author: RAY, Justice.

text:
    TANDY CORPORATION, d/b/a Radio Shack and Radio Shack, A Tandy Corporation Company, Appellant, v. Donald L. McGREGOR, Appellee.
    No. 8272.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 26, 1975.
    Rehearing Denied Sept. 23, 1975.

      James S. Maxwell, Thomas E. Kurth, Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, for appellant.
    A. Don Crowder, Crowder & Mattox, Dallas, for appellee.
   RAY, Justice.

This is a suit for malicious prosecution, false imprisonment and abuse of process. Donald L. McGregor (plaintiff) appellee brought suit against appellant (defendant) Tandy Corporation, d/b/a Radio Shack and Radio Shack, A Tandy Corporation Company (hereinafter referred to as Tandy) seeking a recovery of damages for his having been incarcerated in the Dallas County Jail on a charge of passing a worthless check in the sum of $104.20 to appellant. The jury found in favor of McGregor on his counts of false imprisonment and abuse of process, but found in favor of Tandy on the malicious prosecution count. The trial court entered judgment upon the jury verdict and awarded McGregor the sum of $10,000.00 actual damages and $15,000.00 exemplary damages. The trial court overruled Tan-dy’s motions for directed verdict, judgment non obstante verdicto, remittitur and motion for new trial. Appellant has perfected its appeal to this court and submits twenty-two points of error for our consideration.

Appellant’s points of error 4, 7, 8, 9, 10, 13 and 15 related to objections to the court’s charge, will not be considered because such objections were not reduced to writing and presented to the trial court in compliance with Rules 272 and 386, Tex.R. Civ.P. Tandy’s failure to present such objections in writing to the trial judge for endorsement of his rulings and official signature within sixty days after rendition of judgment or date of order overruling motion for new trial was fatal to having the appellate court consider Tandy’s points of error related thereto because the trial court had lost jurisdiction of the case. Further, appellant has not shown good cause for its failure to timely file its written objections to the court’s charge. Commercial Standard Insurance Company v. Southern Farm Bureau Casualty Insurance Company, 509 S.W.2d 387 (Tex.Civ.App. Corpus Christi 1974, no writ).

The pertinent facts related to the disposition of this case are as follows:

On December 17, 1969, a worthless check in the sum of $104.20 bearing the printed name of Don McGregor, his Dallas address and signed “Don McGregor” was issued to Radio Shack, one of Tandy’s stores. When the check was presented for the payment of merchandise to the salesperson at the Radio Shack store, the temporary driver’s license of a Don McGregor was presented for identification and that number was recorded on the back of the check along with a description of the person passing the check. The salesperson accepting the check, Kendall Tatum, verified the authenticity of the signature on the check by comparing it with that on the temporary driver’s license and then took the check to the store manager for his approval. The check was approved by the store manager, Richard I. Ware, and accepted as payment for the merchandise. McGregor testified that on the Monday following the theft of his checks and wallet, he called the Northwest National Bank and reported the theft and asked the bank not to honor any checks not authorized or executed by him. The check in question was deposited for collection on more than one occasion and each time the check was returned marked “Insufficient Funds,” as distinguished from any other reason for the check being returned such as unauthorized signature or a stop payment notice. On January 4, 1970, Mr. Ware, the store manager, attempted to contact McGregor by telephone at his home regarding the bad check, but was advised by McGregor’s father, who answered the telephone, that McGregor no longer lived there but he expected to see McGregor in a few days and would pass on the information regarding the bad check to appellee. When Mr. Ware had received no advice or contact from McGregor by January 8, 1970, he forwarded a certified letter, return receipt requested, to McGregor at his last known address requesting him to contact Mr. Ware within ten days regarding the bad check. Subsequently, the return receipt from the certified letter to McGre-gor was received by Mr. Ware showing that the letter had been delivered to plaintiff’s address. Mr. Ware testified that on January 27, 1970, he prepared a standard complaint form furnished to him by the District Attorney’s Office for “hot” check offenses and sent this to the District Attorney’s Office with the check and other information.

On April 30, 1970, Mr. Ware received a letter from Tim Banner, an attorney representing McGregor, advising Mr. Ware that McGregor’s checkbook was stolen from him on the 6th day of December 1969 and that McGregor did not write a check to Radio Shack. On the same date, Mr. Ware forwarded Banner’s letter- to the District Attorney’s Office with the notation, “This is for your information. If it is necessary for me to come to your office personally to file the charges .please notify me of same. Thanks.” The Dallas County Grand Jury in June 1970 indicted McGregor and a warrant was issued for his arrest. McGregor was arrested in August 1970 and was placed in jail until he could make bond some six days later. On March 22, 1972, the case against McGregor was dismissed on motion of the District Attorney when it was determined that McGregor could not be identified by any of appellant’s employees as the person who actually passed the worthless check. After the criminal charges were dismissed, McGregor filed suit against appellants.

Nowhere does appellee McGregor complain that the warrant by which he was arrested was insufficient in form or was not issued by a court or official having jurisdiction to issue it. “It is a complete defense to an action for false imprisonment that the arrest or detention was by virtue of process, legally sufficient in form, and duly issued by a court or official having jurisdiction to issue it.” 35 C.J.S. False Imprisonment Sec. 27, p. 660. The presumption is that the warrant under which McGregor was arrested was valid in form, issued by competent authority on a sufficient complaint. The burden of proof was upon McGregor on his count of false imprisonment to show by a preponderance of the evidence that his detention was not under valid process. 35 C.J.S. False Imprisonment Sec. 27, supra; 25 Tex.Jur.2d, False Imprisonment, Sec. 33, p. 266; 32 Am.Jur.2d, False Imprisonment, Sec. 37, p. 102; Pate v. Stevens, 257 S.W.2d 763 (Tex.Civ.App. Texarkana 1953, writ dism’d); Rader v. Parks, 258 S.W.2d 728 (Kentucky Ct. of App.1953).

In J. C. Penney Company v. Duran, 479 S.W.2d 374 (Tex.Civ.App. San Antonio 1972, writ ref’d n. r. e.) it is stated that, “The essential elements of false imprisonment are: (1) a willful detention of the person; (2) a detention without authority of law; and (3) a detention against the consent of the party detained.” The essential lacking in the present case is “a detention without authority of law,” because it is undisputed that McGregor was detained as a result of a warrant issued for his arrest following his indictment by the Dallas County Grand Jury. Appellants were entitled to an instructed verdict as well as a judgment notwithstanding the verdict as related to the count of false imprisonment because there was no evidence that McGre-gor was detained without authority of law. Likewise, we find there was no evidence of an abuse of process.

“Abuse of legal process consists in the malicious misuse or misapplication of that process to accomplish some purpose not warranted or commanded by the writ. In brief, it is the malicious perversion of a regularly issued civil or criminal process, for a purpose and to obtain a result not lawfully warranted or properly attainable thereby, and for which perversion an action will lie to recover the pecuniary loss sustained.” 1 Am.Jur.2d, Abuse of Process, Sec. 1, p. 250.

An action for abuse of process presupposes an originally valid and regular process, duly and properly issued. 72 C.J.S. Process Sec. 120(c), p. 1194. In J. C. Penney Company v. Gilford, 422 S.W.2d 25, 31 (Tex.Civ.App. Houston 1st. Dist. 1967, writ ref’d n. r. e.), the court set out the following elements of an actionable cause for abuse of process, which are as follows: “The ele-~\ ments of an action for abuse of process are stated to be: (1) that the defendant made an illegal, improper, perverted use of the process, a use neither warranted nor authorized by the process, and (2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted, or improper use of process, and (3) that damage resulted to the plaintiff from the irregularity. 1 Am.Jur.2d, Abuse of Process, Sec. 4.” There is at least one Texas case which states that “want of probable cause” is an essential element to a cause of action for abuse of process. Robert & St. John Motor Co. v. Bumpass, 65 S.W.2d 399 (Tex.Civ.App. Eastland 1933, writ dism’d). See also 1 Am.Jur.2d, Abuse of Process, Sec. 6, p. 254 and footnote No. 4 on p. 255 for a collection of cases holding that malice and want of probable cause are essential elements of the cause of action.

It was then stated in Gilford, supra, that “While it might be argued on respected authority that procuring the issuance of a warrant of arrest and the subsequent arrest of one for the purpose of extorting the payment of money to the one so procuring the warrant by the one arrested would constitute a sufficient basis for the action of abuse of process, ibid., Sec. 12, we are committed to the view that an action for abuse of process cannot be maintained where the process was employed to perform no other function than that intended by law. The mere issuance of process is not actionable as an abuse of process. There must be use of the process, and that use must of itself be without the scope of the process, and, hence, improper. Blackstock v. Tatum, 396 S.W.2d 463 (Tex.Civ.App. Houston 1965, n. w. h.).”

We have concluded that the trial court did not submit any special issues related to abuse of process, nor was abuse of process established as a matter of law. On the contrary, the evidence fails to support any judgment for abuse of process. There being no evidence of abuse of process, the trial court should have granted appellant’s motion for instructed verdict and its motion for judgment notwithstanding the verdict.

The judgment of the trial court is reversed and judgment is here rendered that appellee Donald L. McGregor, take nothing.

ON MOTION FOR REHEARING

This case was transferred from the Court of Civil Appeals for the Fifth Supreme Judicial District at Dallas to the Court of Civil Appeals for the Sixth Supreme Judicial District at Texarkana on an equalization of dockets by the Supreme Court of Texas pursuant to Article 1738, Tex.Rev.Civ.Stat.Ann. Appellee, Donald L. McGregor, filed his motion to dismiss the appeal in the Court of Civil Appeals for the Fifth Supreme Judicial District asserting that appellant Tandy had not properly perfected its appeal because the transcript of the record did not include Tandy’s original motion for new trial. The motion was overruled by the Court of Civil Appeals for the Fifth Supreme Judicial District at Dallas. This Court concurs in that ruling. We hold that appellant timely perfected its appeal. The transcript contains Tandy’s amended motion for new trial which bears a notation by the District Clerk of Dallas County that the original motion for new trial was filed on April 26, 1974, which was within ten days from April 18, 1974, the date of the judgment of the trial court. Our Supreme Court in an effort to cut the costs and time in perfecting an appeal has entered ah order related to the preparation of a transcript pursuant to Rule 376-a, Tex.R.Civ.P., stating in part the following: “Where a pleading has been substituted by the filing of an amended pleading, all pleadings prior to the amendment are classed as discarded pleadings and shall not be included in the transcript unless specially requested by counsel.” It will be presumed that the notation by the District Clerk on the amended pleadings included in the transcript as to the date of the filing of original pleadings is the correct date unless the contrary is shown upon the face of the record or by other methods provided by the Rules of Civil Procedure. Had appellee wanted to seriously contest the jurisdiction of this Court on the basis that appellant’s original motion for new trial was not timely filed, he could have requested that the transcript include the original motion for new trial and thus disclose to this Court the date of the filing of the original motion. Rule 376, Tex.R.Civ.P. The same could have been done by supplemental transcript. Rule 428, Tex.R.Civ.P.

We have examined appellee’s other assignments of error and find them unpersuasive.

Appellee’s motion for rehearing is overruled.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    H. D. MERRELL, Jr., Appellant, v. Rita Mae MERRELL, Appellee.
    No. 845.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 28, 1975.
    Rehearing Denied Sept. 18, 1975.

      Jerry S. Hughes, Reyburn U. Anderson, Welz, Anderson, Peters & Hughes, Victor C. McCrea, Jr., Dallas, for appellant.
    William C. Koons, Geary, Brice, Barron & Stahl, Dallas, for appellee.
    Robert A. Fanning, Fanning & Harper, Dallas, for intervenor.
   McKAY, Justice.

This is a divorce case involving division of property, and it is also an action for attorneys’ fees by intervening attorneys who previously represented appellant in the divorce case. After trial, before the court without a jury, judgment was rendered granting the divorce, dividing the property and awarding attorneys’ fees.

Appellee brought this suit for divorce in Domestic Relations Court No. 3, Dallas County, on July 16, 1973. Fanning & Harper, attorneys, filed an answer for appellant on July 23,1973. Almost one year later, on July 16, 1974, Fanning & Harper filed a motion to withdraw as counsel for appellant, and such motion was granted by order of the trial court the following day. Thereafter, on August 14, 1974, Fanning & Harper filed suit against appellant for attorneys’ fees for representing appellant in this case, in the 192nd District Court of Dallas County. On September 4, 1974, while that case was pending in the 192nd District Court, Fanning & Harper filed a petition in intervention in the case at bar praying for the same relief against appellant as in the district court. Appellant then filed a plea in abatement alleging that the same cause of action against the same party containing the same subject matter and issues had been filed and was pending in the 192nd District Court, and prayed that the petition in intervention be abated inasmuch as a trial in the district court could and would determine all the issues between the parties.

The trial court overruled the plea in abatement, and appellant complains by his point one that such action was error. We sustain this point.

Appellant argues first that the Domestic Relations Court No. 3 is not a court of general jurisdiction, and therefore had no jurisdiction to consider intervenor’s debt action. The Court of Domestic Relations No. 3 of Dallas County was created by the Legislature by Art. 2338-9b, V.A.T.S., and the jurisdiction of the court is set out as applicable here:

“ * * * Said Court of Domestic Relations No. 3 shall have jurisdiction concurrent with the District Courts and Courts of Domestic Relations situated in said county of all cases involving * * * : and of all divorce and marriage annulment cases, including the adjustment of property rights * * * and any and every other matter incident to divorce or annulment proceedings * * * : and all other cases involving justiciable controversies and differences between spouses * * * or between any of these and third persons, corporations, trustees or other legal entities, which are now, or may hereafter be, within the jurisdiction of the District or County Courts * *

It appears from the language of the statute that Domestic Relations Court No. 3 would have jurisdiction to entertain and adjudicate the intervention by Intervenors for attorneys’ fees unless the filing and the pendency of the suit in the district court would prevent it from so doing when the question was raised by appellant’s plea in abatement. Benson v. Fulmore, 269 S.W. 71 (Tex.Com.App.1925) holds that the pend-ency of a prior suit for the same cause of action between the same parties in a court of competent jurisdiction will abate a later suit. Long v. Long, 269 S.W. 207 (Tex.Civ.App.—Dallas, 1925, no writ) holds that a plea in abatement should be sustained when there is a prior suit between the same parties involving the same subject in another court of equal jurisdiction. In probably the most often cited case on this point, the Supreme Court in Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926) held that a plea in abatement should be sustained when a prior suit is filed in a court of competent jurisdiction with the same subject matter and parties (citing Benson v. Fulmore and Long v. Long) because jurisdiction attached when the first suit is brought and the suit is therefore “withdrawn from the authority and jurisdiction of all courts of coordinate power.”

In Barrier v. Lowery, 118 Tex. 227, 11 S.W.2d 298 (Tex.Com.App.1928), the court held “The district court for the Ninety-Fifth district having acquired jurisdiction of the subject-matter involved in relators’ cross-action, its right to determine the questions therein involved was exclusive, and could not be trenched upon by any other court.” The court in Barrier pointed out that there was some confusion on the question prior to the decision of Cleveland v. Ward, supra, but that the court in that case “distinctly held that jurisdiction of a district court once acquired cannot be destroyed, diminished, or suspended by any one of the parties, pending an action in another court, and any judgment or order of the latter is void so far as it conflicts with any judgment or order of the court first acquiring jurisdiction.”

The following cases cite or quote Benson v. Fulmore, supra, Long v. Long, supra, or Cleveland v. Ward, supra; Davisson v. Eastland County, 6 S.W.2d 782 (Tex.Civ.App.—Eastland, 1927, affirmed 13 S.W.2d 673, Tex.Com.App.); Dallas Development Co. v. Reagan, 25 S.W.2d 240 (Tex.Civ.App.—Dallas, 1930, no writ); Bowen v. First State Bank of Fate, 37 S.W.2d 400 (Tex.Civ.App.—Texarkana, 1931, no writ); Haney v. Temple Trust Co., 55 S.W.2d 891 (Tex.Civ.App.—Austin, 1932, writ dism.); Clack v. Southwest Dairy Products Co., 95 S.W.2d 1038 (Tex.Civ.App.—Dallas, 1936, writ dism.); Wheelis v. Wheelis, 226 S.W.2d 224 (Tex.Civ.App.—Fort Worth, 1950, no writ); Fulton Bag & Cotton Mills v. Valley Products Corp., 277 S.W.2d 241 (Tex.Civ.App.—Dallas, 1955, affirmed 155 Tex. 365, 286 S.W.2d 411); Allied Finance Co. v. Shaw, 373 S.W.2d 100 (Tex.Civ.App.—Fort Worth, 1963, writ ref’d, n.r.e.); Chem-Gas Engineers, Inc. v. Texas Asphalt & Refining Co., 398 S.W.2d 143 (Tex.Civ.App.—Waco, 1966, no writ); Ingram v. Ingram, 380 S.W.2d 666 (Tex.Civ.App.—Dallas, 1964, writ dism.). The Rule has also been applied to habeas corpus cases. Millikin v. Jeffrey, 117 Tex. 134, 299 S.W. 393 (1927).

Intervenors argue that the parties are not the same in the instant case as they were in the district court suit. The record reveals that intervenors’ petition in intervention names appellant only as a defendant the same as was done in the district court.

While the record here does not indicate there was any action taken or judgment rendered in the district court case, we believe the law is clear in Texas that the pendency of another prior suit for the same cause of action between the same parties in a court of competent jurisdiction will abate a later suit. The district court had jurisdiction of the subject matter and the parties (an answer was filed). We believe the trial court erred in overruling appellant’s plea in abatement. Vol. 2, McDonald, Texas Civil Practice, Sec. 710.

Appellee and intervenors argue that appellant waived any objection to the overruling of his plea in abatement by failing to file a motion for new trial as required by Rule 325, T.R.C.P. We disagree with this contention.

Rule 325 provides:

“In cases of motions for continuance, or for change of venue, or other preliminary motions made and filed in the progress of the cause, the rulings of the court thereon shall be considered as acquiesced in, unless complained of in the motion for new trial; * * ⅝ Nothing in Rule 324 shall render a motion for new trial unnecessary in the instances mentioned in this Rule nor in instances of newly discovered evidence, misconduct, fraud or the like.” (Emphasis added.)

Rule 324 provides that a motion for new trial is not necessary in a non-jury case.

We hold that a motion for new trial was not necessary to preserve appellant’s point contending that the trial court erred in overruling his plea in abatement. A plea in abatement is not a preliminary motion in the same sense or of the same class as a motion for continuance or for change of venue. The ruling on the plea in abatement could have eliminated the intervenors from participation in this suit and therefore the plea is not a preliminary motion as contemplated by Rule 325. City of Roma v. Starr County, 428 S.W.2d 851 (Tex.Civ.App.—San Antonio, 1968, writ ref’d, n.r.e.); Peterson v. Peterson, 502 S.W.2d 178 (Tex.Civ.App.—Houston 1st, 1973, no writ); Williams v. Whitten, 451 S.W.2d 535 (Tex.Civ.App.—Tyler, 1970, no writ).

It has been held that Rule 325 applies to matters not otherwise shown by the record. Ingram v. Ingram, supra; Harmon v. City of Dallas, 229 S.W.2d 825 (Tex.Civ.App.—Dallas, 1950, writ ref’d, n.r.e.). In the instant case, the plea in abatement and the court’s ruling thereon are contained in and revealed by the record and therefore are before this court. Under such circumstances we think a motion for new trial was unnecessary.

By his second point appellant maintains the trial-court erretTin admitting into evidence the proposed property settlement which action probably caused the rendition of an improper judgment because it constituted an offer of compromise and settlement never accepted by the parties. We overrule this point.

The record reveals that the proposed property settlement agreement was offered into evidence for the purpose of showing it to be a part of the work product of counsel for appellee as well as interve-nors in connection with the claim for attorneys’ fees by the respective attorneys and for no other purpose. If admission of such evidence before the court in a non-jury case be error, and we do not agree that it was, we believe it to be harmless. In a trial before the court the admission of incompetent evidence will not generally require a reversal of the judgment when there was competent evidence to authorize its rendition, and it Will ordinarily be assumed that the trial court disregarded such evidence. Haynes v. Henderson, 345 S.W.2d 857 (Tex.Civ.App.—Austin, 1961, writ ref’d, n.r.e.); Gordon v. Pledger, 271 S.W.2d 344 (Tex.Civ.App.—Galveston, 1954, writ ref’d, n.r.e.); Taylor v. Guillory, 439 S.W.2d 362 (Tex.Civ. App.—Houston 1st, 1969, no writ); Rule 434, T.R.C.P.; 57 Tex.Jur.2d Trial, sec. 571, pp. 328-9.

Appellant’s third point complains that the trial court abused its discretion by unjustly dividing the property of the parties, and he argues that the undisputed evidence shows that the five duplexes involved were acquired with money from his separate estate which was properly traced and not comin-gled. A review of the evidence seems to be necessary in passing upon this point.

According to appellant’s testimony appellant and appellee married on July 7, 1972, and promptly thereafter they opened a joint savings account and a joint checking account. Appellant contributed $5,200 and appellee $4,300 to the savings account, and appellee contributed $900 to the checking account, but the record is silent as to appellant’s original contribution to the joint checking account. Appellee’s two children by a former marriage lived in the home part time, and when they were there she received $500 per month child support and deposited it in the joint checking account. Appellee received $158 per month on a promissory note and $150 per month from her father and deposited both amounts in the joint checking account. She sold the note for $6,000 and put that amount into the joint account.

Appellant further testified that they lived in appellee’s apartment until the purchase of a house was completed, and that $11,993, in addition to the earnest money, was paid out of the joint account on such purchase. Title to the house was taken in both names, and both executed a note for $46,800 to Oak Cliff Savings and Loan, and payments were made on the house out of the joint account. The house was sold February 23, 1973, for $62,000, and a net of $11,149.96 was realized after all expenses were paid, and this net was deposited in the joint checking account and used as part , payment on duplexes purchased. The check was made payable to both appellant and appellee, and both of them signed the deed to the purchaser.

On February 27, 1973, the purchase of five duplexes was completed. When the contract was signed to buy the duplexes a $10,000 check payable to the seller was written on the joint account, and both parties made application to the Oak Cliff Savings and Loan for a loan on each duplex. The loans were made and both signed the notes and title to the duplexes was taken in both names. The difference between the cost of the duplexes and the total of the loans came to approximately $85,000 which had been put into and drawn out of the joint account. Payments made monthly to the savings and loan were made from the joint account until the parties separated. There was no recital in the deeds that any of the duplexes, or the purchase price therefor, was the separate property of appellant, and he made no objection to title being taken in both names. Payments were also made out of the joint account for automobiles. A bank loan of approximately $45,-000 was made and the note signed by both parties, and the proceeds went into the joint account. Appellee signed notes with appellant in these transactions for a total of approximately $350,000.

Appellant testified that he inherited some corporate stocks from the estate of his mother, and that he sold stocks worth approximately $100,000, and that such funds were used to finance the purchase of the duplexes. Under the record we are unable to conclude that such funds were properly traced as appellant’s separate property and not comingled with appellee’s separate property or the community property.

The record shows that appellant had many stock and bond transactions during the marriage. He bought and sold many shares of stock and some were bought short or on margin. Bonds were also bought on margin. Sometimes he would owe his brokerage firm several thousand dollars, and at other times he would have a credit with them.

At the time of the trial appellant was employed by an insurance company with a salary of $17,000, while appellee was a teller in a bank with a salary of $525 per month.

The trial court in its judgment awarded to appellee, among other items of property, two of the five duplexes bought by the parties during the marriage. Appellant maintains and argues all five duplexes were his separate property.

Section 3.63, Texas Family Code, provides that “ * * * the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Courts are vested with wide discretionary authority in the division of property in a divorce suit, and in the absence of the abuse of such discretion, the trial court may divide the property, community or separate, in such a way as the court deems right and just. Bell v. Bell, 513 S.W.2d 20 (Tex.1974); Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Wilkerson v. Wilkerson, 515 S.W.2d 52 (Tex.Civ.App.—Tyler, 1974, no writ); Roye v. Roye, 404 S.W.2d 92 (Tex.Civ.App.—Tyler, 1966, no writ).

In exercising its discretion the trial court may consider all the circumstances surrounding the parties including the relative fault of the parties and “the benefits which the spouse not at fault would have derived from a continuance of the marriage,” Hedtke v. Hedtke, supra, and the trial court is not required to divide the property equally between the parties and may consider the disparity of the earning power of the parties as well as their business opportunities, capacities and abilities. In Re Marriage of McCurdy, 489 S.W.2d 712 (Tex.Civ.App.—Amarillo, 1973, writ dism.).

We are unable to agree that the trial court abused its discretion in the division of the property. Appellant’s third point is overruled.

In his fourth point appellant says the trial court abused its discretion by awarding attorneys’ fee to appellee’s counsel in the amount of $6,000 because the evidence showed that appellee had the financial means to pay her own attorney. The discretion which the trial court may exercise in dividing the property in a divorce case also applies to the payment of attorneys’ fees, and “the attorney’s fee is but a factor to be considered by the court in making an equitable division of the estate * * *.” Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1951). Appellant’s fourth point is overruled.

The judgment of the trial court wherein it awards attorneys’ fees to the intervenors is reversed and such petition in intervention abated; in all other respects the judgment is affirmed.


author: NYE, Chief Justice.

text:
    James J. CASEY et al., Appellants, v. Ernest BARKLEY, Jr., et al., Appellees.
    No. 952.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1975.
    Rehearing Denied Sept. 18, 1975.

      Harry F. Maddin, Allison, Maddin, White & Brin, Corpus Christi, Merrill W. Russell, Jr., Greenwood & Russell, Harlingen, for appellants.
    Finley L. Edmonds, Meredith & Donnell, Corpus Christi, for appellees.
   OPINION

NYE, Chief Justice.

This is an intersectional collision case. James J. Casey brought suit to recover damages allegedly sustained by him as a result of a right angle collision between the truck he was driving and a truck and tank trailer owned by Barkley Feed and Seed Company and operated by Maximilliano Garza. Casey’s truck was leased from Rollins Leasing Company. Following a jury trial in which the jury found primary and contributory negligence, the trial court entered a take-nothing judgment in favor of the defendants. Plaintiff Casey has duly perfected his appeal to this Court.

The collision occurred at the intersection of Highway 77 and Farm Road 70 between Robstown and Kingsville. Highway 77 is a divided highway consisting of two lanes in each direction. At the point of intersection of Farm Road 70, the roadway widens to four lanes to accommodate vehicles turning off and on Highway 77. Casey was driving his truck north on Highway 77. The speed limit at that time was 65 miles per hour. Garza was driving his truck east on Farm Road 70. As he was approaching Highway 77 northbound intersection, he was faced with a stop sign and traffic control device located over the center of the intersection. It contained a flashing red light for Garza and an amber flashing light on Highway 77 facing Casey.

Casey testified that he left San Benito, Texas, in the lower Rio Grande Valley en route to Jacksonville, Florida, carrying a cargo of 36,000 pounds of “swinging meat”. He testified that his truck was governed at 58 miles per hour in tenth gear and that this was the maximum speed that the truck could attain. He testified that as he approached the scene of the accident, he was driving in ninth gear which would give him a maximum speed of 48 miles per hour. Casey testified that he first saw Garza at a point when Garza was crossing the southbound portion of Highway 77. The next time he saw Garza, he was approaching the intersection preparing to stop. He testified that for the next second or two, his attention was directed to the right to clear traffic from that direction. As he approached the intersection, he heard the sound of “somebody jamming a gear”. Casey’s truck struck Garza’s tank-truck on the rear right hand side as Garza was crossing through the intersection causing extensive damages and injuries.

Garza testified that as he was crossing the median between the two highway lanes, he was traveling at a speed of five or six miles per hour. He indicated that he looked to his right before he got to the stop sign. Garza testified that when he saw Casey, he thought Casey was pretty far back, but traveling better than sixty miles per hour. Garza then “rolled through the stop sign” into the intersection gaining speed as he went through. He stated that he was traveling 5 or 6 miles an hour when the accident occurred. The parties for both sides attempted to reconstruct the accident by the use of plats, photographs, diagrams, and expert testimony. The evidence shows that there were no skid marks from either vehicle leading up to the point of impact, but only gouge marks in the asphalt at the point of impact.

Casey alleged that Garza was guilty of certain acts of negligence, each of which was the proximate cause of plaintiff’s damages and injuries. In addition, Casey alleged that Garza discovered and realized that Casey was in a perilous position at a time in which Garza could have avoided the occurrence in question by the exercise of ordinary care, which he failed to do. The trial court refused Casey’s issues on discovered peril.

The jury found that Garza failed to keep a proper lookout; failed to yield to the Casey vehicle; failed to stop before entering the intersection; and that Garza failed to make such application of the brakes as a person using ordinary care would have made, each of which was found to be the proximate cause of the occurrence in question. In addition, however, the jury found that Casey was contributorily negligent. It found that Casey failed to keep a proper lookout; was driving at a greater rate of speed than a person using ordinary care would have driven; and failed to make proper application of the brakes, all of which was a proximate cause of the occurrence in question. The trial court accordingly entered a judgment that plaintiff take nothing. Casey has duly perfected his appeal from that judgment to this Court bringing forward five points of error.

In appellants’ first point of error, he contends that the trial court erred in refusing to submit a cluster of special issues which were his requested issues on discovered peril, for the reason that such issues were raised by evidence and should have been submitted to the jury. This necessarily raises a point , of no evidence. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); McDonald v. New York Central Mutual Fire Insurance Company, 380 S.W.2d 545 (Tex.Sup.1964); Rule 279, T.R.C.P. (1967). Whether a particular issue should be submitted is determined by the application of tests identical with those employed in determining whether an instructed verdict should be given. Imperial Insurance Company v. Ellington, 498 S.W.2d 368 (Tex.Civ.App.—San Antonio 1973, no writ); 3 McDonald, Texas Civil Practice § 12.08C (1970). This requires us to consider only the evidence and the inferences that may be reasonably drawn therefrom that are favorable to the appellants’ issues on discovered peril and to disregard all of the evidence and inferences to the contrary.

The basis for recovery in a discovered peril case rests upon humane principals and public policy and not upon the negligence or dereliction of duty on the part of the injured plaintiff. The rule of law which allows recovery of damages under this doctrine is exacting. It is necessary for the plaintiff to prove: 1) that the defendant actually discovered and realized the perilous position of the plaintiff; and 2) that the discovered realization by the defendant was in time to have avoided the collision by the exercise of ordinary care and by the use of all the means at his command, consistent with his own safety. The burden is upon the plaintiff to establish that the driver of the defendants’ vehicle was guilty of violating each and all of these humane principles. The quantum of proof required to entitle a plaintiff to have the discovered peril issues submitted is evidence of such facts and circumstances, together with all of the reasonable inferences therefrom, as would constitute some evidence of probative force of their existence. Gentry v. Southern Pacific Company, 457 S.W.2d 889 (Tex.Sup.1970); Texas & New Orleans Ry. Co. v. Hart, 163 Tex. 450, 356 S.W.2d 901 (1962). Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952). It is not sufficient that defendant could have or should have realized the perilous position of the plaintiff, but rather, plaintiff must show actual discovery and realization by defendant in time to avoid the collision. Gentry v. Southern Pacific Company, supra; Texas & New Orleans Ry. Co. v. Hart, 163 Tex. 450, 356 S.W.2d 901 (1962); Safeway Stores, Inc. v. White, 162 Tex. 473, 348 S.W.2d 162 (1961); Parks v. Airline Motor Coaches, 145 Tex. 44, 193 S.W.2d 967 (1946).

The evidence is clear to us that after Garza saw Casey, he proceeded into the intersection, inferentially confident that he had time to cross the highway. Garza stated that he never looked back. At the only time that Garza saw Casey’s truck, Casey was not in a position of peril. When the facts later developed to where Casey was in a position of peril, the Garza truck was already crossing the intersection. Garza was not looking at Casey or contemplating a collision. Appellant argues that at one point in the testimony, Garza answered a hypothetical question favorable to appellants’ contention that he discovered plaintiff’s perilous position. The question put to Garza was: “How long it would take a truck going at 60 miles per hour, to stop?” Garza stated: “I don’t think he got enough chance to stop.” The asserted facts that if Garza had been looking, and if he had been paying attention, and if he had realized the danger, he could have stopped and avoided the accident, do not establish that necessary quantum of proof that Garza actually discovered Casey, realized his perilous position at a time in which he could have averted the accident. We have considered all of the evidence that could be considered favorable to the appellants’ contentions and find that there is no evidence of each and every element of all of the discovered peril issues that are necessary to submit to the jury. Appellants’ first point of error is overruled.

Appellants, in their second point of error, complain that the trial court erred in allowing the defendant to introduce speculative testimony based upon projected time sequences and speeds of the two trucks in question, without any evidence to support such hypothetical opinion testimony. More specifically, appellants contend that Mr. Flanagan (an expert witness), in making his calculations, assumed the fact that the Casey vehicle at one point was traveling 70 miles per hour down U.S. Highway 77; that the Barkley vehicle was moving two miles per hour through the stop sign and gradually accelerated from two to six miles per hour with an average speed of four miles per hour; and that the coefficient of friction of the highway at the scene of the accident was .8, for all of which there was no evidence to support the question. First, as to appellants’ complaint concerning Flanagan’s use of .8 as the coefficient of friction, the same is completely without merit. Flanagan was asked what his opinion was as to the approximate coefficient of friction at a point on U.S. Highway 77 northbound leading up to the intersection with Farm Road 70. He agreed that .7 or .8 would be right in that area, “preferably .8”.

Flanagan was asked to make certain calculations as to the total braking distance of the Casey vehicle using various speeds which included 70 miles per hour, together with a reaction time of 8Aths second. He was asked to make the same calculations using speeds of 48 miles per hour and 60 miles per hour which exact speeds were in evidence. The record reflects that Garza had testified that when he first saw Casey, Casey’s vehicle was traveling better than sixty miles per hour, thus, the speed of 70 miles per hour was properly inferred from such testimony and the other evidence.

Next, Flanagan was asked to determine the number of seconds it took the Barkley vehicle to travel from the stop sign to the point of impact, a distance of 97 feet, assuming Garza left the stop sign traveling at approximately two miles per hour with a steady rate of acceleration over the 97 foot distance to the point of impact at which point he reached a speed of approximately 6 miles per hour. Flanagan answered that it would take 16.4 seconds. During that interval of time Flanagan stated that Casey’s vehicle would be 1,140 feet back from the point of impact, assuming a constant speed of 48 miles per hour; 1,446 feet back assuming a constant speed of 60 miles per hour; and 1,688 feet back assuming a speed of 70 miles per hour. Appellants argue that there was absolutely no evidence in the entire record that Garza was moving two (2) miles per hour at the time he passed the stop sign or that he gradually accelerated from two (2) to six (6) miles per hour.

Although there was no specific testimony that Garza traveled through the stop sign at approximately two miles per hour, there was evidence from which that fact could reasonably be inferred. Garza testified that the maximum speed that he had reached while traveling on Farm Road 70 between the stop sign at the intersection of U.S. Highway 77 (southbound) and the stop sign located at the intersection of U.S. Highway 77 (northbound) was five or six miles per hour, but that he had slowed down before he reached the second stop sign. Upon reaching the stop sign, Garza testified as follows:

“Q Now, did you stop at this stop sign?
A Well, not exactly, though, but it was just barely, just like I told you awhile ago, those wheels was just barely turning a little.
Q You rolled through it, is that what you say, it slowly rolled through it, is that fair?
A Well, you can say that.
Q Okay. So you didn’t stop at that sign?
A Well, just barely stopped, but, you know, you just — your wheels just barely was turning there.
Q Okay. You had slowed down, but not to a complete stop, is that what you are saying?
A Right.”

Garza also testified that at some point along Farm Road 70 before coming to the stop sign (a point which is unclear in the record), he was traveling at 3 miles per hour. Finally, Garza testified that he gained more speed as he passed through the intersection to the point that he was not going over 5 or 6 miles per hour when the accident occurred. From these facts proved, it was reasonable to infer (in the hypothetical question) that Garza was traveling approximately 2 miles per hour at the time he passed through the stop sign into the intersection and that he gradually accelerated from 2 to 6 miles per hour.

The trial court in ruling on the propriety of a hypothetical question has “considerable latitude” in determining whether it is based upon a fair assumption of facts in evidence. Burns v. Bridge Engineering Corporation, 465 S.W.2d 427 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n. r. e.); Foreman v. Texas Employers’ Ins. Ass’n, 150 Tex. 468, 241 S.W.2d 977 (1951). It is not necessary to the propriety, of such a question that it include a reference to all of the relevant facts in evidence nor that it be confined to exact facts proven with mathematical certainty. It may include inferences reasonably drawn from other facts proved which are consistent with the theory of the party propounding the question. Burns v. Bridge Engineering Corporation, supra; Aetna Casualty & Surety Company v. Scruggs, 413 S.W.2d 416 (Tex.Civ.App—Corpus Christi 1967, no writ); Buchanan v. Central Freight Lines, Inc., 462 S.W.2d 391 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.). See also Pan American Fire & Casualty Company v. Reed, 436 S.W.2d 561 (Tex.Civ.App.—Amarillo 1969, writ ref’d n. r. e.); Texas Employers’ Ins. Ass’n v. Lovett, 19 S.W.2d 397 (Tex.Civ.App.—Austin 1929, writ ref’d); Texas Employers’ Ins. Ass’n v. Frazier, 259 S.W.2d 242 (Tex.Civ.App.—Eastland 1953, writ ref’d n. r. e.); McCormick and Ray, Texas Practice, Evidence Vol. 2, § 1403. Appellants’ point is overruled.

There is still another reason appellants’ second point of error is without merit. Buried in their motion for new trial is appellants’ twenty-second general complaint that the trial court erred. It stated:

“That the Court erred in allowing the witness, Jim Flanagan, to speculate on projected time sequences and speeds of the two trucks without any evidence to support this hypothetical opinion testimony.”

Appellant specifically asserts here that there was no evidence in the record: 1) that Casey was traveling 70 miles per hour; 2) that the Barkley vehicle moved through the stop sign at approximately two miles per hour gradually accelerating to six miles per hour at the point of impact; 3) that the coefficient of friction at the scene of the accident was .8.

Generally, appellants complain of the testimony of James Flanagan in their motion for new trial. The appellants do not set out distinctly the specific error complained of, nor the facts which allegedly are not supported by the evidence. They state generally it was error to allow this witness to give his opinion without any evidence to support it.

Our Rules of Civil Procedure and the cases decided thereunder make it clear that appellants’ second point of error is insufficient. Rule 320, T.R.C.P., provides that a motion for new trial shall specify each ground on which it is founded, and that grounds not specified shall not be considered. Rule 321, T.R.C.P., provides that each ground of error in a motion for new trial shall refer to that part of the ruling of the court or other matters complained of, “. . .in such way as that the point of the objection can be clearly identified and understood . . .’’by the trial court. Rule 322, T.R.C.P., provides that “grounds of objections couched in general terms in excluding or admitting evidence . . ., and the like — shall not be considered by the court”, and Rule 374, T.R.C.P., provides that a ground of error which is not distinctly set forth in the motion for new trial shall be considered as waived.

Although Rule 1 of our Rules of Civil Procedure states that the rules are to be given a liberal interpretation, Rules 320, 321, 322 and 374 were deliberately adopted to serve a vital purpose. The requirements of particularity for assignments of error in a motion for new trial are not only for the benefit of the appellate court, but are designed to aid and benefit the trial court. The specific complaint in the motion for new trial not only lays a predicate for the appeal, but its presentation to the trial judge allows the trial court to clearly identify and understand the alleged error, so that he may be able to correct the error or grant a new trial if need be. See Sandoval v. Rattikin, 395 S.W.2d 889 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e., cert. denied, 385 U.S. 901, 87 S.Ct. 199, 17 L.Ed.2d 132, reh. denied, 385 U.S. 964, 87 S.Ct. 389, 17 L.Ed.2d 309); Smith v. Brock, 514 S.W.2d 140 (Tex.Civ.App.—Texarkana 1974, no writ); Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Frobese v. Anderson, 487 S.W.2d 818 (Tex.Civ.App.—Texarkana 1972, writ granted, mandamus overruled); Roberts v. K-Mart Foods, Inc., 470 S.W.2d 751 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.). The assignment of error did not set out the ruling or action of the court in such a way that the point of objection could have been clearly identified and understood by the trial court. The assignment of error did not comply with the rules and thus did not afford the trial court a fair opportunity to consider and correct the error, if any.

Moreover, assuming as we may, that even if it were error on the part of the trial court to allow such testimony into the record, appellants have not shown that such error was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. Rule 434, T.R.C.P. Appellants had the burden of showing, not only that the evidence was erroneously admitted, but that it influenced the jury to make findings that they would not otherwise have made on the issues of Casey’s lookout, speed and application of brakes and proximate cause. This they failed to do. This is particularly true in view of the fact that plaintiffs failed to raise their objections until after several computations had been made that used the facts complained of.

In their last three points of error, appellants complain of the jury’s answers to the special issues inquiring as to the lookout kept by plaintiff, the rate of speed at which plaintiff was driving, and about his application of brakes. The jury had answered each of these issues against the plaintiff. The plaintiff complains that the answers to the special issues are against the great weight and preponderance of the evidence and there is insufficient evidence to support such answers. These points of error require us to review and weigh all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960).

With respect to the collision here involved appellant, who had the right of way, had the duty to keep a proper lookout for the Garza vehicle which was entering the intersection. His failure to do so is negligence. But such negligence was a proximate cause of the occurrence in question only if such lookout would have revealed something which would have alerted him to the danger of a collision at a time when he was a sufficient distance from the point of collision (considering the speed he was going) that he could have taken evasive action which would have avoided the accident. Pittman v. Licerio, 496 S.W.2d 676 (Tex.Civ.App.—Corpus Christi 1973, no writ); Bodine v. Welder’s Equipment Company, 520 S.W.2d 407 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.).

The evidence, together with all the photographs in evidence, shows that there was no obstruction along U.S. Highway 77 northbound which would have prevented Casey from seeing Garza as he rolled through the stop sign into the intersection. The Barkley vehicle was struck on the right side of the rear portion of the trailer. The Barkley vehicle was approximately 51 feet in length. Only the rear third of the trailer was struck as it was crossing through the intersection.

Casey testified that the first time he saw the Barkley vehicle was when he (Casey) was passing a junction sign which was approximately 630 feet from the intersection. Casey testified that he was traveling at 48 miles per hour as he approached the intersection. Casey further testified that the next time he glanced over at the Barkley vehicle, it looked as if it were slowing down to a stop. He then looked away to his right and never looked back again until he heard the sound of jamming gears ahead of him at which time he saw the Barkley vehicle. Casey testified he did not apply the emergency stop nor did he put the brakes on as hard as he could. It was undisputed that there were no skid marks leading up to the point of impact for either vehicle.

The expert witness Flanagan gave his opinion as to certain braking distances in which it would take the Casey vehicle to come to a complete stop. In determining such distances, Flanagan used a coefficient of friction of .8 and reaction time of Vrths of a second. Flanagan testified that the braking distance (including reaction time) of the Casey vehicle traveling at 48 miles an hour would be 159 feet; at 60 miles an hour 235 feet; and at 70 miles an hour 307 feet.

It was shown by the evidence that the distance from the stop sign to the point of impact was 97 feet. Thus, the front end of the Barkley vehicle had traveled 97 feet from the stop sign at Farm Road 70 to the point of impact. Flanagan was then asked to determine the number of seconds it would take the Barkley vehicle to travel the 97 feet from the stop sign to the point of impact assuming Garza began at 2 miles per hour, steadily increasing his rate of speed to 6 miles per hour at the point of impact, to which he replied, 16.4 seconds. Using this information Flanagan was then able to calculate where the Casey vehicle was 16.4 seconds before the point of impact using various speeds. He stated it would be 1,148 feet back from point of impact if Casey were traveling at 48 miles per hour; 1,446 feet away at 60 miles per hour; and 1,688 feet away at 70 miles per hour. In each of these instances, had Casey kept a proper lookout and had he reacted, he would have had sufficient space to stop his vehicle within any of the above distances, and thus could have avoided the collision.

Next, Flanagan was asked to determine how many seconds it would take the front of Garza’s truck to travel from the stop sign to a point of 60 feet from such stop sign which would be the west edge of the lane in which Casey was traveling, assuming a steady acceleration of 2 to 6 miles per hour over the 97 feet distance from the stop sign to the point of impact, to which Flanagan answered 7.7 seconds. Using the 7.7 seconds, Flanagan testified that the Casey vehicle, assuming the same constant rate of speed of 48 miles per hour, was 539 feet back from the point of impact. This again would allow Casey sufficient distance to react and brake so as to avoid a collision, had he kept a proper lookout and applied his brakes. It should also be noted here that it was the rear of Garza’s 59 foot vehicle that was struck by Casey, thus, Garza had made it almost all the way across the intersection before being struck.

Flanagan, disputing both Garza’s and plaintiff’s (Casey’s) recollection of how the accident occurred, had his own opinion as to the circumstances of the collision. He testified that from all the evidence and photos, be believed the speed of the Garza vehicle at the time of the collision was 15 miles per hour with Casey having reduced his speed to 24 miles per hour at the time of impact from 48 miles per hour. He was then asked to determine the number of seconds it took Garza, traveling at a constant speed of 15 miles per hour to travel the 97 feet from the stop sign to the point of impact, to which he answered 4.4 seconds. Flanagan then testified that assuming Casey was traveling 48 miles per hour, and reduced his speed to 24 miles per hour at the time of impact (average speed 36 m. p. h. or 52.853 feet per second), Casey’s vehicle was 232.2 feet back when Garza’s truck left the stop sign.

Even at the 232 feet distance, assuming a speed of 48 miles per hour and reaction time of Vddis second, Casey could have braked his vehicle to a complete stop in 159 feet. This was sufficient distance to have avoided the collision. Plaintiff’s attorney even asked Flanagan to assume a one second perception time in addition to the 106 feet braking distance and 53 feet reaction time. Flanagan testified Casey would have gone 70 feet in that one second and when added to the 106 feet braking distance and 53 feet reaction distance, it appears that it would have taken a total of 229 feet for the Casey vehicle to come to a stop. This was even three feet short of the point of impact. Using plaintiff’s version of the circumstances surrounding the collision, had Casey been keeping a proper lookout and had properly applied his brakes, the collision could have been avoided.

At whatever speed appellant was traveling whether it be 70, 60, or 48 miles per hour, there was ample time and distance for him to have taken evasive action which would have prevented the collision. When all the evidence is considered and weighed, together with all inferences that can reasonably be drawn therefrom, both in support of and contrary to the jury’s findings, we are of the opinion and so hold that the findings of the jury were not against the great weight and preponderance of the evidence so as to be manifestly wrong and unjust. Appellants’ points of error numbers 3, 4, and 5 are overruled.

The judgment of the trial court is affirmed.


author: ELLIS, Chief Justice.

text:
    GUARANTEE INSURANCE COMPANY OF TEXAS, Appellant, v. George E. BOGGS, Appellee.
    No. 8551.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 29, 1975.
    Rehearing Denied Sept. 22, 1975.

      Bradshaw & Bynum, Arlen D. Bynum and Louis J. Sandbote, Dallas, for appellant.
    Merchant & Barfield, J. Jerry Merchant, Amarillo, for appellee.
   ELLIS, Chief Justice.

In this venue case, defendant Guarantee Insurance Company of Texas has appealed from the order of the trial court overruling its plea of privilege to be sued in the county of its residence. Affirmed.

Plaintiff, George E. Boggs, brought suit in Deaf Smith County, Texas, against defendant, Cain Alfaro Valdez, for personal injuries suffered when a vehicle driven by Valdez struck the parked automobile occupied by plaintiff. Plaintiff joined as defendants, Comeo Insurance Company and Guarantee Insurance Company of Texas, pursuant to uninsured motorist coverage alleged to be included in separate policies in force at the time of the collision. Defendant Guarantee filed its plea of privilege to be sued in Dallas County, Texas. From the order overruling its plea of privilege, appellant brings this appeal.

Certain pertinent facts were stipulated by the parties at the plea of privilege hearing: (1) that Lawrence Ray Boggs is the brother of George E. Boggs and that on August 9, 1970 Lawrence Ray Boggs was issued a policy of automobile insurance through La Plata Insurance Agency of Hereford, Texas; (2) that the policy was issued by First National Indemnity Company, for the term of August 9,1970 to August 9, 1971; (3) that at the time Lawrence Ray Boggs was issued the policy, he signed a rejection of the uninsured motorist coverage; (4) that Lawrence Ray Boggs understood the nature of the rejection; (5) that between August 9,1970 and August 9,1971 said policy was assumed, as were all of the automobile policies of First National Indemnity Company, by Guarantee Insurance Company of Texas; (6) that no further rejection of uninsured motorist coverage was signed by Lawrence Ray Boggs and (7) that the two policies of insurance issued to Boggs were identical.

Testimony from the plea of privilege hearing reveals that plaintiff and his brother Lawrence Ray Boggs were partners in the wrecking yard business and that on the occasion in question, plaintiff-appellee had driven a wrecker to near the northern city limits of Hereford, Texas to tow a stalled car from the shoulder of U.S. Highway 385. While appellee reached inside the stalled automobile to take it out of gear, defendant Valdez’ vehicle struck the stalled car and injured the appellee.

In his controverting affidavit appellee contended that subdivisions 23 and 29a of Tex.Rev.Civ.Stat.Ann., art. 1995 (1955), applied to sustain venue in Deaf Smith County. Appellant contends in two points of error that the trial court erred in sustaining venue under either subdivision 23 or 29a.

No findings of fact or conclusions of law were requested or made in this case. Notwithstanding the rule that on appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment, the filing of the plea of privilege placed the burden on the appellee to plead and prove by a preponderance of the evidence the applicability of one or more of the exceptions to the general rule of art. 1995 to the facts of this case. Collins v. F. M. Equipment Company, 162 Tex. 423, 347 S.W.2d 575 (1961); Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825 (1950); Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (1948).

Subdivision 23 provides in substance that suit may be maintained against a private corporation in the county in which the cause of action or a part thereof arose. Thus, to maintain venue in Deaf Smith County under subd. 23, appellee is required to establish a cause of action against appellant, viz., that appellant breached a contract that existed between it and appellee. Employers Casualty Company v. Clark, 491 S.W.2d 661 (Tex.1973); Hightower v. Members Mutual Insurance Company, 494 S.W.2d 285 (Tex.Civ.App.—Waco 1973, no writ). Appellee also had the burden of establishing that negligence attributable to the alleged uninsured motorist was a proximate cause of appellee’s injuries. Hightower v. Members Mutual Insurance Company, supra. Appellee’s cause of action must be based upon uninsured motorist coverage in the policy of the insurance upon which ap-pellee urges that appellant is liable. Members Mutual Insurance Company v. Olguin, 462 S.W.2d 348 (Tex.Civ.App.—El Paso 1970, no writ). By stipulation of the parties, it was established that Lawrence R. Boggs, appellee’s brother, was issued an automobile liability insurance policy the terms of which specifically, by separate agreement, rejected uninsured motorist coverage. The policy is not in evidence. However, it was stipulated that the insurance policy was issued on August 9, 1970 for a term of one year. During that year the policy in question and other policies of First National Indemnity Company were assumed by appellant. Subsequently, the La Plata Insurance Agency, an independent insurance agency in Hereford, contacted Lawrence Ray Boggs to inquire whether he wanted to renew the insurance for another year. Boggs replied that he wanted the insurance for another year, making no request for the addition of uninsured motorist coverage or for any other change in policy coverage.

Tex.Ins.Code Ann. art. 5.06-1 (1967) requires that uninsured motorist coverage be included in all automobile liability insurance policies issued except where the insured rejects such coverage. Art. 5.06-1 provides, further: “. . . [T]hat unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer.”

To determine whether appellee had a cause of action against appellant by virtue of uninsured motorist coverage we must consider whether under art. 5.06-1, the written rejection of uninsured motorist coverage signed by appellee in August, 1970 is effective against the renewal policy of insurance issued on August 9,1971. The language of art. 5.06-1 requires from the insured a written request for uninsured motorist coverage where such coverage was rejected by the insured in connection with a policy previously issued to him by the same insurer. We find no authority construing this particular language of the statute.

An examination of art. 5.06-1 leads us to believe that is was the intent of the legislature to make uninsured motorist coverage a part of every liability insurance policy issued, with certain limited exceptions. The statute begins: “. . . No automobile liability insurance . . . shall be delivered or issued for delivery in this state unless coverage is provided therein or supplemental thereto, . . . ” for protection against uninsured motorists. Because the above general rule is clearly stated, and because of the remedial purpose of uninsured motorist laws, we believe that words providing an exception to the general rule of art. 5.06-1 should be strictly construed. Hamaker v. American States Insurance Co. of Texas, 493 S.W.2d 893 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.); Johnson v. Concord Mutual Insurance Co., 450 Pa. 614, 300 A.2d 61 (1973); Dufresne v. Elite Insurance Company, 26 Cal.App.3d 916, 103 Cal.Rptr. 347 (1972); 55 ALR 3d 206 (1974). In Johnson v. Concord Mutual Insurance Co., supra, the Supreme Court of Pennsylvania recognized that uninsured motorist statutes evolved from public policy considerations and must be broadly and liberally construed. The court held that, conversely, words in the uninsured motorist statute permitting the rejection of uninsured motorist coverage must be narrowly and strictly construed. The language of the uninsured motorist statute before the Court in Johnson is almost identical to that in art. 5.06-1.

The California Court of Appeal in Dufresne v. Elite Insurance Company, supra, held that the uninsured motorist statute of that state . . must be liberally construed to carry out its objective of providing financial protection for bodily injury caused by uninsured motorists . and, as a corollary, ‘any exception or exclusion must be strictly construed.’ ” Id. at 351. The Court declared that since the legislature had provided specific means of rejecting uninsured motorist coverage, only by strict adherence to the method prescribed by the legislature can rejection of coverage be accomplished. Proper construction of the statute would apply the exception sparingly. Therefore, it is our opinion that the words “policy previously issued to him by the same insurer” given their ordinary signification as required by the rules of construction set out in Tex.Rev. Civ.Stat.Ann., art. 10, must be taken to mean, literally, previously issued by the same business entity. Here, it is not urged that First National and appellant Guarantee are the same business entity. They are, in fact, separate and distinct entities, and we hold that the insurance policy renewed by appellant in this case, even though on identical terms, is not a renewal by the same insurer which issued the original policy within the meaning of art. 5.06-1.

That the alleged uninsured tortfeasor was in fact uninsured at the time of the collision was undisputed in testimony by the defendant, Valdez.

In view of our holding that the rejection of uninsured motorist coverage signed by Lawrence Boggs was ineffective against the renewal policy issued by appellant Guarantee, by operation of law uninsured motorist coverage will be included in the policy in force at the time of the collision. Allstate Insurance Company v. Hunt, 469 S.W.2d 151 (Tex.1971). Appellant does not contend that the liability policy was not in full force and effect at that time.

Our examination of the record reveals adequate evidence to support findings that defendant Valdez’ alleged negligence was the proximate cause of appellee’s injuries. Although appellant contends there is no proof that the asserted cause of action arose in Deaf Smith County, it is our opinion that the trial court was entitled to judicially notice that the accident took place in Deaf Smith County by virtue of the testimony that the collision in question took place along U.S. Highway 385 at about the Hereford, Texas city limits, near the intersection with 16th Street. See Barber v. Intercoast Jobbers & Brokers, 417 S.W.2d 154 (Tex.1967).

We hold, therefore, that the pleadings and evidence support the order of the trial court overruling appellant’s plea of privilege under subd. 23 of art. 1995. Appellant’s point of error number one is overruled. We do not reach appellant’s second point of error since we have determined that venue is maintainable in Deaf Smith County under subd. 23.

Accordingly, the order of the trial court overruling appellant’s plea of privilege is affirmed.


author: REYNOLDS, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Bob HAUNSCHILD, Appellee.
    No. 8566.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 29, 1975.
    Rehearing Denied Sept. 22, 1975.

      Gibson, Ochsner, Adkins, Harlan & Han-kins, S. Tom Morris, Amarillo, Vial, Hamilton, Koch, Tubb, Knox & Stradley, for appellant.
    Charles H. Smith and C. L. Mike Schmidt, Jr., Dallas, for amicus curiae.
    Edwards, Smith & Associates, Thomas S. Hoekstra, Amarillo, Thompson, Knight, Simmons & Bullion, David S. Kidder, Dallas, for amici curiae.
   REYNOLDS, Justice.

In this workmen’s compensation case the trial court, after disregarding jury findings that a prior compensable general injury contributed sixty-five percent to the workmen’s incapacity following the general injury in suit, entered judgment awarding full compensation for the present incapacity. The sole question presented is whether, after the 1971 amendment to the Texas Workmen’s Compensation Act, the insurance carrier’s liability for a general injury incapacity is still reduced by the percentage of incapacity contributed by a prior com-pensable general injury. We hold that it is not. Affirmed.

The facts of the case may be stated briefly. From a November 10, 1972 fall during his employment by Armour & Co., Bob Haunschild received low back and neck injuries for which medical care and workmen’s compensation benefits were provided by Texas Employers’ Insurance Association. In April of 1973, Haunschild returned to work where, on July 10, 1973, he slipped while going down stairs and suffered injury. He received medical treatment which included two operations on his neck. He had not returned to work at the time of the trial in November of 1974.

The jury found that Haunschild’s July 10, 1973 injury produced partial incapacity from July 12,1973, through October 1,1973, produced total incapacity beginning October 2, 1973, and ending January 28, 1975, and produced partial incapacity beginning January 29,1975, and ending June 29,1975. The jury found further that Haunschild’s November 10,1972 injury contributed sixty-five (65%) percent to his present incapacity.

T.E.I.A.’s motion for judgment on the verdict, the granting of which would have resulted in a judgment for $1,775.75, was denied. Haunschild’s motions to disregard the jury’s findings of contribution by his prior injury and for judgment on the remainder of the verdict were granted, the trial court entering judgment in Haun-schild’s favor for $5,073.47.

Prior to Haunschild’s first injury, the legislature amended, effective September 1, 1971, Sections 12c and 12c-l of Vernon’s Ann.Civ.St. art. 8306, to read:

Sec. 12c. If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable for all compensation provided by this Act, but said association shall be reimbursed from the “Second Injury Fund” as hereinafter described, to the extent that the previous injury contributes to the combined incapacity.
Sec. 12c-l. If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently and totally incapacitated through the loss or loss of use of another member or organ, the association shall be liable for all compensation provided by this Act, not to exceed 401 weeks, but said association shall be reimbursed from the “Second Injury Fund,” as hereinafter described, to the extent that its payment exceeds the amount due for the second injury as above set out.

Thereafter, there came before the- Supreme Court the case of Transport Insurance Company v. Mabra, 487 S.W.2d 704 (Tex.1972), which arose and was decided under the law existing before the amendment, presenting procedural and evidential issues bearing on the propriety of diminishing the claimant’s recovery for general injury incapacity by the percentage of the incapacity contributed by a prior compensable general injury. In approving the diminution, the Court made passing reference to the 1971 amendment in this language:

A statute, since amended, provided for a diminution of recovery because of a previous incapacity. Section 12c, Article 8306.
* * ⅜ * * *
In order for there to be a reduction in the amount of the award under the old Section 12 of Article 8306 under which this case was tried, the previous injury must have been one which was compensa-ble under the workmen’s compensation law. St. Paul Fire & Marine Ins. Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744 (1962). . . .

Following the 1971 amendment, there appears to be only one appellate decision addressing the question before us. In Texas Employers’ Insurance Association v. Creswell, 511 S.W.2d 68 (Tex.Civ.App.—Eastland 1974, writ ref’d n.r.e.), the court declared:

We hold, under the amended section 12c, that proof of a prior compensable injury will no longer reduce the recovery of a workman because of such prior injury-

Notwithstanding the Creswell declaration, T.E.I.A. contends that the 1971 amendment did not make it liable for all compensation provided for the combined incapacity produced by multiple compensable general injuries. T.E.I.A. initially suggests that Creswell merely states a holding and, since no attention whatsoever was given there to the problems of statutory construction, the holding is not entitled to weight and we should make an independent analysis to determine the scope of the 1971 amendment. The analysis is proper, T.E. I.A. submits, because by applying the rules for statutory construction it will reveal that the legislature, while imposing full liability on the carrier for the combined effects of specific injuries producing total and permanent incapacity, did not change the law which permitted the carrier a deduction for the incapacity contributed by a prior com-pensable general injury.

To the extent that the declaration in Creswell was not necessary to dispose of the appellate issues set out in the opinion, the declaration is probably dictum. It is proper, therefore, that we independently consider the question in the light of the various facets of T.E.I.A.⅛ contention.

A provision in the 1917 Texas Workmen’s Compensation Act, codified as Vernon’s Ann.Civ.St. art. 8306, and reproduced as marginal note l, limited the workmen’s compensation insurance carrier’s liability, in the event the injured workman had suffered a condition of incapacity attributable to both a prior and a subsequent injury, to the compensation to which the workman would have been entitled had there been no previous injury. The plain terms of the proviso caused the court, in Gilmore v. Lumbermen’s Reciprocal Ass’n., 292 S.W. 204 (Tex.Com.App.1927, jdgmt. adopted), to limit the carrier’s liability to the compensation specified for the loss of sight in one eye resulting from the employment injury, although that injury, coupled with preem-ployment accidental loss of sight in the other eye, produced a condition defined in another provision of the Act as conclusive of total and permanent incapacity. The court rationalized that the legislature, choosing between encouraging employment of a person partially disabled from a prior injury or adequately compensating a partially disabled workman who becomes disabled from the combined effects of a prior and a subsequent injury, opted for the policy of encouraging employment by enacting Sec. 12c limiting liability of the carrier to the disability produced by the subsequent injury.

Gilmore settled the law that, in situations of specific injuries, Sec. 12c applied to limit the carrier’s liability to the compensation for the second injury; however, after the pronouncement in Texas Employers’ Insurance Ass’n. v. Clark, 23 S.W.2d 405 (Tex.Civ.App.—Eastland 1929, writ dism’d), that the word “injury” is used in Sec. 12c to mean a compensative injury under the workmen’s compensation law, See. 12c did not operate in cases of separate general injuries to reduce the carrier’s liability to pay for all disability produced by the second injury unless the first injury was compensa-ble. See Miears v. Industrial Accident Board, 149 Tex. 270, 275, 232 S.W.2d 671, 674 (1950). If the prior general injury was compensable, the operation of Sec. 12c entitled the carrier to proper jury issues determining the liability of the carrier only for the incapacity produced by the subsequent general injury. Accord, Sowell v. Travelers Insurance Co., 374 S.W.2d 412, 413 (Tex.1963). Thus, from the judicial construction given Sec. 12c by Gilmore and Clark, their progeny perpetuated the apparent conflict in applying the statute; Sec. 12c was applied literally to all cases of multiple specific injuries, but in cases of multiple general injuries it was not made applicable unless the prior (and later, a subsequent) injury was compensable.

In 1947, the legislature moved to correct the inadequacy of the compensation award without discouraging employment of the physically handicapped. As copied in marginal note 2, Sec. 12c was re-enacted with an addendum referring to the creation of a “Second-Injury Fund” from which the employee who suffered a subsequent injury “shall be compensated for the combined incapacity resulting from both injuries.” There was added Sec. 12c-l, reproduced as marginal note 3, distinctly declaring that if an employee, having previously suffered a specific injury, becomes permanently and totally incapacitated as the result of another specific injury, the carrier is liable to the employee only for the compensation payable for the second specific injury, and the second-injury fund is liable to the employee for the remainder of the compensation due for the total permanent incapacity. The mechanics of the creation of the “Second-Injury Fund” were set forth in a new Sec. 12c-2.

In speaking to the 1947 amendment in Miears v. Industrial Accident Board, supra, the Supreme Court reaffirmed the applicability of Sec. 12c as construed in Gilmore to separate specific injuries, and referred to, but declined to decide, the unraised question whether the amendment had the effect of changing the meaning to be given to the word “injury” as used in Sec. 12c. Twelve years later in St Paul Fire & Marine Insurance Company v. Murphree, 163 Tex. 534, 357 S.W.2d 744, 749 (1962) the Court confirmed that the word “injury” as used in Sec. 12c in relation to general injury means a compensative injury and stated, “Unless the prior general injury is one for which compensation is provided under the terms of the statute, the insurer’s or carrier’s liability cannot be reduced by reason thereof.” Murphree also established that the carrier was not liable for the incapacity contributed by a compensable general injury subsequent to the general injury in litigation. Then, in 1963, in Sowell v. The Travelers Insurance Co., supra, the Court held that under Sec. 12c the carrier was entitled to a determination of the percentage of incapacity contributed by prior compensable specific and general injuries, stating: “Section 12c makes no distinction between specific and general injuries, and we are unwilling to write such a distinction into the statute.”

In the interval between the decision in Miears and the decisions in Murphree and Sowell, the Supreme Court considered in Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711 (1961), the question whether the second-injury fund was liable where the injured workman sustained partial and permanent incapacity from general injuries. According to the court of civil appeal’s opinion, Keaton had sustained in a football game a non-compensable general injury to his left leg, which was further injured in an automobile accident, and aft-erwards, while he was in the course of his employment, Keaton sustained a compensa-ble general injury to his right leg. After Keaton and his employer’s insurance carrier had compromised and settled his claim for the compensable injury to his right leg, Keaton sought to recover from the second-injury fund the remainder of the compensation for the stipulated partial and permanent incapacity produced by the combination of that compensable general injury and the prior non-compensable general injury to his left leg. Keaton based his cause of action against the second-injury fund on Sec. 12c.

The trial court and the intermediate appellate court decreed that Keaton could recover from the second-injury fund the difference between the compensation provided for the combined incapacity and the amount of his settlement with the carrier. The court of civil appeals held that recovery was authorized by Sec. 12c, which contains no language requiring the combination of two injuries to produce total and permanent disability, and that Sec. 12c-l, referring to specific injuries producing total and permanent disability, was inapplicable to the facts of the case. The Supreme Court disagreed, holding that the amendment did not permit recovery from the second-injury fund for partial and permanent disability resulting from general injuries. Concluding from the statutory language that the legislature intended only specific injuries producing total and permanent incapacity would give rise to liability on the part of the second-injury fund, the Court wrote:

. Section 12c does not create a cause of action within itself. The bounds of liability are only found in Section 12c-l of Article 8306, supra. The restrictive provisions of Section 12c-l, supra, limit the liability of the Second Injury Fund to situations involving a combination of specific injuries resulting in total and permanent incapacity. Neither combinations of general injuries nor injuries resulting in partial disability are compen-sable from the Second Injury Fund.

Parenthetically, it is noteworthy that, insofar as the Keaton opinions reveal, no consideration was given to the thought that Sec. 12c was inapplicable as a basis for Keaton’s cause of action in the light of the pronouncement in Texas Employers’ Ins. Ass’n. v. Clark, supra, (as well as in Murphree, written by Justice Smith after he authored the Supreme Court’s opinion in Keaton), that the statute did not apply unless the prior general injury was compen-sable under the workmen’s compensation act. Under that prevailing authority, the non-compensable character of Keaton’s pri- or general injury rendered Sec. 12c inapplicable and resulted in the carrier being liable for all incapacity for which the subsequent general injury was the producing cause. Thus, the payment of compensation by the carrier for that incapacity would discharge all liability for the combined effects of the two injuries.

At this stage of the law under the 1947 amendment, the legislature moved to enact, without stating the specific reason for, the 1971 amendment. Re-enacted in the same language was that portion of Sec. 12c directed to the condition of incapacity contributed to by multiple injuries, which the courts consistently had held to be applicable when separate compensable general injuries combined to produce the present incapacity; however, the legislature amended the portion of the statute pertaining to the carrier’s liability by substituting the words for all compensation provided by this Act in lieu of the previous words for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury.

In viewing the amendment, the cardinal rule as expressed in V.A.C.S. art. 10, subd. 6, is to “look diligently for the intention of the- Legislature, keeping in view at all times the old law, the evil and

the remedy.” Generally, the intent is obtained primarily from the language of the statute, Magnolia Petroleum Co. v. Walker, 125 Tex. 430, 83 S.W.2d 929 (1935), and usually words in common use are to be considered in their natural, plain and ordinary signification. Winder v. King, 1 S.W.2d 587 (Tex.Com.App.1928). There is, however, the exception that when the legislature has not defined a word whose meaning has been construed by the courts, it is presumed that the legislature, in using the word without defining it in the enactment of a statute pertaining to the same subject matter, deliberately intended the word to carry the meaning theretofore given it by the courts. McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125 (1942); Smith v. Texas Co., 53 S.W.2d 774 (Tex.Com.App.1932, holding approved). Moreover, all statutes are presumed to be enacted by the legislature with full knowledge of, and with reference to, the existing conditions of the law. McBride v. Clayton, supra.

Prior to the 1971 re-enactment of the unchanged portion of Sec. 12c, it had been the subject of judicial construction. By construing the word “injury” in this portion of the statute to mean a compensable injury under the Act, the courts made the statute applicable to cases of multiple general injuries where, as here, the prior general injury was compensable. The legislature was chargeable with this knowledge and if it had intended the word “injury” to carry a different meaning in the enactment, it would have been a simple matter to so state. The presumption, then, is that the legislature intended the re-enactment to apply as it had been judicially construed. Chargeable with this knowledge, the legislature then employed plain, ordinary words to provide that the carrier shall be liable for all compensation provided by the Act for the combined incapacity. Consequently, we hold that the workmen’s compensation insurance carrier’s liability for the incapacity produced by the combined effects of multiple general injuries is not reduced by the percentage of incapacity contributed by compensable general injuries other than the one in suit.

We should note that an amicus curiae brief in support of T.E.I.A.’s position urges that we construct a judicial doctrine permitting a reduction of liability in cases of multiple compensable general injuries in the same manner that the judicial doctrine was created to permit a reduction for subsequent compensable general injuries which are not mentioned in the statute. In other words, it is suggested that Sec. 12e not be made applicable to a prior (or a subsequent) compensable general injury to prevent the unjust enrichment of a claimant who has suffered a previous injury. Implicit in our determination of the legislative intent in enacting the amendment is the conclusion that the legislature did not intend that Sec. 12c be given this meaning.

To hold, as we have, that in a general injury case the carrier is not entitled to a reduction for the percentage of incapacity contributed by another compensable general injury is, in T.E.I.A.’s view, erroneous for two reasons. First, T.E.I.A. directs our attention to the title of the amendment which, so far as material here reads:

An Act amending the employers’ liability and workmen’s compensation laws of this State; amending Sections 12c, 12c-l and 12c-2 of Article 8306, Revised Civil Statutes of Texas, 1925, as amended, to make the Texas Employers’ Insurance Association liable for all compensation in Second Injury Fund cases but allowing reimbursement from the Second Injury Fund to the extent the previous injury contributed to the combined incapacity;

Then T.E.I.A. argues that a consideration of this caption, and particularly the second clause thereof, with the provisions of the amendment, and particularly Sec. 12c-l thereof, reflects that the legislature changed the carrier’s liability only in second-injury fund cases. This is because, T.E.I.A. further argues, the caption states the amendment is to make the carrier liable for all compensation in second-injury fund cases and Sec. 12c-l directed to specific injuries resulting in total and permanent disability is, as held in Keaton, the only provision which gives a right of recourse against the second-injury fund. Otherwise, T.E.I.A. concludes, there is imposed upon it a liability to pay twice for the first general injury without any reimbursement from the second-injury fund which is not liable in cases of general injuries.

Whether the language used to amend the carrier’s liability had the effect of making all situations of multiple injuries second-injury fund cases, as Haunschild would have us hold, so that the carrier may be reimbursed from the second-injury fund is a matter we do not reach. That collateral matter is not a decidable issue necessary to the decision we have reached under the facts of this case; it is a matter that should be considered and resolved in a case directly presenting that question. Suffice it to state, however, that any consideration of the consequences of the new Sec. 12c does not justify a departure from the meaning of the words the legislature used to express its intent, Winder v. King, supra, even if it should appear that the statute is impracticable, State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279 (1958), or that it may operate somewhat unequally on contending litigants. San Antonio General Drivers, Helpers Local No. 657 v. Thornton, 156 Tex. 641, 299 S.W.2d 911 (1957).

Second, T.E.I.A. says that if Sec. 12c is construed, as we have, to impose liability on the carrier for all incapacity produced by the combined effects of general injuries, the section violates Article 3, Section 35, of the Texas Constitution by imposing a new liability contrary to the title of the amendment. As pertinent to the issue here., Sec. 35 of Art. 3 provides that no bill shall contain more than one subject which shall be expressed in its title, and any subject embraced in the bill that is not expressed in the title shall be void.

The manifest purpose of Art. 3, Sec. 35, is to require the caption of a bill to give the members of the legislature and the public reasonable notice of the object and scope of the law so as to prevent fraud and deception in the enactment of laws. While the constitutional provision operates to void any provision of a statute that is not expressed in its title, the provision does not require the title to be as full as the bill itself. Central Education Agency v. Independent School Dist. of City of El Paso, 152 Tex. 56, 254 S.W.2d 357 (1953). It requires only that the title state the general subject; it need not explain the details. Robinson v. Hill, 507 S.W.2d 521 (Tex.1974). “It is sufficient if the provisions of the statute relate, directly or indirectly, to the same subject, have a mutual connection, and are not foreign to the subject expressed in the title.” Central Education Agency v. Independent School Dist. of City of El Paso, supra.

Tested by the challenge, the statute does not impose a new liability that is contrary to its title. Although the title is more specific with reference to the carrier’s liability in second-injury fund cases, the title is not deceptive. It sufficiently expresses the general subject of the carrier’s liability in workmen’s compensation cases to be amended by the legislature. The statutory provisions are of the same nature, they have a mutual connection, and they are not foreign to the subject expressed in the title. We, therefore, cannot say that Sec. 12c is unconstitutional.

The judgment of the trial court is affirmed.

      . Sec. 12c. If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury.

      . Sec. 12c. If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association (Texas Employers’ Insurance Association) shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury; provided that there shall be created a fund known as the “Second-Injury Fund” hereinafter described, from which an employee who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries.

      . Sec. 12c-l. If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently and totally incapacitated through the loss or loss of use of another member or organ, the association shall be liable only for the compensation payable for such second injury provided, however, that in addition to such compensation and after the combination of the payments therefor, the employee shall be paid the remainder of the compensation that would be due for the total permanent incapacity out of the special fund known as “Second-Injury Fund,” hereafter defined.