author: ROBERTSON, Justice. CARVER, Justice,

text:
    FIDELITY & GUARANTY INSURANCE UNDERWRITERS, INC., Appellant, v. Michelle La ROCHELLE, Appellee.
    No. 19830.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 28, 1979.
    Rehearing Denied Oct. 2, 1979.

      C. Edward Fowler, Jr., Milam Randolph Pharo, Bailey, Williams, Westfall, Lee & Fowler, Dallas, for appellant.
    John T. McCully, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   ROBERTSON, Justice.

Appellee Michelle La Rochelle sued appellant Fidelity & Guaranty Insurance Underwriters, Inc. on a worker’s compensation claim. Trial was to a jury which found in favor of the insured employee-appellee, and judgment was rendered on the verdict for her. On appeal, appellant asserts that a special issue concerning injury was not a correct issue, that appellee was not in the course of her employment and that there was no causal connection between the act and the injury. We hold that the special issue submitted by the trial court was not proper, but overrule appellant's other contentions, and, accordingly, we reverse and remand.

The record réflects that nine months before the injury claimed in the present case appellee injured her lower back while working for a different employer. Appellee’s injury was diagnosed as a protruding disc. Although surgery was suggested, she opted for several months bed rest and later returned to work. In July of 1976, appellee became an employee of Del-Mar Scientifics, Inc., where she built monitors and detectors for hydrogen-sulfide gas. A ping-pong table was available to the employees for recreation during lunch and various other work breaks during the day. On November 8, 1976, during an afternoon work break, appellee engaged in a game of ping pong in the building next to the one in which she worked, but on her employer’s premises. Shortly after the game, she experienced pain in her lower back. Appellee was again treated for a disc condition and this time underwent surgery. During the course of the operation, a degenerated disc condition was discovered, two discs were removed and a fusion was performed. Appellee initially filed a group-health insurance claim with Del-Mar’s insurance carrier and a worker’s compensation claim against her former employer, contending that the disc condition was the result of the earlier injury in February 1976. Appellee later filed this worker’s compensation suit against Del-Mar and appellant, claiming that she had sustained an “accidental” injury during the course of her employment as a result of the November 8, 1976 ping pong game.

Appellant contends that the trial court erred in submitting special issue no. 1 which stated:

Do you find from a preponderance of the evidence that Michelle La Rochelle received an injury on or about November 8, 1976? “Injury” means damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom or the incitement, acceleration or aggravation of any disease, infirmity or condition previously or subsequently existing by reason of such damage or harm.

Appellant objected to the submission of this issue on the ground that it failed to inquire as to whether appellee received an “accidental” injury. A proposed special issue asking whether appellee’s injury was accidental and containing a definition of accident was submitted by appellant to the court. The trial court overruled the appellant’s objection and refused to submit its proposed special issue and its instruction defining “accidental” injury, which are as follows:

Do you find from a preponderance of the evidence that MICHELLE LA ROCHELLE received an accidental injury on or about November 19, 1976? Answer: “We do,” or “We do not.” In connection with this Special Issue, you are instructed that “Accidental” means an undesigned or unexpected occurrence, traceable to a definite time and place.

We conclude that Olson v. Hartford Accident and Indemnity Co., 477 S.W.2d 859 (Tex.1972) is controlling; consequently, we hold that the trial court erred in refusing to submit appellant’s proposed special issue and instruction. In Olson, the supreme court stated that to have an accidental injury there must be an undesigned, untoward event traceable to a definite time, place and cause. The cases that have followed Olson hold that the proper issue to submit is one inquiring whether the injury was accidental and should include a definition of “accidental.” See Hartford Accident & Indemnity Co. v. Contreras, 498 S.W.2d 419 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.); Northern Assurance Co. of America v. Taylor, 540 S.W.2d 832 (Tex.Civ.App.—Texarkana 1976, writ ref’d n. r. e.); Select Insurance Co. v. Patton, 506 S.W.2d 677 (Tex.Civ.App.—Amarillo 1974, no writ); Aetna Casualty and Surety Co. v. Shreve, 551 S.W.2d 79 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ). Appellee argues, nevertheless, that the Worker’s Compensation Act does not require an injury to be accidental in origin and cites Aetna Insurance Co. v. Hart, 315 S.W.2d 169, 172 (Tex.Civ.App.—Houston 1958, writ ref’d n. r. e.), which states: “[T]hough many cases speak of an ‘accidental’ injury, there is nothing in the Worker’s Compensation Act which requires that the injury be the result of an accident.” In view of the supreme court’s later decision in Olson, we do not regard Hart as authoritative on this question. As we stated in Ward v. Charter Oak Fire Insurance Co., 567 S.W.2d 934, 936 (Tex.Civ.App.-Dallas 1978), rev’d on other grounds, 579 S.W.2d 909 (Tex.1979), we are bound by the supreme court authority, and as an intermediate appellate court, we must defer to its judgment, although, in our opinion, this is an extraordinarily harsh result and places an additional burden on a claimant, not contemplated by the spirit of the Act. In this respect, the cases are legion that require the Act to be construed liberally so as to effectuate the beneficial purpose for which it was enacted. Brantley v. Phoenix Insurance Co., 536 S.W.2d 72 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d).

Since we have held that the trial judge erred in refusing appellant’s special issue and have reversed and remanded for another trial, we must also address appellant’s other points because if they have merit we would render judgment rather than remand. In this respect, appellant challenges the jury’s finding that the injury occurred within the course of the employee’s employment as not being supported by the evidence. We disagree. Tex.Rev.Civ.Stat. Ann. art. 8309, § 1(4) (Vernon 1967) defines “compensable injury” to include:

All other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.

The question presented here is whether playing ping pong is an activity “having to do with and originating in the employer’s business.”

We conclude that a fact issue on this question is presented under the opinion of this court in Clevenger v. Liberty Mutual Ins. Co., 396 S.W.2d 174 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.). In that case the plaintiff sustained injuries while playing baseball at a company-sponsored picnic held at a location away from the employer’s premises. At trial, the trial court sustained the defendant’s motion for instructed verdict holding that the plaintiff was not within the course of his employment at the time of the injury. This court reversed and remanded, stating that the evidence was sufficient to submit an issue to the jury on whether the plaintiff sustained injuries while acting within the course of his employment. This court, quoting with approval Professor Larson in his treatise on Workmen’s Compensation, stated the rule: “Recreational or social activities are within the course of employment when (1) they occur on the premises during a lunch or recreation period as a regular incident to the employment . . . .” 396 S.W.2d at 182. Here, appellee’s employer Del-Mar gave its employees permission to play ping pong on the premises. The employer regulated where the ping pong table was placed and the times during which the employees could play. Ping pong games occurred regularly. We hold that these facts are sufficient to satisfy the definition of the course of employment approved by this court in Clevenger and, thus, the evidence is sufficient to support the jury’s finding that the injury occurred in the course of employment.

A factually similar case was before the Supreme Court of Connecticut in McNamara v. Town of Hamden,-Conn.-, 398 A.2d 1161 (Conn.1979). In McNamara, plaintiff’s injuries occurred while he was engaged in a customary and permitted game of ping pong on the employer’s premises prior to the appointed hour for the start of the work day, using equipment purchased by the employees. The court held that when determining whether the activity is incidental to the employment, the following rule should be applied: “If the activity is regularly engaged in on the employer’s premises within the period of employment with the employer’s approval or acquiescence, an injury occurring under those conditions shall be found to be com-pensable.” The Connecticut court found that the plaintiff had been injured in the course and scope of his employment. In language directly applicable to the present case, that court stated:

The employer sanctioned the games by regulating the permitted playing times by allowing the equipment on the premises, and by setting aside actual work hours in the afternoon for the activity. The games occurred regularly on the premises of the employer. Those facts constitute a sufficient basis on which to conclude that the games were an incident of the employment under the test we now adopt. 398 A.2d at 1166.

We turn now to appellant’s final contention that a causal connection between the act and the injury must be shown and that such connection can only be demonstrated by expert medical testimony, citing Parker v. Employers Mutual Liability Insurance Company, 440 S.W.2d 43 (Tex.1969). In Parker, the court stated that expert medical testimony of a reasonable probability of a causal connection between an act and an injury is sufficient to submit the plaintiff’s issues to the jury. Parker does not stand for the proposition that expert medical testimony is required in worker’s compensation cases to show injury. The courts of this state have long recognized that the opinion of an expert is not conclusive and is not necessary except where matters of scientific fact can be proved only by experts with scientific knowledge. Maryland Casualty Company v. Davis, 464 S.W.2d 433 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.); Angelina Casualty Company v. Spencer, 310 S.W.2d 682, 685 (Tex.Civ.App.—Beaumont 1958, writ ref’d n. r. e.). The factual testimony of a claimant alone can support a finding of disability even though this evidence may be contradicted by the testimony of medical experts. Hartford Accident & Indemnity Co. v. Williams, 516 S.W.2d 425 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.). Generally, the jury should be entitled to decide causation with or without medical testimony in areas of common experience. Northern Assurance Company of America v. Taylor, 540 S.W.2d 832 (Tex.Civ.App.—Texarkana 1976, writ ref’d n. r. e.). We hold, in light of the evidence as to causation, that the common experience and knowledge of the jury was sufficient for it to determine the issue of injury.

Texas case law supports our holding. In Northwestern National Insurance Company v. Kirchoff, 427 S.W.2d 638 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ), the jury found that the plaintiff had sustained an accidental injury to his back. The record reflected that the plaintiff had suffered a similar injury some eighteen months earlier and had undergone unsuccessful back fusion surgery. In his pleadings, plaintiff alleged that he had injured his back when lifting a carton and that the fusion had broken loose. At trial the only medical expert to testify was plaintiff’s surgeon. He stated that no breaking loose of any fusion had occurred because no fusion had resulted from the prior surgery. He also testified that even had a fusion been successful following the operation, the lifting of a carton would not have caused the breaking loose of a fusion. The defendant argued that whether the fusion occurred and was subsequently broken was a question that could be answered only by the testimony of a medical expert. The court held, however, that the plaintiff’s testimony that he was injured was sufficient to support the jury’s finding. The court stated: “The plaintiff was not required to prove the mechanical process by which the physical structure of his body was damaged or harmed, nor, having made that evidentiary allegation, was he confined or limited to proving that his general injury to his back was so brought about.” 427 S.W.2d at 641.

Likewise, in American General Insurance Company v. Smith, 163 S.W.2d 849 (Tex.Civ.App.—San Antonio 1942, writ ref’d), the only testimony of a back injury was given by the plaintiff. Arguing that the evidence was not sufficient to support the jury’s findings of accidental injury, the defendant sought reversal. In rejecting this contention the court stated: “The testimony ... is sufficient to support the jury finding that Smith sustained an accidental injury. The fact that it comes from the injured party alone does not prevent it from having probative force if given credit by the jury.” 163 S.W.2d at 850.

Texas General Indemnity Company v. Bledsoe, 344 S.W.2d 527 (Tex.Civ.App.—San Antonio 1961, writ ref’d n. r. e.) also concerned a back injury. In that case, the defendant challenged the jury’s finding of accidental injury as not being supported by the evidence. The record reflected that the plaintiff threw a “kink” in his back while working one day, but continued to work the rest of that day and the next before telling anyone. The plaintiff also had a history of back problems. Yet the court held that the evidence was sufficient to support the jury’s findings. These cases all stand for the proposition that whether a person has injured his back is a question that the jury by its own experience and knowledge can answer.

Reversed and remanded.

CARVER, Justice,

dissenting.

I dissent. My colleagues correctly decided that an issue and definition of “accidental injury” was required by the pleadings and the evidence and reversed the trial court judgment for their absence.

I am convinced, however, that my colleagues erred in further holding that a ping-pong game, merely permitted or tolerated by an employer at work breaks, was a setting in which an injury (if any) could be labeled as “having to do with and originating in the work, business, trade or profession of the employee” or was received by an employee “while engaged in or about the furtherance of the affairs or business of his employer” as required by our Compensation Act Tex.Rev.Civ.Stat.Ann. art. 8309 § 1(4) (Vernon 1967). My colleagues rely on a text, Larson’s “Workman’s Compensation” whose author honestly footnotes a difference of opinion in other jurisdictions while expressing his own opinion in the text. The author does not rest his opinion on Texas cases nor can my colleagues. Clevenger v. Liberty Mutual Ins. Co., 396 S.W.2d 174 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.), relied upon by my colleagues, involved a company picnic case at which attendance (and playing baseball out of which the injury arose) was so strongly urged by Cleven-ger’s superiors that he feared for his job if he didn’t attend and play ball. Judge Williams’ opinion correctly held the employer had intentionally made the picnic a part of Clevenger’s job and thus its risks were covered under the Compensation Act. Judge Williams’ quote from the Larson text, more broad than the facts before him, is not to be deemed binding on this court. Correctly assessed, Clevenger supports a conclusion that recreation (and its risks) are not a part of the job unless the employer makes it so. This test has been consistently applied in Texas. In Campbell v. Liberty Mutual Ins. Co., 378 S.W.2d 354 (Tex.Civ.App.—Eastland 1964, writ ref’d n. r. e.), the employer did not make a company picnic compulsory, or useful to some business purpose, but merely invited attendance at the employee’s choice; thus, an employee’s death by drowning while at the picnic was not covered by the Compensation Act. In Employer’s Mutual Liab. Ins. of Wis. v. Sanderfer, 382 S.W.2d 144 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.), the employer did make a recreational hunting trip a part of the job when he sent an employee to a hunting lodge to mingle with customers and prospective customers of the employer; thus, the employee’s accident was covered by the Compensation Act. In Southern Cas. Co. v. Ehlers, 14 S.W.2d 111 (Tex.Civ.App.—San Antonio 1929, no writ), the employer did not make going to a dance or being injured in departing therefrom a part of the job of delivering a sold car to a distant town; thus, the Compensation Act did not apply. The foregoing cases are all the Texas authorities found in point and this court is not, in my opinion, free to disregard them for a text dependent upon authorities in foreign jurisdictions. I would hold that recreation chosen by an employee, at any location, merely permitted or tolerated by the employer, does not “have to do with’’ or “originate” in the work, trade or profession of the employer. Nor is an employee’s injury, while engaged in recreation of his own choice, without compulsion by his employer, received “while engaged in or about the furtherance of the affairs or business of his employer,”

I am also convinced that my colleagues erred ’ in holding that the claimant, with only ordinary human experience, can prove an “injury” occurred when absolutely nothing happened from which an injury could ordinarily be inferred by the use of common sense and experience. This claimant during prior employment suffered a ruptured disc in.February 1976 as diagnosed by objective medical tests. This same ruptured disc, and an adjacent degenerated disc, was confirmed and repaired by surgery in December 1976, yet the claimant, and only the claimant, testified that her disability related to a no-event ping-pong game in November 1976 at her current employment although surgery failed to reveal any injury but the February rupture. I would conclude that neither ordinary human experience nor common sense, supports the claimant’s conclusion nor, in fact, the opposite conclusion. I would deem that any conclusion as to the cause in fact of the disability of the claimant under these circumstances, could only be shown, if at all, by competent medical testimony as directed by our supreme court in Parker v. Employers Mutual Liberty Insurance Company of Wisconsin, 440 S.W.2d 43 (Tex.1969). A surgically confirmed single ruptured disc cannot support a claim against one employer in February and a second claim against a second employer in November.

Remand might be suitable in this case, if the only issues were directed to the correct proof on the cause of disability and a correct charge on accidental injury. However, retrial is not necessary to develop further the already sufficient facts compelling the exclusion of permissive recreational injury from coverage under our Compensation Act. I would reverse and render on the ground that accidental injury during work-break recreation, chosen by an employee and merely tolerated by the employer, is not a risk covered by our Compensation Act.


source: Caselaw Access Project

author: HUMPHREYS, Justice.

license: Public Domain

text:
    William Dean NEESE, Appellant, v. FIDELITY UNION LIFE INSURANCE COMPANY, Appellee.
    No. 19941.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 28, 1979.
    Rehearing Denied Oct. 5, 1979.

      R. W. (Bill) Glenn, Law Offices of Glenn & Houser, Plano, for appellant.
    James S. Pleasant, Wesner, Wylie & Pleasant, Dallas, for appellee.
    Before AKIN, ROBERTSON and HUM-PHREYS, JJ.
   HUMPHREYS, Justice.

William Dean Neese, appellant, a non-resident, was sued by Fidelity Union Life Insurance Company, appellee, on his endorsements of forty-two promissory notes. Neese appeals from a judgment against him in the sum of $64,884.99, plus $10,000.00 attorney’s fees. Appellant contends the trial court erred in overruling his special appearance objecting to the jurisdiction of the court and in failing to set aside an interlocutory judgment which was rendered against appellant September 14 in appellant’s absence. We affirm the overruling of appellant’s special appearance but we reverse the judgment because no record was made of the proceedings of September 14 leading to an interlocutory judgment of liability and the subsequent trial held on September 22 did not cure the error.

Appellant, a doctor of osteopathy and resident of the state of Missouri, was a life insurance soliciting agent for appellee. His applicants financed these transactions in part by signing negotiable promissory notes payable to Fidelity Union in Dallas, Texas. As a part of their arrangement, evidenced by an agent’s agreement between the parties, Neese borrowed money from appellee as an advance against future commissions by guaranteeing the maker’s obligation. Upon default of these notes, appellee brought suit against appellant on his endorsement on some notes and on his guaranty in his agency agreement on the others.

Appellant was served under Tex. Rev.Civ.Stat.Ann. art. 2031(b) (Vernon 1964), the Texas Longarm Statute. He attacks the trial judge’s denial of his special appearance on the ground that the evidence fails to support the order. This contention lacks merit because the record reveals sufficient evidence to support the court’s findings that appellant’s contacts with Texas were far more than minimal. Appellee’s proof establishes that in 1974, Neese had executed two supplements to his agent’s agreement with ’ Fidelity Union and each provide “all the Agent’s obligations and duties to the Company are performable in Dallas County, Texas.” Neese had been a duly licensed agent to solicit sales of life insurance in Texas since 1975. He obtained his license by passing a written qualifying examination conducted by the Texas Board of Insurance. In 1974, Neese met in Dallas, Texas, with the vice-president and an associate vice-president of Fidelity Union to discuss Neese’s plans and proposals for setting up an arrangement for an insurance agency in Dallas, Houston and San Antonio, Texas, not only to sell Fidelity Union’s life insurance but also to include a complete financial service concept for doctors of osteopathy. In 1975, appellant attended a sales promotion meeting in Dallas conducted by appellee and on that occasion received Fidelity Union’s “Rookie of the Year Award.” He wrote a number of letters to appellee in Dallas regarding specific sales of policies of insurance and his commissions. Moreover, it is undisputed that the promissory notes endorsed by Neese and sued on in this litigation are payable in Dallas, Texas. These contacts with Texas are sufficient to establish jurisdiction in Texas over defendant so as to comport with due process. Michigan General Corp. v. Mod-U-Kraf Homes, 582 S.W.2d 594 (Tex.Civ.App.—Dallas 1979); National Trucker Service, Inc. v. Aero Systems, Inc., 480 S.W.2d 455, 458-59 (Tex.Civ.App.—Fort Worth 1972, writ ref’d n. r. e.). Thus, the trial judge correctly overruled appellant’s special appearance.

We reverse the judgment, however, because the trial in appellant’s absence was not recorded, thus depriving appellant of an adequate appellate review. On September 14 when this case was called for trial, appel-lee announced ready, but neither the appellant nor his attorney appeared. Appellee concedes that no evidence was introduced on September 14; nevertheless, the trial judge rendered an interlocutory judgment against Neese as to liability and recessed the case “subject to call by the Court.” Consequently, no statement of facts is available. We agree with appellant that the court reporter should have recorded this proceeding which resulted in an interlocutory judgment of liability against him, or some other method of recording the evidence should have been employed. Due to the absence of a statement of facts, appellant has been deprived of his right to an adequate review, and the judgment must be reversed and the cause remanded for trial. Rogers v. Rogers, 561 S.W.2d 172, 173 (Tex.1978); Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312, 315 (Tex.Civ.App.—Dallas 1975, writ ref’d).

Appellee argues there was no error in failure to have a court reporter record the proceeding on September 14 because appellant had a complete trial on September 22, which was recorded by the court reporter and in which appellant's attorney participated. We cannot agree that this was a full trial on liability as well as damages. The record reveals that at this trial most of the notes upon which appel-lee’s suit was based were not introduced into evidence. Although appellant did not deny execution of these notes in his pleadings, his general denial required appellee to prove his case by introducing these notes into evidence. See generally, Tex.R.Civ.P. 93(h); VanHuss v. Buchanan, 508 S.W.2d 412, 414 (Tex.Civ.App.—Fort Worth 1974, writ dism’d); Hinn v. Continental National Bank of Fort Worth, 495 S.W.2d 286, 289 (Tex.Civ.App.—Fort Worth 1973, no writ). Because all of the notes upon which liability depends were not introduced into evidence at the September 22 hearing, insofar as we know appellant’s liability on each note has yet to be established. Consequently, we hold that the September 22 proceeding did not cure the error in failing to have the September 14 hearing recorded.

Affirmed with respect to the order overruling the special appearance but reversed and remanded for trial on the merits.


author: CARVER, Justice.

text:
    BAYLOR UNIVERSITY MEDICAL CENTER, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 19896.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 29, 1979.
    Rehearing Denied Oct. 2, 1979.

      Catherine A. Gerhauser, Burford & Ry-burn, Dallas, for appellant.
    Michael L. Parham, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appel-lee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   CARVER, Justice.

This appeal concerns the “Hospital Lien Statute,” Tex.Rev.Civ.Stat.Ann. art. 5506a (Vernon 1975). Baylor sued Travelers to enforce liens for services to a patient arising from an accident with a driver who was insured by Travelers. Travelers settled with the injured patient, but ignored Baylor’s liens. The trial court allowed Baylor’s lien for the first hospital admission but found it was discharged by payments from the patient and his insurer. Baylor appeals the denial of relief on the patient’s second, third, and fourth admissions on the ground that such admissions were shown to be necessary for treatment of injuries arising from the accident and thus falling within the ambit of article 5506a. Travelers, by crosspoints, complains of the trial court’s admission of hospital records, admission of testimony from a filed, but unsigned, deposition, and admission of alleged inadmissible opinion evidence on the reasonableness of the hospital charges. We reverse the judgment that Baylor take nothing and render judgment for Baylor. We hold that since the first hospital admission was within the seventy-two hour period required by the statute and all admissions were necessary due to injuries sustained in the accident, the payment of these hospital charges are secured by the hospital’s liens. We further hold that the trial court’s admission of evidence about which Travelers complains was correct.

Jewel Chester Denmark was involved in an automobile accident in Rockwall County with John Oliver Culpepper. Denmark was immediately admitted to Baylor Hospital in Dallas County for treatment for the injuries he received in the accident. He was released but later re-admitted on three additional occasions for treatment relating to the same injuries. After each admission, a lien for the accrued charges was perfected by filing a claim in Rockwall County where the accident occurred in accordance with the statute. Meanwhile, Denmark was pursuing a claim for his injuries against Cul-pepper and Culpepper’s insurance carrier, Travelers. While these parties were negotiating a settlement, Baylor informed Travelers of its hospital liens and furnished copies of them to Travelers. Nevertheless, Travelers paid $10,000 to Denmark in settlement without deducting the funds secured by these liens.

The trial court found that Denmark’s first admission to Baylor was protected by its lien, but no recovery was given because payments by Denmark and his personal insurance carrier exceeded the bill for the first admission. The trial court concluded that the second, third, and fourth admissions were not protected by the lien because the subsequent admissions of Denmark to Baylor did not occur within seventy-two hours of the accident. Baylor urges the trial court erred in the construction given a proviso in article 5506a § 1:

Section 1. Every association, individual, corporation, or other institution maintaining a hospital or clinic rendering hospital services in the State of Texas shall be entitled to a lien upon any and all rights of action, suits, claims, counter claims, or demands of any persons admitted to any hospital and receiving treatment, care, and maintenance therein, on account of any personal injuries received in any accident as the result of the alleged negligence of any other person or firm or corporation or joint stock association, his, its, or their agent, servant or employee, which any such injured person may or shall have, assert, or maintain against any such other person or firm or corporation or joint stock association for damages on account of such injuries, for the amount of the charges of such hospital or clinic for such treatment, care and maintenance as may have been given to the injured persons. Provided the lien provided for herein shall not exist or attach unless the injured person is received in a hospital within seventy-two (72) hours after the happening of the accident causing the injury, [in which case both the admitting hospital and any hospital to which such injured person may be transferred from the admitting hospital for subsequent treatments of the same injuries for which he was originally admitted shall be entitled to such line.] (Emphasis added, bracketed clause added to the 1933 Act by 1953 amendment).

The undisputed record reflects that Denmark was admitted to Baylor within seventy-two hours of the accident but the nature of his injuries, the variety of the necessary treatment, and the human body’s own need to alternately endure repair and recuperation resulted in the successive admissions for treatment “of the same injuries for which he was originally admitted.” We find the trial court construed the proviso too narrowly and out of context with the whole legislative act. Article 5506a, as a whole, has been construed by this court in Baylor University Medical Center v. Borders, 581 S.W.2d 731 (Tex.Civ.App.—Dallas 1979, no writ) holding: “The legislature’s intent in passing the statute was to provide for payment to the hospital in situations such as this. Giving the hospital a separate cause of action to satisfy its lien insures that an accident victim will receive aid and that the hospital will be reimbursed for its services, thus reducing hospital costs.” Borders also provides a guide for statutory construction: “(1) the court must be governed by the rule of common sense; (2) the intention of the Legislature in enacting a statute is the statute itself and the aim and object of construction is to ascertain and enforce legislative intent and not to defeat, nullify or thwart it; (3) the court must construe a statute as written and, if possible, ascertain its intention from the language used therein and not look for extraneous matters to be used as a basis for reading into a statute an intention not expressed or intended to be expressed therein; (4) if a statute is subject to two interpretations, it should not be given one that would render enforcement impossible; (5) the general rules for the construction of all written instruments apply to the construction of legislative acts.” 581 S.W.2d at 733. We are also aided by examining the original act creating article 5506a in 1933. Tex.Gen. Laws, ch. 85, § 5, at 182 which states:

Sec. 5. The fact that it is necessary for persons injured in accidents to be taken immediately to hospitals and to receive care and treatment for their injuries and to be maintained during such care and treatment without giving the hospitals, clinics and institutions an opportunity to investigate the financial worth of the injured party, and that the hospitals of the State of Texas are losing vast sums of money which amounts to the taking of property without compensation therefor, creates an emergency and an imperative public necessity that the Constitutional Rule which requires bills to be read on three several days be suspended and said Constitutional Rule is hereby suspended, and this Act shall take effect and be in full force from and after its passage, and it is so enacted.

Further aid is found in an act amending article 5506a in 1953. Tex.Gen.Laws ch. 131, § 4, at 443 which states:

Sec. 4. The fact that it is necessary for persons injured in accidents to be taken immediately to hospitals to receive care and treatment for their injuries and to be maintained during such care and treatment, and the fact that the present law is inadequate covering the subject matter of this bill, create an emergency and an imperative public necessity that the Constitutional Rule which requires bills to be read on three several days be suspended; and said Rule is hereby suspended, and this Act shall take effect and be in full force from and after its passage, and it is so enacted. (Emphasis added).

The overriding purpose of article 5506a, as amended, is to induce hospitals to receive a patient, injured by the negligence of others, by giving the hospital a lien on the claims, suit or settlement of the patient. The inducement is for “immediate” (within seventy-two hours) reception of the patient. The inducement is co-extensive with the “treatment, care and maintenance as may have been given to injured persons.” The inducement extends alike to the “admitting hospital and to any hospital to which injured persons may be transferred.” The inducement secures the first administered treatment and “subsequent treatments of the same injuries for which he was originally admitted.” In common sense, there can be no difference in lien rights between: (1) initial admittance at one hospital and subsequent treatments at one or more different hospitals, all as the patient requires and the art of medicine dictates for the injuries received in an accident; and (2) initial admittance at one hospital and subsequent treatments at the same hospital, all as the patient requires and the art of medicine dictates for the injuries received in an accident. We hold, therefore, that the seventy-two hour requirement concerns the initial hospital admission and not subsequent admissions for treatment of injuries received in the same accident. To hold to the contrary would thwart the overriding purpose of the statute. We reverse the trial court’s disallowance of Baylor’s liens for the second, third, and fourth admission, subject to the adjustments and credits on which the parties are not in dispute.

Travelers, by crosspoints, argues that should this court reverse the judgment of the trial court, then we should remand rather than render. For discussion, we shall group these crosspoints in three categories: points relating to the qualification and admission of computerized hospital records; points relating to the admission of testimony from a filed, but unsigned, deposition; and points relating to the admission of opinion evidence as to the reasonableness of hospital charges.

Travelers first complains of inadequate qualification for the admission of hospital records, which were stored in and reproduced from a computer. On these points, the briefs address only the application of Tex.Rev.Civ.Stat.Ann. art. 3737e (Vernon 1951). Article 3737e provides the following requirement, for the admission of such a record:

(a) It was made in the regular course of business;
(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter. (Emphasis added).

The statutory predicate employs the verb “made” or “make” as to the person, manner, and time of creation of the tendered record. Baylor’s witness testified as to three detailed statements of charges for extended hospital admission plus detailed charges for an admission to the hospital emergency room. We quote as typical the qualification for admission into evidence of Baylor’s Exhibit 1 together with Travelers objection and the trial court’s ruling:

Q. All right, sir. Looking back, then at Plaintiff’s Exhibit No. 1, is that — by the way, what did you call that, sir?
A. It is the detailed patient billing statement.
Q. All right, sir. Is that the item kept in the ordinary course of business there at Baylor University Medical Center?
A. Yes.
Q. Is it part of the ordinary business of the Baylor University Medical Center to keep such records?
A. Yes.
Q. Is it based on the personal knowledge of some employee or representative of Baylor University Medical Center?
A. Yes.
Q. And is it made at or near the time of the act, event or condition depicted therein?
A. Yes.
MR. PARHAM: May I take a look at them? I will object, Your Honor, on failing to lay a proper predicate.
THE COURT: I didn’t hear you?
MR. PARHAM: I will object to the introduction of Plaintiff’s Exhibits 1, 2 and 3 for failing to lay a proper predicate.
THE COURT: I’m not sure I understand what your objection is. What specifically do you have reference to, Counsel?
MR. PARHAM: Your Honor, I think several items with respect to these being proper records of a hospital have not been shown to the Court, under the Business Records.
THE COURT: Well, overrule the objection. The exhibits will be admitted into evidence. (Emphasis added).

We hold the statutory predicate was laid by this testimony showing such records had the “probability of trustworthiness of records regularly kept by an organization while engaged in its activities and upon which it relies in the ordinary course of its activities.” Coulter v. State, 494 S.W.2d 876, 884 (Tex.Cr.App.1973). Our courts appear to use “kept” as synonymous with “made.” See State Automobile and Casualty Underwriters v. Reagan, 337 S.W.2d 522 (Tex.Civ.App.—Waco 1960, no writ); Travis Life Ins. Co. v. Rodriguez, 326 S.W.2d 256 (Tex.Civ.App.—Austin 1959, no writ) per curiam 160 Tex. 182, 328 S.W.2d 434 (1959). Although we have addressed this point on the above quoted objection appellee made to the trial court, we, like the trial court, deplore the lack of specificity of the objection and hold that such objection is insufficient to preserve error because it did not point out to the court any particular “items” of proof which had not been shown. Matter of Bates, 555 S.W.2d 420 (Tex.1977); Drake v. State, 488 S.W.2d 534 (Tex.Civ.App.—Dallas 1972, writ ref’d n.r.e.).

Notwithstanding this failure to point out any particular failure of proof in the trial court, Travelers urges here that computerized records should require some additional testimonial demonstration of reliability as mentioned in Railroad Commission v. Southern Pacific Co., 468 S.W.2d 125 (Tex.Civ.App.—Austin 1971, writ ref’d n.r.e.). In that case, however, our supreme court, in refusing the writ, wrote a per curiam opinion declining to sanction an enlargement of the statutory predicate for computer stored records as suggested by the Austin Court of Civil Appeals. Southern Pacific Co. v. Railroad Commission, 471 S.W.2d 39 (Tex.1971). Accordingly, we hold that the trial court properly admitted the hospital’s record of charges.

Travelers next complains of the admission of testimony from a deposition timely filed on the ground that it was not signed by the witness. We conclude that the testimony was admissible on the authority of Bankers Multiple Line Insurance Co. v. Gordon, 422 S.W.2d 244 (Tex.Civ.App.—Houston [1st Dist.] 1967, no writ). That case held that where the deposition was filed, even though unsigned, in advance of trial and the opposing party failed to file a motion to suppress for want of signature, the commencement of trial forecloses any objection. The court reasoned that Tex.R. Civ.P. 212 bars these complaints by providing:

When a deposition shall have been filed in a court at least one entire day before the day on which the case is called for trial, no objection to the form thereof, or to the manner of taking the same shall be heard, unless such objections are in writing and notice thereof is given to the opposite counsel before the trial commences. (Emphasis added).

Bankers held that absence of signature was an objection to the “form” or to the “manner of taking” and an objection at trial came too late.

Travelers lastly argues that the opinion of George Tsamis, Baylor’s administrator offering Baylor’s records, is not qualified apparently because Tsamis is not a physician. The Hospital Lien Statute does not require proof of the charges beyond that they are not more than “the reasonable and regular rate.” It does not impose a duty to prove that the treatment given, presumably on order of a physician, was medically required. We hold that the legislature’s use of “reasonable and regular rate” requires only a showing that a patient’s charges do not exceed the comparable rates for the same service to other patients in the same hospital. Qualification to give an opinion as to reasonable and regular rates is not necessarily limited to witnesses with medical training. Both witnesses, Tsamis and Denmark’s. physician, testified to a sufficient experience with hospital rates to permit the trial court to deem them qualified to express an opinion on Baylor’s rates to Denmark as being the “reasonable and regular rate” contemplated by the statute. In Garner v. City of Houston, 323 S.W.2d 659 (Tex.Civ.App.—Houston 1959, no writ), the court held: “Article 5506a provides for a lien to secure the ‘reasonable and regular’ charges that are made for services. We feel that by the term ‘regular’ the legislature meant charges should be those usually and customarily made.” 323 S.W.2d at 662. (Emphasis added).

We turn now to the proper judgment to be rendered. Since the amount due Baylor under its liens is undisputed, we reverse the judgment of the trial court and render judgment here that Baylor recover judgment against Travelers for $4,724.18 with interest at nine percent per annum from the date of trial court’s judgment, November 8, 1978, (date on which the trial court denied Baylor proper relief) until paid and all costs in the trial court and this court. Tex.R.Civ.P. 434; Trinity Universal v. Drake, 587 S.W.2d 458, No. 19695 (Tex.Civ.App.—Dallas, July 31, 1979).


author: MOORE, Justice.

text:
    Jean J. CARNEY, Appellant, v. Elma AICKLEN, Appellee.
    No. 1271.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 30, 1979.
    Rehearing Denied Oct. 4, 1979.

      Byron Lockhart, Lockhart, Kuykendall & Jones, Austin, Leonard J. Gittinger, Jr., Git-tinger & Gittinger, San Antonio, for appellant.
    Joseph Latting, Robinson, Felts, Meyers, Starnes & Latting, Judith P. Abbott, Austin, for appellee.
   MOORE, Justice.

This is the second appeal from an order appointing a guardian of the person and estate of Elma H. Loud, a person of unsound mind. The litigation originally commenced when appellant, Jean J.‘ Carney, filed an application to be appointed as guardian. Appellee, Elma Aicklen, contested the application of Jean J. Carney and also filed an application seeking to be appointed guardian of the person and estate of Elma H. Loud. At the conclusion of the trial in the previous case Elma Aicklen was appointed guardian. Upon appeal in the previous case the Austin Court of Civil Appeals reversed the case on the ground that Elma Aicklen was disqualified to serve as guardian due to the fact that the evidence showed that she was indebted to the estate of her ward. Carney v. Aicklen, 552 S.W.2d 633 (Tex.Civ.App.—Austin 1977, no writ). The court, after having found that the evidence was insufficient to show the amount of the indebtedness, remanded the cause for a new trial. Thereafter the cause was again tried.

The second trial, which forms the basis of the present appeal, was before the court and jury. Pursuant to the jury’s verdict, the trial court entered an order on March 19, 1978, again appointing Elma Aicklen as guardian of the person and the estate of Mrs. Loud, but conditioned the appointment on appellee’s reimbursing the estate in the amount of $1,400.00 covering her indebtedness to the estate. After such amount had been paid, appellee duly qualified as guardian, and appellant, Jean J. Carney, perfected this appeal.

We reform and affirm.

The evidence shows that Mrs. Loud is a widow who was seventy-seven years of age at the time of trial, her husband having died in 1973. She owns a home in Austin, Texas, where she has resided for many years. Appellee, Elma Aicklen, also resides in Austin, Texas. Appellant, Jean J. Carney, resides in San Antonio, Texas. For several years Mrs. Aicklen has taken care of Mrs. Loud on a daily basis, especially after her mental condition commenced deteriorating. Mrs. Carney visited with Mrs. Loud occasionally and Mrs. Loud occasionally would visit Mrs. Carney in her home in San Antonio. The evidence shows that Mrs. Loud reared both appellant and appellee, and they were generally known in the community as her daughters, although actually they were Mrs. Loud’s nieces. In 1974 Mrs. Loud executed a general power of attorney to Elma Aicklen who wrote checks on her account to pay her bills and also took care of most of her other household affairs. The bulk of Mrs. Loud’s estate valued at between $1,250,000.00 and $1,500,000.00 was in a trust which was being administered by the American National Bank of Austin, Texas. The trust estate generates an income of between $50,000.00 and $65,000.00 per year. In addition to the trust estate, Mrs. Loud owns her home which had an estimated value at the time of trial of approximately $115,000.00. Other than the interest income from the trust, the home is the principal asset subject to administration by the guardian.

In 1963 Mrs. Loud executed her last will and testament. Under the terms of the will her estate was to be divided in equal shares: one-third to appellee, one-third to appellant, and the remaining one-third to appellee’s children. Mrs. Loud willed her home to appellee, Elma Aicklen. Under the terms of the will, however, appellee is required to reimburse the estate for the current value of the home upon the death of Mrs. Loud.

The evidence shows that prior to June 6, 1976, Mrs. Loud lived in her home. On that date she was hospitalized because of her reoccurring mental problems and she has continuously remained in the hospital since that time. According to the testimony of her physician, she was mentally incompetent on that date. He testified that her mental condition was permanent and irreversible. It is conceded by both parties that from and after that time her mental condition was irreversible so that the will which she executed in 1963 is irrevocable.

In response to the special issues submitted by the court in the present case, the jury found that (1) Mrs. Loud was a person of unsound mind; (2) under the circumstances and considering only the best interest of Mrs. Loud, appellee, Elma Aicklen, should be appointed guardian; and (3) the amount of the debt which was owed by appellee, Elma Aicklen, to the estate of Mrs. Loud amounted to $2,100.00.

By her first point of error, appellant contends that the trial court erred in appointing appellee as guardian because she maintains that the evidence is sufficient to show, as a matter of law, that there is a conflict of pecuniary interest between the appellee and her ward which disqualifies her from being appointed. Appellant argues that since Mrs. Loud had not lived in her home since June 6, 1976, appellee, as guardian, had the duty to sell the home and invest the proceeds in order to obtain income for her estate, and since she failed and refused to do so, she was disqualified to be appointed guardian at the time of the second guardianship proceeding. Appellant further contends that there is a conflict of interest between appellee and her ward because if she determines to sell the house, she injures her rights under the vested expectancy arising from her mother’s will, which cannot be revoked. On the other hand, if she protects her vested expectancy, she injures the estate of her ward by depriving the estate of the income from the proceeds of a sale and also by expending approximately $3,600.00 per year in maintenance expense on the house.

Section 110 of Tex.Prob.Code Ann. (Supp. 1978-79) provides:

“The following persons shall not be appointed guardians:
(e) Those who are indebted to the person for whom or for whose estate a guardian is to be appointed, unless they pay the debt prior to the appointment, or who are asserting any claim to any property, real or personal, adverse to the person for whom, or for whose estate, the appointment is sought.
(g) Those who by reason of inexperience or lack of education, or for other good reason, are shown to be incapable of properly and prudently managing and controlling the ward or his estate.”

The foregoing statute has been interpreted to exclude as guardians those who have a conflict of interest with the ward. Dobrowolski v. Wyman, 397 S.W.2d 930 (Tex.Civ.App.—San Antonio 1965, no writ). It has also been said that the statute limits the appointment to those possessed of “disinterestedness from obligations antagonistic to, or conflicting with, financial interests” of the ward. Penny v. Hampton, 283 S.W. 599, 600 (Tex.Civ.App.—Texarkana 1926, no writ).

All of which brings us to the question of whether, under the facts before us, the appellee was disqualified, as a matter of law, to be appointed guardian because of her failure or refusal to sell the home of her ward and invest the proceeds. We have concluded that the evidence falls short of establishing her disqualification as a matter of law.

The evidence shows that at the time Mrs. Loud’s husband died in 1973, the home had a value of $80,000.00. The evidence further reflects that in September 1977 the home had a fair-market value of $115,000.00. Thus, in less than four and one-half years the value of the home had increased by $35,000.00 due to inflation. While it is by no means certain that the home will increase in value to that extent in the future, there is likewise no certainty that it will not. The evidence clearly indicates that the income from Mrs. Loud’s trust estate was sufficient to take care of her needs and therefore there was no necessity to obtain additional income. Under these circumstances, appellee’s failure or refusal to sell the home would not, as a matter of law, be sufficient to establish a violation of the Prudent Man Rule so as to demonstrate disloyalty toward her ward. Further, appellee testified that if Mrs. Loud’s condition became such that she was completely incapacitated and bedridden, she planned to move her back to her home and employ nurses to take care of her at her home. Certainly the guardian should have some discretion in determining where and how her incompetent ward would be taken care of. This being true, we fail to see how her failure or refusal to sell the home could be classified as imprudent.

We are likewise of the opinion that the evidence falls short of conclusively establishing that a conflict of interest existed between appellee and her ward due to the fact that appellee had an expectancy in the home which was devised to her under the terms of Mrs. Loud’s will. Under the terms of the will, Mrs. Loud directed her independent executor to obtain an appraisal of the fair-market value of the home at the time of her death and to deduct such amount from appellee’s one-third of the estate so that her estate would be divided in three equal parts.

Appellant takes the position that since Mrs. Loud no longer had the power to revoke or alter the will, appellee had a vested expectancy in the house. Consequently, appellant argues that by failing or refusing to sell the house, appellee was acting to protect her own financial interest at her ward’s expense, and as a result, a conflict of interest arose. We are not in accord with this proposition.

While appellee may have an expectancy in the house, the fact that the testatrix required her to reimburse the estate for the market value thereof renders her expectancy of little or no value. In view of the reimbursement provision, appellee could not expect to reap financial gain whatever by keeping the house. Under these circumstances her financial interest was and still is compatible with the financial interest of her ward. Consequently, we fail to perceive how any conflict of financial interest existed.

Nor can we agree with appellant’s contention that the expenditure of $3,600.00 per year by the appellee in maintaining the home constitutes conclusive proof of a conflict of interest showing that appellee was expending such funds to protect her expectancy. If, as we have heretofore held, appel-lee was authorized to keep the home in order to take care of the possible future needs of her ward, it would follow that she owed a duty to her ward to preserve and maintain the property. Appellant’s first point is overruled.

Appellant contends by her third point that the trial court erred in appointing appellee as guardian because the evidence shows as a matter of law that she was indebted to the estate of her ward in an amount far in excess of the $2,100.00 as found by the jury. In this connection, the evidence shows that prior to the time Mrs. Loud became incompetent, she made it a practice of giving appellee $350.00 and giving appellant $175.00 per month. The record shows that after Mrs. Loud became incompetent, appellee continued the same practice for a period of four months paying herself a total of $1,400.00 and paying appellant a total of $700.00. The jury found that the appellee was indebted to Mrs. Loud’s estate in the total sum of $2,100.00.

Appellant argues that in addition to the $2,100.00 indebtedness, the evidence shows, as a matter of law, that the appellee is also indebted to the estate for the sum of $5,663.80 for attorney fees which she paid to her attorney out of her ward’s estate for representing her in the contest of the prior guardianship proceeding and for representing her on the appeal of the case. Appellant takes the position that appellee’s action in contesting the guardianship and in seeking her own appointment was a personal matter and that the attorney fees should have been paid by her and not by the estate. Consequently she argues that the ap-pellee is now indebted to the estate for the amount of the attorney’s fees. We find no merit in this contention.

Section 242, Tex.Prob.Code Ann. (1955), provides that a guardian is authorized to pay all reasonable attorney fees necessarily incurred in connection with the proceedings and management of the estate of the ward. Section 28, Tex.Prob.Code Ann. (Supp.1975), provides that “Pending appeals from orders or judgments appointing . . . guardians, . . . the appointees shall continue to act . . . .” The record reveals that at all times after she was appointed guardian in the prior guardianship proceedings, she has continued to act as guardian. On October 31, 1976, she paid her attorney $2,163.80 and on June 8, 1977, she paid him the sum of $3,500.00. Both of such payments were included in her annual report filed on November 17, 1978, which was subsequently approved by the probate court.

The best interest of the ward is served by the appointment of a fit and proper person as guardian. As a result of the contest in the present case, the jury found that the best interest of the ward would be served by the appointment of appellee. The jury rejected appellant’s claim that the interest of the ward would be better served by her appointment. Where an application for guardianship is contested and as a result of the contest the contestant is appointed guardian, a reasonable attorney’s fee necessary for that purpose is clearly authorized because such funds are obviously expended for the benefit of the ward and for the protection of the estate. Section 242, Tex.Prob.Code Ann. (1955); Legler v. Legler, 189 S.W.2d 505, 510-11 (Tex.Civ.App.—Austin 1945, writ ref’d w. m.).

Appellant further argues that the appellee was disqualified from appointment as guardian because she was indebted to the estate for the amount of interest that would have been earned on the proceeds from the sale of the home, as well as the amount expended by her in maintaining the home. Appellant’s argument here is premised on the assumption that appellee was duty-bound to sell the home and invest the proceeds. Since we have heretofore concluded that no such duty arose, we find no merit in this contention. Appellant’s third point is overruled.

Appellant asserts by her fifth point that the trial court erred in reducing the amount of the indebtedness found by the jury to be due and owing to the estate by appellee Elma Aieklen from $2,100.00 to $1,400.00. We sustain appellant’s contention.

In response to Special Issue No. 3, the jury found that at the time of trial, appel-lee owed $2,100.00 to her ward’s estate. In connection with Special Issue No. 3, the court instructed the jury as follows:

“You are instructed that a debt arises when one having charge of the financial affairs of another uses funds or property of the other for the benefit of the user or some third party.”

The record is unclear as to why the trial court reduced the amount of the verdict. Apparently the trial court concluded that the appellee was indebted to the estate for the monthly payments which she paid herself totalling the sum of $1,400.00 but was not indebted to the estate for the monthly payments paid to appellant in the amount of $700.00. In any event, the record shows that the appellee has reimbursed the estate for the sum of $1,400.00.

Appellee undertakes to sustain the trial court’s action on the ground that the monthly payments made to herself and appellant were made before she became the guardian of the estate and were made by virtue of the powers conferred on her by the power of attorney executed by Mrs. Loud providing that such powers would not terminate on her disability. Contrary to appellee’s contention, we find nothing in the power of attorney authorizing the ap-pellee to expend any of Mrs. Loud’s funds for her own use and benefit, nor do we find anything in the appointment authorizing her to make gifts to third persons. Consequently, we do not believe the action of the court may be sustained on the basis of the power of attorney.

Appellee registered no objection to the submission of Special Issue No. 3 or to the instructions given by the court in connection therewith. Under the court’s charge and the undisputed evidence, the record shows conclusively that appellee' was indebted to her ward’s estate not only for the $1,400.00 she paid herself but also for the $700.00 she gave appellant. It therefore became the duty of the trial court to enter judgment on the verdict. Accordingly, the judgment is reformed so as to require ap-pellee to reimburse the estate of her ward in the amount of $2,100.00 rather than the sum of $1,400.00 as decreed by the judgment.

By the sixth point, appellant contends that the trial court erred in denying her application for appointment because she contends the evidence conclusively establishes that she was qualified to be appointed guardian. Consequently, appellant takes the position that this court should reverse and render judgment appointing her guardian. We find no merit in this contention and the point is therefore overruled.

Section 109(c)(3), Tex.Prob.Code Ann. (1955), provides:
“Where two or more persons are equally entitled, the guardianship shall be given to one or the other, according to the circumstances, only the best interest of the ward being considered.”

The question as to which of the two applicants was to be appointed as guardian was submitted to the jury by Special Issue No. 2 reading as follows:

“Under the circumstances presently existing, and considering only the best interest of Elma Loud, whom do you find from the preponderance of the evidence should be appointed as the guardian of the person and the estate of Elma Loud?

Thus, the jury was given the right to choose between the two applicants and the jury chose appellee, Elma Aicklen.

Where the question of which of two equally entitled applicants is submitted to the jury under the provisions of Sec. 109(c)(3) of the Texas Probate Code, the issue as to which applicant is better qualified to serve the best interest of the ward creates a question to be determined by the trier of fact. Unless it can be said as a matter of law that there were no pleadings and no evidence of probative force to sustain the jury’s findings and the trial court’s judgment, this court is not authorized to reverse and render the cause. McFall v. Fletcher, 138 Tex. 93, 157 S.W.2d 131, 132 (1941). This situation does not exist here.

In points 2, 4, and 7 appellant seeks a reversal on the ground that the jury’s findings and the judgment based thereon is against the overwhelming weight and preponderance of the evidence. After a review of the entire record and after weighing and balancing all of the evidence in the record, both that in favor of the findings and judgment as well as that contrary thereto, we have concluded that there is no merit in any of these points and they are therefore overruled.

The judgment will be reformed so as to order appellee, Elma Aicklen, to pay into the registry of the court for the use and benefit of the estate of Elma Loud, the sum of $2,100.00 rather than the $1,400.00 as decreed by the judgment. In all other respects the judgment is affirmed.


author: STOREY, Justice.

text:
    Mary Carolyn CAMPBELL, Appellant, v. Frank Carroll CAMPBELL, Appellee.
    No. 19944.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 30, 1979.
    Gary Alimón Grimes, Patricia L. McKool, Mesquite, for appellant.
    Reid A. Rector, Dallas, for appellee.
    Before GUITTARD, C. J., and CARVER and STOREY, JJ.
   STOREY, Justice.

In question on this appeal is the trial court’s award to the husband of the entire community interest in a joint venture. Appellant claims the court erroneously treated the venture interest as the husband’s separate property, and consequently its award to the husband resulted in such disparate division of the community estate as to constitute an abuse of discretion under Tex. Fam.Code Ann. § 3.63 (Vernon 1975). We find no evidence in the record that the court considered the venture interest as separate property; nor does the record reflect a disproportionate partition of the community estate. There being no abuse of discretion shown, we affirm the trial court’s judgment.

On August 15, 1973, appellant and appel-lee acquired a twenty-five percent ownership interest in a joint venture which held title to approximately 200 acres of land in Phoenix, Arizona. The same day, appellant executed a “disclaimer deed” whereby she purported to transfer to appellee whatever interest she had in the venture. Of significance is the following recitation in the deed: “4. This instrument is executed not for the purpose of making a gift to the spouse, but solely for the purpose of clearly showing of record that the undersigned has and claims no interest in and to said property.” Of the acreage originally purchased, the record shows that all but forty-five acres had been sold at time of trial. The trial court awarded the entire interest to appellee in its divorce decree. Appellee contends that the decree is proper in this respect because the disclaimer deed had the effect of transferring any interest of the wife in this venture to the husband as his separate property.

The first question concerns the effect of the disclaimer deed between the parties. The general rule is when one spouse conveys property to the other for a recited consideration, or for no consideration but with intent to make a gift,.the property becomes the separate property of the donee. Belkin v. Ray, 142 Tex. 71, 176 S.W.2d 162 (1943); McAdams v. Ogletree, 348 S.W.2d 75, 84 (Tex.Civ.App.—Beaumont 1961, writ ref’d n.r.e.). In this case, however, appellee admits the conveyance was made for no consideration and the instrument itself expressly negates an intent to make a gift. We agree with appellant, therefore, that the disclaimer deed was ineffective to convey appellant’s interest to appellee as his separate property.

Nevertheless, we find nothing in the record even remotely indicating that the court considered the interest to be separate property. Appellant argues that the language in the divorce decree shows that the interest in the joint venture was found by the court to be appellee’s separate property. In this connection, she calls our attention to the following provision of the decree: “Respondent is awarded the following as Respondent’s sole and separate property, and Petitioner is hereby divested of all right, title, and interest in and to such property: (1) any and all property ventures located in Arizona; . . .” We cannot agree that the court considered this to be separate property prior to divorce. Instead, the language in the decree characterizes the land as appellee’s separate property only after the court made its partition. This conclusion is clear because the decree contains the same recitation with regard to property awarded to appellant. Appellant points out no other evidence in the record, nor does our examination of it reveal any evidence which would indicate that the trial court treated the interest as anything other than community property.

The next question is whether the overall division of property was disproportionate as contended by appellant. Section 3.63 of the Family Code imposes upon the trial court the duty to divide the community estate in a fair, just, and equitable manner. McKibben v. McKibben, 567 S.W.2d 538, 539 (Tex.Civ.App.—San Antonio 1978, no writ). Moreover, the trial court is not required to make an equal division of the property. Thomas v. Thomas, 525 S.W.2d 200, 202 (Tex.Civ.App.—Houston 1975, no writ). Appellant recognizes the trial court’s discretion in this regard, but argues that the disparity between the spouses as a result of awarding the interest in the joint venture to the husband is so disproportionate as to constitute an abuse of that discretion. The only testimony regarding the value of the Arizona venture is that of the husband, who testified:

THE COURT: [T]he present value [of the property] is about how much?
THE WITNESS: I’m guessing, it’s going to be somewhere between two and three hundred thousand dollars, if, you know, everything is done the way it is supposed to be done. We’ve got a lot of obligations and we’ve got a lot of dollars that have to be put into that. . . . [Emphasis added].

We are unable to determine from this testimony whether “between two and three hundred thousand” represents the estimated value of the parties’ twenty-five percent interest or one hundred percent of the equity in the joint venture. The testimony does reveal, however, that this amount represents the property’s value only after substantial expenditures have been advanced by the venture. This testimony is insufficient to show the trial court abused its discretion, particularly in light of the overall division of property recited in the divorce decree.

Although the decree describes numerous property interests awarded to each party, it fails to reveal the dollar value of those interests. We are therefore unable to determine with any degree of certainty the total dollar amount awarded to each party. The record does show that appellant was awarded substantial properties consisting of the home and household furnishings, cash, life insurance policies, twenty percent interest in fifteen notes payable to appellee, and nineteen percent interest in nine other parcels of property. Appellant was also relieved of liability for substantial debts, because appellee was ordered to assume the payment of approximately $1,000,000 in debts. In the absence of any findings of fact or conclusions of law by the trial court, the judgment will not be disturbed if it can be upheld on any legal theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962). The Arizona venture is only one item to be considered in the overall division of property, and we conclude that the award to the husband was not so unequal as to constitute an abuse of discretion by the trial court.

Affirmed.


author: BISSETT, Justice.

text:
    Wilford FULTZ, Appellant, v. CUMMINS SALES & SERVICE, INC., North Shore Boat Works and Roger Ford, Individually, Appellees.
    No. 1405.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.

      Joseph A. Cohn, Jr., Corpus Christi, for appellant.
    Dudley B. Foy, Jr., Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

This case involves an appeal from an order dismissing a subrogation action with prejudice as to all defendants for alleged failure of the nominal plaintiff (subrogor) to comply with a discovery order. The sub-rogation action arose out of an accident wherein a yacht purchased by Wilford Fultz (insured; subrogor; nominal plaintiff) was damaged by fire allegedly resulting from the negligent and defective manufacture and repair of the vessel. The action was brought in plaintiff’s name by Insurance Company of North America (INA; subro-gee, insuror) against Cummins Sales and Service, Inc. (Cummins Sales), Cummins Engine Company, Inc. (Cummins Engine), North Shore Boat Works (North Shore), Miller Yacht Sales, Inc. (Miller Yacht), Egg Harbor Boat Company, Inc. (Egg Harbor) and Aeroquip, Inc. (Aeroquip).

The relevant pre-trial history of this case began on September 9, 1977, when Egg Harbor and Miller Yacht propounded written interrogatories to Fultz, plaintiff. These were followed on the 17th and 18th of January, 1978, by interrogatories and supplemental interrogatories propounded to Fultz by Cummins Engine.

Never having received a response from Fultz, Egg Harbor and Miller Yacht moved the court on February 27, 1978, to compel Fultz to answer the September 9, 1977, interrogatories. An order to that effect was signed by the trial judge on March 10, 1978. This order instructed Fultz to answer the September 9,1977, interrogatories on or before March 13, 1978. In the meantime, Cummins Engine had not received any response from Fultz. Hence, on March 30, 1978, Cummins Engine filed a motion to compel discovery.

Eight months after their interrogatories had been propounded and a month and a half after the court-imposed deadline, Egg Harbor and Miller Yacht moved on May 1, 1978, to dismiss the cause for Fultz’s failure to answer the interrogatories propounded to him. The following day, May 2, 1978, an “agreed” order was signed by the court. The order, in relevant part, provided:

“ . . . Cummins Engine Company, Inc. having asked for the following Order and it appearing to the Court that neither the Plaintiff, Wilford Fultz, nor the Defendant, Miller Yacht Sales, Inc., had any objections thereto and, in fact, agreed thereto, it is therefore
ORDERED and DECREED by the Court:
1. That the plaintiff, Wilford Fultz, make answers to the Rule 168 Interrogatories propounded to him by the Defendant, Cummins Engine Company, Inc., and file the same with the Clerk of the Court on or before May 3, 1978, at 5:00 PM in the form required by Rule 168, T.R.C.P., upon penalty of having his cause dismissed pursuant to Rule 170, T.R.C.P.
2. That the Plaintiff, Wilford Fultz, makes answers to the Supplemental Rule 168 Interrogatories served upon him by the Defendant, Cummins Engine Company, Inc., as required by Rule 168, T.R. C.P., and file them with the Clerk of this Court on or before May 3, 1978, at 5:00 PM upon penalty of having his cause dismissed pursuant to Rule 170, T.R.C.P.”

In response to the agreed order, Fultz, on May 3, 1978, filed answers to the interrogatories and supplemental interrogatories propounded by Cummins Engine and the interrogatories propounded by Egg Harbor and Miller Yacht. None of the answers, however, were signed or sworn to by him. Instead, his attorney signed all three replies, swearing only that the answers were “true and correct to the best of [the attorney’s] knowledge.”

The next day Cummins Engine filed a motion to strike plaintiff’s answers and to dismiss his cause of action “with prejudice pursuant to the May 2 order” because 1) the answers were not properly verified and 2) the answers were so inadequate as to demonstrate “bad faith.” At that time, the trial judge also had before him the joint motion of Yacht Sales and Egg Harbor filed April 28, seeking the imposition of discovery sanctions for plaintiff’s failure to answer their interrogatories. A hearing was held on May 5, 1978, to determine the issue of compliance with discovery. No decision was made at this hearing and the matter was continued until June 16, 1978. In the meantime, on June 14,1978, Fultz filed new responses to the interrogatories propounded by Cummins Engine and the interrogatories propounded by Miller Yacht and Egg Harbor. These answers, while substantively unchanged, were properly signed and verified by him.

On June 16, 1978, the matter of compliance with the agreed order of May 2, 1978, was taken up again by the court. As a result of this hearing, judgment was rendered on June 21, 1978, that the cause be dismissed with prejudice. In relevant part, the judgment recited:

“ . . . an agreed Order by and between the Plaintiff, Wilford Fultz, and the Defendant, Cummins Engine Company, Inc. was entered by the Court under the terms of which it was agreed and ordered that the Plaintiff, Wilford Fultz, would make answers to Rule 168 Interrogatories propounded to him by the Defendant, Cummins Engine Company, Inc. in the form required by Rule 168, Texas Rules of Civil Procedure, and file the same with the Clerk of Court on or before May 3,1978, at 5:00 p. m. upon penalty of having his cause dismissed pursuant to Rule 170, Texas Rules of Civil Procedure; that the Plaintiff, Wilford Fultz, would make answers to Supplemental Rule 168 Interrogatories served upon him by Cum-mins Engine Company, Inc. as required by Rule 168, Texas Rules of Civil Procedure, and file them with the Clerk of the Court on or before May 3, 1978, before 5:00 p. m. upon penalty of having his cause dismissed pursuant to Rule 170, Texas Rules of Civil Procedure, ...”

Fultz attacks the judgment on the grounds that the trial court abused its discretion in choosing such, a harsh sanction, and that he was in essentia] compliance with the agreed order of discovery as of June 16, 1978, when the court reached its decision. In the alternative, Fultz contends that even if it could be said that he failed to comply with the agreed order, it was error for the trial court to dismiss the cause as to all defendants.

The May 2 order is not an order which is founded upon an agreement reached by the parties. It is an order by the trial judge which was agreed to by plaintiff and Cummins Engine. Therefore, the rules discussed by our Supreme Court in Vickrey v. American Youth Camps, Inc., 532 S.W.2d 292 (Tex.Sup.1976) and in Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871 (1939) do not apply. However, we will (and do) discuss the terms of the order, together with the effect of the agreement by plaintiff and Cummins Engine that the same be made by the trial court.

Rule 11, T.R.C.P., expressly states:

“No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court . and entered of record.”

Here, the only agreement that purports to comply with Rule 11 is the May 2 agreed order. Insofar as this appeal is concerned, this order was reduced to writing and approved as to form and substance by the attorneys for plaintiff and Cummins Engine. The terms of the order do not necessarily show that the parties intended that the sanction of dismissal would be imposed if plaintiff answered the interrogatories propounded and the only formal defect in such answers concerned an improper signature and verification. Even if it is assumed that the sanction of dismissal would be imposed in such a case, a proper interpretation and construction of the remainder of the agreed order does not support the conclusion that 1) the parties intended such dismissal to be with prejudice ; or 2) the parties intended the dismissal to be a dismissal as to any defendant other than Cummins Engine. Nor can these essential terms which are not expressly contained in the order be supplied by implication.

The order of May 2, by its express terms, was intended for the purpose of compelling plaintiff to answer Cummins Engine’s interrogatories and nothing more. No other provision, other than the word “cause” purports to expand the scope of the order to include parties other than plaintiff and Cummins Engine.

The relevant portion of Rule 170 authorizes the court to make “such orders in regard to the refusal as are just,” including “(c) an order . . . dismissing the action or proceeding or any part thereof, . ” When consideration is given to the remainder of the agreed order, including the specific reference to Rule 170, we believe that the word “cause” as it is used in the May 2 order means either: 1) plaintiff’s entire cause as against only Cummins Engine; or 2) that portion of plaintiff’s cause as against only Cummins Engine which is warranted under the circumstances in the event plaintiff totally fails to answer the interrogatories or fails to completely answer such interrogatories. This interpretation would be consistent with the remainder of the order which, as has been stated, by its express terms, is between only plaintiff and defendant Cummins Engine. This interpretation would also be consistent with the phrase “pursuant to Rule 170,” and more importantly, consistent with, and not antagonistic to, the otherwise limited scope of the agreed order.

If the plaintiff and Cummins Engine had intended the sanction of dismissal to be a dismissal with prejudice then such provision would have been included in the agreed order. The trial court was without authority to add such a provision. The judgment attacked in this appeal was outside the scope of the agreed order as to the plaintiff and defendant Cummins Engine, as well as to all of the other defendants.

There remains another reason why the judgment of dismissal with prejudice as to Cummins Engine was outside of the scope of the agreed order. Neither the agreed order of May 2 nor the relevant provisions of Rule 170 state that the dismissal, where one is granted, shall be a dismissal with prejudice.

Concerning the asserted abuse of discretion, our review of the trial court’s action in rendering a judgment of dismissal with prejudice as to all defendants is based upon the abuse of discretion standard generally applicable to the review of discovery cases. For an illuminating discussion on the need to preserve the inherent flexibility of sanctions which will permit the trial judge to exercise sound discretion and at the same time fashion sanctions that are “just under the circumstances, and, at the same time, further the ultimate goal of discovery in compliance with the discovery rules, see Comment, “Imposition and Selection of Sanctions in Texas Pretrial Discovery Procedure,” 31 Baylor L.Rev. 191 (1979).

We further hold that, disregarding the agreed order and considering the trial court’s action solely within the context of its discretion, the trial court abused its discretion in imposing such a harsh sanction to punish plaintiff for a mere defect in form which was ultimately cured. See Rodebaugh v. Beachum, 576 S.W.2d 143 (Tex.Civ.App.—Waco 1978, writ ref’d n. r. e.); United States Leasing Corp. v. O’Neill, Price, Anderson & Fouchard, Inc., 553 S.W.2d 11 (Tex.Civ.App.—Houston [14th Dist.] 1977, no writ); Ebeling v. Gawlik, 487 S.W.2d 187 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ). Moreover, there is no indication in the record that there was any “bad faith” or wilfull disobedience of the May 2 order by plaintiff.

In addition, the dismissal with prejudice as to the defendants other than Cum-mins Engine, constituted an abuse of discretion insofar as their complaints concerning the sufficiency of the answers that were given. There are other alternatives authorized within the scope of the discovery rules to encourage compliance with the rules other than dismissal with prejudice.

The judgment of the trial court is REVERSED and the cause is REMANDED for further proceedings.


author: NYE, Chief Justice.

text:
    Enedina SALAZAR, Appellant, v. Selma VALDEZ, Appellee.
    No. 1418.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.

      B. Mills Latham, Corpus Christi, for appellant.
    M. W. Meredith, Jr., Meredith, Donnell & Edmonds, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is an automobile intersectional collision case. The plaintiff, Enedina Salazar, brought suit against Selma Valdez for alleged injuries received in a collision at the intersection of South Staples and Williams Street in Corpus Christi, Texas. The jury found that both parties were negligent and that such negligence was a proximate cause of the occurrence in question. The jury was then asked if the plaintiff Salazar was injured as a result of the occurrence in question. The jury found that she was not injured (special issue number ten). In the next eight special issues, the jury was asked to find the amount of money the plaintiff Salazar should receive for the various damages that would fairly compensate her for the injuries, if any. The jury found “zero” on each issue. No complaint is made of these damage findings.

Mrs. Salazar, as Appellant, complains of the take-nothing judgment in three points of error. Points of error number one and two are: “The jury’s'answer to special issue number ten (that she was not injured) was against the great weight and preponderance of the evidence,” and 2) that the answer to this special issue (number ten) was contrary to the conclusive evidence.

In considering the evidence points of error, we are guided by the familiar rules set out in Judge Calvert’s article, “No Evidence” and “Insufficient Evidence” 38 Tex. L.Rev. 359 (1960); and the Supreme Court cases in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1957); and Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).

The record shows that the parties to this law suit were involved in a minor accident at an intersection. The accident was of such a minor nature that neither party was even aware that an accident had occurred until they heard the noise that it made. Photographs of the damage to each car showed only a small scrape on the side of Mrs. Salazar’s vehicle, and not even a scratch or broken headlight on the Valdez vehicle. The investigating police officer inquired as to whether either party was injured. Both of them stated that they were “okay.”

At the time of the accident, Mrs. Salazar was temporarily employed as a clerk for the Texas Employment Commission. She worked the maximum number of hours her job would permit. She thereafter applied for unemployment compensation, not because of the accident, but because she did not have a job and was looking for work. Subsequently, she went to work for the City of Corpus Christi, and has been able to do her job without any disability.

According to plaintiff Salazar, she saw her family physician, who prescribed muscle relaxants and pain medication, and later sent her to a physical therapist for treatment. Neither of these specialists were called to testify on behalf of Mrs. Salazar. Approximately three months after the accident, plaintiff Salazar was examined and treated by a Dr. George Barnes, an orthopedic surgeon. He testified by deposition. He stated that x-rays taken by him of plaintiff Salazar did not reveal anything wrong with the bony structure of her back. He testified that Mrs. Salazar’s tendon reflex was intact; that there was no sensory loss; the motion of the lumbar spine was not restricted; and that she was able to rise from a sitting position without difficulty. He did testify that when he saw her, she was tender over the right sciatic notch. On cross-examination, Dr. Barnes testified that in treating a patient, including Mrs. Salazar, and in trying to relieve a patient’s complaints, a doctor has to take pretty much at face value everything that a patient tells the doctor as to whether she is hurting and where she is hurting. The doctor admitted that her statements in this regard would have an effect on his opinion.

Plaintiff Salazar’s testimony as an interested witness raised a question as to her credibility for the jury to determine. Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (1956); Neuhaus v. Kain, 557 S.W.2d 125 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d, n. r. e.). The jury did not believe that she was injured. We therefore overrule Appellant’s first and second points of error.

Appellant’s point of error number three is as follows: “When taken as a whole, the jury verdict was so against the great weight and preponderance of the evidence as to show that the jury in answering the Special Issues was motivated by bias, prejudice and/or sympathy or some other motive not in keeping with the ends of justice.” This point of error does not comply with Rule 418, T.R.C.P., as it fails to direct the attention of the Court to any error relied upon. This Court has overruled such points of error as being too vague and general, and failing to direct us to any particular error for our consideration on numerous occasions. See: Pate v. Yeager, 552 S.W.2d 513 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d, n. r. e.); Rio Delta Land Co. v. Johnson, 566 S.W.2d 710 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d, n. r. e.); K & S Oil Well Service, Inc. v. Cabot Corporation, Inc., 491 S.W.2d 733 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d, n. r. e.); Inman v. Padrezas, 540 S.W.2d 789 (Tex.Civ.App.—Corpus Christi 1976, no writ); Blackmon & Assoc., Inc. v. Palmer Bldg. Sup. & Spec., Inc., 463 S.W.2d 228 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d, n. r. e.). Even so, Appellant Salazar’s only argument under this point is directed to the jury’s finding that her failure to keep a proper lookout attributed to 30% of the cause of the accident. She states that this finding is proof that the jury was motivated by bias, prejudice, or some other motive inconsistent with a just verdict. We do not agree. In any event, the jury’s answer to special issue number ten (that she was not injured), makes this argument and this point of error moot.

The appellant has made no complaint regarding the jury’s findings of “zero” to all of the damage issues (issues 11, 12, and 13 a through f). Even if the record could uphold Appellant’s contention that she had been injured, the appellant’s failure to complain of the jury’s “zero” findings on the damage issues would cause any such error to become immaterial on appeal. We, therefore, overrule all of Appellant’s points of error, and affirm the judgment of the trial court.

AFFIRMED.