author: COLEMAN, Justice.

text:
    Ronnie DUDLEY et al., Appellants, v. Gene Anthony WHATLEY et al., Appellees.
    No. 14676.
    Court of Civil Appeals of Texas. Houston.
    March 3, 1966.
    Rehearing Denied March 24, 1966.

      Max H. Jennings, Clawson, Jennings & Clawson, R. Philip Schulze, Houston, for appellants.
    James F. Bobbitt, Bobbitt & Kraft, Houston, Thad W. Davis, Freeport, Raymond L. McDermott and Mabel Grey Howell, Houston, for appellees.
   COLEMAN, Justice.

This is a suit to recover damages by reason of personal injuries sustained in an automobile accident. The principal points to be discussed concern claimed errors on the part of the trial court (1) in refusing requested special issues as to proper look-out on the part of appellee Whatley, who was a passenger in his own automobile; and (2) in wording certain special issues submitted in such manner as to constitute a comment on the weight of the evidence.

Prior to the collision from which this suit arose, appellee Fregia was driving ap-pellee Whatley’s new automobile on Highway 288 from Freeport toward Angleton. Whatley was riding in the front seat and Thompson in the back seat. The highway is a four-lane concrete highway with asphalt shoulders divided by an esplanade. At the point where County Road 220 intersects the highway from the west, there is a break in the esplanade through which vehicles may enter the northbound lanes of the highway.

On Sunday, July 9, 1962, as appellees were south of and nearing this intersection at a time between 7:00 and 7:40 p. m., appellant Ronnie Dudley, according to his testimony, approached this intersection on the county road and stopped. He checked the traffic, saw the Whatley car 650 to 700 feet south of the intersection, and then drove across the southbound lanes of the highway. He then crossed the break in the esplanade, looked south and saw the Whatley car 400 to 500 feet away, and turned north into the inside northbound lane. After he had proceeded about 200 to 250 feet without again looking at the Whatley car, he was struck from the rear. There is testimony that the force of the collision was such that Dudley struck the steering wheel; his glasses were thrown onto the ledge in the back of his car; the locked trunk on his automobile opened and the bolted spare tire therein was torn loose and was found in a field on the western side of the highway; the automobile was badly damaged across the rear, especially on the left; the frame was bent down over the rear wheels and was buckled.

Appellees testified that they were proceeding in the outside lane of the highway at a speed of 55 to 60 miles per hour as the car approached the intersection. Ap-pellees and Thompson testified that they saw Dudley as he entered the intersection. He was driving 10 to 15 miles per hour and turned into the outside lane when they were 150 to 200 feet south of the intersection in that same lane. They testified that Fregia then turned into the inside lane to pass Dudley, and as they were about to pass Dudley turned left into the inside lane in front of them.

There was a difference of opinion among the witnesses as to the length of the skid marks made by the Whatley car, and the exact point of collision. There was agreement that the collision occurred more than 50 feet north of the intersection in the inside lane and that the Whatley car laid down more than 95 feet of heavy skid marks, beginning about the middle of the intersection, all in the inside lane.

Based on jury findings of negligence on the part of Dudley and no contributory negligence, the court entered judgment in favor of Whatley for his damages. There was a stipulation that all negligent acts on the part of the driver, Fregia, would be imputed to the owner, Whatley.

Appellants requested the trial court to submit Special Issue “A” worded as follows;

“Do you find from a preponderance of the evidence that just before and at the time of the accident in question Gene Whatley failed to keep such a lookout for vehicles on the highway ahead of his vehicle as would have been kept by a person of ordinary prudence, in the exercise of ordinary care, under the same or similar circumstances ?”

Ordinarily a passenger, not .being in charge of the operation of the automobile, is not required constantly to keep a lookout. He may rely on the driver to keep watch unless he knows from past experience or from the manner in which the car is being driven on the particular trip, that the driver is likely to be inattentive or careless. In addition if the passenger knows that a particular point there will be a peculiar danger, which he has no reason to believe that the driver, if unaided, will perceive, he may be guilty of negligence, if he does not keep himself in a position to call the danger to the attention of the driver. Edmiston v. Texas & N. O. R. Co., Com.App.1940, 135 Tex. 67, 138 S.W.2d 526, opinion adopted; Schumacher Co. v. Shooter, Com.App.1939, 132 Tex. 560, 124 S.W.2d 857, opinion adopted.

There was no such exceptional circumstance shown as would raise a duty on the part of Whatley to keep a lookout. There is no evidence that Fregia was not a competent driver, or was handicapped in any manner. The car was being driven on a wide, straight highway on a clear, dry day. No other cars were in the vicinity. While an inference of excessive speed might have been drawn from the evidence, and there was opinion testimony that the Whatley car was being driven from 60 to 75 miles per hour, Whatley testified to a speed of 50 to 55 miles per hour. While a jury was not required to accept this testimony, there was no other testimony from which it could be determined that Whatley knew the speed of the automobile.

In the Edmiston case, supra, the court approved as a correct declaration of the law a quotation from the Restatement of the Law of Torts (Vol. 2, pp. 1282, 1283, section 495) in which this statement appears:

“ ‘So too, the plaintiff is not required to keep his eyes constantly on the speedometer to see whether the driver is exceeding' the legal speed limit. He is required to call the attention of the driver to his excessive speed only when the speed is so great that a reasonable man would realize its excessive character.’ ”

An inference of improper lookout on the part of a passenger cannot be drawn from the fact of a collision. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195; Schumacher Co. v. Shooter, Com. App.1939, 132 Tex. 560, 124 S.W.2d 857, opinion adopted.

Taking into account Ronnie Dudley’s testimony that the Whatley car was 650 to 700 feet from the intersection when he first looked south and only 400 to 500 feet from the intersection when he pulled into the southbound lanes, and considering the number of feet a car would travel at a speed between 50 and 70 miles per hour, the slow speed of the Dudley car, it is apparent that not more than five or six seconds could have elapsed from the time that danger might have been anticipated and the time Fregia applied the brakes on the car he was driving. Under the existing conditions and circumstances, there is no evidence of probative force that Whatley failed to keep the lookout required of a passenger in a motor vehicle.

Appellants complain of the language by which Special Issues 19 through 24 were submitted since it reveals that the trial court necessarily assumed Dudley was traveling in the outside northbound lane of Highway 288 after he entered this highway. The position of the Dudley car on the highway was a controverted issue of fact. Appellant objected to the charge on the ground that the issue as proposed constituted a comment on the weight of the evidence.

Special Issue No. 19 reads:

“Do you find from a preponderance of the evidence that just before the collision Ronnie Dudley turned the Comet automobile from a direct course or moved left upon the roadway of Highway 288?”

Appellees contend that the points of error complaining of these issues have not been preserved properly since the assignments of error in appellants’ motion for new trial pertinent to each of these issues are identical (with the exception of the number of the issue) and read:

“The trial court erred in overruling Plaintiff’s and Cross-Defendants’ exceptions and objections to Special Issue No. 19.” Appellees point out that since a number of objections were made to each of the issues, the assignment is legally insufficient to justify the consideration of a point of error based thereon.

There was not such substantial compliance with Rules 320, 321 and 322, Texas Rules of Civil Procedure, as to justify the consideration of these points by this Court. The matter claimed to constitute error was not distinctly pointed out to the trial court. Rule 374, T.R.C.P., provides that a ground of error not distinctly set forth in the motion for new trial shall be considered as waived. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887.

Even if we should consider that the trial court erred in improperly commenting on the evidence in assuming that the Dudley car entered Highway 288 in the outside northbound lane, the error would not require reversal. The jury found that Ronnie Dudley failed to keep a proper lookout, which was a proximate cause of the collision, and also that he failed to yield the right-of-way, which was a proximate cause of the collision. In view of the instructions given in the charge by the trial court, this was a finding that Ronnie Dudley entered Highway 288 at a time when another vehicle was approaching the intersection so closely on said highway as to constitute an immediate hazard. It does not appear that an improper comment by the trial court on the position of the Dudley car after it had entered the intersection and had made the turn, would be calculated to affect the answer made by the jury to the issues on lookout or right-of-way. The error, if any, is harmless since the judgment is supported by the answers made by the jury to these special issues convicting Ronnie Dudley of negligence constituting a proximate cause of the collision, and no points of error are presently attacking these issues. Galveston, H. & S. A. Ry. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247; Brakefield v. Anderson, Tex.Civ.App., 1965, 394 S.W.2d 529.

Appellants’ final points of error are concerned with the sufficiency of the evidence to support the $25,000.00 award for past and future physical pain, past and future mental anguish, loss of earnings and physical impairment from July 9, 1962 to the date of trial (February 22, 1965) and reasonable present cash value of such loss of earning capacity and physical impairment which Whatley will in reasonable probability sustain in the future. The jury found $82.50 medical expense to the date of trial and $1,100.00 future medical expense.

Whatley was 29 years of age at the time of the trial. He testified that he was in a dazed condition immediately after the collision and had pain in his neck. He was employed by Dow Chemical Company at the time of the accident and continued in their employ until either February or March, 1964, when he resigned after having been given the option of resigning or being fired. This action was taken because of the injuries received in the collision. Prior to resigning he had lost a total of about two weeks’ work aside from his sick leave and had lost $1,400.00 to $1,600.00 because of his inability to do overtime work. After the accident he did light duty work training men for his department. Prior to his employment for Dow he had worked for an uncle, who was a contractor, but he did heavy work. Since leaving Dow he has moved to Alabama and is doing contracting, but he only gets jobs and then obtains sub-contracts. He does not do heavy work. During the month before the trial he made $200.00. In 1962 he made $9,800.00, and in 1963, $8,300.00.

He testified to pain in his neck and numbness in an arm, which was intermittent. He used a neck brace and a traction device. He was treated by Dr. Baker, a chiropractor, Dr. Gaulke, Dr. Greenwood, and Dr. Zieman. There was no medical testimony offered by appellants concerning Mr. Whatley’s condition. Only Dr. Baker testified at the trial. He found nerve impingement in the cervical spine and that the first and fifth cervical vertebra had slipped out of their normal positions. It was his opinion that Mr. Whatley had a permanent disability of from 20 to 30 per cent, and that the type of work he could do would be limited because he could not do heavy work. He expected that Mr. Whatley would have pain in the neck and shoulder from time to time. Considering all of the testimony, we are unable to say that the verdict of the jury was contrary to the weight and preponderance of the evidence, or that the judgment based thereon is excessive.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: RENFRO, Justice. MASSEY, Chief Justice.

license: Public Domain

text:
    COMMERCIAL STANDARD INSURANCE COMPANY, Appellant, v. Leroy H. ALLRED, Appellee.
    No. 16698.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 11, 1966.
    Rehearing Denied March 11, 1966.
    Buck & Buck, Robert Clines, Brown, Day & Crowley, and M. Hendricks Brown, Fort Worth, for appellant.
    Schulz & Hanna, Yates & Yates, and Jack M. Yates, Abilene, for appellee.
   RENFRO, Justice.

This is a workmen’s compensation case.

Based upon a verdict, judgment for total and permanent disability was entered for plaintiff. Plaintiff’s petition alleged he was injured as a result of heat exhaustion suffered on April 9, 1963.

Defendant contended plaintiff’s disability was due solely to high blood pressure and hypertension.

The evidence bearing on the question as to whether or not plaintiff suffered heat exhaustion was strongly controversial.

Issue No. 1 read: “Do you find from a preponderance of the evidence that Leroy Allred sustained an injury to his body as the result of heat exhaustion on or about April 9, 1963 ?”

It is defendant’s contention, in point nine, the court erred in submitting Special Issue No. 1 over the defendant’s objections for the reason that the issue was duplicitous, inquiring first if plaintiff sustained an injury, and secondly whether he had heat exhaustion, or if the injury was the result of heat exhaustion, the defendant having particularly pointed out to the court that the subject matter of such Special Issue No. 1 should have been submitted in two separate issues in compliance with Rule 277, Texas Rules of Civ.Procedure, and for the further reason that such submission assumed that plaintiff had sustained a heat exhaustion without separately submitting the issue to the jury and/or assumed that the plaintiff had sustained an injury, and such manner of submission amounted to a comment on the evidence by the court.

In Johnson v. Zurich General Accident & Liability Ins. Co., 146 Tex. 232, 205 S.W.2d 353 (1947), the court had under consideration the following issue: “Do you find from a preponderance of the evidence in this case that the injury, if any you have found, was sustained by R. M. Johnson because of heat exhaustion experienced on or about July 18, 1945 ?”

The court held: “Two contested issues of fact were covered by this special issue as given, one was whether or not petitioner suffered heat exhaustion on the date mentioned and the other was whether or not his injuries resulted therefrom. The issue as framed assumes that he experienced heat exhaustion and calls upon the jury to answer the single question of whether petitioner’s injuries, if any, resulted from heat exhaustion which he experienced on that day. The objection clearly pointed out the vice in the issue, and by overruling it the respondent was deprived of the right granted him by Rule 277 to have each issue of fact submitted separately. Texas Power & Light Co. v. Culwell, Tex.Com.App., 34 S.W.2d 820; Texas Employers’ [Ins.] Ass’n v. Humphrey, Tex.Civ.App., 140 S.W.2d 313 (Error refused).”

The issues in Johnson and the instant case are so nearly identical that we can see no material distinction.

Plaintiff relies on Eubanks v. Texas Employers’ Ins. Ass’n, 151 Tex. 67, 246 S.W.2d 467 (1952). In Eubanks the issue read: “Do you find from a preponderance of the evidence that J. L. Eubanks sustained personal injuries during the first two weeks of January, 1945, as a result of being struck a blow on his head by a piece of timber?” It was held under the facts (that plaintiff was struck on the head was not disputed) the reference to the blow on the head in the issue were merely words descriptive of the manner of the injury.

In its opinion in Eubanks the court had an opportunity to alter or overrule its decision in Johnson. It did not see fit to do so. On the contrary it approved its former decision in the Johnson case as follows : “The obj ection to the issue, discussed and sustained by the opinion of this Court, was that the issue was ‘on the weight of the evidence in that it assumes that R. M. Johnson became overheated or suffered heat exhaustion on or about July 18, 1945.’ The opinion points out that the question whether or not the plaintiff suffered heat exhaustion was a contested issue of fact, and construes the issue as assuming that the plaintiff experienced heat exhaustion. In that case the issue, held subject to the objection made, assumed as a fact, by the use of the words ‘heat exhaustion experienced’, that the plaintiff sustained the injury upon which he relied. There is not a great difference between the manner in which the issue in the Johnson case was framed and the manner in which the issue in this case is framed, but there is a difference.”

Thus, the decision in Johnson is still the law and in our opinion compels a reversal in this case.

In points one through four defendant contends there was no evidence to support the jury’s findings plaintiff sustained an injury as a result of heat exhaustion, that plaintiff was subjected to a greater hazard of heat exhaustion than applied to the general public, that plaintiff sustained total and permanent disability, and in point five that it should have been granted an instructed verdict.

Our study of the record shows sufficient evidence of probative value to support the findings. Since we are reversing the case for a -new trial, we forego discussion of the evidence.

In point eight defendant urges us to hold the jury’s answer that plaintiff’s disability was not caused solely by hypertension, not connected with the occurrence of April 9, to be against the great preponderance of the evidence. The point is overruled.

Points six and seven are based on rulings concerning admissibility of testimony. Since the same matters are not likely to arise on another trial, no disposition is made of points six and seven.

Judgment reversed and cause remanded for a new trial.

Reversed and remanded.

ON MOTION FOR REHEARING

MASSEY, Chief Justice.

We are cited to Texas Employers’ Insurance Ass’n v. Rowell, 104 S.W.2d 613 (Eastland Civ.App.1937, no writ) the material special issue in which the plaintiff states was expressly approved in Eubanks v. Texas Employers’ Insurance Ass’n, 151 Tex. 67, 246 S.W.2d 467 (1952). In the Rowell case the special issue, which was approved, read as follows: “Do you find from a preponderance of the evidence that the plaintiff, H. Rowell, on or about the 10th day of August, 1934, sustained an injury as .that term is herein defined, as a result of a heat exhaustion or sunstroke ?”

We are in accord with the Rowell case opinion in which it was held that the issue was not subject to the objection that it was on the weight of the evidence as assuming that the plaintiff had suffered an attack of heat exhaustion or sunstroke, a matter in dispute. We are also in accord with its holding that the words of the special issue “as a result of a heat exhaustion or sunstroke” are words used in limitation, description or modification of the issue. In other words we agree that the words in the issue imposed a more onerous burden upon Rowell than is the usual requirement of law rather than to lessen the burden he was obliged to carry as the result of constituting a comment on the weight of the evidence on the part of the court in an indication that there actually had been a heat exhaustion or sunstroke.

The test to be made in each case is whether the language which is contended to be duplicitous or multifarious is, under the circumstances, a limitation, description or modification of the question made an issue to be resolved by the jury’s answer. In the instant case we see no difference in the issue submitted than would have been the case if it had read: “Do you find from a preponderance of the evidence that Leroy Allred sustained an injury to his body as the result of the heat exhaustion which oc-cured on or about April 9 1963?” (Emphasis supplied to words interpolated and added.)

If we are correct in this it is obvious that the charge was on the weight of the evidence, since the language of the issue would be duplicitous or multifarious as not a limitation, description or modification of the issue upon heat exhaustion (an injury in itself). We believe the words inserted, emphasized by italics, were the kind of words interpolated into the issue which was condemned in Johnson v. Zurich General Accident & Liability Ins. Co., 146 Tex. 232, 205 S.W.2d 353 (Tex.Sup.,1947), an opinion which came ten years after that in Rowell and of which the Supreme Court was cognizant at the time of Eubanks. If we are correct in this we are correct in the decision we have made in this case.

Motions for Rehearing are overruled.


author: CHAPMAN, Justice.

text:
    Ralph E. TUNNELL et ux., Appellants, v. OTIS ELEVATOR COMPANY et al., Appellees.
    No. 7451.
    Court of Civil Appeals of Texas. Amarillo.
    March 22, 1965.
    Rehearing Denied March 21, 1966.

      Huff & Bowers, Lubbock, for appellants.
    Crenshaw, Dupree & Milam, Evans, Pharr, Trout & Jones, Lubbock, for ap-pellees.
   CHAPMAN, Justice.

This is an appeal by Ralph E. Tunnell and wife, Myrtle L. Tunnell, from a summary judgment granted the Northwest Texas Conference of the Methodist Episcopal Church and from a judgment in a case tried to the jury and after the evidence was completed withdrawn from the jury and the judgment rendered by the court for Otis Elevator for the reason that “the facts and law, are with Otis Elevator Company.” The defendants were sued jointly by the Tunnells, who alleged personal injury to Mrs. Tunnell in an Otis manufactured automatic operating elevator being operated as equipment in the Methodist Medical Building. The summary judgment and the judgment for the elevator company were rendered as one Final Judgment for the defendants below and against the Tunnells.

The Tunnells will be referred to hereafter as Tunnell or appellant, Otis Elevator Company as Otis, and the Methodist Medical Building as Methodist, the record showing it is owned by the Northwest Texas Conference of the Methodist Episcopal Church.

Methodist insists a summary judgment was rendered for them on November 4, 1963; that it constitutes a final judgment from which no appeal was perfected and that this appeal as to them should be dismissed.

From our view of the case as a whole, the question on the motion to dismiss becomes immaterial and would only unnecessarily extend this opinion to write on the question.

The first attack made on the judgment summarily rendered is that the trial court erred in applying the charitable immunity doctrine.

The record shows Methodist Hospital in Lubbock is operated by a board of trustees duly elected at and by the Annual Conference of the Northwest Texas Conference of Methodist Episcopal Church, which owns both the Methodist Hospital and the Methodist Building; that both are operated and managed by such board, the administration of which hospital and building are under one administrator. Though operated as an adjunct of the hospital and the accounting kept separate from that of the hospital, it still is uncontradicted in the record that it is a non-profit operation of the named church and that if any profit is ever made it will, according to the deposition of the accountant for the institution, “go into the repair and replacement of facilities and equipment of either that building or the hospital.”

It is also true that offices in the Methodist Building are rented to doctors on the staff of the hospital, but the deposition shows it is “strictly a functional design that is geared for clinic operation” that such tenants facilitate the hospital operation in that the offices of the doctors are directly connected with hospital floors. The deposition of the hospital accountant shows that plans are projected for hospital facilities in the Methodist Building itself and at that time and at all times “We try to have located in that building those people which facilitate our hospital operation.”

The motion for summary judgment alleged: “That as a charitable entity owned and operated by the Northwest Texas Conference of the Methodist Episcopal Church, and operated in conjunction with the Methodist Hospital, said building and religious organization and association are entitled to immunity from any claims asserted herein for plaintiffs.”

Appellants cite authorities from other jurisdictions to justify their contention that the Texas position on charitable immunity is an erroneous position and cites some cases from this State with facts not analogous to our own. They admit this court has neither power nor authority to overrule and restate a proposition of law previously announced by our Supreme Court and then urges this court in effect to announce “an enlightened and critical opinion” seeking to influence the Supreme Court on the proposition that the charitable immunity doctrine is outmoded. They then state that the State Supreme Court alone has the power to set aside and repudiate the doctrine. We would agree that either that court or the legislature has such power and not an intermediate appellate court.

Our position on the charitable immunity doctrine was announced recently in Watkins v. Southcrest Baptist Church, Tex., 399 S.W.2d 530. We admitted in effect that some opinions from other jurisdictions argue strongly against the doctrine but followed, as we still feel bound to do, our own Supreme Court.

The case relied on so strongly by appellant as to what the rule of law should be in Texas was taken note of by our Supreme Court in Southern Methodist University v. Clayton, 142 Tex. 179, 176 S.W.2d 749, in discussing the divergence of opinion in our several American jurisdictions, the court saying:

“Some extend absolute immunity, others recognize a limited liability, while a few hold to the doctrine of respondeat superior.”
The court then held:
“We must agree, therefore, with the holding of the Supreme Court of South Carolina in the Vermillion case, supra, that no liability exists. As said in that case, ‘This rule does not put such charities above the law, for their conduct is subject to the supervision of the court of equity; nor does it deny an injured person a remedy for his wrong. It is merely an exception to the rule of respondeat superior, which is itself based on reasons of public policy. The injured person has his remedy against the actual wrongdoer. It is said, however, that he may be and often is financially irresponsible. But the answer is that the law does not undertake to provide a solvent defendant for every wrong done. There are many cases of wrongful injury not compensated, because the wrongdoer is insolvent. * * * Questions of public policies must be determined upon consideration of what on the whole will best promote the general welfare.’
“Therefore, we think sound public policy-demands that charity corporations be held immune from liability for the torts of their agents, in the absence of negligence in employing or keeping the latter, whether the injured party be a beneficiary of the trust or a stranger to it, since the result to the charity would be the same in either case.”

There is no pleading by appellant nor any point presented upon appeal which asserts negligence of Methodist in employing Mr. Fewell, their employee who caused the action of the elevator upon the occasion in question and from which appellants assert Mrs. Tunnell received her injuries. Therefore, that question was not before the trial court in its consideration of the summary judgment.

Appellant contends that the rule in Southern Methodist University v. Clayton, supra, was not intended to be applicable in a case such as this one because Methodist in this case carried public liability insurance. In Baptist Memorial Hospital v. McTighe, Tex.Civ.App., 303 S.W.2d 446 (N.R.E.), the Baptist Memorial Hospital carried indemnity insurance against injuries similar to the one in the instant case.

The El Paso Court of Civil Appeals in the case just cited said:

“The appellee caused to be introduced in the absence of the jury, an indemnity insurance policy purporting to protect the defendant from having to pay damages for an accident such as this. We have not found any authority in Texas (although some other courts have made the distinction) where the presence of an insurance policy caused any change in the liability or immunity of a charity institution. We do not feel that there is any escape from the holding and implication of the Clayton case, and we must hold that it is decisive of the case on appeal here. Southern Methodist University v. Clayton, supra; Vermillion v. Woman’s College of Due West, supra; * *

Though eleven points were raised by appellant in Baptist Memorial Hospital v. Mc-Tighe, supra, the El Paso Court wrote on only one of them; i. e., if recovery could be had against a charitable organization which carried indemnity insurance as in the instant case. The stamp of N.R.E. by the Supreme Court in that case indicates to us that the court is still adhering to the rules announced in Southern Methodist University v. Clayton, supra, and Vermillion v. Woman’s College of Due West, supra, even though a charitable institution carries insurance indemnifying against accidents and resultant injuries such as those in the Mc-Tighe case and the instant case.

Therefore, under the record before us, we feel we are compelled to sustain that part of the final judgment which summarily rendered a take-nothing judgment against appellants’ suit as against Methodist.

We now pass to the question of liability of Otis on the “borrowed servant” doctrine.

As previously stated, the court withdrew the case from the jury and rendered judgment for Otis for the reason that ‘hhe facts and law, are with Otis Elevator Company.”

“When questions of law only are involved, a trial court may at the conclusion of the hearing of the evidence take the case from the jury and proceed to render judgment. This may be done on the court’s own motion and this power is in no way dependent upon a motion having been filed by a party litigant.” Harvey v. Elder, Tex.Civ.App., 191 S.W.2d 686 (writ refused). The trial court having so disposed of the suit against Otis, we must view the evidence in the light most favorable to the losing party, indulging against the instruction every inference that may be properly drawn from the evidence. Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148.

On the occasion of the alleged Tunnell injury Mr. Fewell was working at Methodist Hospital as Chief Engineer. Mr. Christen-son was resident mechanic in Lubbock for Otis, which was under contract with Methodist for servicing their Otis Elevators.

On the date of the alleged injury Methodist had an incinerator for burning refuse with a shaft which went up beside the equipment room in the Methodist Building. A crack had developed in the wall of the equipment room which allowed ashes from the incinerator shaft to escape into such; room. About one-fourth of the room was devoted to elevator equipment and about a three-fourths to the other hospital equipment. Mr. Christenson, having observed the crack, asked Mr. Fewell to have the hospital repair it so as to keep the dust and ashes out of the equipment room. Mr. Fewell assured Mr. Christenson the hospital would fix the crack but did not say when. Mr. Christenson then said, “We’d better get this mess cleaned up,” and he picked up a broom and started sweeping. Mr. Few-ell picked up a paint brush and started to dust the equipment. In doing so he put the brush in or near the governor sheave of the automatic Otis Elevator then not moving. At that time Mrs. Tunnell on the way from a doctor’s office in the Methodist Medical Building pressed the button to start the elevator down. The paint brush caught the governor, stopping the elevator suddenly. Mrs. Tunnell’s injuries are alleged to have been caused by the action of the elevator, which she testified threw her around violently.

From this fact situation appellants urge that Otis had borrowed Mr. Fewell to assist in work having to do with the elevator operation and under the “borrowed servant” doctrine Otis was liable to appellants for Mrs. Tunnell’s injuries proximately resulting from Mr. Fewell having placed the brush in the governor of the elevator, thus causing it to stop suddenly. The court having taken the case from the jury and rendered judgment without any submissions to the jury, the specific contention of appellants is that the court erred in holding as a matter of law that Fewell was not a borrowed servant of Otis.

We hold there was not any probative evidence to justify a submission to the jury of any issues on the “borrowed servant” doctrine and that the trial court was correct in so holding.

The testimony of Mr. Scherffius, Chris-tenson’s superior, reveals that Otis had extended Christenson no authority to secure help on any job for it except those instances requiring more than one man, such as re-cabling an elevator, and then only after specific arrangements with Methodist. The record shows Christenson had requested Fewell’s presence on the occasion in question only to point out the defect in the wall of the Medical Building belonging to the Hospital, which they agreed to repair.

Mr. Fewell testified, in effect, that on the occasion in question Mr. Christenson did not issue him any instructions and that he was free to -go or stay as he pleased.

Thus, the only testimony that would even raise a surmise or scintilla of evidence to justify the “borrowed servant” doctrine was the testimony that “We’d better get this mess cleaned up.”

Inasmuch as Fewell was a general employee of Methodist, it was the burden of appellants to introduce some probative evidence showing, or from which it could reasonably be inferred, that on the occasion in question Fewell had entered on a special employment for Otis. Producers Chemical Company v. McKay, Tex., 366 S.W.2d 220.

“Solution of the question rests in right of control of the manner in which the employees performed the services necessary to accomplishment of their ultimate obligation.” Producers Chemical Company v. McKay, supra.

The record is without contradiction that Christenson had no right of control over Fewell at the time the latter placed the brush in the governor of the elevator.

Whether the relation of master and servant existed between Christenson and Fewell at the time in question so as to make the doctrine of respondeat superior applicable depended upon whether Christenson had the right to control Fewell in the detail of the work to be performed in cleaning up the ashes and soot. Texas Co. v. Wheat, 140 Tex. 468, 168 S.W.2d 632; Hilgenberg v. Elam, 145 Tex. 347, 198 S.W.2d 94; Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195 (Comm.App. opinion adopted). The record is uncontradicted that he had no such authority.

Accordingly, the judgment of the trial court is in all things affirmed.

ON MOTION FOR REHEARING

The original opinion herein was announced on March 22, 1965. On April 7, 1965, the Supreme Court of Texas granted a writ in our case of Watkins v. Southcrest Baptist Church, Tex.Civ.App., 385 S.W.2d 723. A motion for rehearing was filed in the instant case on April 12, 1965. Since the exact same question of charitable immunity was involved and that legal question would admittedly control the case so far as appellant, Northwest Texas Conference of the Methodist Episcopal Church, is concerned, this court concluded it was proper not to pass on the motion for rehearing pending in our court until the Supreme Court made a final disposition of the South-crest Baptist Church case. Their opinion was delivered on January 5, 1966, by a divided court, affirming this court, and is reported in Vol. 9, Texas Supreme Court Journal, beginning at Page 176. A motion for rehearing was refused on March 9, 1966.

Justice Norvell authored the majority opinion and was joined by four other justices without comment. Justice Walker concurred hut announced that as to him “ * * * the doctrine of charitable immunity will not be recognized in cases hereafter arising(All emphases ours.)

Justice Greenhill concurred in the majority opinion but warned all people and institutions relying on the established precedent that the doctrine should be re-examined in light of current conditions.

Chief Justice Calvert, joined by Justice Smith, dissented, stating:

“I would abolish it outright, preferably instanter, without distinction as to the nature or character of the various charitable organizations. I would agree to abolish it prospectively so that liability would attach only in cases arising hereafter. Finally, if driven to it, I would abolish it effective upon adjournment of the Regular Session of the 60th Legislature in 1967, thus permitting the Legislature to act in the matter if it wished to do so.”

By the use of the words, “hereafter arising” and “arising hereafter” used respectively by Justice Walker and Chief Justice Calvert we would assume they had reference to the initiating proceedings in courts of original jurisdiction rather than in those cases arising in their court. In any event, we feel we are obligated, to follow the majority. Accordingly, the motion for rehearing is overruled.

      . President and Directors of Georgetown College v. Hughes, United States Court of Appeals, District of Columbia, 76 U.S. App.D.C. 123, 130 F.2d 810.

      . Vermillion v. Woman’s College of Due West, 104 S.C. 197, 88 S.E. 649.

      . There the claimant slipped and fell while entering the ladies’ restroom of the hospital where the floor was higher than the hall from which she was entering, whereas in our case appellant alleged she was injured by the unusual action of an automatic elevator located in the Methodist Medical Building.


author: RENFRO, Justice.

text:
    Ed E. SAMMONS, Individually and as Independent Executor of the Estate of Mrs. Lee James, Deceased, Appellant, v. Gertrude O. Sammons MANNING et vir, Appellees.
    No. 16711.
    Court of Civil Appeals of Texas. Fort Worth.
    March 4, 1966.
    Rehearing Denied April 1, 1966.
    Earl Luna, Dallas, for appellant.
    Sidney P. Chandler, Corpus Christi, for appellees.
   RENFRO, Justice.

This is a venue case.

Plaintiff, Gertrude O. Sammons Manning, was a niece of Mrs. Lee James, deceased. Defendant, Ed E. Sammons, nephew of Mrs. James, was sued individually and as independent executor of the estate of Mrs. James.

The land in controversy is situated in Tarrant County and Mrs. James’ will was probated in Tarrant County.

Defendant is a resident of Dallas County and filed his plea of privilege to have the case transferred to Dallas County.

The plea was overruled.

On appeal defendant contends no exception to the venue statute sustains the trial court’s judgment. Plaintiff contends venue was properly sustained in Tarrant County under subdivisions 6 and 14 of Art. 1995, Vernon’s Ann.Tex.Civ.St.

Plaintiff’s petition alleged that she “is the owner in fee title or by equitable title of a one-fourth (⅛) undivided interest in all of the property owned by Mrs. Lee James, Deceased, at the time of her death, which property was and is situated in Tarrant County, Texas * *

It was alleged that on February 2, 1959, deceased made a purported will wherein she made a tentative disposition of her entire estate; thereafter Mrs. James called a meeting of relatives and expressed a desire that her estate be divided into four parts, plaintiff to receive a 14 interest provided plaintiff agreed to use her interest to support her parents; plaintiff agreed; prior to November 16, 1960, Mrs. James summoned defendant Sammons and her attorney to visit her for the purpose of instructing them to write either a new will or a codicil carrying out the terms of the agreement; such instrument was prepared and exhibited to Mrs. James, who adopted same; Mrs. James died November 16, 1960; on November 18, 1960, defendant called a meeting of Mrs. James’ relatives where it was “agreed by and between all of those present that the estate of Mrs. Lee James, the deceased, would be divided in accordance with her wishes and that it would be divided into four equal undivided portions, with * * * Gertrude O. Sammons Manning having a one-fourth (⅛) undivided interest, and Ed E. Sammons having a one-fourth (¼) undivided interest”; defendant, by letter and written memorandum, did in writing confirm the agreement; from November 23, 1960, until May 5, 1964, defendant “recognized, acknowledged, confirmed and agreed that the Plaintiff Gertrude O. Sammons Manning was and is the owner of an undivided one-fourth (¼) interest in all of the estate of Mrs. Lee James, the deceased * * that on May 5, 1964, defendant repudiated tire title of plaintiff in the James property. Plaintiff prayed that the court enter a declaratory judgment that plaintiff “is and was the owner of an undivided one-fourth (14) interest of all the estate of Mrs. Lee James, deceased, as of the 16th day of November, 1960 * *

Attached to and made a part of the petition were the inventory and appraisement filed by defendant, showing the land to be located in Tarrant County; a written acceptance of Mrs. James’ offer by plaintiff; a letter dated November 23, 1960, from defendant to plaintiff, enclosing a copy of the memorandum prepared by Mrs. James’ attorney, setting out her desire that, among other bequests, plaintiff was to receive an undivided (4 of the estate. In the letter defendant stated he intended to carry out the request set out in the memorandum.

Plaintiff’s controverting affidavit incorporated the petition and exhibits and swore the facts alleged and set out therein were true, and swore further that the suit was one to quiet the title to an interest in lands, or for the recovery of an interest in lands situated in Tarrant County.

Subdivision 14 of the venue statute provides that suits for the recovery of lands or damages thereto, or to remove incum-brances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.

The venue facts under this subdivision or exception are the location of the land and the nature of the suit as disclosed by the petition. Umbaugh v. Miers, 256 S.W.2d 660 (San Antonio Civ.App., 1953, no writ hist.).

In Woodworth v. Rogers, 367 S.W.2d 412 (San Antonio Civ.App., 1963, no writ hist.), it was held: “The venue facts necessary to be proved under Subd. 14 are: (1) that the suit is one for title to real estate or damages thereto, or to remove incumbrances upon the title to land; and (2) that the land involved is situated in Duval County. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69.”

In the instant case the plaintiff introduced evidence showing the land to be in Tarrant County. ,

We hold that the pleadings were sufficient to show that plaintiff was claiming an equitable title to an undivided interest in the land. The equitable title pleaded by plaintiff presented a legal basis for an action for direct recovery of the undivided interest claimed by her. This characterizes her suit as one for the recovery of the land. Carstairs v. Bomar, 119 Tex. 364, 29 S.W.2d 334 (Tex.Com.App., 1930).

Whether the agreements made by the various parties as alleged, and heretofore summarized, were actually made and, if made, whether valid, are matters to be determined at the trial on the merits.

The venue inquiry under exception 14 is restricted to the nature or character of the suit, and is not directed to the question of whether or not a cause of action exists in fact. Cox v. Palacios, 188 S.W.2d 688 (San Antonio Civ.App., 1945, no writ hist.). In Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (Tex.Sup., 1945), the court held: “ * * * the facts as to whether he owned the land became immaterial upon the issue of proper venue of this suit. He was not obliged to establish title in the venue hearing”, citing Stuart et al. v. Herman et al., Tex.Civ.App., 157 S.W.2d 939, and Smith v. Mitchell, Tex. Civ.App., 161 S.W.2d 591.

Plaintiff introduced her petition, with attached exhibits, and her controverting plea, which, in our opinion, were sufficient to show that her suit was for recovery of an alleged interest in, and to remove cloud from title of, land which she owned, and she, by evidence, established the' fact that the land was in Tarrant County.

Plaintiff proved, therefore, the venue facts necessary to show venue in Tarrant County within the contemplation of subdivision 14.

Judgment affirmed.


author: DUNAGAN, Chief Justice.

text:
    Byron BILLINGSLEY, Appellant, v. SOUTHERN PACIFIC COMPANY, Appellee.
    No. 164.
    Court of Civil Appeals of Texas. Tyler.
    March 10, 1966.
    Rehearing Denied March 31, 1966.

      Robert Fairchild, Fairchild & Hunt, Center, for appellant.
    Wardlow W. Lane and Joe Davis Foster, Center, Baker, Botts, Shepherd & Coates, McGregor, Sewell, Junell & Riggs, Houston, for appellee.
   DUNAGAN, Chief Justice.

This suit was instituted in the District Court of Shelby County, Texas, by appellant, Byron Billingsley, against the appellee, Southern Pacific Company, seeking damages for bodily injury sustained when a vehicle operated by appellant was allegedly struck by appellee’s train at a rural crossing in Shelby County on the night of October 31, 1963. Actionable negligence in numerous respects, including the maintenance of an extra-hazardous crossing, was alleged against the railroad. Appellee alleged defensively numerous acts of contributory negligence, including excessive speed, on the part of appellant. The jury, in answer to twenty-eight Special Issues, found that the operators of appellee’s train did not fail to ring the train’s bell continuously beginning at a point 1,320 feet from the crossing until it reached the crossing; that they did not fail to blow the whistle beginning at a distance of 1,320 feet from the crossing and continuing until it reached the crossing; and that they did not fail to blow the whistle after appellant’s vehicle became plainly visible to them. In answer to Special Issues Nos. 3, 4 and 5, however, the jury found that the crossing in question was extra hazardous; that appellee’s failure to maintain a mechanical warning device thereat was negligence; and that such negligence constituted a proximate cause of the collision. No other aet of primary negligence was found against appellee.

In answer to the Issues submitted relating to the conduct of appellant, (Special Issues Nos. 16 through 26) the jury absolved him of alleged negligence in failing to make a timely application of brakes on his automobile; in failing to exercise ordinary care to listen for an approaching train; and in operating his vehicle with defective brakes. The jury found that appellant failed to keep a proper lookout for the approaching train, but that such failure was not a proximate cause of the collision. The jury further found, however, that as appellant approached the crossing he was operating his automobile at an excessive rate of speed (Special Issue No. 20) and that such conduct constituted a proximate cause of the collision (Special Issue No. 21). The jury found that the accident was not unavoidable and awarded damages to appellant. He moved the trial court to disregard the jury’s findings to Special Issues Nos. 20 and 21 because there was no evidence, or an insufficiency of evidence, to support them. The motion was overruled and judgment entered on the verdict for appellee. Appellant’s motion for new trial having likewise been overruled, this appeal has been perfected.

The first nine Assignments of Error, as grouped by appellant for discussion, relate to the jury’s findings in answer to Special Issues Nos. 20 and 21 that, as appellant approached said crossing on the occasion in question, he was operating his automobile at an excessive rate of speed. By appropriate Assignments, appellant claims that (a) there is no evidence of probative force to support such findings; (b) the evidence is insufficient to support them; and (c) the findings are against the great weight and preponderance of the evidence.

Under the well settled rule for appellate determination of such Assignments, we are required to dispose of the “no evidence” points before passing upon the questions of “insufficiency of evidence.” In determining the former, it is our duty to consider only the evidence and the inferences favorable to the findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, Tex., 395 S.W.2d 821 (S.Ct.) 1965; Hartford Accident & Indemnity Company v. Gant, 346 S.W.2d 359 (Tex.Civ.App.) 1961, no writ; Higginbotham v. O’Keeffe, 340 S.W.2d 350 (Tex.Civ.App.) 1960, ref. n. r. e.; and Gregory v. Tyler Grain And Storage Company, 341 S.W.2d 221 (Tex.Civ.App.) 1960, no writ; Calvert “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas Law Review 361. If we conclude there is evidence of probative force supporting the findings, it thereupon becomes our duty to determine the “insufficiency of evidence” Assignments. In making such a determination, we must consider and weigh all of the evidence in the case to determine whether there is a sufficiency of evidence to support the findings or whether they are so against the great weight and preponderance of the evidence as to be clearly erroneous. In re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). It becomes necessary, therefore, to review in some detail the evidence relating to appellant’s speed in order to determine the questions presented.

On October 31, 1963, appellant, a mechanic, left his home in Timpson, Texas, and was en route to repair a truck which he understood was disabled between the Silas and Stockman Communities in Shelby County. He was traveling upon Farm-to-Market Road No. 2667 approximately four miles south of Timpson and was approaching appellee’s railroad crossing with which he was familiar. The roadway for some distance before reaching the railroad crossing runs somewhat parallel to the tracks and, considering the direction appellant was traveling, curves to the left and crosses the tracks at approximately a 45 degree angle, and then curves back to the right after crossing the tracks. The road at the crossing where the accident occurred is level, two-lane and black topped. Appellant was alone in his Lincoln convertible and he testified that as he approached the crossing, he was driving “about 60 miles per hour,” but reduced his speed to an estimated 45 to 50 miles per hour shortly before he reached it.

He testified the weather was cloudy and hazy and the windows of his automobile were up. There was a brush thicket between him and the railroad crossing. This crossing was located about three and one-half to four miles from appellant’s shop and he testified in detail with reference to its approaches and the conditions surrounding the same. He stated that the “posted speed limit” was probably 55 miles per hour and that he was traveling about 60 miles per hour until he reached the curve leading onto the crossing. He did not know the exact speed of his vhicle at the time he first applied his brakes.

Appellant produced witness R. H. Vin-yard, a Texas Highway Patrolman, who testified that during his thirty years’ service with the Department of Public Safety, he had investigated numerous collisions throughout the state. He had attended a fourteen week school in Austin, conducted by the Department, where he received training in the investigation of traffic accidents. Appellant’s counsel qualified the witness as an expert accident investigator. He testified that he was called to investigate the accident involved here and arrived at the scene about 10:30 a. m. the morning following the accident. He made a personal investigation of the physical facts thereat, including the location of the debris, as well as the measurement of skid marks leading up to the crossing, and found thirty-five steps of skid marks up to a point about eighteen inches beyond the first rail of the crossing. He established the point of contact between the automobile and the train. Upon measuring the distance from the automobile to the crossing he found it to be 350 feet. There were no breaks in the skid marks. After appellant’s counsel had qualified this witness as to his ability to determine speeds of vehicles from skid marks, the witness testified that a vehicle going 60 miles per hour would require 270 feet within which to stop. He further testified that a motorist approaching this crossing would be 150 feet from the crossing before he could determine whether a train was approaching. Numerous exhibits of the damage resulting to appellant’s automobile were introduced into evidence by appellant and this witness testified also as to the physical damage to the automobile.

On cross-examination appellee’s counsel elicited from Vinyard that at the time of his investigation he estimated the speed of appellant’s vehicle at 70 miles per hour prior to application of brakes. He also estimated, without objection, that a “safe speed” at that particular location under the existing conditions was 35 miles per hour.

Appellee produced as a witness Dr. Wm. H. Tonn, Jr., a consulting Engineer who, since 1948, has been engaged in accident-analysis work. Dr. Tonn had made a study of the automobile involved in the collision. He had also made photographs of the vehicle and testified in great detail that he examined exhibits showing the skid marks at the scene of the accident and had determined that the speed of appellant’s vehicle when the brakes were first applied was within the range from 56 miles per hour to a speed “in excess of” 65 miles per hour. Dr. Tonn based his opinion upon his observations at the scene of the accident, an examination of the damage to the vehicle, the appellee’s photographic exhibits, measurements, mathematical calculations and testimony in the record.

Applying the rules hereinabove set forth, there is no difficulty in determining that there was considerable evidence of probative force to support the jury’s findings in answer to Special Issues Nos. 20 and 21.

It is well settled in this state that experts may give their opinions as to rates of speed from facts detailed' to them. Stamper v. Scholtz, 29 S.W.2d 883 (Tex.Civ.App.) 1930, err. ref.; and Zepeda v. Moore, 153 S.W.2d 212 (Tex.Civ.App.) 1941, err. dism. Under the circumstances shown in the record, the witnesses were qualified to express their opinions as to the speed of appellant’s automobile and such testimony constituted evidence of probative force supporting the findings of the jury in answer to Special Issues Nos. 20 and 21. Missouri-Kansas-Texas R. Co. v. Hamilton, 314 S.W.2d 114 (Tex.Civ.App.) 1958, n. r. e.; Davis v. Younger Bros., 260 S.W.2d 637 (Tex.Civ.App.) 1953, n. r. e. and Linkenhoger v. Gilbert, 223 S.W.2d 308 (Tex.Civ.App.) 1949, ref., n. r. e.

In support of his contention that the opinion evidence of Vinyard and Tonn constituted no evidence of probative force, appellant relies upon the ease of Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956), wherein the Supreme Court of Texas, in passing upon whether an ordinance of the City of Dallas had been properly proved, held that the naked and unsupported opinion or conclusion of a witness, offered without objection, constituted no proof of the provisions and legal effect of a municipal ordinance. We do not see the applicability of the cited case to the one at bar. The opinions and conclusions of .Vinyard, whose qualifications were undoubtedly established by appellant’s counsel, as well as the opinion of Tonn, were not “naked and unsupported” but, on the contrary, were amply supported by appellant’s admissions, the physical facts, and numerous photographs and exhibits in evidence. Much of appellant’s argument is based upon the assumption that since there was no direct evidence showing that appellant’s speed, as he approached the crossing, exceeded the “legally posted speed limit,” his speed could not be excessive. Although a motorist may not be exceeding the “legally posted speed limit,” nevertheless, he is under the duty to drive no faster than an ordinarily prudent person in the exercise of ordinary care would drive under the same or similar circumstances. A speed may be held excessive under the circumstances although below the “legally posted limit.” Seay v. Kana, 346 S.W.2d 384 (Tex.Civ.App.) 1961, no writ; Vardilos v. Reid, 320 S.W.2d 419 (Tex.Civ.App.) 1959, no writ. Moreover, if approaching and crossing a railway grade crossing, a motorist has the statutory duty to drive at a speed no greater than is reasonable and prudent under the conditions then existing. Article 6701d,..Section 166, Vernon’s Ann.Civ.St. of the State of Texas. The jury, as judge of the facts proved, was authorized to draw reasonable deductions from the evidence and inferences adduced. Its findings may not be disregarded where supported by evidence of probative value, coupled with inferences which may properly be drawn therefrom. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958).

Having determined that the findings to the Issues aforesaid were supported by evidence of probative force, it becomes our duty to review and consider all of the evidence in the record relating to the question of appellant’s speed to determine whether the evidence is sufficient to support the findings and whether such findings are not against the great weight and preponderance of the evidence. In re: King’s Estate, supra. . Having reviewed the entire record and having considered not only the evidence and inferences thereform supporting the findings, but also all of the evidence and inferences opposed thereto, we conclude that the findings to the Issues are amply supported by sufficient evidence and the same are not against the great weight and overwhelming preponderance of the evidence.

Assignments of Error Nos. 10, 11 and 12 assert that the jury’s answers to Special Issues Nos. 20 and 21, relating to excessive speed of appellant, are in irreconcilable conflict with its answers to Special Issues Nos. 1 and 2. Prior to entry of judgment, appellant moved the court to disregard the answers to Issues Nos. 20 and 21. The court denied the motion and this action is the basis of claimed error.

It is the duty of the trial court to reconcile, where possible, seeming conflicts in the findings of the jury. If there is a reasonable explanation of the findings alleged to be conflicting, the court should so construe them as not in irreconcilable conflict. Perkins v. Mitchell, 153 Tex. 368, 268 S.W.2d 907 (1954); Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558 (1949); Stuckey v. Union Mortgage & Investment Company, 383 S.W.2d 429 (Tex.Civ.App.) 1964, ref., n. r. e.; Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97 (1939). Two findings will be considered to be in conflict only when they oppose each other in such a way that both cannot be true. Hancock v. Sammons, 267 S.W.2d 252 (Tex.Civ.App.) 1954, ref., n. r. e.; Maddox v. Ellison, 240 S.W.2d 398 (Tex.Civ.App.) 1951, no writ. Unless the answers are in such irreconcilable conflict so as to be mutually destructive, the verdict should not be set aside. Southwest Bitulithic Co. v. Dickey, 28 S.W.2d 264 (Tex.Civ.App.) 1930, no writ. And, in making a determination of irreconcilable conflict, a specific finding is generally held to control a general one. Bragg v. Hughes, 53 S.W. 2d 151 (Tex.Civ.App.) 1932, no writ; Cunningham v. Suggs, 340 S.W.2d 369 (Tex.Civ.App.) 1960, ref., n. r. e.; Sproles v. Rosen, 126 Tex. 51, 84 S.W.2d 1001 (1935); Fort Worth & Denver Railway Company v. Britton, 310 S.W.2d 654 (Tex.Civ.App.) 1958, ref., n. r. e.; Speer, Law of Special Issues, p. 561, Sec. 432. It is never presumed that the jury intended to return conflicting answers and, if the same can be reconciled upon a reasonable basis, the court should sustain them. Casualty Underwriters v. Rhone, supra.

Applying the above principles to the findings of which complaint is here made, it is our conclusion that there is no irreconcilable conflict. Special Issue No. 20 inquired whether appellant, as he approached the crossing in question, was driving at a speed in excess of that at which a person of ordinary prudence in the exercise of ordinary care would have operated the vehicle under the same or similar circumstances. The jury answered in the affirmative and by its finding in answer to Special Issue No. 21 found that such conduct was a proximate cause of the collision. By its answer to Special Issue No. 1, the jury found that after appellee’s train became plainly visible and in hazardous proximity to the crossing, appellant could not have stopped the automobile within 50 feet but not less than 15 feet from the nearest rail; and in answer to Special Issue No. 2, found that the inability of appellant to so stop was not caused by his own negligence. Thus the time element inquired about in the Issues differs materially. Special Issue No. 20 does not pinpoint the time to after the train became plainly visible, but, on the contrary, permits the jury to consider appellant’s speed as he approached the cross ing and, therefore, could and did reasonably refer to a distance traveled by appellant much greater than that specified in Special Issue No. 1. The evidence produced by appellant showed that a train approaching from the north was not plainly visible to a motorist until the motorist was within ISO feet of the crossing. Therefore, although appellant could not have stopped his vehicle within the distance specified, the jury could reasonably conclude that his speed was excessive long before he reached the point where the train became “plainly visible.” The findings to both Special Issues Nos. 20 and 1 could, under the evidence, be true. Special Issue No. 2, conditioned upon an affirmative finding to Special Issue No. 1, obviously referred to appellant’s conduct after the train was “plainly visible.” Non-negli'gent conduct on the part of appellant after the train became “plainly visible” did not preclude the jury from finding appellant’s conduct negligent before the train became “plainly visible.” The findings may be easily reconciled on the basis of the time element alone. Brown v. Date, 395 S.W.2d 677 (Tex.Civ.App.) 1965, ref., n. r. e.

Moreover, the jury’s findings on Special Issues Nos. 20 and 21 are specific in nature and, for the purpose of determining conflict, should be given effect over the more general findings of the answers to Special Issues Nos. 1 and 2. Bragg v. Hughes, supra. Since the findings are not mutually destructive, but are capable of being reasonably reconciled under the evidence, we hold that they are not in irreconcilable conflict, and the trial court did not err in refusing to disregard the findings to Special Issues Nos. 20 and 21.

The last group of Assignments of Error, 13 through 47, complains of the action of the trial court in submitting over appellant’s objections, Special Issues Nos. 16 through 26, referred to hereinabove, and in entering judgment on the verdict for ap-pellee. Appellant contends that the Issues aforesaid are evidentiary and not ultimate ones; that the same inquiries are contained in Special Issues Nos. 1 and 2; and that by submitting the defensive Issues the court, in effect, was commenting upon the weight of the evidence. With the exception of Special Issues Nos. 18, 20 and 21, all of the defensive Issues were answered favorably to appellant. The jury found, in answer to Special Issue No. 18, that appellant failed to keep a proper lookout for the train, but in answer to Special Issue No. 19 that such failure was not a proximate cause of the collision. As to all other defensive Issues, appellant obtained favorable findings thereon and therefore he cannot complain of their submission. Cogbill v. Martin, 308 S.W.2d 269 (Tex.Civ.App.) 1957, no writ. Appellant argues that the court having submitted Special Issues Nos. 1 and 2 — appellant’s theory of excusable violation of Section 86 of Art. 6701d — had ended the matter and appellee was not entitled to any defensive Issues although the same were pled and the evidence raised them. Appellant contends that if he had an “excuse” to violate the statute, he could not be guilty of contributory negligence in other respects. To sustain appellant’s position, it would be necessary to hold, in effect, that the defenses provided by Section 86 of Article 6701d are exclusive and that the railroad in a crossing accident is not entitled to assert defenses independent of the statute such as excessive speed, improper lookout and similar matters. The statute did not have the effect of abolishing other common law defenses available to the railroad. Thus in Texas & New Orleans Railroad Co. v. Day, 159 Tex. 101, 316 S.W.2d 402 (1958), other defenses were submitted; and in Martin v. Texas and New Orleans Railroad Company, 375 S.W.2d 554 (Tex.Civ.App.) 1964, no writ, the court recognized common law duties on the part of the motorist in addition to the statutory duties required by Section 86 aforesaid; and in Texas & N. O. R. Co. v. Stewart, 248 S.W.2d 177 (Tex.Civ.App.) 1952, ref., n. r. e., numerous acts of contributory negligence, including excessive speed of the motorist, were submitted. See also Lackey v. Gulf, C. & S. F. Ry. Co., 225 S.W.2d 630 (Tex.Civ.App.) 1949, no writ; Lewis v. Thompson, 244 S.W.2d 286 (Tex.Civ.App.) 1951, ref., n. r. e.; Peters v. Chicago, R. I. & P. R. Co., 257 S.W.2d 860 (Tex.Civ.App.) 1953, no writ. While the findings to Special Issues Nos. 1 and 2 were favorable to appellant and excused his violation of the duties prescribed by Section 86 of Article 6701d, they did not have the effect of abolishing other common law duties of appellant or denying other defenses to appel-lee. Under a long line of authorities in this state, any fact or group of facts which, if true, would constitute a ground of recovery or defense, if pled and supported by evidence, is entitled to an affirmative submission to the jury. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517 (1922); Rule 277, Texas Rules of Civil Procedure. Special Issues Nos. 20 and 21 were ultimate controlling Issues and were submitted properly. Villanueva v. Rodriguez, 300 S.W.2d 668 (Tex.Civ.App.) 1957, ref., n. r. e. The appellee having obtained favorable findings thereon was entitled to judgment.

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

      . SPECIAL ISSUE NO. 20 — Do you find from a preponderance of the evidence that at the time and on the occasion in question as C. B. Billingsley approached the crossing in question, he was operating the automobile at a speed in excess of that at which a person of ordinary prudence in the exercise of ordinary care would have operated it under the same or similar circumstances?
      Answer “Yes” or “No.”
      ANSWER Yes

      . SPECIAL ISSUE NO, 21 — Do you find from a preponderance of the evidence that such operation of the automobile, as inquired about in the foregoing special issue, if you have so found, was a proximate cause of the collision in question?
      Answer “Yes” or “No.”
      ANSWER Yes

      . SPECIAL ISSUE NO. 1 — Do you find from a preponderance of the evidence that after the defendant’s train became plainly visible and in hazardous proximity to the crossing in question, the plaintiff by the exercise of ordinary care could not have stopped his automobile within 50 feet but not less than 15 feet from the nearest rail of the railroad track?
      Answer “He could have stopped,” or “He could not have stopped.”
      ANSWER He eould not have stopped.
      In connection with your answer to the foregoing Special Issue, you are instructed that the defendant’s train was plainly visible, if it was, when a reasonably prudent person situated as was the plaintiff and exercising care for his own safety should have seen it.
      You are further instructed in connection with your answer to the foregoing Special Issue that the defendant’s train was “in hazardous proximity to the crossing,” if it was, when, under all the surrounding facts and circumstances in evidence, the speed and nearness of the train was such that a reasonably prudent person, situated as was plaintiff, should have known that an attempt to proceed across the crossing ahead of the train was hazardous.

      . SPECIAL ISSUE NO. 2 — Do you find from a preponderance of the evidence that the inability of the plaintiff to stop his automobile within 50 feet but not less than 15 feet from the nearest rail of the railroad track, if he could not have so stopped, was not caused by his own negligence, if any, as that term is herein defined?
      Answer “It was caused by his own negligence,” or “It was not caused by his own negligence.”
      ANSWER It was not caused by his own negligence.


author: CHADICK, Chief Justice.

text:
    Birdie Mae PENNY et vir, Appellants, v. CITY OF TEXARKANA, Texas, Appellee.
    No. 7702.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 15, 1966.
    Rehearing Denied March 29, 1966.

      William A. Barber, Jr., Texarkana, for appellants.
    William E. Wiggins, Texarkana, for ap-pellee.
   CHADICK, Chief Justice.

This is a common law negligence action. The judgment of the trial court is reversed and the case remanded.

In the district court, after the plaintiff Birdie Mae Penny tendered evidence in support of her suit to recover damages for personal injury, the defendant, City of Texarkana, Texas, moved the trial judge to direct the jury to return a verdict for the city. The motion was granted and thereafter judgment was entered that Birdie Mae Penny take nothing.

The City of Texarkana, as appellee, urges affirmance of the trial court’s judgment on two basic propositions, first, because Birdie Mae Penny failed to give the City notice of her claim in compliance with City Charter provisions; and second, on the two-pronged contention that there was a material variance between her Notice of Claim and the proof and her pleadings and the proof.

Testimony was offered by Birdie Mae Penny that her Notice of Claim against the City of Texarkana was timely delivered to a City Councilman and a receipt therefor obtained from him. Art. XVII, Sec. 4 of the City Charter of Texarkana, Texas, provides that a claimant in a case of this nature shall give the City Council notice in writing of her claim, describing when, where and how she was injured, etc. The validity of this Charter provision is not questioned. The Charter, however, does not set out a procedure for service of the required Notice on the City Council. In Jones v. City of Fort Worth, (Comm.App.1924) 267 S.W. 681, op. adpt, it was held that in the absence of a prescribed service procedure “any method of service that affords the city its substantial rights in the matter of such service ought to be, and is, sufficient.” The Supreme Court in a later case, McLendon v. City of Houston, 153 Tex. 318, 267 S.W.2d 805, quoted and re-affirmed the concept expressed by the above extract from Jones v. City of Forth Worth, and in the appeal before it held that a letter addressed to the Mayor and City Council, which was delivered to the City Secretary before the expiration of the period allowed for notice but after expiration of that period delivered by the City Secretary to the Mayor, was a sufficient compliance with the provisions of a charter that required notice in writing to the Mayor and City Council. The service in the present case was adequate under these authorities.

In paragraph 3 of her Notice of a Claim, Birdie Mae Penny asserted the City allowed grass to grow up, cover and “conceal a hole in the earth adjoining the public walkway or path in front of the house numbered 1108 West 14th Street”. In her trial petition, paragraph 3, she states that the City allowed the grass to grow up, cover and “conceal a hole in the earth on the public walkway or path in front of the house numbered 1108 West 14th Street, Texarkana.” The variance charged is that the proof does not support the allegation made by the underscored words.

Photographs and other evidence show the path referred to in the Notice and Pleadings to be located on the north side of West 14th Street, about midway between the curb and adjoining property lines, meandering in an east and west direction generally parallel to the curb of the paved street. The north side of the street in the area of interest is solidly covered with vegetation, grasses principally, except in the footpath. The carpet of vegetation in the pathway is so trampled and worn that the footpath is very distinct and appears bare with a ragged fringe of grass along its sides. Observed from the east, there is visible in the area in front of the house numbered 1108 West 14th Street the lid of a water meter at the left edge of the path, and just beyond the water meter the path is seen to turn slightly southward toward the street. This curve in the path causes it to skirt around the spot identified as the hole figuring in the lawsuit. Had the path continued straight, instead of curving, it would have passed directly over the location of the hole. Grassy vegetation with stems and blades several inches in length rims the hole.

Within the sphere of the purpose, function and operation of the Notice of Claim and of the plaintiff’s petition the allegations therein locating the hole do not vary from the location shown by the evidence. The allegations that the hole was “adjoining” the walkway or path in one instance and “on” the walkway or path in the other should not be considered in a vacuum, opposed one to the other, thereby reducing the issue to mere logomachy, but rather the question of variance should be determined from the allegations made and the facts proved. The legitimate issues presented by the counter points of error are whether or not the facts alleged correspond with the facts proven or vary therefrom in such degree as to defeat the purpose of notice or pleading.

In giving the required notice, Birdie Mae Penny alleged the location of the hole as an incident in her description of where, and how her injury occurred. The facts heretofore related are subject to the construction that the hole did adjoin the dirt path. The notice put the City in possession of this incidental fact, which together with the other information it contained, permitted a proper investigation to be made of the condition of the path at the point mentioned. See City of Abilene v. Fillmon (Tex.Civ.App.), 342 S.W.2d 227, N.R.E.; Annotation, 52 A.L.R.2d 966. No variance is shown.

Respecting a variance between Birdie Mae Penny’s petition and the proof, the evidence is subject to a construction that the hole was actually in the walkway or path, and that pedestrians stepped around it. Aside from that construction however, under the fairly liberal principles that govern questions of correspondence between pleading and proof, the judgment entered can not be supported. In Pleadings, 46 T.J. 2d 166 Sec. 271, some of the rules applicable are stated in this language:

“ * * * To be fatal, a variance must be a substantial, misleading and prejudicial departure. * * * It is well settled that not every actual variance of some feature of the proof from the pleadings, such as goes to mere circumstances, incidents, or causes that only contributed to the main declaration, is considered to be a material one, where the variance does not go down to the structural nature of the cause of action declared on. * * * But where a party is hot taken by surprise by the evidence introduced, an objection to the reception of evidence for variance may, with propriety, be overruled.”

If the variance suggested by the City did in fact exist there is no showing of surprise nor that the City was misled or prejudiced. No material variance is shown.

The conclusions stated obviate any need for discussion of all the questions raised by the parties’ briefs, though they have been carefully considered, as the decision on them does not change the disposition required to be made of the appeal. The judgment of the trial court is reversed and the case remanded for new trial.

      In City of Waco v. Landingham (Tex.Civ.App.) 158 S.W.2d 79, wr. ref., it is said:
      “It is generally held that the purpose of the notice, such as is here required by the city charter, is to advise the municipality in what the alleged negligence consists and give it an opportunity to investigate while the facts are fresh and the conditions remain substantially the same, thereby enabling it to better guard against fraudulent and unfounded claims and to settle the claim and avoid litigation, or to prepare for trial if it decides not to make settlement. 43 C.J. 1185. There must at least be a substantial compliance with the statute. The description of the cause or circumstances of the jury must be sufficient to direct attention with reasonable certainty to the substantial defect or act of negligence for such recovery is demanded. 43 C.J. 1200. * * * ”
      The rule of thumb is that the allegations of a pleading must give fair notice of what is relied upon as a ground of recovery. Rule 45 Texas Rules of Civil Procedure; XX Texas Law Review 16; 2 Texas Civil Practice Sec. 5.02, page 478; 45 Tex.Jur.2d 363, Sec. 5.


author: COLLINGS, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Delories Williams BUFFINGTON, Appellee.
    No. 4030.
    Court of Civil Appeals of Texas. Eastland.
    March 11, 1966.
    Rehearing Denied April 1, 1966.

      Kerr, Fitz-Gerald & Kerr, Midland, for appellant.
    Selwyn S. Webber, W. R. Barnes, Odessa, for appellee.
   COLLINGS, Justice.

This is a workmen’s compensation case. The trial was before a jury and based upon its findings, judgment was rendered for the plaintiff, Delories Williams Buf-fington, for total and permanent incapacity. Travelers Insurance Company has appealed.

In appellant’s first three points it is contended that the court erred in instructing counsel for appellant not to make any statements or to interrogate any witness relative to the conviction of appellee’s expert witness, Dr. Joe Boyd, for practicing medicine without a license, and in refusing to admit the testimony of Dr. Boyd on cross-examination relating to several arrests and his conviction for the illegal practice of medicine.

The evidence indicates that appellee De-lories Williams Buffington fell and sustained an injury while she was working as a car-hop in Big Spring, Texas, on the evening of March 18, 1963. Two days after her injury she left her employment and moved to Odessa where a few days later she went to Dr. Joe Boyd, a chiropractor in that city, for treatment. She continued under his care, seeing him about three times a week, from then until the time of the trial except for a period of about six months when she was married to her second husband Lee Buffington and lived in Kermit. Appellee stated that during the time she was in Kermit she was unable to see Dr. Boyd regularly or very often. The evidence shows that Dr. Boyd is and at all relevant times was a chiropractor practicing his profession in Odessa. Dr. Boyd testified that his practice as a chiropractor had never "been interrupted. He testified outside the presence of the jury, for the purpose of the record, that he was arrested three or four times somewhere between 1955 and 1960 for practicing medicine without a license and that he was tried on one of these charges. The conviction in question was for a misdemeanor in the County Court of Ector County. Dr. Boyd did not admit that he was guilty of such offense. His license as a chiropractor has never been suspended. Also, outside the presence of the jury, Judge Selwyn S. Web-ber, one of the attorneys of record for ap-pellee, testified that he was the County Judge of Ector County in April 1958, and the presiding Judge at the trial of the witness, Dr. Joe Boyd, for illegal practice of medicine; that a judgment of conviction was entered in that case on April 29, 1958.

Appellee presented to the court her motion in limine to exclude from the jury the testimony concerning Dr. Boyd’s arrests and conviction for the reasons that the offense did not involve moral turpitude, was a misdemeanor, was too remote and was not admissible for impeachment purposes. Ap-pellee’s motion in limine was sustained by the court. The court also refused to admit in evidence the testimony of Dr. Boyd on cross-examination concerning his several arrests and his 1958 conviction for the illegal practice of medicine. The trial of the instant case was in May of 1965.

Contrary to appellant’s contention such action of the court does not constitute error. In the first place to render testimony concerning a witness’ connection with crime admissible in civil cases to impeach or discredit him he must be shown to have been convicted of an offense involving moral turpitude or must presently admit his guilt of such offense. Associated Employers Lloyds v. Tullos, Tex.Civ.App., 197 S.W.2d 210. Dr. Boyd’s 1958 conviction of the misdemeanor offense of practicing medicine without a license was not a conviction for an offense involving moral turpitude. The court therefore did not err in holding inadmissible the testimony concerning such conviction.

The record also shows that the trial of this case in May of 1965 was more than seven years after Dr. Boyd’s conviction in April, 1958. Appellee contends that the conviction is inadmissible because it is remote. It is held, that the admissibility of a conviction of a criminal offense with regard to remoteness is a matter resting within the sound discretion of the trial court. Adams v. State Board of Insurance, Tex.Civ.App., 319 S.W.2d 750; United Benefit Fire Insurance Company v. Stock, Tex.Civ.App., 344 S.W.2d 941, and cases cited therein. It is our opinion that under the facts of this case the court did not abuse its discretion in instructing counsel for appellant not to make statements or to interrogate witnesses relative to the conviction of Dr. Boyd for practicing medicine without a license, and in refusing to admit testimony of Dr. Boyd on cross-examination concerning his several arrests and conviction for the illegal practice of medicine.

In appellant’s 4th, 5th, 6th and 7th points it is urged that the court erred in rendering judgment for appellee because, appellant contends, there is insufficient evidence to support the findings of the jury that appellee is totally and permanently disabled and such findings are so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. In points complaining of the insufficiency of the evidence and that findings are against the great weight and preponderance of the evidence it is our duty to consider and weigh all of the evidence in the case. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. The evidence shows that on March 18, 1963, when appellee sustained the injury complained of she was twenty-two years of age and was living with her sister in Big Spring. She was separated from her first husband and one of their three children was living with her. The two other children were living with their father’s mother. Although there is some conflict in the evidence as to how the accident occurred, the evidence shows that appellee did fall in a sitting position on a concrete floor and thereby sustained an injury. The jury found that the fall caused total and permanent disability. Appellee worked the rest of the night after her fall and also worked the next day but did not thereafter return to her job at the Wagon Wheel.

Appellee then moved to Odessa to live with her mother, and after a few days was examined by Dr. Boyd. Dr. Boyd testified that he had previously seen appellee when she accompanied her mother who was receiving treatments and that on such prior occasion, which was before her fall, there was nothing wrong with appellee; but that when he examined her shortly after her injury he found severe tenderness in the low back and across both hips; that she had difficulty in bending or moving and that pain radiated down the right leg and that the leg was very sore and tender. There were no marks on appellee’s body but Dr. Boyd found that she was suffering from nervousness, with her spine, tightness in low back and hips, difficulty in moving, leg soreness and that her abdominal organs were sore; that she had difficulty in walking because of numbness in her legs; that she was suffering from headaches; that her back and both legs hurt and her legs felt numb. The evidence indicated that ap-pellee had never before had any type of injury. Dr. Boyd expressed the opinion that appellee had a disc problem in the low back. He stated that he had seen and treated appellee on an average of about three times a week from her first visit to the time of the trial; that he had told appellee that she couldn’t work and that his advice to her ever since the injury was to quit working. Dr. Boyd testified that appellee’s condition was permanent and, in his opinion, she could not obtain and retain a job at shift work standing on her feet six to eight hours per day, five to seven days a week.

Dr. Henry T. Leigh, a medical doctor, examined and x-rayed appellee on March 5, 1965. He testified that his examination of appellee revealed muscle spasm in her neck and from her shoulders to her pelvis; that bending was decreased and all movements of her back were restricted. He stated that one of appellee’s x-rays, plaintiff’s exhibit 4, shows a loss of the normal curvature as a result of muscle spasm. This fact was confirmed by Dr. Carl Marcum who had conducted an examination of appellee at the request of appellant. Dr. Leigh testified that plaintiff’s exhibit 11, which was an x-ray picture of the low back, showed a straightening of the normal curve which was compatable with muscle spasm. This fact was also confirmed by Dr. Marcum. Dr. Leigh expressed the opinion that the probable cause of appellee’s condition was her fall; that she could not obtain and retain a job performing the usual tasks of a workman where she was required to be on her feet, to bend and to stand for extended periods of time or waiting on tables. Dr. Leigh stated that in his opinion such condition of appellee is permanent and she will be handicapped as long as she lives.

Appellee’s sister, Doris Mitchell, had worked two years as a car-hop for the Wagon Wheel in Big Spring immediately prior to appellee’s injury there on March 18, 1963. She testified that she witnessed appellee’s fall; that appellee begun to complain that her back was hurting immediately after the fall and that since then she has complained of her back and legs hurting all of the time; that although on some days she feels better than others, she still always complains of her back and legs hurting. She stated that she had lived with appellee intermittently since the fall and that she usually bought appellee’s groceries.

Dr. Carl Marcum made an examination of appellee on October 19, 1964, at the request of appellant. Dr. Marcum stated that at the time of his examination appellee was complaining of pain in the lower back which was worse when she attempted to do any lifting and that her legs felt heavy. The doctor found that appellee was tender to pressure over the lumbar region, but said that he had no record of any complaints by appellee of any trouble in the area of the neck or spine, or of headaches. Appellant’s exhibit 4 was an x-ray of the coccyx taken by Dr. Marcum. He stated that such x-ray showed abnormality of ap-pellee’s coccyx that could be either congenital or from an injury. Appellant’s exhibit 5 was an x-ray of the lower lumbar vertebra and the upper part of the sacrum. Dr. Marcum stated that exhibit 5 indicated no abnormality in appellee’s lumbar spine, also that appellant’s exhibits 2 and 3 showed no abnormality, and that he found no displacement of any vertebra over another. Dr. Marcum also testified that appellee’s exhibit 4, which was a side view x-ray of appellee’s neck taken by Dr. Leigh on March 5, 1965, showed a straightening of the normal curve of the neek that could have been from muscle spasm but could be from the way the x-ray was taken. Dr. Marcum testified that appellee’s exhibit 11, a side view x-ray of appellee’s lumbar curve was an abnormal situation indicating muscle spasm but that this could be by reason of her position before thev x-ray camera; that appellee’s exhibit 12, a front to back view of appellee’s low back taken by Dr. Leigh on March 5, 1965, showed a slight curvature of the low back. Dr. Marcum also stated that he found specific evidence that appellee had at some time in the past sat down real hard and injured her coccyx and that he had seen x-rays which indicated to him muscle spasm, one of which was in the neck.

The evidence showed that while working at the Wagon Wheel in Big Spring appel-lee’s best earning for any one week was $35.00 including tips and meals. Prior to appellee’s employment at the Wagon Wheel she had worked only one week in her life and that was four years previously. About two months after her injury appellee began work for the Twilight Club in Odessa waiting on tables, seven days a week. Her earnings were $35.00 a week in salary and $5.00 to $10.00 a night in tips. She worked at that job for four and a half months with no time off, and then quit because her back was hurting. She stated that after one or two months she went to work for the Thunderbird Lounge in Midland, working seven days a week as a waitress and bartender for about one month and quit that job because her back was hurting. Her earnings at the Thunderbird were $35.00 a week in salary and $20.00 to $40.00 a night in tips. She left the Thunderbird and after about two months got a job at Buddy’s Drive-In in Odessa as a car-hop. She worked there seven days a week for two months, earning $25.00 a week in salary, $1.25 a day for meals and $5.00 to $6.00 a day in tips. Appellee stated that she left Buddy’s Drive-In because the boss was hard to get along with and she was cheated out of money. She stated she was able to do the work but also testified that she had trouble with her back while working there and that she had to see Dr. Boyd three times a week. After leaving Buddy’s Drive-In she was out of work for about a month and was then again employed by the Twilight Club, earning the same wages and remuneration as she had earned there before. She continued with the Twilight Club for about three months and quit when she got married and moved with her husband to Kermit, where she lived for about six months, during which time she did not work. Appellee testified that during the three months that she was employed by the Twilight Club she went to see Dr. Boyd three times a week and received adjustments which permitted her to continue working. She stated that without such adjustment and treatment by Dr. Boyd she would not have been able to stay on the job.

The evidence shows that appellee separated from her husband on February 18, 1965, and returned to Odessa where she went to work for the Little Ace of Clubs as a waitress and bartender; that her earnings were $40.00 a week in salary and $1.00 to $2.00 a day in tips. On this job she “stocked the beer and things like that, had to lift it” and did not quit until about May 1st, 1965, prior to the trial. In connection with her last employment appellee stated that she was able to stay on the job regular hours at that kind of work. She testified, however, that the work caused her quite a bit of pain and that she went to Dr. Boyd more that she ever had when she was doing only bartender work. She stated that she left the Little Ace of Clubs because her back was getting in bad condition and that she had not worked for anyone since that time.

The evidence further shows that the only type of work which appellee knows is working as a waitress or barmaid; that she receives no child support from the father of the child she is supporting; that she has only been able to live because her sister, mother and friends help her. Appellee testified that at the time of the trial she was still suffering with her back, her legs and with headaches.

It is held that the term “total incapacity” or “total disability” means that an injured person is disqualified from performing the usual tasks of a workman in such a way as to procure and retain employment. Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000. Appellant contends that appellee’s own testimony as above indicated is that she has been able to procure and retain employment since the date of her injury; that for almost two years she was employed by five different employers, and that on jobs subsequent to her accidental injury she earned more money that she was earning at the time of her injury. Numerous cases have held, however, that the fact that a claimant continues to work and earn more money after an injury is not controlling on the question of total and permanent disability, but that it is evidence to be considered with other facts and circumstances before the jury. See Texas Employers’ Insurance Association v. Smith, Tex.Civ.App., 374 S.W.2d 287; Texas Employers’ Insurance Association v. Cummings, Tex.Civ.App., 364 S.W.2d 255. In Davies v. Texas Employers’ Insurance Association (Tex.Com.App.), 29 S.W.2d 987, it is stated as follows:

“ * * * In determining the question of total permanent disability, that determination will not be controlled necessarily by the fact that the injured employee has been able, since the injury, to earn money. While the testimony we have stated tends to show that the employee had not suffered a total incapacity for work, as a proximate result of his injuries, it is not of that nature and character which, as a matter of law, has the legal effect to nullify the testimony which tends to show that he had so suffered. The jury exercised its privilege to decide the issue presented from all the facts in evidence adversely to the defendant in error, and, the verdict being supported by substantial testimony, we are compelled to overrule these assignments.”

In our opinion the record as a whole supports the findings that appellee is totally and permanently disabled and such findings are not against the great weight and preponderance of the evidence. The evidence does show that appellee has been employed about half the time since her injury, by five different employers, and that she earned more money while working for said employers than she was earning at the time of her injury. There is, however, also evidence to the effect that during the entire period of her disability, except when appellee was in Kermit, she was treated by Dr. Boyd about three times a week and that she could not have worked without such treatments; that she has only been able to live and support her child because her sister, mother and friends are helping her.

The court did not err in rendering judgment for appellee for total and permanent disability. Appellant’s points complaining of such action by the court are overruled.

The judgment is affirmed.