author: FUNDERBURK, Justice.

text:
    The NATIONAL MUT. CASUALTY CO. v. LOWERY.
    No. 1964.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 22, 1939.
    Rehearing Denied Feb. 2, 1940.

      Wagstaff, Harwell, Douthit & Alvis, of Abilene, for appellant.
    Armstrong, Cranford, Barker & Bed-ford, of Galveston, J. D. Barker, of Sweet-water, and Herman Charles, of Portales, N. Mex., for appellee.
   FUNDERBURK, Justice.

Thomas Jefferson Lowery, by way of appeal from an adverse decision of the Industrial Accident Board, brought this suit seeking to recover compensation for allegedly total and permanent disability resulting from hernia sustained by him as an employee of National Tank Company. The National Mutual Casualty Company, compensation insurance carrier for said employer, was the defendant. Plaintiff’s petition (trial pleading), among other things, alleged that “he has been willing at all times and is willing now [file date of pleading, October 10, 1938] to undergo a surgical operation, but the defendant has at all times refused to have him operated on as it is their legal duty to do, and have refused to pay .him any compensation * * * The plaintiff demands of the defendant an operation for said hernia at the expense of said defendant, and said defendant has refused to furnish same unto plaintiff and he is now totally and permanently disabled and is therefore entitled to compensation under the general provisions of the Workmen’s Compensation Act.”

In a jury trial the case being submitted on special issues, all issues were found in favor of plaintiff. Included in the issues so submitted and found, was one inquiring whether “Lowery has at all times since the date of the development of the hernia, if any, been willing to submit to a surgical operation.” Another made inquiry whether “The National Mutual Casualty Company has at all times refused to provide a surgical operation for plaintiff’s said hernia, if any, resulting from the injury, if any, inquired about in special issue No. 1.” Judgment having been' rendered for plaintiff on the verdict awarding recovery of $4,-961.59, the defendant has appealed.

The merit of most of appellant’s assignments of error and propositions thereunder is either wholly dependent upon or materially affected by the proper construction of R.S.1925, Art. 8306, sec. 12b. The general question presented may, we think, adequately be stated thus: Where an employee of an employer subject to the Workmen’s Compensation Statutes sustains an injury consisting of, or resulting in, hernia under the specified circumstances rendering such an injury compensable, and the insurance carrier fails or refuses to “provide * * * surgical treatment by * * operation”, not being excused from doing so by refusal of the employee to submit to such operation, may the employee in a timely suit to set aside an adverse decision of the Industrial Accident Board, upon his claim for compensation, recover for total and permanent disability, if any, resulting from such injury? This question, we think, must be answered in the affirmative.

Hernia differs from other general injuries in two general respects; one being absolute and the other conditional. It differs absolutely in certain required special elements to render the injury compensable. Superadded to the ordinary elements of an injury as defined in R.S.1925, Art. 8309, sec. 1, are (to use the numbering in the statute) these three: (2) appearance of the hernia “suddenly and immediately following the injury” (accident).- (3) Nonexistence of hernia “in any degree prior to the injury for which compensation is claimed.” (4) Pain accompanying the injury. (We have designedly omitted mention of (1) only because the existence of a hernia as an injury is manifestly not special and would have to be shown even if hernia was in no respect different from any other general injury.)

These elements may properly be .regarded as a matter of required special proof of hernia as an injury. The language of the statute is “it must be definitely proven” etc.

The conditional difference between hernia and other general injuries is in the compensation to be awarded. The statute in terms purports to impose upon the insurance carrier the duty to provide an operation. The language of the statute is that “where liability for compensation exists, the association shall provide competent surgical treatment by radical operation.” Unless such operation is provided and the employee submits to the operation and it is a success there is no qualification or abridgment of the rights of the employee to compensation for disability resulting from hernia, the same as any other general injury.

The Industrial Accident Board has potential jurisdiction to determine whether an employee should have an operation for hernia. A prerequisite fact essential, in a particular case, to the exercise of such jurisdiction is the refusal of the employee to submit to such operation. Only when the potential jurisdiction of the Board becomes active by refusal of the employee to submit to an operation is the Board empowered to make any order which can have the effect, in any event, to qualify or restrict the right of the employee to compensation for disability resulting from hernia the same as any other general injury. If the active jurisdiction of the Board be invoked by refusal of the employee to submit to a proffered operation there still is no absolute qualification upon, or restriction of, his right to compensation as for a general injury. If the Board, following the prescribed procedure, decides that the employee should not undergo an operation then the employee (in the language of the statute) “shall, if unwilling to submit to the operation, be entitled to compensation for incapacity under the general provisions of this law.” If the decision of the Board be in favor of an operation and the employee submits thereto but the operation is not a success there results no abridgment of the employee’s right to compensation as for a general injury. If the operation results in death the rights of the beneficiary to claim as for general injury remains unaffected.

The only conditions upon which the em-, ployee may be restricted to compensation different from a general injury are (1) that the jurisdiction of the Board to determine the advisability of an operation be invoked by the fact of the refusal of the employee to submit to an operation; (2) that the Board, exercising such jurisdiction, decide against an operation, but the employee submits anyway and the operation is not a success. (In such case compensation shall consist only of the expenses of the operation and weekly compensation for, one year). (3) That the Board, exercising its jurisdiction, decide in favor of an operation and the employee refuses to submit. (In that case compensation is limited to payment of average weekly wages for 26 weeks).

The statute does not purport to condition any right of the employee upon his making request, or demand, for an opera-' tion. No duty to request or demand an operation we think rests upon the employee and for one very good reason, among possibly others, that the employee would not be expected to know whether he was in need of an operation or not. That would be a matter naturally and primarily for the decision of the insurer’s medical advisers. The statute, we think, clearly implies the intention to give the insurer the right, in the nature of an option, if the facts to be determined as prescribed so warrant, to-substitute a different compensation from that provided for a general injury. In the instant case that optional right has not been-exercised by appellant, nor was s.uch right rendered nonavailable to the appellant by any action of the employee. Such a construction of the statute has been forecast in previous decisions of the courts of this: state, particularly in Texas Employers’ Insurance Ass’n v. Neatherlin, Tex.Com.App., 48 S.W.2d 967; Texas Employers’ Insurance Ass’n v. Henson, Tex.Civ.App., 31 S.W.2d 669, 671, reversed on another ground, Tex.Com.App., 48 S.W.2d 970; Texas Employers’ Insurance Ass’n v. Howell, Tex.Civ.App., 37 S.W.2d 343; Columbia Casualty Co. v. Ray, Tex.Civ.App., 5 S.W.2d 230.

In order to state a cause of action: entitling plaintiff to an award of compensation for total and permanent disability for an injury consisting of hernia he no-doubt considered that it was necessary by affirmative averment to show that his rights had not been limited as said section 12b conditionally provides may be done. To-this end appellee alleged that appellant had-refused to provide for the operation and further that appellee had at all times been willing to submit to an operation. Either averment was sufficient, the purpose being merely to exclude a possible inference from the facts otherwise alleged that he had no right to recover- as for general injury.

Ther.e was no error in admitting evidence to prove said allegations nor in submitting the facts so averred as issues. Some proffered evidence of a refusal of the insurer to provide the operation was excluded, but that 'all such evidence was not excluded is indicated by the fact that the trial judge submitted the issue — an action which presupposes the existence of evidence to support the issue. Evidence that the employee was willing to submit to an operation, together with evidence that no-such operation had been performed, was alone, we think, some evidence of a refusal on the part of the employee to provide for the operation, particularly in the only sense material, namely, that the surgical treatment was not provided nor provision for it excused.

Complaint is made of testimony •of Dr. Martin H. Jansen admitted over ■objections to the effect that (1) hernia ■can result by strain or stress or heavy lifting, (2) that it could have occurred under •a fact situation stated hypothetically to him, and (3) that within a day or two after the injury there would not necessarily be blood, lacerations or swelling where the bernia occurred. There is so little question in our minds of the admissibility of such testimony, given by a duly qualified expert witness, that we deem it unnecessary to •discuss the matter at length. The admissibility of such testimony, we think, is fully •sustained by the decisions of which we need only mention the following: Republic Underwriters v. Howard, Tex.Civ.App., 69 S.W.2d 584; El Paso Electric Co. v. Beckman, Tex.Civ.App., 89 S.W.2d 470; Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581.

The court gave a definition of “injury or personal injury” as “Damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom.” This was objected to, and the admission of the testimony over such objection is here complained of on the ground that there was no evidence that any disease or infection resulted from the injury, if any, and that it was on the weight of the evidence, was confusing to the jury and permitted them to speculate •on injuries of which there was no proof and there was no pleading that there were any “diseases or infection from the injury.” It would seem to be a sufficient answer to say that the definition given is the definition declared in the law itself. Revised Statutes 1925, Art. 8309, sec. 1. Revised Statutes 1925, Art. 2189, requires that the court in submitting special issues shall “submit such explanations and definitions ■of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.” The definition complained of was given conform-ably to this requirement of law. The fact that eminent counsel can seriously question the propriety of giving a statutory definition, where definition or explanation is required, is a subject of interesting speculation. Similar contentions have several times been made in' cases before this court. Traders & General Ins. Co. v. Weatherford, Tex.Civ.App., 124 S.W.2d 423; Liberty Mutual Ins. Co. v. Boggs, Tex.Civ.App., 66 S.W.2d 787; Texas & P. Ry. Co. v. Phillips, Tex.Civ.App., 56 S.W.2d 210. The nature of the objection made furnishes a clue to the answer. The reason is to be found in a failure to appreciate a most important distinction, namely, that the definitions or explanations which said Art. 2189 requires shall be given are not special charges or instructions upon the law of the case which R.S.1925, Art. 2186, provides may be given. Special charges or instructions on the law of the case are not only not required to be given, but under the decisions are prohibited in a case submitted upon special issues. Therefore, the “explanations and definitions of legal terms” required to be given in cases submitted upon special issues and special charges or instructions on the law of the case prohibited from being given cannot, of course, be the same thing. The theory of the objection to the definition in the instant case is that there was no evidence of disease or infection as a part of the alleged injury. Manifestly the principle invoked is that the court should not give a special charge or instruction upon a phase of the case not raised by any evidence. The principle has no application whatever. The meaning of a legal term is not different in different cases. Considering that the jury is not to be concerned with the law of any case when the case is submitted to them upon special issues, they are to be given only, such explanations or definitions of legal terms as are necessary to enable them to make their findings (conclusions of fact) upon the issues of fact submitted. There is simply no ground upon which to base a contention that the same definition of the same legal term used' in the same sense should not be the same in all cases. As we have heretofore pointed out, it may be true that the failure to give all of a statutory definition may not, because of the nature of the evidence, be prejudicial. But it does not follow that it would not be proper to give the definition prescribed by law, or a correct definition whether prescribed by law or not.

We also overrule the contention that there was no evidence that appellee suffered hernia as alleged. It is deemed unprofitable to extend this opinion by setting forth the evidence upon which we reach the conclusion that the evidence raised an issue of fact for the decision of the jury.

We reach the same conclusion Upon the contention that the evidence did not raise issues of fact as to appellee having sustained total and permanent disability as the result of his injury. Also, that the evidence did not raise an issue of fact as to appellee’s average weekly wages.

Being of the opinion that there is no error shown, and that the judgment should be affirmed, it js accordingly so ordered.

On Motion for Rehearing

Appellant’s motion for rehearing, while in no way exhibiting any lack of respect, declares that “The decision in this case outrages our ideas as to the law and equity.” We are not entirely unsympathetic with such a reaction. But, if it results from faults in the law itself, or from interpretations of the law in decisions other than ours, then we think we would not be justified in attempting to correct what may appear to us to be errors of the law-making department, or to parry the effects of decisions of a superior court.

It is insisted that we have held (and erred in so holding) “that when the Industrial Accident Board denies a claim for compensation for alleged hernia, and does not order the compensation carrier to furnish an operation, in order for the compensation carrier not to be liable under the general provisions of the law it must admit liability and tender an operation; and if the employee refuses the operation, in no event can it escape liability under the general .provisions of the law.” It is further insisted that we have held (and erred in so doing) “that when the Industrial Accident Board finds against the employee for an alleged hernia and does not order an operation the compensation insurance carrier in no event can escape liability under the general provisions of the law, and for a general injury.”

The provision of the statute reading “the association shall provide competent surgical treatment by radical operation” undoubtedly imposes a duty, or confers a right or privilege, upon the compensation insurer. Whether it imposes a duty or confers a right or privilege, the existence of such duty, right or privilege is expressly limited to “cases where liability for compensation exists.” About that proposition it would seem there can be no substantial ground for any difference of opinion. Upon this premise it becomes all important to know what is meant by “cases where liability for compensation exists.” Does that language mean (1) cases where liability, if contested, has been finally adjudged, by a court of competent jurisdiction, to exist; (2) or, does it mean cases where the Industrial Accident Board, passing upon a claim for compensation, decides that liability for compensation exists; or (3) does it mean cases where.the compensation insurer, without contest, admits liability, although it may be necessary to litigate connected or incidental questions ? It seems to us that it must mean one or the other of these; the only other alternative being that it is meaningless.

The natural import of the language would suggest that it is the first of these three hypothetical meanings. That interpretation, however, must necessarily be rejected because in every claim taken to the courts upon a contest of liability for compensation, the power purportedly conferred upon the Industrial Accident Board in regard to an operation could never be exercised; since the essential condition of its exercise (the final determination of liability) could not arise until after all jurisdiction of the Board had ended by the transfer of jurisdiction to the court.

The second hypothesis — that the language refers to cases where the Industrial Accident Board, passing upon a claim for compensation decides that liability for compensation exists- — seems to us to permit of better effect being given to all provisions of the statute; as also the general purpose of the statute; than either of the others. Upon that hypothesis, if the Board decides that liability for compensation exists, it may consistently order an operation, or refuse to on the merits of the question. (To save tiresome repetition we here and hereafter refer to the action of the Board in determining that because of disease or other conditions it is more than ordinarily unsafe to submit to an operation, as ordering an operation, and the contrary decision, as refusing to order an operation.) Under such a construction it would be considered that liability for compensation and liability to provide an operation are inseparable. That if liability for compensation exists then also liability, subject to the other prescribed conditions, of course, to provide an operation, exists; but if the decision of the Board be that no liability for compensation exists, then it would follow as a necessary implication that no liability to provide an operation exists. Further, since liability to provide an operation would be dependent upon the existence of liability for compensation it would seem logical that an appeal to a court from a decision of the Industrial Accident Board on the question of liability for compensation would ipso facto suspend any order for an operation, or refusal to order an operation, and transfer jurisdiction of those questions along with the dominant and controlling question to the court. No necessity is apparent to us why giving such effect to an appeal should result in penalizing either party regarding an operation upon a final adjudication by the court of the dominant and controlling issue of liability for compensation. Why, it may pertinently be asked, we think, should a compensation insurer, believing that a claim against it is unjust, and that no liability for compensation exists, be, in effect, penalized by being forced to provide a free operation with all its necessarily prejudicial implications of a confession of liability when, upon appeal, the court may adjudge that no liability for compensation exists; particularly, since there is no provision for any reimbursement? Or, in such case, if the compensation insurer refuses to prejudice its contest of liability by providing an operation as ordered, and refuses to incur the expenses thereof, upon the consistent view that since it disclaims any liability for compensation it is not liable to provide a free operation, why, if it be finally adjudged that it is liable for compensation, should it be penalized by a denial of the right or privilege then to reduce the amount of its liability by an operation to rehabilitate the employee, by restoring his lost earning capacity, presumably to the mutual benefit of all parties? The intention should not, we think, lightly or unnecessarily be imputed to the Legislature to penalize resistance to claims for liability, regardless of possible lack of merit. Any claim for compensation which the compensation insurer believes to be without merit, unless *he second hypothesis be correct, presents these alternatives to the compensation insurer: (1) to admit a liability deemed to be non-existent, and by the expenses of an operation, procure indemnity against a possible judgment, imposing an obligation to compensate possibly for total and permanent disability; or else (2) to resist the claim thereby incurring the hazard of being adjudged liable to compensation for total and permanent disability, with no indemnity, such as the right or privilege of reducing same by a successful operation, would, in part at least, afford, and this although the employee may at a comparatively small cost to himself by an operation have his lost earning capacity completely restored with no obligation to refund the difference, or without means by the compensation insurer of enforcing such obligation, if it existed. The natural result is to encourage the assertion of claims without merit in expectation that free surgical services may be provided íegardless of the compensation insurer’s liability for compensation. Compensation insurers are placed under a measure of coercion in cases of contested liability to provide operations as in the nature of insurance against the hazard of being cast in a final judgment with an obligation to pay possibly thousands of dollars.

An obstacle to the adoption of this second hypothesis is that, so far as we can see, it cannot be harmonized with the decisions in Tally v. Texas Employers’ Insurance Ass’n, Tex.Com.App., 48 S.W.2d 988; Texas Employers’ Insurance Ass’n v. Marsden, 127 Tex. 84, 92 S.W.2d 237, and other decisions following them to the same effect. According to those decisions the power of the Industrial Accident Board to,order an operation is not dependent upon its decision that liability for compensation exists. It is hela that the order for an operation is interlocutory, and, if so, of course, it is distinct from and necessarily precedes the decision of the Board upon the question of liability for compensation. We do not understand from those decisions that when the Board decides the issue of liability as embodied in an award of compensation, or denial of compensation, the right of appeal is not matured, or that the prescribed notice of intention not to abide the decision or the filing of suit may be delayed beyond the time specified in the statute. On the contrary, it reasonably appears from said decisions that from the time of ordering an operation at least six months must elapse before the final decision can be made. If this be the proper construction of said decisions, then it is obvious that the clause “where liability for compensation exists” cannot refer to the decision of the Industrial Accident Board that such liability exists since in that case the power to order an operation would have been exercised before the happening of the condition upon which the power comes into existence.

If, however, the decisions are susceptible to the construction that the Industrial Accident Board in making an interlocutory order for an operation also as precedent thereto, or, in connection therewith, impliedly makes an interlocutory decision that liability for compensation exists, then, of course, the particular obstacle to the adoption of the second hypothesis does not exist. But, if so, an equally serious difficulty is presented by the decisions in Texas Employers’ Insurance Ass’n v. Tally, 129 Tex. 134, 102 S.W.2d 180; Id., 132 Tex. 547, 125 S.W.2d 544; Johnson v. Employers’ Liability Assur. Corp., 131 Tex. 357, 112 S.W.2d 449, 450. In these cases it is held that “when a hernia case reaches a court, the rights of the parties have already become fixed by the events previously transpiring, and that the court only has the power and jurisdiction to finally try the case and enter one final judgment”; that the court in such case “has no power to require a- hernia operation.” It would seem to be implicit in that interpretation of the law that there is no relief for the compensation insurer, or the employee, from an interlocutory order of the court to the compensation insurer to provide an operation. The effect is the same as to say that from such order there is no right of appeal. The compensation insurer must provide the operation regardless of its disclaimer of liability for compensation and notwithstanding upon appeal it may be finally adjudged not liable; or, refusing to do so, if upon appeal it be adjudged liable for compensation, the court is powerless to permit it to discharge its liability by restoring the lost earning capacity of the employee through an operation at a comparatively small cost, plus 26 weeks’ compensation, as against possibly 401 weeks. The result of this interpretation seems to be to render the provisions relating to operations of no benefit to either party, apart from consequences violative of one’s sense of right and fairness. However, we see no way of interpreting the clause in question according to the second hypothesis without necessary conflict with said decisions.

The last remaining alternative is to construe the words “cases where liability for compensation exists” as referring to cases where liability is admitted. The above mentioned decisions offer no obstacle to the adoption of this hypothesis. It has the merit of freedom from the incongruity presented by the action of the compensation insurer while attempting to resist the claim of liability at the samé time impliedly confessing liability by providing a free operation. There is also obviated any question of incurring a greater hazard by a refusal to provide an operation. This third hypothesis is not, however, unobjectionable. Its acceptance imputes to the Legislature the aforementioned intention to place a premium upon the assertion of claims, regardless of merit; or a penalty upon the resistance to claims regardless of merit. The Legislature must be deemed to have said to compensation insurers, in effect that if regardless of the merits of any claim you will admit liability and provide an operation, or take the steps in that respect, prescribed by law, you have several chances of greatly reducing your potential liability; but, on the other hand, if you contest liability, regardless of the apparent lack of merit in the claim, then if you should be adjudged liable you are denied the right to discount your liability. On the contrary, you may be adjudged to pay for total and permanent incapacity, although the employee may take a small part of such payment, and by an operation completely restore his lost earning capacity, for which you have paid, and keep the difference.

Fortunately, in this case we are not put to the necessity of adopting either the second or third hypothesis as the true interpretation of the statute, to the rejection of the other, it being sufficient in the disposition of the questions here presented that either one or the other is 'the true interpretation. Whether the words “cases where liability for compensation exists” refer to a decision of the Industrial Accident Board, that such liability exists, or refer to the admitted existence of liability, neither of those conditions is present in this case. The Board decided against the existence of liability for compensation and the compensation insurer has not admitted liability. If, therefore, it appears unfair that appellant should not be permitted to discount its liability in the event that it finally be adjudged by the court to exist, by providing an operation, then the unfairness results from the provisions of the statute or as the effect of decisions before mentioned.

Appellant seems to assume that hernia is a “specific” injury and is only conditionally a general injury. The very opposite, we think, is true. The only difference between a so-called specific injury and a general injury is that as to the one the incapacity is in effect declared by law — liquidated; while as to the other it must be proved; as to the one the law determines the extent of the recovery of compensation; as to the other, the facts within prescribed limitations, determine the' extent of recovery. Hernia is an injury as to which the law makes special provisions. Such provisions are, therefore, necessarily of the nature of exceptions to the provisions governing injuries generally. Section 12b will not reasonably lend itself to a construction that it provides compensation in a specific amount, regardless of the degree of incapacity resulting from a hernia, and only upon prescribed conditions, an amount to be determined as in case of general injury. The provisions of the section will not reasonably admit of any other construction than that hernia is the same as to compensation as any other general injury with provisions that under exceptional conditions the extent of compensation is declared by law — or, in other words, compensated as a specific injury. True, the entire section contains no provision for the payment of any compensation whatever for a hernia injury except upon the condition precedent that the Industrial Accident Board, following the prescribed procedure, either: (1) determines that it is more than ordinarily unsafe (for the employee) to submit to an operation, or (2) that it is not more than ordinarily unsafe. But in prescribing exceptions to general provisions of the law governing compensation for injuries it was not necessary to repeat those general provisions. The general provisions continue to control, modified only as to the subject matter of the exceptions.

May hernia as' an injury result in total and permanent incapacity? If so, what provision fixes a definite and certain compensation, or varies the compensation from that provided for any other injury? It must be found, if at all, in said section 12b. If. every provision therein for a more limited compensation is expressly conditional, as it manifestly is, then the conclusion is irresistible that only upon the prescribed conditions may the compensation be limited.

One condition upon which compensation for hernia is conditionally limited to a specific recovery is expressed and two others possibly implied. The one expressed is to the effect that upon the conditions that liability for compensation exists and that the Board orders an operation and the employee submits thereto, and the operation is successful, the compensation shall be ■ limited to the surgical services and payment for 26 weeks. One possibly implied is that upon condition that the Board having its jurisdiction invoked determines against an operation but the employee submits any way, and the operation is successful. The other possibly implied is that where the compensation insurer voluntarily offers to provide an operation and the employee voluntarily submits, thus obviating the nécessity of any action by the Board, and the operation is successful.

On the other, hand, the section contains a number of expressions which in their absence would no doubt be implied, showing that the general provisions govern except as specifically modified. For example, if the Board decides against an operation and the employee does not submit, his injury is the same as any other general .injury. If the Board orders an operation but the employee refuses, the general provisions of the law govern, except the compensation is limited to not exceeding one year. If an unsuccessful operation does not result in death the employee, according to the statute, -“shall be paid compensation under the general provisions of this law the same as if such operation had not been had.” (Italics ours). Paid what? For total and permanent disability if shown to exist, not exceeding 401 weeks? We think there can be no - doubt of it. Lastly, if the hernia with or without an operation results in death, the compensation shall be the same as any other injury, except where the employee after proper order has willfully refused to submit to an operation.

In addition to the authorities cited in the original opinion we may add Tally v. Texas Employers’ Insurance Ass’n, Tex.Com.App., 48 S.W.2d 988, 990, which, in reaffirmance of Texas Employers’ Insurance Ass’n v. Neatherlin, Tex.Com.App., 48 S.W.2d 967, says, “If he [the employee] was willing to submit to the operation, and the insurer refused to furnish it, he was entitled to be compensated under the general provisions of the law according to the degree of incapacity which the board might find he had suffered by reason of his injury.”

Appellant strenuously insists that its. duty, if any, to provide an operation was dependent upon an order for the operation by the Board. Would that obviate the hardships complained of? Would not appellant have been forced to elect between the same alternatives? We fail to see that such would not be the case.

' It is our conclusion that the motion for rehearing should be overruled. It is accordingly so ordered.

       We -would not be understood as deciding that the insurer is under an absolute duty to provide an operation. If the medical advisers of the insurer were of the opinion that an operation would not effect a restoration of earning capacity or shorten the period of disability resulting from hernia, it is believed that no duty would exist to “provide competent surgical treatment by radical operation.” The statutes contemplate that there may be cases where because of chronic diseases or for other reasons it may be “more than ordinarily unsafe to submit to such operation.” If the insurer be advised of the existence of any such condition it would seem there could exist no duty to offer to operate. If the medical advisers were of the opinion that an operation would endanger the life of the employee it would be most unreasonable to hold that nevertheless the insurer was under a duty to operate. A more reasonable construction would be, we think, that it affords the insurer an option to minimize the possible extent of its liability by an operation when it is considered that the operation will have such effect.
      Under this view it may be considered that plaintiff unnecessarily tendered issues as to the refusal of the appellant to provide an operation and of appellee’s willingness to submit to an operation. We cannot see, however, that the proceedings having reference to such issues can be reasonably calculated to prejudice any right of appellant, and may be regarded as surplusage.


source: Caselaw Access Project

author: LESLIE, Chief Justice.

license: Public Domain

text:
    POWER v. JONES.
    No. 1967.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 12, 1940.
    Rehearing Denied Feb. 2, 1940.
    D. J. Brookreson, of Benjamin, for appellant.
    M. F. Billingsley, of Munday, for appel-lee.
   LESLIE, Chief Justice.

John Ed Jones, administrator of the estate of Mrs. N. E. Blocker, deceased, filed this suit in trespass to try title against W. L. Power to recover 2.85 acres of land in Munday, Texas. This right to recover the land is predicated on title in Mrs. Blocker under the ten years’ statute of limitation, Vernon’s Ann.Civ.St. art. 5510. The defendant claimed the land under deed and the judgment of the district court awarding title to him on September 7, 1911 as against Mrs. Blocker and her husband.

The trial before the court without a jury resulted in judgment for plaintiff and the defendant appeals.

The judgment is challenged • on the grounds that (.1) there was no evidence to show adverse possession of the premises on the part of Mrs. N. E. Blocker, (2) that the evidence showed she occupied the land at all times under a rental contract with the defendant, and (3) that the rental contract provided that Mrs. Blocker would pay the taxes on the property and “rentals” when able to do so.

The record discloses that on September 4, 1911, the defendant W. L. Power recovered a judgment for title and possession of this property against the Blockers. They were not dispossessed. The husband, T. G. Blocker, died in 1912 and Mrs. Blocker continued to reside on the property until she died July 4, 1938. She paid the State, County, -School and city taxes on the same down to and including 1936, and also paid the city and school taxes on the property for the year 1937. During such time she occupied, used and claimed the premises to the exclusion of all others. Under the testimony this was manifested in different ways. She made such claims to the tax assessor in 1914 and 1915. Such claims of ownership were made to and in the presence of neighbors. Her long possession of this property and prompt payment of the taxes combined with such claims and assertions undoubtedly raise a 'rather strong inference that the defendant Power had notice of these adverse claims asserted by Mrs. Blocker. This would be the necessary effect of such facts and circumstances. Moore v. Knight, 127 Tex. 610, 94 S.W.2d 1137; Seibert v. Markham, Tex.Civ.App., 116 S.W.2d 501.

Further, the fact that the defendant in the instant cause once recovered a judgment for title and possession of this land against the Blockers (1911) would not preclude the plaintiff’s 'right of recovery in this suit on the ground of limitation title maturing subsequent to the date of that judgment. In Pendleton v. McMains et ux, 32 Tex.Civ.App. 575, 75 S.W. 349, 350, writ refused, it was held that adverse possession of land for 10 years establishes title against one whose title is derived from a judgment, though the adverse possessor be the defendant in such judgment. It was there said: “The judgment obtained by Sloan and others against defendants in error in 1888 divested them of all title owned by them in the land in controversy at that time, but did not prevent them from obtaining title to it again by adverse possession after that time. More than 13 years had elapsed after the rendition of the judgment before this suit was instituted, and during all those years defendants in error had been in possession of the land, and claiming title -to it against the world. There is no peculiar sacredness in a title to land obtained through a judgment that lifts it out of the scope ánd purview of statutes of limitation, and, if the possession be adverse for 10 years, whether it be by the defendant in the judgment or any one else, it will perfect a title.”

Hence, the question of evidence as presented by the assignment is decisive of this appeal. The defendant Power undertook to testify to facts establishing that during the time the alleged limitation title was being matured Mrs. Blocker was merely his tenant under an agreement he negotiated with her whereby as part of the consideration for the use of the premises she undertook to pay the taxes on the property from year to year. This testimony was objected to on the ground that it was in contravention of Art. 3716, R.S.1925 (Dead Man’s Statute). Evidently the trial court disregarded the testimony since it was inadmissible for the reasons stated. There was no other testimony bearing upon this contention advanced by the defendant Power, except that of the witness Stovall, who in somewhat indefinite manner testified, that “in the year 1911 * * *” he accompanied Power to Munday and heard Mrs. Blocker say something about paying rent, presumably on the premises in controversy. When asked if he heard any conversation between her and Power he testified :

“I don’t know that I can recall what was said down there. I do remember that Mrs. Blocker told Power, he asked her something about some rent and she said she didn’t have any money to pay the rent, that she was washing for a living and he told her he would like to have the rent money to pay the taxes, and that is about all I remember of the conversation.
“Q. Do you remember whether or not she agreed to pay the taxes ? A. The best of my recollection she agreed to pay the taxes, or pay him enough money to pay the taxes, I don’t remember which it was.”

Mr. Stovall had known Power several years and formerly had worked for him.

Considering the testimony favorable to the defendant, it cannot be held that it conclusively establishes the relation of tenancy through the years as between himself and Mrs. Blocker. Standing alone, such testimony might make a prima facie case in favor of Power on that theory, but taking the testimony as a whole we think it would do no more than raise an issue of fact which the trial court has resolved in favor of limitation title asserted by the plaintiff. The evidence reasonably supports the judgment, and finding no error in the record the judgment of the trial court is affirmed.


author: SPEER, Justice.

text:
    ALAGOOD et al. v. COCA COLA BOTTLING CO. et al.
    No. 14008.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 12, 1940.
    Rehearing Denied Feb. 8, 1940.

      W. S. Moore, of Gainesville, for appellants.
    Cantey, Hanger, McMahon, McKnight & Johnson and James C. Wilson Jr., all of Fort Worth, for appellees.
   SPEER, Justice.

Edith E. Alagood and husband, M. R. Alagood, sued Coca Cola Bottling Company and Crystal Bottling Works, both defendants alleged to be corporations, for damages sustained by. Mrs. Edith E. Ala-good when a bottle of. coca cola exploded, while being handled by her, resulting in injuries.

The case is before us for review, and for convenience the parties will carry the same designation as in the trial court.

Plaintiffs’ petition shows that they were engaged in a grocery and cold drink business in the City of Gainesville, Texas, and that they had purchased bottled coca cola .from defendant, Crystal Bottling Works, shortly previous to the accident complained of; that the two named defendants were jointly engaged in the business of selling the -coca cola to plaintiffs; that on October 8, 1937, Mrs. Alagood was handling one of the bottles in the ordinary and customary manner when it exploded and a piece of the glass bottle struck her jaw and neck, cutting her neck severely and bruising her jaw, to such an extent that she was caused to lose three teeth.

The acts of negligence of defendants, causing the injuries, were alleged to consist of, (a) the use by defendants of bottles containing the beverage which were defectively constructed, and (b) the contents of the bottle was so highly charged with gases and other substances to cause it to explode, proximately causing the injuries complained of. There was an alternative plea to the effect that .if plaintiffs be mistaken in their allegations of specific negligence on the part of defendants, then that all the facts .and circumstances which caused the bottle to explode were within the peculiar knowledge of defendants and that it would not have exploded except for some act of negligence on the part of defendants, the exact nature of which plaintiffs did not know.

Defendants answered by general demurrer and special exceptions, all of which were overruled, and by general denial.

At the conclusion of the testimony, upon motion of Coca Cola Bottling Company, the court gave an instructed verdict in its favor. There was no testimony tending to connect that defendant with -plaintiffs’ suit, and no complaint is made of the action of the court in this respect.

The case was submitted to a jury on special issues. The verdict was favorable to the remaining defendant. To issue No. One, the jury found that the bottle which exploded was not defectively constructed. Number Four: the bottle had not been charged with an excessive amount of expansive gas when filled at defendant’s plant. Number Seven: the injuries sustained by Mrs. Alagood were the result of an unavoidable accident. Number Eight: Mrs. Alagood sustained damages in the sum of $1,700. Number Nine: Mrs. Alagood was not guilty of contributory negligence.

The trial court entered judgment on the verdict against plaintiffs and in favor of the defendant, Crystal Bottling Works. Plaintiffs perfected an appeal by writ of error.

There are seventeen assignments of error and even more propositions in plaintiffs’ briefs. Many are virtual repetitions of others, and are so intimately related that counsel has briefed and discussed them together. We shall so treat them, as far as possible.

Propositions one to ten, inclusive, may be summarized as, (a) the court erred in submitting issues one and four because they were immaterial; (b) it was error to submit Special Issue No. Seven (unavoidable accident) because there were no pleadings or evidence to support it; and (c) the court erred in entering judgment for defendant on the verdict because of the immateriality of the issues mentioned and a lack of pleading and evidence to support number seven. The substance of the remaining propositions is: Since plaintiffs’ allegations of defendants’ negligence in using defective bottles and overcharging them with expansive gas were surplusage, and since the evidence showed that defendants had the exclusive control of the bottles and their contents, that the bottle exploded, injuring Mrs. Ala-good, she suffered damages, that she was guilty of no contributory negligence and the defendants offered no testimony tending to show the cause of the explosion, the doctrine of res ipsa loquitur applied and the court should have entered judgment for plaintiffs for $1,700, the amount of damages found by the jury to have heen sustained.

Plaintiffs alleged in their petition that defendants were negligent in the procurement and use of defectively constructed bottles and in overcharging the bottles with liquid gas while manufacturing the beverage sold. Plaintiffs attempted to prove both of these allegations. Some circumstances were in evidence, which, if believed by the jury, would have supported a verdict under the allegations. The defendants offered testimony which tended to contradict that of plaintiffs. In the very nature of the facts and circumstances surrounding the unfortunate incident, neither party could establish by irrefutable evidence their side of the controversy. By Article 2190, Vernon’s Tex.Civ.St, it is provided that when a case is submitted to the jury on special issues, the court shall submit all issues made by, the pleadings and evidence. Where, as in this case, the evidence is conflicting, it must be considered sufficient to support the verdict, if to discard all adverse testimony, and giving credit to all evidence that is favorable to the successful party, and indulging every legitimate conclusion that is favorable to him, a jury might have found in his favor. 17 Texas Jur., page 910, sect. 410, and cases there cited. The jury answered the issues on the specific acts of negligence plead, in favor of the defendants. There being evidence of probative force to support the findings the appellate court may not set it aside and substitute its own judgment for that of the jury. 41 Texas Jur. page 1246, sect. 378, and cases cited. See, also, Sproles Motor Freight Lines v. Juge, Tex.Civ.App., 123 S.W.2d 919, writ dismissed, judgment correct; Oats v. Dublin National Bank, 127 Tex. 2, 90 S.W.2d 824, and authorities cited.

The plaintiffs having plead certain acts of negligence by defendants and attempted to recover thereon, the trial court was not in error when he submitted those issues to the jury and placed the burden upon plaintiffs to establish them by a preponderance of the evidence. In Houston & T. C. Ry. Co. v. Stevenson, Tex.Com.App., 29 S.W.2d 995, at page 999, the court used this language: “When plaintiff pleads and relies for recovery upon specific acts of negligence on the part of the defendant, and the casé is submitted to the jury upon special issues, it is proper to instruct the jury as to those acts of negligence so charged and relied upon that the burden [of proof] is upon the plaintiff to establish them by a preponderance of the evidence.” This principle was cited with approval in Gulf Production Co. v. Adams, Tex.Civ.App., 49 S.W.2d 889, writ refused.

Under this group of assignments, plaintiffs contend that it was error for the court to submit “unavoidable accident” by Special Issue Seven, because there were no pleadings or evidence to support it. No necessity existed for a pleading to raise the question, the general denial by defendants put the point in issue. Rosenthal Dry Goods Co. v. Hillebrandt, Tex.Com.App., 7 S.W.2d 521; Greer v. Thaman, Tex.Com.App., 55 S.W.2d 519, 520. In the last cited case, unavoidable accident was plead by defendant, but the court said: “Of course, it was not necessary to * * * plead unavoidable accident as a defense. That defense is always available under a general denial, if the evidence raises it.”

The trial court explained in his charge that, “An unavoidable accident is one which cannot be foreseen or prevented by the exercise of ordinary care and is one which occurs without fault or negligence on the part of either the plaintiff or the defendant.” The jury found that the defendants were not negligent and that plaintiffs had not contributed to the injury by their negligence. There was substantial testimony to support both findings. The bottle unquestionably exploded and injured Mrs. Alagood. If the jury’s findings of fact are to be recognized, then the explosion was an accident arising from some source other than the negligence of either party, and this condition presents what is commonly known as an “unavoidable accident.’’ We are not confronted with a proposition where a jury had found that one of the parties was guilty of negligence proximately causing the injury and in the same verdict find that the injuries sustained were the result of an unavoidable accident. In Horton & Horton v. House, Tex.Com.App., 29 S.W.2d 984, at page 985, the court said: “In a suit of this character, where the jury has found the injuries inflicted were the result of unavoidable accident, the question of negligence passes out of the case.” We see no error in the assignments, and they must be overruled.

Under the second group of assignments above shown, plaintiffs contend that the acts of negligence alleged by them against defendants should have been disregarded by the court, and that judgment should have been entered for plaintiffs upon their alternative plea under the rule of res ipsa loqui-tur.

Plaintiffs proved that they purchased the bottle of coca cola which exploded and caused their injuries, from defendant, Crystal Bottling Works; that a case containing the bottle was left by one of defendant’s deliverymen at plaintiffs’ place of business; they thereafter were in the act of placing the bottles in a refrigerator, and while the wife was carrying the bottles, one in each hand, from the case to the refrigerator, one of them, without fault on her part, exploded, causing her injuries. They also offered testimony tending to show that when the bottles are filled with carbonic liquid gas, such as that used in the manufacture of coca cola, that if the bottle is defectively constructed or if an excessive amount of the gas pressure is put into the bottle, either as a result of defective testing machinery or the negligence of an employee, it may result in blowing the crown or cap from the bottle or an explosion of the bottle. We have been unable to find in the record any testimony which would produce the casualty other than one of those specifical-⅛ plead by plaintiffs. As above stated, these issues were submitted to the jury and found against plaintiffs’ contention.

Testimony offered by defendant shows that it purchased the bottle in controversy from one or the other of two bottle manufacturing concerns not involved in the suit; that both manufacturers from which it purchased bottles were reliable and manufactured standard bottles, suitable in every way for containing coca cola when placed on the market; that the precautions used by defendant in manufacturing coca cola and placing it in the bottles consisted largely of an inspection of the bottle before it was' filled to ascertain if it was defective; the' liquid was mixed and placed in the bottle and capped or crowned by machinery; a testing machine was used which registered the pressure in each bottle; approximately thirty-five pounds pressure was contained in each; gauges and machinery were inspected each day by competent employees, to see that all were functioning properly; that no bottles were permitted to leave defendant’s plant any time shortly before the date of plaintiffs injury, in a defective condition or which had not by test been shown to have the usual and customary gas pressure; the means used by defendant to safely manufacture coca cola and put it on the market was in all respects like those used by similar plants in other parts of the country; again after the bottle is filled they are placed upon an inspection box containing two strong electric lights and viewed by the inspector. It was further shown by the testimony of a witness who had many years of experience in handling and selling bottling equipment that the defendant’s plant contained modern equipment, suitable for the business and similar to that used in other plants throughout the country; that the manufacturers from whom defendant purchased bottles were reliable, competent and standard concerns in their line; that bottles are manufactured by such companies to withstand the minimum pressure of three hundred pounds before breaking, and that witness had seen many hundred of them tested, some withstood seven hundred pounds of pressure; that standard bottles like those used by., defendant were such that the metal caps or crowns thereon would blow off by reason of the gas pressure at approximately ninety to one hundred pounds; the bottle which exploded did not have the crown blown from it. The expert witness further testified that in his judgment it would be impossible for coca cola containing thirty-five pounds pressure to explode a standard made bottle; that after the liquid is placed in the bottle, heat and cold conditions will cause the pressure to fluctuate and in some instances to rise from the recognized standard pressure of thirty-five pounds to fifty pounds; that a bottle containing normal pressure, if struck against a solid object or dropped to the floor, would possibly break or explode.

Plaintiffs’ contention seems'to be that since the bottle did explode and cause the injuries complained of, if not from one of the causes specifically plead, then under their alternative plea, that it was from some other cause or kind of negligent act or omission of defendant, the nature of which they did not know, but was within the knowledge of defendant, constituted a sufficient allegation to require the application of the rule of res ipsa loquitur. The alternative allegation was proper and was tantamount to a pleading of some other negligent act by defendant, not previously specifically plead. Under our system of procedure, plaintiffs had a right to plead more than one ground of negligence which they claim produced their injuries. 33 Tex.Jur., page 461, sect. 43. It is true that defendants specially excepted to the manner in which it was plead, but the action of the court in overruling the exception is not before us.

The application of the rule of res ipsa loquitur contended for by plaintiffs, would not entitle them to a judgment upon the answer of Special Issue No. Eight alone, wherein it was found that Mrs. Alagood had sustained damages in the sum of $1,700. Plaintiffs’ action is based upon the negligence of defendants, and none was found against them. The alleged specific acts of negligence plead were found not to exist. They being eliminated, plaintiffs were dependent upon a finding that some other negligent act was committed, which could be embraced within their alternative allegation. This was the only remaining ground upon which they could recover. Their testimony was sufficient to raise an issue, and the rebuttal testimony offered by defendants presented a question for jury determination. The court did not submit an issue on the point, nor did plaintiffs object to the charge because none was submitted. It was the duty of plaintiffs to prepare a charge and request its submission if they desired that question determined. Gulf, C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183. In the absence of such requested issue, the point was waived by plaintiffs. Article 2190, Vernon’s Tex.Civ.St.; Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084.

Courts in other jurisdictions have many times discussed the rule applicable to res ipsa loquitur. The expression is said to mean that “the act speaks for itself.” It is a rule of evidence, dependent upon surrounding circumstances, when conditions are such that positive evidence is not obtainable. When such circumstantial evidence is thus produced, it raises a presumption of negligence by the defendant; this presumption is not conclusive, but is always subject to rebuttal. When rebuttal evidence is produced by a defendant, a jury question arises to determine if negligence has been proven by a preponderance of the evidence. Wright v. Elkhorn Consolidation Coal & Coke Co., 182 Ky. 423, 206 S.W. 634; Carter Oil Co. v. Independent Torpedo Co., 107 Old. 209, 232 P. 419; Louisville & N. R. Co. v. Rhoda, 73 Fla. 12, 74 So. 19; Myers v. City of Independence, Mo., 189 S.W. 816.

The rule in this state is laid down by the Commission of Appeals, speaking through Judge Sharp, in Gulf, C. & S. F. Ry. Co. v. Dunman et al., Tex.Com.App.,. 27 S.W.2d 116, 72 A.L.R 90, wherein the comprehensive language of the U.S. Supreme Court, in Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, is quoted as follows [27 S.W.2d 118, 72 A.L.R. 90]: “ ‘In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that' they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff. Such, we think, is the view generally taken of the matter in well-considered judicial opinions.’ ”

If to indulge the presumption in this case, that the nature of the accident and the manner in which the injuries were sustained, were such as to furnish circumstantial evidence that they resulted from a negligent act of the defendant, then we must consider the evidence adduced by the defendant, whereby it sought to show the means employed in the manufacture of the beverage and to place it on the market in rebuttal to the circumstances proven by plaintiff. The defensive testimony was amply sufficient to make a jury question of defendant’s negligence; this being true, plaintiffs were not entitled to a judgment simply because the jury had found that the wife had suffered damages in a given sum. The finding by the jury of the extent of plaintiff’s injuries is no finding at all of negligence by defendant; she might have sustained such injuries irrespective of defendant’s negligence.

We have some doubt that the rule of res ipsa loquitur finds any application to this case. It requires a very liberal construction of the principle involved in that expression to bring this case within the rule. From the evidence it is indisputably true that defendant chose the bottles in which to place its manufactured beverage and to thus sell it to the plaintiffs, who were dealers and expected to resell to consuming customers. That after plaintiffs received the bottle of coca cola from defendant’s deliveryman, it sat on the floor of the store for a period of time not shown, and when plaintiffs attempted to place it in the refrigerator, it exploded and injured Mrs. Alagood. From this it will be seen that the offending object, which inflicted the injury, was not in the possession or control of defendant at the time of the casualty. How long it had been in the complete custody and control of plaintiffs, and what, if anything, had happened to the bottle while in plaintiffs’ possession, does not appear in the evidence.

In Davis v. Castile, Tex.Com.App., 257 S.W. 870, 872, the court said:

“The rule of res ipsa loquitur has no application, where the thing causing the accident was not under the exclusive management of the master [the defendant in this case], but was partially under that of the injured party. * * *
“Again, where the evidence shows that the accident may have happened as the result of one of two or more causes, and it is not more reasonably probable that it. was due to the negligence of the defendant than to any other cause, .the rule of res ipsa loquitur does not apply.”

The same rule is announced and applied in the case of Brigman v. Holt & Bowers, Tex.Civ.App., 32 S.W.2d 220, writ refused.

In Carter Oil Co. v. Independent Torpedo Co., 107 Okl. 209, 232 P. 419, it was held that before the rule of res ipsa loquitur could be applied, the evidence must show that the thing causing the accident was under the control of the defendant at the time of the accident.

In Slater v. Barnes, 241 N.Y. 284, 149 N.E. 859, it was held that the rule of res ipsa. loquitur' is predicated on the theory that the agency producing the injury was within the exclusive possession, control and oversight of the person charged with negligence.

For the reasons shown, we hold that Special Issues one, four and seven were properly submitted; that the court did not err in refusing to enter judgment for plaintiffs on their alternative plea under the rule of res ipsa loquitur, but that under the verdict of the jury, defendant was entitled to the judgment rendered. We have carefully'examined all assignments of error and the propositions made by counsel thereunder; having found no reversible error presented, they are all overruled and the judgment of the trial court is affirmed.


author: STOKES, Justice.

text:
    PANHANDLE & S. F. RY. CO. v. WILSON.
    No. 5087.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1939.
    Rehearing Denied Jan. 29, 1940.

      Adkins, Pipkin, Madden & Keffer, of Amarillo, for plaintiff in error.
    Sanders & Scott, Howard F. Saunders, and A. P. Smith, all of Amarillo, for defendant in error.
   STOKES, Justice.

This is an action for damages instituted in the county court by defendant in error against plaintiff in error alleged to have resulted to a shipment of forty-nine head of cattle from Bovina, in this state, to Kansas City, Missouri, on April 6, 1937. The allegations and undisputed evidence show that one of the cows died enroute at Emporia, Kansas, and that two were in an injured and crippled condition when they arrived at their destination. No substantial evidence was presented to sustain defendant in error’s allegations of loss in quality and weight of the remaining cattle in the shipment, the evidence being confined to the three head mentioned. The trial was before the court without the intervention of a jury and resulted in a judgment in favor of defendant in error for $133.78, which the record shows without dispute was the diminution in value of the two crippled cows and the value of the one that died at Emporia, Kansas. The trial court filed findings of fact and conclusions of law in which he found that the forty-nine head of cattle, when delivered to plaintiff in error at Bovina, were normal, tractable cattle, in good physical condition and had no inherent defects or vices. Pie further found that the defendant negatived any acts of negligence on its part.

The conclusion of law was to the effect that’ .since there was no inherent vice or weakness in the animals, which were normal and healthy, the plaintiff in error is liable for the actual difference in value of the shipment caused by the death of the one cow and the injury of the other two.

Plaintiff in error duly excepted to the judgment as entered, gave notice of appeal, and has perfected a writ of error to this court.

The testimony does not disclose the manner in which the two cows received their injuries nor the cause of the death of the one which died at Emporia. Plaintiff in error contends the judgment should be reversed because, first, it overcame any legal presumption that would make it liable as an insurer by exonerating itself in the testimony from negligence of any kind in the manner in which the cattle were handled in transit. Secondly, that the testimony of the witnesses who testified as to the market value of the cattle was based upon hearsay and should have been excluded upon its objection.

Defendant in error proved by his own testimony that the cattle were in good condition when delivered to plaintiff in error at Bovina; that one of them died en route and the other two were in a crippled and damaged condition when the shipment arrived at the Kansas City stockyards. He then introduced a witness by whom he sought to establish the market value of the cattle and the amount of his damages and rested his case, depending upon the rule of law that when a shipment of property is received by a common carrier in good condition and delivered by it at destination in a damaged condition, the carrier is liable for the damage as an insurer of the property.

Plaintiff in error, by depositions of its employees who handled the shipment over the entire route from origin to destination, proved that there was no rough handling of the cattle, no delay in shipment except at Emporia, Kansas, where it was required under the law to unload the cattle for water, feed and rest and, as found by the trial court, exonerated itself completely from any negligence.

Defendant in error contends that the trial court correctly entered judgment in his behalf because he showed that the injuries did not result from inherent vice or weakness of the animals involved in the shipment and that the burden then fell upon plaintiff in error not only to negative the existence of negligence on its part, but to go further and show by affirmative evidence that the injuries to the cattle resulted from one or more of the exceptions established by the law as being those which exempt a common carrier from liability for the injury and damage, viz., (1) the act of God, (2) the act of the public enemy, (3) the act of the public authorities of the state, (4) the act of the shipper, or (5) the inherent vice, propensities or weakness of the animals involved in the shipment.

Since plaintiff in error admits that one cow died in transit and the other two were in a damaged condition upon arrival at destination, as alleged by defendant in error, and defendant in error admits that plaintiff in error has, as found by the court, exonerated itself from negligence, the controlling question presented by the briefs resolves itself into one of whether or not a common carrier, in defending a suit for damages occasioned to a shipment of cattle, where it is shown the animals were delivered to it in good condition and were in a damaged condition upon arrival at their destination, is under' the duty to establish the two elements involved in the exceptions laid down by the law as being those which excuse it from liability for the damage. In other words, in this case, did it devolve upon plaintiff in error not only to exonerate itself from negligence in handling the shipment, but also affirmatively to establish the cause or manner in which the cattle were injured and thus bring the cause of their injuries within one of the five exceptions stated by defendant in error ?

It has been held by the courts of this state, including the Supreme Court, that, generally speaking, a railway company must receive and transport livestock the same as other property and after receiving them for shipment, it becomes an insurer of the safety of the cattle the same as other property and is bound to transport them against loss from any cause except the act of God, the public enemy, the owner, or vice and propensity inherent in the animjals. Gulf, C. & S. F. Ry. Co. v. Trawick, 68 Tex. 314, 4 S.W. 567, 2 Am.St.Rep. 494; Fort Worth & D. C. Ry. Co. v. Jordan, Tex.Civ.App., 155 S.W. 676; Chicago, R. I. & G. Ry. Co. v. Scott, Tex.Civ.App., 156 S.W. 294.

On account of the nature and disposition of livestock, however, the rule which is strictly enforced as to inanimate freight has been greatly relaxed in its application to the shipment of live animals and it may be said upon good authority that the strict rule in its application to inanimate freight no longer obtains in livestock ship-merits. Williams & Hawkins v. Gulf & I. Ry. Co., 63 Tex.Civ.App. 543, 135 S.W. 390; Texas Central Ry. Co. v. G. W. Hunter & Co., 47 Tex.Civ.App. 190, 104 S.W. 1075.

Furthermore, it is established law in Texas that the strict rule which makes common carriers liable as insurers of property received by them for transportation is applicable only after they have received them and failed to deliver them at destination or in case of their loss. In cases where shipments have been delayed or damaged in transit but the property is ultimately delivered to the consignee, the carrier is not an insurer of the goods but is bound only by the general rule of liability for a breach of contract, or the public duty which it owes as a common carrier. It is said that the carrier may be excused for delay in receiving the goods or in transporting them after they have been received, whenever the delay is .necessarily caused by unforeseen disasters • against which human prudence cannot provide, or by accident not caused by the negligence of the carrier, or by thieves, robbers, or other uncontrollable incidents. Gulf, C. & S. F. Ry. Co. v. Levi, 76 Tex. 337, 13 S.W. 191, 8 L.R.A. 323, 18 Am.St.Rep. 45.

Whatever may be the present status of the rule of law which makes a common carrier an insurer of goods received by it for transportation, and regardless of what the rule may be with reference to the exceptions in case of shipments of livestock, it is well established law in this state that when the presumption of negligence arises it devolves upon the carrier to show by testimony there was no negligence on its part in connection with the shipment. When the plaintiff establishes the presumption by showing a delivery of the livestock to the carrier; that they were in good condition when delivered, and that they were received at their destination in a damaged condition, the plaintiff has made a prima facie case and shifted to the carrier the burden of exonerating itself from negligence. Texas &. N. O. Ry. Co. v. East, Tex.Civ.App., 57 S.W.2d 175; Leon v. Hines, Tex.Civ.App., 223 S.W. 239.

If the testimony stops there and the carrier adduces no evidence of the manner in which the shipment was handled by it, the plaintiff is entitled to recover. But the rule is equally as well established that, when the case reaches that stage and the burden is thus shifted to the carrier, it adduces legal evidence of the manner in which the shipment was handled and shows by competent evidence that nothing was done or allowed to happen during the time it had possession of the property that could be classed as negligence, it exonerates itself from liability and thus discharges the burden so placed upon it. The prima facie case made by the plaintiff is then destroyed and the duty devolves upon him to proceed further and establish the case made by his pleadings by showing in some manner that the injury and damage resulted from the carrier’s negligence.

In this case defendant in error thus made a prima facie case of negligence against plaintiff in error. Plaintiff in error then adduced witnesses who handled the cattle from the time they were received at Bovina until they arrived in the stockyards at Kansas City, Missouri. The chain of this testimony is unbroken. The manner in which the cattle were handled is accounted for by this testimony during .every hour of the time and the testimony of these witnesses completely exonerates plaintiff in error from any sort of negligence.

The case of Texas & N. O. Ry. Co. v. East, supra, reveals facts very similar to those revealed by the record in this case. In disposing of that case Chief Justice Fly, speaking for the Court of Civil Appeals of the Fourth District, said [57 S.W.2d 176] : “The judgment in this case must be sustained, if at all, on the presumption of negligence and rough handling on the way to New Orleans. When that presumption arose, then it devolved on the carrier to show by testimony that there was no rough handling, but that the cattle were handled in a careful manner. That is exactly what was done by the carrier, and, in addition, there was affirmative evidence to the effect that the cattle not only did not die from rough handling, but died from the effects of arsenical poison received through dipping at the point of shipment. This latter testimony was clear and to the point, and unassailed and uncontradicted by appellees. It was calmly set aside and ignored by the jury, as was the testimony in regard to the manner in which the cattle were handled by the carrier. To hold that a railroad company cannot destroy a presumption of negligence by affirmative uncontroverted evidence is to hold that, whenever cattle are delivered to a railroad company in good condition at the shipping point, and are delivered in bad condition at the point of destination, it would amount to a declaration that a railroad company has no defense against the presumption mentioned. That is not the law, however. The evidence as to the handling of the cattle was not the opinion of witnesses, but the positive statement of facts.”

While it is true there was some evidence in that case that the cattle were injuriously affected by being subjected to dipping in a solution of arsenical poison, yet the case was disposed of by the court solely upon the principle that the prima facie case made by the plaintiff was destroyed by the testimony of the defendant carrier’s witnesses which exonerated the carrier from acts of negligence.

Likewise in the case at bar, there was no conflict in the testimony. It is true that the witnesses who gave this testimony were the employees of the railway company but, as held by the court in the case from which the above quotation is taken, every witness should be judged by his reputation for veracity, his manner of testifying and the reasonableness of his story. The fact that the witnesses were employees of plaintiff in error did not • change the rule as to their testimony and neither the court nor a jury has the right arbitrarily to set it aside on that account nor apply to it a different standard from that which is applied to testimony of the ordinary witness. Their testimony was unequivocal and uncontra-dicted. The prima facie case which defendant in error established was thereby destroyed and the burden of proceeding with the evidence was then shifted back to defendant in error. Gulf, C. & S. F. Ry. Co. v. Downs, Tex.Civ.App., 70 S.W.2d 318; Hudson v. Ernest Allen Motor Co., Tex.Civ.App., 115 S.W.2d 1167.

In the Downs case, supra, the judgment of the lower court was rested exclusively upon the presumptive negligence that had been established by the plaintiff in making out his prima facie case just as the judgment in this case, according to the conclusions of law of the trial court, was poised. In discussing the situation the court held that when the -railway company exonerated itself from negligence the burden of proof shifted to the plaintiff and under such circumstances the plaintiff cannot rely for recovery alone on the presumptive rule of negligence.

In view of the holdings of our courts upon the question and the plain principles of justice and right, we cannot accede to the contention of defendant in error. To do so would be, in effect, to hold that the testimony adduced by plaintiff in error, which unquestionably and completely exonerated it from the charge of negligence and which was uncontradicted by any evidence or circumstance'in the case, should be set aside and completely ignored. It has never been the law that a common carrier is unable by any sort of testimony to exonerate itself from negligence and responsibility for damage that may arise to a shipment of any kind of property. The courts entertain legitimate defenses of common carriers in such cases the same as they do those of other litigants and unless the law places upon plaintiff in error the duty to go further than it did in exonerating itself here, defendant in error was not entitled to a judgment.

Defendant in error contends further that, admitting plaintiff in error, by the testimony of its witnesses, did exonerate itself from negligence, still, under the law, it was required to go further and affirmatively establish the manner in which the cattle received their injuries. This contention is based upon the expressions found in a number of authorities which hold that, where goods or property is lost, destroyed or damaged by the act of God or the public enemy, etc., in order to relieve itself of liability, the carrier must not only show that the property was destroyed or damaged by the agencies mentioned but it must also establish as a fact that it was not guilty of negligence in connection therewith. In the situations dealt with by the courts in thus expressing themselves it will generally be found that no question was raised as to the manner in which the property was destroyed or damaged. The question being discussed was whether or not, in connection with the force or agency which caused the destruction, loss or damage, the carrier was guilty of negligence. It is well established that even though property in transit is lost or destroyed by the act of God, etc. if the carrier is guilty of negligence in connection with it, the carrier is liable although the principal agency of destruction was one of the exceptions made by the law.

We have been cited to no case wherein the courts of this state have passed upon the identical question with which we are now concerned. It is a matter of common knowledge, however, that live animals when being shipped in railway freight cars, will move about and be thrown against each other and even tripped and thrown to the floor by the ordinary movements and switching of the cars even though the greatest care is observed on the part of the employees in charge of the train. It is also a matter of common knowledge, of which the courts will take judicial notice, that there is a natural shrinkage in livestock that are subjected to long and distant shipments. ’Tliey may be injured or even killed by acts which arise out of their own inherent nature as live animals even though not accompanied in any measure by human agency or negligence. It is not unusual that when shipped under the most favorable conditions and attended with the greatest of care on the part of those in charge of the train, livestock often will be received at destination in a condition by no means equal to that which they enjoyed at the point of shipment. The rule under which common carriers may exonerate themselves from the charge of negligence was established, no doubt, in recognition of these facts so that if the carrier establishes the fact that it exercised due care in handling the shipment, the presumption must be that the damage was caused by the nature of the animals themselves or the natural hazards of such a shipment and not by anything that could have' been avoided by the carrier. In the case of livestock, which may, and frequently do, suffer injuries that are not attributable to the negligence of the carrier, if the rule under which the carrier is permitted to exonerate itself by showing an. absence of negligence on its part were attended by the ■further requirement that in case of such injury it must also establish the exact cause thereof, the rule which allows it to exonerate itself would become a vain thing.

While this identical question has not been .passed upon by our own courts as far as we are able to ascertain, it has been before the courts of other states and generally, if not invariably, decided against the contention of defendant in error. Southern Pacific Co. v. Itule, 51 Ariz. 25, 74 P.2d 38; Bowie Lbr. Co. v. Yazoo & M. V. Ry. Co., 14 La.App. 454, 131 So. 689; Western Ry. Co. v. Harwell, 91 Ala. 340, 8 So. 649; Central of Georgia Ry. Co. v. Patterson, 17 Ala.App. 305, 84 So. 471.

In cases such as this, where the carrier by competent and uncontradicted evidence, completely exonerates itself from an implication of negligence, the burden of proceeding with the evidence and establishing his case then falls to the plaintiff. In such case it is not the duty of the carrier to establish the exact cause of the injury. Indeed, the cause or manner in which it happened, in the absence of negligence, becomes immaterial unless the plaintiff can rebut the testimony by which the carrier exonerates itself from the implication or charge of negligence.

After establishing the fact that the cattle were promptly transported from the point of shipment to their destination without negligence on its part by plaintiff in error, the defendant in error failed to adduce any further testimony or in any manner rebut the evidence presented by plaintiff in error but stood upon the proposition that plaintiff in error was, under the law, an insurer of the cattle and could not relieve itself by showing that the shipment was made without negligence on its part. The law does not support the defendant in error in this contention and he was, thergfore, not entitled to a judgment.

We have carefully considered all of the contentions made by the parties and, in our opinion, the action of the court in rendering judgment in favor of defendant in error was contrary to the evidence and the law applicable to the case. The case seems to have been fully developed and we conceive no benefit that would result to any of the. parties by another trial. The judgment of the trial court is, therefore, reversed and judgment will be here rendered that defendant in error take nothing by his suit and that he pay the costs of the trial court and of this court.

On Motion for Rehearing.

In deference to the earnest and able argument presented by defendant in error in his motion for a rehearing, we deem it appropriate to say that our holding in the original opinion does not have the effect of changing, nor does it in any manner conflict with the doctrine so often expressed by the courts of this and many other jurisdictions to the effect that, under the common law, which by statute is the rule of decision in this state, a common carrier must rebut the implication of negligence created by proof of delivery to it of livestock in good condition and redelivery at the point of destination in damaged condition. Nor do we question the rule that the carrier may exonerate himself only by showing that the damage occurred through one of the excepted causes and that the carrier was not guilty of negligence in connection therewith.

Defendant in error calls our attention to the holding of this court in Panhandle & S. F. Ry. Co. v. Andrews, 278 S. W. 478, 482, wherein, speaking through Chief Justice Hall, we said: “Where the loss is not due to the excepted causes, proof of negligence is immaterial, and the carrier cannot escape liability by proving reason- ■ able care and diligence.” He suggests that our holding in the instant case is in conflict with our holding in that 'case. In the Andrews case, a different question was being discussed, viz., an injury to the property that was inflicted by an agency outside of, and not included in, the excepted causes. The facts in this case remove it from the rule there being discussed because they show that, when the cattle were delivered to plaintiff in error, they were in good condition and that, when they were delivered at the point of destination, one of them was dead and two others were crippled. The exact nature of the injuries to the crippled cattle was not shown nor was the exact cause of death to the other one explained. The death and injuries were not shown to have resulted from causes other than those which may have been received in an ordinary shipment without negligence on the .part of the carrier. They were such as could have occurred by reason of the nature of the animals which were being transported under the conditions which accompany all shipments of such livestock. In such case the law is well settled that, where the exact cause of the injuries is not known, it will be presumed the injuries occurred through the nature, propensities, weakness ■or inherent vice of the animals involved in the shipment, where the carrier exonerates Itself of any negligence that could have caused the injuries.

In the case of Davis, Director General, v. Sullivan & Opry, Tex.Com.App., 258 S.W. 157, 161, it is said:

“If the carrier has exercised that degree of diligence and foresight in the transportation of live animals as under the particular circumstances of the shipment constitutes ordinary care, and still they are delivered in a damaged condition, the damage sustained would be attributed alone to the inherent vices of the animals, where that is the issue. Or, in other words, the exclusion from the carrier’s liability of such loss and injury as does not arise from, or is not contributed to by, its negligence, merely leaves the shipper without compensation for the loss and damage which, theoretically at least, his cattle would anyhow have sustained on account of their inherent nature, and for which the carrier is not liable in any event. * * *
“When the shippers proved delivery to, and acceptance by, the originating carrier of the cattle, and losses and injuries at destination, a prima facie case was made out such that to relieve themselves of liability the affirmative was on the carriers to show such losses and injuries to have occurred from some of the excepted causes. They could have met or rebutted the prima facie case so made out by showing that they exercised such diligence and foresight in the handling of the cattle as amounted to ordinary care, or that the injuries arose from the negligence of the shippers in overcrowding their cattle in the car.”

To the same general effect are the holdings in the cases of St. Louis, B. & M. Ry. Co. v. Murray, Tex.Civ.App., 40 S.W.2d 949, and Kansas City, M. & O. Ry. Co. v. Cauble, Tex.Civ.App., 286 S.W. 478.

In the early case of Ryan & Co. v. M., K. & T. Ry. Co., 65 Tex. 13, 57 Am.Rep. 589, in discussing this question, our Supreme Court, speaking of the carrier, said: “He may rebut it (the prima facie case) only in one way, and that is by showing that the goods were lost by one of the exceptions known to the common law, or one of the special exceptions reserved in his contract with the shipper. If, by neither a common law exception, or one specially reserved, he is exonerated, he must show that the loss happened without negligence on his part.”

Defendant in error again insists that before it could be exonerated from negligence, plaintiff in error must not only show that it was not guilty of negligence, but must go further and show the specific cause of the injuries to the cattle. As we have stated, the exact manner in which the cattle were injured is not shown by the record but, inasmuch as they undoubtedly could have been injured as they were by the natural disposition of the cattle themselves and the consequences of transporting them and that plaintiff in error proved by uncontradicted testimony that it was not guilty of any negligence in connection with the shipment, following the cases above cited, it will be presumed that the injuries occurred as a natural and ordinary consequence of railway transportation of live animals and their nature, disposition and propensities. It will be seen, therefore, that the common law rule contended for by defendant in error is upheld rather than ignored by our holding on this question. In other words, the effect of -our holding is that negligence being eliminated, as it was by the proof in this case, the presumption is that the injuries occurred, as they could have occurred, through one of the excepted causes, viz., the inherent vice, the nature or the propensities of the animals involved in the shipment. Gulf, C. & S. F. Ry. Co. v. Downs, Tex.Civ.App., 70 S.W.2d 318; Leon v. Hines, Tex.Civ.App., 223 S.W. 239; Gulf, C. & S. F. Ry. Co. v. Helms Bros., Tex.Civ.App., 210 S.W. 853; Fort Worth & D. Ry. Co. v. Berry, Tex.Civ.App., 170 S.W. 125; Wabash R. R. Co. v. Johnson, 114 Ill.App. 545; Illinois Central Ry. Co. v. Teams, 75 Miss. 147, 21 So. 706; Talbott v. Payne, Director General, 90 W.Va. 280, 111 S.E. 328.

The motion for rehearing will be overruled.