author: NYE, Chief Justice.

text:
    HARTFORD ACCIDENT & INDEMNITY CO., Appellant, v. Wilburn Phil THURMOND et al., Appellees.
    No. 920.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 22, 1975.
    Rehearing Denied Aug. 29, 1975.
    On Rehearing and Filing of Remittitur June 19, 1975.

      G. P. Hardy, III, Michael Terry, Vinson, Elkins, Searls, Connally & Smith, Houston, for appellant.
    Ernest Cannon and James E. Robinson, Kronzer, Abraham & Watkins, Houston, for appellees.
   OPINION

NYE, Chief Justice.

This is a workmen’s compensation case. Appellee Wilburn Phil Thurmond alleged that on August 13,1970, while in the course and scope of his employment he suffered a strain or exertion causing harm or damage to his heart, resulting in total and permanent disability. Trial was before a jury and the case submitted on special issues. The jury returned a verdict for Thurmond and judgment , was entered by the trial court accordingly. From this judgment, Hartford Accident and Indemnity Company has perfected its appeal contending primarily that there was insufficient evidence, legally and factually, to support a finding of either accidental injury or that the injury was the producing cause of the disability of Thurmond.

Wilburn Phil Thurmond was a man forty-one (41) years of age at the time of the alleged injury. Having no formal education, he had for the most part of his life undertaken the trade of a mechanic. Beginning in 1962, Thurmond went to work for O’Neal Farm Machinery Company. He was employed as a mechanic and worked on heavy equipment. It was quite common for Thurmond to go out to somebody’s field and repair their equipment. On occasions, such work required lifting and straining.

On October 8, 1969, while employed by Mr. O’Neal and doing some heavy lifting, Thurmond suffered a sudden onset of severe chest pains, weakness, sweating and faintness. H'e was immediately treated by Dr. Joe Cannon and admitted to Matagorda General Hospital’s Intensive Care Unit. Dr. Cannon diagnosed Thurmond’s condition as an acute myocardial infarction, such diagnosis being based on the history of the attack and the results of an electrocardiogram indicating that injury had occurred to a portion of the heart wall. Thurmond was also found to be suffering from arterioscle-rotic disease. He remained in the hospital in Bay City for approximately eight (8) days, then was transferred to Houston at which time a pacemaker was strapped to his arm. The pacemaker was removed prior to being released from the hospital in Houston. He returned to the hospital in Bay City October 28,1969, for convalescence and observation.

Thurmond was released from the hospital October 30,1969, and returned to light duty work on November 26,1969. On December 14, 1969, Dr. Cannon became satisfied that Thurmond had recovered from the heart attack of October 8, 1969, so far as the damage done in that heart attack, and that such would no longer disable him. Thurmond returned to his regular duties working for O’Neal on January 14, 1970. From that point until August of 1970, Dr. Cannon continued treating Thurmond which included exercises and control of weight and diet. Also, during this time he was given some medication to control the angina or chest pain that he periodically experienced.

Thurmond was again hospitalized March 13, 1970, for a case of angina pectoris and released March 15, 1970. His treatment was continued. From that point in time, Thurmond continued his usual duties as a mechanic and appeared to be progressing well according to Dr. Cannon although he was still experiencing angina or chest pain occasionally. During the time Thurmond was employed by O’Neal, and on the day in question (August 13, 1970), O’Neal’s insurance carrier was Hartford Accident and Indemnity Company.

On the morning of August 13,1970, Thurmond had begun repairing a tractor in a field belonging to one of O’Neal’s customers. The temperature that day was very hot. In order to repair the tractor, Thurmond had to lift a pump, an extremely heavy piece of equipment. In doing so, he had to strain to lift the pump out. At that time, he began having severe chest pains and experienced dizziness. Thurmond stated such pains were so severe, he thought he was going to die. He stopped and laid down under the tractor and rested. Later, he received help in taking the pump off the tractor. He then drove back to Bay City to see Dr. Cannon. While driving back to Bay City, he had trouble keeping conscious and drove off the road several times. Dr. Cannon immediately placed Thurmond in the hospital in Bay City where he remained for several days. He was then referred to a group of cardiologists in Houston and underwent certain tests which included an arteriogram. It was determined that Thurmond was suffering from severe occlusive disease of both the major systems of arteries in the heart. A coronary bypass operation was recommended by Dr. Howell. Such operation had not been advised nor recommended prior to the August 13, 1970 occurrence. This major surgery was performed on August 25,1970 by Dr. Howell of Houston. Following the surgery in Houston, Thurmond returned to Bay City and was again treated by Dr. Cannon. The effects of this surgery produced acute complications requiring further surgery in April of 1971.

Up until December of 1970, Thurmond remained at home convalescing. He went back to work for Mr. O’Neal in December, 1970, and started doing light work but found he was unable to do the job because of chest pains. Not being able to hold down a job doing any bending stooping or lifting, Thurmond went to work as a security guard.

On-July 25, 1972, the Industrial Accident Board awarded Thurmond forty-six (46) weeks of temporary total disability at $49.00 per week, three hundred (300) weeks of permanent partial disability at $12.00 per week, and ordered Hartford Accident and Indemnity to pay Thurmond’s medical bills. Hartford filed notice of appeal with the Board and thereafter filed suit in the 130th district court of Matagorda County, Texas.

The jury found in answer to special issues that 1) Thurmond had sustained an injury on August 13,1970; 2) that such injury was a producing cause of the total disability; 3) that such incapacity began August 13,1970; and that 4) such incapacity was permanent. The jury further found that the prior heart attack sustained by Thurmond on October 8, 1969, did not contribute to any total incapacity; that such total incapacity was not caused solely by atherosclerosis; and that medical care was reasonably required as a result of such injury in the amount of $9,561.00. Judgment was accordingly entered in favor of Thurmond for $29,134.17.

Hartford appeals and in its first and second points of error claims that the trial court erred in submitting to the jury special issue No. 1 that Thurmond sustained an injury on August 13, 1970 because 1) there was no evidence in the record to raise such issue for a determination by the jury, and that 2) the affirmative answer by the jury is against the great weight and preponderance of the evidence.

Hartford contends that in heart attack cases in order to have a “compensable injury” as defined by Tex.Rev.Civ.Stat.Ann. Art. 8306, Sec. 20 (1967), “heart attack” must be defined as a “myocardial infarction” which in medical terms is by definition, damage and/or death to the heart muscle, and there was no evidence that Thurmond suffered a myocardial infarction or that he suffered damage to the heart muscle as a result of his activity on August 13, 1970. Thurmond, on the other hand, contends that such limitation on compensa-ble harm or damage to the physical structure of the body, in heart attack cases, to mean only objectively confirmable cases of death to tissue or muscles of the heart would be an unreasonably restrictive and undesirable rule. The question here is: has Thurmond suffered damage or harm to the physical structure of his body (in particular his heart) as shown by the evidence so as to entitle him to compensation?

In considering Hartford’s “no evidence” point, it is the duty of this Court to review the evidence in the light most favorable to the jury’s verdict and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). Thurmond testified that on August 13, 1970, after straining to lift a hydraulic pump from the motor of a tractor, he suffered severe chest pains, nausea, dizziness, sweating and shortness of breath, and that during his trip to the doctor he had trouble keeping his car on the road because of blackouts. In answer to a hypothetical question propounded to Dr. Cannon in his deposition, which was introduced in evidence, his opinion based on reasonable medical probability was that Thurmond did in fact sustain an injury to his body on August 13,1970, as a result of the activities he was engaged in. Dr. Cannon testified unequivocably that if you define an injury as damage or harm to the physical structure of the body, Thurmond sustained such an injury on August 13, 1970. He testified that such injury was precipitated by his activity and the conditions under which he was pursuing those activities. It also appears from Dr. Cannon’s deposition that an electrocardiogram was performed on Thurmond after the August 13, 1970, occurrence and such showed “non-specific T-wave changes”. Dr. Cannon stated that the significance of that finding was that it was probably indicative of injury current which is caused by an injury of some kind.

Dr. Cannon further testified that the word “heart attack” is a broad term used by both medical and lay people to describe several possible situations, most frequent of which would be that of myocardial infarction. He stated, however, that acute coronary insufficiency call be referred to as a heart attack and such is not merely a “symptom”. Both Dr. Cannon and Dr. Howell agreed that Thurmond at least suffered a coronary insufficiency on August 13, 1970. Dr. Cannon testified that Thurmond was suffering from the disease of arteriosclerosis which existed prior to August 13, 1970, and that such disease was progressive. He also testified that the increase in the work load of the heart (due to Thurmond’s activities) had increased at the time in question and that such would cause an increased demand for blood to all areas of the heart whose blood supply was questionable, and would reach that point beyond which it could function properly, and this is usually associated with pain and development of injury currents which can be measured in the electrocardiogram.

Dr. Howell, the expert witness for Hartford, testified that in his opinion Thurmond did not suffer a heart attack and did not suffer damage to his heart on August 13, 1970. However, Dr. Howell did think that Thurmond did suffer from a severe ische-mia of his myocardium. When asked what is meant by the word “ischemia” Dr. Howell testified as follows:

“Q What is that?
A It’s a lack of blood.
Q What is the result of that condition?
A Tissue death.
Q So that when the arteries that supply blood to the heart muscle become blocked or stopped for one reason or another, the blood no longer gets to the muscle and the muscle dies as a result of a lack of the oxygen?
A That’s correct.”

Dr. Howell (Hartford’s expert witness) further testified as follows:

“Q Doctor, excuse me. Let me ask you this question, and ask you to assume these facts with me. Assume that a man is suffering from atherosclerosis of long standing and has a. history of a previous myocardial infarction, and in fact has had numerous occurrences of coronary insufficiency and on a particular day, he is a tractor mechanic, and he goes out on an August morning, obviously a hot morning, and is working on a tractor doing the normal tasks of a tractor mechanic, and experiences angina and coronary insufficiency and then is placed in the hospital, do you have an opinion as to what period of time would have elapsed before that man’s condition would revert back to the identical same condition it was immediately prior to his occurrence of angina and coronary insufficiency caused by the activity and demands of his work?
A Well, it depends on — yes, I have an opinion. And depending on the degree of the insufficiency, I don’t know that it would revert back completely to his pre-existing state. I mean, it would be a hard measurement, and I think it’s something that I couldn’t give you a real answer on that, because he may have some degree of muscle damage that’s not measured, that can’t be measured, so-called ‘subendocardial ischemia.’ This, of course, he could have death to a small amount of muscle and not be reflected either in electrocardiograms and/or serum enzyme studies, which is the means that we have of detecting any serious muscle damage. But I can’t say that the man would revert back completely to his previous state. I mean, it’s — I have an opinion, you know, that in this man, I mean from reflection of the studies that were done, that he probably did. But I can’t say that he did.”

It is clear that after reviewing the evidence most favorable to the findings of the jury there appears to be ample evidence to support the submission of special issue No. 1.

Hartford’s second point is that there was insufficient evidence to support the jury’s affirmative answer to special issue No. 1 and therefore, any such affirmative answer is against the great weight and preponderance of the evidence. Such a point requires the Court of Civil Appeals in the exercise of its power, to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial if we conclude that the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. We are required to consider all the evidence of probative force tending to prove the existence of the vital facts and the evidence tending to disprove their existence. If the findings by the jury of the existence of the facts (considering all of the evidence) is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust, this Court should sustain the point or points of error, reverse the judgment, and order a new trial. Otherwise, this Court should overrule the points and affirm. In re King’s Estate, 244 S.W.2d 660 (Tex.Sup.1951), and Calvert “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 359. Southern Pacific Company v. Stanley, 473 S.W.2d 52 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.).

Dr. Howell testified that Thurmond did not suffer a myocardial infarction and that there was no damage done on August 13, 1970, but later had to limit his statement in that he could not preclude that no damage was done. Hartford contends that it must be shown that Thurmond suffered damage to his heart muscle and the only way this could be done was to show that Thurmond suffered a “myocardial infarction”. With this, we disagree.

Article 8306, § 20, Tex.Rev.Civ. Stat.Ann. (1967), provides that “whenever the terms ‘injury’ or ‘personal injury’ are used in the Workmen’s Compensation Law of this state, such terms shall be construed to mean damage or harm to the physical structure of the body and such diseases and infection as naturally result therefrom.” Damage has been defined as a direct physical injury to a cell, tissue, organ or organ system. Bailey v. American General Insurance Company, 154 Tex. 430, 279 S.W.2d 315 (1955). Harm with reference to a living, active structure (as the body is) means essentially that the structure no longer functions as it should. Harm also embraces the impairment of use or control of physical structures directly caused by the accident. Bailey v. American General Insurance Company, supra.

It is undisputed that a “heart attack” caused by strain or overexertion is an accidental injury to the physical structure of the body within the meaning of the workmen’s compensation act. Baird v. Texas Employers’ Insurance Association, 495 S.W.2d 207 (Tex.Sup.1973); Insurance Company of North America v. Kneten, 440 S.W.2d 52 (Tex.Sup.1969); Aetna Casualty & Surety Company v. Scruggs, 413 S.W.2d 416 (Tex.Civ.App.—Corpus Christi 1967, no writ). It appears, however, that there are no cases that place the restrictive meaning on “heart attack” as Hartford would have us do, that being that “heart attack” must be defined as myocardial infarction. This is not the test. The test is whether such strain or exertion incurred by the claimant, Thurmond, resulted in an injury. Baird v. Texas Employers’ Insurance Association, supra; Insurance Company of North America v. Kneten, supra; Hardware Mutual Casualty Company v. Wesbrooks, 511 S.W.2d 406 (Tex.Civ.App.—Amarillo 1974, no writ). See also Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex.Sup.1972). Such limitation on the term “heart attack” as Hartford would have us apply would be in contravention of the construction the workmen’s compensation statutes are to be given. It was stated in Bailey v. American General Insurance Company, supra, that “in determining the meaning of the definition of injury contained in the Workmen’s Compensation Statute the Court should be guided by the often announced rule of construction in reference to this statute, that since it is ‘remedial’, ‘if there be any reasonable doubt which may arise in a particular case as to the right of the injured employee to compensation, same should be resolved in favor of such right.’” See also Jones v. Texas Indemnity Ins. Co., 223 S.W.2d 286 (Tex.Civ.App.—El Paso 1949, writ ref’d); Consolidated Casualty Insurance Company v. Jackson, 419 S.W.2d 232 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref’d n. r. e.).

Having reviewed and weighed all of the evidence both for and against the issue as submitted and having given effect to the reasonable inferences that the jury was permitted to make from the evidence, we hold that the jury’s findings on this issue are not contrary to the great weight and preponderance of the evidence. Appellants’ points one and two are overruled.

Hartford’s points of error No. 3 and 4 are that the trial court erred in submitting to the jury special issue No. 2 because there was no evidence to raise such issue for determination by the jury and that the jury’s affirmative answer to special issue No. 2 was against the great weight and preponderance of the evidence. Special issue No. 2, together with the jury’s answer thereto reads as follows:

“2. Was the injury a producing cause of any total incapacity?
(Answer ‘Yes’ or ‘No’) Yes.”

Under Texas law all that must be shown to establish causation between an injury and disability is that the injury was a producing cause. In other words, it must be a cause that in a natural and continuous sequence, by itself or in connection with other causes or cause, produces disability, and without which the disability would not have occurred. See 62 Tex.Jur.2d Workmen’s Compensation § 67.

Hartford argues that the test should be that there must be an opinion from the doctors that there was a medical probability (not a possibility) that there was a causal connection between the manifestation of the symptoms and the surgery. Dr. Cannon, Thurmond’s treating physician, established all of the elements of the tests of producing cause. He stated, in effect, that the injury of August 13, 1970, in a natural and continuous sequence produced the surgery which resulted in disability and that without the injury on said date, the disability would not have occurred, at least when it did. Dr. Cannon testified that the injury on August 13, 1970, was a precipitating factor that made the surgery occur when it did occur and that he would not have had the surgery at the time he did but for the injury. Dr. Cannon was cross-examined by Hartford’s attorney as follows:

“Q I believe that you testified that on the morning of August 13, you thought (sic) Mr. Thurmond, and described his condition that he had had a heart attack?
A That is right.
Q All right, and that Mr. Thurmond sustained an injury on August 13, 1970?
A That is right, as defined by Mr. Cannon.
Q Okay, that the surgery was brought about by the injury of August 13, 1970?
A That is right.
Q That this is a permanent condition in Mr. Thurmond as it exists here today?
A That is correct.
Q All right, the need for Dr. Howell’s surgery arose out of the occurrence of August 13, 1970?
A That is correct.
Q If it had not been for the occurrence of August 13, 1970, Will Thurmond would not have had the surgery?
A At that time.”

It is undisputed that Thurmond was suffering from arteriosclerosis prior to and on the date in question, August 13, 1970, and that such disease was thought to be severe and progressive. Dr. Cannon testified that prior to August 13, 1970 surgery had not been advised nor recommended. During that time prior to August 13, 1970, Dr. Cannon was consulting with Dr. Peterson, a cardiologist in Houston who deemed it unnecessary to do an arteriogram prior to August 13, 1970. Dr. Cannon testified as follows:

“Q Now, as I see your testimony here today, Dr. Cannon, you feel that this need for this surgery done by Dr. Jimmy Howell was made necessary by the occurrence of August 13, 1970?
A That is correct, had it not been for the episode I would not recommend the surgery.
# * * * * *
Q Back to August 13, 1970; if it had not been for that episode out on Mr. McKelvy’s farm that we have already talked about, would Mr. Thurmond had (sic) needed the surgery when he did get it on the date that he did have the surgery? Would he have needed it but for that experience? In other words, if he hadn’t had that episode and those complaints, would he have had the surgery when he received it?
A No.”

It is clear that there was ample evidence to support the submission of special issue No. 2.

We next consider whether the evidence was sufficient to support the jury’s finding that the injury (of August 13, 1970) was a producing cause of any total incapacity and in doing so we must consider and weigh all of the evidence presented by the record. Garza v. Alviar, supra; Southern Pacific Company v. Stanley, supra. Dr. Howell testified that the episode of August 13, 1970, was not a producing cause for his surgery and that such episode simply precipitated him going to the doctor for further evaluation. It should be noted here that Dr. Cannon was the treating physician prior to August 13, 1970, whereas Dr. Howell had not seen Thurmond at all until the time of the operation. On the other hand, Dr. Cannon testified that had it not been for the episode, he would not have recommended the surgery. Although there was conflicting evidence between the doctors, the jury was at liberty to choose whom to believe. Considering all the evidence, including the testimony by all the doctors in light of the rules heretofore laid down, it cannot be said that the jury’s affirmative answer to special issue No. 2 was against the great weight and preponderance of the evidence so as to be manifestly unjust. Appellant Hartford’s third and fourth points of error are overruled. ■

In its points of error numbers 5 and 6, Hartford complains that there was no evidence to support the submission of the issue of whether medical care was reasonably required as a result of the injury, and insufficient evidence to support the jury’s affirmative answer thereto and, therefore, such answer was against the great weight and preponderance of the evidence. Special issue numbers 8 and 8a with the jury’s answer thereto reads as follows:

“8. Was medical care reasonably required as a result of such injury? Yes
8a. What was the reasonable cost expended or incurred by Wilburn Thurmond to cure and relieve him from the effects naturally resulting from the injury? $9,561.00”

Hartford contends that the plaintiff has failed to adduce any proof connecting the operation to the lifting of the tractor pump. Article 8306, § 7, provides in part that the insurance carrier shall provide medical care “as may reasonably be required at the time of the injury and at any time thereafter to cure and relieve from the effects naturally resulting from the injury.” It must be remembered that where disability results from medical treatment instituted to cure or relieve an employee from the effects of his injury, it is regarded as having been proximately caused by the injury and is compensable. Liberty Mutual Insurance Company v. Pool, 449 S.W.2d 121 (Tex.Civ.App.—Texarkana 1969, writ ref’d n. r. e.); Maryland Casualty Company v. Sosa, 425 S.W.2d 871 (Tex.Civ.App.—San Antonio 1968, 432 S.W.2d 515, writ ref’d n. r. e.). See also Lopez v. New Amsterdam Casualty Company, 261 F.2d 659 (C.A. Fifth Cir.1958).

As Dr. Cannon has previously testified, had it not been for the occurrence of August 13, 1970, he would not have recommended the surgery and if it had not been for that episode, he would not have received the surgery when he received it. The cardiologist, Dr. Peterson with whom he had consulted about Thurmond’s condition, never advised nor recommended surgery prior to August 13, 1970. It was not until August 18, 1970 that surgery was recommended and such recommendation was based on the findings of the arteriogram. Dr. Cannon testified that the surgery was brought about by the injury or precipitated by the injury and that the surgery itself was disabling.

The following medical expenses incurred by Thurmond were introduced into evidence without objection and are set out as follows:

1. Dr. Jimmy F. Howell $1,500.00
2. Dr. Edmond M. Fountain ⅝ 20.00
3. Taylor Bros. Funeral Home 94.00
4. Dr. William B. Gerecke 275.00
5. Methodist Hospital 4,341.85
6. Dr. Peterson • 600.00
7. Dr. Cannon 2,531.00
TOTAL $9,361.85

Hartford raises no issue as to the reasonableness of such charges, only that the judgment should be reduced to the maximum justified by the evidence. With this, we agree. We find evidence in the record to support only the amount of $9,361.85, whereas the jury found $9,561.00, leaving $199.15 unsupported. This portion of the jury verdict is a divisible award and we are authorized to require a remittitur of the amount assessed which lacks support in the record. Transport Insurance Company v. Kennon, 485 S.W.2d 598 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.); Texas Employers’ Ins. Ass’n. v. White; 107 S.W.2d 360 (Tex.Sup.1937). After reviewing all of the evidence in light of the rules set forth hereinabove, we overrule appellant’s points of error numbers 5 and 6. However, we will sustain point 5 in part on condition of a remittitur.

Hartford’s seventh point of error was that the trial court abused its discretion in' granting the plaintiff a trial amendment or in the alternative, it was error for the trial court to have refused to have protected the objecting defendant by a requested continuance. During voir dire examination by Thurmond’s attorney, he stated that Thurmond was entitled to benefits under Hartford’s Insurance policy because Thurmond sustained an injury on the job in August of 1970, to which Defendant’s attorney objected on the ground that plaintiff’s pleading stated that Thurmond suffered a “heart attack” while in the course and scope of his employment without there being any general allegation of “injury” and that plaintiff’s attorney should be limited to the allegations of a “heart attack”. A trial amendment was offered amending plaintiff’s pleading to include the word “injury”, which the court granted and overruled defendant’s objection thereto. Defendant’s attorney then pleaded surprise and moved the court for a continuance.

Rule 66, Texas Rules of Civil Procedure, allows the court to amend the pleadings and suggests that the courts do so freely “. . . when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. . . . ” . A trial court is vested with broad judicial discretion with regard to permitting trial amendments. Something more than just an objection to the amendment must appear before a reviewing court can say that the trial court has abused this discretion. Garcia v. Caletka, 486 S.W.2d 880 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.). See also Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948); Herrin Transportation Co. v. Parker, 425 S.W.2d 876 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ ref’d n. r. e.). Although Hartford plead surprise and prejudice, the burden was upon it to satisfy the court that the allowance of such amendment would prejudice it in maintaining its defense on the merits. There appears to be no such showing and no showing of an abuse of discretion. This point is overruled.

Hartford’s eighth point of error is that the trial court erred in overruling defendant’s motion for mistrial based upon final argument of counsel for Thurmond, “that Hartford had appealed from the award of the Industrial Accident Board.” It should be noted, however, that the following evidence was adduced during the cross-examination by defendant’s counsel of the Honorable Bert Huebner, County Judge and one of the attorneys who had represented Thurmond at one time.

“Q At what point did Mr. Cannon come into the picture, and explain to the jury, if you would Judge, how he came into the picture?
A All right, I referred the case to Mr. Cannon’s law firm after the hearing before the Industrial Accident Board from which Hartford Accident Company appealed.”

Such evidence at that point was before the jury. Hartford’s counsel failed to object to the answer and failed to move that it be stricken or that the jury be instructed to disregard it. As to the argument of plaintiff’s counsel during final argument, it was stated that Hartford Accident and Indemnity Company was the insurance carrier for O’Neal; that Thurmond’s claim was submitted to the Industrial Accident Board; that the board acted in that case; that Hartford would not accept the action taken and an appeal was taken from it. However, there was no mention as to the contents of the award or the type of disability found or monetary recovery.

It has long been the settled rule in Texas that the admission of the award of the Industrial Accident Board into the record is error. Tanner v. Texas Employers’ Insurance Association, 438 S.W.2d 395 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.); Federal Underwriters Exchange v. Bickham, 138 Tex. 128, 157 S.W.2d 356 (1941). However, the question propounded by defendant’s attorney, to the Honorable Bert Huebner, and his answer thereto (without objection or request for instruction) were already impressed in the minds of the jurors before final argument. See Tanner v. Texas Employers’ Insurance Association, supra. Although not approving such jury argument by plaintiff’s counsel, under the facts and circumstances in this particular case, what was said did not amount to such a denial of Hartford’s rights as was reasonably calculated to, and probably did, cause the rendition of an improper judgment. Rule 434, T.R.C.P. Hartford’s point of error No. 8 is overruled.

Hartford’s point of error No. 9 was that the trial court erred in overruling defendant’s motion for new trial based on the cumulative effects of final arguments by counsel for Thurmond, Mr. Jack Salyer and Mr. Ernest Cannon, such arguments having been so highly prejudicial and inflammatory as to have resulted in Hartford not having received a fair and just deliberation from the jury based upon the evidence. Hartford argues that if it had objected to all of the remarks of Thurmond’s attorneys, such continuous objections would have compounded the error and that no instruction from the court could have corrected the cumulative effect of such error. Many separate portions of the arguments made by counsel for Thurmond were set forth in Hartford’s brief as prejudicial error. The alleged improper arguments complained about included statements to the effect: that Mr. Hardy’s law firm was one of the largest in the world and would do what it was told by Hartford, one of the largest insurance companies in the world; that at the direction of Hartford someone was sent to try to defeat Thurmond out of his little benefits; that they sent Pepper Hardy (Hartford’s counsel), a native that was born and raised in Bay City, and that his daddy is a district judge; that Hartford told Hardy to go down there and to do something to get these people out of paying their just debts and not to live up to the contract Thurmond got as an employee for Bill O’Neal; that Hartford put poor Pepper (Hardy) in an impossible situation because we assume that it must have instructed him to come down and talk out of both sides of his mouth in order to get the message forth that Hartford wanted you to believe; and that Hartford is a corporation which is cold, has no soul, heart, morals nor compassion, and what is right does not fit within, that mind, because it has no mind; that Thurmond has brought his case to you twelve people for you do have minds, and you do have consciences, and he has asked you to decide this case, and not have a soul-less corporation decide what his rights are and what is fair with him.

Improper jury arguments are usually referred to as one of two types: “curable” or “incurable”. A jury argument is “curable” when the harmful effect of the argument can be eliminated by a trial judge’s instruction to the jury to disregard what they have just heard. The error is “cured” and rendered harmless by the instruction. On the other hand, an argument may be so inflammatory that its harmfulness could not be eliminated by an objection or an instruction to the jury to disregard it. The prejudicial nature of the argument is so acute that it is “incurable”. See Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.Sup.1968). See also Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953). If an argument is of a “curable” nature, an objection to it must be promptly made and an instruction requested, or the error is waived. To do otherwise is to allow a party to have two bites at the same apple. A party can gamble upon a favorable verdict, and then if disappointed may afterwards seek to obtain a new trial. Tanner v. Texas Employers’ Insurance Association, 438 S.W.2d 395 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.). As the Houston Court of Civil Appeals noted in McNeil v. Current, 484 S.W.2d 394 (Tex.Civ.App. —Houston [1st Dist.], 1972, writ ref’d n. r. e.), the decision as to whether or not to object to an argument is one of the trial lawyer’s “immediate difficult decisions”. But if the argument is “incurable”, the failure to object does not result in a waiver. Hartford claims that the jury arguments of Thurmond’s attorney were of the “incurable” type.

The distinction between “curable” and “incurable” jury arguments has always been one of difficult application. As stated in Wade v. Texas Employers’ Ins. Ass’n., 150 Tex. 557, 244 S.W.2d 197 (1951), the distinction might be grounded on the difference between improper jury argument which is inflammatory which is curable while on the other hand, jury argument that brings before the jury information that they do not have and under the law are not supposed to have, is considered “incurable”. The Wade case concluded by stating “We judge by degree of the vice, not merely the subject matter of the argument.”

In Texas Sand Company v. Shield, 381 S.W.2d 48 (Tex.Sup.1964), the Supreme Court held that regardless of the type or category in which an argument might fall, the true test is as laid down in Texas Employers’ Ins. Ass’n. v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954). That test has been consistently followed by the Texas Courts since the adoption of Rules 434 and 503, T.R.C.P. In the Haywood ease, the Supreme Court stated:

“The true test is the degree of prejudice flowing from the argument — whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict.”

See also Aultman v. Dallas Railway & Terminal Co., supra; Shoppers World v. Villarreal, 518 S.W.2d 913 (Tex.Civ.App. —Corpus Christi 1975, writ ref’d n. r. e.).

The attorney for Hartford should have objected the first and every time thereafter that the offensive argument was made. He took no steps to secure appropriate instructions from the trial court. He should have requested that the jury be instructed to disregard the same. We think the argument here, when considered in the light of the entire record, does not present a case of reversible error. This is particularly true in view of the fact that in addition such argument by appellee was provoked and/or invited by opposing counsel. Counsel for Hartford during the trial attempted to portray himself as being “out-gunned” because he was faced with, as counsel for Hartford, “Mr. Cannon from a very fine law firm, Kronzer, Abraham and Watkins, and the County Judge (Bert Huebner), and the District Attorney, (Mr. Jack Salyer).” He also stated to the jury during voir dire examination that he believed his company (Hartford Accident and Indemnity Company) “was right”.

Much latitude is allowed counsel in replying to his opponent’s argument. Hence, an argument which is provoked or invited by an opponent’s argument is not objectionable when directed to the subject matter introduced by the opponent, even though without such provocation it might have been improper. 3 McDonald’s, Texas Civil Practice § 13.14 (1970). Texas Employers’ Ins. Ass’n. v. Hicks, 237 S.W.2d 699 (Tex.Civ.App.—Amarillo 1951, writ ref’d n. r. e.). Thus, improper argument can be invited by argument of opposing counsel. Texas Sand Co. v. Shield, supra; Tennison v. Letto, 469 S.W.2d 287 (Tex.Civ.App.—Austin 1971, writ ref’d n. r. e.). Such was the case here.

We find, under these circumstances, that the nature of the arguments complained of were not such as were reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. In any event, Hartford has not so demonstrated. Rule 434, T.R.C.P.; Prasek v. Dudley, 395 S.W.2d 876 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.).

Since we have found that the jury’s answer to the issue on medical expenses is not supported by the evidence to the extent of $199.15, it is accordingly ordered that a remittitur of such amount be filed by Thurmond in this Court within fifteen (15) days following the announcement of this decision, whereupon this Court will reform the judgment of the trial court by the amount of such remittitur and affirm the judgment; otherwise, we will be required to reverse and remand for a new trial the entire cause, for the error committed. Rule 440, T.R.C.P.; Southern Pacific Company v. Stanley, supra; Prudential Corporation v. Bazaman, 512 S.W.2d 85 (Tex.Civ.App.—Corpus Christi 1974, no writ).

All points of error have been carefully considered. The judgment of the trial court is affirmed on the condition that the remittitur in the amount of $199.15 is filed by Thurmond in this Court within fifteen (15) days following the announcement of this decision.

OPINION ON MOTION FOR REHEARING

The appellant Hartford Accident & Indemnity Company contends on motion for rehearing that reversible error was present when the appellee Thurmond injected into the case the fact that the Industrial Accident Board had made a ruling concerning Thurmond. The appellant contends that the inference is clear, although erroneous, that the Industrial Accident Board had given Thurmond all that he was asking for. The appellant insurance company argues that if reversible error is not presented by the final arguments of plaintiff’s counsel in this case, there is no way a workmen’s compensation carrier can receive a fair and impartial trial and its right to object is, therefore, defeated. Citing Federal Underwriters Exchange v. Bickham, 138 Tex. 128, 157 S.W.2d 356 (1942); Texas Employers Insurance Association v. Brown, 226 S.W.2d 233 (Tex.Civ.App.—Amarillo 1949, writ ref’d n. r. e.); Looney v. Traders General Insurance Company, 231 S.W.2d 735 (Tex.Civ.App.—Fort Worth 1950, writ ref’d n. r. e.); Tanner v. Texas Employers Insurance Association, 438 S.W.2d 395 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.); Associated Employers Lloyds v. Landin, 205 S.W.2d 662 (Tex.Civ.App. —Eastland 1947, writ ref’d n. r. e.).

We have again reviewed the evidence adduced during the trial and reread the arguments made before the jury. When the matter first came out, it was brought out by the insurance company’s own witness. The appellant did not object to the answer as not being responsive nor did the appellant ask the court to have such answer stricken from the record and the jury properly instructed. The arguments made by plaintiff’s attorney are not to be condoned. We do not wish to be understood as approving the conduct of counsel in placing or attempting to place before the jury either directly or indirectly the facts that an award had been favorable to the claimant. However, upon such jury argument appellant’s attorney again refused to object and did not make any of the customary safeguards to reduce the alleged prejudicial effect upon the jury.

We have reread all of the cases cited by the appellant, all but one did not present reversible error. The conditions in all of the cases were more prejudicial, in our opinion, than that which is before this Court in this case. Particular attention is made to the Supreme Court cases of Federal Underwriters Exchange v. Bickham, supra and Tanner v. Texas Employers Insurance Association, supra, where the Supreme Court held that there was no' reversible error.

We have again considered all of appellant’s points in its motion for rehearing and they are overruled.

OPINION ON FILING OF REMITTITUR

This Court suggested that appellee Wilburn Phil Thurmond remit the amount of one hundred ninety-nine dollars and fifteen cents ($199.15) as set forth in our original opinion. The appellee, through his attorneys, has filed a remittitur in the amount suggested and authorized in the opinion of this Court.

Therefore, in accordance with the opinion and the judgment of this Court heretofore rendered, the judgment of the trial court is here reformed to the extent of the amount remitted by appellee Thurmond.

The judgment as herein reformed is now affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    FORT WORTH LLOYDS, Appellant, v. Raul GARZA et al., Appellees.
    No. 935.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 19, 1975.
    Rehearing Denied Aug. 29, 1975.

      James R. Harris, Harris, Cook, Browning & Barker, Corpus Christi, for appellant.
    •Pat Morris, Nicolas & Morris, George D. Shaffer, Corpus Christi, for appellees.
   OPINION ON MOTION FOR REHEARING

NYE, Chief Justice.

We withdraw the original opinion delivered on May 15, 1975, and substitute the following opinion limiting the facts discussed in this opinion to those alleged in the complainant’s petition which was filed against Fort Worth Lloyds’ insureds, Raul Garza and his wife, Carmela G. Garza.

The appellant Fort Worth Lloyds in its motion for rehearing contends in three (8) points of error that this Court erred in considering facts other than the allegations contained in the complainant’s petition in determining the insurer’s duty to defend a lawsuit against one of its insureds. The insurance company argues that in determining the duty of a liability insurance company to defend a lawsuit, such responsibility depends solely upon the allegations contained in the complainant’s petition against its insured, without any reference to what the parties testify concerning the true facts. Fort Worth Lloyds say that we were in error in considering any facts outside the complainant Reasonover’s petition.

Generally speaking, a suit to decide the question of the insurance company’s responsibility to defend is brought by its insured after the insurance company has refused to defend. In the case before us, the insurance company brought a declaratory judgment action to determine its responsibility to defend in advance. Where such course of action is taken by an insurance company and facts are developed, we see no reason why such facts cannot be used along with those contained in the complainant’s petition. This would be a calculated risk the insurance company would take when it seeks a declaratory judgment. See Firemen’s Insurance Co. Of Newark, New Jersey v. Burch, 426 S.W.2d 306 (Tex.Civ.App., Austin, 1968), rev’d on other grounds, 442 S.W.2d 331 (Tex.Sup.1969) where facts were considered in determining the company’s duty to defend.

However, because the trial court’s findings of fact are not as clear as they should be and because we arrive at the same result by restricting our consideration to the allegations in Reasonover’s petition only we withdraw our original opinion and substitute this opinion in its place. We have considered all of the appellant’s points of error in its motion for rehearing and they are overruled. Our substituted opinion follows.

This is a declaratory judgment suit involving the question of the insurance company’s duty to defend the owner of a standard home owners’ policy. The trial court rendered judgment against the insurance company. The company appeals to this Court.

Fort Worth Lloyds Insurance Company issued a standard home owners’ policy to Raul Garza and wife, who own property and reside in Corpus Christi, Texas.

On or about March 4,1972, J. L. Reason-over was seriously injured while attempting to start a pump for Garza. Upon attempting to start the pump, it blew up in Reason-over’s face causing extensive injuries to his face. Reasonover then filed suit against Garza for personal injuries alleging that:

“On or about March 4, 1972, the Defendant was the owner of a tract of land in Starr County, Texas near the town of Rosita. Located on the property was an irrigation pump. On said date the Plaintiff was assisting the Defendant’s wife in starting the irrigation pump when the guard on the drive shaft came off and struck the Plaintiff on the face causing him severe injuries. Plaintiff would show that the Defendant, Raul Garza, had shortly prior to the incident disassembled the irrigation pump. When putting it back together, he was unable to find the screws for the guard and used instead a piece of coat hanger wire. Plaintiff would further show that the wire holding the guard in place over the drive shaft was not open and obvious and that he was not warned of such defective condition. Plaintiff alleges that the act of the Defendant in using a piece of coat hanger wire in reassembling the pump was negligence and the proximate cause of the Plaintiff’s injuries.”

After Reasonover filed suit against Garza and Garza was served with process, he notified his insurance company of the suit and furnished them with a copy of the petition calling on the company to defend him. The insurance company then filed this suit in the form of a declaratory judgment against Garza, his wife, and Reasonover asking the court: 1) to declare that the insurance company be relieved of any responsibility to defend the insured in the suit filed by Rea-sonover or any suit which may name the insureds as defendants; 2) to declare that under the circumstances, the insured has no coverage for the accident in question; and 3) to declare that the insurance company will have no liability for any judgment which may be rendered against defendants Raul Garza and wife, Carmela G. Garza, in favor of J. L. Reasonover.

The trial court entered judgment against the insurance company declaring: 1) that the insurance company was obligated to defend Garza in the suit filed by Reason-over; 2) that the insurance policy in question covered Garza and his wife and was applicable to the injuries sustained by Rea-sonover; 3) that the insurance company was obligated to pay any judgment rendered on behalf of Reasonover against Garza to the limits of the liability provided in the policy.

The insurance company appeals under one point of error that: the case should be reversed because the trial court erred in failing to render judgment for the insurance company when it was alleged by claimant Reasonover that he was injured by the malfunction of an irrigation pump located on land owned by the insured Garza and the parties had contracted in writing that there would be no coverage for such an occurrence.

The contract provided that the Garzas would have personal liability insurance under coverage D of their policy as follows:

“To pay on behalf of the Insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage, and the Company shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim or suit as it deems expedient.”

The insurance policy excluded certain coverages. It stated that:

“Coverage D shall not apply:
. 3. to any act or omission in connection with premises, other than as defined, which are owned, rented or controlled by an Insured, but this does not apply with respect to bodily injury to residence employee arising out of and in the course of his employment by the Insured; . . . ”

The definition of premises in the policy is as follows:

“The term ‘premises’ means, unless otherwise indicated:
1. all premises where the Named Insured or his spouse maintains a residence and includes private approaches thereto and other premises and private approaches thereto for use in connection with said residence, except business property and farms;
2. individual or family cemetery plots or burial vaults;
3. premises in which an Insured is temporarily residing, if not owned by an Insured;
4. vacant land, other than farm land, owned by or rented to an Insured. Land shall not be deemed vacant following the commencement of any construction operations thereon unless such operations are being performed solely by independent contractors in connection with the construction of a one or two family dwelling for the Insured.”

The insurance company argues that it is entitled to a judgment as a matter of law because Reasonover’s suit alleged that the Garzas owned the premises in question and that as a matter of law, the policy of insurance excluded premises “owned” by the insured “other than as defined”. In this connection, the appellant states that since the insured and his spouse maintained a residence in Corpus Christi and the accident occurred in Starr County, the land where the accident occurred would not fit the definition of “premises”. The company argues that it does not have a duty to defend Garza because the accident in question did not: 1) occur at the residence or any private approach to the residence of the insured (exclusion number one above); 2) that it was obvious that the accident did not occur at an individual or family cemetery plot (exclusion number two above); 3) that since the land in question was allegedly owned by the insured and the insured had a permanent residence, it could not be a temporary residence of the insured (exclusion number three above); and finally because the accident did not occur on “vacant land” owned by the insured, there was no coverage. The insurance company says that the land described in the complainant’s petition could not be vacant as a matter of law because an irrigation pump was located on it.

The first question posed by insurer in its declaratory judgment suit presents a question involving an “actual controversy”, that being whether the insurance company had a duty to defend its insured in an existing tort claim against him. There being an actual controversy existing with respect to insurer’s duty to defend its insured, the question was a proper one for determination in a suit for declaratory relief. See Campbell v. Commercial Standard Insurance Company, 502 S.W.2d 232 (Tex.Civ.App., Fort Worth 1973, writ ref’d n. r. e.). Thus, our only question in this respect is whether the trial court erred in declaring that the insurer had a duty or obligation to defend its insured, Garza, (in Cause No. 115,987-B, styled T. L. Reasonover, Plaintiff, vs. Raul Garza, Defendant) pending in the 117th District Court of Nueces County, Texas. The trial court found the duty to defend did exist. We hold that the trial court was correct in this determination.

Our Supreme Court in Heyden Newport Chemical Corporation v. Southern General Insurance Company, 387 S.W.2d 22 (Tex.Sup.1965), stated: “that in determining the duty of a liability insurance company to defend a lawsuit the allegations of the complainant should be considered in the light of the policy provisions without reference to the truth or falsity of such allegations and without reference to what the parties know or believe the true facts to be, or without reference to a legal determination thereof.” Thus, the issue involved depends not upon ultimate liability, established after trial on the merits, of the insurer for the damages sustained; but upon the provision of the policy wherein the insurer bound itself to defend any suit against the insured alleging damages within the terms of the policy even though such suit may have been groundless. In such instance, in testing the liability of the insurer to defend, proof is not material. Liability depends upon the allegations of the plaintiff’s petition (in the damage action). Argonaut Southwest Insurance Company v. Maupin, 500 S.W.2d 633 (Tex.Sup.1973); Maryland Casualty Co. v. Moritz, 138 S.W.2d 1095 (Tex.Civ.App., Austin 1940, writ ref’d).

In order then, to determine the liability of an insurance company to defend a lawsuit against one of its insureds, the allegations of the complainant should be considered without reference to their truth or falsity; without reference to what the parties know or believe the true facts to be; and without reference to a legal determination thereof. The final and ultimate deci- . • sion,as to an insurance company s duty to defend is not limited to a narrow construction of a complainant’s petition. In testing the liability of the insurer to defend, proof of the allegations are not material. If such a petition alleges facts, liberally construed, that would bring the case within the coverage of the policy without reference to the validity of the allegations, the insurer must defend its insured. Heyden Newport Chemical Corporation v. Southern General Insurance Company, supra. In the Heyden case, the Supreme Court set out the following statement:

“Where the complaint does not state facts sufficient to clearly bring the case within or without the coverage, the general rule is that the insurer is obligated to defend if there is, potentially, a case under the complaint within the coverage of the policy. Stated differently, in case of doubt as to whether or not the allegations of a complaint against the insured state a cause of action within the coverage of a liability policy sufficient to compel the insurer to defend the action, such doubt will be resolved in insured’s favor.” (Emphasis added.)

Following these guidelines, we find that the facts alleged are sufficient to require the insurance company to defend the Garzas. Although there may be some question as to whether or not the injury occurred on “vacant land” for which coverage is provided, such doubt must be resolved in the insured’s favor. The word “vacant” means unoccupied. An isolated irrigation pump sitting on the land in question does not make the land occupied. For the above reasons, we hold that the complainant stated facts sufficiently in the pleadings so as to make Fort Worth Lloyds obligated to defend its insureds.

With respect to the other questions posed by the insurer in its declaratory judgment suit, i. e., whether the injury sustained by J. L. Reasonover was covered by the terms of the policy, and whether the insurer was obligated to pay any judgment which may thereafter be rendered in favor of Reasonover against Garza, such questions do not present real controversies between the parties, which should actually be determined by the judicial declaration sought. If Reasonover should fail to establish his case against Garza, these two questions raised by insurer’s suit would be purely academic. The above questions are in essence hypothetical questions which are not a proper subject in a declaratory judgment suit. There is no liability issue now in controversy except that involved in the personal injury case pending between J. L. Reasonover and Garza. If any controversy should subsequently arise between the insured and his insurer as to coverage of the policy, it can be litigated subsequent to a determination of whether or not Garza had committed a tort which would render him liable in damages to Reasonover. Since this determination of liability is still pending in the untried case of Reasonover v. Garza, the existence of a controversy as to “coverage” is dependent upon the happening of a future event.

In Firemen’s Insurance Company of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.Sup.1968), our Supreme Court expressly approved the holding in Prashker v. United States Guarantee Company, 1 N.Y.2d 584, 154 N.Y.S.2d 910, 136 N.E.2d 871 (1956), where a similar question existed to that now before us. The New York Court held in a unanimous opinion that the insurance company was bound to defend the Weissman action but that the suit to declare whether or not the insurance company was liable on the policy was premature and must await the disposition of the Weissman action. See also American Fidelity & Casualty Co. v. Service Oil Co., 164 F.2d 478 (4th Cir. 1947).

The Declaratory Judgments Act gives the court no power to pass upon hypothetical or contingent situations, or to determine questions not then essential to the decision of an “actual controversy”, even though such questions may in the future require adjudication. Firemen’s Insurance Company of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.Sup.1968); California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960). There must be a real controversy between the parties, which will be actually determined by the judicial declaration sought. United Services Life Insurance Company v. Delaney, 396 S.W.2d 855 (Tex.Sup.1965); Board of Water Engineers Of The State v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722 (1955).

The courts do not make mere hypothetical adjudication where there is no jus-ticiable controversy presently before the court, or where the existence of a controversy is dependent upon the happening of future events. Firemen’s Insurance Company of Newark, New Jersey v. Burch, supra. We believe that these two questions posed by the insurer in its declaratory judgment suit presented no justiciable controversy because the existence of a controversy was dependent on the happening of a future event, a determination of whether Garza was liable in the tort action filed by Reasonover. Until that determination is made, there exists no actual controversy for which declaratory relief with respect to those two questions posed above is proper.

The judgment of the trial court relating to the duty of the insurance company to defend is affirmed. That portion of the judgment purporting to declare the rights and obligations of the insurance company under its contract of insurance issued to Raul Garza is reversed. The costs on appeal are adjudged one-half (½) to appellant and one-half (⅛) to appellees.

      . . . and the company shall defend any suit against the insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent.”


author: SPURLOCK, Justice. MASSEY, Chief Justice.

text:
    Mary Martha WALKER, Appellant, v. Webb WALKER, Jr., Appellee.
    No. 17639.
    Court of Civil Appeals of Texas, Fort Worth.
    July 11, 1975.
    Rehearing Denied Sept. 12, 1975.

      Garrett, Burkett & Bodoin, and Robert R. Bodoin, Fort Worth, for appellant.
    Walker, Bishop & Larimore, and John R. Lively, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is an action for divorce instituted by Mary Martha Walker against her husband, Webb Walker, Jr. She sought a dissolution of this marriage of 30 years, a division of the property of the parties and the recovery of reasonable attorney’s fees. Petitioner filed an inventory showing that the community owned a home along with the furnishings therein. The respondent likewise filed an inventory showing the same homestead and contents and some minerals and producing royalties, personal property, and extensive liabilities, probably exceeding the value of the assets. The transcript reflects that the parties had executed a note secured by a deed of trust lien upon the homestead. The holder of the lien was made a party to the suit and alleged that the parties were in default in the payment of their monthly obligations and prayed that the lienholder be permitted to foreclose under the deed of trust lien. The court appointed a receiver who took charge of the homestead and sold same, paid the lienholder, and all expenses of the sale, and deposited $45,472.71 into the registry of the court, being the net proceeds of the sale.

Thereafter, on December 27,1974, after a trial before the court without a jury, the trial court granted the divorce, divided the property, ordered certain costs and attorney’s fees to be paid out of the money in the registry of the court, and then divided the remaining money in the registry of the court equally between the parties. The court then ordered these parties to be obligated for and responsible for all debts incurred by them individually since the date of the filing of this divorce suit and ordered the right of contribution and indemnity to the other spouse to carry out the terms of the above provision.

The judgment then provided as follows:

“The Court further finds that all obligations testified to by the parties incurred prior to January 31, 1974, are community debts.

“It is therefore ORDERED that both parties are hereby charged with all community debts incurred prior to January 31, 1974, and both parties are charged with liability therefor.”

There is no statement of facts, nor do we have before us findings of fact or conclusions of law.

The wife’s sole point of error asserts, “The trial court erred in failing to order a division of the estate of the parties, since it failed to decree liability for the bulk of the parties’ community debts.”

This point of error is rather vague and overbroad. If we are able to determine the matter complained of by examining the statement and argument thereunder then we will consider the point of error. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943). By this point of error appellant either asserts that the trial court wholly failed to divide the debts or that the trial court abused its discretion in the manner in which the debts were divided.

It is our opinion that the judgment did charge both parties with liability for the payment of the community debts. If the above point of error means that the trial court erred in wholly failing to divide the community debts then it is overruled.

An analysis of the judgment reveals that the court found that all the obligations incurred during the marriage up to the time the divorce was filed were community debts as reflected by the testimony during the course of the trial. The court then took into consideration the testimony of the parties and then charged each of the parties with liability therefor. Without a statement of facts or findings of fact and conclusions of law we can only assume that each of the parties contracted community debts under circumstances making each jointly liable and that was the effect of their testimony in the trial court.

In a decree of divorce the court has the duty to order a division of the estate of the parties in a manner that the court deems just and right, having due regards to the rights of each party. Texas Family .Code, Sec. 3.63. Such division of the property must take into consideration all the equities, the nature of the property, the debts secured by liens on property awarded to each, the liabilities, and the ability of the parties to manage the property that is encumbered in order that the property will not be lost to both spouses by foreclosure. Such division must be done in subordination to the rights of creditors. Creditors without lien have no interest in the disposition of the exempt property of the debtor, but as to property not exempt, and upon which creditors might lawfully levy a writ for the satisfaction of their demands, the court has no power to award same to their prejudice. Broadway Drug Store of Galveston v. Trowbridge, 435 S.W.2d 268 (Houston Tex.Civ.App., 14th Dist., 1968, no writ hist.).

The trial court had no power in this divorce proceeding to diminish or limit the power of the creditors to proceed against either of the spouses for payment of their debts that such creditors had prior to the granting of the divorce.

Bearing in mind the limitations above stated, the trial court then did have the authority, as between the parties only, to determine their liability to third party creditors. “The power to partition, having due regard for the community debts, necessarily includes the power to order one of the parties to pay such debts, for which just allowance should be made in the partition.” Speer’s Marital Rights In Texas, Divorce, Section 840 (1961 Ed.). See also Cusack v. Cusack, 491 S.W.2d 714 (Corpus Christi Tex.Civ.App., 1973, writ dism.).

If appellant, by its point of error, is asserting that the trial court abused its discretion in the manner in which the community debts were divided then same is overruled.

To overturn a judgment dividing the property incident to the decree of divorce, the appellant must show an abuse of discretion by the trial court in that the disposition was manifestly unjust and unfair. Such awards will not be disturbed unless there is a clear abuse of discretion. Weaks v. Weaks, 471 S.W.2d 454 (Beaumont Tex.Civ.App., 1971, dism.). There is a presumption in favor of the trial court’s exercise of its discretion regarding division of property in a divorce action. Waggener v. Waggener, 460 S.W.2d 251 (Dallas Tex.Civ.App., 1970, no writ hist.). Absent a statement of facts, we must assume the trial court has rendered the correct judgment in the absence of fundamental error. Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363 (1945). Fundamental error obtains if the trial court assumes jurisdiction where none exists or the error complained of adversely affects the interest of the public generally. Godde v. Wood, 509 S.W.2d 435 (Corpus Christi Tex.Civ.App., 1974, ref., n.r.e.). Absent findings of fact and conclusions of law, the courts of civil appeals must affirm the judgment if it can be upheld on any legal theory which has support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup., 1962).

On the basis of the record before us we cannot hold that the trial court abused its discretion in rendering the judgment that it did. We find no fundamental error.

In view of our holding and the disposition of the case appellee’s motion to dismiss the appeal is overruled.

The judgment is affirmed.

MASSEY, C. J., concurs.

MASSEY, Chief Justice.

I am of the opinion that by the wife’s point of error she intended to show her right to have anticipatory adjudication of right to contribution from her husband of a “percentage certain” in the event she should pay community debts. I am of the opinion, however, that if such was her intent there was failure to raise it by point of error.

In other words, we might for simplification assume for a hypothesis that the wife’s brother was owed $20,000.00 by the parties as the true community indebtedness; that the wife desired that her brother be paid and that she paid him with her part of the money awarded by the judgment. By the judgment she was charged with the indebtedness; and likewise her husband was charged. The husband, of course, wouldr not owe anything to his former brother-in-law after he was paid. Nor would the husband owe any reimbursement to the wife by reason of her having paid the indebtedness, at least by the judgment from which appeal was taken.

It is easy to perceive that injustice might result from hypothesized circumstances such as set out above. There would in the case set forth be a grave question whether the wife would find the door of the Courthouse open to her in an attempt to obtain relief at law, i. e., if the husband was unwilling to reimburse her in any degree.

• I believe it would be well for the trial court, in a case such as this, to make provision for apportionment and/or contribution as applied to any indebtedness which by judgment is charged against both parties should such be paid by one of them. Complications are involved when the provisions of our new Family Code relative to what community property is and when it is to be deemed such. Reference would necessarily be made thereto in any case where a similar question might arise.

Nevertheless I agree that the judgment should be affirmed, the point of error being insufficient to make the right to reversal depend upon an answer to a question such as the one stated by hypothesis.


author: SHANNON, Justice.

text:
    USLIFE LIFE INSURANCE COMPANY OF TEXAS, Appellant, v. STATE BOARD OF INSURANCE et al., Appellees.
    No. 12250.
    Court of Civil Appeals of Texas, Austin.
    July 16, 1975.
    Rehearing Denied Sept. 24, 1975.

      Royce R. Till, Fulbright & Jaworski, Houston, Paul D. Connor, Flahive & Ogden, Austin, for appellant.
    John L. Hill, Atty. Gen., John W. Odam, Jr., Asst. Atty. Gen., Austin, for State Board of Insurance.
    Will D. Davis, Heath, Davis & McCalla, Austin, J. Robert Sheehy, Sheehy, Lovelace & Mayfield, Waco, for U. S. Life Ins. Co.
   SHANNON, Justice.

The principal inquiry in this cause concerns the placement of the burden of proof in an appeal from an order of the State Board of Insurance to district court pursuant to Tex.Ins.Code Ann. art. 1.04(f).

Appellant, USLife Life Insurance Company of Texas, filed suit in the district court of Travis County to set aside the order of the State Board of Insurance which denied appellant’s application for a change of name. After withdrawing the case from the jury, the court entered judgment which, in effect, affirmed the order of the State Board of Insurance. Appellees are the State Board of Insurance and the U. S. Life Insurance Company. We will affirm the judgment of the district court.

In its trial petition appellant pleaded that it was a legal reserve life insurance company, domiciled in Texas. Before 1973, appellant’s corporate name was “Great National Life Insurance Company.” Appellant is a part of the USLife Corporate system which maintains affiliate operations in many states. Appellant alleged further that “USLife” is a coined word and is displayed in advertising’ of the various companies within the USLife Corporate System. The parent USLife Corporation and its fifteen subsidiaries, which have adopted the US-Life name, have spent much effort and expense in establishing and publicizing that name.

In September of 1972, appellant, desirous of changing its name to reflect its affiliation with the USLife Corporation, filed a name reservation with the State Board of Insurance requesting the reservation of the name “USLIFE Life Insurance Company of Texas.” The said reservation was granted, but it expired by the terms of the applicable statute one hundred-twenty days later in January, 1973. Appellant requested an extension which was granted, but appellant again permitted that name reservation to expire one hundred-twenty days later in May, 1973. Appellant again requested the name reservation, but the Commissioner of Insurance denied the request with the explanation that the name reservation must be relinquished for a period of at least thirty days. After the expiration of thirty days, appellant filed anew its request for the name reservation which the Commissioner of Insurance granted on August 14, 1973. To effectuate its change of name, appellant had to amend its articles of incorporation and its certificate of authority. On September 14, 1973, the Commissioner of Insurance approved appellant’s charter amendment, and he approved appellant’s application for an amended certificate of authority on October 4, 1973.

In its responsive pleading, U. S. Life Insurance Company alleged that by February of 1973, it had lodged a protest with the Board authorities concerning appellant’s name reservation for the stated reason that the proposed name was likely to mislead the public. Appellee U. S. Life Insurance pleaded further that it had owned and used its name for twenty-five years and that its name was a valuable asset and right. Both appellees averred that because of appellant’s “numerous filings and lapsing thereof” the protest “. . . was not brought forward into the file upon which action was taken by the personnel of the State Board of Insurance, and the said charter amendment was granted inadvertently by the said Board.”

On October 5, 1973, counsel for appellee company learned of the entry of the order of the Commissioner approving the amendment of appellant’s certificate of authority. On October 12,1973, appellee company filed with the Commissioner of Insurahce its application for reconsideration of his orders. On the same date, appellee company perfected its appeal of the Commissioner’s orders to the State Board. In connection with the appeal of those orders, appellee company requested that the Board defer action on its appeal until the Commissioner of Insurance had been given an opportunity to pass on its application for reconsideration.

After hearing upon appellee’s request for reconsideration, the Commissioner found that he “. -. . was not at the time of his initial approval of the name ‘USLIFE Life Insurance Company of Texas’ administratively advised of the protest filed [by appellee] to the granting and use of the name.” In addition, the Commissioner found that appellant’s requested name “. . . to be so similar to that of another insurance company as to be likely to mislead the public . . Based upon the evidence presented at the hearing, the Commissioner by order dated November 21, 1973, withdrew his approval of appellant’s proposed name and “reversed and voided” his former orders.

Appellant then appealed the Commissioner’s order of November 21 to the State Board of Insurance. After hearing, the State Board entered its order on March 8, 1974, which found that “. . the action of the Commissioner previously taken [the order of November 21, 1973] and which was appealed from, was the correct action in the matter, and it does therefore, uphold and approve the ruling of the Commissioner.” It was the order of the State Board of Insurance, dated March 8, 1974, that appellant appealed to district court.

At the trial of the case, appellant’s position was that appellee had the burden of proof because the law provides for a de novo appeal from the orders of the State Board of Insurance, and in accordance with that position appellant refused to go forward with the evidence.

Judgment was entered for appellee. The judgment recited, among other things, that “. . . the Plaintiff [appellant] having the burden of proof, opened but put on no evidence and immediately rested, and the Court, on its own Motion, having withdrawn the case from the jury, and the Court . . . finds that, as a matter of law, the Plaintiff, USLIFE LIFE INSURANCE COMPANY OF TEXAS, failed to meet its burden of proof to show that the names are not so similar as to be likely to mislead the public.” The judgment provided further that as a matter of law the name USLife Life Insurance Company of Texas was so similar to U. S. Life Insurance Company so as to be likely to mislead the public.

Appellant assails the judgment by many points of error. The disposition of the appeal, however, is controlled by the points of error one and two which state: (1) the court erred in placing the burden of proof upon appellant, because the law provides for a de novo appeal from orders of the State Board of Insurance, and (2) the court erred because appellees had the burden of proof and failed to meet that burden.

Appellant’s argument is that the appel-lees had the burden of proof in the trial court to show that the proposed name is so similar to that of another company as to be likely to mislead the public, and that because appellees introduced no evidence, the court should have entered judgment in appellant’s favor.

In support of its position, appellant says that upon entry of the orders by the Commissioner approving the amendment of its articles of incorporation and its certificate of authority, appellant acquired a vested right to employ the name, “USLIFE Life Insurance Company of Texas.” The appeal to district court nullified the final order of the State Board of Insurance dated March 8, 1974, and appellant claims that the appeal had the effect of “reinstating” appellant’s right to the name. As authority appellant relies primarily upon Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686 (Tex.1964), Cortez v. State Board of Morticians, 306 S.W.2d 243 (Tex.Civ.App.1957), writ dism’d w. o. j., 157 Tex. 649, 308 S.W.2d 12 (Tex.1957), State Board of Medical Examiners v. Mann, 413 S.W.2d 382 (Tex.1967), and Texas State Board of Medical Examiners v. Haynes, 388 S.W.2d 258 (Tex.Civ.App.1965, no writ).

Appellant’s argument refuses to recognize two corollaries to the propositions asserted by it: (1) upon the entry of the orders of the Commissioner approving the amendment of appellant’s articles of incorporation and certificate of authority, appellant acquired a right to employ the applied-for name subject to the right of aggrieved parties to appeal to higher administrative authority and finally to the courts, and (2) upon de novo appeal to the district court all of the administrative proceedings were “nullified.”

The entry of the Commissioner’s orders approving the amendment of appellant’s articles of incorporation and certificate of authority were subject to the appel-lee company’s right of appeal to higher administrative authority and the courts. Before appellant could gain any right to the name applied for, the formal action of the agency authorities must have become final and effective. The appellee company’s applications for reconsideration and appeal filed with the Commissioner and the State Board of Insurance, respectively, prevented the Commissioner’s action from becoming final and effective.

Rule 40 of the “Rules of Practice and Procedure before the State Board of Insurance and the Commissioner of Insurance” provides in part that, “Any party aggrieved by an action of the Commissioner of Insurance may request a rehearing.” Rule 28 of those Rules provides, among other things, “Any person or party aggrieved by a final order or ruling entered without hearing may, within 20 days from notice or knowledge of such order or ruling, demand hearing, and such hearing will be granted. For good cause shown, the Commissioner may grant a hearing even though demand is not made within such 20-day period.” As previously stated, on October 12, 1973, appellant requested a reconsideration of the Commissioner’s order. The motion for reconsideration was filed within twenty days of the entry of the order amending the certificate of authority, and under Rule 28, the Commissioner was permitted to reconsider the order amending appellant’s articles of incorporation though filed more than twenty days from September 14, 1973.

With respect to appeals from the orders of the Commissioner to the State Board of Insurance, Rule 22 provides, “Appeals to the Board for review of actions of the Commissioner of Insurance must be made within 30 days from the date of the writing evidencing the official action or order complained of, but for good cause shown, the Board may allow an appeal after that date.” On the same date, October 12, 1973, when it filed its motion for reconsideration with the Commissioner, appellee appealed the Commissioner’s order to the Board. By the terms of Rule 22 the Board could consider both orders of the Commissioner. But it was not necessary for the Board to consider those orders because the Commissioner set aside his former orders on November 21, 1973. Appellant then appealed the order of that date to the Board, and as noted previously, the Board affirmed the Commissioner’s order on March 8, 1974.

Upon an appeal of an administrative order to the district court for a trial de novo the administrative order is nullified. Southern Canal Co. v. State Board of Water Engineers, 318 S.W.2d 619 (Tex.1958), State Board of Medical Examiners v. Mann, supra, State Board of Insurance v. Republic Nat. Life Ins. Co., 384 S.W.2d 369 (Tex.Civ.App.1964, writ ref’d n. r. e.). Manifestly, the same principal of law requires that in a de novo appeal, not only the final order of the agency is nullified, but also all of the preceding intra-agency proceedings are nullified.

Tex.Ins.Code Ann. art. 3.02 § 1(2) is concerned with the problem of name-similarity in insurance companies. That section provides in part “. . . the name selected shall not be so similar to that of any other insurance company as to be likely to mislead the public.” Appellant had the burden in the agency proceedings to demonstrate that the name it selected was not so similar to that of any other insurance company so as to be likely to mislead the public. Likewise, in the trial de novo in district court, appellant had the burden of demonstrating the lack of similarity of the proposed name to that of appellee insurance company.

Appellant’s cases, Scott v. Texas State Board of Medical Examiners, supra, Cortez v. State Board of Morticians, supra, State Board of Medical Examiners v. Mann, supra, and Texas State Board of Medical Examiners v. Haynes, supra, are not contrary to our holding. In each of those cases there was involved an effort by an agency to revoke or suspend an existing license of a physician or mortician. In each of those cases the regulatory agency had the burden in the administrative hearing to establish its' case. Upon appeal of the administrative order to the district court for trial de novo, the agency, similarly, had the burden of establishing its case.

Unlike the parties in the license revocation cases, appellant had no existing right to the proposed name at the commencement of the administrative proceedings. The only “right” appellant ever received was conferred by the September and October orders of the Commissioner, and that “right” was subject to appellee’s right of reconsideration by the Commissioner and appeal to a higher administrative tribunal and to the courts. On reconsideration ap-pellee was successful in obtaining a favorable order which the State Board sustained. Upon appeal to the district court for a de novo trial, all of the agency orders, conferring any and all “rights,” were nullified, and all issues were to be determined anew.

The judgment is affirmed.

Affirmed.

O’QUINN, J., not participating.


author: PHILLIPS, Chief Justice.

text:
    Andrew M. MOORE, Appellant, v. SABINE NATIONAL BANK OF PORT ARTHUR, Texas, Appellee.
    No. 12289.
    Court of Civil Appeals of Texas, Austin.
    July 16, 1975.
    Rehearing Denied Sept. 24, 1975.

      James G. Boyle, Boyle & Yeager, Paul Waggoner Jones, Jr., Austin, for appellant.
    William F. Turman, Miller, Autry, Gotcher & Turman, Austin, for appellee.
   PHILLIPS, Chief Justice.

The primary problems in this appeal concern the construction of the penalty provisions of the Texas Consumer Credit Code, Tex.Rev.Civ.Stat.Ann. Art. 5069-8.01 and Art. 5069-8.02.

On May 8, 1972, appellant Andrew M. Moore, entered into a retail installment contract for the purchase of a mobile home from Oak Hill Mobile Homes. The contract obligated appellant to pay the sum of $11,-242.80, which was to be paid in 120 consecutive monthly installments of $93.69 each, beginning June 15, 1972. The total sum was comprised of the amount financed, $6,425.00, and a finance charge (time-price differential) of $4,817.80. The amount of finance charge (time-price differential) was within that permitted by Art. 5069-7.03.

Appellee, Sabine National Bank of Port Arthur, Texas, purchased the installment contract from Oak Hill Mobile Homes. Some time before March 23,1973, appellant defaulted on the monthly payments, and on that date appellee sent a notice of acceleration to appellant and made demand upon him for total amount due under the contract.

In March of 1974, appellee sued appellant in the district court of Travis County. In its original petition appellee alleged that the sum of “$11,842.96” was due and payable, and prayed, in part, that appellee show cause why a writ of sequestration should not issue. A few days after filing its petition, appellee caused to be filed its affidavit for sequestration in which it was declared that appellant was indebted to ap-pellee in the sum of “$11,842.96.”

In the trial court appellant specially pleaded that he was entitled to setoff for the total amount of his down payment and the number of monthly payments which he had paid. That pleading also included a cross-action against appellee averring in part (1) that appellee, by not rebating any unearned finance charge, had charged in excess of double the amount of time-price differential authorized by the Texas Consumer Credit Code, and (2) that appellee in violation of the Code had failed to disclose that the physical damage insurance was not sold at rates fixed or approved by the State Board of Insurance. Appellant prayed for a recovery in the terms of Art. 5069-8.02 for the amount of twice the time-differential, $9,635.60, and for $6,425.00 as an additional penalty because appellant had charged in excess of double the authorized rate of time-price differential, and for attorney’s fees.

After trial, the court, sitting without a jury, entered judgment in favor of appellee in the sum of $6,017.38, for attorney’s fees of $902.61, and for foreclosure of appellee’s security interest in the mobile home. Appellant does not complain of that part of the judgment. The judgment provided further that appellant take nothing by reason of his cross-action.

Upon request, the court filed findings of fact and conclusions of law. Among the findings of importance to this appeal are that appellee matured the contract on March 27, 1973 and at that time appellant was entitled to a rebate of the unearned finance charge of $3,957.89. The court found further that appellee “. never intended to charge or collect any unearned finance charge,” and that it was the regular business practice of appellee to rebate and figure unearned interest either after repossession of the collateral or upon final judgment. The court concluded, among other things, that the statements contained in appellee’s notice of intention to repossess, its original petition and its sequestration affidavit did “. . . not constitute charging of unearned time-price differential or finance charge.” (Emphasis added)

Appellant’s brief contains six points of error. Points one and two attack the court’s conclusion that the statements contained in appellee’s notice of intention to repossess, in its original petition, and in its sequestration affidavit did not constitute charging of unearned time-price differential or finance charge. We agree with appellant’s position that, as a matter of law, such actions on the part of appellee constituted a “charging” of unearned time-price differential.

In 1967 the legislature enacted the Texas Consumer Credit Code, Tex.Rev.Civ.Stat. Ann. Art. 5069-1.01 et seq. Prior to the enactment of the Code, credit sales, such as motor vehicle transactions, were not subject to any limitation as to the amount of time-price differential or other charges which might be imposed upon the purchaser. In response to the need for regulation in this area of commerce, Chapters 6 and 7 of the Code were enacted. Chapter 6 governs retail installment sales, and Chapter 7 regulates motor vehicle installment sales. Articles 8.01 and 8.02 of the Code provide severe penalties for violations of Chapters 6 and 7 and the chapters regulating loan transactions.

Article 5069-8.01 provides:

“Any person who violates this Subtitle by contracting for, charging or receiving interest, time price differential or other charges which are greater than the amount authorized by this Subtitle, or by failing to perform any duty specifically imposed on him by any provision of this Subtitle, shall forfeit to the obligor twice the amount of interest or time price differential and default and deferment charges contracted for, charged or received, and reasonable attorneys’ fees fixed by the court, provided that there shall be no penalty for a violation which results from an accidental and bona fide error.” (Emphasis added)

Article 5069-8.02 provides in part:

“Any person who violates this Subtitle by contracting for, charging or receiving interest, time price differential or other charges which are in the aggregate in excess of double the total amount of interest, time price differential and other charge authorized by this Subtitle shall forfeit to the obligor as an additional penalty all principal or principal balance, as well as all interest or time price differential, and all other charges, and shall pay reasonable attorneys’ fees actually incurred by the obligor in enforcing the provisions of this Article . . . .”

(Emphasis added)

Appellant says that the statements in ap-pellee’s notice of intention to repossess, its original petition, and its sequestration affidavit constituted a “charge” as contemplated by Art. 5069-8.01 and 8.02.

In response appellee argues that the term, “charging,” as used in Art. 5069-8.01 and 8.02 is dependent upon the excessive charge having been contracted for in the installment contract or upon the excessive charge having been received before the penalties in those articles may be invoked. Appellee relies upon Greever v. Persky, 140 Tex. 64, 165 S.W.2d 709 (1942), and Mays v. Pierce, 154 Tex. 489, 281 S.W.2d 79 (1955). Appellee points to the fact that the language of Art. 5069-8.01 is the same as that of the general usury statute, Art. 5069-1.06. The predecessor of Art. 5069-1.06 was Tex. Rev.Civ.Stat.Ann. Art. 5073. Article 5073 described usury in terms of “shall have received or collected upon any contract.” Article 5069-1.06 (and Art. 5069-8.01) provides “contracted for, charged or received.” Appellee submits that the addition of the word, “charged” and the deletion of the word, “collect,” in Art. 5069-1.06 contemplated a situation wherein the excessive charge was actually contracted for, or “charged,” though not collected by the lender. Appellee says, in conclusion, that the addition of the word, “charged” in Art. 5069-1.06 was not intended to change a legal contract into one tainted by usury by way of a subsequent unilateral demand of the lender which called for an amount in excess of that called for by the installment contract.

As may be seen, the statutory penalty set forth in Article 5069-8.01 and 8.02 is invoked when excessive interest time-price differential or other charges have been contracted for, charged, or received. To accept appellee’s construction of Article 5069-8.01 and 8.02 would, in our opinion, render meaningless the word “charging.”

In construing a statute it is presumed that every word has been used for a purpose. A cardinal rule of statutory construction requires that- each sentence, clause, phrase, and word be given effect if possible. Eddins-Walcher Butane Company v. Calvert, 156 Tex. 587, 298 S.W.2d 93 (1957).

The terms, “charged” or “charge” have received some judicial construction. In Monroe Loan Society of Pennsylvania v. Morello, 160 Pa.Super. 418, 51 A.2d 347 (1947), it was held that a charge could be “the debiting of an amount due or more certainly, an act by the promisee constituting or implying a demand for its payment, e. g., the inclusion in a statement of indebtedness submitted to the debtor.” Also see: Credit Finance Service, Inc. v. Able, 127 A.2d 396 (D.C.Mun.Ct.App.1956), and Reese v. Termplan, Inc., Bolton, 125 Ga.App. 473, 188 S.E.2d 177 (1972). In Credit Finance Service v. Able, supra, the court, in construing a Maryland statute regulating small loans (Art. 58A, § 16(d)), stated: “The statute invalidates the loan contract if excessive interest is 'charged, contracted for or received.’ It is clear that unlawful interest charges had been entered on the company’s records and on the borrowers’ loan book. * * * Unlike some general usury laws this statute does not require that unlawful interest be actually paid and received in order to constitute a violation.” (Emphasis added)

We observe that some other jurisdictions have adopted consumer protection laws which, likewise, have added the concept of “charged” to the traditional requirements of “contracted for” or “collected” (sometimes “received”) found in general usury laws. A non-exhaustive list includes: Annotated Code of Maryland, Art. 58A § 16(d); Georgia Code Annotated, § 96-903(d); Hawaii Revised Statutes, § 476-33; 121½ Illinois Annotated Statutes (Supp.), § 581; Ohio Revised Code, § 1317.06; Annotated Laws of Massachusetts (Supp.), c. 255D, § 11(B); New Mexico Statutes, 50-16-3; and Florida Statutes Annotated, § 520.34.

An examination of appellee’s notice of intention to repossess, its original petition, and its sequestration affidavit, in our opinion, shows a demand by appellee upon appellant to pay the “total of payments,” a sum of $11,242.80, which includes all of the finance charge, both earned and unearned.

The evidence shows that on the dates that appellee demanded payment of the entire contract the unearned amount of the finance charge was approximately $3,814.59. The evidence further discloses that the interest being charged appellant varied from an annual percentage rate of 25.68% to 128.59% depending on factors not material here. The legal charge applicable to appellant’s contract was 12.40%. As is seen, the evidence demonstrates that appellant was charged an amount exceeding twice the legal rate of interest applicable to the contract.

Appellant has three points of error concerning whether appellee’s charging the excessive time-price differential was the result of an accidental or bona fide error. Point of error three is that the court did not find facts sufficient to sustain the judgment on the basis that the charging of the excessive time-price differential was the result of an accidental or bona fide error. Points of error four and five are that there was no evidence, or insufficient evidence, that the charging of an excessive time-price differential was the result of an accidental or bona fide error.

Art. 5069-8.01 provides that no penalty lies against any person who charges excessive time-price differential if such act resulted “from an accidental and bona fide error.” Appellee had the burden to plead accidental or bona fide error, Tex.R.Civ.P. 94, and, likewise, to prove that defense. McDonald v. Savoy, 501 S.W.2d 400 (Tex.Civ.App.1973, no writ). The only finding of the trial court which could relate to that defense reads, “Plaintiff, Cross-Defendant [appellee] never intended to charge or collect any unearned finance charge.”

If appellee intended to do the acts which constituted the charging of the excessive time-price differential, then those acts were not the result of an accidental or bona fide error. See Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161 (7th Cir. 1974). A creditor may not excuse its violation of the statute by a showing that it did not intend to violate the act. See Townsend v. Adler, 510 S.W.2d 175 (Tex.Civ.App.1974, no writ), Haynes v. Logan Furniture Mart, Inc., supra.

Practically all of the evidence bearing upon accidental or bona fide error came from the testimony of Charles Wetherbee, attorney for appellee’s collection agent, upon examination by appellant’s counsel. Wetherbee admitted that he had examined and read the appellee’s affidavit for sequestration before he had sworn to it. Though Wetherbee recognized the figure in the sequestration affidavit, $11,842.96, to be the same as that in the installment contract, his response was that the appearance of that sum in the affidavit was, “As best I recall, it is just another, you know, honest mistake on this thing.”

In reviewing appellant’s no evidence point, we view the evidence in its most favorable light in support of the finding of accidental and bona fide error, considering only the evidence and the inferences which support the finding and rejecting the evidence and inferences which are contrary to the finding. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914). Following the rule stated, we conclude that the “honest mistake” testimony of Wetherbee was some evidence of accidental and bona fide error with respect to the “charge” represented by the sequestration affidavit.

The notice of intention to repossess and appellee’s original petition were also charges within the purview of Art. 5069-8.-01. As there was no evidence to show that those charges resulted from an accidental and bona fide error, we will sustain point of error four.

Appellant’s final point is that the district court erred in finding that the County Mutual Insurance was sold to appellant at rates fixed or approved by the State Board of Insurance. We need not pass upon the point for the reason that an examination of the prayer for relief in appellant’s trial pleading shows that appellant did not pray for the assessment of penalties for that violation.

Appellant did not attack that part of the judgment awarding appellee $6,017.38 and attorneys’ fees of $902.61 and foreclosing appellee’s security interest in the mobile home. Accordingly, that part of the judgment is affirmed. The part of the judgment ordering that appellant take nothing by reason of its cross-action against appel-lee is reversed and judgment is here rendered for appellant for penalties pursuant to Article 5069-8.01 and 8.02 in the total sum of $16,060.60. Appellant’s cause of action for attorney’s fees is ordered severed and that cause is remanded to the district court for a new trial. Appellant shall pay one-half of the costs of court and the appel-lee shall pay the remaining one-half of the costs of court.

Affirmed in part, reversed and rendered in part and reversed and remanded in part.

      . Townsend v. Adler did not involve Art. 5069-8.01, but instead Art. 5069-1.06. The provisions in both statutes are substantially the same.