author: McKAY, Justice.

text:
    The FROST NATIONAL BANK, a corporation, Appellant, v. NICHOLAS AND BARRERA, a Professional Corporation, Appellee.
    No. 909.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 26, 1976.
    Rehearing Denied April 1,1976.

      John R. Locke, Jr., Groce, Locke & Heb-don, San Antonio, for appellant.
    Fred Clark, San Antonio, for appellee.
   McKAY, Justice.

This suit was brought by appellee, Nicholas and Barrera, a Professional Corporation, to recover a sum of money embezzled by a public accountant employed by appellee through use of a checking account at The Frost National Bank of San Antonio, appellant.

Appellee sought recovery both on a contractual theory and on a negligence theory:

(1) that appellant breached the depository contract between it and appellee by failing to pay the amounts of checks drawn by appellee only to the named payee of such checks, and that as a matter of law a bank must pay a check only to the payee named therein or to his order; and (2) that appellant was negligent in failing to ascertain the identity and existence of Depository Account No. 607, the designated payee on the checks in question, and in failing to obtain a proper endorsement on the checks. Appellant’s pleading on which it went to trial consists of a general denial and a plea that any loss or damage which may have been sustained by appellee was caused by the negligence of appellee.

This case has a previous appellate history, and in the first trial both parties filed motions for summary judgment. The trial court denied appellant’s motion for summary judgment, granted appellee’s motion, and decreed that appellee recover from appellant the sum of $22,288.93, the aggregate sum of six checks identified as Exhibits 2, 3, 4, 5, 6 and 7.

Upon appeal the San Antonio Court of Civil Appeals affirmed the trial court’s judgment as to the check identified as Exhibit No. 2, which was in the amount ,of $2,141.20, and reversed and remanded the trial court’s judgment for a new trial as to the checks identified as Exhibits 3, 4, 5, 6 and 7, which totaled $20,147.73. That opinion is found in 500 S.W.2d 906 (1973, ref’d, n. r. e.).

Upon remand the case was tried before a jury and the trial court charged the jury on the negligence of the appellant as well as appellee. The jury answered that (1) ap-pellee failed to sustain its burden of proving appellant negligent in crediting the subject checks to depository account without obtaining endorsements on said checks; (3) that appellant was negligent in not determining the existence or nonexistence of Depository Account No. 607 with regard to the checks; (4) that such negligence was a proximate cause of appellee’s loss; (5) that appellee’s officers were negligent in signing checks payable to “Depository Account Number 607” without investigating and ascertaining the nature of the account and who had control of it; (6) that such negligence was a proximate cause of appellee’s loss; (7) that appellant failed to sustain its burden of proving that appellee’s employee, Mary Louise Magnon, was negligent in depositing the five checks in question to “Depository Account” without first ascertaining the identity of the party in whose name said account was listed; (9) that Mary Louise Magnon was negligent in failing to call the attention of the officers of appellee to changes made by Patrick M. Penker in the procedure for paying Federal withholding taxes and F.I.C.A. taxes; and (10) that such negligence was a proximate cause of appellee’s loss.

Appellee moved for judgment requesting the court to disregard the jury’s answers to issues 5, 6, 9 and 10 on the ground that as a matter of law such findings do not constitute a defense to appellee’s cause of action and that such findings have been rendered immaterial because of the jury’s answer to issues 3 and 4. Appellant filed a motion for judgment on the verdict and also a motion for judgment non obstante veredicto on the ground that appellee’s loss was the proximate cause of its own negligence; that appellee, under the undisputed evidence was contributorily negligent as a matter of law; that the checks were so deposited at the express request of appellee and it should be barred from asserting that appellant was negligent in so doing; and that appellee, under the undisputed evidence, assumed the risk that a loss would occur by reason of the wrongful act of its agent.

The trial court granted appellee’s motion for judgment, disregarded issue 10 and found that issues 5 and 6 did not bar recovery by appellee. Appellant’s motion for judgment on the verdict and for non ob-stante veredicto was denied, and judgment was rendered for appellee for $20,147.73 plus interest of $4,661.13, a total of $24,-808.86.

Although the facts were fully set out in the opinion of the court in the previous appeal we deem it necessary to restate them here. Appellee is a professional corporation engaged in the practice of law. Around February, 1971, appellee employed a public accountant by the name of Patrick M. Penker. Penker was employed originally to computerize the accounts receivable, but soon assumed the general accounting responsibilities of the firm. It was a part of his duties to calculate the monthly payments of withholding taxes, which were to be paid to the Internal Revenue Service, and generally to handle the accounting work in regard thereto.

Prior to Penker’s employment, the withholding taxes had been handled by Mrs. Mary Louise Magnon, a long-time employee of appellee. It was her practice, after computing the amounts which should be withheld, to prepare a check drawn on the firm’s bank account at the Frost National Bank in that amount, and to make the check payable to the order of the Frost National Bank. She would then take this check, along with a Federal Tax Deposit Card furnished by the Internal Revenue Service, to a special window in the back part of the Frost Bank. The check and card would be delivered to the teller at the special window, who would stamp a validation on the detachable small part of the card and then return it to Mrs. Magnon as her receipt for the payment of the withholding taxes. The Frost Bank, as are all national banks, is a designated depository for funds due the Internal Revenue Service. The bank routinely receives from its customers deposits made for the payment of withholding taxes, and they are customarily handled just as Mrs. Magnon handled these before Penker’s employment.

Penker changed this system. Shortly after his employment by appellee, Penker went to the Frost National Bank and opened a personal checking account under the name of “Depository Account”. The signature card on this account indicates that it was opened on March 30, 1971, with an initial deposit of $10. The account bears the customer account number of 038-342, and the only person authorized to draw checks on such account was Patrick M. Penker. Penker thereafter wrote and delivered to Mrs. Magnon a letter setting forth the procedure she was to follow thereafter in making payment of withholding taxes. Attached to the letter was a prototype which she was to use as a form in preparing the monthly checks for withholding taxes. These checks were to be made payable to the order of “Depository Account No. 607”. He also delivered to her the preprinted deposit slips for his depository account which he had opened at the Frost National Bank, which showed the account number of 038-342 and had printed on them “Depository Account”, but the number 607 does not appear thereon. Mrs. Magnon was instructed that instead of making the checks payable to the Frost National Bank as Mrs. Magnon had done in the past, she was to make them payable to Depository Account No. 607. After having the checks signed by Mr. Nicholas or Mr. Barrera she was to take them to a regular teller at the bank, rather than to the special teller at the back part of the bank, and was to deposit them to the depository account, using the preprinted deposit slips. At Penker’s request, Mrs. Magnon gave him all of the federal tax deposit cards which had been furnished by the Internal Revenue Service, Penker having told her that he would take care of them. These cards were never sent to the Internal Revenue Service, and Penker actually destroyed them.

Exhibits Nos. 3 through 7 were all deposited to the depository account, and thereafter Penker withdrew these funds, thereby misappropriating them to his own use. The fraud was discovered in early September, 1971, and no further checks were deposited after the check of July 30, 1971. All five checks involved here were payable to the order of “Depository Account No. 607,” and each deposit slip bore the printed customer account number “038-342”.

Appellant’s points complain that the trial court erred (1) in failing to sustain appellant’s motion for judgment non obstante because the evidence was insufficient to sustain a finding that appellee’s loss was a proximate result of any negligence on the part of appellant, and (2) because under the undisputed evidence appellant breached no contractual duty to appellee; (3) in failing to disregard the jury findings to issues 3 and 4 because there was no evidence to support such findings; (4) in failing to enter judgment for appellant on the verdict because the only negligence found by the jury against appellant was not, as a matter of law, the proximate cause of appellee’s loss; (5) in failing to render judgment for appellant on the verdict because the contributory negligence of appellee is a bar to its recovery; and (6) in disregarding the jury’s findings on issue 10 because such finding is supported by the evidence.

Rule 301, T.R.C.P., provides that a trial court may render judgment non ob-stante veredicto if a directed verdict would have been proper, and such court may disregard any special issue jury finding that has no support in the evidence. The judgment rendered by the trial court can be upheld if the issues disregarded had no support in the evidence, that is, there was no evidence, or, if they did have support in the evidence, they were immaterial. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); First Am. Life Ins. Co. v. Slaughter, 400 S.W.2d 590 (Tex.Civ. App. — Houston, 1966, writ ref’d, n. r. e.). The jury’s findings may not be disregarded if there is any evidence of probative force, together with such inferences arising therefrom, which will reasonably support such findings. Pool v. Dickson, 512 S.W.2d 68 (Tex.Civ.App. — Tyler, 1974, no writ). In passing upon the question of the trial court disregarding jury findings, we must view the evidence in the most favorable light in support of the verdict. Pool v. Dickson, supra.

It is undisputed that an officer of appellee, either Nicholas or Barrera, signed each of the checks here involved after they had been typed with the amount in words and figures and made payable to “Depository Account No. (or # or Number) 607”. It is also undisputed that Mary Louise Mag-non knew of the change in procedure for deposit of funds for the purpose of paying withholding and F.I.C.A. taxes at appellant bank, and that she failed to inform appel-lee’s officers. The record does not reveal that either Nicholas or Barrera made any inquiry or otherwise investigated or attempted to ascertain the nature of Depository Account No. 607. Under the record there is some evidence of probative value to support the findings of the jury to issues 5 and 6. Therefore, for the trial court to have properly disregarded issues 5 and 6, such issues must be shown to have been immaterial to the proper disposition of the case, and the jury’s answers to issues 3 and 4 must be, as a matter of law, and regardless of other issues, determinative of the judgment to be rendered. We do not agree that issues 5 and 6 are immaterial.

The relationship between banker and depositor is contractual and on general demand deposits is one of debtor and creditor. 8 Tex.Jur.2d Banks, Secs. 234, 236. The contract of a bank with a depositor is to pay such money deposited on demand made at its banking house, in such sums, at such times, and to such persons as the depositor may direct. 9 C.J.S. Banks and Banking § 330, p. 673; Stone Fort Nat. Bank v. Forbess, 126 Tex. 568, 91 S.W.2d 674 (1936).

“In the absence of an agreement to the contrary, under the implied contract between a bank and its depositor, the bank is under a duty to honor its depositor’s checks or orders, where it has sufficient funds belonging to the depositor when the checks are presented, regardless of the purpose for which the check is given.”

9 C.J.S. Banks and Banking § 342, p. 684.

The bank complied with the order of its depositor by depositing to the account of the payee the amount of the checks. No endorsement was required since the transaction was between the bank and two accounts of the bank. The number “607” apparently had no particular significance. When asked why he instructed Mary Louise Magnon to make out the checks to “Depository Account No. 607”, Penker answered that it was to be a guise to indicate that the money was intended to go for taxes due the Federal government. He said it'was not a number which was required to be put on the check, but that it was used to give “confidence that ‘yes’, it is going to the right place,” and to lend credence to the whole scheme. Nicholas and Barrera, acting for the corporation, directed the bank to pay the funds in the mistaken belief they were paying the corporation’s withholding and F.I.C.A. taxes. They relied on their employees Magnon and Penker, but there seems to be no question they intended for the bank to pay the funds into the account where they were paid.

Appellee relies almost entirely upon the premise that since the check was made payable to the order of “Depository Account No. 607”, the bank had a duty to determine whether there was such an account; and, having failed to do so, the bank was negligent, and such negligence was the proximate cause of its loss. The witness Krause, a Senior Vice President of appellant bank, testified the number 607 had no meaning to the bank, and that such a number usually means that it is some notation for the benefit of the customer. The witness Friese, a teller at Frost Bank for 29 years, testified that she assumed that the number meant something to the customer and that she would not confuse No. 607 with a checking account number. The witness Duncan, who had been teller, cashier and then Senior Vice President of Alamo National Bank for more than 30 years, testified that it was the custom and practice in the banking industry for a teller to accept checks such as those involved here for deposit when accompanied by deposit slips.

In 10 Am.Jur.2d, Banks, Sec. 556, p. 528, is found this language:

“It is a common practice for drawers of checks to make memoranda or notations upon checks; these are usually for their own convenience or for the purpose of serving as a receipt when indorsed by the payees of the checks and returned to the drawers by the bank. The drawee bank, however/ is not bound to take notice of such memoranda and figures upon the margin of a check.” (See 9 C.J.S. Banks and Banking § 332 c, p. 677.)

In First Nat. Bank of Duluth v. School District No. 15 of Carlton County, 173 Minn. 383, 217 N.W. 366, 56 A.L.R. 1369 (1928) on the face of a check was a notation that it was “For Warrant 157, 91 and int. School Dist. 15.” When it was deposited in the bank, that bank held these warrants. The court held that the notation on the check did not bind the bank or affect its rights, and that “Such notations on a check, as between drawer and drawee, operate only to serve the convenience of the drawer.”

We quote from 56 A.L.R. 1373:

“The cases generally hold that memoran-da on checks descriptive of what the funds are, or the source from which they come, do not act as a notification to a bank of any facts which it is bound to investigate.”

Generally, memoranda on a check describing the funds and the source from which they come, or the payment intended by the check, do not act as notification to a bank or other person receiving, paying or cashing such check, of any facts which it is bound to investigate. 11 Am.Jur.2d, Bills and Notes, Sec. 456, p. 496; Spinazzola v. Manufacturers Nat. Bank, 28 Mich.App. 207, 184 N.W.2d 265 (1970).

The old case of Eyrich v. Capital State Bank, 67 Miss. 60, 6 So. 615 (1889), is quoted in 56 A.L.R. 1373-4:

“. . . Banks are not trustees of their depositors in that (sic) sense that they must see to the application of funds drawn by those entitled to check against them. In the multiplicity of business transactions innumerable instances must occur in which circumstances known to the bank, or some of its officers, would suggest doubts as to the destination of funds checked against, which circumstances, if investigated would disclose to what purposes the funds were being applied. But it has never been suggested that the bank may properly, much less that it ought as a duty to the beneficiary of the fund, suspend its ordinary course of business that it may satisfy itself as to the right of him authorized to draw out the fund to so apply it. Where there is not a duty to act there can be no responsibility for failing to act; and it must be held that banks discharge their duty to depositors when, in good faith, they disburse the funds held by them in compliance with the direction of him who has the right to direct such disbursement. There ought to be either a fraudulent purpose on the part of the bank or actual knowledge of a fraudulent design by another shown, before liability can be fixed on it for paying out funds on checks signed by him authorized to draw.”

The Supreme Court of the United States in State National Bank v. Dodge, 124 U.S. 333, 8 S.Ct. 521, 31 L.Ed. 485, 56 A.L.R. 1374 (1888), said:

“No bank is bound to take notice of mem-oranda and figures upon the margin of a check, which a depositor places there merely for his own convenience, to preserve information for his own benefit; and in such case, the memoranda and figures are not a notice to the bank that the particular check is to be paid only from a particular fund.”

The court held in State Bank v. Reilly, 124 Ill. 464, 14 N.E. 657, 56 A.L.R. 1375 (1888).

“. . . It is well known (that) . the practice among banks, paying checks of their depositors, is not to observe mem-oranda upon such checks, but the custom is to regard them as having been made for the convenience of the drawers, and the practice in that regard, it is thought, has the sanction of law in its support.”

And the court in Duckett v. National Mechanics’ Bank, 86 Md. 400, 38 A. 983, 56 A.L.R. 1375 (1897), said that, “a memorandum on the check in question imposed no duty on the bank, and operated only to subserve the convenience of the drawer of the check.”

“The addition of some designation to the name of the depositor does not affect the rights and obligations created by the deposit.” Dektor v. Overbrook Nat. Bank, 10 F.Supp. 894 (E.D.Pa.1934).

In 2 Anderson, Uniform Commercial Code, 2d Ed., Sec. 3-117:6, p. 721 is this language:

“When a payee is named in the instrument and following his name there are added words of description or identity which do not describe him as (1) the agent or officer for a specified person, or (2) any other fiduciary for a specified person or purpose, the words of description are ignored. The instrument is regarded as payable to the payee unconditionally and such additional words of description have no effect with respect to third persons.”

Appellee insists that the rule applicable to this case is that a bank must pay a check only to the payee named or to his order, and that the bank, at its peril, must determine the identity and the existence of such payee and failing to do so or being unable to do so should refuse payment, citing Guaranty State Bank & Trust Co. v. Lively, 108 Tex. 393, 194 S.W. 937 (1917); Liberty State Bank v. Guardian Savings & Loan Ass’n, 127 Tex. 311, 94 S.W.2d 133 (Tex.Com.App.1936, opinion adopted); and Greenville Avenue State Bank v. Lang, 421 S.W.2d 748 (Tex.Civ.App.—Dallas, 1967, no writ). We have no argument with the above rule, but in our opinion these cases are not in point inasmuch as they were concerned with forged indorsements. We believe the fact situation here distinguishes the instant case from those cited. The payee here was an account in the drawee bank and not a fictitious person who presented the check to the bank for payment, and the check here did not require indorsement if the funds were deposited to the intended payee.

In Townsend, Oldham & Co. v. Continental State Bank of Gorman, 178 S.W. 564 (Tex.Civ.App.—Ft. Worth, 1915, no writ), an exception is made to the above rule. We quote at page 566:

“. . ■ . The rule that a bank at its peril pays a check drawn upon it to any one save the actual payee, or to his order, and that, if it mistakes the payee’s identity, it is responsible for the payment to one not the payee named, is subject to the exception that if the payment is made to the one actually intended by the drawer as the payee, the payment is good.” (Emphasis added.)

The drawer is not harmed if the action of the drawee bank with respect to a check carries out (or does not interfere with the accomplishment of) the drawer’s purpose with respect to the check. Gordon v. State Street Bank & Trust Co., 361 Mass. 258, 280 N.E.2d 152 (1972); Nida v. Michael, 34 Mich.App. 290, 191 N.W.2d 151 (1971).

Appellee argues that even if the drawer of a check is negligent a depositor is not precluded from recovery if it is established that the bank failed to use ordinary care, citing Exchange Bank & Trust Co. v. Kidwell Construction Co., 472 S.W.2d 117 (Tex.1971), and Oak Cliff Bank & Trust Co. v. Aetna Casualty & Surety Co., 436 S.W.2d 165 (Tex.Civ.App. — Dallas, 1968, no writ). These cases are check forgery cases and in our opinion are not in point here. Sec. 4.406, Tex.Bus. & Comm.Code, deals with the customer’s duty to discover and report unauthorized signatures or alterations, and is concerned with failure of the customer to use reasonable care in examining his statement and cancelled checks and whether such negligence on the part of the customer precludes him from asserting a claim against the bank. What the bank did in the case at bar in complying with the depositor’s order was done according to reasonable standards in the banking field; and, therefore, we conclude there was no lack of ordinary care on the part of the bank. The bank performed its duty to appellee according to reasonable standards, and, therefore, owed no further duty to appellee.

We are cognizant of the holding in Southwest Nat. Bank v. Underwood, 120 Tex. 83, 36 S.W.2d 141 (1931), and in Greenville Nat. Exchange Bank v. Nussbaum, 154 S.W.2d 672 (Tex.Civ.App. — Waco, 1941, writ ref’d w. o. m.), that if the bank, before paying forged checks, could have by reasonable care detected the forgeries, then it is liable for paying such forged checks even though the depositor may be negligent. These cases hold that a bank is bound to know the signature of its depositors, and it cannot charge the amount of forged checks paid by it to the depositor’s account unless the depositor’s negligence is shown to have been the proximate cause of the bank paying such forged checks. They also hold that the depositor’s negligence is immaterial unless it is of a kind that directly and proximately affects the conduct of the bank in the performance of its duties.

Appellee has not cited us a case, nor have we found one, which holds that the bank had the same duty and responsibility to investigate and discover whether there was a “Depository Account No. 607” as it had to prevent the payment of forged checks. We believe the bank discharged its duty by complying with the request of its customer to deposit the checks payable to “Depository Account No. 607” into “Depository Account”, and the bank was not bound to know whether there was such an account as “Depository Account No. 607” before accepting such deposits.

If it can be said that the bank had a duty to investigate and determine whether there was an account named “Depository Account No. 607” before accepting appel-lee’s deposits, then we are of the opinion that the trial court erred in disregarding issues 5 and 6 by which the jury found appellee was negligent in failing to investigate and determine the nature of the account and who had control of it. The contributory negligence of appellee would offset the negligence of the appellant unless the bank was duty bound to do such investigating on its own before accepting such deposits. We have found no authority which required the bank to do so as a contractual duty where the deposit was made to the account intended by drawer. However, whatever violation of duty the bank may have committed in failing to use ordinary care as found by the jury in issues 3 and 4 was offset by the failure of appellee to use ordinary care as found in issues 5 and 6. It is our view that issues 5 and 6 have support in the evidence and are not immaterial to the judgment to be rendered in the case; and, therefore, the trial court erred in disregarding them.

Appellee had the burden of proving by a preponderance of the evidence not only that appellant was negligent but that such negligence was a proximate cause of appel-lee’s loss. Under the record presented here, to conclude that a causal connection has been shown between any negligence of appellant and appellee’s injury, it must be shown as the court charged the jury, that “the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.” In our opinion proximate cause has not been shown. Clark v. Wag-goner, 452 S.W.2d 437 (Tex.1970).

The record is silent as to whether appellant did or did not determine the existence of Depository Account No. 607. Issue 3 assumes such was not done. . Nobody knows, as far as the record is concerned, whether appellant made such determination. It was not shown what teller handled the deposits although the record shows Mrs. Friese customarily was the teller used by Mary Louise Magnon.

We can only speculate as to the result or the consequences if appellant had investigated and determined the nonexistence of Depository Account No. 607. If such determination had been made it may have convinced the employees or officers of appellant that appellee intended the deposits to have been made in Depository Account as was done. But we do not believe under this record that such failure of appellant, if any there was, was a proximate cause of appellee’s loss.

Appellees put their trust and confidence in Penker, turned over their .books and records to him, and instructed Mrs. Magnon to do whatever Penker told her. No supervision or control was exercised over Penker. Appellee’s faith and trust was misplaced, and Penker devised a scheme to defraud appellee. There seems to be no question but that Penker is liable to appellee for its loss. Under the record, however, we are of the opinion that appellant is not responsible for such loss.

We sustain appellant’s points two, four and five.

The judgment of the trial court is reversed, and judgment is here rendered for appellant.

      . “QUESTION NO. 1

      “Do you find from a preponderance of the evidence that the defendant, Frost National Bank, was negligent in crediting the subject checks (Plaintiffs Exhibits Number 3 through 7) to depository account (Number
      038-342) without obtaining indorsements on said checks?
      “Answer ‘We do’ or ‘We do not.’
      “We, the jury, answer: ‘We do not.’
      * * * * V *

        “QUESTION NO. 3

        “Do you find from a preponderance of the evidence that the defendant, Frost National Bank, was negligent in not determining the existence or non-existence of depository account number 607 with regard to the checks (Plaintiffs Exhibits Number 3 through 7)?
      “Answer ‘We do’ or ‘We do not.’
      “We, the jury, answer: ‘We do.’
      “If you have answered Question No. 3 ‘We do,’ then answer Question No. 4; otherwise, do not answer Question No. 4.

        “QUESTION NO. 4

      “Do you find from a preponderance of the evidence that such negligence (inquired about in Question No. 3) was a proximate cause of the loss incurred by the plaintiff?
      “Answer ‘We do’ or ‘We do not.’
      “We; the jury, answer: ‘We do.’

        “QUESTION NO. 5

      “Do you find from a preponderance of the evidence that the officers of the plaintiff were negligent in signing checks (Plaintiff’s Exhibits Number 3 through 7) payable to ‘Depository Account Number 607’ without investigating and ascertaining the nature of such account and who had control of it?
      “Answer ‘We do’ or ‘We do not.’
      “We, the jury answer: ‘We do.’
      “If you have answered Question No. 5 ‘We dó,’ then answer Question No. 6; otherwise, do not answer Question No. 6.

        “QUESTION NO. 6

      “Do you find from a preponderance of the evidence that such negligence (inquired about in Question No. 5) was a proximate cause of the loss incurred by the plaintiff?
      “Answer ‘We do’ or ‘We do not.’ “We, the jury, answer: ‘We do.’

        “QUESTION NO. 7

      “Do you find from a preponderance of the evidence that Mary Louise Magnon was negligent in depositing Plaintiffs Exhibits Number 3 through 7 to ‘Depository Account’ (Number 038-342) without first ascertaining the identity of the party in whose name said account was listed?
      “Answer ‘We do’ or ‘We do not.’
      “We, the jury, answer: ‘We do not.’
      ******

        “QUESTION NO. 9

      “Do you find from a preponderance of the evidence that Mary Louise Magnon was negligent in failing to call the attention of the officers of the plaintiff to the changes made by Patrick M. Penker in the procedure for paying Federal Withholding Taxes and F.I.C.A. taxes?
      “Answer ‘We do’ or ‘We do not.’
      “We, the jury, answer: ‘We do.’
      “If you have answered Question No. 9 ‘We do,’ then answer Question No. 10; otherwise, do not answer Question No. 10.

        “QUESTION NO. 10

      “Do you find from a preponderance of the evidence that such negligence (inquired about in Question No. 9) was a proximate-cause of the loss incurred by the plaintiff?
      “Answer ‘we do’ or ‘We do not.’
      “We, the jury, answer: ‘We do.’ ”

      . Rule 301. Judgments
      The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence. Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law. Judgment may, in a proper case, be given for or against one or more of several plaintiffs, and for or against one or more of several defendants or intervenors.

      . Texas Business and Commerce Code Sec. 3.117. Instruments Payable With . Words of Description
      An instrument made payable to a named person with the addition of words describing him
      (1) as agent or officer of a specified person is payable to his principal but the agent or officer may act as if he were the holder;
      (2) as any other fiduciary for a specified person or purpose is payable to the payee and may be negotiated, discharged or enforced by him;
      (3) in any other manner is payable to the payee unconditionally and the additional words are without effect on subsequent parties. (Emphasis added.)


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Odo J. RIEDEL et ux., Appellants, v. Reagan HOUSTON, III, Chairman of the Texas Highway Commission, et al., Appellees.
    No. 5506.
    Court of Civil Appeals of Texas, Waco.
    Feb. 26, 1976.
    Rehearing Denied April 8, 1976.

      Dobbins, Howard & Harris, San Antonio, for appellants.
    John L. Hill, Joe D. Jarrard, Jr., Austin, for appellees.
   OPINION

McDONALD, Chief Justice.

The question to be decided in this appeal is whether the action was properly dismissed as being a suit against the State of Texas without legislative consent.

Plaintiffs Riedel instituted suit against Reagan Houston, III, other members and the Engineer of the Texas Highway Commission, in their capacities as such; and the members of the Comal County Commissioners’ Court, in their capacities as such, to enjoin defendants from entering plaintiffs’ lands, taking plaintiffs’ lands without adequate compensation being made therefor, or otherwise disturbing plaintiffs’ use and possession of said lands without first instituting eminent domain proceedings.

Plaintiffs alleged they were the owners of 244.28 acres in Comal County; which includes a 6.331 acre described tract; that on April 19, 1971 plaintiffs conveyed such 6.331 acre tract to Comal County; (that correction deed was executed on June 28, 1972 retroactive to April 19, 1971); that such deed whs conditionally delivered to Comal County, and contemporaneously an agreement was executed by the Commissioners’ Court of Comal County acknowledging that execution and delivery of such deed by plaintiffs was conditioned upon the State of Texas programming the construction of an extension of FM Road 3009 to the Natural Bridge Cavern Road in Comal County and making funds available for such construction prior to April 1, 1973, which agreement further provided if the State of Texas failed to program such construction and make funds available for same prior to April 1, 1973, then such deed would automatically become null and void and would be returned to plaintiffs.

Plaintiffs alleged such deed was a deed of gift, there being no consideration therefor; but that Comal County paid plaintiffs $6,500. in damages (being for fencing, two gates, a cattle underpass and a water well).

Plaintiffs alleged the State of Texas failed to program construction of the road and make funds available therefor prior to April 1, 1973, and on February 19, 1974 plaintiffs gave written notice to Comal County making demand for return of the deed conditionally delivered; that defendants refused to return the deed and threatened to enter upon and appropriate the land without compensation being made therefor.

The Comal County Commissioners filed plea in bar that the property had been conveyed to the State of Texas; the trial court sustained such and decreed plaintiffs take nothing as to the Comal County Commissioners; and there is no complaint of such action.

The State Highway Commission defendants filed plea to the jurisdiction asserting plaintiffs’ suit is against the State which cannot be maintained without consent of the Legislature, which plaintiffs do not have, for which reason the court is without jurisdiction to hear the cause.

The trial court delayed action on such plea to the jurisdiction, proceeded to hear evidence, and at the conclusion of the evidence sustained defendants’ plea to the jurisdiction and dismissed plaintiffs’ cause for want of jurisdiction.

Plaintiffs appeal on 2 points contending:

1) The trial court erred in dismissing plaintiffs’ suit for lack of jurisdiction.
2) The trial court erred in not granting plaintiffs’ application for injunction.

In April 1971, plaintiffs executed a warranty deed conveying 6.09 acres to Comal County. Contemporaneously with the execution of the deed, an agreement was executed by plaintiffs and the Commissioners’ Court of Comal County recognizing the land was being conveyed for highway right-of-way purposes, and that deed was being delivered upon the condition the proposed extension of Farm to Market Road 3009 from Interstate Highway 35 to the Natural Bridge Cavern Road be funded by the State of Texas prior to April 1,1973. The agreement further provided if the proposed improvements were not funded by that date the deed shall automatically become null and void and would be returned to plaintiffs. No consideration was paid to plaintiffs for the conveyance, however the county did pay plaintiffs “$6,500. in lieu of the 4,297.68 feet of fencing along the right-of-way property line, 2 gates, cattle underpass, water well, and other damages”, which sum plaintiffs agreed to refund to Comal County if the construction was not funded. The proposed route was slightly changed (a matter of a few feet) by agreement of the parties, and a correction deed (in substitution of the original deed) was executed by plaintiffs conveying the 6.331 acre tract.

The State of Texas failed to fund the highway improvements by April 1, 1973, and on February 19, 1974, plaintiffs made demand for return of their deed, forwarding a check to the County for $6,500. in reimbursement of the money paid by the County as damages to the remainder. Co-mal County refused to accept the check and refused to return the deed to plaintiffs. Plaintiffs attended a meeting of the Comal County Commissioners’ Court in April 1974, at which the Resident Engineer of the Texas Highway Department was present and heard plaintiff offer to return the $6,500. and make demand for the deed again.

The highway improvements were not funded until April 4, 1974. Plaintiffs’ deed was never returned, but instead the Comal County Commissioners on August 13, 1974, deeded the property to the State of Texas.

The Highway Department has come upon the land, unloaded a caterpillar, and performed work in initiation of construction.

Succinctly stated, plaintiffs on April 19, 1971, deeded 6.331 acres to Comal County (which was securing right-of-way for a road for the State). Such deed was without consideration, and was delivered on the express contractual condition that the State fund the road before April 1, 1973; otherwise the deed was void and was to be returned to plaintiffs. The road was not funded before April 1, 1973 (and not until April 4, 1974); plaintiffs demanded return of their deed; were refused; the County conveyed the property to the State in August 1974; and Highway Department personnel have come on the land to construct the road.

This is not a suit for the purpose of controlling lawful State action, nor a suit against the State, but is instead a suit against officials of the State to enjoin them from making a wrongful appropriation of plaintiffs’ land without just compensation.

Our disposition is governed by State v. Lain, S.Ct., 162 Tex. 549, 349 S.W.2d 579. Such case holds:

“One who takes possession of anothers land without legal right is no less a trespasser because he is a state official or employee, and the owner should not be required to obtain legislative consent to institute a suit to oust him simply because he asserts a good faith but overzealous claim that title or right of possession is in the state and that he is acting for and on behalf of the state * * *.
“When in this state the sovereign is made a party defendant to a suit for land, without legislative consent, its plea to the jurisdiction of the court based on sovereign immunity should be sustained in limine. But * * * when officials of the state are the only defendants, or the only remaining defendants, and they file a plea to the jurisdiction based on sovereign immunity, it is the duty of the court to hear evidence on the issue of title and right of possession and to delay action on the plea until the evidence is in. If the plaintiff fails to establish his title and right of possession, a take-nothing judgment should be entered against him * * *. If the evidence establishes superior title and right of possession in the sovereign, the officials are rightfully in possession of the sovereign’s land as agents of the sovereign and their plea to the jurisdiction based on sovereign immunity should be sustained. If, on the other hand, the evidence establishes superior title and right of possession in the plaintiff, possession by officials of the sovereign is wrongful and the plaintiff is entitled to relief. In that event the plea to the jurisdiction based on sovereign immunity should be overruled and appropriate relief should be awarded * * *. That those wrongfully claiming title or right of possession are sued in their official capacities * * * cannot alter the rule. To hold otherwise would exalt form over substance. * *

Under the record plaintiffs established superior title and right of possession. The trial court thus erred in sustaining plea to the jurisdiction for the ground of sovereign immunity.

Further, under the record plaintiffs are entitled to injunction as prayed for.

Appellants’ points are sustained.

The judgment is reversed, and the cause remanded; with instruction to plaintiffs to deposit with the District Clerk for Comal County the $6,500. paid plaintiffs as damages; instruction to the trial court to fix a reasonable injunction bond; and thereafter to enter temporary injunction as prayed for by plaintiffs, enjoining defendants from entering upon and appropriating plaintiffs’ 6.331 acres without making just compensation therefor.

Reversed and Remanded.


author: MOORE, Justice.

text:
    Bernard PACHTER, Appellant, v. L. L. WOODMAN, Sr., et al., Appellees.
    No. 903.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 26, 1976.
    Rehearing Denied April 8, 1976.

      Jack Ware, Uvalde, for appellant.
    M. Douglas Adkins, Geary, Brice, Barron & Stahl, Dallas, Ralph Graham, Corpus Christi, Kessler, Nichols & Harris, Uvalde, Jackson, Walker, Winstead, Cantell & Miller, Dallas, R. A. Taylor, Jr., Crystal City, for appellees.
    Charles Schwab, Jr., Schwab & Parks, Dallas, for intervenor.
   MOORE, Justice.

This is an appeal from a summary judgment. Bernard Pachter, appellant-plaintiff, filed suit against L. L. Woodman, Sr., L. L. Woodman, Jr., Gary Roberts, substitute trustee, D. Harold Byrd and Warren Wagner, Inc., to set aside a sale made under the power in a deed of trust and to cancel the trustee’s deed for alleged irregularities in the sale. A temporary restraining order, pendente lite, was issued restraining appellees from taking possession of the land. Appellees answered with a general denial. The cause came on for hearing before the trial court upon the motion of appellees, Byrd and Warren Wagner, Inc., for summary judgment pursuant to Rule 166-A, Texas Rules of Civil Procedure, alleging that under the pleadings, depositions, affidavits, exhibits and admissions, there was no genuine issue as to any material fact and that the appellees were entitled to a judgment as a matter of law. At the same time, the trial court also conducted a hearing on appellant’s application for temporary injunction pendente lite. After a hearing, the trial court granted a summary judgment in favor of appellees Byrd and Warren Wagner, Inc., and decreed that plaintiff Bernard Pachter and the interve-nors take nothing by their suit. The temporary injunction restraining appellees from taking possession of the land was dissolved and all injunctive relief sought was denied. Appellant, Bernard Pachter, duly perfected his appeal.

We affirm.

By his first point appellant urges that the court erred in granting a summary judgment in favor of appellees, D. Harold Byrd and Warren Wagner, Inc. Appellant has no point of error and does not challenge the judgment insofar as it denies him any relief against the remainder of appellees. He argues that the summary judgment was improvidently granted because the summary judgment proof shows that the trustee’s sale was void due to certain irregularities. Alternatively, he argues that the evidence created several issues of disputed fact with regard to whether the trustee’s deed was void or voidable.

The material facts giving rise to this controversy do not appear to be in dispute. The property made the basis of the suit consists of 1,071 acres of land situated in Zavala County, Texas. The land was originally owned by appellees L. L. Woodman, Sr., and L. L. Woodman, Jr., who conveyed it to Byrd Farms, Inc. As consideration for the conveyance, Byrd Farms, Inc., and D. Harold Byrd, individually, executed a note to the grantors dated December 22,1966, in the amount of $290,000.00 which was secured by a deed of trust containing the following covenant:

“TAXES: Grantor will pay all taxes and assessments that are or may become due and payable on the above described property under any law, ordinance or regulation whether made by federal, state or municipal authority, before any interest or penalty accrues thereon.”

The Deed of Trust further provided:

“6. Should GRANTOR fail or refuse to make prompt payment of the above described note as the same shall become due and payable or fail or refuse to perform any of the acts, conditions, obligations and covenants herein provided, then this DEED OF TRUST shall remain in force and effect and HOLDER shall be entitled, without being under legal obligation to do so, to exercise the option of:
* * * * * *
“(b) Declaring the whole of the note secured by this DEED OF TRUST, including principal, interest and all sums and expenses expended by HOLDER for and in behalf of GRANTOR as herein provided, immediately due and payable, with or without notice to GRANTOR and without presenting for payment any matured part of the indebtedness secured by this DEED OF TRUST, and cause trustee sale to be made.
“ * * * It is agreed that the recitals in the conveyance to the purchaser, or purchasers, shall be full and conclusive evidence of the truth of the matters therein stated, and all prerequisites to said sale shall be presumed to have been performed, and such sale and conveyance shall be conclusive against GRANTOR, his heirs and assigns.”

Appellant, Bernard D. Pachter, acquired title to the land from D. H. Byrd, successor in title from Byrd Farms, Inc., by a deed dated March 4, 1971, which recited that the conveyance was “subject to” the above mentioned deed of trust securing payment of the Woodman note. On February 24, 1974, L. L. Woodman, Sr., upon discovering that the taxes due the Uvalde Consolidated Independent School District had not been paid for the years 1972 and 1973, instructed his attorney to mail notices of default and his intent to accelerate payment of the note to appellant Pachter with copies to D. H. Byrd and to Jack L. Fox, appellant’s New York attorney. The letter also recited that Woodman elected to exercise his option to accelerate all remaining payments and that all remaining payments were then due and owing to him.

The record shows without dispute that no payments were due on the Woodman note at the time Woodman exercised his option to accelerate for nonpayment of taxes. The record further shows that the taxes amounting to approximately $2,500 per year were unpaid for the years 1972 and 1973 and that interest and penalties had accrued thereon. For the year 1972 the penalty and interest accruing on the past due taxes amounted to the sum of $128.30. For the year 1973, a penalty in the amount of $42.15 accrued but the taxes were paid for that year before any interest accrued. The past due taxes, penalty and interest were not paid until March 22, 1974, which was subsequent to the date Woodman exercised his option to accelerate.

Generally, where a deed of trust provides that the mortgagee is authorized to accelerate payment of the entire debt for nonpayment of taxes, the mortgagee may exercise his option to do so upon failure to pay the taxes and have the property sold under the deed of trust for nonpayment of taxes. Odell v. Commerce Farm Credit Co., 67 S.W.2d 626 (Tex.Civ.App. — Eastland 1933) aff’d 80 S.W.2d 295 (124 Tex.538); Bazile v. Tamborello, 442 S.W.2d 923 (Tex.Civ.App. — Houston 1969, writ ref’d n. r. e.); 55 Am.Jur.2d Mortgages sec. 382, p. 428.

Appellant’s attorney admits in his affidavit that he received Woodman’s notice of his option to accelerate the note on March 4, 1974, some eighteen days before the taxes were paid. According to his affidavit he promptly contacted Woodman’s attorney, Mr. Ralph Graham, and advised him that Pachter was negotiating a sale of the property and that the sale was eminent. He, therefore, requested a delay in the posting of the trustee’s, notice of sale. He stated that in response to the request Woodman’s attorney advised him that if such were the case, notice of sale would not be posted so long as the sale was eminent; that sometime later when it became known that the sale was no longer eminent, negotiations were commenced with regard to increasing the rate of interest on the vendor’s lien note so as to avoid the necessity of a foreclosure sale by the trustee; that the negotiations ceased when Mr. Pachter refused to pay a higher rate of interest; that in his last conversation with Mr. Graham, at a time when the only issue was the readjustment of the interest rate, Mr. Graham advised him that if and when Mr. Woodman decided to pursue the foreclosure remedy, he would be advised. As we understand his affidavit, the negotiations were broken off in the latter part of May, 1974, and there was no further contact between the parties until after the property was sold by the substitute trustee.

In the meantime the record reveals that on October 11,1974, after the resignation of the original trustee, Woodman appointed Gary Roberts as substitute trustee and directed him to proceed with the foreclosure. The substitute trustee posted notices and subsequently sold the property at public auction on November 5, 1974, to D. Harold Byrd and Warren Wagner, Inc., for a cash consideration of $198,222.

Appellant’s first contention is that the trustee’s sale was void because the notices of sale were not posted for three weeks prior to the sale in three public places in Zavala County as required by Article 3810, Vernon’s Ann.Tex.Stat. As we view the record, the proposition is without merit.

The trustee’s deed recites that notices of the sale were posted at the Zavala County Courthouse, as well as two other public places in Zavala County. The affidavit of the substitute trustee recites that on October 14,1974, he posted notices of the sale at the Zavala County Courthouse, the Fire Station and the City Hall in Crystal City, Zavala County. The trustee’s deed appears to be valid on its face.

Where the deed of trust, as here, provides that the recitals therein shall constitute prima facie proof that all prerequisites to the trustee’s sale have been complied with, the trustee’s deed is presumed to be valid. Roe v. Davis, 106 Tex. 537, 172 S.W. 708 (1915); Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 676 (Tex.1942); Jacobson v. National Western Life Insurance Company, 403 S.W.2d 528 (Tex.Civ. App. — Houston 1966, no writ). This presumption, however, is not conclusive but may be rebutted. Slaughter v. Qualls, supra.

In an effort to rebut the presumption appellant offered the affidavit of William E. Casey, Esq., who stated that on October 14, 1974, he had an occasion to post certain notices of sale in Zavala County; that he posted his notices at the Zavala County Courthouse and at the City Hall in Crystal City, and that no trustee’s notices of foreclosure of the Byrd property were posted at either of the two locations. His affidavit fails to state the time of day he posted his notices and made the observation. Appellant offered no other proof to rebut the presumption of the validity. As we view it, Casey’s affidavit is not sufficient to rebut the presumption because the affidavit states nothing more than that the trustee’s notices were not posted at those locations at the time he posted his notices. He did not undertake to state that the notices were not posted at any time on October 14, 1974. His affidavit is equivocal, to say the least, and does not exclude the possibility that the notices could have been posted later on the same day. Such evidence is insufficient to rebut the presumption of validity or to create a disputed issue of fact in that regard. Simmons v. Ratliff, 182 S.W.2d 827 (Tex.Civ.App.— Amarillo 1944, ref’d w. m.). It follows that we must presume, as a matter of law, that the prerequisites of the sale had been complied with.

Further, appellant contends that the trustee’s sale was void or voidable because Woodman’s attorney falsely represented to appellant’s attorney that in the event Woodman decided to pursue the foreclosure remedy further, appellant’s attorney would be notified of Woodman’s decision. Appellant takes the position that this amounted to a temporary waiver by Woodman of his right to sell the property under the deed of trust and appellee Byrd was estopped to rely on the sale and trustee’s deed. As we view the record, the contention is likewise without merit.

In a summary judgment proceeding where the defendant, as here, files a motion for summary judgment, the question on appeal, as well as in the trial court, is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970).

In essence appellant’s defense here is that the trustee’s deed is voidable on the ground for fraud. Here again, appellant having taken title “subject to” the deed of trust, is faced with the provisions of the trustee’s providing a presumption of validity of the trustee’s deed. In these circumstances the burden rested on appellant to overcome the presumption with summary judgment proof showing fraud as a matter of law or the existence of a genuine issue of disputed fact thereon. In order to establish fraud appellant had the burden of showing that Woodman’s alleged promise not to proceed with the foreclosure sale was false in that Woodman failed to notify him; that the promise was made for the purpose of keeping appellant from attending the sale; that appellant relied thereon and had no actual knowledge of the sale; that had Woodman notified him that he intended to proceed with the foreclosure sale, he would have been in a position to have protected his interest in the land by payment of the amount due upon Woodman’s vendor’s lien note and that he was damaged thereby. John Hancock Mut. Life Ins. Co. v. Howard, 85 S.W.2d 986 (Tex.Civ.App. — Waco 1935, writ ref’d); Navarro v. Kingsburg, 62 S.W.2d 627 (Tex.Civ.App. — San Antonio 1933, no writ).

In view of the presumption of the validity of the trustee’s deed, appellees’ summary judgment proof was sufficient to establish a prima facie case. Appellant then had the burden of offering summary judgment proof creating a fact issue on his cause of action for fraud. As we view the record appellant’s summary judgment proof fails to create such an issue. In the first place there is no proof in the record that Woodman’s attorney failed to notify appellant’s attorney that Woodman had decided to go forward with the foreclosure. While the affidavit of appellant’s attorney may be sufficient to show a promise to notify, there is nothing therein to show the promise was not fulfilled. Consequently, there is no proof that the representation was false. Secondly, there is no proof that appellant or his agents did not have actual knowledge of the trustee’s sale. Finally there is no pleading or proof that but for Woodman’s alleged false promise, appellant could and would have procured the necessary funds and paid the debt and rescued his property at the sale. Finally there is nothing to show appellant suffered any damages as a result of the alleged false promises. Consequently, the summary judgment proof fails to show that an issue of material fact existed on appellant’s cause of action for fraud. Consequently, we think the trial court properly disposed of the cause by summary judgment.

In any event, an insurmountable obstacle to appellant’s recovery is that he did not seek to do equity. He seeks to set aside the trustee’s sale to appellees Byrd and Wagner without offering to place them in status quo. In all such cases, all persons taking subject to the mortgagee must offer to redeem from the incumbrancer or at least put the purchaser in status quo. One who seeks equity must do equity. Price v. Reeves, 91 S.W.2d 862 (Tex.Civ.App. — Fort Worth 1936, writ dism’d); McNatt v. Maxwell Inv. Co., 50 S.W.2d 1040 (Mo.Sup.1932); Chase v. First Nat. Bank of Cleburne, 20 S.W. 1027, 1029 (Tex.Civ.App.1892).

We perceive no error in the action of the trial court in dissolving the temporary injunction pendente lite. Upon determining that appellant had no claim to title, the question of whether the temporary injunction would remain in effect pending appeal was a matter resting within the discretion of the trial court. In view of the trial court’s ruling in the main case, no abuse of discretion was shown. In any event appellant will be held to have waived his right to complain by his failure to seek injunctive relief in the appellate court under Article 1823, Tex.Rev.Civ.Stat.Ann., authorizing the appellate court to protect the jurisdiction of the subject matter of the litigation pending appeal.

The judgment is affirmed.

      . Intervenors, Plus Two Cattle Company, Inc., and National Bank of Commerce of ■ Dallas, participated in the trial, but having failed to post an appeal bond, are not parties to this appeal.

      . The judgment recites that the court found the sale was valid and vested title in appel-lees Byrd and Warren Wagner as against the other parties to the suit and directed the clerk to issue a writ of possession in their behalf.


author: ELLIS, Chief Justice.

text:
    Eddie Ray PRITCHARD, Appellant, v. ESTATE of John David TUTTLE, Deceased, et al., Appellees.
    No. 8601.
    Court of Civil Appeals of Texas, Amarillo.
    Feb. 27, 1976.

      Burrell B. Evans, Tulia, Underwood, Wilson, Sutton, Berry, Stein & Johnson, R. A. Wilson, Amarillo, for appellant.
    R. C. Hamilton, Amarillo, for appellees.
   ELLIS, Chief Justice.

John W. Tuttle, individually, and as administrator of the Estate of John David Tuttle, deceased, and Shirley Jan Carricato, the heirs of John David Tuttle, deceased, brought suit against Eddie Ray Pritchard, formerly Eddie Ray Tuttle, wife of John David Tuttle, to recover the interest of their deceased father’s estate in the community estate of their father and defendant Eddie Ray Pritchard. Trial was to the court without a jury. Judgment was rendered in favor of plaintiff-appellee, John W. Tuttle, as administrator of his father’s estate, against defendant-appellant in the amount of $35,290.73, plus costs and interest after judgment at 6% per annum. By this appeal Eddie Ray Pritchard challenges the trial court’s award to the estate of her deceased husband. Affirmed.

Appellant and John David Tuttle were married on July 13, 1956, each having been previously married. They remained married until Mr. Tuttle died intestate on March 22,1973. At the time of his death, a divorce proceeding was pending between Mr. Tuttle and the appellant. John W. Tuttle and Shirley Jan Carricato are the children of John David Tuttle by a prior marriage and are his only heirs.

Findings of fact and conclusions of law were made by the trial court. The trial court found that after giving defendant credit for $30,000 which she had successfully traced as her separate property, plus credit for certain items of community property in the possession of plaintiffs since the death of John David Tuttle, the sum of $70,581.46 in community assets had been in the exclusive possession of defendant since her husband’s .death. The trial court further found that there had been no partition of the community property between the defendant and the deceased; that the deceased made no gift of his community property rights to the defendant; that the plaintiffs are not estopped tó assert their claim for the community rights of the deceased; that the estate of the deceased and the defendant are entitled to an equal division of the community property and the court had no discretion to make an unequal division; and that the estate of the deceased was entitled to one-half of $70,-581.46, or the sum of $35,290.73.

Appellant seeks a reversal of the judgment on eight points of error. In points of error numbers 1 and 2, appellant contends that the trial court should have allowed her a credit for the full amount she brought into the marriage, and that the court should have taken into account the reduced purchasing power of money in 1974 (time of trial) as compared to 1956 (time of marriage) in determining the amount to be credited to the respective parties in the community estate.

Appellant brought into the marriage as her separate property the sum of $41,351.23 cash, cattle and 953 acres of land. From the date of the marriage until the date of death of John D. Tuttle, all but a small portion of the money earned by the spouses was deposited in one bank account managed and cheeked upon solely by appellant. For a short time a second account was maintained by appellant for her husband, but it was closed. In addition, Mr. Tuttle maintained his own account for deposits and withdrawals of money he earned as a mechanic and welder, and appellant did not check on this account. Most of the deposits and withdrawals of community funds during the marriage were made by appellant.

Into the account managed by appellant were deposited interest received on certificates of deposit and U. S. Treasury notes purchased by appellant during the marriage, as well as proceeds from farming operations conducted on her separate land during the first year of marriage, and from rents received from the farm thereafter. Also purchased during the marriage were various items of property, such as tools, automobiles, a motor home and a house trailer. The balance in the account managed by appellant fluctuated, and at one time during the marriage, the balance was approximately half of the amount appellant brought into the marriage.

Initially, appellant is required to overcome the presumption that property possessed by either spouse at the dissolution of a marriage is community property. Tex. Family Code Ann. § 5.02. Tarver v. Tarver, 394 S.W.2d 780 (Tex.1965). Appellant has the burden of tracing and identifying by satisfactory evidence the items of property claimed to be her separate property. McKinley v. McKinley, 496 S.W.2d 540 (Tex.1973); Tarver v. Tarver, supra. The contended separate character of such items of property must be established by appellant within the guidelines set forth in Tarver v. Tarver, supra, i. e., a definite tracing of separate funds into particular accounts or property so they can be identified as separate property or funds as distinguished from those or their proceeds which have become so commingled with community properties to the extent that identification as separate or community property cannot be accomplished. In the instant case, it was the wife who commingled all marital funds in a single bank account and, after reviewing all the evidence, we cannot say that the court erred in finding that she failed to overcome the presumption of the community nature of the property except for the $30,000 traced as her separate property.

Appellant further contends that the amount of separate property traced by appellant should be adjusted to reflect the lost purchasing power of the 1956 dollars appellant brought into the marriage. In connection with this contention appellant argues that the courts may take judicial notice of the decreased purchasing power of the dollar although appellant does not point to any data indicating the specific adjustments to be made in this case. The cases cited by appellant are all cases in which one party complains that the award of damages is excessive, or in which the court considered inflation in awarding compensatory damages for loss of future earnings in a wrongful death action. The above mentioned cases are not analogous to the instant case where the court, in effect, found that the appellant had succeeded in tracing as her separate property $30,000 of the total property involved at the time of the death of her husband. Such sum so traced was assigned as “separate” and awarded to her as such on the basis of the status of the property and its value as it existed at the time of the termination of the marriage. It is our opinion that no error has been shown regarding the determination of the amount of separate property awarded to her. Appellant’s first two points of error are overruled.

In her third point of error appellant seeks an application of the trial court’s discretion to make an unequal division of the community estate. Appellant contends that because appellees stand exactly in the same position as their father, and because at the time of his death a divorce proceeding was pending, in which the trial court would have wide discretion in dividing the marital property, under the unusual circumstances revealed by this record the trial court’s discretion survived Mr. Tuttle. We do not agree. The broad discretion possessed by the trial court in the division of property upon divorce, Bell v. Bell, 513 S.W.2d 20 (Tex.1974), does not exist beyond the limits of a divorce proceeding and can be exercised only in the decree of divorce. Tex. Family Code Ann. § 3.63; Wade v. Wade, 295 S.W.2d 939 (Tex.Civ.App., San Antonio 1956, no writ). In Wade, it was held, citing Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102 (1942), that where a divorce decree is entered, any community property not disposed of in the decree becomes owned by the husband and wife as tenants in common, as though they had never been married. We think the same rule applies to the dissolution of marriage by death, i. e., that community property owned at the death of either or both spouses becomes property owned by tenants in common. Considerable testimony was adduced concerning the faults and merits of appellant and Mr. Tuttle much like the testimony which might be adduced in a divorce suit. However, under the authority of Wade v. Wade, supra, and Taylor v. Catalon, supra, it is our opinion that the trial court properly segregated and declared the community property to' be equally owned by the wife and the deceased husband’s estate as tenants in common. Appellant’s third point of error is overruled.

In points of error numbers 4 and 5, appellant asserts that the evidence is legally and factually insufficient to support recovery by appellees for enhancement of the value of her separately-owned land by the use of community funds. The trial court found that the community estate should be reimbursed for $50,650, the amount that the value of the separate property farm lands of appellant had been enhanced. However, because of a limitation of $20,000 contained in appellees’ pleadings as the amount sued for, the trial court limited recovery by the community to $20,000, one-half of which ($10,000) was awarded to appellees. As support for her position, appellant points to the testimony of an appraiser that expenditures to put in four irrigation wells in addition to the two wells which were on one section of land at the time appellant and Mr. Tuttle were married did not enhance the value of the land “from a water standpoint” because the six wells pulled about the same amount of water as the two wells had pulled. The appraiser testified that the section was worth $450 per acre with the “six wells and a good underground [pipe] system” and worth $350 per acre “with two wells and a limited system.” The witness based his appraisal upon the market data approach by which the witness compared sales of land with qualities similar to the land in question. Although he did not have first hand knowledge of the adequacy of the two original wells, the appraiser stated that it was reasonable to assume that, due to the general lowering of the water table in the area, the two original wells would not water the 506.9 acres in the section. In effect, this opinion testimony supported “enhancement” by reason of the additional wells to the extent of $100 per acre.

A witness for appellant testified that he had been the operator of appellant’s farm for twelve or thirteen years, and that as far as he was concerned, the additional wells were a dead expense to get the same amount of water that was once retrieved with two wells. However, he agreed, in general, that the land was more valuable with the additional wells and irrigation equipment, than without them.

It was for the trial court, as the trier of the facts, to determine the weight and credibility of the evidence presented on the question of enhancement. In view of the evidence submitted, it is our opinion that there was sufficient evidence of probative force to support the finding of enhancement. Points of error numbers 4 and 5 are overruled.

By points numbers 6 and 7 appellant contends, in essence, that the evidence establishes as a matter of law the existence of an oral partition between the spouses, a gift from Mr. Tuttle to appellant or an estoppel against John David Tuttle and those who claim' through him. Alternatively, appellant asserts that the findings of the trial court that none of the above theories was established are against the great weight and preponderance of the evidence.

Both points of error relate to testimony concerning the final meeting between appellant and Mr. Tuttle in April, 1972. At that time, Mr. Tuttle gathered his clothing and other items. The testimony by appellant was: “. . .1 said, ‘J. D., are you really leaving? Are you going off and leave me with all of these old cows and everything to take care of?’, and he said, ‘Yes. It’s all yours. Take it and jam it.’ And he left that night.” Mrs. Pat Roper, appellant’s ex-daughter-in-law, testified that she had heard Mr. Tuttle make similar expressions. Appellant further contends that Mr. Tuttle never asserted any claim upon or interest in the bank account against which only appellant could draw.

As authority for her contention that she and Mr. Tuttle made an oral partition of the community estate, appellant relies upon Callicoatte v. Callicoatte, 417 S.W.2d 618 (Tex.Civ.App., Waco 1967, writ ref’d n. r. e.), wherein the court upheld the judgment of the trial court which made a finding that an oral partition had been effected between the spouses. However, in the conversation indicative of a partitioning in Callicoatte the husband named specific items of property which he desired, a new car, tools, and clothing. The husband then told his wife that she could take care of the mortgage (on two tracts of land), that he did not “care anything about those.” It is our opinion that the facts in the instant case do not establish as a matter of law that an oral partition of the marital property in the status in which it existed was sufficiently effected by the exchange of words which took place between appellant and Mr. Tuttle in April, 1972. The trial court was entitled to assess the credibility of the testimony, to give more weight to some portions of the testimony than to other portions, and to consider the conversation in the context of the circumstances and determine whether a partition of their community property was actually intended or accomplished. Also, the record discloses that a lawyer whom the wife had employed after the separation to bring her suit for divorce testified that he explained the law to her concerning community property rights and at no time did she mention or indicate in any way that her husband had made a gift of any property to her. Further, she did not mention that she and her husband had ever divided the community property. This attorney was later discharged by the appellant. It is our further opinion that the finding made by the trial court that there had been no partition of the community estate was not against the great weight and preponderance of the evidence.

Appellant cites Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962), as support for her contention that Mr. Tuttle made a gift of his interest in most of the community estate. Conversations between the spouses, it is asserted, form the factual basis for the gift theory. The court in Bishop held that statements by the donor indicating that he had given the chattel to the donee were of themselves sufficient to raise a fact issue as to whether there was delivery. The court then held that the evidence in Bishop sustained the implied finding of gift. Although in the instant case the evidence raised a fact issue of gift, the trial court as trier of the facts found that appellant had not met her burden to establish that a gift had been made. From a consideration of the evidence and the circumstances, it is our opinion that the finding of “no gift” is not against the great weight and preponderance of the evidence.

Appellant next contends that Mr. Tuttle’s conduct with respect to appellant’s bank account now estops those claiming through him to assert a claim to any part of that bank account. Appellant points to evidence tending to indicate that he asserted no claim upon her bank account and recognized the account as belonging solely to her. In this connection, appellant cites Bell v. Barton, 370 S.W.2d 18 (Tex.Civ.App., Waco 1963), rev’d on other grounds, 380 S.W.2d 561 (Tex.1964), a case which deals with the question of estoppel as between husband and wife. There, the husband, who was the sole manager of the community property, pursuant to a pre-nuptial agreement, permitted the wife to make collection and deposit income from her separate estate into her personal account and exercise exclusive control and dominion over it. The agreement, although set aside, was held to evidence an intent that the property controlled by the wife was to be regarded as her separate property. In the instant case the wife was the one in control of most of the community property. There is no evidence of an agreement of any kind in the instant case to manifest an intent to treat specific items of marital property as separate or community. This case is more correctly one of commingling by the appellant wife, as discussed earlier in this opinion, rather than segregation of a certain portion of the community property from the remainder of such property and regarding and treating it as the wife’s separate property as was done in Bell.

From a review of all the evidence and circumstances in the instant case, it is our opinion that the trial court’s finding that no estoppel has been established against the appellees is supported by sufficient evidence of probative force, and that such finding is not against the great weight and preponderance of the evidence. Appellant’s sixth and seventh points of error are overruled.

In point of error number 8 appellant complains of the action of the trial court in making its value determination as of the date of Mr. Tuttle’s death rather than as of an earlier date, viz., April, 1972, the date of final separation of the spouses, or September 11, 1972, the date Mr. Tuttle purported to contract a ceremonial marriage with another woman. It is well settled that the date of valuation for enhancement purposes is the date of partition. Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935); Lindsay v. dayman, 151 Tex. 593, 254 S.W.2d 777 (1952). In the judgment in the instant case the trial court found that the value of appellant’s separate real estate was enhanced by the use of community funds during the marriage. The partitioning was made as of the time of the termination of the marriage, i. e., the date of the death of the husband. The case cited by appellant in support of her contention, Wheat v. Owens, 15 Tex. 242 (1855), concerned the abandonment of the husband by the wife so that she could live in open adultery. The court held that the facts presented no exception to the laws then in existence that the wife by such conduct had forfeited her rights in community property. We do not agree that a forfeiture such as that permitted under Wheat v. Owens, supra, is applicable here. See Routh v. Routh, 57 Tex. 589 (1882). The basis for partitioning of the property in the instant case is not determined by the conduct of the spouses, but on the basis of partitioning property jointly owned by tenants in common. See Wade v. Wade, supra, and cases cited therein. In view of the foregoing, it is our opinion that the value of the property and the community rights were to be determined as of the date of the termination of the marriage at which time the parties here involved became tenants in common. Appellant’s point of error number 8 is overruled.

We now consider the two cross-points of error asserted by the appellees. By cross-point number 1, it is contended that the trial court erred in not allowing prejudgment interest from the date of filing of Plaintiff’s Original Petition because appellant, having continuous possession of the major portion of all the property, some of which was interest bearing, had converted the property belonging to appellees. Appellees’ claim was unliquidated. Before their rights could be determined, it was necessary that the trial court fix the measure of recovery after resolving the issues of tracing, enhancement, gift, oral partition, and estoppel. Moreover, the trial court did not find a conversion. These circumstances invoke the principle that prejudgment interest is precluded because the measure of recovery was not theretofore fixed. The first cross-point is overruled.

In cross-point number 2, appellees state that the appeal made by the appellant is frivolous and that the estate is entitled to an additional ten percent of the recovery as penalty for an appeal taken for delay and without sufficient cause. In view of the nature of the factual and legal questions raised by the appeal and which, for the reasons above stated with respect to appel-lees’ first cross-point, we regard as seriously urged for sufficient cause by the appellant, we overrule appellees’ second cross-point.

The judgment of the trial court is affirmed.


author: SPURLOCK, Justice.

text:
    Ezekiel C. ROBINSON, Appellant, v. ARGONAUT INSURANCE COMPANY, Appellee.
    No. 17697.
    Court of Civil Appeals of Texas, Fort Worth.
    March 5, 1976.
    Rehearing Denied April 9, 1976.

      Dushman, Greenspan, Kensel & Friedman and Lowell E. Dushman and N. Michael Kensel, Fort Worth, for appellant.
    Anderson, Henley, Shields, Bradford, Pritchard & Miller and C. A. Searcy Miller, Dallas, for appellee.
   OPINION

SPURLOCK, Justice.

This is an appeal from a judgment rendered in a workmen’s compensation case tried to a jury. The appeal is predicated upon the claimed error of the trial court in excluding testimony of a doctor concerning his prognosis because same was not based upon reasonable medical probability.

We reverse and remand.

The appellant will be referred to as plaintiff and the appellee will be referred to as defendant.

On August 15,1972, the plaintiff, while in his employer’s plant, sustained an accidental injury. His employer, American Manufacturing Company of Texas, was in the business of manufacturing bomb casings. Plaintiff was a shot blast operator and was working upon a steel floor. The metal gun he was using came in contact with an electrical relay resulting in 440 volts of electricity coursing through his right hand, arm, body and feet and then into the steel floor. He suffered second degree burns on the palm of his right hand, right forearm, dorsal portion, and on one of his feet. He was thrown backward, landing on the steel floor in a sitting position and was rendered unconscious. He was given artificial respiration at the scene and removed to a local hospital by ambulance where he was seen by Dr. Thomas, his employer’s doctor. In the hospital his chest, ribs and heart were X-rayed. His ribs, chest, heart and lungs appeared clear and there was no evidence of rib fracture. The EKG was normal. His burns were dressed and he was observed until the following day when he was discharged from the hospital. He was later referred by his employer’s doctor to a neurosurgeon and an orthopedic doctor for examination. The neurosurgeon found on the date of his examination plaintiff had no objective evidence of injury except the healing electrical burns. The orthopedic surgeon did not testify. His employer’s doctor released him for work on December 7, 1972. His employer’s doctor had treated plaintiff almost daily from the date of accident until December 7, 1972. He worked one-half day and testified that he could not do the work and returned to Dr. Thomas who treated him until December 15, 1972. He then saw another orthopedic doctor who has since moved out of this state. He then saw Dr. Raymond J. West, an orthopedic surgeon, who was treating him at the time this doctor’s deposition was taken. His employer’s doctor testified at the time of trial that plaintiff had recovered from his injuries. He further testified that he had treated plaintiff for pain in his back by giving him diathermy treatments. He testified he had given plaintiff a pre-employment physical examination immediately before he was employed in his present employment and at that time he was physically fit to do hard labor.

Dr. West, plaintiff’s only medical expert, testified by way of deposition that he started treating the plaintiff on February 21, 1973; plaintiff gave a history of having fallen in a sitting position; he was having pain in his low back; and he was a large person, 6'3" in height and weighed 240 pounds. A physical examination revealed he had tenderness in his low back, restricted motion in his hips, the straight leg raising test put pressure on the nerve in his low back and, although a doctor can normally raise a person’s leg in an extended position to about 90 degrees, the plaintiffs straight leg raising test showed he could raise his leg to only BO degrees; X-rays revealed there was a narrowed disc space at the level of lumbar 5-sacrum 1. He diagnosed his condition as a sprained back caused by the fall. He was referred to Dr. Hoover at St. Paul’s Hospital in Dallas who did an elec-tromyogram. The interpretation of this electromyogram was excluded from evidence upon objection of the defendant. Dr. West further testified that plaintiff suffered from nerve root irritation and in his opinion had a pinched nerve. The doctor advised plaintiff to spend most of his time in bed. He also testified that “probably” he had a nerve root irritation. Plaintiff testified that he was suffering pain. There is evidence that a pinched nerve can cause pain and disability.

The bill of exceptions reflects the following testimony of Dr. West which was excluded:

“ ‘QUESTION: Assuming that Mr. Robinson at this time is still having difficulty and is still troubled with pain, could you tell me as to whether or not you have an opinion on the likelihood of how much longer he could expect something like this to go on? (Emphasis ours.)
“ ‘ANSWER: If I knew that he still had pain as of this date, this being a year and a half later, I would assume that he will continue to have problems with his back on a permanent basis. (Emphasis ours.)
“ ‘QUESTION: Now, earlier I had asked you on direct examination, that assuming that he was still complaining of pain in his low back area and his condition was still essentially of that nature, I asked you to give an opinion based on whether or not you at this time would have an opinion as to whether or not it was permanent, and then
I related to this time, did we understand that I meant as of January 17, 1975, the time of the taking of this deposition?
“‘ANSWER: Yes.’”

Later in his testimony Dr. West testified that in reasonable medical probability the injury in question caused plaintiff to have a pinched nerve condition. He further testified that assuming he was still having pain he would not recommend that he do work requiring bending, stooping and lifting or other work of a workman’s type labor.

Dr. West was then asked the following question and gave the following answer:

“QUESTION: Doctor, have your opinions you have stated today and what we have been discussing, have they been based upon reasonable medical probability?
“ANSWER: Yes.”

At this juncture of the trial, immediately following the above question and answer, plaintiff’s counsel then retendered the excluded testimony quoted earlier. The court stated in connection therewith that he would sustain his prior ruling, which was one of exclusion, because the doctor’s testimony was not based upon reasonable medical probability.

The excluded testimony to the effect that plaintiff’s condition was permanent is the only direct testimony offered that plaintiff’s disability is of a permanent nature. The jury then had no testimony before it concerning the duration of the disability except the testimony of the two doctors who testified on behalf of the defendant. The jury disregarded the testimony of the neurosurgeon and then found the disability terminated on the date Dr. Thomas testified that he released the plaintiff to return to work.

The only contested issue in this case was the extent and duration of the disability. This issue was sharply contested.

The jury, in response to special issues, found: the injury of August 15,1972, was a producing cause of plaintiff’s total disability which began on the date of the accident, August 15, 1972, and continued until December 7, 1972. It was followed by partial incapacity that began on December 8, 1972, and ended April 30, 1973. The jury then found that his average weekly earning capacity during his period of partial temporary incapacity was $80.00 per week. It was uncontroverted that his average wage per week prior to the accident was $107.54. The judgment was rendered in accordance therewith for plaintiff in the sum of $1,137.90 less $931.00 which he had theretofore been paid, leaving a net judgment of $206.90.

Plaintiff assigned only one point of error, that being the action of the trial court in excluding the testimony of Dr. West concerning his opinion that plaintiff’s injury was of a permanent nature.

In connection with the first question and answer excluded, the doctor was asked his opinion on the likelihood of the permanency of plaintiff’s injuries. The word “probability” was not used. The words “likelihood” and “probability” are synonymous. See: Webster’s New World Dictionary of the American Language, 1972 Ed., Enlarged; Webster’s New Third International Dictionary, Unabridged, 1964 Ed.; and Webster’s New Collegiate Dictionary, 1975 Ed.

The admissibility of and weight to be given expert medical testimony in Texas is discussed in “Expert Medical Testimony in Texas”, by Zollie Steakley, Associate Justice of the Supreme Court of Texas, Vol. 1, St. Mary’s Law Journal, page 161 (1969). This author divides the decided cases concerning this question into three categories and discusses the applicable law under each. These categories are: “Future Consequences of Present Injuries”, “Causation”, and “Medical Professional Liability Cases”. Ordinarily, different rules apply to cases in these separate categories. Justice Steakley then analyzes four cases: Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.Sup., 1966); Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.Sup., 1968); Parker v. Employers Mutual Liability Ins. Co. of Wis., 440 S.W.2d 43 (Tex.Sup., 1969); and Insurance Company of North America v. Kneten, 440 S.W.2d 52 (Tex.Sup., 1969). Within four months of the Wood decision the Supreme Court delivered its opinions in the Parker and Kneten cases, mentioned above. Each of these cases involve causation as distinguished from future consequences of present injuries. The Myers case involves the question of whether a traumatic injury aggravated a pre-existing malignant brain tumor which was a “producing cause” of death. The Wood case involves an escalator accident and the question involved was whether or not the escalator accident could have caused claimant’s heart attack. The question involved in the Parker case was that although the cause of cancer is unknown it is possible that prolonged exposure to radiation could cause cancer.

In Insurance Company of North America v. Kneten, supra, the Supreme Court had before it a workman’s compensation case. The issue here was whether or not an electric shock received by the employee caused damage to his heart, resulting in total and permanent disability. Dr. Sloan was the only medical witness who testified. He testified that Kneten was predisposed to a heart attack and prior to his alleged accident he was suffering from hardening of the arteries of his heart. When he was asked his opinion as to whether the occurrence had precipitated the heart attack the doctor replied that “he could not say without medical doubt, it was a ‘strong possibility’.” The doctor “Pointing out that he did not know the nature of the electric shock received by his patient, he said that the shock ‘could have’ been a contributing factor.” On cross-examination the doctor was asked if he could put his finger on the cause of the attack and he replied: “ T can’t say that did have, and I certainly can’t say it didn’t have something to do with it.’ ” He said, “ ‘I think that the chronological events that have happened makes it a strong possibility that this could help precipitate a heart attack.’ ” He was asked if he could say if the heart attack was medically probable, to which he replied, “ ‘Well, circumstantially, I would say, yes, strong possibility.’ ”

In passing upon the sufficiency of this testimony the Supreme Court stated: “While the doctor’s testimony was not as responsive and explicit as it could have-been, he has said nothing to rule out a medical relation between the work occurrence and the attack, nor has he negated the reasonableness of the finding of causal connection. We think the jury was entitled to conclude as to the probability based upon all of the evidence in the case.”

The following analysis of these cases appears at page 169 of St. Mary’s Law Journal, supra: “If Myers, Wood, Parker and Kneten are considered together, it is evident that in certain areas expert medical testimony in terms of reasonable medical probability is required for submission to the jury of issues on causation. Parker and Myers are illustrative of this type of case. Myers presented questions of the aggravation of a pre-existing cancer, and the answers to these questions were clearly not in the realm of general knowledge. In Parker the causation question turned upon the effects of radiation upon human cells, another question beyond the layman’s knowledge and experience. There are questions other than cancer causation and aggravation requiring expert medical testimony for their resolution; however, since cancer is one of the leading causes of death in the United States, the solution of causation questions in these cases will continue to be a vexatious problem for the courts.

“Kneten, on the other hand, illustrates a ' type of case where the nature of the physical damage and the sequence of events supplies a proper basis for a reasonable jury inference on causation, notwithstanding the expert medical witness may be said to have testified only in terms of possibility. It was emphasized in the opinion that the medical testimony was not inconsistent with the strong circumstantial evidence supporting the plaintiff’s causation theory.” (Emphasis ours.)

In the case before us the defendant relies upon the Myers and Wood cases. It is our opinion that the decisions in those two cases are not controlling of the facts before us.

In some of the professional liability cases the facts are such that they are analogous to the cases involving cancer and radiation. Under the facts in most of those cases expert testimony stated in a positive manner is required to sustain a verdict or to even be admissible.

An analysis of the cases involving cancer, the effects of radiation, and some professional liability cases require positive expert medical testimony to sustain a verdict.

In Texas Employers Insurance Association v. Dimsdle, 440 S.W.2d 359 (Texas Civ.App., Dallas, 1969, ref., n. r. e.) that court stated the rule is that “. . . permanency of disability in a workmen’s compensation case may be established by lay testimony or by circumstances alone, without expert medical opinion testimony.” That court then cites as its authority for this statement 63 Tex.Jur.2d, Sec. 429, page 455, and 14 cases.

In 63 Tex.Jur.2d, “Workmen’s Compensation”, Sec. 429, page 455, “As to extent and duration of disability”, (Rev.1965), the rule is stated as follows: “The duration and extent of disability resulting from an injury is at best an estimate that must be determined by a jury from all the pertinent facts before it. The issue as to disability may be established by the claimant alone, even though his testimony may be contradicted by medical witnesses.”

In the Myers case, supra, the Supreme Court stated: “We note as not controlling here those decisions in workmen’s compensation cases in medical situations not involving the highly uncertain medical problem of the nature, origin and aggravation of cancer. (Cases cited.)”

In Insurance Company of North America v. Parker, 434 S.W.2d 159 (Texas Civ.App., Tyler, 1968, no writ hist.) that court stated: “It is now well established in this state that ‘reasonable probability’ is determined by a consideration of ‘the substance of the testimony of the expert witness and does not turn on semantics or on the use by the witness of any particular term or phrase.’ Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.Sup., 1966); Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.Sup.1968).”

In Western Casualty and Surety Company v. Gonzales, 518 S.W.2d 524 (Tex. Sup., 1975) that court stated the correct principle of law that we should here apply. That court stated: “The form of that expert testimony is not so important as its substance. Certainly a doctor is not required to use the usual expression that there is a ‘reasonable probability’ of causal connection between original injury and present physical condition. Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex. 1968); Steakley, Expert Medical Testimony in Texas, 1 St. Mary’s L.J. 161 (1969). . It is when he is uncertain, or does no more than acknowledge that everything is possible, that a gap in the proof may be closed only by the doctor deciding that the chances weigh more heavily in favor of the causal relation.” See also Atkinson v. United States Fidelity & Guaranty Co., 235 S.W.2d 509 (Texas Civ.App., San Antonio, 1950, ref., n. r. e.).

The parties in their respective briefs rely upon cases involving causation where the rule is as stated above.

The excluded testimony here concerns future consequences of present injuries.

In St. Mary’s Law Journal, supra, Justice Steakley states that the case of Port Terminal Railroad Association v. Ross, 155 Tex. 447, 289 S.W.2d 220 (1956), clarifies the nature of expert testimony required for jury consideration of the future consequences of an injury. In that case the court had before it a no-evidence point concerning whether or not. claimant had showed a probable and determinable future course of plaintiff’s neurosis. It was claimed that the trial court erred in including future damages as a permissible element in the verdict. In that case the doctor testified on the question of permanency in terms of “ T think not’ ”, “ T think he will not return to work’ ”, “ ‘It happens frequently’”, “T don’t believe he will get well’ ”, “ ‘he might be able to go back doing the heavy work he did before’ ”, and “ T don’t think he will’ ”. He further said “ ‘I haven’t said he was permanently incapacitated, because I don’t know’.”

It was further stated in the Ross case: “Since there is evidence of probative force to support a jury finding that it is a reasonable probability that plaintiff will not recover from the mental illness, the trial court did not err in permitting the jury to consider the future consequences of. the injury.”

Justice Steakley, in St. Mary’s Law Journal, supra, in commenting upon this case states that the reasonable certainty rule which prevails in some jurisdictions is not recognized in Texas.

The defendant contends that the exclusion of testimony here involved was harmless error. It is our opinion that the error complained of amounted to such a denial of the rights of the plaintiff as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case.

This point of error is sustained. Rule 434, T.R.C.P.

Judgment is reversed and cause remanded.