author: WERLEIN, Justice.

text:
    CITY OF HOUSTON, Appellant, v. John MOORE, Appellee.
    No. 14492.
    Court of Civil Appeals of Texas. Houston.
    April 8, 1965.
    Rehearing Denied April 29, 1965.

      John Wildenthal, Jr., City Atty., Edgar Pfeil, Senior Asst. City Atty., Herbert M. Beazley, Asst. City Atty., Houston, for appellant.
    Robert L. Steely, Houston, Brown, Kron-zer, Abraham, Watkins & Steely, Houston, of counsel, for appellee.
   WERLEIN, Justice.

This suit was brought by appellee, John Moore, against the City of Houston Jo recover damages for personal injuries sustained by him as a result of a collision between his automobile and appellant’s road maintainer, when the maintainer undertook to make a right turn into Mangum Road from West 43rd Street in Houston, Texas, on June 13, 1961. Judgment was rendered on the jury verdict in favor of appellee for the total sum of $47,200.00.

The evidence shows that 43rd Street has two lanes for traffic moving in a westerly direction, and two lanes for traffic moving in an easterly direction, with an esplanade separating the east and west bound traffic. 43rd Street intersects Mangum Road at right angles. At the time in question ap-pellee was driving his car in company with his wife in a westerly direction, in the right or curb lane of 43rd Street. Appellee testified that they were traveling about IS to 20 miles per hour; that appellant’s grader or maintainer, which was also traveling in a westerly direction but in the left-hand lane, passed them when they were “between half and three-fourths of the way up the block toward Mangum”; that he intended to make a right-hand turn on Mangum Road; that when he was a short distance from the intersection of 43rd Street and Mangum, he saw appellant’s maintainer move toward the left, at which time he applied his brakes to slow down; that instead of making a left-hand turn, however, the maintainer made a sudden turn to the right to enter Mangum Road and collided with appellee’s automobile, wedging it between the maintainer and the utility pole which was to the right of the right lane of 43rd Street and at its intersection with Mangum Road; and that the front of the rear dual wheels of the maintainer struck his automobile on its left side, and pushed it into the utility pole. Appellee’s wife substantiated his testimony. Both testified there were no parked cars in the right lane in which they were driving and that no signal of any kind was given by the maintainer to indicate a turn in any direction.

Mr. Herring, the driver of the maintainer, testified in substance that he passed a parked car about ISO feet from the inter-' section of Mangum Road; that when he pulled around the car he looked back to see if anything was there and then gave a signal; that he stuck his right hand out when he was approximately 100 feet from the intersection, but pulled it back in so that he could steer with his left hand and lean the wheels of the maintainer with his right hand; that the maintainer had no signal device of any kind, and no rear-view mirror; that he never saw appellee’s automobile until it was wedged in between the maintainer and the utility pole, and never applied his brakes until then; that the maintainer had two wheels at the front end, and four wheels at the back, and that he could steer it and also lean the wheels so as to make a sharp turn; that its driver’s seat was higher than the top of an automobile ;. and that the cab where he sat had windows all around it.

In answer to the special issues the jury-found that the driver of the maintainer was guilty of five acts of negligence, each of which was a proximate cause of the collision, and that appellee was not guilty of contributory negligence. The jury found that the operator of the maintainer changed the course and direction of the movement of the maintainer without first ascertaining that such movement could be made in safety; that he failed to make his approach for a right turn in the right-hand lane of West 43rd Street; that he failed to give a proper signal of his intention to turn right continuously during not less than the last 100 feet traveled by the maintainer before turning; that the maintainer was not equipped with a lamp or lamps or mechanical signal devices capable of clearly indicating an intention to turn either to the right or to the left; and that the operator of the maintainer failed to make such reduction in its speed before attempting a right turn as a reasonably prudent person in the exercise of ordinary care would have made. The jury also found in effect that appellee did not fail to keep a proper lookout, and that he did not fail to have his car under proper control.

We have carefully read the entire statement of facts and are of the opinion that the jury’s findings are supported by evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. The driver of the maintainer testified that he was some six feet from the right-hand curb of 43rd Street as he approached the intersection; that he had not looked back subsequent to the time he put his right hand out momentarily and then pulled it back, which was 100 feet from the intersection, and that he was not giving any continuous signal as he approached the intersection. He also testified that he inclined his front wheels so he could make a sharp turn and that he did not slow down, and did not apply his brakes until the impact. It is our view that none of the special issues are objectionable as being on the weight of the evidence. No exceptions were filed to appellee’s general pleading of negligence. Hence the court was authorized to submit any issues of negligence raised by the evidence. Agnew v. Coleman County Electric Cooperative, 1954, 153 Tex. 587, 272 S.W.2d 877; Kainer v. Walker, Tex.Sup.1964, 377 S.W.2d 613. It may be observed here that substantially the same issue as Special Issue No. 1 has been approved in Gordon v. Levias, Tex.Civ.App., 356 S.W.2d 462, and Manley v. Wilson, Tex.Civ.App., 313 S.W.2d 339, writ ref., n. r. e.

There is no merit in appellant’s contention that appellee was guilty of negligence as a matter of law in failing to have his automobile under proper control and in failing to keep a proper lookout. There are numerous cases that hold that in the case of moving motor vehicle collisions the ultimate issues of fact are for the jury in determining whether plaintiff has been guilty of contributory negligence. Biggers v. Continental Bus System, Inc., 1957, 157 Tex. 351, 303 S.W.2d 359; Bardwell v. Anderson, Tex.Civ.App., 325 S.W.2d 929, writ ref., n. r. e.; City of Houston v. Glover, Tex.Civ.App., 355 S.W.2d 757, writ ref., n. r. e.; Alamo Motor Lines v. Maldonado, Tex.Civ.App., 271 S.W.2d 693, writ ref., n. r. e.

Appellant complains that the trial court erred in refusing to submit its requested Special Issues Nos. 15 and 16 inquiring as to whether appellee was operating his automobile at a negligent rate of speed and if so whether such negligence was a proximate cause of the collision in question. There is no evidence of excessive speed on the part of appellee other than the testimony of a police officer that the car skidded 38 feet. However, assuming that there was sufficient evidence to raise the issue, it was properly refused because it was included in the general issue of proper control. Schuhmacher Co. v. Holcomb, Tex.Civ.App., 174 S.W.2d 637, aff’d 142 Tex. 332, 177 S.W.2d 951; Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487; Fullingim v. Dunaway, Tex.Civ.App., 267 S.W.2d 483; Shiflett v. Bennett Printing Co., Tex.Civ.App., 330 S.W.2d 220. It should be noted here that appellant did not except to the submission of the issue on proper control as it could have done. See the recent ruling of our Supreme Court in Barclay v. Pitts Sand & Gravel Co., Texas Supreme Court, 1965, 387 S.W.2d 644. Had it done so, the court would in all probability have submitted the requested issues on speed.

Appellant next complains that the court erred in refusing to submit an issue on unavoidable accident. It is the contention of appellant that there was a parked car in the right-hand lane of 43rd Street about 150 feet from its intersection with Mangum Road, and that such car in some manner interfered with the rear view of the driver of the maintainer when he looked back to see if there was anything coming behind him. The driver did not testify that his view was interfered with by a parked car. The testimony of the driver of the maintainer shows that at the time he looked back he was passing or had just passed the parked car, and that he did not see appel-lee’s car. Appellee and his wife testified that they were traveling in the right-hand lane of 43rd Street and that there was no parked car.

The evidence is undisputed that the seat of the driver of the maintainer was higher than the top of an automobile. The driver of the maintainer when sitting on such high seat, had he looked back, could have undoubtedly easily seen over a parked car, if such there was. Moreover, we cannot comprehend any possible connection between a car parked 150 feet back from the intersection, and a collision close to such intersection under the circumstances of this case. In construing the evidence in the light most favorable to appellant, we are of the opinion that there is no evidence raising the issue of unavoidable accident. Our Supreme Court has held that the issue of unavoidable accident should not be submitted when it is not raised by the evidence. In Hicks v. Brown, 1941, 136 Tex. 399, 151 S.W.2d 790, the Court stated that unless there is evidence that something other than the negligence of one of the parties caused the injuries complained of, the issue of unavoidable accident is not raised. See also Collins v. Smith, 1943, 142 Tex. 36, 175 S.W.2d 407.

In Good v. Born, Tex.Civ.App., 197 S.W.2d 589, writ ref., n. r. e., the court said:

“It is true that appellant testified as to the presence of a third car in the vicinity of the accident. On the other hand, appellee testified point blank that he did not see or know of the presence of the third car. And neither appellant nor any other witness testified that the presence of this third car interfered with or influenced the conduct of either party or contributed to the accident. No witness testified to any fact which would authorize a finding that the accident could be attributed to the proximity or movement of the third car, so its presence cannot be taken into consideration in passing upon the question of unavoidable accident. In fact and in short, the evidence presented no theory under which the accident could have happened in the absence of negligence of either party and in such case the trial judge was warranted in refusing to submit the issue of unavoidable accident. Dallas Ry. & Terminal Co. v. Darden, Tex.Com.App., 38 S.W.2d 777; Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790; Collins v. Smith, Tex.Civ.App., 170 S.W.2d 562, 564. In the language of Mr. Justice Murray of this Court, in the case last cited, 'There was no evidence that something other than the negligence of one of the parties caused the collision and therefore the issue of unavoidable accident was not raised.’ ”

See also Nussbaum v. Anthony, Tex.Civ.App., 214 S.W.2d 686, writ ref., n. r. e.; Coca-Cola Bottling Co. v. Krueger, Tex. Civ.App., 239 S.W.2d 669; Andrews v. Daniel, Tex.Civ.App., 240 S.W.2d 1018, error dism.; Harrison v. King, Tex.Civ.App., 296 S.W.2d 344, writ ref., n. r. e.

Appellant complains that the amounts of $5,000.00 awarded to appellee for future medical expenses and $40,000.00 as general damages are highly excessive and contrary to the great weight and overwhelming preponderance of the evidence. The evidence shows that immediately after the accident appellee complained of headaches and soreness; that he had a restless night with aches and stillness in his arms and muscles, and pain in his neck; that the next morning he saw Dr. Stanford who gave his neck and back ultrasonic treatments, and-who after treating appellee for nearly two weeks referred him to Dr. Elliott, a highly qualified orthopedic surgeon, who took a number of x-rays and a myelo-gram and discovered that appellee had a ruptured disc between the sixth and seventh cervical vertebrae. An electro-myelogram was also taken which confirmed the condition of appellee’s neck. Dr. Elliott referred appellee, who was suffering severe pain and muscle spasms, to Dr. Thomas H. McGuire, a neuro-surgeon, who performed a major operation, a cervical laminectomy on appellee’s neck.

Dr. Elliott testified that following surgery appellee was started on various exercises and later traction therapy, and he was given various injections in the shoulder. He also testified as to the medical and hospital bills which amounted to over $2,000.00. He further testified that some year and a half after the accident appellee developed a complication of tendonitis and bursitis, and then became worse and again required traction ; that recently he had shown a worsening of his condition and more pain, and the reflexes of his forearm were diminished, and he had developed back soreness and weakness and had more stiffening in his neck and more weakness in his right hand; that three of his fingers in the right hand and his tricepts were weaker and he had some sensory numbness; that the last time he saw him his right hand was colder than his left hand, indicating new and more involvement of the nerves in his neck; that appellee would continue to experience difficulties and pain in the future; and that the injury to his neck was permanent, and would definitely require medical care which would be at least $250.00 per year indefinitely in the future, excluding surgery; that there was a strong probability that he would require additional surgery and incur in the neighborhood of $800.00 for hospital and a surgeon’s fee of $500.00 for another laminectomy and $500.00 for a fusion; and that in all reasonable probability he would suffer pain in his neck permanently.

Dr. McGuire, who was called to the witness stand by appellant, testified that he had examined appellee as late as March 4, 1964, and that he complained of numbness in the thumb, index and middle fingers on his right hand, and weakness in both arms. He testified that appellee’s shoulders were somewhat uneven in height, his left shoulder being higher than the right, and that he had weakness in all muscle groups of his left arm, and that the reflexes on the back side of the elbow were not as active as on the front of the elbow; that appellee still had some pain in the extreme rotation of his neck, and that he would have a permanent disability as the result of the accident, and a 25% limitation of motion in his neck. Dr. McGuire thought that appel-lee’s triceptor reflexes were abnormal, and indicative that disability was still present.

It is true that appellee had suffered a neck injury some years before, and that he had some trouble in the lower part of his back. It was shown that the injuries and incapacity for which recovery was sought, however, resulted from a fresh injury to appellee’s neck and were attributable to the collision in question.

Appellee was 51 years of age. His mother was living at the age of 91 and his father had died at the age of 92. While mor■tality tables would indicate that he had a life expectancy of a little over twenty years, the jury might well have concluded that he had a life expectancy greater than the average person due to the longevity of his parents.

We have concluded that the amount awarded for future medical expenses and the amount of general damages found by the jury are supported by the evidence and are not so against the great weight and preponderance of the evidence as to be unjust, and also that neither amount so found is excessive. The award of future medical expenses is a matter about which no precise evidence is required, it being a matter peculiarly for the jury, and one upon which the jury may make its award based upon the nature of the injuries, the medical care rendered before the trial, and the condition of the injured party. Edens-Birch Lumber Co. v. Wood, Tex.Civ.App., 139 S.W.2d 881, Dism., judg. cor., and authorities cited. Appellee had been on medications practically continuously since the collision occurred. The evidence shows that he still suffered from his injury at the time of the trial, and that there was a strong probability that he would require medical care costing $250.00 per year indefinitely in the future, excluding additional surgery.

Although appellee continued to try to work at his job for the Texas Office Supply Company, he was not able to perform his duties satisfactorily. He left his employment and entered into a partnership supplying boiler chemicals, at which employment he made or drew out of the business $3,250.00, about one-half the amount he had previously made per year.

It is difficult to appraise another’s pain and suffering. As stated in Port Terminal Railroad Association v. Noland, 1956, Tex.Civ.App., 288 S.W.2d 276, writ ref., n. r. e.:

“There is almost no yardstick which may be employed which will remove the decision from the realm of pure subjective thinking. The only objective approach to the problem of which this Court is aware is that of comparing the award made with those which have been approved by other courts in comparable litigation.”

There is nothing in the record to show bias or prejudice or other improper motive on the part of the jury that would warrant disturbing the verdict in this case. The evidence as hereinabove recited shows that appellee sustained severe injuries, in part permanent, that he suffered pain almost constantly, and that he was incapacitated to do the kind of work which he had previously done. We do not consider the verdict in any way disproportionate to the injuries sustained by appellee, or relatively disproportionate to awards for injuries made in other cases. Missouri-Pacific Railroad Co. v. Ramirez, Tex.Civ.App., 326 S.W.2d 50, writ ref., n. r. e.; Port Terminal Railroad Association v. Noland, supra; Thompson v. Quarles, Tex.Civ.App., 297 S.W.2d 321, writ ref., n. r. e.; Green v. Rudsenske, Tex.Civ.App., 320 S.W.2d 228; Thompson v. Robbins, Tex.Civ.App., 297 S.W.2d 247, aff’d 157 Tex. 463, 304 S.W.2d 111.

Appellant’s contention that the trial court erred in permitting appellee to read portions of the deposition of the driver of the maintainer “under the Adverse Witness Rule” is without merit. Mr. Herring, the driver of the maintainer, was placed on the witness stand by appellant after portions of his deposition had been read, and he testified substantially as he had testified in his deposition. Appellant has failed to show any harm. Rule 434. It has been held that agents of municipal corporations are subject to the Adverse Witness Rule. City of Houston v. Glover, Tex.Civ.App., 355 S.W.2d 757, writ ref., n. r. e.; City of Waco v. Criswell, Tex.Civ.App., 141 S.W.2d 1046. Furthermore, appellant objected to the deposition being offered under the Adverse Witness Rule merely on the ground that Herring was no longer connected with the City of Houston and “has not been for some time”. The evidence shows that Herring quit working for the City in September, 1963. There is nothing in the record to show when Herring’s deposition was taken, or that he was not in the City’s employ at such time.

Judgment affirmed.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    Harold SANDERS, Appellant, v. REPUBLIC NATIONAL BANK OF DALLAS, Trustee, Appellee.
    No. 120.
    Court of Civil Appeals of Texas. Tyler.
    April 1, 1965.
    Rehearing Denied April 29, 1965.

      Troy Smith, Smith & Smith, Tyler, for appellant.
    Charles H. Clark, Calhoun & Clark, Tyler, for appellee.
   MOORE, Justice.

This suit was brought by Republic National Bank of Dallas, Trustee, against Harold Sanders, defendant, seeking the recovery on a promissory note executed by Harold Sanders on December 14, 1962, in the principal sum and amount of $390.00 with attorney’s fees.

The defendant denied liability alleging that the note was obtained under circumstances amounting to economic duress and that the note was without any consideration.

Defendant also filed a cross-action for the sum of $25.00, alleging that he was likewise coerced into paying this amount which represented one-half of the closing costs in connection with the purchase of certain real property which he purchased from the plaintiff.

Upon trial of the case to the court, without the intervention of a jury, the court entered judgment in favor of the bank on the note and denied any recovery on defendant’s cross-action.

The record is before us without Findings of Fact or Conclusions of Law.

The evidence reveals that Harold Sanders was president of Southwest Nurseries, Inc. and was also president of Sanders Nursery Company, Inc. On September 15, 1961, Southwest Nurseries leased from Republic National Bank, Trustee, a building and certain grounds situated in the city of Tyler. During the year of 1962, before the expiration of the lease, Harold Sanders incorporated the Harold Sanders Nursery Company, Inc. with he and his wife owning a majority of the stock. Sanders Nursery Company, Inc. then commenced using the building and premises hereinabove referred to. Sometime during the month of August, 1962, Sanders began negotiating with the bank to purchase the property. A written contract of purchase and sale was entered into between the bank and Harold Sanders, individually, on November 12, 1962. On December 11, 1962, the bank sent a letter to Sanders advising him that they were ready to close the sale at 10 o’clock on the 14th day of December, and stating that the closing costs would be “approximately $1415 broken down as follows: $1000 down; $390 rent from 9-14-62 to 12-15-62; $10 pro rata share of preparing papers; $15 mortgage’s title policy.” On December 14, 1962, which was the day before the contract of sale was to expire, Mr. Guy Sparkman, representing the bank, came to Tyler for the purpose of closing the transaction. According to Sparkman’s testimony, he advised Mr. Sanders that since the lease on the building had expired on September 14, 1962, and since no rent had been paid on the building during the intervening three months, it was necessary that the rent in the amount of $130.00 per month, totaling $390.00, be paid. He testified that Mr. Sanders objected to the payment of the rent but he could not recall that he objected to payment of the $25.00 representing his one-half of the closing costs. He testified that although he did tell Mr. Sanders that the rent “needed to be taken care of,” he never threatened to cancel the contract of sale if the rent was not paid, because he said the discussion never reached that point. After a lengthy discussion according to him, Mr. Sanders finally agreed to pay the rent by executing* his promissory note in the amount of $390.00.

Mr. Sanders, on the other hand, testified that although he protested to the payment of the rent, Sparkman demanded the rent as a condition to compliance with the contract and he was, therefore, compelled to pay the same because the contract was about to expire and since he had already put up $500.00 in earnest money and had spent more than $300.00 improving the building, he would suffer economic loss if he refused. He further testified that the nature of the nursery business at that particular season was such that it was absolutely necessary that he purchase the building and commence construction of cold storage facilities; otherwise his business would be destroyed and he would stand to lose a considerable amount of money. He testified that although he agreed to execute the note, he told Sparkman that he did not intend to pay the same when it came due and that his reason for signing the note was to “expedite” the closing of the sale so that he could proceed with building a cold storage plant in the building which was necessary in the operation of the business. Although he admitted that someone owed the rent, he refused to pay the same out of the funds of Sanders Nursery Company, Inc. According to his testimony, Southwest Nurseries was no longer in existence. The record does not reveal whether the corporation had been dissolved.

The lease contract executed by Southwest Nurseries provided that a holding over after the expiration of the lease would operate and be construed as a tenancy from month to month at a rental of $260.00.

The contract of sale between appellant and the bank provided as follows:

“7. Rents, interest, ad valorem taxes for the then current year and escrow accounts for taxes and insurance shall be prorated at the Closing effective as of the Closing date. * * * ”

Based upon the above and foregoing facts, appellant contends that the note was executed under economic duress and was therefore void. It is well established that there can be no duress unless there is a threat to do some act which the party threatening has no legal right to do. Such threat must be of such character as to destroy the free agency of the party to whom it is directed. It must overcome his will and cause him to do that which he would not otherwise do, and which he was not legally bound to do. The restraint caused by such threat must be imminent. It must be such that the person to whom it is directed has no present means of protection. Where the demand is wrongful and it is necessary for the demanding party to resort to the courts to enforce it, there is no duress. But where the party making the demand has, or is supposed to have, the power to injure the business or property interests of the one upon whom the demand is made, without resort to the courts to enforce the demand, and threatens to do an act which would cause such injury, and which he has no right to do, and thereby enforces compliance with his demand, against the will of such party through fear of injury to his business or property, such threats amount to duress, if it appears that the party making such demand ought not in good conscience to retain the benefit received by reason thereof. Dale v. Simon, 267 S.W. 467, 470, (Tex.Com.App.); Lawrence v. J. M. Huber Corporation, 347 S.W.2d 5, (Tex.Civ.App.).

It is likewise well established that money voluntarily paid with full knowledge of all facts and without fraud, deception, duress, or coercion, cannot be received back although it was paid upon void or illegal demand or upon claim which had no foundation in fact and was paid without consideration. Gibson v. General American Life Ins. Co., 89 S.W.2d 1070 (Tex.Civ.App.)

There is no legal standard of resistance with which the person acted upon must comply at the peril of being remediless for a wrong done to him, and no general rule as to the sufficiency of facts to produce duress.

The modern doctrine is whether or not a threat constitutes duress is a question of fact dependent upon all the circumstances and the mental effect on the party claiming duress. Sabinal State Bank v. Ebell, 294 S.W. 226, (Tex.Civ.App.).

The existence of facts from which a state of duress may arise is to be determined by the trier of the fact. Whether or not Mr. Sanders acted freely and voluntarily in the execution of the note, or whether he executed same under economic duress,-as a consequence of the conduct of Sparkman, was a fact question for the determination of the trier of the fact. The Oriental v. Barclay, 16 Tex.Civ.App. 193, 41 S.W. 117; Gray v. Freeman, 37 Tex.Civ.App. 556, 84 S.W. 1105; Coleman v. Coleman, 293 S.W. 695, (Tex.Civ.App.). The same would be applicable to appellant’s cross-action to recover money paid for the closing costs.

In the absence of Findings of Fact or Conclusions of Law, the appellate court must presume that the trial court found all facts in favor of its judgment, and this court is bound by such findings, if there is any evidence of probative force to support the judgment on any theory authorized by law. Rosenberg v. Levin, 181 S.W.2d 832. (Tex.Civ.App.); City of Abilene v. Meek, 311 S.W.2d 654, (Tex.Civ.App.).

It was the bank’s theory that Mr. Sanders was not threatened or coerced, but voluntarily paid the rent. We think the record contains evidence of probative force showing that the payment was voluntarily made. Moreover, the provisions of the sales contract wherein he contracted to pay the rent would be sufficient to give the bank a right to assert their claim.

Threatening to do that which a party has a legal right to do cannot form the basis of a claim of duress by business compulsion. It would make little sense to inhibit one from claiming or enforcing his just due. The vice arises only when he employs extortive measures, or when, lacking good faith, he makes improper demands. Fischer v. Richard Gill Co., 253 S.W.2d 915, (Tex.Civ.App.); Oleet v. Pennsylvania Exchange Bank, 285 App.Div. 411, 137 N.Y.S.2d 779.

Appellant further contends that the judgment should be reversed because the undisputed evidence shows that there was no consideration for the note. Appellant takes the position that if any rent was owing, it was owed by either Southwest Nurseries or Sanders Nursery Company, Inc., and that when he signed the note he was under no legal obligation to do so; therefore, the note was executed without consideration.

Appellant’s argument seems to ignore the fact that the contract of sale was between the bank and Sanders, individually, and was not with Sanders Nursery Company, Inc. Under the provisions of the contract, the bank agreed to sell to Sanders and he agreed to buy and he further agreed to pay the rent “at the closing, effective as of the closing date.”

A benefit accruing to one of the parties in one instrument may be consideration of the promise of such party in another instrument. A valuable consideration may be either a benefit to the promissor or a detriment to the promisee — or stated in another way it may consist of some right, interest, profit or benefit accruing to one party, of some forbearance, loss, or responsibility given, suffered or undertaken by the other. 13 Tex.Jur.2d, Sec. 46, page 178; Jones v. Alvin State Bank, 332 S.W.2d 124, (Tex.Civ.App.); Lassiter v. Boxwell Brothers, Inc., 362 S.W.2d 884, (Tex.Civ.App.).

The benefit thus accruing to the bank in the contract of sale providing for the payment of rent, supplied the consideration for the execution of the promissory note in payment thereof.

The judgment of the trial court is affirmed.


author: SELLERS, Justice.

text:
    LANE-WELLS COMPANY, A Division of Dresser Industries, Inc., Appellant, v. CONTINENTAL-EMSCO COMPANY, A Division of the Youngstown Sheet & Tube Company et al., Appellees.
    No. 129.
    Court of Civil Appeals of Texas. Tyler.
    April 8, 1965.
    Rehearing Denied May 6, 1965.

      Bennett B. Patterson, Patterson, McDaniel, Moore & Browder, Houston, for appellant.
    L. L. James, Tyler, for appellees.
   SELLERS, Justice.

This suit was severed out of cause styled Tyler Bank & Trust Company et al. vs. Mrs. I. M. Lemon et al., pending in the 7th Judicial District Court of Smith County, and the severed cause is numbered 63-37.

The following stipulations of the parties appear in the record as follows:

“It is stipulated in open Court by each party hereto that each and all of the liens claimed by the parties to this severed cause is a valid lien, and that the Statute has been fully complied with by each Lien Claimant.
“It is further stipulated in open Court that each of the leases offered in evidence herein were in full force and effect at all times when any of the labor or material was furnished or performed on the said Swift Ranch Lease.
“It is further stipulated that each foreign corporation that is a party to this severed cause had a permit to do business in the State of Texas at all times mentioned in their respective pleadings.”

The appellee’s lien is for the sum of $27,-806.84 and appellant’s lien is for the sum of $17,655.72. The appellee claims that it has priority by virtue of having furnished the specified string of production casing or pipe and tubing. The appellant furnished no part of the above material.

The trial court sustained the appellee’s contention and appellant has duly prosecuted this appeal.

We take the following statement from appellant’s brief:

“There is no Statement of Facts in the case, nor was there any necessity for one. The case involves a law question only and no disputed questions of fact. The case was tried upon the stipulation of the parties. The judgment of the Trial Court, and the findings contained therein, provided that the said judgment would constitute the findings of fact and conclusions of law for the purpose of an appeal.
“All steps necessary for an appeal from this final judgment have been duly taken and this case is now before this Honorable Court for determination, and all of the prerequisites for jurisdiction of this Court appear in the Transcript.
“The question presented to this Court is a single question of law.
“Simply stated, the question is whether or not all mechanic’s and ma-terialman’s liens stand on an equal footing, and share on a propoitionate basis in parity with each other, when they have perfected valid and legal mechanic’s and materialmen’s liens, or whether the lien claimant which furnishes a special or particular item of equipment or machinery is entitled to a prior lien upon the particular equipment furnished to the exclusion of other mechanic’s and materialmen’s liens, which have been legally and properly perfected, in connection with the identical lease.
“It has been the purpose and intent of both counsel for the Appellant and counsel for the Appellee, to simplify the issues that will be before this Court as to the proper interpretation of Senate Bill 236 [264], Acts of the 55th Legislature, 1957, beginning with Art. 5473, which is the Mechanic’s & Material-man’s Lien Law as applied to oil and mineral property. We have tried to stipulate the facts and agree to the form of the judgment as entered in order to be of assistance to this Court, and reduce the consideration of this case to one and the only issue of law. In other words, we desire to present only to this Court a test of the meaning of the 1957 Amendment to the oil, gas and mineral mechanic’s and material-men’s lien law.”

Article 5473, Contractor’s Lien, as amended in 1957, Vernon’s Ann.Civ.St. art. 5473, is as follows:

“An person, corporation, firm, association, partnership, artisan, material-man, laborer or mechanic who shall, under contract, expressed or implied, with the owner of any land, mine or quarry, or the owner of any gas, oil or mineral leasehold interest in land, or the owner of any gas pipeline or oil pipeline, or the owner of any oil or gas pipeline right-of-way, or with the trustee, agent or receiver of any such owner, perform labor, furnish or haul materials, machinery or supplies used in digging, drilling, torpedoing, operating, completing, maintaining or repairing any such oil or gas well, water well, mine or quarry, or oil or gas pipeline, shall have a lien on the whole of such land or leasehold interest therein, or oil pipeline, or gas pipeline, including the right-of-way for same, or lease for oil and gas purposes, the buildings and appurtenances, and upon the materials, machinery and supplies so furnished or hauled, and upon all other materials, machinery and supplies owned by such owner and used in digging, drilling, torpedoing, operating, completing, maintaining or repairing any such oil or gas well, water well, mine or quarry or oil or gas pipeline, and upon said oil well, gas well, water well, oil or gas pipeline, mine or quarry for which the same are furnished or hauled, and upon all of the other oil wells, gas wells, buildings and appurtenances, including pipeline, leasehold interest, and land used in operating for oil, gas and other minerals, upon such leasehold or land or pipeline and right-of-way therefor, for which said materials, machinery or supplies were furnished or hauled or labor performed. Provided, that if labor, supplies, machinery or materials are furnished to or hauled for a leaseholder, the lien hereby created shall not attach to the underlying fee title to the land.”

The following is the language added to the above Statute in 1957:

“ * * * upon all other materials, machinery and supplies owned by such owner and used in digging, drilling, torpedoing, operating, completing, maintaining or repairing any such oil or gas well, water well, mine or quarry, or oil or gas pipeline.”

Old and new statutes which are not positively repugnant will be construed so as to give effect, if possible, to both. Standard et al., Relators v. Sadler, Commissioner of the General Land Office et al., Respondents, Tex., 383 S.W.2d 391.

It is our duty to uphold the old statute as well as the amended statute, if this can be done. Prior to the amendment, Article 5473 did not give a lien to laborers and mechanics on property not furnished by the lien claimant. 43 Tex.Jur.2d, § 540, p. 368.

Under the amendment the mechanic, the laborer, and materialman may now acquire a lien on any other property belonging to such owner.

The big question here is, Does the lien acquired under the amendment place the lienholder on an equal or parity with the lien acquired by the materialman who furnished the pipe and tubing in this case ? We think not.

When you consider the language added to the statute in 1957, it gives to the mechanic, laborer and materialman a lien upon all other property of the owner of the lease at the time the work or materials are furnished. Since the leaseowner title to the pipe furnished for the drilling of the well was at all times burdened with the materialman lien, it was not owned by the leaseowner in the sense that he could by contract with other laborers, mechanics and materialmen give them a lien on an equal footing with the original materialman who furnished the pipe and tubing.

We think this conclusion is supported by 43 Tex.Jur.2d § 540, p. 370, where it is said that the amendment to Article 5473 broadening the statute could not give such a lien:

“ * * * Nor does the mechanic’s or laborer’s lien attach to any materials, machinery, or supplies that have been furnished by a materialman, * * *»

Finding no error in the record, the judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    GULF, COLORADO & SANTA FE RAILROAD COMPANY, Appellant, v. R. A. PARMER, Appellee.
    No. 6730.
    Court of Civil Appeals of Texas. Beaumont.
    March 25, 1965.
    Rehearing Denied April 31, 1965.

      Chilton O’Brien, Beaumont, for appellant.
    Darden, Fowler & Creighton, Conroe, for appellee.
   STEPHENSON, Justice.

This is an action for damages resulting from a collision between a bus and a train. Trial was by jury and judgment was rendered for plaintiff, the owner and driver of the bus. The parties will be referred to here as they were in the trial court.

The jury found the crossing involved was “extra-hazardous” and that defendant was negligent in not having a flagman, which was a proximate cause of the collision. Defendant contends there was no evidence to support these jury findings, that there was insufficient evidence, and that such findings were contrary to the weight and preponderance of the evidence. Considering first the no evidence points, we look only to the evidence favorable to such jury finding.

We are aware of the general rule that unless there is an extra-hazardous crossing, the lawful presence of the train at the crossing is sufficient warning in itself to warn travelers on the highway approaching in a prudent manner. We must view the situation as it existed on the night of the collision in order to determine whether or not this crossing was extra-hazardous. This law was recently restated by the Supreme Court in Fort Worth & Denver Railway Company v. Williams (Tex.1964) 375 S.W.2d 279. A railroad crossing may present no undue danger at one time, while at another it may be extra-hazardous. The degree of danger involved depends on the circumstances existing at the time of the accident. This Williams case, supra, quotes Tisdale v. Panhandle & S. F. Ry. Co. (Tex.Com.App.1921) 228 S.W. 133, 16 A.L.R. 1264, as follows:

“A flagman might not be required under the law at a certain crossing at one time, and yet it might be negligence to fail to provide one there at another time. The sole question for determination is whether or not at the time of the accident the conditions surrounding the crossing in question rendered it more than ordinarily hazardous or unusually dangerous.”

We now look at the evidence favorable to the findings by the jury that this was an extra-hazardous crossing, that defendant was negligent in not having a flagman and that this was a proximate cause of the collision. The collision occurred at about 8:50 p. m., well after dark, March 13, 1962. There were no automatic controls at this intersection. The crossing involved is situated in the City of Conroe. The City street, Tenth Street, and the railroad tracks intersect at approximately right angles. Tenth Street runs generally north and south, and the tracks east and west. Plaintiff was driving his bus in a southerly direction, and defendant’s train involved in this collision was traveling in a westerly direction. Defendant had two sets of tracks at this intersection, the main line and the passing tracks. The train which collided with plaintiff’s bus was traveling on the passing track located about 4 or 5 feet south of the main line. Defendant had a second train which was proceeding in an easterly direction on the main line and was located about three blocks west of this intersection at the time of the collision. Houses located on Tenth Street obscured the view to the east until a point about 67}4 feet from the center line of the passing track. The passing track is slightly lower than the main line. The train which struck the bus was moving up a slight incline through a cut, the track being lower than the surrounding right-of-way. The weeds on top of the cut had grown to a height of some 4 or 5 feet. Both trains had their lights on bright. The evidence showed that vehicular traffic is heavy at all times at this crossing. Plaintiff testified he drove up to this crossing and stopped at the cross-buck sign, which is 301/£ feet from the center line of the passing track, looked to his left, saw nothing, looked to his right, saw the train approaching from the west and proceeded to cross the tracks. His bus passed over the main line but was struck at the rear end of the bus by the train approaching from the east. The witness Fenley, in testifying about the view plaintiff had, made this statement:

“Well, the way that embankment is there, he couldn’t have seen hardly anything until he got on the track.”

This witness testified that the weeds on the embankment obscured a person’s view as he approached the track and that the view would be worse at night. The witness, Nell Owens, a passenger on the bus, testified that she did not see the train approaching from the east because it was dark and there was a bunch of weeds growing up there. The witness, Helton, testified he made a traffic count at the crossing during an eight hour period in February, 1963, and that 428 vehicles used the crossing.

The jury could have concluded that under the circumstances existing at the time of this collision that this crossing was extra-hazardous. With trains approaching from opposite directions, the beams of the bright headlights pointed toward one another would likely appear to be only one beam, just as it would not be easy to detect from which side a bell or horn had been sounded. The fact that these two trains were approaching the same intersection at night under the physical layout as it existed, that is, the houses, the cut or channel, the weeds and the inclined track, all were circumstances in evidence which would support the jury finding of “extra-hazardous”. As to negligence and proximate cause in connection with the failure to have a flagman, we cannot assume that because plaintiff failed to see the train approaching from the east, he would not have seen a flagman with a flare or lantern standing in the intersection. None of the items set out above supporting the finding that this crossing was extra-hazardous would have prevented plaintiff from seeing a flagman. These findings by the jury were supported-'.by this same evidence.

In passing upon defendant’s points that there was insufficient evidence and that the jury’s findings as to extra-hazardous and negligence and proximate cause as to failure to have a flagman were against the great weight and preponderance of the evidence, we considered the entire record. No witness personally knew of any previous collision at this crossing even though several City policemen testified in the case. There is a great deal of evidence conflicting with that introduced by plaintiff as to the visibility at this crossing. This evidence did not establish the point as a matter of law, but only served to raise an issue for the jury to determine, which it did favorably to the plaintiff. The fact there was no evidence as to the number of trains operated over this crossing nor their rate of speed does not negative “extra-hazardous” as a matter of law. These are merely items of evidence that have been considered, along with many others, in some of the cases involving extra-hazardous crossings. Such findings of the jury were not so against the weight of the evidence as to be clearly wrong or manifestly unjust. The points are overruled.

The jury found that defendant’s train was being operated at a greater rate of speed than it would have been operated by a person of ordinary prudence under the same or similar circumstances, and that this was a proximate cause of the collision. Defendant contends there was no evidence to support these findings, that there was insufficient evidence, and that such findings were contrary to the weight and preponderance of the evidence. First, we consider the favorable evidence on the “no evidence” points. There was no pleading and no evidence as to any statute or ordinance regulating the speed of this train. The tape on the train involved in this collision showed the speed to be 13 miles per hour as this train approached the crossing. The question as to whether a reasonably prudent person would have driven the train at a speed of 13 miles per hour as he approached the intersection with Tenth Street in the City of Conroe, after dark, with the houses situated as they were, with the tracks located as they were, with the incline of the track upon which the train was traveling, with the cut or channel or embankment as they were, with the weeds growing 4 or 5 feet high, and with another train approaching within about three blocks, with the bright lights on both engines and the bells and horns on both engines being sounded, was a question of fact for the jury. Such action was not one of no evidence as a matter of law. Considering the entire record, such findings of negligence and proximate cause were not so contrary to the weight of the evidence as to be clearly wrong or manifestly unjust. The points are overruled.

Defendant further contends there was no evidence to support the findings of the jury favorable to plaintiff on the theory of discovered peril, that such evidence was insufficient to support such findings and that such findings were contrary to the great weight and preponderance of the evidence. The quantum of proof required of the plaintiff on these elements of discovered peril, in order to entitle plaintiff to have the issues submitted to the jury, was whether the facts and circumstances, together with all reasonable inferences therefrom constituted some evidence of probative force of their existence. Much of the evidence has already been discussed. There were several estimates as to the speed the train was traveling. The tape, already mentioned, showed the speed to be 13 miles per hour for a distance of 500 feet as the train approached this crossing. Bertram, the engineer, estimated the speed of the train at such point to be from 6 to 8 miles per hour. The tape was not conclusive proof of such speed and the jury was entitled to accept either version. Bertram also estimated the speed of the bus to be 6 to 8 miles per hour. At 13 miles per hour, the train traveled 19.072 feet per second. At 6 miles per hour, the train or bus would travel 8.8 feet per second. At 8 miles per hour, the bus would travel 12 feet per second. Bertram testified he first saw the bus when the train was about 130 feet from the crossing, although he had seen the lights on the bus before that time. Bertram also testified he applied the brakes on the train when the train was 40 feet from the crossing, which was the point at which he first realized the bus was not going to stop. The rule is that the jury is not required to accept the testimony of the engineer as to when he discovered the danger and as to the efforts made to avoid the injury. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561. An expert witness called by defendant testified that allowing second reaction time, this train could be stopped in 165 feet if traveling 13 miles per hour, 95 to 140 feet if traveling 8 miles per hour, and 30 to 55 feet if traveling 6 miles per hour. At 13 miles per hour, 4.7 seconds elapsed while the train was traveling a distance of 90 feet, which is the distance Bertram testified to between the time he said he first saw the bus and the time he applied the brakes. At 6 miles per hour, 10.2 seconds would have elapsed as the train traveled such 90 feet. Bradshaw, the conductor on defendant’s train, testified that if the bus had traveled 5 more feet it would have cleared the crossing, and that just a split second was needed for the bus to get out of the way. In much of defendant’s argument it is assumed that the only way this collision could have been avoided would be for the train to stop. In the Ford case, supra, it is stated:

“The duty rested upon the train operatives to slacken the speed of the train even if it could not be stopped before reaching the crossing.”

The jury could have concluded that the engineer delayed too long in applying the brakes after discovering the perilous position of the plaintiff, and that a prompt application of the brakes would have permitted the bus to pass over the tracks in safety. There was evidence of probative value with reasonable inferences to support the findings of the jury. Considering the entire record, we do not find such finding to be clearly wrong and manifestly unjust. These points are overruled.

Defendant next attacks the finding of the jury that plaintiff did not fail to listen for and heed the warning signals of the train as being supported by no evidence and as being against the weight of the evidence. The jury found that as the train traveling west approached the crossing it gave both an audible whistle signal and a bell signal. Plaintiff testified: that as he approached the crossing he heard a train approaching going east; that he stopped the bus approximately where the railroad crossbuck sign is; that he looked to the right and then to the left; that when he looked to the right he saw a train six or seven hundred yards up the track; that this train had a light on and was blowing its whistle; that he heard no other train whistle; that he looked back to the left and saw nothing coming from his left; that he then started across the tracks and something hit the rear end of the bus and turned it over. Plaintiff testified in response to a question on cross-examination that he concentrated his listening facilities to the east (left) and did not hear anything. The jury answer complained of in this point included both “listen for” and “heed”. This testimony of plaintiff, together with the other evidence mentioned in connection with other points as to the conditions surrounding this crossing on the night of the collision, support the jury’s answer. Considering the entire record, such finding is not so against the weight of the evidence as to be clearly wrong or manifestly unjust. These points are overruled.

Defendant maintains that plaintiff was guilty of negligence which proximately caused the collision as a matter of law when he drove his bus onto the crossing. Defendant had plead Sec. 86(c) and (d) and Sec. 88 of Article 6701d, Vernon’s Ann.Tex.Civ.St. These articles define a driver’s duties when crossing a railroad track as an individual and as a bus driver. Both require the driver to stop and not to proceed until he can do so safely. The jury found that plaintiff stopped within the statutory distance before going onto the crossing; the train was not plainly visible; that the train approaching from the east was not in hazardous proximity to the railroad crossing before plaintiff’s bus reached a point IS feet from the nearest rail of the railroad track upon which the train was approaching; and that plaintiff did not go onto the crossing when he could not do so safely. The fact that a collision occurred does not convict plaintiff of negligence as a matter of law under these statutes. The Supreme Court has made it clear that the “reasonably prudent person test” is applied to the statutory requirements that a person stop under certain factual situations. See Texas & New Orleans Railroad Co. v. Day, 159 Tex. 101, 316 S.W.2d 402, and Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931. The same rule of law would apply to a driver “proceeding” after stopping. In this case whether plaintiff proceeded before he could do so in safety was a question of fact for the jury. The point is overruled.

It is next contended that counsel for plaintiff was permitted to make improper and prejudicial remarks in his argument to the jury. This collision occurred March 13, 1962. Defendant offered in evidence some photographs taken March 29, 1962. These photographs were taken by a professional photographer under the direction of a Mr. Stephens, who was defendant’s employee. During the course of the testimony much was said about the condition of the weeds and whether or not the weeds were as high as shown by some photographs offered in evidence by plaintiff, and also whether or not the weeds had been cut or mashed down so as to appear as shown by photographs offered in evidence by defendant. Defendant’s photographs were admitted in evidence even though the photographer testified that he had no idea whether the crossing was in the same condition in the pictures as it was on the date of the collision. Mr. Stephens was not called as a witness even though he was present in court at the time of the trial. During the jury argument counsel for plaintiff made the following statement:

“Now, I’m not going to stand up here and tell this jury that Mr. Stephens cut those weeds down or that he had them cut down, but I am going to say this: It was just a short distance from Mr. Stephens’ chair to that witness stand, for him to get up there and deny that those weeds were cut down or broken down or not. It was just a short distance, and for some reason unknown to me, known only to the Gulf, Colorado and the Santa Fe Railroad — ”

Defendant’s objection to this argument was overruled. Later in the argument counsel for plaintiff mentioned the fact that neither Mr. Stephens nor other employees of the defendant came into court to testify about the weeds, and clearly implied that the reason such witnesses were not called is that their testimony would have been detrimental to the defendant. The law is well settled in Texas that counsel is permitted to comment on the failure of his adversary to call a witness and conclude that such failure raises a presumption that the testimony, if produced, would be unfavorable. However, the absent witness must be under the control of or standing in some relation to the opponent and the absent witness must have obtained, or was clearly in a position to obtain, material information on the point at issue. Tex-Jersey Oil Corporation v. Beck, 157 Tex. 541, 305 S.W.2d 162. In the condition of this record, that is, the failure of the defendant to offer proof that the condition of the weeds was the same in the defendant’s pictures as on the date of the collision, and the fact that the claim agent of the defendant, Mr. Stephens, was in position to obtain this information, we do not think error was committed. In any event, we do not think such action was reversible error under Rule 434, Texas Rules of Civil Procedure.

Also complained of in the jury argument by counsel for plaintiff was the following statement:

“As a result of the hurting in his foot, it aches and pains, just like Dr. Lennon has told you about, and you’ll notice that they didn’t bring any medical experts in here to controvert anything that Dr. Lennon said about Jack Parmer’s condition.”

Counsel for defendant objected as follows:

“Mr. O’Brien: May it please the Court, I would most certainly object to that argument because, although Dr. Lennon claimed there was a privilege, there is no way under the law in Texas for us to force Mr. Parmer to submit to any further physical examination.”

Another of plaintiff’s counsel followed with this remark:

“Mr. Creighton: He couíd have requested the opportunity to have a physical examination, and its frequently agreed to, and he’s never done it and never did even offer to have it done.”

The trial court then gave this instruction to the jury:

“The Court: Ladies and Gentlemen, don’t consider the remarks made by any of the counsel. Now, let’s get moving along.”

We construe this instruction of the court to have properly excluded the improper arguments made by counsel for plaintiff. If counsel for defendant was not satisfied with this instruction, further objection and request for further instruction should have been made at that time. We find no error in this point.

In its amended motion for new trial defendant assigned as error the fact that the jury was improperly constituted because of the presence of juror Tannery. Mr. Tannery had stated on voir dire examination that even though he knew the plaintiff, he knew of no reason that he could not be a fair and impartial juror. During the course of the trial it developed that plaintiff had a loan from the First National Bank of Conroe upon which he was still making payments. Mr. Tannery was called to testify on motion for new trial and it developed that at the time of this trial he was personnel director of the First National Bank of Conroe and later became manager of the automobile loan department, and also that the bank employees received a Christmas bonus. This situation does not bring Mr. Tannery within the rule disqualifying a juror interested directly or indirectly in the subject matter of the suit. The point is overruled.

The issue as to damage suffered by plaintiff listed future medical expenses as one of the items that the jury could consider. There was no evidence as to past medical expense and this item was not included in the damage issue. Defendant contends that the trial court erred in permitting a medical witness called by plaintiff to give his estimate as to the amount of future medical expense. The doctor had first stated that he would have to give an “educated guess” as to the amount of future medical expense. Upon objection, these questions and answers were given:

“Q. (Mr. Creighton, continuing): Doctor, in order to be perfectly fair, would you give me your opinion, based on reasonable medical probability as to the smallest or the minimum amount you would expect that he would incur in the future for medical and drugs ?
“A. Counting his drugs, a thousand, perhaps two thousand dollars.
“Q. That would be an estimate throughout his life time?
“A. Yes, sir.”

It must be shown by probative testimony that an expense claimed is reasonable and necessary. Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377. The question asked the doctor satisfied the “necessity” of the future medical expense, hut there is no evidence that the estimate given by the doctor was a “reasonable” amount. It was error for the trial court to include future medical expense in the damage issue with no proof that the estimated cost was reasonable in amount. This error may be cured by re-mittitur. Unless plaintiff (appellee), within two weeks after the filing of this judgment, files a remittitur in the amount of $2,000.00, this case will be reversed and remanded for a new trial. If remittitur is executed and filed with the clerk of this court within said time, the judgment will be affirmed for the balance.


author: WILSON, Justice.

text:
    CONTINENTAL CASUALTY COMPANY, Appellant, v. Richard H. BOERGER, Appellee.
    No. 4325.
    Court of Civil Appeals of Texas. Waco.
    April 1, 1965.
    Rehearing Denied April 22, 1965.

      The Kempers, John D. Richardson, Houston, for appellant.
    Miller & Gann, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for ap-pellee.
   WILSON, Justice.

The question in this suit by insured against the health and accident insurer is stated by the insurer to be whether insured “actually made out a case of ‘repudiation’.”

Judgment was rendered for insured for the commuted value of “unaccrued disability benefits” on jury findings to the effect that insured will be totally disabled for 537 weeks, and that insurer’s agent told insured the company “had paid him all the money it owed under the terms of the policy in question and did not intend to make any more payments under such policy in the future.”

Appellant says there is no support in the record for a finding of anticipatory breach or repudiation, and, alternatively, insured failed to establish that insured accepted the repudiation and acted thereon. No complaint is presented concerning the disability findings. The charge is not attacked.

Insured alleged insurer paid disability benefits under its policy for 52 weeks, and then “completely repudiated its said policy without just cause, and ceased making such payments, even though your plaintiff remains wholly and continuously disabled.” He prayed for weekly indemnities computed on the basis of his remaining life expectancy, with statutory penalty. (There is no complaint as to recovery of the penalty.) Insurer specially pleaded three policy provisions for insurance benefits, and alleged, “Plaintiff has already been paid benefits under each and all of these three provisions, and has been paid all of the benefits to which he has become, or can ever be, entitled under the contract with respect to the injury he received.” It also alleged payments it had made by mistake exceeded its liability because insured had changed to a more hazardous occupation, and he had been notified his occupation had been reclassified, and his premiums entitled him only to reduced benefits. Appellant alleged it had refused further payment because it had just cause to refuse under the contract.

In Texas, where “a party * * * obligated by contract to make monthly payments of money to another absolutely repudiates the obligation without just excuse, the obligee is ‘entitled to maintain his action in damages at once for the entire breach, and is entitled in one suit to receive in damages the present value of all that he would have received if the contract had been performed.’ ” Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405, 406; Pollack v. Pollack, Tex.Com.App., 39 S.W.2d 853, 855, id., 46 S.W.2d 292, 295.

Repudiation consists in “such words or actions by a contracting party as indicate that he is not going to perform his contract in the future.” Samuel Williston, “Repudiation of Contracts,”’ Select Readings, Assoc. of American Law Schools 1080; 14 Harv.L.Rev. 317. See Moore v. Jenkins, 109 Tex. 461, 211 S.W. 975, 976. It is conduct which shows a fixed intention to abandon, renounce, and refuse to perform the contract. Kilgore v. Northwest Texas Baptist Educational Soc., 90 Tex. 139, 37 S.W. 598, 600; Burks v. Neutzler, Tex.Com.App., 2 S.W.2d 416, 418; Moore v. Middleton, Tex.Com.App., 12 S.W.2d 995, 997; Lumbermen’s Mutual Casualty Co. v. Klotz, 5 Cir., 251 F.2d 499. It is helpful also to remember what repudiation is not. A denial that the facts entitle insured to recovery under the policy is not a repudiation. Sanders v. Aetna Life Ins. Co., 146 Tex. 169, 205 S.W.2d 43, 45, 173 A.L.R. 968; Needham v. American Nat. Ins. Co., Tex.Civ.App., 78 S.W.2d 1059, 1060, writ dism.; Needham v. American Nat. Ins. Co., Tex.Civ.App., 97 S.W.2d 1016, 1021; Williams v. Mutual Benefit Health & Accident Ass’n, 5 Cir., 100 F.2d 264. The doctrine of anticipatory breach is not applicable where insurer “merely denies liability or claims defenses under the terms of the policy.” Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405, 407. Mere refusal, “upon mistake or misunderstanding as to matters of fact or upon an erroneous construction of the disability clause, to pay a monthly benefit when due” is not a repudiation of the policy. Universal Life & Acc. Ins. Co. v. Sanders, above.

These are the facts pointed to by appel-lee as manifesting a renunciation or repudiation: Insured testified the manager of insurer’s claim department, after two or three months of disability payments, told insured: “Too bad you don’t get any better. I had better send you to a good doctor,” and sent insured to the physician who continued to treat him; that nearly a year after the claimed injury, disability payments were suspended, being thereafter resumed at a reduced weekly rate; that the agent told him the company had overpaid him and asked him to surrender his policy, and “told me they would like to get me off their books and to turn in my policy” ; that “he wanted the policy cancelled,” but also offered insured $400 “to try to get me off their books”; that insured insisted on timely payment of indemnity. “I even asked him would I still be insured and he said ‘absolutely not’. All he was interested in was getting my policy,” but the agent “never made the unconditional request for the policy without offering money.” There was equivocal testimony the agent told insured the policy was invalid. It was stipulated that when the agent “wanted to get the policy back, that was when Mr. Boerger” and the agent “disagreed what Mr. Boerger was entitled to under the policy sued upon.” Plaintiff testified further, however, that about six months later he decided he was not going to send further medical reports to the agent because the agent said, “You are can-celled out, we are not going to pay you any more”.

The evidence relied on by insurer here, to be sure, would have supported a negative answer to the issue concerning what the agent told insured, as it contends, and was sufficient to support the conclusion there was no repudiation. The question presented is a close one. In our opinion, however, the evidence summarized must be held legally sufficient to sustain the finding concerning repudiation as a basis for judgment. See Universal Life & Accident Ins. Co. v. Shaw, 139 Tex. 434, 163 S.W.2d 376, 379; Needham v. American Nat. Ins. Co., Tex.Civ.App., 78 S.W.2d 1059, 1061, writ dism.; Needham v. American Nat. Ins. Co., Tex.Civ.App., 97 S.W.2d 1016, 1018, writ dism.; American Casualty & Life Co. v. McCuistion, Tex.Civ.App., 202 S.W.2d 474, 478, writ ref. n. r. e.; Williams v. Mutual Benefit Health & Accident Ass’n, 5 Cir., 100 F.2d 264; see Commercial Travelers Casualty Co. v. Dymke, Tex.Civ.App., 279 S.W.2d 405, 408. It is unnecessary, under this holding, to pass on appellee’s contention that the insurer also repudiated the policy by its attempted reclassification.

The insurer insists, nevertheless, that insured failed to establish he “accepted” such repudiation and acted thereon. It relies on language in Lumbermen’s Mutual Casualty Company v. Klotz, 5 Cir., 251 F.2d 499, 505, based in turn on a statement in Pollack v. Pollack, Tex.Com.App., on rehearing, 46 S.W.2d 292, 293 that repudiation before time of performance amounts to a “tender of a breach,” and “if it is accepted” constitutes an anticipatory breach.

If the Klotz decision is interpreted as holding it was essential that insured communicate “acceptance” of repudiation in the sense that an offeree “accepts” an offer under contract law, we think the rule is otherwise. “Upon principle the election or assent of the other party has nothing to do with the effect of repudiation as a cause of action. Such assent would constitute a rescission, not a breach. No notice need be given by plaintiff that he treats defendant’s repudiation as a breach. Nothing more is necessary than bringing the action, and this should be allowed at any time before the repudiation is withdrawn.” Henry W. Ballantine, “Anticipatory Breach,” Select Readings on the Law of Contracts, Association of American Law Schools 1931, p. 1085.

The quoted language in the Pollack case is clearly explained in the Court’s original opinion, 39 S.W.2d 853 at page 857. It is there said repudiation “a£= fords to the other party the opportunity to accept the declarations, if he chooses to do so.” He has an option to treat the repudiation as such, and “may at once bring an action as on a breach of it”, or he may treat the notice of repudiation as inoperative so as to keep the contract “alive for the benefit of the other party as well as his own.” He makes his election to adopt the former course by filing a suit for damages, resolving his right “into a mere cause of action for damages.” We do not interpret the Klotz decision as holding otherwise. That the damages alleged by plaintiff are related directly to what the contract would have provided is not, as appellant argues, inconsistent with the latter course. His measure of damages is “the present value at the time of trial of all that he would have received if the contract had been performed.” Pollack v. Pollack, Tex.Com.App., 39 S.W.2d 853, 857; Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405, 406.

In our opinion the effort by plaintiff to recover statutory penalties and attorneys’ fees does not negative his election to sue for anticipatory breach, nor does it affirm the continued existence of the contract, as appellant.urges. Art. 3.62 Insurance Code, V.A.T.S. authorizes recovery of 12% damages in cases where “a loss occurs” and the company liable “shall fail to pay the same.” These damages are recoverable for failure to pay a loss for which the insurer is liable. The suit for these damages is not a suit “on the policy”, but is one under the statute for failure to pay a loss originally covered by the policy. We are here concerned neither with whether recovery under the statute was authorized, nor as to how much could be recovered. Those questions are not raised. We hold only that including this element in the suit did not make the action one upon the policy, and did not preclude recovery of damages for repudiation.

Appellant’s final complaint is that the court erred in rendering judgment based on weekly indemnities of $100 per week (the amount the policy provided when issued), rather than on the basis of $66.67 per week (the amount due under its reclassification of plaintiff’s occupation as having become more hazardous than when the policy was issued). The jury answered affirmatively an issue inquiring whether plaintiff, at the time of injury, had changed his occupation to one “classified as more hazardous” than that stated in the policy. There were no objections to this issue, or to that following, under which the jury found insurer knew when it issued the policy that plaintiff was engaged in buying cattle. There is evidence to show he changed from an executive position, where he did some cattle buying, to the latter occupation almost exclusively.

The jury findings, under the evidence, did not determine the defensive ground upon which the insurer had the burden of proof: whether it was authorized to reduce benefits to $66.67 per week as it pleaded. It is true appellant did undertake to reduce the benefits after paying plaintiff weekly indemnities of $100 per week for over 30 weeks. Appellant’s agent did tell him that since his duties were “strictly those of a cattle buyer” his classification was changed to “a D-star risk,” and his premium payments under this classification would only entitle plaintiff to $66.67. What the source of the agent’s rating, classification, indemnity computation or premium amount was is a matter of speculation. That source is certainly not the policy. Apparently the “rating manual” of an entirely different company was borrowed for the purpose.

The policy provided it contained the entire contract except “as it may be modified by the company’s classification of risks and premium rates” after change of insured’s occupation to one classified by the company as more hazardous. It provided the company would, in such event, pay only the portion of indemnities which the premium would purchase for the more hazardous occupation. It provided that the applicable rates and classification of risks should be that “last made effective” in Texas by appellant prior to the occurrence of the loss for which it is liable. What this was there is no evidence to suggest.

Appellant has thus not established as a matter of undisputed evidence that the judgment should be computed on the reduced rate; and it has obtained no jury finding upon which the amount of any reduction can be based. If it may be said the issues submitted are necessarily referable to appellant’s independent ground of defense, and that there is any evidence on the unrequested omitted issues, these latter are deemed found in support of the judgment by Rule 279, Texas Rules of Civil Procedure.

Affirmed.