text:
    Robert Lee WOOTAN, Appellant, v. AMERICAN MOTORIST INS. CO., Appellee.
    No. 1310.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.
    O. F. Jones, III, Victoria, for appellant.

      Richard C. Keene, San Antonio, James R. Ansell, Galveston, for appellee.
   OPINION

NYE, Chief Justice.

This is an appeal by an injured workman in a workmen’s compensation case. The jury rendered a verdict finding temporary partial incapacity. The maximum statutory benefits for the period of temporary partial incapacity in this case were less than the amounts previously paid to the worker in weekly benefits by the insurance company. Therefore, the trial court entered a take nothing judgment, from which the workman appeals.

Wootan was injured on November 22, 1974, when he fell from a scaffolding at the DuPont Plant in Victoria, Texas, while working in the course and scope of his employment. He was taken to the local plant physician who treated him for relatively minor injuries. He was allowed to return to light duty by the physician and performed light tasks for a period of approximately four months. Wootan was finally returned to general duty on or about April 1, 1975, working in this capacity for approximately ten days. Later he was discharged by the company because of “early quits” and an “apparent personality conflict with the foreman”.

Wootan returned to the plant physician who found him to be in a state of “depressed and anxious” condition describing him as being upset. He was treated by the plant physician, later by his local personal physician, and finally by a Dr. Martin Tower in Galveston, Texas. Wootan was hospitalized for approximately six months in a Galveston hospital where he underwent a series of electrical shock and insulin treatments. At the time of trial, Wootan had no recollection whatsoever of either his fall or the course or scope of treatments following the accident.

First, appellant argues that the charge of the court contained only the standard pattern jury charge definition of “injury” and did not include a definition that a compensable injury under workmen’s compensation law includes and contemplates not only the immediate effects arising from the injury itself, but also the effects of any aggravation of such injury resulting from medical or surgical treatment, when there is no intervening, independent cause to break the chain of causation between the new injury or aggravation and the original injury. Appellant cites United Employers Casualty Company v. Marr, 144 S.W.2d 973 (Tex.Civ.App.—Galveston 1940, writ dism’d). Appellant did not specifically object to the submission of the definition the trial court used, nor did he state the grounds of his objection. He does not complain of the court’s charge by a specific point of error here on appeal. We hold that the argument concerning this alleged error is waived. Texas Employers’ Ins. Ass'n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1002 (1944). See also Rule 274, T.R.C.P., and Chandler v. Chandler, 536 S.W.2d 260 (Tex.Civ.App.—Corpus Christi 1976, writ dism’d).

The appellee contends that appellant’s first three points of error are incorrectly worded since they complain of the jury's answers to special issues 1, 7, 8 and 10 as being against the great weight and preponderance of the evidence, but do not state that the verdict was so contrary to the overwhelming weight of all the evidence as to be manifestly wrong and unjust. Appel-lee argues that failure to include the latter phrase alters the nature of the point; that we are not able to weigh all the evidence under the “great weight and preponderance test”; and the only applicable test in a point so phrased is whether appellee's evidence, standing alone, is sufficient to support the verdict. See- Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960).

Rule 422, T.R.C.P., requires this Court to construe the briefing rules liberally. If the arguments and law under a specific point are such that they will acquaint the court with the complaint, the point of error will be considered. In our opinion, appellant has sufficiently acquainted the court with his complaint regarding the factual sufficiency of the evidence such that the fact-finding power of the Court has been invoked. In such a case, we are required to weigh all the evidence and to remand the case for a new trial if we conclude that the verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust. Ruiz v. Flexonics, 517 S.W.2d 853 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Airway Ins. Co. v. Hank’s Flite Center, Inc., 534 S.W.2d 878, 879-80 (Tex.Sup.1976); O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex.Sup.1976); Bass v. Metzger, 569 S.W.2d 917 (Tex.Civ.App.—Corpus Christi 1978, no writ).

In points of error one through three, appellant attacks the jury’s findings that Wootan suffered only temporary partial incapacity, that he was not totally and permanently disabled, and that his medical expenses incurred after March 31, 1975, were not caused by the accident made the basis of this suit. Three medical witnesses were called by the appellant; two testified in person and one by deposition. A review of all of this evidence substantiates the verdict of the jury. One of the doctors presented evidence that Wootan’s medical condition was not caused by the physical injury. This doctor described various treatments of the appellant for various physical problems that he had prior to his injury of November 22, 1974. This doctor described his present condition as endogenous depression which means a condition that has its beginning from within the person. Only one physician suggested that the physical injury and the depression of the appellant were associated. If this raised a conflict in the evidence, the jury was free to resolve the conflict as part of their fact-finding responsibilities. However, such testimony did not have the effect of being the great weight and preponderance of the considered evidence.

The appellant had the burden of proof that the injury he sustained on November 22, 1974, was the producing cause of the depression of which he was complaining at the time of trial. His proof fell short of convincing the fact-finders and us. See Parker v. Employers Mutual Liability Ins. Co. of Wis., 440 S.W.2d 43 (Tex.Sup.1969). After considering all of the evidence, we hold that the jury’s findings are not so against the great weight and preponderance of the evidence as to be wrong and unjust. Appellant’s points one through three are overruled.

Appellant’s fourth point of error is that the disabled condition of the appellant and the incapacity that the appellant may have had at the time of trial was, as a matter of law, caused by his accident on November 22, 1974. Some of the evidence adduced at trial was otherwise, which was sufficient under the light of the rules laid down in In Re King’s Estate to overrule this point of error.

The judgment of the trial court is AFFIRMED.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    AMERICAN NATIONAL INSURANCE COMPANY, Appellant, v. Julian M. BRIONES, Appellee.
    No. 1308.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.

      Stephen E. Ulrich, Royston, Rayzor, Vick-ery & Williams, Brownsville, for appellant.
    Carlos F. Vela, Harlingen, for appellee.
   OPINION

YOUNG, Justice.

In this appeal the insurer attempts to overturn the beneficiary’s recovery on a $500.00 life insurance policy. Julian M. Briones, as beneficiary, filed this suit against American National Insurance Company to recover payment on a policy issued to Tomasa M. Briones, deceased. American National defended asserting that the deceased, at the time of application, was not in “good health” as the policy required and that, consequently, appellant was not liable to appellee. Appellant responded that the “good health” requirement of the policy had been waived by its purported agent, Mr. Garcia, who informed the deceased at the time of her application that as long as she was walking around she could purchase the insurance in question. Trial was to the court without a jury. The court rendered judgment for $500.00 plus $250.00 attorney’s fees in appellee’s favor, from which judgment American National Insurance Company appeals. We affirm.

The pleadings and stipulation of the parties indicate that Tomasa M. Briones, who was not in good health and suffered from chronic diabetes and heart disease, made a written application to appellant for life insurance on August 17, 1971. The application made statements that Tomasa Briones did not suffer from diabetes, heart disease or other physical defects. Tomasa Briones did not know or understand the English language nor did she understand the application, so the representative of the defendant, Mr. Garcia, filled out the application making false representations about Tomasa Briones’ health. The appellant, American National, subsequently issued a life insurance policy for $500.00 on August 30* 1971. The first paragraph of this policy provides as follows:

“AMERICAN NATIONAL INSURANCE COMPANY agrees, subject to the conditions contained in this Policy, to insure you, the Insured, for the amounts shown in the Policy Data Schedule if premiums are paid as required by this Policy. This Policy becomes effective on the Policy Issue Date if you, the Insured, are then alive and in good health.”

The policy then provided in the fourth paragraph:

“. . . The terms of this Policy can be waived or changed only by an endorsement signed by the President, a Vice-President, or a Secretary of the Company.”

Tomasa Briones died on October 27, 1971.

Two further stipulations in the record which are relevant to the argument herein provide:

“(8) At the time the above described application was executed, the following persons were present: Thomasa M. Briones, Plaintiff, Julian M. Briones, and Mr. Garcia, a soliciting agent for American National Insurance Company.
* * * * * *
(13) The sum of Two Hundred ($200.00) Dollars is a reasonable attorney’s fee for the legal services provided to the Plaintiff in this suit.”

Appellant brings three points of error which generally complain that the trial court erred because Mr. Garcia was stipulated to be a soliciting agent of appellant and thus could not have waived the provisions of the insurance policy dealing with good health, citing, for example, Bennett v. National Life & Accident Insurance Co., 438 S.W.2d 438 (Tex.Civ.App.—Dallas 1969, writ dism’d), and that the trial court’s granting a $250.00 attorney’s fee was contrary to the stipulation of the parties.

The record on appeal consists solely of the transcript. There is before this Court neither a statement of facts prepared in accordance with Rule 377, T.R.C.P. nor an agreed statement prepared in accordance with Rule 378, T.R.C.P. Findings of fact and conclusions of law were not filed. The transcript does include a set of stipulations by the parties at the time of trial styled “Statement of Agreed Facts.”

The first paragraph of these stipulations state:

“To the Honorable Judge of Said Court:
The parties to the above entitled and numbered cause agree that the following is the statement of the case and of the facts proven, upon which judgment shall be entered therein, the controversy therein being submitted to the Court upon the same as such agreed statement of facts, without further record or need therefor:”

The stipulations then set out the circumstances, as explained earlier, under which the contested life insurance policy was issued. Although the language in the first paragraph refers to an “agreed statement of the facts” we cannot treat these stipulations as an agreed case under Rule 263, T.R.C.P. This rule provides:

“Parties may submit matters in controversy to the court upon an agreed statement of facts filed with the clerk, upon which judgment shall be rendered as in other cases; and such agreed statement signed and certified by the court to be correct and the judgment rendered thereon shall constitute the record of the cause.”

The stipulations herein were not certified by the court as correct; in fact, there was no certificate provided at the end of the stipulations for the judge to sign. See Perry v. Aetna Life Insurance Company of Conn., 380 S.W.2d 868, 875 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.). The purpose of requiring the court to certify the agreed statement of facts is to show the appellate court all of the facts upon which the judgment was rendered. See State v. Connor, 86 Tex. 133, 23 S.W. 1103 (1893). While the rule requires that the agreed statement should be signed and certified by the court, it has been held, however, that such is not necessary where it appears from the record that the case was tried upon such stipulation. Perry v. Aetna Life Insurance Company of Conn., supra at page 876, 3 Tex. Jur.2d Rev., Agreed Case § 9 (1974).

About the record, the judgment of the trial court recites in pertinent part as follows:

“. . . both parties proceeded to announce ready; the Court thereafter, proceeded to hear the stipulation of facts as tendered by the parties, as well as other evidence; . . .
After having considered the pleadings, the evidence, arguments of Counsel, and the Briefs requested of each Counsel, the Court is of the opinion that the evidence supports Plaintiff’s Petition beyond a preponderance of the evidence, and hereby grants Judgment to Plaintiff; . (Emphasis supplied.)

The judgment of the trial court, therefore, specifically negates any inference that the stipulations herein were all the evidence considered by the court. In Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 714-715 (1945), the Supreme Court considered the recitals in the court’s judgment when looking to the record to see whether certain stipulated facts were the only facts considered by the trial court. In this same connection, the court in Doctors Hosp. of Texarkana, Inc. v. Republic Nat. Bk., 498 S.W.2d 466 (Tex.Civ.App.—Texarkana 1973, writ ref’d n. r. e.), considered the recital of the trial court’s judgment which stated, “A jury was waived and the case was submitted upon stipulated facts, depositions on file with the court, and pleadings of the parties.” at page 467. The court then later stated at page 468, “[T]he judgment recitals show this is not an agreed case governed by T.R.Civ.P. Rule 263.”

The following factors also indicate that this was not an agreed case: the instrument nowhere referred to Rule 263, T.R. C.P.; the appellant requested findings of fact and conclusions of law; and the instrument does not place an ultimate fact essential to determination of the case beyond need for adjudication or explanation; i. e., whether Garcia was acting only as a soliciting agent, as that term is defined in Tex. Ins.Code Ann. art. 21.04 (1963), and in no other capacity at all times material to this case. See Perry v. Aetna Life Insurance Company of Conn., supra, at 875.

In light of the above mentioned factors, the absence of the court’s certification on the stipulations and the recitals in the judgment, we hold that the instant case is not an agreed case pursuant to Rule 263, T.R.C.P. Thus, without a complete record on appeal, and findings of fact by the court we must presume that the trial court found every fact in issue necessary to sustain its judgment and that there was evidence to support the judgment of the trial court. White v. Corpus Christi Little Miss. Kick. Ass'n, 526 S.W.2d 766 (Tex.Civ.App.—Corpus Christi 1975, no writ); City of Corpus Christi v. Gilley, 458 S.W.2d 124 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.). For example, we may assume that the evidence showed that appellant had, by its conduct, clothed Mr. Garcia with apparent authority to make his representations waiving certain requirements of the policy. See Brackett v. Universal Life Insurance Company, 488 S.W.2d 584 (Tex.Civ.App.—Beaumont 1972, no writ). “An agent, who is clothed with apparent authority, may make a binding contract although his authority is actually so limited as not to authorize the making of such contract.” Employers Casualty Company v. Winslow, 356 S.W.2d 160, 168 (Tex.Civ.App.—El Paso 1962, writ ref’d n. r. e.). In addition, the parties could have modified or rescinded certain portions of their stipulations at trial such that the particular stipulations appellant relies upon were not considered by the court. New v. First National Bank of Midland, 476 S.W.2d 121, 124 (Tex.Civ.App.—El Paso 1971, writ ref’d n. r. e.).

About attorney’s fees, the parties could have changed the stipulations, or the court could have awarded a greater amount in light of all of the facts presented at trial. See Southwestern Investment Company v. Hockley Cty. Seed & Delint., Inc., 511 S.W.2d 724, 735 (Tex.Civ.App.—Amarillo) writ ref’d n. r. e., 516 S.W.2d 136 (Tex.Sup.1974).

It was appellant’s burden to bring before the appellate court a record which requires a reversal. Appellant did not. Because all of the appellant’s points assert that either the stipulations are legally or factually insufficient to support the judgment or that the stipulations refute vital finding, appellant’s points cannot be sustained. Englander v. Kennedy, 428 S.W.2d 806 (Tex.Sup.1968). All of appellant’s points of error have been considered and are overruled.

The judgment of the trial court is affirmed.


author: BISSETT, Justice.

text:
    Elizabeth G. KRISHNAN, M.D., Appellant, v. Humberto GARZA et ux., et al., Appellees.
    No. 1296.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.

      Jack K. Dahlberg, Jr., Law Offices of Guy Allison, Corpus Christi, for appellant.
    A. A. Munoz, II, Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, Larry Watts, Houston, for appellees.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment whereby the plaintiff Esmerlinda Garza recovered damages as a result of injuries sustained when the surgeon, who performed a Caesarean operation on her, left a sponge inside her body. Suit was filed by Humberto Garza and wife, Esmerlinda Garza, against Dr. Elizabeth G. Krishnan and the Knapp Memorial Methodist Hospital, both of Weslaco, Texas. Following a jury trial, a joint and several judgment was rendered for the plaintiffs in the amount of $36,000.00, which judgment also denied each defendant’s claims for indemnity against the other, but did provide for contribution “to the extent that any defendant paying more than 50% of the judgment is entitled to contribution from the other co-defendant to that extent”. Only Dr. Krishnan has appealed from the judgment.

Concerning the issues on breach of duty, negligence and proximate cause, the jury found that Dr. Krishnan failed to fulfill the duty of reasonable care she owed to Mrs. Garza by leaving a lap sponge inside her body after closing the operational incision on June 1, 1974 (Special Issue No. 4), which was negligence and a proximate cause of the injuries suffered by Mrs. Garza (Special Issues 5 and 6); and that the failure of the Hospital’s nurse to deliver the x-ray of Mrs. Garza made on June 1, 1974 to the Hospital’s radiologist for his interpretation on June 3, 1974 was negligence (Special Issue 10), which was a proximate cause of Mrs. Garza’s injuries (Special Issue 11). The jury further found that Dr. Krishnan’s acts or omissions caused 35% of Mrs. Garza’s damages, and the Hospital’s acts or omissions caused 65% of such damages. A total of $36,000.00 was awarded by the jury as damages, $32,000.00 of which was for past and future physical pain and suffering and the remaining $4,000.00 was for past medical expenses.

Dr. Krishnan complains that the trial court erred in rendering judgment against her because there is no evidence to support the jury’s answer to Special Issues 4, 5 and 6, and in the alternative, that the answers to such issues are so against the great weight and preponderance of the evidence as to be manifestly unjust. She further contends that the trial court erred in 1) failing to grant her motion for judgment non obstante veredicto; 2) in denying her motion for indemnity against the Hospital; and 3) in rendering a joint and several judgment because the damages should have been apportioned in the percentage found by the jury in answer to Special Issue 12. Finally, she asserts that the trial court erred in rendering judgment against her for the $4,000.00 medical expenses because 1) the jury found “no negligence as against appellant for leaving the lap sponge in and consequently appellant is not liable as a matter of law for medical expenses to retrieve the sponge”, and 2) “those damages represented by the medical expenses were incurred due to an abscess which occurred because of the delay of appellee (Hospital) in reading the x-rays and appellant is not liable as a matter of law for those damages”.

We first consider the evidentiary points. In disposing of the “no evidence” points, we view the evidence in its most favorable light in support of the jury’s findings, and consider only the evidence which supports those findings and reject all evidence and permissible inferences contrary thereto. Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup.1974); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914). In disposing of the “great weight and preponderance of the evidence [points]”, we review, weigh and consider all of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Plaintiff Esmerlinda Garza was a patient of Dr. Armando Cuellar. She was admitted to the defendant hospital on May 31, 1974, preparatory to delivery of a child. Dr. Cu-ellar consulted with Dr. Krishnan, and after, consultation and examination, it was decided that a Caesarean operation was necessary. It was agreed that Dr. Krishnan would perform the operation, and that she would be attended by Dr. Cuellar. The operation was performed on Saturday morning, June 1, 1974.

In the operating room, there is a “scrub” nurse and a “circulating” nurse, both of whom are employees of the Hospital. They are responsible for opening the packages of sponges and counting them before the operation and immediately afterward. After the operation, the surgeon is then notified by one of them whether or not the sponge count is correct. The sponge in question in this case is known as a “la'p sponge” and contains a marker in one corner which will show up on an x-ray.

In the particular surgical procedure performed on Mrs. Garza, the sponge count was given by the Hospital’s nurse as being correct prior to “coming out”, that is, while the incision is still open and prior to being sewn up. The duty to count the sponges is on the nurses assisting the surgeon. Dr. Krishnan did not run her hand down the left or the right “gutter” to make sure that all the sponges were out.

After the incision had been closed surgically, Dr. Krishnan was advised that one sponge might be missing. She then stopped all procedures in order to verify the sponge count, or to determine the whereabouts of the missing sponge. She requested x-rays. The Hospital’s x-ray technician brought a portable x-ray machine to the operating room and took two views, an anterior-posterior view, and a lateral view. The anterior-posterior view did not come out since the x-ray machine misfired. Only the lateral view was readable.

An anterior-posterior view x-ray is more likely to show the lap sponge marker than a lateral view x-ray. Dr. Roeder, the Hospital’s radiologist, testified that under the circumstances it would have been good procedure to have taken another x-ray in order to obtain a good anterior-posterior view. Dr. Krishnan read the lateral view x-ray as not showing that the sponge was inside Mrs. Garza. It was usual to have the surgeon read his or her own x-rays which were made on weekends since the radiologist was away from the Hospital at those times. The lateral view x-ray contained a mark which Dr. Krishnan read as coming from one of the dressings outside the surgical wound. Dr. Roeder agreed that such was a possibility, but further stated that another anterior-posterior view x-ray should have been made, and that it was bad procedure not to have done so. Dr. Roeder was on twenty-four hour call on weekends, and doctors usually do call him if they feel that they need his interpretation of x-rays. Dr. Roeder lives only five minutes away from the Hospital, and was at home while this particular Caesarean section was being performed.

It was the policy of the Hospital to mark, log and identify all x-rays. Such was not done in this instance. On the weekends, the x-rays which were taken but which were not then read by Dr. Roeder would be placed on his desk, to be reviewed by him the first thing Monday morning. That was not done in this case. The lateral x-ray was found in the discard bin about ten days after it was taken. No explanation was given as to how it got there. Dr. Krishnan did not hear from Dr. Roeder on the following Monday morning, nor did she ask that Dr. Roeder read the lateral x-ray on that Monday.

Mrs. Garza was released from the Hospital on June 7, 1974. She later returned to the Hospital with various complaints which were treated as a urinary tract infection. When she did not respond favorably to the treatment, she was re-admitted by Dr. Krishnan. A new anterior-posterior x-ray was made, which clearly revealed the lap sponge in her abdomen. A second surgery was perform on June 10, 1974, and the lap sponge was removed. A third surgery was later performed to further clean and drain an abscess which localized at the place where the sponge had been.

Dr. Krishnan’s evidentiary points cannot be sustained. She was made aware in the operating room that a sponge might be missing. She investigated and observed something on the lateral view x-ray which she interpreted to be “marker” on a surface bandage. She then concluded that a sponge had not been left in Mrs. Garza’s body.

There was ample evidence that the procedure which Dr. Krishnan followed to determine whether a sponge had been left in Mrs. Garza’s body prior to closing was incomplete. She chose to forego taking another anterior-posterior x-ray to confirm her theory and in this instance, her theory was incorrect. There was competent testimony of probative value that it was poor procedure not to take another anterior-posterior x-ray under the circumstances. Had a readable anterior-posterior view x-ray been obtained on June 1, 1974, when the Caesarean operation was performed, as was done sometime between June 7, 1974 and June 10, 1974, unquestionably the “mark” which showed in the lateral view x-ray, which Dr. Krishnan read as “an outside dressing”, would have been clearly visible as a lap sponge marker inside of Mrs. Garza’s body. If Dr. Krishnan had insisted that x-rays be taken until a readable anteri- or-posterior view x-ray was obtained, instead of relying solely on the lateral view x-ray, the lap sponge would have been easily and readily detected as being inside of Mrs. Garza’s body, and it could have been removed before the abscess began to form and develop. We find ample evidence to support the jury’s answers to Special Issues 4, 5 and 6. Such answers are not against the great weight and preponderance of the evidence. Dr. Krishnan’s points 2, 3 and 4 are overruled.

We next consider Dr. Krishnan’s complaint that the trial court erred in denying her motion for indemnity. At common law, indemnity was allowed where the tort-feasors did not stand in pari delicto with each other. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). Our Supreme Court, in Strakos v. Gehring, 360 S.W.2d 787 (Tex.Sup.1962), in reviewing the development of the law in the fields of indemnity and contribution, discusses the three approaches used to establish a common-law right of indemnity. One involves different qualities of negligence; another involves a breach of duty as between tort-feasors; and the other gives indemnity to the tort-feasor who is only vicariously liable by operation of law. The instant case is not susceptible to any of these approaches. Dr. Krishnan is not vicariously liable by operation of law since her liability is determined by her own acts and omissions. Dr. Krish-nan’s negligence was not the sole cause of Mrs. Garza’s injuries. The Hospital and Dr. Krishnan were joint tort-feasors. Either one or both might have prevented the injuries sustained by Mrs. Garza; neither did; each owed the other the same due care, as well as the duty, to exercise ordinary care for the protection of Mrs. Garza’s well-being; both violated those duties; consequently each was guilty of the same quality of negligence, and since they stand in pari delicto with each other, they must, under Tex.Rev.Civ.Stat.Ann. art. 2212 (1971), share equally the burdens arising from their own negligent conduct which proximately caused the injuries sustained by Mrs. Garza. See Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563 (1949).

Dr. Krishnan is not entitled to indemnity, and contribution, as provided by art. 2212, becomes relevant. Dr. Krishnan’s point 1 is overruled.

Dr. Krishnan also contends in a point of error that it was error to render a joint and several judgment because of the jury’s answer to Special Issue 12, which issue and the answer thereto reads, as follows:

“If, in answer to the foregoing issues you have found that the acts or omissions of more than one person proximately caused the occurrence in question, then answer the following issue; otherwise, do not answer the following issue. From a preponderance of the evidence, what percentage of the damages, if any, to MRS. ESMERLINDA GARZA were caused by each of the following parties?
Answer in numbers from 0% to 100%: DR. ELIZABETH KRISHNAN 35% KNAPP MEMORIAL METHODIST HOSPITAL 65%”

The point has no merit. The issue submitted did not inquire as to comparative negligence of the joint tort-feasors, as provided by Tex.Rev.Civ.Stat.Ann. art. 2212a (Supp.1977). Instead, inquiry was made as to comparative damages. Dr. Krishnan did not request that an issue on comparative negligence between her and the Hospital be submitted to the jury. The trial court did not err in ordering contribution, as was ordered in the judgment, rather than apportioning the damages according to the percentages of damages found by the jury. Dr. Krishnan’s point 5 is overruled.

Dr. Krishnan further asserts that the trial court erred in rendering judgment against her for any portion of the $4,000.00, which was found by the jury to be the damages sustained because of past medical expenses. She says that she is not liable for those medical expenses as a matter of law since they were incurred in retrieving the sponge and because of the abscess which, according to her, “occurred because of the delay of appellee in reading the x-rays”. She also argues that such liability should not be imposed on her because the jury exonerated her from any failure to fulfill the duty of reasonable care which she owed Mrs. Garza by failing to discover the lap sponge inside Mrs. Garza’s body prior to the closing of the operational incision on June 1, 1974, and further refused to find that she failed to fulfill the duty of reasonable medical care she owed to Mrs. Garza by failing to drain the infected abscess on or about June 10, 1974. We do not agree.

As. already stated, Dr. Krishnan did not order that a readable anterior-posterior view x-ray be made, which, had that been done, would have shown that the sponge that “might” have been missing was actually inside Mrs. Garza’s abdomen. She also failed to make any effort to confirm her findings made by her analysis of the lateral x-ray by consulting with Dr. Roeder, the radiologist. In short, she did not recheck her procedure. Due to the unusual circumstances of the case, we think Dr. Krishnan had a continuing duty with respect to confirmation of her x-ray analysis. Her acts and omissions, combined with the Hospital’s failure to properly review the x-rays taken, constitute evidence of concerted action by her and the Hospital which proximately caused the incurrence of medical expense.

The jury exonerated Dr. Krishnan in “failing to discover the lap sponge inside Mrs. Esmerlinda Garza prior to the closing of the operational incision ”, not that she was exonerated because “the jury found no negligence as against appellant for leaving the lap sponge in ”, as stated by Dr. Krish-nan in her brief. The negligent conduct of both Dr. Krishnan and the Hospital proximately caused a single indivisible injury to Mrs. Garza. They were joint tort-feasors, and, therefore, jointly liable for all of the damages awarded Mrs. Garza. Dr. Krish-nan’s points 6 and 7 are overruled.

Based on the evidence, hereinbefore stated, it is our belief that the trial court properly overruled Dr. Krishnan’s motion for judgment non obstante veredicto. Dr. Krishnan’s point 8 is overruled.

The judgment of the trial court is AFFIRMED.


author: NYE, Chief Justice.

text:
    John Amos CONLEY, M. D., Appellant, v. BROWNSVILLE MEDICAL CENTER, Appellee.
    No. 1309.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.
    Rehearing Denied Sept. 14, 1978.
    Thomas G. Sharpe, Brownsville, for appellant.

      John William Black, Royston, Rayzor, Vickery, & Williams, Brownsville, for appel-lee.
   OPINION

NYE, Chief Justice.

This is an appeal by Dr. John Amos Conley from the dismissal of a temporary injunction.

Dr. Conley was a physician on the staff of the Brownsville Medical Center. He was summarily suspended by the executive committee of the medical staff of the hospital because of his conduct as a physician. Dr. Conley filed suit against the medical center contending that the termination of his rights to practice medicine in Brownsville would be materially damaged by the suspension; that the same was improper because he was not afforded an opportunity to present his defense to the charges leveled against him; and that irreparable harm and damages would be caused unless the medical center was enjoined. The doctor prayed that fundamental fairness requires that the court issue a temporary restraining order, and that a hearing be had enjoining the medical center from suspending him from practicing medicine at its hospital until specific charges were made in writing, and until his cause had a full hearing before the committee on the merits.

A temporary restraining order was then issued and a hearing was set for September 9, 1977, to show cause why a temporary injunction should not be granted. The September 9, 1977 hearing and the temporary restraining order were continued until September 19, 1977. o

Beginning on September 19, 1977, an extensive hearing was held which resulted in the trial court granting a temporary injunction in the following particulars on September 21, 1977:

“A.) John Amos Conley’s priveleges (sic) to practice medicine in Brownsville Medical Center are restored while this order is in force and effect.
B.) Brownsville Medical Center shall give John Amos Conley written notice of a hearing to be held before the Ad hoc Committee, and written notice of charges against John Amos Conley in plain and concise language, setting forth the acts or omissions with which John Amos Conley is charged, a list of specific or representative charts being questioned and/or other reasons or subject matter relevant to suspending or terminating his priveleges (sic) to practice medicine in Brownsville Medical Center.
C.) The meeting of the Ad hoc Committee shall be held a a time to give John Amos Conley adequate time to prepare to meet the charges levied against him, and a permanent record shall be made of said Ad hoc Committee meeting.
D.) This Order shall remain in force and effect until Brownsville Medical Center presents its show cause motion to dismiss the Injunction based on its compliance with this Order.”

Shortly thereafter on September 26,1977, the medical center filed a motion to dissolve the temporary injunction stating that Dr. Conley had subsequently mistreated an expectant mother in such a way that it resulted in the emergency delivery by caesarean section of a brain-damaged infant. The motion to dissolve stated that Dr. Conley’s treatment of the patient was far below the accepted medical standards of the Brownsville Medical Center and of the Brownsville community so as to create an emergency which justified dissolution of the temporary injunction.

On October 3, 1977, the trial court heard the motion to dissolve the temporary injunction and denied the same. However, at the same time, the court entered a temporary restraining order against Dr. Conley enjoining him from admitting or treating patients at the Brownsville Medical Center until the matter could be heard on October 5, 1977. In the meantime, on October 4, 1977, Dr. Conley had the meeting with the Ad Hoc Committee of physicians at the Brownsville Medical Center at which time the charges leveled against Dr. Conley were presented.' The committee’s ultimate decision was to permanently suspend Dr. Conley’s medical privileges at the Brownsville Medical Center. As a result of this hearing, the Brownsville Medical Center then filed a subsequent motion to dissolve the temporary injunction contending that the committee had affirmed the executive committee’s decision to permanently suspend Dr. Conley’s privileges and prayed that the temporary injunction against the medical center be now dissolved or in the alternative, that a temporary injunction be entered restraining and enjoining Dr. Conley from admitting patients or treating patients at the medical center.

On October 5, 1977, the trial judge heard the Brownsville Medical Center’s motion to dissolve and after considering the motion and after hearing arguments of the attorneys, dissolved the temporary injunction issued on September 21, 1977. The doctor appeals from this dismissal contending in a single point of error that: “The trial court erred in dissolving the temporary injunction of September 21,1977 because there was no evidence offered to support the dissolution order and the motion filed did not constitute compliance with the court order of September 21, 1977.”

Although we do not, as a general rule, make extensive quotes from the record of a trial court, we believe that this is the exceptional case because the record itself absolutely refutes the appellant’s contentions and it shows dramatically how a careful trial judge protects his trial record. The trial judge began the hearing as follows:

“I think, gentlemen, that we have conferred in Chambers and I think I understand the present situation, but let me state it in the record and make certain that the record correctly reflects it and you gentlemen correct me if I am wrong.” (Emphasis supplied).

The judge then proceeded to enumerate in a chronological order what had taken place concerning the various orders issued and the dates on which the orders had been issued and the hearings had been held. The trial judge then said:

“It is my understanding that, without waiving any rights of appeal, the Plaintiff Conley does agree that th.e hearing has been held and, subject to the temporary injunction, the ad hoc committee has voted to remove the privileges from Dr. Conley and that we are now here this morning with the Brownsville Medical Center contending that the injunction of Judge Lewis of September 21 should now be dissolved because the Brownsville Medical Center has specifically complied with D of that order; that is, that the order would remain in force and effect until Brownsville Medical Center presents a show cause motion to dismiss it because it has complied with the hearing ordered in B and C and that the agreement of Dr. Conley is without prejudice to any appeal rights he may have within the Brownsville Medical Center’s corporate structure to the governing board or any intermediate board or committee. (Emphasis supplied).
Is this essentially correct, gentlemen?
MR. BLACK [attorney for the medical center]: Yes, sir.
MR. SHARPE [attorney for Dr. Conley]: Yes, it is, Your Honor.
THE COURT: Then at this point this morning you are both saying, since Judge Lewis’ injunction of September 21, there has been a meeting had and the hearing given that Judge Lewis ordered to comply with the bylaws of the Center, which meeting was had yesterday, and that the ad hoc committee has denied Dr. Conley permanently the privileges of the hospital, of course each time subject to the fact that they are not going to act in violation of Judge Lewis’ order until it is dissolved.
MR. BLACK [attorney for the medical center]: Yes, sir. Of course, our position is now the time is ripe to dissolve the order.
THE COURT: As I understand it, there is no serious contention from Dr. Conley that it is not the time to dissolve the order?
MR. SHARPE [attorney for Dr. Conley]: In view of the procedure set forth in Judge Lewis’ order, the procedure which has been followed substantively is in compliance with that order.
* * * * * *
THE COURT: Neither side cares to offer any evidence; you are both satisfied the record correctly reflects the situation?” (Emphasis supplied).

Neither attorney answered the court’s question.

“MR. BLACK [attorney for the medical center]: I have a proposed order.
THE COURT: The Court does find, based upon the record that is before us, that the Brownsville Medical Center has complied with the requirements of Judge Lewis’ order of September 21 and has given a hearing before the ad hoc committee to John Amos Conley and has afforded the process required by Judge Lewis’ order and that it has now suspended the privileges of John Amos Conley from admitting or treating patients at the Brownsville Medical Center. (Emphasis supplied).
Accordingly, the temporary injunction of September 21, 1977, will be and is hereby, in all things, dissolved and an order will be entered to that effect.
Any objection to the form of the order submitted by Mr. Black?
MR. SHARPE [attorney for Dr. Conley]: Not to the form of the order.
THE COURT: Then the form of order as submitted will be approved.
Now, then, gentlemen, this hearing was not set on Mr. Black’s motion but was set upon the fact that a TRO was expiring at 10:00 o’clock and we were to have a hearing on making the TRO a temporary injunction. Does the petitioner on that temporary injunction desire to go forward?
MR. BLACK [attorney for Brownsville Medical Center]: No, sir, I believe the Court’s action makes that moot.
THE COURT: So agreed?
MR. SHARPE [attorney for Dr. Conley]: Yes, Your Honor.
THE COURT: There will be no hearing on making the temporary restraining order into a temporary injunction and it will be allowed to die of its own volition.”

The court then adjourned.

There are three reasons this case must be affirmed. In the first place, the trial judge could not have been more clear in his recitation of what had taken place and what he intended to do. There was no objection by appellant’s attorney and no contention in court that the medical center had not complied with the court’s prior order. An attorney who fails to object or make complaint of what has taken place at the trial court level in such a case, waives such error, if any, on appeal.

Second, the attorney for Dr. Conley judicially admitted that the order had been complied with. We said in Mobil Oil Company v. Dodd, 515 S.W.2d 351 (Tex.Civ.App.—Corpus Christi 1974, no writ):

“A judicial admission consists of a formal statement, either by a party of his attorney, in the course of a judicial proceeding which removes an admitted fact from the field of controversy. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.—San Antonio 1951, writ ref’d). In effect, it is a substitute for evidence which takes the matter out of the domain of proof. It cannot be contradicted by the introduction of evidence contrary thereto. Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415 (1960); McCormick & Ray, Texas Law of Evidence, Vol. 2, § 1127; 39 Tex.Law Rev. 516. ‘A “judicial admission” is a waiver of proof’. Mahoney v. Mahoney, 103 S.W.2d 459 (Tex.Civ.App.—Amarillo 1937, writ ref’d). The doctrine should be applied with caution. United States Fidelity & Guaranty Co. v. Carr, supra.

Dr. Conley’s attorney agreed to each and every procedure of the dismissal as it took place at the October 5, 1977 hearing. The appellant cannot now complain.

There is still a third reason for overruling appellant’s point of error. It should be pointed out that a trial court has broad discretion in determining whether or not to issue temporary injunctions to preserve the rights of parties pending the outcome of the case. When this discretion of the trial court is exercised, its order should not be overturned on appeal unless the record discloses a clear abuse of that discretion. The same holds true where the trial court dismisses the temporary injunction previously entered. The appellant has not made any attempt in this appeal to show that the trial court abused its discretion when it dismissed the temporary injunction upon a finding that the medical center had fully complied with the order of September 21, 1977.

The judgment of the trial court is AFFIRMED.


author: MOORE, Justice.

text:
    KIMBELL, INC., Appellant, v. Willie ROBERSON, Appellee.
    No. 1181.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 31, 1978.

      Jack W. Flock, Mike Hatchell, Ramey, Flock, Hutchins, Jeff us, McClendon & Crawford, Tyler, for appellant.
    Jerry L. Calhoon, McDonald, Calhoon & Kolstad, Palestine, for appellee.
   MOORE, Justice.

This is an appeal from an order overruling a plea of privilege. Plaintiff Willie Roberson, a resident of Anderson County, Texas, brought suit to recover for personal injuries sustained when he slipped and fell on a food substance on the floor of Buddies Supermarket in Palestine, Texas. Defendant Kimbell, Inc., the owner of the store, filed a plea of privilege to be sued in Tar-rant County, the county of its domicile. In reply, plaintiff filed a controverting affidavit alleging that the suit was lawfully maintainable in Anderson County, Texas, under sec. 9a, the “negligence” exception of the Texas Venue Statute, art. 1995, Tex. Rev.Civ.Stat.Ann. After a hearing before the court sitting without a jury, the trial court overruled the plea of privilege and defendant, Kimbell, Inc., duly perfected this appeal.

We reverse and render.

The evidence shows that the plaintiff entered the store in question in the late afternoon of December 19, 1975, for the purpose of purchasing groceries. Traffic in the store was described as being light. Plaintiff testified that about 10 or 15 minutes after he had entered the store and while pushing a grocery cart down one of the aisles, he stepped on a foreign substance on the floor causing his feet to slip from under him and as a result he fell backward and struck the floor, causing him to suffer personal injuries. He conceded that he did not know what the substance was that caused him to fall, but that it appeared to him that it was syrup. He testified that he immediately left the scene and notified the store manager who, after observing the substance, said it looked to him like jelly. Plaintiff further testified that after he fell, he observed two or three other sets of grocery cart tracks which had passed over the substance. Defendant did not offer any testimony at the hearing.

On appeal, defendant contends that the trial court erred in overruling its plea of privilege because plaintiff failed to prove by a preponderance of the evidence the necessary venue facts to sustain venue under the “negligence” exception to the venue statute.

Sec. 9a of art. 1995, supra, provides that “[a] suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile.”

It is the general rule in Texas that a defendant is entitled to be sued in his own county unless it clearly appears that one of the exceptions set forth in art. 1995, supra, will apply. Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, 972 (1951). To sustain venue in a given case it is the plaintiff’s burden to allege and prove the venue facts appropriate to the character of the suit alleged. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, 71 (1945); Burrows v. Texas Kenworth Co., 554 S.W.2d 300 (Tex.Civ.App.—Tyler 1977, dism’d).

To sustain venue under Exception 9a, the plaintiff must establish the essential elements of a cause of action in negligence by a preponderance of the evidence. 1 McDonald, Texas Civil Practice, sec. 4.17.2, pp. 475-76. In cases of this type, sometimes referred to as “slip and fall” cases, the plaintiff must prove in order to establish liability for negligence that: (1) the defendant placed the substance on the floor; or (2) the defendant knew the substance was on the floor and willfully or negligently failed to remove it, or (3) the substance had been on the floor for such a period of time that, in the exercise of ordinary care, it should have been discovered and removed. 40 Tex. Jur.2d, Rev., Part 2, Negligence sec. 59, p. 246; H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501 (Tex.Civ.App.—San Antonio 1949, err. ref’d); Great Atlantic & Pacific Tea Co. v. Giles, 354 S.W.2d 410 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.).

Plaintiff makes no contention that the agents, servants or employees of the defendant either put the substance on the floor or knew that it was there prior to the time he fell. Plaintiff undertakes to sustain the judgment on the theory that the evidence is sufficient to show that the substance had been on the floor for such a period of time that, in the exercise of ordinary care, it should have been discovered and removed. In this regard plaintiff relies on the following testimony given by him on cross-examination.

“Q. You don’t know how long it had been on the floor, do you, yourself?
“A. Well no, I don’t know exactly how long it had been there. It had been—
“Q. Well now, no . that’s not responsive.
“Q. From your own personal knowledge, do you know how long this stuff had been on the floor?
“A. I will say anywhere from 30 to 40 minutes .
“Q. You had only been in the store 10 or 15 minutes?
“A. Well, I know it.”

The record reveals that the plaintiff testified unequivocally on several occasions that he had only been in the store 10 or 15 minutes before the accident occurred and that he did not see the substance on the floor until after he had fallen. He gave no testimony of any facts which would tend to support his conclusion that the substance had been on the floor 30 or 40 minutes. At one point in his testimony, he frankly admitted that he did not know how long the substance had been on the floor. His opinion as to the length of time that it had been there amounts to nothing more than conjecture and therefore does not amount to any evidence at all. It is well settled that the naked and unsupported opinion or bare conclusion of a witness does not constitute evidence of probative force and will not support a finding based thereon even when admitted without objection. Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97 (1939); Dallas Railway & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956). As we view the record, plaintiff’s testimony, even when considered in the most favorable light, fails to establish that the substance on the floor had been there for such a period of time that, in the exercise of ordinary care, it should have been discovered and removed. Such testimony does nothing more than raise a suspicion or surmise and is therefore insufficient to raise an issue of fact as to whether the defendant was guilty of negligence in failing to discover and remove the substance.

Plaintiff argues that his testimony showing that 2 or 3 other grocery carts had made tracks through the substance constitutes some evidence tending to show the substance had been on the floor for a length of time sufficient to give defendant constructive notice and demonstrates that it had been there for a sufficient length of time to have been discovered and removed by the exercise of ordinary care. We do not agree. It is just as likely that the tracks were made by customers traversing the aisle only minutes or even seconds before plaintiff’s fall. We fail to see how the mere presence of grocery cart tracks, standing alone, would constitute competent evidence tending to show the length of time a food item has been on the floor. See Kimbell, Inc. v. Blount, 562 S.W.2d 10 (Tex.Civ.App.—Austin 1978, no writ history); Furr’s Supermarkets, Inc. v. Arellano, 492 S.W.2d 727 (Tex.Civ.App.—El Paso 1973, writ ref’d n. r. e.).

Finally plaintiff theorizes that the substance originally dropped on the floor was jelly, but had turned to syrup by the time he slipped and fell. Based on this premise he argues that there is sufficient circumstantial evidence to show that the substance had been on the floor an unreasonable length of time. This jelly-to-syrup theory is apparently derived from plaintiff’s testimony in which he stated that the substance looked like syrup, but that the store manager stated it looked more like jelly. We find no proof in the record that where jelly is dropped on a floor it turns to syrup. Even if such fact had been established we find no evidence showing how long it takes for such transformation to take place. In the absence of such proof neither the trial court nor this court would be authorized to assume such facts and render judgment based thereon.

We have carefully examined and analyzed the testimony in this record and find that we are unable to agree with plaintiff’s contention that the evidence is sufficient to support the trial court’s implied finding of negligence. There is no evidence whatsoever as when or how the substance got on the floor, and there is no evidence of probative force that it had been there for a sufficient length of time to give the defendant’s agents, servants or employees constructive notice of its presence. Absent proof that defendant either put the substance on the floor or knew it was on the floor and failed to remove it, or that the substance was on the floor for such a length of time that a person of ordinary prudence would have discovered and removed it, plaintiff failed to establish negligence on the part of defendant. J. Weingarten, Inc. v. Tyra, 381 S.W.2d 215 (Tex.Civ.App.—Tyler 1964, no writ history). It follows that venue cannot be maintained in Anderson County under Sec. 9a of the venue statute.

Accordingly, the judgment of the trial court is reversed and the cause is ordered transferred to the district court of Tarrant County.


author: McDONALD, Chief Justice.

text:
    John Thomas HUNTER, Appellant, v. F. D. ANDREWS, Appellee.
    No. 5927.
    Court of Civil Appeals of Texas, Waco.
    Sept. 7, 1978.

      Robert A. Sparks, Cleburne, for appellant.
    Charles D. Lummus, Bradley & Lummus, Cleburne, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Hunter from judgment against him for $3,300. balance due on contract for a swimming pool. (Plus $581.45 which defendant does not dispute).

Plaintiff Andrews sued defendant Hunter alleging plaintiff and defendant contracted in writing for plaintiff to build defendant a swimming pool on defendant’s property for $8,000.; that defendant paid $4,300. upon signing the contract; that plaintiff completed the pool but defendant refused to pay $3,700. balance due. (Plaintiff further sued for $581.45 for concrete defendant ordered from plaintiff’s supplier in plaintiff’s name, to build a patio and garage floor, and which plaintiff paid for and defendant refuses to reimburse).

Trial was to the court without a jury which rendered judgment for plaintiff for $3,300. ($3,700. due less $400. which the trial court deducted to repair minor defects in the job); plus the $581.45 (which defendant does not appeal from).

The trial court filed Findings and Conclusions summarized as follows:

Findings of Fact
1) Plaintiff Andrews and defendant Hunter contracted for plaintiff to build defendant a swimming pool for a cash price of $8,000.
2) Plaintiff substantially complied with the contract and completed the swimming pool.
3) Defendant failed to pay plaintiff $3,700. owed plaintiff pursuant to the contract.
4) There were certain minor defects in workmanship and material for which the court allowed defendant an offset of $400.
5) Defendant used concrete from plaintiff’s supplier to improve his premises for which plaintiff paid the supplier $581.45 and which plaintiff is entitled to.
Conclusions of Law
1) Plaintiff is entitled to judgment for balance of the contract price of $3,700. less offset of $400. for minor defects in workmanship and material.
2) Plaintiff is entitled to $581.45 for concrete used to improve defendant’s premises which was paid for by plaintiff.
Defendant appeals on 9 points.
Points 1 through 4 assert the trial court erred in finding that plaintiff substantially complied with the contract and completed the swimming pool, as there is no evidence and/or insufficient evidence to support such findings.
Points 5 and 6 assert the trial court erred in finding that certain minor defects existed as there is no evidence and/or insufficient evidence to support a finding that the defects were minor.
Points 7 through 9 assert the trial court erred: in failing to recuse himself; in conducting the trial on different dates; and in overruling defendant’s motion to consolidate.

Plaintiff contracted in writing with defendant to construct a swimming pool on defendant’s property for $8,000. ($4,300. on signing of the contract; $2,000. on delivery of the pool kit to the job site; and $1,700. upon connection of the filter). Defendant paid plaintiff $4,300. and construction started. Construction was completed in late July 1976, and plaintiff requested the balance due on the contract. Defendant could not get a loan because a mechanic’s lien had not been taken prior to commencing the work. Defendant commenced to use the pool. Defendant then furnished plaintiff a list of asserted defects concerning the pool stating he would not pay the balance owed on the pool. Plaintiff wrote defendant if the balance of the contract price ($3,700.) plus cost of the concrete ($581.45), were placed in escrow he would correct or repair any defects in the pool. Defendant did not to do this and plaintiff filed suit.

There is evidence plaintiff completed construction of the pool in good and workmanlike manner except for minor defects in workmanship and material. There is also evidence that the defects were major and that the pool had no value. There is evidence that defendant refused to pay because of the defects; and there is evidence from which the court could believe he refused to pay because he could not obtain a loan.

The court heard and weighed the evidence; and observed and passed on the credibility of the witnesses. We think the evidence ample to support the court’s findings that plaintiff substantially complied with the contract, completed the swimming pool, that defects were minor; and that such findings are not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

The law concerning the right of a building contractor to recover for work done and performed under a building contract is stated by our Supreme Court in Graves v. Allert & Fuess, 104 Tex. 614, 142 S.W. 869, and is: In the case of Building and Construction Contracts, strict and literal performance is not essential to enable the contractor to recover on the contract; if he has substantially performed, he may recover the contract price less the reasonable cost of remedying the trivial defects and omissions so as to make the structure comply with the contract. To the same effect are Hennemuth v. Weatherford (Waco, Tex.Civ.App.) NRE, 278 S.W.2d 271; Atkinson v. Jackson Bros., Tex.Com.App., 270 S.W. 848; Garland Grain Co. v. Bailey, (Dallas, Tex.Civ.App.) NRE, 393 S.W.2d 945; Treiber v. Schaefer, (San Antonio, Tex.Civ.App.) NWH, 416 S.W.2d 576; Graham Construction Co. v. Walker Process Equipment, Inc., (Corpus Christi, Tex.Civ.App.) NRE, 422 S.W.2d 478; Godde v. Wood, (Corpus Christi, Tex.Civ.App.) NRE, 509 S.W.2d 435.

The record reflects trial was held on March 8,1977 and on October 13,1977; that on September 1, 1977 defendant filed a suit against plaintiff and the manufacturer of the pool, and on October 11, 1977 filed motion to consolidate the 2 cases; that on October 11, 1977 defendant filed motion to transfer the case to another court alleging that “the court has made statements in the presence of [defendant] that would cause this defendant to believe that this court has already reached a determination in this matter prior to the time a final hearing is had * * *; that the gist of these statements is that [defendant] is attempting to avoid payment of a legitimate debt to [plaintiff] and that defendant is stalling in his just obligation”.

The trial court overruled the motions to consolidate and to transfer. Consolidation of causes are in the discretion of the trial court. Rule 174 TRCP. Defendant moved for consolidation with a case filed after this case was half tried. No absence of discretion is shown; and there is no showing the trial court prejudged the case.

All defendant’s points are overruled.

AFFIRMED.


author: ROBINSON, Chief Justice.

text:
    Keith D. LEMONS, Appellant, v. STATE of Texas, Appellee.
    No. 8993.
    Court of Civil Appeals of Texas, Amarillo.
    Sept. 21, 1978.
    Rehearing Denied Sept. 21, 1978.

      Keith D. Lemons, Dimmitt, Ochsner & Baughman, Frank J. Baughman, Amarillo, for appellant.
    Jimmy F. Davis, Dimmitt, for appellee.
   ROBINSON, Chief Justice.

The trial court held that Keith D. Lemons, who was not a duly licensed attorney at the time of the filing deadline for the primary election, was not a qualified candidate for the office of County Attorney and enjoined the Democratic County Chairman and County Executive Committee from certifying his name as the party nominee. Lemons appeals. Affirmed.

This suit was brought by Jimmy F. Davis, County Attorney for Castro County, for the State of Texas, seeking a declaration that Keith D. Lemons was an ineligible candidate in the May 6, 1978, Democratic Primary and praying that Oscar Wylie, Castro County Democratic Chairman, and the Democratic Executive Committee be permanently enjoined from certifying the name of Lemons as the nominee of the Democratic Party for election to the office of County Attorney. An amended petition shows the suit to be brought by the County Attorney for the State of Texas on relation of James Welch, a resident and voter of Castro County.

The cause was heard on May 4,1978. At the time of the hearing, Lemons was the only candidate for the Democratic nomination for the office of County Attorney of Castro County. He testified that he had taken the Bar examination, but had not received the examination results and was not yet licensed to practice law. At the conclusion of the hearing the trial judge announced that he would grant a temporary injunction which would be made permanent unless Lemons could show at a hearing at 10 a. m. on Tuesday, May 9, 1978, that he had become a duly licensed attorney. May 9, 1978, was the date for canvass of the election return by the County Executive Committee under Tex.Elec. Code Ann. art. 13.24. No hearing was held on May 9,1978. It is undisputed that Lemons did not become a duly licensed attorney until May 15, 1978.

On May 18, 1978, the trial judge signed a judgment declaring that Lemons was ineligible under the provisions of Tex.Elec.Code Ann. art. 1.05 and Tex.Rev.Civ.Stat.Ann. art. 332 to be a candidate for Castro County Attorney in the May 6, 1978, primary election and permanently enjoining Wylie and the Castro County Democratic Executive Committee from certifying the name of Keith D. Lemons as the party nominee. Lemons appeals contending, among other things, that he has met the statutory requirements by becoming eligible to hold the office before the commencement of the term sought.

Tex.Rev.Civ.Stat.Ann. art. 332 provides that “no person who is not a duly licensed attorney at law shall be eligible to the office of district or county attorney.”

Tex.Elec.Code Ann. art. 1.05, subdivision 1 provides that no person shall be eligible to be a candidate for any public office in this state unless he is eligible to hold such office under the Constitution and laws of this state. Subdivision 4 provides that “no ineligible candidate shall ever be voted upon nor have votes counted for him at any such primary, general or special election for the purpose of nominating or electing him, but votes cast for an ineligible candidate shall be taken into account in determining whether any other candidate received the necessary vote for nomination or election.”

It is undisputed that Lemons was not eligible to hold the office of County Attorney at the time of the filing deadline, the time of the primary election, or the time for the canvassing of the election returns. Further, he was unable to show at those times that he would be eligible to hold the office at the commencement of the term sought. In contending that he was, nevertheless, an eligible candidate, Lemons cites Rose v. White, 536 S.W.2d 395 (Tex.Civ.App.—Dallas 1976, no writ) and Kothmann v. Daniels, 397 S.W.2d 940 (Tex.Civ.App.—San Antonio 1965, no writ).

In our opinion, neither Rose nor Koth-mann controls the ease before us. Each case dealt with the construction of constitutional provisions relating to eligibility to public office. In both cases the disqualification urged would cease to exist before the time for the assumption of duties for the office sought by the mere passage of time and regardless of the actions of the candidate or any other person. The court in Kothmann commented on the type of disqualification before it, stating:

Here, whether Kothmann desires it or not, the disqualification imposed on him by the constitutional provision in question will necessarily end before the commencement of the term of the office he seeks. We need not fear the creation of a situation where the voters, at the time they cast their ballots, will not know whether they will be successful in filling the office of district clerk or not. The effectiveness of the election will not depend on any future action of Kothmann, should he be the successful candidate.

We conclude that under Election Code art. 1.05 Lemons was not eligible to be a candidate in the May 6, 1978, primary election because he was not able to show by the filing deadline that he would be eligible to hold the office sought at the commencement of its term.

Lemons next contends that the trial court erred in not having a hearing before signing the judgment granting a permanent injunction on May 18, 1978, and in overruling defendant’s motion for new trial without a hearing because there was “newly discovered evidence” that Lemons had become a duly licensed attorney on May 15, 1978. Any error in failing to hear such evidence could not have resulted in the rendition of an improper judgment in view of our holding that Lemons was required to show that he would be able to qualify to hold the office which he sought before the filing deadline. Accordingly, those points of error are overruled. Tex.R.Civ.P. 434.

Res Judicata

Lemons also contends that the State is barred from claiming that he is an ineligible candidate on principles of res judicata and collateral estoppel. Lemons relies on an earlier suit and judgment related to the same primary election. Both Lemons and Jimmy P. Davis had filed an application to have their names placed on the ballot as candidates for nomination for the office of County Attorney. At the time Davis was the County Attorney of Castro County. Lemons successfully sued to enjoin the County Chairman from certifying Davis as a candidate in the primary election. Davis intervened as a defendant in his own behalf, but declined to prosecute a suit to keep himself off the ballot. The trial judge joined Davis as an involuntary plaintiff, but-found that it had no authority to order him to file suit in the matter. In that case Davis was found to be ineligible to be a candidate because he had not been a resident of Castro County six months before the filing deadline. The parties, pleadings and facts of that case are set out in the opinion of this court in Lemons v. Wylie (v. Davis), 563 S.W.2d 882 (Tex.Civ.App.—Amarillo 1978, writ dism’d w. o. j.). This court held that Lemons, as a candidate, had an interest in not being opposed by an ineligible candidate, separate and apart from that of the general public, and that, as a candidate, he could maintain the suit to enjoin the placing of an ineligible candidate on the ballot. Lemons contends that his own ineligibility could have been pleaded and proved as a defense to his right to maintain the action to enjoin the certification of Davis and that the judgment in that cause is res judicata of the issue.

The doctrine of res judicata applies only when the following elements exist: identity of parties, issues, subject matter, relief sought and cause of action. Oak Lawn Preservation Society v. Board of Managers of Dallas County Hospital District, 539 S.W.2d 167, 169 (Tex.Civ.App.—Dallas 1976, no writ). A party cannot relit-igate matters which he might have interposed, but failed to interpose, in an action between the same parties or their privies in reference to the same subject matter. Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.1971). The term “subject matter” refers to the claim or controversy at issue in the earlier suit and not to the transaction out of which it arose. As a general rule a judgment on the merits in one cause of action is not conclusive of a subsequent suit on a different cause of action except to issues of fact actually litigated and determined in the first suit. Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973).

The rule of collateral estoppel, or as sometimes phrased, estoppel by judgment, bars relitigation in a subsequent action upon a different cause of action of fact issues actually litigated and essential to a prior judgment. Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 362 (Tex.1971). The plea of collateral estoppel, unlike broader ones of merger and bar, does not apply to what might have been litigated and determined. Hardy v. Fleming, 553 S.W.2d 790 (Tex.Civ.App.—El Paso 1977, writ ref’d n. r. e.). Collateral estoppel requires the identity of parties and issues, while identity of subject matter and causes of action have been held not to be essential. 34 Tex.Jur.2d Judgments § 521 (1962).

Lemons’ suit to enjoin certification of Davis as a candidate in the Democratic primary election and the suit of the State of Texas, brought by Davis as County Attorney, to enjoin certification of Lemons as the party nominee are separate and distinct causes of action arising out of separate claims. The issue of Lemons’ eligibility as a candidate was not litigated in the earlier suit. We conclude that the doctrines of res judicata and collateral estoppel do not bar the cause of action before us.

Each of appellant Lemons’ points of error is overruled. The judgment of the trial court is affirmed.

On account of the emergency caused by the near approach of deadlines for the preparation of ballots for the general election, the parties will be denied the right to file a motion for rehearing. See Mills v. Bartlett, 375 S.W.2d 940 (Tex.Civ.App.—Tyler 1964), aff’d, 377 S.W. 2d 636 (Tex.1964).