author: BARROW, Justice.

text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Beverly B. BEARD, Appellee.
    No. 14438.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 16, 1966.
    Rehearing Overruled March 23, 1966.

      McGown, McClanahan & Hamner, San Antonio, for appellant.
    Lieck & Lieck, Goodstein & Semaan, San Antonio, for appellee.
   BARROW, Justice.

Appellee, Beverly B. Beard, brought this suit as beneficiary to recover from appellant, Republic National Life Insurance Company, for accidental death benefits due under a group insurance policy issued by appellant to Star Engraving Company. The insured, Neal B. Beard, was an employee of Star Engraving Company and was issued a certificate of insurance under the group policy. After a non-jury trial, judgment was entered for appellee whereby she recovered the sum of $30,000, on the policy, together with the statutory penalty and attorneys’ fees. Findings of fact and conclusions of law were made by the trial court, which will be set forth as applicable to the assignments of error.

Benefits were payable under the policy provisions, if insured sustained “an injury effected solely through external, violent and accidental means, and as a result thereof, directly and independently of all other causes suffered a loss of life within 90 days following the date of such injury.” The policy also contained a limitation whereby benefits should not be payable for any loss to which a contributing cause is “disease, bodily or mental infirmity, or medical and surgical treatment thereof * *

In Mutual Benefit Health & Accident Ass’n v. Hudman, 398 S.W.2d 110 (Tex.1965), the Supreme Court recently considered the test for determining liability under an accidental death policy containing somewhat similar language. The Court adopted this test: “We conclude that by definition of the policy terms and by logic, the policy coverage was limited to accidental bodily injuries which must be the sole cause of death.” Recovery was denied because the beneficiary failed to prove that the death was the result solely of Hudman’s overexertion, as all of the evidence showed that pre-existing serious heart disease and overexertion concurred to cause the fibrillation of Hudman’s heart and, in turn, his death. The Court pointed out, however, that “Recovery is not defeated when a preexisting condition or disorder is so remote in the scale of causation, so dormant and insubstantial, or so temporary and transient that it does not materially contribute to the death or injury.”

Beard was involved in a serious automobile accident on September 16, 1963, whereby he sustained a severe concussion causing him to be confused, addled and disoriented; fractured ribs; an eye injury; laceration of his left kneecap; fracture of his right kneecap, which required an operation for removal of a part of the patella; as well as multiple bruises and contusions. He was hospitalized from that date until October 12, 1963. During this hospitalization he developed thrombo-phlebitis. The trial court found that about two weeks after the accident Beard developed a mental depression of great intensity, which was directly and proximately attributable to the injuries, the surgery and the accompanying mental and physical pain and anguish. As a result of this depression it was necessary for his physician, in proper treatment of same, to prescribe the drugs “librium” and “tofra-nil.” Beard had an idiosyncracy, hypersensitivity, or an allergy to one of these drugs, more probably tofranil, and it caused a toxicity of his liver which resulted in his death on November 7, 1963.

An autopsy was performed following Beard’s death and, in addition to the drug intoxication, the liver was found to be damaged from early portal cirrhosis. The trial court found, however, that the condition of early portal cirrhosis was not a contributing cause of Beard’s death, and did not contribute to the toxic condition. It was found that all of the injuries received in the automobile accident, together and combined, caused a chain of circumstances which resulted in a mental depression requiring the administration of the drugs aforesaid, which drugs resulted in toxicity and the consequent death.

Appellant urges that insured died of drugs administered for a condition of depression, which was a purely mental or emotional reaction to the accidental injuries, and therefore the injuries were, at most, the remote cause of insured’s death, and such death did not result, directly and independently of all other causes, from the accidental injuries. Appellant asserts that the development of the psychotic depression was a new departure from the direct line of causation.

The evidence establishes that insured was a very active, robust person prior to the automobile accident and had never suffered from a mental depression or any other mental illness. His family doctor, Dr. Romo, testified that the injuries sustained by Beard, including the thrombo-phlebitis, were very painful, and that about two weeks after the accident Beard developed a psychotic depression as a result of his inactivity, suffering and pain. In his opinion this depression was a direct result of the accidental injuries sustained by Beard.

Dr. King, a psychiatrist, was called into the case by Dr. Romo on November 5, 1963. This was after Beard’s second hospitalization on November 4, 1963, and at that time Beard was irrational and having hallucinations. Dr. King testified that the depression was a psychological outgrowth from the accident and was not an uncommon result. In his opinion, the depression was a psychic or emotional reaction to Beard’s injuries, hospitalization and inactivity.

There is no dispute in the evidence that the antidepressant drugs “librium” and “tofranil” are customarily used by doctors for treatment of mental depression, and they are considered harmless when properly administered. There is sufficient evidence to support the trial court’s findings that Beard had an idiosyncracy, hypersensitivity or allergy to one or both of these drugs and that this reaction produced a drug intoxication which prevented his liver from functioning properly.

We have not been cited to any case directly in point. Appellant concedes that coverage is afforded for death resulting from the proper treatment of accidental injuries, and this includes infections naturally resulting therefrom. See 29A American Jur., Insurance, § 1219; Appleman, Insurance Law, Vol. 1A, § 404; American National Ins. Co. v. Briggs, Tex.Civ.App., 90 S.W.2d 602, wr. dism.; International Travelers’ Ass’n v. Bettis, Tex.Civ.App., 52 S.W.2d 1059, wr. ref.; State Farm Mutual Auto Ins. Co. v. Underwood, Mo.Ct. of App., 365 S.W.2d 761.

It is settled also that an idiosyn-cracy consisting of a hypersusceptibility to a harmless drug is not a “bodily infirmity” within a policy exclusion. Appleman, Insurance Law, § 401; 84 A.L.R.2d 180; Mutual Life Ins. Co. of New York v. Dodge, 4 Cir., 11 F.2d 486, 59 A.L.R. 1290; Johnson v. National Life & Accident Ins. Co., 92 Ga.App. 818, 90 S.E.2d 36.

The question is therefore narrowed to whether or not the mental depression suffered by Beard can be considered a direct result of the automobile collision and the injuries sustained, and therefore within the coverage afforded by this policy. The two doctors testified that it was such a result from the medical standpoint. It is our opinion that a mental or emotional reaction which is produced solely by external, violent and accidental means, brought about by the concurrence of the elements of force and accident, or as a direct result of injuries so sustained, is within the coverage afforded by this type policy.

In Pan American Life Ins. Co. v. Andrews, 161 Tex. 391, 340 S.W.2d 787, 93 A.L.R.2d 560 (1960), the Supreme Court denied recovery under an accidental means policy for death resulting from thrombosis caused by psychic trauma insured had sustained while watching a fire in his office building. The policy required that there be visible evidence of injury on his body or internal injuries revealed by an autopsy, and there was neither shown in the case. The Court cited with approval 45 C.J.S. Insurance § 754, which states in part that a policy providing coverage for injury which results solely by or through “external, violent, and accidental means” applies only where the elements of force and accident concur in effecting the injury. Andrews was some distance from the building and these elements did not produce his injury. The majority of the Court denied recovery on the basis that there was no evidence that insured suffered death as a result of bodily injuries effected solely through external, violent and accidental means.

In Bailey v. American General Ins. Co., 154 Tex. 430, 279 S.W.2d 315 (1955), and Houston Electric Co. v. Dorsett, 145 Tex. 95, 194 S.W.2d 546 (1946), the Supreme Court recognized that the body can be injured by nervous disorders as well as by actual physical injury. In Hood v. Texas Ind. Ins. Co., 146 Tex. 522, 209 S.W.2d 345 (1948), the Supreme Court permitted recovery under the Workmen’s Compensation Act for a neurosis where it was shown that same was the result of a physical injury sustained by claimant.

Under the uncontradicted evidence, Beard sustained serious injuries in the automobile accident. He had no prior mental condition. There was medical evidence that as a direct result of the pain, hospitalization and inactivity as a result of these injuries he developed a mental depression requiring medical treatment. This condition was sustained solely through external, violent and accidental means, within the terms of this policy.

Appellant complains, by “no evidence” and “insufficient evidence” points, of the findings by the trial court that the injuries sustained in the automobile collision resulted directly in the death of Beard, that these injuries, independently of all other causes resulted in his death, and that the early portal cirrhosis was not a contributing cause of death. These points, although determined by different tests, require a review of the entire record. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 18 Texas Law Review 361.

Six doctors testified in this case, four of whom were called by appellee and two by appellant. About twelve hours after Beard’s death, appellee consented for an autopsy to be performed. This autopsy was performed under the supervision of Dr. VanAuken, and his report was the basis for the testimony of all the medical witnesses relative to the cause of death. This report showed the liver was damaged from two causes, pronounced cholangiolitis with cholestasis, due to drug intoxication, and lesions of an early portal cirrhosis.

Dr. Romo testified that in his opinion the autopsy finding of early portal cirrhosis was practically negligible, and this condition had nothing to do with the adverse effect that Beard had to the drugs. He testified that these drugs were commonly used in treatment of alcoholics with no ill effects, although alcoholics would usually have advanced portal cirrhosis. The liver was described as being a very large organ and one that is able to function properly although substantially damaged.

Appellee testified as to the apparent good health of Beard prior to the accident. Dr. King testified that in his opinion the portal cirrhosis did not cause the drug reaction and didn’t think it was of any major import in the death of Beard.

Dr. Albert Richmond, a pathologist, was called as a rebuttal witness by appellee. He testified that he had reviewed the autopsy report as well as the slides which were made of Beard’s liver as a part of the autopsy. In his opinion the early portal cirrhosis was incidental and not a cause of death. In response to a hypothetical question, he testified that the cirrhosis did not have anything to do with Beard’s death.

Dr. Cook, an internal medicine specialist, testified in rebuttal for appellee that the cause of death was drug intoxication caused by tofranil, and in his opinion the early portal cirrhosis did not contribute to Beard’s death. He testified that the autopsy report described only a minimal type or portal cirrhosis.

This evidence, although contradicted sharply by medical witnesses called by appellant, is sufficient to raise fact issues under the “no evidence” test on the findings complained of by appellant.

Dr. VanAuken was called as a witness by appellant. He testified that the early portal cirrhosis existed prior to the accident. This is a progressive disease and although the condition had not progressed to where it was manifesting clinical symptoms that were noticeable by Beard or his family doctor, Dr. VanAuken testified that it was a contributing cause of the death of Beard. In his opinion, Beard’s death was caused by the combination of the drug intoxication acting upon the previously damaged liver and both causes contributed to his death.

Dr. Creamer, another internal medicine specialist, was called as an expert witness by appellant. He testified, in response to a hypothetical question, that the early portal cirrhosis played a significant part in bringing about Beard’s death. In his opinion the drug intoxication and portal cirrhosis combined to produce the death of Beard.

It is our opinion, from an examination of the record as a whole, that the evidence is factually sufficient'to support the trial court’s findings and these findings are not so contrary to the evidence as to be manifestly unjust and therefore appellant’s “insufficient evidence” points are overruled. Under these findings the injuries received in the automobile collision were the sole cause of Beard’s death. They support a recovery under the test set forth in Mutual Benefit Health & Accident Ass’n v. Hudman, supra.

Appellant challenges, by “no evidence” and “insufficient evidence” points the trial court’s finding that appellee made a demand for payment of her claim prior to May 5, 1964, so as to entitle her to recover the statutory penalty and attorney’s fee under Art. 3.62, Insurance Code, Vernon’s Ann.Civ.St. On March 24, 1964, appellee’s attorney wrote appellant a letter of inquiry relative to this policy. After referring to supplemental information presented appellant on March 5, 1964, it said: “I have not heard whether you received this communication and hope that you have so that this claim can be processed as soon as possible.”

Appellant treated ■ this letter, together with a prior communication, as a claim for payment, in that its reply stated in part: “Thank you for your letter requesting our decision on the payment of the Accidental Death Benefit under the above policy.” On May 5, 1964, by telegram and by letter, liability was denied for this claim. Suit was filed on June 17, 1964. Appellant did not at any time admit it owed this claim or offer to pay same.

It is our opinion these acts constituted sufficient demand for payment to justify penalty and attorney’s fee. In National Life & Accident Ins. Co. v. Dove, 141 Tex. 464, 174 S.W.2d 245 (1943), very similar facts were considered sufficient as a demand under the penalty statute. The Court said: “In order to meet the terms of the statute it is not indispensable that the demand be evidenced by firm and commanding language. It may be couched in the customarily-used polite language of the day. All that is required is the assertion of the right under the contract and a request for compliance therewith.” In our case, as in Dove, the company recognized the claim as a demand for performance, but, after due investigation, denied the claim. See also Washington Nat. Ins. Co. v. Kohlenbrener, Tex.Civ.App., 329 S.W.2d 956, wr. ref. n. r. e.; Old National Ins. Co. v. Johnson, Tex.Civ.App., 312 S.W.2d 715, no wr. hist.; Reserve Life Ins. Co. v. Miller, Tex.Civ.App., 300 S.W.2d 343, wr. ref. n. r. e.

Appellant urges that in any event the attorneys’ fees of $8,000 awarded to appel-lees’ attorneys for legal services prior to entry of the judgment is grossly excessive. The judgment provides for additional attorneys’ fees of $1,500 for appeal to this Court, and $1,500 in the event an application for writ of error is sought, but no complaint is made by appellant of these sums.

Appellee’s attorney Mr. Lieck, Sr., testified that although he did not keep any systematic time records, he knew that his preparation for trial of this case took 160 hours, counting legal and medical research and conferences with witnesses. The case took two days actual trial before the court. Mr. Lieck testified that, considering the amount in controversy, a reasonable attorney’s fee for services excluding appeal would be $12,000. Attorney A. R. Sohn testified as an expert witness that a reasonable attorney’s fee would be from $10,000 to $15,000. He estimated the value of the actual time at about $5,000, and testified that the remainder of the fee was based on the amount in controversy and the skill necessary to try this type case.

Appellant offered no evidence contradicting the amount of attorneys’ fees. It urges, however, that a substantial amount of the time involved related to a tort claim growing out of this accident and a claim under another life insurance policy. These matters were fully developed on cross-examination, as well as the very general manner of calculating the time spent on the case by appellee’s attorneys.

The trial court found that on a time basis appellee’s attorneys had earned $4,860 prior to trial and awarded the additional sum on the basis of the amount involved. We believe the amount involved is a legitimate consideration in determining a reasonable attorney’s fee. The statute provides the court in fixing such fee shall consider all benefits to the insured incident to the prosecution of the suit. The trial court did not abuse its discretion in awarding appellee attorneys’ fees of $8,000 under the record in this case.

Appellant complains of the awarding of statutory interest from date of judgment on the sum of $3,600 awarded as penalty interest, and the sum of $8,000 awarded as attorneys’ fees under Art. 3.62, supra. This statute provides in part that where a company fails to pay the loss within thirty days after demand therefor, it shall be liable to pay, in addition to the amount of the loss, 12% damages on the amount of such loss. The statute provides, however, that such attorney’s fee shall be taxed as a part of the costs in the case.

In American National Ins. Co. v. Mays, Tex.Civ.App., 97 S.W.2d 975, wr. ref., it was held that the item of attorney’s fee, although referred to as costs in the statute was more properly an award of damages and should bear the statutory interest from date of judgment. Contra, Reserve Life Ins. Co. v. Miller, Tex.Civ.App., 300 S.W.2d 343, wr. ref. n. r. e.

In our opinion the trial court properly awarded interest from date of judgment on the sum of $3,600, and on the $8,000 attorneys’ fees incurred to date. The trial court properly provided that interest on the attorneys’ fees provided for in the event of appeal would not begin to run until the appeal was perfected or application for writ of error filed.

Reversible error is not shown by appellant’s point complaining of improper coaching of Dr. King by appellee’s counsel, through his objections during cross-examination. Although appellee unnecessarily restated her objections several times after the trial court had overruled same, the record does not show that appellant was prevented from a full and complete cross-examination of Dr. King. The trial court was in full control of the proceedings and in a position to consider the weight of the doctor’s testimony, if any “coaching” was done by appellee. Further, the issue of whether Dr. King, as well as the other medical witnesses agreed with the conclusion of Dr. VanAuken as to the cause of death was fully developed before the trial court.

Under its last three points, appellant complains of the finding of the trial court that Beard earned in excess of $20,000 annually, so as to be entitled to $30,000 insurance under the group policy. It asserts both “no evidence” and “insufficient evidence” points, in addition to complaining of the entry of the judgment in this amount.

There is not a scintilla of evidence as to the earnings of Beard and the record clearly demonstrates that this issue was never joined by the parties. Appellee pleaded that Beard took out $30,000 life insurance under the group life policy and also indemnity for accidental death under the terms of said group policy and certificate. She further alleged that all premiums of said policy and certificate were duly paid. The pleadings clearly asserted demand for the amount of said policy, to-wit, $30,000. Appellant did not question this amount of coverage in any manner by its pleading.

At the beginning of the trial, appellee offered in evidence the life group policy and the accident and sickness group policy. Following this, she offered Beard’s certificate in this manner:

Mr. Lieck: “And, Neal B. Beard’s Certificate as Exhibit No. 3, showing the insurance, thirty thousand life and thirty thousand accident, under the accident provisions of the policy. They speak for themselves.”
Mr. Hamner: “No objections.”

The group life policy provides in part, that “A person shall be insured for the life insurance applicable to his classification in the schedule of earnings.” There are set out five classifications for “Sales and Executives’ Earnings,” ranging from $20,000 and over, which authorized $30,000 life insurance, to earnings of $7,000 to $9,999, which authorized $10,000 life insurance. The group accident policy provided that rates are based upon a similar classification as set forth in the group life insurance policy, and provides for equivalent accidental death benefits. The policy terms provide that each individual insured should pay a premium based on the amount of his insurance.

The Certificate which was issued to Beard sets forth all five of the classifications. The only indication on the certificate as to Beard’s classification is a circle drawn around the $30,000 figure by someone. The only other evidence relating to Beard’s classification is in the letter of May 5, 1964, in which appellant denied liability. This letter states in part: “We regret that we are unable to be of assistance for this particular benefit, however, we were happy to allow the $30,000 life insurance benefit.”

It is our opinion that this admission, in view of the terms of the policy, constituted sufficient evidence to support the judgment establishing the principal sum due under the policy as $30,000.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DENTON, Chief Justice.

license: Public Domain

text:
    Patricia Darlene Newman SHANNON et vir, Appellant, v. Delbert W. NEWMAN.
    No. 7573.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 28, 1966.
    Harold Sanderson, Amarillo, for appellants.
    George S. McCarthy, Amarillo, for ap-pellee.
   DENTON, Chief Justice.

This suit, seeking a change in custody of a four year old girl, was brought by Delbert W. Newman, the father, against Patricia Darlene Newman Shannon, the mother, and her husband, Jerry Shannon. Newman and Mrs. Shannon were formerly husband and wife. The divorce decree awarded the custody of the child to the mother for nine months and to the father for three months of each year. The defendants, by cross-action, also sued for custody. The case was submitted to a jury which answered in favor of the father. Based on the jury verdict, the trial court awarded full custody to the father with visitation rights granted to the mother.

The sole point of error, liberally construed, is that the trial court abused its discretion in changing custody , of the minor child in that the evidence is insufficient to support the finding there had been a material change of conditions. The verdict of the jury is binding upon the trial court and not merely advisory as was the case prior to the enactment of Article 4639a, Vernon’s Ann.Tex.Civ.St., as amended. Fatheree v. Eddleman (Tex.Civ.App.) 363 S.W.2d 784. A jury determination of whose custody will best serve the interests and welfare of the minor child requires the trial court to render judgment in accordance with the verdict which is supported by evidence of probative force. Appellants’ point requires us to review the entire evidence in accordance with the rules announced In Re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

The parties were divorced in October,, 1963. The divorce decree awarded custody of the child, born January 18, 1962, to the mother for a period of nine months beginning September 1 and ending May 31 of each year, while custody was awarded to the father for the three summer months. The father was then in the armed services but was discharged in May, 1964. Shortly after the divorce the mother left the child in the care of appellee’s mother in Tulia, Texas for several weeks while the child’s mother attended business school and worked in Amarillo. The father took the child and kept it in his parents home during the summer months of 1964 in accordance with the divorce decree. The grandmother cared for the child during the day while the father worked. On or about August 1, 1964 appellant, Darlene Newman, left Tulia in the company of Jerry Shannon and they were married shortly thereafter in Las Vegas, Nevada. She returned to Tulia on September 2 and took her child as she was permitted to do. Shortly thereafter, this suit was filed but Mrs. Shannon returned to California with her child and remained there with her present husband and daughter until December, 1964.

The statement of facts, consisting of 273 pages,.of testimony of 22 witnesses, is replete with evidence both pro and con on the issue of custody of the child. Jerry Shannon, the appellant’s present husband, was twenty-five years of age at the time of the trial and had been married four times, including the marriage- to the appellant. One of his former wives and the mother of another testified to his conduct during these former marriages and to his general reputation. Characteristics of excessive drinking, violent acts against these former wives, and marked instability on the part of appellant’s present husband were brought out. Testimony of appellant’s activities with her present husband prior to their marriage, and with others, including a speeding automobile ride with her child while the drivers were drinking intoxicants, were not calculated to impress the tryer of the facts. The care and environment provided the child by appellee and his mother were praised by several witnesses who were in a position to know the facts. We see no need to review the testimony in detail. The jury heard the witnesses and observed their demeanor and were in a position to weigh their respective qualifications. In so doing, the jury found there had been a material change of conditions, and that the best interests of the child would be served by awarding its custody to the father, appellee herein.

We have examined the entire record and we have concluded the jury’s findings were not so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong or unjust.

The judgment of the trial court is affirmed.


author: FANNING, Justice.

text:
    J. G. LONDON, Appellant, v. Rosa Mae CHANDLER et al., Appellees.
    No. 7722.
    Court of Civil Appeals of Texas. Texarkana.
    March 1, 1966.
    Rehearing Denied March 29, 1966.

      Lowell C. Holt, Gilmer, for appellant.
    Fred H. Benners, Dallas, for appellees.
   FANNING, Justice.

Appellees sued appellant and appellant was duly cited on Jan. 27, 1965, to appear by filing a written answer to plaintiffs’ petition at or before 10:00 o’clock A.M. on the Monday next after the expiration of twenty (20) days following Jan. 27, 1965, in the 14th Judicial District of Texas, at the Courthouse in the City of Dallas, Dallas County, Texas. No answer having been made or filed by defendant-appellant by 12 o’clock noon on Monday, February 22, 1965, plaintiffs presented their cause to the court, whereupon a judgment was entered by the court cancelling and setting aside a deed from plaintiffs to defendant, as prayed for by plaintiffs in their pleadings. On July 31, 1965, appellant filed an application for writ of error to the Dallas Court of Civil Appeals seeking to set aside said judgment. On equalization of dockets the cause was transferred to this court.

Appellant presents two points on appeal, which are as follows:

“FIRST POINT
“The error of the trial court in rendering a default judgment against Appellant because the citation served upon appellant was insufficient in that the date of issuance of citation was not shown thereon.
“SECOND POINT
“The error of the trial court in rendering a default judgment against Appellant on February 22, 1965, a legal holiday.”

Rule 101, Texas Rules of Civil Procedure, provides as follows:

“The citation shall be styled ‘The State of Texas’ and shall be directed to the defendant and shall command him to appear by filing a written answer to the plaintiff’s petition at or before 10 o’clock a. m. of the Monday next after the expiration of 20 days after the date of service thereof, stating the place of holding the court. It shall state the date of the filing of the petition, its file number and the style of the case, and the date of issuance of the citation, be signed and sealed by the clerk, and shall be accompanied by a copy of plaintiff’s petition. The citation shall further direct that if it is not served within 90 days after date of its issuance, it shall be returned unserved. The party filing any pleading upon which citation is to be had shall furnish the clerk with a sufficient number of copies thereof for use in serving the parties to be served, and when the copies are so furnished the clerk shall make no charge therefor. Amended by order of September 20, 1941, effective December 31, 1941; and by order of October 10, 1951, effective March 1, 1952.”

The body of the citation served upon appellant clearly shows the date of issuance as follows:

“Given under my hand and the Seal of said Court this the 19 th day of January, 1965.

ATTEST: BILL SHAW

Clerk of the District Courts of Dallas County, Texas By /s/ Jean Hamel, Deputy”

However, the space on the outside cover of the citation for date of issuance was not filled in. Since the date of issuance of the citation was clearly shown in the body of the citation, we hold that the citation was sufficient. Appellant’s first point is overruled.

Monday, February 22, 1965, was a statutory legal holiday in Texas. Art. 4591, Vernon’s Ann.Civ.St.

Court proceedings on a legal holiday are not void, except where expressly so declared by statute, as they are when performed on Sunday. Houston, E. & W. Tex. Ry. Co. v. Harding, 63 Tex. 162.

Following service on January 27, 1965, appellant in accordance with the citation command had 26 days in which to answer the suit. The last day to file his answer was not on the last day of any period of time of so many days, but rather, was at a specific time on a specifically designated day, which was in fact, Monday, February 22, 1965. Rule 4, T.R.C.P., is not pertinent to the situation here involved. In this connection see Pearl Assurance Co. v. Williams, Tex.Civ.App., 167 S.W.2d 808, no writ (1943).

Since appellant did not file an answer by 10:00 o’clock a. m. on Monday, Feb. 22, 1965, the trial court, at 12:00 o’clock noon on Monday, Feb. 22, 1965, in entering the judgment in question, was clearly authorized to do so under Rule 239, T.R.C.P., and the trial court’s rendition of judgment on Monday, Feb. 22, 1965, a legal holiday, was not void. Houston, E. & W. Tex. Ry. Co. v. Harding, 63 Tex. 162. Appellant’s second point is overruled.

The judgment of the trial court is affirmed.


author: POPE, Justice.

text:
    TRANSPORT INSURANCE COMPANY, Petitioner, v. A. L. POLK et ux., Respondents.
    No. A-10768.
    Supreme Court of Texas.
    March 16, 1966.
    Rehearing Denied April 20, 1966.
    Leachman, Gardere, Akin, Porter & De-Hay, Dallas, for petitioner.
    Jacobs & Lipscomb, Fort Worth, for respondents.
   POPE, Justice.

A. L. Polk and wife filed a claim against Transport Insurance Company to recover the value of Mrs. Polk’s nursing services to her husband. They asserted their claim under Section 7, Article 8306, Vernon’s Ann. Tex.Civ.St. of the Workmen’s Compensation Act. Upon appeal from the Board’s denial of their claim, they recovered a judgment for $6,500.00 on a jury verdict and the Court of Civil Appeals has affirmed. 388 S.W.2d 474. Transport Insurance Company presents three points: (1) that part of the claim for nursing bills that arose after the date of the Board denial, under Section 5, Article 8307, is outside the jurisdiction of an appeal to the Court; (2) a wife may not recover bills for nursing rendered to her husband; and (3) there is no evidence to support the jury finding of the value of Mrs. Polk’s nursing services. We affirm the judgments of the courts below.

This is Polk’s second claim arising out of a serious injury which he sustained on January 24, 1961. As a result of that injury he is bedfast and helpless. Without aid, he cannot eat, drink, attend to his bodily needs, or turn over in bed. He filed a claim for compensation and also for nursing services. During the pendency of that first claim Transport voluntarily commenced paying Polk for the employment of a Mr. Tejada, a . qualified nurse. Tejada has continued to work ten hours each day for six days of each week and four hours on Sunday. The Polks demanded nursing services for the rest of each day but Transport refused to supply additional services. That claim terminated by an agreed judgment on October 3, 1963. That judgment specifically provided that all claims of Mr. Polk, arising under the Workmen’s Compensation Act after April 9, 1963 would in no way be affected by the compromise settlement approved in the judgment. The parties agreed that rights after that date were not adjudicated, and this present action has been tried in keeping with that agreement.

The Polks then filed this second claim. Its sole purpose was to recover the reasonable value of Mrs. Polk’s services from April 9, 1963 forward. On December 17, 1963, the Board denied the claim. On appeal to the district court, Transport urged a plea to the jurisdiction of the Court to consider that part of the Polk claim for nursing services performed after the date of the Board’s denial. The basis for its challenge was that Section S, Article 8307 provides that all claims must first be presented to the Board. The Court overruled the plea.

The Polks obtained a jury verdict that (1) Transport failed to furnish Polk with reasonable and necessary nursing services between April 9, 1963 and April 26, 1964, the date of trial; (2) Mrs. Polk furnished such services to Polk during that period of time; (3) the reasonable charge for the services for the period between April 9, 1963 and December 17, 1963 was $4,200.00; and (4) the reasonable charge for such services for the period from December 17, 1963 to April 26, 1964 was $2,300.00. The Court of Civil Appeals affirmed the trial court’s judgment for $6,500.00.

Transport’s jurisdictional point before this Court attacks only that part of the judgment based upon the verdict embraced in the fourth special issue stated above. It is our opinion that Section 5, Article 8307 permits an injured employee to recover for nursing services rendered during the time which intervenes the Board’s order and the date of judgment. The section provides:

“Sec. 5. Notwithstanding any other provision of this law, as amended, no award of the Board, and no judgment of the court, having jurisdiction of a claim against the association for the cost or expense of items of medical aid, hospital services, nursing, chiropractic services, medicines or prosthetic appliances furnished to an employee under circumstances creating a liability therefor on the part of the association under the provisions of this law, shall include in such award or judgment any cost or expense of any such items not actually furnished to and received by the employee prior to the date of said award or judgment. The first such final award or judgment rendered on such claim shall be res judicata of the liability of the association for all such cost or expense which could have been claimed up to the date of said award or judgment and of the issue that the injury of said employee is subject to the provisions of this law with respect to such items, but shall not be res judicata of the obligation of the association to furnish or pay for any such items after the date of said award or judgment. After the first such final award or judgment, the Board shall have continuing jurisdiction in the same case to render successive awards to determine the liability of the association for the cost or expense of any such items actually furnished to and received by said employee not more than six (6) months prior to the date of each such successive award, until the association shall have fully discharged its obligation under this law to furnish all such medical aid, hospital services, nursing, chiropractic services, medicines or prosthetic appliances to which said employee may be entitled; provided, each such successive award of the Board shall be subject to a suit to set aside said award by a court of competent jurisdiction, in the same manner as provided in the case of other awards under this law.”

The first sentence of the section, instead of limiting recovery to cost and expenses up to the date of the award, limits the recovery to that which accrued “prior to the date of said award or judgment.” The next sentence makes the first award “or judgment” res judicata of liability for such cost or expense “up to the date of said award or judgment * * The statute does not, as argued, limit the Court’s adjudication of nursing bills to the date of the Board action, but adds each time the words “or judgment.” The Polks could recover for the nursing services furnished up to the date of judgment. Texas Casualty Insurance Co. v. Beasley, 391 S.W.2d 33 (Tex.Sup.1965).

Since Transport’s plea invokes only Section 5, Article 8307, we reserve judgment with respect to a plea which may urge that the claimant did not comply with Section 7a, Article 8306 as a condition precedent to a claim for additional or different services. The Polks and Transport have tried this entire action upon the assumption that Section 7 is solely applicable.

Transport narrowly stated its second point as “The error of the courts below in holding that Mrs. Polk was entitled under Section 7 of Article 8306 to recover for nursing rendered by her to her husband in amounts not expended or incurred.” It argues that Mr. Polk has neither paid nor contracted to pay his wife anything and has expended or incurred nothing as required by that part of Section 7 which states:

“The employee shall not be entitled to recover any amount expended or incurred by him for said medical aid, hospital services, nursing, chiropractic services, or medicines, nor shall any person who supplied the same be entitled to recover of the association therefor, unless the association or subscriber shall have had notice of the injury and shall have refused, failed or neglected to furnish it or them within a reasonable time.”

An understanding of the section requires our consideration of the opening sentence of Section 7: “The association shall furnish such * * * nursing * * * as may reasonably be required at the time of the injury and at any time thereafter * * The significance of that sentence is that the obligation to provide services is that of the association or insurer, not the employee. The section further provides, “If the association fails to so furnish reasonable * * * nursing * * * when needed after notice of the injury * * * the injured employee may provide said * * * nursing * * * at the cost and expense of the association.” That sentence fortifies the idea that it is the association’s obligation, not the employee’s. We then come to the portion quoted above and relied upon by Transport. Stating its requirements affirmatively, the section says that either of two persons can seek recovery. The employee himself can recover amounts that he has “expended or incurred.” The employee is not the only one who can recover, however. The section goes on to state that “any person who supplied the same (is) entitled to recover of the association therefor * * Mrs. Polk, as the person who supplied the services, was entitled to seek recovery directly against the association without proof that she has expended or incurred the sums. Maryland Casualty Co. v. Hendrick Memorial Hospital, 141 Tex. 23, 169 S.W.2d 969 (1943).

Transport cites and relies upon several cases from other jurisdictions which hold that a wife may not recover for nursing services which she renders her husband because they are a part of the marital obligation of a wife. Bituminous Casualty Corp. v. Wilbanks, 60 Ga.App. 620, 4 S.E.2d 916 (1939); Graf v. Montgomery Ward & Co., 234 Minn. 485, 49 N.W.2d 797 (1951); Claus v. De Vere, 120 Neb. 812, 235 N.W. 450 (1931). In Wilbanks and De Vere the courts wrote about ordinary services and those of the ordinary housewife. Graf denied the claim because the services concerned were the usual tasks of a housewife and mother. Transport did not object to the special issues on the ground that they permitted recovery for Mrs. Polk’s services which were ordinary marital duties. There is medical and other testimony that Mr. Polk requires constant attention and aid and that Mrs. Polk’s care of her quadriplegic husband is an extraordinary service beyond that contemplated by the marital relationship. In 2 Larson, Workmen’s Compensation Law 85, § 61.13 the law is summarized:

“ * * * The earlier cases denied the allowance, on the ground that the wife did no more than she was bound to do as an affectionate spouse. Later cases, however, have permitted the charge, on the reasoning that the employer, by statute, has the affirmative duty of furnishing this kind of nursing service. If he has not done so, and if the wife then takes over these duties in addition to her regular household work and does exactly what a hired nurse would have had to do, the charge is proper.”

Frame v. Frame, 120 Tex. 61, 36 S.W.2d 152, 73 A.L.R. 1512 (1931), also cited by Transport, concerned a wife’s written-agreement with her husband by which he agreed to pay her for her services as a housekeeper. The court struck down the agreement because the wife owed the services independently of contract and because it was against public policy. The case is not in point. Mrs. Polk does not seek to enforce a contract she has with her husband. She seeks recovery directly against Transport by reason of its statutory duty to pay for extraordinary services which she has rendered her injured husband. Such recovery is permitted. California Cas. Ind. Exchange v. Industrial Accident Comm., 84 Cal.App.2d 417, 190 P.2d 990 (1948); Oolite Rock Co. v. Deese, 134 So.2d 241 (Fla.Sup.Ct.1961); Brinson v. Southeastern Utilities Service Co., 72 So.2d 37 (Fla.Sup.Ct.1954); Brown v. Dennis, 114 So.2d 335 (Fla.Dist.Ct.App.1959); Crunkleton Electric Co. v. Barkdoll, 227 Md. 364, 177 A.2d 252 (1962); Collins v. Reed-Harlin Grocery Co., 230 S.W.2d 880 (Mo.Ct.App.1950); Daugherty v. City of Monett, 238 Mo.App. 924, 192 S.W.2d 51, 56 (1946); Berkowitz v. Highmount Hotel, 281 App.Div. 1000, 120 N.Y.S.2d 600 (1953); 99 C.J.S. Workmen’s Compensation § 268.

Transport’s third point is that there is no evidence to support the findings of the jury as to the value of the nursing services rended by Mrs. Polk to her husband. Mrs. Polk did not seek recovery for her usual domestic duties as a wife. She did not even assert her claim for her extraordinary services for nursing her husband for the first seventeen months after he returned home from a hospital. Her claim is for services rendered her husband which are like those performed by Mr. Tejada, but during the time he was not on duty. Those are such services as cutting up bis food, holding a glass or a cup while he drinks, turning him over in bed every two hours, raising and lowering him in bed, seeing that he does not become malpositioned in bed, keeping him and the bed clean and dry to avoid ulcers, rubbing his skin with alcohol, keeping him covered at night, providing medication for him during his sleepless nights, draining his urine bag, and cleaning Mr. Polk and changing the bed linens following his bowel movements. These are services that three doctors said were necessary and which Mr. Tejada performed when he was present. Mr. Te-jada testified that one learns this kind of nursing care from actual practice. He, as a licensed vocational nurse, received $1.69 an hour. The jury allowed Mrs. Polk, according to computation, $1.24 an hour for a part of her service and $1.13 for the rest. An ordinary sitter would receive $1.25 an hour, according to Mr. Tejada. The jury had evidence that Mrs. Polk was performing nursing services like those performed by Mr. Tejada but allowed her the minimum that the evidence shows would be paid to one who simply sat up with a patient. We can not say there is no evidence of the value of her nursing services.

The judgments of the trial court and the Court of Civil Appeals are affirmed.

      . “Sec. 7a. If it be shown that the association is furnishing medical aid, hospital services, chiropractic services, and medicines provided for by Section 7 hereof in such manner that there is reasonable ground for believing that the life, health or recovery of the employee is being endangered or impaired thereby, the Board may order a change in the physician, chiropractor or other requirements of said section. If the association fails promptly to comply with such order after receiving it, the Board may permit the employee or some one for him to provide the same at the expense of the association under such reasonable regulations as may be provided by said board.”


text:
    W. J. HAMMER, Jr., Petitioner, v. DALLAS TRANSIT COMPANY, Respondent.
    No. A-10850.
    Supreme Court of Texas.
    March 16, 1966.
    Rehearing Denied April 20, 1966.

      Helm, Jones & Pletcher, Houston, for petitioner.
    Turner, Atwood, Meer & Francis, Dean Carlton, Dallas, for respondent.
   POPE, Justice.

Our former opinion is withdrawn and the following is substituted.

Plaintiff W. J. Hammer, Jr., recovered a judgment on a jury verdict for $25,000 for personal injuries arising out of a two-car collision. The jury found that Dallas Transit Company’s bus driver was negligent in traveling on the wrong side of the road which proximately caused the collision between Hammer’s vehicle and defendant’s bus. The Court of Civil Appeals, in reversing the judgment of the trial court, held that plaintiff’s issue “traveling on the wrong side of the road” was global; the evidence conclusively shows that defendant’s bus was out of control; and the defendant was under no burden to prove that its bus was excusably out of control. 390 S.W.2d 823. We reverse the judgment of the Court of Civil Appeals.

Hammer was driving in a -northerly direction toward downtown Dallas on the Houston Street Viaduct while it was raining. Transit’s bus was proceeding in the opposite direction on the viaduct. The viaduct had four lanes, two for northbound traffic and two for southbound. As Hammer drove north, he approached a curve to the west. He was on his right-hand side of the center line but was in the lane near the center of the viaduct. As Transit’s bus approached the curve, headed south, the driver turned from the inside or curb lane into the lane near the center of the viaduct so the bus could more easily make the turn around the curve. Instead of turning at the curve, the bus moved straight ahead, crossed the center line several feet and collided with Hammer’s vehicle. There was evidence that the road was wet. No one disputes the fact that the collision occurred at a point which placed Transit’s bus several feet in the wrong lane of traffic.

The jury found that (1) the traveling on the wrong side of the road by the Transit’s Company’s bus was negligence, (2) which was a proximate cause of the collision; (3) the bus driver failed to maintain such control of the bus as would have been maintained by a person of ordinary prudence, (4) which was a proximate cause; (5) the collision was not the result of an unavoidable accident; (6) at the time and just before the collision the bus did not skid suddenly and unexpectedly; (7) (unanswered) and (8) damages. Hammer has abandoned any claim to a judgment based upon the findings on the third and fourth issues on control by reason of our recent decision in Barclay v. C. C. Pitts Sand and Gravel Co., 387 S.W.2d 644 (Tex.Sup.1965).

The Court of Civil Appeals held that the first special issue was also a general charge. The issue is:

“Do you find from a preponderance of the evidence that at the time and on the occasion in question the Dallas Transit Company’s bus traveling on the wrong side of the road was negligence as that term has been defined for you? ”

It is our opinion that the issue was not general or global. It sufficiently narrows and confines the inquiry to one act out of a multitude of other possible driving faults. The findings on the first two issues constitute a basis for a judgment for the plaintiff, Hammer.

Transit argues and the Court of Civil Appeals has held that the issue is the same as one which inquires about loss of control which is a general issue that was repudiated by Barclay v. C. C. Pitts Sand and Gravel Co., supra. Its argument is as follows: Hammer proved that Transit’s bus was across the center of the road; Transit proved that its bus was out of control at the time it crossed the center line; as a matter of law, this excused its presence on the wrong side of the road unless Hammer proved some specific negligent act or omission by Transit, which caused the loss of control of its bus; Hammer did not allege nor obtain findings of any specific negligent act or omission for Transit’s loss of control; and Transit is therefore entitled to a judgment. Transit relies upon Barclay, supra.

In Barclay, we held that a finding that a defendant failed to keep his truck under proper control was global. In that case, the plaintiff relied upon the general loss-of-control issue to establish primary negligence. In this case, the plaintiff does not rely upon loss of control. His issue was that the defendant was traveling on the wrong side of the road. In this case the defendant relied upon loss of control to prove excuse for its own negligence. Its argument is that when it proved the general and unexplained loss of control, it then cast upon the plaintiff the burden to prove the specific reasons that it, the defendant, lost control. We reject the contention. Under Barclay, we held that one may not rely upon the general and unspecified loss-of-control issue. Now the defendant relies upon the same generalized concept. Pressed to its limits, that argument would mean that one’s grossly negligent loss of control, would amount to a legal excuse. The burden was upon the defendant Transit to go forward with the evidence to prove not merely its own loss of control but that the loss of control was excusable.

An analagous situation is found in instances in which one relies upon and proves the fact that his adversary violated a statutory standard. The one charged with such a violation may then go forward with the evidence and show excuse or justification for the violation. See Calvert, Special Issues Under Article 6701d, § 86(d), 34 Tex.L.Rev. 971, 977. But it is the one seeking to justify or excuse the violation who has the burden of going forward with the evidence. Younger Bros. v. Marino, 198 S.W.2d 109, 113 (Tex.Civ.App.1946, writ ref. n. r. e.) ; Jessee Produce Co. v. Ewing, 213 S.W.2d 750 (Tex.Civ.App.1948, no writ); Note, 27 Tex.L.Rev. 866. When he does so, he thrusts upon the other party the burden to obtain a finding that the violation was negligence under the common-law standard. Cunningham v. Suggs, 340 S.W.2d 369, 374 (Tex.Civ.App.1960, writ ref. n. r. e.); Phoenix Refining Co. v. Powell, 251 S.W.2d 892 (Tex.Civ.App.1952, writ ref. n. r. e.); Fisher v. Leach, 221 S.W.2d 384, 390 (Tex.Civ.App.1949, writ ref. n. r. e.); Taber v. Smith, 26 S.W.2d 722 (Tex.Civ.App.1930, no writ); Hodges, Special Issue Submission in Texas, § 25 (1959). The burden of persuasion on the whole case remains on the one relying upon the statutory violation. See Grieger v„ Vega, 153 Tex. 498, 271 S.W.2d 85 (1954). Phoenix, supra, the one who was in the wrong traffic lane went forward with the evidence and proved that a suddenly deflated tire accounted for his position on the road. He proved an excuse for being on the wrong side of the road. In Dallas Transit Co. v. Tolbert, 337 S.W.2d 617 (Tex.Civ.App.1960, writ ref. n. r. e.), upon which Transit strongly relies, Tolbert proved that he proceeded after the accident into the wrong lane of traffic, because his vehicle was excusably out of control.

The Court of Civil Appeals in this case has held that the evidence conclusively showed that defendant’s bus was out of control. The jury apparently did not believe defendant’s explanation that the bus was out of control. It found that the bus was negligently traveling on the wrong side of the road and, contrary to defendant’s contention, that it did not skid suddenly and unexpectedly. There was evidence that the road was wet and that Transit’s bus skidded out of control. However, its bus driver also testified that he was driving south in the outside or curb lane until he was about seventy-five feet from the turn in the viaduct. He then “pulled the front of the bus over about two feet into the inside lane in order to make the right turn. * * * ” “Well, it is a short turn and you have to pull over into the inside lane maybe two or three feet in order to get around the curve.” He explained that in attempting the turn, the bus slid across the center line. There was some evidence, therefore, that Transit’s bus driver directed and drove the bus from the outside lane toward the center line to make the turn.

Transit argues that it established a complete defense when it proved that its bus was out of control. It relies upon Dallas Transit v. Tolbert, supra, as did the Court of Civil Appeals, in its contention that it established a complete defense when it proved its bus was out of control. In Tol-bert as well as this case, all jury findings were against Transit. In our opinion Tol-bert does not support Transit’s contention, because in that case, the one charged with being on the wrong side of the road proved that his vehicle was excusably out of control. Moreover, the vehicle went out of control after the accident with the defendant; whereas in the present case, defendant’s vehicle was out of control before and was the cause of the accident. We shall need to review some of the facts in the Tolbert case.

Tolbert was driving a truek south on an expressway when a Transit Company bus, also headed south on a feeder road, converged with the expressway and Tolbert’s truck. When Transit’s bus moved onto the expressway from the inlet road, Tolbert applied the truck brakes and tried to turn' to his left to avoid hitting the bus. The truck jackknifed so that the tractor turned completely around and Tolbert, the driver, was facing north while the tractor and trailer continued to move south. Tolbert’s truck continued to move across the southbound expressway; it crashed into and over the median which separated the southbound and northbound traffic; and in the northbound lane it hit another car driven by William L. Crowley. Tolbert’s suit was against Transit for the events which occurred in the southbound lane, and the fact that Tolbert hit Crowley in the northbound lane are facts that are not present in our case. It was after, not before, the negligent acts of Transit, that Tolbert lost control of his truck. His being in the wrong lane of traffic with respect to Crowley was immaterial to Transit’s negligence which occurred in the southbound lane. Tolbert’s being in the northbound or wrong lane of traffic did not cause the original accident with Transit. It was in this context that the court discussed loss of control in Dallas Transit Co. v. Tolbert.

In Tolbert, the jury found that Transit was negligent in moving onto the expressway in front of Tolbert without keeping a proper lookout and also in proceeding onto the expressway before it had become reasonably safe to do so. The Court submitted contributory negligence issues which inquired about six different acts or omissions and the jury found for the plaintiff on all of them. The Court refused to submit a contributory negligence issue which inquired whether Tolbert “drove” his truck onto his left-hand side of the expressway instead of on the right-hand side of the highway. That issue concerned a collision with Crowley who was not a party to the suit. For many reasons, Tolbert does not control this case. The Court of Civil Appeals held in Tol-bert that the evidence conclusively showed that Tolbert did not “drive” into the wrong or northbound lane, because all the evidence showed that he crashed into the dividing concrete median, was knocked loose from the steering wheel and was on the floor of the cab which was moving backwards when it moved into the northbound lane. The Court held that Tol-bert was not “driving” because the truck was out of control. In the present case, Transit’s driver was at the wheel, driving; and he testified that he voluntarily directed the bus from the outside lane toward the inside lane. In the Tolbert case, Tolbert was in the wrong lane of traffic with respect to the Crowley vehicle, but he was not in the wrong lane of traffic with respect to defendant Transit’s bus. The transaction between Tol-bert and Transit occurred entirely in the southbound lane when neither vehicle was in the wrong lane of traffic. In the present case, with respect to the transaction between Hammer and Transit, Transit’s bus was in the wrong lane of traffic. In Tolbert, the refused issue inquired about plaintiff’s being in the wrong lane of traffic with respect to a person who was not a party to the litigation. In this case, the issue inquired about the defendant’s being in the wrong lane of traffic with respect to plaintiff. In Tol-bert, the one who was in the wrong lane of traffic fully excused the fact. In this case, the defendant who was in the wrong lane of traffic argues that he need not prove excuse. Tolbert is not applicable.

The Court of Civil Appeals was also of the opinion that plaintiff did not sufficiently plead that defendant was negligent in being across the center of the road. Flaintiff generally described the nature of the accident and in doing so stated that defendant’s bus crashed into plaintiff’s car “when said bus crossed the center dividing strip on said street.” In a subsequent paragraph of the pleading, plaintiff stated several specific acts and omissions of negligence without repeating that the bus was across the center of the road. Defendant urged no exceptions to the pleadings. See Kainer v. Walker, 377 S.W.2d 613 (Tex.Sup.1964). Plaintiff called upon defendant for admissions and there was an admission that the bus was across the center of the street. Defendant knew that plaintiff was relying upon that admission. An examination of the statement of facts shows that the ease was tried upon that basis by both sides. We can not say that defendant was surprised or did not have fair notice of plaintiff’s theory of the case. Gulf, Colorado & Santa Fe Railway Co. v. Bliss, 368 S.W.2d 594 (Tex.Sup.1963).

The Court of Civil Appeals, without discussion, sustained a number of Transit’s points that the jury findings are against the great weight of the evidence. This Court has no jurisdiction to rule on those points. Since the Court applied the wrong rule of law with respect to the one who had the burden to go forward with the evidence to excuse or show the reasons that defendant’s bus was out of control, we remand the case to the Court of Civil Appeals for consideration of those points. Bond v. Otis Elevator Co., 388 S.W.2d 681, 687 (Tex.Sup.1965).

The judgment of the Court of Civil Appeals is reversed and the cause is remanded to that court. The motion for rehearing is overruled, and the parties are given fifteen days in which to file an additional motion for rehearing.


author: NORVELL, Justice. HAMILTON, Justice

text:
    Samuel Harold COOPER, Relator, v. The STATE of Texas et al., Respondents.
    No. A-11109.
    Supreme Court of Texas.
    March 16, 1966.
    Sam Houston Clinton, Jr., Austin, for relator.
    Jules Damiani, Jr., Dist. Atty., Galveston, for respondents.
   NORVELL, Justice.

This is an original action for mandamus filed in this Court under Article 5, § 3 of the Texas Constitution, Vernon’s Ann.St. and Article 1734, Vernon’s Ann.Tex.Stats. Although this proceeding relates to a criminal cause now pending in the District Court of Galveston County, Texas, jurisdiction to issue the writ of mandamus is vested in this Court rather than in the Court of Criminal Appeals. See Appellate Procedure in Texas, § 1.4. The relator, Samuel Harold Cooper, stands charged with unlawfully possessing marihuana in Cause No. 29,067 on the docket of the District Court of Galveston County, 56th Judicial District, and he now contends that he is entitled to an order commanding that the State of Texas bring him speedily to trial upon such charge or dismiss the cause. He invokes Article 1, § 10 of the Texas Constitution and the Sixth and Fourteenth Amendments to the Constitution of the United States, and names as respondents the State of Texas, County of Galveston, W. E. Stone, Judge of the 56th District Court, and Jules Damiani, Jr., Criminal District Attorney of Galveston County.

Relator is an indigent federal prisoner. The state marihuana indictment was returned and filed on May 24, 1962 and relator admitted to bail. On February 20, 1963, he was convicted on a narcotics charge and sentenced to a term of five years by the United States District Court for the Western District of Texas. At present he is incarcerated in the Federal Correctional Institution at Texarkana, Texas, and is thus in the custody of the United States through its Department of Justice and Bureau of Prisons.

As a predicate for the present action, the relator filed a petition for a writ of habeas corpus ad prosequendum in the 56th District Court in which he prayed that he be brought to Galveston and tried on the marihuana charge or that said charge be dismissed. His petition was denied by the respondent, Hon. W. E. Stone, Judge of said court. Had this writ been granted, it would have been necessary for the State to request the federal authorities to produce relator before the state court.

The stipulation of facts and exhibits filed herein indicate that should the state authorities elect or be ordered to proceed with the prosecution of the state marihuana charge and comply with certain conditions specified by the federal prison authorities, the relator would be produced for trial in the state court. These conditions are prescribed in a bulletin issued on October 9, 1963 by the Bureau of Prisons. The directive among other things prescribes that, if a state or other local non-federal jurisdiction desires that a federal prisoner be produced in a non-federal court in connection with a criminal prosecution, the proper officer of the state must make an application therefor to the Director of the Bureau of Prisons. Various conditions are prescribed relating to the custody, care, shelter and subsistence of the federal prisoner. Deputy federal marshalls must at all times accompany the prisoner and retain custody of him while away from the federal penal institution. The directive then concludes:

“Unless specifically modified by the Director, Bureau of Prisons, these conditions must be accepted by the applicant before an inmate in the custody of the Federal Government may be produced upon a writ of habeas corpus.
“It is the responsibility of the Marshal to see that the proper writ of habeas corpus * * * ad prosequendum, in the case of a defendant in a criminal proceeding, should be presented to him as his authority and that satisfactory arrangements for payment of expenses are made before the prisoner is actually removed to the place of trial.”

In State ex rel. Moreau v. Bond, District judge, 114 Tex. 468, 271 S.W. 379 (1925), this Court held that when a prisoner was confined in a Texas penal institution, a plea that such prisoner was “wholly without and beyond the jurisdiction of the district court * * * to try him for another offense” was not in law a sufficient plea to bar a prisoner’s right to a speedy trial under the provisions of Article 1, § 10 of the Texas Constitution. However, despite some cases holding to the contrary, it appears that a different rule is applicable when two separate sovereignties are involved.

In Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607, 22 A.L.R. 879 (1922), it was recognized that, “We live in the jurisdiction of two sovereignties” and under the doctrine of comity, the Attorney General of the United States was vested with discretion to render a federal prisoner available to a state court for trial upon a state offense under such conditions as he might prescribe. Obviously a state does not possess the power to control the Attorney General’s discretion and compel him to produce a federal prisoner before a state court for trial. The problem dissolves into one of sovereignty and not a mere squabble over conditions presently prescribed or which may be hereafter prescribed by the Department of Justice relating to the production of a federal prisoner before a state court.

This was clearly pointed out in the leading case of Ex parte Schechtel, 103 Colo. 77, 82 P.2d 762, 118 A.L.R. 1032 (1938). The Colorado Court recognized the general rule that a "sovereign may not deny an accused person a speedy trial by reason of the circumstance that he is incarcerated in one of that sovereign’s penal institutions under a prior conviction and sentence in a court of that sovereign”. However, it was held that a distinction must he recognized when the prisoner is held by another sovereignty. In speaking directly to this point, the Colorado Court in Schechtel said:

“Obviously, a very different situation exists where, as here, the United States has first acquired jurisdiction and custody of the petitioner and at the time the state indictment was returned, as well as during the period of delay, the federal government, and not the state of Colorado, has had him under exclusive control. • Under such circumstances it would seem certain that unless, during the term of petitioner’s federal sentence, an unqualified and absolute right reposed in the Colorado authorities to require the United States to permit the presence of the petitioner for trial before the Colorado court in which the indictment is pending, and without which presence no trial could be held, that the prosecuting officers of the state could not be charged with unreasonable delay in failing to proceed with the trial on the state indictment.”

This distinction was again clearly pointed out by an eminent panel of judges of the Tenth Circuit in McCary v. State of Kansas, 281 F.2d 185 (1960, cert. denied, 364 U.S. 850, 81 S.Ct. 94, 5 L.Ed.2d 73), wherein it was said:

“It is well settled that the failure of a state to bring a defendant to trial on a state charge during the period of his confinement in a federal penal institution on a federal charge will not support a claim of denial of a speedy trial by the state court. The reason for the rule is that he is in custody in the federal penal institution because of his own wrongdoing and is beyond the custody and control of the state court, even though the federal government might grant the request of the state for custody of the defendant for the purpose of trial on the state charge.” (Emphasis added.)

The question is one of power and authority and is in no way dependent upon how or in what manner the federal sovereignty may proceed in a discretionary way under the doctrine of comity. A contrary view not only seems obnoxious of one’s understanding of the nature of sovereignty, but apparently embraces a theoretical anomaly. If the United States Department of Justice refuses under any circumstance to allow a prisoner to leave a federal penitentiary for the purpose of trial in a state court, the prisoner is not deprived of his right to a speedy trial by a state, but, if the Department is willing to allow the prisoner to leave the penitentiary under certain stated conditions, then the state if it does not accept such conditions and bring the prisoner to trial does violate the prisoner’s constitutional rights. This position seems patently unsound. If a state regards the federal charge for guard, transportation or other services as exorbitant, should a determination of excessiveness be taken as the test of one’s constitutional rights? Obviously not. The true test should be the power and authority of the state unaided by any waiver, permission or act of grace of any other authority. This seems to be the majority rule and we adhere to it. Frankel v. Woodrough, 10 F.2d 360, 361 (8th Cir. 1926), Nolan v. United States, 163 F.2d 768 (8th Cir. 1947, cert. den., 333 U.S. 846, 68 S.Ct. 649, 92 L.Ed. 1130), Re Yager’s Petition, 138 F.Supp. 717 (Dist.Ct.Ky.1956), United States v. Jackson, 134 F.Supp. 872 (Dist.Ct.Ky.1955), Lee v. State, 185 Ark. 253, 47 S.W.2d 11 (1932), Raine v. State, 143 Tenn. 168, 226 S.W. 189 (1920), State v. Hall, 266 Minn. 74, 123 N.W.2d 116 (1963), State of Minnesota v. Larkin, 256 Minn. 314, 98 N.W.2d 70 (1959), Application of Melton, 342 P.2d 571 (Okl.Cr.App.1959), Petition of Norman, 184 A.2d 601 (Del.Sup.1962), Kirby v. State, 222 Md. 421, 160 A.2d 786 (1960), cert. den., 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74.

For the reasons stated, we deny relator’s prayer that the Hon. W. E. Stone, Judge of the 56th District Court, be ordered to issue the writ of habeas corpus ad prosequendum and proceed to trial in said Cause No. 29,-067 on the docket of said 56th District Court, or, in the alternative, dismiss said cause.

Petition for mandamus denied.

HAMILTON, Justice

(dissenting).

I respectfully dissent. The court recognizes that the law in this state as well as the majority rule in most other states is that an accused must be afforded a speedy trial after indictment even though he is incarcerated in that same sovereign’s penal institution under a prior conviction and sentence. State ex rel. Moreau v. Bond, 114 Tex. 468, 271 S.W. 379 (1925); 118 A.L.R. 1037. Moreover, this court has held in Wilson v. Bowman, 381 S.W.2d 320 (Tex.Sup.1964) that both the court and the prosecution are under a positive duty to prevent unreasonable delay in bringing an accused to trial and when the court has the power to act it must do so.

However, the court holds that a different rule is applicable here because two separate sovereignties are involved. It holds in effect that even though the state in the instant case has the power to afford the accused a speedy trial, it is under no duty to do so, because it has derived its power to afford a speeedy trial from waiver, permission or act of grace of the federal sovereignty. The writer is of the opinion that the more reasonable rule and the one more in harmony with the constitutional purpose, both state and federal, providing for or insuring a speedy trial for the accused, is that where the state has the power to afford the accused a speedy trial it is under a duty to do so. People v. Piscitello, 7 N.Y.2d 387, 198 N.Y.S.2d 273, 165 N.E.2d 849 (1960); State v. Patton, 76 N.J.Super. 353, 184 A.2d 655, affirmed 42 N.J. 323, 200 A.2d 493 (1964); Commonwealth v. McGrath, 348 Mass. 748, 205 N.E.2d 710 (1965); State ex rel. Fredenberg v. Byrne, 20 Wis.2d 504, 123 N.W.2d 305 (1963); Taylor v. United States, 99 U.S.App.D.C. 183, 238 F.2d 259, 261 (1956).

Under the undisputed facts of this case the state has the power to afford the relator a speedy trial, and no valid excuse has been offered as to why that power should not be exercised. This is especially true since the state is not required to surrender any of its sovereignty in order to give the relator the relief requested.

The relief prayed for in the relator’s writ of mandamus should-be granted.

CALVERT, C. J., and SMITH and GREENHILL, JJ., join in this dissent.

      . Artiele 1, § 10 of the Texas Constitution in part provides:
      “In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. * ⅜ * ”

      . This is in accordance with the holding of the Moreau case. See, 118 A.L.R. 1037.


author: CALVERT, Chief Justice.

text:
    NORTH EAST INDEPENDENT SCHOOL DISTRICT, Petitioner, v. Guy ALDRIDGE, Respondent.
    No. A-10983.
    Supreme Court of Texas.
    March 30, 1966.

      Foster, Lewis, Langley, Gardner & Hawn, Willis T. Taylor, San Antonio, with above firm, for petitioner.
    Frank Y. Hill, Jr., San Antonio, for respondent.
   CALVERT, Chief Justice.

Guy Aldridge appealed from a trial court judgment awarding a recovery from him by North East Independent School District of damages in the sum of $30,000.00. The Court of Civil Appeals dismissed the appeal upon a holding that the trial court’s judgment was not a final judgment. 392 S.W.2d 607. We reverse the judgment of the Court of Civil Appeals and order the appeal reinstated.

School District’s suit was based upon an alleged breach of a written contract between it and Aldridge. By the terms of the contract Aldridge agreed to sell and School District agreed to buy a tract of 20.963 acres of land at a price of $3,500.00 per acre, and Aldridge obligated himself to construct a sewer line along a section of the southern boundary and streets along the northern and western boundaries of the tract. The petition alleged that School District had fully -performed its obligations, but that Aldridge had failed-to construct the sewer line and the streets. Aldridge’s amended answer included a plea in abatement, a general denial, a plea that the contract was in reality made by School District with King-G-Hills Development Company for which he acted only as agent in executing the contract, and, with permission of the court, a cross-action against King-O-Hills Development Company to recover any sum which he might be adjudged liable to pay to School District. At a later date he filed a supplemental answer in which he pleaded that School District was estopped to assert its claim against him. King-O-Hills was duly cited and filed its answer to the cross-action. The record indicates that on June 5, 1964, the case was set for trial on the jury calender for the month of October, 1964.

School District moved for summary judgment on its claim against Aldridge for the damages sued for, or, alternatively, on the issue of Aldridge’s personal liability for damages for breach of the contract. Al-dridge filed an answer to the motion in which he asserted that there was an issue of fact concerning his personal liability inasmuch as School District knew that in executing the contract he was acting only as agent for King-O-Hills Company, and also an issue of fact concerning the amount of the damages. On July 8,1964, the trial court granted School District’s motion on its alternative prayer and rendered judgment that Aldridge was personally liable for damages for breach of the contract. The judgment also directed that “this cause proceed to triál upon the sole remaining issue of the amount of damages to which the plaintiff is entitled.”

On October 5, 1964, the attorneys for School District and the attorney for Al-dridge entered into a written stipulation that the damages suffered by School District as a result of the failure to construct the sewer line and streets amounted to $30,000.00. Thereupon, the court rendered judgment that North East School District recover of and from Guy Aldridge the sum of $30,000.00 with interest and costs. The judgment was approved as to form by the attorneys for both parties. There is no mention in the judgment of the third-party defendant, King-O-Hills Company, and no disposition is made therein of the cross-action by Aldridge against such defendant. It was because of the failure of the judgment to dispose of the cross-action that the Court of Civil Appeals held that it was not a final judgment. It is that holding which we are called upon to review.

The finality of judgments for ap-pealability has been a recurring and nagging problem throughout the judicial history of this State. We have steadfastly adhered through the years to the rule, with certain exceptions not applicable here, that an appeal may be prosecuted only from a final judgment and that to be final a judgment must dispose of all issues and parties in a case. Gulf, C. & S. F. Ry. Co. v. Fort Worth & N. O. Ry. Co., 68 Tex. 98, 2 S.W. 199, 3 S.W. 564 (1886); Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377 (1941). The rule is deceiving in its apparent simplicity and vexing in its application.

In Linn v. Arambould, 55 Tex. 611 (1881), this Court reviewed many of the earlier decisions and announced rules for determining finality which no doubt were thought adequate to settle all future questions in the area. If so, the thought died aborning. In one of the rules announced, the Court said that to be final “the judgment must in substance show intrinsically, and not inferentially, that the matters in the record had been determined in favor of one of the litigants, or the rights of the parties in litigation had been adjudicated.” 55 Tex. 619. That rule has long since passed into limbo. It was too simple. By its application most judgments easily became black or white — final or interlocutory; but all too often judgments which were obviously intended to be final were being held interlocutory because of careless draftsmanship. The rule had to be changed to accommodate oversight or carelessness.

In 1896 this Court decided Rackley v. Fowlkes, 89 Tex. 613, 36 S.W. 77. No question of finality of a judgment was involved; only a question of res judicata. In a prior suit the plaintiff sought to recover title to land and rents from the land. The trial court’s judgment awarded recovery of title to the land but did not mention the issue of rents. The plaintiff then filed a second suit for rents. This Court held that the defendant’s plea of res judicata should have been sustained in the absence of a showing by the plaintiff that in his first suit he withdrew his count for rents or the court refused to decide it. The holding was bottomed upon a rule stated by the Court, as follows (36 S.W. 78):

“The proposition seems to be sound in principle' and well supported by authority that where the pleadings and judgment in evidence show that the pleadings upon which the trial was had put in issue plaintiff’s right to recover upon two causes of action, and the judgment awards him a recovery upon one, but is silent as to the other, such judgment is prima facie an adjudication that he was not entitled to recover -upon such other cause.”

The Court arrived at the rule by indulging “the presumption that the [trial] court performed the duty devolved upon it upon the submission of the cause by disposing of every issue presented by the pleadings so as to render its judgment final and conclusive of the litigation * * Taking no notice of the rule announced in Linn v. Arambould, or of the distinction between rules governing finality of judgments and those relating to res judicata, the Court in Davies v. Thomson, 92 Tex. 391, 49 S.W. 215 (1899), applied the rule quoted from Rackley v. Fowlkes in holding that a judgment which awarded plaintiffs relief they sought in one particular would “be construed” to deny relief they sought in another particular. Davies v. Thomson has been followed by our latest decisions on the subject. See Gamble v. Banneyer, 137 Tex. 7, 151 S.W.2d 586 (1941); Vance v. Wilson, Tex.Sup., 382 S.W.2d 107 (1964).

The decision -in Davies v. Thomson obviously did not necessarily settle the issue of finality of a judgment which granted relief to a plaintiff but failed to dispose expressly of a cross-action or counterclaim by the defendant against the plaintiff. The Courts of Civil Appeals were badly divided in their rulings on the finality of judgments of that character. The issue was settled by this Court in favor of finality in Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161 (1913). The Court dealt a final blow in that case to the rule announced in Linn v. Arambould by indicating, in effect, that it was a dictum. For the first time the Court spoke of the disposition of issues by implication and by necessary implication; but it did so only in referring to holdings of various Courts of Civil Appeals. It should be noted that the Court did not hold that the defendants’ cross-action in Trammell v. Rosen was disposed of by necessary implication, or even by implication. Instead, the Court stated that the “principle” which controlled Rackley v. Fowlkes and Davies v. Thomson was “applicable in great measure to this case.” 157 S.W. 1163. That “principle” was, of course, that a presumption would he indulged that the court’s judgment disposed “of every issue presented by the pleadings so as to render its judgment final and conclusive of the litigation and, in the absenee of a showing that a claim for relief had been withdrawn or that the court refused to decide it, that the judgment would be “construed” to deny all relief not expressly granted. The Court need not have gone quite so far in Trammell v. Rosen. Instead of holding that the judgment would be construed as denying all relief sought in the pleadings and not expressly granted, the Court needed to hold only that the judgment would be construed as disposing of all issues made by the pleadings in the case. Whether the judgment was construed as denying all relief not expressly granted or as dismissing all claims for relief not expressly granted was immaterial -to the holding of finality. The distinction becomes important when the subsequent opinion of the Commission of Appeals in Burton Lingo Co. v. First Baptist Church of Abilene, Tex.Com.App., 222 S.W. 203 (1920), is considered.

In Burton Lingo Co. v. First Baptist Church of Abilene, Burton Lingo Co. sued a number of defendants, including a contractor and the sureties on his bond, on an account for materials furnished the contractor. A joint answer was filed on behalf of the contractor and the sureties. Bankruptcy was pleaded as a defense on behalf of the contractor, and the sureties pleaded their suretyship, and by cross-action sought a recovery over against the contractor. At the conclusion of the evidence the trial court instructed a verdict against the plaintiff on its claim against the contractor, and in favor of the plaintiff against the sureties. No instruction was given with respect to the sureties’ cross-action. The trial court’s judgment decreed that the plaintiff recover the amount of its account from the sureties, but it neither disposed of nor mentioned the sureties’ cross-action against the contractor.- The sureties appealed. The Court of Civil Appeals held that the judgment was not a final judgment and dismissed the appeal, 198 S.W. 1013. The Commission of Appeals called attention to the fact that a joint answer had been filed on behalf of the contractor and the sureties and observed that the record did not show that the sureties had objected to the failure of the trial court to instruct a verdict in their favor on their cross-action, or that they had complained of the failure of the trial court to award them a recovery on their cross-action at the time the judgment was rendered, in their motion for new trial, or in their appeal to the Court of Civil Appeals. Under these circumstances, said the court, “It is not unreasonable to presume in favor of the finality of the judgment that the sureties elected to waive and abandon their cross-action, or that a dismissal or discontinuance was had with reference thereto.” 222 S.W. 204. Here, as in Tram-mell v. Rosen, the Court was presuming that the trial court made disposition of the cross-action in a particular manner, when all that was necessary to a holding of finality was a presumption that the claim had been disposed of, as in Rackley v. Fowlkes and Davies v. Thomson.

Notice should be taken of the holding in Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377 (1941). In that case the defendant filed a plea in abatement and a cross-action against the plaintiff. The trial court entered a judgment sustaining the plea in abatement and dismissing the suit. No disposition was made of the cross-action. The plaintiff appealed. This Court held that the judgment dismissing the plaintiff’s suit did not by necessary implication dispose of the defendant’s cross-action against the plaintiff and was not final. The rationale of the decision is found in the Court’s statement that had the trial court intended to retain the cross-action for further consideration, it would have entered the very judgment which it .did enter. The effect of the holding is to engraft an exception upon the general rule formulated by the decisions preceding Davis. The exception may be stated thusly: It will not be presumed that a judgment dismissing a plaintiff’s suit on nonsuit, plea to the jurisdiction, plea in abatement, for want of prosecution, etc., also disposed of the issues in an independent cross-action.

There are a great number of decisions by Courts of Civil Appeals and by the Commissions of Appeals dealing with finality of judgments in various fact situations. It would serve no good purpose to review them here. Analysis of the decisions we have discussed is sufficient to lead us to the statement of a rule for determining, in most instances, whether judgments in which parties and issues made by the pleadings are not disposed of in express language are, nevertheless, final for appeal purposes. When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. A claim duly severed under Rule 41 is a “case” within the meaning of the foregoing rule. The rule will be subject to the exception created by Davis v. McCray Refrigerator Sales Corporation; but it will apply to separate claims of the plaintiff, cross-actions and counterclaims by defendants against the plaintiff, cross-actions, by defendants against other defendants and cross-actions by defendants against third-party defendants. Of course, the problem can be eliminated entirely by a careful drafting of judgments to conform to the pleadings or by inclusion in judgments of a simple statement that all relief not expressly granted is denied.

The rule announced disposes of the question to be decided in this case unless the statement contained in the court’s summary judgment is regarded as an order for a separate trial of the issue of damages. As heretofore noted, that judgment decreed that Aldridge was personally liable to School District for damages caused by breach of the contract, and then directed that “this cause proceed to trial upon the sole remaining issue of the amount of the damages to which the plaintiff is entitled.” We are not disposed to regard the quoted order as one entered under Rule 174 for trial of the separate issue of the amount of damages. The order speaks of the “cause” proceeding to trial of a particular issue; it does not speak of a separate trial of an issue as a preliminary matter or as independent of final trial o'f the cause. It indicates that at that stage of the proceedings the court overlooked the fact that under the pleadings there were other issues and parties to be disposed of when the case was reached for trial on the October, 1964, jury docket.

Under the rule announced, the presumption is that the judgment entered on October 7, 1964, disposed of Aldridge’s cross-action against King-O-Hills Development Company; and in the absence of a contrary showing in the record, we hold that the judgment entered on that date was a final judgment.

The proper judgment to be rendered by this Court is one reversing the judgment of the Court of Civil Appeals and ordering the cause reinstated on the docket of that court for consideration of the appeal on its merits. See Bay v. Mecom, Tex.Sup., 393 S.W.2d 819 (1965) ; Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161 (1913). It is so ordered.

SMITH, J., concurs in the result.

      . Emphasis ours throughout unless otherwise indicated.