author: HUGHES, Justice. HUGHES, Justice.

text:
    James O. GERST, Savings and Loan Commissioner of Texas et al., Appellants, v. GIBRALTAR SAVINGS ASSOCIATION, Appellee.
    No. 11477.
    Court of Civil Appeals of Texas. Austin.
    Feb. 8, 1967.
    Rehearing Denied March 1, 1967.
    Second Motion Denied March 22, 1967.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Paul W. Phy, John W. Fainter, Jr., Asst. Attys. Gen., John W. Stayton, Austin, Hutche-son, Taliaferro & Hutcheson, Thad T. Hutcheson, Houston, Sneed & Vine, Hough-ton Brownlee, Jr., Austin, DeLange, Hud-speth, Pitman & Katz, C. M. Hudspeth, Houston, for appellants.
    Joe R. Long, Brown, Sparks, Erwin, Ma-roney & Barber, Frank C. Erwin, Jr., Austin, for appellee.
   HUGHES, Justice.

This suit was filed by Gilbraltar Savings Association, appellee, against James O. Gerst, Savings and Loan Commissioner of Texas, to set aside an order made by him denying the application of appellee to open a savings and loan branch office at 1105— 1107 Main Street in Houston, Harris County, Texas. This order was entered following notice to all interested parties and a public hearing before the Commissioner.

The Commissioner made the findings required by Art. 852a, Vernon’s Ann.Tex.Civ. St. (Texas Savings and Loan Act)' and all were favorable to appellee except the Commissioner found that there was no public need for the proposed branch office, that the volume of business in the community in which the proposed branch office would conduct its business was not such as to indicate a profitable operation, and that the establishment of such office would cause excessive competition and result in undue harm to other existing associations.

In the trial court, interventions were filed by Houston First Savings Association, Benjamin Franklin Savings Association, Guaranty Federal Savings and Loan Association, and Metropolitan Savings Association. They aligned themselves with the Commissioner, and are appellants.

Trial to the court resulted in a judgment setting aside the order of the Commissioner above described, holding it null, void and of no force and effect, and remanding it to the Commissioner for further proceedings not inconsistent with the judgment. The basis of the court’s judgment was that the order of the Commissioner was not reasonably supported by substantial evidence. The trial court also held the order of the Commissioner was not supported by a preponderance of the evidence.

Four separate briefs have been filed by appellants. The points of error are not identical in all briefs. The principal appellant is the Commissioner. We will dispose of such points as he presents which are essential to our disposition of this case and then turn our attention to additional points made by the other appellants.

The first five points made by the Commissioner are jointly briefed. They are, in substance, that the trial court erred in not sustaining the motion in limine filed by the Commissioner in which he sought an order instructing all parties not to introduce or attempt to introduce any evidence which was not competent evidence introduced at the hearing before the Commissioner on the application of Gibraltar, and the error of the trial court in admitting on the trial testimony and evidence which had not been heard or admitted or noticed at such hearing.

We sustain these points.

Sec. 11.12(5) (b) of Art. 852a provides, in part, that upon judicial review of any act, order, ruling or decision of the Commissioner, except an order made under Sec. 8.14 of the Act which is not applicable here, “no evidence shall be admissible which was not adduced at the hearing on the matter before the Commissioner or officially noticed in the record of such hearing.”

The Supreme Court has held the Commissioner’s order is to “stand or fall upon the evidence adduced and matters noticed at the Commissioner’s hearing,” and that, “It is from this record that the District Judge is to determine whether or not the Commissioner’s order is arbitrary, i. e., whether it is reasonably supported by substantial evidence.” Gerst v. Nixon, Tex.Sup., 411 S. W.2d 350, November 30, 1966, affirming this Court in Tex.Civ.App., 399 S.W.2d 845.

By counterpoint, appellee contends that if the court erred in overruling the Commissioner’s Motion in limine, discussed above, such error was harmless under Rule 434, Texas Rules of Civil Procedure.

We agree that, per se, the error is harmless. However, if the evidence erroneously admitted is essential to support the judgment of the trial court, then the judgment must be reversed, not because of the improper admission of such evidence, but because, as a matter of law, the judgment is erroneous. Neither the trial court nor this Court has any discretion in determining whether appellee is to have the branch office it seeks. This discretion is vested exclusively in the Commissioner. The review by the courts is restricted to the legal question of whether the order of the Commissioner is reasonably supported by substantial evidence.

Appellee also has a counterpoint to one of the points under discussion to the effect that the trial court correctly admitted in evidence the testimony of Dr. Francis Yeager as such evidence was part of the record of the proceedings at the hearing before the Commissioner and properly certified by him to the court below.

We will not dwell upon this point because the record made before the Commissioner is before us and it, and it alone, is entitled to consideration by us in determining the legal validity of the order of the Commissioner.

The Commissioner’s last point is that the order in litigation was reasonably supported by substantial evidence.

Under this point the Commissioner argues only the requirement of the statute that a “public need for the proposed branch office be shown.”

At the hearing before the Commissioner, Gibraltar presented only two witnesses. Their testimony appears in Plaintiff’s Exhibit 3 which is the transcript of the proceedings before the Commissioner and, as stated above, is the only evidence properly before this Court. Witness Monteith testified only briefly and primarily identified one exhibit which was prepared under Mr. Monteith’s supervision. It must be noted, however, that Mr. Monteith did not furnish the data for the preparation of the exhibit, but merely prepared the exhibit from information furnished by Dr. Francis Yeager who was not present at the hearing before the Commissioner.

Mr. Michael Lallinger was the other witness who testified before the Commissioner. Mr. Lallinger is the president and chief executive officer of Gibraltar and has been employed by Gibraltar since 1956. Much of Mr. Lallinger’s testimony involved matters which are not in dispute and accordingly will not be discussed herein.

Mr. Lallinger testified:

“A It is such a long question, I think my answer may go in — If my answer doesn’t suffice, why, if you will give me that question again. My answer, sir, is this: I think there are enough associations in the downtown area to go and adequately serve that area. I do not think that there are enough branch offices of existing associations in the downtown area adequately to serve the area and take care of their customers, and anybody else that may want to transact business with them.”

Mr. Lallinger further testified:

“ * * * I don’t think a Federal and a Metropolitan is needed in the downtown area * * * I still think there is a need for a Gibraltar office if there are ten new charters put down there.”

Mr. Lallinger also testified that a number of appellee’s customers want a downtown service.

Appellee bases its case against the order of the Commissioner on the requirement of showing a “public need” primarily upon an affidavit of Dr. Francis Yeager which was admitted in evidence by the Commissioner on the hearing before him. The only other testimony before the Commissioner referred to by appellee in support of its attack on the order of the Commissioner is that of Mr. Lallinger wherein he testified that he did not think there were enough branch offices of existing associations in downtown Houston to adequately serve the area. This testimony of Mr. Lallinger has been quoted above.

Without consideration of the affidavit of Dr. Yeager, it is our opinion that the order of the Commissioner insofar as it found no public need for the proposed branch office is reasonably supported by substantial evidence. Moreover, it is our opinion that the evidence offered by ap-pellee to sustain a finding of public need was insufficient for that purpose under the rule that the finding must be reasonably supported by substantial evidence.

Savings and Loan Associations and their branches are, in their creation, governed by the same basic standards. Southwestern Savings and Loan Association v. Falkner, 160 Tex. 417, 331 S.W.2d 917. They are governed by the same laws and, as far as the public is concerned, perform identical services.

The testimony of Mr. Lallinger that there were enough associations in the downtown area to adequately serve that area is affirmative testimony from appel-lee’s own witness that no public need existed for a branch office in that area.

The Commissioner could not, in our opinion, find reasonable support in the testimony of Mr. Lallinger to sustain a finding contrary to the import of this testimony of Mr. Lallinger.

In addition, there were other witnesses before the Commissioners who testified that there was no public need for the branch office sought by appellee.

The Commissioner takes the position that the affidavit of Dr. Yeager was hearsay evidence. Taking this position, we assume that he did not consider such affidavit in ruling upon the application of appellee. If the Commissioner is wrong about this then this case should be sent back to him for reconsideration.

We are of the opinion that the affidavit of Dr. Yeager, being hearsay, was not substantial evidence upon which the Commissioner could base his decision, granting or refusing the application of appellee.

In Gerst v. Nixon, cited herein, the Court stated, “The circumstance that the record of the Commissioner’s hearing contains hearsay or other species of evidence deemed unreliable is a matter for the consideration of the trial judge in determining the issue of ‘substantial evidence.’ ”

“Hearsay” evidence, not subject to some exception, has no probative force, even though admitted without objection. Henry v. Phillips, 105 Tex. 459, 151 S.W. 533. It is, therefore, “unreliable.”

Art. 852a, Sec. 11.12(5) (b) provides, in part, that “ * * * all fact issues material to the validity of the Act, order, ruling, decision or rule or regulation complained of shall be redetermined in such trial on the preponderance of the competent evidence * *

The Court in Gerst v. Nixon, supra, has held, on Constitutional grounds, that the quoted portion of the statute is invalid. In view of the language of the Court in that opinion which we have previously quoted to the effect that hearsay and other unreliable evidence does not constitute substantial evidence, we cannot give significance to the elimination of the words “competent evidence” from the statute and hold that by the deletion of those words the Court intended to say that incompetent evidence could constitute substantial evidence.

Sec. 2.01 of Art. 852a contains the requirements of an application for a charter for a savings and loan association and calls for filing statements containing certain information and paragraph (4) of such section provides that all statements of fact tendered to the Commissioner in connection with such application shall be under oath.

Sec. 2.08 of Art. 852a provides, in part, that the Commissioner shall not approve any charter application unless he shall have affirmatively found from “* * * the data furnished with the application, the evidence adduced at such hearing and his official records, * * * ” certain prerequisites.

In Gerst v. Nixon, supra, the Court stated:

“The requirement that the Commissioner file a record of the proceedings had before him with the District Court clearly implies that such record is to be considered by the court. While the last phrase contained in Section 11.12, subsection 5(b), could have been more artfully worded, it seems reasonably clear that when considered in connection with other portions of the Act, the purpose of the words, ‘no evidence shall be admissible which was not adduced at the hearing on the matter before the Commissioner or officially noticed in the record of such hearing’, was to adopt the rule that the Commissioner’s order is to stand or fall upon the evidence adduced and matters noticed at the Commissioner’s hearing. It is from this record that the District Judge is to determine whether or not the Commissioner’s order is arbitrary, i. e., whether it is reasonably supported by substantial evidence.”

Appellee relying upon the record made before the Commissioner and certified to the District Court which contains the affidavit of Dr. Yeager and which does not contain any objection to its filing before the Commissioner contends that such affidavit was “officially noticed” and hence a part of the record to be considered by the trial court on appeal.

In Phillips v. Brazosport Savings and Loan Association, 366 S.W.2d 929, Tex. Sup.Ct., the Court construed Rule 2.1 of the Rules and Regulations for Building and Loan Associations which provided that when articles of incorporation were presented to the Banking Commissioner for approval such articles should be accompanied by statements, exhibits, data etc. properly verified and sufficiently comprehensive to enable the Commissioner to pass upon the proposed charter. The requirements of this rule are very similar to the present requirements of Sec. 2.01(4) Art. 852a. In holding that the absence of such supporting data did not prevent issuance of the charter the Court said.

“The Commissioner testified at the trial that it has been his custom not to require the filing of this data if there was to be a hearing. Whether there was to be a hearing depended upon whether or not there were protestants who wished to challenge the granting of the charter. (Rule 2.3 of the Rules and Regulations) Since there was to be a hearing petitioners did not file accompanying data.
Respondents contend that Rule 2.1 requiring the filing of this data is mandatory and jurisdictional and that an order granting a charter when no data has been filed is void.
We overrule this contention. The requirements of this rule are not jurisdictional.
* * * * * *
This rule is one which the Finance Commission has enacted for the convenience of the Banking Commissioner. The filing of this data merely provides the Banking Commissioner with another source of information.
******
The rule is manifestly for the purpose of aiding the Commissioner in performing his duty and not for the purpose of apprising a protestant of evidence to be introduced at a hearing. He may disregard it without infringing upon the rights of the respondents. 42 Am.Jur. 448, Public Administrative Law, § 115.”

We believe that the affidavits and data filed under the present statute should be considered in the same light and for the same purpose as the affidavits and data were considered and treated in Phillips v. Brazosport, supra. This holding will obviate serious constitutional questions which otherwise might be presented.

Appellee does not deny that the affidavit of Dr. Yeager was hearsay because of his nonappearance before the Commissioner and a lack of opportunity to cross-examine him. It says, however, that since cross-examination of Dr. Yeager was conducted in the trial court, that this suffices. We cannot agree. It was the cross-examination by or before the Commissioner which was important. Only the Commissioner has a discretion in this matter which might be affected by such cross-examination.

It is obvious from the brief filed by the Commissioner that he did not consider the affidavit of Dr. Yeager. If it was entitled to consideration, then our duty would be to reverse this cause to the Commissioner in order that he discharge his duty, provided, of course, that the affidavit of Dr. Yeager contains facts from which the Commissioner could have made findings favorable to appellee on the issues in question.

We are of the opinion that, conceding the relevancy of the matters discussed in the Yeager affidavit, this case should be reversed to the Commissioner even though he properly gave no weight to the affidavit of Dr. Yeager, this under Rules 434, 505, T.R.C.P. and the opinion in Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, which authorize us to remand rather than render judgment where by so doing the ends of justice will be subserved.

Our opinion is that the affidavit of Dr. Yeager recites facts which if lawfully presented would constitute substantial evidence sustaining a finding by the Commissioner favorable to appellee on the issue of public need.

Dr. Yeager is an independent economic expert and appears to have high qualifications in his field. We quote the following from appellee’s summary of Dr. Yeager’s affidavit:

“The proposed location for this branch office at 1105 Main Street is in the heart of Houston’s retail district. Nearby are principal retail stores such as Foleys, Sweeneys, Tiffany’s, Corrigan’s, Woolworth’s, Nieman-Marcus, Oshman’s, Bat-tlestein’s, Krup & Tuffley.
The present population of metropolitan Houston is approximately 1,400,000 people who are members of approximately 375,000 families or households. Many of these households depend upon one or several members who work in downtown Houston in office buildings, stores and banks. Yeager shows downtown Houston in an aerial photograph on Ex. 1, p. 3 of his report. The downtown area is shown on a street map as Exhibit 2 at page 4. It includes the area west of Crawford Street, east of the highway loop interchange, south of Buffalo Bayou and north of Gray Street. This is a 225-block area which comprises the central core of the city. The population of Houston and the downtown area is served by seven savings and loan offices including five principal offices and two branch offices. Gibraltar Savings Association does not have an office located within the area described on exhibits 1 and 2 of the report.
Construction of new office buildings in downtown Houston has tended to reflect general business conditions. From 1910 to 1919 total downtown additions to major structures was 15 buildings containing 1,550,000 square feet. From 1920 to 1929, 26 buildings were constructed containing 3,600,000 square feet! During the depression construction in downtown Houston slowed to 980,000 square feet from 1930 to 1939. From 1940 to 1949 five buildings were added containing 1,515,000 square feet, and from 1950 to 1959 seventeen major structures were built containing 3,525,000 square feet. From 1960 to the end of 1963, thirteen buildings were added containing 6,550,000 square feet. Thus, in four years, from 1960 through 1963, more office space was added to downtown Houston than was added in the 30 years prior, 1930 to 1959. Gibraltar’s proposed location is within the area of the most recent growth in new construction. Yeager states that most of the people working in these buildings are salaried people who get paid once or twice each month. Yeager concludes at page 9 of Proponent’s Exhibit 1A,
‘ * * * It is reasonable to expect that many of them already are customers of Gibraltar since Gibraltar has some 60,000 savers who deposit at its main office on Fannin Street at an inconvenient distance from the downtown office buildings. The proposed Gibraltar branch on Main Street in the heart of downtown Houston, would serve Houston’s greatly enlarged workday population as described above.’
Yeager made a study of a 49-block area with the proposed site of Gibraltar approximately in the middle of the area. His study showed that within that area there were 33,309 parking spaces. He estimated that Houston’s downtown area can accommodate the parking of 75,000 to 125,000 automobiles during a work day, exclusive of street parking. At page 11 of Proponent’s Exhibit IA he states,
‘Similarly, this suggests the great magnitude of the downtown market to be served by Houston savings and loan associations.’
Plaintiff’s Exhibits 23 and 24 show that in 1958 there were eight savings and loan offices serving the downtown area and that as of the date of this order there were only seven such offices serving that area. In 1958, Yeager states there were approximately 432,000 passenger cars in Houston and that as of the date of his report there were approximately 580,000. Yeager stated that in 1960 the daily number of trips made by all types of vehicles in Houston was about 1,800,000. Of these trips approximately twelve per cent or 215,000 began or ended in the central business district. Yeager concluded that the automobile was an important means of transportation in Houston and that the developing system of freeways in Houston served to link the outlying areas with downtown Houston. He stated that contrary to the pattern in many American cities Houston was increasing its workday population in the downtown core area.
In looking at the savings and loan market in Houston, Yeager found total financial savings in Houston of $4 billion $200 thousand; he found that forty per cent of Houston families have income after taxes in excess of $7,000 a year. This compared very favorably with the nation as a whole where only thirty-five per cent of the families have such income and with Texas where the number is twenty-eight per cent. In addition, he found that new savings were being added to the existing stock of savings in Houston at the rate of $150 to $200 million per year. Yeager noted that in December of 1962, such deposits (savings) totaled $402 million. In July of 1964, only 18 months later, total savings deposits in Harris County associations had grown to $626 million.
* * * * * *
Yeager reported that Gibraltar had conducted a survey to discover the degree to which its present customers might use the proposed downtown branch. The survey was conducted on a random sample basis. Fifty-two per cent of those who replied stated that at least one of the family was employed or officing in downtown Houston. Sixty-three per cent of those replying stated that they would use a branch office of Gibraltar if it were located in the heart of downtown Houston. Yeager concluded from this survey that a significant portion of Gibraltar’s customers at the main office on Fannin Street would be better served by a downtown location in the heart of Houston’s retail district.
******
In addition to the present customers of Gibraltar who would be served by the new branch, Yeager concluded that the facility would attract many new savers who prefer easy access to their holdings and who therefore look for a convenient location. He noted that as of the date of his report only one savings and loan office was located on Main Street in downtown - Houston whereas four commercial banks were located on Main Street within two blocks of the proposed savings and loan facility site. In his opinion the seven existing downtown savings associations are not adequate to serve the population growth which has occurred since 1958 and the anticipated growth in the next five to ten years. He stated that the proposed branch was necessary in the interest of the public to be served as measured by past and projected population growth as well as measured by the response of Gibraltar’s customers to the survey.
Yeager drew a comparison between Texas, Minnesota and California with regard to growth, population, number of savings offices, and total savings. California showed a 45% growth from 1950 to 1960; Minnesota a 17% growth; and Texas a 20% growth. In California the population per savings and loan office is 28,500 with savings per office of $28.6 million; in Minnesota the population per office is 30,400 with savings per office of $16.5 million; and in Texas the population per office is 39,200 with savings per office of $12.2 million. He concluded that this comparison shows that Texas is the least developed of the three states in terms of the savings and loan industry.”

Only the appellant Guaranty Federal seeks to sustain the finding of the Commissioner that the volume of the business in the community was not such as to indicate that the operation of the proposed branch would not be profitable.

The testimony upon which Guaranty Federal relies to support the finding of the Commissioner in this respect is testimony heard in the court below and which was not presented to the Commissioner. This appellant has no point to the effect that testimony at the trial should be restricted to the record made before the Commissioner.

We will not consider the testimony heard in Court which was not before the Commissioner. Without such testimony, the point of Guaranty Federal is stripped of substance. It is overruled.

With respect to the finding of the Commissioner that undue harm would result in excessive competition and result in undue harm to other existing associations, we are of the opinion that this finding is not reasonably supported by substantial evidence produced before the Commissioner.

The record before the Commissioner shows that appellee in fact operated a branch office in downtown Houston for a period of two years and eight months, from June 1959 to February 1962, and that during such period other existing associations prospered. We quote the following summary made by appellee of Mr. Lallinger’s testimony before the Commissioner in this regard:

“Mr. Lallinger, president of Gibraltar, made a study of the performance of the other downtown Houston associations which were in business during the two and one-half year period of time for which figures were available — this includes Benjamin Franklin, Houston First, Home, and San Jacinto savings and loan associations. The results of this study are shown on Plaintiff’s Exhibit 3-L, which was introduced before the Commissioner as Proponent’s Exhibit 6. The exhibit and the testimony before the Commissioner show that in July of 1958, Benjamin Franklin had approximately $10,500,000 on deposit, and that in December of 1961, six weeks prior to the closing of the Gibraltar branch office at 1201 Capitol Avenue, Benjamin Franklin had attained deposits of $21,955,097. Home Savings Association, during this period of time, increased from $4,826,000 to $10,503,916. Houston First, which had its office located one block from 1201 Capitol increased in deposits from $44,-011,000 to $61,877,434. San Jacinto Savings Association showed an increase in savings deposits during this period of time from $3,980,000 to $10,348,944. The chart does not show the growth of the branch offices of Farm and Home Savings or of Guaranty Federal, both located in downtown Houston, for the reason that figures attributable to those branches are not available.”

Appellant Houston offered testimony before the Commissioner that appellee’s savings, while it operated a branch office in downtown Houston, increased on a ratio of 2-1 over the savings of appellant Houston, and that after the branch office was closed this ratio dropped to 3-2.

Appellant Houston also showed that ap-pellee was a large institution, having 36% of the savings in Houston and adjoining cities at the end of 1962 and 34% of such savings at the end of 1963.

There was evidence before the Commissioner that Guaranty Federal Savings increased only $398,000 over the years 1958— 1964.

In addition, there was opinion evidence that existing associations would be harmed by establishment of the branch office sought by appellee.

In our judgment, the finding of the Commissioner that existing associations would be unduly harmed by granting ap-pellee’s application is not reasonably supported by substantial evidence.

Existing associations may not grow as fast and may not prosper as much with the competition which the establishment of a branch office by appellee in downtown Houston would furnish, but with the indicated growth of Houston and the present prosperity of existing associations we find no substantial evidence that they would be unduly harmed by such competition.

All appellants except the Commissioner have points to the effect that the opinion of this Court in Falkner v. Gibraltar Savings Association, 348 S.W.2d 472, writ ref., n. r. e. is res adjudicata as to this proceeding, and appellant Metropolitan has a point to the effect that Gibraltar is estopped to prosecute its application for a branch office by reason of the position taken by it in Gerst v. Cain, 388 S.W.2d 168, Tex.Sup.Ct.

In April of 1963, Metropolitan Savings Association filed an application for a downtown Houston charter with an office to be located at 1010 Louisiana Street, approximately four blocks from the proposed Gibraltar branch office. At the hearing before the Commissioner in June of 1963, Metropolitan was opposed by Gibraltar and an order was entered by the Commissioner on July 18, 1963, denying the Metropolitan charter application. Subsequently Metropolitan brought suit in the District Court of Travis County, Texas, seeking to obtain the charter, whereupon Gibraltar and certain other associations intervened in opposition to Metropolitan. Thereafter the District Court in December of 1963, the Austin Court of Civil Appeals in May of 1964, and the Texas Supreme Court in February of 1965, ruled favorably to Metropolitan and ordered that its charter be granted. In each of these courts, Gibraltar actively opposed Metropolitan, claiming in substance that the savings and loan facilities then operating in downtown Houston were adequate and that the granting of an additional facility would cause undue harm to other existing associations.

There is no basis for judicial estop-pel under facts presented. The “position” taken by appellee in Cain was not under oath. Neither was appellee successful in that case. It gained nothing from the position it took. Lacking in these two essentials, judicial estoppel is not shown. Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, Jones v. Jones, 301 S.W.2d 310, Tex.Civ.App., Texarkana, writ ref., n. r. e., Lobit v. Crouch, 323 S.W.2d 618, Tex.Civ.App., Austin, writ ref., n. r. e., 28 Am.Jur.2d, Estoppel and Waiver, Sec. 70.

Assuming, but without deciding, that the doctrine of res adjudicata is applicable to the proceedings in Falkner v. Gibraltar, supra, and here, we are of the opinion that in the interval between June 12, 1958, the date of the hearing in first Gibraltar and January 29, 1965, the date of the hearing held by the Commissioner in this case, there has been a material change in the facts as to preclude the application of the rule of res adjudicata. 73 C.J.S. Public Administrative Bodies and Procedure, § 147, p. 480, 34 Tex.Jur.2d 506, Judgments, Sec. 460.

The facts hereinabove stated reflect the validity of this conclusion.

We also note that changes in the law •since first Gibraltar prevent the legal issues in the two cases from being identical.

Art. 881a-2, V.T.C.S., considered in first Gibraltar, since repealed, provided that the Gommissioner should ascertain that the “public convenience and advantage” would be promoted by the new institution and whether “the population in the neighborhood” affords a “reasonable promise of .adequate support” for it. Under the present law, Art. 852a, the Commissioner must find that “there is a public need for the proposed association and the volume of business in the community in which the proposed association will conduct its business is such as to indicate profitable operation”.

It is not our purpose to elucidate upon the precise differences between the language of the old and the new law. This will, and we believe should, await litigation directly involving such questions.

We are of the opinion, however, that we must assume that the Legislature changed the law with a purpose. So assuming, it seems to us that the changes made have substance, and are not merely formal.

We have indicated that we are, in the interest of justice, reversing this case to the Commissioner. Our reversal is for all purposes for the reason that the unsettled state of the law may have caused the parties not to fully and legally develop their case before the Commissioner.

This cause is reversed and remanded to the Savings and Loan Commissioner of Texas for further proceedings consistent with this opinion.

Reversed and remanded.

O’QUINN, J., not sitting.

ON MOTION FOR REHEARING

HUGHES, Justice.

Appellee accuses us of having taken the quoted testimony of Mr. Lallinger to the effect that there was no need of additional savings and loan associations in downtown Houston “out of context.”

In appellee’s original brief the only mention it made of Mr. Lallinger’s testimony on the issue of public need is the following:

“The relative size of the downtown Houston associations as of January 1, 1964, is shown by the application filed by Gibraltar and by the testimony before the Commissioner of Michael Lallinger, the president of Gibraltar. In 1964, Houston First ranked 5th in asset size among 260 associations in the state of Texas; Guaranty Federal ranked 11th; Benjamin Franklin ranked 28th; San Jacinto ranked 44th; Home ranked 49th; and Surety after only two and one-half years operation ranked 123rd out of 260 state chartered associations in Texas, according to asset size. Before the Commissioner Lallinger said, T do not think there are enough branch offices of existing associations in the downtown area adequately to serve the area and take care of their customers and anybody else' that may want to transact business with them.’ ”

Appellants Houston et al replied to ap-pellee’s brief and in it stated:

“In appellee’s argument under its Counterpoint Four, and more especially in that portion of it addressed to the issue of ‘Public Need,’ there are about eighteen references to ‘Pro. Ex. 1A,’ which is Yeager’s affidavit as to his findings and conclusions; and there are no references to any other so-called evidence offered by appellee into the record of the hearing before the Commissioner except a reference to Pro. Ex. 7, a graph showing the growth in savings of certain downtown associations during the period from July 31, 1963, to July 30, 1964, a mention of certain testimony of appellee’s president Lal-linger concerning the relative size of various Houston associations and a reference to Lallinger’s wholly unsupported conclusion that there are not enough branch offices in downtown Houston.”

This analysis went unanswered by appel-lee.

In our opinion we quoted the testimony of Mr. Lallinger which was unfavorable to appellee as well as that which was favorable.

If appellee will suggest evidence in the record, not held inadmissible by us, which is relevant to the issue of public need and which will supply a proper context for the quoted testimony of Mr. Lallinger we will gladly incorporate it in our opinion.

The motion is overruled.

Motion overruled.

ON SECOND MOTION FOR REHEARING

In our first opinion on rehearing we stated that we would include in our opinion such evidence as appellee might suggest relevant to the issue of public need which would furnish proper context for the quoted testimony of Mr. Lallinger. Appellee has referred to testimony of Mr. Lallinger other than that noted in our opinion. Ap-pellee summarizes this testimony under six paragraphs which we quote:

“1. Regardless of the number of sav-' ings and loan offices placed in the vicinity of the downtown location of Gibraltar’s home office, Gibraltar will have a profitable operation.
2. Lallinger does differentiate between branches and new associations insofar as profitability of operation is concerned.
3. He does not think the same test should be applied to an application for a branch office as is applied to an application for a new office but recognizes that under the rules and regulations the test might be the same.
4. The present facilities are not adequate to serve the needs of savers in downtown Houston. (The Court will note that Lallinger unequivocally expressed this opinion both before and after the testimony quoted by the Court in its opinion.)
5. Lallinger’s differentiation between original associations and branch offices is clearly based upon the fact that in his opinion a branch office may be profitable in an area where a new association would be unprofitable. For that reason, as is shown by his testimony on PI. Ex. 3, pp. 94, 95, 96, he answered that there were enough associations in the downtown area but that there were not enough branch offices of existing associations in the downtown area to adequately serve the needs of the savings public.
6. The specific testimony quoted by this Court is in answer to a long statement read from a brief in another case and is Lallinger’s reaction to that statement.”

It will be observed that paragraphs 1, 2 and 5 relate primarily to profitable operation of the proposed branch office as to which issue we found in favor of appellee.

Paragraphs 3 and 6 are patently irrelevant.

Paragraph 4 refers to the following testimony of Mr. Lallinger given on cross examination :

“Q Now, you would agree, would you not, that if the facilities in this, what you call the downtown area there, are adequate to take care of the savers in the area that the public convenience and advantage would not be served by granting an additional branch. Isn’t that correct?
A Well, wait a minute. I don’t understand your question.
Q You would agree, would you not, that if the present facilities are adequate to serve the needs of savers in the downtown area, that it wouldn’t be serving public convenience and advantage to add another office or offices ?
A No, I woudn’t agree with that.
Q You would not?
A No. •
Q In what way would you differ ?
A I mean, as far as I am concerned, I think if Gibraltar comes down there — I mean you could say — you could argue that one association right in the center probably could go and serve all the savers who may be in the downtown area.
Q Add a lot of tellers and serve everybody?
A If you wanted to take that position.
Q That is exactly the position Gibraltar did take, through its attorney, in the Supreme Court, is it not?
A I do not know what the attorney said in the Supreme Court.
Q In your opinion, it is an unsound and inaccurate position? Is that correct ?
A Let’s say it does not agree with Gibraltar’s opinion that one association can adequately take care of the downtown area.
******
Q Mr. Lallinger, then, to finally clarify the point, in Gibraltar’s application for writ in the Metropolitan case on page 10 this statement is made:
‘It is undisputed that the facilities of the presently existing downtown associations are more than adequate to serve those who wish to save. Additional tellers could be employed by the existing ássociations if the volume of business justified it.’
******
Q Well, now, then, to get back to my question which I don’t believe you have answered. This is it:
‘It is undisputed that the facilities of the presently existing downtown associations are more than adequate to serve those who wish to save.’
Do you agree with that statement?
A No, I don’t agree with that statement.
Q And you don’t authorize it to be made by Gibraltar?
A I didn’t authorize any statement.”

Considering this evidence as well as all other evidence properly before us, we remain convinced that we have legally and equitably determined this appeal.

Appellee’s second motion for rehearing is overruled.

Motion overruled.

      . Art. 852a See. 2.08(3).

      . Guaranty Federal has a similar point but it is factually based primarily upon evidence introduced in the trial court which was not in the record made before the Commissioner, which evidence we have held inadmissible. Guaranty Federal has no point to the effect that the trial court should have confined itself to the record made before the Commissioner.
      Metropolitan has a similar point and for statement under this point it adopts the statement made by Houston First.
      The statement made by Houston First under this point is, in substance, the same as the statement made by the Commissioner. Houston First has points to the effect that the affidavit of Dr. Yeager was inadmissible and that the trial court should have confined itself to the record made before the Commissioner.

      . “We think the words ‘public need’ as used in Section 2.08(3) have the same meaning as the words ‘public necessity’ as used in the Texas Banking Code of 1943, 1. c. art. 342-305, Vernon’s Ann. Tex.Stats., that is, a substantial or obvious community need for the proposed association in the light of attendant circumstances, as distinguished from a mere convenience on the one hand and an absolute or indispensable need on the other.” Gerst v. Nixon, Tex.Sup.Ct., 411 S.W.2d 350, Nov. 30, 1966.

      . In Benson v. San Antonio Savings Association, 374 S.W.2d 423, Tex.Sup.Ct., the Court held:
      “The investigative report, even if admissible in evidence in the trial court by reason of Art. 3731a, § 1, Vernon’s Ann. Civ.Stat., is necessarily hearsay and whether favorable or unfavorable to San Antonio Association, could not serve to show that the Commissioner’s rejection of the application was not supported by substantial evidence.”

      . See Brazosport Savings and Loan Association v. American Savings and Loan Association, 161 Tex. 543, 342 S.W.2d 747, 2 Am.Jur.2d p. 595, 16A C.J.S. Constitutional Law §§ 622, 624, pp. 824 and 834.

      . Sec. 11.12(6), Art. 852a, authorizes this procedure.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    AMERICAN SURETY COMPANY, Appellant, v. Annie B. SEMMONS, Appellee.
    No. 260.
    Court of Civil Appeals of Texas. Tyler.
    March 23, 1967.
    Second Motion for Rehearing Denied April 13, 1967.

      Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Kenzy D. Hallmark, Lufkin, for appellant.
    R. W. Fairchild, Vernis Fulmer, Nacog-doches, for appellee.
   ON MOTION FOR REHEARING

DUNAGAN, Chief Justice.

The opinion heretofore rendered by this court is withdrawn and the following substituted therefor:

This is a workmen’s compensation case tried to a jury in the 2nd Judicial District Court of Cherokee County, Texas, whereby the jury found that plaintiff, Annie B. Sem-mons, sustained an injury on or about July 18, 1963, in the course and scope of her employment for H. B. Hibberts Construction Company. The jury found that plaintiff sustained total and permanent incapacity beginning on said date.

Judgment was entered in favor of plaintiff, based upon the jury’s verdict, for 401 weeks of workmen’s compensation benefits at the rate of $33.00 per week and accrued medical expenses in the sum and amount of $188.00. Defendant’s amended motion for new trial was overruled, and from the entry of the judgment and the overruling of defendant’s amended motion for a new trial, this appeal has been brought.

In answer to Special Issues Nos. 1, 2 and 3, the jury found that plaintiff sustained an accidental injury in the course and scope of her employment for Hibberts Construction Company. The plaintiff testified that on July 18, 1963, she was picking up some broken cement and other rubbish when she felt a sting in her back. She was seen by Dr. Evans in Alto and was subsequently referred to Dr. E. L. Mahon of Jacksonville, Texas. Dr. Mahon first saw the plaintiff on April 12, 1963. He saw her on several occasions on a regular patient relationship until January of 1964, after which time he did not see her except for a pre-trial examination requested by the defendant. Dr. Mahon’s diagnosis of the plaintiff’s condition was a lumbar muscle strain, and it was also determined that she had a positive blood test for syphilis which indicated that at some time she had had an infection of syphilis. As of the last time that Dr. Mahon saw the plaintiff as a treating physician, which was January, 1964, there was nothing wrong with her back and no other complaints were made inconsistent with her ability to work.

Plaintiff called as a witness Dr. V. W. Pryor by deposition, and he stated that he first saw the plaintiff on February 6, 1964. He saw the plaintiff on several other occasions and on May 21, 1964, the plaintiff had a seizure in Dr. Pryor’s office which was diagnosed as a central nervous system seizure resulting from third degree syphilis. From that time forward, the plaintiff has been under the care of Dr. Pryor for central nervous system syphilis.

Dr. Pryor and Dr. Mahon were the only physicians to testify during the trial. Dr. Mahon was called as a witness by the defendant. Dr. Mahon stated there was no connection between the lumbar sacral strain and the manifestation of third degree syphilis in the plaintiff. Plaintiff offered the testimony of Dr. Pryor in an attempt to connect the condition of third degree syphilis and the back strain of the plaintiff and it is from the admission of this testimony, before the jury, that gives rise to the points now under discussion.

If there is any evidence of probative value connecting the back strain of plaintiff to the onset of third degree syphilis and its continuing effects, it is found in the testimony of Dr. Pryor. The testimony of Dr. Pryor pertaining to the causal relationship between the back strain and the onset of third degree syphilis and its continuing effects is as follows:

“ ‘Q * * * Now, you spoke, Doctor, about the pain in the right sacro-ili-ac area and the generalized pain over the back and the leg and hip— also, you mentioned this terrific central nervous reaction that she was having and said big drops of sweat popped out while she was in your office having one of those reactions, how do you account for that in connection with her injury, Doctor, if you can? — If you can, explain it.
A Well, frankly, I think that was a side effect entirely.
Q Sir?
A I said, “I think that was a side effect entirely.”
Q You mean different from the injury or did it happen after the injury?’
* * *
‘A That could or it could not have had that effect in connection with the injury—
Q What is your opinion—
A —In itself, it was a — was a — I mean by that, that the injury might have aggravated it and then it could have happened possibly within the injury —it could have been that she was due in that stage with the disease and that was what was going to happen to her, see?
Q Well, that’s what I am getting at, as to whether you think such reaction was coming wholly from the disease of syphilis or from her injury as playing a part in connection with the disease or wholly from the injury?’
«* * *
“ ‘A Well, Mr. Fulmer, that would be practically impossible to absolutely state because they will do that when they haven’t had any injury, they will reach that stage anyhow— whether the injury did hurry it up or not why that is purely a matter of conjecture, you see?
Q Knowing her case like you do and as you have treated her all along on an average here of once a week and sometimes more often, what is your thought, Doctor, — you want to make the best judgment on it— give the best opinion on it of the most likely correct opinion, what would you say as to whether the injury contributed in some respect to that condition of that terrific central nervous reaction that you saw her with and that she said that she had been having from time to ' time?
A Well, that’s just—
Q If you take into consideration further the history that she gave you that she hadn’t had any such things before her injury?
A Well, there is — there is a possibility it helped hurry it up — helped precipitate it all right, but like I said before, that would be a matter of conjecture, pure and simple —it could do it — it is possible that it could do it.’
* * *
‘Q Is it probably that it did in this instance ?
A It is possible that she might have suffered it even though she hadn’t had an injury although, of course, from averaging the injury will tend to weaken the system where a condition like that will develop more quickly than they would otherwise, you see?
Q Would it be your opinion that the injury probably caused the reaction to come on sooner?’
* * *
‘A As I say, it’s possible and lots of times it does happen, although, it would be impossible for me to just absolutely state, “Well, now, she would not have had this at all if it hadn’t of been for this injury” it would be impossible for me to state that — it could be contributing and it could be that it would have happened anyhow.’
* * *
‘Q What I want to know, Doctor, what you would say as to the probability in this instance — we are not talking about some other case— we are talking about this instance where you treated here for many months, whether it is likely or reasonably probable, in your opinion, that the injury would — that the injury did have something to do with these reactions?
A Well,—
Q Just tell me “yes or no” and I will move on to another question.
A Well, that is just like asking you to quit beating your wife, “yes” or “no” is — -
Q Put it in your own words — -
A —not—
Q Put it in your own words.
A That’s not a good answer, see?
Q I am just simply asking—
A I — ’
«* * *
‘Q You can — you used the word “possible” and I want to know if it was probable?
A It is quite often that injuries do tend to predicate or in other words, they hurry up these things— this happens quite frequently, but there is no way in the world that I have or no way in the world that anyone could have to say whether they would have had these symptoms at this time — as you have stated here, it had been a number of months since she was injured and even if she had or had not been in-injured I couldn't tell you whether it hurried it up because they eventually do have these symptoms — a lot of them do, anyhow, you see, so it would be foolish to say that if she hadn’t of been injured she never would have had these things— and she would have had them eventually — maybe not now — and maybe later — I just don’t know; there is no way I can give you a definite answer.’
«* * *
‘Q Well, you notice that I am not asking you to say for sure — I am just asking you to say whether or not it is probable that the injury contributed to it?’
* * *
“‘A We know that they often do and it would be probable that it could have helped — hurry it up or aggravated it, — that’s quite true.’ ”

The record reflects that the appellant made numerous objections to the testimony quoted above, which were overruled.

Following Special Issue No. One, the court defined the term “injury” as follows:

“You are instructed that by the term ‘INJURY’ as used in this Charge, is meant damage or harm to the physical structure of the body, and such diseases or infection as naturally result therefrom, or the acceleration or aggravation of any disease or condition previously or subsequently existing, by reason of such damage or harm to the physical structure of the body.”

Appellant objected to this instruction because it allowed the jury to consider the effects of syphilis on the disability of plaintiff. In connection with such objection, the appellant requested this additional instruction :

“You are further instructed the term ‘INJURY’ as used in this Charge does not include syphilis and its effect, if any, on the body of plaintiff.”

Both appellant’s objections to the definition of “injury” and requested instruction were overruled by the court.

All of the testimony of Dr. Pryor, as above quoted, was before the jury at the time of their deliberations and no instruction of the court was ever given to them not to consider same.

The appellant has brought forward 17 points of error. Appellant by its first two points of error complains:

(1) of the court’s refusal to submit its requested instruction because there is no evidence of causal relationship between the alleged accident in question and activation of the dormant case of pre-existing syphilis of plaintiff;

(2) of the court’s action in submitting to the jury, over its objection, the definition of injury, allowing the jury to consider the condition of syphilis in arriving at the incapacity or disability the plaintiff sustained when there is no evidence that the alleged injury was the producing cause of onset and effects of third degree syphilis.

It is appellant’s contention that the testimony of Dr. Pryor constitutes no evidence of a causal connection between the back strain of plaintiff and the subsequent manifestation of third degree syphilis.

In the case of Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, (1949), a malpractice case, the court had before it the issue as to whether the testimony of two physicians that treatment of the arm of a four-year-old boy by defendant “possibly” caused his present complaints constituted any evidence. The trial court had directed a verdict for the defendant. The Supreme Court said:

“We do not find in the testimony we have recounted or elsewhere in the statement of facts any competent evidence that the negligence, if any, of respondent either in binding the boy’s arm or in its subsequent treatment was a proximate cause of the contracture suffered by the patient. All it shows is that what respondent did was not a probable but only a possible cause of the contracture; that it was only one of several things that could have caused the injuries complained of. Therefore, this cause is ruled by the language of Circuit Judge Taft, in Ewing et al. v. Goode, supra, c. c., 78 F. 442, ‘when the burden of proof is on the plaintiff to show that the injury was. negligently caused by defendant, it is not enough to show the injury, together with the expert opinion that it might have occurred from negligence and many-other causes. Such evidence has no tendency to show that negligence did cause the injury.”

In Western Telephone Corporation of Texas v. McCann, 128 Tex. 582, 99 S.W.2d 895, (1937), suit was brought for the death of Mrs. McCann resulting from an electrical charge. Plaintiffs theory was that the defendant had improperly constructed its wires so that they became surcharged with atmospheric electricity and during the course of a thunderstorm, the plaintiff was killed while standing near one of the wires. In reversing the case, the Supreme Court said:

“ * * * But the rule is elemental that the burden remains with plaintiff to the end of the case to establish by proof, not only the fact of the negligence averred, but also to show a direct connection between such negligence and the injury. Where the ultimate fact is not susceptible of direct proof, its existence must directly follow as a reasonable conclusion from its basic facts and circumstances, and it may be stated as an axiomatic rule that whenever court or jury are left by the evidence in a situation where, in order to find the ultimate fact alleged, they must piece out the facts adduced with conjecture or supposition, the plaintiff must be held to have failed in his proof. Where the evidence shows the injury might have been caused by the negligent act, but, in its aspect most favorable to plaintiff, is just as consistent with the inference that the injury might have been produced by another cause, to send the case to the jury would be to accord them the right to make an arbitrary choice between equally probable but unproved conclusions, and thus the verdict, if for the plaintiff, would be based not entirely on evidence, but in part on mere speculation and conjecture. (Emphasis added.) This would mean a reversal of the rule imposing the burden of proof on the plaintiff, since the defendant, in order to prevent the jury from making him the victim of conjecture, would be forced to assume the burden of showing that his negligence did not produce the injury.”

We are well aware of the often cited rule that in workmen’s compensation cases, the Workmen’s Compensation Act will be liberally construed. Nevertheless, in a workmen’s compensation case, the same as in a negligence case or a malpractice case, the burden of proof remains on the plaintiff to prove his case by a preponderance of the evidence.

We think this case comes squarely within the rule stated in Insurance Company of North America v. Myers, in an opinion delivered November 16, 1966, and reported in 411 S.W.2d 710, which was brought under the Workmen’s Compensation Act. The facts as set out in the opinion in the Myers case reflect that Doctors Bonn, Littlejohn and Colquitt testified that a cervical strain injury such as that suffered by Mrs. Myers did not, in reasonable medical probability, excite or aggravate the malignant brain tumor causing her death. It is further shown by the testimony of a fourth doctor, Dr. Antonio Dieste, a surgeon also engaged in general practice in Marshall who was presented by the plaintiffs, that he attended Mrs. Myers from January 1, 1964, approximately six weeks after removal of the tumor, until her death. He testified in response to a hypothetical question that it was “reasonably probable that the injury she sustained could have aggravated the tumor, and become an exciting or concurring cause, so that it was one of the causes, to whatever degree, of the death of Jimmie Myers.” It is also shown that Dr. Dieste gave other testimony concerning the aggravation of the tumor wherein he used the terms “could have,” “possible,” and “probabilities.” In reversing the Myers case, the court stated:

“Other than with the possible exception of the reasoning of the court in Walker respecting cancer aggravation, we have found no case in which lay testimony and the factual circumstances of an injury, together with expert testimony clearly limited to medical possibilities, have been held sufficient to support an inference that a pre-existing tumor was activated and the deadly effects of a malignancy accelerated by an injury. It is our view that such occurrence, or not, is a question of science determinable only from the testimony of expert medical professionals. * * * Casual (sic) connection in such a fact situation must rest in reasonable probabilities; otherwise, the inference that such actually did occur can be no more than speculation and conjecture. * * * Expert medical testimony predictive of what will happen in the future from a present injury is confined to reasonable medical probabilities, i. e., results reasonably to be anticipated. * * *
******
“Here, the only medical testimony supportive of the jury finding that the injury suffered by Mrs. Myers was a producing cause of her death from cancer was the testimony of Dr. Dieste. A review of all he said in the context of the questions propounded establishes that Dr. Dieste did no more than express the medical possibility that the injury caused an aggravation or excitement of the pre-existing brain tumor in one of several possible ways and hence could have been a concurring or contributing cause of death. He himself summarized his testimony by saying that an aggravation ‘could have resulted to this tumor.’ Dr. Dieste did not state as his medical opinion that the injury did in fact, or in reasonable medical probability, aggravate or excite the pre-existing tumor; he stated only the medical possibility that such could have occurred. * * * In this state of the record causal connection is left to surmise or conjecture with the fact finder having to make an arbitrary choice between unproved conclusions. * * * ”

See also Jacoby v. Texas Employers’ Insurance Association, 318 S.W.2d 921, (Tex.Civ.App., San Antonio, 1958, writ ref., n. r. e.); Woods v. Safeway System, Inc., 223 A.2d 347, (Rhode Island Sup.Ct., 1966). An excellent article examining the Texas law on this point is found in Volume 29, Texas Bar Journal, page 805, entitled “Expert Testimony — Cause of Present Physical Condition.”

In the case at bar it can likewise be said that Dr. Pryor never stated as his medical opinion that the injury did in fact or in reasonable medical probability aggravate or excite the pre-existing syphilis, nor do we find such medical testimony elsewhere in the record. He stated only the medical possibility that such could have occurred. As we view the testimony of Dr. Pryor in the instant case as to the causal connection between Annie Semmons’ alleged injury and the aggravation or acceleration of the third degree syphilis, it is no stronger than that of Dr. Dieste in the Myers case.

Appellee argues that because there is medical testimony in the record that she was found also to be suffering from phlebitis, caused by the injury, which was sufficient to support the jury’s answers to Special Issues Nos. 4 and 6, it is improbable that the verdict of the jury was based upon a finding that the initial damage or harm to her body aggravated or accelerated her syphilis.

Even though there was other evidence which could have caused the same finding, this would not eliminate the fatality of the error under the record in this case. McCarty v. Gappelberg, 273 S.W.2d 943, 949, (Tex.Civ.App., Fort Worth, 1954, writ ref., n. r. e.).

We cannot speculate as to what admitted testimony the jury did or did not consider in arriving at their answers to said issues. To say under this record that the jury, in arriving at its verdict, probably did not give any consideration to the testimony of Dr. Pryor to the effect that the third degree syphilis appellee was suffering from could have or possibly was aggravated or accelerated by the alleged injury would be pure speculation.

In light of the rule announced in the Myers case, it is our view that causal connection in such a fact situation as here presented must rest in reasonable probabilities ; otherwise, the inference that such actually did occur can be no more than speculation or conjecture.

The law is now settled that expert medical testimony predictive of what will happen in the future from a present injury is confined to reasonable medical probabilities, i. e., results reasonably to be anticipated. Insurance Company of North America v. Myers, supra.

In our opinion, the testimony of Dr. Pryor here under attack does not meet the test applied in the Myers case. Therefore, we hold that the testimony of Dr. Pryor, relating to the causal connection between the alleged injury and the third degree syphilis, constitutes no evidence of probative value.

It appears that Dr. Pryor’s opinion as to total and permanent disability was based, at least in part, upon syphilis and its effect on appellee’s body resulting from the alleged injury. This evidence was admitted over appellant’s objection and also over appellant’s objection the jury was allowed to consider the same in arriving at their answers to Special Issue No. 4 that plaintiff was totally disabled, and to Special Issue No. 6 that the plaintiff’s total disability was permanent.

This brings us to a consideration of the question of whether the court’s action in overruling appellant’s objection to the court’s definition of “injury” and refusing its requested instruction probably influenced a verdict unfavorable to appellant. This question is to be determined as a matter of our judgment in the light of the record as a whole. In order to discharge its burden of establishing whether such action was prejudicial, appellant was not required to prove or demonstrate that “but for” the erroneous action of the trial court in admitting the testimony, a different judgment would necessarily have resulted. It was only necessary that it establish that the evidence was reasonably calculated to and probably did cause the rendition of an improper judgment. Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210, 216, (1958), and cases therein cited; Rule 434, Texas Rules of Civil Procedure.

In light of the record as a whole, we are of the opinion that such error amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case. Rule 434, Texas Rules of Civil Procedure. Therefore, appellant’s points of error 1 and 2 must be sustained and this case reversed and remanded. Moulton v. Alamo Ambulance Service, Inc., Tex., 414 S.W.2d 444.

All the points of error assigned by appellant are points which, if sustained, would require a remand of this cause. Consequently, our decision sustaining appellant’s points of error Nos. 1 and 2 controls the ultimate disposition of this cause and renders unnecessary any consideration of appellant’s remaining points of error.

The appellee’s motion for rehearing is overruled, and the judgment of the trial court is reversed and remanded for further proceedings.

      . “Do you find from a preponderance of the evidence that Annie B. Semmons sustained an injury on or about the 18th day of July, 1963?
      “Answer: ‘WE DO’ or ‘WE DO NOT.’ “ANSWER:-”


author: MASSEY, Chief Justice.

text:
    CITY OF PERRYTON, Texas, Appellant, v. HIGH PLAINS NATURAL GAS COMPANY, Appellee.
    No. 16811.
    Court of Civil Appeals of Texas. Fort Worth.
    March 17, 1967.
    Rehearing Denied April 14, 1967.
    Lemon, Close & Atkinson, and R. D. Lemon, City Atty., Perryton, for appellant.
    Strasburger, Price, Kelton, Miller & Martin, and Leo J. Hoffman, Dallas, for appellee.
   OPINION

MASSEY, Chief Justice.

Venue case under Vernon’s Ann.Tex. Civ.St. Art. 1995, “Venue”, Subdivision 5, “Contract in writing”.

Place of performance (payment) by defendant was recited in the contract as “at Vendor’s office in the City of Fort Worth,. Tarrant County, Texas”.

After the continuing contract had been, performed for a period, plaintiff, through oral arrangement with the defendant, provided for defendant’s future performance-(payment) to be made in Dallas County. Thereafter the office in Tarrant County was closed. Performance by defendant in. such county thus became impractical, if not impossible. Several years later a dispute-arose concerning the amount owed by defendant to plaintiff. Under the theory that defendant’s obligation to make payments, under the contract was in arrears, plaintiff brought suit in Tarrant County for indebtedness allegedly owing under the contract.

Venue issue was joined. Hearing was. before the court without intervention of a jury. Order of the court overruled defendant’s plea of privilege. Defendant appealed.

Defendant’s theory is that because of the-oral agreement changing the place in the contract where it was obliged to perform,, plaintiff had lost the right to require defendant’s performance in Tarrant County. Defendant claims it was entitled to have the case transferred to the county of its residence.

Article 1995, Subd. 5 provides: “If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county * * * by such writing, suit upon or by reason of such obligation may be brought against him * * * in such county * *

The evidence introduced was without probative force to prove that plaintiff had waived its contractual right to demand that defendant’s performance occur in Tar-rant County, or, in the event of defendant’s •default, to waive its right to sue to enforce defendant’s performance in Tarrant County. In view thereof, plaintiff was entitled to have venue retained in such county. Southwestern Investment Co. v. Allen, 160 Tex. 258, 328 S.W.2d 866 (1959).

Defendant contends that the case does not constitute authority for our conclusion since payments to Southwestern Investment Co. were arranged to be made at a •different branch office from that provided in the written contract as a matter of convenience to Allen and at a time when the •office named as place of payment by the contract remained open and active. Our attention is directed to the statement made in the opinion (328 S.W.2d p. 868), viz.: “We need not pass upon the question of whether a subsequent oral agreement modifying the place of performance of a written contract would affect the proper venue of a suit brought upon the written instrument.” We consider such contention without merit, the material factor being whether a right of the plaintiff under the contract was waived.

Furthermore, we are of the opinion that under the unambiguous provisions of Subdivision 5 of the Venue Statute, plaintiff’s right to bring suit in Tarrant County was preserved. Since amendment thereof in 1935, the language of the subdivision is specific concerning the venue right in relation to written contracts. For venue purposes reference to matters outside the written provisions of contract(s) of the parties could not operate to alter or inhibit the venue rights conferred by the subdivision. Grayson Enterp., Inc. v. Texas Key Broadcasters, Inc., 390 S.W.2d 346, 350 (Eastland, Civ.App., 1965, writ dism.); Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (1948); Cunningham v. Allison, 202 S.W.2d 297 (Fort Worth, Civ.App., 1947, no writ); Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (1942).

Judgment is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Minnie LaRUE, Appellant, v. BRIGGSWEAVER, INC., Appellee.
    No. 11482.
    Court of Civil Appeals of Texas. Austin.
    March 22, 1967.
    Rehearing Denied April 12, 1967.

      Andress, Woodgate, Richards & Condos, John W. Lodewick, Dallas, for appellant.
    Kenneth Seidenberg, Laurel A. Bates, Dallas, for appellee.
   PHILLIPS, Chief Justice.

This is an appeal from a garnishment judgment in favor of appellee against the South Oak Cliff State Bank, Garnishee, for $142.29. The account garnished was in the name of appellant.' The question in dispute is whether the account consisted solely of the personal earnings of appellant or contained community funds acquired by her husband.

We reverse and render the judgment of the trial court.

During the year 1959, Guy LaRue, husband of Minnie LaRue, appellant herein, was the owner and operator of Falcon Construction Company. Falcon Construction Company was the community property of appellant and Guy LaRue, and was operated for the benefit of their community interests. During the course of affairs of the business, Falcon Construction Company became indebted to Briggs-Weaver Machinery Company, and other suppliers.

There are six judgments of record, including that of Briggs-Weaver Machinery Company, against Guy LaRue dated prior to January 5, 1962.

On January 11, 1960, in County Court at Law Number One of Dallas County, Texas, in Cause No. 13515-A styled Briggs-Weaver Machinery Company v. Guy LaRue and d/b/a Falcon Construction Company, Briggs-Weaver Machinery Company obtained judgment for its debt against Guy LaRue in the amount of $221.28 with interest thereon at the rate of 6% from January 11, 1960, and costs of suit, which judgment is final, valid and subsisting and remains wholly unsatisfied.

Until January 5, 1962, Guy and Minnie LaRue, maintained a joint checking account in the South Oak Cliff State Bank, Dallas, Texas.

On January 5, 1962 this bank account was closed, having a closing balance of $246.70. On January 5, 1962, a checking account was opened in the names of Minnie LaRue and her daughter, Junella Davis. The opening balance of this account was $246.70. The card closing the account read, “Transferred January 5, 1962 to Minnie LaRue.”

On February 4, 1966, Briggs-Weaver, Inc. served South Oak Cliff State Bank with a Writ of Garnishment on this account and Minnie LaRue, appellant, filed her Motion to Quash.

A hearing was had on the Motion to Quash on April 1, 1966. Minnie LaRue testified that the funds on deposit were derived from her personal earnings as an employee of Rose Dress Shops. She further testified that her husband had never made any deposits to this fund and there is no evidence to the contrary. Ledger sheets were introduced into evidence showing that appellant had consistently made deposits of her salary checks plus bonuses from the time the account was opened in January of 1962 until this proceeding was brought on February 4, 1966. Then there were the consistent withdrawals as she paid certain bills in the ordinary course of living.

There are no assets within the State of Texas belonging to Guy LaRue on which to levy in order to satisfy the judgment in favor of Briggs-Weaver Machinery Company, nor does Guy LaRue have a bank account in his name within the State of Texas.

From the abovementioned judgment for appellee, Minnie LaRue duly perfected her appeal to this Court.

Appellant is before this Court on two points of error, the first being that no evidence was offered to overcome the statutory presumption that the account in the name of Minnie LaRue was her separate property and therefore not subject to garnishment in order to satisfy a debt against the husband; the second being that the undisputed evidence showed that the funds in appellant’s bank account constituted her personal earnings.

We sustain the last point making decision of the first point unnecessary.

In her Motion to Quash, appellant has plead and proved that the money in the account consisted of her personal earnings and that as such is protected from any debts contracted by the husband under the provisions of Vernon’s Ann.Tex.Rev.Civ. Stat. art. 4616. Article 4616 provides that neither the separate property of the wife, her personal earnings, nor the revenue from her separate property shall be subject to the payment of debts contracted by the husband nor claims arising out of the torts of the husband.

Whatever the character of the original $246.70 transferred from the joint account in 1962, appellant denied that this consisted of any funds belonging to her husband, appellant has presented evidence of deposits and withdrawals aggregating several hundreds of dollars and there is no evidence whatsoever to indicate that the money garnisheed was not proceeds from her personal salary.

We reverse the judgment of the trial court and render judgment quashing the garnishment and that appellee take nothing by his suit.

Reversed and rendered.


author: WALTER, Justice.

text:
    Frank B. BOATRIGHT et al., Appellants, v. CITY OF MINERAL WELLS et al., Appellees.
    No. 4157.
    Court of Civil Appeals of Texas. Eastland.
    March 3, 1967.
    Rehearing Denied March 24, 1967.

      Tom Huckaby, City Atty., Big Spring, for appellants.
    Herman Fitts, John R. Creighton, Mineral Wells, for appellees.
   WALTER, Justice.

Frank B. Boatright, individually and as representative of a class of taxpayers and citizens of Mineral Wells, filed suit against the City of Mineral Wells and George D. Barber, Mayor of the City of Mineral Wells, Harry T. Shuffler, Commissioner of the City of Mineral Wells, Walter L. Montgomery, Commissioner of the City of Mineral Wells, Sarah F. Scott, City Secretary to the City of Mineral Wells, and Ambrous Lee, Chief of Police of the City of Mineral Wells, called Secondary Defendants, seeking injunctive relief. The appellants have correctly given a statement of the nature of the case as follows:

“This action is between a citizen and taxpayer and the City of Mineral Wells, Texas, and the elected officials of said city to test the validity of a new city charter adopted by the governing body of said city of July 26, 1966, which new charter replaced the original charter of the City of Mineral Wells, Texas, adopted by the City in August, 1913. The attack on the new city charter is made in the form of a petition asking for injunctive relief against the city officials from turning over the city offices to officials elected under the new charter and to declare such new charter null and void. A hearing was held on the question of temporary injunction only, and the Court, after hearing the undisputed facts, held the new charter valid, denied the relief sought at the hearing,” and entered a judgment dismissing plaintiffs’ petition. From this judgment, appellants have perfected this appeal.

The judgment was rendered and entered on October 18, 1966. It recites “ — came on to be heard Plaintiffs’ application for Temporary Injunction”. It also recites, “It is therefore ORDERED, ADJUDGED AND DECREED by the Court that Plaintiff’s Application for Temporary Injunction be, and the same is hereby, denied, and Plaintiff’s Petition be, and the same is hereby dismissed.”

This is not an appeal from an interlocutory order under Rule 385 because the judgment orders that the plaintiffs’ case be dismissed. This is a final judgment. Appellees’ motion to dismiss the appeal for want of jurisdiction is overruled. We hold that the transcript and statement of facts were timely filed and that we have jurisdiction of the appeal.

Appellants’ original petition was filed on September 13, 1966, and the relief it sought is stated by appellants’ counsel at the hearing as follows:

“We are asking the Court to grant a temporary injunction against the Secondary Defendants named in our original petition, to enjoin them from vacating their offices and turning over their duties as elected officials to people elected under the new charter for the reason that the new charter is void.”

L. J. Varnell, Jr. the duly elected, qualified and acting mayor of the City of Mineral Wells, Carl Kessler, Harry Cohen, Marcus Marsden, Benny W. Saylors, Ellis H. White, and Thomas Simonton, Jr., the duly elected, qualified and acting City Councilmen of said City, filed a plea of intervention on September 23, 1966.

The appellants did not make the officers elected under the new charter parties to their suit; neither did they seek any relief against them. The record shows without dispute that such new officials have been elected, have taken their oaths of office and are now acting in such official capacities for the city.

Appellees contend the subject matter of this suit has become moot. We agree. “Where, pending an appeal from an order refusing to grant or dissolving an injunction, the act sought to be enjoined has been fully performed, appellate jurisdiction will ordinarily not be exercised.” 3 Tex.Jur.2d, Sec. 53, p. 317.

The appeal is dismissed.


author: CHADICK, Chief Justice.

text:
    SECURITY LUMBER COMPANY, Inc., et al., Appellant, v. WEIGHARD CONSTRUCTION COMPANY et al., Appellees.
    No. 7784.
    Court of Civil Appeals of Texas. Texarkana.
    March 7, 1967.
    Rehearing Denied April 4, 1967.

      William Key Wilde, Ronald C. Kline, Bracewell & Patterson, Edgar E. Townes, Jr., Townes & Townes, Houston, for appellant.
    Sam Dawkins, Jr., Eastham & Meyer, Sam S. Minter, Houston, for appellees.
   CHADICK, Chief Justice.

Security Lumber Company, Inc., filed an action for judgment on a sworn account for building material furnished Weighard Construction Company, and used by it in the construction of improvements on three separate parcels of real property, and to foreclose perfected materialman’s liens securing payment of the value of the material. Others were joined as defendants, four as guarantors of the material account, and the remaining parties because they claimed an interest in or lien upon the parcels of real property. Four of the defendants in the trial court did not appeal, all other parties have perfected appeals and are appellants in some phase of this appellate action. The pleadings of the defendants, the facts proved and the judgment rendered will be mentioned when necessary to clarify the issues discussed.

The Appeal of Security Lumber Company, Inc.

The first material furnished by Security to Weighard Construction Company was delivered to job sites at each of the three separate lots on March 7, 28, and April 3, 1961. University Savings & Loan Association’s deed of trust liens on the several lots were filed April 6, 1961. Thereafter more material was furnished by the lumber company to the construction company and delivered to the job sites April 29, May 15, and May 25, 1961. The judgment rendered by the trial court valued the material furnished by Security to Weighard Construetion Company prior to the recordation of the University Savings & Loan Association’s deed of trust lien at $2,494.98, and awarded Security judgment therefor and foreclosed Security’s materialman’s liens securing payment thereof upon the three parcels of real property.

Security Lumber Company Inc.’s written notice of appeal and the recitation in its appeal bond specify that it is appealing “from the judgment of said court rendered in said cause”; however, its brief limits the scope of appeal to the question of priority between its materialman’s liens and the building & loan association’s deed of trust liens. As appellant, Security Lumber Company Inc.’s position and argument is that “the mechanic’s and materialman’s liens have their inception from and relate back to the date the lien claimant originally furnishes the first materials to the owners and are superior to any mortgage created thereafter.” University Savings & Loan Association counters with the argument “that each * * * delivery of material is a separate and distinct contract, * * *, one in a series of contracts, and that the lien for materials furnished is only superior to a recorded deed of trust lien for those materials furnished prior to the recording of the deed of trust.”

Weighard Construction Company arranged with Security to furnish it building material in an open account for three of its building projects before the work thereon began. The credit arrangement contemplated delivery of the material at the job sites when ordered by Weighard’s representative, it may be inferred from subsequent action of the parties, but did not include an agreement specifying the time payment for the material would be made. Unquestionably the over-all contract for building material between the lumber company and the construction company originated at or before the first delivery of material. The arrangement entered into appears to have been intended by the parties to be but one contract for material, with provision that delivery be made as ordered. This interpretation of the agreement as a unified contract is fortified by evidence that the lumber company required the construction company to give security for the payment of the entire material count in the form of guaranty letters executed by third parties, the quotation at the time of the arrangement of prices that would be charged for material when ordered, as well as the fact that delivery was actually made on several separate dates. The material contract and first delivery thereunder predates recordation of the deed of trust liens.

Although the facts in Oriental Hotel Company v. Griffiths, 88 Tex. 574, 33 S.W. 652, 30 A.L.R. 765 (1895) disclose it as a case factually unlike the present, yet it significantly determines that liens for labor and material have their inception in the contract therefor. Such reasoning has application here, Security materialman’s liens have their inception in the material contract. The materialman’s lien is given priority by legislative preference over any lien or encumbrance subsequent in date to the inception of the lien. Vernon’s Ann. Tex.Rev.Civ.Stat. art. 5459 (1958). Under the circumstances shown here, if each delivery is construed to be a separate contract, the supplier of building material would hazard loss of his lien priority and his property unless he examined the lien records before each delivery and was governed thereby, regardless of his arrangement with the contractor. It is not probable that the legislature meant to put him at such disadvantage. The trial court judgment subordinating a part of the material-man’s lien to the lien of the deed of trust must be revised.

The Appeal of University Savings & Loan Association, Lewis J. Lewetten and George H. Clark

Weighard Construction Company cross-assigned a point of error presenting for review the action of the trial court in declining to hold the two year statute of limitation applied in determining priority between the materialman’s and deed of trust liens, together with cross-points setting out that such court erred in admitting in evidence delivery receipts Security Lumber Company allegedly received from Weigh-ard Construction Company for the purpose of proving delivery of material and a no evidence point respecting material delivery and use. Security Lumber Company, Inc., moved to strike Weighard’s cross-points because University failed to file an appeal bond. University replied that it was not required to file an appeal bond, as Security appealed from the judgment in its entirety and thereby brought the entire controversy to this court for appellate review. It was noted earlier that Security Lumber Company did not limit its appeal to a designated portion of the judgment by a recitation to that effect in its written notice of appeal or in the recitals of its appeal bond, on the contrary such instruments specified an appeal from the entire judgment. Under the circumstances, the motion to strike is not well taken. Connell Construction Company v. Phil Dor Plaza Corporation, 158 Tex. 262, 310 S.W.2d 311 (1958).

The trial court properly declined to apply the two year statute of limitation in determining priority of the liens. Neither the two year statute, Tex.Rev.Civ.Stat.Ann. art. 5526 (1958), nor any other statute limiting the time in which actions may be brought can have application under the pleadings and proof of this case. The ma-terialman’s liens in this case, as are liens in all cases, are incidents of and inseparable from the debt the liens secure. Continental State Bank of Big Sandy v. Pepper, 130 Tex. 71, 106 S.W.2d 654 (Comm.App.Op. Adpt.1937) West v. First Baptist Church of Taft, 123 Tex. 388, 71 S.W.2d 1090 (Comm.App.Op.Adpt.1934); Pope v. Beauchamp, 110 Tex. 271, 219 S.W. 447 (1920). Since these materialman’s liens are inseparable from the debt, only circumstances that bar collection of the debt can prevent enforcement of the lien. No defense of estoppel or waiver has been suggested by pleading or proof, and it is conceded that the action on the debt was brought within two years from its maturity. The remainder of these appellants’ point of error overlap others that will be discussed next.

The Appeal of Jack C. Westmoreland

The basis of this appeal is the absence of evidence that Jack C. Westmoreland agreed to pay the building material account in controversy, and absence of evidence to support the judgment that Security Lumber Company sold and " delivered the building material listed in the account to Weighard Construction Company at prices agreed upon by such parties, or that the material was used in the Weighard Lumber Company projects.

A letter dated January 15, 1961, signed by Jack C. Westmoreland requested Security Lumber Company to sell Weig-hard Construction Company building material and supplies in consideration of West-moreland’s guaranty that he would pay any account therefor that Weighard Construction Company failed to pay when due. The supplies and material earlier noted were thereafter furnished. The letter was prepared by an employee of Security Lumber Company and by him handed to Thomas Weighard to secure Dr. Westmoreland’s signature. Thomas Weighard and Dr. Westmoreland officed in the same building. Some ten minutes after receiving the letter Mr. Weighard returned it to the Security employee with a signature on it purporting to be that of Dr. Westmoreland. Neither by pleading under oath nor by testimony did Dr. Westmoreland deny execution of the guaranty letter. Referring to the Westmoreland letter, the Security employee was permitted to testify without objection: “ * * * they have * * * done so by signing these forms here, these guarantees”. Considered in connection with other testimony by the witness the quoted statement could very well be hearsay as to Dr. Westmoreland’s execution of the letter, yet it does not affirmatively appear that it is hearsay. The statement was admissible. Strickland Transportation Co. v. Ingram, 403 S.W.2d 192 (Tex.Civ.App.1966, error dism’d); Thorne 18 Baylor L.Rev. 639 (1966); 24 Tex.Jur.2d Evidence § 561 (1961). The record presented contains evidence to support the trial judge’s presumed finding that Dr. Westmoreland signed the letter of guaranty.

Under the no evidence points it is asserted that there is no evidence to prove: 1) Security sold Weighard Construction Company building material; 2) delivery of building material; 3) receipt of material by representatives of Weighard Construction Company; 4) the signatures shown on delivery receipts are genuine; 5) the prices charged were agreed upon by Weighard and Security or were customary and reasonable. Security undertook in the trial to prove by its business records that it furnished and delivered material to the three projects and was receipted therefor by Weighard’s representative. University Savings & Loan Association, Lewellen and Clark join Westmoreland in asserting that such evidence is not competent to prove these facts.

In addition to evidence showing office procedures and identifying the records in evidence as having been made in the regular course of business, a Security employee testified that he saw much of the material used on the jobs, and that it was invoiced to Weighard Construction Company at prices quoted to the construction company at the time arrangement was made for supplying material. It is impractical to summarize all of the testimony, but it has been carefully considered and appears to support the judgment rendered if the facts in question may be proven by the business records of Security Lumber Company. The next point of error to be considered deals with that question. The point is that the court erred in admitting delivery slips into evidence. No objection was made to a particular slip,, the objection ran to the entire exhibit containing numerous slips. The delivery slips were addressed to Weig-hard Construction Company and signed by someone purporting to have received it as Weighard Construction Company’s representative. The material is described in the slips. The slips are admissible under the provisions of Tex.Rev.Civ.Stat.Ann. art. 3737e (1958), as they were shown to be records made in the regular course of business.

Disposition of Appeals and Revision of Trial Court Judgment

Security Lumber Company Inc.’s single point of error raising the question of priority between the materialman’s lien and the deed of trust lien is sustained. All other points of error, counter-points, cross-points, and motions of all parties have been considered and the same are overruled. The judgment will be revised to decree Security’s materialman’s liens prior and superior to the University Savings & Loan Association’s deed of trust liens and judgment rendered that appellant, Security Lumber Company, Inc., have foreclosure of its material-man’s lien on Lot 22, Block 7, Braeburn Valley, Section 4, an addition in Harris County, Texas, and judgment against ap-pellees, Lewis J. Lewellen and' University Savings & Loan Association, jointly and severally for the sum of Four Thousand Nine Hundred Fifteen and 7½00 ($4,915.71) Dollars; that appellant, Security Lumber Company, Inc., have foreclosure of its mechanic’s and materialman’s lien against Lot 8, Block 4, Braeburn Valley, Section 4, an addition in Harris County, Texas, and judgment against appellee, University Savings & Loan Association for the sum of Two Thousand Twenty-one and 1BAoo ($2,-021.15) Dollars;, and that appellant, Security Lumber Company, Inc., have foreclosure of its materialman’s lien against Lot 25, Block 7, Braeburn Valley, Section 4, an addition in Harris County, Texas, and judgment against appellees, George H. Clark and University Savings & Loan Association, jointly and severally, for the sum of One Thousand Five Hundred Forty-one and 3¾00 ($1,541.32) Dollars; in other respects the judgment is affirmed.


author: GREEN, Chief Justice.

text:
    J. D. FRICK, Appellant, v. Beulah Ima DUGE, Appellee.
    No. 276.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 23, 1967.
    William R. Anderson, Jr., of Sorrell, Anderson & Porter, Corpus Christi, for appellant.
    Robert D. Nogueira, Beeville, for ap-pellee.
   OPINION

GREEN, Chief Justice.

This is a venue case involving Subd. 9a, Art. 1995, Vernon’s Ann.Tex.St. Defendant’s plea of privilege was overruled, and he appeals. We affirm the judgment.

Plaintiff sued in the district court of Bee County to recover damages as the result of her husband Alex E. Duge being killed when the dump truck in which he was riding, with one Paulo Alcorta driving, ran into defendant’s trailer-truck on Highway 181 in Bee County, Texas. Defendant Frick had stopped his truck on his right hand side of the road with the left wheels about 4 or 4½ feet on the improved paved shoulder of the two lane highway. The trailer was fully loaded with grain, and the truck, trailer and load weighed approximately 72,500 pounds. The truck and trailer were about 8 feet wide and 46 feet in over all length. Immediately ahead of this truck was another truck and trailer of the same general character and similarly loaded belonging to defendant and operated by his duly authorized employee Farris, which was also stopped partially on the improved shoulder of the road. Farris had been having trouble with the air-conditioning belt of his truck, and had stopped to install a new belt, and to give his employer time to catch up with him. At the time of the accident he had the hood up and was installing the belt; and defendant and others of his group were in front or at the right side of the lead truck, and did not see the dump truck approaching from the rear of their vehicles.

Alcorta, the driver of the dump truck in which deceased was riding, testified that he was driving on the paved shoulder of the road, as he frequently did in order to give the highway to faster traffic, when he first saw defendant’s truck. He could not see the front truck, and thought defendant’s vehicle was moving. When he got close enough to realize it was stopped, another car containing a number of people and proceeding in the same direction was in the lane to his left causing him not to turn to his left to avoid hitting the truck. He testified he stepped on the brakes, but it was too late. The right front of the dump truck struck the left corner of the loaded trailer, and deceased died as a result.

The accident happened about 8:15 o’clock August 12, 1964, on a bright dry sunshiny morning. The evidence conflicts as to whether Farris had put out any flares or reflectors or other warning devices prior to the accident, and it is definite that defendant had not placed any to the rear of his truck after he stopped. Highway 181 in Bee County is a heavily travelled paved roadway with, much through traffic from North and Central Texas to the gulf coast, Corpus Christi, and the Valley passing on it. The main travelled road is 24 feet 4 inches wide, or 12 feet 2 inches to each lane, with a paved shoulder on each side 8 feet seven inches wide, with an area 29 feet 9 inches wide from the edge of the shoulder to the fence of sufficient firmness and hardness to support the loaded trucks. Defendant at the time he stopped his vehicle was aware that it was a prominent muchly used roadway, and that the unpaved portion of the right of way would support his truck.

The acts and omissions of defendant alleged to constitute negligence and a proximate cause of the accident and death of plaintiff’s husband, as set forth in plaintiff’s first amended petition which was by reference made a part of the controverting affidavit were:

(1) That Defendant had parked his truck on a paved portion of a public highway in Bee County, Texas, in violation of the penal laws of the state;

2. That such Defendant failed to place at or about said truck highway reflectors, flares, fuses, flags or other device;

3. That such Defendant failed to place flares, fuses or flags southmost of said parked tractor trailers in violation of Section 138 of Article 6701d of Vernon’s Annotated Civil Statutes;

4. That Defendant failed to drive and park off of the paved portion of the highway onto the gravel shoulder of the highway.

The venue facts which plaintiff had the burden of proving by a preponderance of the evidence under Subd. 9a of Art. 1995, V.A.T.S. were (1) that an act or omission of negligence occurred in Bee County; (2) that such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment; (3) that such negligence was a proximate cause of the accident.

The test on appeal from an order sustaining or overruling a plea of privilege is the same as in any other civil case. If the evidence is conflicting and there exists in the record evidence of sufficient probative force to support the judgment of the trial court, then the judgment should not be disturbed on appeal. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97. On appeal from an order overruling (or sustaining) a plea of privilege, there being no findings of facts or conclusions of law, 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, 323.

We have read and considered all of the evidence in the 124 page statement of facts and have concluded that there is evidence of sufficient probative force to support the trial court’s implied finding that the defendant did commit an act or omission of negligence in Bee County as alleged which was the proximate cause of the accident and of the death of plaintiff’s husband. Appellant argues that Section 138, Article 6701d, applies only to disabled vehicles, and contends that since the trouble Farris had been having with the truck’s air-conditioning belt did not render it disabled, and since in any event, Farris’ truck was not involved in the accident, no act of negligence per se, or statutory negligence was proved. We do not need to decide whether Section 138 or any other penal statute is applicable here and do not so decide. We hold, without further discussion of the evidence in view of the probability of a trial on the merits, that the testimony, including that of the highway patrolman who made the investigation and of all other witnesses, was sufficient to raise a fact issue of common law negligence and proximate cause concerning the acts and omissions of defendant in stopping and leaving his truck where it was left, under all of the facts and circumstances of this particular case. Hommel v. Southwestern Greyhound Lines, Tex.Civ.App., 195 S.W.2d 803, 808. The implied finding of such negligence and proximate cause by the trial court is supported by the evidence, and should not be set aside.

Judgment affirmed.