text:
    J. M. HUFFINGTON, Appellant, v. TEXAS AND NEW ORLEANS RAILROAD COMPANY et al., Appellees.
    No. 11146.
    Court of Civil Appeals of Texas. Austin.
    Feb. 26, 1964.
    Rehearing Denied March 18, 1964.
    James F. Bobbitt, Karl E. Kraft, Houston, for appellant.
    Baker, Botts, Shepherd & Coates, John F. Heard, Houston, for appellees.
   HUGHES, Justice.

This suit was filed by J. M. Huffington, appellant, against the Texas and New Orleans Railroad Company and its successor and assign, Southern Pacific Company, for damages for fire losses to his land and its blue stem grass crop allegedly caused by the negligence of appellees. The farm of appellant adjoined appellees’ railroad right of way, over which their trains are operated, for a distance of 1.2 miles. Ninety-five acres of appellant’s blue stem grass crop was destroyed by fire on November 23, 1955.

Trial was to a jury which made these relevant findings:

1. Fire escaped from a train or some member of its crew on the occasion in suit.

2. This fire started a fire on the railroad right of way which spread to appellant’s grass crop.

3. The railroads had permitted weeds and other combustibles to exist on the right of way and in this the railroads were guilty of negligence proximately causing the fire on appellant’s land.

4. That appellant was guilty of negligence in failing to construct a fire guard along the fence by the railroad right of way, which negligence was a proximate cause of the burning of the grass on his land.

5. The value of the grass crop destroyed by the fire was found to be $2493.-75.

Upon this verdict, judgment was rendered for the railroads.

The weather at the time of the fire was dry and hot. A wind of fifteen to twenty miles per hour was blowing towards appellant’s property from the railroad right of way. The fire occurred shortly after a freight train had passed. A witness who saw the train go by testified:

“Q. Was there any fire there on the right of way before the train went by?
“A. No sir, not that I noticed.
“Q. Did you see any?
“A. No sir I didn’t.
“Q. Did you actually see fire coming out of the wheels there of the train ?
“A. Well it was fire underneath the train it seemed like, I don’t know, I’m not a railroad man, but it was fire like a hot box or whatever it was, it was fire and just falling off.
It looked like pieces were falling off the wheels there which I remember it was a Northeast wind blowing and it was pretty strong and it was blowing it back underneath the train.
“Q. Was the wind blowing from the train towards Mr. Huffington’s pasture ?
“A. Yes sir right across the right of way and on across was the way the wind was blowing.”

The weeds and grass on the railroad right of way were about four feet high. They had not been cut during the year of the fire. This growth caught fire first and the fire then spread to appellant’s property. The fire jumped a fifty foot ditch on appellant’s land.

Concerning the width and adequacy of a fire guard (called fire lane in West Texas) appellant testified:

“Q. Now, Mr. Huffington, how big a fire guard cloud around there would you have had to of had to kept the fire from spreading from the rightaway to your pasture?
“A. Well, that is just not possible. I know if it jumps sixty feet or a fifty foot ditch it will jump a fire dam of fifty to two hundred feet. It is throwing those embers there when the wind is blowing and they will go no telling where. You see it burns in clumps and then it kind of sails it over there like a torch and it may throw fire over two to three hundred feet.”

There is no other evidence concerning the character of fire guard or fire lane which a prudent person would construct to protect his grass land from an encroaching fire.

It is our opinion that no evidence exists in this cause to raise or create a duty on the part of appellant to construct a fire guard or plough a fire lane of a type feasible or adequate to protect his grass crop from a fire caused by the Railroad Companies, and negligently permitted by them to spread to appellant’s land.

A case directly in point on this question is Quanah, A. & P. Ry. Co. v. Stearns, 206 S.W. 857, by the Amarillo Court of Civil Appeals, no writ history. In that case fire escaped from a locomotive, set fire to waste on the right of way and was thence communicated to the grass growing on adjacent private land. One defense pleaded by the railroad company was the failure of the adjacent land owner to plough a fire guard on his property to protect his grass. The Court stated the question as follows :

“Is the owner of a pasture adjacent to a railway guilty of contributory negligence when he fails to plough or burn fireguards to protect his grass when it is probable that fire, caused by sparks from passing locomotives, will ignite grass and weeds on a right of way and spread to the owner’s premises ?”

The Court after stating that, “We are still unable to conclude that the duty to plough the fireguards in the exercise of ordinary care rested upon” the land owner rather than upon the railroad, made the following discussion, which we adopt:

“Appellant cites a number of cases where cotton and other personal property, placed near the railroad by the owner, was burned and where he was denied a recovery. The case of St. Louis & Southwestern Ry. Co. v. Arey, 107 Tex. 366, 179 S.W. 860, L.R.A. 1916B, 1065, is also cited in support of the proposition. That is a case where plaintiff had permitted loose oat straw to accumulate in the loft and stalls of his barn and had left some windows of the barn open on the side nearest the railroad, in consequence of which sparks from a passing locomotive set fire to the straw and destroyed his property. Discussing the question of contributory negligence of the plaintiff, the Supreme Court said:
“ ‘It is not a question of the lawful use by the owner of his premises; it is a question of his negligent use of them and the legal consequences of such use when it is directly responsible in whole or in part for injury to the owner’s property.’
“No charge of negligent use of his property is made against appellee in this case, unless permitting grass to grow on his pasture lands is such negligence. He had not placed any property near appellant’s track, negligently or otherwise; his grass was there before the railroad was constructed, and his act in permitting it to remain and grow does not subject him to the charge of ‘rashly or purposely exposing it to the hazard.’ The rule is settled that he is not required to anticipate the company’s negligence and has the right to'the full and free enjoyment of his property for all lawful purposes. Ry. Co. v. Arey, supra.
“Appellant also cites Ft. Worth & Denver Railway Co. v. Hapgood [Tex.Civ.App.], 184 S.W. 1075, as supporting its proposition. The contributory negligence alleged in that case was the refusal of the plaintiff Hapgood to permit defendant company to burn fireguards on his land adjacent to the right of way until after the company had paid him the value of the grass necessary to be burned. The trial court sustained a general demurrer to the plea, and the Second Court of Civil Appeals, speaking through Judge Dunklin, reversed the ruling. The extent of the holding in that case is that it was a question of fact whether or not the rejection of the company’s offer to burn fireguards on plaintiff’s land constituted contributory negligence. There is not the slightest intimation anywhere in the opinion that the court thought the duty rested upon Hapgood to burn the fireguards, but the court and the railway company seem to have both proceeded upon the idea that the law imposed that duty upon the railway company.
“We think the correct rule applicable to the facts of this case is stated in 11 R.C.L. p. 972, §§ 28 and 29, as follows:
“ ‘ * * * The duty of one, where negligence is already committed and known to him, does not, however, imply a duty to anticipate and provide against such negligence, and an owner of property is not guilty of contributory negligence in not foreseeing and providing against the negligence of a railroad company in setting or allowing the escape of fire by which his property is injured or destroyed. Though contributory negligence on the part of the property owner is a defense, he is bound only to use such a degree of care as a man of ordinary prudence would have exercised under like circumstances, and he will not be deprived of redress against the railway company for its negligence by the fact that had he been more vigilant the injury might not have happened. * * * The weight of authority is, however, to the effect that a person owning land adjoining the right of way of a railroad company is not guilty of contributory negligence in failing to remove the combustible matter from his land or in farming thereon in the ordinary and usual way; such conduct on his part not preventing a recovery for fire set by the railroad. A person having property adjacent to the railroad is not bound to keep his property in such condition as to guard against the negligence of the railroad company, but every person has the right to enjoy his property in an ordinary manner, and, while one is charged with the duty of saving his property when he can do so, he is under no obligation to stand guard over it and continually watch it to protect it from the negligence of the railroad company. He may cultivate, build upon, and use his lands, or leave them in a state of nature, as he may see proper, and will take upon himself no other risks than such as are incident to the operation of the road in the exercise of proper care and vigilance by the company, and will nevertheless he entitled to remedy for injuries by fires arising from the negligence of the company in the construction or management of its locomotives or in the condition in which its track is suffered to remain. The distinction between the cases of the railroad company and that of the contiguous owner is obvious. The company uses a dangerous agent and must provide proper safeguards; the landowner does nothing of the kind and has a right to remain quiescent.’ ”

So far as we have found this case has been cited only in Andrews v. East Texas Theaters, 289 S.W.2d 781, Texarkana Civil Appeals, no writ history. The Court there held that such case was inapplicable to a situation where the owner of property was found negligent in maintaining a fire hazard on his own property.

The Arey case, cited and distinguished in Quanah, is by Chief Justice Phillips and is strongly relied upon here by appel-lee. There it was said, “It is unnecessary to here restate that the owner of premises has the full beneficial right to their free enjoyment for all lawful purposes * * *. It is a right which is not limited by another’s use of his property; nor is it subject to the servitude of another’s wrongful use of the premises.”

The evidence here is that a fireguard with enough width to be effective would, if ploughed, deprive appellant of the use of several acres of land for growing grass, the only use for which the land seems presently adapted. The result would be that appellant would not have the full beneficial right to the free enjoyment of his property. He would lose such right, not through any act of his own but through the negligent use of their property by the railroads. This, in our opinion, would, if allowed, subject appellant’s land to a servitude of the railroads wrongful use of their premises.

Appellee does not complain that any trial errors were committed or that the damages found are excessive.

The judgment of the Trial Court is reversed and judgment is here rendered that appellant recover of and from appellees, jointly and severally, the sum of $2493.75 with interest at 6% per annum from November 23, 1955.

Reversed and rendered.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    Leland FIKES et al., Appellants, v. Hal BOGLE, Appellee.
    No. 7320.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 20, 1964.
    Rehearing Denied March 3, 1964.
    Gene Lary, Dallas, Hollie G. McClain, Gilmer, New & Townes, Denver City, for appellants.
    Don Hancock, Plains, Claude Freeman, Denver City, for appellee.
   NORTHCUTT, Justice.

This is an appeal from an order overruling pleas of privilege. The suit is for damages for conversion of a drilling rig, brought by one mortgagee, claiming to have a prior lien on the rig, against another mortgagee and two of its officers. Other defendants were a trucking company and its general manager.

Hal Bogle, plaintiff, filed suit in the District Court of Yoakum County against Leland Fikes and J. D. Lee, president and vice-president, respectively, of Texas Continental Investment Company, Inc., a Texas corporation, against Texas Continental Investment Company, Inc., and Jay Trucking Company, Inc., a Texas corporation, and Tom Lesh, its vice-president and general manager.

The home office of Texas Continental Investment Company, Inc. is in Dallas, Texas. It filed a plea of privilege to move the case to Dallas County. Fikes and Lee filed pleas of privilege to move the case to Dallas County where they resided. The office of the trucking company is Denver City, Yoakum County, where its vice-president, Lesh, resides.

Bogle filed controverting pleas in which he relied on Subdivisions 4, 9, and 23 of Article 1995, Revised Civil Statutes of Texas, to sustain venue in Yoakum County. After hearing before the court, the pleas of privilege of Fikes, Lee, and Texas Continental Investment Company, Inc. were overruled. From that order Fikes, Lee, and Texas Continental Investment Company, Inc. perfected this appeal and will hereafter be referred to as appellants, and Bogle will be referred to as appellee.

Appellee alleged in his amended original petition that on January 23, 1960, E. P. Campbell, since deceased, executed and delivered to appellee a promissory note in the sum of $75,000, due and payable one year from date, which was secured by chattel mortgage on a drilling rig at the time owned by E. P. Campbell; that the chattel mortgage was recorded in the Bill of Sale Records, Book 16, Page 277, and Chattel Mortgage Records bearing file No. 7759, in Lea County, New Mexico, on the seventeenth day of March 1960.

Appellee further alleged that after Campbell had given the above mentioned chattel mortgage to appellee that on or about August 1, 1960, he gave to the appellant, Texas Continental Investment Company, a mortgage covering the same drilling rig which included all of the necessary equipment thereto.

Appellee further pleaded that appellants, their servants, agent or employees seized possession of such drilling rig and equipment appurtenant thereto in Lea County, New Mexico, on August 5, 1960, or alternatively in Yoakum County, Texas, on or about October 5, 1960, or further alternatively in Eddy County, New Mexico, on or about May 9, 1961, at which time said property was loaded upon trucks belonging to Jay Trucking Company, Inc., under direction and control of Tom Lesh, acting upon orders of J. D. Lee and Texas Continental Investment Company, and transported the equipment to the yards of Leland Fikes in Denver City in Yoakum County, Texas, where said equipment was stored with the permission of the said Leland Fikes for approximately two months; that at a later date Tom Lesh and Jay Trucking Company, Inc., acting upon the instructions of the appellants, J. D. Lee and Texas Continental Investment Company, Inc., loaded the equipment on trucks of Jay Trucking Company, Inc. and hauled it from the yard of appellant, Leland Fikes, to East Texas where it was scattered beyond the reach of appellee.

By appellants’ first two points of error it is contended that Jay Trucking Company, a corporation, was a common carrier having a “Certificate of Convenience and Necessity” from the Railroad Commission of Texas and was therefore not liable for conversion, and that Tom Lesh acting as general manager for Jay Trucking Company was not liable for conversion. Section 4 of Article 1995 provides: “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.” It is admitted Jay Trucking Company, a corporation, had its office in Denver City, Yoakum County, and its vice-president, Lesh, resided in Yoakum County.

It is stated in the case of Fester v. Locke, 285 S.W.2d 239 at 241 as follows:

“The rule is succinctly stated in the case of Kasishke v. Ekern, Tex.Civ.App., Amarillo, 1954, 278 S.W.2d 274, at pages 276 and 277, viz.: ‘In construing the provisions of Exception 4 of Article 1995, it is well established that to maintain suit against a nonresident defendant, plaintiff must allege a joint cause of action against the resident and the nonresident defendants, and must introduce competent evidence sufficient to prove a cause of action against the resident defendant, under the allegations relied upon. Tunstill v. Scott, Tex.Civ.App., 120 S.W.2d 274; Dearing v. Morgan, Tex.Civ.App., 120 S.W.2d 555; Eppenauer v. Schrup, Tex.Civ.App., 121 S.W.2d 473; Lanham v. Lanham, Tex.Civ.App., 175 S.W.2d 286.’ ”

We must \ consider if there was competent evidence sufficient to prove a cause of action against Jay Trucking Company or Lesh under the allegations relied upon in order to hold the case in Yoakum County under Section 4 of Article 1995. If there was no cause of action against Jay Trucking Company or Lesh, venue would not be in Yoakum County under this section. Under this record the only theory whereby Jay Trucking Company or Lesh could be held as necessary parties to the suit would be they were guilty of conversion and they have never claimed any interest in the property and no demand or request has ever been made of them by ap-pellee for possession of the property. Since Jay Trucking Company was a common carrier under a “Certificate of Convenience and Necessity” from the Railroad Commission of Texas, it was not liable as for conversion to the appellee although the property here in question was delivered to it by the Texas Continental Investment Company, Inc. or the other defendants to be hauled as directed. The same is also true as to Lesh acting for Jay Trucking Company. We have not been cited to a Texas case on this exact point and neither have we found one. It is stated in the case of Hall v. Cumberland Pipe Line Co., 193 Ky. 728, 237 S.W. 405 at 408 as follows:

“The nature of the business of a common carrier, its duty to receive for transportation all goods tendered by any one in possession of them and apparently the owner, or authorized to control them, the strictness with which it is held to be an insurer of the safety and redelivery of the goods, and its inability to ascertain the true owner without such delays and investigation as would cripple its service to the public, if not render it impossible to do business, and, further, its denial of the right to contest the title of the bailor, except in the instance of its delivery of the goods to the true owner, are doubtless the basis of the adoption of a principle applying to them, which provides that the carrier can assume that the party in possession, when it has no knowledge to the contrary, is the owner or authorized to consign the goods for shipment, and if it receives and delivers them in accordance with the directions, without any knowledge of other claim, it is not liable as for conversion to the true owner, although the goods may have been delivered to it by one other than the owner, and to a consignee not authorized to receive them by reason of the title being in another. Shellnut v. Central Ga. Ry. Co., 131 Ga. 404, 62 S.E. 294, 18 L.R.A.(N.S.) 494; Gurley v. Armstead, supra [148 Mass. 267, 19 N.E. 389]; Pratt v. Northern Pac. Exp. Co., 13 Idaho 373, 90 Pac. 341, 10 L.R.A.(N.S.) 499, 121 Am. St.Rep. 268; 4 R.C.L. 842-843. Hence the Pipe Line Company was not liable to appellant for the conversion of any interest he may have had in the oil, which was delivered to it and redelivered by it to the consignee or consignees up to the time of the bringing of this suit.”

See also Shellnut v. Central of Georgia Ry. Co., 131 Ga. 404, 62 S.E. 294, 18 L.R.A. 494 (N.S. 1909) and the cases there cited. We are of the opinion, and so hold, that venue could not be held in Yoakum County under Section 4 of Article 1995 since there was no joint cause of action as against the resident defendants.

It is the contention of Texas Continental Investment Company it had the right to possession of the property by virtue of its mortgage and the property having been delivered to it by the owner (E. P. Campbell) and without notice of appellee’s mortgage and was not guilty of conversion. Appellee’s mortgage was executed and acknowledge by E. P. Campbell in Lubbock County, Texas. The mortgage recited the property here involved was located in - County, Texas. Appellee did not file his mortgage in Lubbock County, Texas, where the mortgagor lived or in any other county in Texas but filed the same in Lea County, New Mexico, where appellee lived. Appellee contends the appellants were guilty of conversion by seizing possession of the property in Lea County, New Mexico, on October 5, 1960, or alternatively in Yoakum County, Texas on October 5, 1960, or further alternatively in Eddy County, New Mexico, on May 9, 1961. Before appellee was entitled to hold venue in Yoa-kum County under Section 9 of Article 1995, he had to show that a conversion occurred. Crow v. Dobson, Tex.Civ.App., 308 S.W.2d 615. He must also show the conversion occurred in Yoakum County. Castro Cooperative Gin Company v. Harrison, Tex.Civ.App., 272 S.W.2d 538 and cases there cited.

If appellants seized possession of the property in Lea County, New Mexico, or in Eddy County, New Mexico, as pleaded by appellee, a conversion did not happen in Yoakum County. Then the only place we are to consider as to appellants’ conversion is in Yoakum County on October 5, 1960.

Appellants held a chattel mortgage upon the property in question, and had no notice of appellee’s mortgage at the time the mortgage was given. E. P. Campbell, the owner of the property here in question, delivered the property to the appellants and also gave them a mortgage upon the property. It is stated in the case of Cantrell v. Broadnax, Tex.Civ.App., 306 S.W.2d 429 at 433 as follows:

“ ‘It is a well-settled rule that one who is rightfully in possession of property, though the legal title thereto may be in another, is not guilty of conversion. Conversion is the unlawful and wrongful exercise of dominion, ownership, or control by one person over the property of another, to the exclusion of the exercise of the same rights by the owner.’ Zerr v. Howell, Tex.Civ.App., 88 S.W.2d 116, 118. The point is without merit.”

The same is shown to be true in the case of Sunray Enterprises, Inc. v. Rosenauf, Tex.Civ.App., 335 S.W.2d 670 (N.R.E.).

Since appellants were rightfully in possession of the property they were not guilty of any wrongful or unlawful exercise of dominion over the property and were not guilty of conversion. Under this record, we are of the opinion, and so hold, that appellee has not brought his case within either exception of Subdivision 4, 9, or 23 of Article 1995. Judgment of the trial court is reversed and the case ordered transferred to Dallas County.


author: WILLIAMS, Justice.

text:
    Dr. Cosette Faust NEWTON et vir, Appellants, v. The DALLAS MORNING NEWS, Appellee.
    No. 16313.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 21, 1964.
    Fanning, Billings, Harper, Pierce & Gil-ley, Dallas, for appellants.
    Locke, Purnell, Boren, Laney & Neely; Stanley E. Neely and Larry M. Lesh, Dallas, for appellee.
   WILLIAMS, Justice.

Action for libel. This appeal is from the judgment of the District Court sustaining appellee’s motion to dismiss appellants’ cause of action. We affirm that judgment.

Since the trial court disposed of this case by sustaining a motion to dismiss thereby holding that appellants’ petition failed to state a cause of action, we must test the propriety of this action in the same manner as previously done under the general demurrer practice and in so doing we must assume the truth of the allegations contained in the petition. Lone Star Gas Co. v. Murchison, Tex.Civ.App., 353 S.W.2d 870.

Appellants allege that they filed suit against the Town of Highland Park requesting the issuance of a writ of mandamus compelling the building inspector of Highland Park to issue a certain permit; that subsequently, appellants sued the Town of Highland Park praying for an injunction enjoining Highland Park officials from entering on their property located at 4005 Miramar Avenue, and from destroying or damaging appellants’ property; that Highland Park cross-acted against appellants, alleging that appellants’ residence and •swimming pool constitute a public nuisance and praying for a mandatory injunction ordering the demolition of these structures and removal of debris from the premises; that one of appellants’ neighbors intervened in the latter suit, praying for damages in the amount of $30,000 for loss in value, depreciation and damage to the neighboring property; that all those suits and cross-actions were settled; that the district judge commented on such settlement to a Dallas News reporter; that shortly thereafter, the following language appeared in an article in the Dallas Morning News:

“The feud Dr. Newton and her husband, Dr. F. H. Newton, waged with the Town of Highland Park and various neighbors centers around the Newton’s long-abandoned controversial home at 4005 Miramar * * * Judge Armstrong said the agreement allowed both sides a measure of victory. ‘I •think we have accomplished something -workable here,’ he said. ‘Highland Park sought destruction of the house and the Newtons countered with a $30,-000.00 damage suit against neighbors.’ ”

Appellants alleged that the quoted publication was false, scandalous and libelous and subjected their name and reputation to disgrace and contempt. It was further alleged that appellee had conspired, over a period of twenty years, to damage the good name, fame and reputation of appellants by publishing similar false, scandalous and libelous remarks (though such other statements are not quoted) and that, such publication above referred to was done with malice, all of which caused appellants to suffer damages in the sum of $1,000,000.

Appellee’s motion to dismiss alleged (1) that the publication complained of was not libelous, as a matter of law; (2) that, as a matter of law, the publication was a fair, true and impartial account of the proceedings in a court of justice and therefore privileged under Sec. 1, Art. 5432, Vernon’s Ann.Civ.St.; and (3) as a matter of law, the publication complained of was a reasonable and fair comment or criticism of a public matter of public concern, and therefore privileged under Sec. 4, Art. 5432, V.A.C.S.

In three points of error, briefed together, appellants assail the action of the trial court in sustaining the above motion because (1) there are genuine issues of fact as to the libelous nature of the statements complained of and published by appellee; (2) there are genuine issues of fact as to whether or not the publication complained of was a fair, true and impartial account of the proceedings in a court of justice, and thereby privileged; and (3) there are genuine issues of fact as to whether or not the publication complained of was a reasonable and fair comment or criticism as a matter of public concern and therefore privileged.

The primary question presented is whether the publication complained of is libelous as a matter of law.

Article 5430, V.A.C.S. defines libel:

“A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury.”

The Legislature subsequently provided that certain matters should be deemed privileged and not be made the basis of any action for libel. The first privileged matter is a fair, true and impartial account of the proceedings in a court of justice. Another is a reasonable and fair comment or criticism of the official acts of public officials and of other matters of public concern published for general information. Secs. 1 and 4, Art. 5432, V.A.C.S.

The Commission of Appeals, in Southern Publishing Co. v. Foster, 53 S.W.2d 1014, clearly enunciated the rules applicable for a decision of cases of this kind. The court said:

“The rule is established that, when the language used in the publication is ambiguous so that extrinsic evidence is needed to determine its character as to its being actionable or not actionable, if a jury is demanded to try the cause, it is the duty of the court to submit to the jury, under proper instructions, the issue as to whether or not the language used is libelorts. (Citing cases.)”

The court continued:

“On the other hand, if the language used in the matter published is clear and unambiguous and manifestly wanting in a defamatory meaning and shows on its face that it is not libelous, it is the duty of the court to so construe the language. In determining the question whether the publication was libelous or not, the words used in the publication must be construed as a whole, giving to all the words contained therein their ordinary meaning as read and construed by persons of ordinary intelligence. (Citing cases.)”

The court continued and citing Newell, Slander and Libel (4th Ed.) page 291, said:

“Where the words can bear but one meaning, and that is obviously not defamatory, no innuendo or other allegation in the pleadings can make them so, and no action lies. No parol evidence is admissible to explain the meaning of ordinary English words, in the ’ absence of special circumstances showing that the words do not bear their usual signification. ‘It is not right to say that a judge is to affect not to know what everybody else knows — the ordinary use of the English language.’ ”

An excellent summary of the rules relating to the function of the court and the jury in a case of this kind is found in Restatement of the Law, TORTS, Sec. 614, Page 304, as follows:

“In the determination of the question whether a given communication is defamatory, two questions may arise: first, whether the communication reasonably conveyed the meaning ascribed to it by the plaintiff (see § 563), and, second, whether such meaning is defamatory in character (see § 559). Under the rule stated in this Section, the court determines whether the communication is capable of bearing the meaning ascribed to it by the plaintiff and whether the meaning so ascribed and carried is capable of being defamatory. If the court decides against the plaintiff upon either of these questions, there is no further question for the jury to determine and the case is ended. If, on the other hand, the judge decides that the communication is capable of bearing a meaning which may reasonably be regarded as defamatory, there is the further question for the jury, whether the communication was in fact understood by the recipient thereof in a sense which made it defamatory.”

These rules have been reannounced by our Supreme Court in Fitzjarrald v. Panhandle Publishing Co., 149 Tex. 87, 228 S.W.2d 499, wherein the court again says that whether a publication is privileged or not is generally a question of law for the court to determine. If the language is not ambiguous, or where the facts and circumstances surrounding the publication are undisputed, it is for the court to determine whether or not it was privileged. Also, said the court, in passing upon the language complained of as libelous, it must be considered in the light of all the facts and circumstances under which it was used. See also 36 Tex.Jur.2d, Secs. 6 and 26, Libel and Slander.

In the light of these well established rules we turn now to consider appellants’ principal contention on this appeal, which is that the use of the word “feud” and the statement that appellants had filed a suit for damages against the Town of Highland Park and their neighbors constituted a legal cause of action for libel. Appellants contend both in brief and in oral argument that the publication was ambiguous and therefore within the rule which required such ambiguity to be submitted to a jury. We find ourselves unable to agree with appellants as to any of their contentions.

Webster’s New International Dictionary, 2nd Edition, defines the word “feud” as follows:

“1. Enmity; hostility. 2. A contention or quarrel; bitter mutual ill feeling and hostility * *

In this ordinary meaning of the term “feud” one can only reasonably conclude that appellants had a quarrel with the Town of Highland Park and their neighbors. The word does not connote an evil meaning, per se. We cannot conceive that such an ordinary word, used commonly in everyday conversation, could result in the mischief denounced by our statutes or claimed by appellants. The factual background of this case is not new to this court. In 1955 we had occasion to review the long history of litigation between appellants and the Town of Highland Park in the case of Newton v. Town of Highland Park, Tex.Civ.App., 282 S.W.2d 266. There, in commenting upon the factual background of the litigation, we said.

“This controversy resembles the Hundred Years War in that it has gone on intermittently and bitterly for a long time.”

Thereafter, in a lengthy opinion, we reviewed the longstanding controversy between the parties now before this court. These matters are public knowledge for many years and cannot reasonably be said to cause surprise or concern or to subject appellants to ridicule or contempt among their friends and neighbors.

Even assuming the fact that the allegation concerning appellants’ $30,000 suit against their neighbors was untrue, which it undoubtedly was untrue, such publication, within the above rules, cannot be said to be of such a nature as to subject appellants to disgrace and contempt. There is nothing inherently wrong in the action of one neighbor suing another neighbor. This is especially true in view of the long history of litigation referred to and explained in detail in our previous opinion in Newton v. Town of Highland Park, supra.

One of the most recent cases which discusses the applicable rule is Rawlins v. McKee, Tex.Civ.App., 327 S.W.2d 633, err. ref. n. r. e., in which the publication referred to plaintiff as a “radical” and “left-winger”. Plaintiff’s petition was dismissed, as in this case, and the appellate court, in affirming such action held that such reference to plaintiff, even if untrue, was not libelous, as a matter of law, under Article 5430, V.A.C.S., since such language does not expose plaintiff to public hatred, contempt, or ridicule, or impeach the honesty, integrity, or virtue, or reputation of plaintiff. The court said:

“It is universally recognized that an appellation may be quite false, abusive, unpleasant and objectionable to the person designated without being defamatory. * * * In Texas, of course, not all defamations necessarily come within the definition of a ‘libel’ under Art. 5430. It must also have the drastic results described therein.”

After careful consideration of the allegations in appellants’ pleading we have concluded that the language complained of is not libelous within the meaning of Article 5430, V.A.C.S. We also conclude that the language is unambiguous and therefore there .is no basis for the introduction of explanatory evidence before a jury. Snider v. Leatherwood, Tex.Civ.App., 49 S.W.2d 1107; Houston Chronicle Publishing Co. v. Thomas, Tex.Civ.App., 262 S.W. 243; Gartman v. Hedgpeth, Com.App., 138 Tex. 73, 157 S.W.2d 139, 138 A.L.R. 666; Herald-Post Publishing Co. v. Hervey, Tex.Civ.App., 282 S.W.2d 410; Allen v. Houston Chronicle Publishing Co., Tex.Civ.App., 109 S.W.2d 1135; Daughtry v. Blanket State Bank, Tex.Civ.App., 60 S.W.2d 272; Fuson v. Abilene Gas & Electric Co., Tex.Civ.App., 219 S.W. 208; and Deen v. Snyder, Tex.Civ.App., 57 S.W.2d 338.

Cases relied upon by appellants, such as Easley v. Express Publishing Co., Tex.Civ.App., 299 S.W.2d 782; Moore v. Leverett, Tex.Com.App., 52 S.W.2d 252; and Root v. Republic National Bank of Dallas, Tex.Civ.App., 337 S.W.2d 709, are all easily distinguishable. In each of those cases the court decided that the language used was ambiguous and required explanatory meaning which necessarily called for a jury determination.

Even if it could be said, arguendo, that the allegations in the publication were ambiguous, yet appellants cannot prevail for the simple reason that appellants’ original petition fails to set forth any facts explaining the language used which might cause disgrace and contempt among their friends and neighbors. This court in O’Connor v. Dallas Cotton Exchange, Tex.Civ.App., 153 S.W.2d 266, quoting from 33 Am.Jur., Sec. 241, pages 219-221, said:

“Where the statement complained of as defamatory is indirect in its terms and doubtful in its meaning, the complaint must, in order to state a cause of action, contain appropriate allegations, commonly known as the innuendo, designed to show the meaning of the publication and bring out its defamatory character and effect, by reference to the antecedent matters contained in the inducement and the colloquium.”

See also Henderson v. Credit Clearing House, Tex.Civ.App., 204 S.W. 370, and Fessinger v. El Paso Times Co., Tex.Civ.App., 154 S.W. 1171.

We are also of the opinion that the publication complained of, when viewed in its appropriate setting, is clearly within the rule of privilege announced in Sec. 4 of Art. 5432, V.A.C.S. allowing a reasonable and fair comment or criticism of the official acts of public officials and of other matters of general public concern published for general information. Ray v. Times Publishing Co., Tex.Com.App, 12 S.W.2d 165; Express Publishing Co. v. Keeran, Tex.Com.App., 284 S.W. 913; Caylor v. Nunn, Tex.Civ.App, 235 S.W. 264; and Lundberg v. Brownsville Herald Publishing Co, Tex.Civ.App., 66 S.W.2d 375.

Finding no error, all of appellants’ points are overruled, and the judgment of the trial court is affirmed.

Affirmed.


text:
    Laura F. NEALY et al., Appellants, v. FIDELITY UNION LIFE INSURANCE COMPANY, Appellee.
    No. 16314.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 28, 1964.
    Locke, Purnell, Boren, Laney & Neely and John D. Crawford, Dallas, for appellants.

      Jackson, Walker, Winstead, Cantwell & Miller, L. P. Bickel and Gerald W. Benson, Dallas, for appellee.
   WILLIAMS, Justice.

Wrongful death action. Article 4671 et seq., Vernon’s Ann.Civ.St., and Art. 16, § 26, Vernon’s Annotated Constitution of the State of Texas. On May 5th, 1961 Willie Fred Nealy was shot and killed by Earl S. Swinney, an armed guard, in the lobby of the Fidelity Union Life Insurance Company Building in the City of Dallas, Texas. This action was instituted by the surviving wife and minor children of the deceased, seeking actual and exemplary damages against both Fidelity Union Life Insurance Company and Earl S. Swinney, who was alleged to have been acting within the course and scope of his employment for such company. The defendant Swinney, though duly served, filed no answer but appeared in person and participated in the trial of the case. The trial was before a jury and at the conclusion of the evidence the court submitted the case on special issues. In response to these issues the jury found (1) that the action of Swinney in shooting the deceased, Nealy, was not wrongful; (2) that the action of Swinney in shooting Nealy did not grow out of the performance by Swinney of his duties as an employee of the defendant Fidelity Union Life Insurance Company; (3) that the defendant Fidelity Union Life Insurance Company failed to properly train Swinney as an armed guard; (4) that such failure was negligence; (5) that such negligence was a proximate cause of the death of Nealy; (6) that at the time the defendant Fidelity Union Life Insurance Company hired Swinney he was not an unfit person for the duties entrusted to him as an armed guard; (9) that the act of Swinney in shooting Nealy was performed as a resentment of insult, or the furtherance of personal animosity of Swinney towards Nealy; (10) that the actual damages sustained by the widow as a result of the death of her husband was $1,500; (.11) that the minor children sustained actual damages in the sum of $6,300 as a result of the death of their father; and (12) no exemplary damages should be paid by the defendant Fidelity Union Life Insurance Company.

The trial court, upon motion of the defendant Fidelity Union Life Insurance Company set aside and disregarded the answers of the jury to Special Issues 3, 4, and 5, noted above, and rendered judgment that plaintiffs take nothing against either of the defendants. From this judgment plaintiffs appeal, assigning twelve points of error. We find no reversible error reflected in this record and therefore affirm the judgment of the trial court.

By their first point of error appellants complain of the action of the trial court in refusing to grant them judgment against the defendant Swinney who, though being duly served, failed to file an answer. Rule 240, Texas Rules of Civil Procedure provides that where there are several defendants, some of whom have answered or have not been duly served and some of whom have been duly served and have made default, an interlocutory judgment by default may be entered against those who have made default, and the cause may proceed or be postponed as to the others. Appellants did not request the court to award to them an interlocutory default judgment against the non-answering defendant Swinney, but proceeded to trial in the ordinary fashion. The record reveals that Swinney appeared in person and participated in the trial of the lawsuit, though not represented by an attorney. He was called by appellants to testify as an adverse party. Appellants’ failure to demand an interlocutory default judgment against Swinney was acknowledged by appellants’ attorney during the trial of the case. The case was submitted to the jury on issues relating both to Swinney and to the corporate defendant. The judgment recites that though Swinney was duly served, he did not file an answer, but did appear in person, though not represented by counsel. Under the peculiar circumstances evident in this record we are of the opinion that appellants waived their right to demand a default judgment against Swinney.

In 33 Tex.Jur.2d, § 126, Page 647, the rule is announced:

“By proceeding to trial without taking advantage of the defendant’s failure to answer the plaintiff waives his right to a default judgment.”

Our court had occasion to review the authorities on this question in Foster v. L. M. S. Development Co., Tex.Civ.App., 346 S.W.2d 387, wherein Chief Justice Dixon, speaking for this court, said:

“Smith in person appeared, participated in the trial as a party, and gave his testimony. Even if no written answer of any kind had been filed in his behalf, appellants under the circumstances have waived their right to take advantage of his failure to file a written answer. Shaw v. Whitfield, Tev.Civ.App., 35 S.W.2d 1115; Guaranty State Bank v. Brill, Tex.Civ.App., 268 S.W. 260, 265; W. T. Rawleigh Medical Co. v. Mayberry, Tex.Civ.App., 193 S.W. 199; Rules 67 and 90, Texas Rules of Civil Procedure; 25 Tex.Jur. 393 and 401.”

Having proceeded to trial without requesting an interlocutory default judgment, appellants impliedly consented to the procedure followed by the trial court, both in the introduction of evidence and the submission of issues to the jury, and hence any right to a default judgment was waived.

By their second and third points appellants contend that even though the jury found that the shooting of Nealy by Swin-ney was not wrongful and that Swinney was not acting in the course of his employment for the corporate defendant at the time he shot Nealy, the court should have awarded appellants judgment against appellee, Fidelity Union Life Insurance Company, based upon the jury’s finding in response to Special Issues Nos. 3, 4, and 5 to the effect that such corporate defendant was negligent in failing to properly train its armed guard, Swinney, and that such negligence was a proximate cause of Nealy’s death. They argue that the court was not justified in setting aside and disregarding the jury’s answers to Issues 3, 4 and 5 in that even though the servant may be excused from liability the corporate master may be legally held liable for its failure to perform a non-delegable duty. Kirby Lumber Co. v. Chambers, 41 Tex.Civ.App. 632, 95 S.W. 607; Fleming v. Texas Loan Agency, 87 Tex. 238, 27 S.W. 126, 26 L.R.A. 250; American Express Co. v. Parcarello, Tex.Civ.App., 162 S.W. 926; Fletcher v. Baltimore & Potomac R.R. Co., 168 U.S. 135, 18 S.Ct. 35, 42 L.Ed. 411, and Restatement of the Law of Torts and Negligence, Vol. 2, §§ 317 and 392.

The record contains testimony to the effect that at the time Swinney was employed by the Fidelity Union Life Insurance Company he was not given any special training as an armed guard. Even so we are of the opinion that the action of the trial court in setting aside and disregarding Issues 3, 4 and 5 was proper and that appellants’ contention must be overruled for several reasons. First, we agree with ap-pellee that Special Issues 3, 4 and 5 are immaterial under the facts of this record and the answers of the jury to such issues cannot support a judgment for appellants. The controlling issue, No. 3, inquired as to whether “defendant failed to properly train Earl Swinney as an armed guard.” The testimony reveals that Swinney had been employed by the insurance company for eight years prior to the date of the shooting. The inquiry, therefore, concerned some failure on the part of the company to do something many years prior to the incident made the basis of this litigation. Moreover, the issue inquired as to Swinney’s training as an armed guard and it necessarily follows that the act complained of by appellants against Swinney would have to flow from his act as “an armed guard.” The jury found that Swinney was not acting as an armed guard at the time he killed Nealy. The jury further found that Swinney was not acting wrongfully when he killed Nealy. Therefore, it is obvious that the jury finding concerning some failure on the part of the corporation to train Swinney as an armed guard becomes wholly immaterial inasmuch as the alleged wrongful act did not flow from any action on the part of Swinney while performing the duties as an armed guard. There is no evidence in this record •of any other act committed by Swinney which would convey notice to the employer as to his alleged inefficiency as an armed guard. This fact added to the immateriality of the issues complained of, as reflected in the case cited by appellants, Fletcher v. Baltimore & Potomac R.R. Co., 168 U.S. 135, 18 S.Ct. 35, 42 L.Ed. 411, wherein the United States Supreme Court said:

“ * * * negligence on the part of the company in failing to prevent the act could not probably be shown by proof of a single act of that kind, even though damage resulted, where there was nothing to show the company had any reason to suppose the act would be •committed. Negligence on the part of the company is the basis of its liability, •and the mere failure to prevent a single .and dangerous act, as above stated, would not prove its existence.”

See also Walton v. New York Central Sleeping Car Co., 139 Mass. 556, 2 N.E. 101, and Kelly v. Louisiana Oil Refining Co., 167 Tenn. 101, 66 S.W.2d 997. Such issues being immaterial to the ultimate liability of the corporate defendant, the trial court was justified in disregarding same. Whittenburg v. Miller, 139 Tex. 586, 164 S.W.2d 497; 41-B Tex.Jur., § 589.

Another obvious reason why the trial court’s action was correct is that even if it could be argued that Issues 3, 4 and 5 were material yet there is no evidence in this record to support the answer of the jury to Special Issue No. 5 to the effect that the failure to properly train Swinney as an armed guard was a proximate cause of Nealy’s death. Even if it could be said that appellee owed a duty to properly train Swinney as an armed guard and that its failure to do so was negligence, yet such negligence could not, as a matter of law, be a proximate cause of Nealy’s death unless the consequence of the negligence was reasonably foreseeable by the appellee. In Davidson v. Methodist Hospital of Dallas, Tex.Civ.App., 348 S.W.2d 400, we had occasion to review the case and to reiterate the rule that a party is only responsible for a consequence which is probable according to ordinary and usual experience. See also 17 Tex.Jur.2d § 14, “Death by Wrongful Act”; Hill v. Sabine Pipe & Supply Co., Tex.Civ.App., 272 S.W.2d 769. Moreover, it appears affirmatively in this case that a new and independent cause, in the form of Nealy’s act and conduct, which will be hereinafter more fully discussed, intervened to destroy the causal connection between any negligence on the part of the employer and the ultimate act resulting in Nealy’s death. For a review of the authorities dealing with this point see our opinion in Compton v. American Airlines, Inc., Tex.Civ.App., 348 S.W.2d 427; 40 Tex.Jur.2d, “Negligence”, §§ 27 and 28.

Inasmuch as appellants’ remaining points, 5 through 12 inclusive, are “no evidence” or “insufficient evidence” points assailing the jury’s answers to Issues 1, 2 and 9, thereby requiring us to give careful consideration to the testimony as a whole, we deem it desirable to set forth the essential portions of such testimony dealing with these issues.

Willie Fred Nealy, prior to May 5, 1961, was an employee of the Fidelity Union Life Insurance Company as a porter. He had drawn his pay check just prior to the shooting on May 5, 1961 and there is evidence that he was no longer an employee at that time. Earl S. Swinney was an employee of Fidelity Union Life Insurance Company as an armed guard, having held that position for eight years prior to May 5, 1961, and on the night of that date he was stationed in the lobby of the Fidelity Union Building performing his duties as such guard. Swinney was sixty-one years of age, five feet six inches in height, and weighed approximately 135 pounds. He had been disabled and was drawing twenty percent government disability due to an arthritic spine. His spine was stiffened or ossified and he also suffered pain in his left arm and shoulder for which he received treatment from time to time. His disability resulted in his inability to stand completely erect. Nealy was twenty-nine years of age, six feet tall, and weighed 185 to 190 pounds. He had an athletic build and was in good health. The shooting occurred in the lobby of the Fidelity Union Building. Swinney testified that he first saw Nealy around six P.M. when he took Nealy to the basement in the elevator. The next time he saw him Nealy was standing near a buffer in the hall near the lobby and at that time was loud and boisterous and using vulgar language. Swinney testified that he asked Nealy to quit using the filthy language and Nealy disappeared but later returned to the lobby where he again used loud, vulgar and profane language. Swinney again warned him about his conduct and Nealy disappeared but again returned to the lobby using profane and loud language and demanded that Swinney get his hat from a closet. Swinney went with Nealy to a wire closet, unlocked the door, and obtained Nealy’s hat from the closet. While in the closet Nealy struck Swinney and knocked him against the wall. Swinney apparently tried to get away from Nealy and went up the hallway but Nealy followed him and grabbed him, dragging him out to the main lobby of the building. Swinney testified:

“Question: All right, then, you both turned and walked together; was he on your right or on your left?
“Answer: He was on my left.
“Question: All right, he would be on this side? (indicating). Now, let’s walk straight down; we are going down the hall, now, and you walked here with him, Mr. Swinney (indicating) ; were any words spoken as you walked down that hall ?
“Answer: He said, ‘Give me my God damned hat.’ ”
* * * * * *
“Question: All right, and you unlocked the door ?
“Answer: Unlocked the door — when I unlocked it, he hit me and knocked me against that back wall.
“Question: When you unlocked it?
“Answer: Yes.
“Question: And then did he reach in and get his hat?
“Answer: He got his hat with one hand and grabbed me and dragged me halfway up that corridor.”
* * sjc * * *
“Question: Did he grab you halfway up the corridor?
“Answer: Yes, after he got me against the wall, he grabbed me again and dragged me both.
“Question: Out to the main lobby ?
“Answer: Yes, sir.
“Question: Okey; did you break loose from him?
“Answer: I broke loose and he grabbed me again and I told him to leave me alone and stay away from me.”
******
“Question : All right, you were backing toward Pacific ?
“Answer: That’s right.
“Question: And he kept pursuing you, kept coming at you?
“Answer: Yes, sir.
“Question: And then what did you do?
“Answer: I shot him.
“Question: All right, did you have any argument at all about getting into that wire closet?
“Answer: No argument getting into it. The argument started over grabbing the hat and shoving me around.”
:Ji # j|c ífc ijs
“Question: (By Mr. Bickel) Now, then, about this disorder, he wasn’t being disorderly at the time he came up to get his hat; was he directing his remarks to anybody except you, Earl Swinney — I mean when he came up to get the hat ?
“Answer: When he come up to get the hat, it was directed at me.
“Question: And was the rest of his grabbing and following and everything like that directed to you, you alone, Earl Swinney?
“Answer: That’s correct.”

The only other witness to this incident was James O. Donaldson, also an employee, and a friend of Nealy. He testified he did not hear any profanity or cursing and did not see Nealy strike Swinney or drag him at any time. Upon cross examination he admitted he did not actually see everything that transpired prior to the time he heard the shot which killed Nealy.

The court submitted Special Issue No. 1 to the jury which inquired as to whether or not the shooting of Nealy by Swinney was wrongful. In connection with this issue the court gave to the jury a lengthy definition of the term “wrongful” which included the element of self defense and instructed the jury that if they believed that by the acts of Nealy it reasonably appeared to Swinney, viewed from his standpoint alone, that Nealy was then about to attack him in such a manner as to cause his death or serious bodily injury, or was reasonably calculated to create in the mind of Swinney a reasonable expectation or fear of death or serious bodily injury, that such killing would not be wrongful. The jury found that the killing was not wrongful. They also found in answer to Special Issue No. 2 that when Swinney shot and killed Nealy he was not acting as an employee of Fidelity Union Life Insurance Company, and in answer to Special Issue No. 9 that the act of Swinney in shooting Nealy was performed as a resentment of insults and in the furtherance of personal animosity of Swin-ney toward Nealy.

We have carefully considered this, testimony, as well as the entire record,, pursuant to the now familiar rule announced! by our Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, and! having done so we cannot say that there-is no evidence to support the jury’s answers, to the issues in question. Nor can we say that the answers of the jury to these issues were so contrary to the great weight and! preponderance of the evidence as to be manifestly wrong or unjust. Accordingly, appellants’ Points 5 through 12 inclusive, are overruled.

Finding no error demonstrated in this, record we affirm the judgment of the trial, court.

Affirmed.


author: DIXON, Chief Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Laura E. TAYLOR et vir, Appellees.
    No. 16307.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 7, 1964.

      Leachman, Gardere, Akin, Porter & De-Hay and Edward E. Crowell, Jr., Dallas, for appellant.
    Wilson & Menaker, Dallas, for appellees.
   DIXON, Chief Justice.

Liberty Mutual Insurance Company has appealed from a judgment awarding Laura E. Taylor, joined pro forma by her husband, James E. Taylor, workmen’s compensation for total permanent disability.

In its first point on appeal appellant says that the court erred in refusing to strike the testimony of Dr. Herbert Kresh because the doctor based his opinion in part upon the history of the case as given him by appellee Laura E. Taylor. Dr. Kresh, the only medical witness to testify, did not treat ap-pellee. He did examine her at the request of her attorney and thereafter testified in her behalf.

Before the doctor testified hospital records of appellee’s treatment and surgery had been introduced in evidence without objection. These records included the case history given by appellee when she entered the hospital.

Dr. Kresh testified that he went over all the hospital records, examined appellee and also took a case history from her himself. Objection was made by appellant to the doctor’s referring to any case history, whether taken by himself or obtained from the hospital records. The court sustained the objection with reference to the case history taken by Dr. Kresh, but permitted him to refer to anything in evidence, including the hospital records.

The doctor was then asked a lengthy hypothetical question which concluded as follows:

“Based upon all of these things and any information that is contained in those three hospital records which are in evidence before you, Doctor, and based upon your actual examination of this woman, Doctor, I ask you if you have an opinion as to whether or not the incident that I related of January 18, 1962 was or was not a producing cause of the difficulties and disabilities such as they may be that Mrs. Taylor now has or has had since that date ?”

To this question the doctor gave an affirmative answer.

On cross examination Dr. Kresh stated that in giving his opinion from the witness stand he had taken into consideration the history of the case as told to him by the patient. No objection or motion to strike was made at the time, but a motion to strike was made later.

It is well settled that an examining physician, as distinguished from a treating physician, may not testify as to the condition of the patient if his opinion is based upon the history of the case as related to him by the patient. However, if an examining physician does not rely upon the statement of the patient other than to determine what part of the body is to be examined, but bases his opinion entirely upon his objective finding, his testimony is admissible. Texas Employers Ins. Ass’n v. McMullin, Tex.Civ.App., 279 S.W.2d 699, 701-702, and cases there cited.

The situation in our case at this point in the proceedings was that Dr. Kresh’s testimony was open to the objection that he had based his opinion in part upon the case history told to him by the patient. But on redirect examination he gave testimony which changed the situation.

We quote from his testimony on redirect examination:

“Question: Doctor, * * * in answering my questions * * * were you taking into account the history as given to you by Mrs. Taylor or the history as you got it from the actual examination and from the hospital records ?
“Answer: Both, actually.
“Question: All right now, for the moment leaving out the history as given to you by the patient, would there be any substantial difference in any respect about your testimony based only upon the history contained in the hospital records?
“Answer: No, sir, there would be no difference, they are basically the same.
“Question: Would your answer to my question, in particular the hypothetical question, have been the same, leaving out the history of the patient and taking into account only the history as shown in the hospital records and the actual examination of Mrs. Taylor?
“Answer: It would still be the same.
“Question: And would your answer to my question about the disability based upon the definition I gave you— based upon that particular definition, would that remain the same?
“Answer: It would remain the same.”

Immediately after the redirect testimony of the doctor had been concluded appellant moved to strike his opinion testimony. The motion was overruled.

From the above quoted testimony it will be seen that the doctor on redirect examination testified that his opinion would be the same if, leaving out the history of the case as told to him by the patient, he based his opinion only on the history as shown in the hospital records and the actual examination of Laura E. Taylor. This we believe made the doctor’s opinion testimony admissible. The court properly overruled the motion to strike. Texas Employers Ins. Ass’n v. Hall, Tex.Civ.App., 295 S.W.2d 478, 480-481, ref. n. r. e.

Appellant says that the doctor should not be permitted to take into consideration the ■case history as shown in the hospital records any more than he should be permitted to take into consideration the case history as told to him at appellee’s examination. Appellant contends that the doctor should not be permitted to testify to an opinion based on either case history.

We do not agree with appellant. A patient is sometimes sent to a doctor for examination only, not treatment, for the purpose of enabling the doctor later to testify for the patient. Under such circumstances a patient might be tempted to exaggerate or even prevaricate in narrating his case history. For that reason a case history given to the examining doctor is excluded, since it is likely to be merely a self-serving declaration.

On the other hand, a case history given to a doctor by a patient entering a hospital for treatment and surgery will be given greater credence, for the patient will almost surely be interested mainly in getting well and there is very little motive for a false or questionable case history.

We overrule appellant’s first point on appeal.

In its second point, appellant complains of the court’s overruling its objection to testimony by the witness Frances Toon regarding statements made by appellee.

The occurrence of any injury to appellee on the occasion in question was a contested matter. Appellee offered the testimony of the witness Mrs. Toon to the effect that while riding to work with appellee on Friday and Saturday following the Thursday, January 18, 1962 when the alleged injury occurred, appellee told Mrs. Toon that she had hurt her back sitting in a high chair while on the job. This statement was made prior to the time she entered Baylor Hospital on January 31, 1962. Objection was made by appellant that the question which elicited the above testimony called for hearsay.

Appellee justifies the question and the answer of the witness on the ground the declarations were admissible in answer to appellant’s recent charge of fabrication on the part of appellee.

The record shows that after appellee had been in Baylor Hospital for several days the question came up as to who was going to pay hospital expenses. Appellee was covered by group insurance policies from Dresser Industries, Inc., her employer, which policies did not include coverage for injuries sustained in the course of employment. Appellant in examining appellee’s husband brought out this testimony:

“Question: And, isn’t it a fact, Mr. Taylor, that you and your wife had already notified the hospital that under these policies that have been introduced into evidence, number 14 and IS, that that was what was going to take care of the hospital bill?
“Answer: Yes, sir.
“Question: And isn’t it a fact that when you found out that that wasn’t going to work that you and your wife then decided that you would call the company, Dresser, and would tell them you had been injured on the job — or, she’d been injured on the job?
“Answer: No, sir.
******
“Question: And when you went to the hospital and took these policies with you, it was with the idea in mind that you had an injury here that did not occur on the job and would be covered by these policies?
“Answer: No, sir.
“Question: You deny that?
“Answer: Yes, sir.”

It seems to us that the above cross examination by appellant is in effect a charge that appellee and her husband fabricated their claim that her injury occurred on the job. This is especially true in the light of the subsequent testimony of appellant’s witness Dorothy Mitchell, a fellow worker of ap-pellee’s at Dresser Industries, Inc., who testified appellee did not complain or say anything while she was on the job indicating she had hurt herself while she was on the job.

Our courts have held that where a defendant introduces evidence that plaintiff failed to mention an alleged injury at a time and under circumstances when he could reasonably have been expected to do so, the plaintiff may introduce testimony-showing that he did mention his injury at or near the time of the injury. When such a situation is presented testimony of the statements of a plaintiff is not considered hearsay and is admissible. Lewy v. Fischl, 65 Tex. 311; Houston & Texas Central Ry. Co. v. Fox, 106 Tex. 317, 166 S.W. 693; Aetna Ins. Co. v. Eastman, 95 Tex. 34, 64 S.W. 863; Texas Employers Ins. Ass’n v. Thames, Tex.Civ.App., 236 S.W.2d 203. We think the situation in the instant casa-comes within the rule.

There is another reason why we 'believe the admission of the testimony of the witness Toon is not reversible error. After appellant had in effect accused appel-lee and her husband of fabricating her ■claim that she was injured on the job, her busband testified concerning appellee’s arrival at her home on the afternoon of the ■day of her injury. We quote from his testimony:

“Well, she drove up into the drive. I was sitting on the divan next to the window and it took her unusually long to come in. I got up and went to the ■door and went partly out to the car, I don’t know whether I went partly or .all the way, but I remember helping her in the house and she said she had hurt her hack while sitting out there on those high chairs." (Emphasis ours.)

No objection was made to the introduction of the above testimony. Later the •testimony of Mrs. Toon was offered and ¡admitted. Even if we were to hold that it was error to admit Mrs. Toon’s testimony (we do not so hold) we would also hold that it is harmless error. The Toon testimony is really only cumulative of what appellee’s husband had already testified to without objection. Carrick v. Hedrick, Tex.Civ.App., 351 S.W.2d 659; Perez v. San Antonio Transit Co., Tex.Civ.App., 342 S.W.2d 802; State by and through City Council of Daingerfield v. Walker, Tex.Civ.App., 334 S.W.2d 611; Vrazel v. Bieri, Tex.Civ.App., 294 S.W.2d 148; Texas Employers Ins. Co. v. Moore, Tex.Civ.App., 284 S.W.2d 175; Rule 434, Texas Rules of Civil Procedure.

Appellant’s second point is overruled.

The jury gave affirmative answers to issues which inquired whether (1) Laura E. Taylor sustained an injury on or about January 18, 1962; (3) she sustained any total incapacity following the injury; (4) the injury was a producing cause of the total incapacity; (5) the beginning date of such total incapacity was January 29, 1962; and (6) the total incapacity will be permanent. The jury gave a negative answer to Special Issue No. 8 which inquired whether appellee had sustained any partial incapacity.

In its third, fourth and fifth points, its ninth to seventeenth points inclusive, and its twentieth to twenty-third points inclusive, appellant contends that there is either no evidence, or there is insufficient evidence to support the jury’s answer to the above special issues. The nature of these points requires us to review the material evidence bearing on the questions raised in the points.

Appellee had been injured before. In December of 1959 she had sustained an injury to her back and side while employed by Sears Roebuck & Company, but continued to work for about ten months thereafter. However, her injury grew worse with the result that in October 1960 she was hospitalized for three weeks. In August 1961 she returned to work at Sears Roebuck & Company, but after one week her employment was terminated due to a general layoff. In December 1961 appellee compromised her workmen’s compensation suit for this first injury. The jury in the present case attributed 35 percent of appel-lee’s present total permanent disability to this prior injury.

In October 1961 through the Texas Unemployment Office appellee, after successfully passing a company physical examination was employed by Dresser Industries, Inc. Her work was testing transformers. Her back did not pain her, though she did suffer some discomfort. She had resumed her normal activities. She changed from her regular job three or four days prior to the date of her second injury. She went to work in the production department where she was engaged in taping coils.

On January 18, 1962 she sustained the alleged injury which is the basis of the present suit. She had been given a chair which was too high for her. Her feet would not touch the floor. She was in a strain all day. Some time after the mid-afternoon “break” she pushed her chair out from the bench and “was balancing myself kind of on my toes to try to get some— in a comfortable position and this pain hit me in my right low back and ran all the way down my legs.” She “was sitting on the edge of the chair balancing myself with my toes, * * *. I was just sitting up there with my legs dangling and I don’t know how long * * *, the pain hit me in my back and run down my leg and it was as if a tight band was around the calf of my leg and I had to untie both of my shoes, the pain went to the top of both feet.” She took two Bufferin tablets and remained in the lounge until she saw it was near quitting time.

She drove home in her own car, but it took a while to get out of the car. Her husband helped her into the house. She told him “she had hurt her back while sitting out there on those high chairs.” She applied some Bengay and took more Bufferin tablets.

She returned to work the following two days, a Friday and a Saturday. She did not work the following Monday and Tuesday because of an ice storm and also because of her severe pain. On Wednesday she went to work, but had to leave after half a day.

On Monday, January 29, 1962 she saw Dr. T. Wiley Hodges, who recommended hospitalization. No room was immediately available so she could not enter the hospital until two days later. She remained in the hospital for a month. During that time she was treated with intravenous medicine twice daily, medication by mouth and hypodermic injections and physical therapy. She was placed in traction. A myelogram was performed. It showed a bilateral defect. She left the hospital February 29, 1962 in a wheel chair.

She re-entered the hospital April 16, 1962. The next day surgery was performed by Dr. Hodges. The diagnosis was “ruptured disc L-4 — 5 with nerve root irritation, left.” Her disc was found to be tense and bulging. An incision was made over the lower part of the sacrum, and spinous processes were removed. A bone graft was obtained from a second incision.

Seventeen days after surgery appellee went home. She stayed in bed six weeks in a metal brace. She wore the brace five and a half months longer and did not dispense with the brace altogether until nine months after surgery. She got somewhat better after surgery, but she still has difficulty with her left side, low left back and left leg. She started getting worse after removing the brace and the pain in her back is worse.

She does very little house work, no laundry, no sweeping or mopping, and has to lie down at intervals during the day and use hot packs twice a day. Her testimony of her difficulties since surgery is supported by the testimony of a neighbor, a maid, her husband and her mother.

Appellant offered no evidence.

The jury found that 65 percent of appel-lee’s total permanent disability was caused by her injury of January 18, 1962.

We are of the opinion that the evidence is sufficient to support the jury’s answers. Appellant’s third, fourth and fifth points and its ninth to seventeenth points inclusive and its twentieth to twenty-third points inclusive, are overruled.

In its sixth, seventh and eighth points appellant says that the court erred (1) in failing to submit an issue requiring the jury to determine whether appellee sustained any incapacity as a result of the alleged injury; (2) in submitting a charge which foreclosed the jury’s finding that appellee sustained no incapacity as a result of the alleged injury; and (3) in commenting on the evidence by submitting a charge which foreclosed the jury from finding that appellee sustained no incapacity of any kind.

Appellant requested submission of an issue inquiring whether appellee’s injury, if any, naturally resulted in her incapacity to work in any degree for any length of time.

The Workmen’s Compensation Act recognizes total incapacity and partial incapacity. Art. 8306, Secs. 10 and 11, Vernon’s Ann.Civ.St. Issues Nos. 3 and 8 as submitted inquired respectively whether appellee sustained any total incapacity or any partial incapacity. We do not consider that these issues comment on the evidence. Appellant’s requested issue would merely have submitted another phase, or a different shade of Issues Nos. 3 and 8 as submitted by the court. Rule 279, T.R.C.P. Appellant’s sixth, seventh and eighth points are overruled.

In its eighteenth and nineteenth points appellant contends that there is no evidence, or there is insufficient evidence, to sustain the jury s answer to Special Issue No. 14. In their answer to this issue the jury found that the reasonable value of medical, hospital and nursing care and facilities for the reasonably necessary treatment of appellee naturally resulting from the injury of January 18, 1962 was $3,675.-50.

Medical, nursing and other bills were introduced in evidence. Appellee testified that the services had been received. When asked whether a charge of $925.00 for treatment and surgery by Dr. T. Wiley Hodges was reasonable, Dr. Kresh testified: “I would say so, that is the usual fee for this type of injury.” When shown other bills Dr. Kresh was asked whether the charges shown were reasonable and necessary. He answered, “Yes, these are standard, routine hospital charges, they are not out of line in any way.”

Appellant’s eighteenth and nineteenth points are overruled.

We find no reversible error in the record. The judgment of the trial court is affirmed.

Affirmed.

       We are aware of the recent ease of Skil-lern & Sons, Inc. v. Rosen, Tex., 359 S.W. 2d 29S, wherein our Supreme Court held that certain testimony was hearsay and was not admissible under the doctrine of prior fabrication. Our present holding is not in conflict with the holding in the Rosen ease as an analysis of the two eases will show.
      (1) In the Rosen case the trial court in the exercise of its discretion excluded the testimony in question. The Court of Civil Appeals reversed the judgment of the trial court. To have affirmed the judgment of the Court of Civil Appeals the Supreme Court would have had to say that the trial court had abused its discretion in excluding the testimony. This the Supreme Court would not go so far as to say. Therefore the judgment of the-Court of Civil Appeals was reversed and. that of the trial court was affirmed.
      An entirely different situation is presented in the instant case. Here the trial judge admitted the testimony in question. To reverse the judgment of the trial court we would have to say that the trial: court abused its discretion in admitting the evidence. Like the Supreme Court in the Rosen case, we cannot say that tlie trial court abused its discretion in its ruling on the challenged testimony.
      (2) In the Rosen case it was the plaintiff herself who initiated and injected the issue of her prior fabrication into the case by testifying that she left the drug store in question without speaking to any employee therein about her injury. The ■defendant had not accused her of remaining silent when she might have been expected to speak. She herself brought out the fact that she remained silent at a time when she might reasonably have been •expected to speak. Then she sought to explain her silence by introducing evi•dence of statements later made by her. 'The Supreme Court held that she could mot take advantage of the exception to the hearsay rule to rebut an inference which ■she raised by her own testimony on direct ■examination.
      Again an entirely different situation is presented in the instant case. Here the ■defendant company in the cross examination of appellee’s husband injected the prior fabrication isstie by accusing plaintiff and her husband of fabricating her story that her injury occurred on the job. The defendant in this ease, appellant here, plainly implied that after the plaintiff, appellee here, had entered the hospital she and her husband learned that the two group policies did not cover her injuries, therefore she then changed her story to bring her case within the workmen’s compensation policy of her employer by claiming she was injured on the job. Under these circumstances plaintiff was entitled to refute appellant’s charges by showing that prior to the time she entered the hospital she had told her husband and the witness Toon that she was injured on the job. This statement was made before the alleged motive to change her testimony arose while she was in the hospital.