text:
    NORTON et al. v. BRIDGE et al.
    No. 5659.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 23, 1940.
    Rehearing Denied Nov. 14, 1940.

      J. A. Ward and T. Claude Hutchings, both of Mt. Pleasant, for appellants.
    Seb F. Caldwell, Hiram G. Brown, and Traylor Russell, all of Mt. Pleasant, and Robert Salmon, of Linden, for appellees.
   HALL, Justice.

Appellee, Howard Bridge, instituted this suit in the District Court of Titus County against E. S. Norton, contractor, Cookville Independent School District and its trustees, Mrs. W. G. Crawford and W. G. Norton, sureties on Norton’s bond, for the sum of $553.54 for “labor, material and merchandise” furnished by Bridge to E. S. Norton and used in construction 'of a school building for the Cookville Independent School District. The Redwater Lumber Company intervened, setting up a claim against the same parties for the sum of $441.28 for labor and building material furnished by it to E. S. Norton, and used in the construction of said school building; and also a claim for $176.60 (now owned by intervenor) due Alto Mill & Lumber Company for labor and material furnished E. S. Norton and used in -construction of said school building.

E. S. Norton, contractor, and Mrs. W. G. Crawford and G. W. Norton, sureties ■on his bond, answered (so far as pertinent to this appeal) that the architect for the school district and Norton, contractor, made material alterations in the specifications and improvements to be made without the knowledge or consent of W. G. Norton and Mrs." W. H. Crawford, which increased the cost of the school building $1,205.20 and made their obligations more onerous than that assumed by them in the beginning. Answering further, Mrs. Crawford and G. W. Norton, sureties, alleged that the school district and its officers failed to retain 20% of the contract price of' said school building for the purpose of satisfying “all claims and demands incurred for' the same” as provided in the building contract; that they “wrongfully and in violation of said contract and to the prejudice and injury and wrong of these defendants, Mrs. W. H. Crawford and W. G. Norton, paid out practically all the contract price to E. S. Norton or to others or on his order and failed and refused to reserve and hold back the said 20% of the contract price, which is the sum of $970, and thereby permitted the said E-. S. Norton to have access to the 20% that -should have been reserved to protect these defendants against any damage or loss by misapplication or misuse of the said funds and contract price for said building.”

The school district answered that certain deductions and additions were made to the original contract and specifications which taken together amounted to $225; that E. S. Norton abandoned the contract and refused to finish the building and the school district was compelled to employ other parties to complete same; that there was in its hands after the building had been completed the sum of $81.24 which it requested the court to decree to Bridge and the Redwater Lumber Company. The school district denied any further liability.

The jury verdict and judgment were in favor of Bridge, the Redwater Lumber Company, and the school district, and against E. S. Norton, contractor, and Mrs. W. H. Crawford and W. G. Norton, sureties.

From appellants’ brief we take the following: “The rights of plaintiff Howard Bridge and Intervenor Redwater Lumber Company to recover against E. S. Norton and the sureties on his bond, Mrs. W. H. Crawford and W. G. Norton, is not questioned in this brief; but it is contended that Mrs. W. H. Crawford and W. G. Norton, appellants, as such sureties, should have recovered against Cookville Independent School District the amount of the 20% retainage which said district failed to hold and retain in its possession, as required by said contract, until proofs had been furnished by E. S. Norton that material and labor bills had been paid.”

The contract price for the school building was $4,850. This was also the amount of the contractor’s bond.

Appellants’ first proposition is:

“The memoranda and remarks made by Edwin R. Smith on the bottom of certificate issued by him as architect for the Cookville Independent School Board was dated Paris, Texas, Sept. 18, 1936, was hearsay statement and remarks of Edwin 'R. Smith, and, he being at the time the supervising architect of the Cookville Independent School District, are in¡ favor of and self serving for the Cookville Independent School District and inadmissible. The memoranda and remarks are as follows :

“ ‘Contract price $4,850.00
Extra work 270.00
Total amount issued 2,808.45
Balance $1,311.55, 4,270.00
“ ‘Remarks: Credits $90 and extra work 360.00, balance to add to contract price 270.00, making contract price.’ ”

Appellants’ propositions 2 and 3 relate to the same matters as proposition 1, and they will be discussed together. These propositions present error. There can be no question but that the statement “Credits $90 and extra work 360.00, balance to add to contract price 270.00, making contract price” at the end of the certificate issued by Smith, architect for the school district, is ex parte and hearsay insofar as these appellants are' concerned, and establishes no fact against them. Stringfellow v. Montgomery, 57 Tex. 349; 17 T. J. Sec. 211, p. 520. It is true that appellants, as bondsmen of Norton, waived “any change from the original drawings and specifications of a minor nature * * * ”. Norton, the contractor, testified that the extras added to the building as originally planned amounted to the sum of $1,205.20, almost one-fourth of the contract price. This, in our opinion, would amount to more than a minor change in the original plans and specifications as contemplated by the terms of the bond. There is no testimony in this record relating to the cost of these changes except that of Norton and the ex parte statement of Smith, the architect. The bondsmen knew nothing of the added extras. The trial court submitted issues presenting this phase of the cause, and in answer thereto the jury found exactly in line with the ex parte notation of the architect, showing conclusively that this hearsay testimony formed the basis for their answers. These answers, therefore, must be held for naught. Southern Surety Co. v. Nalle & Co., Tex.Com.App., 242 S.W. 197, and the numerous authorities there cited. (Italics ours.)

Propositions 5 and 6 relate to the failure of appellee school district to retain 20% of the agreed construction price of said building as provided in the contract. There is no controversy over the fact that the 20% was not retained. However, it is contended by appellees, and the record sustains them, that the money paid to Norton (which was less than the original contract price) was all applied to the payment of labor performed and material used in the construction of the school building under the original contract. Since the sureties were obligated by the terms of the bond to “pay all persons who have contracted directly with the principal for labor and material,” no harm could result to them from the failure of the school district to retain the 20% of the contract price. These propositions are overruled.

For the error pointed out, the judgment is reversed and the cause is remanded.


source: Caselaw Access Project

author: BOND, Chief Justice.

license: Public Domain

text:
    DALLAS RY. & TERMINAL CO. v. GLENN.
    No. 12878.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 12, 1940.
    Rehearing Denied Nov. 23, 1940.

      Burford, Ryburn, Hincks & Charlton, of Dallas, for appellant.
    Carden, Starling, Carden & Hemphill and L. R. Garrish, all of Dallas, for appellee.
   BOND, Chief Justice.

This suit was instituted in a district court of Dallas County by appellee, Mrs. Evelyn Glenn, against Dallas Railway & Terminal Company, to recover damages for personal injuries, and to an automobile driven by her, as the result of a collision with appellant’s street car.

The trial was to a jury, and resulted in favor of plaintiff on all issues of ordinary negligence, on defendant’s failure to exercise ordinary care in the particulars alleged in plaintiff’s petition; but, which findings were effectually rendered nugatory by subsequent findings that plaintiff was guilty of contributory negligence. The jury also found in favor of plaintiff on proper issues of “discovered peril” and assessed damages at $5,210. Thus, all acts of ordinary negligence committed by defendant’s street car operator are rendered immaterial on this appeal, and no issue relative thereto is here presented. The appeal is relegated entirely to the issues of “discovered peril”.

It is elementary that a jury is the judge of the weight of all the evidence in all cases presenting ultimate issues of fact, but it cannot lawfully deny proper weight to undisputed facts, with no suspicion cast upon them; or arbitrarily reject evidence; or, in the absence' of evidence, sustain issues which are improperly submitted. In sustaining the issues on “discovered peril”, the case must present evidence that, when considered in the light most favorable to the findings of the jury, raises the issue and supports the findings. The uncontradicted evidence, or the lack of evidence, in this respect demands peremptory instruction, or, •on motion, judgment non obstante vere-dicto. Therefore, the ultimate question for decision in the instant case is: Does the evidence show that the street car motorman, •on the occasion in question, failed to use all the means at his command, consistent with his own safety and the safety of the street •car, to prevent collision with plaintiff’s automobile after it was discovered on or near the street car track, and plaintiff’s perilous position realized? If such is shown, the verdict of the jury on such issues should not be disturbed on appeal; on the other hand, if the evidence is insufficient to support the findings of the jury, then defendant’s motion for peremptory instruction, and for judgment notwithstanding the verdict, should have been sustained. Therefore, error is here presented, enjoining this Court to search the record for evidence to sustain the findings of the jury, and to render such judgment as was, or should have been, rendered in the court below.

Plaintiff’s right to' recover, under the doctrine of “discovered peril”, notwithstanding the fact that she was guilty of contributory negligence, as found by the jury, has for its basis the fact that, at the moment defendant’s street car motorman discovered plaintiff’s automobile at or upon the street car track and then realized her perilous position, there immediately rested upon him the duty to use all the means at his command to stop the street car before it struck plaintiff. The inquiry is not, when the motorman, in the exercise of ordinary care, should have discovered plaintiff’s automobile at or on the track, but, when did he actually discover her there, and realize her perilous position; and, did he use all the means at his command, consistent with his own safety and the safety of the street car to avoid the collision?

It appears from the undisputed evidence in this case that defendant’s motorman did not see plaintiff in a position of peril until the collision between the street car and the automobile was inevitable; and, further, that the motorman instantly made use of all the means at hand, as alleged by plaintiff, to stop the street car.

The collision occurred at the intersection of Throckmorton and Prescott Streets in the City of Dallas — Throckmorton extending north and south and Prescott, east and west. , Plaintiff, operating an automobile, approached the intersection from the east, traveling at a rate of about 30 to 35 miles per hour; and the street car approached from the North, on Throckmorton Street, at about 7 to 8 miles per hour. When the street car was about 60 feet from the intersection, the motorman, Mr, Ramsey, saw plaintiff’s automobile about 150 feet away to the east; and, about the same time, saw another automobile approaching the intersection from the west. The motorman then directed his attention to the automobile from the west, it being closer to the street car track than plaintiff’s automobile. He applied his brakes, retarding the speed of the street car until the automobile from the west turned south on Throckmorton Street, and stopped. The motorman then released the brake, applied the electric current and speeded the car up to about 10 or 12 miles per hour. During this time, the motorman never looked to the east, in the direction plaintiff was first seen approaching the intersection; and there is nothing in the record to indicate that there was a necessity for the motorman to further direct his attention to plaintiff’s automobile. She was not then in a position of danger. Mr. Ramsey said: “At that time there was nothing about the speed of the auto which attracted my attention — nothing at first sight. I did not notice it particularly. I was much closer to the intersection than the automobile. I had slowed down before I saw it. After that, I did not change my speed until I got to the pavement, or the north curb line. At that time (when he first saw it), the auto was quite a little distance away. I did not think there was any danger at all. I then pulled my controller around and increased my speed * * *. When I was feeding it up and watching this auto on my right (the automobile from the west) I did not know that the auto on the left (plaintiff’s automobile) was going to keep on coming and not slow down and stop. I thought it would stop if I got there before it go.t across.” The uncontroverted evidence further shows that when the automobile from the west had stopped, or turned’ onto Throckmorton Street, and the motorman released the brake, turned on the electric controller and speeded up the street car, he had gotten near the middle of the intersection of the streets when his attention was directed to the automobile involved in this collision. The motorman said it was about 60 feet from the track, and the automobile was then swerving slightly to the left, in an angular direction; and, on this point, plaintiff said she was on the track and that, at that time, the motorman was looking to the west, in the opposite direction from her; that she saw him turn on the controller and the car speeded up and collided with the rear end of her automobile, pushing it over against an automobile parked at the west side of the track. She said: “I told Mr. Owens that the motorman ‘was looking off to his right and that he continued to look off until the collision occurred’. That is true. He never did see me so far as I could tell.” It is evident from the record that the distances, speed of travel, and the exact location of the automobile and §treet car, -immediately before and at the time of the collision, are merely approximations and must be so considered in passing upon the testimony of the case.

Mr. Ramsey further testified that, when he saw the automobile coming from the east, immediately before the collision, he knew a collision was unavoidable; he said: “I was doing my best to keep from hitting it; I was trying to keep away from the car (automobile) as much as I could. I did not notice the people particularly in the car. In fact, there was not time to take in all the details like that. * * * I have an electric control or key right at me. I turned it off with my left hand, and then with my right hand, I turn the key that puts on or off the air brake. I have no sand under my foot. We had sand, but you handle that with the brake. If you mash down on -the brake, it applies sand. I don’t remember whether I did. It would not have done any good if I had. The only thing we have to control the car with are those two keys a'nd an electric current breaker that you can cut off. After I released my brake back there (when the street car entered the intersection) I applied my brake as soon as I next saw the car. That was about the middle of the street. * * * I immediately shut off the power and applied my brakes as quick as I could.” Mr. Ramsey further said: “The sand flattens the wheels, makes them hump — square, in other words. It damages them immediately if the brake is on. It is a bad practice. The reason it damages the wheels is that it flattens them. I don’t know just what course it takes to doing so, but that is the way we are instructed out there. This was a flat surface where we were crossing. I had a reverse lever there — I did not use' that. On that type car, it takes something like 30 to 40 seconds to get your reverse-into effect. It would have been mighty bad practice to have used it.” Sand is applied only when the track is wet.

The foregoing is a fair summary of all the evidence offered on the issues of “discovered peril”. We have searched the record in vain for evidence to sustain the findings of the jury that defendant’s street car motorman saw the plaintiff in a perilous position in time to avoid the collision; and, immediately upon discovery, failed to use all the means at hand to make an emergency stop of the street car. The evidence indisputably shows that the motorman was looking away to the west at the time plaintiff was in a perilous position, and, on discovery, immediately applied the brakes and cut off the electric current — the only recognized means of making an emergency stop of a street car. There is no evidence to the contrary. The application of sand to the wheels and the use of the reverse lever is shown to have been unavailable, to have stopped the street car without injury or damage to the same, and none of such means is specifically alleged by plaintiff to have been available.

Tex.Jur. Vol. 30, p. 681, Sec. 32, discloses the elements or factors that enter into the issue of discovered peril, viz.: “(1) The exposed condition brought about by the negligence of the plaintiff; (2) the actual discovery by defendant’s agents of his perilous situation in time to have averted — by the use of all the means at their command, commensurate with their own safety — injury to him; and (3) the failure thereafter to use such means.” All these elements, bearing on,the controlling issue of discovered peril, are not only lacking of proof, but are conclusively shown not to have existed, other than contributory negligence of the plaintiff in failing to keep a proper lookout for the street car, and the control of the speed of her automobile.

We think the appeal presents reversible error in the trial court’s overruling defendant’s motion for judgment non ob-stante veredicto; and, on careful review of the entire record, this Court is enjoined to enter such judgment as should have been rendered in the court below. The judgment should have been in favor of the defendant, for lack of evidence to sustain recovery-on the doctrine of “discovered peril”.

There are other assignments of error pertinently raised on this appeal, bearing on reversal and remand of the cause, but in view of the disposition of the case, as indicated above, such are rendered immaterial; we express no conclusion on the other assignments.

The judgment of the court below is reversed and here rendered for appellant.

Reversed and rendered.

On motion for rehearing.

On motion for rehearing, appellee relies for error on alleged conflict with the case of Panhandle & S. F. Ry. Co. v. Napier, Tex.Civ.App., 90 S.W.2d 926, and other authorities of similar import.

In the Napier case, the El Paso Court of Civil Appeals reversed and remanded the' cause, and, at a subsequent trial, on evidence analogous to that in the instant case, the injured plaintiff again recovered judgment under the doctrine of discovered peril. On a second appeal (Tex.Civ.App., 117 S.W.2d 826), the judgment was affirmed, a writ of error granted, and since our original opinion in this case (October 12, 1940), the Supreme Court has reversed the judgment of the El Paso Court of Appeals and remanded the cause to the trial court, to enable the jury to make satisfactory answers to questions involving contributory negligence and for the trial court to correct suggested errors in submission ' of discovered peril (143 S.W.2d 754, 755).

In the reported case, our Supreme Court holds, that the elements of discovered peril were not present, and, because of the facts being so analogous to those in the instant case, we are impelled to quote the findings of fact and the law pronounced by the Supreme Court underlying the doctrine of discovered peril applicable thereto and, we think, equally controlling in this case. We are unable to appraise appellee’s alleged conflicting opinions.

The Supreme Court said:

“In our opinion, the evidence wholly fails to show that at the time defendant’s servants discovered the approach of plaintiff’s car they had any idea he was then in a position of danger; and further shows, without controversy, that no member of the crew knew that he was in a position' of peril or danger at any time prior to the time his car struck the engine. Plaintiff’s whole theory of discovered peril rests upon the assumption that as certain members of the crew saw the headlights of his car when it was approaching the railroad crossing, and while at a distance of more than one hundred feet from the crossing, they should have assumed that under the conditions he would probably drive his car in front of the engine or into the engine, and it was their duty to have prevented his doing so. The answer to this, it seems to us, is that this contention-merely suggests a failure to use. ordinary care, and does not in any sense make applicable the doctrine of discovered peril. It has long been settled that the doctrine of discovered peril does not arise unless and; until the perilous position of the injured party becomes actually known to the defendant. The mere duty to discover his position of danger under the circumstances will not raise the issue. The burden is on the plaintiff to establish that the defendant actually realized the perilous position of plaintiff in time to have avoided danger to him with exercise of ordinary care in the use of all means at hand. In the absence of actual discovery and the appreciation of the peril, the rule of discovered peril has no application.

“It has often been held that discovery of a car approaching a railroad crossing at a time when its occupant is not in danger, is within itself not sufficient to raise the issue. It is further held that the person causing the injury is not bound to anticipate negligent conduct on the part of the injured person, but has a right to rely upon the assumption that the driver of the car is in possession of his faculties and will be able to control his vehicle so as not to come into a position of peril. Ft. Worth & D. C. Railway Company v. Shetter, 94 Tex. 196, 59 S.W. 533; Galveston, H. & S. A. Railway Company v. Price, Tex.Com.App., 240 S.W. 524; Texas & P. Railway Company v. Breadow, 90 Tex. 26, 27, 36 S.W. 410; Texas & N. O. Railway Company v. Adams, Tex.Civ.App., 27 S.W.2d 331; Young v. Dallas Ry. & Terminal Co., Tex.Civ.App., 136 S.W.2d 915; Texas & P. Ry. Co. v. Foster, Tex. Civ.App., 58 S.W.2d 557.
“The whole basis of 'plaintiff’s contention in this instance is that the employees of the railway .company, when within about fifty feet of the railroad crossing, saw the lights of plaintiff’s car as he rounded the curve some distance from the crossing. This must have been at a time when he was more than one hundred feet from the crossing, because it seems to be undisputed that for a distance of one hundred feet from the crossing the highway was perfectly straight. The fireman testified that he first discovered the car when the lights shined directly in his face. As the fireman was a distance of some fifty feet from the crossing when this occurred, it necessarily' is true that the plaintiff’s car was still turning the curve and had not reached the straight portion of the highway. In all events, it appears from the evidence that when the members of the crew first discovered the approaching car it was a considerable distance from the crossing. Certainly at this time plaintiff was in no danger. There is not a scintilla of proof indicating that he would continue until he came in contact with the train, or any circumstance to indicate that he would go into a perilous position. Besides, plaintiff testifies he was driving his car at the rate of about twenty miles per hour, that it was in good condition, and that he could have stopped it within twenty feet. The engine was backing at a rate of seven to fourteen miles per hour. It is undisputed that plaintiff’s car struck the engine at a point fifty feet back of the end of the tender. As plaintiff could not have come into a perilous position until he reached approximately twenty feet of the engine, when it became too late for him to apply his brakes and prevent a collision, it is evident that the tender and engine necessarily entered the railroad crossing at a time when plaintiff was something like one hundred feet or more away. As plaintiff’s car struck the engine fifty feet frpm the end of the tender, and as plaintiff necessarily did not come into a position of peril until the tender had at least reached the center of the highway, there is absolutely nothing which the members of the crew could have done after plaintiff became in peril which would have prevented the accident. The whole contention and argument of plaintiff rests upon the assumption that defendant should and could have protected plaintiff from the dangerous situation before entering upon the highway.’ Aside from the fact, as was said in the case of Texas & Pacific Railway Company v. Foster, Tex.Civ.App., 58 S.W.2d 557, 560, that this ‘would, in ef-feet, require operators of trains to slow up or stop every time they saw an automobile approaching a railroad track in the manner of this one, and that quite without regard to its speed when discovered, or its proximity to the crossing,’ the fact remains that at all times before defendant’s engine ’ entered upon the crossing plaintiff was not in peril, and the employees had a right to assume that he would not in the exercise of due care come into a position of peril. As above suggested, plaintiff’s contentions at the most pertain merely to acts which would suggest a failure to exercise ordinary care, and have no relation whatever to the doctrine of discovered peril.”

It will be observed, from the disclosure in our original opinion, that the facts in the Napier case are analogous to the facts in the instant case, and the doctrine of discovered peril there applied by the Supreme Court, and in the cases cited, justify the conclusion reached by this Court.

Appellant’s motion for rehearing is overruled.


author: PRICE, Chief Justice.

text:
    GALVAN v. CITY OF BROWNSVILLE.
    No. 3990.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 17, 1940.
    Rehearing Denied Nov. 20, 1940.

      H. B. Galbraith, of Brownsville, for appellant.
    R. A. Dunkelberg, City Attorney, of Brownsville, for appellee.
   PRICE, Chief Justice.

This is an appeal from the District Court of Cameron County from a judgment sustaining a plea of abatement urged by the appellee, City of Brownsville, against the action of Ramon Galvan, appellant.

On January 21, 1939, appellant filed in the court his original petition. He sought to recover damages from appellee on account of personal injuries alleged to have been proximately caused by the negligent acts of appellee, alleging that he was an employee of appellee in the street cleaning department as a helper on its automotive vehicles; that one Martinez, acting in the course of his employment as an employee of the City, negligently ran into him with a truck or automobile while appellant was in the course of his employment, working upon repairs to one of the motor vehicles of the City; that the truck was defective within the knowledge of defendant, and defendant was guilty of maintaining said truck in said defective condition, and such negligence was the proximate cause of the personal injuries to him. Substantial and permanent injuries are alleged.

Defendant, on April 18, 1939, answered said petition, and in due order of pleading pleaded in abatement as follows:

“1. Plaintiff is organized as a home rule city in accordance with the Constitution and laws of the State of Texas, and, as such home rule city, in its charter as amended August 12, 1931, it has provided in Article II, Section 8 of said charter, as follows:
“ 'Section 8: Exemption from liability for damages: Said city shall have the power to provide for the exemption of said city from liability on account of any claim for damages to any person or property, or to fix such rules and regulations governing the city’s liability, as may be deemed advisable.’
“2. Pursuant to such power, on the 20th day of July, 1938, the City Commission of the City of Brownsville, Texas, duly and legally passed and adopted Ordinance No. 280, of the City of Brownsville, which said ordinance is duly entered in the Minutes of said City Commission in Volume 22, at page 383-384, was duly published and was a valid ordinance in full force and effect on all the dates and at all times mentioned in plaintiff’s original petition herein, which said ordinance, in words and figures, is as follows, to-wit:
“ ‘Ordinance No. 280.
“ ‘An Ordinance fixing rules and regulations governing the liability of the City of Brownsville, Texas, for damages to person or property and providing for thirty days notice or any claim therefor and for suit thereon to be brought within six months thereafter, and further providing that there shall be no liability on the part of the City on account of any damage or injury to person or property by reason of any defect in any public street, highway or grounds or any public work of said City unless said defect is called to the attention of the City Engineer or City Manager at least twenty-four hours prior to such injury, by written notice thereof.
“‘Be it ordained by the City-of Brownsville, Texas:
“ ‘1. That the City of Brownsville shall not be held responsible on account of any claim for damages to any person or property, unless the person making such complaint or claiming such damage shall, within thirty days after the time at which it is claimed such damage was inflicted upon such person or property, file with the City Secretary of the City of Brownsville, Texas, a true statement under oath as to the nature and character of such damages or injuries, the extent of same, the place where same happened, the circumstances under which same happened, the conditions causing same, with a detailed statement of each item of such damages or injuries, a list of witnesses, if any are known to affi-ant, who witnessed such injury or the accident or happening causing the same, and unless further suit be brought and filed thereon within six months after the date such injury was suffered or damage occurred, whether to person or property.
“ ‘2. That the City of Brownsville shall never be liable on account of any damage or injury to person or property arising from or occasioned by any defect in any public street, highway, alley, or ground or public work, building or project of said city, unless the specific defect causing said damage or injury to person or property shall have been actually known to the City Manager or City Engineer by personal inspection for a period of at least twenty-four hours prior to the occurrence of the injury or damage to person or property, unless the attention of the City Manager or City Engineer shall have been called thereto by notice thereof in writing at least twenty-four hours prior to the occurrence of said injury or damage to person or property, and proper diligence has not been used to rectify the defect after actually known by or attention thereof is called in writing to said City Manager or City Engineer of said city.
“ ‘3. If any section, paragraph, subdivision, clause, phrase, sentence, word or words or provision of this ordinance shall be adjudged invalid or held to be unconstitutional by any court of competent jurisdiction, such judgment shall not impair, affect or invalidate the remainder of this ordinance or any other part or provision hereof, which shall remain in full force and effect thereafter.
" ‘4. This ordinance shall take effect immediately after its passage and publication in accordance with the provisions of the City Charter of the City of Brownsville, Texas.’
“3. That prior to the institution of this suit and within thirty days after the time it is claimed the damage- alleged by plaintiff was inflicted upon the person of plaintiff, neither plaintiff or anyone for him, filed with the City Secretary of the City of Brownsville, Texas, a true statement under oath as to the nature and character of such damages or injuries complying with the provisions of Section 1 of said Ordinance No. 280.
“Wherefore, defendant prays judgment of this plea and that it be dismissed from this cause with its costs.”

The said plea was duly verified by the City Secretary of appellee.

On April 22, 1939, appellant filed his first amended original petition, in which his allegations as to negligence, damage, etc., were amplified. Paragraph 6 of said petition was as follows: “That immediately upon the occurrence of said injury, defendant’s employees, Wallace and Martinez, and others, took plaintiff to the City Hall to the City Health Nurse, and later to the City Health Officer, T. A. Kinder, and report was made of said injury to City Manager Runyon, who directed plaintiff to see the insurance agent, Sam Hugh-ston, with whom said Runyon claimed the City carried compensation insurance, and the said Runyon, upon being advised by said agent and plaintiff that the City carried no compensation and upon being advised by plaintiff that the City Health Officer had ordered that he, plaintiff, could not do any heavy work, discharged plaintiff.”

On the 24th day of April, 1939, before the court, hearing was had on the above quoted plea in abatement of the appellee. The judgment of the court sustained same, and appellant duly excepted to the action of the court. In the same order it appears that appellant requested leave to amend, and such leave was granted. There is no statement of facts or bill of exceptions embodying the evidence heard by the court on this plea. We take it that it is to be assumed that the ordinance plead was introduced in evidence on the hearing.

On April 25, 1939, appellant filed his second amended original petition. In this petition appellant demurred generally to the allegations of appellee’s plea in abatement, urging the unconstitutionality of the ordinance as violating both the State and Federal Constitution; its invalidity because of the unreasonableness of the time allowed by the ordinance for giving notice of the claim in compliance therewith; urging that the ordinance was not applicable to the nature of the cause pleaded by plaintiff; allegations as to negligence and damages were substantially the same as set forth in the original and first amended petitions.

Paragraphs 10, 11, 12 and 13, of said second amended petition are as follows:

“X. That immediately upon the occurrence of the accident, plaintiff, as herein-before alleged, was taken to the City Health Nurse, and by her sent to the City Health Officer, T. A. Kinder, Jr., and he could not within said thirty days period give a sworn statement in writing of the nature and character of his injuries or damages, or the extent of same, because he was never apprised by said Kinder of the nature and extent of same, and still knows only that the injuries suffered by him in said accident have affected, as. hereinbefore alleged, his physical condition until he has been rendered unfit to perform manual labor.
“XI. That after he had been treated by said Kinder, from the 23rd day of September to the 14th day of November, he reported to said City Manager Runyon whose secretary and subordinate Cromack is, both occupying desk space in the same room within a few feet of each other, and on all or nearly all of the conversations herein alleged, said Cromack was present within sound and ' hearing of the said -Runyon; and Runyon, at that time laboring under the erroneous impression that the defendant did carry compensation insurance for its employees, assured plaintiff that he would be taken care of by the city’s insurance carrier, the local agent for whom is Sam Hughston, in said city, and plaintiff, thereupon, at the express direction of said Runyon, reported his injuries to said Hughston, who at first assured him he was fully covered by compensation insurance, but who later, after he had checked through the insurance policies written for the defendant city, informed plaintiff that the city was not so covered; plaintiff thereupon returned to Runyon and informed him of Hughston’s decision; then for the first time said Runyon and Cro-mack examined said policies and after the examination said Cromack informed his superior, Runyon, that Hughston was correct — the City had no compensation insurance, but only public liability, and upon plaintiff’s presenting to said Runyon a note from Dr. Kinder asking that he be given light work, said Runyon informed him that he had no such work, and that the only work he had was that formerly done by plaintiff, who he now alleges, was then and is now unable to perform heavy labor, and in consequence was let out by the city.
“XII. That by their actions as above alleged Runyon and Cromack waived for the defendant city, as they had a right to do, the provisions regarding notice as plead by defendant in pleading said ordinance in abatement and in bar, and furthermore defendant is now estopped, after having immediate eye-witness proof of the injury, medical determination of its extent and character, having trolled plaintiff along for a period of sixty days -in the belief that no notice in writing was required, having further informed him through the mouths of the custodians of its insurance policies that he was covered by compensation insurance, and having him further trolled for an additional thirty days while the insurance agent and the city’s responsible employees and officers determined for themselves whether or not plaintiff was covered by insurance, to plead the requirements of said ordinance requiring statement under oath of the numerous matters therein set forth.
“XIII. That plaintiff is a laboror; speaks, reads and writes English very little and that with difficulty, and he accepted the statements of Runyon and Cromack at face value, as well as those of the City Health Officer, Dr. Kinder, and believed for a period of about ninety days after the injury, and was reasonable in so believing, that nothing further need be done but to report promptly to the city nurse, place himself under the care of the city physician, report back to the city manager; thence go to the city’s insurance carrier’s agent and then return to report to Runyon and Cromack as before alleged.”

On April 28, 1939, appellee filed motion to strike the second amended original petition, and that the case be dismissed at plaintiff’s cost. The motion set up the prior proceedings in the case and the sustaining of the plea in abatement. In this motion was likewise pleaded, by way of abatement, the ordinance plead by appel-lee in its original answer. This motion was heard on the 3rd day of October, 1939, and the motion of appellee to strike the petition, and appellant declining to amend, it was ordered by the court that appellant’s cause be dismissed, and ap-pellee recover its cost. To this order appellant excepted and gave notice of appeal and duly perfected this appeal.

Appellee has objected to our consideration of certain of the assignments urged by appellant on grounds 'of multifariousness, etci

The gravamen of appellant’s complaint as to the action of the trial court clearly appears from his brief filed in the cause. The questions are fundamental in character and merit consideration. Rather than to take up the assignments of appellant in detail we shall endeavor to state the substance 'thereof.

Appellant contends that the ordinance plead by appellee was unconstitutional, hence void and of no force and effect; that if not void on account of being unconstitutional, it provides an unreasonably .short space of time within which the notice of claim as provided by the. ordinance be .given; third, that appellee waived the .giving of notice, or is estopped, by the conduct of its officers and agent,' from asserting that same was not given.

In the case of City of Waco v. Thralls, 128 S.W.2d 462, there was before the Waco. Court of Civil Appeals a case in many' respects similar to the instant case. A section of the city charter of Waco was almost an exact duplicate of the ordinance here in question and was considered by the court. It was held that the provision as to filing suit within six months was in direct conflict with provision 6 of Article 5526, Revised Statutes, and was therefore void. Our State Constitution, Article 11, Sect. 5, Vernon’s Annotated Statutes, authorizing cities to adopt Home Rule Charters, provides that such cities may “adopt or amend their charters, subject to such limitations as may be prescribed by the Légísláture, and providing that no charter or- any ordinance passed under said charter shall contain any provision 'inconsistent with the Constitution of -the State, or of 'the general laws enacted by the Legislature' of this State.” Article 1165, R.S., was also cited in the opinion as having bearing on the matter.

In our opinion, under the law the six-months period' is clearly void.

In the course of the opinion in the above referred to cause it was stated: “The provision in the city charter requiring that notice of claim for damages be filed with the city within thirty days is apparently valid. Cawthorn v. City of Houston, Tex. Com.App., 231 S.W. 701; City of Waco v. Watkins, Tex.Civ.App., 292 S.W. 583; City of Beaumont v. Baker, Tex.Civ.App., 95 S.W.2d 1365; 30 Tex.Jur. 555.” (The above quoted provision is to be found on page 464, 128 S.W.2d.)

It was further held in this case as follows: “The provision requiring the filing of notice of claim for damages may be waived by the duly authorized city officials, provided the waiver occurs before the expiration of the period for filing same.”

Cawthorn v. City of Houston, Tex.Com. App., 231 S.W. 701, and 30 Tex.Jur. 558, are cited as sustaining, and do sustain, the proposition asserted.

It is toibe noted that City o.f Waco v. Thralls, supra, was reversed and remanded and not rendered.

But in our opinion the matter urged by appellee was in bar and not properly plead in abatement. The fundamental distinction, to our mind, is that a plea in bar goes to the cause of action, while a plea in abatement goes only to the action. A successful establishing of a plea in bar extinguishes and puts an end forever to plaintiff’s cause of action. Not so as to the establishing of a plea in abatement. The effect of this is a judgment either postponing or dismissing the action. The cause of action is unaffected thereby. Such cause of action may be reasserted.

To illustrate, a single woman executes and delivers a promissory note, then marries, and is thereafter sued thereon without the joinder of her husband. The nonjoinder of her husband is ground for abatement of her suit, but the cause of action against her is unaffected by the judgment sustaining the plea in abatement. On the other hand, this same woman, after marriage, executes a note, the plea as to her coverture would be a plea in bar.

A plea which extinguishes a cause of action asserted should be. plead in bar and not in abatement. Connor v. Hawkins, 64 Tex. 544; Hamilton v. Cushman Mfg. Co., 15 Tex.Civ.App. 338, 39 S.W. 641; Taliaferro v. Warren, Tex.Civ.App., 30 S.W.2d 393; Pucek v. Koppa, Tex.Civ. App., 32 S.W.2d 248; Carmichael v. Page, Tex.Civ.App., 32 S.W.2d 674.

If plaintiff did not file the notice in the time required hy the ordinance, and same is valid, and if appellee has not waived such filing, or has not estopped itself, appellant’s cause of action may be forever extinguished on trial. It requires a trial to put an end to a cause of action.

What effect did the judgment entered have upon appellant’s rights? Clearly he was entitled to a trial on the merits. By the judgment entered he is denied this right. If he had elected to plead in avoidance of appellee’s plea in bar if the exceptions were sustained to his plea, he might amend to meet them. It is true he did amend to try to meet appellee’s so-called plea in abatement, but a judgment was entered equivalent to the sustaining of a general demurrer. No general demurrer was urged or passed upon as to appellant’s petition or amended petition. Appellant may or may not have a cause of action, a trial is an appropriate proceeding to determine this. He may or may not state a cause of action, but this is properly determined only on a trial.

The case is reversed and remanded.


author: SMITH, Chief Justice.

text:
    GARRETT et al. v. ANDERSON, County Judge, et al.
    No. 10948.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1940.
    Rehearing Denied Nov. 27, 1940.

      Johnson & Rogers and Wm. N. Hensley, all of ,San Antonio, for appellants.
    John R. Shook, L. J. Gittinger, and Archie S. Brown, all of San- Antonio, for ap-pellees.
   SMITH, Chief Justice.

This action was brought by W. R. Garrett and others, all of them being official court reporters of the District Courts and County Courts at Law of Bexar County, against Honorable Charles W. Anderson, County Judge, and the County Commissioners and County Auditor of said County. The.object of the suit is to force the County officials, by mandamus or injunction, to continue, as theretofore, to pay the plaintiffs annual salaries of $3,600 each, as prescribed by statute for court reporters in counties having a population of more than 290,000 and less than 325,000, “according to the last preceding or any future federal census.”

The suit was provoked by an order of the Commissioners’ Court which had the effect of reducing the appellants’ annual salaries from $3,600 to $3,000 per year, on the assumption that the population of the County was 337,557 according to the “last preceding” (1940) federal census, whereby the County was taken out of the 290,000-325,000 population bracket, as ascertained by the census of 1930.

Garrett and his associates have appealed from an order of the District Court denying mandamus and injunction.

The appeal turns on the question of whether the population of Bexar County, as ascertained by the sixteenth decennial federal census, taken in 1940, had been officially determined and promulgated so as to give it the status of the “last preceding federal census” within the contemplation of the statutes prescribing the salaries of official court' reporters in 'the several classes .of counties in this State.

Appellants stand, in their suit, upon the provision of Article 2326e, Vernon’s Civ. Stats., as follows: “Sec. 2. That the official shorthand reporter of each District Court, Criminal District Court, and County Court-at-Law in each county in the State of Texas having a population of more than two hundred and ninety thousand (290,000) and less than three hundred and twenty-five thousand (325,000) inhabitants, according to the last preceding or any future -Federal Census, shall receive a salary of Thirty-six Hundred Dollars ($3600) per annum * * As amended Acts 1939, 46th Leg. Spec.L. p. 623, § 1.

The federal statutes provide no formula or procedure for the promulgation of reports of the population ascertained by the taking of any census. The nearest approach to such procedure is found in 13 U.S.C.A. §§ 4 and 213, in which it is provided that, “The Director.of the Census is authorized and directed to have printed, published, and distributed, from time to time, bulletins and reports, of the preliminary and other results of the various investigations authorized by law; * * (Section 4.) “The Director of the Census is hereby authorized * * * to have printed by the Public Printer, in such editions as the director may deem necessary, preliminary and other census bulletins, * * * and to publish and distribute said bulletins and reports.” (Section 213.)

The record in this case does not embrace any report or statement purporting to emanate directly from the “Director of the Census,” but the Hon. Ben S. Morris, duly accredited supervisor of the census for the Twentieth District, consisting of Bexar County, issued and delivered to the County Judge the following preliminary report of the census for said County.

“Form P 114 (1940 and 1930)
“Department of Commerce
“Bureau of the Census
“Sixteenth Census of the United States
“Office of Supervisor of Census
“821 Frost Bank Building
“San Antonio, Texas,
“June 25, 1940
“Released for Immediate Use
“Sixteenth Census — Preliminary Announcement of Population
(Subject to Correction)
“The population of County of Bexar, State of Texás, as shown by a preliminary count of the returns of the Sixteenth Census, taken as of April 1, 1940, is 337,557, as compared with 292,533 on April 1, 1930. The 1940 figures are preliminary and subject to correction.
“Ben S. Morris
“Supervisor of Census.”

No question is made of Supervisor Morris’ authority to execute and promulgate the “preliminary announcement of population” of Bexar County, nor is there any contention that the figures in his report to the County Judge are substantially inaccurate, or so far from the true number .as to affect the question presented here. The report purports (without question of its authenticity) to be upon forms furnished the Supervisor by the Census Bureau, apparently under authority provided in Sections 4 and 213 of the Census Act, •supra. Like reports, or “preliminary announcements,” of the census of the City of •San Antonio and of Bexar County, were furnished on this form by Supervisor Morris to the Mayor and Chamber of Commerce, as well as the County Judge, in accordance with the policy of the Bureau. It should be presumed from the record here that Mr. Morris was acting fully within his official authority as supervisor in issuing the report for the benefit of the public.

We are of the opinion, therefore, and here hold as a matter of law, under the record made here, that the report of Supervisor Morris amounted to an official announcement, in behalf of the federal government, that the population of Bexar County, according to the last preceding federal census, is 337,557, subject to such necessarily slight and here immaterial corrections as may be made in the final figures promulgated by the appropriate authority in the National Government. It follows from this conclusion that the County of-ficials of Bexar County were authorized to take official notice of that report as a declaration of the “last preceding * * * Federal Census” as contemplated in Article 2326e, and, accordingly, to discontinue ■payment of the salaries prescribed in that statute for court reporters in counties having a population of not less than 290,000 •and not more than 325,000. The trial court therefore did not err in refusing to issue any writs requiring the county officials to authorize and make payment of such salaries. 14 C.J.S., Census, page 103, § 6; Forde v. Owens, 160 S.C. 168, 158 S.E. 147; Elliott v. State, 150 Okl. 275, 1 P.2d 370; Herndon v. Excise Board, 147 Okl. 126, 295 P. 223; Ervin v. State, 119 Tex. Cr.R. 204, 44 S.W.2d 380; Holcomb v. Spikes, Tex.Civ.App., 232 S.W. 891. We overrule appellants’ first proposition.

Appellants contend m their second proposition that because their salaries are fixed in Article 2326e at $3,600 per annum, the Commissioners’ Court was without authority to diminish that salary in the midst of the fiscal year, as was attempted in the order of the Commissioners’ Court assailed in this suit. We overrule the contention. The salary of $3,600 per annum was operative only so long as the population of the County remained in the 290,000 to 325,000 bracket, and when the County passed out of that class the authority of the County to pay that salary, or at the rate of that salary, automatically ceased.

The judgment is affirmed.


author: MONTEITH, Chief Justice.

text:
    UNITED EMPLOYERS CASUALTY CO. v. MARR.
    No. 11130.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 24, 1940.
    Rehearing Denied Nov. 21, 1940.

      Will R. Saunders, of Dallas (W. E. Johnson, of Dallas, of counsel), for appellant.-
    Burris & Benton, of Houston (Fred Parks, of Houston, of counsel), for appellee.
   MONTEITH, Chief Justice.

This is an appeal in a workmen’s compensation case, brought by appellee, S. B. Marr, to set aside an award of the Industrial Accident Board in favor of appellant, United Employers Casualty Company, and to recover compensation for total and permanent incapacity alleged to have been the result of an injury sustained by him on May 4; 1939, in the course of his employment as a plumber’s helper with M. G. Herring, who carried compensation insurance with appellant. '

Appellant answered by general demurrer, exceptions, and a general denial.

In answer to special issues submitted, a jury found, in effect, that appellee had sustained an accidental injury to his back on or about May 4, 1939, while engaged with another person in carrying a water heater; that the injury so received was a producing cause of his incapacity to work; that such incapacity was total and permanent and not temporary; that $30 was an amount just and fair to both parties to be computed as ap-pellee’s average weekly wage; and that manifest hardship- would result unless the compensation was paid in a lump sum.

Based upon the answers to said special issues, judgment was rendered in favor of ap-pellee and against appellant for 401 weeks’ compensation at $18 per week, reduced to a lump sum.

Appellee pled and the jury found on sufficient evidence that appellee had injured his back carrying a water heater while qmploy-,ed by M. G. Herrin, who was engaged in constructing a house in Houston, Texas. Appellee’s evidence shows that he attempted to work for several days'thereafter but that his pain became so severe that he was compelled to quit work; that he then consulted a doctor and that thereafter, in August, 1939, he was placed in a hospital in Mansfield, Louisiana, where he underwent a. manipulative operation of the sacroiliac region; that following said operation he was placed in a cast which'-he was compelled.to wear for several months and that he had been unable to work since such tirqe. .

By its first and second propositions appellant contends that the court erred in refusing to give its requested Special Issues Nos. 1 and 5. Requested Issue No. 1 inquired as to whether appellee’s incapacity was not caused solely from the effects of the operation performed in Mansfield, Louisiana, subsequent to said injury, and Special Issue No. 5 inquired as to the degree or percentage of the appellee’s total incapacity, if any, that was not caused by said operation.

Appellee pled that, as a result of said injury, it was necessary that a manipulative operation be performed to break down certain adhesions which resulted from the effects of said injury and that said operation was performed under the advice and with the assistance of Dr. H. B. Curtis, the physician to whom he had gone when he was first injured and who was treating him up to the time of the trial.

The record does not show that appel-lee was suffering from any other disease or injury for which a sacroiliac manipulation would have been a proper treatment or that he had, at any time, sustained any injury other than the one of May 4, 1939; further, there is no evidence that the operation performed in Louisiana was for any purpose other than treatment for the injury received May 4, 1939.

Our courts have uniformly held that a compensable injury under the Workmen’s Compensation Law includes and contemplates not only the immediate effects arising from the injury itself, but the effects of any aggravation of such injury resulting from medicinal or surgical treatment, when there is no intervening, independent cause to break the chain of causation between the new injury or aggravation and the original injury. 39 A.L.R. 1276; Kirby Lumber Co. v. Ellison, Tex.Civ.App., 270 S.W. 920; Ætna Life Ins. Co. v. Liles et al., 131 Tex. 383, 114 S.W.2d 534; Zurich General Accident & Liability Ins. Co. v. Daffern, 5 Cir., 81 F.2d 179.

Since appellee pled and the evidence shows that said operation was performed on appellee for the purpose of attempting to cure the effects of an injury received in the' course of his employment and there is no evidence to the contrary, the action of the trial court in refusing appellant’s specially requested Issue No. 1 must be sustained.

Appellant’s contention that the court should have submitted his specially requested Issue No. 5, inquiring as to what degree or percentage of appellee’s incapacity was not caused by said operation cannot be sustained. The evidence shows that appellee underwent said operation to recover from the effects of an accident sustained in the course of his employment. Any disability resulting from said operation is considered as part of the original injury and is compensable as such.

Further, it is now the settled law that the fact that a compensation claimant was partially incapacitated from a disease or injury sustained prior to the time he received the injury for which compensation is sought, would not prevent him from recovering compensation for the full amount, which, under the law, he was entitled to receive without reference to the disease or injury for which compensation is sought. Texas Employers’ Ins. Ass’n v. Parr, Tex.Com.App., 30 S.W. 305.

Appellant assigns error in the action of the trial court in the admission of certain evidence of Dr. Denman, a medical witness for appellee, and to the manner in which the court conducted the trial during Dr. Denman’s examination.

In answer to a question by counsel for appellant as to what he did at the time he saw appellee in June, 1939, Dr. Denman began his answer: “Well, I used the necessary procedure laid down by all teachers and authorities upon diagnosis * * *”

Before the answer was completed counsel for appellant objected on the ground that the witness’ answer was too vague and indefinite; whereupon the court said: “Give the doctor time to go into details and I think he could do that.”

This contention cannot be sustained. It was obviously the intention of the court to inform counsel that the witness would be permitted to complete his answer, which was entirely proper.

On another occasion while testifying as to what he did when appellee came to him, Dr. Denman stated: “I am kind of confused, Judge, as to what to say. It is necessary for a doctor to utilize all diagnosis.”

The court then said: “Go ahead”.

While appellant argues that this statement amounts to an instruction by the court for the doctor to testify as to all diagnosis used by him, we think that the court’s statement is susceptible to the construction that the doctor, having said that he was confused and having hesitated to proceed with his answer, was instructed by the court to proceed with his testimony.

Appellant further contends that reversible error was committed by the trial court in admitting over its objection the following testimony by Dr. Denman in answer to a question by counsel for appellee as to whether or not the future course of injuries of this kind have any bearing on whether the disability of appellant would he permanent or not. The witness answered :

“If I could just tell what I know about these sprains without violating any rules I would know how to talk.”
“Q. We have to confine it to this particular case. A. I know it and I am trying hard to cooperate. Let me give my candid opinion and if I say anything wrong stop me. It is unreasonable to expect any surgeon to foretell the exact future of any sprain. It altogether depends upon the amount of damage done the tissues or organs involved and to the amount of the individual reconstructive ability * * * if that is clear. A young, vigorous, dynamic young man has more God-given power to overcome disease and injury than an old, declining undernourished man or woman. Life is likened to a man going over a hill top; a child is growing and developing * * *
“Mr. Johnson, counsel for appellant: We object to the lecture in general terms.
“A. I am not lecturing; I am answering a question, if you will not disturb my thoughts.
“Mr. Johnson: And ask that the doctor he instructed to answer the question like other witnesses.
“A. I am answering it.
“Mr. Johnson: We object to the remarks of the witness.
“Court: I think he is entitled to explain his answer.
“Mr. Johnson: We submit that an oratorical dissertation as to what life is like is wholly foreign to the question that has been asked.
“Court: That is a matter of opinion.
“A. A child’s bones will put out callus forming material and heal within three or four months * * *
“Mr. Johnson: We object on the same grounds.
“Court: Overrule his objection.
“Mr. Johnson: Note our exception.
“A. A man 60 years old is not possessed of the same callus forming material and his bones sometimes never heal. All of these things a doctor must sum up and evaluate before giving an honest opinion in the case. I know of men in East Texas who were log rollers * * *
“Mr. Johnson: I object to that.
“Court. Sustain the objection.”

While the statement of the witness was not entirely responsive, it was an attempt on his part to explain his answer. Further, we think that the testimony could not possibly have influenced the jury in answering the issues submitted to it.

It is the established rule in this state that the admission of irrelevant or immaterial evidence is not ground for reversal unless it is shown that it may have influenced the results of the verdict, or that it is probable that the testimony caused the rendition of an improper verdict. 17 Tex.Jur., 350; Epting v. Nees, Tex.Civ.App., 35 S.W.2d 717; Nance v. McClellan et al., Tex.Com.App., 89 S.W. 2d 774, 777.

While the witness, Dr. Denman, was on voir dire examination counsel for appellant asked him the following question: “All right, doctor, what are the different things that will cause what you find that way?”

Upon objection by counsel for appellee, counsel for appellant stated: “I submit to the court that I have a right to find out just what will cause all these things”; at which point the court said: “When you do you waive any objections to his competency. I am perfectly willing for you to do it. if you want to make him your own witness.” Counsel for appellant then stated: “We object to the ruling that it makes Dr. Denman our witness”, to which the court answered, “If you gentlemen will let Doctor alone he can tell what he knows.” The witness thereupon answered : “That is all I want to do.” Counsel for appellant objected to the ruling of the court as being prejudicial and requested that a mistrial be declared, for the reason that he had a right to make his objection under the law. The court stated: “You have. The privilege of voir dire does not give you the privilege to interrogate the witness independently of the voir dire with respect to his testimony.- If you want to ask him any questions I am going to hold that you have waived your objection to his competency.”

It is not only the court’s duty to maintain orderly procedure in his court and to see that the case before him is tried without unnecessary or undue delay, but we think that, under the facts in this case, the remarks and comments of the court were not of such a character as to amount to reversible error, since they are not shown to be so prejudicial as to be fundamentally erroneous, particularly in view of-the fact that at the time they were made, counsel for appellee was insisting upon his right to continue his direct examination and counsel for appellant was insisting upon his right to continue his voir dire examination and that the remark “you gentlemen” was in all probability intended for counsel for appellee as well as counsel for appellant.

With this explanation of the court’s action and the fact that there is no showing that said remarks influenced the jury in rendering its verdict, appellant’s contentions must be overruled.

Appellant further assigns error in the action of the trial court in refusing to require the witness, Dr. Denman, to make a “yes or no” answer to a question propounded on voir dire examination.

The transaction complained of is reflected from the following statement of the record:

“Q. Doctor, kindly pay close attention to this question and then answer it ‘yes’ or ‘no’, and then if you want to explain * ■ * * A. I will answer it this way: that I have too much respect for my profession and for medical knowledge, in treating you sick in bed or your sick child, to be restricted in any such manner — law or no law, I want to give my opinion of this case.
“Mr. Johnson: We object to that.
“Court: You are taking him on voir dire, counsel, and when you do that you challenge him. -
“Mr. Johnson: But we have a right that he be required to answer our questions according to the due forms of law. We object to the refusal of the Court to compel him to answer the questions.
“Court: No, I am not compelling him to answer the question. I decline to strike the statement from the record. When you take the witness on voir dire that is a challenge, and it is cross-examination in advance. Doctor, this is the rule in the Courthouse: Where a physician examines a person for the purpose of becoming a witness he is not at liberty in giving his testimony to state what the patient said. Whether that rule is good or bad I have to operate by it. If you want to testify you will have to testify with that restriction.”

The witness stated, in effect, that the question could not be answered yes or no. The trial court refused to c.ompel the witness to so answer the question.

It is the established rule in this state that a witness may not be required to answer -a question “yes or no” when the nature of the question is not such as to make such an answer appropriate. In such case it is his right and duty to so answer that he may state the truth and have the jury clearly understand his answer. 44 Tex.Jur. 1103; Owens v. State, Tex.Cr.App., 96 S.W. 31; Texas Central Ry. Co. v. Wheeler, 52 Tex.Civ. App. 603, 116 S.W. 83.

Appellant assigns error In the admission of the testimony of the witness, Dr. Den-man, wherein he is alleged to have stated that his opinion was based at least in part on what the plaintiff told him and was not based wholly upon his objective findings.

It was stipulated by the parties that a nurse in Dr. Denman’s office gave appellee three or four light treatments at the doctor’s direction. Dr. Denman testified that appellee came to him for advice &s to his condition; that after he made the physical examination, which followed the history taken of the case, he saw evidence that fixed his trouble from objective findings; saw his posture and his limbs, which were objective findings. He stated that he based his opinion upon everything that the case presented to him and that he then proceeded to do laboratory work, which was an objective finding, and a blood count and X-ray, and made physical examination. He stated that he could testify, basing his testimony upon his exclusive findings in the case, and not basing it upon one single word that appellee had told him. He stated: “I want to reiterate before I answer the question that I can arrive at the opinion of this case wholly upon my objective findings.”

It is uniformly held in this state that statements made by patients to their physician as to subjective symptoms for the purpose of qualifying such physician to testify and not for the purpose of treatment are inadmissible in evidence. It is the rule, however, that testimony of a physician as to a diagnosis made by him from objective symptoms and from his own examination of the patient, independent of what the patient may have told him, is not inadmissible, though the patient may have made self-serving declarations to him. Brotherhood of Locomotive Firemen & Enginemen v. Raney, Tex.Civ.App., 101 S.W.2d 863; Federal Underwriters Exchange v. Arnold, Tex.Civ.App., 127 S.W.2d 972; Missouri Pacific Co. v. Baldwin, Tex.Com.App., 273 S.W. 834; Traders & General Ins. Co. v. Milliken, Tex.Civ.App., 110 S.W.2d 108.

The court in the instant case, after having heard the testimony, found the witness to be competent to express his opinion as to his diagnosis and findings from his examination and treatment of appellee. Its ruling under these facts cannot be disturbed in the absence of a showing of abuse of his discretion. Rogers & Adams v. Lancaster et al., Tex.Com.App., 248 S. W. 660.

Appellant assigns error in the action of the court in permitting Mr. Parks, an attorney for appellee, in his opening argument to make the following statements to the jury, without taking any affirmative action: “And is it reasonable to assume that those two men would have to be off from work for two days if all they had to testify to was the fact that they took that water heater out there and that they carried it in, and that Marr didn’t carry it in. Their statement was taken by the insurance company; they could have been subpoenaed and -read that statement, and in five minutes time refresh their memory as to what they said; but no, we find one of them over here in the lobby of the hotel, first time he had seen that since it was signed out there, and he turned it in to his boss and he spent thirty or forty minutes there. • You gentlemen will recall his testimony as to the time he spent in the lobby of that hotel.”

Appellee testified that at the time he sustained his injury he was assisting another person in carrying a water heater from a delivery truck into a house. A truck driver and his assistant testified that they had delivered the water heater without assistance from appellee. There is also testimony by the truck driver and the assistant that they were b.eing paid for their time while attending court and that one of them had spent some time in a hotel lobby at night going over his testimony with counsel for appellant.

Appellant also complains of the following argument by counsel for appellee: “They, you heard the testimony of Dr. Peyton Denman after he was finally permitted to testify after being harassed for a period of time. I wouldn’t make such a broad statement, gentlemen, unless the record bore me out.”

We have heretofore referred to the objections made to the testimony of Dr. Den-man.

Counsel further complains of a statement made by counsel for appellee in his opening argument, to the effect that there was some attempt on the part of counsel for appellant to keep a certain medical witness’ testimony out of the record. . This statement obviously referred to the testimony of Dr. Denman.

While the arguments referred to were of a vigorous nature, a careful consideration of the record, including the testimony upon which the complaints against the arguments were based, leads us to the conclusion that they were justified by the record. Further, the trial court who was present and heard the arguments, the testimony on which they were based, and the facts surrounding them, put his stamp of approval on the arguments by overruling appellant’s objections at the time they were made. Under the record presented and the existing situation we are constrained to hold that these assignments present no reversible error. Corn et al. v. Crosby County Cattle Co., Tex.Com.App., 25 S.W. 2d 290; Gulf Casualty Co. v. Fields, Tex. Civ.App., 107 S.W.2d 661; O’Meara v. Williams et al., Tex.Civ.App., 137 S.W.2d 66; Wells v. Henderson, Tex.Civ.App., 78 S.W.2d 683.

Appellant further contends that the court erred in overruling and in not sustaining its objection to the following arguments by counsel for appellee, for the- alleged reason that said arguments were a misstatement of the law:

“Preponderance of the evidence, as that term is used in this charge, is meant the greater weight and degree of the credible evidence before you. Gentlemen, that means if one witness takes the stand and testifies to one thing and four or five or six or seven testify to something to the contrary, you can disregard all of those witnesses that testified to the contrary and accept the credible testimony that came from the witness stand from the one witness standing alone. Greater weight of the credible testimony doesn’t mean the greater number * * * ”
“You can have a temporary situation followed by a permanent, and then it may be followed by another temporary, or you can have a permanent situation followed by a temporary and then another permanent, but * * *

On objection to the argument by counsel for appellant, counsel for appellee withdrew said statement.

While the argument complained of propounded an erroneous theory of law, the ■charge of the court correctly defines the true theory and the jury was instructed by the court to take the law of the case from the charge of the court and be governed thereby. Further, upon objection by appellant’s counsel, appellee’s counsel withdrew said statement from the jury and asked them to disregard it.

We do not think that the jury could have been misled by the incident, or that said statement by counsel, after having been withdrawn from its consideration, could have influenced the jury in rendering its verdict. For this reason, appellant’s contentions cannot be sustained. Miller v. Winne, Tex.Civ.App., 28 S.W.2d 578; Maryland Casualty Co. v. Drummond, Tex.Civ.App., 114 S.W.2d 356; Self v. Whittier, Tex.Civ.App., 259 S.W. 628; Texas Compensation Ins. Co. v. Ellis, Tex. Civ.App., 71 S.W.2d 309.

Appellant contends that the answer of the jury to Special Issue No. 17 of the court’s main charge, wherein the jury found $30 to be the average weekly wage of appellee, was not supported by the evidence and is so contrary to the great weight and overwhelming preponderance of the evidence that it shows it to be the result of bias, sympathy, prejudice, or some other influence, and should therefore be set aside and held for naught.

Appellee testified that he was making $3 per day at the time he was injured;, that previous to that time the most that he had made was 50 cents per hour, eight hours per day, with the limit of 140 hours per month.

Prior to going to work for M. G. Herring, he was unemployed for a period of about three months, and prior to that time he had worked for a period of eight or nine months as a plumber’s helper; prior to that time he was unemployed for about 3½ months, and prior to that time had worked for eighteen months as a plumber’s helper.

The record shows that nonunion plumber’s helpers during the year immediately preceding the date of appellee’s injury, were paid from 50 to 75 cents per hour, and that union plumber’s helpers were paid $3 per day during the first year, $5 per day during the second year, and $6 per day during the third and fourth years of their employment, based upon a full time 6-day week composed of 6-hour days.

In the case of Texas Employers Ins. Ass’n v. Hamilton, Tex.Civ.App., 95 S.W. 2d 767, an employee was killed in highway work. His hours were limited to 30 hours during any one week at the rate of 35 cents per hour. At the time of his death he had been engaged in the work intermittently during a period of less than 90 days. It was held that where it is impracticable, because of the shortness of time of employment, to compute average weekly wages, wages shall be computed in any manner which may seem fair to both parties, and that evidence as to earnings of employees as common laborers in the same class or grade of work as that in which he was engaged at the time of his death were admissible for determination of the employee’s average weekly wages. Citing Article 8309, § 1, first subsections 1 to 3. This holding is followed in the case of Maryland Casualty Co. v. Drummond, Tex.Civ.App., 114 S.W.2d 356.

In the case of Traders & General Ins. Co. v. Powell, 130 Tex. 375, 110 S.W.2d 559, it is held that the wage being earned by an injured person on the date of his injury is not controlling as to his average weekly wage and that wages of other employees in the vicinity doing similar work during the year immediately preceding such injury are pertinent facts to be considered by the jury in fixing a just and fair wage rate for both parties.

In the case of Traders & General Ins. Co. v. Locklear, Tex.Civ.App., 119 S.W.2d 153, 156, no proof was offered as to what the actual earnings of plaintiff were during the year immediately preceding his injury. The testimony showed what wages were customarily paid to “rough necks” who had the same classification as plaintiff during that period, and an average weekly wage found by the jury based upon such testimony was -held to be proper and supported ~by the evidence.

Under above facts, it is thought that the jury was justified in fixing appel-lee’s weekly wage at $30 per week under the just and fair provision of the Workmen’s Compensation Act.

We have fully considered all of the propositions presented in appellant’s brief. None of them, in our opinion, show any error in the record which requires a reversal of the judgment.

Judgment of the trial court will therefore be affirmed.

Affirmed.