author: YOUNG, Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Rufus GRAVES, Jr., Appellee.
    No. 1289.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 19, 1978.
    Rehearing Denied Nov. 9, 1978.

      Dudley B. Foy, Jr., Corpus Christi, for appellant.
    David L. Perry, Edwards & Perry, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

In this workmen’s compensation case, Rufus Graves, Jr., brought this action against Liberty Mutual Insurance Company for incapacity caused by two separate back injuries. Trial was to a jury which found that each injury was a producing cause of total and permanent incapacity which began on January 4, 1975. The court entered judgment on the verdict allowing Graves to recover total and permanent incapacity benefits for each injury; i. e., two sets of total and permanent benefits beginning on the same day. Liberty Mutual appeals. We affirm.

The facts indicate the following events. On July 16, 1973, appellee, Graves, sustained a back injury while working for Reynolds Metals Company in San Patricio County. Nevertheless, he continued on his job without interruption until January 3, 1975. On that date, he again injured his back and incapacity followed. As a result, on January 28,1975, Dr. DeNaples, a neurosurgeon, after consulting with Dr. Henry, an orthopedic surgeon, removed two discs (L5-S1 and L4-L5) from Graves’ back. Ap-pellee has not worked since that time.

Appellant brings six points of error. In its point 1, the appellant contends that the trial court erred in rendering judgment for two total and permanent incapacities when both incapacities commenced at a single time certain. In short, appellant contends that appellee should be allowed total and permanent recovery for the 1975 injury and no recovery for the 1973 injury.

The argument under this point centers around Tex.Laws 1917, ch. 103, § 12c, at 278, hereinafter “§ 12c (1917)”, and the wording of its amendment in 1971. Originally § 12c (1917) provided:

“If an employe who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employe had there been no previous injury.” (Emphasis supplied)

In 1971, the substance of § 12c (1917) was amended by Tex.Laws 1971, ch. 316, § 1, at 1257, hereinafter “§ 12c (1971)”, to read as follows:

“If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable for all compensation provided by this Act, . . . ” (Emphasis supplied.)

In 1977, § 12c (1971) was amended. This amendment readopted the § 12c (1917) language with a few minor changes. See Tex. Rev.Civ.Stat.Ann. art. 8306 § 12c (Supp. 1978). Because the injuries herein occurred in 1973 and 1975, § 12c (1971) controls.

Under its point 1, appellant initially contends that § 12c (1971) does not apply to the facts herein. In order to properly decide this question, we must briefly review the decisions interpreting § 12c (1917). Texas Employers’ Ins. Ass’n v. Haunschild, 527 S.W.2d 270 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.), sets out clearly the history and judicial interpretations of § 12c (1917). See also Sartwelle, Workers’ Compensation, 32 Sw.L.J. 291, 305-334 (1978). Because many of the words in § 12c (1917) were used in § 12c (1971), we must presume the words carry the same interpretation the courts theretofore gave to them. Texas Employers’ Ins. Ass’n v. Haunschild, supra at 275. Accordingly, when dealing with back injuries, i. e., general injuries, the judicial interpretations of the statute require that they be “compensable” injuries in order for the provisions of § 12c (1971) to apply. See St. Paul Fire & Marine Insurance Co. v. Murphree, 357 S.W.2d 744 (Tex.Sup.1962).

Appellant argues that § 12c (1971) does not apply because the requirement that there be at least a seven-day incapacity (Tex.Rev.Civ.Stat.Ann. art. 8306 § 6 (1967)) before a general injury is considered “com-pensable” was not fulfilled in the present case until after the subsequent injury on January 3, 1975 and thus, there was no prior compensable general injury. See Charter Oak Fire Ins. Co. v. Dewett, 460 S.W.2d 468 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n. r. e.). In other words, appellant contends that the showing of compensability must be made before the subsequent injury occurs. We do not find this intent in the meaning given to § 12c (1917) or § 12c (1971). The actual language of the Act refers only to a “prior injury.” The decision to add “compensable” to modify “prior injury” was explained by the Supreme Court in St. Paul Fire & Marine Insurance Co. v. Murphree, supra, as follows:

“[There must be a] prior general injury . for which compensation is provided under the terms of the statute

No mention was made that the prior general injury had to be determined to be “com-pensable” prior to the subsequent injury. See also Texas Employers’ Ins. Ass’n v. Haunschild, supra at 275. Moreover, too often, injuries to areas such as the back lie dormant and are not discovered until a later precipitating event. To hold in accord with appellant’s argument would exclude all such cases from the application of this provision.

Since the provisions of § 12c (1917) were additionally construed to reduce recoveries for incapacities enhanced by subsequent compensable general injuries, we think that § 12c (1971) also applies to inca-pacities enhanced by subsequent compensa-ble general injuries. See Texas Employers’ Ins. Ass’n v. Haunschild, supra at 275; St. Paul Fire & Marine Insurance Co. v. Murphree, supra; Jones v. Pacific Employers Insurance Company, 416 S.W.2d 580 (Tex.Civ.App.—Eastland 1967, writ ref’d n. r. e.). This determination, of course, is contrary to appellant’s assertion that because § 12c (1971) deals with the benefits payable for an incapacity to which a prior compensable general injury has contributed, § 12c (1971), therefore, does not deal with the question of the benefits payable for the incapacity caused by the prior injury. Even .so, we hold that the provisions of § 12c (1971) apply to the instant case.

As explained above, § 12c (1971) has been variously interpreted throughout its history. Its initial purpose was to encourage the hiring of handicapped workers. Gilmore v. Lumbermen’s Reciprocal Ass’n, 292 S.W. 204 (Tex.Comm’n App.1927, judgmt. adopted). Later decisions, however, declared that the purpose of § 12c (1917) was to prevent double recovery. Traders & General Ins. Co. v. Wyrick, 118 S.W.2d 923 (Tex.Civ.App.—San Antonio 1938, no writ); Jones v. Pacific Employers Insurance Company, supra. In keeping with this purpose to prevent double recovery, the court in St. Paul Fire & Marine Insurance Co. v. Mur-phree, supra, issued a decision which effectively killed the legislative efforts to encourage the employment of disabled workers with prior non-compensable general injuries. This decision exposed employers to liability for handicapped persons’ prior non-compensable general injuries. This, of course, made it more difficult for them to obtain employment. Moreover, Murphree not only required that prior general injuries be compensable in order to reduce a subsequent recovery, but it also recognized that all injuries would not necessarily be litigated in successive order as had been envisioned by the original § 12c (1917). Mur-phree accordingly expanded the scope of § 12c (1917) to allow reductions in recovery for subsequent general compensable injuries.

In 1971, without explanation, the Legislature modified the language of § 12c (1917) as was shown earlier. It can only be speculated that the change was made to benefit workers whose recoveries would, under § 12c (1917), have been reduced by prior general compensable injuries from which they had actually received no compensation. See 8 Hous.L.Rev. 610, 615 (1971). Be that as it may, the plain purport of the new language was to change the application of § 12c (1917). Where the prior section purported to prevent unjust enrichment, the new section seemed to allow unjust enrichment. Texas Employers’ Ins. Ass’n v. Haunschild, supra at 276. As one writer put it, the 1971 amendment could be labeled “the workers early retirement program.” Sartwelle, Workers’ Compensation, supra, at 305. Even though we consider literal application of the provisions of § 12c (1971) somewhat unreasonable, we must still apply its plain terms. As stated in Texas Employers’ Ins. Ass’n v. Haunschild, supra at 276:

“[A]ny consideration of the consequences of the new Sec. 12c [1971] does not justify a departure from the meaning of the words the Legislature used to express its intent . . even if it should appear that the statute is impracticable . or that it may operate somewhat unequally on contending litigants.” (citations omitted).

The rule of § 12c (1971) is that in a general injury case a carrier is not entitled to a reduction for the percentage of incapacity contributed by another compen-sable general injury. Texas Employers’ Ins. Ass’n v. Haunschild, supra, at 276. This rule, as applied to the case at bar, prevents the court from reducing the recovery for the July 16, 1973 injury by the percentage of incapacity caused by the January 3, 1975 injury. To look at it another way, the effect of this change as it applies to the present case is clearly illustrated by taking the instant facts and making one minor change; i. e., assume that the plaintiff-appellee brought a separate suit for each injury instead of one suit for both injuries. Given the jury’s answers in the present case, the appellee would be entitled to an award of total and permanent incapacity in each separate suit. Viewed from the standpoint of the January 3, 1975, injury, no issues concerning the July 16, 1973, injury would be allowable to decrease the recovery in the suit on the 1975 injury, notwithstanding that the effects of both injuries may have combined to create one incapacity. The result would also be the same in a suit brought on the July 16,1973, injury. No issues as to the contribution of the 1975 injury would be allowable, and full recovery for the same incapacity would be permitted.

Finally the double recovery allowed in our case can be analogized to the double recovery allowed in Travelers Insurance Company v. Olivares, 467 S.W.2d 528 (Tex.Civ.App.—San Antonio 1971, writ ref’d n. r. e.). In Olivares, there was a prior and subsequent general injury, as in the case before us. The claimant sued on each injury, but prior to trial he settled the suit on the second injury. The suit for the first injury went to trial and the claimant recovered for total and permanent incapacity for the same period of time that was covered by his earlier settlement of the second injury. In other words, the claimant was receiving double recovery for one incapacity. On appeal, the carrier complained about the double recovery and the court responded that the double recovery would be allowed because the carrier had failed to plead and request issues concerning the application of § 12c (1917) to the second injury in order to reduce the recovery for the prior injury. The double recovery that occurred in Oli-vares as a result of the insurance carrier’s neglect is legislatively allowed under § 12c (1971). No issue as to subsequent contribution may be submitted.

In sum, to prevent double recovery in the present case would be to penalize the plaintiff for seeking judicial economy by bringing both actions in the same suit.

Appellant relies particularly on the case of Aetna Casualty and Surety Company v. Shreve, 551 S.W.2d 79 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ) for the proposition that in the event a general injury aggravates a prior condition, therein disease, that the workman is entitled to recover compensation only for the injury which produces the longest period of incapacity. Shreve, however, relied upon Tex.Rev.Civ. Stat.Ann. art. 8306 § 12 (3rd paragraph from the end), which deals only with concurrent injuries. See United States Fidelity & Guaranty Co. v. London, 379 S.W.2d 299, 302 (Tex.Sup.1964). In our case, we have non-concurrent injuries and thus Article 8306 § 12 does not apply. Appellant’s point 1 is overruled.

Appellant’s points 2 and 3 contend there is no evidence and insufficient evidence to support the jury’s findings on the following special issues: (17) that the July 16, 1973, injury was a producing cause of any total incapacity of appellee; (18) that such total incapacity began on July 4, 1975; and (19) that such incapacity will be permanent. We disagree. Because the text of appellant’s argument is directed totally at the jury’s answer to special issue (17), we will restrict our discussion to that contention.

In determining whether there is “no evidence” to support the jury’s finding we must consider only that testimony which supports the jury’s findings and disregard all testimony to the contrary. Guardianship of Henson, 551 S.W.2d 136 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). In determining whether there is sufficient evidence to support the verdict we must look to the entire record. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Ryan v. Morgan Spear Associates, Inc., 546 S.W.2d 678 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.).

The court’s charge defined producing cause as “an efficient, exciting or contributing cause which in a natural and continuous sequence produces incapacity. There may be more than one producing cause of an incapacity.”

A fair summary of the facts, circumstances and opinions concerning issue (17) follows. Appellee testified that he held several jobs involving heavy manual labor prior to working for Reynolds. He recounted only one minor back injury during these prior jobs and no incapacity or extended pain caused by the single injury. When appellee was hired by Reynolds in 1972, he was subjected to a thorough physical examination, including x-rays, which revealed no abnormalities to his back or legs.

On July 16, 1973, appellee testified that he was working the day shift. He explained that he was extending himself over a large vat of molten aluminum attempting to scrape a wastebasket-sized obstruction off one of the heating elements by using a long solid steel “rake” when he felt a severe pain in his back. He allegedly told his line foreman, Mr. Villarreal, that he had injured himself and then he proceeded to the company’s first aid station. But Villarreal’s time card showed that he (Villarreal) was on vacation at this time. At first aid, ap-pellee met briefly with nurse Evans whom he told that he had pulled a muscle in his back. Mrs. Evans testified that on the general report sheet she recorded his injury as “sciatica”, i. e., pain radiating down the sciatic nerve in the leg, because he came in complaining of pain in the back of his right leg. She further recorded his injury as non-occupational although she later admitted that she wasn’t sure whether it was an occupational injury or not. Moreover, she stated that the appellee was in severe pain and that he was “really hurting” when she saw him. Nurse Evans also talked about a “little report card” which was filled out for the appellee at this time and that such report cards were only used in cases involving occupational injuries. After nurse Evans talked with appellee, he met with Dr. Bratt, the company doctor who, after examining appellee, concluded that he had a herniated disc at the L5-S1 level on the left side. It should be noted here that Dr. De-Naples’ later surgery report explained that surgery was performed on the L5-S1 level disc on the right side, but that all of the disc was removed. Dr. Bratt recommended rest and sent the appellee back to work that same day. The doctor’s report did not mention any injury, but stated that the appellee had been complaining of leg pains for several days.

Appellee testified that he sustained no further injuries, pain or problems with his back or legs until his second injury on January 3,1975. In fact, he related that he had only missed three days work in all the time he worked at Reynolds.

Dr. Sharp, a general practitioner and surgeon, testified that he first examined the appellee on January 26,1976. Appellee explained his back injury on July 16,1973, and his subsequent pain and injury-free history to the doctor. On this basis and on his conclusions reached from his physical examination and prior experiences, Dr. Sharp stated that because most disc injuries are a result of multiple traumas, appellee’s injury on July 16, 1973, did “precipitate and [was] involved in what eventually turned out to be the present [incapacity].” Dr. Sharp further indicated that the back sprain received in July 1973 would naturally affect the disc.

Dr. DeNaples, the surgeon who operated on appellee, testified that radiating pain, i. e., pain which extends from the back down into the legs, involves nerve root irritation which is often caused by a ruptured or damaged disc. He further testified that in his opinion, most of the pain the appellee was experiencing prior to surgery was due to a ruptured disc at the L5-S1 level. Finally, it should be noted that the appellant does not question the jury’s finding that appellee was indeed injured while in the scope of his employment on July 16, 1973.

We hold that Dr. Sharp’s opinions along with the above evidence clearly shows some evidence that the July 16,1973, injury was a producing cause of the incapacity experience beginning January 4, 1975. See Lucas v. Hartford Acc. & Indem. Co., 552 S.W.2d 796 (Tex.Sup.1977); Western Casualty and Surety Company v. Gonzales, 518 S.W.2d 524 (Tex.Sup.1975). While the evidence is somewhat conflicting, we cannot say that the jury’s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Appellant’s points 2 and 3 are overruled. Appellant’s point 4 complains that the trial court erred in refusing appellant a new trial because the court erroneously sustained objection to his jury argument. A portion of counsel’s argument appears as follows:

“Mr. Foy: . . . The question is whether he had an on-the-job injury that produced damage or harm to the physical structure of his body.
John Prezas, the bailiff, comes to work with a toothache. The longer he’s here, the worse his tooth hurts. He hadn’t had an on-the-job injury.
Miss Morrison comes to work with a headache. The longer she sits here and listens to us lawyers, the worse her head hurts.
Mr. Edwards: Your Honor, we object to that as being incorrect because if there’s anything that aggravates or accelerates or precipitates further problems of a condition which is related to her job, it’s an injury under this Court’s charge.
Mr. Foy: Only if it produces damage or harm to the physical structure of his body, and it doesn’t.
Judge Blackmon comes to the Court with a back ache, and it hurts. And the longer he sits there, the worse it hurts. But he hadn’t had an on-the-job injury.
Mr. Edwards: Now, Your Honor, we object to that because it’s going outside the Court’s charge. We object to it strenuously. It’s a misstatement of the law and there’s no evidence to support it and it’s just a flatout misstatement of the law.
Mr. Foy: Absolutely proper argument by example, Your Honor.
Mr. Edwards: There’s no—
Court: The objection is sustained. The jury will disregard that argument.”

The court’s charge defined injury as follows:

“By the term “injury” is meant damage or harm to the physical structure of the body, and such diseases or infection as naturally result therefrom, or the incitement, acceleration or aggravation of any disease, infirmity or condition, previously or subsequently existing, by reason of such damage or harm to the physical structure of the body, or a combination thereof.”

See 2 Texas Pattern Jury Charges § 20.01 (1970).

Appellant’s jury argument exemplified error by omission. He failed to explain that if any occurrences during work aggravate the hypothetical toothache, headache or backache such that it causes physical damage or harm to the body that this is an injury. See Gill v. Transamerica Insurance Company, 417 S.W.2d 720 (Tex.Civ.App.—Dallas 1967, no writ). We agree with the court’s decision to exclude Mr. Foy’s jury argument. Appellant’s point 4 is overruled.

Appellant’s points 5 and 6 assert that the trial court erred in permitting Dr. Sharp to testify that the appellee told him during his initial consultation that Dr. DeNaples and Dr. Henry thought the appellee might need future surgery and that he should avoid heavy lifting.

Appellant complains that Dr. Sharp was permitted to testify to the following information given him by the appellee:

“. . . All of his doctors have advised him to do no heavy lifting. Dr. DeNaples told him he might need another myelo-gram and another disc removed.
He last saw Dr. Henry August 25, 1975 and he also told him another back surgery may have to be done and that he should avoid heavy lifting.”

We need not consider the merits of this contention in that any possible error was rendered harmless by the introduction of testimony to the same effect at other times during the trial. Rule 434, T.R.C.P.

On page 133 of the statement of facts Dr. Sharp testified that there was a good probability of further surgery and that the ap-pellee should avoid heavy lifting. Further on page 260 of the statement of facts Dr. DeNaples admitted that he had consulted with Dr. Henry concerning future surgery for the appellee. Appellant’s points 5 and 6 are overruled. See Employers Mut. Liability Ins. Co. of Wis. v. Sanderfer, 382 S.W.2d 144 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Vernis FULMER, Appellant, v. Sam THOMPSON, Appellee.
    No. 1183.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 19, 1978.
    Rehearing Denied Nov. 16, 1978.

      Marion G. Holt, Holt & Tatum, Nacogdo-ches, for appellant.
    C. A. Keeling, Badders & Keeling, Nacog-doches, for appellee.
   McKAY, Justice.

This is a personal injury suit arising from an alleged assault and battery upon appel-lee, Sam Thompson, by appellant Vernis Fulmer. Trial was before a jury; and, based upon the jury verdict, the trial court rendered judgment for appellee for $151,-500.

It was alleged in appellee’s pleading that appellant committed an assault and battery upon appellee with intent to maim, murder or seriously injure appellee by striking ap-pellee across his face with a 22-caliber rifle, then shooting appellee in the left leg with the rifle resulting in serious and permanent injuries. Appellee also sued for loss of earning capacity, mental pain and anguish and for exemplary damages. Appellant answered by general denial and that appellee was a trespasser upon premises owned by appellant in that appellee was parking his motor vehicle on a parking lot at appellant’s apartment building so as to block the city garbage truck from removing the garbage from the premises. Appellant also alleged he acted in self-defense. The jury found that appellant committed an assault and battery upon appellee, and awarded damages of $50,000 for past and future physical and mental pain and suffering and loss of earnings in the past and which will be reasonably suffered in the future, and $1,500 for past medical and hospital expenses. The jury also awarded exemplary damages of $100,000.

The special issues submitted to the jury and the jury’s answers follow:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that the Defendant, VER-NIS FULMER, committed an Assault and Battery upon the Plaintiff, SAM THOMPSON?
“Answer: ‘We do’ or ‘We do not.’
“ANSWER: ‘We do.’
“SPECIAL ISSUE NO. 2
“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate SAM THOMPSON for his injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?
“You may consider the following elements of damage, if any, and none other:
“a. Physical pain and mental anguish in the past.
“b. Physical pain and mental anguish which, in reasonable probability, he will suffer in the future.
“c. Loss of earnings in the past.
“d. Loss of earning capacity which, in reasonable probability, he will sustain in the future.
“Answer in dollars and cents, if any.
“ANSWER: ‘$50.000’
“SPECIAL ISSUE NO. 3
“Find from a preponderance of the evidence the reasonable expenses, if any, for necessary medical and hospital care received by SAM THOMPSON in the past for treatment of his injuries resulting from the occurrence in question.
“Answer in dollars and cents, if any.
“ANSWER: ‘$1.500’
“SPECIAL ISSUE NO. 4
“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would be compensation for the reasonable expenses, if any, for necessary medical and hospital care which SAM THOMPSON will, in reasonable probability, require in the future for treatment of his injuries resulting from the occurrence in question?
“Answer in dollars and cents, if any.
“ANSWER: W
“If you have answered Issue No. 1 ‘We do,’ then answer Issue No. 5; otherwise do not answer Issue No. 5.
“SPECIAL ISSUE NO. 5
“What sum of money, if any, do you find from a preponderance of the evidence that SAM THOMPSON should be awarded again [sic] VERNIS FULMER as exemplary damages?
“ ‘Exemplary damages’ means an amount which you may in your discretion award as an example to others and as a penalty or by way of punishment, in addition to any amount which may have been found by you as actual damages.
“Answer in dollars and cents, if any.
“ANSWER: ‘$100.000’ ”

Appellant’s first five points essentially complain that there is no evidence to support the jury’s answers to issues 1, 2 and 5 because there is no evidence that the appellant was the aggressor and the undisputed evidence shows that appellee was the aggressor. We disagree with these contentions.

We shall examine the record to determine if there is no evidence of probative force to support the jury’s answers — considering only the evidence and inferences tending to support the findings and disregarding the evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

Appellant was the owner of the Villa Apartments in Nacogdoches, and the manager of the apartments was John Phillips. Complaints had been made to Phillips, who relayed them to appellant, that appellee had been parking his automobile adjacent to a garbage receptacle which prevented the city garbage truck from removing the garbage from the premises and thereby prevented the tenants at the apartments from depositing their garbage in the receptacle because it remained full. On the occasion of the confrontation between appellant and appellee, appellant went to the apartment house, and he and Phillips went to the apartment of Dottie Phillips, knocked on the door and appellee opened the door. Appellant and appellee then had a discussion about appellee’s van being parked by the garbage bin and about whether appellee was spending the night in Dottie’s apartment. Appellee testified that appellant while in front of the apartment grabbed his shirt and appellee pushed his hands away; that he followed appellant to his car because he then learned from Dottie that appellant had called his office and asked his employee a number of personal questions about him, and that he told appellant he did not want him to call his office asking any personal questions because it was not any of his business; that appellant asked him what he was going to do about it; that he turned to walk away and he heard appellant’s car door open, and he turned around and saw appellant getting out of his car with a rifle; that appellant then hit him on the side of the head with the gun and then shot him in the leg; that he was not at the side by the window and did not lean over in the window of appellant’s car and touch him; that when appellant came out of the car with the rifle he did not advance toward him; that after he was struck with the gun he did not “go after him [appellant] like you was wanting to get him,” and he was not able to do so.

Appellee further testified that appellant then shot him in his left leg and the bullet shattered a bone between the knee and the thigh and barely skimmed the skin on his right leg.

The witness John Phillips testified that after appellant got out of his car with the rifle appellee was backing up; that appellant then hit appellee with the rifle on the side of the head; that then there were two shots and appellee fell and “was laying on the ground screeming [sic].” Phillips further testified that after appellant struck appellee with the rifle he did not see appel-lee reach for appellant after that time, and that appellee did not advance toward appellant but was backing away.

Although some of John Phillips’ testimony was favorable to appellant we are of the opinion that there is ample evidence in the record to support the jury finding that appellant committed an assault and battery upon appellee. If these points may be construed as insufficient evidence points we hold the evidence is factually sufficient to support the jury’s answers to issues 1 and 5.

With respect to issue 2 appellee testified that he had severe pain in his left leg immediately after being shot, that the pain so continued while he was hospitalized in Nacogdoches and Lufkin; that he had surgery on his left leg at Lufkin and remained in the hospital about two weeks; that when released from the hospital appellee was able to walk only by the use of crutches, and that he used them for five or six months; that when he was released from the hospital the doctor told him to begin exercising his leg as soon as he could to strengthen it, but the leg was not as strong as it was before the injury; that the exercises were painful; that his leg aches and “just bothers me at times”; that since his leg was shot he had worked as a beautician which required him to stand on his feet, and his leg “bothers” him at night and he had a limp on that leg at times; that he was not able to drive his van motor vehicle (standard shift) until about the time he ceased using crutches; that during the months he could not drive the van, no one called on his customers, and that his local store barely made enough money to pay the rent and his clerical help; that at the time he was shot he was netting approximately $300 to $350 per week from his beauty supply business.

Appellee further testified that he could not walk as fast nor carry as much weight as he formerly could, and therefore could not call on as many customers as before; that his customers had begun to get beauty supplies from others during the period he was absent, and when he began calling on them again, he did not have enough business to make any profit which resulted in closing his business; that he then did odd jobs for a paint contractor but could not stand on a ladder to paint.

Appellee testified that he worked temporarily for three or four days at Port Arthur as a security guard during a strike at an oil company plant but no squatting, stooping, bending or lifting was required. Later, in June 1975, appellee moved to Jacksonville where he began working five days a week as a hairdresser and later bought the beauty shop where he worked, but he could not make any money there and standing all day caused his leg to hurt at night so he sold the shop. Appellee testified he was unemployed at the time of trial.

Appellee was a member of the Wrangler Club, a roping organization, and he participated in roping contests at rodeos and other places. He had placed at some jackpot roping contests, and he owned two horses one of which he rode as a roping horse. He testified he was unable to compete after he was shot as he previously had done, and he had never placed since his injury to his leg.

Mrs. Dottie Thompson, wife of appellee, who was his girl friend at the time he was shot, corroborated appellee’s testimony concerning his diminished physical ability to ride and rope after he was shot compared to his ability before he was hurt. She testified appellee complained of pain in his leg at night during the time he worked at the beauty shop in Jacksonville, and that he limped.

It is our view that there is some evidence to support the jury’s answer to issue 2; and if appellant’s points are considered to be insufficient evidence points, then we hold the evidence is factually sufficient to support the answer of the jury to this issue.

By his sixth point appellant again complains that there is no evidence to support the jury’s answer to issue 2 because there is no evidence that appellee “would suffer pain and mental anguish in the future or that he would have a loss of earning capacity in the future.” We overrule this point. The trial court properly instructed the jury that, “you may consider the following elements of damage, if any, and none other,” and then followed with the elements: physical pain and suffering in the past and in the future, loss of earnings in the past, and loss of earning capacity which in reasonable probability appellee would sustain in the future. The amount which an injured party may earn in the future is always uncertain and the finding of an amount must be largely left to the sound discretion of the jury, Texas Farm Products Co. v. Leva, 535 S.W.2d 953, 956 (Tex.Civ.App.—Tyler 1976, no writ), and if appellee’s earning capacity is impaired, “the extent of his loss can best be shown by comparing his actual earnings before and after his injury.” McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943). The record reveals that the trial in the instant case was held approximately four years after appellee’s injury, and there is evidence in the record of his pain, his earnings and his physical ability during that period.

It is contended in appellant’s point seven that the trial court committed error in refusing to permit appellant to examine the jury on voir dire on his defense of self-defense. On November 29,1977, appellant filed an amended pleading alleging for the first time a defense of self-defense. On December 5, 1977, appellee filed a special exception to appellant’s pleading alleging that it violated the rule (Rule 63, T.R.C.P.) against filing amended pleadings within seven days of trial without leave of the court, and on the same day the trial court sustained the special exception. However, during his voir dire examination of the jury, and before the trial court announced that he reaffirmed his ruling on appellant’s late pleading and sustained appellee’s objection to the voir dire of self-defense, appellant, in person, told the jury panel his defense was self-defense, and that he shot appellee only to save himself, and such statement was not withdrawn nor was the jury instructed not to consider it. Appellant testified that he acted only in self-defense. Before the court’s charge was prepared the record reflects that appellee’s counsel announced to the court that there was no objection to the court including an instruction and charge to the jury on appellant’s plea of self-defense. The court did charge the jury on self-defense, and there was no objection by appellant to such charge. Appellant’s counsel argued to the jury that appellant was justified in shooting appellee because he was acting in self-defense.

The record does not reveal any objection by appellant to the court’s action in sustaining an exception to appellant’s pleading filed within seven days of the trial. It is our view that the appellant having told the jury panel his defense was self-defense, the appellant having testified in detail to self-defense, the court having charged the jury on self-defense, and appellant’s counsel having argued to the jury on self-defense, then if there was any error in the court sustaining an objection to appellant’s further voir dire of self-defense such error was harmless. Rule 434, T.R.C.P. Appellant did not request an issue on self-defense. Appellant’s seventh point is overruled.

Appellant’s eighth point complains of the repeated attempts of appel-lee’s counsel to introduce a written statement of the witness John Phillips. The point complains of a number of occasions when such offer was made, and of two or more sidebar remarks of counsel. The point is too general and is multifarious. Although briefing rules are to be liberally construed (Rule 422, T.R.C.P.), the complaint concerns several separate rulings of the court not all of which were on the same legal question. Furthermore, the record indicates that the trial court sustained appellant’s objection each time it was made on each point. Appellant did not ask the jury be instructed not to consider the remarks of appellee’s counsel in offering the written statement of the witness, John Phillips, but the trial court did so instruct the jury on one occasion. If there was error it was harmless. The point is overruled.

By his ninth point appellant maintains that the trial court erred by admonishing and instructing appellant in the jury’s presence that he, personally, was not permitted to question any other witness after appellant had personally already questioned and cross-examined witnesses, and after he had personally testified as a fact witness in the case. There was no objection to the statement of the court, and appellant contends that for him or his counsel to object would only have magnified the error and prejudiced the jury. Appellant argues that for the court to permit appellant personally to question witnesses and then before the jury prohibit him to further do so amounted to criticism of him and would cause the jury to be prejudiced against him.

While it would have been more appropriate for the trial court to have made the statement out of the presence of the jury we perceive no reversible error. A trial judge is vested with broad discretion in the manner in which a trial is controlled, and a judgment will not be reversed unless probable prejudice is shown. Texas Employers’ Insurance Association v. Garza, 557 S.W.2d 843, 845 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); Best Investment Co. v. Hernandez, 479 S.W.2d 759, 761 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.).

Rule 7, T.R.C.P., provides, “Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.” Appellant was represented by competent counsel, and it has been held that the rule does not require that a party to a suit be permitted to prosecute his rights both in person and by an attorney. West v. Houston Lighting & Power Co., 483 S.W.2d 352, 358 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ).

Rule 8, T.R.C.P., provides that the attorney first employed shall be considered leading counsel and shall have management and control of the case, and an attorney of record is defined in Rule 10 as “one who has appeared in the case, as evidenced by his name subscribed to the pleadings . . ; and he shall be considered to have continued as such attorney to the end of the suit in the trial court, unless there is something appearing to the contrary in the record.” According to the statement of the trial court appellant had two attorneys of record, Marion G. Holt of Nacogdoches, and Neil Davidson of Dallas. We overrule point 9.

It is contended by appellant in point ten that there was error by the court in sustaining an objection to a statement by appellant’s counsel in his argument to the jury that appellee testified that Dr. Mahon told him he needed the metal plate in his leg removed. The record reveals that ap-pellee testified that Dr. Mahon did tell him “that I should have the leg checked about taking the plate and everything out of it and to stay off of it a while and it was just bruised up and stay off it a while.” Dr. Mahon testified that he had seen appellee only once, that appellee did not make any complaints to him about his leg, and that appellee did not complain of any injury to his leg from a gunshot wound. In further testimony Dr. Mahon said he had never recommended to appellee that “these plates be removed or would have to be removed.”

The specific argument of appellant’s counsel to which objection was sustained was: “Mr. Thompson takes the stand and tries to tell you all the trouble he’s been having about the — Doctor Mahon over there telling me I got to have the plates out.” After the court sustained the objection to that statement as being outside the record, appellant’s counsel continued: “Said he was treated over there when he bruised this leg. They told him if he kept having trouble he was going to have the plates out. Dr. Ma-hon told him that.” An objection that such argument was outside the record was again sustained. The record reveals that appellee had been to Travis Clinic in Jacksonville on another occasion and had seen a Dr. Bag-gett, and it is reasonable that appellee confused the doctors. However, there is, in our view, no reversible error. The second statement by appellant’s counsel to which an objection was sustained was, “Dr. Mahon told him that.” Appellee testified it was Dr. Mahon, but Dr. Mahon testified he did not say anything to appellee about the leg plates.

The jury heard all of the evidence from the witnesses and the jury was entitled to judge the credibility of the witnesses and the weight to be given their testimony. It would appear that it was an immaterial question whether Dr. Mahon or some other doctor told appellee (according to appellee’s testimony) that it might be advisable or necessary to remove the plates. If there was any error, and we find none, then we believe that such error did not amount to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P.

A more difficult question is presented by appellant’s points eleven and twelve wherein he complains that there was error in the action of the trial court in overruling his objection to and motion for mistrial due to the jury argument of appellee’s counsel. Appellant’s witness Copeland testified that he smelled alcohol on appellee’s breath while the latter was lying in the emergency room at the hospital after appellee had been transported there by ambulance. Copeland also testified that he had known appellee since 1971 when both of them had been in the sheriff’s posse.

Appellant’s counsel said in argument to the jury:

“Then, Mr. C. B. Copeland, an experienced peace officer, a friend of Mr. Sam Thompson, was in the emergency room when they brought him in, got up close and talked to him and smelled alcohol on his breath. His own friend came here and testified. Do you think Mr. Copeland wanted to testify against his friend? Especially to something that was not true, would he come here and prefabricate something like that against his friend? And Jerry Weems came here, a man who’s been a peace officer half his life and he’s still a young man, said he saw him at the emergency room and he had alcohol on his breath. Sam Thompson is not telling you the truth. I submit to you that Sam Thompson was out there with too much to drink and he was mean and as Mr. Fulmer testified in his own words he was belligerent.”

In his closing argument appellee’s counsel said:

“Well, let me state this. They talk about Mr. C. B. Copeland being his friend and coming up here and testifying about smelling alcohol on his breath. Well, you know what, he also wanted to tell you that the man was drunk, but he never could get that in the record, but you heard it. And you know what he was basing that on? The fact that he smelled alcohol on his breath. He never did see — even see the guy move, he was groaning of pain and moaning, there was doctors and nurses all around him at the time he was in there, yet I guess he pushed those doctors and nurses back and said here I want to smell of this man’s breath. I submit to you he ever got close to the man enough out there to smell his breath that night. And the only reason he come in here and told you that he smelled alcohol on his breath was because of some green stuff that comes out of your pocket back here.” [Emphasis added.]

Appellant’s counsel then objected that the argument was outside the record, “highly immaterial and prejudicial,” that no instruction would cure it, and moved for a mistrial. The trial court overruled the objection.

Appellant cites and relies upon Southwestern Greyhound Lines, Inc. v. Dickson, 149 Tex. 599, 236 S.W.2d 115 (1951). Appel-lee argues that, from the evidence, he was entitled to all reasonable, fair and legitimate inferences, and that latitude is afforded him to do so; that limitations will not ordinarily be imposed so long as his hypothesis is supported by the evidence and offered in good faith; that counsel may express his own conclusions from the evidence even though they appear to be illogical or improbable; and that he may draw inferences that appear to be not the most reasonable ones, as well as conclusions that are, in fact, erroneous. It is further argued by appellee that his remark to the jury was a reasonable deduction from the evidence and a logical reply to the argument of appellant’s counsel.

“Much latitude is allowed counsel in replying to his opponent’s argument. Hence an argument which is provoked or invited by an opponent’s argument is not objectional when directed to the subject matter introduced by the opponent, even though without such provocation it might have been improper.” 3 McDonald’s Texas Civil Practice sec. 13.14 (1970); Hartford Accident & Indemnity Co. v. Thurmond, 527 S.W.2d 180, 193 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.).

Each case of improper argument must be considered upon its own peculiar facts. Southern Pacific Co. v. Hubbard, 156 Tex. 525, 297 S.W.2d 120 (1956). Factors considered by the courts in determining the effect of improper argument on the verdict include the nature of the argument; whether such argument was merely a single instance of improper argument or was repeated improper argument; whether it was in response to argument of opposing counsel; whether the argument pertained to a closely contested issue; the amount of the verdict; whether an objection was made, and if so, overruled, and was repeated; and whether any instruction to disregard the argument was given to the jury by the court. 9 Baylor Law Review pp. 112, 115.

To obtain a reversal of a judgment based upon an error in the trial court an appellant has a two-pronged burden. First, he must show there was error in fact, and secondly, that such error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P.; Bristol-Myers Co. v. Gonzales, 548 S.W.2d 416, 429 (Tex.Civ.App.—Corpus Christi 1976), reversed on other grounds, 561 S.W.2d 801; Consolidated Underwriters v. Whittaker, 413 S.W.2d 709 (Tex.Civ.App.—Tyler 1967, writ ref’d n. r. e.).

In our view, the argument of appellee’s counsel was clearly improper. We do not agree that it was invited argument. There was nothing in the record upon which the argument could have been based. In our opinion the trial court should have sustained appellant’s objection to the argument complained of. The second consideration then presents itself: Was the improper argument reasonably calculated to cause, and did it probably cause, the rendition of an improper judgment? That question is to be determined as a matter of law in the light of the record as a whole. Texas Sand Co. v. Shield, 381 S.W.2d 48, 58 (Tex.1964); Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 600 (1953); Carter v. City of Tyler, 454 S.W.2d 771, 775 (Tex.Civ.App.—Tyler 1970, writ ref’d n. r. e.).

We quote from Texas Sand Co. v. Shield, supra at 58:

“However, regardless of the type or category in which an argument might fall, the true test is as laid down in Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954), the test that has been consistently followed by this Court since the adoption of Rules 434 and 503, supra. In the Haywood case, we said: ‘The true test is the degree of prejudice flowing from the argument— whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict.’ ”

The courts in Texas have held that an argument that accuses or infers that a witness was paid to testify as he did is reversible error when the witness had not been impeached and when there is nothing in the record upon which to base a suggestion that the witness had been bribed.

In Airline Motor Coaches, Inc. v. Campbell, 184 S.W.2d 532, 534-5 (Tex.Civ.App.—Beaumont 1944, writ ref’d w. o. m.), an attorney argued: “I don’t know, Gentlemen of the Jury, whether somebody greased his palm or not, but I will say when he was in this court house, and after they didn’t put him on, I will say something happened when he testifies like he did.” [Emphasis added.] The court held that the quoted argument “goes beyond the bounds of legitimate argument when there is no impeachment of the witness in evidence and no testimony in the record upon which to base the suggestion that the witness had been bribed,” and it was held to be reversible error.

In the case of Rogers v. Broughton, 250 S.W.2d 606, 608-9 (Tex.Civ.App.—Austin 1952, writ ref’d n. r. e.), in referring to several witnesses who testified appellee’s counsel said in his jury argument, “If they were not interested, and if they were not paid to come up here, by Dr. Rogers, why do you think they came up here and took the witness stand?” The court said, “In our opinion the bounds of propriety were exceeded when counsel strongly intimated that all of appellants’ witnesses testified solely from self-interest and without regard for the truth when there was nothing in the record to warrant such defamation.” The argument was held to be reversible error.

The following argument to the jury in Cross v. Houston Belt & Terminal Railway Co., 351 S.W.2d 84, 86-7 (Tex.Civ.App.—Houston 1961, writ ref’d n. r. e.), was held to be incurable and reversible error:

“ ‘[Tjhat this is a case where a man who had a pre-existing condition, and for whatever reason he laid down or was out in that yard, he was afforded the best medical treatment Harris County could offer, and he refused it, and he placed himself in the hands of these attorneys who had every reason in the world from their financial interest in this case to do everything that they can to hoodwink this Jury from the time that they went shopping for doctors and they have been trying to put in twisted evidence they do everything they can to try and — ’ ”

An objection was overruled by the court in these words: “ ‘Counsel I think you can draw emphasis from the testimony.’ ”

The objected to argument continued:

“ ‘Well, I think their conduct describes it better than anything and has shown it, that when this man went to hire them, when he could have gotten the treatment that he needed, and when he hired these attorneys it was just a question of manufacturing testimony, and they went out and hire any witnesses they can get to say things that you have heard from this witness stand here. I don’t know of any other way that we could have met it, because it is not pleasant to stand up here and have to criticize people like this, but when they can sue you for hundreds of thousands of dollars on manufactured evidence like this, when all they have to do is pay a $25 filing fee to bring a case like this into court — ’.”

In Cross, as in the instant case, the court failed to sustain an objection to the improper argument, and, in effect gave its approval to the prejudice injected into the case.

The argument in Southern Pacific Co. v. Hubbard, supra, 297 S.W.2d at pp. 123-4, was held to be reversible error. A portion of that argument was:

“Of course, according to them, anybody that sues the railroad for injuries and their wife and anybody that says ‘good morning’ to ’em is probably a thief and a liar, but you saw Mrs. Hubbard here and you saw the other people here and you saw Hubbard here. .
“Well, when I see this man and know him well, they come in and say because, in common with dozens of others, that anybody who sues this railroad is something less than honorable, can’t tell the truth, and they lie, and anybody else that comes in, even under subpoena of the Court, if they dare say anything in our favor, they are not telling the truth. And that is calculated to provoke a person.”

The court held the argument attacked the integrity of officials and counsel of the railroad and appealed to the passion and prejudice of the jury, and such statements were not warranted by the record nor in reasonable response to any statement made by the railroad’s attorney.

In our view the argument by counsel of appellee, with reference to the witness Copeland, wherein he said, “And the only reason he come in here and told you that he smelled alcohol on his breath was because of some green stuff that comes out of your pocket back here,” was an accusation that the witness had been bribed, was improper and impermissible argument which was prejudicial to appellant, was not justified by any evidence in the record, and was not a fair and reasonable answer to any argument made by appellant’s counsel. Southwestern Greyhound Lines, Inc. v. Dickson, supra.

We are of the opinion that counsel’s argument complained of was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this cause. We sustain these points.

Points thirteen and fourteen complain that the damages awarded were excessive and unjust and against the overwhelming weight and preponderance of the evidence and so excessive that the jury was motivated by bias and prejudice. In view of the disposition of this appeal we do not reach these points.

For the error pointed out we reverse the judgment of the trial court and remand the cause for a new trial.

      . A new trial should be granted in this case because the plaintiffs attorney continually over the objections of the attorney of the defendant and objections of the defendant himself, and after the court had on numerous occasions sustained the defendant’s objections thereto, repeatedly attempted to introduce a written statement made by the plaintiffs witness John Phillips made to the police shortly after the incident in question is alleged to have occurred, and during the trial of said case the plaintiffs attorney repeatedly attempted to introduce said statement, made references to alleged contrary statements made by John Phillips in said statement and sidebar remarks about contrary statements being made and about John Phillips not being their witness, all over the objections of the defendant and the order of the court sustaining said objections and such repeated efforts on the part of plaintiffs attorney to introduce said statement and make reference to alleged contrary statements in the written statement and about John Phillips not being plaintiffs witness, when said witness was called by the plaintiff, was so manifestly improper and grossly prejudicial that the defendant could not get a fair and impartial trial of the case before the jury.

      . “THE COURT: Just a moment, Counsel. Let the record show, please in this cause that Mr. Marion G. Holt has heretofore been designated as the attorney of record in this cause, by the parties all being present. And likewise, he has also been designated as the lead counsel and according to the rules of civil procedure. And has maintained that position throughout the course of this trial. Let the record further show that the defendant in this cause has further been represented by his son-in-law, the honorable Neil Davidson on Dallas County Bar, who is in attendance of this trial and participated therein for a period of two full days, before being excused by the Court, he returned to his home. And he remains as Counsel of record in this cause to participate further as he may desire. Let the record further show, please, that the Court proceeded [sic] the Defendant himself to participate in the trial of this case. During the early stages, thereof. And that the Defendant has now testified, both on — or that is the Defendant has completed testifying at length as a witness in the cause. And in accord with the rules of civil procedure of this state, the Court does now find that he has competent, adequate counsel at the counsel table, who has been here as lead counsel throughout the course of this trial. And therefore, under the law, he is precluded from now representing himself in this cause. The Court having delayed invoking that matter, until after the Defendant took the stand, after him having testified, the Court deemed it appropriate to invoke the matter. Therefore, the examination of this witness, the trial of this case shall be conducted by the lead counsel, the honorable Marion G. Holt, a very capable and competent counsel of this bar. Mr. Holt, you may have the witness. If the parties desire further clarification of that Ruling, the Court will be happy to furnish it to you.
      “MR. HOLT: Is the Court ready for me to proceed, your honor? 1 have no—
      “THE COURT: Yes. There being no question concerning the matter, you may proceed with the witness.”


author: HALL, Justice.

text:
    Al BAILEY, Individually and d/b/a ABC Cleaners, a partnership, Appellant, v. Gene M. JACKSON, Appellee.
    No. 5928.
    Court of Civil Appeals of Texas, Waco.
    Oct. 19, 1978.
    Robert J. Wilson, Burleson, for appellant.
    Michael J. Rogers and Kenneth W. Boyd, Law Offices of Michael J. Rogers, Cleburne, for appellee.
   HALL, Justice.

Plaintiff-appellee Gene M. Jackson brought this suit against defendant-appellant Al H. Bailey individually and d/b/a ABC Cleaners, a Partnership, for dissolution and termination of the partnership, for an accounting, for partition of the partnership assets, or for money damages if partition was not feasible. Plaintiff alleged that in February, 1971, he and defendant orally entered into a partnership agreement for the purpose of establishing and operating a retail clothes cleaning business in the City of Burleson under the trade name “ABC Cleaners”; that under the terms of the agreement they borrowed money from a bank, rented a building which contained fixtures and equipment for the operation of the clothes cleaning business, and bought the fixtures and equipment; that, additionally, each made small cash investments into the business for its beginning operations; that it was agreed that defendant would manage and operate the business; that they would share equally in the profits and losses; that when their cash investments were recouped they would own the assets in equal shares; that the partnership was to continue thereafter so long as they mutually desired; that they began operation of the business in February, 1971, and thereafter filed federal income tax returns for the partnership for 1971, 1972, and 1973; that early in 1975 defendant refused to account to plaintiff for the partnership business and refused plaintiff access to the business records for the purpose of filing a federal income tax return for 1974; and that since June, 1975, defendant has continued operating the business but has refused plaintiff access to the business and its records and has refused to account to plaintiff.

Insofar as pertinent to this appeal, defendant’s answer included a general denial and the plea of laches.

The case was tried to a jury. After both parties rested, acting upon plaintiff’s motion for instructed verdict, the court withdrew the case from the jury and rendered judgment (1) concluding as a matter of law “there was a partnership between the Plaintiff and Defendant which was dissolved in April of 1974, and that there were no [disputed] fact issues”; (2) appointing a Receiver to inventory and appraise the partnership assets, and to sell the assets after application to the court; (3) enjoining defendant from disposing, selling, or encumbering the partnership assets; .(4) requiring the Receiver to post a $10,000.00 surety bond; and (5) assessing all costs of suit against defendant.

Among other grounds assigned on appeal for reversal, defendant Bailey asserts the evidence failed to establish the value of plaintiff’s share of the business. We sustain this contention, reverse the judgment, and remand the case for trial.

In its material parts the evidence substantially tracks the plaintiff’s pleadings. It shows that in February, 1971, under an oral partnership agreement, plaintiff and defendant borrowed $9,000.00 from a bank, jointly executed their promissory note to the bank for the loan, secured the note with cleaning and pressing equipment which they purchased with the borrowed funds, and agreed to repay the note with monthly installments of $300.00; that each also contributed $200.00 cash to the business; that they rented the building in which the equipment was located and began operation of the clothes cleaning business; that they owned the business and its assets in equal shares; that defendant was operating manager of the business and as such was entitled to a salary of $125.00 per week if the net profits permitted it; that they would then share equally in the balance of the profits; that they filed federal income tax returns for the years 1971, 1972, and 1973; that in February, 1973, defendant paid off the balance of the promissory note which was then $2,916.72; that in April, 1974, defendant told plaintiff the partnership was ended and thereafter refused plaintiff access to the business and its books; that defendant continued operating and still operates the business; and that sometime after plaintiff filed this suit in February, 1976, defendant paid $200.00 to plaintiff stating “it was our two hundred dollars apiece we put in the cleaners to start with,” but that plaintiff has not otherwise received any money from the partnership.

The evidence does not show the value of the partnership at the time of the dissolution in April, 1974, and it does not show the profits of the partnership since the date of dissolution.

Where a partner is expelled and the remaining partner or partners continue the business without any settlement of accounts as between the expelled partner and the person or partnership continuing the business, unless otherwise agreed the expelled partner may have the value of his interest [in the business] at the date of dissolution ascertained, and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest, or, at his option, in lieu of interest, the profits attributable to the use of his right in the property of the dissolved partnership. Vernon’s Tex.Civ.St., Article 6132b, § 42. See Stone City Attractions, Inc. v. Henderson, 571 S.W.2d 206 (Tex.Civ.App.—Austin 1978); Cauble v. Handler, 503 S.W.2d 362, 366 (Tex.Civ.App.—Fort Worth 1974, writ ref’d n. r. e.).

It was plaintiffs burden to establish the value of the partnership assets at the time of dissolution; and it was also his burden to prove the profits of the business after dissolution if he wished to share in those profits. Cauble v. Handler, supra, at 503 S.W.2d 364; Taormina v. Culicchia, 355 S.W.2d 569, 576 (Tex.Civ.App.—El Paso 1962, writ ref’d n. r. e.). As we have said, plaintiff failed to prove both. Without either uncontradicted proof or a finding on disputed proof of the value of plaintiff’s 50% interest in the partnership business at the time of dissolution in April, 1974, the court could not render final judgment in the case. See Murphy v. McLaughlin, 374 S.W.2d 754, 757 (Tex.Civ.App.—Houston 1964). Defendant’s point of error to that effect is sustained.

Defendant’s contention that a fact issue was raised in the case on his pleaded defense of laches is overruled. Plaintiff filed this suit in February, 1976. The partnership was dissolved in April, 1974. Article 5527, Vernon’s Tex.Civ.St., sets a limitation period of four years for actions by partners for settlement of the partnership accounts, and provides that “the cause of action shall be considered as having accrued on a cessation of the dealings in which they were interested together.” And § 43 of Article 6132b provides: “The right to an account of his interest shall accrue to any partner, or his legal representative, as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of any agreement to the contrary.” There was no contrary agreement in our case.

The judgment is reversed and this cause is remanded for trial.


author: JAMES, Justice.

text:
    TEMPLE NEWS AGENCY, Appellant, v. WANT ADS OF WACO, Appellee.
    No. 5902.
    Court of Civil Appeals of Texas, Waco.
    Oct. 19, 1978.

      Karen M. Neeley and Bob Burleson, Bow-mer, Courtney, Burleson & Pemberton, Temple, for appellant.
    Raymond T. Palladino and F. Ben Sel-man, Jr., Waco, for appellee.
   OPINION

JAMES, Justice.

This is a venue case, an appeal from an order overruling a plea of privilege of Defendant-Appellant Temple News Agency to be sued in the county of its residence. We affirm.

Plaintiff-Appellee Want Ads of Waco, a partnership, brought this suit in McLennan County against Defendant-Appellant Temple News Agency upon an unsworn account based upon an oral contract; and in addition thereto, Want Ads sued Temple News Agency for relief under Section 17.41 et seq., Texas Business and Commerce Code, to wit, tlm Deceptive Trade Practices-Consumer Protection Act.

The Defendant Temple News Agency filed its plea of privilege to be sued in Bell County, the county of its residence; whereupon Plaintiff Want Ads controverted in effect under subdivision 5 (contract in writing), 7 (fraud), 9a (negligence), and 30 (special venue) of Article 1995, Vernon’s Texas Civil Statutes, and Section 17.56, same being the venue provision of the Deceptive Trade Practices-Consumer Protection Act.

After hearing upon the venue matter, the trial court overruled the Defendant Temple News Agency’s plea of privilege, from which it appeals.

Defendant-Appellant attacks all of the implied findings of the trial court supporting the court’s order by separate points of error; however, we will discuss only subdivision 30 of Article 1995 and Section 17.56 of the Texas Business and Commerce Code because in our opinion the trial court’s order should be affirmed upon this ground.

Subdivision 30 of Article 1995 provides:

“Special Venue. Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

Section 17.56 of the Texas Business and Commerce Code effective May 23,1977, said section being a part of the Deceptive Trade Practices-Consumer Protection Act, provides:

“Venue. An action brought which alleges a claim to relief under Section 17.50 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or has done business.”

This suit was filed by Plaintiff Want Ads on October 25, 1977. The venue of an action is controlled by the law in effect at the time of the institution of the suit. See Hanssard v. Ledbetter (Waco CA 1978) 561 S.W.2d 34, and the cases cited therein on p. 37; 59 Tex.Jur.2d “Venue,” Sec. 13, p. 381.

Plaintiff Want Ads of Waco is shown by the evidence to be a partnership whose principal place of business is in Waco, McLennan County, Texas. Want Ads was in the business of printing brochures weekly which consisted primarily of classified advertising. In other words, Plaintiff would run free of charge ads for people who had items for sale; and then when a customer sold the item or items advertised, the customer would pay Want Ads for his advertising. The bulk of Plaintiff’s advertising was in Waco and McLennan County. Plaintiff’s evidence was to the effect that Dale Foulds and Ronald H. Miller, the partners in Want Ads, made an oral agreement with Ken Hunka, the latter acting in behalf of Temple News Agency, whereby Temple News Agency agreed to come to Waco each Wednesday and pick up Plaintiff Want Ads’s brochures and deliver same to several stores and retail outlets (primarily located in McLennan County) the following day (Thursday) for display and sale; moreover, Temple News Agency agreed to pick up the old issues from said retail outlets, count the returned issues and deliver the old unsold issues back to Plaintiff for correct billing; the brochures were supposed to sell for fifty cents each at the retail outlets; Defendant Temple News Agency agreed to pay Plaintiff Want Ads twenty-five cents for each brochure sold, such payments to be made by Defendant to Plaintiff once each month. Plaintiff’s witnesses testified that in addition to dealing with Ken Hunka at Temple that they also dealt with one Red Leggott of Waco, who was also representing Defendant; that Defendant through its said representatives or agents told Plaintiff’s partners that Defendant would make the above pickups of new issues from Plaintiff each Wednesday, deliver same each Thursday to the retail outlets, pick up the old issues (from the previous week) at such retail outlets, count the returned issues and give said count to Plaintiff for billing purposes, and pay Plaintiff once each month for the brochures sold during each such month. The business dealings between Plaintiff and Defendant commenced in January 1977 and ended the latter part of August 1977. Specifically, the net amount of $1255.00 sued for alleged as due and owing by Defendant was covered by three invoices covering respectively the weeks of August 3, August 11, and August 18, 1977.

Plaintiff’s witnesses testified that Defendant failed to do what it agreed to do; that Plaintiff Want Ads actually delivered to Defendant approximately 74,000 issues but that only about 50% of such issues ever reached the shelves of the retail outlets; that the Defendants failed to make the agreed-upon deliveries and pickups and to render accurate reports to Plaintiff concerning the number of issues sold, and failed and refused to pay Plaintiff the monies which Defendant owed Plaintiff.

Ronald H. Miller, one of the partners of Plaintiff Want Ads, testified that he invested about $35,000.00 of his personal money in the partnership, and the partnership was forced to cease doing business in the latter part of August 1977, due to the failure of Defendant to perform its agreement with Plaintiff.

In the case at bar, Plaintiff-Appellee has pleaded and proved a cause of action or claim to relief under Section 17.50, and has further proved that the Defendant has done business in McLennan County; therefore, in our opinion Plaintiff-Appellee has met its burden of establishing venue in McLennan County under Subdivision 30 of Article 1995 and Section 17.56 of the Texas Business and Commerce Code.

Defendant-Appellant asserts that the evidence conclusively shows that the material acts and representations made by Defendant to Plaintiff occurred and took place prior to May 23, 1977, the date of the latest amendments to the Deceptive Trade Practices-Consumer Protection Act, that under the law prior to May 23,1977, Plaintiff was not a “consumer” as same was defined in the Act prior to May 23, 1977; and additionally, that under the definition of “services” under the law prior to said amendments, Plaintiff was not entitled to sue for the lack of “services,” which Defendant agreed to render but did not render. We overrule these contentions.

Plaintiff’s evidence shows that Defendant’s acts and representations complained of were made both before and after May 23, 1977, and the “services” which Defendant agreed to render but which Defendant rendered improperly or not at all, occurred both before and after May 23,1977; indeed, the three invoices sued upon were all dated in August 1977. In short, the dealings between the parties consisted of a continuing course of conduct which began in January 1977 and ended in August 1977.

We believe the definitions of the terms, “Services” and “Consumer” as properly applicable to the case at bar are those contained in the Act after the May 23, 1977 amendments, which read as follows:

“Section 17.45 Definitions
“As used in this subehapter:
⅜: ⅜ * ⅜ * *
“(2) ‘Services’ means work, labor or service purchased or leased for use, including services furnished in connection with the sale or repair of goods.”
⅜; sjc ⅜ * 5⅜ ⅜
“(4) ‘Consumer’ means an individual, partnership, corporation, or governmental entity who seeks or acquires by purchase or lease, any goods or services.”

We are of the opinion and hold that Plaintiff-Appellee Want Ads fell within the above definition of “consumer,” so that Plaintiff was eligible to bring the suit which it did bring, and that the “services” the want of which are the subject matter of Plaintiff’s cause of action, were properly sued for in Plaintiff’s suit.

Since we believe that venue properly lies in McLennan County for the reasons herein-above set out, we therefore affirm the trial court’s judgment.

AFFIRMED.


author: McDONALD, Chief Justice.

text:
    Charles H. BENSON et al., Appellants, v. Johnny Curtis BENSON, Appellee.
    No. 5951.
    Court of Civil Appeals of Texas, Waco.
    Oct. 19, 1978.

      Charles B. McGregor, Beard & Kultgen, Waco, for appellants.
    James A. Showers, Martin, Showers & Smith, Hillsboro, Terry W. Bradley, Bradley & Lummus, Cleburne, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal from an order of the trial court denying appellants’ application for a temporary injunction.

On April 24, 1978, a formal will of Mae Benson Steele, deceased (executed April 17, 1975), was admitted to probate by the County Court of Hill County; appellee Johnny Curtis Benson took oath as Independent Executor; and took charge of the estate, which included 10 head of cattle, 572 acres of land, and some $82,000. cash in banks. Such will in addition to naming appellee Independent Executor bequeaths him the bulk of deceased’s estate.

On July 13, 1978 appellants Charles H. Benson and Charlie M. Benson offered for probate a holographic will of deceased dated March 26, 1978 (which was 8 days prior to her death). This will bequeathed the bulk of deceased’s estate to appellants.

Probate of this will is contested by appel-lee on the grounds: it is not wholly in the handwriting of deceased; and lack of testamentary capacity of deceased.

Both cases were transferred to the District Court; were consolidated by that court; and will be resolved by trial in accordance with Section 83(b) of the Probate Code.

On July 18, 1978 appellants filed application for temporary injunction against appel-lee; alleged the estate had over $80,000. in cash; that appellee as Independent Executor without bond could deal with the property as his own funds; that appellee is financially unable to respond in damages commensurate with the size of the estate, that the bulk of the property would pass to appellants if the holographic will be probated; that they stand probability of irreparable injury; and prayed for temporary injunction to restrain appellee “from selling, transferring, assigning, mortgaging, encumbering or in any other manner alienating any of the estate property whether 1) personalty, realty or otherwise; 2) incurring any indebtedness on behalf of the estate; 3) spending any sum of cash from the deceased’s estate directly or indirectly * * for any purpose; 4) harming, destroying, or wasting any property belonging to said estate; and 5) hiding or concealing or attempting to conceal any property belonging to the estate or derived from the estate directly or indirectly,” until the court resolve the conflicting matter relating to the probate of the wills filed herein.

The trial court after hearing denied application for the temporary injunction.

The parties stipulated the facts pertaining to the application for temporary injunction, which we summarize as follows:

1) The holographic will dated March 26, 1978 has a reasonable probability of being admitted to probate; and appellants are the principal beneficiaries under such will.
2) The estate consists of over $82,000. in cash; 10 head of cattle; 2 automobiles; 572 acres of land appraised at $114,594.; and 94 acres of land conveyed to appellants and another by deceased before her death, the validity of which conveyance appellee anticipates will be contested.
3) Appellee is acting as Independent Executor of the estate without bond; and does not have nonexempt property which would equal or exceed the estate of decedent.

Appellants appeal on one point:

“The trial court erred in denying the writ of temporary injunction in that appellants showed a probable right and a probable injury, and it was an abuse of discretion to deny the same pending the trial of the principal case on its merits”.

The purpose of a temporary injunction is to preserve the status quo of the subject matter of the suit pending final trial of the case on the merits. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549.

To be entitled to a temporary injunction the applicant is not required to establish that he will prevail on the final trial, but need only to plead a cause of action and show a probable right to the relief sought, and probable injury in the interim. Oil Field Haulers Assn. Inc. v. Railroad Comm., Tex., 381 S.W.2d 183.

In suits for temporary injunction the trial judge is endowed with broad discretion to grant or deny the injunction and the judgment of the trial will be upheld unless it represents a clear abuse of discretion. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589; State v. Southwestern Bell Telephone Co., Tex., 526 S.W.2d 526.

Here it is stipulated that there is a reasonable probability of the holographic will being admitted to probate, thus establishing a probable right to the relief sought.

But probable injury to appellants has not been established. It is appellants’ burden to establish that the trial court should have granted the temporary injunction, yet they have shown no action or inaction on the part of appellee that has or will place the assets of the estate in peril. The stipulation that appellee is acting as Independent Executor without bond, and does not have nonexempt property which would equal or exceed the estate of decedent, does not establish “probable injury” to appellants.

The livestock belonging to the estate must be cared for and fed; taxes must be paid; and preparation of Federal Estate Tax return should be made. And the appel-lee is entitled to use estate funds in defending the will under which he holds appointment, if he acts in good faith.

The temporary injunction sought by appellants would have restrained and precluded appellee from spending or obligating “any sum” from the estate directly or indirectly “for any purpose”.

Appellants say in their brief that appellee would not be restrained from functioning as independent executor in the care and preservation of the estate including feeding of the livestock; or in defending the estate; and further that “the manner in which the temporary injunction is worded is a matter which is flexible to this court” (i. e. The Court of Civil Appeals).

But the application and prayer to the trial court was to restrain appellee from “spending any sum,” or “incurring any indebtedness,” “directly or indirectly,” and “for any purpose”.

And we must view the matter as it was presented to the trial court, and in such situation, we cannot say that the trial court clearly abused the broad discretion lodged in him.

Appellants’ point is overruled.

AFFIRMED.


author: McCLOUD, Chief Justice.

text:
    David STUBBS, Individually and d/b/a Stubbs Dental Laboratories, Appellant, v. PATTERSON DENTAL LABORATORIES et al., Appellees.
    No. 5217.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 26, 1978.

      J. Andrew Rollins, Arlington, for appellant.
    Arlen D. Bynum and Roy L. Stacy, Bradshaw & Bynum, Dallas, for appellees.
   McCLOUD, Chief Justice.

Plaintiff, David Stubbs, d/b/a Stubbs Dental Laboratories, hereinafter referred to at times as “Stubbs,” sued defendants, Patterson Dental Laboratories, McKinney Dental Laboratories, Patterson-McKinney Laboratories, Inc., Denticon Laboratories, and American Hospital Supply Corporation, hereinafter referred to at times as Patterson-McKinney, seeking damages from having been temporarily enjoined by defendants, former employer of plaintiff, from operating a dental laboratory. Stubbs alleged he was coerced by fraud and undue influence into signing an employment contract, containing a non-competitive provision, by defendants who schemed and conspired to discharge him, and deprive him of the means to practice his profession. The instant suit was filed on August 24,1977, in Cause No. 77-8550-G in the 134th Judicial District Court of Dallas County. The trial court granted defendants’ motion for summary judgment based on the doctrine of res judicata. Stubbs appeals. We reverse and remand.

The summary judgment proof shows that Patterson-McKinney on November 25, 1975, filed suit against Stubbs in Cause No. 75-11830-1, in the 162nd Judicial District Court of Dallas County, seeking a temporary injunction, permanent injunction, and attorney’s fees, resulting from the alleged violation by Stubbs of the non-competitive • agreement. Patterson-McKinney sought a temporary injunction, pending final trial, or until May 28,1976, whichever date occurred first. On December 12,1975, the trial court entered a “temporary injunction” enjoining Stubbs from engaging in any business, within a designated geographical area, in competition with the dental lab or dental supply company of Patterson-McKinney. The temporary injunction provided that it would remain in effect until final hearing on the permanent injunction or until final order of the court. On September 27, 1976, the judge in Cause No. 75-11830-1 signed the following order:

ORDER OF DISMISSAL
On motion of the Plaintiffs;
IT IS ORDERED, ADJUDGED AND DECREED that the above entitled and numbered cause is dismissed with prejudice to the refiling of same in any form, with costs to be taxed against the Plaintiffs.

Patterson-McKinney, in the instant suit, argues the trial court correctly granted the summary judgment because the claim asserted by Stubbs arose out of the transaction or occurrence that was the subject matter of the first suit and since the trial court in the first suit had entered a temporary injunction and later dismissed the first suit “with prejudice,” the res judicata plea was proper. We disagree.

A final judgment on the merits in a case will be conclusive, as to any “compulsory counterclaim” required to be asserted under Rule 97, T.R.C.P. Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973).

The summary judgment proof in the instant case does not conclusively establish that a final judgment on the merits was entered in the first suit. The rule is stated in 34 Tex.Jur.2d Judgments § 468 (1962) as follows:

Generally, only a final judgment can be res judicata.
An interlocutory judgment or order, that is, one made pending the cause and before the hearing on the merits, cannot, as a rule, operate as res judicata, since, to support a plea of res judicata, there must be a final judgment that settles the issues on their merits and, until a final decree is entered, an interlocutory order is subject to the control of the trial court and is open to reconsideration and revision.

See also: 2 Freeman, Law of Judgments § 717 (1925); Dallas General Drivers v. Vilbig Bros., 225 S.W.2d 617 (Tex.Civ.App.—Dallas 1949, writ ref’d n. r. e.).

Defendants cite Texaco, Inc. v. Parker, 373 S.W.2d 870 (Tex.Civ.App.—El Paso 1963, writ ref’d n. r. e.), a case involving a previous temporary injunction and subsequent plea of res judicata, as an example of an exception to the general rule. A close reading of Texaco, Inc. v. Parker and the later case of Furr’s, Inc. v. United Specialty Advertising Company, 385 S.W.2d 456 (Tex.Civ.App.—El Paso 1964, writ ref’d n. r. e.) by the same appellate court reveals that the principle applied was “law of the case” and not res judicata. In both cases, the temporary injunction in the first case had been appealed to the appellate court. While the courts in Daniel v. Kittrell, 188 S.W.2d 871 (Tex.Civ.App.—Waco 1944, no writ) and Wilson v. Abilene Independent School Dist., 204 S.W.2d 407 (Tex.Civ.App.—Eastland 1947, writ ref’d n. r. e.) speak in terms of res judicata, the temporary injunction in the prior cases had been appealed, and it appears the appropriate principle applied was the “law of the case” and not the doctrine of “res judicata.”

The law of the case has no application to the instant suit. The temporary injunction in the first suit was not appealed by Stubbs. 4 Tex.Jur.2d Rev., Part 2, Appeal & Error-Civil Cases § 997 (1974).

We do not think the words, “dismissed with prejudice,” contained in the order of dismissal, improves defendants’ position. The order of dismissal with prejudice entered in the first case on motion of Patterson-McKinney was not a final judgment on the merits. We find no Texas case directly in point. The Supreme Court of California, however, in Goddard v. Security Title Ins. & Guarantee Co., 83 P.2d 24 (1938) aff’d on rehearing, 14 Cal.2d 47, 92 P.2d 804 (1939), when confronted with an order containing a notation of “dismissed with prejudice,” where the dismissal order was clearly not on the merits, stated it was the nature of the action and the character of the judgment that determines whether it is res judi-cata, and if the judgment is clearly not on the merits, the words “with prejudice” add nothing to the effect of the judgment. The court added:

The authorities which purport to hold that judgments of dismissal “with prejudice” are res judicata are nearly all distinguishable upon careful examination. One type of case is based upon that situation where by statute or practice this kind of judgment is used after a determination on the merits, and it is a bar, not because of the use of the words “with prejudice”, but because the judgment was in fact on the merits and that form was used to describe it. See 2 Freeman on Judgments, (5th Ed.), sec. 752, p. 1581. Other cases are concerned with dismissals by consent or stipulation of the parties, after compromise or settlement of the suit, where the dismissal is intended to operate as a retraxit and end the litigation. In such cases the judgment of dismissal is entered “with prejudice” and is of course a bar to a subsequent suit. .

See 149 A.L.R. 553 (1944).

Texas courts have held that a judgment of dismissal, entered by agreement of the parties pursuant to a settlement of the controversy, becomes a judgment on the merits where the judgment contains the words “with prejudice,” Dollert v. Pratt-Hewit Oil Corp., 179 S.W.2d 346 (Tex.Civ.App.—San Antonio 1944, writ ref’d) as well as where the judgment does not contain such words. Rhoades v. Prudential Leasing Corporation, 413 S.W.2d 404 (Tex.Civ.App.—Austin 1967, no writ). The instant suit is not one where the parties entered into a compromise and settlement of the first case. The judgment of dismissal in the first case was entered on the motion of Patterson-McKinney.

Plaintiff is not collaterally attacking the judgment of dismissal in the first case. As stated in Pueblo De Taos v. Archuleta, 64 F.2d 807 (10th Cir. 1933):

The court may and must inspect a judgment pleaded in bar, and if necessary explore the record, to ascertain what was determined by it. Swift v. McPherson, 232 U.S. 51, 34 S.Ct. 239, 58 L.Ed. 499; Larkin Packer Co. v. Hinderliter Tool Co. (C.C.A.10) 60 F.2d 491, 495. That is the appropriate and conventional method used in the cases above cited in arriving at the conclusion that the prior order of dismissal did not bar a subsequent action. Such inspection is not a collateral attack on the judgment entered; it determines only that there was no such adjudication of right as will bar another action. A judgment is not attacked by ascertaining its scope.

We think the trial court erred in concluding that the doctrine of res judicata barred plaintiff’s suit. Judgment of the trial court is reversed and the cause is remanded.


text:
    Jessie Mack MOON, Appellant, v. Marilyn MOON, Appellee.
    No. 5876.
    Court of Civil Appeals of Texas, Waco.
    Oct. 26, 1978.

      Tom O’Connell, Plano, for appellant.
    Marilyn Moon Miller, pro se.
   OPINION

McDONALD, Chief Justice.

This is an appeal from an order setting appellant’s child support payments at “$27.50 per week per child” for his twin daughters born August 18, 1971.

Appellant and appellee were divorced in November 1975 at which time the trial court appointed appellee managing conservator and set child support for the minor daughters at “$25. per week”.

On May 17, 1977 appellee filed motion to modify such original order alleging: 1) The November 1975 decree was in error since the docket sheet reflected appellant “should pay $25. per week per child as child support”; 2) Since entry of the original decree “the cost of food, shelter and medical care has increased because of inflation”. Appel-lee prayed appellant be required to pay $35. per week per child.

After hearing the trial court ordered appellant to pay “$27.50 per week per child” as child support.

The trial court filed Findings of Fact and Conclusions of Law summarized as follows:

1) Appellee’s house payment has increased since the original decree.
2) Appellee’s electric bill has materially and substantially increased since the original decree.
3) Appellee’s gas bill has more than doubled since the original decree.
4) Appellee has lost her job since the original decree and is not presently employed.
5) Appellee’s grocery bill has greatly increased since the original decree.
6) The minor children are older than they were at date of original decree and now consume more food.
7) Appellee’s medical insurance premiums have increased $13. per month since the original decree.
8) An error was made in the entry of the original decree as to payment of child support.
9) Circumstances of the minor children have materially and substantially changed since the original decree.
10) The cost of food, shelter, medical care for the children has materially increased because of inflation, and child support payments should be increased.
11) Child support should be set at $27.50 per week per child.

Appellant appeals on 11 points mainly contending the evidence is insufficient to support the trial court’s Findings 2, 3, 4, 5, 7, 8, 9, 10 and 11.

The record reflects that utilities, groceries, insurance and all other expenses have increased since the original decree was entered; that appellee was employed at the time of the original decree, but is not employed now; and that appellant is employed and earning money.

Section 14.08(c)(2) of the Texas Family Code provides for modification of a child support order “if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the entry of the order or decree”.

The trial court is given a broad discretion in fixing child support payments, and in decreasing and increasing such payments, and the court’s order will not be disturbed on appeal except on a showing of a clear abuse of discretion. Rodgers v. Texas Dept. of Public Welfare, Tex.Civ.App. (Waco) NWH, 548 S.W.2d 798; Hewlett v. Hewlett, Tex.Civ.App. (Waco) er. dismd., 486 S.W.2d 107, cert. den., 414 U.S. 877, 94 S.Ct. 48, 38 L.Ed.2d 122. Brogdon v. Brogdon, Tex.Civ.App. (Ft. Worth) NRE, 392 S.W.2d 385; Reynolds v. Reynolds, Tex.Civ. App. (Dallas) NWH, 452 S.W.2d 950; Willis v. Willis, Tex.Civ.App. (Houston) NWH, 425 S.W.2d 696.

The evidence is ample to support the findings of the trial court. All appellant’s points have been considered and are overruled.

AFFIRMED.