author: RALEIGH BROWN, Justice. WALTER, Justice, RALEIGH BROWN, Justice.

text:
    Carroll LOCKETT et al., Appellants, v. REDI-FUEL TRANSPORT, INC., et al., Appellees.
    No. 5027.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 20, 1977.
    Rehearing Denied Nov. 17, 1977 and Dec. 15, 1977.
    Aubrey J. Fouts, Key, Carr, Evans & Fouts, Lubbock, for appellants.
    Robert D. Batjer, Jr., Wagstaff, Harrell, Pope, Alvis, Dickenson & Erwin, Abilene, Tom Hamilton, LaFont, Tunnell, Formby, LaFont & Hamilton, Plainview, for appel-lees.
   RALEIGH BROWN, Justice.

This wrongful death case is the result of an automobile-truck collision. Bert Lock-ett, the surviving husband, and Carroll Lockett, the sole child of Zola H. Lockett, sued Redi-Fuel Transports, Inc. and its driver, Guy W. Steiwig, for damages for the death of Zola Lockett. A take nothing judgment was rendered following a jury verdict. Plaintiffs appeal. We affirm.

The jury determined: Guy W. Steiwig (1) did not fail to keep a proper lookout; (2) was not traveling at a greater rate of speed than a person using ordinary care; (3) did not fail to make proper application of his brakes; (4) did not fail to turn to his left as a person using ordinary care; (5) was driving while under the influence of liquor; (6) such driving under the influence of liquor was a proximate cause of the occurrence in question; and (7) his driving under the influence of liquor was a heedless and reckless disregard of the rights of others. The jury also found: Mrs. Lockett (1) failed to keep a proper lookout; (2) such failure was a proximate cause of the occurrence; (3) failed to yield the right-of-way; and (4) such failure was a proximate cause of the occurrence. Steiwig’s percentage of negligence causing the occurrence was 25% and Mrs. Lockett’s percentage was 75% according to the jury.

Appellants contend the court erred in failing to set aside the lookout, comparative negligence and the right-of-way findings as to the deceased driver because there is no evidence and factually insufficient evidence to support such findings.

Zola Lockett was killed on July 18, 1975 in an automobile-truck collision occurring a few feet outside the city limits of Snyder, Texas near the intersection of United States Highway 84 and Huffman Avenue. A truck stop was located north and west of the intersection. The Lockett vehicle being driven by Zola Lockett apparently exited the truck stop on the north and drove onto the east-west road just north of Huffman Avenue. The Lockett vehicle stopped at the stop sign. The Lockett vehicle then pulled from the stop sign, turning south onto U.S. 84 and began to “angle” southeast towards the intersection of Huffman Avenue and U.S. 84. Apparently, the Locketts intended to make a U-turn and head north toward Lubbock, their intended destination. The speed of the Lockett vehicle was described only as “gradual”.

As the Lockett vehicle neared the U-turn point, it angled into the left-hand lane and approached the left-turn lane. The transport truck, driven by the defendant truck driver, being in the left lane hit the automobile. The front of the transport truck struck the Lockett vehicle at approximately the driver’s door. The point of impact was six feet into the left-hand lane and twenty-eight feet from the south end of the left-turn median. There were no skid marks or indications of swerving by either vehicle before impact.

Steiwig first saw the Lockett vehicle just as it pulled away from the stop sign and edged into the right-hand lane of U.S. 84. He described the Lockett vehicle as “angling” across at a gradual speed. Immediately before impact, Steiwig testified he applied his brakes and blew his horn. After impact, the truck continued in a south, southeasterly direction, hit the left-turn median for north-bound traffic to turn west, and stopped 225 feet from the point of impact in the northbound lane of U.S. 84. The truck jackknifed to a stop. The Lock-ett vehicle was knocked to the south, southwest and came to rest some 696 feet from the point of impact.

In Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974), the court said:

“When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable' light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Langlotz v. Citizens Fidelity Insurance Company, 505 S.W.2d 249 (Tex.1974). It would be our duty to affirm the judgment of the Court of Civil Appeals if the evidence offered to show negligence were proven to be no more than a scintilla of proof. Thus if the evidence created nothing more than a mere surmise or suspicion of the existence of negligence, such evidence would be, in legal effect, no evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). But if negligence may be reasonably inferred from direct evidence, then there is no more than a scintilla of evidence. Calvert, No Evidence' and ‘Insufficient Evidence’ Points of Error, 38 Texas Law Review 361, 363 (I960).”

In Lynch v. Ricketts, 158 Tex. 487, 314 S.W .2d 273 (1958), it is said:

“In a case of this character, standards of ordinary care such as the direction and extent of the observation which Mrs. Ricketts should have made at any particular time cannot be fixed with any degree of certainty but must be left in large measure to the trier of fact. It is well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. See English v. Miller, Tex.Civ.App., 43 S.W.2d 642 (wr. ref.); Henry v. Publix Theatres Corp., Tex.Civ.App., 25 S.W.2d 695 (wr. ref.). The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded under the provisions of Rule 301, therefore, ,if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same.”

We find some evidence of probative force in the record which supports the jury’s answers to the lookout, right-of-way and comparative negligence findings on the deceased driver. The testimony of Steiwig together with the testimony of Holloway, an eyewitness who testified the automobile pulled out on the highway in front of the truck, constitutes some evidence on these issues. Also, we are of the opinion the circumstantial evidence would support the findings.

We have considered the entire record and hold the evidence is not factually insufficient to support the findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Appellants contend the court erred in failing to grant them a new trial on the speed finding, the lookout finding and the comparative negligence finding as to the truck driver because the findings are supported by factually insufficient evidence and are against the weight of the evidence.

We have considered the entire record and hold such findings are not factually insufficient and are not against the weight of the evidence. In re King’s Estate, supra.

Appellants also contend the court erred in admitting the officer’s testimony that the truck driver’s intoxication was not the cause of the accident. Although we agree the admission of such testimony was error and the testimony is calculated to show that the officer did not believe intoxication caused the accident, we conclude from an examination of the entire record that such error was harmless.

The objectionable testimony of Trooper Clark given on cross-examination was:

“Q . What are the elements as you understand them of the offense of involuntary manslaughter?
A All right, sir. That person was operating the motor vehicle or vehicle— I’m dealing with motor vehicles— and that person was using the public highway and was driving that—the person—was doing the driving was under the influence of alcohol that caused the death of someone else.
Q So a necessary element and the last element of that offense would be that the intoxicated state of a driver actually caused the death of another person?
A Yes, sir.
Q And if that element were not there, you couldn’t make the offense, could you?
A (NO RESPONSE)
Q Couldn’t make it stand up?
A Sir, I don’t think so.
Q All right.”

The vice of such testimony is the opinion of the officer that the intoxication was not the cause of the accident.

Significantly, plaintiff’s attorney on redirect examination of Trooper Clark inquired:

“Q In your determination as to what charges to file, you were dealing with a criminal standard of proof, weren’t you, Mr. Clark?
A Yes, sir.
Q Do you understand that the criminal standard of proof is proof beyond a reasonable doubt?
A Yes, sir.
Q That is a different standard of proof from the civil standard of proof, isn’t it?
A Yes, sir.
Q You weren’t doing any investigation for a civil case, were you?
A No, sir.
Q So actually you didn’t try to make any determination as to what was the causation, what happened to cause the accident from a civil standpoint, did you, Mr. Clark?
A No, sir.”

Appellants contend the admission of Clark’s testimony affected the jury’s determination of the causation of the accident.

Contrary to Clark’s objectionable testimony, the jury determined Steiwig, the truck driver, was driving his vehicle while under the influence of intoxicating liquor and such intoxication was a proximate cause of the occurrence. The erroneously admitted opinion testimony of Trooper Clark was harmless because the jury expressly found in favor of appellants on the tendered issues to which the testimony was applicable. Rule 434, T.R.C.P.; Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364 (1956); Womacks v. Horne, 300 S.W.2d 765 (Tex.Civ.App.— Waco 1957, no writ); Rowan & Hope v. Valadez, 258 S.W.2d 395 (Tex.Civ.App.— San Antonio 1953, writ ref. n. r. e.); Alexander v. Appell Drilling Co., 290 S.W.2d 377 (Tex.Civ.App. — Waco 1956, writ ref. n. r. e.).

Examination of the entire record supports the jury’s findings on the comparative negligence issue which asked the jury to find the percentage of “negligence that caused the occurrence.” Holloway, an eyewitness, testified that defendant was holding the truck as straight as any man could and trying to miss the automobile. He further testified that the deceased driver was pulling out on the highway in front of the truck. Steiwig testified he pulled over to the left as far as possible, sounded his airhorn, applied his brakes and could have avoided the accident if plaintiff had not entered the left lane.

The jury resolved in favor of Steiwig the lookout, speed, brakes and turn-left issues. Such findings absolve Steiwig from negligent operation of the truck. The jury found Mrs. Lockett failed to keep a proper lookout and failed to yield the right-of-way, such failures being proximate causes of the occurrence. Additionally, the jury determined Steiwig drove his vehicle in a heedless and reckless disregard of the rights of others. Having made such findings and even though Clark’s opinion suggested that the intoxication was not a cause of the occurrence, the jury found Steiwig’s percentage of negligence causing the occurrence was 25% and Mrs. Lockett’s percentage was 75%.

We hold under the circumstances of the entire record the error is not such as caused the jury to return a verdict which it would not have returned had it not occurred. We do not agree “that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” Rule 434, T.R.C.P.

The judgment is affirmed.

WALTER, Justice,

dissenting:

I dissent.

Appellants contend the court etred in admitting the officer’s testimony that the truck driver’s intoxication was not the cause of the accident.

Officer Bob L. Clark, a trooper with the Texas Department of Public Safety, testified on direct examination from plaintiffs’ lawyer, Fouts, substantially as follows:

I have been stationed in Snyder a little over nine years with the department and at the present time I am a traffic supervisor apprehending criminals and making traffic accident investigations. I investigated the accident that occurred near the area known as Huffman Avenue and U.S. Highway 84 on July 18, 1975, involving a truck-trailer and an automobile. I passed by the truck and the man standing in front of the truck told me he was all right so I went on to the car. After I had taken care of the situation at the Lockett car, I went over to the truck and questioned the truck driver. As the truck driver and I were going to the scene of the accident, I noticed he staggered slightly. When he got to the point of impact, I smelled odor of alcoholic beverage on his breath. I asked him to remove his dark shades so I could see his eyes and they were bloodshot.

He was asked the following questions and he gave the following answers:

“Q And then what occurred next—
A All right, sir.
Q —in connection with that?
A Then I advised him, you know, that I believe he had had a little too much to drink, that he was under arrest for driving while intoxicated.”

No objections were made to this testimony.

On cross-examination, he was asked:

“Q Officer, I will now ask you what your normal procedure would be where you were dealing with a situation wherein a driver of a vehicle had been arrested by you, had taken the breathalyzer test and registered .12% on it, and smelled of alcohol and staggered slightly once, where that driver was involved in a motor vehicle accident which caused the death of someone else, what would you normally do as the — ”

Plaintiffs objected to this question because it called “for a conclusion and speculation about what he would do or what he would normally do and things of that kind. It would have nothing to do with this case.”

After considerable discussion and examination of the witness out of the presence of the jury, the court said:

“THE COURT: —the reason we got into this mess is because the criminal charge in the first place was elicited. The evidence was elicited about the criminal charge being filed. So if there is error, I think it has already happened. Therefore, I am going to — I will overrule the objection. I am going to allow the defense to go into the other matter.”

Thereafter, cross-examination continued and he testified as follows:

I filed a charge of driving while intoxicated against Mr. Steiwig based on my observation of him and his breathalyzer test.

He was asked the following question:

“Q My question when counsel objected had to do with what you normally would have done where a person who was operating a motor vehicle in what you thought was an intoxicated state and where because of that intoxicated state, in your opinion, that person caused the death of another person by running over them or something, I would ask you what the normal charge would be?”

Plaintiffs again objected to the question which was overruled.

Trooper Clark continued to testify substantially as follows:

The charge normally would have been involuntary manslaughter. One of the necessary elements of that offense would be that the intoxicated condition of the driver caused the death of another person. If this necessary element of the offense was not there, I don’t think it would stand up.

Appellants contend the statement by the officer about the charge of driving while intoxicated was a voluntary statement, not in response to any question and no objection was made to the answer.

In Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952), the court said:

“ . . . The fact that inadmissible testimony of one party is admitted without objection does not authorize the other party, by way of rebuttal, to put in inadmissible testimony over timely and proper objection . . . ”

In Snow v. Bond, 438 S.W.2d 549 (Tex. 1969), it is said:

“ . . . An expert witness can and should give information about these standards without summarizing, qualifying or embellishing his evidence with expressions of opinion as to the conduct that might be expected of a hypothetical doctor similarly situated. The latter is not an appropriate subject for expert testimony . . . ”

In Lindley v. Lindley, 384 S.W.2d 676 (Tex.1964), the court said:

“ . . .No witness, whether expert or non-expert, is permitted, over proper objection, to state his opinion as to the legal capacity of a person to make a will, because the determination of the existence of testamentary capacity involves the application of a legal definition to the facts. See Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621, 36 L.R.A. 64; McCormick & Ray, Texas Law of Evidence, 2nd ed. 1956, § 1421. For the same reason even an expert medical witness is not qualified to say, in so many words, that a particular belief held by the testator constituted an insane delusion.”

In Chuppe v. Gulf Iron Works, 306 S.W.2d 177 (Tex.Civ.App. — Eastland 1957, writ ref. n. r. e.), this court said:

“The court erred in permitting the witness to so testify. In 2 McCormick and Ray, Texas Law of Evidence, 281, it is stated that the Texas courts have usually excluded opinion as to carelessness and prudence since they are mixed questions of law and fact and such testimony constitutes an invasion of the province of the jury.
‘ — a witness may not ordinarily express his opinion as to the cause of a particular accident or occurrence.’ 19 TexJur. 18.
‘The opinion of an expert on the question of due care or negligence is doubly objectionable as involving a preliminary question of law and as an invasion of the province of the jury to determine ultimate issues, and is therefore inadmissible.’ 19 Tex.Jur. 34, 35.
‘Thus title or want of title, mental capacity or lack of it, fraud or good faith, due care or negligence, are all conclusions which the law draws from certain facts; and when the jury seek to determine — whether a party used due care, the ultimate question for determination is a mixed question of law and fact.’ 19 Tex.Jur. 104, 105.

In Texas & P. R. Co. v. Felker, 40 Tex. Civ.App. 604, 90 S.W. 530, 531, the court said:

‘We believe no case can be cited where it is held that a witness may testify that an act does or does not constitute negligence.’ ”

I hold it was error for the court to admit the testimony of Officer Clark regarding the involuntary manslaughter offense.

Appellees contend even if the admission of the questionable testimony was error, it was harmless.

Appellants contend the error in admitting the testimony of the officer concerning the reasons he did not file involuntary manslaughter charges against the truck driver constitutes reversible error in that it was reasonably calculated to cause and probably did cause rendition of an improper verdict. They contend the officer’s testimony amounted to his speculative opinion as to causation based on the burden of proof in a criminal case. They contend his subjective opinion applying a legal conclusion to a mixed question of law and fact destroyed their case before the jury. They contend this improper testimony was calculated to and did cause an improper verdict not only on the comparative negligence findings, but on the speed and lookout issues as to the truck driver.

In my opinion, such error was reasonably calculated to and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P.

ON MOTION FOR REHEARING

RALEIGH BROWN, Justice.

On motion for rehearing, appellants contend the record conclusively proves that Holloway could not have been an eyewitness to the accident although his testimony in part was as follows:

“Q What did you see?
A We seen the truck out there in the boulevard and he was going down the highway and heard the braking of his tires. But looked on further down the road to see what he was braking for and there was a car pulling out on the highway in front of him down at the next intersection.
What do you mean by the boulevard? What are you referring to? O’
Highway 84. t>
So the car was pulling out in front of the truck? £>
Yes, sir. i>
Did he brake it all the way to point of impact? O’
Well, he was braking all the way to the point of impact from the sound of the tires.
Was he braking after the point of impact? <y
To the best of my ability he was from the sound of things.
Did he hold the rig straight? ¿D
Yes, sir. It was straight as any man could hold it. >
Now, has Mr. Fouts talked to you about this case, sir? <y
Who?
This man sitting right here?
Yes, sir.
About how long ago was that?
It’s been three weeks, maybe a month, something like that.
Did you tell him basically the same thing that you told us here today? £>
Yes sir, I gave him a statement.
You told him that you were an eye witness to it?
Yes, sir. í>
And—
I think this is the man. I believe I recognize him. >
All right. <©
I don’t know him by name. i>
But you were an eye witness to the accident? £>
Yes, sir. He didn’t have that tie and suit on.”

Appellants urge because other testimony of Holloway demonstrated he believed the Lockett vehicle to be traveling east on Huffman Avenue which was contrary to the truck driver’s and investigating officer’s version of the accident and the physical facts Holloway, as a matter of law, could not have been a preimpact witness.

This court in Carruth v. First National Bank of Fort Worth, 544 S.W.2d 678 (Tex. Civ.App. — Eastland 1976, writ ref. n. r. e.) said:

“Before the testimonial declaration of a party will be given conclusive effect, it must appear among other things that the statement is deliberate, clear, and unequivocal. Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956). If the statement merely contradicts some other portion of the party’s testimony, conclusive effect cannot be given thereto, but a fact issue is presented for the determination of the jury as in the case of an ordinary witness. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App. — San Antonio 1951, writ ref.).”

We find nothing to cause us to change the judgment heretofore entered. The motion for rehearing is overruled.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Larry BROADDUS et al., Appellants, v. TOWN NORTH NATIONAL BANK, Appellee.
    No. 1059.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 3, 1977.
    Rehearing Denied Dec. 15, 1977.

      Laird H. McNeil, Parnass, Fowler & Avery, Irving, for appellants.
    James S. Pleasant, Wynne & Jaffe, Dallas, for appellee.
   McKAY, Justice.

This is an appeal from a summary judgment granted appellee, Town North National Bank, against appellants, Larry Broaddus and Terrell C. Taylor, on a promissory note.

Appellants Broaddus and Taylor were comakers, along with one Charles W. Curtis, of a promissory note dated January 10, 1975, in the principal sum of $8,900.00, payable to appellee on July 9, 1975, with interest thereon at the rate of 10% from date until maturity. The due date for payment of such note was extended to October 9, 1975, after a partial payment was made reducing the principal balance to $7,000.00. On November 25, 1975, appellee demanded payment in full of the unpaid principal and interest; but, except for a partial payment of interest, appellants made no further remittance, leaving a balance of $7,231.02 due and owing. Thereupon, appellee brought suit and filed a motion for summary judgment (Charles W. Curtis, originally named as a defendant, was dismissed without prejudice upon motion by appellee). In response to appellee’s motion for summary judgment, appellants filed an answer and affidavits which appellants contend, in conjunction with other instruments on file, raised genuine, material fact questions and issues as to their liability to appellee. Upon hearing and consideration of the affidavits in support of and opposition to appellee’s motion, the trial court determined that there was an absence of a genuine issue of material fact, and the court entered summary judgment on appellee’s behalf, from which appellants duly perfected their appeal.

Appellants’ point one complains that the trial court erred in granting summary judgment because neither the original nor a certified copy of the promissory note sued upon was properly before the court. In its motion for summary judgment, appellee bank alleged that there was no genuine issue as to any material fact and that it was entitled to a judgment as a matter of law. In connection with the motion for summary judgment there was filed an affidavit of William D. Hudson, Executive Vice-President of Town North National Bank, in which he stated that he was competent to testify of every statement made therein and that the facts stated in the affidavit were within his personal knowledge and are true and correct. In the affidavit Hudson stated, “A true and correct copy of the note is attached hereto, marked as Exhibit A and is incorporated herein for all purposes.” The note was attached to the affidavit, and the affidavit was sworn and subscribed before a notary public of Dallas County, Texas. Appellants aver and argue that neither the original nor a sworn or certified copy of the note was attached to the affidavit or to the motion for summary judgment, and they contend that the provisions of Rules 166-A, Texas Rules of Civil Procedure, and particularly Rule 166-A(e), which provides that sworn or cértified copies of all papers referred to in an affidavit in support of the motion must be attached thereto. Rule 166-A(e) provides in part, “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”

Appellants cite and rely upon Texas National Corp. v. United Systems International, 493 S.W.2d 738 (Tex.1973). In that case the plaintiff’s petition stated that “a copy of said note” was attached to the petition marked Exhibit A and referred to for all purposes, but the copy of the note was not attached to the motion or the affidavit as a sworn or certified copy. The Supreme Court reversed the summary judgment rendered because “1. The factual statements to support the motion for summary judgment are in the pleadings, not in a sworn motion or affidavit in support of the motion . . , 2. neither the original nor a sworn copy of the note was attached to a motion or an affidavit in support of the motion as required by Rule 166-A(e).” In our opinion the Texas National case is not in point with the case at bar.

Appellants also cite Horn v. First Bank of Houston, 530 S.W.2d 864 (Tex.Civ.App.— Houston [14th Dist.] 1975, no writ); Lindley v. Smith, 524 S.W.2d 520 (Tex.Civ.App.— Corpus Christi 1975, no writ); Engineering Technology Analysts, Inc. v. Shetti, 517 S.W.2d 698 (Tex.Civ.App. — Houston [1st Dist.] 1974, no writ); and Kain v. Newhaus, 515 S.W.2d 45 (Tex.Civ.App. — Corpus Christi 1974, no writ). In the Horn case it was held the affidavit in support of a motion for summary judgment was defective because it did not recite that it was made on the personal knowledge of the affiant, and that such defect was objected to in the trial court. In Lindley the two exhibits attached to the plaintiff’s affidavit “were neither sworn to nor certified as required by Rule 166-A(e).” In Engineering Technology the summary judgment proof consisted entirely of the pleadings and interrogatories of the parties, and the plaintiff failed to attach either the original or a sworn copy of the alleged contract of employment to the motion for summary judgment or to an affidavit in support of such motion. The court there said, “Either method would have established prima facie proof of its existence and authenticity.”

The only case appellants cite which we deem in point is Kain v. Newhaus, supra, in which the court indicates that attaching an exhibit which is itself unsworn and uncerti-fied to an affidavit wherein the affiant refers to the attached exhibit as being true and correct does not satisfy Rule 166-A(e).

The question presents itself: What is meant by the language of Rule 166-A(e) as to what constitutes a sworn copy of an exhibit? Must the exhibit be sworn to or certified separately from the affidavit and then attached, or may the affiant who executes the affidavit swear that the attached exhibit is a true and correct copy of the original exhibit?

In International Shelters, Inc. v. Corpus Christi State National Bank, 475 S.W.2d 334, 338 (Tex.Civ.App. — Corpus Christi 1971, no writ), it was held that a photographic copy of the note executed by appellants attached to the petition and certified in the affidavit “to be a true and correct copy of the original note” was not subject to the objection that the affidavits were insufficient because “papers referred to in the affidavits were not attached or served therewith.”

In Rosenthal Produce Co. v. Tasinc Corp., 470 S.W.2d 448 (Tex.Civ.App. — Dallas 1971, no writ), it was held that where the affidavit in support of the summary judgment motion, made by the president of appellee company, to which were attached copies of the notes which affiant swore were true and correct copies of the original notes, and which notes were duly assigned to and then owned by appellee, was in full compliance with Rule 166 — A(e).

There are many cases reported that follow the rule that if the original promissory note is not attached to a motion for summary judgment or to an affidavit in support of such motion, then a sworn or certified copy must be attached to such motion or affidavit. See Perkins v. Crittenden, 462 S.W.2d 565 (Tex.1970). There is an absence of cases, however, with one or two exceptions, where the courts have defined what constituted a sworn copy of a promissory note. In our opinion, when a photographic copy of a promissory note is attached to an affidavit in which the affiant swears that the attached note is a true and correct copy of the original note, then in such event the note becomes a sworn exhibit and is in full compliance with Rule 166— A(e). Appellants’ first point is overruled.

In their second point appellants contend that the summary judgment evidence before the court raised material fact issues. In opposition to appellee’s motion for summary judgment appellants filed affidavits in which each of them stated that Hudson, acting for the bank, explained to appellants that Curtis would have sole responsibility for payment of the note, and that the bank would not look to either of appellants for repayment; that appellants believed Hudson’s statements to be true, relied upon them, and signed the note because they were induced to do so by the bank’s agent, Hudson; that neither of the appellants ever received the proceeds of the note nor any cattle purchased with the proceeds. Appellants say the fact question of fraud in the inducement is raised and, therefore, summary judgment is improper and error. We agree.

Appellants rely upon Art. 3.306(2), Texas Business and Commerce Code, Dallas Farm Machinery Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233 (1957), and Berry v. Abilene Savings Association, 513 S.W.2d 872 (Tex. Civ.App — Eastland 1974, writ ref’d n. r. e.). Art. 3.306(2) provides:

“Unless he has the rights of a holder in due course any person takes the instrument subject to
“(2) All defenses of any party which would be available in an action on a simple contract.”

The Dallas Farm Machinery case holds that parol evidence is admissible to show fraud in the inducement of a written sales contract. Berry holds that under the fact situation of that case parol evidence was admissible to show that the maker of a note was induced by the false and fraudulent representations of the payee to sign the promissory note. Berry cites with approval Viracola v. Dallas International Bank, 508 S.W.2d 472, 474 (Tex.Civ.App. — Waco 1974, writ ref’d n. r. e.), in which case the court held that fraud in the inducement was a good defense in a suit on a note between the original parties, and that “the exception to that rule which permits the admission of extrinsic evidence, to show that the execution of a simple contract was procured by fraud applies also in actions on notes.”

There is a long line of cases decided both before and subsequent to the enactment of the Texas Business and Commerce Code, which hold that evidence of a prior or contemporaneous oral agreement may not be used to vary or contradict the terms of a written instrument. Some of the recent cases so holding are: Texas Export Development Corp. v. Schleder, 519 S.W.2d 134 (Tex.Civ.App. — Dallas 1974, no writ); Wyatt v. National Chemsearch Corp., 447 S.W.2d 715 (Tex.Civ.App. — Waco 1969, no writ); McPherson v. Johnson, 436 S.W.2d 930 (Tex.Civ.App. — Amarillo 1968, writ ref’d n. r. e.); Martin v. Coastal States Producing Company, 417 S.W.2d 91 (Tex. Civ.App. — Eastland 1967, no writ); Kemper v. Branch, 394 S.W.2d 819 (Tex.Civ.App.— Eastland 1965, no writ); Chaplin v. Milne, 555 S.W.2d 161 (Tex.Civ.App. — El Paso 1977, no writ); 2 McCormick & Ray, Texas Law of Evidence, Sec. 1601 (2d Ed. 1956). And it is also held that the parol evidence rule is a rule of substantive law rather than a rule of evidence, and it properly precludes the enforcement of prior or contemporaneous oral agreements. Hill v. Meadows, 476 S.W.2d 705 (Tex.Civ.App. — El Paso 1972, no writ); Chaplin v. Milne, supra; 2 McCormick & Ray, supra.

However, the case at bar is similar in facts to Berry and Viracola, both of which were writ refused, no reversible error cases, and we are constrained to follow their conclusion that under Dallas Farm Machinery Co. v. Reaves, supra, together with Sec. 3.306(2), Texas Business and Commerce Code, oral evidence of fraud in the inducement of a promissory note is admissible.

A summary judgment should be granted if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex. 1970). The ultimate question is whether the summary judgment proof establishes that there is no genuine issue as to any material fact. Rule 166-A, supra. It follows that appellee has not met its burden in demonstrating that there is no genuine issue of a material fact. Gulbenkjan v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1953).

Judgment of the trial court is reversed, and the cause is remanded.


author: JAMES, Justice.

text:
    LAMPASAS FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant, v. W. Sale LEWIS, Savings and Loan Commissioner of Texas, et al., Appellees.
    No. 5767.
    Court of Civil Appeals of Texas, Waco.
    Nov. 10, 1977.

      Joe R. Greenhill, Jr., Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellant.
    Conrad Werkenthin and Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, John L. Hill, Atty. Gen., Thomas A. Rutledge, Asst. Atty. Gen., Austin, for appel-lees.
   OPINION

JAMES, Justice.

This is an appeal from an administrative order. Appellant Lampasas Federal Savings and Loan Association has perfected this appeal from the order of the Savings and Loan Commissioner of Texas (hereinafter called “the Commissioner”) entered January 27, 1976, approving the application of Southern Savings and Loan Association of Brownwood, Texas, to establish a branch office in Lampasas, Lampasas County, Texas. Said order was granted after a consolidated hearing conducted as the result of the filing of two applications for branches to serve the same, or substantially the same community. The other application, that of Lamar Savings Association of Austin, Texas, was denied, and no appeal was prosecuted from said last-named application.

The application of Southern Savings was protested by Lampasas Federal and two other savings and loan associations; however, the order granting the application of Southern Savings has been appealed only by Lampasas Federal.

Suit was instituted by Lampasas Federal as plaintiff in a District Court of Travis County, Texas, on March 12, 1976, citing as defendants therein both the Savings and Loan Commissioner and Southern Savings. The record was presented to the trial court on September 9, 1976, and argument of counsel had thereafter; whereupon the trial court on January 26, 1977, entered judgment affirming the Commissioner’s Order, from which Plaintiff-Appellant Lampasas Federal appeals. We affirm.

Appellant’s first point of error asserts that the order of the Commissioner was éntered prior to service upon all interested parties to the Commissioner’s proposal for decision, and without affording adversely affected parties an opportunity to file exceptions and present briefs in opposition to such proposal for decision in violation of Section 15, Article 6252-13a, Vernon’s Texas Civil Statutes, the Administrative Procedure Act, and hence said order was made in violation of and in excess of statutory authority. We overrule this contention.

Section 15 of Article 6252-13a, which went into effect January 1, 1976, in its pertinent parts reads as follows:

“If in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, may not be made until a proposal for decision is served on the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs to the officials who are to render the decision.”

The administrative hearing was had before a hearing examiner, a Mr. Fred Con-der, and was concluded on November 20, 1975. On January 27, 1976, the Commissioner entered the order in question approving the application of Southern Savings to establish and operate a branch office in Lampasas, Texas.

In response to interrogatories, Appellee W. Sale Lewis, the Commissioner testified that he did not personally preside at the administrative hearing, but that Mr. Fred Conder, a hearing officer for the Savings and Loan Department presided at the hearing; that he (the Commissioner) did make periodic appearances to observe how the hearing was being conducted and the demeanor of the witnesses and parties; that there was a lot of the testimony that he did not personally hear; but that he personally read the entire transcript of the hearing prior to issuing his order of January 27, 1976; that he did not look at each exhibit, but he reviewed “only those exhibits or portions thereof necessary to clarify the testimony offered by the witness”; that he personally reviewed the entire application of Southern Savings, as amended, the written protest of each protestant to Southern Savings’s application, and the motion for continuance filed by Lampasas Federal.

In our opinion said Section 15 here-inabove quoted from does not apply to the case at bar. Here the Commissioner is the only agency official charged with the responsibility of rendering a final decision. So the question is: Has the Commissioner “read the record” sufficiently to dispense with the requirement of serving the proposal for decision upon all parties, giving them an opportunity to file exceptions and present briefs? Applying Section 15 to the case at bar as we understand it, if the Commissioner has “read the record” it is not necessary for the proposal for decision to be served on the parties. Here, the Commissioner testified that he personally read the entire record, and “reviewed only those exhibits or portions thereof necessary to clarify the testimony of the witnesses.” Under these facts we are of the opinion and hold that the Commissioner has “read the record” Within the meaning of Section 15, and thereby the necessity was dispensed with insofar as serving the proposal for decision upon the parties. Appellant’s first point is accordingly overruled.

Next, Appellant complains that the Commissioner erred in admitting into evidence Southern Savings’s Exhibits Numbers 4 and 5, on the ground that such exhibits are incompetent hearsay, and were not authenticated by a qualified witness. We overrule this contention. Southern Exhibit No. 4 is a compilation of information from the deed of trust records of Lampasas County. Southern Exhibit No. 5 is a summary of that compiled information. This information was compiled and summarized by a Mrs. Judy Boss, an employee of the law firm representing Southern Savings, and covered the period from January 1, 1973 through October 7, 1975. These exhibits were offered into evidence by Mrs. Boss, who personally compiled the data and prepared the summary. The compilation (Exhibit 4) included the records for the entire County and involved every loan, including renewals and extensions. On both direct and cross-examination Mrs. Boss exhibited complete familiarity with the information and exhibits, and was clearly qualified as a witness insofar as the compilation and summary were concerned.

In the first place, the instruments themselves from which the compilation was made, that is, the recorded instruments in the deed of trust records, are admissible, Article 3726, Vernon’s Texas Civil Statutes, and the mere recording of the instruments serves as notice of the facts actually exhibited by them. Miles v. Martin (1959), 159 Tex. 336, 321 S.W.2d 62, 69. Therefore, since the underlying records of the summary are admissible, the next question is whether the summary (Southern Exhibit No. 5) was properly admissible. Our Supreme Court in Black Lake Pipe Line Co. v. Union Construction Co., Inc. (Tex.1976) 538 S.W.2d 80 at pages 92 through 95, has laid down rules governing the admissibility of summaries prepared from underlying records. As applied to the case at bar, suffice it to say that Southern Savings (in order to render the summary admissible) had the burden to show (1) that the underlying records were voluminous, (2) that such records were admissible, and (3) that such records were accessible to the opposing party, Lam-pasas Federal. Trial courts have wide discretion in determining whether summaries are necessary to expedite the trial. Black Lake, supra; Texas Warehouse Co. of Dallas, Inc. v. Spring Mills, Inc. (Waco CA 1974) 511 S.W.2d 735, n.r.e.

In our opinion, Southern Savings laid a proper predicate for the introduction of the compilation and summary in question, in accordance with the rules laid down in Black Lake, and we hold that such exhibits were properly admitted in evidence.

Appellant further asserts error in the Commissioner’s Order, saying that the ultimate findings in said order are not reasonably supported by substantial evidence. We overrule this contention. Pursuant to Section 2.08 of Article 852a, Vernon’s Texas Civil Statutes, the Savings and Loan Act, the Commissioner is authorized to approve an application for a branch office of a savings and loan association if he shall affirmatively find: (1) the proposed operation will not unduly harm any association operating in the vicinity of the proposed location; (2) there is a public need for the proposed branch office, and (3) the volume of business in the community in which the proposed branch office will conduct its business is such as to indicate a profitable operation to the association within a reasonable period of time.

The hearing before the hearing examiner required two full days which produced 369 pages of testimony plus a number of exhibits which included statistical data and charts. A number of witnesses, both lay and expert on both sides, testified, some of whom gave testimony favorable to Southern Savings’s application, and others of whom gave testimony unfavorable to said application. The record presented before the hearing examiner was offered in evidence to the trial court by agreement of counsel, plus written interrogatories propounded to the Commissioner and his answers thereto hereinabove referred to concerning the extent of his examination of the record.

The Commissioner’s Order in question granted the application of Appellee Southern Savings to establish a branch office in the City of Lampasas, Texas, on the basis that there was a public need for the proposed branch office, that the volume of business in which the proposed branch office will conduct its business is such as to indicate a profitable operation to Southern Savings within a reasonable period of time, and that the operation of the proposed branch office will not unduly harm any existing associations within the vicinity of the proposed location in Lampasas, Lampa-sas County, Texas. Said order is fourteen pages in length, seven of which pages (pp. 5 to 11) are devoted to stating findings and conclusions in support of the application in question.

Without detailing the evidence, from our review of the record, suffice it to say that we are of the opinion that the Commissioner’s Order is reasonably supported by substantial evidence, and we so hold. See Lewis v. Jacksonville Bldg. and Loan Assn. (Tex.1976) 540 S.W.2d 307; Gerst v. Nixon (Tex.1966) 411 S.W.2d 350; Gibraltar Sav ings and Loan Assn. v. Falkner (Tex.1963) 371 S.W.2d 548.

Finally, Appellant contends that the Commissioner’s Order was not rendered within sixty (60) days from the date the hearing was closed in violation of Section 16(d) of Article 6252-13a, the Administrative Procedure Act, that said Section 16(d) is mandatory, and therefore said order is invalid. We do not agree.

The hearing in this case before the hearing examiner was closed on November 20, 1975. The Commissioner’s Order was rendered on January 27, 1976, sixty-eight (68) days after the hearing was closed.

Section 16(d) reads as follows:

“The final decision or order must be rendered within 60 days after the date the hearing is finally closed. In a contested ease heard by other than a majority of the officials of an agency, the agency may prescribe a longer period of time within which the final order or decision of the agency shall be issued. The extension, if so prescribed, shall be announced at the conclusion of the hearing.”

Under the rules and guidelines laid down by our Supreme Court for determination of whether a statutory provision is mandatory or directory, we are of the opinion and hold that the sixty-day provision in Section 16(d) is directory. At least insofar as it applies to the order in question issued eight days after the expiration of the 60-day period, no harm has been shown. Lewis v. Jacksonville Building and Loan Assn. (Tex.1976) 540 S.W.2d 307; Lewis v. Nacogdoches Savings and Loan Assn. (Tex.1976) 540 S.W.2d 313; Federal Crude Oil Co. v. Yount-Lee Oil Co. (1932) 122 Tex. 21, 52 S.W.2d 56.

All of Appellant’s points and contentions are overruled. Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: REYNOLDS, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION v. Guadalupe VILLASANA.
    No. 8819.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 14, 1977.

      Crenshaw, Dupree & Milam (Cecil Kuhne), Lubbock, for appellant.
    Mark Smith & Associates (Mickey J. Blanks), Lubbock, for appellee.
   REYNOLDS, Justice.

Texas Employers’ Insurance Association seeks the reversal of a judgment, entered on a jury’s verdict, awarding Guadalupe Villasana workers’ compensation for total and permanent disability. No reversible error is presented in T.E.I.A.’s attacks on the jury’s findings that Villasana was injured as the result of an accident in the course of his employment, or on the instruction to the jury concerning an injury in the course of employment, or on the admission of the medical records. Affirmed.

Guadalupe Villasana was employed by Farmers’ Co-op Compress in Lubbock County, where he had worked for some thirteen years, on 26 January 1973. On that afternoon, Villasana took a break as a regularly scheduled occurrence. He went to the foreman’s office, had a drink of water and sat down to smoke a cigarette. Other employees were in the foreman’s office during the break, but testimony at the trial varied with respect to what transpired.

Villasana testified that he was seated in the foreman’s chair which had rollers on it. When he stood at the sound of the whistle ending the break, his foot, which was on top of one of the rollers, slipped off, and the chair rolled backward. Losing his balance, Villasana struck his head on the corner of a cabinet, producing a little bump over his right eye. Villasana acknowledged that he had to have become unconscious because the next thing he remembered was sitting in a chair on the dock when an ambulance arrived.

Francisco Sanchez, a co-worker of Villa-sana, was in the office during the break. His testimony was that Villasana did not fall during his presence, but as he (Sanchez) was stepping outside the office, Villasana, who he saw on the floor, was taken from the office to the dock and the ambulance arrived.

The foreman, George Thomas, whose presence in the office at the time Villasana said he fell was disputed by both Villasana and Sanchez, testified that Villasana was seated on the floor, and that there was no sound of a person falling or a chair being pushed. Thomas said that he saw Villasana lying on the office floor, “his eyes was walling around in his head” and “he was trying to swallow his tongue.” Upon close observation, Thomas saw no sign of an injury. Thomas took Villasana to the dock and called an ambulance.

Villasana refused to leave in the ambulance. Rex McKinney, the compress manager, looked for but saw no evidence of an injury and took Villasana home, directing him to go to University Hospital and to see Dr. Knoerr. When Villasana arrived home, Mrs. Villasana said she saw the little bump on his right eye and, because Villasana could not stand the pain, she took him to the hospital.

Villasana returned to work the next morning. Several days later in the foreman’s office just before going to work, he “passed out” and fell, suffering a big knot around his right eye. Thomas again noticed Villasana’s eyes “walling around in his head” and that “he was trying to bite or swallow his tongue.” Villasana was taken to the hospital and was seen by Dr. Knoerr.

With some absences because of pain, Vil-lasana worked through the cotton season. His work on another job was interrupted for hospitalization. He worked at the compress the following season, but has not worked since. He accounted for the hospitalizations he could remember and described his physical impairments, including double vision, blindness in his right eye, deafness, and loss of smell, taste and strength.

Medical evidence from Dr. William Gordon was introduced through his deposition, his answers to written interrogatories, and his medical records, to which were attached medical records made by third parties, pertaining to Villasana. Dr. Gordon first saw Villasana on 14 May 1973. Villasana told the doctor about two falls at the compress. Villasana’s history included the drinking of Ethanol, a type of alcohol, which, Dr. Gordon said, can bring on convulsive seizures. The doctor admitted that when he initially examined Villasana, he felt Villasana might have had grand mal epilepsy, which would be consistent with Villasana’s passing out and sight problems. After examinations and tests, it was Dr. Gordon’s opinion that, although the date he originally received was not 26 January 1973, it would suffice, and the described blow to the frontal region could have, within reasonable medical probability, caused Villasana’s physical impairment. Etiology furnished no conclusive diagnosis for Villasana’s complaints, but it was Dr. Gordon’s opinion that Villasana suffered physical impairment as a result of the injury. Dr. Gordon concluded, after consultation with other physicians, that the physical findings could be adequately explained on the basis of trauma setting the events in motion.

In answering the first three special issues, the jury found that: Villasana received an injury on or about 26 January 1973; the injury was the result of an accident; and the injury occurred in the course of employment. These findings are attacked in T.E.I.A.’s first six points of error on the grounds of no evidence and factually insufficient evidence.

Testing the efficacy of the “no evidence” points, we have considered the evidence favorable to the answers to the respective issues and have disregarded all evidence which is adverse to the favorable findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 285 S.W.2d 609, 613 (1950). Gauging the validity of the factually insufficient evidence points, we have considered and weighed all of the evidence, both supporting and contrary to the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). In doing so, we considered Dr. Gordon’s testimony, to which T.E.I.A. objected for the reason that it was not based on reasonable medical probability, only after our review of it revealed that its substance established a reasonable probability of causal connection between Villasana’s 26 January 1973 injury and his present physical condition. See Western Casualty and Surety Company v. Gonzales, 518 S.W.2d 524, 526 (Tex.1975).

While there is no fixed rule of evidence by which Villasana had to establish the fact of his injury, Select Insurance Company v. Patton, 506 S.W.2d 677, 682 (Tex.Civ.App. — Amarillo 1974, writ ref’d n. r. e.), he had to come forward with competent evidence which, together with the surrounding circumstances, persuaded the jury that he was injured. Cf. Aetna Insurance Company v. McDonald, 520 S.W.2d 945, 950 (Tex.Civ.App. — Amarillo 1975, no writ); Travelers Insurance Company v. Wade, 373 S.W.2d 881, 885 (Tex.Civ.App. — Dallas 1963, writ ref’d n. r. e.). In order to show that his injury was accidental, Villasana was required to produce sufficient proof of an undesigned untoward event traceable to a definite time, place and cause. Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex.1972). To establish that his accidental injury occurred in the course of his employment, Villasana could show that the injury arose out of, and was causally connected with, his employment, either through its activities, its conditions, or its environments, Garcia v. Texas Indemnity Ins. Co., 146 Tex. 413, 209 S.W.2d 333, 336 (1948), which may include an act of a personal nature that, if reasonably done for his health and comfort, was incidental to his service and, thereby, arose out of his employment. Insurance Company of North America v. Estep, 501 S.W.2d 352, 354 (Tex. Civ.App. — Amarillo 1973, writ ref’d n. r. e.).

Considering only the evidence favorable to the jury’s findings, we find there is some evidence of probative force to support the findings that Villasana proved the disputed elements of his cause of action. In considering the factual sufficiency of the evidence, we are cognizant that it was for the jury, as the finder of facts and privileged to believe all or part or none of the testimony of any one witness, to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve the conflicts and inconsistencies in the testimony. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex.Civ.App. — Amarillo 1977, writ ref’d n. r. e.). After considering all of the evidence with due regard for the jury’s role, we cannot say that the evidence to support the findings is so weak, or the contrary evidence is so overwhelming, that the findings should be set aside. Accordingly, T.E. LA.’s first six points are overruled.

The subject of T.E.I.A.’s seventh point is the trial court’s jury instruction reading:

You are instructed that an employee may in the course of his employment do any act of a personal nature reasonably necessary to his health and comfort and an injury sustained in the performance thereof is sustained in the course and scope of employment.
You are further instructed that an employee may have an accidental injury due to a cause not related to his employment, but if the injury would not have occurred except for the performance of his employment, then such an injury is sustained in the course and scope of employment.

The instruction was designed to furnish the jury guidance in determining whether, under the peculiar circumstances, Villasana’s injury, if any, was sustained in the course of his employment. The first paragraph is a paraphrasing of the principle followed in Insurance Company of North America v. Estep, supra, at 354, and the second paragraph follows the test used in Garcia v. Texas Indemnity Ins. Co., supra, 209 S.W.2d at 336.

T.E.LA.’s point merely adopts, without quoting with the specificity demanded of a point of error, the objections T.E.I.A. lodged to that portion of the court’s charge, and embraces no less than five universal contentions that the instruction is incorrect, too broad, too general, is not limited to the facts of this case, and is incomplete. By advancing more than one specific ground of error involving more than one legal question, the point is multifarious and, usually, would not be entitled to consideration. American Biomedical Corporation v. Anderson, 546 S.W.2d 112, 115 (Tex.Civ.App. — Amarillo 1977, no writ).

Notwithstanding, we have looked to the accompanying argument to determine if it centers around a single legal question. T.E. I.A. argues, from the view of the evidence it unsuccessfully urged under its first six points of error, that the “instruction is a wholly inadequate, incomplete and misleading instruction on the law” and “clearly constituted a comment on the evidence and is without any support whatsoever in the evidence.” We have not been favored with the citation of any authority bearing on any of the alleged faults of the instruction. Thus, the presentation is not sufficient to direct our attention to the error T.E.I.A. relies upon with any degree of certainty, Buie 418, Texas Rules of Civil Procedure; and, absent the proper development of the specific error claimed, we are not disposed to condemn the instruction. The seventh point is overruled.

Dr. Gordon had referred Villasana to other physicians for consultation and, with the benefit of their input and his own examinations and tests, arrived at his testimonial opinions expressed through his deposition and his answers to written interrogatories. Attached to Dr. Gordon’s deposition and admitted in evidence were medical records made by third parties. By its eighth, and last, point, T.E.I.A. complains of the admission of Dr. Gordon’s testimony and the third party records. The complaint is two-fold: Dr. Gordon’s testimony was not based upon reasonable probabilities, and the statements of history and opinions contained in the attached records of the third parties were hearsay.

We previously determined that the substance of Dr. Gordon’s testimony, although sometimes stated in terms of probabilities, expressed a reasonable medical probability. Dr. Gordon’s reference to Vil-lasana’s case history did not render his testimony, which clearly was not based wholly upon hearsay, inadmissible. Slaughter v. Abilene State School, 21 Sup.Ct.Jour. 35, 36 (October 26, 1977).

The medical records of the third parties were hearsay. Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298, 305 (Tex.1962). We have carefully reviewed the records to evaluate the impact of the hearsay to which specific objection was made in relation to the admissible medical evidence. From that review, we conclude that the admission of the records in evidence amounted to no more than harmless error, for we are not prepared to hold that the admission was reasonably calculated to cause and probably did cause the rendition of an improper verdict. Rule 434, T.R.C.P. The last point is overruled.

The judgment is affirmed.


author: RAY, Justice.

text:
    Dan CHRISTIE, Appellant, v. Eleanor PRICE, Appellee.
    No. 8488.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 15, 1977.
    Bob Houser, Plano, for appellant.

      W. W. Price, Jr., Olney, J. Patrick Garrett, Houston, for appellee.
   RAY, Justice.

This is a venue case. Eleanor Price, ap-pellee (plaintiff), brought suit in Young County against appellant (defendant), Dan Christie, seeking recision of the sales to her of interests in partnerships known as the “Mustang Joint Venture” and the “Grayson County Joint Venture.” Appellee alleged that appellant had fraudulently induced her into purchasing unregistered securities. Appellant Christie states that he is entitled to be sued in Dallas County where he has his residence and principal place of business.

The trial court overruled the plea of privilege and Appellant Christie has perfected this appeal. Appellant submits one point of error for our consideration.

Appellant’s point of error is as follows: “The Trial Court erred in overruling Appellant’s Plea of Privilege because there was no evidence introduced in the Trial Court and therefore the evidence was insufficient to support the order overruling Appellant’s Plea of Privilege.”

Appellant contends that the order overruling appellant’s plea of privilege was a default judgment in that appellant and his attorney did not appear at the hearing because they did not receive notice of the hearing. Further it is asserted by appellant that no evidence was introduced at the hearing and therefore no statement of facts exists.

The judgment of the trial court will be affirmed. While we recognize that it may be difficult under the circumstances outlined by appellant to produce a record to substantiate his claims, we do not believe that he has exhausted the available remedies.

“When the court in its judgment finds generally for one of the parties, but no specific findings of fact and conclusions of law are requested and none are filed, and no statement of facts is brought forward on appeal, there exists little basis for review, save in a situation where there is fundamental error or the court exceeded its jurisdiction in rendering the decree at all. In such a fact situation, the appellate court presumes that the judgment was supported by evidence offered upon the issues raised by the pleading or tried by express or implied consent.” 4 McDonald’s, Texas Civil Practice, Sec. 16.10(a), p. 28. This Court stated in Adams v. Corbin, 301 S.W.2d 209 (Tex.Civ.App.Texarkana 1957, writ dism’d), that when the trial court has overruled the plea of privilege without making findings of fact or conclusions of law and the case is tried without a jury, the judgment should be affirmed if there is sufficient evidence to support it upon any lawful theory and every issue sufficiently raised by the testimony must be resolved in support of the judgment.

In the absence of a statements of facts, we must presume that the evidence supports the finding. Guthrie v. National Homes Corporation, 394 S.W.2d 494 (Tex. 1965).

There is no indication in the record that appellant attempted to obtain a statement of facts pursuant to Rule 377 or 378, Tex.R.Civ.P. Further, there is no indication in the record that appellant made a request for a court reporter, in accordance with Tex.Rev.Civ.Stat.Ann. art. 2324 (Supp. 1976-1977), to attend all sessions of court in conjunction with this case and to take shorthand notes of the testimony offered. It behooves all attorneys who want a record of the proceedings to immediately file such a request along with the first pleadings or other instruments filed in the case.

We find nothing in the transcript which indicates that appellant made a request for a bill of exceptions pursuant to Rule 372, Tex.R.Civ.P. Rule 372 allows any party who is dissatisfied with a ruling or an action by the court to embody his dissatisfaction in a written bill of exceptions. The refusal by the court to allow a party to make such a bill is reversible error if timely made and presented. State v. Biggers, 360 S.W.2d 516 (Tex.1962); In re Marriage Of D_, 511 S.W,2d 606 (Tex.Civ.App.Amarillo 1974, no writ).

In the present case there is nothing in the record to indicate that a court reporter was not present at the hearing or that appellant made any request of the official court reporter of the trial court for a statement of facts.

Appellant has not shown that he could not obtain a statement of facts by other means. Ordinarily, an appellant is not entitled to a reversal on the ground of the unavailability of a statement of facts unless he shows that he has been deprived of the statement of facts through no fault or negligence of his own and that he attempted without success to obtain a condensed statement in narrative form under Rule 377, Tex.R.Civ.P., or an agreed statement under Rule 378, Tex.R.Civ.P. Phillips v. Phillips, 532 S.W.2d 161 (Tex.Civ.App. Austin 1976, no writ).

There is nothing in the record to indicate that appellant failed to receive notice of the hearing on the plea of privilege. In the absence of a contrary showing in the record, appellee is entitled to a presumption there was adequate notice. Farmer v. Cassity, 252 S.W.2d 788 (Tex.Civ.App.Beaumont 1952, no writ).

Appellant’s point of error is overruled. The judgment of the trial court is affirmed.


author: WALTER, Justice.

text:
    ANDERSON DEVELOPMENT COMPANY, INC., et al., Appellants, v. PRODUCERS GRAIN CORPORATION, Appellee.
    No. 5069.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 17, 1977.
    Rehearing Denied Dec. 8, 1977.

      James H. Milam, Crenshaw, Dupree & Milam, Lubbock, Graddy Tunnell, La Font, Tunnell, Formby, La Font & Hamilton, Plainview, for appellants.
    Don M. Dean, Underwood, Wilson, Sutton, Berry, Stein & Johnson, Amarillo, Lucian E. Morehead, Morehead, Sharp, Tisdel & White, Plainview, for appellee.
   WALTER, Justice.

Producers Grain Corporation recovered a judgment against Anderson Development Company, Inc. also known as and doing business as Anderson Cattle Company and Anderson Cattle Company, Inc. for $286,-760.54 on a contract for the sale of cattle. Anderson has appealed.

On December 6,1974, Producers, as seller, entered into a contract for the sale of 2,000 head of cattle with Anderson, as purchaser. The contract stipulated delivery to Anderson and payment by draft on Anderson through the Frost National Bank of San Antonio, Texas.

On December 11, 1974, Anderson entered into a contract with American Beef Packers for the sale of 1,506 head of cattle that Anderson purchased from Producers. Producers did not participate in the negotiation of this contract. After Anderson and American Beef executed the contract, Russell Center of Anderson showed the contract to Grover Phillips of Producers. When asked by Center if American Beef could receive the cattle and send checks to Producers, Phillips replied, “That’s fine”.

The 1,506 head of cattle were delivered to American Beef. American Beef’s checks for the cattle were dishonored when presented for payment.

On January 7, 1975, American Beef filed petition seeking relief under Chapter XI of the Bankruptcy Act. On February 7, 1975, Producers and Anderson entered into a non-waiver agreement whereby any actions taken by Producers against American Beef in the bankruptcy proceeding would not be deemed an election of remedies or affect any rights which Producers has against Anderson. The agreement also provided:

“Producers Grain Corporation agrees, however, that any sum or sums which it may collect by or through the aforesaid actions shall be taken and held by it as a credit on any obligation of Anderson Development Company, Inc, . . . ”

Producers’ claim in bankruptcy was approved in the amount of $560,109.21. Payment was to be made according to the Plan of Arrangement approved by Producers, 55 percent of said claim in cash ($308,060.06) and a deferred payment of the balance of 45 percent.

The only issue submitted and the jury’s answer and the court’s instructions are as follows:

“Do you find from the preponderance of the evidence that on or about the 11th day of December, 1974, the Producers Grain Corporation, the American Beef Packers, Inc. and the Anderson Cattle Company each and all agreed that the Producers Grain Corporation would substitute the obligation of the American Beef Packers, Inc. to pay for a thousand five hundred and six head of Holstein steers instead of the obligation of the Anderson Cattle Company to pay for them.
ANSWER: ‘YES’ or ‘NO’
ANSWER: NO
You are instructed that to effectuate the substitution of a new obligation between the parties for the old obligation there must be consent and agreement of all parties that the new obligation would operate as a discharge of the old obligation of the Anderson Cattle Company to pay for the cattle. It is not necessary that such agreement and consent to accept the new obligation instead of the first obligation be in writing or that it be evidenced by express words but may be proved from the acts and conduct of the parties and other facts and circumstances in evidence.”

In its judgment, the trial court ordered Producers to apply any payment under the Plan of Arrangement first to the cost of the court, then to interest accrued under the judgment and thereafter to the payment of the principal sum of the judgment. Upon payment in full of the judgment, Producers must assign to Anderson all of its then existing rights under the Plan of Arrangement.

Anderson’s contention the evidence establishes a valid accord and satisfaction as a matter of law cannot be sustained. In George Linskie Company v. Miller-Picking Corporation, 463 S.W.2d 170 (Tex.1971), the court said:

“The burden was upon defendant as the movant for a partial summary judgment to conclusively establish the affirmative defense of accord and satisfaction. The tests in cases of this nature are set forth in Jenkins v. Henry C. Beck Company, 449 S.W.2d 454 (Tex.Sup.1970); H. L. ‘Brownie’ Choate, Inc. v. Southland Drilling Co., 447 S.W.2d 676, 679-680 (Tex. Sup.1969); and Industrial Life Insurance Company v. Finley, 382 S.W.2d 100, 104-106 (Tex.Sup.1964). In the Beck case, in order to support a summary judgment of accord and satisfaction, this Court held:
‘There must be an unmistakable communication to the creditor that tender of the lesser sum is upon the condition that acceptance will constitute satisfaction of the underlying obligation. It has been said that the conditions must be made plain, definite and certain * * * ; that the statement accompanying the tender of a sum less than the contract price must be so clear, full and explicit that it is not susceptible of any other interpretation.’ ”

The satisfaction in an accord and satisfaction is generally the performance of the new promise. However, a promise alone may be accepted as satisfaction. Ferguson-McKinney Dry Goods Co. v. Garrett, 252 S.W. 738 (Tex.Com.App.1923, holding approved). In that event, the intention of the parties is of major importance. In McCarty v. Humphrey 261 S.W. 1015 (Tex. Com.App.1924, jdgmt adopted), the court recognized:

“ . . . accord and satisfaction, being dependent upon agreement, only occurs where the parties mutually assent to it. Their intention is a controlling element. In such a transaction ‘there can be no agreement expressed or implied when both parties have no intention to make it, or when one has but the other has not.’ ”

The burden of proof in establishing the alleged defense of accord and satisfaction is on the party asserting it. The jury found against Anderson on conflicting evidence, therefore, Anderson’s burden in this court is to show the evidence conclusively establishes accord and satisfaction. We hold Anderson has not discharged its burden.

If the satisfaction was to be the actual performance by American Beef, the executory agreement of accord was breached by nonperformance. An unexecuted accord cannot be a defense to a suit on the original contract. Upon default of the accord, the creditor may sue either on the accord or on the original contract. Alexander v. Handley, 136 Tex. 110, 146 S.W.2d 740 (1941).

Appellants’ points 8 and 9 are as follows:

“POINT EIGHT
The Trial Court erred in admitting, over objection of defendant, testimony of Grover Phillips that nothing was said by Russell Center or Grover Phillips as to whether the checks of American Beef would be in payment of the cattle.
POINT NINE
The Trial Court erred in admitting, over objection of defendant, testimony of Grover Phillips that he did not tell Russell Center that they would not look to defendant for payment of the cattle and that he and Russell Center did not discuss release or forgiveness or anything of that nature.”
Phillips was asked:
“Q Was anything said by Russell Center to you or by you to Russell Center as to whether the checks from American Beef would be in payment of the cattle?”
And the record shows:
“A No sir.
MR. MILAM: May we have the same objection on that question?
THE COURT: Yes sir, you may have the same objection.
MR. MILAM: May we have a running objection on it?
THE COURT: Yes sir.”

Phillips also testified that he did not discuss release or forgiveness or anything of that variety; did not discuss the substitution of American Beef for Anderson; and did not discuss if and when American Beef sent the cheeks Anderson would be relieved of paying for the cattle.

It is difficult to determine what appellants’ objection is. “The same objection on that question” and a “running objection” are general objections where several objections have been made. The record shows appellant had previously made objections that the testimony was argumentative, leading and suggestive, improper and invaded the province of the court and jury.

Producers contends several of the matters complained about were elicited without objections. For example, Phillips was asked:

“Q When Russell Center came from the coffee room 50 feet back to your office and handed you the copy of Plaintiff’s Exhibit No. 2, tell this Jury everything that was said in that conversation.”

And he gave the following answers:

“A Mr. Center said that he had sold 1,500 head of cattle to American Beef Packers. He gave me the copy of this document and asked if it would be all right if American Beef Packers sent the check to us and I said ‘This will be fine’, and that's the conversation.
Q Was anything else said?
A No sir.”

It does not appear from the record an objection was made to this testimony. The substance of this testimony is not set out in appellants’ brief with reference to the pages of the record where same may be found as required by Rule 418, T.R.C.P. This testimony is substantially the same testimony as that set out in appellants’ points of error.

We hold Anderson has not discharged its burden of showing the testimony set forth in its points of error was subject to the objections made. Also, it has failed to show that any error, if any, in admitting such testimony was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R. C.P.

Appellants’ point number 10 is as follows:

“The Trial Court erred in sustaining plaintiff’s objections and refusing to permit cross examination of plaintiff’s witness, Bill Nibler, by defendant as to whether it was the witness’s understanding of the agreement that it was the obligation of American Beef to pay for the cattle instead of Anderson Cattle Company and that this was the agreement by Grover Phillips, manager of plaintiff’s feed yard.”

The witness could testify what was said by the parties, but his understanding and conclusions were not competent because his opinion as to the agreement invaded the province of the jury.

In Terry v. Witherspoon, 255 S.W. 471 (Tex.Civ.App.—Amarillo 1923, no writ), the court said:

“ . . . Witherspoon and Kinney’s statements as to what they concluded or understood from the conversation with W. H. Terry concerning the extent of their authority was not admissible, and in giving their understanding from what was said they invaded the province of the jury, and all such statements must be disregarded in determining the effect of the evidence. Shaw v. Gilmer (Tex.Civ. App.) 66 S.W. 679; Biering v. Wegner, 76 Tex. 506, 13 S.W. 537; Buzard v. McAnulty, 77 Tex. 438, 14 S.W. 138 .. . ”

In Shaw v. Gilmer, 66 S.W. 679 (Tex.Civ. App.1902, no writ), the court said:

“Inasmuch as we will have to reverse the judgment for the reason just stated, we deem it proper to say that if the cause had been tried before a jury the admission of the testimony of Cotulla, complained of in the second assignment of error, as to his understanding of how the account should run, was such an error as would require a reversal of the judgment. Such testimony was simply a conclusion of the witness. His testimony should have been limited to facts within his knowledge, and as to what conclusions should be drawn from them would be for the jury.”

We have considered the entire record and hold the finding to special issue number one is not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We find no merit in appellants’ point the court erred in submitting special issue number one over its objection that the issue did not submit the ultimate and controlling issue. Hough v. Grapotte, 127 Tex. 144, 90 S.W.2d 1090 (1936).

Appellants also contend the court erred in refusing to submit its instruction to the effect an agreement can either be made expressly or by implication, and that an implied agreement is where the acts of the parties are such as to indicate a meeting of the minds as implied and evidenced by their course of dealings. We find no merit in this contention. The instruction given by the court was proper under Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422 (1953).

In its final point of error, Anderson contends that the full amount of Producers’ claim in bankruptcy, included in the Plan of Arrangement, should be credited to the judgment. The Plan of Arrangement is only relevant to this cause of action for determining the amount of credit due Anderson for “any sum or sums” which Producer “may collect”.

The word “sum” is most commonly used to mean “money” and is lexically defined as such. Unless a different meaning plainly appears in the context in which it is used, its application is restricted to money. U. S. v. Van Auken, 96 U.S. 366, 24 L.Ed. 852 (1878); 83 C.J.S. Sum, p. 787. The word “money” ordinarily refers to cash or coin. Stewart v. Selder, 473 S.W.2d 3 (Tex.1971); Baker & Taylor Drilling Co. v. Blanchard Drilling Co., 363 S.W.2d 818 (Tex.Civ.App. —Amarillo 1962, no writ).

The nonwaiver agreement, therefore, allowed a credit for any “cash” which Producer “may collect”. When used in this context, “collect” is interpreted as that which is actually received in cash. Board of Commissioners of Okfuskee County v. Hazelwood, 79 Okl. 185, 192 P. 217 (1920); Power v. Fleming County, 99 Ky. 200, 35 S.W. 541 (1896); OK Bakery v. Morten Milling Co., 141 S.W.2d 436 (Tex.Civ.App. — Dallas 1940, no writ).

At the time of judgment, the full amount of Producers’ claim in bankruptcy was not “collected”. The court properly denied Anderson’s motion for credit of the entire claim in bankruptcy.

We have considered all of appellants’ points of error and find no merit in them. They are overruled.

The judgment is affirmed.


author: McDONALD, Chief Justice. JAMES, Justice,

text:
    CITY OF HOUSTON et al., Appellants, v. William Leo BLACK, Appellee.
    No. 5792.
    Court of Civil Appeals of Texas, Waco.
    Nov. 17, 1977.
    Rehearing Denied Dec. 15, 1977.

      Otis King, City Atty., Frank L. Mauro, Asst. City Atty., Houston, for appellants.
    G. P. Hardy, II and John Milutin, Harvill & Hardy, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants City of Houston and its employee Roberts, from $41,234. judgment against them, in a rear-end collision case.

Plaintiff Black sued defendants City and Roberts alleging defendant Roberts driving a City truck struck him in the rear while he was stopped at a stop sign; causing damage.

Defendants answered plaintiff was guilty of contributory negligence; and the City further answered plaintiff had not complied with its ordinance requiring a verified written notice of injury be filed with the City Council within 90 days detailing the injury and damages sustained.

Plaintiff by second amended petition plead the City had waived and/or was es-topped to assert the failure of plaintiff to file verified written notice of injury.

Trial was to a jury which found:

I) 8) Roberts guilty of several acts of negligence proximately causing the collision.
9) The City, by the conduct, of City Attorney Charles Williams, in regard to the claim of plaintiff Leo Black, waived strict compliance with Section 11 of the Charter of the City.
10)' City Attorney Williams led Leo Black-to believe it was not necessary to verify the written claim filed by Black.
II) The conduct of City Attorney Williams in leading Black to believe that it was not necessary to verify the written claim filed by Black, lulled Black into a sense of security.
12) Such feeling of security was the cause of the failure of Black to verify the written claim filed by Black.
13) “Do you find from a preponderance of the evidence that an ordinary prudent person would have concluded from the circumstances that the City Attorney was waiving Section 11 of the Charter of the City of Houston?
Answer: We do not".
14) 19) found plaintiff was not contribu-torily negligent.
21) Fixed plaintiff’s damages at a) $10,-000. pain and suffering; b) $5,000. future pain; c) $3,000. loss of earnings; d) $5,000. future loss of earnings; e) $4,000. physical impairment; f) $5,000. future physical impairment; g) $7,500. future medical expense.

The trial court rendered judgment for plaintiff on such verdict plus $1,734. which had been agreed on by the parties as plaintiff’s medical bills.

Defendants appeal on 15 points. The City contends in points 1-5 that the trial court erred in overruling its motion for instructed verdict or its motion for judgment non obstante veredicto because:

1) Plaintiff did not comply with Section 11 of the City Charter which requires that a claim be verified.
2) There is no evidence the City waived strict compliance of its charter provisions.
3) The jury found the City was not es-topped from asserting its charter notice provision.
The City and Roberts in points 6-15 assert there is no evidence or insufficient evidence to sustain the jury’s finding of damages in Issue 21c thru g, and that the judgment is excessive in the sum of $24,-500.

Section 11 of the City of Houston Charter provides that before the City shall be liable for damages for personal injuries of any kind, the person injured shall give the May- or and City Council notice in writing of such injury, duly verified, within 90 days after same has been sustained.

Section 2-15 provides that waivers of notice of claims against the City can only be by a resolution of the City Council made and passed before the expiration of the 90 day period.

A week after the City truck struck plaintiff in the rear, plaintiff went to the City Hall to make a report. A City employee told him he needed to go to the Water Department to see defendant Roberts’ supervisor. Plaintiff went to that department and was told to go back to City Hall. Another City employee told plaintiff he needed to go to another part of town, but while they were talking City Attorney Charles Williams entered the City Hall lobby and plaintiff was introduced to him as someone who could help. Attorney Williams asked plaintiff what his complaint was and plaintiff explained to him about his bodily injuries. Williams told plaintiff he could not sue the City and that his back injury would not amount to anything. Williams then told him to write a letter to the City legal department, get two estimates on his car, and get a police report. Plaintiff complied with these instructions, did not verify his letter, and later received a letter from the City Secretary denying his claim.

Where verification is required by City Ordinance or Charter, the notice of injury must be verified to be effective, and such requirement is a matter of substance and not of mere form. Carrales v. City of Kingsville (Waco, Tex.Civ.App.) NWH, 393 S.W.2d 952; Cooper v. City of Abilene (Eastland, Tex.Civ.App.) NWH, 416 S.W.2d 562; Bowling v. City of Port Arthur (Beaumont, Tex.Civ.App.) NWH, 522 S.W.2d 270; McCrary v. City of Odessa, Tex., 482 S.W.2d 151.

The jury found in answer to Issue 9 that the City, by the conduct of City Attorney Williams, in regard to the claim of plaintiff, waived strict compliance with Section 11 of the City Charter.

The City’s Charter provides that waiver can only be accomplished by a resolution of the City Council. Thus Attorney Williams could not waive on behalf of the City.

But municipalities may be es-topped from asserting failure of compliance with notice and claim provisions. Estoppel is based on the principle that a party may not profit by his own or his agent’s wrongful act; and the purpose of estoppel is to prevent injustice and to protect those who have been misled. Cawthorn v. City of Houston, Tex.Comm.App., 231 S.W. 701; Roberts v. Haltom City, Tex., 543 S.W.2d 75. Such cases further hold that to create an estoppel, the City’s agent must make a representation, which is relied on by the person to whom it is made; and that a reasonably prudent person would have relied upon such statements.

Here the jury found that Attorney Williams led plaintiff to believe it was not necessary to verify the written claim to the City; that Attorney Williams in 'leading plaintiff to believe it was not necessary to verify the written claim, lulled plaintiff to sleep; and that such feeling of security was the cause of plaintiff’s failure to verify his written claim filed with the City. And the jury did not find that a reasonably prudent person would have relied on such statements.

But in answer to Issue 13 the jury found that “an ordinary prudent person would not have concluded from the circumstances that the City Attorney was waiving Section 11 of the City Charter.

A more correct inquiry for Issue 13 would have been: “Do you find from a preponderance of the evidence that a reasonably prudent person would have relied on Attorney Williams’ statements and conduct?”

And it was plaintiff’s burden to prove an estoppel, and the essential elements thereof. Concord Oil Co. v. Alco Oil and Gas Corp., Tex., 387 S.W.2d 635.

We find that there is error in the judgment since plaintiff was decreed a recovery when “estoppel” was not established; and we accordingly reverse such judgment.

But we deem that this case should not be rendered but should be remanded in the interest of justice. Scott v. Liebman, Tex., 404 S.W.2d 288; Morrow v. Shotwell, Tex., 477 S.W.2d 538.

REVERSED and REMANDED.

JAMES, Justice,

dissenting.

I respectfully dissent, and would affirm the trial court’s judgment, because in my opinion the Plaintiff-Appellee has established the elements of estoppel. By the jury’s answers to Special Issues 10, 11, and 12 the jury found the elements of estoppel against the City, to wit, that City Attorney Williams led Leo Black to believe it was not necessary to verify the written claim filed by Black, such conduct by the City Attorney lulled Black into a sense of security, and such feeling of security was the cause of Black’s failure to verify the written claim filed by Black. The four corners of the record manifest that Black was acting as an ordinary prudent person in reliance upon what City Attorney Williams told him, and the trial court so impliedly found.

In my opinion, the jury’s answer to Special Issue No. 13, (wherein the jury failed to find that an ordinary prudent person would have concluded that the City Attorney was waiving Section 11 of the City Charter) is an issue concerning the theory of waiver. The answer to this issue should be considered along with the jury’s answer to Special Issue No. 9, the other waiver issue, since it is not an estoppel issue.

Here we have a seventy-two year old man, Plaintiff-Appellee William Leo Black, unlearned in the law, rearended and substantially injured and damaged by the negligent acts of an employee of the City. In attempting to make a report at the City Hall, a city employee tells him he needs to go across the City of Houston to the Water Department to see the supervisor of the city employee who rearended him. After going to the Water Department, Black was told to go back to the City Hall. Another city employee told Black he needed to go to another part of town; whereupon City Attorney Williams came up and was introduced to Black as being someone who could help.

And here the City Attorney told him he could not sue the City and that his back injury would not amount to anything, to write a letter to the City Legal Department, get two estimates on his car, and a police report. The City Attorney further led Black to believe it was not necessary to verify the written claim to the City, and thereby lulled Black into a sense of false security. Black did what the City Attorney told him to do; whereupon he (Black) was informed after the 90 days had expired that his claim was not properly filed.

In my opinion, to do otherwise than affirm this judgment and hold the City liable on the theory of estoppel is to allow the City to benefit by its own wrongdoing. Here, Black was misled by the City Attorney in such a way that he did not file his verified claim within the 90-day period, when “but for” such misleading information the jury found he would have properly filed same. This type of misleading conduct has been condemned by our Supreme Court in Roberts v. Haltom City (Tex.1976) 543 S.W.2d 75, wherein it was held that a city may be held liable on the theory of estoppel by misleading on the part of the city’s agents, whether the city’s agent is expressly authorized or not to make such misleading statements. Also see Cawthorn v. City of Houston (Tex.Comm.App.1921) 231 S.W. 701, opinion adopted, at page 706, wherein the City’s 90-day claims filing period is discussed:

“This charter provision is hard enough, at best, on those who are injured by the City. It is in derogation of common right. City officers must not act in such a way as to lead people into a trap, and cause them to delay strict compliance with the charter provision until the 90 days have expired.”

Finally, in the language of our Supreme Court in Wright v. Calhoun (Tex.1857) 19 Tex. 412, at page 421:

“There can be no sounder doctrine of morals or of law, than that which forbids the principal to take a benefit from the fraudulent act or contract of his agent, to the injury of an innocent third person. It would indeed be a monstrous doctrine, to hold that a principal may speculate upon and enjoy the fruits of the frauds of his authorized agent, and incur no responsibility to the injured parties. It would enable one man, by employing the instrumentality of an unprincipled agent, to cheat, defraud and swindle others out of their property, and turn them over to their recourse upon the worthless agent, while he, the principal, received and retained the fruits of the iniquitous bargains. Such a doctrine can have no sanction in morals or law.”

In the case at bar, in my opinion the City is liable on the theory of estoppel; therefore I would affirm the judgment of the trial court.