author: WILSON, Justice.

text:
    BITUMINOUS CASUALTY CORPORATION, Appellant, v. Albert JORDAN, Appellee.
    No. 3950.
    Court of Civil Appeals of Texas. Waco.
    Nov. 9, 1961.

      ■ L. W. Anderson, Dallas, for appellant. '
    Jimmy Morris, Dawson & Dawson, Cor-sicana, for appellee. -
   WILSON, Justice.

The workmen’s compensation carrier appeals from judgment for permanent partial incapacity rendered on a jury verdict. Appellant does not attack the findings as to incapacity. It says the jury findings as to wage and wage earning capacity differential and good cause for delay in filing claim are not supported by the evidence, and it complains of admission of evidence and refusal of a requested instruction.

On the good cause issues the jury found appellant’s adjuster represented to appellee “that he would take care of everything about his claim”, and appellee failed to sooner file his claim in reliance on the representatipn, which constituted good cause for such failure. Appellee, a minor, was injured on September 9, 1958. He was hospitalized nineteen days, after which appellant’s adjuster' balled on him, stating it would be necessary for certain' forms to be completed in' order that he receive compensation,' Claimant’s evidence was that the adjuster assisted in filling out the forms and -said “all things would; be taken care of by-ime”.'and “we’ll .t-réat you right.” .Ap-pellee testified-..he! ’believed- the adjhster “when he said that he would do everything necessary to process” his claim, and he believed everything necessary had been done because he immediately began receiving compensation, which continued for eleven weeks. The adjuster continued to negotiate with him for settlement, saying his claim “was more than verified.” He went to a plastic surgeon in Dallas at the adjuster’s request, -and the adjuster arranged for an operation, set for the Christmas holidays, 1959. Appellee received no further notice concerning the operation, although he went to the adjuster’s office during the holidays and made inquiry. He testified settlement negotiations continued, although he did not converse with the adjuster after September, 1959. Appellee thereafter entered college, reaching his majority in February, 1960.

Appellee’s father testified the adjuster told claimant he would “take care of all papers” so claimant could get his compensation and would “file all claims that was necessary with the Industrial Accident Board.” He testified he continued to negotiate with the adjuster with claimant’s knowledge until February or March, 1960, when an attorney was employed. The attorney ascertained no claim had been filed. On cross-examination, appellant elicited that the adjuster told the father, “I’ll take care of filing the claim with the Industrial Accident Board;” told him and the claimant he had filed it, and explained delay by saying, “they were waiting on” the board. He testified the adjuster visited him while claimant was in school, “trying to settle the claim”. The evidence shows the attorney filed the claim with reasonable promptness. The adjuster denied making any representation that he would file the claim, and testified he last talked to claimant in November, 1959, saying he was “trying to evaluate the claim” for settlement purposes. He discussed plastic surgery with claimant, “thinking in terms of being of what service we could to him, getting a claim adjustment at the same time, and we were needing something there, an estimated medical, hospital and loss of time”. The company selected the plastic surgeon.

We have reviewed the evidence and in our opinion the findings complained of concerning good cause are supported.

Error is assigned to admission of appellee’s testimony, offered for the limited purpose of showing the statement was made, that the plastic surgeon selected by appellant “prescribed plastic surgery”. Appellant objected to the answer as being hearsay. No reversible error is reflected for several reasons: Appellant made no motion to strike, the question having been answered before objection. Pressley v. Smith, Tex.Civ.App., 288 S.W.2d 893, 896 and authorities cited; 3 Tex.Jur. 2d Sec. 122, p. 392. We believe evidence that the statement was made by a surgeon of ap-' pellant’s selection was admissible to show a course of dealing on the issue of good cause, and claimant’s mental state. Appellant’s adjuster testified the plastic surgeon sent him a report suggesting plastic surgery. Admission of this evidence over objection is not assigned as error. Evidence was admitted without objection as to the adjuster’s failure to notify claimant concerning the planned operation, and failure of appellant to “go through with the operation”. The court, at appellant’s request, instructed the jury that the adjuster’s testimony as to discussions with claimant concerning plastic surgery was not to be considered on the question of whether claimant needed plastic surgery, but for the purpose of showing his dealings with claimant. Appellant’s counsel inquired of claimant’s father if he “wasn’t familiar with the fact” that the plastic surgeon “stated that it wasn’t necessary for him to have plastic surgery?” The point is overruled.

Complaint is made of admission of claimant’s testimony and the opinion of a medical witness that in his condition claim-, ant could not perform manual labor. As we understand it, appellant contends that notwithstanding appellee was injured while engaged in manual labor, he was being trained professionally as a musical director át the ■ time of trial, and evidence of inability to do manual labor was not admissible. The point is overruled. Texas Employers’ Ins. Ass’n v. Long, Tex.Civ. App., 180 S.W.2d 629, 632; 2 McCormick & Ray, Evidence (2d ed.), Sec. 1427; 45 Tex.Jur. 590.

Refusal to submit a requested definition of total incapacity is assigned. The request is embodied in appellant’s objections to the charge, and there is no showing these were acted on by the court as required by Rule 272; and there is no endorsement or other order as required by Rule 276, Texas Rules of Civil Procedure. The assignment does not show error. Ellis Drilling Co. v. McGuire, Tex.Civ.App., 321 S.W.2d 911, writ ref. n. r. e.; Abraham v. Prewitt Printing Co., Tex.Civ.App., 330 S.W.2d 254; McCorstin v. Mayfield, Tex.Civ.App., 274 S.W.2d 874; Cantrell v. Garrett, Tex.Civ.App., 342 S.W.2d 466; Gowan v. Reimers, Tex.Civ.App., 220 S.W.2d 331, writ ref. n. r. e.; Ramsey v. Polk County, Tex.Civ.App., 256 S.W.2d 425; Sunset Motor Lines v. Blasingame, Tex.Civ.App., 245 S.W.2d 288. The definition of total incapacity given in the court’s charge was adequate. Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000.

The jury found the difference between appellee’s stipulated average weekly wage of $60.00 and his average weekly wage earning capacity during partial incapacity to be $32.50. It is urged the finding is not supported by the evidence. After his injury, claimant entered college and obtained Sunday employment as a church musical director at a weekly salary of $27.50. This, and other evidence in the record, supports the verdict. Appellant’s other points have been considered and are overruled. ,

Affirmed.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    TEXAS LIQUOR CONTROL BOARD v. Charles TISHLIAS, d/b/a Gaslite Club of Dallas et al.
    No. 7134.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1961.
    Rehearing Denied Dec. 11, 1961.
    Will Wilson, Atty. Gen., Cecil Cam-mack, Jr., Asst. Atty. Gen., for appellant.
    Henry Klepak and Norman A. Zable, Dallas, for appellees.
   NORTHCUTT, Justice.

This is an alcoholic beverage forfeiture suit filed by the State of Texas by the Attorney General against Charles Tishlias, d/b/a, Gaslite Club of Dallas, et al., appel-lees, concerning alcoholic beverages seized by the agents of the Texas Liquor Control Board under the provision of Art. 666-42 (a), Vernon’s Texas Penal Code and sought to be forfeited under 42(b) of that article. The trial court heard the evidence without the intervention of a jury. The trial court held that the alcoholic beverages seized were not illicit beverages as defined in Sec. 3a (4) of Art. 666, Vernon’s Penal Code and ordered that the State be denied its request for forfeiture and ordered the seized beverages be returned to the defendant by the Texas Liquor Control Board. From that order the State of Texas perfected this appeal to the Court of Civil Appeals for the 5th Supreme Judicial District of Texas at Dallas, Texas, and was transferred to this court by order of the Supreme Court of Texas.

Appellant’s point of error is that the trial court erred in finding that the intoxicating beverages seized were not illicit beverages as that term is defined in the Texas Liquor Control Act:

The provisions of the Act (Art. 666-1 et seq., and Art. 667-1 et seq., Vernon’s Penal Code) applicable here are:

Art. 666-2 “This entire Act shall be deemed an exercise of the police power of the State for the protection of the welfare, health, peace, temperance, and safety of the people of the State, and all its provisions shall be liberally construed for the accomplishment of that purpose.”
Art. 666-3a. “(1) ‘Alcoholic Beverage’ shall mean alcohol and any beverage containing more than one-half of one per cent (½ of 1%) of alcohol by volume which is capable of use for beverage purposes, either alone or when diluted.”
Art. 666-3a(4). “‘Illicit Beverage’ shall mean and refer to any alcoholic beverage * * * bought, sold, * * * stored, possessed * * * in violation of this Act.”
Art. 666-4(a). “It shall be unlawful for any person to * * * sell, possess for the purpose of sale, * * * store, solicit orders for, take orders for * * * any liquor in any wet area without first having procured a permit of the class required for such privilege.”
Art. 666-3a(6). “‘Person’ shall mean and refer to any natural person or association of natural persons, trustee, receiver, partnership, corporation, organization, or the manager, agent, servant, or employee of any of them.”
Art. 667-3. “It shall be unlawful for any person to manufacture or brew beer for the purpose of sale, or to import into this State, or to distribute, or to sell any beer, or to possess any beer for the purpose of sale within this State without having first obtained appropriate license as herein provided, which license shall at all times be displayed in some conspicuous place within the licensed place of business.”
Art. 666-3. “(a) The term ‘open saloon’ as used in this Act, means any place where any alcoholic beverage whatever * * * is sold or offered for sale for beverage purposes by the drink * *
Art. 666-3 “(b) It shall be unlawful for any person, whether as principal, agent, or employee, to operate or assist in operating, or to be directly or indirectly interested in the operation of any open saloon in this state.”
Art. 666-42(a). “All illicit beverages as defined by this Act * * * may be seized * * * by an agent or employee of the Texas Liquor Control Board.”
Art. 666-42 (b). . “It shall be the duty of the Attorney General * * * when notified by the officer making the seizure, or by the Texas Liquor Control Board, that such seizure has been made, to institute a suit for forfeiture of such alcoholic beverages * * *. If upon the trial of such suit it is found that the alcoholic beverages are illicit * * * the court trying said cause shall render judgment forfeiting the beverages and property to the State of Texas * *

The alcoholic beverages here involved were seized when agents of the Liquor Control Board entered a place of business known as Gaslite Club of Dallas, Inc., located at 6135 Sherry Lane in Dallas, Texas, by authority of a valid search warrant. The State alleged in its petition that the defendant violated the Texas Liquor Control Act in that defendant stored, warehoused, and possessed said alcoholic beverages for the purpose of sale, said defendant not then and there being the holder of a valid permit or license duly issued by the Texas Liquor Control Board authorizing the storage, warehousing or sale of such alcoholic beverages and that the defendant then and there ran an open saloon contrary to the constitution and laws of the State of Texas.

On October 10, 1960, about 10:15 in the evening, Emmett P. McCracken, an employee of the Texas Liquor Control Board, went to the club rooms of the Gaslite Club of Dallas and signed an application for membership. As a part of this application appeared the following sentence: “Also enclosed find signed check for $10.00 which constitutes the writers deposit under the liquor pool system.” Immediately after paying the $10.00 McCracken went back to the club room and ordered a drink of whis-ky and coke and was served his first drink in 10 or 15 minutes after paying the $10.00, and for which he was charged $1.25. He signed for each serving and paid for the same through a Diner’s Club credit card, and later paid the Diner’s Club.

Without discussing this case further we are of the opinion that the facts of this case clearly show that the alcoholic beverages here in question are illicit beverages under the terms of the law and that the appellant’s points of error should be sustained.

We think the case of State of Texas v. Harris, Tex.Civ.App., 342 S.W.2d 177, 182, is directly in point where it holds such alcoholic beverages to be illicit beverages. In that case it is stated:

“Attorney General Gerald C. Mann rendered his opinion No. 0-1145 on August 26, 1939, to the Texas Liquor Control Board regarding operations of Houston Country Club and River Oaks Country Club in which he held:
“We do not think that there is any doubt but that the fact that the liquor is dispensed to members of these clubs by the drink, coupled with the further fact that such members are called upon to contribute money to the Revolving Fund, and that they do so contribute, so that liquor may be kept on hand, constitutes sales of liquor by the drink on the part of those who deliver the liquor to the various members, whoever they may be, and that both clubs in question are being operated as open saloons.”

That opinion was held correct by Attorney General Price Daniel in his letter to the Administrator of Texas Liquor Control Board — (R-1221). General Daniel in his opinion No. V-203, dated May 21, 1947 relative to sales of liquor in a private club said:

“If an officer of a private club purchases liquor from funds furnished by individual members of the club, such liquor becomes the common property of the club. When a drink is delivered by the steward to a member, and is paid for in the manner provided by the club, it constitutes a 'sale’ by the club to the individual member. (Krnavek v. State, (38 Tex.Cr.R. 44), 41 S.W. 612; Feige v. State, (49 Tex.Cr.R.513), 95 S.W. 506; Adams v. State, (66 Tex.Cr.R. 220), 145 S.W. 940.) Such a •sale is in direct violation of the provisions of Article 666-3, Paragraph (a), Vernon’s Penal Code of Texas. This statutory prohibition applies equally to ‘wet’ areas and ‘dry’ areas. (Shelton v. State, (Tex.Cr.R. 126), 138 S.W.2d 1078.)”
“(4) The Legislature has met several times and amended the Texas Liquor Control Act in some particulars since Backues v. Woods, supra, and the Attorneys General’s Opinion referred to, but has made no change in the sections of the Act applicable here. The Board has acted on this decision and said opinions as that administrative agency’s construction of the' Act. Such action and construction is entitled to great weight here in view of the legislature’s tacit approval thereof by inaction for more than eleven years. 39 Tex.Jur. p. 235, ‘Statutes’ Par. 126.”

We sustain appellant’s point of error and hold that the alcoholic beverages involved here are illicit beverages and are forfeited to the State of Texas to be disposed of as provided by law. Judgment of the trial court is reversed and rendered accordingly-


text:
    John P. ROGGE et al., Appellants, v. GULF OIL CORPORATION et al., Appellees.
    No. 3907.
    Court of Civil Appeals of Texas. Waco.
    Oct. 26, 1961.
    Rehearing Denied Dec. 7, 1961.

      Will Wilson, Atty. Gen., J. Milton Richardson, Asst. Atty. Gen., James M. Neff, Orange, for appellant.
    Fred A. Lange, Houston, Hustmyre & Harris, Orange, for appellee.
    Martin Dies, Sr., Lufkin, for Margaret Stephenson and Estate of K. W. Stephenson.
   WILSON, Justice.

This vacancy suit is basically a boundary controversy brought as a trespass to try title action by Rogge, lessee of the State. The State as lessor intervened. They will be referred to herein as plaintiffs. Their suit is against Gulf and numerous others, who will be collectively referred to as defendants, to recover title to and possession of Rogge’s interest under an oil and gas lease covering lands in Orange County. Judgment was rendered on a jury verdict for plaintiffs as to 28 acres involved, and against them as to other lands sued for in so far as parties before us are affected. Gulf and other non-defaulting and non-disclaiming defendants appeal from the judgment as to the 28 acres; plaintiffs appeal from the judgment denying them recovery as to the balance of the land in controversy.

We will first dispose of the appeal by Gulf and other defendants. They present points attacking the jury findings on which the judgment relating to the 28 acres was rendered, complaining of submission of issues relating thereto, and otherwise challenging that portion of the judgment.

These defendants filed and presented to the trial court a motion for judgment asserting unequivocally that upon the verdict they were entitled to judgment for all land sued for except the 28 acres, which “should be awarded to John P. Rogge, plaintiff, and the State of Texas, intervenor;” and praying that judgment be rendered awarding the 28 acres to the latter. Plaintiffs likewise moved for judgment as to the 28 acres. The judgment recited the jury findings, the presentation and consideration of the motions, and awarded the 28 acres to plaintiffs. Thereafter, making no motion for judgment notwithstanding the verdict or to disregard findings, defendants presented a motion for new trial which they refer to in their brief as- a motion that these answers “be set aside as not being supported by the evidence”, and praying that the judgment as to the 28 acres be also set aside. The motion was overruled.

Having induced the court to render judgment on the verdict by affirmatively praying that the 28 acres be awarded to plaintiffs, defendants may not now complain of the action which they invited, requested and urged. Smith v. Chipley, 118 Tex. 415, 16 S.W.2d 269, 276; Texas Portland Cement & Lime Co. v. Lee, 98 Tex. 236, 82 S.W. 1025; American Surety Co. v. Whitehead, Tex.Com.App., 45 S.W.2d 958, 961; Whitehead v. Reiger, Tex.Com.App., 6 S.W.2d 745, 747; Fidelity & Deposit Co. of Maryland v. Risien, Tex.Civ.App., 284 S.W. 977, 980; Dallas Ry. & Terminal Co. v. Straughan, Tex.Civ.App., 254 S.W.2d 882, 885; Barton v. Wood, Tex.Civ.App., 162 S.W.2d 147, 148, writ ref. w. m.; Jones Fine Bread Co. v. Cook, Tex.Civ.App., 154 S.W.2d 889, 890; Braden v. State, Tex.Civ.App., 108 SW.2d 314, 317, syl. 3; National Bank v. Kilgore, 17 Tex.Civ.App. 462, 43 S.W. 565, 566; 4 Tex.Jur.2d Secs. 765, 773.

The facts relating to plaintiffs’ appeal are extremely complex. They may be more clearly understood by a reading of Caswell v. Faulk, Tex.Civ.App., 97 S.W.2d 341, writ .ref., and study of the plat therein, relating to the Beaumont and surrounding surveys; and State v. Gulf Oil Corp., Tex. Civ.App., 264 S.W.2d 743, writ ref. n. r. e., relating to the Allen survey.

Jury findings, which plaintiffs say are without support in the evidence, were that (1) Pinkston did make a survey of Beaumont on the ground; (4) that he did not locate the upper southeast corner of the Beaumont at a point S 9 W 1320 varas from its most northerly corner; (5) that he did not complete his survey by following his field note courses and distances from the last mentioned point, and (9) that he placed the upper southeast corner of the Beaumont at the northeast corner of the James Smith (Nancy Block) survey. Plaintiffs say that the actual boundaries of the Beaumont Survey presented a question of law only under which course and distance calls in Pinkston’s field notes should control, and calls for adjoinder with the Block (James Smith) and Big 3B surveys rejected.

Plaintiffs’ entire appeal, we think, is determined by the doctrine of stare decisis. All material contentions here presented by them were concluded by the decision in Caswell v. Faulk, Tex.Civ.App.1936, 97 S.W.2d 341, writ refused. Plaintiffs there were predecessors in title of defendant— appellees here. The present record contains the judgment in that case, field notes in which fixed the boundaries and location of the Jacob Beaumont survey. In that case plaintiffs were the owners of the Beaumont, and defendants were owners of the Big 3B. Plaintiffs sought to recover title to the Beaumont survey, and the location and boundaries of that survey are what that judgment determined. Although the format in which the issues on appeal were cast (under agreement that boundaries of plaintiffs’ Beaumont and defendants’ Big 3B surveys coincided) permitted disposition on the basis of the Big 3B north boundary, the decision necessarily determined the true location on the ground of the Beaumont south line. That, indeed, was the .real issue involved — made so by the petition of plaintiffs there, who were the owners of the Beaumont survey. Fixation of the Big 3B north boundary was merely the process and method by which the issue of the Beaumont south line was determined in Caswell v. Faulk. The field notes fixing the boundaries of the Beaumont surveys in that judgment can only be comprehensively related to plaintiffs’ claims and the trial court’s judgment here by platting the .respective field notes in the two judgments, which we have done on the appended exhibits.

From them it is clear that Caswell v. Faulk determined the boundaries of the Beaumont survey; that the northwest corner of the Big 3B coincides with the southwest corner of Beaumont; that the northeast corner of Big 3B is the same as the lower southeast corner of Beaumont; that each of the northernmost corners of the Block survey are coincident with the corresponding corners of Beaumont, and they adjoin; that the southernmost east line of Beaumont coincides with the west line of Block; the west line of Beaumont and its northwest corner are in the east line of Montez; that the upper south line of Beaumont is the same as the north line of Block; and that the course and location of the Beaumont north line are in part the same as the south line of the Allen, and its northernmost corners are the southernmost of Stephenson.

The shaded area on our plat 2 pictures the appealing plaintiffs’ claim according to the field notes in their pleading. The judgment of the trial court tracked those field notes, including plaintiffs’ calls which referred to the northern boundaries of the shaded area as being the southern'boundaries of the Beaumont survey. When these references are disregarded it is clear that the present judgment gives complete effect, with insignificant variations, to the boundaries of the Beaumont survey as settled in Caswell v. Faulk, and avoids inconsistencies or conflicts with the boundaries of all surrounding surveys. Otherwise it is impossible to reconcile them. It is also clear that the claimed vacancy (except for the 28 acre tract which plaintiffs recovered) is entirely within the boundaries of Beaumont as fixed by Caswell v. Faulk.

Over-simplified, plaintiffs’ contention is that the upper boundaries of their claim are the true lower boundaries of Beaumont. To support this claim they insist that the easternmost boundary of Beaumont, as settled in Caswell v. Faulk (with its southern terminus in. the northeast corner, of the Block survey), requires a long- call for distance, exceeding by nearly one-half mile the length of such east line in surveyor Pinkston’s field notes 70 years earlier.

Plaintiffs say the claimed land involved in their appeal does not lie in the Beaumont survey. Caswell v. Faulk says it does. The total issue in plaintiffs’ appeal is thus the location and boundaries of the Jacob Beaumont Survey. That issue was completely adjudicated in Caswell v. Faulk, judgment in which fixed, and we think stabilized, such boundaries, delineating them by complete description. In seeking to establish their claim, plaintiffs’ surveyor honored and recognized the judgment in Caswell v. Faulk in some respects, but ignored and rejected it in others. In order for plaintiffs to recover the land they claim is vacant, the Caswell v. Faulk boundaries must be repudiated. The boundaries of the 28 acre tract as fixed by the present judgment are not in controversy so far as plaintiffs are concerned, since they moved for and obtained judgment fixing such boundaries, and seek here to have that portion of the judgment affirmed. This portion of the judgment is not inconsistent with that in Caswelj v. Faulk.

The Supreme Court of Texas, un-qualifiedly refused application for writ of error in Caswell v. Faulk. “When the Supreme Court once determines the true construction of a * * * written instrument that construction is binding in all subsequent suits involving the same subject matter, even though the parties in subsequent suits may not be the same as in the original suit”, under the doctrine of stare decisis. Mitchell v. Mitchell, 157 Tex. 346, 303 S.W.2d 352, 354. The application of the doctrine in the present suit is settled in Patterson v. Peel, Tex.Civ. App., 149 S.W.2d 284, 285, writ refused, in which the location of a survey had been established by a prior judgment which fixed common corners and called for adjoinders with other surveys. Jury findings consistent with the prior judgment were attacked. Holding the jury findings were essential elefnents in fixing boundaries 'and corners of adjoining surveys in the prior suit, the court said of the previous determination that those findings- “as a matter of law were binding upon all parties to this litigation, on the principles of stare decisis.” These principles operate as to the State. W. T. Carter & Bro. v. State, Tex.Civ.App., 139 S.W.2d 661, 663, writ refused. In the latter case it was held that where proper location of boundaries of a survey were necessary to adjudication of one suit, a final adjudication fixing such boundaries “would * * * be conclusive against all parties in a subsequent suit involving the same controversy. And this is true even in a suit by the State relating to vacancies, though the State be not a party to the suit in which such boundaries were judicially established,” and though the parties and property involved are not identical, under stare decisis. The rule we consider applicable here is summarized in Case-Pomeroy Oil Corp. v. Pure Oil Co., Tex.Civ.App., 279 S.W.2d 886, 888, writ refused.

The doctrine of stare decisis relates to questions of law and application of legal principles, and not, ordinarily, to fact issues. Horne v. Moody, Tex.Civ.App., 146 S.W.2d 505, 509, writ dis. C. J.; Duval County Ranch Co. v. Foster, Tex.Civ.App., 318 S.W.2d 25, 28, writ ref. n. r. e. When the Supreme Court unqualifiedly refuses a writ of error in a case where application of legal principles is necessary in the construction of a survey and the location of its boundaries, the decision is “one of law”, and courts in subsequent cases are “duty bound to follow those decisions in all cases in which the question of the proper method of constructing” such survey is involved. Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993, 996.

Caswell v. Faulk turned on application of legal principles in determining the legal method of locating the Beaumont survey on the ground. Its decision required application of legal principles in fixing the northeast corner of the Allen as being the- southwest corner of the Stephenson and in fixing th'e southern boundaries ‘of Beaumont, agreed to be the northern boundaries of Big 3B. The court there stated that application of those principles to its construction of the survey would result in giving every other affected survey more acreage than its patent called for, and that “the Beaumont survey, owned by the plaintiffs, will have considerably more acreage than its patent calls for,” and that “the Beaumont survey, a junior survey which calls for the lines of surrounding surveys, will take whatever land remains after the other surveys are located, whether that be more or less than called for in its patent.” Cas-well v. Faulk, in our opinion, is determinative of plaintiffs’ contentions as appellants, and on the foregoing basis we think the judgment should be affirmed.

Alternatively, if it should be held that it is necessary for ús to determine whether the jury findings are supported by the evidence, in order to expedite conclusion of this litigation we have carefully examined the evidence, and would hold that each of the jury findings is adequately supported thereby; and we would overrule all of appellants’ points.

Affirmed.


author: COLEMAN, Justice.

text:
    Dennis LAWSON et al., Appellants, v. W. B. BAKER et al., Appellees.
    No. 13814.
    Court of Civil Appeals of Texas. Houston.
    Nov. 16, 1961.

      Peareson, Scherer & Roberts, Walton Roberts, Richmond, De Lange, Hudspeth & Pitman, C. M. Hudspeth, M. Marvin Katz, Houston, for appellants.
    Strong, Baker & Heyburn, John Hey-burn, Houston, Allen P. Fannin, Pasadena, H. Cecil Baker, Rosenberg, for appellees.
   COLEMAN, Justice.

This is a suit for partition of land. Ap-pellees claim an interest in the land in question through Santee Griffin. They contend that Santee Griffin acquired an interest in the land by inheritance from Annie Belle Griffin, his daughter. Appellants deny that Annie Belle Griffin was the daughter of Santee Griffin. The following issue was submitted to the jury:

“You are instructed that the law presumes a child born during wedlock 'to be the legitimate child of the husband and wife. Such presumption may be overcome by proof by the Defendants, that the husband did not have access to the wife at a time which would enable him to beget the child.
“Special Issue No. 1
“Do you find from a preponderance of the evidence that Santee Griffin was-the father of Annie Belle Griffin?
“Answer ‘We do’ or ‘We do not.’ ”
The jury answered, “We do not.”'

The trial court sustained appellees’ motion to disregard the verdict of the jury and entered judgment for appellees.

It is conceded that the matter in dispute in this case is whether or not Santee Griffin was the father of Annie Belle Griffin. It is undisputed that Annie Belle Griffin was born while Santee Griffin was married to Hattie (Addie) Lawson, her mother. The evidence is disputed as to whether or not Annie Belle Griffin was conceived before or after the marriage.

The authorities are in agreement that there is a presumption that a child born during the existence of a legal marriage is legitimate. Gonzalez v. Gonzalez,. Tex.Civ.App., 177 S.W.2d 328; Carnes v. Kay, Tex.Civ.App, 210 S.W.2d 882. Antenuptial conception does not weaken-this presumption. Pinkard v. Pinkard, Tex.Civ.App, 252 S.W. 265; Moore v. Moore, Tex.Civ.App, 299 S.W. 653; Marckley v. Marckley, Tex.Civ.App, 189 S.W.2d 8. This presumption may be overcome by proof that the husband did not have.access to his wife at the time of conception. Foote v. State, 65 Cr.R. 368, 144 S.W. 275; Marckley v. Marckley, supra; Groulx v. Groulx, 98 N.H. 481, 103 A.2d 188, 46 A.L.R.2d 994; Peoples National Bank of Greenville v. Manos Brothers, Inc, 226 S.C. 257, 84 S.E.2d 857, 45 A.L.R. 2d 1070; Carfa v. Albright, 39 Wash.2d 697, 237 P.2d 795, 31 A.L.R.2d 983.

Appellants introduced certain testimony for the purpose of proving nonaccess. Dennis Lawson, one of the appellants and the brother of Hattie Griffin, testified that Hattie lived with him in Areola; that the first time he remembered Santee coming to Areola was in January, 1914; that his sister didn’t know Santee before that time because Santee lived at Chenango (about 15 miles from Areola); that his sister quit school in January, 1914, because she was pregnant; that she was eighteen years old at the time; that she married Santee March 22, 1914 and that Annie Belle was borne in June 1914, about three months after her marriage; that he didn’t know whether Santee had ever been in his community or around his house prior to January, 1914. Santee Griffin was working in Duck, Texas, at the time of the marriage. Duck is about 1½ miles from Areola.

Annie Belle Lawson, the wife of Dennis Lawson, testified that Santee first came to Duck, Texas, in 1914; that Santee had never seen Hattie before January of 1914; that Hattie became pregnant before she married Lawson in 1913. There was substantial contradictory testimony which the jury chose not to believe.

The only evidence which would support a jury finding of non-access was the testimony of Dennis Lawson that his sister did not know Santee Griffin before January, 1914, and that of his wife that Santee had never seen Hattie before January of 1914. These statements are obviously conclusions or opinions about a matter concerning which the witnesses could not have had firsthand knowledge. It would not be reasonable to assume that Dennis and Annie Belle Lawson remained constantly with Hattie Griffin so as to know of their own knowledge who she knew or had seen. Unless their testimony was based on hearsay, it appears they were testifying that so far as they knew Hattie did not know Santee before January, 1914. This amounts to a mere surmise and, therefore, is without probative value. American National Insurance Co. v. Dailey, Tex.Civ. App., 187 S.W.2d 716; United States Fidelity and Guaranty Co. v. Henderson, Tex. Civ.App., 53 S.W.2d 811; Leal v. State, 106 Tex.Cr.R. 68, 291 S.W. 226; Texas & N. O. Ry. v. Wood, Tex.Civ.App., 166 S.W.2d 141.

Testimony based on the statements of a husband or wife tending to prove nonaccess has no more probative force than the direct testimony of the husband or wife would have had, and will not support the verdict of a jury. Dennis Lawson testified for the purpose of a bill of exception that Hattie told him that she met Santee for the first time at church in January, 1914 and that she had never seen him before that time. This testimony was properly excluded by the trial court. Gonzalez v. Gonzalez, Tex.Civ.App., 177 S.W.2d 328; Carnes v. Kay, Tex.Civ.App., 210 S.W.2d 882; Reed v. State, 222 Ark. 119, 257 S.W.2d 362, 38 A.L.R.2d 567; United States Fidelity and Guaranty Co. v. Henderson, supra; Lambert v. State, 124 Tex. Cr.R. 33, 60 S.W.2d 460.

Hearsay evidence has no probative force even though admitted into evidence without objection. Lewis v. J. P. Word Transfer Co., Tex.Civ.App., 119 S.W.2d 106, error ref.; Winn v. Federal Land Bank of Houston, Tex.Civ.App., 164 S.W. 2d 864, error ref.

Here an attempt is made to establish the fact of nonaccess by circumstantial evidence. In such a case the circumstances relied on must have probative force sufficient to constitute the basis of a legal inference and should not be of such character as to permit of purely speculative conclusions. Green v. Texas and Pacific Ry. Co., 125 Tex. 168, 81 S.W.2d 669; McCrory’s Stores Corp. v. Murphy, Tex. Civ.App., 164 S.W.2d 735, error ref.; Williams v. Rearick, Tex.Civ.App., 218 S.W. 2d 225.

To support a verdict there must be more than a mere scintilla of evidence. There must be evidence sufficient to warrant a reasonable belief in the existence of the fact sought to be inferred. Canode v. Sewell, Tex.Civ.App., 182 S.W. 421 ; Kenyon v. Bender, Tex.Civ.App., 174 S.W.2d 110, error ref.; Missouri-Kansas-Texas Ry. Co. v. Roegelin Provision Co., Tex.Civ.App., 260 S.W.2d 605, ref., n. r. e.

Appellees assert that appellants have no standing in court to assail the legitimacy of Annie Belle Griffin. The evidence shows that no attack on her legitimacy was made by Santee Griffin and his wife, Hattie Griffin. They lived together for years after her birth. Both appellants’ and appellees’ claim to the land in dispute is derived from Annie Belle Griffin. Appel-lees’ position is supported by Byrd v. Travelers Insurance Company, Tex.Civ.App., 275 S.W.2d 861, and Morton v. Morton, Tex.Civ.App., 286 S.W.2d 702, but we prefer not to base the decision in this case on those authorities.

Under our decisions, the controlling issue for decision by the jury was whether or not it was impossible for San-tee Griffin to be the father of Annie Belle by reason of nonaccess. The record is silent as to whether or not Annie Belle was born after a normal nine months pregnancy. Considering the testimony in the light most favorable to appellants, it would establish that Annie Belle was born in the latter part of June, 1914, or approximately six months after Santee met Hattie, according to the testimony of appellants’ witnesses. Because of the undisputed testimony that the child was born in lawful wedlock, it was necessary that appellants secure a jury finding that Santee Griffin did not have access to Hattie Lawson during the period of possible conception prior to their marriage. The instruction given to the jury in connection with the special issue submitted might have been construed by them to mean that the child must have been conceived during wedlock. Since the jury believed that Santee Griffin was not the father of Annie Belle, it is possible that they rationalized the instruction given by the court to the effect that the presumption of legitimacy could be overcome by proof that the husbmid did not have access to the wife at a time which would enable him to beget the child to mean that -if at the time the child was conceived there' was no husband and no wife in a legal sense, they should answer the issue as they did. The answer made by the jury, therefore, does not necessarily depend on a fact finding of no access. The answer of the jury to the special issue submitted, that Santee Griffin was not the father of Annie Belle Griffin, is not sufficient to rebut,the presumption of legitimacy arising from birth in lawful wedlock. This Court cannot imply that the trial court made a finding of fact on an omitted issue which would not support the judgment which he rendered, Ingram v. Ingram, Tex.Civ.App., 249 S.W.2d 86, even if it could be considered an element of the issue submitted.

The judgment of the trial court is affirmed.


author: YOUNG, Justice.

text:
    Sam JEMERSON, Appellant, v. HOUSTON-AMERICAN FINANCE CORPORATION, Appellee.
    No. 15855.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 10, 1961.

      Fritz & Vinson, Dallas, for appellant.
    Irion, Cain, Cocke & Magee, Burt Berry and Ivan Irwin, Dallas, for appellee.
   YOUNG, Justice.

This suit was filed by appellant as plaintiff below for the statutory penalty under Art. 5073, Vernon’s Ann.Civ.St. for collection of alleged usurious interest; and actual damages of $20,455.35 for mental and physical injuries allegedly sustained as a result of unreasonable collection efforts exerted by employees of defendant corporation. On a jury trial with submission of 20 special issues, 10 issues were left unanswered and a mistrial was declared on the tort phase of the litigation. On motion by each party for severance of the contract phase of the case from the tort action, same was granted; the court then denying plaintiff a recovery under above penalty statute, followed by this appeal.

Credit insurance premiums to amount of $274.30 were paid by appellee to an insurer for credit life, and credit health and accident insurance coverage for appellant on these four transactions; and $31.28 paid to still another insurer on the last renewal note of April 3rd, 1958 for a comprehensive theft policy on furniture; the borrower apparently making no complaint as to this last premium.

Issues Nos. 1 and 2 were to effect of whether on December 18, 1954, October 17, 1955, November 10, 1956 and April 3, 1958, defendant corporation had failed to give plaintiff the option to purchase the insurance herein from any insurer of his choice; and whether on same dates, said defendant failed to give plaintiff the option to purchase such insurance from any insurance agency of his choice. The jury answered “yes” concerning each instance inquired about. Likewise the jury answered “yes” to the inquiry of whether on November 10, 1956 and April 3, 1958, in connection with loan transactions of said dates, defendant charged plaintiff service fees in an amount in excess of the reasonable value of special services afforded by defendant to plaintiff; the amount of such excess charges on the respective dates being $11 and $10.

Defensive issues 17 and 18 inquired of whether plaintiff had voluntarily executed the “life insurance options in evidence in this case”; likewise, “health and accident options in evidence”; the jury answering “yes” in each instance. Similarly, the jury gave affirmative answers to issues 19 and 20 inquiring of whether the plaintiff had voluntarily waived the selection of any insurer or insurance agent of his own choice. These defensive issues were raised in defendant’s trial amendment in allegations that plaintiff had previously obtained loans from finance companies operating under Art. 1524a-l, V.A.C.S. and had purchased both credit life insurance and health and accident insurance from agents of those companies, therefore having prior knowledge that such insurance was required before a loan is made; that plaintiff had hence waived the right to solicit an insurance agent with regard to his own loans in the present instance when he “failed to voice a preference at the time he signed these applications for insurance.” Defendant further alleged that in view of the foregoing and relying upon the conduct of plaintiff, it had granted loans to plaintiff that it would not otherwise have made; plaintiff being thereby estopped from claiming that he was not “given an option to purchase such insurance from any insurer or insurance agent of his own choice”.

In defendant’s motion for judgment, it alleges: “That under the undisputed evidence in this cause and as a matter of law the plaintiff is not entitled to recover any sum of money for alleged usury. Defendant shows the court that the four transactions involved in this suit are in words and figures as follows:

Date of note Note Int. Life Ins. Prem. H&A Prem. Cash.
12-18-54 (18 months) 774.00 100.96 23.22 56.89 592.18
10-17-55 (18 months) 774.00 100.96 23.22 56.89 9.18
11-10-56 (18 months) 630.00 82.17 18.90 42.53
4-3-58 (18 months) 540.00 70.43 16.20 81.54 36.45 0 192.76 601.36
Total Cash & Insurance 601.36 81.54 192.76
Insurance Refund 875.66 9.00
884.66 Total Repayments 745.46”

Defendant’s motion .further stated that un-disputably all of above insurance premiums charged were paid by it and forwarded to the insurance companies; also that each of the transactions involved were renewals of the original indebtedness, and that the principal sums of money advanced by defendant have not been repaid, regardless of any interest charge.

We must first notice appellee’s objections to 8 of appellant’s 11 points of error; stating that same are either multifarious under the requirements of Rule 322, Texas Rules of Civil Procedure or are not properly preserved in appellant’s amended motion for new trial as required by Rules 324 and 374. We do not deem it necessary to quote the points in question because the objections made have been adequately answered in appellant’s reply brief. Same are not seen to be multifarious as charged; and it must be recalled that he is here appealing from the court’s overruling of plaintiff’s motion for judgment on the jury verdict, which directly relates to the gist of all objections. A like inadequacy of points was charged by a defendant and overruled iri Barron v. James, 145 Tex. 283, 198 S.W.2d 256, 259; our Supreme Court holding in part: “Rule 324 requires, with certain exceptions, that a motion for new trial be filed as a prerequisite to the appeal of all cases tried before juries. One of the exceptions stated in the rule is that an assignment in a motion for new trial shall not be necessary as a prerequisite to the right to complain of the action of the court ‘in rendering or refusing to render judgment non obstante veredicto, or in overruling a motion for judgment for appellant on the verdictIt seems that in view of this exception petitioners, without assigning error in a motion for new trial, could complain on appeal of the court’s refusal to render in their favor, * * (Emphasis ours.)

At the trial, appellant had objected to the submission of defendant’s issues 17-20 for the reason that the word “voluntarily” was not defined, one of the essential elements of waiver not being established thereby; of no evidence or insufficient evidence to justify the submission of such issues; and that regardless of whether the jury answers to issues 17-20 would constitute a proper basis for the court’s judgment for defendant, the trial court erred in rendering any judgment because the jury answers to issues 1 and 2 were in irreconcilable conflict with said jury answers 17-20.

In connection with each of the four loan transactions, plaintiff was required to sign a loan and settlement sheet which set forth the amount of cash received by the borrower, together with amounts charged for interest and insurance and the face amount of the note. Each of said instruments also contained a printed paragraph at the bottom stating: “Choice of Insurer and Agent— The option has been extended to me to purchase this insurance from any insurer or agent of my own choice, and I freely chose the insurer and agent to whom this application is made.”

Plaintiff Jemerson (also his wife Lula) testified concerning the circumstances of the original loan of December 18, 19S4 from which we quote excerpts:

“Q. * * * Now, how did you happen to take out insurance at the time you made that first loan ? A. Well, we had insurance but he just gave me papers there to sign and said this was insurance. He didn’t ask me no kind of knowledge or nothing about it. But to pay my bill when I was sick and I asked him personally about that insurance, because I carried it with the Community and he said he wasn’t carrying that kind, but I see now they said we had that kind of insurance.
“Q. You say that you already had some insurance with another company ? A. With the Community, I had that kind that if I got sick it would pay my payments.
“Q. * * * state what the conversation was with reference to insurance ? A. Well, he said that — insurance, but he didn’t ask me nothing about it. He just put the paper down and marked an ⅛’ and told me to sign that and that is what I did. I didn’t read any of it.
“Q. State the facts as to whether or not he told you that you could take the insurance out with anybody you wanted to ? A. No, sir, we didn’t have any conversation about the insurance at all. * * *
“Q. State the facts as to whether or not he told you you could take the insurance out with any agent that you wanted to? A. No.”

Similar testimony from plaintiff was reiterated with respect to subsequent renewals.

On behalf of plaintiff Jemerson, one Hawkins, former manager of defendant company from December 1954 to April 1955, testified as follows concerning the policy of defendant with respect to sale of credit insurance in connection with personal loans:

“Q. From December, 1954, until you left, what were your instructions ? A. We were to include life and accident and health insurance on each loan.
“Q. * * * were those instructions followed? A. Yes. * * *
“Q. All right. During that period of time that I was referring to, from Decern-ber, 1954 until you left in 1955, state the facts in what • company, what life insurance company and health and accident insurance company those policies were sold in connection with the loans? A. You mean what company they were—
“Q. Yes, sir. A. Houston-American Life Insurance Company.
“Q. Now, was that true of all loans that were made during the period of December, 1954, until you left them, January of fifty — until April of 1955? A. That is right.
“Q. Were you permitted or anyone else in the office permitted to sell insurance in any other company? A. No.
“Q. State the facts as to whether the borrowers during that period were given the option to purchase insurance from a company of their own choice? A. No.
“Q. During the period you were Manager of the Dallas office from December, 1954, until April of 1955, were the borrowers ever given the option to purchase insurance from a company of their own choice? A. No.
“Q. Were they during that period ever given option to purchase insurance from an agent of their own choice? A. No.
“Q. And this was true of both life and health and accident insurance, wasn’t it? A. That is right.”

And Mary Winn employed by the defendant from January 1955 through August 1958, first as typist and then as assistant manager, testified that throughout her employment she did not recall a person making a loan without purchasing credit insurance from Houston-American Life Insurance Company; that she received her instructions from the managers of the defendant office; testifying as follows:

“Q. Well, now, these instructions that were given you by managers, did they give you — did they authorize you to sell any insurance in any other company besides Houston-American Life Insurance Company? A. No.”

On the other hand appellee under a counterpoint quoted excerpts from the testimony of Lula Jemerson in regard to one of the loan applications, executed by her that “I knew it was there but I didn’t read it”; and to the question “did you want the insurance,” replied “I don’t know. It didn’t make any difference to me one way or the other;” that both Jemersons had ample opportunity to read and examine the instruments, particularly those pertaining to the transaction of November 10, 1956 because they were given him to take home over night in order that his wife might sign them; Sam Jemerson testifying “I knew I was taking out insurance” and said that he didn’t blame anyone for his failure to read the option agreement. He later received a refund on a credit insurance premium of $8.

Here it will be noted that under jury answers 1 and 2, defendant failed to give plaintiff the option to purchase the insurance from an agent or insurer of his own choice. Appellant argues that in view of these answers and the foregoing testimony of the Jemersons, Hawkins, and Mrs. Winn, this defendant never made known to plaintiff any right to select any insurance and insurer or agent of his own choice; and hence that he was never in a position to assert or relinquish such a right. But, says appellant “if the meaning of ‘voluntarily’, when applied to signing an instrument, as in the instant case, implies actually being given a choice, and knowing what the choice is, then there is a necessary and irreconcilable conflict between ‘voluntarily’ executing such an instrument and being denied the choice. In the instant case, the jury found plaintiff ‘voluntarily’ executed the statement that he had then been given an option. And the jury also found that defendant failed to give any such option. Under this meaning of ‘voluntarily’, there is an irreconcilable conflict between these two sets of answers.” With this argument we agree. In a situation closely analogous it was concluded in Continental National Bank v. Hall-Page Tire Co., Tex.Civ.App., 318 S.W.2d 127, 128 that “both answers cannot he correct.” And * * * “When material answers are conflicting, the verdict is destroyed and there is nothing on which to base a judgment.” See also 41-B Tex.Jur. pp. 802-807.

In motion for judgment appellee further asserts no usury on face of the four transactions under the foregoing history thereof, a conclusion which appellant denies, the latter in turn claiming usury on basis of jury answers 4 and 5 — excessive service charges — of $21; entitling him at least to a judgment for double damages in that amount, or $42. Be this as it may, in our opinion, the trial court should not have endeavored to render a final judgment on the contract phase of the case; but instead should have ordered a mistrial by reason of the conflict of issues as above discussed.

The judgment under review is accordingly reversed and cause remanded to the trial court.


text:
    STATLER HOTELS, Appellant, v. HERBERT ROSENTHAL JEWELRY CORPORATION, Appellee.
    No. 15870.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 6, 1961.
    Rehearing Denied Nov. 3, 1961.

      Jackson, Walker, Winstead, Cantwell & Miller, W. B. Patterson, and Jack Pew, Jr., Dallas, for appellant.
    Johnson, Guthrie & Stanfield and James L. Mitchell, Dallas, and Rein, Mound & Cotton, New York City, for appellee.
   YOUNG, Justice.

Herbert Rosenthal, representing appellee corporation of New York City, made one of his regular trips to Texas in November 1956 for purpose of soliciting retail jewelry orders for his wholesale jewelry firm. He arrived in Dallas the afternoon of November 21st, registering at appellant hotel as a paying guest. Then with his sample case containing some 342 pieces of diamond jewelry he called on several local establishments, returning to the hotel about 5 p. m. and obtained from hotel cashier safety deposit vault #357, depositing therein his sample case of jewelry. The box had two locks one opened by a key retained by the hotel guest, the other a master key in possession of the hotel. On November 23rd, he went to the cashier’s cage, showed his safety deposit key and asked for entry into Box #357; being admitted to the safety deposit box room by a different cashier. On opening the box by use of both keys it was found to be empty. This suit followed, plaintiff alleging that defendant’s negligence resulted in loss or theft of its property; and upon jury issues and answers, judgment was rendered for the jewelry company in amount of $65,000 with 6% interest from date of loss, and consequent appeal by the hotel. There was no recovery against named individuals also sued.

Appellant’s first point complains of court error in overruling its motion to dismiss cause “because the undisputed evidence shows that appellee was a foreign corporation transacting business in Texas without a certificate of authority” as required by Art. 8.18, Texas Business Corporation Act, V.A.T.S.; which provides in part: “No foreign corporation which is transacting, or has transacted, business in this State without a certificate of authority shall be permitted to maintain any action, suit, or proceeding in any court of this State * * * on any cause. of action arising out of the transaction of business in this State, until such corporation shall have obtained a certificate of authority.”

Appellee is a foreign corporation which manufactures and sells at wholesale; having no certificate of authority to transact business in Texas. Its method of operation in this State is reflected in testimony of Herbert Rosenthal, Secretary-Treasurer, as adduced in the motion, summarized as follows: Plaintiff’s sales in Texas are made by a salesman Zuehl, living in El Paso, who makes all the small towns in Texas and New Mexico, and by Herbert Rosenthal, who sells in the larger cities. The latter with headquarters in New York City makes some five trips per year to Dallas and Houston to sell jewelry; estimating that he had been in Dallas at least fifty times in the ten years prior to November 19S6. His routine of work is not only to take orders for jewelry later to be shipped from New York; he also carries merchandise with him in a sample case, and upon a sale of jewelry he immediately delivers the piece to the buyer. He may leave the jewelry with customer on appraisal or subject to the buyers’ being able to sell it; and in case the buyer decides that he does not want the j ewelry or is unable to sell it, it is picked up by Rosenthal on next trip. All payments for jewelry are made directly to the corporation’s office in New York City; the El Paso salesman Zuehl operating in the same manner, maintaining no business office there for plaintiff corporation and representing numerous other jewelry concerns.

The Texas Business Corporation Act (Art. 8.18, passed in 1955) does not undertake to define “transacting business”, except to list several activities (none applicable here) which do not amount to the transaction of business'. See Art. 8.01. Appellant argues that under above undisputed facts appellee’s activities constituted the transaction of business; citing Normandie Oil Corporation v. Oil Trading Co. Inc.; 139 Tex. 402, 163 S.W.2d 179, 180—a 1942 decision construing the former statute, A-rt. 1529 covering corporations “desiring to transact or solicit business in Texas, or to establish a general or special office in this State.” The Business Corporation Act does not mention solicitation; merely prohibiting the transaction of local business without a certificate of authority, Art. 8.01, subd. A, but generally providing that transactions in interstate commerce are beyond the scope of local business activities. Art. 8.01, subd. B. 14 Tex.Jur.2d Par. 618, p. 709. Ap-pellee takes the opposite view, citing 14 Tex.Jur.2d Par. 706, 710 and 711; and obviously the character of business as intrastate or interstate must turn upon the facts of the particular case. While we fire inclined to agree with appellee’s thesis that its activities in Texas are interstate in nature, such method of operation is not controlling here. At time of the theft, Rosen-thal had transported the jewelry in question from New York City intervening a further journey to Washington, Oregon and California. Under the testimony and as ap-pellee states “He did not have or attempt to have any jewelry transactions with Stabler Hotels and only as an incident to his lodging there had entrusted the hotel with the safe-keeping of his jewelry until he could transport it out of the State. His deposit of the jewelry did not arise out of the transacting of business within the State, even if his dealings are considered to be intrastate transactions, which they are not.” The point is overruled.

In sum, the jury findings were: that the sample case of jewelry owned by plaintiff was deposited in vault #357 Statler Hotel on November 21, 1956; that on such date the reasonable wholesale cash market value of same in Dallas County was $65,000; that the failure of defendant hotel to deliver to Rosenthal on demand the sample case of jewelry was due to negligence of hotel employees which was a proximate cause of the loss; that defendant, its agents and employees failed to maintain adequate safety measures for protection of the sample case and its contents, which was a proximate cause of loss; that defendant, its agents and employees allowed a master key controlling access to locked boxes to be unguarded, which was negligence and a proximate cause of loss; that at the time, defendant’s agents and servants allowed an unauthorized person access to said safety vault # 357 without first requiring proper identification, which was negligence and proximate cause of loss of sample case and its contents and that the incident in question was not the result of an unavoidable accident. To the merits, the hotel company defended on ground that it had adequate measures for protection of its safety deposit boxes and that the loss was due to a theft so well planned that exercise of ■ordinary care could not have avoided it.

Appellant makes no complaint of lack of evidence to support above findings; its further points asserting court error in its refusal to make findings of fact and conclusions of law following the overruling of motion to dismiss under provisions of Art. 8.18 Texas Business Corporation Act; error in permitting Virginia O’Pell, the hotel’s supervisor of front office cashiers at time of loss (and still employed at Los Angeles Statler-Hilton), to testify that she had observed an unauthorized person in the area of the safety deposit boxes prior to November 1, 1956; error in excluding from evidence a report of Dallas Police Department showing that the loss of jewelry was due to a well-planned jewelry theft; error in refusing to permit Captain Walter Fannin, of the Dallas Police Department, to testify that during the time surrounding the loss of jewelry, there had been a series of jewel thefts and robberies throughout the United States; error in refusing to admit in evidence or in excluding from the jury’s consideration, defendant’s exhibits 30 and 31, consisting of sworn proof of loss and the insurance policy it was based upon, for the reason that the two instruments taken together have independent relevance for the purpose of impeaching plaintiff’s witness, Herbert Rosenthal, with regard to value of the jewelry; in entering judgment against appellant because no proper issue was submitted to tlie jury which could form the basis of a proper measure of damages in a suit for negligence; and error in awarding interest to appellee from date of loss of the j ewelry.

Under point 2, appellant cites no rule requiring the trial court to make findings of fact and conclusions of .law in above interlocutory proceeding to dismiss suit. To the contrary, Rules 296 and 297, Texas Rules Civ.Proc., relate to non-jury trials; Williams v. Thetford, Tex. Civ.App., 301 S.W.2d 954. And Rule 385(e) provides that in all appeals from interlocutory orders the court need not file such findings and conclusions. Furthermore, the testimony of Rosenthal, though an interested witness, was clear, direct and free from contradictions or inconsistencies tending to cast suspicion thereon. 41 B Tex.Jur.Sec. 402, p. 494; defendant relying entirely on the same as a basis for its motion to dismiss.

Over objection of defendant, plaintiff was permitted to read from the deposition of Virginia O’Pell, an employee of the hotel at time of theft, a question and answer as follows: “If you have stated some of the safety deposit boxes were located on the lobby floor of the Statler-Hilton Hotel during November and December 1956, then will you state whether you ever observed unauthorized persons in the area of the safety deposit boxes on the lobby floor prior to November 21, 1956, and, if so, give the approximate dates and circumstances? “Answer: Yes, unauthorized people have been in there repeatedly, such as room clerks, front office managers, assistant managers, and from time to time mechanics, and also the credit manager and house physician. At one time Louise Evans brought her children into the vault area and I told her this was not authorized. I can’t give specific times and dates.”

Appellant insists that above evidence could have been offered for purpose only of showing that on prior occasions the hotel had failed to protect its vault area and thus raise the inference that it failed to use ordinary care to protect against the theft in question; citing the well-settled rule of M. K. & T. Ry. Co. v. Johnson, 92 Tex. 380, 48 S.W. 568, that when the issue involved is whether or not a person has been negligent in doing or failing to do an act, evidence is not admissible to show that he was guilty of a similar act of negligence on a prior occasion. It is stated that the rule has been modified only in the recent Supreme Court case of Dallas Ry. & Term. Co. v. Farnsworth, 148 Tex. 584, 227 S.W. 2d 1017, 1020; the court there holding: “Evidence of similar transactions or conduct on other occasions is not competent to prove the commission of a particular act charged ‘unless the acts are connected in some special way, indicating a relevancy beyond mere similarity in certain particulars.’ ” Even under the Farnsworth case, a relevancy of the testimony in question is indicated. As a part of its defense of adequate safety measures defendant had sought to show by various witnesses that access to the safety deposit boxes was only through a door always kept locked and controlled by its employees. The testimony of Mrs. O’Pell was admissible at least to rebut the defense of adequacy, of these safety measures. After all, it was but cumulative of the testimony of Mrs. Agnes McDowell and other front office employees of the hotel, admitted without objection that she had seen strange men in the vault area “from time to time” and that it was possible for persons to enter the area of the safety deposit boxes without any assistance from the cashiers. Finally, the testimony of Mrs. O’Pell would have no bearing on other acts of negligence found against defendant; for example, issue 5-A the jury there finding that defendant permitted the master key for all deposit boxes to be unguarded which was negligence and a proximate cause of plaintiff’s loss.

Points 4 and 5 allege court error in (a) the court’s refusal to admit in evidence defendant’s exhibit 11, a report by the Dallas Police Department showing that the loss of jewels was due to a well-planned jewelry theft; and (b) excluding the testimony of Captain Walter Fannin that during time immediately surrounding the loss of jewels there had been a series of jewel thefts and robberies throughout the United States. Here invoked are the provisions of Art. 3731a, V.A.C.S. Sec. 1. “Any written statement, certificate, record, return or report made by an officer of this State or of any governmental subdivision thereof, or by his deputy or employee, in the performance of the functions of his office shall be, so far as relevant, admitted in the courts of this State as evidence of the matters stated therein, subject to the provisions in Section 3” (having to do with notice). Such report, having been properly proven up, should have been admitted in evidence insofar as its contents were relevant. See Travis Life Insurance Co. v. Rodriquez, Tex.Civ.App., 326 S.W.2d 256; (Sup.) 328 S.W.2d 434. The police report reconstructs the actual theft by parties unknown as summarized in appellant’s brief and shown in Footnote.

But this is not to say that its exclusion as evidence was reversible error. Gist of said report was testified to by Captain Fannin in considerable detail; inclusive of his conclusion that this was a well-planned theft; not closed either by his department or the FBI who were still working on the matter. And concerning point 5, Captain Fannin was interrogated by appellant’s counsel as follows: “All right, I will ask you whether or not during this period of time that we are talking about, there during the latter part of 1956, from September of 1956 on toward the end of the year, there was a series of jewel thefts and robberies, of the kind and character of this particular theft throughout the United States?”. On sustaining of objection of appellee, the question was not answered and no bill of exceptions was' taken as to what the response of the witness would have been. See Gray v. Mills, Tex.Civ.App., 206 S.W.2d 278, aff. 147 Tex. 33, 210 S.W.2d 985; Wheat v. Citizens Nat’l. Bank at Brownwood, Tex.Civ.App., 310 S.W.2d 735. Both of these points are overruled.

In point six, error is claimed in the court’s refusal to admit into evidence defendant’s exhibits 30 and 31, consisting of a sworn proof of loss and insurance policy on which it was based, for the reason that the two instruments taken together have independent relevancy for purpose of impeaching plaintiff’s witness Herbert Rosen-thal with respect to value of the jewelry. The executed policy of insurance under which the proof of loss was made and a part of his loss collected, provided in part: “The company shall not be liable beyond the actual cash value of the property at the time of any loss of damage, and the loss or damage shall be ascertained or estimated according to such actual cash value.” Rosen-thal had testified on direct examination that the reasonable wholesale cash market value in Dallas, Texas on November 21, 1956, was approximately $75,000; also that he had, in January 1957, signed a sworn proof of loss in the amount of approximately $48,100, the court excluding the insurance policy altogether, limiting introduction of proof of loss to interrogation on “value” and “theft”. Appellant was allowed to show by the testimony of this witness that he had previously signed a proof of loss for $48,145.25; but complains that this was wholly ineffectual because the jury was not shown that the witness was entitled to claim at the time, Rosenthal only identifying that figure as his cost in the jewelry. Says appellant here: “In other words, merely because the subject of insurance was concerned, Appellant was not allowed to show that the claim to which the proof of loss related was for actual cash value. The lower figure, when tendered in the abstract manner allowed by the trial court, could have no persuasive effect on the jury.”

That it is error to inject the subject of insurance coverage into a jury trial is well settled, Page v. Thomas, 123 Tex. 368, 71 S.W.2d 234; a recognized exception being to effect that if a matter has independent relevancy, it is admissible, even though the fact of insurance coverage is revealed. Factually in point is Moore v. Dallas Ry. & Term. Co., Tex.Civ.App., 238 S.W.2d 741, 743, where a plaintiff suing for property damage of $1150, the defense was permitted to show that such plaintiff had made a statement of proof of loss to his insurer of only $891.01. In affirming a defendant’s judgment the appellate court there stated: “In a suit for damage, it is a well recognized rule that the introduction in evidence before the jury of facts showing that either party is insured is reversible error. In the light of the particular facts of this cause, this rule does not apply.”

Here, however, the fact situation was dissimilar; the court being faced with the dilemma of either declaring a mistrial for unnecessary disclosure of insurance coverage and yet not interfering with any legitimate cross-examination of Rosenthal on prior inconsistent statements. The problem was solved by Judge Williams, and we think correctly, in this way outside the presence of the jury: He informed appellant that it could interrogate Rosenthal on anything he had said in the proof of loss about values or any inconsistent statement made in the proof of loss; cautioning both sides not to mention “insurance company” or “anything else having to do with insurance”; the court then stating “now that policy need not go into evidence at all”; defense counsel answering “all right, now, let me be clear. As long as, I do not mention insurance or insurance company I am permitted to go into anything that is on this sheet”, (referring to exhibit 30, the proof of loss).

The testimony of Rosenthal as a whole beginning with his exhibit 3 makes it clear that his figure of $48,145.25 consistently had reference to adjusted values (manufacturers cost, eliminating ordinary overhead and mark-up) which was the basis of his claim under the policy of insurance— something quite different from actual values in Dallas to which would be added under the testimony a normal profit of 35% on the sale of such jewels.

Although not objected to at the trial, appellant now complains of no proper issue on measure of damages, suggesting fundamental error. No error deemed fundamental can be raised for the first time on appeal if an examination of the statement of facts is necessary to determine the question. 3. Tex.Jur.2d p. 463; find' furthermore, the assignment does not involve fundamental error under the present rules as construed in recent Supreme Court decisions. See Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979.

Lastly, error is assigned in the court’s award of interest from date of loss of the jewels. We overrule the point and pretermit a discussion of .cases cited by appellant. Clearly we think the ruling was correct under the rule announced in Watkins v. Junker, 90 Tex. 584, 40 S.W. 11; consistently followed in subsequent cases and concisely summed up in Ricks v. Culp, Tex.Civ.App., 206 S,W.2d 285, 287: “ ‘It is now the settled law of this state that, where the damages, whether ex contractu or ex delicto, are complete at a definite time, and the amount is determined by fixed rules of evidence and known, standards of value, interest is recoverable as a matter of law from date of accrual of the cause of action. (Houston v. T. C.) Railway (Co) v. Jackson, 62 Tex. 209; Watkins v. Junker, 90 Tex. 584, 40 S.W. 11; Atkinson v. Jackson [Bros.], Tex.Civ.App., 259 S.W. 280; 28 L.R.A.,N.S., 1, note.’ * * '* Nor is a jury finding thereon necessary, where the case is submitted upon special issues. Ewing v. [Wm. L.] Foley-JInc.], 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627; Miller v. Miller, Tex.Civ.App., 292 S.W. 917, error ref.”

All points on appeal are overruled, resulting' in affirmance of the judgment under review.

WILLIAMS, J., not sitting.

      . “This report stated that on November 12, 1956, the same day Rosenthal arrived, a man giving the name of Robert Maisel, and a fictitious address arrived at the Statler-Hilton, asked for a safety deposit box, and requested Box number 357m ■which he stated was a ‘lucky number’. (The hotel had four safety deposit boxes ■large enough; to accommodate jewelers’ sample cases: 358, 359, and 360; the key had been lost to box 358 and the hotel used 360). Shortly thereafter, ‘an unknown man’ brought the key to a locksmith shop and ordered a duplicate to be ■ made. This information was later confirmed by the locksmith, who said the man fitted the description of Jake Gold, Maisel’s confederate. Maisel then returned to the hotel, removed his brief case, and released the locker.
      “Later that evening Gold giving a fictitious address in Chicago, checked in the hotel, asked for a safe deposit box, and was assigned number 359. At 5:55 the next morning Gold entered his safe deposit box. Two keys are required to open the box — the customer’s key, which fits only the individual box to which it is assigned, .and the master key which fits all the boxes and is retained by the clerk. Therefore, both he and the room clerk had to go to the vault to open his locker. At the time Gold was in the vault, another man came to the desk demanding service, and the room clerk left Gold in the vault.
      “Obviously, then, while Gold’s accomplice was distracting the attention of the room clerk, Gold opened Box 357 with the master key, which the clerk had left behind, and with the duplicate key that he had just had made that afternoon.
      “The report went on to note that similar jewel thefts had taken place in Memphis, Mobile, Houston, Austin and Pensacola, all within a short period of time before the theft in the present case and that the jobs were all well-planned, the preparations including a ‘trial run’ before the actual theft took place.”


author: CHAPMAN, Justice.

text:
    HOLLAND PAGE, INC., Appellant, v. DARR EQUIPMENT CO., Appellee.
    No. 7121.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1961.
    Rehearing Denied Nov. 27, 1961.
    David L. Tisinger, Austin, for appellant.
    Dalton, Moore & Walden, Dallas, for ap-pellee.
   CHAPMAN, Justice.

This is a venue case.

Appellee, Darr Equipment Co., a corporation whose principal offices are in Dallas County, sued Holland Page, Inc., whose principal offices are in Travis County. The primary suit was one for possession of certain dirt moving equipment theretofore leased by appellee to appellant and for recovery of damages provided for in the written Lease and Rental Agreement entered into between the parties. Ancillary relief in the form of a writ of sequestration was sought and obtained by appellee from the clerk of the District Court of Dallas County. Appellant’s plea to remove the suit to Travis County was duly controverted and venue sought to he maintained in Dallas County under Subdivision 5 of Article 1995, R.C.S., Vernon’s Ann.Civ.St. art. 1995, subd. 5. After a hearing upon the Plea of Privilege the trial court denied the same. Appeal was perfected to the 5th Supreme Judicial District, whose court sits in Dallas, and the case was transferred to us by the Supreme Court for determination.

Appellant’s sole point is that its plea was improperly overruled because “no money sued for was payable in Dallas County.”

The Lease and Rental Agreement constituting part of appellee’s pleadings and evidence provides in part that if appellee failed to observe any of the terms and conditions of the rental agreement lessor would have the right at its option to terminate the agreement and that in such event appel-lee agreed to pay “ * * * damages for any injuries to the property, costs of removal of said property from the possession of lessee, and all freight, storage, transportation, and other charges incurred by such removal, shipping, and return to the lessor at its place of business.”

Paragraph 8 of the agreement provides:
“All freight and switching charges, demurrage, transportation charges, loading and unloading charges, both ways, are to be paid by lessee, return transportation charges to be prepaid by lessee.”
Paragraph 14 provides:
“All rents and other sums of money payable by lessee under the terms of this lease shall be due and payable at the offices of lessor in Dallas County, Texas.”

The pleading upon which appellee went to trial alleged a breach of the agreement, sought its termination, alleged it had demanded a return of the property under the terms of the agreement, alleged a refusal to return the equipment and that by virtue of such refusal it was entitled to “all damages for injuries to the property, costs of removal of said property from the possession of the defendant and all freight, storage, transportation, and other charges incurred by such removal, shipping, and return to the plaintiff at its place of business in Dallas County, Texas.” It also alleges such damages to be $6,500.00 and that under the terms and conditions of the agreement appellant became obligated to pay to appellee, at its office in Dallas County all damages for injuries to the property. (Emphasis ours.)

We believe the trial court properly disposed of the case in denying the plea of privilege. Our Supreme Court in construing Subdivision 5 of Article 1995 R.C.S. has said “the essential obligation in suit for venue purposes is that of payment.” The record here shows appellee is seeking money damages for those items in the contract heretofore mentioned. Paragraph 14 above quoted provides, in addition to rents, that “all * * * other sums of money payable by lessee under the terms of this lease shall be due and payable at the office of lessor in Dallas County, Texas.”

Appellant contends the suit for damages under the “other sums of money payable by lessee” clause, was limited to those damages occurring after sequestration and would be part of the court costs.

To this contention we cannot agree. A sheriff who levies on and takes into his possession personal property under a sequestration proceeding would not be bound and obligated to deliver such property to another county and charge such expenses to court costs. For large and heavy items süch as those here involved there would he considerable expense incident to Storage, loading, and transportation from another county to Dallas County. All those items are alleged as part of the damages, payment for which was to be made “at the offices of lessor in Dallas County.”

Accordingly, under the authority of the Rorschach case above quoted the judgment of the trial court is affirmed.

      . Rorschach v. Pitts, 151 Tex. 215, 218 S.W.2d 120, 123.

      . The rents are not sought to be recovered in this proceeding.


text:
    Winton WELCH and Henry A. Spivey v. Dorothy Jo SHAVER et vir, J. D. Shaver.
    No. 7123.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 6, 1961.
    'Rehearing Denied Dec. 4, 1961.

      Thompson, Knight, Wright & Simmons, Dallas, for appellants.
    Woodgate, Richards & McElhaney, Dallas, for appellees.
   CHAPMAN, Justice.

This is an appeal by defendants below, Winton Welch and Henry A. Spivey, osteopathic physicians, from a judgment of the trial court based upon a jury verdict for Dorothy Jo Shaver, joined by her husband, J. D. Shaver, in a malpractice case against the two named defendants. Appeal was perfected to the - Sth Supreme Judicial District, whose court sits in Dallas, and the case transferred to us by the Supreme Court for determination.

In September, 1958, Mrs. Shaver, then 29 years of age and the mother of three children went to the offices of Drs. Welch and Harakal, osteopaths, in the city of Mesquite in Dallas County to seek relief from a cramping in her lower stomach. Dr. Harakal first saw her and after examining her told her that she needed surgery to correct the position of her uterus. In November, 1958 Dr. Welch examined her and told her the same thing. Then in December, 1958, immediately after Christmas, she was placed in East Town Osteopathic Hospital in Dallas County to be prepared for surgery. At that time Dr. Spivey, an osteopathic specialist in obstetrics and gynecology, gave her a pelvic examination. Before the beginning of surgery she was given the frog test for pregnancy, which, according to the osteopaths, showed negative. On December 29, 1958, when her abdomen was opened for surgery Drs. Spivey and Welch discovered that she was pregnant. Despite such discovery they continued with the uterine suspension. Severe and painful consequences resulted. One objective symptom of her pain appeared in a dimple of one to two centimeters depth overlying the operative scar in the mid-portion of her lower abdomen, which later surgery indicated was caused by adherence of the uterus to the anterior abdominal wall. During the time appellee was suffering so much following the surgery by the osteopaths she consulted Dr. Joey M. Pirrung, M. D., a young general practitioner. Feeling the need of a specialist in the case he called in Dr. Robert G. Campbell, who did a caesarean section to deliver the child at the end of the gestation .period because its head could never engage the pelvis for normal delivery.

^During the progress of the trial the court permitted a trial amendment to be filed by appellee which alleged negligence on the part of appellant “in proceeding to perform a suspension type operation upon Mrs. J. D. Shaver after they had learned that she was pregnant.” The case was submitted to the jury upon this one ground of negligence.

The sufficiency of the evidence to sustain the verdict was dependent, at least in part, upon the testimony of the two medical doctors, Dr. Pirrung and Dr. Robert G. Campbell, Chief of Obstetrics & Gynecology at the University of Texas Medical School in Dallas and a specialist in that field of medicine. Therefore, we are at the outset presented with the question of whether the testimony of the medical doctors was admissible against the osteopaths in the field of obstetrics and gynecology.

In the landmark case of Bowles v. Bourdon, 219 S.W.2d 779 at page 782 our Supreme Court has announced the general rule with respect to the evidence necessary to establish a cause of action against one’s doctor for malpractice in the following language:

“It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment unless he proves by a doctor of the same school of practice as the defendant; (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries.”

Some 4 years later the same court properly recognized that it would be utterly unrealistic to hold that medical witnesses would be incompetent to give opinion testimony against osteopaths in what constitutes the proper use of a spinal needle in administering a spinal anesthetic, where the proof showed that witnesses representing both the medical and osteopathic schools were trained in the use of a spinal needle in administering a spinal anesthetic and' that both were trained that it was highly dangerous to give the anesthetic above the first lumbar vertebra.

In that same case Justice Calvert, now Chief Justice of the court, said “some of the courts of other states recognize that the general rule of exclusion is subject to certain qualifications and exceptions,” and then named two exceptions into which the facts brought his case. One of-those exceptions was “where the particular subject of inquiry is common to and equally recognized and developed in all fields of practice.”

In the latest case we have seen on the competency of medical doctors to testify against those of the osteopathic school Justice Young of the Dallas Court of Civil Appeals has said: “If the methods, training and dangers incident to the operation in question are common to both schools of medical practice and equally recognized,” the testimony of Drs. Pritchard and Ware in our opinion, is brought well within the qualification announced in Porter v. Pur-year, supra.

We have carefully studied the 445-page Statement of Facts in the instant case and find that it is replete with testimony, particularly from the osteopaths, to the effect that in the field of obstetrics and gynecology both schools of training use practically the same text books in their instruction, the osteopaths take many of the same medical journals as the M.D.’s, use many of the same techniques, and recognize the same medical writers in that field as authority. For example, both medical witnesses and both osteopathic defendants recognize the writing of TeLinde as authority in the field of gynecology.

As one example of the testimony of the osteopaths in this connection Dr. Welch said:

“A. With the exception of osteopathic principles and practice, and you’ll find the osteopathically-edited books for that particular part of the educational process; but your basic sciences and your other sciences (surgery, obstetrics, gynecology, and so forth) medical texts are used.”

Another illustration is in the testimony of Dr. Spivey wherein he said in substance that the only difference in the teaching and training of the two schools were those instances in which the osteopaths use manipulation type therapy to correct something of a mechanical nature, such as a crick in the neck, instead of giving aspirin or narcotics.

Dr. Pirrung testified that prior to about 1953 all medical schools were taught to do uterine suspensions, and that only late graduates, those since about 1953 have been discouraged in doing them and that he believes in other methods. So, it would be just as reasonable for us to say that in an OB-Gyn case Dr. Pirrung would be an incompetent witness against another M.D. who was educated before 1953, merely because his individual opinion reflects the recent developments in the profession, as it would be for us to say the medical doctors were incompetent to give testimony against the osteopaths in this case. We believe such theory would be, as Chief Justice Calvert has said, unrealistic, would not comport with good reasoning and settled rules of evidence and would do violence to the doctrine announced in Porter v. Puryear, supra, if we should hold from this record that the medical doctors were incompetent witnesses in the evidence they gave against the osteopathic doctors. We accordingly hold they were competent witnesses to give expert opinions such as they gave in this case.

What we have already said disposes of many of the 26 points raised but we shall attempt to discuss, in groups as far as possible, those points where subjects ancillary to the question already discussed have been raised.

In points 1 and 2 reversible error is urged to an answer by Dr. Pirrung allegedly not responsive to the question and which depended upon hearsay. He was asked if the theory behind a uterine suspension and the reasons why it is done is that it is something that is taught in a normal 4 year course of any medical student, to which he answered: “We are taught not to do it.”

We find no reversible error in these two points. In the first place there is testimony of similar meaning in the record contained in the statements of Dr. Pirrung to the effect that late graduates are discouraged in doing such suspensions. Additionally, he was testifying as an expert, and what he was taught goes to the very basis for qualifying him as an expert. Like most experts, the competency of his testimony as an expert would be dependent upon his instructions and training, and therefore not subject to the hearsay rule. Further, we believe it was unnecessary for him to be a specialist in OB-Gyn in order to testify as an expert in this case. It has been textually stated that “ * * * in the case of doctors, the courts do not require that they be specialist in the particular branch of the profession concerning which they are called upon to testify. This knowledge may be obtained entirely from a study of technical works * * * ” In any event the points do not show reversible error under rule 434, Vernon’s Ann.Texas Rules of Civil Procedure.

We certainly could not say in considering the record as a whole that such testimony was reasonably calculated to cause and probably did cause the rendition of an improper verdict. Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682, 687. The points are overruled, as are points 3, 8, and 9 going to the competency of the medical doctors to testify against the osteopaths. The latter points are disposed of in what we said prior to a discussion of the first two points.

The 4th point asserts error in permitting Dr. Pirrung to testify “a uterine suspension is not compatible with future pregnancies.” The record contradicts the statement in the point. The doctor’s testimony as a whole cannot be so construed. He testified that a uterine suspension performed by a- shortening of the ligaments would be compatible with future pregnancies. He testified in effect that the type operation performed by appellants was not compatible with future pregnancies. He said objective symptoms showed that something had been sewed to the abdominal wall. “That is correct,” he testified in answer to the question: “Something had caused the uteris to be firmly fixed to the front of the stomach wall?” Accordingly, the point is overruled.

The 5th point claims error in permitting the medical doctors to testify that sewing the uterus to the stomach wall would not be compatible with future pregnancies because the witnesses assumed facts not in evidence. The testimony quoted in point 4 and other testimony of similar import require the overruling of this point.

The 6th point is. overruled wherein error is asserted in Dr, Pirrung’s testimony ta the effect thp.t it was possible to correct the position of the uterus without surgery. Inquiry was made to the jury as to the negligence of the osteopaths in performing the operation. Testimony that the uterus could have been corrected without surgery would at least go to the weight of the testimony as to whether there was negligence in what was done. This is particularly true in view of the fact that the surgery was admitted as having been elective rather than an emergency.

What we have said in a discussion of other points makes it unnecessary to write upon points 7, 8, and 9.

Point 10 contends there was an invasion of the province of the jury in permitting Dr. Campbell to testify in effect that the operation should not have been performed. His answer was simply the response of an expert to a material hypothetical question. Our Supreme Court has said: “When the issue is one upon which the witness may properly state his opinion, he may do so, notwithstanding his answer embraces the very issue on trial.” Scalf v. Collin County, 80 Tex. 514, 16 S.W. 314, 315. See also Federal Underwriters Exchange v. Cost, 132 Tex. 299, 123 S.W.2d 332, 335; 31 Texas Law Review 731, “Invasion of the Province of the Jury”, by Justice Norvell.

Point 11 asserts error in the testimony by Dr. Campbell to the effect that the adhesions resulted from the prior operation and because it was hearsay and there was no evidence that it had been sewed to the stomach wall. As previously shown there was evidence that the organ had been fixed to the abdominal wall. We believe the record is not clear that such testimony was based upon hearsay, but in any event it would come under the harmless error doctrine of Rule 434, V.A.T.R. •

Appellants’ 12th ■ point asserted er-ror by permitting Drs. Pirrung. and Camp-bell -to give their testimony before the fil-ing of the trial amendment upon which the case was tried. If there were insufficient pleadings upon which their testimony was admitted any error was corrected when the trial amendment was filed. The very reason for a trial amendment in pleadings is to correct the pleadings. Otherwise, such amendments would serve no purpose. If the previous testimony would have been admissible after the amended pleadings were filed there certainly would have been no reversible error in permitting the testimony to stay in the record. The point is overruled, as is the 13th point of the same tenor.

Appellant’s 14th point contends error in overruling one of their special exceptions, which was cured by the trial, amendment just discussed. Even if it should be said that the pleadings were insufficient for appellant to prepare their defenses there still is nothing before us for appellate review. The trial amendment corrected the pleadings, if they needed correcting, and after the amendment was filed they waived any surprise by agreeing to proceed with the trial.

The 15th through the 26th points raise questions of no evidence and the general sufficiency, or great weight and preponderance of the evidence to sustain the verdict. It therefore becomes necessary for this court to weigh and consider that which supports the verdict and that which does not and .to set aside the judgment and remand the case if after such consideration, we conclude the verdict is" so contrary to the overwhelming weight of all the evidence as to be manifestly unjust regardless of whether there is some evidence to support it. In re King’s Estate (King v. King et al.), 150 Tex. 662, 244 S.W.2d 660; Purvis v. Morehead, Tex.Civ.App., 304 S.W.2d 221; Chantly v. Chrystal, Tex.Civ.App., 274 S.W.2d 765.

After carefully weighing the evidence which supports the verdict as against all the evidence to the contrary, it is our studied opinion that the jury verdict is not so contrary to the- overwhelming weight of all the evidence as to be'clearly wrong and unjust, but that there was an abundance of evidence of probative value to support the jury verdict and the judgment of the trial court.

Dr. Spivey admitted that in the average retroverted uterus, “we do not do surgery on them for that unless the pain is so acute that a patient cannot go ahead * * * ” There is no evidence that such character of pain existed in this case before the suspension.

He also admitted he recommended the surgery subject to the frog test and that he would not have proceeded with it had such test been positive.. He said in effect that they tried to give the patient all the relief possible in such a case with the least amount of trauma to avoid miscarriage or any other complication of pregnancy and that Te-Linde, who is a recognized authority, recommends against suspension in a case of pregnancy and suggests the uterus should be put in position and held there by pessary until the first trimester of pregnancy is passed. (Emphasis ours.)

Dr. Campbell, the professor and specialist testified it is never proper to perform a-suspension operation upon a pregnant woman and that when they discovered she was pregnant they should have closed the abdomen.. The osteopaths claimed they did a Modified Gilliam suspension. Such operation involves sutures to the round ligaments . of the- uterus and Dr. Campbell, found no evidence involving such ligaments...

The dimple in the abdomen was attributed to the suspension by the testimony of Dr. Pirrung, who also testified: “Something had been sewed to the abdominal wall,” a procedure which he said was incompatible with pregnancy.

Appellants urge the lack of showing of proximate cause in this series of issues. It is true, the record shows adhesions may be caused from ány operation. However, there is probative evidence from which the jury could have concluded that the operation moved the uterus away from its retroverted position against the rectum toward the front of the abdomen and that regardless of which type suspension was performed the operation either attached it to the abdominal wall or placed it in such proximity to the incision as to cause it to adhere thereto. Appellants should have foreseen such results.

Our Supreme Court in Port Terminal Railroad Association v. Ross, 155 Tex. 447, 289 S.W.2d 220, 224 has said:

“It has also been pointed out repeatedly that for the defendant’s negligence to be regarded as a proximate cause of the plaintiff’s injury, it is not necessary that the exact nature of the injury or the precise manner of its infliction should reasonably have been foreseen. It is sufficient that the defendant should reasonably have anticipated consequences or an injury of the general nature of that which ensued.”

Appellant Welch did not testify personally in the case, though excerpts from his deposition were introduced. Of course Dr. Spivey denied that the operation was the cause of any suffering on the part of Mrs. Shaver, but when appellee’s testimony is weighed alongside the testimony offered by appellants and their witnesses we find in considering all the evidence that it does not preponderate against the verdict.

As in all cases that are contested some of the evidence was conflicting, but “it must be borne in mind that it was the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony. It was their province also to resolve conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses.” Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 563.

What we have said concerning the great weight and preponderance of the evidence makes it unnecessary for us to write upon the no evidence point raised.

Accordingly, the judgment of the trial court ⅛> affirmed.

      . Porter et al. v. Puryear, 153 Tex. 82, 262 S.W.2d 933, 936.

      . Miles v. Meadows, 309 S.W.2d 284-287 (N.W.H.)

      .Doctors Pritchard and Ware are practitioners of the medical school of practice.

      . Dr. TeLinde is Professor of Gynecology at Johns Hopkins University.

      . OB-Gyn as used herein denotes obstetrics and gynecology.

      . Texas Law of Evidence McCormick and Ray, 2d See. 1'401'p. 236.