author: YOUNG, Justice.

text:
    SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellant, v. Carlos PERALEZ, Appellee.
    No. 1087.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 31, 1976.
    Rehearing Denied Jan. 26, 1977.

      Ralph L. Alexander, Kelley, Looney & Alexander, Edinburg, for appellant.
    Henrichson & Smith, Edinburg, for appel-lee.
   OPINION

YOUNG, Justice.

In this train-automobile collision case, Southern Pacific Transportation Company, defendant below, appeals from a $322,-650.00 judgment against it and in favor of Carlos Peralez, plaintiff below, for plaintiff’s property damage and personal injuries. The plaintiff had alleged that several acts of negligence by the defendant proximately caused the collision in question and the resulting damages to the plaintiff.

The parties tried the case before a jury which found that the collision was proximately caused by the negligence of Southern Pacific in the following respects: (1 through 5) maintenance of an extra-hazardous crossing without adequate warnings; (8 and 9) failure to ring the train’s bell continuously from a distance of at least 1,320 feet from the crossing; (10 through 12) failure to sound the train’s whistle continuously from a distance of at least 1,320 feet from the crossing; (13 and 14) traveling at an excessive rate of speed; (15 and 16) failure to keep a proper lookout; (17 and 18) failure to apply the brakes properly; (19 and 20) failure to give a proper warning of the train’s approach; (21 and 22) failure to maintain the crossing in proper condition; (33 and 34) failure to use ordinary care after the discovery of plaintiff’s peril. The jury refused to find that the collision was proximately caused by any negligence of the plaintiff. The total damage award (including the stipulation of $5,650.00) was $322,650.00. Based upon the stipulation and the jury verdict, the trial court entered judgment in favor of Peralez and against Southern Pacific in the amount of $322,-650.00. Southern Pacific appeals from that judgment.

A fair summary of the background facts shows these events and circumstances. On November 18, 1969, the date of the accident, at approximately 8:30 A.M., Peralez was driving his automobile north on Sugar Road approaching Edinburg, Hidalgo County, Texas, at a speed of approximately 50 miles per hour. At the same time, the Southern Pacific train was approaching from the northeast toward its crossing with Sugar Road at a speed of between 25 and 35 miles per hour. After both the engineer of the train and Peralez had applied their brakes, the train and the automobile nevertheless reached the intersection simultaneously and collided, causing the property damage and personal injuries of which Per-alez complains. The impact was between the right front of the automobile and the left front of the engine of the train.

At that time, Sugar Road was a two lane, black topped county road without either center line markings or railroad crossing markings. The only sign indicating a railroad crossing was a crossbuck sign which was located off the east shoulder of the road in line with several utility poles. The Southern Pacific tracks cross Sugar Road at an angle of approximately 45°, measuring from the north. The crossing was within the city limits of Edinburg. At the crossing the track was flat and level with the road and there was no grade to indicate the crossing. The railroad bed, however, is elevated above the surrounding land which was flat and on which there were no obstructions blocking the view to the south of the track. Sugar Road, as it approaches the crossing, is level and straight for more than 1,700 feet.

Appellant has brought forward 24 points of error. Among appellant’s points of error are several legal insufficiency points (“no evidence” and “as a matter of law”). With each such point, we shall view the evidence in a light most favorable in support of the jury findings and consider only the evidence and inferences which support the findings and reject the evidence and inferences contrary to the findings. Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup.1975). In considering the appellant’s factual insufficiency points of error (“insufficient evidence” and “against the great weight and preponderance of the evidence”), we shall examine the whole record to determine whether the evidence supports the jury findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We have grouped for discussion appellant’s points 9, 10, 11, 12, 13, 14, 15, and 16 asserting legal and factual insufficiency of the evidence to support the jury findings 1, 2, 3, 4, 5, 8, 9,10,11,12,13,14,15,16,17,18, 19, 20, 21 and 22.

About appellant’s complaint of the jury finding of an extra-hazardous crossing, it is the general rule that a crossing is extra-hazardous if the place is so peculiarly dangerous that a prudent person could not use the public road in safety unless the company employed a flagman or other extraordinary means to signal the approach of the train. If a crossing is extra-hazardous, it is incumbent upon the railroad to employ the necessary extraordinary means of warning. Missouri, K. & T. Ry. Co. of Texas v. Magee, 92 Tex. 616, 50 S.W. 1013 (1899); Panhandle & Santa Fe Ry. Co. v. Karr, 257 S.W.2d 486 (Tex.Civ.App. — Amarillo 1953), aff’d 153 Tex. 25, 262 S.W.2d 925 (1953); Lundberg v. Missouri-Kansas-Texas R. Co. of Texas, 232 S.W.2d 879 (Tex.Civ.App.— Waco 1950, writ ref’d n. r. e.). It has been further held that unless only one conclusion can be drawn from the facts describing the surroundings of any particular crossing, the question of extra-hazardous crossing is a question solely for the determination of the jury. Fort Worth & Denver Railway Com pany v. Williams, 375 S.W.2d 279 (Tex.Sup.1964); Tisdale v. Panhandle & S. F. Ry. Co., 228 S.W. 133 (Tex.Com.App.1921, opinion adopted).

Upon our review of the evidence, we find the testimony and exhibits presented were sufficient for the jury to find that the Sugar Road crossing was extra-hazardous. There was no grade in the road as it approached the crossing; there was but one crossbuck at the crossing and it was obscured by utility poles; and the track approached the road at 45° angle thereby increasing the difficulty of perceiving movement on the track. Joseph Nanus, James Evins, and Dr. Gary Montgomery, all testified that the crossing was difficult to see because of these factors.

About appellant’s attack on the jury findings that neither the bell nor the whistle was sounded continuously as the train approached the crossing, by statute an engineer is required to sound the train’s whistle or bell at least 80 rods (1,320 feet) from a public crossing. The bell must be sounded continuously until the engine has passed over the crossing. Tex.Rev.Civ.Stat. Ann. 6559h-ll (Supp.1976). Obviously, the purpose of this requirement is to warn of an approaching train. Missouri-Kansas-Texas Railroad Company v. Wagner, 400 S.W.2d 357 (Tex.Civ.App. — Waco 1966, writ ref’d n. r. e.); Texas & N. O. R. Co. v. Stratton, 74 S.W.2d 741 (Tex.Civ.App. — San Antonio 1934, writ ref’d n. r. e.).

The testimony of James Evins, Richard Cray, Mrs. Richard Cray, and Matías Morin, all disinterested witnesses, was sufficient to support the jury’s finding that the engineer failed to sound the whistle or bell. This evidence coupled with the reasoning in Wagner and Stratton, demonstrate the jury was correct in determining that this failure was a proximate cause of the collision. Texas & P. Ry. Co. v. Brown, 142 Tex. 385, 181 S.W.2d 68 (1944); Missouri-Kansas-Texas Railroad Company v. Chesher, 354 S.W.2d 645 (Tex.Civ.App. — Texarkana 1962, writ ref’d n. r. e.); Port Terminal Railroad Association v. Noland, 288 S.W.2d 276 (Tex.Civ.App. — Galveston 1956, writ ref’d n. r. e.).

Next, we examine appellant’s challenge to the jury findings that the train was traveling at an excessive rate of speed and that this was a proximate cause of the collision. In that regard, the record presents the following evidence about excessive speed and whether it was a proximate cause of the collision in question. The speed of the train was between 25 and 35 miles per hour. The crossing was located within the city limits of Edinburg and within the boundaries of the Southern Pacific’s Edinburg Yard. James Ramsey, the engineer of the train, testified that he normally traveled 6 miles per hour within the city limits of Edinburg. Rules of operation for Southern Pacific trains were introduced which showed that a train of the type involved here was required to travel “with caution” within yard limits. Travel “with caution” was shown to mean travel at reduced speeds according to conditions; that it meant to be prepared to stop short of a train, engine, car, misplaced switches, derails, or other objects before reaching a stop signal, and where circumstances require the train must be preceded by a flagman. Mr. Ramsey testified that he was probably traveling at a speed in excess of 25 miles per hour within the yard and the city limits of Edinburg. We have already determined that the evidence supports the jury findings that the crossing was extra-hazardous and that no warnings were sounded as the train approached the crossing. We now hold that the evidence is sufficient to support the jury’s finding that the speed was excessive.

The further determination of whether this rate of speed was a proximate cause of the collision was a question for the jury. Texas & New Orleans Railroad Co. v. Day, 159 Tex. 101, 316 S.W.2d 402 (1958). The testimony of the accident reconstruction experts showed that this collision could have been avoided if seconds or feet had been saved in either direction. Engineer Ramsey testified further that he saw the car and realized it was traveling at a high rate of speed but that he did not reduce his speed or apply his brakes until he knew that the car could not stop. We hold this evidence sufficient to support the jury’s determination of proximate cause. Southern Pacific Company v. Stanley, 473 S.W.2d 52 (Tex.Civ.App. — Corpus Christi 1971, writ ref’d n. r. e.); Texas & New Orleans Railroad Co. v. Day. 308 S.W.2d 245 (Tex.Civ.App. — Waco 1958), aff’d 159 Tex. 101, 316 S.W.2d 402 (1958).

The appellant's next contention is that there was insufficient evidence to support the jury’s 'determination that the engineer was negligent in failing to keep a proper lookout and that there was insufficient evidence to support the jury’s determination that such failure was a proximate cause of the collision. It appears to us that the evidence is legally and factually insufficient to support these findings. The engineer was clearly aware of Peralez’ automobile prior to the point beyond which the ear could not stop. This testimony was corroborated by the testimony of the witnesses, Bentley and Green. The engineer continued to watch Peralez’ car until he became aware that it would be unable to stop and then he applied the emergency brakes. So the evidence shows that the engineer’s lookout was proper and that his lookout, or lack of it, was not a proximate cause of the collision.

This brings us to the appellant's assertion that the jury findings that the engineer failed to properly apply his brakes and that such failure was a proximate cause of the collision were erroneous. It is the duty of the engineer and other trainmen to exercise ordinary care in the operation of a train. Missouri, K & T Ry. Co. v. Thomas, 87 Tex. 282, 28 S.W. 343 (1894); Muniz v. Panhandle & Santa Fe Railway Company, 285 S.W.2d 809 (Tex.Civ.App. — Amarillo 1955, writ ref’d n. r. e.). The facts of this case establish that Peralez’ car was seen by the engineer in time to avoid the accident. The engineer did not, however, attempt to stop the train until it was clear that Peralez was not going to stop. Evidence concerning the braking mechanism of the train involved showed that a service reduction of the brakes would have saved three seconds in the application of the emergency brakes. It is undisputed that both the car and train reached the crossing simultaneously. The three seconds saved by a service reduction, therefore, would have prevented the collision. We find that this evidence supports the jury’s determination that the engineer did not use ordinary care in applying the brakes.

Our consideration of appellant’s complaints about the jury findings of failure to give proper warning and of improper condition of the crossing will be confined to our brief determination that the evidence is legally and factually sufficient to support these findings. Our discussion of the evidence and reasoning concerning the foregoing jury findings resolves the contentions here.

Our attention moves now to the appellant’s challenge to the jury finding of discovered peril and proximate cause based on that discovery.

The doctrine of discovered peril has been clearly defined by the Courts of this State as follows: 1) an exposed condition brought about by the negligence of the plaintiff; 2) the actual discovery by defendant’s agents of the perilous situation in time to avert by use of all the means at their command, commensurate with their own safety, injury to the plaintiff; and 3) the failure thereafter to use such means. East Texas Theaters v. Swink, 142 Tex. 268, 177 S.W.2d 195 (1944); Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112 (Tex.Com.App. 1942, opinion adopted). The key in our case, therefore, is whether the appellant’s agents discovered the perilous position of Peralez in sufficient time before the collision that they could have through the exercise of reasonable care, in the use of all means at their command, avoided the accident.

The use of all means at hand does not restrict the engineer to stopping or slowing the train to avoid the accident. It includes, as well, the giving of an alarm by bell or whistle which would allow the plaintiff to extricate himself from the danger. Texas & N. O. R. Co. v. Krashoff, 144 Tex. 436, 191 S.W .2d 1 (1945); Houston, E. & W. T. Ry. Co. v. Sherman, 42 S.W.2d 241 (Tex.Com.App.1931, opinion adopted); Flanigan v. Texas Pacific Railway Company, 273 S.W .2d 110 (Tex.Civ.App. — El Paso 1954, writ ref’d n. r. e.); Hines v. Arrant, 225 S.W. 767 (Tex.Civ.App. — Texarkana 1920, writ ref’d n. r. e.).

The testimony of the defendant’s engineer, James Ramsey, establishes through the expert testimony of Mr. Bentley, that he realized Peralez was in a position of peril at least 215 feet prior to the collision. At this point, the defendant could not have stopped the train until a point 206 feet past the crossing. He could have, however, sounded his whistle or bell giving a warning to Peralez thereby enabling him to have stopped or swerved his vehicle in time to have avoided the collision. The evidence, therefore, is clearly sufficient to support the jury findings on discovered peril and proximate cause.

We overrule appellant’s points 9, 10, 11, 12, 14, 15, and 16. We sustain appellant’s point 13 about the appellant’s improper lookout. But this does not require a reversal of the case because there were several other findings on which the trial judge could predicate liability and base a judgment against Southern Pacific.

In several of its points, the appellant says that jury findings 25, 26, 31 and 32 were established by the evidence as a matter of law. These issues inquire about the contributory negligence of Peralez. We have carefully reviewed the record and we overrule appellant’s points regarding contributory negligence, which points are 17, 18, 19 and 20. Even if we were to agree with appellant’s contentions, the affirmative findings on discovered peril, absolved Peralez of any contributory negligence. Sisti v. Thompson, 149 Tex. 189, 229 S.W.2d 610 (1950); Wilson v. Southern Traction Co., 111 Tex. 361, 234 S.W. 663 (1921); 40 Tex.Jur.2d Part 2 Negligence § 98 (1976).

All of which brings us to a group of points wherein the appellant complains of the trial court’s admission of evidence offered by the appellee over the objection of the appellant and the exclusion of evidence offered by the appellant upon the objection of the appellee.

We deem it appropriate to note here that to obtain reversal of a judgment based upon an error of the trial judge, the appellant has a two-pronged burden. First, he must show that the trial judge’s determination was in fact error; second, that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115 (1951); Wilson v. City of Port Lavaca, 407 S.W.2d 325 (Tex.Civ.App. — Corpus Christi 1966, writ ref’d n. r. e.); Rule 434, T.R.C.P. (1976).

In appellant’s point 1, it complains of the trial court’s refusal to allow rebuttal. It is fundamental law that either party is entitled to rebut testimony introduced by his adversary. Markham v. Carothers, 47 Tex. 21 (1877); Lumbermen’s Lloyds v. Jones, 264 S.W.2d 759 (Tex.Civ.App. — Texarkana 1954), reversed on other grounds, 153 Tex. 379, 268 S.W.2d 909 (1954); Hendrick v. Voss, 334 S.W.2d 308 (Tex.Civ.App. —Dallas 1960, no writ).

The record reflects that appellant submitted the testimony of John Bentley as probative of appellee’s contributory negligence. Appellee then placed its expert, George Green, on the stand rebutting Bentley’s testimony. By the above stated rules, appellant, therefore, had the right of rebuttal on the evidence presented by appellee and it was probably error to deny such. Appellant must show, however, that the error was calculated to and probably did cause the rendition of an improper verdict. There is no such showing here in light of our determination that jury was correct in finding that the defendant failed to discover the peril of the plaintiff and act accordingly.

In its point 2, appellant contends that the testimony of Dallas Clark, area supervisor of Peralez, about the promotability of Peralez, was speculative and, therefore, inadmissible. We believe that our recent holding in Borak v. Bridge, 524 S.W.2d 773 (Tex.Civ.App. — Corpus Christi 1975, writ ref’d n. r. e.) is controlling about the admissibility of the type of evidence complained of here. The appellant’s contention is, therefore, without merit.

Appellant’s point 3 asserts error because cross-examination of Peralez on payment of hospital bills was not allowed. Specifically, appellant complains of the trial court’s refusal to allow questioning in the following manner:

“I will agree that my questioning concerning the hospital bill, the doctor, and the medical bills, in the past, will be on the following basis: ‘Were these bills paid by someone other than you or paid directly by someone other than you, or of the Southern Pacific Transportation Company?’ And, I.would not propose to interject the concept of insurance into that question.”

We find no error in the trial court’s refusal to allow this type of cross-examination in view of the rule that it is reversible error for the defendant to refer to plaintiff’s insurance protection. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558 (1949). It is also recognized that the extent to which cross-examination is permitted rests largely within the discretion of the trial court and its ruling thereon will not be disturbed unless an abuse of discretion is shown. Austin Road Company v. Ferris, 492 S.W.2d 64 (Tex.Civ.App. — Fort Worth 1973, writ ref’d n. r. e.). No such showing is made here in view of the possible reference to insurance of Peralez.

The trial court did, however, allow cross-examination on whether Peralez had personally paid his medical bills and on whether he presently and previously had medical insurance to cover psychiatric and psychological treatment. This evidence coupled with Peralez’ stipulation that approximately $4,200.00 of his medical bills had been paid and his admission that other sources had contributed to the payment of medical bills all rendered any error in the refusal to allow cross-examination harmless error. Rule 434, T.R.C.P.

We agree with appellant’s assertion in its point 4 that Leonel Ramirez’ testimony about the contents of certain regulations was a violation of the best evidence rule. In so doing, we hold that the best evidence of the provisions and regulation of the State of Texas and The Department of Transportation of the United States as to standards and conditions at railroad crossings are the regulations themselves. 2 McCormick & Ray Evidence § 1563, p. 403 (1956). We disagree, however, that the admission of the testimony is so prejudicial that it could not be cured by instructions to disregard. The general rule is that an instruction to disregard will cure error except in extreme cases where it appears that evidence is clearly calculated to influence the minds of jurors and is of such character as to suggest impossibility of withdrawing the impression produced in their minds. Edmiston v. State, 520 S.W.2d 386 (Tex.Crim.App.1975); 1 McCormick & Ray Evidence § 29, p. 29 (1956). The trial court did eventually instruct the jury to disregard Ramirez’ testimony.

Appellant objects to the following testimony of Claudio Castaneda as hearsay in his point 5.

“Q. You said once you had to help him turn. How did you know it was his back that was bothering him?
A. Well, from a conversation we had. I said, ‘What is wrong with you, Charlie?’ He said, ‘Well, my back is killing me again.’ ■ Or, something of that nature.”

The appellee had called the witness to testify to the pain suffered by him.

Statements of present pain are hearsay but they are admissible as an exception to the hearsay rule. Salinas v. Casualty Insurance Company of California, 323 S.W.2d 600 (Tex.Civ.App. — San Antonio 1959), aff’d 160 Tex. 445, 333 S.W.2d 109 (1960). Therefore, the testimony of Claudio Castaneda was properly admitted. Even if this admission of this evidence was error, we find it harmless error. The evidence presented is merely cumulative of other evidence on Peralez’ pain and could not have probably caused the rendition of an improper verdict

Appellant’s point 6 complains of the trial court’s refusal to admit into evidence a standard stop sign for comparison with the railroad’s crossbuck. We find no error in the trial court’s ruling. It is recognized that admissibility of demonstrative evidence rests within the discretion of the trial court, and its rulings will not be disturbed on appeal in absence of palpable abuse of discretion. Franco v. Graham, 470 S.W.2d 429 (Tex.Civ.App. — Corpus Christi 1971), reformed 488 S.W.2d 390 (Tex.Sup.1972); Briones v. Levine’s Department Store, Inc., 435 S.W.2d 876 (Tex.Civ.App.— Austin 1968), aff’d 446 S.W.2d 7 (Tex.Sup.1969); Liberty Sign Company v. T. C. Arendale, 433 S.W.2d 23 (Tex.Civ.App. — Fort Worth 1968, no writ). There was no abuse of discretion here in that the comparison of the stop sign and the crossbuck was accomplished through testimony of witnesses and exhibition of the sign before the jury; only the admission of the stop sign into evidence was refused. Appellant’s points 1, 2, 3, 4, 5 and 6 are overruled.

Appellant’s point 7 asserts error in the dismissal of Mrs. Florencia Garcia, a juror, and the continuing of the trial thereafter. Rule 292, T.R.C.P. allows for a juror to be excused if he is disabled. The disability which will be sufficient to justify the dismissal of a juror is largely left to the discretion of the trial judge. See 3 McDonald’s Texas Civil Procedure, § 11.14, p. 172 (1970). Where there is illness of a member of the juror’s family, the court may properly excuse the juror if it appears that his worry concerning the emergency will impair the juror’s ability to satisfactorily perform his duties. See 3 McDonald’s Texas Civil Procedure, supra. Rule 292 also provides that a verdict may be rendered by the concurrence of the same ten members of the original jury of twelve, and that if as many as three jurors are disabled the remaining nine may render a verdict.

The evidence in the present case reflects an illness in the juror’s family. It further reflects that the trial court ordered the sheriff to bring the juror to the court. The juror was brought to the court, but the trial judge found that she was disturbed and unable to serve as a juror because of the illness of a member of her family. Clearly, therefore, the trial court was within its discretion in excusing the juror. Appellant’s point 7 is overruled.

Appellant in its point 8 attacks the trial court’s refusal to grant a mistrial because of opposing counsel’s use of leading questions. The general rule is that the allowance of leading questions rests generally within the discretion of the trial court. Texas Employers Insurance Association v. Dimsdle, 440 S.W.2d 359 (Tex.Civ.App.— Dallas 1969, writ ref’d n. r. e.); American Surety Company v. McCarty, 395 S.W.2d 665 (Tex.Civ.App. — Austin 1965, writ ref’d n. r. e.). Appellant, therefore, has a twofold burden in showing reversible error based on the use of leading questions: 1) he must show abuse of discretion and 2) that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

A review of the record reveals that all objections by appellant to the leading questions of appellee were sustained and that the trial court instructed the jury that the objections were correct and directed appellee not to ask any further leading questions. This instruction cured any prejudice which could have resulted from counsel’s continuous objections. A further review of the record evidences that the use of leading questions did not probably result in the rendition of an improper verdict. Especially is this so in that objections to leading questions were sustained as to both parties during the course of the trial. Appellant’s point 8 is overruled.

Appellant’s point 22 asserts that the judgment of jury is excessive in that it is not supported by the evidence. In determining if a verdict is excessive, the court must review only that evidence favorable to the verdict and the jury’s determination will not be disturbed as excessive where there is any evidence to sustain it. Hammond v. Stridden, 498 S.W.2d 356 (Tex.Civ.App. — Tyler 1973, writ ref’d n. r. e.) and cases cited therein; Sunset Brick & Tile, Inc. v. Miles, 430 S.W.2d 388 (Tex.Civ.App. —Corpus Christi 1968, writ ref’d n. r. e.); Sumners Road Boring Inc. v. J. O. Thompson, 393 S.W.2d 690 (Tex.Civ.App. — Corpus Christi 1965 writ ref’d n. r. e.). There must be some proof, circumstantial or direct, of bias or prejudice and in the absence of such proof, this Court is required to give every inference to the evidence in favor of the verdict. Hammond v. Stricklen, supra and the cases cited therein; Sunset Brick & Tile, Inc. v. Miles, supra; Sumners Road Boring Inc. v. J. O. Thompson, supra.

James Ramirez, Matías Morin and Raul Reyna, all testified to the pain suffered by plaintiff at the scene of the accident.

Peralez was hospitalized for 57 days. The hospital records for this period show heavy medication for pain and the testimony of Bertha Zavala, an L.V.N., also substantiates the jury’s verdict on pain.

Dallas Clark, Fred Longoria, appellee Peralez, Claudio Castaneda, Pablo Pena and Noe Peralez, all testified to pain presently suffered by the appellee.

Dr. Pechero testified to the permanent nature of appellee’s injuries which included circulatory problems, pain, chronic kidney infection, and limited mobility. Dr. Rios testified on the need for and the cost of plastic surgery. Tom Aycock testified to the consequences of the persistence of pain in the future. Bea Peralez testified to the change in the marital relationship of the parties and the hardship on the family.

Upon admission to the hospital, appellee’s injuries were diagnosed as a shattered hip, broken and separated clavical bone, three to four cracked ribs, and collapsed lung. His vital signs at that time were critical. The testimony of the plaintiff was cumulative of the previously mentioned testimony and is exemplified by his reference to his hospitalization as a “torture chamber”. Dr. Pechero and Tom Aycock testified about appellee’s psychological problems caused by the severe pain suffered and the nature of his injuries.

Dallas Clark testified that the appellee’s present salary as a parole officer for the Texas Youth Council was $12,800.00 per year. Mr. Clark further testified that ap-pellee’s pain interfered with his job and that he often found the appellee at home because of pain during working hours. Claudio Castaneda also testified that the plaintiff was often unable to work because of his injuries.

The plaintiff was 40 years old at the time of the accident and his position had a mandatory retirement at age 65. Peralez testified that after his retirement, he had planned to sell real estate. He had earned $1,207.43 from the sale of real estate in 1963 and 1964. Actuary tables showed him to have a life expectancy to 72 years.

Because personal injury damages are unliquidated and not capable of measurement by a certain standard, the jury has large discretion in fixing the amount of the award. Gallegos v. Clegg, 417 S.W. 347 (Tex.Civ.App. — Corpus Christi 1967, writ ref’d n. r. e.); Phillips Petroleum Company v. R. T. Burkett, 337 S.W.2d 856 (Tex.Civ.App. — Fort Worth 1960, writ ref’d n. r. e.). In awarding these damages, the jury is entitled to consider the constant decrease in the value of the dollar. Johnston Testers v. Rangel, 435 S.W.2d 927 (Tex.Civ.App. — San Antonio 1968, writ ref’d n. r. e.); Texas Consolidated Transportation Company v. Eubanks, 340 S.W.2d 830 (Tex.Civ.App. — Waco 1960, writ ref’d n. r. e.). We are of the opinion based on the record as a whole that the amount awarded by the jury is not excessive. Appellant’s point 22 is overruled. Further, appellant’s request for remittitur in point 24 is overruled.

In its point 23, the appellant argues that the judgment below should be reversed because of the cumulative effect of the foregoing errors complained of. For the reasons heretofore set out in our discussion of the foregoing points, we overrule point 23.

The judgment of the trial court is AFFIRMED.


source: Caselaw Access Project

author: KEITH, Justice.

license: Public Domain

text:
    Darlene Ruth BOWMAN, Appellant, v. Phyllis Bowman SIMPSON, Appellee.
    No. 7900.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 6, 1977.
    Rehearing Denied Feb. 3, 1977.

      Andrew C. Brown, Houston, for appellant.
    Stephen Wayne Hanks, Houston, for ap-pellee.
   KEITH, Justice.

The appeal is by the widow of the decedent from a judgment of the probate court finding that two particular items of property constituted assets of the estate.

Fred E. Bowman died intestate leaving as his survivors our appellant, Darlene Ruth Bowman his widow; and Phyllis Bowman Simpson, his daughter by a prior marriage and sole descendant. During the existence of the marriage of the decedent and appellant, they had accumulated a fund approximating $20,000 which was on deposit in an account in Contintental Emsco Federal Credit Union, and a number of valuable coins worth in excess of $12,400 were in a safe deposit box in a bank.

The cause was submitted upon an agreed stipulation of facts which included the following:

As to the Credit Union balance: (1) on November 4, 1963, decedent and his wife executed a “Joint Share Account Agreement” applicable to such deposits, wherein they agreed with each other and with the credit union that “[a]ll sums now paid in on shares, or heretofore or hereafter paid in on shares by [either] of said joint owners to their credit as such joint owners with all accumulations thereon, are and shall be owned by them jointly, with right of surviv-orship”; (2) the parties intended to create joint interests with right of survivorship in and to all deposits made pursuant to such agreement; and (3) the credit union was and is one organized under the pursuant to Title 12, United States Code Annotated § 1751 (1969), et seq.

The safe deposit rental agreement applicable to the box wherein the coins were kept was executed by the decedent and wife on May 29, 1967, contained a Co-Tenancy Agreement providing, in substance:

“[I]t is agreed that each (or either) of the undersigned is the owner of the present and future contents of the box and that in the event of death of any (or either) of the undersigned, the survivors or survivor shall have the right to withdraw said contents.”

The stipulation recites that the parties intended to create joint interests with right of survivorship in the property in such box, and that all sums of money deposited in said box were placed therein pursuant to the agreement.

The stipulation is silent as to any other steps which the decedent and his wife may have taken in their efforts to create a joint tenancy in and to the funds and coins with a right of survivorship. Under the rule governing review of agreed cases, we are not permitted to draw any inference or find any fact not embraced in the agreement unless as a matter of law such further inference or fact is necessarily compelled by the evidentiary facts agreed upon. Brown v. International Service Insurance Company, 449 S.W.2d 491, 492 (Tex.Civ.App. — Beaumont 1969, writ ref’d n. r. e.), and cases therein cited.

Appellant’s first point of error is based upon an amalgam of three diverse elements: She argues that the Supremacy Clause of the federal constitution (Art. VI, Cl. 2) makes a federal statute [12 U.S.C.A. § 1759 (1969)] operative in Texas under the rationale of Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962). Thus, appellant contends that since the federal statute permits the use of joint tenancy agreements with right of survivorship, it is supreme in the field and governs shares (deposits) in federal credit unions. We find no merit in the contention, and the point is overruled.

A well-written opinion by the Supreme Judicial Court of Maine faced the precise question now urged by appellant and rejected the contention after reviewing the legislative history of the federal statute. We follow DiPierro v. Dudley, 317 A.2d 824, 827-828 (Maine Sup.Ct.1974), where it was held:

“We thus conclude that the amendment to Section 1759 in 1946 was not intended to create a type of joint tenancy which would contravene state law but only to place the various federal credit unions in a position of competitive equality with other banking institutions serving the same geographical areas.”

Free v. Bland, supra, is readily distinguishable from the facts in the case at bar. The survivorship provision relating to savings bonds issued by the United States Government prevails over State law because it is an integral part of the exercise of federal power, and directly involves the interests of the Federal government as a borrower. This is made abundantly clear by two short excerpts which we take from Free v. Bland, supra:

“Article I, § 8, Clause 2, of the Constitution delegates to the Federal Government the power ‘[t]o borrow money on the credit of the United States.’ Pursuant to this grant of power, the Congress authorized the Secretary of the Treasury, with the approval of the President, to issue savings bonds in such form and under such conditions as he may from time to time prescribe . . ..” (369 U.S. at 666, 82 S.Ct. at 1092).
******
“The success of the management of the national debt depends to a significant measure upon the success of the sales of the savings bonds. The Treasury is authorized to make the bonds attractive to savers and investors. One of the inducements selected by the Treasury is the survivorship provision, a convenient method of avoiding complicated probate proceedings.” (369 U.S. at 669, 82 S.Ct. at 1093).

In this instance, the dispute is wholly between two individuals, and the rights of the federal government are in no manner involved. See Bank of America National Trust and Savings Association v. Parnell, 352 U.S. 29, 33, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956). The Supreme Court, in Free, supra, recognized that state law will control in cases where the litigation is between two private parties (as in Parnell, supra) and does not “intrude upon the rights and duties of the United States.” (369 U.S. at 669, 82 S.Ct. at 1094). Point of error number one is overruled.

We quote appellant’s second point of error:

“The trial court committed reversible error by refusing to recognize the surviv- or’s ownership of property located in a safe deposit box the contents of which were controlled by a joint tenancy with right of survivorship agreement.”

The appellant-widow argues that the decision in Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565 (1961), as explained in Williams v. McKnight, 402 S.W.2d 505 (Tex.1966), along with the adoption of Tex. Family Code Ann. § 5.42 (1975), authorized the creation of a joint tenancy with right of survivorship by the single simple act of signing the bank form governing the safe deposit box. We disagree and overrule such point of error.

The Supreme Court, in Hilley, supra, held that as to separate property, the spouses could create a joint tenancy between them with right of survivorship. But, as pointed out in Williams v. McKnight, supra:

“When the property is initially community, it must be rendered separate by statutory partition before survivorship rights arise from a joint tenancy agreement between husband and wife.” (402 S.W.2d at 507) (Emphasis added)

This is, necessarily, a two-step procedure: First, the partition of the community property must be effected in accordance with the provisions of Tex. Family Code Ann. § 5.42 (1975); then, after such partition has been effected, the joint tenancy agreement with right of survivorship may be entered into. We have no indication that the first step was ever taken in this case.

Appellant seemingly recognizes that a two-step proceeding is required but argues that the agreement (safe deposit signature card) effected a partition while simultaneously creating a right of survivor-ship. This argument was rejected in Williams v. McKnight, supra (402 S.W.2d at 508), and is rejected here.

The judgment of the probate court finding that the money on deposit with the federal credit union and the safe deposit box was properly included in the estate of the decedent was correct and is affirmed.

AFFIRMED.

STEPHENSON, J., not participating.

      . See Williams v. McKnight, 402 S.W.2d 505, 508 (Tex.1966). See also, Texas Family Law (Speer’s 5th Ed., Simpkins, 1976) § 22.17, pp. 448^50.

      . The federal statute noted, insofar as material to this case, reads: “Shares [connoting membership in a Federal credit union] may be issued in joint tenancy with right of survivorship with any persons designated by the credit union member, but no joint tenant shall be permitted to vote, obtain loans, or hold office, unless he is within the field of membership and is a qualified member.”

      . It was the 1946 amendment to the basic statute which permitted such unions to issue shares in joint tenancy with a right of survivor-ship. Historical note following 12 U.S.C.A. § 1759 (West 1969, p. 17). Later amendments to § 1759 did not affect this language added in 1946.


text:
    Margaret Nelson FOUNTAIN, Appellant, v. Carl O. NELSON, Jr., Appellee.
    No. 7904.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 6, 1977.

      Murray L. Lieberman, Houston, for appellant.
    Michael S. Thorne, Houston, for appellee.
   KEITH, Justice.

Margaret Nelson Fountain, our appellant, has perfected her appeal from a judgment of the Juvenile Court of Harris County which, among other things, modified a former decree governing the custody of a minor child.

On September 26, 1972, a divorce decree was entered in the Juvenile Court of Harris County (Cause No. 914,418) and appellant was appointed managing conservator of the minor child born to the parties (Carl 0. Nelson, III, hereinafter “Trey”). The order named appellee, Carl 0. Nelson, Jr., posses-sory conservator of Trey and permitted specific weekend and summer visitation as well as holiday visitation. It further provided for additional visitation “ ‘at such other times as is mutually agreeable between the parties.’ ”

Appellant subsequently moved to Durant, Oklahoma; and, according to appellant’s version of the matter, she permitted appel-lee liberal visitation periods during the summer of 1975 to make up for his lack of visitation during the coming school year beginning shortly after August 20, 1975.

On April 25, 1975, appellee filed his motion to modify the prior parent-child relationship under the provisions of Tex. Family Code Ann. § 14.08. Other than concluso-ry allegations, the only factual basis for such relief is that the appellant-mother had voluntarily left Trey with him for a total period of sixty-three weeks since the entry of the decree and that she was contemplating a move from Oklahoma to Florida. This suit bore Cause No. 1,023,606.

Our record does not show when, if ever, service was had upon appellee’s motion to modify the relationship. On or about September 2, 1975, appellant filed her petition for the writ of habeas corpus, alleging that she was the managing conservator of said child by virtue of the unmodified earlier divorce decree; that while appellant had obtained possession of the child by agreement, he refused to permit the child to return to its mother (appellant) so that he could be placed in school in Oklahoma. She sought the entry of an order directing ap-pellee to deliver such child to her in accordance with the prior decree. Upon presentation to the court, a show cause was ordered commanding the production of the child on September 29, 1975.

Apparently, appellee caused service to be had upon his motion to modify since appellant filed, on September 15,1975, a general denial followed by a plea in abatement invoking the provisions of Tex. Family Code Ann. § 14.10.

According to the recitals in the decree, appellant’s petition for the writ of habeas corpus was denied, and all pending proceedings were consolidated into appellee’s proceeding seeking modification of the parent-child relationship.

This proceeding was tried to a jury which was unable to agree and a mistrial was declared. Subsequently, the parties agreed that the trial judge could consider the evidence offered in the jury trial and render judgment. This was done and the appellant-mother was denied all relief while the appellee-father procured the entry of a judgment appointing him managing conservator of the child, fixing appellant’s visitation rights, etc., from which she has appealed asserting a multitude of errors in nine points.

In her first point of error, appellant contends that she is entitled to a reversal of the judgment and a remand of the cause because the trial court did not file findings of fact and conclusions of law after due request was made. We find no merit to this point.

Judgment was entered following a non-jury trial, on May 6, 1976, and appellant filed her request for findings of fact and conclusions of law the next day. Thereafter, on June 7, 1976, she filed her second request for such findings and conclusions; but, our record shows only that the second request was filed with the clerk and was placed among the papers in the cause and is included in our transcript.

There is no showing that this second request was called to the attention of the court, as required in Tex.R.Civ.P. 297. The language in the rule relating to the second request requires that the demanding party “call the omission to the attention of the judge” and it has been held: “The mere filing of a request with the clerk does not satisfy the statute.” Ross v. Odom, 88 S.W.2d 1053 (Tex.Civ.App.—Austin 1935, no writ), construing the predecessor statute. This language was quoted with approval in Birdwell v. Pacific Finance Corp., 259 S.W.2d 957, 958 (Tex.Civ.App.—Dallas 1953, no writ), construing the present rule. See also, Dicker v. Security Insurance Company, 474 S.W.2d 334, 335 (Tex.Civ.App.—Waco 1971, writ ref’d n. r. e.); Zamba v. Zaruba, 498 S.W.2d 695, 697-698 (Tex.Civ.App.— Corpus Christi 1973, writ dism’d).

We find in our transcript an instrument labeled “Bill of Exceptions” which recites the facts set out earlier, that is, the filing of the original request and of the second request and that no action was taken on either request. This instrument recites that appellant excepted to the omission and concludes: “It is REQUESTED that the foregoing bill of exceptions be approved” and is signed by appellant’s counsel. The certificate of service shows that adverse counsel received a copy thereof, but there is no showing that the trial judge ever saw the instrument or had knowledge of its filing.

A bill of exception properly prepared and placed of record will serve to preserve the error. Spradlin v. Rosebud Feed & Grain Co., 294 S.W.2d 301, 302 (Tex.Civ.App.—Waco 1956, writ ref’d n. r. e.); Parkview General Hospital, Inc. v. Ashmore, 462 S.W.2d 360, 369-370 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.).

But, an examination of the instrument shows that it fails to comply with the provisions of Tex.R.Civ.P. 372 relating to bills of exception. In Goodpasture v. Coastal Industrial Water Authority, 490 S.W.2d 883, 885 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.), the Court refused to consider a similar bill, saying: “A bill of exceptions that is not approved by either the trial judge or opposing counsel, and is not a bystanders’ bill, presents nothing for appellate review.” (citations omitted) So it is here and point one is overruled.

Appellant’s second point of error reads:

“That the trial court committed error in failing to grant the Appellant’s application for Writ of Habeas Corpus and ordering a return of the child to the Appellant pending a trial on the merits of Appellee’s motion to appoint him managing conservator.”

We agree and reverse the judgment of the court below and direct the entry of an order granting the writ of habeas corpus and delivery of said child to appellant.

Although the judgment in this cause was entered on May 6,1976, the statutory provisions governing the disposition of appellant’s motion for the writ of habeas corpus were plain long before that date. Several weeks after the entry of the judgment in this cause denying appellant’s application for the writ of habeas corpus, Justice Pope spoke for a unanimous court in Standley v. Stewart, 539 S.W.2d 882, 883 (Tex.1976), saying:

“The Legislature in its enactment of the quoted section [§ 14.10, Family Code] had as its purpose the avoidance of the kind of procedure employed by the court in this case. The former use of the habe-as corpus in child matters opened anew the question of the best interest of the child and permitted the readjudication of the right to possession. The use of habe-as corpus as a vehicle for redetermination of the right to possession was precisely what the Legislature intended to change. [citations omitted] The Legislature intended to demand obedience to existing court orders and to compel that obedience by habeas corpus proceedings. Section 14.10(b) provides that a modification of an outstanding order should not be entertained in a habeas corpus action except in two instances which do not here exist.” (emphasis supplied)

It is clear and certain that the trial court erred in refusing to order the peremptory return of the child to appellant and further erred in entertaining appellee’s motion to modify the parental relationship after denial of the application for the writ of habeas corpus.

The trial court, in this instance, has accomplished what is clearly contrary to the statutory wording, a reinstatement of the practice of sponsoring “a race to the courthouse by the non-possessory local parent seeking to use the recent presence of child in this state as the means to relitigate the issue adjudicated by the court of another state.” In Interest of Kamont, 537 S.W.2d 86, 89 (Tex.Civ.App. — Amarillo 1976, writ ref’d n. r. e.).

We consider Standley and Kamont dis-positive of the question now presented. So holding, we reverse the judgment denying the application for the writ of habeas corpus and direct the trial court to enter such order unless its jurisdiction is invoked by a pleading under subsection (c), § 14.10, Tex. Family Code Ann.

We do not find it necessary to consider the remaining points brought forward by appellant.

REVERSED and REMANDED with instructions.

STEPHENSON, J., not participating.


text:
    Frank O’Neal ADDINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 7910.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 6, 1977.
    Rehearing Denied Feb. 1, 1977.
    Martha L. Boston, Austin, for appellant.
    Charles T. Lambert, Asst. Criminal Dist. Atty., Galveston, for appellee.
   KEITH, Justice.

This is an appeal from an indefinite commitment of the appellant to the Austin State Hospital under the provisions of See. 52 (b) of the Texas Mental Health Code, Tex.Rev.Civ.Stat.Ann. Art. 5547 (1958).

The fact structure of the case which we review is almost a mirror image of the facts recited by Justice Shannon in the opinion in Turner v. State, 543 S.W.2d 453 (Tex.Civ. App. — Austin, application pending). For this reason, we omit any factual resume underlying the single question which we will confront in this opinion.

Appellant has vigorously urged, in the brief and in oral argument, that the trial court erred in overruling his objection to the charge because it did not require the State to prove the factual basis for the confinement beyond a reasonable doubt. Just as in Turner, supra, the Court submitted such issues requiring the State to establish its right to affirmative answers thereto only by “clear and convincing” evidence.

We are in complete agreement with the rationale and the result reached in Turner, and do not find it necessary to write further on the question. In making this determination, we fully realize that the Tenth Court of Civil Appeals has held to the contrary. See Powers v. State, 543 S.W.2d 194 (Tex.Civ.App. — Waco 1976, application pending).

There are other points brought forward; but, until we have an authoritative answer to the question of the quantum of proof required, we do not deem it either advisable or necessary to pass upon them.

The judgment of the trial court is reversed and the cause is remanded.

REVERSED and REMANDED.

STEPHENSON, J., not participating.


author: WALTER, Justice.

text:
    ABILENE STATE SCHOOL and Texas Department of Mental Health & Mental Retardation, Appellants, v. Johnie L. SLAUGHTER, Appellee.
    No. 4949.
    Court of Civil Appeals of Texas, Eastland.
    Jan. 6, 1977.
    Rehearing Denied Jan. 27, 1977.

      Jack Sparks, Austin, for appellants.
    William S. Perry, Joanne Strauss, Robinson, Hanna, Chappell, Burke & Moore, Inc., Abilene, for appellee.
   WALTER, Justice.

Johnie L. Slaughter recovered a judgment against Abilene State School and Texas Department of Mental Health and Mental Retardation for $49,300.00 as damages for personal injuries sustained in a tractor accident.

The defendants have appealed, contending the School District is not liable since the tractor was not a motor vehicle under the terms of the Texas Tort Claims Act.

Art. 6252-19, Sec. 3, Texas Tort Claims Act, Liability of Government Units is as follows:

“Sec. 3. Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, and it shall not extend to punitive or exemplary damages. Liability hereunder shall be limited to $100,000 per person and $300,000 for any single occurrence for bodily injury or death and to $10,000 for any single occurrence for injury to or destruction of property.”
“Application to school and junior college districts
Sec. 19A. The provisions of this Act shall not apply to school districts or to junior college districts except as to motor vehicles.”

Slaughter and Gary Garner were spraying pecan trees at the school on June 14, 1973, when Slaughter was injured. Slaughter filled a 55-gallon barrel, which was attached to the tractor, with water. While he was in the act of “poking the hoses back in the barrel,” the tractor started moving. Slaughter instructed Garner “cut it off, it was in reverse . . . when he, I guess, instead of catching the switch, he caught the gas, and it just jumped back and the axle hit me right in the back.”

The personnel director of the school testified the tractor involved in the accident was used only on the premises of the school. He said:

“I know of no tractors that have a license plate on them. They have a triangle, with a warning sign that it is a slow-moving vehicle. That is on the back of the tractor.”

The evidence discloses the school maintains a cemetery and some property at Fort Phantom Lake each some distance from the school. The witnesses did not recall the tractor involved in this accident being used off the school premises at these sites, but testified their International tractor had been used at these places.

Abilene State School is an independent school district under the laws of the State of Texas. Insofar as this school district is concerned, the State has waived sovereign immunity only for damages resulting where a motor vehicle is involved. The School contends the 1953 John Deere farm tractor involved in this accident was not a motor vehicle within the meaning of the statute and that Brookshire v. Houston Independent School District, 508 S.W.2d 675 (Tex.Civ.App. — Houston (14th Dist.) 1974, no writ) supports its contention.

Is a tractor a “motor vehicle” as that term is used in Section 19A of the Texas Tort Claims Act? The act does not contain a definition of the term “motor vehicle”.

In the Brookshire case the court held a forklift, powered by electric batteries, used to move and stack merchandise in the warehouse was not such a motor vehicle.

One of the cases relied upon by Slaughter is Davis v. National Casualty Co., 142 Tex. 29, 175 S.W.2d 957 (1943). The court was considering an accident policy insuring the claimant against death or dismemberment resulting from bodily injury. The claimant was woVking for a rig-building contractor moving a derrick over a public highway. The derrick was being pulled on rollers by a tractor. While carrying the rollers to the front end of the derrick, his foot was caught under a roller and his foot was crushed and later amputated. The court held:

“It is our opinion that the contrivance or device by which petitioner was struck was a ‘vehicle’ within the ordinary meaning of the word. The tractor, the derrick and the rollers under the derrick, taken together, were a device or instrumentality assembled and used to transport the derrick from one place to another. The vehicle thus formed was propelled by the gasoline used in the tractor’s motor. We give no importance to the fact that the rollers were not attached to the derrick

The court considered the Davis v. National Casualty Co. case, supra, in its opinion in Brookshire v. Houston Independent School District, supra, and said:

“Appellant relies upon Davis v. National Casualty Co., 142 Tex. 29, 175 S.W.2d 957 (1943), which involved the definition of ‘motor vehicle’ in an insurance policy according to its ordinary import. There a caterpillar tractor was pulling an oil derrick on rollers over a public highway. The Supreme Court observed that the statutory definitions of ‘vehicle’ in Articles 6675a and 6687b were ‘substantially the same’ as the definitions found in the cases when that term is given its general and ordinary meaning. The Court held that the tractor together with its derrick was a ‘vehicle,’ but nothing said therein conflicts with this Court’s holding, since the tractor was obviously designed to be driven at times on the public highway and was actually so employed at the time of the accident . . . ” (Emphasis added)

In International Insurance Company in New York v. Hensley Electric Steel Company, Inc., 497 S.W.2d 64 (Tex.Civ.App.— Waco 1973, no writ), the court said:

“We think the plain, ordinary, and generally accepted meaning of the word ‘motor vehicle’ is a self-propelled vehicle designed for, intended to be used for, or actually used to transport persons and property over roads or highways.”

We hold the tractor involved in this accident is a motor vehicle within the meaning of Section 19A of the Texas Tort Claims Act.

We find no merit in appellants’ point they are not liable under the fellow-servant doctrine.

Appellants contend the School is not liable to one servant for injuries caused by the negligence of another servant where both are engaged in a common employment or enterprise. The Texas Tort Claims Act provides to the contrary. It provides as follows:

“ . . . Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, . . .

We sustain appellants’ point the court erred in admitting the testimony of Dr. Krege who testified by deposition.

Dr. Krege, an orthopedic surgeon at Lackland Air Force Base, testified substantially as follows:

“I am licensed to practice medicine in Georgia and Florida, but not in Texas. I examined Johnie L. Slaughter one time on September 26, 1975 and obtained from him a history of his accident and the injuries he received. He complained of pressure pain in the upper back and frequent pain in the low back as well as both groin areas. He further complained of intermittent right shoulder discomfort and frequent aching in the left ankle. After I had received this history, I examined him.”

The witness was asked this question by Slaughter’s attorney:

“Doctor, assuming the truth of the history which you obtained from Mr. Slaughter, upon your examination — that is, that on June 14, 1973, that while working as an employee of the State of Texas, that he was injured by being struck by a tractor tire several times, and, also, as some of your findings from X-rays, and your findings from your physical examination of him, do you have an opinion, based upon a reasonable degree of medical probability, as to whether or not the condition that you found to exist and which you have explained to the jury, was a direct result of being injured by that tractor on June 14, 1973?”

The witness was permitted to answer the question.

At another point, the doctor was asked:
“Q From your physical examination of Mr. Slaughter, and your discussion with him, do you have an opinion as to whether or not the condition of his body, with regard to his pelvic area, sacroiliac area, would be causing him some pain?
A Yes. At the time of history and examination, I felt that the man did definitely have a problem in this area.
Q Doctor, is this something that is going to be with him for the rest of his life?
A Yes, but it might be modified with treatment.
Q Now, have you seen Mr. Slaughter other than the one time?
A I did not. One time.
Q And the only time you saw him was on September 26, 1975?
A That’s right.
Q At that time, did you prescribe any treatment for Mr. Slaughter?
A No, I did not.
Q Did you examine him solely for the purpose of giving your opinion as to his condition?
A Yes.”

In Pacific Employers Insurance Company v. Gibson, 419 S.W.2d 239 (Tex.Civ.App.— Dallas 1967, no writ), the court said:

“The rule of law governing this situation is firmly established in our jurisprudence and is set forth in 63 Tex.Jur.2d § 447, p. 483, as follows:
‘A doctor who is not a treating physician, and who examined the patient only for the purpose of making a report and testifying if necessary, cannot base his opinion as to the condition of the patient on the history of the case as related to him by the patient. It must be based on a study of objective symptoms and X rays.’
The rationale of this rule was developed many years ago and was clearly enunciated by the court in Gaines v. Stewart, 57 S.W.2d 207 (Tex.Civ.App., Austin 1933), which involved a case in which the doctor examined the injured party not for treatment but to enable him to testify as a witness. The court in holding the doctor’s opinion testimony inadmissible said:
‘The test in such ease appears to be whether the motive and opportunity to fabricate without detection the symptoms complained of is presented. Undoubtedly a qualified physician can testify as to symptoms and conditions of injury or disease made known to or discovered by him in his treatment of his patient. Or to such conditions as he finds in the patient from his own independent examination of him. But where an injured party, for the express purpose of qualifying a physician to testify in his behalf about matters on which such party seeks a recovery, makes statements as to subjective matters of pain, suffering, etc., not disclosed to the physician by other and independent means, there exists both motive and opportunity for the patient to magnify or feign injuries. Under such circumstances his statements become clearly self-serving and hearsay, and should not be admitted.’

Again, Justice Leslie of the Eastland Court of Civil Appeals in Texas Employers’ Ins. Ass’n v. Wallace, 70 S.W.2d 832 (Tex.Civ.App., Eastland 1934), expressed the reasoning behind the rule which prohibited the testimony of the examining physicians, as follows:

‘We are of the opinion that the foregoing testimony, admitted over said objections, was inadmissible. The doctor’s opinion was based in some undetermined measure, and in part, at least, upon hearsay statements made to him by the injured employee. It is a sound rule of law which prohibits the introduction of such testimony. The opinion of an expert should not be permitted to go to a jury when the same is predicated in whole or in part, upon the un-sworn statement of an interested party who may be tempted to unduly magnify the basis or grounds upon which the validity of the opinion depends

Proper objections were made to Dr. Krege’s testimony and we hold the court erred in admitting such testimony.

The judgment of the trial court is reversed and the cause is remanded.


text:
    In the Matter of I. J., Jr.
    No. 4940
    Court of Civil Appeals of Texas, Eastland.
    Jan. 6, 1977.

      Timothy Ann Sloan, Law Office of Richard C. Abalos, Odessa, for appellant.
    Robert H. Moore, III, Dist. Atty., Big Spring, for appellee.
   WALTER, Justice.

Jurisdiction over I. J., Jr. was waived by the Juvenile Court and jurisdiction was transferred to the District Court of Howard County, Texas, for criminal proceedings. I. J., Jr. was charged with a felony if committed by an adult. I. J., Jr. has appealed.

In the juvenile certification proceedings, the State is not required to establish the issues beyond a reasonable doubt. Claunch v. Page, 10 Cir., 427 F.2d 841 (1970).

We find some evidence of probative force to support the court’s order waiving jurisdiction and transferring the cause to the district court for criminal proceedings.

We have considered the entire record and hold the findings in the transfer order are not against the great weight and preponderance of the evidence.

Appellant contends Section 54.02, Title 3, Texas Family Code is unconstitutional because the caption of the bill embodying this section is insufficient to meet the constitutional demands of Article 3, Section 35 of the Constitution of Texas. We wrote on this point in In re W. R. M., 534 S.W.2d 178 (Tex.Civ.App. — Eastland 1976, no writ) and said:

“Appellant asserts that Section 54.02, providing for waiver of jurisdiction and transfer to criminal court, violates Article III, Section 35, of the Texas Constitution, that no bill shall contain a subject not expressed in its title. The caption of Title 3 of the Texas Family Code provides:
‘An Act adopting Title 3 of the Family Code, relating to delinquent children, children in need of supervision, and children with mental illness, retardation, disease, or defect; providing procedures for courts, officers and other persons, and agencies and institutions, dealing with such children; placing limitations on public access to hearings and records concerning juveniles; containing other provisions for their protection, care, or rehabilitation; amending Article 30, Penal Code of Texas, 1925, as amended, to conform with Title 3; . .’ (emphasis added)
Our Supreme Court in Robinson v. Hill, 507 S.W.2d 521 (Tex.1974) said:
‘Both the constitutional provision and the questioned statute are to be liberally construed in favor of constitutionality . . Art. Ill, Sec. 35, requires only that the title state the general subject; it need not explain the details
The caption adequately stated that the statute contained court procedures relative to delinquent children. We hold that appellant has failed to show a violation of Article III, Section 35, of the Texas Constitution.”

We have considered appellant’s points asserting Section 54.02, Title 3, Texas Family Code is unconstitutional under the State and United States Constitution and find no merit in them. They are overruled.

In Robinson v. Hill, 507 S.W.2d 521 (Tex.1974), the court at page 524 said:

“In passing upon the constitutionality of a statute, we begin with a presumption of validity. It is to be presumed that the Legislature has not acted unreasonably or arbitrarily, and the burden is on one who challenges an act to establish its unconstitutionality.”

We hold appellant has not discharged his burden of establishing the act is unconstitutional.

We have considered all of appellant’s points and find no merit in them. They are overruled. The judgment is affirmed.


author: REYNOLDS, Justice.

text:
    AMERICAN BIOMEDICAL CORPORATION, Appellant, v. John H. ANDERSON, Appellee.
    No. 8732.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 10, 1977.
    Woodburn & Sullivan, William C. Wood-burn, Dallas, for appellant.
    James S. Robertson, Jr., Dallas, for appel-lee.
   REYNOLDS, Justice.

For its breach of a written employment agreement, American Biomedical Corporation was adjudged liable to John H. Anderson in the sum of $23,103, together with pre-judgment interest, representing Anderson’s unpaid salary, less his earnings from other sources during the remainder of the primary term of the agreement. The ultimate questions are whether the agreement was terminated by Anderson’s acceptance of new and independent employment or by release. We agree with the trial court’s determination that the agreement was not terminated. Affirmed.

This litigation grew out of Anderson’s association with American Biomedical Corporation, American Medical Computer Centers, Inc., and Medical Computer Systems, Inc., which, for brevity, will be referred to as ABC, AMCC and MCSI, respectively. ABC, which provides medical laboratory, biomedical and computer services to the public directly and through wholly owned subsidiaries, formed AMCC, a wholly owned subsidiary, to acquire the assets of Health Management Systems, the president of which was John H. Anderson. The acquisition was on 27 December 1968 and on the same day ABC, being also interested in securing Anderson’s personal services, entered into a written employment agreement with Anderson. The agreement was for a term of five years beginning 1 January 1968 and provided that for the annual sum of $35,000 Anderson shall perform “such duties as may be assigned to him from time to time by, and subject to the supervision and control of, the Board of Directors of Employer (ABC) or the chief executive officer thereof,” with an initial assignment to AMCC as president. The agreement has no provision for its assignment.

A few months after Anderson assumed the presidency of AMCC, he became a member of the board of directors of the parent company, ABC, reporting to Clinton Howard, President and Chairman of the Board of ABC, and to Gifford Johnson, Executive Vice President of ABC. During the early fall of 1969, while Anderson was a member of the board of directors and attending meetings, it was made known to ABC’s board that AMCC had an appetite for money to fund its development that ABC was finding difficult to meet. AMCC had begun to owe ABC sizeable sums of money at an increasing monthly rate of from $40,000 to $50,000. After several meetings of ABC’s board of directors and executive committee, it was concluded in December, 1969 to sell AMCC to MCSI. Prior to the sale, there was a telephone conversation between Gifford Johnson of ABC in Dallas and Anderson of AMCC in Chicago. Anderson was informed of ABC’s intent to sell AMCC to MCSI, and there was a discussion of the funding of AMCC and MCSI’s desire that Anderson continue as AMCC’s president.

The sale was effected 31 December 1969. Following the sale, ABC owned the second largest number of outstanding shares of MCSI stock, and Howard and Johnson of ABC became directors of MCSI. On 8 January 1970, ABC, acting through Howard, and MCSI, acting through its president James H. Foster, Jr., executed a letter of agreement. One of its provisions read that ABC assigns all of its right, title and interest in its employment agreement with Anderson and will cause Anderson to consent to the assignment. Anderson denied knowledge of the letter of agreement until this litigation commenced and stated that he was not asked to and did not consent to the assignment of the employment agreement.

After the sale, Anderson’s duties with AMCC did not change, but he began reporting to Foster, MCSI’s president, and no longer reported to either Howard or Johnson. Anderson was paid by AMCC payroll checks, routinely processed and mailed from Dallas, which were signed by Howard prior to 1 January 1970 and afterwards by Foster.

On 29 March 1970, Anderson was elected to the position of Chief Operating Officer and Executive Vice President of MCSI at an increased salary of $40,000 per annum, which was to be inclusive of all salaries paid to Anderson by either AMCC or MCSI. Anderson testified that Gifford Johnson “went out of his way” to congratulate him on the job he was doing at MCSI so that “we would have a possibility of surviving in the corporation.”

On or about 1 February 1972, Anderson was asked by MCSI to resign his duties with AMCC and MCSI. He refused to sign a prepared instrument stating that his employment agreement was terminated when he agreed to become Executive Vice President of MCSI. He did sign an agreement dated 8 February 1972 in which it was stated that he resigned as of 1 February 1972 and that MCSI agreed to pay Anderson his normal monthly salary of $3,333 for three months ending 30 April 1972 conditioned upon his availability for consultation during that period. By that agreement, MCSI and its subsidiary released Anderson of any and all claims and Anderson released “MCSI and its subsidiary from any and all claims he may have against them, including but not limited to the written contract dated December 27, 1968 with regard to American Biomedical Corporation.” It was Anderson’s testimony that at the time he signed the release he had no knowledge of ABC’s assignment of his employment agreement to MCSI and no reason to believe that an assignment had been or was to be made.

About 2 or 3 May 1972, Anderson informed Clinton Howard, ABC’s president, that he was ready to accept a new assignment under his employment agreement with ABC. Howard responded that ABC had no obligation under the agreement to Anderson. Thereafter, Anderson received a 7 March 1973 letter from Gifford Johnson, ABC’s Executive Vice President and director, stating that ABC was relieved of further obligation under Anderson’s employment agreement because ABC had assigned it to MCSI and Anderson accepted the assignment by going to work for MCSI.

Trial was before the court. Judgment was rendered 27 October 1975 decreeing that Anderson recover from ABC the sum of $23,103 with pre-judgment interest.

The trial court made and filed findings of fact, numbered among which are these: (10) Anderson was neither notified of ABC’s assignment of the employment agreement nor asked to accept MCSI as his employer in substitution for ABC; (11) after the sale of AMCC to MCSI, Anderson continued to perform the same duties; (12) Anderson’s election as Executive Vice President and Chief Operating Officer of MCSI, as well as president of AMCC, at an annual salary of $40,000 was inclusive of all salaries paid him by either AMCC or MCSI; (13) at the time Anderson became Vice President of MCSI, he had no reason to believe the employment agreement would be terminated by his acceptance of the position; (19) at the time of the 8 February 1972 release, Anderson had no knowledge of, nor any reason to believe, that an assignment had been or was to be made; (22) ABC’s 29 March 1973 notification was the first notice Anderson had of the assignment; and (25) Anderson performed all duties assigned to him under the employment agreement, he did not give ABC any cause to terminate it, and he was ready, willing and able to perform under the agreement for the remainder of its term.

The court filed, among others, these conclusions of law: (2) Anderson neither directly nor indirectly consented to ABC’s assignment of the employment agreement; (3) Anderson did not after first learning of the assignment, ratify it; (4) he did not consent to the substitution of MCSI for ABC as the employer in the agreement; (5) his acceptance of the position of Executive Vice President and Chief Operating Officer of MCSI did not constitute such a new and independent employment that resulted in termination of the employment agreement; (6) the agreement continued in effect and bound ABC for its term; (7 & 8) ABC’s failure to offer employment to or to pay Anderson during the remainder of the term after termination of his services for AMCC or MCSI constituted a breach of the agreement for which ABC is liable in damages; (9) Anderson’s damages are $23,103; (11) the 8 February 1972 release was not a release by Anderson of any obligations of ABC to him under the agreement; and (12) Anderson is not estopped to enforce the employment agreement.

ABC attacks the judgment with eight points of error. The first six points, which are grouped into pairs in the statement and restatement are here quoted verbatim:

POINTS OF ERROR NOS. 1 and 2
Appellee Anderson knew or should have known that his employment agreement was being or had been assigned by Appellant ABC to Assignee MCSI and he thereafter either expressly or impliedly accepted the assignment and acknowledged the Assignee MCSI as his new employer in substitution of Appellant. All findings and rulings of the Trial Court to the contrary were error since there was factually insufficient evidence (Point 1) to support such findings and rulings and the greater weight and preponderance of the evidence (Point 2) does not support such findings and rulings.
POINTS OF ERROR NOS. 3 and 4
The Trial Court’s rulings (CL 3 and 4, Tr. 37) to the effect that Appellee Anderson did not ratify nor consent to the assignment of the employment agreement and the substitution of MCSI for ABC as the Employer under the terms of the employment agreement are in error because they are contrary to the greater weight and preponderance of the evidence (Point 3) and contrary to law (Point 4).
POINTS OF ERROR NOS. 5 and 6
Appellee in accepting new and different full-time employment with Assignee, MCSI, contrary to the terms of the employment agreement, voluntarily terminated the subject employment agreement. All findings of the Trial Court to the contrary were error since there was factually insufficient (Point 5) evidence to support such findings, and because the greater weight and preponderance of the evidence (Point 6) does not support such findings.

Anderson’s sole response to these first six points of error is that they are multifarious and, therefore, insufficient as a matter of law. Rule 418(b), Texas Rules of Civil Procedure. Long established is the principle that a point of error is multifarious when it embraces more than one specific ground of error or when it attempts to attack several distinct and alleged errors or rulings of the trial court. Hudspeth v. Hudspeth, 206 S.W.2d 863, 868 (Tex.Civ.App.—Amarillo 1947, no writ). If so, it is not entitled to consideration, Johnson-Sampson Construction Company v. W & W Waterproofing Company, 274 S.W.2d 926, 930 (Tex.Civ.App.—Amarillo 1953, writ ref’d n. r. e.), unless the point involves only a single legal question. Miller Management Co. v. State, 159 S.W.2d 218, 221 (Tex.Civ.App.—Galveston 1942), aff’d 140 Tex. 370, 167 S.W.2d 728 (1943).

These six points of error, by merely questioning the evidentiary basis of “all findings” and “rulings” of the trial court, offend the principle; nevertheless, following the teaching of O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex.1976), and Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943), we have looked to the arguments to determine, as best we can, the grounds relied upon to show reversible error.

One argument is made in connection with the first four points. Another argument is addressed to points five and six, but it also encompasses point seven which disputes a legal conclusion drawn from a factual finding sought to be set aside under points five and six. It appears from these arguments—which are referenced to points said to be germane to findings numbered 10, 12, 13, 19, 22 and 25, and to conclusions of law numbered 2, 3, 4 and 5—that ABC is complaining of the factual insufficiency of the evidence to support the factual findings that Anderson had no notice of the assignment of the employment agreement, that he had no reason to believe an assignment had been or would be made, that he had no reason to believe the acceptance of the position with MCSI would terminate the agreement, and that Anderson did not give ABC any reason to terminate the agreement. ABC apparently does not argue the verity of the legal conclusions drawn from the factual findings; instead, it argues that the findings being incorrect, it was error to conclude that Anderson neither consented to nor ratified the assignment, or that his acceptance of the MCSI position did not terminate the agreement.

The evidence bearing on the findings was conflicting. It was the province of the trial court, as the judge of the credibility of the witnesses and privileged to accept or reject any part of their testimony, to resolve the conflicts. McGee v. McGee, 537 S.W.2d 94, 97 (Tex.Civ.App.—Amarillo 1976, no writ). With due regard for the trial court’s prerogative, all of the evidence has been reviewed under the guidance of Hall v. Villarreal Development Corporation, 522 S.W.2d 195 (Tex.1976). With respect to the challenged findings, there is some evidence of probative force to support the findings; the evidence in support of the findings is not so weak, or the contrary evidence is not so overwhelming, as to warrant the setting aside of the findings; and the findings are not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Given the validity of the factual findings, the conclusions are not an erroneous application of the law. Edins v. Gunby, 150 S.W. 974, 976 (Tex.Civ.App. — Dallas 1912, no writ).

By assuming the existence of a fact opposite to the one found by the trial court and challenging the court’s “rulings to the contrary,” ABC’s eighth point has some of the vice inherent in its first six points. However, a study of the point and the argument isolates the single question whether Anderson’s 8 February 1972 release of MCSI released ABC as a matter of law from all further liability under the employment agreement.

An executory contract for personal services, as the one here is, cannot be assigned by the employer without his employee’s consent, since everyone has a right to determine with whom he will contract. Spengler v. Pitluk, 261 S.W.2d 470, 471 (Tex.Civ.App. — San Antonio 1953, writ dism’d); Oak Cliff Ice Delivery Co. v. Peterson, 300 S.W. 107, 109 (Tex.Civ.App.— Dallas 1927, no writ). The trial court’s findings that Anderson did not know of, consent to, or ratify ABC’s purported assignment of his employment agreement to MCSI, which we have validated, precluded a valid assignment of the agreement. Anderson’s release of MCSI, which had no obligations under the employment agreement, could not affect ABC’s obligations thereunder. The eighth point of error is overruled.

The judgment of the trial court is affirmed.


author: CURTISS BROWN, Chief Justice.

text:
    Paula EASTEP et vir., Appellants, v. JACK-IN-THE-BOX, INC., Appellee.
    No. 1423.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 12, 1977.
    Rehearing Denied Feb. 2, 1977.

      John W. Turner, Robert A. Berry, Miller, Gann & Perdue, Houston, for appellants.
    Thomas G. Bousquet, Bousquet & McPherson, Houston, for appellee.
   CURTISS BROWN, Chief Justice.

Paula Eastep and her husband, Danny Eastep (the Easteps or appellants), filed suit against Jack-in-the Box, Inc. (appellee) and others to recover damages for injuries received by Paula while at a restaurant owned and operated by Jack-in-the-Box. All defendants other than Jack-in-the-Box were discharged prior to the submission of the case to the jury. The jury answered all liability issues favorably to appellants and found damages. The trial court granted the defendant’s motion to disregard Special Issue 2(l)(a), (b), and Issue 2(2)(a), (b) and (c), and their motion for judgment non ob-stante veredicto. Judgment was entered that the plaintiffs take nothing.

On the night of August 24, 1973, Paula and Danny Eastep, along with Danny’s brothers Lloyd and Kenneth, and Kenneth’s wife, Charlene, went dancing at a local night club. When the club closed they went to a Jack-in-the-Box restaurant near their apartment in Pasadena, Texas, arriving there around 2:00 A.M. They placed their orders and sat down. Shortly thereafter, four men (the McDonalds) entered the restaurant, placed their orders, and also sat down. When the Eastep party’s food was ready, Danny went to the counter to obtain it. As he passed by the McDonald party’s table, they cursed him loudly. Further cursing and obscenities were exchanged between the two tables, whereupon the McDonalds jumped up and at least two of them drew out knives. After several minutes of taunting by the McDonalds, a fight ensued. The two women in the Eas-tep party made their way to one of the restaurant’s exit doors. However, Paula Eastep, apparently seeing her husband in danger of being stabbed or cut by the largest of the McDonalds, went back into the melee and grabbed the aggressor by the hair, pulling him over a table. Having retained the grasp on his knife, this individual got up and began slashing wildly at Paula. She threw up her hands to protect her face and sustained a severe laceration on her right arm. The fight ended a few minutes after Paula was cut, and the police arrived almost immediately thereafter.

In answer to Special Issue No. 1, the jury found that Jack-in-the-Box, acting through its employees were negligent in: (1) failing to demand that the McDonalds leave the premises before the fight began; (2) failing to timely notify the police; and (3) failing to warn the Easteps of the McDonalds’ acts and condition before the fight began. In answer to Special Issue No. 2, the jury found each of the above omissions were a proximate cause of Paula Eastep’s injuries. The jury further found that Paula’s actions were reasonable under the circumstances and did not constitute negligence. The trial court disregarded the jury’s answers to Special Issue No. 2 and entered judgment non obstante veredicto for Jack-in-the-Box.

Appellants’ two points of error assert that the trial court erred in granting appellee’s motion for judgment n.o.v., and in failing to grant appellants’ motion for judgment. A judgment non obstante vere-dicto is sustainable only if there is no evidence upon which the jury could have made the findings relied on. In reviewing such a judgment, we must consider all testimony in the light most favorable to the party against whom it was rendered, and every reasonable intendment deducible from the evidence is to be indulged in that party’s favor. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.Sup.1974); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962).

The owner, of land is under a duty to exercise reasonable care for the safety of his invitees. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.Sup.1975). The weight of authority now recognizes that the duty of a proprietor of a restaurant, inn or similar establishment includes the exercise of reasonable care to protect his patrons from intentional injuries inflicted by third persons. See Annots., 70 A.L.R.2d 628 (I960); 10 A.L.R.3d 619, § 5 (1966); 40 Am.Jur.2d Hotels, Motels, and Restaurants §§ 111, 112 (1968). See also Restatement (Second) of Torts § 344 (1965). Such a duty has been recognized in Texas for owners of public theatres. East Texas Theatres, Inc. v. Rutledge, 453 S.W.2d 466, 469-70 (Tex.Sup.1970); Marek v. Southern Enterprises, Inc., 128 Tex. 377, 99 S.W.2d 594 (1936, opinion adopted). As patrons, appellants were invitees of appellee; therefore, appel-lee owed appellants a duty of reasonable care to protect them from the assaults of third persons while on the premises.

Section 344 of the Restatement (Second) of Torts (1965) states that a possessor of land held open to the public for business purposes is liable for patrons’ injuries that are caused by the intentional acts of third persons and by “the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.” The portion of the rule requiring notice to the possessor that acts of violence are likely to be done

does not require a long and continued course of conduct to find that the proprietor had knowledge of the violent disposition of the other patron — all that is necessary is that there be a sequence of conduct sufficiently long to enable the proprietor to act for the patron’s safety. It is not necessary that the proprietor know of a history of a series of offenses against the peace.

Coca v. Arceo, 71 N.M. 186, 376 P.2d 970, 973 (1962). Accord, Kimple v. Foster, 205 Kan. 415, 469 P.2d 281, 286 (1970).

In the instant case the evidence showed that at the time of the incident there were four or five Jack-in-the-Box employees on duty and eight to twelve patrons present in addition to the McDonalds. Paula Eastep testified that she first noticed the McDonalds because they were talking loudly and banging on the counter where orders are taken. She said that they were acting “weird.” The Easteps’ order was called “two or three minutes” later, after the Mc-Donalds had sat down. It took Danny about a minute to get the food. Paula stated that after Danny came back with their order the McDonalds began shouting obscenities and making obscene gestures at them. After one of the Easteps returned an obscenity, the McDonalds jumped up and drew out their knives. She testified that after the McDonalds got up there was about a two-minute period before any blows were struck, during which time the Easteps were trying to stall off a fight while the McDonalds were hurling epithets, obscenities, and taunts at them. The fight then began, and it was, in her estimation, another two-and-a-half to five minutes before she was cut. She stated that the police arrived four-and-a-half or five minutes after she was cut. Kenneth and Lloyd Eastep also testified that they first noticed the Mc-Donalds when they were “loudmouthing” at the front counter.

Steve Gregg, a patron in the Jack-in-the-Box when the fight started, testified that the McDonalds

were kind of tough acting, you know, like there was a couple of big guys, a couple of medium size guys. They were, looked like they were hopped up on something, a little high or something like that. They come in, sat down and acted kind of tough and slouchy. They were kind of cussing among themselves. I could hear the cussing.

He stated that from the time that the Mc-Donalds entered the restaurant until they sat down was about four minutes. From the time they sat down until they got up and took out their knives was another two or three minutes.

Randall Kimmel, Gregg’s roommate, was also in the Jack-in-the-Box when the fight started. He testified that the McDonalds were talking loud and “looking for trouble, it looked like.” He stated that “I was eating at the time they were up at the counter and I heard them talking to the manager. There was profanity.”

The person in charge of the restaurant at the time of the incident was Ismael Cava-zos, the assistant manager. He testified that when the McDonalds entered the restaurant, he was away from the counter preparing another order. He asked them to “hold on a second,” to which the largest of the McDonalds replied, “Hold on, sh**.” Cavazos stated that this comment was loud enough to have been heard by some of the other patrons. Although he was busy with something else, Cavazos stated that when this abusive language was directed at him, “I got the impression he was in a nasty mood, so I went ahead and hurried and got their order.” He also testified that he thought one of them had a knife or a gun: “He had his hand in his pocket and, you know, when he approached me with that expression of ‘Hold on, hell,’ you know, I thought to myself, well, you know, this guy must be armed or something.” He recalled stating in a deposition that he was “scared [McDonald] was going to start a fight.” Cavazos stated that the McDonalds had red eyes and slurred their words, and that he was “pretty sure” they had been drinking. After he had taken their order, Cavazos said he heard them using other vulgar language.

Cavazos testified that Jack-in-the-Box employees are instructed to ask anyone using profanity to leave, and to call the police if they do not leave. However, he did not ask the McDonalds to leave even after hearing them use vulgar and abusive language, some of which was directed at him.

Cavazos stated that as he was preparing food in the “fry area”, he heard loud noises from the dining room and when he looked, he saw the two groups faced off and the McDonalds’ knives drawn. He testified that his “mind went blank for awhile,” and he did nothing until the fight actually began. He admitted that there might have been time for him to get out in the dining room while the two groups were still just talking. When the fighting did start he said he then told one of the other employees to call the police. However, he also stated that the other employees were more shocked than he was: “They weren’t moving; they were just sitting there . ..”

Cavazos testified that he had called the police to come to that Jack-in-the-Box on many occasions. He said that it took an average of five or ten minutes for them to arrive. He stated that on this particular occasion the police arrived “almost” as the McDonalds were going out the back door.

L. G. Lilleux, a member of the Pasadena Police Department, testified that the police records indicated that on this occasion a call was received by the police department at 2:36, and the police arrived on the scene at 2:39. Cavazos stated that he thought the fighting lasted a total of five or ten minutes. Robert Harrah, another Jack-in-the-Box employee present that night, testified on deposition that he thought the fight lasted ten or fifteen minutes.

We hold that the record contains some evidence of probative value to support the jury findings that appellee, through its employees, was negligent in failing to demand that the McDonalds leave the premises before the fight began, in failing to timely notify the police, and in failing to warn appellants of the acts and condition of the McDonalds before the fight began.

While strongly urging that it owed appellants “no duty” and was not negligent, ap-pellee primarily contends that there was “no evidence” to support the jury’s findings on proximate cause. The elements of proximate cause are: (1) cause in fact, and (2) foreseeability. We believe the evidence outlined above is sufficient to show the presence of the element of foreseeability. The question narrows, then, to whether the negligent acts of appellee’s employees were a cause in fact of Paula Eastep’s injury. “[Wjhether a particular act of negligence is a cause in fact of an injury has been said to be a particularly apt question for jury determination.” Farley v. M M Cattle Co., 529 S.W.2d 751, 756 (Tex.Sup.1975). See also Biggers v. Continental Bus System, Inc., 157 Tex. 851, 303 S.W.2d 359 (1957).

In the instant case the time sequence of the particular events is crucial. Steve Gregg estimated that the length of time that the McDonalds were in the restaurant before they jumped and drew out their knives was a total of six or seven minutes. Randy Kimmel estimated this period to be five minutes. Paula and Lloyd Eastep estimated that there were two minutes between the time the McDonalds jumped up and the actual beginning of the fight. Danny estimated this time as two or three minutes. From the time the fight started until Paula was cut was estimated by Kim-mel to be three or four minutes. Danny estimated this period to be two or three minutes, and Paula’s estimate varied between two-and-a-half and five minutes. Danny estimated that the fight ended from one to three minutes after Paula was cut. Cavazos stated that the police arrived “right after” the fight ended, almost as the McDonalds were going out the back door.

The total length of time of the fight was estimated by Danny to be two to four minutes, by Kenneth Eastep to be four or five minutes, by Cavazos to be five or ten minutes, and by Robert Harrah to be ten or fifteen minutes. As noted previously, police records showed that the police arrived three minutes after they were called. Ca-vazos, who took the McDonalds’ orders, had notice of their condition and conduct soon after they arrived; however, he did not ask them to leave. Robert Harrah testified that when a patron is asked to leave the dining room because of the way he is conducting himself, that usually is sufficient. In those instances in which an offensive or abusive patron does not leave when asked, a call to the police usually will produce a quick exit before the police arrive. When asked how such an individual knows they are calling the police, Harrah answered: “They can see us. The phone is right there, all we’ve got to do is dial the number and they know I am calling the police.” He said they had the police telephone number “right there.”

Had the Jack-in-the-Box employees demanded that the McDonalds leave as soon as they had notice of the likelihood that the McDonalds might commit acts of violence, the fight probably would never have gotten started. Certainly the jury could have believed that the police would have arrived before Paula Eastep was injured.

Moreover, it is a reasonable inference that if the Jack-in-the-Box employees had acted as soon as they saw weapons displayed, the police would have arrived before Paula was cut. There was evidence that the McDonalds taunted the Easteps with knives drawn for two or three minutes before the first blow was struck. It was during this time that the employees saw the confrontation but were “paralyzed” and did nothing. There was evidence that Paula was not cut until as long as five minutes after the first blow. The police arrived three minutes after being called. This is sufficient to support a finding of cause in fact.

We hold that the record contains some evidence of probative value that the negligent acts of the employees of appellee were a proximate cause of the injuries sustained by Paula Eastep. Appellants’ points of error are sustained. The judgment of the trial court is reversed, and judgment is here rendered that appellants, Paula Eastep and Danny Eastep, recover from appellee, Jack-in-the Box, Inc., the damages found in accordance with the verdict of the jury.

Reversed and rendered.