author: GRISSOM, Justice.

text:
    NATIONAL AID LIFE OF OKLAHOMA CITY, OKL., v. BROOKS.
    No. 2054.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 25, 1940.
    Chrestman, Brundidge, Fountain, Elliott & Bateman, of Dallas, for appellant.
    L. H. Welch, of Breckenridge, for ap-pellee.
   GRISSOM, Justice.

This is an appeal.from a judgment overruling the plea of privilege of the defendant, National Aid Life of Oklahoma City, Oklahoma, to be sued in the county of its residence. In National Aid Life v. Self, Tex.Civ.App., 140 S.W.2d 606, we held that the evidence showed (1) that the defendant therein, National Aid Life, was a state-wide mutual assessment company, within the purview of Subd. 28a, Art. 1995, Vernon’s Ann.Civ.St., and (2) that the beneficiary instituting the suit on the policy issued by said defendant resided in Stephens County, wherein the suit was instituted. We, therefore, concluded that the venue of the case was sustainable in said county under subd. 28a. We further held that venue in Stephens County was shown under subd. 23 of Art. 1995, when plaintiff alleged and proved that said defendant was (1) a private corporation, and (2) had an agency, or representative, in said county. We further held that proof of a cause of action, under the circumstances above indicated, was not required as one of the venue facts.

Appellant has graciously filed a stipulation herein, in part, as follows: “Appellant believes that the identical question is involved in this case, and that the final result in the Kate Self case will control the decision herein. It does not waive or withdraw any of its contentions in either case, but desires to save the court the time that would be required in reading the Statement of Facts and Transcript, and agrees that this case is governed by the same basic principles that are involved in the Kate Self case.”

Therefore, upon the authority of National Aid Life v. Kate Self, supra, and authorities therein cited, the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    TRADERS & GENERAL INS. CO. v. WRIGHT.
    No. 2047.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 11, 1940.
    Rehearing Denied Nov. 8, 1940.
    Will R. Saunders, of Dallas, and Brooks & Little, of Big Spring, for plaintiff in error. i
    Thomas & Thomas, of Big Spring, and Joseph A. Beyer, of Crane, for defendant in error.
   GRISSOM, Justice.

This is a workman’s compensation case in which the plaintiff, A. N. Wright, recovered judgment against the defendant, Traders & General Insurance Company, for $4,243.84. The defendant has appealed. The parties will be referred to as they appeared in the trial court. This is the second appeal of this case. See, Tex.Civ.App., 95 S.W.2d 753, affirmed 132 Tex. 172, 123 S.W.2d 314.

Defendant’s main contention is that the judgment should be reversed and judgment rendered for it because the trial court erred in overruling its motion for an instructed verdict, in that (it contends) the evidence shows conclusively that (1) plaintiff’s tubercular condition is the cause of his incapacity; (2) that tuberculosis was active prior to the time plaintiff was injured by inhaling gas, and (3) because there is no proof that plaintiff’s tubercular condition was the natural result, without the intervention of a new and independent agency or disease, of inhalation of gas. Relative thereto the jury found (1) that Wright sustained “personal accidental injuries” November 21, 1933; (2) that said injuries were sustained in the course of his employment with Storey, Friebele and Duf-fey; (4) that Wright was totally incapacitated for work as a result of the injuries received November 21, 1933; (5) that such total disability developed November 27, 1933; (6) that such total disability is not permanent; (7) that plaintiff’s total incapacity continued for 104 weeks; (8) that said injury of November 21, 1933 resulted in plaintiff’s partial incapacity; (9) that plaintiff’s partial incapacity began November 27, 1935; (11) and continued for 89 weeks; (16) that Wright did not have tuberculosis prior to November 21, 1933; (20) that tuberculosis was not the sole producing cause of plaintiff’s incapacity.

We think it is not conclusively shown, as contended by defendant, that tuberculosis is the sole cause of plaintiff’s incapacity nor that plaintiff had an “active” case of tuberculosis when he inhaled gas on November 21, 1933, and we believe the evidence is sufficient to authorize a finding that tuberculosis is the natural result of the injury to his lungs. We think the evidence is sufficient to authorize a finding that on November 21, 1933, while cleaning out an oil tank he inhaled poisonous gas under such circumstances as to constitute an accidental injury within the meaning of Article 8309, Vernon’s Ann.Civ.St., and that the inhalation of the gas so injured his lungs that as a result thereof he thereafter contracted in succession, pneumonia and tuberculosis, and that the injury was a contributing cause of his incapacity. We think there is no conclusive evidence of the intervention of a new and independent agency or disease which produced his incapacity.

Defendant contends that it is undisputed that plaintiff’s incapacity is the result of a tubercular condition which existed prior to the inhalation of gas, and that, therefore, the incapacity could not be the result of inhaling gas. To support this contention it points to the allegation in plaintiff’s petition that by reason of the gas entering Wright’s lungs a “latent and dormant tubercular bacilli was made active and as a natural result thereof tuberculosis developed.” Such allegation is found in an alternative plea. In a prior portion of plaintiff’s pleadings he had alleged that the gas burned and irritated his lungs and that' as a result thereof tuberculosis developed. We think such alternative allegation does not constitute an admission that plaintiff had tuberculosis prior to the inhalation of gas. Rotsky v. Kelsay Lumber Co., 118 Tex. 180, 188, 12 S.W.2d 973.

Defendant points to. the testimony of a certain doctor as conclusive evidence of prior tuberculosis. From this testimony the jury might have found plaintiff was suffering from tuberculosis at the time he inhaled gas, but that was a matter in dispute which the jury has determined adversely to defendant. There was evidence that for fifteen years prior to the inhalation of gas plaintiff was able to and did perform hard manual labor without trouble, that after he was gassed he was not able to do so, etc. There was also the testimony of his doctor, contrary, in effect, to that of defendant’s doctor that the condition of plaintiff’s lungs definitely indicated tuberculosis following the inhalation of gas.' Defendant stresses testimony' that tuberculosis is a germ 'disease and that, as a scientific proposition, tuberculosis' cannot be taken from the gas itself. We think the evidence is sufficient to justify the conclusion that pneumonia and tuberculosis resulted from the injury to plaintiff’s lungs; that pneumonia was not an independent intervening agency or disease which broke the chain of causation between the injury and the tubercular condition, but that pneumonia and tuberculosis were each a naturally resulting link in the chain of causation set in force by the inhalation of gas which irritated and inflamed plaintiff’s lungs. Order of Railway Conductors v. Gregory, Tex.Civ.App., 91 S.W.2d 1139, 1142.

We think the decision in Texas Employers’ Ins. Ass’n v. Burnett, Tex.Com.App., 105 S.W.2d 200, 201, and the other decisions relied upon by defendant, may be properly differentiated and distinguished from the present case upon the facts! The question decided in the Burnett case, as stated by Judge German, was: “Do the beneficiaries of a deceased employee have a right to recover compensation for death of the employee when the death is due directly to an independent intervening agency, having no connection with or relation to the original injury, although the injury may have to some extent reduced the power of resistence of the deceased, and in that manner contributed in some degree to his death?” He answered the question as follows :

“We think the question is answered by our statute. Compensation for either disability or death must have for its foundation an ‘injury’ received by an employee in the course of employment. Our compensation law has defined ‘injury’ in this language: ‘The terms “injury” or “personal injury” shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom.’ (Rev.St.1925, art. 8309, § 1.)

“It is thus seen that diseases which naturally result from an injury are themselves classed as an injury, and if an employee be incapacitated thereby, or if he die therefrom, compensation is allowed. On the other hand, it was held in the case of Buchanan v. Maryland Cas. Co., 116 Tex. 201, 288 S.W. 116, that death by typhoid fever contracted by an employee as the result of impure water or food furnished by an employer is not compensable. It is pointed out, as was done in the case of Texas Employers’ Insurance Ass’n v. Jackson (Tex.Com.App.) 265 S.W. 1027, that a disease which does not ensue by reason of an injury inflicted upon the body, that is, by ‘damage or harm to the physical structure of the body,’ is not compensable. It follows, therefore, that death by disease not naturally caused by the injury, but intervening as an independent agency, is not compensable. To be compensable, the death must result from the physical injury or from disease or infection which naturally results from the injury. If there be no such disease or infection, as in the present instance, there can be no compensable death; unless the physical injury itself be the cause of the death.” (Italics ours)

In the Burnett case the court further said: “It is not even contended in this case that the death was the result of the injury.” The court further held that the trial court did not properly submit the question of injury being the cause of Burnett’s death, and that there was no sufficient proof to raise that issue. Of course, if it was not even contended that Burnett’s death was the result of an injury, and there being, as said by Judge German, no disease or infection, resulting from the injury, and the question of injury not being properly submitted to the jury, and there being no sufficient proof thereof, certainly, under such circumstances, plaintiff in that case was not entitled to recover.

In the instant case it is contended the accidental injury, to-wit, the burning of Wright’s lungs by inhalation of poisonous gas, was a contributing cause of his incapacity. There was no dispute as to whether or not he was gassed. The jury found in answer to issue 1 that he sustained personal accidental injuries on November 21, 1933. The only injuries alleged or proved were those caused by inhaling gas on that date. In answer to issue 16 the jury found that he did not have tuberculosis prior to that time, and, in answer to issue 20, that tuberculosis was not the sole producing cause of his incapacity. We think the evidence is sufficient to justify said findings.

In Texas Indemnity Ins. Co. v. Staggs, Tex.Com.App, 134 S.W.2d 1026, 1028, 1029, opinion by Judge Smedley, the Supreme Court held it was not necessary for a compensation claimant to establish that the injury proximately caused his disability. Recovery is authorized “if a causal connection is established between the injury and the disability * * * The court further said:

“The same principle is given effect in compensation cases which hold that when injury is sustained by an employee in the course of his employment which results in his disability or death, compensation therefor will not be denied, although the injury may be aggra/uated or enhanced by the effect of disease existing at the time or afterwards occurring. Guzman v. Maryland Cas. Co., 130 Tex. 62, 107 S.W.2d 356; Commercial Standard Ins. Co. v. Noack, Tex.Com.App, 62 S.W.2d 72; Texas Emp. Ins. Ass’n v. Parr, Tex.Com.App, 30 S.W.2d 305; Norwich Union Indemnity Co. v. Smith, Tex.Com.App, 12 S.W.2d 558; Millers’ Indemnity Underwriters v. Schrieber, Tex.Civ.App, 240 S.W. 963, application for writ of error refused.
“Judge Nickels, writing the opinion in Norwich Union Indemnity Co. v. Smith, supra (12 S.W.2d 561), said: ‘And if “Bright’s disease”, etc. existed prior to the “fall” and made substantial contribution to death, those facts would not preclude a holding that death resulted from injury received in the “fall” ’. In Texas Employers’ Insurance Association v. Parr, supra, the jury in answer to a special issue found that seventy-five per cent, of the incapacity of the employee was chargeable to injury suffered by him in the course of his employment and by inference that the other twenty-five per cent, was the result of disease. It was held that .notwithstanding such finding the employee was entitled to the full amount of the compensation allowed by the statute.
“In the cases last cited the diseased condition of the employee was a concurring or contributing cause of the disability or death, but compensation was awarded because the injury received in the course of employment concurred with the disease in causing the disability or death cmd was therefore a producing cause.” (Italics ours)

In Maryland Cas. Co. v. Rogers, Tex.Civ.App., 86 S.W.2d 867, 871, writ refused, the employee was injured by inhalation of foreign particles into his lungs while grinding fodder. The testimony was to the effect that deceased died from a germ disease, to-wit, pneumonia. The jury found the injury to Roger’s lungs resulted in pneumonia, from which he died. It was there contended that no causal connection was shown to exist between the injury and death of the claimant. The court said: “There must of course be a causal connection between the injury and subsequent death of the employee for the latter to be compen-sable. Here, there was sufficient evidence of an injury to the lungs, followed immediately by symptoms indicating a predisposition to pneumonia, which in fact resulted, death occurring therefrom in just one week from the time of the alleged injury. The cause set in motion on Friday operated continuously through a sequence of events, each flowing naturally from .one to the other, eventuating in death the following Friday.”

We think the situation in that and the instant case is analogous. In the instant case the injury to plaintiff’s lungs was the cause which operated continuously through a sequence of events, each flowing naturally from the other, (burned and irritated lungs — pneumonia—tuberculosis) and eventuating in plaintiff’s disability.

In Consolidated Underwriters v. Christal, Tex.Civ.App., 135 S.W.2d 127, 130, writ refused, Christal died from a cerebral hemorrhage. He had suffered from high blood pressure for a year and a half prior to his death. The jury found that on the day of his death Christal over-exerted himself in handling sacks of rice for his employer, that he was affected by the pre-existing disease of high blood pressure which was aggravated by such over-exertion and from which he suffered a hemorrhage; that such over-exertion was the cause of his injury and was a contributing cause to his death; that the death was caused by the combined effect of such injury and the pre-existing disease of high blood pressure, and that his death was not caused solely by disease. The court said: “Since the jury found on sufficient evidence on the ultimate issues that such over-exertion was the direct producing cause of said fatal hemorrhage and that the death of Shellie Christal was not caused solely by disease, appellant cannot avoid liability by showing a pre-existing disease or that an exaggeration thereof was only such as to make Shellie Christal more predisposed to cerebral hemorrhage as a result of his high blood pressure.”

Also see, Texas Emp. Ins. Ass’n v. Mitchell, Tex.Civ.App., 27 S.W.2d 600, 604; Travelers’ Ins. Co. v. Smith, Tex.Civ.App., 266 S.W. 574, 576; Texas Emp. Ins. Ass’n v. Drews, Tex.Civ.App., 297 S.W. 630, 633; Commercial Standard Ins. Co. v. Noack, Tex.Com.App., 62 S.W.2d 72, 74; Guzman v. Maryland Cas. Co., 130 Tex. 62, 107 S.W.2d 356; Texas Emp. Ins. Ass’n v. Parr, Tex.Com.App., 30 S.W.2d 305, 308; Norwich Union Ind. Co. v. Smith, Tex.Com. App., 12 S.W.2d 558, 561; Barron v. Texas Emp. Ins. Ass’n, Tex.Com.App., 36 S.W.2d 464; Traders & General Ins. Co. v. Jaques, Tex.Civ.App., 131 S.W.2d 133; Texas Emp. Ins. Ass’n v. Watkins, Tex.Civ.App., 135 S.W.2d 296, 299.

The assignments supporting said contentions are overruled.

Appellant’s sixth assignment is that the uncontradicted evidence shows that defendant’s insurance policy did not cover plaintiff’s injury because the policy covered the employees of Storey, Friebele & Duf-fey, “whereas the uncontradicted evidence shows that the plaintiff at the time of the alleged injury, was an employee of Storey, Friebele & Duffey, and the Houston & West Texas Oil Company * * *.”

The policy did cover the employees of Storey, Friebele & Duffey. The evidence showed that the McClintic lease was owned by Storey, Friebele & Duffey and said Houston & West Texas Oil Company. The injury did not occur on the McClintic lease. There was ample evidence that at the time of plaintiff’s injury he was working on the Cowden lease as an employee of Storey, Friebele & Duffey. The assignment is overruled.

Special issues Nos. 1, 4 and 8, and the jury’s answers thereto were as follows :

“Special Issue No. 1. Do you find from a preponderance of the evidence that the plaintiff, A. N. Wright, sustained personal accidental injuries on the 21st day of November, 1933 ? Answer yes or no-. Answer Yes.”

“Special issue No. 4. Do you find from a preponderance of the evidence that the plaintiff A. N. Wright was totally incapacitated for work as a result of his said injuries, if any, received on November 21, 1933? Answer yes or no. Answer: Yes.”

“Special Issue No. 8. Do you find from a preponderance of the evidence that the injuries, if any, sustained by plaintiff on November 21, 1933, resulted in the partial incapacity of plaintiff, A. N. Wright, for any length of time? Answer yes or no. Answer:' Yes.”

The court defined “injury”, “personal injury” and “accidental injury” as well as “injuries sustained in the course of employment.” The defendant objected to special issue No. 1 because “as framed it was too vague, general and indefinite, and should be reframed so as to confine the jury to those injuries pleaded by- the plaintiff and supported by proof * * The court’s failure to sustain said objection is made the basis of defendant’s proposition No. 7. Like objections were made to issues 4 and 8, and the court’s failure to sustain the said objection to said respective issues is made the basis for defendant’s propositions 8 and 9.

We do not find any evidence as to injuries which is ' without support in the pleadings. We think it is true, as contended by defendant, that plaintiff’s incapacity is shown to have resulted immediately from tuberculosis. The real controversy in the case was whether or not plaintiff’s incapacity, if any, resulted solely from tuberculosis, independently of the inhalation of gas, or whether plaintiff’s incapacity was caused by tuberculosis resulting naturally from the injury. The objection to issue No. 1 was very general and did not advise the court as to what injuries defendant desired the court to inquire about in the issue, or as to what injuries, either alleged or proved, the defendant desired eliminated from the issue submitted. There was only one “accidental injury” alleged or supported by evidence, to-wit, that caused by inhalation of poisonous gas by plaintiff on November 21, 1933. We observe no material difference .between the situation in this case and that in Southern Underwriters v. Parker, Tex.Civ.App., 129 S.W.2d 738, writ refused, with reference to the point under investigation. In said case Parker alleged injury to his lungs by gas resulting in his incapacity. The issue there submitted was: “Do you find from a preponderance of the evidence that plaintiff, J. G. Parker, sustained personal injuries on the 18th day of April, 1937?” The same objection was urged to the issue as is urged in the instant case. The objection was overruled and such action was assigned as error. The judgment was affirmed. The Supreme Court refused a writ of error. Such action under similar circumstances was held not to be reversible error in the following cases: Maryland Cas. Co. v. Jackson, Tex.Civ.App., 139 S.W.2d 631, 635; Southern Underwriters v. Cooper, Tex.Civ.App., 138 S.W.2d 563, 567; Southern Underwriters v. Thomas, Tex.Civ.App., 131 S.W.2d 409, 411; Federal Underwriters Exchange v. Rigsby, Tex.Civ.App., 130 S.W.2d 1105, 1107; Federal Underwriters Exchange v. Carroll, Tex.Civ.App., 130 S.W.2d 1101, 1103; Southern Underwriters v. Kelly, Tex.Civ.App., 110 S.W.2d 153, 156.

If the objection to the issue should be deemed sufficient to point out to the trial court the error, if any, complained of, so that it -might have reframed the issue, and if said issue is deemed erroneous, we think the judgment should not be reversed since it is plain that the defendant was not surprised nor injured thereby, nor was such action reasonably calculated to effect such result. Southern Underwriters v. Kelly, supra; Traders & General Ins. Co. v. Offield, Tex.Civ.App., 105 S.W.2d 359; Southern Underwriters v. Sanders, Tex.Civ.App., 110 S.W.2d 1258; Texas Emp. Ins. Ass’n v. Hamor, Tex.Civ.App., 97 S.W.2d 1041; Associated Indemnity Corp. v. Baker, Tex.Civ.App., 76 S.W.2d 153.

Complaint is made of the use of the words “has or will” in issues 7 and 11 inquiring as to the length of incapacity or disability upon the ground that the use of said words makes said issues multifarious and .duplicitous. We have heretofore overruled said contention. Maryland Cas. Co. v. Foote, Tex.Civ.App., 139 S.W.2d 602, 605, writ refused.

We have examined all of appellant’s assignments of error and have concluded that reversible error is not shown.

The judgment is affirmed.


author: NORVELL, Justice.

text:
    PLOCEK et al. v. WELHAUSEN et al.
    No. 10975.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1940.

      T. J. Newton, Sr., of San Antonio, for appellants.
    B. W. Teagarden, of San Antonio, for appellees.
   NORVELL, Justice.

This is an appeal from an order of the District Court of LaSalle County refusing to grant a temporary injunction upon the verified petition of appellants. Notice of the application for the temporary injunction was not given to appellees. The petition contained no prayer that notice issue, but requested that the injunction issue upon appellants’ verified bill alone. The record here consists of appellants’ petition and the court’s order thereon.

From the bill it appears that appellants are residents' and qualified voters of Election Precinct No. 2, Commissioners’ Precinct No. 3, of LaSalle County. Appellees are the County Judge and three of the County Commissioners of LaSalle County, and two individuals designated as election judges for Voting Precinct No. 2, for the forthcoming General Election to be held on the fifth day of November, 1940. It is alleged that these election officials were appointed as such by an order of the Commissioners’ Court of October 14, 1940. The legality of these appointments is attacked because the same were not made at the February, 1940, term of the Commissioners’ Court, Article 2937, Vernon’s Ann. Civ.Stats., it being further alleged that “said Commissioners’ Court had theretofore regularly appointed a judge of the election to be held November S, 1940, in said voting precinct, and said Election Judge has not been disqualified, and has not failed or refused to act, and further the law provides for the method of supplying a judge in the event of the failure or refusal to act, or the disqualification of the judge theretofore regularly appointed by the Commissioners’ Court.”

Appellants also pleaded that the Commissioners’ Court of LaSalle County had, by order of October 14, 1940, changed the polling place of Voting Precinct No. 2, from the Sauz Ranch, where it existed at the time of the 1938 General Election, to the Buckholt School, also situated in said precinct. It is asserted that this action is in violation of the provisions of Article 2933, Vernon’s Ann.Civ.Stats., and consequently void.

The petition contains no allegations that the orders of October 14, 1940, were the result of fraud or an abuse of discretion on the part of the Commissioners’ Court. It is simply contended that such orders were passed in violation of statutory provisions.

The prayer of the petition was for the immediate issuance of a temporary injunction restraining the Commissioners’ Court from putting into effect the orders of October 14, 1940, and restraining the election. judges designated in one of said orders from acting under said appointment in the general election. Appellants also prayed that upon hearing the injunction be made permanent.

It is well settled that an appellate court will not disturb the judgment of a trial court granting or refusing a temporary injunction unless it is shown that the trial court has abused its discretion. Southwestern Greyhound Lines v. Railroad Commission of Texas, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235; Tyrrell & Garth Inv. Co. v. City of Highlands, Tex.Civ.App., 44 S.W.2d 1059; 24 Tex.Jur. 313, § 253.

The issuance of a temporary injunction without notice is not favored by the Texas courts. A pressing necessity and imminent injury must clearly appear. If a temporary restraining order will suffice, a temporary injunction should not issue. McCorkel v. District Trustees of Robinson Springs School District, Tex.Civ. App., 121 S.W.2d 1048; Texas Centennial Central Exposition v. Greenwood, Tex. Civ.App., 94 S.W.2d 813; 24 Tex.Jur. 175, § 129.

In determining, the sufficiency of a petition to support the issuance of an injunction upon an ex parte hearing, the petition must be construed strictly against the petitioner. Gillis v. Rosenheimer, 64 Tex. 243; Eclipse Oil Co. v. McAlister, Tex.Civ.App., 103 S.W.2d 420; 24 Tex. Jur. 242, § 186.

Applying the above rules to the case at bar, we are of the opinion that the record would not support a finding that the trial court abused its discretion in refusing the temporary injunction.

We do not construe Article 2933 as prohibiting a Commissioners’ Court from designating a polling place for a voting precinct after the end of the August term of an election year. This article relates to establishment of voting precincts by the establishment of the boundary lines thereof, and does not relate to the designation of the place where the voters shall cast their ballots therein. There is no contention made here that the Commissioners’ Court in designating a public schoolhouse acted with the fraudulent desire to deprive any person of his legal rights, or that the change was made surreptitiously with the intent of deceiving any voter in regard to the location of the polling place. There is a vast difference in the change of a boundary line of a voting precinct and a change in the polling place. It may be necessary that a new polling place be designated after the expiration of the August term of the Commissioners’ Court, because of the destruction of the building which had formerly been designated, or the refusal of the owner of the building to allow it to be further used for voting purposes or perhaps for many other reasons. It seems therefore that the Legislature may have well made a distinction between the establishment of the boundary lines of a district and the location of the polling place therein. In this case, the polling place was changed to a public building, and the trial court may have well concluded that such change was made in accordance with the provisions of Article 2932, Vernon’s Ann.Civ.Stats. We can not say that the trial court abused its discretion in refusing to restrain appellees from using the schoolhouse as a polling place, under the Commissioners’ Court order of October 14, 1940.

We have quoted appellants’ allegations relating to the appointment of an election judge, prior to the appointment of two -of appellees on October 14, 1940.

We do not construe Article 2937, Vernon’s Ann.Civ.Stats., as prohibiting the Commissioners’ Court from appointing another election judge after the February term of the Commissioners’ Court, in cases where the person designated at that term subsequently becomes or is found to be disqualified. We overrule appellants’ contention that in such a situation, the election judges can only be selected by the voters under the provisions of 3001, Vernon’s Ann.Civ.Stats. This article is plainly an emergency provision. It seems to us that it is the duty of the Commissioners’ Court in the interest of proper preparation for orderly elections to fill all vacancies which might occur in the group of election officials after their appointment at the February term. From the fact that the Commissioners’ Court made an appointment of election judges on October 14th, it may be inferred that in the opinion of the court a vacancy existed. Appellants pleaded that tha judge theretofore appointed was not disqualified. The trial judge was not, however, upon an ex parte hearing, bound to accept this allegation as true. The pleadings suggested an issue which would probably necessitate the determination of a number of fact questions.

The pressing necessity relied upon here to support the issuance of a temporary injunction is, of course, the short period of time remaining before the 1940 General Election.

For all practical purposes a temporary injunction would be tantamount- to a permanent injunction. This being true, it was not error for the trial court to refuse to grant the injunction without notice having been first given to the opposing parties. The judgment of the trial court is affirmed.


text:
    CLASSEN et al. v. BENFER et al.
    No. 10712.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1940.
    Rehearings Denied Nov. 13, 1940.

      Schweppe & Schweppe and Church & Steger, all of San Antonio, for appellants.
    Harry Hertzberg, Marion R. McClana-han, and Duval Edwards, all of San Antonio, for appellees.
   NORVELL, Justice.

In 1918, Adolph Benfer, one of the ap-pellees here, sold and conveyed to appellant, John G. Classen, a tract of land in Bexar County upon which was located the Schuhlmeier Cemetery. Although the deed contains covenants of general warranty, the existence of the cemetery was known to Classen at the time of the sale.

In 1937, Classen procured and paid appellant Memorial Park Company to disinter and remove the bodies buried in the Schuhlmeier Cemetery. These bodies were reintered in the Wetmore Cemetery some miles away.

Appellees here and plaintiffs below were P. W. Benfer, Adolph Benfer and Mrs. Augusta Burkett, brothers and sister. They brought suit for damages against appellants, John G. Classen and Memorial Park Company, alleging that said parties had, without appellees’ consent, removed the bodies of their grandparents, their parents and their sister, Amelia Benfer, from the Schuhlmeier to the Wetmore Cemetery. Trial was to a jury, which in response to special issues submitted found that the bodies of appellees’ parents were not removed, but that the body of the sister was removed and could not now be located in the Wetmore Cemetery. The trial court submitted no issues in regard to the removal of the bodies of appellees’ grandparents. The jury assessed damages of $1,400 against appellants in favor of each of the appellees. Judgment was entered for appellees upon the verdict. Appellants bring the case here on numerous assignments of error. Each appellant submitted a separate brief, but, for the most part, the propositions relied upon by each appellant are similar or identical.

The first group of appellants’ propositions assert that the judgment rendered is excessive as to each appellant. Appellants rely principally upon the case of Tapia v. Zarb, Tex.Civ.App., 70 S.W.2d 464, decided by this court, in which it was held that the testimony of a third person, that the plaintiff was “lying in bed, or sitting in a chair,” and “looked sick,” was insufficient to support an award of actual damages for mental anguish resulting from the removal of the body of plaintiff’s husband. That case is not in point here. An extensive discussion of the testimony introduced upon the trial could serve no useful purpose. We do, however, point out that testimony of third persons having an opportunity to observe the actions of one claiming damages as a result of a wrongful act is admissible upon the issue of mental anguish. Missouri, K. & T. Ry. Co. of Texas v. Linton, Tex.Civ.App., 141 S.W. 129. Evidence tending to show a close friendly feeling or love prior to the death of the deceased, between the dead person and one asking damages for the wrongful removal of the body of deceased, may also be considered by the jury upon the issue of mental anguish. Such evidence was introduced upon the trial of this case, and was sufficient to support a conclusion that appellees, and each of them, did suffer mental anguish as a result of appellants’ acts. As to the amount of damages, we can not say that the verdict is so clearly excessive as to indicate that the jury “disregarded the evidence or rules of law.” Flores v. De Galvan, Tex.Civ.App., 127 S.W.2d 305, 308. Appellants’ propositions Nos. 1 to 6, inclusive, are- overruled.

Appellants by their seventh proposition assert that this case must be reversed because of improper argument to the jury.

The record discloses that Mr. Harry Hertzberg, one of appellees’ attorneys, made the following argument: “I am not going to refer to him as Uncle, but as Mr. John Classen, because I think Mister is a very good title for any American citizen. I do not know why he should be made a hero of by his counsel because he did this thing. The whole plea has been what a good man he is; what a fine man he is. You know he would not harm anybody on the face of the earth. Well, I want to tell you, Gentlemen of the Jury, that he has gravely injured his fellow-man in this case. I personally can think of nothing more terrible happening except one or two things possibly than what has happened here, — one would be the murder of one’s living relative, or the defilement of a female member of the family; and after that, Gentlemen, I can think of nothing worse than to do the thing that we charge here he has done, if he did it.”

Appellants objected, and the trial court instructed the jury to “disregard the statement with reference to murder and defilement of a female member or relative of the family.”

This proposition does not present reversible error. The reference to murder or defilement of a female relative may have been extravagant, but counsel plainly stated a matter of personal opinion. The argument is not outside the record, and for that reason the situation presented here differs from that present in the cases cited by appellants, such as Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946, and Woodard v. Texas & Pac. Ry. Co., 126 Tex. 30, 86 S.W.2d 38. In arguing cases to a jury attorneys are allowed a comparatively wide latitude in the drawing of inferences and construction of arguments, so long as they do not attempt to state purported facts not disclosed by the record. Corn v. Crosby County Cattle Company, Tex.Com.App., 25 S.W.2d 290; 41 Tex.Jur. 772 and 797.

We are further of the opinion that if the argument be considered improper, all prejudice resulting therefrom was removed by the trial court’s instruction to the jury. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054.

Appellants’ seventh proposition is overruled.

Appellants’ next group of propositions complain of the court’s charge to the jury, especially in regard to a special instruction given in connection with the issues relating to damages. This instruction is probably incorrect as an abstract matter of law, but we are not authorized to reverse a case unless an error is specifically pointed out by an assignment of error and accompanying propositions in this court, supported by a record affirmatively showing that the error urged was called to the attention of the trial court. Appellants here say the court below erred in failing to define the term “mental pain and suffering”; that the instruction given was on the weight of the evidence, and when taken with its connected issues, rendered such issues multifarious.

In appellants’ propositions, it is asserted that as mere disappointment, anger, resentment, or injury of feelings do not constitute mental pain and suffering in law, the trial court should have so instructed the jury. Their complaint therefore relates, not to a definition, but to the failure to give a special instruction. As no such instruction was requested of the trial court, a reversible error is not presented here. Carle Oil Co. v. Owens, Tex.Civ.App., 134 S.W.2d 411; Enterprise Co. v. Ellis, Tex.Civ.App., 98 S.W.2d 452.

Appellants’ complaint about the special instruction of the trial court, being a charge on the weight of the evidence, is based upon an objection made in the trial court that the charge was on the weight of the testimony in that there was no evidence showing any actual damages were suffered by appellants. This objection was insufficient to point out to the trial court an error in charging upon the weight of the evidence. Ford Motor Co. v. Maddin, 124 Tex. 131, 76 S.W.2d 474.

It also appears that the objection made in the trial court upon which appellants’ contention of multifariousness is based, was simply that each appellant “objects and excepts to the submission of question No. 13 (14) (15), of the Court’s Charge for the following several reasons, to-wit: (a) Because said issue is multifarious.”

This objection is too general to be considered. Karotkin Furniture Co. v. Decker, Tex.Civ.App., 32 S.W.2d 703, affirmed, Tex.Com.App., 50 S.W.2d 795; Panhandle & S. F. Ry. v. Friend, Tex.Civ.App., 91 S.W.2d 922.

Appellants’ propositions Nos. 8 to 16, inclusive, are overruled.

In the next four propositions appellants assert that the case should be reversed because the issue of whether or not appellants suffered mental pain and suffering was not submitted to the jury. No request was made for the submission of such issue, 'and it will therefore be presumed upon appeal that such issue was found by the trial court so as to support the judgment. As above pointed out, we have held that the evidence is sufficient to support a finding that appellants did suffer mental pain and suffering as a result of the removal of their sister’s body. The existence of mental pain and suffering on the part of appellants was not an independent ground of recovery.

Appellants’ propositions Nos. 17 to 19, inclusive, are overruled. Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79.

Appellants’ 20th proposition, asserting that as appellees failed to show actual damages other than those resulting from mental pain and suffering, the judgment must be reversed, is also overruled. Flores v. De Galvan, supra.

Appellants’ 21st proposition raises the question of the sufficiency of the evidence to support the jury’s finding that it is now impossible to identify the location of the remains of Amelia Benfer in the Wet-more Cemetery. The evidence on this issue is conflicting and we therefore can not disturb the jury’s finding. 3 Tex.Jur. 1096.

In their 22nd proposition, appellants contend that the trial court erred in instructing the jury that it would consider the deed from Adolph Benfer to Classen for certain limited purposes. We have concluded that the deed was pertinent only to those matters designated in the trial court’s instruction, and therefore no error is presented.

The 23rd proposition of appellant Memorial Park Company, and the 36th proposition' of appellant Classen are identical, and both assert that the damages awarded were, in legal effect, exemplary in nature rather than actual, and therefore can not be sustained upon the record. These propositions are without merit and overruled.

The brief of the appellant John G. Classen contains twenty-one additional propositions of law. Twenty of these, in effect, contend that Classen is not liable to plaintiff because he had an agreement with his co-appellant whereby the Memorial Park Company agreed to effect the removal of the bodies in the Schuhlmeier Cemetery in a legal manner and to save Classen harmless from any liability that might result therefrom. A discussion of these various propositions in detail would unduly lengthen this opinion. All of them have been examined by us and found to be without merit and are accordingly overruled. Whatever the effect of the alleged agreement may be as between Classen and the Park Company, it would not affect Clas-sen’s liability to appellees. The evidence conclusively shows that he procured the removal of the bodies, and contracted with the Memorial Park Company to accomplish that purpose.

In his 44th and last proposition, appellant Classen contends that the trial court erred in refusing to submit a requested issue upon the question of liability as between Classen and the Memorial Park Company.

The judgment rendered by the trial court contains the following provision: “And the Court further being of the opinion that under the pleadings and the verdict of the Jury, neither of the defendants, John G. Classen nor Memorial Park Company, should recover upon their respective cross-actions against each other, it is therefore, Ordered that the relief prayed for by each of them in their respective cross-actions is hereby fully denied, but this judgment shall not in any manner affect the right of contribution of either of said defendants against the other for any amounts that either of them should pay or be required to pay upon this judgment, but that said right of contribution of each of said defendants against the other shall be and remain in full force and effect.”

No appeal was perfected from this part of the judgment. The Memorial Park Company was not named as an obligee in an appeal bond filed by Classen. We therefore can not consider the proposition. Randle v. Naugle, Tex.Civ.App., 299 S.W. 297.

Having concluded that appellants have shown no reversible error, the judgment of the trial court is affirmed.


author: BLAIR, Justice.

text:
    SOUTHERN UNDERWRITERS v. WADDELL.
    No. 8927.
    Court of Civil Appeals of Texas. Austin.
    Oct. 23, 1940.

      Will R. Saunders and Henry D. Akin, both of Dallas, for plaintiff in error.
    Clyde Vinson and Dennis B. Patton, both of San Angelo, for defendant in error.
   BLAIR, Justice.

This is a workmen’s compensation case. It arose as a statutory appeal from an award by the Industrial Accident Board, the appeal being, as concerns this appeal, by the injured employee, A. M. Waddell, referred to herein as appellee. He alleged and the jury found that he was injured in the course of his employment with Whit-ham Construction Company, which was covered by a policy issued by The Southern Underwriters, herein referred to as appellant ; and upon the jury’s further answers to special issues a lump sum judgment for $4,683.83 was rendered in favor of appel-lee; hence this appeal.

Appellant succinctly states six points as showing reversible error, as follows:

“(1) In the conditional submission of the defensive issues of temporary and partial incapacity.
“(2) In placing the burden of proof upon the defendant to establish the affirmative of its defensive issues, instead of placing the burden of proof upon the plaintiff to establish the negative thereof.
“(3) In assuming that plaintiff was an employee of L. E. Whitham Construction Company, which is a highly controverted issue in this case.
“(4) In rendering judgment for plaintiff in the absence of any proper basis for his rate of compensation.
“(5) In rendering judgment against defendant who only issued a policy of workmen’s compensation insurance to L. E. Whitham Construction Company, when the uncontroverted evidence shows that L. E. Whitham Construction Company and Austin Bridge Company were joint adventurers on the road job on which plaintiff was working.
“(6) In admitting X-ray pictures in evidence which were not shown to have been properly taken and developed and to correctly portray the portion of plaintiff’s anatomy which they purport to portray,”

These points are predicated upon sixteen propositions and twenty-four assignments of error. Some of these propositions must be sustained requiring the cause to be reversed and remanded for another trial. However, in reversing the case, we are compelled to again assess a part of the costs against appellant under the rule announced by this court in Federal Underwriters Exchange v. Simpson, 137 S.W.2d 132, 136, wherein we held that because of “the useless- and inexcusable enlargement of the record,” a part of the costs should be taxed against appellant. This case was tried before our decision in the Simpson case and before the practices condemned had been pointed out. Counsel for the appellant in this case and the appellant in the Simpson case are the same, and if this case had not been tried before the decision in the Simpson case, counsel would have no doubt avoided the practices condemned. Suffice it to say in the instant case that 82 pages of objections and exceptions (some 100 of them) were made to the court’s charge, most of which were the same stereotyped form used in all these cases, and had-no application to any issues in this case, which were comparatively few and simple, although 38 special issues were submitted to the jury. Appellant then filed an amended motion for a new trial, consisting of 43 pages, setting up 255 distinct grounds of error, and by reference and adoption made the 82 pages of objections and exceptions to the court’s charge a part of the motion for a new trial. Of these grounds appellant presented in its brief 24 assignments on 10 pages, which unquestionably present every matter of possible error in the case, and reduce themselves to the, six succinct points of reversible error above quoted. Thus we find that the length of the transcript was unnecessarily increased at léast 115 pages, or at least one-half of the 216 pages of the transcript, and accordingly assess one-half of the cost of same against appellant, the remaining costs to be taxed against appellee.

Passing to the merits we find that by its first two propositions appellant contends that the court erred, as was specifically pointed out by its objections and exceptions to special issues Nos. 12 and 16, in conditionally submitting its defensive issues of temporary and partial incapacity of the injured employee. That is, the court instructed the jury not to answer these issues if it had answered prior issues finding that appellee had suffered total permanent injuries, etc. In compensation cases, the defendant’s general denial puts In issue all phases of plaintiff’s cause of action, which consist of total permanent, temporary total, temporary and partial incapacity, etc.; and where the evidence raises ány such issue, the court must affirmatively and unconditionally submit same, and it is reversible error not to do so. Texas Indemnity Ins. Co. v. Thibodeaux, 129 Tex. 655, 106 S.W.2d 268; Wright v. Traders & Gen. Ins. Co., 132 Tex. 172, 123 S.W.2d 314; Southern Underwriters v. Wheeler, 132 Tex. 350, 123 S.W.2d 340; Texas Fire & Casualty Underwriters v. Watson, Tex.Civ.App., 126 S.W.2d 496, writ refused; Traders & Gen. Ins. Co. v. Lincecum, Tex.Civ.App., 126 S.W.2d 692; Commercial Standard Ins. Co. v. Davis, Tex.Civ.App., 135 S.W.2d 794, writ dismissed, judgment correct; Id., 134 Tex. 487, 137 S.W.2d 1; Federal Underwriters Exchange v. Hightower, Tex.Civ.App., 142 S.W.2d 963. Two doctors who examined appellee testified that he had a partial permanent disability to his arm, which he claimed to have received from a fall in the course of his employment. As to permanent injury to his head and nervous system, causing loss of memory, listlessness and inability to think, etc., the doctors testified that they found no evidence of such injuries, although in answer to hypothetical questions based upon acts and conduct of appellee, they stated that such injuries could have resulted from the fall of appellee. Thus an issue of fact as to temporary and partial incapacity of appellee was clearly raised by both pleadings and evidence, and should have been affirmatively and unconditionally submitted.

Appellant' specifically obje.cted to special issues Nos. 2, 13, 20, 21, 22, 23 and 25 as improperly placing the burden of proof upon it. These issues each submit an affirmative defense of appellant and the quotation of two of them will suffice to show the error in each issue.

“Special Issue No. 2: Do you find from a preponderance of the evidence in this case that the plaintiff, Waddell, was an employee of Clay C. Simpson, on April 18th, 1936? Answer Yes or No.” Answer: “No”.
“Special Issue No. 20. Do you find from a preponderance of the evidence in this case that the pyorrhea from which plaintiff is suffering, directly and proximately caused the disability, if any, of the plaintiff at this time? Answer Yes or No.” Answer: “No.”

Each issue involved was specifically objected to upon the ground that it required appellant to establish by a preponderance of the evidence the affirmative of each affirmative defense interposed by it, and in each objection appellant pointed out and requested that the burden of proof should be placed upon appellee to establish the negative of each of said issues. There was some evidence tending to support each of these issues, and the court erred in not placing the burden on appellee to prove the negative of each of these issues, because the statute (Sec. 5, Art. 8307, R.S.1925, Vernon’s Ann.Civ.St. art. 8307, § 5) places the burden of proof upon the claimant of compensation, and courts hold that it is error for an issue to place the burden of proof on the defendant to establish the affirmative of its affirmative defenses raised by the pleadings and evidence, rather than upon the claimant or plaintiff to ¿stab-lish the negative thereof. Commercial Standard Ins. Co. v. Noack, Tex.Com.App., 62 S.W.2d 72; R.S.1925, Art. 8307, Sec. 5; Norwich Union Ins. Co. v. Chancellor, Tex.Com.App., 5 S.W.2d 494; Lawler’s Texas Workmen’s Compensation Law, p. 478; Nobles v. Texas Indemnity Ins. Co., Tex.Com.App., 12 S.W.2d 199; Liberty Mutual Ins. Co. v. Boggs, Tex.Civ.App., 66 S.W.2d 787; Hartford Accident & Indemnity Co. v. Leigh, Tex.Civ.App., 57 S.W.2d 605; Traders & General Ins. Co. v. Copeland, Tex.Civ.App., 84 S.W.2d 813; Traders & General Ins. Co. v. Locklear, Tex.Civ.App., 119 S.W.2d 153; Federal Underwriters Exchange v. Arnold, Tex.Civ.App., 127 S.W.2d 972; R.S. 1925, Art. 8306, Sec. 12b; Texas Fire & Casualty Underwriters v. Blair, Tex.Civ.App., 130 S.W.2d 409; Travelers Ins. Co. v. Maldonado, Tex.Civ.App., 89 S.W.2d 300; Texas Employers’ Ins. Ass’n v. Hilderbrandt, Tex.Civ.App., 62 S.W.2d 209; New Amsterdam Casualty Co. v. Rutherford, Tex.Civ.App., 26 S.W.2d 377; Consolidated Underwriters v. Strahand, Tex.Civ.App., 82 S.W.2d 1058; United States Fidelity & Guaranty Co. v. Lindsey, Tex.Civ.App., 66 S.W.2d 419; Petroleum Casualty Co. v. Bristow, Tex. Civ.App., 21 S.W.2d 9; Travelers Ins. Co. v. Giacomino, Tex.Civ.App., 99 S.W.2d 632.

Special issue No. 7 was objected to as assuming that appellee was an employee of L. E. Whitham Construction Company. This vice in the issue may be corrected on another trial, by simply adding the phrase, “if you find that he was an employee of said company,” or by reforming the entire issue to meet the objection.

The point that no proper basis for appel-lee’s rate of compensation was shown has some justification; and we suggest that on another trial this matter be more fully developed. Since we are reversing the case, we pretermit a discussion of the evidence.

We do not sustain the contention of appellant that the uncontroverted evidence showed appellee to be an employee of itself and its partner, Austin Bridge Company, and therefore not covered by the policy covering only the employees of L. E. Whitham Construction Company. Appellee showed that the contract for the construction work was between L. E. Whit-ham Construction Company and the Highway Department. The company listed ap-pellee with the Highway Department and its engineers as its employee, and carried his name on the payroll and paid his wages. This evidence amply supports the jury’s finding that appellee was the employee of the construction company, notwithstanding the fact that there was some evidence of a secret agreement between the company and Austin Bridge Company about the work, and which was made to evade the Highway Department’s regulation concerning such matters. Federal Underwriters Exchange v. Walker, Tex.Civ.App., 134 S.W.2d 388.

Nor. do we sustain the point that X-ray pictures were improperly admitted in evidence. They were taken by the doctor who testified, developed by him, and shown to have been pictures of appellee showing his injuries, and were used by the doctor in connection with his examination of the injuries of appellee and to which he testified.

For the reasons stated, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


author: SPEER, Justice.

text:
    SOUTHERN UNDERWRITERS v. BLAIR.
    No. 14125.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 25, 1940.

      Will R. Saunders, of Dallas, Stinchcomb, Kenley & Sharp, of Longview, and Claude Williams, of Dallas, for plaintiff in error.
    Gullett & Gullett, of Denison, and Webb & Webb, of Sherpian, for defendant in error.
   SPEER, Justice.

This is a workman’s compensation case, instituted by Robert Blair, as plaintiff, against the Southern Underwriters, as defendant, for accidental personal injuries sustained while in the employ of Stroud Cable Tool Drilling Company, a subscriber to workmen’s compensation insurance. In this discussion the parties will carry the same designation as they did in the trial court.

The suit is predicated upon injuries alleged to have been sustained by plaintiff when an open air explosion occurred. Gas had escaped and accumulated around a well where plaintiff was working, and from some unexplained reason it became ignited and he was burned. In view of the points raised by this appeal, we deem it wise to quote the following paragraph of plaintiff’s petition:

“That plaintiff received burns of various degrees, second and third degrees about the arms, face, back and portions of the body. That his vision is interfered with, and he has pains throughout various portions of his body. He received injuries to his nervous system, and has feelings of constriction around his chest, pains in the area of his chest and other parts of his body. That his entire nervous system and each part thereof, is injured, and each and every organ of his body is injured, his sight, his eyes and his hearing. That degeneration is progressive. That each and all said injuries are permanent.”

There were allegations that because of the injuries sustained plaintiff was totally and permanently incapacitated to perform labor as contemplated by the Workmen’s Compensation Act. Alternatively he pleaded: “Plaintiff alleges that he has suffered by reason of said injuries total temporary incapacity to labor; total temporary and partial permanent; permanent partial incapacity to labor and temporary partial incapacity to labor.”

Defendant answered by general demurrer, which was overruled without complaint by it, and by general denial.

Trial was had to a jury on special issues. The verdict was favorable to plaintiff. Judgment was entered for plaintiff for the maximum weekly compensation provided by law for a given number of weeks, which recovery was for less than total permanent disability. A credit was allowed for the sums paid by defendant for fifteen weeks prior to suit. Motion for new trial was •overruled and defendant appealed to the Texarkana Court of Civil Appeals. An equalization order by the Supreme Court places the appeal before us.

First and second assignments of •error complain of the first special issue. The assignments are suppqrted by timely objections to the issue as framed, and by reasons assigned in the motion for new trial.

The special issue No. 1 complained of reads: “Do you find from a preponderance of the evidence that the plaintiff,' Robert Blair, sustained an injury to his body on or about the 24th day of October, 1937?” The answer was: “Yes;”

The objection urged to the issue before it was given is, in substance, that it is too vague, indefinite, uncertain and all-inclusive; that it does not confine the jury’s consideration to the injuries pleaded and upon which there is proof; that the issue does not limit the jury’to a consideration of injuries pleaded by plaintiff upon which testimony was offered; that is, the plaintiff pleaded separately, injuries to various portions of his, body, , there being evidence to support allegations referring to some of those pleaded, but there was no testimony in support of others. In connection with the objections to the charge, as urged, the court was requested to submit an issue inquiring about the injuries pleaded and which had some evidence to support them, in lieu of the one given.

Plaintiff testified that he was burned, when the gas ignited; that he became unconscious immediately and was taken to a hospital; that when he regained consciousness at the hospital they put tannic acid on his face, neck, chest, arms and legs; when asked if they put the'acid on his legs, he said: “Yes, sir. Everywhere I was burned.”

By that part of the petition above quoted it will be observed that he alleged second degree burns “about the arms, face, back and portions of the body.” He did not testify about burns to the back and there were no allegations of burns on the neck, chest and legs, about which he did testify.

Much of the record is taken up with testimony concerning matters that may properly be termed the results of the burns received. It is contended that these results and effects were contributed to by the burns to his neck, chest and legs, which were not mentioned in the petition. Some of the results of his injuries are shown to be, pains in his head, nervousness, cold extremities, perspiring hands and feet, without cause other than the injuries, partial loss of vision and hearing, pains in his stomach, indigestion, loss of appetite, dizziness, loss of much weight, inability to balance himself when attempting to walk or to stoop over; a lack of co-ordination; that since his injuries he has spells of depression in spirit and of fear. Other witnesses testified to his personal appearance at the time of trial as compared to what it was before the injury; that he was emaciated, had the appearance of having lost much weight, was pale and sallow, whereas he was ruddy, strong and had a good complexion prior to the injury. That after the injury his legs were crooked; that he was suffering from neurosis as a result of the shock.

The jury had all of this testimony and much, more not mentioned by us, from which to make up their verdict in answering the issues submitted.

■ It is fundamentally true that under Article 2211, Vernon’s Ann.Civ.St, the judgment of the court must conform to the pleadings, the' nature of the case proved and the verdict of the jury, if any. The objections made to the issue, wherein it was complained that it was too general, was not limited to the injuries alleged to have been sustained and upon which testimony was offered, but gave the jury an opportunity to consider evidence of other burns and injuries not alleged, together with the effects and results thereof, were amply sufficient to point out the vice in the special issue and to support the assignments of error under consideration. Moreover, as we have stated above, defendant asked the court to give, in lieu of the of-fendj•r$••;¾yj^':‘ne which would limit the jury’s consideration^ and to some extent remove the things objected to by it. The nature of the injuries pleaded, upon which testimony was offered, should have been incorporated in the issue at least in a general way, so that the jury would not become confused as to the specific matter which constitutes the basis of their proper -deliberations and would prevent them from incorporating in their verdict a recovery for an item which was pleaded, yet upon which no testimony was offered. Texas Employers’ Ins. Ass’n v. Pierson, Tex.Civ.App., 135 S.W.2d 550.

We find no pleadings upon which to base the evidence of cold extremities and perspiration without exertion; of stomach trouble; of spells of depressed spirit and fear; of crooked legs resulting from the burns; of neurosis from the shock received, nor of loss of weight or appetite, nor of irregular blood pressure and subnormal temperature. These and other things were testified to upon the trial without foundation in the pleadings.

The liberal rule of construction enjoined upon our courts, when the Workmen’s Compensation Act is involved, cannot be extended so as to .embrace all other well defined rules of evidence and pleading. To do so would establish an intolerable chaotic condition in our jurisprudence. Recovery of compensation is purely by virtue of the statutes known as the Workmen’s Compensation Act. Articles 8306 et seq., R.C.S., Vernon’s Ann.Civ.St. art. 8306 et seq. The provisions of that Act are to be liberally construed, yet each condition therein set out must be followed to mature a claim for enforcement by the courts. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084; Federal Surety Co. v. Jetton, Tex.Com.App., 44 S.W.2d 923; Traders & General Insurance Co. v. Lincecum, Tex.Civ. App., 126 S.W.2d 692.

What we have said should not be construed to mean that evidence of results flowing from the alleged injuries sustained should not be admitted when there is pleading to support it. This is true for the reason the results and effects of injuries sustained become very material in determining the degree of incapacity to labor sustained by an injured employee. We mean here to hold only that a plaintiff must plead sufficient facts as a basis for the introduction of testimony relied upon for a recovery; and that a special issue when submitted must find support both and evidence before a verdict can be based upon it.

The form of the special issue complained of in this case has been condemned by our courts many times, when the facts are like those developed in this case. New Amsterdam Casualty Co. v. Rutherford, Tex.Civ.App., 26 S.W.2d 377; Traders’ & General Ins. Co. v. Low, Tex.Civ.App., 74 S.W.2d 122, writ refused; Security Mutual Casualty Co. v. Bolton, Tex.Civ.App., 84 S.W.2d 552; Fidelity & Casualty Co. of New York v. Van Arsdale, Tex.Civ.App., 108 S.W.2d 550, writ dismissed; Gamer v. Winchester, Tex.Civ.App., 110 S.W.2d 1190, writ dismissed; Casualty Underwriters v. Lemons, Tex.Civ.App., 114 S.W.2d 333; Southern Underwriters v. West, Tex.Civ.App., 126. S.W.2d 510, writ refused; Federal Underwriters Exchange v. Arnold, Tex.Civ.App., 127 S.W.2d 972, writ dismissed, correct judgment; Traders & General Ins. Co. v. Watson, Tex.Civ.App., 131 S.W.2d 1103, writ dismissed, correct judgment; Petroleum Casualty Co. v. Schooley, Tex.Civ.App., 131 S.W.2d 291, writ dismissed, correct judgment; Texas Employers’ Ins. Ass’n v. Pierson, Tex.Civ.App., 135 S.W.2d 550; Texas Employers’ Ins. Ass’n v. Watkins, Tex.Civ.App., 135 S.W.2d 296; Southern Underwriters v. Wright, Tex.Civ.App., 142 S.W.2d 297.

For cases in which the issue here complained of has been approved, plaintiff cites us to Southern Underwriters v. Kelly, Tex.Civ.App., 110 S.W.2d 153, writ dismissed; Southern Underwriters v. Parker, Tex.Civ.App., 129 S.W.2d 738, writ dismissed; Southern Underwriters v. Thomas, Tex. Civ.App., 131 S.W.2d 409, writ dismissed, correct judgment; Maryland Casualty Co. v. Jackson, Tex.Civ.App., 139 S.W.2d 631, writ dismissed, correct judgment.

We have carefully read the above authorities, and if we properly understand the points decided, they are not in conflict with those cited by us.

In the Kelly case, supra, the action was for a single injury sustained to the back; there being no more than one injury plead and no evidence of any other proved, there was no chance for the jury to be confused or misled by the issue submitted, which was similar to one here under consideration.

The Parker case, supra [129 S.W.2d 740], involved a multiple of alleged injuries, to his eyes, nose, throat and respiratory organs, by the.inhalation of poisónous gas. The issue submitted and attacked was like the one involved in the present case. It was held that no error was presented and in reasoning upon the point, the court said: “There is no complaint that any evidence was introduced of an injury not supported by the pleading, nor of any injury other than those sustained on April 18, 1937. * * * There was no evidence of any injury not alleged.”

The Jackson case, supra, involved a similar issue to the one before us against which objections and exceptions were overruled by the trial court. The opinion does not indicate that it was contended evidence was adduced upon facts not alleged, nor that any of the alleged facts were not proved. The court held that on authority of the Kelly and Parker cases, supra, the assigned error was overruled. We take it that the facts were substantially the same as the two cases relied upon, and' above discussed by us.

The Thomas case, supra, involved an injury to an employee when part of a drilling machine broke; a portion of the machinery struck plaintiff and cut a place on his head, fractured his shoulder blade and bruised his left side. The court submitted an issue inquiring whether or not plaintiff sustained personal injuries in Orange County, Texas, on a named date; this question was followed by inquiries of whether or not such injuries were sustained in the course of his employment and whether or not they were accidental. The exceptions and objections to the first issue were based upon the theory that it was too general, vague and did not confine the jury to a consideration of those injuries alleged and upon which testimony was offered. There was a plea by plaintiff that his skull was fractured by the blow on his head, but no testimony was offered in support of that allegation. The Appellate Court overruled the assignment of error and gave as a reason for its holding that appellee (insurance carrier), “requested a number of special issues, several of which were given, inquiring in the same general terms as to plaintiff’s ‘injuries’ and ‘disabilities’ without limiting them in any way to matters plead and proved. It [the carrier] is,, therefore, not in position to urge error against other issues given by the court, in the same form. 3 Tex.Jur. 1033; American Mutual Liability Ins. Co. v. Thomas, Tex.Civ.App., 35 S. W.2d 232; Millers’ Indemnity Underwriters v. Schrieber, Tex.Civ.App., 240 S.W. 963.” [131 S.W.2d 411.] The court in the case quoted from recognized in the opinion the cases holding to the contrary, but stated there may have been facts involved in those cases which justified the- holding; nevertheless the court expressed its own opinion under the facts before it, as being sufficient to justify overruling the contention of appellant.

As indicated by us, there ⅛ a clear distinction between the facts involved in the cases cited and relied upon by plaintiff (ap-pellee here) and those which we have cited in support of our conclusions that there was reversible error shown in the special issue complained of in this case.

Defendant’s third assignment of error complains of the submission of Special Issue No. 18, conditioned upon the answer given to No. 17. Plaintiff counters with the propositions that (1) defendant did not plead any matter that would entitle it to an affirmative submission of the issue, and (2) the court having failed to charge or submit an issue upon the point involved, defendant cannot be heard to complain, since it did not prepare and request the giving of a correct issue.

Some of the medical testimony adduced, clearly indicated that plaintiff was suffering with neurosis, a condition of the mind produced by nervous shock. On cross examination plaintiff testified that he had received, some months before the date of the injuries complained of, an electrical shock by coming in contact with a live wire; that he was rendered unconscious, was taken to a hospital, where he remained four or five days, although not confined to his bed all that time, and that he was unable to work for four or five weeks after receiving the shock. A physician who testified at plaintiff’s instance said that such a shock as that testified to by plaintiff, that disabled him from work four or five weeks, might produce the same condition that he found plaintiff in at the time of trial, and that in all probability it would do it. Doctors Mays and Watkins, introduced by defendant, testified to the same.

Special Issue No. 17 was:

“Do you find from a preponderance of the evidence that the disability of plaintiff, if any, after October 24th, 1937, was not caused solely by an electrical shock sustained by the plaintiff in March, 1937?”
“If you find from a preponderance of the evidence that the disability, if any, of the plaintiff was. not caused solely by said shock, let the form of your answer be: ‘Disability, if any, is not caused by said shock’; otherwise you will answer: ‘Disability, if any, is caused by said shock.’ ” The answer was: “Disability, if any, was not caused by said shock.”
“If you have answered Special Issue No. 17, ‘Disability, if any, is caused by said shock’, then answer the following issue, but if you have answered, ‘Disability, if any, is not caused by said shock’, then you need not answer the following issue:
“Special Issue No. 18. Do you find from a preponderance of the evidence that the disability of the plaintiff, if any, is not caused partially by an electrical shock, received by plaintiff in March, 1937?”

Special Issue No. 17 being answered as it was, and with such conditional submission of Issue No. 18, no answer was required and none was given.

Under Article 8306, section 12c, Vernon’s Ann.Civ.St., it is provided: “If an employé who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries, or their effects have contributed, the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employé had there been no previous injury.”

The general denial of defendant in this case put in issue all of the material allegations of plaintiff’s petition, and was sufficient to entitle defendant, as carrier of compensation insurance, to prove and have submitted to the jury any defensive matter that tended to defeat the claimant’s cause of action, or to show that the disabilities claimed by plaintiff originated in other causes. 45 Tex.Jur., sect. 294, pp. 808 and 809.

Under the answer and the testimony referred to above, defendant was entitled to have this defensive matter submitted to the jury, unconditioned upon an answer that should be given to Special Issue No. 17. It will be observed that by Issue 17, inquiry was made if the electrical shock received in March, 1937, was the sole cause of plaintiff’s disability. By its answer, the jury said it was not. Because of that answer the jury was told not to answer Issue No. 18, which inquired if the electrical shock did not partially cause the disability of plaintiff. If there had been a finding that disability was partially caused by the electrical shock, defendant would only have been liable to compensate plaintiff for such amount as resulted from the subsequent injury sued for in this ■ case. Worded as the two issues were, it would have been difficult for the jury to have given contradictory answers. The answer made to Issue No. 17, by no means meant that the shock did not partially cause plaintiff’s disability.

Plaintiff’s contention that because defendant failed to prepare and request the giving of a proper issue, it cannot complain at this time because none was given by the court, is unsound and not applicable to the situation before us. We have seen that the court in fact did prepare and submit the issue of whether or not the previous injury partially contributed to plaintiff’s present disability, but as shown it was required to be answered only if Issue No. 17 was answered in a specified way. The Supreme Court has decided the question against plaintiff’s contention. In Gulf, C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183, cited by plaintiff, it is held that where the trial court has attempted to submit an issue but does it defectively or erroneously, then an objection and exception to .the submission is sufficient to preserve the point without preparing a proper charge and a request that it be given. Three other cases cited by plaintiff in support of his counter proposition are based upon the holding in the Conley case, supra, and adhere strictly to the rule there announced.

It is now no longer debatable that each party to a lawsuit in this state is entitled to have submitted to the jury all fact issues supported by pleadings and testimony, which affect one’s right of recovery or of the other’s defense. The point was definitely settled by our Supreme Court in Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517. Other Supreme Court decisions to the same effect and applied to workmen’s compensation cases are: Texas Employers’ Ins. Ass’n v. Phillips, 130 Tex. 182, 107 S.W.2d 991; Wright v. Traders & General Ins. Co., 132 Tex. 172,123 S.W.2d 314; Texas Indemnity Ins. Co. v. Thibodeaux, 129 Tex. 655, 106 S.W.2d 268; Southern Underwriters v. Wheeler, 132 Tex. 350, 123 S. W.2d 340. See also 41 Tex.Jur., sect. 280, p. 1116, and cases cited. The error complained of is sustained.

Assignments of error five and six complain of the action of the court in permitting plaintiff to file a trial amendment and in not permitting defendant to withdraw its announcement of ready and a postponement of the trial. These are matters addressed to the sound discretion of the trial court and absent a showing of an abuse of that discretion we are not called upon to review it. In any event, since the case must be reversed for the reasons before set out, these assignments become unimportant.

Assignments of error seven and eight challenge the action of the trial court in refusing to submit defendant’s two requested issues concerning the evidence given by Doctors Pierce and Mays, who testified at the instance of plaintiff. Each of the doctors testified that when they made examinations of plaintiff they took a history of his case from him; their testimony was in response to hypothetical questions propounded. Dr. Pierce said some of the conclusions reached by him in his diagnosis were based upon the subjective symptoms. The court instructed the jury not to consider any expert testimony by a physician based' on' subj ective symptoms.

Defendant requested the court to submit a special issue relative to the testimony of each of the doctors, which, in effect, inquired if the jury found from a preponderance of the evidence that the doctors did not take into consideration the subjective symptoms of plaintiff in arriving at an answer to the hypothetical questions propounded to them by plaintiff’s counsel.

We think there was no error in refusing to give the requested charge. The qualifications of an expert witness and the nature of the testimony he is permitted to give are governed and controlled by the court, under well settled rules of procedure. Montgomery Ward & Co., Inc. v. Levy, Tex.Civ. App., 136 S.W.2d 663, writ denied, correct judgment. After hearing the doctors testify and having been examined by defendant’s counsel with regard to what they considered in giving their respective answers, the court permitted their testimony to go to the jury. It was not a proper subject for the jury to determine whether or not the expert witnesses had testified to facts which would render their opinions inadmissible. It is the generally recognized rule in this state that a physician who testifies as an expert must base his opinion upon certain things, some of which are, his own knowledge obtained by physical examination and treatment of the patient, facts proved upon a trial and related to him in the form of hypothetical questions and he may give his professional opinion, based upon both his own observations and evidence adduced at the trial. He may not base an opinion as an expert either in whole or in part upon subjective symptoms found, they being the things told him by' the patient, while being examined, by a physician for the purpose of testifying- as an expert witness. Such things are no less hearsay when they come from a doctor than if from a layman. 17 Tex.Jur., sect. 245, p. 588, and cases cited. See also Republic Underwriters v. Lewis, Tex.Civ.App., 106 S.W.2d 1113, and Traders & General Ins. Co. v. Chancellor, Tex.Civ.App., 105 S.W. 2d 720, writ dismissed, correct judgment, and authorities collated there.

For the reasons shown, we are sustaining assignments of error one, two and three; others are overruled. In view of these conclusions, the judgment of the trial court is reversed and the cause is remanded for another trial. It is accordingly so ordered. ' ' '


author: ALEXANDER, Justice.

text:
    HARRIS et al. v. WARE. SAME v. KEOUN.
    Nos. 1706, 2143.
    Court of Civil Appeals of Texas. Waco.
    Nov. 14, 1940.

      W. L. Eason, of Waco, for appellants.
    J. W. Spivey, of Waco, for appellee.
   ALEXANDER, Justice.

In the above cause (No. 1706), T. H. Keoun, as executor of the estate of G. W. Ware, deceased, has filed in this court an original application to recall an execution for costs issued by the clerk of this court on the ground that the amount demanded under the execution is excessive.

The facts as shown by the sworn pleading and the records in this court are as follows: In 1934, G. W. Ware recovered a judgment in the 19th District Court in cause No. 32682 against Mrs. C. M. Harris and others for the sum of $1,000, with foreclosure of a certain lien. Upon appeal to this court, the judgment for debt was affirmed but the judgment for foreclosure of lien was reversed and foreclosure denied. Ware was adjudged to pay the costs of appeal. Harris v. Ware, Tex. Civ.App., 93 S.W.2d 598. The total costs of appeal then amounted to $181.05. This included an item of $141.50, previously paid by Mrs. Harris for the transcript and statement of facts. Both parties applied to the Supreme Court for writ of error but their applications were refused. Ware was adjudged by the Supreme Court to pay the sum of $8 incurred by him, and Mrs. Harris was adjudged to pay the sum of $10.35 incurred by her, as costs in the attempt to secure writs of error. Thereafter, Ware credited his judgment against Mrs. Harris with the sum of $141.50, that being the amount formerly paid by Mrs. Harris for transcript and statement of facts, and filed a new suit in the 19th District Court, being cause No. 33422, against Mrs. Harris and the sureties on her supersedeas bond on the previous appeal to collect his judgment of $1,000, less the credit of $141.50, which Ware had entered on the judgment. Ware recovered in that suit as prayed. The judgment was affirmed by this court and the Supreme Court refused writ of error. Harris v. Keoun, 135 S.W.2d 194. On October 11, 1940, the clerk of this court issued an execution against Ware and his estate for the collection of all the costs incurred on the appeal in said cause No. 32682, including the $141.50 previously paid by Mrs. Harris for the transcript and statement of facts and the sum of $10.35 incurred by Mrs. Harris in her appeal for writ of error in said original suit. Ware’s executor insists that the execution should be recalled and that the two items last above mentioned should be excluded therefrom.

It is plain that the item of $10.35 incurred by Mrs. Harris in suing out her application for writ of error to the Supreme Court in the original suit should not have been included in the execution against Ware’s estate. Those charges were expressly adjudged against Mrs. Harris by the Supreme Court and have never been adjudged against Ware or his executor by any court.

A little more difficult question arises concerning the item of $141.50 paid by Mrs. Harris for the transcript and .statement of facts. This court, in reforming and affirming the judgment in the original suit, adjudged that Ware should pay this item. Thereafter, Ware undertook to offset this item by crediting his judgment against Mrs. Harris with the same amount. It appears, however, that a judgment debtor cannot, without the intervention of the court, offset the judgment of his judgment creditor with a judgment in his favor against the same party. Such intervention by a court is necessary in order that there may be an adjudication of the question of mutual liability and other equitable rights involved. 26 Tex.Jur. 502; Dallas Joint Stock Land Bank v. Lancaster, Tex.Civ.App., 122 S.W.2d 659, par. 1.

The record discloses, however, that in addition to crediting the judgment against Mrs. Harris with said sum of $141.50 by Ware, the trial court, in entering its judgment in the second suit, took said credit into consideration and deducted same from the amount of plaintiff’s recovery. It is true that Ware did not pray for the offset but he introduced in evidence his judgment containing the credit, and the trial court expressly stated in the judgment that the offset was being allowed. Mrs. Harris made no complaint against the offset at that time. That judgment has never been set aside. It appears therefore that the offset has already been allowed by the trial court.

We are of the opinion that the trial court was the proper forum in which to have the offset adjudicated, notwithstanding the fact that the judgment in cause No. 32682 was affirmed by this court. This is so because the occasion for the offset or credit arose after the judgment had been affirmed in this court and because the trial court is better equipped with the facilities for determining the issues of fact, such as would be involved in such a hearing. Perfection Rubber Co. v. Randle, 115 Tex. 576, 285 S. W. 1060. But if we be wrong in this and it should be held that this court is the proper forum in which to have the offset made, then we see no reason why .it should not be so allowed at this time. ' The facts as heretofore stated are not controverted by Mrs. Harris. Both of the original judgments were affirmed by this court. The judgments and records accompanying them do not disclose any rea-spn why one' of the judgments should not be offset by the other. The judgments appear to be of equal standing and there is no diversity of ownership. No good reasori is apparent why each of the parties' should be required to pursue the circuitous route of collecting his judgment in full from the other when a simple credit entry will adequately settle the difference between them. We therefore hold that Mrs. Harris’ claim for costs in the sum of $141.50 heretofore paid by her is and has been fully settled by the allowance of a credit for a like amount on Ware’s judgment against her.

We are of the opinion that the execution issued by clerk of this court should be withdrawn and a new one issued for the proper amount. The writ has not been levied and hence no liens accruing by virtue of the levy thereof will be disturbed by recalling it. Jackson v. Finlay, Tex.Civ.App., 40 S.W. 427, 429. Since the execution issued out of this court, this is the proper forum in which to have it corrected.

Mrs. Harris contends that Ware’s executor cannot demand recall of the execution until he has tendered the full amount actually due thereon. She cites a line of cases in which it is held that a judgment debtor is not entitled to enjoin the execution of a judgment so long as any part of the judgment is unpaid. Dallas Joint Stock Land Bank v. Lancaster, Tex.Civ.App., 122 S.W.2d 659, 661, par. 7. This is quite different from the question which we . have before us. Certainly a party should not be allowed to enjoin the enforcement of a judgment so long as any part of it remains unpaid, but this is quite different from the right to have a particular execution withdrawn and corrected where it has been issued for an incorrect amount. 23 C.J. 539. While a judgment debtor should not be allowed to enjoin the enforcement of a judgment so long as any part of it remains unpaid, yet he should not be required to sit still and allow his property to be sacrificed on the auction block under an excessive or incorrect execution merely because he cannot tender the amount actually owing on the judgment.

The execution heretofore issued by the clerk is ordered withdrawn and credited with the item of $141.50, plus the item of $10.35 adjudged against Mrs. Harris in the writ of error proceedings.

Mrs. Harris filed a motion herein (Cause No. 2143) on the 4th of November, 1940, to set aside the judgment rendered by the ti-ial court in cause No. 33422 on the ground that in order to secure such judgment Ware’s executor introduced in evidence the judgment affirmed by this court in cause No. 32682 prior to the tirne of the issuance of the mandate out of this court. It is sufficient to say that that question was raised by Mrs. Harris in her appeal of the second suit, and while we did not write on the question, it was overruled by us and writ of error was refused. The question was therefore fully adjudicated upon the former appeal. The judgment in that case was finally determined by this court and a motion for rehearing overruled on January 4, 1940, and a writ of error refused on May 1, 1940. The term of court at which such proceedings occurred expired on October 7, 1940. This court is now without authority to set aside said judgment in response to a motion filed at a subsequent term of this court. R. S. art. 1816, Vernon’s Ann.Civ.St. art. 1816; Gammel Statesman Pub. Co. v. Ben C. Jones & Co., Tex.Com.App., 206 S.W. 931.

Mrs. Harris’ motion to vacate the judg-. ment is therefore overruled.


author: YOUNG, Justice.

text:
    SAVAGE v. DRESSELL.
    No. 12996.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 19, 1940.
    Rehearing Denied Nov. 16, 1940.
    J. P. Miller and Alto B. Cervin, both of Dallas, for appellant.
    Thomas B. Ridgell, of Dallas, for appel-lee.
   YOUNG, Justice.

Mrs. Vera Dressell, as plaintiff in the trial court, obtained judgment against thp estate of J. W. Camplin, for services rendered during the lifetime of decedent, from which W. T. Savage, the administrator, has appealed. As a basis for her suit, Mrs. Dressell alleged the presentment of sworn account to said, administrator, its rejection by him, and subsequent refusal by the Probate Court. This verified demand, attached as an exhibit to plaintiff’s petition and in evidence on the jury trial, recited that 'claim was made against the estate named on an count of nursing and as housekeeper for J. W. Camplin, from December 22, 1936, to date of death on October 10, 1938;' at $100 per month to December 22, 1937, and at $60 per month thereafter. Somewhat ⅛ detail, the account stated the nature oí th¿ services performed arid the justice thereof, in that, about the earlier date,' Mr. Camplin became crippled and bedri.ddenj was confined to his home, where claimant resided, in extending all required services; that said claim was unpaid, was reasonable and just, and sought allowance and approv^ al thereof. Plaintiff then filed suit on her claim, embodying therein the same facts as to the character and extent of the aforesaid labors- rendered on behalf of decedent; alleging that J. W. Camplin had agreed and promised to pay plaintiff the sum" of $100 per month for twelve riionths, at which time the wage was .reduced to $60, continuing at the latter rate until her employer’s death; that the total amount was $1,776, which was due, just, and unpaid, after all legal offsets, payments and credits had been allowed. Further allegations were, that her services as nurse were reasonable and necessary, praying for judgment in full against the estate.

Aside from a plea in abatement, not pertinent here, only a general’ exception was leveled to plaintiff’s petition, which was overruled; followed by general denial and particular facts in the' nature of an offset. It is clear from all the evidence that plaintiff-rendered certain services to the invalid, Mr. Camplin, and took care of him during the time specified, the administrator contending that Mrs. Dressell was to he paid therefor, not in money, as alleged, but merely in room and board for herself and child, which consideration she had already received. The jury found under the issues' submitted that no express contract existed between the parties for remuneration on the basis of either $100 or $60 per month, but that reasonable compensation for the services performed for deceased was $73.43 per month, over a period of twenty-one months, which sum total, less credits not in dispute, constitutes the court’s judgment of $1,310.24, here under review.

Appellant presents two major law points for our consideration: (1) That issue No. 8, under which the jury found that plaintiff was entitled to reasonable compensation, fixing the amount, was not supported by the pleadings, which declared upon an exrpress agreement alone; in other words, that such petition was entirely insufficient to raise the issue of an implied contract to pay for the services' rendered, or to form the basis of a quantum meruit recovery. (2) That plaintiff, on redirect examination by her counsel, gave testimony touching transactions with the deceased, over defendant’s objection, thus directly infringing the terms of the Death Statute, Vernon’s Ann.Civ.St. art. 3716. On the other hand, appellee asserts that the averments of her petition, founded upon the rejected claim, were adequate and sufficient support for the jury finding on quantum meruit. Appel-lee’s further counter propositions contend, regarding her testimony under Art. 3716, that said statute was waived by defendant’s first going into transactions with the deceased in cross-examination of plaintiff; or, if in error as to this, that the reasonable value of plaintiff’s services, under issue No. 8, was sufficiently supported by other competent testimony.

Plaintiff’s sworn claim, previously disallowed by the statutory officials, became the foundation of her cause of action in the district court. It was attached to the petition as an exhibit, and can be looked to in aid of the nature and import of the allegations there made. 33 Tex.Jur., Pleading, Sec. 16, p. 428. Taken together, we be-lieye these instruments comprehend the elements of an implied agreement to pay for services knowingly rendered, and are sufficient predicate for the issue inquiring the reasonable value thereof. In considering the_ sufficiency of such pleading and exhibit against a general demurrer only, every reasonable intendment should be indulged; and while plaintiff’s statement of her contract implied by law might lack considerably of the allegations that a careful pleader would employ, such want of particularity could have been reached by special exception ; Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031; Greene v. Condor Petroleum Co., Tex.Com. App., 140 S.W.2d 844.

We turn to appellant’s further contention that the provisions of Art. 3716 \0-ere violated by appellee; and the answer thereto, that the statute was waived perforce of the various questions asked plaintiff by counsel for the estate, touching transactions with the deceased. On direct examination of Mrs. Dressell, testifying in her own behalf, such matters were carefully avoided. However, on cross-examination, she was interrogated by the defense on many matters, some of which undoubtedly constituted transactions within the meaning of the statute. These cross-inquiries, for instance, brought forth testimony from the “opposite party” of frequently cashing the old gentleman’s checks for household expenses ; that Mr. Camplin told her she owed no rent for occupying his home; and that deceased, at the hospital, had called for a notary to sign everything over to her. On redirect examination of the lady by her counsel, the questions and answers were as to various household duties performed by her for the deceased, and to a conversation wherein Mr. Camplin had fixed her compensation, first at $100 per month and later, when he improved in health, at "the lesser rate. The testimony just referred to was particularly objected to by appellant, and the terms of the statute invoked. We do not deem it necessary to decide whether the exploration by both parties into transactions with the deceased removed the bar- of the statute, or whether plaintiff’s redirect examination was subject to the objections made. The jury found against plaintiff on issues involving an express contract; i. e., that Mr. Camplin did not promise to pay her any stipulated wage. No definite salary agreement having been found by the jury to exist and testimony from disinterested witnesses being sufficient on plaintiff’s claim of implied contract, the particular conversations with deceased, even if erroneously admitted, must be considered harmless. Dunnagan v. Lackey, Tex.Civ. App., 283 S.W. 927. In fact, the entire record supports no other theory than that Mrs. Dressell’s services for and on behalf of decedent during’ his extended illness were on a compensatory basis; and the evidence, generally, is adequate to raise the issue of the reasonable value thereof. Hence, appellant’s assignments and propositions must be overruled, and the judgment in question affirmed.

Affirmed.