author: MOORE, Justice.

text:
    Jose SENDEJAR, Sr., et al., Appellants, v. ALICE PHYSICIANS AND SURGEONS HOSPITAL, INC., et al., Appellees.
    No. 1009.
    Court of Civil Appeals of Texas, Tyler.
    June 30, 1977.
    Rehearing Denied Aug. 11, 1977.

      Francis I. Gandy, Jr., Corpus Christi, Sam M. Yates, Jr., Houston, Robert R. Mullen, Jr., Alice, for appellants.
    Cecil D. Redford, Dyer, Redford, Bur-nette, Wray & Woolsey, Ben A. Donnell, Meredith & Donnell, Corpus Christi, for ap-pellees.
   MOORE, Justice.

This is a medical malpractice case. Appellant, Jose Sendejar, Sr., individually and as next friend of his son, Jose Sendejar, Jr., (appellant), instituted suit against appel-lees, Alice Physicians and Surgeons Hospital, Inc., and Dr. D. R. Halverson, alleging that as a result of the negligent acts and omissions on the part of the hospital and the doctor occurring after Jose Sendejar, Jr., was admitted to the hospital, his son suffered permanent injuries to his spinal cord resulting in complete and total paralysis from his chest down to his lower extremities. Appellees denied generally the allegations of the petition and affirmatively alleged that the paralysis suffered by Jose Sendejar, Jr., was proximately caused by his own contributory negligence in overturning and wrecking his automobile shortly before he was hospitalized and treated by Dr. Halverson. Trial was before a jury. The jury found in response to the special issues that (1) the hospital was negligent in failing to exercise the proper standard of care in rendering hospital services to Jose Sendejar, Jr.; (2) such failure was not a proximate cause of the patient’s paraplegia; (3) Dr. D. R. Halverson did not fail to exercise the proper standard of care in the treatment of Jose Sendejar, Jr.; (4) Jose Sendejar, Jr., failed to exercise ordinary care in the operation of his automobile shortly prior to the time of his hospitalization; (5) such failure was a proximate cause of his paraplegia; (6) his paraplegia was caused solely by the injuries received by him at the time of the automobile accident; and (7) neither the treatment rendered by Dr. Halverson nor the hospital aggravated his pre-existing condition or caused him to incur any past, present or future medical expenses or any compensatory damages. Pursuant to the jury’s verdict, the trial court entered a take-nothing judgment against appellant. After his motion for new trial was overruled, appellant perfected this appeal.

We affirm.

Under the eleventh point, appellant contends that the “negative” finding of the jury in response to Special Issue No. 2 wherein the jury refused to find that the hospital’s negligence was a proximate cause of the paraplegia suffered by appellant’s son is against the overwhelming weight and preponderance of the evidence. Under the twelfth point appellant likewise contends that the jury’s “negative” finding to Special Issue No. 3 wherein the jury refused to find that Dr. D. R. Halverson was negligent in treating Jose Sendejar, Jr., is against the overwhelming weight and preponderance of the evidence. Appellant does not attack the judgment on the ground that there is “no evidence” to support the jury’s findings.

In determining the question of factual insufficiency of evidence points, we are required to consider all the evidence in the entire record, both that in favor of, as well as that against the judgment. Garza v. Alviar, 395 S.W.2d 821 (1965).

The record reveals that Jose Sendejar, Jr., age 20, was involved in a one automobile accident near Benavides, Texas, on May 21, 1971, at approximately 8:00 p. m. At the time of the accident he was driving approximately 70 m.p.h. when his automobile left the road and overturned twice. He was thrown from the automobile and found about eight paces away. The evidence shows that Sendejar had been drinking at the time of the accident. The ambulance driver who picked him up observed no movement of any part of his body except that he was able to move his head. He was taken to the hospital where he was admitted to the emergency room at approximately 10:10 p. m.

The doctor on duty in the emergency room at the time Sendejar arrived at the hospital was Dr. D. R. Halverson. At the time he was admitted to the hospital Sende-jar was in a semi-stuporous, combative and non-cooperative condition which was enhanced possibly because he had been drinking. Dr. Halverson testified that such condition rendered his examination very difficult because there was no specific complaint of pain. He testified that he made a complete physical examination, including the taking of x-rays, and was unable to find anything wrong except that the patient had some abrasions and was suffering from a concussion. He testified upon examination that all neurological reflexes in the lower extremities appeared to be normal but that he did not observe the patient moving his legs while he was in the emergency room. He testified that after examining the x-rays he saw nothing abnormal in the spine or spinal cord and there was no sign of paraplegia. After the emergency room examination Sendejar was admitted by Dr. Halverson to the hospital “to the service of” Dr. J. C. Gonzales, his family physician, at approximately 11:30 p. m. Dr. Halverson gave instructions that his bed be elevated thirty degrees, that he be aroused every two to three hours, and that he have bathroom privileges the following morning.

The expert medical testimony shows that once an emergency room doctor admits a patient to the hospital, he has no further responsibility toward the patient whatsoever. While it is without dispute that Dr. Halverson did not notify the patient’s family physician, the undisputed evidence shows that the emergency room doctor is not required to notify the admitting physician at the time the patient leaves the emergency room and is admitted into the hospital.

It is undisputed that neither Dr. J. C. Gonzales, the family doctor, nor any other physician saw Sendejar from the time he left the emergency room on Saturday evening, May 15, 1971, until Monday morning, May 17, 1971. During that time he was attended regularly by hospital nurses approximately every two hours. Being unable to contact Dr. J. C. Gonzales, the nurses called Dr. Halverson who was still on duty in the emergency room and advised him that Sendejar was complaining of back pains and that he had not seen a physician since the time he had been admitted and that they felt he really needed to see a physician. Dr. Halverson prescribed a sedative but did not go to the patient’s room. One of the nurses on duty testified that on Sunday afternoon she noticed that the patient’s lower extremities did not respond to verbal command. According to the hospital records, however, the first time the nurses discovered that Sendejar was suffering from paralysis was at 8:00 p. m. Sunday evening when it was noted that the patient did not appear to be able to move his lower extremities.

According to the rules promulgated by the hospital staff, if a patient was in need of a doctor, it was the duty of the floor nurse to call the admitting physician. If the admitting physician could not be located it was the nurse’s duty to call the physician covering for him, and if he could not be found, it was the nurse’s duty to call the staff physician who was on call for that week. There is no evidence that the floor nurse attempted to contact any of these physicians except Dr. J. C. Gonzales. When Dr. J. C. Gonzales was finally contacted on Monday morning, May 17th, he advised that he could not see the patient but that he would send Dr. Dostal. After Dr. Dostal arrived and upon examination found Sende-jar to be suffering from flaccid paralysis from the waist down due to a spinal cord injury, Dr. Dostal then directed that the patient be transferred to Memorial Hospital in Corpus Christi, Texas, where he would be treated by Dr. Rufino Gonzales.

Emma Cavazos, Sendejar’s aunt, testified that she visited him from Sunday, May 16th, until Monday morning when he was transferred to Corpus Christi. She testified that on several occasions she requested the nurses to get a doctor and was told that Dr. J. C. Gonzales was not available. She testified that in spite of her many requests for the nurses to get another doctor, no doctor came until Dr. Dostal arrived at approximately 8:00 o’clock Monday morning. She also testified that on Sunday she observed Sendejar to move his legs and kick the sheet from his legs when he complained of being too warm. Other friends who visited him on Sunday afternoon also testified that they also saw him move his legs and observed him to kick off the covers.

Dr. A. E. Minyard, an orthopedic surgeon called by appellant, testified in response to a hypothetical question that Sendejar suffered a fracture of the fourth dorsal vertebra as a result of the automobile accident and that in his opinion Sendejar was not paralyzed when he was admitted to the hospital but was paralyzed when he was transferred from the hospital on the following Monday. He testified that in his opinion the paralysis commenced on Sunday and was caused by injuries to the soft tissues and the swelling and bleeding in the spinal cord. He testified that the paralysis came on gradually and that the function of the spinal cord was lost in increments. He further testified that the fact that Sendejar had some movement in his legs when he was admitted to the emergency room was an indication that the spinal cord had not been completely severed. He testified that with proper medical attention, total paraplegia could have been prevented or at least could have been partially prevented and that the failure to receive proper medical care was, in his opinion, the producing cause of the paraplegia. He admitted that the injury was difficult to detect on the x-ray picture taken by Dr. Halverson and that neither he nor Dr. Halverson would have detected the injury in the absence of a complaint of back pain by the patient.

Dr. Craig Norstrom and Dr. Joseph G. Klotz, both neurosurgeons, testified that they saw Sendejar after he arrived at Memorial Hospital in Corpus Christi. They testified that as a result of x-ray studies, they were of the opinion that Sendejar’s spinal cord was severely crushed and severed at the time of the automobile accident and that such injuries caused immediate paralysis at that time. They testified that in their opinion he was paralyzed at the time he reached the emergency room at the hospital and that the type of medical treatment he received thereafter would not have made any difference whatsoever because he would have still been paralyzed. Thus, according to their testimony Sendejar’s paraplegia occurred at the split second he received the injury in the automobile accident. They explained that the movement in his legs after being admitted to the hospital was due to flexor spasms which was a natural phenomenon following paraplegia.

Dr. Rufino Gonzales, an orthopedist, testified that as a result of his x-ray studies he found that Sendejar had received a severe injury to his spinal cord in the automobile accident and that the nature of the injury to his spinal cord would ordinarily result in death. He testified that the injury received in the automobile accident made paraplegia inevitable and, in his opinion, even if surgery had been performed at 8:00 a. m. Sunday morning that the patient would have still been paralyzed as a result of the injuries to his spinal cord caused by the automobile accident.

All medical witnesses agreed that the spinal injury was not readily detectable on the x-ray picture taken by Dr. Halverson and that any physician situated as Dr. Halver-son had been at that time would not be expected to detect the injury from reading the x-ray pictures especially in view of the fact that the patient did not complain of back pains. All medical witnesses who testified on the subject testified that Dr. Hal-verson did all that he could have done under the circumstances. There was no medical testimony that Dr. Halverson failed to exercise the proper standard of care in his examination and treatment of the patient.

After weighing and balancing all of the foregoing testimony, as well as all of the evidence in the record, we find that we cannot agree with appellant’s contention that the findings to Special Issues Nos. 2 and 3 are against the overwhelming weight and preponderance of the evidence. Points eleven and twelve are therefore overruled.

Special Issues 1 through 3 constitute the only primary negligence issues relied on by appellant to establish a cause of action against appellees. Having failed to obtain favorable findings on the primary negligence issues, it follows that appellant failed to establish a cause of action against either the hospital or Dr. Halverson and the judgment must be sustained unless reversible error is raised by the remaining points of error.

Under the first through tenth points of error the appellant contends that the trial court erred in permitting the appellees to plead, prove and submit to the jury the defense of contributory negligence. In response to Special Issues Nos. 5 and 6, the jury found that Jose Sendejar, Jr., failed to use ordinary care in the operation of his automobile and that such failure was a proximate cause of his injury. Appellant argues that under the facts presented here the defense of contributory negligence should not have been submitted to the jury because the negligence of Sendejar in sustaining a previous injury would not constitute a defense to his claim for malpractice. We agree with this contention.

To constitute a bar to a suit for malpractice, the contributory negligence of the patient must have been an active and efficient contributing cause of the injury made the basis of the patient’s claim; it must have been simultaneous and co-operating with the alleged fault of the defendant, must have entered into the creation of the cause of action and must have been an element in the transaction which constituted it. Lee v. Moore, 162 S.W. 437 (Tex.Civ.App.—Dallas 1913) rev’d on other grounds, 109 Tex. 391, 211 S.W. 214 (1919); see 61 Am.Jur.2d Physicians and Surgeons, etc., sec. 108; see also 50 A.L.R.2d 1043.

In the instant case there is nothing to suggest that Sendejar was guilty of any type of negligence occurring simultaneously with or co-operating with the alleged fault of the appellees. Furthermore, there is nothing in the evidence to suggest that after being admitted to the emergency room of the hospital, Sendejar committed any negligent act which could be construed as a contributing cause to his claim for malpractice asserted against the appellees. Consequently, under the facts here the defense of contributory negligence was not applicable and should not have been submitted to the jury.

This brings us to the question of whether appellant suffered harm as a result of the submission of such issues to the jury. It has long been the rule in this state that where the jury answers all issues relating to primary negligence in favor of the defendants, as here, any error in the manner in submitting issues as to the contributory negligence of the plaintiff is immaterial. In the instant case, no other judgment than the one in favor of the appellees could have been rendered by the trial court on the verdict and the error of which the appellees complain was therefore immaterial and harmless. Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339, 342 (1944); Hammon v. Texas & N. O. Ry., 382 S.W.2d 155 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.); Smith v. Morgan, 235 S.W.2d 938 (Tex.Civ.App.—San Antonio 1950, writ dism’d). Appellant’s points one through ten are overruled.

Under points fourteen through seventeen appellant urges that the trial court erred in entering judgment based on the jury’s findings to Special Issues Nos. 11,12,13 and 14 wherein the jury found that the appellant sustained no damages. The basis of appellant’s attack on the judgment in this regard is that the findings of the jury that the appellant suffered no damages are against the great weight and preponderance of the evidence.

The question of damages was submitted to the jury by four special issues covering past and future medical expenses as well as compensatory damages. Following each issue, the court instructed the jury as follows:

“Do not include any amount for any condition existing before the hospitalization of Jose Sendejar, Jr., on May 15, 1971, except to the extent that you find from a preponderance of the evidence that such condition was aggravated by the defendants, or either of them, if you have so found.”

Under the foregoing instruction given by the court, we cannot agree with appellant’s contention that the finding of “no damages” is contrary to the overwhelming weight and preponderance of the evidence. However, even if we so found, this would not call for a reversal of the judgment because of the findings by the jury that neither of the appellees was guilty of negligence proximately causing Sende-jar’s paraplegia. In view of those findings the jury’s answers to the damage issues were rendered immaterial and as such would not show prejudicial harm. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (1939); Seeley v. Eaton, 506 S.W.2d 719 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.); Martin v. Crow, 372 S.W.2d 724 (Tex.Civ.App.—Texarkana 1963, no writ).

Appellant next contends that the trial court erred in excusing certain jurors who, prior to trial, had rendered excuses to the Sheriff, District Clerk and other officials in violation of Article 2120, Tex.Rev.Civ.Stat. Ann.

The record reveals that prior to trial appellant was furnished a list showing that 44 jurors out of a panel of approximately 200 had been excused prior to the trial and were not present in the courtroom at that time. Appellant made no complaint prior to trial and complained for the first time in his motion for new trial.

Under the statute regulating excuses of jurors, neither the District Clerk, Sheriff nor any other official is authorized to excuse jurors. Such power is conferred solely upon the court. To force a litigant, over his objection, to proceed to trial where prospective jurors have been excused contrary to the statute would no doubt constitute reversible error. Texas & N. O. Ry. v. Jacks, 306 S.W.2d 790 (Tex.Civ.App.—Beaumont 1957, writ ref’d n. r. e.); Ulmer v. Mackey, 242 S.W.2d 679 (Tex.Civ.App.—Forth Worth, 1951, writ ref’d n. r. e.). In order for the error to constitute reversible error, however, appellant had a duty to register some complaint prior to the time that the jury was selected. Having registered no objection and having filed no motion to quash the jury panel, we think appellant waived his right to complain. Rule 434, Tex.R.Civ.P.; Hartford Accident & Indem. Co. v. Haddock, 511 S.W.2d 102 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.); Texas & N. O. Ry. v. Jacks, supra. Appellant’s eighteenth and nineteenth points are overruled.

In his twentieth and twenty-first points appellant contends that the trial court erred in submitting Special Issue No. 10 to the jury because said issue was an inferential rebuttal issue which was not properly submitted under Rule 277 of the Texas Rules of Civil Procedure. By this issue the jury was requested to find whether the paraplegia of Jose Sendejar, Jr., and the injuries and damages resulting therefrom were solely caused by the injuries received by him at the time of the automobile accident. The jury found “They were.”

“Sole cause” and “sole proximate cause” issues constitute inferential rebuttal issues, and as such are no longer submitted to the jury. McCane Sondock Detective Agency v. Penland Distributors, Inc., 523 S.W.2d 62 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ history). Rule 277, supra, specifically provides “Inferential rebuttal issues shall not be submitted.” The issue should not have been submitted. Thus, the question becomes whether the submission of the issue resulted in harm to appellant. Rule 434, supra. We have concluded that it did not. Appellant argues that, since the undisputed testimony shows that the jury answered Special Issue No. 10 before refusing to find that the negligence of the hospital was a proximate cause of Sendejar’s paraplegia (Special Issue No. 2), the giving of Special Issue No. 10, together with the instructions given in connection therewith, caused the jury to believe that a negative answer to Special Issue No. 2 was required in order to make the two causation findings consistent. We cannot agree with this reasoning.

No juror testified that Special Issue No. 2 was answered in the negative solely for the purpose of consistency. To hold that the jury probably arrived at a negative answer to Special Issue No. 2 because they probably believed that if they did not do so, then their answer would conflict with their answer to Special Issue No. 10, would be highly speculative and unwarranted. The jury was at liberty to answer Special Issue No. 2 either in the affirmative or in the negative based on what they found the facts to be even though it would result in a conflict. In the absence of any showing that the jury made a negative finding on Special Issue No. 2 for some ulterior reason, we must assume that the jury followed the court’s instruction and based its answer solely on the evidence.

In any event, since the controlling special issues relating to appellees’ alleged primary negligence and liability were answered by the jury in favor of appellees, any error in the manner of submitting other special issues and definitions, such as those of which appellant complains herein, becomes immaterial and harmless. Brown & Root v. Haddad, supra; Henry v. American Airlines, Inc., 413 S.W.2d 123, 128-129 (Tex.Civ.App.—Eastland 1967, no writ). After a careful review of the entire record, we do not believe that the submission of Special Issue No. 10, even though improper, was calculated to cause and probably did cause a rendition of an improper judgment. Rule 434, supra.

Matters relating to jury misconduct are made the basis of points twenty-two through twenty-six. The misconduct complained of consists of statements made by the jurors during jury deliberation. Upon the hearing on the motion for new trial, it was shown that some of the jurors made the following statements: (1) this type of case against hospitals causes insurance rates to go up; (2) if hospitals and doctors were sued by everyone then there would be no hospitals or doctors when needed; and (3) that this type of case against hospitals makes our hospital rates go up.

The undisputed evidence shows that none of the foregoing statements were made prior to the time the jury answered Special Issue No. 3 in which the jury refused to find negligence on the part of Dr. Halverson. Therefore, since the alleged misconduct occurred after Dr. Halverson had been exonerated from liability, we fail to see how any harm could have resulted to appellant by reason of such alleged misconduct insofar as it relates to the cause of action alleged against Dr. Halverson. The point in time during jury deliberations at which misconduct occurs is an important factor in determining the probability of harm. Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969); Mrs. Baird’s Bread Co. v. Hearn, 157 Tex. 159, 300 S.W.2d 646 (1957). Consequently, we hold that the alleged misconduct could not have had any effect on the jury’s answer to Special Issue No. 3 and therefore no harm could have resulted to the appellant with respect to his cause of action against Dr. Halverson.

With regard to the hospital, the record shows that the jury experienced difficulty in answering Special Issue No. 1. The jury then answered other issues before returning to Special Issue No. 1. The evidence shows that the alleged misconduct occurred before the jury had answered Special Issues Nos. 1 and 2 relating to whether the hospital was negligent and whether such negligence was a proximate cause of Sendejar’s paraplegia. Since Special Issue No. 1 was answered in appellant’s favor, no harm could have resulted to appellant with regard to that issue. Consequently the only issue to which the alleged misconduct could have possibly been harmful was the proximate cause issue.

Appellant argues that the statements made during the jury’s deliberation were calculated to prejudice the jury against all malpractice suits. Therefore, he argues that the statements probably caused the the jury to answer the proximate cause issue against him solely because they were prejudiced against malpractice claims. We are not in accord with this contention. Had the jury been motivated by prejudice against malpractice suits, as appellant contends, it occurs to us that the jury would have also answered the negligence issue adversely to the appellant. Since the jury answered the negligence issue in appellant’s favor but answered the proximate cause issue in the hospital’s favor, we think the more logical deduction would be that the jury made a good-faith effort to answer each issue according to the evidence. The causation issue was sharply contested and the jury was well aware of this fact. According to the testimony adduced on the hearing for new trial, the remarks complained of were briefly mentioned by only one or two jurors. The foreman testified there was no prolonged discussion of any of the remarks. None of the remarks appear to have had any direct relationship to the issue of causation and for this reason it is difficult to understand how they could have influenced the jury in answering the issue. In view of the fact that the jury answered the negligence issue in favor of appellant, it is difficult to believe that the jury’s adverse finding on the proximate cause issue was reached solely because of the jury’s prejudice against the appellant’s claim.

Whether the alleged jury misconduct probably resulted in harm to the complaining party is a question of law for the reviewing court after considering the record as a whole. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943); Lackey v. Moffett, 172 S.W.2d 715 (Tex.Civ.App.—Fort Worth 1943, no writ).

To say that the alleged jury misconduct in this instance probably caused the rendition of an improper judgment, we would first be compelled to conclude from the record as a whole that but for the alleged misconduct the jury would probably have answered the proximate cause issue in such a fashion as to impose liability on the hospital. It is not enough to say that the jury might possibly have done so. Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277 (1958); Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596, 600 (1953). After a careful review of the entire record, we do not believe we would be justified in concluding that but for the alleged jury misconduct the jury would have probably answered the issue in a manner favorable to appellant. Rule 434, supra.

Appellant further contends that jury misconduct was established because it was brought out during the deliberations that Sendejar had been drinking at the time of the automobile accident and also that Dr. J. C. Gonzales should have been sued rather than Dr. Halverson and the hospital. There is some indication in the record that Dr. J. C. Gonzales should have been available to treat the patient or should have notified the hospital as to which doctor would cover for him. Also there is evidence that Sendejar, Jr., had been drinking. It is not error for the jury to discuss the evidence and reasonable deductions therefrom. International-Great Northern R. R. v. Smith, 269 S.W. 886 (Tex.Civ.App.—San Antonio 1925, writ dism’d). Points twenty-two through twenty-six are overruled.

While the trial court probably committed several errors in the course of the lengthy trial, we do not believe such erroneous rulings were of such gravity that any of them, either singularly or collectively, were calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, supra. Appellant’s points twenty-seven and twenty-eight are overruled.

Finding no reversible error the judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

On Motion for Rehearing counsel for appellant challenges our original opinion wherein we stated he was furnished a jury list showing that 44 jurors out of the panel of 200 had been excused. After a review of the supplemental transcripts subsequently filed by the parties, it now appears that although appellant’s counsel was furnished a list of the 200 jurors, the list did not indicate that any of the jurors had been previously excused. It appears that the excused jurors were shown on the juror’s time book kept by the District Clerk which list was used by him in calling the names of the jurors prior to voir dire examination. The record reveals that when the District Clerk called his list he did not call the names of the 44 jurors who had been previously excused. It thus appears that even though counsel did not have a list showing the excused jurors, he knew or should have known that 44 jurors were absent and unaccounted for and he made no complaint thereof.

With this explanation, we adhere to our previous ruling holding that appellant waived his right to complain. In any event the error, if any, could not have resulted in any harm to appellant in the absence of a showing by him that he was compelled to try his case before an objectionable juror. Rule 434, supra; Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex.1964); City of Hawkins, v. E. B. Germany and Sons, 425 S.W.2d 23 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.). Accordingly the Motion for Rehearing is overruled.

      . “ISSUE NO. 1:
      Do you find from a preponderance of the evidence that Alice P&S Hospital, acting by and through its nursing or administrative employees, in rendering care to Jose Sendejar, Jr., during his hospitalization from 11:30 PM May 15, 1971, to 9:00 AM, May 17, 1971, failed to exercise that standard of care which would have been exercised by a hospital of the same or similar size located in the same or similar community and under the same or similar circumstances?
      ANSWER: It did fail.”
      “ISSUE NO. 2:
      Do you find from a preponderance of the evidence that such failure of Alice P&S Hospital was a proximate cause of the paraplegia of Jose Sendejar, Jr., and the injuries and damages resulting therefrom?
      ANSWER: It was not.”

      . “ISSUE NO. 3:
      Do you find from a preponderance of the evidence that in his care of Jose Sendejar, Jr., Dr. Darrell Halverson failed to exercise that standard of care which would have been exercised by a reasonably prudent physician in Alice, Texas, or in a community of the same or similar size, under the same or similar circumstances?
      ANSWER: He did not fail.”

      . “ISSUE NO. 10:
      Do you find from a preponderance of the evidence that the paraplegia of Jose Sendejar, Jr., and the injuries and damages resulting therefrom was solely caused by the injuries received by him at the time of the automobile accident which he had on May 15, 1971?
      ANSWER: They were.”


source: Caselaw Access Project

author: DIES, Chief Justice.

license: Public Domain

text:
    Malvern STERLING, a widow, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appllee.
    No. 8011.
    Court of Civil Appeals of Texas, Beaumont.
    July 28, 1977.
    Rehearing Denied Aug. 29, 1977.

      Sid S. Stover, Jasper, for appellant.
    Paul W. Gertz, Beaumont, for appellee.
   DIES, Chief Justice.

In 1975 Albert Sterling was instantly killed while operating one of his two automobiles. Both vehicles were covered by a policy of United States Fidelity and Guaranty Company, defendant below, which contained a personal injury protection endorsement. Defendant paid Sterling’s widow— plaintiff below — $2,030 for funeral expenses but refused to pay for loss of income sustained by Sterling which occasioned this suit. Trial was to the court without a jury, who gave defendant (insurer) judgment from which Sterling’s widow, plaintiff below, appeals.

Tex.Ins.Code Ann. art. 5.06-3(b) (Pamp. Supp.1975-1976) defines “Personal Injury Protection” as:

“consists of provisions of a motor vehicle liability policy which provide-for payment to the named insured in the motor vehicle liability policy and members of the insured’s household, any authorized operator or passenger of the named insured’s motor vehicle including a guest occupant, up to an amount of $2,500 for each such person for payment of all reasonable expenses arising from the accident and incurred within three years from the date thereof for necessary medical, surgical, X-ray, and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services, and in the case of an income producer, payment of benefits for loss of income as the result of the accident; and where the person injured in the accident was not an income or wage producer at the time of the accident, payments of benefits must be made in the reimbursement of necessary and reasonable expenses incurred for essential services ordinarily performed by the injured person for care and maintenance of the family or family household. The insurer providing loss of income benefits may require, as a condition of receiving such benefits, that the insured person furnish the insurer reasonable medical proof of his injury causing loss of income. The personal injury protection in this paragraph specified shall not exceed $2,500 for all benefits, in the aggregate, for each person.” (Emphasis supplied)

The policy involved here (approved by the Insurance Commission) provided that benefits' paid insured (Sterling) for loss of income as a result of an accident would be while living. Plaintiff argues the addition of this phrase to the coverage afforded by the statute above set out, narrows the coverage and is void, citing Berry v. Dairyland Cty. Mut. Ins. Co. of Texas, 534 S.W.2d 428 (Tex.Civ.App.—Fort Worth 1976, no writ), and American Liberty Insurance Company v. Ranzau, 481 S.W.2d 793 (Tex.1972).

These decisions stand for the proposition that, when the statute provides its requirements are to be accomplished under provisions prescribed by the Insurance Board, it (the Board) may not act contrary to, but only consistent with, and in furtherance of the expressed statutory purposes.

We believe that the Board’s approval of the inclusion of the words “while living” in the policy is not inconsistent with the statute. It is apparent that the Legislature intended to provide funeral expenses if death results from an accident and loss of income, hospital and professional nursing expenses, etc., if disability results. We overrule plaintiff’s point. Thus, it is unnecessary for us to decide if the benefits provided on the two cars could be “stacked”. The judgment of the trial court is affirmed.

AFFIRMED.


author: KEITH, Justice.

text:
    James M. SMITH et ux., Appellants, v. CENTRAL MUTUAL INSURANCE COMPANY, Appellee.
    No. 7965.
    Court of Civil Appeals of Texas.
    July 28, 1977.
    Tom J. Swearingen, Port Arthur, for appellants.
    Roger S. McCabe, Beaumont, for appel-lee.
   KEITH, Justice.

In this uninsured motorist’s case, plaintiffs appeal from a take nothing judgment rendered upon the insurer’s motion for judgment non obstante veredicto. We affirm for the reasons now to be stated.

Mrs. Smith was operating the family car in a westerly direction on Gulfway Drive in Port Arthur when she turned left in the middle of the block across a double yellow stripe on the pavement. She was struck by an automobile owned by Ora Mitchell and driven by her son, Byron Mitchell. At, and immediately prior to the collision, another car driven by Edward Harriell, III, was also traveling east on Gulfway Drive parallel to Mitchell’s vehicle. Harriell’s vehicle did not come in contact with either the Smith or Mitchell vehicles.

Plaintiffs sued Mitchell contending that he was guilty of various acts of negligence proximately causing the collision. They also sued Central Mutual Insurance Company alleging that their vehicle was covered by a liability policy issued by Central Mutual which contained an uninsured motorist clause; that the vehicle driven by Harriell was uninsured and that Harriell was guilty of various acts of negligence proximately causing her injuries and damages.

Subsequently, plaintiffs settled with the carrier for Mitchell receiving $9,000 for the execution of the release of liability as to Mitchell but reserving their rights against Central Mutual. A final judgment was then prepared severing plaintiffs’ cause of action against the Mitchells from that against Central Mutual. This settlement was accomplished without the written consent of Central Mutual.

The insurer then immediately filed its amended answer setting up the policy defense that the settlement by the plaintiffs without Central’s consent was in violation of the policy provisions and barred any recovery against Central Mutual. Plaintiffs filed no responsive pleadings and went to trial on their original petition.

In a trial to the jury, Harriell was found guilty of several acts of negligence proximately causing the collision: driving at an excessive rate of speed; engaging in a contest of speed with Mitchell immediately pri- or to the collision; and swerving his automobile back and forth across the street. The jury also convicted Mrs. Smith of several acts of negligence proximately causing the collision: failure to keep a proper lookout; turning her vehicle to enter a driveway when such movement could not be made with safety; in crossing a double yellow line in the middle of the roadway in order to turn left. The jury also assessed 50 percent negligence to Mrs. Smith and 50 percent negligence to Harriell and fixed Mrs. Smith’s damages at $60,000. As indicated earlier, the trial court, on proper motion, entered judgment for the insurer, non obstante veredicto.

Plaintiffs insist that this cause is ruled by the recent decision of our Supreme Court in Ford v. State Farm Mutual Automobile Insurance Co., 550 S.W.2d 663 (Tex.1977), which in turn followed Stephens v. State Farm Mutual Automobile Ins. Co., 508 F.2d 1363 (5th Cir. 1975). Although there is remarkable similarity in the holdings in the cases mentioned and the facts in the case at bar, we do not find that Ford is dispositive in this case.

In entering judgment in favor of the insurer, the trial court followed precisely the guidelines set out governing fact situations such as he then had presented to him. See, e. g., McClelland v. United Services Automobile Ass’n, 525 S.W.2d 271 (Tex.Civ.App.—Beaumont 1975, writ ref’d), which distinguished Stephens, supra.

The insurer had pleaded a policy violation — one which had been specifically upheld by the Supreme Court of Texas in McClelland, supra — and plaintiff made no effort to plead waiver or estoppel in order to escape the bar of the insurer’s pleadings.

Nearly a century ago in Texas Banking & Insurance Co. v. Stone, 49 Tex. 4, 15-16 (1878), the Court announced the rule which should govern the disposition of this case, saying:

“But while it may be shown by parol evidence that the insurer is estopped from claiming immunity from liability by reason of a breach in the warranty thus improperly or inaccurately incorporated in the policy, yet there must be a proper predicate for this, as well as all other testimony upon which parties rely to support their action or maintain their defense. The evidence is in the nature of a confession and avoidance of the answer of appellant, setting up a breach of warranty. Appellee, however, neither made a replication to the answer, nor, by amendment of his petition, averred the facts upon which he relies in avoidance of the defense set up by appellant. The evidence, if excepted to when offered, should have been excluded; and, though admitted without objection, according to numerous decisions of this court, as it was not warranted by the pleadings, it cannot be looked to as the basis for relief. (Hall v. Jackson, 3 Tex. 305; Cherry v. Newby, 11 Tex. 457; Norvell v. Oury, 13 Tex. 31).” (Emphasis ours)

The insurer’s pleading of the unauthorized settlement established a defense to plaintiffs’ claim until defeated by a proper plea of waiver or estoppel pleaded and proved. McClelland, supra. See Also, Hollen v. State Farm Mutual Automobile Ins. Co., 551 S.W.2d 46 (Tex.1977).

It must be conceded that plaintiffs were not required to interpose any pleadings in order to prevent the insurer from making factual proof of its allegations contained in the pleaded defense; a general denial was regarded as having been interposed. Tex.R.Civ. P. 82. But, as said in Farmers Mutual Protective Ass’n of Tex. v. Thompson, 365 S.W.2d 226, 227 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.):

“Under Rule 94, T.R.C.P., waiver is an affirmative defense which must be pleaded by the party relying upon it. Appellee could not rely upon waiver since it was not pleaded even though some evidence of waiver was introduced without objection . . . [citations omitted].” (Emphasis supplied)

Accord: Young v. Haynes, 295 S.W.2d 536, 538 (Tex.Civ.App.—Galveston 1956, no writ); Young v. De La Garza, 368 S.W.2d 667, 671 (Tex.Civ.App.—Dallas 1963, no writ).

We have given careful consideration to the majority opinion in the Ford Case, as well as the underlying opinion of the Court of Civil Appeals therein, and have been unable to determine whether waiver had been pleaded by the insured. Considering the judicial stature of the author of the majority opinion in Ford, as well as the members of the Court composing the majority, we are led to the inescapable conclusion that waiver must have been pleaded in Ford or the issue was tried by consent, express or implied, under Tex.R.Civ. P. 67. See authorities collated in 2 McDonald, Texas Civil Practice (1970 Rev. Vol.) § 5.18, pp. 54-56.

By indulging in this line of reasoning, we are able to square the holding in Ford with the rule governing pleadings which has been in effect in this state for at least a century. But, our plaintiff has never contended that the issue of waiver was tried by consent. Moreover, under Tex.R. Civ. P. 279, and the case law as it existed when the cause was tried, plaintiff waived any right to recover by failure to request any issue on waiver of the policy provision. Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529, 531 (Tex.1965); Carruth v. First Nat. Bank of Fort Worth, 544 S.W.2d 678, 683 (Tex.Civ.App.—Eastland 1976, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.

AFFIRMED.

      . The language contained in the policy provision providing uninsured motorist protection was standard and has been quoted in many earlier cases. See, e. g., Jessie v. Security Mutual Casualty Co., 488 S.W.2d 140, 141 (Tex.Civ.App.—Fort Worth, 1972, writ refd n. r. e.), where the policy provision is set out in the body of the opinion.

      . An examination of the original record in McClelland discloses that when the insurer pleaded breach of the policy by settlement, it did so in an amended answer which followed a general denial and after extensive pretrial discovery. McClelland did not file any replication to the insurer’s plea of breach of contract.

      . Judge Gee in the Stephens Case, supra, carefully noted that the issue of waiver had been tried by implied consent under F.R.Civ.P. 15(b). 508 F.2d at 1366, fn. 2.


author: DUNAGAN, Chief Justice.

text:
    James Taylor MUSSLEWHITE, Appellant, v. Beryl Ann MUSSLEWHITE, Appellee.
    No. 1031.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 18, 1977.
    Rehearing Denied Oct. 6, 1977.
    Charles E. Crow, Tyler, for appellant.
    Thomas W. Hathaway, Hathaway & Jackson, Tyler, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a divorce decree. Appellant James Taylor Musslewhite, petitioner below (hereafter referred to as appellant), filed a petition seeking a divorce from appellee Beryl Ann Musslewhite, respondent below (hereafter referred to as appel-lee), on the grounds of insupportability because of discord and conflict of personalities. The suit also concerned the parent-child relationship in that two children were born to the marriage. Appellant and appel-lee were married on July 11,1964, and they separated and ceased to live together as husband and wife on October 15, 1974. In his petition appellant asked that appellee be appointed managing conservator of the children.

The court granted its decree of divorce appointing appellee managing conservator and appellant possessory conservator, and ordered appellant to pay an amount of child support which is not contested. The court granted appellant visitation rights and also divided the property in a manner the court deemed equitable. Appellant thereafter timely perfected this appeal, complaining of the visitation provisions and also complaining of the division of property. Appellant requested findings of fact and conclusions of law, and upon the court’s failure to make its findings and conclusions of law, made a second request. However, no findings of fact and conclusions of law were filed and there is no point of error complaining of any failure of the trial court to make said findings and conclusions.

We affirm.

The applicable facts will be presented under the points of error that they are relevant to. In Point of Error No. 1, appellant complains that “The trial court’s division of the estate of the parties was so manifestly unjust and unfair as to constitute an abuse of discretion.”

The record shows that two trusts are the main source of the dispute over property, and that these trusts were the principal assets of the estate. The two trusts were created by appellant’s parents. The “James Taylor Musslewhite Trust No. 129” was established on January 1,1961, by means of a written trust agreement whereby appellant’s parents transferred to the Peoples National Bank (hereafter called the “Bank”), as Trustee, and to appellant, as co-trustee, an undivided ⅛⅛ interest in a partnership known as Baker Tank Company. The trust agreement provided that the partnership interest plus any additional property transferred to the trustees should be held in trust for the sole benefit of appellant. The trust provided that the Bank and appellant were directed to enter into a partnership agreement with the other partners in Baker Tank Company.

Appellant was authorized by the trust to actively participate in the management of Baker Tank Company to the extent ordinarily required of a partner. It is important to mention here that the tax returns of the Baker Tank Company show that appellant devoted one hundred percent of his time to the business of Baker Tank Company.

This trust, according to its provisions, terminated on July 27, 1971, when appellant reached thirty years of age. At that time appellant did not receive the trust assets, but instead allowed the Bank to continue to manage the properties in trust.

During the existence of Trust No. 129, the Bank received the distributions from Baker Tank Company which were attributable to the ⅛⅛ partnership interest held by the trust. The distributions were invested and managed by the Bank and at various times distributions from the trust were made to appellant. At the time the trust terminated on July 27, 1971, the value of the trust, including the ½⅛ interest in Baker Tank Company totaled $125,939.27, plus the undistributed profits of Baker Tank Company which the trust was entitled to.

On August 4, 1975, all of the partners in Baker Tank Company, including Trust No. 129, entered into a contract of sale whereby Baker Tank Company would be sold. Pursuant to such contract, Baker Tank Company was in fact sold. The portion of the sale proceeds attributable to the ⅛⅛ interest held by the Bank was not deposited with the other assets in the trust account, but was deposited in a special escrow account at the Bank pursuant to a letter agreement between appellant, appellee and the Bank. The amount of the proceeds received from the sale of the ⅛⅛ interest totaled $328,-151.11.

Pursuant to the letter agreement appellant withdrew $99,496.66 from the escrow account. This money was used by appellant to form a new business enterprise called Argus Tank Company. The trial court awarded to appellant his partnership interest in Argus Tank Company, which at time of trial had declined in value to a value of $75,000.00 to $87,500.00.

Appellee was awarded from the escrow account the sum of $159,796.55 and the court subtracted therefrom an amount of money to pay off a one-half portion of two promissory notes and income taxes owed by appellant and appellee, resulting in a net realization of $133,265.09 from the escrow account. The balance of the escrow account was awarded to appellant, plus the remainder of the assets in Trust No. 129.

The second trust, the “James Taylor Mus-slewhite Trust No. 395,” was created by appellant’s parents on June 1, 1970, who transferred a V32nd interest in Baker Tank Company to the same bank and appellant as co-trustees. The trust contained similar provisions to Trust No. 129, except that the trust was to remain in effect until appellant’s death.

After the sale of Baker Tank Company, the value of the assets in the trust, including the sale proceeds, was $145,567.87. The trial court awarded Trust No. 395 to appellant.

In dividing the remainder of the estate of the parties, the trial court awarded to the appellant and appellee each a one-sixth undivided interest to a 337.543-acre tract of land. The appellant had acquired an undivided Vard interest in this tract in 1968. Out of the total price of $15,343.38 which appellant paid for the undivided V3rd interest, $11,018.67 was paid with funds traced to a distribution from Trust No. 129.

As to the remainder of the properties, appellee was awarded the residence of the parties, and almost all the household furnishings. In addition, she was awarded her automobile plus one-half of the parties’ stocks and other investments. Appellant was awarded some household furnishings, his automobile, the checking account of the parties, plus several items of limited value. In addition, appellant was to assume all debts of the parties not specifically mentioned in the judgment.

As pointed out in appellant’s brief, the record shows that appellant’s separate property and community property which were awarded to him had a total value of from $375,987.18 to $400,717.60. The property awarded to appellee had a total value of from $247,818.21 to $265,048.71.

Section 3.63, Texas Family Code, provides:

“In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”

In Bell v. Bell, 513 S.W.2d 20 (1974), the Supreme Court of Texas wrote, at page 22:

“ . . . Texas courts have held that such division does not have to be equal, and appellate courts have held it must be presumed that the trial court exercised its discretion properly, and that a case should be reversed only where there is a clear abuse of discretion. . . It is well established that Texas divorce courts are given wide discretion in making division of the property of the parties. That discretion will not be disturbed on appeal unless the court has clearly abused its discretion. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923).” See Roye v. Roye, 404 S.W.2d 92 (Tex.Civ.App.—Tyler 1966, n. w. h.).

Furthermore, in Williams v. Williams, 537 S.W.2d 107, 109 (Tex.Civ.App.—Tyler 1976, n. w. h.) this court stated:

“In considering these points, which charge that the trial court abused its discretion by ordering an unequal division of the property between the parties, we are mindful of the rule that where there are no findings of fact or conclusions of law, we must consider the evidence and all reasonable inferences and deductions that may be properly drawn therefrom in the light most favorable to the appellee, [citing cases] Also there is a presumption in favor of the trial court’s exercise of its discretion regarding division of property in a divorce action, [citing cases]”

Since no findings of fact and conclusions of law were filed of record, it is presumed that the trial court considered the entire circumstances of the parties in division of their property. Whittenburg v. Whittenburg, 523 S.W.2d 797 (Tex.Civ.App.—Austin 1975, n. w. h.).

The fact that a trial judge may exercise his discretional authority in a matter differently than an appellate judge would have done under similar circumstances does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.Sup.1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).

In its judgment the court recited that the “parties own certain property, the community nature of which has been in dispute; however, the Court finds that whether such property be deemed community or separate, in the exercise of the Court’s discretion, it should be divided in the following equitable manner.” (Emphasis added.) The decree then divided the property.

Appellant’s and appellee’s brief devote many pages to a discussion of the community or separate nature of trust income where the corpus of the trust constitutes separate property of the spouse. From the portion of the judgment recited above, it is clear to us that the trial court did not make a determination of the community or separate nature of the trust income. In fact, it was not necessary for the court to do so. In a divorce proceeding the trial court may award to one spouse a substantial portion of the other spouse’s separate personal property “where the circumstances make such action necessary to effect a fair and just division of the property.” Trader v. Trader, 531 S.W.2d 189 (Tex.Civ.App.—San Antonio 1975, writ dism’d).

Had the court made a determination of the community or separate nature of the trust income, of particular importance would be the fact that appellant’s time, toil and talent were devoted to his management position with the Baker Tank Company. The evidence is also conclusive that appellant had a present possessory right to the income of both trusts. Appellant exercised an option to continue Trust No. 129 on his own accord on August 1, 1962 (prior to his marriage). As to Trust No. 395, appellant had a lifetime power of appointment over the income of said trust. The record also indicates that much of the other property was purchased with distributions from the trusts.

We do not think that the court below abused its discretion. Evidently the court considered such factors as disparity of the earning power of the parties, as well as their business opportunities, capacities, and abilities. Even after the division, appellant remained in a more favorable financial condition than did the appellee. Appellant’s first point of error is overruled.

In his second point of error, appellant complains that “The trial court so limited the extent of visitation by Appellant with the children of the marriage as to constitute an abuse of discretion.”

In the decree of divorce the trial court appointed the appellee as managing conservator of the two children and appointed appellant as possessory conservator of the children. With regard to the appellant’s possession of the children the court made the following order:

“IT IS FURTHER ORDERED and DECREED that the Possessory Conservator shall be required to have the possession of the minor children during the period from 1:00 P.M. until 6:00 P.M. on each and every Saturday, other than the first and third Saturdays of each month.
“In addition, IT IS FURTHER ORDERED and DECREED that the Posses-sory Conservator shall have the right of possession of the minor children between the hours of 10:00 A.M. on the first and third Saturdays of each month and 7:00 P.M. on the Sunday following.”

The only complaint of appellant is that he is entitled to more overnight visitation rights by way of full weekend visitation encompassing Friday night. By the terms of the decree, appellant is entitled to see the children each weekend. The record indicates that the parties were not able to agree on visitation privileges and it therefore became necessary for the court to define the same. The extent of visitation accorded to the possessory conservator is largely within the discretion of the trial court. Schwartz v. Jacob, 394 S.W.2d 15 (Tex.Civ.App.—Houston [1st Dist.] 1965, writ ref’d n. r. e.); In re Johnson, 494 S.W.2d 943 (Tex.Civ.App. — Amarillo 1973, n. w. h.).

From the record before us we cannot say that the trial court abused its discretion in dividing the estate of the parties nor in adjudicating the visitation rights of appellant.

Judgment affirmed.

McKAY, J., not participating.


text:
    William P. BIBBY et al., Appellants, v. Joseph E. PRESTON, Appellee.
    No. 1036.
    Court of Civil Appeals of Texas, Tyler.
    August 18, 1977.
    Rehearing Denied Oct. 6, 1977.

      Merrit H. Gibson, Longview, for appellants.
    Jerry S. Harris, Roberts, Harbour, Smith, Harris, French & Ritter, Longview, for ap-pellee.
   DUNAGAN, Chief Justice.

This is a suit to remove cloud from title and for actual and exemplary damages. Appellee Joseph E. Preston (hereafter called “plaintiff”) through his second amended petition brought suit against defendants Ivy Laird, William P. Bibby and wife, Jo Ann Bibby, Cora Maye Rausheck, individually, and C. M. Rausheck, trustee. The case was withdrawn from the jury docket upon the failure of the defendants to appear for trial, pursuant to Tex.R.Civ.P. 220. Plaintiff proceeded with the presentation of his case and announced to the court that all matters in controversy between himself and the defendant Ivy Laird had been settled and that an appropriate instrument would be placed of record whereby and wherein Ivy Laird disclaimed any rights, title or interest in and to the tracts of real property involved in the dispute. Plaintiff presented evidence to the court, and judgment was thereafter rendered in favor of plaintiff. William P. Bibby, Jo Ann Bibby and Cora Maye Rausheck timely made their motions for new trial which were overruled by operation of law, and thereafter timely perfected this appeal. There are no findings of fact and conclusions of law.

For clarity William P. Bibby and wife, Jo Ann Bibby, will be referred to individually as “Mr.” or “Mrs. Bibby.” Cora Maye Rausheck or C. M. Rausheck, trustee, will be referred to as “Rausheck.” Otherwise they shall be collectively referred to as “appellants.”

The dispute in this case involves ownership of certain lots in the Kirkwood addition to the City of Kilgore, located in Gregg and Rusk Counties. The record reveals that by deed dated June 1,1973, the American Founders Life Insurance Company conveyed 42 lots in said addition to Mr. and Mrs. Bibby. Of these lots 28 were covered by general warranty and 14 by special warranty. On July 11, 1973, Mr. and Mrs. Bibby conveyed 26 of the 28 general warranty lots to plaintiff. The deed was recorded on July 19, 1973. No vendor’s lien was reserved in the deed.

On July 24,1973, Mr. Bibby conveyed the fourteen special warranty lots to plaintiff. The deed in designating the grantor recited: “I, William P. Bibby, not joined by my wife, the property herein conveyed being no part of my homestead.” This deed was filed for record on the same day and was recorded on August 9, 1973. Plaintiff thereby held record title to forty of the forty-two lots conveyed by American Founders Life Insurance Company to Mr. and Mrs. Bibby.

On May 28,1974, Rausheck executed and recorded on May 29,1974, a “Vendor’s Lien and Property Ownership Affidavit.” In said affidavit Rausheck swore that:

1. she was the owner of a one-half undivided interest in the same 14 lots conveyed by Mr. Bibby to plaintiff on July 24, 1973;

2. she was the owner of the two lots which had not been conveyed to plaintiff;

3. she had the power to sell any or all of the lots pursuant to a power of attorney granted to her by Mr. and Mrs. Bibby on June 2, 1973;

4. she agreed to allow a direct conveyance from Mr. and Mrs. Bibby to plaintiff-appellee on the same date as her conveyance (July 11, 1973) and to delay recording her conveyance from Mr. and Mrs. Bibby, “to enable the purchaser [plaintiff] to complete arrangements for balance of the purchase price to be paid to the said Cora Maye Rausheck”; and that

5. the consideration to be paid by plaintiff to Rausheck was now past due and that Rausheck had a vendor’s lien against the property.

The deed through which Rausheck allegedly gained title to the properties in question was allegedly executed by Mr. and Mrs. Bibby on July 11, 1973. It, however, was not recorded until June 14, 1974. It is this deed which Rausheck alleges she agreed not to record and thereby allow a direct conveyance from Mr. and Mrs. Bibby to plaintiff to enable plaintiff to “complete arrangements for balance of the purchase price.” The deed from Mr. and Mrs. Bibby to Rausheck is not in the record of this case, but is only before us by way of exhibit attached to appellants’ brief. However, this deed was specifically cancelled by the court’s judgment.

Plaintiff in his second amended petition asked the court to remove only Rausheck’s affidavit from the deed records and any other “affidavits, claims or instruments” placed of record by Rausheck or Mr. and Mrs. Bibby.

Service of citation was properly completed and appellants-defendants had been timely notified of the trial setting and date for hearing. The record shows that the ease was called for trial and that appellants did not appear, although each appellant had made written answer to plaintiff’s pleadings. Plaintiff announced ready and proceeded to present its case to the court, introducing into evidence certain items, among which were the depositions of plaintiff, Rausheck, and Mr. and Mrs. Bibby. Also introduced into evidence were:

1. the deed by American Founders Life Ins. Co. conveying 42 lots to Mr. and Mrs. Bibby;

2. the deed by Mr. and Mrs. Bibby conveying 26 lots to plaintiff;

3. the deed from Mr. Bibby, not joined by his wife, conveying 14 lots to plaintiff; and

4. Rausheck’s “Vendor’s Lien and Property Ownership Affidavit.”

Thereupon the court rendered its judgment, ordering “that any and all affidavits, deeds and instruments including but not limited to Vendor’s Lien and Property Ownership Affidavit . . . and the Warranty Deed from William P. Bibby and Jo Ann Bibby to C, M. Rausheck, Trustee dated July 11, 1973 . . . and any other instruments of whatsoever nature under which any of the Defendants, Cora Mae [sic] Rausheck, C. M. Rausheck, Trustee, William P. Bibby or Jo Ann Bibby claim any rights or interest in and to the title to any one or more ... [of the forty lots previously conveyed to plaintiff] . to be of no force, tenor or effect, and the same are hereby . . . cancelled and removed from the chain of title . as completely as though the same had never been placed of record.” The court also awarded plaintiff actual damages of $72,-600.00 against Mr. and Mrs. Bibby and Rausheck, and exemplary damages of $100,-000.00 against Rausheck separately. No findings of fact or conclusions of law were requested or filed. After their motions for new trial were overruled, appellants perfected this appeal alleging five points of error.

Appellants and appellee in their briefs refer to the judgment of the trial court as a default judgment. This is incorrect. Where a defendant has filed an answer but fails to appear for trial, a judgment by default is improper. The plaintiff in such situation must proceed to trial and prove his case and see to it that a court reporter was present to make a record. Hall v. C-F Emp. Credit U., 536 S.W.2d 266 (Tex.Civ.App.—Texarkana 1976, n. w. h.). The defendants, by failing to appear at trial, do not abandon their answers nor make an implied confession of any issues joined. Frymire Engineering Co., Inc. v. Grantham, 524 S.W.2d 680 (Tex.Sup.1975). In this case plaintiff did proceed to trial and present evidence, all of which were recorded by a court reporter and is now before this court by way of statement of facts.

Where no findings of fact or conclusions of law are filed, this court must presume on appeal that every fact issue and such implied findings as were necessary to support the judgment were found by the trial court. Morris v. Texas Elks Crippled Children’s Hospital, Inc., 525 S.W.2d 874, 881 (Tex.Civ.App.—El Paso 1975, writ ref’d n. r. e.). In passing upon upon whether there is any evidence to support the judgment, we must consider only the evidence favorable to the implied findings of the trial court, but in passing on the insufficiency of the evidence we consider all the evidence in the record. Richardson v. Holmes, 525 S.W.2d 293, 295 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.). In the absence of findings and conclusions the judgment of the trial court must be affirmed if there is any legal theory which supports the judgment which has support in the evidence. Washington v. Law, 519 S.W.2d 953, 954 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n. r. e.).

We shall consider appellants’ third, fourth and fifth points of error together. In all three points appellants complain that the court should not have rendered judgment cancelling both specified and unspecified instruments. In point of error number three appellants allege that the deed from the Bibbys to Rausheck should not have been cancelled because there was no evidence to support the cancellation. In point of error number four appellants allege that Rausheck’s “Vender’s Lien and Property Ownership Affidavit” should not have been cancelled in the absence of a showing by a preponderance of the evidence that the statements in such affidavit were untrue and that her claim was unfounded. In their fifth point of error appellants complain of the judgment generally, alleging that it cancelled instruments of record “without support in the pleadings, without evidence” and did not describe such instruments specifically.

The principal issue in a suit to quiet title concerns the existence of a cloud on title that equity will remove. 47 Tex. Jur.2d “Quieting Title” sec. 27, page 523. The primary requisite in a suit to quiet title is that the plaintiff must prove, and thereby recover on, the strength of his title and not on the weakness or invalidity of his adversary’s title. McGuire v. Bond, 271 S.W.2d 508, 511 (Tex.Civ.App.—El Paso 1954, writ ref’d n. r. e.); Katz v. Maddox, 256 S.W.2d 249, 250 (Tex.Civ.App.—San Antonio 1953, writ ref’d n. r. e.).

In this case plaintiff offered three deeds into evidence to prove up his title to 40 lots. Under the first deed in evidence, American Founders Life Insurance Company conveyed to Mr. and Mrs. Bibby the following 42 lots being part of the Kirkwood Addition to the City of Kilgore:

1. By general warranty, 28 lots, as follows:
Block One: Lots 1, 2, 3 & 4
Block Five: Lot 5
Block Seven: Lots 1, 2, 4, 5 & 7
Block Eight: Lot 9
Block Nine: Lot 9
Block Ten: Lots 1, 2, 3, 4, 6, 7, 8, 9 & 10
Block Twelve: Lots 2, 3, 4 & 8
Block Thirteen: Lots 1, 6 & 7
2. By special warranty, 14 lots, as follows:
Block Three: Lot 3
Block Seven: Lot 8
Block Eight: Lot 7, 8, 11 & 13
Block Nine: Lots 4, 6, 7, 10 & 11
Block Ten: Lot 5
Block Twelve: Lot 9
Block Thirteen: Lot 4

In the second deed offered into evidence by plaintiff, Mr. & Mrs. Bibby conveyed by warranty deed 26 of the 28 general warranty lots to plaintiff, as follows:

Block One: Lots 1, 2, 3 & 4
Block Five: Lot 5
Block Seven: Lots 1, 2, 4, 5 & 7
Block Nine: Lot 9
Block Ten: Lots 1, 2, 3, 4, 6, 7, 8, 9 & 10
Block Twelve: Lots 2, 3, 4 & 8
Block Thirteen: Lots 1 & 6

In the third deed offered into evidence by plaintiff, Mr. Bibby, not joined by his wife, conveyed by warranty deed the 14 special warranty lots to plaintiff, as follows:

Block Three: Lot 3
Block Seven: Lot 8
Block Eight: Lots 7, 8, 11 & 13
Block Nine: Lots 4, 6, 7, 10 & 11
Block Ten: Lot 5
Block Twelve: Lot 9
Block Thirteen: Lot 4

In their deposition Mr. and Mrs. Bib-by made vague comments about a deed which they gave to Rausheck. In Raush-eck’s “Vender’s Lien and Property Ownership Affidavit” she suggested that “She is the owner of a One-Half (½) undivided interest in and unto” the same 14 lots conveyed to plaintiff by Mr. Bibby without the joinder of Mrs. Bibby. Rausheck also asserts in her affidavit that she was conveyed this undivided interest in the 14 lots by deed from Mr. and Mrs. Bibby. In their brief, appellants Rausheck and Mr. and Mrs. Bibby refer to a deed from Mr. and Mrs. Bibby to Rausheck conveying an undivided interest in the same 14 lots. By way of exhibit, appellants attached to their brief a copy of the purported deed which is not in evidence, and yet, is expressly cancelled and removed from chain of title by the judgment. The deed attached to appellants’ brief shows a conveyance by Mr. and Mrs. Bibby to Rausheck of the same 14 lots previously conveyed to plaintiff by Mr. Bibby, though not joined therein by Mrs. Bibby. However, as to this purported deed, not being before us through formal inclusion in the record, we cannot consider said deed for any purpose. Nixon v. Royal Coach Inn, 464 S.W.2d 900, 901 (Tex.Civ.App.—Houston [14th Dist.] 1971, n.w.h.).

Thus, this case itself has a cloud on it. The judgment expressly cancels and removes from chain of title a “Warranty Deed from William P. Bibby and Jo Ann Bibby to C. M. Rausheck, Trustee dated July 11, 1973.” It appears from the exhibits on file in the record that this deed affects only the 14 lots. This deed, however, was not introduced into evidence nor is it before us otherwise by formal inclusion in the record. Plaintiff did not even mention said deed in his pleadings. “The judgment of the court shall conform to the pleadings, the nature of the case proved . . .” Tex.R.Civ.P. 301. There is also a question here as to whether or not the judgment conforms to plaintiff’s pleadings. Nevertheless, we do not reach this question since the judgment in part does not conform to the case proved.

What is in the record concerning plaintiff’s right to remove cloud on title is evidence clearly showing that he has full and unencumbered title to the 26 lots previously described. As to these 26 lots previously described, the judgment is affirmed. As to the 14 lots, title to which is disputed, the judgment is reversed and remanded.

Appellants in their first and second points of error allege the court erred in rendering judgment for actual unliqui-dated damages against appellants and exemplary damages against appellant Raush-eck without hearing evidence as to such damages. We reiterate here that the judgment was not a default judgment even though it may have been designated as such by all parties and the court below. However, appellants’ points are well taken. The court awarded actual damages of $72,600.00 against appellants and exemplary damages of $100,000.00 against appellant Rausheck. The only evidence in the record as to damages are the general statements by plaintiff in his deposition that his development of the property was tied up by the clouds on title after he had a total investment of $85,517.00 in the property, including approximately $25,000.00 for engineering and attorney fees, plans, specifications and “various things of that nature.” It was plaintiff’s intent here to develop the property and sell it in lots to purchasers for residential purposes. From the deposition testimony of plaintiff it is obvious that delay was the cause of whatever damages he suffered. The damages to be awarded as a result of cloud on title to realty are those damages which would compensate for the loss or prejudice suffered. McCollum Exploration Co. v. Reaugh, 146 S.W.2d 1109, 1111 (Tex.Civ.App.—San Antonio 1940) affirmed 139 Tex. 485, 163 S.W.2d 620. Plaintiff here has failed to show what amount of damages, if any, would compensate him for the delay caused by cloud on his title.

There is no question but that exemplary damages may be awarded in a suit to remove cloud on title. Reaugh v. McCollum Exploration Co., 139 Tex. 485, 163 S.W.2d 620, 622 (Tex.1942). However, without proof of actual damages, there can be no award for exemplary damages. Phillips v. Wertz, 546 S.W.2d 902 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.). Therefore, that portion of the judgment awarding actual and exemplary damages is reversed and remanded for full development of evidence on damages.

In summary the judgment of the trial court is affirmed in part and reversed and remanded in part. That portion of the judgment holding that plaintiff is entitled to have all clouds on title to the 26 lots (conveyed to him by the Bibbys on July 11, 1973) removed is affirmed. That portion of the judgment holding that plaintiff is entitled to have all clouds on title to the 14 lots (conveyed to him by Mr. Bibby’s deed individually) removed is reversed and as to those 14 lots only this case is remanded for a determination of the rights of all parties in said 14 lots. That portion of the judgment awarding actual and exemplary damages to plaintiff is reversed, and this case is remanded for further development of damages suffered by plaintiff, if any.

Affirmed in part and reversed and remanded in part.