author: JAMES, Justice.

text:
    Richard G. THOMAS, Appellant, v. INTERNATIONAL INSURANCE COMPANY, Appellee.
    No. 5446.
    Court of Civil Appeals of Texas, Waco.
    Sept. 11, 1975.
    Rehearing Denied Oct. 9, 1975.

      Bader, Wilson, Menaker, Cox & Branson, John B. Wilson, Jr., Dallas, for appellant.
    Vial, Hamilton, Koch, Tubb, Knox & Stradley, C. L. Mike Schmidt, Jr., Merrick C. Walton, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a workmen’s compensation case, and is the second appeal to come to this court. The first appeal was made by Plaintiff Thomas wherein he was awarded a take-nothing judgment against Defendant Insurance Co. See Thomas v. International Insurance Co. (Waco Tex. CA 1974) 507 S.W.2d 286, no writ history, in which the judgment of the trial court was reversed and the cause remanded for trial on the merits. There we held that the jury findings to the efféct that Thomas had sustained no total incapacity and no partial incapacity following the injury in question were so against the great weight and preponderance of the evidence as to be manifestly unjust. In re: King’s Estate (Tex. 1951) 150 Tex. 662, 244 S.W.2d 660.

Since our first opinion the cause has been tried a second time, wherein another jury has reached similar findings, more particularly hereinafter pointed out. Pursuant to this second verdict, the trial court entered judgment for Plaintiff Thomas for $240.25, from which he appeals. We again reverse the trial court’s judgment and remand the cause for another trial on the merits, for the reasons hereinafter stated.

Plaintiff-Appellant alleged he sustained a back injury while working for Neuhoff Brothers Packers, Inc., on December 28, 1970, which was a producing cause of total and permanent incapacity. The Defendant answered with a general denial. Trial was had to a jury which found:

(1) Plaintiff sustained an injury on December 28, 1970.

(2) Such injury was sustained while in the course of Plaintiff’s employment by Neuhoff Brothers Packers, Inc.

(3) Plaintiff sustained no total incapacity following such injury.

(8) Plaintiff has sustained or will sustain no partial incapacity following such injury.

(19) Medical care was reasonably required as a result of the injury.

(20) The Defendant failed to furnish within a reasonable time medical care reasonably required as a result of the injury.

(21) and (22) That Plaintiff expended or incurred $240.25 as a result of such required medical care.

Based upon the jury verdict the trial court entered judgment for the Plaintiff for $240.25 and costs from which Plaintiff appeals on eight points of error.

By Plaintiff-Appellant’s points 7 and 8 he complains that the jury’s findings of no total (Special Issue No. 3) and no partial incapacity (No. 8) and the findings of medical expenses in the amount of only $240.25 (No. 22) are so against the great weight and preponderance of the evidence as to be manifestly unjust. We sustain these points.

Plaintiff-Appellant Thomas was 37 years of age at the time of trial with a fourth grade education. He commenced working for Neuhoff Brothers Packers, Inc., in February 1967. At the time of the injury in question, he was working on an assembly line in what was called the “killing floor” of the packing plant, which killed and processed from 400 to 700 cattle per day. On December 28,1970, Thomas was assigned to the job of cutting off the heads of the cattle carcasses on the assembly line. He injured himself when he caught the head of a' carcass by the mouth in his left hand, severed it from the body with a knife in his right hand, and slung the cattle head around to put it on a de-horning table. This was heavy manual work, and this procedure was followed 400 to 700 times a day. However, on this particular occasion on December 28, 1970, when he turned to put a head on the de-homing table, he got a sharp pain in the lower part of his back. He kept working a little while longer, but “it got to hurting worse and worse.” He reported his injury to Henry Gonzales, his foreman, who responded only by saying, “oh, shoot,” and then turning and walking away. He traded jobs with another employee for the next few hours until quitting time, doing a lighter but bloodier type work. He had a lot of pain all night and called in for permission to see the company doctor the following morning. He called his foreman, Mr. Gonzales, on the telephone and sought permission to go to the company doctor, whereupon Gonzales hung up on him. He called Gonzales a second time and Gonzales hung up on him again. Thomas then went to the office of Dr. Cole, a company doctor; however, Dr. Cole refused to treat him because of company rules of Neuhoff that required him to get the approval of the foreman. After Plaintiff had been to Dr. Cole’s office, he (plaintiff) reported to foreman Gonzales who replied, “I don’t care what you do.”

Plaintiff then sought legal counsel with respect to his claim and to his need for medical care, and commenced a course of treatment under Dr. Herbert Kresh of Dallas, Texas. Defendant International Insurance Co. was the workmen’s compensation insurance carrier for Neuhoff. When it came to Defendant’s attention that Plaintiff had been injured and was under the care of Dr. Kresh, Defendant’s claims representative, James Bob Wilson, requested that Plaintiff be examined by Dr. Luedke, an orthopedic chosen by the Defendant. The examination by Dr. Luedke was admittedly for and in behalf of the Defendant. The Defendant Insurance Company secured an order of the Industrial Accident Board for Plaintiff to be examined by Dr. Luedke. Dr. Luedke’s report and recommendations, and the fact that Dr. Luedke’s examination was pursuant to an order of the Industrial Accident Board requested by Defendant were all excluded from evidence upon objection of Defendant’s counsel. After receipt of Dr. Luedke’s report of examination, claims representative Wilson authorized and agreed to pay for an electromyogram, following which Defendant’s claims man Wilson received another report from Dr. Luedke. Dr. Luedke’s first report stated that Plaintiff “may have some nerve root irritation,” and recommended an electro-myogram and possibly a myelogram. The electromyogram was performed by a Dr. Crane, who made a report to Dr. Luedke. Dr. Luedke then made a report to James Bob Wilson, saying “the EMG was suggestive of some nerve root irritation of L-5, S-l and possibly in the lower dorsal area.” He recommended hospitalization “if the patient is still having problems.”

After the examinations by Drs. Luedke and Crane, the Defendant Insurance Co. requested that Plaintiff be examined by Dr. Morris Sanders, a Neurosurgeon, who examined Plaintiff on April 27, 1971. Dr. Sanders arranged for Plaintiff to be hospitalized at St. Paul’s Hospital on July 13, 1971; however, Defendant refused to let Plaintiff be hospitalized and had same can-celled.

Plaintiff began to be treated by Dr. Kresh on January 4,1971, a week after the injury. Between then and the time of trial Dr. Kresh had seen him seventy-three times for treatment, medications, examinations, and a back brace. Dr. Kresh testified that Plaintiff had sustained a ruptured interver-tebral disc, that this is a condition that does not go away and does not repair itself, in which the symptoms come and go depending upon the pressure on the nerve, and in which it is not unusual for a person to have good days and bad days; that he had observed and treated Plaintiff for some three and half years and there was no change in his diagnosis, and that his diagnosis was verified by the consistency of his physical findings. He testified that in reasonable probability and to a reasonable degree of medical certainty, Plaintiff sustained an injury on December 28, 1970, that the injury was a ruptured intervertebral disc, that it was a producing cause of total incapacity which began December 28,1970, and will be permanent and progressive. Dr. Kresh was the only medical doctor to testify. Although the Defendant employed at least three medical doctors to examine Plaintiff (Drs. Luedke, Crane, and Sanders), Defendant did not call any doctor to refute Dr. Kresh’s testimony.

Dr. Kresh testified that his charges for his services (excluding charges for reports) was $1290.75 for his care and treatment of Plaintiff for his injury of December 28, 1970, and that same were necessary and reasonable. Further, that Plaintiff’s care and treatment by Dr. Stonie Cotten, M.D. (an orthopedic physician) incurred an additional expense of $263.40 for such injury, which was necessary and reasonable.

From December 28,1970, until September 15,1971, Plaintiff was not able to work and was unemployed. He experienced a great deal of pain and did not feel like doing any sort of job. He tried to haul a little trash with an old pickup with the help of his wife, but was able to earn only about seventy dollars before expenses. With the help of the state unemployment office he got a job with Dallas Cap and Emblem Co. making $50.00 per week. Shortly after Christmas, 1971, he was sick with the flu for about a week, and when he returned to work he found that he had been replaced.

He was again unemployed until February 1972, when he began to work for J. C. Ammons doing landscaping work. Some days he felt like he could do a good day’s work and other days he felt like doing nothing. After working all day he might be awake all night because óf the pain from the day’s work he had done. He did this work even though in pain much of the time, because he had a family to support and had to work. He did landscaping work until August 1972, when his back began to get worse.

He thereafter got a job as a forklift operator. He did this work with difficulty and with the help of associates, and continued to do this work to the time of trial. During this time he was under the treatment of Dr. Kresh, and lost a month from work obtaining treatment from Dr. Stonie Cotten, an orthopedist.

Cindy McCulloch, receptionist for Dr. Cotten, made the initial appointment for Plaintiff for March 7, 1974. She called Defendant the day before and obtained confirmation and authorization for examination and treatment of Plaintiff. Treatment by Dr. Cotten for Thomas continued through April 4, 1974. Dr. Cotten’s first statement for services was sent to Defendant on March 25, 1974. After examination, X-rays, and physical therapy, Dr. Cotten’s Operating Room Technician, Jim Bicknell, was told by the doctor that hospitalization was recommended for Plaintiff. Mr. Bick-nell took Plaintiff’s chart and Plaintiff to his office, called Defendant Insurance Co. and requested clearance for hospitalization. The request was denied. Subsequently a letter was received from J. B. Littrell, Defendant’s claims service manager, saying no authorization had ever been given for Plaintiff’s treatment. Following this latest denial of hospital care for Plaintiff by Defendant, Plaintiff returned to and continued under the care of Dr. Kresh.

The testimony of Plaintiff and that of Dr. Kresh concerning Plaintiff’s injury and its effect on his abilities was corroborated by other witnesses who were fellow employees. Joe Drake, a foreman at Whitaker Metals (where Plaintiff was employed as a forklift operator) testified that he had observed Thomas having difficulty doing his work, and that other employees helped Plaintiff with his work. Mr. Drake said as a foreman, with authority to hire and fire, and putting aside questions of friendship and charity, but based upon physical condition, he would not hire Plaintiff or anyone in Plaintiff’s condition.

Robert Haley, a fellow employee, testified he observed Plaintiff having difficulty pulling orders and picking up steel, and that he and other employees volunteered to help Plaintiff in his job. Haley testified that he himself regularly .carries the five gallon water jug for filling the radiator of the forklift ever since he noticed Thomas experiencing difficulty handling that part of the job.

Dr. Kresh testified that Plaintiff was working out of “sheer drive and motivation and out of actual physical need. . he has strong drive and motivation to be self-sufficient. So he works when he can and when he can’t he has to stop.”

The evidence showed that in July, 1966, Plaintiff sustained an injury to his neck, left lumbar region and low back while working for Acme Brick Company in Ellis County; and in August, 1969, while working for Neuhoff he sustained an injury to his left leg, left groin, left back lumbar area and neck. However, the pertinent evidence was to the effect that he had made recovery from these antecedent injuries and had been doing hard duty on a regular basis for Neuhoff for a substantial period of time prior to the injury in question of December 28, 1970.

The Defendant never made any effort to explain why they refused to furnish hospitalization to Plaintiff even though the three doctors employed by them who examined Thomas recommended hospitalization. Neither did they offer any doctor’s testimony to dispute the clear opinion of Dr. Kresh concerning Thomas’s disabilities as above pointed out.

In the light of the foregoing, we reverse the trial court’s judgment and remand the cause for a new trial.

Since the cause is to be retried, we invite attention to certain events that transpired in the last trial complained of by Plaintiff’s assignments of error, in the hope that same would not occur again.

By Plaintiff’s Point of Error No. 4, he complains the trial court erred in admitting in evidence over Plaintiff’s objection, hospital records containing medical opinions and conclusions, contradictory and controversial on their face, and not based upon reasonable medical probability. We sustain this point.

The Defendant offered into evidence all of the hospital records of Parkland Hospital pertaining to Plaintiff Thomas, to which Plaintiff objected on the ground that they contained diagnosis and conclusions that were contradictory and inconclusive, and also many entries of which had no relevancy to Plaintiff’s injury in question or antecedent injuries. The Plaintiff also made a detailed motion to strike the records after they were admitted into evidence. The trial court admitted all of the hospital records in evidence. This was error. Many of these entries were manifestly not based upon reasonable medical probability. Since these records were voluminous, it would not be practicable to detail the portions which should have been excluded. However, as examples of the speculative and contradictory entries, in one place a “reporting physician” reached a diagnosis of “early stage of congestive heart failure”, while another summary concluded, “there were no signs of congestive heart failure.” At another place in the records there was an opinion that Thomas had brucellosis, whereas at still another place an opinion entry recited that he did not have brucellosis.

Hospital records are admissible when properly proved up under Article 3737e, Vernon’s Texas Civil Statutes, as business records. However, our Supreme Court has held that entries of hospital records are not admissible without exception; but they are admissible only in those instances where it can be said that the diagnosis records a condition resting in reasonable medical certainty. Loper v. Andrews (Tex.Sup.Ct.1966) 404 S.W.2d 300. Diagnostic entries in hospital records (even though properly authenticated) are not competent evidence of the condition they describe where they are genuinely disputed, and necessarily rest in expert opinion, speculation or conjecture. Loper v. Andrews, supra. Also see Travis Life Insurance Go. v. Rodriguez (Austin Tex.CA 1959) 326 S.W.2d 256, error refused NRE at 160 Tex. 182, 328 S.W.2d 434. Also, for a good discussion of this problem, although it did not involve hospital records but ordinary business records, see Coastal States Gas Producing Co. v. Locker (Houston 14th Tex.CA 1968) 436 S.W.2d 592, no writ history.

Plaintiff-Appellant’s fifth point asserts the trial court erred in excluding the testimony and evidence offered on Plaintiff’s bill of exceptions, which evidence established that Defendant had employed and authorized Drs. Luedke, Crane, and Sanders in connection with Plaintiff’s claim of injury, and who recommended hospitalization; and by excluding such evidence, denied Plaintiff evidence admissible under an exception to the hearsay rule. We sustain this point.

As stated above, Drs. Luedke, Crane, and Sanders were all selected, authorized, and employed by the Defendant to examine Plaintiff. They each recommended that Plaintiff be hospitalized. Dr. Luedke wrote a letter to James R. Wilson, claims representative for Defendant dated March 23, 1971, in effect recommending hospitalization, after Dr. Crane’s examination. Additionally, after Dr. Luedke examined Plaintiff, he told Plaintiff, “I know you have a problem, but before I can do anything about it, I will have to make a note to them and wait to see what they say. If they want me to see you again, I will.” Plaintiff never heard anything more from Dr. Luedke. Dr. Sanders told Plaintiff he was going to make arrangements to put him in the hospital, which he did, which arrangements were later cancelled by the Defendant. The Defendant had authorized Dr. Gotten to examine and treat the Plaintiff, which arrangement was later repudiated and cancelled by Defendant, and Defendant refused to pay Dr. Cotten for his services rendered to Plaintiff.

Plaintiff tendered all this evidence in the trial to the effect that these doctors employed by Defendant had recommended that Plaintiff be hospitalized. The trial court excluded this testimony. This was error. These doctors, having been employed and authorized by Defendant to examine Plaintiff, were the agents of Defendant. Therefore, any out-of-court statements made by these doctors, written or oral, to the effect that Plaintiff should be hospitalized, were admissible against the Defendant Insurance Co. as an exception to the hearsay rule. These statements made by these doctors regarding the physical condition of Plaintiff were admissible. See Texas Employers Insurance Assn. v. Dimsdale (Dallas Tex.CA 1969) 440 S.W.2d 359, NRE; Bituminous Casualty Corp. v. Jordan (Waco Tex.CA 1961) 351 S.W.2d 559, no writ history.

As a related matter, and as a part of Plaintiff-Appellant’s first point of error, in the jury argument Plaintiff’s counsel undertook to show that Defendant had kept sending Plaintiff from doctor to doctor, and tried to comment on the failure of Defendant to call any of these doctors as witnesses. The Defendant objected to this argument on the ground it was hearsay. The trial court sustained the objection, and excluded this argument. This was error. Plaintiff was entitled to call the jury’s attention to the fact that these doctors employed by Defendant did not testify. Meyer v. Great American Indemnity Co. (Tex.Sup.Ct.1955) 154 Tex. 408, 279 S.W.2d 575; Consolidated Underwriters v. Lowrie (Beaumont Tex.CA 1939) 128 S.W.2d 421, writ refused.

Plaintiff-Appellant’s sixth point of error complains of the trial court’s permitting, over Plaintiff’s objection, the changing of answers to certain interrogatories and requests for admissions, and in refusing to allow reference either to the original answers given or to the names of the persons giving the original answers, thus denying Plaintiff the opportunity and right to impeach the credibility of Defendant on a material issue, that of principal-agent relationship between Defendant and Dr. Morris Sanders.

In an effort to establish the principal-agent relationship between Defendant and Dr. Morris Sanders, a neurosurgeon, Plaintiff propounded his Interrogatory No. 21 to Defendant as follows:

“Did defendant, by and through an authorized agent and representative, request an examination of Richard G. Thomas by Dr. Morris Sanders . . . ?”

Defendant’s answer to this question, sworn to by John B. Littrell, Jr., (Service Office Claims Manager for Defendant) was “yes.”

Also, Plaintiff sought the same evidence by his Request for Admission No. 31:

“That the defendant herein has requested Dr. Morris Sanders to examine Richard G. Thomas.”

The response thereto was “admitted” and signed by Mike Schmidt, attorney for Defendant.

After the trial was well under way, the Defendant’s counsel moved the court to permit him to change the above answers by the filing of amended answers. That is to say, he wanted to change the answer of Interrogatory No. 21 from “yes” to “no”, and have same signed and sworn to by James Bob Wilson, rather than by the signer of the original interrogatory, John B. Littrell, Jr. Defendant’s counsel further wanted to change the answer of Plaintiff’s Request for Admission No. 31 from “admitted” to “denied.”

Defendant’s counsel told the court that he had not learned the true facts “until last night,” from information from Dr. Sanders’ office. In order to verify to the court that his changed answers were “the true answers,” without Littrell, he told the court: “I will have Dr. Sanders on the stand.”

However, Dr. Sanders was not called as a witness, did not testify, and there was no showing any effort was made to obtain his testimony.

Acting upon the motion and statements of Defendant’s counsel, the trial court permitted Defendant to change the answers as requested, and ordered Plaintiff’s counsel to make no mention or intimation to the jury that the answers had been changed. And that is the way it took place before the jury. The changed answers were read to the jury and the jury was never informed in any way that the answers had been changed. By bill of exception it was proved through James Bob Wilson that he signed the changed answer upon the request of Defendant’s counsel, because counsel told him the answer should be changed, based upon “the file information.” Upon further cross-examination, Mr. Wilson said, “There is nothing in my file to show that my company authorized treatment by the doctor,” and that his changed answer of “no” was based upon “a lack of information in the file.” Wilson had never talked to John B. Littrell about changing this answer, and had not talked to anybody in Dr. Sanders’s office about it.

The Plaintiff was prohibited by the trial court from showing the jury that the answers had been changed, and the background facts concerning the changed answers. Defendant-Appellee argues that he had a right under Rule 168, Texas Rules of Civil Procedure, to make the change. It is true that Rule 168 as amended effective February 1, 1973, contains provisions for changing answers to interrogatories under certain conditions. It was pretty late in the game for Defendant to be requesting a change of the answers at all. However, assuming without deciding that the trial court’s permission to change the answers was a proper exercise of judicial discretion, it was error for the trial court to forbid the Plaintiff from offering evidence to explain to the jury the reasons behind the changed answers. The Plaintiff should have been permitted to impeach the Defendant’s changed answers by a showing of the former answers, as well as the purported basis for changing the answers, just as impeachment would be proper for any other prior inconsistent statement.

In view of another trial we add that it is our view that evidence of Plaintiff’s prior drinking is too remote and is inadmissible.

For the reasons hereinabove stated, judgment of the trial court is reversed and the cause is remanded for trial upon the merits.

Reversed and remanded.


source: Caselaw Access Project

author: REYNOLDS, Justice.

license: Public Domain

text:
    Barnaby DE LA CRUZ, Appellant, v. COMBINED AMERICAN INSURANCE COMPANY, Appellee.
    No. 8596.
    Court of Civil Appeals of Texas, Amarillo.
    Sept. 15, 1975.
    Rehearing Denied Oct. 14, 1975.

      John L. Lesly, Amarillo, for appellant.
    Elliott, Churchill, Hansen, Dyess & Max-field, Mike D. Gibbs, Dallas, for appellee.
   REYNOLDS, Justice.

■ Sixteen-month-old Yolanda De La Cruz suffocated when dirt thrown by children got in her nose and mouth. She was insured against accidental death solely caused by injuries occurring from the accidents enumerated in the insurance policy, which listed death “by drowning,” but did not mention suffocation. When the insurance company denied liability, her father-beneficiary brought this suit, contending that Yolanda died as a result of drowning. The sole question is whether the death occurred “by drowning” within the meaning of the insurance coverage. From the stipulated facts, the trial court summarily determined, and correctly so, that Yolanda’s death was not the result of drowning. Affirmed.

The father-beneficiary argues that, within the meaning of the insurance coverage, Yolanda died as the result of drowning as that word is defined in Dorland’s Illustrated Medical Dictionary (25th Ed.) to be “suffocation and death resulting from filling of the lungs with water or other substances or fluid so that gas exchange becomes impossible.” We do not agree. It is at once apparent that the definition is inapplicable to the stipulated facts because there is no evidence that Yolanda’s lungs were filled with water, fluid or other substances.

Moreover, unless the words used in, and to describe the coverage afforded under, an insurance policy are used in a technical sense, the meanings attributed to them are the ordinary lay meanings to the general public. Gallup v. St. Paul Insurance Company, 515 S.W.2d 249 (Tex.1974). The word “drowning” is used in its ordinary sense in the insurance policy. Although to persons skilled in the niceties of the language “drowning” may mean suffocation in water or liquid, Webster’s New International Dictionary (2nd Ed.), the general public uniformly understands and uses the word “drowning” as meaning to deprive of life by immersion in water or other liquid. Webster’s, supra; Gragg v. State, 148 Tex.Cr.R. 267, 186 S.W.2d 243 (1945); Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965). The word “suffocate” is likewise understood and used as meaning to kill by stopping or preventing respiration, Webster’s, supra; Thomas v. Seaside Memorial Hospital of Long Beach, 80 Cal.App.2d 841, 183 P.2d 288 (1947), particularly where breathing becomes impossible because the mouth and nose are covered. Langley v. Durham Life Insurance Company of Raleigh, N.C., 261 N.C. 459, 135 S.E.2d 38 (1964).

The words “drowning” and “suffocate” are not defined nor understood by the general public to have the same essential meaning. Accordingly, we hold that death by suffocation from dirt in the nose and mouth is not death by drowning as that term is generally used in a policy of accident insurance.

The summary judgment of the trial court is affirmed.


author: OSBORN, Justice.

text:
    KWEL, INC., Appellant, v. John Preston PRASSEL, Appellee.
    No. 6464.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 17, 1975.

      Rassman, Gunter & Boldrick, James P. Boldrick, Midland, for appellant.
    Kerr, Fitz-Gerald & Kerr, Ted M. Kerr, Midland, for appellee.
   OPINION

OSBORN, Justice.

This appeal results from the trial Court’s denial of an application for a temporary injunction in a suit seeking to enforce a covenant not to compete in an employment contract. We affirm.

Mr. Bob Hicks, General Manager of Radio Station KWEL in Midland, Texas, hired Appellee as a radio announcer in November, 1974. An employment contract was executed on November 18, 1974, which contained the following provision:

“While working under the provisions of this agreement, you will not engage in professional activities as an announcer, actor, master of ceremonies or other performer without express prior consent of the Company. It is further agreed that, for a period of 12 months following the termination of this contract, or any extension hereof, you will not engage in announcing or sales activities in connection with any advertising media within a 75 mile radius of the office of Company.”

For some unexplained reason, the names of the parties were reversed when the contract was signed, and a literal reading of the agreement would indicate Appellee had hired Bob Hicks as an announcer and that Mr. Hicks was the party who coveted not to compete. None of the parties complain about this defect in the contract.

Upon trial of the case, Appellee testified that he signed the contract, worked as an announcer for KWEL until March 29, 1975, when his employment was terminated at the request of Mr. Hicks, who suggested that he find another job. Within about a week, Appellee was employed by KNAM-FM Radio Station in Midland as an announcer and producer of commercial announcements. The new job entailed the same type work he did at KWEL, but the broadcasting format at the new job was different, in that he was only on the air about three minutes every hour with station identification, time, temperature and some identification of records being played. He acknowledged that this work was a violation of his employment contract with KWEL, but denied that it caused any damage to his prior employer. While at KWEL, he did not have any selling duties and did not call upon advertising customers. He specifically denied providing any customer list or price list from KWEL to KNAM-FM.

Mr. Hicks testified that Appellee had access to customer list, drop dates when advertising contracts expired, and that his rapport both with customers and advertisers could be detrimental when there was a change from one station to another. But he readily acknowledged that he did not know that Mr. Prassel ever saw KWEL advertising price list, did not know that Mr. Prassel made any record of advertising drop dates, and acknowledged that the only way to tell if there had been any loss of customers would be through a listeners’ survey. His exact testimony was as follows:

“Q Well, all I’m asking is do you know whether or not he did that, he went and got your customer list out and your price list out?
“A To my knowledge, I didn’t see him do it.”
U * * *
“Q But at any rate, would you not agree that it would be very difficult, unless someone wrote those drop dates down, if his position was as an announcer and not in the business office?
“A I don’t know that he didn’t write it down.
“Q But do you know that he did?
“A No, sir. Nor do I know that he didn’t.
“Q Mr. Hicks, other than the fact that he might have — or a person could have written down the dates of the drop dates, do you know of any other amount of damage that possibly could occur?
“A Yes, sir, possibly we could lose listeners, because in my opinion John is a very good radio announcer.
“Q Do you know of any listeners you have lost, or can identify any listeners you will lose, because of that?
“A This would probably have to be determined by a survey.”

Appellant contends in a single point of error that the trial Court erred in denying it a temporary injunction and that such was an abuse of discretion. Certainly we can agree that the terms of the covenant are reasonable. Professional Beauty Products, Inc. v. Derington, 513 S.W.2d 236 (Tex.Civ.App.—El Paso 1974, writ ref’d n. r. e.); Middagh v. Tiller-Smith Company, 518 S.W.2d 589 (Tex.Civ.App.—El Paso 1975, no writ).

To warrant the issuance of a temporary injunction, the applicant must show both a probable right thereto on final hearing and a probable injury in the interim. Millwrights Local Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683 (Tex.1968). The evidence establishes a probable right but not a probable injury, and thus the application for an injunction should not have been granted. Armendariz v. Mora, 526 S.W.2d 542 (Tex.1975).

Evidence that Appellee had access to the station price list is not evidence that he obtained it or used it adversely to KWEL. Evidence that he saw the drop dates for advertisers is not evidence that he recorded or memorized those dates and used them adversely to KWEL. Evidence that “we could lose listeners” is not evidence that KWEL either did or probably will lose some advertising audience.

In affirming the order of the trial Court, we follow the rules set forth in Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961), where Chief Justice Calvert, writing for the Court, said:

“ * * * An applicant for a temporary injunction seeks extraordinary equitable relief. He seeks to immobilize the defendant from a course of conduct which it may well be his legal right to pursue. Crowded dockets, infrequent jury trial weeks, or trial tactics can often delay a trial of a case on its merits for many months. The applicant has, and in equity and good conscience ought to have, the burden of offering some evidence which, under applicable rules of law, establishes a probable right of recovery. If not, no purpose is served by the provisions of Rule 680, Texas Rules of Civil Procedure, limiting the time for which a restraining order granted without a hearing can operate and requiring a hearing before a temporary injunction can issue. If he cannot or does not discharge his burden he is not entitled to extraordinary relief. Writs of injunction should not issue on mere surmise.” (Emphasis added).

The Appellant’s point of error is overruled and the order of the trial Court is affirmed.


author: WARD, Justice.

text:
    Jack POINDEXTER, Appellant, v. ESTATE of Thomas E. BRANDON, Deceased, et al., Appellees.
    No. 6460.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 17, 1975.
    Gloria T. Svanas, Odessa, for appellant.
    Fugit, Pipes & Bobo, Gerald K. Fugit, Odessa, Merritt H. Gibson, Longview, for appellees.
   OPINION

WARD, Justice.

In the County Court at Law of Ector County and in a pending probate proceeding where Independent Executrices of the Estate of Thomas E. Brandon had been duly appointed, the two Independent Executrices filed what they termed a “Motion to Show Cause” against the Appellant, Jack Poindexter, alleging that he had secreted certain properties belonging to the estate. In response to this motion, the Court issued a notice to show cause requiring the Appellant to appear in the independent probate proceeding to show cause why the properties belonging to the estate should not be surrendered. The show cause order also required the Appellant to produce in the independent probate proceeding “an inventory and appraisement of his mother’s estate, JACQUE POINDEXTER BRANDON.”

The Appellant filed a plea to the jurisdiction of the Court which the trial Court overruled.

The Appellant asserts that if the Independent Executrices have a claim against him that they proceed by proper suit and citation, with the citation meeting the requirements of Rule 101, Tex.R.Civ.P.; that any notice to show cause to one not a party to litigation is of no force and effect; and finally, if the proceeding be a means to compel his attendance as a witness in pending litigation, that proper subpoena or subpoena duces tecum be issued.

Regardless of how valid the complaints of the Appellant might be, jurisdiction in this matter is not presented. The order overruling the plea is interlocutory, not final, and the appeal does not lie.. Wilbanks v. State ex rel. Needham, 519 S.W.2d 280 (Tex.Civ.App.—Waco 1975, no writ).

The appeal is dismissed.


text:
    Susan B. McCARTHY, Appellant, v. William L. JESPERSON, Appellee.
    No. 6447.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 17, 1975.
    Rehearing Denied Oct. 15, 1975.
    Gade, Schwarzbach & Marsh, Herbert E. Marsh, Jr., El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, J. F. Hulse, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This is an appeal under Rule 329, Tex.R. Civ.P., from a judgment rendered on service by publication where the Appellant did not appear or make answer in the trial Court. We reverse and remand for a trial on the merits.

The Appellee filed suit alleging that the parties hereto were married on December 10, 1969, and divorced in New Mexico on April 11, 1972. He further alleged that prior to such marriage he had created a trust for his three children and placed a tract of land in Eastwood Heights in the City of El Paso in the trust estate. He further alleged that in June, 1970, the Eastwood Heights property was sold and that the proceeds of the sale were used to purchase another tract of land on Cork Street in El Paso, and that this tract became impressed with said trust with the children as beneficial owners, even though the parties hereto were named as grantees in that deed. He also alleged that the divorce decree divided the community property but made no mention of the land on Cork Street which allegedly was held in trust. The petition sought to divest Appellant of any title or interest she might have in the property claimed to be held in trust.

Although the petition alleged Appellant resided in Canoga Park, California, citation was directed to her at Sherman Oaks, California. It was returned unserved. Based upon Appellee’s affidavit that Appellant’s whereabouts was unknown, she was cited in a citation by publication. No answer was filed and on May 24, 1974, a default judgment was entered divesting all of Appellant’s interest in the tract of land on Cork Street in Appellee, subject to the terms of the trust for his children. That judgment contains the following recital:

“* * * the Defendant SUSAN B. McCARTHY, although duly served by citation by publication in the manner and for the time provided by law, and having been required thereby to appear and answer on April 29, 1974, has not answered herein, and did not appear, and has wholly made default herein, whereupon the Court granted Plaintiff’s motion for default judgment, subject to the evidence to be offered supporting the said judgment. * *

On July 19, 1974, Appellant filed a Motion for New Trial to which there is attached an affidavit of counsel concerning Appellant’s address in California and Ap-pellee’s acquaintance with persons who knew her address. The unsworn petition alleges that “* * * . Defendant has a good and meritorious defense to Plaintiff’s cause of action and that she will prove that the house in question, located at 10038 Court Street, El Paso, Texas, was the community property of the marriage between herself and the Plaintiff, and that she does have a legal and equitable interest in said real property.” The narrative Statement of Facts filed herein shows that at the hearing on Motion for New Trial Appellant testified concerning her address in California, her complete lack of knoweldge of this suit until after judgment, and that the residence on Cork Street was purchased during her marriage to Appellee and that she claims a vested interest in such property. Appellee offered no testimony at the hearing.

There is no procedure in Texas for a default judgment following service by publication. The trial Court failed to comply with the provisions of Rule 244, Tex.R. Civ.P., in this case. There was no appointment of an attorney to defend the case and no statement of the evidence was approved and signed by the judge. In a direct appeal, this constitutes reversible error. Villegas v. Shane-Michael Optical Company, 443 S.W.2d 571 (Tex.Civ.App.—El Paso 1969, no writ).

Under Rule 329, the defendant must show “good cause” in order to be entitled to a new trial. The two elements of good cause are lack of actual knowledge of the suit prior to rendition of the judgment and a meritorious defense. Dennis v. McCasland, 128 Tex. 266, 97 S.W.2d 684 (1936); Smith v. United Gas Pipe Line Co., 149 Tex. 69, 228 S.W.2d 139 (1950); McDonald, Texas Civil Practice, Vol. 4, § 18.23.2; Huffman & Mockford, Setting Aside Judgments Against the Absent Defendant, 37 Texas L.Rev. 208, 212 (1958).

Appellant’s lack of knowledge of this suit until after judgment was entered is not rebutted or questioned. We believe the pleading and sworn testimony set up a meritorious defense. Admittedly the property was acquired during marriage and deeded to the Appellant and Appellee as grantees. This alone would raise a presumption that it was jointly owned community property in which Appellant would have an interest. In passing on the Motion for New Trial and the sufficiency of the evidence to support it, courts should exercise liberality in favor of a defaulted party having a day in court. Hunsinger v. Boyd, 119 Tex. 182, 26 S.W.2d 905 (1930); Western Union Telegraph Company v. McGinnis, 508 S.W.2d 147 (Tex.Civ.App.—San Antonio 1974, no writ).

Appellee strongly urges that the Motion for New Trial does not allege “facts” which constitute a meritorious defense as required under the holding in Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966). We agree that the pleading is certainly no model form and that it could have more precisely stated the basis for Appellant’s claimed interest. Nevertheless, the reply thereto contained no exception to the allegations and apparently no objection was made to the evidence offered in support of the contention. We conclude that the pleading and proof “sets up a meritorious defense.” Torres v. Casso-Guerra & Company, 512 S.W.2d 777 (Tex. Civ.App.—San Antonio 1974, writ ref’d n.r. e.).

The trial Court abused its discretion in denying Appellant’s Motion for a New Trial. Western Union Telegraph Company v. McGinnis, supra. The judgment of the trial Court is reversed and the cause is remanded for a new trial.


text:
    MINNEHOMA FINANCIAL COMPANY, INC., Appellant, v. Orris W. BOWEN, Individually and d/b/a Bowen Mobile Home Sales, Appellee.
    No. 6444.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 17, 1975.
    Friedman, Ehrlich & Rosen, Stanley Ro-sen, El Paso, for appellant.

      John H. Whitaker, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This case involves a suit by a finance company against a mobile home salesman for interest and finance charges, and a cross-action to recover loan reserves. Based upon a jury verdict, judgment was entered for recovery on the cross-action. We reverse and remand for a new trial.

In its first amended original petition, Appellant alleged a breach of contract by Ap-pellee, and upon trial of the case it offered in evidence “Dealer’s Application for Floor Plan Accommodation” executed by Appel-lee on November 10, 1967, and “Agreement for Purchase of Dealer’s Installment Conditional Sales and Time Sales Contracts and Reserve Agreement” executed by Appellee on November 30, 1967. Under the latter agreement, the dealer guaranteed payment of all sums required to be paid under each contract purchased by and assigned to Appellant. Proof was offered to show default under one contract which resulted in a repossession deficiency of $1,806.50, plus bank drafting fees. In addition, proof was offered to show interest due under the floor plan contract of $1,401.53. After a payment credit of $689.84, Appellant contended it was entitled to recover $2,521.24.

On the other hand, Appellee by way of cross-action contended that he was entitled to recover $3,815.99 in his account for dealer’s unearned discount, $1,045.30 in his dealer reserve account, and $700.00 in a special reserve account. The August, 1974, summary sheet of the parties’ transactions showed contingent liabilities under outstanding contracts of $18,287.83, with a dealer reserve of $1,249.71, and dealer share of unearned discount of $2,794.14, but nothing for the special reserve. Under the November 30, 1967, agreement, Appellant could accumulate in a dealer reserve account up to 10% of the outstanding contingent liability of the dealer.

The jury found Appellee to have defaulted under the guarantee provision of its agreement with Appellant, but found no damages to have resulted. It also found Appellant owed Appellee “$3,766.63 less contingent liability” for a “credit reserve account,” and $969.00 for a special reserve account.

Appellant by several points of error attacks the adverse jury findings. It also complains of the failure of the trial Court to submit certain requested special issues. The Appellee has filed no brief in this case.

We sustain the first four points of error which state that there is “no evidence” and “insufficient evidence” to support the jury findings that Appellant owed Appellee $3,766.63 less contingent liability for a credit reserve account.

As to the “no evidence” points, we consider only the evidence in support of the jury finding and disregard all other evidence. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). In passing on the “insufficient evidence” points, we consider the entire record. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Although there was considerable evidence as to the dealer reserve, the special reserve and the unearned discount, we find neither exhibits nor testimony as to a “credit reserve account,” nor is there any evidence as to the basis for such account or the amount of such account. We have found no combination of figures from any of the exhibits, nor any of the testimony which supports the jury finding of $3,766.63 in answer to Special Issue No. 4. None of the testimony and none of the exhibits, which relate to the dealer reserve, the special reserve or the unearned discount, identify such sums as a “credit reserve account,” but instead all of the evidence relates directly to the various named accounts as identified on the Appellant’s summary sheet with the amount of the contingent liability. Points of error one through four are sustained.

It is not necessary for us to pass on those points of error which complain about a failure to submit certain requested special issues. We have an affidavit from the Court Reporter that he could not find his notes which contained the requested issues. Without a bill of exception or other record to show the exact issues requested, this Court cannot determine that there was any error in refusing the requested issues. Nevertheless, since the case must be retried, it does appear that the issue, which the trial Court submitted on the issue of a debt arising from a default under the guarantee provision of the contract, did not submit an issue with regard to interest owed under the floor plan contract which appears to have been raised under the evidence, and upon retrial, if such issue is raised by the pleadings and the evidence, it should be presented to the jury for their determination.

Although we have sustained Appellant’s “no evidence” points of error, the judgment of the trial Court cannot be reversed and judgment rendered for Appellant because the proper prejudgment predicate for a rendition does not exist in this case. J. Weingarten, Inc. v. Razey, 426 S.W.2d 538 (Tex.1968); O’Connor, Appealing Jury Findings, 12 Hous.L.Rev. 65, 70 (1974).

The judgment of the trial Court is reversed and the case is remanded to the trial Court for a new trial.


text:
    Eloise Baldridge STOVER, Individually and as Independent Executrix of the Estate of Lena V. Baldridge, Deceased, Appellant, v. Margaret G. SEITZ, Appellee.
    No. 5431.
    Court of Civil Appeals of Texas, Waco.
    Sept. 18, 1975.
    Rehearing Denied Oct. 9, 1975.

      Roe & Ralston, William David Ralston, Corsicana, for appellant.
    Wright & Gill, Larry Wright, Corsicana, for appellee.
   OPINION

JAMES, Justice.

This is a suit involving the construction of a joint, mutual and contractual will. Plaintiff-Appellee Mrs. Margaret G. Seitz brought this suit against Defendant-Appellant Mrs. Eloise Baldridge Stover, individually and as Independent Executrix of the Estate of Lena V. Baldridge, Deceased, for a declaratory judgment construing the joint and mutual will of J. H. Baldridge and Lena V. Baldridge, both now deceased, who were husband and wife.

J. H. Baldridge and wife Lena V. Bal-dridge had two children, to wit, Doyle M. Baldridge, a son, and Eloise Baldridge Sto-ver, a daughter, Defendant-Appellant herein. Doyle died after his father’s death but before his mother’s death. Plaintiff-Appel-lee Mrs. Margaret G. Seitz is the remarried widow of Doyle M. Baldridge, deceased, and the sole devisee of his probated will.

The question before us is whether, at the time of his father’s death, Doyle got an indefeasible remainderman’s interest (in which event he could have devised it to his widow, Plaintiff-Appellee, now Mrs. Seitz) or whether he got a defeasible remainder-man’s interest which was defeated by his death prior to that of his mother, in which latter event the entire estate of J. H. and Lena V. Baldridge would go to Mrs. Eloise Stover, Defendant-Appellant.

Each side filed a Motion for Summary Judgment. The trial court granted Plaintiff Mrs. Seitz’s motion and overruled Defendant Mrs. Stover’s motion, construed the will so as to hold in effect that Doyle got an indefeasible remainderman’s interest at his father’s death, and awarded Plaintiff Mrs. Seitz an undivided one-half interest in the estate of Lena V. Baldridge, deceased, from which summary judgment Defendant Mrs. Stover appeals. There being no material fact issues in the case, but only questions of law, we reverse and render the cause and hold that Plaintiff-Appellee Mrs. Seitz take nothing.

On April 28, 1947, J. H. and Lena V. Baldridge executed a single instrument as their “Joint and Mutual Will”. That this Will is also a contractual Will is undisputed, since in Item Fifth of the Will the joint testators agreed to abide by this Will and not make any Will or codicil “different than this before or after death of either one of us.”

Item Second of the Will, containing the critical language, reads as follows:

“It is our will and desire that the survivor of us, J. H. Baldridge or Lena V. Baldridge, as the case may be, shall, with the rights and authority below given, have all the estate of every description, real, personal or mixed, which either or both of us may own, to be used, occupied, enjoyed, bargained, sold or disposed of by, during the life of such survivor, as such survivor shall desire, all of said property of every description to vest in fee simple in the survivor, with no restrictions whatsoever as to the disposition of any of the property, either real, personal or mixed, nor of the proceeds therefrom, without the joinder of any other person or persons, and the judgment of the survivor of either of us shall be final; and that upon the death of such survivor any such estate then remaining, if any, shall be divided, share and share alike, between our son, Doyle M. Baldridge, and our daughter Eloise Baldridge Stover, or their bodily heirs, to vest in fee simple, to bargain, sell or dispose of as they may wish or see proper.” (emphasis supplied.)

On October 18,1955, J. H. Baldridge died. He was survived by his widow, Lena V. Baldridge, his son Doyle M. Baldridge, and his daughter Eloise Baldridge Stover. The Will in question was probated as his Last Will and Testament with his wife as executrix.

On June 14, 1962, Doyle M. Baldridge died testate leaving his wife (Plaintiff-Ap-pellee) Margaret as his sole devisee and legatee. Doyle never had any children born to his marriage; however, he and Margaret adopted two children which survived him. As stated, at some time after Doyle’s death Margaret remarried and is now Mrs. Seitz.

On June 27, 1962, after Doyle’s death, Lena V. Baldridge republished the “Joint and Mutual Will” by execution of a codicil in which she designated her daughter, Defendant-Appellee Eloise Baldridge Stover, as successor executrix of her estate. Lena V. Baldridge died April 14,1971; whereupon the Joint and Mutual Will as well as the Codicil were probated as her Last Will and Testament. Defendant-Appellant Mrs. Sto-ver qualified as Independent Executrix of her mother’s estate and took possession of all the assets of J. H. and Lena V. Bal-dridge then remaining. At all times following her qualification as executrix of her mother’s estate, Mrs. Stover has claimed all the assets as her own and denied that Plaintiff-Appellee Mrs. Seitz had any interest in same. Mrs. Seitz claimed a one-half undivided interest in and to the assets left by Lena V. Baldridge at her death (remaining from the estates of J. H. and Lena V. Baldridge), through the will of her husband, Doyle M. Baldridge. Hence this lawsuit filed by Mrs. Seitz to establish a one-half interest in the assets left by Lena V. Bal-dridge.

Our task is to ascertain the intention of the testators from the language used by them in the will, and to give effect to same. McMurray v. Stanley (1887) 69 Tex. 227, 6 S.W. 412; Frame v. Whitaker (Tex.Com.App.1931) 120 Tex. 53, 36 S.W.2d 149, opinion adopted by the Supreme Court; Briggs v. Peebles (1945) 144 Tex. 47, 188 S.W.2d 147.

Let us consider and analyze the wording chosen by the testators in the will in question so as to ascertain and carry out their wishes expressed therein. At the outset, at the death of J. H. Baldridge, the will devised a fee simple estate upon his surviving widow, Lena V. Baldridge, because the will by its express terms provides: —“all of said property — to vest in fee simple in the survivor, — .” See Article 1291, Vernon’s Texas Civil Statutes.

Now, looking at the situation in retrospect, since Lena V. Baldridge survived J. H. Baldridge, and Doyle died without “bodily heirs” before his mother died, what kind of estate did Doyle receive at his father’s death? That is the critical question we are called upon to decide. We hold that at the death of J. H. Baldridge, Doyle received a vested remainderman’s interest, defeasible on a condition subsequent, to wit, his (Doyle’s) death before the death of his mother. Why defeasible?

Paraphrasing the will insofar as it applies to Doyle, and as it applies to the events as they actually transpired, we believe the will provided as follows: “Upon the death of Lena V. Baldridge, any of the estate thus remaining, shall go one-half to our son Doyle or to his bodily heirs.” As stated, Doyle had no children born to him, but had two adopted children who survived him. “Bodily heirs” does not include adopted children. Cutrer v. Cutrer (San Antonio, Tex.Civ.App.1960) 334 S.W.2d 599 at p. 606, affirmed by our Supreme Court in 162 Tex. 166, 345 S.W.2d 513, 86 A.L.R.2d 105.

In other words, as of the time of Lena V. Baldridge’s death, one-half of the property had been devised to “Doyle or his bodily heirs.” By devising the property in this manner, the testators by implication excluded anyone else. So when Lena V. Baldridge died, Doyle was already dead, and he had no bodily heirs to receive his one-half of the estate. Since Doyle was not alive to receive it, and he had no bodily heirs to receive it at Lena V. Baldridge’s death, Doyle’s remainder interest was defeated. See Jones v. Walter (Tex.1968) 436 S.W.2d 130; Power v. Landram (Tex.1970) 464 S.W.2d 99; First National Bank of Corsicana v. DeFoe (Waco, Tex.Civ.App.1964) 384 S.W.2d 926, writ refused; Amos v. Amos (Dallas, Tex.Civ.App.1949) 217 S.W.2d 902, NRE. Since Doyle’s remainder interest was defeated and lapsed at his death, he left nothing to devise by his will to his widow, Plaintiff-Appellee. Power v. Landram, supra.

Plaintiff-Appellee contends, and the trial court held, that by the will at J. H. Bal-dridge’s death, Lena V. Baldridge was devised a life estate in the property, and Doyle and Eloise each were vested with an indefeasible remainder interest in the property. They cite in support of this proposition Chadwick v. Bristow (1948) 146 Tex. 481, 208 S.W.2d 888; Murphy v. Slaton (1954) 154 Tex. 35, 273 S.W.2d 588; Nye v. Bradford (1946) 144 Tex. 618, 193 S.W.2d 165; Riedel v. Kerlick (Corpus Christi, Tex. Civ.App.1971) 474 S.W.2d 508, NRE; and Orsburn v. Miller (San Antonio, Tex.Civ. App.1975) 521 S.W.2d 140, no writ. Each of the foregoing cases relied upon by Plaintiff-Appellee is concerned with a joint and mutual will of a husband and wife wherein in each case the survivor was devised a life estate, with remainder interest (or interests) in each case being held indefeasible. In our opinion these cases are not applicable to the case at bar. Our Supreme Court, in Chadwick v. Bristow, supra, said:

“The further conclusion must follow that since Mrs. S. A. Chadwick (the surviving spouse) had only an estate for life in the property after she probated her husband’s will, the remainders were then vested in the designated remaindermen. It is well settled that a remainder is vested where there is a person in being who would have an immediate right to the possession upon the termination of the intermediate estate.” (emphasis supplied.)

In the ease at bar, Lena V. Baldridge, the surviving testator, was not the holder of “only a life estate” but after her husband’s death held the property in fee simple by the express terms of the will.

Moreover, in the cases cited by Appellee, the Court made clear that in each will involved, the testamentary intention was to vest indefeasible remainder interest (or interests). In the case at bar, to the contrary, we believe the testamentary intention was to create a defeasible or contingent remainder interest in Doyle M. Baldridge, for the reasons hereinabove stated.

Appellee asserts that the fact that the will of J. H. and Lena V. Baldridge is joint, mutual, and contractual that this is an argument in favor of holding Doyle’s remainder interest to be indefeasible. We do not agree. We recognize that the will is joint, mutual, and contractual; however, we fail to see how this fact would affect or change the testamentary intention expressed by the will.

For the reasons stated herein, we hold that at the death of J. H. Baldridge, son Doyle was vested with a remainderman’s undivided one-half interest in the property, if any, left by his mother at her death, which remainder interest was contingent upon his being alive at the time of his mother’s death; that since he (Doyle) died before his mother’s death, his remainder interest was defeated.

This being so, none of the property in question came into his estate to be devised by his will to his widow, Margaret, now Plaintiff-Appellee Mrs. Seitz. Therefore, we reverse the trial court’s judgment and render judgment that Plaintiff-Appellee Mrs. Margaret Seitz take nothing.

Reversed and rendered.

Attorneys for appellant, Roe and Ralston (David Ralston) Corsicana, Texas.

Attorneys for appellee, Wright & Gill (Larry Wright) Corsicana, Texas.


author: YOUNG, Justice.

text:
    A & A CONSTRUCTION COMPANY, INCORPORATED, Appellant, v. The CITY OF CORPUS CHRISTI, Texas, et al., Appellees.
    No. 993.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 18, 1975.

      Jack K. Dahlberg, Jr., Bonilla, Read, Nut-to, Beckman & Bonilla, Inc., Corpus Christi, for appellant.
    James F. McKibben, Jr., Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

Because the trial court refused to temporarily enjoin the City of Corpus Christi, and certain of its officials, from awarding a contract for,the construction of the Corpus Christi Health Center to any bidder other than the plaintiff, who was the low bidder, the plaintiff appeals.

On March 26, 1975, the City of Corpus Christi accepted and read bids on the proposed Corpus Christi Health Center. Appellant, A & A Construction Company, Incorporated, was one of the seven companies submitting bids for that project. Bids were to be submitted by 4:00 p. m. on March 26, 1975, in the office of the City Secretary.

Appellant’s representative, an employee of approximately two months, had arrived at the city hall a few minutes before the designated time and had gone to the City Secretary’s office, but he did not submit his bid there. He then went down to the first floor near the council chamber and began listening over a public address speaker in the hall to proceedings of a zoning case then being conducted by the council. He stated that the first he heard about bidding was, “I heard that the fellow that was reading the bids over the microphone said that we had received a bid from, I believe it was Bobby Braselton Construction Company.” He then rushed inside the council chamber and submitted appellant’s bid. By this time it was, according to appellant’s employee, “ . . .1 would say five after 4:00 would be the best of my knowledge. Possibly ten after, . . .”

At that time there was some discussion by city officials, but no formal protest, about the propriety of appellant’s filing. Nevertheless, the bid was given to the city engineer who was reading the bids aloud. After completion of the reading of the first bid, the engineer then opened and read aloud the appellant’s bid and thereafter opened and read all the other bids. After all the bids were opened and read, it was apparent that appellant’s bid was the lowest.

Whereupon a representative of the second lowest bidder protested the late tender of appellant’s bid. The city council then rejected appellant’s bid and accepted the engineer’s recommendation to take the next lowest bid.

On April 1, 1975, the appellant sought and was granted a temporary restraining order, ex parte, restraining the city from letting the contract to any other bidder. The next day the city sought by motion the dissolution of the temporary restraining order. After an evidentiary hearing on that day, April 2, 1975, the trial court ordered the restraining order dissolved. Later that same evening the city let the contract to. Lambert & Fondren, Inc., who was the next lowest bidder on the health center project.

On April 4, 1975, the trial court then conducted a hearing on the temporary injunction. The parties agreed that the evidence to be considered was that which was heard on April 2, 1975, together with additional stipulations of counsel. On that same date, April 4, 1975, the trial court entered its order denying the temporary injunction. The appellant appeals from that order.

The appellant brings forward one point of error. There he contends that the trial court erred by abusing its discretion in denying the temporary injunction against the city for the letting of the contract on the Corpus Christi Health Center. Under that single point the appellant says that the issues are: (1) whether the city can be enjoined from the letting of the contract; if so, (2) whether appellant showed a probable right which is probably endangered; and, (3) whether this appeal has been made moot by the city’s letting of the contract before the hearing on the temporary injunction.

The first rule governing our review of this case is set out in Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 462 (1952). There our Supreme Court said that a trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties preceding a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion.

First, we look at the issue of whether a trial court can enjoin the city’s letting of the contract. In that regard, the appellant recognizes the general rule that the courts will not interfere by injunction with the legislative functions of a city. City of Dallas v. Couchman, 249 S.W. 234 (Tex.Civ.App.-Dallas 1923, writ ref’d). The appellant, however, urges that our case falls within the exception to the general rule noted in Couchman. That is, when a void ordinance is passed (or void decision is made) by the city, then if an “exigency” arises therefrom because city action is impending that will injure the petitioner, then the authority of the court can be invoked to restrain the injury. The “exigency” here, appellant says, is the impending award of the contract to another bidder.

As we understand appellant’s argument about the exception, it is that the city waived the rejection of appellant’s late bid because the bid was opened and read along with the other bids; that the city thereby violated its regulation that a late bid should be returned sealed. We disagree that the city’s action was void. The only difference we can see in rejecting a late bid sealed at the beginning of the council’s bid opening procedure and rejecting it opened at the end is the number of people who know about the relative dollar standing of the appellant’s bid compared with those of the others. In the first instance, only the appellant knows. In the second instance, all present at the bid opening procedure know.

Next, we consider the issue of probable right of the appellant which is argued to be endangered. Appellant contends that he had a right to the health center contract because he was the lowest bidder. We again disagree. This contention might have merit but for a provision in Tex.Rev.Civ. Stat.Ann. art. 2368a, § 2 (1971). Under that statute the city “. . . shall have the right to reject any and all bids, . . ” So here the city by statute had the discretion to reject appellant’s bid and it did so. Consequently, the appellant has no right, probable or vested, to the award of the contract.

There is another reason why appellant had no right to the contract. It is basic contract law that a bid by one is simply an offer and is not binding until accepted by another. See 13 Tex.Jur.2d Contracts § 16 (1960). Appellant’s bid was just not accepted by the city and therefore the city was not required to award appellant the contract.

Finally, the appellant urges that this appeal is not moot even though the city has already let the contract on the health center to Lambert & Fondren, Inc. Because of the disposition we have made of appellant’s foregoing contentions, we do not. deem it necessary to resolve appellant’s “appeal is not moot” contention.

Because the appellant submitted a late bid which was rejected by the city, and because the city had the authority to so reject under statute, we hold that the trial court did not abuse its discretion when it denied appellant’s requested temporary injunction against the city.

The judgment of the trial court is affirmed.


author: McKAY, Justice.

text:
    Eugene VICKREY, Appellant, v. Mac SYMES, Appellee.
    No. 852.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 18, 1975.
    L. Royce Coleman, Jr., Coleman & Bal-dridge, Denton, for appellant.
    Jerry Bain, Tyner, Bain & Tyner, Tyler, for appellee.
   McKAY, Justice.

Appellant filed suit in forcible detainer against Appellee in Justice Court in Smith County, Texas, for possession of certain premises in Tyler; and, after a jury trial in that court, judgment was rendered for Ap-pellee. Appellant then appealed to the County Court at Law of Smith County where, after trial de novo before a jury, judgment was rendered that Appellee have possession of the premises in question.

Appellant brings several points of error in his appeal to this Court complaining that under the one special issue submitted to the jury the case became a trial of title to real property, that there was insufficient evidence to support the jury finding, that the court should have granted Appellant a money judgment for rent and that the special issue was a general charge.

We are met at the outset with the assertion by Appellee that this court has no jurisdiction to consider the appeal insofar as Appellant seeks relief from that portion of the judgment awarding possession of the property to Appellee. Appellee maintains that a forcible detainer suit is a special proceeding and is governed by special statutes, and that the right of possession was the only issue tried in the justice court and in the county court and that the judgment of the county court is final, and not appeal-able. We agree with Appellee’s contention.

It seems to be well settled that no appeal may be taken from a judgment of the county court in a forcible detainer suit, unless the judgment awards damages in excess of $100, and this court has no jurisdiction to consider such appeal on the question of possession. When damages are awarded in excess of $100, then only the damage portion of the appeal may be considered. Art. 3992, V.A.T.S.; Williamson v. Johnson, 492 S.W.2d 327 (Tex.Civ.App.— Tyler, 1973, n.w.h.); New Friendship Baptist Church v. Collins, 453 S.W.2d 529 (Tex.Civ.App.—Houston (14th Dist.), 1970, n.w. h.); Pizanie v. Citizens Investment Co., 448 S.W.2d 803 (Tex.Civ.App.—Houston (14th Dist.), 1969 writ ref’d).

We hold that this court does not have jurisdiction to consider the question of possession of the premises. Further, we hold that this court does not have jurisdiction to consider whether the trial court erred in submitting the special issue on the grounds that it constituted a general charge. The special issue concerned the question of possession and is not reviewable by this court. See authorities cited above.

Appellant sued for possession as well as damages for the rental value of the premises during what Appellant alleged was a hold-over period after Appellant was entitled to possession. In the justice court Appellant alleged the damage to be “at least $2,000,” while in the county court he alleged that Appellee had mailed to Appellant two cashier’s checks for $1,818 and $600, and Appellant tendered these checks into the registry of the court “to pay off and discharge any judgment entered in this cause for back rent.” The record reveals that Appellee continued to deposit into the court $600 for each month thereafter to the time of trial. In the county court judgment the sums of money paid into the registry of the court by Appellee were awarded to Appellant.

Appellant’s only point concerning his damage claim complains that the court erred in refusing to render judgment for him “for the fair rental value of the premises in the amount of $1,500 per month after July 18, 1974, to the date of the trial.”

The record reveals that no issue on damages was submitted to the jury and that Appellant did not request submission of a damage issue. Rule 279, T.R.C.P. provides that “Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment * 4 *The judgment of the county court awarded possession to Appellee and awarded to Appellant all sums of money paid into the registry of the court by Appellee. Therefore, it appears that Appellant could not recover any further damages because all independent grounds of recovery not conclusively established under the evidence and upon which no issue is given or requested is waived. Rule 279, T.R.C.P. There is no request in the record by Appellant that the trial court make any finding on damages. This point is overruled.

Appellant also asserts that the trial in the county court was a trial of title to real estate and was not within the jurisdiction of that court; and, therefore, that court’s judgment is void. We overrule this contention. The only issue submitted to the jury was on the question of possession. The question of possession is within the jurisdiction of the county court, and the judgment was not void. Rules 746 and 749, T.R.C.P.

The attempted appeal from the trial court’s judgment granting possession of the premises to Appellee is dismissed; in all other respects the judgment of the trial court is affirmed.

      . “Who do you find from a preponderance of the evidence to be entitled to the possession of the premises in question? Answer Mr. Mac Symes.”


author: RALEIGH BROWN, Justice.

text:
    Fred Z. MILLS, Jr., Appellant, v. BRANIFF AIRWAYS, INC., et al., Appellees.
    No. 4816.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 19, 1975.
    George M. McDonald, Kelso & Paternos-tro, Dallas, for appellant.
    William F. Carroll, Clark, West, Keller, Sanders & Butler, G. William Baab, Mulli-nax, Wells, Mauzy & Baab, Inc., Dallas, for appellees.
   RALEIGH BROWN, Justice.

Fred Z. Mills, Jr., sued Braniff Airways, Inc., and Airline Pilots Association International seeking increased retirement benefits from Braniff. Motions for summary judgment were granted defendants. Mills appeals. We affirm.

Mills was employed by Braniff as a pilot from April of 1942 until his retirement July 8,1971. He was a member of Airline Pilots Association, which was the duly elected and certified bargaining representative for Braniff pilots. In 1957, following collective bargaining negotiations, Braniff established a retirement plan for the benefit of its employees and Association’s members. By its terms Braniff agreed to match all contributions made by employees to the plan. Mills elected not to become a member of the plan at its inception.

By agreement dated May 18, 1965, Bran-iff and Association executed an amendment to the retirement plan which provided in part:

“ ‘Any Pilot who was in the employ of the Company on November 1, 1964, who was an active Participant in the Braniff Airways Retirement Plan for Pilots (the ‘Plan’) at any time before November 1, 1964 and who, in the event of hardship as determined and approved by the Retirement Committee under the provisions of Section 16 of the Plan, before November 1, 1964 discontinued his Active Participation under the provisions of sub-section 5.2 or withdrew from the Plan under the provisions of sub-section 5.3, shall, notwithstanding the restrictions of sub-sections 5.2 and 5.3 or other sections of the Plan, be given the opportunity to be reinstated in the Plan with all rights and benefits which he would have had thereunder had he never discontinued his Active Participation or withdrawn from the Plan, subject to the restrictions and conditions listed hereafter.’ ”

Mills was not a participant and had not been a participant in the retirement plan at the time. It was not until 1967 when, by amendment, all pilots were automatically enrolled in the retirement plan and were not, thereafter, required to make individual contributions that Mills became a participant.

After retirement Mills received benefits computed from his date of entry into the plan. Being dissatisfied with his benefits, Mills filed a claim for additional compensation with the Retirement Committee seeking the same benefits received by pilots who had contributed from the inception. After the Committee unanimously denied the claim, Mills instituted this cause contending he had been deprived of the opportunity to make contributions and increase his benefits under the plan following the May 13,1965 amendment. He alleged other pilots had received notification of the amendment and had been given the opportunity to re-enter the plan by making up contributions, thereby increasing their benefits, while he had not been afforded the same opportunity. Further, Mills contended the Association failed to properly and adequately advise, inform and represent him as a member of the Association.

Mills’ retirement benefits were the results of collective bargaining between Bran-iff and Mills’ representative, Airline Pilots Association. The plan provided in part:

Section 16.5A:

“A. There shall be a Retirement Committee. The Retirement Committee shall be composed of two members selected by the Company and two Participants selected by the Association on behalf of the Participants.”

Section 16.5B(2):

“All disputes arising out of the administration, application or interpretation of this Plan, or concerning benefits or participation of the Participants or Pilots in the Plan, shall be submitted to such Retirement Committee.”

Section 16.5G:

“The decision of the Retirement Committee shall be final and binding on the Company, the Participant and any other person having or claiming any interest under the Plan.”

Section 18.1:

“No Participant, retired Participant, contingent annuitant, or provisional payee shall have any right to retirement income benefits, except to the extent provided herein.”

The summary judgment proof establishes the Retirement Committee considered Mills’ claim and unanimously denied it.

The Court in United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960), stated:

“. . . The function of the court is very limited when' the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator.”

It is stated in Textile Workers Union of America, AFL-CIO, CLC v. Textile Paper Products, Inc., 405 F.2d 397 (5 Cir. 1968):

“. . . The award clearly indicates that it finds its source in the collective bargaining agreement. Having determined this, judicial inquiry should end, for when an award draws its essence from the collective bargaining agreement, ‘it is not open to a court to assay the legal correctness of the reasoning pursued.’ Safeway Stores v. American Bakery & Confectionary Workers International, 390 F.2d 79, 83 (5th Cir. 1968). See also United Steel Workers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 583, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Dallas Typographical Union, No. 173 v. A. H. Belo Corp., 372 F.2d 577 (5th Cir. 1967).”

The Court in Bruner v. Mercantile National Bank, 455 S.W.2d 323 (Tex.Civ.App.—Dallas 1970, ref. n. r. e.), considering a suit by an employee to recover disability benefits under a written retirement plan brought against the corporation, trustees of plan and members of retirement committee stated:

“No authority is cited, and we know of none, giving an employee an inherent right of appeal in such cases. This plan is a contract, binding alike on employer and employee, and it specifically abrogates any right of appeal. To seek the benefits accruing under the contract is to submit to the burdens thereof; the bitter must be accepted with the sweet.”

In Crockett v. Union Terminal Company, 342 S.W.2d 129 (Tex.Civ.App.—Dallas 1960, no writ), the court concluded:

“. . . We might agree with appellants if this suit were a local State matter. But the field of collective bargaining, especially with reference to railroads, has been pre-empted by Congress through the Railway Labor Act. 45 U.S. C.A. § 151 et seq. In State of California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1042, 1 L.Ed.2d 1034, the Supreme Court of the United States quotes from its opinion in Railway Employes’ Department v. Hanson, 1956, 351 U.S. 225, 232, 76 S.Ct. 714, 718, 100 L.Ed. 1112 as follows:
‘A union agreement made pursuant to the Railway Labor Act has, therefore, the imprimatur of the federal law upon it and, by force of the Supremacy Clause of Article VI of the Constitution, could not be made illegal nor vitiated by any provision of the laws of a State.’
See also Local 24 of International Brotherhood of Teamsters, etc. v. Oliver, 358 U.S. 283, 296, 79 S.Ct. 297, 305, 3 L.Ed.2d 312; Breeland v. Southern Pacific Co., 9 Cir., 231 F.2d 576 and Hooser v. Baltimore & O. R. Co., D.C. [Ind.], 177 F.Supp. 186.”

We hold that by the terms of the Retirement Plan and applicable federal law the decision of the Retirement Committee is final and binding.

Mills’ complaint as to Association’s failures with reference to its representation of him was based upon the negotiations which resulted in the amendment of May 13,1965. Association had a statutory “duty of fair representation”. Steele v. Louisville & Nashville RR. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903,17 L.Ed.2d 842 (1967). Mills filed this cause in 1973. We hold the pleadings and summary judgment proof conclusively establish that Mills’ claim against the Association is barred by either Article 5526 or Article 5527, V.A.C.S.

Appropriate summary judgment rules support the ruling of the trial court. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965), and Oram v. Great American Oil Company, 513 S.W.2d 533 (Tex.1974).

We have considered all points of error and overruled each.

The judgment is affirmed.


author: BREWSTER, Justice.

text:
    Clarence LAUDERDALE, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 17641.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 19, 1975.
    Rehearing Denied Oct. 17, 1975.

      Dushman, Greenspan, Kensel & Friedman, and Lowell E. Dushman, Fort Worth, for appellant.
    Street, Swift, Brockermeyer & Bell, and Kae L. Brockermeyer, Fort Worth, for ap-pellee.
   OPINION

BREWSTER, Justice.

This appeal is by the plaintiff, Clarence Lauderdale, from a take nothing judgment that was rendered against him at the conclusion of the jury trial of a Workmen’s Compensation suit that he had filed against the defendant, Insurance Company of North America.

When the jury answered “No” to the question inquiring whether plaintiff had proved by a preponderance of the evidence that he sustained an injury on the occasion in question, the trial court rendered the take nothing judgment.

We affirm.

In plaintiff’s first and second points of error he contends that the trial court erred in overruling his motion for mistrial and request for a new jury panel based on two grounds, namely, (1) that defense counsel had, during voir dire examination of the jury panel, informed the jury that the Industrial Accident Board had found that the plaintiff did not sustain a injury and that plaintiff was in this case appealing that unfavorable ruling of the Board, and (2) that during voir dire examination of the jury panel defense counsel had informed the jury of recent local newspaper articles regarding fraudulent Workmen’s Compensation claims and collusion of claimants and doctors.

We overrule both of those points.

The voir dire examination of the jury panel that is in those two points complained of was not reported by the court reporter so it does not appear in the statement of facts. In addition there are no bills of exception in the record, as provided for by Rule 372, T.R.C.P., to show this Court what defense counsel actually did say upon the occasion in question and the setting under which such remarks, if any, were actually made.

The statement of facts does show that some time after the voir dire examination was made, plaintiff’s counsel did dictate to the court reporter a motion to dismiss the jury panel on the two grounds referred to in his first and second points and in addition he stated that he objected to the action of defense counsel in making the statements complained of.

Contained in the statement of facts is also the statement of the trial court when he ruled on the objections and mistrial motion. The trial court denied the motion to discharge the jury panel, he sustained plaintiff’s objections, and he instructed the jury as follows:

“THE COURT: Ladies and Gentlemen, we are ready to put twelve of you in the jurybox, but first I’ll make a comment to you and instruct you on certain points with reference to the comments regarding the results of the hearing before the Industrial Accident Board.

“You are very seriously instructed not to consider that comment for any purpose. The Industrial Accident Board’s proceedings have nothing to do with the trial of the comp case. It’s trial de novo, or a new trial.

“It starts in the District Court once an appeal is made, therefore any results, whether it’s good, bad or indifferent, is not relevant or effective or affecting any trial in the District Court. This trial is just starting new from today. The decision is to be made by this Jury and no one else, based on the evidence heard in this courtroom.

“You are also requested and instructed to disregard any remarks about any publicity on comp claims. There is no evidence in the record, and so far as I know, will be none on any other comp claim except the one in this case.

“Do any of you feel you could not obey that instruction and cast that comment out of your mind?

“Thank you very much.”

In summary, no bill of exceptions and no part of the statement of facts before us purports to show whether or not defense counsel actually made the remarks complained of. The statement of facts does contain the motion for mistrial and the objections that were made by plaintiff’s counsel sometime after the voir dire examination was completed wherein that counsel stated that defense counsel did make objectionable statements, but his statement that the remarks were made are legally insufficient to make the record show what, if anything, was said. See Green v. Rudsenske, 320 S.W.2d 228 (San Antonio, Tex. Civ.App., 1959, no writ hist.).

The trial court in ruling on plaintiff’s motion for a mistrial and on his objections to the claimed remarks did instruct the jury not to consider comments made during voir dire examination regarding the results of the hearing before the Industrial Accident Board. He further instructed the jury to disregard any remarks about any publicity on compensation claims.

The court’s remarks would indicate that something had been said by someone regarding the matters the court referred to, but no part of the record before us shows that the actual remarks that were allegedly made by defense counsel that are here complained of, the environment and circumstances prevailing in the courtroom at the time, and whether or not such remarks had been invited or provoked by something that opposing counsel had said or done.

With the record in that state, plaintiff has failed to sustain his burden of presenting a record to us that affirmatively shows that the trial court committed reversible errors in the rulings complained of in plaintiff’s first two points. Fenton v. Wade, 303 S.W.2d 816 (Fort Worth, Tex.Civ.App., 1957, writ ref., n. r. e.). We cannot look at the record before us and tell from it what remarks, if any, defense counsel actually made, whether they were harmful, or whether they were invited or provoked by plaintiff’s counsel.

Applicable law is stated in 3-A Tex.Jur. 486, Appeal & Error, Sec. 391, as follows: “The . . . rulings of the trial court are presumptively correct, and generally the appellate court will only consider matters shown by the record. Therefore, to procure a reversal an appellant must bring up a record which affirmatively shows that an error was committed, and that it was of such a nature as was calculated to injure him.”

Even if it could be said that the matters complained of did show error, the statement of facts presented to us, showing only a part of the voir dire proceedings complained of, is insufficient to enable us to tell whether or not such error was a prejudicial or reversible one. Rinonos v. Livingston, 491 S.W.2d 940 (Eastland, Tex.Civ.App., 1973, writ ref., n. r. e.).

We also hold that because the-voir dire examination complained of is not contained in the statement of facts or in a bill of exceptions, the matters complained of in plaintiff’s first two points of error were not properly preserved for appellate review. Green v. Rudsenske, 320 S.W.2d 228 (San Antonio, Tex.Civ.App., 1959, no writ hist.).

There are other reasons why plaintiff’s first and second points of error do not reflect a reversible error. The extent of voir dire examination of a jury panel is largely in the trial court’s discretion, and its rulings will not be reviewed on appeal unless it clearly appears that its discretion has been abused. Fort Worth & D. C. Ry. Co. v. Kiel, 195 S.W.2d 405 (Fort Worth, Tex.Civ.App., 1946, writ ref., n. r. e.); Levermann v. Cartall, 393 S.W.2d 931 (San Antonio, Tex.Civ.App., 1965, writ ref., n. r. e.); and Travelers Insurance Co. v. Beisel, 382 S.W.2d 515 (Amarillo, Tex.Civ.App., 1964, no writ hist.). In the absence of a statement of facts or bill of exceptions reflecting all of that part of the voir dire proceedings complained of this Court is unable to tell from the record whether or not the trial court did abuse its discretion in the conduct of such proceedings.

The plaintiff in his third point of error argues that since defendant’s contention throughout the trial was that plaintiff had filed a fraudulent claim for gain against the compensation carrier, the court committed reversible error in refusing to allow plaintiff to rebut this contention by proving that he was also covered by an Aetna Group Insurance policy that provided substantial benefits for injuries which he might sustain off the job.

We overrule the point.

It was the, plaintiff’s contention during the trial that he sustained ah on the job injury on or about September 21, 1971, which produced disability for which he was entitled to recover Workmen’s Compensation insurance. The defendant proved that prior to filing this suit the plaintiff had presented a claim to Aetna Insurance Company seeking benefits under their group policy wherein he stated in writing that he had sustained the injury that caused his claimed disability on the night of September 20, 1971, off the job at his home while moving a deep freeze.

One of defendant’s contentions during the trial was that plaintiff’s claim of being injured on the job was a fraudulent one; that the injury that produced his disability was not sustained on the job but was in fact sustained at home one evening while moving a deep freeze and that he was therefore not entitled to recover Workmen’s Compensation insurance in this suit and that he was not telling the truth about being hurt on the job.

In order to rebut defendant’s contention that his claim against the carrier was a fraudulent one and that plaintiff was lying in testifying that he was hurt on the job, the plaintiff offered to prove that at the time he was moving the deep freeze at his home on the night of September 20, 1971, he was covered by an Aetna Group Insurance policy that afforded him substantial benefits for any total disability that resulted from injuries that he might have then sustained. This evidence was offered to support his contention that he was not lying about being hurt on the job and to show that there was no reason for him to falsely claim that he was hurt on the job, because he was entitled to recover almost as much-in benefits from Aetna if hurt off the job as he would be entitled to recover from the carrier if he prevailed in this case.

The parties stipulated in an instrument they called a bill of exception that plaintiff in September, 1971, was covered by the Aetna Insurance Company Group policy that paid benefits for temporary disability for off the job injuries of $78.00 for 26 weeks and that if he was totally and permanently disabled from such an injury he could receive a lump sum maximum of $15,-000.00 under the Aetna policy and that under the Workmen’s Compensation law he could receive a maximum of $19,649.00 for total disability.

The trial evidence showed the existence of the Aetna Insurance Company Group policy affording benefits to plaintiff for disability caused by off the job injuries. The bill of exception shows that the trial court refused to permit plaintiff to show that he could have gotten $15,000.00 in benefits for total disability from an off the job injury and $19,649.00 in Workmen’s Compensation insurance for total disability resulting from an on the job injury.

In discussing it we will assume that plaintiff has properly preserved this point. This is actually questionable. To say the least, the claimed bill is not in the usual form of a bill of exception drawn to preserve for review an error committed in connection with the exclusion of evidence.

We hold that the excluded evidence was admissible and that it was error to exclude it. Such evidence would prove circumstances that tended to rebut defendant’s contention and supporting evidence to the effect that plaintiff was lying when he testified that the injury that caused his disability was sustained on the job. If he could get $15,000.00 for total disability under the Aetna Insurance Group policy for total disability resulting from an off the job injury sustained at home, there would be much less reason for plaintiff to lie in claiming that he did not get hurt at home while moving the deep freeze, than there would be in the absence of that fact.

Persuasive of our holding is Salinas v. Casualty Insurance Company of California, 323 S.W.2d 600 (San Antonio, Tex.Civ.App., 1959, affirmed in 160 Tex. 445, 333 S.W.2d 109), which was a Workmen’s Compensation case. A doctor testified there that plaintiff was a malingerer and was exaggerating his injury. The Court held that it was proper under those circumstances for plaintiff to prove by three witnesses that the plaintiff had on occasions prior to the trial and after the claimed injury date complained in their presence of present pain. These were circumstances that tended to rebut the claim that plaintiff was faking.

We hold that the error in excluding this evidence did not amount to such a denial of plaintiff’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case. It is therefore not a reversible error. Rule 434, T.R.C.P.

We are required to and have reviewed the entire record in making this determination. Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953) and Wilson v. Texas Employers’ Insurance Association, 407 S.W.2d 804 (Eastland, Tex.Civ.App., 1966, writ ref., n. r. e.). Plaintiff’s contention during the trial was that a low back injury resulted in his being operated on and in his sustaining disability. His own testimony strongly indicates that he did not sustain an on the job low back injury on the occasion in question and it is undisputed that he even made a claim on another insurance policy wherein he there stated that he sustained the injury that caused his disability at home instead of on the job. The plaintiff tried to explain away the statement he made on that claim form given to Aetna, but the jury apparently did not believe the explanation. We are convinced that it is not probable that the exclusion of this evidence caused the rendition of an improper judgment.

In plaintiff’s fourth point of error he contends that the trial court erred in allowing defense counsel, over objection, to read during his jury argument from medical records of Dr. Maroney, which records had been excluded from the evidence.

We overrule this point because the record does not show that defense counsel read to the jury during his argument from Dr. Maroney’s medical records. Plaintiff’s counsel stated to the court that defense counsel was reading to the jury from such record, and the defense counsel denied to the court that he was reading to the jury from that record. This is all the record shows to us about the matter complained of. The statement of plaintiff’s counsel, standing alone, is legally insufficient to make the record show that defense counsel was in fact reading to the jury from Dr. Maroney’s record. Green v. Rudsenske, 320 S.W.2d 228 (San Antonio, Tex.Civ.App., 1959, no writ hist.).

In his fifth point of error plaintiff contends that the trial court committed reversible error in permitting defense counsel, over objection, to argue to the jury that plaintiff “tells Dr. Maroney he had injured his right shoulder moving a deepfreeze.” Plaintiff claims there was no evidence to support such an inference and that such an inference from the evidence was neither reasonable nor legitimate.

We overrule the point.

From our review of the record we are convinced that there was no evidence in the case to the effect plaintiff told a Dr. Maroney that he had injured his shoulder moving a deep freeze. There is no evidence in the record from which it can reasonably be inferred that he told Dr. Maroney that. The argument was therefore improper. Sims v. Travelers Insurance Company, 391 S.W.2d 807 (Fort Worth, Tex.Civ.App., 1965, writ ref., n. r. e.).

We hold that this error did not amount to such a denial of plaintiff’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. It is not a reversible error. Rule 434, T.R.C.P.

Plaintiff’s contention throughout the trial had been that he sustained an on the job injury to his low back on September 21, 1971, which resulted in his having a lami-nectomy and the disability here complained of. His deposition testimony was offered into evidence. He was there asked (inquiring about his fall at his employer’s place of business on September 21, 1971) “What parts of your body were injured?” He answered: “It was the upper back and neck, sir.” He also testified that when he went to see Dr. Brooks following this fall at work this doctor x-rayed the area between his shoulders and that to his knowledge he did not on September 21, 1971, injure his low back. He testified that Dr. Brooks gave him therapy to his neck and' upper back following the injury and gave him no therapy to his low back until December, 1971, after he was involved in a car wreck. He also testified that on September 21,1971, he went to see the nurse at his employer’s plant following his fall on the job and that she then gave him heat treatments in the area between the shoulders (neck and upper back).

We have examined the entire record and hold that the matter in plaintiff’s fifth point complained of was not a prejudicial error.

In plaintiff’s sixth and seventh points of error he contends that the cumulative effect of two or more of the errors that he claims were committed was prejudicial to plaintiff and was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

From our review of the entire record we are convinced that no two or more errors were committed during the trial the cumulative effect of which was to probably cause the rendition of an improper judgment.

The judgment is affirmed.