text:
    STATE of Missouri, Plaintiff-Respondent, v. Tyrone STEWARD, Defendant-Appellant.
    No. 39330.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 21, 1978.

      Robert C. Babione, Public Defender, Joseph W. Webb, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, J. Michael Davis, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   PER CURIAM.

This is an appeal by defendant-appellant, Tyrone Steward, from a judgment of conviction for the offense of burglary in the second degree. §§ 560.045, 560.095, RSMo. Defendant was found guilty by the jury and sentenced by the court under the provisions of the Second Offender Act, § 556.280, to ten years in the Department of Corrections. For reasons hereinafter stated, we affirm.

The thrust of the evidence at trial was the following. On August 16, 1976, Mr. Harold Winkelman, who resided at 4233 Grove Street in the City of St. Louis, left his home “for breakfast” at about 8:00 a. m. He returned about 9:00 a. m. and

“. . . saw some things was disturbed in the yard. The gate was open, window had been forced, and I looked around the house, I saw a window open so I went down the street and called the police on the phone.”

The window had been “secured” when he left the house that morning. A board lay on the window sill. Two officers came to the home. According to the testimony of Mr. Winkelman, when the officers arrived he opened the front door and while he remained outside the officers went in. Inside the officers found the appellant in the coal bin in the basement. He was arrested and searched. In his trousers were two unemployment checks belonging to Mr. Winkel-man. The house was in disarray; Mr. Winkelman saw “an array of everything out on my bed.”

The two officers testified. Their testimony brought out that when they arrived the door of the residence “was standing open” and they entered the residence with Mr. Winkelman and “searched the residence for any persons who may have been inside.” They found the defendant “[i]n the basement in a coal bin” and took him upstairs. One of the officers found “in his right-rear-trouser pocket two checks belonging to the victim.” An officer testified: “We recéived an assignment . . . . Upon entering the building — the door was open, the window was broken out.” “The glass was broken and the window was open.” “There was glass in the gangway.” “We searched the first-floor premises, found no one. Then we searched the basement premises and in a back closet room we apprehended a subject.” “The residence was ransacked.”

The defendant did not testify.

During his closing argument, the defense attorney compared the legal principles in this country with those of other countries and stated that the jury would be required to find the defendant guilty beyond a reasonable doubt. He argued that there was no evidence of a “breaking” — a necessary element of the offense. He concluded his argument by informing the jury that

. .to Tyrone Steward this is the important, important, day of his life and I’m convinced that when you look at this case, look at the evidence, you’re going to find Tyrone Steward not guilty because the State hasn’t proved those elements beyond a reasonable doubt.”

In the second portion of the state’s argument, the prosecutor began:

“. . . [Tjhis is an important day in Tyrone Steward’s life because he’s sitting there looking at the twelve people of you saying, ‘Am I going to be able to beat this case?’ ‘Am I going on the bricks?’ ‘Am I going to walk the streets again?’ ‘Am I going to get to look at another house?’ ”

This was objected to; the prosecutor withdrew the statement and the court instructed the jury to disregard it.

Later, in commenting upon the defense counsel’s argument, the prosecutor stated:

“[Defense Counsel] talked with you about the founding fathers of our country. I’d like to expand on this. .
One of the things that you as citizens have to remember is that the Constitution is made for everybody, not just for people like Tyrone Steward who can come in and say, T got caught. Now you give me my constitutional rights.’ Mr. Wink-elman — •”

An objection was made and overruled. The prosecutor continued:

“Mr. Winkelman has some rights too. He has the same rights that you enjoy when you go to your house — to leave your house without having fear that somebody is going to break in and take your property. Those are your constitutional rights, to protect your property.
Now, you have to go up to the jury room and decide what you’re going to do when you get evidence like this, . where the officers catch the man breaking into a house that had been secured an hour before.”

An objection was made to this latter statement and overruled.

Finally, near the end of his closing argument, the prosecutor argued:

“You have to let your community and Mr. Steward himself know what you think when you hear a case with evidence like this, what you think your community demands, you as a citizen demand. When you ask for your demand of justice, why don’t people do something about what is going on out there it comes down to twelve citizens like yourself in every case sitting as a jury weighing the evidence and saying, when we get evidence like this, strong evidence, . . we’re going to tell him, Mr. Tyrone Steward and everyone like him, that when you do that you’re going to have to be prepared to pay for your actions and when you’re caught like that, . . . the evidence in this case shows the citizens of the community are not going to tolerate it, you’re going to be found guilty as charged, as in fact the evidence shows you to be beyond a reasonable doubt

On this appeal appellant contends (1) that the evidence was insufficient to support a conviction of burglary in the second degree because there was no direct evidence of a “breaking” since the evidence showed a number of open entry points existed and because the facts and circumstances did not point so clearly to guilt as to exclude every reasonable hypothesis of innocence since there was some evidence of open doors and windows, and (2) that the trial court erred in overruling objections to the prosecutor’s argument which referred to the community and the jury, and to those comments which communicated a presumption of appellant’s guilt — “to beat this case,” “to get to look at another house” and “I got caught.”

We find neither point to be meritorious.

The thrust of appellant’s first point is that, since the evidence showed a variety of possible open entry points, there was no “breaking” so as to constitute the offense of burglary. Although there was some contradictory testimony in the state’s case as to whether the front door or cellar door or a certain window was open, there was substantial evidence that the house had been secured when Mr. Winkelman left the house. And when he returned one or more of the windows had been broken, a board lay on the sill, there was glass in the gangway, the defendant was found inside the residence, the house was in disarray or “ransacked”, and the defendant was found to have two checks on his person which belonged to the victim. Taking the evidence and all reasonable inferences derived therefrom in the light most favorable to the state, we conclude that there was sufficient evidence to indicate a “breaking” and entering with the intent to steal. The contradictory testimony that there may have been possible open entry points does not preclude the jury from finding upon the testimony of Mr. Winkelman that there was a breaking and entering. Mr. Winkelman testified that a window had been forced and that before he left it was secured.

Although there were no eyewitnesses to the actual “breaking,” the facts and circumstances were such so as to point so clearly to guilt as to exclude every reasonable hypothesis of innocence. See State v. Cox, 527 S.W.2d 448, 452 (Mo.App.1975); State v. Mason, 506 S.W.2d 458, 460 (Mo.App.1974); State v. Sanderson, 528 S.W.2d 527, 531 (Mo.App.1975); State v. Brunson, 516 S.W.2d 799, 803 (Mo.App.1974).

We have examined the authorities relied upon by the appellant and find that they are not controlling or dispositive of this cause.

As to appellant’s second point, the only portion of the argument of the prosecutor which was properly preserved in the motion for new trial was the comments concerning the effects that the jury’s verdict would have on the local community. We find no error as to those comments.

It is true, of course, that an accused is entitled to a fair trial and it is the duty of the prosecutor to see that he gets one. As long as the prosecutor stays within the record and its reasonable inferences, his argument is legitimate. State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, 306 (banc 1956). But the trial court has wide discretion in determining the latitude in permitting argument of counsel, and an appellate court will not reverse unless there has been an abuse of discretion. State v. Taylor, 508 S.W.2d 506, 514 (Mo.App.1974); State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 588 (banc 1950); State v. Rutledge, 524 S.W.2d 449, 458 (Mo.App.1975); State v. Tallie, 380 S.W.2d 425, 430-431 (Mo.1964). An argument may convey to the jury the necessity of law enforcement as a deterrent to crime, the evil results which flow to society from any failure of the jury to do its duty, the responsibility of the jury in the suppression of crime and may call for law enforcement. See State v. Heinrich, 492 S.W.2d 109, 114 (Mo.App.1973). The prosecutor may not, however, seek by inflammatory appeals to arouse in the jurors personal hostility toward or personal fear of the defendant. He may not personally abuse the defendant with remarks unconnected with the evidence. See State v. Jackson, 499 S.W.2d 467, 471 (Mo.1973).

As to the argument concerning the jury and the local community, we find that the trial court did not err in overruling an objection thereto. An argument closely paralleling this one was approved in State v. Crawford, 478 S.W.2d 314, 320 (Mo.1972), reh. den. 409 U.S. 1051, 93 S.Ct. 536, 34 L.Ed.2d 505, where the Supreme Court found the argument “a permissible call for law enforcement.” We believe that the argument here was a legitimate call for law enforcement and emphasized the duty of the jury as to its responsibility for the suppression of crime.

As to the other portions of the argument complained of on this appeal, they were not properly preserved in the motion for new trial and were not properly preserved for review. State v. Nevills, 530 S.W.2d 52, 54 (Mo.App.1975). Even so, those portions of the argument were either (1) within the record or the permissible inferences therefrom or (2) showed no gross personal hostility toward the defendant or (3) were not such as to arouse the passions or inflame the jury as found in other decisions. See cases summarized in Jackson, 499 S.W.2d at 471. Nor did they rise to the level of persistence as the remarks in Heinrich. The reference to “I got caught” did not rise to the level of opprobrious personal reference to the defendant’s character; the remark about “breaking into a house” was well within the record; and the remark concerning “walk the streets again” was not so prejudicial under the circumstances so as to require a reversal. These remarks certainly do not rise to the level of “plain error.” Rule 27.20(c).

We have read the entire record, the briefs of the parties and the authorities relied upon therein. We are convinced that there is no prejudicial error.

The judgment is affirmed.

All the Judges concur.

      . Although the evidence is not crystal clear, Mr. Winkelman was referring to a window “to a hallway in my house.” He later referred to it as the “bathroom window.” Mr. Winkelman testified that he had driven nails in it and the inside nails were forced out. He testified to two cellar doors — an outer door described as a “rain protector” was open “[t]hat should not have been open” and an inner door which was closed. One of the officers, however, testified that the “[b]asement door, steps leading down to the basement” was open.

      . It was “[w]ide enough for us just to walk through without touching.”

      . The officer testified that there were two windows — about nine feet apart. They both had broken glass.

      . State v. Allen, 344 Mo. 335, 126 S.W.2d 236 (1939). — absolutely no evidence that the doors and windows had been secured or closed; State v. Kennedy, 16 Mo.App. 287 (1884) — evidence that window was open.

      . “ ‘A society, a community only gets the type of law enforcement that it wants and you gentlemen are the Society. You are going to decide in this case whether this community wants this type of conduct going on and whether you want this type of man to be walking the streets and — .’ ”

      . See State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, 527-528 (banc 1947); State v. Taylor, 320 Mo. 417, 8 S.W.2d 29, 36-37 (1928) — “moral pervert” and voices in audience; “Take him out;” State v. Zorn, 202 Mo. 12, 100 S.W. 591, 600 (1907) — -not properly preserved; State v. Clancy, 225 Mo. 654, 125 S.W. 458, 459 (1910) —“police character;” State v. James, 216 Mo. 394, 115 S.W. 994, 998 (1909) — comment on failure to testify; State v. Allen, 363 Mo. 467, 251 S.W.2d 659, 662 (1952) — improper evidence; State v. Malone, 301 S.W.2d 750, 760 (Mo. 1957) — “confessed convict” not improper under facts. See also State v. Poole, 556 S.W.2d 493, 495 (Mo.App.1977) (collecting cases of epithets held not prejudicial); State v. Mayfield, 562 S.W.2d 404 (Mo.App.1978).


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    Gilbert GONZALES, Jr., Appellant, v. Daniel REYES, Appellee.
    No. 15817.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 14, 1977.
    Rehearing Denied Jan. 18, 1978.
    Michael Rizik, Samuel C. Fried, San Antonio, for appellant.
    Sol J. Casseb, III, Goodstein & Semaan, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a comparative negligence case. Plaintiff, Gilbert Gonzales, Jr., appeals from a judgment that both plaintiff and defendant, Daniel Reyes, take nothing in a suit filed in the County Court at Law in Bexar County, Texas by Gonzales against Reyes for damages to plaintiff’s automobile arising out of an automobile collision between plaintiff and defendant. Reyes filed both an answer and a counter claim or cross action for damages to his automobile. Trial was to the court, without a jury, who found that both plaintiff and defendant were equally at fault (50% each); that the damage to plaintiff’s automobile was $1,000.00; and that the damage to defendant’s automobile was $1,500.00. Judgment was entered by the trial court that both plaintiff and defendant take nothing. Only plaintiff appealed and defendant does not herein seek any affirmative relief, but asks that the judgment of the trial court be affirmed.

The trial court filed findings of fact and conclusions of law which found in substance: that plaintiff was negligent in failing to move his vehicle from the roadway; that defendant was guilty of driving at an excessive speed, failing to keep a proper lookout, and failing to make a proper application of brakes; that the amount of damages suffered by plaintiff was $1,000.00; that the amount of damages suffered by defendant was $1,500.00;' and that the negligence attributable to plaintiff and defendant was each 50%.

Plaintiff, by nine points of error, asserts that the judge erred in: (1) refusing to disqualify himself; (2) commenting on the weight of the evidence, and intimidating a witness by improperly interrogating the witness; (3) finding that plaintiff was 50% at fault because there is: (a) no evidence to support such finding; (b) insufficient evidence to support such finding; and (c) such finding is against the great weight and preponderance of the evidence; and (4) in entering a take nothing judgment when the court’s finding of equal negligence and proximate cause would only support a judgment for plaintiff, since defendant at no time properly proved his measure of damages.

This Court has recently handed down a comparative negligence case where the sole issue before us was whether the Texas Comparative Negligence Statute allows recovery where the plaintiff’s negligence is equal to but no greater than the defendant’s negligence. See Leyva v. Smith (Tex. Civ.App. — San Antonio, October 19, 1977, not yet reported). In Leyva the trial court found that plaintiff and defendant were equally at fault (50% each); that the damage sustained by plaintiff was $300.00; and that plaintiff was entitled to judgment in the amount of $150.00. We affirmed such judgment, holding that a plaintiff who is found 50% negligent can recover 50% of his damages from a defendant who is found to be equally at fault.

Numerous authorities in support of such holding are cited in the Leyva opinion, but in this connection, see Willingham v. Hagerty, 553 S.W.2d 137 (Tex.Civ.App. — Amarillo, no writ); McGowan v. Story, 70 Wis.2d 189, 234 N.W.2d 325, 330 (1975); C. Heft & C. Heft, Comparative Negligence Manual § 3.510 (Supp.1977); Cadena, Comparative Negligence and the Special Verdict, 5 St. Mary’s L.J. 688 (1974); Fisher, Nugent & Lewis, Comparative Negligence: An Exercise In Applied Justice, 5 St. Mary’s L.J. 1 (1974); Comment, Comparative Negligence In Texas, 11 Hous.L.Rev. 101 (1973); Abraham & Riddle, Comparative Negligence — A New Horizon, 25 Baylor L.Rev. 411, 414 (1973).

The case before us differs from Leyva in that in Leyva the only damages involved were those of plaintiff, while in the case before us we have both damages to plaintiff and defendant, one being in a larger amount than the other.

Assuming that all of the court’s findings of fact are correct, this case must still be reversed. The trial court found both parties equally at fault and found plaintiff’s damages to be $1,000.00 and defendant’s damages to be $1,500.00. Under such circumstances, the entry of a take nothing judgment as to both parties was erroneous and improper.

From an examination of the entire record we have concluded that the interests of justice will best be served by a general remand. Without discussing plaintiff’s numerous points of error, we agree with his contention that defendant did not properly prove the damages to his car. The general rule for measuring damages to personal property is the difference in the market value immediately before and immediately after the injury to such property at the place where the damage was occasioned. Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127, 128 (1950); Wilson v. Metcalf, 257 S.W.2d 855 (Tex.Civ.App. — Amarillo 1953, writ ref’d n.r.e.); 17 Tex.Jur.2d Damages § 92 (1960). There is no such proof in the case before us.

In view of our general remand, we do not deem it necessary to discuss appellant’s other points of error.

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

      . In dealing with cross actions in a comparative negligence situation, the set-off provisions of § 2(f) of the statute come into play. Under this provision, if a verdict results in two claimants being liable to each other, the claimant who is liable for the greater amount is entitled to a credit towards his liability in the amount of damages owed him by the other claimant. For example, if the jury found that plaintiff suffered losses in the amount of $10,000.00; the defendant’s losses amounted to $5,000.00; and that each party was 50% at fault, plaintiff would be entitled to recover $5,000.00 from defendant, while defendant would be entitled to recover $2,500.00 from plaintiff. The net result would be that plaintiff would recover $2,500.00. Cadena, Comparative Negligence and the Special Verdict, 5 St. Mary’s L.J. 688, 699 (1974); Fisher, Nugent & Lewis, Comparative Negligence: An Exercise in Applied Justice, 5 St. Mary’s L.J. 655 (1974).


author: PRESLAR, Chief Justice.

text:
    Mary Theresa MILLER et al., Appellants, v. Dr. Robert C. HARDY et al., Appellees.
    No. 6637.
    Court of Civil Appeals of Texas, El Paso.
    Jan. 11, 1978.
    Rehearing Denied Feb. 8, 1978.

      John H. Holloway, Houston, for appellants.
    Groce, Locke & Hebdon, Thomas H. Sharp, Jr., Thomas H. Crofts, Jr., Lang, Cross, Ladon, Boldrick & Green, Paul M. Green, San Antonio, for appellees.
   OPINION

PRESLAR, Chief Justice.

This is a medical malpractice action against a hospital, anesthesiologist, surgeon and assisting surgeon. Questions involved are the propriety of a directed verdict and rulings on the admissibility and inadmissibility of certain evidence. Plaintiff appeals from a take nothing judgment. We affirm.

Trial was to a jury and when the Plaintiff rested, the trial Court instructed a verdict in favor of Appellees, Hardy and Branch, and subsequently, after a jury verdict favorable to the anesthesiologist and the hospital, judgment was entered that Plaintiff take nothing against all Defendants.

Appellant’s husband, John Miller, underwent surgery by Drs. Hardy and Branch on the sciatic nerve in his left buttock. Thereafter, he suffered paralysis from the waist down, and it is the contention of Appellant that the paralysis resulted from injury to his spinal cord while he was being rolled either from the stretcher to the operating table or from the operating table to the stretcher. Appellant’s first point of error is that the trial Court erred in directing a verdict as to Drs. Branch and Hardy since the evidence raised a fact issue as to whether or not they participated in moving the patient while he was under anesthetic and at a time that the Plaintiff’s evidence shows that the injury could have occurred, and the pleadings and evidence raised a theory of res ipsa loquitur. As to the status of the law in Texas, it is probably best stated in Goodnight v. Phillips, 418 S.W.2d 862 (Tex.Civ.App. — Texarkana 1967, writ ref’d n. r. e.), wherein the Court said: “There are only very, very few instances where a pleading of res ipsa loquitur is applicable in medical malpractice cases.” We do not decide whether this case is one in which the doctrine would be applicable. Rather, we assumed, without deciding, that it would be applicable and hold that Plaintiff failed to make out a case under the doctrine. One factor or element of the doctrine is that the instrumentality causing an injury is shown to have been under the management and control of the Defendant. Mobil Chemical Company v. Bell, 517 S.W.2d 245 (Tex.1974). Appellant, as Plaintiff, pled and proved that the anesthetist was in charge at all times during the surgical proceedings, except for the actual surgery itself. Appellant then proved that his injuries did not occur as a result of the surgery. Surgery being the only thing under the control of Drs. Hardy and Branch, this evidence definitely excludes them from the application of the doctrine. Also, it should be noted that the paralysis did not become apparent to anyone until some four hours after the surgical procedure — a further reason to hold that the doctrine is inapplicable to the two Doctors whose only involvement was during the time of the actual surgery.

Plaintiff’s suit is bottomed on the allegation that her husband sustained traumatic injury of the spinal cord while under anesthetics. She sought to prove that this happened when he was rolled from the stretcher onto the operating table or when the procedure was later reversed after surgery. The only testimony connecting either Ap-pellee Hardy or Appellee Branch with the movement of the patient from the stretcher to the operating table and back was the following by the anesthesiologist, Dr. Rabke:

“Q. All right. Who rolled him?
“A. Myself, a nurse and two orderlies, and I think one of the doctors. * * * ”

This was the only evidence in the record as to the possible involvement with these two Appellees; neither had been called as a witness at that point, but after the directed verdict had been granted and the case proceeded to the jury as to the other Defendants, Dr. Hardy was called as a witness and testified as to his possible involvement. This belated testimony would have no bearing on the direction of the verdict and it is not considered.

Considering the testimony in the light most favorable to the Appellant and indulging every intendment reasonably deductible from the evidence in favor of the Appellant, as we are required to do under Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422 (1952), we conclude that an issue of fact is not raised and that the trial Court properly granted the directed verdict. These two doctors were not sued jointly or as partners but as individual Defendants. The maximum of the evidence is that “one” of the doctors helped roll him. At best, the jury could only speculate as to which one.

By Points of Error 3 through 20, Appellant complains of the action of the Court in admitting into evidence certain records from the Veteran’s Administration Hospital in Houston, Texas, marked as Defendant’s Exhibit IB. These records came into Court attached to the deposition of one Dr. Conde. Dr. Conde had never seen or examined the patient, but prior to giving his deposition at Appellant’s request, he reviewed these records and other hospital records. In taking Dr. Conde’s deposition, Appellant identified each of these hospital records and had them marked as an exhibit and attached to the Doctor’s deposition. On trial, Appellant offered in evidence portions of Dr. Conde’s deposition in which the Doctor read portions of the exhibits and then expressed opinions based thereon. After Appellant offered portions of Dr. Conde’s deposition, Appellees then offered portions of it, including an opinion by the doctor based on the Veteran’s Administration Hospital record, and thereafter Appellant made further offerings from the deposition.

Appellant’s objections are first to the admission of these hospital records as a whole. She then has separate points of error as to specific portions of the records. We are of the opinion that the records were admissible for the limited purpose of showing the basis of the doctor’s opinion, and there being no request that they be so limited, their admission without such limitation is waived.

The rule is stated by Wigmore:

“A physician testifying as to a patient’s health may be asked, like any other witness, for the reasons for his conclusions —either on direct examination, to show his opinion well-founded (Sec. 655 supra), or on cross-examination, to show it ill-founded (Secs. 992, 994 supra); and incidentally the fact that it is in part or entirely founded on the statements of the patient or of others may thus be brought out. * * * ”

6 Wigmore, Evidence, Sec. 1720 (Chadbourn rev. 1976). The rule is particularly applicable here because these hospital records were the sole basis of the doctor’s information. This Court, in an opinion by Judge Ward, quoted from Professor McCormick’s works as follows:

“ * * * The correct rule, we believe, is set forth in McCormick & Ray, Texas Law of Evidence Sec. 835:
“ ‘It is the general rule that an expert witness, having testified to an opinion, is permitted to give in evidence, either in direct or cross-examination, an account of the basis upon which he founds the opinion. * * * Accordingly, when a physician has observed and been consulted by a patient, and testifies as an expert witness with reference to the nature of the ailment, his evidence, in giving the reasons for his opinion, as to statements made to him by the patient upon which his opinion has been partly founded is admissible. Since they are not offered as evidence of the facts declared but merely as an explanation of the previous opinion, they are not hearsay and hence are not subject to the restrictions which hedge in the use of such declarations as hearsay.’ ”

Travelers Insurance Company v. Smith, 448 S.W.2d 541 at 543 (Tex.Civ.App. — El Paso 1969, writ ref’d n. r. e.). This Court then cited Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57,112 S.W.2d 170 (1938); Bean v. Hardware Mutual Casualty Company, 349 S.W.2d 284 (Tex.Civ.App. — Beaumont 1961, writ ref’d n. r. e.). To those authorities may now be added Lewis v. Southmore Savings Association, 480 S.W.2d 180 (Tex.1972). The limited purpose rule is often employed in the trial of condemnation cases where the expert appraiser testifies as to market value. Evidence of facts surrounding other sales is admissible for the limited purpose of showing what the appraiser considered in arriving at his opinion of value, though not as direct original evidence of the facts as to such sales. State v. Oakley, 163 Tex. 463, 356 S.W.2d 909 (1962); State v. Baker Bros. Nursery, 366 S.W.2d 212 (Tex.1963).

It is the duty of the party objecting to the introduction of evidence which is admissible for one purpose but not for am other to request the Court to limit the purpose for which it might be considered, and failing to do so he may not be heard to complain that the jury may have considered the evidence for other purposes. Fisher Construction Company v. Riggs, 320 S.W.2d 200 (Tex.Civ.App. — Houston), rev’d on other grounds, 160 Tex. 23, 325 S.W.2d 126 (1959); Travelers Insurance Company v. Barrett, 366 S.W.2d 692 (Tex.Civ.App. — El Paso 1963, no writ); Texas Power & Light Company v. Adams, 404 S.W.2d 930 (Tex.Civ. App. — Tyler 1966, no writ); 23 Tex.Jur.2d Evidence, Sec. 122, p. 173 (1961).

By Points of Error 21 through 26, Appellant complains of the admission into evidence of Renger Memorial Hospital Records. By specific objections to certain portions of the records, Appellant objects to them as being medical opinions as to which medical minds could differ and not being subject to cross-examination. It is held that the determination of whether hospital records consist of a factual statement by physicians so as to be admissible or consist of opinions or diagnoses as to which medical minds could differ should be left largely to the sound discretion of the trial Court. Martinez v. Williams, 312 S.W.2d 742 (Tex. Civ.App. — Houston 1958, no writ). Appellant has failed to show specifically or demonstrate wherein the contents of the Ren-ger Memorial Hospital Records are subject to reasonable medical differences. Additionally, no abuse of discretion is shown. The records of the Renger Memorial Hospital are proven up through a written deposition of the custodian. The requirements of Tex.Rev.Civ.Stat.Ann. art. 3737e were met and there was no error in their admission.

The jury was apprised by various comments of counsel for all parties during the trial that another lawsuit was involved for the identical injury. In the course of testimony by the deceased’s son, he was asked if the jury awarded any sum of money in the other trial. The Court sustained Appellees’ objection that the matter was irrelevant, and Appellant assigns error to such ruling. Appellant argues that the jury not being informed of the results of that trial, they were left with an inference that the Plaintiff had recovered for injuries in the first suit and was now seeking to recover a second time in the case before them. The only information the jury had was that there had been another lawsuit. From that, they could have reached the inference which the Appellant urges. However, since the Defendants objected, the jury could have inferred also that the Appellant won the prior case and thus had established the justness of his cause and set a precedent for them to follow in this case. Thus, the situation presents only speculation as to what the jury may have inferred and forms no basis for reversible error under Rule 434, Tex.R.Civ.P.

By Issue No. 1, the jury refused to find that Mr. Miller suffered an injury while under a general anesthetic and, by Issues Nos. 3 and 5, the jury refused to find that he sustained an injury due to the negligence of either Dr. Rabke, the anesthesiologist, or Baptist Memorial Hospital or their agents, servants or employees. These are issues on which the Appellant had the burden of proof and the negative findings call for an inquiry as to whether or not the Appellant carried the burden of proof. Appellant’s points of error are phrased in terms that the evidence, as a matter of law, supports a contrary finding as to each issue, and the negative findings are against the great weight and preponderance of the evidence. O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex.1976).

In considering the matter of law points, we have disregarded all evidence to the contrary, considered only the evidence and inferences favorable to the Appellant’s position, and we overrule these legal sufficiency points. In considering the points as to the factual sufficiency of the evidence, we have considered all of the evidence, both pro and con, and those points are overruled.

All points of error have been considered and all are overruled. The judgment of the trial Court is affirmed.


author: WARD, Justice.

text:
    Jeanette Rose CASS et al., Appellants, v. ESTATE of Robert E. McFARLAND et al., Appellees.
    No. 6654.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 1, 1978.
    Rehearing Granted March 22, 1978.

      Joseph (Sib) Abraham, Jr., Duane A. Baker, Charles Louis Roberts, El Paso, for appellants.
    Highsmith & Highsmith, Thomas E. Hi-ghsmith, Kemp, Smith, White, Duncan & Hammond, Joe Lea, Jr., Michael D. McQueen, El Paso, for appellees.
   OPINION

WARD, Justice.

Plaintiffs are the surviving wife, child, and parents of Armando Cass-Ruiz, and they sue for his death which occurred when a private plane crashed in Mexico. Defendants, the “Estate of Robert E. McFarland and Marsha Lynn McFarland,” upon their motion, were dismissed as Defendants in this lawsuit. Interesting briefs and arguments have been presented concerning the application of Tex.Rev.Civ.Stat.Ann. art. 4678, as amended effective September 1, 1975, but, alas, to no avail as the resolution of the threshold question of finality of the judgment below is adverse to our jurisdiction and we dismiss the appeal.

In the Plaintiffs’ first amended petition, there is designated an “Alternative Pleading” wherein it is stated that “by way of alternative pleading only,” the same Plaintiffs assert a cause of action and join as a party Defendant Gulf Insurance Company, and allege what they designate as a cause of action for breach of a written contract. Gulf Insurance Company thereafter filed its answer by its attorneys. Next, a motion to dismiss was filed by the “Estate of Robert E. McFarland and Marsha Lynn McFarland” by their respective attorneys asking that the trial Court dismiss the action against those two named Defendants. Thereafter, on March 16, 1977, this motion of dismissal was acted on and an order was entered that the Defendants, “the ESTATE OF ROBERT E. McFARLAND and MARCIA LYNN McFARLAND be, and are hereby dismissed as Defendants in this lawsuit.” It is from this order that the Plaintiffs have attempted to appeal, although their contract action against the Gulf Insurance Company still remains on file.

An appealable judgment is one that disposes of all parties and issues in the case, and a judgment which does not dispose of all the issues and all the parties is not final, and no appeal can be prosecuted therefrom. In Tellez v. Tellez, 531 S.W.2d 368 (Tex.Civ.App. — El Paso 1975, no writ), we had occasion to speak of this recurring problem resulting from poorly drafted judgments and how the Supreme Court, by use of a presumption of finality for appellate purposes only, has provided a way for review of what otherwise would be interlocutory judgments. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966). That rule is to the effect that an appellate Court may presume that unmentioned issues or parties have been disposed of when the judgment is not intrinsically interlocutory in character, is entered and rendered in a case regularly set for a trial on the merits, and when no order for separate trial of issues has been entered. Contrary to the facts of the Aldridge case and the cases such as Tellez v. Tellez, supra, we do not now have a judgment entered in a case regularly set for a conventional trial on the merits. As noted in the order of dismissal, the Court was only hearing the motion for dismissal filed by the Defendants, the “Estate of Robert E. McFarland and Marsha Lynn McFarland,” and acting on that motion, they were dismissed as Defendants in this lawsuit. Following the reasoning contained in Davis v. McCray Refrigerator Sales Corporation, 136 Tex. 296, 150 S.W.2d 377 (1941), we cannot indulge in the presumption because if the trial Court intended to retain the Plaintiffs’ action against Gulf Insurance Company for further consideration, it would have had to enter the very judgment which it did enter and upon which an appeal is now attempted. There is no way that the presumption of finality of the judgment can be indulged in this case.

Because all of the issues were not disposed of and no order of severance appears in the record, we hold that the judgment is interlocutory and not appealable. The appeal is dismissed because we do not have jurisdiction.

ON MOTION FOR REHEARING

The Plaintiffs have presented their motion for rehearing and motion to permit filing of supplemental transcript. The supplemental transcript reflects that before the order was entered wherein the Estate of Robert E. McFarland and Marcia Lynn McFarland were dismissed as Defendants, the trial Court, upon motion, had severed the Plaintiffs’ suit against Gulf Insurance Company from the present controversy. It now appears that the order of dismissal appealed from was a final appealable judgment. The supplemental transcript has been ordered filed and the Plaintiffs’ motion for rehearing is granted. We affirm the judgment of the trial Court.

The Plaintiffs alleged that the Plaintiff, Jeanette Rose Cass, and her minor child, Armando Leo Cass, are residents of New York, and that the surviving Plaintiff/parents are residents of Arizona; that the private airplane was owned and piloted by Robert E. McFarland, and both he and his passenger, Armando Cass-Ruiz, were killed when the airplane crashed on April 25,1974, in the Republic of Mexico; and that all acts of negligence occurred in the Republic of Mexico. The Plaintiffs sued to recover for the conscious pain and mental anguish suffered by Cass immediately prior to his death and for the funeral expenses incurred. The Plaintiff, Jeanette Rose Cass, sued for loss of support and maintenance, loss of care and companionship, and general assistance about the home. As next friend for the minor, she sued for deprivation of the support, nurture, care, training, and education that the minor could have expected. The surviving parents sued for loss of financial assistance and support which they anticipated they would have received had the decedent lived.

The motion to dismiss, as filed by the “Estate of Robert E. McFarland and Marsha Lynn McFarland,” had as its grounds that: (1) Plaintiffs’ petition failed to state a cause of action upon which relief could be granted because the action was governed solely by the laws of Mexico where the accident occurred; (2) there was no common law action for wrongful death in Texas; (3) the recovery of damages was sought under the laws of Mexico and the measure of damages was sought under the laws of Texas; and (4) the Texas Wrongful Death Act and Texas Survival Act had no extraterritorial effect and were not applicable to the Mexico airplane crash and death at the time and on the date it occurred. As previously stated, as a result of that motion, those Defendants were dismissed from the lawsuit. Upon request, agreed findings of fact were entered by the trial Court reflecting the facts to be as alleged in the Plaintiffs’ petition. In addition, agreed findings were to the effect that the fatal flight originated in New Mexico and that the Estate of Robert E. McFarland was pending in El Paso County. Conclusions of law were entered that the case should be dismissed without prejudice to the rights of the Plaintiffs inasmuch as the deceased, Armando Cass-Ruiz, died at Arteaga in the Republic of Mexico, and the dissimilarity of laws between the State of Texas and the Republic of Mexico caused the dismissal. While this last finding that the case should be dismissed because of the dissimilarity of law between the State of Texas and the Republic of Mexico is labeled a “conclusion of law,” we will treat it as that as well as a finding of fact, as both parties to this appeal treat it as such and both assume that the dissimilarity of such laws has been established as a fact at the hearing on the motion to dismiss. Where the law of another country controls in a given case, that law must be properly proven as a fact. Garza v. Greyhound Lines, Inc., 418 S.W.2d 595 (Tex.Civ.App. — San Antonio 1967, no writ).

Prior to the 64th Legislature, the rule was established that in a tort action, the law of the place of the tort must be looked to in determining the substantive rights of the parties. That rule of lex loci delicti withstood all Court made attacks, and the principle was established that the Wrongful Death Statute, Article 4671, Tex.Rev.Civ. Stat.Ann., did not have extraterritorial force. Thus, in Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex.1968), that rule was repeated. It was also reaffirmed that Article 4678, as then written, did not give extraterritorial effect to the Texas Wrongful Death Statute, and it was pointed out that the purpose of Article 4678 was simply to provide that a right of action arising under the laws of a foreign state or country for wrongful death could be enforced in the Texas Courts. Since Article 4671 did not apply to wrongful acts resulting in death which were committed outside of Texas, the only basis for this purely statutory action then became the out-of-state Statute which would be enforceable in Texas by virtue of Article 4678. As a consequence where the injury or death resulted from an accident occurring in Mexico and the proof established that the laws in Mexico relating to the right of action, the measure of damages, and the terms of recovery were so dissimilar to the laws of this State that the Texas Courts could not enforce them, the end result was a dismissal of the Plaintiffs’ cause of action. Carter v. Tillery, 257 S.W.2d 465 (Tex.Civ.App. — Amarillo 1953, writ ref’d n. r. e.).

Articles 4671 and 4678 have now been amended effective September 1, 1975, and the Plaintiff contends that the Texas Wrongful Death Statute can now have extraterritorial effect, and that the laws of this State can now be applied to enable a recovery in this ease. We do not reach an answer to that contention. Statutes will not be given retroactive effect in absence of a clearly expressed legislative intent to the contrary. Brooks v. Texas Employers Insurance Association, 358 S.W.2d 412 (Tex. Civ.App. — Houston 1962, writ ref’d n. r. e.). The recognized exception that a statute can be given retroactive effect applies where the statute deals with procedural or remedial matters, as opposed to substantive rights.

Substantive law has been defined as including “ ‘ * * * those rules and principles which fix and declare the primary rights of individuals as respects their persons and their property, and quite generally fix the type of remedy available in case of invasion of those rights. * * * Brooks v. Texas Employers Insurance Association, supra at 414. And, again, as “ ‘ * * * the positive law of duties and rights which give rise to a cause of action.’ ” Petroleum Casualty Company v. Canales, 499 S.W.2d 734 at 737 (Tex.Civ. App. — Houston [1st Dist.] 1973, writ ref’d n. r. e.).

Prior to the amendment, we were required to follow the substantive law of the foreign state or country. Now, if a change has been effected, as contended by the Plaintiffs, it would have to be a change in the substantive law field as recognized by a different forum. Since the amendments are not procedural or remedial, they do not have retroactive application. See Penry v. Wm. Barr, lac., 415 F.Supp. 126 (E.D.Tex.1976).

The judgment of the trial Court is affirmed.


author: DIES, Chief Justice.

text:
    CHURCH OF LIFE, Appellant, v. Steve ELDER, Appellee.
    No. 8023.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 9, 1978.
    Larry W. Bass, Houston, for appellant.

      Chárles W. Boyd, Conroe, for appellee.
   DIES, Chief Justice.

Curtis L. Mason and wife gave a promissory note to a Hempstead bank, in exchange for a loan, secured by a first lien on property in Waller County. This lien was subsequently transferred to Steve Elder, appellee herein.

Thereafter the Masons borrowed money from appellant Church of Life, giving it a promissory note and a second lien on the same property.

The Masons were in default on both notes, and in January 1976 Elder’s trustee foreclosed, and Elder purchased the property at the sale. The Church of Life was not represented at the sale. So, its second lien was extinguished. It then brought this suit below contending inter alia that it had an agreement with Elder to buy his lien or sell its second lien; that this was a binding contract reached before the sale and Elder’s breach, and fraud was the reason it (appellant Church of Life) was not represented at the sale. Trial was to the court without a jury who gave judgment to Elder and from which the Church of Life perfects this appeal.

We are met at the threshold with appellant’s contention that the trial court granted a motion at the conclusion of plaintiff’s evidence (for defendant-appellee-Elder) which was the legal equivalent of granting a motion for an instructed verdict in a jury trial. And therefore, upon review, we must presume to be true the evidence of the plaintiff (appellant Church of Life), who is entitled to the most favorable construction of such evidence as will properly bear, and is entitled to the benefit of all reasonable inferences arising therefrom, citing Lorino v. Crawford Packing Co., 169 S.W.2d 235 (Tex.Civ.App. — Galveston 1943), affirmed, 142 Tex. 51, 175 S.W.2d 410 (1943), and Rhinetubes, Inc. v. Norddeutscher Lloyd, 335 S.W.2d 269 (Tex.Civ.App. — Houston 1960, writ ref’d n. r. e.). See also the recent ease of Allen v. Nesmith, 525 S.W.2d 943, 945 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ ref’d n. r. e., 531 S.W.2d 330), and the many authorities cited therein.

It is true that the trial court in our case granted judgment for the defendant— on his motion — when the plaintiff (Church of Life) rested its.case. However, the case was fully developed, and defendant Elder (appellee) was called for cross examination by plaintiff’s (Church of Life) attorney. The court then had before him both versions of the conversations between plaintiff (Church of Life) and defendant Elder concerning the agreement or lack of one for the two lienholders to buy or sell to the other. While we have been unable to find precise authority when this situation occurs, it would seem logical to us to apply the rules of Cortez v. Cortez, 457 S.W.2d 131 (Tex.Civ.App. — San Antonio 1970, no writ), and Williams v. Cooper, 504 S.W.2d 564 (Tex.Civ.App. — Eastland 1973, no writ), that a trial court’s findings of fact will be upheld on appeal unless manifestly erroneous and overruled by an appellate court only when they are not supported by any evidence of probative value or are so against the great weight and preponderance of the evidence as to be manifestly wrong. Where there is such evidence, the findings of the trial court are controlling on the reviewing court and will not be disturbed, even though the evidence is conflicting and the appellate court might have reached a different conclusion.

All of appellant’s points of error urge that the following findings and conclusions by the trial court are supported by no evidence or are against the great weight and preponderance of the evidence: that there was no agreement or contract between plaintiff (Church of Life) and defendant (Elder) in regard to the property; that there were no fraudulent misrepresentations made by defendant (Elder) to plaintiff (Church of Life) in regard to the property.

In passing on no evidence points we consider only the evidence and inferences therefrom which tend to support the judgment and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). A contention that the evidence is against the great weight and preponderance of the evidence directs us to all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

It is quite true, as appellant Church of Life argues, that its representative, Rinyu, emphatically affirmed that he and Elder (appellee and first lienholder) had an agreement that one or the other would buy the other lien. But, the court also heard that Rinyu was a Houston mortgage broker who knew the effect a foreclosure by Elder would have on Church of Life’s second lien. Rinyu knew the date, time, and place of the foreclosure sale. Elder just as emphatically denied any agreement was ever made by him and Rinyu. In a nonjury case, the trial court is the judge of the credibility of the witnesses and the weight to be accorded their testimony, and his findings carry the same weight as jury findings. Central National Bank v. Booher, 557 S.W.2d 563 (Tex.Civ.App. — Beaumont 1977, writ filed). All of appellant’s points are overruled. The judgment of the trial court is affirmed.

AFFIRMED.


author: .KEITH, Justice.

text:
    Vera Ellen Waters BLOCK, Appellant, v. Billy Charles WATERS, Appellee.
    No. 8071.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 9, 1978.

      Charles S. Sexton, Orange, for appellant. Louis Dugas, Jr., Orange, for appellee.
   .KEITH, Justice.

Plaintiff below appeals from a take nothing judgment entered in her suit to reduce to judgment the unpaid child support payments defendant had been ordered theretofore to pay for the support of his children. We will speak of the parties as they originally appeared in the trial court in the divorce proceeding.

On November 21, 1966, at a time when both parties were residents of Orange County, the trial court entered judgment dissolving the bonds of matrimony, awarded the plaintiff/mother custody of the two minor children born to the marriage and ordered defendant/father to pay thirty dollars per week for the support of such children, the first payment being due and payable on November 18, 1966, and a like installment being due and payable on Friday of each week thereafter. All payments were ordered to be made “at the Child Support Office, Orange County Courthouse, Orange County, Texas.”

The mother’s petition was filed under the provisions of Tex.Family Code Ann. § 14.-09(c) (1975), alleging the entry of the original judgment and defendant’s failure to make the payments in accordance with said judgment. Upon the hearing at which defendant appeared in person and by counsel, plaintiff proved the entry of the original judgment and by the records of the Child Support Office that defendant had made one fifteen dollar payment (on December 5, 1966) and that at the time of the hearing (July 29,1977), he owed $16,755.00 “through today.”

Over plaintiff’s objections, defendant offered oral and written evidence showing (a) that pursuant to an order entered in a criminal proceeding in Grant Parish, Louisiana, he had made certain payments which were, in turn, sent by the clerk’s office of that court to plaintiff; (b) that his children mentioned in the Texas judgment were receiving some benefits from the Social Security Administration because of defendant’s total disability; and (c) he had no funds, was totally disabled, unable to work, and could not make the payments as ordered in the Texas divorce decree. Our record does not reveal the precise amount which has been paid to the children by the Louisiana criminal court order or the amount the children are receiving from Social Security.

At the conclusion of the hearing, the trial court denied all relief sought by plaintiff and this appeal follows. We have findings of fact and conclusions of law and also have a complete statement of facts containing all of the oral and written testimony introduced upon the trial. For the reasons now to be stated, we reverse the judgment of the trial court and remand the cause with instructions to grant the relief sought by plaintiff after ascertaining the precise amount due.

Our recitation has been based upon the record presented to us in the transcript and statement of facts. The findings of fact are completely lacking in eviden-tiary support in the record. As was said in Stephenson v. Perlitz, 537 S.W.2d 287, 289 (Tex.Civ.App. — Beaumont 1976, writ ref’d n. r. e.):

“Findings of fact are not conclusive on appeal when, as in this case, a statement of facts appears in the record. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156, 158 (1950); Rosetta v. Rosetta, 525 S.W.2d 255, 260 (Tex.Civ.App. — Tyler, 1975, no writ). And, findings of fact are binding on the appellate court only if supported by evidence of probative force.”

Since the findings of fact filed by the trial court are without support in the evidence, we will pass upon plaintiff’s points of error without regard thereto. See Whitworth Estate v. Mangels of Texas, Inc., 363 S.W.2d 851, 860 (Tex.Civ.App. — Waco 1962, no writ). See also 4 McDonald, Texas Civil Practice § 16.10, at 29 (1971 Rev.).

Defendant, by making payment to the clerk of the Louisiana District Court, avoided confinement in the penitentiary for “Criminal Neglect of Family,” as stated in that court’s judgment; he did not, in making the Louisiana payments, comply with the terms of the Texas divorce decree. Under our record, only the State of Louisiana and defendant were parties to the proceeding in Grant Parish. Moreover, plaintiff’s residence and domicile as well as the domicile of the minor children was in Orange County, Texas. We hold, consequently, that the Louisiana order had no effect upon defendant’s obligations under the Texas decree.

Defendant urges that he is without any means of payment of the sums due under the Texas decree. This was not a contempt proceeding wherein such a defense, if conclusively established, might be available. Cf. Ex parte DeWees, 146 Tex. 564, 210 S.W.2d 145, 147 (1948); Ex parte Gonzales, 414 S.W.2d 656 (Tex.1967); Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967). Plaintiff’s suit seeking a money judgment against defendant posed no threat to his liberty and it was immaterial whether he could or could not satisfy such a judgment once rendered. Testimony as to the wealth or poverty of a party is ordinarily inadmissible upon the trial of a civil case. Not only is such testimony immaterial, its receipt may very well prove to be prejudicial. See 17 Tex.Jur.2d, Damages § 258, at 319-820 (1960), and authorities therein cited.

Plaintiff properly invoked the jurisdiction of the trial court to enforce a judgment of that court pursuant to a statute conferring upon her the specific right to the relief she sought. Harrison v. Cox, 524 S.W.2d 387, 392 (Tex.Civ.App. — Fort Worth 1975, writ ref’d n. r. e.). She established her right to prevail and defendant tendered no viable defense. We would render judgment for plaintiff but for the incompleteness of our record: We are unable to determine precisely the sums which plaintiff and her children have received under the Louisiana court order and from the Social Security Administration paid on behalf of defendant.

We remand the cause to the trial court with instructions to enter judgment for the plaintiff for the aggregate amount of the payments which have matured and accrued under the original divorce decree with legal interest upon each such payment from the date when the same came due until the date of judgment.

The trial court will compute the aggregate amount of the payments which defendant made under the Louisiana order and such sum, with legal interest, shall be deducted from the sum found pursuant to the first instruction. The trial court shall also find and determine the aggregate amount of the payments received by said children from the Social Security Administration and such amount, including interest thereon, shall likewise be deducted from the gross amount due under the original decree. The resulting judgment which we order to be entered will bear interest from the date of entry at the rate of nine per cent per annum. All costs in all courts are adjudged against the defendant.

Reversed and Remanded with instructions.

      . § 14.09: “(c) On the motion of any party entitled to receive payments for the benefit of a child, the court may render judgment against a defaulting party for any amount unpaid and owing after 10 days’ notice to the defaulting party of his failure or refusal to carry out the terms of the order. The judgment may be enforced by any means available for the enforcement of judgments for debts.”

      . We summarize the findings: (1) Defendant has paid child support for the benefit of his children; (2) he has paid child support pursuant to an order of the District Court in Louisiana; (3) he has complied with the orders of the Louisiana Court; (4) that he has paid child support within his ability to pay; (5) that he is disabled and drawing Social Security disability payments as are his children; (6) he is not in arrears with his child support; and (7) that he is financially unable to pay child support.

      . Although, as noted later, we order that all payments made under the Louisiana order be applied upon the sums due under the Texas order to prevent double recovery.


text:
    Rodmiro GUZMAN, Appellant, v. AETNA CASUALTY & SURETY COMPANY, Appellee.
    No. 8056.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 16, 1978.

      Gerald J. Goodwin, Houston, for appellant.
    Edward J. Hennessy, Houston, for appel-lee.
   DIES, Chief Justice.

Rodmiro Guzman injured his knee when he fell off a house on which he was working as a roofer. Following an award to Guzman by the Industrial Accident Board, Aet-na Casualty & Surety Co. commenced this action. The parties were redesignated in the trial court, with Guzman as plaintiff and Aetna as defendant. At the conclusion of plaintiff’s case, the trial court granted defendant’s Motion for Instructed Verdict, on the basis that there was no evidence that at the time of his injury Guzman was employed by the Leo V. McConnell Company and covered by defendant’s insurance policy. Plaintiff appeals.

Plaintiffs initial complaint is that the trial court erred in granting defendant’s Motion for Instructed Verdict because, in the absence of a verified denial by defendant, plaintiffs status as Leo McConnell’s employee is presumed under Tex.R.Civ.P. 93(n)(6). This rule reads:

“(n) In the trial of any case appealed to the court from the Industrial Accident Board the following, if pleaded, shall be presumed to be true as pleaded and have been done and filed in legal time and manner, unless denied by verified pleadings:
(6) that the insurance company alleged to have been the carrier of the workmen’s compensation insurance at the time of the alleged injury was in fact the carrier thereof.

Our Supreme Court has interpreted this Rule to require a verified denial when the carrier denies the existence of a carrier-employer relationship. LeBeau v. Highway Insurance Underwriters, 143 Tex. 589, 187 S.W.2d 73 (1945); Continental Fire and Casualty Ins. Corp. v. Snow, 213 S.W.2d 720 (Tex.Civ.App. — Eastland 1948, no writ). In both of these cases, the carrier could not assert that the employer had less than the three employees necessary for coverage, in the absence of a verified denial.

No cases have required the carrier to file a verified denial if it wishes to contest a plaintiff’s status as an employee, nor can we see any reason to create such a requirement at this time. We believe that Rule 93(n)(6) was intended to remove from the plaintiff the burden of pleading and proving a valid contract of compensation insurance between the employer and the insurance company. This is a relationship best known to the insurance carrier, not the employee, and Rule 93(n)(6) aids the’plaintiff by presuming the existence of such a contract in the absence of a verified denial.

No such rationale exists for presuming an employee-employer relationship if the insurance carrier fails to file a verified denial. Where there is no written contract of employment, as in this case, employment status is dependent on the employer’s right to control the details of the plaintiff’s work. See Allstate Ins. Co. v. Scott, 511 S.W.2d 412 (Tex.Civ.App. — El Paso 1974, writ ref’d n. r. e.). The plaintiff, not the insurance carrier, is in the best position to testify as to these details.

The injured workman has the burden of proving that, at the time of his accident, he was an employee of the covered employer. Anchor Casualty Co. v. Harts-field, 390 S.W.2d 469 (Tex.1965); Goodnight v. Zurich Insurance Co., 416 S.W.2d 626 (Tex.Civ.App. — Dallas 1967, writ ref’d n. r. e.); Travelers Ins. Co. v. Gilliland, 459 S.W.2d 500 (Tex.Civ.App. — El Paso 1970, no writ). We cannot presume the existence of such an essential element of the plaintiff’s case simply because the insurance carrier has not filed a verified denial. This point is overruled.

Plaintiff’s second point of error complains that the trial court erred in excluding from evidence plaintiff’s Exhibits numbers 2 and 3. Exhibit 2 was a carbon copy, on defendant’s letterhead, of the insurance carrier’s statement of position before the Industrial Accident Board. Exhibit 3 is a copy of Exhibit 2, with all items deleted except those directly related to plaintiff’s employment status. Item 3 on both exhibits reads as follows:

“3. The carrier admits that the above named employee was in the employment of the above named employer on or about the date of injury.”

Exhibit 2 was submitted to the Industrial Accident Board by “Patsy Standridge, Claim Representative, Houston Casualty Claim Department.”

Plaintiff contends that these statements to the Board were admissions against interest by the carrier, and were therefore admissible as direct, substantive evidence at trial. Many courts have indeed held that, where a party takes a position at trial contrary to its position before the Board, then such statements are admissible on trial de novo. Charter Oak Fire Ins. Co. v. Adams, 488 S.W.2d 548 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); Transamerica Ins. Co. v. Beseda, 448 S.W.2d 915 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.); Texas Employers Ins. Ass’n v. Weber, 386 S.W.2d 835 (Tex.Civ.App.—Austin 1965, writ ref’d n. r. e.); Liberty Universal Ins. Co. v. Burrell, 386 S.W.2d 323 (Tex.Civ.App.—Fort Worth 1965, writ ref’d n. r. e.). We agree with this principle.

Plaintiff’s problem is not that the carrier’s statements to the Industrial Accident Board were per se inadmissible, but rather that plaintiff failed to properly authenticate such statements as having been made by an authorized agent of the insurance carrier. The record contains no evidence as to who Patsy Standridge is, if she actually is employed by the defendant, or if she is authorized to make such an admission as part of her normal business activities.

In Charter Oak Fire Ins. Co., supra, and Texas Employers Ins. Ass’n, supra, it was apparently presumed that the person writing the letter to the Board was the authorized agent of the carrier. In Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651, 655-56 (1952), our Supreme Court stated that before a statement filed with the Board is admissible at trial de novo, there must be a clear showing of agency, and that the statement is one of fact and not opinion.

We also note the case of Federal Underwriters Exchange v. Cost, 115 S.W.2d 706, 710 (Tex.Civ.App.—Beaumont 1938), affirmed 132 Tex. 299, 123 S.W.2d 332 (1938), where the only evidence that the defendant was in fact the insurance carrier for the employer was a letter on its letterhead written to plaintiff’s counsel while the case was still before the Industrial Accident Board. The signer of the letter did not testify at trial, but two other witnesses testified that the signer was the carrier’s claims adjuster when he wrote the letter. The court held that this testimony was sufficient authentication to make the letter admissible.

In the present case, there is no evidence that the letter was written by someone authorized to make admissions for the carrier. Plaintiff’s second point is overruled.

In his third and final point of error, plaintiff argues that the trial court erred in granting defendant’s Motion for Instructed Verdict, because there was sufficient evidence to raise the issue of employee relationship. The recognized test to make this determination is whether or not Leo McConnell had the right to control the details of Rodmiro Guzman’s work. Allstate Ins. Co. v. Scott, supra. Where the trial court has granted defendant’s Motion for Instructed Verdict, we must look only at the evidence most favorable to plaintiff, and disregard all other testimony. Elder v. Aetna Casualty & Surety Co., 149 Tex. 620, 236 S.W.2d 611, 613 (1951).

In the absence of an express contract of employment, actual exercise of control is the best evidence of the right to control. Allstate Ins. Co. v. Scott, supra. Acts of control sufficient to make an injured roofer an employee are discussed in detail in Gaines v. Allstate Ins. Co., 353 S.W.2d 471 (Tex.Civ.App.—Eastland 1961, writ ref’d n. r. e.).

In our case, even viewing the evidence most favorably to plaintiff, we have no written contract and no evidence of actual control by Leo McConnell over Rodmi-ro Guzman’s work. Nor do we have any testimony of the right to control such work. Any finding that Leo McConnell had the right to control Rodmiro Guzman’s employment would be supposition, and we agree with the trial court that there was no evidence to raise the issue of employment status. This point is overruled.

Having found no reversible error, we affirm the judgment of the trial court.

AFFIRMED.


text:
    LAND O’PINES DAIRY PRODUCTS, Appellant, v. Shelton S. McGRAW, Sr., Appellee.
    No. 8073.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 16, 1978.
    Clayton E. Dark, Jr., Lufkin, for appellant.
    Robert E. Hughes, Buna, for appellee.
   DIES, Chief Justice.

Plaintiff below brought suit in Hardin County alleging that Land 0’Pines Dairy Products, defendant below, owed him commissions for the sale of defendant’s products. Defendant filed a plea of privilege to be sued in Angelina County, which the trial court overruled, and from which defendant perfects this appeal.

Plaintiff was hired in Lufkin, Angelina County, as a route salesman to sell dairy products for the defendant. The contract was oral. The dairy products were trucked from Lufkin to Silsbee (Hardin County) where plaintiff would transfer them to his truck. The commissions allegedly owed by defendant were for sales made to Hardin County customers. Plaintiff’s pay for commissions earned was likewise sent on the same truck to Silsbee. These checks were drawn by defendant on the First Bank & Trust Co. of Lufkin, Texas. There was no express agreement where plaintiff was to be paid.

The only exception of Tex.Rev. Civ.Stat.Ann. art. 1995 (1964) involved is Section 23:

“Suits against a private corporation . may be brought in the county . in which the cause of action or part thereof arose . . .

Plaintiff argues that the cause of action or a part thereof arose in Hardin County because the commissions due him were for sales made in Hardin County. We disagree. When a contract requiring payment of money is silent as to the place of payment, it is regarded as payable at the domicile of the payor, in this case Angelina County. International Security Life Insurance Co. v. Robichau, 490 S.W.2d 871, 873 (Tex.Civ.App. — Beaumont 1973, no writ); Little v. Perry, 410 S.W.2d 286 (Tex.Civ.App. — Dallas 1966), reversed on other grounds, 419 S.W.2d 198 (Tex.1967). In Tanenbaum Textile Co. v. Sidran, 423 S.W.2d 635 (Tex.Civ. App. — Dallas 1967, writ ref’d n. r. e.), the action was by a salesman against the manufacturer for sales commissions, and the court at 638 said “ . . . and in the absence of a provision designating the place of payment the law makes the place of payment the domicile of the payor.” (citing authorities) See Texas Farm Bureau Cotton Ass’n v. Stovall, 113 Tex. 273, 253 S.W. 1101, 1106-1107 (1923).

The fact that plaintiff alleges the commissions were earned in Hardin County is not determinative because “Subdivision 23 of Article 1995 V.T.C.S., expressly limits venue to the county where the cause of action or a part thereof arose; it does not establish venue in a county where the plaintiff maintains its operations or where evi-dentiary matters transpired.” Payne & Keller, Inc. v. Southwest Tank & Treater Co., 491 S.W.2d 464, 467 (Tex.Civ.App.— Tyler 1973, no writ). See also Pesek v. Murrel’s Welding Works, Inc., 558 S.W.2d 39, 44 (Tex.Civ.App. — San Antonio 1977, writ filed).

The order of the trial court overruling appellant’s plea of privilege is reversed, and the cause is transferred to one of the District Courts of Angelina County for trial.

REVERSED and REMANDED.


author: KEITH, Justice.

text:
    Larry Lee STRINGER, Appellant, v. A. A. CROSS et al., Appellees.
    No. 8081.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 16, 1978.
    Louis Dugas, Jr., Orange, for appellant.
    Thomas G. King, Beaumont, for appel-lees.
   KEITH, Justice.

Plaintiff appeals from an adverse judgment entered in his suit for malicious prosecution. At the close of the evidence the trial court granted defendants’ motion for peremptory instruction and we will speak of the parties as they were designated in the trial court.

Early in the morning of January 17,1975, a large group of men engaged in a mass attack upon persons employed on a construction project near Port Arthur where Cross Construction Company was performing work for the United States Army, Corps of Engineers. Cross was injured in the melee and property belonging to the corporation was damaged or destroyed. The injuries Cross received necessitated his hospitalization and treatment. No criminal charges were filed immediately against any person by reason of the riot.

In April, 1975, Cross was interrogated by Captain White of the Sheriffs office and shown several pictures of unidentified persons and he signed an affidavit to the effect that one of the pictures was that of a man who was engaged in the riot at the construction site in January. Cross did not know plaintiff nor did he know the name of the person whose picture he was shown. Captain White prepared an affidavit which Cross signed including plaintiff’s name as the person shown in the picture.

Subsequently, Captain White went before the grand jury in Jefferson County and the jury returned an indictment charging plaintiff and several other individuals with the offense of riot as defined in Tex. Penal Code Ann. art. 42.02 (1974), because of their activities on January 17, 1975. Defendant Cross did not appear before the grand jury and there is no testimony that his affidavit given to White was exhibited to the grand jury before the indictment was returned.

Plaintiff having an alibi — being at work for another employer in an adjacent county at the time of the riot — brought suit against defendants for malicious prosecution. Early in the discovery process, and before the trial of the criminal case, it was learned that Cross had mistakenly identified plaintiff as having been at the scene and participating in the riot. At the trial, the criminal charge was dismissed.

Plaintiff does not contend that Cross entertained any specific malice against him nor does he contend that Cross even knew him or his name before the giving of the affidavit to the deputy sheriff.

Plaintiff’s single point of error, reproduced in the margin is extremely vague; but, considering the argument thereunder and the liberality of the briefing rules, we meet and decide such point. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943), reaffirmed in O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 113 (Tex.1976).

Our review will be under the rule laid down in Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex.1976), and Rogers v. Searle, 544 S.W.2d 114, 115 (Tex.1976). Thus, we review the evidence and the inferences therefrom in the light most favorable to the losing party in the trial court and disregard all evidence and inferences adverse to him. Our review will be under the usual standards in order to determine the factual sufficiency and legal sufficiency of the evidence. Meadows v. Green, 524 S.W.2d 509, 510 (Tex.1975).

Having reviewed the evidence under these standards, we affirm the judgment of the trial court for the reasons now to be stated.

At the outset, we note that actions for malicious prosecutions have never been favored in the law. Chief Justice Williams in Parker v. Dallas Hunting and Fishing Club, 463 S.W.2d 496, 499 (Tex.Civ.App. — Dallas 1971, no writ), quoted from an early case and cited several more recent cases supporting this statement of the law. See also Green v. Meadows, 517 S.W.2d 799, 802 (Tex.Civ.App. — Houston [1st Dist.] 1974), reversed on other grounds, 524 S.W.2d 509 (Tex.1975). We follow the rationale of the rule so enunciated in Parker.

We find no evidence of malice in the record; instead, as the assistant district attorney who prosecuted the case against the remaining defendants testified: “I didn’t find Mr. Cross to be overly cooperative.” Admittedly, Cross was mistaken in his identification of plaintiff as being involved in the rioting; but, this does not establish malice. As stated in Yianitsas v. Mercantile National Bank at Dallas, 410 S.W.2d 848, 851 (Tex.Civ.App. — Dallas 1967, no writ):

“Moreover, the undisputed evidence in the record before us shows quite clearly that Mrs. Hilton [substitute Cross] was not actuated by malice or any other ‘sinister motive’ in doing what she did. She had no ill will toward appellant and had no reason to have. She did not even know him and, as far as she knew, had never seen him before.”

See also Deaton v. Montgomery Ward & Co., 159 S.W.2d 969, 972 (Tex.Civ.App.— Beaumont 1942, writ ref’d w. o. m.); Montgomery Ward & Co. v. Kirkland, 225 S.W.2d 906, 910 (Tex.Civ.App.- — San Antonio 1949, writ ref’d n. r. e.). See also Annotation, “Malicious Prosecution — Mistaken Identity”, 66 A.L.R.Sd 10 (1975), and Annotation, “Malicious Prosecution — Identity”, 43 A.L. R.2d 1048 (1955).

In Flowers v. Central Power & Light Co., 314 S.W.2d 373, 375 (Tex.Civ.App. — Waco 1958, writ ref’d n. r. e.), the Court wrote:

“The elements necessary for a malicious prosecution action are: 1) the commencement of a criminal prosecution against plaintiff, 2) which has been caused by the defendant or through defendant’s aid or cooperation, 3) which terminated in favor of the plaintiff; 4) that plaintiff was innocent; 5) that there was no probable cause for such proceeding; 6) that it was done with malice, 7) and resulted in damages to the plaintiff.” (emphasis omitted)

See also K-Mart No. 4195 v. Judge, 515 S.W.2d 148, 151 (Tex.Civ.App. — Beaumont 1974, writ dism’d), and authorities therein cited.

There being no evidence of at least one of the essential elements necessary to support a recovery (No. 6 in Flowers, supra), the trial court properly instructed the jury to return a verdict for defendant and that judgment is now AFFIRMED.

      . Plaintiff sued A. A. Cross, individually, and joined Cross Construction Company, Inc., as a defendant. All of the acts charged were done by Mr. Cross and he testified that he was president of the corporation. Our reference to defendant will, therefore, include both defendants although only a singular reference will be made.

      . “The Court erred in sustaining Appellees’ Motion for an instructed verdict, the evidence adduced by Appellant having raised issues which would support a jury finding that Appel-lee A. A. Cross was guilty of malicious prosecution.”


author: CLAYTON, Justice. KEITH, Justice,

text:
    HARPER BUILDING SYSTEMS, INC., Appellant, v. The UPJOHN COMPANY, Appellee.
    No. 8051.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 16, 1978.
    Rehearing Denied March 16, 1978.

      G. P. Hardy, III, Houston, for appellant.
    Richard L. Josephson, Houston, for appel-lee.
   CLAYTON, Justice.

This is an action brought by Harper Building Systems, Inc., against the Upjohn Company for damages resulting from breach of warranty. A separate suit was filed against appellee, Upjohn Company, by Porta-Courts, Inc., and the two suits were consolidated. Trial was to a jury on special issues. The parties to this appeal will be referred to as Harper and Upjohn.

The jury answered all liability issues in favor of Harper and awarded damages to Harper in the sum of $1,600 in actual damages and in the sum of $250,000 for lost profits. Damages in favor of Porta-Courts, Inc., were awarded in the judgment in the sum of $27,500 from which no appeal has been taken. Upjohn filed a motion for judgment non obstante veredicto, or, alternatively, to disregard the jury’s answer to all issues.

The trial court granted Upjohn’s motion as to Harper only in so far as it applied to the issue awarding Harper damages in the sum of $250,000 for lost profits and denied it in all other respects, and rendered judgment for Harper for $1,600. Harper filed notice of limited appeal and prosecuted this appeal from that part of the judgment which denied a recovery of lost profits.

With all other questions eliminated as to liability on breach of warranty, etc., the only question before this court is whether or not the trial court properly disregarded and set aside the jury finding of $250,000 in lost profits, and entered judgment denying such award of damages to Harper.

Upjohn argues that there is no evidence of probative force to support the jury’s findings as to damages for lost profits. A contention on appeal that an answer to a special issue should not have been disregarded presents a “no evidence” point. Harbin v. Seale, 461 S.W.2d 591 (Tex.1970); Frost Nat. Bank v. Nicholas and Barrera, 534 S.W.2d 927, 932 (Tex.Civ.App. — Tyler 1976, writ ref’d n. r. e.). In deciding a “no evidence” question, “the appellate court must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary.” Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); accord, Lucas v. Hartford Accident & Indemnity Co., 552 S.W.2d 796, 797 (Tex.1977); Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126, 127 (1959).

Upjohn’s entire argument as to damages for lost profits goes to the insufficiency of the evidence. We cannot consider this standard of review. We are compelled to consider the evidence in the light of a “no evidence” question.

Considering the evidence in the light most favorable to the jury finding and in accordance with the standard of review cited above, we find the evidence to show that Lee Harper in 1968 incorporated Harper Building Systems for the purpose of developing and promoting the use of a foam substance between two hard surfaces as providing a better building material than was then available. From that time until 1971, the corporation was “not really in business” and had “no intent of profit.”

In the latter part of 1970, an Upjohn representative, who had been encouraging Harper to get into business, advised Harper that Upjohn was coming out with the best material for panels “that we could possibly get” which would require new machinery. Thereupon, Harper borrowed $125,000 to get in position to manufacture panels, and purchased expensive machinery and equipment and leased a building. Harper was ready for commercial production in May 1972 and purchased a large quantity of materials from Upjohn with which to produce the urethane filled panels. However, productions could not begin until contracts for sale of the panels had been obtained.

The first contract for use of the panels was with Vacca to build a portable office building which showed a profit for Harper of $1,500, and this led to a contract, dated December 1972 with Vacca, operating as Astro Portable Building Company, granting an exclusive agency to sell the panels, with a “guarantee” by Astro of a minimum of $150,000 in volume sales from February 1973 to January 1, 1974.

In December 1972 Harper contracted with Porta-Courts, Inc., for 250 tennis courts requiring use of 225 panels each at $5,400 per court. Panels for three courts were constructed and delivered between January and March 1973. At this time, it was determined that the foam was defective causing the panels to shrink, and, because of this problem, the defect in the materials which gave rise to this breach of warranty litigation, Harper could no longer manufacture and sell the panels. There was evidence showing that the cost of producing one panel was $8.01, making 225 panels cost $1,802.25, leaving a profit of $1,282 per court, or $320,500 for the contracted 250 courts.

Because of the failure of the Upjohn foam, Harper was unable to furnish the panels under the Vacca contract. Vacca, unable to obtain Harper’s panels, started building conventional Astro Portable buildings, with sales in 1973 of $69,900 for some three and a half months, $150,000 in 1974, and $251,000 in 1975. Vacca testified he could have done as well with Harper panel materials — “I know I could have done it.”

In addition to the above contracts, Harper had made a proposal to Kelly Reynolds, which was accepted, to furnish materials for construction of twenty-seven townhouses for $281,855.50, including Harper panels at $77,666.52, but at the time Reynolds could not get acceptable interim financing. Subsequently, Reynolds obtained the financing, but Harper could not furnish the panels when Reynolds was ready, because of the defect in Upjohn’s foam.

The evidence referred to above clearly presents some evidence of probative force to support the jury’s finding of lost profits, and the issue awarding damages therefor should not have been disregarded and set aside.

Upjohn argues further that damages cannot be awarded for the reason that Harper’s business was new and unestablished and for such reason could not recover for lost profits. In Atomic Fuel Extraction Corporation v. Slick’s Estate, 386 S.W.2d 180, 188-89 (Tex.Civ.App.—-San Antonio 1964, writ ref’d n. r. e. per curiam, 403 S.W.2d 784 (Tex.1965), the court states:

“In Southwest Battery Corporation v. Owen, supra, because there was an established business, future profits were allowed. In those Texas cases which have permitted recovery, there was some data and history of profits from an established business [citing cases]. ... In sharp contrast with those precedents are those which have consistently denied future profits when the business was new and unestablished [citing cases].”

Our Supreme Court in Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1099 (1938) states the rule as follows:

“The rule denying a recovery where the facts show that such profits claimed are too uncertain or speculative, or where the enterprise is new or unestablished, is still enforced, on the ground that the profits which might have been made from such business are not susceptible of being established by proof to that degree of certainty which the law demands. 13 Tex. Jur. p. 207, Sec. 108; p. 216, Sec. 115; 17 C.J. pp. 790, 791, and cases cited in notes.”

It is also stated in Pace Corporation v. Jackson, 155 Tex. 179, 190, 284 S.W.2d 340, 348 (1955) that

“Recovery of damages in the nature of lost profits is allowed where a business is established on the strength of a contract but is discontinued because of its breach. Big Four Ice & Cold Storage Co. v. Williams, Tex.Civ.App., 9 S.W.2d 177, writ refused; Graham Hotel Co. v. Garrett, Tex.Civ.App., 33 S.W.2d 522, writ dismissed, 64 Harv. Law Rev. 317.”

In the cases denying recovery where the business is new or unestablished, the reasons for such denial are that before the establishment of the business profits could not have been made and could not be used in reasonably anticipating profits to be made in the future, and therefore any proof of future profits would be entirely too speculative and conjectural as to allow a recovery for such profits.

Upjohn relies strongly upon Atomic Fuel Extraction Corporation v. Slick’s Estate, supra, as authority for denying recovery because Harper was a new and unestablished business. This case is distinguishable from our case under review in that the facts in Atomic do not show that there was any type of business actually in existence before the breach, and, we think importantly, there were no contracts of any kind upon which the proposed business establishment could rely. However, in our case, Harper had been in the business of manufacturing the panels, and had made a profit of approximately $5,000 therefrom prior to the breach of warranty.

In addition to these facts, Harper had contracts to supply the panels manufactured by using Upjohn’s materials. The contracts were for a definite number of panels and for a definite price. The profits expected to be derived therefrom could be determined with such reasonable degree of certainty that it could not reasonably be said that the profits were entirely too speculative and conjectural as to allow recovery therefor. Under the facts of this case we hold that Harper could and should be allowed to recover his lost profits. This holding is based upon the evidence as we review it under the standards of review we are compelled to follow in a “no evidence” question, as to the proof of lost profits.

Upjohn argues that the trial court properly granted the motion for judgment notwithstanding the verdict because its agreement with Upjohn specifically limited damages to the purchase price of the materials and rejected any recovery of consequential damages. We do not agree/ The evidence shows that the contract for the sale of the materials used in producing the foam used by Harper came into existence by virtue of an offer and acceptance between the parties.

The agreement between Harper and Upjohn for the sale of the materials was made in a blanket order for 100,000 pounds of the material. The entire offer and acceptance for the sale to Harper were included in this blanket order: the transaction was “closed” when this blanket order was issued and filled by Upjohn. A specification sheet containing instructions as to the method of preparation of the materials was not a part of or necessary to the completion of this agreement. This specification sheet contained, at the bottom of the sheet this clause, in very small print: “. . . Buyer’s exclusive remedy as to any breach of warranty or negligence claim shall be limited to the purchase price of the materials.”

The only purpose for the specification sheet was to instruct Harper regarding “technical information” needed to use the materials. Upjohn argues that Tex.Bus. & Comm. Code Ann. § 2.207 (1968) provides that additional terms of a contract which are included within an “expression of acceptance” are to be construed as proposals for addition to the contract. We do not consider this specification sheet as being an “expression of acceptance” because there is no evidence in the record as to when the specification sheet was received by Harper. In the absence of such evidence it cannot be said that such instrument became a part of the contract.

The trial court being in error in disregarding the jury finding as to damages for lost profits, the judgment of the trial court is reversed as to that part of its judgment, and we now render the judgment which should have been rendered by the trial court: that appellant recover from appellee the sum of $250,000 for lost profits.

REVERSED and RENDERED.

KEITH, Justice,

dissenting.

I respectfully dissent. The late Judge Warren Cunningham, then one of the most able trial judges of this State, presided at the trial of this cause; he passed upon Upjohn’s motion for judgment non obstante veredicto after he had reviewed a transcribed copy of the evidence adduced upon the trial. He concluded, and I concur, that the evidence of loss of future profits is so weak “as to do no more than create a mere surmise or suspicion of its existence, [and] such evidence is in legal effect no evidence, and it will not support a verdict or judgment.” Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex.1970).

There is, perhaps, to use the language of Chief Justice Calvert in Seideneck, supra, “a glimmer of evidence” to support plaintiff’s lost profit theory; but it is legally insufficient under the famous decision of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063 (1898). In considering the appeal of plaintiff, we are confronted with a “no evidence” point. The review is under the standards set out in Gulf, Colorado & Santa Fe Railway Company v. Been, 158 Tex. 466, 312 S.W.2d 933, 937 (1958), which requires that there be more than a mere scintilla of evidence to support a verdict.

The rule governing plaintiff’s right to recover is set out in Universal Commodities, Inc. v. Weed, 449 S.W.2d 106, 113 (Tex.Civ. App. — Dallas 1969, writ ref’d n.r.e.), where the leading authorities are discussed:

“The court properly denied appellants any recovery for the loss of future profits. Universal and its three corporate stockholders and officers were attempting to start a new business. The general rule is that the loss of anticipated profits from a new business is too speculative and conjectural to support a recovery of damages. Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938); Barbier v. Barry, 345 S.W.2d 557, 563 (Tex.Civ.App., Dallas 1961, no writ). It is true that lost profits will not be denied merely because a business is new if factual data is available to furnish a sound basis for computation of probable losses. Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340, 348 (1955), which involved a new business actually established and operated for a while. But in the case now before us the undisputed evidence shows that there was no basis for the recovery of damages for loss of anticipated profits.”

See also Davis v. Small Business Inv. Co. of Houston, 535 S.W.2d 740, 743 (Tex.Civ.App. —Texarkana 1976, writ ref’d n.r.e.); General Supply & Equipment Co., Inc. v. Phillips, 490 S.W.2d 913, 921 (Tex.Civ.App. — Tyler 1972, writ ref’d n.r.e.).

Plaintiff purchased $1,600 in material from Upjohn and used it in manufacturing a sufficient number of panels to construct three portable buildings which he sold to a stockholder who, too, was entering into a new business. Although the stockholder, Vacca, “guaranteed” that his company would purchase $150,000 in panels from plaintiff each year, Vacca’s company had gross sales in that year of less than $70,000. One building company, headed by Kelly Reynolds was unable to procure financing and no sales were ever made. The record is most unsatisfactory with regard to the profit, if any, which Harper made on the sale of the portable buildings to Vacca and the tennis court panels to Porta-Courts. We have estimates, but no books or records, from Harper showing a profit from $1,500 to $5,000. Harper’s expert witness calculated a gross profit from such sales in the neighborhood of $5,000.

This is the classic case of a new business entering an untested field with a new product and founders upon a combination of bad luck, under capitalization, and lack of technical know-how. In this instance, its failure may have been aided by the defects in Upjohn’s product; but the stubborn fact remains that there is no competent evidence, under the standards laid down in the line of cases discussed in Universal Commodities, Inc. v. Weed, supra, § 449 S.W.2d at 113, to support the award of lost future profits. Such profits were too speculative, legally, to entitle Harper to a judgment.

There is yet another reason for an af-firmance of the trial court’s judgment — the limitation of damages contained in the technical information sheet provided to plaintiff at the time of the sale.

Lee Harper testified that the information sheet was used to supply technical data on how to use the material. He testified: “This is technical information on the 426 system,” and agreed, when questioned, that it “contains the information that you followed when you made your foam . . ?” It is fair to say that Harper could not have used the foam without having the information sheet, or similar information available to him.

The limitation of damages was clearly and conspicuously shown on the technical information sheet and read in part as follows:

“Accordingly, Buyer assumes all risks whatsoever as to the use of these materials and Buyer’s exclusive remedy as to any breach of warranty or negligence claim shall be limited to the purchase price of the materials.”

Since Harper could not have used the material which he purchased without using the technical information sheet accompanying the materials, his use of the sheet constituted an “expression of acceptance” as that term is used in the Texas Uniform Commercial Code [hereinafter Texas U.C. C.], Tex.Bus. & Comm.Code Ann. § 2.207(a) (1962)

The technical information sheet accompanied the goods and was brought to the attention of Harper contemporaneously with the consummation of the bargain. He had ample opportunity to object or indicate his nonacceptance of the limitation of liability but did not do so. Moreover, the requirements of § 2.719 of the Texas U.C.C were clearly applicable to this commercial transaction involving the purchase and sale of material where only consequential damages were sought. Before Harper began using the foam, he was on notice that he could not recover consequential damages because of product failure. See generally Nelson v. Union Equity Co-op. Exchange, 548 S.W.2d 352, 356 (Tex.1977).

In our case, Harper urges that the limitation upon the warranty is unconscionable; but the statute refutes that contention. I conclude, just as the El Paso Court did in Lankford v. Rogers Ford Sales, 478 S.W.2d 248, 251 (Tex.Civ.App. — El Paso 1972, writ ref’d n.r.e.), that the limited warranty precludes the recovery of consequential damages by Harper.

I decline to join in an opinion by which a quarter of a million dollars is awarded to a businessman who has not shown any right to be so enriched at the expense of another business. I would affirm the judgment of the trial court.

      . The jury found that Harper purchased materials from Upjohn costing $1,600 and no appeal has been taken from the judgment awarding that sum to Harper.

      . All references herein are to the Texas U.C.C., as codified in Vernon’s Texas Business & Commerce Code Annotated.

      . § 2.719(c): “Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages or injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”


author: MURRAY, Justice.

text:
    Thomas MAGRANE, Appellant, v. Ben T. BENNETT, Thomas J. Jordan and O. J. Van Horn, Appellees.
    No. 15943.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 22, 1978.
    Lloyd L. Oubre, San Antonio, for appellant.

      Reese L. Harrison, Jr., San Antonio, for appellees.
   MURRAY, Justice.

O. J. Van Horn filed suit on a series of notes executed by Thomas Magrane, individually, Christopher Goldsbury, individually, and Van Horn-Goldsbury-Magrane, Inc. Thomas Magrane thereafter filed a third party action against Ben T. Bennett and Thomas J. Jordan. The basis for this third party action was a contract entered into on the 30th day of November 1971, between Thomas Magrane, appellant, and Ben T. Bennett and Thomas J. Jordan, appellees. Appellees filed a cross action against appellant alleging a breach by appellant of that part of the agreement dealing with a non-compete provision. The contract in question was for the sale of an insurance business by appellant to appellees. Among other payments called for by the contract, the appellees were to pay appellant a sum at the end of one year according to a formula therein set out.

On trial without a jury, the trial court awarded judgment to O. J. Van Horn on the notes and denied all relief to appellant and appellees. That part of the judgment awarding judgment to 0. J. Van Horn on the notes is not the subject of this appeal. Both the appellant and appellees have perfected an appeal to this Court.

No findings of fact or conclusions of law were requested or found by the trial court. All of appellant’s points of error are based on the contention that the implied findings and conclusions of the court are without support of the evidence. Likewise, all of appellees’ and cross appellant’s points of error are based on the conclusion that the implied findings and conclusions of the court are without support of the evidence.

We cannot sustain any of these points. Only a partial statement of facts was brought upon appeal. Both appellant and appellees have admitted in oral argument and in their briefs that only a partial transcript of the evidence is before this Court.

In the absence of a complete statement of facts there is no way for us to examine the whole record to determine whether there is any evidence to support the court’s findings and conclusions. Appellant and appellees did not stipulate that the partial statement of facts constituted an agreed statement pursuant to Tex.R.Civ.P. 375, 377, and 378. With only a partial statement of facts before us we must presume that there was evidence to support the court’s finding. The Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex.1968).

The judgment of the trial court is affirmed.