author: KLINGEMAN, Justice. CADENA, Chief Justice,

text:
    SANTA ROSA MEDICAL CENTER, Appellant, v. James H. ROBINSON, Appellee.
    No. 15803.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 21, 1977.

      Paul M. Green, Lang, Cross, Ladon, Bol-drick & Green, San Antonio, for appellant.
    Phillip D. Hardberger, Donald J. Wal-heim, Hardberger, Branton & Herrera, San Antonio, for appellee.
   KLINGEMAN, Justice.

Appellant, Santa Rosa Medical Center, appeals from a judgment against it in the amount of $445,000.00 for damages for personal injuries allegedly suffered by appel-lee, James H. Robinson. The parties will sometimes hereinafter be referred to as they were in the trial court, but in some instances plaintiff will be referred to as “Jimmy”; Santa Rosa Medical Center as “Santa Rosa”; and the Villa Rosa Annex as “Villa Rosa.”

Trial was to a jury, who, in answer to special issues submitted, found:

1. The nursing staff of defendant was negligent in failing to contact a doctor prior to the time they did.

2. Such failure was a proximate cause of plaintiff’s hemiparesis.

3. Plaintiff suffered damages because of such failure as follows:

(a) Past physical pain and mental anguish, $15,000.00;
(b) Future physical pain and mental anguish, $100,000.00;
(c) Past loss of earning capacity, $15,-000.00;
(d) Future loss of earning capacity, $200,-000.00;
(e) Past physical impairment, $15,000.00; and
(f) Future physical impairment, $100,-000.00.

Plaintiff was a patient in the Villa Rosa Annex to the Santa Rosa Medical Center, undergoing psychiatric treatment. On November 18, 1972, at approximately 11:00 p. m., plaintiff was involved in a scuffle with a nursing assistant and sustained head injuries and an extradural hematoma developed, causing permanent brain damage. Plaintiff sued the hospital, for damages caused by the negligence of the hospital personnel in failing to timely notify a physician of the head injury, seeking damages in the amount of $350,000.00. A jury verdict in the amount of $445,000.00 resulted. The trial court, under objections, granted a post verdict trial amendment increasing the ad damnum clause to $445,000.00.

Defendant asserts 28 points of error, which can be broken down into the following categories:

1. Points of error complaining that the trial court erred in overruling defendant’s (a) motion for directed verdict, (b) motion for judgment non obstante veredicto, and (c) entering judgment for plaintiff;

2. Points of error pertaining to causation;

3. Points of error pertaining to admissibility of evidence;

4. Points of error pertaining to trial amendments;

5. Points of error permitting to jury issues submission;

6. Points of error pertaining to damages.

The parties are in some dispute as to the standard of review in this case. Defendant asserts “no evidence,” “insufficient evidence,” and “against the great weight and preponderance” points of error, and asks that (a) this case be reversed and rendered; and (b) in the alternative, that it be reversed and remanded. The whole record must be examined not only to determine whether there is some evidence to support the jury’s finding to the jury issues involved, but also to determine whether, considering all the evidence, the finding is not manifestly unjust. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); O’Conner, Appealing Jury Findings, 12 Hous.L.Rev. 65 (1974).

The testimony is lengthy and extensive and we will not attempt to set it forth in full detail. Such testimony covers the full area of plaintiff’s cause of action, including negligence, proximate cause, and damages.

PROXIMATE CAUSE

It is to be remembered that the jury found that the nursing staff was negligent in failing to contact a doctor prior to the time that they did, and that such failure was a proximate cause of plaintiff’s hemi-paresis. The trier of the fact is usually allowed to decide the issue of causation in cases of this nature (1) when general experience and common sense will enable a layman to determine the causal relationship between the event and condition; (2) when scientific principles, usually provided by expert testimony, establish a traceable chain of causation from the condition back to the event; and (3) when probable causal relationship is shown by expert testimony. Lenger v. Physician’s General Hospital, Inc., 455 S.W.2d 703 (Tex.1970).

The testimony shows that Villa Rosa is an annex to Santa Rosa. It handles psychiatric cases, some of which are in connection with drug addiction problems.

The accident here involved happened at approximately 11:00 p. m. during the night shift (11 to 7). The testimony indicates that plaintiff and George Morales, a nursing assistant, were engaged in a scuffle, and there is some testimony that plaintiff was trying to kick Morales while Morales was stooping and that Morales grabbed plaintiff’s ankle. In any event, plaintiff fell and struck his head. There is testimony by some witnesses that they heard a thumping noise. One witness stated that it sounded like a bowling ball dropping and hitting the floor, and another stated that it was like a baseball bat breaking when hitting a ball. There is testimony that plaintiff immediately complained that his head was hurting and that he vomited a number of times during the night. One nursing attendant testified that plaintiff was very lethargic — “real out of it.” There is testimony that he moaned and groaned throughout the night; that his speech was “kind of” slurred; that he was not too responsive to verbal stimuli; and that he kept complaining of his head.

There is testimony as to varying blood pressures, but generally his blood pressure was not abnormal. There is also testimony by some witnesses that plaintiff talked coherently; that he walked around; and that on occasion he went to the bathroom. The sister in charge during this shift testified that she recalled nothing at all that was unusual or alarming about plaintiff’s appearance. She did testify that she did not know that plaintiff had been vomiting and also that she thought that a doctor had been called.

A nursing care coordinator and supervisor testified that she came on duty at about 6:45 a. m.; that sometime thereafter she was told of the injury and after such report she went and looked at plaintiff; he seemed very sluggish and very lethargic; and that she made a number of tests or checks, including blood pressure, pulse, temperature, and pupils. She testified that there was nothing in the Nurses’ Record to indicate that plaintiff’s blood pressure or pulse rate had been taken between 11:20 p. m. and the next morning at about the tour report change or around 7:00 a. m., but the fact that certain signs were not documented would not necessarily mean that they were not taken. She stated she called Dr. Mathis sometime after 7:30 a. m.; and that when she called she told the doctor of her various observations, the vital signs, and so on; that the doctor said he would be out as soon as he could get there; and that the doctor did come quickly. She further testified that the head injury incident should have been documented on the Nurses’ Record, but it was not, and she stated that she would have called the doctor if she had been on duty that night. She testified that at 11:30 p. m. on November 18, Jimmy’s blood pressure was reported at 170/110, and that this is high.

A registered nurse testified that the Nurses’ Notes were incomplete in that all the vital signs should have been recorded after the accident and should have been taken every 15 minutes until Jimmy’s condition stabilized; that the doctor should have been notified; and that complaint of a headache, the vomiting, and distorted memory are all classical symptoms of a head injury.

A professor of nursing at UTSA testified that she was embarrassed and shocked when she read the Nurses’ Notes; that in a psychiatric hospital they should be very careful, and that accidents should be reported immediately; that someone in charge and a doctor should have been notified; that she would have been alarmed at the large drop in blood pressure from 11:20 to midnight; that in view of the entries that had been made throughout the night, it wasn’t particularly surprising what happened at 8:20 a. m.; that from the first entry at 11:20 through the night, a knowledgeable nurse could see that Jimmy’s condition was changing for the worse.

Dr. Edwin Mathis, a psychiatrist, testified that he had been giving Jimmy psychiatric treatment from about August 1972 until the accident. He testified that he was called by a Mrs. Stovall at approximately 8:20 a. m., who asked him if he was aware that Jimmy Robinson had been comatosive or semi-comatosive for some hours and that he had been vomiting; that he told her to get an ambulance immediately and to have Jimmy transferred to Santa Rosa; that either he or the nurse called Dr. Lee, a neurosurgeon, and that within 40 minutes both he and Dr. Lee were at the hospital.

Dr. Mathis stated that he didn’t even attempt to take x-rays; that the sympto-mology was so frightening that he wanted to have neurosurgeon present; that he was reasonably certain from the description that he obtained over the telephone that Jimmy had sustained a serious intercranial hemorrhage. He testified that if he had been called at midnight instead of 8:20 a. m. he would have definitely gone to the hospital; that he would have called Dr. Lee at that time; and that his actions would have been basically the same. He testified that he felt that the nurses should have called him long before they did; and that he should have been called at 11:20 p. m. and that he was at home at such time.

Dr. Fletcher Lee, a specialist in neurological surgery, the doctor who performed the operation on plaintiff, testified in some detail. He testified that the first contact he had with the plaintiff was on Sunday morning after the head injury; that he first carried out an arteriogram and subsequently an operation was performed to remove a blood clot that was present under the surface of plaintiff’s brain. He discussed the blood pressure readings taken during the night and stated that such readings were not particularly alarming and stated that from a review of the Nurses’ Notes, based upon such notes, he doubted that he would have ordered the transfer of the patient to the hospital at such time.

Dr. Lee testified that an arteriogram is a serious procedure in which a liquid dye is injected; that the arteriogram x-rays confirmed what he suspected, that there was an abnormal blood clot in Jimmy’s head. He stated that, based on his examination of the Nurses’ Notes, he doubted that the conditions were sufficient to justify an arterio-gram at the times covered and that, based on such notes, he doesn’t think he would have transferred Jimmy from Villa Rosa to Santa Rosa during the night. He stated that the 8:00 a. m. notes indicated increased intercranial pressure and indicated that something needed to be done. He testified that the arteriogram was performed about 10:00 a. 'm. and the craniotomy was carried out around noon with the whole procedure ending about 1:40 p. m.

On cross examination he testified that when he saw Jimmy on Sunday morning he knew at that time that there had been, in medical probability, some irreversible damage, because Jimmy had developed a dilated and fixed pupil. He further testified that if good nursing procedure had been followed, the nurses would have called a doctor at 11:20 p. m.; that a difference in an operation performed at 10:00 or 11:00 in the morning and four or five hours earlier could have made an enormous difference in the eventual outcome of the patient, and in medical probability, the difference in time would have made a difference in this case.

Dr. Lee further testified of post-operative procedures and that a number of nerve blocks were performed on Jimmy in order to relieve some of Jimmy’s spasticity; that other than nerve blocks and perhaps a very new drug on the market, there is very little that can be done about spasticity. He testified that Jimmy cannot carry out physical activities and that this would be expected to be a permanent situation.

Dr. Paul Rader, a specialist in neurosurgery, testified in considerable detail. His examination was based primarily on hospital records that were sent him, and he is of the opinion that a doctor can render a valid medical opinion from the readings of hospital records. He testified of extensive experience with regard to head injuries; that all head injuries are considered serious until proven otherwise. He stated that an extra-dural hematoma is one of the most acute emergencies in neurosurgery; and that he-miparesis is paralysis which is partial, not complete; and that Jimmy had evidence of this. He testified that blood clots are suspected in every head injury and that to determine whether a head injury is serious, there should be close observations of the patient’s vital signs, levels of consciousness, x-rays of the head, etc. He stated that the records indicate that between 11:20 p. m. and 8:00 a. m. the next morning, the only vital sign taken was the blood pressure; and that assuming this is accurate and complete, this would have been below the minimal standard of nursing care and treatment; and that the vital signs should be recorded every 15 to 30 minutes after a head injury until the condition is stabilized.

When asked whether the nurse’s delay in calling a doctor was the cause in fact of the hemiparesis he stated that he would say that it is, in a sense, that if you operate on people who have extradural hematoma early enough, they do not develop it, and a delay will increase the chances of this kind of residual paralysis.

When asked whether the failure of the nurses to call a doctor between 11:20 and 8:00 and the failure to have x-rays and diagnosis at an early stage could be a direct cause of the paralysis, he stated yes, that when you have arterial bleeding you have an increasing pressure on the brain and brain cells are going to die, with a resulting paralysis.

Dr. Rader was asked whether Jimmy’s condition could have been avoided if a doctor had been called at 11:20 p. m. He stated that in reasonable medical probability, it could have, and that it could have either been avoided or minimized; that in reasonable medical probability, the patient’s present neurological status has resulted substantially or in a substantial part, from this kind of delay. He stated that there was no doubt in medical probability that the patient’s final outcome in this case was affected by the delay and that there is a connection between the failure to call a doctor and Jimmy’s present condition of being partially paralyzed.

Our Supreme Court, in discussing proximate cause in Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex.1965), stated:

But, as stated by this Court in Porter v. Puryear, supra [153 Tex. 82, 262 S.W.2d 933], ‘[t]he vital inquiry in any case involving proximate cause is whether the negligent act set in motion a natural and unbroken chain of events that led directly and proximately to a reasonably foreseeable injury or result.’ (262 S.W.2d 933, 936).

In Port Terminal Ry. Ass’n v. Ross, 155 Tex. 447, 289 S.W.2d 220, 224 (1956), the Supreme Court stated:

Prosser states that if the defendant’s act or omission was a substantial factor in bringing about the result, it will be regarded as a cause in fact, and that ordinarily it will be such a substantial factor if the result would not have occurred without it. Prosser, Law of Torts, p. 321, sec. 46. . . . It has also been pointed out repeatedly that for the defendant’s negligence to be regarded as a proximate cause of the plaintiff’s injury, it is not necessary that the exact nature of the injury or the precise manner of its infliction should reasonably have been foreseen. It is sufficient that the defendant should reasonably have anticipated consequences or an injury of the general nature of that which ensued.

See also Bellaire General Hospital, Inc. v. Campbell, 510 S.W.2d 94 (Tex.Civ.App.-Houston [14th Dist.] 1974, writ ref’d n. r. e.); Levermann v. Cartall, 393 S.W.2d 931 (Tex.Civ.App.-San Antonio 1965, writ ref’d n. r. e.).

There is clearly sufficient evidence to support the jury’s finding that the nursing staff was negligent in failing to contact a doctor prior to the time they did. We have also concluded that the jury’s answer to Special Issue No. 2 (proximate cause) is supported by legally and factually sufficient evidence. While there is conflicting testimony in some respects, there is sufficient evidence of probative value to support the jury answer to such special issues.

All of defendant’s points of error pertaining to proximate cause are overruled.

ADMISSIBILITY OF EVIDENCE

By two points of error defendant complains that the trial court erred: (1) in admitting plaintiff’s exhibits numbers 1 and 2 (the head injury film and tape) into evidence because it constituted hearsay, was not relevant or material, was not based upon expert medical testimony, and the probable value, if any, was outweighed by its prejudicial effect; (2) in overruling defendant’s objection to and timely motion to strike the testimony of the witness, Jurak, dealing with an unrelated incident which was not relevant or material to any issue in the case.

The film and tape involved are an in depth study of head injuries, including an instructional guide. They point out the nature of head injuries, the damage involved, the common symptoms, including nausea, vomiting, changes in pulse, respiration, blood pressure, headaches, vision problems, progressive deterioration of the patient’s level of consciousness, etc. The film and tape were admitted by the trial court for the limited purpose of showing that it was used in the inservice training of the nursing staff at Villa Rosa.

There is testimony in the record that the film was owned by defendant, was used for personnel development of the hospital, and was noted in the official Villa Rosa nursing services procedural manual. Defendant’s records indicate that the film was purchased in September 1971 by the personnel department and there is testimony that the film had been used since 1971 through the present time and still is being used.

Witness, Jurak, a nursing assistant, testified that he had seen the film on head injuries, and he further testified that when the in-service training film was shown it was required that it be observed by all of the nursing staff.

Defendant did not in any way attempt to impeach the contents of the film during the trial.

Under the record before us we do not regard the admission of such evidence for the limited purposes admitted as being error. In any event, it was harmless error. Entirely disregarding such evidence, there is other competent evidence that would sufficiently support the jury’s answers to Special Issues Nos. 1 and 2 (negligence and proximate cause).

The Morales Incident. Defendant also complains of the testimony of witness, Jurak, pertaining to defendant’s policy to quickly attend the head injuries of its own nursing staff, and particularly to an incident involving nursing assistant George Morales. Such testimony indicated that Morales, after receiving a blow to the head, had received emergency treatment similar to that set forth in training films, including x-rays. Defendant contends that such incident was not relevant with regard to the standards of care to be applied to plaintiff. There was testimony in the record by Melvin Blumburg, a representative of defendant, who testified that the hospital policy for obtaining x-rays would be the same for a patient as it would be for a staff member. While such conduct is not controlling and should not be taken as the legal standard of care for negligence, it was evidence to be considered along with other circumstances in determining what the ordinarily reasonable man would do under the circumstances.

If there was any error in the admission of the film and the testimony as to the Morales incident, it was harmless error. Gomez Leon v. State, 426 S.W.2d 562 (Tex.1968); Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953); Swinney v. Winters, 532 S.W.2d 396 (Tex.Civ.App.-San Antonio 1975, writ ref’d n. r. e.); Reese v. Security Nat’l Ins. Co., 445 S.W.2d 811 (Tex.Civ.App.-San Antonio 1969, writ ref’d n. r. e.); Crofford v. Bowden, 311 S.W.2d 954 (Tex.Civ.App.-Fort Worth 1958, writ ref’d); Rules 434 and 503, Tex.R.Civ.P.

TRIAL AMENDMENTS

By two points of error defendant complains that the trial court erred in (1) granting leave for the filing of plaintiff’s second trial amendment alleging the existence of physical impairment as a separate element of damages at the conclusion of all the evidence, because such pleading added a new element of damages at a time when defendant was unable to refute the same; (2) granting plaintiff leave to file a post-verdict trial amendment because (a) it had the effect of increasing the total amount of damages claimed in plaintiff’s previous trial pleadings and trial amendments; (b) it altered and modified the specific monetary amounts claimed for various elements of damages contained in plaintiff’s trial pleadings and trial amendment; (c) it injected a monetary claim for the element of physical impairment for the first time after verdict.

There is a certain amount of overlapping in these points of error with the points of error to be herein discussed pertaining to damages. However, this particular portion of the opinion is restricted solely to the question of alleged error of the trial court in permitting the filing of the trial amendments here complained of.

The filing of a trial amendment is within the sound discretion of the trial court, and unless the trial court clearly abuses that discretion, no reversible error is shown. Victory v. State, 138 Tex. 285, 158 S.W.2d 760 (1942); Hartford Accident & Indemnity Co. v. Thurmond, 527 S.W.2d 180 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n. r. e.); Rule 46, Tex.R.Civ.P.; 46 Tex.Jur.2d Pleadings § 225 (1963).

Plaintiff’s second trial amendment was offered at the conclusion of the evidence and alleges that plaintiff has suffered physical impairment in the past and will probably continue to suffer physical impairment in the future. As far as we can ascertain, defendant did not object to the filing of this amendment at the time it was offered; no motion for continuance was made, and no additional evidence was offered on either side after the court granted plaintiff leave to file such amendment.

Ordinarily, on appeal an objection to a pleading which is not made in the trial court comes too late, and a motion for continuance on the grounds of surprise is essential before the filing of a trial amendment will constitute reversible error. See H. O. Dyer, Inc. v. Steele, 489 S.W.2d 686 (Tex.Civ.App.-Houston [1st Dist.] 1972, no writ); Mergele v. Houston, 436 S.W.2d 951 (Tex.Civ.App.—San Antonio 1968, writ ref’d n. r. e.); Hardage v. Rouly, 349 S.W.2d 616 (Tex.Civ.App.—Beaumont 1961, writ ref’d n. r. e.); Dirks v. Dirks, 302 S.W.2d 471 (Tex.Civ.App.—San Antonio 1957, writ dism’d); Pacific Finance Loans v. Ingram, 290 S.W.2d 261 (Tex.Civ.App.—Austin 1956, no writ); Rules 66 and 90, Tex.R.Civ.P.

We cannot say that the trial court abused its discretion in permitting the filing of this trial amendment in the absence of an objection, a plea of surprise, or a request for postponement or continuance.

The post verdict trial amendment was made to conform plaintiff’s pleading to the jury’s verdict on damages. Plaintiff’s pleadings prior to verdict sought damages in the amount of $350,000.00. The jury awarding plaintiff a total of $445,000.00 ($15,000.00—past physical pain, $15,000.00— past loss of earning capacity, $200,000.00— future loss of earning capacity, $15,000.00— past physical impairment, $100,000.00—fu-ture physical impairment).

In Irwin v. Whirley, 538 S.W.2d 150 (Tex.Civ.App.—Waco 1976, no writ), plaintiff sued for specific performance of a contract of sale and real estate, seeking damages and also $5,000.00 for exemplary damages. The jury awarded several items of damages, plus $30,000.00 for exemplary damages. The trial court permitted plaintiff to file a post-verdict trial amendment praying for $30,000.00 exemplary damages. The appellate court affirmed, holding that there was no showing that the trial court abused its discretion in allowing the trial court amendment. However, the appellate court did find the judgment to be excessive to an extent and reduced the amount of the judgment.

There are a number of other cases supporting the position that a trial amendment may be allowed after verdict and before judgment. See American Produce & Vegetable Co. v. J. D. Campisi’s Italian Restaurant, 533 S.W.2d 380 (Tex.Civ.App.-Tyler 1975, writ ref’d n. r. e.); Tom’s Toasted Peanuts, Inc. v. Doucette, 469 S.W.2d 399 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.); Shaw v. Tyler Bank & Trust Co., 285 S.W.2d 782 (Tex.Civ.App.-Texarkana 1955, writ ref’d n. r. e.); Milam v. Cooper Co., 258 S.W.2d 953 (Tex.Civ.App.-Waco 1953, writ ref’d n. r. e.).

In Doucette, Doucette sued for $31,000.00 for personal injuries and medical expenses and the jury awarded him $37,810.00. Dou-cette filed, over objections, a post verdict amendment increasing the ad damnum to an amount which was in excess of the jury’s verdict. Appellant complained on appeal of the action of the trial court in permitting the filing of such post verdict trial amendment. The appellate court approved such filing, pointing out that the filing of a trial amendment is within the sound discretion of the trial court and that Rule 66 does not specify a time during a trial when amendment may not be allowed, and found no abuse of discretion by the trial court. The court did find the amount to be excessive and reduced the amount of the judgment.

Under the record before us, we have concluded that the trial court did riot abuse its discretion in permitting the filing of (a) plaintiff’s second trial amendment, and (b) plaintiff’s post verdict trial amendment.

DAMAGES AND JURY SUBMISSIONS

We will consider the balance of defendant’s points of error and contentions together. They include numerous points of error complaining as to the manner and form of jury submission of the damage issue, points of error complaining of the factual and legal insufficiency of the evidence pertaining to the damages award, and points of error asserting that the jury’s answer as to the damage issue and all component parts thereof are grossly excessive and seeking a reversal or remittitur on this basis.

Defendant asserts vigorously that the trial court’s submission permitted, and the jury answers thereto reflect, an amount of overlapping, duplication, and double recovery.

The issues as submitted are not in accord with the form of submission suggested in the Texas Pattern Jury Charges. 1 Texas Pattern Jury Charges §§ 11.03 and 11.04 (1969) list four elements of damages in this regard: past physical pain and mental anguish; future physical pain and mental anguish; past loss of earnings; and future loss of earnings. § 11.03 asks for the total amount of damages and lists the four elements above as to be considered. § 11.04 asks for the jury to consider these four elements separately. The jury charge here submitted contains these four elements and add two more: past physical impairment and future physical impairment. The jury herein awarded $215,000.00 total damages for past and future loss of earning capacity and $115,000.00 for past and future physical impairment. The jury also awarded $115,-000.00 for past and future physical pain and mental anguish.

Defendant asserts that such submission permitted overlapping, duplication, and double recovery. However, there are cases approving the type of submission herein used. The same six elements of damages were submitted and approved in Green v. Baldree, 497 S.W.2d 342 (Tex.Civ.App.-Houston [14th Dist.] 1973, no writ). The appellate court pointed out that it is somewhat difficult to direct the jury’s attention to those different elements of damages, and at the same time be assured that the jury will not consider one of them twice; but stated that there was authority for the proposition that an allowance of recovery for physical impairment, as well as for lost earning capacity and pain, does not necessarily constitute an allowance of double recovery, citing a number of cases. See Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880 (1948); Charles T. Picton Lumber Co. v. Redden, 452 S.W.2d 713 (Tex.Civ.App.-Corpus Christi 1970, writ ref’d n. r. e.); Mikell v. La Beth, 344 S.W.2d 702 (Tex.Civ.App.-Houston 1961, writ ref’d n. r. e.); Riley v. Norman, 275 S.W.2d 208 (Tex.Civ.App.-El Paso 1954, writ ref’d n. r. e.); Southwestern Bell Telephone Co. v. Ferris, 89 S.W.2d 229 (Tex.Civ.App.-Dallas 1935, writ dism’d).

The court then pointed out that it would not be proper in every personal injury case to instruct the jury that it might consider loss of earning capacity, pain, and physical impairment as separate elements of plaintiff’s damages, and that in order to be entitled to that submission, the plaintiff must sustain the burden of proving that the effect of his physical impairment extends beyond any impediment to his earning capacity and beyond any pain and suffering to the extent that it produces a separate and distinct loss that is substantial for which he should be compensated.

In Riley v. Norman, supra, the court stated that physical impairment and diminished capacity to work and earn money do not necessarily imply one and the same thing, and that in that case, both were proper elements of damages.

The testimony shows that plaintiff is suffering from hemiparesis, a form of partial paralysis; that he also suffers from spasticity; that he cannot carry out physical activities; that he is not capable of doing any of the usual and customary tasks of a working man; this is expected to be permanent; that he has difficulty focusing both eyes and sometimes becomes confused when reading; that he tends to slur words when talking; and that he is unable to perform activities requiring strength, endurance, and fine motor coordination.

There is testimony by a counselor and teacher at a special school that plaintiff attended that he is a well motivated student who makes good grades but has problems remembering; that Jimmy worried about dating and marriage and his future; and that she was worried about his future and that she had trouble figuring out what he could do. This counselor also testified that he appears to be suffering from pain at all times; and plaintiff himself testified that he has pain that hurts him at all times.

There is clearly a possibility of some overlapping and blending in the issues as submitted. However, we have concluded that under the record before us, the trial court did not commit reversible error in submitting the damages issue as here submitted.

We turn next to the award of $445,000.00, which is based upon the six elements here-inbefore discussed. The record here undoubtedly supports the award of a large sum of money as damages. The determination of the amount rests primarily with the jury, and there is no set formula applicable to cases of this character whereby the exact amount can be measured or ascertained. The amount of the award is not, however, free from control or revision by either the trial court or this court. As a general rule the verdict of the jury in this connection is subject to the supervision of the court, whether such verdict is too large or too small.

The applicable testimony pertaining to plaintiffs disability has been set forth in some detail. Plaintiff is a young man with a long life expectancy and is suffering from a great deal of disability. However, plaintiff’s outlook while not optimistic, is not devoid of hope. Jimmy was 19 at the time of the accident, and there was no evidence of any previous work or earnings. This is understandable, but in the absence of such evidence, we feel it is competent to examine Jimmy’s general history prior to the injury. It was not a good one. Such records indicate that he had a drug addiction problem and was undergoing psychiatric treatment at the time of the accident. There is testimony by his psychiatrist that he was having an up and down recovery and there is evidence that he had been “shot up” a week prior to the injury. There was no evidence that he had any type of job or that he was even going to school.

It appears to be a fair appraisal of his situation, from the record before us, that he was making only marginal progress toward becoming productive or useful, and there is nothing in the record to show that Jimmy, prior to his injury, had much propensity to do anything of a constructive nature. Since the accident, he has made a remarkable recovery from this problem. The evidence as hereinbefore pointed out indicates that he is severely handicapped, but there is evidence that he is now a good student, makes good grades, and is well motivated. There are indications that he can do some types of activities or work not involving strength or endurance.

It is also to be remembered that the pleadings, which plaintiff filed and maintained in the trial court until after the verdict, sought only $350,000.00 in damages.

After a careful consideration of the evidence, we have come to the conclusion that the verdict of the jury and the court’s judgment is excessive by the sum of $95,-000.00. The excessiveness of the award is simply that which in our best judgment exceeds the outside limits of propriety.

The judgment of the trial court, therefore, will be affirmed if the plaintiff will file in this court within 30 days hereof a remittitur in writing of $95,000.00; otherwise said judgment will be reversed and remanded for a new trial.

Affirmed on condition of remittitur.

CADENA, Chief Justice,

dissenting.

I agree that the verdict in this case is excessive, but I cannot agree that the error is cured by ordering a remittitur in the sum of $95,000.00.

The majority opinion in this case does not state which of the six separate awards of damages is excessive, nor does it indicate the extent to which each award is excessive.

It can persuasively be argued that the award of $115,000.00 for past and future physical pain and mental anguish is not excessive, considering the nature of the injury and its after-effects. But I find no basis for the award of $15,000.00 for loss of earning capacity during the approximately three years intervening between the time of the injury and the trial, nor for the award of $200,000.00 as compensation for loss of earning capacity “which, in reasonable probability,” plaintiff will sustain in the future.

There is no evidence to support a finding that, but for the injury, plaintiff would have, in reasonable probability, earned any amount whatever. There is no evidence that plaintiff had earned any income prior to the injury. This lack of evidence can probably be explained by the fact that plaintiff was a heroin addict. As Justice Klingeman points out, plaintiff, prior to the injury, was making only “marginal progress toward becoming productive or useful,” and he had been “shot up” a week prior to his injury. The majority opinion cannot go beyond the statement that plaintiffs outlook, prior to the injury, “was not devoid of hope.” Simply stated, there is no evidence to support a finding that plaintiff’s work history and “propensity to do anything” of a constructive nature would have been better in the future than it had been in the past. There is certainly no evidence that, but for the injury, he would have had the capacity to earn $15,000.00 during the three years preceding the trial and $200,000.00 during the remainder of his life expectancy. The excessiveness of the verdict concerning future impairment of earning capacity becomes patent when it is viewed in the light of the fact that the award of $200,000.00 represents merely the present value of the loss of earnings, and that plaintiff was not, prior to the injury, a normal young man of whom it could be said that he would become an ordinary productive member of society. Instead, he was a young man who, at best, was making only marginal progress toward overcoming his addiction. The possibility that a heroin addict will be rehabilitated is commonly known to be no more than slim.

The next awards which must be examined are those granting plaintiff recovery of $15,000.00 for past physical impairment and $100,000.00 for future physical impairment.

There can be no doubt that recovery of damages for physical impairment is proper, and that such recovery may properly be classified as an element of recoverable damage separate and apart from physical pain and loss of earning capacity. The example which comes most readily to mind is that of the young woman who, because of the injury, has become hideously scarred. The elements of recovery for physical impairment are sometimes grouped together under the classification “loss of enjoyment of life.” Impairment of the capacity to enjoy life should be compensable. Missouri Pacific Ry. R. Co. v. Handley, 341 S.W.2d 203 (Tex.Civ.App.-San Antonio 1960, no writ); Galveston Electric Co. v. Biggs, 14 S.W.2d 307 (Tex.Civ.App.-Galveston 1929, writ ref’d); Annot. 15 A.L.R.3d 506 (1967). Cf. Locke v. International & G. N. R. Co., 25 Tex.Civ.App. 145, 60 S.W. 314 (Austin 1901, no writ). Inability to tie one’s shoe laces, to take care of one’s bodily needs, to hear beautiful music, to enjoy beautiful works of art, to play golf, etc. constitute a significant loss. But it seems clear that such impairment results in what the courts generally call “mental anguish.”

In this case, mental anguish and physical impairment were separately listed as com-pensable items of damage. The majority opinion speaks of the “possibility” of double recovery in a case where the elements of mental anguish and physical impairment are submitted separately. This is an obvious understatement. Overlapping, resulting in double recovery, seems to be inevitable, and the situation is not remedied by a general caveat which, as here, merely cautions the jury that it “should not include the same element of damages more than one time.”

In Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880 (1948), the damage issue called for a lump sum award. The injury was instructed to consider past pain and suffering and mental anguish and disfigurement. Future pain and suffering and mental anguish were not submitted as recoverable elements of damages. The Supreme Court held that, under these circumstances, there was no significant prospect of a double recovery. In Green v. Baldree, 497 S.W.2d 342 (Tex.Civ.App.-Houston [14th Dist.] 1973, no writ), it was held that permitting recovery for physical impairment as well as for lost earning capacity does not necessarily allow double recovery.

Resort to past decisions is not significantly fruitful. In International & G. N. Ry. Co. v. Butcher, 98 Tex. 462, 84 S.W.2d 1052 (1905), a submission .substantially in the form of that used by the trial court resulted in reversal because the manner of submission permitted a double recovery. A similar result was reached in International-G. N. Ry. Co. v. King, 41 S.W.2d 234 (Tex.Com.App.1931). In Felder, the Supreme Court distinguished King by saying merely that in the latter case the instruction “as a whole was confusing and misleading, and permitted the recovery of double damages,” while describing the situation in Felder as being “clearly different from and [not running] counter to [King] and the authorities it cites and follows:” No attempt is made in Felder to explain why one charge is confusing and misleading, permitting double recovery, while another is not. Subsequent cases relying on Felder dispose of King in the same cavalier manner.

If, as I believe, the charge in this case does more than merely create a possibility of double recovery, this form of submission should be condemned. Where the element of physical impairment is present, difficulty can be avoided by submitting the element of mental anguish, accompanied by an instruction to the effect that in awarding compensation for mental anguish, the element of physical impairment may be considered.

I would leave undisturbed the award of $115,000.00 for past and future pain and mental anguish. The award for loss of past earnings I would reduce to $5,000.00, while reducing the award for impaired earning capacity in the future to $100,000.00. For past and future physical impairment I would award only $50,000.00.

These changes would reduce the amount of plaintiff’s recovery to $270,000.00, requiring a remittitur of $175,000.00. I realize, of course, that in arriving at the amount of the required remittitur I have necessarily travelled a highway devoid of reliable guide signs, and that my conclusion is based on a feeling of what is right and just under the evidence in this case, making due allowance for the serious nature of plaintiff’s injuries while, at the same time, attempting to compensate for the fact that the manner of submission of the damage issue makes it highly probable that a double recovery resulted.


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    Cecille JOHNSON, Appellant, v. C. A. BROWN, Jr., Individually and as Independent Executor of the Estate of Beatrice Brown, Deceased, Appellee.
    No. 5094.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 22, 1977.
    Rehearing Denied Jan. 19, 1978.

      Robert D. Reed, San Antonio, for appellant.
    Patrick J. Pape, San Antonio, John G. Murray, Pearsall, for appellee.
   McCLOUD, Chief Justice.

The issue discussed is the admissibility of a ledger sheet under the business records exception to the hearsay rule.

Plaintiff, Ceeille Brown Johnson, sued defendant, C. A. Brown, Jr., Individually and as Independent Executor of the Estate of Beatrice Brown, Deceased, alleging that a tract of land containing approximately 274 acres located in Frio County, was plaintiff’s property even though the record title was in the name of Beatrice Brown at the time of her death. Plaintiff alleged the land was conveyed to Beatrice Brown for the purpose of holding title because of plaintiff’s marital difficulties, and under the oral agreement between Beatrice Brown and plaintiff, Beatrice Brown would take title •by a “gift deed,” but would hold the title in trust for the benefit of plaintiff, and Beatrice Brown would reconvey the property to plaintiff at the request of plaintiff. Beatrice Brown was the mother of plaintiff and defendant. Plaintiff alleged a confidential relationship existed and sought to impose a constructive trust. The land in question was originally the separate property of Beatrice Brown, who joined by her husband, C. A. Brown, Sr., executed a deed dated December 28, 1960, giving the property to plaintiff. The purpose of this transfer was to equalize between the two children money advances previously given to defendant by Mr. and Mrs. Brown. On July 15, 1967, plaintiff executed a deed to her mother purporting to reconvey, by gift, the 274-acre tract. This is the conveyance in issue.

The jury found in Special Issue 1 that on July 15, 1967, and prior thereto, no confidential relationship existed between plaintiff and her mother, and in Special Issue 2, that plaintiff did not make the July 15,1967 deed to her mother for the agreed purpose of holding title to the land in the mother’s name for safekeeping for plaintiff. Judgment was entered for defendant and plaintiff has appealed. We reverse and remand.

Beatrice Brown died in 1974 leaving plaintiff and defendant as her two surviving children. Her husband, C. A. Brown, Sr., died in 1972 or 1973. Under the terms of Beatrice Brown's will, all of her property was left in equal shares to her two children. Defendant included the property in question in the inventory of the Estate of Beatrice Brown, Deceased.

Plaintiff contends the court erred in admitting Exhibit 5A, over plaintiff’s proper objection, because the exhibit constituted hearsay evidence and defendant did not meet the requirements of Tex.Rev.Civ. Stat.Ann. art. 3737e (1951). We agree.

Article 3737e provides in part:

“Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:
(a) It was made in the regular course of business;
(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.”

Plaintiff argues that defendant failed to prove any of the essential elements to establish the exception to the hearsay rule. The party offering the evidence must prove each of the essential elements set out in the statute. Logan v. Grady, 482 S.W.2d 313 (Tex.Civ.App.-Fort Worth 1972, no writ). We will discuss only paragraph (c) of the above quoted statute which expressly requires a showing that the record of an act, event or condition be made at or near the time of the act, event or condition. Defendant wholly failed to meet this requirement.

Exhibit 5A is a sheet from a “ledger” kept for many years by C. A. Brown, Sr. Defendant, C. A. Brown, Jr., testified that the writing on the sheet was his father’s handwriting. The printed sheet contains the name “Cecille” at the top and the following handwritten entries.

There is no evidence as to when any of the information shown above was written on the ledger sheet. Defendant stated he first saw the ledger sheet about 1970.

In Defendant’s Third Amended Answer, he made the following allegation:

“Answering further, Defendant alleges that the conveyance from CECILLE BROWN JOHNSON to BEATRICE CAMPBELL BROWN by Deed recorded in Volume 233, Page 388 of the Deed Records of Frio County, Texas, was supported by a good and valuable consideration in that C. A. BROWN and wife, BEATRICE CAMPBELL BROWN, during the years from' 1960 through 1967, made gifts to the said CECILLE BROWN JOHNSON of cash in an amount somewhere between $20,000.00 and $30,000.00. Defendant would further show that the said CECILLE BROWN JOHNSON was not financially able to repay these funds and that the said C. A. BROWN AND BEATRICE CAMPBELL BROWN requested that CECILLE BROWN JOHNSON reconvey the 274 acres of land in question to them in order to cancel said indebtedness.”

Prior to the introduction of Exhibit 5A into evidence, the defendant, C. A. Brown, Jr., testified on direct examination as follows:

“Q Now, Mr. Spencer had asked you about any personal knowledge about any advances that your father had made or your father and mother had made to Cecille and you said you didn’t know of any of your own personal knowledge, is that correct?
A Oh, I knew they was helping her but I couldn’t tell you how much or how.
Q Are there any records to indicate how much?
A Yes, he had his records.
Q Did he keep a general ledger sheet for—
A He kept a ledger.
Q And that’s where he kept in there about how much you had drawn out over and above what you had put into it?
A Yes, there’s a — It’s a list of every check that I have written back to 1952 or something like that up until when he got sick.
Q Did he keep any ledger sheets on Ce-cille?
A He started keeping those somewhere back in the last of the ’50’s or 1960. I don’t remember exactly when this started.
Q Do you know of your own knowledge whether your parents were helping Cecille and Bill Johnson and their children at that time?
A Oh, yes, they were helping them.
Q And from the period of 1960 to 1967 are there any records to indicate what advances have been made to Cecille?
A Yes, he had a record of that.
Q Do you know how much it showed?
MR. SPENCER: Just a minute. Your Honor, I object to that.
THE COURT: Yes, the records will be the best evidence.
Q (By Mr. Pape) Do you have that ledger with you?
A It’s in my pickup.
Q Okay. We will bring it in. That was your father’s general ledger that he kept?
A Yes, sir.
THE COURT: Is that one in the pickup having Cecille’s account, is that the same ledger that has your account?
THE WITNESS: Yes, sir.
THE COURT: So when you get it it will all be in the same book?
MR. PAPE: Yes, sir.
THE COURT: Not two books, but one, is that right?
THE WITNESS: One book.
(By Mr. Pape) Would you say he kept pretty detailed accounting records of who got what? <©
Yes, sir. >
And do you know of your own personal knowledge of the fact that your father made those entries in those books? £>
A Well, I used to make entries in the book when I worked in the store but I haven’t made any entries in there in maybe twenty, twenty-five years.
Did you make any entries regarding Cecille? «©
A No.
Did your father make any entries regarding Cecille?
A Yes.
Are you familiar with his handwriting?
A Oh, yes.
And familiar with the fact that he kept this general ledger?
A Sure.
That was his second important book to the Bible, I assume.
A Well, he just wrote everything down.
Now, during the period, I believe,— Do you know when Cecille was first divorced?
Oh, it was somewhere around 1960. I don’t know. I don’t remember.
After she was divorced do you know whether or not your parents helped her in connection with the raising of her and the children? «O
Yes. >
And did they give her money and other property? ,©
They helped her. I don’t know exactly whether it was in the form of money or what, but they helped.
Q Whatever the ledger shows would be the amount that they helped her?
A Yes.”

Defendant further testified on cross-examination:

“Q All right. And is it the truth you testified on your deposition in this case on May the 28th, 1976, in answer to these questions, the following testimony on Page 108, beginning with’ Line 9:
‘Question: All right. So you don’t —you did not know the date of the reconveyance from Cecille back to your mother?
‘Answer: No.
‘Question: Okay. Now, you didn’t know under what circumstances it might have been conveyed or what the discussions were, if any?
‘Answer: No.
‘Question: Do you know whether or not there were any discussions?
‘Answer: No.’
Is that the truth?
A That’s it.
Q So the long and short of it is you have no information on that subject that I asked you about from your mother as to the transaction between Cecille and her?
A No, I wasn’t there. I didn’t — I wasn’t in on that.”

The statement on Exhibit 5A “1967 Retd. Farm to Balance” is particularly significant and harmful to plaintiff. We think the jury probably improperly determined from Exhibit 5A that Mr. and Mrs. Brown had made advances of at least $18,919.36 to plaintiff from 1960 to 1967 and the recon-veyance of the land in question on July 15, 1967, was to “balance” those advances.

C. A. Brown, Jr., testified that he had no personal knowledge regarding the conveyance. He stated his parents helped plaintiff and in answer to a question, testified that, “Whatever the ledger shows would be the amount that they helped her.” Much ■emphasis was placed upon the ledger sheet and what it showed. We have no doubt but that the jury placed great significance upon the inadmissible evidence in answering the two issues submitted.

Since defendant failed to comply with the requirements of Article 3737e, the exhibit constituted inadmissible hearsay evidence. Defendant argues that the court’s limiting instruction prevented the evidence from being inadmissible. We disagree. The jury was instructed that they could consider the matters contained on the sheet concerning Cecille in “rebuttal”, as to “advancements” made by Mr. and Mrs. Brown.

After considering the entire record, we hold that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P. Judgment of the trial court is reversed and the cause is remanded. In view of our disposition, we have not discussed plaintiff’s other points of error.


author: PRESLAR, Chief Justice.

text:
    James J. WHEAT, Appellant, v. Thelma Louise MONTGOMERY et al., Appellees.
    No. 6681.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 28, 1977.

      Finley & Scogin, Robert Scogin, Kermit, Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Elton Gilliland, Gary C. Riley, Odessa, for appellant.
    Calvin W. Wesch, Kermit, G. Bert Smith, Jr., Andrews, for appellees.
   OPINION

PRESLAR, Chief Justice.

This is a venue matter involving principally a procedural -question where the Plaintiffs filed an amended petition but did not file an amended controverting affidavit. The trial Court overruled the Defendant’s plea of privilege. We affirm. ■

This is a suit for the wrongful death of Donald Montgomery brought by the widow, Thelma Louise Montgomery, and the minor son, James Robert Montgomery. Appellees, as Plaintiffs, filed their original petition and the Appellant, Defendant, filed a plea of privilege and the Plaintiffs responded with a controverting affidavit; Plaintiffs then filed their first amended petition and Defendant filed an amended plea of privilege; Plaintiffs filed no further controverting affidavit but went to trial at the venue hearing on their original controverting affidavit. Defendant contended in the trial Court, and here, that it was necessary for the Plaintiffs to file an amended controverting affidavit following their amended petition and the Defendant’s amended plea of privilege. Defendant argues that under Rule 65, Tex.R.Civ.P., when Plaintiffs filed their amended petition, they abandoned their first petition, which was incorporated in their controverting affidavit, and Plaintiffs now have no controverting affidavit to the Defendant’s amended plea of privilege. In the absence of the controverting affidavit, they urge that they are entitled to their plea of privilege as a matter of law. Especially, they say, this is true because there was a change of parties in the amended petition of the Plaintiffs. The change of parties argument arises from the fact that in the original petition, the minor son was represented by Martha L. Robinson, as next friend. In the amended petition, he was represented by the same Martha L. Robinson, but in the capacity of guardian of his estate. This does not amount to a change of parties as such, but is a change of capacity in which one party is represented, but in any event it is immaterial as we view the case, as will be discussed.

'When Defendant objected to the introduction of any evidence at the venue hearing, the learned trial judge announced that they would proceed to hear evidence under the original plea of privilege and the original controverting affidavit. In that, he announced the correct law. It is well established law that where the Plaintiff makes his original petition a part of the controverting affidavit by reference, thereafter files an amended petition, but not an amended controverting affidavit, the amended petition is not before the Court on the venue hearing. 1 McDonald, Texas Civil Practice, Venue, Sec. 4.50 (1965); Danaho Refining Company v. Dietz, 378 S.W.2d 412 (Tex.Civ.App.-Corpus Christi 1964, no writ); Wilson’s Pharmacy, Inc. v. Behrens Drug Company, 494 S.W.2d 161 (Tex.1973); Madeley v. Oualline, 449 S.W.2d 352 (Tex.Civ.App.-Beaumont 1969, no writ); Falco v. Trail, 462 S.W.2d 42 (Tex.Civ.App.-Tyler 1970, no writ); Ryan Mortgage Investors v. Berton Land Development Corporation, 556 S.W.2d 361 (Tex.Civ.App.-Beaumont 1977, no writ). In the case before us, Plaintiffs’ amended petition was not on file at the time of the filing of their controverting affidavit; under the above authorities, their amended petition was not before the Court at the venue hearing.

In any event, the failure to file an amended controverting affidavit is immaterial because the venue facts are the same under both the original and amended petition. 1 McDonald, Texas Civil Practice, supra; Swisher Creamery v. Watkins, 245 S.W.2d 967 (Tex.Civ.App.-Amarillo 1951, no writ); B. L. Satterwhite & Co. v. Eardley, 294 S.W.2d 412 (Tex.Civ.App.-Galveston 1956, no writ). Also, Plaintiffs’ controverting affidavit alleges the venue facts independent of the petition and are sufficient without any reference to the petition.

The Plaintiffs’ controverting affidavit alleged that the Defendant was a resident of the county of suit, Winkler County. Our review of the evidence leads to the conclusion that the trial Court properly found that the Defendant was a resident of the county of suit.

The plea of privilege and the controverting affidavit constitute the pleadings for the venue trial. Under those pleadings and at that trial, Plaintiffs establish their venue rights; the Plaintiffs’ right to recovery depends upon their petition. Wilson’s Pharmacy, Inc. v. Behrens Drug Co., supra. Thus, the change in capacity in which one of the Plaintiffs seeks recovery in the case before us is of no consequence in determining venue. See also, Anders v. Newsom, 217 S.W.2d 422 (Tex.Civ.App.-Eastland 1949, no writ).

The judgment of the trial Court is affirmed.


author: HUGHES, Justice.

text:
    TEXAS ELECTRIC SERVICE COMPANY, Appellant, v. Floyd WEST, Appellee.
    No. 17915.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 29, 1977.
    Rehearing Denied Jan. 26, 1978.

      Joseph A. Chandler, Stephenville, Cantey, Hanger, Gooch, Munn & Collins, and Jack C. Wessler and S. G. Johndroe III, Fort Worth, for appellant.
    Locke, Purnell, Boren, Laney & Neely, and Wayne 0. Woodruff, Dallas, for appel-lee.
   OPINION

HUGHES, Justice.

This is the fourth in a series of condemnation cases involving Texas Electric Service Company (TESCO) to come before this court. Texas Elec. Service Co. v. Ragle, 559 S.W.2d 454 (Tex.Civ.App.-Fort Worth 1977, no writ at present); Texas Elec. Service Co. v. Wheeler, 550 S.W.2d 297 (Tex.Civ.App.-Fort Worth 1976, affirmed in 551 S.W.2d 341 (Tex.1977); Texas Elec. Service Co. v. Nelon, 546 S.W.2d 864 (Tex.Civ.App.-Fort Worth 1977, writ ref’d n. r. e.). As in the previous cases, this case resulted from TESCO’s construction of the first nuclear-powered generating plant in Texas.

On May 21, 1975, TESCO acquired an easement by condemnation across Floyd West’s (appellee’s) farm for a railroad to be built in conjunction with its nuclear-powered generating plant. TESCO does not complain of the jury’s finding that the 2.044 acre easement had a value of some $1700.00. It does complain of the diminution in value of the remaining acreage. From the trial court’s judgment that the 185 acres remaining after TESCO’s taking of the easement were damaged in market value in the amount of $250.00 per acre, TESCO has perfected its appeal.

We AFFIRM in part and REVERSE and REMAND in part.

By its second and fourth points of error, TESCO contends that the trial court erred in rendering judgment for Floyd West, because there is no evidence to support the jury’s answers to special issues nos. 3 and 4 with regard to the reasonable market value of the remainder (185 acres) immediately before and after its taking of the railroad right-of-way easement.

By its first and third points of error, TESCO contends that the trial court erred in overruling its motion for new trial, because the evidence is insufficient to support the jury’s answers to special issues nos. 3 and 4 with regard to the reasonable market value of the remainder immediately before and after its taking of the railroad right-of-way easement.

In its answers to special issues nos. 3 and 4, the jury found that the before-taking value of the 185 acre tract was $850.00 per acre, while the value immediately after the taking was $600.00 per acre.

In considering each of TESCO’s “no evidence” points, we must look only to the evidence favorable to the jury’s finding and if there is any evidence of probative force to support the finding of the jury, such finding is binding on this court. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Floyd West, the landowner, testified that the 185 acre remainder was worth $1000.00 per acre before the taking on May 21, 1975, and had an after-taking value of $400.00 per acre. In explanation of why the land was diminished in value because of TES-CO’s taking of the railroad right-of-way, he testified that the railroad cutting his tract of land into two parcels would make it difficult for him to find a buyer for the land-locked parcel of land. There would be no way for a purchaser to get to the isolated, land-locked parcel without crossing the other parcel of land. Also, he pointed out that the operation of any railroad poses a danger to livestock and presents a danger of fire.

H. O. Ricks, the ranch foreman for Mr. West, testified that he was familiar with land values in the area, and that the 185 acre tract had a before-taking value of $1000.00 per acre and an after-taking value of $700.00 per acre. Further, he testified that Mr. West’s land had been terraced and maintained, but the railroad right-of-way had cut the tract into two parcels. After the railroad was built, there was a detrimental alteration of the drainage on the land, resulting in two or three acres collecting sand. Also, there is no water on the back side of the land that is cut off. He concluded that the railroad made the land less desirable in the eyes of a prospective purchaser.

Joe Evans, a licensed real estate broker, testified that the 185 acre remainder was worth $850.00 an acre before the taking, but was only worth $490.00 per acre after the taking. Among other things, he testified that the pond was going to have silt in it, because the land had been disturbed in such a way as to cause erosion.

We overrule TESCO’s second and fourth points of error, whereby it contends that there is no evidence to support the jury’s answers to special issues nos. 3 and 4.

In considering TESCO’s first and third points of error, which are “insufficient evidence” points, we must consider and weigh all of the evidence in the case and set aside the verdict and remand the cause for a new trial only in the event the jury’s findings are so against the great weight and preponderance of the evidence so as to be manifestly unjust. In re King’s Estate, supra.

Countering the value testimony given by Mr. West and his two witnesses, TESCO presented two witnesses on value to the jury. James W. Daniels, a real estate appraiser, testified that the 185 acres remaining had a before and after taking value of $750.00 per aere; i. e., the railroad had no effect on the value of the property. Another real estate appraiser, William Oswald, testified that the before and after-taking value of the 185 acre remainder was $775.00 per acre.

Considering all the evidence in the record on the before and after-taking value of the remaining 185 acres, we cannot conclude that the jury’s answers to special issues nos. 3 and 4 are so against the great weight and preponderance of the evidence so as to be manifestly unjust. Accordingly, we overrule TESCO’s first and third points of error.

By its fifth point of error, TESCO contends that the trial court erred in overruling its objections and exceptions in regard to the submission and form of special issues nos. 3 and 4, because such issues were not supported by the evidence. As to the form of these special issues, TESCO’s point of error does not specify how the form of these special issues was defective. Based upon the evidence in the record, some of which has been discussed in this opinion, we hold that the submission of special issues nos. 3 and 4 was supported by the evidence. TESCO’s fifth point of error is overruled.

In its sixth point of error, TESCO contends that the trial court erred in overruling its objection to the testimony of Mr. West’s witness, Joe Evans, concerning the alleged diminution in market value, because of fear of an accident in the transportation of nuclear waste. The point of error stated that such testimony was incompetent, prejudicial, without foundation, and constituted no evidence which could have aided the jury in the performance of its fact-finding function. TESCO’s seventh point of error is that the trial court erred in overruling its objection to the closing argument of Mr. West’s attorney concerning the alleged diminution in market value because of fear of a nuclear accident in the transportation of nuclear waste.

Tex.Const. art. 1, § IT provides: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, . . . ” (Emphasis added.) It is clear that fear in the mind of the buying public in the market on the date of the taking is one element that may be considered by the factfinder in assessing damages. Heddin v. Delhi Gas Pipeline Company, 522 S.W.2d 886 (Tex.1975). However, before testimony concerning this fear factor may be presented to the factfinder for its consideration, these three elements must appear:

“1. That there is a basis in reason or experience for the fear;
2. That such fear enters into the calculations of persons who deal in the buying and selling of similar property; and
3. Depreciation of market value because of the existence of such fear.” Heddin at 888.

Our supreme court further wrote in Hed-din :

“To establish that there is a basis in reason or experience for the fear, it is incumbent upon the landowners to show either an actual danger forming the basis of such fear or that the fear is reasonable, whether or not based upon actual experience. Reduction in market value due to fear of an unfounded danger is not recoverable. [Citing authorities.] This rule is designed to exclude consideration only of those few situations in which the danger underlying the fear finds its basis in neither reason nor experience but is predicated rather on fancy, delusion or imagination.” (Italics in original.) Id.

Having read the entire statement of facts, we must conclude that the requirements of the Heddin case were not met to support the introduction of the fear testimony before the jury. Cases showing the proper predicate to support testimony concerning fear as an element of damages in condemnation cases are Texas Elec. Service Co. v. Ragle, supra, and Texas Elec. Service Co. v. Nelon, supra.

As for the introduction of the testimony concerning the fear factor without the proper predicate, this is not a situation where the harmless error rule can be applied. As this court wrote in Texas Elec. Service Co. v. Nelon, supra,

“We may not assume that the jury did not consider the fear factor . . . .” Id. at 866.

We sustain TESCO’s sixth and seventh points of error.

The fear testimony and counsel’s closing argument involving the fear factor, in the absence of the proper predicate, probably caused the rendition of an improper judgment in the case. Tex.R.Civ.P. 434. Accordingly, we must reverse the judgment of the trial court and remand the case for a new trial as to the diminution in value (if any) of the 185-acre remainder; however, we affirm the judgment of the trial court as to the value of the easement actually taken.

AFFIRMED in part and REVERSED and REMANDED in part.

Costs are taxed one-half against Texas Electric Service Company and one-half against Floyd West.


author: DUNAGAN, Chief Justice.

text:
    Perry HAGAR, Jr., Appellant, v. TEXAS DISTRIBUTORS, INC., Appellee.
    No. 1097.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 29, 1977.
    Rehearing Denied Jan. 26, 1978.
    Larry S. Parnass, Parnass & Fowler, Laird H. McNeil, Irving, for appellant.
    David A. Miller, Matthews, Matthews, Sechrist & Madrid, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a summary judgment granted appellee, Texas Distributors, Inc., against appellant, Perry Hagar, Jr., in an action on a promissory note.

Appellant was the maker of a promissory note dated February 13, 1975, in the original principal sum of $22,030.00, together with interest thereon at the rate of 10% per annum, payable on or before sixty days from date thereof. Such note allegedly came into default, and appellee, as the purported owner and holder thereof, brought suit to recover the unpaid balance. Appel-lee filed a motion for summary judgment, to which appellant filed a reply. The trial court initially overruled the motion for summary judgment, whereon appellee took appellant’s deposition and filed a supplemental motion for summary judgment, to which appellant likewise responded. Upon hearing had, and consideration of the affidavits in support of and in opposition to appellee’s motion, together with appellant’s deposition, the trial court determined that there was an absence of any genuine issue of material fact and entered summary judgment on appellee’s behalf, from which appellant duly perfected his appeal.

Appellant by his sole point of error contends that the motion for summary judgment should not have been granted because appellee failed to establish as a matter of law that there were no material issues of fact.

Appellant was the owner and the general contractor on a project known as Burgundy Tower, and he contracted with the appellee to perform work on the project. The total contract between the parties, including extras, was in the amount of $220,300.00 of which appellee was paid $198,270.00, leaving a balance due to the appellee of $22,-030.00 which is represented by the promissory note here involved. Appellant admits that appellee fully performed and that the sum of the note is the undisputed amount owing to appellee for material and labor on the project.

Appellant also admits that the note was entered into in consideration of appellee’s foregoing the filing of a mechanic’s and materialman’s lien and that he benefitted by the same.

Appellant has attempted to avoid his obligation to appellee by raising the affirmative defense of fraudulent inducement.

Where such affirmative defense as in the instant case has more than one element, then a fact issue must be raised on each element necessary to such defense. Kain v. Neuhaus, 515 S.W.2d 45 (Tex.Civ.App.—Corpus Christi 1974, no writ); Nichols v. Smith, 507 S.W.2d 518 (Tex.1974). This is so because “when the plaintiff moves for summary judgment in a case where the defendant has alleged an affirmative defense, the motion should be granted upon a showing by the plaintiff that there is no material issue of fact concerning the elements of his claim unless the defendant comes forward with summary judgment proof sufficient to raise at least an issue of fact with respect to the affirmative defense.” Nichols v. Smith, supra, at 520.

The appellant has failed to raise, by competent summary judgment evidence, a fact issue with respect to a false statement of material fact. In his first attempt to do so (affidavit in opposition to motion for summary judgment of Texas Distributors, Inc.) he stated:

“As a part and parcel of said scheme, Tim • Conway and Larry Colgin represented to me that, if I would execute the note in question, and allow same to be secured by a lien upon other property owned by me, then the property upon which Burgundy Tower was situated could remain free and clear of any and all liens, to facilitate the refinancing arrangement heretofore described. Such representations were not true, and were made by Tim Conway and Larry Colgin, to induce me to execute the note in question.”

The appellant claims that Tim Conway (an employee of appellee) represented that (1) if appellee’s claim could be secured by other property, then (2) the property would remain free of liens (except Texas Bank’s first lien), and (3) this would facilitate refinancing the project. Later in the same paragraph appellant admits that (1) and (2) were true, but claimed that appellee’s purpose was not (3) to facilitate refinancing the property and that therein lies the alleged false statement of material fact.

The expression of an opinion as to whether some future event will or will not happen cannot be the basis for a claim for fraud. Merchandise Mart, Inc. v. Marcus, 483 S.W.2d 893, 897 (Tex.Civ.App.—Tyler 1972, writ ref’d n. r. e.); 25 Tex.Jur.2d, Fraud & Deceit, sec. 42, p. 679; Mangum Road Center v. DiSclafani, 450 S.W.2d 130 (Tex.Civ.App.-Houston [14th Dist.] 1969, writ ref’d n. r. e.).

Appellant further states in his affidavit that the alleged representations of Tim Conway were not true and that such representations were made to induce him to execute the note in question; that in relying upon such representations he executed said note, which he “would not have done except for my reliance upon the aforesaid representations . . . , and my belief that same were true;” that the representations were not true, “in that the purpose and objective of Plaintiff and Texas Bank & Trust was not to facilitate refinancing, as represented, but indeed to enable Texas Bank & Trust to have its lien on the Burgundy property unencumbered by other liens, while simultaneously securing Plaintiff’s claim on other property.”

Appellant’s affidavit concerning these alleged false representations was based upon his information and belief. Affidavit based on information and belief is insufficient as verification by oath and its content is not factual proof in summary judgment proceeding. Rausheck v. Empire Life Insurance Company, 507 S.W.2d 337, 339 (Tex.Civ.App.—Texarkana 1974, writ ref’d n. r. e.).

The appellant also contends there is a factual question as to whether the note sued upon was in default. He asserts that the appellee has not provided any summary judgment evidence of a default on the promissory note.

The Supreme Court of Texas held in Graves v. First National Bank of Bonham, 77 Tex. 555, 14 S.W. 163 (1890) that in an action by the holder of a promissory note payable to his order, against a maker, and where execution of the note has not been properly denied, the introduction of the note in evidence makes a prima facie case for the holder. And in Tarrant Savings Association v. Lucky Homes, Inc., 390 S.W.2d 473, 474 (Tex.1965), the court said:

“In the trial of this cause petitioner maintained its burden to establish its case by introducing its note from respondents in the amount of $2,500.00.”

It is also evident upon the face of the note, a certified and sworn copy of which was in evidence, that the note was due sixty (60) days from February 13, 1975, and appellee’s original petition was not filed until February 1976. In Hensley v. Jones, 492 S.W.2d 283, 284 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ), the court held:

“. . . The note on its face established that its due date was past and, absent any proper affirmative plea of payment (Texas Rules of Civil Procedure 95), showed the amount that was due thereon.”

If a legitimate issue of default existed, the burden shifted to appellant to put default in issue after the appellee presented its prima facie case. Tex.Bus. & Comm. Code Ann. sec. 3.307(b) (1968) provides:

“When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.”

This the appellant failed to do.

The only question to be decided on motion for summary judgment is whether summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of essential elements of plaintiff’s cause of action. Sparkman v. Peoples National Bank of Tyler, 501 S.W.2d 739, 741 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.). “The burden of proof is upon the party moving for summary judgment and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. The evidence upon such a motion must be viewed in the light most favorable to the party opposing the motion. The affiant must have personal knowledge of statements depended upon to raise a fact issue and must be competent to testify as to the subject matter of the statement. ... In addition, the affidavit must be so worded that the statements made therein would be admissible in evidence if the witness attempted to so testify at a trial of the cause.” Sparkman v. Peoples National Bank of Tyler, supra, at 741. “Affidavits consisting of mere conclusions of law or fact or based on hearsay and which do not affirmatively show that the affiant has personal knowledge of the facts therein recited, are insufficient to prevent the granting of a motion for summary judgment.” Sparkman v. Peoples National Bank of Tyler, supra, at 742 and cases therein cited.

Viewing the summary judgment evidence in light of the foregoing rules, it is our opinion that the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements as to the plaintiff’s-appellee’s cause of action.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Noel D. WHITWOOD, Appellant, v. Faye A. WHITWOOD, Appellee.
    No. 5867.
    Court of Civil Appeals of Texas, Waco.
    Dec. 29, 1977.
    R. W. (Bill) Glenn, Glenn & Houser, Plano, for appellant.
    Richard F. McMullen and Waylon E. McMullen, McMullen & Porter, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Noel D. Whitwood from judgment for unpaid alimony due plaintiff Faye A. Whitwood under a Georgia decree.

Plaintiff sued defendant in Collin County, Texas for arrearage in alimony payments due plaintiff by virtue of a Georgia judgment.

Defendant by answer admitted he had not paid the alimony, but denied the Georgia judgment entitled to full faith and credit under Article IV, Section 1 of the Constitution of the United States.

Both parties moved under Rule 184a TRCP for the trial court to take judicial notice of the relevant statutory and case law of Georgia.

Trial was to a jury. The evidence was undisputed that defendant was in arrears $14,400. At the close of the evidence both parties moved for instructed verdict. The trial court granted plaintiff’s motion and thereafter rendered judgment for plaintiff for $14,400. plus 6% interest on the unpaid balances.

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

Findings of Fact
1) Plaintiff Faye A. Whitwood is a resident of Clayton County, Georgia.
2) Defendant Noel D. Whitwood is a resident of Collin County, Texas.
3) Plaintiff and defendant were divorced by final decree in the Superior Court of Clayton County, Georgia October 27, 1972.
4) Such order and Final Judgment and Decree ordered defendant to pay plaintiff $600. per month alimony.
5) Defendant has failed to make payments as ordered.
6) 7) $14,400. remains due and unpaid.
Conclusions of Law
1) The Superior Court of Clayton County, Georgia is a court of original jurisdiction.
2) Such court had jurisdiction to enter the Order and Final Judgment and Decree between the Whitwoods on October 27, 1972.
3) Exhibit 1 is an authenticated/exemplified copy of such Order, Final Judgment and Decree.
4) The rights of plaintiff to accrued alimony payments granted by the Superior Court of Clayton County, Georgia, in said Order and Final Judgment and Decree, are vested and absolute when they accrue and are not subject to retroactive modification or revocation by the rendering court as in accordance with Georgia law.
5) Pursuant to Article IV, Section 1 of the Constitution of the United States, the Order and Final Judgment and Decree entered by the Georgia Court is entitled to be accorded full faith and credit and to be made the basis of a judgment rendered by the District Court of Collin County, Texas.

Defendant appeals on 7 points contending:

1) The trial court erred in overruling defendant’s motion for Instructed Verdict.
2) The trial court erred in Conclusions of Law 4 and 5, since there was not legally and factually sufficient evidence to support same, and same are against the great weight and preponderance of the evidence.

Plaintiff introduced into evidence the Georgia Order, Final Judgment and Decree which required defendant to pay alimony. It is undisputed defendant has not paid $14,400. of the alimony required by the order.

Introduction of the Georgia Order made a prima facie case for plaintiff and the burden was on defendant to establish that the judgment was not final or subsisting. Mitchim v. Mitchim, Tex., 518 S.W.2d 362; Gard v. Gard, Tex.Civ.App. (El Paso) NWH, 244 S.W.2d 884; Houston v. Dunn, 13 Tex. 476.

And where a decree is rendered for alimony and is made payable in future installments, the right to such installments becomes absolute and vested on becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the Decree has been made prior to maturity of installments, since alimony decreed to a wife in a divorce proceeding is as much a debt of record, until the decree has been recalled, as any other judgment for money. Gard v. Gard, Tex., 241 S.W.2d 618; Stout v. Stout, Tex.Cr.App. (Texarkana) Er.Ref., 214 S.W.2d 891.

Further there was evidence from a Georgia lawyer, who qualified as an expert witness, that the Georgia Order, Final Judgment and Decree was final, and that the alimony amounts became vested and absolute under the Order, as the time passed when they were due to be paid.

Finally Roberts v. Mandeville, 217 Ga. 90, 121 S.E.2d 150, holds alimony amounts past due are vested and not subject to cancellation under the factual situation here involved.

All of defendant’s points and contentions are overruled.

AFFIRMED.


text:
    DALLAS EIGHT, LTD., et al., Appellants, v. AARON RENTS, INC., d/b/a MacTavish Rents, Inc., Appellee.
    No. 1092.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 29, 1977.

      W. W. Mitchell, II, Berman, Fichtner & Mitchell, Dallas, for appellants.
    Michael F. Linz, John B. Atwood, III, Creel, Atwood, Spinuzzi & Chapman, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This is a summary judgment case. Ap-pellee, Aaron Rents, Inc., d/b/a MacTavish Rents, Inc., brought suit against the appellants, Dallas Eight, Ltd., a limited partnership, and against the individual Sheldon Jonathan Freed, alleged to be the general partner of the limited partnership, alleging that Dallas Eight, Ltd., had pursuant to a written agreement leased certain furniture and equipment from the appellee. The ap-pellee in its original petition brought the suit in the form of a sworn account alleging that the appellants owed $11,866.92 for rentals money due, and further alleging that some of the rental furniture was missing, the value of which being $9,431.00 for which the appellants were liable under the agreement. Appellee later filed an amended petition alleging the same facts, but abandoning his plea on sworn account.

Only one of the appellants ever filed any pleadings in the cause, Sheldon Jonathan Freed filing his first amended original answer containing a sworn denial of the execution by himself or by his authority of any of the lease agreements or rental contracts, and further stating under oath that he denied being a general partner of Dallas Eight, Ltd. Dallas Eight, Ltd., never filed an answer to appellee’s petition although they did make an appearance before the court and participated in an agreed order allowing the appellee to retrieve any furniture in the possession of Dallas Eight, Ltd., that was the subject of dispute.

The appellee moved for summary judgment and accompanied its motion with the affidavit of Jean Fall, the custodian of the appellee’s records. The records were attached to this affidavit. No answer, counter-affidavits or other summary judgment proof was filed in response to the motion for summary judgment by either appellant.

After a hearing on appellee’s motion for summary judgment, the court rendered judgment against the appellants jointly and severally in the amount of $21,290.02.

We reverse and remand for a new trial.

The appellants assert seven points of error, the discussion of which will be made as necessary. It is sufficient at this point to say that appellants contend that appellee has not met its burden of proof to show the absence of a material issue of fact.

This suit is not one based upon a sworn account. The appellee’s first amended petition does not contain any affidavit to bring this action within the confines of Rule 185, Tex.R.Civ.P. In addition to this, this case involves a written lease agreement, and a suit on a sworn account must be based upon a transaction involving a sale on one side and a purchase on the other whereby title to personal property passes from one to the other. Morgan v. Morgan, 406 S.W.2d 347, 351 (Tex.Civ.App.-San Antonio 1966, no writ).

As we have previously stated, the summary judgment proof for the appellee consists of the affidavit of Jean Fall and the records of appellee attached thereto. One of the documents attached to the motion and accompanying affidavit is a written lease agreement made the basis of this suit which the appellee alleges was made between Dallas Eight, Ltd., and the appellee. The document is signed only by an individual named Stephens, and no proof whatsoever is shown establishing a link between Stephens and Dallas Eight, Ltd.

In her affidavit, Mrs. Fall states that the records “pertain to Dallas Eight, Limited . . . ” and that they “ . show Dallas Eight Limited . . . to be indebted . . . .” The records attached to this affidavit, which exceed ten in number, contain only two or three references to Dallas Eight, Ltd. Most of the records are carried in the names of various apartment complexes, and no proof of ownership of these complexes is offered by the appellee. The statements in the affidavit are conclu-sory, and it is the established rule that conclusions are not competent evidence to support a summary judgment. Hidalgo v. Surety Savings and Loan Association, 487 S.W.2d 702 (Tex.1972); Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961); Crain v. Davis, 417 S.W.2d 53 (Tex.1967); Phagan v. State, 510 S.W.2d 655 (Tex.Civ.App.-Fort Worth 1974, writ ref’d n. r. e.). The statements must be supported by the records attached and we find no such support here. Further, we cannot say the affidavit presented in this case is clear, direct and positive, as it must be to support a summary judgment when made by an interested witness. Evans v. Fort Worth Star Telegram, 548 S.W.2d 819, 820 (Tex.Civ.App.-Fort Worth 1977, no writ).

This court is hesitant to reverse the trial court’s summary judgment in favor of the appellee wherein Dallas Eight, Ltd., filed no answer to appellee’s petition and filed no response to the appellee’s motion for summary judgment. However, in view of the record we are presented with we have no alternative. The Texas Supreme Court has recognized that summary judgment may in certain instances be based solely on the pleadings. The court said in Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.1971), Footnote 1 at page 543:

“We are not to be understood as holding that summary judgment may not be rendered, when authorized, on the pleadings, as, for example, when suit is on a sworn account under Rule 185, Texas Rules of Civil Procedure, and the account is not denied under oath as therein provided, or when the plaintiff’s petition fails to state a legal claim or cause of action. In such cases summary judgment does not rest on proof supplied by pleading, sworn or un-sworn, but on deficiencies in the opposing pleading.” (Emphasis theirs.)

We do not feel that in this instance summary judgment is properly sustainable upon the pleadings since the case involves an unliquidated claim requiring proof.

If the movant’s evidence only serves to raise a fact issue, the opponent of the motion need not file any contradictory proof. First Bankers Insurance Company v. O’Hair, 417 S.W.2d 654 (Tex.Civ.App.-Amarillo 1967, n. w. h.); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Horn v. First Bank of Houston, 530 S.W.2d 864 (Tex.Civ.App.-Houston [14th Dist.] 1975, no writ). For the reasons stated above, we do not feel that appellee has proved a prima facie case. Therefore, the appellee has not met its burden of proof to establish as a matter of law that there are no genuine issues of material fact as to any of the essential elements of plaintiff’s (appellee’s) cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970); Prestegord v. Glenn, 441 S.W.2d 185, 187 (Tex.1969). It is clear the appellee has not met a movant’s burden when one considers that summary judgment should only be granted “ . when it clearly appears that only a question of law is involved and that there is no genuine issue of fact.” First Bankers Insurance Company v. O’Hair, supra; Swilley v. Hughes, supra.

In our opinion, the defects in proof here do not fall within the purview of the defects that must be objected to at the trial court or be waived on appeal. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 234 (Tex.1962); Woods Exploration and Producing Company, Inc. v. Arkla Equipment Company, 528 S.W.2d 568 (Tex.1975). Defects such as those in Youngstown are purely “formal defects” that the record reflects probably could have been corrected if objected to at the trial court. The defects we are confronted with in this case are matters of substantive proof and the record does not reflect that these matters could have been readily corrected in the affidavit if a proper objection had been made.

It appears from the record that when Dallas Eight, Ltd., failed to file an answer to appellee’s petition, the appellee had the opportunity to seek a default judgment pursuant to Rule 239, Texas Rules of Civil Procedure. In failing to seek this remedy, and in choosing to proceed on a summary judgment theory, the appellee assumed the burden of meeting the requirements of summary judgment proof. The burden was not met by the appellee. First Bankers Insurance Company v. O’Hair, supra; Swilley v. Hughes, supra.

Appellants’ third point of error as it pertains to the failure of appellee to show the absence of any issues of material fact in appellee’s cause of action against Dallas Eight, Ltd., is sustained.

Regarding the second appellant, Sheldon Jonathan Freed, the appellee’s first amended petition alleged that Freed was liable as a general partner of Dallas Eight, Ltd. Since we have previously held that the appellee did not prove the absence of any genuine issues of material fact regarding the cause of action against Dallas Eight, Ltd., it follows that an absence of genuine issues of material fact has not been proven by the appellee against Sheldon Jonathan Freed, since his liability is based upon being a general partner of Dallas Eight, Ltd.

The appellee asserts that Freed did not file a sufficient sworn denial of his capacity as a general partner of Dallas Eight, Ltd. The sworn pleading of Freed states that “ . . . Defendant denies that he was a general partner of Dallas Eight, Ltd., during the year 1974 for the reasons set forth m Defendant’s Third Party Petition previously filed herein and incorporated by reference.” The appellee states that this denial is not an absolute denial and refers to pleadings not before the court. The appel-lee further states that Freed admitted being a general partner of Dallas Eight, Ltd., but said he resigned.

We find no admissions of partnership in the record. Also, we find no summary judgment evidence showing that Sheldon Jonathan Freed is a general partner of Dallas Eight, Ltd. We think the sworn denial filed by Freed is sufficient to satisfy Rule 93(f), Tex.R.Civ.P. The denial is an absolute denial, the reasons for which are immaterial. Accordingly, appellants’ seventh point of error complaining of the lack of showing of general partnership is sustained.

The remainder of appellants’ points are rendered immaterial by the above holdings.

Judgment of the trial court is reversed and remanded.

Reversed and remanded.