text:
    Mrs. Neva E. SLAYTER et vir, Appellants, v. The HOME INDEMNITY COMPANY, Appellee.
    No. 38.
    Court of Civil Appeals of Texas. Houston (14th Dist.).

    March 13, 1968.
    Rehearing Denied April 17, 1968.

      Louis D. Carroll, Mike Willatt, Carroll, Matthews & Willatt, Houston, for appellants.
    J. W. Patten, Norman C. Stafford, Stafford and Weitinger, Houston, for appellee.
   SAM D. JOHNSON, Justice.

This is a workmen’s compensation case wherein appellant, Neva E. Slayter, claimed workmen’s compensation benefits for disabling injuries resulting from a fall suffered while at work on her employer’s premises on June 1, 1964. Both sides agreed that appellant injured her foot in this fall, but there was disagreement as to whether or not she also injured her back. The areas of dispute during the trial were whether or not the appellant injured her back in the fall, and if so, the extent of her disabilities resulting from such back injury.

After the trial by jury, the court rendered judgment for the appellant on the basis of the jury findings that Neva E. Slayter suffered forty-six weeks total disability as a result of the fall and that she has and will suffer no partial disability. Appellant’s motion for new trial was overruled and her appeal is perfected to this court.

The record indicates that at the time of the accident, the appellant was a forty-five year old woman employed by Retail Merchants Association, Inc. She slipped and fell on a waxed floor while at work on June 1, 1964. The next day she went to a doctor but continued to work for approximately ten days, after which she remained off work for approximately eleven weeks. She was paid workmen’s compensation at the rate of $35.-00 per week during this eleven weeks. She returned to work on approximately August 31, 1964, and continued to work until some time in March, 1965. On April 15, 1965, she was hospitalized for a myelogram. She continued to work until May 5, 1965, on which date she was hospitalized. During this hospitalization she underwent a spinal fusion operation. After the operation she stayed at home convalescing for approximately seven months and was paid workmen’s compensation at the rate of $35.00 per week for 35 weeks beginning a few weeks before the operation. Thus, she was paid a total of 46 weeks workmen’s compensation prior to the trial of this case.

The jury was first informed that appellant had undergone an operation when her attorney interjected this information in his voir dire examination of the jury panel. Both appellant and her treating physician, Dr. Villa, testified on direct examination that she had undergone the operation. By means of cross-examination of both appellant and appellant’s doctor, appellee introduced evidence to show that appellant’s back condition was not caused by the fall of June 1, 1964. In addition, appellee’s physician, Dr. Elliott, presented evidence to the effect that the back operation had essentially cured appellant’s back problem. Appellant made no objection as to any evidence of the operation on her back, the beneficial effects thereof, or the amount of her disability. The charge that went to the jury did not ask whether or not the disability of the appellant was limited to her foot, but was, in fact, a general injury charge.

At the beginning of the trial and before the voir dire examination of the jury panel, appellant presented a motion in limine requesting that the appellee be instructed not to present evidence or comment upon the possible beneficial effects of the spinal fusion operation on the ground that the appel-lee had not complied with the requirements of Article 8306, Sec. 12e, V.A.T.S., in that appellee had not made an unqualified confession of liability in this case. The trial court overruled this motion in limine. Toward the close of appellant’s case and prior to the production of Dr. Elliott, who testified for appellee, appellant presented a second motion in limine requesting that ap-pellee be instructed not to present evidence or comment upon the possible beneficial effects of the operation, or in the alternative, that appellee be required to unequivocably admit liability for the injury to appellant’s back. The trial court also overruled this second motion.

Appellant brings four points of error. The first two urge that the trial court erred in admitting evidence to show the beneficial effects of the spinal fusion operation, in the absence of an admission by the appellee that it was liable for workmen’s compensation benefits with regard to the specific disabling condition which made necessary the operation. The third and fourth urge that the trial court erred in overruling appellant’s motions in limine.

Under Section 12e of Article 8306 of the Workmen’s Compensation Act, an insurance company must admit liability and tender an operation to the employee while the matter is still pending before the Board before it can prove the possible beneficial effects of surgery, not performed. Truck Ins. Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521; Hardware Mut. Cas. Co. v. Courtney, 363 S.W.2d 427 (Tex.Sup.Ct). Both of these cases present situations where the insurance companies failed to qualify under Section 12e of Article 8306 of the Workmen’s Compensation Act, thus precluding their right to offer evidence at trial of the beneficial effects of surgery, if it had been performed. In neither case had surgery actually been performed, however.

In the case at bar, however, surgery was performed. In the recent case of Houston Fire & Cas. Ins. Co. v. Dieter, 409 S.W.2d 838 (Sup.Ct.1966), Justice Steakley isolated a similar inquiry of the Supreme Court saying, “The one question presented for decision is whether Petitioner [the insurance company] who had not invoked the provisions of Section 12e of Article 8306, was entitled in the trial of the case to make proof of the possible beneficial effects of pre-trial surgery voluntarily undertaken by Respondent [the plaintiff] at the hands of his personal physician.”

The court continued, “* * * No case has been made known to us where evidence of the results of surgery has been held inadmissible, or where medical and lay witnesses have been required to exclude consideration thereof in testifying to the present incapacity of an injured employee, and in stating a prognosis for the future. Such a requirement of exclusion would necessarily restrict a witness in his testimony to less than the full and present facts. Cf. National Surety Corp. v. Bellah, 245 F.2d 936 (5th Cir.1957). Section 12e of Article 8306 does not evidence a legislative intent to thus withhold from the court or jury the actual facts at the time of trial concerning the then existing incapacity for work of an injured employee. The statute shows by its provisions to have been enacted for the purpose of establishing a procedure under which, in proper circumstances, an injured employee may be required to submit to curative surgical procedures or suffer a suspension of compensation payments. Its provisions are to be strictly enforced against the compensation carrier before an injured employee may be thus penalized. But beyond this there is nothing to evidence a legislative purpose to foreclose proof of the fact and results of surgery voluntarily assumed by the employee subsequent to the award of the Board and prior to trial of an appeal suit.”

The case at bar presents a similar situation wherein the beneficial effects of surgery, voluntarily undertaken, were admitted into evidence by the trial court. We are compelled to conclude that this action was correct in view of the holding of the Supreme Court in Dieter, supra. Points of error number one and two are overruled.

In appellant’s third and fourth points of error complaint is made of the trial court’s action in overruling plaintiff’s motion in limine that would have prohibited testimony relative to the beneficial effects of the spinal fusion operation. The record indicates that appellant failed to make any objection to the evidence concerning the effect of the surgery as it was presented to the trial court. In Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, the Supreme Court said, “If a motion in limine is overruled, a judgment will not be reversed unless the questions or evidence were in fact asked or offered. If they were in fact asked or offered, an objection made at that time is necessary to preserve the right to complain on appeal that such questions asked or such evidence tendered were so prejudicial that the mere asking or tendering should require a reversal.” Appellant here made no objection as to any evidence of the operation on her back or the beneficial effects thereof. It has been clearly resolved that a party must object to evidence as it is presented before a judgment will be reversed for overruling a motion in limine.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    Dan R. McCLELLAN, Jr., Appellant, v. Mrs. Nellene B. LEE et al., Appellees.
    No. 15272.
    Court of Civil Appeals of Texas. Houston (1st Dist.),
    March 28, 1968.

      Butler, Binion, Rice, Cook & Knapp, Tom M. Davis, Jr., Eugene Cook, Houston, for appellant.
    Helm, Jones & Pletcher, Michael Moriarty, Davis H. Burrow, Houston, for appel-lees.
   COLEMAN, Justice.

This is an appeal from the denial of appellant’s plea of privilege in an automobile collision case,

It is appellant’s contention that there is no evidence, or insufficient evidence, to sustain an implied finding of negligence so as to retain venue in the county of the accident under Subd. 9a, Article 1995, Vernon’s Ann.Civ.St.

Appellant is a resident of Gatesville, Cor-yell County, Texas. While he was in Houston, Harris County, Texas, he was driving his 1959 model Chevrolet automobile from his motel room to the airport to mail some letters when he ran out of gasoline. He knew when he started out that the car was low on gasoline, but he thought there was enough to make the trip. As he was proceeding down Long Drive in the City of Houston, his car began missing. He cut off the motor and coasted to a stop along the curb in front of a residence and partially in front of a driveway. He thought he was out of gas, but after stopping, attempted to start the motor without success. He was not sure that the car was only out of gas. Long Drive is a four-lane street with two lanes for traffic going east and two lanes for traffic headed west. Appellant was familiar with the street and saw a sign near where the car was parked stating: “Tow Away Zone. No Parking 7:00-9:00 AM. 4:00-6:00 P.M.” It was about five minutes to four o’clock p. m. when his car stopped. He walked to a garage and then to a filling station that had road service. When he got back to the scene in the service car, he saw his car being towed off, followed by a police car. He then went to a drug store where he called the police. At the time he left his car to seek assistance he did nothing to call attention to the fact that the car was disabled.

Mrs. Lee was driving down Long Drive at a speed of between 28 and 32 miles per hour, closely following another vehicle in the curb lane. When the lead vehicle suddenly pulled into the inside lane, she saw the parked vehicle for the first time. She was about two car lengths from it at that time. She thought it was moving at first. She could not pull into the inside lane because of other traffic. Her son Gary, a passenger, testified that he did not hear her brakes or notice it if she attempted to turn in any direction. He did not see the car pull out in front of them, or the parked car, because he was looking out the side window. Both Mrs. Lee and Gary suffered injuries. The accident occurred about 4:15 p.m.

A resident of the house in front of which the accident happened testified to seeing the car parked in front of one of her driveways close to the curb at about 3:55 p.m. She said that traffic was not heavy at the time. She saw the driver get out and walk away. She did not see the collision before the initial impact.

Appellees did not plead a city ordinance limiting parking on Long Drive and did not .attempt to introduce such an ordinance into evidence. Appellees pled generally that the injuries they suffered were proximately caused by the negligence of appellant. If there is evidence in the record to support an implied finding on the part of the trial court that appellant was guilty of negligence in any particular, which constituted a proximate cause of the collision, the judgment of the trial court must be affirmed.

In Rodgerson v. LaFollette, 424 S.W.2d 280 (Tex.Civ.App., Houston, 14th Dist., 1968), opinion by Chief Justice Tunks, the court held that although a person violates no law or ordinance in parking his car parallel to the curb on a city street in the daytime, he has a common law duty to warn other motorists that the car is parked, if an ordinary prudent person, in the exercise of ordinary care, would have anticipated and foreseen that, in the absence of such a warning, a collision might occur. The court then held that issues of fact as to negligence and proximate cause were raised by evidence that South Loop (U.S. 610) was a heavily traveled thoroughfare; that the lane in which defendant’s car was parked was ordinarily used by moving vehicles; that motorists could not be expected to anticipate that a car would be parked on the street because there were no residences or businesses in the area; that visibility was poor; that the street was wet and traffic heavy.

In this case visibility was good, the street was dry, and traffic light at the time of the accident. By reason of the posted signs appellant was on notice that the traveling public would not expect parked cars to be found on the street between 4:00 and 6:00 o’clock, and that the lane in which the car was parked would be used by moving vehicles. However, at the time the automobile was parked, because of the residences and business establishments in the immediate vicinity, motorists could be expected to be more alert in discovering the presence of parked vehicles, and might be expected to anticipate that there could be delay in removing cars parked prior to 4:00 o’clock.

In East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613 (1949), the court, after reciting the rule that fore-seeableness or anticipation of injury is a necessary element to proximate cause, stated that one leaving his truck parked on a public street in the nighttime with lights burning could not reasonably foresee that the driver of another automobile would run into the rear of the truck despite the fact that it had been snowing and sleeting shortly before the accident and was raining or misty at the time of the accident, the streets were wet, and the visibility poor.

The facts of this case do not raise an issue as to negligence on the part of appellant in parking his disabled automobile at the time and place it was parked, or in permitting the disabled car to remain there after four o’clock. An issue is raised as to negligence in failing to, in some manner, warn the traveling public that the car was disabled or parked. Appellant could reasonably foresee that he might not be able to remove the car before four o’clock. Since he saw the “Tow Away Zone” sign, he could foresee that motorists would expect to use the curb lane as a moving, rather than a parking, lane after four o’clock. He could also expect that traffic would be heavy, and could foresee that the necessity for changing lanes at the point where his car was parked might result in a collision. He could also foresee that in heavy traffic the ability of following drivers to see his parked automobile would be impaired, increasing the likelihood of accidents.

It is well settled that the two elements or tests of proximate cause are causation and the limitation to foreseeable consequences. If the defendant’s act or omission was a substantial factor in bringing about the collision, causation is established. For the defendant’s failure to warn to be regarded as a proximate cause of the plaintiffs’ injuries, it is not necessary that the defendant should or would reasonably anticipate the very consequences or the exact nature of the plaintiffs’ injuries or the precise manner of their infliction. “It is sufficient that the defendant would reasonably have anticipated consequences or an injury of the general nature of that which ensued.” Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951).

The evidence is sufficient to support the implied finding of the trial court that the failure of the defendant to warn approaching motorists that his car was parked constituted negligence, which was a proximate cause of the collision made the basis of this suit and of the resulting injuries to the plaintiffs.

The judgment of the Trial Court is affirmed.


author: MOORE, Justice.

text:
    George E. HUTCHERSON, Appellant, v. Edward C. CRONIN et al., Appellees.
    No. 327.
    Court of Civil Appeals of Texas. Tyler.
    March 28, 1968.
    Rehearing Denied April 18, 1968.

      Oldham & Lorance, Beatty Oldham, Houston, for appellant.
    John B. McDonald, Palestine, for appel-lees.
   MOORE, Justice.

This is a trespass to try title suit. Plaintiffs, Edward C. Cronin et al., alleged that on April 18, 1965, they were the owners of three city lots situated in Palestine, Anderson County, Texas, and that on said date defendant, George E. Hutcherson, unlawfully dispossessed them and continues to withhold possession from them. Their prayer was for title and possession and for rent at the rate of $200.00 per month. Defendant, Hutcherson, answered with a plea of not guilty and a cross-action. By his cross-action, defendant alleged that on April 18, 1962, he entered into a lease-purchase contract with plaintiffs agreeing to lease the property in question for a period of one year; that under the terms of the contract, he was granted two one-year options to extend the same for the additional two years, together with an option to purchase the said lots. He alleged that he took possession of the lots and made valuable improvements thereon and subsequently exercised his option to purchase in accordance with the contract but that plaintiffs refused to deliver him a deed. His prayer was for specific performance of the contract to sell as provided for in the lease-purchase agreement.

Trial was before the court, without a jury. The court rendered judgment in favor of plaintiffs for title and possession and for rent in the amount of $200.00 per month. Defendant’s motion for new trial was overruled and thereafter he duly perfected this appeal.

We affirm the judgment of the trial court.

The record shows, without dispute, that on April 18, 1962, plaintiffs and defendant entered into a lease-purchase contract by the terms of which the plaintiffs leased to defendant the property in question for a period of one year commencing on the 18th day of April, 1962, and ending on the 17th day of April, 1963. The contract also contained the following provision:

“The Lessee is hereby given the option of extending this lease for two one year periods, the first year to begin April 18, 1963, to April 17, 1964, and the second year to begin on April 18, 1964, and end on April 17, 1965. Said option may be exercised by the giving of written notice to the Lessors at 4405 Dowling Street, Houston, Texas, on or before March 18, 1963, and on or before March 18, 1964, in the event option for both years is exercised.
“In addition to the option given the additional option of purchasing the above property for FIFTEEN THOUSAND AND NO/100 DOLLARS ($15,000.00) on or before April 18, 1963, and all rent paid under this lease agreement will be applied as a credit to the Lessee toward such purchase price. Said option must be exercised by the giving of written notice to the Lessors at 4405 Dowling Street, Houston, Texas, by a letter postmarked on or before midnight, April 18, 1963.”

At the request of the defendant, the trial court filed the following findings of fact and conclusions of law, to-wit:

“FINDINGS OF FACT:
“1. That Plaintiffs and Defendant entered into a written contract whereby Plaintiff leased to defendant the property described in' Plaintiffs’ Original Petition in this suit.
“2. That said lease was prepared by an attorney employed by William L. Cronin, on behalf of plaintiffs, and paid by them.
“3. That the lease was for 1 year beginning April 18, 1962 with an option of extending the lease for two one year periods by giving written notice to lessor on or before March 18, 1963 and March 18, 1964.
“4. That on March 8, 1963, defendant sent a letter to the address specified in the contract stating T wish to exercise my option to extend the lease agreement for another year. This will cover the period from April 18, 1963, to April 17, 1964.’
“5. That the lease contained the following provision: ‘In addition to the option given the additional option of purchasing the above property for Fifteen Thousand and No/100 Dollars ($15,000.00) on or before April 18, 1963, and all rent paid under this lease agreement will be applied as a credit to the Lessee toward such purchase price. Said option must be exercised by the giving of written notice to the Lessors at 4405 Dowling Street, Houston, Texas, by a letter postmarked on or before midnight April 18, 1963.’
“6. That on April 18, 1963, the defendant sent a letter to the address specified in the contract stating: ‘This letter is notification that I will continue leasing the three lots here in Palestine for the period from April 18, 1964 through April 17, 1965. Also, I wish to exercise my option to purchase the lots at the end of the lease, April 17, 1965, at which time I will have paid a total of $5,550 toward the purchase price. I will pay the balance of $9,450 in cash, or I will give you a note, whichever is satisfactory to you and the other Lessors.’
“7. That upon receipt of the letter containing the statement above, Mrs. Virginia Lawson, one of the plaintiffs and on behalf of the other plaintiffs, wrote a letter to defendant stating that defendant’s proposals regarding the option to purchase were unacceptable.
“8. That defendant thereafter made no other proposals or communication with plaintiffs regarding the purchasing of the property until April 15, 1965; at which time his attorney by letter demanded that a deed conveying the property to defendant be made by plaintiffs, and that defendant was ready to make payment of $9,450.00.
“CONCLUSIONS OF LAW:
“1. The court concludes that defendant herein failed to exercise his option under the terms of the lease-purchase agreement in the following respects:
“(a) Defendant stated in his letter of April 18, 1963, T wish to exercise my option to purchase the lots at the end of the lease, April 17, 1965,’ whereas the lease agreement provided, ‘ * * * the additional option of purchasing the above property * * * on or before April 18, 1963.’
“(b) That the right to purchase on or before April 17, 1963 did not include the right of an option to purchase on April 17, 1965.
“2. The court finds that the defendant failed to tender in any form the difference between rent paid under the lease and the agreed purchase price of $15,000.00 at the time or at a reasonable time after the writing of the letter on April 18, 1963. The lease provided that rent paid before purchase would be credited to the purchase price whereas only $1800.00 had been paid on April 18, 1963 and the difference between $15,000.00 and $1,800.00 is $13,200.00 which amount was never tendered.
“3. The court finds that the word purchase means to acquire title and ownership, and that a purchaser is one clothed with legal title; and that the option given in the lease herein provided for the purchase on or before April 17, 1963 and precluded the right to purchase at any time thereafter.
“4. The court concludes that judgment should be rendered for plaintiff.”

Appellant did not challenge any of the foregoing findings of fact as being without support in the evidence, nor did he except to any of such findings or request any additional findings.

By six points of error, appellant contends that the trial court erred in finding that he failed to exercise his option to purchase and in refusing to decree specific performance. He contends that by the terms of his letter dated April 18, 1963, he accepted appellees’ offer to sell and as a result, appellees became obigated to deliver him a deed of conveyance. Appellees, on the other hand, say that the letter was not sufficient to constitute an unequivocal and positive acceptance of the offer to sell so as to create a binding contract between the parties but, on the contrary, amounted to a rejection of the offer.

The acceptance of an option, to be effectual, must be unqualified, absolute, unconditional, unequivocal, unambiguous, positive, without reservation, and according to the terms or conditions of the option. Substantial compliance with the terms of the option is held not sufficient to constitute an acceptance; to be effectual, the acceptance must be identical with the offer, or, at least, there must be no substantial variation between them. An acceptance of an option must be such a compliance with the conditions as to bind both parties, and if it fails to do so, it binds neither. In the absence of anything in the option contract providing otherwise, an acceptance meeting the foregoing requirements is a sufficient exercise of the option. On the other hand, a purported acceptance containing a new demand, proposal, new conditions, or modification of the terms of the option is no acceptance, but amounts to a rejection of it. 91 C.J.S. Vendor and Purchaser § 10, p. 853; Godfrey v. Central State Bank (Tex.Civ.App.), 5 S.W.2d 529; Lambert v. Taylor Telephone Cooperative (Tex.Civ.App.), 276 S.W.2d 929; Summers v. Mills, 21 Tex. 77; Vratis v. Baxter (Tex.Civ.App.), 315 S.W.2d 331, 337.

The right of option must be exercised or, as it is frequently stated, the option must be accepted strictly in accordance with its terms in order that an option may ripen into a contract of sale, entitling the optionee to a conveyance and obligating him to perform the contract on his part. Ordinarily, an option becomes a binding contract when it is properly accepted; the acceptance or exercise adds to the agreement the mutuality that is otherwise lacking. 58 Tex.Jur.2d, Vendor and Purchaser, Sec. 67, pages 270-272.

The primary question which we are called upon to determine is whether or not appellant’s purported letter of acceptance, dated April 18, 1963, was sufficient to constitute an unqualified, absolute, unconditional, positive acceptance of the option according to the terms thereof. We are of the opinion that it did not.

Under the terms of the option, appellees agreed to sell to the appellant the lots in question' on or before April 18, 1963, for the sum of $15,000.00, provided appellant accepted their offer on or before the option expired on said date. While it is without dispute that appellant properly posted a letter to appellees on April 18, 1963, within the time prescribed by the contract, the ultimate issue is whether or not the contents of such letter can be construed as an acceptance of the offer. The pertinent part of the letter relative to the option is as follows:

“I wish to exercise my option to purchase the lots at the end of the lease, April 17,1965. * * * ”

The contract granted appellant the right to purchase on or before April 18, 1963. It is obvious, we think, that a mere expression of willingness to purchase the lots on April 17, 1965, cannot be construed as an unconditional acceptance of the offer to sell on or before April 18, 1963. As we view the contents of appellant’s letter, appellant expressed no desire whatever to purchase the property at that particular time, but said only that he would be willing to purchase the property on April 17, 1965, provided appellees would agree to credit him with all the rent which he had paid during the full three-year period of the lease. We fail to find anything in the lease-purchase agreement which could, in any way, be construed to extend the option throughout the term of the lease. We fail to see how the letter could, in any manner, be construed as an unequivocal acceptance of the offer sufficient to bind both appellant and appellees upon a contract of sale as of April 18, 1963. Certainly it did not bind appellant upon the contract as of that date or at any time prior to the expiration of the option. Thus, the purported acceptance did not bind both parties; hence, neither party was bound. As we view it, appellant’s purported letter of acceptance amounted to nothing more than a counter-proposal whereby appellant offered to purchase the lots upon the expiration of the lease. Since appellant did not agree to purchase the lots in accordance with the option within the time limit prescribed, the element of mutual assent was lacking and, as a consequence, the offer of sale never ripened into a contract within the time limits as prescribed by the option. As we view it, the contents of appellant’s letter cannot be construed as an acceptance of the offer, but on the contrary, amounted to a rejection of it.

Since appellant did not accept the offer within the period of time prescribed by the option the question of whether or not the contract was subject to the construction that all rents paid by appellant under the lease would be applied as a credit upon the purchase price becomes immaterial. Had the appellant properly exercised his option, an interpretation of such provisions might have been a legitimate subject of judicial inquiry, but since he did not, any discussion of such subject would be purely academic and unnecessary.

The judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    Madge BUTLER, Appellant, v. Jackson HAYNES, Appellee.
    No. 6953.
    Court of Civil Appeals of Texas. Beaumont.
    March 7, 1968.

      Adams & Browne, Beaumont, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   STEPHENSON, Justice.

This is an action for damages arising out of an automobile collision. Trial was by jury, and judgment was rendered by the court upon the issues that plaintiff take nothing. The parties will be referred to here as they were in the trial court.

The jury found the defendant failed to keep a proper lookout, and failed to yield the right-of-way, and negligence and proximate cause. The jury also found that plaintiff failed to keep a proper lookout, failed to yield the right-of-way, negligence and proximate cause. The jury found the collision was not the result of an unavoidable accident and that plaintiff was damaged in the amount of $5,575.00 plus $1,000.00 medical expense and $800.00 damage to an automobile.

The primary point of error in this case is one of jury misconduct by the discussion of insurance. The evidence heard on motion for new trial established beyond question that this misconduct occurred and that it was material. The sole question for this court to determine is whether or not “it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.” Rule 327 Texas Rules of Civil Procedure.

The law is clear in this State that we cannot consider the testimony by the jurors that they considered whether or not defendant had insurance, and also that the consideration of insurance affected their verdict. It is never permissible for a juror to preserve or destroy his verdict by testifying to the mental processes by which he reached his verdict. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462.

Two jurors testified on the motion for new trial. Mrs. Wright testified: While the jury was deliberating, the question as to whether defendant had insurance came up. Two jurors, Mr. Nelson and Mr. Carr, said they didn’t think the defendant had insurance and if they gave plaintiff any money, defendant would have to pay it personally. Mr. Carr didn’t feel plaintiff should get any money because he didn’t want defendant to have to pay it personally. Mr. Carr didn’t feel plaintiff should get any money because he didn’t want defendant’ to have to pay it personally. It was discussed that if defendant had no insurance, she would be having to pay a dead man’s debts. (Jackson Haynes, the driver of one of the automobiles, died after the suit was filed, and his wife and estate were substituted as defendants.)

The other juror to testify was W. D. Sis-trunk, the foreman, who gave the following testimony: While the jury was discussing its verdict they talked about whether defendant would have to pay any judgment personally or whether or not she was covered by insurance. That if there wasn’t any insurance, Mrs. Haynes would have to pay a dead man’s debt. He was asked this question and gave this answer:

Q. As the foreman, did you make any attempt to guide the jury along the lines that the case was supposed to be decided on its merits and not whether or not there was insurance?
A. Yes, sir, I did, for the first day and a half of the next day. I certainly did. I said “We are not supposed to talk about that”, but along in the afternoon, the last day there, well, it just seemed useless, so I just went along.

We have concluded this evidence does not make it reasonably appear that injury probably resulted to the complaining party. There is no indication in the record as to when the discussion as to insurance took place. There is no showing that any juror voted one way on any issue and then following the discussion about insurance, changed his or her vote. The answers by the jury to the issues indicate they were not actually influenced by the mention of insurance. This jury found the defendant to be guilty of two’ acts of negligence which proximately caused the collision in question. In the normal course of things, if this jury had been influenced by the suggestion that defendant might not have insurance, they would have found that plaintiff suffered no damages, and would not have answered the damage issues as above stated.

The findings by the jury that plaintiff was guilty of two acts of contributory negligence prevent her recovery. The record does not show when these issues were answered in reference to the discussion about insurance, and specifically, it does not show that a juror changed a vote on these vital issues after such discussion. These points of error are overruled.

Plaintiff has another point of error related to this jury misconduct. It is argued that the discussion of insurance by the jury violated the court’s oral and written instructions given pursuant to Rule 226a T.R.C.P. Paragraph 9 of the written instruction reads as follows:

Paragraph 9 “ * * * Do not consider, discuss, nor speculate whether or not any party is or is not protected in whole or in part by insurance of any kind unless evidence about insurance is admitted.”

It is plaintiff’s position that a party to a suit is entitled to a new trial, as a matter of law, upon proof of a violation of such written instruction, and that no proof of harm need be made. This contention is rejected. We hold that Rule 226a did not affect the requirements under Rule 327 T.R.C.P., and that the law in reference to proof of harm has not been charged.

Affirmed.


author: HUGHES, Justice.

text:
    GROENDYKE TRANSPORT, INC., et al., Appellants, v. RAILROAD COMMISSION of Texas et al., Appellees.
    No. 11582.
    Court of Civil Appeals of Texas. Austin.
    Feb. 28, 1968.
    Rehearing Denied March 27, 1968.
    Second Rehearing Denied April 17, 1968.
    McGinnis, Lochridge, Kilgore, Byfield, Hunter & Wilson, Joe M. Kilgore, Austin, Blanchard, Clifford, Gilkerson & Smith, Thomas F. Sedberry, Lubbock, for appellants.
    Crawford C. Martin, Atty. Gen., George M. Cowden, 1st Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., R. L. Lattimore, Thomas Mack, Douglas H. Chilton, Asst. Attys. Gen., Austin, White, McElroy & White, W. D. White, Jr., Phinney, Hallman, Pulley & Livingstone, Leroy Hallman, Dallas, James, Robinson, Felts & Starnes, Phillip Robinson, Austin, for appellees.
   HUGHES, Justice.

This suit is in the nature of an appeal under Art. 911b, Vernon’s Ann.Tex.Civ.St., and was brought by Groendyke Transport Co., Inc., and Hearin-Miller Transporters, Inc., appellants, against the Railroad Commission of Texas, Robertson Transport, Inc., Western Commercial Transport, Inc. and Smith Transit, Inc., appellees.

The purpose of appellants’ suit was to set aside orders and certificates issued by the Railroad Commission to the other appellees authorizing them as specialized motor carriers to transport certain commodities in Texas, and for temporary injunctions enjoining such carriers from operating under such orders and certificates pending trial.

Appellees filed a plea in abatement to appellants’ suit on the ground that appellants have no interest in the subject matter of the suit other than the interest of the general public and, hence, lack a justiciable interest required by law to attack or review such orders and certificates. This plea in abatement was sustained by the Trial Court and judgment was entered May 31, 1967, dismissing appellants’ suit.

Since appellees have questioned our jurisdiction in this case on the ground that appellants did not file the. record within the time prescribed, we will dispose of this question first.

On June 8, 1967, appellants filed a motion for new trial. This motion was not acted on by the Trial Court. The transcript and statement of facts were filed in this Court on September 21, 1967.

Appellees concede that if a motion for new trial was properly filed the appeal was timely.

Even though it may not have been necessary for appellants to file a motion for new trial in this case they had the privilege of filing one if they chose to do so and it was as effective to time appellate steps as a motion for new trial required to be filed in order to appeal. Park v. Essa Texas Corporation, 158 Tex. 269, 311 S.W.2d 228. We find nothing in Alamo Express, Inc. v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815, cited by appellees to sustain their contention, inconsistent with Park v. Essa. We have jurisdiction of this appeal.

Sec. 20, Art. 911b, V.T.C.S., under which appellants filed their suit in the nature of appeal from certain orders of the Commission provides, in part:

“Sec. 20. If any motor carrier or other party at interest be dissatisfied with any decision, rate, charge, rule, order, act, or regulation adopted by the Commission, such dissatisfied person, association, corporation, or party after failing to get relief from the Commission may file a petition setting forth the particular objection to such decision, rate, charge, rule, order, act or regulations, or to either or all of them in the District Court in Travis County, Texas, against said Commission as defendant.”

Rule 30 of the Rules of Procedure and Practice before the Railroad Commission of Texas, Motor Transportation Division, adopted by the Commission, provides:

“Rule 30: WHO MAY APPEAR: Any party at interest in a proceeding may appear in such proceeding. Any party at interest is any motor carrier operating over a route within the territory or serving any point proposed to be served by any applicant, and transporting any of the same class or classes of commodities proposed to be transported by applicant.”

With respect to Rule 30, the Commission says in part:

“ * * * pursuant to its consistent practice under Rule 30 the Commission in accordance with what it deems to be its statutory mandate under Section 5a(d) (Art. 911b) has recognized as parties at interest in specialized motor carrier application proceedings only those ‘existing’ carriers then ‘serving’ the involved territory and with respect to which the statute requires a successful applicant to present substantial evidence, and requires the Commission to make detailed fact findings, showing inadequacy of such ‘existing’ carrier services and facilities. If, as appellants now contend, the statute or Constitution were construed to require the Commission to recognize as an ‘interested party’ any existing ‘motor carrier’ even though not authorized to perform and not performing any public service at issue in the particular proceeding, the orderliness of the Commission’s formal hearing procedures and the effectiveness of its administration of certificate application proceedings under Motor Carrier Act would be subject to complete frustration.”

Appellants, appellees and other specialized motor carriers filed applications with the Commission on the same day for authority to transport essentially the same commodities in the same areas.

Hearing on appellees’ applications were set for August 16, 1965, prior to the date set for hearing the applications of appellants and other applicants. The applications of appellees were consolidated by Commission Examiner, William P. Dan-forth, for hearing on the date set. At such hearing appearances were made by appellants and other carriers, however the Examiner ruled that unless any of such carriers, including appellants, could show that they held specific authority to transport any of the commodities named in the applications before him, they could not actively participate in the hearing. When none of such protesting carriers could show that they held any such authority, the hearing was conducted on an uncontested basis to the exclusion of appellants and other protesting carriers. The applications of appellees were granted in July 1966, and it is the orders granting such applications which appellees sought to set aside by their suit in the court below.

This record shows that appellants requested the Commission to consolidate, for hearing, all applications, theirs, appellees and other carriers, for similar authority, which request was denied. This record also reflects that after hearing appellees’ applications a hearing was held on appellants’ applications in September and October 1965, and in September 1966 the application of Groendyke was granted and the application of Hearin-Miller was denied because of the grant of authority to Groendyke and to two other carriers not parties to this suit.

The evidence is undisputed that appellants and appellees are all specialized motor carriers holding authority to transport certain commodities and classes of commodities to and from all points in Texas in intrastate commerce. Appellants and appellees hold certificates of necessity and convenience to transport many of the same commodities and are competitors for business located throughout the State. Further, the evidence indicates that for some time specialized motor carriers having the authority to transport petroleum or petroleum products have actually engaged in the transportation of fertilizers and fertilizer solutions as petroleum products and that the Commission has been aware of this construction of the certificates and has taken no action to abate this practice.

We quote the following from appellants’ brief:

“Because Appellants and Appellees were competitors in the transportation of many commodities covered by their certificates prior to any of the amendments involved in this litigation, they are interested parties in any order by the Commission which gives a competitive advantage to Appellees in attracting business of the various shippers throughout this state. For example, prior to the Commission’s issuance of the orders in question, Appellants and Appellees competed for the business of shippers of fertilizers and fertilizer solutions on the basis of identical authority. By virtue of the present orders, Appellees now have the competitive advantage of offering a complete service in the shipment of fertilizers regardless of the chemical origin. It is obvious that a shipper will be more likely to call a specialized motor carrier with broad authority rather than make a determination as to the exact nature of the commodity he wishes to ship. Thus, a fertilizer manufacturer may well decide to call Robertson instead of Groen-dyke since he is aware that Groendyke may transport only commodities which are ‘petroleum products’ whereas Robertson has the broader authority. Thus, the Appellees have gained a competitive advantage by virtue of the Commission’s illegal order.”

Appellant’s first point of error is that they are motor carriers or other parties at interest under Sec. 20 of Art. 911b and have a statutory right to maintain this suit.

In 2 Am.Jur.2d, Administrative Law, Sec. 559, it is stated:

“Where judicial review of administrative action is provided in the statute under which the administrative action is taken, the right of appeal to the courts is to be determined by looking at the statute, the valid regulations promulgated pursuant to it, and proven administrative practice throwing light upon their meaning.”

The Commission is given the express authority “ * * * to prescribe all rules and regulations necessary for the government of motor carriers * * * ” Sec. 4, Art. 911b.

Rule 30 has been in effect in substantially the same form since 1946 and has consistently been enforced to disallow appearances by protesting specialized motor carriers who held no permanent certificated authority to perform any of the services proposed to be performed by an applicant.

We believe that this rule, sustained by long and uninterrupted practice of the Commission, is a valid rule and a reasonable administrative interpretation of Sec. 20 of Art. 911b giving the right of appeal to “any motor carrier or other party at interest.” We cannot agree with appellants that Rule 30 is not related to Sec. 20 and pertains only to the right to appear. It would be indeed strange to hold that one could appeal from the result of a proceeding in which he had no right to appear.

In Mansfield Journal Co. v. Federal Communications Commission, 84 U.S.App.D.C. 341, 173 F.2d 646, in discussing the phrase “person aggrieved or whose interests are adversely affected” held that where there were three FM channels available for a particular city, the grant as to one channel did not give one of the other applicants the right of appeal, the court saying:

“The appellant contends it will suffer economic injury because under the order Richland, Inc., becomes the only FM broadcaster in Mansfield and ‘will receive all of the commercial advantages accruing to the Station which first brings to its listeners this new and improved type of aural broadcasting.’ It relies upon Federal Communications Commission v. Sanders Brothers Radio Station, 1940, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869, 1037, as holding that a person who would suffer economic injury has an appealable interest under § 402(b) (2) of the Communications Act of 1934. As we read the Sanders case the Court held that economic loss to an existing station, without more, is not a valid reason for refusing a license to a new applicant, but that the existing station in such circumstances has the requisite standing to appeal and to raise any relevant question of law in respect of the order of the Commission. It is our view that to apply the Sanders case to the situation here would unduly extend it; for this appellant is not the owner of an existing station and does not hold a construction permit. It is merely an applicant for such a permit, which it may never obtain.
In these circumstances to hold that the appellant may appeal from the Richland, Inc., grant would amount to a holding that whenever two or more applications, not mutually exclusive, for similiar licenses in one locality are pending before the Commission, they must be acted on simultaneously so that no applicant may gain advantage by beginning operations before another. We are not prepared to announce such a ruling.
It follows from what has been said that the status of the Mansfield Journal Company is not such as to permit it to maintain this appeal.”

There is no showing here that the grant of authority to appellees precludes the possibility of a grant of authority to appellants. In fact, this record discloses that authority has been granted by the Commission to one of appellants, Groendyke. Thus it appears that when the Commission granted the authority sought to appellees there was, at least in the mind of the Commission, economic reason for granting similar authority to one of the other applicants, including appellant Groendyke.

It is obvious that if all carriers and all competing applicants for authority to perform services as carriers are considered to be parties at interest, the burden cast upon the Commission would be greatly increased.

Appellants cite City of San Antonio v. Texas Water Commission, 407 S.W.2d 752, (Tex.1966), State Banking Board v. McCulloch, Tex.Civ.App., 316 S.W.2d 259, writ ref., n. r. e., and Farb v. State Banking Board, Tex.Civ.App., 343 S.W.2d 508, writ ref., n. r. e., both by this Court, as sustaining their right of appeal.

In San Antonio the Court held that the City was both a “person affected” and a “party aggrieved” so as to give it a justiciable interest necessary for an appeal from an order of the Commission granting the application of Guadalupe-Bianco River Authority for water from the same source the City sought water, the Court saying:

“The Commission consolidated both applications for public hearing because GBRA and San Antonio were opposing each other’s application and to a large degree the same considerations were applicable to both applications and a determination of the issues presented could only be made after a balancing of the benefits and detriments expected to result from granting or denying either or both applications. Obviously, the Commission’s order granting GBRA’s application to the extent of 50,000 acre-feet was based on a determination by the Commission that the benefits in granting San Antonio’s application did not outweigh the detrimental results of diverting water out of the Guadalupe River watershed.”

We do not consider this case in point. The Water Commission there was charged with the responsibility of weighing the two applications under statutory directions to determine their respective merits. Each had a bearing on the other. Without simultaneous consideration of both applications this duty could not be discharged. Furthermore, there was no rule of the Water Commission there involved similar to Rule 30 now before us.

In the Farb and McCulloch cases, no question of justiciable interest was raised.

In McCulloch there were two applicants for a bank to be located in the same neighborhood. It was conceded that the volume of business would justify one bank. The Board granted one application and denied the other and an appeal to the courts was taken by the latter applicant from such order. Clearly he had the right to appeal from the order denying his application. This case would also fall under the rule of mutual exclusion in that the granting of one application foreclosed the grant of the other.

In Farb it “[was] agreed that two banks in the area are not justified.” This case therefore clearly falls under the rule of mutual exclusion validating the right of appeal.

We conclude that under the facts of this case appellants had no standing to appeal from the orders and certificates of the Commission authorizing appellees to perform the services as carriers described therein.

Appellants’ second point is that the Trial Court erred in dismissing their suit because as competing applicants for similar authority they were entitled to a comparative hearing and consideration of their applications along with the applications of ap-pellees. In effect, this point complains of the Commission’s action in not holding a joint hearing to consider all of the applications for similar service authority.

In Alamo Express, Inc. v. Union City Transfer, 158 Tex. 324, 309 S.W.2d 815, the Court stated at page 821 :

“An administrative agency has the sole discretion to determine whether or not it will consolidate into one hearing applications pending before it involving the same commodities, routes, parties, etc.”

Should we concede that this language yields to the holding in Ashbacker Radio Corp. v. Federal Communications Commission, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945) that two applications for broadcasting permits for the same territory should be given concurrent consideration, it being found that the grant of one application would, because of interference, physically exclude the grant of the other, such decision would not apply here for the reason that it is not shown or found that the granting of appellees’ applications physically or economically precludes the grant of appellants’ applications. We overrule point 2.

Appellants’ last point is that the Trial Court erred in excluding testimony or evidence, offered at the trial, showing harm to them as a result of the granting of ap-pellees’ applications by the Commission.

The testimony offered and excluded follows: On Bill of Exception, witness H. L. Rice testified that Steere Tank Lines and appellee Western-Commercial competed daily in West Texas, calling on the same shippers and to a great extent serving the same shippers; that for some time prior to the issuance of appellees’ orders, Steere Tank Lines had been transporting fertilizer solutions for Phillips Petroleum, but that after Western-Commercial obtained authority to transport fertilizer and fertilizer blends specifically, Steere had lost freight revenues to Western-Commercial; that prior to the grant of expanded authority to appellees, all carriers were transporting these fertilizer solutions as petroleum products, but that since appellees have acquired authority to transport fertilizer solutions specifically, appellees will use this fact to contend that fertilizer solutions which all the carriers had previously been hauling as petroleum products can now be hauled only by carriers with the broader authority.

By the witnesses H. L. Rice and J. R. Evans, appellants also attempted to prove that the failure of the Commission to consolidate all the applications and the holding of a separate hearing in which appellants were not allowed to participate prejudiced appellants in the presentation of their applications at the later hearing. Mr. Rice, on Bill of Exceptions, testified that because the Commission held the hearing on appellees’ applications a month prior to the hearing on appellants’ application, Steere Tank Lines was unable to get some of its shipper witnesses to come back for appellants’ later hearing; that many public witnesses who would have been available to support the application had it been heard at the time of appellees’ hearing, could not return for appellants’ hearing since this would require a second trip for the witnesses after the Commission split the hearings. Also, Mr. Evans testified that two public witnesses who had previously expressed their interest in supporting Hearing-Miller’s application testified in support of appellees’ application at the hearing in which appellants were not permitted to participate. Hearin-Miller was denied the right to cross-examine such witnesses, and the witnesses did not appear in the later hearing on Hearin-Miller’s application.

Appellants sought to prove through an expert witness that certain commodities found by the Commission to be non-petroleum products in the orders under attack are in fact petroleum products which appellants are authorized to transport.

On Bill of Exception appellants’ witness, Robert L. Greene, testified that nitrogen fertilizer solutions are derived from and are basically petroleum products and that there “is no nitric acid made in Texas other than that which comes from petroleum” and it is a petroleum product. Mr. Greene further testified that the finding by the Commission contained in appellees’ orders that nitric acid is not a petroleum product is erroneous.

Since we have held that appellants have no standing to appeal from the orders of the Commission granting appellees’ certificates of authority, it follows that the order of the Trial Court sustaining ap-pellees’ plea in abatement and dismissing appellants’ suit was proper, from which holding it is an ensuing conclusion that such proffered testimony was, as the Trial Court held, immaterial and inadmissible.

Finding no error, we affirm the judgment of the Trial Court.

Affirmed.

ON MOTION FOR REHEARING

Appellants have forcefully argued that this case is controlled by the established principle that competing similar applications should be given a joint comparative hearing when because of economic or physical reasons all applications cannot be granted. Supporting this argument, appellants direct our attention to Cause No. 11,593, on the docket of this Court wherein appellees herein and others make the contention that the authority granted Groen-dyke, as described herein, was improperly granted because the previously granted authority to appellees destroyed any public necessity for the grant of additional authority.

It is a sufficient answer to this argument that Cause No. 11,593, has not been determined by us.

We wish to point out, however, that this issue of the necessity of a comparative hearing before the Commission on the basis that the applications before the Commission for identical service were mutually exclusive was never presented to the Commission. We have carefully read the motions to consolidate filed by appellants before the Commission and we do not find that they are grounded on this theory. Neither do we find that when the Examiner denied appellants the right to participate in the hearing on appellees’ applications that this theory was advanced or such contention made.

We agree with the Court in Delta Air Lines v. Civil Aeronautics Board, 97 U.S.App.D.C. 46, 228 F.2d 17, that when a nonfrivolous allegation of mutual exclusivity of applications is before the Commission, that the Commission should decide this issue and, if sustained, grant a full joint and comparative hearing as therein defined.

We do not believe that error can be predicated on appeal on this issue of mutual exclusivity of applications when the issue was not presented to the Commission.

The Motion is overruled.

      . Steere Tank Lines, Inc., was a plaintiff in the Trial Court but has not appealed to this Court.

      . Groendyke has an appeal pending in this Court, our Cause No. 11,593, from a trial court judgment invalidating this grant of authority to it.


author: PEDEN, Justice.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Estelle N. GODWIN, Appellee.
    No. 15110.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    March 28, 1968.
    Ronald C. Kline, Houston, Bracewell & Patterson, Houston, of counsel, for appellant.
    Raymond L. McDermott, Mabel Grey Howell, Houston, for appellee.
   PEDEN, Justice.

This is a workmen’s compensation insurance case. On a jury verdict, judgment was rendered in favor of Mrs. Godwin for total and permanent disability and for recovery of certain medical expenses. Her back was injured while she was working for Sears, Roebuck and Cc. on April 29, 1963, but her claim for compensation was not filed with the Industrial Accident Board until October 26, 1964, almost eighteen months after the accident.

According to Mrs. Godwin’s testimony, her back injury occurred while she was bending over and turning a bolt of cloth. She reported her injury to her supervisor and to a Mrs. Genevay in Sears’ personnel office, who told her to go back to work but to use hot pads that night and to come back the next day. Next morning Mrs. Genevay sent her to a Dr. Friedman who had given her a pre-employment physical examination in 1961. He treated her while she was off from her work for three weeks.

The claimant testified that she received claim forms from the Industrial Accident Board about a month after she was injured. She stated that she went to Mrs. Genevay and said she needed some information to fill those papers out but that Mrs. Genevay told her: “Estelle, you don’t have to fill those out. Everything has been filled out and taken care of sufficiently, and you don’t have to worry.” Mrs. Godwin added that Mrs. Genevay said she had filled them out and sent them in herself for Sears, Roebuck. The claimant testified that she had relied on Mrs. Genevay’s statement. Claimant completed the seventh grade in school.

During the months that followed, she was treated by several doctors, and they prescribed a number of medications and treatments for her. She kept her job with Sears. She missed work from time to time, and her fellow employees helped her lift anything heavy. Sears’ personnel manager testified that he approved for payment drug bills for appellee in May, 1963 and medical bills in March of 1964 and May of 1964.

Appellee testified that she continued to go to a chiropractor for treatments and that it was late in October, 1964 when payment of her chiropractor’s bill was refused by the personnel department at Sears. She then hired a lawyer who filed her claim of injury.

Appellant’s first twelve points of error concern appellee’s showing as to good cause for her delay of more than six months in filing her claim, as provided by Article 8307, Sec. 4a, Vernon’s Ann.Civ.St.

In response to special issues bearing the numbers indicated, the jury found, in substance, as follows:

13. From April 29, 1963 until the latter part of October 1964, the appellee believed appellant would pay expenses incurred in the treatment of her injury.

14. Such belief was a cause of appellee’s failure to file her claim until October 26, 1964.

15. In not filing her claim until October 26, 1964, in reliance on appellant’s continuing to pay such treatment expenses, ap-pellee prosecuted her claim with ordinary care.

A second set of issues was also submitted relating to the question of good cause for the delay in filing. To summarize the jury’s findings:

16. About a month after April 29, 1963, Mrs. Genevay told appellee that Sears, Roebuck had already filed the necessary claim papers with the Industrial Accident Board.

17. Appellee believed and relied on such statement of Mrs. Genevay.

18. Such belief and reliance was a cause of appellee’s failure to file her claim until October 26, 1964.

19. In so delaying the filing of her claim in reliance on Mrs. Genevay’s statement, appellee prosecuted her claim with ordinary care.

Appellant’s first four points of error are based on its assertion that as a matter of law the appellee’s delay of almost eighteen months in filing her claim of injury was too long; the points are directed to the overruling of appellant’s motions when presented on summary judgment, at the close of claimant’s evidence, at the close of all evidence and after verdict. We have examined the record at each of such stages of the proceedings in the trial court, and we overrule these points.

Whether a claimant has prosecuted his claim with that degree of diligence that would have been exercised by a person of ordinary prudence in the exercise of ordinary care is usually a question of fact to be decided by the trier of facts. It may be determined against the claimant as a matter of law only when the evidence, construed most favorably for the claimant, admits no other reasonable conclusion. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (Tex.Sup.1948).

The jury was entitled to consider the claimant’s testimony 1) that Mrs. Gen-evay told her the claim had been filed, and 2) that her first indication that Sears would no longer pay her medical bills was received in late October, 1964. It is our view that the first of these events, when viewed in the light of the other evidence as outlined in this opinion, is sufficient to raise a fact issue as to “good cause”, and that such fact issue persisted until the second event occurred. A doctor who was called as a witness by the insurance carrier testified that Mrs. Godwin told him on February 26, 1964, that Sears wouldn’t pay the bills of her chiropractor, but the jury apparently accepted her testimony on this point. We find nothing else in the evidence which would give her such notice of the termination of benefits under the Act as to make her delay in filing negligent as a matter of law. Continental Casualty Company v. Abercrombie, 413 S.W.2d 409 (Tyler Civ.App.1967, writ ref., n. r. e.); Green v. Texas Employers’ Insurance Asspciation, 339 S.W.2d 368 (Texarkana Civ.App.1960, writ ref., n. r. e.).

Appellant’s fifth point of error asserts that there was no evidence to support the submission of special issues 16 through 19.

We hold that the testimony as outlined above constitutes evidence of probative force and thus supports the submission-of such issues. Gibbs v. Texas Employers’ Insurance Association, 378 S.W.2d 349 (Eastland Civ.App.1964, writ ref., n. r. e.).

Appellant’s thirteenth and fourteenth points aver that the claimant’s testimony as to what Mrs. Genevay said about her having filed the claim constitutes hearsay. These points were raised by timely objections in the trial court to the testimony in question.

Appellee contends that her recitations as to what Mrs. Genevay said are admissible for the limited purpose of showing good cause for the delay in filing her claim.

We overrule appellant’s thirteenth and fourteenth points. In McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442 (1941), the rule is quoted from Jones on Evidence, Civil Cases, 3rd Edition, Sec. 330: Where the question is whether a party has acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence, and not hearsay.’ ”

On the same “good cause” point involved in the instant case, the rule as stated in Mc-Afee v. Travis Gas Corporation, supra, was applied in Texas Employers’ Insurance Association v. McDonald, 238 S.W.2d 817 (Austin Civ.App.1951, writ ref.). The court held that it was not necessary to discuss the proof of agency, because “the inquiry before the jury was: Did appellee exercise ordinary prudence in filing his claim for compensation? This inquiry involved what appellee did, and on what information (whether it was true or false) he acted.”

We have read the entire record of this case. We hold that the jury’s answers to the issues whereby it found appellee’s disability to be total and permanent are not against the great weight and preponderance of the evidence. We have examined each of appellant’s points of error; our rulings as here noted make it unnecessary to rule on those not specifically noticed.

The judgment of the Trial Court is affirmed.


text:
    The AETNA CASUALTY & SURETY COMPANY, Appellant, v. Mrs. LaVivian CALHOUN et al., Appellees.
    No. 6955.
    Court of Civil Appeals of Texas. Beaumont.
    March 28, 1968.
    Rehearing Denied April 17, 1968.
    King, Sharfstein & Rienstra, Beaumont, Tex., for appellant.
    Alto Watson, Beaumont, Tex., for appel-lee.
   STEPHENSON, Justice.

This is an action for death benefits brought under the Workmen’s Compensation Act. Judgment was for plaintiff upon the finding made by the jury. The parties will be referred to here as they were in the trial court.

Plaintiff’s petition contained the following allegations:

“Herbert E. Calhoun died on the 6th day of August, 1963. The immediate cause of his death was an acute coronary occlusion. This acute coronary occlusion arose out of his employment and the work he was doing for his employer from incidents directly traceable as to time, place and cause beginning some three weeks prior to his death, when he was taking welding tests overhead and suffered physical strain on such occasion, resulting in the origin of the said coronary occlusion and subsequent strains, finally resulting in his death.”

Defendant answered with a general denial and the following:

“For further answer herein, defendant says that the death of Herbert E. Calhoun was solely and alone caused by natural conditions, diseases or other injuries of his body in nowise caused or aggravated by any occurrence suffered by said deceased while he was working for E. I. duPont de Nem-ours & Company.”

The jury found: That Herbert Calhoun underwent stress and exertion between July 22 and August 5, 1963. That he sustained some injury to his body as a natural result of such stress and exertion. That such injury was sustained in the course of his employment. That such injury was a producing cause of his death. That he did not suffer from the disease of arteriosclerosis or hardening of the arteries.

The most serious points of error involved in this appeal are that there was no evidence and insufficient evidence to support the findings of the jury that Herbert Calhoun sustained a personal injury in the course of his employment. We consider only the evidence favorable to this finding by the jury in passing upon this “no-evidence” point.

The charge of the trial court defined the term “injury sustained in the course of employment” as set forth in Article 8309, Sec. 1, Vernon’s Ann.Civ.St., except it added the words “whether internal or external.” The term “injury” or “personal injury” was given by the court in its charge as set out in Article 8306 Sec. 20, V.A.C.S., except the following was added: “or the incitement, acceleration and aggravation of any disease or condition previously existing by reason of any damage or harm to the physical structure of the body.”

The law in the State of Texas applicable to the factual situation in the present case is now well-settled. In Midwestern Insurance Company v. Wagner, Tex.Civ.App., 370 S.W.2d 779, it is written:

“A heart attack caused by such a strain or overexertion is an accidental injury to the physical structure of the body within the meaning of the workman’s compensation law. Proof thereof, occurring in the course of employment, is sufficient to show a causal connection between injury and an employee’s death resulting from such a heart attack.”

Also see, Texas Employers’ Ins. Ass’n v. Talmadge, Tex.Civ.App., 256 S.W.2d 945, as follows:

“If the appellant is contending under this point that death or injury to a workman caused by overexertion and strain while working on his job is not an accidental injury, the argument is overruled. Since the decision in the Carter case, Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581, it has been well established that an accidental injury in the course of employment is shown by the evidence that the injury or death occurred while the employee was at work and was caused by strenuous physical exertion.”

The fact that this incident covered a period of some fifteen days, see the case of Aetna Casualty & Surety Company v. Scruggs, Tex.Civ.App., 413 S.W.2d 416:

“In its brief and oral argument, appellant took the position that in order to recover, appellee must prove that his heart attack .occurred while he was at work on the afternoon of February 26. Appellant contends that under the evidence the coronary occlusion did not take place until just before appellee entered the hospital on the evening of February 27. However, it is actually immaterial when the heart attack, or coronary occlusion, happened if the evidence is sufficient to raise a fact issue that an accidental injury occurred on February 26 while he was within the course of his employment which triggered or set in motion a series of events which were the producing cause of appellee’s ultimate disability. That a strain or exertion is an accidental injury within the meaning of the Workmen’s Compensation Law of Texas is not open for dispute.”

It was stipulated that Herbert Calhoun was given a physical examination by a company doctor before going to work for the employer involved in this case. Such examination was made June 10, 1963 and the report was admitted in evidence. The medical evidence in reference to such report was as follows: That there was no evidence of heart disease. That the blood pressure was normal at 120/78 which indicated no hypertensive cardiovascular disease. That the examination of the eyes revealed no arterio-sclerotic changes in the vessels of the eyes and no changes due to hypertensive disease. That the report showed a perfectly healthy man with none of the ordinary things that precipitate heart attacks. It was also stipulated that Herbert Calhoun took the welding test involved here July 22, 1963, and that he died August 6, 1963 and the cause of his death was coronary occlusion.

The witness, Paul Gomer, testified: He had been working on the same job with Herbert Calhoun at the time of his death, both being employed as millwrights. He had been a millwright for 41 years and was familiar with that type of work. He had lunch with Herbert Calhoun the day Calhoun took the welding test in issue. He knew what an overhead welding test was. A lot of good welders failed a welding test at times. A welding test is nerve-racking. If you are not used to welding, an overhead welding test especially will get on your nerves and get on them bad. There is some mental stress involved in taking a test. When welding overhead, you are going to become physically nervous. There is physical exertion involved. When Herbert Calhoun came back from the welding test at the noon hour, he was wet with sweat. Calhoun looked bad, he looked all pale and his eyes looked bad. Calhoun asked Gomer for a Rolaid and said “I’m a burning up with heartburn.” Calhoun did not eat lunch and complained of pains in his chest. Calhoun held his hand over his left chest and said “I’m burning up inside right there.” Calhoun had 30 minutes off for lunch and went back to finish the welding test. Calhoun had not dried off when the 30 minutes were over. Gomer and Calhoun worked together in the basement the day before Calhoun’s death. They were installing conveyors. Conveyors are so heavy that sometimes it took six men to handle them. It would take four to six men to get them in the basement. Two men couldn’t handle them in the basement, but they did shove them around. This was manual labor, you had to move them by hand. The day before his death, Calhoun complained about having heartburn so bad he could hardly breathe. They had lunch together that day.

The witness, Buford Calhoun, testified: He was Herbert Calhoun’s son, and had worked with his father from the time they began this job, June 10, 1963, until his death. They worked together as a team the biggest part of the time. His father was in good health when they started on this job. They were working together the day his father took the welding test, but he did not see his father during the noon hour. He saw his father after the welding test was finished at about 2:00 or 2:30. His father was wet with sweat and nervous and said his chest was hurting. His father told him he was burning in the chest, that he had indigestion, heartburn and his left arm was hurting. His father told him he could hardly pick up his left arm. His father had never complained of pains in his chest or his left arm before that day. His father continued to complain of pain in his chest and left arm every day. They worked together on conveyors the day before his father’s death. The conveyors weighed from 250 to 600 pounds. They would line them up and set them in position. It was extremely hard work, about the hardest thing a millwright has to do. It is extreme exertion. His father got so weak one time he had to stop and rest, and complained he had a burning in his chest and said it was getting worse. He was white, weak, nervous and shaking. He got his father a cold drink while he was resting 10 or 15 minutes. They went together the next day to Newton to an unemployment hearing. At the hearing there was no excitement, it was just a discussion, and no one was nervous, excited or upset. During the conference his father became pale, broke out with a sweat and said “I’m burning up with indigestion, heartburn. I’m going to have to go sit by the window.” The hearing was cut short, and they, he and his father, walked down the stairs to the car and rode a block and a half to the doctor’s office. His father died in the doctor’s office.

The plaintiff testified: She was the widow of Herbert Calhoun. His health had been good during their 29 years of married life except for typhoid fever and a hernia operation. The state of his health was good when he went to work for this employer in 1963. He had never made complaints of burning in his chest or pain in his arm before July 22, 1963. When he came home from work the day he took the welding test, he complained of a burning sensation and pain in his chest and down his left arm, which he had never complained of before. He continued to complain of those pains until his death. When he came home from work the day before he died, he was pale and sick and did not eat supper. He was having trouble breathing.

George D. Haynes testified: He was the person who gave Herbert Calhoun the welding test on July 22, 1963. The test was taken in the pipe shop. There were three sets of test plates to be welded, one vertical, one horizontal and one overhead.

Dr. Bobby Mack Via testified: He did not know and had never treated Herbert Calhoun. In answer to a hypothetical question, in his opinion, Herbert Calhoun probably suffered damage or harm to his heart on July 22, 1963. Calhoun had what a layman would call a heart attack and he would call a myocardial ischemia. That means the blood vessel that supplies oxygen to the heart is cut off and the heart fibers die. It is a progressive disease process, which, in the doctor’s opinion, Calhoun suffered. It began on July 22, 1963, the day of the welding test. That people often have sweating, cold sweat and pallor due to the drop in the blood pressure and the pain. Continuing to do strenuous work aggravates the condition and makes it worse. Heavy work the day before death had something to do with his dying as it was a progressive process. Exertion and stress are producing causes of angina. His activities were the precipitating factor and a producing cause of his death. All of this evidence supported the findings of the jury that Herbert Calhoun sustained a personal injury in the course of his employment. The “no-evidence” point is overruled.

In passing upon the point of error that there is insufficient evidence to support such finding of the jury, we consider the entire record. There is much evidence, both lay and medical, contrary to such finding, but this evidence did no more than raise a question of fact for the jury to determine, which it did favorably to plaintiff. Such finding is not clearly wrong or manifestly unjust. The point of error is overruled.

We find the other points of error to be without merit and they are overruled.

Affirmed.


author: RENFRO, Justice.

text:
    Eddie CUNNINGHAM, Appellant, v. Harry PORTWOOD, Appellee.
    No. 16900.
    Court of Civil Appeals of Texas. Fort Worth.
    March 1, 1968.

      Heath & Robinson, and Bob Heath, Houston, for appellant.
    D. J. Brookreson, II, Seymour, for ap-pellee.
   OPINION

RENFRO, Justice.

This is a venue case.

Plaintiff sued defendants for damages in the sum of $17,822.16 for alleged conversion of 8,028 bushels of wheat.

Harry Portwood was plaintiff. Eddie Cunningham, of Harris County, Orville and Larry Cunningham, of Taylor County, were defendants. They were sued individually and as partners, doing business as Cunningham Brothers in Archer County, Texas.

Plea of privilege was filed by Eddie Cunningham, of Harris County.

The plea was controverted by plaintiff, who invoked Exception 9 of the general venue statute.

The trial court overruled defendant’s plea, hence this appeal.

It was alleged in plaintiff’s petition, which was made a part of the controverting affidavit “for all purposes,” that plaintiff delivered to defendants in May and June, 1965, 8,028 bushels of wheat which defendants agreed to store in Megargel; settlement sheets Nos. 782 and 781 were issued by defendants; defendants agreed that plaintiff would have the option of receiving back the wheat, or be paid for same at a specified price of four cents per bushel more than the day price when delivered; defendants, upon demand by plaintiff, refused to return the wheat; their conduct was willful and fraudulent; they refused to tell plaintiff when the wheat was removed from Megargel or where it went; such conduct amounts to conversion.

The defendant Eddie Cunningham has appealed on one general point of error, towit: “The trial court erred in overruling Appellant’s Plea of Privilege.”

The point is much too general and indefinite to require our consideration. Red Fish Boat Co. v. Jarvis Press, Inc., 361 S.W.2d 588 (Tex.Civ.App., 1962, no writ hist.); 4 Tex.Jur.2d, pp. 152 and 155, §§ 647 and 648. The point does not refer to a particular issue, or error, as contemplated by Rule 418, Texas Rules of Civil Procedure; Texas Employers Ins. Ass’n v. Hawkins, 369 S.W.2d 305 (Tex.Sup., 1963); Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956).

Defendant’s brief, however, reveals his main contention to be that the evidence, at best, shows only a cause of action on a breach of an oral contract. We therefore consider his contentions.

The settlement sheets dated June 10, 1965, showing the amount of wheat delivered by plaintiff to defendants and both on printed forms reading,

“Settlement Sheet “Cunningham Bros., Megargle Elevator,”

were introduced in evidence. The printed business name at the bottom of each sheet is indistinct in the transcript, but underneath such printed name appears, “By: Eddie Cunningham.” The signature is handwritten. We find no denial that it was Eddie Cunningham’s signature. The sheets show in writing the option agreement set out in plaintiff’s pleadings.

Plaintiff’s wife, who handled some of the transactions, testified: all the dealings were with Eddie Cunningham, the agreement was to the effect the grain was to be held in storage by defendants with option of plaintiff to redeem it any time he wanted it, that he could either redeem it, sell it to Mr. Cunningham or to somebody else. Plaintiff did not sell it in August. On September 10, witness talked to defendant. He indicated the wheat was still in storage, that the wheat would be in the elevator in Megargel any time plaintiff wanted it.

Megargel is situated in Archer County.

Plaintiff wanted to sell the wheat to A1 Kulik in November, but could not reach Cunningham. Plaintiff contacted Cunningham in December. He advised plaintiff to wait until March to sell. On December 23, plaintiff told Cunningham he wanted to redeem the wheat and sell to another man. Defendant said, “ ‘No, don’t do that. I will just send you a check for it.’ ” Plaintiff learned in January that defendant no longer had possession of the wheat. He never gave defendant permission to remove the wheat. Defendant would never tell plaintiff when or how he had disposed of the grain.

Defendant finally promised to pay for the wheat but plaintiff never received anything from the defendant but a check in the sum of $4,000, purchased by defendant on the Farmers Merchants State Bank and endorsed, “ ‘For Deposit Only to the Portwood Ranch Company.’ ”

Defendant offered no evidence.

Directly in point, and against defendant’s position, is Kroll v. Collins, 340 S.W.2d 838 (Tex.Civ.App., 1960, no writ hist.), where the court held: “Kroll did * * * prove venue in Frio County under Section 9, Article 1995. * * * the Krolls alleged that there was a conversion of the cattle in Frio County. The controverting affidavit, upon which the plea was heard, alleged conversion in Frio County. The case was tried upon the conversion allegations without protest from the defendants other than a claimed failure of proof. * * * Moreover, the conversion theory was tried by consent of the parties, without objection on trial, and without the point even being mentioned on appeal. * * * Upon the alternative plea of conversion the Krolls may retain venue in Frio County under Sec. 9, Article 1995. * * * Conversion of personal property is a trespass under Sec. 9. Bowers v. Bryant-Link Co., Tex.Com.App., 15 S.W.2d 598; Amberson v. Wilkerson, Tex.Civ.App., 285 S.W.2d 420; Parchman v. Parchman, Tex.Civ. App., 239 S.W.2d 902.”

Defendant also contends plaintiff sold and ratified the sale to' defendant by accepting the $4,000 check two months aft-ter the conversion. The mere receipt of the proceeds derived from an unauthorized sale of plaintiff’s property will not necessarily estop him from treating such act as a conversion. De Shazo v. Wool Growers Central Storage Co., 139 Tex. 143, 162 S.W.2d 401 (1942).

On a trial of the case on the merits defendant may prevail on the question of conversion, ratification, etc.

The hearing on the plea of privilege, however, is to determine whether the complaining defendant is suable on the transaction involved where the plaintiff filed the suit; the trial on the merits is to determine defendant’s liability on the transaction. Rotex Manufacturing Co. v. Little Dude Trailer Co., Inc., 416 S.W.2d 511 (Tex.Civ.App., 1967, no writ hist.).

The record is such that the trial court could find from a preponderance of the evidence that defendant converted plaintiff’s property to his own use in Archer County.

Judgment affirmed.


author: PRESLAR, Justice.

text:
    J. G. MONTOYA, Appellant, v. AMERICAN EMPLOYERS INSURANCE COMPANY, Appellee.
    No. 5937.
    Court of Civil Appeals of Texas. El Paso.
    March 27, 1968.
    Rehearing Denied April 17, 1968.
    Weldon S. Copeland, El Paso, for appellant.
    Hardie, Grambling, Sims & Galatzan, John A. Grambling, El Paso, for appellee.
   OPINION

PRESLAR, Justice.

This is a workman’s compensation case in which the jury found that plaintiff-appellant was totally disabled for a period of twenty-two weeks and suffered partial incapacity which was permanent. The court granted the defendant’s motion to disregard the jury’s finding that the partial incapacity was permanent, and its finding as to wage earning capacity during such disability. Judgment was entered for plaintiff for the twenty-two weeks of total disability, and this appeal taken by plaintiff as to the court’s action in disregarding the other findings. Also presented as error are two assignments as to exclusion of evidence, but the principal question is whether the court was correct in disregarding the jury’s finding that the partial disability was permanent.

When plaintiff announced that he rested his case, defendant also rested, so that the total of the testimony presented was from plaintiff and three others called by him.

The disregarded issue (No. 7) asked whether the partial disability was permanent or temporary. “Permanent” was defined for the jury as “refers to incapacity for work, whether total or partial, which will last throughout the life of the employee”. The jury found that plaintiff’s partial disability was permanent, and the basis of the defendant’s motion to disregard that finding was that there was no evidence to warrant the submission of the issue and no evidence to support the finding. We are of the opinion that the action of the trial court was correct.

Plaintiff told the jury how he was hurt— that he slipped on a piece of mortar or broken brick and fell back against a wall and sat down; that he experienced pain in his back, but continued to work for the remainder of the day because his boss was not available. There is much testimony as to continuing pain, but no description of the nature of the injury from which the jury could infer how long it would last. He testified that he could not sit for long periods because of pain, that he wore a back brace for some thirteen months, and that he had not noticed any improvement in the past year; that he had an operation some thirteen months after his injury. The jury was told nothing of the nature of the operation, its cause or effect (presumably it was for the injury); but the bare fact of an operation, alone, sheds no light on the question of duration of incapacity to work. The fact that plaintiff had not noticed any improvement in the past year would be of some help to the jury in trying to project into the future the length of his disability, but it amounts to a mere scintilla under the state of the record presented — e. g., the absence of pertinent facts establishing the condition from which he had not improved.

How long an incapacity to work will continue must be recognized as a difficult question for a jury of laymen to determine. As a general rule the question of the extent and duration of the disability resulting from an injury is one for the jury. Texas Employers’ Ins. Ass’n v. Scott, Tex. Civ.App., 233 S.W.2d 171, n. r. e.; Sonnier v. Texas Employers Insurance Association, Tex.Civ.App., 417 S.W.2d 433, n. w. h. And, as stated in Liberty Universal Insurance Company v. Gill, Tex.Civ.App., 401 S.W.2d 339, n. r. e.:

“There is no fixed rule of evidence by which a claimant is required to establish the fact that he has suffered an injury causing permanent, total disability. See Traders & General Ins. Co. v. Daniel, Tex.Civ.App., 131 S.W.2d 276, dism., judg. cor. As stated in Employers Reinsurance Corp. v. Jones, Tex.Civ.App., 195 S.W.2d 810, writ ref., n. r. e., ‘The duration and extent of disability resulting from injury is at best an estimate which must be determinedby a jury from all the pertinent facts before it.’ 63 Tex.Jur.2d p. 455, Sec. 429, and authorities cited.”

The jury may reasonably infer permanent disability from circumstantial evidence, and from the testimony of lay witnesses alone (as here), or where the lay evidence is contradicted by the testimony of medical experts. Travelers Insurance Company v. Wade, Tex.Civ.App., 373 S.W.2d 881, n. r. e. But the fact remains that there must be some pertinent facts bearing on an incapacity to work which will last throughout the life of the claimant. Otherwise, the situation becomes one of placing too great a burden and too much responsibility on the court or jury, and leaves the outcome' entirely too vulnerable to speculation, as found by this court in Travelers Insurance Co. v. Linder, Tex.Civ.App., 368 S.W.2d 797, n. r. e. That case, like the one before us, was based on no evidence on the issue of permanency of disability, and should not be construed as based on no “medical” evidence. Neither should it be construed as penalizing the claimant for his failure and that of his wife to testify that his “injuries” were permanent, for it is recognized that the general rule is that such testimony from a lay witness is not admissible over objection. Travelers Insurance Company v. Wade (supra) and authorities there cited.

It would serve no purpose to cite or enumerate the many cases in which the courts have held that there was, or was not, some or sufficient evidence on the issue in question, for each case must depend on its own facts reviewed under well-established rules. In deciding whether there is evidence in the record which supports the jury’s finding, it is a well-established rule that we must view the evidence in its most favorable light in support of the verdict. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957); Texas & Pacific Railway Company v. McCleery, 418 S.W.2d 494 (Tex.1967). We have reviewed the statement of facts in this case in the light of such rule and have concluded that there is no evidence to support the jury’s finding as to Issue No. 7, and that the trial court correctly disregarded it.

The other assignments of error present, no reversible error as to the action of the trial court, and each is overruled.

Judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    MAUPIN CONSTRUCTION COMPANY, Appellant, v. Martin SHIELDS et al., Appellees.
    No. 4691.
    Court of Civil Appeals of Texas. Waco.
    March 14, 1968.

      L. W. Anderson, Dallas, for appellant.
    Thomas B. Bartlett, Jr., Jack Welch, Marlin, for appellees.
   OPINION

WILSON, Justice.

Appellant’s plea of privilege was overruled in a hearing before the court under plaintiffs’ controverting plea alleging subdivisions 9, 9a, 14 and 23 of Article 1995, Vernon’s Ann.Civ.Stat. as exceptions to exclusive venue in the county of defendant’s residence.

Appellant urges reversal because plaintiffs alleged it was a corporation, whereas the proof showed it was a partnership. Appellant filed no verified denial that it was a corporation. Rule 86, Texas Rules of Civil Procedure, provides that a plea of privilege will not constitute a denial under oath of a plaintiff’s allegations required by Rule 93 to be denied under oath, as is the denial that defendant is incorporated. The point is overruled. Teague Brick Co. v. Leon O’Rear, Inc., Tex.Civ.App., 336 S.W.2d 310; Lone Star Brewing Company v. Jones, Tex.Civ.App., 278 S.W.2d 464; Houston Milling Co. v. Carlock, Tex.Civ.App., 183 S.W.2d 1013; Barber v. Port City State Bank, Tex.Civ.App., 269 S.W.2d 690.

Complaint is made that the court erred in its “conclusions of law” that venue was sustainable under subdivisions 9 and 9a of Art. 1995 because “the proper venue facts were not stated in the findings of fact.” The argument is that the findings were called “conclusions of law.” The contentions are untenable: (1) No request was made by defendant for additional findings; (2) The fact that actual findings of fact are called “conclusions”, as here, will not alter their status as findings. Durham v. Fort Worth Tent & Awning Co., Tex.Civ.App., 271 S.W.2d 181, 184, writ dism.; Shirey v. Albright, Tex.Civ.App., 404 S.W.2d 152, 157, writ ref. n. r. e.; (3) Venue is sustainable under subdivision 14 under the undisputed record.

It is not necessary to pass on other points.

Affirmed.