author: NORTHCUTT, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. J. D. JENKINS, Appellee.
    No. 7144.
    Court of Civil Appeals of Texas. Amarillo.
    April 23, 1962.
    Rehearing Denied May 28, 1962.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    Yates & Yates, Webb, Schulz & Stokes, Abilene, for appellee.
   NORTHCUTT, Justice.

This is a Workman’s Compensation suit. This action was brought by J. D. Jenkins against Texas Employers’ Insurance Association, workmen’s compensation insurance carrier, to set aside an award of the Industrial Accident Board. It is the contention of Mr. Jenkins that on January 29, 1960, while he was working for Strain Brothers on a road job in Wheeler County that he had a heart attack which was caused by over-exertion in the course of his employment. In answer to the special issues submitted by the court, the jury found that plaintiff on the occasion in question sustained an injury; the injury resulted from an accident; that such injury was sustained in the course of his employment with such employer; that such injury naturally resulted in his incapacity to work; that such incapacity to work was total; that such total incapacity was temporary; that such total incapacity continued for 313 weeks; that such total incapacity began on January 29, 1960; that such incapacity to work was partial as a natural result of such injury from the termination of the total incapacity; that such partial incapacity would be permanent; that the beginning date of such partial injury was January 29, 1960 and that the average weekly wage earning capacity during existence of such partial incapacity was $70.00 per week. Judgment was entered for the plaintiff. From that judgment the defendant perfected this appeal. For convenience the defendant will be designated as appellant and the plaintiff as appellee.

By appellant’s first two points of error it is urged there is no evidence and insufficient evidence to sustain the conclusion of a compensable injury. There is no question but what appellee had a heart attack while he was working for his employer. Appellee was bursting out and' thawing out the road bed, and testified as-follows:

“Q. Okay. Now, on January 29th, 1960, just tell the jury what happened to you. A. Well, we had been bursting out that frozen ground, and we had got about a mile and a half of it bursted out the day before, and the next morning I went and laid in half of it. See, there was another blade helping, but the foreman sent him somewhere else on another job, so that evening I started laying in the other half mile, or three-quarters of a mile, half of it; it was something like three-fourths of a mile, I imagine, and along about two o’clock, I pulled out at the end and started making my turn and the road was so narrow I couldn’t turn in the road, I had to use part of the right of way to turn, and my wheels slid off into the ditch and when it did, the wheels cut right quick and jerked me up and this pain hit me in the chest. I sat there a little bit and I thought ‘Well, I’ll go-ahead and make — complete my turn/ so I backed out in the road there and there was a roller boy there and he come up and asked me what was-wrong, and I said ‘I hurt myself’, I said, T believe you ought to carry me down to the foreman, I might have to go to the doctor’, so he did carry me down to Mr. Price, and Mr. Price carried me to this hospital here at Wheeler.”

Immediately after the attack appellee was taken to the hospital and Dr. Nicholson was the first doctor to treat him. Dr. Nicholson testified appellee was in a pretty bad shape and after a quick examination he started using emergency procedures. Doctor placed him under oxygen arid gave hiiri a hypo for severe pain and' •heart stimulant and later ran an electrocardiogram. Dr. Nicholson diagnosed the appellee’s condition as coronary occlusion and testified as follows:

“That attack, I think, was caused from severe exertion, from the history, and from my examination of him. I found no other physical condition that would suggest disease.”

Dr. Estes, who examined appellee only for the purpose of testifying, diagnosed the appellee’s ailment as that of coronary occlusion resulting in myocardial infarction. Dr. Estes thought the exertion was the cause of the coronary. D.r. Bragdon testified that the electrocardiogram showed evidence of a fairly recent myocardial infarction. There is other evidence especially as to the exertion required in the particular kind of road work appel-lee was doing at the time in question. Ap-pellee had always been a healthy man. We think there was sufficient evidence to sustain the conclusion of a compensable injury. It is stated in the case of Traders & General Insurance Company v. McDaniel et al., Tex.Civ.App., 305 S.W.2d 659 as follows:

“We are unable to agree with the appellant’s construction or interpretation of the testimony. The witness’s opinion that the work in which the deceased was engaged at the time of his death was such as entailed more than ordinary physical exertion is undoubtedly a matter of medical knowledge. We would not hesitate to say it is a matter of such common knowledge that a court might take judicial notice of it. Whether it may have precipitated the heart attack is another thing. The witness said that it did. The weight and credibility of his testimony was for the jury to determine. The appellant has apparently failed to consider that this witness had previously stated on cross examination that he based his opinion of the coronary occlusion upon various objective manifestations at the time of examination of the deceased, one being that
the body was cyanotic, evidencing a bluish or purplish discoloration of the skin due to lack of oxygen in the blood stream. Again, the conflict, if any, was for the jury’s determination. We hold the evidence amply establishes the appellees’ theory of death resulting from an accidental injury in the course of employment by reason of overexertion and strain. Texas Employers’ Ins. Ass’n v. Talmadge, Tex. Civ.App., 256 S.W.2d 945, n. r. e., and the cases cited. Appellant’s first four points are overruled.”

See also Texas Employers’ Ins. Ass’n v. Talmadge, Tex.Civ.App., 256 S.W.2d 945; Carter et al. v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581 by the Supreme Court. We overrule appellant’s first two assignments of error.

By appellant’s third assignment of error it is contended there was a material variance between the pleadings and the proof. The pleadings show appellee was working a maintainer on frozen ground and the strain of operating the heavy equipment caused him to suffer a heart attack. The variance relied upon by appellant is where appellee testified that while he was turning the maintainer around the wheels cut right quick and jerked him up and the pain hit him in the chest. He did not say the jerk caused a heart attack but that was when he felt the pain. See the evidence listed above. The appellant’s third point is overruled.

Appellant’s fourth and fifth assignments of error complain of the admissibility of Dr. Nicholson’s testimony about appellee’s statement with respect to the manner of the alleged accident and as to the appel-lee’s attorney’s argument as sustaining ap-pellee’s credibility. The statement made by the appellee to Dr. Nicholson to which appellant obj ected is as follows:

“A. He stated he had been working with heavy road machinery, on roads that were coated with a heavy layer of ice and it of a necessity caused him to use great exertion and at times would jerk him from one side of the machine to the other; that was, on the seat when they would jerk loose from the ice, and that during the time he was doing this, he felt a severe pain in his side and began to breath very difficult and — well, he said he went out. Of course, I would call that a collapse.”

There was other testimony to the same effect as the history given to the doctor by appellee and was disputed by no one. It was held in the case of Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170 by the Supreme Court as follows:

“Over defendant’s objection that such statements were not res gestae and were hearsay, the trial court permitted Dr. Griggs to testify to what plaintiff told him he and the others had eaten for dinner, made some time after the occurrence to which they related. These were made while plaintiff was violently ill from some cause. The same facts were testified to by other witnesses and disputed by none. It sufficiently appears these statements were made as part of the history of plaintiff’s illness, for the purpose of enabling the attending physician to make a diagnosis of and to treat same, and as the basis of his opinion as to the cause of such illness. From such, and the symptoms, Dr. Griggs diagnoses the case as ptomaine poisoning. It is not an open question in Texas that such evidence is admissible under the above facts and over a general objection. We quote: ‘We find no error in the action of the court in permitting the physician who attended Mrs. Smith during her illness to state what she told him while he was treating her, about her exposure at the place where she left the train, in connection with his own opinion as to the cause of her sickness. The statement was made as the basis of the doctor’s opinion, and not as independent evidence to establish the fact of exposure; even had the latter been the purpose, it would furnish no ground for the reversal of the judgment, as both the wife and the husband had, as witnesses, themselves fully stated every fact upon the subject, and there was no opposing evidence with regard to the circumstances attending their leaving the train, and the exposure that followed it.’ Pullman Palace Car Co. v. Smith, 79 Tex. 468, 14 S.W. 993, 994, 13 L.R.A. 215, 23 Am.St.Rep. 356.
“It is stated in 67 A.L.R. p. 18: ‘It is generally, though not universally, held that statements by an injured or diseased person to a physician as to past matters, while not admissible as evidence of the facts stated, may be testified to by the physician to show the basis of his opinion.’ ”

That portion of the argument made by appellee’s attorney complained of by appellant is as follows:

“ ‘That doctor, Dr. Nicholson, is in the best position of anybody to judge what caused this. Why? Because he saw the man right then, and he could judge all the factors of his physical appearance. He could make up his mind from the way he looked. He could make up his mind from the way this man looked, whether or not something brought about his exhaustion and strain, and then he had proof of asking the man right then for his history when it was fresh in his mind, when the man had every reason on earth to give him history just as it occurred * * *.’
“ ‘Mr. Wilson (Interrupting) We urge to that argument, if it please the Court, the objection urged, which was urged to the examination of Dr. Nicholson upon that point; that is to say, that the examination was improper in its hearsay and self-serving character, and the argument is similarly improper.’
“THE COURT: I will overrule the objection.
“MR. WILSON: Note our exception.’
“Bill of exception number two records the following argument, objecting and ruling:
“‘MR. WEBB: The point still remains that truth sits upon the lips of a dying man. When you bring a man into a hospital who is having a heart attack, and when the doctor asks him what brought this on — may Mr. Wilson have his same objection to all of this so I can continue without being interrupted ?
“THE COURT: Yes
“MR. WILSON: Thank you.
“MR. WEBB: When a man comes into the doctor and is having a heart attack and is under oxygen and struggling to stay alive, if that man is going to tell anybody the truth, in his own self interest, if he wants to live, he tries to tell that doctor everything right then and right there, won’t he? That is what happened here. Dr.’ Nicholson took a history from this man .right then and he formed ‘the opinion that this man’s heart attack was caused by the strain of the work he was doing. This is not a doctor we picked out; that is not a doctor that he came to see and told what happened sometime later; that is the doctor they took him to when they drug him out of the pick-up and hauled him into the hospital, the doctor that treated him and saved his life, and one that has no reason on this earth, ■Lady and Gentlemen, to tell you something he didn’t believe, and surely after fifty years of dealing with this, he would be qualified.’ (Tr. pp. 49, 50).”

We do not believe this argument is reversible error. We overrule appellant’s fourth and fifth points of error.

For the purpose of discussion, appellant combined its sixth, seventh, and eighth assignments of error. These three assignments concern the admissibility of evidence; the court’s charge and the argument of counsel. As to the admissibility to certain evidence being in error, one witness was permitted to testify that you can see a man picks up 100 pounds of weight day in and day out without any apparent trouble, and nothing unusual about it, and then at some time he picks up that 100 pounds and hurts himself. The only connection that this evidence would have with the present case would be just another way of calling to the attention of the jury that the appellee might do the work he was doing for a period of time and then finally be injured in the same work. From a logical standpoint, it might have the connection of explaining what could happen. If such testimony was inadmissible, we think it was harmless error to admit the same. The main difference in the contention of appellant and appellee is as to the test of what constitutes compensable injury. Appellant contended that to meet the test of a com-pensable injury something unusual or out of the ordinary was required, that unusual physical exertion or over-exertion, as distinguished from ordinary exertion, was required, and that, if appellee’s heart attack was the product of gradual development, coupled with ordinary and usual exertion, there was not compensable injury. The contention of appellee was that the real test was whether the man does something and it hurt him, not whether it is unusual and hurts him. The record in this case clearly shows that appellee at the time here in question was not doing his usual kind of work but was unusual and harder work, and the evidence clearly shows more exertion would be used in this unusual work. If an injury is shown to be received by an employee while he is acting within the course of his employment and such injury is the .result of a risk or hazard of the employment it is compensable under the Workmen’s Compensation Act. Aetna Insurance Company v. Hart et vir, Tex. Civ.App., 315 S.W.2d 169, and the cases there cited; Carter et al. v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581 by the Supreme Court. The court’s charge as to injury has been repeatedly approved. Appellant’s sixth, seventh, and eighth points of error are overruled.

The jury found the appellee would be totally incapacitated for 313 weeks; that such total incapacity was temporary and that appellee (after the 313 weeks) would be permanently partially incapacitated. The court submitted Special Issue No. 14 as follows: “What do you find, from a preponderance of the evidence, has been, or will be, the average weekly wage earning capacity, if any, of J. D. Jenkins during the existence of such partial incapacity, if any?” The jury answered: “$70.00 per week.” Appellant by its ninth point of error contends the court improperly subjected appellant, rather than the appellee, to the burden of proof with respect to the amount of appellee’s recovery for partial incapacity. It was undisputed, and the court so found, that application of the statute to the facts to which the parties stipulated produced an average weekly wage of over $140.00. It is not a question of whether the evidence was sufficient to sustain the verdict of the jury in answer to that special issue; but the assignment of error only deals with placing of the burden of proof. It was held in the case of Employers Reinsurance Corp. v. Wagner, Tex.Civ.App., 250 S.W. 2d 420 (N.R.E.) the burden was on appel-lee to prove that his average weekly wage earning capacity after the date of his claimed injury was less than his weekly wage at the time he was injured. Appellant did not offer any evidence as to ap-pellee’s weekly wage earning capacity after appellee’s injury. By some means, in the minds of the jury, the jury found the average weekly earning capacity while ap-pellee was partially incapacitated was $70.00. We are not called upon to pass Upon anything other, than whether the court misplaced the burden of proof, and we cannot so hold. Finding no reversible error the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: McNEILL, Justice.

license: Public Domain

text:
    ROYAL INDEMNITY COMPANY, Appellant, v. William E. YANCEY, Appellee.
    No. 6520.
    Court of Civil Appeals of Texas, Beaumont.

      Feb. 22, 1962.

      Orgain, Bell & Tucker, Beaumont, for appellant.
    Stephenson & Stephenson, Orange, for appellee.
   McNEILL, Justice.

This is a Workmen’s Compensation case. Appellee Yancey, employee, was injured August 21, 1960, while working for Stone & Webster on a construction job building the Gulf States Utilities plant at Bridge City, in Orange County. At the time of his injury he was operating a bulldozer, the weather was wet and much mud existed in the area. He had climbed up to sit down on the seat of the dozer when his feet went out from under him and he fell off the dozer, hitting a cleat on the dozer tire with his back and slipping on down to the ground with one leg pinned under him, leaning up against the side of the dozer. He was unable to get up and called for help. Two fellow-workmen pulled him up. He was helped into the seat of a truck and was taken to First Aid and then on to see a Dr. Howard Williams of Orange. The cause was tried before a jury and from a verdict and judgment awarding appellee total and permanent disability, this appeal was taken.

The first point complained of by appellant is that there was no evidence to sustain the finding of total permanent incapacity. The third point asserts that such finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. The testimony bearing on these questions is summarized as follows:

Testimony of appellee: Before this injury he was able to do just about any kind of hard work and was in A-l condition. In 1956 he had an encounter with the superintendent on a previous job and had been hit by him in the fight. This caused him to be off from work a few days but he lost no great deal of time on account of it. He was 39 years of age, of stocky build and had a farm near Silsbee. He had done much work on it himself, such as building his home, plowing and other things that go with ordinary farming operations, but since his recent accident he had been unable to work on it but had to hire all his labor except that which his wife and children did. At the time of his injury he was operating a bulldozer which is considered hard physical work. Since that time he has worked about half the time but has to take light work only. For some four months previous to a week before the trial he ran an air compressor which is considered light work. His duties as operator of an air compressor were starting the machine, which is done with an electric starter like an automobile would have, opening the air valves, checking the oil, shutting it down at noon and starting it back up and shutting it off at night. For a few days before the trial he was operating a small hydraulically controlled crane with a boom on it for Natkin Construction Company. This machine has four little levers that he can pull, and a seat to sit on. This machine does not jostle or bounce when it is operated. He stated he was able to do this type of work but his back never stopped hurting; he was always in pain even in doing light work but he had to work to support his family, as he had no independent income. He stated he was not able to do heavy work. He obtained his work through announcement of jobs at his union hall. When they call out for heavy bulldozer jobs at the hall he had to pass them up now, although he had followed this work for 14 years. He stated that he had to do light work that does not require lifting, bending, squatting, stooping or strain of any kind on his back.

He had a good sized bruise over his kidney caused by falling on the cleat on the dozer tire. After his injury he stayed on the Stone & Webster payroll for two weeks and then his work was terminated. When hurt he was taken to Dr. Howard Williams at Orange but after two weeks he concluded this doctor was not doing him any good and he refused to go back. Whether he was discharged on account of this, the record is in dispute. Someone suggested that he see Dr. W. W. Glass, Jr., of Port Arthur. He went to see Dr. Glass on September 19, 1960, and this doctor put him in Park Place Hospital for 9 days during which time he was in traction and was given sedatives. After discharge from hospital he continued to see Dr. Glass through October and then was released for work. He stated he told Dr. Glass he was not able to go back to work and Dr. Glass prescribed a back brace which he got and wore quite awhile but it did not help. He was then sent by his attorney to Dr. Covington of Orange who he said gave him a thorough examination.

Appellee further testified that it seemed to him that his back was continually getting worse, and he did not believe he would ever be able to do manual labor again. His legs and hips as well as his back bother him and he sometimes has headaches. He did not believe he would ever be able to do heavy work. On cross-examination he stated there were both heavy and light types of work with the Stone & Webster people but they did not see fit to give him light work; that he had never had back trouble until he fell off the bulldozer. It may be stated here that appellant put in evidence part of appellee’s deposition taken in the case growing out of the affair with a former employer’s superintendent, above mentioned, in which he testified his back was hurt on account of the altercation. That suit was settled a few years back for about $800.

After he was released by Dr. Glass he worked a few days for American Bridge Company operating a welding machine, which was light work. For about the last four months he has worked for Natkin Construction Company in Beaumont, operating the air compressor and light crane mentioned above. He has done some of the same type of work after the accident that he did before. He has never had but one other suit and that was the one settled for $800.

Adin Davis, witness for appellee: Davis saw Yancey fall from bulldozer, went over to him and he was suffering pain and said he had hurt his back; he had a bruised place on his back from this fall as his shirt was torn at the place and witness could see it. He stated further that at a later time Yancey pointed out to him where he was hurting beneath the shoulder blades and below his waist line.

Testimony of Dr. C. M. Covington of Orange for appellee: While X-rays made did not show a narrowing of the disc spaces in Yancey’s back, he was satisfied that he had had and is now having considerable pain, and is further satisfied that Yancey is developing the symptoms of an impinged disc and a man with such a disc cannot do hard manual labor. He testified that his patient has lost most of the feeling in an area of his left leg- and the reflex of one Achilles heel was gone, and that the muscles in his back were tender and sore. This doctor stated the fall he sustained from the dozer would have been sufficient to produce the condition just described, and that Yan-cey’s injury will cause him to be permanently disabled. On cross-examination he said Yancey’s trouble was mostly on his left side; and a myelogram test would have shown whether a disc injury existed, but none was made on Yancey; that X-rays will not always disclose an impinged or injured disc; that while there did not appear to be a narrowing of the spaces between vertebrae, this is not conclusive and he considered Yancey’s trouble to be in the area of the lumbar 2, 3 and 4 region, but it is difficult to pinpoint the exact place in a person as obese as is Yancey.

Appellee’s wife testified: that her husband was well and strong prior to his accident in August, 1960, but since that time he has been unable to do work on the farm or any carpenter work since his injury and his back is not getting better. Yancey stated he was paid as much on the lighter work done after the injury as he had been paid as a bulldozer operator.

Testimony of appellant’s witnesses: Dr. Howard Williams, general practitioner of Orange, testified that Yancey was brought to him on the day of the accident and he complained of being hit on the back from a fall on the right side of his back. X-rays were made but they were negative. This doctor treated him a short time and thought he was then apparently well and able to go back to work.

Dr. James Cloud, orthopedist of Orange, testified: Dr. Williams referred Yancey to him and he examined Yancey one time and that was on September 13, 1960. He stated he found no objective symptoms of back injury and he wrote an opinion after his examination that he did not think the patient had any permanent incapacity from the injury. He ran several different tests on the patient’s back and they all turned out negative.

Dr. W. W. Glass, Jr. for appellant: Mr. Glass testified that he had been an orthopedist in Port Arthur for a number of years; that Yancey came to him with a complaint of pain primarily in his upper right lumbar region with some radiation in his right hip. He did not complain at the time of pain in either leg and stated that pain in the back would sometimes involve the sciatic nerve, but if a person had no such pain in either leg it is significant. On further examination Dr. Glass said he found pain radiating in Yancey’s right hip and later there was pain on his left side. He found no marks of violence or bruise on Yancey’s back; he found some tenderness over the lumbar region but this was based on subjective symptoms. He stated he made the usual tests on the man and they were all negative. X-rays were made of his back and they had no significance. He further stated that objectively he could find no basis for Yancey’s complaints. However, since he was a rather heavy-set man he fitted the patient with a corset or brace for his back as a support as he considered this would be helpful. This doctor put Yancey in Park Place Hospital where he stayed in traction nine days. He was given medicine to relax his muscles, but these things were done purely on subjective symptoms. He saw Yancey several times during the time he treated him. On October 24, 1960 he again examined Yan-cey and from such examination he was of the opinion he was able to go back to work as a bulldozer operator and do ordinary manual labor, and that he had made a complete recovery.

On this summary appellant’s first point is without merit. Is the verdict sustaining total and permanent disability so against the great weight and preponderance of the evidence as to be manifestly unjust ? In view of counsel for appellant’s able argument, we have given considerable attention to this question. In doing so, we have studied the cases cited by appellant, especially Texas Emp. Ins. Ass’n v. Moran, Tex.Civ.App., 261 S.W.2d 855 and Texas Emp. Ins. Ass’n v. Vineyard, Tex.Civ.App., 316 S.W.2d 156. We think, though, there is considerable difference between these cases and the present one. The employee in the one now before us had sustained his injury only about eight months before the trial, and had worked only about half time. He was 39 years old and obese. It was not shown that he could hold and retain employment for a considerable time even doing lighter work, the longest being a period of four months. In the Moran case the employee had passed a physical examination with a new company which employed him and he remained on this one job eleven months, was holding the job at time of trial, had worked overtime every two weeks period of the eleven months, and his wages had been twice increased by his new employer. In the Vineyard case the employee shows even more ability to hold a job with increases in salary and promotion. The facts of the present case fit more nearly those in Superior Ins. Co. v. Burnes, Tex. Civ.App., 278 S.W.2d 934 and Consolidated Casualty Ins. Co. v. Baker, Tex.Civ.App., 297 S.W.2d 706. Upon the point at issue we realize our responsibility. However, we are persuaded that as said by Justice Tirey in the case last cited (p. 717): “The fact that he (employee) was willing to work to earn a livelihood and suffer pain does not take away from him the benefits provided under the provisions of the Workmen’s Compensation Act, Art. 8306 et seq., V.A. C.S.” It must be remembered that the jury was in a more favorable position to hear and determine the facts involved and the weight of the evidence than is this court. We are not convinced that the verdict was manifestly unjust, and consequently overrule appellant’s third point.

The fourth point urges that since appellee testified he was not contending he was totally disabled, this was, in effect, a judicial admission made by him. Appellant bases its point upon appellee’s cross-examination from which we quote: “Q. You are not contending here that you cannot do any work of a remunerative nature; in other words, you are only contending you can do less work than you used to, is that right? A. That’s right. Q. In other words, you say you can’t do the heavy work, but you can do the lighter work that you are now doing, is that right? A. That I am doing now? Q. Yeah. A. .Yes, sir, I can do that now.” This, however, must be construed with other testimony which appellee gave to the effect that he would not be able to do manual labor again, and that while he could do the light work mentioned in this question, this was done in face of constant pain and as result of necessity.

After he was injured, Yancey had gone to Dr. Williams, the company doctor, for some two weeks, and was not satisfied with the help he was getting so he quit going back. The superintendent asked him to return to Dr. Williams, which he refused to do and thereupon Yancey was allowed to testify that the superintendent told him: “You will either go or I’ll fire you.” Proper objection was made at this point to the superintendent’s statement on the ground that it was hearsay and appellant requested the court to instruct the jury to disregard the statement, which was refused. Appel-lee was then allowed to state that the superintendent told him they needed further X-rays of him, and again he quoted the superintendent as saying, “You’ll either go back or I will fire you; I’ll fun (run) you off the job.” Appellee’s further testimony on this point is: “* * * and I said, Well, you might just as well fire me because I’m not going back. He’s had fourteen days to do something for me and he hasn't done a thing.’ So, he had me fired; clocked my card out ... I seen them when they clocked my card out of the office and brought it back in and gave me my check. They wrote my check and carried it out to the master mechanic and when I went to get it, the personnel man ran out and told me they was not going to fire me and three days later, I was laid off because of reduction in force.”

Dr. Williams was appellant’s physician to whom appellee’s employer took appellee when he was injured. The employer’s superintendent would, therefore, have authority from appellant to direct Yancey to return to Dr. Williams for further X-rays. Yancey showed his displeasure with the doctor’s treatment of him and refused to go, thus bringing about the threat as testified to. Under the circumstances we think the testimony was admissible. But if mistaken, we are of the opinion that the refusal of appellee to return merely for X-rays was arbitrary and unreasonable upon his part, and his failure to comply would not aid his cause with the jury. We, therefore, fail to see material error in the admission of the testimony.

The last complaint appellant makes is found in its sixth point which is to the effect that the trial court erred in refusing to allow it to introduce in evidence an excerpt from a medical report of Dr. Joe Dickerson, which appellee had filed with the Industrial Accident Board in his claim on account of his previous injury growing out of the altercation he had with the superintendent on the earlier job in December, 1956. At the time, appellee was under cross-examination by appellant, and he was asked if he had not filed a claim with the Board in that matter in which he asserted he was totally disabled. Appellee having answered that he did not remember this, appellant then offered the excerpt from Dr. Joe Dickerson’s letter, filed in said claim on February 26, 1957, “In my opinion, this man is suffering with a brain concussion and low back strain as a result of his injury of December 28, 1956. He will be totally disabled indefinitely as a result of this injury.” Upon objection that this is hearsay, the court excluded the quoted excerpt. The letter was properly certified to by the Secretary of the Industrial Accident Board, and appellant offered it by way of impeachment and in the nature of admission against interest. It was shown prior to the offer of this evidence that appellee had filed a suit for permanent partial disability of 15 percent on account of the injury of December 28, 1956, and that this suit was settled for about $800. We need not decide whether this evidence was admissible. For present purposes we assume that it was. But its exclusion did not produce prejudicial error. While appellant’s counsel was questioning appellee about his former claim, he was asked whether he had made any claim in the previous claim as to having had bad backaches since his fight and whether his back bothered him. In reply he stated he did not remember since it had been several years ago when the incident occurred. For the purpose of refreshing his memory and also for the purpose of impeachment, the court allowed appellant to admit portions of appellee’s testimony taken in a deposition, in connection with his former suit about a year after the altercation took place. In that suit he claimed that he had had headaches ever since, and that his back bothered him. It also was allowed to offer in evidence appellee’s testimony in said deposition to the effect that the fight must have hurt his back when he was knocked across “stuff” because “my back is bothering me since that time.” Appellee’s deposition testimony further revealed that in explanation of his back trouble, appellee stated he had a hurting in his back at night when he lay down and that he would need a pillow or something under his back to help him. Because the court allowed this evidence given in the former suit to go in, and because of the fact that his suit filed on the previous claim did not assert any claim for total disability, and was settled for the relatively modest amount of $800, we hold the error, if any, in excluding the excerpt from the doctor’s letter was not reversible error. Rule 434, Texas Rules of Civil Procedure.

The judgment of the trial court is affirmed.

STEPHENSON, J„ not sitting.


author: FANNING, Justice.

text:
    Miles MOORE, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 7429.
    Court of Civil Appeals of Texas. Texarkana.
    April 17, 1962.
    E. P. Dee, Houston, for appellant.
    Joe Resweber, Edward J. Landry, Houston, for appellee.
   FANNING, Justice.

Appeal from a summary judgment. Appellant’s Texas chauffeur’s license was suspended for a period of two months.

Appellant’s contention that this cause is moot because his said license expired on April 9, 1962, is overruled. See Department of Public Safety v. Austin, Tex., 354 S.W.2d 376.

The trial court’s judgment was correct since it was conclusively shown that appellant had been convicted of at least four moving violations within a twelve month period. See Subd. 4 of Section 22b, Art. 6687b, Vernon’s Ann.Civ.St.

The judgment of the trial court is affirmed.


text:
    R. C. HALL et al., Appellants, v. H. P. PIWONKA et al., Appellees.
    No. 7154.
    Court of Civil Appeals of Texas. Amarillo.
    April 23, 1962.
    Rehearing Denied May 28, 1962.

      Billy Hall, Littlefield, Huff & Bowers, Lubbock, for appellants.
    Calloway Huffaker and Harold Green, Tahoka, for appellees.
   NORTHCUTT, Justice.

H. P. Piwonka et al., as plaintiffs, brought this suit in Lynn County, Texas against R. C. Hall et al. as defendants, contending the defendants wrongfully diverted the natural flow of surface water and thereby caused the water to flow upon the lands of the plaintiffs and greatly damaging their lands. The defendants filed their plea of privilege asking that the case be transferred to Lubbock County, the place of their residence, and contending there was no exception to exclusive venue in the county of one’s residence. The plaintiffs filed their controverting plea to the plea of the defendants and, among other matters, alleged that this was a suit for the recovery of damages to the land, which land was located in Lynn County, Texas, and that the Court in Lynn County had jurisdiction by virtue of Subdivision 14 of Art. 1995, Vernon’s Ann. Tex.St. Plaintiffs, in their controverting plea, besides setting out Subdivision 14, also set out Subdivision 29a, 9 and 4 of Art. 1995, V.A.T.S. The trial court overruled the defendants’ plea of privilege, and from that order the defendants perfected this appeal. For convenience, the defendants will hereafter be referred to as appellants and the plaintiffs as appellees.

Since we are of the opinion under this record that this case is controlled by Subdivision 14 of Art. 1995, we will not consider the other Subdivisions any further. Subdivision 14 of Art. 1995 is as follows:

“Lands. — Suits for the recovery of lands or damages thereto, or to remove encumbrance upon the title to land, or to quiet the title to land, or to prevent or stay waste to lands, must be brought in the county in which the land, or part thereof, may lie.”

The plaintiffs introduced in evidence their petition and controverting affidavit which disclosed that their suit was for damages to the lands situated in Lynn County, Texas. The controverting affidavit was sworn to and the original petition was referred to and made a part of said affidavit for all purposes, the same as if the original petition was copied in full in the affidavit. There was testimony as to damages to the land and also as to land being in Lynn County, and since the trial court overruled the plea of privilege, we must assume the court held the land, or a portion thereof, was in Lynn County. We are of the opinion there was sufficient evidence to sustain the holding of the trial court in overruling defendants’ plea of privilege. It was held in the case of Advanced Exploration Co., Inc. v. Spires, 256 S.W.2d 247 as follows:

“It is our conclusion that the trial court made the correct conclusion of the law as applicable to this case. Appellant introduced in evidence his petition and controverting affidavit which disclosed that his suit was for damages to lands situated in Nolan County, Texas. The evidence was uncontro-verted that the lands described in plaintiff’s petition and in the controverting ' affidavit were, in fact, situated in Nolan County, Texas. By making this proof, appellee met the burden required of him under the law to maintain venue in Nolan County under Section 14, Art. 1995, Vernon’s Annotated Revised Civil Statutes. Ross v. Martin, Tex.Civ. App., 225 S.W.2d 220 (Mandamus overruled); Longhorn Trucks, Inc. v. Bailes, Tex.Civ.App., 225 S.W.2d 642 (Mandamus overruled); Pickens v. Harrison, Tex.Civ.App., 231 S.W.2d 812; Cree v. Cluck, Tex.Civ.App., 246 S.W.2d 337; Stephenville Production Credit Ass’n v. Rockwell, Tex.Civ. App., 250 S.W.2d 476; Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69.”

The Supreme Court held in the case of Piazza v. Phillips et al., 153 Tex. 115, 264 S.W.2d 428, as follows:

“The correct rule is that stated in Advanced Exploration Co., Inc. v. Spires, Tex.Civ.App., 256 S.W.2d 247, no writ history, and those cases therein cited as authority for its holding.”

The judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    JOSEY-MILLER COMPANY, Inc., Appellant, v. L. E. SHEPPARD, Appellee.
    No. 6540.
    Court of Civil Appeals of Texas. Beaumont.
    April 5, 1962.
    Rehearing Denied May 16, 1962.
    Marcus & Weller, Beaumont, for appellant.
    Stephenson & Stephenson, Orange, for appellee.
   STEPHENSON, Justice.

This is an appeal from an order of the trial court overruling defendant’s plea of privilege. Plaintiff’s cause of action is one for damages arising out of a collision between plaintiff’s automobile and defendant’s truck. The collision occurred in Orange County where this suit was brought. The sole question raised is whether the driver of defendant’s truck was acting in the scope of his employment for defendant at the time of the collision. It is the contention of the defendant that the evidence shows, as a matter of law, that the driver had departed from his duties as defendant’s employee and was on a personal mission at the time of the collision. The parties will be designated here as they were in the trial court.

There were no findings of fact filed in this cause. The rules of law which this court must follow are clear, under this circumstance.

“The trial court having overruled appellant’s plea of privilege, in the absence of findings of fact, we must presume that all fact issues which the pleadings and evidence will support, were resolved in favor of the judgment rendered. York v. Wells, Tex.Civ. App., 299 S.W.2d 716.”
“On appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment.” James v. Drye, 159 Tex. 321, 320 S.W.2d 319.
“In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto ‘it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.’ ” Renfro Drug Company v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613.

The evidence shows that the driver was a regular employee of the defendant whose business was located in Beaumont, Texas. On the day of this collision the driver was paid for a full days work. He went to work at 7:00 A.M. and was off from work at 4:30 P.M. The collision occurred between 1:30 and 2:00 P.M. The driver was operating one of defendant’s trucks and made a delivery of feed from Beaumont to Bridge City, which is in Orange County. Part of the load of feed was to be returned to Beaumont, and several sacks of feed were still on the truck at the time of the collision. The driver of the truck testified that he decided to buy some meat for his own personal use, and instead of returning to Beaumont, the way he had come, he took a different route. The collision occurred before he had arrived at the place he intended to buy the meat. The evidence also shows the route he was taking was 5.4 miles further back to Beaumont than the route he had taken first in making his feed delivery. On the other hand, the evidence also shows the following: the route first taken to deliver the feed was under construction at the time, drove slow, and was rough; that the second route taken at the time of the collision was better traveling, was safer, and would not require more time; the defendant’s driver testified he was taking the truck back to Beaumont at the time of the accident.

If there had been only one route to Beaumont, and the driver of the truck, in returning the truck to the defendant’s place of business, had intended to stop on this route and buy some meat for his own use, under the rule of law set out in Southwest Dairy Products Co., Inc. v. DeFrates, 132 Tex. 556, 125 S.W.2d 282, 122 A.L.R. 854, this would have been a mingling of the personal purpose of the driver and the defendant’s business. While there is a mingling of the master’s business with the servant’s business, the relation of master and servant is not suspended, and the master is still responsible for the acts of his servant. The fact that there were several routes back to Beaumont, and the one chosen by the driver was not the shortest, does not mean there was a complete departure or turning aside from defendant’s business. There were the other factors to be considered involving the discretion of the driver. The fact remains, the driver was still taking a route back to Beaumont, and was still returning the truck to his employer’s place of business; and considering the evidence most favorable to the judgment, was still engaged in the scope of his employment, even though he intended to accomplish a mission of his own at the same time.

The judgment is affirmed.


author: RICHARDS, Justice.

text:
    W. Owen BARKER, Appellant, v. Maurice E. KIDD, Appellee.
    No. 10963.
    Court of Civil Appeals of Texas. Austin.
    May 9, 1962.
    Koehne, Fulbright & Winniford, Waco, for appellant.
    Newman & McCollum, Brady, for appel-lee.
   RICHARDS, Justice.

Maurice E. Kidd, appellee, instituted suit in the District Court of McCulloch County against W. Owen Barker, appellant, to recover damages to and loss of use of his automobile arising out of a collision with an automobile operated by appellant. Appellant answered by general denial and plea of contributory negligence and in the alternative alleged that the collision was the result of an unavoidable accident. Pursuant to Rule 216, Texas Rules of Civil Pro-dure, on March 5, 1959, appellant demanded a jury and paid the jury fee.

The case was set for trial on May 15, 1961 but no jury was summoned or empaneled for the week beginning May 15, 1961. When the case was called for trial on May 15, 1961 neither appellant nor his counsel were present in Court although appellant’s counsel was advised by appellee’s counsel on March 29, 1961, that the case had been set for trial on May 15, 1961. No motion for continuance having been filed or request for postponement having been made to either the Trial Court or appellee’s counsel by appellant’s counsel, the case proceeded to trial before the Trial Court without a jury. The Trial Court after hearing the testimony of appellee who was the sole witness in his behalf, rendered judgment in favor of appellee in the sum of $1330.00.

Appellant thereafter filed his motion for new trial alleging that appellant’s counsel had been engaged in the trial of a cause which commenced in McCulloch County on May 8, 1961 but which was not concluded until May 18, 1961, and therefore it was impossible for him to appear for the trial of the case at bar on May 15, 1961. Appellant further alleged that he had a meritorious defense in that he expected to offer proof that appellee was guilty of contributory negligence which was the proximate cause of the collision and resulting damages and that the damages claimed by and awarded to appellee were grossly excessive. The Trial Court overruled the motion for new trial and appellant perfected this appeal.

Appellant’s sole point of error is that the judgment should be reversed because the Trial Court was without authority to enter a judgment since appellant having made a seasonable and legal demand for a jury and paid the jury fee to the proper officer, his right to trial by jury became fixed and inviolate.

The judgment entered by the Trial Court recited that a jury was waived. It is admitted by appellant that neither appellant nor his counsel appeared for the trial on May 15, 1961 and that neither the Judge of the Trial Court, the appellee nor the attorney for appellee was notified that counsel for appellant was engaged in another trial before the District Court of McCulloch County.

The right of trial by jury is granted by the Constitution to all litigants who demand such tidal in the manner prescribed by law. Sec. 15, Art. I, Constitution of Texas, Vernon’s Ann.St.; Rule 216, T.R.C. P. Having properly and seasonably demanded a jury and paid the appropriate fee to the proper officer, appellant’s right to trial by jury became fixed and inviolate. The fact that neither appellant nor his counsel who had demanded and paid the fee for a jury were present when the case was tried did not amount to a waiver or impair appellant’s right to have the issue of contributory negligence on the part of appellee raised by appellant’s pleadings tried by a jury. Finnell v. Byrne, Tex.Civ.App., 7 S.W.2d 139, no writ history; Panhandle & S. F. Ry. Co. v. Lawless, Tex.Civ.App., 94 S.W.2d 213, no writ history.

Appellee contends that the rule of law stated in the cited cases, which were decided before the effective date of the Texas Rules of Civil Procedure, is clearly wrong and in any event has been overruled by the Supreme Court of Texas in Slay v. Burnett Trust Co., 143 Tex. 621, 187 S.W.2d 377. With these contentions we are unable to agree. When Rule 216 was derived from Arts. 2124 and 2125, R.C.S.1925, no fundamental changes in the right to trial by jury were made by the adoption of the rule. The holding by the Supreme Court in the Slay case that where upon a trial the evidence is undisputed the Trial Court may withdraw the case from the jury and enter judgment, is not applicable to the factual situation here presented.

Appellee was the sole witness testifying in his behalf and was therefore an interested witness. The general rule is that the testimony of interested witnesses docs no more than raise a fact issue to be determined by the jury and is sufficient to require the credibility of the testimony to be submitted to the jury. Therefore the un-contradicted, uncorroborated testimony of a party to the suit such as appellee will not authorize or support an instructed verdict. James T. Taylor and Son Inc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S. W.2d 371, 376; Flack v. First National Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628, 633. The Trial Court erred in rendering judgment for appellee without submitting the factual issue raised by the uncorroborated testimony of appellee to be, passed upon by a jury.

Appellant’s point of error is sustained and the judgment of the Trial Court is reversed and the cause remanded.

Reversed and remanded.


text:
    A. B. STEWART, Appellant, v. P. C. STEWART, Appellee.
    No. 7420.
    Court of Civil Appeals of Texas. Texarkana.
    May 1, 1962.
    Herbert Finkelstein, Houston, for appellant.
    DeLange, Hudspeth & Putman, Houston, for appellee.
   FANNING, Justice.

P. C. Stewart, as plaintiff, sued Bernard C. Malcuit and A. B. Stewart, as defendants, seeking declaratory judgment declaring plaintiff’s ownership of a certain described lot in Harris County, Texas, removing all clouds from plaintiff’s title thereto as constituted by all claims of defendants, and to recover a deficiency judgment, alleging plaintiff’s ownership of a note secured by deed of trust upon such property, executed by defendant Malcuit and payable to the order of defendant A. B. Stewart, which note was assigned by defendant A. B. Stewart to plaintiff P. C. Stewart, with recourse; alleging default in payment of such note, foreclosure of the lien in the deed of trust by trustee’s sale, purchase of the land at the trustee’s sale by plaintiff, resulting in a deficiency which was asserted by plaintiff against both defendants. Defendant Malcuit did not file an answer. Plaintiff filed a motion for summary judgment accompanied by exhibits and affidavits. Defendant A. B. Stewart contested the motion for summary judgment and filed affidavits. The trial court severed the action for deficiency judgment, and rendered summary judgment on the action to confirm the trustee’s sale and quiet title in favor of plaintiff against defendants. Defendant A. B. Stewart has appealed and presents three points on appeal.

By his first point appellant contends that since the trustee posted notices of sale on August IS, 1960, and sold the property on September 6, 1960, the sale was invalid for lack of notice because September S, 1960 (the 21st day) was Labor Day, a state holiday. By his second point appellant contends to the effect that the trustee’s sale was invalid because the property had a fair market value of $12,500.00, was sold to the holder of the note for $2,500.00, that defendants had no actual notice of the sale, and that these facts in conjunction with the above described manner of advertising the sale, requires the court to set aside the ■sale as a matter of equity.

The deed of trust in this case provides for sale at trustee’s sale, after default * * * as provided in Article 3810, Revised Civil Statutes of Texas for 1925, after notice as provided in said article (but without any other notice than is required by said article 3810) * * *

Said Article 3810 provides as follows:

“All sales of real estate made under powers conferred by any deed of trust or other contract lien shall be made in the county in which such real estate is situated. Where such real estate is situated in more than one county then •notices as herein provided shall be .given in both or all of such counties, and the real estate may be sold in either county, and such notice shall designate the county where the real estate will be sold. Notice of such proposed sale shall be given by posting written notice thereof for three consecutive weeks prior to the date of sale in three public places in said county or counties, one of which shall be made at the court-bouse door of the county in which such sale is to be made, and if such real ■estate be in more than one county, one at the courthouse door of each county in which said real estate may be situated, or the owner of such real estate •may, upon written application, cause the same to be sold as provided in said ■deed of trust or contract lien. Such sale shall be made at public vendue between the hours of 10 o’clock a. m., and four o’clock p. m. of the first Tuesday in any month. When any such real estate is situated in an unorganized county, such sale shall be made in the county to which such unorganized county is attached for judicial purposes.”

The record in this case shows that the mortgagor was in default in the payment of the note secured by the deed of trust and that written notices were posted on August 15, 1960, at the courthouse door of Harris County, Texas, and two other public places in said county, of the trustee’s sale to be held on the first Tuesday in September, 1960, same being the 6th day of September, 1960, and the sale was held on that date, at 11:19 o’clock A.M. At such sale, the property was struck off to appellee upon his bid .of $2,500.00, that being the highest and best bid received.

Said Article 3810 does not provide for the giving of personal notice of a trustee’s sale to either the mortgagor or the endorser of the mortgagor’s note.

The record in this case shows that the written notices in question were posted at the courthouse door of Harris County, Texas, and two other public places in Harris County, Texas, for three consecutive weeks prior to the day of sale. Art. 3810 contains no provision which would make material the fact that the 21st day of the statutory period might fall on a state holiday.

A trustee’s sale will not be avoided merely because of inadequacy of price; for avoidance and in conjunction, there must be irregularity, though slight; which irregularity must have caused or contributed to cause the property to be sold for a grossly inadequate price. Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, writ refused.

We hold that under the record in this case the notices of the trustee’s sale were posted in accordance with said Article 3810; that there was no irregularity in the sale, and that the trustee’s sale was valid. Appellant’s first and second points are overruled.

We further hold that the action of the trial court in severing the cause of action to confirm the trustee’s sale of the realty and to quiet title to the realty from the cause of action to recover a deficiency judgment does not constitute error. Rule 41, Texas Rules of Civil Procedure. Appellant’s third point is overruled.

The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    James Ray McCAULEY, Appellant, v. HOBBS TRAILERS, a Division of Fruehauf Trailer Company, et al., Appellees.
    No. 16326.
    Court of Civil Appeals of Texas. Fort Worth.
    April 27, 1962.
    Rehearing Denied May 25, 1962.

      Don Gladden, Fort Worth, for appellant.
    Carlos C. Ashley, Jr., Mehl & Williams and Milton J. Mehl, Fort Worth, Attorneys for Appellee, Hobbs Trailers, a Division of Fruehauf Trailer Company.
    Flowers & Flowers and John Flowers, Fort Worth, Attorneys for Appellee, Hobbs Trailers Federal Credit Union.
   MASSEY, Chief Justice.

James Ray McCauley filed suit as plaintiff against his employer, Hobbs Trailers, a Division of Fruehauf Trailer Company, for the collection of $255.00 in wages allegedly wrongfully withheld, plus attorney’s fees. The employer impleaded Hobbs Trailers Federal Credit Union of Fort Worth, Texas. Trial was before the court without intervention of a jury, and the court, being of the opinion that both the law and the facts were against the contentions of said plaintiff, entered' a take nothing judgment. Plaintiff perfected an appeal to this court.

Judgment affirmed.

In our discussion we will term the parties as plaintiff, employer and Federal Credit Union. The plaintiff, while in the service of his employer, desired to receive a loan from the Federal Credit Union, organized and operated with membership confined to employees of the aforesaid employer. Provision for such organization and operation of the Federal Credit Union is to be found under U.S.C.A., Title 12, “Banks and Banking”, Ch. 14, “Federal Credit Unions”, § 1751 et seq.

Plaintiff’s application for membership in the Federal Credit Union was accepted, and his application for loan was approved. Said credit union advanced the money to him upon security which included an assignment of a part of his future w.ages to the extent of $15.00 per week. The employer made subsequent payment of wages to the plaintiff, deducting from each weekly pay check the sum of $15.00, which amount it paid over to the credit union, and that institution credited each of such payments upon the loan it had made to plaintiff. Subsequently the plaintiff married, his changed status resulting in the constructive endowment in his wife of a community interest in wages to be earned during the period of coverture. Notices were served disavowing the existing wage assignment, coupled with the demand upon the employer that wages thereafter earned should be delivered in their entirety unto the plaintiff, with no amount deducted therefrom for delivery to the Federal Credit Union. The employer refused to honor the notice and instruction, and continued to make the wage deductions of $15.00 out of each weekly pay check of plaintiff, delivering the same to the credit union, which continued the procedure of crediting the payments upon plaintiff’s loan. After the deductions had amounted to the sum of $255.00 plaintiff filed his suit, and the defendant employer im-pleaded the Federal Credit Union with a prayer that said institution reimburse the said $255.00 delivered to it under the wage assignment, if and in the event it should ultimately be determined that the plaintiff was entitled to prevail upon his claim.

In the briefs the parties found their contrary contentions upon the law, rather than upon the facts. We have, however, reached the conclusion that the employer is entitled to have the judgment of the lower court affirmed upon fact, rather than upon law. Specifically, we are of the opinion that the plaintiff, on trial of the case, failed to discharge the burden incumbent upon him to establish by a preponderance of the evidence that the Federal Credit Union (which advanced the loan to him and took the wage assignment as security) was a “loan broker” under the definition of Vernon’s Ann. Tex. St., Title 107, “Pawnbrokers and Loan Brokers”, Art. 6165a, “Loan brokers and regulations”. The term “loan broker” is defined under section 2 of said article as “a person, firm, or corporation * * * who pursues the business of lending money, purchasing salaries and taking for security for the payment of such loans and interest thereon an assignment of wages * *

There is no question in our minds but that a Federal Credit Union, organized and operated strictly within the authority of the Federal Act heretofore referred to, could grow to such a size that the performance of the functions and purposes of its creation could amount to a business. If such a credit union did grow to such a size then there would be no doubt that its loan and security transactions would be the result of the pursuit of a “business of lending money, purchasing salaries and taking for security for the payment of such loans and interest thereon an assignment of wages * * * ” for, as we understand it, such is the very function of Federal credit unions.

“Business” in its narrower sense connotes a distinctive business, i.e., an occupation or employment habitually engaged in for the purpose of profit or improvement. 12 C.J.S. p. 765, “Business—As a Noun— Narrower Sense”; C. D. Shamburger Lumber Co. v. Delavan, 1937 (Tex.Civ.App., Amarillo), 106 S.W.2d 351, error refused. From our examination of the record in the case before us it could not be said that it was indisputably factually established that the Federal Credit Union’s activities, as of the time the transaction with plaintiff occurred, amounted to such a business. As applied to Federal credit unions’ activities generally, we believe the foregoing definition of the term “business” to be the one proper to be applied in the determination of whether such activities come within the meaning and intent of V.A.T.S., Art. 6165a.

If raised as a fact issue it must be presumed that the plaintiff failed to obtain the necessary finding by the trial court as the fact finding agent. Indeed, we find in the court’s “conclusions of law” the following: “Third Party Defendant and Cross-Plaintiff, HOBBS TRAILERS FEDERAL CREDIT UNION, is not in the ‘business’ of lending money as the legislative intent is expressed in Texas Civil Statutes, Article 6165a, * *

If the activities of the Federal Credit Union, as of the time of the transaction with plaintiff, did not amount to such a “business”, then the provision of Sec. 6, Art. 6165a, relative to wage assignments by married men, would not have application. 6 Tex.Jur.2d, p. 406 “Assignments”, sec. 6 “Wages and related rights” (5 Tex.Jur., p. 14, sec. 11); Mason v. Green, 1920 (Tex.Civ.App., Texarkana), 226 S.W. 829. Section 6 of the article provides that assignment of wages to a loan broker by a married man is void unless given with the consent of his wife, who must evidence her consent in writing and by separate acknowledgment.

As heretofore indicated the parties to the appeal have primarily briefed their contentions on the law rather than upon facts of the particular case. The employer’s general premise is that the Texas statute could have no application to Federal credit unions, organized and operated under authority of Federal statutes, and that the State of Texas is without power, the field having been preempted by the Federal government. To this theory we cannot subscribe. Furthermore, nothing in the Federal statutes purport to authorize and legalize any form of security taken by a Federal credit union which would be illegal and void if taken by another lending agency. It is true that a rate of interest is provided which would be usurious under our statutes, and under the laws of the State of Tennessee. By a decision of that sister state such provision was upheld. Van Pelt v. P. and L. Federal Credit Union, 1955 (Court of Appeals of Tennessee), 282 S.W.2d 794, certi-orari denied. Decision of that question would have no bearing upon the question posed in the instant appeal. Propriety of the judgment in this case rests upon the facts, not law.

Judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Carrel MAYNARD, d/b/a Carrel Maynard & Company, Appellant, v. Clinton J. GARBER et al., Appellees.
    Court of Appeals of Kentucky.
    March 2, 1962.
    Rehearing Denied June 15, 1962.
    Joe P. Tackett, Edmond H. Tackett, Prestonsburg, for appellant.
    C. Kilmer Combs, Prestonsburg, for ap-pellees.
   WADDILL, Commissioner.

Appellees, Clinton Garber and his wife, brought this action seeking to recover from appellant the sum of $3,806.90, the balance allegedly due on a debt. Appellant denied that he was indebted to appellees, contending that the sum sought by appellees represented a business expense which was incurred pursuant to a partnership arrangement between them, and by counterclaim sought a settlement of their partnership affairs. Following a trial of the case the court found that the parties had not entered into a partnership, dismissed the counterclaim and held that appellant was justly indebted to appellees in the sum of $1519. The appeal from the judgment accordingly entered raises the question of whether the court erred in finding that a partnership had not existed.

The evidence introduced in appellees’ behalf was to the effect that during February, 1959, appellant sought to induce appellees to enter .into a partnership concerning the operation of appellant’s construction business. Appellees, who were engaged in buying and selling heavy construction equipment, refused to become partners of appellant but they did consent to sell appellant a bulldozer. After appellees had obtained a suitable bulldozer at a cost exceeding $7000, they learned that appellant was in financial difficulty and was unable to pay for it. During their negotiations appellant became ill and appellees advanced money to meet appellant’s payroll, and performed other services which were necessary to operate appellant’s business and to conserve his credit. When appellant recovered from his illness he refused to reimburse appellees for the expenditures made in his behalf. Thereupon, appellees took possession of the bulldozer and brought this action to recover the money they had advanced in an effort to save appellant’s business and also the reasonable rental value of the bulldozer for the period it was used in appellant’s business.

The evidence presented in support of appellant’s side of the case tended to show that the parties had entered into an oral partnership agreement on February 21, 1959, concerning the operation of appellant’s construction business. Shortly thereafter appellant became ill and appellees took charge of the operation of their business venture. In April, 1959, appellant discovered that appellees had not only reneged on their agreement to furnish certain financial support to the partnership business but had also violated their agreement by withdrawing certain sums of money from the partnership account and had otherwise mismanaged the business so as to seriously damage it.

The evidence tending to prove the existence of a partnership was not so convincing as to establish it as a matter of law. Therefore, the question to be resolved is one of fact. The trial court chose to accept the evidence which supported appel-lees’ side of the case. Since the court’s finding is supported by substantial evidence having probative value we will not disturb it.

Judgment affirmed.


author: MOREMAN, Judge.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Geraldine THOMAS, Appellee. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Virgil THOMAS, Jr. et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    As Modified on Denial of Rehearing June 15, 1962.
    Faurest & Collier, Elizabethtown, Morris & Garlove, Louisville, for appellant in both cases.
    Raymond C. Arny, William A. Miller, Louisville, for appellees.
   MOREMAN, Judge.

The first of the above styled cases is an appeal as a matter of right. The second case is before us on motion for appeal. The cases have been consolidated.

Appellant, Government Employees Insurance Company, issued a liability policy to Chriss Yoder, covering a Sunbeam automobile under which appellant undertook:

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
“A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’ sustained by any person;
“B. injury to, or destruction of property, including loss of use thereof, hereinafter called ‘property damage’;
arising out of the ownership, maintenance or use of the owned automobile, or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit as it deems expedient.”

After the issuance of the policy, Yoder was involved in an automobile accident which resulted in verdicts against him in the total amount of $5,234. The question on this appeal is whether the policy covers that liability. The lower court held that it does.

Prior to the accident Yoder owned three vehicles; the Sunbeam automobile covered by the policy, a Harley-Davidson motorcycle and a Chevrolet automobile. Some time before the accident the Sunbeam became disabled and was placed in a garage for repairs. About six weeks before this time Yoder had surrendered possession of his Chevrolet to Harry E. Williams and although there is some indication that Williams desired in the future to buy the automobile, the meager testimony on this point indicates that at most Yoder had surrendered the car in the hope that Williams would buy it from him. Williams later testified:

“A. It was a 1950 Chevrolet.
“Q. Tell the Court whether or not you and Chriss Yoder had made a contract involving that automobile shortly prior to the happening of this accident ?
A. We did. We had come to a verbal agreement that I was to buy the car and pay him as soon as I could get the money, and then it would be my own automobile.
“Q. Now, after the making of this verbal agreement that you have mentioned did Yoder give you possession of the automobile? A. He did.”

In addition, there had been no transfer of title under KRS 186.020. We recognize that compliance or non-compliance with the provisions of this statute is not conclusive of the ownership of a car. Higginbotham v. Higginbotham’s Trustee, 253 Ky. 218, 69 S.W.2d 329; Moore v. Wilson, 230 Ky. 49, 18 S.W.2d 873. However, the failure to comply, in itself, is of some evidentiary value which, when taken with the testimony, convinces us that the agreement expressed little more than the hope that some time in the future there might be a sale of the automobile.

When the Sunbeam belonging to Yoder first became disabled he rode his motorcycle to and from Fort Knox (both he and Williams were in the Armed Services) and then it too became mechanically defective. He re-possessed his Chevrolet automobile from Williams and thereafter — within the next day or two — -Yoder, while driving the Chevrolet, became involved in the accident which resulted in the judgment above mentioned.

It will be noted in the provision of the policy above quoted that coverage extends to the use of the owned automobile “or any non-owned automobile.” The policy defines “non-owned automobile” as follows:

“ ‘Non-owned automobile’ means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile-”

And defines “temporary substitute automobile” as follows:

“ ‘Temporary substitute automobile’ means any automobile or trailer, not 'owned by the named insured, while temporarily used as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.”

The first definition, if taken alone, indicates by the qualifying phrase “other than a temporary substitute automobile” that coverage extends to the automobile which replaced the one named in the policy even though the insured owned both of them. However, when the policy specially defines “temporary substitute automobile” it is made plain that such an automobile must be one that is not owned by the insured.

We have' concluded that the terms of the policy that insured the Sunbeam car did not extend to the Chevrolet car which was involved in the accident and no recovery should be had upon said policy.

In the first of the above styled cases the judgment is reversed and in the second case the motion for appeal is granted and the judgment is reversed.


author: MAUGHMER, Commissioner.

text:
    Jay Hugh RODENBERG, by Walter Rodenberg, His Next Friend, Respondent, v. Donald Wayne NICKELS, Appellant.
    No. 23468.
    Kansas City Court of Appeals. Missouri.
    April 2, 1962.

      Ike Skelton, Newton R. Bradley, Lexington, Skelton & Bradley, Lexington, of counsel, for appellant.
    D. W. Sherman, Jr., William Aull, III, Lexington, Sherman & Sherman, Aull & Aull, Lexington, of counsel, for respondent.
   MAUGHMER, Commissioner.

This is a damage suit for personal injuries. It arose out of an automobile collision which occurred at a highway intersection in Lafayette County,. Missouri. Plaintiff, Jay Hugh Rodenberg, by his next friend, had the verdict and judgment for $14,070. Defendant Donald Wayne Nickels has appealed.

At the time of this accident County Route “D” was a black top road running north and south. New U. S. Highway 24 runs east and west and intersects Route “D”, but not at an exact right angle. The intersection of these highways where the accident occurred was graveled. At approximately 6:00 p. m. on Saturday, November 1, 1958, plaintiff, then 16 years of age, was driving his father’s Chevrolet pick-up south on Route “D”. Defendant, accompanied by a boy named Danny Wilson, was driving a 1955 Ford sedan east on Highway 24, which highway had not been completed and was not open for travel by the public. The weather was clear. The roadways were dry. No other vehicles were in the immediate vicinity. Both cars had their headlights on and there is no suggestion that either driver had been drinking.

Plaintiff testified that he approached the intersection at a speed of 20 to 30 miles per hour; that he saw defendant on top of a hill to the west and noticed him a second time when plaintiff was “approximately 110 to 120 feet” from the intersection and that “defendant’s vehicle was then %>ths of a mile away”. Plaintiff said he slowed down but did not stop before the collision which occurred when he “had my front end off the pavement, but I suppose the bed of the truck was still on the pavement”. Plaintiff said he heard “brakes squealing”, glanced through his window, saw defendant’s car “on the south side of the south half of the pavement coming towards me sliding”. He said defendant’s car slid into the right rear of the pick-up, and turned it over into the ditch on the east side of Route “D”, headed north. The Ford came to rest on the south side of the pavement, east of the intersection, lying on its side and headed north.

It was defendant’s version that as he approached the scene his speed was approximately 65 miles per hour. He had never traveled this highway before and had passed through or around some barricades to enter upon it. He said he saw plaintiff’s truck before it entered the intersection and when it was back “around the ditch line”. He said plaintiff at the time “was going slow enough, I thought he was going to stop”. He gave it as his best judgment that when he first realized plaintiff was not going to' stop, he was still traveling about 65 miles per hour and was approximately 200 or 250 feet from the point of collision. He said he applied his brakes and “pulled to the right”, hut “my left front fender hit his right rear side — about the rear wheel, rear fender”.

Trooper John W. Wright of the Missouri State Highway Patrol, arrived at the scene before the cars had been moved. He found defendant’s Ford in the south drainage ditch of Highway 24, east of the intersection, and plaintiff’s car in the east drainage ditch of Route “D”. There were sidewise sliding tire marks for a distance of 57 feet made by the pick-up. The trooper stated that Highway 24 was not open for travel at the time, and there was a “closed” sign at Levasy, where defendant said he entered upon it. The trooper measured skid marks made by defendant’s car for a distance of 198 feet west of the place of collision.

Plaintiff recalls walking away from the accident toward his home, which was nearby. When he arrived there he was accompanied by defendant and Mr. Alvin Bord-man, a neighbor. In describing his injuries apparent to him at the time, plaintiff said: “I had a cut across my nose, and I had just pieces of — slivers of glass in my head where I went through a window; and my back at this time had started to hurting me and I had a little trouble walking; my back and legs started to hurting me”.

On the evening of the accident plaintiff was taken to Wellington and there saw Dr. Armbruster, who gave him pills to ease the pain, cleaned up the cuts, stopped the bleeding and told him to come back on the following Monday for x-rays.

Dr. Ben H. Brasher, M. D., Lexington, saw plaintiff on Monday, November 3, 1958, at his office. Dr. Brasher testified that he found lacerations on the face; that the patient walked with difficulty, and there were bruises over the right kidney. X-rays revealed a “fracture of the second, third and fourth transverse processes on the right side”. He sent him to the hospital that evening. Examination the next day revealed “a very mild muscle spasm” of the neck, which the doctor described as resulting from a “whiplash” injury. Plaintiff remained in the hospital 17 days and until November 20. This doctor prescribed keeping him on a board mattress, hot packs to his back, routine treatment to relieve muscle spasms, and no strenuous exercise. Dr. Brasher saw plaintiff thereafter on the following December 13th, January 10th, February 6th and October 3rd. He found the bones were being healed by calcium deposits, but he still had a mild whiplash. He said the third process had been completely broken and had healed with some deformity. This doctor, a general practitioner, thought the patient should see an orthopedist and recommended Dr. Williamson and Dr. James.

Dr. Otis E. James, Jr., orthopedic surgeon, of Kansas City, Missouri, examined plaintiff in his office in December, 1959. He found no muscle spasm and said the back motion was restricted about 25 percent forward, backward and to the side. There was “decreased sensation” in the lower extremities, but the reflexes were normal. He said the patient complained of dull aching back pains with radiation, but no numbness in the lower extremities. Dr. James expressed the opinion that the back injuries had a degree of permanence which he estimated as approximately 10 percent disability.

Plaintiff stated that before the accident he had helped his father who was a bulk oil distributor, and the work included helping to lift 150 and 300 gallon tanks. He said he was unable to do this after the accident. In the fall of 1959, he returned to school. He said he still had pains in his head, back and neck with “catches” in his back. He tried to play basket ball during the following winter but quit because it hurt his back and he “didn’t feel well”. He stated that at the time of the trial (January 30, 1961) he still suffered with headaches and backache.

Dr. Glenn Twente, chiropractor, gave plaintiff a total of 28 treatments from June 24, 1960 to the time of trial. He also took x-rays and found misalignment of the upper cervical spine, with the second vertebrae in the neck out of line and pressing on the nerves.

On the second day of the trial, plaintiff, with leave of court, filed his second amended petition. The prior pleading alleged generally injuries to the head, body, limbs and spine. As amended, specific claims of broken transverse processes, a whiplash injury, and injuries to the right kidney were made. Objections had been made earlier to receipt of evidence as to these specific injuries. Defendant says it was error to permit the filing of this amended pleading over his obj ection “and denying defendant’s request for a continuance”. Examination of the record reveals that the trial court, after examination of the deposition of a Dr. Ward, believed these specific injuries had there been considered and inquired into. The trial court for that reason and because of the following provisions of Supreme Court Rule 55.54, V.A.M.R. “If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby ⅜ ⅜ ⅜. court may grant a continuance to enable the objecting party to meet such evidence”, allowed the amendment and denied a continuance. We believe plaintiff was entitled to so amend his petition. We also agree with the trial court that such amendment did not prejudice defendant in “maintaining his defense upon the merits” as contemplated by Rule 55.54. This point is ruled against defendant.

Defendant asserts the court should have directed a verdict for defendant because the evidence shows that as a matter of law plaintiff was negligent in failing “to keep a proper lookout for defendant’s automobile”. The evidence is quite clear that plaintiff entered the intersection first. Defendant himself said that when he first realized plaintiff was not going to stop, plaintiff was at the ditch line, only a few feet from the intersection and defendant’s vehicle was then 200 or 250 feet from the intersection. Defendant’s car left skid marks for 198 feet before striking plaintiff’s car on its right, rear side. The question of plaintiff’s negligence or contributory negligence was submitted to the jury by proper instructions. Under this evidence we certainly agree with the trial court in refusing to rule that plaintiff was guilty of contributory negligence as a matter of law so as to justify directing a verdict against him.

On the voir dire examination of the jury, plaintiff’s counsel asked five general questions as to the panel members’ possible connection with defendant’s insurer. These inquiries were as to stockholder, present employment, policyholder, past employment, and claim adjusters. The correct name of the company as given by defendant’s attorneys was “Western Casualty & Surety Company of Fort Scott, Kansas”. In the questions the correct name was used once and four times the word “insurance” was substituted for "surety”. Defendant objected that these questions were “unnecessarily repetitious”, prejudicial, and asked for a discharge of the jury. This ever-recurring issue was recently discussed by the Supreme Court in Gooch v. Avsco, Inc. et al., Mo., 340 S.W.2d 665, 667, 668, and the court said:

“It is, of course, proper on voir dire to ascertain what connection, if any, prospective jurors have with an insurance company which is interested in the defense of the case on trial, provided pertinent inquiries are properly made for the purpose of determining the qualifications of prospective jurors. Dooley v. Dooley, Mo.App., 290 S.W. 2d 856, 857(1). And it is within the province of the trial judge to reasonably circumscribe the voir dire inquiry in that respect by limiting the number of questions and imposing other curbs on the nature of the examination. While it was undoubtedly proper on voir dire to determine whether any member of the panel was employed as a claims investigator or adjuster, it perhaps would have been desirable to have inquired generally rather than to have limited the question to insurance company adjusters. It seems apparent, however, that the adjuster question as asked could not have injected the matter of insurance any more surely into the case than had been done by the three prior questions which defendants concede were proper and to which no objection was made. In any event, the record heretofore set forth makes it clear that the trial court did not abuse its discretion in refusing to discharge the panel. Haley v. Edwards, Mo., 276 S.W.2d 153, 160(4-6)”.

We shall not hold the trial court abused its discretion in this case by refusing to discharge the jury. However, we observe that there is surely a limit to the number and extent of these questions. Counsel in their zeal should not entirely forget such limitations.

Appellant asserts the trial court erred in giving Instructions P-1 and P-2. Instruction P-1 submitted that if plaintiff was going south on Route “D”, and defendant was traveling east on Highway 24, which had not been opened for public travel, then plaintiff had the right-of-way and “in the event plaintiff had either entered the intersection or had approached so closely thereto as to constitute an immediate hazard” and then defendant failed to yield the right-of-way and was thereby negligent and that plaintiff was not negligent, and as a direct result plaintiff was injured, the verdict should be for plaintiff. Appellant sa}rs this instruction gave plaintiff “an unqualified and absolute right-of-way”. We do not agree. The instruction stated that if plaintiff had entered the right-of-way or was so close as to constitute an immediate hazard, it was defendant’s duty to yield and if he negligently failed to do so, plaintiff could recover.

In Price v. Nicholson, Mo., 340 S.W.2d 1, 10, a humanitarian case, Instruction No. 1 provided: “ * * * if you further find and believe from the evidence that at the time and place mentioned in evidence”, the two automobiles “were in imminent peril of striking and colliding with each other * * * Defendant contended this instruction gave the jury a roving commission and unduly broadened the danger zone. The court en banc said: “To require more as defendant would have us do, in effect would require a plaintiff before he has prepared his instruction to determine the exact place and time prior to which he could not as a matter of law have been in a position of imminent peril. This is both unrealistic and unnecessary to a fair submission”. It might tend to confuse rather than to clarify.

If plaintiff had entered the intersection first that was sufficient. Defendant’s testimony placed plaintiff’s car “around the ditch line” or just a few feet from the intersection and his own car then 200 or 250 feet from the intersection and traveling 65 miles per hour. When plaintiff last saw defendant, except immediately before the collision, he was “?ioths of a mile away”. If ’defendant thought the instruction needed clarification and had the courage to attempt it, he should have done so. In this case defendant admits he was 200 or 250 feet away when plaintiff was about to enter the intersection. Under these unusual facts and testimony, it was not error to give the instruction.

Appellant objects to that portion of Instruction P-2 which authorized the jury to consider the physical pain and suffering which plaintiff “may, in the future, be reasonably certain to suffer”. (Italics ours). The evidence shows plaintiff received three fractured transverse processes, one of which, according to Dr. Brasher, had healed with some deformity. Plaintiff, at the time of trial, complained of headaches and backache. Dr. James gave it as his opinion plaintiff had received permanent injuries. It is our opinion thaTthis evidence was sufficient upon which to base a submission of the issue as to future pain and suffering. We rule it was not reversible error to give Instruction P-2.

Dr. James, orthopedic surgeon, was asked this question:

“Q. Would you say, in your opinion, the extent of permanent disability and the percentage?
“MR. SKELTON: We certainly object to the doctor invading the province of the jury in trying to assess the percentage. He can state the facts and the jury will pass upon that. That is a jury question and not a question of expert opinion in a case of this nature and I object to it.
“THE COURT: The objection will be overruled.
“A. I would estimate the permanent injury as around 10 per cent.
“Q. Is that of the body as a whole, doctor ?
“A. Yes, sir”.

In Knipp v. Mankin, Mo., 336 S.W.2d 371, 374, 375, the doctor was permitted to express his expert opinion that plaintiff’s percentage of loss in his back was “in the neighborhood of 50 per cent”. The Supreme Court said:

“Defendant contends that the question of the percentage of disability is not a proper subject for opinion testimony by a medical expert; that by reason of their wide experience jurors are in a better position to estimate the extent that an injury will disable a person than are medical experts.
“No Missouri case has been cited which deals with the question presented. However, in Ott v. Perrin, 116 Ind. App. 315, 63 N.E.2d 163, 166, it was held proper to permit a medical expert to express the opinion that the plaintiff ‘had lost from one-third to forty percent of his usefulness as the result of his injuries.’ Also, in Skelly Oil Co. v. Harrell, 187 Okl. 412, 103 P.2d 88, 90, expert testimony was held competent to the effect that ‘respondent has a 25 percent disability to his right leg and that this disability is permanent.’ In Missouri the courts have held that an expert may express the opinion that an injury is permanent, Mahany v. Kansas City Rys. Co., 286 Mo. 601, 228 S.W. 821, and that the plaintiff is totally disabled. Stearns v. Prudential Ins. Co. of America, 235 Mo.App. 135, 140 S.W.2d 766. If it is proper for an expert to express the opinion that a person is totally disabled it would seem proper to permit expert testimony that he has sustained a percentage of disability. We have been unable to think of any logical reason why a qualified medical expert should not be permitted to express the opinion that a person has sustained a certain percentage of disability in a certain area of the body. It seems to us that such an expert would be better qualified to evaluate the effect of an injury in limiting the use of a certain part of the body than would the average juror. We accordingly rule that the court did not err in permitting the testimony complained of.”

Under this recent ruling by the Supreme Court the answer given by Dr. James was permissible.

Dr. G. L. Williamson, orthopedic surgeon, to whom plaintiff had been referred by Dr. Brasher, wrote a letter dated October 31, 1959, to Mr. Sherman, one of plaintiff’s attorneys, reporting on his examination of plaintiff which was made July 16, 1959. He sent a copy of this letter to Dr. Brasher, who placed it in his office files. Defendant’s offer of this letter or the copy was refused. It is contended that the letter was admissible under Sections 490.-670 and 490.680, V.A.M.S. as a “business record” of Dr. Brasher. These Missouri statutes include the medical profession as a “business”. Section 490.680, supra, declares : “A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission”. This proffered document was not a record “made in the regular course of business”, by either of the doctors. At most it is a report about an examination and by letter written three and a half months after the examination it purported to describe and addressed to plaintiff’s attorney. A copy was sent to the forwarding physician, Dr. Brasher, and as a part of his records it was offered in evidence. No real effort was made to qualify this letter for admission as a “business record”. Denial by the trial court of its reception in evidence under the above statutes as a “business record” was not error.

Lastly, it is contended the verdict is excessive and defendant is entitled to either a new trial or to a remittitur. Our attention is invited to certain Missouri decisions which appellant says support this contention.

In Herr v. Ruprecht, Mo., 331 S.W.2d 642, a verdict for $45,000, reduced by the trial court to $22,500 was ruled still to be excessive. But in that case plaintiff worked regularly for about 14 months after the automobile collision at the same job and for the same compensation as before. In addition, plaintiff had received a second injury by falling on the ice, which fall was not caused by the automobile collision, but evidence as to these injuries was received and probably contributed to the size of the verdict.

Dye v. St. Louis-San Francisco Ry. Co., Mo., 234 S.W.2d 532, holds the trial court did not abuse its discretion in granting a new trial on the ground the verdict was excessive.

Appellant refers to Godsy v. Thompson, 352 Mo. 681, 179 S.W.2d 44, where a 30 year old switch tender suffered fractures of the left 1, 2, 3 and 4 transverse processes and a $10,000 verdict was not disturbed. The difference in dollar value between 1944, when the Godsy judgment was entered, and today would, we think, more than take care of the $4,000 difference in our verdict. The Supreme Court of Mississippi (Arnold et al. v. Ellis, 231 Miss. 757, 97 So.2d 744, 747) commented as to the amount of damages when the claim of excessiveness is presented. The court said: “It is practically impossible to prove the exact dollar and cent value of pain in varying degrees. Such determination must be left to the jury, who, in the exercise of common sense and judgment, are vested with the right and duty to make a fair appraisal of the amount which should be awarded as compensation for that element of damage”. While the quoted comment is restricted to pain, the general rule is applicable to other elements of damage.

In our particular case we have a 16 year old boy who received back fractures. He had substantial disability at least for a time. Moreover, plaintiff’s own testimony and that of his doctors, if accepted by the jury at face value, showed that at the time of trial he had some pain, discomfort and a permanent disability. In the usual course of events, most of his life is still ahead of him. He was out of school for a part of one year and has foregone the privilege and pleasure of participating fully in school athletics. The purchasing power of the dollar has steadily and rapidly depreciated during the last several years. While the verdict for the injuries in this case is of sufficient size to cause us to carefully consider the charge of excessiveness, we cannot so rule it. We are not convinced that it should be attributed to bias, prejudice or overwrought sympathy on the part of the jury. The trial judge, who was present throughout the trial, in the exercise of his discretion, refused to overturn the verdict. We are in accord with that decision.

We find no reversible error and the judgment is affirmed.

SPERRY, C., not sitting.

PER CURIAM.

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.