author: LANGDON, Justice.

text:
    Mrs. Edward Wayne HILL, Individually and for LaDonya Hill, et al., Appellants, v. W. E. BRITTAIN, INC., et al., Appellees.
    No. 16743.
    Court of Civil Appeals of Texas. Fort Worth.
    June 24, 1966.
    Rehearing Denied Sept. 9, 1966.

      Ralph M. Hall, Rockwall, J. Alex Blake-ley, Dallas, for appellants.
    H. J. Loe, Fort Worth, Johnson, Guthrie, White, & Stanfield, and Curtis White, Dallas, for appellees.
   OPINION

LANGDON, Justice.

This is an appeal from a judgment non obstante veredicto rendered in favor of ap-pellees by which appellants seek to have the judgment set aside and the cause remanded for trial on the merits.

Mrs. Edward Wayne Hill, individually and on behalf of her minor daughter, La-Donya Hill sued G. W. Smith, Monty F. Renshaw, W. E. Brittain, Inc., and Gerald Harris for the death of Edward Wayne Hill, husband and father, which occurred June 26, 1962, on Highway 114 in Wise County, Texas, as the result of an accident involving a car and gravel truck. Hill was a passenger in the car, a Chevrolet, being driven by Don C. LaGrone. The car was headed west on Highway 114 at a point about 3 miles east of Boyd, Texas, when it collided with the gravel truck, owned by G. W. Smith, headed east and being driven by Monty F. Renshaw.

At the time of the collision a dump truck owned by W. E. Brittain, Inc., was being driven by Gerald Harris east on said highway, headed the same direction and ahead of the truck Renshaw was driving. The truck Harris was driving was not physically or otherwise involved in the collision of the two other vehicles. However, Brittian and Harris were joined in the suit on the theory that the truck Harris was driving had a defective motor which prevented Harris from driving faster and thus its presence on the highway was negligence and a proximate cause of Hill’s death.

At the close of the plaintiffs’ testimony and again at close of all'testimony a motion for an instructed verdict was presented by the appellees. Each was overruled and appellees excepted.

Thereafter, the case against all four defendants was tried to a jury. The issues pertinent to this appeal were:

“8A: Do you * * * that Gerald Harris failed to keep a proper lookout, as that term is defined herein, for vehicles following him on the occasion * * * ? ” The jury answered “yes-”

8B — The usual proximate cause issue conditioned on a “yes” answer to 8A was answered “no.”

“9A: Do you find * * * Gerald Harris operated * * * so as to wilfully obstruct and impede the normal reasonable and safe movement of traffic * * * ? ” Followed by 9B — Negligence, 9C — Proximate Cause and 9D — Sole Cause, all of which were unanswered.

“10A: Do you find * * * Gerald Harris operated a heavily loaded truck on * * when the mechanical condition of the truck created a hazard for other traffic * * * ? ” This issue was followed by Issues 10B, 10C, 10D identical with 9B, 9C and 9D respectively, none of which were answered.

11A — Inquired as to whether Harris was negligent in failing to drive upon his right hand shoulder of the roadway and was followed by Issues 11B — Proximate Cause, and 11C — Sole Cause, all of which were unanswered.

As above reflected only Issues 8A and 8B were answered. When the jury reported it was unable to answer all of the issues the court made an entry on his docket as follows: “6-12-65 Jury discharged and mistrial declared.”

On August 2, 1965, Brittain and Harris filed their motion to sever as to them; to disregard certain findings of the jury; to ignore certain issues the jury failed to answer and to render judgment in their behalf. According to the fiat attached by the court the motion was set at 10:00 A.M. on September 3, 1965, and a counsel of record for appellees executed his certificate showing copy of motion mailed to opposing attorneys on August 3, 1965.

On December 21, 1965, after notice and hearing of the motion the trial court in sustaining it, severed as to Brittain and Harris, and disregarding the jury’s answers to certain issues and its failure to answer others entered judgment that plaintiff, individually and for her minor daughter take nothing from the defendants, Harris and Brittain. A portion of the judgment pertinent to this appeal reads as follows: “On the 3rd day of September, 1965, came on to be considered, after reasonable notice thereof was given, said motion. * * * Counsel for Plaintiffs and movants appeared and presented to the Court their contentions in support of and in opposition to the motion. Thereupon, the Court, at the request of counsel for both Plaintiffs and said Defendants, extended the hearing on said motion in order that counsel might furnish the Court with written briefs which, in due time, were filed with the Court by said counsel. The Court, after considering said motion, argument (both oral and written) and said briefs, is of the opinion that said motion should be and the same is hereby in all things sustained.”

Complaint is made of failure to serve appellants with a copy of said motion pursuant to Rule 301, Texas Rules of Civil Procedure, and of the action of the court in considering the motion because: (1) It was filed after the expiration of the term in which mistrial was declared and the court was without authority in a subsequent term to entertain the motion; (2) the discharge of the jury and declaration of mistrial restored the litigation to the same status as if no trial had occurred and thus extinguished any verdict a judgment non obstante veredicto could be based upon; (3) upon declaration of a mistrial nothing was pending in the court from the date thereof until the end of the term and the court therefore was without power to entertain the motion under Section (j), Rule 330, T.R.C.P. (4) Further, complaint is made of the court’s action in holding as a matter of law that there was no evidence of negligence on the part of Harris which concurred with that of Renshaw in proximately causing the collision between the car and truck; in disregarding the jury’s answer to Issue No. 8 and in disregarding the jury’s failure to answer other issues because there was pleading and evidence in support of the submission of and an affirmative finding as to each; that such action denied appellants the right of trial by jury; that since the jury reached no verdict and its findings were insufficient to support a judgment for either party the motion for judgment non ob-stante veredicto amounted to no more than a motion for summary judgment, and the judgment, a holding that plaintiffs’ pleading was not sufficient as a matter of law to support the submission of the negligence and proximate cause issues.

We affirm.

The appellants are not denying that they were served with a copy of the motion and notice of the hearing. They complain because it was not by registered mail as provided by Rule 21a, T.R.C.P.

The above recitations from the judgment reflect that the trial court not only found that reasonable notice of the motion was given but that on the date set for the hearing, counsel for appellants and movants appeared and on joint request of counsel the court extended the hearing and permitted counsel to furnish written briefs before acting on the motion.

While it is true that the certificate of service does not specify whether notice was by registered, certified or regular mail we are of the opinion that the prima facie evidence of service plus the appearance and participation above reflected supports the court’s conclusion that reasonable notice of the motion was given. See Rule 301, T.R.C.P. and Rules 21a, “Notice,” and 21b, “Notice by Certified Mail.” We are of the further opinion that the failure, if any, to comply with the rules of service and notice were waived by the appellants in view of their full participation. Certainly the appellants were in no way prejudiced. There is no showing that they were denied any rights or privileges or that had service been proper, assuming it was not, that a different result would have obtained. There is nothing in this record to suggest that appellants could or would have made a better showing or presented a stronger case had they received notice by registered or certified mail rather than by regular mail.

The purpose of the rules relating to service and notice is to make reasonably certain that all parties to a suit are notified as to the date and time the court has set their matter down for hearing and determination. This is in order that the parties, individually or by counsel may appear, and present their side of the case and to take such action as is deemed appropriate to protect their interest. Thus, service and notice in a technical sense is incidental where the main purpose of obtaining the appearance of all parties and their participation is accomplished.

It is in instances where parties or the attorneys fail to make an appearance and participate in a hearing affecting their rights that an examination of the technical aspects of the rules of service and notice are and should be closely examined and adhered to.

In the case of Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377 (1945), the jury failed to agree on any issue. It was discharged. Thereafter the court without notice rendered judgment for plaintiffs and immediately delivered copies thereof to the defendants. The Supreme Court held that the court was not governed by rules pertaining to judgments non obstante vere-dicto and that no notice of the entry of such judgment to the defendants was required. In its opinion the court stated, “The statutes and the rules contain no express authority for the procedure which was followed, but they contain no prohibition against it. The judgment rendered was the same judgment that would have been rendered had the court sustained plaintiffs’ motion for peremptory instruction before the case was submitted to the jury. A court is authorized to render judgment without submitting the case to the jury if the facts upon which the judgment is based are supported by undisputed evidence.” (Cases cited.) “And it is held that the refusal of a court to grant a jury trial, or the rendition of judgment without a verdict from the jury when the case is tried by a jury, is not error, if the judgment is the only judgment that could properly have been rendered on the facts.” (Cases cited.) In the Slay case motions for new trial were filed and argued before the trial court and the Supreme Court said that the record did not show that defendants were prejudiced by the procedure that was followed.

In the case at bar, the same judgment as entered could have been entered at the time the plaintiff closed and again when both sides closed before submission to the jury. The jury answered only two issues (8A and 8B) having any bearing on the case and all other issues were unanswered. Since it was unnecessary for the court to disregard any finding of the jury it could have entered the judgment it did upon its own motion, and without any notice as in the Slay case supra. The judgment entéred is not inconsistent with the verdict. It is supported by it.

It has been frequently held that where the defendant is entitled to an instructed verdict which is overruled, and thereafter the case is submitted to a jury which fails to agree on a verdict, the Court is authorized to enter judgment for the defendant if the defendant’s motion for an instructed verdict should have been sustained. Thompson v. Twin City Lumber & Shingle Co., 220 S.W.2d 539, p. 541 (Texarkana Civ.App., 1949, ref.); Handy v. Olney Oil & Refining Co., 68 S.W.2d 313 (Fort Worth Civ.App., 1933, ref.); and Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377 (1945) supra.

The docket entry of mistrial was interlocutory. Firestone v. Hall, 143 S.W.2d 797 (Fort Worth Civ.App., 1940, no writ hist.) ; Fox v. Lewis, 344 S.W.2d 731, p. 734 (Austin Civ.App., 1961, ref. n. r. e.) ; and W. T. Rawleigh Co. v. Sims, 108 S.W.2d 332 (Amarillo Civ.App., 1937, no writ hist.). The trial court had the authority to set it aside during the same or a subsequent term provided the case had not been previously disposed of on its merits. Wichita Falls & S. R. Co. v. McDonald, 141 Tex. 555, 174 S.W.2d 951 (1943), citing Texas Land & Loan Co. v. Winter, 93 Tex. 560, 57 S.W. 39 (1900); and Kuehn v. Kuehn by the Tex.Com. of App., 242 S.W. 719 (1922).

It is said in Bachman Center Corporation v. Sale, 359 S.W.2d 290 (Dallas Civ.App., 1962, ref. n. r. e.) that “It is fundamental that a District Court has the inherent right to change or modify any interlocutory order or judgment down to the time when the judgment on the merits of the case becomes final. Rule 166-A, Texas Rules of Civil Procedure. Sneed v. Martin, Tex.Civ.App., 292 S.W.2d 891; Wichita Falls & S. R. Co., v. McDonald, 141 Tex. 555, 174 S.W.2d 951; Manley v. Razien, Tex.Civ.App., 172 S.W.2d 798 ; 25 Tex.Jur. 549, 550.” See also Texas Land & Loan Co. v. Winter, 93 Tex. 560, 57 S.W. 39 (1900) and 33 Tex. Jur.2d 687, § 158, “Judgments”, regarding the court’s retention of plenary power over its judgments until they become final, including the authority to vacate a judgment or any interlocutory judgment and the authorities cited under this section.

In Kone v. Security Finance Co., 158 Tex. 445, 313 S.W.2d 281 (1958), it was said, “The trial court had continuing control of the interlocutory order with power to set it aside even at a subsequent term of court. Texas Land & Loan Co. v. Winter, 93 Tex. 560, 57 S.W. 39; 25 Tex.Jur. 549, Judgments § 153.” Since the matter involved here is not an action upon either an original or an amended motion for new trial we believe the court, under Rule 330, Section (j), T.R.C.P., could of its own motion set aside the entry or order of mistrial and enter judgment as was done in the case of Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377 (1945). Since the court is authorized under Section (j) of Rule 330, supra, to proceed with a hearing of any case or other matter on trial at any subsequent term of court and there is no time limitation placed upon the filing of a motion for judgment non obstante veredicto, any authorities prior to January 1, 1961, the effective date of Rule 330, Section (j), supra, would not deprive the court of the new power conferred by said rule. See also Texas Crushed Stone Company v. Weeks, 390 S.W.2d 846 (Austin Civ.App., 1965, ref. n. r. e.).

Under the authorities we find no merit to the complaints of the appellants relating to service and notice or the authority of the court after term time to set aside its interlocutory order declaring a mistrial, or to enter the judgment it did.

The remaining points may be resolved by answering the single question: As a matter of law, was the evidence adduced by the appellants legally sufficient to prove negligence on the part of the appel-lees which was a proximate cause of the collision in which Hill died? Based upon our review of the record and the authorities bearing upon the facts contained therein we think the question should be answered “No” and that therefore the trial court did not err in disregarding the jury’s answer to one issue and its failure to answer others and in entering judgment for the appellees.

“Under the rule providing that the court may render judgment non obstante veredicto if a directed verdict would have been proper, the term ‘no evidence’ does not mean literally no evidence at all but comprehends those situations wherein by the application of established principles of law the evidence is deemed legally insufficient to establish an asserted proposition of fact.” Kirkpatrick v. Raggio, 319 S.W.2d 362 (Fort Worth Civ.App., 1958, ref. n. r. e).

Neither a jury verdict nor a judgment based upon it may rest on surmise, speculation or suspicion.

In Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, p. 1063 (1898) : “ * * * it is the duty of the court • to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony, in legal contemplation, falling short of being ‘any evidence’ * *

See also Waco Drug Co. v. Hensley, 34 S.W.2d 832 (Tex.Com.App., 1931).

The evidence is summarized as follows: Highway 114 was a two-lane paved roadway. It had the usual and customary markings on it—a dividing stripe down the middle and no-passing marked lanes. It was a narrow, rough, hot top road running generally east and west. Officer Edward Donald Saunders, who investigated the accident, testified the width of Highway 114, where the collision occurred, for eastbound traffic was 10 feet 3 inches, and the entire width was 20 feet 3 inches. June 26, 1962, was a rainy day. At the time of the collision it was drizzling and the pavement was slick, slippery and wet.

Monty F. Renshaw was driving a diesel engine five axle rig, 1958 Mack Truck and trailer weighing 24,000 pounds empty. It was loaded with crushed rock, with a gross weight of 72,000 pounds. He was driving east out of Boyd on Highway 114. The truck and trailer belonged to G. W.. Smith, for whom Renshaw was working. Coming out of Boyd headed east, there is a long sweeping curve to the right with a gradual rise to the top of a hill for a mile and a half or two miles. Renshaw saw a truck up ahead of him as he came up this grade. It was the Harris truck going in the same direction he was traveling—east on 114. At the time Renshaw first noticed the Harris truck it was about one-half mile ahead of him. When Renshaw reached the top of the hill beyond the crest of which the collision took place, he testified he was making 45 to 50 miles per hour. At that time Ren-shaw testified the Harris truck was some 2 to 3 hundred feet on down the road in front of him. Renshaw then pulled out to the left to see if any car was coming. A quarter of a mile way, he saw the Chevrolet in which Hill was riding (headed west) coming toward him going probably the speed limit— 60 miles per hour. After pulling out to the left side of the road to see around the truck, Renshaw then discovered it was so slick he could not get back on his side of the road without danger of jack-knifing his truck and trailer. Rather than lose complete control, he kept his truck and trailer straight on the left side of the road and met the Chevrolet head-on.

Gerald Harris, employee of W. E. Brit-tain, Inc., was driving a gasoline engine dump truck also loaded with crushed rock, the gross weight of which was 42,000 pounds. He had noticed the morning of the accident that the motor would not develop as much speed as it should, and this was particularly noticeable after he got his truck loaded at the rock pit that day. There were several towns having garages in them between the rock pit and the place of the accident where Harris could have stopped to have the motor of his truck repaired. On grades Harris had made, including the last one before the accident, his truck had slowed down to 5 miles per hour or less. When Harris topped the hill beyond which the collision occurred, his truck began to pick up speed so that by the time the collision took place he was traveling 15 to 25 miles per hour. Renshaw testified that he never caught up with, the Harris truck and he was not trying to pass the Harris truck when he pulled out. The impact between Renshaw’s truck and the Chevrolet in which Hill was riding occurred 10 to 15 feet back of the Harris truck. Harris, having come over the crest of the hill and picking up speed going down the opposite slope and traveling in his own lane of travel, did not have any knowledge that Renshaw was anywhere near when the collision occurred.

He was traveling anywhere from 15 to 25 miles per hour at the time of the impact. There was no minimum speed limit for the area. No portion of Harris’ truck was in contact with either of the other vehicles. Harris did not know there was going to be an accident until he heard the crash back of him. Just before the collision, nothing had occurred that had attracted his attention to the rear, and at the time of impact back of him, he was looking straight ahead. No horns were sounded.

Officer Saunders, who investigated the accident, testified the point of impact was 447 feet east of the end of the no-passing zone line near the crest of the hill.

Only Renshaw, Harris and Saunders testified as to the physical details of the collision and the testimony above summarized appears to us to be without dispute. In considering the evidence from the standpoint most favorable to the appellants we are of the opinion it will not support the submission of issues of either negligence, proximate cause or affirmative findings as to such issues.

It is undisputed that Renshaw did not blow his horn and that he was not trying to pass the Harris truck when he lost control of his truck. Further, it was undisputed that Harris did not know that the Renshaw truck was back of him until he heard the noise of the collision. At the time of the collision, Harris was not stopping, slowing down, or turning to left or right. He was on his own side of the road traveling about 15 to 25 miles per hour. Under such circumstances Harris had no duty to keep a lookout to the rear. Having no such duty and not knowing the Renshaw truck was anywhere near, he had no duty to pull out on the shoulder. At the time of the accident Harris was not doing anything from which he should have anticipated injury to others. Any mechanical defect was not related in any way to the accident. The fact Renshaw lost control of his truck two or three hundred feet back when he pulled out to look ahead was not due to any fault of Harris, nor could the latter have anticipated such an occurrence from anything he had done or was doing at the time. Under the testimony Harris was gaining speed, not slowing down, at the time of the collision. Renshaw’s claim that Harris seemed to be stopped is rebutted by his own testimony concerning the facts. Even if Harris was stopped Renshaw lost control of his truck three hundred feet back of Harris. It is not negligence to drive at a speed less than the maximum speed limit or to drive slowly on a road which has no minimum speed limit.

Even had Harris looked in his rear view mirror as he proceeded down his right lane of travel he would have been powerless to have prevented the accident. Renshaw had already lost control of his truck. Harris could not have anticipated the accident nor could he have taken any action which would have prevented it.

In Freeman v. Harkrider, 320 S.W.2d 238 (Amarillo Civ.App., 1959, no writ hist.), it was stated: “He hardly had more than one second to form an opinion of any kind or to apply his brakes in an attempt to avoid the collision. Bailey did not know whether appellee’s Buick car was stopped or moving but he was willing to hazard a guess about the matter. His uncertain statements about whether or not the Buick automobile was moving or stopped and his refusal to give sworn testimony as to either does not constitute competent evidence. Such statements given in his testimony in fact are so weak as to give only a surmise or suspicion and therefore constitute nothing more than speculation or giving an impression or making a guess as to what the facts were and are not admissible as evidence as against credible testimony to the contrary. Houston Fire & Casualty Ins. Co. v. Biber, Tex.Civ.App., 146 S.W.2d 442.

“[3] * * * appellee did not have time to have done anything to have prevented the collision if he had known the Pontiac was approaching immediately before the collision but in any event appellee had the right to assume that the driver of the Pontiac approaching from his rear was observing the laws of the state. Holmes v. Cooley, Tex.Civ.App., 308 S.W.2d 150.

“[4] Appellant claims that appel-lee was not keeping a proper lookout at the time and place of the collision but it has been held that a proper lookout is one that concerns vehicles in front of the motorist and not those approaching from the rear unless there appears to have been some particular fact that called the attention of the front motorist to the other motorist following him. Le Sage v. Smith, Tex.Civ.App., 145 S.W.2d 308. * * * no fact is revealed that would have called the attention of appellee to the appearance of the Pontiac following him. There is nothing to show or indicate that Bailey sounded his horn or gave any warning of his approach * *.

“[5] Appellant charges that appellee’s slow rate of speed, if moving, was negligence such as proximately caused her injuries. No court of this state has held that a slow rate of speed of a motor vehicle driving upon a public road or highway constitutes negligence. Lewis v. Merrill, Tex.Civ.App., 295 S.W.2d 920. It has been held that the operation of a motor vehicle at a rate of 5 to 10 miles per hour while moving down a hill on the driver’s right hand side of the highway when struck by another moving vehicle from the rear, as appellant alleged was being done in the case at bar, did not constitute negligence on the part of the front operator. Mueller v. Bobbitt, Tex.Civ.App., 41 S.W.2d 466.

“ * * * Finally, in our opinion no genuine material issue of fact has been shown to exist as between appellant and ap-pellee. * * * ”

In the case of Solana v. Hill, 348 S.W.2d 481 (Eastland Civ.App., 1961, ref. n. r. e.), at page 485, it is stated: " * * * Hill did not attempt to stop, or slow down, while on the pavement. In the absence of evidence of some fact that should have attracted Hill’s attention to a situation that required a lookout to the rear, he had no duty to keep one. There was nothing in the nature of the situation shown that required Hill to watch cars to his rear. The fact that Hill was driving at less than the maximum speed permitted by law did not create a duty to keep a lookout to the rear. Since there was no duty, there was no negligence in failing to keep a lookout to the rear. Furthermore, we think Hill’s failure to keep such a lookout was, clearly, not a proximate cause of the collision of Earl Weber’s and Jordan’s cars. Le Sage v. Smith, Tex.Civ.App., 145 S.W.2d 308, 312, (Writ Dis., C. J.); Freeman v. Harkrider, Tex.Civ.App., 320 S.W.2d 238; Valley Film Service v. Cruz, Tex.Civ.App., 173 S.W.2d 952, (Ref.W.M.), and Mueller v. Bobbitt, Tex.Civ. App., 41 S.W.2d 466. * * *”

In Le Sage v. Smith, 145 S.W.2d 308 (Fort Worth Civ.App., 1940, writ dis., correct judgment), it was stated: “We have said, in our opinion, that we know no rule of law that would require either Mr. Smith or Mrs. Smith to keep a proper lookout for vehicles approaching from the rear. * * * proper lookout * * * is one that concerns vehicles in front of the party to be held to such rule, and not those approaching from behind, unless there appears some particular fact that calls the attention of the driver of the front car to the car that follows, which would impose some duty upon the driver of the front car to maintain such a lookout, or unless the driver of such car either slows down his vehicle or intends to stop the same, under which circumstances, or either of them, it would be the driver’s duty to keep a proper lookout for vehicles following such car and to then give a proper signal to apprise the driver of the car in the rear of such intention.”

In Merchant’s Fast Motor Lines, Inc. v. Lane, 259 F.2d 336 (5th Cir.) at page 339, it is said: “The driver of a lead vehicle may fail to keep a proper lookout and may fail to signal a left turn. But unless these omissions are related to the time when he is turning and a vehicle is overtaking him, it cannot be said that they are acts of negligence as to a particular following vehicle.” See also the case of Baumler v. Hazelwood, 339 S.W.2d 75 (Dallas Civ.App., 1960) and 162 Tex. 361, 347 S.W.2d 560 (1961), in which proximate cause is discussed, including the two distinct concepts, both of which must be present: (1) cause in fact, — a cause which produces an event and without which the event would not have occurred; and (2) forseeability.

We are unable to find any evidence of negligence on the part of Harris in his operation of the truck and having reached this conclusion there could have been no negligence on his part which concurred with that of Renshaw in proximately causing the collision between the car and the truck. Therefore, the cases cited by the appellant relating to concurrent negligence have no application to the facts of this case.

All points of error are overruled and the judgment of the trial court is in all things affirmed.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    WESTCHESTER FIRE INSURANCE COMPANY, Appellant, v. Jeff Miller RHOADES et al., Appellees.
    No. 11425.
    Court of Civil Appeals of Texas. Austin.
    July 20, 1966.
    Rehearing Denied Aug. 24, 1966.

      Dean Moorhead, Austin, for appellant.
    Cofer, Cofer & Hearne, Douglass D. Hearne, Austin, for appellees.
   HUGHES, Justice.

Jeff Miller Rhoades, doing business as Rhoades Truck Lines and Maryland Casualty Company, a Maryland Corporation, ap-pellees, sued Westchester Fire Insurance, an incorporated stock company under the laws of New York, authorized to write casualty, fire and inland marine insurance in Texas. For cause of action appellees alleged that on July 6, 1961, appellant issued its policy of insurance to Rhoades insuring all risks of direct physical loss or damage from external cause to an oil well gas pump belonging to Desota Gas Producing Company while being transported from Houston to Sidney, Texas. The maximum liability under this policy was $45,000.00. That on May 24, 1962, Desota sued Rhoades alleging damages to the gas pump while in transit from Houston to Sidney in the sum of $43,400.00. Rhoades impleaded appellant in this suit, who refused to defend Rhoades but, instead, entered into an agreement with Desota whereby appellant would be dismissed from the suit and Desota would prosecute its suit against Rhoades, and if Desota recovered a judgment against Rhoades, appellant would be reimbursed its costs, but if no recovery was had appellant would pay Desota a certain sum of money.

Appellees further pleaded that as a result of appellant’s refusal to defend Rhoades in the Desota suit and by reason of the above agreement Rhoades was forced to employ counsel for such purpose and to call upon his “secondary insurer” Maryland Casualty Company to assist in such defense under a policy of insurance Rhoades had with Maryland. The Desota suit resulted in a take nothing judgment for Desota.

The policy of insurance, attached to ap-pellees’ Petition, contains no provision giving appellant the right of making it its duty to defend the insured, Rhoades, in any suit brought against Rhoades for damages to the property insured and transported by him but appellees alleged that appellant was a signatory to three co-insurance agreements, naming them, recognized and followed by the insurance industry under which appellant was the primary insurer whose duty it was to defend the insured in any suit brought against him concerning damage to the insured property, and that the breach of this duty and by reason of the agreement made between appellant and Desota, appel-lees had been damaged in the sum of $8,-943.90, which included attorney’s fees, Court costs and other expenses incident to and incurred in the defense of Rhoades in the Desota suit.

Appellees also alleged that the above acts on the part of appellant were willful and malicious and that they were entitled to recover an additional $9,000.00 as exemplary damages.

Appellant answered these allegations by-general denial only.

Trial was non-jury. Judgment for $8,-506.76, actual damages, and $4,000.00 exemplary damages was rendered for appellees.

There are no findings of fact or conclusions of law.

We are of the opinion that appellant was under no duty to defend Rhoades in the suit brought against him by Desota.

The policy of insurance issued by appellant provided:

“THIS POLICY INSURES: Against all risks of direct physical loss or damage from any external cause (except as hereinafter provided).”

In effect, during a portion of the time Rhoades transported the gas pump, was an insurance policy issued to him by Maryland which provided:

“This policy insures the legal liability of the insured as a common or contract carrier under tariff documents, bills of lading or shipping receipts issued by the insured, for direct loss or damage to lawful goods or merchandise in transit. ⅛ ⅜ ⅜ »

Paragraph 6 of that policy is headed “Defense of Suits” and provides:

“The Company agrees to defend in the name and behalf of the insured any suit against the insured for loss or damage for which insurance is afforded under this policy; but the Company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the Company. The Company agrees to assume the expenses incurred by it under this clause, except settlements of claims and suits, in addition to the applicable limits of liability of this policy. The insured shall cooperate with the company in obtaining evidence, effecting settlements, and conducting suits, hearings and trials.”

Prior to the trial of the Desota suit, Maryland was notified of the suit and it, through its attorneys, took over the defense for Rhoades and procured a judgment in his favor.

We need not discuss or determine whether Maryland had a duty, under the circumstances, to defend Rhoades in the Desota suit. Clearly, the policy it issued to Rhoades made this its duty if the loss asserted was within policy coverage. Just as clearly, no such duty, the duty to defend Rhoades under any circumstances, was cast by appellant by the terms of the policy it issued to Rhoades. This duty to defend is contractual and if there is no contract to defend there is no duty to defend.

In United States Fidelity and Guaranty Co. v. Baldwin Motor Co., 34 S.W.2d 815, Tex.Comm. of App., the Court held the insurance company not liable for the expense of defending a suit against the insured where even though the duty to defend was imposed by the policy the suit involved a hazard not covered by the policy, the Court saying: “The insurance company’s obligation to defend or pay a judgment is based upon the contractual liability assumed by its policy.” Similar language is found in Automobile Underwriters’ Insurance Co. v. Long, 63 S.W.2d 356, Tex.Comm. of App.

It is generally held that the obligation of an insurer to defend and its obligation to pay a loss are several, the obligation to defend being personal to the insurer and the insured the insurer is bound to perform and cannot require the insured to accept defense by others. American Fidelity & Casualty Co. v. Pennsylvania Threshermen and Farmers’ Mutual Casualty Insurance Co., 280 F.2d 453 (5th Cir.). See also United States Fidelity and Guaranty Co. v. Tri-State Insurance Co., 285 F.2d 579, (10th Cir.) ; West American Insurance Co. v. Allstate Insurance Co., 295 F.2d 513 (10th Cir.). See also an annotation in 69 A.L.R.2d, p. 690 discussing the duty of a liability insurer to appeal cases where by the policy it is required to defend. The annotator commences Section 2 by stating, “Basically, of course, the existence of a duty to appeal, if any, is dependent upon the contract of insurance.”

No case has been cited by either party, or found by us, which holds or in which an effort was made to have the Court hold, an insurer under a duty to defend the insured in any case brought against him where the policy did not expressly impose such obligation. This case must, therefore, be decided upon general principles relating to the law of insurance. These principles are fundamental and may be briefly stated.

An insurance policy is a contract entered into between the insurer and the insured, by which each party becomes bound to perform the obligations assumed in the policy of insurance. The parties to an insurance policy may make such contract as they see fit, provided no provision of law or public policy is contravened. Insurance policies being contracts, they are governed by the rules of interpretation that are applicable to contracts generally, notwithstanding the rule that contracts of insurance are to be strictly construed in favor of the insured. The courts can only construe a contract as it was made; they are not authorized to make a new contract for the parties. The terms of the policy constitute the measure of the insurer’s liability.

The above stated principles are taken literally from 32 Tex.Jur.2d, pp. 23, 29, 102-3, 105-7.

It follows, in our opinion, that appellant, under its policy, had no duty to defend Rhoades.

We also hold that no duty to defend Rhoades arose by reason of an “Agreement of Guiding Principles Fire-Inland Marine Insurance” to which Maryland and appellant were subscribers. The following testimony is conclusive on this point.

Mr. Gerald E. Bryan, District Supervisor for Maryland-American-General Group testified for appellees, in part, as follows:

“Q Now, Mr. Bryan, in summary, is it your opinion, based upon your actual experience in the field of underwriting casualty losses and settling claims arising therefrom and your knowledge of the rules of guiding principles between inland marine insurance carriers that Westchester Fire Insurance Company under its policy, which is Plaintiff’s Exhibit No. 1 in this case, was the primary insurer with respect to the Cassard and Clark claim and with respect to the coverage afforded by Maryland Casualty Company’s policy?
A Yes, sir, the Westchester Fire Insurance Company was the primary insurer.
Q Now, when a determination is made, Mr. Bryan, as between two different insurance companies as to one being the primary insurer and the other being the secondary insurer, what is the general rule or pattern followed by those two insurance companies thereafter ?
A You mean, how would the companies handle the claim?
Q Yes, sir.
A The primary would pay up to the limits of liability under its policy and if there was any other loss, the excess carrier would take it up from there under its policy.
Q So, in your opinion, the Westchester Fire Insurance Company, if they followed the guiding principles that you have discussed and if they followed the standards set by the insurance industry, should have attempted to negotiate or settle this claim against Mr. Rhoades up to the policy limits of $45,000 before calling upon Maryland. Is that correct?
A Yes, sir.
Q Based upon your experience and knowledge of these guiding principles, Mr. Bryan, is it the custom and practice of the signatory members to this guiding principles to follow those principles which are set out there ?
A Yes, sir.”

In comparing the policy of appellant with that of Maryland, Mr Bryan testified:

“The Westchester’s policy insures against all risks of physical loss, subject to other provisions, whereas the Maryland’s policy insures against the legal liability of the insured, subject to other provisions. Note that the Westchester policy insures for damage to an object, whereas the Maryland policy insures the insured for his legal liability to others for property damage. In other words, the West-chester policy is a physical damage (direct coverage) policy where the first party is insured, whereas the Maryland’s policy is based on legal liability of the insured to pay property damage to third parties.
While the Westchester policy would pay simply because the insured object was damaged, the Maryland policy would not pay unless the insured was legally liable.”

On cross examination the attention of Mr. Bryon was directed to the fact that the Maryland policy contained a duty to defend clause whereas appellant’s policy did not, and regarding this he testified:

“Q I understood that Plaintiff’s Exhibit 13 represented an attempt by you to compare those policies and the obligations and liabilities each insurer undertook by the respective policies?
A Well, I did not compare every point in the respective policies. I did not compare the exclusions. In other words, I did not compare them right down to the letter, but what I figured was the highlights of the policy where you get your coverage.
Q Wouldn’t you consider an obligation to defend an insured an affirmative duty or obligation of the insurer rather than an exclusion?
A Yes, sir, it would be.
Q As a matter of fact, in the Maryland Casualty policy, Maryland Casualty in effect agreed to do two things, did it not, within the limits of the policy and subject to the terms thereof, it provided liability coverage for Mr. Rhoades and his truck line and secondly, it undertook an obligation to defend any suits that might be brought against Mr. Rhoades that seemingly were within the confines of the policy?
A Yes, sir.
Q And in Plaintiffs Exhibit No. 12, which is the Maryland policy in this case, in a typewritten endorsement attached to the policy, there is a separate paragraph 6 headed ‘Defense of Suits’ in which Maryland undertook this additional obligation, is there not?
A Well, like I say, I did not highlight this.
5}C * 5*S ⅜ * *
Q And as you consider the policy, the Maryland policy did expressly undertake that obligation to defend as a part of the policy?
A Yes, sir.
Q I hand you Plaintiff’s Exhibit No. 1, which is the Westchester policy, Mr. Bryan, and ask you if you find any similar provisions in that?
A No, sir, I do not find any such agreement to defend and in my opinion, the particular policy here would normally not have it.
Q It would normally not have it?
A Because it is a first party policy and normally, your claims are made by the insured against the insurance company, whereas in the Maryland policy, you have legal liability involved and are defending the insured against a third party.
Q You pointed out in that Plaintiff’s Exhibit 13, Mr. Bryan, a clear distinction that exists between a policy that is a legal liability policy like the Maryland Casualty one, and one which merely insures against physical damage to a specified object such as the Westchester policy?
A Yes, sir.
Q Isn’t this a fair summary of the two policies, Mr. Bryan, considered with respect to this gas compressor engine: the Westchester policy insured within the terms of the policy that gas compressor engine against physical damage; is that correct?
A All risk or physical loss.
Q And the Maryland Casualty policy would also apply, if I understand, if that engine had been damaged and would obligate Maryland Casualty to do two things: One, defend any suit that might be brought against Mr. Rhoades alleging that he was responsible for the damage, and two, stand behind him and back up his liability if he were found liable in that type of lawsuit?
A Yes, sir.
* * * * * *
Q You would not say that it was the duty of Westchester Fire Insurance Company to defend or to attempt to settle and negotiate the suit brought against Mr. Rhoades, would you?
A I would not think so, no.”

Notwithstanding this testimony of Mr. Bryan, appellees contend that under the following provisions of appellant’s policy it was obligated to negotiate or settle Desota’s claim against Rhoades:

“5. Settlement of Claims. All adjusted claims shall be paid or made good to the Insured within thirty (30) days after presentation and acceptance of satisfactory proof of interest and loss at the office of this company.
23. Impairment of Carriers Liability. Any act or agreement by the Insured, prior or subsequent hereto, whereby any right of the Insured to recover the full value of, or amount of damage to, any property lost or injured and insured hereunder, against any carrier, bailee or other party liable therefor, is released, impaired or lost, shall render this policy null and void, but the Insurer’s right to retain or recover the premium shall not be affected. This Company is not liable for any loss or damage which, without its consent has been settled or comprised (sic) by the Insured.”

Mainly, it seems to us, Sec. 23 pertains to actions which the insured may have against third parties for damage or loss to the insured property. The facts here do not activate these provisions. The last sentence of Section 23 if it refers to claims against the insured, as here, does not obligate the insurer to settle a claim against the insured it merely prohibits the insured from making a binding settlement on the insurer without its consent.

Appellees attempt to invoke the “Stowers” doctrine in this case, that is that appellant was obligated to negotiate in good faith a settlement of the Desota suit against Rhoades. The Stowers doctrine is inapplicable here because the claim asserted by Desota against Rhoades did not exceed the limits of liability of appellant as fixed by the policy issued Rhoades. Under the pleadings in that case no judgment could have been rendered against Rhoades in excess of his insurance coverage with appellant. In Stowers the insured was sued and judgment was obtained for more than the amount of the insurance.

We are unable to agree with appellees that appellant was under any duty to attempt in good faith to settle the Desota suit. It had the right to run any risk involved in letting Rhoades fend for himself.

Appellees cite American Fidelity and Casualty Co. v. All American Bus Lines, 190 F.2d 234 (10th Cir.) to support its contention that appellant was required to exercise good faith in negotiating a settlement of the Desota suit. In that case both insurance companies had the duty by contract to defend the insured. The liability of the primary insurer was limited to $10,-000.00 per person. The secondary insurer assumed liability of $10,000.00 to $100,000.-00 per person. This is a typical Stowers situation and the primary insurer was bound to exercise due care and good faith in attempting to settle the claim within the limits of its own liability.

Maryland’s policy was in excess of the amount of liability specified in appellant’s policy but, as stated, the claim asserted by Desota was not in excess of this sum.

Maryland honored its obligation to defend Rhoades and it made a successful defense. We cannot understand how Maryland can hold appellant for the cost of discharging this obligation. It voluntarily assumed this duty. Appellant did not.

How the liability for any judgment which Desota may have obtained against Rhoades should have been apportioned between appellant and Maryland is not before us since no judgment was obtained.

We hold, in accordance with the authorities above noted, that the obligation to defend is separate and distinct from the obligation to indemnify; the obligation to defend being personal cannot inure to the benefit of another insurer, especially where no duty to defend has been assumed by the company sought to be charged.

Appellees also contend that appellant is liable for the cost of defending Rhoades under the “Sue and Labor” clause contained in its policy which reads:

“Sue and Labor. In case of loss or damage, it shall be lawful and necessary for the Insured, his or their factors, servants and assigns, to sue, labor, and travel for, in and about the defense, safeguard and recovery of the property insured hereunder, or any part thereof without prejudice to this insurance; nor shall the acts of the Insured or this Company, in recovering, saving and preserving the property insured in case of loss or damage, be considered a waiver or an acceptance of abandonment to the charge whereof this Company will contribute according to the rate and quantity of the sum herein insured.”

Under footnote 11 in Reliance Ins. Co. v. The Escapade, (5th Cir., 1960) 280 F.2d 482, 488, 86 A.L.R.2d 1236, Judge Brown points out that the duty of the insured under the “Sue and Labor” clause is two-fold.

“It ‘is to (a) encourage and (b) bind the assured to take steps to prevent a threatened loss for which the underwriter would be liable if it occurred, and when a loss does occur to take steps to diminish the amount of the loss.’ White Star S. S. Co. v. North British & Mercantile Ins. Co., D.C.E.D.Mich.1943, 48 F.Supp. 808, 813, 1943 AMC 399, quoted with approval in Home Ins. Co. v. Ciconett, 6 Cir., 1950, 179 F.2d 892, 895. Its principal aim is clear. ‘Prevention of loss is the very obj ect in view. * * *

We believe the “Sue and Labor” clause relates only to safeguarding the “property insured.” It cannot, in our opinion, be converted into a promise to pay the costs of defending a suit brought against the insured by a third party to recover for damages to the property. The protection or preservation of the property insured is not involved in such litigation.

It is our opinion that appellees have failed to plead or prove a cause of action. It is accordingly ordered that the judgment of the trial court be reversed and judgment is here rendered that appellees take nothing by their suit.

Reversed and rendered.

      . This is a partnership composed of A. R. Cassard and D. L. Clark.

      . This word is loosely used. The policy is specific in fixing the time and place of coverage.

      . This agreement was admitted in evidence and provides:
      “1. Within three (3) days from the execution and delivery of this instrument, Cassard and Clark will dismiss Westchester from said Cause No. 126,-648 in the 126th District Court of Travis County, Texas, such dismissal to be with prejudice and to bar any further action or claim by Cassard and Clark or their assigns under said Policy No. IF 387,-228 for damages to said Worthington gas compressor engine.
      2. If Cassard and Clark obtain a final judgment in said Cause No. 126,648 in the 126th District Court of Travis County, Texas, or in any other cause that they may file against Jeff Miller Rhoades or in any other suit based on the same cause of action and actually collect less than Four Thousand Dollars ($4,000.-00) (exclusive of court costs and attorney’s fees), Westchester will pay to Cas-sard and Clark the difference between said amount and Four Thousand Dollars ($4,000.00). Otherwise Westchester shall have no liability hereunder.
      Cassard and Clark further agree to diligently prosecute their cause of action for damages~to the hereinabove, described Worthington gas compressor engine against Jeff Miller Rhoades d/b/a Rhoades Truck Line to final adjudication, including an appeal if there be a sound basis for such appeal. Upon voluntary payment, or upon final adjudication and the exhaustion of collection remedies by diligent efforts, Westchester will be obligated to make payment hereunder and will at such time become subrogated to any judgment or interest which Cassard and Clark may have against Jeff Miller Rhoades to the extent of such payment.”

      . Stowers Furniture Company v. American Indemnity Co., 15 S.W.2d 544, (Tex.Comm. of App.).

      . The “Guiding Principles” referred to supra, relate only to contribution to the “loss” where two or more companies are liable for the same loss.


author: PARKER, Justice.

text:
    Shirley A. KAUFMAN, Appellant, v. Louis S. MILLER, Appellee.
    No. 6813.
    Court of Civil Appeals of Texas. Beaumont.
    June 23, 1966.

      John H. Benckenstein, Beaumont, for appellant.
    John T. Lindsey, Port Arthur, Payton Covington, Lake Charles, La., for appellee.
   PARKER, Justice.

This is a common law damage suit for personal injuries brought by Louis S. Miller against Shirley A. Kaufman. The court submitted the case to the jury on special issues. Based upon the verdict of the jury, the court entered judgment in favor of the plaintiff Miller against the defendant Kaufman for $25,000.00. The plaintiff below, Miller, will be called plaintiff. The defendant below, Shirley A. Kaufman, will be called defendant.

This cause of action arose from a motor collision which occurred on the 15th day of July, 1961, on a clear day at 2:30 p. m. It occurred at the intersection of IH 10, sometimes known as Highway 90, and Pine Street within the City Limits of Beaumont, Texas, between an automobile driven by defendant and a motor truck of the Herring Transportation Company driven by the plaintiff. The motor truck was traveling east in the direction of Lake Charles on the outside or southern lane of said highway. It had the right-of-way. This was a two lane highway for east bound traffic. In the other east lane there was a car passing the truck. The automobile driven and operated by defendant was on an access road to IH 10 where it was her duty to yield the right-of-way to traffic on IH 10. She was on an easterly course and entered IH 10 without stopping, colliding with the rear portion of the trailer of said truck after the latter had crossed the intersection of said access road. The front portion of the truck was then upon the west approach to the Neches River bridge. After the impact, the defendant’s automobile was near the railing on the south side of the highway and the motor truck driven by the plaintiff was brought to a stop approximately 150 feet to the east of the point of contact of the vehicles. Plaintiff alleged that the defendant in the operation of her automobile at the time and on the occasion in question was guilty of acts of omission and commission, each being negligent and a direct and proximate cause of the collision and the resulting injuries and damages to plaintiff. Defendant answered by general denial, a plea of contributory negligence and a plea of unavoidable accident.

In answer to the special issues submitted to the jury, it found:

1. The defendant Shirley A. Kaufman at the time and immediately before the collision was not driving her automobile at a greater rate of speed than a person of ordinary prudence would have driven under the same or similar circumstances.
4. Shirley Kaufman as she approached the intersection of Pine Street with IH 10 failed to keep a proper lookout for the vehicle driven by plaintiff Louis S. Miller.
5. Such failure was a proximate cause of the injuries and damages suffered by the plaintiff Louis S. Miller.
6. Just prior to the collision Shirley Kaufman failed to stop her vehicle at the entrance to IH 10.
7. Such failure to stop was negligence.
8. Such failure to stop was the proximate cause of the injuries sustained by plaintiff Louis S. Miller.
9. At the time Shirley Kaufman’s car was at the entrance to IH 10 the truck driven by Louis S. Miller was so close as to constitute an immediate hazard.
10.Shirley Kaufman failed to yield the right-of-way to the plaintiff Louis S. Miller.
IOA. Such failure to yield the right-of-way was negligence.
IOB. Such negligence was a proximate cause of the collision in question.
11. Louis - S. Miller sustained injuries to his person as a direct and proximate result of the collision in question.
12. Louis S. Miller’s injuries are not solely the result of prior injuries existing before July IS, 1961.
13. Louis S. Miller immediately before the collision in question did not fail • to keep a proper lookout.
15. Louis S. Miller immediately before the collision in question did fail to give an audible warning with his horn.
16. Such failure of Louis S. Miller to give an audible warning with his horn was not negligence.
18. Just before the collision in question Louis S. Miller did not turn the truck into the right lane at a time when such movement could not be made in safety.
21. Louis S. Miller failed to turn his truck to the left immediately before the collision in question.
22. Such failure to turn his truck was not negligence.
24. The finding was “we do not” to the following issue:
Do you find from a preponderance of the evidence that Louis S. Miller immediately before the collision in question failed to make such application of the brakes on his truck and trailer that would have been made by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances.
26. The accident in question was not the result of an unavoidable accident.
27. Shirley Kaufman at the time and occasion in question failed to apply her brakes as timely as a reasonably prudent person would do under the same or similar circumstances.
28. Such failure to apply her brakes was a proximate cause of the collision in question.
29. Louis Miller sustained compensation neurosis as a direct and proximate result of the collision in question.
30. The sum of money which would fairly and reasonably compensate Louis Miller for his injuries and damages was $25,000.00.

Special issues 2, 3, 14, 17, 19, 20, 23 and 25 having been conditionally submitted, were not answered.

The trial court refused to give defendant’s requested special issues Nos. 6, 7 and 8 as follows:

“6. Do you find from a preponderance of the evidence that on the occasion in question Plaintiff, Louis Miller, was operating his truck and trailer while in a state of fatigue?
“You are instructed by the phrase ‘state of fatigue’ is meant to become weary, tired or exhausted from labor, toil or exertion of any kind.
“Answer ‘we do’ or ‘we do not’.”
“7. If you have answered Special Issue No. - ‘we do’, and only in that event, then answer:
“Do you find from a preponderance of the evidence that Plaintiff’s operation of his motor vehicle on the occasion in question while in a state of fatigue, if you have so found, was negligence?
“Answer ‘we do’ or ‘we do not’.”
“8. If you have answered Special Issue No. - ‘we do’, and only in that event, then answer:
“Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the collision in question ?
“Answer ‘we do’ or ‘we do not’.”

Defendant alleged contributory negligence in the following language:

“ * * * On the occasion in question the plaintiff, Louis S. Miller, was guilty of acts, wrongs and omissions, all amounting to negligence which proximately caused and brought about said collision ‘and the plaintiff’s injuries and damages, if any.’”

The evidence is that plaintiff Miller left Lake Charles, Louisiana, at 4:00 a. m. en route to Texas City, Texas, with a tank of caustic soda. This load was discharged at destination. Then Miller had lunch in Texas City. The collision occurred about 2:30 p. m. Prior to the collision he had stopped for refreshment. He had been driving continuously some three hours before the collision occurred. One of defendant’s witnesses testified that the plaintiff did not appear to be dazed after the collision. There was no evidence, direct or circumstantial, to indicate that the plaintiff was operating his. truck while in a state of fatigue or exhaustion.

It was not error for the trial court to refuse to submit such issues for the additional reason that such issues were not ultimate issues. The fact that a person might drive his automobile while in a state of fatigue could not constitute negligence per se. Also, driving an automobile while in a state of fatigue could not in itself be a proximate cause of a collision unless the fatigue resulted in some act of omission or commission which proximately caused the collision. Defendant’s points of error contending that her requested special issues 6, 7 and 8 should have been submitted to the jury are each and all overruled.

After this accident, plaintiff straightened out his truck and stopped. He knew there was a collision from looking in his rear view mirror. He was able to keep the truck under control and stop. He was a little bruised up. The truck he was driving was a tank truck and trailer, weighing some 13,000 pounds. He was hauling chemicals. This was the load he ordinarily carried except when he carried flammable gasoline.

The testimony reflects that plaintiff began suffering with spells of dizziness, blackout spells and nervousness shortly after the collision in question. Such spells he had never had before this accident. He had been driving such trucks for years. Two months after this collision, plaintiff’s condition was such that he could no longer drive trucks and he submitted himself for treatment to various doctors. Dr. Lathrop, a psychiatrist at New Orleans, Louisiana, testified that the plaintiff developed these symptoms as a result of the collision in question; that he suffered a conversion reaction which developed into a neurosis. This, in his opinion, resulted from the collision of July 15, 1961. Dr. Lathrop described the personality of plaintiff as that of a nice, quiet, kind, gentle person who would never “hurt a fly”; that for such a person to hurt any living thing is a frightening experience. In his opinion plaintiff was suffering from “compensation neurosis” directly connected with and as a result of the accident of July 15, 1961 ; that it was not to be confused with malingering, where an individual deliberately tries to imitate an illness for the purpose of gaining compensation; that compensation neurosis is not an intentional or deliberate thing on the part of a person; that the person is suffering from a mental condition that is being transferred into physical aches or illnesses as real to that person as .though the injury had been initially to other portions of the person than the mind itself. Dr. Lathrop testified there was a causal relationship between the accident and plaintiff’s incapacity to drive; that before the accident he was able to drive and after the accident he became unable to drive. His exact language is :•' “This is a fact as far as I am concerned.”

The testimony of Dr. Lathrop was consistent and corroborative with the testimony of plaintiff and that of plaintiff’s wife that the spells of dizziness, black-out spells and the nervousness did not exist prior to the accident in question but began shortly following the accident, ultimately and conclusively disqualifying and incapacitating plaintiff from driving trucks upon the public highway.

Defendant contends that the plaintiff, Louis S. Miller, did not sustain that character of personal injury which is com-pensable under the laws of the State of Texas regulating common law actions for damages based upon negligence. In Houston Electric Co. v. Dorsett, 145 Tex. 95, 194 S.W.2d 546 (1946) the petitioner in that case contended that respondent had not alleged a cause of action, principally for the following reasons:

“(1) Petitioner’s bus did not come in contact with respondent, and she seeks to recover damages for fright, and under the law petitioner is not liable for damages caused by fright; (2) the damages claimed were too remote and speculative to permit a recovery thereon; (3) the alleged simple negligence of the bus driver could not have been a proximate cause of any damage; (4) the damage claimed by respondent was not, as a matter of law, foreseeable; and (5) no facts were alleged showing respondent sustained any physical injury, and her claim for damages rests solely upon the ground of fright and shock. The trial court sustained the exceptions urged by petitioner.”

In that decision the Supreme Court of Texas held that a recovery may be had where a physical injury results from fright or other mental shock, caused by wrongful act or omission of another, provided the act or omission is the proximate cause of injury and the injury ought, in light of all the circumstances, to have been foreseen as a natural and probable consequence thereof. It followed the doctrine announced in previous Supreme Court decisions of this State in the following language:

“In 1900 this Court, in the case of Gulf, C. & S. F. Railway Co. v. Hayter, 93 Tex. 239, 54 S.W. 944, 945, 47 L.R.A. 325, 77 Am.St.Rep. 856, reviewed the decisions in conflict lipón this question, and reaffirmed the doctrine announced in Hill v. Kimball [76 Tex. 210, 13 S.W. 59, 7 L.R.A. 618], supra, and in that case Chief Justice Gaines sáid:
“ ‘We conclude that, where a physical injury results from a fright or other mental shock, caused by the wrongful act or omission of another, the injured party is entitled to recover his damages, provided the act or omission is the proximate cause of the injury, and the injury ought, in the light of all the circumstances, to have been foreseen as a natural and probable consequence thereof. In our opinion, as a general rule, these questions should be left to the determination of the jury.’ ”

Defendant’s contentions in this case are similar to the petitioner’s in Houston Electric Co. v. Dorsett, supra. The jury findings in this case are against defendant’s contentions. Defendant argues at length from the North Carolina case of Williamson v. Bennett, 251 N.C. 498, 112 S.E.2d 48. The decisions cited in Houston Electric Co. v. Dorsett, supra, are controlling here.

In Bailey v. American General Ins. Co., 154 Tex. 430, 279 S.W.2d 315 (1955) the principles announced in the previous opinions of Gulf, C. & S. F. Railway Co. v. Hayter, 93 Tex. 239, 54 S.W. 944; Houston Electric Co. v. Dorsett, supra, were approved and language in Gulf C. & S. F. Railway Co. v. Hayter quoted below approved :

“On appeal, this Court affirmed the lower courts, saying [93 Tex. 239, 54 S.W. 945] : ‘But, in the light of modern science, — nay, in the light of. common knowledge, — can a court say, as a matter of law, that a strong mental emotion may not produce in the subject bodily or mental injury?’ * * * We conclude that, where a physical injury results from a fright or other mental shock, caused by the wrongful act or omission of another, the injured party is entitled to recover his damages. * * * ”

The character of personal injury sustained by plaintiff is compensable under the laws of Texas regulating common law actions for damages based upon negligence.

Defendant contends the finding of the jury fixing damages to plaintiff in the amount of $25,000.00 is excessive. On July 15, 1961 plaintiff was 31 years of age. His employer was paying him $150.00 a week. He continued to drive his truck from July 15, 1961 to May, 1962. He did not work for about a year. Then he obtained employment for a dairy farm at $40.00 a week. He worked for a service station in November of 1963 at the rate of $50.00 a week for a 12-15 hour day. At the time of trial he was working as a helper for a milk truck driver at $300.00 a month. The evidence shows diminution of his earning capacity. He had been instructed by several doctors not to drive a truck any longer. He had to accept jobs which paid less money. There is nothing in the jury’s verdict finding $25,000.00 damages to indicate prejudice on the part of the jury or that it was grossly excessive. The amount does not shock the conscience. This point of error is overruled.

In considering the “no evidence” contentions on the part of defendant that the various findings of the jury are not supported by any evidence, that part of the record most favorable to plaintiff is controlling and defendant’s contentions are overruled.

In considering defendant’s points of error contending that certain jury findings are contrary to the great weight and preponderance of the evidence, the entire record and all evidence is reviewed and each and all of such points of error are overruled.

Defendant contends there was misconduct of the jury prejudicial to the rights of defendant as the jury received dictionary definitions of words used in the special issues and the court’s charge. Defendant further contends that during their deliberations, the foreman read them to the jurors, and such definitions were fully discussed and used by them in answering such special issues — all in violation of the instructions and admonitions of the court. The only dictionary definition quoted upon the motion for new trial was of the word “proximate”. The definition was “near” or “immediately following” or “immediately preceding”. The term “proximate cause” was a matter of concern to the jury. There is nothing in the definition of the word “proximate” read to the jury shown to have been prejudicial to the defendant. There was no probative evidence that any definition of “proximate cause” was produced before the jury after it retired to consider its verdict other than that contained in the charge of the court. The words “neurosis” and “negligence” were also looked up in dictionaries but the evidence upon the motion for new trial reflects that no juror remembered the definitions in the dictionary of such words. Jury misconduct was established, as jurors are not permitted to use dictionaries in order to secure definitions for words used in the court’s charge. However, under Texas Rules of Civil Procedure, rule 327 defendant had the burden of establishing to the satisfaction of the court that it “reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to him.” St. Louis Southwestern Railway Co. v. Gregory, 387 S.W.2d 27 (S.Ct.1965). Defendant has not attempted to demonstrate any such injury, and we do not conclude as a matter of law that such injury resulted. Davis v. Damge, Tex.Civ.App., 328 S.W.2d 203.

Defendant further contends that there was jury misconduct in that unidentified jurors stated to the juror, Jostes, that affirmative answers to special issues 16 and 24 were immaterial as plaintiff would be awarded damages regardless of how such issues were answered. Special issues 16 and 24 were contributory negligence issues in reference to the failure of plaintiff to sound his horn and apply his brakes. The jury found no negligence in such failures. The jurors, Barnes and Jostes, testified that some such statement was made. They believed some such discussion was had. The juror, Naugle, denied that any such statement was made. The juror, Wright, denied hearing any such statement or discussion. After hearing on defendant’s motion for new trial, the trial court overruled it. No findings of fact thereon were made by the trial court. The testimony is not clear. The evidence does not conclusively show that the misconduct occurred. This court must presume from the order overruling the motion for new trial, that the trial court found that such jury misconduct did not occur. Milstead v. Aynesworth, 341 S.W.2d 942 (Tex.Civ.App.1961), ref. n. r. e.

Under the jury findings the defendant failed to keep a proper lookout, failed to stop her vehicle at the entrance of IH 10 and failed to yield the right-of-way.to the plaintiff. Further, the jury found that at the time defendant’s car was at the entrance of IH 10, the truck driven by plaintiff was so close as to constitute án immediate hazard. Findings in connection with such issues were made of proximate cause and negligence.

Defendant admitted that when she first saw the cab of the tractor it was in front of her in the south lane of the highway, the lane nearest to the access road she was about to leave. It is undisputed that she struck the back tandem tire of the trailer some 30 feet to the rear of the cab. She admitted she was travelling 20 to 30 miles per hour. Plaintiff saw defendant’s automobile as it was approaching the highway on the access road, observing nothing to indicate that defendant was not going to stop or yield before entering the highway. Plaintiff, as a matter of law under these circumstances, was under no duty to sound his horn or apply his brakes. The only pleading of defendant was a general pleading of contributory negligence and there is no pleading of discovered peril on the part of defendant. Certainly, under the facts, discovered peril is not in this case. No issues were requested on such theory. Plaintiff was not required under the law to assume that defendant would violate the law by entering the highway and running into the rear of his vehicle. So, he had no duty to sound his horn or put on his brakes. § 73(a) and (b) and § 133(a), Art. 6701d, Vernon’s Ann.Rev.Civ.St.Tex. As a matter of law under the circumstances there was no evidence to support a jury finding of negligence in either special issue 16 or 24. Minugh v. Royal Crown Bottling Co., Tex.Civ.App., 267 S.W.2d 861, 864, error refused; Muse v. McWilliams, 295 S.W.2d 680, (Tex.Civ.App.1956) reversed on other grounds, 157 Tex. 109, 300 S.W.2d 643, and cases cited therein on page 686. Had there been affirmative answers to such issues, they would have been properly disregarded by the court and judgment entered in defendant’s favor accordingly. The points of error relating to jury misconduct are overruled under authority of T.R.C.P. rules 327 and 434, and St. Louis Southwestern Railway Co. v. Gregory, 387 S.W.2d 27 (S.Ct.1965).

The judgment of the trial court is affirmed.