author: COLLINGS, Justice.

text:
    CITY OF GARLAND et al., Appellants, v. Talmadge WHITE et al., Appellees.
    No. 3790.
    Court of Civil Appeals of Texas. Eastland.
    May 3, 1963.
    Rehearing Denied May 24,1963.

      Wyatt W. Lipscomb, City Atty., Garland, for appellants.
    Esir Tobolowsky, Dallas, for appellees.
   COLLINGS, Justice.

Talmadge White and his mother, Mrs. Madie White, a feme sole, brought this suit against the City of Garland, a municipal corporation and Danny Flannigan, Bill Mize, and Barry Brewer, who were policemen in said city, seeking to recover for damages to their property and persons including physical pain and mental anguish. Plaintiffs alleged that Mrs. White owned a home in Garland and that her son, Tal-madge White, resided with her; that Tal-madge White owned a pedigreed, registered, three year old male boxer dog; that the named police officer defendants went on the property of plaintiffs without permission as trespassers, without notice or warning and in violation of an ordinance of the city of Garland wilfully and wantonly shot and killed Talmadge White’s boxer dog alleged to have been a household pet, and damaged Mrs. White’s house; that the shots fired by defendants came within three or four feet of where plaintiffs were sitting in their home. The defendants answered by general denial, and specifically alleged that plaintiffs’ large boxer dog was vicious and aggressive and had attempted to attack several residents of the city of Garland; that the defendant police officers were called about the situation and acted in line of their duty for the purpose of protecting the lives of the citizens of the city.

The court found that the city of Garland was as a matter of law not liable and sustained its motion for a summary judgment. The remaining portion of the case was tried before a jury which found that the reasonable cash value of the boxer dog prior to the time it was killed, was $300.00; that $200.00 would compensate Talmadge White for physical pain and mental anguish suffered by him because of said action of defendant police officers; that plaintiffs wilfully permitted the dog to run at large on the occasion and that the failure of plaintiffs to have the dog confined to their premises was negligence and a proximate cause of the occurrence in question. The court granted plaintiffs’ motion to disregard the jury findings that they were guilty of negligence proximately causing such occurrence and entered judgment for Talmadge White for his damages in the sum of $500.00 and for Mrs. Madie White for $75.00, the stipulated damages to her house. Flannigan, Mize and Brewer have appealed.

The evidence shows that Talmadge White has lived in the City of Garland since 1948, with his mother, Mrs. Madie White, who had the house built in 1946 and has lived there since. White is a teacher at the W. W. Samuell High School in the City of Dallas, where he has taught for ten years. He was the owner of the three year old male boxer dog in question. The evidence shows that the dog was registered, pedigreed, and had been with White since it was eleven days old. The evidence indicated that the dog weighed anywhere from 48 to 70 pounds. White testified that the most the dog ever weighed was 48 pounds; that it had been raised in the White house by hand feeding on a bottle and was a pet. White and several witnesses testified that the dog had never shown any vicious tendencies; that it was a pet, was gentle and would never snarl or snap at anybody. However, there was testimony by other witnesses which indicated to the contrary.

On April 1, 1961, officer Mize received a call from Mrs. Vernon Poor at about 11:00 o’clock a. m. concerning the dog and the officer went to her house to investigate. Mrs. Poor testified that the dog came to her yard and charged at her three or four times; that she froze in her tracks; that the dog did not bite her and did not scratch her, and that the only thing he did was to charge at her so that his front feet hit hers and that the impact of the dog’s feet on hers bruised and discolored her foot. She showed the officer a large blue spot on her right ankle. She stated that there was nothing to have kept the dog from biting her if he had wanted to. She stated that she did not see a doctor and did not need medical attention. Officer Mize testified that he found the dog in the front yard of a house behind and to the east of the Poor residence; that some people were standing on the porch of the house but the dog was making no effort to go toward them. He further testified, however, that the dog thereafter made a lunge at two teen-agers and that he, Mize, jerked his squad car into low gear and drove the car between the dog and the teen-agers. Mize then called Officer Brewer, who met him at the police station and they made an effort to get the dog catcher’s equipment and to find the pound truck but were unable to find such equipment or the poundmaster. Mize and Brewer then went back to Belmont Street and again saw the dog. He was standing by a fence between two houses. The dog was not doing anything. He growled but did not charge at them. The defendant, officer Flannigan, then came to the vicinity in a separate police car. All three officers got out of their cars and approached the dog. According to their testimony the closest they came to the dog was between ten and twenty feet. They stated that the dog then made a lunge at Flannigan, but never got closer to Flannigan than about ten feet. At that time Flannigan drew his pistol and fired two shots at the dog. The dog ran about 4½ blocks to the home of plaintiffs and jumped in Talmadge White’s car which was in the driveway with all four doors open. There was no one in the vicinity at the time except officers Mize and Brewer who had followed the dog when it ran home after being shot at by Flannigan. Later several other persons did appear. Flannigan did not follow the dog but went to the home of a Mr. Carter arid borrowed a shotgun. After Flannigan had obtained the shotgun he was called on the radio by officers Mize and Brewer, who told him where the dog was at that time. A few minutes later Flannigan arrived at the White home with the shotgun. Flannigan admitted that Mize and Brewer were waiting in front of the White home and that their purpose in waiting, as well as his purpose in coming with the shotgun, was to kill the dog. Flannigan stated that when he arrived at the White home the dog was in a car, was not growling or barking or doing any harm or damage to any one. Appellant police officers then got out of their squad cars and went on to the White property, advancing toward the dog. They did not attempt to inquire about the dog at the White home. The evidence shows that when appellants advanced toward the dog the dog got out of the car and ran into the White garage getting as far away from the officers as he could. The officers made no effort to pull down the overhead door on the garage or to catch the dog in any way. The evidence shows that the dog was standing in the garage on the step leading into the White house from the garage when appellant Flannigan fired two shots and killed it with the shotgun. The evidence is undisputed that at the time the shots were fired the dog was not making any motion to come toward either of the police officers or toward anyone else; that the dog had not barked or snarled at them from the time the officers got out of their cars until it was killed.

The evidence further shows that the shotgun blast, not only killed the dog, but made several small holes in the door which opened from the house into the garage. Appellees Talmadge White and his mother were having lunch at the time and sitting in the dining room of their home. The dining room juts off behind the garage and adjoins Mrs. White’s bedroom. The bedroom is directly behind the garage and the door from the garage into the house led into Mrs. White’s bedroom. This was the door which the dog was apparently trying to get into at the time it was shot. Ap-pellees testified that some of the bullets hit the door and the side of the garage wall very near to where Talmadge White and his mother were eating.

The evidence is undisputed that appellants made no effort to notify the Whites that they were in the vicinity or intended to take any action concerning the dog; that the Whites did not give appellants permission to come onto their property. Appellants admitted that they did not have such permission.

It was stipulated that the cost of repairing the White’s home because of the shots from the gun amounted to $75.00. White testified that the value of his boxer dog, prior to the time it was killed was $300.00, and the jury so found. White further testified that he became nervous as a result of the action of the defendants in killing his dog under the circumstances related; that he missed time from school and that his school work was affected as a result of appellants’ action. In answer to special issues submitted the jury awarded White $200.00 for physical pain and mental anguish.

Appellants urge numerous points in which they contend, in effect, that the court erred in entering judgment against them; that as a matter of law they are not liable because they were policemen acting in the performance of their official duty; that as such they were exempt from civil liability; that a municipality has within its police powers the authority to control and regulate all animals within its corporate limits for the safety and welfare of its citizens, and that its officers have the right to go anywhere in the city to enforce its ordinances relating thereto, including the entry upon private property; that appellants had the right and duty to pursue an animal running at large and making a nuisance of itself by charging and attacking inhabitants of the city in violation of the ordinances of the city and to continue such a pursuit across private property and to use all force reasonably necessary to stop the violation including the killing of the dog. We cannot agree with appellants’ contention that the court erred in entering the judgment which it did in this case.

Dogs are property and an owner of a dog may recover for its wrongful injury or killing. Although a vicious dog which is a public nuisance may be lawfully killed when it is roaming at large and endangering the safety of persons and property, the general rule is that to justify the killing of a dog in defense of person or property the danger must be imminent and a real or apparent necessity must exist therefor unless there is statutory authority to kill the dog under the circumstances shown. See 3 C.J.S. Animals §§ 213-219, pages 1330 to 1336.

In the instant case no statute or ordinance permitted the killing of the dog under the circumstances shown. The ordinance of the city of Garland did make it a violation for the owner of any animal to permit such creature to run at large within the city or to go upon the premises owned or in possession of any other person within the city. The ordinance provided that any such animal running at large in violation of the ordinance should be impounded in the city pound by the poundmaster or any police officer. There was a further provision that any such animal impounded under any section of the ordinance might be killed by the poundmaster or the police of the city after it had been impounded for a period of three days. There was, however, no provision of the ordinance authorizing the killing of an animal under the circumstances shown in the evidence in this case.

The dog in question had according to the evidence been running at large. However, just prior to the time it was killed, it was not running at large and was not engaged in any act of violence or viciousness. On the contrary, the dog at that time was sitting quietly in Talmadge White’s car which was parked in the driveway on the appellees’ property. When appellant police officers entered upon the White property with the admitted intent to kill the dog it left the car and went into the back end of the garage to escape them. Under the circumstances the police officers had no right to go upon appellees’ property and to kill the dog or to damage appellees’ house by the discharging of the shotgun as shown by the evidence. The court did not err in so holding.

The facts in Cadenhead v. Goodman, 148 Miss. 88, 114 So. 124, are similar in many respects to the facts of the instant case. In that case a person was called by a woman who had been chased by two bulls and responded to the call. He shot the bulls, killing one and maiming the other at a time when the bulls were not engaged in any act of violence or viciousness. It was held that the person shooting the bulls under these circumstances was liable therefor and that the owner was entitled to recover his damages. In so holding the court stated as follows:

“ * * * on ⅛6 testimony of the defendant himself, at the time he shot at Old Jake (one of the bulls), the bull was not engaged in any act of viciousness or violence, or doing any damage to person or property. The two bulls had severely frightened Mrs. Harris, but one may not shoot a valuable domestic animal in punishment of a wrong or damage already committed by the animal, or out of a spirit of vengeance, after the animal has trespassed, even though he might have had the right to shoot the offending animal while engaged in the act.”

Appellants were trespassers upon the land of appellees in that they made entry thereon without appellees’ consent, without right and authority under the law and with the intent to commit an unlawful act. They went upon the premises with the admitted intent to, and did commit an act which was unlawful and injurious to ap-pellees. A police officer, even though engaged in the performance of a public duty, is civilly liable when he acts in a wrongful and illegal manner and is guilty of a trespass. 4 McQuillin on Municipal Corporation page 148; 33 Tex.Jur. 739; Eubanks v. Wood, 304 S.W.2d 567. Appellants were therefore liable for their trespass and wrongful actions. 41-A Tex.Jur. pages 464, 466 and 473.

Appellants further contend that the court erred in entering judgment for appellees because as found by the jury, ap-pellees were guilty of negligence proximately causing the occurrence in question. We cannot agree with this contention. The act of negligence on the part of appellees complained of by appellants was the failure to keep the dog confined to its premises. The authority given to police officers in case an animal is permitted to run at large in violation of the ordinance was to impound such animal and not to kill it until such animal had been impounded for a period of three days. In any event the alleged negligence of appellees as found by the jury was as a matter of law not a proximate cause of the death of the dog under the circumstances shown by the evidence. East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613; Genell, Inc. v. Flynn, 358 S.W.2d 543 (Tex.Sup.Ct.); Dallas Railway & Terminal Co. v. Hendrix, Tex.Civ. App., 261 S.W.2d 610, 612; Hodges Tire Company v. Kemp, Tex.Civ.App., 334 S.W.2d 627, 629; Helms v. Harris, Tex. Civ.App., 281 S.W.2d 770 (Writ Ref. N.R.E.). The action of appellants in killing the dog was admittedly intentional. Contributory negligence is not a defense to an intentional act. Galveston H. & S. A. Ry. Co. v. Zantzinger, 92 Tex. 365, 48 S.W. 563, 44 L.R.A. 553; Moore v. El Paso Chamber of Commerce, Tex.Civ.App., 220 S.W.2d 327 (Ref. N.R.E.); 30-B Tex.Jur. p. 301.

Appellants’ 11th point complains of the action of the court in giving judgment to Talmadge White in the amount of $200.00 for mental pain and suffering. It is contended that the finding of the jury and the judgment in this respect are not supported by the evidence; that the evidence shows only worry, vexation, disappointment, anger and resentment and that the law does not authorize recovery for such condition. Actually, the evidence indicates that White also became very nervous as a result of the action of appellants. White testified that he became nervous, frustrated and that it affected his school work causing him to miss time from school. There was other evidence to the effect that Talmadge White was nervous and upset as a result of appellants’ action. Appellants’ 11th point is overruled. Allison v. Simmons, Tex.Civ. App., 306 S.W.2d 206, (Ref. N.R.E.); Norwood Bldg. v. Jackson, Tex.Civ.App., 175 S.W.2d 262, (Ref. W.M.).

We have considered all points urged by appellants and find no merit therein.

The judgment is affirmed.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    Reece KESLER et al., Appellants, v. John L. MERRITT, Appellee.
    No. 7252.
    Court of Civil Appeals of Texas. Amarillo.
    April 22, 1963.
    Rehearing Denied May 20, 1963.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellants.
    Cade & Bowlin, Lubbock, for appellee.
   NORTHCUTT, Justice.

Reece Kesler and J. O. Kesler and wife, Lizzie Kesler, as plaintiffs, brought suit against John L. Merritt, as defendant, seeking recovery of damages which plaintiffs alleged resulted to plaintiffs’ growing crops of cotton, beans, and peas caused by the spraying by the defendant of a certain herbicide referred to as “Weedone 638.” Plaintiffs J. O. Kesler and wife, Lizzie Kes-ler, own the south half of Section 7, Block M-10 in Castro County, Texas. Plaintiff Reece Kesler was the tenant of plaintiffs J. O. Kesler and wife, Lizzie Kesler, with respect to said south half of Section 7. Defendant Merritt was the operator of and was farming Section 8, Block M-lOa in Castro County, Texas, which Section 8 adjoins on the east the south half of Section 7. During 1960 plaintiffs had growing on the south half of Section 7 approximately 130 acres of cotton, 15 acres of beans, and 2 acres of peas. The defendant, through his employee, on or about July 21, 1960, sprayed some weeds upon his land with a herbicide known as “Weedone 638.” The plaintiffs contended their crops were damaged by the use of the herbicide by the defendant. Plaintiffs alleged the defendant was guilty of negligence in the use of said herbicide in spraying when the wind carried it onto the land and crops of the plaintiffs; that the herbicide was of such nature as was extremely dangerous and injurious to the plaintiffs’ crops and of such nature that it would be carried by wind and atmosphere and would drift with the wind; that the herbicide was of a very volatile nature such that it was easily carried by wind or atmosphere and through evaporation or other processes and would contaminate the atmosphere if left open and exposed to the atmosphere; that defendant used amounts of the herbicide in excess of the amount necessary to accomplish his purpose; that defendant failed to confine the herbicide to his own premises and left in close proximity of plaintiffs’ crops a container containing herbicide open and allowed to escape and carried by wind and atmosphere onto plaintiffs’ growing crops.

The defendant answered denying all of the alleged acts of negligence pleaded by the plaintiffs, especially alleged at the time the herbicide was sprayed by defendant there was a strong wind blowing from the south and west which would have blown any of such herbicide away from plaintiffs’ farm instead of upon it and pleaded that said herbicide was not volatile or gaseous and that it was never evaporated into the air or became reactivated.

The case was submitted to a jury upon special issues. In answer to the special issues the jury found that defendant failed to so use the herbicide as to prevent its reaching the plaintiffs’ growing crops but that such failure was not negligence; that defendant used herbicide in the close proximity to plaintiffs’ growing crops but that same was not negligence; that defendant did not use equipment which released into the atmosphere amounts of herbicide in excess of the amount necessary to accomplish his purpose; that defendant did not use herbicide at a time and place such that the wind and atmosphere would and did carry such herbicide onto plaintiffs’ growing crops; that defendant did not leave a container with herbicide open on defendant’s premises so that same was carried to the plaintiffs’ growing crops and the remaining answers were concerning damages. Judgment was rendered upon the verdict of the jury that plaintiffs recover nothing. From that judgment plaintiffs perfect this appeal.

Hereafter the plaintiffs will be referred to as appellants and the defendant as appellee. The appellants present this appeal upon 45 assignments of error. The first 10 points of error complain of the failure of the trial court to submit to the jury their special requested issues asking the jury whether appellee used an amount of herbicide in excess of the amount necessary to accomplish his purpose and whether appellee failed to mix the herbicide used so that the same would not get on appellants’ growing crops; then followed those issues as to whether there was negligence and proximate cause. The trial court submitted an issue asking whether the defendant used equipment which released into the air amounts of herbicide in excess of that amount necessary to accomplish his purpose and the jury answered “No”. We are of the opinion the court submitted the ultimate issue involved. Naturally, if the herbicide was not sprayed upon appellants’ crops, it would have gotten there only by drifting through the atmosphere onto the crops. Rule 279 of Texas Rules of Civil Procedure provides in part as follows:

“Where the court has fairly submitted the controlling issues raised by such pleading and the evidence, the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issue.”

The trial court submitted the issue asking if appellee failed to use the herbicide as to prevent its reaching appellants’ growing crops. We think the trial court presented the controlling issues covering the issues requested by appellants and here assigned as error under appellants’ first 10 points of error. Where the court fairly submits the controlling issues raised by the pleadings and evidence requested special issues relating only to various shades of the issues submitted are not necessary to be submitted. Smith & Conklin Bros. v. Griffith, 153 Tex. 341, 268 S.W.2d 124

Appellants’ points of error 11-15 complain of the court’s refusal to give appellants’ requested special issue asking whether appellee used and released herbicide at such time and place and in such manner and under such circumstances that same invaded appellants’ premises and the crops and failure to submit negligence and proximate cause in connection with such issues. The court submitted an issue inquiring if defendant used herbicide at a time and place such that the wind and atmosphere would and did carry such herbicide onto appellants’ growing crops. To that issue the jury said “No”. We think the trial court submitted the controlling issue on this phase of the case and was not required to submit other and various phases or different shades of the same issue. Rule 279 T.R.C.P.; Prudential Insurance Company of America v. Tate, 347 S.W.2d 556; Smith & Conklin Bros. v. Griffith, 153 Tex. 341, 268 S.W.2d 124; Texas & N.O.R. Co. v. Sturgeon, 142 Tex. 222, 177 S.W.2d 264.

As we see all of appellants’ points of error 16-30, both inclusive, it is contended the court erred in not giving appellants’ requested special issues involving whether appellee confined the herbicide to his own premises; whether such' failure was negligence and proximate cause; and whether appellee permitted the herbicide to reach appellants’ crops. We think all of these points deal with the same principle as discussed in the preceding paragraph in that the court did not err in refusing to submit the various phases or different shades of the same issue. The court submitted Special Issue No. I as follows:

“Do you find from a preponderance of the evidence that the defendant, in person or through his employee, failed to use the herbicide used as to prevent its reaching plaintiffs’ growing crops?”

The jury said “Yes” but that it was not negligence. We think the court submitted the controlling issue as to the facts sought to be answered. See the above cited cases.

The jury answered Special Issue No. I that appellee failed to use the herbicide as to prevent its reaching appellants’ growing crops and in answer to Special Issue No. I-a that such failure was not negligence. By points 31, 32, and 33 appellants contend there was no evidence to support the jury’s answer to Special Issue No. I-a; that such answer was contrary to the conclusive evidence and was contrary to the overwhelming weight and preponderance of the evidence. The evidence shows the spraying took place on about July 21 when the wind was from the west blowing from appellants’ land toward appellee’s land and in a drift would go away from appellants’ land. Appellant J. O. Kesler testified he and others were in the cotton on August 9 and the cotton looked good and the night of the 9th they had an inch of rain and the wind was from the east and it was on the 11th of August when they first noticed the injury to the-cotton. The undisputed evidence is that the acid here used itself was not volatile. Under this record at the time of the spraying the wind was in the direction to drift the vapor or spray away from appellants’ crops and the acid being non-volatile, it would be necessary that a vapor must arise into the atmosphere at a later time, probably when it rained. We think the jury would be justified in holding in answer to Special Issue No. I-a that appellee could not foresee all these conditions and was not negligent. We think the correct rule here involved has been many times upheld as is shown in Texas Employers’ Insurance Association v. Moore, Tex.Civ.App., 284 S.W.2d 175, where it is stated:

“In reviewing the evidence to determine the question presented, we must be governed by the following well established rule:
“ ‘ “If, discarding all adverse evidence, and giving credit to all evidence that is favorable to the successful party and indulging every legitimate conclusion that is favorable to him, a jury might have found in his favor, then it is to be concluded that there is evidence to support the verdict.” 17 Tex. Jur., Sec. 410, page 910; Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 50S, Syl. 4.’ Aetna Casualty & Surety Co. v. Dickinson, Tex.Civ.App., 266 S.W.2d 427, 428, and Traders & General Insurance Co. v. Durrette, Tex.Civ.App., 258 S.W.2d 346.”

All of appellants’ remaining points of error present the same contention as to no evidence; contrary to the conclusive evidence and contrary to the overwhelming weight and preponderance of the evidence as was presented under points 31, 32, and 33 only that the remaining points referred to Special Issues Nos. 4, 3, 2-a, and 5. Issue 2-a asked if appellee’s use of herbicide in the close proximity to appellants’ growing crops was negligence. The jury answered “No”. Issue 3 inquired whether defendant used equipment which released into the atmosphere amounts of herbicide in excess of that amount necessary to accomplish his purpose. The jury answered “No”. Issue 4 asked if appellee used herbicide at a time and place such that the wind and atmosphere would and did carry such herbicide onto plaintiffs’ growing crops. The jury answered “No”. Issue 5 inquired if appellee left a container with herbicide upon appellee’s premises so that the same was carried onto appellants’ growing crops. The jury answered “No”. All the issues were begun by a preponderance of the evidence. Texas Employers’ Insurance Association v. Moore, Tex.Civ.App., 284 S.W.2d 175, above cited.

The undisputed evidence is that “Weed-one 638” the substance here in question is not volatile and before it could get on appellants’ crops there would have to be spray blowing onto the crops. The wind at the time of spraying was blowing in a direction to blow it away from appellants’ crops. The chemist, Bishop, testified that in his opinion the “Weedone 638” that was sprayed on the weeds by appellee could not have been reactivated so that it would rise from the ground and vaporize and drift over onto the cotton crop. We believe the trial court submitted the controlling issues here involved and that there was sufficient evidence to sustain the findings of the jury on all issues submitted and overrule all of appellants’ points of error.

Judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Floyd V. ROGERS, Appellee.
    No. 7256.
    Court of Civil Appeals of Texas. Amarillo.
    April 22, 1963.
    Rehearing Denied May 20, 1963.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    Merchant, Fitzjarorald, Poole & Merchant, Amarillo, for appellee.
   DENTON, Chief Justice.

This is a workmen’s compensation case. Appellee, Floyd V. Rogers, sued Texas Employers’ Insurance Association for total and permanent disability as a result of an injury sustained on or about December 1, 1960, while in the course of his employment for the M. W. Kellogg Company. The jury found all issues in favor of appel-lee, and the trial court entered judgment for appellee for total and permanent injuries payable in a lump sum.

In December of 1960 Rogers was employed as a pipe fitter by the Kellogg Company in the construction of a catalyst unit at an oil refinery. Rogers, a sixty year old man, was working on a large tank some sixty to eighty feet above the ground when he slipped on the walkway around the tank. He fell some seven feet and struck his side and rib section against a pipe rail. The injury caused severe pain and affected his breathing. After being sent to the company doctor for treatment, he remained on the job until the Friday before Christmas, but during this time he performed no heavy work. Rogers drove to Oklahoma City for the holidays, and just prior to returning home on December 26 the pain increased. He was then admitted to the Norman Municipal Hospital. Dr. Dycus, who had treated Rogers on prior occasions, was the treating doctor throughout his three weeks stay in the hospital. On December 27 Rogers suffered a heart attack. It is the latter injury which appellee contends is the total and permanent disability injury for which he seeks recovery. The primary question is whether the rib injury of December 1, 1960, was the producing cause of the heart attack.

By points of error one through four appellant .raises “no evidence” questions. These points of error allege errors of the trial court in failing to set aside the jury’s finding; failing to grant appellant’s motion for directed verdict and its motion for judgment non obstante veredicto; and that certain alleged hearsay testimony could not form the basis of the judgment entered. In considering these points we are required to review the evidence in support of the findings and consider only the evidence and the inferences which support the findings, and reject the evidence and the inferences to the contrary. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Rogers’ rib injury of December 1 was confirmed by a fellow employee and the foreman on the job. Dr. Barksdale treated him twice in Borger for this injury prior to the Oklahoma trip. The pain continued to be severe, and his breathing was made difficult. When the pain became more severe on December 26, Rogers’ son took him to the hospital. He was then admitted and examined by Dr. Dycus. Dr. Dycus, who testified by deposition, was the only medical witness offered by either party. He testified:

“Of course, I was primarily concerned, since it was on the left side of his chest, of the possibility of heart pain, but the pain turned out to be a superficial pain, due to rib injury, in relation to respiration. It was made much worse by breathing, and this is typical of a fracture of the rib.”

He testified Rogers could hardly breathe because of this pain. His heart was checked with a stethoscope, and his blood pressure was taken. These examinations revealed no abnormalities. According to this record Rogers had had no prior history of heart trouble. He was given medication for pain, and as the hypo would wear off he became very restless, and would “thrash” about in bed. The doctor further testified:

“In the early a. m., I think it was around 3 a. m. the next morning, he suddenly had severe substernal pain and became shock-like, and had a massive myocardial infarction.”

“Substernal” pain was defined by the doctor as “a pain caused by injury to heart or blood vessels.” The doctor was asked the following question:

“Q. Doctor, what, if anything, do you attribute the heart attack which he had on December 26?
“A. This man was as uncomfortable as anybody I have ever seen from his rib injury, and rib injuries are notorious for not only causing pain, but by causing so much pain in relationship to breathing that the person breathes improperly. He breathes off the top of his lungs, so to speak, so that the oxygen supply being compromised, together with the strain that comes from that much pain, I think, was a direct precipitating incident or precipitating factor in his heart attack.”

On cross-examination the doctor testified that after the heart attack Rogers suffered from angina pectoris which was described as pain f.rom insufficient blood supply to the heart. He also testified that it was “possible” that Rogers could have suffered the heart attack without having sustained the prior rib injury; and that it was “possible” the pain Rogers suffered at the time the doctor first saw him was caused by the myocardial infarction. However, the doctor did not change his opinion as to the cause of the heart attack. As previously noted, the insurance carrier offered no medical testimony.

By brief appellant takes the position that the above quoted testimony of Dr. Dycus might be sufficient to support the verdict, but argues other testimony renders such testimony hearsay and thus not admissible. A transaminase test, an elec-tro cardiogram, and x-rays were taken of Rogers, but the doctor admitted he did not personally conduct such tests. He testified they were taken by the hospital staff. Neither did he testify that the tests were made under his personal supervision and direction. Even though the doctor testified his opinions were based “in part” on these clinical tests, the record does not reveal the positive opinions quoted above were formed from such reports. As the admitting doctor who actually treated the patient, Dr. Dycus personally made sufficient tests and examinations to qualify himself to make these statements independently of the clinical tests. It has been held that a doctor’s diagnosis which is based in part on unsworn reports of tests made by hospital technicians is admissible. Sundquist v. Madison Rys. Co., 197 Wis. 83, 221 N.W. 392. This holding conforms to the general rule that where it appears a witness’ testimony is predicated both upon personal knowledge and upon hearsay, his testimony is admissible. Norris v. Lancaster (Tex. Comm.App.), 280 S.W. 574. Schooler v. State (Civ.App.), 175 S.W.2d 664 (Refused, Want of Merit). We are of the opinion and so hold the testimony of Dr. Dycus was admissible.

When the evidence together with its inferences is considered in a light most favorable to the verdict, we conclude there was sufficient evidence to warrant the submission of the material issues to the jury. The painful injury sustained by Rogers on or about December 1, 1960, is not controverted. Extreme pain and difficult breathing are usual results of such an injury. There is positive evidence Rogers had never suffered a heart attack prior to the one in question. In our opinion Dr. Dycus’ testimony was sufficient to support the causal connection between the pain and physical strain caused by the rib injury with the heart damage. Hartford Accident & Indemnity Co. v. Gant (Civ.App.), 346 S.W.2d 359. Texas Employers’ Ins. Ass’n. v. Talmadge (Civ.App.), 256 S.W.2d 945. We therefore conclude there was evidence of probative force to support the jury verdict. Appellant’s points of error one through four are accordingly overruled.

By its next point of error appellant complains there is no evidence, and in the alternative insufficient evidence, that Rogers had worked the required number of days in the preceding year to warrant use of his own wages as a basis for determining his average weekly wage. It is uncontra-dicted that Rogers worked a total of 271 days in the year preceeding his injury. He was a pipe fitter by trade, and testified he worked for the Kellogg Company 91 days and the balance of 180 days for Reynolds Oil Field Sales in Oklahoma City. The record shows he earned $3,072.45 from Kellogg and $3,280.83 from Reynolds. Despite Rogers’ testimony that he worked as pipe fitter for both concerns, and the work performed on each job was similar appellant argues this testimony is contradictory to the conclusion the two jobs were the same. This contention is based on the premise that his earnings were so vastly different, the nature of the employment must be different. This conclusion does not necessarily follow. No case has been cited and we have found none which holds the similarity of employment under the workmen’s compensation act is based on the salary scale paid. We conclude there was evidence to support the jury finding that Rogers worked in the employment at least 210 days the year immediately preceding his injury.

Appellant objected that the charge did not make direct inquiry whether Rogers’ rib injury was the producing cause of the heart attack. It requested an issue in support of this objection. An objection and requested issue were also refused which sought to obtain a jury finding with respect to the degree and duration of Rogers’ incapacity if the effects of the heart attack were excluded from consideration. The first special issue asks if Rogers “sustained an accidental injury to his body on or about December 1, 1960.” In connection with this issue, the court instructed the jury:

“By the term ‘ACCIDENTAL INJURY’, as used in this charge, it is meant an undesigned, unforeseen, or unexpected occurrence or mishap, which can be traced to a definite time, place and cause, and causing damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom, or the incitement, acceleration or aggravation of any disease previously or subsequently existing by reason of such damage or harm to the physical structure of the body.”

Special issue number two inquired if Rogers “sustained any incapacity to labor as the natural result of the injury, if any, sustained by him on or about December 1, 1960.” Special issue number three asks if “such accidental injury, if any, resulted in plaintiff becoming totally incapacitated for work.”

The issues as submitted fully comply with the holding of the Supreme Court in Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280. See also Maston v. Texas Employers’ Ins. Ass’n, 160 Tex. 439, 331 S.W.2d 907. Special issue number one in this case and the issue submitted in the Maston case and the issue suggested in the Boswell case are practically identical. The issue as framed was specifically approved in those two cases. The definition of “accidental injury” included the phrase “causing damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom.” (Emphasis added.) When the approved special issue is considered together with the court’s instruction, we conclude the trial court did not err in submitting the issue in that form and in refusing the requested special issue.

We find no merit in the contention the jury should have been required to determine the extent and duration of Rogers’ incapacity with the effects of the heart attack eliminated from consideration. There was no necessity for the jury to find either separately or collectively that Rogers suffered one or all of the exact injuries alleged in the petition and which were supported by the evidence. Southern Underwriters v. Boswell, supra.

The judgment allowed recovery for 401 weeks of compensation at the maximum rate of $35.00 per week. The date of the initial rib injury was on or about December 1, 1960, and the jury found Rogers’ total incapacity commenced December 27, 1960. Under the workmen’s compensation act the compensation period of 401 weeks must be calculated from the date of the injury. Tex. Employers Ins. Ass’n v. Guidry, 128 Tex. 433, 99 S.W.2d 900. Jones v. Texas Employers Ins. Ass’n, 128 Tex. 437, 99 S.W.2d 903. In the instant case the incapacity did not begin until December 27, 1960 — some four weeks after the rib injury. It follows that Rogers is entitled to recover compensation for the period beginning December 27 and to terminate at the end of 401 weeks from December 1, 1960. The judgment should therefore be reformed so as to reduce the total period of recovery by four weeks. The judgment of the trial court is, therefore, reformed to allow Rogers recovery for 397 weeks of compensation at the rate of $35.00 per week.

The judgment of the trial court is therefore reformed as stated above, and as reformed the judgment is affirmed.

Reformed and affirmed.


author: McDONALD, Chief Justice.

text:
    William ENARD et al., Appellants, v. TEXAS CITY et al., Appellees.
    No. 4131.
    Court of Civil Appeals of Texas. Waco.
    May 16, 1963.
    Rebearing Denied May 31, 1963.
    Arthur C. Steere,. Houston, for appellants.
    Henry P. Giessel, Houston, McLeod, Mills, Shirley & Alexander, Galveston, foi appellees.
   McDONALD, Chief Justice.

This is an appeal from a summary judgment that plaintiff take nothing. Such judgment was entered by the Trial Court on October 26, 1962. Thereafter, plaintiff on November 9, 1962 filed motion for new trial. Such motion for new trial was not required in the instant case as a prerequisite for appeal. Rule 324 T.R.C.P. Such motion was filed more than ten days after the date of entry of judgment in the case,, being some 14 days after entry of such judgment.

Plaintiffs’ motion for new trial was overruled by the Trial Court on November 27, 1962.

Plaintiffs’ appeal bond was filed on December 26, 1962, within 30 days of the time of overruling motion for new trial, but not within 30 days of the date of judgment (being 60 days of the date of the entry of judgment).

Rule 329-b, Section 5, provides:

“ * * * The filing of a motion for new trial after ten (10) days have expired and before thirty (30) days have expired since the rendition of the judgment shall not operate to extend the district court’s jurisdiction over the judgment for a period of more than thirty days from the date of the rendition of judgment.”

Therefore, plaintiffs’ motion for new trial was ineffective to extend the district court’s jurisdiction over the case for more than the 30 days from the rendition of judgment.

Defendants have filed motion to dismiss the appeal for want of jurisdiction.

Plaintiffs’ appeal bond not being timely filed (see Rule 356 T.R.C.P.), defendants’ motion to dismiss is granted, and this appeal is dismissed for want of jurisdiction.

Dismissed.


author: MASSEY, Chief Justice.

text:
    TEXAS INTERNATIONAL PRODUCTS et al., Appellants, v. MUSTEX, INC., Appellee.
    No. 16420.
    Court of Civil Appeals of Texas. Fort Worth.
    April 26, 1963.
    Rehearing Denied May 24, 1963.

      LeLaurin, Chamberlin, Guenther & Mur-ry, San Antonio, Rodgers & Stephens and Ronald Stephens, Graham, for appellants.
    Jennings, Montgomery & Dies, and Elton Montgomery, Graham, for appellee.
   MASSEY, Chief Justice.

The appeal is from an order overruling pleas of privilege of the corporate defendant and of two individual defendants.

Judgment is .reversed and the cause remanded for another trial.

Mustex, Incorporated, plaintiff in the cause, was at all times domiciled in Young County, Texas. Defendant Texas International Products, a Texas Corporation, had its domicile in Harris County. Defendants Herman Keuhn and Zelman Keuhn, officers of Texas International Products, had their domicile in Harris County. In the plaintiff’s petition were allegations that plaintiff, “at the special instance and request of defendants, sold and delivered to them certain goods, wares and merchandise more particularly described in the verified account heretofore referred to, in consideration whereof defendants promised and became bound and liable to pay to plaintiff the prices charged therefor in said account set out, * * Thereafter plaintiff alleged that “A portion of the account sued upon is secured by a mechanic’s lien fixed by affidavit made pursuant to Article 5483 et seq. of the Revised Civil Statutes of the State of Texas, * * *. The plaintiff would show the court that the above described mechanic’s and material-men’s lien was established in accordance with the laws of the State of Texas; that it furnished certain goods, wares and merchandise to the defendants under contracts and agreements entered into at various times; that the lien is in full force and effect, is now valid and subsisting, and is subject to being foreclosed in Young County, Texas.”

Prayer for relief in plaintiff’s petition sought judgment in sworn account against all and several of the defendants, for foreclosure of the alleged lien against the goods, wares and merchandise, for attorney’s fees and costs.

Each of the defendants filed a plea of privilege. By its controverting affidavit to the plea of privilege of the corporate defendant plaintiff .realleged the lien asserted against the property in question and for which foreclosure was sought, and in connection therewith asserted that venue was properly fixed in the county of the suit under the provisions of Vernon’s Ann.Tex. St. art. 1995, “Venue, general rule”, and the exception thereto recited in subdivision 12, “Lien. — A suit for the foreclosure of a mortgage or other lien may be brought in the county where the property or any part thereof subject to such lien is situated.”

Additionally, plaintiff alleged that the “sales made by plaintiff” were actually made and contracted for in the county of the suit, and asserted that venue was properly fixed in the county of the suit under exception 23, “Corporations and Associations”, to the statute’s general venue provisions. The same character of claim of venue was asserted under exception 5, “Contract in writing”.

To the pleas of privilege of the individual defendants plaintiff asserted that venue was properly fixed in the county of the suit, in view of its right to maintain venue therein as to the corporate defendant, under exception 29a, “Two or more defendants”, to the statute’s general venue provisions, as well as under the exceptions pleaded in its controverting affidavit to the plea of privilege of the corporate defendant, except exception 23, “Corporations and Associations”, obviously inapplicable.

From the statement of facts it appears that the corporate defendant, Texas International Products, is or was in the business of marketing premolded fiberglass fallout shelters. The “molds”, or part thereof, used in the manufacture of the shelters were apparently the property of the corporate defendant. Through some arrangement Mustex, Inc., the plaintiff, manufactured the shelters. Under the direct testimony introduced by plaintiff a number of shelters manufactured by it were “sold” to the defendants. Some shelters so manufactured had been “taken” by the defendants and removed from the premises of the plaintiff or had been “accepted” on out-of-county deliveries. Approximately twelve shelters had been manufactured by plaintiff which remained in its warehouse in Young County. It was on these shelters that plaintiff had attempted to fix the lien upon which its suit sought foreclosure.

It is obvious from the record that the corporate and individual defendants are contending they never contracted to receive any of the twelve shelters, nor to have the plaintiff manufacture them and that the shelters ever were and remained the property of plaintiff. Under the proof of the plaintiff there was no evidence whatever of any “delivery” to defendants, or any of them, of any of the twelve shelters. Plaintiff’s witness was allowed to testify over objection that plaintiff “sold” them to defendants. There was no proof that defendants, or any of them, had so contracted with the plaintiff that they held title to or the right of possession of the shelters before there had been any actual physical delivery thereof, or any act of acceptance by defendants. Without regard to any importance of the state of the record for purposes of the pleas of privilege, it is obvious therefrom that it would be more profitable to plaintiff to have the shelters sold by legal process, with a credit thereby placed against the account it is claiming against the defendants, than would be the case were it to agree with the defendants that the shelters were its own property.

Upon the matter of the lien which plaintiff purported to have fixed in accordance with law, and on the strength of which it sought to effect a foreclosure by its suit, we necessarily must examine the same. V.A.T.S. Title 90, “Liens”, Ch. 5, “Farm, Factory and Store Operations”, Art. 5483, “Lien prescribed”, reads in part as follows: “Whenever any * * * artisan, craftsman, factory operator, mill operator, mechanic * * * may labor or perform any service in any * * * factory, mine, quarry or mill of any character * * * under or by virtue of any contract or agreement, written or verbal, with any person, employer, firm or corporation * * *, in order to secure the payment of the amount due or owing under such contract or agreement * * * the herein-before mentioned employees shall have a first lien upon all products * * * goods, wares, merchandise * * *, or thing or things of value of whatsoever character that may be created in whole or in part by the labor * * (Emphasis supplied.) Art. 5486, “Liens, how fixed”, prescribes the method by compliance with which such character of lien may be lawfully fixed. The method was that with which plaintiff complied.

Employers of labor are not afforded any right to a lien because of the labor of employees. The only right to a lien as prescribed by Art. 5483 is one in behalf of an individual who has performed labor or rendered personal services. A corporation cannot perform personal services. “Labor done” is but one form of “personal services rendered”. Van Zandt v. Fort Worth Press, 1962, Tex., 359 S.W. 2d 893. Since a corporation can neither perform labor nor render personal services Mustex, Inc., plaintiff in the suit under consideration, is effectively precluded from claiming any right to any lien contemplated by the article. Plaintiff’s pleadings, even if conceded to allege that it “labored” or “performed some service” in the manufacture of the shelters for the defendants, or any of them, cannot be given any effect for the “lien” thereby purportedly alleged does not fulfill the requirements of the venue statute’s exception 12, “Lien”, in that it does not allege a lien which is a legally valid lien. The lien purportedly fixed and which plaintiff sought to have foreclosed was not one of which it could claim any benefit, for Mustex, Inc., was not within the class of persons contemplated by Art. 5483.

Furthermore, we believe that plaintiff’s suit on sworn account is necessarily inconsistent with any claim for the character of right contemplated to be secured by any lien predicated upon the provisions of Art. 5483. Also, since the defendants disclaimed any title or interest in the property upon which lien foreclosure was sought and there was no proof that any defendant ever held title to any interest therein we seriously doubt the efficacy of plaintiff’s proof in ■respect to the property phase.

The Supreme Court has now given its express approval to the line of cases which hold that a plaintiff who pleads a lien and shows the location of the property, or a part thereof, in the county need not establish by extrinsic evidence that he has a lien enforceable against the defendant. Morgan Farms v. Murray, 1950, 149 Tex. 319, 233 S.W.2d 123. The lien so plead, however, must be a lien of which the plaintiff is entitled to claim protective benefit.

On submission, of the case before this court it was conceded by the attorney for the plaintiff that on the record presented to us he had not established a right to hold venue in the county of the suit unless we agreed upon the applicability of the general venue statute’s exception 12, “Lien”. We have not agreed. Plaintiff’s attorney insisted in that event that a remand was proper .rather than a rendition directing change of venue. It is particularly noted that plaintiff claimed a right to retain venue under exception 23, “Corporations and Associations”. The case of Jackson v. Hall, 1948, 147 Tex. 245, 214 S.W.2d 458, dealt with a case where such was the exception relied upon but where the plaintiff had failed to show that his cause of action or a part thereof arose in the court of suit. It was held therein that the case was not fully developed and was tried upon the wrong theory, not only by the attorneys but by the trial judge, for otherwise the trial court would have transferred the cause. We agree that as applied to the corporate defendant, Texas International Products, our obedience to the principle of law declared in Jackson v. Hall will require a remand rather than a reversal.

Any right the plaintiff might have to hold the corporate defendant under exception 23, “Corporations and Associations”, could not carry with it any subsidiary right to hold the individual defendants under exception 29a “Two or more defendants”, unless they were shown to be “necessary parties” along with the corporate defendant in the same manner as required under exception 12 “Lien”. What we mean to say is that the plaintiff had the duty on the hearing already had to show its right to hold the individual defendants, and that the duty would not differ in any way on any new hearing. This duty was not discharged on the hearing already had, and plaintiff’s pleadings do not show that the individual defendants are necessary parties to its suit against the corporate defendant. See Clark, Venue in Civil Actions, Ch. 29a, p. 179, “Two or More Defendants”, § 6, “Proof Necessary to Sustain Venue”.

However, by the plaintiff’s pleadings and controverting affidavit a direct cause of action against the individual defendants was alleged under the general venue statute’s exception 5, “Contract in writing”. This was not proved. The trial was on the lien theory. This we have held was the wrong theory. A correct theory would be that the individual defendants were bound on an instrument in writing. It may be that plaintiff will be able on the occasion of another trial to establish venue under exception 5, “Contract in writing”. Under the principle of law adhered to in Jackson v. Hall, supra, it appears that plaintiff is entitled to make the attempt at another hearing.

Judgment is reversed and the cause remanded for a new trial.

ON MOTION FOR REHEARING

In our opinion we directed a remand of the case for further development, if within the power of Mustex, Incorporated. Appellants have filed a motion for rehearing in which they level a strenuous attack upon our interpretation of Jackson v. Hall, 1948, 147 Tex. 245, 214 S.W.2d 458, and insist that our judgment should be one of reversal and rendition rather than one which merely remands the case for another trial. In connection therewith appellants point out that Mustex was not prevented from fully developing its case on the plea of privilege, nor did it omit to do so as a result of an erroneous decision of the trial court, but that any failure on the part of Mustex in relation to development of its evidence was the result of a decision or election on its own part.

It is worthy of note that this court had occasion to write on this same question on May 10, 1963, in the case of Central Surety and Insurance Corporation v. First National Bank of Fort Worth. The opinion in that case has not yet had time to appear in the reporter. It may well be that it will be published about the same time as our opinion in the instant case.

Therein we stated, “It is to be noted that the Supreme Court’s action in Jackson v. Hall was taken pursuant to its having granted leave to file a petition for mandamus against the Justices of the Court of Civil Appeals to compel a judgment of remand upon reversal of a trial court’s judgment overruling a plea of privilege, rather than the rendition by which the case was ordered transferred.

“Our interpretation of the holding in Jackson v. Hall is that as applied to appeals in general, and those from orders overruling pleas of privilege in particular, any proper judgment of an appellate court which .reverses the judgment of the trial court should be one which incorporates therein an order remanding the cause to the trial court, rather than one of rendition, when the reversal is occasioned by a lack of evidence in support of the judgment of the trial court,—unless it clearly appears that the case was fully developed, i. e., unless it clearly appears that there was no evidence available to be introduced in the trial court which would have supplied such ‘lack’.”

The statement quoted has complete application to the question in the instant case. If we err the law affords a method of obtaining a remedy.

Motion for rehearing is overruled. No additional motion for rehearing will be entertained.


author: RENFRO, Justice.

text:
    JOHNNY MORROW’S WRECKING CREW, INC., Appellant, v. Leslie SLATE, Appellee.
    No. 16424.
    Court of Civil Appeals of Texas. Fort Worth.
    May 3, 1963.
    Rehearing Denied May 31, 1903.
    Wm. Andress, Jr., Dallas, for appellant.
    Donald C. Bubar, Fort Worth, for ap-pellee.
   RENFRO, Justice.

Plaintiff Johnny Morrow’s Wrecking Crew, Inc., brought suit on sworn account against Leslie Slate, involving seventeen items consisting mostly'of various kinds of steel, amounting to a total sum of $6,474.17.

Defendant filed a sworn denial in which he asserted that plaintiff had assigned erroneously high weights to scrap iron and steel delivered. He pleaded his willingness to pay plaintiff $2,350 in full settlement of plaintiff’s demands.

The jury was asked to find the total number of pounds of steel sold and delivered by the plaintiff to the defendant. Its answer was 210,000 lbs.

Based on the above and other jury findings and undisputed evidence as to some items other than the foregoing mentioned steel, judgment was entered for plaintiff for the sum of $2,225.00, from which judgment plaintiff appealed.

The plaintiff contends the court erred in refusing to submit to the jury, separately, the weight of each load of steel delivered to defendant.

It is undisputed that prior to any delivery the parties agreed that defendant would buy all the steel on plaintiff’s lot at a price of 3⅛ cents per pound. Defendant hauled some of the steel, then plaintiff’s trucks delivered the remaining steel to defendant’s yard in thirteen separate loads.

Under the record the ultimate issue was the total amount of steel delivered by plaintiff to defendant, and the court did not err in submitting the issue. Rule 279, Texas Rules of Civil Procedure.

Plaintiff contends the court erred in declining to award plaintiff attorney’s fees.

Both sides agreed to leave the amount of attorney’s fees, if any found allowable, to the judgment of the court. The court denied plaintiff any attorney’s fee.

Article 2226, Vernon’s Ann.Civ.St.Tex., provides in part that when one sues on sworn account and “he should finally obtain judgment for any amount thereof as presented for payment to such person or corporation, he may also recover * * * a reasonable amount as attorney’s fees * * ⅜»

When defendant denied the sworn account under oath, the question as to whether or not plaintiff was entitled to an attorney’s fee became an issue in the case. Since plaintiff recovered $125.00 less than defendant had tendered in his answer, it was within the province of the trial judge to determine that plaintiff should not be awarded an attorney’s fee. Paddock Engineering Co. of Tex. v. Rife, Tex.Civ.App., 310 S.W.2d 594.

Plaintiff contends it was entitled to an instructed verdict because there was no competent evidence disputing the official weigher’s certificates.

Plaintiff introduced twelve state certificates of weights and measures issued by a public weigher, and twelve invoices made in plaintiff’s office which were made from the weight certificates when the driver or drivers returned from making a delivery. The plaintiff’s ledger sheets also showed the weights set out in the weight certificates.

None of plaintiff’s truck drivers testified. The witnesses who testified for plaintiff had no personal knowledge of the actual delivery of the steel from plaintiff’s yard to defendant’s yard or farm. There was no testimony that the driver or drivers who had the steel weighed actually delivered to defendant all the steel shown in the certificates.

The weight certificates show the steel was weighed for plaintiff, but the “Sold To” spaces were blank. Defendant’s name did not appear on said certificates.

It was stipulated that no copies of the weight certificates were delivered to defendant until five months after suit was filed.

Defendant testified he received no invoices from plaintiff.

Plaintiff’s truck drivers did not secure receipts from defendant when deliveries were made.

Defendant testified that he personally measured and computed the weights of the pieces of steel delivered to him. He used as a basis for his weight computation the construction manual of the American Institute of Steel Construction. It accurately shows the weight of all sizes of steel.

The President of plaintiff conceded, “Yes, sir, that book will give you the weight of any piece of steel that was ever made” and “It is accurate.”

Although defendant admittedly was not an accomplished bookkeeper, he kept his own records of the amount and weight of the Morrow steel sold from his yard, and had a record of the weight remaining on his yard.

In view of the whole record, taking into consideration all the evidence introduced by both sides, as well as the lack of testimony by plaintiff by witnesses with actual knowledge of the delivery of the steel, as weighed, to defendant, we believe the jury was entitled to make the finding it did as to weight of the steel actually delivered to defendant.

All points of error are overruled and the judgment affirmed.

Affirmed.


author: TIREY, Justice.

text:
    James B. WRIGHT, Appellant, v. Verna ALMS et al., Appellees.
    No. 4090.
    Court of Civil Appeals of Texas. Waco.
    May 2, 1963.
    Rehearing Denied May 23, 1963.
    Trotter, Childs, Fortenbach, Pomeroy & McClure, Frank M. Bean, Houston, for appellant.
    John Bradshaw, Houston, for appellees.
   TIREY, Justice.

The action is grounded on injuries resulting on account of a rear end automobile collision in Chambers County, in which Mrs. Blackmon, who was driving her car, and her sister, Mrs. Alms, accompanying her, were injured as a result of the appellant’s car colliding with the rear end of the Blackmon car, both cars being on a public highway and going in the same direction. Defendant admitted liability in the trial court. It was stipulated that defendant is a resident of Bee County, Texas. Plaintiffs, Verna Alms and Ira Mae Black-mon, are both residents of Harris County, Texas; Wright was driving a Chevrolet automobile and Mrs. Blackmon was driving a Mercury automobile, and Wright’s automobile collided with the rear end of the Blackmon automobile on June 4, 1961, in Chambers County on a public highway; as a result of the collision Wright was charged with violation of the traffic laws for failing to pass to the left of the car driven by Mrs. Blackmon while approaching it from the rear, and Wright entered a plea of guilty to that charge before the Justice of the Peace in Mont Belvieu. At the time of the collision, Mrs. Alms was 47 years of age and had a reasonable life expectancy of 23.08 years, and Mrs. Black-mon was 48 years of age and had a reasonable life expectancy of 22.36 years.

In appellant’s brief we find':

“Appellant James B. Wright, admitted liability for any and all damages actually sustained by appellees, proximately caused by his negligence, in the automobile collision made the basis of the respective suits.
“Having admitted liability, appellant, James B. Wright, moved the Court, by timely filing a Motion in Limine, to restrict the evidence adduced on the trial of these causes to that pertaining to the issues of damages, to the exclusion of all evidence pertaining to the cause or causes of the automobile collision, and the circumstances attendant thereto. Said Motion was by the Court overruled, to which ruling appellant duly excepted.
“Thereafter, during the trial of these causes, as evidence considered by the appellant to be pertaining to the cause or causes of the automobile collision, and the circumstances attendant thereto, was offered, appellant objected to its introduction. The basis for such objection were that such evidence was irrelevant to the sole issues in the cases, the damage issues, and that such evidence was highly inflammatory and prejudicial to appellant, James B. Wright.
“In all cases, such evidence was admitted by the Court for the limited purpose of-showing severity of impact as such impact, at collision, might bear on the injuries received by appellees.”

The court submitted 2 issues to the jury: (1)as to the damages sustained by Mrs. Alms, to which the jury answered $9,950.00; and (2) as to the amount of damages sustained by Mrs. Blackmon, to which the jury answered $9,950.00. Judgment was entered accordingly for each, together with all costs of suit and for 6% interest. Wright perfected his appeal to the Houston Court, and the cause is here on transfer.

The judgment is assailed on what appellant designates as 5 points. They are substantially to the effect:

(1) In overruling defendant’s Motion in Limine;

(2) In admitting into evidence the testimony of the witness Henry that, just before the collision, appellant Wright was operating his automobile in excess of the legal speed limit; that the automobile of appellees came to rest several hundred feet from the point of impact; that the only skid marks at the scene of the accident were- those made after the impact; that the skid marks of the automobile of appellant extended off the pavement, into a field, and that the automobile of appellant traveled several hundred feet after the impact before coming to rest;

(3) In admitting into evidence the testimony of the witness Ricketson that skid marks at the accident scene indicated that the automobile of appellant traveled off the pavement, after impact, for a considerable distance, and that skid marks left by appellant’s automobile were “heavy” as compared to “light”.

(4) In admitting into evidence Plaintiffs’ Exhibits Nos. 4 — 11, being photographs depicting skid marks at the accident scene, indicating that the automobile driven by appellant traveled several hundred feet after impact, off the pavement, into a field before coming to rest;

(5) In admitting into evidence Plaintiffs’ Exhibits Nos. 12-13, being photographs of the automobile occupied by appellees, allegedly indicating damages sustained in the collision in question. Appellant says that the points of error are closely inter-related and for that reason he presents them together under one statement.

Appellees present one counter statement and it is to the effect that the court did not err in admitting evidence of the severity of the impact, where it was offered and admitted for the limited purpose of its relation to the issues of the type and extent of appellees’ injuries.

Appellant contends that since he admitted liability certain evidence relating to the speed of his car should not have been allowed by the court over the objection of appellant, on the ground that it was irrelevant and immaterial. However appellant, in his brief, admits that this is a matter largely within the discretion of the trial court; but he does not say the court abused its discretion. Appellant further admits in his brief that the court in all instances admitted the evidence objected to for the limited purpose of showing severity of impact as it might bear on the injuries claimed by the appellees. The Statement of Facts shows that in all instances where appellant complains of such evidence, the testimony offered was always made with the specific statement by counsel for ap-pellees that such evidence was being offered for the limited purpose of showing the severity of the impact as it might bear out the injuries complained of by appellees. Counsel for appellees further announced to the court that the testimony was not offered to prove liability. For, example, we quote from the Statement of Facts:

“If your Honor please, plaintiffs offer the testimony of the witness, Gladman Henry, not for the purpose of establishing any liability for the defendant in any respect, but only for the purpose of showing the severity of the blow, or the impact, as it might relate to the physical injuries received by the plaintiffs.”

Since the appellant admitted liability for the accident, did the trial court commit reversible error in admitting the testimony complained of with reference to the factual situation showing or tending to show severity of the impact? We think the answer is “No.” First of all, the injuries suffered by each of the plaintiffs in the nature of bruises and contusions are without any question whatsoever, but each of the plain-' tiffs contended that they were suffering severe pain and discomfort because of 'injuries sustained to their backs, and the evidence in this behalf was to the effect that each of the plaintiffs was suffering from spondylolisthesis that had been aggravated because of the severity of the blow, and that this condition had partially disabled them for the rest of their lives, and that they would suffer discomfort by reason thereof for the rest of their lives. For example, each claimant, according to the evidence, received a cervical strain, sometimes known as a whiplash injury, and each received an aggravation of spondylolisthesis, which condition had existed prior to the collision, but which had not given either of the plaintiffs any pain or discomfort. The only question tendered by the evidence was whether each plaintiff received an aggravation of this condition of spondylo-listhesis in the collision. Evidence was tendered to the effect that although they had suffered no pain in this behalf prior to the collision, that after the collision the spondylolisthesis had caused them great pain for a period of one year prior to trial; that it would cause them much pain for the remainder of their lives, a period of around 23 years in each case. This was shown by the testimony of each of the appellees, and it was borne out by expert testimony, including that of Dr. DeYoung, an Orthopedist, the qualifications of whom were admitted by counsel for appellant. Dr. De-Young testified to the effect that each of appellees would be disabled to the extent of 15% in earning capacity for the rest of their lives.

The testimony of Mrs. Blackmon showed that during the first year after the collision she lost wages in the amount of $280.00 and worked only because she had to, and was doing lighter work. It was Dr. De-Young’s testimony that she would be disabled or incapacitated to earn to the extent of 15%. The evidence revealed that she had been earning about $2500.00 per year. At this rate, 15% of $2500.00 would show a loss of about $375.00 a year, for 23 years. The evidence revealed a loss of future earnings in the amount of $8,625.00. Mrs. Blackmon’s medical expenses to date of trial were about $569.00. Therefore, in round figures, her medical, plus her lost earnings, would total about $9200.00. That would leave very little compensation for her physical pain and suffering in the past and in the future; but obviously the jury could not award her more-than the $9950.00, which was the amount for which she sued.

With reference to Mrs. Alms, it is stipulated that she sustained a loss of earnings in the amount of $2450.00 and that she was incapacitated to earn to the extent of 15% for the remainder of her life, and that she would suffer great physical pain the rest of her life. The evidence further showed her medical expense to be $768.40. As above stated, she had a life expectancy of about 23 years. In view of the foregoing evidence, was the evidence tendered as to the severity of the impact prejudicial? We think not. First of all, the stipulation specifically provided that “additional proof may be made if desired by either party.” Moreover, our Supreme Court in Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, made this significant statement: “As a general rule, any evidence is relevant and material if it tends to prove, or disprove, any material fact involved in the issue or the question being tried.” We think it is obvious that under the record here made, the severity of the impact is certainly pertinent to the injuries complained of by the plaintiffs.

In Dallas Ry. & Term. Co. v. Oehler, 156 Tex. 488, 296 S.W.2d 757, our Supreme Court made this statement: “To be admissible evidence must be relevant and material; it must tend to prove or disprove some issue in the case.”

Our Supreme Court has not seen fit to change or modify the rules here stated, and this rule and the application thereof is so well settled that we think that neither the rule nor the application to this factual situation should be further labored.

Moreover, Rule 434, Texas Rules of Civil Procedure, provides in part:

“ * * * that no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, * * We think the application of this rule to the factual situation here requires us to affirm this cause.

Finding no reversible error, the judgment of the trial court is affirmed.


text:
    Stella EHRHARDT, Appellant, v. Charles EHRHARDT, Jr., Executor of the Estate of J. G. Ehrhardt, Deceased, et al., Appellees.
    No. 4134.
    Court of Civil Appeals of Texas. Waco.
    May 9, 1963.
    Rehearing Denied May 31, 1063.
    Stella Ehrhardt, pro se.
    John M. Robinson, Houston, for appellees.
   McDONALD, Chief Justice.

Plaintiff filed the instant case alleging she owned a ½ interest in certain real estate in Harris County. Trial was to a jury. At the conclusion of the evidence the Trial Court withdrew the case from the jury and entered judgment for defendant (except for a ⅜6⅛ mineral interest in certain of the property; a ⅛⅛ mineral interest in certain of the property; and a contingent interest in certain other property; all of which defendants admitted that plaintiff owned).

Plaintiff appeals, contending that the Trial Court erred in taking the case from the jury, and in rendering judgment against her. Plaintiff has brought forward no Statement of Facts.

In the absence of a Statement of Facts, it must be presumed on appeal that sufficient evidence was introduced to support the findings and judgment of the Trial Court. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683; First Nat. Life Ins. Co. v. Herring, C.C.A. (n.w.h.) 318 S.W.2d 119.

The judgment of the Trial Court is affirmed.


text:
    Jim C. McKELVY et al., Appellants, v. Forrest C. BARBER, Appellee.
    No. 16417.
    Court of Civil Appeals of Texas. Fort Worth.
    April 19, 1963.
    Rehearing Denied May 24, 1963.
    John W. Herrick and Massie Tillman, Fort Worth, for appellants.
    Cantey, Hanger, Gooch, Cravens & Scarborough, and J. A. Gooch, Fort Worth, for appellee.
   RENFRO, Justice.

Suit was brought by Jim McKelvy against Dr. Forrest C. Barber for damages arising from alleged negligent medical treatment.

At the conclusion of the evidence defendant moved for an instructed verdict, which was granted.

Plaintiff appealed on only three points of error, namely, that the evidence raised jury issues as to whether defendant administered tetanus anti-toxin injections to plaintiff on January 12, 1959, and January 26, and whether defendant was negligent in failing to diagnose plaintiff’s condition as tetanus on January 26.

Plaintiff was totally and permanently disabled at the time of trial because of the effects of tetanus. He died pending appeal and his survivors have been substituted as appellants.

Defendant’s motion for instructed verdict contained fifteen specific grounds.

One of his counterpoints, raised in the motion for instructed verdict reads as follows: “The Court did not err in granting defendant’s motion for peremptory instruction because the evidence in the case shows without dispute and without doubt that Dr. Barber was the agent, servant and employee of American Manufacturing Company and was the duly selected doctor for the workmen’s compensation insurance carrier of American Manufacturing Company in connection with industrial accidents occurring at the American Manufacturing Company and therefore was not the personal physician of plaintiff; and since Mr. Mc-Kelvy had executed a complete release to the compensation insurance carrier of American Manufacturing company, which inured to the benefit of his employer, American Manufacturing Company, Mr. McKelvy had cut off his cause of action, if any, against Dr. Barber, since Dr. Barber was the agent of American Manufacturing Company and its insurance carrier, it being the law of the State of Texas that the injured employee has no right of action against a fellow servant or employee or against his employer or the compensation insurance carrier when he accepts the benefits of workmen’s compensation and executes an outright release in connection with the receipt of such benefits, unless such action is brought against either the compensation insurance carrier or the employer on the grounds of negligence on the part of the employer and compensation carrier in connection with ordinary care in the selection of such a physician.”

It is undisputed that defendant was the doctor for the American Manufacturing Company. The plaintiff himself so testified, as did defendant and a representative of said Company. The workmen’s compensation carrier for the Company paid all of plaintiff’s medical bills, including the defendant’s bills. It is undisputed that plaintiff, represented by counsel, executed a full and final settlement with Pacific Employers Insurance Company, the carrier for American Manufacturing Company, and executed a release in full for his injury and resulting tetanus.

It is provided in Art. 8306, § 3, V.A.T.S.: “The employés of a subscriber and the parents of minor employés shall have no right of action against their employer or against any agent, servant or employé of said employer for damages for personal injuries, and the representatives and- beneficiaries of deceased employés shall have no right of action against such subscribing employer or his agent, servant or employé for damages for injuries resulting in death, but such employés and their representatives ancj beneficiaries shall look for compensation solely to the association, as the same is hereinafter provided for.”

In Martin v. Consolidated Casualty Ins. Co., 5 Cir., 138 F.2d 896, it was held: “It is settled law in Texas that the insurer stands in the place of the employer and may be held accountable only as the employer may be, and it is not even contended by appellants that an employer who had provided and paid compensation could be held liable in a suit for compensatory damages for his own acts or omissions or those of his servants or agents. Lindsey v. Texas & N. O. R. Co., Tex.Civ.App., 87 S.W.Zd 864.”

In our opinion the evidence is clear that defendant, under the record before us in this particular case, was “the agent, servant and employee” of American Manufacturing Company.

Since he elected to proceed with and settle his claim for workmen’s compensation, he then had no cause of action against defendant for negligent treatment of the injury sustained in the course of his employment.

Having concluded that plaintiff had no cause of action against the defendant, we do not determine whether there was evidence of sufficient probative force to show negligence on the part of defendant in the treatment administered to plaintiff.

Judgment affirmed.


author: PHILLIPS, Justice.

text:
    Joseph N. LODGE, Appellant, v. Dorothy M. LODGE, Appellee.
    No. 11079.
    Court of Civil Appeals of Texas. Austin.
    May 8, 1963.
    Rehearing Denied May 29, 1963.
    Moursund, Ball & Bergstrom, San Antonio, for appellant.
    Rivera, Lee & Ritter, San Antonio, for appellee.
   PHILLIPS, Justice.

Appellant and appellee, while still husband and wife, but having lived separate and apart for some time, executed a separation agreement on February 17, 1945. At the time of this agreement both parties were residents of Florida. The agreement, among other things, provided:

“Second: That said husband is to pay the said wife the sum of One Hundred ($100.00) Dollars per month for the support and maintainance of the said wife, on the first day of each and every month beginning with the first day of March 1945.”

On June 1, 1945, appellant and appellee were divorced.

In 1947, appellee sued appellant in New York, the State of appellant’s residence at the time, to recover past due payments under the agreement. The suit was compromised and settled by another agreement between the parties. Under the new agreement appellee dismissed the suit she had filed in New York. This new agreement, among other provisions provided:

“First: The party of the first part does hereby agree to pay to the party of the second part, during her life, or until she remarries the sum of Fifty ($50.00) Dollars per month on the first day of each and every month. * * * The said payments are to commence as of the 1st day of August 1947.”

Appellant complied with all of the provisions of the second agreement until June, 1960 at which time he ceased making the monthly payments.

Appellee filed this suit against appellant in San Antonio, Bexar County, Texas, the residence of the appellant, to collect the past due installments under the second agreement. The Trial Court rendered summary judgment for appellee and appellant has appealed from this judgment.

Appellee takes the position that the validity of the first contract is not in issue; that the second contract superseded the original separation agreement, is not void for want of consideration because such contract compromised a disputed claim which was then in litigation between appellant and appellee in the courts of New York; that there was further consideration in appellee’s dismissal of her lawsuit pursuant to the terms of the second contract; that these two benefits were ample consideration for the new contract.

Appellant maintains that the Trial Court erred in sustaining the motion for summary judgment and entering judgment thereon for the reason that the undisputed facts show that this is a suit to enforce a contract for permanent alimony which is contrary to the public policy of the State of Texas and is void and unenforceable by a Texas Court.

Appellee has neither plead nor proved what the laws of Florida or New York are under the facts presented. Nor has she availed herself of Rule 184a, Texas Rules of Civil Procedure in requesting that judicial notice be taken of those laws as required by this rule — consequently it will be presumed that the law of Florida and New York is the same in respect to the facts presented as that of Texas. John Hancock Mut. Life Ins. Co. v. Stanley, Tex. Civ.App., 215 S.W.2d 416, no writ history.

It is well settled in Texas that an award of permanent alimony is against the public policy. This Court so held in the case of McBride v. McBride, Tex.Civ.App., 256 S.W.2d 250, no writ history, wherein the authorities were extensively reviewed and Articles 4637, 4638, Vernon’s Civil Statutes were discussed as to the authority of the courts to divide property between the husband and wife by divorce proceedings.

It is also well settled in Texas that a contract that is against the public policy of the forum will not be enforced, even though the agreement may be valid under the law of the place where it was made. This Court so held in J. R. Watkins Co. v. McMullan et al., Tex.Civ.App., 6 S.W.2d 823, no writ history.

There is no doubt that the first agreement between the parties hereto made immediately prior to their divorce was an agreement for the husband to pay alimony to the wife for the rest of her life or until she should remarry. This contract would have been unenforceable in Texas under the rule announced in the McBride case, cited above.

Appellee contends that the second contract or new contract is the one to be considered by this Court inasmuch as the prior agreement has been superseded, that there is new consideration in that a prior disputed claim has been compromised. We cannot agree. It is necessary for appellee to prove the first illegal contract as part of her cause of action in presenting the second contract. We are asked to enforce a contract, the consideration for which is an agreement to dismiss a suit brought to enforce a contract which in Texas is against public policy. The one rests upon the other, is a mere modification of the first contract and falls under the prohibition against alimony contracts announced above. See Southern Health Ass’n v. Harris Memorial Methodist Hospital, Tex.Civ.App., 180 S.W.2d 169, writ ref., w. o. m.

The facts of this case are not disputed. There would be nothing gained by a new trial. The judgment of the Trial Court is reversed and judgment is here rendered that appellee take nothing by this lawsuit.

Reversed and rendered.


text:
    Dave RUBIN, Appellant, v. J. S. G. ADAMS, Appellee.
    No. 7251.
    Court of Civil Appeals of Texas. Amarillo.
    April 15, 1963.
    Rehearing Denied May 13, 1963.

      Wm. Q. Boyce, Amarillo, for appellant.
    Monning & Monning, Amarillo, for ap-pellee.
   DENTON, Chief Justice.

J. S. G. Adams, appellee, brought this suit against Dave Rubin, appellant, on two counts: One seeking recovery on a promissory note; and one to establish and recover accrued sums due under an alleged pension contract. The amount due on the note was stipulated, and the judgment entered on this count is not before this Court except for the question of the assessment of costs. The parties will be referred to by name.

The second count was submitted to a jury. In response to the special issues, the jury found in substance that Rubin promised Adams that if Adams would continue in his employ Rubin would provide Adams with financial security for life; that Adams relied on such promise; and that the letter in evidence was executed and delivered by Rubin pursuant to such promise. The trial court rendered judgment on this verdict in favor of Adams against Rubin. Rubin has timely perfected this appeal.

The written instrument in evidence referred to above reads as follows:

“February 27, 1959
“Mr. J. S. Gail Adams
“800 Bellview Street
“Amarillo, Texas
“Dear Mr. Adams:
“This is to advise you that as of the 15th day of March, 1959, you will cease your active employment with me. This termination date has been ascertained in order to afford you a thirty day period of notice from the date the oral notification was heretofore given you as regards the termination of your active employment
“For and in consideration of the service heretofore rendered and time devoted in my behalf during your employment with me, and as compensation for your long tenure of employment with me, I desire to place you on retirement status beginning March 15, 1959, as remuneration to you for the years of service and performance rendered by you during your employment with me. Accordingly, I do hereby agree to pay to you a monthly retirement pension for the remainder of your natural life. Such pension shall be paid to you for the remainder of your natural life as follows: The sum of $400.-00 per month payable in semi-monthly payments of $200.00 each in Amarillo, Potter County, Texas; the first of such pension payments to be made on the 1st day of April, 1959, and a like pension payment to be made on the 15th day of April, 1959, and like pension payments to be made on the first and fifteenth days of each succeeding month thereafter until your death. This agreement is to be hereafter binding upon me, my successors, assigns, heirs or legal representatives so long as you shall live.
“WITNESS MY HAND in triplicate originals this 27th day of February, 1959. '
“(Signed) Rubin
DAVE RUBIN”

Adams began his employment as office manager for Rubin on February 10, 1944, and except for a period of four or five months in 1947, he continued in this capacity until March 15, 1959. Mr. Rubin was primarily engaged in the oil business. Mr. Adams, along with two other employees of Rubin, testified to statements made by Rubin to Adams concerning security for Adams and his family. There is evidence oral references were made to Adams some twelve or fifteen times in the period from 1952 until the letter was written and delivered. No specific plan or amount was stated until between February 6 and February 9, 1959, at which time Adams testified Rubin orally promised to pay him $400.00 per month for the remainder of his life. Adams further testified he continued his employment with Rubin in reliance on these promises to provide him security for life. Mr. Rubin did not testify, and presented no ' evidence on the trial of the case. Some thirteen semi-monthly payments of $200.00 each were paid to Adams before they were discontinued by the appellant.

The primary issue to be decided is whether or not the written agreement is supported by adequate consideration. Appellant also contends the testimony relative to the parol agreements to pay the pension is a violation of the parol evidence rule, and as such, is not admissible. In effect Rubin takes the position that testimony of the parol promises are not to be considered, but that the written instrument constituted the whole agreement. The contention is then made that the letter shows on its face that the promise to pay a pension is based on services rendered in the past, and therefore, the promise is without consideration.

Although the rule is well established that parol testimony cannot be received to contradict, vary, add to or subtract from the terms of a valid written instrument, there are equally well established exceptions to that general rule. In McFarland v. Shaw, 45 S.W.2d 193, the Texas Commission of Appeals quoted with approval the following:

“Many of the exceptions to the parol evidence rule are quite as well settled as the general rule and require only a mere statement. It may not be contended for example, that, as between the parties to an instrument parol evidence is incompetent * * * to show that the writing is only a part of an entire oral contract between the parties.”

In the case at bar the parol evidence did not vary the terms of the written instrument. The parol evidence offered was for the purpose of showing the oral promise of the pension or other security had been held out to Adams for many years, and that these oral promises constituted a part of the over-all agreement. Until February 6 or the 9th of 1959 the oral expressions were in general terms. No specific amount had been mentioned until the figure of $400.00 per month was advanced by Rubin at that time. The written instrument of February 27 spelled out the pension plan in definite terms. The general rule is that the recitals of a written instrument as to the consideration is not conclusive, and it is competent to inquire into the consideration and show by parol evidence the nature of the real consideration. Roberson v. Keck, (Tex.Civ. App.), 135 S.W.2d 256, (Error Dismissed). Texas Company v. Tucker, (Tex.Civ.App.), 129 SW.2d 762, (Error Refused), Cochell v. Cawthon, (Tex.Civ.App.), 110 S.W.2d 636, (Error Dismissed). See 32 C.J.S. Evidence § 948, p. 869.

The parol evidence showed that the prior repeated promises of security constituted a part of the agreement between the parties. The written instrument had tire effect of putting this series of oral promises into operation, and reduced the plan to specific terms. Under this record the written instrument was only a part of the entire agreement between Rubin and Adams. We, therefore, are of the opinion the parol evidence offered was admissible.

We are next concerned with the basic question of whether or not the written contract is supported by consideration. It was stipulated that Adams was employed by Rubin in February of 1944 under an employment contract on a month-to-month basis, with each employment month commencing on the fifteenth day of each month and ending at the close of the fourteenth day of the next succeeding month. Aside from the general oral promises of security made over the years, Rubin made a final oral promise of a $400.00 per month pension in the first part of February of 1959. Adams placed the time of this last oral promise around February 6 or February 9 of 1959. It is uncontroverted this last oral promise, which was reduced to writing by the letter of February 27, 1959, was made prior to the beginning of the last month of Adams’ employment of February 15. This fact is alluded to in the letter itself.

As a general rule, it has been held that where the employer had a pension plan and the employees knew of it, continued employment constituted consideration for the promise to pay the pension. 42 A.L.R.2d, page 467, and cases cited therein. This general rule has been followed in Texas. Texas & N. O. R. Co. v. Jones, (Tex. Civ.App.), 103 S.W.2d 1043, (Writ Refused). The court there cited and expressly adopted the following conclusion of the trial court:

“That the offer made under said pension system was an inducement to the company’s employees to remain in its service and render to it the long continued faithful service, giving their entire time to its service, as required, in order to reap the benefits offered under said pension system, and that the rendering of the long continued faithful service of its employees as required by it, was a benefit to the railroad company, and that the offer and acceptance by performance constituted a mutual consideration.”

In our opinion the uncontroverted facts of this case bring it distinctly under the holding of the Jones case. Oral promises of a pension or security have been made to Adams on many occasions. Adams positively testified he relied on such promises and continued to remain in the employment of Rubin because of this inducement. Adams’ long service was obviously a benefit to his employer.

Appellant relied on Shear Co. v. Harrington, (Tex.Civ.App.), 266 S.W. 554, to support his contention that the contract is not supported by consideration. That case is distinguishable on the facts and is not controlling here. There the private pension was orally promised for the first time within the last monthly work period, and the court found there was no affirmative showing the employee relied on the offer nor did he accept it. In fact the employee expressed a desire not to retire and offered his services in the future when needed. Under the record in that case the court correctly held that the written instrument contained the full agreement between the parties, and that the instrument only cited a past consideration which will not support a subsequent promise to confer a benefit.

After carefully considering this record we conclude the written instrument before us was supported by valuable consideration and that it is enforceable.

By the last point of error appellant contends the trial court erred in assessing costs against it in count number one on the promissory note on the ground the amount recovered was far less than the amount sued for. The petition alleged the balance due on the $5,000.00 note was $3,-163.17. The parties stipulated the unpaid balance due was $2,713.17, and judgment was entered for the latter amount. The matter of assessing costs is within the sound discretion of the trial court. Copeland v. Bennett, (Tex.Civ.App.), 243 S.W. 2d 264, Rule 131, Texas Rules of Civil Procedure. Under the circumstances, no abuse of discretion is shown.

The judgment of the trial court is accordingly affirmed.

Affirmed.