author: DODSON, Justice.

text:
    In the Interest of G. M. et al., Children.
    No. 8974.
    Court of Civil Appeals of Texas, Amarillo.
    March 26, 1979.
    Rehearing Denied April 23, 1979.

      Marvin Rogers, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., Lubbock, Bonner Smith, Asst. Dist. Atty., for appel-lee.
   DODSON, Justice.

The Texas State Department of Public Welfare instituted this action under § 15.02 of the Texas Family Code to terminate the parent-child relationship between Respon-dent and her two natural children, G. M. and B. G. C. The Department alleged that Respondent knowingly placed or knowingly allowed G. M. and B. G. C. to remain in conditions or surroundings which endangered their physical and emotional well-being and that termination is in their best interest. Trial was before the court, who entered its judgment terminating the parent-child relationship and appointing Lubbock County Children’s Protective Service as the managing conservator. Respondent appeals from this judgment. Affirmed.

The natural right which exists between parents and their children is one of constitutional dimensions. The termination of this right is complete, final and irrevocable. It divests for all time the parent and child of all legal rights, privileges, duties and powers with respect to each other except for the child’s right to inherit. For these reasons, the proceedings below must be strictly scrutinized. Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976).

We first address the points of error which attack the legal and factual sufficiency of the evidence to support the court’s finding that Respondent knowingly allowed the children to remain in surroundings which endangered their physical and emotional well-being. In this regard, the Department sought to prove that: G. M. was sexually abused by her stepfather and his brother for approximately a year and a half to two years; Respondent knew of these incidents; Respondent allowed the children to remain in these surroundings during this time period. Respondent denies having any knowledge of these incidents of sexual abuse until October 1977, at which time she filed for a divorce and voluntarily discussed the alleged abuse with the Department, the police, the district attorney’s office, and the grand jury. A review of the evidence follows.

G. M., a six year old girl, testified in the language of a child that she was forced to have sexual intercourse with her stepfather in Kansas City and on subsequent occasions in Texas. She further testified that her mother knew of the incident in Kansas City (approximately a year and a half prior to October 1977 reporting of incidents) and had placed her in cold water in an attempt to stop her vaginal bleeding. G. M. testified that on another occasion her stepfather’s brother made her put her hand in his pants and he in turn did the same to her. Respondent, upon discovering this abuse in progress, stopped the incident.

Mrs. Wilma Manning, a case worker for Protective Services, testified that Respondent admitted that she had knowledge of the sexual abuse inflicted upon her daughter. Mrs. Manning also testified that B. G. C., a two and a half year old girl, was in the same room when G. M. was sexually abused.

Mrs. Michael Zahn, a social worker with Protective Services, testified that Respondent told her of an incident which occurred prior to her husband’s visit to the hospital in which she discovered G. M. undressed on a bed with her husband, who had his penis exposed. Following her husband’s return from the hospital, Respondent went to a liquor store at his request, only to return and discover that he had had intercourse with G. M. again. This discovery occurred approximately three weeks prior to Respondent’s visit to the Department.

Respondent testified:

Q. Did [G. M.] ever tell you about having sex with your husband and you didn’t do anything about it because you were scared?
A. Yeah, because I told her that I would see about stopping it, that we would talk to a judge or something or another but I didn’t know where to go.
Q. Okay, did [G. M.] tell you more than one time that [your husband] was having sex with her?
A. Yes, I asked about it a couple or so times, yes.
Q. [H]ave you ever made a statement to anyone in which you said in referring to this situation that at least [your husband] used Vasoline? Do you remember saying that?
A. Sometime or another, because I asked [G. M.] that. Now, who — I don’t know who I said it to but [G. M.] told me because I asked her if he just— without anything or if he used something.

We conclude, after our review of the entire record, that the finding that Respondent knowingly allowed G. M. and B. G. C. to remain in surroundings which endangered their physical and emotional well-being is supported by probative evidence. Furthermore, the finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, the legal and factual sufficiency points attacking this issue are overruled.

Respondent also challenges the legal and factual sufficiency of - the evidence to support the determination that the termination of the parent-child relationship is in the best interest of the children. This eviden-tiary review is guided by, but not necessarily limited to, the following factors: the desires of the children; the emotional and physical needs of the children now and in the future; the emotional and physical danger to the children now and in the future; the parental abilities of the individuals seeking custody; the programs available to assist these individuals to promote the best interest of the children; the stability of the home or proposed placement; the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and any excuse for the acts or omissions of the parent. Holley v. Adams, supra, at 371-72.

On October 31, 1977, G. M. and B. G. C. were placed in the Emergency Shelter for Children in Lubbock. They were given a medical and psychiatric examination. G. M. related in the psychiatric examination that she desired to return home to her mother. The examining physician indicated that G. M. had apparently been favored over her two and a half year old sister and that this may contribute to her large interest in being with her mother. He further stated that “[i]t is not unusual for neglected and or abused children to want to return to the abusing home because the parent or parents are seen as being the only significant person the child has had to relate to and depend upon for shelter and support, even though this may have been grossly inadequate.”

G. B. C.’s psychiatric examination, as well as testimony from other witnesses, showed that she was depressed and developmentally delayed and had very little ability to verbalize. Her problems were diagnosed as: “Depressive relation of childhood related to probable emotional deprivation with below normal intellectual functioning.” The examining doctor recommended that a speech and hearing evaluation be given, that she be enrolled in a therapeutic nursery, and that “[b]ecause of the apparent emotional deprivation the child has experienced in her parent’s home and her apparent lack of emotional investment in her mother, permanent placement outside the home be considered. . . . ”

Mrs. Wilma Manning testified that her Department has continued working with the children for their adjustment in foster care and that she would recommend that the siblings stay together upon adoption. She further stated that in her opinion B. G. C. suffered from emotional neglect. She expressed concern about Respondent possibly taking the children to her parents’ home because her brother had a record of sexually molesting young children. In this regard, she related seeing Respondent’s brother kiss G. M. goodbye one day at the office by placing his tongue in her mouth. Mrs. Manning stated that her recommendation of termination was based on what she believed to be in the best interest of the children.

We do not consider it necessary to restate that evidence which is set forth in our consideration of the first points of error. We note, however, that the evidence regarding the sexual abuse is a significant factor in determining whether termination is in the best interest of the children.

In conclusion, we have reviewed the entire record and determined that there is probative evidence to support the finding that termination of the parent-child relationship is in the best interest of the children. Furthermore, this finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Respondent’s legal and factual sufficiency points attacking the best interest determination are overruled.

Respondent next contends that the trial court erred in terminating the parent-child relationship based on a preponderance of the evidence rather than clear and convincing evidence. We have recently addressed this contention in Woodard v. Texas Dept. of Human Resources, 573 S.W.2d 596 (Tex.Civ.App.—Amarillo 1978, writ ref'd n. r. e.). We reiterate our position in Woodard that the proper standard is by a preponderance of the evidence. Respondent’s point of error is overruled.

In the final points of error Respondent maintains that she has a fundamental right under the United States Constitution to a natural parent-child relationship with her children and that the trial court erred in terminating this parent-child relationship because a less onerous and less restrictive alternative exists. She says the less onerous and less restrictive alternative is to allow her to participate in a six month rehabilitation program which was recommended by the examining psychologist rather than terminate the parent-child relationship.

In support of her position, Respondent relies on Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); O’Conner v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). These cases are not controlling or persuasive on the matters before this court. These eases deal with constitutional challenges directed at certain legislative enactments which attempt to regulate and impose restrictions on individual and constitutionally protected liberties. The constitutional validity of the underlying termination legislation is not before us. We also do not construe these cases to require the trial court to indulge a six month counseling experiment before it can terminate the parent-child relationship. We further point out that the rehabilitation recommendation is opinion testimony which is merely a part of the entire evidence and by itself is not binding on the court. Broussard v. Moon, 431 S.W.2d 534, 537 (Tex.1968).

We have strictly scrutinized the whole record in this case and conclude that the trial court properly exercised its discretion in terminating the parent-child relationship under the circumstances of this case. Respondent’s points of error are overruled. Accordingly, the judgment of the trial court is affirmed.

      .The statute provides, in part, that:
      A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
      1) the parent has:
      * * * * * *
      (D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; . and in addition, the court further finds that 2) termination is in the best interest of the child.
      Tex.Fam.Code Ann. § 15.02 (Vernon Supp. 1978-1979).

      . The natural mother of the children, G. M. and B. G. C., is referred to as the Respondent to protect the identity of the children.

      . The Department also sought and obtained the termination of the parent-child relationship between B. G. C. and her natural father and between G. M. and her natural father, who is unknown. Neither of these parents is involved in this appeal.

      . The psychologist’s report provided, in part, that:
      It is this examiner’s opinion that [Respondent] be offered individual and/or group counseling for a period of three months while her children continue to be in foster care. Following this another three month period of therapy should be completed while she has the children in care so that satisfactory mothering patterns can be instituted. At that point in time a new court hearing should be held to determine the future placement of the children.


source: Caselaw Access Project

author: PRESLAR, Chief Justice.

license: Public Domain

text:
    Nadine JACKSON, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 6780.
    Court of Civil Appeals of Texas, El Paso.
    March 28, 1979.
    Rehearing Denied April 25, 1979.
    Malcolm McGregor, Inc., Malcolm McGre-gor, Philip T. Cole, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, James L. Gallagher, Charles R. Jones, L. Randall Lee, El Paso, for appellee.
   OPINION

PRESLAR, Chief Justice.

In this worker’s compensation case, death benefits are sought for death resulting from a heart attack. Following trial by jury, the trial Court entered judgment notwithstanding the verdict in favor of the insurer. We affirm.

Appellant’s husband, Lewis Jackson, was a long line truck driver for T.I.M.E. — DC Freight Lines. He drove large diesel trucks, usually ten or twelve hours a day, five days a week. On November 19, 1974, he was scheduled to leave for Bowie, Arizona, at 1:00 a. m. He came to the place of work about 12:30 a. m. and was doing some paper work preliminary to leaving when he became ill with what was later determined to be a heart attack. He returned home and did not work again. On December 25, he suffered another heart attack and death resulted.

Three special issues were submitted to the jury by which they found (1) that Lewis Jackson suffered a heart attack on November 19, 1974; (2) that such heart attack occurred in the course of his employment; and (3) that such heart attack of November 19 was a producing cause of Jackson’s death. As indicated, the trial Court granted Appellee’s Motion for Judgment Notwithstanding the Verdict. We affirm the judgment of the trial Court on the basis that there is no evidence to sustain the jury’s answer to question No. 2 that the heart attack occurred in the course of employment for the reason that there is no evidence that such heart attack was produced or precipitated by the employee’s work or the conditions of his employment within the meaning of the Worker’s Compensation Act.

In summary, the evidence in this case is that of a general job description, which job, driving a truck, is stressful. Appellant’s pleadings allege an accidental injury — a heart attack on November 19, 1974. There is, however, no contention that there is evidence of some particular strain, exertion or other precipitating event traceable to a definite time, place and cause. On the contrary, Appellant takes the position that such evidence is no longer necessary since the amendment of Section 20 of Article 8306, Tex.Rev.Civ.Stat.Ann. In support of her position that the heart attack was produced or precipitated by Jackson’s work or the conditions of his employment, Appellant cites the testimony of four doctors. Dr. Carlos Franco testified that driving a truck is a stressful occupation and that a person with arteries in the condition of Mr. Jackson’s should not be in such a stressful occupation; Dr. Jorge Eguez testified that truck driving was stressful and that he had advised Mr. Jackson to consider stopping such work; Dr. Saul Appel testified that emotional stress can trigger a heart attack and that he believed that Jackson was under stress when going to work just before his heart attack. Also, he issues a book to his heart patients which warns that driving is a stressful activity. Dr. Raul Rivera testified that stress is one of the major precipitating causes of heart attacks, and it was his medical opinion that there was a definite causal connection between Jackson’s occupation and his heart attack in that driving a truck five days a week ten or twelve hours a day is a stressful occupation. Dr. Eguez was specific that he was talking about “mental” stress and Dr. Appel made it clear that he was talking about “emotional” stress. Appellant asserts that physical stress is no longer a prerequisite to recovery for a heart attack because a heart attack brought on by conditions of employment, physical or mental, and suffered on the job is by definition a compensable injury under Section 20 of Article 8306 as amended. In support of that position, she cites Henderson v. Travelers Insurance Company, 544 S.W.2d 649 (Tex.1976). We do not view Henderson as holding that mental strain meets the requirements of the statute. In Henderson, the employee had his heart attack at the end of a day’s work. There was evidence of some mental strain or stress but also there was evidence of physical exertion during the day’s work. In reversing a directed verdict for the defendant, the court said: “We believe there is at least some evidence presented which raises an issue as to whether or not Henderson suffered any strain or exertion while at work.” P. 652. In Henderson, the court did not overrule the cases of Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex.1972), and Whitaker v. General Insurance Company of America, 461 S.W.2d 148 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.). Rather, the court left those cases standing and distinguished them from the fact situation of Henderson. Those two cases are late expressions of our Supreme Court of the long-standing principle of Texas Worker’s Compensation Law — that a fact issue of whether a heart attack occurred in the course of employment is not created without evidence of some specific job related strain or exertion or some undesigned, untoward event traceable to a definite time, place and cause. Appellant has offered no such evidence here, and the evidence of stress and stressful occupation does not suffice under the statute.

The Supreme Court has very recently answered the questions presented by this case in interpreting Section 20 of Article 8306 in Transportation Insurance Company v. Maksyn, Tex., 580 S.W.2d 334 (1979). That case involved an occupational disease, but the exhaustive examination of Section 20 is applicable here. It is also applicable here because it is not clear whether Appellant is now claiming an accidental injury as alleged in her original petition or has now changed the theory of recovery to one of occupational disease. In the Maksyn case, Justice Pope, speaking for a unanimous court, stated the question to be a determination of whether damage or harm caused by a repetitious mental traumatic activity as distinguished from a physical activity can constitute an occupational disease. The court reversed a judgment for the claimant and rendered judgment that he take nothing based on its interpretation of Section 20 as amended. The court made an exhaustive analysis of Section 20 as amended, taking it sentence by sentence. It concluded that since the first sentence of the Section had not been changed, then the settled law that had developed under the first sentence is also intact, that is:

That law was that an injury is defined and understood as one that is an unde-signed, untoward event that is traceable to a definite time, place, and cause. In other words it is the result of an accident. Olson v. Hartford Accident & Indemnity Co., 477 S.W.2d 859 (Tex.1972); Texas Employers Ins. Ass’n v. McKay, 146 Tex. 569, 210 S.W.2d 147 (1948); Solomon v. Massachusetts Bonding & Ins. Co., 347 S.W.2d 17 (Tex.Civ.App.—San Antonio 1961, writ ref’d).

The court then interpreted the fourth sentence of Section 20 as being crucial to the claimant Maksyn’s contention that an occupational disease exists when a repetitious mental trauma causes the damage. The court stated that the statute does not support that conclusion, saying:

The legislature chose to include coverage for physical activities that cause the harm or damage; it excluded coverage for mental activities.

And, said the Court:

It appears that the Texas Legislature drew its line for compensability for occupational diseases by limiting coverage to those cases in which physical activities cause harm or injury and by denying coverage when mental activities cause the harm or injury. The legislature very well reasoned that physical activities are identifiable and traceable whereas such factors as worry, anxiety, tension, pressure, and overwork are not. In the case of mental activities, there must be the more reliable proof of an ascertainable time, place, and event. Bailey v. American General Ins. Co., 154 Tex. 430, 279 S.W.2d 315 (1955); Traveler’s Ins. Co. v. Garcia, 417 S.W.2d 630 (Tex.Civ.App.—El Paso 1967, writ ref’d n. r. e.); Aetna Insurance Co. v. Hart, 315 S.W.2d 169 (Tex.Civ.App.—Houston 1958, writ ref’d n. r. e.)

For the reasons stated, the judgment of the trial Court is affirmed.


author: WARD, Justice. PRESLAR, Justice,

text:
    Consuelo Serna LORUSSO, Appellant, v. MEMBERS MUTUAL INSURANCE COMPANY et al., Appellees.
    No. 6769.
    Court of Civil Appeals of Texas, El Paso.
    March 28, 1979.
    Rehearing Denied April 18, 1979.

      Ben A. Endlich, Bruce J. Ponder, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, Stephen B. Tatem, Jr., Johnson & Bowen, Phillip C. Bowen, El Paso, for appellees.
   OPINION

WARD, Justice.

This is a suit to recover the uninsured motorist’s benefit from the Plaintiff’s insurance carrier as well as a negligent action against the alleged uninsured motorist. The Plaintiff received a take nothing judgment after jury trial. The only question presented is whether the trial Court’s allowance of six peremptory challenges to each of the two Defendants constitutes reversible error. We affirm under the record presented.

There is no statement of facts. Consuelo Lorusso sued Armando Valdez, Jr. for damages which she alleged she sustained in an automobile accident, and she joined Members Mutual Insurance Company as the Plaintiff’s carrier, alleging that Valdez was an uninsured motorist and that coverage for such a motorist existed under her policy. Members Mutual filed a third party complaint against Valdez to preserve its rights of subrogation against the alleged uninsured motorist, and prayed that, to the extent the Plaintiff might recover judgment under the policy and be paid, it be indemnified and have judgment to that extent over against Valdez.

Plaintiff shows by bill of exception that, before the selection of the jury, she objected to the trial Court extending to each of the Defendants six peremptory challenges as they should only be allowed a total of six peremptory challenges. The Plaintiff claimed that the two Defendants had no conflicting interests, and that they had taken their twelve strikes of the jury together in a common room. The objection was overruled, the Court permitting each Defendant six peremptory challenges. The Court noted that each Defendant was represented by different attorneys, and that on the basis of the pleadings antagonism existed between them.

Trial proceeded, and the jury found that the Plaintiff was contributorily negligent and that her negligence was 80% responsible for the accident. By the damage issue, the only elements of recovery submitted were physical pain and mental anguish, both in the past and future, and loss of earning capacity. The jury returned a verdict of “None” to the damage issue submitted.

The rule governing the granting of peremptory challenges is set forth in Perkins v. Freeman, 518 S.W.2d 532 (Tex.1974):

Whether such defendants are parties within the meaning of Rule 233, so as to entitle them to separate peremptory challenges, depends on whether their interests are, at least in part, antagonistic in a matter that the jury is to be concerned with.

From the transcript and the statements contained in the respective briefs of the parties, we are unable to find where any antagonism existed between the two Defendants in a matter that would concern the jury, since the only issue as presented was a legal one of possible indemnity. The trial court was in error in granting the twelve peremptory challenges.

Article 2151a, Tex.Rev.Civ.Stat.Ann. (Supp. 1978-1979), specifically requires a trial court to align the parties and, after the proper alignment, it is then the duty of the court to equalize the number of peremptory challenges as provided for under Rule 233, Tex.R.Civ.P., and the equalizing of the number of peremptory challenges it to be done “in accordance with the ends of justice so that no party is given an unequal advantage . . . ” The granting of a greater number of peremptory challenges to one side places the other at a serious disadvantage. Because of this premise, the rule and statute mean that the doubling of the number of peremptory challenges to one side, or the denial of peremptory challenges to which a party is entitled, is an action that is calculated to cause a trial to be materially unfair, and to entitle the complaining party to a reversal and remand. Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965); Perkins v. Freeman, supra; Council v. Bankers Commercial Life Ins. Co., 558 S.W.2d 487 (Tex.Civ.App.—Beaumont 1977, writ ref’d n. r. e.). On the basis of these cases, the Plaintiff argues that the action of the trial Court was so materially unfair that she was denied a fair trial without the necessity of showing anything further.

The Defendants argue that the Plaintiff has not shown by the record how she was in any way injured by the jury selection, and that the harmless error rule applies. Longoria v. Atlantic Gulf Enterprises, Inc., 572 S.W.2d 71 at 80 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.). Certain language in the Tamburello case can be construed to support either argument. We are of the opinion that the final ruling of the court in Tamburello was made in a case where the evidence was sharply conflicting.

In this case, we have no statement of facts. For all we know, the great weight of the evidence might have compelled a finding that the Plaintiff was contributorily negligent as well as being largely responsible for the accident. As far as we know, the evidence may have conclusively shown that she was not hurt. Under this record, we hold that the harmless rule applies and that the Plaintiff has failed to show that the trial Court’s error caused or probably caused the rendition of an improper judgment. Rule 434, Tex.R.Civ.P.

The judgment of the trial Court is affirmed.

PRESLAR, Justice,

dissenting.

I respectfully dissent, and would reverse the judgment of the trial Court and remand for another trial. I agree with the majority that the trial Court was in error in granting the twelve peremptory challenges, but I would not determine this case on the basis of the harmless error rule. Rather, the question is whether the trial Court acted correctly based on information which was presented to the trial Court prior to the time of ruling on the number of peremptory challenges.

The majority goes on the basis that without a statement of facts the Plaintiff has, under the harmless error rule, failed to show that the trial Court’s error caused or probably caused the rendition of an improper judgment. I do not believe that a statement of facts has anything to do with the decision; this is certainly true since the enactment of Article 2151a, Tex.Rev.Civ.Stat.Ann. (Supp. 1978—1979), and its interpretation by the Supreme Court in Perkins v. Freeman, supra. I do not read Tambu-rello v. Welch as justifying the position of the majority; even so, it was decided prior to the enactment of Article 2151a. That Article provides:

After proper alignment of parties, it shall be the duty of the court to equalize the number of peremptory challenges provided under Rule 233, Texas Rules of Civil Procedure, Annotated, in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party.

In construing that Article, the Supreme Court said:

The statute specifically requires the trial court to align the parties. After a proper alignment of parties it is ‘the duty of the court to equalize the number of peremptory challenges’ as provided for under Rule 233. This equalizing of the number of peremptory challenges is to be done ‘in accordance with the ends of justice so that no party is given an unequal advantage.’ The alignment of parties is to be made not only on the basis of the pleadings but from a determination of the interests of the parties by information disclosed from pre-trial procedures and which has been specifically called to the attention of the court.

That, says the Supreme Court, is the method by which courts are to determine if the interests of the parties are at least in part antagonistic in a matter that the jury is to be concerned with. The Perkins case was a child custody contest between the divorced husband and wife, and the husband’s parents as intervenors. The Supreme Court reviewed the various pleadings filed by the intervening parents and the husband, and concluded that the defendant husband and the intervening parents were united in a common cause of action against the plaintiff wife; they both primarily sought to retain custody of the minor child in the defendant, or in the intervenors in the alternative, and they both sought to prevent custody to be awarded to the plaintiff wife. Based on this finding that the interest of the intervenors and the defendant was clearly not antagonistic on the issues submitted to the jury, the court held that the award to the defendant and inter-venors of double the amount of peremptory challenges is calculated to cause the trial to be materially unfair, and was reversible error.

The writer’s understanding of the rule of Perkins v. Freeman is set out by the Dallas Court of Civil Appeals in Lipshy v. Lipshy, 525 S.W.2d 222 (1975, writ dism’d). That court said:

The Supreme Court in Perkins, supra, pointed out that the existence of this antagonism is to be resolved not only on the basis of the pleadings of the parties but also from a determination of the interest of the parties from information which has been called to the attention of the trial court during pretrial procedures. The question of antagonism must be resolved in the light of the information which was presented to the trial court prior to the time of the exercise of the peremptory challenges and not by circumstances or events which may have transpired following that occasion. City of Amarillo v. Reid, 510 S.W.2d 624, 629 (Tex.Civ.App.-Amarillo 1974, writ ref’d); accord, Perkins v. Freeman, 518 S.W.2d 532, 533 (Tex.1974).

Amarillo v. Reid is often cited for the rule that the question before us is not to be decided by hindsight. Justice Barrow, speaking for the San Antonio Court of Civil Appeals in Roy L. Martin & Associates, Limited v. Renfro, 483 S.W.2d 845 (1972, writ ref’d n. r. e.), said:

Nevertheless, it is settled law that this question is not one to be determined by hindsight, but rather by an examination of the record as of the time that the trial court granted each of the defendants six separate peremptory challenges. M. L. Mayfield Petroleum Corp. v. Kelly, 450 S.W.2d 104 (Tex.Civ.App.—Tyler 1970, writ ref’d n. r. e.); Brown & Root, Inc. v. Gragg, 444 S.W.2d 656 [Tex.Civ.App.—Houston (1st Dist.) 1969, writ ref’d n. r. e.].

I recognize hindsight as a valuable tool of appellate courts, but it is no aid to the trial court in ruling on the number of peremptory challenges to allow, and the evidence submitted later in the trial does not aid the litigant trying to either urge or oppose peremptory challenges at the pre-trial stage.

In the case before us, the record reflects that there was no antagonism in a matter to be decided by the jury between the two defendants. Appellant, the insured, was suing the Appellee Valdez for negligence and causing her injuries. Jury issues would be the negligence of Valdez and proximate causation and resulting damages. She also sued her insurer, alleging that Valdez was an uninsured motorist. Jury issues there would be Valdez’ negligence and related issues and whether Valdez was uninsured. The insurer filed a third party complaint against Valdez, and that indemnity claim would present no jury issues. Thus, we have jury issues surrounding the negligence of Valdez and the issue of whether or not he was an uninsured motorist. The positions of Valdez and the insurer were not antagonistic; to the contrary, they stood together on the issue of his negligence. If any of the issues surrounding his negligence are found favorable to him, both are winners. Appellant also called to the trial Court’s attention the fact that counsel for Valdez made no appearance at deposition takings but left the matter entirely to the insurer.

For the reasons stated, I would reverse the judgment of the trial Court on the basis stated.


author: WARD, Justice.

text:
    W. R. WEAVER COMPANY, Appellant, v. BURROUGHS CORPORATION, Appellee.
    No. 6759.
    Court of Civil Appeals of Texas, El Paso.
    March 28, 1979.
    Rehearing Denied April 18, 1979.

      Ratliff, Haynes & Stading, Jack Ratliff, Robert A. Skipworth, El Paso, for appellant.
    Studdard, Melby, Schwartz, Crowson & Parrish, Don Studdard, Harold E. Crowson, Jr., El Paso, for appellee.
   OPINION

WARD, Justice.

This is an appeal from a summary judgment awarded to the Defendant. The Plaintiff, W. R. Weaver Company, leased accounting equipment and purchased the accompanying programs from the Defendant, Burroughs Corporation, and, becoming dissatisfied with the performance of the equipment and the programs, sued for alleged consequential damages suffered on theories of breach of express and implied warranties and on strict liability. Presented on this appeal are questions as to whether the statute of limitations barred the claim and whether certain exclusionary clauses as to warranties and consequential damages contained in the contracts relieved the Burroughs Corporation of any liability for warranties or for the consequential damages. We will reverse and remand.

This summary judgment was rendered before Rule 166-A, Tex.R.Civ.P., was amended on January 1, 1978. The summary judgment proof shows that the Defendant, Burroughs Corporation, leased an L7000 computer to the Plaintiff, W. R. Weaver Company, by lease agreement dated November 1, 1971, the machine being designed to perform certain accounting procedures. At the same time, Burroughs, by a separate contract in writing which was dated November 2, 1971, agreed to provide and to sell to Weaver the programs or software which would be used in the machine to perform Weaver’s automated sales accounting, finished goods inventory control, payroll and related reports, accounts receivable with aging, and accounts payable. All of the programs with the exception of the last had as their anticipated delivery schedule the date that the L7000 machine was delivered to Weaver. As to the accounts payable program, the anticipated delivery schedule was 180 days after delivery of the machine.

Among the terms and conditions of the contract regarding the sale of the software was the following provision: “Burroughs believes the programming being furnished hereunder is accurate and reliable and when programming accomplishes initially agreed-upon results, such programming will be considered completed.”

Because Weaver insisted that some assurance regarding the system be given, Burroughs, in addition to the lease agreement and the sales contract, executed and delivered to Weaver the following document:

STATEMENT OF INSTALLATION CONDITIONS BURROUGHS L7000 ACCOUNTING SYSTEM FOR W. R. WEAVER CO., EL PASO, TEXAS
Burroughs Corporation will, as provided in the cost of software programming, include the services of our district systems analyst to completely define your accounting needs and design a working system to meet your specific requirements. You will also receive the complete support of our local force in training your staff, both prior to and after completion of the installation.
Burroughs Corporation further agrees that software, as listed in addendum for application software support, will be operable prior to installation.

The L7000 was delivered to Weaver in February, 1972 and, according to the summary judgment proof offered by the non-moving Plaintiff, Weaver started using the equipment with the payroll program. According to the affidavit of Ron Colwell, a former employee of Burroughs, the system was slow in starting up, and by August, 1972, the only operational program that was then functioning was still the payroll program. About October, 1972, this employee and Mr. Hicks, the Accounting Manager for Weaver, started to operate the automatic sales accounting program, but it was not until 1978 that that program was actually able to be operated by the regular accounting employees of Weaver. Because the other programs had not been implemented, neither Colwell nor Hicks knew of any problems that Weaver would encounter from the other programs until they were actually put in use by the operators in 1973. Colwell remembered that Burroughs was always on his back to get something done about the machines so that Weaver would pay for them.

According to two of Weaver’s clerks who operated the machine, it was not until 1973 that the account receivables program was delivered and put into operation, and as to that operation the agency function never worked properly; that the finished goods inventory control program was slow and cumbersome and did not work properly; the automatic sales accounting program was slow and caused overtime; and the accounts payable program was never received from Burroughs.

As previously pointed out, the original agreement was that all accounting programs, with the exception of the accounts payable, would be operable at the time of installation; that through all of 1972, only the payroll program was in normal operation. On April 11, 1972, the Accounting Manager for Weaver notified Burroughs that Weaver would refuse to make payments because of lack of delivery, and thereafter Weaver made no payments on the contracts until the end of 1972. At that time, the parties apparently attempted to arrive at a solution to the difficulties that had arisen, though the exact dates and the exact nature of the agreements made between them are not entirely clear from the proof, and as later pointed out all this matter can be considered as being partially in dispute. At that time, Burroughs contacted Weaver and, as a result, Burroughs sold the L7000 to Funding Systems Leasing pursuant to a purchase order dated December 10, 1972, and Weaver in turn entered into a lease with Funding Systems and started making lease payments to that organization. Its first check to that organization was dated December 8, 1972. During that period, Burroughs cancelled all lease rentals owed by Weaver from the time of the delivery of the equipment up until the end of 1972.

Sometime later, Weaver discontinued the use of the equipment and the programs, and filed the present suit on December 21, 1976, alleging therein a breach of an express warranty and implied warranties of fitness and merchantability, claiming also a recovery on the theory of strict liability because of defective design. The damages alleged are those of an incidental and consequential nature, it being finally claimed that the Plaintiff was entitled to treble its recovery and to reasonable attorney’s fees by virtue of the Texas Deceptive Trade Practices— Consumer Protection Act, Article 17.50, Tex.Bus. & Comm.Code Ann. (Supp.1978— 1979). The Defendant answered pleading, among other things, the statute of limitations, express waivers of all implied warranties, as well as waivers and exclusions of the claimed damages. Thereafter, Burroughs filed its motion for summary judgment setting forth six separate grounds, and the trial Court, in granting the motion, stated that the judgment was granted upon each and every ground made in the motion for summary judgment.

The sole point presented on appeal is the general one that the trial Court erred in granting the motion for summary judgment. Under the point, each of the grounds urged by Burroughs and sustained by the Court below are attacked and covered. The question on appeal, as well as in the trial Court, is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the Plaintiff’s cause of action. We note further that, since the judgment was entered previous to 1978 under the rule then in force opinion testimony would not support a summary judgment. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970).

The first two grounds in the motion for summary judgment were that the four-year statute of limitations barred both the claim on the lease of the L7000 computer and any claim on the sale of the software. Burroughs separated the two transactions, and on the equipment lease agreement argued that the four-year statute of limitations, Article 5527, Tex.Rev.Civ.Stat.Ann. (1958), controls, and it began to run from the date the contract was breached. It argues that the summary judgment proof established that at the very latest a breach occurred when a repudiation of the sales contract was made by Weaver, and this was done when Weaver agreed to cancel the lease contract and to thereafter deal with Funding Systems Leasing. If it be accepted that the breach of the lease agreement occurred when Weaver agreed to cancel the lease contract, the problem presented is that the summary judgment movant has not established with any definiteness the date the cancellation of the Burroughs lease was made by Weaver, there being some evidence of record that the cancellation, if any, was not completely effective until January, 1973. We hold that Burroughs has not sustained its burden to show the absence of any fact issue in this regard.

As to the software sale, the parties agree that Section 2.725, Tex.Bus. & Comm. Code Ann. (Tex. UCC 1968), is applicable and that any action for breach of the contract of sale had to be commenced within four years after the cause of action accrued. Subsection (b) is to the effect that a cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach, and a breach of warranty occurs when tender of delivery is made. The parties agree that all of the executed instruments must be read together to arrive at the meaning of the contract. H. G. Brelsford & Associates v. Bankston Rentals, Inc., 573 S.W.2d 604 (Tex.Civ.App.—Eastland 1978, no writ). They differ as to the intention expressed by the documents. Thus, Burroughs argues that the sales contract is explicit in stating the dates when the programs will be delivered. Burroughs concludes that since the evidence shows that Weaver did not get operable programs upon the delivery of the machine in February, 1972, then that is the date of the breach and the date the statute of limitations started to run on the sales contract.

Weaver takes the position that Burroughs was not bound by the specified delivery dates as the terminology of the sales contract refers only to an anticipated delivery schedule, and further states that the delivery and installation would be made as promptly as was reasonably possible. The proof reflects that only two of the programs were delivered in 1972. At least a fact issue has been presented which must be resolved by the trier of the facts.

We do not reach the question of whether or not under the contracts there existed a warranty explicitly extending to future performance of the goods where the cause of action would accrue only when the breach was or should have been discovered. Section 2.725(b), Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968).

Burroughs next argues that any cause of action based upon tort has been barred by the two-year statute of limitations and that no recovery for economic loss based on strict liability under products liability law can be allowed. Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77 (Tex.1977). Weaver concedes on these matters and they will no longer exist in the case.

Burroughs also seems to assert that the two-year statute of limitations is applicable to any breach of implied warranty. That argument is overruled. A warranty that the law implies from the existence of a written contract is as much a part of the writing as the express terms of the contract and the action is governed by the four-year statute of limitations. Certain-Teed Products Corporation v. Bell, 422 S.W.2d 719 (Tex.1968). Also, if the contract be one as to a sale of goods, whether it be oral or written, Section 2.725 Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968), applies. Ideal Builders Hardware Company v. Cross Construction Co., Inc., 491 S.W.2d 228 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ).

The next point urged by Burroughs is that the written contract between the parties specifically excluded any warranty, express or implied, of merchantability and of fitness for a particular purpose as lessor in the lease agreement or seller in the equipment sales contract, and thus as a ■ matter of law no such warranties exist.

The equipment sale contract by which the programs were sold warranted them to be free from defects in material and workmanship, and Burroughs agreed to exchange defective parts during a period of one year from delivery. A separate paragraph excluded all other warranties, was all capitalized and was as follows: “THERE ARE NO UNDERSTANDINGS, AGREEMENTS, REPRESENTATIONS, OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY REGARDING THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), NOT SPECIFIED HEREIN, RESPECTING THIS CONTRACT OR EQUIPMENT HEREUNDER. THIS CONTRACT STATES THE ENTIRE OBLIGATION OF SELLER IN CONNECTION WITH THIS TRANSACTION.” Substantially the same provisions were in the lease agreement except that the quoted paragraph was not in capital letters but was set out as a separate paragraph in the lease.

Contrary to the argument made by Weaver, we hold that the disclaimer of implied and express warranties contained in the equipment sales contract complies with Section 1.201(10), Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968), and is conspicuous. Further, the contract is in compliance with Section 2.316(b), Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968), and does exclude the implied warranty of merchantability since the writing mentions merchantability and is conspicuous. Further, it excludes the implied warranty of fitness since the exclusion is in writing and is conspicuous. These exact provisions have been construed and held valid and effective against similar attacks in Westfield Chemical Corp. v. Burroughs Corp., 21 UCC Rep. 1293 (Mass.1977); Bakal v. Burroughs Corporation, 74 Misc.2d 202, 343 N.Y.S.2d 541 (1972); Investors Premium Corporation v. Burroughs Corporation, 389 F.Supp. 39 (D.S.C.1974).

The paragraph in the lease agreement is not in capital letters. The conspicuous requirement does not apply to the lease agreement as it does not fall within Chapter 2 of the Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968) on sales. Regardless, there is nothing hidden about the paragraph, and it is so written that a person against whom it would operate should have noticed it, particularly since this is a commercial transaction.

While the above would effectively dispose of the case if the only documents were the equipment sales contract and the lease agreement, those do not constitute the entire contract. There is also the statement of installation conditions which in effect states that the systems analysis of Burroughs will completely define Weaver’s accounting needs and will design a working system to meet Weaver’s specific requirements. According to the summary judgment proof offered by Weaver, an express warranty was given within the terms of Section 2.313, Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968), in the form of an affirmation of fact or promise. At this stage, at least, the inconsistent language of the instruments, creating an express warranty while at the same time disclaiming the warranty, creates a question of fact as to the intention of the parties and prohibits the summary judgment insofar as the judgment might have been based upon any disclaimer of warranties. H. G. Brelsford & Associates v. Bankston Rentals, Inc., supra.

In this connection, we point out that this court has previously held that an express warranty by sample made by the showing of a model mobile home to a buyer survived an “as is” agreement and disclaimer in the sales contract. Bowen v. Young, 507 S.W.2d 600 (Tex.Civ.App.—El Paso 1974, no writ). Weintraub, in his article Disclaimer of Warranties and Limitation of Damages for Breach of Warranty Under the UCC, 53 Tex.L.Rev. 60 (1974) at 70, discusses the problem and states that if there is any ambiguity concerning the combined effect of an expressed warranty and a warranty exclusion, the doubt will be resolved in favor of the express warranty.

The final ground made by Burroughs in its motion for summary judgment was that the contract precluded Weaver from recovering any incidental or consequential damages since the lease and sales agreement provide that Weaver expressly waives all damages, whether direct, incidental or consequential, as they provide that Burroughs shall not be held liable under the agreements for any more than exchange of equipment under the express warranty. The three Burroughs cases previously cited recognize that this limitation of damages is authorized by Section 2.719, Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968); that such agreements are common in commercial transactions between businessmen acting at presumed arm’s length; and that there is nothing unconscionable about them.

Again, Burroughs is asking that we ignore the express warranty language previously discussed and before the trier of the facts has determined what the ambiguous terms of the contract between the parties were, and whether under all of the circumstances the exclusive or limited remedy has failed of its essential purpose. Section 2.719(b), Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968). Burroughs further points out that nowhere has Weaver pled that the exclusive or limited remedy has failed in its essential purpose nor that it is unconscionable. That Weaver’s pleadings may be defective in raising defenses to the imposition of the limitation of remedies does not permit the granting of the summary judgment. If the affidavits or other summary judgment evidence disclose facts which render the position of the moving party untenable, summary judgment should be denied regardless of defects which may exist in the pleadings of the opposite party. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233 at 237 (1956).

For the reasons stated, judgment of the trial court granting the motion for summary judgment is reversed and the cause is remanded for trial.


author: MURRAY, Justice.

text:
    Harold J. STEIN and Eugene H. Lieck, d/b/a Mission Music & Vending Systems, Appellants, v. Paul MAURICIO, Appellee.
    No. 16149.
    Court of Civil Appeals of Texas, San Antonio.
    March 28, 1979.
    Rehearing Denied April 25, 1979.

      Eugene H. Lieck, Pickett & Lieck, San Antonio, for appellants.
    Charles L. Franz, Jr., Franz & Franz, San Antonio, for appellee.
   OPINION

MURRAY, Justice.

This suit was brought by appellants, Harold J. Stein and Eugene H. Lieck, d/b/a Mission Music and Vending Systems, against Paul Mauricio, appellee, for conversion of two juke boxes.

Appellee was the owner of a building in San Antonio, Texas, which he leased to one Robert Edwards for the purpose of operating a lounge. Appellants entered into a contract with Robert Edwards in which appellants and Edwards agreed to divide the proceeds from two juke boxes furnished by appellants for use in the lounge. On May 2, 1976, appellant, Stein, went to collect from the machines on the leased premises and found that the premises were locked and vacated. Appellee refused appellants demand for return of the machines, and on August 5, 1977, appellants filed this suit for conversion. After a trial before the court without a jury, the trial court entered judgment that appellants take nothing.

Appellee contends that his refusal to deliver the juke boxes to appellants was due to appellants’ failure to produce evidence of ownership. Appellee argues that appellants were required to produce evidence of ownership to appellee before he can be held liable for conversion of appellants’ property. We disagree. Under the facts and circumstances of this case, conversion is established as a matter of law.

Before considering the evidence, we will first examine some of the authorities that we believe are applicable in this situation. The wrongful detention of chattels under an assertion of right inconsistent with the owner’s general dominion, particularly if the detention occurs after demand for possession, may constitute conversion. Bub Davis Packing Co. v. ABC Rendering Co. of San Antonio, 437 S.W.2d 634 (Tex.Civ.App.—Austin 1969, no writ). A person in possession may refuse to surrender a chattel for a reasonable length of time when he has a reasonable doubt about the claimant’s right to immediate possession. This qualified refusal imposes a duty on the one in possession to make a reasonable inquiry into the right of the claimant to possession of the chattel. Restatement (Second) of Torts § 240 (1965). Accord, 89 C.J.S. Trover & Conversion §§ 51, 60 (1955). The qualified refusal must also be made in good faith. Restatement (Second) of Torts § 241 (1965). For a person in possession to rely on a qualified refusal, it is essential that the qualification be disclosed to the owner. The refusal must be stated distinctly, and all reasons for the refusal that are not mentioned at the time of refusal are waived and cannot be later raised. 18 Am. Jur.2d Conversion § 44 (1965); 89 C.J.S. Trover & Conversion § 59 (1955).

This case was tried before the court without a jury on March 20, 1978. The uncon-tradicted testimony of appellant, Stein, shows that he placed the two juke boxes in the establishment of Edwards five or six months prior to May 2,1976, and visited the lounges once a week to collect the money. On May 2,1976, he arrived at the lounge to collect the money and found that the place had been abandoned. A few days later he contacted appellee and made a demand for the two juke boxes which appellee refused. Appellee admitted that the two juke boxes were still in the store, and when questioned about Mr. Stein’s demand, appellee testified as follows:

Mr. Stein called me. I don’t remember when; but, I know it was shortly after Edwards left. He called me one time. One time only. And, he said that those two juke boxes belonged to him. He asked me if they were there; and, I said, ‘Yes, they are here.’ He said, ‘They belong to me, and I would like to take them out.’ And, I told him. ‘No. As far as I am concerned, they belong to Robert Edwards, because he is the one that told me to go ahead and hold them until he came back and took care of his rents.’ And I told Mr. Stein that if he wanted to pursue the matter to call my attorney, Mr. Franz; and, I believe he did, because Mr. Franz called me, and asked me about it; and I told Mr. Franz exactly what I am telling you. And, I guess that ended the case, because I never heard anything from either Mr. Stein or yourself, until a couple of months ago, when we got this letter saying that these machines were worth so much money, and they had been — et cetera, et cetera. But, nobody ever established ownership. Mr. Stein never talked to me personally. You never talked to me personally.
As far as I am concerned the machines are mine, because Robert Edwards left them there for me.

When questioned by appellants’ attorney concerning appellee’s conversation with Stein, appellee answered as follows:

Q. Mr. Mauricio, isn’t it a fact that when you talked to Mr. Stein that you told Mr. Stein that this man owed you some rents, and that you were going to keep those machines for payment of his rent?
A. Right. Excuse me, sir. No, I don’t know if I used those exact words. Q. But, I mean, in substance?
A. I think what I said was that Edwards is supposed to come back and collect those machines, and I would only be able to return them to this man, Edwards if he brought me any money.
Q. Now, you say shortly after Edwards left Mr. Stein contacted you, and you had this discussion with him, and you told him to talk to your attorney?
A. Right.
Q. Prior to sending you that letter — ’76 —prior to sending you that letter, Mr. Stein and I had several discussions with your attorney; and your attorney advised you to turn those machines over to us; and you refused? Isn’t that a fact?
A. I think so, yes. In 1976, you said?
Q. Yes, sir.
A. No, not in 1976. I talked to you — the first time I heard about you, Mr. Lieck, was in 1977, two months ago. That’s the first I have heard about you.

Under the facts as disclosed by the record in this case, there was a conversion of the two juke boxes by appellee in May 1976. It is clear that appellee’s refusal of Stein’s demand was not a qualified refusal, but was an absolute denial of appellants’ right to the return of the two juke boxes. Even after his own attorney advised appellee to return the property to appellants, appellee refused to do so until Edwards paid his back rent.

The judgment of the trial court is reversed and the cause is remanded to that court for a determination of appellants’ damages only.


author: BISSETT, Justice.

text:
    Joe FERGUSON d/b/a Joe Ferguson Water Well Company, Appellant, v. RED ARROW FREIGHT LINES, Appellee.
    No. 1364.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 29, 1979.

      Larkin T. Thedford, Edna, for appellant.
    O. F. Jones, Jones & Lazor, Victoria, for appellee.
   OPINION

BISSETT, Justice.

In this suit brought by Joe Ferguson, d/b/a Joe Ferguson Water Well Company, against Red Arrow Freight Lines to recover the cost of repairs to an air compressor delivered by defendant to plaintiff, the trial court, after a non-jury trial, rendered judgment that plaintiff recover $955.00, a sum representing the reasonable cost of repairing external damage to the compressor. Plaintiff has appealed.

The only issue on appeal is whether the trial court should also have awarded the plaintiff the reasonable cost of repairing certain internal damage to the compressor. We hold that the lower court correctly limited the judgment for the plaintiff to the cost of repairing external damage ($955.00), and, therefore, affirm the judgment.

Defendant is a common motor carrier under the laws of Texas. It owns and operates a truck line, and delivers freight to Edna, Texas, among other places. When the compressor was delivered to the loading dock in Edna, Texas, its point of destination, it showed visible signs of external damage, including a broken oil gauge. Plaintiff, upon observing the external damage, expressly refused to accept the compressor. The driver of defendant’s truck then went across the street, and, according to plaintiff’s statement, made a phone call to his superior in either San Antonio or Victoria. Plaintiff did not accompany the driver when he “went across the street.” When he returned, plaintiff again told him he would not accept the compressor until he heard it run. At this point, defendant’s driver said: “Let’s start it.” The compressor was then started and ran for about four or five minutes. Plaintiff then accepted delivery.

The following day, a representative of defendant called on the plaintiff at his home for the purpose of inspecting the compressor. After inspection; a damage report was filled out by the representative and signed by plaintiff. This report covered only the external damage to the compressor. The next day another representative inspected the compressor and filled out a supplemental damage report, which was signed by plaintiff’s son. This report also related to visible external damage. Sometime thereafter, the plaintiff was authorized by defendant’s representative to have the compressor repaired. Apparently, such authorization was made before it was discovered that the compressor had sustained internal damage.

The mechanic who repaired the compressor testified that, after hearing a distinct knocking sound during a brief engagement of the compressor, he tore the engine down and found substantial internal damage. According to him, the internal damage, with the exception of the broken oil tube, was caused by running the compressor at the time of its delivery to plaintiff. He reasoned that the damage occurred because there was no oil in circulation at that time to lubricate the engine’s running parts.

After the mechanic fully repaired the compressor, plaintiff presented a bill to defendant for $2,574.99, the total cost of repair. The defendant refused to pay the bill.

In his sole point of error, plaintiff contends that the trial court erred in not rendering judgment for him in the amount of $2,574.99, the total cost of repair to the compressor.

Findings of fact were neither requested nor filed. Thus, every reasonable presumption must be indulged in favor of the validity of the judgment rendered. Chicago, R. I. & G. Ry. Co. v. Bell, 168 S.W. 396 (Tex.Civ.App.—Fort Worth 1914, writ ref’d). If there is any legal theory supported by the pleadings and the evidence, which itself will support the judgment, the judgment must be affirmed. James v. Drye, 169 Tex. 321, 320 S.W.2d 319 (1959); Dairy Queen Stores, Inc. v. Silva, 552 S.W.2d 543 (Tex.Civ.App.—Corpus Christi 1977, no writ).

When goods are damaged in shipment, but are not totally destroyed, a consignee is ordinarily bound to accept the goods in damaged condition, and looks to the carrier for payment of the damages. In that situation, when the cost of repairs does not exceed the reasonable value of the goods prior to the damage, the reasonable cost of repair is the appropriate measure of damages. Southwestern Motor Transport Company v. Valley Weathermakers, Inc., 427 S.W.2d 597 (Tex.Sup.1968). In the instant case, the compressor was not totally destroyed, and the reasonable cost to repair the same, as shown by the evidence and by plaintiff’s admission in his brief, is less than its reasonable market value before it was damaged.

A carrier is strictly liable, with certain exceptions, at common law for any damage to goods while in transit. Missouri Pacific Railroad Co. v. Elmore & Stahl, 368 S.W.2d 99 (Tex.Sup.1963). This common law liability ends, however, when the goods are carried to the point of consignment and are there delivered to the consignee. House v. Soder, 36 Tex. 629 (1871). After termination of its common law liability, the carrier becomes liable only as a warehouseman for any actionable negligence on its part. Chief Freight Lines Co. v. Holiday Inns of America, Inc., 469 S.W.2d 413 (Tex.Civ.App.—Dallas 1971, no writ); Trans-Cold Express, Inc. v. Hardin, 415 S.W.2d 431 (Tex. Civ.App.—Austin 1967, no writ); American Express Co. v. Duncan, 193 S.W. 411 (Tex.Civ.App.—Fort Worth 1917, no writ).

Regarding the duties of a carrier, delivery may be actual or constructive. American Express Co. v. Duncan, supra. Actual delivery is accomplished when the goods are physically tendered to, or received by, an authorized person. Ada Oil Co. v. Dunlop Tire & Rubber Corp., 550 S.W.2d 129 (Tex.Civ.App.—Eastland 1977, no writ); Trans-Cold Express, Inc. v. Hardin, supra. In this case, the air compressor was physically tendered to the plaintiff several minutes before its motor was started. Plaintiff, however, refused to accept delivery at this time, and did not accept delivery until after the motor had run for four or five minutes. There can, of course, be no actual delivery if the consignee rightfully refuses the shipment. Missouri, K. & T. Ry. Co. of Texas v. Jenkins, 35 Tex.Civ.App. 429, 80 S.W. 428 (1904, no writ). A consignee may rightfully refuse a shipment when the goods have become totally worthless due to injury in transit. 11 Tex.Jur.2d, Carrier, § 334 (1960). He may not, however, refuse to accept a shipment merely because of injury caused by the carrier in the absence of total or substantial destruction. Southwestern Motor Transport Company v. Valley Weathermakers, Inc., supra; Chicago, R. I. & G. Ry. Co. v. Bell, 168 S.W. 396 (Tex.Civ.App.—Fort Worth 1914, writ ref’d). Here, it is clearly established by the evidence that the compressor was not totally destroyed at the time delivery was initially tendered to plaintiff.

While the record does show that defendant’s truck driver, when plaintiff told him at the freight dock: “I am not accepting nothing that won’t run,” did say to plaintiff: “Let’s start it," such statement by the driver does not, of itself, impose liability on defendant for the damage caused by the starting of the compressor. The truck driver, according to the evidence, was an employee of the defendant carrier who was authorized to drive defendant’s truck, and any voluntary statements by him, or the assumption of any liability by him, unless expressly and previously authorized by defendant, or subsequently ratified by defendant, are not within the course, scope and apparent authority of the driver, and are not imputable to the defendant, the truck driver’s employer. Big Mack Trucking Company, Inc. v. Dickerson, 497 S.W.2d 283 (Tex.Sup.1973). “[T]he well-advised employer would generally not authorize the driver to speak in these circumstances.” Big Mack Trucking Company, supra, at page 288.

It is also fundamental that an agency relationship and the extent of the agent’s authority cannot be established by the statements, standing alone, of the agent. See 2 Tex.Jur.2d, Agency, § 267, and the cases cited therein. Here, there is neither pleading nor evidence that the defendant’s truck driver-employee was defendant’s agent.

The truck driver did not testify. Concerning the authority of the truck driver (a local driver), Mr. Jerry Yates, who was the freight terminal manager for defendant at its San Antonio office on the date that the compressor sustained internal damage, testified:

“Q What is the authority of a city driver, or a local driver, with regard to his conducting business with the recipient of freight in the event that freight is damaged?
A If there is visible damage the driver, you know, should be instructed to let the, you know, consignee sign for the freight and inspect it at time of delivery, and if, ah, there is, you know, anything beyond that, beyond the consignee making exceptions on the delivery receipt, the driver would have to call the terminal for further instructions.”

The only statements relating to “further instructions” were made by plaintiff himself in these words:

“. . .1 told the truck driver I wasn’t going to accept it like that. And he came over to the courthouse somewheres and called. I didn’t come with him. And called Red Arrow. I don’t know whether it was San Antonio or Victoria. I don’t know. And he came back over there and he said, well, there would be a fellow over there the following day, if I would accept it. And I told him I wouldn’t accept it until I heard the compressor run.”

Those statements do not constitute evidence that the driver was authorized by defendant to “start” the compressor.

Finding no reversible error in the record, we have no choice but to affirm the judgment of the trial court. Plaintiff’s point of error is overruled.

AFFIRMED.


author: EVANS, Justice.

text:
    COMPU-CENTER, INC. et al., Appellants, v. COMPUBILL, INC., Appellee.
    No. 17279.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 29, 1979.

      Neal D. Cannon, Jr., Houston, for appellants.
    Doherty, Vela, Poser & Collins, Larry J. Doherty, Houston, for appellee.
    Before EVANS, WALLACE and WARREN, JJ.
   EVANS, Justice.

This is a venue case.

The plaintiff, Compubill, Inc., brought this action against defendants, Compu-Cen-ter, Inc., and George W. Jordan, III, in Fort Bend County, Texas, alleging that by virtue of an agreement negotiated by the parties in the county of suit, the defendants were to furnish a computer system and to license plaintiff in its use in Harris, Fort Bend, Wharton and Austin Counties; that in reliance upon the defendants’ representation that the system would be delivered not later than the middle of January, 1977, the plaintiff had incurred extensive costs and expenses; and that the acts and omissions on the part of the defendants were false, misleading and deceptive within the meaning of the Texas Deceptive Trade Practices-Consumer Protection Act, § 17.46 Tex.Bus. & Comm. Code Ann. Both of the defendants filed pleas of privilege which, after a non-jury hearing, the trial court overruled. The defendants appeal from the trial court’s order denying their pleas of privilege.

In their first point of error, the defendants contend that the trial court erred in overruling their plea of privilege because the plaintiff failed to plead and prove a cause of action under the Texas Deceptive Trade Practices-Consumer Protection Act. It is the plaintiff’s position that the trial court properly maintained venue in the county of suit under the applicable provision of the Texas Deceptive Trade Practices Act which provides:

“Section 17.56. Venue
An action brought which alleges a claim to relief under Section 17.50 of this sub-chapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or has done business.”

Prior to the amendment of this statute effective May 23,1977, the quoted provision did not contain the phrase “which alleges a claim to relief”. The plaintiff’s original petition in the case at bar was filed July 22, 1977, after the effective date of the amendment, and the plaintiff was not required, therefore, to do more than allege a claim for relief under Section 17.50. The defendant’s first point of error is overruled.

The defendants’ second and third points of error contend that the trial court erred in overruling their pleas of privilege because the evidence did not establish that they resided or had their principal place of business in Fort Bend County, Texas, or that they had done business in that county within the meaning of the venue provision. Under these points the defendants argue that the mere fact of their having negotiated with the plaintiff in Fort Bend County pri- or to the execution of the contract and of their having customers located in Fort Bend County did not constitute their having “done business” within the meaning of the statute.

The plaintiff’s president and chief executive officer, Kenneth R. Simon, testified that he had incorporated Compubill, Inc. for the purpose of going into the computer time sharing business, specializing in medical billings. He met the defendant George W. Jordan, III, a vice-president and executive officer of the defendant Compu-Center, Inc., in August 1976, and as a result of meetings in Fort Bend County, Texas, the parties reached an understanding whereby the defendants were to furnish a computer software system to the plaintiff by the middle of January 1977. According to the plaintiff’s testimony, Jordan represented that he was developing a very valuable medical billing system and that if the plaintiff purchased his package, it would receive extensive market support and would serve the defendant’s clients in Fort Bend and Harris Counties. Simon further testified that Jordan was, at that time, doing business for doctors in Fort Bend County and that Jordan had represented to him that he was then doing business in that county. On cross-examination, Simon testified that Jordan had represented to him that the defendant, Compu-Center, Inc., was already engaged in business in Fort Bend County and that he had customers in that county. A written contract was subsequently executed by the parties in Harris County on December 4, 1976, Simon signing for Com-pubill and Jordan signing for Compu-Cen-ter. In order to implement the filing system, forms were filled out in the physicians’ offices in Fort Bend County and mailed to defendant Compu-Center’s offices in Neuc-es County, where they were processed through computers, and the billings were then mailed directly to the physicians’ clients. The defendant Compu-Center then billed the physicians for its services.

Mr. Jordan, called as a witness for the defendants, testified that the principal place of business of Compu-Center, Inc. was Corpus Christi, Texas, and that neither he nor his company had ever maintained an office in Fort Bend County. He explained the company’s business operations as batch processing of billings for various types of businesses, predominately in the medical field. His customers had been procured through various medical meetings held either in Houston, San Antonio or Dallas, and he had' solicited customers in counties other than Fort Bend County.

The Deceptive Trade Practices-Consumer Protection Act does not set forth any standard for the determination of those acts which prove that a party has “done business” within the meaning of the statute. In Maxwell, Public and Private Rights and Remedies under the Deceptive Trade Practices-Consumer Protection Act, 8 St. Mary’s Law Journal 617 (1977) at page 647, it is suggested:

The “doing business” provision is a novel feature for Texas and no specific test of doing business is provided in the DTP A. ... A suggested approach is to employ the minimum contacts test utilized in determining whether Texas may exercise jurisdiction over a nonresident defendant. This approach commends itself not only because Texas’ long-arm statute also uses the term doing business (2031b), but also because the minimum contacts test, by definition, ensures that the defendant is accorded fundamental fairness in the designation of a forum for suit.

The acts which constitute “doing business” in this state under the provisions of the Texas long-arm statute include “entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State.” Article 2031b(4) Tex.Rev.Civ.Stat.Ann. Thus, the provisions of Article 2031b(4) include acts sounding in tort as well as in contract.

The contract in question was actually executed by the parties in Houston, Harris County, Texas. The terms of the contract did not state where it was to be performed, and it does not affirmatively appear that performance was to take place in Fort Bend County.

The defendants do admit to having clients in Fort Bend County; however, the testimony is undisputed that all such clients were solicited in counties other than Fort Bend County and that all personnel working with the physicians’ offices were trained in the defendants’ offices in Corpus Christi. The defendants’ clients sent their information to Corpus Christi for processing, and billings to the clients were mailed directly from the Corpus Christi office. It does not appear, therefore, that there is evidence from which the trial court could properly have inferred that the parties had entered into a contract to be performed in whole or in part in the county of suit.

There is testimony, in the record, that during the parties’ negotiations in Fort Bend County, Mr. Jordan represented that his company was at that time doing business for doctors in Fort Bend County and had been doing business there. However, Mr. Jordan’s subsequent testimony clearly negates the possibility that the contract was to be performed in whole or in part by either party in the county of suit. If Mr. Jordan’s testimony be considered as an admission that his company had done business in the county of suit, his testimony in this respect was, at best, a quasi-admission regarding the legal status of his company, subject to clarification by subsequent evidence bearing upon the subject. Texas Distillers, Inc. v. Howell, 409 S.W.2d 888 (Tex.Civ.App.-San Antonio 1966, writ ref’d n. r. e.)

There was, however, evidence from which the trial court could have concluded that the defendants were jointly responsible to the plaintiff for the tortious misrepresentations allegedly committed in Fort Bend County, Texas. The plaintiff’s president testified that such representations were made to him by Mr. Jordan at the Valley Lodge Club in Simonton, Fort Bend County, Texas, and that in reliance on such representations, he took actions which resulted in loss when the software system was not delivered at the time promised. Thus, there is evidence in the record to support the trial court’s implied finding that the defendants were jointly responsible to the plaintiff for misrepresentations under the Texas Deceptive Trade Practices-Consumer Protection Act, which were made in Fort Bend County, Texas. The defendants second and third points of error will, therefore be overruled.

In view of the court’s disposition of the defendants’ third point of error, it becomes unnecessary to consider the fourth point of error asserted by the defendant Jordan that venue could not be properly maintained against him under Section 29a Article 1995, Tex.Rev.Civ.Stat.Ann.

The trial court’s venue order is affirmed.


text:
    SHAW’S D.B. & L., INC., Appellant, v. Lorelei Schwartz FLETCHER, Appellee.
    No. 17299.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 29, 1979.

      Dickerson & Davis, Michael R. Davis, Houston, for appellant.
    Parks & Moss, Frank N. Ban, Houston, for appellee.
    Before EVANS, WARREN and WALLACE, JJ.
   EVANS, Justice.

This is a suit for conversion. The plaintiff alleged that the defendant, a pawnshop, purchased and converted to its own use a set of silverware which had previously been stolen from her apartment. After a non-jury trial, the court below entered judgment in favor of the plaintiff, awarding her the sum of $2,355.50 as the value of stolen silverware. The defendant brings this appeal.

The defendant contends that the trial court erred in entering judgment in favor of the plaintiff on the basis of conversion, arguing that the evidence does not show that the plaintiff’s property came into the defendant’s possession and that proof is also lacking that the defendant had actual or constructive knowledge of the plaintiff’s rights in such property. The defendant’s points of error are directed to the trial court’s rendition of judgment because of the state of the evidence, therefore, this court must determine only the legal sufficiency of the evidence to support the judgment. Chemical Cleaning, Inc. v. Chemical Cleaning and Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970).

The record contains no findings of fact and conclusions of law. Although the record contains a request that the trial court make and file findings of fact and conclusion of law, it does not appear that such request was called to the attention of the judge, nor does it appear that a second request of the trial court was made and presented as required by Rule 297 (Tex.Rev.Civ.Stat.Ann.). Smith v. Vankirk, 314 S.W.2d 377 (Tex.Civ.App.-Waco 1958, writ ref’d. n. r. e.). Thus, the record must be reviewed as though findings of fact and conclusions of law were not requested or filed, and the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex.1968).

In this suit for conversion, the burden was on the plaintiff to establish the fact of her ownership and her right to possession of the silverware set in question and also to show that it was the identical property converted by the defendant. Satterfield v. Knippel, 169 S.W.2d 795 (Tex.Civ.App.-Amarillo 1943, no writ). Therefore, it was incumbent upon the plaintiff to present some evidence of probative value, either direct or circumstantial, from which the trier of fact could reasonably infer that the silverware set stolen from the plaintiff’s apartment was the same property which was subsequently purchased by the defendant.

The plaintiff testified that she owned a complete set of silverware, “Towle, Rambler Rose pattern,” which was stolen from her apartment at 4000 West 34th Street in Houston, Texas, on August 30, 1974. She reported this theft to the police, but did not file charges against anyone because she did not know who had taken the silverware.

The manager of the defendant’s pawnshop testified that his business records showed a silverware set, “Towle, Rambler Rose pattern,” had been purchased for the sum of $135.00 from one Sherry Ellen Ye-age, 18 years of age, who gave her address as an apartment at 4000 West 34th Street. Ms. Yeage had no identification other than a St. Joseph Hospital card dated December 20, 1955.

The plaintiff’s son testified that he was acquainted with Sherry Ellen Yeage and that during August and September 1974 he had observed her on two separate occasions in the vicinity of 4000 West 34th Street.

The record does not contain any direct evidence that the silverware set stolen from the plaintiff’s apartment was the same silverware set purchased by the defendant from Sherry Ellen Yeage. However, there was proof tending to show that a silverware set of the same brand and pattern as the stolen set was purchased on the day of the theft from a person who had been observed in the vicinity of the plaintiff’s apartment and who gave the street address of the plaintiff’s apartment unit as her own address.

There is also testimony in the record indicating that Rambler Rose pattern silverware had been manufactured by the Towle Manufacturing Company for some thirty to forty years, and the defendant’s manager, who had been employed at the pawnshop for six years, testified that Rambler Rose pattern was a very common silverware pattern. However, under the standard of review which this court must follow in the case at bar, only that evidence which tends to support the trial court’s judgment will be considered.

In White-Sellie’s Jewelry Company, Inc. v. Goodyear Tire & Rubber Co., 477 S.W.2d 658, 660 (Tex.Civ.App.-Houston [14th Dist.] 1972, no writ) it is stated:

“In determining the legal sufficiency of evidence to support judgment rendered by trial court without the aid of jury, in absence of findings of fact and conclusions of law, only that evidence in support of the court’s implied findings may be considered, and evidence which leads to contrary finding must be disregarded. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962). The evidence supporting the theory upon which judgment impliedly is based need not be strong but only of some probative value. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup.1968).

The question here is whether there is some evidence in the record to support the trial court’s judgment, and in deciding this question, the court must determine whether the circumstantial evidence establishes the probability of the ultimate issue in support of the plaintiff’s case. Kirby Petroleum Co. v. Jones, 427 S.W.2d 681, 685 (Tex.Civ.App.-Houston [14th Dist.] 1968, writ ref’d. n. r. e.) The plaintiff’s proof need not exclude every other possible hypothesis; it is sufficient if the circumstantial evidence tends to establish the ultimate fact with that degree of certainty making the conclusion reasonably probable. McMillen Feeds, Inc. of Texas v. Harlow, 405 S.W.2d 123, 130 (Tex.Civ.App.-Austin 1966, writ ref’d. n. r. e.).

It is uncontroverted that on August 30,1974, a set of Towle silverware, Rambler Rose pattern, was stolen from the plaintiff’s apartment and that a silverware set of the same brand and pattern was purchased by the defendant pawn shop. The evidence is also undisputed that Ms. Sherry Ellen Yeage sold the silverware set to the pawn shop, giving her apartment number as the same street address as that of the plaintiff. On the basis of these circumstances, the trial court was authorized, but not compelled, to infer that the silverware set which Ms. Yeage sold to the defendant was the same silverware set which had been stolen from the plaintiff.

The trial court impliedly found that the silverware set stolen from the plaintiff’s apartment was the identical property purchased and disposed of by the defendant. Although circumstantial in nature, the evidence in the record is legally sufficient to support this implied finding.

The evidence is also legally sufficient to support the trial court’s implied finding that the defendant wrongfully exercised dominion and control over the plaintiff’s property in a manner necessarily inconsistent with her rights, and, thus, was legally responsible to the plaintiff for conversion of her property.

It is undisputed that the silverware set was stolen property and, therefore, the defendant’s acquisition of such property was unauthorized. The exercise of dominion or control over the plaintiff’s property in denial of or inconsistent with her rights constitutes a conversion. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444 (Tex.1971). It was not essential that the plaintiff establish a wrongful intent on the part of the defendant. White-Sellie’s Jewelry Co., Inc. v. Goodyear Tire & Rubber Co., supra; Powell v. Forest Oil Corp., 392 S.W.2d 549 (Tex.Civ.App.-Texarkana 1965, no writ). Neither was it necessary that the plaintiff make proof of a formal demand for the return of the property and of a refusal of such request by the defendant. Since the defendant acquired the property without authority, and disposed of it by sale to a third party, it was not necessary that the plaintiff prove a demand and refusal in order to show a conversion. White-Sellie’s Jewelry Co., Inc. v. Goodyear Tire & Rubber Co., supra.; Loomis v. Sharp, 519 S.W.2d 955, 958 (Tex.Civ.App.-Texarkana 1975, writ dism’d).

It was incumbent upon the defendant to ascertain the identity and ownership rights of persons from whom it bought personal property, and if it purchased property from one who had no authority to sell, its possession of such property in denial of the true owner’s rights constituted a conversion. Loomis v. Sharp, supra; Dill v. Graham, 530 S.W.2d 157, 160 (Tex.Civ.App.-Amarillo 1975, writ ref’d n. r. e.). See also Texas Penal Code § 31.03(c)(3) which became effective September 1, 1975.

The defendant also contends that the trial court erred in assessing damages, arguing that the award is based only upon evidence of the retail list price of new silverware.

Plaintiff’s expert witness, a field representative for the Towle Sterling Manufacturing Company, testified that the market value of a set of Towle silverware, Rambler Rose pattern, in August 1974 was in the amount of $2,355.50. He further testified that the replacement cost of such silverware at the time of trial would be $3,409.50, and that his opinion regarding the 1974 market value was based upon a price list which his company prepared and which was made available to silverware dealers. He testified that silverware did not necessarily depreciate in value and that the price of silverware generally had increased over the years. The proper measure of damages in a conversion case is the value of the converted property at the time and place of conversion. Commercial Credit Corp. v. Flores, 345 S.W.2d 432 (Tex.Civ.App.-Eastland 1961, writ ref’d n. r. e.); Powell v. Forest Oil Co., supra. The record contains evidence in support of the trial court’s award and it did not abuse its discretion in making an award in the amount indicated.

The trial court’s judgment is affirmed.


author: PEDEN, Justice.

text:
    TRANSPORT INSURANCE COMPANY, Appellant, v. Thomas J. GARCIA, Appellee.
    No. 17322.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 29, 1979.
    Rehearing Denied April 26, 1979.

      Butler, Binion, Rice, Cook & Knapp, Robert C. Floyd, William N. Blanton, III, Houston, for appellant.
    Harvill & Hardy, Dale Harvill, Houston, for appellee.
    Before PEDEN, EVANS and WALLACE, JJ.
   PEDEN, Justice.

Transport Insurance Company, the compensation carrier, appeals from a judgment based on jury findings that Thomas J. Garcia is totally and permanently incapacitated as a result of an injury he received in the course of his employment. Transport asserts that 1) there is no evidence that Garcia is permanently incapacitated, 2) the evidence proves as a matter of law that Garcia was not totally and permanently disabled, 3) the evidence is factually insufficient to support the jury finding that his total incapacity was permanent, and 4) such jury finding is against the great weight of the evidence.

For the past eleven years, Garcia has been employed by Merchants Fast Motor Lines. His present position, as driver, requires that he pick up and deliver freight of all kinds, handle freight on Merchants’ dock, and load and unload trailers. On August 25, 1976, Garcia injured his back while in the course and scope of employment. The following day, Garcia’s employer sent him to an orthopedic surgeon, Dr. Robert J. Kilian, who examined him and said he felt that Garcia had a “lumbosacral sprain, low back pain, that was not of a surgical type nature.” He tried bracing, physical therapy, exercise programs, muscle relaxants and pain pills. At Garcia’s request, Dr. Kilian released him to return to light duty on October 14, 1976. In December, the doctor gave Garcia a full release, and he has been working steadily ever since.

The appellant’s first two points of error constitute assertions that there is no evidence that Garcia is totally and permanently incapacitated.

The trial court’s charge correctly included this instruction: “The term ‘total incapacity’ does not imply absolute inability to perform any kind of labor, but means that one is disabled from performing the usual tasks of a workman, not merely the usual tasks of any particular trade or occupation, to such an extent that he cannot get and keep employment.” In considering Transport’s no evidence points, we review the evidence in the light most favorable to the jury’s verdict and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

Garcia says that although he is working, he is not capable of performing his full duties, and his return to work was because of economic necessity. He has pain in his lower back and leg. At night he is troubled with muscle spasms. He has difficulty doing heavy lifting and must wear a back support. His condition, which is aggravated by lifting and bending, has not improved over the past two years.

Dr. Kilian last examined Garcia the day before trial. He testified that in his opinion Garcia had recovered as much as he was going to recover and that his work performance is limited by his injury. Further, Dr. Kilian testified that Garcia would not do as well as another worker where the job tasks require that he use his back to provide muscle power.

Frank Trevino, a long-standing friend of Garcia’s, stated that after his injury Garcia demonstrated a great deal of pain when walking. He testified that Garcia cannot lift as much as he used to, that Garcia has periods of depression, that his driving ability has been impaired, and that he complains of pain. We overrule Transport’s first two points of error.

In points of error 3 and 4, Transport asserts that the evidence is insufficient to support a finding of permanent total incapacity and that this finding is against the great weight and preponderance of the evidence. In determining factual insufficiency of evidence points, we must consider all the evidence presented. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Willie Doolittle, Garcia’s supervisor, testified that since returning in December of 1976, Garcia has worked without complaints. There was also evidence that previously, in 1972 and again in 1974, Garcia strained his back. Garcia testified that from 1974 until the incident in August of 1976, he had no trouble with his back. The report of Dr. Ainsworth, an orthopedic surgeon who also examined Garcia, stated that Garcia had “subjective tenderness in the lumbosacral area with very minor muscular tightness . . . X-ray studies carried out at that date (December 9, 1976) showed some posterior degenerative wedging of the lumbosacral interspace. I felt that perhaps this may be a factor in this long-standing recurrent problem with his low back.”

There is no fixed rule by which claimant in a worker’s compensation case is required to establish the fact that he has suffered an injury causing permanent disability. Texas Employer’s Insurance Ass’n. v. Washington, 437 S.W.2d 340 (Tex.Civ.App.1969, writ ref. n. r. e.); Traders & General Ins. Co. v. Daniel, 131 S.W.2d 276 (Tex.Civ.App.1939, writ dism’s. judgmt. cor.). Permanent disability may be inferred from circumstantial evidence produced by lay witnesses even though this evidence is contradicted by the testimony of medical experts. Travelers Insurance Co. v. Wade, 373 S.W.2d 881 (Tex.Civ.App.1963, writ ref. n. r. e.); Texas Employer’s Insurance Ass’n. v. Washington, supra. Further, proof of duration and extent of a disability are, like the assessment of damages in a personal injury action, at best an estimate which must be determined by a jury from all of the pertinent facts before it. Employers Reinsurance Corp. v. Jones, 195 S.W.2d 810 (Tex.Civ.App.1946, writ ref. n. r. e.); Texas Employer’s Insurance Ass’n. v. Washington, supra.

We cannot say that the jury’s finding that Garcia’s total incapacity is permanent was against the great weight and preponderance of the evidence.

Affirmed.