text:
    HILL v. THOMAS.
    No. 3681.
    Court of Civil Appeals of Texas. Beaumont.
    May 23, 1940.
    Rehearing Denied June 5, 1940.

      Richard & A. P. Mays and Claude L. Milburn, all of Corsicana, for appellant.
    Justice & Justice, Harry Boyd, W. R. Thomas, G. W. Allison, and Austin Loftis, all of Athens, for appellee.
   WALKER, Chief Justice.

This was an action by appellee, Mrs. E. E. Thomas, a feme sole, against appellant, Ross B. Hill, to cancel a deed dated May 11, 1938, whereby she conveyed to appellant 160 acres of land in Henderson county, and to recover the title and possession of the land.

For cause of action, appellee alleged that about November 1, 1937, she met appellant at the home of her friend, Mrs. Iverson, in .Corsicana; that soon after meeting her appellant began making love to her; that about December 25, 1937, he proposed marriage to her and she accepted; that she insisted he set a date for their mar•riage, which at first he refused to do, but about May 10, 1938, he promised that he would marry . her on her birthday, on the 18th of June, 1938, “if she would make him a deed to her property at that time”; and she accepted his offer and on May 11, 1938, conveyed him the property in controversy “for the sole consideration” of his promise to marry her. We quote from the petition:

“That after the making, execution and delivery of said deed, they went along together as sweethearts and often discussed their approaching .marriage; that prior to June ■ 18th, she had made- her wedding trousseau and all preparations for the coming wedding on June the 18th, and that on June the 18th, the defendant claimed that he was sick and they could not make the trip, as they had intended, -to Dallas, Texas, where they were to be married, but that on June 20th that she and the said Ross B. Hill did go to Dallas in a car for the sole and only purpose of getting married; that when they reached Dallas, they drove to and by the court house, but that he never did stop to secure the license or to make any effort to secure the same; that when they returned from their trip to Dallas the plaintiff inquired of the defendant why he had not secured the license to marry her and why he had not married her; and he then told her he did not intend to marry her at all.

“The plaintiff says that the said Ross B. Hill, in order to secure the execution and delivery of said deed to himself, fraudulently represented to the plaintiff that he was in love with her, and fraudulently represented to her that he intended to marry her, and fraudulently agreed with her that he would marry her in consideration of the making, execution, and delivery of said deed to him; that this plaintiff believed said fraudulent representations so made to her, and relied thereon in the making, execution, and delivery of said deed to said defendant, and she would not have made said deed but for such promise on the part of the defendant, which was fraudulently made to her for the sole and only purpose of the making, execution and delivery of said (deed) to him.

“The pláintiff further says that after the defendant had told her that he did not intend to marry her, that she then demanded of him that he return to her said deed that she had given to him; but he refused to do so, and that after she had employed an attorney to bring suit for said property, that he then placed said deed of record in Henderson County, Texas, where the same is now of record in the deed records in Vol. 222, page 442, and it was placed of record on the-day of-A. D. 1938, and that said deed so of record cast a cloud upon this plaintiff’s title to said land.”

The prayer was for title and possession of the 160 acres of land, for writ of possession, rents, damages, and costs of suit, and that the deed made by her to appellant, which had been recorded in Vol. 222, page 442 of the deed records of Henderson county, be set asidé and held for naught and removed as a cloud upon her title.

Appellant answered by general demurrer, special exception that appellee had plead “inconsistent remedies,” general denial, and not guilty.

On the verdict of the jury, answering special issues, judgment was rendered in favor of appellee, cancelling the deed she had executed to appellant, and awarding her title to her property, with writ of possession, from which appellant prosecuted his appeal to the Dallas Court of Civil Appeals. The case is on our docket by order of transfer by the Supreme Court.

We overrule appellant’s proposition that the petition was subject to the general demurrer, on the ground that apr pellee failed to allege that, at the very time he made his promise to marry her on consideration that she convey him the land in controversy, he did not intend to keep his promise. Appellant announces a. correct legal proposition that, where the cause of action is predicated upon the use of a promise to accomplish a fraudulent purpose, the complaining party must allege and prove that, at the time the party gave the promise, there was no intention on his part to perform it. Rapid Transit Railway Co. v. Smith, 98 Tex. 553, 86 S.W. 322; Chicago, T. & M. C. Railway Co. v. Titterington, 84 Tex. 218, 19 S.W. 472, 31 Am.St. Rep. 39; Touchstone v. Staggs, Tex.Civ. App., 39 S.W. 189; McFarland v. McGill, 16 Tex.Civ.App. 298, 41 S.W. 402; Chambers v. Wyatt, Tex.Civ.App., 151 S.W. 864; Beaumont Carriage Co. v. Price & Johnson, Tex.Civ.App., 104 S.W. 499. There was no affirmative allegation in appellee’s petition that at the very -time appellant promised to marry her, on condition that she' convey to him her property, he did not intend to perform it. But as against the general demurrer — the point was not raised by special exception — the petition was entitled to all the intendments deducible from the facts alleged. She alleged that appellant made his promise fraudulently “for the sole and only purpose of the making, executing and delivery” of the. deed by her to him. If his “sole purpose” —a fraudulent purpose — in making the' promise was simply to secure the deed, then he had no intention, or purpose, at the time it was made to perform it. Also she alleged that the promise was made on May 10, 1938, to marry her on June 18, 1938, and that she executed and delivered the deed to him on May 11, 1938. In-this connection, she alleged the trip to Dallas, which was to be her wedding trip, and that appellant refused to marry her on the trip. She alleged facts showing that there was no impediment to the execution by appellee of his promise from the day he made it until the day it was broken, with many opportunities for its due execution. Indulging the reasonable intendments in support of the allegations of the petition, it was not subject to the general demurrer.

Having alleged that appellant made his promise to appellee in fraud and, at the time it was made, that he did not intend to keep it, appellee rested under the burden of sustaining her allegations by' proof. Appellant’s second point is that there was no proof in support of the issue that, at the time he made his promise to marry appellee, he did not intend to keep it. We give the substance of appellee’s testimony on this issue. At the time appellant gave appellee his promise to ma.rry her, on condition that she convey to him the property in controversy, she was a feeble old woman, 81 years old, confined to her bed a-part of the time as the result of a stroke of paralysis; appellant was a vigorous man, in good health, about 59 years old. Appellee owned, at the time appellant made her the promise, the 160 acres of land in controversy and about $300 in money; appellant owned nothing except an old automobile, under mortgage — he got from ap-pellee her land and all her money, had her pay off the mortgage on his automobile and, at the time he' refused’to marry her, had secured from her all her money except one cent. Appellee, a feeble old widow, had no one to advise her and proteót her, owning the property listed ‘above; appellant began making love to her from the time he first met her, hugging and kissing her many times during the courtship from the time he met. her until he broke' his promise to marry her. He often told-her he loved her, petted her, sat by her bedside- and stroked her hands when she was sufTi fering pain.. When she was-not able -to. walk to her bed room he carried her in his> arms and put her to bed. He caressed her' and she caressed him when they entered .a-room together, and when he came up to her in the dining or sitting room or when she came up to him. He made her many promises to take care of her and to make' life easy for her, and to bury her by’the side of her last husband when she died.' As' stated above, this love-making on his 'part continued from the time he met her until' after he got the deed from her, and then until he had secured from her all her money.

Though he was present in court when the case was tried, sitting by the side of his attorneys- — this statement was made on oral argument — he offered no testimony in his defense.

It would be a mockery of logic to hold that the testimony of appellee -did not raise the issue that appellant’s promise to marry her was fraudulently made for the sole purpose of securing her property, and with no intention, at the time the promise was made, to perform it. The judgment of the court clearly has support in the evidence.

On the facts of this case, it was not prejudicial error to refuse to define the term “fraudulent” as used in the issue submitting to the jury appellant’s promise to marry appellee.

The judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.


source: Caselaw Access Project

author: FUNDERBURK, Justice.

license: Public Domain

text:
    CRAZY WATER CO. v. COOK.
    No. 2009.
    Court of Civil Appeals of Texas. Eastland.
    April 19, 1940.
    Rehearing Denied May 17, 1940.
    W. O. Gross, of Mineral Wells, for appellant.
    Culbertson, Morgan, Christopher & Bailey, of Fort Worth, and J. R. Creighton, of Mineral Wells, for appellee.
   FUNDERBURK, Justice.

This suit was brought by Mrs. Rose L. Cook against Crazy Water Company, a corporation, owner of Crazy Water Hotel of Mineral Wells, Texas, to recover damages allegedly resulting from personal injuries sustained by plaintiff while taking a bath. Plaintiff alleged, in effect, that after having, for a consideration, arranged with the defendant to give her baths as it had offered to do, and after having noti- - fied the defendant that “she was rather heavy and by reason of her suffering arthritis was'unable to be of much assistance to the attendants who were to administer the hath”, and explaining “that it would he difficult to handle her” and suggesting that “it required attendants of sufficient strength to handle her”, she was assured by defendant’s representative that she would be placed “in charge of employees and attendants fully competent and with strength enough to handle her.”

She alleged she was placed under the care of two negro women who attempted to give her a bath in an ordinary slick bath tub; that said attendants were not physically able to handle her properly and dropped her in the bath tub, inflicting bruises and a fracture of her left arm. In all, including the above, there were three acts and six omissions, some being wholly or partially inclusive of others, alleged as negligence and proximate causes of said injuries and the resulting damages in the total sum of $12,955.86. Of said amount of damages $2,955.86 was for alleged reasonable and necessary expenses consisting of hospital bills, doctors’ bills and nurses’ bills.

Upon a jury trial, all issues were by the Special verdict of the jury found in favor of the plaintiff. In accordance with such verdict judgment was rendered awarding plaintiff recovery of damages in the sum of $4,800, of which $2,300 was for hospitals’, doctors’ and nurses’ bills. The defendant has appealed. The parties will be referred to as plaintiff and defendant, the same as in the trial court.

Special issue No. 17 called for a finding of the amount, if any, reasonably and necessarily expended by plaintiff for hospitals’ bills, nurses’ bills and doctors’ bills incurred as a direct and proximate result of plaintiff’s injuries. The finding upon this issue was $2,300. Defendant contends there was no evidence to sustain a finding of any amount of hospital, or any amount of nurses’ bills, and that it was error to submit such issue.

This point may appropriately be considered in connection with another. Over objection the court permitted the plaintiff on the day of the trial to attach several pages of exhibits to her petition, consisting of purported copies of itemized hospital bills and the originals of three purported receipted doctors’ bills. Said purported exhibits constituted, neither in whole nor in part, the cause of action sued on, and under Rule 19 (Rules. for the District and County Courts, 142 S.W. xvii) were' improperly permitted to be attached as exhibits to the pleading. City of Paris v. Bray, 107 Tex. 188, 175 S.W. 432. See, also, authorities cited in Durham v. Foust, Tex.Civ.App., 64 S.W.2d 1027, 1029.

These exhibits were not introduced in evidence. They, or at least a part of them, were not identified by any evidence as to items or amounts. In the Durham case, supra, we said: “Had the witness testified to the amounts, dates, etc., as evidently was shown in the memoranda, then it would have been unnecessary that the memoranda be introduced.” Regarding the subject matter of the exhibits as mere memoranda — and we think they were certainly no more than that — the same statement is applicable here. The result is that there was an absence of any evidence to warrant the jury in finding the amount of the damages for reasonable and necessary expenditures to be $2,300. Upon the two questions here considered, one in connection with the other, it is our conclusion that the court erred in permitting the so-called exhibits to be attached to the pleading and further erred in submitting special issue No. 17 as against the objection that the evidence did not warrant its submission.

It is suggested that the error may be cured by a remittitur. However, it is not proposed to remit the entire amount of $2,300. Upon the theory that the question is one as to the excessiveness of the verdict, it is suggested that the remittitur may be ordered only as to that part of the $2,300, if any, -not supported by any' evidence. However, the question, we think, is not one of excessiveness of the verdict. The case of World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962, 865, relied upon by plaintiff, distinguishes itself from a case like this in words as follows: “The holding herein is to be distinguished from cases * * * of distinct items of recovery, supported by affirmative proof, but incapable of separation from others involved.” The proposition of law supported by the decision in the Hicks case, as to which there had been some prior conflict of decision, is applicable only “when there is no other error” than excessiveness of the verdict.

We are of the opinion that it was error for the court, over objection of the defendant, to defer its ruling upon defendant’s motions to suppress certain answers of witnesses in depositions until after the parties were required to announce ready for trial and the depositions were offered in evidence. The objections, most of them at any rate, related to the manner and form of taking. They were objections subject to Art. 3765, R.S.1925. They were objections required to be made in advance of the trial. Houston & T. C. R. Co. v. Haberlin, 104 Tex. 50, 133 S.W. 873, 134 S.W. 411. In the absence of request by one or the other of the parties for a ruling upon the objections before beginning the trial, the court would have been authorized to delay action, as was done. That, it is believed, is the extent of the holding in Coleman v. Colgate, 69 Tex. 88, 6 S.W. 553; Southern Pac. R. Co. v. Royal, Tex.Civ.App., 23 S.W. 316. Those cases are not believed to be authority sustaining the correctness of the procedure, complaint of which is here made. Here the defendant was insisting upon a ruling before being required to announce ready for trial. In Coleman v. Colgate, supra, if the party who objected to the action of the court on the ground that such action, if any, ought to have been taken before the trial was begun, had requested such action before the trial, and had duly preserved exception to the action of the court in deferring its ruling, a different question, we think, would have been presented. The action here complained of seems to us to be analogous in principle to the action of the court in deferring a ruling upon special exceptions to a pleading until after the evidence is in. As to the latter we concur in the view as expressed in Western Union Tel. Co. v. Ashley, Tex.Civ.App., 137 S.W. 1165, that such procedure is erroneous. It seems clear that the purpose of the statute (said Art. 3765) will largely be defeated if, the court having his attention called to the •matter may, notwithstanding the objection of an interested party, withhold action upon motions to suppress depositions on account of errors in the manner and form of taking until after announcement of ready for trial and the deposition is offered in evidence.

It is believed that the other grounds relied on for reversal of the judgment are untenable, and without further discussion they are overruled.

For the reasons stated, it is our conclusion that the judgment should be reversed and the cause remanded. It is so ordered,


author: JACKSON, Justice.

text:
    MOORE COUNTY CARBON CO. v. WHITTEN.
    No. 5165.
    Court of Civil Appeals of Texas. Amarillo.
    May 20, 1940.
    Rehearing Denied June 3, 1940.

      Don Emery and R. L. Foster, both of Bartlesville, Okl., and E. H. Foster and Tom D. Lumpkin, both of Amarillo, for appellant.
    Archer & Archer, of Corpus Christi, and Shannon, Ochsner & Little and Joe Harlan, all of Amarillo, for appellee.
   JACKSON, Justice.

The appellee, M. O. Whitten, instituted this suit against the appellant, Moore-County Carbon Company, a corporation, to recover the sum of $1,400 damages — the wages he would have received as employee — under a supplemental contract with appellant, between March 29, 1938, and March 1, 1939, but for the breach of said employment contract and the wrongful discharge of appellee by appellant. In the alternative he asked that in the event it was held that his contract with appellant covered only the period of time between March 29, 1938, and August 1, 1938, he be adjudged a recovery for the sum of $540 for said breach and wrongful discharge.

The appellee attaches a copy of the contracts or working agreements upon which he sues to his petition and makes them a part thereof.

The facts alleged as a cause of action will sufficiently appear in the issues submitted to the jury and their findings thereon, and an extended statement of the allegations is unnecessary.

The appellant answered by general demurrer, numerous special exceptions and-general denial.

The appellee was admittedly discharged March 29, 1938, by the appellant.

In response to special issues submitted by the court the jury found, in effect, that the appellee requested C. C. McIntosh, the superintendent of appellant, to appoint a member of a settlement committee as stipulated in the agreement to serve in adjusting the differences between him and appellant growing out of his discharge; that the superintendent refused to appoint or name anyone to act as a member of such committee; that the appellee, within five days from the time of his discharge, gave written notice to the superintendent that he was contesting his discharge; that the superintendent informed appellee about March 30, 1938, that the company would not submit any controversy concerning appellee’s discharge to arbitration; that appellee would have voluntarily continued in the employment of the appellant company until August 1, 1938, had he not been discharged; that the appellee was not given permission by the superintendent of the company to absent himself from work on the afternoon of March 19, 1938.

On these findings judgment was rendered for appellee for the sum of $528 with interest at 6% per annum from August 1, 1938, until paid.

Appellant assigns as error the action of the court in overruling its general demurrer to appellee’s petition and in refusing to direct a verdict in its behalf because the working contract or agreement was indefinite and uncertain as to the period of time appellee should be employed since he was not required to remain in the employ of appellant for any definite period nor appellant required to keep ap-pellee employed for any definite time.

The provisions of the contract material to a consideration of these assignments are that the agreement was made between the appellant and the Moore County Carbon Company Employees’ Association, composed of a majority of the employees at said plant, and provided the agreement should be effective from August 1, 1937, until August 1, 1938, and each year thereafter unless cancelled or notice of a desire to amend was given by one party thirty days prior to any anniversary of the agreement; that the employees should work forty hours per week at the rate of 75‡ per hour, also stipulates for lay-offs, re-employment, promotions and seniority.

It will be observed that the working agreement provides that it shall be effective for one year. There is no stipulation for a penalty or liquidated damages to'be charged to either party on account of a breach but the law is that an employee who is ready and willing to perform his part of the contract of hire who is unlawfully discharged during the term agreed upon may maintain an action for damages. '29 Tex.Jur. 33, para. 17.

In Gulf, C. & S. F. Ry. Co. v. Jackson, 29 Tex.Civ.App. 342, 69 S.W. 89, 91, the court holds: “The evidence is, we think, sufficient to show that appellant contracted to employ the appellee for a year, provided the work of repairing its track was not complete before the expiration of that time. It was not necessary, in order .to make this contract binding upon appellant, that the appellee should have agreed to work for that length of time. It was competent for the parties to make a contract binding upon one of them for a certain length of time, but which the other might terminate whenever he saw fit. Such being, in our opinion, the character of the contract shown by the evidence in this case, the appellant would be liable for all of the damages which were directly caused by its breach of the contract.”

The general rule is, under the decisions of this State, that a working agreement which may be terminated at the will of one of the parties may also be terminated by the other party but in the cases so holding there was no express agreement by the employer not to wrongfully discharge the employee and a contract which so stipulates does not fail for want of mutuality, certainty or consideration. St. Louis, B. & M. Ry. Co. v. Booker, Tex. Civ.App., 5 S.W.2d 856. To the same effect is the holding in Harper et al. v. Local Union No. 520, International Brotherhood of Electrical Workers et al., Tex. Civ.App., 48 S.W.2d 1033.

In Mansell v. Texas & P. Ry. Co. et al., Tex.Com.App., 137 S.W.2d 997, 999, in answer to the certified question, “Does the fact that appellants allege a contract of employment that is wholly indefinite as to the term of such employment make of appellants’ suit a cause of action upon a contract terminable at the will of the employer?”, the court holds that such a contract of employment could not be terminated with impunity by the employer even though indefinite as to the time employment should continue.

While in our opinion this contract provided that employees should work for the company at the price stipulated therein for one year, a definite time, but should we concede that it does not, nevertheless, under the authorities, the appellant would not be authorized to breach such contract and wrongfully discharge an employee because the time of the employment was not certain and definite.

The appellant presents as error the action of the court in refusing to direct a verdict in its behalf since article 6 of the working agreement stipulates ■ for the ad- ■ justment by arbitration of all disagreements and disputes arising between employer and employee under the terms of the agreement or on account of the discharge by appellant of an employee and there was no evidence, it asserts, to show that appellee complied with these stipulations for arbitration and none that appellant prevented appellee from complying therewith.

Article 6 of the working agreement is as follows:

“Application of Agreement and Settlement of Disputes.
“Adjustments of any misunderstanding, dispute, or disagreement arising out of the application of the terms of this agreement, or by reason of the discharge of an employee, shall be handled as follows:
“(a) The employee affected shall, personally, or through the Moore County Carbon Company Employees Association’s Grievance Committee, first seek adjustment of the issue with the employee’s immediate foreman.
“(b) Failing to secure satisfactory settlement, said grievance committee, or the employee himself shall have sufficient time to investigate and seek adjustment with the employee’s foreman or with successive superior foremen up to and including the head of the department until satisfactory adjustment is reached.
“(c) If no satisfactory adjustment can be reached within ten (10) days after appeal finally to the head of the department, the case shall be referred to the hereinafter designated settlement committee for final decision, and the finding of the settlement committee shall be binding upon all parties concerned. '
“(d) The settlement committee shall consist of one member to be appointed by the employee and one to be appointed by the Company. If this committee of two fails to reach an agreement on the controversy witjiin ten (10) days, the two members shall then select a third member of the committee in order to enable agreement. If the appointees of the employee and of the Company, fail to agree on the selection of the third member within five (5) days after the expiration of the ten (10) day period previously mentioned, then the Commissioner of Conciliation of the U. S. Department of Labor shall act as the third member, or appoint the third member.
“(e) In case of controversy over the discharge of an employee, the employee shall, within five (5) days from date of discharge, serve written notice upon the local superintendent of the Company of said complaint or controversy. He shall also file his complaint with the Moore County Carbon Company Employees Association’s Grievance Committee who shall investigate the case and handle as herein-above provided. In the event this committee holds that the employee was not unjustly 'discharged, then the case shall be closed.”

It will be noted that article 6 stipulates that the employee affected may personally seek an adjustment with his immediate foreman. If he fails he may seek an adjustment with the superior foreman, including the head of the department, until a satisfactory adjustment is reached. If no adjustment is reached after appeal to the head of the department the case may be referred to a settlement committee which shall consist of one member appointed by the employee and one appointed by the company and if they fail to agree the two shall select a third member of the committee. If the two fail to agree on the third member the Commissioner of Conciliation of the U. S. Department of Labor shall either act as the third member or appoint the third member of the settlement committee.

The testimony shows without controversy that appellee sought to adjust the complaint he made concerning his discharge with his immediate foreman but, instead of attempting to adjust the difficulty, this foreman advised the appellee to see C. C. McIntosh, the superintendent. Appel-lee requested the chairman of the association to call a meeting of the grievance committee but the chairman refused. He applied to the superintendent for an adjustment of the dispute but received no consideration. He gave written notice to the superintendent, who was head of the department, of his desire to contest the discharge and requested the superintendent to appoint someone to act as a member of a settlement committee. According to the findings of the jury the superintendent refused to appoint anyone to act as such member and advised appellee that the company would not submit the controversy concerning the discharge to arbitration.

In 10 Tex.Jur. 442, para. 257, the-law as announced by the writer is that a party in default may not complain of the recovery of damages nor set up a subsequent default by the other party to relieve his default or breach of the contract; nor may he urge a subsequent default by the other party where the contract provides for concurrent acts and one-party refuses to perform or where the obligation of performance by one party presupposes the doing of some act by the other party which he fails or refuses to do. .

In Miller et ux. v. Hodges et al., 260 S.W. 168, 172, the Supreme Court, says: “It is a universal maxim that, where the obligation of a party depends upon a certain condition being performed, and the fulfillment of that condition is prevented by the act of the other party, the condition is considered as fulfilled.” This rule .is applied to the party who first breaches contracts of employment or working agreements. Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744, and authorities cited. In our opinion, the record discloses without substantial dispute that appellant refused to do the acts required of it by the provisions of the contract and prevented appellee from .complying with section 6 providing how disputes and controversies should be settled between the employer and the employee, and is not in a position to urge as a defense the failure of appellee to comply therewith.

The appellant presents as error the action of the court in disregarding the finding of the jury on Special Issue No. 7 which, in effect, is that appellee was not given permission by the superintendent of .the company, C. C. McIntosh, to absent himself from work on Saturday afternoon of March 19, 1938. The only provisions in the contract that would affect this contention are that an employee should report regularly for work as required or notify the company in advance of sickness or unavoidable conditions to prevent reporting; diligently fulfill the requirements of his job and render good service to the-employer; that if he works in case of an emergency any week more '.than ' forty' hours he should receive the same compensation for such overtime as he was paid per hour for regular work.

A motion for judgment was filed by both •parties and a motion for judgment non ob-stante veredicto was urged by appellant and the court, after hearing counsel on the law, announced that in his opinion Special Issue No. 7 as submitted was immaterial under the pleadings and evidence introduced, should not have been submitted and should be disregarded in entering the judgment. We are of the opinion that the court was -correct in holding that such issue was immaterial.

The appellee was permitted tó continue work until March 29th although the superintendent knew he had been ab-; sent on the 19th; The appellee had already worked forty hours that week and was not required to work on the ,19th since that, was proration day according to the testimony of appellee and C. C. McIntosh, the superintendent. The contract does not require that an employee get permission to be absent from work the remainder of the week after he has worked forty hours. If it be conceded that when an emergency arises after the employee had done a full week’s work and he. knew of such emergency he should secure permission to be absent, no issue of such emergency on the Saturday afternoon in question was submitted to the jury and none requested and if such issue was incidental the court was authorized to pass on the issue. Ormsby et al. v. Ratcliffie, 117 Tex. 242, 1 S.W.2d 1084. If the issue was material to appellant’s defense and it was entitled to have it submitted under its general denial, such issue was abandoned by the appellant. Wichita Falls & Oklahoma Ry. Co. et al. v. Pepper, Tex.Sup., 135 S.W. 2d 79. Appellant concedes that the appel-lee was discharged and the only fact presented for a justification therefor is the failure of appellee to get permission of the superintendent to be absent from work on Saturday afternoon of March 19th. The appellant was not authorized under this .record to discharge the appellee. In this connection we cite 29 Tex.Jur. 29, para. 14 ; Elliott-Greer Office Supply Co. v. Martin, Tex.Civ.App., 54 S.W.2d 1068; G. A. Kelly Plow Co. v. London, 59 Tex.Civ.App. 208, 125 S.W. 974; Tickler v. Andrae Manuf’g. Co.; 95 Wis. 352, 70 N.W. 292; Hamilton et al. v. Love, 152 Ind. 641, 53 N.E. 781, 54 N.E. 437, 71 Am.St.Rep. 384.

The appellee, in a cross-assignment, urges as error the action o.f the court in refusing to permit him to recover under the supplemental agreement entered into July 9, 1938, by the terms of which, if applicable to him, he contends that he was entitled to recover $1,400.

The ruling of the court 'on this contention of appellee, in our opinion, is correct,

The cross-assignment. does not, however, require consideration. No appeal was prosecuted by appellant from the part of the judgment denying appellee a recovery on this supplemental contract. The appellee filed no motion .for a new trial, filed no appeal bond and failed to perfect an appeal from the decree denying him a recovery under the supplemental contract; The appelleep filed an exception :to • filie ruL ing of- the court denying him a recovery under the supplemental-agreement but this is. not .sufficient to.have this court review the complaint made in the cross-assignment. Towery et al. v. Plainview Building & Loan Ass’n, Tex.Civ.App., 99 S.W.2d 1039, in an opinion on motion for rehearing, and authorities cited.

The judgment of the court is affirmed.


author: WALKER, Chief Justice.

text:
    FEDERAL UNDERWRITERS EXCHANGE v. TURNER.
    No. 3702.
    Court of Civil Appeals of Texas. Beaumont.
    April 29, 1940.
    Appellant’s Rehearing Denied May 17, 1940.
    Appellee’s Rehearing Denied May 18, 1940.
    Gordon, Sharfstein, Bell & Weinert, of Beaumont, for appellant.
    Adams & Hillin, of Jasper, for appellee.
   WALKER, Chief Justice.

This is a workmen’s compensation case. Appellee, D. E. Turner, on his appeal-from an adverse award of the Industrial Accident Board, alleged that he was injured on the 11th day of August, 1939, in the course of his employment with Peavy-Moore Lumber Company, and that appellant, Federal Underwriters Exchange, was the compensation insurance carrier. Appellant answered specially that at the time appellee was injured he was in’ the employment of an independent contractor, “W. R. Parker or some other person.’’ The jury found in. appellee’s favor on all determinative issues on his claim of total, permanent disability, and that he “was not the employee of an independent contractor,” and fixed his compensation' at $8.65 per week. On the verdict .of the jury, judgment was entered in appellee’s favor against appellant for total, permanent incapacity for 401 weeks beginning the 11th day .-of August, 1939, at $8.65 per week, from which appellant has duly prosecuted its appeal to this court.

By its first three assignments of error, appellant complains (a) of the- action of the court in overruling its motion for-an instructed verdict, (b) that the evidence -did not raise the issue that appel-lee was an employee of Peavy-Moore Lumber Company at the time he was injured, (c) that the finding of the jury that appellee “was not the employee of an independent contractor” was against the’ overwhelming weight and preponderance of the testimony. The evidence on the issue of “independent contractor” was as follows (Q. & A. reduced to narrative):

Appellee D. E. Turner testified: “I was hired in May, 1939, by W. P. Bond. Mr. Bond is known- as putting out logs for Peavy-Moore; he lives down in there and has worked for them quite a -while, I suppose. Mr. Bond is employed by Peavy-Moore Lumber Company. He paid me for my work down there; he brought my payday to me in cash, which he went to the office at Deweyville and drawed. Mr. Bond requested me to go to work about the 15th or 20th of May, 1939. At that time my work was clearing the right-of-way in order for the trucks to get the logs out of the woods. The trucks hauling logs were not owned by Mr. Bond; they were independent trucks. They would pick up the logs and haul them out of the woods. To haul the logs the trucks had to have roads and that is where I came in. The log haulers were assigned strips of timber to haul, a certain definite area. I worked on the roads west of Gist on that six mile haul. I don’t know what arrangement Mr. Bond had with Peavy-Moore Lumber Company about working there. I don’t know anything about his contract with Peavy-Moore Lumber Company; Mr. Bond was the man who paid 'me, he brought my money and gave it to me in cash; he told me he would bring my money and he brought it. I went over to the office two or three times and got it. There must have been fifteen or twenty men working for Mr. Bond; I wouldn’t know exactly; drivers, swampers and teamsters. I didn’t do any truck driving. I did the swamp work on the road, clearing the roads of brush for the trucks. I have been pulled off one ga'ng and put on another gang; Mr. Bond requested me to .join the other gangs. I was swamping on the day I was injured; I don’t know if I was swamping for Mr. Parker’s trucks; I don’t know who the trucks belonged to; it was in the same logging operation down there. At the time I was injured I was being paid two dollars and a half a day. I have not been paid any compensation by Federal Underwriters Exchange, or any other insurance company.”

Tootsie Westbrook testified: “I worked with Mr. Turner in the woods. ■ He swamped. Mr. Parker had four men on that job, Oscar Arden, Claude Youngbldod, Mr. Turner and myself. When I speak of Mr. Turner, I mean the man sitting here at the end of the table. Mr. Turner swamped; cut brush. Mr. Parker instructed me what to do; no one else ever instructed me. Mr. Turner had not been working on this job very long, I don’t know who sent him on the Parker job. Mr. Parker paid me for the work I did out there; no one else paid me. I would go to his house or to his office to get the pay; I got it in cash.”

W. P. Bond testified — the W. P. Bond mentioned by appellee in his testimony: “I was logging during the months of July and August this year (1939) for Peavy-Moore Lumber Company, on a logging contract with' them. The contract was not in writing, but the job was continuous during July and August but not at the same place through the whole month of August; we got cut off some time in August, along about the 11th or 12th, maybe the 10th, I wouldn’t be too sure about that; they barred up the clearance and we had to lay off. Everybody was laid off, but up to that time it was a continuous job. Under my contract with Peavy-Moore Lumber Company I was to haul out the logs on the tract for so much a thousand. I didn’t cut the logs, they were cut by the company. I had nothing to do with cutting the logs. No one designated the logs that were to be hauled except that if they cut a log that wasn’t any account, one of their men would cull it, so I wouldn’t haul it; every log that was cut I had to haul it. They marked the cull logs; I had nothing to do with marking the logs. Logs were scaled by Jack Scavenger, an employee of the company. I didn’t do any of. the scaling, I accepted Mr. Scavenger’s scaling and was paid on the basis of his scale. We had certain strips, you know, and we had certain saws and wherever they sent them , saws, we followed them. I was to take it to Gist, that big job, take it to Gist and put it on the Company track; they got a road that connects there, The logs were scaled after they were delivered. I used eight or ten men on that job; I hired them. Peavy-Moore did not hire any of the men that worked for me. The company did not know what men worked for me; they didn’t keep any record of. the men that worked for me; the company didn’t at any time tell me what men to work; I fired the men that worked for me; the company didn’t exercise any control whatever over the men that worked for me; they didn’t have any right to determine the men who worked for me; I selected my own men.

“At one time I employed Mr. D. E. Turner. I employed him at different time; he worked for me several different times; the first time I remember right now of' him working for me was about two years ago; he cut logs for me; and then last year he worked on the road for me. That work was in Jasper county, lower end of Jasper county. He worked on the log roads. I believe that was in June, maybe July, I don’t' believe he worked for me in July; he worked in June; he must have worked two or .three weeks — I am not certain about the length of time he worked for me; I got through with him and laid him off — I don’t remember the date; it must have been about the first of July. After I laid him off he went to work for Mr. Parker, Mr. W. R. Parker; he was swamping for Mr. Parker. The work he did for Mr. Parker was a little different from the work he did for me. In his work for Mr. Parker he was with the team and mine was out on the main road. While Mr. Turner worked for me I paid him two dollars a day. I, myself determined his wage. Peavy-Moore made no requirement of me as to what I should pay my men. I don’t know how long Mr. Turner worked for Mr. Parker. No, I really don’t; I really don’t; he worked for Mr. Parker from the time he went to work for him, which must have been about the first of July, until sometime in August, maybe the first of August; we all got laid off. When I got my contract with Peavy-Moore Lumber Company I had no equipment of my own to haul the logs; I went out and hired my equipment; I go out and contract for these hauling jobs. I work about eight men; I pay them whatever I please. I do not carry workmen’s compensation. I know Mr. Walter Bean. He is woods foreman for Peavy-Moore Lumber Company. If Mr. Bean came out and told me to get on another tract I didn’t have to do it; we contract certain places. I had a contract here to take this 100 yard strip. If Mr. Walter Bean had come out and said ⅞ is too wet, let’s move over to the other side’ I probably would have done it, but I don’t think I had to. I might have done it if I wanted to. If I didn’t want to, I wouldn’t have had to give up my contract because I contracted to move logs off a specific tract.”

Mr. W. R. Parker testified: “My services was with Peavy-Moore Lumber Company. As I understand, Kirby Lumber Company owned the timber before it was ■cut, and Peavy-Moore Lumber Company bought it. I was with Peavy-Moore. ■ I worked four men, one of them was D. E. Turner. We were working on that dead timber job. My 'contract with Peavy-Moore was not in writing, only verbal. Under my contract I was to load and haul these logs to their track. The logs were scaled by Jack — about all I ever knew is Jack; he was employed by Peavy-Moore Lumber Company. I was paid according to his scale. ’ I was not paid in accordance with the number of men I had, but on the basis of the number of logs I delivered at Gist. Peavy-Moore did not particularly designate the logs I hauled. Of course, we — in this rotten timber, you understand, there was some of it too bad to go, and occasionally one of their men would come along and cross out certain logs that they wouldn’t take from Kirby Lumber Company; leave it right there and rot. I hauled the logs that were acceptable to Peavy-Moore; the logs that Jack marked. I was assigned territory along with Mr. Bond’s crew. No, I wasn’t working under Mr. Bond. I wouldn’t think so; we were together, just, merely together, you know, get up these patches of dead timber where they die, and on to another, just getting dead timber, not cutting the timber clean, but broken and dead stuff. Well, in fact, nobody designated the place where I would pick up the logs. Mr. Bond and I would verbally agree that I work on this side to keep from interfering with each other’s various truck and teams; we would start operating properly by placing a line or something and I would stay on this side and work. Peavy-Moore Lumber Company designated the tracts I worked on, but Peavy-Moore didn’t tell me; Mr. Bond — I was merely following his crew around. I was just following along with Mr. Bond’s crew. I don’t hardly know how to answer the question whether I was working with Mr. Bond or Peavy-Moore Lumber Company. My equipment was idle at the time and Mr. Bond told me I could get on the job if I wanted to put my stuff to work, so I went down and Peavy-Moore scaled the stuff and paid me for it. The four men that were working for me, I selected them myself. Peavy-Moore did not designate any of my men; they did not tell me to hire them; they did not make any requirement as to how many men I hire or who I hire; they did not make any requirement as to firing any of my men; they did not exercise any jurisdiction over my men at all — -none whatever. I was paid for my hauling by the thousand; $3.75 per thousand. I recall the wage I paid Mr. Turner; it was $2.50 per day. I knew what Mr. Bond had paid him; Mr. Bond and Mr. Turner told me; I raised Mr. Turner’s wages. My men received their pay from the money paid me by Peavy-Moore Lumber Company. Mr. Turner was employed by me the last two weeks in July. The amount I paid my men was put out there by. the name. When I paid them I would write this up before me to see what each one was supposed to draw; but the separate days was on this little time book that I lost track of, I couldn’t find the little weekly time book; I just happened to have this. I paid Mr. Turner myself. I kept my payroll myself. Peavy-Moore didn’t have any knowledge as to what my payroll showed as to the time of the men; they had no knowledge of my labor; they did not know what I paid my men. While I do not remember the dates, I would say that 'Mr. Turner was working for me the 11th day of August. As to my arrangements with Peavy-Moore, it was just a matter, it was all right for me to go and I did, on that particular job; it was all right for me to work and I didn’t ask any questions. Our logs was designated by figures and where the number — number 16 was mine and all my logs had 16 marked on the end and the scaler counted them in that way and that was credited to Mr. W. R. Parker. The arrangement with Peavy-Moore and Kirb)^ was if we hauled bad logs they would straighten that out among themselves; hut the hauler got paid. I was paid $3.75 per thousand. I heard Mr. Bond testify that he was paid $5.00 per thousand. I can’t account for the difference. That was none of my business; I didn’t know what he got until I heard him testify; probably that was something to do with the main line road; probably the Company allowed him that; that would be my guess. We built our own roads in the woods, otherwise Mr. Bond built the roads, my trucks followed those roads because I was along with Mr. Bond’s crew. My payroll was figured on the stumpage, or per thousand feet of logs I hauled. I paid my men about the 7th and 22nd of each month. Peavy-Moore held back as a reserve one week’s hauling. Though there was a reserve held back on my work I didn’t hold back on my men, I paid them up to date. I am acquainted with Mr. Walter Bean. He would come out on the job while I was working, but he never did direct me to do anything. Had he directed me, probably I would have obeyed him, if it wasn’t damaging to me.”

From the testimony we make the following fact conclusions. On the date of his injury,_ appellee was in the employment of W. R. Parker, who as an independent contractor was hauling logs for Peavy-Moore Lumber Company. Appellee was employed by Parker, who alone had authority to employ and discharge him; Peavy-Moore Lumber Company had no control whatever over appellee. Parker paid him his wages; at one time raising his wages, and the amount of his wages was beyond the control and without the knowledge of Peavy-Moore Lumber Company. Peavy-Moore Lumber Company had no information that appellee was employed by appellant, nor the amount of his wages, nor the nature of the work he was performing. The logs Parker hauled, were all cut, culled and' scaled by Peavy-Moore Lumber Company. Peavy-Moore-Lumber Company assigned territory to Parker to be logged by him but the company had no authority over Parker except to designate the logs to be hauled and the place where they were to be delivered; Parker was paid on the basis, of the logs delivered at the places designated by Peavy-Moore Lumber Company. Peavy-Moore Lumber Company had no control over Parker in any respect as to the details of his work. It had no control over him as to how he should perform his work, except to see that the hauling was carried out according to the terms of the contract and to accomplish the-, results contemplated by the parties in making the contract.

On our conclusion, Parker was an independent contractor under Peavy-Moore Lumber Company, and appellee was an employee of Parker and not of' Peavy-Moore Lumber Company. In Davis v. General Accident, Fire & Life Assurance Corpn., Tex.Civ.App., 127 S.W.2d 526, 529, this court said, Mr. Justice O’Quinn writing the opinion: “It is well settled law that an employer has the right to exercise such control over an independent contractor as is necessary to secure-the performance of the contract according to its terms and to accomplish the-. results contemplated by the parties in making the contract without thereby creating the relation of master and servant.”

The facts of Consolidated Underwriters v. Fitts, Tex.Civ.App., 106 S.W.2d 793, by this court, writ refused, sustain our conclusion, that on the facts of this case, Parker was an independent contractor. See, also, Southern Underwriters v. Freeman, Tex.Civ.App., 118 S.W.2d 367, writ refused; Jones-O’Shaughnessy Co. v. Bond, Tex.Civ.App., 79 S.W.2d 649; Manning v. Texas Employers’ Ins. Ass’n, Tex. Civ. App., 67 S.W.2d 389; Southern Surety Co. of New York v. Scheel, 125 Tex. 1, 78 S.W.2d 173, adopted by Sup.Ct.; Smith Bros., Inc. v. O’Bryan, 127 Tex. 439, 94 S.W.2d 145.

Though on the facts as brought forward Parker was an independent contractor, yet it appears on the face of the record that, probably, the facts on this issue were not fully developed; there was no testimony from the officers of Peavy-Moore Lumber Company. For that reason judgment is not here rendered against appellee, but we simply sustain the assignment that the finding of the jury is without support in the evidence, and also against the overwhelming weight and preponderance of the evidence.

The judgment of the lower court is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: . BLAIR, Justice.

text:
    KNOLLE v. KNOLLE.
    No. 8945.
    Court of Civil Appeals of Texas. Austin.
    May 22, 1940.
    Rehearing Denied June 5, 1940.
    Allwyn W. Pirtle, of LaGrange, for appellant.
    C. C. Jopling, of LaGrange, for appellee.
   . BLAIR, Justice.

This suit is one for the trial of the right of personal property, a diamond stud. It originated in the justice court, the petition alleging the value of the property to be. $110. As concerns this appeal the suit is, between appellant, Mrs. Atlanta Knolle, and annellee, Mrs. Leona Knolle, guardian of the estate of Jackie Lee Knolle, a minor, who in the justice court recovered judgment for title and possession of the diamond stud. Under the provisions of Art. 941 et seq., appellant filed a petition for a writ of certiorari to the county court, which was granted hut later dismissed on the motion of appellee; hence this appeal.

We sustain the action of the county court dismissing the certiorari “for want of sufficient cause appearing in the affidavit” or petition of appellant, as is required by Art. ■953. The sworn petition for the writ of certiorari alleged generally that an injustice not caused by her own inexcusable negligence had been done appellant by the judgment of the justice court upon two grounds: (1) because the value of the diamond stud was not proved, and therefore no jurisdiction -of the justice court was shown; and (2) because she intervened in the suit in the justice court and alleged the execution and probate of the will of O. J. Knolle, deceased, which bequeathed to her said diamond stud; and that she “introduced as evidence the duly executed and probated will of O. J. Knolle, deceased, which was testified to by L. D. Boelsche and Eddie V. Urbanofsky; and the said-L. D. Boelsche also testified that on the demapd of the attorney for Leona Knolle he stated he would deliver the stud to him, but later telephoned him that he would not deliver said stud, which was all of the material evidence offered by any side to the controversy.”

Appellant does not brief the jurisdictional question, and therefore waived it, no fundamental error being shown as to jurisdiction.

With respect to the claim that injustice was done to appellant on the trial of the case on the merits, the above quoted portion of petition and affidavit for the writ of certiorari did not allege sufficient material facts in evidence, or a reasonably full statement of the facts upon which the case for certiorari necessarily depends.

Appellant did not present the will relied upon, nor did she present a reasonably full statement of the facts. The rule applicable is 'stated in 26 Tex.Jur. 898, as follows: “ * * * where a trial was had in the justice court,' and the case for certiorari depends upon consideration of all the material facts in evidence, a reasonably full statement of the facts is called for. Where the ‘injustice’ is alleged to. consist in an erroneous decision of the case on the merits, the applicant should present a resume, at least, of all the evidence,' both oral and documentary, on which the justice acted. One test suggested, if the petitioner be the plaintiff, is that all possible grounds of defense should be negatived. — that the application should be denied if, consistently with all the facts alleged, it may reasonably be inferred that the opposite party had a substantial claim or a valid defense which would afford a basis for the judgment rendered.”

The rule is also settled that cer-tiorari to review a justice court judgment is not granted as a matter of right, the application being addressed to the discretionary power of the court. Schwind et al. v. Goodman et al., Tex.Com.App., 221 S.W. 579; McBurnett v. Lamkin, 45 Tex.Civ. App. 567, 101 S.W. 864; Huebsch Mfg..Co. v. Coleman, Tex.Civ.App., 113 S.W.2d 639. There is nothing in this record to indicate that the court abused its discretionary power in the instant case.

The judgment of the trial court is affirmed.

Affirmed.


author: COMBS, Justice. WALKER, Chief Justice

text:
    MARYLAND CASUALTY CO. v. CLARK.
    No. 3569.
    Court of Civil Appeals of Texas. Beaumont.
    March 28, 1940.
    Rehearing Denied May 29, 1940.

      Chilton O’Brien and Smith, Smith & Boyd, all of Beaumont, for appellant.
    Barnes & Barnes, of Beaumont, and Glenn Faver, of Jasper, for appellee.
   COMBS, Justice.

This is a workmen’s compensation insurance case. Appellee, Johnnie Clark, recovered judgment for total permanent disability in a lump sum of $2,999, he having limited his claim by his pleadings to .that amount.

While employed by the Texas Company at its Port Arthur refinery appellee took ill with pneumonia and spent seventy-two days in the hospital. Section of a rib was removed to permit' drainage of pus from the pleural cavity; adhesions and other damage to the lungs and chest resulted. This suit is predicated upon the theory that the -pneumonia developed from an injury to the lungs resulting from doing fast, heavy work in an over-heated, poorly ventilated room.

The evidence presents a rather close question as to whether or not the jury’s findings of total permanent disability have sufficient support. It can not be questioned, however, that plaintiff does have considerable permanent disability as a result of the pneumonia, and there is evidence that his disability is total permanent.

The more vital question is did the pneumonia result from an injury? Briefly summarized, the evidence relied upon to show accidental injury, was: On the day of the alleged injury, February 4, 1938, plaintiff worked in the grease room, where the various types of greases produced at the refinery were put into steel drums. The room was large, about 112 ft. long by 29 ft. in width, with a high ceiling. Nine large grease kettles were suspended above. The bottoms of the kettles came down through the ceiling to within about 8 ft. of the floor. The grease was heated ' by electricity to various temperatures, depending upon the kind of grease, to make it fluid enough to flow into the drums. The proof was that the temperature of the grease ranged from about 110 degrees to as high as 190 degrees Fahrenheit. There is some dispute as to the extent to which the room was ventilated, plaintiff’s evidence being to the effect that most of the openings, windows and doors from the grease room, opened out into a larger room, the grease room being an inside room. Defendant’s evidence tended to show that the room was well ventilated. Plaintiff’s job required him to handle the heavy drums of grease weighing about 450 pounds each, by tilting them over and rolling them on their rim a few feet to a conveyor which carried them from the room. It was heavy fast work. On the occasion in question, at between one and two o’clock P. M. plaintiff became nauseated and remarked to a fellow employee that he was about to faint. He was pale at the time. He walked out into the open at but only a few minutes to quitting time and remained in the open air until time to quit. He went to the shower room and took his bath and went home. He did not go to bed but developed a fever that night; he -remained up until the evening of the second day when he took to his bed and summoned a physician. He testified that at the time he became ill while working he had severe pains in his head, chest, lungs and stomach and that these pains never left him from that time on until he took to his bed. The physician who treated him testified that when he called to see plaintiff he was suffering with a typical case of influenza; that on the following day it developed into pneumonia and he ordered plaintiff to the hospital. Pneumonia resulted in pus forming in the pleural cavity which necessitated drainage. A rib recision was performed and plaintiff remained in the hospital seventy-two days. The physician testified that plaintiff at no time stated to him that he had become overheated or suffered any injury while on his job.

An expert medical witness, Dr. J. J. McGrath, testified for plaintiff that from examinations made in the course of treating the plaintiff after he left the hospital, that plaintiff is totally. and permanently incapacitated. He stated in response to hypothetical questions -that one working in a hot room, particularly if the atmosphere is dry, may suffer irritation of the- tissues of the lungs and air passages which condition will provide a ready field for the development of pneumonia germs and that pneumonia may result from such causes. He stated further that one person may be more subject to such injury than others, depending upon various factors such as his bodily resistance, condition of his health at that time, etc.

Plaintiff offered no proof of the actual temperature in the room' in which he worked, other than the temperature of the kettles of grease suspended from the ceiling as above mentioned. He and another employee did testify that it was “very hot” in the room, and the ventilation poor. The defendant offered testimony of temperature tests made within the room a year later and under conditions of outside temperature comparable to the temperature the preceding February when plaintiff claimed to have been injured. The temperatures taken at various times of the day ranged from 57 degrees up to 80 degrees Fahrenheit. Therefore, no thermometer reading so taken indicated any excessive heat in the room. It was also shown that a number of employees from time to time worked in the grease room— from five to fifteen or twenty depending upon the amount of grease being run. There was no showing that any other employee had ever suffered any injury or illness from the alleged excessive heat nor was any proof offered of any noxious gases or irritating substances of any kind in the air of the grease room.

Opinion

A number of assignments are presented complaining of various technical errors. However, the ' controlling question — one which goes to'the merits of the case — is whether or not the evidence supports the jury’s, findings that plaintiff’s incapacity resulted from an “injury” within the purview of the Workmen’s Compensation Law. Vernon’s Ann.Civ.Stat. Art. 8309. It is not questioned that plaintiff’s condition of incapacity resulted directly from pneumonia. The theory upon which he seeks recovery is: That the fast heavy work in the overheated grease room produced an irritated and inflamed condition of' the lungs and air passages which condition was a producing cause of the pneumonia.

The injury insured against by the Workmen’s Compensation Law is defined by the statute to mean “damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom”. Vernon’s Ann.Civ.Stat. Art. 8309. Plaintiff’s medical testimony satisfactorily established that an inflamed or congested condition of the lungs and air passages provides a ready field for the development of pneumonia germs, and that pneumonia may and frequently does -re.-sult from such condition. The medical testimony also established that conditions of extreme heat, particularly when accompanied by a dry condition of the air, may inflame the mucous membrane of the lungs and air passages of one subjected to such conditions. The precise question here is did the evidence satisfactorily establish that plaintiff sustained an inflamed and congested condition of his lungs and air passages from the conditions to which he was subjected in the course of his work?

It is of course true as contended by the plaintiff, that “damage or harm” to the internal organs of the body constituting ;he injury, may be established by proof of symptoms and circumstances which warrant the reasonable inference that the injury occurred. Thus, it has been held that proof of heat stroke or heat prostration received in the course of employment satisfactorily establishes compensable injury without other proof of damage or harm to the physical structure of the body. Hebert v. New Amsterdam Cas. Co., Tex. Com. App., 1 S.W.2d 608; Texas Employers’ Ins. Ass’n v. Moore, Tex.Civ.App., 279 S.W. 516; O’Pry v. Security Union Cas. Co., Tex.Com.App., 1 S.W.2d 590. In the heat stroke cases the inference of injury, i. e., “damage or harm to the physical structure of the body”, is an inference clearly supported by the known changes brought about in the organs of the body by heat stroke or heat prostration. Hence proof of heat stroke is proof of injury. But there is no contention here that plaintiff suffered heat stroke or heat prostration, but only that he received an injury to the lungs and air passages. The plaintiff was therefore under the burden of establishing the injury by other proof.

As we view the record the sole proof of such “injury or harm to the physical structure” of plaintiff’s lungs and air passages was the testimony that the grease room in which he worked was “very hot”; that he was doing very fast heavy work; that he became ill and nauseated while so working and suffered with severe pains in his chest continously from the time he ceased working to the onset of pneumonia. There was no proof that the heat of the room and the conditions under which plaintiff worked were. so severe that injury to the lungs and air passages can be inferred from such fact alone. Mere proof that an overheated room and dry air will irritate the lung passages was not proof that plaintiff suffered injury from such cause. There was no proof that the air in the room was dry or that, the temperature was sufficiently extreme to cause injury. No other employee working in the same room suffered injury, from such cause. Nor did mere proof of illness and pains in the chest establish the injury in the absence of proof of some noxious gas or irritating substances in the air of the room or of sufficiently extreme heat to account for the condition. When first examined by a physician the plaintiff was suffering from influenza and the symptoms which he' described may well have been the onset of that disease — the result of germ infection not resulting in any way from an injury.

The plaintiff relies strongly on the case of Maryland Cas. Co. v. Rogers, Tex.Civ.App., 86 S.W.2d 867, writ refused, as supporting his judgment in this case. In that case recovery was allowed for death resulting from pneumonia. But it was there shown that the pneumonia was contracted through inhalation of dirt and .foreign particles while the deceased, was grinding some unusually dirty grain. The “damage or harm to the physical structure” of the lungs was clearly established. The air in which the deceased worked was so filled with dirt that one could see a person only a few feet away. The deceased coughed and spat blood while on the job; the onset of the pneumonia followed, immediately and in natural sequence to its fatal termination. The medical testimony was to the effect that the pneumonia resulted from the inflamed and congested condition of the lungs produced by the inhalation of sand and dirt. Thus the proof clearly established the injury and the “disease or infection” — pneumonia —which developed as a natural result of it. As we view the record before us there was not such proof of injury as in the Rogers case. At most the proof here leaves it purely speculative and problematical as to whether the plaintiff received any injury whatever. On the evidence we think it is just as reasonable to presume that his influenza and pneumonia resulted purely from natural causes. At most the con-, ditions under which he worked may have produced a favorable condition for develop-, ment of flu and pneumonia. But that pf itself is not sufficient to warrant recovery. Jackson v. Texas Employers Ins. Ass’n, Tex.Civ.App, 253 S.W. 348. Proof of conditions which are merely conducive to the development of the disability producing disease is not proof of an injury compen-sable under the terms of the Workmen’s Compensation Law. The statute does not provide health insurance. The compensation which it allows is limited to death or. disability resulting from injury.

From what we have said it follows that the case must be reversed. We do not' render judgment but remand the case for' a new trial in order that the plaintiff may ■ have an opportunity for further developing the proof concerning his alleged injury.

Reversed and remanded.

WALKER, Chief Justice

(dissenting).

I dissent from the conclusion of my brethren that the evidence is insufficient to support the verdict of the jury. But as our judgment on that proposition is final and not subject to review by the Supreme Court, it would serve no useful purpose for me to summarize the evidence, which, in my judgment, supports the jury’s verdict.


author: BLAIR, Justice.

text:
    MARTIN v. CABLE.
    No. 9021.
    Court of Civil Appeals of Texas. Austin.
    May 8, 1940.
    Rehearing Denied May 29, 1940.
    Morrow & Calvert, of Hillsboro, and Wheeler & Wheeler and A. M. Felts, all of Austin, for appellant.
    Moursund, Ball, Moursund & Bergstrom, of San Antonio, for appellee.
   BLAIR, Justice.

This is an appeal from an .order sustaining the plea of privilege of appellee, Dr. C. H. Cable, to be sued in Bexar County, the county of his domicile. By her controverting affidavit to the plea of privilege, appellant, Mrs. Daisy Martin, alleged that her suit was for damages occasioned by the death of her husband, which resulted from a collision between an automobile in which he was riding and one driven by appellee, the collision oc-curing on South Congress Avenue in the City of Austin. Among other grounds of negligence, appellant alleged that appel-lee caused the collision by operating his automobile at a high, excessive and dangerous rate of speed; and in excess of 20 miles per hour, in violation of the penal laws of Texas; and that such operation under the facts and circumstances detailed established a cause of action based upon a crime and a trespass committed by appellee in Travis County; and that venue of her suit was therefore fixed in Travis County under the terms of Sub. 9 .of Art. 1995, which provides that “a suit based upon a crime, * *■ * or trespass may be brought in the county where such crime, * * * or trespass was committed.”

On the hearing of the venue question, appellant offered the testimony of Mrs. Edna Gage, who was driving the Ford coupe in .which the deceased husband of appellant was riding, which testimony detailed witness’s version of how the collision occurred. Appellant also offered the testimony of a policeman and a plat made by him a few ^minutes after the collision occurred, showing the position of the automobiles at the time of the collision and where they stopped after the collision. Appellee offered no testimony. Neither party to this suit resides in Travis County. At the ■ conclusion of the evidence and after argument of counsel, the trial court took the matter under advisement and later entered an order sustaining the plea of privilege; hence this appeal.

We have reached the conclusion that the trial court erred in disregarding the undisputed evidence in the case and in sustaining the plea of privilege.

Congress Avenue runs approximately north to south, and the paved portion of it is 90 feet wide, with a painted stripe down the middle. The collision occurred about 11:00 o’clock p. m. Mrs. Gage testified that she was driving a Ford coupe south on Congress Avenue, and that Mr. Martin was riding with her. That just prior to the collision she turned left before reaching the street intersection and across the line marking the middle of the Avenue, facing the car in a southeasterly direction, intending to go to Riley’s Cafe, ■ which was situated on the east side of Congress Avenue, and on the corner at the intersection of Congress Avenue with another street. At the time she made the left turn she saw three cars coming north on Congress Avenue, but thought that she had time to pass in front of them. That she was traveling slowly and had proceeded only about five or six feet when the car driven by appellee struck the right front fender of her car and the front end with such force that the right door was thrown open and Mr. Martin and she were thrown into the street with such force that he was rendered unconscious, and that he never regained consciousness, and died three days later. ■ She testified that she had driven automobiles for fifteen or twenty years and could estimate the rate of speed 'one was traveling; and as to the speed appellee’s car was traveling witness testified: “Well, the way I would estimate it, it must have been going at least 50 miles an hour because it came over a block while I went four or five feet. It was that far from me. I would estimate it at least that fast.”

C. G. Cook, a traffic officer for the city of Austin,' went to the scene of the collision a few minutes after it occurred and made a plat of the ground, a photostatic copy of which is in evidence. From this he testified that when the car of Mrs. Gage was struck on the right front fender and front end, it was headed in “a south and easterly direction” with its front end fourteen feet and one inch from the stripe in the middle of the street. That it was knocked north thirty-five feet by the collision and was standing across the stripe in the middle of the street, facing in a southwesterly direction, having been almost turned around by the impact. The distance from the point of the collision to the east side of the street was thirty feet and nine inches, over which appel-lee could have traveled going north as he was. After the collision appellee’s car traveled in a northeasterly direction for a distance of thirty-nine feet and six inches. Beginning at the point of the collision appellee’s car traveled ten feet before any marks or tracks- were made, and then the tires left “skid or track marks” for a distance of twenty-nine feet and six inches before it was stopped some few feet from the east line of Congress Avenue. The impact damaged both cars badly.

Appellee offered no testimony as to how the collision occurred. The testimony offered by appellant was not disputed and showed that appellee was negligently driving his car within the city limits of Austin at a high, excessive and dangerous rate of speed, and in excess of 20 miles per hour, in violation of the penal laws of Texas at the time the collision occurred. The cases hold that the driving of an automobile in a manner which violates a penal statute and so as to cause an injury is a “crime” within the meaning of Sub. 9 of Article 199'5, above quoted. Stone v. Kerr, Tex.Civ.App., 62 S.W.2d 357; Murray v. Oliver, Tex.Civ.App., 61 S.W.2d 534; Scott v. Carlos, Tex.Civ.App., 13 S.W.2d 957; McCulloch v. Withers, Tex.Civ.App., 131 S.W.2d 252.

The cases also hold that the negligent driving of an automobile. at a high, excessive and dangerous rate of speed and so as to cause injury is a “trespass” within the meaning of Sub. 9 of Art. 1995, fixing venue of a suit to recover damages for such injury in the county where the accident occurred. In addition to authorities last above cited, see also: Fidelity Union Cas. Co. v. Borden, Tex.Civ. App., 60 S.W.2d 465; Mercer v. Huff, Tex. Civ.App., 60 S.W.2d 327; American Fidelity & Cas. Co. v. Windham, Tex.Civ. App., 59 S.W.2d 259; Straus-Bodenheimer Co. v. Marshall, Tex.Civ.App., 91 S.W.2d 865; Roadway Transport Co. v. Gray, Tex.Civ.App., 135 S.W.2d 200; Columbian Fuel Corp. v. Summers, Tex.Civ.App., 134 S.W.2d 694.

In this connection appellee contends that the trial court did not have to believe the testimony of Mrs. Gage, an interested witness; and that without her testimony there was no proof of either (1) negligence, or (2) a crime, or (3) a trespass, or (4) causal connection between same and the collision or injury sustained by appellant’s deceased husband. These contentions are not sustained for two reasons. In the first place, Mrs. Gage’s testimony that appellee was driving his car at a high, excessive and dangerous rate of speed at the time of the collision was fully corroborated by the testimony of the policeman and his plat showing the position of the cars at the time of the collision and their position at the time they were stopped after the collision, and the damages thereto.

In the second place, the rule that the uncorroborated testimony of an interested witness does not conclusively establish a fact is not applicable here, because her testimony was corroborated; and because “the rule that the uncorroborated testimony of interested witnesses, although not controverted, does not conclusively establish a fact, is not applicable where the nature of the testimony is such that it might readily be discredited, if it were not true, and the adverse party offers no disparaging proof whatever.”

Appellee, who was himself driving his car at the time of the collision, did not testify'or offer any testimony to controvert the testimony of Mrs. Gage, which was corroborated by the testimony and plat of the policeman, and showed that at the time of the collision appellee was negligently driving his car at a high, excessive, and dangerous rate of,speed, and in violation of the penal laws; and which undisputed facts establish a “crime” and a “trespass” within the meaning of those terms as used in the venue statute above quoted.

The question of whether Mrs. Gage was guilty of contributory negligence in turning her car to the left before reaching the street intersection, and in crossing the center line of the street, and driving in front of appellee’s car, or in the path it was traveling, is not determinable on the interlocutory hearing of the plea of privilege. The issue raised by the plea of privilege and controverting affidavit was whether appellant’s suit for damages was based upon a “crime” or a “trespass” committed in Travis County, where the action was brought; and the cases hold that even if there is evidence showing contributory negligence, it is immaterial, because not material on the trial of the plea of privilege. Roadway Transport Co. v. Gray, Tex.Civ. App., 135 S.W.2d 200; Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675; Stockyards Nat’l. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

The order of the trial court sustaining the plea of privilege is set aside, and the plea of privilege is hereby overruled and denied.

Reversed and rendered.


author: ALEXANDER, Justice.

text:
    AMERICAN CENTRAL INS. CO. OF ST. LOUIS, MO., v. MARTIN.
    No. 2194.
    Court of Civil Appeals of Texas. Waco.
    May 23, 1940.
    Bryan & Bryan, of Houston, and Joe E. Webb, of Madisonville, for appellant.
    Brownlee & Brownlee, of Madisonville, and Bennett & Bennett, of Normangee, for appellee.
   ALEXANDER, Justice.

This is a suit on a fire insurance policy. The policy was a Texas Standard Fire policy and was attached to and made a part of the petition. It contained the usual exceptions and conditions under which the company would not be liable for a loss by fire, among these being a provision exempting the company in the event the loss was caused by an invasion, insurrection, riot, civil war, and the like. The plaintiff wholly failed to allege or prove that the loss did not come within any of these excepted causes. The defendant’s general demurrer to the petition was overruled, and at the conclusion of the evidence its motion for an instructed verdict was denied. These rulings are assigned as error.

It appears to be a well settled rule in this state that in a suit on a policy containing exceptions such as are here under consideration, the burden is on the plaintiff to both allege and prove that the loss did not come within any of the excepted causes as set out in the policy. International Travelers Association v. Marshall, 131 Tex. 258, 114 S.W.2d 851; Pelican Ins. Co. v. Troy Co-operative Ass’n, 77 Tex. 225, 13 S. W. 980; Century Insurance Co., Ltd. v. Hogan, Tex.Civ.App., 135 S.W.2d 224; Georgia Home Ins. Co. v. Trice, Tex.Civ. App., 70 S.W.2d 356; American Ins. Co. v. Maddox, Tex.Civ.App., 60 S.W.2d 1074. While the writer does not agree with the rule as above announced, we feel compelled to follow it. This necessarily requires that the judgment of the trial court be reversed and the cause remanded for a new trial. It is accordingly so ordered.


author: JACKSON, Chief Justice.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. ALLEN.
    No. 5145.
    Court of Civil Appeals of Texas. Amarillo.
    April 8, 1940.
    Rehearing Denied June 3, 1940.
    Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellant.
    James O. Cade, of Amarillo, for appellee.
   JACKSON, Chief Justice.

This suit was instituted by the appellee, John R. Allen, in the District Court of Potter County, Texas, against the appellant, Texas Employers’. Insurance Association, to set aside an adverse ruling by the Industrial Accident Board on his claim for compensation because of accidental injuries which he asserts he sustained on or about July 15, 1936 while in the employ of the Amarillo Coca-Cola Bottling Company, Inc., which carried insurance with appellant for the protection of its employees.

The appellee alleged that while in the course of his employment with the Coca-Cola Bottling Company and engaged, with the assistance of a helper, in loading an ice box used to cool beverages on a truck, his helper slipped, pushed the ice box against appellee and caught him between the box and a door jamb, knocked him down, jarred him, skinned his face and injured his head and neck; that after about a minute he got up and assisted in loading the ice box, continued his work for several days and was then sent to Drs. Vick & Cradit by the company. They gave him a couple of treatments, adjusted his neck and he returned to his work but suffered intermit-, tently with pains in his head and back but continued to work until about August 18, 1938 when on account of such injuries he became totally and permanently incapacitated.

He says he did not file his claim for compensation with the Industrial Accident Board within six months after thé accident in July, 1936 and for good cause alleges he did not realize that his injury was of sufficient intensity to cause incapacity to perform his usual work and not until August 18, 1938 did his injury, compel him to quit work and, immediately upon learning of the seriousness of his injury and his incapacity to labor further, he filed his claim with the Industrial Accident Board and within six months after such discovery.

The appellant answered by general demurrer, general denial and specially pleaded under oath that appellee failed to file his claim for compensation with the Industrial Accident Board within the six month period prescribed by statute from and after the date of the alleged accident; that he failed to file any claim for compensation with the Industrial Accident Board within six months after the purported culmination of his alleged injury; that no good cause existed for the failure of appellee to file his claim within the statutory period of six months and no good cause for such failure continued to exist to the date that appellee filed his claim for compensation.

In response to special issues submitted the jury found, in effect, that the appellee sustained an injury to the lower part of his back in July, 1936 while in the employment of the Amarillo Coca-Cola Bottling Co.,. Inc.; that the plaintiff did not become totally incapacitated but became partially incapacitated on account of such injury; that his incapacity began August 19, 1938; that such partial incapacity is not permanent but will continue 200 weeks and the partial incapacity was to the extent of 50%; that his average wage should be fixed at $25 per week; that appellee is suffering from no diseases not traceable to the injury and such incapacity is not due solely to diseases; that appellee learned that the injuries would result in his incapacity on October 27, 1938 and that he believed until said date that such injury would not incapacitate him from work and that such belief prevented him from filing his claim for injury until December 10, 1938 and a reasonably prudent man situated as was appellee would on account of such belief have delayed the filing of his claim until said date.

On these findings judgment was rendered that appellee recover 50% of his compensation rate of $15 per week for 200 weeks beginning on August 19, 1938, or the sum of $7.50 per week beginning on said .date. This judgment is before us for review.

The appellant challenges as error the action of the court in refusing to direct a verdict in its behalf because, (a) the testimony is insufficient to authorize the finding of the jury that good cause existed and continued to exist to December 10, 1938 for the failure to file the claim; (b) the testimony is insufficient to show that ap-pellee suffered an injury to the lower part of his back in the accident in July, 1936.

The appellee testified in substance that while loading a crated ice cooler in July, 1936 on a truck for the Amarillo Coca-Cola Bottling Co., Inc., his helper slipped, pushed the cooler against him, and caught him between it and the door jamb, knocked him down, skinned his face and jarred him up but after a minute or two he got up and assisted in loading the cooler on the truck but had no pain in his back immediately but did have pain in the back of his neck and head; that he made no report to his employer- of any injury to his back and continued his work for a few days when ■he reported to the company about the hack of his neck and head and was sent to Drs. Vick & Cradit who treated him a couple of times, adjusted his neck; he returned to work and continued until August 15, 1938; that he received no injury prior to or after July 1, 1936 to which he could attribute the pain and suffering- in and injury to his back; that he had the flu in May, 1938 and the company advised him to consult' Dr. Vineyard who, after an examination, informed him that he did not have tonsilitis and no tonsillectomy was necessary; that he later consulted Dr. Vick who treated him for a few days; he returned to work on May 16th and continued until he quit in August, 1938, at which time the injury to his back was such that he could not bend, stoop, raise up, lift anything or do manual labor; that while Dr. Vick was treating him he told the doctor of the accident in July, 1936 and was advised on May 6th that his back was injured; he grew worse the longer he worked and about the middle of August the company sent him to Dr. Swin-dell who told him he was suffering from tonsilitis, needed an operation and to go to the Security Benefit Association Hospital at Topeka, Kansas; that he quit his work, went to the hospital in Kansas, arriving August 23d, and had his tonsils removed; that while he did this on the advice of Dr. Swindell he did not believe his tonsils were causing his trouble but thought it was due to the injury he received in July, 1936. He stated in his testimony that while at the hospital he reported to Dr. Schoch, a member of the staff of the hospital physicians, and informed the doctor he was suffering With his back which began with an injury he received in 1936 while loading a large Coca-cola box into a truck; that such p'ains had not given him much trouble until January, 1937 but had gradually grown worse until August, 1938 when he was totally incapacitated to do manual labor. He testified he knew at the time he entered the hospital and during the time he was there and when he returned to Amarillo that he was physically unable to work on account of his back. He testified that in his claim to the Industrial Accident Board he advised the members that Dr. Vick had on May 6, 1938 discovered that his back was injured; that the reason he failed to file his claim with the Industrial Accident Board until December 10, 1938 was because he didn’t realize' until he returned from the hospital that his injury was such that he would never be able to do his work and that his disability was due to the accident.

The helper assisting appellee at the time of the accident in 1936 gives substantially the same testimony as to how the accident occurred as did appellee, who, the witness said, complained of his back soon after the accident and also after a hard day’s work. The wife of appellee said the first .she learned of an injury to appellee’s back was when Dr. Vick so advised him in 1938.

Dr. Vick testified that he was a graduate of the Kirksville School of Osteopathy; had done some postgraduate work; that he treated appellee in July, 1936 two or three times soon after the accident and also treated him in May, 1938, at which time the appellee complained of his back and told him of the injury he received in 1936, from which he concluded appellee had an injured back due to some traumatic accident; that his examination revealed that the lower segment of - the spine, or the wedge shaped, bones which fit into the pelvis, had slipped' forward on the right side upon its articular surface allowing the ilium to slip slightly forward, the right side to drop downward and forward at the base of the spine, and such results are usually due to external violence. He says he told Mr. Allen that these bones had slipped, and produced a dislocation, and he concluded the suffering might be due .to such accident and so advised his patient; that after the appellee returned from the hospital at Topeka he re-examined him about the middle of October, which confirmed his opinion that his diagnosis in May that appellee’s incapacity was due to the back injury sustained in 1936 ryas correct; that the flu and infection from tonsilitis would not produce the slippipg of the banes or the dislocation thereof with which he found appellee suffering but would aggravate the pain, misery and incapacity caused thereby.

The appellee was advised by his physician in May, 1938 of the dislocation of the bones in the lower' part of his back; . he thought when he went to the hospital the pain in his back was due to the accident he had in 1936 ;• he knew his back injury incapacitated him for work, knew this the twenty-eight days he stayed in the hospital, knew' it when he returned to Amarillo about September 21 or 22, 1938, knew that removing his tonsils had not relieved him but says he did not realize until he returned to Amarillo that his disability was due to the accident in 1936 and that he would never be able to do work anymore. The appellee was a man of at least- average intelligence as evidenced ■ by his testimony, the work he did and the wages he was paid. If his testimony is true he understood, at least, on August 23d and on September 21st or 22d that he was incapacitated because of his injury and that .the injury was received in the accident in 'July, 1936. He was able to drive a car, attend to business requiring no manual labor but did nothing toward filing his claim with the Industrial Accident Board until December 10, 1938. On October 27th he wrote the Board and asked if an injury to him had been reported by the Amarillo Coca-Cola Bottling Company since July, 1936. The Board advised him by letter dated November 1st thereafter that no report of any accident to him had been made. On November Sth he .forwarded the Board a letter in which he informs them he is stating facts and dates of the injuries until his lay-off August 18, 1938 and sought advice as to how he should proceed. The information contained in his letter is not disclosed but the Board furnished him blanks on which to make out his claim and this was done and the claim filed December 10, 1938.

Article 8307, Section 4a, of the Revised Civil Statutes provides in effect that a suit for compensation under the law shall not be maintained unless notice is given to the subscriber within thirty days and a claim for compensation for the injury shall have been made within six months after the occurrence thereof but specifically provides that “For good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations ' as to notice, and the filing the claim before the board.” It is conceded by appellee that he failed to file his claim with the Industrial Accident Board within six months after the accident and as good cause for such failure alleges he did not realize that his injury was of sufficient intensity and effect to cause him to suffer incapacity. He testified that he delayed filing his claim until December 10, 1938 because he did not realize that his injuries would incapacitate him to do his work until he returned from the hospital, which was about September 22, 1938.

In General Accident Fire & Life Assur. Corporation, Limited v. Martin, Tex.Civ. App., 110 S.W.2d 258, 260, after stating that but two reasons were alleged to show good cause for not filing the claim within six months, one of which was that the claimant believed a compromise would be effected and the other that he didn’t become fully aware of his physical condition until December 7, 1936 when examined by a physician, the court says: “It occurs to us that, as a matter of law, neither of the above reasons is sufficient in law to show good cause why the claim was not properly filed. It would seem that in every case the injured employee could allege that he had hopes of a compromise, or that he was not fully aware of his physical condition.” (Citing many authorities.) To the same effect is the holding in Odom v. Indemnity Ins. Co. of North America, Tex.Civ. App., 111 S.W.2d 1143.

In Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053, 1054, Commissioner Hickman says:

“1. The period of six months provided in the statute for the filing of a claim with the Industrial Accident Board begins to run on the date of the injury and not on any subsequent date. Indemnity Ins. Co. of North America v. Williams, 129 Tex. 51, 99 S.W.2d 905; Texas Employers Insurance Association v. Guidry, 128 Tex. 433, 99 S.W.2d 90Ó; Williams v. Safety Casualty Co., Tex.Civ.App., 97 S.W.2d 729. The latter case was reversed on other grounds in 129 Tex. 184, 102 S.W.2d 178, but the holding by the Court of Civil Appeals on this question was expressly approved.

“2. When a claim is not filed within the statutory period of six months the good cause must continue to the date when same is actually filed. Williamson v. Texas Ind. Ins. Co., 127 Tex. 71, 90 S.W.2d 1088; Holloway v. Texas Ind. Ins. Co., Tex.Com. App., 40 S.W.2d 75."

An analysis of the testimony convinces us that a great preponderance of the evidence is against the finding by the jury that good cause existed and continued up until the date that appellee’s claim was filed with the Industrial Accident Board.

In Bankers Life & Loan Ass’n v. Chase, Tex.Civ.App., 114 S.W.2d 374, 378, this court held:

“It is the duty of this court to set aside a judgment of the trial court when the evidence so greatly preponderates against such judgment that a new trial should be granted in the interest of justice.

“In Logue v. Southern Kansas Ry. Co., 106 Tex. 445, 448, 167 S.W. 805, 806, the Supreme Court states the law as follows: ‘The rule is that the Court of Civil Appeals may reverse a judgment on the weight of the testimony, but that court cannot render judgment if the evidence, when considered in the light most favorable to the party in whose favor the judgment is rendered, would sustain the judgment of the trial court.’ ”

Under this holding and the case of Williamson v. Texas Indemnity Ins. Co., 127 Tex. 71, 90 S.W.2d 1088, the finding of the jury on the continuance of good cause and some unsatisfactory statements of the appellee in conflict with most of his other testimony, we do not feel warranted in rendering the judgment.

The contention of appellant that the testimony is insufficient to sustain the finding of the jury that appellee was injured in the accident of 1936 and his incapacity was a result thereof is overruled.

The judgment is reversed and the cause remanded.