author: CLAYTON, Justice.

text:
    Aaron WEBB, Appellant, v. Patty WEBB, Appellee.
    No. 8238.
    Court of Civil Appeals of Texas, Beaumont.
    March 8, 1979.
    Rehearing Denied April 5, 1979.
    James Sparks, Jr., Beaumont, for appellant.
    David B. Bonham, Nederland, for appel-lee.
   CLAYTON, Justice.

Appellant, Aaron Webb, instituted this proceeding seeking to modify the terms of a divorce decree entered November 4, 1977, specifically seeking modification of appellant’s visitation rights with his minor child. The trial court dismissed the proceedings for want of jurisdiction. From this dismissal order appellant has perfected his appeal.

Appellant and appellee were divorced in November 1977 in Jefferson County, Texas. The divorce decree provided that Patty Louise Webb, appellee herein, be named as managing conservator of the minor child born to the marriage, and appellant was appointed possessory conservator and was granted certain visitation rights with the child. Prior to the actual entry of the decree, appellee, with her minor child, moved from Jefferson County, Texas, to Arkansas, and they have resided in Arkansas since that time. Appellant filed his petition or motion to modify the terms of the divorce decree and sought to increase the period of visitation with the minor child. Appellee was served with process in the State of Arkansas. Her counsel was served with process in Jefferson County, Texas.

In response to appellant’s motion to modify, appellee filed a pleading designated as “Respondent’s Original Answer To Mov-ant’s Motion to Modify in Suit Affecting the Parent-Child Relationship with Exceptions.” This answer contained, in the following order, exceptions to appellant’s petition or motion, asked for reasonable attorney fees in such proceeding and a general denial. Subsequent to this answer, appellee filed a pleading designated as “First Amended Respondent’s Petition in Abatement” setting forth that “The child has been a resident of the state of Arkansas for the last one year period of time, therefore this Court does not have nor retain the proper jurisdiction, under the terms of the Texas Family Code to entertain the Motion to Modify,” and that “Respondent . has filed along with this Petition a motion to transfer this cause to a court of proper jurisdiction in the State of Arkansas.” In this pleading, appellee “prays that this Court abate these proceedings and act on Respondent’s Motion to Transfer. . . ” The record before us does not contain a Motion to Transfer.

The trial court, after a hearing, entered its order that “. . . although the 317th District Court of Jefferson County has continuing jurisdiction of this cause as provided by Sec. 11.05 of the Texas Family Code that the Court is of the opinion that it will not assert its jurisdiction over the aforementioned Section to this cause, i. e., Motion to Modify. . . . ” This order further states that “the Motion to Modify . will not be heard by this Court and said cause shall be dismissed for want of jurisdiction.”

The only question before this court is whether the trial court had jurisdiction over this action to modify the terms of visitation as set forth in the divorce decree. This question has been specially answered in the affirmative by our Supreme Court in Trader v. Dear, 565 S.W.2d 233 (Tex.1978). The court holds that Tex.Fam.Code Ann. § 11.-05(a) (Vernon Supp.1978) is explicit in fixing the continuing jurisdiction of a court:

“Except as provided in Subsections (b), (c), and (d) of this section, when a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing jurisdiction of all matters provided for under this subtitle in connection with the child, and no other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Sec. 11.06 of this code.”

The trial court acquired jurisdiction over the minor child in the divorce suit in which a final decree was rendered on November 21,1977. That court is the one that had the continuing exclusive jurisdiction over the child, and the other courts of Texas are required to respect its jurisdiction. Trader v. Dear, supra.

Appellee states in her brief that the trial court does not have the authority to transfer this cause to a court of another state. We agree. Sec. 11.06 of the Family Code provides for the transfer of such cases to other courts. However, this section only authorizes the transfer of such cases to other courts in this state and does not authorize transfer to a court outside the State of Texas.

The trial court did not file findings of fact and conclusions of law, and it is difficult for us, from the order of the court, to determine the reasons for dismissing this case for want of jurisdiction. However, from the testimony given upon a hearing conducted by the court and the briefs filed by the parties, it appears that the action of the court was taken as the result of the court’s view of the terms of Sec. 11.051 of the Family Code. This section is merely the long-arm statute for acquiring jurisdiction over a non-resident in parent-child relationship proceedings. It provides the statutory vehicle for jurisdiction over a defendant who is a non-resident of this State.

For a non-resident of this State to show a lack of jurisdiction over her person, the appellee must file her special appearance for such person pursuant to the provisions of Tex.R.Civ.P. 120a. This she has not done. When appellee filed her answer to appellant’s pleading she subjected herself to the jurisdiction of the court, thereby waiving her right to challenge the jurisdiction of the court. See Leaverton v. Leaverton, 417 S.W.2d 82 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.); Grand American Co. v. Stockstill, 523 S.W.2d 422 (Tex.Civ.App.— Amarillo 1975, no writ.)

The trial court had jurisdiction over the person of appellee and had jurisdiction of the cause asserted by appellant. The judgment of the trial court in dismissing the cause for want to jurisdiction is reversed, and the cause is remanded for trial on its merits.

REVERSED and REMANDED.


source: Caselaw Access Project

author: COLEMAN, Chief Justice.

license: Public Domain

text:
    RELIANCE INSURANCE COMPANY, Appellant, v. KRONZER, ABRAHAM & WATKINS, Appellee.
    No. 17381.
    Court of Civil Appeals of Texas, Houston (1st Dist.)
    April 5, 1979.
    May 17, 1979.
    Martin, Sperry & LeBoeuf; Edward J. Mahar, Houston, for appellant.
    Kronzer, Abraham & Watkins, Dale Friend, James E. Robinson, Houston, for appellee.
   COLEMAN, Chief Justice.

The Reliance Insurance Company intervened in a lawsuit seeking recovery of damages for personal injuries to recover the amount of the worker’s compensation benefits it had paid to the plaintiff as authorized by Article 8307, Section 6a, Texas Revised Civil Statutes Annotated. The damage suit was settled for a sum greatly in excess of the total amount of compensation and medical benefits paid by Reliance, and the judgment awarded Reliance the sum of $33,-162.53 less 25% thereof which was awarded to Kronzer, Abraham & Watkins, as attorneys’ fees. The Reliance Insurance Company appeals from that portion of the judgment awarding attorneys’ fees on the ground that the amendment to Article 8307, Section 6a, supra, authorizing the trial court to award such attorneys’ fees, was not in effect by reason of Article 8309, Section 3b, Texas Revised Civil Statutes Annotated, on the date that the worker’s compensation claimant filed his claim for compensation.

Chester Gilson was injured on July 11, 1973. He filed notice of injury and claim for compensation with the Industrial Accident Board on August 3, 1973. Reliance Insurance Company made payments of compensation to Gilson between that date and September 1, 1973, the effective date of the amendment to Article 8307, Section 6a, supra, the total of such payments being $294.00.

The award of the Industrial Accident Board on Gilson’s compensation claim was made by way of a compromise settlement agreement on October 25, 1974. Gilson filed a third party action for damages on October 17, 1974. Reliance Insurance Company intervened in that suit seeking recovery of the amount it had paid as compensation under the worker’s compensation law. A compromise settlement agreement was entered into by all parties to the damage suit in which all claims were compromised and settled, with the exception of a dispute between the plaintiff’s attorneys and Reliance. After a full hearing, the trial court entered a judgment approving the compromise settlement agreement and ordering that Reliance Insurance Company be paid its full subrogation interest out of the settlement, except for 25% of that amount, which was awarded by the court to the firm of Kronzer, Abraham & Watkins.

Senate Bill 283 enacted by the 63rd Legislature at its regular session provided for extensive revisions to Articles 8306, 8307, 8308, and 8309 of the Revised Civil Statutes of Texas, commonly known as the Texas Workmen’s Compensation Act. Section 6a, of Article 8307, supra, was amended so as to permit an injured employee to proceed against a third person to recover damages for an injury, without first establishing his right to worker’s compensation and without waiving his right to such compensation benefits. It continued the existing right of the compensation carrier to be subrogated to the rights of the injured employee, and to enforce in the name of the employee, or in its own name, the liability of a third person for the injury to the employee, and to reimburse itself out of any recovery in such a suit for the payments made to the employee including medical expenses, costs of recovering the judgment, and its attorney’s fees expended to that end. A new provision was added providing that when the compensation claimant is represented by an attorney in such a suit for damages, and the carrier’s interest is not actively represented by an attorney, the carrier shall pay such fee to the claimant’s attorney not to exceed one-third of its subrogation recovery as might be agreed upon between the attorney and the association, or in the absence of such agreement, as allowed by the trial court.

By the same Senate Bill Section 3b, Article 8309, Revised Civil Statutes of Texas, 1925, was amended to read as follows:

(Sec. 3b.) No inchoate, vested, matured, existing or other rights, remedies, powers, duties or authority, either of any employee or legal beneficiary, or of the board, or of the association, or of any other person shall be in any way affected • by any of the amendments herein made to the original law hereby amended, but all such rights, remedies, powers, duties, and authority shall remain and be in force as under the original law just as if the amendments hereby adopted had never been made .

In Texas Employers’ Insurance Association v. Vineyard, 340 S.W.2d 106 (Tex.Civ. App.—Dallas 1960, writ ref’d n.r.e.) the court in speaking of a bill enacted in 1957 amending Article 8306, supra, says:

In view of the above legislative expressions we think it too plain for argument that our Legislature intended that the 1957 amendment of Art. 8306, [Section] 11, V.A.C.S. should not affect any rights, vested or remedial, with respect to injuries which occurred prior to the enactment of the amendment.

The question of whether the attorneys who represented a deceased employee’s beneficiaries, in a suit to establish liability and damages against a third person were entitled to be paid attorney’s fees out of the amount set aside to the workmen’s compensation insurer was presented in Simpson v. Texas Employers Association, 519 S.W.2d 209 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n.r.e.). In this case, the accident occurred and the suit for damages was filed prior to September 1, 1973, the date on which the amendment to Article 8307, Section 6a, supra, became effective. The case was called for trial on September 10, 1973. The action of the trial court in denying attorney’s fees was affirmed on the ground that the amendment creating the right to attorney’s fees out of the subrogation recovery was not retroactive and that “Texas Employers’ subrogation interest, in its total amount, was — as of the time of the settlement of the suit at common law, and long prior thereto — inchoate, vested, and substantive” and thus could not be affected by the amendment Section 6a, supra, because of the language of Section 3b, supra.

Section 6a as it existed prior to the amendment was discussed by the Supreme Court of Texas in Fort Worth’s Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865 (1952), and the court held that where compensation has been paid to an injured employee, and he later files suit against the third party tortfeasor, the first money paid to or recovered by the employee belongs to .the compensation carrier. The court also recognized that where the insurance company brings suit and recovers a sum less than that paid by the insurance company to the employee together with the reasonable cost of enforcing the liability, the employee is entitled to nothing. The court further stated that where the employee chooses to receive compensation from his employer’s compensation carrier he “bring[s] into play the law which subrogates the compensation carrier to the employee’s rights against the third party tort-feasor.”

In discussing the language of Section 6a, the Supreme Court noted that there is language in the article indicating that the right of subrogation arises when compensation is claimed by the injured employee, but held that a consideration of the article as a whole makes it clear that the right does not mature until the insurer has paid or assumed to pay compensation. Texas Employers’ Insurance Association v. Brandon, 126 Tex. 636, 89 S.W.2d 982 (1936).

The Supreme Court again recognized the rule that when a claimant elects to proceed under the workmen’s compensation statute and qualifies for award thereunder, the cause of action of the compensation carrier does not accrue against the third party until the amount of the award made by the Industrial Accident Board is paid by the carrier or until the claimant obtains a final judgment in a court of competent jurisdiction against such insurance carrier. When either of these events occurs the cause of action matures against the third party and the statute of limitations begins to run. Campbell v. Sonford Chemical Company, 486 S.W.2d 932 (Tex.1972).

It is not necessary that compensation has been paid or assumed to be paid for a right to subrogation to exist. However, this right will not mature until such payment or assumption has occurred. As a result, under the former law, the court held that where an event occurred causing injury to an employee under circumstances giving rise to a possible cause of action against a third party, and the employee settled his claim against such third party before proceeding with his claim for compensation insurance, he destroyed the insurance carrier’s right to subrogation and, therefore, his right to recover compensation was lost. Warneke v. Argonaut Insurance Company, 407 S.W.2d 834 (Tex.Civ.App.—El Paso 1966, writ ref’d n.r.e.).

Prior to the 1973 amendment to Section 6a it contained no provision which could be construed as burdening the insurance carrier with any part of the compensation claimant’s attorneys’ fees. On the contrary, the insurance company was entitled to recover its expenses incident to recoupment including a reasonable attorneys’ fees. Dover v. Casualty Reciprocal Exchange, 410 S.W.2d 306 (Tex.Civ.App.—Amarillo, 1966, no writ hist.).

Before the enactment of the 1973 amendment, the Reliance Insurance Company had an inchoate or contingent right to recover from negligent third parties all sums that they might be liable to pay to Chester Gilson as workmen’s compensation payments together with the reasonable fees required to enforce the liability of such third parties. This right had accrued because of the payments of workmen’s compensation benefits to Gilson prior to September 1, 1973. This right clearly came within the provision of Article 8309, Section 3b supra, providing that “no inchoate, vested, matured, existing or other rights . shall be in any way affected by any of the amendments herein made . . . ” The trial court was not authorized to charge the insurance company’s portion of the damage award with the attorney’s fee.

The judgment of the trial court is reformed to eliminate the provision awarding attorneys’ fees, and as reformed is affirmed.

WALLACE and PEDEN, JJ., also sitting.


text:
    The TRANSPORT INSURANCE COMPANY, Appellant, v. Jimmie Q. CAMPBELL, Appellee.
    No. 17292.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 12, 1979.
    Rehearing Denied May 17, 1979.

      Talbert, Giessel & Stone, Alice Giessel, Houston, for appellant.
    Thurlow & Hennessy, Edward J. Hennessy, Houston, for appellee.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   COLEMAN, Chief Justice.

This is an appeal from a judgment entered on a jury verdict awarding Jimmie Q. Campbell total and permanent disability benefits under the Workers’ Compensation Act. The Transport Insurance Company contends that there is no evidence that a blow to the back of Campbell’s head sustained in the course of his employment was the producing cause of the total incapacity subsequently sustained by Campbell due to a stroke (hemiplegia).

Mr. Campbell was a long haul truck driver employed by J. H. Rose Truck Line. On October 12, 1973 he drove into the Rose Truck terminal located in Montebello, California. While he was attempting to attach a trailer to the tractor which he was driving, it was found that the mud flap brackets attached to his tractor would have to be removed.

Mr. Campbell was directed to remove the brackets and while in a squatting position using a wrench to remove a nut holding the bracket, the wrench slipped causing him to fall back and bang the back of his head against the trailer dolly. He suffered a painful blow which caused a bump to rise on his head, but the force of the blow did not break the skin. He did not lose consciousness. He reported the incident and continued to remove the mud flaps. At about two o’clock on the morning of October 12, he left the Montebello terminal.

Mr. Campbell testified that he then drove to Rialto, California, a distance of some 50 miles where he drove into a truck stop for fuel. It was just before daylight when he arrived in Rialto. At that time he was having no physical difficulty, but because he was tired he decided to rest. He secured a room at the truck stop and went to bed.

About ten o’clock in the morning he woke up, took a shower and shaved. At that time he had a slight headache which had persisted since he had bumped his head. However, he was not sure that he had the headache while he drove from Montebello. He stated that he didn’t pay “all that much attention” to it.

After he finished cleaning up he took two aspirin for the headache and then cleaned his truck and fueled up. He went into the restaurant and ordered breakfast. While he was eating his breakfast he noticed he was losing control of his hand. He remembered that he had dropped a bundle of clothing when he went from his room to the truck. While he was paying his bill his leg gave way and he fell to the floor. He got up and went across the driveway to a pay phone and called his mother to tell her that he was going paralyzed on his left side. He then walked to the door of the truck stop and fell again and was unable to get up. An ambulance took him to the San Bernar-dino Community Hospital. At that time Mr. Campbell was suffering from soft paralysis of his left side.

Mr. Campbell had undergone a physical examination on May 5, 1973, when he went to work for J. H. Rose. This was an examination required by the Interstate Commerce Commission. It was performed by a doctor selected by J. H. Rose, and after the results of the physical were known he was employed.

Mr. Campbell testified that at one time he had Bell’s Palsy, which went away in about three or four weeks. He testified that he had never been treated for hypertension or high blood pressure and had never taken medication for those problems. He had never been treated for a heart attack.

When Mr. Campbell arrived at the emergency room of the hospital he was first seen by the doctor on duty, who instituted emergency procedures including a spinal tap. This doctor called in Doctor Lutz, an internist, who continued to treat Mr. Campbell while he was in the San Bernardino Hospital. Doctor Lutz called in Doctor Prahar, a neurosurgeon, for consultation. During his stay in the hospital Mr. Campbell was examined by Doctor Cover, a specialist in internal medicine, who was employed by Transport Insurance Company. Doctor Cover examined Mr. Campbell on October 23, 1973. Thereafter Mr. Campbell was transferred to the Veterans Administration Hospital and was not seen again by these doctors.

Where the circumstances shown by the evidence are such that it is reasonable to believe that a job-related incident precipitates a physical failure, a jury finding that the incident was a producing cause of the plaintiff’s disability is supported by evidence. In determining the question of reasonableness, consideration must be given to the time interval between the incident and physical failure and whether the occurrence is competent to produce such a result. Baird v. Texas Employers’ Insurance Association, 495 S.W.2d 207 (Tex.1973); Insurance Company of North America v. Kneten, 440 S.W.2d 52 (Tex.1969). The Supreme court of Texas has been liberal in construing the word “accidental” and “injury” in cases involving heart attacks and strokes, and in reaching the conclusion that the record at hand presented some evidence of a particular strain, overexertion or shock which caused the incapacity. Baird v. Texas Employers’ Insurance Association, 495 S.W.2d 207 (Tex.1973). Where the disability results from certain other conditions, such as cancer, where causation is less well understood, the plaintiff has the burden to prove by a competent medical witness that in reasonable medical probability the alleged event or accident caused the injury. However, it is not critical, as matter of semantics, that the doctor use the particular words “in reasonable medical probability” if that is, in context, the substance of his testimony. Insurance Company of North America v. Kneten, 440 S.W.2d 52 (Tex. 1969).

Doctor Lutz, the treating physician, testified that Mr. Campbell told him that he had received a bump on the head and that at the time he took a physical examination for his job he had been told that he had high blood pressure. On examining Mr. Campbell he found a significantly elevated blood pressure, distorted speech, a harsh heart murmur and paralysis of the left side. He testified that based on medical probability Mr. Campbell had developed a clot in the brain or had a clot elsewhere which had traveled to the brain, and had paralyzed the left side of his body. He considered it probable that the blood clot was caused by high blood pressure. He recognized the possibility that the bump on the head could have caused the stroke but felt that it was highly unlikely, He stated that a trauma to the head would ordinarily cause medical symptoms which would become apparent immediately or else would probably cause “a very insidious development of symptoms and findings over a period of perhaps weeks or months.” The fact that Mr. Campbell’s symptoms developed rather dramatically and suddenly over several minutes is more compatible with a stroke syndrome, a clot or a hemorrhage. Because of the sketchy information he had at the time the testimony was given, Dr. Lutz could not be sure but was of the opinion that a blood clot, as opposed to a hemorrhage, was more likely to be the cause of Mr. Campbell’s condition.

Doctor Prahar saw Mr. Campbell only one time and gave an opinion based upon his experience with head injuries and his knowledge of the causes of hemiplegia gained from the study of other cases. In terms of medical probability it was his opinion that the cause of Mr. Campbell’s condition was hardening of the arteries in the blood vessels to the head. Based on reasonable medical probability he did not think that the blow to the head had anything to do with the stroke in Mr. Campbell’s case. He stated that he would not discount the possibility that the hemiplegia could have been caused by a blow to the head but that in his opinion it was unrelated.

Doctor Cover, who examined Mr. Campbell at the request of Transport Insurance Company, testified that he obtained from Mr. Campbell a history of prior hypertension. He diagnosed Mr. Campbell’s condition as a weak paralysis probably due to clotting in the cerebral blood vessels. He did not relate Mr. Campbell’s condition to the minor blow or to any condition of his employment. He considered that the most likely cause of the paralysis in terms of medical probability to be his hypertension. He stated that he considered it significant that Mr. Campbell was not struck down by the blow and did not have any interval symptoms such as a headache or “impaired mentation.” It was his opinion that in Mr. Campbell’s case of all the possible causes of the stroke, the possibility of a blow contributing to that result would be about the least likely and extremely remote, although he could not entirely discount the possibility. At a later time when he had been furnished certain data from the Veterans Hospital he stated “now I recognize the possibility that there was hemorrhage and that such a hemorrhage could be the result of trauma.” However, he again stated that in his opinion Mr. Campbell’s paralysis was not related to the bump on his bead.

As was stated in Baird v. Texas Employers’ Insurance Association, 495 S.W.2d 207 (Tex.1973), “an answer to the problem of whether the evidence, most often circumstantial in nature, together with the inferences that may be drawn therefrom, present issues of fact, is always difficult in this type of case. There is no precise rule to measure probative force and by which to decide if questions of fact are raised by the evidence.” Here we have a blow to the head sufficient in force to cause pain and swelling. No other symptoms appear for some eight hours. A short time before Campbell suffered his first disabling symptoms he had a slight headache. He was not sure he had a headache prior to that time. Within a short period of time after noticing the headache, Mr. Campbell suffered paralysis of his left side. There is medical testimony that a blow to the head might cause a hemorrhage that might result in hemiple-gia. There is no evidence that the blow to the head suffered by the plaintiff in fact caused a hemorrhage. Each of the doctors testified that in reasonable medical probability the stroke was caused by hypertension. Two of the doctors testified that the plaintiff gave a history of previous hypertension. The plaintiff denied giving this information to the doctors. Doctor Lutz testified that his examination of the patient revealed that he was suffering from hypertension and that he treated him for that condition while in the hospital.

There is medical testimony which can be considered in evaluating the circumstantial evidence relied on to establish a necessary chain of causation from the blow on the head to the condition of hemiplegia. Doctor Lutz testified that hypertension is known to produce vascular disease, hardening of the arteries, and increases the risk of strokes. He testified that there are numerous causes of hypertension but that probably in ninety percent of the cases the cause is unknown. He testified that blunt trauma to the body could be the cause of a blood clot but that the most usual cause is atherosclerosis. A blow to the head could tear a blood vessel which might result in either a major or a minor hemorrhage. Blood would leak into surrounding tissue and if the tissue is strong enough it would be localized there and absorbed or altered chemically and replaced by a scar. If the tissue is not sufficiently strong to contain the blood, it would leak into other structures which might increase the pressure within the brain. The increased pressure might lead to hemiplegia. Doctor Lutz also testified that a hemorrhage resulting from head injury usually tends to develop with headache, vomiting, and dizziness before the development of a hemiplegia.

There is no medical testimony sufficient to support the finding of the jury that there was a causal relationship' between the blow on the head and the hemiplegia. In assessing the sufficiency of the circumstantial evidence to support the jury verdict we are mindful of the general rule that to establish a fact by circumstantial evidence, the circumstances relied on must have probative force sufficient to constitute a basis of legal inference; it is not enough that they raise a mere surmise or suspicion of the existence of the fact or permit a purely speculative conclusion. The circumstances relied on must be of such a character at to be reasonably satisfactory and convincing. At all events they must not be equally consistent with the nonexistence of the ultimate fact. Where the proven circumstances are consistent with either of two theories and there is nothing to show that one rather than the other probably is correct, then neither is proven. Baker v. Loftin, 222 S.W. 195 (Tex.Comm.App.1920, judg. approved); Republic National Life Insurance Company v. Bullard, 399 S.W.2d 376 (Tex. Civ.App.-Houston, writ ref’d. n. r. e.); Polasek v. Quinius, 438 S.W.2d 828 (Tex.Civ. App.-Austin 1969, writ ref’d. n. r. e.)

The facts presented do not reasonably lead to a conclusion that the plaintiff’s injury was caused by the blow to the head rather than that the injury was caused by hypertension. Common experience and knowledge in the area under consideration is speculative and unreliable and the medical testimony is strong and uniform to the effect that the blow to the head was not in reasonable medical probability a factor in the causation of the hemiplegia.

Since there is no evidence that the blow to the head caused or contributed to the disability of the plaintiff, the trial court erred in overruling defendant’s motion for directed verdict made at the close of all the evidence. The judgment is reversed and judgment is rendered for appellant.

On Motion for Rehearing

On reconsideration of the evidence we have concluded that we were in error in reversing this case. The rule of Garza v. Alviar, 395 S.W.2d 821 (Tex.1965) must be applied and we can consider only the evidence and inferences tending to support the jury findings, and must disregard all evidence and inferences to the contrary.

The medical witnesses agreed that the exact cause of the plaintiff’s hemiplegia could not be pinpointed because sufficient testing was not performed. They agreed that a blow to the head of the plaintiff could result in that condition. They relied on a history of hypertension which the plaintiff denied relating to them. We conclude that the medical testimony to the effect that hypertension was the probable cause of the hemiplegia must be disregarded. Furthermore, since this testimony was based on general medical experience and medical literature rather than the specific symptoms of the plaintiff, we do not consider the finding on causation to be so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

Mr. Campbell, testified that he was not having any difficulties with his health and had passed a work related physical examination a few months prior to the date on which he received a blow to his head. The blow was severe enough to raise a knot on his head and to cause a headache. The headache persisted in a mild form until the time of his collapse some eight to ten hours later. No incident intervened between the blow to the head and the on-set of the hemiplegia. No unusual exertion was experienced during this period of time. He stopped for the night a short time after the accident because he was not feeling well. When he got up the next morning he began experiencing symptoms which led to his collapse within a short period of time.

The circumstances are such to lead to the reasonable conclusion that the job related incident precipitated the hemiplegia. The testimony of the doctor is not so adverse to the existence of probable cause as to overcome the weight of the circumstantial evidence. Insurance Company of North America v. Kneten, 440 S.W.2d 52 (Tex.1969).

The motion for rehearing is granted and the judgment heretofore rendered by this court is withdrawn. The judgment of the trial court is affirmed.


author: GUITTARD, Chief Justice.

text:
    Joseph L. WATSON, Appellant, v. ZEP MANUFACTURING COMPANY, Appellee.
    No. 19827.
    Court of Civil Appeals of Texas, Dallas.
    April 13, 1979.
    Rehearing Denied May 9, 1979.

      Elizabeth Julian, Michael M. Daniel, Dallas Legal Services Foundation, Dallas, for appellant.
    John F. McCarthy, Jr., Charles L. Perry, Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, for appellee.
    Before GUITTARD, C. J., and CARVER and HUMPHREYS, JJ.
   GUITTARD, Chief Justice.

Joseph L. Watson sued Zep Manufacturing Company for damages for discharging him from his job with Zep. The trial court rendered summary judgment denying recovery on the ground that Watson was an employee at will. He appeals on two grounds, first, that the summary-judgment proof fails to negate conclusively his allegations that there was an implied agreement not to discharge him without cause, and, second, that the public policy of the state has changed the common-law rule concerning employment at will so that the employer has a legal obligation not to discharge without cause. Neither of these grounds, in our view, provides a sound basis for reversal.

The summary-judgment proof establishes an oral contract of employment at an hourly wage. No period of employment was specified. Watson admits he was free to quit any time he chose. Before he was hired by Zep, he had worked irregularly through a labor pool. He had worked at Zep for five months before his discharge. To raise an issue of an implied agreement not to discharge him without cause, Watson relies on three circumstances. He says that Zep offered him a “steady job,” that he was promised and received a raise in pay after three months, and that when he was discharged, Zep made representations that he was being fired for cause.

None of these circumstances, in our opinion, is evidence of an implied agreement. All are consistent with employment terminable at the will of either party. The job was certainly “steady” as compared to his former intermittent employment. The promised raise in pay was evidently conditioned on continued employment, and the statement of reasons for the discharge implied no recognition of an obligation to give reasons, or that the reasons stated should be considered just cause for discharge. The case is not like those in which the employee was induced to leave a steady job with good prospects, or changed his residence in reliance on the new employment. See Culkin v. Neiman-Marcus Co., 354 S.W.2d 397, 400 (Tex.Civ.App.—Fort Worth 1962, no writ); Dallas Hotel Co. v. Lackey, 203 S.W.2d 557, 562 (Tex.Civ.App.—Dallas 1947, writ, ref’d n.r.e). Consequently, we hold that the summary-judgment proof establishes that there was no implied agreement not to discharge him without cause.

Neither can we agree with Watson’s contention that the employment-at-will rule is contrary to the public policy, statutes, and common law of the state. This rule has been stated and applied in many Texas decisions. Examples include East Line & R. R. R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 102 (1888); United Services Automobile Ass’n v. Tull, 571 S.W.2d 551, 553 (Tex.Civ. App.—San Antonio 1978, writ, ref’d n.r.e.); Cactus Feeders, Inc. v. Wittler, 509 S.W.2d 934, 937 (Tex.Civ.App.—Amarillo 1974, no writ); NHA, Inc. v. Jones, 500 S.W.2d 940, 943 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n. r. e.); Scruggs v. George A. Hormel & Co., 464 S.W.2d 730, 731 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.); Horn v. Builders Supply Co. of Longview, 401 S.W.2d 143, 144 (Tex.Civ.App.—Tyler 1966, writ ref’d n. r. e.). The rule is a particular application of the general rule that a contract for an indefinite period of time is terminable at the will of either party. See Clear Lake City Water Authority v. Clear Lake Utilities Co., 549 S.W.2d 385, 390 (Tex. 1977); Byrd v. Crazy Water Co., 140 S.W.2d 334, 336 (Tex.Civ.App.—Dallas 1940, no writ).

Watson bases his argument on considerations of social policy, which, he asserts, are supported by various statutes enacted for the benefit of employees. None of the statutes cited concern the employer’s right to discharge without cause. Consequently, we do not see that they have any bearing on the problem.

Watson’s principal contention is that job security is so important to workers individually and to economic and social welfare generally that the law should impose a duty on employers to deal fairly with workers in terminating their employment, and, therefore, not to discharge them without cause. Zep replies that the policy considerations run the other way. It argues that the privilege to discharge employees at will is an important aspect of management that cannot be denied without sacrificing efficiency of operations and loss of confidence in worker loyalty. It insists that if employers must be prepared to prove to a jury a “just cause” for every discharge, they will be deterred from pruning their organizations of marginal workers whose attitude is uncooperative and whose productivity is low.

We conclude that this conflict of views should be resolved in a different forum. As an intermediate court, our duty is clear. We must follow the law as previously declared and applied in the courts in this state. In our system of constitutional government, the primary agency to declare the policy of the state is the legislature. Although legislative processes may be imperfect, appeals for judicial legislation based on legislative inaction betray a loss of faith in democratic government. In the long run the popular will, as expressed in legislation, may be a more reliable means to social progress than the employment of the adversary process of an already overloaded judicial system as a remedy for every social ill.

If the case were one of first impression, we would have the responsibility as well as the opportunity to consider the social implications of our decision. See Sims v. Century Kiest Apartments, 567 S.W.2d 526, 533 (Tex.Civ.App.—Dallas 1978, no writ). When the law is admittedly settled, however, the obligatory course for an intermediate court is judicial self-restraint.

Affirmed.


author: WALLACE, Justice.

text:
    WHITE STORES, INC., Appellant, v. Merley CARMOUCHE, Appellee.
    No. 17356.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 19, 1979.

      Fulbright & Jaworski, Ronald G. Bank-ston, Houston, for appellant.
    Gerald J. Goodwin, Houston, for appellee.
   WALLACE, Justice.

This is an appeal from the trial court’s order overruling appellant’s plea of privilege.

Appellant is a private corporation whose home office is in Wichita County, Texas. Appellee is a resident of Harris County, Texas. In her controverting affidavit to appellant’s plea of privilege, appellee alleged that venue was proper in Harris County under Article 1995 §§ 9a, 23, V.A. T.S.

Appellee testified at the plea of privilege hearing that while shopping in appellant’s store in Houston, Harris County, Texas, she sat in a patio swing which was on display adjacent to an aisle and accessible to customers. As she sat down the swing fell, injuring her. The swing did not look dangerous and was not attached to the floor.

Bobby Odom, appellant’s store manager, testified that he was in charge of the store in question. His duties included handling inventory and money and supervising the store employees. He further testified that he was responsible for setting up and displaying merchandise,, including the swing in question. No testimony was elicited from Mr. Odom as to the condition of the swing in question, although he testified that he saw the swing after the accident.

Appellant’s points of error numbers one and two allege “no evidence” and “insufficient evidence” to establish venue under Article 1995 § 9a, Y.A.T.S. Subdivision 9a provides:

A suit based upon negligence may be brought in the county where the act or omission of negligence occurred [and] in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant’s residence are:
1. That an act or omission of negligence occurred in the county where suit was filed.
2. That such act or omission was that of the tortfeasor, in person, or that of his servant, agent or representative acting within the scope of his employment, or that of the person whose estate the defendant represents as executor, administrator, or guardian.
3.That such negligence was a proximate cause of plaintiff’s injuries.

Appellee . contends that the trial court could have applied the doctrine of res ipsa loquitur to find a prima facie case of negligence against appellant. Her original petition alleged specific acts of negligence as well as “other acts of negligence.” This was sufficient to give appellant notice that she might rely on res ipsa loquitur. Mobile Chemical Company v. Bell, 517 S.W.2d 245 (Tex.1974).

The doctrine of res ipsa may be applied if the circumstances surrounding the event are such that the mere occurrence of the accident supports reasonable inferences that there was negligence involved and that the defendant was the negligent party. Mobile, supra.

The appellee must prove (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the appellant. Owen v. Brown, 447 S.W.2d 883 (Tex.1969).

The general rule is that venue facts cannot be established by inference or implication. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (Tex.1948). However, that rule is limited where the doctrine of res ipsa loquitur is invoked. By its very nature res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence. Mobile, supra. When such facts are presented,

“they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal,.not necessarily that they require it . . . ” Id.

Appellee has presented facts of the occurrence which warrant the inference of negligence. A patio swing does not ordinarily collapse in the absence of negligence.

The testimony from appellant’s store manager, Bobby Odom, establishes that the swing was under the control and management of appellant. This control existed both at the time the swing was assembled and also at the time of the injury.

[T]he “control” requirement is not a rigid rule that the instrumentality must have always been in the defendant’s possession or even that it must have been in the defendant’s control at the time of the injury. Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968 (1944). It is sufficient if the defendant was in control at the time of the negligence inferable from the first factor probably occurred, so that the reasonable probabilities point to the defendant and support a reasonable inference that he was a negligent party.” Mobile Chemical Company v. Bell, supra, 517 S.W.2d at p. 251.

It is established in the record that appellant had control and management of the swing in question when it was assembled and that defendant put the swing on display in its store. Appellee testified that she did not sit on the edge of the swing or “plop” into it. There was no evidence introduced by appellant and none is in the record that would indicate any interference with the swing by third parties or any misuse of the swing by appellee. The reasonable probabilities point to the appellant and support a reasonable inference that it was the negligent party.

Since the evidence presented by the appellee made out a prima facie case of negligence under the doctrine of res ipsa loquitur, it was incumbent on appellant to introduce evidence to explain, rebut or otherwise overcome the inference that the injury complained of was due to its negligence. Goodpasture Inc. v. Hosch, 568 S.W.2d 662 (Tex.Civ.App.—Houston [1st District] 1978, writ dism’d). No findings of fact or conclusions of law having been filed by the trial court, this court must resolve all fact issues in favor of the trial court’s ruling if there is any probative evidence supporting them. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (Tex.1953); M Systems Food Stores, Inc. v. Webster, 511 S.W.2d 427 (Tex.Civ.App.—El Paso 1974, no writ).

There being no evidence presented that the collapse of the patio swing was probably caused by some condition or instrumentality other than that within appellant’s management and control, and since there was probative evidence to support the trial court’s ruling, the order of the trial court is affirmed.

EVANS and WARREN, JJ., sitting.


author: WARREN, Justice.

text:
    CITY OF HOUSTON, Texas, Appellant, v. Mary Ann DAVILLA, Appellee.
    No. 17393.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 19, 1979.
    Rehearing Denied May 17, 1979.

      Robert M. Collie, Jr., City Atty., Dale M. Tingleaf, Asst. City Atty., Houston, for appellant.
    Jack E. Stephens, Houston, for appellee.
   WARREN, Justice.

The City of Houston (City) appeals from a judgment rendered on a jury verdict wherein Mary Ann Davilla, appellee, recovered damages sustained as a result of a slip and fall at the City’s surplus and salvage warehouse.

On November 11, 1974, appellee went to the City’s surplus and salvage warehouse to purchase some books. While scanning the book shelves, she slipped on a patch of oil or grease and fell, fracturing her elbow.

In two points of error the City asserts that there was no evidence or, alternatively, insufficient evidence to support the jury’s finding that the oil or grease had been on the warehouse floor for such length of time that it should have been found and cleaned up by a person of ordinary prudence in the exercise of ordinary care before the occurrence in question.

Mrs. Mary Brown, the City’s supervisor of the warehouse, testified that she discovered a good sized patch of oil which was located partially in the aisle and partially beneath the book shelves. After making this discovery, Mrs. Brown testified, she sent one of her subordinates to obtain sawdust and rags in order to remove the oil.

When questioned regarding the length of time the oil or grease had been on the floor, Mrs. Brown testified:

“Oh, I don’t know. It wasn’t too long.”
“She (appellee) fell almost immediately after I saw it (the oil) and told him.” (the subordinate)
“I had just moved from that position, and
I was on the other side of the rack, waiting on customers.”

The record is void of any estimate regarding the length of time which elapsed between the discovery of the oil and the ap-pellee’s fall.

The appellate standard for reviewing a legally insufficient evidence point requires the court to determine whether there is any evidence of probative force to support the jury’s finding. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Only the evidence and inferences tending to support the finding can be considered, and all contrary evidence and inferences must be disregarded. Garza, supra.

The appellate standard for reviewing a factually insufficient evidence point requires the court to consider and weigh all the evidence in the record to determine whether the jury’s verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Considering the above testimony, it appears that the appellee fell “almost immediately” after the oil had been discovered. A contrary inference arises, however, when the testimony is viewed in light of the actions of Mrs. Brown. After discovering the oil, she discussed the matter with two other customers; she called a subordinate over and proceeded to instruct him to remove the oil; she then walked down the aisle and around to the other side (a distance between 50 and 100 feet) and proceeded to wait on other customers.

When scrutinized in context there is evidence from which the jury could infer that Mrs. Brown had loosely employed the phrase “almost immediately.” This inference is crucial, because Mrs. Brown admitted that the pool of oil on the floor constituted a dangerous condition. Given these circumstances it was within the province of the jury to determine whether the oil had been on the floor for such a length of time that it should have been removed by a person of ordinary prudence exercising ordinary care in the same or similar circumstances. The jury could have concluded that under the circumstances Mrs. Brown should have personally cleaned up the foreign substance rather than taking the more time-consuming course of conduct illustrated by her testimony.

We therefore conclude that the evidence supporting the finding is not so weak as to be legally insufficient or so contrary to the great weight of the evidence as to be factually insufficient.

The judgment of the trial court is affirmed.

EVANS and WALLACE, JJ., also sitting.


author: KEITH, Justice.

text:
    Charles A. ROATH, Individually and D/B/A Chuck’s T.B.A. Supply, Appellants, v. UNIROYAL, INC., Appellee.
    No. 8255.
    Court of Civil Appeals of Texas, Beaumont.
    April 19, 1979.

      Alan McNeill, Beaumont, for appellants.
    Jon D. Totz, Houston, for appellee.
   KEITH, Justice.

Defendant below appeals from a judgment that granted full faith and credit to a Kansas judgment entered against defendant.

On September 23, 1963, United States Rubber Company, now Uniroyal, Inc., obtained a default judgment in the District Court of Johnson County, Kansas, against defendant. At that time defendant was a Kansas resident and was personally served. This judgment was revived on January 12, 1967, by means of a garnishment proceeding, for a five-year period. The judgment became dormant after January 12, 1972. However, on August 9, 1972, plaintiff filed a motion to revive the dormant judgment under Kansas statutes, and a citation by publication upon the oath of plaintiff’s attorney was made out, filed, and published. On June 4, 1973, the Kansas court revived the judgment by a journal entry.

In August 1971, defendant moved to Texas and was residing there when the revivor suit was filed and heard. In 1975, plaintiff filed this cause of action, seeking to enforce the Kansas judgment, and defendant was personally served at 109 Berkshire Lane, Beaumont, Texas, where he had resided since moving to Texas. Defendant first learned of the Kansas court’s motion to revive, the citation by publication, and the journal entry when he received this citation. In a non-jury trial, the court granted a judgment in favor of plaintiff, finding that the revived judgment was entitled to full faith and credit in the courts of Texas.

Texas courts are required to give full faith and credit to valid final judgments of sister states. U.S.Const. art. IV, § 1. However, a Texas court may examine the facts to determine whether one sister state’s court had jurisdiction to enter the decree of which full faith and credit is sought. McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722, 744 (1961); Chunn v. Gray, 51 Tex. 112, 114 (1879); Layton v. Layton, 538 S.W.2d 642, 646 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.); Gunther v. Gunther, 478 S.W.2d 821, 827 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n. r. e.). See generally Hodges, “Collateral Attacks on Judgments,” 41 Texas L.Rev. 499, 540-41 (1963). Defendant now complains that the Kansas court did not obtain in personam jurisdiction authorizing the revival of the dormant judgment.

Under Kansas law [Kan.Stat.Ann. § 60-2404 ], a dormant judgment may be revived as follows:

. . if, within two (2) years of the date on which such judgment became dormant, the holder thereof files a motion for revivor and a request for the immediate issuance of an execution thereon if such motion is granted. Notice of the filing of the motion shall be given as for a summons under article 3 of this chapter, and on the hearing thereof the court shall enter an order of revivor unless good cause to the contrary be shown, and thereupon the execution shall issue forthwith.”

Notice may be given by publication. Kan. Stat.Ann. § 60-307. Section 60-307(d) requires that the party seeking service by publication or his attorney file an affidavit stating, inter alia, the residences of all named defendants to be served and the names of all defendants whose residences are unknown after reasonable effort to ascertain them, that the party seeking service by publication is unable to procure personal service of summons on such defendants in this state, and that the case is one of those mentioned in § 60-307(a). The statute even provides a form for the affidavit to be filed. Plaintiff’s attorney filed an affidavit that was in compliance with this form. Kan.Stat.Ann. § 60-307(d)(5).

Defendant contends that the revivor judgment should be set aside because the record is silent as to whether plaintiff made a reasonable effort to personally serve him, and suggests that there was fraud in the procedure to obtain service by publication. The trial court found that there was fraud, but it was intrinsic. Defendant claims that plaintiff’s attorney, Frank W. Hursh, knew his address in Texas because he had sent him payments from his Texas address, that he had left his forwarding address with the electric company, telephone company, and water company before leaving Kansas, and that his Texas address was therefore readily ascertainable.

The Supreme Court of Kansas has held that the following principles apply when reviewing service by publication:

“[Ajssuming good faith, the question of jurisdiction must be determined by the statute authorizing publication service, that whether a defendant is a nonresident or not is a question of fact which must be determined by testimony before constructive service can be completed, and the only evidence required by the statute to establish this fact was the prescribed affidavit; that when such an affidavit had been filed, and notice by publication given, and the proceeding had been examined and approved by the trial court, as required by statute, then jurisdiction existed and the judgment rendered is valid.”

American Home Life Ins. Co. v. Heide, 199 Kan. 652, 433 P.2d 454, 459 (1967), citing Davis v. Vinson Land Co., 76 Kan. 27, 90 P. 766 (1907), and authorities therein cited. Plaintiff’s affidavit complied with these statutory requirements.

Defendant, citing Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858 (1967), and Weaver v. Frazee, 219 Kan. 42, 547 P.2d 1005 (1976), contends that if the names and addresses of parties to be served are known or readily ascertainable, notice by publication is not sufficient to satisfy the due process requirements of U.S. Const, amend. XIV or § 2 of the Kansas Bill of Rights. We agree with these decisions; however, they are distinguishable from the case before us. In both Pierce and Weaver, the address of the party served by publication was either known or clearly readily ascertainable. In Pierce, defendant was not notified of a tax foreclosure suit against his property, except by publication, even though he lived on the land being foreclosed upon and his address was on file with the county treasurer. In Weaver, plaintiff was a Colorado resident and, although defendant knew his address, as can be seen in his attorney’s affidavit for constructive service, he was served by publication and was never actually personally notified.

In our case, we do not have any direct evidence, such as in the above suits, that plaintiff knew defendant’s address or that his address was readily ascertainable at the time he filed his motion for revivor. Although defendant testified that his address was known by Mr. Hursh or readily ascertainable, there is some question as to whether Mr. Hursh really knew or had the opportunity to know the address. Defendant testified that he had sent payments by postal money order, which contained his Texas address, to an attorney in Hursh’s law firm but that that attorney, for some reason, no longer worked on the case. Defendant was not sure whether the new attorney, Mr. Hursh, had his address, but he testified: “I would have every reason to believe that he knew it . .” However, he also testified that he did not go to the law firm and leave his Texas address before leaving Kansas. The Kansas court, which listened to plaintiff’s evidence in the revivor suit, found that plaintiff had satisfied all the prerequisites for serving defendant by publication.

Next, defendant contends that personal service cannot be obtained over him by means of service by publication. We are forced to disagree.

The practice relative to the revival of dormant judgments is to be governed by Kansas law. The Supreme Court of Kansas has held that a suit for the revival of a dormant judgment is merely a continuation of the original judgment suit. And, that if the court in the original suit obtained personal jurisdiction over the parties, then it retained jurisdiction in the revivor suit even though a party may have been served by publication in the revivor suit. Hartz v. Fitts, 89 Kan. 751, 132 P. 1187, 1188 (1913); Rice v. Moore, 48 Kan. 590, 30 P. 10, 10 (1892); see Riney v. Riney, 205 Kan. 671, 473 P.2d 77, 82 (1970). The Texas courts have so held also. Sias v. Berly, 245 S.W.2d 503, 507-12 (Tex.Civ.App.—Beaumont 1950), reversed on other grounds, 152 Tex. 176, 255 S.W.2d 505, 508 (1953), noted in 31 Texas L.Rev. 73 (1952); Collin County Nat’l Bank v. Hughes, 154 S.W. 1181, 1183 (Tex. Civ.App.—Dallas 1913), aff’d, 110 Tex. 362, 220 S.W. 767, 768 (1920); cf. Union Nat’l Bank v. Lamb, 337 U.S. 38, 69 S.Ct. 911, 93 L.Ed. 1190 (1949); Owens v. McCloskey, 161 U.S. 642, 16 S.Ct. 693, 40 L.Ed. 837 (1896). See generally Annot., 144 A.L.R. 403 (1943); 46 Am.Jur.2d Judgments § 357, at 536 (1969); 49 C.J.S. Judgments § 543, at 1002 (1947).

This court in Sias, supra (245 S.W.2d at 511-12), held that whether a revivor proceeding is to be treated as a continuation of the original judgment suit depends upon the object accomplished by the proceeding. The court considered whether additional liability was imposed upon defendant or whether “[t]he only object accomplished by the scire facias proceeding was the reactivi-zation of a suspended power to issue writs of execution to collect the revived judgment.”

No additional liability was imposed upon our defendant. The revivor judgment was merely a “reactivization of a suspended power.”

Finding no error, we affirm the judgment of the trial court.

AFFIRMED.

      The applicable subsection in our case is § 60-307(a)(4), which provides that service by publication is permissible:
      “In all actions where the defendant, being a resident of this state, has departed therefrom, or from the county of his or her residence, with the intent to delay or defraud creditors or to avoid the service of a summons, or keeps himself or herself concealed therein with the like intent . .


author: DIES, Chief Justice.

text:
    E. O. FORTENBERRY et al., Appellants, v. Lloyd C. FORTENBERRY et al., Appellees.
    No. 8236.
    Court of Civil Appeals of Texas, Beaumont.
    April 26, 1979.
    Rehearing Denied May 17, 1979.

      O. J. Weber, Beaumont, Wheat & Stafford, Woodville, for appellants.
    Jimmy W. Nettles, Beaumont, Joe R. Smith, Woodville, for appellees.
   DIES, Chief Justice.

This is an appeal from a suit to cancel the will and mineral deed of Miss Mamie Chambless executed on November 19, 1976. Miss Chambless died on December 5, 1976, at the age of eighty-three. A jury found that Miss Chambless lacked testamentary capacity to execute the will and mental capacity to execute the deed. We reverse and remand the cause for a new trial, for the following reasons.

During the trial, contestants (plaintiffs below) attempted to elicit testimony from a handwriting expert that Miss Chambless’s signature to the instruments was forged. The trial court properly excluded this because there was no pleading of forgery by contestants. During the trial, certain checks of Miss Chambless were admitted in evidence. In his final argument, counsel for contestants invited the jury to . . compare that check with that Deed. You folks are not lying and that’s insulting to your intelligence.” The careful trial judge sustained an objection to this argument, but the fact the jury later asked for the checks persuades us the argument suggesting forgery had influence on the jury.

“The true test [for judging an incurable error in a jury argument] 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 instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict.”

Texas Employers’ Insurance Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856, 858 (1954). See also Otis Elevator Co. v. Wood, 436 S.W.2d 324 (Tex.1968).

Contestant’s counsel also gave the following argument:

“Mamie Chambless made it, and I submit to you that this was — the vultures were circling in the air and they swooped down on her.
“Ladies and Gentlemen, that sort of thing has got to stop with grandmothers and grandfathers, with people that are senile, in accordance with what Dr. John says. The word has got to go out from the courtroom. . . . You’ve got to stop it. Whose grandmother is next? Whose aunt is next?”

Referring to the proponents as “vultures” is bad enough, but to suggest to the jury it should find for the contestants to protect their own kin is truly inflammatory and improper. Here again the careful trial judge sustained an objection to the argument, but the harm was already done.

In our adversary system, attorneys must be free to vigorously represent their clients, and it is not an easy thing to decide when that vigor and enthusiasm crosses the bounds of toleration and becomes reversible error.

In determining whether jury argument is so improper that reversal is required, an appellate court must find that the argument is improper and that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the ease. Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 599 (1953); Fulmer v. Thompson, 573 S.W.2d 256, 265 (Tex.Civ.App.—Tyler 1978, writ ref’d n. r. e.).

And, of course, the cumulative effects of improper arguments compound the error. MAPCO, Inc. v. Jenkins, 476 S.W.2d 55 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.). In MAPCO, supra, argument was made that condemnor was a big corporation motivated by profit and that the next condemnation might happen to members of the jury if the condemnees were not fully paid.

It is true, of course, that an attorney’s argument is a deliberate effort to influence a jury for his client’s position. As long as the attorney’s argument has some basis, or at least a reasonable inference, in the evidence and is free from inflammatory remarks, it is proper. But, unless a court trial is to take on the atmosphere of a Roman Circus, counsel must be restrained in the use of inflammatory words. See Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115 (1951).

We believe the argument set forth above was improper and reversible error. We hold that this argument was incurable. See Hernandez v. Baucum, 344 S.W.2d 498 (Tex. Civ.App.—San Antonio 1961, writ ref’d n. r. e.); Houston Lighting & Power Co. v. Fisher, 559 S.W.2d 682 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n. r. e.).

We have reviewed the first six points brought forward by the proponents challenging the legal and factual sufficiency of the evidence to support the jury findings that Miss Chambless lacked testamentary capacity to execute the will and mental capacity to execute the deed. Our review has been under the standards set out in Lucas v. Hartford Accident & Indemnity Co., 552 S.W.2d 796, 797 (Tex.1977); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We find no merit to such contentions, and each of such points is overruled. The cause is remanded to the trial court for a new trial.

REVERSED and REMANDED.


author: McDONALD, Chief Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Ruth DAVIS et al., Appellees.
    No. 6062.
    Court of Civil Appeals of Texas, Waco.
    May 3, 1979.

      James E. Barden and Jerry R. Tucker, Sr., San Antonio, for appellant.
    William O. Whitehurst, Jr., and Mack Kidd, Kidd & Whitehurst, Dicky Grigg, Spi-vey & Grigg, Joseph V. Crawford, Stubbe-man, McRae, Sealy, Laughlin & Browder, Austin, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Southwestern Bell from judgment against it in favor of plaintiff Davis for $21,460.15, and plaintiff DeWitty for $96,717.92, in an automobile collision case.

On April 2, 1977 plaintiffs Davis and DeWitty were proceeding east on 12th Street in Austin, Texas. Mrs. Davis was driving her car, Mrs. DeWitty was a passenger. They were in a funeral procession travelling about 15 miles per hour. Esiquel Mindieta an employee of Southwestern Bell was proceeding north on Pleasant Valley Road towards its intersection with 12th Street. He ran into and collided with plaintiff’s vehicle in the intersection, injuring both plaintiffs.

Pláintiffs filed this suit against Southwestern Bell alleging Mindieta in the course of his employment, was negligent in failing to keep proper lookout and in failing to timely apply his brakes. Defendant answered by general denial and counterclaim alleging plaintiff Davis was negligent in failing to keep proper lookout, failing to timely apply brakes, and in disregarding a red light.

Trial was to a jury which found:

1) Esiquel Mindieta was negligent in his lookout, and in the timely application of his brakes, which was a proximate cause of the occurrence.
2) Ruth Davis was not negligent: in her lookout; in timely application of her brakes; in observing traffic signals; or in the control of her speed.
3) Was conditionally submitted upon a finding of negligence on the part of both parties, inquiring of the comparative negligence of the parties, and was accordingly not answered.
4) Was the damage issue as to plaintiff DeWitty, and found her damages as follows:
A. $3,367.92: past medical care.
B. $5,850.00: past earnings loss.
C. $7,500.00: past pain and mental anguish.
D. $12,500.00: future medical care.
E. $50,000.00: future loss of earnings.
F. $10,000.00: future pain and mental anguish.
5) Was the damage issue as to plaintiff Davis, and found her damages as follows:
A. $2,120.15: past medical care.
B. $1,640.00: past earnings loss.
C. $4,000.00: past pain and mental anguish.
D. $500.00: future medical care.
E. $4,000.00: future loss of earnings.
F. $250.00: future pain and mental anguish.
6) Fixed $1,250.00 as damage to Mrs. Davis’s car.
7) Fixed $200.00 for rental of a car by Mrs. Davis while her car was being repaired.
8) Fixed $681.10 as damage to Southwestern Bell’s vehicle.
9) Found the entrustment of the van to Mindieta by Southwestern Bell was gross negligence.
10) Awarded exemplary damages of: $7,500.00 to Mrs. DeWitty $7,500.00 to Mrs. Davis.

The trial court rendered judgment on the verdict for plaintiff Davis for $21,460.15; and for plaintiff DeWitty for $96,717.92.

Appellant appeals on 16 points contending:

1)There is no evidence and/or insufficient evidence to support the jury’s answer to Issue 1, finding that Min-dieta was negligent in failing to keep a proper lookout, and to timely apply his brakes, and such finding is against the great weight and preponderance of the evidence.
2) There is no evidence and/or insufficient evidence to support the jury’s answer to Issue 2, finding plaintiff Davis not negligent, and such finding is against the great weight and preponderance of the evidence.
3) The trial court erred in permitting expert witness Ruble to testify when the facts were before the jury, and fully available for assessment without testimony of an expert who was not present at the scene of the accident when it occurred.
4) There is no evidence and/or insufficient evidence to support the jury’s answer to Issue 4 finding plaintiff DeWitty’s damages in the total sum of $96,716.42.
5) There is no evidence and/or insufficient evidence to support the jury’s answer to Issue 5 finding plaintiff Davis’s damages in the total sum of $22,-460.15.
6) There is no evidence and/or insufficient evidence to support the jury’s answers to Issues 9 and 10.

Contention 1 complains of the jury’s finding that Southwestern Bell’s driver Mindie-ta was negligent in failing to keep a proper lookout and to timely apply his brakes; contention 2 complains of the jury’s finding plaintiff Davis was not negligent; and contention 3 complains of the trial court’s permitting witness Ruble, an accident reeon-structionist expert, to testify in the case.

There is evidence plaintiffs were travelling at approximately 15 miles per hour; that Mindieta was travelling approximately 25 miles per hour; that plaintiffs were in a funeral procession 10 or 11 cars back from the policeman; that all cars had their lights on; that plaintiffs were a half car length behind the car in front of them; that there were a number of cars behind them in the procession; that Mindieta hit plaintiffs in the intersection; that at the speed of both vehicles, the position of obstructions, the visibility line, the point at which the drivers of both vehicles could see the other driver, was a distance of approximately two and three-fourths second away from the point of impact; that Mindieta could have reacted in three-fourths of a second, and stopped in approximately three-fourths of a second; that he could have stopped the van in 40 feet; that northbound travellers on Pleasant Valley Road could see the intersection through which the funeral procession was proceeding from 350 feet away. This plus the fact that all cars in the funeral procession had their headlights on authorized the jury to infer that Mindieta would have to notice that a funeral procession was going through the intersection.

Mrs. Davis was travelling at fifteen miles per hour one-half car length behind the car ahead of her in the funeral procession. A policeman was leading the procession. There is evidence that at the time the light facing Mindieta turned green, an automobile was just clearing the intersection. Thus, the jury could reasonably infer that Mrs. Davis was partially in the intersection when the light facing her turned red. Moreover, there is a universal custom developed over the years for automobiles to stop to allow a funeral procession to cross an intersection. See: Sundene v. Koppenhoefer, 343 Ill.App. 164, 98 N.E.2d 538.

The witness Ruble, an accident re-constructionist expert, testified extensively as to his qualifications; computed braking distances and times involved, and demonstrated to the jury with mathematical precision that if Mindieta had maintained a proper lookout and timely applied his brakes, the accident would not have happened. The testimony of experts are commonly permitted to testify to such matters as above if within their skill and expertise. Barker v. Dunham, Tex., 551 S.W.2d 41; Texas Law of Evidence, McCormick & Ray, Section 1400, pp. 233, 234 (1956); Lawson v. State of McDonald, Tex.Civ.App. (Waco) NRE, 524 S.W.2d 351; State Highway Dept. v. Hinson, Tex.Civ.App. (Corpus Christi) NRE, 517 S.W.2d 308; Pappas v. Estate of Laughlin, Tex.Civ.App. (Beaumont) NRE, 552 S.W.2d 525; McIlroy v. Wagley, Tex.Civ.App. (Corpus Christi) NRE, 437 S.W.2d 5; Pace v. Gutierrez, Tex. Civ.App. (Amarillo) NRE, 492 S.W.2d 356.

And defendant did not object to witness Ruble’s testimony thereby waiving such point. Champion Mobile Homes v. Rasmussen, Tex.Civ.App. (Tyler) NRE, 553 S.W.2d 237; Battles v. Adams, Tex.Civ.App. (Austin) NRE, 415 S.W.2d 479.

Contentions 1, 2 and 3 are overruled.

Contentions 4 and 5 assert there is no evidence or insufficient evidence to support the jury’s award to Mrs. DeWitty of $96,-716.42, and to Mrs. Davis of $22,460.15.

Defendant specifically attacks findings: 4 D which awarded Mrs. DeWitty $12,500.00 for future medical care; 4 E which awarded Mrs. DeWitty $50,000.00 future loss of earnings; 5 D which awarded Mrs. Davis $500.00 future medical care; and 5 E which awarded Mrs. Davis $4,000.00 future loss of earnings. Defendant further complains of the testimony of the witness Dr. Hanson, a vocational rehabilitation expert, who testified extensively over objection, as to loss of earnings by Mrs. DeWitty in the future.

Mrs. DeWitty was 67 years old. Her work experience includes 22 years teaching music in the Austin public schools, production of a radio program of songs, and spirituals for 6 years; organizing and directing choral concerts involving 1400-1500 persons for State and National Baptist Conventions; lecturing, playing for weddings, teas and funerals, and writing and publishing songs and music. At the time of the accident she was earning some $10,500.00 per year from her music at Ebenezer Baptist Church, State and National conventions, weddings, teas, funerals and her hymnbook sales. She has lost $5,850.00 from the date of the accident to the time of trial. She sustained injuries to her right hand, shoulder, hip, knee and neck. As a result she has developed traumatic arthritis in her right hand which affects playing of the organ and piano. She has developed a progressive deformity of her right hand. She suffers pain and limitations which will intensify with time; she has active synovitis in her index and long metacarpophalangeal joint of her right hand which is permanent; arthritic changes in her hip and knee which are permanent, and will result in increased pain and disability as time goes by. Since the accident she has been unable to maintain her former life. She has a life expectancy of between 10 and 14.9 years. There is evidence from which the jury could conclude that she is or in the near future will be rendered totally disabled from a vocational standpoint.

Mrs. DeWitty had $3,367.92 in medical expenses prior to trial. There is evidence that she should continue therapy and medical treatment and that she may need an operation. Appellant in its brief concedes that there is evidence to support some $6,600.00 in future medical expenses.

The award of future medical expenses is a matter about which no precise evidence is required, it being a matter particularly for the jury, and one upon which the jury may make its award based on the nature of the injuries, the medical care rendered before trial, and the condition of the injured party. City of Houston v. Moore, Tex.Civ.App. (Houston 1) NRE, 389 S.W.2d 545; Southwestern Bell Telephone Company v. Thomas, Tex.Civ.App. (Corpus Christi) 535 S.W.2d 686, Aff’d in part, reversed in part on other grounds, Tex., 554 S.W.2d 672.

Mrs. Davis was 57 years old. She is a musician who plays for her church, and for funerals and weddings. She lost $1,640.00 earnings from date of the accident to time of trial. She has a life expectancy of 21.3 years. She is still suffering from her injuries and particularly her right wrist and has not been able to perform her piano playing duties as much as prior to the accident; she does not feel well. She has past medical expenses of $2,120.15 resulting from her injuries sustained in the accident; and is having physical problems which affect her whole outlook on life.

Contentions 4 and 5 are overruled.

Contention 6 asserts there is no evidence or insufficient evidence to support the jury’s answers to Issues 9 and 10.

Issue 9 found the entrustment of the van to Mindieta by Southwestern Bell was gross negligence, and Issue 10 awards $7,500.00 each exemplary damages to both plaintiffs.

The evidence is that Southwestern Bell hired Mindieta without inquiring or checking into his driving record; that he had his driver’s license suspended two years prior to employment by Southwestern Bell for 6 months as a habitual violator of the traffic laws; that he was convicted after employment by Southwestern Bell for 4 traffic violations which involved 2 accidents; that he had a valid driver’s license when employed by Southwestern Bell, that Southwestern Bell did not have any actual knowledge of his driving record. The foregoing evidence would amply sustain a finding of ordinary negligence for the entrustment of the vehicle to Mindieta. Union Transports, Inc. v. Braun, Tex.Civ.App. (Eastland) NWH, 318 S.W.2d 927; Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587; Hines v. Nelson, Tex.Civ.App. (Tyler) NWH, 547 S.W.2d 378.

But same will not sustain a finding of gross negligence. Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709; Abercrombie Co. v. Scott, Tex.Civ.App. (Galveston) NRE, 267 S.W.2d 206; Atlas Chemical Industries, Inc. v. Anderson, Tex., 524 S.W.2d 681.

Such cases hold that negligence or the want of ordinary care will not expose the actor to exemplary damages; but that instead it is settled that there must be a showing of “gross negligence” in order to obtain exemplary damages in a negligence case; and that “gross negligence, to be ground for exemplary damages, should be the entire want of care which would poise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it”.

From the record it does not appear Southwestern Bell was consciously indifferent to the rights or welfare of plaintiffs, but that the negligent entrustment was ordinary negligence only. Contention 6 is sustained.

The judgment is accordingly reformed to delete $7,500.00 from the recovery of each of the plaintiffs.

Additionally from the record we are of the opinion that the judgment as to plaintiff DeWitty is further excessive in the sum of $15,000.00 and that the judgment as to her should be reversed for this reason only. Appellee DeWitty is given 10 days from this date to file a remittitur of $15,-000.00, Rule 440 TRCP. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835; World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962; Caswell v. Satterwhite, Tex.Civ.App. (Waco) NRE, 277 S.W.2d 237; Big Town Nursing Home v. Newman, Tex.Civ.App. (Waco) NWH, 461 S.W.2d 195. If such remittitur is filed within 10 days the judgment of the trial court will be reformed and affirmed as to appellee DeWitty.

The judgment is severed and Reformed and Affirmed in the amount of $13,960.15, as to appellee Davis.

Reversed and Remanded as to appellee DeWitty.

OPINION AFTER FILING REMITTITUR

Appellee DeWitty having filed remittitur of $15,000. as suggested by this Court, the judgment of the trial court is reformed in conformity with such remittitur and is affirmed in the amount of $74,217.92.

Costs of appeal taxed ⅛ against appellee Davis; Ve against appellee DeWitty; and ⅜ against appellant.