author: WERLEIN, Justice.

text:
    Louis BANKS, Jr., Appellant, v. H. T. TAYLOR, Sr., Appellee.
    No. 14422.
    Court of Civil Appeals of Texas. Houston.
    Oct. 29, 1964.
    Rehearing Denied Nov. 19, 1964.
    Frank B. Brooks, Jr., Austin, for appellant.
    Spiner, Pritchard & Thompson, Clark G. Thompson, Houston, for appellee.
   WERLEIN, Justice.

This suit was brought by appellee, H. T. Taylor, Sr. to establish and confirm his ownership of 1200 shares of the capital stock of Banks Transportation Co., which had been pledged by Louis Banks, Jr., to •secure the payment of his two promissory notes dated December 17, 1959, such stock having been bought by appellee at private ■sale on April 4, 1963 upon default in the payment of said notes. Appellee also sought :to have such stock issued in his name, and to require the receiver previously appointed by the court to prepare and submit a final accounting of his receivership. At the 'conclusion of the trial before a jury, the ■court, upon appellee’s motion for an instructed verdict, granted same and later decreed that the sale of said stock be ratified and confirmed in all things, that Banks Transportation Company issue a new ■certificate or certificates to appellee representing 1200 shares of the Common Stock ■of such company, that the receiver turn over to the new board of directors of Banks Transportation Company all assets and property in his hands, and that the claim ■of the intervenor be denied. Only Louis Banks, Jr. has appealed.

Appellant contends that the trial court erred in rendering an instructed verdict in favor of appellee because there was no evidence and also insufficient evidence to show a valid sale of such pledged stock and because there were fact issues raised with respect to whether the sale was a valid sale •on account of appellee’s failure to give public notice and to seek bidders, and also with respect to whether appellee paid the .amount he bid for the stock. Appellant also claims that the court erred in not rendering an instructed verdict in his favor because appellee failed to prove that he made any effort to get the best possible price for the pledged stock, and because ap-pellee failed to prove a valid sale in that he never paid or gave credit for the amount he bid.

On December 17, 1959, Louis Banks, Jr., executed and delivered a note in the sum of $26,206.53 to appellee as an individual, and another note in the sum of $9,082.11 payable to appellee as agent for the Taylor Lumber Company, which latter note became the property of appellee individually prior to the filing of this suit. Each of such notes was secured by the pledge and collateral assignment of stock certificate No. 1 for 1200 shares of stock in Banks Transportation Company to appellee. Each note contained the following provision:

“In the event of non-payment of this note at maturity, however the same is brought about, the holder hereof is hereby invested with full authority to use, transfer, or sell the said pledged property, or any part thereof, or to cause the same to be done at public or private sale, with or without notice or demand of any sort, at such place and on such terms as the said holder hereof may deem best, and the holder of this note is authorized to purchase said collateral when sold for his own protection and the proceeds of such sale, transfer, or hypothecation shall be applied to the payment of this note, together with all interest, attorney’s fees and costs. The surplus, if any, after payment of this note, together with all charges above stated, shall be paid to the maker of this note, and if the proceeds of the above sale shall not be sufficient to' pay this note, the maker hereof agrees to make good any deficit.”

On March 19, 1963, the attorneys for appellee wrote the said Louis Banks demanding full payment of both notes on or before April 4, 1963, advising that the notes had been turned over to them for collection because of default in the payment thereof. On the same day, said attorneys wrote the following letter to appellant: ■

“This is to notify you that the 1200 shares of common stock of Banks Transportation Company represented by Certificate No. 1, will be sold at 11:00 o’clock A.M. Thursday, April 4th, 1963. This is the stock'you pledged as collateral, securing those two certain promissory notes payable to the order of H. T. Taylor and the Taylor Company in the principal amounts of $26,-206.53 and $9,082.11 respectively, dated December 17th, 1959, which notes H. T. Taylor and the Taylor Company have elected to mature.
“The sale will be held and take place in the Lobby at the Main San Jacinto Street entrance of the Harris County Court House, 301 San- Jacinto Street, Houston, Texas. Either you or such other parties as you may locate may be interested in purchasing such stock at such sale.”

On April 4, 1963, at approximately 11 a. m., appellee and his two attorneys, Charles Pritchard and Clark Thompson, went to the Court House, where one of such individuals read the letter of March 19, 1963 notifying Mr. Banks of the sale, and called for bids, whereupon appellee bid $5,000.00 for the 1200 shares of stock. Such stock was then struck off to appellee. Subsequent to this sale, appellee brought the present suit which was filed April 25, 1963, alleging, among other things, that “On April 4, 1963, said 1200 shares of stock was sold at public auction to the highest bidder for cash before the court house door of Harris County, Texas, and plaintiff purchased such 1200 shares of stock at such sale for $5,-000.00 that being the highest and best bid for the same.” Appellant alleged in his sworn amended answer a general denial, other matters not relevant to the issues upon which appellant relies on this appeal, and that “any purported sale under the terms of these notes allegedly made by this Plaintiff should be set aside and held null and void.” No other allegation of any kind with respect to such sale was made by appellant in his answer or prayer.

It is appellant’s contention that by virtue of such-general denial, validity of the trustee’s sale was put in issue, and that there being no ■ presumption of the validity of such sale, it was necessary for appellee to prove each element of a proper sale. Smith v. Allbright, Tex.Civ.App., 279 S.W. 852, aff’d Tex.Com.App., 288 S.W. 178. The notes gave appellee the option to sell the stock at either a public or a private sale. No notice was given of the sale in question other than that given to appellant. The attorney for appellee testified that he did not “intend whether it be public or private.” It is our view that the sale was a private sale made in a public place. The pledgee was authorized to buy in the stock whether the same was sold at public or private sale. It .being a private sale, it was incumbent upon appellee to show that he exercised at least ordinary care and diligence to obtain the best possible price for the collateral, especially since the sale was made to himself. In King v. D. Sullivan & Co., Tex.Civ.App.1906, 92 S.W. 51, the court said:

“The pledgee of commercial paper who takes it as collateral security holds it as trustee for the pledgor as well as for himself (Byles’ Bills, 177; Randolph, Com. Paper, § 795) in furtherance of the purpose for which the pledge was made, and, though he be expressly authorized by the pledgor to sell and appropriate the proceeds towards the payment of the debt it was pledged to secure, he is nevertheless his trustee, charged in the execution of his trust (as are all trustees) with the utmost good faith towards his cestui que trust. The express power given him by the pledgor to sell makes him the latter’s agent, and, in the execution of the power, though it authorizes him to sell to a member of his firm, his duty as trustee, as well as agent, requires him to exercise, at least, ordinary care and diligence to obtain the best possible price for the collateral; and, if he make such sale, it is incumbent upon him to show that he has exercised such care and diligence, and a fortiori, is this the cáse when the sale is made to a member of his firm. * *

In King v. Boerne State Bank, Tex.Civ. App.1913, 159 S.W. 433, writ ref., which was a suit for conversion of property that had been pledged, the court said:

“The pledgee, though having the power by contract to sell the collateral at private sale without notice to the pledgor, cannot escape the duty resting upon him as a trustee to conduct the sale fairly and in good faith, and in such a way as to subserve not only the rights he has, but also the interest of the pledgor. Colebrook on Collateral Securities, p. 215; 31 Cyc. p. 877(6); King v. D. Sullivan & Co., [Tex.Civ.App.] 92 S.W. 51; Uncle Sam’s Loan Office v. Emery, 49 Tex.Civ.App. 236, 107 S.W. [1155] 1157; Oriental Bank [of New York] v. Western Bank & Trust Co., Tex.Civ.App., 143 S.W. 1176; Gillet v. Bank, 160 N.Y. 549, 55 N.E. 292; [Laclede Nat.] Bank v. Richardson, 156 Mo. 270, 56 S.W. 1117, 79 Am.St.Rep. 528.”

The Supreme Court of Alabama in Coleman v. Solomon, 225 Ala. 407, 143 So. 576, held:

“The burden is upon the mortgagee purchasing at his own sale under a power to show that the sale was fairly and openly made, in strict compliance with the power, and that the price paid was not so clearly and grossly inadequate as to raise a presumption of bad faith.”

The court in Reisenberg v. Hankins, Tex.Civ.App., 258 S.W. 904, error dism., said:

“It is declared that in giving the notice of sale the mortgagee is required to act in a business-like manner, with a view of obtaining as large a price as he reasonably can, with due diligence on his part, and in common fairness to all others interested, and that in any matter left to his discretion there must be a fair and honest exercise of his judgment. Givens v. McCray, 196 Mo. 306, 93 S.W. 374, 113 Am.St.Rep. 736; Meacham v. Steele, 93 Ill. 135. Because sales by mortgagees under powers are much liable to abuse, they are most jealously watched by courts of equity, and upon slight proof of unfair conduct they will be set aside.”

The law is well settled that there is no presumption that a private sale under a power was fairly and openly made. In the instant case the evidence shows that the appellee gave notice to appellant of the time and place where the sale would be conducted. The testimony, however, is un-controverted that neither appellee nor his attorneys made any effort whatever (other than the notice to appellant) to negotiate with anyone with respect to buying the property that had been pledged, or to have anyone bid at the sale. The attorney for the intervenor, Mr. Brooks, had on several occasions prior to the notice of sale talked with appellee with reference to the property and had mentioned the amount of $25,000.00 or $30,000.00, thus indicating that he might be interested in purchasing the property. Notwithstanding this, appellee failed to give Brooks or anyone else, other than appellant, any notice as to the time and place of the sale. In Kolbo v. Blair, Tex.Civ.App.1964, 379 S.W.2d 125, the court used the following language:

“It is his [trustee’s] duty to sell at the highest possible price; if he purchases, his interest would be to purchase at the lowest possible price; as seller and purchaser he is charged with the possibility of an adverse interest In such case the court will examine such sale from its four corners and require the mortgagee to prove by clear and convincing evidence that such sale was fairly and honestly conducted in all respects. The evidence was further undisputed, in fact the trial court specifically found, that the sale was conducted without soliciting or inviting bids of any kind ■ or character of any pe'rson whomsoever.”

■It is true that in the Kolbo'case the mortgagee who elected to sell at private sale, gave no notice of any kind to the mortgagors of the sale, and also that the mortgagees purchased the property at the sale, although the mortgage did not give them any express authority to do so. In the instant case notice was given the mortgagor, but the sale was conducted without soliciting or inviting bids of anyone other than the mortgagor. It is our view that at a private sale such as in the present case, it is the duty of the pledgee to exercise reasonable care and diligence to sell at the highest possible price. In order to do this, it would be necessary for him to make some effort to obtain other parties who might be interested in purchasing the stock at such sale.

In Cole v. Manufacturers Trust Co., 164 Misc. 741, 299 N.Y.S. 418, the court defined the word “sale” as a sale where third parties either bid or are at least given an opportunity to bid and to become purchasers. The court further said that as a trustee the pledgee was duty bound to make every reasonable endeavor to obtain the highest price possible, and not merely the market price. There is no evidence of probative force in the record, other than the notice to appellant, that any effort was made by appellee to obtain the highest possible price for the stock in question. Although appellee testified that he thought there were other bids besides his bid, his testimony was so indefinite and uncertain that little if any credence can be given it. Each of his attorneys who were present testified that he could recall only the one bid of $5,000.00. Neither of the notes shows that $5,000.00 was paid or credited thereon.

The demand for payment of the notes, which was mailed March 19, 1963, shows that the balance of the principal due on the $26,206.53 note was $21,411.33 as of April 4, 1963, and on the $9,082.11 note, $5,514.93. After the sale of April 4, 1963, appellee made an affidavit under date of September 24, 1963 in connection with his motion for a summary judgment, in which he' swore that no payments had been made on either note since September of 1960, and that as of September 24, 1963 the balance of principal due on the larger note was $21,411.33, being the exact amount of the unpaid principal of the note as of April 4, 1963, and on the smaller note the balance of principal was $5,370.67. This indicates that the $5,-000.00 bid made at the sale was not paid or credited on either note prior to September 24, 1963. Moreover, the bill of sale of the stock executed by H. T. Taylor to himself is not dated although the notarial acknowledgment thereon, which bears no notary seal, is dated January 4, 1963, three months before the sale. If the date was in error and it was intended to be January 4, 1964, then such bill of sale was not executed until two days before this case went to trial. It is true that the court in its judgment, without specifically finding that the $5,000.— 00 had been paid, decreed that the $5,000.-00 paid by appellee for the stock be and constitute a $5,000.00 credit against the unpaid balance of the two notes. We find, however, no evidence in the record that the $5,000.00 was paid, other than the acknowledgment of receipt thereof in the undated bill of sale from H. T. Taylor to himself.

We are of the opinion, in view of appellee’s failure to give any notice of the sale other than to appellant, that there is at least a fact issue as to whether appellee exercised ordinary care and diligence to obtain other bidders at the sale and to obtain the highest possible price for the stock. It is also our view that there is at least a fact issue as to whether the amount bid by appellee at the sale was ever paid or credited against the indebtedness in question until the court decreed that the amount be so credited. The determination of such fact issue might have an important evidential bearing upon whether there was a genuine sale of the stock. Moreover, since this suit was not brought on the notes or indebtedness, we fail to see any occasion or ground for the court to decree that the $5,-000.00 be credited thereon.

Appellee has undertaken to distinguish between the instant case and cases in which a deficiency judgment was sought. We. are unable to see any valid distinction insofar as the sale of pledged property is concerned. In either case, it would be in the interest of the mortgagor to have the pledged property bring the largest amount possible upon the sale thereof. The fact that in the instant case no deficiency judgr ment was sought will not prevent appellee from bringing another suit to obtain such judgment. If appellee brought suit to recover a deficiency, he would doubtless claim that the deficiency consisted of the unpaid balance due on the notes, less the sum of $5,000.00 bid at the sale.

Appellant did not plead that the sale was unfair in so many words but he did plead in his sworn answer that any purported sale under the terms of the notes, allegedly made by appellee, should be set aside and held null and void. There was no exception to such pleading. It is our view that the burden was on appellee to establish that a valid sale had been made and that he had legally acquired the stock in question. See Lang v. Harwood, Tex. Civ.App.1940, 145 S.W.2d 945. His whole suit was bottomed on the proposition that he had bought the stock at the trustee’s sale and was the legal owner thereof. He asked the court to compel recognition of such ownership and rights incident thereto. This was done by the court in its judgment decreeing that the sale “be and is in all things ratified and confirmed *, * . * ” Other relief prayed for by appellee and granted in the court’s judgment was necessarily dependent upon the ratification and confirmation by the court of the sale in question. It is our view that there is in the record evidence raising fact issues with respect to the fairness and validity of the sale which made an instructed verdict improper regardless of whether appellant or appellee had the burden of proof on the issue of fairness.

In view of the likelihood of another trial of this case, we consider it proper to add that the determination of whether valid by-laws had ever been, adopted or recognized by the company, and to whom the assets of the corporation should be turned over by the receiver, involves fact issues which, depending upon the evidence, will probably have to be passed upon by the jury. Appellee in his petition in effect sought a determination of such matters. The court by discharging the jury prevented jury findings with respect thereto. In fact, there was insufficient evidence adduced at the trial to warrant submission of such issues. Hence the case was not fully developed and for such reason also, it must be remanded for a new trial. The assessment of the receiver’s fee and his expenses must await final decision. The judgment of the trial court is reversed and the cause remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    CONSOLIDATED UNDERWRITERS, Appellant, v. Melvin L. FOSTER, Appellee.
    No. 78.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 29, 1964.
    Rehearing Denied Nov. 19, 1964.

      Royal H. Brin, Jr., Strasburger, Price, Kelton, Miller & Martin, Dallas, and William H. Kugle, Jr., Athens, for appellant.-
    R. H. Fields, Fields & Fields, Athens, for appellee.
   DUNAGAN, Chief Justice.

This is a Workmen’s Compensation case tried to a jury resulting in a judgment for Melvin L. Foster, Plaintiff in the court below and Appellee here, based on jury verdict for 401 weeks compensation at the maximum rate, with credit for 30 weeks already paid and from such j udgment and the overruling of Defendant’s Amended Motion for a New Trial this appeal has been perfected.

The injuries are alleged to have been sustained by Appellee on or about the 11th day of September, 1962.

Appellant, Consolidated Underwriters, by its first Point of Error, contends the trial court erred in excluding testimony tendered by it concerning the curative or beneficial effects of an operation after liability had been admitted and a tender made before the Industrial Accident Board and demand for examination had been made and acted upon.

While the Claimant’s case was pending before the Industrial Accident Board, the Carrier, Consolidated Underwriters, filed with the Board its demand for a myelogram (myelograph) and surgery stating therein that (1) it admits liability; (2) it had theretofore tendered myelograph and examination to the Claimant and same was refused by Claimant; (3) that it was then making demand to the Board to require an examination of the Claimant; (4) it was tendering operation, if examination and/or myelograph reveals same could or should benefit Claimant without any reservations; (S) it accepts full liability for an operation, including all medical, and within the confines of the Texas Workmen’s Compensation Act, any remaining disability to Claimant after operation is performed; and (6) in the event an operation is performed on Claimant’s back, will bring the Claimant’s compensation up to date and will pay for as long thereafter, within the confines of the Act, as the operating doctor feels the Claimant needs to remain off from work. The Carrier further in said demand agreed to any recognized neuro-surgeon or orthopedic selected by the Board to perform the myelo-gram (myelograph), however, recommending Dr. K. S. Axelsen, a neuro-surgeon of Tyler, Texas, for the consideration of the Board in making its selection.

The Board appointed Dr. Milton Freiberg of Tyler, Texas, who specializes in orthopedic surgery. Upon completion of the examination of the Claimant pursuant to the request of the Board, he made his written report to it wherein he stated he found no indications for surgery.

On the trial of this case in the District Court of Henderson County during the cross-examination of Plaintiff’s witness, Dr. Sigler, the Defendant attempted to elicit testimony concerning the curative or beneficial effects of an operation on Claimant. At this stage of the proceedings, the court granted Claimant’s Motion In Limine to instruct the Carrier’s counsel not to mention, allude to, or in any way make reference to, directly or indirectly, either in the form of questions or statements, in the presence of a jury, anything with reference to the curative or beneficial effects that surgery might have in this case.

All the requirements as set forth in Hardware Mutual Casualty Company v. Courtney, Tex., 363 S.W.2d 427, and American General Insurance Company v. Quinn, Tex. Civ.App., 277 S.W.2d 223, concerning the admissibility of the proffered testimony were met in the instant case. However, we do not feel that those cases are controlling here for the reasons hereinafter stated.

The holdings in the following cases are not directly in point here: Texas Employers’ Insurance Ass’n. v, Kubiak, (Tex.Civ.App., 1955) 276 S.W.2d 909, writ ref., n. r. e.; American General Insurance Company v. Quinn, supra; Texas Employers’ Insurance Association v. Curry, (Tex.Civ.App., 1961) 347 S.W.2d 334, writ ref.; Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521; Hardware Mutual Casualty Company v. Courtney, supra. In those cases the insurance company did not admit liability, did not tender an operation, nor make a demand in writing therefor while the claims were pending before the Industrial Accident Board. Texas Employers’ Ins. Ass’n. v. Ellis, (Tex.Civ.App., 1963) 365 S.W.2d 676, writ ref., n. r. e. In the case at bar, the insurer admitted liability, tendered the operation, and made a demand therefor in writing. The Board ordered a medical examination made and as a result thereof the Board was advised that an operation was not indicated. The Board denied the demand for operation and the Claimant was not put to the election to reject or refuse an operation.

Section 12b of Art. 8306, R.C.S., Hernia, reads in part:

“ * * * In case the injured employé refuses to submit to the operation, the board shall immediately order a medical examination of such employé by a physician or physicians of its own selection at a time and place to be by them named, at which examination the employé and the association, or either of them, shall have the right to have his or their physician present. The physician or physicians so selected shall make to the board a written report, signed and sworn to, setting forth the facts developed at such examination and giving his or their opinion as to the advisability or non-advisability of an operation. * * * ”

Section 12e of Art. 8306, R.C.S., reads in part:

"In all cases where liability for compensation exists for an injury sustained by an employé in the course of his employment and a surgical operation for such injury will effect a cure of the em-ployé or will materially and beneficially improve his condition, the association or the employé may demand that a surgical operation be had upon the em-ployé as herein provided, * * *. In case either of said parties demands in writing to the board such operation, the board shall immediately order a medical examination of the employé in the same manner as is provided for in the section of this law relating to' hernia. If it be shown by the examination, report of facts and opinions of experts, all reduced to writing and filed with the board, that such operation is advisable and will relieve the condition of the .injured employé or will materially benefit him, the board shall so. state in writing and upon unanimous order of said board in writing, a copy of which, shall be delivered to the employé and the association, shall direct the employé at a time and place therein stated to submit himself to an operation for said injury. If the board should find that said operation is not advisable, then the employé shall continue to be compensated for his incapacity under the general provisions of this law. If the board shall unanimously find and so state in writing that said operation is advisable, it shall make its order to that effect, stating the time and place when and where such operation is to be performed, naming the physicians therein who shall perform said operation, * * *.”

Section 12e of Art. 8306, Vernon’s Tex.Civ.St., speaks in terms of a demand in writing for surgery. When a demand in writing has been made, then it is the duty of the Board to order a medical examination of the Claimant. If the Board unanimously finds surgery is desirable, it may direct the Claimant to submit to an operation. Hardware Mutual Casualty Co. v. Courtney, supra.

In the instant case the Board ordered a medical examination of the Claimant which was made by a doctor of its choosing and said doctor reported to the Board that he did not find any indications for surgery, and pursuant thereto the Board denied the demand for surgery.

Several doctors had examined and treated Foster for his injuries, but none recommended surgery while the. case was pending before the Board, or at any time thereafter, so far as the record reflects.

The question of the operation has to be decided while the case is pending before the Industrial Accident Board. Texas Employers’ Ins. Ass’n v. Ellis, supra.

The statute makes it the duty of the Board to make specific findings when demand for surgery is made. The insurer complied with the steps required of it to invoke the action of the Board, but the Board did not say in writing to the Claimant: We think an operation is advisable, is not unsafe, and you are directed to submit to an operation.. Since that was not done, as clearly required by the statute, the Claimant was not put to an election to have surgery or not. Thus, Foster was never called upon by the Board either to accept or to reject an operation under any of the cited provisions of Art. 8306, and consequently he never refused an operation. Garcia v. Travelers Insurance Company, (Sup.Ct., 1963) 365 S.W.2d 916.

The Appellant offered testimony of Dr. Howard Sigler on his Bill of Exception taken to the court’s ruling. The testimony of Dr. Sigler offered on the Bill of Exception, in effect, was that at that time he did not know whether he (Foster) had an op-eratable herniated disc and did not know whether an operation for such injury would help him at all. The testimony of Dr. Sig-ler’s that would be of any aid to the Appellant is speculative and based on probability. The Supreme Court in the case of Truck Insurance Exchange v. Seelbach, supra, said:

“ * * * The benefits from surgery are to be determined not by evidence based on probabilities but rather on what has actually happened. If an operation had been performed under Board supervision the outcome of that operation with its effects on this man would be measured without r.esort to probabilities.
“The law compels the employee to undergo the operation if tendered and deemed advisable by the Board in order that the effect of the operation may be determined with certainty or suffer the penalties provided. It does not compel him to submit to speculation or professional opinion as to the probable outcome of an operation or suffer the penalty.”

The court in Trinity Universal Insurance Company v. Wineinger, (Tex.Civ.App., 1964) 380 S.W.2d 759, writ ref., in dealing with the identical question in a Workmen’s Compensation case sustained the action of the trial court in excluding such testimony,

“ * * * because (a) the carrier’s demand for surgery under Art. 8306, Sec. 12e, Vernon’s Ann.Civ.Stat, qual-fied its assumption of responsibility by a restriction to surgery to be administered by ‘a physician of the carrier’s choice’; and (b) the physician’s medical report submitted by the carrier to the Industrial Accident Board in connection with the demand stated the doctor had examined claimant and he did ‘not feel that he is a candidate for any surgical procedure.’ ”, citing as its authority the Courtney case.

In the case at bar, the Carrier tendered an operation conditioned upon an examination of the Qaimant revealing that the same could or should benefit the Claimant’s condition. The results of the medical examination ordered by the Board disclosed that no surgery was indicated. Therefore, the conditions under’which the Carrier tendered the operation were shown not to exist. Moreover, the medical report submitted, to the Board by the Carrier itself revealed the inadvisability of surgery. Relevant portions of the Carrier’s medical report were as follows:

“X-ray examination of the skull was within normal limits. X-ray examination of the thoracic and lumbar spine revealed a partially compressed T-12 vertebrae which was in good alignment and appeared stable and well healed.
“IMPRESSION: I find no evidence of disability at the present time. I believe the patient is fully capable of performing his usual duties.”

Certainly it cannot be said the findings contained in the medical report the Carrier furnished to the Board would indicate advisability for surgery. In view of the above stated facts, this case is closely analogous to the Wineiijger case and the principles stated therein are likewise applicable here.

In-the case of Truck Insurance Exchange v. Seelbach, supra, the Carrier urged the contention that conceding the Kubiak and Quinn cases are correctly decided; nevertheless in the case then under consideration where no operation was suggested or recommended during the Board proceedings and the need thereof having developed later, the testimony should be admitted as an éx-ception to the rule. The Supreme Court in an opinion written by Justice Culver re-j ected this theory.

We think the facts in the Seelbach case are more favorable to the Carrier than the facts in the instant case.

Doctors Sigler, Axelsen, Freiberg, Holt and Henderson, testified during the course of the trial. Doctors Freiberg, Axelsen and Holt were called by the Appellant and Doctors Sigler and Henderson were called by the Appellee.

Dr. Axelsen testified:

“ * * *' in my opinion he is able to work.; that he is mechanically and 'functionally sound, and when-all of this is finished and all this business we are going through now is over and done with, I think he will be able to go out and work perfectly well.”

Dr. Freiberg testified:

“Q Did you find anything Doctor, that was significant to you and was suggestive even of a disc injury?
“A No, sir.”

Dr. Holt, in substance, concurred with Doctors Axelsen and Freiberg. He testified that the injured vertebrae had healed, and in his opinion it had healed by December 1, 1962; he released him to return to work as of April 8,' 1963. ' ‘

It was the Appellant’s position in the trial court that the Appellee’s injuries had healed and he was. capable of performing his usual work as of April 8, 1963.

There was no evidence before the Board that an operation would “effect a cure” or “materially and beneficially improve” Claimant’s condition. In fact, thg evidence disclosed that an operation was inadvisable. Accordingly, the Board did not order an operation and, of course, under such circumstances, the Claimant was not put to an election either to accept or reject the same. This being the state of the record, evidence concerning the curative or-beneficial effects of surgery was inadmissible over timely objection. Trinity Universal Insurance Company v. Wineinger, supra, and Hardware Mutual Casualty Company v. Courtney, supra.

Further, the Bill of Exception does not show that Appellant offered testimony to the effect that an operation on the Claimant would have had a curative or beneficial effect. For all of these reasons, the point does not reflect error.

The Appellant in its second Point contends that the trial court erred in preventing Defendant from showing that Dr. Freiberg examined Plaintiff at the instance of the Industrial Accident Board.

During the course of the trial, the Appel-lee by and through his attorney of record, and before Dr. Freiberg was put on the stand by the Appellant’s lawyers, as a witness for the Appellant, and outside the presence of the jury filed his Motion In Limine requesting the court to restrict Appellant and its attorney from asking any question or eliciting any answer from Dr. Freiberg to the effect that his examination of the Plaintiff was made by the order of the Industrial Accident Board. The court sustained Ap-pellee’s Motion In Limine. Appellant excepted to the court’s ruling and stated to the court:

“In view of the Court’s action, having sustained Counsel for Plaintiff’s Motion to instruct Defendant’s counsel to instruct Dr. Frieberg in a certain manner, Defendant moves the Court at this time to instruct counsel for the Plaintiff not to question Dr. Frieberg as to whether he is an insurance company doctor, in an attempt to show to the jury the doctor is an insurance company doctor, by the reason of the fact that we have been precluded by the action of the Court from showing that Dr. Frieberg did not examine the plaintiff at the request of the insurance company.” The Court in ruling upon this Motion stated:
“That motion will be granted in part. The doctor will not be asked as to whether or not he is representing the insurance company and the rest of it will be denied. They may ask him who is paying him to come up here today and not that direct question.”

The jury was retired and Appellant perfected his Bill of Exception by offering the testimony of Dr. Freiberg that it had been precluded from offering by virtue of the court’s ruling.

“Q Dr. Frieberg, does your file that you have with you disclose why this man came to see you in the first place ?
“A Yes, sir.
“Q Will you please tell'us the cahse . for his being at your office?
“A The Industrial Accident Board-asked me to see him.
“Q The Industrial Accident Board from the State of Texas?
“A Yes, sir, The State of Texas.
“Q Did you receive a letter from the Industrial Accident Board?
“A Yes, sir, I did.
“Q What was the date of that letter ?
“A June 12, 1963.
“Q Did the letter seek to make an appointment with you?
“A Yes, sir, it said: ‘The above named injured employee has been ordered to secure an appointment and report to you for examination.’
“Q. Doctor, have you ever had any connection whatsoever with Melvin Foster prior to that time, sir ?
“A No, sir.
“Q Had you at any time had any connection with Consolidated Underwriters with relationship to Melvin Foster, prior to that time?
“A No, sir.
“Q. Did you consider yourself as representing the Industrial Accident Board of the State of Texas in giving your opinion?
“A Yes, sir, I did.”

Appellant cites as authority sustaining its contention Texas Indemnity Ins. Co. v. Arant, Tex.Civ.App., 171 S.W.2d 915 and Employees Lloyds v. Schott, Tex.Civ.App., 183 S.W.2d 262. As we review the record concerning this point, these authorities sustain the trial court’s action in excluding the proffered testimony. The court in the Arant and Schott cases sustained the trial court's action in refusing to permit a medical expert, placed upon the witness stand by the insurance carrier, to testify he had examined Plaintiff at the instance and request of the Industrial Accident Board.

The Appellant argues that the trial court’s action was error in excluding this testimony of Dr. Freiberg, particularly since Appel-lee’s counsel was allowed to bring out that he was paid to come to court by Defendant. The trial court permitted Appellee to elicit from Dr. Freiberg on cross-examination that he was brought over to testify for Consolidated Underwriters (Appellant) and that he expected to be paid for his time by the Appellant.

It is a settled law of this state that a party who sues has a right to cross-examine an adverse witness in order to show interest, bias or prejudice to affect his credibility and a wide latitude is allowed in such matters. Traders & General Ins. Co. v. Robinson, (Tex.Civ.App., 1949) 222 S.W.2d 266, writ ref.; Gulf, C. & S. F. Ry. Co. v. Hays, 40 Tex.Civ.App. 162, 89 S.W. 29, 1905, writ dism.; Missouri, K. & T. Ry. Co. of Texas v. Smith, 31 Tex.Civ.App. 332, 72 S.W. 418, 1903, writ ref.

Having admitted into evidence testimony that has been held to be admissible, the trial court in doing so should not be required to admit into evidence testimony that has been held to be inadmissible. This point is overruled.

By Point No. 3 the Appellant complains that the court erred in refusing to allow testimony to explain the absence of Dr. Wilcox, when Defendant’s counsel had been compelled in the presence of the jury panel to state the doctors Defendant intended to use, which had included Dr. Wilcox.

The trial court refused to allow W. H. Kugle, one of the attorneys representing Appellant, to testify that Dr. Wilcox told him he could not appear and testify during the course of the trial because he was in Overton to perform an emergency operation. However, the court did allow the Appellant to propound the following questions and elicit the.answers thereto:

“Q ' All right, let’s talk about your action then. Have you attempted to have him here and now? .
“A Yes.
“Q Have you been successful ?
“A No, sir.
“Q Is it beyond your control ?
“A Yes, sir.”

We think the above testimony suffices for the purpose of establishing that Appellant was unable to have the witness present. In view of the testimony that the court did admit before the jury, we do not perceive error in the court’s action. This point is without merit and is overruled.

Even if we grant that the trial court might properly have admitted the items of testimony which were excluded and complained of by Appellant’s Points 2 and 3, we are unable to believe that exclusion of it was such an error as was calculated to cause, and probably did cause, the rendition of an improper judgment. Klimist v. Bearden, (Tex.Civ.App., 1964) 374 S.W.2d 783, no writ history; Texas Rules of Civil Procedure, Rule 434.

Lastly, the point is made that the court erred in denying Appellant’s Motion for a.Mistrial because of the conduct of Plaintiff for breaking down and crying before the jury on the witness stand.

The record reflects that while testifying, the Appellee was sitting in the witness chair with his head in his hands and crying. The court retired the jury and suggested that Appellee regain his composure and the trial would be resumed. The jury was recalled and it is not shown that this again occurred.

Under this record, no error is presented by Appellant’s last point because a party’s involuntary manifestation of seemingly genuine emotion by weeping, crying or similar conduct during a civil trial, is not grounds for a mistrial, reversal or new trial, in absence of a showing of extreme prejudicial effect upon the jury, and the decision of the trial court denying a mistrial or new trial on such grounds will not be disturbed by the Appellate court in the absence of an abuse of discretion on the part of the trial judge. Lantex Construction Company v. Lejsal, (Tex.Civ.App., 1958) 315 S.W.2d 177, writ ref., n. r. e.; Western Union Telegraph Co. v. Shaw, 40 Tex.Civ.App. 277, 90 S.W. 58, 1905. The court did not abuse its discretion in refusing to grant a mistrial.

Judgment affirmed.


author: BARROW, Justice.

text:
    John POLLOK et al., Appellants, v. McMULLEN OIL & ROYALTY CO., Inc., et al., Appellees.
    No. 14280.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 14, 1964.
    Rehearing Denied Nov. 18, 1964.
    Ronald Smallwood, Karnes City, for appellants.
    Cox, Smith & Smith, San Antonio, for appellees.
   BARROW, Justice.

This is an appeal by seventeen plaintiffs from an order Of dismissal of their joint suit to set aside mineral deeds executed by these plaintiffs or their predecessors in title to tracts of land located in Wilson County, Texas. The suit was filed by nineteen plaintiffs against twenty-two defendants, but only seventeen plaintiffs perfected this appeal, and they now assert a cause of action against only defendants McMullen Oil & Royalty Co., Inc., and the Fort Worth National Bank, Executor of the Estate of Susie McMullen Langille, Deceased.

This suit was filed on September 7, 1955, however, appellees were not .served with citation until February 26, 1960. On October 19, 1963, appellees filed their motion to dismiss, -predicated upon three grounds: 1. A lack of diligence in prosecuting this suit; 2. The four-year statute of limitations, because of the delay of over four years in obtaining service of citation on appellees; 3., - Res judicata, based on the holding in McMullen Oil & Royalty Co., Inc. v. Lyssy, Tex.Civ.App., 353 S.W.2d 311, that the claim was barred by the four-year statute of limitations. Lyssy’s claim was severed from this original suit and appellees assert that the facts regarding delay in service of citation are identical. The trial court sustained appellees’ motion after a full hearing and dismissed the entire suit on November 15, 1963. There are no findings of fact and conclusions of law.

It is settled that a party who files á petition must prosecute his claim to judgment with reasonable diligence. If he fails to do this, the court has the inherent power to dismiss his claim for want of diligence in its prosecution. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 1957; First Nat. Bank of Houston v. Fox, 121 Tex. 7, 39 S.W.2d 1085, 1931; McDonald, Texas Civil Practice, § 17.18; 20 Tex.Jur. 2d, Dismissal, § 33.

The question presented by this appeal is, as stated in Bevil v. Johnson, supra: “The matter rests in the sound discretion of the trial court. It is not an unbridled discretion, but a judicial discretion subject to review. Upon review, the •question is whether there was a clear abuse of discretion by the trial court. That is a question of law.” See also: Reed v. Reed, 158 Tex. 298, 311 S.W.2d 628, 1958; Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, Tex.Com.App.1942; Howeth v. Davenport, Tex.Civ.App., 311 S.W.2d 480, writ ref. n. r. e.; Kilpatrick v. Norby, Tex.Civ.App., 302 S.W.2d 492, no writ hist.; Routh v. City of San Antonio, Tex.Civ.App., 302 S.W.2d 452, no writ hist.

It is our opinion, from an examination of the entire record in this case, that there is no showing of a clear abuse of discretion in the trial court’s action in dismissing this suit because of appellants’ failure to prosecute it with diligence; In the eight years that the suit had been pending, only the cause of action asserted by Lyssy was tried. The appeal in this case was terminated adverse to Lyssy on January 17, 1962. In December, 1962, appellees filed their first motion to dismiss for want of prosecution and this motion was overruled by the trial court on December 14, 1962. Thus it is seen that the only legal activity in this case for twenty-one months was a motion to dismiss filed by appellees.

Appellants seek to justify their delay by the fact that a companion case from Karnes County was pending on appeal during 1962, and was not decided by this Court until February 20, 1963, with rehearing overruled on March 20, 1963. McMullen Oil & Royalty Co., Inc. v. Moczygemba, Tex.Civ.App., 365 S.W.2d 939. Another companion case from Karnes County was decided in 1961 : McMullen Oil & Royalty Co. v. Korzekwa, Tex.Civ.App., 344 S.W.2d 525, writ ref. n. r. e. Each of these companion cases was held barred by the four-year statute of limitations. Appellants further assert that at the hearing on the motion to dismiss they announced ready on any or all of the remaining causes of action. Considering all these facts, appellants urge that there was nothing before the trial court to indicate an intention not to prosecute their suit.

A similar contention was overruled by the Supreme Court in Bevil v. Johnson, supra, wherein it was said: “The fact that respondents had no intention to abandon it, or that their attorney had hopes of settling the case, cannot be made a ground for charging an abuse of discretion by the trial court.” See also: Stateler v. Nettles, Tex. Civ.App., 163 S.W.2d 700, no writ hist.

The trial court was familiar with the history of this and the Karnes County companion cases, and after a full hearing dismissed this case. There is no showing of a clear abuse of discretion in this action.

The judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    The STATE of Texas, Appellant, v. J. D. SCARBOROUGH et ux., Appellees.
    No. 7597.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 27, 1964.
    Rehearing Denied Nov. 11, 1964.
    Samuel D. McDaniel, Jackson Hubbard, Asst. Attys. Gen., Austin, for appellant.
    Russell & Perkins, Mt. Pleasant, for ap-pellees.
   CHADICK, Chief Justice.

This is an eminent domain action. The judgment in a condemnation suit awarding landowners’ damages for diminution in value of two small residual tracts is affirmed.!

The State condemned and took 2.4 acres out of a 3.9 acre tract of land belonging to Mr. and Mrs. J. D. Scarborough. The. award made to compensate for the acquired acreage is not questioned. . Evidence .was offered to show damage to the 1.5 acre residue. The State in this excerpt from its brief suggests the nature of the damage claimed, to-wit: “Study of the record has revealed * * * only four things' which could possibly he damaging about the taking. (1) The severance itself (though this seems farfetched in the case of residential homesite property) ; (2) Proximity of the house on the north remainder to the new highway; (3) The unfenced condition of the new right-of-way; (4) The cost of a driveway to serve the south remainder.”

The residual tracts are non-contiguous, lying on either side of Interstate Highway No. 30, the dwelling house on a half-acre strip to the north and the other portion of approximately an acre lying on the south side with no direct access facility from one tract to the other. The right-of-way of Interstate 30 passes within 28 to 34 feet of the dwelling. The landowners and their seven children have occupied the entire 3.9 acre tract as a homestead since 1945, and in that time the produce of its cultivation and pasture has been a substantial adjunct of the family larder.

The landowners testified and offered two expert appraisal witnesses. Each expert testified to acquaintance with the tract for a long period of time extending back several years beyond the initial condemnation proceedings. These experts, as well as the husband landowner, expressed opinions as to market value of the residue before and after the condemned portion was taken.

The question for decision is whether or not there is evidence, and if so, sufficient evidence to support the jury’s finding that the residual acreage was diminished.$1500 in value. The State argues that opinions of value tendered into evidence by the landowners have no probative weight because the witnesses did not articulate the •nature of the damage, the effect of the damage on the various parts of the residual acreage and the relationship of the damage to market value- differences, if any, before and after the State’s acquistion. ' To show error, the State cites and primarily relies upon three utility right-of-way cases, Tennessee Gas & Transmission Co., v. Zirjacks, (Tex.Civ.App., wr. dism.), 244 S.W. 2d 837; City of Cedar Hill v. Wheeler, (Tex.Civ.App., no writ), 326 S.W.2d 236; Texas Electric Service Co. v. Vest, (Tex.Civ.App., error ref., n.r.e.), 310 S.W.2d 733. Also cited as supporting the State’s proposition are County of Bexar v. McAlpine (Tex.Civ.App., error ref., n.r.e.), 363 S.W.2d 891; County of Bexar v. Cooper (Tex.Civ.App.1961) 351 S.W.2d 956; Texas Electric Service Company v. Lineberry, 162 Tex. 570, 349 S.W.2d 105; Texas Electric Service Company v. Campbell, 161 Tex. 77, 336 S.W.2d 742.

In the Tennessee Gas & Transmission Co. v. Zirjacks case, (244 S.W.2d 837, at p. 838), it is said: “One claiming damages to land must show the nature of the damage, the effect upon various portions of the tract and the 'relationship of the same to market value. A mere conclusion as to market value is insufficiént for this purpose'.”- ’'Obviously this refers to' a party claiming damage, not his value witness. In the same paragraph from which this quotation is taken the opinion states, “We have carefully examined the statement of facts and find no specific testimony detailing in what ways the laying of the pipe line (thirty inches in diameter) twenty-four inches under the surface across the property within the fifty-foot strip would affect the value of the land lying outside the fifty-foot strip. * * * ” This language is the equivalent of a statement that there is no proof of damage to the land outside the right-of-way.

In the Texas Electric Service Company v. Vest case (310 S.W.2d 733), a 50-foot strip across eight sections/ out of a ranch of thirty-seven sections' of land was condemned to provide right-of-way for the Electric Company’s lines. The only damage to the land outside of the' condemned strip was said to be the burden placed on it of ingress and egress to the right-of-way. To use the words of the opinion, “ * * * [T]he witnesses did not sufficiently explain or detail how and why” the acreage outside of the right-of-way would be damaged. In City of Cedar Hill v. Wheeler, (326 S.W.2d 236), the value witness offered by the appellee testified to certain factors that governed his opinion of value, but the court at p. 243 said: “We are still of the opinion that the factors recited by appellee’s witness Currin were stated in the abstract, leading the jury into the realm of speculation as to what concrete elements of injury to the land is comprehended in his estimate of depreciation. As we read State v. Carpenter [126 Tex. 604, 89 S.W.2d 194], supra, it does not hold that the naked opinion of an expert, without some evidentiary basis, would support a verdict such as we have here.” Here again, absence or the unsatisfactory condition of evidence of damage is a foundation of the decision.

Two of these three cases deal,with exceptionally large tracts of land over which utility right-of-ways had been appropriated. Common to each of the cases is the insufficiency of evidence of damage to the residual acreage,’ that is, the large acreage lying outside of the condemned strip. Though emphasis, in the opinions is placed upon the failure of the expert witness to specify-the nature of the damage to the residual acreage and translate that damage into the market price, the insufficiency of evidence from any source showing damage to the residual acreage is the common denominator of the cases. In the case at hand the damage and its nature is summed up in the quotation from the State’s brief in the second paragraph of this opinion, and it is' uncontradicted that the value witnesses were well acquainted with the remnants of land left after the condemned strip was taken. By implication these witnesses knew the condition of the tracts, and their testimony showing a diminution in value related the condition to their opinion of market value. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, says: “ * * * the correct method of adducing evidence as to market value is by witnesses, after suitable qualification, giving their opinion as to the market value of the residue before and after the taking, rather than undertaking to testify to specific items of injury and damage. See Gainesville, H. & W. Railway Company v. Hall, 78 Tex. 169, 175, 176, 14 S.W. 259, 9 L.R.A. 298, 22 Am.St.Rep. 42.” Here the facts of damage to the residue are in the record and the witnesses are acquainted with such facts. Their testimony translated this damage into a diminished market value.

What compelling reason can there be for the witness to first detail the “how” and “why” of his opinion before expressing his opinion of value ? The facts are before the jury. The grist has been brought to the mill. The jury is apprised of the proximity of the dwelling house to the highway, the need to construct a bridged roadway entrance, to build fences and otherwise re-prepare the odd-shaped severed tracts for cultivation or pasture, etc. The State might, if it chose, have tested the reasonableness of the value witness’s conclusions by cross-examination upon the “how” and “why” detail. The evidence is sufficient to support the jury’s verdict.

An appraiser for the State testified the value of the residual acreage of the Scarborough homestead was exactly the same before and after the State appropriated the 2.4 acres. The State’s endeavor to have the appraiser relate the details of price, etc., in three separate sales of land that the witness used in forming this opinion of value was thwarted by the trial judge ruling such sales inadmissible. The objections directed to the three sales transactions were (1) such sales did ,not involve tracts of comparable land; and (2) that location of Interstate 30 caused an enhancement of the value of the land in the three transactions that was not special to such land alone but a benefit shared generally by all property in the community. It was stipulated that the tracts conveyed by the three transactions were “remainders of land which the Interstate highway has either severed or taken a portion of”. The appraiser indicated by his testimony that he deemed the tracts involved in these sales comparable to the residue Scarborough tracts because they were on the back side of appropriated tracts, and had “the advantage of the service road the same as Scarborough”. Referring to the land in these three separate transactions the appraiser testified, “Value has been increased because the Interstate went in there”.

The appraiser testified that he had examined land values in the vicinity including sales which he took into consideration in forming an opinion. The jury was permitted to hear the appraiser’s opinion of the value of the Scarborough farm residue; excluded only was the appraiser’s hearsay testimony of the three sales transactions. The hearsay nature of the land sales made them admissible only to reveal a part of the substructure supporting the appraiser’s opinion of value. State v. Oakley, 163 Tax. 463, 356 S.W.2d 909. The appraiser was shown to be qualified, skilled and experienced though cross-examination was designed to arouse doubt of the appraiser’s unbiased attitude. The hearsay evidence could not properly be considered by the jury as proof that a sale of the properties had occurred, or the properties had sold .for the prices stated, or as evidence of the market value of the Scarborough tract (State v. Oakley). The function of the excluded evidence was to make known to the jury what the appraiser said he used in part as a basis of his opinion of value. The excluded evidence goes to the appraiser’s qualification to express an opinion. And as previously noticed, qualification was not denied or. seriously challenged.

This court is not convinced that the absence of the excluded testimony, it being cumulative of that showing the appraiser’s qualification, secondary in nature and limited in effect, probably caused the rendition . of. an improper verdict. Rule 434. This, case is distinguishable from those such as City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808; City of Houston v. Pillot, Tex.Civ.App., 73 S.W.2d 585, reversed on other grounds, (Tex.Comm.App.) 105 S.W.2d 870, etc., where non-hearsay evidence of comparable sales is the subject of discussion. The State correctly points out. that the trial judge did not declare the basis of his ruling. However, if he was prompted to - rule by misconception, such mistake is unimportant as excluding the sales was not calculated to cause the rendition of an. improper verdict.

The appellee’s brief fends off the State’s point by countering with the proposition that the State carried the burden of proof but failed to prove the severed tracts of Scarborough land received a special and direct benefit not shared by other property in the community. As supporting the proposition the appellees cite: State v. Davis (Tex.Civ.App.) 140 S.W.2d 861, no writ; Strickland v. City of Friona (Tex.Civ.App.) 294 S.W.2d 254, wr. ref., N.R.E.; City of Houston v. Huber (Tex.Civ.App.) 311 S.W.2d 488, no writ; and Art. 3265, Secs. 3 and 4, Vernon’s Ann.Tex.Civ.St. The State’s appraiser testified the Scarborough tracts had the advantage of a service road, which suggests a special benefit, but there is no evidence that all property in the community did not share the same advantage. In view of the conclusion already expressed further discussion is not warranted.

The forceful motion for new trial filed by the State caused a careful re-examination of the court’s original disposition of this appeal. Following further study it has been concluded that the original opinion properly disposed of the case, but the opinion could very well be put in more precise language. This opinion is substituted for the first, which is withdrawn. The judgment of the trial court is affirmed and the State’s motion for re-hearing is respectfully overruled.


author:
DIXON, Chief Justice.
      CLAUDE WILLIAMS, Justice

text:
    MISSOURI-KANSAS-TEXAS RR. CO., Appellant, v. H. T. SHELTON, Appellee.
    No. 16343.
    Court of Civil Appeals of Texas. Dallas.
    May 15, 1964.
    Rehearing Denied Oct. 9, 1964.

      W. A. Thie, Denison, and Elliott & Nall, Sherman, for appellant.
    Charles H. Gullett and Robert Doss, Deni-son and Baker, Jordan, Shaw & Foreman, Dallas, for appellee.
   DIXON, Chief Justice.

Missouri-Kansas-Texas Railroad Company has appealed from a judgment for $25,-000 awarded to appellee H. T. Shelton, a switchman employed by appellant. The suit was brought for damages for personal injuries. Recovery was sought under the provisions of the Federal Employers’ Liability Act, Title 45, §§ 51 and 53, U.S.C.A.

Appellee alleges that he sustained serious injuries while alighting from a moving train not only as a result' of being struck by a caboose on the train from which he alighted but also as a result of being struck by an engine coming from an opposite direction upon an .adjacent track. ‘ ■

Sixty-seven special issues were submitted to a jury. In answering these issues the jury in effect acquitted appellant in all particulars except in its answers to Special Issues Nos. 8, 9, 10 and 65, which four issues were answered as follows:

(8) Appellant permitted chatt, gravel, rocks, mounds of earth or debris to remain in the area of the hump where appellee alighted;

(9) said act was negligence;

(10) appellee’s injuries resulted in whole or in part from such negligence;

(65) appellee’s injuries were not the result of an unavoidable accident.

The jury did not find that any act of appellee contributed to cause his injuries.

Appellant’s points on appeal, Nos. 1, 2, 3, 4, 8, 9, 10, 11, 12, 13/ 14, 16, 17 and 18, all involve appellant’s main contention: that the court erred in requiring the jury to apply different standards to appellant than to appellee in matters of causal relationship. The court submitted issues and definitions which permitted answers favorable to ap-pellee if the jury found that appellee’s injuries resulted in whole or in part from appellant’s negligence. But as to contributory negligence the court submitted issues and definitions which permitted answers favorable to appellant only if the jury found that appellee’s injuries were proximately caused by his own negligence.

Appellant not only objected to the issues as submitted but objected to the court’s refusal to submit requested issues and definitions which would have required the jury to apply the same standards to appellant and appellee in matters of causal relationship.

The Federal Employers’ Liability Act Title 45, § 51 expressly provides that every common carrier by railroad while engaged in interstate commerce shall be liable in damages to any employee suffering injury resulting “in whole or-in part” from the negligence of the railroad. This provision has been upheld in numerous decisions, Federal and State.

We quote from the opinion of the Supreme Court of the United States in Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500, 77 S.Ct. 443, 448, 1 L.Ed.2d 493:

“Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or ■death due ‘in whole or in part’ to its negligence. (Emphasis added.)
“The law was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence. The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference.”

See also Dennis v. Denver & Rio Grande Western R. Co., 375 U.S. 208, 84 S.Ct. 291, 11 L.Ed.2d 256; Coray v. Southern Pacific Co., 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208; Page v. St. Louis Southwestern Ry. Co., 5 Cir., 312 F.2d 84; and Campbell v. Chesapeake & Ohio Ry. Co., 36 Ill.App.2d 276, 183 N.E.2d 736.

There are .also numerous opinions, some of them by Texas courts, in which it is held that the Federal Statute is controlling over the common-law Or statute of a state. Texas & Pacific Ry. Co. v. Younger, Tex. Civ.App., 262 S.W.2d 557; Rio Grande, E. P. & S. F. R. Co. v. Dupree, (Comm.App.) 55 S.W.2d 522; and see the annotations under Note No. 54 of Title 45, § 51, U.S.C.A.

Title 45, § 53, U.S.C.A. expressly provides that in actions for personal injuries to an employee or for injuries resulting in death, 'the fact that the employee may have been • guilty of contributory negligence shall not 'bar a recovery, but the damages shall be •diminished bythe jury in proportion to the .amount of negligence attributable to such 'employee. There are many cases upholding .this provision, the latest being Dennis v. Denver & Rio Grande Railroad Company, supra. See also Wantland v. Ill. Central R. Co., 7 Cir., 237 F.2d 921; Sears v. Southern Pacific Co., 9 Cir., 313 F.2d 498; and the numerous annotations under Notes Nos. 41-44, of Title 45, § 53, U.S.C.A. .

In applying this statute a definition -of contributory negligence has been approved which definition includes the proximate cause theory as applied to the alleged contributory negligence of the employee. Chesapeake & Ohio Ry. Co. v. Richardson (1941), 116 F.2d 860, cert. denied, 313 U.S. 574, 61 S.Ct. 961, 85 L.Ed. 1531. See also Atchison T. & S. F. Ry. Co. v. Seamas, 9 Cir., 201 F.2d 140.

We are convinced that under the Federal Statutes, Title 45, §§ 51 and 53, U. S.C.A., it was not error for the trial court to submit issues to the jury inquiring whether appellee’s injuries resulted in whole or in part from appellant’s negligence. We have been impelled to this conclusion by the plain wording of the statute itself and by the interpretation put thereon by numerous judicial opinions, especially by the strong language used by the Supreme Court of the United States in Rogers v. Missouri Pacific RR. Co., supra, from which opinion we quoted earlier in this opinion.

We are also convinced that it was not reversible error for the court to submit the contributory negligence issues in such manner as to inquire of the jury whether appellee’s negligence was, in any of the alleged instances, a proximate cause of his injuries. The Congress has seen fit by statute to supplant the common-law duty of railroads to employees by the more drastic duty of the “In-whole-or-in-part” causation concept. But the Congress has not seen fit by statutory enactment to change the common-law concept of proximate cause with reference to contributory negligence of the employee. And in the absence of such a statutory enactment the common-law rule must prevail. Texas & N. O. R. Co. v. Railroad Commission, Tex.Civ.App., 220 S.W.2d 273; Smith v. J. Weingarten, Inc., Tex.Civ.App., 120 S.W.2d 878, 880; City of Corpus Christi v. Coffin, Tex.Civ.App., 35 S.W.2d 202; State v. Anderson, 119 Tex. 110, 26 S.W.2d 174, 69 A.L.R. 233; 15 C.J.S. Common Law § 12a, p. 619.

The common law prevails in Texas unless inconsistent with the Constitution and laws of the state or the United States, Art. 1, Vernon’s Ann.Civ.St. The common law prevails with reference to causal relationship in contributory negligence. It is a long established rule that the Federal courts enforce the common law of the state in which a. cause arises and L tried when such common law is not in conflict with the Constitution and statutes. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; United States v. Swierzbenski, 2 Cir., 18 F.2d 685; The West Jester (Wagstaff v. United States, et al.), 9 Cir., 281 F. 877; 15 C.J.S. Common Law § 16, p. 630.

No cases exactly in point on the issue raised by appellant have been cited to us and we have found none. But there are cases which seem to us to point in the direction of our holding in regard to the employee’s liability for his own negligence under Title 45, § 53, U.S.C.A. Sears v. Southern Pacific Co., 9 Cir., 313 F.2d 498 (Syl. 3); Atchison T. & S. F. Ry. Co. v. Seamas, 9 Cir., 201 F. 2d 140. We overrule appellant’s Points Nos. 1, 2, 3, 4, 8, 9, 10, 12, 13, 14, 16, 17 and 18.

In its Point No. 5 appellant says that it was error for the court to base its judgment on the jury’s findings to Special Issue No. 9. The issue was submitted as follows t

“SPECIAL ISSUE NO. 9
“Do you find from a preponderance of the evidence that such act in permitting either chatt, gravel, rocks, mounds of dirt, or debris to remain in the area of the hump where Plaintiff alighted from said caboose, if you have so found in answer to the preceding special issue, was negligence, as defined herein ?
“Answer Yes or No.”

The answer of the jury was “Yes”. In answering Issue No. 10 the jury found that ap-pellee’s injuries resulted in whole or in part from said negligence.

In answering Special Issue No. 2 the jury had found that appellant had not failed to furnish appellee a reasonably safe place in which to work.

Appellant contends (1) that Special Issue No. 9 is multifarious and (2) that the jury’s answer to the issue is in conflict with the answer to Special Issue No. 2.

The first of the above contentions raises the question, often vexing of whether an issue as framed is defective because it submits more than one ultimate issue. We have concluded that the issue is not defective in that regard. It has often been held that an issue is not multifarious because it groups several evidentiary or subsidiary facts together, so long as it involves only one ultimate issue. Duff v. Mathews, Tex. Civ.App., 300 S.W.2d 679; Jones v. Scott, Tex.Civ.App., 266 S.W.2d 534; Gray County Gas Co. v. Oldham, Tex.Civ.App., 238 S.W.2d 596; Howell v. Howell, 147 Tex. 14, 210 S.W.2d 978; Service Mutual Ins. Co. of Texas v. Territo, et al, Tex.Civ.App., 147 S.W.2d 846. Really only one ultimate issue was inquired about in Special Issue No. 9: whether appellant was negligent in permitting foreign substances to remain in the area in question.

As to the second of appellant’s contentions under its Point No. 5 we must give an affirmative answer. The jury’s findings in response to Special Issues Nos. 2 and 9 are in conflict.

In Arnold v. Panhandle & S. F. Ry. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889, the jury acquitted the railroad on eight specific acts of negligence, but found that the railroad had not furnished Arnold a reasonably safe place in which to work. In holding that the answers were not in conflict the Supreme Court of the United States reasoned that the specific findings were not exhaustive or all-inclusive of the acts which might have constituted negligence, while the unsafe-place-to-work finding was exhaustive and all-encompassing. In other words, the unsafe-place-to-work negligence may have resulted from an act not named or included among the specific acts submitted.

The reverse of the above situation is presented here. In this case the jury answered “No” to an inquiry whether the railroad had failed to furnish appellee a reasonably safe place to work, then found from a preponderance of the evidence that the railroad was negligent in permitting chatt, gravel, rocks, mounds of dirt, or debris to remain in the area where appellee alighted from the caboose. Since the safe-place-to-work finding is exhaustive and all-encompassing it cannot be reconciled with the finding in regard to chatt, gravel, etc. The Arnold case is really authority for holding that the answers here are in conflict.

In support of its view that there is no conflict between the jury’s answers to Special Issues Nos. 2 and 9 appellee seeks to invoke the rule that a negative answer to a negligence issue submitted in a negative form is not the same as an affirmative answer of negligence. It merely means that the party having the burden of proof did not establish the non-existence of the condition. Hill v. Leschber, Tex.Civ.App., 235 S.W.2d 236; Gulf States Utilities Co. v. Grubbs, Tex.Civ.App., 44 S.W.2d 1001; 41-B Tex. Jur. 780.

As we view the situation the rule relied on by appellee is not applicable here. In answering Special Issue No. 2 “No” the jury in effect found that appellee had not discharged his burden of showing that appellant had furnished appellee an unsafe place in which to work. In answering Special Issue No. 9 “Yes” the jury in effect found that appellee had discharged his burden of showing that appellant had furnished appellee an unsafe place in which to work. Both answers cannot be correct. We think the test quoted in Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453, (Syl. 2) is applicable here. The two findings are in conflict. We sustain appellant’s Point No. 5.

In its sixth and seventh points appellant complains of the submission of Special Issues Nos. 8 and 9 on various grounds. Since we have held that the jury’s answer to Issue No. 9 cannot stand we shall not pass upon the question whether these two related issues were technically defective in the form in which they were submitted.

In its fifteenth point appellant as- , serts that the court was in error in overruling appellant’s motion for judgment notwithstanding the verdict of the jury. The court could properly have sustained the motion only if there was no evidence to sustain-the jury’s verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Calvert, “‘No Evidence’ and ‘Insufficient Evidence’ Points of Error,” 38 Texas Law Review 361.

Appellee testified that in alighting from the caboose he stepped on an object that “felt like it was about 'as big as your two fists or bigger.” He had earlier signed a statement (which he said he did not know his wife had made out) in which statement he made no mention of a rock or something “about as big as your two fists.”

Appellee also testified that his “purpose in getting off on that side of the train was a safe place and a proper place to get off at.” He further testified “I selected to get off there, because it the safe place to get off.” These last two statements by appel-lee if taken out of their context would appear to be in conflict with appellee’s statement that he stepped on an object as big as both fists. But when appellee’s testimony is considered in connection with its context and in connection with his testimony as a whole and with the testimony of other witnesses, the apparent conflict can be reconciled. It was while appellee was being cross-examined as to whether he was negligent in alighting between two moving trains that he said that he had selected “a safe and proper place to get off at.” We quote further from his testimony:

“Mr. Freels: You got off out there without guarding against moving equipment on an adjacent track, did you not ?
“A. No, sir.
“Q. You say you did not?
“A. I got off guarding myself.
“Q. All right, sir. You got off without guarding yourself against unsafe footing, did you not? 1$ that what.you are saying here? t .
“A. Got off on what I knew to be cleanest place for footing.
“Q. All right, sir. And it is clean out there, isn’t it?
“A. The cleanest place. No, sir, it’s not clean.”

There was ample testimony from other witnesses that the place where appellee alighted was not clear of debris including various substances.

Even if we were to say that appellee’s own testimony is conflicting on the question of a safe place to alight, such conflict would raise a fact issue. Overton Refining Co. v. Harmon, 81 S.W.2d 207 (Rev. on other grounds, 130 Tex. 365, 109 S.W.2d 457); U. S. Fidelity & Guaranty Co. v. McCollum, Tex.Civ.App., 70 S.W.2d 751; Hatley v. Hatcher, Tex.Civ.App., 376 S.W.2d 943; 41-B Tex.Jur. 489; 24 Tex.Jur.2d 369. Appellant’s fifteenth point is overruled.

In its Point No. 19 appellant alleges error of the court in permitting appellee to show notice of conditions at the place he alighted by means of complaints as to the railroad yard generally as well as the taking of a strike vote with reference to the whole railroad yard.

Evidence concerning the above matters was first objected to on the ground that the questions did not limit the inquiry to the area and time involved. This objection was sustained. Later appellant objected to more limited questions on the ground that the questions were “irrelevant and immaterial,” “no proper predicate” and “prejudice”. Still later appellant itself brought out the questioned evidence on cross examination. Under the circumstances no reversible error is shown. Medina Electric Coop., Inc. v. Ball, Tex.Civ.App., 368 S.W. 2d 227; Bales v. Delhi-Taylor Oil Corp., Tex.Civ.App., 362 S.W.2d 388; Hooten v. Dunbar, Tex.Civ.App., 347 S.W.2d 775; Withers v. Tyler County Lumber Co., Tex.Civ.App., 326 S.W.2d 173; Marsh v. State, Tex.Civ.App., 276 S.W.2d 852. Appellant’s Boinf No. 19 is overruled.

In its Points Nos. 20 and 21 appellant talses the position that (20) there was no evidence to support the submission of Special Issue No. 8 and (21) there was insufficient evidence to support the submission of the issue. Without going into further detail in regard to the evidence, we cannot say that there was no evidence in support of the submission of the issue. And the “no evidence” rule is applicable in weighing these points.

In its Point No. 22 appellant says that the answer of the jury to Special Issue No. 8 is so against the great weight and preponderance of the evidence as to be manifestly wrong. We see no merit in this point. There was ample evidence to support the jury’s answer, some of which evidence we have pointed out. Point No. 22 is overruled.

The court submitted Special Issue No. 67 as follows:

“What per cent, if any, do you find from a preponderance of the evidence does the negligence, if any, of the plaintiff bear to the entire negligence, if any, of both the plaintiff and defendant ?”

This issue was accompanied by an instruction that the issue was to be answered only in the event the jury found that contributory negligence on the part of plaintiff proximately caused his own injuries and that negligence on the part of defendant resulted in whole or in part in defendant’s injuries. We think the issue was properly submitted. Thompson v. Robbins, 157 Tex. 463, 304 S.W.2d 111, 116-117. Notwithstanding the instruction the jury answered the issue “75% Plaintiff.” In doing so the jury plainly went contrary to the instruction, for none of the contributory negligence issues was answered in the affirmative. Therefore, the answer to Special Issue No. 67 can have no significance. In the absence of any finding of contributory negligence the comparative- negligence doctrine, or the diminution of- the damages rule can have no application. Thompson v. Robbins, supra.

Because of the conflict in the jury’s answers to Special Issues Nos. 2 and 9 the judgment of the trial court will be reversed and the cause remanded for another trial.

Reversed and remanded.

ON MOTION FOR REHEARING

In his motion for rehearing appellee 'vigorously assails the holding in our original opinion that the jury’s answers to Special Issues Nos. .2 and 9 are in irreconcilable conflict, necessitating a reversal of the court’s judgment.

Special Issue No. 2, the jury’s 'answer thereto and the instructions to the jury accompanying the submission of the' special issue were as follows:

“Do you find from a preponderance, of the evidence that on the occasion in question defendant failed to furnish plaintiff a reasonably safe place in which to work?
“Answer ‘yes’ or ‘no’.
“ANSWER: No.
“You are instructed that defendant was under a duty to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work, and this duty was a continuing one even though the work may have been fleeting or infrequent.
“You are further instructed that the duty to exercise ordinary care to furnish a safe place to work does not have reference only to the physical condition of the place itself but also has reference to the negligent acts, if any, you find of defendant’s employees on the occasion in question.
“You are further instructed that this duty is a duty which becomes more imperative as the risk increases.”

Special Issue No, 9 is quoted in full in our original opinion, so need no.t be repeated here.

Appellee insists that the jury’s answers to the two issues are consistent with each other and are not at all in conflict. We shall briefly present appellee’s contentions in support of this view.

APPELLEE’S CONTENTIONS .

. (1) According to appellee the jury’s answer of “No” to Special Issue No. 2 can in no wise be construed as an affirmative finding that appellant provided appellee a reasonably safe place in which to work. The answer is merely a finding by-the jury that appellee did not discharge his burden •of proof under that issue; that the issue as drawn was a “negative submission” which inquires whether the jury finds from a preponderance of the evidence that appellant “failed” or “did not” do a certain act as opposed to an “affirmative” submission, meaning on inquiry whether the jury finds that appellant did a certain act.

On the other hand the jury’s answer to Special Issue No. 9 is an affirmative finding of a specific act of negligence on the part of appellant. This finding necessarily means that appellee did discharge his burden of proof under the affirmative submission of Special Issue No. 9. In the face of this affirmative finding of negligence appellant cannot escape its liability because the jury found that the evidence did not preponderate under the negative submission of Special Issue No. 2. In support of his argument appellee cites us to Halliburton Oil Well Cementing Co. v. Groves, Tex.Civ. App., 308 S.W.2d 919, 938; Hill v. Leschber, Tex.Civ.App., 235 S.W.2d 236; Gulf States Utilities Co. v. Grubbs, Tex.Civ.App., 44 S.W.2d 1001; 41-B Tex.Jur. 780.

(2)In further support of his contention that the two answers are not in conflict but are consistent with each other appellee makes this argument:

“Even if the answer to Special Issue No. 2 were to be regarded as an affirmative finding, however, it does 'not 'appear there would be irreconcilable conflict between the two issues. From the standpoint of the jury, from all the testimony and evidence in this case, there is a reasonable explanation .of the answers to the two issues. The inquiry with respect to furnishing a reasonably safe place in which to work .could have been answered by the jury based upon testimony and evidence covering the condition of the entire Ray Yard in Denison, an area of a considerable number of acres. The inquiry was not.'. localized to the area of ‘the hump where Plaintiff alighted’; however, with respect to Special Issue No. 9, the inquiry was localized to ‘in the area of the hump’, and Special Issue No. 9 inquired only about that area, which is only a small fractional part of Ray Yard; the jury had evidence with respect to the Yard generally and had evidence with respect to the specific area of ‘the hump.’ ”
* * * * * *
“It is entirely harmonious to state that a reasonably safe place to work has been provided, yet the employer had committed a negligent act. Certainly one negligent act does not automatically make an area an unsafe place to work.”

(3) Appellee also reminds us of a rule which has been announced in several Texas cases to the effect that a specific finding will prevail over a general finding in attempting to reconcile a seeming conflict in jury answers. Ft. Worth & Denver Ry. Co. v. Britton, Tex.Civ.App., 310 S.W.2d 654, 657; Harbin v. City of Beaumont, Tex.Civ.App., 146 S.W.2d 297; Bragg et al. v. Hughes, Tex.Civ.App., 53 S.W.2d 151.

(4) Appellee says that “this Court cannot under the guise of state procedure defeat substantive rights granted appellee by Congress under the Federal Employers Liability Act.” This argument is based on the statement by the Supreme Court of the United States in Arnold v. Panhandle & Santa Fe Ry. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889, as follows, “ * * * the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.”

OPINION ON REHEARING

We find ourselves unable to agree with appellee.

(1) Appellee’s arguments overlook the very important instruction to the jury for its guidance, in answering Special Issue No. 2. For emphasis we repeat that instruction: “ * * * the duty to exercise ordinary care to furnish a reasonably safe place to work does not have reference only to the physical condition of the place itself, but also has reference to the negligent acts, if any, you find of defendanfs employees on the occasion in question.’ (Emphasis ours.)

In the light of the above instruction the effect of the jury’s answer of “No” to Special Issue No. 2 was that the jury did not find from a preponderance of the evidence that appellant had been guilty of any act of negligence with regard to a safe place to work. Yet in answering Special Issue No. 9 the jury found from a preponderance of the evidence that appellant had been guilty of an act of negligence: permitting chatt, etc. to remain in the area of the hump where appellee alighted from the caboose. The two answers seem to us to be in irreconcilable conflict.

(2) We are also of the opinion that ap-pellee’s argument in Paragraph (2) of his contentions becomes wholly untenable when considered in connection with the court’s very plain instruction in connection with the submission of Special Issue No. 2 as above quoted.

(3) We are aware of the holdings in the cases cited by appellee in support of his argument No. (3). But we do not consider those holdings applicable here for these reasons:

(a) The holdings refer to a state procedural rule. The Supreme Court of the •United States, as cited and quoted by ap-pellee in the Arnold case, refuses to recognize state procedural rules in passing on substantive rights under Federal laws. See also 79 A.L.R.2d 574.

(b) The Arnold case itself holds in effect that a specific finding of no negligence will not prevail against a general finding of an unsafe place to work because the latter finding is more exhaustive in its scope. In the case now before us the position is reversed. The finding in answer to Special Issue No. 2 is broader in its scope than the answer to Special Issue No. 9. The substance of the jury’s answer to Special Issue No. 2, when considered in the light of the instruction accompanying it, is that the jury did not find from a preponderance of the evidence that there was -any negligence on the part of appellant with respect to a safe place to work. Such finding, in the view of a majority of this court, collides with the jury’s answer to Special Issue No. 9 where the jury finds specifically from a preponderance of the evidence that there was an act of negligence on the part of appellant; permitting chatt, etc. to remain in the area.

(4)We bow to the holding of the Supreme Court of the United States to the effect that the assertion of Federal rights is not to be defeated under the name of local practice. But we do not consider that rule applicable here, for the question before us involves the substantive rights of the parties — the ultimate issue of negligence. Appellee in his Supplemental Motion for Rehearing says, “Appellee agrees with appellant that the safe place to work issue is an ultimate one.” He then falls back on his theory that since Special Issue No. 2 was not submitted or answered in affirmative form, there cannot be any conflict in the jury’s answers.

Appellee’s motion for rehearing is overruled.

Overruled.

CLAUDE WILLIAMS, Justice

(dissenting on rehearing).

After careful reconsideration and study of the record I find myself unable to agree with my esteemed brethren on the ultimate disposition of this appeal. I am in complete accord with the majority opinion as it relates to all points presented with the exception of the point of error relating to the alleged irreconcilable conflict between Issues Nos. 2 and 9. Since I am unable to agree that a fatal conflict exists I respectfully record my dissent.

The majority has concluded that this case should be reversed solely because of an alleged- irreconcilable conflict between the answer of the jury to Special Issue No. 2 and the answer of the jury to Special Issue •No. 9. -These issues, together with the in.struction following Issue No. 2, have been ■copied verbatim in the original opinion and the opinion on rehearing. The primary .question, therefore, is whether a conflict in -fact exists between the answers assigned by •.the jury to the two questions submitted to them. .A conflict exists in a jury verdict if the answers to two or more special issues cannot both be true. When both issues, and the jury’s answers thereto, are subjected to •¿'careful exegesis I am convinced that there is- no actual conflict at all. Special Issue .No. 9 presents no problem. It amounts -to an affirmative submission of the -question of whether the act on the part of the -railroad in -permitting -chatt, gravel, - rust,.-mounds .of dirt, or debris to -remain in the are^ of the hump where plaintiff alighted from the. train was negligence. To this question the 'jury gave an affirmative answer; The plaintiff therefore fulfilled his obligation to discharge the burden of securing the jury answer of “Yes” to this essential-element of recovery.

As to Special Issue No. 2, and the jury answer thereto, we have an entirely different situation. By this .issue the trial court asked the jury whether they found from a preponderance of the evidence that on the occasion in question defendant failed to furnish plaintiff a reasonably safe place in which to work. In reply the jury said “No”. What did the jury mean by this answer ? I can conceive of no other meaning than that the answer is merely a finding by the jury that appellee did not discharge his burden of proof as to that issue. It must be observed that the issue, as submitted, amounted to a “negative submission” as opposed to an “affirmative submission” as in Special Issue No. 9. The answer “No” to such issue merely means that the jury found that the evidence did not preponderate in favor of a finding of failure to provide a reasonably safe place to work. However, the mere fact that the plaintiff failed to sustain his burden of proof on this issue alone cannot reasonably to be said to be equivalent to an affirmative finding that the railroad company did provide appellee with a reasonably safe place to work on the occasion in question, or that its servants were not negligent in any particular act or omission.

Thus we have a situation where the ap-pellee has failed to sustain his burden of proof, and secure a finding on his general issue of failure to provide a safe place to work but, in Special Issue No. 9, appellee has successfully maintained his burden of proof to establish specific negligence which contributed to bring about his injuries. I conclude that the jury’s answer to Special Issue No. 2 is not an affirmative finding of any fact, or omission of duty, but is nothing more than a statement by the jury that the evidence presented by appellee was not sufficient to preponderate the evidence in favor of the finding sought by the issue. The mere failure to support his burden of proof on this issue does not, as a matter of law, amount to a converse finding against appellee. 41-B Tex.Jur. 780; Halliburton Oil Well Cementing Co. v. Groves, Tex.Civ.App., 308 S.W.2d 919, 938; Hill v. Leschber, Tex.Civ.App., 235 S.W.2d 236; Gulf States Utilities Co. v. Grubbs, Tex.Civ. App., 44 S.W.2d 1001. Accordingly, both answers of the jury to the two special issues involved may be well true and yet not be in conflict.

Even though we should assume, arguen-do, that the answer of the jury to Special Issue No. 2 amounted to an affirmative finding, as contended by appellant, and as found by the majority in their opinion on rehearing, there is, in my judgment, a compelling reason why there is no fatal or irreconcilable conflict between that answer and the answer of the jury to Special Issue No. 9. By both state and federal law we are enjoined to the performance of a duty to construe verdicts as not being irreconcilably conflicting when there is any reasonable explanation of seeming conflicts. Courts should always assume the honesty and at least ordinary intelligence of a jury and that they never intend that their specific findings of fact should be destroyed by a general finding in seeming conflict therewith. 41-B Tex.Jur., Sec. 580, p. 795; Bragg et al. v. Hughes, Tex.Civ.App., 53 S.W.2d 151; Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558, 562.

In Gallick v. Baltimore & Ohio RR. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618, the United States Supreme Court said:

“But it is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them: ‘Where there is a view of the' case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way.’ Atlantic & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798. We therefore must attempt to reconcile the jury’s findings, by exegesis if necessary, as in Arnold v. Panhandle & S. F. R. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889; McVey v. Phillips Petroleum Co., 288 F.2d 53 (C.A. 5th Cir.); Morris v. Pennsylvania R. Co., 187 F.2d 837 (C.A.2d Cir.) * * * before we are free to disregard the jury’s special verdict and remand the case for a new trial.”

Applying these well established rules to the record before us, it is evident that we can, as we must, reconcile the jury’s answers to these issues. Special Issue No. 2 was a general issue, whereas Special Issue No. 9 was a specific issue of specific negligence. The specific finding of the jury in answer to Special Issue No. 9 should prevail over any possible general finding as contained in Special Issue No. 2 when we attempt to reconcile an alleged conflict in jury answers. Ft. Worth & Denver Ry. Co. v. Britton, Tex.Civ.App., 310 S.W.2d 654, 657; Harbin v. City of Beaumont, 146 S.W. 2d 297; Bragg et al. v. Hughes, Tex.Civ.App., 53 S.W.2d 151; Panhandle & Santa Fe Ry. Co. v. Arnold, Tex.Civ.App., 283 S.W.2d 303, reversed, 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889.

In my opinion the majority has applied a strained and harsh construction .upon the alleged conflicting verdict of the jury in this case. I believe that the law imposes upon us, as a reviewing court, the duty of analyzing the jury’s verdict in the most favorable light and resolving any possible conflict so that the verdict may stand, rather than fall. In my humble judgment this verdict presents one that can easily be reconciled, and should be reconciled, in the interest of justice.

Finally, I think that we must bear in mind that we are here dealing with a Federal remedial statute, the Federal Employers’ Liability Act. The Supreme- Court of the United States has repeatedly held that this Federal remedial statute is liberally construed- - in favor of an injured workman. As stated by the Supreme Court of the United States in Arnold v. Panhandle & Santa Fe Ry. Co., 353 U.S. 360, 77 S.Ct 840, 1 L.Ed.2d 889; “* * * the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.”

In Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143, the Supreme Court of the United States said:

“Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably, made, is not to be defeated under the name of local practice.”

The majority contends .that the question before us involves the substantive rights of the parties rather than procedural rights. I cannot agree. I believe that the same substantial question of state procedural rights is involved here as was involved in Arnold. In. this case Shelton has sustained his burden to establish an affirmative finding of negligence on the part of the railroad company which contributed to cause his injuries for which the jury said he should be compensated. The mere fact that Shelton failed to introduce sufficient evidence, in the opinion of the jury, to preponderate in favor of his general allegation of failure to provide a safe place of work, does not, in my judgment, defeat his right to recover under this Federal statute.

I would sustain the motion for rehearing and affirm the judgment of the trial court.