author: TIREY, Justice.

text:
    John W. DEAN et al., Appellants, v. QUINCY MUTUAL FIRE INSURANCE CO. et al., Appellees.
    No. 4324.
    Court of Civil Appeals of Texas. Waco.
    July 29, 1965.
    Rehearing Denied Aug. 19, 1965.

      Austin Y. Bryan, Jr., Houston, for John W. Dean.
    Burke Holman, Houston, for Lititz Mut. Ins. Co.
    Thompson, Coe, Cousins & Irons, R. B. Cousins, Dallas, for Quincy Mut. Fire Ins. Co.
   TIREY, Justice.

This is a hurricane case. Dean and his wife brought the action on two insurance policies under which claim for loss to a dwelling and the household goods therein situated as a result of said hurricane from September 9th through 12th, 1961. The jury verdict was favorable to the Deans and the trial court rendered judgment for the Deans against the Lititz Mutual Insurance Company which insured only the dwelling but granted motion for judgment notwithstanding the verdict in favor of Quincy Mutual Fire Insurance Company (carrier on household goods) that appellants take nothing. The Deans have perfected their appeal against that part of the judgment in favor of Quincy Mutual Fire Insurance Company, and the Lititz Mutual Insurance Company has perfected its appeal from the judgment against it, and the cause is here on transfer from the Houston Court.

We affirm the judgment of the trial court.

Our Supreme Court, on June 23rd past, in Hardware Dealers Mutual Insurance Company v. Berglund, Tex., 393 S.W.2d 309 and Paulson, et ux., v. Fire Insurance Exchange, Tex., 393 S.W.2d 316, has announced the rule that we think is applicable and controlling to the disposition of this cause of action: “In Hardware Dealers Mutual Insurance Company v. Berglund, * * * we held that although it could be said that the hurricane caused the loss, yet, nevertheless the plaintiffs could not recover unless they were able to establish that the loss did not come within the exclusionary clause relating to ‘tidal wave, high water, or overflow, whether driven by wind or not.’ * * * In McDonald v. New York Central Mutual Fire Insurance Company, Tex., 380 S.W.2d 545, * * * we held that a plaintiff could recover under an insurance policy similar to the one now before us by showing that the damage to his property was occasioned by the winds of the hurricane rather than by the high waters accompanying the storm. In the Berglund case above mentioned the trial judge submitted the case to the jury upon the theory that the evidence disclosed that a portion of Berglund’s damage was not caused by an excluded peril, namely, ‘tidal wave, high water or overflow, whether driven by wind or not.’

“However, there was no evidence from eye witnesses as to damage done to the plaintiffs’ property by wind action alone, nor did anyone attempt to estimate the proportionate part of the damage caused by wind action, independent of all other causes, considering such factors as the force of the winds and the type of construction represented by plaintiffs’ building. It is essential that the insured produce evidence which will afford a reasonable basis for estimating the amount of damage or the proportionate part of damage caused by a risk covered by the insurance policy.” (emphasis added).

Since we are of the view that the foregoing rule announced by the Supreme Court is controlling here we will attempt to examine only that portion of the record which we believe is applicable under the above rule.

First of all, the Lititz Mutual Insurance Company plead the following exclusions:

“This policy does not insure against * * * C. Loss by earthquake; surface waters, flood waters, waves, tide or tidal wave, high water, or overflow of streams or bodies of water, all whether driven by wind or not, *

Quincy Mutual Fire Insurance Company specifically plead:

“Unless specifically named hereon, this company shall not be liable for loss * * * caused by * * * snowstorm, tidal wave, high water, or overflow, whether driven by wind or not; nor for any loss caused by rain, whether driven by wind or not, unless the wind or hail shall first make an opening in the walls or roof of the described building, and shall then be liable only for loss to the interior of the building, or the insured property therein, caused immediately by rain entering the building through such opening.”

It is the position of each of the insurance companies that the Deans did not carry their burden under the foregoing provisions of the policies sued upon and that under the rule announced in the Berglund and Paul-son cases that judgment should be rendered for each of the insurance companies. First of all, we are of the view that the Deans’ failure to sustain their burden of proof that an insured peril caused the damage to the household goods and the excluded causes did not cause the damage, that there is no error in the judgment in favor of Quincy Mutual Fire Insurance Company.

On direct-examination, Dr. Blumberg had testified that 90% of damage to the residence was caused by wind only, and testified on cross-examination in part:

“Q. * * * Let me take up one thing before we adjourn for lunch, Doctor:
Can you honestly say that the same 90% of your damage estimate applies to the furniture as it does to the house ?
A. No, sir.
Q. Certainly we have necessarily got to agree that there was a substantial loss by water, the high tide, to the contents of Mr. and Mrs. Deans’ house, do we not?
A. I am not sure what you mean by ‘substantial’, Mr. Cousins.
Q. Well, even if the water was only two feet deep in their home, it was causing damage to the contents of it?
A. Yes, sir.”

No other testimony appears in the record that is in conflict with Dr. Blumberg’s testimony with reference to the* damage percentage wise to the plaintiffs’ personal property. For this reason it will not be necessary to discuss any further any of the testimony relating to damage sustained to the household goods.

We will now give our attention to the testimony relating to damage sustained by the Deans to their home. Testimony was tendered to the effect that this home was a one story building and plaintiffs had been living in it for some several years prior to the time that Carla struck.

Mrs. Barr, who lives in the area about 800 feet from the Dean home, testified to the effect that the Barr home was constructed with an attic bedroom with windows facing both sides, and that she and her husband, son and a young friend remained in their home from September 9th to September 12, 1961; that on Monday morning and afternoon the windows in their home began to blow out; that she knew the sounds of hurricane winds, and that during the time the O’Sullivans’ house, 200 feet from the Barr place, was plainly visible for a while, but that a little later it had disappeared; that the roaring noises heard in the Carla storm were in effect similar to those she had heard in West Texas when she was ISO feet from a tornado; that after the storm had subsided, she inspected the O’Sullivan home, which was a short distance from the Dean place, and that the only thing left was the foundation. She testified to the effect that she heard three roaring noises, one about 6:00 P.M., on Monday, September 11th, and the next about 11:30 P.M., on that date, and the next about 2:30 A.M., on the morning of Tuesday, the 12th; that the noises were going northwest over her house coming from the southeast. With reference to the roaring noises that passed over her house between 2:30 and 3:00 on the morning of the 12th, Mrs. Barr testified specifically:

“Q. Now, Mrs. Barr, in each of those particular occurrences of roaring noises and the phenomena that you have described for us, did you not experience any change in your physiological or body feelings or such as that? If you had any physical reaction describe it for us please?
A. It was hard for me to breathe.
Q. You remember that?
A. Very clearly. ~ ~
Q. Did that occur or not in each of those occurrences when you heard that roaring noise?
A. It was most marked about the time of the noise at around 2:30; I felt it to some extent also at 11:00, but at 2:00 something, whatever would have been, well, I was frightened because it was hard for me to get my breath.
Q. Did you experience any other type of physical change or condition about you that you recognized at that time ?
A. Well, everybody’s voice seemed very far away. Even the ones who were, we were just huddled together and their voices seemed very, very far away.
Q. How long did this condition that you personally sensed, or difficulty of breathing and the vacuum type area where the voices were far away, how long did that last?
A. Well, I don’t know; it must have lasted some more than eight minutes, perhaps.
Q. Did anything occur to your house itself; did any condition occur there that you noticed different from the way this hurricane winds were affecting it?
A. Well, the roof seemed about just to come in. We were sitting under the crest of the roof and it seemed as if it were just going to close in on the spot where we were.
Q. What occasioned you to feel like you wanted to go out on the roof ?
A. Well, so I could get more fresh air and the fact that I did not want to be crushed because I had a feeling this roof was going to close in on us.”

Mrs. Brieden testified to the effect that she had been in tornadoes before in Louisiana, and that she lived in the particular area where the Deans lived, and she heard a roaring over her house about dark on September 11th; she said her house was not more than a mile from the Dean home, and that her house was not subject to the invasion of any ocean water, but when the roaring started the rain started pouring in though the walls and roof of her home; that the house breathed in and out, and the walls moved in and out during the roaring noise of the passing of the tornado; that the roaring sound of the winds during the passing of the tornado were different from the Carla winds preceding and following the roaring noise; that the noise seemed to be traveling in a direction across Burnett Bay between her house and the ship channel; that this would place it over Brownwood Peninsula where the Deans lived; that the treetops around her place were twisted out and the water was pouring down from and through the roof of their home and shaking it.

Mrs. Underwood, who lived directly across the street from the Deans, testified she had lived at that location some IS to 17 years and that she and her husband had a nursery on part of their land across the street from the Deans; that they had a large stock (value about $35,000.00); that part of the nursery had a lot of canned stock; that is they used cans, formerly lube cans, quart cans, gallons, etc., to plant and carry mobile young nursery stock in, such as camellias and other shrubs; that the bulk of the can stock was under an oak tree, not over 200 feet from the Dean house, and that these cans were sitting on the ground. She testified in part (after being handed plaintiffs’ exhibit 6) :

“A. This is the can stock that is here. These are gallon cans right in here * * * and here are gallon cans * * *. This * * * is a 21/2 gallon and a S gallon can size.
Q. I see.
A. And they all consist of azaleas, camellias and * * * ?
Q. Now, this question, and I want you to be very careful in answering, please. Had any of those cans in any way been changed or altered or disturbed by you or anyone after Hurricane Carla?
A. No.
Q. Tell the jury whether or not these cans appearing in plaintiffs’ No. 6, are exactly as they appeared after the passage of Hurricane Carla and any ocean waters that came in over your planted area?
A. These are exactly the way they were before and after Hurricane Carla.
Q. Well, how much water did you have in your house, please mam, if you recall?
A. Five feet.
Q. Alright, had any water that came across there, were any of these cans knocked down or beaten up, or washed away in any way?
A. No, this is the miracle that we contend.
Q. What was done to your house?
A. 85% destroyed, we had a brick home.
Q. Tell us what the condition of the bird bath was and where it was located when you got back and your house was 85% disappeared and destroyed ?
A. It was still there in its exact formation.
Q. You mean it hadn’t toppled over or been torn down ?
A. No, sir it had withstood all the elements that had come.
Q. Alright, do I understand you to say then, that as far as the lower part of your house is concerned that the brick veneer had fallen out or appeared to have?
A. As I so stated, that it was as if it, I am using it loosely, had exploded on the inside.
Q. Well, the point I am making is * * * it had fallen out?
A. Yes, it was out.”

Mrs. Wright, who lived in the area of the Deans’ home, testified to the effect that she stayed in the Burnett school on North-shore Bayway Drive during the hurricane; that she went there on Sunday and stayed until Tuesday night. She testified to the effect that about 2:30 on the morning of Tuesday, September 12th, she heard a roaring noise and it sounded like hundreds of locomotives; that the noise was different from the hurricane winds that she had been hearing, and that the roaring noise and winds accompanying it came from the southeast and during the passage the rain came through the school building but the roof did not blow off; that the wind lasted only a few seconds.

Mr. Hutto, a restaurant owner, who lived in this particular area said his home was on South Burnett Drive, Lakewood Addition, Baytown; that his home is on Burnett Bay immediately across the Brownwood Peninsula where the Dean house is located; that he was at his home at noon on Monday, September 11th, and had water in his house at noon, less than 24 inches; that he came back at 4:30 and conditions were about the same; that he could see all of Brownwood Peninsula where the Dean house was located, and that at about 5:30 he could see water spouts, in fact, three water spouts, just a short distance from the Dean house; that the water spouts were going in a westerly direction moving from easterly or southeasterly direction, and that they disappeared up the Houston ship channel ; that the water spouts passed by in less than thirty minutes; that while the water spouts were passing it caused a sudden influx of ocean waters, and while this was going on a large tree in his yard was blown across the driveway.

Mrs. Dean testified as to the appearance of their home after the storm. She stated the garage normally faced west but when they returned the garage roof was on the ground and facing in the opposite direction ; facing in a direction from which the southeasterly winds coming across the water sections came from; that the garage building was fastened to the concrete beams by plates and bolts; that items that had been in the kitchen were found in other parts of the house and the furniture all broken and crushed and torn apart; that the nylon curtains had been wrapped around a sash.

Plaintiff Dean, with reference to exhibit 20 testified in part:

“Q. Alright, sir, now I want you to hold up that so that I can, you see this door opening that appears there on plaintiffs’ 20?
A. Yes, sir.
Q. Tell us whether that was your front door, or not?
A. Yes, sir. It was.
Q. I want you to tell us and please give it the most careful recollection, how that door was hung? As to whether it was swung in or swung out?
A. The door swung in.
Q. How was the jam or frame assembly of that door connected to the general structure?
A. How was it?
Q. Yes, how was it built or connected to the studding?
A. It was nailed securely * * *.
Q. Alright, let’s get back to it. Now, did you happen to observe that particular door where the door, and the frame and the jam had been connected to the general structure, and can you determine whether that framing was still there?
A. Yes, sir. I observed it.
Q. Well, was the door frame and jam still there when you first came back ?
A. No, sir, it was not.
Q. I see. Well, we will have some detail examination of that a little later, but I wanted to get your recollection when you first went in there, whether that door in the framing as it appeared there was just that way.
A. Just exactly like the picture shows it.”

With reference to exhibit 32 concerning a tree he testified in part:

“Q. And where is that part or portion? If you will hold it up and indicate it to the jury.
A. Right here (indicating). Right in the center, right here where my finger is.
Q. Now, what has been there in your knowledge and and above that prior to Hurricane Carla?
A. Well, it had that top of the tree, the actual top I mean, and it extended up much higher.
Q. * * * About how much higher did the top extend above the area shown here in plaintiffs’ No. 32 as being absent?
A. It would be a rough estimate, but I would say between six, at least six feet and possibly over.
Q. How much diameter do you recall was in this central limb or the trunk of the tree that appears to be broken off or twisted off or missing?
A. Roughly, 4 inches.”

He further testified to the effect that the interior of his home was damaged; that the walls were pushed out or inward and so forth; that the bathroom was located between two bedrooms, and that the pictures shown in the exhibits with reference to the damage to the bathroom were taken in January 1964, which showed the Venetian blinds wrapped around the bathroom curtain in a manner they were found immediately after the storm. Many pictures were introduced by plaintiffs showing Deans’ home after the storm. It had not been reopened nor occupied since Hurricane Carla and these pictures, together with the testimony of the witnesses, and the many exhibits, were for the jury to draw their own reasonable inferences and deductions as to the causation of damages sustained by the Deans. With reference to the windows he said that after Carla the glass in the window panels was broken and on the outside of the house rather than inside.

Dr. Randolph Blumberg testified to the effect that he was a graduate Ph. D. of A & M College; that he held a Bachelor of Science degree in electrical engineering, and that he had worked in design engineering for airplane wings and forms; that his Ph. D. came about from a fellowship in engineering and oceanography, which included meteorology; that he had been very active in analyzing wave, wind and wave forces on offshore and inland structures; that he had worked with the Weather Bureau on National Hurricane Research projects; that he had prepared himself as a specialty on Hurricanes since 1955, when he worked for Humble Oil and Refining Company, studying inland wind storms, tornadoes and cyclones, as well as hurricanes. He testified in part:

“Q. * * * With respect to weather phenomenae, tornadoes or hurricanes, each has its own trademark or stamp or tell tale it leaves in the character of damages that follow it. Is that or not well known to the scientist and engineers in oceanography and meteorology? A. Yes, sir, except that if I may make this exception. A hurricane is so much broader and larger scale weather phenomenon that it has frequently tornadoes in it, which was the case of Carla.”

Dr. Blumberg testified to the effect that the roof of the Dean Home was out of plumb vertically; that he believed the house before the storm was more than ordinarily airtight by the way it was constructed; that he noticed the corners were damaged by racking type of damage; that the large bolts were sheared off and the walls were pressed outward. With reference to his opinion as to what caused the exterior wall of the den to shear the bolts and to hang from the upper attachment and to hang outward, he testified in part:

“Q. I caution you please in giving that opinion to give us the reasons for that opinion, the physical conditions you attach importance to in reaching that opinion.
A. Yes, sir. It is my opinion that the walls failed — this particular wall— section failed as a result of a pressure difference between the — inside the house and outside of the house at the point — at the time of failure, and this pressure difference gave an unbalanced force which acted from the inside of the house to the outside of the house. It is somewhat analogous to taking a paper bag and filling it with air and suddenly snapping it. • It gives a loud retort and explodes. Similarly if you reduce the pressure base of something like a tornado— or if a tornado is here reducing the pressure on the outside wall of this home, it can cause an unbalanced force to exist from the inside out which can measure up to about 170 pounds per square foot in not a very major tornado. This particular unbalanced force — a force substantially less than this — would be adequate to cause these particular bottom bolts to fail and to allow it to move outward in the direction of lowest pressure or in the direction of least resistance.
Q. In that connection, Mr. Blumberg, we have two concepts being projected here. One by the plaintiff that this property was damaged by Hurricane Carla, by the defendant that rising water going up and down in that property occasioned damage. I want your professional opinion based upon your experience and research and knowledge whether or not you can see any evidence of rising water having occasioned any of the rupture and disturbance of that wall in the section we have been talking about?
Q. Do you have such an opinion as to whether it did or did not have any influence ?
A. Yes, sir. Rising water without being, without the advent of other systems, sueh as waves or tides or main big currents, rising water tends to balance itself in time such that the pressure on the inside and outside are nearly equal. So in the event of rising water, there is no unbalanced force to cause any damage such as this, for simple rising water.
Q. Now, may I query you again as to whether you have an opinion as to where that wall would have been if there had been the impact or wave action against it. Would it have come out or gone in ?
A. It would have gone principally in because the forces in waves are primarily crest forces. The crest forces are greater than the trough forces. They tend to batter in, break in and tear up things in the direction of wave movement.
Q. Well, what is the extreme significance to you of the fact that this wall has pushed outward and has sheared off the bolts in the direction of going back against the area of impact of winds?
A. Well, the prime significance is that this is typical of tornado conditions whether or not the 170 pounds per square foot is achieved. As I have pointed out, this is not a necessary condition at all here. A much lower force would be able to push this out, but also there is no evidence to any significant wave action here, as either from scour — there was no scour evident and in these areas where we had substantial scour during Carla, we still have evidence, unless these have been filled since that time. Further, there was no break in damage or destructive type forces from the principal wave direction or the direction of wave onslaught, if there were waves of any size there.
Q. Comparable to your first opinion given us, if you develop a negative pressure on the opposite side from the impact of the wind, in hurricane winds and are on the lee-side, do you or not create an imbalance between the air pressure inside and the air pressure on the back side of the house?
A. Yes, sir. You have an imbalance, whether or not the pressure is higher in the home to begin with, you still have an imbalance due to fluid flow of the air over areas of fluid, and as it flows over the body, it causes this vacuum force, which results in a pressure on the outside.
Q. If you get reduced pressure on the outside, and have a higher pressure on the inside of a structure—
A. Well, the differential gives rise to the force which we have just mentioned here. If that pressure differential is greater, then the force is great, causing the air on the inside to want to move outside, again, as in the paper bag, when you suddenly snap it, you confine it, and the air needs to get out, and it will leave through — by making an opening through the paper sack.
Q. Well, let’s get back to that, in the walls of a structure:
What does it do to the walls of a structure, if it has enough imbalance of pressure?
A. It will break the walls, forcing them in an outward direction, out away from the center of the structure.
q. * * * Ten us whether that is typical phenomena in either hurricane winds or tornado winds ?
A. This is typical, yes, sir.”

There was also testimony to the effect that the walls of the garage were gone, and that the garage roof remained, but that it had been twisted around to the left or in a counter-clockwise direction, and had dropped down in a distorted position. There was also testimony to the effect that there were large bolts that fastened the garage to the concrete beams, but that these bolts were twisted in counter-clockwise direction, and with reference thereto Dr. Blumberg said:

“A. Allright, this bolt you will also note is turned away from its normal straight up and down position. At this time, it is turned to the rear part of the garage structure, which existed, and it is also —you can tell by the shadow here — moved—well, that is, by observation — moved in a direction such that it was bent toward the rear part of the garage in this particular picture.
Q. I want you to start, first, and give me your statement as to whether you do or do not have an opinion as to the position of these various bolts that you have described them, having any significance in terms in what character of weather phenomena may have passed on or around or about this area of the garage ?
A. To answer your question, this particular study was made, jgade with considerable care, to establish whether or not there was any evidence here of any type of twisting or rotation movement of this particular part or this particular structure. In particular, the observation was made that in each case, these bolts were, in fact, leaning in a direction which is characteristic of, or counterclockwise, characteristic of the direction of twisting which is typical of tornadoes when they take and move structures off of their paths.
* * * * * *
A. Well, Mr. Bryan, I believe as I mentioned a moment — started to mention a moment ago — that this particular structure was twisted counter-clockwise from its foundation beam and pickedup and laid down very closely to its original position, with the walls blown out, and also laid down, in this particular section, as you see the fore peak, or top of the roof peak, which you have given me to assume, which is the front of the house, which has been so testified, it is in effect in a counter clockwise direction; that is moved, twisted, counter-clockwise, from its normal position as described.”

Dr. Blumberg further testified on cross-examination :

“Q. How in the world do you arrive at a percentage by your estimate of 90% damage by wind to this house ?
A. I have arrived at this estimate by looking at the structure, determining the general features that it appeared to have heavily racked and twisted, most of the damage resulting from separations; doors physically being moved from one place to another; major sections of the wall broken out, and on this basis, I have arrived at the best estimate that I was able to make on the relative value or cost of damages resulting from a tornado or high wind system.
Q. Your first inspection was made in January, 1964?
A. Yes, sir, that’s correct.”

On redirect examination Dr. Blumberg testified:

“Q. Have you or not had any occasion to observe in the restoration in some of those places, the very type of construction as appeared in the Dean place, having interior walls, having shoe-moulds, having base-plates, having the usual construction of sheetrock and such as that — have you observed any of them, where they had just — just had water rising up and down, where the repairs and cost of repairs have been made and sustained ?
A. Yes, sir.
Q. Well, in terms of what I am trying to find out, how you retion-alized and got your 90% damage, whether or not those factors and actual experiences and knowledges of what kind of damage rising water alone gave or made, did you take that into consideration?
A. Yes, sir.
Q. You did?
A. I did.”

Perhaps we should state that the Lititz policy in suit contained what was designated 148-S Endorsement, which was attached to the policy and provided:

“Subject to the provisions of this form and of the policy to which this form is attached including endorsements thereon, this policy insures against all risks of physical loss to the described dwelling * *

With reference to the damage of the property the witness Aylor testified to the effect that he was a local contractor and that it would cost approximately $9200.00 to repair the dwelling and the garage. He testified on cross-examination in part:

“Q. And you have made no effort whatsoever to make any distinction between the wind, on the one hand, and the combination of wind and water on the other?
A. I do recall making this statement, that some of the things that I did see, it seemed impossible that it could happen from water alone.
Q. Yes, but that very possibly could have been a combination of the water and the wind, or it could have been the wind, is that a true statement? (emphasis added)
A. It could be the wind, (emphasis added)
Q. All right, or it could be a comi-nation, couldn’t it, of the wind and water pressures, true?
A. I don’t think water would take a door out — I mean, I can’t see where it would take a door out in one house, against the stops, and not do it in another. Now, I made lots of appraisals in houses where every door — I mean, it had the same amount of water, most of them down there did — every door and wallboard and all was still intact, had the same amount of water.
Q. I appreciate that, but the point I make there is that it is impossible for you to tell whether that would be wind alone, water alone, or a combination of the two, isn’t that a true statement?
A. It would be impossible to tell, but I can’t see why it would do it in one house, the damage would be one way, and then another house—
Q. Well, I concede that there was a wind variance in the dwellings and homes, particularly in the Brown-wood area, but the point is this: (emphasis added) As far as this Dean home is concerned — that is what we are concerned with today —the question of winds versus water versus a combination of winds and water — you have made no attempt to differentiate in your estimate of $9200.00. That is a true statement, isn’t it?
A. In my estimate, no, there is no differentiation.
Q. All right, sir.
A. It is a cost to repair all of the damage that is done.”

Dean testified that he had an opinion as to the value of the property immediately before it was damaged and that it was $12,750.00, and that immediately after Carla its value was $3550.00. On cross-examination he testified to .the effect that the house was built in 1946 by Mr. Bishop, who was his father-in-law, and that it cost $8500.00, and that there was a room added subsequent to its original building; that the part added was a large walk-in closet, 6 x 10, and that the entire property, including the garage, was $12,500.00. He further testified in part on cross-examination:

“Q. Have you reviewed any figures here since 10:00 o’clock this morning in preparation for this testimony ?
A. I was asked to refresh my memory, yes, sir.
Q. By what?
A. About what the price — the price of the house was worth before the storm and after the storm.
Q. All right, who made up those figures ?
A. I had a real estate appraisal of the house.
Q. Excuse me, I am sorry, I didn’t mean to interrupt you, Mr. Dean, and you used the real estate appraisal at least as a part of the basis for your opinion ?
A. I used it all together as a basis of my opinion.
* * * * * *
Q. Is it strictly happenstance that your opinion of value before and after is almost exactly the same as Mr. Aylor’s repair estimate?
A. I don’t believe I understand your question.
******
Q. Why does it happen that your estimate of value is so close to the repair estimate made by Mr. Aylor?
A. May I make a statement?
Q. I would like to have the question answered ?
A. In my own personal opinion, Mr. Cousins, the property out there at the present time is valued that value that I gave a moment ago $3550.00.” (emphasis added)

Since the jury found that a portion of the damages to the Deans’ dwelling was directly caused by the forces of wind alone as distinguished from surface waters, flood waters, waves, tide, high water, or overflow of streams or bodies of water, all whether driven by wind or not, and further found that the reasonable cost of repair, with material of like kind and quality and within a reasonable time, to the dwelling attributable to or caused by the forces of wind as distinguished from surface waters, flood waters, waves, tide, high water, or overflow of streams or bodies of water, all whether driven by wind or not, to be the sum of $9200.00, and since Dr. Blumberg testified specifically in his opinion that 90% of the damage was due to wind o>r wind system as distinguished from damage by water, and since the trial court required a remit-titur of 10% of $9200.00 on penalty of granting a new trial, the sole question here is: Does this record bring the Deans within the rule announced by the Supreme Court in the Paulson and Berglund cases? We think it does.

Our view of the evidence tendered in this cause, together with all the surrounding facts and circumstances with reference to what happened, gleaned from the best evidence available as to the damages to the Deans’ residence sustained as a result of Hurricane Carla by wind alone, and the testimony of Dr. Blumberg as an expert, under all the surrounding facts and circumstances shown in this record, together with the investigation that he made of the building after the storm, has probative force, and that it is sufficient to sustain Dr. Blumberg’s testimony to the effect that 90% of the damage to the Dean residence was the result of the wind alone, and is sufficient in connection with all of the other testimony tendered that 90% of the damage sustained by the Deans to their residence was the result of the wind alone as distinguished from the damage sustained by water.

In Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359, pt. (1), page 363, our Supreme Court said:

“The judgment of the Court of Civil Appeals in favor of Continental must be reversed if there is in the record before us evidence of probative value which, with the reasonable inferences therefrom, will support any one of the findings of proximate cause. Hall v. Medical Bldg, of Houston, 151 Tex. 425, 251 S.W.2d 497, 498. Moreover, we must approach a determination of the question in the light of our former admonition regarding questions of ‘no evidence’ that ‘Appellate courts are without authority to set aside jury ver-diets, particularly on questions o £ proximate cause in damage suits, upon conflicting facts — the undisputed facts must be ample and clear, and the circumstances most exceptional to justify such action.’ Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982, 983.”

In Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, our Supreme Court made the following pronouncement:

“ * * * the action of the trial court in granting judgment non obstante veredicto, it must be determined that there is no evidence having probative force upon which the jury could have made the findings relied upon. * * *
“ ‘It was the jury’s province to weigh all of the evidence, to decide what credence should be given to the whole or to any part of the testimony of each witness. “The jury were the judges not only of the facts proved, but of the inferences to be drawn therefrom, provided such inferences were not unreasonable.” ’ ”

In Miller v. Fleming, 149 Tex. 368, 233 S.W.2d 571, (Sp.Ct.) we find the following pronouncement:

“ ‘The law only demands the best proof of the transaction that it is susceptible of, and when that is produced then it becomes a question whether or not its probative force is such as to establish its existence’. The rule by which presumptions of fact are made admissible emanates from the evidence. The application of the rule depends upon the character of the evidence, and its application is liberalized when the evidence is circumstantial.”

In Olds v. Traylor, Tex.Civ.App. 180 S.W.2d 511, (writ ref.) this court said:

“Where the facts are controverted, or are such that different inferences may be reasonably, drawn therefrom, an issue of fact is raised; it is only where the evidence is harmonious and consistent, and the circumstances permit of but one conclusion, that the question becomes one of law for the determination of the court. An issue of fact is raised ‘if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.’ ”

Our Supreme Court has not changed or modified the rule in the foregoing cases.

We think the foregoing pronouncements of our Supreme Court, when applied to the testimony tendered in this cause, together with all the surrounding facts and circumstances shown by the record, are sufficient to afford a reasonable basis for establishing a reasonable amount of damage or proportionate part of damage caused by the wind alone to the Deans’ dwelling and that such coverage is within the policy. We are of the further view that the verdict in favor of plaintiffs as to the damage to the residence is not against the great weight and preponderance of the evidence, and that it is not unjust. Therefore, each of the points of the Lititz Mutual Insurance Company assailing the judgment entered against it is overruled. Likewise, Deans’ counter-points are overruled. Each of the points tendered by the Deans assailing the judgment entered in favor of Quincy Mutual Fire Insurance Company is likewise overruled.

Accordingly, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    Jack V. STONER, Appellant, v. CITY OF DALLAS, Appellee.
    No. 16458.
    Court of Civil Appeals of Texas. Dallas.
    June 25, 1965.
    Rehearing Denied July 23, 1965.
    Strasburger, Price, Kelton, Miller & Martin, and Frank L. Skillern, Jr., Dallas, for appellant.
    N. Alex Bickley, City Atty., and Kenneth C. Dippel, Asst. City Atty., Dallas, for appellee.
   BATEMAN, Justice.

The appellant Jack V. Stoner sued appel-lee City of Dallas for damages to his home resulting from the alleged diversion of flood waters of South Ash Creek, which flows adjacent to his home. The trial court sustained the appellee’s motion to dismiss the suit on the ground that the petition failed to state a cause of action. The appellant pitched his suit upon the alleged violation by appellee of Vernon’s Ann.Civ.St. Art. 7589a, which provides in part:

“It shall hereafter be unlawful for any person, firm or private corporation to divert the natural flow of the surface waters in this State * * * in such manner as to damage the property of another, by the overflow of such water so diverted or impounded, and that in all such cases the injured party shall have remedies, both at law and in equity, including damages occasioned thereby * *

The rule at common law was that a landowner could for his own protection divert from its natural course surface water collecting upon his own land from rainfall, even though his act in doing so resulted in injury to the land of his neighbor. But this rule was changed by the above statute. Hester v. McAdams, Tex.Civ.App., 203 S.W. 121, wr. ref.

The motion to dismiss was based in part on the proposition that it appeared from appellant’s own petition that the flood waters he complained of were not “surface waters” as contemplated by the Legislature in enacting the said statute, and that although appellant alleged the flood waters were “surface waters” such allegation was patently a mere conclusion.

The essential parts of the appellant’s first amended original petition were as follows:

“During the year 1961, the Defendant, through its agents and employees, constructed a concrete bridge at the area where Lakeland Drive crosses South Ash Creek, City of Dallas, State of Texas. In conjunction with this construction, the channel of said South Ash Creek was widened, deepened and straightened by the Defendant through its agents and employees, from a point extending from the concrete bridge to a point approximately 200 feet east and upstream from such bridge. Plaintiff’s home is located immediately west and downstream from said construction. Because of said construction, the natural flow of the flood waters exceping [escaping] from the natural stream of South Ash Creek, which are surface waters in the State of Texas, was diverted in such a manner as to damage Plaintiff’s home, by the overflow of such waters so diverted, as hereinafter alleged.
“On or about the 28th day of April, 1963, a rain fell in the area of Plaintiff’s home and the area basin of South Ash Creek and because of the action of the City of Dallas in widening, deepening and straightening the channel of South Ash Creek, Plaintiff’s property was flooded by the flood waters and overflow of South Ash Creek, his gravel driveway washed away, his lawn eroded and his property was covered with debris. * * *
“The hereinabove described widening, straightening and deepening of South Ash Creek by the defendant * * * was in contravention of Article 7589-a, Texas Revised Civil Statutes, which provides, inter alia (Here the petition quotes that portion of Art. 7589a quoted above).
“Because of the hereinabove described construction, which diverted the natural flow of the flood waters of South Ash Creek, Plaintiff’s property, which includes a house and lot, located at 2224 Lakeland Drive, Dallas, Texas, has been damaged permanently.”

Thus is drawn the narrow issue of whether or not the waters complained of were “surface waters” contemplated by the statute or were merely part of the stream itself.

Perhaps the leading Texas case on the subject is Sullivan v. Dooley, 31 Tex.Civ.App. 589, 73 S.W. 82, no wr. hist., wherein we find this language:

“There has been a great diversity of opinion as to the rights and liabilities of parties diverting surface water from their land, but not more so than on the question as to what constitutes surface water. Some courts hold that flood water from a stream is surface water, but the larger number class such water as a part of the stream, and hold that it is not surface water. In the case of O’Connell v. [East Tenn. V. & G.] Railway [Co.] [87 Ga. 246] 13 S.E. 489, 13 L.R.A. 394, 27 Am.St.Rep. 246, the authorities on the question as to what constitutes surface water, and as to the rights of parties to divert waters, whether surface or otherwise, are fully reviewed by the Supreme Court of Georgia. The court said: ‘If the flood water becomes severed from the main current, or leaves the stream, never to return, and spreads out over the lower ground, it has become surface; but if it forms a continuous body with the water flowing in the ordinary channel, or if it departs from such channel animo revertendi, presently to return, as by the recession of the waters, it is to be regarded as still a part of the river. The identity of a river does not depend upon the volume of water which may happen to flow down its course at any particular season. The authorities hold that a stream may be wholly dry at times, without losing the character of a water course. So, on the other hand, it may have a flood channel to retain the surplus waters until they can be discharged by the natural flow.’ We think the language quoted is supported by common sense and experience, as well as the weight of authority.”

The court also quoted with approval the following from Cairo V. & C. Ry. Co. v. Brevoort, 62 F. 129, 133, 25 L.R.A. 527:

“The waters cast into a stream by ordinary floods must have a channel in which they are accustomed to flow, and, if they have, that channel is a natural water course, with which no riparian proprietor can lawfully interfere to the injury of another. If there is a natural water way or course, and its existence is necessary to carry off the water cast into the stream by ordinary floods, that way is the flood channel of the stream; and, if it is the flood channel of the stream, the water which flows there cannot be regarded as surface water. Surface water is that which is diffused over the ground from falling rains or melting snows, and continues to be such until it reaches some bed or channel in which water is accustomed to flow. Surface water ceases to be such when it enters a water course in which it is accustomed to flow; for, having entered the stream, it becomes a part of it, and loses its original character. * * * It must necessarily follow from this general principle that where water naturally flows, though the volume may change with the varying seasons, there is a natural water course, even though at times the place where the water flows in ordinary floods may become entirely dry.”

It would seem that the test applied in the foregoing cases was approved and adopted by the Texas court and, so far as we can find, no Texas court has approved or adopted any other. See Sun Underwriters Ins. Co. v. Bunkley, Tex.Civ.App., 233 S.W.2d 153, wr. ref.; Hoefs v. Short, 114 Tex. 501, 273 S.W. 785, 40 A.L.R. 833; International-Great Northern R. Co. v. Reagan, 121 Tex. 233, 49 S.W.2d 414; Bass v. Taylor, 126 Tex. 522, 90 S.W.2d 811; and 60 Tex.Jur.2d Waters, § 199, p. 504. Therefore we adopt and apply it here.

It is quite obvious, we think, from the language used in his petition, as quoted above, the appellant is not alleging that his loss was caused by flood water which has become “severed from the main current, or leaves the stream, never to return,” but is alleging damage from flood waters which form “a continuous body with the water flowing in the ordinary channel.” That being true, it is quite clear to us, as evidently it was to the trial court, that the petition did not allege a cause of action in that the statute upon which the pleading is bottomed prohibits only the diversion of “surface waters” and the waters alleged to have damaged appellant’s property were obviously not “surface waters”. The judgment dismissing the case was correct, and we therefore affirm it.

Affirmed.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ralph Boots RATLIFF et al., Appellees.
    Court of Appeals of Kentucky.
    June 18, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Edmond H. Tackett, Pikeville, for appellant.
    J. Ervin Sanders, Pikeville, for appellees.
   PALMORE, Judge.

On February 25, 1958, a truck owned by appellee Ratliff and being driven by his employe, appellee Coleman, struck and damaged a highway bridge. Five years and one day later the state highway department filed this suit against them to recover the cost of repairs occasioned by the accident. It appeals from a judgment of dismissal entered pursuant to a plea of the 5-year statute of limitation, KRS 413.120 (4), which reads as follows:

“The following actions shall be commenced within five years after the cause of action accrued: * * * (4) An action for trespass on real or personal property.”

The theory on which the state bases this appeal is that subsection (4) of the statute applies only to a technical trespass and not to a negligent wrong. Otherwise, it says, there would be no legislative purpose in subsection (6) of KRS 413.120, which applies the same limitation to an action for “taking, detaining or injuring personal property, including an action for specific recovery.” If this position is correct, the period of limitation on an action for negligent damage to real estate would be ten years, under KRS 413.160, the catch-all statute.

To make a long story short, we do not agree. We are not disposed to haggle over whether one who in using a public highway carelessly but unintentionally drives a vehicle onto a bridge railing commits a common law trespass against the state. Perhaps the reason for KRS 413.-120(6) is that there is a greater variety in species of personal property, and of ways in which one’s rights can be violated, than is the case with respect to real property. In any event, it is unlikely that there ever was a legislative intent to omit from the statute suits for damages to real estate not sounding strictly in “trespass.” So it is, for example, that the statute has been applied to actions for waste committed by a life tenant, Fisher’s Ex’r v. Haney, 180 Ky. 257, 202 S.W. 495 (1918), and suits for damages resulting from permanent nuisance, Kentucky West Virginia Gas Company v. Matny, Ky., 279 S.W.2d 805 (1955). We now hold categorically that it applies to actions for damages to real property resulting from negligence.

The judgment is affirmed.

      . It is interesting to note, however, that from time immemorial KRS 454.040, which provides that in “actions of trespass the jury may assess joint or several damages against the defendants,” has been held applicable to personal injury actions based on negligence. See Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165 (1949).


author: MONTGOMERY, Judge.

text:
    Omar TAYLOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 2, 1965.
    Francis E. Bauman, Arnold J. Lemaire, Louisville, for appellant.
    Robert F. Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Omar Taylor was convicted of storehouse breaking and was sentenced to confinement for three years. KRS 433.190. On appeal he argues that he did not receive the fair trial guaranteed by the Constitution of the United States and by the Constitution of the Commonwealth of Kentucky, in that certain evidence should not have been admitted, the evidence was insufficient to sustain a conviction, and the court failed to instruct the jury properly.

On December 24, 1963, in Louisville, about 12:45 a.m., Edward Phillips, a merchant policeman, saw a man park a car behind the ticket shack of the parking lot at Fourth and Broadway. He saw the man go to the door of the shack with a stick of wood. The officer then heard a crash and saw the man put something into the car. As the man started back to the building he saw the officer approaching, jumped into the car, and attempted a getaway. The car skidded; the man abandoned the car and fled oh foot.

The officer said that he got as close as twelve or thirteen feet from the man and could see the side of his face sufficiently to distinguish his facial features. An adding machine taken from the building was found on the front seat of the car that the man had been driving. Appellant was subsequently determined to be the owner of the car.

Appellant insists that the evidence of identification is insufficient to sustain the verdict. This is based on testimony that it was snowing and that appellant had a mustache, which the officer said he did not see. Admittedly, the officer identified appellant in a police captain’s office a few days after the break-in. Appellant is critical of the failure to present fingerprints or evidence of identification in a “show-up” or “line-up.” This lack of evidence is immaterial. The question is whether the evidence submitted is sufficient.

In a prosecution for storehouse breaking, possession of stolen property by the accused is sufficient to warrant the submission of the case to the jury and raises a presumption of guilt. Cline v. Commonwealth, 312 Ky. 645, 229 S.W.2d 435; Sparks v. Commonwealth, Ky., 256 S.W.2d 382. The other evidence added to the possession evidence fully justified the submission of the case to the jury.

On direct and cross-examination appellant readily admitted a prior police record of arrests and a felony criminal record. Appellant now complains that the cross-examination in this area elicited “inflammatory and prejudicial evidence.’"" There is no merit in this complaint because appellant’s counsel “opened the door” on direct examination concerning the arrests. The felony testimony was proper, and the trial court properly controlled the testimony and admonished the jury with respect thereto. Hayton v. Commonwealth, Ky., 332 S.W.2d 537; Jones v. Commonwealth, Ky., 333 S.W.2d 272. The failure to define the word “credibility” used in the admonition is not considered prejudicial in view of its common usage and general understanding. Nichols v. Commonwealth, Ky., 283 S.W.2d 184.

A review of the record and appellant’s complaints justifies the conclusion that appellant received a fair trial.

Judgment affirmed.


author: HUNTER, Judge.

text:
    Donald Dean JACOBS, Appellant, v. BOB ELDRIDGE CONSTRUCTION CO., Inc., and the Travelers Insurance Company, Respondents.
    No. 24141.
    Kansas City Court of Appeals. Missouri.
    June 7, 1965.
    Motion for Rehearing or Transfer to Supreme Court Denied July 15, 1965.
    Application to Transfer Denied Sept. 13, 1965.

      James L. Muller, Kansas City, for appellant.
    Jack B. Robertson, Rogers, Field & Gentry, Kansas City, for respondents.
   HUNTER, Judge.

This, case presents a claim by Donald Dean Jacobs for Workmen’s Compensation benefits for injuries arising out of and in the course of his employment alleged to have resulted from an accidental injury on February 22, 1962, caused by slipping and falling upon stepping down onto the track of a crane he was operating. The injury claimed is a herniated intervertebral disc. Jacobs’ claim is for temporary total disability through July 19, 1962, for incur "ed medical expenses of $40.00 and for further medical attention of an undetermined value. His average weekly wage is in excess of $71.25 so that the compensation rate is the maximum of $47.50 per week for temporary total disability. His claim for compensation was filed May 19, 1962, together with a request for special order for medical treatment.

The employer, Bob Eldridge Construction Company, and the insurer, the Travelers Insurance Company denied that claimant sustained an injury by accident arising out of and in the course and scope of his employment and that any disability claimant may have is the'result of the alleged accident.

After a hearing, the award of the referee was, “I find and believe from all the credible evidence that the employee, Donald Dean Jacobs, failed to prove that he sustained an accident arising out of his employment as alleged and as required under Section 287-020, Par. 2, RSMo 1959, and amendments thereto. Compensation therefore must be, and the same is, hereby denied.” Upon review, the Industrial Commission of Missouri adopted the referee’s findings of fact, rulings, conclusions of law and award of no compensation. Upon appeal, the Circuit Court of Johnson County affirmed the Industrial Commission’s Final Award Denying Compensation. This appeal followed.

Appellant’s contention on this appeal is that the circuit court erred in affirming the final award denying compensation because the award is not supported by competent and substantial evidence upon the whole record and is clearly contrary to the overwhelming weight of the evidence. Ancil-larily, appellant also charges the commission erred in denying employee’s request for additional findings of fact.

In order to review the contentions of error it is necessary at the outset to establish the exact basis of the Industrial Commission’s award. Section 287.020(2), RSMo 1959, V.A.M.S., provides, “The word ‘accident’ as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.” The statute is to be liberally construed to effectuate its purpose of compensation to employees, and accordingly, the words “at the time” are to be given a reasonably liberal and sensible construction. Smith v. American Car & Foundry Division, A. C. F. Industries, Inc., Mo.App., 368 S.W.2d 515. Since the context of the award does not clearly indicate a different meaning we conclude the referee’s finding which the commission adopted was a finding that claimant did not slip and fall while working on the job on February 22, 1962, producing an injury. Such a finding necessarily includes two items, namely, (1) a slip and fall, (2) producing an injury. This is in accord with the referee’s summation of his understanding of the issues at the commencement of the hearing in the presence of both counsel.

In a Workmen’s Compensation case, the duty of the reviewing court is to determine whether the award of the Industrial Commission is supported by competent and substantial evidence on the whole record, but it cannot substitute its own judgment on the evidence for that of the Commission. V.A.M.S., Const, of Missouri, Article V, Sec. 22. Nevertheless, the reviewing court is empowered to decide whether the Industrial Commission could have reasonably made its findings and reached its results on a consideration of all the evidence before it and should modify, reverse, remand or set aside a decision of the Industrial Commission if it is clearly contrary to the overwhelming weight of the evidence. Corp v. Joplin Cement Company, Mo.Sup., 337 S.W.2d 252; Section 287.490, RSMo 1959, V.A.M.S.

We proceed to examine the record as it appertains to item one — Claimant’s allegation that while on the job on February 22, 1962, he slipped and fell upon stepping down onto the track of a crane. The only direct testimony that he did so fall is his own statement to that effect. Claimant’s counsel advised the referee near the commencement of the hearing that one of the issues was “his (claimant’s) credibility”.

Claimant testified that on February 22, 1962, between 10 and 10:30 a. m. while on his job with the Bob Eldridge Construction Company the crane he was to operate to dig ditches wouldn’t start. “ * * * I noticed that the throttle was not open so it would get fuel, so I climbed down off the counter-balance and went inside the crane and cut the throttle, then I stepped out on the track and as I started to step out on the ground my feet went out from under me, and I fell on my tail. * * * ” “Q. What did you land on? A. On my rear end, my tail bone and I lit on the track. * * * ” “My feet were in the air and I fell back and I grabbed the track to keep from falling on the ground. * * * Q. What did you do? A. I sat up and looked around and I felt kind of funny falling down like that and I just got up and looked around to see who was looking at me. Q. Were there any other employees there? A. There were quite a few around there, yes. Q. Were they employees from the company? A. Yes, sir. Q. Do you have any idea how many? A. Seven to ten. Q. Was there anybody near you? A. Yes, on the other side of the crane on the northeast corner. Q. Did you observe anybody there when you got up that was looking in your direction? A. Yes, sir. Q. What did you observe? A. There was a fellow looking at me and laughing. Q. You don’t know for sure whether he saw it or not ? A. No, but he was looking that direction and laughing. (Eight months later his attorney located the employee who had no memory of witnessing any such incident.) Q. What did you do after you got up ? A. I went down on the ground and started working on the crane again. Q. Did you feel any effects immediately? A. Just a hurting in my tail bone where I fell. Q. What did you do from then on as far as working was concerned ? A. I went ahead and tried to start the crane. Q. How long a time did you try to start the crane? A. Till four-thirty.”

Claimant that day did not say anything to anybody about having fallen although his job superintendent Jim Buck came around later that morning. Claimant rode home from work (some 45 miles taking about one hour) with Jim Buck and several fellow employees that evening in Buck’s truck but did not mention any fall or accident to any of them. According to claimant, Buck “blew his stack” when claimant told him he had not gotten much done that day because the crane needed a new fuel pump costing $125.00. “He kept on aggravating me and I told him he could get somebody else and I quit. * * * Q. During this whole ride you never once mentioned to the superintendent that you had this accidental injury? A. No, sir, I never thought no more of it. Q. But your back was stiff when you got out ? A. Yes, but there were three of us in the cab and we were all jammed together. Q. Even though your back was stiff you didn’t say anything about it? A. No, sir. Q. The only thing you discussed was the work you had done that day or hadn’t done? A. He tried to talk me into coming back to work. I had quit and he apologized and tried to get me to come back to work and I almost promised him I would come back Monday, we weren’t going to work Friday. Q. But you didn’t go back to work? A. No, because he called me up and laid me off the next day (Friday, because of weather conditions).” Claimant did not tell Buck on the occasion of that call anything at all about his claimed accident.

When claimant got out of Jim Buck’s truck he felt a little stiff but “did not realize” he was hurt. When claimant got home he was experiencing stiffness. According to his wife, he was unusually stiff and couldn’t take his boots off. She had to help him get his work trousers off. When he got up off the divan he couldn’t straighten up. She stated that he told her he had had a fall that day. The next morning (Friday) she had to roll him out of bed and when he went to the bathroom she had to help him off of the stool. When he sat down he couldn’t get up, she stated. Nor could he do so Saturday or Sunday. It wasn’t so much his back, it was his leg and hip that kept getting worse. He called his attorney, “I believe it was Monday”.

According to claimant his reason for not first calling a doctor, although he knew several well, was that he had a pending lawsuit against a Mr. Johnston and thought it might have some bearing on this other case. At his attorney’s suggestion that he report his accident to the company he called Jim Buck (date and time unstated) to report it but Buck’s reaction to the report was not satisfactory to claimant. At the suggestion of his attorney, on March 5, 1962 he telephoned Kay Adams, an employee in the company’s office and reported his injury. She wrote down his report of accident and later filed it with the Industrial Commission.

The report of injury dated March 5, 1962, and signed by Miss Adams on behalf of employer was introduced in evidence and stated in part, “ * * * Describe in full how injury occurred: (alleges) Mr. Jacobs went to open throttle on motor, stepped on the track, hit a slick spot and fell down, hurting his back; 25. Has employee returned to work? No (Mr. Jacobs was laid off due to weather conditions, foreman did not know of accident); 30. Describe injury: Unknown, as Mr. Jacobs did not report this injury until later, he is to see his Dr. and have the Dr. send us a report.” Miss Adams told him to see his own doctor, Dr. Wilkinson. On being contacted Dr. Wilkinson told claimant if he wanted to come down to his office and sit around he could. This was not satisfactory to claimant, and he telephoned his attorney to find out who would be a good man to go and see. His attorney recommended Dr. Feierabend. On March 8 he went to see Dr. Feierabend who examined but did not treat him. Claimant’s first treatment following this occurrence was in May or June, 1962, by Dr. McCall, a chiropractor. The only other treatment he had was in July, 1962, in the Veterans Hospital.

As to item two — whether claimant was injured as a result of his claimed slip and fall the evidence is both voluminous and complicated by claimant’s previous history of back trouble. From birth claimant did not have a “normal” back. He has a congenital back condition in that he has a six lumbar type of vertebra rather than a five type. It is a transitional type of vertebra, partly lumbar and partly sacral. On the left side there is a very large transverse process shaped more like the sacrum and it forms a false joint between the ilium and the sacrum on the left side. These congenital conditions “contribute to a back that is more easily injured than a normal back.”

Claimant testified that while in the Army (from December 17, 1945, to January 17, 1946) he was hit in the back with an M-l rifle, was hospitalized six or nine days; that his legs were numb, paralyzed; that he was given a CDD military discharge and obtained a ten percent disability rating in connection with his back. He had that rating for one year.

He was asked: “Q. They removed this disability rating one year afterward? A. Yes. Q. Did you have any trouble after that with your back? A. Yes, in 1958.” On September 10, 1946, (within that one year period) claimant wrote a letter to President Truman stating he had been to Dr. Nigro’s (his physician) office and was told his back was in pretty bad shape and that he needed medical attention and had to wear a brace. His letter told President Truman that although he was working at that time he couldn’t hold a job because his back was hurting so bad, and was afraid he’d have to quit.

In 1949 Claimant made application for reinstatement of the disability benefits for the claimed reason he had been refused a job at General Motors and at Fisher Body because of the (CDD) discharge and he “either wanted them to give me some medical or take it off so I could get a decent job”. In 1949 he went to work full time for Centroplis Transfer and worked there regularly fifty-two weeks a year as an oiler on a crane until 1955. He testified he had no trouble with his back while working there.

On February 1, 1955, while working for Bill Goddard Chevrolet claimant had an automobile collision with E. F. Johnston and three weeks later was hospitalized at Menorah Hospital under the care of the company’s physicians Dr. Overesch and Dr. Zuber. He remained in the hospital from February 25, 1955, to March 19, 1955. He filed a Workmen’s Compensation claim against Travelers Insurance Company, the insurer herein for a whiplash neck and shoulder injury. The entire hospitalization was for treatment of injuries received in the February 1, 1955 accident and did not involve a back injury.

Claimant continued under the care of Dr. Overesch who in December 1955 referred him to Dr. Revis C. Lewis. Dr. Lewis had claimant in Research Hospital from February 18 to March 3, 1956, during which time there were no complaints and no indication or mention in the hospital records and x-rays of any injury to the low back. Dr. Lewis after an examination of “extremities and spine” noted, “Lower back negative.” This entire hospitalization was in connection with the February 1, 1955 accident.

On February 14, 1958, claimant was in another automobile accident (rear end collision), suffering a neck injury for which Dr. Overesch treated him. The Workmen’s Compensation claim resulting from the February 14, 1958 accident was settled January 6, 1959.

On October 10, 1958, claimant was driving an ambulance for Kansas City Ambulance Company and was involved in a collision. “My back hurt and I had hot spots around my ankle.” He was hospitalized in St. Margaret’s Hospital in Kansas City, Kansas, from October 10, to October 16, 1958, for this, his second back injury. In connection with that accident he had a Workmen’s Compensation claim in Kansas which was settled on March 2, 1959, on a rating of 25% permanent partial disability for $1,290.00. He also had a third party action against the driver of the other vehicle and in connection therewith was examined by Dr. Philip C. Nohe, an orthopedic surgeon, on March 1,1960. Some pertinent extracts from Dr. Nohe’s report, dated March 1, 1960, are: “Chief complaint: Injured lower back. * * * He believes he twisted his lower back at the time of impact, and had immediate pain in his lower back. * * He was hospitalized for two weeks under Dr. Nothnagel’s care, received therapy treatments to his lower back and was on hedboards. He was much improved upon ■discharge from the hospital, and wearing a low back support. Since injury he has continued to have complaints about his back. With sitting or lying down he is fairly ■comfortable, but he has pain with getting in and out of a chair or in and out of bed. With strenuous physical activity he has pain radiation into both lower extremities, accompanied by numbness and tingling about the ankles, more marked on the left. He notes some stiffness about his lower back. He was off work approximately one and one-half months following injury. Since that time, due to continued complaints about his back he has had about “twenty different jobs”. He has continued his care under Dr. Nothnagel and still wears his back support. He has increased aching and pain about his lower back with standing for a long period of time. His aching and pain are increased with any physical activity such as lifting, bending, stooping, and certain twisting motions. He has increased pain with coughing and sneezing, in his lower back. Although his pain and aching are relieved by rest, he still has complaints at night, and states that he is usually awakened two to three times during the night because of pain. He usually takes an “Emperin # 4” before going to bed. He has been taking muscle relaxant tablets recently, but no other active treatment. Ele has used heat, but obtains only temporary relief. The leg pain and peculiar sensation in his legs will come on with long standing, bending, lifting, and twisting. Past History: “He has had no other serious illnesses, injuries or operations. He states he had a ‘whiplash injury’ to his neck in 1955, from which he recovered satisfactorily. He denies previous injury to or difficulty with his lower back. * * * The patient at the time seen is wearing a short chair back type brace. * * * Flexion, extension, lateral bending, and rotation-extension are accomplished within normal limits and with no loss of motion, but with complaints of pain referred to the lower back on flexion, extension, and left lateral bending. He complains of pain when the area overlying the lumbo-sacral and right sacroiliac areas are palpated or percussed. Straight leg raising with the patient in a sitting position causes low back pain at 90 degrees. * * * With the patient prone he complains of tenderness when the area over the interspinous ligament of L 4 — 5, and L 5-T 1 is palpated. He also complains of tenderness when the ligaments over both sacroiliac joints are palpated. There are no muscle spasms about the patient’s back. The sciatic and trochanteric areas are negative to examination.”

Claimant testified that by May of 1960 he had recovered and had gone to work on the construction of a missile base at Con;land, Nebraska. He worked seven days a week averaging some 60 hours a week for more than seven months up to the first part of January, 1961. During 1961 he worked on numerous jobs such as running a rough riding Northwest shovel handling rock with a lot of vibration and jarring; loading a crane for shipment which involved a lot of bending, getting in under and twisting, pulling, prying and lifting in taking the tracks off and the boom out, and handling heavy cribbing; operating a DW 10 scraper with a lot of bouncing and rough riding; and operating a rough’ bouncing 160 scraper.

In December, 1961, he started working for his present employer operating a crane. When they were getting ready to load the crane for shipment to Knobnoster, it threw a track. Claimant had to get down and roll and pull and jerk to get it back on. The first day at Knobnoster it threw a track and he had to go through the same thing again. He testified he had no trouble with his back in doing any of this kind of work until after the accident of February 22, 1962.

We refer to claimant’s medical and hospital records after February 22, 1962. A radiographic report dated November 26, 1962, made by Dr. Bevacqua at Dr. Osborne’s request stated: “Include lumbo-sacral joint film. Lo back pain — left leg radiation. Film No. 42872 — Date of report: 7-9-62 Radiographic report: 7/6/62 Lumbar spine shows a normal lordotic cure. The vertebral bodies, intervertebral spaces, interarticular joints and sacroiliac joints are within normal limits. Negative lumbar spine.”

A Veterans Hospital report by Dr. Webb, dated July 16, 1962, stated: “PI: This 35 year old patient was admitted to the hospital 7/5/62. Patient was admitted with chief complaint of low back pain. Patient apparently has had intermittent difficulty with low back pain since 1946. Since that time patient has had intermittent episodes of low back pain with some history of left leg pain. The present episode began about two days prior to admission. PE: Examination of the back: General: Patient entered the examining room in a wheelchair. He can, however walk with a somewhat careful gait. There is no list present. There is no scoliosis present. He stands with a flat back and prominent obese abdomen. There is considerable paraverte-bral muscle tightness present in lower thoracic and lumbar areas. There are no areas of acute tenderness noted. He lies down and returns to the sitting position with apparent difficulty. Motions: Motion in forward flexion is quite limited, in that he can only move a few degrees in forward flexion. Fingertips come with 25" of floor. Lateral bending is not particularly limited. Extension is moderately limited. Tests & Signs: Straight-leg raising: 40 degrees bilateral with marked hamstring tightness. Lasegue’s sign: Negative. Tests & Signs: Gaenslen’s sign: Negative. Reflexes: Present and equal. Sensation: No definite changes in sensation noted. Measurements : The leg lengths are equal. There is no atrophy present. DX: Low back strain. RK: P. T. Moist heat packs lumbar area and hamstrings 30 minutes twice daily.”

Claimant’s attorney objected to the admission in evidence of that portion of the above exhibit designated “PI” as “obviously” not being the statement of claimant to the hospital but is the consulting doctor’s own review and interpretation of other hospital records in evidence. There was no objection made as to any lack of proper foundation being laid for the admission of the exhibit. While the exhibit may have been subject to other objections if they had been made, there is nothing on the face of the exhibit to show that these statements were not a summary of part of the history of his back claimant gave to the hospital attendants.

On November 14, 1962, Dr. R. C. Lewis examined claimant. Claimant gave Dr. Lewis an accident history consistent with his present testimony. The report concluded : “The patient’s signs and symptoms are consistent with a lumbar disc protrusion. At this time we feel his permanent partial disability is in the neighborhood of twenty-five per cent. We would anticipate that there is at least a fifty percent chance of this patient requiring surgery at some future date.” The Radiological Report read: “A lateral negative made to show the lower two thirds of the thoracic spine and films of the lumbar spine in the anterior posterior and lateral projections reveal a normal alignment of these portions of the vertebral column. The intervertebral spaces in the upper lumbar area are well maintained. The disc between the fourth and fifth lumbar vertebrae is very definitely narrowed and also between the fifth lumbar vertebra and the upper sacral segment. There are rudimentary ribs on the 12th dorsal vertebra. The last lumbar vertebra has a bifid type of transverse process that is sacralized on the left side with a free type of transverse process on the right.”

Dr. Feierabend testified he examined claimant on March 8, 1962. Claimant had a congenital defect in his back earlier described. He found a thin disc at the L-five S-one level and a rudimentary disc between S-one and S-two. This rudimentary disc is congenital. His conclusion was that “This man has an architectural instability in the lumbo-sacral mechanism. * * * Recurring episodes of low back pain is suggestive of an intervertebral disc, a protruded disc. He has classical, clinical findings of a protruded intervertebral disc, including a depressed ankle jerk.” He was asked a hypothetical question based on claimant’s version of the evidence and stated in answer thereto: “I think this man obviously has had trouble with his back all of his life by virtue of the congenital defect and he had an episode of backache before, but apparently, based on the hypothetical question, he did a good deal of rather vigorous work at the missile base and has not been able to do that according to the hypothetical question since the accident of February 22, 1962. Nobody can say with any degree of accuracy, but based on the hypothesis I think it is reasonable to assume that the major cause of his difficulty occurred as a result of the incident of February 22, 1962.” (Emphasis ours.) He also gave his view based on a hypothetical question that claimant needed an operation on his back.

On cross-examination Dr. Feierabend stated Dr. Nohe’s report indicated fiat on March 1, 1960, claimant had a lumbo-sacral sprain with symptoms “some of them are consistent with a herniated disc, however, there is not enough to diagnose it as a herniated disc.”

At the outset we are confronted with ’die question of whether on the record before it the Industrial Commission could find that claimant failed to prove that while on the job on February 22, 1962, he did not slip and fall as he testified. Claimant suggests respondents are endeavoring to justify the award on the basis that the commission may decide a claim solely upon a finding of lack of credibility of uncon-tradicted and unimpeached testimony offered in support of the claim. However, respondents in their brief have simply joined issue with claimant on the question of whether there is competent and substantial evidence on the whole record to support the award.

We do not have before us a case in which the Industrial Commission denied relief solely on the basis of lack of credibility of claimant’s testimony that he slipped and fell. Nor do we undertake to set out what the rule is in such a situation. The award before us states it is a “finding from all the credible evidence.” It is not merely a ruling that claimant did not make out a prima facie case. It is a finding of fact and award based upon a consideration of all the evidence and not a finding based solely upon a lack of belief of claimant and his witnesses. See, Scott v. Wheelock Bros., (En Banc), 357 Mo. 480, 209 S.W.2d 149.

Claimant contends the Report of Injury filed by his employer describing his slip and fall resulting in injury to his back are admissions against interest and corroborate his claim, citing Tralle v. Chevrolet Motor Co., 230 Mo.App. 535, 92 S.W.2d 966. In that case the rule was stated that the Report of Accident when filed (as required by statute, Section 287.380, RSMo, 1959, V.A.M.S.) becomes a record in the case, which record is analogous to a pleading and is admissible and binding in the same way as a pleading as to admissions therein against interest, and is admissible in evidence in the same manner as a pleading. This rule has been even more succinctly stated in 2 Larson, Workmen’s Compensation Law, Section 79.41, page 297: “The employer’s report of the accident, which in most states he is required to file with the commission, is competent as an admission against interest. This is so even if the report itself is based upon hearsay, for by incorporating it in his report, the employer transfers it into an admission. * * Since the employer and insurer are identified in interest, the admissions of one are binding on the other.”

The report of injury was first prepared by Kay Adams, as earlier described. Before it was filed by the employer its agent, J. R. Hachey, an employee of Travelers, who was in charge of this claim and who prepared and filed employer’s “Answer” inserted the word “alleges” in items 7 and 23, which are the items concerning claimant’s slip, fall and injury. Thus, the Industrial Commission had before it a report of injury based on claimant’s statement of what occurred, which statement the employer and insurer did not adopt in its filed “pleading” until after it first noted that the report of what occurred was but an allegation. The resultant probative value, if any, as an admission against interest was for the determination of the Industrial Commission, to be considered along with the other evidence.

As earlier indicated, our duty is to review the whole record, including the legitimate inferences to be drawn therefrom, in the light most favorable to the award of the commission, and then determine whether the commission’s findings are supported by competent and substantial evidence, and if so, determine if they are contrary to the overwhelming weight of the evidence. Damore v. Encyclopedia Americana, Mo.Sup., 290 S.W.2d 105. We must remain mindful that the claimant carries the burden of proof.

Although a claimant may testify he had an accident on the job and no one testified directly that he did not have one, it is usually true that there is other evidence, albeit circumstantial, and reasonable and permissible inferences therefrom, that also have probative value, and are pertinent to the issue. Sometimes this other evidence or reasonable inferences therefrom are contrary to claimant’s testimony concerning one or more essential facts he must establish to receive compensation benefits. In such a situation it is the Industrial Commission’s function to weigh all the evidence, and it may refuse to follow or believe claimant’s testimony in view of the other evidence, or reasonable inferences from the other evidence, touching the issue. Illustrative is the en banc decision of Scott v. Wheelock Bros., supra, in which after a careful review of the former decisions on the subject, the court noted that while claimant testified she was a dependent of deceased and no one else testified she was not, there was circumstantial evidence from which a contrary reasonable inference could be drawn. The Industrial Commission found claimant was not a dependent and its final award denying compensation was affirmed.

Similarly, in the most recent supreme court decision on the subject, Snowbarger v. M. F. A. Central Co-operative, 349 S.W.2d 224, Judge Hollingsworth speaking for the court en banc stated that the commission cannot be required to accept as true the testimony of claimant’s witness if the commission, in exercising its powers and duty to determine the facts, does not believe the testimony of that witness. In affirming the commission’s award of no compensation the opinion stressed reasonable inferences from the evidence, which inferences were supportive of the award, and held there was competent and substantial evidence on the whole record to support the award. To the same effect is the recent case of Ginter v. Freund Baking Company, Mo.App., 388 S.W.2d 505.

Viewing the evidence in the light most favorable to the award of the commission what evidence, or reasonable inferences from evidence, are there which are supportive of the finding that claimant did not slip and fall as he testified?

According to claimant’s own testimony there were seven to ten employees nearby when he allegedly fell yet none of them saw him fall. One employee was looking toward him and laughing yet when later contacted he remembered no incident of such a fall. Nor did claimant tell any of these employees that he had fallen although he presumably worked nearby them the rest of the day. Claimant did not tell his job superintendent he had fallen although the superintendent came around later that morning. Nor did claimant report the fall to anyone else. When he rode some 45 miles home that evening spending one hour in the pickup truck with his job superintendent and two other employees he did not mention his fall or his “stiffness” to any of them. The next morning (Friday) although claimant testified he couldn’t get out of bed without help and had to be rolled out of bed and helped off the stool, and was experiencing real pain, when his job superintendent telephoned him to tell him not to report to work the following Monday because of inclement weather, he did not tell his job superintendent he had a fall or was in any way incapacitated or in pain. He made no mention of the incident at all. Although, according to him, he was confined to bed Friday, Saturday, Sunday and Monday, he did not notify his company or call a doctor. It was not until some time after he called his lawyer, probably on Monday, that he tried several times to contact his company. When, that contact (with Buck) was not satisfactory, he did not report his accident to the company until March 5th, some eleven days after his accident. This evidence is sufficiently inconsistent with what one would normally do under such circumstances that we cannot rule as a matter of law the Industrial Commission could not draw from it an inference that he did not on February 22, at or about the time stated have the slip and fall he now claims. This is especially so in view of his previous experience with Workmen’s Compensation claims. Claimant makes no contention he didn’t know the value of timely reporting accidents to his employer. The Industrial Commission did not have to accept his explanations for his conduct that was inconsistent with his claimed slip and fall.

In addition to the above evidence the Industrial Commission also had before it evidence that claimant had been inconsistent in statements he had made to others concerning how, when and where his back first became injured in 1945, the extent of such injury, and his purported recovery, from that and other back injuries previous to his present alleged back injury. These inconsistent statements concerning the history of the health of his back reflect upon his general credibility and accuracy in reporting events, and the commission is entitled to consider these inconsistencies in its evaluation of claimant’s testimony. While claimant now contends these inconsistencies are not “any impeachment” of his testimony of his fall and resultant injury because they are not an intentional false swearing to a material fact, we note his counsel advised the referee at the outset of the hearing that claimant’s credibility was an issue, and we believe the commission could consider earlier inconsistent statements concerning his various back injuries along with the other evidence in evaluating his testimony.

In view of our ruling that there was competent and substantial evidence to support the Industrial Commission’s finding in effect that there was no slip and fall as alleged, there is no need to review the lengthy and conflicting medical testimony concerning the issue of whether he had a herniated intervertebral disc produced by a fall on February 22, 1962. We note in passing there was evidence that prior to February 22, 1962, he had twice severely injured his back and had resulting symptoms and disability at least somewhat comparable (see Dr. Nohe’s report of March 1, 1960) to those existing after February 22, 1962, as evidenced in the Veterans Hospital records.

Claimant’s contention the commission erred in refusing his request for two additional findings of fact was denied on the ground it was not submitted prior to the entry of the Final Award. This is not a proper ground for the denial of such a request. See, Fisher v. City of Independence (Mo.Sup. En Banc), 370 S.W.2d 310, 316(4); Williams v. International Shoe Co., Mo.App., 213 S.W.2d 657, 660. If the findings of fact do not sufficiently reveal the basis of the decision and how the controlling issues have been decided sufficient additional findings of fact should be made even if requested after the entry of the award. However, in the instant case while the findings of fact could have been more detailed, we have been able with some difficulty to ascertain the basis of the decision and how the controlling issues were decided. We therefore hold there was no prejudicial error involved. See, Groce v. Pyle, Mo.App., 315 S.W.2d 482; Michler v. Krey Packing Company, En Banc, 363 Mo. 707, 253 S.W.2d 136.

With reference to claimant’s contention he should be reimbursed for the $40.00 expense of seeing “his” doctor at the direction of Kay Adams, who told him the company would pay that bill, we agree he is entitled to that reimbursement. Cf. Myers v. Cap Sheaf Bread Co., 354 Mo. 943, 192 S.W.2d 503.

We have carefully considered all the evidence in order to determine whether the final award of the Industrial Commission is clearly contrary to the overwhelming weight of the evidence, and have concluded that it is not, .except as to the mentioned $40.00 medical bill. The Final Award should be amended to grant claimant reimbursement of the $40.00 paid by him for medical services which respondents had authorized. In all other respects the Final Award of the Industrial Commission is without error and according to law.

To permit the above described amendment of the Final Award, the judgment of the circuit court is reversed and the cause is remanded to the circuit court with directions to remand to the Industrial Commission for further proceedings in accordance with this opinion.

All concur.