author: BARROW, Justice.

text:
    Walter J. LEVERMANN et al., Appellants, v. L. M. CARTALL et al., Appellees.
    No. 14377.
    Court of Civil Appeals of Texas. San Antonio.
    July 21, 1965.

      Morriss, Boatwright, Lewis & Davis, San Antonio, for appellants.
    Groce, Hebdon, Fahey & Smith, San Antonio, for appellees.
   BARROW, Justice.

This is a malpractice case. Appellants, Walter J. Levermann and wife, Mary D. Levermann, brought two suits, individually and as next friends for their minor son, Larry Dean, seeking damages from appel-lees, Dr. L. M. Cartall and Dr. H. E. New-by, for the alleged negligence of each in failing to properly diagnose and treat a subdural hematoma sustained by the ten-month-old baby in a fall from a highchair. These two suits were consolidated. It was stipulated that appellees, who were both general practitioners of medicine in Del Rio, were partners at all relevant times. The jury did not find that either of the defendants was negligent in his diagnosis or treatment of the minor, and a take-nothing judgment was entered on this jury verdict.

Appellants seek a reversal and assert that the trial court erred in the following respects : (a) in failing to permit the voir dire examination of each prospective juror to be conducted separate and apart from the panel; (b) in not excusing three jurors for cause, or granting appellants three additional peremptory challenges; (c) for inclusion of an improper and prejudicial instruction in the charge; (d) because of prejudicial argument of appellees’ counsel; and (e) in its erroneous admission and exclusion of testimony.

Appellees assert by counterpoint that these points, even if asserting error, are immaterial in that appellants failed to show that any negligent failure on their part to diagnose and treat the subdural hemotoma was a proximate cause of any injuries suffered by appellants. The applicable rule in malpractice cases was stated by the Supreme Court in Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782, 13 A.L.R.2d 1, as follows:

“It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries.”

Appellees’ counterpoint presents a “no evidence” point and requires us to review the record in the light most favorable to appellants. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126; White v. White, 141 Tex. 328, 172 S.W.2d 295.

About 6:30 p. m. on Tuesday, July 19, 1960, Larry was standing in his highchair, which was twenty-one inches high, when it turned over. He cried very violently for fifteen or twenty minutes after this fall and several times during that night. There were bruises on his left hip and left forehead, which were visible several days. The next afternoon he vomited after returning home from a birthday party. Mrs. Lever-mann testified that after Larry vomited she telephoned Dr. Cartall, who told her that children fall all the time, and that the boy probably had an upset stomach. He gave her a prescription which was given the baby. Larry was very restless that night and after he vomited again late the following day Mrs. Levermann took him to Dr. Cartall. He examined the baby and said all he could find was a red throat, and gave a prescription for it. By Friday, July 22, Larry was weak and could not keep anything on his stomach. Dr. Cartall was telephoned again and he sent suppositories to control the vomiting. On Saturday, July 23, Larry’s eyes crossed, with his left eye turning in. They had never crossed before; they remained crossed until August 3, when Dr. Munslow performed an operation and removed fluid from the child’s brain. Dr. Cartall came by appellants’ home on Saturday morning and after examining Larry said that he was teething.

On Saturday night, July 23, Dr. Newby, who was Larry’s regular doctor, returned from out of the city. He was telephoned by Mrs. Levermann and advised of Larry’s fall, his drowsiness, vomiting and the medications given by Dr. Cartall. On Sunday morning Dr. Newby came to appellants’ borne in response to Mrs. Levermann’s telephone call, and, after examining Larry and again being advised of the history, including the fall, said that Larry probably had a virus and was dehydrated. Larry was placed in the hospital where he remained until Tuesday, July 26. Dr. Newby told Mrs. Levermann that Larry’s crossed eyes were probably a result of his weakened condition. He vomited again on the 27th and Dr. Newby sent medicine to quiet the child’s stomach. Mrs. Levermann telephoned Dr. Cartall again on the 27th and he said the history sounded like a deep-seated virus and the treatment of Dr. Newby was proper. On July 28 or 29, Mrs. Levermann again called Dr. Newby who advised continuation of the prescribed medication. On July 31 she called Dr. Cartall and requested the recommendation of a clinic to treat the child. Dr. Cartall suggested that she see a pediatrician in San Antonio.

Shortly thereafter, she wrote down a full history, including the fall, and telephoned Dr. Dimmitt of Uvalde, who had formerly been their family physician. He recommended that the boy be immediately taken to San Antonio and seen by Dr. Mun'slów. This was done on Sunday, July 31. Dr. Munslow examined the boy and on August 1 did a bilateral subdural tap and removed 90 cc, of fluid from his brain. On August 3, Dr. Munslow performed an operation and cleaned out the subdural hematoma, and Larry was dismissed three days later.

Several months later, Larry started having trouble with his left eye turning out, and was treated by an eye specialist, Dr. Frink, of McAllen. He performed an operation, but the boy still has trouble with his left eye and has little vision in same.

Appellees assume in this counterpoint that there is sufficient evidence to support a jury finding of negligence in their not discovering and treating the subdural hema-toma, but urge there is no evidence to show that any damage was done by this delay.

Dr. Hogan, an eye specialist, testified that Larry has suffered nearly a total loss of vision in the left eye and gave the following reasons for the disability:

“Q. Now Doctor, bearing the facts that I have related to you in mind,1 want to ask you whether or not you have an opinion as to the reasonable medical probability of whether the damage found to the left eye is due to long continued intracranial pressure, due to the subdural hematoma?
A. I believe that.
Q. That is your opinion ?
A. This the most probable.
Q. And is it or not your opinion that in reasonable medical probability that long continued unrelieved in-tracranial pressure due to the sub-dural hematoma is what caused the loss of the sight of the eye, the left eye, rather than damage due to—I mean damage at the time of the fall?
A. That is most probable.”

Dr. Terrell, a McAllen pediatrician, who had examined Larry about eight months before the fall, testified that Larry’s eyes were normal at that time. Dr. Dimmitt, a general practitioner of Uvalde, testified that a general practitioner of this area should have recognized from Larry’s symptoms that there was intracranial pressure and that appellees had not exercised the standard of care in this case of an average general practitioner in this area.

The evidence, when viewed most favorably to appellants, amounts to more than a scintilla that the delay in diagnosis and in relieving the intracranial pressure was a proximate cause of some damage sustained to Larry’s left eye. Appellees’ counterpoint is overruled.

The trial court properly defined “negligence” as the failure to use “ordinary care,” which is the use of that degree of care “which medical doctors of ordinary knowledge and skill, engaged in the general practice of medicine in Del Rio and the general vicinity thereof, would use in the diagnosis and treatment of the patients under the same or similar circumstances.” Bowles v. Bourdon, supra. This definition was followed by a standard definition of “proximate cause.” Following this definition was the instruction complained of by appellants: “You are further instructed as a part of the law of this case, that a medical doctor is not an insurer or guarantor of his work; neither is he responsible in law for an honest mistake in judgment, unless such mistake is due to a want of ordinary care, as the term ‘ordinary care’ has been defined hereinbefore.”

Appellants objected to this instruction as being a general charge, being on the weight of the evidence, informing the jury of the legal effect of an honest mistake in judgment, being without support in the pleadings or evidence, and because no issue of honest mistake was submitted in the charge.

It is our opinion that this instruction was improperly included in the court’s charge, and that the court erred in overruling appellants’ objections. The only function of an explanatory instruction in .the charge is to aid and assist the jury in answering the issues submitted. Rule 277, Texas Rules of Civil Procedure; Hodges, Special Issue Submission in Texas, pp. 29-30; McDonald, Texas Civil Practice, § 12.-14. This instruction did not refer to any particular issue or term used in the charge and could only be considered by the jury as applying to the case as a whole. It was not necessary to assist the jury in answering any issue. There was no pleading or evidence of “honest mistake.” The giving of this instruction was clearly improper. Whether or not this error amounted to such a denial of the rights of appellants as was reasonably calculated to cause and probably did cause the rendition of an improper judgment and thereby entitle appellants to a retrial under Rule 434, T.R.C.P., presents a more difficult question.

It is seen that the adoption of Rule 277, supra, gave the trial judge greater latitude in the submission of definitions and instructions than that permitted under Art. 2189, R.C.S., in that the rule specifically permits the giving of such “explanatory instructions” as shall be necessary to enable the jury to properly pass upon and render a verdict on the submitted issues, and provides, “in such instances the charge shall not be subject to the objection that it is a general charge.”

The rule was considered by the Supreme Court in Boaz v. White’s Auto Store, 141 Tex. 366, 172 S.W.2d 481 (1943). After recognizing the greater latitude given the trial judge, it was said: “However, the rule does not authorize the giving of an instruction which is not 'necessary to enable the jury to properly pass upon and render a verdict on such issues’; and which is calculated to prejudice one of the parties before the jury.” It was thus held to require a remand where the trial court instructed the jury that the party was negligent in driving in excess of 25 M.P.H.

In Farias v. Gaitan, Tex.Civ.App., 312 S.W.2d 273, wr. ref., n. r. e., this Court held it to be reversible error for the trial court to instruct the jury that defendant’s conduct was a violation of a statute, and negligence. In Roberts v. Bush, Tex.Civ.App., 352 S.W.2d 337, wr. ref., n. r. e., it was held to be reversible error to instruct the jury that a person who has testamentary capacity and who is not unduly influenced may dispose of his property by will as he desires. A similar instruction was held improper by the Supreme Court in the recent case of Lindley v. Lindley, 384 S.W.2d 676 (1964), although the case was reversed and remanded for other reasons. See also, Dial Temp Air Conditioning Co. v. Faulhaber, Tex.Civ.App., 340 S.W.2d 82, wr. ref., n. r. e.

The applicable rule is that an instruction which is not necessary to enable the jury to properly pass upon the issues is improper and may be so prejudicial to one of the parties as to require a retrial. Boaz v. White’s Auto Store, supra. Appellees urge, and we agree, that this instruction is a correct statement of law, in that generally a medical doctor is not an insurer or guarantor of his work. Graham v. Gautier, 21 Tex. 111, 112; Henderson v. Mason, Tex.Civ.App., 386 S.W.2d 879, no wr. hist.; Shockley v. Payne, Tex.Civ.App., 348 S.W.2d 775, wr. ref., n. r. e.; Gifford v. Howell, Tex.Civ.App., 119 S.W.2d 578, wr. dism.; Turner v. Stoker, Tex.Civ.App., 289 S.W. 190, wr. ref.; 45 Tex.Jur.2d, Physicians and Other Healers, § 120. It is seen that in each of the cases in the preceding paragraph the instruction found to have been improperly included in the court’s charge was a correct rule of law.

To determine the probable effect of this improper instruction, we have examined the entire record. It is seen that the issue of negligence was sharply contested. The crucial fact was whether or not appellants told either or both of the appellee doctors of Larry’s fall from the highchair. Each of appellees testified that he would have made a neurological exam if he had known of this history. Each denied that he was told of this fall, and the Del Rio hospital record of Larry’s confinement from July 24 to 26 corroborates them, in that although a full history is set forth, it makes no mention of a fall or any complaint relating to same. They are also Corroborated by the fact that in a telephone call by Mrs. Levermann to Dr. Frink in McAllen on July 27, there was no mention of the fall in her history to him. Dr. Munslow, neurosurgeon, testified that a subdural hematoma is hard to diagnose quickly, and is very rare in head injuries. Under the testimony of all medical witnesses in this case, most of the symptoms Larry had while under the care of appellees are those of a child suffering from a virus infection. There was evidence that the “crossing” of the left eye appeared to be only a “slight” deviation which is not uncommon in infants of Larry’s age.

On the other hand, Mr. and Mrs. Lever-mann each testified unequivocally that each of the appellee doctors was told of Larry’s fall several times during the time appellees were treating Larry, and testified that they inquired specifically of each doctor as to whether the turning in of Larry’s left eye was related to his fall. Furthermore, it is seen that in the initial conversation with Dr. Dimmitt on July 31, Mrs. Levermann related the fall as a significant item in the history of his case.

It is our opinion, from the entire record, that the instruction that appellees were not insurers or guarantors of their diagnosis or treatment was prejudicial to appellants. The only issues which concerned the jury were whether or not appellees had exercised that degree of care in the diagnosis and treatment of Larry which other general practitioners in this area would use under the same or similar circumstances. With the evidence sharply conflicting on these issues, it is our opinion that this additional instruction by the trial court, that appellees were not insurers or guarantors, was a comment on the case as a whole, in that it related to the care to be exercised by appellees and was reasonably calculated to cause and probably did cause prejudicial harm to appellants so as to require a remand of the case.

In view of a remand, we will only pass upon those questions assigned by appellants as error which are likely to recur upon a retrial.

The argument of counsel must be confined to a discussion of the evidence introduced and counsel may not state their personal opinion of the qualifications of the appellees. Texas Sand Co. v. Shield, 381 S.W.2d 48 (Tex.1964). Further, it is improper to appeal to prejudice by referring to the adverse effect a judgment would have upon the community’s need for additional doctors.

It is our opinion that the trial court did not abuse its discretion in overruling appellants’ motion to examine the members of the jury panel individually, out of the presence and hearing of the others. The Texas Rules of Civil Procedure are silent on the manner of conducting the voir dire examination, and it has been held that the extent of same is largely within the trial court’s discretion. Lubbock Bus Co. v. Pearson, Tex.Civ.App., 277 S.W.2d 186, wr. ref., n. r. e.; Fort Worth & D. C. Ry. Co. v. Kiel, Tex.Civ.App., 195 S.W.2d 405, wr. ref. Appellants’ motion was based upon the wide and favorable acquaintance of appellees in Val Verde County and the adverse effect upon the entire panel by various jurors stating their relationship to appellees on voir dire. It occurs to us that such a proposition could be asserted in almost all cases being tried in other than a metropolitan area. In our opinion it would be a backward step in the administration of justice to hold as a matter of law that the voir dire examination must be conducted in these instances as suggested by appellants.

We have examined appellants’ points complaining of the admission and exclusion of testimony and find no error in same. Dr. Munslow was qualified to testify to the knowledge and experience of general practitioners in this general area and as to their diagnosis and treatment of subdural hematomas. The testimony of Mrs. Levermann as to her conversation with Dr. Frink of July 27 was admissible as an admission against her interest on the vital issue of whether the fall was a significant part of Larry’s medical history during the time in which appellees were allegedly told by her of the fall. Dr. Dimmitt was permitted to testify to the history given him by Mrs. Levermann, but the trial court correctly refused to permit him to bolster her testimony by testifying to what she told him.

The judgment of the trial court is reversed and the cause remanded for another trial.

      . The hypothetical question as related by counsel contained substantially the same facts as heretofore set forth.


source: Caselaw Access Project

author: TIREY, Justice.

license: Public Domain

text:
    Robert HANEY, Appellant, v. Roy W. LOGAN, Appellee.
    No. 4414.
    Court of Civil Appeals of Texas. Waco.
    Sept. 2, 1965.
    Rehearing Denied Sept. 23, 1965.
    Travis Smith, Bill Prewett, Corpus Christi, for appellant.
    Trimble & Dobbs, Corpus Christi, for ap-pellee.
   TIREY, Justice.

Plaintiff brought action on a note described as follows:

“$5,000.00
24, 1963
•-, after date, for value received, I, Roy W. Logan, promise to pay to the order of Robert Haney, Five Thousand ($5,000.00) Dollars at Corpus Christi, Texas with 6 per cent interest per annum from June 24, 1963 until paid. All past due principal and interest shall bear interest at the rate of 6 per cent per annum until paid. In the event default is made in the payment of this note at the maturity and, it is place in the hands of an attorney for collection, or suit is brought on the same, or same is collected through Probate or Bankruptcy proceedings then_agree that an additional amount of ten per cent on the principal and interest of this note shall be added to the same as collection fees.
“Due June 24, 1964
Secured only by note made to Roy W. Logan by P.A.S. of the same date (Sig.) Roy W. Logan ”
Address 362 Meldo Park Corpus Christi, Texas

The cause was tried without the aid of a jury and the Court entered judgment that plaintiff take nothing, and he perfected his appeal to the Corpus Christi Court and the cause is here on transfer.

Plaintiff requested the Court to make Findings of Fact and Conclusions of Law. In response, the Court filed extensive Findings of Fact and Conclusions of Law. The 14th Finding is as follows:

“There was no consideration to Defendant for the execution and delivery by him of the instrument dated June 24, 1963, which is made the basis of Plaintiff’s claim.”

Since we are of the view that the evidence is ample to sustain this Finding of the Court, it is not necessary to consider any of the other Findings.

Section 28 of Art. S933 V.A.T.S. provides :

“Absence or failure of consideration is matter of defense as against any person not a holder in due course; and partial, failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.”

Since the record is without dispute that plaintiff is not a holder for value in due course, and since the evidence is ample to sustain the finding of the trial court that there was no consideration for the execution of the instrument sued upon, there is no liability on the part of defendant to plaintiff, and further discussion of this question would be of no avail.

It is true that the burden of proving failure of consideration is upon the pleader, and it is our view that the pleader has carried this burden. See Winters, Petitioner v. Langdeau, Receiver of State National Life Ins. Co., 360 S.W.2d 515, Sup.Ct., pt. 1. See also Central National Bank of Waco v. Lawson, Tex.Civ.App., 7 S.W.2d 915, 27 S.W.2d 125, opinion by Commission of Appeals.

Therefore, all the points raised by appellant are overruled, and the judgment of the trial court is affirmed.

      . Perhaps we should state that no appeal or right of review exists for one whose motion for summary judgment is denied. See Archer v. Skelly Oil Co., Tex.Civ.App., 314 S.W.2d 655, er. ref. See 159 Tex. 154, 317 S.W.2d 47. It follows that all of appellant’s points attacking the Court’s failure to enter summary judgment in his behalf are without any merit whatsoever.


author: WERLEIN, Justice.

text:
    NATIONAL UNION FIRE INSURANCE COMPANY, Appellant, v. Leon Talmadge COX et ux., Appellees.
    No. 14612.
    Court of Civil Appeals of Texas. Houston.
    Sept. 16, 1965.

      Bryan & Patton, Chilton Bryan, Julietta Jarvis, Houston, for appellant.
    Barker & Barker, Elmo Schwab, Jr., Galveston, for appellees.
   WERLEIN, Justice.

Appellees sued appellant upon an insurance policy issued to them by appellant to recover damages caused to their home in Texas City, Galveston County, Texas, by the winds and waters which attended Hurricane Carla. The court rendered judgment on the jury verdict in favor of appellees in the sum of $5,822.75, less $100.00 deductible provided in the policy. From such judgment appellant has appealed, assigning numerous errors.

The original policy which was issued by appellant on or about December 19, 1956, contained certain exclusions applicable to loss resulting from windstorm, hurricane and hail. On January 1, 1959, certain sections of the original policy were eliminated by a Physical Loss Form, or rider, which became a part of the policy. Exclusion “C” under Section II of such form or rider was substituted for the exclusion clause as originally written in the policy. It excludes from coverage: “Loss by earthquake, surface waters, flood waters, waves, tide or tidal wave, high water, or overflow of streams or bodies of water, all whether driven by wind or not, or whether caused by or attributable to earthquake; * *

It is thus seen that the provision in the original policy to the effect that the company shall not be liable for loss to the interior of the dwelling caused by rain, whether wind-driven or not, unless the wind or hail first makes an opening in the walls or roof of the building, and rain immediately enters therein through such openings, was completely eliminated. Appellant pled the exclusions as contained in Exclusion II C of the rider.

The case was tried before the decisions of the Supreme Court were handed down in Paulson et ux. v. Fire Insurance Exchange, Tex., 393 S.W.2d 316 and Hardware Dealers Mutual Fire Insurance Company v. Berglund et ux., Tex., 393 S.W.2d 309. The special issues submitted by the court indicate that the case was tried upon two theories, namely, (1) that appellant was liable for all damage caused by the hurricane, and (2) that appellant was liable for the loss sustained to appellees’ residence as a direct result of wind and of wind-driven rain, or hurricane-driven rain proximately caused by Hurricane Carla. Special Issue No. 4 reads:

“What do you find from a preponderance of the evidence to be the reasonable cost for repairing all of the damage, if any, with material of like kind and quality within a reasonable time after such loss, if any, sustained by the residence of Leon Talmadge Cox as a direct result of Hurricane Carla in September of 1961?
“By the phrase ‘all of the damage,’ as used in this Special Issue, is meant all of the damage, if any, which you have found to have been proximately caused by the perils of windstorm or hurricane to the residence of Leon Talmadge Cox on September 10, 11, and 12, 1961.”

To this issue the jury found $6,112.75.

Special Issue No. 5 reads:

“What do you find from a preponderance of the evidence to be the reasonable cost for repairing the damage, if any, with material of like kind and quality within a reasonable time after such loss, if any, sustained by the residence of Leon Talmadge Cox as a direct result of the wind and of wind-driven rain, or hurricane-driven rain proximately caused by Hurricane Carla in September of 1961?”

To this issue the jury answered $5,822.75. It appears that the court rendered its judgment on the jury finding to Special Issue No. 5, since judgment was entered in the sum of $5,822.75, less the $100.00 deductible, plus interest.

Appellant complains that the court erred in overruling its motion for judgment non obstante veredicto and motion for new trial, since there was no finding segregating the damage caused by the wind and rain covered under the policy from damage caused by water excluded under the policy. A plaintiff is not required to plead that the loss resulted from a cause not excluded by the policy, since Rule 94, Texas Rules of Civil Procedure, places the duty upon the insurance carrier to plead the exclusions it relies upon. Our Supreme Court has made it clear, however, that when this is done, the burden of proving that the loss has resulted from a risk covered by the policy and not a risk within the exclusions of the policy, rests upon the insured. The question arises, therefore, as to whether ap-pellees discharged their burden of proving and obtaining a jury finding that the damage to the property resulted from a risk covered by the policy and did not result in whole or part from a risk within the exclusion clauses of the policy. Appellant requested various issues in an effort to determine which damage was caused by risks within the terms of the policy and which damage was caused by risks within the exclusion clauses of the policy, but such issues were refused by the trial court.

With respect to the answer of the jury to Special Issue No. 5, appellant contends that there is insufficient evidence to support the jury finding and that such finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We have read the entire statement of facts and have concluded that there is some evidence showing the amount of damage resulting solely from risks covered by the policy and not coming within the exclusion clauses thereof. Nor can we say that the jury finding to Special Issue No. 5 is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Appellant did not call any witness to testify as to the amount of damage sustained by appellees. Appellees’ witness, Donald E. White, who appraised the property, testified as to the value of the property before and after the hurricane and as to the diminution of value of the property resulting from the hurricane. This testimony was of no value because it does not in any way distinguish the loss resulting from risks within the terms of the policy and those within the exclusion clauses. Appellees’ witness, C. E. Thompson, however, a general contractor who built appellees’ dwelling in 1956, did submit a list showing the cost of necessary repairs that would have to be made to ap-pellees’ home, and testified that the inside damage to the property was caused by rain that was blown in through broken windows and vents in the roof caused by the wind, and that the damages about which he testified did not result from rising water. He further testified that the flood water rose in the dwelling from 10 to 12 inches but that he did not estimate the cost of repairing the sheet rock that was below the line of the rising water, and did not estimate any damage resulting from rising water. It is true he included an item of damage in the sum of $183.75 for refinishing four rooms of oak flooring where windows were missing, although he did not know the source of the water that damaged the floors. However, Mr. Cox, who remained in the dwelling all during the hurricane, did testify that the rain water which came in through the broken windows and broken vents in the roof of the house had reached^, height of 1 to 2 inches on the floors of his home prior to the time that any water came in from rising water or waves, and that such rain water coming in from the broken windows and roof and vents remained on the floor for hours before the flood waters came into the house. The jury might well have concluded that the floors were so damaged by standing rain water as to require refinishing.

The estimate of damages caused the dwelling given by Mr. Thompson is as follows:

$2340.00 Remove and replace 2800 sq. ft. S/R in ceiling, and 2400 ft. on walls, total 5200 sq. ft. @ $.45, tape, float, and texture, 2 coats of paint
735.00 Remove and replace 35 sq. of built up roof, @ $21.00
644.00 Remove and replace 2800 sq. ft. of insulation (6") @ .23
365.00 Clean and paint exterior trim, 2 coats
32.00 Replace 4 window glasses @ $8.00
65.00 Caulk all windows and trim
54.00 Replace all entry locks and 2 garage locks, 6 locks @ $9.00
97.00 Repair one window air cond.
67.00 Temp, roof repair
183.75 Refinish 4 rooms of oak flooring where windows were missing 735 sq. ft. .25
38.00 Replace 4 vent, blinds $9.50
300.00 Repair 200 sq. ft. of brick wall above water line @ $1.50
133.00 Replace 19 alum, window screens @ $7.00
856.00 Repair and paint 2 coats 3424 sq. ft. S/R walls @ .25
$5,909.75 10.00 Repair 2 vents on roof
$5,919.75

It is our view that the testimony of Mr. Thompson and Mr. Cox segregated the damage caused by wind and rain within the coverage of the policy from damage resulting from rising water which occurred after the original damage had been done by rain. Mr. Thompson testified unequivocally that the damage that he showed on his estimate resulted through water and rain coming through windows and the roof of the dwelling and that it did not cover anything caused by rising water in the house. The jury had a right to accept his testimony. The fact that the damaged floors of the house were taken out prior to the time that Mr. Thompson visited the premises and that he did not see them in their damaged condition merely goes to the weight of the evidence. Mr. Thompson had built the house and was undoubtedly familiar with the floors and what it would cost to refinish them.

Appellant contends that the court erred in overruling its objections and exceptions to the court’s charge and in submitting Special Issue Ño. 5 since such is'sue in effect submits the proximate cause theory covering damage from wind and wind-driven rain contrary to the insuring and exclusion clauses in the insurance contract dealing with insurance coverage and the carving out and excluding of water damage, flood water, rising water, high water, surface water and rain water, whether driven by wind or not, and for the further reason that in its present form said issue places the burden of proof on the defendant rather than on the plaintiffs and allows the jury to find, in effect, that the loss is covered by the policy if the evidence is equal. The objections and exceptions to the court’s charge, while not as clear as they could be, were sufficient to direct the court’s attention to appellant’s contention that the burden was on appellees to establish affirmatively that the loss did not result from any of the risks covered in the exclusions clause.

Appellant not only pointed out the defect in such issue but it requested, among other special issues, the following which were actually appellees’ issues:

SPECIAL ISSUE NO. K
“Do you find from a preponderance of the evidence that tidal wave, high water or overflow, whether driven by wind or not, and the rain, whether driven by wind or not, did not directly and proximately cause damage to the plaintiff’s house in question on or about September 11, 1961?
“Answer: ‘Tidal wave, high water or overflow, whether driven by wind or not, and the rain, whether driven by wind or not, did not directly and proximately cause damage to the plaintiffs’ house.’
or
‘“Tidal wave, high water or overflow, whether driven by wind or not, and the rain, whether driven by wind or not, did directly and proximately cause damage to the plaintiffs’ house.’ ”
SPECIAL ISSUE NO. L
“Do you find from a preponderance of the evidence that the loss and damage to the house of the plaintiff Leon Talmadge Cox was not a direct and proximate result of the combined action of the winds of Hurricane Carla and tidal wave, high water or overflow, whether driven by wind or not?
“Answer: ‘It was not a direct and proximate result of the combined action of the winds of Hurricane Carla and tidal wave, high water or overflow, whether driven by wind or not.’
“ ‘It was a direct and proximate result of the combined action of the winds of Hurricane Carla and tidal wave, high water or overflow, whether driven by wind or not.’ ”

Special Issue No. K with the instruction given in connection therewith is inadequate and incorrect in that it places generally rain whether driven by wind or not within the exclusionary clause of the policy. Such requested issue, however, was sufficient to suggest to the court the necessity for giving a correct issue covering appellees’ burden to establish affirmatively that the damage was not caused by a risk within the exclusionary clause. Special Issue No. L properly places the burden on plaintiffs to establish that the loss and damage was not a direct and proximate result of the combined action of the winds of Hurricane Carla and tidal wave, high water or overflow. This issue was refused.

The trial court gave no instructions to the jury in connection with Special Issue No. 5. The jury was not instructed that under the exclusionary clause of the policy it could not consider or allow anything for any damage or loss from surface waters, flood waters, waves, tide or tidal wave, high water, all whether driven by wind or not. Some of such excluded causes of damage were undoubtedly a direct result of the winds of Carla, and yet they came within the exclusionary clause. No issue was submitted to the jury which would permit it to find that certain damage was not the result of risks within the exclusionary clause of the policy, nor that the damage resulted solely from an unexcluded risk.

The testimony of appellees’ witness White was to the effect that much of the damage to appellees’ property resulted in whole or in part from high water. There was evidence to the effect that some of the damage to appellees’ dwelling resulted from risks within the exclusionary clause of the policy. Under these circumstances appellees had the burden to establish affirmatively that the damage in question was not the result in whole or part of the excluded risks pleaded by appellant.

In Pelican Fire Ins. Co. v. Troy Co-op. Ass’n, 77 Tex. 225, 13 S.W. 980, our Supreme Court held that the trial court erred in not instructing the jury that the burden of proof was upon the plaintiff to show by a preponderance of the evidence that the fire was not caused by the fall of the building, nor by hurricane (the excluded risks). The Court said: “Such a charge was requested and refused, when there was evidence which made such charge proper.”

The Supreme Court in Schuhmacher Co. v. Holcomb, 1944, 142 Tex. 332, 177 S.W.2d 951, held in effect that a defendant is entitled to an affirmative submission of defensive matters pleaded by him, and a finding on issues submitted is not a finding on issues not submitted. See also Rosenthal v. City of Dallas, Tex.Civ.App., 211 S.W.2d 279, writ ref., n.r.e.; Langham v. Talbott, Tex.Civ.App., 211 S.W.2d 987, writ ref., n.r.e.; Rule 279, T.R.C.P. In both Paulson et ux. v. Fire Insurance Exchange, and Hardware Dealers Mutual Fire Insurance Co. v. Berglund et ux., supra, our Supreme Court clearly held that although it could be said that the hurricane caused the loss, yet the plaintiffs could not recover unless they were able to t establish that the loss did not come within the exclusionary clause relating to “tidal wave, high water, or overflow, whether driven by wind or not.”

In McDonald v. New York Central Mutual Fire Ins. Co., Tex.Sup.1964, 380 S.W.2d 545, the Court submitted defensive issues for the purpose of determining whether the damages to the plaintiff’s premises were directly caused by the excluded risks and whether the loss and damage was a direct and proximate result of the combined action of the wind of Carla and tidal wave, high water or overflow, whether driven by wind or not. Although the burden of proof in connection with such issues was improperly placed on the defendant, the Supreme Court, because of the unclear and rather 'obscure objections and exceptions of the defendant with respect to the placing of the burden of proof upon it, upheld the trial court’s judgment in favor of the plaintiff. In the Berglund case, supra, the trial court’s judgment was upheld by our Supreme Court. In that case the trial court properly submitted issues placing the burden of proof upon the plaintiff, requiring the plaintiff to establish that the damage was not covered by an excluded risk or in the event it was in part caused by an excluded risk, to establish what percentage of the damage was caused by risks within the exclusionary clause of the policy.

In light of the Supreme Court’s opinions in the Paulson and Berglund cases, which were handed down after this case was tried, we are of the opinion that this cause should he reversed and remanded for a new trial.

Reversed and remanded.


author: BATEMAN, Justice.

text:
    GARLAND GRAIN COMPANY, Appellant, v. Richard E. BAILEY et al., Appellees.
    No. 16583.
    Court of Civil Appeals of Texas. Dallas.
    July 9, 1965.
    Rehearing Denied Oct. 1, 1965.

      McCulloch, Ray, Trotti & Hemphill and Joe H. McCracken, III, Dallas, for appellant.
    James H. Martin, Dallas, for appellees.
   BATEMAN, Justice.

This is a suit for a balance of commission or fee alleged to be due to appellees Richard E. Bailey and A. L. Greer for the services of Bailey and one L. W. Allen in obtaining for appellant Garland Grain Company the construction of a grain facility or warehouse. The appellant appeals from an unfavorable judgment based upon a jury verdict. The record requires that this judgment be affirmed. The facts out of which the claim arose are summarized as follows:

Facts

L. W. Allen executed and delivered to Garland Grain Company an instrument dated February 3, 1960, as follows:

“Garland Grain Company
Garland, Texas
Gentlemen:
The undersigned proposes to furnish and erect complete a Parkersburg steel grain storage building size 100' X 300' X 20' according to the plans and specifications furnished by the Parkersburg company and the suppliers of the aeration and operating equipment on your property at Garland, Texas and furnish the additional material and equipment completely installed as follows:
Concrete 18,500.00
Erection 10,875.00
Aeration 6,552.00
Electrical 3,000.00 est.
Scale 9,500.00 allowed
Building and freight 57,619.00
Platform and ladders 300.00 est.
Fill and grade 1,200.00 est.
Conveyor system (Remainder of money left over from other contracts to be used here)
The above prices are firm with the exception of the electrical, scale, conveyors and fill and grade. These are to be negotiated so that the capital installation shall not exceed $118,318.40 all of which shall be spent on the installation. Any savings made on the items listed above shall be applied on the conveyor system.
No interiam (sic) financing from Garland Grain Company shall be required. The First National Bank of Garland shall be names (sic) escrow agent for the purpose of handling funds for the contracts out of the balance of the F.A.C. loan proceeds after Parkersburg has been paid.
The above installation shall be completed for Commodity Credit Corporation approval in regard to their requirements for grain storage installations for the sum of $134,000.00 of which sum a loan from F.A.C. for the amount of $118,318.40 has been obtained. The balance paid in cash and other considerations which is hereby acknowledged as paid in full.
Accepted by: /s/ Jack C. Parsons President, Garland Grain Co.
/s/ L. W. Allen

As shown, this proposal was accepted by Jack C. Parsons as President of Garland Grain Company; and simultaneously he, in the same capacity, gave to L. W. Allen and R. E. Bailey an instrument reading as follows :

“GARLAND GRAIN COMPANY
Garland, Texas
February 3, 1960
“Mr. L. W. Allen
Mr. R. E. Bailey
1920 Adolphus Tower Dallas, Texas
Gentlemen:
For services rendered in the connection with the establishment of a Parkers-burg Grain Storage building with an estimated capacity of 650,000 bushels of grain we hereby agree to pay to you $16,000.00 as follows:
The following payment schedule is based on the receipts of payments earned by the above grain storage building only and not from any other facility owned or operated by the Garland Grain Co.
Based upon gross cash receipts earned by either storage or handling of grain in this building, at such time as receipts reach the sum of $80,000.00 you shall be paid the sum of $8,000.00.
Based on the same rate as above, after the initial payment you shall be paid quarterly at the ratio of 10% of the gross income until such time as the entire sum of $16,000.00 has been paid.
/s/ Jack C. Parsons Garland Grain Company ”

Bailey and Allen worked together and agreed to divide equally the $16,000 commission. Bailey arranged with the Parkers-burg Rig & Reel Company for the purchase of the prefabricated steel grain storage building; and Allen arranged for the installation of the concrete foundation, the erection of the prefabricated building, the installation of electrical service, etc., and supervised the work. The building was finished and accepted by appellant.

By agreement of the parties, $4,000 of the $16,000, which appellant agreed to pay Bailey and Allen, was evidenced by four $1,000 promissory notes, two of which were payable to Bailey and two to Allen. Appellant paid Allen $8,000, including the two $1,000 notes payable to Allen, but refused to pay Bailey anything. Bailey transferred and assigned his two $1,000 notes to ap-pellee Greer, but it was stipulated that Greer was not a bona fide purchaser for value. Greer sued on the two notes and Bailey sued for his $6,000, and the two suits were consolidated for trial.

Appellant denied liability on the grounds that Bailey and Allen had not fully performed their agreement, in that Allen had been derelict in supervising the construction and Bailey had not obtained the “interim” financing as he had agreed to do. The only reference to the latter in either of the written contracts, is in the proposal signed by L. W. Allen, in which occurs this sentence: “No interiam (sic) financing from Garland Grain Company shall be required.” Parsons testified that Bailey defnitely agreed to obtain interim financing (which we understand to mean a temporary loan to appellant for the payment of the costs of construction as they accrue, the temporary lender to be repaid when the “permanent financing” or loan is obtained), but that he was unable to obtain it. Bailey testified that he agreed to obtain the permanent financing and to help get the interim financing, but denied that he definitely agreed to obtain the latter. He appears to have arranged for the permanent loan from the First Acceptance Corporation. He testified that he was unable to obtain the interim financing because of the unsatisfactory financial statement of appellant. In any event, apparently in order not to lose the sale, the Parkersburg Rig & Reel Company agreed to and did see that there was money available for the interim financing through a local bank. It was also shown that Allen supervised to the point of getting the work well under way, after which it was supervised by a representative of the Parkersburg company. There was no evidence of any loss or serious inconvenience suffered by appellant because of any failure of Bailey or Allen to perform any part of their contract. It was stipulated that appellant’s gross cash receipts had been more than $160,000.

Opinion

Appellant’s first point of error on appeal asserts error in the overruling of its motion for judgment non obstante veredicto because (a) there is no evidence that Bailey and Allen performed material obligations owed by them to appellant under the contract, and (b) the undisputed evidence showed conclusively that appellant had to perform certain of Bailey’s and Allen’s said obligations. The second point challenges the sufficiency of the evidence to support the verdict. We find no merit in either of these points.

In the first place, there was a dispute as to whether Bailey was obligated to obtain the temporary loan; the written contract does not expressly so obligate him. In the second place, even if there were an implied obligation on Bailey or Allen to do so, the temporary financing was in fact arranged for and obtained by Parkersburg Rig & Reel Company, and appellant is in no position to deny its liability for the agreed commission or fee because some third party performed a certain portion of Bailey’s and Allen’s implied obligation, so long as this was accomplished without loss or damage to appellant.

In suits to recover the contract price agreed upon for construction of a building, where it appears that the contractor has in good faith substantially performed, he will be allowed to recover on the contract notwithstanding slight deviations therefrom, and the true measure of his recovery is the contract price less the damages sustained by his failure strictly to perform. Atkinson v. Jackson Bros., Tex.Com.App., 270 S.W. 848, 38 A.L.R. 1377; Graves v. Allert & Fuess, 104 Tex. 614, 142 S.W. 869, 39 L.R.A.,N.S., 591; Cooper Concrete Co. v. Hendricks, Tex.Civ.App., 386 S.W.2d 221, no wr. hist.; 10 Tex.Jur.2d, Building Contracts, p. 25, § 21. We can think of no reason why this sensible rule should not be applied to this case. World Broadcasting System v. Eagle Broadcasting Co., Tex.Civ.App., 162 S.W.2d 463, wr. dism., would indicate that it should, for it was there held that the plaintiff’s failure to perform one of several independent covenants making up the contract sued on would not preclude recovery, and that a covenant going only to a part of the consideration on both sides should be regarded as “independent” unless this would be contrary to the expressed intent of the parties.

Therefore, we hold that there was evidence of probative value that Bailey and Allen substantially performed their contract, that the undisputed evidence showed that appellant sustained no loss or damage from any deviation by them or either of them from the contract, that there was sufficient evidence to support the verdict, and that the verdict is not so against the great weight and preponderance of the evidence as to be clearly wrong. Accordingly, appellant’s first and second points are overruled.

By its third point of error the appellant asserts error in the submission of the sole special issue to the jury because said issue amounted to a general charge and did not submit an ultimate controlling issue of fact. We consider this point to have been waived.

The case was submitted to the jury on July 28, 1964; the verdict was returned July 29, 1964; the judgment was rendered October 9, 1964; and appellant’s objection to the charge of the court was filed on January 7, 1965. Even if under the liberal regulations set forth in Rule 272, Vernon’s Texas Rules of Civil Procedure, we were to overlook the fact that the objection was filed several months after the conclusion of the trial and presume that the objection was dictated to the court reporter before the charge was submitted to the jury and subsequently transcribed, nevertheless there is nothing in the transcript to indicate definitely that this was done or, even if it was, that the objection was ever called to the attention of the court or that the court acted on it. Rule 272 provides that when the objections to the charge are dictated to the court reporter at the time of trial and subsequently transcribed they shall bear the court’s ruling and official signature. No such ruling or signature appears in this record.

Rule 272, T.R.C.P. provides also that objections not made and presented in the manner set forth therein shall be considered as waived; and this has been held to follow even when the objection is that the special issue in question is a general charge. 3-A Tex.Jur., Appeal and Error, § 174, p. 223; Seymour v. Texas & N. O. R. Co., Tex.Civ.App., 209 S.W.2d 814, 816, wr. ref.; Alderete v. Cabello, Tex.Civ.App., 278 S.W. 950, no wr. hist.; Ball v. Henderson, Tex.Civ.App., 228 S.W. 361, no wr. hist.; Indemnity Ins. Co. of North America v. Sparra, Tex.Civ.App., 57 S.W.2d 892, 898-900, wr. dism.; National Life & Acc. Ins. Co. v. Bennett, Tex.Civ.App., 73 S.W.2d 676, no wr. hist. Therefore, the third point is overruled.

By its fourth and fifth points of error appellant complains of the admission in evidence of an unsigned copy of a chattel mortgage and a copy of a telegram. The sixth and seventh points assert error in the exclusion of two letters offered by appellant, neither of which was addressed to appellees, or to Allen, or written by or at the direction of either of them. It would add nothing to the jurisprudence of the State for us to describe these four writings in greater detail, or to write at length on the applicable rules of evidence. Suffice it to say that in our opinion all four rulings of the court were correct, and that appellant has not carried the burden of demonstrating that, if any of them were erroneous, prejudicial harm resulted to appellant thereby. Rule 434, Vernon’s Texas R.C.P. Points four through seven are overruled.

Affirmed.


text:
    NATIONAL HOMES CORPORATION, Appellant, v. C. J. BUILDERS, INC., et al., Appellees.
    No. 14610.
    Court of Civil Appeals of Texas. Houston.
    Sept. 9, 1965.
    Rehearing Denied Oct. 7, 1965.

      Wendell S. Loomis, Houston; Sam R. Fisher, Houston, of counsel, for appellant.
    Vinson, Elkins, Weems & Searls; Ray-bourne Thompson, Jr., Houston, for ap-pellees.
   WERLEIN, Justice.

This is an appeal from a summary judgment. Appellant, National Homes Corporation, sued appellees upon a sworn account for the sum of $595.94 and reasonable attorney’s fees in the sum of $300.00, and prayed for judgment in the total amount of $895.94, interest and court costs. The original petition was filed February 5, 1964 and the first amended original petition on August 10, 1964. Service was not had on appellees until August 20, 1964. Thereafter, on October 16, 1964, appellees filed their amended answer in which they pleaded payment in full of the account by check in the amount of $594.00 (attached copy of check shows $595.94), which was accepted in payment in full for all amounts owed by C. J. Builders, Inc., to appellant and which was on or about February 27, 1964 duly paid and charged to the account of said appellee.

The evidence shows that appellee, Carroll D. Jacob, on or about February 10, 1964 drew a check for and on behalf of appellee, C. J. Builders, Inc., payable to appellant in the amount of $595.94, being the exact amount of the sworn account. This check, which was received and cashed by appellant, had written on the reverse side thereof the phrase “Accepted as payment in full of all amounts owed to us by C. J. Builders, Inc.” Under such words was stamped “For deposit only to account of National Homes Corporation Transfer Account.”

On January 6, 1965 appellees filed their motion for summary judgment on the ground that the pleadings and admissions in appellant’s first supplemental petition showed that a settlement of all claims asserted against appellees by appellant was effected on February 10, 1964, the date of the aforesaid check, and that the attorney’s fee was but a part and parcel of the total cause of action for amounts owed for goods and merchandise sold and delivered by appellant to appellees, and was, therefore, extinguished, as a matter of law, by the effecting of a settlement in full of all monies owed to appellant by C. J. Builders, Inc. Appellant also filed a motion for summary judgment. The trial court heard both motions and ordered and decreed that appellant’s cause of action be dismissed since the court “was of the opinion the Plaintiff had been paid in full and that there was nothing further to contest.”

The main question before us is whether under the facts hereinabove related the trial court erred in finding that appellant had been paid in full and in dismissing appellant’s cause of action. The payment made by appellees of $595.94 was made after appellant had filed its suit, but before appellees had been served with citation. The trial court found that demand for payment of the account had been made more than thirty days prior to filing suit on February 5, 1964. Appellant contends that the payment of the principal account after suit has been filed does not bar the claim for attorney’s fees and costs which are accrued by the filing of suit. Appellees, however, assert that Article 2226, Vernon’s Annotated Texas Statutes, under which appellant claims to be entitled to attorney’s fees, provides: “and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such person or corporation, he may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, if represented by an attorney.” (Emphasis added.) It is appellees’ contention that since appellant did not recover judgment for any amount of the claim which had been paid in full, appellant may not recover any attorney’s fees.

It is clear that appellant must rely upon Article 2226, V.A.T.S., in order to recover attorney’s fees. The provision with respect to finally obtaining judgment for any amount of the claim presented for payment cannot be written out of the Article since such Article is penal in nature and in derogation of the common law and must be strictly construed. Davenport v. Harry Payne Motors, Tex.Civ.App. 1953, 256 S.W.2d 245; U. S. Life Ins. Co. v. Hamilton, Tex.Civ.App., 238 S.W.2d 289, writ ref., n. r. e.; Kirkwood & Morgan, Inc. v. Roach, Tex.Civ.App., 360 S.W.2d 173, writ ref., n. r. e. In Huff v. Fidelity Union Life Insurance Company, 158 Tex. 433, 212 S.W.2d 492, our Supreme Court said:

“Article 2226 requires that a plaintiff must finally obtain judgment for any amount thereof (of the claim) as presented to the person or corporation before a reasonable attorney’s fee can be recovered. While the attorney’s fees are not part of the demand or claim, but are in the nature of a penalty, or punishment for failure to pay a just debt (Davenport v. Harry Payne Motors, Inc., Tex.Civ.App.1953, 256 S.W.2d 245, no writ history), and are not ordinarily recoverable in a tort or contract action (Cleveland State Bank v. Lilley, Tex.Civ.App.1924, 260 S.W. 324(2), no writ history), they may be recovered by compliance with the statutory provisions of Article 2226.”

Appellant at the time it accepted payment of the check knew it had filed suit and had asked for attorney’s fees, and yet it accepted the check in full payment of all amounts owing it by appel-lees. It will be charged with knowledge of the provisions and limitations in said Article 2226. If it wanted to collect attorney’s fees from appellees it could have refused to accept the check unless attorney’s fees were paid. If a satisfactory settlement could not be effected, it could have prosecuted its case to judgment and in such event if it recovered any part of the claim it could also have probably collected a reasonable attorney’s fee.

Since our Supreme Court has held that attorney’s fees are no part of the claim or demand and the claim in this case was paid in full by the check in the exact amount thereof which was accepted by appellant and cashed, the trial court properly concluded that there was nothing to contest and that appellant should not recover. Since no judgment was entered for any part of the claim, appellant under the clear language of Art. 2226, V.A.T.S., was not entitled to attorney’s fees or costs. Furthermore, a suit for statutory attorney fees cannot be maintained as a separate cause of action. National Sur. Corp. v. Standard Concrete P. Sales Co., Tex.Civ.App., 366 S.W.2d 103. In the instant case there was no severance, as such, of the principal claim and the claim for attorney’s fees, but upon settlement of the principal cause of action, nothing remained in the suit except the claim for attorney’s fees which could not be maintained as a separate cause of action.

Rule 131, Texas Rules of Civil Procedure, provides: “The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.” In this case appellees were the successful parties since appellant recovered nothing. Appellant, however, contends that the payment made by appellees was subsequent to the filing of suit and therefore it is entitled to attorney’s fees, especially since the failure of appellees to make timely payment necessitated the filing of suit. Appellant relies mainly upon Altgelt v. City of San Antonio, Tex.Civ.App. 1900, 55 S.W. 761, error ref., in which the court held that the payment by the defendant of taxes sued for after institution of the suit, was an admission that such taxes were due when the suit was brought, and that the City’s right to recover costs of suit could not be defeated by payment of the taxes pending suit. In the Altgelt case the defendant paid the full amount of taxes sued for. There is nothing to show that anything other than taxes was sued for. In the instant case appellant sued not only for its principal claim but also for $300.00 attorney’s fees. Appellees did not pay any attorney fees and appellant was unsuccessful in prosecuting its suit therefor. There was no admission by appellees that attorney’s fees were due and there is nothing in the record to show that appellees knew at the time of payment that suit had been filed. It is our view under the circumstances of this case that Rule 131, T.R.C.P., is applicable and that the trial court did not err or abuse its discretion in taxing court costs against appellant.

Judgment affirmed.


author: McDONALD, Chief Justice.

text:
    Maximino CARRALES et ux., Appellants, v. CITY OF KINGSVILLE, Appellee.
    No. 4404.
    Court of Civil Appeals of Texas. Waco.
    Sept. 2, 1965.

      Bonilla, DePena, Read & Bonilla, Corpus Christi, for appellants.
    Glusing & Sharpe, W. C. McDaniel, Kingsville, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a summary judgment that plaintiffs Carrales take nothing.

Plaintiffs filed suit for damages against defendant City on account of the death of their 2 year old son, who drowned when he fell into a City water meter hole which was left uncovered by City employees.

Defendant City filed motion for summary judgment on the ground that plaintiff had failed to give the City notice as required by the City’s Ordinance and which is a condition precedent to liability of the City.

The Trial Court granted defendant City’s motion and entered judgment that plaintiffs take nothing.

Plaintiffs appeal, contending the trial court erred in granting summary judgment against them and that the letter written by their attorney to the City was in substantial and sufficient compliance with the defendant City’s Ordinance.

The City’s Ordinance provides:

“Liability of City. Before the City shall be liable for accidental death, personal injuries of any kind * * * the claimants or survivors in a death claim, or the persons injured * * *, or someone in their behalf, shall give the Mayor and Commission notice in writing of such injury * * *, duly verified within 60 days after the same has been sustained, stating on such written notice when, where, and how the injury * * * occurred, the apparent extent thereof, the amount of damages sustained, the amount for which the claimant will settle, the street and residence number of the claimant at the time and date the claim was presented, and the actual residence of such claimant for the 6 months immediately preceding the occurrence of such injuries * * *, and the names and addresses of the witnesses upon whom he relies to establish his claim; and a failure to so notify the Mayor and Commission within the time and manner provided herein shall exonerate, excuse and except the City from any liability whatsoever.”

The letter written by plaintiffs’ attorney is as follows:

“March 25, 1964
Registered Mail
“City Mayor
City Hall
Kingsville, Texas
Dear Sir:
Maximo Carrales and his wife have employed me to represent them in connection with their claim for damages sustained as a result of the loss of their 2 year old child, Ruben Carrales.
“On March 20, 1964, Ruben Carrales fell inside a water meter owned and maintained by the City of Kingsville, and as a result of the fall, the child drowned. City employers investigated the matter and obtained signed statements from witnesses confirming what actually occurred on March 20, 1964.
“You can understand the grief suffered by my clients in this matter, and you can understand the suffering endured by Ruben Carrales, a 2 year old child, while struggling in the muddy water inside the water meter located in front of 1203 East Yoakum Street in Kings-ville, Texas.
Should you desire written information to enable you to make a complete investigation of this matter, do not hesitate to call on me. Should I not hear from your insurance carrier within the very near future, however, it will be necessary that I file suit in behalf of Mr. and Mrs. Carrales. Thanks for your attention to this matter.
Yours very truly,
/s/ WILLIAM D. BONILLA
CC City Attorney
City Hall
Kingsville, Texas
City Manager
City Hall
Kingsville, Texas.”

Defendant City asserts, among other things, that the letter is fatally defective and not in compliance with the City’s Ordinance because it is not verified by affidavit or acknowledgment.

Ordinances such as here, requiring a written claim for death or personal injury against a city to be filed within a specified time, are mandatory, and such filing is a condition precedent before a suit can be maintained against the City for such injury. City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692; Phillips v. City of Abilene, CCA, Er. Ref., 195 S.W.2d 147.

Moreover, our courts have almost without exception required strict compliance with charter provisions and ordinances of this nature. Cawthorn v. City of Houston, Comm.App., 231 S.W. 701; Gardner v. City of Houston, CCA, (n. w. h.) 320 S.W.2d 715; Robinson v. City of Hereford, CCA, (n. r. e.) 324 S.W.2d 313.

Where verification is required by the City Ordinance, as here, the notice must be verified to be effective, and such requirement is held to be a matter of substance and not of mere form. 38 Am.Jur. p. 395; 51 A.L.R.2d p. 1149; 63 C.J.S. Municipal Corporations § 925, p. 366.

Because plaintiffs’ notice was not verified as required by the defendant City’s ordinance, such notice is not in substantial and sufficient compliance with the City’s ordinance.

Affirmed.


text:
    GULF COAST OPERATORS, INC., Appellant, v. FLEMING OIL COMPANY, Inc., et al., Appellees.
    No. 14614.
    Court of Civil Appeals of Texas. Houston.
    Sept. 23, 1965.

      Anderson & Frank, Robert E. Anderson, Houston, for appellant.
    Charles R. Clements, Houston, for appel-lee Fleming Oil Co., Inc.
    Louis Paine, Jr., Houston, Butler, Binion, Rice, Cook & Knapp, Houston, of counsel, for appellee H. A. Potter, Jr.
   WERLEIN, Justice.

This suit was brought by Gulf Coast Operators, Inc., herein referred to as Gulf Coast, as operator of an oil and gas lease, against Fleming Oil Company, Inc., hereinafter called Fleming, Goddard Machinery Company and H. A. Potter, Jr., owners of non-operating working interests in the lease, for payment of operating costs allegedly attributable to their non-operating working interests, and against Scurlock Oil Company, the purchaser of production from the lease, to recover proceeds from production attributable to the interests of Fleming, Goddard and Potter. Fleming and Potter counterclaimed against Gulf Coast and Scurlock Oil Company for their respective interests in production or the proceeds therefrom which were held in suspense by Scurlock Oil Company or which had been released to Gulf Coast. The interest of Goddard Machinery Company in the lease was acquired by Potter.

The case was tried to the court without a jury, and the trial court decreed that Gulf Coast, which owned an undivided one-third interest in the oil and gas lease and well thereon known as the Oran Brooks well, had expended for the benefit of the five-twelfths interest in the lease owned by Fleming, $8,551.59 in the operation, development and maintenance of the lease up to and including November 30, 1964, and for the benefit of the undivided one-fourth interest in the lease owned by Potter, $5,130.-95, but that both such amounts had been paid from funds attributable to the respective interests of said parties; and that Scurlock Oil Company had accrued to the account of Fleming the sum of $25,089.89 and to the account of Potter the sum of $14,140.41 as proceeds of production from said lease, but that no part of said sums had been paid to said parties. The court further decreed that Scurlock Oil Company had paid to the plaintiff, Gulf Coast, from said accrued sums the amount of $25,748.82, being an amount in excess of the amounts which Gulf Coast had expended for the benefit of the interests of Fleming and Potter, and that, therefore, Gulf Coast had been paid in full the amounts expended by it for the benefit of said parties, the appellees herein. The court further decreed that Scurlock Oil Company pay the balance of said accrued sums to Fleming and Potter as follows: To Fleming $16,538.38, and to Potter $9,009.46, and that said defendants have judgment against Scurlock for such amounts.

The court found that Scurlock Oil Company had paid to Gulf Coast the sum of $12,-066.28 in excess of the amounts which Gulf Coast had expended for the benefit of the interests of Fleming and Potter, and, therefore, the court decreed that Gulf Coast pay the sum of $12,066.28 to Scurlock Oil Company.

In its first point appellant asserts that the trial court erred in disallowing it many of the costs proven to have been incurred by it for the benefit of the interests of the appellees, Fleming and Potter, in the Oran Brooks lease, there being no evidence to support the disallowance of such costs by the trial court. Although this point is a no evidence point, and both it and the statement under it are too broad and indefinite for consideration, we have read the entire statement of facts consisting of some 446 pages. We note that the judgment of the trial court was approved both as to substance and form by the attorneys representing appellant and appellees. The court was not requested to make any findings of fact or conclusions of law and did not do so.

Appellant has failed to point out what costs paid by it were disallowed by the court, and there is nothing in the record to show which costs were disallowed and which were allowed, or why certain of the costs were disallowed, if they were. Appellant contends that it introduced invoices, vouchers and checks showing expenditures of monies for various types of operations involved in maintaining the lease and producing the well located thereupon from November 1, 1960 to November 30, 1964. It asserts that such expenditures total $12,472.24 and comprise the following Plaintiff’s Exhibits: 2-7, 9-15,17-19, 21-122, 180-200, of the Statement of Facts. There is no tabulation of the invoices and vouchers in the record. Appellant contends that the court must have disallowed some of these items but it fails to point out which were allowed and which were disallowed. In order for this Court to determine which of such items were disallowed and which were allowed by the court, it would necessitate an accounting job on the part of this Court. Even then it would likely be impossible to determine exactly which costs were disallowed due to the state of the record. In addition to the foregoing alleged costs, Gulf Coast’s president testified that materials from its inventory were used for the benefit of the Oran Brooks lease, and that such material, not itemized in separate invoices, had a value of $700.00 to $1,000.00. -He also testified that the charge for administrative overhead at the rate of $75.00 was reasonable and customary in Harris County.

It was shown by appellees that many of the invoices covering material furnished by third parties were improperly billed. Appellant’s president testified that the mistakes in the billing were made by girls in appellant’s office and that it was possible that some of the material put on the Ivy Oaks well on another lease was charged to the Brooks well. On cross-examination the president of appellant testified there was no allocation with respect to some of the hills between the Ivy Oaks well and the Brooks well, and that a number of invoices that were billed in error to Ivy Oaks should have been billed to the Brooks well. The evidence shows that there were a number of invoices included in appellant’s claim which were not allocated between the Oran Brooks and other wells, and that some bills which were invoiced to Ivy Oaks were charged to Brooks. Appellant contends that where a discrepancy was shown, the amount included in the invoice was disregarded. However, the testimony of the president of appellant was that of an interested party, and it was not free from contradiction, inaccuracies, and circumstances tending to impeach some of it.

Appellees assert that the evidence shows that invoices representing sums in excess of $1,598.85, which were introduced by appellant as properly chargeable to the Brooks lease, were in fact charged by appellant to other leases and had been paid by other parties; that appellees were not given credit for any discounts in connection with the invoices covering material purchased; that Gulf Coast’s administrative offices were poorly run and inefficient. The trial court could have concluded that the administrative overhead charge of $75.00 per month was not reasonable under the circumstances. Fleming also contends that it should have been allowed a credit in the amount of $3,-434.21. There were other discrepancies in connection with the evidence and testimony introduced which we need not enumerate. Although appellant contended in its brief that it was entitled to pumpers’ salaries during the period in question aggregating $16,768.00, appellant’s attorney in argument before this Court stated that appellant was not claiming anything for pumpers’ salaries. This concession was apparently made because of the failure of appellant to properly allocate salaries to the Brooks and other wells. Furthermore, with respect to travel expenses of pumpers, it seems that other wells might have been serviced by the pumpers as well as the Oran Brooks well, so that there should have been some allocation with respect to the amounts claimed for transportation, but no definite allocation was made.

In view of the testimony given by the appellant’s president, and contradictions in the record, the trial court was not required to accept the testimony of appellant. The court could have found that some of the charges were not reasonable or necessary; that the claim consisting of administration charges was not reasonable; that allocation had not been made of certain items which should have been made, and that some items were improperly charged to the Oran Brooks which should have been charged to other leases.

In Anchor Casualty Co. v. Bowers, Tex., 393 S.W.2d 168, the Court held that the uncontradicted testimony of an interested witness cannot be considered as doing more than raising an issue of fact. An exception is made when the testimony of the interested witness is clear, direct, and positive, and there are no circumstances in evidence tending to discredit or impeach such testimony. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, Tex.Sup.1965. In the instant case there are circumstances in evidence tending to discredit or impeach some of the testimony of appellant’s president. Moreover;? in this case the appellees did not have the means or opportunity of disproving much of the testimony that was given by appellant’s president. See Owen Development Company v. Calvert, 1957, 157 Tex. 212, 302 S.W.2d 640; McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943).

Appellant first sued on open account for certain alleged expenses incurred in the operation, development and maintenance of the leases in question. Thereafter, however, by amended pleading appellant sued in quantum meruit claiming an amount due of some $25,944.48. The law is well established that the findings of the trial court, where the case is tried without a jury, are equivalent to a jury verdict on special issues, and that a reviewing court will not disturb such findings if there is some evidence of probative force to support the same, viewing the evidence in the light most favorable to the successful party and indulging every legitimate conclusion that is favorable to him. Googins v. E. W. Hable & Sons, Tex.Civ.App., 237 S.W.2d 705, writ ref., n. r. e. See also Quinn v. Wilkerson, Tex.Civ.App., 195 S.W.2d 399, and Wininger v. Fort Worth & D. C. R. Co., 105 Tex. 56, 143 S.W. 1150. Appellant has failed to point out any specific error on the part of the trial court in connection with its claim in quantum meruit.

In its second point appellant asserts that the trial court erred in failing to adjudge to it the account receivable from the defendant Fleming originally owed to the Estate of J. P. Petkas, Deceased, and assigned to the plaintiff. The point fails to direct this Court’s attention to what the error of the court consists of. It fails to state whether the finding of the court is contrary to the evidence or the law or against the great weight and preponderance of the evidence. A point of error is a complaint of some ruling or judgment of the trial court that is contrary to the evidence or the law. McDonald v. Grant, Tex.Civ. App., 312 S.W.2d 694, writ dism. Appellant in argument before this Court took the position that the sums of money found by the court show that the court either did not adjudge to it the account receivable owing by Fleming or that the court improperly disallowed a large part of the amount due it upon the invoices admitted in evidence. Appellant has failed to show what the trial court did. Without some specific showing of error on the part of the trial court, this Court must affirm the court’s judgment. We are not in a position to do otherwise. In Flint v. Knox, Tex.Civ.App., 173 S.W.2d 214, ref., w. o. m., the court said:

“Obviously, under our authorities, not only is every reasonable presumption to be indulged in the support of the judgment so rendered, but this appellate court is not required to go off on an extended fishing-expedition through such a statement of facts in search of evidence either to support a judgment so rendered, or to determine that none exists. 3 Tex.Jur., paragraph 379, page 540, footnote 5, and cited authority; 3 Tex.Jur., paragraph 747, page 1059; 3 Tex.Jur., paragraph 748, page 1061.”

In its last point appellant complains that the court erred in failing to adjudge attorney’s fees to it. We are of the opinion that there are several reasons why the court properly refused to allow appellant attorney’s fees. It is clear that appellant must rely upon Article 2226, Vernon’s Annotated Texas Statutes, in order to recover attorney’s fees in this case. Article 2226 provides, “and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such person or corporation, he may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, if represented by an attorney.” (Emphasis supplied.) The provision with respect to finally obtaining judgment for any amount of the claim presented for payment cannot be written out of the Article since such article is penal in nature and in derogation of the common law and must be strictly construed. Van Zandt v. Fort Worth Press, Tex.Sup.1962, 359 S.W.2d 893; Davenport v. Harry Payne Motors, Tex.Civ.App.1953, 256 S.W.2d 245; United States Life Ins. Co. v. Hamilton, Tex.Civ.App., 238 S.W.2d 289, writ ref. n. r. e.; Kirkwood & Morgan, Inc. v. Roach, Tex.Civ.App., 360 S.W.2d 173, writ ref. n. r. e. See also Huff v. Fidelity Union Life Ins. Co., 158 Tex. 433, 312 S.W.2d 493.

In the instant case, the judgment of the court decreed nothing to appellant, since appellant had previously been paid in full by Scurlock Oil Company the one-third of the proceeds from production which it was entitled to, and had also previously drawn down from Scurlock Oil Company an amount in excess of the amounts it had expended for the benefit of the interests of Fleming and Potter. Instead of appellant recovering anything by the judgment, it was required by the judgment to pay the sum of $12,066.28 to Scurlock Oil Company.

It is our view also that appellant has failed to show that the claim sued upon is such as would authorize the recovery by it of attorney’s fees. See Van Zandt v. Fort Worth Press, supra. Appellant as operator of the Brooks well purchased from third parties material for the use and benefit of itself and the non-operating working interests in the Oran Brooks well, but it did not furnish such material to the non-operators, nor did they receive any material. It is clear that appellant is not entitled to an attorney’s fee under Article 2226, V.A.T. S., based upon material furnished the Oran Brooks lease and well by third parties, whether such material was immediately or later used on the well.

Judgment affirmed.