author: KLINGEMAN, Justice.

text:
    Betty Jo WISHERT, Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
    No. 16134.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 14, 1979.

      Thomas S. Hoekstra, Branton & Mendel-sohn, Inc., L. Wayne Scott, San Antonio, for appellant.
    Emilio M. Garza, Clemens, Spencer, Wel-maker & Finck, San Antonio, for appellee.
   OPINION

KLINGEMAN, Justice.

This is á workers’ compensation case. Appellant, Betty Jo Wishert, suffered an injury to her right hand on or about March 14, 1972, but did not file a claim for compensation until January 22,1977, some four years and ten months after the injury. The Industrial Accident Board denied her claim on June 29, 1977, noting that this claim had not been filed within the six-month period required by article 8307, Texas Revised Civil Statutes. Notice of appeal from the administrative determination was given and appellant filed her petition in the District Court of Bexar County, Texas. Appellee, Southern Farm Bureau Casualty Insurance Company, filed a motion for summary judgment asserting that it was entitled to judgment because appellant had failed to file her claim for compensation within the required six-month statutory period and, as a matter of law, no good cause existed for the failure to file such claim. The trial court granted appellee’s motion for summary judgment.

Under the workers’ compensation statutes in Texas, compensation is barred if the filing of the claim is not made within six months from the date of the injury, unless the claimant has good cause for delay in filing the claim. In relying upon good cause for failure to file within the prescribed statutory period, the claimant is charged with the duty of prosecuting his claim with that degree of diligence which a reasonable prudent person would have exercised under the same or similar circumstances. Watson v. Texas Indemnity Insurance Co., 147 Tex. 40, 210 S.W.2d 989 (1948); Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948); Hartford Accident & Indemnity Co. v. Hardin, 252 S.W.2d 752 (Tex.Civ.App.—Fort Worth 1952, writ ref’d).

To satisfy the statutory requirement, it is not enough to prove that good cause for failure to file existed during the six-month period; the injured worker owes a duty of continuing diligence in the prosecution of his claim and must prove that good cause for failure to file continued up to the date of filing. Texas Casualty Insurance Co. v. Beasley, 391 S.W.2d 33 (Tex.1965), cert. denied, 382 U.S. 994, 86 S.Ct. 576, 15 L.Ed.2d 480 (1966); Texas Employers Insurance Ass’n v. Hancox, 162 Tex. 565, 349 S.W.2d 102 (1961); Consolidated Casualty Insurance Co. v. Perkins, 154 Tex. 424, 279 S.W.2d 299 (1955); Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053 (1939); Williamson v. Texas Indemnity Insurance Co., 127 Tex. 71, 90 S.W.2d 1088 (1936). Although the question of whether the claimant used the degree of diligence required is ordinarily one of fact, the evidence in a particular case may point to a lack of diligence on the part of the claimant as the only reasonable conclusion, in which event the question is to be decided as a matter of law. Texas Casualty Insurance Co. v. Beasley, 391 S.W.2d 33 (Tex.1965), cert. denied, 382 U.S. 994, 86 S.Ct. 576, 15 L.Ed.2d 480 (1966); Hawkins v. Safety Casualty Company, 146 Tex. 381, 207 S.W.2d 370 (1948).

Appellant in the present case testified by deposition. She stated that the accident for which compensation is sought occurred on March 14, 1972, while she was working at Lone Oak Grocery & Market; that at such time she was performing “custom work”— that is, cutting and wrapping meat according to customer specification — when a fellow employee “wheeled around with [a] package” and struck her, while she was walking toward a freezer, causing her right hand to slam against the back of a meat storage bin; and that the whole backside of the hand hit the wall. She further stated that shortly after the accident, the outside of her right hand was blue and swollen and that, while she could still move the hand, she could only move her fingers slightly. At her employer’s suggestion she left work on the day of the accident to see a doctor, but was unable to see Dr. Bachman, her family physician, until the following day. At that time, the doctor X-rayed her hand and reported that he found no broken bones, but told her that she had “torn ligaments.” She testified that the entire hand hurt — the backside, the inside, and the fingers. She went to see Dr. Bachman several times after the injury and he told her that it was going to take time for the hand to mend. He suggested that she start back to work gradually. After a consultation or two, Dr. Bachman referred her to Dr. Wolfe, to check the continued swelling of the hand. The visit to Dr. Wolfe took place more than a week after the accident. Dr. Wolfe also X-rayed the hand and told the appellant that her hand would be “fine” and that she should return to work. He further advised that she should “take it easy” and “would have no more trouble with [her] hand.” She saw Dr. Bachman one more time shortly thereafter and he told her it was “all right to go back to work” and that she “would definitely not have any more problems with [her] hand.” It was after this visit that he released her from his care.

Further testimony revealed that after the doctor had released her she returned to work at Lone Oak Grocery for a few days, but could not carry packages or trays of meat, as she was required to do in her job. She left her employment there because “it was just too hard on me to do it.” She testified that during the period from March, 1972, until May or June 1972, she received disability benefit payments, but was sent no benefits thereafter.

She further testified that on one occasion following the accident, while she was still working at Lone Oak Grocery, one of the store owners there told her that she wanted appellant “to talk to the insurance man” who happened to be at the store that day. As requested, appellant spoke with the insurance representative, who asked about her hand and told her to follow the doctor’s advice. The “insurance man” told her that he would take care of everything for her and further stated that if she needed anything to call him, and that he would do everything he could to help.

She testified that she next took a job at a drugstore in LaVernia, commencing on or about July 5, 1972, and that she continued to work there until about Christmas of the same year. She stated that she could satisfactorily perform her duties at the drugstore because there was no heavy lifting involved. She stated that sometime in February or March, 1973, she bought a tavern and continued to work in it until January, 1974, when she and her family moved to Yoakum. Appellant did not consult a doctor regarding her hand during the entire period of time after she left Lone Oak Grocery until she moved to Yoakum. When asked if she was still experiencing pain in her hand at such time, she responded that it was “discomforting every once in awhile, especially if [she] crowded it a whole lot and it would swell.”

Sometime after she moved to Yoakum early in 1974 she began working at Handy-Stop Grocery, where the only difficulty she encountered in performing her duties was an occasional swelling of her hand. Shortly thereafter she left her employment at Handy-Stop and began working as a checker at another such store on a part-time basis. The only problem she encountered in the latter job was that her “hand would get awfully tired . . . and it would swell.” According to her testimony, this was approximately three years after the 1972 accident at Lone Oak Grocery. Thereafter, she went to work for a tannery, but did not work there long because of an allergy to wool. During the time she worked at the tannery her hand “bothered” her, but again, she did not consult a doctor. She quit working at the tannery in April or May, 1976. She stated that about this time she began having difficulty doing housework, including moving of furniture, and that when she would pick up a glass of tea she would drop it. She stated that she started dropping glasses in May, June or July of 1976.

When asked what she did thereafter she stated that she “kept trying to do things,” but that the problem continued to the point where she could not sleep at night and her husband urged her to seek the advice of an attorney in Yoakum regarding the matter. The Yoakum attorney referred her to an attorney in San Antonio. During this period she continued to experience problems with her hand and her arm.

She testified that she went to see the San Antonio attorney and he filed a claim for compensation on the day she first sought his advice, sometime in January, 1977. She testified that shortly after seeing the second attorney she consulted a Dr. Merian in Yoakum who X-rayed her hand and told her he felt it was not treated properly in the first place and that her ligaments were definitely torn.

In addition, she testified that she did not see any other doctor concerning her arm or her hand during the period of time between May, 1972, and the early part of 1977 when she first saw Dr. Merian. She further stated that she never went back to the “insurance man” to give notice of any late developing disability or to file a compensation claim therefor.

By five points of error appellant asserts that the trial court erred (1) in holding that she did not have continuous good cause for the late filing of her claim; (2) in entering judgment for appellee on the basis that appellant did not have continuous good cause for late filing of her claim; (3) in entering summary judgment for appellee since appellant’s lack of knowledge created a fact question on the issue of good cause; (4) in entering summary judgment for ap-pellee on the question of good cause since a fact issue existed as to the reasonableness of appellant’s belief in the doctor’s statement that she would be well and sustain no residual injury; and (5) in entering summary judgment for appellee on the question of good cause because a fact question existed as to whether an agent or employee of appellant’s employer or of appellee represented to appellant that a compensation claim had been filed in her behalf.

With regard to appellant’s contention that good cause existed for the late filing due to her reliance on the alleged statement by her employer that a compensation claim would be filed on her behalf, the applicable law is set forth by the Supreme Court in Allstate Insurance Company v. King, 444 S.W.2d 602 (Tex.1969), where the Court found that:

there is evidence to support the jury’s finding that plaintiff reasonably believed his employer would process and handle his insurance claims for injuries. Under the facts of the present case, however, this belief could not constitute good cause for the delay of almost sixteen months in filing his claim ... A person of ordinary prudence would not remain totally inactive and unconcerned about his rights as long as plaintiff did in sole reliance upon the employer’s promise to file a claim.

Id. at 604-05. See also Consolidated Casualty Insurance Co. v. Perkins, 154 Tex. 424, 279 S.W.2d 299 (1955); Phariss v. Texas Employers Insurance Ass’n, 290 S.W.2d 289 (Tex.Civ.App.—Dallas 1956, no writ); New Amsterdam Casualty Co. v. Keller, 62 S.W.2d 637 (Tex.Civ.App.—Fort Worth 1933, writ dism’d).

Appellant contends further that she relied on statements by her doctor that her injury was not of a serious nature, as well as representations that she would have no residual injury. The pertinent testimony has been hereinabove set forth. There are decisions involving either the situation where an employee has been told by his employer that he will take care of the injured person’s claim, or where the injured person has relied on statements by his doctor that the injury is not of a serious nature. Either situation would excuse a reasonable delay in filing the required claim. In our opinion, the Supreme Court decisions in Texas Casualty Insurance Company v. Beasley, 391 S.W.2d 33 (Tex.1965) and Texas Employers’ Insurance Association v. Brantley, 402 S.W.2d 140 (Tex.1966) are controlling here.

Beasley involved statements made to the injured person by a doctor as to his condition. The claim was not filed until nineteen months after the date of the injury. The Court assumed, without deciding, that good cause for failure to file existed until Beasley was hospitalized in July, 1962. He did not file his claim until November, 1962, a period of approximately four months thereafter. The Court held as a matter of law that the claimant did not exercise the degree of diligence in the filing of his claim which a reasonable and prudent person would have exercised under the same or similar circumstances and that as a matter of law no good cause existed.

Brantley addressed a situation where the claimant testified that he did not believe he had a serious injury, and where the doctor told him that it was a strain and that his condition would improve. The injury occurred in February, 1958, but Brantley did not file his claim for benefits until July, 1960, some two years and four months after the injury. Again, as in Beasley, the Supreme Court assumed, without deciding, that good cause existed until Brantley’s hernia “completely broke down” around April, 1960. He did not file his claim for compensation benefits until July 7, 1960, a period of slightly in excess of three months thereafter, which was held under these circumstances to be too long a time for a person who is both reasonable and prudent to stand by and do nothing about filing a claim for compensation benefits and that no good cause existed as a matter of law.

In this case before us claimant was injured on March 14, 1972, but failed to file her claim until January 22,1977, a period of approximately four years and ten months. Assuming, without deciding, that good cause existed until the end of July, 1976, appellant still did not file her claim until January 22, 1977, a period of almost six months.

Although the doctors, upon whose advice appellant asserts she relied, told her shortly after the accident that her hand would be “fine,” in actuality she continued for a period in excess of four years thereafter to have problems with her hand, including pain and swelling and an inability to pick up articles in connection with her several jobs. During this entire period of time she never consulted a doctor about her hand or contacted appellee. In May, June, or July, 1976, she began experiencing additional difficulties with her hand, which resulted in increased pain and swelling, the dropping of glasses, inability to move certain household furniture, and trouble sleeping at night. Despite all this, she failed to file her claim until January 22, 1977, a period of almost six months.

We hold that the evidence in this case shows as a matter of law that appellant did not exercise the degree of diligence in the filing of her claim for compensation which a reasonable prudent person would have exercised under the same or similar circumstances. Therefore, no good cause existed to justify the claimant’s delaying the filing of her claim until January 22, 1977.

The judgment of the trial court is affirmed.

      . This is the date of filing reflected by the records of the Industrial Accident Board and in the proceedings on the motion for summary judgment. Other references in the transcript and in the briefs assign the date as January 21, 1977.

      . The statute, which sets forth the requirements for notice of injury and claim for compensation, provides:
      Unless the [Texas Employers’ Insurance] Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of the injury or of the first distinct manifestation of an occupational disease; . . .For good cause the [Industrial Accident] Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the Board.
      Tex.Rev.Civ.Stat.Ann. art. 8307, § 4a (Vernon 1967).

      . Most of these cases have involved a total delay of approximately two years.

      . In Baker v. Travelers Insurance Co., 483 S.W.2d 10 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ), a mentally incompetent person failed to file her claim for seven years. The court agreed that her mental incapacity was a sufficient cause for her not filing her claim during this period, but held that failure to file her claim for a period of almost five months after removal of her mental incapacity was too long as a matter of law and affirmed a summary judgment against the claimant.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    Paul WATKINS d/b/a Paul Watkins Air-Conditioning Service, Appellant, v. William A. BEICKER, Appellee.
    No. 1179.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 22, 1979.

      Kenneth R. Barron, Barron & Hullum, Tyler, for appellant.
    John R. Brumbelow, Tyler, for appellee.
   MOORE, Justice.

This is a damage suit. Plaintiff, William A. Beicker, sued defendant, Paul Watkins, d/b/a Paul Watkins Air-Conditioning Service, for damages for personal injuries caused as the result of an explosion in a heating unit situated in the plaintiff’s home. Plaintiff alleged that he employed the defendant to repair the heating unit and in making these repairs defendant discovered that the heating unit had a malfunctioning air draft which caused the unit’s pilot light to malfunction; that defendant failed to warn him of the dangerous condition and that when he attempted to light the pilot light the explosion occurred causing him to suffer burns on his face, arms, hands and other parts of his body. He alleged that the defendant was negligent in failing to warn him of the dangerous condition of the heating unit and that such negligence was a proximate cause of his injuries. After a trial before the court, without a jury, the trial court rendered judgment in favor of the plaintiff for the sum of $763.40, from which judgment defendant perfected this appeal. The parties will hereinafter be referred to as “appellant” and “appellee.”

We reverse and render.

Upon the request of the defendant, the trial court filed findings of fact and conclusions of law. The findings of fact being material to this appeal are as follows: (a) defendant, Paul Watkins, failed to repair the unit and put it in a safe, workable condition; (b) defendant discovered, while working on the unit, that the unit had an improper air draft that caused the unit’s pilot light to malfunction; (c) that subsequent to defendant’s work, the heating unit exploded and burned plaintiff’s face and body; (d) that such improper air draft caused a collection of unburned gas inside the heating unit; (e) that the defendant failed to warn the plaintiff that such draft created a dangerous condition within the heating unit; (f) that such failure to warn plaintiff was negligence on the part of the defendant; and (g) that such failure to warn plaintiff was a proximate cause of the explosion in question. The trial court concluded as follows:

“A person who undertakes a course of employment by another and during such employment becomes aware of a situation dangerous to that person and fails to give due warning of it thus preventing the latter from conducting himself in safety may be held liable for the resulting injury, more particular [sic] where such person represents himself to be an expert in such employment. Therefore, I conclude, as a matter of law that the defendant, Paul Watkins, had a legal duty to warn plaintiff of such improper drafting.”

Appellant brings six points of error challenging each of the findings of fact made by the trial court on the ground that there is no evidence to support any of the findings except the finding that the plaintiff suffered an injury.

Appellee did not file a brief. In these circumstances, we accept as correct, without resort to the statement of facts, the statements contained in appellant’s brief relating to the facts and the record. Rule 419, Tex.R.Civ.P.; Gonzales v. Gonzales, 224 S.W.2d 520 (Tex.Civ.App.—San Antonio 1949, writ ref’d); Day v. Garland Chrysler-Plymouth, Inc., 460 S.W.2d 272, 274 (Tex.Civ.App.—Dallas 1970, no writ history); Texas Motors, Inc. v. McBee, 465 S.W.2d 234 (Tex.Civ.App.—Houston [14th Dist.] no writ history); Milam v. Langford, 533 S.W.2d 857, 859 (Tex.Civ.App.—Amarillo 1976, no writ history); Pyronauts, Inc. v. Associated Fire Extinguisher Co., 549 S.W.2d 460, 461 (Tex.Civ.App.—Fort Worth 1977, no writ history); also see Yol. 3A, Texas Digest, Appeal and Error,

In appellant’s “fact statement” in his brief, we find the following statement of facts:

“The facts that were proved in this case, or which can be reasonably surmised from probative evidence are as follows. The Plaintiff, William A. Beicker, bought a used mobile home equipped with a butane fired central heating system. During the first winter that he owned the home, the heating system operated to his satisfaction. In the latter part of November of the second year, the system showed the following symptoms of malfunction: bad odors, similar to unburned butane, emanated from the furnace and the pilot light went out repeatedly. The Plaintiff called Paul Watkins, the Defendant, to repair the unit. Paul Watkins replaced several pieces of equipment and cleaned soot from the flue of the heating unit. Soon afterward, the heating unit again began to malfunction in the same ways as before. Mr. Watkins was notified of this and returned to work on the unit. This time he brought with him another repairman to help give a more thorough cleaning of the flue. Later, Mr. Watkins was called back to light the pilot of the furnace. He came to the house when no one was home, lit the furnace and then left. When Mrs. Beicker came home, she found that the pilot was not burning and she attempted to light it but was unsuccessful. Her husband came home that evening and attempted to light the pilot. On the second attempt, an explosion or flare-out occurred, which burned Mr. Beicker’s face and other parts of his body. The record is devoid of any direct evidence as to the cause of the explosion.
“The record does not reflect that the explosion caused any damage to the mobile home. The repairman who checked the furnace after the explosion testified that he did not find any damage to the furnace attributable to the explosion; that he did not know that there had been an explosion until he was told by the Plaintiff. Following the explosion, no defects were discovered in the central heating unit which might have caused or contributed to the explosion.”

In other parts of the brief we find the following statements:

“. . . There is no evidence in the record connecting any of the work done on this service call with the flare-out or explosion nor that other parts installed at the first visit have been shown to be defective. . . . The condition of the heating unit was in a safe, workable condition at the end of the second service call according to the testimony of the two repairmen, the only expert witnesses in the case, who inspected the unit after the second service call.
“. . . The Plaintiff has not established the cause of the explosion, much less related the cause to the Defendant
“As the record stands, there is direct testimony from the repairmen that the heating unit was in a safe, workable condition after the second service call . The record leaves to our imagination and conjecture the important point of knowing whether under sortie conditions an explosion or flare-out might occur in the absence of any culpability on the part of either the repairmen or the Plaintiff ....
“. . . The direct testimony of the defendant and of Mr. McArthur, the second repairman, is that they did not know of an improper draft persisting after the second service call. In fact, the testimony from these witnesses is that there was no improper air draft following the second service call.
“The testimony of the plaintiff and his wife alleges several conditions which could be related to an improper air draft. The Statement of Facts does not show that these conditions were ever told to the Defendant. .
“. . . [Tjhere is a discussion by the Defendant of the fact that the mobile home was not skirted. He testified that the pilot light can be blown out by a gust of wind blowing under the mobile home.
“The record is entirely devoid of any testimony or other evidence about warnings issued by Paul Watkins or about lack of warnings. Whether any warnings occurred during the conversations between the parties is anybody’s guess. .
[Tjhere is no evidence in the record tending to prove negligence on the part of the Defendant. . . . ”

Upon accepting the foregoing statements as facts in the case, we fail to find any evidence that the defendant either knew or should have known that the heating unit was dangerous after he had completed making the repairs on the second service call. The evidence shows that the appellant was called to repair the heater because the pilot light continued to go out. The undisputed evidence is that it was in good working order after he made the repairs on the second service call. Although the pilot light, for some unexplained reason went out again, there is nothing in the evidence showing that appellant either did anything or failed to do anything to cause it to malfunction again. Nor is there anything to show that he did or failed to do anything to cause gas to accumulate in the unit. Insofar as this record shows, appellant, in good faith, believed that he had repaired the unit.

Notice or warning of danger is not necessary in order to avoid any imputation of negligence, where no danger is reasonably to be anticipated. 65 C.J.S. Negligence § 89, p. 1029. We find nothing in the record to suggest that appellant should have reasonably anticipated that the unit was dangerous after the time he repaired it the second time. It would be against reason to hold that just because appellant made a good faith, but unsuccessful effort to repair the heating unit, an inference could be drawn that he thereafter knew or should have known that the unit was dangerous. Such an inference would rest on nothing more than a mere surmise or suspicion that appellant knew or should have known it was dangerous and as such would be too weak to raise any issue of fact thereon. Joske v. Irvine, 91 Tex. 574, 582, 44 S.W. 1059, 1063 (1898). In the absence of any evidence of any actual or constructive knowledge on the part of appellant that the unit was dangerous, he owed no duty to issue a warning. It therefore follows that the appellee failed to discharge his burden of establishing a cause of action for negligence predicated on a failure to warn.

Even if the appellant had such a duty, there is no evidence that he did, in fact, fail to warn the appellee. According to the foregoing fact statements the record is silent with regard to whether he did or did not issue a warning. Thus, the finding that appellant was negligent in failing to warn appellee is not supported by any evidence.

Under the record before us we hold that appellee failed, as a matter of law, to establish a cause of action against the appellant. Accordingly, the judgment of the trial court is reversed and judgment is rendered decreeing that the appellee take nothing by his suit and that all cost be adjudged against the appellee.

Reversed and rendered.


author: MILLER, Justice.

text:
    Albert W. RUTH et ux., Appellants, v. IMPERIAL INSURANCE COMPANY, Appellee.
    No. A1972.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 7, 1979.

      K. Michael Mayes, Dale Harvill, Harvill & Hardy, Houston, for appellants.
    Tom A. Connally, Russell H. McMains, J. E. Williams, Jr., Fulbright & Jaworski, Houston, for appellee.
    Before MILLER, PRESSLER and SALAZAR, JJ.
   MILLER, Justice.

This is an appeal from a judgment denying Albert and Norma Ruths’ petition for declaratory judgment.

The Ruths claim that they and residents of their household under 21 years of age were insureds under a standard homeowner’s insurance policy issued by Imperial Insurance Company, and that the policy included the usual duty to defend any suit alleging personal injury and damages brought on by negligence of the named insureds as well as an obligation to pay all sums that they may become legally obligated to pay up to TWENTY-FIVE THOUSAND DOLLARS ($25,000.00). The policy expressly excluded bodily injury caused intentionally by or at the direction of the insureds.

On July 11, 1974, the Ruths filed an un-sworn petition for a declaratory judgment against the insurance company alleging that they had been sued on March 22, 1974, by several third parties [Cause No. 975,790 Eric W. Runfeldt, et ux., v. Albert W. Ruth, et al.], in a district court of Harris County, Texas; that the suit fell within the coverage of their homeowner’s policy; and that after demand the insurance company refused to honor their duty to defend or to pay any judgment within the policy limits which might be rendered against them. The Ruths’ petition included two exhibits: A photocopy of their certificate of insurance and a photocopy of the petition served them in Cause No. 975,790. They prayed for court judgment declaring the insurance company bound to defend and to pay any judgment up to and including TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) rendered against them.

The Imperial Insurance Company, in an unsworn answer, asserted a general denial; that the insureds failed to comply with the notice provisions of the policy; and that the basis of the claim was an “intentional injury”, not covered by the policy.

In a non-jury trial, the court rendered judgment denying the Ruths’ prayer for a declaratory judgment. The findings of fact and conclusion of law, in essence, stated that the plaintiffs failed in their entire burden of proof so that a legitimate controversy, a necessity to prevail in a declaratory judgment suit, was lacking.

The Ruths appeal on 18 points of error. Two separate statements of facts were submitted. The first statement is accepted by both parties and in order to clarify the problems in this appeal, it is reproduced verbatim as follows;

BY MR. HARVILL:
We would offer the plaintiffs’ original petition and the attachment thereto and incorporated thereto and incorporated therein and rest.
BY MR. CONNALLY:
Your Honor, I think that would entitle me to judgment as a matter of law. The facts alleged in the petition may or may not be true. We don’t even know there is a liability case against him or the facts are true. If that is the case we will also rest although I think that’s a mistake.
BY THE COURT:
Why don’t ya’ll give me some law on this.

This offer then by Mr. Harvill, appellants’ attorney and the response of Mr. Connally, appellees’ attorney and the statement by the Court constitutes all of the trial before the court. At this point, the trial court did not rule on whether the offer of evidence by appellant was admitted into evidence or not.

The second statement of facts appears to be a short continuation of the same trial with an objection by appellees to the receipt in evidence of the policy and arguments by both parties to the court on their respected contentions. The appellants object to this additional statement as both parties had rested. There was no further evidence offered therein and no rulings by the court. The only substance is an objection by the appellee that the proffered “policy” of insurance shows on its face that it is not complete as there are conditions and provisions in the actual policy which are not reflected in the “certificate” relied on by the plaintiffs.

It is irrelevant to our decision whether the “additional statement of facts” is part of the official record or not.

It is the responsibility of the insured to allege and prove that his claim came within the coverage sued upon. Kirk v. Standard Life & Accident Insurance Co., 475 S.W.2d 570 (Tex.Sup.1972). In the instant case, the appellants had to prove that there was a policy of insurance in effect which covered the occurrence in question as well as to negate any exclusions or limitations contained in the policy which were pled as defenses by the defendant. Sherman v. Provident Insurance Company, 421 S.W.2d 652 (Tex.Sup.1967). The plaintiffs offered their petition with the attached exhibits into evidence and rested. The admissibility of these as evidence was within the province of the trial judge and is a preliminary question of fact to be determined by the court. 1 C. McCormick & R. Ray, Texas Evidence § 2 (2nd ed. 1956); Massie v. Hutcheson, 296 S.W. 939 (Tex.Civ.App.—Amarillo 1927, writ ref’d). The trial judge neither admitted nor excluded the offer.

The person offering testimony has the burden of showing its admissibility. Luvual v. Henke & Pillot, Division of Kroger Company, 366 S.W.2d 831 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.). Further, the plaintiff’s burden of producing evidence and proving his case must include obtaining a ruling of his offer. Evidence which is not admitted cannot be considered proof in the case. LaVoie v. Kaplan, 556 S.W.2d 641 (Tex.Civ.App.—Waco 1977, writ dism’d); Carr v. Central Music Company, 494 S.W.2d 280 (Tex.Civ.App.—Austin 1973, no writ). In a non-jury trial the judge is the trier of facts so it is his prerogative and responsibility to weigh the proof and its credibility. LaVoie v. Kaplan, supra. Even if the attached petition was considered by the trial judge, he is presumed to make his decision on the competent and admissible evidence. This petition of the Runfeldts, which is before this court in transcript as allowed by Tex.R.Civ.P. 372(e), is a copy of the copy received by the Ruths. Tex.Rev. Civ.Stat.Ann. art. 3720 (1926), provides a method of authentication by certification if the original judicial record would itself be admissible. It has been held to apply to pleadings. Wren v. Howland, 33 Tex.Civ.App. 87, 75 S.W. 894 (1903, writ ref’d). Without such authentication, the attached petition has little if any value.

In the absence of competent proof of a third party’s suit which falls within the coverage of the liability of the insurance contract, the application for declaratory judgment fails. A determination of whether an insurance company is liable to pay damages on its policy in an as yet unlitigat-ed claim is not an appropriate suit for a declaratory judgment; the question of a company’s duty to defend presents a justiciable issue, if proved. Firemen’s Insurance Company of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.Sup.1968).

We need not consider any other points of error. Even if the trial court erred in all respects, of which the appellants complain, their failure to prove an essential element of their case precludes the necessity to decide these issues.

We therefor affirm the ruling of the trial court.

Affirmed.


author: PER CURIAM.

text:
    Eileen STANFORD, Appellant, v. GREGGTON MOTOR SERVICE, INC., d/b/a Aamco Transmission, Appellee.
    Motion Docket No. 2825.
    Court of Civil Appeals of Texas, Tyler.
    March 8, 1979.
    Gary R. Thomas, East Texas Legal Services, Nacogdoches, for appellant.
    John E. Sharp, Sharp, Ward, Ross & McDaniel, Longview, for appellee.
   PER CURIAM.

Appellant has moved for an extension of time in which to file the transcript and statement of facts in this court. The judgment of the trial court was signed and entered on December 14, 1978. Appellant deposited cash as his bond for appeal on December 21, 1978. Pursuant to Rule 386, T.R.C.P., the sixty-day period allowed for the filing of the transcript and statement of facts expired on February 12, 1979.

In her motion appellant states that the statement of facts was requested from the court reporter and the transcript from the district clerk on February 8, 1979, and that the transcript has not been prepared. It is incorrectly stated that the time for filing the statement of facts expires February 14. Good cause for failure to timely file the record was alleged in that appellant’s attorney, as executive director of East Texas Legal Services, was engaged in interviewing persons to fill positions in that organization and in supervising the relocation of that organization’s offices within the city of Nacogdoches, “and through inadvertence, did not file his requests for transcript and statement of facts with the District Clerk and Court Reporters until February 8,1979, and was then informed that the transcript . and statement of facts could not be prepared until April 14,1979 due to the backlog of the court reporters [sic] work.” Appellant then requests an extension of the time for filing the record until April 14, 1979. Affidavits are attached from appellant’s attorney substantiating the above statements, and from the court reporter stating that she was not requested to compile the statement of facts until February 8,1979, and that she would be unable to complete it until April 14, 1979. There is no affidavit from the district clerk. Appellee has opposed this motion, stating that appellant failed to exercise ordinary diligence and praying for denial thereof.

Rule 386, T.R.C.P., requires that appellant file the transcript and statement of facts with the clerk of the court of Civil Appeals within sixty days of the rendition of final judgment. In our opinion, appellant has failed to request the statement of facts from the court reporter within a reasonable time in that it was not requested until the 56th day after the date of the judgment. See Wigley v. Taylor, 393 S.W.2d 170, 171 (Tex.1965); Whitt v. Hartgraves, 412 S.W.2d 344, 345 (Tex.Civ.App.-San Antonio 1967, no writ); Fortune v. Fortune, 532 S.W.2d 411, 412 (Tex.Civ.App.-Austin 1976, no writ). Although it is the responsibility of the court clerk to prepare the transcript upon the filing of the cost bond on appeal, Rule 376, T.R.C.P., it remains incumbent upon appellant to file it in the Court of Civil Appeals, Rule 386, T.R.C.P. Appellant has not justified the failure to timely file the transcript. Appellant remains obligated, in our view, to promptly request the statement of facts and to timely file both it and the transcript or reasonably explain his failure to do so. See Taft v. Wolma, 541 S.W.2d 673, 674 (Tex.Civ.App.-San Antonio 1976, no writ). This obligation appellant has failed to fulfill.

Accordingly, Appellant’s Motion to Extend Time for Filing -Record is denied.


author: CADENA, Chief Justice.

text:
    In re B_ S_ L_ and R_ A_ L_, Minor Children, Appellants.
    No. 16055.
    Court of Civil Appeals of Texas, San Antonio.
    March 14, 1979.
    Rehearing Denied April 18, 1979.

      John A. Mead, San Antonio, for appellants.
    Benjamin F. Walker, San Antonio, for appellee.
   OPINION

CADENA, Chief Justice.

Respondent, mother of the two minor children involved in this case, seeks reversal of an order removing her as managing conservator of the children and appointing ap-pellee, respondent’s former husband and father of the minors, managing conservator. Petitioner and respondent were divorced on July 30,1976. The divorce decree named respondent managing conservator of the children, and petitioner thereafter filed this proceeding seeking modification of the custodial portions of the prior decree.

Respondent first complains of the exclusion of testimony which related to a “suicide attempt” by petitioner and an incident which involved the damaging of a china cabinet by petitioner. Both events occurred prior to the divorce.

In Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946 (1903), the Supreme Court of Texas said that a prior decree awarding custody of children to the father established that the father was a proper person to have custody of the children on the date of such decree and that such judgment was “res adjudica-ta.” The Court added:

The question upon the first trial in a case of a character of this is, which is the more suitable party to be intrusted with the care of the child at that time? The question in the subsequent proceeding is, which is the more suitable at the time of that trial? Since, in determining the second question, the first can not be agitated, it follows that evidence of prior conduct of either party cannot be introduced except to corroborate some evidence of similar conduct . . . since the original decree.

96 Tex. at 477, 73 S.W. at 947. A similar statement is found in Otto v. Otto, 438 S.W.2d 587, 589 (Tex.Civ.App.—San Antonio 1969, no writ).

We accept respondent’s statement that, with the exception of Green v. White, 203 S.W.2d 960 (Tex.Civ.App.—El Paso 1947, no writ), all the cases which applied the exclusionary rule announced in Wilson concerned evidence of prior misconduct of the person to whom custody was awarded by the prior decree. Respondent points out that in Green the court said that it had found no case “authoritatively holding that the status or character of the parent to whom custody was not awarded in a suit for divorce is res adjudicata, and that proof of his or her misconduct prior to the original judgment is inadmissible in a subsequent proceeding for custody.” 203 S.W.2d at 962. This inability to find an authoritative holding resulted from the fact that the Green opinion characterized as “dicta” the statement in Wilson that prior conduct of either party is inadmissible. Id. This denunciation of the Wilson language as dicta was based on the theory that in Wilson testimony of the prior conduct of both parties was admitted and the only question was whether the trial court erred in disregarding such testimony. This observation led to the conclusion that the question of the admissibility of such testimony was not considered in Wilson. However, the Green opinion concludes that the Wilson “dicta” was unequivocal, persuasive, and binding on intermediate appellate courts “until the Supreme Court holds otherwise.” Id. at 962. The evidence of misconduct by petitioner antedating the original custody decree was properly excluded.

The next complaint concerns the exclusion of certain testimony of the witness, Sandra Martin. According to the bill of exceptions, this witness would have testified that she recommended that the prior decree appointing respondent managing conservator not be disturbed. Petitioner objected to such testimony on the grounds that the witness was not qualified to express an opinion on that subject and that the proffered testimony “goes to the ultimate issue of the facts which the jury is called upon to decide.” The court excluded the testimony, explaining that the evidence was inadmissible for the reasons stated in petitioner’s objection and for the additional reason that the recommendation was based on hearsay.

The witness was permitted to testify that the court had directed that a social study be made by the Children’s Service Bureau, by whom the witness was employed, and that the witness had made such a study. She was also allowed to state that she had visited the homes of both parties and had talked with the children, respondent’s parents, persons acquainted with petitioner, the fire marshal and health authorities. She testified that she found no conditions in either home which could be considered injurious to the well-being of the children.

The testimony of the witness concerning her qualifications may be summarized as follows: (1) At the time of trial she was employed by the Children’s Service Bureau in San Antonio as an adoption case worker. The record does not indicate how long she had been so employed. (2) She graduated from Northwestern State College in Louisiana with a bachelor’s degree in elementary education in 1966. (3) She was a first grade teacher in Louisiana and subsequently was a teacher in a program for the education of deprived children in Alabama and special education programs in Alabama and New Hampshire. (4) In 1975 she returned to school and earned a master’s degree in “Family Relations and Early Childhood Development.” The record reveals neither the name of the institution nor the content of the program leading to the master’s degree. (5) Her employment with the Children’s Service Bureau requires that she “study families, investigate their homes and possibly recruit families for the adoptive placement of children.”

No hard and fast rules have been developed to help in determining whether a person who is tendered as an expert witness has qualifications sufficient to permit him to give opinion evidence on a particular matter. It is generally held that the question of qualifications of a witness is a matter entrusted to the discretion of the trial court and that the trial court’s ruling will be disturbed only in a case of clear abuse. 2 C. McCORMICK & R. RAY, TEXAS LAW OF EVIDENCE § 1401, at 235 (2d ed. 1956). We cannot say that the trial court abused its discretion in excluding the testimony in question. It cannot be said that experience as a first grade teacher or participation in programs for deprived children and “special education programs” of itself qualifies a person to evaluate environments, attributes and personalities of parents and children and other circumstances which must be considered in determining what may be for the best interest of children in custody disputes. There is no evidence indicating the length of the employment of the witness by the Children’s Service Bureau, the number of investigations she has made and the extent to which she has gained a measure of expertise in any special area as a result of studying families, investigating homes and “possibly” recruiting families for the adoptive placement of children.

Respondent’s third point on jury misconduct is likewise without merit. Respondent was cross-examined concerning an incident that occurred at the Comic Strip Lounge, which she described as a “bar” and “place for entertainment.” After she testified that she had taken her daughter there one night, she denied that the lounge could be classified as a “rough” place unsuitable for children. Counsel for petitioner then obtained ah admission from her to the effect that on the night she was there with her daughter a man had been killed in the lounge. No objection was made to this line of questioning.

On redirect examination respondent testified that the incident at the bar had taken place prior to the time she divorced petitioner. The trial court then asked counsel to approach the bench and, after an off-the-record discussion, the court instructed the jury to disregard all testimony concerning the presence of respondent at the lounge. Respondent insists that the trial court erred in not declaring a mistrial. At no time did respondent move for a mistrial. She did not object to the testimony or request that the jury be instructed to disregard it, although it might, perhaps, be assumed that such an objection and request would have been made had the trial court not acted on its own motion. The record does not support respondent’s assertion that the trial court stated that no mistrial would be granted. Neither does the record support the conclusion that the error, if any, in admitting evidence concerning the lounge incident probably resulted in an improper verdict. There is a presumption that the jury obeyed the instructions of the trial court and did not consider the testimony in question. We find nothing in the record which justifies a holding contrary to such presumption. In fact, the evidence introduced during the hearing on the motion for new trial supports the conclusion that the lounge incident was mentioned only once by one juror who was promptly rebuked and admonished by the foreman and at least one other juror. The incident was not mentioned again during the jury’s deliberations. The record, therefore, supports the conclusion that the jurors obeyed the instruction to disregard. See Port Terminal Railroad Ass’n v. Fontenot, 469 S.W.2d 299 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ).

Respondent lastly contends that jury misconduct also occurred during deliberations when one juror discussed a fact within her own personal experience. Petitioner had testified that he believed that the fact that respondent was cohabiting with a man was “bad” for the children. On cross-examination he denied that he had cohabited with his present wife prior to their marriage. When asked why he and his present wife had a joint bank account before they were married he replied that since they were going to get married they decided to open one joint bank account. On the hearing on the motion for new trial one of the jurors testified that during deliberations a juror stated that she worked for a bank and that it was not unusual for an engaged couple to open a joint bank account. Even assuming that the fact that persons contemplating marriage often open joint accounts prior to the marriage is not a fact within common knowledge, we are not persuaded that the isolated mention of such practice probably resulted in an improper verdict.

The judgment of the trial court is affirmed.

      . The distinction which forms the basis for branding the Wilson language as dicta is difficult to accept. The opinion of the Supreme Court was in answer to a certified question inquiring whether the trial court had been correct in refusing to consider testimony of the prior conduct of both parties. The Supreme Court expressly held that the trial court correctly refused to consider such evidence. It did not hold that the trial court properly refused to consider evidence of the prior misconduct of the custodial parent but had erred in refusing to consider evidence of the prior misconduct of the noncustodial parent.
      If the trier of fact is precluded from considering certain testimony, without reference to its credibility, then the admission of such testimony is an exercise in futility. To speak of admissible testimony which must be disregarded is to speak nonsense. If the distinction in Green is sound, it would follow that a court may properly instruct a jury to disregard admissible testimony. We know of no case so holding. If, in deciding the question of the existence or nonexistence of fact B, the trier of fact is precluded from considering evidence of the existence or nonexistence of fact A, the necessary conclusion is that evidence of the existence vel non of fact A is inadmissible.


author: MURRAY, Justice.

text:
    Maria QUINTANILLA et al., Appellants, v. ESTATE OF Lola Mae TUMA et al., Appellees.
    No. 16145.
    Court of Civil Appeals of Texas, San Antonio.
    March 14, 1979.
    Rehearing Denied April 18, 1979.
    • James DeAnda, Flores, Sanchez, DeAnda & Yidaurri, McAllen, for appellants.
    M. W. Meredith, Jr., William A. Aber-nethy, Meredith, Donnell & Edmonds, Corpus Christi, for appellees.
   OPINION

MURRAY, Justice.

This is a wrongful death action arising out of a head-on automobile collision. Appellants, Maria Quintanilla, widow of Rey-noldo Quintanilla, individually and as his heir, and as next friend of the minors, Rey-noldo Quintanilla, Jr., and Renee Quintanil-la, brought this suit against the Estate of Lola Mae Turna, appellee, for damages arising out of an automobile collision between Reynoldo Quintanilla and Lola Mae Turna. The collision occurred at approximately midnight on May 6, 1972, six miles south of Premont, Texas, on U.S. Highway 281. When the accident was discovered about 12:30 a. m. on May 7, 1972, all occupants of both vehicles were dead.

In response to special issues, the jury found Lola Mae Turna guilty of negligence which was a proximate cause of the collision in failing to keep her vehicle completely within the right half of the roadway. The jury also found Reynoldo Quintanilla guilty of contributory negligence which was also a proximate cause of the collision in question in failing to keep a proper lookout.

The trial court rendered judgment on the verdict that appellants take nothing, and after their motion for new trial was overruled, appellants duly perfected this appeal. We affirm the judgment of the trial court.

Appellants, in points of error one through four, claim that there is no evidence or insufficient evidence to support the jury’s finding that Reynoldo Quintanilla failed to keep a proper lookout. In considering appellants’ no evidence points, we must view the evidence in a light most favorable in support of the jury findings by considering only the evidence and inferences which support the findings and rejecting the evidence and inferences contrary to the findings. Rourke v. Garza, 530 S.W.2d 794 (Tex.1975); Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex.1975). In considering appellants’ insufficient evidence points, we must consider all of the evidence, and we may set the verdict aside only if it is so contrary to the overwhelming weight of all the evidence as to be clearly wrong and manifestly unjust. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, “No Evidence’’ and “Insufficient Evidence’’ Points of Error, 38 Texas L.Rev. 361 (1960). After examining all the evidence according to the aforementioned tests, we believe that the trial court acted properly in giving full force and effect to the jury’s findings and in entering the take nothing judgment.

The record shows that immediately before the collision Reynoldo Quintanilla was traveling in a northerly direction and Lola Mae Turna was traveling in a southerly direction on the highway. The highway in question consists of one northbound and one southbound lane each twelve feet in width with an adjoining paved shoulder. At the scene of the accident visibility is unobstructed because the highway is straight and level for some distance both north and south of this point.

Since there were no eyewitnesses to the accident, the only evidence offered on the cause of the accident came from the accident reconstruction experts called by the respective parties and from the investigating police officer.

Mr. James C. Flanagan, an accident reconstruction expert called by appellants, testified that he examined the scene of the collision on June 6, 1972, and found gouges, scratch marks, and fluid spots on the pavement. From this examination and from photographs taken of the scene, he rendered his opinion that on impact the Quintanilla car was in the northbound lane with its left wheels, both front and rear, approximately six feet from the center stripe and its right wheels almost on the shoulder. He believed that the Turna car was also in the northbound lane, its left wheels eight or nine feet over the center stripe so that the cars overlapped about four feet and came together at a small angle. He stated that at the time of impact the two vehicles were each traveling thirty to forty miles per hour.

Mr. Charles Ruble, an accident reconstruction expert, testified for the appellees.. Mr. Ruble reviewed the police officer’s report and photographs of the scene of the accident and of the automobiles. He visited the scene of the accident approximately six months after the collision. It was Mr. Ruble’s opinion that the northbound Quintanil-la automobile, which was in the southbound lane, swerved back to the right to regain the northbound lane when the southbound Tuma automobile swerved toward the center line and across which resulted in a collision on the center line.

Mr. Ernest Onderdonk, a Texas Highway Patrolman with considerable experience in accident investigation, was called as a witness by appellee. He testified that when he arrived at the scene at approximately 12:55 a. m., the occupants of both automobiles were dead. Based upon his investigation at the scene, it was his opinion that the point of impact would have been in the southbound lane within a foot or so of the center stripe. Officer Onderdonk further testified that a tire on the Quintanilla vehicle made an arc-shaped swerve mark, which originated in the southbound lane and led northward to the point of initial contact.

From the testimony of the three expert witnesses, we cannot say that the jury’s finding of improper lookout on the part of Reynoldo Quintanilla is against the great weight and preponderance of the evidence. Although Reynoldo Quintanilla was not required to anticipate negligent and unlawful conduct on the part of others, he was not entitled to close his eyes to that which would have been observed by a person of ordinary prudence in a similar situation. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); De Winnie v. Allen, 154 Tex. 316, 277 S.W.2d 95 (1955). It is also the rule that “contributory negligence is not established by evidence which is equally consistent with the exercise of the [sic] care by plaintiff, or where the inference of due care is just as reasonable as is the inference of the absence thereof.” Jordan v. City of Lubbock, 88 S.W.2d 560, 563 (Tex.Civ.App.—Amarillo 1935, writ dism’d).

The jury may determine any reasonable inferences that may be drawn from the evidence. In Lynch v. Ricketts, the Court stated, “The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it.” 158 Tex. at 492, 314 S.W.2d at 276. Under all the testimony, the jury, exercising its power to weigh the evidence, to judge the credibility of the witnesses, and to make corresponding findings, could reasonably believe that Reynoldo Quintanilla was proceeding in the southbound lane and swerved back to the northbound lane immediately before the collision. They could also infer that a reasonably prudent person exercising ordinary care for his own safety and the safety of others using the highway would have seen the oncoming automobile much sooner than he did and would not have ventured into the southbound lane.

Appellants’ last point complains of the jury’s answers to a special issue inquiring about the reasonable amount of money for funeral and burial expenses. During the trial it was stipulated that if the director of the funeral home were called to testify he would testify that $1,019.29 was a reasonable and necessary charge for funeral and burial expenses. The jury’s answer to this question was $510.

Because of the jury’s finding of contributory negligence on the part of Reynoldo Quintanilla, the error, if any, of the jury’s answer to this issue becomes immaterial. Erwin v. Guadalupe Valley Electric Co-op, 505 S.W.2d 353 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.

      . This cause of action arose before the effective date of the Comparative Negligence Act, Tex. Rev.Civ.Stat.Ann. art. 2212a (Vernon Supp. 1978-1979).


author: McKAY, Justice.

text:
    Jesse M. SCHRADER, Appellant, v. ARTCO BELL CORPORATION, Appellee.
    No. 1236.
    Court of Civil Appeals of Texas, Tyler.
    March 14, 1979.
    Rehearing Denied April 19, 1979.

      John O. Roark, David Fernandez, Jr., Temple, for appellant.
    Charles B. McGregor, Beard <& Kultgen, Waco, for appellee.
   McKAY, Justice.

This is a suit for wrongful discharge under provisions of the Workers’ Compensation Act, Articles 8306 et seq., Tex.Rev.Civ. Stat.Ann. (hereinafter referred to as the “Act”). Appellant, plaintiff below, brought this action against appellee corporation, his former employer, for allegedly having wrongfully discharged him because he filed two claims for compensation for accidental injuries sustained on the job. The Court, after disregarding the jury finding that ap-pellee had discharged or otherwise discriminated against appellant for filing the claims, granted judgment non obstante ve-redicto that appellant take nothing.

Appellant alleged in his petition that he sustained an injury on the job on January 15, 1974, which caused him to be unable to work until October 16, 1974, at which time he was released by his doctors to report for light duty work. Upon so reporting, appellant alleged that he was informed that there was no such work for him but that he would be allowed to return to work when he was able to perform his regular duties. Appellant alleged in his petition that on or about December 3, 1975, he delivered to appellee a letter from his doctor indicating that he was able to return to full duty, and was informed that he had been discharged. The reason allegedly given for the discharge was that appellant had made a claim for compensation, had hired a lawyer to represent him, and had instituted a proceeding under the Act. This, appellant alleged, constituted a violation of Article 8307c, Tex. Rev.Civ.Stat.Ann. Appellant characterized his suit as one for his reinstatement to his former position, for an injunction to enjoin appellee from precluding such reinstatement, and for past and future damages, in the sum of $10,000.00.

Appellee’s answer consisted of a general denial.

Trial was had before a jury. The evidence having shown that appellee removed appellant’s name from its roster of employees on March 31, 1975, appellant submitted a trial amendment to that effect. The charge of the court included several definitions and five special issues. Appellant moved for judgment on the verdict; appel-lee moved that the jury’s answer to special issue one be disregarded for the reason that there was no evidence to raise such issue or to sustain the jury’s finding thereon, and for judgment non obstante veredicto.

The court granted appellee’s motion to disregard the jury’s finding with respect to special issue one, stating, “the evidence to raise said issue that the jury finding in answer thereto has no support in the evidence and the argument of counsel . . .” The court found that the evidence raised no issue of fact and that a directed verdict for appellee would have been proper, and granted appellee’s motion for judgment n.o.v. Finding further that appellant’s physical condition was such that he could not perform the work of his former job, the court refused to order his reinstatement thereto. Judgment was rendered for appel-lee and that appellant take nothing by his suit. From this judgment appellant has duly perfected his appeal.

Appellant brings three points of error to this court, the first and second of which complain of the disregarding by the trial court of the finding of the jury in response to special issue one and of the granting of judgment n.o.v. Under these points he argues that the courts have established a policy of liberality in interpreting the Act to effectuate its purpose of protecting workers, that he was not allowed to return to work and was later terminated because he had filed and settled a claim for compensation, and that there was evidence sufficient to raise a jury issue concerning whether appellee had violated Article 8307c.

Article 8307c provides,
“Art. 8307c. Protection of claimants from discrimination by employers; remedies; jurisdiction
“Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding,
“Sec. 2. A person who violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation, and an employee discharged in violation of the Act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee.
“Sec. 3. The district courts of the State of Texas shall have jurisdiction, for cause shown, to restrain violations of this Act.”

Rule 301, T.R.C.P., reads in part, “upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and . . . the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence.” It follows that a jury finding may not be disregarded if there is any evidence of probative force which, with proper inferences arising therefrom, will reasonably support it. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 276 (1958); Pool v. Dickson, 512 S.W.2d 68, 69 (Tex.Civ.App.-Tyler 1974, no writ); Frost National Bank v. Nicholas and Barrera, 534 S.W.2d 927, 932 (Tex.Civ.App.-Tyler 1976, writ ref’d n.r.e.).

In order to sustain the action of the trial court in granting a motion for judgment non obstante veredicto it must be determined that there is no evidence having probative force upon which the jury could have made the findings relied on. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962). In passing upon these points we must consider the evidence in a light most favorable to the jury findings, considering only the evidence and inferences which support the verdict and rejecting the evidence and inferences which are contrary thereto. Burt v. Lochausen, supra; Grundmeyer v. McFadin, 537 S.W.2d 764, 768 (Tex.Civ.App.-Tyler 1976, writ ref’d n.r.e.).

The basic facts of this case, as elicited in the trial court, are undisputed. Appellant began working for appellee in 1970. He worked in the injection molding department from then until March, 1973, when he was promoted to assistant foreman of the chrome department. Appellant sustained a fall and injured the lower part of his back in August, 1973, while on the job. He continued to work, however, until December 17, at which time he left his job for approximately four weeks, at the behest of his physician, in order to rest his back. He was a salaried employee at that time and continued to receive his full pay while he was off work. On the very day he returned to work, January 15, 1974, he was injured a second time. His coat was caught in a machine and was wound into it until it caused the mechanism to stop. Appellant was apparently pulled against the machine and the upper part of his back was injured. Again, however, he continued to work. Due to a complaint registered by the union regarding appellant’s having been promoted ahead of other persons with more seniority, he was returned to his job in the injection molding department on March 4,1974, at an hourly wage, where he continued to work until September 13, 1974. On that day he left work apparently because of physical incapacity due to his second injury. At some time during this period, appellant filed claims for compensation under the Act and retained an attorney to prosecute them for him.

Then on or about October 15, he returned to appellee’s plant and showed to his foreman a note from his doctor indicating that he was able to do light duty work. The foreman informed him that there was no light duty work available. In reply to a letter from appellant’s attorney threatening suit for appellee’s failure to allow appellant to return to perform light duty work, appel-lee’s attorney stated in a letter dated October 18 that appellant would be allowed to return to work when he was able to perform his regular duties.

Thereafter, appellant and his attorney continued negotiations for settlement of his two claims. Agreement was reached with the insurance carrier, a settlement agreement was signed on February 16, 1975, and it was approved by the Industrial Accident Board on February 28, 1975. As a result of such settlement, appellant received $1,315 for his August 1973 injury and $9,944 for his January 1974 injury.

Appellee removed appellant’s name from its employee roster on March 31, 1975. As of April 1, 1975, the group life and health insurance coverage which appellee maintained on all of its rostered employees at its own expense was increased, with an accompanying increase in the cost of such coverage to appellee. The contract between ap-pellee and the union which collectively bargained for appellee’s employees provided,

“The following interruptions shall terminate an employee’s seniority and employment relationship with the Company and includes:
“1) Resigns or quits.
“2) Discharged for proper cause.
“3) Absence due to sickness or accident extending beyond (12) months. In the event of industrial (on-the-job) injuries, this period shall be twenty-four (24) months. This period may be extended by the Company in unusual cases.
“5. Unauthorized absence from work for more than two (2) days unless the employee notifies the personnel office by the starting time of his shift on the third day . . . . But nothing contained herein shall limit the Company’s right to discharge an employee for chronic absenteeism.”

Appellant returned to appellee’s plant on or about December 3, 1975, with a letter from a psychiatrist who had treated him, and requested that he put back to work at his regular duties. He was apparently informed then by the personnel officer for appellee that he had been discharged. The record indicates that he did not return to appellee’s plant for any purpose or have any contact with any representative of appellee regarding his re-employment between October 15,1974, when appellant requested light duty work, and December 3, 1975.

Appellant’s testimony concerning reasons he may have been given for his discharge refers to two incidents: on or about October 15, 1974, he asked for light duty work and on December 3, 1975, he asked for his regular job. With regard to the former, he testified on cross-examination as follows:

“Q [by appellee’s counsel] Did you tell your attorney that someone had told you that you couldn’t work for them as long as you had an attorney representing you?
“A [by appellant] Did I tell my attorney what, now?
“Q That you could not work for Artco-Bell as long as you had an attorney representing you in a Workmen’s Comp case?
“A Did I tell him that—
“Q Yes.
“A —are you asking me?
“Q That somebody out there told you that and you told it to your lawyer?
“A Yes.
“Q Who told you that?
“A Louis [Vittek, appellant’s foreman].”

Appellant’s testimony that his foreman, Louis Vittek, told him that he could not work for appellee as long as he had an attorney representing him is unchallenged in the record. Vittek was not called as a witness, nor was there any deposition from him.

Appellant also testified concerning his meeting with Oliver Oldham, Executive Vice-President and Personnel Officer, on December 3, 1975, as follows:

“Q . What did Mr., or did you and Mr. [Oldham] have a discussion when you took him this letter [from appellant’s psychiatrist stating that appellant said he was no longer having symptoms]?
“A Yes.
“Q What did you say to him?
“A I just gave him the letter and I told him I’d like to go back to work.
“Q What did he tell you?
“A He told me that being’s as [sic] we made a workmen’s comp settle [sic] with you, that we can’t put you back to work.”

The above quote from the record reveals that appellant testified that personnel officer Oldham told him that since a settlement of appellant’s compensation case had been made the appellee company could not put him back to work. It is undisputed that the action of appellee in removing appellant’s name from the roster of employees on March 31, 1975, effected his discharge as of that date and the jury so found.

Oldham further testified:

“Q [by appellant’s counsel] If you hadn’t gotten notice sometime prior, right prior, to March 31st ’75, that he had gotten his compensation settlement, he would not have been terminated on that date, would he?
“A I am sure that’s right.
“Q So the settlement had a lot to do with the termination, did it not?
“A It’s — that’s probably right.”

It should be noted that special issue one inquired of the jury whether between March 31, 1975, and December 3, 1975, ap-pellee “discharged or in any other manner ■discriminated against” appellant “for filing a claim or settling a claim ” under the compensation act. The affirmative answer of the jury could have been for either or both causes.

Under the rules we must follow in an n.o.v. case we hold that there is some evidence (more than a scintilla) having probative force upon which the jury could have made the findings relied on. Although there is evidence in the record tending to explain or justify actions by appellee, we must consider the evidence in a light most favorable to the jury findings, considering only the evidence and inferences which support the verdict, and we must reject the evidence and inferences contrary to the verdict. Since the trial court may render a judgment n.o.v. only when a directed verdict would have been proper, a directed verdict is not justified because of factual insufficiency of the evidence. Smith v. Texas Pipeline Co., 455 S.W.2d 346, 351 (Tex.Civ.App.-Corpus Christi 1970, writ ref’d n.r.e.). It would have been error to instruct a verdict if the evidence raised any material fact issue. Texas Employers Ins. Ass’n v. Page, 553 S.W.2d 98, 102 (Tex.1977). Appellant’s points one and two are sustained.

In his third point appellant contends that the trial court erred in refusing to order appellee to reinstate appellant to his former position as authorized by Art. 8307c because the evidence showed that he was physically able to perform the duties of that position. We overrule this point. The burden was upon appellant to establish that he was physically able to perform the duties of the job he had before his injury. The record does not reveal that he discharged that burden. At best appellant’s evidence shows that he is willing to return to work, but by his own testimony he said he could lift “up to about 50 pounds,” and he still had the same pains he had in October, 1974. There is no medical evidence in the record that appellant could on December 3, 1975, or now can, physically perform the duties of the job he had at the time of his injury.

Appellee brings three cross-points, the first of which complains that the trial court erred in permitting appellant to file a trial amendment after both parties had rested and the court' had prepared its charge and while the appellee was objecting to the court’s charge for the reason that it allowed the pleading of the appellant to change the date of the alleged discrimination from the pleaded date of December 3, 1975, to the date of March 31,1975. Appel-lee argues that the appellant learned before trial by way of depositions or interrogatories that appellant’s name was removed from the roster of employees on March 31, 1975, and that to permit appellant to file a trial amendment after the court’s charge had been prepared and while appellee was dictating its exceptions to the charge was prejudicial to appellee.

Whether to permit the filing of a trial amendment is within the sound discretion of the trial court, and its order permitting or refusing a trial amendment will not be disturbed on appeal unless it clearly appears that such discretion has been abused. City of Houston v. Riggins, 568 S.W.2d 188, 194 (Tex.Civ.App.-Tyler 1978, writ ref’d n.r.e.); State v. Beever Farms, Inc., 549 S.W.2d 223, 225 (Tex.Civ.App.-San Antonio 1977, writ ref’d n.r.e.). We perceive no abuse of discretion by the trial court. Although appellant alleged in his pleading that he was discharged on December 3, 1975, it was undisputed in the record that appellant’s name was removed from the roster of employees of appellee on March 31, 1975, and even if appellant did not file his motion for leave to file his trial amendment until the charge was prepared and appellee was objecting to it, there was no surprise to appel-lee, and we fail to see that appellee was prejudiced. Appellee’s first cross-point is overruled.

By cross-point two appellee maintains the trial court erred in submitting special issue one by including the phrase “Artco-Bell Corporation discharged or in any other manner discriminated against” appellant because such phrase was not supported by the pleadings and constituted a comment on the weight of the evidence. Argument is made by appellee that appellant’s pleading claimed only that he was discharged because he was injured on the job and was making a claim for workman’s compensation benefits, and that such pleading did not set forth any other claim or set out any discrimination against appellant, and there was no evidence to justify such inquiry concerning discrimination.

Appellant pled that appellee informed him he was discharged from his employment because he was injured on the job and was making a claim for compensation benefits, that he had hired a lawyer to represent him in his claim, and had, or had caused to be instituted a claim for compensation. Appellant also set out in his petition verbatim Art. 8307c, and then pled that appellee violated said statute. In issue one the trial court followed the language of the statute by including “or in any other manner discriminated against” appellant. Appellee argues that this language could mislead the jury in that it amounted to comment by the court that the court felt there were other matters which the jury might consider in answering issue one. We do not believe such a strained interpretation is called for. The record indicates that the discharge by appellee was the only complaint made in the evidence with reference to issue one. We do not believe that it was so misleading that the trial court committed error in submitting the issue as worded; however, if we be mistaken, we believe such error to have been harmless. Rule 434, T.R.C.P. Appel-lee’s second cross-point is overruled.

' In its last cross-point appellee contends that the trial court erred in submitting special issue two because its reference to issue one allowed the jury to consider damages which would have arisen after March 31, 1975, which the jury found to be the date of discharge, and December 3, 1975, which date had been originally alleged in the pleading, when such damages would not have been recoverable as a matter of law. Appellee argues that the manner in which issue two was submitted allows, or even instructs the jury to consider damages between March 31, 1975, and December 3, 1975; that during such period appellant made no effort to return to work, did not bring a medical statement that he was able to return to work, and now indicates he would not have gone to work earlier.

Appellant testified he earned about $6,000 per year “the last year or two” he worked for appellee, and that in 1977 he made $4,517 building houses. The record discloses that appellant was discharged (by removing his name from the roster of employees) on March 31, 1975, but he did not learn of such discharge until December 3, 1975. The jury awarded appellant $5,000 in damages. The court’s charge did not instruct the jury what might be considered in arriving at any damages. Appellant’s cause of action was for discriminatory discharge, and the damages assessed were not necessarily based upon the period from March to December, 1975. Cross-point three is overruled.

In its brief appellee also has what it calls its alternate motion to remand with instructions and a request to allow the filing of motion for new trial. There is in the record “Defendant’s Bill of Exception No. 1,” approved by the trial court, in which appellee claims there was jury misconduct and attached thereto is the affidavit of a juror. The affidavit states that several votes were taken on issue one but the jurors were about evenly divided and could not agree; that the jury then proceeded to answer issue two; that one juror then pointed out that they were not to answer the damage issue (two) unless issue one was answered “we do”; that after further discussion the jurors then voted 11 to 1 to answer issue one “We do.”

Rule 324, T.R.C.P., provides that in an n.o.v. case the appellee may bring forward by cross-point “any ground which would have vitiated the verdict or would have prevented an affirmance of the judgment had one been entered” on the verdict, including but not limited to insufficient evidence or improper argument of counsel, and the failure to bring such cross-points shall be deemed a waiver thereof except such grounds as require the taking of additional evidence.

A jury verdict may not be impeached or destroyed by questioning the jurors to ascertain whether they disobeyed or misunderstood the charge or misunderstood or misapplied the facts in evidence. Bradley v. Texas & P. Ry. Co., 1 S.W.2d 861, 863 (Tex.Comm.App., Sec. B 1928); 3 McDonald, Texas Civil Practice, Sec. 14.17 (1970). Rule 324 is not clear as to the proper procedure when there is a cross-point which requires additional evidence; however, in our view the bill of exception together with the juror’s affidavit, taken as true, would not require nor permit an examination of each juror for evidence of misconduct. The motion to remand is overruled.

Judgment of the trial court insofar as it disregards the verdict of the jury in issues one and two is reversed, and that portion of the judgment which provides appellant is not entitled to be reinstated is affirmed; judgment is here rendered that appellant recover $5,000.00 from appellee in accordance with the verdict of the jury.

      . The pertinent definitions and the special issues with the jury’s answers thereto were as follows:
      “Discharge” when used with respect to conduct by an employer, means the release, dismissal, or termination of the employee.
      “Discriminate” when used with respect to conduct by an employer, means failure to treat everyone according to the standards prescribed that is unreasonable and arbitrary action.
      SPECIAL ISSUE NUMBER 1:
      Do you find from a preponderance of the evidence that between March 31, 1975, and December 3, 1975, Artco-Bell Corporation discharged or in any other manner discriminated against Jesse M. Schrader for filing a claim or settling a claim under the Texas Workmen’s Compensation Act?
      Answer “We do” or “We do not.”
      ANSWER: We do.
      If you have answered special issue number 1, ■ “We do,” and only in that event, then answer:
      SPECIAL ISSUE NUMBER 2:
      What sum of money, if any, if paid now in cash do you find from a preponderance of the evidence would fairly and reasonably compensate Jesse M. Schrader for any such discharge or discrimination?
      Answer in dollars and cents, if any.
      ANSWER: $5.000.00
      SPECIAL ISSUE NUMBER 3:
      Do you find from a preponderance of the evidence that the plaintiffs employment with Artco-Bell was terminated on March 31, 1975?
      Answer “We do” or “We do not.”
      ANSWER: We do.
      SPECIAL ISSUE NUMBER 4:
      Do you find from a preponderance of the evidence that the plaintiff was physically able to return to full time work on December 3, 1975?
      Answer “We do” or “We do not.”
      ANSWER: We do.
      SPECIAL ISSUE NUMBER 5:
      Do you find from a preponderance of the evidence that the plaintiff Schrader failed to comply with the terms of his union contract in seeking to be returned to work on December 3, 1975?
      Answer “He failed” or “He did not fail.”
      ANSWER: He did not fail.


author: McDONALD, Chief Justice.

text:
    ARCHITECTURAL CONTROL COMMITTEE OF CANDLELIGHT PLAZA, SECTION ONE, Appellant, v. Woodrow W. VAN DUSEN, Appellee.
    No. 6011.
    Court of Civil Appeals of Texas, Waco.
    March 15, 1979.
    Walter B. Williams, Law Offices of Walter B. Williams & Associates, Houston, for appellant.
    Roland C. Kemp, Fred Parks & Associates, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Candlelight Plaza from temporary injunction enjoining the use of composition shingles on roofs of houses in the subdivision during the pendency of this suit. The trial court by its Order further found all the issues of fact to be tried on the merits of the case.

Plaintiff Van Dusen, a property owner in Candlelight Plaza, sued the Architectural Control Committee of Candlelight Plaza alleging that the subdivision had restrictions providing: “All roofs are to be wood shingle * * * no composition shingles shall be permitted”; that such “restrictions could not be amended by less than 100% of the owners in the subdivision until June 15, 1994, at which time 80% of the then owners may so amend”; that defendant purported to amend the restrictions by removing the prohibition against composition shingles and permitting the installation of composition roofs by the Architectural Committee.

Defendant Candlelight Plaza opposes the suit on the grounds that the Deed Restrictions have been successfully amended to allow for composition roofs.

After hearing the trial court entered its order enjoining the use of composition shingles on the roofs within the subdivision during pendency of suit; and by its order found:

“That the said purported amendment to said subdivision’s restrictive covenants is signed by less than 100% of the current owners of the lots of said subdivision and that the basic restrictive covenants would require 100% of the current owners to join in any effective amendment thereof prior to June 15, 1994”.

Defendant appeals on one point: “The district court abused its discretion on Temporary Injunction Hearing in entering a Temporary Injunction Order that was tantamount to a Permanent Injunction in that it found all fact issues to be tried on the merits of the case”.

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

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

And it is not required that the order granting temporary injunction should specifically set forth the reasons why the court believes it probable that the applicant will prevail on final trial. Neither is the trial court authorized to finally adjudicate the rights of the parties for “legal rights cannot be finally determined upon hearing relating to the wisdom or expediency of issuing a status quo order". Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417; McLennan & Hill Counties Tehuacana Creek Water Control & Improvement District No. 1 v. Hurst, Tex.Civ.App. (Waco) NWH, 378 S.W.2d 946; Davis v. Huey, Tex.Sup., 571 S.W.2d 859.

The issues which the court will have before it in trial on the merits are: 1) Whether the restrictions can be amended prior to June 15, 1994; 2) Whether the restrictions can be amended by 80% of the property owners prior to June 15, 1994; and 3) Whether the restrictions were successfully amended.

While the order appealed from purports to adjudicate the foregoing, there is nevertheless no showing of a clear abuse of discretion in the granting of the temporary injunction to maintain the status quo.

The order is reformed so as to delete therefrom the declarations finding fact issues to be properly adjudicated upon trial on the merits and as so modified is affirmed.

MODIFIED AND AFFIRMED.


author: HUGHES, Justice.

text:
    Esteban M. ARREDONDO, Appellant, v. The STATE of Texas et al., Appellees.
    No. 18073.
    Court of Civil Appeals of Texas, Fort Worth.
    March 22, 1979.
    Rehearing Denied April 19, 1979.

      H. Glenn Cortez, Bob Andrews, Austin, for appellant.
    John L. Hill, Atty. Gen. of Texas, David M. Kendall, Jr., First Asst. Atty. Gen., Robert Steve Bickerstaff, Jr., and Paul R. Ga-via, Asst. Attys. Gen., Austin, for appellees.
   OPINION

HUGHES, Justice.

Esteban M. Arredondo has appealed an order of the trial court sustaining special exceptions to his pleadings. His suit, which sought joint and several liability and punitive damages, was based on negligence and alternatively, on the Texas Tort Claims Act. The original defendants were: the State of Texas, Dr. Kenneth Gaver, then Commissioner of the Department of Mental Health and Retardation, Dr. Bill R. Walker, Superintendent of the Austin State School, Dr. James Armstrong, Assistant Superintendent of the Austin State School, Dr. Sung Dong Choi, a Staff Physician of the Austin State School, and Edward L. Rivers, a resident of the state school. The doctors were sued in both their individual and official capacities.

We dismiss for want of jurisdiction.

In effect the court’s ruling left the state and its agencies as defendants in the suit under the Texas Tort Claims Act, Tex.Rev. Civ.Stat.Ann. art. 6252-19 (1970). The trial court denied Arredondo’s motion for a rehearing on the special exceptions and his motion for a severance of all claims and causes of action which were the subject of the special exceptions. Arredondo then re-pled as directed by the trial court to avoid a dismissal of all of his claims and causes of action. He retained the suit against the state, Dr. Choi, who, according to oral argument, had not been served and had not answered, and Rivers.

This case arose from an incident which took place while Arredondo was employed at the state school. Rivers, a resident of the school, was alleged to have struck Arre-dondo in the eye with a rock causing a complete loss of vision in it. Officials and employees of the school were alleged to have been negligent in not having Rivers previously restrained, sedated or transferred from the school because of his violent, aggressive and dangerous behavior and assaults on employees, fellow residents and outsiders at the school.

The points of error on appeal complain of the order sustaining the special exceptions, including the requirement to replead, and the order denying a severance of the claims to which special exceptions were sustained.

We are unable to consider any of the points of error because it is apparent from the record that the order of the trial court being appealed is not a final or appealable order. The special exceptions sustained by the trial judge were directed to only a part of Arredondo’s cause of action. No final disposition of the controversy or parties was made and therefore the order sustaining the exceptions to the pleadings was not a final appealable order or judgment. Cantrell v. City of Dallas, 350 S.W.2d 358 (Tex.Civ.App.—Dallas 1961, no writ). See 3 Tex. Jur.2d Rev. “Appeal and Error — Civil Cases” § 76 (1974) and cases cited therein. Since the order appealed from does not meet the test of finality which will confer jurisdiction upon this court, this appeal must be dismissed. Mueller v. Banks, 317 S.W.2d 254 (Tex.Civ.App.—San Antonio, 1958, no writ).

Appeal dismissed.