author: STEPHENSON, Justice.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Clyde SMITH, Appellee.
    No. 6602.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 12, 1963.
    Rehearing Denied Jan. 8, 1964.
    Keith, Mehaffy & Weber, Beaumont, for appellant.
    Carl Waldman, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a suit brought under the Workmen’s Compensation Law of Texas. Plaintiff recovered judgment, based upon finding of the jury, for total and permanent disability. The parties will be referred to as they were in the trial court.

Defendant contends that there was no evidence to sustain the findings of the jury as to total and permanent disability, that there was insufficient evidence to sustain such findings, and that such findings were against the great weight and preponderance of the evidence. These contentions were raised by 5 separate points which were then briefed and argued together. The defendant treats the legal import of each as being identical to the other, .and actually only asks this court to consider the record as a whole and to remand the case for a new trial. The defendant, in effect, abandons the point of “no evidence” and relies solely on the points of “insufficient evidence” and “against the great weight and preponderance of the evidence”.

A consideration of these points necessarily requires a review of the testimony of the witnesses as to the physical condition of the plaintiff. The record shows that plaintiff was injured November 22, 1957. The fact that plaintiff received a serious injury is not controverted. The defendant furnished plaintiff an operation to repair a herniated disc February 25, 1958. Plaintiff returned to work May 12, 1958, and has continued to work for the same employer to the date of the trial, May 22, 1962. That plaintiff was at all material times employed as a vat operator which is a job requiring climbing and walking. That plaintiff’s wage rate was $3.03 per hour on the date of the injury, and $3.33 per hour at the time of trial. Plaintiff had been working 40 hours per week at both times. There is no evidence that plaintiff lost any time from word because of this back injury in 1959, 1960, 1961, or 1962 to the date of trial. Defendant offered evidence that plaintiff was able to do his work as a vat operator, and had been doing it, without complaint. Dr. Earl Rafes, a witness called by defendant, testified as follows:

In reference to a myelogram taken by Dr. Tyner December 16, 1960 he testified:

“ * * * In my opinion, this myelo-gram does not represent in any way a herniation of the disk, but merely represents a thickening of the annulus or covering which the disk had originally, and you see the disk is entered not from here, but from the sides, so this covering remains, or and it represents a little thickening of the edge of the bone in this area and does not represent a herniated disk.”
“Q. The last time you saw him, did you find anything organically wrong with him to justify the complaints that he was having at that time?
“A. No.
“Q. You found nothing wrong with him that was not wholly voluntary?
"A. I would think the basis for his complaints were unfounded the last time I saw him; that he does not have a perfect back; if he attempted to do extremely heavy labor, he might have difficulty and I would say he would; there’s no justification for further treatment in this case.”

On the other hand, the plaintiff testified he had a wife and five children, and as follows:

“Q. Now, after you went back to work and up until this time, how have you made out with your work?
“A. Well, I’ve struggled along with it.
“Q. What difficulty have you had? Let’s take in climbing, do you still do climbing?
“A. Yes, sir, it’s part of my job.
“Q. Well, how do you make out doing the climbing?
“A. Well, I don’t do so well on it. It bothers me a lot when I climb.
"Q. What bothers you?
“A. My legs and back.
“Q. Did you ever have that kind of trouble before this accident happened to you?
“A. No, sir.
“Q. Do you go ahead and do the climbing anyway?
“A. Yes, sir.
“Q. Do you have to do a little bit of walking ?
“A. We do lots of walking.
“Q. You do lots of walking?
“A. Yes, sir.
“Q. How do you make out doing the walking?
“A. It tires me out and bothers me a lot to have to walk. I use my car on the job.
“Q. Well, how do you use your car?
“A. From the blending station, we have a place there we work from and we have those tanks we have to read now, keep switching them around, we have to gauge them, and they’re a pretty good ways apart, and I use my car.
“Q. You keep your car out there at the plant?
“A. Yes, sir.
“Q. Did you ever have to use your car before out there ?
“A. No, I never used it before.”
“Q. How about climbing over those tanks and vats?
“A. We climb, but I don’t do too much bending. I can’t.
“Q. Why can’t you ?
“A. If I done much bending, I believe it would put me in the bed.
“Q. Did you have any trouble like that before this accident?
“A. No, sir.
“Q. Can you do any lifting or anything like that without it hurting you a great deal, Clyde?
“A. Well, I haven’t tried too much lifting since I had my operation, but it bothers me to lift.
“Q. Have you ever gone out and taking a physical to go to work any place other than Texas Gulf Sulphur since you went out?
“A. No, sir.
“Q. You’ve been working there for them?
“A. Yes, sir.
“Q. Have you ever taken a physical before for other work?
“A. Yes, sir.
“Q. Clyde, what is your situation now? How do you feel, how do you get along?
“A. I hurt all the time. I mean, I’m in misery all the time.
“Q. Are you the same all the time?
“A. Well, it bothers me at times worse than it does other times.
“Q. Are you really able to do this work you’re doing out there, Clyde?
“A. Well, I wouldn’t think so.
“Q. Why aren’t you able to do it?
“A. Well, it’s just too much walking and climbing.
“Q. And do you do it in a lot of pain?
“A. Yes, sir.
“Q. Do you feel that you're getting better or worse?
“A. I’m about the same.
“Q. You mentioned your legs. What kind of trouble are you having with your legs?
“A. Well, I have trouble with my legs. My right leg and hip bothers me a lot when I do walking and climbing.
“Q. Can you describe the pain to the jury?
“A. Well, it goes down in my legs, plumb down to my ankles.
“Q. Did you have that same type of pain before the operation?
“A. Before the operation, no, sir.
“Q. You had some leg pain before the operation, didn’t you?
“A. Before the operation, I had a little pain in my leg.
“Q. Is the pain worse in your leg since the operation than it was before ?
"A. Yes, sir.”
“Q. Clyde, which man told you to do what that you couldn’t do?
“A. Mr. Rudin, Bobby Rudin.
“Q. What did he tell you to do that you couldn’t do ?
“A. He wants us to change those lines and change those ropes on the tanks.
“Q. On the tank or on the vat?
“A. On the tanks and -the lights on the vats.
“Q. The rope on the tank, the thing that holds that measuring stick ?
“A. Yes, sir, it’s on a little track-you have to climb up.
“Q. Did you change it ?
“A. No, sir. ;
“Q. Why didn’t you? :
“A. I didn’t- feel -like it. ■
“Q. Whát'do-you méan ?
“A. I didn’t want to climb up there.
“Q. Why didn’t you-.want to climb: up there? :
“A. I wasn’t able to.
'•‘Q. Did he ever jump on' you about it?
“A. No,'sir, he never:said-anything to me.
“Q. Who ended up changing that rope ?
“A. The one that relieved me. Adair, I believe, changed it the last time.
“Q. At any time you have to change them, it’s when they’re being used ?
“A. That sulphur rots them out.
“Q. And the lights were on the vat?
“A. Yes, sir.
“Q. Where were those lights on the vat?
“A. The lights on a vat is on the top of those ladders, that deal he’s drawed off; the side of the vat that goes up above the vat. They go higher, where the pipe can hang out over the forms and the lights are up above that.
“Q. You’d have to climb way up?
“A. You have to go up higher to get to the lights.
“Q. Did you change those lights?
“A. No, sir, I don’t change no lights.
“Q. They go out from time to time?
“A. Yes, sir.
“Q. And you don’t change those?
“A. No, sir.
“Q. Why not?
“A. Because I’m not able to climb. I’m scared to climb up there.”

Dr. Furman H. Tyner, a witness called by plaintiff, testified he was a radiologist, and took a myelogram of plaintiff’s back December 16, 1960, and as follows:

“Our positive finding was tfie, protrusion of some of the fourth disk up to produce a knot in the column. The opaque column as it lies down envelopes at the protrusion and produces this knot going up into the vertebral canal and thus displacing that much of the opaque oil. That was the positive finding at four.”
“Q. Doctor, I have just a couple of questions. First of all, based upon your myelogram, your myelogram report there, is it your conclusion or opinion the defect you found there, the notches, are compatible with a ruptured disk at that level?
“A. At the fourth disk level, yes, sir.
“Q. Now, Doctor, is that the same disk level that was operated on?
“A. Yes, sir.
“Q. Is it your opinion that there is still some material left there or has come out somewhere that has protruded into the intervertebral canal and the paramedian ?
“A. Into the intervertebral canal, whether or not there’s any in the foramina you couldn’t tell from an x-ray picture or myelogram. There is extraneous or disk material from the fourth disk protruding out of its normal confines, which is variously classed as protrusion, herniation or rupture. It means the same thing.”

Dr. James Albert Brown, a doctor called by plaintiff testified as follows :

“A. Well, the history of the type of injury, letting himself drop to his feet and jarring himself, that’s one of the ways in which we get these disks, and then subsequent history, the way he gradually became worse and went in for myelograms and operation and his improvement after the operation for a period of several weeks and then getting worse again, especially when he was up and around or bending excessively. And that condition lasted a good bit more than six months and at the end of six months, I would consider it chronic and considered it time to do something else with this individual anyhow, but it was considerably more than six months. So, I considered that this individual within reasonable probability had a permanent condition in his back, requiring further surgery, and accordingly, sent him in for a myelogram to see whether I was going to have to do something for his disk at the time of the operation, which I had recommended that the individual take, and at the time of the myelogram, found some protrusion of the fourth lumbar intervertebral disk and found the column of fluid sitting back from the fifth disk so far that it would be possible to have a hernia there. So, consequently, the myelo-gram was helpful, in that if he permits me to operate on that back, I shall explore the fourth disk and the fifth disk to see. what was irritating them, because scar tissue would not show in the x-rays or in the myelogram in many instances.
“Q. Doctor, with regard to a fusion in this area, what is your recommendation based on reasonable medical probability ?
“A. Well, I recommend that he have the fusion, plus exploration of the disks and nerve roots at the fourth and fifth lumbar disk levels.”
“Q. Now, Doctor, I heard you say you felt his condition was chronic or permanent, is that correct?
“A. It’s my opinion that that is the situation.
“Q. Doctor, considering the type of work this man advised you he was doing, that he’s required to do a lot of climbing, walking, stooping and bending, and some lifting, do you feel he can do that usual type of work that he has been doing, that he’s able to do it?
“A. In my opinion, he is incapable of doing heavy manual type of labor, requiring heavy lifting or excessive stooping or pushing without suffering a great deal from it.
“Q. How about climbing?
“A. I would say climbing is pretty difficult, too, but not as bad as, in this particular instance, as lifting or carrying heavy loads or something of that sort.
"Q. How about walking long distances ?
“A. Walking, yes, it would be difficult.
“Q. Doctor, do you feel that if you were to see him for an industry, would you pass him for employment, could he get a job if you or any other competent doctor would examine him and tell him what his condition was and his complaints ?
“A. I wouldn’t pass him for employment. I can’t speak for the other doctors.”
“A. In my -opinion, this individual is definitely handicapped and certainly moderately disabled and incapable of competing on an equal .basis with other men in doing heavy manual type of labor.”

Merle Smith, plaintiff’s wife, testified as follows:

“A. He doesn’t get to do anything hardly around the house. Before he was hurt, he always had a garden, trimmed the hedges, mowed the lawn and was at work all the time, just about. He can’t do any of that now.
“Q. What about now, this long after the operation, is he getting back to his yard work?
“A. No, he tries every once in a while, but he can’t hold up at it. He can’t do anything.
“Q. When he does, what happens?
“A. Well, he gets down; he hurts worse.
“Q. What about in the morning when he gets up, tell the jury what you told me.-
“A. He can’t hardly get out of bed. It takes him a while to get straightened up. He’s stiff and hurts.
“Q. Mrs. Smith, just tell the jury the difference in him since this operation and since he got hurt?
“A. Well, it’s all together different. He can’t do any work like he used to. He wants to do it, but he’s not able. If he tries it, he gets worse. Of course, that’s not good for anybody, they like to get out and do their own work. It makes them nervous to see a lot of things that need to be done and can’t do it.”

Several witnesses called by plaintiff testified about plaintiff’s complaints of pain after the operation and until the date of the trial, and of plaintiff’s difficulty in climbing and walking. Lawrence Nelson, a witness called by defendant, testified that plaintiff spent a great deal of his time while on the job, laying down and sitting down.

Considering the record as a whole, as we are required to do, in passing upon the points of “insufficient evidence” and “against the great weight and preponderance of the evidence” we cannot say that the jury’s findings are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. King v. King, 150 Tex. 662, 244 S.W.2d 660.

There seems to be no fixed rule of evidence by which a claimant is required to establish the fact that he has suffered an injury that caused permanent total disability. The rule seems to be that where it can reasonably be inferred from the evidence that the plaintiff’s injuries are permanent and totally disable him from performing his usual tasks as a workman in such a way as to enable him to procure and retain employment, a verdict in his favor on the issue of total permanent incapacity will be affirmed. Traders & General Ins. Co. v. Daniel, Tex.Civ.App., 131 S.W.2d 276.

The duration and extent of disability resulting from an injury is at best an estimate which must be determined by a jury from all of the pertinent facts before it. The issue as to disability may be established by the claimant alone, and this is true even though his testimony may be contradicted by medical witnesses. American General Ins. Co. v. Florez, Tex.Civ.App., 327 S.W.2d 643. A recent example of this last point is made in Texas Employers Ins. Ass’n v. Price, Tex.Civ.App., 336 S.W.2d 304. The plaintiff’s doctor had testified that the plaintiff’s back had been improved by the operation and estimated that plaintiff suffered 20 percent partial permanent disability. We quote from the opinion:

“ * * * This testimony is not consistent with the finding of the jury and the testimony of appellee to the effect that he has sustained total and permanent incapacity. It is the province of the jury, however, to determine the weight to be given evidence and to reconcile conflicts or inconsistencies therein. 17 Tex.Jur. 408. The matter under consideration was not one for experts and skilled witnesses alone. Appellee testified that he could not work without pain, that his back was getting worse, that he was having to wear a brace with which he had previously been fitted by Dr. Brelsford. Dr. Brelsford testified that appellee had sustained permanent incapacity although not total, but that he would not pass him to follow his trade. The fact that appellee’s testimony was in conflict with expert opinion testimony concerning the extent of his disability did not, under the circumstances, render it insufficient to support the verdict.”

Again, in Angelina Casualty Co. v. Spencer, Tex.Civ.App., 310 S.W.2d 685, it is written :

“The question of duration of the incapacity of an injured person can never be answered precisely. The injured party’s own statements about how he got hurt, where he hurts at the time he was testifying and what he is able to do and what he is unable to do, can serve only as aid to the jury in making some reasonable, fair estimate of the term of disability. The opinions of medical experts have been held not to be controlling and can also be only a matter of aid to the jury in making their reasonable estimate of the term of disability.”

The plaintiff in the case at bar has been working almost continuously since returning to work following his operation, and under his own testimony has been doing most of the work required of him, although doing so, in pain. However, it is well settled that the fact a claimant continued to work and earn money since his injury is not controlling on the issue of total and permanent disability, but it is evidence to be considered with other facts and circumstances before the jury. Texas Employers Ins. Ass’n v. Cummings, Tex.Civ.App., 364 S.W.2d 255.

Also, the Commission of Appeals, wrote in Davies v. Texas Employers Ins. Ass’n, Tex.Com.App., 29 S.W.2d 987:

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

Defendant presents an able argument in support of its position, and relies heavily upon Texas Employers Ins. Ass’n v. Moran, Tex.Civ.App., 261 S.W.2d 855, and Texas Employers Ins. Ass’n v. Vineyard, Tex.Civ.App., 316 S.W.2d 156. In each of these cases, the findings of total and permanent disability were found by the Court of Civil Appeals to be against the great weight and preponderance of the evidence. Also, in «ach of these cases, the plaintiffs had been able to obtain as well as retain employment. In the present case at bar, the plaintiff had stayed on the job with the same employer, and therefore had not passed a pre-employment examination, and being on the same job, had been able to get those following him on the next shift to perform some of the tasks required of him which he testified he could not do. The testimony of Dr. John Albert Brown that he would not pass the plaintiff for employment, together with the other testimony, raised an issue for the jury to determine, as to whether the plaintiff was physically able to obtain employment.

The Supreme Court said in Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73:

"Since the workman coming under the terms of the Act is denied his common law rights it is held that the Act should be liberally construed in his favor. * * * A liberal interpretation will award him the greatest benefits the nature of his injuries will sustain.”

The points are overruled.

If we be mistaken as to the waiver of the point of “no evidence”, as mentioned before, we will consider the evidence favorable to the verdict and disregard all other. The point is overruled.

The trial court defined “injury” in the usual terms and included “incitement, acceleration or aggravation”. Defendant contends this was reversible error inasmuch as the plaintiff had no pleadings which would sustain the ‘incitement, acceleration or aggravation” portion of the charge. The trial court should not have included that portion of the definition in its charge, but the defendant has not demonstrated, and we do not see, how the defendant could be harmed under the circumstances in this case. The point is overruled. Rule 434, Texas Rules of Civil Procedure.

The other points raised by defendant having been considered and found to be without merit, are overruled.

Affirmed.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    Richard SULLIVAN et al., Appellants, v. SISTERS OF ST. FRANCIS OF TEXAS, d/b/a Refugio County Hospital, Appellee.
    No. 14155.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 31, 1963.

      Edwards & De Anda, Corpus Christi, Frederic Johnson, Sinton, for appellants.
    K. D. Hall, Refugio, Lewright, Dyer & Redford, Corpus Christi, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by Richard Sullivan, individually and as personal representative and next of kin of his minor son, Daniel Joseph Sullivan, deceased, hereinafter referred to as Danny, and as manager of the community estate existing between himself and his wife, Cassandra Sullivan, against Sisters of St. Francis of Texas, d/b/a Refugio County Hospital, Southwestern Drug Corporation and Eli Lilly & Company, seeking to recover damages growing out of the injury and death suffered by Danny, alleged to have been caused by the negligent administration of a dose of ipecac by employees of the Hospital. The trial court severed the causes of action against Southwestern Drug Corporation and Eli Lilly & Company, and granted the Hospital’s motion for a summary judgment, from which judgment the plairitiffs have prosecuted this appeal. • '' ' ■

The motion for a summary judgment on behalf of the Hospital set up its immunity as a charitable institution. Appellants anT swered the motion for a summary judgment in effect admitting the charitable immunity of the Hospital, but alleging that there are certain recognized exceptions to -.the- doctrine of charitable immunity, among which is that a charity may be held liable for administrative negligence in the performance of a non-delegable duty as distinguished from employee negligence. It was charged that the Hospital was guilty of administrative negligence in failing to employ a registered pharmacist, under the circumstances of this case, to administer its pharmacy or drug room, and that such negligence was a proximate cause of the death of Danny.

Appellants alleged “that at all times pertinent to this law suit such Defendant failed to comply with the standards established by the Joint Commission on Accredation of Hospitals and of the American Hospital Association in regard to the operation of pharmacies and drug rooms; the storage, safeguarding, preparation, and dispensing of drugs; competency of department personnel; control of dangerous drugs; and medical staff committee on the formulation of drug policies.” And further alleged that “These failures and each of them were negligence, a proximate cause of the death of Danny Sullivan, and an exception to the rule of Charitable Immunity.”

Appellants further alleged “that such Defendant was guilty of administrative negligence in failing to provide adequate personnel for the operation of the hospital’s pharmacy or drug room facilities and the distribution of drugs; and in failing to formulate and carry out a proper and adequate policy, with the necessary and proper rules and regulations, governing the operation of the hospital’s pharmacy or drug room and the dispensing of drugs from the pharmacy or drug room. These failures and each of them, were negligence, a proximate cause of the death of Danny Sullivan, and an exception to the rule of Charitable Immunity.”

Appellants stipulated that appellee is a charitable institution, and that they would have no cause of action unless it was based upon one of the well-recognized exceptions to the rule of charitable immunity.

Appellee filed no reply to this answer. Neither the motion nor the answer was verified. No supporting affidavits were filed either by appellants or appellee. The only support for the motion for summary judgment was the unverified pleadings, the depositions of Sister Mary Severine and Sister Mary Judith, and the Charter of the Hospital. The Charter shows that the Hospital is a charitable institution and that its incorporators are Mary Sebastian Waurni-ak, Mary Chrysantha Bentley, and Mary Judith McCoy.

From the depositions of the two sisters, it is shown that at about 2:30 in the afternoon on December 31, 1961, Danny Sullivan was taken to the Hospital by his grandmother, Mrs. Rita Sneed. He had apparently taken some tablets of an unknown type. Danny was taken into the emergency room of the Hospital where he was treated by Dr. Anderson. Upon orders from the doctor a dose of “ipecac” was given to Danny by Sister Mary Severine. This dose of “ipecac” was two teaspoons. A second dose, which the Sister attempted to administer, was the same size. The “ipecac” in question was in the emergency room and was marked “Syrup of Ipecac” although it may have been “fluid extract of ipecac.” It is contended that as a result of his taking such “ipecac” Danny Sullivan died. A second child to whom some of the same “ipecac” was administered died in the hospital during the same week.

In August or September, 1961, the hospital purchased a pint bottle of “Ipecac”— “Fluid Extract.” The pint bottle of “Ipecac” went to the drug room, where it was broken down into smaller bottles as it was needed in the emergency room. This was the only “Ipecac” in the drug room at the time.

Sister Mary Judith was not a registered pharmacist, she had no training in pharmacy other than that taken during her formal nurse’s training in the year 1923. There was no one on the staff of the hospital who was a registered pharmacist. Although Sister Mary Judith was in charge of the drug room, she did not know the difference between “fluid extract of ipecac and syrup of ipecac,” she said, “Well, there must be. I don’t know. I couldn’t— I am not a pharmacist and I wouldn’t know.” At that time, she did not know “whether or not the administration of straight extract of ipecac would be in any way harmful to a child to whom it was administered.”

There was no control exercised by the administrators of the hospital over the drug room. In fact, the “pint bottle of ipecac” in question was “just sitting on the shelf in the drug room, like any other bottle of medicine,” and although Sister Mary Judith and her assistant were supposed to break down the big bottle of the drug to the smaller ones, the Sisters had no idea who had removed the “Fluid Extract” from the origi-. nal pint bottle.

It should be noted that the hospital generally buys drugs in large quantity containers, which are broken down from big bottles to little bottles in the drug room. All of the breaking down was done by Sister Judith and her assistant, Mrs. Schaffer, neither of whom are pharmacists.

At all times pertinent to this lawsuit the Sisters of St. Francis of Texas were in complete control of the Refugio County Hospital of which Sister Mary Judith was an incorporator and a member of the original Board of Directors. There was no deposition by Mrs. Schaffer who was in charge of the drug room on December 31, 1961, when Danny was brought to the Hospital.

When a defendant moves for a summary judgment he must assume the negative burden of clearly showing, as a matter of law, that plaintiff has no cause of action against him. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Glasgow v. Floors, Inc. of Tex., Tex.Civ.App., 356 S.W.2d 699; Seale v. Muse, Tex.Civ.App., 352 S.W.2d 534; Achterberg v. Gillett, Tex.Civ.App., 322 S.W.2d 306, ref. n. r. e. 159 Tex. 591, 325 S.W.2d 384; Neigut v. McFadden, Tex.Civ.App., 257 S.W.2d 864; Statham v. City of Tyler, Tex.Civ.App., 257 S.W.2d 742; O’Quinn v. Scott, Tex.Civ.App., 251 S.W.2d 168; De La Garza v. Ryals, Tex.Civ.App., 239 S.W.2d 854.

All doubt as to the existence of a genuine issue as to any material fact must be resolved against the party moving for summary judgment. Smith v. Ellis, Tex.Civ.App., 319 S.W.2d 745; Archer v. Skelly Oil Co., Tex.Civ.App., 314 S.W.2d 655, ref. n. r. e. 159 Tex. 154, 317 S.W.2d 47; Trammell v. Trammell, Tex.Civ.App., 290 S.W.2d 324; Gunnels v. Atcheson, Tex.Civ.App., 288 S.W.2d 878; Feldman v. Drumheller, Tex.Civ.App., 284 S.W.2d 237; Roberson v. Allstate Ins. Co., Tex.Civ.App., 278 S.W.2d 179; Kenny v. Starnes, Tex.Civ.App., 277 S.W.2d 919; Ward v. Stroud, Tex.Civ.App., 274 S.W.2d 136.

When the record in a negligence case discloses no full development of the facts, the entry of a summary judgment for defendant is improper, since the issue of negligence is ordinarily one of fact, requiring a full development of all the facts as a basis for a proper finding. Loud v. Sears, Roebuck & Co., Tex.Civ.App., 262 S.W.2d 548.

The duty of a court in hearing a motion for a summary judgment is to determine if there are any issues of fact to be tried, and not to weigh the evidence or determine its credibility. Gulbenkian v. Penn, ■ supra.

Questions of negligence and proximate cause are usually issues of fact which cannot be determined by a summary judgment. Fuller v. Southwestern Greyhound Lines, Inc., Tex.Civ.App., 331 S.W.2d 455.

With these well recognized principles of law applicable to the granting or refusing of summary judgments in mind, we have concluded, from the limited record before us, that appellee did not discharge the negative burden resting upon it of clearly showing that appellants did not have a cause of action against it. The charitable immunity doctrine does not protect appellee from liability for injuries caused by administrative negligence on the part of ap-pellee as to non-delegable duties. The depositions of the two-’Sisters do not conclusively show that Danny’s death was not caused by administrative negligence.

Inasmuch as the judgment must be reversed and the cause remanded we deem it advisable not to discuss the evidence in detail.

The summary judgment is reversed and the cause remanded.


author: DENTON, Chief Justice.

text:
    Thornton G. DEWEY, Appellant, v. C. I. T. CORPORATION, Appellee.
    No. 7309.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 16, 1963.
    Rehearing Denied Jan. 20, 1964.
    Harris E. Lofthus, Amarillo, for appellant.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellee.
   DENTON, Chief Justice.

This is a suit on a promissory note. C.I.T. Corp., payee, filed suit against appellant, Thornton G. Dewey, seeking to hold Dewey personally liable on the balance due on a promissory note. The note was executed by Tri-State Tire Service, Inc., as maker by Dewey as president. The Corporation was not joined as a defendant as it had previously gone into bankruptcy. The trial court granted C.I.T. a summary judgment against appellant individually and he has perfected this appeal.

On the reverse side of the note the following statement was printed thereon:

“All of the undersigned hereby waive presentment and demand for payment, protest and notice of nonpayment and protest and consent that the holder hereof may, without notice to and without releasing the liability of any of the undersigned hereunder as unconditional endorser(s), compound or release, by operation of law or otherwise, any rights against, and grant extensions of time to the maker(s) or any endorser (s).” (Emphasis added.)

Below this statement Dewey again fixed his signature. Appellee admitted in open court that the word “individually” was typed alongside Dewey’s signature after it had been signed. Appellant contends he at no time intended to bind himself personally on the note; but that he signed the note and the waiver of presentment and demand for payment in his capacity as president of TriState Tire Service, Inc., and on behalf of said corporation.

It is appellant’s position that whether or not he intended to bind himself personally for payment was a fact issue and such fact issue precluded the granting of a summary judgment for appellee. The intention of appellant not to bind himself is not material. Any evidence of such an intention would be inadmissible on the ground it would be an attempt to vary a written instrument by parole evidence. Henslee v. First Nat. Bank of Whitewright, (Tex.Civ.App.), 314 S.W.2d 881; Waxahachie Nat. Bank v. Forreston Gin Co., (Tex.Comm.App.), 46 S.W.2d 666; Blucher v. Eubank, (Tex.Comm.App.), 5 S.W.2d 972. Thus, in view of this well-settled rule, appellant’s contention cannot be said to have raised a fact issue.

We now must turn to the instrument itself to determine appellant’s liability. Section 20 of Article 5932, Vernon’s Ann. Tex.Civ.St, the Texas Negotiable Instruments Act, reads:

“Sec. 20. Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.”

There was nothing to disclose the principal in the contract of endorsement, and there was nothing in the waiver notice to exempt appellant from personal liability. First State Bank of Ovalo v. Ovalo Warehouse Ass’n, (Tex.Civ.App.), 276 S.W. 773, (Error Dismissed, WOJ).

Section 17 of the same act reads:

“Where the language of the instrument is ambiguous or there are omissions therein, the following rules of construction apply: * * *
“6. Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign he is to be deemed an indorser”

Section 63, Article 5936 reads as follows r

“Sec. 63. A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor, is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.”

We therefore conclude the endorsement of appellant on the back of the note did not restrict his liability to his representative capacity, but the endorsement rendered him personally liable for the payment of the note as an indorser.

Appellant next contends that even though he may be liable on the note he cannot be held liable for the payment of the fifteen per cent attorneys’ fees provided for in the note. Appellant argues that there can be no liability on his part for attorneys’ fees in the absence of an express, agreement on the part of a grantor or surety, and in the absence of evidence of reasonableness of the attorneys’ fees. These contentions are not supported by the authorities. The Supreme Court in Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, held:

“It is now settled that as between the legal owner and holder of a promissory note and those who are obligated to pay the same, the former is prima facie entitled to recover the attorney’s fees stipulated therein upon the happening of the contingency which makes the same payable. In the absence of an issue affirmatively tendered by the defendant, it is not necessary for the plaintiff to prove an agreement to pay such fee to an attorney or that the same is reasonable.”

The record shows appellant did not raise an affirmative issue relative to either of these conditions. We therefore hold the points of error present no reversible error.

The judgment of the trial court is affirmed.

Affirmed.


author: BARROW, Justice.

text:
    John PALMER, Appellant, v. Crystal PALMER, Appellee.
    No. 14171.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 18, 1963.
    J. Earl Barnhouse, Alice, for appellant.
    Lloyd, Lloyd & Dean, Alice, for appellee.
   BARROW, Justice.

This is an appeal by John Palmer from an order of the District Court of Jim Wells County, Texas, sustaining Crystal Palmer’s plea to the jurisdiction and dismissing his suit for divorce. The District Court of Tulsa County, Oklahoma, had previously granted Crystal Palmer a divorce from John Palmer and the Texas court held that under the full faith and credit clause of the United States Constitution, as well as by reason of comity, it did not have jurisdiction of the marital status of the parties.

The parties were married in 1940 and have three minor children. Appellee and the minor children have lived in Oklahoma since 1960 and all the community property of the parties is located in Oklahoma. On August 9, 1962, appellant filed this suit for divorce in Texas. On the same date appel-lee filed her suit in Oklahoma. The file marks show that appellant’s suit was filed first. Appellee cited appellant by publication, and on September 20, 1962, judgment was entered by the Oklahoma District Court granting appellee a divorce. No appeal was had from that judgment. On November 12, 1962, the Texas trial court quashed appellant’s attempted service of appellee. On January 7, 1963, appellee filed her plea to the jurisdiction in appellant’s Texas suit and, after a hearing, the trial court entered this order of dismissal. Duly authenticated copies of the petition, affidavit for publication, and final judgment in the Oklahoma proceedings were introduced at the hearing on appellee’s plea to the jurisdiction. The Oklahoma judgment recites that proper service was had upon appellant.

The introduction of the Oklahoma judgment made a prima facie case for ap-pellee and the burden was upon appellant to establish that the judgment was not final and subsisting, or that the court did not have jurisdiction to render it. Dowden v. Fischer, Tex.Civ.App., 338 S.W.2d 534; Garman v. Reynolds, Tex.Civ.App., 284 S.W.2d 262, writ ref; Liddell v. Blevins, Tex.Civ.App., 244 S.W.2d 335.

Appellant asserts that the Oklahoma judgment is void on its face for the following reasons: The Texas suit was filed prior thereto; the petition contained in the duly certified transcript of the Oklahoma proceedings is not signed; appebee was a resident of Creek County, Oklahoma, where the community real estate is located, and not of Tulsa County; and appellee swore to a lie in her affidavit for publication when she swore that she did not know the residence of appellant. The affidavit of appellee recited that appellant was not a resident of Oklahoma and could not be served in Oklahoma. Appellant’s last known address was correctly given as Fulfurrias, Texas, where he was mailed a copy of the petition and affidavit.

Appellant failed to discharge his burden to show that the Oklahoma law did not permit service in the manner shown in the transcript of the proceedings. Dowden v. Fischer, supra; Liddell v. Blevins, supra; Roland v. Roland, Tex.Civ.App., 244 S.W.2d 318. Appellee was domiciled in Oklahoma and this judgment is entitled to full faith and credit in Texas under Art. IV, § 1, of the United States Constitution. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; 28 A.L.R.2d 1304. The trial court, therefore, correctly held that it did not have jurisdiction of the marital status of appellant and appellee.

It is further seen that the trial court was permitted upon the principal of comity, to recognize the divorce granted by the Oklahoma court, since the appellee, the children of this marriage, and all the community property were located in Oklahoma. Short v. Short, 163 Tex. 287, 354 S.W.2d 933; Autry v. Autry, Tex.Civ.App., 350 S.W.2d 233; Cohen v. Cohen, Tex.Civ.App., 194 S.W.2d 273; Evans v. Evans, Tex.Civ.App., 186 S.W.2d 277.

The judgment of the trial court is affirmed. ■Ti


author: McNEILL, Justice.

text:
    George EDWARDS, Appellant, v. Jack F. FOWLER et al., Appellees.
    No. 6593.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 24, 1963.
    Rehearing Denied Dec.’ 11,1963.

      Carl Waldman, Beaumont, for appellant.
    Strong, Pipkin, Strong & Nelson, Keith, Mehaffy & Weber, Beaumont, for appellees.
   McNEILL, Justice.

This suit for damages arises out of a collision occurring just south of the intersection of Gladys and Mariposa Streets in Beaumont, between a panel truck owned by Jack F. Fowler and driven by his employee, Howard James Cullings, and a Chevrolet automobile owned and driven by the plaintiff, George Edwards. The action was brought by plaintiff against Fowler, his employee Cullings, and Beaumont City Lines.

Cullings stopped his employer’s truck on Mariposa Street headed in a northerly direction at said intersection in response to a red traffic light. The streets were each about 30 ft. wide. Shortly thereafter the plaintiff brought his car to a stop behind Cullings’ vehicle, likewise headed north on Mariposa. Thereafter, a bus owned by Beaumont City Lines and driven by its employee, Carleton, which had been traveling east on Gladys Street, proceeded to make a right turn onto Mariposa from Gladys on a green light. As the bus turned right at the intersection and headed south on Mariposa, Cullings backed up his panel truck to permit the bus to have more room to make its turn. When Cullings backed his panel truck, he struck the front end of plaintiff’s car stopped behind him. This impact is claimed to have caused plaintiff’s injuries and damages.

On the trial of the case the jury returned a verdict' finding that none of the defendants were guilty of negligence proximately causing the collision; and that the collision was the result of an unavoidable accident. Upon this verdict judgment was rendered that plaintiff take nothing. He has appealed and since the parties occupy the same relative positions- here as in the trial court, they will be referred to as there described.

Plaintiff urges four points of error to reverse the judgment against him. All of the complaints made are based upon the refusal to submit his specially requested issues. In passing upon these questions we must view the situation-as it existed at the time the charge was: given, not after the verdict was returned. Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951. The first point asserts the trial court erred in failing to give plaintiff’s specially requested issues, whether the bus driver on the occasion in question, failed to keep a proper lookout, and the subsidiary issue of proximate cause. The evidence fails to raise the primary issue. The bus driver saw both the panel truck and plaintiff’s car •'stopped behind it at all times as the ■ bus turned the cooler and proceeded south on Mariposa. .The bus was making “a plain, old, ordinary bus turn, and in the plain, old, ordinary way”. It hit nothing and nobody, and its changing position at no time created danger of doing so.- - The point is without merit. Firestone Tire & Rubber Co. v. Rhodes, Tex.Civ.App., 256 S.W.2d 448.

Plaintiff’s second point urges the court erred in failing to submit the specially requested issues, whether the bus driver failed to warn' plaintiff that the bus was about to make a turn on the occasion in question, whether such failure was negligence, and whether it was a proximate cause of the accident. It was shown that at the time the bus was executing a turn to the right off of Gladys onto Mariposa the panel truck was stopped on its right side of Mari-posa some 6 ft. south of the Gladys Street line and that plaintiff’s car had stopped about a car’s length behind the truck and about a foot or two farther from the street’s center line than the truck. The bus was traveling slowly as it executed the turn and was never at any time in danger of striking the panel truck. There was testimony that the front end of the bus, as it turned the corner, extended over onto the east side of Mariposa. As the bus turned, the driver of the panel truck, Cullings, as an act of courtesy, backed the truck up. He did this, not that it appeared the bus would likely strike his truck, but for the reason that he thought unless he did so the bus could not complete its turn and proceed southwardly along Mariposa. The facts show without dispute that Cullings saw the bus as it came around the corner; hence, any signal from the bus driver would have added nothing as far as Cullings was concerned. Testimony; however, shows that the plaintiff in the car behind him did not see the bus. He said, “I wasn’t paying attention. I was watching, trying to peep around his truck.” He stated that he was planning to make a right hand turn onto Gladys and that h'e was therefore looking to the right of the panel truck. There was testimony that the panel truck backed up rapidly. Could the bus driver have reasonably foreseen that the operation of his bus would probably cause the driver of the panel truck to so back it up and strike the car behind it? To do so, one would have to assume that Cullings, the truck driver, would back up without ascertaining whether a vehicle was in close proximity behind him; that the driver of the car was inattentive to the situation; and, that the truck would be backed up rapidly, without warning plaintiff thereof, and thereby causing damage. When these circumstances are considered, we think, as matter of law, the bus driver should not be held to have reasonably anticipated or foreseen that this event or similar one would occur as a natural and probable result of his behavior on the occasion involved. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560; Jackson v. Schoenmann, Tex.Civ.App., 94 S.W.2d 225; 30 Tex.Jur. 676.

The third point asserts the trial court erred in refusing to submit plaintiff’s special issue which inquired whether the bus driver failed to yield the right-of-way to plaintiff on the occasion in question and the subsidiary issues of negligence and proximate cause. It will be recalled that plaintiff’s car had stopped behind the panel truck waiting for the traffic light at Mari-posa and Gladys to turn green. The bus was traveling east and turned onto Mari-posa going south. As it turned the corner, the operator of the panel truck, as a mere courtesy, backed up in order to give the bus a better clearance in the street. In backing up, the truck hit plaintiff’s car, doing it damage. The bus executed its turn without hitting any object and without creating a condition from which it appeared a collision between it and another vehicle was imminent. As the truck struck plaintiff’s car, the bus was going southwardly in its own right lane. The issue requested was whether the bus operator failed to yield the right-of-way to plaintiff, not whether the bus operator failed to yield the right-of-way to the driver of the panel truck stopped immediately ahead of plaintiff. No evidence raised the issue whether the bus operator failed to yield the right-of-way to plaintiff, for as to plaintiff’s car, the bus was never in the wrong lane. The issue was properly refused.

This last issue was correctly refused for another reason. The court submitted the issue, whether the bus operator failed to maintain proper control of the bus. The jury found that he did maintain proper control. The term “proper control” is one general in nature and under varying circumstances may mean somewhat different things. See Holly v. Bluebonnet Express Co., Tex.Civ.App., 275 S.W.2d 737, 740. Under the circumstances here, we think the issue of proper control also involved the question whether the bus operator failed to yield the right-of-way. Schuhmacher Co. v. Holcomb, Tex.Civ.App., 174 S.W.2d 637; affirmed, 142 Tex. 332, 177 S.W.2d 951.

We desire to mention a matter of briefing. Counterpoints of the Bus Co. assert that the court did not err in refusing to give each of the requested issues for three separate reasons — first, because there was no evidence to raise the issue; second, because there was insufficient evidence to justify the submission of such issue; and, third, because any affirmative finding thereto would have been contrary to the overwhelming weight and preponderance of the evidence. The second and third counterpoints under each issue are inappropriate to the questions involved. It was long ago held that where there is evidence upon an issue which amounts to more than a scintilla it is the trial court’s duty to submit the decision of the issue to the jury. The reason for this is stated in Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 82, 36 S.W. 247, 37 S.W. 319. See also Harpold v. Moss, 101 Tex. 540, 109 S.W. 928; Gulf, Colorado & Santa Fe Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933, 937; Wood v. American Security Life Ins. Co., Tex.Civ.App., 304 S.W.2d 559, 565. So, although the evidence may be insufficient to support a certain finding to an issue or the finding may be against the great weight and preponderance of the evidence, nevertheless, the trial court is required, in the first instance, if there is some evidence raising the issue to submit it for the jury to resolve.

Plaintiff’s last point is directed to that part of his suit against the truck owner, Fowler, and his operator, Callings. The point asserts the court erred in failing to give his requested issue inquiring whether the driver of the panel truck failed to have it under proper control. The court submitted issues of excessive rate of speed and the accompanying issues of negligence and proximate cause; failure to maintain a proper lookout, along with the accompanying issues of negligence and proximate cause and failure to warn plaintiff of his intention to back up with accompanying issues of negligence and proximate cause. Since the court submitted these various specific phases of conduct and driving on the part of defendant Fowler’s driver, a general issue as to control would be a duplication and should not have been submitted. Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143; Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266.

The judgment is affirmed.


author: CLAYTON, Justice.

text:
    TEXAS & PACIFIC RAILWAY COMPANY, Appellant, v. Vera DAVIS et al., Appellee.
    No. 5588.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 18, 1963.
    Rehearing Denied Jan. 15,1984.

      McDonald Shafer, Gilliland & Davis, Paul McCollum, Odessa, Hill D. Hudson, Pecos, for appellant.
    John J. Watts, Odessa, for appellee.
   CLAYTON, Justice.

This is a railroad crossing case in which appellant appeals from an adverse judgment granted appellees for damages and injuries arising from a collision between a tractor and tank semi-trailer being driven by one Carl Davis (who was killed) and a passenger train of the defendant company at a crossing in Odessa, Texas on February 5, 1959. Trial was to a jury on special issues, upon the answers to which the trial court founded its judgment.

Appellant based its appeal on five “propositions”, the first four of which will be considered together, and are as follows:

“FIRST PROPOSITION
“Where the Court required an affirmative answer to four (4) separate issues under Section 86 of Article' 6701d of the Revised Statutes of Texas as a condition of the jury’s answer to an inquiry as to whether deceased’s negligence was a proximate cause of th'e collision in question. Such conditional submission of Special Issue No. 67 placed an undue burden upon the Defendant and constituted error.
“SECOND PROPOSITION
“The Court’s refusal to submit to the jury proper requested material issues raised by both pleadings and evidence, constituted error.
“THIRD PROPOSITION
“Overruling of Defendant’s Motion of Judgment, after jury had found all essential facts to support complete defense was error.
“FOURTH PROPOSITION
“Failure to submit requested Special Issues constituting if answered, favorably to Defendant, a complete defense, constituted error.”

The fifth proposition sets out that where deceased approached from the south side of a' crossing, the trial court’s inquiry of the jury as to the condition of appellant’s signal lights should have been limited to the view from the south side.

Article 6701d, Section 86, T.R.C.S., referred to in appellant’s first proposition, in so far as it is relevent hereto, reads as follows :

“Sec. 86. Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within fifty (SO) feet but not less than fifteen (15) feet from the nearest rail of such railroad and shall not proceed until he can do so safely when:
“(a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a train; * * *
“(c) A railroad engine approaching within approximately fifteen hundred (1500) feet of the highway crossing emits a signal audible from such distance and such engine by reason of its speed or nearness to such crossing is an immediate hazard;
“(d) An approaching train is plainly visible and is in hazardous proximity to such crossing.”

The deceased apparently did not stop.

In Appellant’s first amended original answer, in Section V thereof, there were set out numerous acts of the deceased which were alleged to have been negligence on his part and which, individually and collectively, are alleged to be the proximate cause or causes of the collision in question, including that “he failed to stop his motor vehicle within 50 feet but not closer than 15 feet to the nearest rail of said track at a time when the engine constituted an immediate hazard clearly visible to a person using ordinary care.” The appellant also submitted several requested special issues and instructions to the jury, among them the following:

"SPECIAL ISSUE NO. SIXTEEN
“Do you find from a preponderance of the evidence that the train was plainly visible before plaintiff’s vehicle reached a point fifteen feet from the nearest rail of the track upon which the train was approaching?
“In connection with your answer to this special issue you are instructed that the train was plainly visible, if it was, when a reasonably prudent person situated as was the plaintiff, should have seen it in the exercise of ordinary care for his own safety, under all the facts and circumstances as shown by the evidence.”
“SPECIAL ISSUE NO. SEVENTEEN
“Do you find from a preponderance of the evidence that the train was in hazardous proximity to the crossing in question before the plaintiff reached a point fifteen feet from the nearest rail of the track upon which the train was approaching ?
“In connection with your answer to this special issue you are instructed that the defendant’s train was in ‘Hazardous proximity’ to the crossing, if it was, when under all the surrounding facts and circumstances in evidence and speed and nearness of the train was such that a reasonably prudent person situated as was the plaintiff should have known that an attempt to proceed over the crossing- ahead of the train was hazardous.”

The appellant then follows these requested special issues and instructions with its requested Special Issue No. Seventeen A, which inquires of the jury whether, from a preponderance of the evidence, the failure of the deceased to stop his vehicle within fifty feet, but not less than fifteen feet, from the nearest rail of the track upon which the train was approaching was the proximate cause of the collision. These requested special issues and instructions were in the language of special issues suggested by the now Chief Justice Calvert of the Supreme Court in his article on special issues under the statute herein involved in 34 Texas Law Review 971.

The court, in Special Issues Nos. 61 and 62, submitted the requested Special Issues Nos. Sixteen and Seventeen in the exact language requested, and the jury answered them in the affirmative. But the court then followed these special issues with Special Issues Nos. 65 and 66, reading as follows:

"SPECIAL ISSUE NO. 65
“Do you find from a preponderance of the evidence that the train emitted an audible signal within approximately fifteen hundred feet before Carl Davis reached a point fifteen feet from the nearest rail of the track upon which the train was approaching?
“SPECIAL ISSUE NO. 66
“Do you find from a preponderance of the evidence that a clearly visible electric or mechanical signal device gave warning of the immediate approach of the defendant’s train immediately prior to the collision in question?

The trial court then gave the following instruction and special issue:

“If you have answered Special Issues No. 61, 62 65 and 66 ‘Yes’, and only in that event, then answer Special Issue No. 67.
"SPECIAL ISSUE NO. 67
“Do you find from a preponderance of the evidence that the failure of Carl Davis to stop his vehicle within fifty feet, but not less than fifteen feet from the nearest rail of the track upon which the train was approaching, was a proximate cause of the collision ?”

The jury answered Special Issues Nos. 65 and 66 in the negative, and thus was prohibited, under the court’s instruction, from answering Special Issue No. 67. Appellant timely objected and excepted to this grouping of special issues in the court’s charge and the court’s instruction to the jury making the answer of Special Issue No. 67 conditional upon an affirmative answer to Special Issues Nos. 61, 62, 65 and 66, as an improper grouping of issues relating to two separate and distinct statutory theories of defense and as imposing upon the appellant a far greater burden in establishing its defense predicated upon its pleadings and its requested special issues, as raised by the evidence, than required by either statutory or case law in Texas. Our view of the statute (Art. 6701d, Sec. 86), is that it intends to set out several distinct and separate conditions under each of which the duty arises for the driver of a motor vehicle approaching a railroad grade crossing to stop within the prescribed distance from the nearest rail. One of these conditions, subsection (d), is when an approaching train is plainly visible and is in hazardous proximity to such crossing. The existence of this condition was submitted to the jury in Special Issues Nos. 61 and 62. Another, unrelated, condition requiring the stop, i. e. subsection (c), is when a railroad engine approaching within approximately fifteen hundred (1500) feet of the highway crossing emits a signal audible from such distance and such engine by reason of its speed or nearness to such crossing is an immediate hazard. The existence of this condition was probably intended to be submitted in Special Issue No. 65. A third, unrelated, condition requiring the stop, i. e. subsection (a), is when a clearly visible electric or mechanical signal device gives warning of the immediate approach of a train. The existence of this condition is submitted in Special Issue No. 66. The jury answered that neither of the conditions referred to in Special Issues Nos. 65 and 66 existed under the evidence. In order to establish the existence of any •one of these three conditions it is not necessary also to establish the existence of either of the other two. Appellees, in their second •counter-point in reply to appellant’s first, second, third and fourth propositions, makes "the assertion that “all statutory conditions must exist under Article 6701-D, Section 86, Revised Civil Statutes of Texas, before a •duty to stop exists.” This statement is unquestionably true when it is applied to subsection (d) of Section 86, Article 6701d, to which it should refer. In support of their assertion appellees cite from the Supreme Court case of Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, in which the then Justice Calvert, writing the majority opinion, sets •out the following:

“Further analyzing the statute, it appears obvious that the duties imposed ■on the motorist are not absolute but are conditional. Neither duty comes into existence unless and until these •three conditions exist: (1) A train must be ‘approaching’ the crossing; (2) the approaching train must be ■‘plainly visible’, and (3) the train must he 'in hazardous proximity’ to the •crossing. Before either duty c,.., be said to have been absolute in a particular case so as to form the basis of an instructed verdict all three conditions must be conclusively established by the evidence.”

From the quoted language appellees infer •the following:

“In the McFerrin case, the crossing apparently did not involve signal lights but since signal lights were involved in this case, a fourth condition must be imposed before the duty to stop exists because obviously the Court could not give more effect to one section of the statute than to others. Since the jury found that the lights were not working and that no audible signal had been emitted, the defendant failed to secure the findings required of it before a duty to stop existed upon the part of Davis.”

However, in the McFerrin case the Supreme Court, in using the words “duties imposed on the motorist” by the statute is referring to the first paragraph of Section 86, and the duties imposed are the duty to stop and the duty not to proceed until it can be done in safety. The court then points out that these duties are conditional, under subsection (d), upon the co-existence of the three circumstances enumerated by the court. The quoted paragraph from the cited case is not authority for the proposition that more than one subsection of the statute must be conclusively established by the evidence in order to give rise to the duties to stop and not to proceed.

But the appellees insist that since the jury found, on abundant evidence, that the signal lights were not working, there was no duty to stop upon the part of Davis. They cite the per curiam opinion of this court in the case of Texas & Pacific Railway Company v. Moore, Tex.Civ.App., 329 S.W.2d 293 (1959, Ref. N.R.E.). That case imposes a duty to stop under certain circumstances, not by virtue of the statute, but under the common law doctrine of the reasonably prudent man. The case states:

“We have also given serious consideration to appellee’s counter-point to the effect that appellee was. not required to stop where crossing signal devices indicated clear crossing., And we say, without passing on this question, that it is our view that the signals employed here were capable, when operating, of giving but one command, and that would be a command to stop. The signals .did not operate, and thus did not affirmatively direct traffic to proceed. For this reason we believe that the test in such cases should he what a reasonably prudent man would do under the same or similar circumstances before undertaking to cross a railroad grade crossing obviously so equipped, but where no command to stop has been given.” (Emphasis supplied).

But in any event, the appellant was proceeding under the provisions of-the statute in attempting to establish a defense based upon the wording of Sec. 86, subsection (d), and was entitled to have each element of said defense submitted to the jury in a group, distinctly and separately, (such as suggested here in Requested Special Issues Nos. Sixteen, Seventeen and Seventeen A, and as embodied in Special Issues Nos. 61, 62 and 67) without intermingling with other extraneous issues such as contained herein in Special Issues Nos. 65 and 66. The Supreme Court, in Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517, in a decision followed so frequently that citation of cases is prohibitive, sets out the following duties of the trial court in submitting issues to the jury: First, to submit all the controverted fact issues made by the pleadings; second, to submit each issue distinctly and separately, avoiding all intermingling; and, third, to give such explanation and definition of legal terms as shall be necessary to enable the jury to answer each issue. The court further states that:

“Each group of facts pleaded by defendant in error, which, standing alone, would, if proven, constitute a complete defense to plaintiff in error’s suit, presented an issue. It was the statutory right of defendant in error to have the issue presented by each complete plea submitted separately to the jury, just as plaintiff in error had the right to have submitted each issue, entitling her to recover, which she pleaded and proved. The court submitted separately, as the statute required, each group of facts relied on by plaintiff in error, under her pleadings and the evidence, to constitute negligence on the part of defendant in error. The court, over the objection of defendant in error, refused to submit separately each group of facts relied on by defendant in error, under its pleadings and the evidence, to constitute contributory negligence on the part of Alexander Fox.”

See also McDonald, Texas Civil Practice,. Sec. 12.10-E. Affirmative Submission of Defensive Issues, and Sec. 12.18 — (IV) Multifarious Issues; Rules 277 and 279, Texas Rules of Civil Procedure.

Based upon the foregoing, we feel constrained to sustain appellant’s first, second' and fourth propositions.

In its third proposition appellant cites error on the part of the court in overruling-appellant’s motion for judgment since the jury had found all essential facts in support of a complete defense on the part of appellant. We have seen that the jury, in-answer to Special Issues Nos. 61 and 62,. found that the train was plainly visible and in hazardous proximity to the crossing-before the deceased reached a point fifteen-feet from the near rail of the track upon which the train.was approaching, so that a reasonably prudent person, in the exercise of ordinary care should have seen the train and realized that an attempt to proceed over the crossing ahead of the train was hazardous. It was uncontested that the deceased did not stop. The proximate cause issue, as conditioned by the court, was not answered, but the appellant contends that the deceased’s failure to stop was, as a matter of law, a proximate cause of the collision, and that the court should have so held. We are cited to the case of Lackey v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 225 S.W.2d 630 (1949; N.W.H.) which holds:

“Our conclusion from the undisputed evidence is that the approaching engine was plainly visible to appellant and was in hazardous proximity to the crossing as appellant approached it, and appellant’s failure to stop not less than 15 feet from the nearest rail of the track being used by the engine and his failure to wait until he could safely proceed was a proximate cause of the collision and its consequences.”

In Texas & N. O. R. Co. v. Stewart, Tex.Civ.App., 248 S.W.2d 177 (1952; Ref. N.R.E.), also cited, the court bases its finding of negligence and proximate cause on a violation of the statute, Art. 6701d, as well as other evidence in the case. The court recited that:

“In Texas contributory negligence and proximate cause are questions of fact to be decided by the jury except in the following respects: (a) when they consist of violation of the law; (b) or the circumstances are such that in the opinion of the court reasonable minds could not arrive at different conclusions.” (Citing cases).

The court sets out provisions of the statute under Section 86 and then points out that Section 143(a) of the act makes the violation of any provisions of the act a penal ■offense, and concludes:

“ * * * Therefore, under the undisputed evidence and under the provisions of the statute last above mentioned, deceased was guilty of negligence as a matter of law when he failed to bring his truck to a stop within fifty feet and not less than fifteen feet of the nearest rail of the railroad. Needless to say that such conduct was negligence per se and that it proximately caused the collision and resulting injuries and damages.”

See also Muniz v. Panhandle & Santa Fe Railway Company, Tex.Civ.App., 285 S.W.2d 809 (1955; Ref. N.R.E.).

Appellees, in their Counter-point No. 3 to appellant’s first four propositions, urge, in avoidance of the holdings in the above-cited cases, that since “the jury in this case found that the failure to stop was no't negligence and was not the proximate cause of the collision * * * the doctrine of excusable neglect controls.” They refer to Special Issues Nos. 69 and 70, and the jury’s answers thereto. Special Issue No. 69 inquired:

“Do you find from a preponderance of the evidence that Carl Davis failed to use ordinary care in failing to stop at the crossing in question ?
“By the term 'ordinary care’ as used herein is meant that degree of care as would be exercised by a person of ordinary prudence under the same or similar circumstances.”

To which the jury answered: “He did not fail.” Special Issue No. 70 inquired:

“Do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of the collision ?”

To which the jury answered in the negative. The appellees then refer to the testimony of several witnesses at the trial-One witness testified to the probable stopping distance of the truck involved when travelling at various speeds. Other testimony related to the presence or absence of a whistle or bell sounding on the engine just before the collision, and as to whether mechanical flashing signals were operating at the crossing, the speed of the train, skid marks laid down by the tires of the truck, and related matters. We presume, although it is not clear, that the references to the testimony were intended to show that, although the approaching train of appellant may have been plainly visible to deceased and in hazardous proximity to the crossing, it did not become so in time for the deceased to have stopped in compliance with the statute. Appellees quote from the article written by Justice Calvert in 34 Texas Law Review, where, at page 978, he recognizes that impossibility of complying with the statute might arise. Ap-pellees then cite and quote from various cases, including Cunningham v. Suggs, Tex.Civ.App., 340 S.W.2d 369; Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892; Booker v. Baker, Tex.Civ.App., 306 S.W.2d 767; Craker v. City Transportation Company of Dallas, Tex.Civ.App., 316 S.W.2d 447; Warren Petroleum Co. v. Thomasson, 268 F.2d 5. In the Phoenix Refining Co. v. Powell case (supra) certain principles governing the subject are set out:

“1. A violation of a penal statute which contains an appropriate standard for determining civil liability, constitutes negligence as a matter of law.
“2. This rule is not inexorable. The party violating the statute may assume the burden of going forward with the evidence and raise an issue as to an excusable violation.
“3. If said party bring forward sufficient evidence to raise the issue (and this is a preliminary matter for decision of the trial court), then the issue of negligence determined by the reasonably prudent man standard should be submitted.
“4. The burden of proof upon this issue rests with the party asserting negligence, for upon him rests the burden of proof as distinguished from the burden of going forward with the evidence.”

Justice Calvert, in his Law Review article heretofore referred to, has the following to say:

“ * * * While the appellate courts of this state seem not to have considered the matter, there is some authority and reason for holding that violation of a statute is excusable, and therefore is not negligence, if one similarly situated and exercising ordinary care could not have complied with the statute.”

He then states that should the courts adopt the view that impossibility of compliance with the statute because of lack of time ip which to do so excuses a failure to stop, and the pleadings and evidence raise the question, it should be submitted to the jury by additional special issues, the form of which he suggests. We do adopt this view, and feel that this case is appropriate for further exploration in this area.

We have already indicated, by sustaining appellant’s first, second and fourth propositions, that this case must be reversed. We now overrule appellant’s third proposition, that the refusal to grant appellant’s motion for judgment was error. However, we remand this cause to the trial court for further development of the matter of impossibility of compliance with the statute. If, upon a new trial hereof, the pleadings and the evidence raise the question of excusable negligence on the part of the deceased (otherwise non-negligent) in failing to comply with Article 6701d, we hold that this issue should be submitted to the jury under appropriate charges and instructions, in place of Special Issues Nos. 69 and 70, as submitted herein. Furthermore, while we do not pass on any possible prejudice which might have arisen from the form of Special Issue No. 4, which' inquires whether the signal lights of the appellant railway company at the crossing in question were operating at the time of the collision, we feel that, in the event of a new trial of this cause, any possible error could be avoided by acceding to the suggestion in appellant’s fifth proposition that the condition of the signal lights should have been limited to the view from the south side of the crossing — the side from which the crossing was being approached by the deceased.

This case was submitted to the jury on seventy special issues. Upon a new trial it may become evident that certain of these issues may be eliminated or combined, thus simplifying the task of the jury.

Reversed and remanded.


text:
    ANGELINA COUNTY, Texas, Appellant, v. Wilbur KENT, Appellee.
    No. 6579.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 10, 1963.

      Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.
    Ward Burke, Diboll, for appellee.
   McNEILL, Justice.

This is an action by Kent against Angelina County for architectural fees claimed to-have been earned under a written contract made between the parties. The petition' contained additional and alternative counts-alleging acceptance of Kent’s work and praying for recovery upon quantum meruit.

The County pleaded in answer several defenses — all of which are represented by points hereinafter set forth and discussed. They will therefore not be listed here. After trial to jury, the court granted Kent’s motion to disregard certain of its findings, and rendered judgment in favor of Kent.

'The jury found in answer to special' issue No. 2 that the parties did not reasonably expect Kent’s fee, for preparing the final plans, was to be paid out of the County’s current revenue for the year 1958. The-County’s first point is, in view of such finding, that this obligation was a “debt”. It contends this debt was invalid under the provisions of Sec. 7 of Article 11 of our State Constitution, Vernon’s Ann.St., because no provision was made by the County, at the time of the creation of the debt, for levying and collecting a sufficient tax to pay the interest thereon, and no provision was-made for a sinking fund for its retirement. The Supreme Court in McNeal (McNeill) v. City of Waco, 89 Tex. 83, 33 S.W. 322, held the provisions of this section do not apply “to that class of pecuniary obligations in good faith intended to be, and lawfully, payable out of either the current revenues for the year of the contract or any other fund within the immediate control of the corporation.” 33 S.W. 323, 324. The jury in answer to Issue No. 2 found that the contracting parties did not reasonably expect Kent’s fees to he paid out of the current revenue for the year 1958, the year of contract, hut in answer to Issue No. 3 it was found that they reasonably expected that the fees would be paid out of funds then under the immediate control of the Commissioners Court of the County. No attack is made upon this finding; it, therefore, must be regarded as conclusive upon the parties. Fidelity & Cas. Co. v. Maryland Cas. Co., Tex.Civ.App., 151 S.W.2d 230.

In addition, the record indicates there were at the date of the contract, May 12, 1958, available funds in the county hospital budget for the year amounts substantially more than sufficient to take care of the debt. This, it seems to us, is sufficient proof on this phase of the case to sustain the trial court’s judgment in view of the auditing and approval made of its resolution approving his work and claim passed on December 30, 1958. Because a sufficient showing of legality has been made, it was incumbent upon the County to prove the contrary, which we think it has failed to do. City of Belton v. Harris Trust & Savings Bank, (Tex.Com.App.) 283 S.W. 164; Rains v. Mercantile Nat. Bank, 144 Tex. 466, 191 S.W.2d 850; Hidalgo County Drainage Dist. No. 1 v. Creath, 68 F.2d 119 (5th Cir.); Austin Bros. v. Patton (Tex.Com.App.) 288 S.W. 182, 190.

That, as it turned out, the architect’s fee was not paid out of such funds does not make the obligation void. Colonial Trust Co. v. Hill County, 294 S.W. 516 (Tex.Com.App.) (holding expressly approved); City of Cleburne v. Gutta Percha & Rubber Mfg. Co., Tex.Civ.App., 127 S.W. 1072; Clay Bldg. Material Co. v. City of Wink, Tex.Civ.App., 141 S.W.2d 1040.

The County’s second point is that the judgment should not stand because no provision was made in the 1958 budget for payment of an architect’s fees. To sustain this point the following portion of Art. 689a-ll is quoted:

“[T]he budget, as approved by the Court shall be filed with the Clerk of the County Court, and taxes levied only in accordance therewith, and no expenditure of the funds of the county shall thereafter be made except in strict compliance with the budget as adopted by the Court.”

The budget for 1958 was made up and approved in the fall of 1957. The written contract employing Kent to prepare plans and specifications for improvements upon and remodeling the county hospital was made May 12, 1958. No separate item for architectural work was placed in the original budget made in 1957, nor was the budget later amended therefor. No case is cited where failure to expressly budget such architectural fees would under Art. 68.9a-ll make a contract therefor invalid. The question would seem to be whether this expense could reasonably be classed as one properly belonging to one or more of the three budgetary items for the county hospital as “permanent improvements”, “miscellaneous” and “permanent improvements-miscellaneous”. Involved in the year 1958 was the desire of the County to remodel or improve its hospital facilities. At or about the time Kent was employed the County contemplated borrowing some $150,000.00 from the Hill-Burton Funds of the Texas State Department of Health for hospital improvements and needed some preliminary plans to accompany the application for loan. These Kent prepared. Later in the year however Kent prepared other final plans and specifications which were used as a basis for a county-wide election to issue bonds for hospital improvements in amount of $350,000.00, called by the Commissioners Court on December 30, 1958. We are of the opinion that the employment of an architect to aid and guide the County in its efforts to improve its hospital facilities is an expense reasonably within the items of the County Budget listed above. See Tackett v. Middleton (Tex.Com.App.) 280 S.W. 563, 44 A.L.R. 1143.

The County next says that the written contract by which it employed Kent to prepare plans and specifications for hospital improvements was ambiguous. And it says the jury in answer to Issue 11 having found that it was agreed between Kent and the County that he would design plans for improvement of the county hospital which could be constructed for a sum of not more than $300,000.00, and the lowest bid at the only holding of bids was $305,410.00, Kent breached his contract and may not recover. Kent prepared this contract. Paragraph 13 thereof reads in pertinent part as follows:

“13. The Owner has in mind spending $150,00 of its own funds and to apply for $150,000 of Hill Burton Funds from the Texas State I partment of Health. It is planned that the Owner will instruct the Architect to proceed with Final Working Drawings and Specifications for a building to cost approximately $300,000 prior to final approval of Hill Burton Funds for this proj ect.”

The County says that this language indicates that $300,000.00 was all that the County would have for the hospital improvements — that this in effect, is a limitation— “an exact sum which is the maximum of $300,000.00 expected to be available for use in the construction”. And since the architect undertook to draw'plans for improvements to cost not more than $300,000.00 he breached his contract and may not recover —Citing Bueche v. Eickenroht, Tex.Civ.App., 220 S.W.2d 911, and other cases cited and relied upon in that case. But we think the phrase, the owner “has in mind spending $150,000.00 of its own funds” cannot be said to be an absolute limitation on said amount. The language “has in mind” means “is thinking of”, “contemplates”, and is clearly not indicative of crystallization but stands closer to the meaning of approximation. Such language cannot be reasonably said to fix a definite maximum. Following that language is the sentence providing that the architect will proceed with final Working Drawings and Specifications for a building to cost “approximately” $300,000.-00. This contract is not ambiguous in the respect discussed and the trial judge correctly disregarded the jury’s answer to Issue No. 11. Smith v. Dickey, 74 Tex. 61, 11 S.W. 1049; Murphy v. Dilworth, 137 Tex. 32, 151 S.W.2d 1004; Republic Nat. Life Ins. Co. v. Spillars, Tex., 368 S.W.2d 92(6).

Moreover, after the bids wére in and it was discovered the lowest bid was that of Temple Associates in the sum of $305,410.00 the Commissioners Court authorized Kent and representatives of Temple Associates to arrive at a method of reducing the cost of the building to less than $300,000.00. As a result, certain items in the plans and specifications were changed with approval of Temple Associates so that the cost of the building would have been $298,038.00, which was promptly reported to the court. The third point is overruled.

The fourth point complains of the Court’s action in rendering judgment for Kent upon a quantum meruit basis for $13,900.00. We cannot tell whether the judgment is upon such basis or not. Since we have held that Kent may recover upon his express contract the recovery upon quantum meruit to the extent of $13,400.00 would be improper but not material error, for calculated on either theory it would be the same. The Commissioners Court had on December 30, 1958, audited and ordered paid the fee for $13,500.00. (On the same day the County paid $100.00 on this item.) The jury found in answer to Issue 6 that as of December 30, 1958, the usual, reasonable and customary compensation for all work done by Kent for the County was $13,500.00. This figure, therefore, is acceptable whether on contract or quantum meruit. The record is susceptible to the construction that the County requested and obtained additional service from him for which no special contract was made. The court submitted Issue No. 7, inquiring- what was the usual, reasonable and customary-compensation for all work done by Kent for the County as of February 27, 1959, to which the jury replied $14,000.00. In rendering the judgment for $14,000.00 for Kent the court may have taken this figure and subtracted the $100.00 paid on December 30, 1958, for he rendered judgment for Kent for $13,900.00. Or, the court could have taken the $13,500.00 upon the contract as approved by the Commissioners Court on December 30, 1958, subtracted the $100.00 therefrom and taking the sum of $13,500.00 found by the jury in answer to Issue 6 (on quantum meruit) deducted this sum from $14,000.00, the reasonable value of all the services rendered through February 27, 1959 (quantum meruit) and arrived at the reasonable value of the services rendered in 1959 as the sum of $500.00 — thus adding $13,400.00 to $500.00, making $13,900.00. The judgment is susceptible to this latter construction. If we are mistaken that Kent did other work upon which specific terms were not set, the judgment for $13,900.00 can be upheld upon the strength of his written contract which called for payment to him of 41/2% upon an alternative bid of $314,070.00 made by Temple Associates.

The fifth point asserts that since no official action was taken by the Commissioners Court instructing Kent to proceed with the final plans, and the Court acts only as a body and through its minutes, Kent was entitled to recover only for the sum of $2,000.00 representing his work on the Hill-Burton Fund application. The answer to this is that what the Commissioners Court could approve in the first instance, it may ratify, and its order and resolution of December 30th, 1958, clearly ratified the work he had done to that time. Cameron County v. Fox, Tex.Com.App., 61 S.W.2d 483 (holding expressly approved) ; Rodgers v. County of Taylor, Tex.Civ.App., 368 S.W.2d 794. The County on the same day ordered a bond election for hospital improvements based on Kent’s final plans and specifications. The point urged is without merit.

The County’s sixth and last point is that since no claim in excess of $13,400.00 was presented to the Commissioners Court judgment in excess of that amount is improper and violates Art. 1573, V.A.T.S. We think, however, that claim for that amount, in fact for $14,133.15, was presented to the Court for approval by Kent’s letter of March 20, 1959. See Statement of Facts, pp. 758, 637, 638.

We should comment on another matter. After verdict, Kent made his motion to disregard certain findings of the jury. Among these findings were the following: (Issue 14) the Commissioners Court did not on December 30, 1958, approve the action of the County Judge in making the contract of May 12, 1958, with Kent; (Issue 17) the Court in approving Kent’s final plans and specifications in December, 1958, did not have knowledge of paragraph 5 of said contract whereby Kent would be entitled to 4y2% of the cost of the project for work to that date; (Issue 18) the Court did not approve the bill for services rendered by Kent in the amount of $13,500.00 at the December 30, 1958, meeting. The trial court sustained the motion to disregard these findings. Although County’s brief has mentioned the findings set forth in this paragraph, it has not urged the trial court erred in setting aside such findings. Nor has any attack been made by point or points, on the trial court’s action disregarding them. We therefore accept the trial court’s action as correct and are bound thereby. 4 Tex.Jur.(2), Sec. 643, pp. 150, 151.

Appellee’s petition includes a prayer for writ of mandamus ordering the Commissioners Court to pay or take the necessary steps to arrange payment of his judgment. The trial court declined to grant this remedy. We are of the same view. A county may in good faith contest claims against it. And it should contest those of doubtful validity. That this is done does not necessarily subject it, upon losing its contest, to the stringent remedy of mandamus. It is assumed that the proper County officials will recognize their duty, when and if the judgment herein approved becomes final, to pay or make prompt arrangements for its legal payment. The action of the trial court denying the writ of mandamus is therefore affirmed. This is done, however, without prejudice to application therefor later, should it appear to be necessary for the collection of the judgment.

Judgment affirmed.