author: REYNOLDS, Justice.

text:
    Billy KULMS and Everett Butler v. Marvin JENKINS.
    No. 8815.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 11, 1977.
    Appellants Rehearing Denied Nov. 7, 1977.
    Appellee’s Rehearing Denied Nov. 7, 1977.

      Gardere, Porter & DeHay, Douglas A. Harrison, Dallas, for appellants.
    Maner, Nelson, Jones & Reaud, Inc., Loyd N. Jones, Lubbock, for appellee.
   REYNOLDS, Justice.

Plaintiff Marvin Jenkins recovered a judgment for damages resulting from an intersection collision between his vehicle and one operated by defendant Billy Kulms and owned by his employer, defendant Everett Butler. Without challenging jury answers establishing that Kulms was, but Jenkins was not, guilty of negligence proximately causing the collision, Kulms and Butler seek to reverse the judgment. Their theories are that there is a lack of the prescribed evidential support for the issue of the scope of Kulms’ employment and for some elements of Jenkins’ damages, and that prejudicial evidence concerning a criminal complaint filed against Kulms was adduced before the jury. Eliminating the award for medical expenses not shown to have been necessarily incurred as a result of the collision, we find no reversible error attending the rendition of the judgment. Reformed and affirmed.

In response to the first special issue, the jury found that at the time of the collision Kulms was engaged in the service of Butler and in the furtherance of his business. Both the submission of and the answer to the issue are subjected to “no evidence” points of error, and the answer is also attacked by a factually insufficient evidence point. A statement properly positions the points.

Butler employed Kulms for general farm work. Kulms was paid a weekly wage without any deduction being made for work time lost due to adverse weather. Sometimes, so Butler said, he furnished Kulms a pickup truck to travel to and from work and in looking after Butler’s farm. Due to wet weather, Kulms had not done any work on the farm on either one day or two days prior to the collision. Early on the morning of and before the collision, Kulms drove Butler’s pickup, which Kulms said he had been driving for two years, from Kulms’ home to a cafe where he normally met Butler’s foreman to talk about work activities for the day. Although Kulms and the foreman had met at the cafe on the two preceding days, the foreman did not appear on the day of the collision. Kulms left the cafe, intending to drive to Butler’s fields to see if the land was dry enough to work. The intersection collision occurred before Kulms reached the fields.

There is recorded in Butler’s deposition, taken some nine and one-half months after the collision, the following:

Q Okay. Would it be your opinion that on the morning of the accident, that Mr. Kulms was in the course of his duties when this accident occurred?
A Yes.
Q And he was in the furtherance of your business affairs, whatever that was?
A Right.
Q He was taking care of your farm, whatever he was supposed to be doing, is that right?
A Right.

At the trial approximately twenty-eight months after the collision, Butler testified that Kulms had neither done any work for him on the morning of the accident nor, because it had rained, for two days before that time. Butler further said that at the time the accident occurred, Kulms was on his way to Butler’s headquarters to see if he was supposed to work that day.

It was Kulms’ trial testimony that he was working for Butler on the day of the accident. He further testified, however, that he was driving to work and had not done any work for Butler at the time of the collision.

For Butler to be liable for Kulms’ negligent acts, it must be satisfactorily shown that those acts were within the scope of Kulms’ general authority, in furtherance of Butler’s business, and for the accomplishment of the object for which Kulms was employed. Broaddus v. Long, 135 Tex. 353, 138 S.W.2d 1057, 1059 (1940). Kulms’ testimony that he was working for Butler on the day of the accident is a legal conclusion which has no probative value on the question of the course and scope of Kulms’ employment at the time of the collision, Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 361 (Tex.1971); however, the evidence that Butler employed Kulms and furnished for use in his employment the pickup truck involved in the collision gave rise to the .presumption that Kulms was acting within the course and scope of his employment when the collision occurred. Broaddus v. Long, supra, 138 S.W.2d at 1058. But, that presumption vanished when Kulms testified that he was driving to work and had not done any work for Butler at the time of the collision, Hudiburgh v. Palvic, 274 S.W.2d 94, 98 (Tex.Civ. App.—Beaumont 1954, writ ref’d n. r. e.), and the rebutted presumption could not be treated as evidence by the jury in reaching its verdict. Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 768 (1940). Consequently, if Butler was to be held liable, Jenkins had the burden of producing other evidence that Kulms was acting within the course and scope of his employment. Houston News Co. v. Shavers, 64 S.W.2d 384, 386 (Tex.Civ.App.—Waco 1933, writ ref’d).

Jenkins points to the circumstances of Kulms’ employment and particularly to Butler’s deposition testimony as other evidence tending to establish the course and scope of Kulms’ employment. Butler and Kulms respond that Butler’s deposition testimony is nothing more than a legal conclusion and opinion which is not competent evidence to support the jury’s affirmative finding. Cited to support the response are Robertson Tank Lines, Inc. v. Van Cleave, supra, and Kimbell Properties, Inc. v. McCoo, 545 S.W.2d 554 (Tex.Civ.App.—Amarillo 1976, no writ). These cases hold that an employee’s statement that he was “on the job” is without probative value to show the employee’s course and scope of employment, but they are not controlling on the probative value of an employer’s statements on the same subject.

Generally, the declarations of an agent are not admissible as primary evidence of the fact that he was acting within the scope of his employment, Webb-North Motor Co. v. Ross, 42 S.W.2d 1086, 1087 (Tex.Civ.App.—Austin 1931, writ dism’d), but the rule does not operate to bar a principal’s testimony, which is admissible, to prove the fact. Lightsey Black & White Cab Corporation v. Littlefield, 48 S.W.2d 766, 770 (Tex.Civ.App.—Fort Worth 1932, writ ref’d). The admissions of a party of record are always receivable against him, C. McCormick and R. Ray, Texas Law of Evidence § 1161, as evidence of the facts stated. Bennett v. Romos, 151 Tex. 511, 252 S.W.2d 442, 445 (1952).

Thus, Butler’s deposition testimony was admissible on the issue of Kulms’ course and scope of employment. Nevertheless, Butler’s deposition statements are only extra-judicial or quasi-judicial admissions which are not conclusive on him, Esteve Cotton Company v. Hancock, 539 S.W.2d 145, 157 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.), and, being inconsistent with his trial position, were subject to explanation or contradiction. Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651, 655 (1952).

There being some evidence of probative force that Kulms was in the scope of his employment at the time of the collision, the issue was for the jury, Anderson v. Moore, 448 S.W.2d 105 (Tex.1969); and, the evidence on the issue being conflicting, the determination of the fact was for the jury. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422, 425 (1952). In determining the ultimate fact, it was the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony, and to resolve the conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses. By its role, the jury was privileged to believe all or none of the testimony of any one witness or to accept it in part while rejecting it in another part. Esteve Cotton Company v. Hancock, supra, at 158. Moreover, the jury was entitled to draw reasonable inferences from the facts it found were proved. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952). After reviewing all the evidence, we cannot say, with due regard for the jury’s prerogatives, that the evidence in support of the finding that Kulms was engaged in the service of Butler and in the furtherance of his business is so weak, or that the contrary evidence is so overwhelming, that the finding should be set aside.

During the trial, the investigating officer testified that he signed and filed a complaint concerning Kulms’ failure to yield the right-of-way. No objection was then lodged. Thereupon, an exhibit, which was not identified before the jury, was marked for identification and an unreported hearing was held at the bench. The court then announced that the objection was sustained. The exhibit was withdrawn. Kulms and Butler moved for a mistrial “for the presentation of this and then withdrawing it and the questions asked this witness in regard to what he is now withdrawing.” The motion was overruled, but the court instructed the jury not to consider the tender and offer for any purpose whatsoever. It is asserted that the court erred in failing to grant the motion for mistrial.

It has been recognized that, in the trial of a tort action involving a vehicle accident, it is improper to show that a criminal charge, which applies a yardstick different from that used in determining civil fault, has been filed. Switzer v. Johnson, 432 S.W.2d 164, 167 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ). Yet, a reversal can be justified only when a review of the entire record convinces the reviewing court that the error was calculated to cause and probably did cause the jury to give the answer it did to all issues which will support the judgment. State v. Parrish, 159 Tex. 306, 320 S.W.2d 330, 332-33 (1958).

In this record is Kulms’ concession that he failed to yield the right-of-way. In addition to finding that this failure was a proximate cause of the accident, the jury further found that other acts of Kulms were negligence which proximately caused the accident. None of these findings has been attacked and, therefore, the imposition of liability is unaffected by the matter about which the complaint is made. Thus, under this record, we cannot say that the matter now asserted probably caused the rendition of an improper judgment.

A series of points stem from an issue allowing the jury to consider four elements of the total damage. The initial challenge is that the issue did not require the jury to make a separate finding on each element. The challenge is unavailing because one issue may include, as here, the closely related elements of a total damage, 3 McDonald, Texas Civil Practice § 12.23.3, and an answer by the jury to each element of damage is not required. T & L Lease Service, Inc. v. Biddle, 500 S.W.2d 186, 189 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ).

Next, it is asserted that there is no evidence to warrant the submission of the elements of Jenkins’ loss of earnings in the past and his loss of future earning capacity, and that the evidence is both legally and factually insufficient to support any finding thereon. In making this assertion, Kulms and Butler have not questioned the other two elements or the total amount of damages the jury awarded under this issue.

Within the record is evidence that Jenkins, aged 70, had worked steadily up to the time of the collision. Specific evidence of his earnings for the three and one-half years before the collision were placed in the record. Jenkins testified to the injuries he sustained in the collision, that they were disabling, and that his condition was not improving. Since the collision, Jenkins has not worked or earned any money working.

This evidence was legally sufficient for the submission of, and to enable the jury to fairly estimate, the elements of damages about which complaint is made. McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943). A consideration of all the evidence bearing on the two elements reveals its factual sufficiency to support an award therefor if included in the answer given by the jury.

The group of points last considered arise from the jury’s award of $1,721.25 for the necessary and reasonable medical expenses Jenkins incurred as a result of the collision. The submission of the issue and the answer are challenged by “no evidence” points, and the answer is said to be against the great weight and preponderance of the evidence.

Following the collision, Jenkins received medical treatment. The amounts charged Jenkins therefor were said to be reasonable. Jenkins was not entitled to recover the medical expenses for which he had obligated himself; instead, he was entitled to recover only those reasonable medical expenses which were necessarily incurred as a result of the collision. Texas & N. O. R. Co. v. Barham, 204 S.W.2d 205, 207-08 (Tex.Civ.App.—Waco 1947, no writ). A careful search of the record does not disclose any testimony nor any evidence of probative force showing that the treatment rendered was necessary as a result of the collision. Jenkins mentions the notations referring to the accident which appear in the admitted hospital records; but, without more, the notations are hearsay and must be excluded. Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298, 305 (Tex.1962).

The separate submission of this element of damage permits the rendition of the judgment the trial court should have rendered. McDaniel v. Castro County, 514 S.W.2d 488, 491 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.). Therefore, the judgment is reformed to eliminate therefrom the sum of $1,721.25.

As reformed, the judgment is affirmed.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Roger S. BRAUGH, d/b/a Braugh Ranches, Appellant, v. B. F. PHILLIPS, Jr., Appellee.
    No. 1189.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 13, 1977.
    Rehearing Denied Nov. 10, 1977.

      Bruce D. Viles (on appeal only), Wood, Burney, Nesbitt & Ryan, Corpus Christi, Glusing & Sharpe, Kingsville, for appellant.
    Robert Patterson, Keys, Russell, Seaman & Mansker, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This suit was brought by B. F. Phillips, Jr., for the return of stallion service fees paid under breeding contracts, dated September 20,1973, whereby two mares owned by Phillips were bred to a stallion owned by Roger S. Braugh, d/b/a Braugh Ranches.

Each of the breeding contracts, in paragraph 8, provided for refund of the stallion service fee if a live foal did not result from the mating. The refund was conditioned upon notification of Braugh by telegraph or certified mail within 48 hours of an abortion by the mare or the failure of the mare to produce a live foal. That paragraph further specified:

“. . . Such first notification must be followed within 14 days of said mare’s foaling or aborting by a certified veterinarian’s statement giving the particulars to substantiate the fact that a live foal failed to result from the mating. If such first notification and such veterinarian’s statement are not received by Stallion Owner within the prescribed times, Stallion Owner’s agreement to refund the stallion service fee shall become null and void.”

In the trial court Phillips contended in his pleadings that no live foals resulted from the matings; that all conditions precedent had been complied with by him; if not, that compliance had been waived by Braugh. Braugh contended that Phillips had not performed the conditions precedent and that consequently, under the terms of the two breeding contracts, he was under no obligation to return the service fees.

Trial was before a jury which answered in plaintiff Phillips’ favor six special issues involving elements of substantial performance, waiver and estoppel. The trial court entered judgment on the verdict that Phillips recover the $10,000.00 in service fees, interest and costs. Braugh appeals from that judgment. We affirm.

The issues, each of which was answered “yes”, are as follows:

“ISSUE NO. 1
Do you find from a preponderance of the evidence that the Plaintiff notified the Defendant that no live foal would be born as the result of the breeding of Truxton King and the mares Burning Match and Faquir Girl?
The term ‘notified’ as used in this issue means such notification to the Defendant as would enable the Defendant to make a determination of whether or not a live foal would result from the breeding of Truxton King and the mares Burning Match and Faquir Girl.
ISSUE NO. 2
Do you find from a preponderance of the evidence that the Defendant intended, by his letter of August 8, 1974, to require the Plaintiff to furnish only a veterinarian’s statement to the effect that the mares were not pregnant, and no other notice, before the Defendant would refund the stallion service fees?
ISSUE NO. 3
Do you find from a preponderance of the evidence that the Defendant, when he sent the Plaintiff his letter of August 8, 1974, did so with full knowledge that the Defendant could insist on the Plaintiff giving notice as stated in the breeding contracts?
ISSUE NO. 4
Do you find from a preponderance of the evidence that prior to the time the Plaintiff sent the Defendant his letter of August 15, 1974, with the attached veterinarian’s statement, the Defendant had, by his letter of August 8, 1974, led the Plaintiff reasonably to believe that the only further notice required before the Defendant would refund the stallion service fee would be to obtain a veterinarian’s certificate to the effect that the two mares were not pregnant?
ISSUE NO. 5
Do you find from a preponderance of the evidence that the Plaintiff relied on the conduct of the Defendant to the extent that in good faith he believed that no other notice would be required by the Defendant before the Defendant would refund the stallion service fee?
ISSUE NO. 6
Do you find from a preponderance of the evidence that the Plaintiff would have filed the notice contained in Paragraph Eight (8) of the breeding contracts but for his belief that the Defendant would require only the notice contained in his letter of August 8,1974, before refunding the stallion service fee?”

Appellant’s basic position on appeal is that the appellee failed to comply with the terms of the contracts which called for compliance with conditions precedent by notice of non-pregnancy and delivery of a veterinarian’s statement of particulars within specifically designated periods. Appellee counters by asserting that he is entitled to recover upon any of three theories submitted to the jury: substantial compliance (special issue 1); waiver (special issues 2 and 3); or estoppel (special issues 4, 5 and 6).

We will first resolve appellant’s attacks on the charge as set out in his points 2, 5 and 10.

Appellant’s point 2 challenges the submission of special issue 1 as immaterial. Appellant argues that the failure to specify the date on which notice was given made the jury’s answer to special issue 1 eviden-tiary and thus immaterial. Appellant has waived the right to assert the error complained of here. This is so because in his objections to the charge about special issue 1 he does not complain that it is immaterial. Rule 272, T.R.C.P. states that any objection not presented is waived.

We note also that if the failure to include the date was error it was harmless error in that the judgment was supported by other issues. Commercial Standard Insurance Company v. Ford, 400 S.W.2d 934 (Tex.Civ.App. — Amarillo 1968, writ ref’d n.r.e.); Rule 434, T.R.C.P. Appellant’s point 2 is overruled.

Appellant in his point 10 complains that special issue 5 is ambiguous and that it is not limited to any particular conduct of the defendant. Appellant suggests that a proper submission of this issue would have included reference to Braugh’s request that the mares be rechecked. Special issue 5 was submitted in the cluster with special issues 4 and 6 on the theory of estoppel. The purpose of special issue 5 was to establish good faith reliance by the plaintiff, an essential element for recovery by estoppel. See Graham v. San Antonio Machine and Supply Corporation, 418 S.W.2d 303 (Tex. Civ.App. — San Antonio 1967, writ ref’d n.r. e.).

Appellant has challenged issue 5 on the basis of notice or representation when submitted as estoppel. This question was answered by special issue 4 when the jury found that refund was conditioned only on a veterinarian’s certificate that the mares were not pregnant. Appellant, therefore, has raised error as to special issue 5 which is immaterial. The purpose of special issue 5 was to establish good faith reliance; therefore, the failure to clarify “no other notice” does not constitute error. The error asserted, if proper, should have been addressed to special issue 4. It was not. We therefore overrule appellant’s point 10.

In his point 5 appellant alleges error in failing to submit the following requested issue on waiver:

“Do you find from a preponderance of the evidence that Defendant intended, by his letter dated August 8,1974, to require Plaintiff in two weeks from August 8, 1974, to reeheck mares Burning Match and Faquir Girl and to send Defendant a veterinarian’s certificate to the effect that the mares were not in foal, before the Defendant would refund the stallion fee?”

It is clear that it is the trial court’s duty to submit controlling issues which are raised by the pleadings and evidence. In so doing, however, the trial court is given discretion and is not required to follow the exact language of the pleadings. Green v. Walgreen Drug Company of Texas, 368 S.W.2d 688 (Tex.Civ.App. — Beaumont 1963, writ dism’d); Rule 279, T.R.C.P. One of the crucial issues of this case raised by the pleadings and evidence is whether the appellant had intentionally waived his right to compliance by the appellee with the notice provision of the breeding contracts. This issue was sufficiently submitted in special issue 2. The requested issue was, therefore, merely a different shade of the submitted issue, and there can be no error in the refusal to submit such an issue. Texas & Pacific Railway Company v. Snider, 159 Tex. 330, 321 S.W.2d 280 (1959); Vahlsing Christina Corporation v. Ryman Well Service, Inc., 512 S.W.2d 803 (Tex.Civ.App.—Corpus Christi 1974, no writ). Appellant’s point 5 is overruled.

Appellant next assails each of the jury findings on the basis that there was legally insufficient evidence to support the jury’s answers; that there was factually insufficient evidence to support the jury’s answers. In considering these points we will be guided by the usual rules in that regard as set out by the Supreme Court in In Re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951) and the rules in Calvert’s often cited treatise “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L. Review 361 (1960).

We deem it appropriate at this point to discuss some of the rules concerning waiver and estoppel. Then we will apply the evidence to those rules.

It is clear that performance of conditions precedent to a contract can be waived by either words or deeds. Equitable Life Assur. Society of the United States v. Ellis, 105 Tex. 526, 147 S.W. 1152 (1912); Atomic Fuel Extraction Corporation v. Slick’s Estate, 386 S.W.2d 180 (Tex.Civ.App.—San Antonio 1964, writ ref’d n.r.e., 403 S.W.2d 784). Waiver, as it is commonly understood, is an intentional release, relinquishment, or surrender of a known right. Ford v. Culbertson, 308 S.W.2d 855 (Tex.Sup.1958); Massachusetts Bonding and Insurance Company v. Orkin Exterminating Company, 158 Tex. 124, 416 S.W.2d 396 (1967). It is essential that the right exist at the time of waiver, Pennzoil v. Socony Mobil Oil Company, 421 S.W.2d 416 (Tex.Civ.App.—El Paso 1967, no writ); that the person charged with waiver have actual or constructive knowledge of the right or privilege involved, Carolina Ins. Co. v. Christopher, 130 Tex. 245, 106 S.W.2d 138 (Tex.Com.App. 1937, opinion adopted); and that he intends to relinquish the right involved, Houston Fire and Casualty Insurance Company v. Pritchard & Abbott, 155 Tex. 120, 283 S.W.2d 728 (1955).

Estoppel is defined in general as conduct which causes the other party to materially alter his position in reliance on that conduct. It is essential, however, for recovery under estoppel that the party es-topped signify his intent not to insist on the performance of a condition or right at a time when performance of the condition is possible. If the conduct of the party charged with estoppel takes place after such performance of the duty or condition has become impossible, there can be no es-toppel because the party asserting estoppel cannot show that his failure to perform was the result of reliance on the other party’s conduct. Graham v. San Antonio Machine and Supply Corporation, supra.

Waiver, however, may be effective after expiration of the time for performance of a condition has expired, if the condition which is asserted as waived is not a material part of the agreed equivalent of the obligor’s promise and its non-performance does not materially affect the value received by the obligor. United States Fidelity and Guaranty Company v. Bimco Iron and Metal Corporation, 464 S.W.2d 353 (Tex.Sup.1971); Graham v. San Antonio Machine and Supply Corporation, supra. Further, waiver need not be founded on a new agreement, nor be supported by consideration, nor based on estoppel. United States Fidelity and Guaranty Company, supra.

All of which brings us to an application of the evidence to the issues submitted by the trial court on waiver (issue 2 and 3) and estoppel (issues 4, 5 and 6) considering appellant’s contentions about the legal and factual insufficiency of the evidence.

The evidence as developed by the record shows that the parties entered into two breeding contracts on September 20, 1973. Under those contracts two mares were delivered to the Braugh Ranch on April 17, 1974. Burning Match was bred on May 13th and 15th, 1974, and was checked in foal on June 4th and 16th, 1974. Faquir Girl was bred on May 23rd and 25th, 1974, and was checked in foal on June 11th, 16th and 24th. Each mare was “teased back” and had not come into heat by the day of departure of both from the Braugh Ranch on July 19, 1974. Acting upon the appellant’s claim that the mares were pregnant appel-lee paid the stallion service fees in full. After the mares had been returned to the Phillips Ranch they were checked by Dr. George W. Platt, appellee’s veterinarian, and found to be open or without foal on August 2, 1974. Appellee says he notified the appellant of this fact by telephone on the same day. During that conversation appellant requested the return of the breeder’s certificate and a veterinarian’s statement that the mares had been examined and found not pregnant.

Subsequently and upon Braugh’s request the mares were re-examined on August 6, 1974 and October 24, 1974, according to Phillips, and found not pregnant. On August 6, 1974, the parties had another telephone conversation and the appellant again requested the return of the breeding certificates and veterinarian’s certificate that the mares had been checked and found not pregnant before the service fee would be refunded. On August 7, 1974, appellee mailed a letter to the appellant containing the breeding certificates. On August 8, 1974, appellant wrote to the appellee acknowledging a prior telephone conversation concerning the mares. The pertinent parts of that letter are as follows:

“. . .1 have been very pleased with our excellent record of getting mares in foal and I was very disappointed to hear that both of your mares are apparently not in foal at this time. I am hoping that possibly there has been some mistake and would suggest that you have these mares rechecked in a couple of weeks.
At that time, if they are not in foal, please have your veterinarian send us a certificate stating that these mares are barren. Also, it would be necessary at that time, because of the demand for the services of TRUXTON KING, to let us know whether or not it would be your desire to rebreed in 1975 or to have your 1974 stud fees refunded. If you should want your stud fees refunded, it would be impossible for us to guarantee you seasons for 1975 at the current stud fee . ” (Emphasis supplied.)

In that letter appellant made no complaint that the appellee had failed to comply with the first notice requirement of the contract. The jury, therefore, was entitled to infer from the letter and the telephone conversations that upon return of the breeding certificates accompanied by a certification of a veterinarian that the mares were not pregnant that refund or another opportunity for breeding would be provided.

Thereafter, on August 15, 1974, appellee wrote the appellant furnishing the veterinarian’s certificate and informing the appellant that he would not rebreed the mares and that he desired a refund of his money less the appellant’s costs of breedings. All of the foregoing evidence develops Braugh’s intent to waive strict compliance with the notice requirements under paragraph 8 of the breeding contracts.

Support of the jury finding that Braugh had full knowledge on August 8, 1974, of his right to insist on strict compliance with the contractual provision is found in Braugh’s and Phillips’ testimony. Phillips, as noted previously, testified to two conversations occurring prior to August 8, 1974, and in each conversation the fact that the mares were not pregnant was communicated to Braugh. Further, Braugh testified that at least one of these calls transpired and that he was made aware that the mares were not pregnant. Support of this testimony is found in the letter itself which refers to “talking with you on the phone the other day” and then continues on to discuss the possible solutions to the non-pregnancy of the mares. So we hold that the evidence is legally and factually sufficient to support the jury’s answers to the waiver issues (2 and 3).

As previously noted, for estoppel to be applicable the party against whom it is charged must signify his intent not to require performance at a time when performance is possible. Without this element the party charging estoppel could not rely upon the representation or actions of the other party to his prejudice.

The jury in answer to special issue 6 found that but for appellant’s actions the appellee could have complied with paragraph 8 of the breeding contracts. With this we cannot agree. Appellee testified that he had not read the contracts. If the appellee was unaware of paragraph 8 it is apparent that he could not have intentionally complied with its requirements. This error, however, is harmless in that support for the trial court’s judgment can be found on other submissions (waiver). Commercial Standard Insurance Company v. Ford, supra; Rule 434, supra. All of appellant’s “no evidence”, “insufficiency of the evidence”, and “as a matter of law” points are overruled.

Appellant also brings error in his point 20 complaining of the trial court’s refusal to allow cross-examination of Phillips on a trial brief which stated that Phillips first gave notice of non-pregnancy “on or about August 6, 1974”. It is clear that points of error must be supported by the record; if not, that alone requires that they be overruled. Gould v. City of El Paso, 440 S.W.2d 696 (Tex.Civ.App.—El Paso 1969, writ ref’d n.r.e.); Richardson v. Raby, 376 S.W.2d 422 (Tex.Civ.App.—Tyler 1964, no writ). A complete review of the record reveals that the trial brief which forms the basis of appellant’s error has not been brought forward. Appellant’s point 20 is overruled.

We have carefully considered all of appellant’s points of error and they are all overruled.

One other matter to be resolved is appellee’s contention in his brief that we are without jurisdiction to consider appellant’s points of error for the reason that there is nothing in the record to indicate appellant has properly perfected his appeal by filing a motion for new trial within the ten-day period provided by Rule 329b, T.R. C.P. After appellee had filed his brief appellant requested of us leave to file a supplemental transcript showing that he had filed his motion for new trial within the ten-day period. We granted the request and the supplemental transcript does reflect appellant’s timely filing of his motion for new trial. Appellee’s jurisdictional contention is overruled.

The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    BEE JAY CORPORATION, Appellant, v. FORT WORTH NEUROPSYCHIATRIC HOSPITAL, INC., Appellee.
    No. 17862.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 13, 1977.
    Staples & Foster and Ross T. Foster, Hurst, for appellant.
    Garrett & Burkett and Michael R. Burk-ett, Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

Breach of contract suit in which Bee Jay Corporation sued Fort Worth Neuropsychia-tric Hospital, Inc. Bee Jay claimed Hospital had violated a sales contract, for which Bee Jay demanded damages.

Hospital filed: (1) a plea in abatement;
(2) an answer; and
(3) a motion for summary judgment.

After hearing Hospital’s motion for summary judgment, the trial court dismissed the cause without prejudice to Bee Jay’s right to refile.

We reverse and remand.

Bee Jay sold to Hospital real estate and alleged that as a part of the sales contract it was to have the monthly rent of a lease contract with Bernard Dolenz on a part of such realty for the balance of its five-year term. Bee Jay complains that Hospital ejected Dolenz to its damage in the loss of the lease money.

We do not have a statement of facts submitted in this matter. We do have a “Stipulation of Facts” filed which stipulates:

1. That the only written lease agreement existing between Plaintiff, BEE JAY CORPORATION, and Bernard J. Dolenz is that agreement attached as Exhibit “B” to the Plaintiff’s Original Petition on file herein.

2. That the removal of Bernard J. Do-lenz as complained of in this cause of action occurred through and as the result of that forcible entry and detainer action entitled Fort Worth Neuropsychiatric Hospital, Inc. v. Bernard J. Dolenz, being Cause No. 73-72461, in the County Court at Law of Tar-rant County, Texas.

3. That judgment was rendered in the said Cause No. 73-72461, and that such judgment was not appealed and was final prior to the institution of this cause of action.

Bee Jay asserts that the trial court entered the judgment appealed here on its own motion and thereby erred. Bee Jay states that the only motion before the trial court was Hospital’s motion for summary judgment which could not have been rendered as a dismissal without prejudice of Bee Jay to refile. Therefore, Bee Jay claims the court rendered the judgment on its own motion, without any legal basis to do so. Bee Jay reasons that a court may dismiss a cause on its own motion only where:

(1) There is lack of jurisdiction either of subject matter or parties;
(2) Lack of prosecution;
(3) Failure to comply with a rule for cost; or
(4) Some other specific statutory authority-

Citing Sullivan v. Andrews Independent School District, 471 S.W.2d 664 (Tex.Civ. App.—El Paso 1971, writ ref’d n. r. e.).

Hospital in its brief adds:

(5) Lack of jurisdiction amount;
(6) Case calls for an advisory opinion only; and
(7) Prior suit pending.

Since the judgment recites that trial court heard “the Motion for Summary Judgment filed by the defendant” hospital and “after hearing argument of counsel and considering the pleadings and other matters on file with the court herein, stipulations of the parties and the attachments to said Motions for Summary Judgment, That no material issue of fact with regard thereto exists and that said Judgment of Dismissal Without Prejudice should be entered as a matter of law.”

We must conclude the trial court was granting a summary judgment and we must rule accordingly.

In a summary judgment proceeding the burden of proof is on the movant (Hospital) and all doubts as to the existence of a genuine issue as to a material fact must be resolved against him and the evidence must be viewed in the light most favorable to the party opposing the motion. Tex.R.Civ.P. 166-A.

Even if all of the items considered by the trial court were admissible, there would remain a genuine and material fact issue as to what was the correct description of the property involved. Exhibit “A” of plaintiff’s petition describes it as “Lot 6 and the North ½ of Lot 7, Block 4, McCLELLAN’S SUBDIVISION of Block 14, Field-Welch Addition to the City of Fort Worth.” Exhibit “B” of the same petition identifies it as “Lot 7-8 Block 3 McClelland.”

A copy of a judgment purporting to be out of the County Court at Law of Tarrant County, relied upon by Hospital to prove a plea in abatement, recited the property description as “W 52' of Lot 14 . . .of Block 4/15 of the Welch Addition.”

There are material facts to be resolved.

Reversed and remanded.


author: SPURLOCK, Justice.

text:
    Harlen SMITH et ux., Appellants, v. Dr. Aubrey E. GUTHRIE, II, Appellee.
    No. 17889.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 13, 1977.
    Rehearing Denied Nov. 10, 1977.

      Mullinax, Wells, Mauzy & Baab, Inc., and Otto B. Mullinax, Dallas, for appellants.
    Shannon, Gracey, Ratliff & Miller, David E. Keltner and Kleber C. Miller, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is a medical malpractice case. The alleged malpractice consisted of the defendant-doctor’s incorrect diagnosis of heart disease, when in reality, the patient did not have any such heart disease. At the trial, the judge excluded much of the testimony of the plaintiffs’ medical expert. Upon the defendant’s motion at the conclusion of the evidence, the trial court withdrew the case from the jury and rendered judgment in favor of the defendant as a matter of law, because (inter alia) there was no testimony in the case which established any standard of practice which had been violated by the defendant, and there was no expert testimony upon which to base any issue to be submitted to the jury. On appeal, the appellants contend, basically, that there was sufficient evidence to go to the jury despite the excluded testimony of their medical expert and that the medical expert’s excluded testimony was admissible.

We affirm the judgment of the trial court.

In March of 1971, Jeanette Smith was admitted to Glenview Hospital by her psychiatrist, Dr. B. Rousch. While making rounds for Dr. Rousch, Dr. Aubrey Guthrie II saw Mrs. Smith for the first time. She complained of chest pains; accordingly, Dr. Guthrie ordered an E.K.G. test, the results of which were abnormal.

In November of 1971, Mrs. Smith, suffering from chest pains, was readmitted to the hospital by Dr. Rousch. Feeling that Mrs. Smith was having a heart attack, he called in Dr. Guthrie. After ordering that certain tests be administered, Dr. Guthrie concluded that the tests indicated arteriosclerotic heart disease and myocardial ischemia. At that time, he considered performing an ar-teriogram; however, Dr. Rousch advised against the administering of that test, due to the patient’s mental state. Later, Dr. James R. Osborn was called in to examine Mrs. Smith. After performing an arterio-gram, his diagnosis was that she had never had any heart disease. Plaintiffs then instituted this suit for damages against Dr. Guthrie for his misdiagnosis (inter alia) of Mrs. Smith’s condition.

At the trial, plaintiffs’ attorney introduced into evidence ten hospital charts covering Mrs. Smith’s admissions to the hospital. Dr. Arthur Grollman, an internist and pathologist on the staff of the University of Texas Medical School at Dallas, reviewed these charts; he was offered as a witness by the plaintiffs. Upon objection by defendant’s counsel, the trial court excluded most of Dr. Grollman’s testimony.

By their first two points of error, the appellants contend that the trial court erred in removing the case from the jury and rendering a take-nothing judgment against them, since there were fact issues for the jury’s consideration.

When a case is withdrawn from the jury, the reviewing court must view the evidence in the light most favorable to the losing party. Anderson v. Moore, 448 S.W.2d 105 (Tex.1969); Vincent v. Vincent, 320 S.W.2d 217 (Tex.Civ.App.—Beaumont 1958, writ ref’d n. r. e.). However, the appellate court must affirm the trial court’s withdrawal of the case from the jury, if the record establishes any ground which entitles the movant to judgment as a matter of law. Granate v. Bravo, 498 S.W.2d 499 (Tex.Civ.App.—San Antonio 1973, no writ).

The appellants contend that there were five fact issues for the jury’s consideration, which were:

“A. In Dr. Guthrie’s diagnosing Jeanette Smith as suffering from arterioscle-rotic heart disease during each and all of his admissions of her to Glenview Hospital when in truth she was not.
B. In Dr. Guthrie’s falsely representing to Appellants that he was consulting with a heart specialist concerning Jeanette Smith’s medical condition prior to her admission to Glenview Hospital on November 8, 1972.
C. In Dr. Guthrie’s failure to place Jeanette Smith in the hands of a heart specialist before November 11, 1972.
D. In Dr. Guthrie’s representing to Appellants that Jeanette Smith was experiencing heart attacks and had a serious heart disease prior to November 8, 1972.
E. In Dr. Guthrie’s failure to have a coronary arteriogram performed on Plaintiff Jeanette Smith before November 11, 1972.”

Appellee strenuously contends that each of these enumerated subpoints contain what is essentially an allegation of negligence on the part of the defendant-physician. In order to establish a cause of action in a medical malpractice case, a plaintiff must demonstrate by expert testimony that the acts or omissions of the physician constituted negligence. Wilson v. Scott, 412 S.W.2d 299, 302 (Tex.1967); Hart v. Van Zandt, 399 S.W.2d 791, 797 (Tex.1965); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). Thus, it is necessary for a plaintiff to introduce evidence through a medical expert that will establish a medical standard of care. This medical standard of care must be established so that the fact-finder can determine whether the doctor’s acts or omissions deviated from the standard of care so as to constitute negligence or malpractice.

This court has examined the record to determine whether there was any evidence that established a medical standard. On direct examination, Mrs. Smith testified that after learning that she didn’t have heart trouble and wasn’t going to die, she asked Dr. Guthrie, “What am I going to tell my relatives and friends? Here they’ve been expecting me to die at any minute. Now all of a sudden I’m going to live.” Then, she testified that Dr. Guthrie told her: “Just tell them you have a dumb, stupid doctor.” Appellants urge that the last sentence in this testimony established the medical standard. It is true that the defendant in a medical malpractice case can establish the medical standard by his own testimony. Wilson v. Scott, supra. We note that it is Mrs. Smith’s (rather than Dr. Guthrie’s) testimony that the appellants rely upon to establish the medical standard. Even if it were Dr. Guthrie’s testimony, it would not have established the requisite standard of care.

We hold that the record is lacking of any evidence establishing a medical standard of care; accordingly, we overrule points of error # 1 and # 2.

In points of error # 3 through # 10, the appellants contend that the trial court erred in excluding from the jury’s consideration most of the testimony of Dr. Arthur Groll-man, their medical expert.

The following are illustrative of the testimony of Dr. Grollman that the trial court, upon objection by defendant’s counsel, excluded from the jury:

1. That a reasonably prudent doctor could not reach a firm diagnosis of arteriosclerotic heart disease, myocardial ischemia or myocardial infarction, based upon Plaintiffs’ Exhibit 2, the Glenview Hospital Chart of November 1, 1971.
2. As to what he would have done as a treating doctor in describing a diagnosis for Jeanette Smith at the time of her discharge on her third admission to Glenview Hospital.
3. As to whether he could have reached the diagnosis of arteriosclerotic heart disease through the period of the 1st, 2nd, 3rd, and 4th admissions, had he been treating Jeanette Smith and in the application of the medical practice as he knew it to be in the Dallas-Fort Worth Community.
4. As to what he found in review of the fourth hospital chart of Jeanette Smith’s 4th admission to Glenview Hospital to support the diagnosis of arteriosclerotic heart disease, angina pectoris, or myocardial infarction.
5. What would have been the duty of a treating doctor up to the time of the 4th admission of Jeanette Smith, if a diagnosis of arteriosclerotic heart disease, angina pectoris or myocardial infarction could not be reached as a firm medical basis.
6. Assuming a patient such as Mrs. Jeanette Smith that you learned about in the 1st, 2nd, and 3rd admissions of the Glenview Hospital came to you on the 4th admission and that the conditions and circumstances as reflected by Plaintiffs’ Exhibit 4, the chart of the 4th admission, occurred. Do you have an opinion based upon reasonable medical probabilities and your own training and experience as to whether an average doctor in the standard practice of medicine in the Dallas-Fort Worth area could reach the diagnosis of arteriosclerotic heart disease. (Italics added.)

The appellee urges that all of the excluded testimony of Dr. Grollman was properly excluded because of the form of the questions asked. The form of questions to expert witnesses in a medical malpractice case is very important.

In a medical malpractice case based upon misdiagnosis, the factfinder will ultimately have to decide whether the diagnosis of the doctor constituted negligence or malpractice. In a jury trial of such a case, one of the special issues for the jury will be phrased in this manner:

Did the physician make a diagnosis which a reasonable and prudent member of the medical profession would not have made under the same or similar circumstances?

A similar special issue was recently approved by the Texas Supreme Court in a medical malpractice case based upon allegations that the mode of medical treatment was not a proper remedy for the diagnosed condition. Hood v. Phillips, 554 S.W.2d 160, 165 (Tex.1977).

In the case of Snow v. Bond, 438 S.W.2d 549, 550-51 (Tex.1969), the court wrote:

“What constitutes negligence or malpractice is a mixed question of law and fact that can only be determined by the trier of fact on the basis of evidence admitted and instructions given by the court. A medical expert is not competent to express an opinion thereon. . The question of what a reasonable and prudent doctor would have done under the same or similar circumstances must also be determined by the trier of fact after being advised concerning the medical standards of practice and treatment in the particular case. An expert witness can and should give information about these standards without summarizing, qualifying or embellishing his evidence with expressions of opinion as to the conduct that might be expected of a hypothetical doctor similarly situated. The latter is not an appropriate subject for expert testimony.” (Italics added.)

In Christian v. Jeter, 445 S.W.2d 51, 53 (Tex.Civ.App.—Waco 1969, writ ref’d n. r. e.), the court wrote in clear terms:

“Testimony of what a reasonably prudent doctor would have done, negligence, and whether the plaintiff’s condition was due to defendant’s negligence are inadmissible conclusions.” (Italics added.)

It is clear to the court that an expert witness in a medical malpractice case cannot be asked what a reasonably prudent doctor or an average doctor or treating doctor or any hypothetical doctor would have done in the same or similar circumstances. All of these questions invade the province of the jury.

Dr. Grollman is an internist and pathologist, and of course, he has received extensive training and education in those fields. Many of the questions asked of Dr. Grollman sought to elicit from him what he would have done or whether he could have reached the diagnosis or what he found in the review of the hospital charts. Such questions were improper in that they asked what he, a highly trained specialist, would have done. The defendant in this case is a general practitioner. As such, he cannot be held to the standard of care of a specialist. Also, it is irrelevant to the case at bar what this specialist would have done or whether he could have reached such a diagnosis.

We hold that all of Dr. Grollman’s excluded testimony was properly excluded by the trial court; accordingly, we overrule points of error # 3 through # 10.

There are a variety of questions that can be asked of an expert witness in a medical malpractice case to establish the proper standard of care. For example, after a hospital chart has been admitted into evidence, the attorney should seek to ascertain that his expert witness is familiar with the standard practice of medicine in the Dallas-Fort Worth area. Having laid this foundation, the attorney could ask this question, among others, to establish the proper standard of care:

Based upon plaintiffs’ exhibit # 2 which has been admitted into evidence, is a diagnosis of arteriosclerotic heart disease, myocardial ischemia or myocardial infarction against the standard medical practice as found in the Dallas-Fort Worth area?

The questions asked in the ease of Cleveland v. Edwards, 494 S.W.2d 578, 580 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ) are also proper questions to ask to establish the standard of care. See Jim M. Perdue’s The Law of Texas Medical Malpractice, p. 118-121, Houston Law Review, Inc., (1975) for a further discussion of this point and the authorities therein cited.

By point of error # 11, the appellants contend that the trial court erred in denying their attorney “the right and opportunity to admit to the jury his instructions” to Dr. Grollman that: “Every question that I will propound to you, now I want it to be answered in light of the standard medical practice in this area as it relates to heart disease and based upon reasonable medical probabilities and your own training and experience.” (Italics added.)

We overrule this point of error in that the instruction to the witness seeks to inject the standard of a specialist as the basis for answering all the questions to be propounded to him.

All of the appellants’ points of error have been overruled; the judgment of the trial court is affirmed.


text:
    Lydia M. HARVEY, Individually and d/b/a Harvey’s Zip Gas and d/b/a Minnow Ranch, Appellant, v. PEDIGO OIL CO., INC., Appellee.
    No. 17890.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 13, 1977.
    Rehearing Denied Nov. 10, 1977.

      John Harvill, Bridgeport, for appellant.
    Milford Lee Hall, Bowie, for appellee.
   OPINION

HUGHES, Justice.

Pedigo Oil Co., Inc. sued Lydia Harvey, d/b/a Harvey’s Zip Gas and d/b/a Minnow Ranch, on a sworn account. Harvey filed an unsworn pleading containing a general denial and a special exception to Pedigo’s request for attorney’s fees. Pedigo filed a Motion for Partial Summary Judgment which was controverted by a sworn reply from Harvey. Jury was waived and trial was had before trial court on the merits, as well as on the summary judgment. The trial court rendered judgment for Pedigo in the amount of $10,599.07 and for attorney’s fees of 25%.

We affirm.

The Statement of Facts reveals that, at the time of the suit, Pedigo was a petroleum jobber supplying gasoline, diesel and other petroleum products to service stations, including the two operated by Harvey. For some time Pedigo had been delivering gasoline to underground tanks owned by it at the stations operated by Harvey. Harvey had control of the Pedigo-owned pumps at both her locations and was charged for the gas actually pumped through those pumps. Pedigo would accept the “read outs” made on the pump meters from time to time and bill Harvey for same. Harvey paid these billings by check until March, 1976 when Bowie National Bank refused payment for insufficient funds.

Harvey claims the trial court erred because the gasoline, subject of this suit, was not sold to her but was on consignment. Under Tex.Bus. & Comm.Code Ann. § 2.316 (Tex.UCC 1968), Harvey claims there was not a sale and that Pedigo retained title until it was sold to the retail customer and simply paid her a 2$ commission for each gallon sold through Pedigo’s pumps in her station. Therefore it was a “special contract” and not an open account to support a sworn account under Tex.Rev.Civ.Stat.Ann. art. 2226.

Pedigo contends that a sale from it to Harvey took place every time gas was pumped, being part of a continuing day to day and month to month transaction as envisioned by Tex.Rev.Civ.Stat.Ann. art. 2226.

Harvey made no contention that the metering was incorrect or as to the amount of the checks.

There is no question that gasoline is personal property after severance. Tirado v. Tirado, 357 S.W.2d 468 (Tex.Civ.App.— Texarkana 1962, writ dism’d w. o. j.).

We hold that the facts in this ease sustain Pedigo’s sworn account pleading and that a special contract is not here involved. Davis Bumper to Bumper, Inc. v. American Petrofina Co., 420 S.W.2d 145 (Tex.Civ.App.—Amarillo 1967, writ ref d n. r. e.), in fact, recognizes the sale of gasoline as coming under a suit on sworn account. We note that Harvey did not deny under oath Pedigo’s sworn pleadings, giving further support to trial court’s decision for Pedigo.

By Point of Error Number 2, Harvey says the trial court erred in allowing Pedigo attorney fees because there is no evidence showing that Pedigo presented to Harvey the account sued upon 30 days before the date judgment was rendered.

Harvey correctly cites Edinburg Meat Products Co. v. Vernon Co., 535 S.W.2d 432 (Tex.Civ.App.—Corpus Christi 1976, no writ), for the proposition that plaintiff has the burden of proving presentment of claim at least 30 days before judgment even though defendant’s original answer was legally insufficient to put in issue matters relating to the sworn account itself.

We realize that mere filing of the suit does not constitute presentment of the claim under Tex.Rev.Civ.Stat.Ann. art. 2226.

However, in this case Pedigo’s lawyer, Milford Hall, testified to going to see Mrs. Harvey (Mrs. Barker?) “to talk to her about it [the account], but I was engaged in a very abrupt . . . manner by a fellow on the premises by the name of James Barker, who threatened to whip me, . the only question I was allowed to get from the defendant in this cause, Mrs. Harvey, was the fact that you [Mr. Harvill] were representing her.” She said, “I have hired a lawyer. You go take it up with him.”

Mrs. Harvey (Barker) admitted to essentially the same conversation at that time with some variations and differences.

Pedigo filed suit the next day asking for a judgment including attorney’s fees and more than 30 days thereafter filed an amended petition asking for a judgment on sworn account and attorney’s fees. On August 31, 1976 trial court rendered the judgment here appealed.

At the trial extensive testimony was elicited concerning the terms between Pedigo and its attorney for a one-third fee contingent on recovery as well as a substantial listing of time and work expended by Mr. Hall in this case.

Taking these facts into consideration and giving every reasonable intendment to the findings of the trial court, we hold that the trial court did have sufficient evidence of presentment of the claim to justify assessing the attorney fees adjudged.

Affirmed.


author: KLINGEMAN, Justice.

text:
    Gilbert M. LEYVA, Appellant, v. James L. SMITH, Appellee.
    No. 15815.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 19, 1977.

      Frank M. Teveni, Donald J. Mach, Teve-ni, Mach & Clarke, San Antonio, for appellant.
    William 0. Hastings, Jr., San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a comparative negligence case. Appellee, James L. Smith, sued appellant, Gilbert M. Leyva, for damages to Smith’s car occurring in a two-car collision in Bexar County, Texas. Trial was to the court without a jury. The court found that plaintiff and defendant were equally at fault [each 50 percent responsible for the accident]; that the damages sustained by plaintiff in the accident were $300.00; and that plaintiff was entitled to judgment against defendant in the amount of $150.00 [50 percent of actual damages — $300.00].

The sole issue before us is whether the Texas Comparative Negligence Statute allows recovery when the plaintiff’s negligence is equal to but not greater than the defendant’s negligence.

This case is before us on an agreed statement of facts in which the parties stipulated and agreed:

1. Plaintiff properly filed suit and pleaded his case.

2. Defendant timely filed his answer.

3. The court had jurisdiction and the case was tried without a jury.

4. The trial court found by sufficient evidence that the parties were equally negligent and that each party’s negligence was the proximate cause of the damages sustained by both parties.

5. The court found, on sufficient evidence, that the damages sustained by the plaintiff were $300.00, whereupon the court entered a judgment for plaintiff in the sum of $150.00, 50 percent of the plaintiff’s actual damage.

6. Judgment was entered under Tex. Rev.Civ.Stat.Ann. art. 2212a (Supp.1977).

7. Defendant timely filed his notice of appeal and appeal bond.

The pertinent portion of the applicable statute involved, Art. 2212a, provides as follows:

Modified comparative negligence
Section 1. Contributory negligence shall not bar recovery in an action by any person or party or the legal representative of any person or party to recover damages for negligence resulting in death or injury to persons or property if such negligence is not greater than the negligence of the person or party or persons or parties against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person or party recovering.

We have found no Texas cases directly in point. A recent case by the Amarillo Court of Civil Appeals, Willingham v. Hagerty, 553 S.W.2d 137 (Tex.Civ.App.—Amarillo 1977), touches on this matter, and its holding basically supports the judgment of the trial court here. There are cases from other jurisdictions with similar statutes that are in point and there are a number of law review articles discussing the particular problem here involved. These cases and authorities unifoimly support the trial court’s judgment here.

Both plaintiff and defendant agree that the Texas Comparative Negligence Statute is modeled after the equivalent statute in Wisconsin.

In a recent case by the Wisconsin Supreme Court, McGowan v. Story, 70 Wis.2d 189, 234 N.W.2d 325, 330 (1975), the Court commented on a situation which directly parallels the instant case, and said:

Under the legislation as it now exists, and has existed since 1971, a Plaintiff, '‘such as McGowan in this case, who has been found 50 percent negligent, may recover 50 percent of his damages.

Another Wisconsin case, Lupie v. Hart-zheim, 50 Wis.2d 415, 195 N.W.2d 461 (1972), involved an automobile accident in which the jury found that the parties were each 50 percent negligent. The Wisconsin Supreme Court was confronted with the problem of deciding on the effect of an amendment to the Comparative Negligence Statute, which deleted the words “as great as” and inserted the words “greater than,” and whether or not the amendment was retroactive, because at the time of the accident the amendment was not in effect. The Court stated that the amendment was not retroactive and affirmed the lower court’s take nothing decision, but stated:

That statutory modification struck from the statute the words, ‘as great as,’ and substituted therefor the words, ‘greater than.’ Under this statutory modification, plaintiffs found 50 percent negligent will be able to recover 50 percent of their damages from a defendant who is found to be equally at fault. 195 N.W.2d at 462.

The Texas periodicals and law review articles discussing the applicable statute have reached the same conclusion as the Wisconsin Court. In C. Heft & C. Heft, Comparative Negligence Manual § 3.510 (Supp.1977), it is stated:

The Texas comparative negligence statute allows recovery if the negligence of the plaintiff is not greater than the negligence of the defendant. Thus, if both the plaintiff and the defendant are found to be equally negligent, presumably the plaintiff would recover one-half of his damages.

A frequently cited law review article, Abraham & Riddle, Comparative Negligence — A New Horizon, 25 Baylor L.Rev. 411, 414 (1973), states:

The statute [art. 2212a], however, does not create the so-called pure comparative negligence situation. It establishes a modified comparative negligence system, frequently referred to as the 51% Bar Rule; meaning simply that the claimant is barred from recovery only if his quantum of negligence exceeds the combined negligence of all those against whom he claims. Restated, the claimant may recover so long as his negligence is 50% or less of all the negligence combined, among himself and those parties from whom he seeks recovery.

See also Abraham, Proposed Texas Modified Comparative Negligence Statute: Its Operation and Effect, 35 Tex.B.J. 1114 (1972); Cadena, Comparative Negligence and the Special Verdict, 5 St. Mary’s L.J. 688 (1974); Fisher, Nugent & Lewis, Comparative Negligence: An Exercise in Applied Justice; 5 St. Mary’s L.J. 655, 658-59 (1974); Keeton, Annual Survey of Law—Torts, 28 Sw.L.J. 1 (1974); Comment, Comparative Negligence in Texas, 11 Hous.L. Rev. 101 (1973).

We have concluded that the correct and better rule is that as held by the Wisconsin Supreme Court in the decisions hereinbe-fore cited and as interpreted in the law review articles and periodicals hereinbefore referred to.

The trial court’s judgment was correct and the judgment is affirmed.

      . “The proposed Texas Comparative Negligence Statute was modeled after the Wisconsin and New Hampshire Comparative Negligence Statutes in that all three statutes encompass the ‘51 per cent Bar Rule,’ i. e., contributory negligence is not a bar to recovery unless such negligence is ‘greater than’ the negligence of the defendant.” Abraham, Proposed Texas Modified Comparative Negligence Statute: Its Operation and Effect, 35 Tex.B.J. 1114 (1972).


text:
    Michael Lynn TAFT, Petitioner, v. B. B. SCHRAUB and E. W. Patterson, District Judges and Rebecca Taft Johnson, Respondents.
    No. 15953.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 19, 1977.
    Daniel R. Rutherford, John C. Laye, Jr., John L. Ray, San Antonio, for appellant.
    Kirk Patterson, James D. Stewart, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is an original proceeding in this Court for writ of prohibition or, alternatively, to stay the order of the trial court under Rule 364(f), Tex.R.Civ.P.

This proceeding is one of a series of proceedings in various courts involving Michael Lynn Taft, the petitioner herein, and his wife, Rebecca [Taft] Johnson. A divorce was granted between such parties in Guadalupe County, Texas, and on July 6, 1976 an order was entered by the trial court appointing Michael Lynn Taft as managing conservator and Rebecca Taft [Johnson] as possessory conservator of Michael Denver Taft, the only child of such marriage. A chronological summary of the pertinent proceedings thereafter is as follows:

1. On August 31,1976 the District Court of Guadalupe County, Texas entered an order removing Michael Lynn Taft as managing conservator and appointing Rebecca [Taft] Johnson as such managing conservator, which order was entered by the trial judge after a hung jury. The order also provides for child support payments to be made by Michael Lynn Taft. An appeal was timely perfected from this order to this Court and was ultimately transferred to the Court of Civil Appeals for the 8th Supreme Judicial District (El Paso) under the provisions of Art. 1738, Tex.Rev.Civ.Stat.Ann. (1962).

2. On June 8,1977 the 8th Court of Civil Appeals rendered its judgment and opinion on the appeal from the August 31, 1976 order. Such order was reversed and the cause remanded, which judgment provides that the parties “are returned to the status and position which they held under the Court’s order entered on July 6, 1976

3. Application for writ of error was made to the Texas Supreme Court and is currently pending.

4. On August 29,1977 the District Court of Guadalupe County rendered a contempt order holding Michael Lynn Taft in contempt for disobedience of the August 31 order. Michael Lynn Taft’s attorney, Daniel R. Rutherford, Esq., was also held in contempt.

5. Application for writ of Habeas Corpus was filed in this Court on September 1, 1977 by Michael Lynn Taft and his attorney, Daniel R. Rutherford, Esq. This Court, after a hearing, on September 27, 1977, in Cause No. 15929, styled Ex parte Daniel R. Rutherford and Michael Lynn Taft, Relators, held that we did not have jurisdiction of Mr. Rutherford’s application for writ of Habeas Corpus, but granted Michael Lynn Taft’s application for writ of Habeas Corpus, and Taft was ordered released from custody.

6. On September 26, 1977 the District Court of Guadalupe County, Texas granted Rebecca [Taft] Johnson’s application for writ of attachment of the minor child, Michael Denver Taft, which writ of attachment was executed on September 27, 1977. This is the proceeding here under attack in the instant matter before us.

7. On October 3,1977 the herein application for writ of prohibition and, alternatively, to stay the order of the trial court, was filed in this Court.

Petitioner asserts that he has no adequate remedy of law and that the writ of attachment and attitude of the trial court shows the intent to thwart the rulings of this Court of Civil Appeals and the 8th Court of Civil Appeals.

Respondents contend that this Court is without jurisdiction in the herein proceedings. We agree.

Our original jurisdiction to issue extraordinary writs is narrow and limited, and is defined and delineated in articles 1823, 1824, and 1824a, Tex.Rev.Civ.Stat. Ann. (1964).

Ordinarily, before a court of civil appeals will issue an original writ, it is necessary that either an order of the court of civil appeals be interfered with or an interference threatened.

Relator maintains that this Court has jurisdiction under Art. 1823. A writ of prohibition may be issued to prevent a trial court from interfering with the judgment or subject matter of the suit after the jurisdiction of the court of civil appeals has attached thereto. It is not entirely clear from relator’s petition or from the oral argument whether he seeks to enforce the jurisdiction of this Court, arising out of the Habeas Corpus proceedings heretofore held in this Court, or seeks in this Court to enforce the jurisdiction of the 8th Court of Civil Appeals.

It is to be pointed out that there is no appeal pending in this Court involving relator and respondent. The proceedings growing out of and involving the divorce between relator and respondent, in particular the order of the District Court of Guadalupe County removing relator as managing conservator and appointing respondent as managing conservator, was appealed to this Court, but this appeal was transferred under Art. 1738 to the 8th Court of Civil Appeals, which thereafter rendered its judgment and opinion therein, presently pending on application for writ of error in the Supreme Court of Texas. No order or decree of our Court pertaining to this matter is being interfered with or threatened. Moreover, in the Habeas Corpus proceedings in this Court, relator’s application for writ of Habeas Corpus was granted and he was ordered released from custody. The herein proceedings involving the writ of attachment of the child do not in any manner threaten or interfere with the judgment of this Court in the Habeas Corpus proceeding.

Our Supreme Court, in Winfrey v. Chandler, 159 Tex. 220, 318 S.W.2d 59 (1958), said:

A court which is authorized to issue extraordinary writs to enforce its jurisdiction may not exercise that power in aid of its potential jurisdiction. It is only after the jurisdiction has been invoked in the manner prescribed by law and has thus become active that the court may act to enforce or protect the same.

In Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S.W. 577 (1914), the Court said:

The power of a court to enforce its jurisdiction does not include an authority to prevent the prosecution of any suit to which a judgment of the court may be an effectual bar, but which makes no attempt to disturb it, or to interfere with its execution. The assumption of such right would invest a court not merely with the control of its own judgments and authority to enforce its jurisdiction, but with a further power to govern other courts in the exercise of their lawful jurisdiction; and the result would be that the issue of the conclusiveness of a judgment upon what is urged as a distinct cause of action could never be determined except by the court that rendered it. The proper test of the question therefore is, not whether the suit recognizes or repudiates the effect of the judgment, since that does not necessarily involve the jurisdiction of the court, but whether it amounts to an interference with its due enforcement and therefore invades a jurisdiction it is forbidden to trench upon.

See also Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926); Berman v. Kirk, 543 S.W.2d 27 (Tex.Civ.App.—Eastland 1976, mand. overr.); Guillory v. Davis , 527 S.W.2d 465 (Tex.Civ.App.—1975, no writ); Texas Employers Insurance Ass’n v. Kirby, 150 S.W.2d 123 (Tex.Civ.App.—Dallas 1941, no writ).

Relator does not brief his alternative plea to stay the order of the trial court under Rule 364(f), Tex.R.Civ.P. In any event, we find no merit in such contention, and under the record before us, we have no jurisdiction to issue a stay order under Rule 364(f) in the proceeding herein involved.

We have concluded that:

1. The proceeding of the District Court of Guadalupe County, Texas, here under attack, does not in any manner interfere with, encroach upon, or threaten our jurisdiction.

2. No order, judgment, or decree of this Court is being disobeyed or interfered with, nor is interference threatened.

3. The application herein does not seek to compel the court to proceed to trial and judgment.

4. No Habeas Corpus jurisdiction of this Court is here involved.

Relator’s application for writ of prohibition or, alternatively, to stay the order of the trial court under Rule 364(f), is dismissed for lack of jurisdiction.

      . See Norvell, Origina1 Jurisdiction of the Court of Civil Appeals to Issue Extraordinary Writs, 8 Sw.L.J. 389 (1954).

      . Art. 1823 provides: “Said courts and the judges thereof may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.” Art. 1824 provides: “Said Courts or any Judge thereof, in vacation, may issue the writ of Mandamus to compel a Judge of the District or County Court to proceed to trial and judgment in a cause, returnable as the nature of the case may require.”
      Art. 1824a provides that the court of civil appeals may issue writs of Habeas Corpus under certain circumstances.


author: HALL, Justice.

text:
    FIRST UNITED METHODIST CHURCH OF MARLIN, Texas, Appellant, v. Walter H. ALLEN et al., Appellees.
    No. 5781.
    Court of Civil Appeals of Texas, Waco.
    Oct. 20, 1977.
    Rehearing Denied Nov. 10, 1977.

      John B. Henderson, Jr., Cameron, for appellant.
    Robert G. Carter, Jack D. Welch, Marlin, Wiley Stem, Jr., Danny C. Wash, Waco, John L. Hill, Atty. Gen. of Tex., Stephen J. Wilkinson, Asst. Atty. Gen., Austin, for ap-pellees.
   HALL, Justice.

Appellees Walter H. Allen and Mary Jane Reagan, executor and executrix of the estate of Lalla Branson, deceased, brought this suit for a declaratory judgment construing the deceased’s last will and three codicils to it. We are concerned on this appeal only with conflicting claims by appellant First United Methodist Church of Marlin, Texas, and appellee L. D. Moore, which arose in this fashion: In the will the testatrix devised her home to the Church. However, in a codicil she stated, “I have willed my home to First Methodist Church, but I want them to let L. D. Moore buy it for $10,000.00.” After a hearing without a jury, the court construed the language in the codicil to be mandatory and decreed that Moore was entitled to buy the home from the Church for $10,000.00. The Church appeals asserting that the statement in the codicil is precatory only, and that it takes the home under the will. We overrule these contentions and affirm the judgment.

The will was formal and typewritten. It was executed on January 4,1973. The codicils were all holographic. One was dated, “August, 1974”; another was dated August 28, 1974”; and the third was dated “October 19, 1974.” The testatrix died in April, 1975. The will and all three codicils have been duly probated.

The dispositive paragraphs of the will provide as follows:

2.To the First United Methodist Church of Marlin, Texas, I give and bequeath my home, located at the corner of Houghton and Carter Streets, and being a part of Lot No. 15 of the Curry Addition to the town of Marlin.
3. To my friend Katie Ainsworth, wife of Shelton Ainsworth, I give and bequeath the sum of Five Thousand and 00/100 ($5,000.00) Dollars.
4. To my friend Josephine Watkins, daughter of Mrs. Joe M. Watkins, I give and bequeath the sum of Five Thousand and 00/100 ($5,000.00).
5. To my friend Frank Goodrich, son of Mrs. N. W. Goodrich, I give and bequeath the sum of Five Thousand and 00/100 ($5,000.00) Dollars.
6. To the Methodist Home Foundation, Waco, Texas, I give and bequeath the sum of One Thousand and 00/100 ($1,000.00) Dollars.
7. To my housekeeper, Ruby Hynson, I give and bequeath my china, and a sofa which is in my house. Mary Jane Regan knows what these items are and will identify them.
8. In the event that I do not have sufficient money to pay the money bequests made herein, the devises of money shall share the money I have in proportion to the amount devised and given to them.
9. All the rest and residue of my estate of every kind and character I give to my friend and neighbor Mary Jane Re-gan. ■

The codicil dated “August, 1974” begins as follows: “What I want done with several things in my home: To Ruby Hynson: Everything in Mabel’s room (n. east bedroom) except the clothes in the closet. Give them to someone who needs them. Also the marble top coffee table in the library downstairs southeast room. Also the Seth Thomas clock in the back room downstairs on mantel.” Then, the codicil contains this language: “L. D. Moore wants a chance to buy the home. Give him first chance. I am leaving him the clock at the foot of stairs.” Thereafter follows a number of specific bequests to various individuals (including Katie Ainsworth, Frank Goodrich, and Mary Jane Reagan, who were named in the will, and others who were not named in the will) of pictures, furniture, silver, china, and other household and personal effects. Near the end of this codicil the testatrix named eleven men under the heading “Pallbearers,” the second man named being “L. D. Moore.” Also named were Frank Goodrich and Walter Allen (appointed executor in the will).

The codicil dated August 28, 1974, begins, “From my will ... To' Ruby Hyn-son,” and makes a number of additional specific bequests to Mrs. Ruby Hynson which are not in question on this appeal. It ends, “Signed: Not to be changed. Lalla Branson.”

The third and last codicil reads in full as follows:

“I have willed my home to First Methodist Church, but I want them to let L. D. Moore buy it for $10,000.00. The various things in my house that have not been assigned to a special person will go with the house.
“The house is 62 years old and at present time needs lots of repair, so we decided on the $10,000.00 price.
“Lalla Branson — Oct. 19, 1974.”

The evidence shows that the testatrix was advanced in years and probably in her eighties at the time of her death, and that she was a retired schoolteacher. She never married and no relative survived her. She was a life-long member of appellant Church, served many years as its organist and secretary, and was active in its women’s organization and a Sunday school class. Her mother and sister were also active in the Church during their lives. Other than showing that Moore was not a relative of testatrix, the record does not directly show their relationship. However, it is manifest under the codicils that they were good friends. The parties stipulated that the value of testatrix’s home is $42,000.00.

The primary concern of the court in the construction of a will and its codicil is to ascertain and declare the intent of the testator, and, if legal, enforce that intent. Sellers v. Powers, 426 S.W.2d 533, 536 (Tex.Sup.1968). To accomplish these ends, the court will consider the instruments in their entirety and, where possible, harmonize and give effect to all of their parts. 61 Tex. Jur.2d 259-261, Wills, §§ 138, 139. Where, as here, there are several codicils to be considered, it is presumed that the testator has reexamined the testamentary disposition in the original will and the previous codicils before executing the last; and the will and the codicils are to be regarded as one instrument speaking from the date of the last codicil. It therefore follows that insofar as the last codicil makes testamentary changes deviating from previous dispositions of property, the provisions of the last codicil will control. Hinson v. Hinson, 154 Tex. 561, 280 S.W.2d 731, 735 (1955); Boyd v. Frost Nat. Bank, 145 Tex. 206, 196 S.W.2d 497, 508 (1946).

Pointing to the fact of testatrix’s long, close relationship with the Church, and to the fact that Moore was not related to her, the Church argues that testatrix’s use of the word “want” in the codicil of October 19, 1974, was not used in a mandatory sense, but is merely suggestive and indicative of a request or expectation on her part, and that in the context of the will as a whole, it was not meant “to constitute a limitation or restriction on the full ownership and discretion of appellant as to the terms of the sale of the property left it” by testatrix.

In considering informal language used by a layman who did not have legal advice in drawing his will, the court will not construe such language technically but will do so liberally in the endeavor to arrive at the intent of the testator. Welch v. Straach, 531 S.W.2d 319, 321 (Tex.Sup.1975).

Although such words as “want,” “wish,” and “desire” in their ordinary and primary meaning are precatory, they are often construed as mandatory when used in a will where it appears from the context or from the entire document that they are the expression of the testator’s intention in disposing of his property. Bergin v. Bergin, 159 Tex. 83, 315 S.W.2d 943, 947 (1958).

When the will and the codicils in question are construed together and in their entirety, it is plain that the testatrix’s purpose in executing the codicils was to effect changes in the disposition of her properties as originally set forth in the will, and to make new dispositions in favor of several close friends including appellee Moore; and that the word “want” as used in the codicils was mandatory in meaning and not merely expressive of a precatory desire.

Appellant’s points and contentions are overruled. The judgment is affirmed.


author: JAMES, Judge.

text:
    Edward S. HUDDLESTON, Appellant, v. Jackson H. SPEEGLE and Robert D. Stringfellow d/b/a Willow Creek Stables, Appellees.
    No. 5716.
    Court of Civil Appeals of Texas, Waco.
    Oct. 20, 1977.
    Rehearing Denied Nov. 10, 1977.

      James G. Murry, San Antonio, for appellant.
    G. Ward Beaudry, Lane, Savage, Counts & Winn, Dallas, for appellees.
   OPINION

JAMES, Judge.

This is an appeal from a default judgment. We reverse and remand.

Plaintiff-Appellees Jackson H. Speegle and Robert D. Stringfellow d/b/a Willow Creek Stables, brought this suit against Defendant-Appellant Edward S. Huddleston to collect a sworn account and enforce a statutory liveryman’s lien upon two horses allegedly owned by Defendant Huddleston.

At the time of trial, the Plaintiffs and their counsel appeared and announced ready; however, neither the Defendant nor his counsel appeared; whereupon, the trial court proceeded to trial, heard evidence, and entered judgment in favor of Plaintiffs against Defendant in the amount of $5793.00 with 9% interest from date of judgment, plus $1500.00 attorney’s fees for services in the trial court and an additional $1000.00 for services rendered on appeal, together with foreclosure of statutory liveryman’s lien upon two certain registered horses.

Appellant Huddleston comes to this court asserting error on the part of the trial court (1) in proceeding to trial in the absence of Appellant and his counsel because Appellant had not been notified of any trial setting; and (2) in holding that Appellant’s Motion to Set Aside Judgment and for New Trial was not timely filed, and in refusing to allow the filing of Appellant’s Amended Motion to Set Aside the Judgment and for New Trial. We sustain these contentions, and thereby reverse and remand the cause to the trial court for retrial.

This suit was filed by Plaintiff-Appellees in a District Court of Dallas County against Defendant-Appellant Huddleston, a resident of Bexar County. Upon being served with citation, Defendant employed Hon. Roy H. Garwood, Jr., a practicing attorney of the law firm of Gilliland, McNeel, and Garwood, in San Antonio, Texas, to represent him. Lawyer Garwood filed on January 26, 1976, a plea of privilege and an original answer (subject to the plea of privilege) in behalf of Defendant. Plaintiffs then on January 30, 1976, filed a controverting plea to the plea of privilege, and sent a copy to Mr. Garwood. On February 4,1976, Mr. Garwood died. Then about the middle of March, 1976, Hon. James G. Mur-ry, a practicing attorney in San Antonio, Texas, was contacted by the law firm in which Mr. Garwood was a partner, to employ him (Mr. Murry) to handle the case for Defendant-Appellant Huddleston. Mr. Murry was not a member of the Gilliland, McNeel, and Garwood law firm, but had his office in the Petroleum Center which was in the same area in which Mr. Garwood’s law firm was located.

Mr. Murry accepted employment to represent Defendant Huddleston, and was immediately in touch with Hon. G. Ward Beaudry, attorney for Plaintiff-Appellees, by long distance telephone, with reference to such representation and other matters. Mr. Murry and Mr. Beaudry discussed and disposed of such matters as the pending plea of privilege, written interrogatories, and other pending items of mutual interest in the case. Mr. Murry agreed to waive his client’s plea of privilege, and arranged for his client to answer certain written interrogatories and admissions which Mr. Beau-dry had propounded and served upon the Defendant.

Then, on April 2, 1976, Mr. Beaudry contacted the trial court and obtained a trial setting on the merits for Thursday, May 20, 1976. Immediately thereafter, on April 7, 1976, Mr. Beaudry wrote a letter addressed to “Mr. Roy H. Garwood, Jr., Gilliland, McNeel and Garwood, Petroleum Center, San Antonio, Texas 78209, Attention Mr. Murry,” which letter advised that the case was set for trial at 9 AM on May 20, 1976, in the 44th District Court of Dallas County. Mr. Beaudry testified that he caused this letter to be mailed by regular mail. Whether the Gilliland, McNeel, and Gar-wood law firm ever received this letter we do not know; however, Mr. Murry never received this letter and had no knowledge the case was set for trial. On April 19, 1976, Mr. Beaudry wrote another letter to Mr. Murry which was addressed directly to Mr. Murry at his own law office at “D-305 Petroleum Center” in San Antonio, in which the admissions and interrogatories were discussed, but in which no mention of the case setting was made. Mr. Murry received this letter. Then on April 21,1976, Mr. Beaudry wrote another letter addressed directly to Mr. Murry’s law office which likewise did not mention the trial setting. Mr. Murry received this letter.

Then on the day before the case went to trial, towit, on May 19, 1976, Mr. Beaudry called Mr. Murry’s office to see if he was going to be present for trial the next day, whereupon he talked to an answering service.

Mr. Murry is a lone practitioner whose office force consists of himself and one secretary, a Mrs. Gunnoe. On May 19, 1976 (the day Mr. Beaudry called and got the answering service) Mr. Murry was out of his office because he had to be in Seguin, Texas, for a court appearance. On that same morning, and after Mr. Murry had left town, his secretary became ill with a high fever and had to be taken to a hospital, and was not able to return to work until June 1, 1976. Mr. Murry’s wife usually stayed in his office and answered the telephone when no one else was there; however, at this time she was physically unable to be at the office. Therefore, there was no one at Mr. Murry’s office to answer the phone on May 19, 1976, when Mr. Beaudry tried to call. The answering service never did inform Mr. Murry of Mr. Beaudry’s attempt to call.

On May 20,1976, the trial court called the case for trial, whereupon Mr. Beaudry announced ready for the Plaintiffs. Mr. Mur-ry had no knowledge of the case setting and did not appear. The case proceeded to trial, and on May 24, 1976, the trial court signed and entered judgment in favor of Plaintiffs against Defendant Huddleston for $5793.00 plus $1500.00 attorney’s fees for the trial court plus $1000.00 attorney’s fees in event of appeal, and foreclosure of a statutory liveryman’s lien on two registered horses.

The first day Mr. Murry and his secretary were both back in Mr. Murry’s office was Tuesday, June 1,1976. It was on the morning of this last-named date that Mr. Murry received a copy of the default judgment in the mail from the Clerk of the 44th District Court of Dallas County. This was the first knowledge Mr. Murry had that the case had been set and tried.

Immediately upon receipt of this copy of judgment, Mr. Murry prepared his original motion to set aside the default judgment and for a new trial and on June 2, 1976, he mailed it certified mail, return receipt requested, to the Clerk of the trial court. This original motion was filed by the Clerk on June 4,1976. Then on June 17,1976, the trial court heard evidence on the original motion to set aside the default judgment and for a new trial in which both Mr. Beaudry and Mr. Murry appeared, after which the trial court took the matter under advisement.

The next day after the hearing, towit, on June 18, 1976, Mr. Murry prepared his amended motion to set aside default judgment and for a new trial, and mailed same certified mail, return receipt requested to the Clerk. This amended motion was received and stamped “Filed” by the Clerk on June 23, 1976; however, the trial court personally marked out the file mark with an “X,” marked same “Not authorized” and put his initials thereupon. That is to say, the trial court refused to allow the Defendant’s amended motion for new trial to be filed.

Mr. Murry was not notified of this action either by the trial court or the Clerk thereof, and since time was continuing to pass, Mr. Murry then on July 27, 1976 filed another motion reviewing the situation and requesting that the trial court file his amended motion to set aside default judgment and for a new trial nunc pro tunc as of June 23, 1976.

Thereafter, on August 11, 1976, the trial court signed and entered an “Order Overruling Motion to Set Aside Judgment” in which he recited in effect that Defendant’s original motion for new trial was filed eleven days after the date of judgment and was therefore filed too late. In this connection the trial court made the following recitations:

“The Court failed to determine that Defendant’s motion was filed more than ten days from entry of judgment. Neither party called this to the attention of the Court and no allegation or proof was offered or made to establish that said motion was filed within time, if such be a fact.
“The Court is of the opinion its judgment of May 24, 1976, became final thirty days thereafter and this court is without jurisdiction to either sustain or overrule the ‘Motion of Defendant to Set Aside Judgment and For a New Trial.’
“Defendant’s said motion not having been filed within time, his attempted amended motion is not eligible for filing.
“However, for the record, it is ordered that the ‘Motion of Defendant to Set Aside Judgment and For a New Trial’ is hereby overruled.”

It is from this order of August 11, 1976, that Defendant appeals.

We revert to Appellant’s first point, to-wit: that the trial court erred in proceeding to trial in the absence of Defendant-Appellant and his counsel because Defendant-Appellant had not been notified of any trial setting. We sustain this contention.

In the case at bar, Plaintiff’s counsel wrote a letter on April 7,1976, addressed to the Defendant’s lawyer whom he knew to be deceased, to the address of the law firm of the deceased lawyer, to the attention of Mr. Murry who did not office at the address to which the letter was sent. This letter was sent by regular mail! The Defendant’s lawyer, Mr. Murry, never received the letter nor knew of the setting until June 1, 1977, eight days after the default judgment had been entered. Nor did he receive any information from his answering service of Plaintiffs’ counsel’s attempt to telephone him on May 19, 1976, the day before the trial.

In our opinion, this case is controlled by Ivy v. Carrell (Tex.1966) 407 S.W.2d 212, wherein the rule concerning the setting aside of default judgments has been enunciated by our Supreme Court in the following language:

“The correct rule, applicable alike to motions for new trial which seek to set aside default judgments entered on failure of a defendant to file an answer and those entered on failure to appear for trial, is stated in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939), as follows:
‘A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.’ ”

Also see Dorsey v. Aguirre (Waco CA 1977) 552 S.W.2d 576, NRE.

In the case at bar, the Defendant’s failure to answer was not intentional, nor was it the result of conscious indifference on his part. He simply never got the word, and knew nothing about the trial setting. Without going into detail, Defendant set up a meritorious defense in accordance with the requirements of Craddock and Ivy, and there is nothing in the record to show that a new trial will work an injury to Plaintiffs. Plaintiffs assert the Defendant had the burden to show no injury to Plaintiffs; however, these are matters peculiarly within Plaintiffs’ knowledge, and the record does not reflect that Plaintiffs will suffer any injury by a new trial being granted. Appellant’s first point is sustained.

Appellant’s second point asserts the trial court erred in holding that Appellant’s original motion to set aside judgment and for new trial was not timely filed, and in refusing to allow the filing of Appellant’s amended motion for new trial. We sustain this contention.

The default judgment was entered May 24, 1976; the Defendant-Appellant first learned of the default judgment on June 1, 1976; Defendant-Appellant mailed by certified mail the original motion for new trial to the Clerk of the trial court on June 2, 1976; said original motion was filed June 4, 1976. The original motion for new trial was timely filed under Rule 245 wherein it provides that “the provisions of Rule 329b governing motions for new trial and finality of judgments shall operate from the time of receipt of notice of rendition of the judgment; provided the original motion for new trial shall in any event be filed within 90 days from the rendition of judgment.”

Here, the Defendant filed the original motion three (3) days after he received notice of rendition of the judgment; therefore, said original motion was timely filed. Moreover, the original motion for new trial was timely under Rule 5 because it was mailed by Defendant on June 2,1976, which was only nine (9) days after judgment, and was received by the Clerk two days thereafter.

Since Defendant’s original motion for new trial was timely filed, the trial court erred in prohibiting the filing of Defendant's amended motion for new trial on June 23, 1976, since this attempted filing was only nineteen (19) days after the file date of Defendant’s original motion for new trial. See Rule 329b. The original motion having been filed on time, timely filing of the amended motion by Defendant was a matter of right, and the trial court abused its discretion in denying Defendant the right to file such amended motion for new trial, in view of the fact that the trial court had not (as of the time of the attempted filing of the amended motion) acted upon the original motion for new trial. See Rule 329b; Consolidated Furniture Co. v. Kelly (Tex.1963) 366 S.W.2d 922. Appellant’s second point is sustained.

For the reasons hereinabove stated, we reverse the trial court’s judgment and order of August 11, 1976, wherein the trial court denied Defendant-Appellant the right to file the amended motion for new trial, and remand the cause for trial on the merits.

REVERSED AND REMANDED.