author: OSBORN, Justice. PRESLAR, Chief Justice,

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. J. T. MARSH, Appellee.
    No. 6706.
    Court of Civil Appeals of Texas, El Paso.
    May 24, 1978.
    Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Ray Stoker, Jr., Odessa, for appellant.
    Warren Burnett Associated, Ruff Ahders, Richard J. Clarkson, Odessa, for appellee.
   OPINION

OSBORN, Justice.

Under the decision in Select Insurance Company v. Boucher, 561 S.W.2d 474 (Tex.1978), a compensation carrier is not entitled to submit special issues as to partial incapacity as inferential rebuttal issues, and, under our holding in this case, the verdict is not incomplete when those issues are submitted but left unanswered by the jury under instructions like those given in this case.

In this case, the claimant alleged that the accidental injuries which he received on February 18, 1976, while an employee of Automotive Proving Grounds, Inc., resulted “in total and permanent disability.” The carrier responded with a general denial. There was no pleading of partial incapacity by either party. The jury’s verdict was as follows:

The Appellant presents one point of error urging that the trial Court erred in receiving an incomplete verdict, in discharging the jury, and in entering judgment on an incomplete verdict. The parties have stipulated that Appellant’s counsel objected to the receiving of the verdict prior to the time the jury was discharged.

First, it must be noted that Rule 295, Tex.R.Civ.P., provides:

“If the verdict is informal or defective, the court may direct it to be reformed at the bar. If it is not responsive to the issue submitted, or contains conflicting findings, the court shall call the jury’s attention thereto in writing and' send them back for further deliberation.”

Under the holdings in Traders & General Ins. Co. v. Daniel, 114 S.W.2d 336 (Tex.Civ.App.—El Paso 1938, no writ); Traders & General Ins. Co. v. Patton, 92 S.W.2d 1083 (Tex.Civ.App.—Amarillo 1936, writ dism’d); and Texas Employers’ Ins. Ass’n v. Horn, 75 S.W.2d 301 (Tex.Civ.App.—Amarillo 1934, no writ), upon which Appellant relies, issues as to partial incapacity were material issues where total and permanent issues had been answered favorably to the claimant. In those cases, the Courts held that the verdict was incomplete and would not support a judgment for the workman when the partial incapacity issues were left unanswered.

In 1954, the Supreme Court of Texas in Stone v. Texas Employers’ Insurance Association, 273 S.W.2d 59, considered many of the earlier cases which had held that “partial incapacity” is an affirmative defense to “total incapacity.” While the earlier decisions were not actually overruled, the Court did analyze the issue raised by those holdings and said:

“The controlling issue in this case is whether or not the total incapacity is permanent or temporary. If permanent, the case is ended. If temporary, then the jury must proceed to determine the extent and duration of partial incapacity, if any. Human experience indicates that where there is temporary total incapacity resulting from trauma there will usually follow a period of partial disability. But the jury might find to the contrary. Be that as it may, a plea of ‘partial incapacity’ is not a defense to ‘permanent total incapacity.’ The defense to that issue is that it is ‘temporary’. * * * ”

In the Boucher case, the Court held that where the claimant’s sole theory of recovery was for total incapacity, issues relating to partial incapacity were inferential rebuttal issues which were prohibited by Rule 277, Tex.R.Civ.P. Thus, we conclude that the issues which remain unanswered should not have been submitted in this case. See Texas Employers Insurance Association v. Loesch, 538 S.W.2d 435 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.).

But since they were submitted without objection by either party, was the verdict incomplete when they were left unanswered and timely objection was made? We think not. The Court, in the Charge, instructed the jury as follows:

“You are instructed that a person cannot be in law totally incapacitated and also partially incapacitated at the same time. If a person is totally incapacitated to labor, he cannot be partially incapacitated to any extent for any period of time. Stating it another way — meaning the same thing — if a person is partially incapacitated to any extent for any period of time, he cannot be totally incapacitated during the same period of time.”

In concluding his Charge to the Jury, the trial Court said:

“When you have answered all of the foregoing special issues which you are required to answer under the instructions of the Judge, and your foreman has placed your answers in the spaces provided and signed the verdict as foreman, you will advise the bailiff at the door of the jury room that you have reached a verdict, and then you will return into Court with your verdict.”

Thus, it would appear that having decided that the claimant sustained total and permanent incapacity, and having been instructed that if a person was totally incapacitated, he could not be partially incapacitated at the same time, the jury logically concluded that they had answered “all of the foregoing special issues which you are required to answer under the instructions of the Judge,” and, following the last instruction given to them, had the foreman sign and return their verdict.

There are no conflicts in the jury findings, there was no indication of a hung jury on the unanswered issues, and we believe the verdict, as returned by the jury, is in accordance with the instructions given by the trial Court. Herrera v. Balmorhea Feeders, Inc., 539 S.W.2d 84 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.). The Appellant’s point of error is overruled.

The judgment of the trial Court is affirmed.

PRESLAR, Chief Justice,

dissenting.

The writer agrees with the result reached in this case, but is unable to agree with a reason for it as set out in the opening statement of the majority opinion that “Under the decision in Select Insurance Company v. Boucher, 561 S.W.2d 474 (Tex.1978), a compensation carrier is not entitled to submit special issues as to partial incapacity as inferential rebuttal issues * That statement should not form a basis for deciding this case, nor should it stand as a blanket proposition of law applicable to all cases. I do not read Select as abolishing the issues of partial incapacity in every case in which there are issues of total incapacity. I read Select as being limited to the facts and situation of that case. The Court so states:

“ * * * Under the circumstances of the instant case, the issues relating to partial incapacity were inferential rebuttal issues which are prohibited by Rule 277. * * *” (Emphasis added)

At another point in its opinion, the Court was careful to note the • limitation of its holding when it said:

“We hold, under the posture of the instant case, that the defensive issue of partial incapacity is an inferential rebuttal issue * * (Emphasis added)

I would not decide this case on the basis that the partial disability issue should not have been submitted in the first place. It was not pled by the insurer, but it was apparently tried by consent, for the issue was submitted without objection. Aside from all the philosophical discussions of whether issues are “inferential rebuttal” or “defensive,” a trial is a search for the truth. If the truth is that the disability is partial, there should be a method of determining that, even though there is a claim of total incapacity. The all-or-nothing approach would be bad public policy — bad for the workman who is in fact partially disabled. Insurers should be encouraged to admit partial incapacity where it exists and thus plead it and get a determination of it by the jury. As noted by the majority, the Supreme Court has not overruled cases which held that “partial incapacity” is an affirmative defense to “total incapacity.” I do not read the Select case as a holding that the claimant can deprive the insurer of his defense that the disability is only partial by simply pleading for total disability. I would not apply the holding in Select to this case.

      . This instruction is clearly erroneous, but there was no objection to the Charge. The instruction should have told the jury that if a person is totally incapacitated to labor, he cannot be' partially incapacitated to any extent during the same period of time.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    John T. COMPTON, Appellant, v. Joseph POLONSKI, Appellee.
    No. 1319.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 24, 1978.

      Kirk L. James, Rankin & Kern, McAllen, for appellant.
    James Roby Clopton, McAllen, for appel-lee.
   OPINION

NYE, Chief Justice.

This is a suit brought by plaintiff, John T. Compton, to recover money due him under three “grove care” contracts for certain materials furnished and services rendered by Compton in caring for three orchards owned by defendant, Joseph Polonski. The defendant owner filed a cross action seeking recovery for money due him pursuant to a marketing agreement between the parties, and for breach of the “grove care” contract.

The dispute between the parties concerns three written “grove care” contracts and a written “marketing” contract whereby plaintiff agreed to care for defendant’s three orchards and to market the fruit production. Under the terms of the “grove care” contracts, the owner was obligated to pay the plaintiff a flat monthly rate per acre plus the cost of water used for irrigation, materials furnished (e. g., fertilizer, seed, etc.) and planting charges. Each contract contained the following provision relating to plaintiff’s obligation to provide “grove care”:

“The term ‘care’ as used herein obligates [the grove caretaker] to do, or cause to be done, all things pertaining to the care of the orchard which [the grove carekeeper] believes to be necessary and to the best interest of the orchard and of [the orchard owner], including all cultivation of the orchard, banking and removing the same from small trees where banking is deemed advisable, irrigation, spraying, fertilizing, etc. [The grove caretaker] is to use his own best judgment as to when the trees require irrigation, cultivation and spraying. Should major pruning be necessary, it will be done when ordered by owner and at an agreed price.
[The grove caretaker] shall be liable to [the owner], ... for any loss, injury or damage sustained on account of his acts or omissions, or that of his agents’ amounting to negligence. The grove caretaker [does not assume responsibility for loss, injury or damage] caused by acts of God or the negligence of other individuals than himself or his agents].” (Emphasis added).
******

Each month plaintiff submitted to defendant owner detailed invoices containing the dates and an itemized list of the work performed and the materials furnished on each orchard under each contract. These invoices listed all services rendered which were covered by the flat monthly charge as well as services for which there were additional charges. At the time the defendant terminated the last grove care contract, plaintiff’s invoices reflected an outstanding unpaid balance of $1,986.66.

The “marketing” contract between the parties pertained to the sale of fruit produced in defendant’s three orchards. Under the terms of this agreement, plaintiff was obligated to use his best efforts to market the fruit, to obtain “the best results for owner” and to “render an accurate accounting therefor”. For this service, plaintiff received three and one-half per cent of the gross sales receipts. The contract also provided that plaintiff would be liable to the defendant for lost or damaged fruit caused by plaintiff’s negligence. The record indicates that generally the proceeds from the sale of fruit were paid directly to the defendant owner. Occasionally, such proceeds were offset as a credit against the outstanding balance due under the “grove care” contracts.

Defendant’s cross action contained, among other things, allegations that the plaintiff had failed to render an accurate accounting of the sale of fruit from a certain lot that had been erroneously credited to another orchard owner during the year 1976. The remainder of defendant owner’s cross action concerned specific alleged negligent acts in performing the grove care services.

The plaintiff brings forward seventeen points of error attacking the trial court’s judgment relating to defendant’s cross action. The defendant did not appeal the trial court’s judgment in favor of the plaintiff. Plaintiff’s first three points of error complain of the jury’s answer to special issue No. 12. In point of error one, plaintiff contends that the trial court erred in entering judgment for the defendant because the answers to special issue No. 12 and special issue No. 3 are in irreconcilable conflict. Plaintiff attacks the jury’s findings in special issue No. 12 on legal (Point # 2) and factual (Point # 3) insufficiency points.

In response to special issues, the jury, in relevant part found for the plaintiff:. No. 3) that “plaintiff performed all conditions of the written agreement with Defendant”; No. 4) failed to find that all grove care performed by plaintiff was necessary and reasonable for the proper maintenance of the crop, and that all charges were reasonable; No. 5) that $1,412.50 was due and owing to plaintiff by defendant as the result of services plaintiff performed in compliance with the written agreement; No. 6) found that plaintiff employed a law firm and agreed to pay such firm a reasonable fee for this suit; and No. 7) found that $1,400.00 were reasonable attorney’s fees.

The jury also found for the defendant owner: Nos. 8 & 9) that plaintiff failed to plant all of the Ruby Red trees for which he billed defendant resulting in damages to defendant of $95.00; Nos. 10 & 11) found that plaintiff “failed to properly account for his Grove Care” to defendant which resulted in $500.00 damages to defendant; Nos. 12 & 13) found that plaintiff “failed to properly care for the groves” of defendant which damaged defendant by $1,400.00. (We question this later jury finding at the end of the opinion). In accordance with answers to these special issues, the trial court entered judgment in favor of plaintiff for $2,812.50 representing the balance due and owing under the contract plus attorney’s fees and judgment in favor of the defendant for $1,995.00 representing damages the jury found on defendant’s cross action for a net judgment for the plaintiff of $817.50.

In special issue No. 3 above, the jury found that the plaintiff performed all of the conditions of the written agreement with defendant. In special issue No. 12 the jury found that plaintiff failed to properly care for the groves of defendant. Plaintiff argues that the jury’s answer to special issue No. 3 necessarily encompasses a finding thát plaintiff did properly care for defendant’s fruit groves (the opposite of the jury’s finding in issue No. 12) because the contractual condition above quoted which defines the term “care”, in essence, obligated the plaintiff to perform the grove care services in a proper manner.

A conflicting jury finding will not prevent the rendition of judgment and require a mistrial unless the findings, considered separately and taken as true, would compel the rendition of different judgments. Texas & Pacific Railway Company v. Snider, 159 Tex. 380, 321 S.W.2d 280, 282 (1959). The apparent conflicting answers must be such that one answer would establish a cause of action or defense while the other would destroy it. The test is whether taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, a judgment should be entered in favor of the defendant. To apply this test, the courts consider each of the answers claimed to be in conflict, disregarding the alleged conflicting answer, but taking into consideration all the rest of the verdict, and if, so considered, one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 991 (1949); Missouri Pacific Railroad Company v. Tide LPG, Inc., 462 S.W.2d 106, 109 (Tex.Civ.App. — Corpus Christi 1970, writ ref’d n.r.e.).

The major difficulty presented in this case is the vague and confusing form in which the special issues were submitted to the jury. Although some objections to the special issues were submitted to the trial court, these objections have not been raised on appeal and are therefore waived. Rule 279, Texas Rules of Civil Procedure.

Plaintiff’s unsworn petition, in effect, stated a cause of action on an unsworn open account for money due under a written service contract. The portion of defendant’s cross action relating to special issue No. 12 alleged in effect that plaintiff, in contravention of the “grove care” contract, had performed specified services in a negligent manner thereby causing compen-sable damage to his orchard. The “grove care” contract, upon which plaintiff relied to support his cause of action, provided that plaintiff would not be liable to defendant for any damage defendant sustained on account of plaintiff’s acts or omissions unless such acts or omissions amounted to negligence. The alleged negligent conduct of plaintiff is a proper subject of defendant’s cross action because it is connected with plaintiff’s suit for the balance due under the “grove care” contract. Rule 97(g), Texas Rules of Civil Procedure; cf. Yelton v. Bird Lime & Cement Co., 161 S.W.2d 353 (Tex.Civ.App.—San Antonio 1942, err. ref’d w.o.m.). Plaintiff’s cause of action, to which special issue No. 3 is pertinent, and defendant’s cross action, to which special issue No. 12 is pertinent are not inherently mutually exclusive. It is conceivable that in a proper case supported by sufficient pleadings, evidence and special issues, that a judgment could properly be rendered in favor of a plaintiff seeking recovery for the balance due under a written contract for services performed and materials supplied and, at the same time, a judgment entered in favor of a defendant who has filed a cross action seeking recovery for damages caused by the negligent performance of such services rendered. But this did not happen here.

It is apparent, considering the definition of the term “care” contained in the written “grove care” contract which was admitted into evidence and properly before the jury, that the effect of the jury’s answer to special issue No. 3 was that the plaintiff had performed all of the grove care services which he believed, in his own best judgment, to be necessary and in the best interest of the orchard and its owner. As a general rule, a party to a contract owes a common-law duty to perform with care, skill, reasonable expedience and faithfulness, the thing agreed to be done, and a negligent failure to observe such duty is a “tort”, as well as a breach of the contract. Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508, 510 (1947).

Here, the parties agreed that the plaintiff would not be liable for damages caused by his grove care service unless his acts or omissions constituted negligent conduct. The jury, in answering special issue No. 3, found that the plaintiff had performed all of the conditions of his grove care contract including that of providing grove care which was in the best interest of the orchard and of its owner. In considering the charge as a whole, the jury’s finding in special issue no. 3 establishes plaintiff’s right to seek recovery for the invoiced sums under the “grove care” contract because he provided materials and services for grove care as specified in the contract. This finding also negates actionable negligence on the part of the plaintiff and, when considered alone, would warrant a judgment for recovery of the amounts due under the contract in favor of plaintiff.

In special issue No. 12, the jury found that the plaintiff “failed to properly care for the groves” of the defendant. The jury, in effect, found that the plaintiff failed to perform all of the conditions of the “grove care” contract because he failed to provide proper grove care. This finding, therefore, conflicts with the jury’s answer to special issue No. 3 and tends to defeat plaintiff’s right to recover under the contract. In addition, the jury’s answer to special issue No. 12 tends to establish that the defendant provided negligent grove care. It should be noted that special issue No. 12 does not ask the jury to find whether the defendant committed the specific acts or omissions alleged in defendant’s cross action or whether these acts or omissions, if committed, constituted negligence on the part of the plaintiff in providing grove care. The jury, however, found a general course of action or omissions by the plaintiff which failed to comply with the standard of “proper” grove care. Keeping in mind that omitted issues will be deemed to be found in support of the trial court’s judgment, if they are supported by any evidence, the jury’s answer to special issue No. 12, when considered as such, would warrant a judgment in favor of defendant for damages resulting from plaintiff’s negligent grove care.

We conclude therefore that the jury’s answers to special issue No. 3 and special issue No. 12 are in fatal conflict. As they are worded, these special issues concern the same subject matter and are stated in such general terms that they cannot be reconciled under the familiar general rule that specific findings control over general or ambiguous findings. Barclay v. C. C. Pitts Sand and Gravel Company, 387 S.W.2d 644, 647 (Tex.Sup.1965); Sproles v. Rosen, 126 Tex. 51, 84 S.W.2d 1001, 1003 (Tex.Comm’n App.1935); Wilkinson v. Southern Farm Supply Association, 409 S.W.2d 435, 439 (Tex.Civ.App.—Amarillo 1966, writ ref’d n.r.e.); First Nat. Bank of McGregor v. Collins, 266 S.W.2d 506, 515 (Tex.Civ.App.—Austin 1954, writ ref’d n.r. e.).

Defendant’s only response to plaintiff’s irreconcilable conflict point is that plaintiff waived this complaint by failing to urge it in his motion for new trial. This is not so. Contrary to defendant’s argument, plaintiff’s motion for new trial contained two assignments of error (Nos. 37 & 38) complaining of a conflict between the jury’s answers to special issue No. 3 and special issue No. 12. This case was tried prior to the effective date of the amendment to Rule 324, Texas Rules of Civil Procedure, pertaining to motions for new trial. Pursuant to this rule, with certain exceptions not applicable to this case, plaintiff was required to assign as error in his motion for new trial, the entry of judgment on conflicting jury findings. St. Louis Southwestern Railway Company v. Duke, 424 S.W.2d 896, 898 (Tex.Sup.1967); St. Paul Fire & Marine Insurance Company v. Murphree, 163 Tex. 534, 357 S.W.2d 744 (Tex.Sup.1962). This the plaintiff did. Defendant does not attack the sufficiency of the assignments of error in plaintiff’s motion for new trial and we find they are sufficient to direct the trial court’s attention to the plaintiff’s complaint.

The defendant does not present a counterpoint to show how these answers can be reasonably reconciled.

As a further reason to reverse the judgment of the trial court, the plaintiff presents legal and factual sufficiency points directed toward the jury’s answer to special issue No. 12. A no evidence point of error is a question of law, and in considering the question, it is the duty of this Court to first view the evidence in its most favorable light, considering only the evidence and reasonable inferences drawn therefrom in support of the judgment and to disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Transport Insurance Company v. Mabra, 487 S.W.2d 704 (Tex.Sup.1972). In deciding the factual sufficiency point, this Court is required to consider all of the evidence 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. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We have carefully reviewed all of the evidence in accordance with the above stated rules. We find that the jury’s answer to special issue No. 12 is so against the great weight and preponderance of the evidence so as to be manifestly unjust. Appellant’s first and third points are sustained. The no evidence point (#2) is overruled.

The damage issue, special issue No. 13, was undoubtedly intended to be conditionally submitted upon a favorable answer to special issue No. 12. However, this special issue was conditionally submitted upon a favorable answer to special issue No. 6. In special issue No. 6, the jury found that plaintiff had hired attorneys to prosecute his action against defendant and in special issue No. 7, the jury found reasonable attorneys’ fees to be $1,400.00. It is evident to us that this particular form of submission caused the jury to find $1,400.00 damages in answer to special issue No. 13 the same amount as found to be reasonable attorney’s fees. The court received and entered judgment on the verdict without noticing this error. Neither party noticed the error until it was time to submit briefs for this appeal. Plaintiff’s irreconcilable conflict and factual insufficiency points of error warrant our reversal and remand of this case for a new trial. Since the causes of action of both parties involve such interrelated issues, we believe the causes of action cannot be severed without unfairness to the parties and that the entire case must be reversed and remanded in the interest of justice. Rule 434, Texas Rules of Civil Procedure, and see Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.Sup.1966).

It is not necessary for us to consider the remaining points of error because of the disposition we make of this case.

The judgment of the trial court is REVERSED, and the cause is REMANDED for a new trial. The costs are adjudged one-half to appellant and one-half to appel-lee.

REVERSED AND REMANDED.

      . Special issue No. 13 provided as follows: “If your answer to Special Issue No. 6 is ‘yes’ what damages do you find Joseph Polonski suffered, if any?
      We, the jury, answer: $1,400.00.”


author: YOUNG, Justice.

text:
    Martin C. HASKETT, Justice of the Peace Precinct No. 6, San Patricio County, Texas, Appellant, v. Ray HARRIS, Individually, and as County Auditor of San Patricio County, Texas, Appellee.
    No. 1267.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 24, 1978.

      Martin C. Haskett, Aransas Pass, for appellant.
    William G. Burnett, Sinton, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from an order of the District Court of San Patricio County temporarily enjoining Martin C. Haskett, Justice of the Peace of Precinct No. 6, San Patricio County, and appellant herein, from proceeding with a contempt hearing against Ray Harris, Individually and as County Auditor of San Patricio County.

On May 11, 1977, Judge Haskett, held an examining trial in case No. 967, styled State of Texas v. Charles Alleman. Under Tex. Code Crim.Proc.Ann. art. 26.04 (1966) Judge Haskett appointed Mr. James Whitten, an attorney, to represent the indigent Alle-man. Appellee Harris was neither a party to this proceeding nor present in appellant’s court during the proceeding.

After the examining trial appellant filled out the following form (on which subsequent action by Harris and the Commissioners’ Court is shown) requesting that Mr. Whitten be paid one hundred dollars ($100.00) under Article 26.05:

There is no indication in the record that Whitten filed any sort of motion or pleading requesting that Judge Haskett order the County Auditor to pay Whitten $100.00.

On June 13, 1977, appellee Harris approved payment of the requested $100.00, but the Commissioners’ Court of San Patri-cio County refused the $100.00 requested and approved only a $50.00 payment.

The evidence shows that Judge Haskett considered the request for payment to be an order of the court, and on June 17, 1977, Judge Haskett issued a summons to Harris directing him to appear before appellant and according to the summons: “show cause why he should not be held in contempt of court for failure to obey a lawful order of this court.” The contempt hearing was set for July 6, 1977.

In the meantime, on June 27, 1977, appel-lee Harris filed in the District Court of San Patricio County an application for a temporary injunction enjoining Judge Haskett from proceeding with the contempt hearing. The cause was tried to the court on July 5,1977, and the court granted a temporary injunction directing that Judge Hask-ett refrain from proceeding with the contempt hearing. Judge Haskett appeals.

Appellant Haskett by his only point alleges that the trial court erred in enjoining a judicial proceeding of a Justice of the Peace when the appellee Harris had the adequate legal remedy of presenting his defenses to the contempt proceedings at the contempt hearing itself. Appellee responds that appellant Haskett was without jurisdiction to proceed with the contempt hearing because: 1) Tex.Code Crim.Proc.Ann. art. 26.05 (1966) does not give a Justice of the Peace the power to order a County Auditor to make payment to an appointed attorney and that, consequently, Judge Haskett could not have acquired jurisdiction over Harris in a contempt proceeding for failure to obey an order Judge Haskett had no power to enter; 2) the show cause order was fatally defective for indefiniteness; and 3) appellee, if adjudged in contempt, could not purge himself of the contempt because he was without authority to make such payment unless the Commissioner’s Court also agreed, citing Smith v. McCoy, 533 S.W.2d 457 (Tex.Civ.App.—Dallas 1976, writ dism’d). Appellee contends that the Justice Court’s lack of jurisdiction gives the District Court jurisdiction to enjoin the contempt proceeding citing Lyle v. Collier, 62 S.W.2d 1112 (Tex.Civ.App.—Amarillo 1933, no writ). We have no doubt that under the facts as presented, appellant Haskett would be without jurisdiction to hold Harris in contempt of the purported order which is impossible for Harris to perform. Ex Parte Dustman, 538 S.W.2d 409 (Tex.Sup.1976); Smith v. McCoy, supra. Moreover, we think appellee’s other jurisdictional objections raise a serious doubt whether Judge Haskett has power to hold Harris in contempt. Even so, this conclusion does not dispose of this case.

The jurisdiction of the District Court to issue the temporary injunction was not challenged in appellant’s pleadings in the trial court nor was the issue raised on appeal. However, the question of want of jurisdiction of the subject matter may be raised on a reviewing court’s own motion. Southwestern Bell Tel. Co. v. City of Kountze, 543 S.W.2d 871 (Tex.Civ.App.— Beaumont 1976, no writ). Lack of jurisdiction in the District Court is fundamental error and is subject to review for the first time on appeal. Texas Employment Commission v. International Union of Elec. Radio and Machine Workers, 163 Tex. 135, 352 S.W.2d 252 (1962). Therefore we deem it necessary to review the District Court’s jurisdiction to enjoin Judge Haskett.

The jurisdiction of District Courts to issue certain writs is spelled out in Tex.Const. art. V, $ 8 which provides in pertinent part:

“ . and said Court and the judges thereof shall have power to issue writs of habeas corpus, mandamus, injunction, and certiorari and all writs necessary to enforce their jurisdiction.”

Tex.Rev.Civ.Stat.Ann. art. 1914 (1964) further provides:

“Judges of the district courts may either in term time or in vacation, grant writs of mandamus, injunction, sequestration, attachment, garnishment, certiorari, and supersedeas, and all other writs necessary for the enforcement of the jurisdiction of the court.”

See Winfrey v. Chandler, 159 Tex. 220, 318 S.W.2d 59, 61 (1958). At first blush it might appear that the District Court in our case possessed jurisdiction to enter its “Temporary Injunction”. We find no such jurisdiction though.

In substance, the writ which the trial court entered in the instant case was a writ of prohibition. “The vital distinction [between prohibition and injunction] is that injunction operates only upon individuals when used to require a desistance from prosecuting a suit or proceeding, while prohibition runs against the court to require cessation from the exercise of jurisdiction.” (Emphasis supplied.) Ferguson v. Ferguson, 98 S.W.2d 847, 849 (Tex.Civ.App.—Eastland 1936, no writ); Seele v. State, 1 Tex.Civ.App. 495, 20 S.W. 946 (1892, no writ). See City of Dallas v. Dixon, 365 S.W.2d 919, 922 (Tex.Sup.1963); County of Anderson v. Kennedy, 58 Tex. 616, 622 (1883); 6 Lowe, Texas Practice, Remedies § 452 n.9-12 (1973). Because prohibition is not one of the enumerated writs mentioned in either Article 5 § 8 of the Texas Constitution or Article 1914 of the Revised Civil Statutes, the issue then becomes whether the writ of prohibition was necessary to enforce the jurisdiction of the District Court. See Hebert v. Probate Court No. One of Harris County, 466 S.W.2d 849 (Tex. Civ.App. — Houston [14th Dist.] 1971, no writ).

We find that the jurisdiction of the District Court had not been invoked prior to the suit for the injunction. For example, no suit had been filed in the District Court relevant to any of the issues herein. In addition, while a District Court has general supervisory control over the County Commissioner’s Court under Article V, § 8 of the Texas Constitution and Article 1908 of the Revised Civil Statutes, this potential jurisdiction had not been invoked in the present case. “A court which is authorized to issue extraordinary writs to enforce its jurisdiction may not exercise that power in aid of its potential jurisdiction. It is only after that jurisdiction has been invoked in the manner prescribed by law and has thus become active that the court may act to enforce or protect the same.” Winfrey v. Chandler, supra at 61.

Thus, we find no jurisdiction was conferred either by constitution or by statute giving the District Court the power to issue a writ of prohibition in the instant case. Our conclusion is supported by Seele v. State, supra. In Seeie, a District Court prohibited further proceedings in a Justice of the Peace action because the Justice Court was without jurisdiction to grant the relief requested. In overturning the writ of prohibition, the Court of Civil Appeals construed constitutional and statutory provisions which were closely similar to those mentioned above, and stated that District Courts have no general supervisory control over Justice of the Peace Courts as was given by the Constitutions of 1845 and 1869. The omission of these former provisions from the Constitution is equivalent to a legislative declaration that such jurisdiction shall not exist.

Appellee Harris contends, however, that Lyle v. Collier, supra, holds that a District Court may enjoin a Justice Court from proceeding in a case in which the Justice Court lacks jurisdiction. This apparent conflict with the holding in Seeie, supra, was addressed by the Supreme Court in Winfrey v. Chandler, supra, wherein the Court there stated:

“No question as to the jurisdiction of the district court seems to have been raised in Lyle v. Collier, . . . and we do not regard that decision as contrary to the holding of the Seeie case.”

See also 12 Texas L.Rev. 512 (1934), which discusses the Court’s use of injunction rather than prohibition in Lyle v. Collier. For the above mentioned reasons we find the District Court of San Patricio County was without jurisdiction to issue the prohibition herein.

There is a second reason, though, which requires us to reverse this cause. The writ of prohibition is not available where there are other adequate legal remedies. Stone v. Kuteman, 150 S.W.2d 107 (Tex.Civ.App.—Amarillo 1941, no writ). See Prince v. Miller, 123 Tex. 118, 69 S.W.2d 52, 55 (Tex.Comm’n App.1934, opinion adopted); Smith v. Grievance Committee, St. Bar of Tex. For Dist. 14-A, 475 S.W.2d 396, 399 (Tex.Civ.App. — Corpus Christi 1972, no writ). Appellee Harris has the legal remedy of presenting his jurisdictional objections during the hearing on the show cause order. Story v. Story, 142 Tex. 212, 176 S.W.2d 925 (1944); Smith v. Ryan, 20 Tex. 661 (1858). This Court must presume that Judge Haskett will not exceed his jurisdiction; that he will rule properly as to his jurisdiction. Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 827 (1960); Shepperd v. Parr, 287 S.W.2d 204, 207 (Tex.Civ.App.—Waco 1956, writ ref’d n. r. e.); Stone v. Kuteman, supra at 110. Accordingly, then, the writ of prohibition, called injunction by the parties and the trial court, must be set aside. In the unforseen event Judge Haskett should rule erroneously, appellee has the remedy of habeas corpus for challenging the jurisdiction of the Justice Court, or possibly a writ of mandamus. Deramus v. Thornton, supra. Appellant’s point of error is sustained.

The judgment of the trial court is reversed and judgment is here rendered that the injunction be dissolved.


author: KLINGEMAN, Justice.

text:
    TRANSPORTATION INSURANCE COMPANY, Appellant, v. Joe J. MAKSYN, Appellee.
    No. 15944.
    Court of Civil Appeals of Texas, San Antonio.
    May 24, 1978.
    Rehearing Denied July 21, 1978.

      Melvin A. Krenek, Beckmann, Stanard & Olson, Inc., San Antonio, for appellant.
    Frank Herrera, Jr., Hardberger, Branton & Herrera, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a Workmen’s Compensation case. Transportation Insurance Company, appellant here and plaintiff below, filed this suit to set aside an award granted to Joe J. Maksyn, defendant below and appellee here, by the Industrial Accident Board. Defendant filed an answer and counterclaim seeking to recover workmen’s compensation benefits from the plaintiff on the basis of an occupational disease sustained in the course of his employment. Defendant claimed to have suffered an anxiety depression caused by the pressures of his employment which culminated on September 4, 1974, and asserted that this disease had caused numbness of his hands and feet, high blood pressure, and vertigo. Trial was to a jury. The jury, in answer to the special issues submitted, found that (1) Defendant has or had an occupational disease as a result of repetitious physical traumatic activities extending over a period of'time; (2) that the occupational disease sustained by defendant arose out of and in the course of his employment; (3) that the occupational disease was a producing cause of his total incapacity; that the beginning date of total incapacity was September 4, 1974; and (4) that the duration of the total incapacity was permanent. Judgment was entered on the jury’s verdict for 401 weekly payments of $70.00 each for total permanent incapacity, attorneys’ fees, and interest. Transportation Insurance Company will be hereinafter referred to as plaintiff, and Joe J. Maksyn as defendant.

By five points of error, plaintiff asserts that the court erred in rendering judgment for the defendant because (1) there was no evidence of any physical activities which would produce an occupational disease; (2) that there was insufficient evidence to support the jury’s finding that defendant suffered “repetitious physical traumatic activities”; (3) that there is no evidence that the beginning date of total incapacity began on September 4, 1974, and was therefore not compensable; (4) that the overwhelming weight and preponderance of the evidence showed that the defendant’s disability, if any, was caused by his termination on October 28,1974, and was therefore not compen-sable; and (5) that the overwhelming weight and preponderance of the evidence shows that defendant’s anxiety depression was a non-compensable ordinary disease of life.

Defendant, at time of suit, was 62 years old. He began working with the Express-News Publishing Company in 1932 when he was 17 years of age, as a copy boy. He was later promoted to assistant merchandise manager, to display advertising salesman, to production manager, to administrative executive, and finally to advertising service manager, a position that he held for approximately 28 years.

Defendant testified that he never worked less than 55 hours a week and frequently worked for 65 hours a week. His work schedule ran from Monday through Saturday and he generally worked some time on Sunday. He stated that at night he would receive phone calls from the office and many times had to return to work at night and that he frequently took work home.

Defendant testified that during the week before September 4, 1974, he worked 87½ hours, and that on the evening of September 4, 1974, he started feeling bad, that he felt pressure in his head and felt like he was going to black out. He then went home and went to bed and the next morning when he tried to get up, he felt weak and dizzy and later that day he went to his family physician. He thereafter returned to his office and advised his superiors of his illness and requested that he be given vacation time, which was granted. He remained on vacation for three weeks. On the fourth week, he began working approximately three to four hours a day. The following week, he worked approximately four to five hours a day, and the following week approximately seven to eight hours a day. On October 28, 1974, he was retired by his employer. At that time, he was sixty years of age.

In 1971, the Texas Legislature amended the section of the Workmen’s Compensation Act relating to the definition of “injury” and “occupational diseases,” which new provision is as follows:

Sec. 20. Wherever the terms “Injury” or “Personal Injury” are used in the Workmen’s Compensation Laws of this State, such terms shall be construed to mean damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom. The term “Injury” and “Personal Injury” shall also be construed to mean and include “Occupational Diseases,” as hereinafter defined. Whenever the term “Occupational Disease” is used in the Workmen’s Compensation Laws of this State, such terms shall be construed to mean any disease arising out of and in the course of employment which causes damage or harm to the physical structure of the body and such other diseases or infections as naturally result therefrom. An “Occupational Disease” shall also include damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment; provided, that the date of the cumulative injury shall be the date disability was caused thereby. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be com-pensable, except where such diseases follow as an incident to an “Occupational Disease” or “Injury” as defined in this section. Effective Aug. 30, 1971. Tex. Rev.Civ.Stat.Ann. art. 8306, § 20 (Supp. 1978).

In its first two points of error, plaintiff asserts (1) that the Legislature did not intend that the phrase “repetitious physical traumatic activities” should include mentally traumatic activities and that this court should not make such construction; that since the defendant only proved the existence of mentally traumatic activities there was no evidence to support the jury’s finding that the defendant suffered repetitious physical traumatic activities; (2) that the court erred in entering judgment for defendant because there is insufficient evidence to support the jury’s finding that the defendant suffered repetitious physical traumatic activities and that the evidence presented was factually insufficient to establish a causal connection between the alleged physical activities and defendant’s occupational disease.

Appellee asserts that the trial court did not err in entering a judgment because (a) there was legally and factually sufficient evidence to support the jury’s finding that appellee had an occupational disease as a result of repetitious physical traumatic activities extending over a period of time; and (b) there was legally and factually sufficient evidence to support the jury’s finding that appellee suffered repetitious physical traumatic activities.

Plaintiff argues vigorously that it was not the intent of the Legislature to include mental traumatic activities and discusses in some detail the legislative background in connection with such amendment to Section 20, and points out that the House version of the amendment omitted the word “mental” from that of the Senate version. However, it is noteworthy that the amendment as adopted provides in Section 5, as follows:

It is the express intent of the Legislature in enacting this Act that nothing contained in this Act shall ever be deemed or considered to limit or expand recovery in cases of mental trauma accompanied by physical trauma. Tex.Rev.Civ.Stat.Ann. art. 8306, § 20 (Supp.1978).

A law note in Houston Law Review supports defendant’s position, wherein it is stated:

In the past, Texas compensated mental injury resulting from physical trauma, physical injury resulting from mental trauma, and purely neurotic injury resulting from psychological stress. Section 5 of the Amendment guarantees this right of recovery to the extent that recovery is now possible. Most jurisdictions are in accord with the present Texas Law in allowing compensation for mental disease and injury. Medical science recognizes that mental disorders can arise out of the course and scope of employment. Mental disease or injury resulting from a work-related stimulus can cause a loss of wage-earning capacity by a diminished ability to function properly on the job. It belabors the question of compensability to ask if harm is done to the physical structure of the body when the impaired mental function is caused by factors which are part of the employee’s work environment. Note, Texas Workmen’s Compensation— Changes in Occupational Disease, 9 Houston Law. Rev. 597, 600-601 (1972).

One of the strongest cases supporting defendant’s contention is a case by our Supreme Court many years before the adoption of the Amendment here involved, wherein a workman was allowed to recover for a physical injury arising after the worker saw a fellow worker fall and plunge to his death. In Bailey v. American General Insurance Company, 154 Tex. 430, 279 S.W.2d 315 (1955), the claimant and another workman were on a scaffold when one end gave way. The worker thought he was going to get killed, but he was caught in a cable and managed to jump to another building. After this experience, he tried to resume his employment, and although he was considered one of the better structural steelworkers, he could not continue. He had periods of “blanking out”; once, he literally froze, undergoing complete paralysis when trying to work at a height; he had trouble sleeping, and experienced violent nightmares. His blood pressure was affected; he was hypersensitive to pain; he had a tremor of the eyelids and his reflexes were underactive. The Supreme Court stated that the question was whether the claimant had suffered damage or harm to the physical structure of his body. The Court, in concluding that the claimant’s psychic injury was compensable, stated:

The phrase ‘physical structure of the body’, as it is used in the statute, must refer to the entire body, not simply to the skeletal structure or to the circulatory system or to the digestive system. It refers to the whole, to the complex of perfectly integrated and interdependent bones, tissues and organs which function together by means of electrical, chemical and mechanical processes in a living, breathing, functioning individual. To determine what is meant by ‘physical structure of the body’, the structure should be considered that of a living person — not as a static, inanimate thing.

Plaintiff attempts to distinguish Bailey by its contention that there is a distinction between an injury produced by a single event and one produced by a slow buildup of stressful activities and argues that in the first situation there is little chance of a fraudulent or a frivolous claim. We see very little justification for a holding that a claimant can recover for a neurosis occasioned by one traumatic experience, but cannot recover for a similar neurosis caused by a number of such traumatic experiences. The 1971 Amendment is generally regarded as an attempt to broaden and liberalize the Act by redefining the term “injury” and “occupational disease.” It has been held that under the amended statute it is no longer necessary to allege and prove either an event traceable to a definite time, place or cause, or a listed compensable occupational disease. Charter Oak Fire Insurance Company v. Hollis, 511 S.W.2d 583, 584 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.).

In Gloor v. United States Fire Insurance Company, 457 S.W.2d 925 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.), the plaintiff was employed as a proof setter and alleges that as a result of an excessive physical and mental stress and strain resulting from her work she sustained a nervous breakdown, resulting in her total and permanent incapacity to retain employment. The trial court granted a summary judgment for the insurance carrier on the basis that such allegation could not be an accidental injury as defined in the Act. The Beaumont Court of Civil Appeals reversed, holding that this was a matter of proof on the part of the plaintiff and was for the jury to determine.

Plaintiff argues that to permit recovery by defendant would open a “Pandora’s Box” and employers would be subject to fraudulent and frivolous claims. This same contention has been made in the past to numerous types of negligence actions where recovery is now allowed, and we do not consider such argument as controlling, as a claim must be supported by sufficient proof to convince the trier of the facts.

We have found no Texas cases holding that recovery will never be permitted for mental injury or mental disease, and, as we construe the applicable cases, the court seems to be saying not that there can never be a recovery for a mental injury or mental illness, but that the claimant must produce sufficient probative evidence to convince the jury.

There is a conflict of authorities in out-of-state jurisdictions, with some out-of-state jurisdictions holding that a disabling mental condition brought about by a gradual buildup of emotional stress over a period of time and not by a one exceptional injury causing event, is not compensable unless accompanied by physical force or exertion. See Ayer v. Industrial Commission, 23 Ariz. App. 163, 531 P.2d 208 (1975). In Messex v. Georgia-Pacific Corporation, 293 So.2d 615 (La.App.1974, writ ref’d), the court said:

When a compensation claim is predicated upon traumatic neurosis or conversion reaction, the court must proceed with utmost caution and exercise extreme care in view of the nebulous characteristics of such a condition. Id. at 617.

Other out-of-state jurisdictions have reached a contrary result. In Hoage v. Royal Indemnity Co., 67 App.D.C. 142, 90 F.2d 387 (1937) cert. denied, 302 U.S. 736, 778, 58 S.Ct. 122, 82 L.Ed. 569 (1937), claimant was an insurance claim adjuster whose work load gradually increased. He worked long hours in an effort to complete his work and finally collapsed at his desk. The court said, “We think that the testimony in the record fully considered tends to show that Mr. Rennie by reason of mental strain, worry, and long and excessive hours of labor suffered a collapse which resulted in his total disability as found by the Deputy Commissioner. We think this collapse constituted an accidental injury within the purview of the statute. His case is comparable to that of a manual laborer whose heart collapses as a result of a long continued physical strain or overwork resulting from excessive exertion.” See also Turner v. Southern California Edison Co., 42 Cal. App.3d 1036, 117 Cal.Rptr. 358 (1974), where the crucial issue was whether the disability of an employee was occasioned as a result of an injury arising out of employment. The Industrial Accident Board denied the widow her death benefits. The court, in vacating the Board’s decision, stated: “Simply stated, Turner was a casualty of industry. He devoted his entire adult life to Edison’s service. The long hours, the exasperations and frustrations, the pressures, strains and stresses experienced over the years resulted in hypertension which, in turn, caused the rupture of the .aneurysm and his death.” See also Goodwin v. New York State Workmen’s Compensation Board, 20 A.D.2d 951, 249 N.Y.S.2d 63 (Sup.Ct.App.Div.1964), aff’d, 15 N.Y.2d 508, 254 N.Y.S.2d 114, 202 N.E.2d 560 (N.Y.1964); Major v. New York Court of Claims, 31 A.D.2d 993, 297 N.Y.S.2d 768 (1969); Insurance Department of Mississippi v. Dinsmore, 233 Miss. 569, 102 So.2d 691, 694, aff’d on rehearing, 233 Miss. 569, 104 So.2d 296 (1958).

In Dinsmore, the court said:

It seems unthinkable that, if hypertension may be aggravated either by physical or mental and emotional exertion, courts should be willing to accept the physical as causative, but reject, as not accidental, a disability, proximately resulting from mental and emotional exertion.

Plaintiff’s Points of Error, Nos. 1 and 2, are overruled.

Plaintiff, in its third and fourth points of error, asserts that (a) there is no evidence that defendant’s disability began on September 4, 1974, and therefore it was not compensable; (b) the overwhelming weight and preponderance of the evidence shows that defendant’s disability was caused by his termination on October 28, 1974, rather than September 4, 1974.

Defendant testified that in the week before September 4, 1974, one of his fellow employees in the Diagram Department was missing, causing him to do extra work, and that he was also short an employee in the Service Department; that such week was a very heavy week; that during such week he worked 87½ hours and that during three days of such week he did not go to lunch or to dinner. He stated that on September 3, 1974, he was tired; that on September 4, he did not feel right and felt like he was going to black out; that he had to rest at his desk; that he staggered to his car, and was barely able to drive home. He stated that when he awakened the next morning he felt exhausted and drained and that at 10:30 he called his office and told them that he was going to the doctor; that he went to his doctor who diagnosed his condition as hypertension; that he tried to work during such week but could not and wound up taking a three weeks’ vacation; that the 87-hour week was the straw that broke the camel’s back; that his family physician, Dr. Weatherford, stated that he had physical, mental and nervous exhaustion, and high blood pressure. He stated that when he was asked to retire about the end of October, the suggestion was like a knife in his stomach and that when he had to leave it was like the roof collapsed.

An employee of plaintiff who was in advertising, testified that defendant was terminated because of his poor work habits which had persisted for years.

Dr. E. W. Weatherford, defendant’s family physician, testified that defendant had attacks of an anxiety depression since 1947; but that the first sign of high blood pressure was on September 5, 1974; that defendant had been working long hours under mental strain and that when he woke up in the morning it was with right hand numbness, right toe tingling, a slight tension in his left chest; he was tense, nervous and had vertigo; that on that day his blood pressure was 180 over 110, and that was the first time he had exhibited high blood pressure.

There was legally and factually sufficient evidence to support the jury’s finding that the beginning date of total incapacity was on September 4, 1974, and such jury’s finding is not against the weight and preponderance of the evidence. Plaintiff’s Points of Error, Nos. 3 and 4, are overruled.

By its fifth point of error, plaintiff asserts that the trial court erred in rendering-judgment in favor of the defendant because the overwhelming weight and preponderance of the evidence establishes that the. “anxiety depression” suffered by defendant was a noncompensable “ordinary disease of life” under the Workmen’s Compensation Statute.

The last sentence of Section 20, as amended, provides that “ordinary diseases of life” to which the general public is exposed outside of the employment shall not be compensable, except where such diseases follow as an incident to an “occupational disease” or “injury” as defined in this section.

Plaintiff asserts that under the record the overwhelming weight of the evidence shows that defendant’s disease and its causative factor were neither inherent in his employment nor necessarily present in a greater degree than in employment in general.

This portion of Section 20 has been dealt with infrequently by Texas courts since its enactment and we have found no Texas cases which shed much light on the problem here involved. The only Texas case cited by plaintiff is Mueller v. Charter Oak Fire Insurance Company, 533 S.W.2d 123 (Tex.Civ.App.—Tyler 1976, writ ref’d, n. r. e.), wherein the court stated that this sentence “indicates legislative intent to require evidence of probative force of a causal connection between employment and occupational diseases.” One scholar defines compensable occupational diseases as “those diseases which are indigenous to the claimant’s work or present in an increased degree in that work as compared with employment generally.” 1A Larson, The Law of Workmen’s Compensation § 41.00 (1973).

While it is a close question, we hold that the record establishes that defendant was suffering from an occupational disease which was either indigenous in his work or present in an increased degree in that work as compared with employment generally, and was not an ordinary disease of life not covered under the provisions of Section 20, as amended. There is a definite causative connection between defendant’s anxiety depression and the cumulative strain of his work.

Plaintiff argues that the disability here involved results purely from mentally traumatic activities and as such is not com-pensable under the Workmen’s Compensation Act. The record here shows that the disability resulted from a combination of physical and mental activities including exceedingly long working hours, nerve racking working schedule, continuous pressure, strain, overwork, and physical exhaustion culminating in high blood pressure, numbness in some parts of the body, dizziness, vertigo and, ultimately, disability to work. There was ample evidence of a combination of physical and mental activities that produced the occupational disease here involved, and it is clear that the claimant has suffered damage or harm to the physical structure of his body. Section 20 of the Workmen’s Compensation Act, as amended, provided that the term “injury” or “personal injury” shall also be construed to mean and include “occupational diseases” as therein defined; that the term “occupational disease” shall be construed to mean any disease arising out of and in the course of employment which causes damage or harm to the physical structure of the body; and shall also include damage or harm to the physical structure of the body occurring as a result of repetitious physical traumatic activities extending over a period of time. We have concluded that the disability here involved comes within the statutory definitions hereinabove outlined, and is compen-sable.

In our opinion, the injury to defendant’s physical structure in this case is as compen-sable as that in Bailey v. American General Insurance Company, supra, and that due to mental and physical strain, worry, and physical exertion resulting from overwork, defendant suffered a collapse which resulted in his total incapacity.

All of plaintiff’s points of error are overruled. The judgment of the trial court is affirmed.

MURRAY, J., did not participate in the disposition of this appeal.


author: MURRAY, Justice.

text:
    Charles Kenneth CAMPBELL, Appellant, v. County of BEXAR et al., Appellees.
    No. 16003.
    Court of Civil Appeals of Texas, San Antonio.
    May 24, 1978.
    Rehearing Denied July 12, 1978.
    Earle Cobb, Jr., Cobb, Thurmond, Bain & Clark, San Antonio, for appellant.
    Bill M. White, Criminal Dist. Atty., Norris W. Yates, Asst. Criminal Dist. Atty., San Antonio, for appellees.
   MURRAY, Justice.

This suit was instituted by Charles Kenneth Campbell, appellant, against the County of Bexar, the County Judge, the County Commissioners, and the County Tax Assessor and Collector to enjoin appellees from making any. attempt to collect personal property taxes from appellant for the year 1976. Plaintiff alleges that Bexar County makes an attempt to place all income producing personal property on the tax rolls and the failure of Bexar County to assess household furnishings and appliances and individually owned automobiles and vehicles was the result of a plan, scheme or design by Bexar County, to omit such non-income producing property from taxation, and that this plan, scheme or design has caused plaintiff to sustain substantial injury.

On the trial of the case on the merits, the jury found favorably for plaintiff by answering the following questions affirmatively:

QUESTION NO. 1: Do you find from a preponderance of the evidence that the failure of Bexar County to assess certain personal property, to-wit: household furnishings and appliances and.individually owned automobiles and vehicles, for taxes for the year 1976 was the result of a plan, scheme or design by the taxing authorities to omit such property from taxation?
QUESTION NO. 2: Do you find from a preponderance of the evidence that the failure of Bexar County to assess certain personal property, to-wit: household furnishings and appliances and individually owned automobiles and vehicles, for the year 1976 has caused the plaintiff, Mr. Campbell, to sustain substantial injury?

The trial court overruled plaintiff’s motion for judgment, and entered judgment non obstante veredicto in favor of Bexar County on the basis that there was no evidence to support the findings of the jury.

Tex.Const. art. VIII § 1 declares that, “Taxation shall be equal and uniform. All property . . shall be taxed in proportion to its value . . . .” Tex.Rev. Civ.Stat.Ann., art. 7152 (1960) directs that every person shall list his property both real and personal for taxes. Among the 43 specific items of property the taxpayer is required by art. 7162 to list in rendering his property for taxation is Item No. 23, which reads as follows: “The value of household and kitchen furniture over and above the amount of two hundred and fifty dollars.” When the taxpayer, for any cause, fails to furnish the statement of property required of him by the foregoing statutes, arts. 7193 and 7204 make it the duty of the assessor of taxes to ascertain the amount and value thereof and to assess the same for taxes. Art. 7206 requires the Commissioners Court sitting as a Board of Equalization to inspect the tax roll prepared by the assessor and determine that all property thereon is rendered at a fair market value.

We must view the evidence in the most favorable light in support of the findings of the jury. The rules concerning the burden of the taxpayer in this type of suit have been set forth by the Supreme Court. The taxpayer must not only allege and prove that certain classes of personal property were omitted from the tax rolls and that such omission resulted in substantial injury to him in dollars, but he must also allege and prove that such omission was the result of a deliberate, arbitrary and fundamental erroneous scheme adopted and imposed by the tax officials of the taxing agency to permit the excluded classes of property to escape their fair share of the tax burden. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569 (1954); Swamp Irish, Inc. v. Snow, 501 S.W.2d 690 (Tex.Civ. App.—Corpus Christi 1973, no writ); City of Corpus Christi v. Arnold, 424 S.W.2d 492 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.); Tatton v. Aransas County, 359 S.W.2d 200 (Tex.Civ.App.—San Antonio 1962, no writ).

Mr. Ben Shaw, the present County Tax Assessor-Collector of Bexar County, took office on January 1,1977. He testified that he was unaware of any plan or scheme to omit any personal property from the tax rolls since he took office, and anyone wishing to assess their personal property could do so. He operates his office with approximately 180 employees, and in accordance with the directions contained in the manual issued by the State Comptroller of Public Accounts for the assistance of tax assessors-collectors. Other employees of the tax assessor’s office testified that they knew of no such plan or scheme and were never told not to assess non-income producing personal property. The tax assessment rolls show that no taxes were assessed or levied against privately owned automobiles and household furniture and fixtures. The burden resting upon tax officials to properly and correctly assess such properties is almost impossible from a practical standpoint. The net results are doubtful. Some practical consideration must be given to such a problem, though an attempt must be made to include such classes of property in the tax program. It has been held that exact uniformity and equality of taxation is an unobtainable ideal. Briscoe Ranches, Inc. v. Eagle Pass Independent School District, 439 S.W.2d 118 (Tex.Civ.App.—San Antonio 1969, writ ref’d n. r. e.). All members of the Commissioners Court and Mr. Charles B. Davis, Tax Assessor-Collector in 1976, each testified that there was never any discussion to not tax personal automobiles and household furniture and fixtures.

Bexar County’s failure to tax privately owned automobiles and household furniture and fixtures can only be attributed to “non-feasance” instead of “misfeasance” on the part of the tax assessor. Assuming, without deciding that there is some evidence to support Issue No. 1, we hold that there is no evidence to support Issue No. 2 and affirm the trial court.

When a taxpayer attacks the assessment of taxes against him on the grounds that the plan or system used by the taxing authority was arbitrary or illegal, he must sustain the burden of proof, not only that the plan was arbitrary and illegal, but also that the use of the plan operated to his substantial injury. State v. Federal Land Bank of Houston, 160 Tex. 282, 329 S.W.2d 847 (1959); Whelan v. State, 155 Tex. 14, 282 S.W.2d 378 (1955); City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414 (1954); State v. Whittenburg, supra. In State v. Federal Land Bank of Houston, supra, it was held that substantial injury means that the taxpayer must prove that his taxes are excessive or substantially higher because of the omission of taxable property. The record in this case fails to show the total assessed valuation of property on the tax rolls for the year 1976, and we must assume that the budgetary needs of the county were met by the tax rate adopted and levied on the assessed valuation. It was stipulated during the trial that for the year 1976 the revenue received from personal property taxes was 10 per cent of the total and the revenues from real property taxes was 90 per cent of the total. Plaintiff’s ad valorem tax on his personal property was $1,148.70 for the year 1976. The addition of household furnishings and appliances and individually owned automobiles and vehicles would increase the assessed valuation of taxable property and would result in the reduction of plaintiff’s taxes. There is no evidence to show that the failure to tax such property resulted in a substantial injury to plaintiff. “Substantial” is defined in Webster’s New International Dictionary, 2nd Edition, Unabridged, as “considerable in amount, value, or the like.” We believe the insubstantial nature of the injury to plaintiff is evidenced by his own testimony during the trial wherein he stated “What I want is uniformity. What I want is fairness. I. don’t care about the thousand dollars or so right here. It’s a drop in the bucket compared to what I want to pay. I want uniformity throughout this county.” See Whelan v. State, supra.

We have considered all of plaintiff’s points of error and overrule all of them as without merit. The judgment of the trial court is affirmed.

      . Statutory references herein are to Vernon’s Texas Civil Statutes unless otherwise indicated.


author: McCLOUD, Chief Justice.

text:
    Albert Willis BAKER, Appellant, v. Virginia (Baker) SEAVER, Appellee.
    No. 5139.
    Court of Civil Appeals of Texas, Eastland.
    June 1, 1978.

      Joe Taylor, Austin, Henry T. Ray, Amarillo, for appellant.
    Harriet Samon Owen, Austin, for appel-lee.
   McCLOUD, Chief Justice.

The controlling question is whether the court that enters a final judgment, affecting the parent-child relationship, after January 1, 1974, modifying a divorce and child custody judgment entered prior to January 1, 1974, thereafter becomes the court of “continuing jurisdiction”.

Petitioner, Virginia (Baker) Seaver, sued her former husband, respondent, Albert Willis Baker, in Travis County, seeking to be named managing conservator of Terry Mechia Baker, and requesting an increase in child support and modification of visitation rights. Petitioner alleged that “no other court has continuing jurisdiction of this suit or of the children” who were the subject of the suit. Respondent filed a “Motion To Transfer” wherein he challenged petitioner’s allegation that no other court had continuing jurisdiction of the suit. The trial court overruled respondent’s motion and entered its order appointing petitioner managing conservator of Terry Mechia Baker and continued petitioner as managing conservator of the parties’ two other children, Lela Jo Ellen Baker and Christopher Todd Baker. The court named respondent possessory conservator of the three children, set specific visitation rights, and increased the child support originally ordered when the parties were divorced on February 27, 1973.

Respondent appeals. We reverse and dismiss the proceedings without prejudice.

Petitioner and respondent were divorced February 27, 1973, in the Domestic Relations Court of Potter County, Texas. Petitioner was granted custody of the three children of the parties, Terry Mechia, Lela Jo Ellen and Christopher Todd. Respondent was given reasonable visitation rights and ordered to pay child support of $150 per month. On October 17, 1973, the Domestic Relations Court of Potter County entered an order changing the custody of Terry Mechia Baker to respondent. In “August of 1974”, the Domestic Relations Court of Potter County entered its order setting out specific visitation rights of the parties with the three children. This order controls our disposition.

Petitioner argues that since the original divorce judgment was entered prior to January 1, 1974, no court has continuing jurisdiction over these three children. We disagree.

Petitioner’s pleadings and the admission of counsel at time of trial conclusively establishes that in August 1974, the Domestic Relations Court of Potter County entered a final order “affecting the parent-child relationship”. The order specified the parties’ rights to access as to each of the three children.

In Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974), the court construed the transitional provision of the Texas Family Code and held that no court would have “continuing jurisdiction” based on its jurisdiction of any suit in which final judgment was entered prior to January 1, 1974. The transitional provision in question provides:

“(b) Any action or suit commenced after January 1, 1974, that has as its object the modification of an order, judgment, or decree entered prior to January 1, 1974, but which under this Act would be a suit affecting the parent-child relationship, is governed by the provisions of this Act, and shall be treated as the commencement of a suit affecting the parent-child relationship in which no court has continuing exclusive jurisdiction.” See Vol. 2 Texas Family Code, page 3.

The court in Curtis v. Gibbs, supra, was not concerned with a final judgment, affecting the parent-child relationship, entered after January 1, 1974, modifying a judgment entered prior to January 1, 1974, as we have in the instant case.

Section 11.05 of the Family Code expresses the public policy of this State that controversies affecting particular children need to be settled by a single court. Section 11.05 provides in part:

“(a) Except as provided in Subsections (b), (c), and (d) of this section, when a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing jurisdiction of all matters provided for under this subtitle in connection with the child, and no other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Section 11.06 of this code.”

Professor Eugene L. Smith, in the commentary discussing Section 11.05, states in 5 Tex.Tech L.Rev. 397:

“Subsection (a). Once a suit affecting the parent-child relationship has been brought in a district court (or a legislative court of equivalent jurisdiction), the court which enters judgment then has continuing, exclusive jurisdiction over subsequent suits affecting the parent-child relationship under subtitle A with respect to that child, whether the subsequent suit seeks either modification of the original decree or a decree affecting other aspects of the child’s welfare. In the jurisdictional sense, the entry of judgment in a suit affecting the parent-child relationship makes all subsequent suits affecting the judgment or any other aspect of the parent-child relationship ‘modification’ suits.”

To permit suits for modification of judgments entered prior to January 1, 1974, to be brought in any court, notwithstanding a modification judgment having been entered after January 1, 1974, would completely frustrate the purpose and intent of the Legislature. We hold that once a judgment entered prior to January 1, 1974, is modified after January 1, 1974, then the court modifying such judgment becomes thereafter the court of continuing jurisdiction.

Furthermore, in the instant case, respondent’s pleadings disputed petitioner’s allegation that no court has continuing jurisdiction of the children.

Section 11.071 of the Family Code provides:

“(a) The petitioner or the court shall request from the State Department of Public Welfare identification of the court that last had jurisdiction of the child in a suit affecting the parent-child relationship unless:
(1) the petition alleges that no court has continuing jurisdiction of the child, and the issue is not disputed by the pleadings; or
(2) the petition alleges that the court in which the suit, petition for further remedy, or motion to modify has been filed has acquired and retains continuing jurisdiction of the child as the result of a prior proceeding, and the issue is not disputed by the pleadings.
(c) If a' request for information from the department relating to the identity of the court having continuing jurisdiction of the child has been made pursuant to Subsection (a), no final order, except an order of dismissal, shall be entered until the information is filed with the court. If a final order is entered in the absence of the filing of the information from the department, the order is voidable on a showing that a court other than the court that entered the order had continuing jurisdiction.
(d) If the court in which a petition in a suit affecting the parent-child relationship is filed determines that another court has continuing jurisdiction of the child, the court in which the petition is filed shall dismiss the suit without prejudice.”

Section 11.05 of the Family Code provides in part:

“(c) A court shall have jurisdiction over a suit affecting the parent-child relationship if it has been, correctly or incorrectly, informed by the State Department of Public Welfare that the child has not been the subject of a suit affecting the parent-child relationship and the petition states that no other court has continuing jurisdiction over the child.”

In the instant case, neither the petitioner nor the court requested from the State Department of Public Welfare identification of the court that last had jurisdiction of the children. The trial court was not informed, either correctly or incorrectly, by the State Department of Public Welfare that the children had not been the subject of a suit affecting the parent-child relationship. The judgment entered in August of 1974 was entered in a suit affecting the parent-child relationship. The judgment expressly specified the parties’ rights to access as to each of the three children. Section 11.17 of the Family Code required the clerk of the Domestic Relations Court of Potter County to transmit a copy of that judgment to the State Department of Public Welfare.

Respondent’s pleadings disputed petitioner’s allegations that no other court had continuing jurisdiction. When confronted with a similar situation, the court in Brown v. Brown, 555 S.W.2d 784 (Tex.Civ.App.—El Paso 1977, no writ) stated:

“ . . .In such instance, it was incumbent upon him or the Court to obtain information from the Department of Public Welfare as to the identity of the Court having continuing jurisdiction, and any order entered in the absence of such information is voidable. Section 11.-071(d) . .

Respondent’s motion should have been designated as a plea to the jurisdiction rather than a “Motion To Transfer”. We will treat the plea as if it had been properly designated. It was obvious from respondent’s pleadings that he was challenging the jurisdiction of the court. Rule 71, T.R. C.P.

Judgment of the trial court is reversed and the case is dismissed without prejudice.


author: MURRAY, Justice. KLINGEMAN, Justice,

text:
    TOM BENSON CHEVROLET COMPANY, INC., Appellant, v. Ron BEALL, d/b/a Gas Outlet Auto Parts, Appellee.
    No. 15940.
    Court of Civil Appeals of Texas, San Antonio.
    June 7, 1978.
    Rehearing Denied July 12, 1978.

      Carl Robin Teague, Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., San Antonio, for appellant.
    Arnold L. Levey, San Antonio, for appel-lee.
   MURRAY, Justice.

This is a garnishment suit that was instituted by Ron Beall, as garnishor, against Tom Benson Chevrolet Company, as garnishee ancillary to a suit wherein garnishor obtained a judgment against Tom Amonett, as defendant. Ron Beall will be hereinafter referred to as garnishor, Tom Benson Chevrolet Company as Benson or garnishee, and Tom Amonett as defendant. The chronology of this case is as follows:

(1) August 30, 1976, a default judgment was rendered against defendant in the amount of $1,310.96 and costs;
(2) September 3, 1976, garnishor filed his application for writ of garnishment and writ of garnishment was served on Benson;
(3) September 8, 1976, defendant filed a motion for new trial;
(4) September 9, 1976, Benson paid defendant, doing business as “Auto Sheen Car Cleaning,” $2,186.50;
(5) September 24, 1976, Benson answered and denied that it was indebted to the defendant then or when the return was served;
(6) September 29, 1976, the trial court granted defendant’s motion for new trial;
(7) October 14, 1976, judgment was again rendered against defendant in favor of garnishor in the amount of $1,737.64 plus interest and costs;
(8) October 18, 1976, garnishor controverts garnishee’s answer;
(9) .May 10, 1977, judgment was entered for garnishor against garnishee in the amount of the first judgment with interest thereon from the date of the first judgment.

Benson had several contracts with defendant, Tom Amonett, doing business as Tom’s Make Ready and Tom’s Auto Cleaning, whereby defendant agreed to clean new cars for Benson prior to delivery. Upon receiving the writ of garnishment, the garnishee refused to do business with Tom Amonett doing business as Tom’s Make Ready or Tom’s Auto Cleaning. Defendant told Benson sometime in September that he had a new employer which was Auto Sheen Car Cleaning and that they would like to do business with Benson and there would be no problem because Benson would be paying the money to Auto Sheen and not to him, and thereafter, Benson did business with Auto Sheen, Amonett’s employer. The assumed name certificate of Auto Sheen Car Cleaning was introduced into evidence and showed that defendant was the sole owner of Auto Sheen Car Cleaning.

It is undisputed that both judgments involved were against Tom Amonett alone. The writ of garnishment mentions only Amonett and not Auto Sheen Car Cleaning.

We first consider garnishee’s points of error that there is no evidence and insufficient evidence to support the trial court’s finding that garnishee knew or should have known that defendant was doing business under the assumed name of Auto Sheen Car Cleaning. We hold that under the evidence in this case, Benson, by the exercise of ordinary diligence, should have ascertained the type of business ■ and ownership with which it was dealing. Benson should have known that the debtor named in the writ of garnishment was the same as the creditor which it owed money. The trial court’s finding as to actual notice and knowledge are sufficiently supported by the record.

Benson’s other points of error assert that the garnishment judgment cannot stand for the reason that the garnishor did not have a judgment to support the garnishment judgment and that when the first judgment was set aside it destroyed the existence of the judgment on which the garnishment judgment was based. We agree.

It is apparent that the trial court has entered a judgment in this case against the garnishee, Tom Benson Chevrolet, based upon a judgment that has been set aside by the trial court. On May 10, 1977, the only judgment against the defendant was dated October 14, 1976. On this date, garnishee had no property in his possession belonging to defendant. On September 29, 1976, when the trial court granted the motion for new trial, the judgment of August 30,1976, no longer existed. Luck v. Hopkins, 92 Tex. 426, 49 S.W. 360 (1899); Turner v. Texas Sportservice, 312 S.W.2d 388 (Tex.Civ.App.—San Antonio 1958, writ ref’d n. r. e.); Tex.R.Civ.P., 329b (1978). In Turner, the court said at page 392, “When the Court on August 13, 1957, set aside the June 26th judgment, the status of the case was just the same as if the judgment had not been rendered . . .” The remedy of garnishment is summary and harsh and it follows that such proceedings cannot be sustained unless they are in strict conformity with statutory requirements. Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039 (1937). Garnishment is but a mode of enforcing execution of a court’s judgment. Kelly v. Gibbs, 84 Tex. 143, 19 S.W. 380 (1892), 84 Tex. 143, 19 S.W. 563 (rehearing) (Tex.1892). In Kelly, our Supreme Court stated 19 S.W. at page 563:

It follows, therefore, that at any stage of the proceedings in garnishment he should have the right to show either that the judgment relied upon by the plaintiff to support his garnishment does not, in fact, exist, or that it is void.”

A judgment that is nonexistent will not support a garnishment judgment.

We need not discuss the second judgment as the garnishment was filed prior to the rendition of the second judgment and the court does not purport to base the garnishment judgment thereon.

The judgment of the trial court is reversed and rendered that garnishor take nothing. Garnishee’s demand for compensation is remanded to the trial court for further proceedings.

KLINGEMAN, Justice,

dissenting.

I dissent. I would affirm the judgment of the trial court.

The trial court made extensive findings of fact and conclusions of law which are not included in the majority opinion, and they are herein set forth in a footnote.

The majority has held that under the evidence in the case, Benson, by the exercise of ordinary diligence, should have ascertained the type of business and ownership with which it was dealing, and should have known that the debtor named in the writ of garnishment was the same as the creditor which it owed money; and that the trial court’s finding as to actual notice and knowledge is sufficiently supported by the record. I agree with this holding and will not discuss it further.

However, I disagree with the majority holding that the garnishment judgment cannot stand for the reason that the garnishee did not have a judgment to support the garnishment judgment.

The majority opinion does not discuss or even mention the provisions of Rule 657, Texas Rules of Civil Procedure. The applicable garnishment statute, Article 4076 of the Revised Civil Statutes of Texas, provides in subdivision 3 that a writ of garnishment may issue when the plaintiff has a valid and subsisting judgment and makes affidavit that the defendant has not within his knowledge property in his possession within the state subject to execution sufficient to satisfy the judgment. Rule 657, Texas Rules of Civil Procedure, provides that in the case mentioned in subdivision 3 of Article 4076, the judgment shall be deemed final and subsisting for the purpose of garnishment from and after the date of its rendition, unless a supersedeas bond shall have been approved and filed in accordance with Rule 364.

No supersedeas bond was ever filed in said cause.

It is undisputed that a judgment was entered in favor of the garnishor against the defendant, Tom Amonett, on August 30, 1976; that it was never superseded; that it was in effect and a subsisting judgment at the time the writ of garnishment was issued, when such writ was served, when the garnishee paid the defendant and when the garnishee filed its answer. It is also undisputed that at the time the garnishment judgment here under attack was rendered, garnishor was a holder of a valid and subsisting final judgment against the judgment debtor.

The established rule in Texas is that a garnishee cannot after service of process prejudice the rights of a plaintiff in a lawsuit, and if he transfers during the penden-cy of the garnishment any of the indebtedness belonging to the defendant in the suit, he does so at his peril. Westridge Villa Apartments v. Lakewood Bank & Trust Co., 438 S.W.2d 891, 894 (Tex.Civ.App.—Fort Worth 1969, writ ref’d n. r. e.); Pure Oil Co. v. Walsh-Woldert Motor Co., 36 S.W.2d 802 (Tex.Civ.App.—Texarkana 1931, writ dism’d).

Under the record, the garnishment judgment here under attack was proper. I would affirm the judgment of the trial court.

      . Findings of Fact and Conclusions of Law Findings of Fact:
      (1)On August 30, 1976, a Judgment was recovered by Ron Beall against Tommy Amo-nett for the sum of $1,010.96, $300 attorney’s fees, interest thereon at 10% per annum and costs of court. A total of $1,390.16.
      (2) On September 3, 1976, a Writ of Garnishment was served on the Garnishee. On that date, the Garnishee was indebted to Tommy Amonett in the sum of $2,186.50.
      (3) On August 11, 1976, Tommy Amonett registered “Auto Sheen Car Cleaning” as an assumed name. (4) On September 9, 1976, Garnishee paid the $2,186.50 to Auto Sheen Car Cleaning, solely owned by Tommy Amonett.
      (5) On September 24, 1976, Garnishee filed an Answer stating that it was not indebted to Tommy Amonett at the time that the Writ of Garnishment was served when, in fact, it was so indebted at that time to him, and, in spite of the service of said Writ, payed [sic] the herein-above mentioned sum to Tommy Amonett.
      (6) On September 29, 1976, the Judgment entered in Cause 106,548 was set aside and a new trial was granted.
      (7) On October 14, 1976, after a retrial, Judgment was again entered in favor of the Plaintiff against Tommy Amonett for the sum of $1,137.64, attorney’s fees of $600 and interest thereon at 9% per annum.
      (8) No Supersedeas Bond was ever filed in said cause.
      (9) Garnishee had done business with Tommy Amonett for a number of months under more than one trade name and had actual knowledge that Tommy Amonett was doing business under the name of Auto Sheen Car Cleaning.
      (10) There was such a relationship between Tommy Amonett and Auto Sheen Car Cleaning that warranted investigation on the part of Garnishee in light of the Writ of Garnishment.
      Conclusions of Law:
      (1)There was a final subsisting Judgment in favor of Plaintiff against Tommy Amonett in accordance with Rule 657 at the time the Writ of Garnishment was applied for, when it was issued, when it was served, and when Garnishee filed its answer.
      (2) There was a final subsisting Judgment in favor of Plaintiff against Defendant when this cause was tried..
      (3) As the Garnishee was indebted to Tommy Amonett in a sum greater than the amount of the Judgment in Plaintiff’s favor when the Writ was served upon Garnishee, Plaintiff is entitled to Judgment against Garnishee for the amount of the Judgment as of the date when said Writ ■ was served.

      . Under the majority opinion, a garnishee, who has been served with a writ of garnishment by a garnishor who has at such time an existing judgment against a debtor, could continue to make payments to such judgment debtor even though the garnishee knows or should .have known that the debtor named in the writ of garnishment was the same as a creditor which it owed money. This could continue for a considerable period of time — until a motion for new trial was filed by the judgment debtor, and if so filed until it is overruled, or overruled by operation of law. During such period of time, funds which would ordinarily be available to the garnishor would be dissipated, often to the garnishor’s prejudice. This totally ignores the provisions of Rule 657, Tex.R.Civ.P., as to finality of judgments for purpose of garnishment.


author: J. CURTISS BROWN, Chief Justice.

text:
    Arthur REESE, Jr., Appellant, v. STANDARD FIRE INSURANCE COMPANY, Appellee.
    No. 1744.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 7, 1978.
    Rehearing Denied June 28, 1978.

      Stevens F. Mafrige, George A. Sellnau, Houston, for appellant.
    Edward J. Hennessy, Randall D. Wilkins, Thurlow & Hennessy, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a judgment granted the appellant in his cross action for worker’s compensation benefits.

Arthur Reese, Jr. (Reese or appellant) injured his lower back on March 14, 1975 while shoveling wet cement during the course and scope of his employment as a construction worker for P. G. Bell Company. He filed a claim for worker’s compensation benefits, and he was awarded the sum of $8,648.10 by the Texas Industrial Accident Board. The worker’s compensa-' tion insurance carrier, Standard Fire Insurance Company (Standard or appellee), sued in district court in a trial de novo to have the award set aside, and Reese filed a cross action for compensation benefits (including medical expenses). Reese appeals from a verdict and judgment in his favor in the amount of $2,278.91.

Reese contends, in his first point of error, that the jury argument made by Standard’s attorney was so prejudicial as to deprive Reese of a fair and impartial hearing on the merits of the case. He argues, in this regard, that the jury was thereby caused to fix an amount of benefits that was neither authorized nor supported by the evidence. In order to constitute a basis for the reversal of a judgment, a jury argument “must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 599 (1953). An improper argument may be either curable or incurable. Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.Sup.1968). If the harmful effect of the argument may be rendered harmless by the trial judge’s instruction to disregard, the argument is considered curable. A party complaining of a curable argument waives the error if he fails to object to the argument promptly and request an instruction thereon. Id.

Standard’s attorney made the following statements during his argument to the jury:

But that won’t make this claim valuable enough. So, we have to run in Dr. Bun-ing. Enter Dr. Buning, April 8, 1975, approximately three and a half weeks after this incident. Dr. Buning in Spring Branch, Mr. Reese, Astrodome. He drove by a thousand doctors between the Astro-dome and Spring Branch. Aren’t you curious as to why he went to Dr. Buning? Aren’t you curious as to why Mr. Mafrige sent him to Dr. Buning? Does not a sham or a plot evolve out of all of this? What does Buning do then? Let’s send him over to old Mort, give him the old 16891115 treatment. That’s good. That looks good on paper. We can pump on him for about six or eight weeks, build those medical bills up real high. The higher the medical bills, obviously he has got to be hurt if he has got all of those medical bills. It will look good in front of a jury. Does not that make itself abundantly clear to you? Does not that eat away at the credibility of this entire situation?

Those statements were not objected to by Reese’s attorney, and, unless they constituted improper arguments of the incurable type, Reese waived any complaints he may have had regarding those statements. Standard’s attorney later argued:

Maybe you all feel like I am rationalizing. Maybe I am. But Mr. Reese, when he tells you he is hurt and can’t do this and can’t do that and will never ever be the same again, maybe Mr. Reese really be- ■ Heves that. And if he does, then he is telling the truth. But it is not credible, folks. It is not credible when you put all of these facts together, when you put in the Mafrige-Bachynsky-Buning combination ....

Reese’s attorney objected to those statements and was told by the trial judge that he could reply to them during his closing jury argument.

The portions of the jury argument recited above would have been proper if they had been based upon evidence adduced during the course of the trial. No evidence was presented during trial, however, to show that Reese’s attorney concocted “a sham or a plot” or to show that Reese had to drive by “a thousand doctors” before he found one who would cooperate in the “combination” by providing unnecessary treatment and inflating Reese’s medical bills. The argument was, therefore, both improper and incurable. Howsley & Jacobs v. Kendall, 376 S.W.2d 562 (Tex.Sup.1964); Sanders v. St. Paul Fire & Marine Insurance Company, 429 S.W.2d 516 (Tex.Civ. App.—Texarkana 1968, writ ref’d n. r. e.); Cross v. Houston Belt & Terminal Railway Company, 351 S.W.2d 84 (Tex.Civ.App.—Houston 1961, writ ref’d n. r. e.). Even in the absence of an objection, the trial court had a duty to require counsel to confine his argument strictly to the evidence and to the arguments of opposing counsel. Hemmenway v. Skibo, 498 S.W.2d 9 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.); Tex.R. Civ.P. 269(g). Standard asserts that the decision of this court in Stott v. Houston Lighting and Power Company, 453 S.W.2d 364 (Tex.Civ.App.—Houston [14th Dist.] 1970, no writ), in which we held that a similar argument was curable, is controlling in this case. The Stott case is distinguishable from the present situation, however, since the statements made by counsel during oral argument in Stott found support in the evidence.

After a careful review of all the evidence that was presented during the trial, we have concluded that the improper argument made by Standard’s attorney was reasonably calculated to cause and probably did cause the jury to enter findings regarding medical expenses incurred by Reese that were unsupported by the evidence and, therefore, probably did cause the rendition of an improper judgment in the case. Cf., e. g., McGee v. Thomas, 508 S.W.2d 191 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.). Of course, our holding should not be construed as conclusively establishing that the jury findings were in fact unsupported by the evidence. Having sustained Reese’s first point of error, we find it unnecessary to reach his other points, and we express no opinion thereon. The judgment of the district court is therefore reversed, and the case remanded for a new trial.

Reversed and remanded.