author: POPE, Justice.

text:
    Thomas D. SUMNERS et aL., Appellants, v. H. R. HOHENBERGER, Jr., et al., Appellees.
    No. 13874.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1962.
    Rehearing Denied April 25, 1962.
    Boyle, Wheeler, Gresham, Davis & Gregory, A. W. Worthy, San Antonio, for appellant.
    Clemens, Knight, Weiss & Spencer, Edward R. Finck, Jr., San Antonio, for appel-lee.
   POPE, Justice.

H. R. Hohenberger, Jr., and Honorbilt Homes, Inc., in a jury trial, recovered judgment for $58,400 actual damages against Realty Improvement Company, Inc., for breach of contract, and $10,000 punitive damages for a claimed independent tort, against Thomas D. Sumners and Realty Improvement Company, Inc. Defendants, on appeal, argue that the contract was void for uncertainty, that the contract was one which called for a future agreement, that the claimed damages were speculative, and that the jury answers about fraud, as a basis for punitive damages, do not support plaintiffs’ right to recover.

Hohenberger, on September 12, 1957, entered into contracts to buy two tracts of land. He planned to erect homes on the land and to sell them. After obtaining the contracts and before the closing dates provided in the contracts, he contacted Sum-ners. He showed Sumners the contracts and proposed that he finance the project. After investigation, Sumners agreed to do so. He then prepared a contract which the parties executed, and it is the basis of this suit. The contracts for the purchase of the lands were then closed. One grantor conveyed to Hohenberger, who in turn conveyed the property to Realty Improvement Company, Inc., the company through which Sumners did business. The other grantor, on instructions from Hohenberger, conveyed direct to Realty Improvement Company, Inc. Sumners and Hohenberger retained an architect and obtained plans for homes which would be built on the subdivision. The plans showed that the houses would be in the $10,000 price range. They dealt with and received from the F.H.A. a plat of the proposed subdivision. It showed a suggested plan for 195 lots. Defendants proceeded to develop the subdivision as their own in disregard of the plaintiffs and the contract.

The jury found all issues about the contract in favor of plaintiffs. The defendants urge that the contract is too uncertain and is therefore void as a matter of law. The contract is not void. All parties were experienced in the business, were familiar with the facts, and what was expected of each party to the contract. Sanderson v. Sanderson, Com.App., 130 Tex. 264, 109 S.W.2d 744. Hohenberger, the owner of two earnest money contracts, was to manage the development and Sumners was to provide the needed funds. They had done the same thing before. What Sumners and RICO proceeded to do after RICO had the title to the land, is what Hohenberger and Honorbilt Homes, Inc., would have done if defendants had not breached the contract. Similar contracts have been adjudicated. The contract was certain enough. Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340; Thompson v. Duncan, Tex.Com.App., 44 S.W.2d 904.

The point that the contract is void because it was a mere contract to make future agreements is based upon the phrase in the third paragraph, “as agreed upon between RICO and Honorbilt Homes, Inc.” As a matter of construction, the third paragraph sets forth how the profits would be divided, and it itemizes the things which would be counted as expenses. These matters were not dependent upon future agreements. The phrase is limited to the sales and advertising costs only. Damages under the contract were proved by adequate evidence.

The point that the damages are speculative assumes that the contract was void for uncertainty. The reasoning is that the contract failed, and there were no damages proved which would support a recovery upon quantum meruit. Since the contract did not fail by reason of uncertainty, there, of course, was no need for proof of damages under quantum meruit.

In our opinion, however, the court should not have allowed Hohenberger and Honorbilt Homes, Inc., recovery of $10,000 as punitive damages. Plaintiffs pleaded an independent tort as a basis for recovery of punitive damages. The jury found in favor of the plaintiffs that Sumners made a representation to plaintiffs, that the representation was false, that plaintiffs believed it was true, that it was a material inducement, and that plaintiffs relied upon it. However, the jury also found in answer to another issue, that plaintiffs would have entered into the contract in spite of the representation. Thus is presented the claim by defendants, appellants here, that the last stated issue defeats recovery of punitive damages based upon an independent tort. If plaintiffs had not requested that issue, the others would probably have supported a judgment. Hickman v. Cooper, Tex.Civ.App., 210 S.W.2d 858, 862. However, it was submitted and we can not ignore the answer, because it is more specific than the one about reliance generally. The jury found that the misrepresentation was not the thing which induced the contract. By their answer they say that plaintiffs relied upon the misrepresentation, but not very much, and they would have made the contract anyway. Under that finding, plaintiffs failed to prove the tort. Avery Co. of Texas v. Harrison Co., Tex.Com.App., 267 S.W. 254, 257; Graves v. Haynes, Tex.Com.App., 231 S.W. 383; Buchanan v Burnett, 102 Tex. 492, 119 S.W. 1141, 1142; Gainesville Nat. Bank v. Bamberger, 77 Tex. 48, 13 S.W. 959, 960; Walton v. Steffens, Tex.Civ.App., 170 S.W. 2d 534.

The judgment for punitive damages is therefore not supported by the findings. We reform the judgment and affirm the judgment for actual damages in the sum of $58,400. Costs are charged equally against the appellants and appellees.

On Motion for Rehearing.

Defendants Sumners and RICO urge that we should pass upon the trial court’s order striking their defensive pleading that the plaintiffs agreed to a termination of the contract. That defense is of importance, since it would, if found by the jury, be a complete defense. We have re-examined the history of the pleadings in an effort to determine whether, as ruled by the trial court, the defendants injected that defense into the case in violation of Rules 4 and 63, Texas Rules of Civil Procedure.

We find that long before the trial date, which was February 13, 1961, the defendants pleaded that plaintiffs had agreed upon a termination of the contract. They alleged in their first amended original answer which was filed on October 22, 1959: “Upon being so advised the said HOHENBERGER agreed definitely to such termination.” Our search of the record shows that certain exceptions were leveled at other allegations, but plaintiffs did not except to the quoted sentence. The exceptions were heard on February 3, 1961, and after the court’s orders were made, the defense of agreed termination was still standing in the defendants’ pleadings.

Defendants then amended to comply with such exceptions as had been sustained, and in repleading they repeated that defense which had not yet been attacked. They did this by filing their second amended original answer on February 6, 1961, with leave of the court. In this pleading they alleged: “Upon said notification plaintiff H. R. HO-HENBERGER, JR., agreed to the said termination of the contract.” On February 9, four days before trial, the plaintiffs filed their second supplemental petition in reply to the defendants’ second amended original answer. In that pleading the plaintiffs, for the first time, excepted to the defense of an agreed termination. For the first time they stated that such a pleading failed to allege consideration, and that the claimed oral contract of termination violated the statute of frauds. When faced with those exceptions, defendants at once amended to meet them. Their amendment was filed on the same day the exceptions were filed.

A trial court may exercise its discretion in permitting pleadings to be filed within seven days of trial. Close examination of these pleadings, however, shows that the defendants actually had pleaded that there was an agreed termination, and plaintiffs did not except to that pleading until four days before trial. It was the plaintiffs, therefore, and not the defendants who were late in filing their pleadings. Defendants had asserted the defense continuously since October 22, 1959, but were not called upon to meet the exceptions until February 9, 1961, and they met them by pleading more fully on that same date.

The court, therefore, heard the plaintiffs’ exceptions which were filed too late, but refused to permit defendants’ amendments which could not have been made earlier. “ * * * if the pleadings are still open for action on exceptions, they are equally open for amendments thereto.” Caperton v. Thorpe, Tex.Civ.App., 240 S.W.2d 329, 330; Andrews v. Austin Motor Truck Co., Tex.Civ.App., 259 S.W.2d 772. In other words, defendants had a defense properly pleaded until four days before trial. Then, for the first time, exceptions were leveled against the defense, and the defendants were denied the right to amend. In our opinion, it was the plaintiffs instead of the defendants who were late in filing their pleadings. The order striking the defendants’ amendment was in error. Because the defendants were deprived of a vital defense, we grant appellants’ motion for rehearing and remand the case for new trial.

      . “AGREEMENT: REALTY IMPROVEMENT COMPANY, INC., HONORBILT HOMES, INC., AND H. R. HOHEN-BERGBR, JR.
      This agreement is made between Realty Improvement Company, Inc. (RICO) and Honorbilt Homes, Inc., with Honorbilt Homes, Inc. obligations herein personally guaranteed by H. R. Hohenberger, Jr. In connection with the subdivision of approximately forty-five (45) acres of land under Earnest Money Contract from T. C. Vogt and L. W. Flinn, and the construction, financing and sales of homes to be constructed thereon, it is agreed as follows:
      1. Honorbilt Homes, Inc., through H. R. Hohenberger, Jr., will personally supervise all construction, financing and sales of homes and subdivision of the land.
      2. RICO will furnish equity capital to finance the project and all contracts and titles will be in the name of RICO as owner, contractor and builder.
      3. Profits from this project will be divided sixty percent (60%) to RICO and forty percent (40%) to Honorbilt Homes, Inc., after all expenses, including all direct costs, bookkeeping costs, an allowance of six percent (6%) or net invested capital except capital invested in water mains, and sales and advertising costs as agreed upon between RIOO and Honorbilt Homes, Inc. There shall not be charged into expenses of this project any depreciation, car expense, or any other indirect cost either by RICO or Honorbilt Homes, Inc.
      4. Light lines and gas mains shall be charged as expenses when paid for and treated as income when refunded.
      5. Expenditures for water mains shall be treated as expense when incurred. Water main refunds, when and if received, will not be considered divisible income.
      6. RICO will have the option, but not the obligation to take over rights under the Flinn Earnest Money Contract upon payment to Honorbilt Homes, Inc. or H. R. Hohenberger, Jr. of a sum equal to the amount of earnest money put up on this tract.
      7. All earnest money deposits, payments on contracts, etc., are to be turned over promptly to RICO for deposit.”


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    DUCC REALTY COMPANY, Inc., Appellant, v. A. V. COX et al., Appellees.
    No. 3998.
    Court of Civil Appeals of Texas. Waco.
    April 19, 1962.

      Hugh E. McGee, Jr., Allbritton, McGee & Hand, Houston, for appellant.
    Spafford, Ledbetter, Freeman, Hamlin & Gay, Warren Whitham, Dallas, for appel-lees.
   WILSON, Justice.

Appellant sued appellee to cancel a contract for sale of realty and for refund of earnest money deposit. Appellee, by cross-action, sought judgment for the deposit. In a non-jury trial appellee recovered, and a take-nothing judgment was rendered against appellant. Findings and conclusions were filed. We affirm.

Appellant is the subsidiary of a construction company which develops properties in many states for a national chain of clothing stores. Planning construction of a building conforming to uniform plans of the clothing concern, appellant entered into a contract with appellee for the purchase of realty for a site, under which it deposited the earnest money. Appellant prepared the agreement which contained a clause, standard in its contracts, authorizing it to make a survey including soil tests and borings, and providing that purchaser

“shall at or before the expiration of 15 days after receipt by it of the survey, which is to be prepared according to the instructions and requirements of the purchaser, notify the seller whether said soil tests and borings are satisfactory to permit the construction of the proposed building which the purchaser intends to build thereon. In the event the purchaser shall notify the seller that the same are unsatisfactory, then the purchaser shall be entitled to the return of its deposit hereunder and cancellation of this contract.”

It was provided that “All of the above conditions shall be deemed to be of the essence of this contract.”

Appellant furnished detailed instructions for the preparation of the survey to a firm of consulting engineers which delivered to appellant its survey report and findings. Thereafter, appellant gave notice to appel-lee it elected to cancel the contract of sale “by reason of unsatisfactory site conditions”, and demanded return of the earnest money.

The court found, in effect, that the soil on the tract was satisfactory to permit construction of the building intended, and that the tests and borings so showed. It concluded that appellant did not have the exclusive right under the quoted provision to determine whether “said soil tests and borings are satisfactory to permit construction” as provided therein, but that the issue as to whether these were “satisfactory” presented a question of fact; and the word “satisfactory” did “not mean satisfactory to the plaintiff”. Appellant challenges these findings and conclusions.

It is not necessary to determine these contentions. The judgment is sustainable on the further express finding of the trial court that appellant did not notify appellee that the soil tests and borings were unsatisfactory on or before 15 days after receipt by it of the survey. Appellant does not challenge this finding, but urges that the court erred in impliedly concluding that time was of the essence so as to require the notice to be given within the specified period.

The provision for notice, construed most favorably to appellant, constituted an option granted to or reserved by the purchaser to elect to disaffirm, cancel, revoke or terminate the contract, even if the clause reciting the notice provision shall be deemed of the essence be disregarded. “An option gives to the holder the choice and power of electing between alternatives. In option contracts time is nearly always of the essence. This would be so on either theory of an option. If we regard it as an offer, it is open for a time limited, and no offer can be accepted after its lapse. If we regard it as a conditional contract, it contains the express condition that notice shall be given at a specified time. Such an express condition should be enforced according to its terms.” Corbin, Readings on Contracts, Assoc.Amer.Law Schools, p. 244.

If an option contract requires notice of intention as to optionee’s exercise of the option, “failure to give such notice on time is fatal. Time is of the essence of an option.” And “Time is likewise of the essence of options to terminate or cancel an existing contract”. 3 Williston, Contracts (Rev. Ed.) Sec. 853, pp. 2391, 2393; and see Corbin, Contracts (1952) Secs. 713-724; Simpson, Contracts (1954) p. 452; 72 A.L.R.2d 1127; I Williston, Contracts (3rd Ed. 1957) Secs. 61A, 61B, 63; 10-A Tex. Jur. pps. 71, 464, 515; 13 Tex.Jur.2d Sec. 346, p. 621.

Appellant relies on decisions supporting the view that time is not of the essence in ordinary contracts to convey land. In Johnson v. Portwood, 89 Tex. 235, 34 S.W. 596, Chief Justice Gaines emphasized the distinction: “In an ordinary contract' for the conveyance of land, in which the purchase money is to be paid at a future day, time is not usually held to be of the essence of the contract. But, when the transaction is in the nature of a unilateral contract,— where a party is given an option to acquire a right by doing a certain thing within a specified time, — it is held that time is essential, and that in order to secure the .right he must comply within the specified period. This is settled law.”

The judgment is affirmed.


author: WILLIAMS, Justice.

text:
    TEXACO, INC., Petitioner, v. Faye McEWEN, Respondent.
    No. 15996.
    Court of Civil Appeals of Texas. Dallas.
    March 23, 1962.
    Rehearing Denied April 20, 1962.

      Thompson, Knight, Wright & Simmons, Pinkney Grissom and David S. Kidder, Dallas, for petitioner.
    Fanning, Billings, Harper, Pierce & Gilley, and Woodgate, Richards & McEl-haney, Dallas, for respondent.
   WILLIAMS, Justice.

This case reaches this Court by petition for Writ of Error filed by Texaco, Inc., against Faye McEwen, a feme sole, seeking to set aside a default judgment against petitioner. Arts. 2249, 2249a and 2255, Vernon’s Ann.Civ.St.

On September 20, 1960 Faye McEwen, sued three defendants, Warren A. Roach, d/b/a Bob Roach Texaco Service Station; Texaco, Inc.; and L. F. Corrigan. In her petition in the District Court she alleged that on February 19, 1960 she was caused to fall and injure herself while crossing a driveway of the Bob Roach Texaco Service Station in Dallas, Texas. She alleged that each of the named defendants were negligent and sought recovery, jointly and severally in the amount of $56,486.73. Her petition alleged that “plaintiff is a resident of Dallas County, Texas; defendant, Warren A. Roach can be served for process at the Bob Roach Texaco Service Station, 4700 block Lemmon Ave., Texaco, Inc. is a corporation licensed to do business in this State and can be served for process, through one of its agents, 3900 Singleton Blvd., Dallas, Texas; L. F. Corrigan can be served for process at the Corrigan Tower Building, Dallas, Texas.” The petition did not allege any legal relationship between the three named defendants.

Citation, with return thereon, was filed on September 23rd, 1960, the essential part of said return being as follows:

“Came to hand on the 20th day of Sept. 1960 at 11:39 o’clock A.M.
“Executed at Dallas, Texas, within the County of Dallas at - o’clock -- M on the day of -- 19-, by delivering to the within named Warren A. Roach, d/b/a Bob Roach Texaco Service Station, Texaco, Inc. by delivering to Warren A. Roach on September 20, A.D.1960 at 2:10 o’clock P.M., and L. F. Corrigan on September 22, A.D. 1960 at 2:25 o’clock P.M., defendants, each, in person, a true copy of this citation together with the accompanying copy of this petition, having first indorsed on same the date of delivery.”

The return was signed by M. M. Gossett, Deputy for Roby Love, Constable, Precinct No. 1, Dallas County, Texas. Thereafter answers were filed by Warren A. Roach, d/b/a Bob Roach Texaco Service Station and by L. F. Corrigan. On October 19, 1960 default judgment was entered against Texaco, Inc. in the sum of $30,000, plus cost, said judgment reciting that Texaco, Inc. “though duly served with process had failed to appear and therefore made default.” In the judgment of October 19, 1960 no disposition was made of the other two defendants. However, on November 22, 1960 Faye McEwen voluntarily non-suited Warren A. Roach, d/b/a Bob Roach Texaco Service Station and L. F. Corrigan. In January 1961 execution was issued and levy was attempted against Texaco, Inc. It was alleged that this was the first notice that Texaco, Inc. had that suit had been filed against it and that default judgment had been taken. Thereafter a motion to vacate said default judgment was filed in the 44th District Court of Dallas County, Texas. The trial court granted the motion and the default judgment was set aside by order dated January 20th, 1961.

Original application for Writ of Mandamus was then made by Faye McEwen in the Supreme Court of Texas in Cause styled: McEwen v. Harrison et al. The Supreme Court in its opinion, 345 S.W.2d 706, granted the Writ of Mandamus and ordered the trial court to vacate the order setting aside the default judgment. The Supreme Court, speaking through Chief Justice Calvert, pointed out that the only question passed upon was whether or not the trial court had the power to set aside a default judgment after the expiration of more than 30 days from its entry even when the record upon which default judgment was based reflected that the court did not have jurisdiction of the person of the defendant at the time it was entered. The Court said:

“We hold that appeal by writ of error or a bill of review to set aside the judgment are the exclusive methods by which Texaco may have the default judgment vacated or set aside. * * * Our judgment here is without prejudice to the rights of Texaco, Inc. to file an appeal by writ of error or to file a bill of review to set aside the default judgment against it.”

Pursuant to instructions of the Supreme Court an order was entered on May 4, 1961 by the District Court setting aside its prior order vacating the default judgment. Prior thereto, on April 28, 1961, petition for Writ of Error was perfected to this Court.

Petitioner directly attacks the default judgment rendered against it in three points of error, (1) because jurisdiction of the person of petitioner has not been obtained; (2) because the record shows that service of citation and petition were not had upon petitioner; and (3) because the record did not affirmatively reflect that service of citation and petition were had upon petitioner in accordance with the applicable statutes.

Before proceeding to a consideration of petitioner’s points of error it becomes necessary for us to consider and pass upon respondent s motion to dismiss the writ of error. The gravamen of respondent’s motion to dismiss is that the writ of error was not filed within 6 months of the judgment rendered on October 19, 1960. It is without dispute that petition for writ of error was filed within 6 months following November 22, 1960, the date of the order of non-suit of the two remaining defendants. We are unable to agree with respondent’s contention that petitioner has failed to meet the jurisdictional requirements concerning filing the writ of error within 6 months following final judgment. The applicable statute Art. 2255, V.A.C.S. provides: “The writ of error, in cases where the same is allowed, may be sued out at any time within six months after the final judgment is rendered.” The question, therefore, is whether the judgment of October 19, 1960, wherein a default judgment was rendered against Texaco, Inc. only, was a “final judgment” | within the meaning of this statute. The order of October 19, 1960 was not a “final judgment” which would have been appeal-able. It showed upon its face that it did not dispose of all of the parties to the action, namely, Roach and Corrigan. It was, therefore, an interlocutory order. Respondent, before the Supreme Court on application for writ of mandamus, admitted that the order of October 19,1960 was interlocutory, there saying: “On November 22, 1960, relator appeared and non-suited the two other defendants, Warren A. Roach, d/b/a Bob Roach Texaco Service Station and L. F. Corrigan, thereby disposing of all the parties and controversies before the Court and finalizing the interlocutory default judgment of October 19,1960." (Emphasis ours).

The rule is so familiar as to preclude the necessity of citation of authorities to the effect that a judgment is not final, so as to be subject to appellate review unless it disposes of all of the defendants in the case. 3 Tex.Jur.2d § 86, p. 350. Our Supreme Court in Foster v. Bourgeois, 113 Tex. 489, 259 S.W. 917, held that the term “final judgment” used in a prior statute regulating time to appeal and still used in statutes regulating time to sue out writ of error is the main judgment in the case that completely disposes of both parties and subject matter.

Any doubt which might remain concerning the finality of the judgment is set at rest by Chief Justice Calvert in the Mandamus proceedings before the Supreme Court in McEwen v. Harrison et al., 345 S.W.2d 706 wherein he says:

“Texaco failed to appear or answer, and on October 19, 1960 Judge Thornton, after hearing evidence as to the extent of relator’s injuries, rendered a default judgment against Texaco. * * On November 22, 1960 relator non-suited the other two defendants and the default judgment against Texaco thereupon became final." (Emphasis ours).

Respondent’s motion to dismiss is overruled.

We now turn to the consideration of petitioner’s points of error. Since petitioner’s mode of review is by way of Writ of Error, which constitutes a direct attack upon the default judgment against it, the decisive question presented is whether there is error apparent on the face of the record which would vitiate the trial court’s order. Milam County v. Robertson, 47 Tex. 222; Cruger v. McCracken, 87 Tex. 584, 30 S.W. 537; Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325; American Standard Life Ins. Co. v. Denwitty, Tex.Civ.App., 256 S.W.2d 864; Art. 2249a, V.A.C.S.; 3 Tex.Jur.2d Sec. 17, p. 287. The record here consists of more than the recitations contained in the default judgment concerning service. The question, then, is: What does the “face of the record” reveal? In her petition respondent named three parties defendant (1) L. F. Corrigan; (2) Warren A. Roach, d/b/a Bob Roach Texaco Service Station, 4700 Block Lemmon Ave.; and Texaco, Inc., a corporation licensed to do business in the State of Texas and who can “be served for process, through one of its agents, 3900 Singleton Blvd., Dallas, Texas.” Insofar .as Texaco, Inc., is concerned no definite officer or agent is named upon whom service may be had. Warren A. Roach is not alleged to have been an agent of Texaco, Inc. for any purpose, whether for service of process or otherwise. Roach and Texaco, Inc. are co-defendants and nothing else. While she sued three defendants, respondent’s attorney in a letter to the District Clerk, stated significantly: “Enclosed herewith are the original and two copies of our pleadings in the above entitled cause. Please file the original, issue citation, and forward same to Constable Roby Love’s office in order that service might be obtained upon the defendant. Please place your file mark on the extra copy and return same to this office.” (Emphasis ours).

The cost bill prepared by the District Clerk indicates only the original and “two copies” of the citation were prepared. The citation request from the respondent’s attorney gave no instructions concerning upon whom service might be had against Texaco, Inc. Since only two copies of the citation were issued by the Clerk it becomes apparent that the Deputy Constable delivered one copy of the citation to L. F. Corrigan and another copy to Warren A. Roach. According to the Constable’s return on the citation he served Texaco, Inc. by delivering to “Warren A. Roach” on September 20, A.D.1960, at 2:10 o’clock P.M. The default judgment recites that Texaco, Inc. was “duly served with process.” There is no controversy but that Texaco, Inc. did not appear or participate in the trial court proceedings either in person, by agent or attorney.

Art. 2031, V.A.C.S. (1948) provided for service: “in any suit against a foreign cor-poration” on the president, vice-president, secretary, treasurer, general manager or any local or traveling agent or traveling salesman. Art. 2031a, V.A.C.S. (1948) applies to a foreign corporation which shall •transact or do any business within this State, and requires such foreign corporation to designate a resident agent for service, and authorize service on the Secretary of State in the event such resident agent cannot be found. Considerable difficulty and confusion resulted from the provision of the statute authorizing service on “local or traveling agent or traveling salesman”, as evidenced by the adjudicated cases. In 195S the Legislature enacted what is known as the Business Corporation Act, Art. 8.10, V.A.T.S. thereof providing for service of process on foreign corporations. It is there provided that the president and all vice-presidents of the foreign corporation authorized to transact business in this State and the registered agent so appointed by the foreign corporation shall be agents of such corporations upon whom any process, notice, or demand required are permitted by law to be served upon the corporation may be served. It is further provided that when a foreign corporation shall fail to appoint or maintain a registered agent that service may be had upon the Secretary of State. These statutes provide for the only method of obtaining service or process upon a foreign corporation authorized to do business in this State. There is no alternative method for obtaining jurisdiction of the person of such a corporation in the courts of this State unless such corporation voluntarily appears or waives service or process. 14 Tex.Jur.2d § 484, p. 588.

It has long been the established law of this State that it is imperative and essential that the record affirmatively shows a strict compliance with the provided mode of service. Thus, in the early case of Roberts v. Stockslager, 4 Tex. 307, 308 (1849) Chief Justice Hemphill, in holding a default judgment invalid, said:

“The provisions of the statute as to the mode of service and the fullness of the return are as plain as they are imperative. They cannot be mistaken, and the courts should not permit them to be disregarded. They prescribe the mode by which the court acquires jurisdiction over the person of the defendant; and as this is necessary to give validity to its acts and judgments, the regulations on the subject should be strictly observed by the officers charged with the duty, and enforced by the tribunal before which the matters in controversy are to be determined.”

Chief Justice Fly, of the San Antonio Court of Civil Appeals, in Household Furniture Co. v. Alvarado, 246 S.W. 1111 (1923), reiterated the rule, stating that it has been the established law in Texas for over 70 years, and it has never been questioned or limited in any manner.

In Sharp & Dohme v. Waybourne, Tex.Civ.App., 74 S.W.2d 413, attempted service was had upon Sharp & Dohme by “delivering to P. L. Russell, its agent,” together with a certified copy of petition. Default judgment against the corporation in that case was vacated, the court holding that under the established authority the default judgment should be vacated and a new trial granted unless there was proof, independent of the allegations in the petition, the citation, and the statement in the sheriff’s return, to show service on some officer or agent of the company designated by the statute. The court held that whether the person served as local agent, was in fact such, must be affirmatively shown before default judgment would be proper.

See also National Cereal Co. v. Earnest, Tex.Civ.App., 87 S.W. 734; Holcomb & Hoke Mfg. Co. v. Amason, Tex.Civ.App., 2 S.W.2d 360; National Ben Franklin Fire Ins. Co. v. Scott, Tex.Civ.App., 214 S.W. 604; Miller v. First State Bank & Trust Co., Tex.Civ.App., 184 S.W. 614; Remington-Rand Business Service, Inc. v. Angelo Printing Co., Tex.Civ.App., 31 S.W.2d 1098 and Texas Pipe Line Co. v. Miller, Tex.Civ.App., 71 S.W.2d 348.

It is evident that the “face of the record” in this case does not affirmatively reveal that Texaco, Inc., a corporation authorized to do business in this State, was served with process in the plain and specific manner provided by either the old or new statute. The petition itself does not designate Warren A. Roach as agent or officer of the corporation. The instructions to the serving officer does not designate Roach as the proper person for service upon the corporation. The return of the serving officer merely indicates that he served Texaco, Inc. by serving someone named Roach. This obviously, is not sufficient to comply with the law relating to service and the default judgment based thereon cannot stand. Petitioner’s points are therefore sustained, and respondent’s crosspoints are-overruled.

The default judgment against petitioner is ordered vacated and set aside and the cause remanded to the trial court for trial on the merits.

Reversed and remanded.


author: DENTON, Chief Justice.

text:
    W. J. HOLMES v. Cecil CAGLE and James Cagle d/b/a Cagles.
    No. 7141.
    Court of Civil Appeals of Texas. Amarillo.
    April 16, 1962.
    Rehearing Denied May 7, 1962.

      Scarborough, Black & Tarpley, Abilene, Sam H. Allred, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellees.
   DENTON, Chief Justice.

This is an appeal from a judgment rendered upon an instructed verdict in favor of Cagles, defendant below. W. J. Holmes filed suit for personal injuries alleged to Tiave been sustained by him when a truck tire exploded when he was in the process of inflating it. After the close of all the testimony, the trial court sustained defendant’s motion for an instructed verdict. Appellant timely perfected this appeal and brings forward two points of error, both of which deal with the trial court’s action in instructing the verdict.

It is undisputed that Holmes was an independent contractor at the time he received the injuries on the Cagles’ premises. Holmes was in the process of mounting and inflating a truck tire when it exploded and caused the rim to strike him. The tire came from a distributor other than Cagles, and the company for whom the tire was being changed was not a customer of Cagles. Holmes was using some tire changing equipment which was being furnished by Cagles. They had an agreement whereby Holmes purchased new and re-capped tires from Cagles, a tire distributor, and then resold them to his own customers. It is undisputed that Holmes was a business invitee on the appellees’ premises.

It is Holmes’ contention that Cagles was negligent in failing to provide any type of safety device for use when mounting tires and tubes; in failing to warn plaintiff of the danger; and in furnishing the plaintiff a defective tire or tube. The defendants pleaded Holmes had had several years of experience in mounting automobile and truck tires; that he knew the dangers involved; and that Holmes voluntarily exposed himself to the danger that might exist and assumed the risk. The appellees also alleged Holmes was contributorially negligent in several respects.

The basic question to be decided concerns the liability of an occupier of property to his invitee; and this question is narrowed to the question of whether the property owner’s liability has been established as a matter of law. Much confusion has resulted from the decisions applying the various legal theories involving liability of an owner or occupier of land brought by invitees for injuries growing out of open and obvious dangers thereon. The Supreme Court has clarified the application of the legal theories involved under these fact situations in McKee General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391. In our opinion the principles laid down in the Patterson case are controlling in this case before us. Texas courts clearly recognize two legal theories, aside from the plaintiff’s own negligence, for denying liability in a suit against an owner or occupier of land brought by an invitee for injuries growing out of open and obvious dangers thereon. One of these theories is based on the principle that there is no breach of any duty the land owner owes to the invitee, and the other theory is one which arises out of the doctrine of volenti non fit injuria — voluntary assumption of risk — which constitutes a defense to acts of negligence. In cases of this nature it is necessary to first determine whether there was evidence to support a finding of a breach of duty by the defendant before deciding the question of voluntary assumption of risk.

As a general rule, it is the duty of the land owner to exercise ordinary care to keep the premises in a reasonably safe condition so that an invitee will not be injured. Carlisle v. J. Weingarten, 137 Tex. 220, 152 S.W.2d 1073 and Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. However, it is equally well established that the duty as expressed in the above general rule does not extend to those invitees who know or should know of the existence of the particular condition and who appreciate or should appreciate its dangers. McKee, General Contractor v. Patterson, supra; Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497; Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374. Under the fact situation before us we interpret the above qualification to mean that if Holmes, having a knowledge of the danger involved in changing and inflating the tire with the equipment at hand as furnished by Cagles, he exposes himself to this danger by thus using the equipment, there is no duty on the part of Cagles to protect him by the use of reasonable precautions to eliminate the hazard.

By Holmes’ own testimony he was aware of the hazard involved in changing and inflating the tire in question without the use of a safety device. Holmes testified on cross examination:

“Q And I believe in your deposition you said that you had even mentioned that, that somebody was going to get hurt, or might get hurt—
“A That’s right, I sure did.
“Q —before this occurred?
“A That’s right.
“Q And you knew that it was a dangerous operation?
“A Yes, sir.
“Q And you knew that before you changed the tire?
“A That’s right.
“Q And you knew that at all times before you started this operation of dismounting the wheels or putting on these other tires, is that correct, sir?
“A That’s correct.”
* * * * * *
“Q And you, knowing that danger, and realizing the danger, went ahead and did it, isn’t that correct?
“A I sure did.”

This testimony, together with the admitted experience of Holmes in this phase of the tire business, leads us to the inescapable conclusion that Holmes voluntarily exposed himself to the danger involved which he fully realized, and therefore it follows that Cagles breached no duty it owed to Holmes. As Plolmes failed as a matter of law to prove a breach of duty by Cagles, the trial court correctly instructed a verdict for the defendant below.

The judgment of the trial court is therefore affirmed.


author: DAVIS, Justice.

text:
    AMERICAN SURETY COMPANY OF NEW YORK, Appellant, v. Paul J. RUSHING, Appellee.
    No. 7366.
    Court of Civil Appeals of Texas. Texarkana.
    April 17, 1962.
    Rehearing Denied May 15, 1962.
    Vinson, Elkins, Weems & S earls, Houston, for appellant.
    Miller, McClure & Lucas, James H. Wright, Ralph K. Miller, Houston, for ap-pellee.
   DAVIS, Justice.

A workmen’s compensation case. Ap-pellee was injured on March 21, 1958. Appellant defended on the grounds that ap-pellee had suffered no injury and plead that the sole cause of any disability was due to an injury that appellee received in a fight at a tavern on or about June 25, 1958. In the alternative, appellant alleged that 95% of the appellee’s disability was caused by the fight.

The case was tried before a jury. The jury found in favor of the appellee; and, that 50% of appellee’s disability was caused by the fight. The jury further found that appellee’s disability was not solely caused by the fight.

Appellee filed a motion that the trial court disregard the jury’s finding that 50% of his disability was caused by the fight, and to enter a judgment. Appellant filed a motion that the trial court enter a judgment in favor of appellee for the sum of $5,425.00. The trial court granted the ap-pellee’s motion to disregard the jury findings that 50% of his disability was caused by the fight and entered a judgment in favor of appellee for $10,602.53. The appellant has perfected its appeal.

By its four points of error, appellant takes the position that the trial court erred in rendering judgment for the appellee because the judgment was not supported by the verdict of the jury, that the trial court should have sustained appellant’s motion for judgment limiting ap-pellee’s recovery to $5,425.00, and in disregarding the jury’s answers to the special issues. Appellant limits its discussions to the findings of the jury on all four points. The appellee takes the position that there is no evidence to support the jury’s finding that any injury to the appellee occurred as a result of the fight. Suffice it to say that there is evidence that the ap-pellee was in a fight, and that a man bit part of his ear off. But there is no evidence that the fight caused any injury whatever to the appellee’s back. Under the evidence in the case these issues should not have been submitted. Under the law in Texas, a subsequent injury must be the sole producing cause of the appellee’s disability. Texas Indemnity Ins. Co. v. Dean, Tex.Civ.App., 77 S.W.2d 748, err. dism. There are many cases that hold that where a subsequent injury is alleged, that such must be proved. Angelina Casualty Co. v. Holt, Tex.Civ.App., 351 S.W.2d 627; Texas Employers’ Insurance Ass’n v. Ham, Tex.Civ.App., 333 S.W.2d 438, w. r., n. r. e.; Jacoby v. Texas Employers’ Insurance Ass’n, Tex.Civ.App., 318 S.W.2d 921, w. r., n. r. e.; Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356; Scott v. Liberty Mutual Ins. Co., Tex.Civ.App., 204 S.W.2d 16, w. r., n. r. e.; Commercial Standard Ins. Co. v. Noack, Tex.Com.App., 62 S.W.2d 72, op. approved by the court; Texas Indemnity Ins. Co. v. Staggs et al., 134 Tex. 318, 134 S.W.2d 1026, op. appvd. by the ct.; United Employers Casualty Co. v. Curry, Tex.Civ.App., 152 S.W.2d 862, n. w. h.; Texas Employers’ Ins. Ass’n v. Upshaw, Tex.Civ.App., 329 S.W.2d 144.

There was some evidence that the fight could possibly have caused some damage to appellee’s back. In 32 C.J.S. Evidence § 1044, p. 1131 we find the following :

“ * * * An inference can be drawn only from the facts in evidence, and cannot be based on surmise, speculation, conjecture, or guess; it must be reasonably drawn from, and supported by, the facts on which it purports to rest, and must be made in accordance with correct and common modes of reasoning. An inference has been .required to be based on probabilities, and not on mere possibility or possibilities; but according to other authorities, probabilities, as distinguished from facts proved, will not support an inference. * * * ” (Emphasis added.)

The points of error are overruled. The judgment of the trial court'is. affirmed.


author: RICHARDS, Justice.

text:
    D. J. HENNESSY et al., Appellants, v. Ray R. MILLER, Appellee.
    No. 10954.
    Court of Civil Appeals of Texas. Austin.
    April 18, 1962.

      Will Wilson, Atty. Gen., Marvin Sen-tell, Asst. Atty. Gen., Ewell H. Muse, Jr., and Van Thompson, Jr., Austin, for appellants.
    Lanham & Hatchell, Austin, for appel-lee.
   RICHARDS, Justice.

Suit was brought by Ray R. Miller, ap-pellee, against D. J. Hennessy and the Railroad Commission of Texas, appellants, under the provisions of Sec. 20, Art. 911b, Vernon’s Civil Statutes, as an appeal from an order of the Railroad Commission entered May 9, 1961, approving the transfer of specialized motor carrier certificate No. 5103 from Miller to Hennessy upon the ground that the Commission was without jurisdiction to enter the order and seeking an injunction against Hennessy from operating under the certificate and the Railroad Commission from enforcing its order. The Trial Court issued a temporary restraining order as prayed for and on July 18, 1961 hearing was had upon the temporary injunction. During the course of the hearing by agreement of all parties the cause was tried on the merits upon plaintiff’s original petition and defendants’ original answers.

The only relief sought in appellee’s petition was that the Commission’s order of May 9, 1961 be declared null and void and set aside and that the Railroad Commission be temporarily enjoined from enforcing or attempting to enforce its order and that Hennessy be enjoined from operating under the specialized motor carrier certificate or under the order of the Commission.

After the hearing had been concluded Jlennessy filed a trial amendment in which the Court was requested to determine that a power of attorney from appellee to Hennessy dated May 15, 1959, hereinafter referred to, was an irrevocable power of attorney and that the Trial Court order specific performance of an alleged contract and agreement for the transfer of the specialized motor carrier certificate from ' appellee to Hennessy. Appellee filed a special exception to the trial amendment and moved the Court to deny permission to file such trial amendment upon the ground that Hennessy having filed an original answer containing special exceptions and a general denial with a prayer that appellee take nothing by his suit and the trial having proceeded upon the merits based upon the original pleadings the Trial Court should deny Hennessy leave to file such amendment tendered on July 19, 1961.

On July 28, 1961 the Trial Court entered judgment (1) denying the relief sought by Hennessy in his trial amendment, (2) overruling appellee’s special exception and motion to deny leave to file Hennessy’s trial amendment, (3) setting aside and cancelling' the order of the Commission dated May 9, 1961, (4) permanently enjoining the Commission from enforcing its order and permanently enjoining Hennessy from operating under the specialized motor carrier certificate or from operating under the Railroad Commission’s order, and (5) denying Hennessy all relief prayed for in his trial amendment, from which judgment the Commission and Hennessy have perfected this appeal.

Appellants urge the following points of error made by the Trial Court in the entry of its judgment which are: (1) that the power of attorney given to Hennessy by appellee was a general power which fully empowered him to effectuate the transfer of the specialized motor carrier certificate before the Commission (2) which being coupled with an interest in the certificate, was irrevocable; (3) that the question of the Railroad Commission’s lack of jurisdiction to determine contractual rights was immaterial since all parties to the contract were before the Trial Court which was competent to determine their respective rights; (4) that the power of attorney attached to Hennessy’s application amounted to substantial compliance with the requirements of the Commission’s General Order No. 12 and (5) that the suit brought by Hennessy against appellee for specific performance of the contract in the District Court of Harris County, Texas had been dismissed prior to the entry of the order of the Commission on May 9, 1961.

Prior to 1959 appellee was the owner of specialized motor carrier certificate No. 5103 issued by the Commission, conducting business under the certificate under the trade name of A and P Truck Line as sole owner and as majority stockholder in a corporation of the same name. During the Spring of 1959 appellee and Hennessy, together with one B. F. Cobb, conducted negotiations with reference to the sale of appellee’s certificate to a corporation to be formed by Plennessy and Cobb in which appellee was either to have a small amount of stock in the corporation, a working interest in the corporation, or to be employed by the corporation, the exact status of his future relations with the corporation being the subject of the controversy.

As a result of the negotiations appellee executed the following power of attorney to Hennessy:

“That I, Ray R. Miller, do hereby make, constitute and appoint D. J. ■ Hennessy my lawful attorney-in-fact, to act in my place and stead in the following capacity:
“To effect the full and complete transfer and assignment of that specialized motor carrier permit issued by the Railroad Commission of Texas, being Certificate No. 5103, and that certificate issued by the Interstate Commerce Commission of the United States, being No. MC2044, together with the transfer of -any other authority issued by the State of Louisiana, if any, appertaining to the operation of the aforedescribed authorities;
“To collect, negotiate, settle, hy-pothecate, or in anywise handle any and all funds that may come into the possession of A-l Heavy Haulers, Inc., by virtue of its operation of the aforementioned permits from and after the date hereof;
“To negotiate, settle and pay any and all indebtedness, estimated to be approximately $3,000.00, which are outstanding against me by virtue of the past possession of the aforementioned permits and authorities.
“I do hereby confirm any and all acts of my said attorney-in-fact as aforesaid, in the same manner and with the same authority as I could have done if acting in person. It is agreed and understood that this power of attorney is coupled with an interest this day assigned and conveyed to A-l HEAVY HAULERS, INC.
“WITNESS MY HAND this the 19th day of May, 1959.
“s/ Ray R. Miller
RAY R. MILLER”

which was acknowledged before a notary public. On August 6, 1959 appellee revoked the power of attorney to Hennessy stating that the revocation was because the contract entered into between appellee as stockholder of A and P Truck Line, Inc. and A-l Heavy Haulers, Inc. was never consummated.

During the month of June 1960, Hennessy filed suit in the District Court of Harris County, Texas against appellee for specific performance of a contract alleged to have been entered into between ap-pellee and Hennessy on May 19, 1959 for the sale and transfer of the specialized motor carrier certificate, together with a certificate issued by the Interstate Commerce Commission and other authority issued by the State of Louisiana, which suit was pending until an order granting Hennessy a non-suit and dismissing the cause was entered on March 1, 1961.

On January 19, 1961 Hennessy filed an application with the Commission seeking its approval for the sale and transfer of the specialized motor carrier certificate from appellee to Plennessy which was signed on behalf of appellee by Hennessy as “Attorney-in-fact under Power of Attorney”. Appellee did not sign the application or any exhibits thereto attached except the power of attorney, supra, and the application was filed without the knowledge and consent of appellee.

The application was heard by the Commission on February 28 and April 25, 1961, at Austin, Texas. The transcript of the testimony at the hearings, which was introduced in evidence by agreement of all parties, shows that appellee appeared at both hearings and protested the right and jurisdiction of the Commission to transfer this certificate to Hennessy and offered testimony that there was no contract between appellee and Hennessy but that the contract for the sale of his certificate was with a corporation which was never formed.

On May 9, 1961 the Commission issued its order approving the sale and transfer of the specialized motor carrier certificate from appellee to Hennessy, to which appellee filed exceptions which were overruled by the Commission June 7, 1961 and it thereafter issued certificate No. 5103 and license plates and cab cards to Hennessy.

Under the Commission’s General Order No. 12, an application for sale and transfer of a specialized motor carrier certificate of convenience and necessity must contain “a certified or sworn copy of the contract entered into between the parties, filed as an exhibit to the application and said contract shall set forth in full the true agreement between the parties and shall give the amounts of the purchase price for both intrastate and interstate certificates or permits * * *.” That the application filed by Hennessy to transfer appellee’s certificate did not contain any contract as required by the Commission’s rule was admitted by Mr. Bryan Bell, DirectOir of the Motor Transportation Division of the Commission, on the trial.

Despite the fact that the application was defective under the Commission’s own rule and that appellee had appeared at two hearings before the Commission and testified that there was no contract between him and Hennessy, the Commission entered its order on May 9, 1961 approving the sale and transfer of the certificate, thus determining as a fact that there was a contract between appellee and Hennessy to transfer the certificate from appellee to Hennessy.

It is a recognized rule of law in Texas that the Railroad Commission is without power or jurisdiction to adjudicate disputed contractual or property rights of individuals in granting certificates of convenience and necessity or the transfer and sale of such certificates under the provisions of Art. 911b, V.C.S. Railroad Commission of Texas v. Rau, Tex.Civ.App., 45 S.W.2d 413, 416, error dism.; English v. Landa Motor Lines, Tex.Civ.App., 166 S.W.2d 721, 723, error ref.; Red Ball Motor Freight v. Southern Pacific Transport Co., Tex.Civ.App., 231 S.W.2d 462, 466, error ref., N.R.E.; Continental Bus System v. Railroad Commission, Tex.Civ.App., 262 S.W.2d 446, 448, error ref., and on appeal the Trial Court is without jurisdiction to determine such rights.

However, appellants urge that since all of the interested parties were before the Trial Court on a review of the Commission’s order, the jurisdictional issue raised by appellee is “unimportant,” citing Railroad Commission v. Rau, supra. The opinion in the Rau case discloses that all parties whose interests were involved in the controversy over the validity of the contract, with the exception of the Railroad Commission, had appeared before the Trial Court of their own volition as interveners and by appropriate pleadings had presented the issue as to the validity of the contract in question to the Trial Court by consent of all parties.

In the case before us there was no trial by consent of the parties of the issue of the-validity of the alleged contract for the sale-of the certificate by appellee to Hennessy as an individual, since it is apparent from the record that such issue was first injected, into the case by Hennessy by the filing of a. trial amendment on the day following the-conclusion of the trial over the proper objection of appellee. Hence the holding in the Rau case relied upon by appellants is. not applicable here.

The Railroad Commission does have-exclusive primary jurisdiction over the-transfer of a specialized motor carrier certificate under the provisions of Art. 911b,. V.C.S., and therefore had the power and. authority to transfer the certificate upon-, proper showing of the existence of a contract between appellee and Hennessy which; would authorize the transfer of the title-to the certificate from appellee to Hennessy.. Appellants contend that the power of,attorney dated May 15, 1959 was a general-power of attorney fully authorizing Hen— nessy to execute the transfer of the specialized motor carrier certificate to himself or-another, which in effect constituted such a. contract as would amount to a substantial' compliance with the Commission’s General' Order No. 12 requiring that a copy of the-contract be attached as an exhibit to the-application. With this we cannot agree.

If the power of attorney be construed' to have the legal effect of the contract required by General Order No. 12 between. Hennessy and appellee, it is defective because (1) it does not give the amount of the-purchase price for either the intrastate certificate issued by the Commission or the-interstate certificate or permit issued by the Interstate Commerce Commission, and (2) since the power of attorney must necessarily be construed as a whole, the power and authorization given to appellant thereunder . is not limited to its first paragraph as relied upon by appellants. In the second', paragraph of the power of attorney Hennessy was authorized to handle any andl .-all funds that may come into the possession ■of A-l Heavy Haulers, Inc. by virtue of its operation of the aforementioned permits from and after its date and the fourth paragraph specifically stated that “this power of attorney is coupled with the interest this day assigned and conveyed to A-l Heavy Haulers, Inc.”

The Trial Court found as a fact that “The Power of Attorney issued by Ray R. Miller, dated May 19, 19S9 is a limited Pow- • er of Attorney giving D. J. Hennessy only the right to execute and file an application with the Railroad Commission of Texas seeking its approval of a sale and transfer ■of Certificate No. 5103 to a specifically proposed corporation, which was never formed or created, and such Power of Attorney did not give D. J. Hennessy any power or authority to file any application with the Railroad Commission seeking its approval ■of a transfer of Certificate No. 5103 to him vindividually.”

We agree with the Trial Court’s finding that the power of attorney dated May 15, 1959 was a limited power of attorney which only authorized the transfer of the title to Certificate No. 5103 from ap-pellee to a proposed corporation which was never formed or created and therefore did not constitute such a contract as would authorize the transfer of the certificate to Hennessy.

The proceedings in the Trial Court on appeals under Section 20, Art. 911b, V.C. S. being governed by the substantial evidence rule, it is our opinion that the finding by the Commission that there was a contract between appellee and Hennessy to sell Certificate No. 5103 to Hennessy was not reasonably supported by substantial evi•dence and as a result the Commission’s -order dated May 9, 1961 was illegal and void.

All of appellant’s points of error are •overruled. The judgment of the Trial ■Court cancelling the order of the Railroad ■Commission of Texas dated May 9, 1961 under Docket No. S-5972 approving the transfer of Specialized Motor Carrier Certificate No. 5103 from Ray R. Miller, dba A and P Truck Line to D. J. Hennessy, dba D. J. Hennessy Equipment Company as being illegal and void, and permanently enjoining the Railroad Commission of Texas from enforcing its order of May 9, 1961 and appellant Hennessy from operating under Specialized Motor Carrier Certificate No. 5103 or under the order of the Railroad Commission of Texas dated May 9, 1961, is affirmed.

Affirmed.


author: LANGDON, Chief Justice.

text:
    Walter W. RAMEY et ux., Appellants, v. AMARILLO INVESTMENT COMPANY et al., Appellees.
    No. 5530.
    Court of Civil Appeals of Texas. El Paso.
    May 2, 1962.
    Rehearing Denied May 16, 1962.

      Edwards, Belk, Hunter & Kerr, Berry H. Edwards, El Paso, for appellants.
    Scott, Hulse, Marshall & Feuille, Orda Lee Malone, El Paso, for appellees.
   LANGDON, Chief Justice.

Appellants Walter W. Ramey and wife, Ruth Ramey, brought suit against appellees, Amarillo Investment Company and Joe E. Taylor, for the alleged conversion of a house-trailer, household furnishings kept therein, and for the loss of certain personal possessions. Appellants also alleged that Amarillo Investment Company had collected payments under a usurious conditional sales contract. Suit was for damages for the alleged conversion, cancellation of the contract, and damages for the loss of certain possessions. Trial was to a jury.

At the conclusion of appellants’ evidence appellees moved for a directed verdict. The motion was granted and the trial court instructed a verdict in favor of appellees. Based on the jury verdict returned in accordance with the court’s instruction, a “take nothing” judgment was rendered against appellants. From such judgment appellants have perfected this appeal..

In our opinion the material and controlling facts of this case are not in dispute. No jury issue was raised by appellants’ evidence. The only questions presented were questions of law for the court to decide, and these questions were quite properly decided by the trial court in favor pf ap-pellees.

The record reflects that on or about December 16, 1957, in Albuquerque, New Mexico, Jack and Anita Triden entered into a contract with Western Trailer Sales for the purchase of the house-trailer involved in this controversy. The Tridens executed a conditional sales contract to Western Trailer Sales calling for total time payments in the sum of $6,856.25 payable over a period of 60 months in installments. The first installment was to become due January 5, 1958, in the sum of $144.55, subsequent payments in the amount of $111.86 becoming due on the 5th day of each succeeding month thereafter. All of the information recited above, showing the total amount of the time payments, and the amount of the monthly installments, due dates and the description of the property subject to the conditional sale, was filled in at the time the contract was executed by the parties. Other blanks showing the calculations by which the total time payment was figured were inserted in the conditional sales contract after it had been signed by the Tridens. Among other things the contract provided that the purchaser would keep the trailer free of all taxes, liens and encumbrances; that purchaser would not remove same from the State without first giving notice to seller and obtaining the written consent of seller; and that the purchaser would not assign or transfer any interest in the trailer or in the contract. The contract also provided for repossession of the trailer, the sale thereof, and acceleration of maturity of the installment payments in the event of any default on the part of the purchaser with respect to any of the terms or conditions of the contract.

The conditional sales contract was sold and assigned by Western Trailer Sales to the appellee, Amarillo Investment Company. Thereafter, on or about January 26, 1959, the Tridens (purchasers under the conditional sales contract), without notice to or the consent of Amarillo Investment Company, attempted to convey their equity in the house-trailer to appellants for the sum of $1,293.02. The Tridens and appellants entered into an agreement under which appellants took possession of the house-trailer and agreed, among other things, that they would not remove the house-trailer from the city limits of Albuquerque, New Mexico without the written consent of the Tridens. It was also stipulated in the agreement that in the event Amarillo Investment Company should refuse to permit appellants to take over the payments due under the conditional sales contract, the Tridens would refund to appellants the sum of $250.00 provided appellants, at such time, had paid the Tridens the full sum of $1,293.02 for their equity.

On May 28, 1959, after obtaining possession of the house-trailer from the Tridens, appellants — without notice to or the consent of Amarillo Investment Company— moved it to El Paso, Texas to the Rancho Grande Trailer Park. Appellants failed, for a period of three months, to pay rent on the space occupied by the trailer in the Rancho Grande Trailer Park. Appellants left the trailer in El Paso to take temporary employment in Pecos, Texas. During their absence the trailer park changed hands; the new owner did not know the appellants or their whereabouts and concluded that the trailer had been abandoned. Three months’ rent became due on the space occupied by the trailer, and the owner of the park chained the trailer down with a log chain and asserted a possessory landlord’s lien against the trailer for the unpaid rent. Having discovered that the trailer was registered in the name of the Tridens and that Amarillo Investment Company held a lien thereon, the park owner notified both that the trailer was abandoned and that three months’ rent ($90.00) was then due, and demanded payment.

The Tridens, after having been advised that appellants owed rent on the trailer space, tried unsuccessfully to locate appellants by long-distance telephone, both in El Paso and in Pecos. Being unable to locate them, they advised the Amarillo Investment Company of the arrangement they had with appellants; told them that they would make no further installment payments thereon; and then expressly authorized Mr. Tony Gilson of the company to repossess the house-trailer. This Amarillo Investment Company did and, in the capacity of mortgagee, sold the trailer to Earl J. and Helen Taylor, parents of the appellee Joe Taylor.

At the time of the repossession, the terms of the conditional sales agreement (under which the Triden’s rights to the trailer depended and, consequently, the rights of appellants) had been breached in the number of respects. Default had been made in the payment of monthly installments due thereon; the landlord’s lien had been permitted to attach; an attempted assignment or transfer of the purchasers’ (Tridens’) interest in the trailer had been made; and the trailer had been moved from the State of New Mexico without the consent of Amarillo Investment Company.

Appellants knew, when they contracted with the Tridens for the purchase of their equity, that Amarillo Investment Company had a claim on the trailer and that any valid assignment of the Triden interest or equity depended upon the consent and approval of Amarillo Investment Company. Appellants’ written agreement with the Tridens establishes this fact. The Tridens consented to and authorized the repossession; when their title or interest in the trailer was extinguished, the rights of appellants therein, if any, also failed.

We believe, therefore, that appellants failed, as a matter of law, to establish that they were “the rightful possessors and owners” of the trailer in question, as plead by them, and that in the absence of such proof appellants’ cause of action against both ap-pellees for an alleged conversion of the house-trailer failed as a matter of law.

Appellants make no point on appeal concerning the loss of certain personal possessions alleged to have been left in the house-trailer. They do, however, complain that there was sufficient evidence upon which a jury could have found that each item of the furniture in question was converted by Amarillo Investment Company, and also that there was sufficient evidence upon which a jury could have found that appellee Joe E. Taylor was a party to the conversion of appellants’ furniture.

Appellants alleged that they were the owners of certain furniture worth $150.00 which was stored in the house-trailer and which they contend was wrongfully appropriated by appellees. Having carefully examined the entire record, we have concluded that there is no evidence to support appellants’ contention that either Amarillo Investment Company or Joe E. Taylor wrongfully appropriated or otherwise converted such furniture. Amarillo Investment Company sold the house-trailer to Earl J. and Helen Taylor, parents of appel-lee Joe E. Taylor. The company did not purport to sell the furniture to the Taylors, and we can find no evidence that such company exercised or attempted to exercise any control or dominion over the furniture other than to repossess the house-trailer in which it was stored; and this, we believe, they had a right to do. When Earl J. and Helen Taylor (not parties to this suit) moved into the trailer after purchasing it from Amarillo Investment Company, they removed the furniture from the trailer, piece by piece. At time of trial they were still in possession of such furniture and it was available to appellants through them. However, as stated, Earl J. and Helen Taylor were not made parties to the suit. Appellants sued their son, Joe E. Taylor, whose-only connection with either the trailer or the furniture was by way of assisting his parents in making the purchase from Amarillo-Investment Company.

We hold that the trial court correctly-directed a verdict in favor of appellees. In making this determination we have examined the entire record, including all the-testimony relevant to the issues here involved; and, viewing the evidence in the light most favorable to appellants, disregarding all conflicts and indulging every intendment reasonably deducible from the-evidence in favor of such appellants, we are of the opinion there is no evidence tending to sustain appellants’ case. Baumgarten v. Frost, 143 Tex. 533, 186 S.W.2d 982, 159 A.L.R. 428; White v. White, 141 Tex. 328, 172 S.W.2d 295; King v. King, 150 Tex, 662, 244 S.W.2d 660.

We reject appellants’ contention that the-conditional sales contract under which the-Tridens purchased the trailer was usurious. The contract itself clearly reflects that the-house-trailer was purchased under a time-credit-price plan. It is well settled that a. seller may have a cash price for his commodity and a different and higher time-credit price for the same commodity, and' such difference in price does not constitute interest for the forbearance, use or detention of money or credit. National Bond & Investment Co. v. Atkinson, 254 S.W.2d 885 (Civ.App., error dis’m.) ; Gill v. Universal C.I.T. Credit Corporation, 282 S.W.2d 401 (Civ.App., ref. n. r. e.).

In addition, it is a general rule that the defense of usury is personal to the borrower, and may be urged only by him or persons in privity with him; that is, a person who is not a party to a loan contract and who has not acquired rights based thereon may not urge that it is usurious. While this rule is subject to some exceptions, we do not believe the exceptions to the rule are applicable to the facts of this case.

Appellants have raised a number of other points, all of which, after careful consideration, we have concluded have no application to the merits of this appeal and should therefore be overruled, and it is so ordered.

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


author: NORTHCUTT, Justice.

text:
    W. P. MAYBERRY, Appellant, v. Mrs. W. C. CAMPBELL, Appellee.
    No. 7142.
    Court of Civil Appeals of Texas. Amarillo.
    April 16, 1962.
    Rehearing Denied May 14, 1962.
    Roy A. Jones, Paducah, for appellant.
    Howard Traweek, Matador, for appellee.
   NORTHCUTT, Justice.

Mrs. W. C. Campbell, a widow, as plaintiff, filed this suit in the District Court of Cottle County, Texas, against W. P. May-berry, as defendant, for title and possession of 4 tracts of farm land situated in Cottle County consisting of 410.83 acres of land owned by her. The defendant answered by a plea of not guilty and specially pleaded a Soil Conservation Reserve Contract alleging that same was a contract between plaintiff and the United States Department of Agriculture for the benefit of the defendant as a third party beneficiary and pleaded an alleged oral contract between plaintiff and defendant renting the land to defendant for the duration of the Soil Conservation Reserve Contract. Byway of cross action, defendant asked for damages for the cost of certain improvements alleged to have been made by defendant on the property. The plaintiff excepted to the defendant’s pleadings as to the Soil Conservation Reserve Contract as being immaterial and irrelevant to any issue in the case, and also excepted to the alleged oral contract renting him the land for the duration of the Soil Conservation Reserve Contract as being in violation of the Statute of Frauds. The case was tried to a jury, and at the close of all the evidence, the judge instructed the jury to return a verdict for the plaintiff. Upon the verdict, judgment was granted in favor of the plaintiff for the title and possession of the property in question. From that judgment the defendant perfected this appeal. Hereafter the defendant will be referred to as appellant and the plaintiff as appellee.

By appellant’s first assignment of error it is contended the court erred in permitting the witness, Sandlin, to read to the jury from an office memorandum. Appellant prepared his bill of exception to the Court’s action in permitting Sandlin to read from said memorandum, but the judge qualified his bill by stating the defendant introduced the letter (being the memorandum) in evidence and proceeded throughout to propound questions based thereon. The appellant did not attempt in any manner to object to any qualifications the judge made to said bill. Mr. Sandlin was the Office Manager of the Cottle County A.S.C. and the information sought from him was as to how the Department of Agriculture interpreted the contract with the landlord as to whether or not the tenant had the rights on a farm for the life of such contract. We do not consider the court committed reversible error in permitting the reading of such memorandum, especially since the appellant introduced the memorandum, and also another memorandum stating the same thing in substance as that part read by Mr. Sandlin that appellant complains of. Appellant’s first assignment of error is overruled.

Appellant’s remaining assignments of error contend the court erred in granting an instructed verdict because appellant was seeking affirmative relief; would not let the jury decide the many questions of fact, and in refusing to give the many requested special issues. Appellant was farming the land in question under an oral agreement, and under Article No. 3995, Texas Revised Civil Statute, the lease could not be enforced for a period longer than one year. It is appellant’s contention that he is entitled to retain possession under the Soil Conservation Reserve Contract entered into by appellee since he was the tenant at the time the contract was entered into and he had conformed to all the requirements of a tenant under the terms of said contract. The trial court held that the Soil Conservation Contract relied upon by the appellant had no bearing on the case. The appellant did not except to such ruling of the court and does not here present any assignment of error as to such action of the court.

Appellant seeks to recover for certain improvements he placed upon said land because he thought he was to be permitted to remain upon the land for the full term of the Soil Conservation Contract. He knew he did not own the land but placed such improvements thereon for his own convenience without any authority from ap-pellee and without any agreement or understanding that he would be reimbursed therefor. Consequently, he was not entitled to be reimbursed for such improvements and such improvements became a part of the land. Luker v. Luker, Tex.Civ.App., 226 S.W.2d 482; Producers Lumber & Supply Company v. Olney Building Company, Tex.Civ.App., 333 S.W.2d 619.

Since the Soil Conservation Contract had no bearing on the case, appellant had no right to the property other than a tenant for a period of one year under an oral agreement. Appellee requested possession of her property and appellant’s oral lease having terminated, under this record, there were no questions of fact to be determined. There being no question of fact to be submitted to the jury, the trial court correctly instructed the jury to return a verdict for appellee. Judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

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    Jack FOSTER et al., Appellants, v. Melvin HARVEY et al., Appellees.
    No. 7146.
    Court of Civil Appeals of Texas. Amarillo.
    April 23, 1962.
    Brummett & Brummett, Lawrence F. Green, Lubbock, for appellants.
    Shaver, Hurley & Sowder, Lubbock, for appellees.
   CHAPMAN, Justice.

This is an appeal by Jack Foster and Earl Ince, Jr. from a judgment based upon a jury verdict in favor of numerous property owners in and lien holders on lots in the Southport Addition to the city of Lubbock in which appellants sought 'to remove restrictive covenants limiting the addition to residential purposes only.

In answer to special issues submitted the jury found the two lots each appellants were seeking to have the residential only restriction removed from had not been “rendered * * * reasonably unsuitable for exclusively residential purposes” because of changes in Southport Addition since June 28, 1952 along Avenue Q. in the area of the four lots in question and the area surrounding the addition; that retaining such restrictions would not cause appellants substantially greater harm than would be caused the resident-owners properties by the removal of the restrictions; that the benefits of the original plan for the restrictions could still be realized for the protection of the interior lots owned by ap-pellees, notwithstanding appellants might be deprived of the most valuable use of their four lots in the addition; that the changes since June, 1952 above stated have not rendered appellants’ lots in the addition “reasonably unsuitable for exclusively residential purposes;” and that the removal of the restrictions would result in material injury to the property owned by the resident-■owner defendants. From the judgment based upon such verdict denying appellants any relief and declaring the conveyance and restrictions theretofore imposed to be valid, in full force and effect, and fully ■binding on all property owners in South-port Addition, appellants perfected their appeal.

In their first group of points appellants •contend there was no evidence to support the answers to the issues submitted, that the great weight and preponderance of the evidence was contrary to the jury’s findings and that the court '“erred in admitting evidence of purely conjectural and speculative nature relating to anticipated future damages on the part of defendants in the event the restrictions were lifted on plaintiffs’ lots.”

We have carefully read the 601 pages constituting the Statement of Facts and have found that the evidence is not subject to the criticism made in the points under discussion. There is testimony of probative value which shows in effect that a removal of the restrictions sought would require more parking area adjacent to such commercial property as might be constructed on the lots from which the restrictions are sought to be removed, thus creating an encroachment on the adjacent lots; that once the residential only barrier is broken it would tend to create creeping commercialism ; that it would lower values for residential purposes; that-it would affect ingress and egress to the interior lots; that it would lower the values because of uncertainties created once the restrictions are broken; that it would be more difficult to secure loans; and that appellants’ lots have not been rendered reasonably unsuitable to be used exclusively for residential purposes. Of course, some of this evidence was controverted but the jury resolved the issues favorable to appellees. There is also other probative evidence to justify the answers to the issues submitted and the jury findings are not contrary to the great weight and preponderance of the evidence. The witnesses were asked by all counsel examining them what, in their opinion, would be the various results from lifting the restrictions on the four Ince and Foster lots. Such opinions would of course necessarily be partly speculative and conjectural but would not constitute reversible error in a case of this nature depending upon opinion evidence.

The San Antonio Court of Civil Appeals in Bethea v. Lockhart et al., 127 S.W.2d 1029 has quoted with approval from two other courts holding:

“ ‘The rule which we adopt is well stated in Swan v. Mitshkun et al., 207 Mich. 70, 173 N.W. 529, 530, wherein the court said: “Those owning property in a restricted residential district or neighborhood, and especially those who have their homes there and have been led to buy or build in such locality by reason of restrictive covenants running with the land imposed upon the street, block, or sub-division in which they have purchased, are entitled to protection against prohibited invasion regardless of how close business may crowd around them on unrestricted property, provided the original plan for a residential district has not been departed from in the restricted district, street, or block and the restrictive requirements have been generally enforced, or accepted and complied with by purchasers.” ’ * * *
“ ‘ * * * “The fact that apart from and surrounding the tract some business has grown up, and that the land has become more valuable in consequence, in no manner entitles defendants to be relieved of the restrictions they have created. This condition is but the natural result of the improvement of the various tracts, and the fact that the property may have become more valuable thereby for business purposes is immaterial.” ’ ”

That case has been approved by the Supreme Court and we think the quotes are particularly applicable to the instant case. The points are without merit and they are overruled.

The next point urges reversible error by the introduction into evidence of a photograph of Mr. Ince’s residence. The Statement of Facts shows the identification of the proposed exhibit as “D 5” but we have been unable to find where it was introduced after its identification, or shown to' the jury. In any event, there is no reversible error shown under Rule 434 Vernon’s Ann.Tex.Rule even if the house had been studied by the jury. Mr. Ince testified his lots in the Southport Addition were not suitable for his residence. It would not be reversible error for the jury to view the-type house in which he lived for the purpose of deciding that question.

Appellants’ sixth point urges error of the court in permitting the testimony of appellees’ expert witness, A. C. Jackson as-to whether the four lots were reasonably suitable for residential purposes. His qualifications as an expert show that he was an, approved appraiser for the Veterans Administration, for G. I. Insured Loans, for the Federal Housing Administration, and for the State Highway Department; that he had made appraisals for the Lubbock Independent School District for 25 years;, and that he had appraised in condemnation, cases, both State and Federal and for both the land owners and condemnors. One assessing values would necessarily have to-give consideration to suitability of various types of property for certain locations as a part of arriving at values. We believe the many years of varied experiences qualified the witness as an expert on the questions-asked.

Appellants’ statement under the seventh point indicates they are urging reversal of the case because the court held with their adversaries on questions of evidence more times than with them. Because of this unusual statement on the point we carefully marked on a sheet of paper as we read the Statement of Facts the number of times the court ruled with each side on the admissibility of evidence. The record shows complete objectivity in the court’s-rulings on questions of evidence. Anyhow,, the question should be decided upon whether any ruling on evidence was reversible,, whether once or many times We have-found no reversible error in this regard. We believe the record shows the case was very carefully and objectively tried. Finding no reversible error in the record the judgment of the trial court is affirmed.

      . Scaling v. Sutton et al., Tex.Civ.App., 167 S.W.2d 275, 281; Bethea v. Lockhart, Tex.Civ.App., 127 S.W.2d 1029.

      . Lebo et al. v. Johnson et al., Tex.Civ.App., 349 S.W.2d 744.


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    WESTERN FIRE & INDEMNITY COMPANY v. Barbara C. BRADSHAW.
    No. 7119.
    Court of Civil Appeals of Texas. Amarillo.
    April 2, 1962.
    Rehearing Denied April 30, 1962.
    Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Clinton & Shelton; Huff & Bowers, Lubbock, for appellee.
   DENTON, Chief Justice.

This is a Workmen’s Compensation case. In response to special issues the jury found the claimant, Barbara C. Bradshaw, was totally disabled for a period of 260 weeks. Judgment was entered in accordance with the jury findings, payable in a lump sum. Appellee was an employee of the Methodist Hospital in Lubbock, Texas, and alleged she was injured on January 6, 1960 while in the course of her employment. She alleged she received injuries to her lumbo sacral and cervical spine when she tripped and fell over an electrocardiograph machine. Following her fall, she was admitted to the hospital for a period of ten days. Two days after her release she was readmitted and was hospitalized for an additional 22 days. During these periods of time, Mrs. Bradshaw was given various types of treatment including physical therapy, shots and X-Rays under the supervision of several different doctors, including a psychiatrist. She resumed her employment on or about March 1, 1960, and worked until July of that year, at which time her employment was terminated by her employer. Appellant brings forward no points of error which contend the verdict is not supported by the evidence.

Appellant first complains of the action of the trial court in sustaining ap-pellee’s objection to the admission of a portion of a hospital record of appellee dated June 4, 1957. Appellant takes the position the record is admissible as a business record under Art. 3737e, Vernon’ Ann. Civ.St. Appellee’s objection was to the effect the hospital record constituted hearsay, and its admission would deprive ap-pellee of cross examination of the doctor making the entries. The proper predicate was laid for the introduction of the record by testimony of the medical record librarian of the hospital. The portion of the record appellant sought to^ introduce into evidence read as follows: “Reporting pt. complains /e headaches, pain in lower extremities — free movement of neck — reflexes normal — pt. still going to school— recommend a brain wave and see a psychiatrist. Dr. Stiles/MM.”

The rule is now well settled that by the enactment of Art. 3737e the legislature intended to create an exception to the hearsay rule. Travis Life Ins. Co. v. Rodriguez (Tex.Civ.App.) 326 S.W.2d 256 (refused n. r. e.). In addition to holding business records under Art. 3737e are exceptions to the hearsay rule, the Rodriguez case held: “It is our opinion that Art. 3737e should be interpreted and construed so as to authorize the admission in evidence of the hospital records, including the diagnosis of leukemia shown thereon * * In refusing a writ in the Rodriguez case with the notation “no reversible error,” the Supreme Court filed a per curiam opinion expressly approving the construction of Art. 3737e placed on it by the Austin Court of Civil Appeals. As far as we are able to determine this is the only direct expression of the Supreme Court on the admissibility of hospital records under this statute. Under authority of the Rodriguez case we conclude the hospital record in question was clearly admissible. See also Missouri Pacific Railroad Co. v. Watson (Tex.Civ.App.) 346 S.W.2d 640 (refused n. r. e.) ; State Automobile & Casualty Underwriters v. Reagan (Tex.Civ.App.) 337 S.W.2d 522 (no writ history).

It appears that the Rodriguez case goes further in holding a diagnosis of leukemia is admissible than we are required to hold in the instant case. We question whether or not the statement before us contains a diagnosis as such. It may be argued the notation “ * * * recommend a brain wave and see a psychiatrist” implies a diagnosis of a mental problem. If this be so, we remain of the opinion the statement is admissible under the Rodriguez case. We see no distinction, in respect to the admissibility, between a diagnosis of leukemia and a diagnosis of a mental problem. We agree with the conclusion expressed by the court in Missouri Pacific Railroad Co. v. Watson, supra, that the opinion and the Supreme Court’s approval of the opinion in the Rodriguez case did not limit the ad-missibilty of diagnostic reports to those cases where the diagnosis is the one about which physicians ordinarily do not differ.

Even though we think the doctor’s statement was clearly admissible, the exclusion of the report was harmless. Appellee was extensively cross examined concerning her examination and treatment by Dr. Stiles in 1957. Although she was vague about the details of that injury, she attached very little significance to the injury she admitted she suffered at that time. To be able to rebut the appellee on this question would be of very little significance in view of the vagueness of her testimony concerning the 1957 occurrence. The statement indicated she remained in school, and the evidence is uncontradicted that the injury did not interfere with her high school activities, which included various forms of athletics. Dr. Royce C. Lewis, one of the treating doctors and a witness for appellant, testified that Mrs. Bradshaw’s back “was essentially objectively normal and that any of her complaints were most likely on an emotional basis and I felt that Dr. Miller needed to continue treatment. As a matter of fact, I told them for some reason if they didn’t like Dr. Miller or didn’t like me or something, to find another doctor but that I thought she should have psychiatric care.” This testimony, along with other evidence admitted, is cumulative of the statement in the excluded record.

In determining whether or not harm was done by the exclusion of the report, we must look to the whole case. After considering the statement of facts including the medical testimony both for and against the appellee, and the lay witnesses who testified concerning her condition, together with the excluded evidence, we conclude that the exclusion of the hospital record of 1957 did not under the facts of this case amount to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, Texas Rules Civ.Proc.

Appellant’s next three points of error complain of improper jury argument made by counsel for appellee. It is well settled that before a judgment is reversed because of argument of counsel two things must appear: the argument must be improper, and it must be such as to cause and probably did cause the rendition of an improper judgment in the case. Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596. As appellant made no objections to the arguments here complained of, we must also view these arguments in the light of the rule that requires timely objections to the improper argument on penalty of waiver, if the offending argument is “curable.” Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054; Wade v. Texas Employers’ Ins. Ass’n, 150 Tex. 557, 244 S.W.2d 197.

The three arguments complained of included a comment by appellee’s attorney concerning “the burden on my shoulders” in representing appellee in this case; a statement that as appellee was an employee of the Methodist Hospital she had to go elsewhere to obtain a doctor to freely testify in her behalf; and a reference to appellant trying to “beat” the hospital out of its hospital bill and by paying it after the suit was filed indicated appellant was trying to defeat appellee’s compensation claim.

All of counsel’s arguments appear in full in the statement of facts. Having read these arguments, we are unable to say the arguments complained of are improper. When the arguments are considered in their proper context they are not of a strong nature. References to obtaining a doctor not connected with the Methodist Hospital were invited by remarks of counsel for the appellant, and the comment concerning the payment of the hospital bill by the appellant was a comment on a matter brought out in the testimony. The remarks concerning counsel’s responsibility in representing the appellee is of no real significance when considered with the whole argument presented to the jury. We conclude the remarks complained of are not of such nature as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Aultman v. Dallas Ry. & Terminal Co., supra. It is our further view that if it could be said that these arguments were improper, they were of such a nature that timely objections should have been made under the rule set out in Wade v. Texas Employers’ Ins. Ass’n, supra.

In response to a special issue the jury found it would result in manifest hardship and injustice to Mrs. Bradshaw if compensation was paid in weekly installments rather than in a lump sum. Appellant contends there is no evidence to support this jury finding. We are in accord with this contention. Although the courts have gone far in upholding verdicts allowing lump sum recoveries, there must be some evidence to support such a recovery. A close examination of this record reveals absolutely no evidence to support this jury finding. Being of the opinion the trial court was thus in error in rendering the judgment in a lump sum, the judgment will be reformed so as to allow appellee compensation in weekly installments in the stipulated amount for the period of 260 weeks.

The judgment of the trial court is therefore reformed and as reformed, affirmed.


author: GRISSOM, Chief Justice.

text:
    BITUMINOUS CASUALTY COMPANY, Appellant, v. Joe E. WHITAKER, Appellee.
    No. 3705.
    Court of Civil Appeals of Texas. Eastland.
    April 20, 1962.
    Rehearing Denied May 18, 1962.

      Beckmann, Stanard, Wood & Vance, San Antonio, G. Curtis Jackson, Crystal City, for appellant.
    G. Woodson Morris, Guy Bonham, San Antonio, for appellee.
   GRISSOM, Chief Justice.

In a jury trial of a workmen’s compensation case, judgment was rendered for the claimant against the insurance carrier for benefits resulting from findings of total permanent disability by the jury at the compensation rate of $35.00 per week, such rate being fixed by the court and, presumably, based upon its finding of average weekly wage. The insurer has appealed.

It was undisputed that the claimant was totally incapacitated as a result of an accident on March 17, 1959. Therefore, issue number 1 assumed such total incapacity and then inquired whether it was permanent or temporary. The jury found it was permanent. Issue 3 inquired whether Whitaker’s total incapacity would be followed by partial. The jury was instructed that unless it had answered issue 1 “temporary” not to answer issue 3. Therefore, in accord with the court’s instruction, the jury did not answer issue 3. An answer to issue 8 was conditioned upon an answer to issue 3 that claimant’s total incapacity would be followed by partial incapacity. Issue 8 inquired what would be a fair and just average weekly wage. Since the jury had not so answered issue 3, in accord with the court’s instructions, it did not answer issue 8. Nor did it answer issue 9, likewise conditioned, which inquired as to Whitaker’s average weekly wage earning capacity during his partial incapacity.

Relative to the question now under consideration, the jury only answered issue 1, Although the question of what was a fair and just average weekly wage was submitted, because it was conditionally submitted, it was not answered by the jury. The insurance company contends the court erred in fixing claimant’s compensation rate at $35.00 per week and that the court was without authority to do so because claimant’s average weekly wage was a question of fact which had been submitted to the jury but not answered by it

We have carefully examined the record and have concluded that the pleadings and evidence raised a question of fact as to what was a fair and just average weekly wage under Subdivision 3 of Article 8309, Section 1. Rules of Civil Procedure, rule 279 provides that where a ground of recovery consists of more than one issue, if some issue necessary to sustain such ground of recovery, and necessarily referable thereto, is submitted to and answered by the jury, and one or more of such issues are omitted, without request or objection, and there is evidence to support a finding thereon, that such omitted issue “shall” be deemed found by the court in such manner as to support the judgment. Appellee says that the question of a fair and just average weekly wage was conclusively established. We cannot agree with this contention. The fact that the insurer pleaded that it had paid Whitaker compensation at the rate of $35.00 per week for 32 weeks did not conclusively establish that $35.00 was the compensation rate. The Supreme Court so held in Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991, 995. Based on such decision, we so held in Superior Insurance Company v. Griffin, Tex.Civ.App., 323 S.W.2d 607, 609. Without discussion of that question the Supreme Court affirmed our judgment. See Tex.Civ.App., 338 S.W.2d 415.

Appellee says that, if not conclusively established, we must presume the court found a fair and just average weekly wage that would result in a compensation rate of $35.00 per week. We agree with this contention. What was a fair and just average weekly wage was an issue of fact. Like issue 1, it was an issue necessary to sustain claimant’s ground of recovery, and necessarily referable thereto. It was one of the elements of claimant’s ground of recovery. Under the circumstances, by such conditional submission, its submission was “omitted”, without objection by appellant, within the meaning of R.C.P. 279. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 989; Colls v. Price’s Creameries, Tex.Civ.App., 244 S.W.2d 900, 907, (Ref, N.R.E.) ; Pacific Employers’ Insurance Company v. Brasher, Tex.Civ.App., 234 S.W.2d 698, 701 (Ref. N.R.E.); Bankers Standard Life Insurance Company v. Atwood, Tex.Civ.App., 205 S.W.2d 74, 77; Knight v. Stewart, Tex.Civ.App., 287 S.W.2d 748, 749; Bowers & Kelly v. Texas & Pacific Ry. Co., Tex.Civ.App., 275 S.W.2d 166, 167; Texas Employers’ Insurance Ass’n v. Ray, Tex.Civ.App., 68 S.W.2d 290, 295, (Writ Ref.); Balcomb v. Vasquez, Tex.Civ.App., 241 S.W.2d 650, 656; Anderson v. Broome, Tex.Civ.App., 233 S.W.2d 901, 904. Under the circumstances we are required to presume that the trial court found as a fact a fair and just average weekly wage which would result in a compensation rate of $35.00. Walker v. Texas Employers’ Insurance Ass’n, 155 Tex. 617, 291 S.W.2d 298, 303; R.C.P. 279. We, therefore, hold that the jury’s answer to issue 1 and the court’s presumed finding support the judgment rendered so far as it is based on findings of total permanent incapacity and such compensation rate.

We sustain appellant’s points 4 and 5. The judgment includes a recovery of $750.00 for future medical expenses. Section 5 of Article 8307, as amended in 1957, prohibits the rendition of a judgment for future medical expenses in a workmen’s compensation case.

The judgment includes $710.00 found by the jury to be the reasonable and necessary medical expenses incurred by the plaintiff before the trial. Appellant’s contention that there is no evidence from which the jury could find such amount is overruled. We think there is some evidence in support thereof. Renfro Drug Company v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613, 23 A.L.R.2d 1114.

The judgment will be reformed to eliminate the recovery of $750.00 for future medical expenses. As so reformed, the judgment is affirmed.