author: BARROW, Chief Justice.

text:
    MISSOURI PACIFIC RAILROAD CO., Appellant, v. Jack Wesley MILLER, Appellee.
    No. 14654.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 28, 1968.
    Rebearing Denied April 3, 1968.

      Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, for appellant.
    Rice, Whitehead & Seely, San Antonio, Helm, Jones & Pletcher, Houston, for ap-pellee.
   BARROW, Chief Justice.

Appellee brought this suit against appellant to recover damages under the provisions of the Federal Employers’ Liability Act (45 U.S.C.A. § 51 et seq.) for personal injuries sustained on August 8, 1965. Judgment was entered on the jury’s verdict whereby appellant recovered the sum of $244,000.00. Appellant’s motion for new trial was overruled after appellee filed a suggested remittitur of $44,000.00. Appellant has duly perfected its appeal from the reformed judgment of $200,000.00 and asserts five points of error.

The first point relates to the action of the court in sustaining appellee’s motion in limine and excluding evidence of appellee’s felony conviction in 1958 for accessory to burglary, for which he received a sentence of two years probation. At that time he was nineteen years of age. He was twenty-eight years old on March 20, 1967, when this case was tried. The applicable rule is stated in Travelers Ins. Co. v. Dunn, 383 S.W.2d 197 (Tex.Civ.App.—El Paso 1964, writ ref’d n. r. e.), as follows: “There is no dispute but that the conviction of an individual of a crime involving moral turpitude can be admitted for the purpose of impeachment or to attack the credibility of a witness, but such is not admissible if it is too remote. The cases we have examined all indicate that this is a matter resting largely on the discretion of the trial court, which must take into consideration all the facts and circumstances present at the time the testimony is proffered. His decision to admit or exclude the testimony because of remoteness, being one of judicial discretion, will not be disturbed unless it is evident that the trial judge abused his discretion in the ruling made.” See also Dallas County-Water Control & Imp. Dist. No. 7 v. Ingram, 395 S.W.2d 834 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.); United Benefit Fire Ins. Co. v. Stock, 344 S.W.2d 941 (Tex.Civ.App.—Houston 1961, no writ).

We cannot say from the record before us that the trial court abused its discretion in holding appellee’s conviction nine years before this trial was too remote, particularly in view of his youthful age at the time of commission of the crime and his apparent successful rehabilitation.

Appellant urges by its second point that the trial court erred in submitting an issue as to future medical expense over its timely objection, in that there is insufficient evidence that appellee would require same. The jury found that the reasonable and necessary costs of future medical services would be $20,000. There is clear evidence from appellee’s doctors as to his future need for medical services, but there is very little testimony relative to the probable cost of same. Since there is nothing in the record to indicate the basis of the trial court’s remittitur, and specifically whether all or a part of the future medical award was set aside, this point does not present reversible error under Rule 434, Texas Rules of Civil Procedure, other than as it relates to appellant’s complaint of excessiveness of the judgment of the court.

Appellant’s final three points urge that the verdict of the jury is grossly excessive so as to show that it is the result of passion, prejudice and bias, and that the judgment, even after the remittitur, is manifestly too large and is grossly excessive. These points are based entirely on the size of the verdict, in that there is no showing of jury misconduct, improper evidence, or improper argument. The entire trial was remarkably free of objections and there is nothing in the record to indicate that the testimony concerning damages was presented in an inflammatory manner.

The applicable rule in considering the complaint of excessiveness was stated by this Court in Green v. Rudsenske, 320 S.W.2d 228, 235 (1959, no writ), as follows: “The law is settled that before an appellate court will disturb a judgment rendered upon a jury verdict, on the grounds that such verdict is excessive, there must be circumstances tending to show that it was the result of passion, prejudice or other improper motive, or that the amount fixed was not the result of a deliberate and conscientious conviction in the minds of the jury and court, or so excessive as to shock a sense of justice in the minds of the appellate court.”

Under Rule 440, T.R.C.P., if the Court of Civil Appeals “is of the opinion that the verdict and judgment of the trial court is excessive and that said cause should be reversed for that reason only,” then said appellate court shall indicate a remittitur, and if timely filed the judgment shall be reformed and affirmed; otherwise it shall be reversed.

In Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959), the Supreme Court considered the authority and propriety of the trial and appellate courts to grant a remittitur. It quoted with approval the standard set by the Supreme Court in Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993 (1916), as follows: “All the Court of Civil Appeals can do, and all that is required of it to do * * * is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation for the injury sustained, and treat the balance as excess * * [(Having)] decided upon an amount that would be reasonable compensation * * * it should authorize a remittitur of the excess * * * in accordance with its sound judgment.” It was further held that “there need not be extraneous proof of passion or prejudice or any other proof” showing the verdict was improperly motivated, before sustaining the trial court’s order granting the remittitur.

On August 8, 1965, appellee was riding in the caboose of one of appellant’s freight trains, consisting of 112 cars, as a part of his duties as brakeman, and was injured when he was slammed into the wall of the caboose after the train made an unexpected emergency stop as a part of a yard test. When the train went into the emergency stop the slack action of from four to six inches between the knuckle and coupler on each car was caused to run in and that slammed appellee into the wall. His left shoulder struck the wall and knocked him down on his back. Although he was pretty well shaken up and “was hurting just about all over” he did not think that he was seriously injured. After completing his paper work, including a notice of this injury, appellee drove home and went to bed. He missed two days’ work, but on the third day he made a regular run from San Antonio to Taylor. This trip hurt him so bad that he returned to San Antonio on a passenger train. He saw Dr. Bernhardt twice on his return and was given pain pills. He was still hurting so bad and couldn’t straighten up, so that on August 18th he went to see Dr. Bellew, D.C. After five and a half months of adjustments, Dr. Bellew permitted him to return to work.

Appellant required an employee returning to work after an absence of over ninety days to pass a full physical examination by its medical director. Dr. Lawrence Reppert, M.D., appellant’s local medical director, testified that although he had no independent recollection of appellee, his records showed that he examined appellee on January 24, 1966, and completed the examination on January 26th after X-rays were made. The X-rays were made of the cervical spine, as appellee said that he had injured his neck. Dr. Reppert testified that appellee had no complaints at the time of this examination and was passed to return to work.

Appellee testified that he bid for and received a lighter job from appellant, although it meant working in Cotulla. He had to quit this job on May 5, 1966, because of the pain, and never returned to work for appellant. The only other employment that he tried before the trial in March, 1967, was selling life insurance for about two months; selling advertisement signs for three or four days, and doing part-time work at a bowling alley for seven or eight days. He also did some work in his yard and some light mechanical work on his car.

Appellee clearly proved that he had sustained an injury to his spine which was serious, painful and disabling. The evidence substantially supports the summary from appellee’s brief, that “he suffered injuries to the discs in the cervical * * * spine and a compression fracture in the dorsal spine resulting in severe limitation of motion, great and disabling pain, serious atrophy in the left arm, grievous impairment of future earning capacity and obvious attendant mental anguish.” His principal injury is damage to the 5th cervical nerve root which is demonstrated by a narrowing of the C4-C5 interspace of his spine, by atrophy in his left arm, a reversal of the normal curvature of his upper spine, and muscle spasm, which injury was confirmed scientifically by an electromyelograph.

Dr. Warren Ross, a medical doctor specializing in orthopedics in Austin, started treating appellee on June 13, 1966, and had seen him thereafter about every three weeks. His diagnosis, based on the eleven times he had seen appellee, as well as from X-ray examination, was that appellee has a ruptured disc at the C4-C5 level and a probable compression fracture of the fifth dorsal vertebral body as well as evidence of damage to the lumbo-sacral area of the spine. He testified that appellee could not do prolonged standing, sitting, walking, bending, lifting, twisting, straining, stooping or squatting. Appellee is totally disabled from doing the heavy type of work of a brakeman and will need continued medical care — medications, observation and supervision. Dr. Ross recommended sleep on a firm bed, certain exercises to improve muscle tone and increase the stretch and stability of same. He also prescribed medicine to relieve pain and to relax his muscles. Based on appellee’s progress to date, he doubted there would be much change between March, 1967, and March, 1997. His total bill was $225.00 and he felt appellee’s future medical requirements would be about the same as in the past.

Dr. Bellew, a chiropractor, testified by deposition that he had given appellee 112 adjustments and his fee for same was $610.00 plus $60.00 for X-rays. Although appellee testified that he secured the most relief from Dr. Bellew, appellee had not taken an adjustment after October 17, 1966. Dr. Ross did not recommend this type treatment as he believed a chiropractic adjustment would hurt the joints. Dr. Bellew testified that appellee’s condition was permanent and that he would never be able to perform the duties of a brakeman again.

Probably the most demonstrative medical testimony for appellee came on rebuttal from Dr. J. R. Oates, a medical doctor specializing in physical medicine and rehabilitation in Houston. No medical reports were furnished appellant, but about a week prior to trial Dr. Allen Kingman, a medical doctor specializing in neurosurgery, was given permission to examine appellee on behalf of appellant. He testified that although his physical examination and X-rays indicated no disability to prevent appellee from returning to his job as a switchman or brakeman, he was disappointed because appellee had not permitted a scheduled electromyelogram to be performed, in that it would show something positive — it would show if something were wrong with a muscle or the nerve to the muscle. Dr. Oates was called as a rebuttal witness and testified that he had performed such a test on appellee and that, although the test was not fully completed because of appellee’s severe reaction to same, it showed a ruptured cervical disc at the C4-C5 level. Based on the appellee’s medical history, it was his opinion that such difficulty might, in all reasonable medical probability, be quite disabling, if not constantly, at least at times. Furthermore, it could cause unbearable pain. In his opinion appellee was seriously disabled from doing any kind of heavy work or manual labor that required consistent, regular or skilled use of the arm. If appellee were under his care, he would prescribe muscle relaxants, heat and exercise, and refer appellee to a neurosurgeon to ascertain if surgery was needed, if appellee did not respond to this treatment.

Thus it is seen that although appellee was not dramatically injured, the evidence establishes that he is permanently disabled from performing the duties of a brakeman which he had performed satisfactorily for about ten years and all his adult life. Furthermore, he is disabled from performing any type of heavy manual labor. At the time of the injury, he was earning over $7,000 annually, and by the time of the trial he had lost over $8,000 in wages. He had spent approximately $1,000 for medical services and would need about the same amount of attention for the foreseeable future. The stipulated life expectancy of a male his age is 43.3 years. Assuming appellee earned $7,000 a year over his life expectancy, he would earn in excess of $300,000. It was also stipulated that money can be reasonably and safely invested in his community at 4½%. There is no showing what would be the discounted value of appellee’s prospective earnings, although a principal of $160,000 invested at 4½% would earn in excess of $7,000 annually.

There is little evidence in the record concerning the future rehabilitation of appel-lee, probably because the appellant took the position at the trial, based on its medical witnesses, that appellee was not disabled from performing his regular duties as a brakeman. The record does demonstrate that appellee is determined to be as active as possible commensurate with his .pain and disability. This is not only shown by his trying to obtain other employment before the trial, but he testified: “I have done things * * * and well it’s just hard. It’s just hard and I hurt when I do it, but still, too, I am not going to just sit somewhere and dry up. I am just not going to do it if I can keep going.” With this determination, it is reasonable to assume that appellee, who dropped out of high school as a senior, will try to find light type work in the future. It must be kept in mind, however, that he had not satisfactorily done so prior to the trial.

The jury was also instructed to consider the present cash value of the sum to reasonably compensate appellee for his past and future physical pain and mental anguish. Probably no other item of damage is more difficult to describe, define or reasonably compensate. Here appellee testified to pain he felt which restricted his movements and permitted him to sleep only on his right side; his pain was markedly demonstrated by muscle spasm to the extent that he had a reverse curvature of his upper spine; his doctors corroborated his testimony that an injury of the type suffered by appellee was very painful, and that in reasonable medical probability ap-pellee will suffer pain in the future. By its very nature the amount reasonably necessary to compensate an injured person for his past and future physical pain and mental anguish must largely be left to the discretion of the jury.

Although precedents have but little value in determining the excessiveness of a particular verdict in that each case depends largely upon its own peculiar circumstances, there are few reported cases in this State with comparable judgments. In Houston Belt & Terminal Railway Co. v. Burmester, 309 S.W.2d 271 (Tex.Civ.App.—Houston 1957, writ ref’d n. r. e.), the Court in considering the excessiveness of a judgment for $160,000 for past and future physical pain, mental anguish and diminished earning capacity of a 54-year-old ship’s officer made an exhaustive review of reported cases with a large judgment. The Court stated that at that time only one Texas case disclosed a jury verdict in excess of $100,-000. After this exhaustive review the Court ordered a remittitur of $40,000. We can take judicial notice of the ever-decreasing value of the dollar over the past decade which is reflected in verdicts and judgments.

In Missouri Pacific Railroad Co. v. Kimbrell, 326 S.W.2d 720 (Tex.Civ.App.—Texarkana 1959), affirmed 160 Tex. 542, 334 S.W.2d 283 (1960), a judgment, whereby a 33-year-old car inspector recovered $120,-000 for injuries very similar to those of appellee, was affirmed after a remittitur of $30,000. In Viking Construction Co. v. Beaird, 337 S.W.2d 699 (Tex.Civ.App.—Waco 1960, no writ), a remittitur of $31,200 was entered and judgment of $140,000 affirmed for a 46-year-old man with average annual earnings of $4,680. He did have more extensive injuries than appellee.

In Texas Consolidated Transp. Co. v. Eubanks, 340 S.W.2d 830 (Tex.Civ.App.—Waco 1960, writ ref’d n. r. e.) a judgment was affirmed wherein the surviving widow of a 63-year-old engineer earning $9,000 annually recovered $125,000 and their 13-year-old daughter recovered $37,500. In Fort Worth & Denver R. Co. v. Coffman, 397 S.W.2d 544 (Tex.Civ.App.— Fort Worth 1965, writ dism’d), judgment was affirmed whereby a 49-year-old conductor earning about $9,000 annually recovered $160,000. His injuries, like those of appellee, did not appear to be as serious as subsequent history proved.

In Robertson v. Rig-A-Lite Co., 394 S.W.2d 838 (Tex.Civ.App.—Houston 1965, no writ), a judgment was affirmed whereby a 31-year-old man earning approximately $6,000 annually recovered the sum of $500,-000. His injuries resulted in Ae loss of both hands and one leg below the knee. The Court held that this judgment was not so wrong as to require a new trial, although the Court expressly did not consider the question of a remittitur since that issue was not raised.

In Phillips Pipe Line Co. v. Razo, 409 S.W.2d 565 (Tex.Civ.App.—Tyler 1966), reversed and rendered on liability issues, 420 S.W.2d 691 (Tex.Sup.1967), the Court of Civil Appeals ordered a remittitur of $104,288 and affirmed a reformed judgment of $200,000 for a 35-year-old man who suffered what was described as a horrible injury — first, second and third degree burns over 38% of his body. It is seen that although appellee does not have as extensive or dramatic an injury as in most cases with a comparable verdict, his life expectancy is longer and his earning potential is greater.

Appellee sought $246,000 by his pleadings and from the jury. Even though the testimony of appellant’s medical witnesses would have supported a small verdict, in its brief appellant does not contend that appellee is not entitled to a substantial sum of money. Although the verdict is large, particularly in view of the fact that appellee has never spent a day in the hospital, we cannot say from this record that the verdict is so unreasonable as to require a new trial.

A more difficult question is presented as to a remittitur. The trial court has already granted a remittitur of $44,000. This still leaves a judgment for $200,000 which is unquestionably a substantial sum of money for the injury sustained by appellee. We cannot say, however, after a review of this record that the judgment as reformed is so excessive as to shock our sense of justice or is so unreasonable as to require a remittitur.

Appellee urges by counter-point that the trial court erred in requiring a remittitur of $44,000. We cannot say that such order of remittitur was manifestly unjust when considered in the light of the whole record and therefore overrule such counter-point. Flanigan v, Carswell, supra.

The judgment is affirmed.

      . The jury awarded $1,000 for past medical expenses; $20,000 for future medical services; and $223,000 for past and future physical pain and mental anguish, loss of earnings, and loss of future earning capacity.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Justice.

license: Public Domain

text:
    Loyd D. CAIN, Appellant, v. ZURICH INSURANCE COMPANY, Appellee.
    No. 17069.
    Court of Civil Appeals of Texas. Dallas.
    March 1, 1968.
    Rehearing Denied March 29, 1968.

      John Wright, Wright & Barber, Grand Prairie, for appellant.
    Robert G. Vial, Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

This is a workmen’s compensation case in which Loyd D. Cain sought recovery for total and permanent disability benefits against Zurich Insurance Company, the insurance carrier for his employer, Poco Graphite, Inc. The case was submitted to a jury on special issues and in response thereto it was found that Cain had sustained temporary total disability for a period of sixteen weeks and three days. Based upon this verdict the trial court rendered judgment in favor of Cain for such period of disability, less the compensation previously paid, and he, being dissatisfied, brings this appeal.

In his brief appellant presents sixteen points of error but in oral argument before this court states that his principal contentions are contained in his points 6 and 12 through 16, inclusive.

By his sixth point of error appellant says:

“Error occurred by act between Zurich Insurance Company and State Farm Mutual Insurance Company where Zurich gained information from State Farm Mutual Insurance Company in the form of statement given to State Farm Mutual Insurance Company.”

In his statement under this point appellant asserts that during the trial of this cause, without prior notice to him, defense counsel produced a written statement which he had given to State Farm Mutual Insurance Company some five years prior to this trial, involving another claim for personal injuries made against that insurance company, and used such statement for impeachment purposes during cross-examination of appellant. He says that at no time prior to the trial was he advised' that State Farm had given Zurich the statement nor was he given advance notice that such statement had been obtained and was to be used against him in this trial.

He argues that (1) the act on the part of the two insurance companies abridged his rights under the equal protection' clause of the Constitution of the United States, and (2) the act on the part of the two insurance companies constituted a conspiracy for the purpose of impeding the due course of justice and therefore his rights under the Civil Rights Act of 1871 (42 U.S.C.A. § 1985) were violated.

Appellant’s point is without merit and must be overruled for several reasons:

(a) The point of error was not incorporated in the amended motion for new trial and therefore cannot be considered by this court for the first time on appeal. In accordance with Rule 324, Texas Rules of Civil Procedure, appellant properly filed his motion and amended motion for new trial in which he set forth twenty-eight assignments of error. None of these assignments complain of the matters now before us in appellant’s Point No. 6. Rule 374, T.R.C.P., specifically provides that:

“The motion for new trial, when required to be filed under these rules, shall constitute the assignments of error on appeal or writ of error. A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived.”

It is settled law that in a case tried before a jury and judgment rendered upon the jury verdict the filing of the motion for new trial and its denial, either expressly or by application of law, are prerequisite to an appeal. Errors which are not brought to the attention of the court upon presentation of a timely and properly filed motion are waived and are not preserved for appellate review. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524 (1958); Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952); Kent v. Smith, 410 S.W.2d 833 (Tex.Civ.App., Tyler 1967); Bishop v. Carter, 408 S.W.2d 520 (Tex.Civ.App., Waco 1966) ; Hortenstine v. McKlemurry, 402 S.W.2d 946 (Tex.Civ.App., Waco 1966); Ballard v. Aetna Casualty & Surety Co., 391 S.W.2d 510 (Tex.Civ.App., Corpus Christi 1965).

(b) The error complained of is not fundamental. Fundamental error occurs when the error involves matter of public interest and the record affirmatively and conclusively shows error or that the court rendering the judgment was without jurisdiction of the subject matter. It has been held that error is not fundamental when it is necessary to examine the statement of facts to discover such alleged error. None of the essential elements of fundamental error appear in this record. Schafer v. Stevens, 352 S.W.2d 471 (Tex.Civ.App., Dallas 1961); McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957); Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947); City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77 (1954).

(c) Appellant did not object to the use of the statement in question during the trial of the case. It is elementary that failure to make a timely objection to proffered evidence will prevent a party from complaining on appeal of its admission by the trial court. Cross v. Houston Belt & Terminal Ry. Co., 351 S.W.2d 84, 96 A.L.R.2d 1 (Tex.Civ.App., Houston 1961, writ ref’d n. r. e.).

(d) An examination of the record reveals no evidence which would justify the charge of “conspiracy” or “impeded the due course of justice” as between the two insurance companies.

Appellant’s sixth point is overruled.

In his restatement of his Points of Error Nos. 12 through 16, appellant says:

“Reversible error exists where counsel continually ignores ruling of the court and by inflammatory use of cross-examination injects error into the record.”

In his statement under this combined group of points appellant lists thirty-nine instances by referring to the page number in the statement of facts, together with the line numbers on each page, and contends that the remarks of appellee’s counsel, as well as the court’s remarks, revealed by the thirty-nine instances constitute prejudicial error, both singly and combined, which thereby deprived appellant of a fair and impartial trial.

We find no merit in any of these points and they must be overruled for the following reasons:

(a) Appellant’s points were not properly preserved in his motion for new trial and may not be brought forth on appeal for the first time. The only ground which might possibly refer to these points is contained in paragraph 12 of the amended motion for new trial, as follows:

“That the Attorney for the Defendant, by constant and repetitious disregard for the instruction of the Court, so inflamed the Jury against the Plaintiff that he, the Plaintiff, could not and did not receive a fair trial.”

This assignment of error is too general to direct the trial court’s attention to the particular error complained about. Rule 322, T.R.C.P., specifically prohibits the court to consider grounds of objections couched in general terms. Cubine v. Morgan, 288 S.W.2d 537 (Tex.Civ.App., Amarillo 1956), and Finto v. Texas & N. O. R. Co., 265 S.W.2d 606 (Tex.Civ.App., San Antonio 1954). Rule 374, T.R.C.P., expressly states that a ground of error not distinctly set forth in the motion for new trial is waived. The specific matters complained of in appellant’s Points Nos. 13, 14 and 15 are not contained in the amended motion for new trial and are therefore waived. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960).

(b) Appellant did not move for a mistrial on account of the alleged conduct of counsel and has therefore waived his right to complain thereof. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558 (1949); Safety Casualty Co. v. Bennett, 259 S.W.2d 596 (Tex.Civ.App., Dallas 1953). Appellant in this instance, by failing to move for a mistrial, undertook to speculate on the jury verdict and by doing so he is in no position now to complain of such alleged misconduct. Colls v. Price’s Creameries, Inc., 244 S.W.2d 900 (Tex.Civ.App., El Paso 1951, writ ref’d n. r. e.); Western Cottonoil Co. v. Patterson, 271 S.W.2d 106 (Tex.Civ.App., Eastland 1954, writ ref’d n. r. e.).

(c) We have carefully reviewed each of the thirty-nine matters contained in the statement of facts. It would serve no useful purpose to unduly lengthen this opinion with a recitation of the various questions asked and the rulings of the court on each occasion. In many instances questions were asked by appellee’s counsel and appellant’s objection thereto was sustained by the court. On several occasions the court affirmatively instructed the jury not to consider the question propounded. In three instances no objection at all was made by appellant to the question propounded. In two instances there was no question asked nor objection made but rather, a discussion or colloquy between counsel and the court concerning hospital records. On one occasion the question was voluntarily withdrawn by appellee.

While we do not mean to expressly approve each of the questions propounded by appellee’s counsel, and which were objected to, yet our examination of the matters convinces us that taken singly or collectively reversible error is not demonstrated. Rule 434, T.R.C.P.

Appellant relies upon the case of Burdick v. York Oil Co, 364 S.W.2d 766 (Tex.Civ.App, San Antonio 1963), in which the appellate court reversed a plaintiff judgment in a personal injury case because of a continued series of improper questions, and other statements by plaintiff’s counsel to the court and jury. The court in that case concluded that the acts and conduct of plaintiff’s counsel were accomplished, not by indirection or an inadvertent mistake, but as a result of a calculated theory of trial. We agree with the opinion of the court but find no parallel in the instant case. From the reading of this record we cannot say that appellee’s counsel was guilty of injecting a deliberate plan or scheme to inject bias or prejudice against appellant before the jury.

Appellant’s Points 12 through 16, inclusive, are overruled.

In his Points of Error Nos. 5 and 8 appellant, in general terms, charges that the verdict of the jury and the judgment of the trial court are against the weight of the evidence. While these points are too general for our consideration yet, in the spirit of liberal construction of the rules, we have examined the statement of facts in the light of the applicable rule concerning sufficiency of the evidence and find no merit in either point. The evidence is voluminous on the question of disability alleged to have been suffered by appellant as a result of his injury. There is both lay and medical testimony, much of it conflicting. We conclude from our review of the record that there is sufficient evidence to support the verdict of the jury on each of the issues submitted.

As to appellant’s Points of Error Nos. 1, 2, 3, 4, 7, 9, 10 and 11 we find no reference to them in any assignment of error contained in the amended motion for new trial and find that none reflects fundamental error. Accordingly, in the light of the authorities above cited, these points are waived.

Even so, we have examined the various points and find none of them to reflect reversible error.

The judgment of the trial court is affirmed.


author: DIXON, Chief Justice.

text:
    Charles C. ROUGH, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Inc, Appellee.
    No. 17064.
    Court of Civil Appeals of Texas. Dallas.
    March 8, 1968.
    Rehearing Denied March 29, 1968.

      Donald Yarborough, of Yarborough, Yar-borough & Johnson, Dallas, for appellant.
    Royal H. Brin, Jr., of Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
   DIXON, Chief Justice.

This is an appeal from a summary judgment.

Appellant Charles C. Rough, formerly an employee of Southwestern Bell Telephone Company, filed this suit October 18, 1963 seeking severance benefits in an amount between $15,000 and $20,000 from his former employer. In the trial court the suit was docketed as Cause No. 81854 — D/B styled Charles C. Rough v. Southwestern Bell Telephone Company. Southwestern Bell Telephone Company will hereafter be referred to as Telephone Company.

Telephone Company filed pleas in bar and abatement and an answer to the merits, pleading an accord and satisfaction evidenced by an agreed judgment in another cause of action and by separate written releases.

Appellant in a supplemental petition alleged that the agreed judgment for $3,600 and the releases he signed pertained only to his claim for workmen’s compensation in Cause No. 68058-G styled Charles C. Rough v. Texas Compensation Insurance Company, filed prior to the filing of this suit against Telephone Company; that the $3,600 was paid by Texas Compensation Insurance Company, none of it by Telephone Company; that Telephone Company was not a party to said suit; and that the agreed judgment and written releases were not intended to cover his claim against Telephone Company for severance pay benefits.

Appellant also alleged that (1) no consideration passed for release of appellant’s claim against Telephone Company; (2) that as a matter of law no part of the $3,600 paid by Texas Compensation Insurance Company under its policy could be paid for anything but benefits provided by the Workmen’s Compensation Law; and (3) that Telephone Company was guilty of fraud which would nullify the effect of the written releases. Appellant prayed for cancellation of the releases.

Telephone Company asserts that it had a right to participate in the accord and satisfaction and the agreed judgment as a third party beneficiary.

The court sustained Telephone Company’s motion for summary judgment. Accordingly on July 27, 1967 judgment was rendered that appellant take nothing against Telephone Company in the suit now before us on appeal.

FACTS

Appellant was discharged by Telephone Company on October 20, 1961. He claims that on the same day, October 20, 1961, he sustained an injury compensable under the Workmen’s Compensation Law.

In his deposition appellant claims that he employed an attorney (not his present attorney) to file suits on both his claims— one suit against Texas Compensation Insurance Company for compensation payments, the other suit against Telephone Company for severance pay benefits. The attorney filed the suit against the Texas Compensation Insurance Company for workmen’s compensation benefits, but did not file suit against Telephone Company for alleged severance pay benefits.

On March 29, 1963 an agreed judgment was entered in the compensation suit. The judgment recites that $3,600 was paid, of which amount $1,080, or 30 per cent of the amount of the judgment, was allowed as an attorney’s fee. The judgment by its terms released both the insurance company and Telephone Company from further liability of any kind, including employee benefits. In his deposition appellant testified that on the occasion of the rendering of the agreed judgment he appeared in court. The judge asked him if that was what he wanted, if so to sign. It was in the courtroom that he then signed his written approval of the agreed judgment.

Telephone Company was not a party to the compensation suit. However, the agreed judgment was approved unconditionally and its entry requested in writing by both appellant himself and his attorney.

There was no appeal from the agreed judgment, nor has it been set aside.

In addition to the agreed judgment appellant and his attorney approved and signed a separate release, which included appellant’s claim against Telephone Company. This instrument was acknowledged by appellant before a notary public.

Appellant Rough says that before he signed the judgment and release he was told by his attorney (not his present attorney) that by signing the instruments he was not releasing his claim against Telephone Company for severance benefits and that but for such assurance he would not have signed. However, he testified that he read the judgment and release before signing. And he admits that it was only his own attorney and not any representative of Telephone Company who assured him that he was not releasing his claim against Telephone Company for severance benefits.

The sum of $3,600 was paid to appellant and his attorney by Telephone Company, as evidenced by Telephone Company’s check. On the back of the check is still another written release underneath which appear the signatures of appellant and his attorney. This was the third release signed by appellant and his attorney.

Appellant testified that some time later he discharged the attorney then representing him and employed his present attorney. The suit now before us on appeal was filed by appellant’s present attorney.

OPINION

In his one point of error appellant simply asserts that the pleadings and deposition of appellant raise a genuine issue of material fact.

We see no merit in appellant’s claim of fraud on the part of Telephone Company. He says himself that it was his own attorney, not anyone representing Telephone Company, who told him that by signing he would not be releasing Telephone Company. Moreover, the instruments he signed are not ambiguous, and no one contends that they are ambiguous, and appellant says he read them before he signed. Under the circumstances as disclosed by the testimony of appellant himself there is no basis for cancelling the releases on grounds of fraudulent representations by Telephone Company. Fidelity-Southern Fire Ins. Co. v. Whitman, 422 S.W.2d 552 (Tex.Civ.App., Houston 1967); Stegall v. Fulwiler, 423 S.W.2d 182 (Tex.Civ.App., Amarillo 1967) ; Liberty Mutual Ins. Co. v. Martinez, 407 S.W.2d 272 (Tex.Civ.App., El Paso 1966, no writ) ; Thigpen v. Locke, 363 S.W.2d 247 (Tex.Sup.1962); Morris v. Millers Mutual Fire Ins. Co., 343 S.W.2d 269 (Tex.Civ.App., Fort Worth 1961, no writ) ; Courseview, Inc. v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197 (1958); Indemnity Ins. Co. of North America v. W. L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553 (1937); Houston & T. C. R. Co. v. McCarty, 94 Tex. 298, 60 S.W. 429, 53 L.R.A. 507 (1901).

There is no merit to appellant’s contention that there was no consideration for the release of Telephone Company. The evidence shows without dispute that the $3,600 was paid to appellant by Telephone Company. Appellant accepted Telephone Company’s check and his portion of the cash proceeds, after endorsing the check under the written release recitation. See Liberty Mutual Ins. Co. v. Martinez, 407 S.W.2d 272 (Tex.Civ.App., El Paso 1966, no writ) and Burke v. Scott, 237 S.W.2d 655 (Tex.Civ.App., Austin 1951, writ ref’d n. r. e.) in regard to release of third party beneficiaries though they may be stranger both to the contract and the consideration.

The releases executed by appellant are not invalid because they have the effect of releasing both appellant’s claim against Insurance Company for workmen’s compensation and his claim against Telephone Company for employee benefits. He had the right to enter into a contract for the settlement at the same time of both claims. Liberty Mutual Ins. Co. v. Martinez, 407 S.W.2d 272 (Tex.Civ.App., El Paso 1966, no writ); Sims v. Auringer, 301 S.W.2d 286 (Tex.Civ.App., Fort Worth 1957, writ ref’d n. r. e.) ; Borden v. Sneed, 291 S.W.2d 485 (Tex.Civ.App., Waco 1956, writ ref’d n. r. e.); Westfall v. Lorenzo Gin Co., 287 S.W.2d 551 (Tex.Civ.App., Eastland 1956, no writ); Burke v. Scott, 237 S.W.2d 655 (Tex.Civ.App., Austin 1951, writ ref’d n. r. e.); James Stewart & Co. v. Law, 228 S.W.2d 601 (Tex.Civ.App., Waco 1950, affirmed 149 Tex. 392, 233 S.W.2d 558, 22 A.L.R.2d 639); Knox v. Ball, 144 Tex. 402, 191 S.W.2d 17, 23, 164 A.L.R. 1453 (1946); Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 829, 158 A.L.R. 470 (1945); Citizens Nat. Bank v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941).

It is our opinion that the record before us raises no material fact issues. Appellant’s point of error is overruled.

The judgment of the trial court is affirmed.

BATEMAN, J., did not participate in the consideration or final disposition of this appeal.

      . The judgment contains this recitation:
      “Texas Compensation Insurance Company and Southwestern Bell Telephone Company shall stand fully and finally discharged of and from any and all liability, whatsoever, to Charles C. Bough and his attorneys upon any demands, claims, controversies, actions or causes of action of any kind or character whatsoever, of any nature whatsoever, arising out of his employment with Southwestern Bell Telephone Company, including any and all claims for compensation, disability benefits, employee benefits, medical aid, hospital services, doctors, nursing, chiropractic services, medicines and prosthetic appliances, past, present and future; and
      “It appearing to the Court that the entire Judgment as above outlined, and all costs of suit have been paid and satisfied, it is so ordered that no execution issue.” (Emphasis ours.)

      . The written approval, signed by appellant and his attorney, was as follows:
      “WE, THE UNDERSIGNED, HAVE FULLY BEAD AND UNDERSTAND THE FOREGOING JUDGMENT AND AGREE TO AND REQUEST THE COURT TO ENTER THE SAME.”

      .We quote part of the release:
      “⅜ * * in consideration of the defendant’s agreement to the entry of said judgment, hereby and herein fully, finally, and forever release, quitclaim and discharge Texas Compensation Insurance Company and Southwestern Bell Telephone Company, of and from any and all liability, claims, controversies, demands, actions, or causes of action, of any kind or character whatsoever, of any nature whatsoever, arising out of his employment with Southwestern Bell Telephone Company, including any and all claims for compensation, disability benefits, employee benefits, * * (Emphasis ours.)

      . Above the endorsement of appellant and his attorney on the back of the check was the following recitation:
      “In full, complete & final release, satisfaction, and discharge of judgment rendered on the 29th day of March, 1963 in the case of Charles C. Rough vs Texas Compensation Insurance Co. No. 68058-G, 134th Judicial District Court of Dallas County, Texas, and in full and complete settlement, satisfaction, release and discharge of all claims, benefits, compensation, doctor, medical and hospital expenses, damages, demands, actions, and causes of action of every nature whatsoever known or unknown, past, present, and future, held by Charles C. Rough against Texas Compensation Insurance Company and/or Southwestern Bell Telephone Company on account of injury allegedly sustained by Charles C. Rough on or about October 20, 1961, while in the employ of Southwestern Bell Telephone Company in Dallas, Texas, and also all causes of action whether or not they grew out of said alleged injury.”


author: BELL, Chief Justice.

text:
    LIBERTY UNIVERSAL INSURANCE COMPANY, Appellant, v. John W. BODIFORD, Appellee.
    No. 15250.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    March 21, 1968.
    Rehearing Denied April 11, 1968.
    Bryan & Patton, Chilton Bryan, J. H. Westmoreland, Houston, for appellant.
    Combs, Mitchell, McDonald & Doran, Glynn W. McDonald, Houston, for ap-pellee.
   BELL, Chief Justice.

Appellee recovered judgment against appellant under a medical payment provision of a liability insurance policy. Judgment for medical payments was in the amount of $1,375.30. To this was added 12% penalty and attorney’s fees of $687.65.

The policy covered two automobiles owned by appellee. Appellee, however, received his injuries when a pickup truck belonging to the United States government which he was driving was in collision with an automobile driven by a third person.

Appellant pled that appellee' was not covered because he was occupying an automobile other than his own that was furnished for his regular use, and coverage under such circumstances was excluded by the policy.

A jury found that appellee sustained bodily injury caused by an accident “through being struck by an automobile”. It also found that the pickup truck he was driving “was an automobile not furnished for the regular use” of appellee.

Appellant’s position is that the trial court erred in not holding as a matter of law that the pickup truck was furnished for the regular use of appellee. Appellee’s position is that a fact issue was raised as to whether said truck was furnished for his regular use, and, the jury having found in his favor, he was covered under the “non-owned automobile” provision of the policy. He also contends that he was covered by another provision of the policy because he was “struck by an automobile”.

Under “Part I — Liability,” a “non-owned automobile” is defined, insofar as is material here, as “(d) a temporary substitute automobile.” “Temporary substitute automobile means any automobile * * *, not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile * * * when withdrawn from normal use because of breakdown * *

“Non-owned automobile means an automobile * * * not owned by or furnished for the regtdar use (emphasis ours unless otherwise indicated) of either the named insured * * *, other than a temporary substitute automobile. * * * ”

Part II of the policy covers “Expenses for Medical Services.” Coverage C— Division I is involved here insofar as the coverages are set out in paragraphs (b) and (c). Paragraph (b) provides coverage for the named insured “while occupying a non-owned automobile, but only if such person has, or reasonably believes he has, the permission of the owner to use the automobile. * * * ”

Paragraph (c) affords coverage to the named insured if injury .is sustained “through being struck by an automobile. ijc ⅜ ⅜ >5

There is a general provision in “Coverage C” stating that “The definitions under Part I apply to Part II, and under Part II; * * Also under “Coverage C” there is an unnumbered and unlettered paragraph labeled “Exclusions”. We think clearly the exclusions then enumerated are inapplicable to this case.

The controlling questions here are: (1) whether appellee was covered because he was occupying a “non-owned automobile” within the meaning of the policy, and (2) whether he was covered by reason of “being struck by an automobile”.

Appellee was a journeyman pipe fitter working for Graham Engineering Company, hereinafter called Graham. Graham was a contractor at N.A.S.A. doing both maintenance work and new construction for the United States government. The General Services Administration, for the government, furnished various motor vehicles, such as the pickup truck that appellee was driving when he was injured. Graham would assign certain vehicles to the various crafts working for it. There were from 30 to 40 pipe fitters working at N.A.S.A. for Graham. Several vehicles were assigned by Graham to the pipe fitters. Such vehicles were under the control of the foreman. Appellee could not at will use any of them. They could not be used for personal use, but only for work being done by Graham for N.A.S.A. Even if appellee or other pipe fitters wanted a vehicle for use in his work he must obtain the permission each day of the foreman who had charge of the vehicles. Appellee on occasion had been denied use of some of the vehicles. This permission had to be obtained each time a person wanted to use a vehicle. Different vehicles might be assigned to appellee or other workmen from time to time. Ap-pellee had occasion to use one of the vehicles once or twice a week. The vehicles were used to transport materials and tools to and from a particular job site.

At the time of the collision in which ap-pellee was injured, he was driving one of the vehicles. He was returning from some work he had been doing near Ellington Air Force Base. He was driving a pickup truck he had gotten permission to use that day. Other co-workers were with him. The collision occurred at the intersection of two public highways, to wit: “N.A.S.A. One” and “Upper Bay Road”. A Ford station wagon driven by a Mr. Joe Pacetti ran into the pickup truck, hitting it just behind the door on the side on which ap-pellee was riding. Mr. Pacetti ran a red light.

We are of the view that appellee, under the facts of this case, was clearly covered by that provision of the policy which provides for medical payments to the insured for bodily injuries sustained “through being struck by an automobile”.

We deem the reasoning of the Supreme Court in the case of Hale v. Allstate Insurance Co., 162 Tex. 65, 344 S.W.2d 430, to be applicable and controlling here. There Hale had a medical payment policy covering an owned Mercury automobile. Medical payments would be paid him if he received bodily injury while occupying it or by being struck by an automobile. He thereafter purchased a Ford pickup truck. While the Ford was added to the policy as to other types of coverage, the following endorsement was made to the policy with regard to medical payments:

“Except with respect to bodily injury under Coverage C 1- — Medical Payments —Automobile, resulting from the named insured or any relative thereof being struck by an automobile if such coverage is afforded, it is agreed that the policy does not apply to the automobile described below or any automobile acquired as a replacement thereof.”

The “automobile described below” was the Ford.

Afterward Hale and his wife were driving the Ford, and were in collision with an automobile driven by a third party. The insurer denied liability, contending since they were occupying the Ford they owned and since it was not covered by the “Mercury” policy as “an owned automobile”, they could not recover. The “Mercury” policy provided medical payments for bodily injury resulting from being struck by an automobile. The Hales claimed under this latter provision. The insurer asserted the two provisions were two separate and mutually exclusive provisions. The Supreme Court held such coverages were not mutually exclusive, but were overlapping and, under the facts, that is, the Hales were struck by an automobile driven by a third party, they were, therefore, covered even though they were occupying an automobile they owned that was not covered as “an owned automobile”.

The Dallas Court of Civil Appeals held the same in the case of Cockrum v. Travelers Indemnity Co., 420 S.W.2d 230, n. w. h.

In this case appellant contends appellee is not covered under the facts we have recited because he was not occupying “an owned automobile” or a “non-owned automobile” within the meaning of the policy. We hold there was coverage under “Coverage C, Division 1 (c) ”, which provides for medical payments for bodily injury received by being struck by an automobile.

Holding as we do, it is unnecessary for us to pass on whether the pickup truck was a “non-owned automobile” within the meaning of the policy, and we express no opinion thereon.

Appellant further asserts as error the allowance of a 12% penalty and attorney’s fees because appellee did not plead either as a condition contained in the insurance contract, nor did he plead the same as being provided by a state statute.

In his petition appellee alleged the policy of insurance for medical payments; that he was injured in an automobile accident October 4, 1965, whereby the policy became effective; that he made due proof of loss, but appellant had refused and was refusing to make payments due under the policy.

In paragraph IV of the petition he alleged that because of such refusal it had become necessary for him to employ counsel to represent him in this proceeding. He then alleges “that by reason of the refusal of said defendant to make payment in accordance with the terms of the policy, it has become additionally liable for reason-ale attorney’s fees * * * plus statutory penalties in the amount of 12% under the laws of the State of Texas.” There was a prayer “for the full amount of his damages, all costs of court, and such other and further relief, at law and in equity, to which he may show himself justly entitled.”

Appellant filed various special exceptions, including some directed to the allegations with regard to penalties and attorney’s fees. We do not find that they were acted on by the court. It being the duty of the party levying exceptions to obtain action on them by the court, and we finding no action taken by the court, they were waived.

We are of the view that the pleading was sufficient to assert the right to the statutory penalty and attorney’s fees. Washington National Insurance Co. v. Kohlenbrener, 329 S.W.2d 956 (Tex.Civ.App.), ref., n. r. e. We are also of the view that they are recoverable under Insurance Code, Section 3.62, V.A.T.S. American Indemnity Co. v. Garcia, 398 S.W.2d 146 (Tex.Civ.App.), ref., n. r. e.

Affirmed.


author: WALTER, Justice.

text:
    In re ESTATE of D. M. COGDELL, Deceased.
    No. 4229.
    Court of Civil Appeals of Texas. Eastland.
    March 15, 1968.
    Rehearing Denied April 5, 1968.

      Gene L. Dulaney, Snyder, Cantey, Hanger, Gooch, Cravens & Scarborough, Whitfield J. Collins, Ft. Worth, for appellant.
    Lynch, Chappell, Allday & Hamilton, James M. Alsup, Midland, for appellee.
   WALTER, Justice.

D. M. Cogdell died in 1964 leaving a will in which he appointed Jonisue Cogdell Bow-den, William Munsey Cogdell and David Martin Cogdell, Jr., independent executors of his estate. Marion P. Cogdell filed suit against the executors in the County Court seeking to have them file a corrected inventory and list of claims and make a speedy and equitable distribution of the estate. He also asked for an order requiring them to give bond under Section 149 of the Probate Code, V.A.T.S.

This is an appeal by the independent executors from an order of the District Court, on appeal from the County Court, overruling their plea in abatement and motion to dismiss.

The appellee, Marion P. Cogdell, is a son of D. M. Cogdell. D. M. Cogdell devised one-tenth of his residuary estate for a period of ten years to The Fort Worth National Bank as trustee of the Marion P. Cogdell trust of which Marion P. Cogdell is designated as primary beneficiary.

The appellants contend the court erred in overruling their plea in abatement and motion to dismiss because the appellee is without legal capacity to bring such a suit, and because the court had no jurisdiction to hear appellee’s application. They also contend the appellee’s pleadings were insufficient to support his application to require appellants to post a bond. The appellee contends the order overruling appellants’ plea in abatement and motion to dismiss is an interlocutory order and not appealable. We agree.

It is true that the legal title to property placed in the trust is in the trustee for a period of ten years but the beneficial title vested in the beneficiaries of the trust. Rekdahl v. Long, (Sup.Ct., 1967), 417 S.W.2d 387. In Laros v. Hartman, 152 Tex. 518, 260 S.W.2d 592 (1953), the Supreme Court said:

“The language ‘any person interested in the estate of a decedent’ has been construed by our courts as meaning one ‘who either absolutely or contingently is entitled to share in the estate or the proceeds thereof.’ ”

The order overruling the plea in abatement was interlocutory and not appeal-able for the reason that it did not dispose of the controverted issue for which that particular part of the probate proceeding was brought, to-wit, that Marion P. Cogdell was without capacity to file his application requiring correction of inventory and list of claims, partition and distribution and bond. Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385 (1945); Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210 (1960).

In Kelley v. Barnhill the Supreme Court held that the order overruling a plea in abatement did not dispose of the issue before the court and was an interlocutory order and not appealable.

In Fischer v. Williams, the Supreme Court said:

“Under Section 28 of the Probate Code, formerly Article 3698, Revised Civil Statutes of Texas, in order to authorize an appeal in a probate matter, it must be an appeal from a decision, order, decree, or judgment which finally disposes of and is conclusive of the issue or controverted question for which that particular part of the proceeding was brought. See Halbert v. Alford, 82 Tex. 297, 17 S.W. 595. We interpret Section 28, supra, to mean that it has application only to such decisions, orders, or judgments as at the end of a term would be held to have conclusively adjudicated some controverted question or right, unless set aside by some proper appellate or revisory procedure. See Lehman v. Gajewsky, 75 Tex. 566, 12 S.W. 1122. If the motion to dismiss the contest on the ground that contestants had failed to show an interest in the estate had been sustained, the order would have finally disposed of the controverted question involved, and would have been appealable. Since the order overruling respondents’ motion to dismiss failed to finally dispose of the controverted issue, it, therefore, amounts to no more than an interlocutory order, inconclusive in its nature, made in the progress of the trial, and, therefore, not appealable. See Thomas v. Hawpe, 25 Tex.Civ.App., 534, 62 S.W. 785, wr. ref. The trial procedure, as outlined in the case of Kelley v. Barnhill, supra, may be appropriately followed in the instant case.”

We sustain appellee’s motion to dismiss the appeal. The appeal is dismissed.


author: SHARPE, Justice.

text:
    FALFURRIAS CREAMERY COMPANY, Appellant, v. John R. SANDERS et al., Appellees.
    No. 367.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 28, 1968.

      William C. Church, Jr., of Kampmann, Kampmann, Church & Thomas, San Antonio, for appellant.
    Jack Wiech, Brownsville, for appellees.
   OPINION

SHARPE, Justice.

This suit was brought by John R. Sanders, individually and as next friend for his two minor sons, to recover damages allegedly sustained by him, his wife and sons as a result of eating food which contained salt-free butter processed and packaged in a sealed carton by appellant. Falfurrias Creamery Company, a corporation having its domicile in Falfurrias, Brooks County, Texas. Appellant’s plea of privilege was duly controverted by appellees who relied upon Subdivision 23 of Article 1995, Vernon’s Ann.Civ.St., which provides in part that suit may be maintained against a corporation in the county where the cause of action or a part thereof arose. Trial was to the court without a jury. The trial judge, though timely requested by appellant, declined to file findings of fact and conclusions of law.

By two points of error appellant contends that the trial court erred in overruling its plea of privilege because: (1) Appellees failed to establish a cause of action against appellant under a breach of warranty theory, and (2) Appellees failed to prove all facts necessary to sustain venue in Cameron County, Texas.

Under point one appellant contends that appellees’ cause of action was not established for venue purposes because there was no evidence that the salt-free butter was adulterated or that it caused the illnesses suffered by appellees.

We review the judgment overruling appellant’s plea of privilege in view of appellant’s “no evidence” contention under the well settled rules that we must assume the trial court found every issuable fact in support of the judgment; that in determining legal sufficiency of the evidence to support implied findings, that if, discarding all adverse evidence and giving credit to all evidence favorable to the prevailing party and indulging every legitimate conclusion favorable to him which might have been drawn from the facts proved, the fact-finder might have found in his favor, it is to be concluded that there is evidence to support the finding; that every reasonable intendment must be resolved in favor of the judgment and it should be affirmed if there is any evidence to support it upon any theory authorized by law. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953); James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959) ; Drexler v. Architectural & Commercial Sales, 375 S.W.2d 550 (Tex.Civ.App., Corpus Christi, 1964, n.w.h.).

At the hearing on the plea of privilege John R. Sanders, Mrs. Virginia N. Sanders and Thomas B. Thompson were called as witnesses by appellees. Appellant offered no testimony except that of Mrs. Sanders, who was recalled as an adverse witness after appellees had rested their direct case. The testimony of Mr. and Mrs. Sanders was in substance as follows: On Tuesday before Thanksgiving Day 1966, Mrs. Sanders, while in the company of her husband and two minor sons, purchased from a supermarket in Brownsville, Texas a turkey and other items for the preparation of Thanksgiving dinner on November 24, 1966. An eight ounce carton of Falfurrias Creamery salt-free butter was included in the items so purchased. The lid of the carton was recessed into it, flanged over the top and sealed by machine-crimping. Mrs. Sanders used the salt-free butter on the turkey, dressing, string beans, potatoes and rolls, but not on the salad or cranberries. The family commenced eating their Thanksgiving dinner at about 2 o’clock P. M., on November 24th. The oldest son, age 8 years, first became ill and vomited on the dinner table. Shortly thereafter, Mrs. Sanders, the younger son, age 4 years, and Mr. Sanders also became ill. The eating stopped. Mrs. Sanders wrapped the food in their serving dishes and placed them in the refrigerator along with the remainder of the salt-free butter. Later on the same day Mr. and Mrs. Sanders tasted the butter and it had the same taste as the food, except the salad and cranberries. Both Mr. and Mrs. Sanders testified that they could not eat the food which had been prepared with the salt-free butter and didn’t think any human could. Mrs. Sanders said a sickening taste was more pronounced where the butter had not been cooked and had only been used to serve with.

Mrs. Sanders contacted the distributor of the butter and Mr. Thomas B. Thompson, an adjuster for the distributor, came to the Sanders’ home the day following Thanksgiving. Thompson testified that Mrs. Sanders took the carton of butter from the refrigerator and he examined the contents; that about two or three ounces of butter remained; that it had no odor and appeared to he fresh; that it had a foreign taste and did not taste what butter would normally taste like; that he later associated the taste with caustic soda, which is a cleanser. The latter statement was based, at least in part, on a prior experience of the witness, to which the trial court sustained some objections, but portions of the testimony in such connection appear in the record without objection. Thompson took a statement from Mr. and Mrs. Sanders and paid them $50.00 for a covenant not to sue the distributor.

Under applicable rules the evidence was legally sufficient to raise an issue as to the liability of appellant, including the issues of whether the butter was contaminated or unfit for human consumption and that its use by appellees proximately caused the illnesses and damages in question. Appel-lees’ cause of action is based upon breach of implied warranty of fitness of food for human consumption as stated in Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828 (1942), 142 A.L.R. 1479. See, also McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967); O. M. Franklin Serum Company v. C. A. Hoover & Son, 410 S.W.2d 272 (Tex.Civ.App., Amarillo, 1967, wr. ref. n. r. e. with per curiam opinion, 418 S.W.2d 482 (Tex.1967)). The last-cited case is a products liability case involving proof of a cause of action for venue purposes by circumstantial evidence, and supports appellees’ position here in that respect. The case of Athens Canning Company v. Ballard, 365 S.W.2d 369 (Tex.Civ.App., Houston, 1963, n. w. h.), a venue case involving similar issues to those presented here, also supports appellees’ contentions under their reply point one that the evidence was legally sufficient to raise liability issues against appellant and to support the findings in favor of appellees impliedly made by the trial court. Appellant’s point one is overruled.

Under its point two appellant contends that appellees offered no evidence that the salt-free butter in question was manufactured, processed and sold by appellant or that it was delivered to the supermarket in Brownsville, as alleged in appel-lees’ petition. The undisputed evidence is that appellant, Falfurrias Creamery Company is a corporation domiciled in Falfurrias, Brooks County, Texas. Appellees’ evidence showed that the carton of salt-free butter purchased by Mrs. Sanders at the supermarket in Brownsville was marked “Made by Falfurrias Creamery, Falfurrias, Texas.” In this state of the record and in the absence of any evidence to the contrary, the evidence was legally sufficient to establish prima facie that the salt-free butter was manufactured, processed and sold by appellant. See Globe Laundry v. McLean, 19 S.W.2d 94 (Tex.Civ.App., Beaumont, 1929, n. w. h.), and the many cases following it shown by Shepard’s Southwestern Reporter Citator. Appellant’s point two is overruled.

The judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    KELLY MOORE PAINT CO. of Texas, Appellant, v. NORTHEAST NATIONAL BANK OF FORT WORTH, Appellee.
    No. 16903.
    Court of Civil Appeals of Texas. Fort Worth.
    March 15, 1968.
    Allen, Bowles & Rogers, and William F. Bowles, Dallas, for appellant.
    King & Massey, and Marion L. Massey, Fort Worth, for appellee.
   OPINION

RENFRO, Justice.

This suit was brought in the nature of an equitable bill of review by “Northeast National Bank of Fort Worth” to set aside a default judgment theretofore rendered against “Northeast National Bank” in favor of Kelly Moore Paint Co. of Texas.

The bill of review was granted and Paint Co. appealed.

On January 16, 1967, Paint Co. filed its application for writ of garnishment before judgment, in which it alleged that it had sued A1 Kincade for $1,008.90 and it believed Northeast National Bank was indebted to A1 Kincade.

On May 1, 1967, Paint Co. obtained a default judgment against Northeast National Bank for the above amount.

The Northeast National Bank of Fort Worth filed this bill of review on June 29, 1967, and on July 26, 1967, judgment was rendered for the Bank.

In response to request for findings of fact and conclusions of law the court found, among other findings not material here, that the citation in the garnishment action has an entry made by the serving officer which states that service of citation was made by “delivering to the within named Garnishee, Northeast National Bank, (a corporation, by delivering to) Douglas R. Wosley, Cashier and Registered Agent, in person, a true copy of this writ”; the correct legal name of the defendant is “Northeast National Bank of Fort Worth”; the deputy sheriff did not serve the citation upon Douglas R. Wooley or Douglas R. Wosley, personally at any time; no copy of plaintiff’s petition was attached to the citation; Douglas R. Wooley was not a “cashier” or a “registered agent” of Northeast National Bank of Fort Worth on January 17, 1967; Northeast National Bank of Fort Worth was not given notice of default judgment taken against “Northeast National Bank” pursuant to Rule 239a, Texas Rules of Civil Procedure; on January 17, 1967, Al Kincade had on deposit with the Northeast National Bank of Fort Worth the sum of $6.82; although Wooley saw the citation on his desk sometime during the 17th he was not negligent in failing to deliver it to his superior or the bank’s attorney; the Bank had a meritorious defense in that A1 Kincade’s deposit amounted to only $6.82 and not $1,008.90; Bank was not at fault and was not negligent in failing to present its defense.

The court’s findings refer to Douglas R. Wooley. The statement of facts, however, shows the last name to be spelled Woolley and the President of the Bank so spelled it.

The President of the Bank testified that Bank mail comes either to his desk or to the desk of Woolley, but that all legal matters are supposed to come to his desk. He never saw or heard of the garnishment writ until long after the default judgment had become final.

A vice president of the Bank testified he never heard of the garnishment suit until the latter part of June.

The deputy sheriff whose name is signed on the return testified she served a young man in the middle of the room (bank lobby?). She did not remember his name or physical appearance. Nearly all of her answers were based on what she “always does” when she serves a legal paper. She remembered asking his name but could not remember his answer. Although Woolley was present with the other witnesses outside the courtroom, she did not recognize him as the man she served.

Woolley testified he was not a cashier on January 17, and never told anyone he was such; he was an assistant cashier on that date; he was never served with a garnishment citation; he has never been served with a citation by a female officer; at bill of review trial he saw the deputy whose name appears on the return, he had never seen her before; sometime on January 17 he saw the citation on his desk, and seeing that it pertained to Kincade’s account he caused a “Hold” to be placed on Kincade’s account; nothing was attached to the citation; he placed the citation in his correspondence file; he never heard any more about the garnishment and did not know a default judgment had been entered; he received no notice of default judgment from the district clerk’s office.

The trial court could reasonably assume that since all legal matters, under the Bank’s usage, were to first go to President Brinkley, Woolley, not having been served personally with citation, was justified in thinking the citation found on his desk either did not qualify as a “legal matter” or that the President of the Bank had already seen it.

In Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950), the Supreme Court held: “Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.”

Admittedly the Bank proved (1) a meritorious defense, (2) the Bank wholly failed to show it was prevented from making that defense by fraud, accident or wrongful act of the opposite party, (3) the Bank proved to the satisfaction of the court that its failure to defend was unmixed with any fault or negligence of its own.

Relief by bill of review is made available by Rule 329b (5), T.R.C.P. The rule does not prescribe the standard by which the actions of a defaulting party must be measured except to say that the bill must be for sufficient cause and be filed within the time allowed by law. This bill was filed within the time allowed by law. The question is whether sufficient cause existed.

A bill of review proceeding is an equitable one designed to prevent manifest injustice.

There can be no question but a manifest injustice would be done the Bank if the default judgment were allowed to stand. The Bank never owed the Paint Co. anything except by virtue of the default judgment. It is not a case of a litigant endeavoring to avoid payment of a just debt or obligation. The evidence is undisputed that Kincade had on deposit in the Bank on January 17 the sum of $6.82. There was no conceivable way in which the Paint Co. could have recovered against the Bank any sum in excess of that amount had the Bank had the opportunity to defend the suit.

We believe the evidence, although conflicting in part, supports the court’s finding that the Bank was never served with citation. If we are correct, then of course, the court was correct in allowing the bill of review regardless of the fact that the Paint Co. was free of fault. We affirm the judgment on that basis.

Further the court found the Bank was not at fault and was not negligent in failing to present its defense and that Northeast National Bank was not given notice of the default judgment pursuant to Rule 239a, T.R. C.P.

Rule 239a provides: “At or immediately prior to the time an interlocutory or final default judgment is rendered, the party taking the same or his attorney shall certify to the clerk in writing the last known mailing address of the party against whom the judgment is taken, which certificate shall be filed among the papers in the cause. Immediately upon the signing of the judgment, the clerk shall mail a post card notice thereof to the party against whom the judgment was rendered at the address shown in the certificate, and note the fact of such mailing on the docket. The notice shall state the number and style of the case, the court in which the case is pending, the names of the parties in whose favor and against whom the judgment was rendered, and the date of the signing of the judgment. Failure to comply with the provisions of this rule shall not affect the finality of the judgment.”

The evidence is conclusive that such notice, or any other notice, was not given to the Bank, although Paint Co. supplied the clerk with the required information.

That there are exceptions to the requirement that element (2) set out in Hagedorn was recognized by the court in its opinion, wherein it was pointed out that relief has been granted where a judgment was rendered against a party in consequence of some mistake or fault of a clerk of the court, where there was no negligence on the part of the litigant, or where the negligence was excusable.

One of the official duties of the clerk is to know “what his office records show with respect to pending litigation.”

In Hanks v. Rosser, 378 S.W.2d 31 (1964), the Supreme Court held: “* * * we hold, within the spirit of the Hagedorn opinion, and assuming that the failure to file an answer is not intentional or the result of conscious indifference, that if a litigant is misled or prevented from filing a motion for new trial by misinformation of an officer of the court, acting within his official duties, and this misinformation is given to the party or his counsel within the ten-day period for filing the motion for new trial so as to bring about the failure to file a motion for new trial in time, the trial court, upon finding that the party has a meritorious defense and that no injury will result to the opposite party, may grant the bill of review.”

Particularly applicable to the instant case, in view of the evidence heretofore set out, is the following statement from the Hanks case: “The court found that Hanks was not negligent in failing to file his answer in time, and that the failure to answer was due to accident or mistake. By necessary implication, this means that the trial court was of the opinion that Hanks did not intentionally fail to answer, and that his failure to answer was not caused by conscious indifference. * * * There was evidence that Hanks did not owe Rosser the money. Under these circumstances Hanks made out a prima facie case of proving the negative: no injury to Rosser. The burden of going forward shifted to Rosser. There was no evidence that Rosser would have been damaged in any respect by the granting of the bill of review, and no effort was made to introduce any such evidence.”

In the recent case of Gracey v. West, 422 S.W.2d 913 (1968), the Supreme Court, after discussing the rule in Hagedorn, stated: “The Rosser case modified the rule to the extent that where an officer of the court gives wrong information which prevents the filing of a motion for new trial by the losing party, the movant in a bill of review is excused from complying with requirement (2) * *

In the instant case the clerk in his official capacity did not give Bank wrong information. His failure to give the required notice did not prevent Bank from filing a motion for new trial. The clerk did, however, fail to perform an affirmative official duty required by law. If the notice had been given as required by Rule 239a, Bank, in all reasonable probability, would have filed a motion for new trial.

Bank, not being otherwise negligent, or at the most guilty of excusable negligence, was entitled to urge such failure of notice as a ground for equitable bill of review even though it was not prevented from answering by fraud, accident or wrongful act of the opposite party.

All of Paint Co.’s points of error have been carefully considered. Each and all are overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: LANGDON, Justice.

text:
    Virgil OATES, Appellant, v. Pansy YANCEY et al., Appellees.
    No. 16910.
    Court of Civil Appeals of Texas. Fort Worth.
    March 22, 1968.
    Rehearing Denied April 19, 1968.

      W. B. Woodruff, Jr., Decatur; Stras-burger, Price, Kelton, Martin & Unis, and Royal H. Brin, Jr., Dallas, for appellant.
    Sewell & Forbis, Decatur; Kelsoe & Stone, and Harold B. Stone, Dallas, for appellees.
   OPINION

LANGDON, Justice.

This is a suit by two sisters, Pansy Yancey and Mitron Carpenter, joined pro forma by their husbands, for personal injuries and property damage as the result of a collision.

The collision involved the Yancey automobile, being driven by Mrs. Carpenter, and a pickup truck being driven by Virgil Oates. At the time of the collision Mrs. Yancey was seated in the right front seat beside Mrs. Carpenter. The parties will be referred to as in the trial court.

The court found as a matter of law that the plaintiffs were, at the time in question, engaged in a joint venture. The remaining issues were tried to a jury which found both drivers guilty of negligence which was a proximate cause of the collision. The defendant moved for judgment. Plaintiffs moved that the jury findings of negligence and proximate cause on the part of Mrs. Carpenter be disregarded. The court granted this latter motion and rendered judgment for the plaintiffs for damages as found by the jury.

The defendant on appeal contends the trial court erred in disregarding the jury findings and in rendering judgment for the plaintiffs in the face of findings of negligence and proximate cause chargeable to each of the plaintiffs as joint adventurers and in overruling defendant’s motion for judgment.

We reverse and render.

Since the points are all closely interrelated, they will be discussed as a single point.

The jury found that the defendant Oates was negligent in his failure to yield the right of way, in failing to keep a proper lookout, and in failing to apply his brakes, and that each of such negligent acts or omissions was a proximate cause of the collision. The jury refused to find from a preponderance of the evidence that the plaintiff, Mrs. Carpenter, failed to keep a proper lookout or that her failure to sound her horn as she approached the intersection or to slow down before entering same was negligence. The jury also found that neither the plaintiff (Mrs. Carpenter) nor the defendant was driving at an excessive rate of speed and that neither was negligent in failing to turn to the right or to the left “on the occasion in question.” The jury found in response to Special Issues Nos. 18 and 19, respectively, that Mrs. Carpenter’s failure to apply her brakes “on the occasion in question” was negligence and a proximate cause.

The plaintiffs’ motion to disregard the jury findings in answer to Special Issues Nos. 18 and 19 was based upon the grounds that there was no evidence of probative force to raise such issues or to support such findings and that the uncontradicted and undisputed evidence establishes that Mrs. Carpenter as a matter of law had the right of way. Further, that the affirmative findings of care on the part of the plaintiff in the particulars above enumerated and the negligence and proximate cause on the part of the defendant negatives the existence of any evidence of probative force to sustain the findings in question.

The order sustaining the plaintiff’s motion to disregard the answers of the jury to Special Issues Nos. 18 and 19 contain no reference as to what ground or grounds the court relied upon as a basis for its order.

On the matter of right of way the plaintiffs contend that since the Carpenter driven automobile entered the intersection first and was to the right of the pickup that it had the right of way, thus “there was simply no duty upon the Carpenter car to do anything but proceed on through the intersection.” This argument is untenable. A driver wtih the right of way is not un-qualifiedly relieved from the exercise of such care as a person of ordinary prudence would exercise under the same or similar circumstances. This same standard of conduct applies to a driver who has the right of way at an intersection. Goshorn v. Hattman, 387 S.W.2d 422 (Beaumont Civ. App., 1965, ref., n. r. e.); Skyline Cab Co. v. Bradley, 325 S.W.2d 176 (Houston Civ. App., 1959, ref., n. r. e.); Watts v. Dallas Railway & Terminal Co., 279 S.W.2d 400 (Dallas Civ.App., 1955, ref., n. r. e.); Walsh v. Dallas Railway & Terminal Co., 140 Tex. 385, 167 S.W.2d 1018 (1943); Joe D. Hughes, Inc. v. Moran, 325 S.W.2d 829 (Fort Worth Civ.App., 1959, ref., n. r. e.); De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (1955).

In the latter case the court held that the plaintiff with the right of way on a one-way street still had the duty to exercise ordinary care and could not proceed in disregard of dangers that might reasonably be anticipated. See also Richardson v. Henderson, 424 S.W.2d 510 (Waco Civ.App., 1968).

“We treat the plaintiffs’ motion to disregard the unfavorable jury findings as being based upon the absence of evidence of probative force to support the findings. However, the motion states that this is so when consideration is given to the answers of the jury to other special issues by which it failed or refused to find her negligent in other respects. The court of civil appeals, in overruling defendant’s points of error and affirming, seems also to have given some weight to the jury’s answers to other special issues. This manner of evaluating ‘no evidence’ points is impermissible. C. & R. Transport, Inc. v. Campbell, Tex.Sup., 406 S.W.2d 191, at 194 (1966). Our problem then is whether, disregarding other jury findings, there is evidence of probative force in the record supporting the jury’s answers to issues 12 and 13. The court of civil appeals has held there is no evidence to support either finding. We disagree.” Enloe v. Barfield, 422 S.W.2d 905 (Tex.Sup., 1967).

Under the holding in the Enloe case the jury’s answer to Special Issue No. 18 “should not have been disregarded if the evidence will support a reasonable conclusion that a person of ordinary prudence similarly situated” would not have failed to apply the brakes of the car she was driving. The following facts testified to in the main by Mrs. Carpenter have a bearing on this question:

The collision occurred at approximately 4.T5 P.M. on Thanksgiving, November 25, 1965, at the uncontrolled intersection of Oak and Floyd Streets in Paradise, Wise County, Texas. The streets were approximately equal in width and each was paved to a width of 20 to 24 feet. Oak Street runs east and west and Floyd Street runs north and south. Prior to the collision the pickup truck being driven by the defendant was proceeding north on Floyd Street and the automobile driven by Mrs. Carpenter was proceeding east on Oak Street, each headed for the intersection. The streets were level. It was a dry day. Visibility was good. It was an open intersection in that drivers approaching it commanded a good view of traffic coming into it from other directions and particularly as regards the view of the parties here involved.

There is not a great deal of traffic at the intersection. It is situated in a semi-residential area. The only witnesses to the collision were the parties involved. Mrs. Yancey offered little testimony as she was not looking in the direction of the pickup. There were no stop signs or signals, automatic or otherwise, at any entrance to the intersection. As Mrs. Carpenter drove west on Oak Street she looked down Floyd Street to her left and saw the pickup truck driven by the defendant, “more than one-half a block away.” The pickup “was three or four times the distance from the intersection than I — or we were.” Mrs. Carpenter was able to see the pickup from the time she passed a church which she estimated was thirty feet from the intersection. There was other testimony that the church was perhaps one hundred or more feet from the intersection which would have enabled her to see the pickup sooner. She estimated the speed of the pickup at about 40 miles per hour which would have placed it at the intersection about the same time as her automobile if each vehicle maintained the same speed. She had estimated her speed at 15 miles per hour. Mrs. Carpenter was aware of the pickup at all times as she approached the intersection. She testified, “and I knew he was there and knew he was coming towards the intersection.” And at another point, “He was going much faster than I was is all I can say.” Mrs. Carpenter testified that she did not at any time reduce her speed, speed up, or apply her brakes. (Mrs. Yancey testified to the same effect as to the operation of the automobile.) “I just drove on in the speed that I — that I had.” Although from her testimony Mrs. Carpenter saw the pickup and was aware of its approach to the intersection at greater speed than she was traveling she testified, “Well, I just drove on into the intersection because I saw that I had the right of way.” The record reflects that the vehicles reached the intersection at approximately the same time with the automobile driven by Mrs. Carpenter slightly in the lead.

Utilizing the language employed by Chief Justice Calvert in Enloe v. Barfield, 422 S.W.2d 905, supra, and substituting the name of Mrs. Carpenter in lieu of Mrs. Barfield and the wording of the issue here involved in lieu of the one in the Enloe case will demonstrate the application of the holding in Enloe to the issues and parties involved in this case, with the substitutions being italicized as follows:

In considering the undisputed facts in this case, “we are unable and unwilling to hold that there is no evidence to ■'support the jury’s finding that a person of ordinary prudence would not have failed to apply the brakes of her car on the occasion inquired about. The jury could have concluded that Mrs. Carpenter, as a person of ordinary prudence, should not have failed to apply her brakes. And if a person of ordinary prudence would not have failed to apply the brakes of her car as did Mrs. Carpenter she owed a legal duty to apply her brakes and was negligent when she breached the duty.

“We are equally convinced that the evidence supports the jury’s finding that Mrs. Carpenter’s negligence in failing to apply her brakes con the occasion in question,’ was a proximate cause of the collision. In this State, a finding of ‘proximate cause’ cannot be sustained unless there is proof of cause in fact and foreseeability. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961); Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951). The court’s charge to the jury in this case defined the term ‘proximate cause’ in customary language; it required a finding of both cause in fact and foreseeability.

“That there is evidence supporting the finding of cause in fact is beyond cavil. The jury could find from the evidence, with reason, that the collision would not have occurred if Mrs. Carpenter had not failed to apply the brakes of the automobile she was driving. Moreover, the jury could find from the evidence, with reason, that a person of ordinary prudence exercising ordinary care should have reasonably anticipated and foreseen that the collision, or a similar one, would occur as a natural and probable consequence of her negligent act. Courts are authorized to set aside jury findings on questions of proximate cause because of the absence of evidence to support them only in exceptional cases. Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982, at 983 (1941). This is not such a case.

“The plaintiffs did not, as is authorized by Rule 324, Texas Rules of Civil Procedure, cross-assign as error * * * that the jury’s answers to special issues 18 and 19 were against the overwhelming preponderance of the evidence.” Although a considerable portion of appellees’ brief is devoted to argument that there was no joint enterprise between Mrs. Yancey and Mrs. Carpenter there is no cross appeal and no cross assignment of error relating to this matter. No issue as to joint enterprise was submitted nor requested. There was no objection or complaint as to the court’s failure to submit such an issue. The judgment of the court containing the recitation of its finding on joint enterprise was not excepted to or complained of in any manner which directed the court’s attention to such complaint or the basis thereof. The ap-pellee is required by Rule 324, T.R.C.P., to carry forward by cross points all such complaints.

“The trial court, in a case such as we have before us, must be apprised of any complaint or objection the successful party has to the judgment.” West Texas Utilities Company v. Irvin, 161 Tex. 5, 336 S.W.2d 609, 610 (1960); First Nat. Bank in Graham v. Corbin, 153 S.W.2d 979 (Fort Worth Civ.App., 1941, ref. w. o. m.); Tarin v. Tarin, 340 S.W.2d 364 (San Antonio Civ.App., 1960, ref. n. r. e.); Poss v. Anderson, 188 S.W.2d 726 (Amarillo Civ.App., 1945, ref. w. m.).

Although the question is not properly before us we are of the opinion that the trial court’s finding was correct.

“A ‘joint enterprise,’ for the purpose of applying the rule here involved, is defined as such a legal relationship between two or more persons as will impose responsibility on each joint adventurer for the negligent acts of the others, while they are acting in furtherance of their common undertaking. Two elements are necessary to show the existence of a joint enterprise. These elements are (1) proof of a joint interest in the object and purpose of the enterprise, and (2) proof of an equal right on the part of all the parties, either express or implied, to direct and control the conduct of each other in attaining the objectives and purposes of the enterprise. * * * ” 7 Tex.Jur.2d 614, § 247. See also Straffus v. Barclay, 214 S.W.2d 826 (Amarillo Civ.App., 1948), affirmed by Supreme Court, 147 Tex. 600, 219 S.W.2d 65 (1949).

The elements necessary to show the existence of a joint enterprise on the part of Mrs. Carpenter and Mrs. Yancey were in our opinion established as a matter of law by their undisputed testimony. The trial court was correct in so holding.

In holding as we do that a driver must exercise ordinary care even in “Paradise” it necessarily follows that the judgment of the trial court must be reversed and that judgment be and same is here rendered that plaintiffs take nothing.

Reversed and rendered.