tangible benefit to the operator or mutual benefit to the parties and if receipt of the benefit is the motivating reason for the transportation.

It therefore appears from the record before us that: The relationship between the parties was casual. The purpose of the trip was business. The parties had a contractual arrangement. Consideration was given by plaintiff to defendant for riding to work in defendant’s car by the reciprocal ride by defendant in plaintiff’s car, thus reducing the cost of transportation to each. This would amount to a definite tangible benefit. The relationship was an important one, as it was based upon business expediency and mutual benefit. It was the motivating influence for furnishing the transportation. We cannot say under this record that the arrangement was purely sociable and the sharing of the expenses was incidental as a matter of law, which we would be required to do to sustain the defendant’s position.

Judgment of the trial court is reversed and the case is remanded for trial.

      . Emphasis supplied.


author: McDONALD, Chief Justice.

text:
    Alvin M. STONE, Appellant, v. TEXAS LIQUOR CONTROL BOARD et al., Appellees.
    No. 4539.
    Court of Civil Appeals of Texas. Waco.
    Oct. 20, 1966.
    Rehearing Denied Nov. 10, 1966.
    Charles M. McDonald, Waco, for appellant.
    Wiley Stem, Tóm P. Moore, Jr., Waco, Douglas H. Chilton, Austin, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal from a judgment of the 54th District Court, abating and dismissing for want of jurisdiction, an attempted appeal from an order of the County Judge approving the application of Joe Bozarth for a Beer Retail Off-Premises license, and from the subsequent action of the Texas Liquor Control Board issuing such license.

Appellee Bozarth made application to the County Judge of McLennan County for a license to sell beer in Midway Park in the City of Waco. Appellant Stone filed contest to such application in the County Court. After hearing, the County Judge by order on June 15, 1966 approved the application of Bozarth for the beer license, and overruled and denied Stone’s contest. On June 16, 1966 the Texas Liquor Control Board issued such license.

Thereafter on July 12, 1966 Stone filed in District Court a “ * * * Petition of Appeal from an order and judgment of the County Court of McLennan County, Texas, approving an application for beer retailer’s off-premises license to Joe Bozarth, * * *, and the action of the Texas Liquor Control Board in issuing a license pursuant thereto * *

Appellee Bozarth filed plea in abatement and motion to dismiss appellant Stone’s appeal, asserting: 1) no right of appeal to District Court exists from the approval by the County Judge of an application for a beer permit; 2) no right of appeal exists -here from the order of the Liquor Board granting the license.

The District Court held appellant Stone had no legal right to appeal from the order of the County Judge approving appellee Bozarth’s application for beer license; and no legal right to appeal from the action of the Texas Liquor Control Board issuing such license; and that the District Court had no jurisdiction. The District Court entered judgment abating and dismissing the cause.

Appellant Stone appeals on 7 points, contending the trial court erred in holding that appellant has no legal right to appeal from the action of the County Judge in approving, and the Liquor Control Board in granting license to Bozarth to sell beer.

The authority of the County Judge and of the Liquor Control Board in regard to approval of application and issuance of license for liquor or beer sales is the exercise of an administrative function, and not a judicial function. State v. Bush, 151 Tex. 606, 253 S.W.2d 269; State v. Gutschke, 149 Tex. 292, 233 S.W.2d 446; Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198.

No right of appeal from an administrative order exists, unless there is statutory authority providing the right of appeal, (or unless the order violates some constitutional provision or adversely affects property rights of the person affected by the order). Richardson v. Alsup, Tex.Civ.App., 380 S.W.2d 923 (Er.Ref.); City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788; Texas Highway Commission v. El Paso Bldg. & Constr. Trades Council, 149 Tex. 457, 234 S.W.2d 857.

Article 667-6(e) Texas Liquor Control Act (Penal Code) provides for an appeal to the District Court by the applicant for a beer license, in the event his application is denied, but there is no provision in the article giving a contestant a right of appeal from the order of the County Judge approving an application for license.

And Article 666-14 provides for an appeal to the District Court from an order of the Liquor Control Board refusing a license, but makes no provision for appeal by a contestant, if the license be granted.

In State v. Lemaster, Tex.Civ.App., 275 S.W.2d 164, (nwh), the Court in passing on the precise question here involved said :

“Although paragraph (e) [Art. 667-6 Penal Code] provides for an appeal to the District Court by the applicant [for beer license] in event his application is denied, we find no provision in the Article giving a contestant the right to appeal from the order of the County Judge granting a permit.
“It is our opinion, therefore, that the District Court was not in error in sustaining the plea in abatement to the attempted appeal of the State from the order of the County Judge granting ap-pellee a permit to sell beer.”

Although the Lemaster case, supra, has been in the books for more than 10 years, the Legislature has not seen fit to change or amend the rule of law of such case.

And in Texas Liquor Control Board v. Abogado, Tex.Civ.App., 172 S.W.2d 778, (nwh), the Court said:

“It is clear, we think, had the County Judge granted the application [for beer license] there would have been no one who had the right to appeal therefrom.”

Under the authorities cited, since the orders appealed from were administrative, and the statutes provide no right of appeal therefrom to a contestant, (and no constitutional or property rights of appellant being shown to have been violated), appellant had no legal right to appeal, and the District Court had no jurisdiction of the cause.

Appellant earnestly contends that State v. Gutschke, 149 Tex. 292, 233 S.W.2d 446 is authority that a contestant has the right of appeal from County Judge’s approval of an application for beer license. We reject such contention. In Gutschke, the County Judge refused to approve the application for a beer license, and the applicant appealed to District Court, as authorized by Article 667-6(e). The District Court approved the application. The contestants then sought to appeal to the Court of Civil Appeals. The Supreme Court held that Article 667-6(e) gives a contestant the right to appeal to the Court of Civil Appeals, from an adverse determination in District Court, (once the matter has reached the District Court). Such case nowhere holds that a contestant has the right of appeal from the administrative (as distinguished from judicial) order of the County Judge approving an application for beer license.

All appellant’s points and contentions are overruled.

Affirmed.


author: WILSON, Justice.

text:
    Jerry M. SHELTON, Jr., Appellant, v. B. A. ALLEN, Appellee.
    No. 4529.
    Court of Civil Appeals of Texas. Waco.
    Oct. 20, 1966.
    Rehearing Denied Nov. 10, 1966.

      Barber & Seale, Jasper, for appellant.
    W. C. Davis, W. S. Barron, Bryan, for appellee.
   OPINION

WILSON, Justice.

Judgment non obstante veredicto for defendant was rendered in plaintiff-lessee’s action for damages alleging eviction from property described in a written lease agreement. Appellee’s motion for judgment was granted upon the ground the description of the realty purportedly leased is insufficient to satisfy the statute of frauds, Art. 3995, Vernon’s Ann.Civ.St.

The agreement recited that defendant agreed “to lease my house and 138 acres of land” to plaintiff. The instrument is dated Amarillo, Texas, June 23, 1961. Defendant owned a tract of 590 acres in Brazos County. Plaintiff alleged the 138 acres mentioned in the agreement was in that county.

The description in the contract does not identify the county or survey in which the land lies. It does not specify or indicate the relation of the 138 acres to be leased to the entire 590 acre tract. The document does not furnish within itself or by reference to any other existing writing the means by which the tract intended may be identified with reasonable certainty. The contract sued upon contravenes the statute of frauds. Republic National Bank of Dallas v. Stetson, Tex.Civ.App., 1965, 390 S.W.2d 257, 262; Hoover v. Wukasch, 152 Tex. 111, 254 S.W.2d 507; Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980.

Appellant insists that because plaintiff and defendant testified at the trial that they understood what land was referred to in the instrument the agreement was removed from the bar of the statute. The fact that the identity of the land was clear in the minds of the parties requires resort to parol evidence which is prohibited by the statute. The intention must be derived from the terms of the instrument itself. Matney v. Odom, 147 Tex. 26, 32, 210 S.W.2d 980, 984.

Plaintiff urges application of the four-year statute of limitation, Art. 5529, V.A.C.S., because he says his is an equitable action, and that article governs suits to correct description of realty. His cause of action as pleaded is not such; it is solely an action for damages arising out of a written lease agreement.

The contention is rejected. Neither the decision in Cushenberry v. Profit, Tex.Civ.App., 153 S.W.2d 291, 297, writ ref. w.m., relied on, nor the cases it cites support his position that all equitable actions are governed by Art. 5529. They hold only that suits to cancel a deed are so governed, and are barred in four years.

It is not necessary for us to pass on the propriety of the conclusion as to ownership of the cause of action alleged, as that question is not reached. Appellant’s other points are overruled. Affirmed.


author: CLAYTON, Justice.

text:
    G. B. WARNEKE, Appellant, v. ARGONAUT INSURANCE COMPANY, Appellee.
    No. 5808.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 26, 1966.
    Rehearing Denied Nov. 9, 1966.
    Warren Burnett, Robert D. Puer Odessa, for appellant.

      Shafer, Gilliland, Davis, Bunton & Mc-Collum, James M. O’Leary, Odessa, for appellee.
   OPINION

CLAYTON, Justice.

This is an appeal from the granting of a summary judgment in a workmen’s compensation case. The appellant, G. B. Warneke, was, on June 24, 1960, employed as a driller by John Grappe Drilling Company and was working on a well owned by E. H. Hunt and located on the Hunt property in Crockett County. Appellant was at the controls of a drilling rig, using gas, which blew through the mousehole, apparently, when it exploded and caught fire. Appellant was burned and injured and was confined to the hospital for some 29 days. He timely filed a claim before the Industrial Accident Board and then, on October 21, 1961, filed this suit against the appellee carrier for a larger recovery.

Meanwhile, and some time after he was released from the hospital, Mr. Hunt handed him a typewritten instrument and he was requested to sign it. This instrument read:

“Ozona, Texas
August , 1960
Mr. E. H. Hunt
Ozona, Texas
Dear Mr. Hunt:
This is to advise you that I do not hold you in anywise or manner responsible or liable for the injuries I received while in the employ of John Grappe Drilling Company of Levelland, Texas which occurred on or about June 24, 1960, while engaged in drilling operations on Sue Hunt No. 2 well situated in Section 6, Block J., GC&SF Ry & Co. Survey in Crockett County, Texas.
I will assert no claim against you for damages since I do not consider you as being liable therefor.
Yours very truly,
s/ G. B. Warneke
G. B. Warneke, Snyder, Texas
“Sworn to and subscribed before me this the 5th day of August, 1960, to certify which, witness my hand and seal of office.
s/_
Notary Public, Crockett County,
(SEAL) Texas”

Appellant said he would look it over, and he took it to a lawyer and they typewrote the following at the end of the first paragraph of the instrument:

“Except that this does not affect in any manner such claims I have against John Grappe Drlg. Co. or its Insurance carrier.”

Mr. Hunt and Mr. Grappe approved the instrument with the typewritten addition, and then appellant signed the instrument and swore to it before a notary public on August 5, 1960. Appellant then gave the instrument to Mr. Hunt, who, although (according to appellant), there had been nothing mentioned about money, gave appellant a check for $500.00, which appellant accepted, cashed and spent.

The appellee insurance company filed an original answer to the compensation case containing the usual defenses in a workmen’s compensation case, and then filed its motion for summary judgment. This motion first alleged that:

“The accident in question was an explosion resulting in a fire which caused' burns to the Plaintiff. The deposition of the Plaintiff shows that the explosion occurred under the floor of the drilling-rig and as a result of pressure which had accumulated thereunder. The direct cause of the explosion or what caused the flames were matters which were and are indefinite in the mind of the Plaintiff, but the circumstances were such under the deposition of the Plaintiff as to give rise to a possible cause of action against the owner and operator of the premises for his failure to furnish the Plaintiff a safe place in which to work on the occasion in question.”

The motion then continues, that:

“IV.
“ * * * after said possible cause of action had arisen, the Plaintiff, to-wit, on the Sth day of August, 1960, made, and executed and delivered to Mr. E. H. Hunt of Ozona, Texas, a valid release of aiiy and all claims or causes of action which the said Plaintiff had against the said E. H. Hunt, as a result of the explosion and fire and the personal injuries sustained by the Plaintiff * * *
“V.
“Under the terms and provisions of Section 6a of Article 8307 of the Revised Civil Statutes of the State of Texas, the Plaintiff, G. B. Warneke, had a right to proceed under the Workmen’s Compensation Act or to proceed at law against a person other than the subscriber but not against both. The Plaintiff, G. B. Warneke, has proceeded at law against the person (E. H. Hunt) other than the subscriber (John Grappe Drilling Company) and has, therefore, made an election of his remedies and is barred by law from further proceeding against the Defendant in this Case. The Plaintiff’s actions in releasing E. H. Hunt have foreclosed this Defendant from its right of subrogation provided to it by Section 6a of Article 8307, and that by foreclosing this Defendant’s right of subrogation, the Plaintiff has likewise foreclosed any further action which he may have as against this Defendant.”

The wording of Section 6a of Article 8307, Vernon’s Ann.Tex.St, is as follows:.

“Sec. 6a. 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. If compensation be claimed under this law by the injured employé or his legal beneficiaries, then the association shall be subrogated to the rights of the injured employé in so far as may be necessary and may enforce in the name of the injured employé or of his legal beneficiaries or in its own name and for the-joint use and benefit of said employé or beneficiaries and the association the liability of said other person, and in case the association recovers a sum greater than that paid or assumed by the association to the employé or his legal beneficiaries, together with a reasonable cost' of enforcing such liability, which shall be determined by the court trying the case, then out of the sum so recovered' the association shall reimburse itself and pay said cost and the excess so recovered shall be paid to the injured employé- or his beneficiaries. The association shall not have the right to adjust or compromise such liability against such third person without notice to the injured employé or his beneficiaries and' the approval of the board, upon a hearing thereof.”

The trial court, after hearing, granted appellee’s motion for summary judgment;hence this appeal.

We feel that under the above statutory provision and the cases interpreting it, ap-pellee’s position that “the trial court did not err in granting appellee’s motion for summary judgment because the release of a third party executed by appellant prior to proceeding for compensation benefits is a bar to such proceedings and to this suit” must be sustained.

The legislative reasoning behind the enactment of Section 6a of Article 8307, V.A.T.S., is fully and clearly set out in Employers’ Indemnity Corporation v. Felter, 277 S.W. 376, 378 (Tex.Com.App., 1925) in an opinion adopted by our Supreme Court. The opinion uses the following language:

“ * * * In the great majority of cases injuries are not the result of the act of third parties, but result from the employment itself. But, realizing that laborers might be injured, while working for the subscriber, by the acts of third parties, the statute attempted to do the right thing under circumstances of that kind. It was not the purpose of the Compensation Act to protect third parties from the consequences of their negligence. The lawmakers, realizing that much larger recoveries could be had by injured people under the common law than under compensation statutes, very wisely left it to the injured person to exercise an option in the premises and seek to recover what seemed to him to be for his best interests. On the other hand, if the injured person preferred compensation, then the lawmakers decided it was right to give to the insurance company the right to make the guilty party pay; hence the act subro-gates the insurance company to the cause of action which the injured party himself had against the third party. This is a most valuable right. No one could well deny this conclusion. But the Legislature went further and protected the injured employee by restricting the insurance company in its recovery against the tort-feasor to a return of the amount it had paid out in compensation. If it recovered more than such amount from the tort-feasor, the excess goes to the injured employee. So every effort was made to give to the injured employee every possible advantage, at the same time according to the insurance company a right to recoup its loss if the injury was negligently caused by some third party.”

Such suits under this right have been termed “recoupment suits”.

Appellant takes the position that the wording of the letter to Hunt, after appellant had consulted his attorney and language was added to the letter, did not constitute a complete release, since it expressly excluded the release of any cause of action appellant had against his employer, John Grappe Drilling Company, or its insurance carrier, appellee here. But the letter acted as an absolute release of Hunt from any actions brought against him by appellant or on his behalf, such as a subrogation claim would be. In Texas Employers Ins. Ass’n v. Brandon, 126 Tex. 636, 89 S.W.2d 982, 983 (Tex.Com.App., 1936, adopted opinion), where parties by the name of Punchard stood in the position in which we find Hunt here, the court said:

“The trial court did not err in excluding testimony offered for the purpose of contradicting or limiting the effect of this release, for two reasons: There was no pleading of fraud, accident, or mistake; and the Punchards are not parties to this suit. We must therefore regard it as being what on its face it purports to be, an absolute release of the Punchards from all liability.
* * * * * ⅜
“While an election to proceed against the insurer for compensation does not altogether bar an action by the employee for damages against a negligent third person, an election to proceed at law against such person is a bar to the employee’s right to compensation. Employers’ Indemnity Corporation v. Felter (Tex.Com.App.) 277 S.W. 376.
* * * * * *
«* $ * if there is such privity between the employee and the insurer as that a judgment against the employee in his suit against the negligent third person, to which the insurer is not a party, is binding on the insurer and could be successfully pleaded by such third person in a subsequent suit brought against him by the insurer for subrogation, then it must be held that the insurer is bound by the release by the employee of the negligent third person executed before the right of subrogation matures. An absolute release binds as effectively as a prior judgment. The two cases cannot be distinguished in principle.”

It is not necessary that compensation has been paid or assumed to be paid for a right to subrogation to exist. Such right may exist but has not matured until such payment or assumption has occurred. However, this unmatured right may be destroyed by pursuing the injured party’s claim against a third party. We believe this has been done in the present case. .As said in Texas Employers’ Insurance Ass’n v. Soliz, 288 S.W.2d 165, 167, 168 (Tex.Civ.App., 1956; ref., n. r. e.) : “The .Association by the act is subrogated ‘to the -rights of the injured employé’. If the employee has no rights neither does the Association”. The cited case goes farther in •describing the position of the insurance ■carrier which equally well applies, except •for the reference to “fraud”, to the case at hand:

“By another point, the Association urges that the employee has prejudiced the Association’s subrogation rights to such an extent that the employee is es-topped to assert a claim for compensation against the Association. We agree with the point. The Association has lost its rights against the third party, and this is so not because of anything that the Association has done or could have done. It was a. stranger to the negotiations about the third-party release, did not participate in the fraud, and, after its discovery, could not file or compel the employee to file a suit against the third party. The Association, though blameless and helpless is now also actionless, yet it is now the only one called upon to pay.”

A review of many of the points discussed above is to be found in the Texas Supreme Court case of Hart v. Traders & General Ins. Co., 144 Tex. 146, 189 S.W.2d 493, 494 (1945). The court makes the following pronouncements:

“The release recites that Hart received $50 in consideration for the execution and delivery of the release. The parties to the release, aside from Hart, are not parties to this suit, hence in this action the release must be accepted for what it purports to be. Texas Employers Ins. Ass’n v. Brand on, 126 Tex. 636, 89 S.W.2d 982.
“We are of the opinion that so long as the release which Hart executed to J. T. Hollis and Interstate Materials Company is valid and outstanding he cannot recover compensation under the Compensation Law for injuries received as a result of the same accident. Employers’ Indemnity Corporation v. Felter, Tex.Com.App., 277 S.W. 376; Brandon case, supra. The decision is based upon the principle that a release is a bar to any right of action growing out of the matter discharged. Chou-quette v. McCarthy et al., Tex.Civ.App., 56 S.W. 956, writ refused. It conclusively estops the releasor from making further efforts to enforce the claim released. McClure v. Fall et al., Tex.Com.App., 67 S.W.2d 231.
“It was definitely ruled in the Felter case, 277 S.W. 376, that an election to proceed against the insurer for compensation does not altogether bar an action by the employee for damages against a negligent third person but ‘an election to proceed at law against such person is a bar to the employee’s right to compensation.’ Brandon case, supra [126 Tex. 636, 89 S.W.2d 983]. It was pointedly held in the Brandon case that ‘an absolute release binds as effectively as a prior judgment.’
******
“The respondent insurer, in the event it had to pay Hart compensation, is given the statutory right of subrogation against a negligent third person to the extent of the amount of compensation it had to pay. Traders & General Ins. Co. v. West Texas Utilities Co., 140 Tex. 57, 165 S.W.2d 713. It is clear, therefore, that the release which Hart executed and delivered to Hollis et al. could be successfully pleaded in bar of a cause of action against a person not a party to the insurance arrangement, Hanson v. Ponder, Tex.Com.App., 300 S.W. 35, and under facts shown here could be successfully pleaded in bar of a suit for subrogation. It follows that such release estops Hart to thereafter claim compensation from the insurance carrier.
******
“The petitioner contends that respondent failed to allege and prove facts creating an existing liability against the parties in whose favor the release operates and thereby failed to show its right of subrogation, hence the release should not bar petitioner’s right to recover compensation. This contention is overruled. The release having been executed and delivered before any proceeding was had in an attempt to recover compensation, and being broad enough to bar any suit thereafter to be instituted seeking to recover damages as against a person not a party to the insurance agreement, it must be held that ‘the release binds as effectually as a prior judgment’.”

We believe that the action on the part of appellant with Hunt effectively eliminated any right of appellee for subrogation against Hunt, even though this may have been an immature right at the time. Since this is the only matter assigned as error, and since we find no error on the part of the trial court therein, the judgment of the trial court is affirmed.