author: BARROW, Justice,

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Johnnie A. JANAK, Appellee.
    No. 14163.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 20, 1963.
    Rehearing Denied Dec. 18, 1963.

      Groce & Hebdon, Charles L. Smith, San Antonio, for appellant.
    Putman & Putman, San Antonio, for ap-pellee.
   BARROW, Justice,

This suit was brought by Johnnie A. Jan-ak to recover workmen’s compensation benefits from Texas Employers’ Insurance Association, by reason of injuries sustained in an automobile collision on a public highway on October 22, 1959. The jury found that Janak was in the course of his employment for Field Drilling Company at the time of the collision and that his injuries resulted in permanent partial incapacity. Judgment was entered on this verdict and the Association has perfected this appeal.

The Association asserts that there is no evidence to support the jury finding that Janak was in the course of his employment, or, in the alternative, that the finding is so contrary to the overwhelming preponderance of the evidence as to be manifestly wrong and unjust. There is very little conflict in the evidence on this issue. It is our duty however to view the evidence and the reasonable inferences therefrom most favorably in support of the jury’s findings. Jecker v. Western Alliance Ins. Co., Tex., 369 S.W.2d 776.

Janak was employed by the Field Drilling Company about two months before the collision, to work as a roughneck on a drilling rig which was located near Coy City in Karnes County. Janak lived in Yorktown, which was about fifty miles from the rig location. Transportation was not furnished by his employer, and Janak went to and from work each day as a member of a car pool. The other four members of his shift, including T. J. Nesloney, the driller in charge of this shift, were members of this car pool. Each member of the shift drove his own car every fifth day and paid the necessary car expenses for that day. The employees were paid wages only for the time spent at the rig and were not reimbursed in any way for their transportation expense.

Drinking water was needed for the employees, and since none was available at the drilling site it was customary for Janak’s crew to fill cans, furnished by his employer, with water and ice each morning on their way to the rig. The employer acquiesced in this custom. The ice and water was obtained at an ice house in Runge, which was on the direct route from Yorktown to Coy City. It is customary with most drilling companies to pay for the ice used in the drinking water. Field Drilling Company did not do so, but there is evidence that Nesloney’s immediate supervisor advised that he would give overtime compensation during the “rigging up” time to repay the employees for purchasing the ice. Nes-loney paid for the ice the first week and thereafter the employee who furnished transportation for the car pool on that particular day would pay for the ice. No one was given overtime by Field Drilling Company, as the accident occurred before the “rigging up” time.

Two days before the collision the rig was moved to a drilling site near Ecleto, which is located between Runge and Gillett. The. most direct route from Yorktown to the drilling site would be through Gillett. On October 22, 1959, Pete Draplia drove his car for the car pool and Janak was a passenger in the car at the time of the collision. They were not sure that an ice house was open in Gillett, so they went by the ice house in Runge, which was about six to eight miles further to the drilling site than through Gillett. After securing the ice and water, Draplia’s car was proceeding from Runge to Ecleto when the collision occurred, which resulted in the injuries to Janak. They had not reached the intersection with the route from Yorktown via Gillett at the time of the collision.

Since Janak was injured on a public highway enroute to his place of employment, the question of whether he was in the course of his employment is controlled by Sec. 1 and Sec. lb of Art. 8309, Vernon’s Ann.Civ.Stats. In 1957 the Legislature added Sec. lb to the definition of the term “injury sustained in the course of employment,” by providing as follows:

“Sec. lb. Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

The Supreme Court has recognized that the Legislature in enacting Sec. lb did not enlarge the definition of course of employment found in Sec. 1 of Art. 8309, but rather circumscribed the probative effect that might be given to the means of transportation or the purpose of the journey. Jecker v. Western Alliance Ins. Co., supra; Texas General Indemnity Co. v. Bottom, Tex., 365 S.W.2d 350. It is still necessary for the claimant to show that the injury is of the kind and character that had to do with and originated in the work, business, trade or profession of his employer and was received while he was engaged in or about the furtherance of the affairs or business of the employer. Texas General Indemnity Co. v. Bottom, supra; Maryland Casualty Co. v. Thomas, Tex.Civ.App., 367 S.W.2d 407, wr. ref.

It is undisputed that the transportation involved herein was not furnished as a part of his contract of employment; was not paid for by his employer, and was not under the control of his employer. Janak asserts that in deviating off the direct route to his place of employment in order to secure the ice and water needed on the job, he was on a special mission for his employer.

The general rule, recognized by the above authorities, is that an injury occurring in the use of public streets or public highways in going to and returning from the place of employment is non-compensa-ble. One of the recognized exceptions to this rule is that an employee is in the course of his employment when he undertakes a special mission under the direction of his employer or performs a service in furtherance of his employer’s business with the express or implied approval of his employer. Jecker v. Western Alliance Ins. Co., supra; American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370; Whisenant v. Fidelity & Cas. Co. of N. Y., Tex.Civ.App., 354 S.W.2d 683. This exception does not apply to Janak at the time of the accident, as he was only a passenger in the automobile operated by Draplia.

An almost identical factual situation was presented in Travelers Insurance Co. v. Forson, 268 S.W.2d 219, and the Fort Worth Court of Civil Appeals held that if the transportation of the water to the drilling site could be termed a special mission for the employer, it was a special mission performed by the driver of the car bringing the water and not a special mission performed by a passenger member of the car pool. The Court said:

“The employer certainly could not be said to have any purpose to be served in the transportation of the deceased (Forson), and since his presence was not required and his services not reasonably necessary to fill the can with water and place it in the automobile trunk, there was no causal connection between any work which might be said to have been performed at Henrietta prior to the time of the trip to the well site and the fatal injuries which were sustained. * * * The risk or hazard to which the deceased was exposed and which did result in his death was that of the public highway over which he traveled on his way to work and was one to which all members of the public were subject.”

The Court held that this risk or hazard was not contemplated by Forson or his employer in the contract of employment of Forson. Smith v. Texas Employers’ Ins. Ass’n., 129 Tex. 573, 105 S.W.2d 192.

Janak urges that the rule in the Forson case has no application in that Forson’s accident occurred on the direct route to the drilling site, and Janak was injured on a deviation from the direct route. We can see no basis for such a distinction. Janalds sole purpose in being in the car at this time was incident to his transportation to work as a member of Draplia’s car pool. The deviation was an incident of such transportation and not by reason of any mission that Janak was performing for his employer. Travelers Ins. Co. v. Forson, supra; Bozant v. Federal Underwriters Exchange, Tex.Civ.App., 159 S.W.2d 973.

It is therefore our opinion that Janak was not in the course of his employment at the time of the collision, and the trial court erroneously overruled the Association’s motion for instructed verdict and motion for judgment non obstante veredicto. The judgment of the trial court is reversed and judgment here rendered that Janak take-nothing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Howard G. LARGE et al., Relators, v. Hon. Penn J. JACKSON, District Judge, et al., Respondents.
    No. 16541.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 10, 1964.
    William V. Browning, Wichita Falls, for relators, Kenneth Falnes and wife, Barbara Ann Falnes.
    Glynn R. Purtle, Asst. County Atty., of Wichita County, Wichita Falls, for relators, Howard G. Large and Madge Whitney.
    James E. Ferguson, Cleburne, for ap-pellee.
   PER CURIAM.

This is an original proceeding for writ of prohibition.

Pending in this court at the time petitioners filed the original proceeding was our cause No. 16511, styled Mack Henry Brooks et ux. v. Wichita County, Texas. Said cause exists on our docket perforce an appeal taken from a decree of dependency as to two minor children, grandchildren of Brooks and his wife, entered by the Juvenile Court of Wichita County, Texas, under date of July 19, 1963.

It appears that subsequent to said date Brooks and his wife, as plaintiffs, filed a suit for custody of their grandchildren in the District Court of Johnson County, Texas. This cause was docketed as No. 5789-A in said court. A judgment which purported to award custody of the two children to Brooks and his wife, as against Kenneth Falnes and his wife, was rendered in said cause on November 29, 1963.

Obviously certain interested parties in Wichita County became aware of the Johnson County decree shortly after the date of its entry. The court in Wichita County entered what it termed a “modified judgment” on December 3, 1963, by which it ordered that the care, custody and control of the two minor children (which it had on July 19, 1963, adjudicated as “dependent” under Texas’ dependency statutes, Vernon’s Ann.T.S., Art. 2330 et seq., “Dependent or neglected child”) be removed from Falnes and his wife and placed with the Wichita County Probation Department, with said Department authorized to place the children with the Children’s Aid Society of West Texas pending the outcome of the appeal taken from the court’s dependency judgment (pending on the docket of this Court as Cause No. 16511). The original decree had placed custody of the children in the Wichita County Probation Department, with authority granted the Department to place the children in a foster home for purposes of adoption. Placement had been made with Falnes and his wife.

Upon the authority of the judgment of the Johnson County District Court the grandparents went to Wichita County and sought to obtain physical possession of their grandchildren. They were unable to accomplish their purpose, whereupon they returned to Johnson County. In Cause No. 5805-A, styled Mack Brooks et ux. v. Kenneth Falnes et ux., Madge Whitney and Howard G. Large, based upon judgment in cause No. 5789-A, they sought writs of habeas corpus commanding the defendants’ personal appearance before the court, bringing their grandchildren.

In their petition therefor the grandparents represented to the court that Falnes and his wife, after learning of the Johnson County judgment “ * * * disobeyed said Court order and delivered said children to Howard G. Large, probation officer, Wichita County, Texas and to Madge Whitney, Operator of the Fowler Home where said children, * * * are being illegally restrained and confined.” The District Judge of said court, Honorable Penn J. Jackson, entered an order for service upon Falnes and his wife, Large, and Mrs. Whitney, directing that they appear in person before the Johnson County Court on December 12, 1963, at 9:00 a. m., bringing the Brooks’ grandchildren.

On December 12, 1963, the parties from Wichita County appeared before Judge Jackson, but they did not bring the children. They filed various pleadings (including pleas of privilege to have the habeas corpus proceeding transferred to Wichita County) by which the court was informed that there had been an appeal perfected from the judgment in the dependency proceeding in Wichita County. The scheduled hearing was postponed to a later date, but before time therefor arrived, warrants of arrest were issued by Judge Jackson to be served upon Mr. Large and Mrs. Whitney. The officers attempting to arrest them were restrained from executing these warrants by writs of a district court of Wichita County.

At this stage of the proceedings the parties in Wichita County brought their petition for writ of prohibition to this court. We granted leave to file the same and, through agreement of all parties, all proceedings were deferred and delayed pending our hearing and decision upon the law applicable to the situation.

When a proper court, vested with jurisdiction of the parties and subject matter, assumes to act in the premises, it cannot be ousted by a proceeding involving the same cause of action subsequently instituted in another court of concurrent jurisdiction. Furthermore, when a child has been adjudged to be dependent and neglected under the provisions of Art. 2330, et seq., a writ of habeas corpus or other proceeding involving the custody of the same child will not lie in any other court than that which' made the adjudication although such other court may be clothed with jurisdiction of such cases. Cook v. Gregg, 1949 (Tex.Civ.App., Amarillo), 226 S.W.2d 146, error refused. At least such is the state of the law so long as there, has been no subsequent, final decree, which divests the court of its. custodial office under the character of jurisdiction incident to the dependency decree,— ■ as by a final, decree of adoption.. It necessarily follows that the custody decree in the Johnson County,case was void for want of jurisdiction unless the antecedent proceedings in Wichita County were void.

Though the aforesaid legal situation is to be borne in mind, it is not necessarily deter-,. minative of the propriety of our action to grant a writ of prohibition in the case under consideration. What is necessary and -essential involves two questions :

First is the determination of whether the judgment of the court in Wichita County, which decreed the children to be “dependent”, was void. Only in the event that such decree was not void would we proceed -to other matters for consideration, for a court of civil appeals would not issue a writ to prohibit prosecution of a suit because such suit might interfere with the execution of a judgment which was void or with the prosecution of void proceedings. “56” Petroleum Corporation v. Rodden, 1940 (Tex.Civ.App., Texarkana), 139 S.W.2d 218.

We have examined the face of the record in the case' pending on appeal from Wichita County, being our Cause No. 16511, and have ascertained that the judgment is not void. We have not examined it further as to form any conclusion as to whether the judgment might be voidable, or whether it might be reversible for some other reason.

Second, we are required to examine the petition for writ of prohibition in a test of whether issuance of such a writ, and other writs ancillary thereto, would be necessary to-.enforce our jurisdiction in and over the case on appeal from Wichita County. If the proceedings in Johnson County could not interfere and were not intended to threaten any interference with our jurisdiction, such a writ would not be in order because a necessity therefor would not exist. ' If the contrary were true, however, we would be authorized and even required to issue the writs under the language and holdings of’V.A.T.S., Art. 1823, “Writs of' mandamus, etc.”

Warrants of árrest have been issued out of the District Court of Johnson County because of petitioners’ failure to deliver the Brooks’ grandchildren, under the purported authority of the judgment entered in Cause No. 5789-A on the docket of said court, the custody suit heretofore referred to, and under Cause No. 5805-A, the petition for writ of habeas corpus. Restraint of such action and any other action (the objective of which would be to remove the children from the Juvenile Court of Wichita County, or agents or agencies acting as sub-custodians for said court under its primary custodianship)'is necessary if We are to preserve the subject matter of the case on appeal.

It is obvious that in the event proper disposition of the merits of the appeal be one of affirmance of the judgment of dependency, such a holding would be pointless and futile, if, under the authority of action by any other court, the children were removed to'a place without the jurisdiction of either this court or the Juvenile Court of Wichita County. Therefore, restraint appropriate to prevent such is in order.

The warrants of arrest heretofore mentioned have been returned, unexecuted, to the court in Johnson County. It is not shown that any improper- action by Mack Henry Brooks and his wife is threatened aside from or other than such which would be under color of authority of the District Court of Johnson County. We are satisfied that the Honorable Penn J. Jackson, Judge of said court, will honor.this opinion and refrain from any further action which would be contrary to expressions herein. Writ of prohibition will issue only if he does not so refrain. Writs of restraint appropriate in respect to Mr. and Mrs. Brooks will issue only in the event a writ of prohibition should issue, or in the event they should seek to prosecute a suit involving custody of their grandchildren in any court other than this court, the Supreme Court, or Juvenile Court of Wichita County, Texas, so long as the custodial jurisdiction of the latter court shall obtain.


author: STEPHENSON, Justice.

text:
    DALLAS SAFETY CONVOY CO., Appellant, v. Oldfield GREGORY, Appellee.
    No. 6649.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 9, 1964.
    Rehearing Denied Feb. 5, 1964.
    George T. Camp, Beaumont, for appellant.
    Barber & Seale, Jasper, for appellee.
   STEPHENSON, Justice.

This is a suit for damages arising out of a collision between an automobile and a triick. Based upon answers of a jury to the special issues, judgment was rendered for plaintiff. The parties will be referred to here as they were in the trial court.

Although several issues were submitted to them, the jury found the driver of defendant’s truck was negligent only in respect to not keeping a proper lookout, and that this was a proximate cause of the collision. The jury found the plaintiff to be damaged to the extent of $25,000.00. The jury answered all of the defensive issues, ‘favorably to the plaintiff.

The collision occurred on a dark and hazy night when the driver of defendant’s truck backed onto the highway and was struck by the automobile driven by plaintiff. The jury found: that backing the truck onto the highway was not negligent; that defendant’s driver did not fail to have the truck under proper control; that defendant’s truck driver did not fail to have lights operating on the rear and sides of the trailer; that defendant’s driver did not fail to promptly drive the truck off of the highway . after it had been backed on the same; that the stopping of the truck’s forward motion prior to the collision was not negligence; and under the series of issues on discovered peril, that the defendant’s truck driver could not have avoided the collision by the exercise of ordinary care in the use of all the means at his command, after discovery and realization. The jury found favorably to the plaintiff upon the issues in reference to his action, which included proper lookout, excessive speed, and proper control.

Defendant’s first point is that there is no evidence to support the findings of the jury as to failure of its driver to keep a proper lookout and the related proximate cause issue. This is a question of law to be determined by considering only the evidence favorable to such findings, and disregarding all other.

Plaintiff testified he had driven his automobile in a westerly direction on Highway 105, from his home to the place of the collision at a speed between 40 and 50 miles per hour. The distance was one and a half miles and the highway was straight. The driver of defendant’s truck testified as follows: He had pulled into a motel situated on the south side of the highway to spend the night and a motel attendant asked him to move the truck to a different location for parking. He backed out onto the highway and had stopped before he saw plaintiff’s automobile. That the truck was stopped with the rear end pointed north and located about the north edge of the highway. It would take about 30 seconds to get the truck out of reverse gear into low gear and get it started forward. The truck would move one mile per hour in the starting gear, and 10 miles per hour in the next gear. He had driven the truck forward about 3 feet when the automobile reached a point 100 feet away. He stopped the truck when the automobile was about 60 feet away. The north lane of the highway had not been cleared and the automobile ran into the side of the trailer.

The Supreme Court of Texas made the following statement in reference to “proper lookout” in Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273:

“In a case of this character, standards of ordinary care such as the direction and extent of the observation which Mrs. Ricketts should have made at any particular time cannot be fixed with any degree of certainty but must be left in large measure to the trier of fact. It is’ well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. See English v. Miller, Tex.Civ.App., 43 S.W.2d 642 (wr. ref.) ; Henry v. Publix Theatres Corp., Tex.Civ.App., 25 S.W.2d 695 (wr. ref.). The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded under the provisions of Rule 301 [T.R.C.P.], therefore, if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same.”

Under all of the testimony the jury could have concluded that the driver of defendant’s truck should have observed the plaintiff’s automobile at an earlier time so that he could either have stopped the truck before blocking the north lane, or upon an earlier discovery, started the truck forward sooner and cleared the north lane of traffic. The jury may have decided that a reasonably prudent person, under the same circumstances, that is, knowing he was backing a truck and trailer out onto a highway, and knowing the amount of time it would require to change the gears and move the truck from the highway, would have kept a better lookout for approaching automobiles. Early observance of an approaching vehicle should have given the truck driver ample time to move the truck out of the north lane of traffic. The point is overruled.

In considering the sufficiency of the testimony to support the issues in reference to “proper lookout”, we considered the record as a whole. Even though the driver of defendant’s truck testified he looked in both directions before backing the truck onto the highway, and even though there was no other evidence on the point, the jury was not bound to accept such testimony. Also, the truck driver’s testimony was to the effect that he saw the lights on plaintiff’s automobile as soon as plaintiff turned onto the highway, but the jury was not forced to accept that statement as true. The jury could take into consideration the fact that plaintiff’s automobile came upon the highway one and a half miles from the' point of the collision, and that there was nothing to prevent the automobile lights from being seen at that distance, if the truck driver had been looking. The testimony of plaintiff as to the speed of his automobile and the resulting length of time it would require the automobile to arrive at the point of contact with the truck, were also inconsistent with the version of “lookout” testified to by the truck driver. We cannot say the findings of the jury were so against the great weight and preponderance of the evidence as to be manifestly unjust and unfair. The point is overruled.

The remaining three points raised by defendant involved jury misconduct. It is contended that one of the jurors made a statement to the effect that the final decision as to the amount of damages awarded to the plaintiff would be decided by the trial judge, and that such juror had sat in a case in which the jury had set the amount in excess of $30,000.00 and the court rendered judgment for something less than $5,000.00. It is also contended the foreman of the jury instructed the other members of the jury they could not consider the length of the skid marks made by plaintiff’s automobile and other related matters in arriving at an answer to the special issues as to whether plaintiff was driving at an excessive rate of speed. The third contention under jury misconduct is that the foreman of the jury instructed the other jurors that they could not consider the fact that defendant’s truck was sitting in the highway on the issue inquiring whether plaintiff was keeping a proper lookout, because the truck was not mentioned in that special issue. The trial judge overruled the motion for new trial without making any specific findings upon any of these matters.

The juror accused of making the statement in reference to the damages, denied making such statement. He testified at the hearing on the motion for new trial that he had said that the issue should be answered the same regardless of how the other issues were answered and related an experience in which the damage issue had been answered but the plaintiff got nothing because of the way the other issues were answered.

The foreman of the jury denied making a statement to the jury instructing them that they could not consider the skid marks and other related matters in connection with the issue on excessive speed. His view of the matter was that he told one of the members of the jury, an engineer, that he could not calculate the speed of plaintiff’s car from the skid marks and try to influence the other jurors with such information.

The foreman of the jury was not asked directly on the hearing of the motion for new trial whether he told the other members of the jury that they could not consider the fact that the truck was across the road in deliberating upon the “proper lookout issues”. However, he did make this statement:

“Q. Did you purport to tell the jury that as a matter of law that they could not consider various things in arriving at these questions ?
“A. I did not in no way; I’m no lawyer; I don’t know what the law is.”

Other jurors testified that they did not recall the foreman making any such statement, and that they were not in any way prevented from considering anything that was in evidence in the case.

It is ápparent from a study of the testimony given on the motion for new trial that there was a dispute as to whether each of the statements were made. The trial court, in failing to make a finding of misconduct, is presumed to have found that there was none. The law on this point is well settled as follows:

“If on motion for new trial for misconduct of the jury, the evidence is conflicting touching the question as to whether the alleged misconduct occurred, that part of the evidence which supports the judgment of the court will be presumed to have been found by the court m favor of the judgment.” Rosamond v. Keyes, Tex.Civ.App., 255 S.W.2d 399.

The points are overruled.

Judgment affirmed.


author: COLEMAN, Justice.

text:
    O. P. MURPHY, d/b/a Murphy Tomato Company, Appellant, v. C. L. McLAUGHLIN, Appellee.
    No. 14281.
    Court of Civil Appeals of Texas. Houston.
    Jan. 16, 1964.
    Rebearing Denied Feb. 6, 1964.

      Allie L. Peyton, Edward R. Baird, Houston, for appellant.
    Frederick W. Robinson, Houston, for ap-pellee.
   COLEMAN, Justice.

This is a suit in the nature of an action for an accounting growing out of a joint venture in the purchase and sale of tomatoes.

C. L. McLaughlin, plaintiff in the trial court, pursuant to the agreement between the parties, purchased 132,358 pounds of tomatoes from farmers in California and shipped them to O. P. Murphy, defendant. McLaughlin expended $11,682.80 of his own funds and $6,000.00 furnished by Murphy in making the purchases. The tomatoes were received by Murphy in apparent good condition. Certain other expense was incurred in shipping and processing the tomatoes. It was the agreement of the parties that the profit, if any, realized from the venture would be shared equally and that if the venture resulted in a loss, each party would be responsible for one-half of the loss.

Appellant was engaged in the business of processing tomatoes and selling them at wholesale. He had a plant equipped with a refrigerated room where the tomatoes were ripened at controlled temperatures. He had employees experienced in grading and packaging tomatoes, and machinery to assist them in this work.

After the tomatoes were delivered to appellant he placed them in their original containers in the ripening room together with other tomatoes which he had purchased or which' had been consigned to him for sale. These tomatoes were examined periodically by appellant or his employees, and when it appeared that a box had reached a proper degree of ripeness, it would be processed. The tomatoes would be removed from the container and placed on a moving belt where they would be washed by water spray before being graded. Appellant’s employees would throw rotten tomatoes in a barrel for disposal. The suitably ripe tomatoes would be packaged for sale and the green ones would be placed in a container for further ripening.

Appellant testified that of the 132,358 pounds of tomatoes received only 48,630 pounds were sold and that of the remainder, 77,350 pounds were “dumped”, that is, given to F. Burgs who regularly collected refuse and garbage for use as hog feed, and 6,378 pounds disintegrated during the washing process and were washed down the drain. F. Burgs died before the trial, hut receipts bearing his signature were introduced into evidence by appellee. Appellant testified that he received $8,623.70 for the tomatoes he was able to sell. Appellant states in his brief that he paid $4,446.19 for freight and packing costs and since this statement is not denied, it can be accepted as true. Before the suit was filed appellant transferred to appellee an automobile, a boat, a tire and $25.00 in cash in a partial settlement of accounts. A check for $306.95 was given to appellee, but he refused to cash it.

Appellant contends that he was entitled to an instructed verdict because there was no evidence that any of the tomatoes disposed of, other than the 48,630 pounds sold, had any value, and because there was no evidence that the venture resulted in a profit.

It is undisputed that the parties were engaged in a joint venture, and, therefore, occupied a fiduciary relationship toward each other. Thompson v. Duncan, Tex.Com.App., 44 S.W.2d 904. The sales of the good tomatoes, and the disposition of the bad tomatoes, were made by appellant and the books and records were under the control of appellant. In answer to appellee’s petition, appellant filed an answer containing an accounting. Appellee introduced evidence sufficient to challenge the accuracy of the account and to place in question the’ adequacy of the books and records maintained by appellant.

The case was tried to a jury and in answer to special issues submitted to it, the jury found that appellant failed to account for tomatoes, which he had received for the account of the joint venture, having a fair market value of $13,800.00. The trial court entered judgment based on the jury verdict. Appellant did not request the trial court to submit other or additional issues.

The burden of proving the correctness of the account contained in his answer rested on appellant. Where issues of fact were raised by the evidence as to the accuracy of the amounts of the tomatoes disposed of as garbage by dumping, it was appellant’s burden to secure jury findings sustaining his position. Thamert v. Carter, 72 Idaho 515, 245 P.2d 145; 1 Am.Jur.2d, Accounts and Accounting, § 62; 1 C.J.S. Accounting § 39.

Appellee introduced into evidence certain receipts, which appellant testified were receipts given to him for the unsalable tomatoes disposed of by him. The receipts were ambiguous and required parol explanation. Other evidence was introduced by reason of which the accuracy and trustworthiness of the documentary evidence become questionable. Under such circumstances appellee was not bound by the documentary evidence. Trice Production Co. v. Dutton Drilling Co., Tex.Civ.App., 333 S.W.2d 607, ref., n.r.e.

Appellant admitted that he received the tomatoes in four loads, as follows: (1) January 12, 1958, 29,745 lbs.; (2) January 17, 1958, 41,778 lbs.; (3) January 18, 1958, 30,297 lbs.; (4) January 20, 1958, 30,538 lbs. He testified that tomatoes didn’t stay around much longer than thirty days, and that he sold 48,630 pounds of the tomatoes in question during the month of January, 1958. The finding of the jury that appellant failed to “account for” certain tomatoes of a certain value, must be held to include a finding that he sold tomatoes having that value, which he did not include in the account found in his answer, and that he did not pay appellee his share of the proceeds. The words “account for”, as used in the issue, also include the meaning “pay for.” Texas Real Estate Commission v. Bentley, Tex.Civ.App., 253 S.W.2d 325. .Such finding is supported by the record in this case since under the evidence none of ■.the tomatoes could reasonably have been in .appellant’s possession at the time the account was filed and there is no intimation •that any of the tomatoes were disposed of other than by sale, being washed down the ■drain, or by “dumping.” The volume of •tomatoes reported as having been washed ■down the drain was small, and was shown •to be an estimate. The reliability of this item, as well as of the volume reported as “dumped”, depended on appellant’s testimony that there was excessive rotting, which was a controverted issue of fact. While there is no direct evidence of unreported sales, inferences that additional tomatoes were sold might reasonably be drawn from the evidence.

There was ample evidence of the fair market value of tomatoes at the time these tomatoes were in appellant’s possession. The evidence is sufficient to support the answers made by the jury to the issues submitted.

Appellant’s final point is that the judgment rendered in this cause cannot be supported on any theory of law. We find no merit in this point. While appellee did not specifically pray for an accounting, the case was tried on this theory and no point ■of error, or argument, has been urged in •this Court complaining of the pleading.

The theory on which the judgment in this case was rendered is well stated in 1 Am. Jur.' 2d, Accounts and Accounting, § 63, pp. 437-438, as follows: “Where an action for an accounting is brought in a court of ■general equitable jurisdiction, the court has a duty, upon finding that an accounting is proper, to conduct the accounting, to try all the issues, administer full relief to the parties, and grant a judgment for the balance found due * * *

The trial court properly placed the burden on appellant of proving the accuracy of his accounting for the assets belonging to the joint venture.

The judgment of the trial court is affirmed.


text:
    CITY OF ATHENS, Texas, et al., Appellants and Cross-Appellees, v. GULF STATES TELEPHONE COMPANY, Appellee and Cross-Appellant.
    No. 30.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 16, 1964.

      G. F. Smith, Smith, Mcllheran & Jen-kines, Weslaco, John W. Key, Jr., Life, Bolding & Key, Athens, for appellants.
    Richard B. Mayor, Butler, Binion, Rice & Cook, Houston, William H. Kugle, Jr., Athens, for appellee.
   PER CURIAM.

Gulf States Telephone Company filed suit in the District Court of Henderson County against the City of Athens, its Mayor and its Commissioners seeking to enjoin the enforcement of two city ordinances fixing the rates for the Telephone Company to charge for its local telephone service in said city on the alleged ground that said rates as fixed by said ordinances were confiscatory and in violation of both State and Federal Constitutions.

The cause came on for hearing before the Court without a jury on the company’s application for a permanent injunction; and after a full hearing, the Court entered its judgment as follows:

“It appearing to the Court that the Ordinance of the City of Athens, Texas, passed on September 8, 1961, establishes and prescribes a schedule of maximum rates and charges chargeable by Plaintiff for exchange telephone service in the City of Athens, Texas and that the ordinance of the City of Athens, Texas passed on July 30, 1962 prohibits Plaintiff from setting rates and charges in excess of those prescribed by said ’ordinance of September 8, 1961; and it appearing to the Court that such schedule of maximum rates and charges prescribed by said ordinance of September 8, 1961 do not permit Plaintiff to earn a fair return upon the fair value of its property used and useful in the rendition of such service, and it further appearing to the Court that Plaintiff had, prior to filing its suit, exhausted its administrative remedy, and has no adequate remedy at law; and
“The Court having concluded that (1) said ordinance of September 8, 1961 and said ordinance of July 30, 1962, of the City of Athens, Texas deprive the Plaintiff of its property without due process of law and are violative of the Plaintiff’s rights under Amendment Fourteen of the Constitution of the United States and under Section 13, 17 and 19 of Article I of the Constitution of the State of Texas [Vernon’s Ann. St.], and (2) that said ordinance of September 8, 1961 and said ordinance of July 30, 1962 are violative of Plaintiff’s rights under the laws and statutes of Texas, including Article 1124 of the Texas Revised Civil Statutes and (3) that Plaintiff is entitled to the permanent injunctive relief prayed for in its verified petition;
I.
“It is accordingly ORDERED, ADJUDGED and DECREED by the Court that the Defendants, the City of Athens, Texas, D. D. Williams, Mack Adams, N. D. Geddie, Jr., Donald Murphree, Wilma Waddell, Joe Browning and Donald Foster, and their respective successors, officials, officers, agents, representatives, employees and attorneys, be, and each of them hereby is, perpetually enjoined:
“(a) from enforcing or attempting to enforce by suit or otherwise the charging, collecting or observance by Plaintiff of those rates and charges for telephone service prescribed by and set forth in the ordinance enacted by the City Council of the City of Athens, Texas on September 8, 1961, or as prescribed in any other ordinance or resolution heretofore enacted or adopted or presently effective in the City of Athens, Texas or from enforcing or attempting to enforce the provisions of the ordinance enacted by the City Council of the City of Athens, Texas on July 30, 1962;
“(b) from assessing or seeking to enforce against the Plaintiff, its officers, agents or employees, or any of them, any fine or penalty or criminal charge on account of the failure of the Plaintiff to charge and collect only such rates and charges for telephone service as were prescribed by said ordinance of September 8, 1961, .or any other ordinance or resolution heretofore enacted or adopted or presently effective in the City of Athens, Texas; and
“(c) from interfering in any way with the Plaintiff in promulgating, charging and collecting fair and reasonable rates and charges for local exchange telephone service in the City of Athens, Texas until such time as Defendants or their successors shall validly prescribe fair and reasonable rates and charges therefor.
“All costs of court are taxed against Defendants, for which let execution issue.
II.
“And Plaintiff having duly and timely filed its motion for judgment, requesting therein, as further relief, that the Court grant Plaintiff an auxiliary or ancillary temporary injunction pending the outcome of any appeal; and Defendants having called the attention of the Court to the provisions of Article 1174, Texas Revised Civil Statutes, contending that under and by virtue of such statute no supersedeas bond is required of the City of Athens to suspend the efficacy of such judgment pending the outcome of appeal, the Court finds and concludes that (1) the Defendants, pursuant to said Article 1174, may suspend the efficacy of the judgment of this Court pending the outcome of any appeal without filing proper supersedeas bond and (2) that said Article 1174 does not violate Amendment XIV of the Constitution of the United States or Sections 13, 17 and 19, of Article I of the Constitution of the State of Texas; and (3) that such temporary injunctive relief prayed for in such motion should issue but for the reason that the relief would have the effect of denying to the Defendant City its right to supersedeas without supersedeas bond as provided for in said Article 1174.
“It is further ORDERED, ADJUDGED and DECREED by the Court that the efficacy of the permanent in-junctive relief granted to Plaintiff herein shall be suspended pending the outcome of any appeal, and Defendants need not file any supersedeas, bond, and that the auxiliary or ancillary temporary injunction pending the outcome of any appeal be denied for the reason aforesaid.”

This judgment has been appealed to this Court by the City of Athens under the provisions of Article 1174, whereby the City may supersede the judgment without the filing of a supersedeas bond..

It is without dispute that the City did not apply to the Court to have it set the amount of supersedeas bond as required by the Rules of Civil Procedure No. 364, section (e). Instead, the Court suspended the final judgment of the Court pending the outcome of the appeal.

This being an appeal from a final judgment granting a permanent injunction, this Court has some doubt as to the power of the Trial Court to suspend the final judgment during appeal.

The City’s right to appeal without filing a supersedeas bond under Article 1174 has been upheld by a number of our Courts. City of Athens v. Evans, Tex.Com.App., 63 S.W.2d 379; City of Wink v. R. B. George Mach. Co., 122 Tex. 613, 63 S.W.2d 849.

The appeal could have been accomplished by an application to have the amount of bond fixed and giving the necessary notice of appeal.

The Supreme Court has held, as follows:

“The Rules of Civil Procedure respecting supersedeas bonds do not authorize superseding or staying of final judgment, but prescribe method of suspending execution of judgment before it becomes final and while appeal is pending. Rules of Civil Procedure, rules 364, 368, 385.” Renger v. Jeffrey, 143 Tex. 73, 182 S.W.2d 701.

The real office of supersedeas bond is to furnish security to an appellee additional to an appellant’s personal responsibility. Universal Automobile Insurance Co. v. Culberson, et al., Tex.Civ.App., 51 S.W.2d 1071.

For the purpose of this opinion, we shall treat the appeal as before this Court on proper supersedeas bond.

We have an application before this Court by the Telephone Company, Appellee, for a writ of temporary injunction, seeking the right to place their rates into effect until the final outcome of this litigation upon their execution of a bond with surety, conditioned that the appellee will repay to the patrons any excess the company might collect over the amount it might be permitted to collect under the judgment of the Court. This application is based on the theory that the rates now being charged are confiscatory as found by the Trial Court, and it will have to abide by these confiscatory rates during the appeal and it will have no way to recover its loss if the judgment of the Trial Court is ultimately affirmed, unless this Court grants the relief prayed for, since rates are made for the future and there is no way to make them retroactive.

In other words, the appellee seeks from this Court the identical relief that has already been held to be in the power of the Trial Court to grant when a rate application is filed and pending on a temporary injunction.

“A temporary injunction will issue against rate-making body when it appears that there is a reasonable probability that the utility will succeed on final hearing, that the loss to utility resulting from refusal to grant temporary injunction will be irreparable, and that customers can be adequately protected by bond.” City of Baytown, et al v. General Tel. Co. of the Southwest, Tex.Civ.App., 256 S.W.2d 187.

It would seem to be settled that this Court has power to issue writ of injunction to preserve the status quo of parties or to preserve corpus of subject matter of litigation pending appeal. Bird, et al v. Alexander, et al, Tex.Civ.App., 288 S.W. 606; Leonard v. Small, Tex.Civ.App., 28 S.W.2d 826; Antner, et al v. State, Tex.Civ.App., 114 S.W.2d 640.

The Telephone Company confesses in its brief that the City will not be liable under the Laws of Texas for the loss to it if the company is forced to provide telephone service under the confiscatory rates during this appeal. This being true, the Telephone Company is suffering a loss without a remedy and this should not be permitted in a court of equity. City of Baytown, et al v. General Telephone Co. of the Southwest, Tex.Civ.App., 256 S.W.2d 187.

Under these circumstances, this Court will issue its temporary injunction restraining the City and its officers from enforcing the present rates authorized by the two ordinances involved upon the company filing a bond with the Clerk of the Trial Court in the sum of $100,000.00, condition the same as the one now on file in the Trial Court as reflected in the transcript on pages 58 and 59.


author: WERLEIN, Justice.

text:
    John William STEVENSON, Appellant, v. Carolyn Jane STEVENSON, Appellee.
    No. 14280.
    Court of Civil Appeals of Texas. Houston.
    Jan. 16, 1964.
    Minter & Graham, Sam S. Minter, Thomas J. Graham, Houston, for appellant.

      Bill Waltrip, Beaumont, George H. Vance, Houston, for appellee.
   WERLEIN, Justice.

Appellee, Carolyn Jane Stevenson, sued appellant for a divorce, for division of property, custody of their minor children, and child support. Appellant filed a cross-action in which he sued for divorce and custody of the children. Based upon the findings of the jury, the court granted appellant a divorce on his cross-action, decreed the custody of the children, Scott Allen Stevenson, a boy 7 years of age, and April Stevenson, a girl 4 years of age, to appellee, with visitation rights in appellant, and also entered judgment for a division of the community property and child support. Appellant has appealed only from that part of the judgment decreeing the custody of said children to appellee.

The gravamen of appellant’s complaint is that the court erred in striking all allegations from his cross-action concerning the temporary injunctions previously decreed by the court enjoining appellee and one Corydon Merriman Ashby, Jr. from in any way communicating with one another, and in striking from appellant’s pleadings any reference to violations of said injunctions and contempt proceedings, and in directing in limine that no reference be made during the trial of the case to said injunctions and contempt proceedings in connection therewith. Appellant also contends that the court committed reversible error in excluding evidence of the fact that appellee and her paramour Ashby had continued to associate together in violation of said injunctions and that Ashby had been tried, convicted and sentenced to jail for contempt of court because thereof. Appellant asserts that such evidence, if admitted, would have been of sufficient weight to have persuaded the jury to award the custody of the children to him rather than to appellee.

The evidence shows that on or about November 17, 1961 appellant was informed by appellee that she wanted a divorce; that on or about December 6, 1961 Ashby’s wife discovered that her husband and appellee were having an affair, and that on December 7, 1961, appellee informed appellant that she was in love with Ashby and wanted to marry him. From then on Ashby and appellee continued to go together quite frequently. The record contains much testimony relative to their association together. According to the testimony of appellant,, his little boy informed him that appellee and Ashby had taken him and his little sister to-the beach at Galveston where the boy had overheard his mother and Ashby talking about living with each other and that Ashby-had kissed appellee in the boy’s presence. While the evidence indicates that the association of appellee and Ashby was indiscreet and immoral and would likely result in breaking up two homes, both with children, there is no evidence of probative-force that Ashby and appellee engaged in-adulterous relations.

Although there is considerable evidence reflecting unfavorably upon the character of appellee, the jury awarded the custody of the children to her, probably because they were of tender age and she was their mother and would likely take proper care of them despite her love affair with Ashby. Then, too, there were several witnesses who testified that she took good care of the children. The jury may also have taken into consideration the fact that appellant was a man of rather violent temper and somewhat emotionally unstable, having twice contemplated suicide. They possibly considered that if the children were awarded to appellant, he would in all probability leave them with his mother, who had previously been in poor health. In any event, the jury found that the welfare of the children would be best served by placing them in the custody of appellee.

Although appellant has not assigned as error that the finding of the jury with respect to the children is against the great weight and preponderance of the evidence, we have read the entire record and have concluded that such finding is amply supported by evidence of probative force. The violation of the injunctions, while punishable in a contempt proceeding, did not involve moral turpitude on the part of appellee. It is our view, therefore, that the court did not err in granting the in limine order and in refusing to permit appellant to introduce in evidence the collateral matter of the injunctions and violations thereof. In any event, we are of the opinion that if there was error in such connection, it was not such as was calculated to cause and probably did cause the rendition of an improper verdict and judgment. Rule 434, Texas Rules of Civil Procedure. Evans v. Taylor, Tex.Civ.App. 1939, 128 S.W.2d 77; Bridges v. City of Richardson, 1962, 163 Tex. 292, 354 S.W.2d 366; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellant contends that the court erred in striking paragraph 12 from his cross-action. What has been said herein-above is applicable to the allegations in said paragraph setting out the breaking up of the marriage of appellant and appellee and appellee’s contemptuous ignoring of the law and the courts. The allegation that appellee has no real love for her children or anyone but only desires to please her own whim, is a conclusion on the part of appellant. There is no evidence that the children in question would be taught immorality. The allegation to such effect is also a mere conclusion. While there may be one or more allegations in said paragraph that should not have been stricken by the court, it cannot be said that any error in such connection was calculated to cause and probably did cause the rendition of an improper verdict and judgment, in light of other similar allegations in appellant’s cross-action which were not stricken, alleging cruel and immoral conduct on the part of appellee, the excessive use of alcohol, love for Ashby and illicit relations with him, the breaking up of two homes, the making of love in the presence of the children, thereby upsetting them, neglect of the children, leaving them with babysitters while appellee ran around with Ashby, cursing and the use of vile language. Appellant was not restrained from testifying fully as to all' such matters. The court excluded only evidence with respect to the injunctions and violations thereof and the contempt proceedings.

We have carefully considered appellant’s other Points and find nothing therein which would require reversal of the case. It is true that when appellee’s counsel was examining appellant, he asked appellant if he considered it wrong for appellee to converse with Ashby and also whether appellant thought it was right to have appellee followed by detectives to see if she was with another man. Appellant contends that but for the refusal of the court to vacate the in limine order, he could have answered that he did think it immoral for appellee to communicate with Ashby in view of the injunctions, and right to have his wife followed pending the divorce in order to determine whether the injunctions were being violated. The record shows that appellant made no objections to the introduction by appellee of evidence relative to appellant’s having had appellee followed. Moreover, the interrogation with respect to such matter occurred prior to the time ap-pellee’s motion was made to set aside the in limine order. After such motion was overruled, appellant objected to appellee’s question with respect to how much appellant paid private investigators. The court sustained such objection. We are of the opinion that the record does not show reversible error.

Judgment affirmed.


author: HUGHES, Justice.

text:
    CITY OF HOUSTON, Appellant, v. M. B. HENDRIX et ux., Appellees.
    No. 11135.
    Court of Civil Appeals of Texas. Austin.
    Jan. 8, 1964.
    Rehearing Denied Jan. 29, 1964.
    R. H. Burks, City Atty., Joseph G. Rollins, Senior Asst. City Atty., Houston, for appellant.
    E. P. Dee, Houston, for appellees.
   HUGHES, Justice.

This is a condemnation suit in which the only questions presented relate to the amount of damages awarded by the jury to appellees, the City of Houston, appellant contending that such award is excessive and that the jury finding is contrary to the overwhelming weight and preponderance of the evidence.

The property condemned was .72 of an acre on which was located four rent houses; The gross annual rent from these houses was $2,520.00, when all were rented.

Mrs. Mildred P. Hendrix testified for herself and her husband since he had a hearing impediment. She testified that she and her husband had been married to each other for 32 years; that they bought the subject property in 1940 for the purpose of improving it for rental purposes.

Mrs. Hendrix testified that the first of the four houses was built on the property in 1950; that it was a frame house having sheetrock and asbestos siding and cedar shakes with double walls and sheetrock; that it had four rooms, running water from a deep well on a portion of the property not condemned, bath and water heater. This house rented for $50.00 per month.

Mrs. Plendrix described the second house built on the property in 1952 or 1953 as having two bedrooms, a combined kitchen and living room; that it rested on cement blocks, had a composition roof, sheetrock inside with termite shields, natural finished woodwork, formica drainboard, water heater. This house had trees around it. This house also used water from the deep well mentioned above, and it rented for $50.00 per month.

The third house built on the property in 1956 or 1957 Mrs. Plendrix described as being the same as the second house except that it had asbestos siding with cedar shakes at the bottom, and it had a tile drainboard; it also had a carport, and had several trees around it.

The fourth house, built in 1960, was a larger house than the others; it had two bedrooms, a living and dining room, a kitchen and back porch. It had a tile bathroom, tile drainboard, built-in china closets, larger room closets than in the other houses. It also had a double garage. It rented for $60.00 per month.

Each of the four houses had a septic tank costing $500.00.

Without describing other improvements to the property made by appellees we list them and the cost attributable to each: gas lines $396.00, gas meters $185.00, three light poles $105.00, concrete pipe for culverts $500.00, clothes lines $60.00, trees $500.00, carpet grass $100.00.

Mrs. Hendrix testified that the houses were vacant very little, that the maintenance and other expenses were small, the taxes being only $12.00 per year until the property was annexed by the City of Houston.

The land allotted to each house was approximately 80' x 100' or 8000 square feet. No accurate measurement or allotment was made.

Mrs. Hendrix, without objection, testified to the market value of these houses and the land surrounding them as follows: 1st house, $7000.00; 2nd house, $7000.00; 3rd $7000.00 ; 4th house, $9000.00; a total of $30,000.00.

The evidence is clear that the cost of the septic tanks was included in these values. It is not clear that costs of other improvements listed were so included.

Appellees used only one other witness, Mr. Harold J. Sonsel, a professional real estate appraiser. He appraised the improvements at $16,455.00, extras at $1620.00 and the land at $2729.00, a total of $20,-804.00.

Appellant’s expert value witnesses were Mr. J. H. McCardle and Mr. Donald F. Douglas.

Mr. McCardle appraised the four houses at $16,050.00, the value of the land taken at $1,441.00, the value of extras at $680.00 or a total of $18,171.00.

Mr. McCardle based his land value on similar sales. The nearest comparable sale to the subject property was at least a mile distant and two years prior to its condemnation. It also appears that some of such sales were in an addition which adjoins the Houston International Airport, and yet were made at a higher price per acre than the value placed by the witness on this property which was a mile or two further from the Airport. We pause here to say that it is a matter of common knowledge that proximity to an airport, especially one of the dimensions of the Houston International Airport, depresses residential values. Even though appellee’s property was in a flight pattern of the Airport, its distance from the field would lessen the nuisance created by it.

Mr. Douglas appraised the four houses at $8375.00. He gave no opinion of the value of the land.

The market value of the land and improvements, as found by the jury, was $23,501.16. The Trial Court rendered judgment in this amount.

We have stated, in substance, all the evidence bearing on the issue of damages and on the points presented by appellant relating thereto. Viewing such evidence, and the record as a whole, it is our opinion that the verdict of the jury is not excessive and it is not so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust or wrong.

We believe we can do no better than to quote from the opinion of Associate Justice Gray in writing for this Court in State v. Haire, Tex.Civ.App., 334 S.W.2d 488, writ ref., n. r e, in order to express our view of the function of opinion evidence as to value:

“The market value of property necessarily is a matter of opinion. McCormick & Ray, Texas Law of Evidence, § 1422, Vol. 2, p. 256; 16 Tex. Jur. p. 584, § 255. The testimony of witnesses qualified to express their opinions as to the market value of property is admissible to aid the jury in determining such value, however, the jury is not bound by such testimony. Nass v. Nass, 149 Tex. 41, 228 S.W.2d 130. In Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943, 945, it is said:
“ ‘The opinion testimony of experts, although persuasive, under most circumstances is not conclusive. It is peculiarly within the province of the jury to weigh opinion evidence, taking into consideration the intelligence, learning, and experience of the witness and the degree of attention which he gave the matter. The judgments and inferences of experts or skilled witnesses, even when uncontroverted, are not necessarily conclusive on the jury or the trier of facts, unless the subject is one for experts or skilled witnesses alone where the jury or the court cannot properly be assumed to have, or be able to form, correct opinions of their own based upon the evidence as a whole and aided by their own experience and knowledge of the subject of inquiry.’
“In Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62, 64, it is said:
“ ‘Jurors in weighing the evidence before them have a right to use their common knowledge and experience in life. If the opinions of the experts as given in evidence do not comport with the' jurors’ ideas of sound logic, .the jurors have a right to say so. Otherwise there could not be a free discussion of the evidence in the jury room. * * * ’
“The answer of the jury to the issue is within the limits of the market value óf the property as testified to by the witnesses. It is true that no witness testified that such value was $53,000. However, this was not necessary in order for such answer to find support in the evidence. State v. Littlefield, Tex.Civ.App., 147 S.W.2d 270, er. dism. j. c. If the above rules were not applicable then opinion evidence would control rather than aid the jury in determining market value.”

There were three professional appraisers testifying in this case, one for appellees, two for appellant. The professional witness for appellees was about $10,000.00 under the value placed on the property by Mrs. Hendrix. He was about $3000.00 under the value found by the jury.

Appellant’s witness McCardle was about $5000.00 under the jury, and about $12,000.-00 under the value fixed by Mrs. Hendrix.

Appellant’s witness Douglas, who appraised only the improvements, was about $8000.00 under the value placed on them by appellees’ witness Sonsel and also about $8000.00 under the value placed on them by his co-witness, appellant’s expert McCardle.

In view of this disparity of opinion evidence, it seems to us that it was most appropriate for the jury to take a hand and apply their common sense and experience to a fair solution of this controversy. This we believe it did.

The judgment of the Trial Court is affirmed.

Affirmed.


author: PHILLIPS, Justice.

text:
    NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Appellant, v. J. Simms McDONALD, Appellee.
    No. 11132.
    Court of Civil Appeals of Texas. Austin.
    Jan. 8, 1964.
    Rehearing Denied Jan. 29,1964.
    Bryan & Patton, Julietta Jarvis, Houston, for appellant.
    Harris, Salyer & Taylor, Bay City, for appellee.
   PHILLIPS, Justice.

The plaintiff brought suit in the court below against the defendant Insurance Company on an insurance policy alleging damages to his beach house resulting from Hurricane Carla. The beach house had been located on the edge of Turtle Bay in Mata-gorda County and completely disappeared sometime during the hurricane.

The insurance policy involved in this suit provided coverage for windstorm, but excluded coverage for damage by water or a combination of water and wind. The plaintiff alleged the damage was due to windstorm and the defendant pleaded the exclusion, tidal wave, high water, or overflow, whether driven by wind or not.

The jury found that the damage was caused by the wind, was not caused by water, and was not caused by a combination of wind and water. Both defendant’s motion for an instructed verdict and motion for judgment notwithstanding the verdict were overruled by the court and judgment entered for the plaintiff for the face amount of the policy less certain deductible items and defendant has duly perfected an appeal to this Court.

The parties will be referred to in this opinion as they were designated in the court below.

The defendant’s first thirteen points of error jointly briefed complain among other things, that the court erred in overruling its motion for an instructed verdict and later in overruling its motion for judgment notwithstanding the verdict inasmuch as there was no evidence to support the jury’s verdict that the damage to plaintiff’s beach house was covered by the policy sued upon in that there was no evidence that such damage was caused by the wind, and no evidence that it was not caused by the water or the concurring action of wind with rising water and wind driven water.

We hold that the defendant’s contention is correct and reverse and render the case.

The high wind and water caused by Hurricane Carla occurred, for the most part, between the 9th and 11th of September, 1961. This was Saturday through Monday. It is undisputed that between these dates the wind rose to a velocity of between 150— 170 mph; that the area where the beach house in question once stood was inundated with water spreading some two or three miles inland, with waves that “looked like mountains” and water some fourteen to fifteen feet above normal. That no one knows how the beach house in question disappeared as no one saw it disappear.

The house was standing in good condition at 7:30 A.M. on Saturday, September 9, when the plaintiff left it, and when he next returned on September 13, after the storm, the house was gone. Plaintiff does not know what caused the destruction of the house. He estimated the height of the water in and around his house at fourteen to fifteen feet.

The plaintiff sought to prove by circumstantial evidence that his beach house blew away. This attempt was made largely through the testimony by deposition of a Mr. Bernard Jensen and his wife who lived in a house some two miles from the beach house in question and ran cattle in the area as a livelihood.

Mr. Jensen’s home and cattle range was on abandoned Army Camp Hulen, which range included a peninsula that jutted into Turtle Bay like a giant forefinger somewhat less than a mile across the bay from the point where plaintiff’s beach house was located. Jensen and his family spent the Sunday and Monday of the storm in a concrete refrigeration building at Camp Hulen and he made several trips onto the peninsula to drive cattle back from the high water.

Plaintiff’s case is largely predicated on three trips Jensen made onto the above described peninsula on Sunday, September 10th and two trips on Monday, September 11th.

Jensen testified that on the three trips out on the peninsula on the 10th, one at 9 to 10:30 A.M., one at 1:00 to 2:30 P.M. and the last from 3 :00 to 4:30 P.M. the water level was from eighteen inches to two feet over mean low tide, estimated wind at 100 mph. and on neither trip could he see across the bay to the shoreline where plaintiff’s beach house had been located. On September 11th Jensen made two trips; one at 9 A.M. when Jensen had to stop his car at the neck of the peninsula due to the water level. He testified that the wind at this time was 125 miles an hour by his own personal estimate. At this time he could not see across the bay or see the -area in which the house in question was located. The last trip was sometime between two and four P.M. when Jensen had to stop at the same point as in the trip immediately preceding. He estimated the wind at this time to be 150 miles an hour. Around 4:00 P.M. on this same day and apparently at the end of this second trip, Jensen testified that the lull of the storm began and he could see across the bay for the first time at which time all that he could see in the vicinity of the plaintiff’s former house location were high-line poles. There had been other houses near the plaintiff’s house and apparently they too were gone.

Between the time the storm began on Saturday and 4:00 P.M. on Monday Jensen could not see across the bay. He does not know how or what caused plaintiff’s house to disappear.

Part of the deposition wherein defendant’s counsel questioned Jensen was as follows :

“Q. All right, and when had you— after you had gotten these cattle back when had you gone into the refrigeration place to stay?
“A. You mean personally?
“Q. Well yes, until you rode the storm out.
“A. The last trip we made to see about the cattle was approximately — we left approximately two o’clock on Monday.
“Q. That is two P.M. ?
“A. Yes, sir that is, that is when we left the refrigeration building.
“Q. And got back to there about what time ?
“A. Well while we were out there moving the cattle when we went back out there again well we were seeing this water and watching the big seas that was out in the Bay, it looked like big mountains out in the Bay, you see, there’s two Bays.
"Q. Yes, sir I realize that.
“A. And the lull came while we were out there.
“Q. All right now then, you say it looked like mountains, would you say the waves were fifteen or twenty feet high?
“A. Yes, sir.
“Q. Easily that high?
“A. Yes, sir.
“Q. And of course you would agree wouldn’t you except for the concrete building that was there it would break up anything that they worked on, wouldn’t you?
“A. Yes, sir.”

Mrs. Jensen’s testimony was that the water came in through the pipes and up through the floor of the concrete refrigeration house and was about three feet deep in the house when they went up on the roof after 4 o’clock Monday afternoon and the waves were splashing at least eight feet high and were carrying trees and part of houses. The testimony of both Mr. and Mrs. Jensen, eye witnesses to the storm, shows that they sought protection against the waves and water, not the wind. They feared damage from the powerful waves “like mountains.” The building was well up off the ground, the floor being level with the bed of a truck. They moved to the roof of the building when the water was only six inches inside because the waves outside were over eight feet high.

Appellee builds his case through analogy stating that the jury could not have answered other than it did. His reasoning is to the effect that the first winds of the hurricane were from the northeast blowing the water out of the bays, that the strongest winds preceded the lull. That after the lull the wind shifted to the southeast blowing the water landward. That at 4 P.M. on Monday, the 11th, when Jensen could first see across the bay, was the time when the lull began and all he could see was high-line poles. That coupled with the fact that Jensen had driven out on to the peninsula three times on Sunday and as far as the neck of the peninsula on Monday proved that the wind was the sole proximate cause of the disappearance of the house and not water or wave action or a combination of both.

An examination of the record does not bear this out.

The morning of Monday, September 11, the undisputed testimony shows that Jensen had to stop his car at the northeast mouth of the point between Turtle Bay and Tres Palacios Bay because the entire point was flooded. This means that part of the peninsula across the Bay from plaintiff’s house location was flooded at this time.

While Jensen testified that the winds on Sunday, the 10th, were 100 mph, data from the Palacios F.A.A. Station two miles from the site in question disclosed that the wind on that day was 41.4 mph. Plaintiff himself testified that his house had withstood gales of 75 mph in the past losing only a few shingles.

While Jensen testified that the elevation at Camp Hulen was approximately the same as the location of plaintiff’s beach house, this testimony is vague and his testimony as what part of the peninsula was covered with water during any specific time is also vague and extremely uncertain. In fact when Jensen testified that during the lull of the storm when he could look across the bay and see the location where the beach house had once stood and stated that all he could see was highline poles, he does not state whether the poles were standing in water or on dry land.

Defendant introduced exhibits to the effect that the peak gusts on September 11 (Monday) were estimated at 175 mph at Port Lavaca, 160 mph at Matagorda, and 150 mph at Aransas Pass. That the high tides began affecting the upper Texas coast on Friday, September 8; that the peak tides during the storm were 18.5 feet at Port Lavaca and 16.6 feet at Matagorda. Plaintiff’s house was on the edge of the bay approximately midway between these areas.

The plaintiff has the burden of proving that the loss was covered by the policy, Coyle v. Palatine Insurance Company, Tex.Com.App., 222 S.W. 973, opinion adopted by the Supreme Court.

In the Coyle case the .facts were identical with those at bar with one difference in that it was stipulated between the parties that there was no way of knowing what damage to the house was caused by wind or what damage was caused by water. The court held that the effect of this stipulation was to exclude the loss in controversy from the indemnity provided by the policy. That indemnity was only against direct loss or damage by the wind such as we have in the case before us. The court stated:

“This means, and can only mean, a loss resulting from the wind and no other cause, and fairly capable of establishment as having been so caused. It would make a different contract for the parties to say that it contemplates a loss, not directly due to the wind alone, but to the wind and an expressly excepted cause, combined, with the part for which the wind might be responsible impossible of determination and hence purely speculative. No liability could be adjudged under the policy which was not proven. * * * If so, a loss within the contract was not established.”

The evidence in the case at bar is that there was either enough wind or enough water or a combination of both to have destroyed the beach house. These elements are so intertwined that there is no competent evidence to separate the one from the other in the point of time. While there was evidence of extremely high wind, the evidence that this alone was the proximate cause of the damage comes under the scintilla rule announced in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. Any inferences so drawn from the plaintiff’s testimony are purely speculative and hence not evidence.

Reversed and rendered that plaintiff take nothing.

Reversed and rendered.


author: ARCHER, Chief Justice.

text:
    Beulah C. NICHOLLS et vir, Appellants, v. Mrs. Harriet BARNETT et vir et al., Appellees.
    No. 11134.
    Court of Civil Appeals of Texas. Austin.
    Jan. 8, 1964.
    Rehearing Denied Jan. 29, 1964.

      Thornton & Hosey, Galveston, for appellants.
    I. Allan Lerner, LaMarque, for appel-lees.
   ARCHER, Chief Justice.

This is an appeal from a judgment denying appellants any relief in their suit to reform a deed, to annul restrictive covenants in a conveyance to real property for a declaratory judgment by the grantees in the conveyance against one of the surviving grantors and the heirs and legal representatives of a deceased grantor.

The appeal is predicated on four points assigned as error by the court in holding that the restrictive covenants were to run with the land; that the restrictive covenants in the deed were not personal covenants ; in restricting the use of the property in question and finally in failing to reform the restrictions to include the cut-off date to September 1, 1968.

As a background to this litigation it may be stated prior to June 1958, Mr. and Mrs. J. A. Raggio were the owners of the property involved and desired to sell it. About the same time Mr. and Mrs. Nicholls contacted an agent to find a suitable site for a tearoom or restaurant and through the agent, arrangements were made for the purchase of the Raggio home and a contract was entered into providing that there were no restrictions prohibiting the operation of a tearoom. An amendment was had later providing that the property was restricted to commercial usage until September 1, 1968. Mrs. Raggio was not a party to either the agreement or the amendment.

On August 15, 1958, a deed was executed by the Raggios and a note and deed of trust by appellants with certain restrictions and those at issue read as follows:

“The restriction that the only commercial purposes to which the improvements on the above described property may be put or used, or any additions attached to the existing improvements thereon may be put or used is for the operation of a restaurant or the purposes hereinafter set forth for new construction. The only commercial purposes to which the improvements or any new construction on the above described property may be put or used is for the occupancy by and operation of a medical or dental clinic, or insurance or real estate office. Nothing herein contained shall restrict or limit the use of such property for residential purposes.”

The trial court made and filed findings of fact and conclusions of law to the effect that all interested parties were present when the deed was executed and when the note and deed of trust were executed and plaintiffs accepted the deed and had ample opportunity to read and examine the contents of the deed; that Paul E. Nicholls was experienced in and had been a party to many real estate transactions; that the property conveyed was part of a larger tract owned by the Raggios, and restricted the use of the property conveyed to Mrs. Nicholls for the purpose of protecting the value and use of their other property; that Mrs. Raggio would not have executed the deed but for the inclusion of the restrictions and would not had she known that such restrictions were to terminate ten years from the date of the deed on August 15, 1958.

The court found that the plaintiffs made use of the property as a restaurant and closed it prior to the institution of the suit and found a prospective buyer who was interested in using the property for a nursing home and tried to get Mrs. Raggio’s consent to use the property as a nursing home, but was refused; that plaintiff did not complain to Mrs. Raggio about any error, mistake or omission in the deed prior to the time the property was offered for sale.

The court found that the restrictions set out in the deed dated August 15, 1958, were included in such deed not as the result of a mutual error or mistake on the part of the parties to such deed and that the date of September 1, 1968 as a “cut-off date” were not omitted from such restrictions and deed as the result of mutual error or mistake.

The Court concluded as a matter of law that the deed dated August 15, 1958 was delivered to plaintiffs. That the restrictions set out in the deed are covenants running with the land and binding on the grantees and are certain, unambiguous and reasonable and not contrary to public policy and are in full force and effect; that the deed should not be reformed or modified.

We believe that the trial court was correct in his findings which are supported by the evidence and in his conclusions of law, and that the restrictions were covenants running with the land and that the conveyance was made subject to these restrictions and binding on the purchasers, their heirs and assigns.

There are numerous cases construing restrictions and covenants similar to those in the instant case. Thomson et al. v. Dozier, Tex.Civ.App., 168 S.W.2d 319, had a fact situation like this case.

Morton v. Sayles, Tex.Civ.App., 304 S.W.2d 759, er. ref. n. r. e.; Covenants by Howard Williams, 27 Texas Law Review, page 420 ; 28 Texas Law Review, page 226.

Appellants cite Aull v. Kraft, Tex.Civ.App., 286 S.W.2d 460, er. ref. n. r. e. This case states there were no restrictions in any deed of conveyance and did not appear in the chain of title and hence were not restrictive covenants.

Restrictions are not necessarily favored in law, yet it is well established that where restrictions are confined to a lawful purpose and are within reasonable bounds and the language employed in expressing them is clear, such covenants will be enforced. Chandler v. Darwin, Tex.Civ.App., 281 S.W.2d 363.

One can protect his property by restricting adjoining property sold and with the use purposes set out in a deed.

The deed actually executed by Mr. and Mrs. Raggio and delivered to and accepted by Mr. and Mrs. Nicholls does not follow the earnest money agreement and the amendment thereof and there is no omission that might indicate a mutual error or mistake and the execution, delivery and acceptance of the deed is an entirely new and consummated agreement.

Sun Oil Company v. Bennett, 125 Tex. 540, 84 S.W.2d 447, Sec. B, opinion adopted.

Since the appellants have failed to meet the requirements for the reformation of the deed the judgment of the trial court was correct.

The judgment of the trial court is affirmed.


text:
    Sara CASH, Appellant, v. Cy KOSBERG et al., Appellees.
    No. 14259.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 18, 1963.
    Rehearing Denied Jan. 22,1964.
    J. Hubert Lee, Austin, Joe Bailey Humphreys, Dallas, for appellant.
    Ñaman, Howell, Smith & Chase, Waco. A. W. Ferguson, Dallas, for appellees.
   PER CURIAM.

On Appellees’ Motion to Dismiss Appeal.

Appellees have filed a motion to dismiss this appeal. The cause was filed in the 135th Judicial District Court of Calhoun County, Texas, and a judgment was signed on March 6, 1963. This judgment provided, among other things, as follows:

“It is therefore ORDERED, ADJUDGED AND DECREED by the Court that said Motion' for Summary Judgment be and is hereby in all things granted, and it is further ORDERED, ADJUDGED and DECREED by the Court that said plaintiff take nothing by her said suit and that all of the defendants herein go hence without day and recover their costs incurred herein, for which execution may issue ; * *

Thereafter, on June S, 1963, Joe Blalack, one of the defendants, filed a motion styled "MOTION OF JOE BLALACK TO CORRECT CLERICAL AND INADVERTENT ■ RECITALS IN THE SUMMARY JUDGMENT SIGNED MARCH 6, 1963.” Sara Cash, plaintiff below, on June 6, 1963, filed a motion in which she, in effect, joined Joe Blalack in his motion;

■ Thereafter, on August 6, 1963, the trial court entered what it styled an “AMENDMENT TO JUDGMENT.” The purport of this amended judgment was not to correct clerical and inadvertent recitals in the judgment of March 6, 1963, but to allow the defendant Joe Blalack judgment on his plea for attorney’s fees in the sum of $500.-00. • :

The record herein was filed in the Court of Civil Appeals, 13th Supreme Judicial District of Texas, on October 1, 1963, which was within the sixty-day period allowed by Rule 386, Texas Rules of Civil Procedure, from the date of the amended judgment, but more than 200 days after the rendition" of the judgment dated March 6, 1963. If there was no final judgment until the amended judgment was rendered on August 5, 1963, this appeal was timely filed, hut if the judgment of March 6, 1963, was a final judgment, then this appeal was not timely filed and the motion to dismiss it should be granted.

On March 6, 1963, when the trial court entered a judgment denying plaintiff any recovery against the defendants, and providing that all of the defendants go hence without day, it entered a judgment disposing of all parties and all of the issues, and therefore such judgment was a final judgment. We are not here interested in determining whether the trial court was in error in so doing, our only interest is to determine whether the judgment of March 6, 1963, was in law and in fact a final judgment.

Appellant contends that the judgment of March 6, 1963, was not a final judgment because it did not dispose of the defendant Joe Blalack’s plea for attorney’s fees in the sum of $500.00. We do not agree. When the judgment further ordered, adjudged and decreed “that all of the defendants herein go hence without day and recover their costs incurred herein,” it effectively disposed of the plea for affirmative relief of the defendant Joe Blalack.

In Muse v. McWilliams, Tex.Civ.App., 295 S.W.2d 680, the Court said:

“Further, the judgment of the trial court must be regarded as expressing the action of such court as revealed by the choice of language therein. The term ‘without day’, as revealed by Vol. 2, Bouver’s Law Dictionary, Rawles Third Day, page 3474, expresses the following:
‘Without Day. This signifies that the cause or thing to which it relates is indefinitely adjourned; as, when as case is adjourned without day it is not again to be inquired into.’
The language of the judgment, therefore, clearly reveals a final disposition of any action by appellee.”

The judgment was reversed on other grounds. McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643. See also: Warner Elec. Brake & Clutch Co. v. Bessemer Forging Co., Tex.Civ.App., 343 S.W.2d 471; Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161; Gehrels v. Denius, Tex.Civ.App., 229 S.W.2d 885; Rogers v. Day, Tex.Civ.App., 20 S.W.2d 104; Phillips v. Jones, Tex.Civ.App., 283 S.W. 298; Powell v. Smith, Tex.Civ.App., 242 S.W. 1115; Smallwood v. Love, Tex.Civ.App., 78 S.W. 400.

The judgment of March 6, 1963, became final thirty days after it was rendered, under the provisions of Rule 329-b, § 5, T.R. C.P., and the trial court was without jurisdiction on August 5, 1963, to amend such judgment by decreeing that the defendant Joe Blalack recover the sum of $500.00 attorney’s fees upon his plea for affirmative relief. This void act on the part of the trial court did not have the effect of extending the time for the filing of the record herein in the Court of Civil Appeals for a period of sixty days from the date of this attempted amendment of the final judgment of March 6, 1963. Texas Life Ins. Co. v. Miller, Tex.Civ.App., 114 S.W.2d 600; Miller v. Texas Life Ins. Co., Tex.Civ.App., 123 S.W.2d 756.

The record in this case was not filed in the 13th Court of Civil Appeals within the sixty-day period allowed by Rule 386, T.R. C.P., and appellees’ motion to dismiss this appeal is granted. The appeal is dismissed.


author: McDONALD, Chief Justice.

text:
    James A. GUEST, Appellant, v. Randolph WHITE, et ux., Appellees.
    No. 4191.
    Court of Civil Appeals of Texas. Waco.
    Dec. 30, 1963.
    Rehearing Denied Jan. 23,1964.
    Naman, Howell, Smith & Chase, Waco, for appellant.
    Bradley & Geren, Carl Cannon, Groes-beck, Bowlen Bond, Teague, for appellees.
   McDONALD, Chief Justice.

This is a suit for personal injuries and damages to automobile, brought by plaintiffs White against defendant Guest, resulting from a collision between the plaintiffs’ automobile driven by Mrs. White, and the defendant’s truck, driven by James Hartley. Trial was before the court without a jury which, after hearing, rendered judgment for plaintiffs for $2,356.95. Findings of Fact and Conclusions of Law filed by the Trial Court, are summarized as follows:

FINDINGS OF FACT

1) On 17 March, 1962, plaintiffs’ automobile, driven by Corine White, collided with defendant’s truck, driven by James Hartley, in the City of Mexia, in Limestone County, on U.S. Highway 84.

2) On said occasion the truck driver, Hartley, failed to keep a proper lookout to the rear.

3) Truck driver Hartley on said occasion failed to give a suitable signal of his intention to turn his truck to the left so that same was visible to one traveling to the rear of his truck.

4) Hartley was guilty of negligence in bringing his vehicle to a stop on the highway in violation of law.

5) Each of the above acts of negligence was a proximate cause of injury and damage suffered by plaintiffs.

6) The collision was not the result of an unavoidable accident.

7) Plaintiff Corine White was guilty of no act of negligence.

8) Plaintiffs’ damages were as follows:

a) Automobile 450.00
b) Hospital 265.95
c) Loss of service as housewife 150.00
d) Injuries, pain and suffering to date of trial and in future 1500.00
Total $2,356.95

CONCLUSIONS OF LAW

Defendant’s driver was guilty of acts of negligence which were a proximate cause of the damages and injuries suffered by plaintiffs, and that by reason thereof plaintiffs are entitled to recover their damages as above set out.

Defendants appeals, contending:

1) There is no evidence to sustain the finding of $450.00 damages to plaintiffs’ automobile.

2) There is no evidence, or insufficient evidence, to sustain damages for future pain and suffering.

3) There is no evidence, or insufficient evidence, that plaintiffs’ hospital charges of $265.95 was reasonable and necessary.

4) There is no evidence that defendant’s driver, Hartley, failed to keep a proper lookout to the rear (and such finding is against the great weight and preponderance of the evidence).

5) The finding that defendant’s driver Hartley failed to give a signal of intention to turn to the left is against the great weight and preponderance of the evidence.

6) There is no evidence that defendant’s driver Hartley was negligent in bringing his vehicle to a stop on the highway (and such finding is against the great weight and preponderance of the evidence).

We revert to defendant’s contentions 1), 2), and 3). The trial court fixed plaintiffs’ automobile damages at $450; hospital bill at $265.95; and “injuries, pain and suffering to the date of trial and in the future”, at $1500. Plaintiff testified he owned his automobile; that he knew the reasonable market value of same immediately before the collision in Limestone or Freestone County to be $500; and that after the collision it was worth about $50. He further testified he was paid $400. for the car by his insurance company; and that he had a $100. deductible policy on the car. Moreover, the record contains pictures of the damaged vehicle reflecting total or near total loss. We think the evidence amply sustains the court’s finding. See Calvert Fire Ins. Co. v. McClintic, CCA (n. r. e.), 267 S.W.2d 568.

The Trial Court fixed $1500. damages for plaintiff’s pain and suffering to the date of trial and in the future. The record reflects plaintiff had a laceration on each knee, on her left arm, and that her mouth was cut; that her right ankle was injured and a bone broken in her chest; that she had a cast on her ankle; that she suffered pains in her ankle, neck and shoulders; that she still suffered pain in her ankle, neck and shoulder at the date of trial; and was still under treatment of the doctor at the date of trial. We think the evidence ample to sustain the finding of $1500. damages for pain and suffering to date of trial and in the future. See: Coca Cola Bottling Co. of Fort Worth v. McAlister, CCA (n. w. h.) 256 S.W.2d 654.

As to the hospital bill of $265.95, the witness Mrs. Terry testified that she was insurance record clerk at the hospital; and that such charges were reasonable, and that she had made the entries on the record. Dr. Buchmeyer, one of the attending physicians, testified that the medical treatments and hospitalization were necessary.

Defendant’s contentions 1, 2 and 3 are overruled.

Defendant’s contentions 4, 5 and 6 assert there is either no evidence or insufficient evidence to sustain the Trial Court’s findings that defendant’s driver, Hartley, failed to keep a proper lookout; failed to give a signal of intent to turn left; and negligently stopped on the highway.

The record reflects that plaintiff was driving behind defendant’s truck. Plaintiff testified that when she saw the road ahead was clear, she started to go around defendant, sounded her horn and pulled over on the left side; that after she started around, defendant’s driver attempted to make a left turn in front of her, without giving any signal; and thereafter stopped. The collision ensued. The Trial Court evidently believed the foregoing. We think the evidence sufficient to sustain the findings complained of. Contentions 4, 5, and 6 are overruled.

The judgment of the Trial Court is affirmed.