text:
    Michael RUTHERFORD et al., Appellants, v. Joe J. JONES, Appellee.
    No. 2908.
    Court of Civil Appeals of Texas, Tyler.
    June 21, 1979.
    Rehearing Denied Aug. 16, 1979.

      Carnegie H. Mims, Jr., Houston, for appellants.
    Frank L. Supercinski, Longview, for ap-pellee.
   PER CURIAM.

After the 60-day period for filing the record had expired appellants filed their Amended Motion for Extension of Time to File Statement of Facts and Transcript in this cause under the provisions of Rule 21c, Tex.R.Civ.P. The trial court entered its final judgment on March 23, 1979. Pursuant to Rule 386, Tex.R.Civ.P., the last day for filing the Transcript and Statement of Facts was May 22, 1979. Although appellants timely filed their cost bond for appeal, the Transcript and appellants’ Motion for an Extension of Time were received by this Court on June 5, 1979, 14 days after the 60-day period had expired.

Rule 21c provides, “An extension of time may be granted for late filing in a Court of Civil Appeals of a transcript, statement of facts, . . . if a motion reasonably explaining the needs therefor is filed within fifteen (15) days of the last date for filing as prescribed by the applicable rule or rules.” The Transcript and the Motion for an Extension of Time were received by this Court within the 15-day period specified in Rule 21c.

In their Motion appellants’ counsel acknowledges that he received the judgment from appellee’s counsel on March 29, 1979. Appellants’ counsel states that, “Upon receipt of said judgment from opposing counsel, Appellants were notified by their counsel of the entry of judgment, their right to appeal, and the timetable for appeal, if they wanted to appeal.” The reason that appellants’ counsel gives for the appellants having failed to respond in time to perfect the filing of the Statement of Facts and Transcript within the 60-day period is that appellants had set up temporary residence near the hospital in Houston where their father and uncle was confined with terminal cancer. Appellants’ counsel further states that after the demise of their father and uncle on April 29, 1979, they returned to their home in Hawkins, Texas, and discovered counsel’s letter. On May 24, 1979, two days after the 60-day period for filing the record had expired, appellants notified counsel by telephone that they wished to appeal the case. This is the entire statement given by appellants as their “reasonable explanation” as to why they should be permitted an extension of time pursuant to Rule 21c.

Although appellants’ counsel signs and swears that “the matters stated in this motion are within his knowledge and are true and correct,” it is not clear whether appellants were notified of the rendition in some manner before counsel notified them by mail. If appellants had notice of the judgment before taking up a temporary residence in Houston, there is no reasonable explanation for their failure to secure the Transcript and Statement of Facts within the 60-day period allowed by the rule. Moreover counsel’s affidavit states that appellants received his letter when that returned home after their relative passed away in Houston on April 29, 1979. Counsel’s affidavit does not state any reason why appellants waited from that date until May 24,1979, before taking any action with regard to the appeal.

There are no sworn affidavits or other evidence from any of the four appellants regarding their whereabouts or lack of knowledge of the judgment either prior to the April 29th death of their relative or between April 29th and May 24th when they finally notified their counsel to appeal the case. Neither appellants nor their counsel give any explanation at all as to why they could not have commenced perfecting their appeal during the period from April 29 until their time expired on May 22nd.

The term “reasonably explaining” as used in 21c, supra, means any plausible statement of circumstances indicating that the failure to file within the 60-day period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance. Meshwert v. Meshwert, 549 S.W.2d 383 (Tex.1977), Shepard v. Shepard, 572 S.W.2d 86 (Tex.Civ.App. — Houston 1978, writ ref’d n. r. e.). Appellants have an obligation by the rules to promptly request the record or reasonably explain their failure to do so. Taft v. Wolma, 541 S.W.2d 673 (Tex.Civ.App. — San Antonio 1976, no writ). As we view the record the motion filed in this case fails to contain a reasonable explanation as to why the Transcript and Statement of Facts could not have been filed within the time required by law and therefore Rule 21c may not be used as a vehicle to further extend the time for the filing of the record.

Appellee has filed a motion that this appeal be dismissed. In view of our ruling that appellants are not entitled to relief under Rule 21c, the appellee’s Motion to Dismiss is granted.

Accordingly, the appeal is dismissed.


source: Caselaw Access Project

author: SUMMERS, Chief Justice.

license: Public Domain

text:
    Kenneth ADAMS, Appellant, v. Carl M. MORRIS et al., Appellees.
    No. 1198.
    Court of Civil Appeals of Texas, Tyler.
    June 28, 1979.

      David E. Leuders, Houston, for appellant.
    David O. Cluck, Larry D. Thompson, Lorance, Thompson & Wittig, Edward Murr, Michael P. Graham, Baker & Botts, Houston, for appellees.
   SUMMERS, Chief Justice.

This is a case in which recovery is sought for personal injuries resulting from an automobile-pedestrian collision.

In the early evening of November 25, 1974, at approximately 7:00 p. m., John Gonsoulin and Kenneth Adams, both age 17, were riding in an automobile owned by the Adams family. The two boys, both employed by a nearby hospital, went for the drive in order to smoke a marijuana cigarette during their work break. After Adams had driven but a block or two from the hospital, he switched places with Gonsoulin so that he could eat a box of chicken and drink a coke which he had purchased earlier. Gonsoulin had briefly driven the Adams vehicle, a 1973 Volkswagen, on only one other occasion in a parking lot; therefore Adams reviewed the gears with Gonsoulin. The two boys then proceeded to drive through a residential area with Gonsoulin operating the automobile and Adams in the right front seat. The posted speed limit was 20 miles per hour, and street signs warned drivers of children playing in the neighborhood.

As Adams and Gonsoulin drove through the residential area, Adams spilled his coke between his legs and onto the seat. With the box of chicken in one hand and the coke in the other, Adams stood up and directed Gonsoulin to grab a napkin and wipe off the seat. As they attempted to clean up the spill, neither Gonsoulin nor Adams was paying any attention to their direction of travel. It is undisputed that Adams did not request Gonsoulin to stop the vehicle or reduce its speed. The vehicle drifted to the left, crossed the street, jumped the curb, and struck Scott and Sheri Morris as they played in their yard. The automobile struck the curb with sufficient force to blow a tire and travel another 108 feet before coming to a stop. Scott, age 9, and Sheri, age 10, sustained serious injuries.

Scott and Sheri Morris brought suit through their next friend, Carl M. Morris, their father who also sued individually, against Gonsoulin and Adams alleging that each defendant was guilty of negligence and that their negligent acts and omissions were the proximate causes of plaintiffs’ injuries. After suit had been filed, Gonsoulin entered into a compromise settlement agreement with plaintiffs. In accordance with the terms of such settlement, the trial court, on May 18, 1976, severed plaintiffs’ cause of action against Gonsoulin from the cause of action against Adams and rendered judgment in favor of plaintiffs against Gonsoulin in the amount of $350,000.00. The plaintiffs have continued to prosecute their cause of action against Adams. Subsequently, Adams filed a third-party action against Gonsoulin seeking indemnity and/or contribution, and the case proceeded to trial in this posture.

In response to the special issues submitted, the jury found both Gonsoulin and Adams to have been guilty of negligence. The jury found that Gonsoulin failed to keep such a lookout as would have been kept by a person using ordinary care, was driving at a greater rate of speed than a person using ordinary care would have driven, and failed to make such application of the brakes as would have been made by a person using ordinary care. The jury also found that such acts and omissions were a proximate cause of the occurrence in question. (Special Issues Nos. 1-6) In addition, the jury found that Adams diverted the attention of the driver from the road, instructed the driver to assist in cleaning the spilled drink while the driver was operating the vehicle, failed to request the driver to stop the car while the spilled drink was being cleaned up, and failed to request the driver to reduce the speed of the vehicle. (Special Issue No. 7) Such acts and omissions on the part of Adams were found by the jury to have constituted negligence which was a proximate cause of the occurrence in question. (Special Issues Nos. 8 and 9) The jury also found that after Adams had diverted the driver’s attention from the road, Adams failed to keep such a lookout as would have been kept by a person using ordinary care in the same or similar circumstances and that such failure was a proximate cause of the occurrence in question. (Special Issues Nos. 10 and 11) Finally, the jury determined that 60% of the negligence was attributable to Gonsou-lin and 40% of the negligence was attributable to Adams. (Special Issue No. 12) The jury refused to find that on the occasion in question, Gonsoulin was driving the vehicle under the influence of marijuana. (Special Issue No. 14)

The total damages found by the jury in regards to the injuries sustained by Scott Morris were $2,290,000.00. The elements of damage which could be considered by the jury were physical pain and mental anguish, physical impairment, and reasonable compensation for the necessary medical expenses, hospital care, nursing services, medicine, and physician fees. These elements included both those required or suffered in the past and those which in reasonable probability will be required or suffered in the future. In addition, the jury could consider Scott Morris’ loss of earning capacity which in reasonable probability will be suffered in the future after reaching age 18. In regards to the injuries sustained by Sheri Morris, the jury found damages totaling $165,000.00. The elements of damage which could be considered by the jury were physical pain and mental anguish suffered in the past and which, in reasonable probability, will be suffered in the future and disfigurement. In addition, the jury could consider reasonable compensation for necessary medical expenses, hospital care, nursing services, medicine, and physician fees which may have been required in the past or which will, in reasonable probability, be required in the future.

Upon motion by plaintiffs, the trial court reduced the total damages assessed by the jury from $2,455,000.00 to $2,370,400.00. The trial court then rendered judgment that plaintiffs recover $948,160.00 from Adams (40% of $2,370,400.00). From this adverse judgment Adams, appellant, has perfected this appeal predicated upon twenty points of error.

The primary question raised by appellant on appeal is whether appellant, a passenger in the vehicle at the time of the accident here in question, breached any duty owed by him to plaintiffs. Appellant contends that he had no duty to request the driver to stop the car or slow down while the spilled drink was being cleaned up, had no duty to keep a proper lookout, and breached no duty by asking the driver for a napkin. Under the facts of this case, appellant argues that the trial court erred in placing a duty for the safe operation of the automobile upon appellant. We disagree.

The duty of a passenger in an automobile is measured by the same standard of care as that of the driver; the test applied is reasonable care, the care a reasonably prudent person would exercise under like circumstances. However, the conduct required of a passenger to satisfy that duty may be quite different from that required of the driver. Edmiston v. Texas & New Orleans Railroad Company, 135 Tex. 67, 138 S.W.2d 526, 529 (Tex.Com.App.1940, opinion adopted); Galvan v. Sisk, 526 S.W.2d 717, 719 (Tex.Civ.App. — Amarillo 1975, n. w. h.).

The general rule regarding a passenger’s duty to keep a proper lookout is stated in Dudley v. Whatley, 400 S.W.2d 773, 775 (Tex.Civ.App. — Houston 1966, ref’d n. r. e.):

“Ordinarily a passenger, not being in charge of the operation of the automobile, is not required constantly to keep a lookout. He may rely on the driver to keep watch unless he knows from past experience or from the manner in which the car is being driven on the particular trip, that the driver is likely to be inattentive or careless.” (Emphasis added.)

See also Edmiston v. Texas & New Orleans Railroad Company, supra, 138 S.W.2d at 530; Atchison, Topeka & Santa Fe Railway Company v. Sheppard, 447 S.W.2d 216, 219 (Tex.Civ.App. — Eastland 1969, n. w. h.); Edmondson v. Keller, 376 S.W.2d 5, 7 (Tex. Civ.App. — Austin 1964, ref’d n. r. e.).

A passenger must protest the driver’s excessive speed when the speed is such that a reasonable man would realize its excessive character. Edmiston v. Texas & New Orleans Railroad Company, supra; Atchison, Topeka & Santa Fe Railway Company v. Sheppard, supra; Brister v. Lasiter, 444 S.W.2d 331, 337-8 (Tex.Civ.App. — El Paso 1969, ref’d n. r. e.). A passenger may not abandon the exercise of his own faculties and rely solely upon the driver when the passenger knows the vehicle is being driven in a reckless or careless manner. Texas Mexican Railway Company v. Hoy, 24 S.W.2d 18, 20 (Tex.Com.App.1930, jdgmt. adopted).

Whether or not a legal duty exists under a given state of facts and circumstances is essentially a question of law for the court. Webb v. City of Lubbock, 380 S.W.2d 135, 136 (Tex.Civ.App. — Amarillo 1964, ref’d n. r. e.). It is undisputed that appellant retained the authority to direct and supervise the manner in which the Adams’ vehicle was operated, an authority recognized by both appellant, the passenger, and Gonsoulin, the driver. Gonsoulin was driving an unfamiliar vehicle and required a review of the gears from appellant prior to starting out. The street signs posted at the entrance to the residential area warned that children played in the area. Appellant diverted the driver’s attention from the road by requesting him to clean up the seat while appellant attempted to stand up in the car. It is undisputed that while the driver’s attention was so diverted, appellant failed to keep a lookout and failed to request the driver to slow down or stop. Under such a state of facts and circumstances, the trial court correctly concluded that appellant owed a duty to those situated as were the plaintiffs.

Whether or not a passenger’s conduct, as measured by the standard of ordinary care, constituted negligence is a question of fact for the jury. Langham v. Talbott, 211 S.W.2d 987, 990 (Tex.Civ.App.— Dallas 1948, ref’d n. r. e.). It is not a question of shifting responsibility for the operation of the vehicle from the driver to the passenger, as characterized by appellant, but a question of whether appellant exercised such care as would be exercised by a reasonably prudent person in like circumstances. The trial court quite properly submitted the issues inquiring of the jury whether appellant breached his duty to plaintiffs.

Appellant’s points of error nos. 1, 2, 3, 4, 5, 6, 14, 15 and 16 are hereby overruled.

Appellant’s seventeenth point of error contends that the trial court erred in admitting into evidence the opinion of Officer Preckwinkle regarding the speed of the vehicle in question because the witness was not qualified to give such testimony. Officer Preckwinkle, a state trooper with the Texas Department of Public Safety since 1967, testified that although he was unable to make a definite determination of the vehicle’s exact speed, it was his opinion that the Volkswagen was traveling in excess of twenty miles per hour at the time the occupants lost control of it. Appellant argues that this is the only evidence of excessive speed and that its erroneous admission was therefore reversible error. We disagree.

Officer Preckwinkle was at the scene of the accident within thirty minutes of its occurrence in order to make an investigation. His investigation included interviewing the occupants of the Volkswagen as well as observing the physical evidence. In addition to formal training in accident investigation, the witness investigated an average of between 500-800 accidents per year. In conjunction with this education and experience, Officer Preckwinkle based his opinion on the point at which the vehicle began to drift to the left, the result of the vehicle’s impact with the curb, the weight of the car, and the distance the vehicle traveled before coming to a stop. It is within the trial court’s discretion to determine whether a particular witness is qualified to testify as an expert, and the trial court’s decision will not be disturbed on appeal unless a clear abuse of discretion is shown. Moore v. Grantham, 580 S.W.2d 142, 147 (Tex.Civ.App. — Tyler 1979, application for writ pndg.); Texas Sanitation Company, Inc. v. Marek, 381 S.W.2d 710, 716 (Tex.Civ.App. — Corpus Christi 1964, n. w. h.). We do not believe the trial court abused its discretion in the instant case.

In the event the trial court did erroneously admit Officer Preckwinkle’s opinion, we believe it was harmless error. Rule 434, T.R.C.P. Appellant bases his position upon the false premise which equates the maximum posted speed limit with reasonable speed. The issue submitted to the jury was not one of statutory speed limit violation, but one of common law negligence, was the vehicle’s speed excessive under the circumstances. Speed may be excessive even though it does not exceed the posted speed limit. Although a motorist may not be exceeding the speed limit, he remains under a duty to drive no faster than a reasonably prudent person under like circumstances. Fitzgerald v. Russ Mitchell Constructors, Inc., 423 S.W.2d 189, 191 (Tex.Civ.App. — Houston [14th] 1968, ref’d n. r. e.); Billingsley v. Southern Pacific Company, 400 S.W.2d 789, 794 (Tex.Civ.App. — Tyler 1966, ref’d n. r. e.); Seay v. Kana, 346 S.W.2d 384, 386 (Tex.Civ.App. — Houston 1961, n. w. h.).

The record discloses that both Gon-soulin and Adams testified that they were going twenty miles per hour and that neither was keeping a proper lookout. It was dusk, and both occupants of the vehicle knew that children were at play in the area. The driver was unfamiliar with the car. Gonsoulin testified that he was driving in fourth gear, the highest, at the time of the accident. The plaintiffs were playing within about twenty feet of the curb, but the vehicle traveled approximately 108 feet before coming to a stop. The car hit the curb with sufficient force to blow out one of the tires. We therefore conclude that other evidence existed in the record from which the jury could have concluded that, under the circumstances, the vehicle was being driven at an excessive rate of speed. Officer Preckwinkle’s testimony was merely cumulative and corroborative of other evidence and, even if his opinion was inadmissible, it would at most be deemed harmless error. Adams v. Smith, 479 S.W.2d 390, 395 (Tex.Civ.App. — Amarillo 1972, n. w. h.); Brister v. Lasiter, supra, 444 S.W.2d at 338.

Appellant’s seventeenth point of error is overruled.

Appellant next contends that the trial court erred in overruling appellant’s motion in limine regarding the possession of marijuana by Gonsoulin and Adams. Appellant admits in his brief that no objection was made during the trial when the marijuana possession was raised. Appellees argue that appellant has failed to preserve the error, if any, and we agree.

The overruling of a motion in li-mine may be error, but it is never reversible error. Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331, 335 (Tex.Sup.1963). Before the trial court’s action in overruling a motion in limine could constitute reversible error, it must be shown that (1) the matter sought to be suppressed actually arose during the trial, and (2) the party, having originally urged the motion in limine, made a timely objection in the trial. Hartford Accident and Indemnity Company v. McCardell, supra; Farias v. Texas General Indemnity, 565 S.W.2d 117, 119 (Tex.Civ.App. — Corpus Christi 1978, n. w. h.); St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477, 480 (Tex.Civ.App. — San Antonio 1964, ref’d n. r. e.). Appellant’s eighteenth point of error is hereby overruled.

Appellant’s nineteenth point of error argues that the trial court erred in permitting plaintiffs to file a trial amendment increasing the damages prayed for by plaintiffs from approximately $3,000,000.00 to about $5,000,000.00. It is well settled that the allowance of trial amendments is within the sound discretion of the trial court, and unless it is clearly shown that such discretion has been abused, its order granting or refusing a trial amendment will not be disturbed. State of Texas v. Beever Farms, Inc., 549 S.W.2d 223, 225 (Tex.Civ.App. — San Antonio 1977, ref’d n. r. e.); Missouri-Kansas-Texas Railroad Company v. Gage, 438 S.W.2d 879, 883 (Tex.Civ.App.—Fort Worth 1969, ref’d n. r. e.). We do not feel the record reflects an abuse of discretion on the part of the trial court. Moreover, the jury’s verdict only awarded damages in the amount of $2,455,000.00; therefore we cannot see how appellant could have suffered any harm as a result of the trial amendment. City of Waco v. Texas Coffin Company, 472 S.W.2d 800, 804 (Tex.Civ.App. — Waco 1971, ref’d n. r. e.). Appellant’s point of error no. 19 is overruled.

Appellant asserts a number of points of error raising legal and factual sufficiency attacks against Special Issues Nos. 3, 7, 8, 9, 10, and 11. Special Issue No. 3 inquired of the jury whether on the occasion in question Gonsoulin was driving at a greater rate of speed than a person using ordinary care would have driven, to which the jury replied in the affirmative. In special issues 7, 8, and 9, the jury found that appellant diverted the driver’s attention, instructed the driver to assist in cleaning up the drink, failed to request the driver to stop the vehicle while the spill was cleaned, and failed to request the driver to reduce his speed; that such acts and omissions constituted negligence on the part of appellant; and that such negligence was a proximate cause of the occurrence in question. Finally, in special issues nos. 10 and 11, the jury answered that appellant, after diverting the driver’s attention, failed to keep such a lookout as a person using ordinary care would have kept under the same or similar circumstances, and that such failure was a proximate cause of the occurrence in question.

In determining a “no evidence” point, which is a question of law, we may consider only that evidence, if any, and the reasonable inferences therefrom, which viewed in its most favorable light, supports the jury finding and we must reject all evidence and inferences which are contrary to the finding. Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359, 363 (1957); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914). We have reviewed the record in the instant case and find that there is evidence of probative force to support the jury’s verdict, and appellant’s points of error nos. 7, 8, 9, 10, and 12 are overruled.

In determining a factual sufficiency point, we must consider and weigh all the evidence to determine whether the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust and the finding therefore be set aside and the cause remanded for a new trial. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.Sup.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). We have examined the entire statement of facts and reviewed it in light of the rule announced by the Supreme Court in the foregoing authorities. We deem the evidence sufficient to support the jury’s answers to the special issues in question and conclude that the jury’s findings were not so contrary to the great weight and preponderance of the evidence as to be manifestly wrong or unjust. Appellant’s points of error nos. 11 and 13 are hereby overruled.

By his final point of error, appellant asserts that the trial court erred in including the element of disfigurement in the damage issue with regards to Sheri Morris because there was no pleading to support the submission of such element of damage. Plaintiffs’ petition with regards to the injuries suffered by Sheri Morris alleged:

“When the Defendant and his driver struck SHERI MORRIS, she was severely injured. She sustained a compound fracture of the right thigh, three fractures in her pelvis, a fracture of the right upper arm, a fracture of the left upper arm, and a fracture of the left clavical. She was confined to a hospital bed, shrouded in casts for a month and a half and thereafter was in a hospital bed at home in a body cast for several months. When all of the casts were finally removed, she had a shortening of the right leg. In addition to the substantial pain and suffering the young girl has already experienced, she now faces an uncertain future with additional surgery a distinct probability.”

No special exceptions were directed by appellant towards plaintiffs’ pleading.

In the absence of any special exception, the petition will be liberally construed in the pleader’s favor and to support the judgment. Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, 515 (Tex.Com.App.1941, opinion adopted); Aetna Casualty and Surety Company v. Clark, 427 S.W.2d 649, 656 (Tex.Civ.App. — Dallas 1968, n. w. h.). It is not essential to the recovery of damages that the measure of damages be alleged in the petition. All that is necessary is that the petition sufficiently allege facts establishing a cause of action from which the court can ascertain the proper measure of damages. The measure of damages is a matter of law for the court. Aetna Casualty and Surety Company v. Clark, supra; 17 Tex.Jur.2d Damages, section 197, p. 263. We believe plaintiffs’ petition in the instant case, although not using the specific term “disfigurement,” sufficiently alleged the facts which resulted in her disfigurement. Appellant’s twentieth point of error is overruled.

Appellee Gonsoulin presents a single cross point of error which contends that the trial court erred in failing to dismiss Adams’ third-party action because Gonsoulin, third-party defendant, is not a necessary or proper party to this case or appeal. Appellee Gonsoulin argues that under section 2(e) of Article 2212a, Tex.Rev.Civ.Stat.Ann., he has been released of all further liability to any party on account of the accident which is the basis of the lawsuit. Therefore argues Gonsoulin, having no interest or stake in the outcome of this litigation, he should be dismissed and not required to participate any further.

The procedural uncertainties under section 2, Article 2212a, supra, have been the subject of recent discussion. See Deal v. Madison, 576 S.W.2d 409 (Tex.Civ.App.— Dallas 1978, application for writ pndg.); Keeton, Annual Survey of Texas Law: Torts, 28 S.L.J. 1, 14 (1974). However, whether a determination of the alleged settling tortfeasor’s negligence is possible where he is not made a party to the suit is not the question before us. In the instant case, the non-settling defendant filed a third-party action against the alleged settling tortfeasor as contemplated by section 2(e), Article 2212a, supra. We conclude that Adams, the non-settling defendant, could properly assert a third-party action against Gonsoulin and thereby be assured of the applicability of section 2(e), Article 2212a, supra. Appellee Gonsoulin’s cross point of error is overruled.

We have considered all of appellant’s points of error and appellee’s cross point of error, and the same are hereby overruled. The judgment of the trial court is affirmed.


author: McKAY, Justice.

text:
    Iona Kennedy LILLEY, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellee.
    No. 1220.
    Court of Civil Appeals of Texas, Tyler.
    June 28, 1979.

      Terry M. Thorn, Melvin Whitaker, Pax-ton, Whitaker & Parsons, Palestine, for appellant.
    Harman Parrott, Claude R. Treece, Se-well, Junell & Riggs, Houston, John B. McDonald, McDonald, Calhoon & Kolstad, Palestine, for appellee.
   McKAY, Justice.

This is an action for wrongful death resulting from a railroad crossing accident.

A pickup truck in which Bobby Joe Kennedy and Louis Chalk were riding was struck at a grade crossing by one of the trains of appellee, Southern Pacific Transportation Company, killing Kennedy and injuring Chalk. The accident occurred in the afternoon of August 7, 1973, a short distance West of Frankston. Kennedy’s widow (Mrs. Lilley, appellant) and Chalk brought suit, alleging that the crossing was extraordinarily hazardous in that the view of persons crossing the track was obstructed by an embankment and high weeds, and further alleging that the railroad was negligent in failing to employ extraordinary means to signal the approach of its trains; further, allegations were made that the engineer failed to sound the whistle and the bell, and the railroad failed to install cross-bucks at the crossing, these failures allegedly constituting negligence. All of the acts or omissions allegedly constituting negligence were said to also constitute gross negligence. Mrs. Lilley claimed actual damages for herself and her son in the amount of $426,585.80 and exemplary damages of $400,000.00. Chalk apparently settled his cause of action and withdrew as a party plaintiff.

The railroad’s answer was comprised of special exceptions not material here, a general denial, and special denials to the effect that the accident was solely or proximately caused by Kennedy’s negligence. Southern Pacific also alleged sudden emergency, new and intervening cause, and unavoidable accident.

The case was tried before a jury which found, in answer to 47 special issues, that the crossing was extrahazardous and that the railroad should have known that it was. Negligence on the part of the railroad was found in the following respects: failure to provide a flagman to precede trains at the crossing, failure to have an automatic signal at the crossing, and failure to have an automatic crossing gate there; each of these and the failure to have crossbucks at the crossing were found to be proximate causes of the accident and to constitute heedless and reckless disregard of the rights of others. It was further found that the engineer failed to sound the whistle or ring the bell continuously from a distance of one-quarter mile from the crossing, and that these failures were proximate causes of the accident. Furthermore, Kennedy was found to have been negligent in failing to keep a proper lookout and this was found to be a proximate cause of the accident. It was also found that he stopped the pickup truck on the railroad tracks, but this was not found to be negligence. The jury failed to find that the train was plainly visible before the truck was within fifteen feet of the tracks. Actual damages sustained by Mrs. Lilley were placed at $44,000.00 and exemplary damages at $60,000.00.

The judgment of the trial court was that Mrs. Lilley recover nothing. The accident giving rise to the cause of action occurred prior to the enactment of the comparative negligence statute, Art. 2212a, V.T.C.S.; thus, the findings by the jury that Kennedy was negligent and that such negligence was a proximate cause of the accident evoked the common law bar of contributory negligence. -

Appellant brings four points of error to this court, all related to the jury’s findings that Kennedy was guilty of contributory negligence in failing to keep a proper lookout and that such was a proximate cause of the occurrence in question. Points one and three assert error in entering judgment upon and in failing to set aside the improper lookout and proximate cause findings because they were supported by factually insufficient evidence, the only evidence in support thereof being photographs not shown to be material to this case. Points two and four state that the trial court erred in entering judgment upon and in failing to set aside the improper lookout and proximate cause findings because they were against the great weight and overwhelming preponderance of the credible evidence.

Kennedy was driving the pickup truck with Chalk as a passenger at the time of the accident. They had turned south off U.S. Highway 175 onto a dirt road leading across appellee’s track to a pasture and an oil well which Kennedy was engaged in servicing. Apparently, Kennedy had mechanical trouble with his truck, had gone to ask Chalk for help (Chalk was working in the service department of an automobile dealer), and was returning with Chalk in a pickup truck owned by the automobile dealer. Approximately 245 feet south of the highway the dirt and gravel road crossed the railroad track. A few feet north and west of the crossing, i. e., to the right of one approaching the crossing on the road going south, there was an embankment of uneven height, reaching a highest point of some twelve feet above the level of the road, with some growth of grass, weeds and trees on it.

As Kennedy and Chalk in the pickup truck proceeded south on the dirt and gravel road, appellee’s train approached the crossing from the west. Driving at a slow speed, Kennedy approached, drove up on, and stopped on the railroad track, the front wheels of the truck being on the south side of the south rail and the rear wheels being on the north side of the north rail. In the engine of the train, there were an engineer and two brakemen, all of whom testified that they first saw the pickup truck when the train was at a point 50 to 75 feet from the crossing. Upon seeing the truck, the engineer immediately “put the train in emergency,” i. e., activated the emergency brake system of the train. The front of the train’s engine struck the pickup truck on the passenger side door, and carried the truck down the track some 450 feet beyond the crossing. Chalk was injured, but managed to crawl from the truck; Kennedy was killed either from the impact or from a fire which consumed the truck following the impact. Chalk testified but was unable to relate any facts surrounding the accident due to impairment of his memory.

Appellant, in her argument, relies heavily upon the testimony of William H. Tonn, a professional engineer who testified as an expert witness. Appellant argues that the embankment and grass, weeds, and trees obstructed the view to the west of one approaching the track from the north. Tonn testified that at a speed of ten miles per hour (apparently the approximate speed of the pickup truck as it approached the track), Kennedy would have had to have seen the train from a point where the front of the truck was at least 21 feet back from the track in order to have been able to stop in time, and that in fact he could not have seen the train until the front of the truck was only five to thirteen feet from the track. Appellant claims that the members of the train crew testified that they were unable to see the truck until it was at or only a few feet from the track. Moreover, appellant contends that the only evidence which would tend to contradict the testimony of Tonn and this alleged testimony of the train crew members is several photographs labeled Defendant’s Exhibits 11 through 14. These photographs, taken during the trial at the instance of appellee by a professional photographer, depict the view of a train at various distances from the crossing and were taken from the dirt and gravel road at various points north of the crossing. The photographs were admitted into evidence over appellant’s objection. The primary basis for appellant’s objection in the trial court and appellant’s argument here is that the photographs were taken more than four years after the accident and that there is no evidence in the record to show that the photographs are a fair and accurate representation of the scene on the date of the accident. Appellant further contends that there is a presumption that the deceased exercised ordinary care for his own safety, and that if he could not see, then his failure to look could not have been a proximate cause of his death.

Appellee replies that there was sufficient evidence to support both findings. It contends that the jury is the sole judge of conflicting evidence on factual issues and that the evidence here is conflicting. It takes issue with appellant on what was said by the train crew members and the inferences to be drawn therefrom, i. e., that they testified as to when they saw the truck, not when they were able to see it. Appellee contends that appellant waived any error as to the materiality or admissibility of the photographs because she failed to make such complaints in her motion for new trial. Appellee also points out that although appellant complains of the time at which the photographs were taken, appellant’s expert witness did not view the scene until more than four years after the accident, and that the jury could have disregarded his testimony. Finally, it is contended by appellee that there was evidence other than the photographs to support the findings, e. g., that Kennedy was very familiar with the crossing, that the road was in such bad condition as to require slow speeds, and that the angle formed by the road and the tracks was greater than 90 degrees thus allowing better visibility.

Although appellant has phrased her points of error in terms of insufficiency of the evidence to support the two jury findings at issue, it is apparent from the brief of the argument under the points that her real complaint goes to the admissibility of the photographs into evidence. Since appellant failed to make such complaint in her motion for new trial, it is too late to make it here.

The trial court has wide discretion in ruling on the admissibility of photographic evidence. Bell v. Buddies Super-Market, 516 S.W.2d 447, 450 (Tex.Civ.App.-Tyler 1974, writ ref’d n. r. e.). The question on appeal is whether the court abused its discretion. Texas Employers Ins. Ass’n v. Agan, 252 S.W.2d 743, 749 (Tex.Civ.App.-Eastland 1952, writ refused); Briones v. Levine’s Department Store, Inc., 435 S.W.2d 876, 882 (Tex.Civ.App.-Austin 1968), affirmed, 446 S.W.2d 7 (Tex.1969).

In the instant case, the photographs complained of were taken of the scene more than four years after the accident. They were objected to by appellant on the ground that, unless the verifying witness, the professional photographer who took the photographs at the behest of ap-pellee, could testify that they accurately reflected the conditions as they existed in August 1973, they were immaterial to the issues in this case. The objection was overruled and the photographs were admitted, the trial court indicating that any changes due to the lapse of time and change in season might be explained. While it is true that, in order for a photograph to be admissible, there must be some testimony indicating that the picture depicts the locus in quo substantially as it appeared at the time of the incident which is the subject of the suit, and explaining any material changes that occurred in the conditions between the time at which the incident occurred and the time at which the photograph was taken, 2 McCormick & Ray, Texas Practice Series, Evidence sec. 1465 at p. 320 (1956), we are not called upon to decide here whether the trial court abused its discretion in admitting these photographs into evidence. In appellant’s motion for new trial she complains that the jury’s responses to the special issues inquiring about Kennedy’s failure to keep a proper lookout and such failure proximately causing the accident, were not supported by sufficient evidence and were against the great weight and overwhelming preponderance of the evidence. There was no complaint that the trial court erred in admitting the photographs. Inasmuch as this case was tried prior to the effective date (January 1, 1978) of the amendments to the Rules of Civil Procedure which eliminated the requirement for a motion for new trial in jury cases as a prerequisite to complaint on appeal in most instances, appellant, by failing to complain in her motion for new trial of error in the admission of the photographs, has waived any alleged error concerning their admission. Rules 320, 321, 322, and 374, T.R.C.P. (prior to January 1, 1978, amendment thereto); Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 890 (1960); Superior Insurance Co. v. Sanchez, 428 S.W.2d 718, 719 (Tex.Civ.App.Waco, 1968, writ ref’d n. r. e.j; Garrett v. Standard Fire Insurance Co. of Hartford, Connecticut, 541 S.W.2d 635, 638 (Tex.Civ.App.-Beaumont 1976, writ ref’d n. r. e.). Thus, appellant’s contention that the photographs comprise no evidence of Kennedy’s failure to keep a proper lookout because there was no testimony that they depict the scene substantially as it appeared at the time of the accident, comes too late. After the photographs are admitted, the jury is the sole judge of the weight to be given them. 23 Tex.Jur.2d Evidence sec. 326 at p. 475 (1961).

In deciding whether there is sufficient evidence to support a jury’s findings, we are to

“consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if [we conclude] that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust . . The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict.”

In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Although appellant’s points of error in this court are worded so as to complain of the factual insufficiency of the evidence to support the two jury findings regarding contributory negligence and its proximate cause of the accident, her argument thereunder is basically a contention that there is no evidence to support said findings. Without directly contesting the admission of the photographs, she argues that, due to the lapse of time between the accident and the taking of the pictures, they comprise no evidence, nor is there any other evidence, to support the findings complained of. There is no point of error on no evidence; we are concerned only with factual insufficiency points.

We are of the opinion that, viewing the entire record, there is sufficient evidence to support the jury’s findings at issue.

With regard to the four photographs of which appellant complains, they were taken from the dirt and gravel road, at specified distances north of the track and at a height approximating that of the eye level of a driver of a pickup truck. They portray the scene to the west, the direction from which the train came, showing a portion of the embankment and one of appellee’s engines placed at specified distances west of the crossing. In defendant’s exhibit 11, the position of the camera was 25 feet north of the north rail of the track and the position of the train was 70 feet west of the crossing; in exhibit 12, the camera was 21 feet from the track and the train was 110 feet from the crossing; in exhibit 13, the camera was 25 feet from the track and the train, 110 feet from the crossing; and in exhibit 14, the camera was 21 feet from the track and the train, 200 feet from the crossing. In each, the train engine is clearly visible.

Even if these photographs are disregarded, however, we are of the opinion that there is some evidence and sufficient evidence to support the jury’s findings. First, there are three other photographs, defendant’s exhibits 9, 10, and 15, which are not complained of in appellant’s brief. These three were taken by the same photographer and at the same time as the four already discussed. They depict the same scene as the other four, the only differences being further variations in the distance of the camera from the track and the distance of the train from the crossing (in exhibit 9, the camera was 12 feet from the track and the train was 400 feet from the crossing; in exhibit 10, the camera was 21 feet from the track and the train, 70 feet from the crossing; and in exhibit 15, the camera was 21 feet from the track, while the train was 325 feet from the crossing). The same objection was interposed in the trial court with regard to these as to the other four. These, also, were not mentioned in the motion for new trial. Thus, there is no significant difference between the four photographs complained of in appellant’s argument under her points of error, which are said to be of no evidentiary value, and the three not mentioned in said argument. See Wilemon v. State, 385 S.W.2d 573, 576 (Tex.Civ.App.-Dallas 1964), reversed on other grounds, 393 S.W.2d 816 (Tex.1965).

Moreover, it was well established that Kennedy was very familiar with the crossing (and therefore, with its hazards), having crossed it many times in the course of maintaining an oil well south of the crossing. This is a factor in determining the question of improper lookout. See Missouri Pacific Railroad Co. v. Dean, 417 S.W.2d 357, 362 (Tex.Civ.App.-Tyler 1967, writ ref’d n. r. e.). There was testimony that the road crosses the track at somewhat greater than a right angle and that the train approaches the crossing from a slight curve to the right, both factors slightly increasing a driver’s visibility down the track to the west as he approaches from the north. There was testimony by the engineer, who sits on the right side of the train, i. e., the opposite side from which the pickup truck approached the crossing, that he observed the truck as it moved upon the track. There was testimony by the members of the train crew that the truck was stopped on the tracks for a short time (“some two or three seconds”) prior to impact. The rear brakeman on the train, who was riding in the engine, testified that he had a “reasonably good view of the crossing” as he approached it. Contrary to appellant’s assertion, the train crew members did not testify that the first time they were able to see the pickup truck was when it was only a few feet from the track; rather, they testified that the first time they saw the truck, it was only a few feet from the track. Harry E. Williams, a long-time resident of Frankston who was very familiar with the crossing testified, “The only thing I can say, if the pickup had stopped and looked, they could have seen a train coming.” A public surveyor testified that, at a point 20 feet back from the center of the track, he could see “about 600 feet” down the track. There was testimony that the embankment did not begin its rise until a point eleven feet north of the north rail of the track. It was also established that the eye level of a driver of a pickup truck is approximately five and one-half feet above the ground and that the height of the train engine was 15 feet. Further, the headlights of the engine were burning before and after, and therefore presumably at the time of the accident. Moreover, although the jury failed to find that Kennedy’s stopping on the track constituted negligence, they may have inferred from that act that he failed to see the train and that he therefore failed to keep a proper lookout. All of these items of evidence were properly before the jury and constitute some evidence, and sufficient evidence, upon which the jury could have based its findings that Kennedy was negligent in failing to keep a proper lookout and that such negligence was a proximate cause of the accident.

With regard to Tonn’s testimony, his calculations were based upon photographs and a police report; it appears that he did not personally inspect the scene until the morning of the day he testified, i. e., more than four years after the accident. Tonn testified that as a result of his inspection of the scene, there was nothing which changed his original conclusions, but that may be construed as some evidence that the scene had not materially changed since the date of the accident. It is within the sole province of the trier of fact, who has the opportunity to observe the demeanor of the witnesses on the stand, to judge the credibility and weight to be given their testimony, to resolve conflicts between the testimony of one witness and that of another, and to believe part of a witness’s testimony and disregard other portions thereof. Ryan v. Morgan Spear Associates, Inc., 546 S.W.2d 678, 685 (Tex.Civ.App.-Corpus Christi 1977, writ ref’d n. r. e.). This rule applies to all witnesses and all testimony, including expert witnesses and opinion testimony. See Broussard v. Moon, 431 S.W.2d 534, 537 (Tex.1968).

On the issue of proximate cause, appellant points out that the jury found that the crossing was an extrahazardous one, i. e., that it was so dangerous, because of surrounding conditions, that a person using ordinary care could not pass over it in safety unless the railroad company used extraordinary means to signal the approach of its trains. Thus, appellant argues that, even had Kennedy failed to exercise ordinary care, such failure could not have been a proximate cause of the collision. We do not agree. It is manifest that one crossing a railroad track retains the duty to exercise ordinary care for his own safety and that he can be contributorily negligent to such a degree as to preclude his recovery, despite the fact that the crossing is an extrahazardous one. See 7 Baylor Law Review 170, 184-7 (1955) and cases cited therein.

Accordingly, all of appellant’s points of error are overruled, and the judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    James O. COVINGTON et al., Appellants, v. ESTATE OF Patrick Russell FOSTER et al., Appellees.
    No. 6044.
    Court of Civil Appeals of Texas, Waco.
    July 12, 1979.
    Rehearing Denied Aug. 16, 1979.

      Ronald M. Gipson, Dibrell, Dibrell, Greer & Brown, Galveston, for appellants.
    Ervin A. Apffel, Jr. and Douglas W. Poole, McLeod, Alexander, Powel & Apffel, Inc., Galveston, for appellees.
   OPINION

McDONALD, Chief Justice.

The issue in this case is whether, under Texas law, a parent can recover for mental anguish due to injuries to his child.

This case arose out of an automobile accident occurring when a car driven by Patrick Foster collided head-on with an automobile driven by James 0. Covington while traveling in the wrong direction on a divided highway. Patrick Foster was killed in the accident, and James 0. Covington, Pamela Covington, and their minor daughter Mary Jane, all suffered injuries as a result of the accident. Mr. and Mrs. Covington brought suit for their damages caused by injuries to each of them and to their minor daughter, against the Estate of Patrick Foster, and James T. Foster, father of Patrick Russell Foster, whom it was alleged had negligently entrusted his automobile to Patrick Foster. Mary Jane’s cause of action for her own injuries was settled prior to trial. The settlement did not include any cause of action for damages which Mr. and Mrs. Covington may have suffered as a result of the injuries to their daughter, except that they released any claim they might have to future earnings of the minor daughter.

The trial court sustained a Motion in Li-mine filed by defendants, and ordered plaintiffs’ attorney not to read pleadings for or make proof before the jury of mental anguish and suffering by Mr. and Mrs. Cov-ington on account of the injuries sustained by their child Mary Jane.

Trial was to a jury which found: 1) Patrick Foster failed to keep his vehicle on the righthand side of a divided highway; 2) That such failure was a proximate cause of the accident; 3) That Patrick Foster was not driving the vehicle with the permission of James T. Foster; 4) That Patrick Foster did not have a valid driver’s license; 5) That when he permitted Patrick Foster to drive the vehicle James Foster knew Patrick had no driver’s license. The jury fixed James 0. Covington’s damage at $5,000. permitting the jury to consider only the following elements of damage: a) Physical pain and mental anguish in the past; b) loss of earnings in the past; c) the reasonable expenses in the past for necessary medical and hospital care for treatment of injuries resulting from the occurrence in question; fixed Pamela Covington’s damage at $5,000. considering only the above; and fixed medical bills of Mary Jane paid by Mr. and Mrs. Covington at $5,768.

Plaintiffs moved the court to disregard ■ the jury’s answer to Issue 3, and defendants moved for judgment on the verdict. The trial court granted plaintiffs’ motion; denied defendants’ motion, and rendered judgment for plaintiffs against defendant James Foster individually and as administrator of the Estate of Patrick Foster for $15,768.

Plaintiffs appeal contending: “The trial court erred in excluding all evidence and argument of the mental anguish, and physical manifestations thereof, suffered by the parents James 0. Covington and Pamela Covington, as a result of the injuries to their minor daughter, Mary Jane Coving-ton”.

Plaintiffs’ pleading alleged “Finally Mr. and Mrs. Covington have each suffered severe mental pain and suffering by virtue of the severe and extensive injuries to their daughter, Mary Jane”. As noted the trial court sustained defendants’ Motion in Li-mine and ordered plaintiffs’ attorney “Not to read or make proof before the jury of any mental anguish by plaintiffs Mr. and Mrs. Covington, over the injuries sustained by their child Mary Jane”.

As a result the testimony of Mr. and Mrs. Covington as to their mental suffering and physical manifestation thereof resulting from the injury to Mary Jane were taken outside the presence of the jury; as was the testimony of Reverend Darnell, the Coving-tons’ pastor, as to the mental and physical effects of the injuries to Mary Jane on Mr. and Mrs. Covington.

As noted at the outset the issue here is whether under Texas law a parent can recover for mental anguish due to witnessing or experiential perception of injuries to his child caused by the negligence of the defendant.

The annotation in 29 ALR3d Series “Right to Recover Damages in Negligence for Fear of Injury to Another, or Shock or Mental Anguish at Witnessing Such Injury”, pp. 1337-1386, states with respect to the right of a plaintiff to recover for injury resulting from his mental or emotional disturbance, “the authorities are in a state of dissension probably unequaled in the law of torts”, extending from no right to recover, to right to recover “where the plaintiffs’ emotional disturbance was or should have been reasonably foreseeable to the defendant”. Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316.

Other cases hold that a parent who suffered fright or shock resulting in physical suffering as a result of witnessing an incident endangering the life of a child is entitled to recover for such suffering. 38 Am. Jur.2d p. 48; Spearman v. McCrary, 4 Ala.App. 473, 58 So. 927, cert. den., 177 Ala. 672, 58 So. 1038.

Our Supreme Court in Kaufman v. Miller, 414 S.W.2d 164 recognizes this field of the law is in a developing process; suggests that cases in this area should be dealt with on a case by case basis; and applies the test of whether the injury was or should have been reasonably foreseeable to the defendant tort feasor.

In Dave Snelling Lincoln-Mercury v. Simon (Houston, Tex.Civ.App. 1) NRE, 508 S.W.2d 923 the court considered the question of whether a mother could recover damages for mental injury in the form of traumatic depressive reaction, as a result of witnessing the death of her child (caused by negligence of defendant). The jury failed to find plaintiff suffered physical injury in addition to her mental injury, but the trial court granted plaintiff’s motion to disregard such answer and found plaintiff did suffer physical injuries or manifestations as a result of her mental injury. Kaufman v. Miller, supra was interpreted as establishing the test of foreseeability in determining liability in the factual situation involved, and the court then holds that they cannot say as a matter of law defendant could not have foreseen the consequences of his negligence as found by the jury. The court further comments: “ ‘It may be more difficult to prove the connection between the alleged cause and the injury [mental injury at witnessing the death of her child] but if it is proved, and the injury be the proximate result of the cause, we cannot say that a recovery should not be had’ ”.

In Landreth v. Reed (Texarkana, Tex.Civ.App. N.W.H.) 570 S.W.2d 486 the court was faced with whether a young child could recover for the emotional trauma associated with the drowning death of her sister. The trial court awarded the minor $25,000. for injuries she received as a result of witnessing the death of her sister. The award was challenged, on among other grounds, that she did not receive a physical impact as a result of the negligent act. The court said:

“The problem of whether to allow recovery of damages by one who witnesses the negligent injury of another person has confronted and perplexed the courts for decades * * * [Some courts hold] each case should be determined upon the traditional concepts of negligence and proximate cause based upon reasonable foreseeability * * *. Although the exact question has not been definitely answered by a decision of our own courts, it appears that Texas will follow the modern rule, * * * based upon those traditional concepts. * * *
“It is generally agreed that in determining foreseeability in this type of case, several facts will be relevant: 1) whether the plaintiff was located near the scene of the accident; 2) whether the shock resulted from a direct emotional impact upon the plaintiff from a contemporaneous perception of the accident, as distinguished from learning of the accident from others after its occurrence; and 3) whether the plaintiff and the victim were closely related”.

In the case at bar Mary Jane was in the car with her parents; all three were injured; the child was unconscious and totally paralyzed; Mr. Covington testified on bill of exception that out of concern for the daughter he sustained mental suffering as a result of his daughter’s injury; that he suffered nervous stomach ulcers, general nervousness, difficulty sleeping, worry, and disability to concentrate, Mrs. Covington testified on bill of exception that out of concern for the daughter she suffered much mental anguish; that the child was comatose for days, paralyzed and her left side was spastic, suffered brain damage and eye damage; that she is still bothered by nervous stomach, nervous tension; that a prior condition of “spastic colon” worsened materially after the accident; and especially when she thought about Mary Jane’s condition. Reverend Darnell testified that prior to the accident Mr. and Mrs. Covington were calm stable people; that after the accident they had severe emotional problems; that he counselled them; that their injuries were minimal to the injuries of their daughter; that the mental anguish of Mr. and Mrs. Covington was largely caused by the daughter’s injuries.

We think it not unforeseeable as a matter of law that a person who proceeds the wrong way in a motor vehicle on a divided highway could collide with a vehicle injuring the occupants including a minor child; and that the parents would suffer emotional and mental injury because of their minor child’s injuries, separate and apart from their own physical and emotional injuries.

We sustain plaintiffs’ point, hold that the trial court erred in excluding plaintiffs’ pleading, evidence and argument of the mental anguish and physical manifestations thereof suffered by plaintiffs as a result of the injuries to their daughter; and that this requires a reversal of the judgment and a remand of the case.

Plaintiffs have raised an additional point, and defendants have raised a crosspoint, but in view of another trial we do not reach same.

REVERSED AND REMANDED.

      . See 18 A.L.R.2d pp. 220-240 for contrary cases.

      . In such case the court held that the plaintiffs’ injury was not reasonably foreseeable to defendant.


text:
    Tomas VELASQUEZ et al., Appellants, v. Robert JAMAR, M. D., et al., Appellees.
    No. 1196.
    Court of Civil Appeals of Texas, Tyler.
    July 12, 1979.

      Gerald J. Goodwin, Houston, for appellants.
    Knox D. Nunnally, Vinson & Elkins, Houston, for appellees Jamar & Weiner.
    Roger A. Rider, Pearson Grimes, Butler, Binion, Rice, Cook & Knapp, Houston, for appellee Angelton-Danbury General Hospital.
   SUMMERS, Chief Justice.

This is a negligence suit in which recovery is sought for personal injuries allegedly sustained by Mary Velasquez at the time of her birth. The suit was brought by her parents, Tomas and Andrea Velasquez, individually and as next friends of Mary Velasquez, against Robert Jamar, M.D., Benjamin Weiner, M.D., Medical Center Clinic of Angleton, and Angleton-Danbury General Hospital.

Between her seventh and eighth month of pregnancy, Mrs. Velasquez visited the Medical Center Clinic of Angleton and became a patient of Dr. Jamar. Over the course of several visits it was determined that the baby was in a breech position, meaning the baby would be born feet first rather than head first. In the early morning of August 31, 1971, Mrs. Velasquez began to experience labor pains and was taken to Angleton-Danbury General Hospital by her husband. After admission into the hospital at approximately 5:00 a.m., she was taken to the labor room. Mrs. Velasquez’s labor progressed rapidly, and she was taken to the delivery room where she was placed under full anesthetic. Dr. Weiner, a partner of Dr. Jamar in the Medical Center Clinic of Angleton, delivered the baby, Mary Velasquez, by full extraction. Upon subsequent examination, it was observed that Mary Velasquez had a fractured right leg.

It is this injury to Mary Velasquez’s right leg which is the subject of the instant lawsuit. Prior to trial, defendant Angleton-Danbury General Hospital filed special exceptions to Plaintiffs’ First Amended Original Petition asserting that plaintiffs had failed to state a cause of action that would bring them within the waiver of governmental immunity under the Texas Tort Claims Act. On August 31, 1977, the trial court sustained defendant Angleton-Dan-bury General Hospital’s special exceptions and ordered plaintiffs to amend their petition, sufficient to state a cause of action within the Texas Tort Claims Act, by September 6, 1977. On September 6, 1977, Plaintiffs’ Second Amended Original Petition was filed, but the trial court held it to be insufficient and dismissed defendant An-gleton-Danbury General Hospital from the suit. The plaintiffs continued to prosecute their claim against defendants Dr. Robert Jamar, Dr. Benjamin Weiner, and Medical Center Clinic of Angleton, and the case proceeded to trial in this posture.

In response to the special issues submitted, the jury refused to find that either Dr. Jamar or Dr. Weiner was negligent in the management of Andrea Velasquez’s pregnancy or the delivery of Mary Velasquez. (Special Issues Nos. 1 and 3) In addition, the jury found no damages as a result of the injury to Mary Velasquez’s right leg. (Special Issue Nos. 5 and 6) In accordance with the jury’s verdict, the trial court rendered judgment that plaintiffs take nothing.

From this adverse judgment, appellants, plaintiffs below, have perfected this appeal predicated upon six points of error. Appellants’ points of error raise two principal contentions: (1) that the trial court erred in finding that appellants failed to state a cause of action within the waiver of governmental immunity created by the Texas Tort Claims Act and (2) that the trial court erred in instructing the jury not to include any amount for congenital pseudarthrosis in regards to Special Issues Nos. 5 and 6, the damage issues.

We shall first address the point of error dealing with the dismissal of defendant An-gleton-Danbury General Hospital on grounds of governmental immunity. Resolution of this point of error requires construction of the allegations in Plaintiffs’ Second Amended Original Petition. In paragraph VI, appellants alleged that:

“Mary E. Velasquez’s injuries were a direct result of and proximately caused by the negligence of the Defendant, Angle-ton-Danbury General Hospital, in the following particulars, to-wit:
(1) Giving the Plaintiff full anesthetic (gas) and thereby a eliminating medically required explusive efforts;
(2) Giving the Plaintiff a full anesthetic before the arrival of the doctor;
(3) Failure to monitor fetal heart tones;
(4) Carelessly and negligently setting and placing wrapping on the Plaintiff’s broken leg;
(5) Failure to make necessary preparations for a Caesarian [sic] Section including having equipment and a surgeon on standby.”

In addition, paragraph VIII of Plaintiffs’ Second Amended Original Petition sought to invoke the doctrine of res ipsa loquitur.

The Texas Tort Claims Act, Article 6252-19, Tex.Rev.Civ.Stat.Ann. (1970), provides for a waiver of governmental immunity in three general areas: use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property. Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex.1976). Appellants seek to come within the waiver of immunity contained in Sec. 3 of the Texas Tort Claims Act, supra, which provides:

“Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment, or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, and it shall not extend to punitive or exemplary damages. Liability hereunder shall be limited to $100,000 per person and $300,000 for any single occurrence for bodily injury or death and to $10,000 for any single occurrence for injury to or destruction of property.”

Appellants rely on Lowe v. Texas Tech University, supra; Overton Memorial Hospital v. McGuire, 518 S.W.2d 528 (Tex.1975); and Mokry v. University of Texas Health Science Center at Dallas, 529 S.W.2d 802 (Tex.Civ.App. — Dallas 1975, ref’d n.r.e.). In each of these cases, the allegations were held sufficient to state a cause of action within the waiver of the Texas Tort Claims Act, supra. However, the allegations in those cases are distinguishable from those in the instant case.

“In Mokry, McGuire and Lowe, the injuries are alleged to have proximately resulted from the negligent use of property in some respect deficient or inappropriate for the purpose for which it was used — in McGuire, the hospital bed without rails; in Mokry, the laboratory sink without a strainer; and in Lowe, the football uniform without tape or knee brace.” Brantley v. City of Dallas, 545 S.W.2d 284, 286 (Tex.Civ.App. — Amarillo 1976, ref’d n.r.e.).

In the instant case, we find no allegations of any tangible property being either deficient or inappropriate for the purpose for which it was used. Appellants take the position that a cause of - action exists whenever a government employee and a piece of tangible property are combined. Chief Justice Greenhill expressly rejected such a premise in Lowe by giving the following example:

“A hypothetical example will point up the problem: assume that in a State-operated hospital, one of its doctors negligently removed the wrong kidney. In so doing, he uses tangible personal property, — a scalpel. There is no defect in the scalpel, but there is injury in the use of tangible personal property. The Legislature could provide a waiver for the negligent conduct of the doctor, but it has not. Did it intend a waiver based on the condition or use of tangible personal property, — the scalpel? I do not think so.” (540 S.W.2d 303)

The allegations of negligent conduct alone are insufficient to state a cause of action within the waiver of governmental immunity created by Sec. 3 of the Texas Tort Claims Act, supra.

Appellants’ first point of error is hereby overruled.

Appellants’ points of error nos. 2 through 6 contend that the trial court erred in instructing the jury not to include any amount for congenital pseudarthrosis in regards to Special Issues Nos. 5 and 6. Appellants contend that such an instruction was error because (1) it assumes that Mary Velasquez did have congenital pseudarthro-sis, (2) it constitutes a comment on the weight of the evidence, (3) it was unnecessary and prejudicial to appellants, (4) it failed to instruct the jury that it must be the sole proximate cause of Mary Velasquez’s disability before it could be a bar to recovery, and (5) it was prejudicial as a matter of law for the reason that appellant Mary Velasquez was in fact entitled to recover if the negligence of appellees aggravated or prolonged a condition known as congenital pseudarthrosis. Appellees contend that even if there were an error in the submission of the damage issues, the error must be harmless because the jury absolved appellees of any negligence. We agree.

In response to Special Issues Nos. 1 and 3, the jury refused to find that Dr. Jamar was negligent in his management of Mrs. Velasquez’s pregnancy or that Dr. Weiner was negligent in his delivery of Mary Velasquez. Appellants direct no attack toward these jury findings. Therefore, the trial court’s error, if any, in submitting the instruction in question regarding damages is harmless. Rule 434, T.R.C.P. The damage issue became immaterial when the jury refused to find either defendant guilty of negligence. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335 (1939, opinion adopted); Burns v. Bridge Engineering Corp., 465 S.W.2d 427, 434 (Tex.Civ.App.— Houston [14th Dist.] 1971, ref’d n.r.e.); O’Day v. Sakowitz Bros., 462 S.W.2d 119, 124 (Tex.Civ.App. — Houston [1st Dist.] 1970, ref’d n.r.e.).

Appellants’ points of error nos. 2 through 6 are therefore overruled.

We have considered all of appellants’ points of error and consider the same to be without merit.

Judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    William J. KRUPICKA, Appellant, v. Freddie E. WHITE and Wife, Billie White, Appellees.
    No. 1258.
    Court of Civil Appeals of Texas, Tyler.
    July 12, 1979.

      Dane Everton, Lesikar, Kacir & Everton, Temple, for appellant.
    Jerry Secrest, Daniel, Tarver & Secrest, Temple, for appellees.
   MOORE, Justice.

Plaintiffs, Freddie E. White and wife, Billie White, brought suit against defendant, William J. Krupicka, seeking to recover the value of improvements made on a house situated on land owned by the defendant. Plaintiffs alleged that prior to the time they made the improvements, Krupicka entered into an oral agreement with them agreeing to convey to them the house and 2.5 acres of land for the sum of $7,500.00. Plaintiffs alleged that after valuable improvements had been made on the house, Krupicka repudiated the agreement and refused to sign the deed. Defendant answered with a general denial and affirmatively alleged that the oral contract was unenforceable under the provisions of sec. 26.01, et seq., Tex.Bus. & Comm.Code Ann., known as the Statute of Frauds. After a trial before a jury, the trial court rendered judgment on the verdict in favor of the plaintiffs for the sum of $4,500.00, from which the defendant perfected this appeal.

We affirm.

The material facts do not appear to-be in dispute. In the first part of August 1972, White and Krupicka entered into an oral agreement for the sale and purchase of a house and 2.5 acres of land for the sum of $7,500.00. At the time of the oral agreement the house was not in a liveable condition due to the fact that Krupicka had moved it from one location on his land to another. The parties agreed that White would make improvements and after the improvements were made he would secure a loan for $7,500.00 in order to pay for the property and that Krupicka would then execute the deed. Thereafter, White leveled the house on the land, underpinned it, painted it inside and out, built a porch, dug water lines, dug and installed a concrete cesspool, laid lateral lines, repaired the eaves of the house, replaced some windows, replaced some doors and all door hardware, replaced bathroom and kitchen hardware, replaced most light fixtures, rewired the house, refinished the floors, laid some linoleum, installed a gravel driveway, planted trees, and built a bridge across the county road ditch to make a driveway. Krupicka assisted him to some extent in making some of the improvements.

With the permission of Krupicka, the Whites moved into the house sometime about the middle of October 1972. In December 1972, they obtained a loan commitment from a savings and loan institution to obtain a loan in the amount of $9,000.00. According to Mr. White’s testimony, the agreement was that upon the completion of the improvements White was to obtain a loan on the property for as much as he could above $7,500.00, and the balance above that amount was to be returned to him by Mr. Krupicka to reimburse his expenses in making the improvements. According to Mr. Krupicka, the agreement was that the plaintiff would obtain a loan only for $7,500.00. He testified, however, that after plaintiffs commenced the improvements Mr. White told him he was going to get a loan for more than $7,500.00 and that it was alright with him.

After the improvements had been completed the plaintiffs executed all of the papers required by the savings and loan association to obtain a loan in the amount of $9,000.00. Thereafter, Mr. Krupicka went to the loan office for the purpose of executing a deed to the property in order to close the loan. He testified that when he found that the loan was for $9,000.00 rather than $7,500.00, he refused to execute the deed because he never agreed that they were to obtain a loan in excess of $7,500.00. A few days after refusing to sign the deed, Mr. Krupicka went to the Whites’ home and demanded that they start paying rent or move out of the house. Mr. White testified that he offered to get another loan or to do whatever was necessary but Mr. Krupicka became very belligerent and insisted that they either pay rent or move out of the house. Mr. White testified that sometime in January 1973, he and his family came home one night and found padlocks on all of the doors to the house and a wire stretched across the driveway with something sticking up in the driveway to keep them from entering. Mr. Krupicka admitted that he padlocked the house but testified that the Whites were not living in the house at the time. While the record is not clear it appears that the plaintiffs were compelled to seek injunctive relief in order to move their possessions from the house.

Mr. White testified that they had expended the sum of $1,705.73 for materials in making the improvements and he estimated the reasonable value of the labor for himself and his family amounted to approximately $4,000.00. Plaintiffs also introduced testimony showing that before the improvements were made the property had a value of $7,500.00 and after the improvements were made the property had a value of $12,000.00.

In response to the special issues the jury found: (1) the value of the 2.5 acres and house immediately before the improvements were made was $7,500.00; (2) that after the improvements were made the property had a value of $12,000.00; (3) that the reasonable value of the labor provided by White and his family in making the improvements amounted to $2,800.00; and (4) that the reasonable value of the materials provided by White in making the improvements amounted to $1,700.00. The plaintiffs did not request and the trial court did not submit to the jury any other issues with regard to the plaintiffs’ claim for unjust enrichment.

Under the first point of error the defendant contends that the evidence raises a fact issue on the question of whether the defendant breached or repudiated the oral contract, and that by their failure to request or obtain an affirmative jury finding thereon, the plaintiffs waived their right of recovery. In reply, plaintiffs say that each and every element of their claim except for the amount of damages was conclusively established as a matter of law and therefore it was not necessary to submit such an issue to the jury.

In his brief, defendant makes the following significant statements on pp. 4-5:

“At the trial, it was established beyond question that: (1) in the first part of August, 1972, White and Krupicka entered into an oral agreement for the sale of a house and 2.5 acres of land for $7,500.00; (2) the property was part of the defendant’s homestead; (3) White was purchasing the property as it stood, and the house was not in a liveable condition; (4) the plaintiff in the early part of August began to make improvements to the property and that the improvements were valuable; (5) the plaintiff finished the improvements and began living in the house in the first part of October 1972; (6) the deal fell through and was never consummated.”

While we have found no Texas case which we consider to be directly in point, the well established rule in other jurisdictions is that where a vendee under and in reliance upon an oral contract to purchase real estate makes valuable improvements on the property and the vendor repudiates the contract, the vendee may recover for such improvements to the extent that they enhance the value of the property. 37 C.J.S. Frauds § 260, pp. 781-82; Schultz v. Johnson, 156 Minn. 357, 194 N.W. 884, 885 (1923); Vogel v. Massey, 256 Ky. 419, 76 S.W.2d 257 (1934); Wlaschin v. Affleck, 167 Neb. 403, 93 N.W.2d 186 (1958); Blank v. Rodgers, 82 Cal.App. 35, 255 P. 235 (1927); also see Morrison v. Farmer, 147 Tex. 122, 213 S.W.2d 813 (1948).

In Schultz v. Johnson, supra, the court stated:

“The right of the vendee to recover for improvements made in good faith in reliance on an oral contract which fails through no fault of his, does not rest on the contract or any right to enforce it, but rests on the ground that the vendor through whose fault the contract failed ought not to obtain the enhanced value given to his property by the money and labor of the vendee without making compensation therefor.
“Defendant urges that plaintiff did not show a tender of performance on his part. After defendant had refused to make the written contract unless made subject to the deed tó the hunting club and for an increased rate of interest on the deferred payments, a further tender of performance by plaintiff was unnecessary.”
The court in that case specifically held: “. . . where a vendee under and in reliance upon an oral contract to purchase makes valuable improvements on the property, and the vendor refuses to carry out the contract, the vendee may recover for such improvement to the extent that they enhanced the value of the property.”

Although some courts do not specifically characterize this type of action as one for “unjust enrichment” or “quasi-contract,” it is clear that the basis of most of the decisions rests on the same principal. 37 C.J.S. Frauds, § 260, p. 782; Wlaschin v. Aifleck, supra.

As we view the record in the present case, all essential elements of the plaintiffs cause of action for unjust enrichment, except for the amount of damages, were conclusively established. This being the case, no jury finding was necessary to establish such undisputed facts. Rule 272, Tex.R.Civ.P.; Sullivan v. Barnett, 471 S.W.2d 39 (Tex.1971); Marburger v. Jackson, 513 S.W.2d 652 (Tex.Civ.App. — Corpus Christi 1974, writ ref’d n. r. e.).

While defendant concedes that the parties entered into an oral contract for the sale and purchase of the property, he contends that a disputed fact issue was raised upon the question of whether he repudiated or refused to carry out the oral contract.

In this connection the undisputed testimony shows that when the defendant advised plaintiffs that he was not going to sign the deed, Mr. White offered to obtain a new loan or to do whatever was necessary to satisfy the defendant so as to consummate the transaction. Rather than attempting to negotiate the matter, Mr. Kru-picka became belligerent and demanded that the plaintiffs commence paying rent or vacate the premises. At the trial, Krupicka testified that. he would have signed the deed and consummated the transaction at the time the deed was presented to him in December 1972, had the deed recited a consideration of $7,500.00, but from and after that time he changed his mind. At one point in his testimony Krupicka testified that he was still willing to consummate the contract provided he was furnished with a deed showing a consideration of $7,500.00; but he later changed his testimony stating, in substance, that he would not fulfill the contract under any circumstances. In our view, defendant’s testimony, when taken together with the undisputed facts showing that he evicted the plaintiffs from the premises, conclusively shows that he repudiated and refused to carry out the contract. In these circumstances a further tender of performance by the plaintiffs was unnecessary. Defendant’s first point of error is overruled.

By the second point defendant Krupicka urges that the trial court erred in overruling his special exceptions to the plaintiffs’ petition on the ground that the petition failed to allege a cause of action for the breach of an implied contract. Defendant seems to take the position that plaintiffs’ cause of action was for the recovery of the value of labor and material based upon an implied contract. As we view the record the contention is without merit.

In his brief, defendant undertakes to interpret the allegations of the plaintiffs’ petition and makes the following statement at p. 4 from which we quote:

“The Plaintiff plead an oral contract to sell land between the Plaintiff as purchaser and defendant as seller, the taking of possession by Plaintiff, construction of improvements by Plaintiff, an intentional and bad faith breach of the contract of sale by the Defendant, the inuring of the improvements to the benefit of the Defendant, and the unjust enrichment of the Defendant. There was no prayer for specific performance.”

Under our rules of civil procedure the only requirement is that the pleadings set forth a short statement of the cause of action sufficient to give fair notice of the claim involved. Rule 47(a), Tex.R.Civ.P. The nature and character of the suit is determined from the allegations in the petition. Wynn v. State Ex Rel. Wichita County, 431 S.W.2d 934, 935 (Tex.Civ.App. — Fort Worth 1968, no writ). From the declarations of the petition there is thus a showing of an unjust enrichment of the defendant at the expense of the plaintiff from which follows the legal conclusion that plaintiff is entitled to relief to the extent of the reasonable value of his improvements. Contrary to defendant’s contention, plaintiffs did not seek a recovery for labor and materials on the basis of a contract implied in fact, but based their cause of action on quasi-contractual liability for unjust enrichment.

In ruling on special exceptions to the pleadings, a large measure of discretion is lodged in the trial court and, in the absence of a showing of abuse of discretion or injury resulting from the ruling of the court, the ruling will not be disturbed. H. O. Dyer, Inc. v. Steele, 489 S.W.2d 686, 689 (Tex.Civ.App. — Houston [1st Dist.] 1973, no writ); Rodriguez v. Yenawine, 556 S.W.2d 410 (Tex.Civ.App. — Austin 1977, no writ). In our view, the pleadings were sufficient to give the defendant fair notice of the claim involved.

In points three through eight, defendant attacks the jury’s findings to special issues nos. 3 and 4 wherein the jury found that the reasonable value of the labor and materials furnished by the plaintiffs in improving the property amounted to $4,500.00. Defendant contends that there is no evidence to support such findings. Alternatively, he contends that the findings are against the overwhelming weight and preponderance of the evidence. For reasons hereinafter explained, we have concluded that the jury’s findings to these issues are superfluous and immaterial.

In a case of this type, the value of the improvements is to be measured not by the amount expended for the improvements but by the increase in the value of the land. 37 C.J.S. Frauds § 260, pp. 781-82; Morrison v. Farmer, supra; Schultz v. Johnson, supra.

In response to special issues nos. 1 and 2, the jury found that the property in question was, enhanced in value in the amount of $4,500.00. Defendant has no point of error challenging the jury’s finding to Special Issues Nos. 1 and 2. In support of the judgment it must be presumed that the court disregarded the jury’s finding to special issues 3 and 4 and entered judgment on the basis of the enhancement in value of the property as found by the jury in response to special issues 1 and 2.

The jury’s findings as to the amount of labor and material furnished by the plaintiffs is nothing more than surplusage. Martin v. Darcy, 357 S.W.2d 457 (Tex.Civ.App. — San Antonio 1962, writ ref’d n. r. e.). For this reason they could not have affected the judgment to be rendered. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607, 615 (1952); City of San Augustine v. Roy W. Green Co., 548 S.W.2d 467, 470 (Tex.Civ.App. — Tyler 1977, writ ref’d n. r. e.). Under these circumstances a determination of whether the findings were supported by the evidence, or whether such findings are against the overwhelming weight and preponderance of the evidence, would be purely academic and unnecessary.

The judgment of the trial court is affirmed.

      . This is the second appeal of this case. See Krupicka v. White, 519 S.W.2d 155 (Tex.Civ.App. — Austin 1975, no writ). In the first case plaintiffs’ request for specific performance was denied by the Court of Civil Appeals.


author: DODSON, Justice.

text:
    DENVER-ALBUQUERQUE MOTOR TRANSPORT, INC., Appellant, v. The STATE of Texas and Sherman County, Texas, Appellees.
    No. 8982.
    Court of Civil Appeals of Texas, Amarillo.
    July 13, 1979.
    Rehearing Denied Aug. 8, 1979.

      Robinson, Pelts, Meyers, Starnes & Lat-ting, Joseph H. Hart, Austin, for appellant.
    Dale Paul Summa, County Atty., Strat-ford, for appellees.
   DODSON, Justice.

Defendant Denver-Albuquerque Motor Transport, Inc., a Colorado corporation, appeals from a summary judgment awarding the State of Texas and Sherman County, Texas, delinquent taxes for 1975 and 1976 on defendant’s intangible assets under Tex. Rev.Civ.Stat.Ann. art. 7105 (Vernon 1960). Defendant maintains that the Texas Legislature did not intend for the intangible assets tax to be imposed on a wholly interstate carrier; that the tax constitutes an undue burden on interstate commerce in violation of U.S. Const, art. I, § 8; and that an issue of fact exists because the State erroneously and unlawfully calculated its intangible assets for the years in question. We affirm the judgment.

I.

The summary judgment proof shows, in part, that defendant is a corporation engaged in business as a for-hire carrier of meats, meat by-products, and other products requiring refrigeration. Defendant operates strictly in interstate commerce pursuant to authority granted by the Interstate Commerce Commission. Its interstate authority is registered with the Railroad Commission of Texas, but it does not possess a certificate of convenience and necessity. Defendant operates its vehicles on the public highways of Texas, and according to its report to the State Tax Board dated December 31, 1974, its vehicles traveled 3,454,764 actual miles within the State. The State Comptroller certified that in 1975 and 1976 defendant owned and held properties subject to intangible assets taxes within the State of Texas valued at $111,130 and $133,590, respectively. Assessments of $1,022.40 and $1,229.03 were levied against defendant for these respective years, which amounts are delinquent and have penalty and interest owing thereon.

Article 7105, Tex.Rev.Civ.Stat.Ann. (Vernon 1960), provides, in part, that:

[Ejach ‘common carrier motor carrier’ operating under certificates of convenience and necessity issued by the Railroad Commission of Texas, doing business wholly or in part within this State, whether incorporated under the laws of this State, or of any other State, territory, or foreign country, and every other individual, company, corporation, or association doing business of the same character in this State . . . shall pay an annual tax to the State, beginning with the first day of January of each year, on their intangible assets and property, and local taxes thereon to the counties in which its business is carried on . . . . The intangible taxable values of said common carrier motor carriers shall be apportioned to the counties in or through which they operate in proportion to the distance in miles of the highways traversed by said carriers in each respective county (emphasis added).

Defendant argues that the language “each ‘common carrier motor carrier’ operating under certificates of convenience and necessity issued by the Railroad Commission of Texas, doing business wholly or in part within this State” describes an intrastate motor carrier only, and that as an interstate motor carrier operating under authority granted by the Federal Interstate Commerce Commission it is not amenable to the tax under this language. Under our analysis of the application of the statute to the facts in this case, we deem it unnecessary to determine the correctness of defendant’s argument in this regard.

The statute further provides, in the conjunctive, that the tax is imposed on “every other individual, company, corporation, or association doing business of the same character in this State.” Defendant contends that this language refers only to non-conforming intrastate motor carriers, i. e., any intrastate motor carrier operating without the convenience and necessity certificate granted by the Railroad Commission. We do not agree.

The legislative intent in enacting the law is the essence of the law. Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037, 1038 (1916). Legislative intent is ascertained from the entire context of the legislation. City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273, 278 (1951); Nichols v. Aldine Independent School District, 356 S.W.2d 182, 183 (Tex.Civ.App.— Houston 1962, no writ). When the intent is ascertained, then the court has a duty to give full recognition to that intent. White v. McGill, 131 Tex. 231, 114 S.W.2d 860, 863 (1938); McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722, 725 (1943). In giving affect to the legislative intent, the courts should give the statute a practical and reasonable construction rather than a literal or thwarting construction. Brown & Root v. Durland, 126 Tex. 20, 84 S.W.2d 1073, 1075 (Tex.Comm'n App.1935, opinion adopted).

Construing the statute in its entirety, we are persuaded that the Legislature intended the phrase “every other . corporation . . . doing business of the same character in this State” to encompass both intrastate and interstate motor carriers transporting goods for hire over the public highways of the State. These motor carriers have one common characteristic— they use the State’s public highway system to conduct business activities within and through the State. We therefore conclude that defendant, a corporation engaging in the interstate transportation of goods for hire on the public highways of Texas, is amenable to the tax imposed by the challenged statute.

II.

Defendant maintains that the intangible assets tax constitutes an undue burden on interstate commerce in violation of U.S. Const, art. I, § 8. Specifically, defendant contends that the tax is strictly local, bears no relationship to its activities in the county, and therefore it is subsidizing the county for programs from which it neither seeks nor receives any services. We do not agree.

Defendant cites general principles from Colonial Pipeline Co. v. Traigle, 421 U.S. 100, 95 S.Ct. 1538, 44 L.Ed.2d 1 (1975), in support of its position. In Colonial however, the Court sustained the validity of a franchise tax levied upon an interstate pipeline company for doing business within the State. The Court reiterated “that the mere act of carrying on business in interstate commerce does not exempt a corporation from state taxation.” Id. at 108, 95 S.Ct. at 1543. The Court noted that it had, in recent decisions, sustained:

[NJondiscriminatory, properly apportioned state corporate taxes upon foreign corporations doing an exclusively interstate business when the tax is related to a corporation’s local activities and the State has provided benefits and protections for those activities for which it is justified in asking a fair and reasonable return.

Id. The Court, summarizing, stated that “ ‘[t]he simple but controlling question is whether the state has given anything for which it can ask return.’ ” Id. at 109, 95 S.Ct. at 1543 quoting Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 85 L.Ed. 267 (1940) and General Motors Corp. v. Washington, 377 U.S. 436, 440-41, 84 S.Ct. 1564, 12 L.Ed.2d 430 (1964).

In the case at bar, this controlling question is answered affirmatively. The State and its political subdivision, the county, provide and maintain the public highway system which defendant traverses in conducting its business activities. Under these circumstances, we conclude that the intangible assets tax does not constitute an undue burden on interstate commerce in violation of the United States Constitution.

III.

Defendant’s final point of error attacks the summary judgment on the ground that genuine questions of fact exist concerning the amount of tax owed for each year in question. Defendant asserts that this fact question arises because the Texas Comptroller of Public Accounts made certain mathematical errors in the application of its formula to calculate defendant’s intangible assets for 1975, and under this formula the valuation for 1976 is necessarily erroneous.

The intangible assets tax statute provides that the tax imposed shall be assessed and levied in the manner provided in Chapter 4, Title 122 of the Revised Civil Statutes of Texas (1925). This chapter establishes the State Tax Board and provides, inter alia, for the Tax Board to make a preliminary estimate, valuation and apportionment of the true value of the taxpayer’s intangible property within this State. Each taxpayer is then notified by registered mail on or before May 31 of each year of the Tax Board’s preliminary determination. The taxpayer has fifteen days from the mailing of notice to appear before the Tax Board to introduce evidence and request the Board to change the preliminary valuation and apportionment or to cancel the valuation and apportionment. The Tax Board makes its final valuation and apportionment of the taxpayer’s intangible assets by June 20 of each year and certifies this to the tax assessor of the appropriate counties as soon thereafter as is practicable.

In the case at bar, defendant directed a letter to the Texas Comptroller of Public Accounts dated June 3, 1975, which states:

We are in receipt of your Intangible Value Assessment of 111,130 against our company. This valuation has increased approximately 27% over the prior year. May we please be informed as to the reason for this increase as it seems high to us.

On June 13,1975, the Comptroller of Public Accounts responded as follows:

The enclosed copy of the pencilled work sheet used as a guide in the determination of the intangible valuation assessment notice of which you received in our letter of May 27,1975, should explain the increase to you. The increased assessment is apparently attributable to the corresponding increase in average net earnings, and subsequent capitalization there of (sic). You will also note that this department in order to avoid greater fluctuations in assessments from year to year applies a stabilizing factor which gives twenty percent weight to the current years value and eighty percent to that of the previous year.
Any correspondence in this matter should be directed to the attention of the Ad Valorem-Intangible Tax Division, File Reference 2754, or telephone 512/475— 4166.

The summary judgment proof fails to show whether defendant took any further action to appraise the Comptroller or Tax Board of the alleged mathematical errors in calculating the 1975 tax. Nor does the proof show any action by defendant concerning the 1976 tax. Defendant failed to notify the Tax Board of any errors before it certified defendant’s final intangible assets valuation on June 20, 1975, and June 17, 1976, respectively.

In essence, defendant’s final point of error is a collateral attack on the assessed intangible asset valuation for 1975 and 1976. It has been noted in Druesdow v. Baker, 229 S.W. 493, 495 (Tex.Comm’n App.1921, opinion adopted), aff’d, 263 U.S. 137, 44 S.Ct. 460, 68 L.Ed. 212 (1923), that decisions of the Tax Board are quasi-judicial in nature and a collateral attack cannot be justified in the absence of fraud, or something equivalent, such as lack of jurisdiction, an obvious violation of the law, or the adoption of a fundamentally wrong princi-pie or method which substantially injures the complainant. We are not persuaded that the alleged mathematical errors constitute fraud, a violation of the law, or the adoption of a fundamentally wrong principle or method which would entitle defendant to invoke the collateral attack rule of Druesdow. Defendant’s final point of error is overruled.

In summary, we overrule defendant’s three points of error and affirm the judgment of the trial court.

COUNTISS, J., not participating.