author: JAMES, Justice.

text:
    L. R. BOULDIN and Ralph B. Bouldin, Appellants, v. James K. WOOSLEY, Appellee.
    No. 5355.
    Court of Civil Appeals of Texas, Waco.
    Feb. 20, 1975.
    Michael J. Rogers, Jon P. Hammond, Cle-burne, for appellants.
    Floyd R. Wilson, Meridian, Andrew Campbell, Hamilton, for appellee.
   OPINION

JAMES, Justice.

This is a specific performance suit. Plaintiff-Appellee James K. Woosley brought this suit against Defendant-Appellants L. R. Bouldin and Ralph B. Bouldin for specific performance of a written contract to convey a 540 acre tract of land located in Bosque County, Texas. The trial court sitting without a jury heard the testimony, after which he entered judgment in favor of Plaintiff-Appellee Woosley and decreed specific performance, from which judgment Defendant-Appellants appeal on two points of error. We affirm the trial court’s judgment.

Appellants’ first point asserts: “The trial court erred in finding that Appellee (Woos-ley) gave valid, effective and timely notice to Appellants of the exercise of the option to purchase the 540 acres of land.” We overrule this point.

The trial court’s judgment contains specific facts findings, among which is “That Plaintiff (Woosley) gave valid, effective and timely notice to Defendants (the Boul-dins) of the exercise of the option to purchase said 540 acres of land.”

On March 23, 1971, Plaintiff-Appellee (Woosley) and Defendant-Appellants (L. R. Bouldin and Ralph B. Bouldin) executed a written contract in which the Bouldin brothers agreed, among other things, to lease to Woosley a 540 acre tract of land for a term of three years, beginning March 23, 1971, and terminating March 22, 1974. The two Bouldin brothers owned the tract of land in question as tenants in common. As a part of the lease agreement, the Bouldins agreed to give Woosley the option to purchase the land at any time during the first year of the lease upon certain conditions. The contract provided “Such option shall be exercised by the first party (Woosley) giving to the second parties (the Bouldins) notice of his intention to exercise the same in writing and paying as a down payment during that calendar year the sum of 12½% of the total consideration.” The contract was personally signed and executed on March 23,1971, by Plaintiff-Appellee Woos-ley and Defendant-Appellant L. R. Bouldin, who signed “individually and as agent for Ralph B. Bouldin.” Ralph B. Bouldin thereafter signed the contract with the following notation above his signature, to wit:

“I hereby ratify and confirm the above contract that was heretofore executed by my brother L. R. Bouldin as my agent and Attorney in Fact.”

Ralph B. Bouldin’s home address was in Forth Worth, Texas, in Tarrant County; however, he was employed by General Dynamics Corporation and was required to make extended trips away from home in his work. He was never present or active in any of the negotiations or dealings between the parties at times and occasions material to this controversy, but in fact left all the dealings up to his brother L. R. Bouldin. However, Ralph B. Bouldin was present at the time of trial, and testified therein.

At the time the contract was signed, Ralph B. Bouldin was in England. After Woosley and L. R. Bouldin signed same, the contract was mailed to Ralph B. Bouldin in England, where he signed it, ratifying and confirming the act of his brother L. R. Bouldin in executing same as his agent and attorney in fact.

As stated, the contract provided the option to purchase was required to be exercised “at any time during the first year of said lease.” The first year would expire March 22, 1972. The following events took place in connection with the exercise of Woosley⅛ option to purchase:

On March 7, 1972, Hon. David B. Christian, the attorney at law representing Woosley, wrote a letter to “Mr. Lee Roy Bouldin,” but which letter was addressed to “1217 John Ragen Drive, Fort Worth, Texas,” which in fact was Ralph B. Bouldin’s home address. This letter stated in formal terms that it constituted written notice of the exercise of the option by Woosley to purchase the 540 acres of land. This letter was sent “Certified Mail, Return Receipt Requested,” and was sent to Ralph B. Boul-din’s home address. It so happened at the time the letter arrived that Ralph B. Boul-din was at home. He (Ralph B. Bouldin) testified he received the letter at the post office, and saw that it was addressed to his brother L. R. Bouldin. He said he did not open the letter, but had it forwarded to his brother at his address in Hurst, Texas (in Tarrant County). L. R. Bouldin signed for and received the letter on March 13, 1972. Shortly after receiving and forwarding the letter, Ralph B. Bouldin left to go to work at Las Vegas, Nevada. L. R. Bouldin called his brother by telephone and advised him that the letter was from Woosley’s lawyer exercising the option to purchase the land. Also, L. R. Bouldin, after receiving the letter, talked by telephone to Hon. David Christian, at which time L. R. Bouldin raised no question about his authority to represent his brother Ralph B. Bouldin. Mr. Christian testified that he had never met Ralph B. Bouldin, so he sent the letter to L. R. Bouldin at the address which he had in his file that he believed at the time was L. R.’s address.

The contract contained provisions that in the event Woosley desired to subdivide or cut off a portion of the premises and sell same that he could do so subject to written approval of “second parties” (the Bouldins) as to the location, in which event the Boul-dins would be paid at the rate of $175.00 per acre for the portion sold in return for a partial release.

On March 3,1972, Woosley entered into a written contract with one Walter Potts and one Joe F. Slavin, wherein Woosley agreed to convey the 540 acre tract to Potts and Slavin under certain conditions; however, this contract was specifically made subject to Woosley’s completion of the exercise of his option to purchase the land from the Bouldins. Nonetheless, Woosley did give Potts and Slavin possession of the 540 acre tract immediately upon execution of the contract and payment of $1000.00 earnest money. Potts and Slavin went into possession immediately after March 3, 1972, whereupon they proceeded to take down fences, bulldoze trees to make a road or roads through the place, had smaller tracts surveyed, made sales to various individuals and received deposits therefor, the details of which transactions need not be mentioned herein. Suffice it to say that shortly after L. R. Bouldin received Mr. Christian’s letter of March 7, 1972, exercising Woos-ley’s option to purchase, he (L. R. Bouldin) was in Bosque County in the vicinity of the land in question, on which occasion he overheard talk informing him of all the activity taking place on the 540 acre tract. Upon making a trip to the premises he verified the activity and for the first time became acquainted with Mr. Potts. All this activity disturbed L. R. Bouldin, and he arranged with Potts for a meeting to be had in the office of Hon. J. P. Word, who was the attorney representing him (Bouldin). There is testimony that this meeting took place in Mr. Word’s office on Saturday, March 18, 1972, wherein L. R. Bouldin and Mr. Word conferred with Woosley, Potts and Slavin. The upshot of the meeting was that L. R. Bouldin was concerned about the insufficiency of $175.00 per acre to be paid him and his brother Ralph B. Bouldin for partial releases in the event of subdivision. He was also upset because of all the activity of Potts and Slavin taking place without anyone consulting him ahead of time. At this meeting Potts and Slavin offered to pay him at the rate of $300.00 per acre for any partial releases; however, this matter was not resolved at this meeting.

Two days after this meeting, Mr. Word as the Bouldin attorney wrote a letter to Mr. Christian as Woosley’s attorney, which letter was dated March 20, 1972. This letter informed Mr. Christian that L. R. Bouldin agreed to sign the deed to the subject land on the conditions that one Leslie B. Vance would be made Trustee in the deed of trust, and that an acknowledgement be prepared for Ralph B. Bouldin in Clark County, Nevada, for his signature to the deed. Ralph B. Bouldin was at that time working in Las Vegas, Nevada. Mr. Word also pointed out a suggested minor change in the deed which Mr. Christian had theretofore prepared and submitted to him. Mr. Word’s letter concluded by saying, “When the corrections have been made, if you will send the deed to Mr. L. R. Bouldin, he will sign it and send it to Ralph B. Bouldin for his signature.”

After Mr. Christian had received Mr. Word’s letter above-described, Mr. Christian made the changes suggested by Mr. Word in the deed and wrote L. R. Bouldin a letter on March 23, 1972, enclosing the deed with the request that L. R. Bouldin execute it and then forward it on to Nevada to Ralph B. Bouldin for his signature and execution. The Bouldin brothers refused to sign the deed, which brought about the filing of this suit by Woosley for specific performance.

Defendant-Appellants contend that L. R. Bouldin’s authority to act as Ralph B. Boul-din’s agent extended only to the execution of the contract and no further. This being so, they assert that in March 1972 during all the negotiations concerning Woosley’s exercise of option to purchase as hereinabove outlined, L. R. Bouldin was acting only for himself and not as agent for Ralph B. Boul-din. Since Appellants contend that only L. R. Bouldin received the written notice of exercise of option to purchase (Mr. Christian’s letter of March 7, 1972), they argue that Ralph B. Bouldin never was given “valid, effective, and timely notice” of Woosley’s exercise of option to purchase. We do not agree with this contention.

In the first place, Appellants themselves created the agency relationship by virtue of the language used in connection with both of their signatures to the contract, as here-inabove quoted, and represented such agency relationship to Woosley. The specific question then arises: Did the agency relationship end with the execution of the contract, as contended by Appellants; or did it continue thereafter so as to include the dealings between the parties when Woosley undertook to exercise his option to purchase, as contended by Appellee?

We hold that the agency relationship continued from the execution of the contract down through the exercise of the option to purchase. An agency which is shown to have once existed is ordinarily presumed to have continued. Woosley without notice of a revocation of such agency was justified in so presuming and acting on the apparent unrevoked authority. Quanah, A. & P. Railway Co. v. Dickey (Amarillo, Tex.Civ.App.1915) 179 S.W. 69, writ refused; Buckley v. Gulf Refining Co. (Amarillo, Tex.Civ.App.1938) 123 S.W.2d 970, error dismissed, judgment correct; 2 Tex.Jur.2d “Agency”, par. 14, p. 450. If an agent’s acts are within the scope of his authority, and are related to matters over which such authority extends, notice to the agent is then deemed to be notice to the principal. See 2 Tex.Jur.2d “Agency”, par. 183, p. 629 and the cases therein cited.

In the case at bar, throughout all the dealings between the parties as hereinabove outlined, there is no evidence that Ralph B. Bouldin at any time said anything or did anything to revoke the agency relationship whereby his brother L. R. Bouldin was acting for him. From the four corners of the record it is clear that Ralph B. Bouldin intended for L. R. Bouldin to act as his agent in all of his dealings concerning and surrounding Woosley’s exercise of his option to purchase. L. R. Bouldin’s lack of authority to act as Ralph B. Bouldin’s agent was never at any time or in any manner raised until after this suit was filed. In other words, during the negotiations between the parties surrounding the exercise of Woosley’s option to purchase, Woosley and his attorney had every reason to rely upon the agency relationship, insofar as giving written notice of the exercise of the option to purchase was concerned. For the above reasons, we overrule appellants’ first point of error.

Aside from the problem as to whether L. R. Bouldin had actual authority to act for Ralph B. Bouldin, in any event we hold that Ralph B. Bouldin clothed L. R. Bouldin with apparent authority as his agent. See Tex. Jur.2d “Agency”, pars. 43 through 46, inclusive, p. 481 et seq.

Appellants’ second point asserts error of the trial court in decreeing specific performance, because 200 acres of the 540 acre tract in question was the homestead of L. R. Bouldin. We overrule this contention.

Defendant-Appellants (the Bouldins) did not plead homestead, and therefore did not raise this issue. If a homestead right is relied upon, either as a cause of action or as a defense, it must be pleaded. Shonaker v. Citizens’ Loan and Investment Co. (Austin, Tex.Giv.App.1928) 8 S.W.2d 566, writ refused. Also see Johnson v. Echols (Eastland, Tex.Civ.App.1929) 21 S.W.2d 382, writ refused; 28 Tex.Jur.2d “Homesteads”, par. 82, page 474.

The only evidence bearing upon the homestead question was testimony from L. R. Bouldin wherein he testified that he moved on the land in controversy in April 1973 and claimed 200 acres of the 540 acres as his homestead “through the tax office down here.” The record shows that he was living in Tarrant County, Texas, at the time that Woosley exercised his option to purchase. L. R. Bouldin testified that “I think I was in Forth Worth about two years” before “moving back” on the 540 acres in April 1973. The record reflects that he was not living on the land in controversy at the time the contract was made, or at the time the option to purchase was exercised, or at the time suit was filed (July 26, 1972), but that he moved on the 540 acres in April 1973, over eight months after this suit was filed. The record is silent as to L. R. Boul-din’s marital status or family status at any time material to this controversy, and is likewise silent as to which 200 acres of the 540 acres he is claiming as a homestead.

The burden of proving a homestead is upon the party claiming same. Campbell v. First National Bank in Lubbock (Amarillo, Tex.Civ.App. 1935) 88 S.W.2d 1084, writ refused. Aside from Defendant-Appellants’ failure to plead their claim of homestead, we hold the proof to be insufficient to establish such claim. For a good discussion of sufficiency of such evidence, see Campbell v. First National Bank, supra. For the above reasons, Appellants’ second and final point is overruled.

Judgment of the trial court is accordingly affirmed.

Affirmed.


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    Guy BRADLEY, Appellant, v. Michael H. SWEARINGEN, Appellee.
    No. 4785.
    Court of Civil Appeals of Texas, Eastland.
    May 2, 1975.

      Bobby D. Burnett, Munday, for appellant.
    Joe Reeder, Jr., Knox City, for appellee.
   McCLOUD, Chief Justice.

This is a mandamus case involving the constitutionality of Article 4.12, Vernon’s Ann.Code of Criminal Procedure.

Michael H. Swearingen was arrested for speeding which he allegedly committed in Justice Precinct No. 1 of Knox County. The complaint, however, was filed with the Knox County Justice of the Peace of Precinct No. 5. Thereafter, Swearingen filed a motion seeking to have the case transferred to Precinct No. 1. He alleged he was entitled to have the case removed to Precinct No. 1 because the offense, if any, was committed in such precinct. The justice court overruled the motion to transfer and Swearingen filed an application in the district court for a writ of mandamus to compel the Justice of the Peace of Precinct No. 5 to transfer the case to the Justice Court of Precinct No. 1.

The district court granted the writ of mandamus. Guy Bradley, Justice of the Peace of Precinct No. 5, has appealed. We reverse and dismiss the writ of mandamus.

We first point out that the instant mandamus proceeding is a civil rather than criminal action, and we have jurisdiction of the appeal. Hogan v. Turland, 428 S.W.2d 316 (Tex.1968).

Swearingen contends the alleged offense occurred, if at all, in Precinct No. 1 and he was entitled to have the case transferred to that precinct under Article 4.12, Vernon’s Ann.Code of Criminal Procedure. Justice of the Peace Bradley argues that Article 4.12 is unconstitutional because it attempts to limit the jurisdiction of justice courts.

Texas Constitution, Article V, § 19, Vernon’s Ann.St. provides:

“Justices of the peace shall have jurisdiction in criminal matters of all cases where the penalty or fine to be imposed by law may not be more than for two hundred dollars, and in civil matters of all cases where the amount in controversy is two hundred dollars or less, exclusive of interest, of which exclusive original jurisdiction is not given to the District or County Courts; and such other jurisdiction, criminal and civil, as may be provided by law, under such regulations as may be prescribed by law; . . .”

Article 4.12, Vernon’s Ann.Code of Criminal Procedure provides:

“A misdemeanor case to be tried in justice court shall be tried in the precinct in which the offense was committed, or in which the defendant or any of the defendants reside, or, with the written consent of the State and each defendant or his attorney, in any other precinct within the county; provided that in any misdemeanor case in which the offense was committed in a precinct where there is no qualified justice precinct court, then trial shall be had in the next adjacent precinct in the same county which may have a duly qualified justice precinct court, or in the precinct in which the defendant may reside; provided that in any such misdemeanor case, upon disqualification for any reason of all justices of the peace in the precinct where the offense was committed, such case may be tried in the next adjoining precinct in the same county, having a duly qualified justice of the peace.”

Bradley relies upon Texas Attorney General’s opinion No. C-602 (1966) which held that Article 4.12 is unconstitutional. The opinion cited Ex parte Von Koenneritz, 105 Tex.Civ.R. 135, 286 S.W. 987 (1926), which held that a justice of the peace court has jurisdiction to try a case which arose in another precinct in the county. The Attorney General reasoned that Article 4.12 is unconstitutional because it places limitations upon this jurisdiction.

We disagree with the Attorney General’s opinion. The opinion is persuasive and entitled to careful consideration by the courts, but it is not binding. Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130 (1931).

We agree with the holding in Von Koenneritz that a justice of the peace court has jurisdiction to try a case which arose in another precinct. See Article 4.11, Vernon’s Ann.Code of Criminal Procedure.

We interpret Article 4.12, however, to be merely a venue requirement and it does not limit the jurisdiction of a justice court. Article 4.12 designates the place where the case may be tried and does not limit the power or authority of a justice court to try a particular case. As stated in Martin v. State, 385 S.W.2d 260 (Tex.Cr. App.1964):

“ ‘Venue,’ as applied to criminal cases, means the place in which prosecutions are to begin, while ‘jurisdiction’ means the power of the court to hear and determine the case, and the terms are not synonymous. Williams v. State, 145 Tex.Cr.R. 536, 170 S.W.2d 482.”

We think there can be no doubt but that the Legislature had the authority to fix venue as it did in Article 4.12. Mischer v. State, 41 Tex.Cr.R. 212, 53 S.W. 627 (1899). We hold that Article 4.12 does not contravene the provisions of Article V, § 19 of the Texas Constitution. However, the determination of proper venue involves judicial discretion and is not a ministerial act. The writ of mandamus, therefore, was not a proper remedy. Trantham v. Slaughter, 405 S.W.2d 206 (Tex.Civ.App. — Eastland 1966, no writ).

The judgment of the trial court is reversed and the writ of mandamus dismissed.


author: WALTER, Justice.

text:
    Clyde CASTLEBERRY, Appellant, v. ACCO FEEDS, DIVISION OF ANDERSON, CLAYTON & CO., Appellee.
    No. 4796.
    Court of Civil Appeals of Texas, Eastland.
    June 27, 1975.
    Rehearing Denied July 18, 1975.

      Michael M. Martin, Lynch, Nored, Martin & Millican, Lampasas, for appellant.
    Bill Tippen, Bradbury, Tippen & Cross, Abilene, for appellee.
   WALTER, Justice.

This is a venue case. Acco Feeds, Division of Anderson, Clayton & Co., filed suit against Clyde Castleberry on an open account in Taylor County, Texas, where its office is located. Castleberry filed a plea of privilege to be sued in Burnet County, the county of his residence and the county in which he signed the delivery tickets on his purchases of feed from Acco. In its controverting plea, plaintiff alleges that in all the signed delivery tickets there is a provision that the accounts are payable at Acco’s office in Abilene, Texas. The Court overruled Castleberry’s plea of privilege and he has appealed.

Subdivision 5 of Article 1995, Vernon’s Ann.Tex.Rev.Civ.St., is as follows:

“5. Contract in writing, (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has Ms domicile.
b. In an action founded upon a contractual obligation of the defendant to pay money arising out of or based upon a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household or agricultural use, suit by a creditor upon or by reason of such obligation may be brought against the defendant either in the county in which the defendant in fact signed the contract, or in the county in which the defendant resides at the time of the commencement of the action. No term or statement contained in an obligation described in this subsection shall constitute a waiver of this provision. Subd. 5 amended by Acts 1973, 63rd Leg., p. 489, eh. 213, § 1, eff. August 27, 1973.”

The facts are undisputed. The parties agree this is a case of first impression. Plaintiff suggests that subdivision 5 of Article 1995 was passed by the legislature pursuant to a law review article written by Professor John J. Sampson of the University of Texas Law School which appeared in 51 Tex.Law.Rev. 269 (1973).

Plaintiff says:
“Professor Sampson specifically points out that to construe section 5(b) to apply to the situation in which a large corporate farmer purchases goods on credit would be a distortion of the intent of the revision of this section. As he points out, the large farmer has relatively great bargaining power and does not require the protection of the article. Mr. Castleberry raised cattle on approximately 3,000 acres of land, and owned approximately $350,-000.00 worth of cattle. Appellee would respectfully submit to the Court that Mr. Castleberry is not the small farmer or the small consumer whose interest the legislature had in mind in revising this provision of Article 1995.”

Defendant runs a cow and calf operation and purchased the feed from plaintiff to feed his cattle.

In Southern Iron & Metal Company v. Yaffe, 351 S.W.2d 664 (Tex.Civ.App. — Waco 1961, no writ), the court said:

“. . .A consumer is one who ‘uses economic goods and so diminishes or destroys their utilities’, and one who buys goods for re-sale is not a consumer, in the ordinary meaning of the term. 9 Words and Phrases Consumer, p. 12; and see Ex parte Mehlam, 127 Tex.Cr.R. 257, 75 S.W.2d 689, 690.”

In Ex parte Mehlam, 127 Tex.Cr.R. 257, 75 S.W.2d 689 (1934), at page 690, the court said:

“. . . The word ‘consumer,’ not being defined in the act, must be taken and construed in the sense in which it is understood in common language. Article 8, Penal Code. Webster’s International Dictionary defines a ‘consumer’ as: ‘One who uses (economic) goods and so diminishes or destroys their utilities; — opposed to producer.’ The same authority defines the word ‘consume’ to mean, ‘use up, expend, waste, devour,’ and gives as synonyms the following: ‘Destroy, swallow up, engulf, absorb, waste, exhaust, spend, squander, lavish, dissipate, burn up.’ In State v. Lagomarcino-Grupe Co., 207 Iowa, 621, 223 N.W. 512, 513, the Supreme Court of Iowa, in construing the word ‘consumer’ as employed in a statute levying a tax on cigarettes, used language as follows: ‘The word “consume” has a general and popular meaning which is consistent with the dictionary definition and which it must be assumed was in the mind of the Legislature at the time of the enactment of the statute in question.’ ”

In Colbert Mill & Feed Có. v. Oklahoma Tax Commission, 188 Okl. 366,109 P.2d 504 (1941), the Supreme Court of Oklahoma held:

“We conclude that the feed was sold to the owner of the cattle, who was the ‘consumer’ or ‘user’, and that it was sold for ‘consumption’ as those terms are used in Secs. 4 and 5 of the Act.”

In construing civil statutes, “The ordinary signification shall be applied to words, . ”, Article 10, V.A.C.S. In Railroad Commission of Texas v. Miller, 434 S.W.2d 670 (Tex.1968), our Supreme Court said:

. There is no basis for saying that employment of the term ‘effecting pooling’ in Section 2(g) did not express the true intent of the Legislature, or that the use of the term resulted from inadvertence, or mistake, or artless and unskillful draftsmanship. The situation, then, is as expressed in Texas Highway Commission v. El Paso Bldg. & Const. Trades Council, 149 Tex. 457, 234 S.W.2d 857 (1950):
‘Courts must take statutes as they find them. More than that, they should be willing to take them as they find them. They should search out carefully the intendment of a statute, giving full effect to all of its terms. But they must find its intent in its language, and not elsewhere. They are not the law-making body. They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of the written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.’ Simons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70.

We restated these governing principles in City of Port Arthur v. Tillman, 398 S.W.2d 750 (Tex.Sup.1965):

‘In the case of Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1961), we wrote the follow-mg; ⅜ * ⅜ “This brings to mind the maxim that ‘If Parliament does not mean what it says, it must say so.’ * ⅜ * We may not invade the legislative field. There is nothing ambiguous or uncertain about the literal meaning of the Act ⅜ * ⅜”.’ ”

In Webster’s Third New International Dictionary the term agriculture is defined: “la: the science or art of cultivating the soil, harvesting crops, and raising livestock: Tillage, Husbandry, Farming b: the science or art of the production of plants and animals useful to man and in varying degrees the preparation of these products for man’s use and their disposal (as by marketing).”

We must find the intent of the Legislature from the language used in the statute and not from other sources. We hold the plaintiff’s cause of action is founded on a contractual obligation of the defendant to pay money arising out of a consumer transaction for goods intended primarily for agriculture use. The evidence conclusively shows as a matter of law that the defendant’s plea of privilege should have been sustained.

The judgment is reversed and judgment is rendered for the defendant, Clyde Castle-berry.

RALEIGH BROWN, J., not participating.


author: KEITH, Justice.

text:
    Robert Ronald FLIPPIN et al., Appellants, v. CITY OF BEAUMONT, Appellee.
    No. 7726.
    Court of Civil Appeals of Texas, Beaumont.
    May 29, 1975.
    Rehearing Denied July 10, 1975.

      Michael S. Petit, Harold Peterson, Dale Dowell, Beaumont, for appellants.
    O. J. Weber, Jr., Kenneth E. Wall, Jr., Beaumont, for appellee.
   KEITH, Justice.

Plaintiffs appeal from an adverse judgment rendered in favor of the City of Beaumont after the trial court sustained the City’s motion for summary judgment.

On August 8, 1969, the minor plaintiff, then sixteen years of age, sustained injuries in the course of his employment with the lessee of Beaumont Municipal Airport. He was engaged in disassembling the beacon from the tower on a building when it toppled from its moorings causing the boy to fall to the ground, whereby he sustained serious injuries. After receiving workmen’s compensation benefits from his employer’s carrier, this suit was brought against the City of Beaumont, a Home Rule city, to recover his damages.

Plaintiffs’ contentions were set out in considerable detail in an opinion by Justice Stephenson when another facet of this case was under review. City of Beaumont v. Ranger Insurance Company, 505 S.W.2d 934, 935-936 (Tex.Civ.App. — Beaumont 1974, writ ref’d n. r. e.)

City answered tendering the defense, inter alia, of sovereign or governmental immunity and moved for summary judgment. It is from the summary judgment entered in favor of City that plaintiffs and interve-nor appeal.

Plaintiff labors under an extremely heavy and difficult burden in this case. Indeed, his able counsel concede that to prevail he must persuade us to overrule the decision of our Supreme Court in City of Corsicana v. Wren, 159 Tex. 202, 317 S.W.2d 516 (1958), which in turn held valid a statute [Vernon’s Tex.Rev.Civ.Stat.Ann. art. 46d-15 (1969)] which legislatively determined that the operation of a municipal airport was a governmental function. Thus, we do not write upon a clean slate; consequently, we decline to overrule Wren and its progeny. As an intermediate court, we are bound to follow the decisions of our highest court; and, if Wren is to be altered, “any change in the rule should be made by this [Supreme] Court rather than the intermediate court.” Wilkinson v. Stevison, 514 S.W.2d 895, 897 (Tex.1974).

Plaintiff argues, very persuasively, that the courts are not bound by the legislative declaration in the Municipal Airports Act that municipal activities in connection therewith are governmental functions; and, to that extent, Tex.Rev.Civ.Stat.Ann. art. 46d-15 is unconstitutional. The authorities cited, while pertinent, are those cited by Justice Greenhill in his Wren dissent. We are not at liberty to accept the argument which would destroy the binding effect of the determination made in Wren.

The doctrine of stare decisis prevents our reconsideration of the rule enunciated in Wren, supra. In Swilley v. McCain, 374 S.W.2d 871, 875 (Tex.1964), the rule governing our review of the points under discussion is stated in these words:

“After a principle, rule or proposition of law has been squarely decided by the Supreme Court, or the highest court of the State having jurisdiction of the particular case, the decision is accepted as a binding precedent by the same court or other courts of lower rank when the very point is again presented in a subsequent suit between different parties.”

Not being at liberty to reexamine the rule announced in Wren under the doctrine of stare decisis, we overrule points one and two.

By point three plaintiff contends that the legislative declaration in the Municipal Airports Act “was changed prior to the injuries complained of in this cause by the passage of the Texas Tort Claims Act.” Again, we disagree.

The Texas Tort Claims Act, Tex. Rev.Civ.Stat.Aim. art 6252-19 (1970), became effective January 1, 1970 [Id. § 22] while plaintiff sustained his injuries on August 8, 1969. Section 14 of the Act reads:

“The provisions of this Act shall not apply to:
“(1) Any claim based upon an act or omission which occurred prior to the effective date of this Act.”

City had governmental immunity at the time of the accident and we follow the rule enunciated in City of Houston v. George, 479 S.W.2d 257, 259 (Tex.1972), wherein the Court said:

“This court does not choose to overrule * * * [City of Corsicana v. Wren, as applied to this case] ⅞ ⅜ * for [the] purposes of allowing recovery in this one case, ⅛ *

Point three is overruled.

Finally, plaintiff argues that the Municipal Airports Act “does not apply to airport premises leased by a city to a third party.” The Act itself [Art. 46d-4(b)], quoted in the margin, permits leasing of the airport premises to another.

There is nothing in the Act which implies that the City loses its sovereign immunity by leasing the airport to another. The acts and omissions which plaintiff charged the City are all items classified as “governmental” by the Act itself. Since the purpose of the Act was to confer sovereign immunity, this Court must not, under the authorities previously cited, thwart the plain legislative intent by destroying the City’s immunity simply because it was a lessor and not an operator of the airport.

We do not reach the argument of plaintiff that the City did not, in its summary judgment proof, negate any actionable negligence on its part proximately causing plaintiff’s injuries and damages. We recognize the thrust of the summary judgment rule in such cases [see, e. g., Guidry v. Neches Butane Products Company, 476 S.W.2d 666, 668 (Tex.1972)], but such rules are inapplicable to the case which we review. The only question is one of law— governmental immunity of the City and that is controlled by Wren.

The question of negligence of the City is not pertinent to the cause for, under the doctrine of governmental immunity, we do not reach the question of factual liability of the City.

Point four is overruled and the judgment of the trial court is in all things affirmed.

      . In the cited case, this court held that Ranger was obligated to defend the City because of a policy of liability insurance theretofore procured by and furnished to City by the lessee of the airport.

      . The minor plaintiff was joined by his father, individually and as next friend, and Aetna Casualty and Surety Company, the workmen’s compensation insurance carrier for the minor plaintiff’s employer, intervened seeking to enforce its subrogation rights. We will not have occasion to refer to either the father or the compensation carrier hereafter and will refer to the minor as plaintiff and the defendant simply as “City.”

      . Wren, supra, has been cited and followed in these cases: Dobbins v. Texas Turnpike Authority, 496 S.W.2d 744, 747 (Tex.Civ. App. — Texarkana 1973, writ ref’d n. r. e.), in upholding a legislative declaration that a particular activity is “governmental” and protected by the doctrine of sovereign immunity except as modified by statute; State v. City of Dallas, 319 S.W.2d 767, 774 (Tex. Civ.App. — Austin 1958), affirmed 160 Tex. 348, 331 S.W.2d 737 (1960), upholding an act relating to the relocation of public utilities inside of state highway rights-of-way; Atkinson v. City of Dallas, 353 S.W.2d 275, 277 (Tex.Civ.App. — Dallas 1961, writ refd n. r. e.), denying an injunction to restrain the acquisition of additional airport runways; Tompldns v. City of El Paso, 449 F.2d 842, 844 (5th Cir. 1971), following Wren and holding that a sidewalk adjacent to the city airport was a part thereof and the city was protected under the statutory grant of governmental immunity upheld in Wren; Strauss v. Decatur Park District, 177 F.Supp. 881, 885 (S.D.I11.1959), which followed Wren on the theory of governmental immunity.
      But, in Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 704 (1959), Justice Greenhill, speaking for a unanimous court, raised a flag on Wren in footnote 11 by pointedly noting that he and three other justices had dissented in Wren which was not cited in the body of the opinion although it was pertinent to the discussion.

      . “Under Other Operation. Except as may be limited by the terms and conditions of any grant, loan, or agreement pursuant to Section 12 of this Act, a municipality may by contract, lease or other arrangement, upon a consideration fixed by it, grant to any qualified person for a term not to exceed forty (40) years the privilege of operating, as agent of the municipality or otherwise, any airport owned or controlled by- the municipality.”
      Section 12 mentioned in the quotation above relates to acceptance of federal and state aid and has no applicability to our case.


author: DIES, Chief Justice.

text:
    MUNZENRIEDER & ASSOCIATES, INC., d/b/a United Freight Sales, Appellant, v. Robert DAIGLE and Glenn W. Broussard, Appellees.
    No. 7702.
    Court of Civil Appeals of Texas, Beaumont.
    July 10, 1975.

      Terry L. Belt, Austin, for appellant.
    Barry K. Bishop, Austin, for appellees.
   DIES, Chief Justice.

Plaintiff below, Munzenrieder & Associates, Inc., d/b/a United Freight Sales (appellant), sought injunction against Robert Daigle and Glenn W. Broussard, defendants (appellees), to prohibit them from engaging in a competitive business. Trial was to the court without a jury who denied the injunction, from which plaintiff perfects this appeal. We affirm the trial court’s judgment.

Plaintiff, a national retail chain selling furniture, sewing machines and stereo equipment, operates a store in Austin, Texas, under the name of “United Freight Sales.” Both defendants worked at this outlet and signed agreements with plaintiff not to engage in a competitive business for two years after termination of employment with plaintiff in Travis, Bastrop, Hays, and Williamson counties. Within this period, defendants opened a store under the name of “Texas Furniture Outlet” at a location in Austin previously used by plaintiff.

The court filed Findings of Fact and Conclusions of law among which were the following:

“10. The only store presently being operated by Plaintiff in the state of Texas is located at 6535 North Lamar, Austin, Travis County, Texas. While employed by Plaintiff, Defendant, ROBERT DAIGLE, acted as a salesman and received training in techniques of selling sewing machines. Specifically, said Defendant was trained to damage an advertised machine so it would have a shoddy appearance; to maladjust an advertised machine so that the tension, stitch length, and material feed would appear faulty; and to represent to Plaintiff’s customers that its stock was freight goods, that is, unclaimed freight, damaged freight, or freight overshipments. Said Defendant placed no orders for goods for Plaintiff, had no contact with Plaintiff’s suppliers, placed no advertising, and received no training in inventory control.
“11. Plaintiff actively represents that its merchandise is freight goods, such as unclaimed freight, damaged freight, and freight overshipments. None of Plaintiff’s merchandise is of such category and Plaintiff receives its merchandise from regular suppliers.
“12. Plaintiff regularly makes alluring but insincere offers to sell a particular product which Plaintiff in truth does not intend or want to sell. Its purpose is to switch consumers from buying the advertised merchandise, in order to sell something else, usually at a higher price or on a basis more advantageous to the Plaintiff. Plaintiff fails to make a bona fide effort to sell the advertised product.
“13. Plaintiff regularly engages in the practice of discouraging the purchase of advertised merchandise as part of a bait scheme to sell other merchandise. Among such acts or practices which Plaintiff engages in are the following:
“(a) Plaintiff disparages by acts or words the advertised product or disparages the guarantee, in connection with it.
“(b) Plaintiff regularly shows or demonstrates an advertised product which is defective, unusable, or impractical for the purpose represented or implied in the advertisement, and in some instances, materially damages such merchandise so that it will be. defective. “(c) Plaintiff intentionally causes confusion as to the source of its merchandise and the reason for its pricing.”

Defendant Daigle testified plaintiff would frequently advertise “leaders” when they didn’t have the merchandise to back up the ads. That while at plaintiff’s store they engaged in “bait and switch” operations. That is, they would advertise a leader sewing machine and then damage it (with a hammer) in a backroom of the plaintiff’s store so it appeared faulty. This machine was advertised at about cost price. When it was demonstrated to a customer its damaged condition produced dissatisfaction, and the customer was then “switched” to another machine. Defendant Broussard was trained to tell customers the merchandise was “freight surplus, unclaimed freight or factory surplus.”

Jacob Williams, employed by plaintiff at the time he testified, said during the eight months he had worked there he had sold only one “leader” and this (the sale of a leader) was really a joke. When the customer comes in to see the leader (a Singer) he generally states there is no warranty or guarantee on the Singer, no accessory kit with it, no portable case or cabinet, and that it is designed primarily to sew on just lightweight materials. While at the Waco store they would take the top off the Singer and “just messed up the inside gears so it wouldn’t work properly.” They really never tried to sell the Singer (leader) but, another brand. He tells customers the reason for low cost is the merchandise is “unclaimed freight.” When the Domestic machines (the ones they push) come in he uncrates them, removes the factory warranty, and replaces it with plaintiff’s warranty.

Daigle was shown by plaintiff’s manager how to damage a leader. First they threw away the accessory kit and the guarantee card, and then, with a claw hammer, damaged the outside of the machine “to make it appear as freight damaged.” The “feed dog” was “adjusted” so that “one feed dog would move it through at a different pace than the other . . . causing the stitch not to be straight. . . . ” The “thread take-up lever” was beat “where it would rub and when it goes up and down very rapidly, it would make a noise and no one was interested at all in a sewing machine that did not operate quietly. . . . ” An officer of plaintiff told him their name “ ‘Freight Sales is our gimmick . that we use to sell customers and that it’s a white lie.’ ”

Broussard’s bait and switch training was essentially the same as Daigle’s. To get the customer away from the leader he was told it would not sew on heavyweight materials. It carried no warranty. “[M]ake it look like it really wouldn’t be exactly a sound purchase.”

While a vice president of plaintiff company denied “bait and switch” training or tactics, this testimony certainly supports the court’s findings. And, of course, it is so well-settled as to need no recitation of authority, when these findings are so supported they are binding on this court.

Defendants urge that the above conduct precludes the equitable relief plaintiff seeks under the doctrine of “unclean hands.” This doctrine simply stated requires those coming into a court of equity to come with “clean hands.” 80 CJ.S. Equity § 93 (1965) at p. 1006 and cases cited therein. But this general principle of equity is not absolute, and limitations have been placed upon its application. It does not operate to repel all sinners from a court of equity. Kirkland v. Handrick, 173 S.W.2d 735 (Tex.Civ.App. — San Antonio 1943, writ ref’d w.o.m.). It is also firmly entrenched in this jurisdiction that the conduct complained of must arise directly out of the transaction in issue. Pacific Mutual Life Insur. Co. v. Westglen Park, Inc., 160 Tex. 1, 325 S.W.2d 113 (1959). The party relying upon this doctrine must show that he himself has been injured by the conduct in order to justify application of the principle, and the wrong must have been done to the party himself rather than to some third person. Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960). See also Vaughan v. Kizer, 400 S.W.2d 586 (Tex.Civ.App. —Waco 1966, writ ref’d n.r.e.) and Professional Beauty Products, Inc. v. Schmid, 497 S.W.2d 597 [Tex.Civ.App. — El Paso 1973, aff’d in part sub nom., Professional Beauty Products, Inc. v. Derington, 513 S.W.2d 236 (Tex.Civ.App. — El Paso 1974, writ ref’d n.r. e.)]. However for the reasons to be stated below we do not feel compelled to rely upon this particular contention by the defendants.

As in all cases of this nature, we are governed by the pronouncements made by the Supreme Court in Weatherford Oil Tool Company v. Campbell, 161 Tex. 310, 340 S.W.2d 950 (1960). In Weatherford, the Court enunciated the applicable test:

“[T]he test usually stated for determining the validity of the covenant as written is whether it imposes upon the employee any greater restraint than is reasonably necessary to protect the business and good will of the employer. According to the Restatement [§§ 515, 516] a restraint of trade is unreasonable, in the absence of statutory authorization or dominant social or economic justification, if it is greater than is required for the protection of the person for whose benefit the restraint is imposed or imposes undue hardship upon the person restricted.” Id., at 951.

The burden is on the former employer to show that the covenant not-to-compete is no “greater restraint than is reasonably necessary to protect the business and good will of the employer.” Carpenter v. Southern Properties, 299 S.W. 440 (Tex.Civ.App. —Dallas 1927, writ refd).

The trial court found that the restrictive covenant was not reasonable because “such provisions impose a greater restraint than is reasonably necessary to protect the business and good will and are not essential to the protection of the business and good will of Plaintiff,” that “[t]he gross sales of Plaintiff are now substantially the same as before Texas Furniture Outlet began business and have not declined as a result of the conduct of the business of Texas Furniture Outlet” and that- “Texas Furniture Outlet’s store at 1006 South Lamar and Plaintiff’s store at 6535 North Lamar are in substantially different trade areas.” Plaintiff attacks these findings with a no evidence point of error to the effect that the trial court erred in not finding the restrictive covenant reasonable.

In attempting to uphold their burden of proof, plaintiff tried to show that the financial position of their store had declined as a result of defendants’ alleged competition. But upon cross-examination, plaintiff’s own witnesses stated that profits had not necessarily decreased, that gross sales had not necessarily decreased, and that some of the fluctuation in sales was somewhat in relation to the general state of the depressed economy. In response to a question as to plaintiff’s financial information, plaintiff’s comptroller stated that:

“I am testifying what the financial data shows, increased cost. Since sales have held constant it seems like there wasn’t really much problem in the sales’ area but the cost of operating the store increased and the markup on the- merchandise decreased which caused a decline in profits.”

This testimony shows that the decline, if any, of plaintiff’s profits was due to factors unrelated to defendants’ activities. We thus fail to see how plaintiff’s alleged claim of financial loss can be supported by the evidence of its own witnesses. The no evidence point is without merit and overruled.

Plaintiff also attempted to show that the defendants were using plaintiff’s advertising techniques and methods which they learned and acquired from the plaintiff. But the use of plaintiff’s methods which proves no threat to plaintiff are not sufficient grounds to uphold a covenant not-to-compete. Electronic Data Systems Corporation v. Kinder, 360 F.Supp. 1044 (N.D.Tex.1973) aff’d in 497 F.2d 222 (5th Cir. 1974). Further, the mere training of the defendant by the plaintiff will not, in and of itself, support the enforcement of such a restrictive covenant. Kidde Sales & Service, Inc. v. Peairson, 493 S.W.2d 326 (Tex.Civ.App. — Houston [1st Dist.] 1973, no writ). Other jurisdictions have supported this conclusion. See for example Clark Paper & Mfg. Co. v. Stenacher, 236 N.Y. 312, 140 N.E. 708 (1923).

Beyond the above summarized evidence, plaintiff made no other attempt to show that its business was being harmed in any way by the defendants alleged competitive activities. We do not think it necessary, nor would such an effort be expedient, for us to attempt a summarization or outline of the type of evidence required to show what is “reasonably necessary for the protection of an employer’s business” in a case of this nature. Obviously, this would necessarily vary with the circumstances of each case. To do otherwise would, in our opinion, be to proceed beyond our judicial function. We hold that plaintiff’s evidence, or lack thereof, was insufficient under thé test as announced in Weatherford Oil Tool Company v. Campbell, supra, and that plaintiff failed to sustain its burden of proof in demonstrating that the covenant in question was reasonably necessary to the protection of its business and good will.

Plaintiff’s evidence was weak, at best, and the trial court was justified in concluding that the covenant under question was not reasonably necessary for the protection of its business. As was said in Security Services, Inc. v. Priest, 507 S.W.2d 592 (Tex.Civ. App. — Dallas 1974, no writ):

“We conclude that plaintiff has not established a clear right to enforcement of the covenant against competition. Such covenants are not favored by the courts because of the public policy against restraints of trade and the hardship resulting from interference with a man’s means of livelihood, [citations omitted] . The burden is on the former employer to go beyond the terms of the employment contract and establish by satisfactory evidence both the necessity for and the reasonableness of the restraint on competition which he seeks to enforce, [citations omitted].” Id., at 594, 595.

And in concurring with the majority in Priest, Chief Justice Williams used the following language which we think pertinent to the case at bar:

“In my opinion the judgment should be affirmed on the sole ground that plaintiff has failed to present sufficient evidence that defendant’s admitted competitive endeavours have damaged plaintiff’s business so as to justify the issuance of an injunction. Such being true the court did not abuse its discretion in denying equitable relief.” Id., at 596.

We cannot say as a matter of law that the trial court was in error in reaching its conclusions. See Thames v. Rotary Engineering Company, 315 S.W.2d 589 (Tex.Civ. App. — El Paso 1958, writ ref’d n.r.e.) which reaffirmed the principle that a trial court has wide discretionary powers as to the enforceability of matters in equity.

Finding no error, the judgment of the trial court is in all things affirmed.


text:
    A. J. RICHARDSON et al., Appellants, v. Hugh D. HOLMES, Appellee.
    No. 7672.
    Court of Civil Appeals of Texas, Beaumont.
    June 12, 1975.
    As Amended on Denial of Rehearing July 10, 1975.

      Ralph M. Zeleskey, Lufkin, Adams & Adams, Jasper, for appellants.
    Jim M. Perdue, Houston, Forse, Forse & Hilliard, Newton, for appellee.
   DIES, Chief Justice.

This is a medical malpractice suit. Judgment was given for plaintiff (deceased’s surviving husband-appellee) on the following jury findings:

1. The defendants (physician-appellant) delayed in transferring Mrs. Rhoda Holmes to another physician longer than a doctor of ordinary prudence would acting under the same or similar circumstances, engaged in the practice of medicine in this or similar communities.

2. That such delay was a proximate cause of Rhoda Holmes’ death.

3. That defendants failed to obtain such consultations with specialists in the field of diagnosing and healing abdominal conditions and complications as would have been obtained by a physician of ordinary prudence, engaged in the practice of medicine in this or similar communities during the time Rhoda Holmes was hospitalized in Jasper Memorial Hospital, July 18-28, 1971.

4. That such failure was a proximate cause of her death.

5. That defendants failed to obtain such x-rays of Mrs. Rhoda Holmes abdomen from July 22 through July 28, 1971, as would have been obtained by a physician of ordinary prudence acting under the same or similar circumstances, engaged in the practice of medicine in this or similar communities.

6. That such failure was a proximate cause of her death.

7. That Dr. A. J. Richardson, Jr., failed to obtain the express consent and authorization of Mrs. Holmes to perform the hysterectomy of July 19, 1971.

8. That the hysterectomy resulted in abdominal complications including a gangrenous bowel.

9. That the abdominal complications were a producing cause of her death.

We first take up the factual sufficiency of the evidence so support the jury’s findings that defendants were negligent in delaying Mrs. Holmes’ transfer to Beaumont (S.I. No. 1) and were negligent in failing to obtain earlier consultation with specialists (S.I. No. 2). In passing upon the “no evidence” points we consider the evidence favorable to the plaintiff-appellee; in passing upon the “insufficiency of the evidence” points we consider the record as a whole.

A discussion of this evidence follows. Its length is oppressive but unavoidable.

The first medical witness called was Dr. A. J. Richardson, Jr., a general practitioner in Jasper, Texas. Mrs. Holmes was admitted in the Jasper Memorial Hospital on the night of July 18 for elective surgery. On July 19 defendant Dr. W. D. Bailey did an AP repair on the patient; then he and Dr. Richardson performed the hysterectomy. They were recommended by Dr. Thomas R. Jones. On the afternoon of the next day— Tuesday — she began to vomit. The vomit was brown in color, and the patient’s temperature was 102.4. Vomiting occurred that afternoon and night, but by 10 P.M. her fever — under medication — was reduced to 99.4. The vomiting at 10 P.M. that evening was “projectile” — or projected out. At 11:25 P.M. vomit was green, but her fever remained just over 99°.

At 1:25 on the 21st of July, the nurses’ records show more vomiting of dark liquid which continued at various times into mid-morning. At 10:30 A.M. her stomach was slightly distended, or bloated, which became very distended by afternoon. She vomited dark green which Dr. Richardson said was bile from the gall bladder. At 6:30 P.M. he (the doctor) put a tube in her stomach to help the bloating and vomiting.

On the 22nd, she remained intubated. She had a “fair eight hours” but continued to vomit. At 10:30 A.M. she was x-rayed, which was diagnosed by the x-ray doctor as showing paralytic ileus. On the 24th she still had some pain and vomiting.

On the morning of the 25th, Sunday, Dr. Richardson’s diagnosis was “still paralytic ileus, persistent.” Blood work and the temperature indicated infection such as peritonitis. Early that morning her temperature was 101.4. At 4:30 A.M. a colon tube was inserted, and the patient expelled large amounts of flatus (gas). At 5 A.M. she appeared jaundiced; she took no nutrition. In fact, the records show she took almost none the entire time of her stay at Jasper. At 10:20 A.M. she sat on the side of the bed. At noon vomiting continued, which at 2 P.M. was at fifteen minute intervals. She remained intubated. By Monday — 26th— “My diagnosis was she still had her peritonitis and were [was] still concerned about the persistent ileus and were [was] beginning to consider other things.” No further x-rays were ordered. On the 26th “[p]atient had large amount of serous drainage on dressing.”

“We [the doctors] did not think she needed an x-ray that day.” (26th).

On the 27th she was still intubated. Her complaints were essentially the same as the 26th. At 8:40 patient was given a slush enema producing large amounts “of flatus there with particles of solid stool.”

On the next day, x-rays were ordered at 11 A.M. Drainage from the incision was “a large amount of brown serous liquid and foul smelling odor.” At 3:20 P.M. she was transferred to Beaumont. Records from the hospital in Beaumont reveal Dr. Miller opened her incision and “immediately voluminous amounts of fecal fluid escaped from the wound, and it became obvious there was a dehiscence beneath the skin of the entire abdominal wall. On removing several of the sutures a loop of gangrenous bowel was presented between the separated fascia edges of the wound with considerable exudate around the bowel indicating that it had been present in this position for sometime. The bowel was gangrenous and black.”

Dr. Kenneth T. Miller, a surgeon in Beaumont, admitted Mrs. Holmes to St. Elizabeth’s Hospital on July 28th for “diagnosis and treatment for abscess and probable bowel obstruction.” After seeing her, he ordered an enema, got partial results, which meant she didn’t have a complete obstruction. He operated on her within three or four hours after the initial examination. At the examination “she was alert, cooperative, really belied the severity of her disease. She didn’t look like she was all that critical until I opened the wound in the abdomen.” She had had no fecal vomiting. This she knew because of her background as a nurse. “The calibre and type of material that was in her nasal gastric tube was certainly not suggestive of obstruction of the gut.” He regarded her as a surgical emergency because “in the mid position of the wound there was a brownish, foul, thin fluid escaping from between some of the sutures. ... On opening the wound it was apparent that there was some bowel interposed between the layers of the abdominal wall by virtue of the fact that sutures had given way and the bowel was black gangrenous. This immediately put this into an emergency category. * * *

“On removing several of the sutures a loop of gangrenous bowel was presented between the separated fascial edges of the wound with considerable exudate about the bowel. * * *

“[E]xudate is a reaction of nature . tissues are trying to wall off, really trying to heal an area. . . . [T]his doesn’t occur immediately, it probably takes, oh, I’m sure within twelve hours there is some of it forming, but it is hard to tell how long it has been there. I would think that this gut had been interposed for at least twelve hours. . . . [W]hat gave a false clinical impression perhaps, in that this patient’s abdomen when I saw her was not real tight and distended like in an obstruction or even an ileus . . . and yet she was apparently decompressing. I think she told me this leakage had started the day before. . It [the bowel] was between the skin and the fascia which is the fat layer.” It was not inadvertently sewed into the fascia. There is no way to tell what caused it. It could be the result of an infection. His diagnosis of mesenteric thrombosis or gangrenous bowel was suspected before he opened the wound by the foul drainage. There was no way of knowing of the black bowel except opening the wound. It was the foul drainage that put him on notice of the problem. He feels that by virtue of his special training he may be able to determine things in cases of intestinal obstruction that a general practitioner would not be familiar with. The general practitioner is not qualified to reopen her incision and do what was necessary confronted with a gangrenous bowel. “Fm sure the woman had paralytic ileus in some form post-op. How long, where this became mesenteric thrombosis with devitalized bowel is something I don’t know how one could determine because a dynamic ileus can last sometimes for a week.” He removed approximately eighty percent of her bowel. Her gangrenous bowel “[pjrobably could have occurred in three days.” A mysenteric thrombosis is a clotting of blood in the veins and arteries. It is very difficult in these cases to know when one should go back in. At the time he originally saw her, he did not suspect mesenteric thrombosis. “The convincing factor as far as I was concerned was when I did this surgery and opened her wound.” Her problems were caused by the clotting. She did pretty well after the surgery and would probably have made it if she hadn’t developed renal failure.

The next medical witness was Dr. Edward A. Fitch of Pasadena, Texas, a general and thoracic surgeon. He had reviewed the hospital and autopsy records of Mrs. Holmes. From the records he concluded Mrs. Holmes had paralytic ileus at Jasper following the surgery. The records “gave me the definite notion that a specialist . should have . . . given an opinion on the patient.” He was asked when this would have been appropriate in the exercise of proper standards of medicine. His answer: “The records don’t give me the information as to when it would have been appropriate. It was sometime prior to the 26th. On the 26th it was undoubtedly appropriate to get their consultation on the 26th, according to the records.”

He was asked the cause of her problem that required ultimate surgical intervention. He answered: “I am not endowed with divine powers.” He thought the Jasper doctors recognized and adequately treated the paralytic ileus. The limits of this disorder would probably be put “at anywhere from one day to ten days, . [bjut on the fifth or sixth day of an unre-sponding paralytic ileus, an astute physician starts looking for hidden factors. And on the sixth and seventh day he does everything within his power to find other factors. [Yjou should be very, very alarmed when the sixth and seventh day come around. [I]n my opinion, it is perfectly acceptable for the ‘occasional abdominal surgeon’ to handle his own paralytic ileus up through the third and fourth day. Beyond that the condition is not common enough in the ordinary occasional abdominal surgeon’s practice for him to be conversant with it unless he has special skills. . I am convinced that if she had been seen by a surgeon on the 26th she would have had surgery on the 26th. Before the 26th, I can’t swear to it.

“The records tell us that we know there was advanced gangrene on the 28th in Beaumont. We know that the gangrene or serious irreversible gangrenous conditions had to exist on the 27th for it to have been that advanced on the 28th. I think it is possible that the build-up to that existed on the 26th.”

He testified that from a medical standpoint it is a judgment call when a paralytic ileus converts itself into a mechanical obstruction.

Dr. Robert Bucldin, attorney, pathologist of La Jolla, California, had reviewed Mrs. Holmes’ hospital and autopsy records. She remained at St. Elizabeth’s in Beaumont until August 27 when she was transferred to the kidney unit at St. Joseph’s in Houston. She died on September 6, 1971. “An autopsy showed extensive brain changes, inflammatory changes, bronchial pneumonia, pulmonary abscesses, multiple thrombi in mesenteric and retroperitoneal veins, and evidence of vascular disease.” He concluded from the records, “Yes, it is quite obvious from the hospital records that the delay in instituting appropriate treatment, especially surgery, did result in serious complications which eventually caused the death of Mrs. Holmes.”

In King v. Flamm, 442 S.W.2d 679, 681 (Tex.1969) the Texas Supreme Court had this to say:

“The general practitioner is not required to consult with a specialist, however, on every conceivable complication that may arise in his practice. . . . If he exercises the care and skill of other physicians similarly situated, he is not responsible for an error of judgment even though a specialist would not have made the same mistake. But there is a duty to seek consultation with, or refer the patient to, a specialist when he knows, or in the exercise of reasonable care should know, that the services of a specialist are indicated. Here, as in other cases of alleged medical malpractice, the defendant is to be judged on the basis of the standards and practices of his profession. If there is expert testimony fairly supporting the conclusion that a reasonably careful and prudent general practitioner would have sought consultation under the same or similar circumstances, the trier of fact is entitled to find that the defendant was negligent in failing to do so.”

See also 35 A.L.R.3d 349, 371 (1971).

So clearly our Supreme Court has said that conduct of which, the jury found defendants guilty in S.I. Nos. 1 and 2 is medical malpractice. And viewing the evidence herein summarized in the light most favorable to appellees — which we must — we believe the evidence factually sufficient to support the jury’s findings to these issues.

Appellant’s points of error one through six are overruled. This makes it unnecessary to address' ourselves to points seven through nine, and they are overruled.

Points ten through fifteen complain of the factual deficiency of the evidence to support findings of proximate cause of Rhoda Holmes’ death resulting from its findings of S.I. Nos. 1 and 3. Proximate cause must exist of course and involves two elements, both of which must be present: cause in fact and foreseeability. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560, 564 (1961).

Dr. Miller’s testimony reveals that the necessity for the removal of eighty percent of Mrs. Holmes bowels was gangrene, which began at some time before the Beaumont operation of the 28th. That in such situation the sooner surgery is instituted the better the patient’s chance of recovery.

Dr. Fitch was convinced if she had seen a surgeon on the 26th, she would have had surgery. Dr. Bucklin testified, “Yes, it is quite obvious from the hospital records that the delay in instituting appropriate treatment, especially surgery, did result in serious complications which eventually caused the death of Mrs. Holmes.” We believe that the foregoing evidence supports the jury finding that the delay in transferring Mrs. Holmes to another physician was a proximate cause of her death. The “no evidence” points are overruled as being without merit. When the record is considered as a whole, we are also of the opinion that “insufficient points” and against the overwhelming preponderance of the evidence points are also without merit and are thus overruled.

Appellant’s twenty-seventh point complains of the trial court’s instruction that the jury could consider circumstantial evidence in ascertaining the facts. We believe this instruction was improper in light of the requirements and language of Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949), but in view of the fact this record is replete with expert medical testimony as required by Bowles, we find it harmless error. Texas Rules of Civil Procedure, rule 434.

Appellant’s twenty-eighth point complains of the “Trial Court’s refusal to permit defendants to even discuss before the jury plaintiff’s remarriage, or to prove plaintiff’s present wife’s earnings or the fact that she was doing her household chores in mitigation of damages.”

Plaintiff remarried October 20, 1973. This fact was made known to the jury, but defendants were not permitted to show her earnings or contributions in mitigation of plaintiff’s damages. An economist, Dr. Donald L. Huddle, testified the “economic loss” of Mrs. Holmes was $249,119 based on such information as her age, health, earnings, work about the home and farm.

Effective at the time this case was tried, Vernon’s Tex.Rev.Civ.Stat.Ann. art. 4675a (1974-1975) follows:

“In an action under this title, evidence of the actual ceremonial remarriage of the surviving spouse is admissible, if such is true, but the defense is prohibited from directly or indirectly mentioning or alluding to any common-law marriage, extramarital relationship, or marital prospects of the surviving spouse.”

Upon initial reading it might appear that the statute meant to allow not only the fact of remarriage but all reasonable inferences and evidence which might be deducted therefrom. For the reasons below, we do not believe that this is the reasonable statutory construction. The cause of action of wrongful death and the recoverable damages are established at the time of death. Dobbs, Remedies § 8.6 at 568 (1973); 87 A.L.R.2d 252 (1968). The effect of subsequent developments after death should not alter the rationale behind the principle and thereby reduce lawfully recoverable damages. Secondly, as in most jurisdictions, it is the rule in Texas that a tortfeasor’s obligation to make restitution for the injury he has caused is undiminished by any compensation received by the injured party from any collateral source. Kainer v. Walker, 377 S.W.2d 613 (Tex.1964). To allow evidence on the effects of remarriage would clearly violate this rule. Further the language of the statute permits only “evidence of the actual ceremonial remarriage” — and nothing more. In light of the above holdings, we feel that if the legislature had intended to allow evidence other than the mere fact of remarriage, it certainly could have stated such. To us, any other interpretation of Tex.Rev.Civ.Stat. Ann. art. 4675a would necessarily involve judicial surmise into the realm of the legislators’ mental processes, a position we do not adopt. Such an interpretation would also involve a conflict with the principles as stated by our Supreme Court.

We also note that at least three other states have also held that while the fact of remarriage is admissible, such evidence does not operate to diminish the damages which are recoverable. See Watson v. Fischbach, 54 Ill.2d 498, 301 N.E.2d 303 (1973); Dubil v. Labate, 52 N.J. 255, 245 A.2d 177 (1968), and Glick v. Allstate Insurance Company, 435 S.W.2d 17 (Mo.App.1968, no writ). The court below was proper in allowing only the fact of remarriage. Appellant’s point twenty-seven is without merit and overruled.

Appellant’s twenty-ninth point is “[tjhere was no evidence Rhoda Holmes was receiving fringe benefits in her employment or that she ever had, and the trial court erred in overruling defendant’s objection to such testimony on this ground thereby permitting the jury to consider the economist’s testimony on damages including the same.” The computed fringe benefits given by the economist included social security, private pensions, retirement, and life and health insurance. The present value which was given to these fringe benefits was $17,351. This figure was computed by the economist by taking 7.8% of the $222,446 amount which was stated to be the amount of Mrs. Holmes’ lost earnings (the $222,446 is exactly the amount awarded by the jury). We sustain this point and hold that this evidence should not have been admitted.

Appellant’s point thirty complains that the damage finding of $222,446 is excessive. The thrust of their argument concerns the refusal of the trial court to admit as mitigation the earnings and/or contributions of the second wife — which we have heretofore answered — and the inclusion of the “fringe benefits” in the economist’s opinion of total economic loss — which we have also previously dealt with. It thus becomes our duty to suggest a remittitur and the time within which to file the same, Tex.R.Civ.P. 440. Having determined that the inclusion of “fringe benefits” in the award was erroneous, we are of the opinion that the damage award of $222,446 is excessive by $17,351. Plaintiff is granted ten days from the date of this opinion within which to file remittitur of this amount. If such remittitur is filed, the judgment of the trial court will be reformed and affirmed,

Otherwise it will be reversed and the cause remanded.

Finding no merit to the other points of error, they are overruled.

Affirmed on condition.


author: CURTISS BROWN, Justice.

text:
    SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellee, v. Charles L. ALLEN, Appellee.
    No. 1082.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 2, 1975.
    Rehearing Denied July 23, 1975.

      Richard B. Miller, Diana E. Marshall, Baker & Botts, Houston, for appellant.
    Donn C. Fullenweider, Robert B. Wallis, Haynes & Fullenweider, Houston, for appel-lee.
   CURTISS BROWN, Justice.

This is an F.E.L.A. case.

Charles L. Allen (Allen or appellee) brought suit for injuries suffered in the course of his employment with Southern Pacific Transportation Company (Southern Pacific or appellant). The case is governed by the Federal Employers’ Liability Act. 45 U.S.C. § 51 et seq. (1972). Allen pled six specific acts or omissions, which he alleged to be negligence and a proximate cause of the incident. He also pled res ipsa loquitur. Southern Pacific pled eight acts or omissions of Allen, which it alleged to be negligence and a proximate cause of the incident in addition to a general denial.

Southern Pacific also filed a motion in limine which in part sought to prevent references or testimony concerning medical expenses or the amount thereof. Appellant contended in its motion that it would demonstrate, by proper evidence, that its payment of such expenses was not subject to the collateral source rule. This contention, will be discussed later. The issues submitted and the answers of the jury were as follows:

1. Do you find from a preponderance of the evidence that, on the occasion in question, defendant, SOUTHERN PACIFIC TRANSPORTATION COMPANY:
(a)(1). failed to use such a device in attaching the
steel pilings to the crane, as would have been used by a reasonably prudent person, under the same or similar circumstances? ANSWER ("Yes" or "No"): 12 — Yes
If you havve answered subpart (1) yes then answer subpart (2).
(2). do you find from a preponderance of the evidence that such failure, if any, vyas a proximate cause of CHARLES ALLEN'S injuries?
ANSWER ("Yes" or “No"): 12 — Yes
(b)(1). failed to use such a method of separating
steel pilings as a reasonably prudent person would have used under same or similar circumstances?
ANSWER ("Yes" or "No"): 12 — No
If you have answered subpart (1) Yes then answer subpart (2).
(2). do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of CHARLES ALLEN's injuries?
ANSWER ("Yes" or "No"): _
(c)(1). failed to provide CHARLES L. ALLEN a
reasonably safe place to work?
ANSWER: ("Yes" or "No"): 12 — No
If you have answered subpart (1) yes then answer subpart (2).
(2) do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of CHARLES ALLEN'S injuries?
ANSWER ("Yes" or "No"): _
By the term “a reasonably safe place to work” is meant such a place as an ordinary prudent person would have furnished under the same or similar circumstances.
You are instructed that defendant was under a duty to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work, and this duty was a continuing one even though the work may have been fleeting or infrequent.
2. Do you find from a preponderance of the evidence that, on the occasion in question:
(a)(1). the plaintiff, Charles Allen, was Instructed
to signal the crane operator to move the pilings to the deep part of the ditch? Answer ("Yes" or “No"): No — 12
If you have answered subpart (1) "Yes" then answer (2)
(2). the plaintiff, Charles Allen, failed to fol-
low his Instructions, if any, to move the pilings to the deep part of the ditch?
Answer ("Yes" or "No"): _
If you have answered subpart (2) "Yes", then answer subpart (3).
(3). Do you find from a preponderance of the
evidence that such failure, If any, was negligent?
Answer ("Yes" or "No"): No — 12
If you have answered subpart (3) "Yes", then answer subpart (4).
(4) Do you find from a preponderance of the evidence that such failure, If any, was a proximate cause of the accident and injuries In question?
Answer ("Yes" or "No"): _
(b)(1). The plaintiff, Charles Allen, failed to keep
such a lookout for his own safety as would have been kept by an ordinarily prudent person in the same or similar circumstances?
Answer ("Yes" or "No"): 12 — Yes
If you have answered subpart (1) "Yes", then answer subpart (2).
(2). Do you find from a preponderance of the evidence that such failure, If any, was a proximate cause of the accident and injuries In question?
Answer ("Yes" or "No"): 12 — No
(c)(1). The plaintiff, Charles Allen, was standing
closer to the crane than a reasonably prudent person would have done under the same or similar circumstances?
Answer ("Yes" or “No"): 12 — No
If you have answered subpart (1) "Yes", then answer Subpart (2).
(2) Do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of the accident and injuries in question?
Answer ("Yes" or "No"): _
If you have answered question(s) 2 or any of the subparts “yes”, then answer the following question.
3. What percentage of the negligence that caused the occurrence do you find from a preponderance of the evidence to be attributable to each of' the parties found by you to have been negligent?
The percentage of negligence attributable to a party is not necessarily measured by the number of acts or omissions found. Answer by stating the percentage opposite each name.
SOUTHERN PACIFIC TRANSPORTATION COMPANY and/or any of its agents
and/or employees . 65 %
CHARLES L. ALLEN . 35 %
In answering this question, you should consider only the negligence of SOUTHERN PACIFIC TRANSPORTATION COMPANY and/or any of its agents and/or employees and the negligence of CHARLES L. ALLEN which you have found to be a proximate cause of the occurrence; therefore, the percentage should add up to 100%.
4.What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate CHARLES L. ALLEN for his injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?
Do not reduce the amount in your answer because of CHARLES L. ALLEN’S negligence, if any. Consider the following elements of damage, if any, and none other:
(a) physical pain and mental anguish In the past. Answer In dollars and
cents, if any .⅜10,000.00
(b) Physical pain and mental anguish which, In reasonable probability, he will suffer In the future. Answer In
dollars and cents, If any.$40,000.00
(c) Loss of earnings In the past. Answer In dollars and cents, If any .... $10,000,00
(d) Loss of earning capacity which, In reasonable probability, he will sustain in the future. Answer in dollars
and cents, if any .$103,000.00
TOTAL AMOUNT, In dollars and cents,
If any: $163,000.00

Upon return of the verdict, and before it was accepted, Allen made a motion for judgment on the verdict. Southern Pacific, feeling that there was a conflict in the findings, requested the jury be sent back for further deliberations. Appellant later filed a motion for judgment on the verdict, and alternatively, moved for a mistrial. The trial court denied appellant’s motions and entered judgment for Allen. No mention was made in the judgment concerning the disregarding of any issue, the award of damages was not reduced by the answer to Special Issue No. 3, and the medical expenses were not disallowed except as to $5,229.38, which was an unreimbursed payment by Southern Pacific. This appeal was then perfected.

Appellant has raised five points of error. The first four are based upon the jury’s answers to Special Issues Numbers 2(b)(2) and 3 and contend that the trial court erred in refusing: to send the jury back; to enter judgment for Allen reduced by thirty-five percent; to declare a mistrial; or to grant a new trial. The fifth point of error concerns the failure to totally disallow the award of medical expenses.

Allen was an employee of the bridges and building division of appellant. On May 29, 1969, he and others were engaged in work on the White Oak Bayou Bridge. They were in the process of removing pilings from a cofferdam. It was necessary that the pilings be separated in order to be returned under a leasing agreement that Southern Pacific had with a supplier. A crane connected to a pile driver was attached to the pilings and they were dropped against the ground next to the bridge to effect the separation. Allen was walking toward the crane on the bridge engaging in conversation with one of the foremen on the bridge when someone shouted. The foreman and Allen were parallel to the pilings and on a straight line with the crane. The pilings came loose from the pile driver and Allen was struck down by the pilings which kicked up and landed on top of him. The foreman was not hit.

As appellant’s first four points are interrelated, they will be discussed together. It is first argued that the trial court violated Rule 301, Texas Rules of Civil Procedure, by failing to enter a judgment which conformed to the verdict.' Southern Pacific contends that absent any proper motion under the above cited Rule, the trial court is without jurisdiction to disregard Special Issue No. 3. Traders & General Ins. Co. v. Heath, 197 S.W.2d 130 (Tex.Civ.App. —Galveston 1946, writ ref’d n. r. e.). Ap-pellee’s reply is that his motion for judgment in open court included the following language:

. and, then, Your Honor, following the instructions in Special Issue No. 3, which is a defensive issue, which we say, on the basis of the answer to Special Issue No. 2, the Court would have to disregard any answer to Special Issue No. 3 as a matter of law, arid as a matter of law it is not applicable. It is simply a percentage factor on which there is no basis to apply in this case and on which there is no conflict.

He contends that this was sufficient as a Rule 301 motion and lack of notice was waived. We do not agree. A Rule 301 motion to disregard a jury finding may be based on a claim either that the finding has no support in the evidence, or that the finding is immaterial. Eubanks v. Winn, 420 S.W.2d 698 (Tex.Sup.1967). The motion presented by Allen sufficiently raised the latter ground. We believe, however, that there is no showing by appellee that the appellant had reasonable notice of the motion or understood the oral motion for judgment to be a motion to disregard the finding. Traders & General Ins. Co. v. Heath, supra; Tex.R.Civ.P. 301. Nevertheless, it is settled that a trial court may disregard a jury finding to a special issue, which is immaterial, upon its own motion. Teas v. Republic National Bank of Dallas, 460 S.W.2d 233 (Tex.Civ.App. — Dallas 1970, writ ref’d n. r. e.). It is only when the issue is material, that the judgment must conform to the finding. Massie v. Hutcheson, 270 S.W. 544 (Tex.Com.App.1925, jdgmt. adopted).

Further, when a trial court does disregard answers to immaterial issues and render judgment, such judgment is not rendered non obstante veredicto. T. A. Mailing & Sons, Inc. v. Ken-Tex Oil Gorp., 418 S.W.2d 324, 326 (Tex.Civ.App. — Austin 1967, writ ref’d n. r. e.). Therefore, if Special Issue No. 3 was immaterial then it was properly disregarded by the trial court. If it was not, then the trial court did not have jurisdiction to disregard it and committed reversible error. Waters v. Bruner, 355 S.W.2d 230 (Tex.Civ.App. — San Antonio 1962, writ ref’d n. r. e.). Special Issue No. 3 is a comparative negligence issue which ordinarily is predicated upon findings of both negligence and proximate cause against the plaintiff. In the case at bar it was predicated upon an affirmative answer to any of the sub-parts of Special Issue No. 2 (which inquired about contributory negligence and proximate cause). Such an issue, when raised by the evidence, relates to an employer’s rights to have damages diminished in proportion to the relationship that a plaintiff’s employee’s negligence bears to 100%. 45 U.S.C. § 53 (1972). It is true that this case is governed by Federal law and when assertions, of Federal rights are plainly and reasonably made they are not to be defeated under the name of local practice. Arnold v. Panhandle and Santa Fe Railway Go., 353 U.S. 360, 362, 77 S.Ct. 840, 1 L.Ed.2d 889 (1957).

First, we hold that the submission of the comparative negligence issue in the F.E.L.A. context is not a submission of general contributory negligence. Both parties pled, raised by evidence, and submitted specific acts and omissions of primary and contributory negligence. The above cited section of the F.E.L.A. refers to diminution of damages not liability. We hold that this was a damage issue and since the appellant failed to carry its burden on the contributory negligence theory, the diminution of damages issue was immaterial. Missouri Pacific R. Co. v. Whittenburg & Alston, 424 S.W.2d 427 (Tex.Sup.1968); Ruiz v. Flexon-ics, 517 S.W.2d 853 (Tex.Civ.App. — Corpus Christi 1974, no writ). This is not the same sort of general submission of liability as in Arnold v. Panhandle and Santa Fe Railway Company, supra; See also Missouri-Kansas-Texas RR. Co. v. Shelton, 383 S.W.2d 842 (Tex.Civ.App. — Dallas 1964, writ ref’d n. r. e.) cert, denied, 382 U.S. 845, 86 S.Ct. 54, 15 L.Ed.2d 85 (1965). We believe that to find that this issue was a general submission of contributory negligence would be to engage in the sort of “metaphysical exercise” condemned by the Texas Supreme Court, albeit in a different context, in Texas Employers’ Insurance Ass’n v. Collins, 156 Tex. 376, 295 S.W.2d 902, 905 (1956). Therefore, as the issue was immaterial, the trial court did not err in disregarding it; or deny appellant a Federal right under name of state practice; or err in failing to grant appellant’s motion for judgment on the verdict.

What we have said concerning the “damage” issue nature of Special Issue No. 3 also suffices as an answer to a contention that there is a conflict between the comparative negligence issue and the preceding contributory negligence issue. As the issue is a damage issue and the appellant failed to carry the burden of proof on liability, then the damage issue and its findings do not have legal significance in terms of creating a conflict. See Missouri Pacific R. Co. v. Whittenburg & Alston, supra.

The question of a conflict therefore is illusory. If Special Issue No. 3 was a general submission of contributory negligence then any apparent conflict could be resolved as in Arnold v. Panhandle and Santa Fe Railway Company, supra, and appellant’s first three points of error might be well taken. If, as we have held, it was not a general submission of contributory negligence, then it would not be a liability issue and any answer to it could be disregarded as immaterial and of no legal significance in terms of creation of a conflict. Howard v. Bachman, 524 S.W.2d 414 (Tex.Civ.App. —Eastland 1975, no writ). The trial court did not err in refusing to send the jury back under Tex.R.Civ.P. 295, and did not err in refusing to grant a mistrial. Appellant’s first four points of error are overruled.

Southern Pacific’s final contention is that the trial court erred in permitting appellee to recover for medical expenses which it had previously paid. Appellee argues that appellant waived its right to recovery of same either through lack of pleading or through failure to complain of the underlying factual finding concerning the applicability of the collateral source rule. Appellee also argues that the collateral source rule is applicable to its recovery. It was stipulated that Southern Pacific paid $22,372.81 in medical expenses incurred by Allen as a result of the injuries suffered. Under the provisions of a policy of insurance, Travelers Insurance Company Policy No. GA 23000, $17,142.43 was reimbursed to the railroad. No question was raised by appellee concerning the $5,229.38 which was unreimbursed and allowed as a credit against the judgment. Evidence was heard by the court out of the presence of the jury panel. The question of the applicability of the collateral source rule was raised by a motion in limine filed by appellant. Payment and set-off were not affirmatively pled by Southern Pacific. Appellant did, however, file a general denial which places the burden on the plaintiff to prove entitlement to recovery of his damages. Shell Chemical Co. v. Lamb, 493 S.W.2d 742 (Tex. Sup.1973). Most importantly, the right plainly asserted with regard to the medical expenses was ineluctably tied to the employer’s and employee’s Federal rights under the F.E.L.A. As we noted above, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice. Therefore, we must examine the merits of the contentions with regard to the collateral source rule and 45 U.S.C. § 55 (1972) in light of the interpretations of the Federal Courts.

In the context of an F.E.L.A. case, there is both the question of the common law collateral source rule and the effect of 45 U.S.C. § 55 (1972) which provides:

Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief. benefit" or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.

See Blake v. Delaware and Hudson Railway Company, 484 F.2d 204 (2d Cir. 1973) (Friendly, J., concurring).

There is an apparent conflict in the Federal Courts concerning the treatment of proceeds under the GA 23000 policy. It is well established, however, that as to payments made by employers, it is the nature of the payments, not their source, which is determinative of the question of the applicability of the collateral source rule. Haughton v. Blackships, 462 F.2d 788 (5th Cir. 1972); Gypsum Carrier, Inc. v. Han-delsman, 307 F.2d 525 (9th Cir. 1962); Hall v. Minnesota Transfer Railway Company, 322 F.Supp. 92 (D.Minn.1971); cf. Bangor & Aroostook R. Co. v. Jones, 36 F.2d 886 (1st Cir. 1929).

In Haughton v. Blackships, Inc., supra, the Fifth Circuit outlined the considerations underlying the application of the collateral source rule:

The policy considerations for the collateral source rule are apparent. On the one hand, an employer-tortfeasor who voluntarily undertakes to indemnify itself against liability by payment into a fund for that purpose, should not be penalized by permitting the plaintiff a double recovery of his benefits under the fund as well as his full measure of damages. On the other hand, where the employer-tort-feasor makes payment directly or indirectly into a fund established for an independent reason, or where such payment by the employer should be considered in the nature of a fringe benefit or deferred compensation, the employer should not be entitled to benefit by setting off such income in mitigation of his responsibility as a tortfeasor. Haughton v. Blackships, supra, at 791.

The GA 23000 is a group policy which provides coverage for both the employee and his family in addition to the “on-duty” injury coverage at issue here. The on-duty clause applies irrespective of the ultimate legal liability of the employer. Cf. Thomas v. Humble Oil & Refining Go., 420 F.2d 793 (4th Cir. 1970). In Hall v. Minnesota Transfer Railway Company, supra, the Court pointed out that insurance would be for the benefit of the employer and not subject to the collateral source rule if it is written to cover only those injuries incurred on the job for which the employer might be liable by statute or common law. While the court there seemed to refer to the GA 23000 policy as a whole, we believe that the reasoning is applicable to the on-duty coverage. In Thomas v. Humble Oil & Refining Co., supra, the disability insurance encompassed in the collective bargaining agreement and seamen’s article applied to maintenance, for which the ship is liable under common law, and therefore not subject to the collateral source rule. In Blake v. Delaware and Hudson Railway Company, 484 F.2d 204 (2d Cir. 1973) Judge Friendly, in his concurring opinion, took the view that § 55 would not permit the set-off of reimbursed payments under the insurance policy in question. In support of this, he cited Bangor & Aroostook R. Co. v. Jones, supra, which held that under § 55 the employer would only be entitled to recover the amount of the premiums actually paid by the railroad.

The collective bargaining agreement in this case between the union handling labor negotiations on behalf of appel-lee and the railroad expressly provides that amounts contributed by Southern Pacific are not “wage-equivalents”. The appellant further presented evidence that it had long followed the policy of providing medical care for on-duty injuries. There is other evidence, however, that the provisions under discussion were obtained as a result of collective bargaining between the union and the railroad. The evidence would further justify the trial court in finding that the coverage provided constituted a fringe benefit despite the provision that they are not “wage-equivalents”. The amount paid in to the fund under this coverage varies from time to time as it may be negotiated between the union, railroad and insurance company. We therefore hold that the trial court correctly applied the collateral source rule in this instance. We need not further consider, therefore, whether § 55 would have the effect of entitling the Railroad to set off only the premiums, not what the premiums bought.

Appellant’s points have been carefully considered and they are overruled.

Affirmed.