author: CIRE, Justice.

text:
    Donald A. THIEL, Appellant, v. Steven OAKS et al., Appellees.
    No. 1392.
    Court of Civil Appeals of Texas, Houston (14th Dist.)
    March 3, 1976.
    Rehearing Denied March 24, 1976.

      Donald A. Thiel, pro se, Michael Anthony Maness, Jefferson, Maness, Valdes & Mims, Houston, for appellant.
    Steven Oaks, pro se.
   CIRE, Justice.

This is an appeal from a denial of a temporary injunction. Appellant Donald Thiel petitioned the district court to enjoin appellees, Steven Oaks as Chairman of the Harris County Democratic Executive Committee and the Harris County Democratic Executive Committee, from placing the name of Paul Lawrence on the ballot as a candidate for the Democratic Party nomination for the office of State Representative for District 90.

The relevant facts have been stipulated by both parties. Appellant has duly and timely filed his application and filing fee and is a qualified candidate for the Democratic nomination for the office of State Representative, District 90. Paul Lawrence filed his application by certified mail, correctly addressed to appellee and mailed at 5:54 P.M. on Monday, February 2, 1976. The application was received by the Harris County Democratic Executive Committee on February 3, 1976.

Appellant petitioned for temporary injunction on the ground that Lawrence’s application was not timely filed according to the procedure specified in Tex.Election Code Ann. art. 13.12 sections 2, 2b (Supp. 1975-76).

Although we tend to agree with appellant’s interpretation of the law, we find that the district court, and this court on appeal, are without jurisdiction to grant the injunction prayed for. Elections are political matters, and the courts may take jurisdiction of political matters only if the law has specifically granted such authority. Lund v. Alanis, 381 S.W.2d 955, 956 (Tex. Civ.App. — San Antonio 1964, no writ). Although the Election Code specifically grants jurisdiction to the courts to decide election contests and to grant injunctions in some matters relating to elections, there is no grant of authority to enjoin inclusion of a candidate on the primary ballot for the reasons alleged here.

Appellant contends that he may receive such relief under the general injunction statute, Tex.Rev.Civ.Stat.Ann. art. 4642. In order to invoke the courts’ jurisdiction, however, appellant must show a justiciable interest in the subject matter of this litigation: he must show a special injury particular to himself. Holland v. Taylor, 153 Tex. 433, 270 S.W.2d 219 (1954).

Appellant, having filed his application in accordance with the law, has a particular interest in his name being included on the primary ballot. However, his interest in seeing that unqualified candidates are not included on the primary ballot is not particular to him, but is shared with any other citizen constituting the general public. Appellant has no prospective right, protectible by temporary injunction, to avoid being challenged in the party primary by an unqualified candidate. See Reynolds v. Cobb, 196 S.W.2d 60, 62 (Tex.Civ.App. — Dallas 1946, no writ).

Although the Election Code contains no grant of authority to the judiciary to enjoin party officials from illegally including candidates on the primary ballot, Article 13.41 of the Election Code and Tex.Rev.Civ.Stat. Ann. art. 1735a (Supp. 1975-76) do grant original jurisdiction to the supreme court and to the courts of civil appeals to

issue the writ of mandamus, or any other mandatory or compulsory writ of process, against any public officer or officer of a political party, or any judge or clerk of an election, to compel the performance, in accordance with the laws of this state, of any duty imposed upon them, respectively, by law, in connection with the holding of any general, special, or primary election or any convention of a political party-

Tex.Rev.Civ.Stat.Ann. art. 1735a (Supp. 1975-76).

Prior to an unlawful placement of a candidate’s name on the primary ballot, another candidate, whose name has also not yet been placed on the ballot, has no probable right which can be protected by temporary injunction. If the party officials do unlawfully place the name of a candidate on the ballot, the legislature has prescribed the writ of mandamus as the appropriate remedy.

We conclude that appellant was without authority to institute this suit in the trial court, and the trial court therefore had no jurisdiction. The judgment of the trial court is reversed, and the cause is dismissed.


source: Caselaw Access Project

author: REYNOLDS, Justice.

license: Public Domain

text:
    Anita FIELD, Appellant, v. Jesse D. SHAW, Appellee.
    No. 8642.
    Court of Civil Appeals of Texas, Amarillo.
    March 8, 1976.

      Groce, Locke & Hebdon, Norman L. Nev-ins, San Antonio, for appellant.
    Billy A. Davis, Lubbock, for appellee.
   REYNOLDS, Justice.

A grantor of real property filed this suit to recover title and possession on the theory that a provision in the deed had been violated which caused the property to revert to grantor. The trial court rendered a take-nothing judgment. Because the deed provision describes a condition subsequent and the trial court concluded, upon factual findings supported by evidence, that the three-year statute of limitation of actions for recovery of land applied, the forfeiture grantor sought by way of suit is barred. Affirmed.

By her 12 June 1949 deed reserving the minerals, Anita Field conveyed to State Line Gin Company the surface of approximately five acres of unimproved ranch land situated in Yoakum County. The deed specifies that a gin will be constructed and in operation by 1 September 1949 or the land shall immediately revert to grantor, and additionally provides that:

It is further agreed that the land herein conveyed is expressly restricted in use to that of the operation of a Cotton Gin and that no other business shall ever be operated thereon and in the event this restriction is violated, the land herein conveyed shall revert to the grantor herein.

That the gin was constructed and operative within the time limit set by the deed is not questioned. Following mesne conveyances, the property was acquired by Terry Bacon in 1965.

In the fall of 1967, eighteen years after the gin became operative, there was established, pursuant to an oral contract between Bacon and one Kershaw, a grain leg as an adjunct to the gin. The grain leg, described as an auger with fifty feet of conveyor rising to a height of fifteen feet, was used to unload grain brought by farmers to, and purchased by Kershaw on, the gin premises, and to load the grain for shipment. Thereafter, by their warranty deed dated 31 May 1970, Bacon and his wife conveyed the property to Jesse D. Shaw and wife.

On 26 January 1973, Anita Field filed this suit to recover the title to and possession of the property from Jesse D. Shaw. Her trial pleadings are that the deed provision copied above is a conditional limitation which was violated by conducting the grain business on the property, causing the property to automatically revert to her. Alternatively, she pleaded that the provision constituted a condition subsequent and that she had timely asserted her right of forfeiture upon learning of the violation. After impleading the Bacons on their warranty, Shaw responded to Field’s trial pleadings by interposing, among other pleas and defenses, the affirmative defense of the three-year statute of limitation on actions for the recovery of lands.

Hearing the evidence without the intervention of a jury, the trial court rendered a take-nothing judgment. Findings of fact and conclusions of law were made and filed. Two of the factual findings are that (1) Field knowingly participated in the alleged breach by selling her own grain on the premises, and that (2) Shaw had and held peaceable and adverse possession of the property under a regular chain of title for more than three years after Field’s cause of action accrued and before commencement of this suit. Among the legal conclusions drawn by the court are these two: (1) the provision at issue is a condition subsequent, and (2) Shaw has title by virtue of the three-year statute of limitation, Vernon’s Ann.Civ.St. art. 5507.

In appealing, Field first attacks the court’s legal conclusion that the provision is a condition subsequent, urging the language is that of a conditional limitation. We agree with the trial court.

A conditional limitation exists when the estate is limited by the happening of an event which, when it occurs, terminates the estate without the necessity of reentry. A condition subsequent designates an event which, when it happens, gives the grantor the right to terminate the estate by reentry. Eyssen v. Zeppa, 100 S.W.2d 417 (Tex.Civ.App. — Texarkana 1936, writ ref’d). This right of forfeiture must be exercised within a reasonable time, Zambrano v. Olivas, 490 S.W.2d 218 (Tex.Civ.App. — El Paso 1973, writ ref’d n. r. e.), and the interposition of a limitation statute may bar an action to enforce the right of forfeiture. See City of Dallas v. Etheridge, 152 Tex. 9, 253 S.W.2d 640 (1952).

No magic words are required to create either a conditional limitation or a condition subsequent; nevertheless, as Field acknowledges in her brief, the classic language for the former are the terms “so long as,” “until” and “during”; but, for the latter, the terms “if,” “but if,” “on condition that” and “provided however” are the classic language. See, i. e., Eyssen v. Zeppa, supra; Lawyers Trust Company v. City of Houston, 359 S.W.2d 887 (Tex.1962). Another consideration in determining whether a conditional limitation or a condition subsequent was intended by the language selected is the rule that the deed is construed against the grantor who chose the language. Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex.Comm’n App., 1928).

In restricting the use of the property solely to the operation of a cotton gin, Field did not employ the classic language of a conditional limitation automatically terminating the estate upon the use of the land for another business. Instead, her language is: “and in the event this restriction is violated, the land herein conveyed shall revert to the grantor herein.” Either the substitution or insertion of any of the classic terms for a conditional limitation in the italicized clause destroys the grammatical sense of the composition, and to use any one of those terms to express a normal conditional limitation requires a redrafting of the provision. Neither did she employ one of the usual terms for a condition subsequent, but any of those terms can be either substituted for, or inserted with or in lieu of, all or some of the words in the phrase “and in the event” to retain grammatical harmony with the other language chosen for the restriction. Illustratively, the clause retains the same meaning if it is written, “but if this restriction is violated,” or “and if this restriction is violated,” or “and provided however in the event this restriction is violated.” Thus, the language Field chose is more compatible with an expression of a condition subsequent than with a conditional limitation.

The determination that a condition subsequent was intended comports with Field’s testimony. She testified that her conveyance of the land for use as a gin operation was to fulfill her father’s desire to promote business to build a village on the Fields’ lands. When asked her purpose or reason for the restriction in the deed, she did not say it was to grant an estate only so long as the land was used for the operation of a cotton gin; rather, she stated that the only purpose of the restriction “was to prevent another gin being located there.”

Moreover, in case of doubt, the language Field used in her deed is to be construed most strongly against her, Hudson v. Caffey, 179 S.W.2d 1017, 1019 (Tex.Civ.App.—Texarkana 1944, writ ref’d w. o. m.), and any doubt is resolved in favor of a condition subsequent because it is less ponderous than a conditional limitation upon the grantee. Lawyers Trust Company v. City of Houston, supra. Field’s first point of error is overruled.

Even though the court found that the buying and selling of grain was an inconsequential use of the property and concluded that the condition subsequent was not breached, both of which Field contests and which we do not reach, the court further found that Field participated in the alleged breach by selling her own grain on the premises. Field utilizes her tenth and eleventh points to assail the latter finding on the grounds of legally and factually insufficient evidence.

Field testified that she learned of the buying and selling of grain on the premises in 1972. It was Bacon’s testimony that Anita Field, whose house was within a 250-yard uninterrupted line of sight from the gin and who passed on the road by the gin premises where the grain operation was in plain view, was in the gin office in the fall of 1969 for the purpose of selling, and that she did sell, her own grain. It is axiomatic that the court, in resolving the disputed fact issues, is entitled to assess the credibility of the witnesses and the weight to be given their testimony as well as the reasonable inferences to be drawn therefrom. In recognition thereof, it must be said that there is some evidence of probative force to support the finding and, after considering all of the evidence, we cannot say that the finding is so against the great weight and preponderance of the evidence as to be wrong or unjust. The points are overruled.

Field challenges, by her seventh point, the court’s application of the three-year statute of limitation of actions for recovery of lands. Assuming that there was a violation of the condition subsequent in 1967 when the grain business was established, Field learned of it in 1969 when she participated in the violation by selling her grain on the premises. At that time in 1969, her right to terminate the estate arose, but, to forfeit the estate, she was required to affirmatively assert a reentry. Tickner v. Luse, 220 S.W. 578, 580 (Tex.Civ. App.—El Paso 1920, writ ref’d). However, she did not assert any reentry until she filed this suit on 26 January 1973. The issue, then, is whether her right to obtain forfeiture by way of suit is barred by the three-year statute of limitation. The issue is resolved by the nature of her suit and the wording of the statute. See City of Dallas v. Etheridge, supra, at 643.

The dominant purpose of Field’s suit is to recover the title to and possession of real estate. The three-year statute of limitation of actions for recovery of lands, V.A.C.S. art. 5507, declares that:

Suits to recover real estate, as against a person in peaceable and adverse possession thereof under title or color of title, shall be instituted within three years next after the cause of action accrued, and not afterward.

Field’s suit is one to recover real estate; it is against Shaw who, as correctly determined by the trial court from the evidence, had peaceable and adverse possession under title for more than three years after Field’s cause of action accrued (in the fall of 1969) and before the commencement of this suit (on 26 January 1973). Therefore, the pleaded statutory limitation imposed by art. 5507 barred the forfeiture Field sought by way of her suit. The seventh point is overruled.

The sustained factual findings and legal conclusions support the trial court’s judgment. As a result, we do not advert to the other points of error addressed to the additional findings and conclusions made in support of the judgment.

The judgment is affirmed.


author: ROBINSON, Justice.

text:
    LINCOLN LIBERTY LIFE INSURANCE COMPANY, Appellant, v. Clarice M. GOODMAN, Appellee.
    No. 8553.
    Court of Civil Appeals of Texas, Amarillo.
    March 8, 1976.
    Rehearing Denied April 5, 1976.
    Evans, Pharr, Trout & Jones, Charles B. Jones, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Max C. Addison, Lubbock, for appellee.
   ROBINSON, Justice.

Plaintiff Clarice M. Goodman filed suit to recover benefits payable on the death of her insured husband, Jackie Leo Goodman, under a life insurance policy issued by defendant Lincoln Liberty Life Insurance Company. The insurance company answered contending that Goodman’s death occurred as a result of the risk excluded by a rider limiting liability if the insured’s death occurred as a result of specified aviation activities. The trial court entered judgment for plaintiff on a jury verdict. Defendant insurance company appeals. Reversed and rendered.

The exclusion in question reads as follows:

This Policy is issued under the express condition that should the death of the Insured occur as a result of operating, or riding in, or descending from any kind of aircraft if the Insured is a pilot, officer or member of the crew of such aircraft or is giving or receiving any kind of training or instruction or has any duties aboard such aircraft or requiring descent therefrom, then in such event the Company’s liability shall be limited to a single sum equal to the greater of (a) the premiums paid on this Policy, decreased by any dividends returned and any indebtedness on or secured by this Policy, or (b) the reserve under this Policy, increased by any dividend accumulations and by the reserve on any outstanding dividend additions, less any indebtedness on or secured by this Policy; provided, however, that in no event shall such liability be greater than the amount payable in the absence of this provision.

The insured Goodman, a licensed pilot, took off from the airport at Lubbock, Texas, bound for Detroit, Michigan, in a Piper Aztec aircraft on August 27, 1966. With Goodman was Cody Corbell, a student pilot, and Harold F. Mclnroe, who was not a pilot. The aircraft with the three occupants landed in Springfield, Illinois. The aircraft was refueled and took off at 6:36 p. m. C.D.T., 23:36 G.M.T. The aircraft contacted Springfield Radio shortly after takeoff. No further radio contact was had with the aircraft. Eight days later the partially clothed body of Harold Mclnroe washed ashore from the waters of Lake Michigan. The body showed no external injuries. No trace of Goodman, Corbell, or the plane was ever found. No emergency flotation equipment was carried aboard the aircraft.

The parties stipulated as follows:

Neither party has developed any information or evidence by investigation to show that the three occupants, Jack Goodman, Cody Corbell and Harold Mcln-roe were not in the aircraft when it either landed, ditched or crashed into the waters of Lake Michigan.

Plaintiff adduced the opinion testimony of Dr. John Anthony Valentiejus, a medical doctor who examined Mclnroe’s body, and of Dr. Richard G. Snyder, a witness who testified as an expert on human tolerance to impact and on water ditchings of general aviation aircraft.

Dr. Valentiejus testified that he knew of no method that could be employed on Mcln-roe’s body considering the state of decomposition to determine absolutely the cause of death. He found no evidence of ante mor-tem trauma and testified that in his opinion Mclnroe died from drowning. He further testified that he thought that if an aircraft crashed with high speed impact, that he would be able to find evidence of such a crash on a plane passenger’s body. He also testified that based on his experience it would be unlikely that only one of three occupants of an aircraft would have escaped injury in a water ditching.

Dr. Snyder testified that in his opinion in all probability contact was made with the water with insufficient force to have caused disabling or fatal injuries to any of the occupants. Among factors which he considered were the absence of ante mortem trauma to Mclnroe’s body, the configuration of the plane, the pilot’s experience, the condition of the lake, weather conditions, and the National Transportation Safety Board statistics and briefs concerning water ditchings. Snyder stated that he believed that the occupants had the opportunity to escape the aircraft. He also stated that he thought that they, in all probability, did escape the aircraft.

The jury made the following responses to special issues:

1. Jack Goodman died on or about August 27, 1966.

2. The aircraft in question contacted the waters of Lake Michigan with insufficient force to cause disabling or fatal injuries to Jack Goodman.

3. Jack Goodman escaped from the Aztec aircraft after it contacted the waters of Lake Michigan.

4. Jack Goodman drowned.

5. The death of Jack Goodman did not occur as a result of operating, riding in, or descending from the aircraft.

6. At the time of his death, Jack Goodman did not have duties aboard the aircraft or have duties requiring descent from the aircraft.

6-A. At the time of his death, Jack Goodman was not giving or receiving any kind of training or instruction.

6-B. At the time the Aztec aircraft contacted the waters of Lake Michigan, Jack Goodman was not giving or receiving any kind of training or instruction.

7. At the time the aircraft contacted the waters of Lake Michigan, Jack Goodman had duties aboard the aircraft but did not have duties requiring descent from the aircraft.

8. At the time of his death Jack Goodman was not either a pilot, officer or member of the crew of the aircraft.

9. At the time the aircraft contacted the waters of Lake Michigan, Jack Goodman was either a pilot, officer or member of the crew.

10. After the aircraft contacted the waters of Lake Michigan, Jack Goodman reached a position of potential safety prior to his death.

On appeal the insurance company challenges the legal and factual sufficiency of the evidence to support the jury findings that Goodman’s plane contacted the waters of Lake Michigan with insufficient force to cause disabling or fatal injuries; that Goodman escaped from the plane after it contacted the water; that Goodman drowned; that after the plane contacted the water and prior to Goodman’s death, he reached a position of potential safety; and that Goodman’s death did not occur as a result of operating, riding in or descending from the aircraft.

The defendant insurance company contends that Goodman’s death is within the exclusion whether he drowned after escaping from the plane into Lake Michigan or was injured or killed on impact.

The plaintiff contends that Goodman’s death is not within the exclusion if he escaped from the aircraft into the lake before his death, or if Goodman died as a result of drowning rather than as a result of injuries received on impact.

Neither plaintiff nor defendant have cited case authority from the Texas state courts dealing with the applicability of an aircraft exclusion to a death following the ditching or crashing of a plane into water and we have found none. They have, however, collected and discussed numerous such cases from other state courts and federal courts. Among cases considering the application of aviation exclusion clauses to deaths from drowning or exposure after a crash or ditching are Hobbs v. Franklin Insurance Company, 253 F.2d 591 (5th Cir. 1958); Neel v. Mutual Life Ins. Co. of New York, 131 F.2d 159 (2d Cir. 1942); Green v. Mutual Ben. Life Ins. Co., 144 F.2d 55 (1st Cir. 1944); Order of United Commercial Travelers of America v. King, 161 F.2d 108 (4th Cir. 1974); Rossman v. Metropolitan Life Ins. Co., 71 F.Supp. 592 (D.Me.1947); McDaniel v. California-Western States Life Ins. Co., 181 F.2d 606 (5th Cir. 1950); Smith v. Metropolitan Ins. Co., 29 N.J.Super. 478, 102 A.2d 797 (1954); Elliott v. Massachusetts Mutual Life Insurance Company, 388 F.2d 362 (5th Cir. 1968); Goforth v. Franklin Life Insurance Company, 202 Kan. 413, 449 P.2d 477 (1969); Howard v. Equitable Life Assurance Society of the United States, 360 Mass. 424, 274 N.E.2d 819 (1971); Prudential Insurance Company of America v. Howe, 232 Ga. 1, 205 S.E.2d 263 (1974), and Security Mutual Life Insurance Company v. Hollingsworth, 459 P.2d 592 (Okl.1969). The various courts denied recovery under the policy in each of these cases except the Hollingsworth case from Oklahoma.

In Hollingsworth, the plane carrying the insured and three others went into Shawnee Lake, 200 yards from shore. All four started for shore. Two reached shore. The insured, a strong swimmer, called for help and was seen afloat about 50 yards from the bank for 10 or 15 minutes before disappearing from view. There is evidence that he became entangled in a trot line as he neared shore. In Oklahoma, unlike Texas, the burden of proof is on the insurance company to show that the death is within the exclusion. We note that the court, in permitting recovery, relied on McDaniel v. Standard Accident Insurance Company, 221 F.2d 171 (7th Cir. 1955), and Eschweiler v. General Accident Fire & Life Assurance Corp., 241 F.2d 101 (7th Cir. 1957), both eases dealing with exclusions relating to injuries occurring while in or on aircraft. The facts in Hollingsworth are quite different from those surrounding Goodman’s death and we do not consider it persuasive in the case before us.

The rationale of the remaining cases is set out in the court’s opinion in Neel v. Mutual Life Ins. Co. of New York, supra. In Neel, the insured pilot took off in a plane known to be in good condition. A witness testified that the insured fastened his seat belt. Sixteen days later he was found floating in the ocean. The coroner found no evidence of broken bones or other physical injury and the cause of death was assumed to be drowning. The plane was later recovered with the wings intact to the fuselage. The seat belt was unfastened. In holding for the insurance carrier, the court stated:

. it seems quite contrary to the natural meaning of the proviso to say that Stubbs did not meet his death from “participation in aeronautics” merely because he may not have been killed by impact upon the water. If he landed in the open sea, even though without immediate injury, drowning was an almost inevitable consequence. To say that his death did not result “from participation in aeronautics" would exclude from the proviso of the policy the most ordinary risks involved and limit the effect of the clause in an unexpected and unreasonable way.
The trial judge was plainly right when he said; “The law will not split the chain of causation but will recognize that the landing of the decedent’s plane in the ocean, an unsafe place for a land plane and its occupant, is the real cause of his death, and that participation in aeronautics was the cause.”

In Elliott v. Massachusetts Mutual Life Insurance Company, supra, the insured drowned after parachuting from his aircraft. It was stipulated that when he sought to disentangle the parachute shroud lines from his ankle while he was in the sea, his life preserver shifted making it difficult for him to raise his head above the surface of the water. The language of the two exclusions in Elliott is similar to the language of the exclusion of the policy before us. The Elliott provision dealing with the face amount of the policy provides that the following risk is not covered by the policy:

“Death resulting from travel or flight in, or descent from or with, any kind of aircraft aboard which the insured is a pilot or member of the crew * * * or has any duty incident to the operation of said aircraft.”

One of the exceptions to the double indemnity portion of the Elliott policy provides:

“The benefits under this provision shall not be payable if the death of the insured shall have resulted directly or indirectly from: * * * (4) travel or flight in, or descent from or with, any kind of aircraft aboard which the insured is a pilot or member of the crew or is a student or instructor of aeronautics or is giving or receiving any kind of training or instruetion or has any duty incident to the operation of said aircraft.”

The court in Elliott held that each clause is intended to exclude the risks of aviation and that “death by drowning after escaping from an airplane downed in the ocean results from a risk of flight against which the clauses are directed.”

After a study of the cited cases, including the facts and the language of the aircraft exclusion in each case, and after a review of the evidence in the case before us, considering it in the light most favorable to plaintiff and disregarding all unfavorable evidence and inferences, we conclude that plaintiff has failed as a matter of law to sustain her burden of proving that the insured Goodman did not die as a result of activities excluded in the policy before us. We find that there is no evidence to support the jury findings that Goodman reached a position of potential safety after the plane contacted the water and before his death or that Goodman’s death did not occur as a result of operating, riding in or descending from the aircraft.

We further find that testimony concerning the lack of visible ante mortem trauma to Mclnroe’s body, together with the opinion testimony of Dr. Valentiejus and of Dr. Snyder that Mclnroe’s body probably would have shown signs of ante mortem trauma if there had been a severe impact at the time the aircraft contacted the water, is some evidence to support the jury finding that the aircraft contacted the water with insufficient force to cause disabling or fatal injuries to Jack Goodman. There is no evidence to the contrary. We conclude, after a consideration of all the evidence, that the evidence is factually sufficient to support both that jury finding and the finding that Jack Goodman drowned.

Both parties tried the case on the apparent assumption that the plane went down in Lake Michigan. Nevertheless, no trace of the plane has been seen since it took off from the Springfield airport. The bodies of Goodman and Corbell have never been found. The record is devoid of evidence showing why the plane went down or, except for the condition of Mclnroe’s body, the manner in which it contacted and entered the water. There is no evidence concerning the time the plane remained afloat, if it did. In expressing belief that the occupants probably escaped the aircraft, Dr. Snyder made no assumption and expressed no opinion concerning how long the plane stayed afloat. Even if the opinion of Dr. Snyder should be considered as some evidence that the occupants escaped the aircraft, we conclude, after a consideration of the entire record, that the evidence is factually insufficient to support the finding that they did escape.

By cross-point plaintiff contends that the trial court erred in refusing to allow in evidence a letter which was written by the defendant insurance company’s claims manager and which plaintiff claims construes the exclusionary provision of the policy. We overrule that cross-point. The clause in question is not ambiguous. It is fundamental that parol evidence will not be received except to explain an ambiguity, and that it will not be received to create ambiguity where none existed before. Lewis v. East Texas Finance Company, 136 Tex. 149, 146 S.W.2d 977 (1941); Universal C.I.T. Credit Corp. v. Daniel, 160 Tex. 513, 243 S.W.2d 154 (1951); McMahon v. Christ-mann, 157 Tex. 403, 303 S.W.2d 341 (1957). Further, if the letter was offered as an admission concerning the legal effect of the language of the clause in question it is not admissible. Conclusions of law are not admissible as admissions by a party. Lasiter v. Washington Insurance Company, 412 F.2d 594, 597 (5th Cir. 1969). See also National Union Fire Ins. Co. of Pittsburgh v. Richards, 290 S.W. 912 (Tex.Civ.App.— Waco 1927, no writ).

The foregoing holdings are dispositive of the case before us. We do not reach defendant’s remaining points of error or plaintiff’s cross-points relating to the submission of special issues.

It is stipulated that a single payment of $16,320 was made as the first year’s premium on the life insurance policy in question. By terms of the policy, plaintiff's recovery is limited to that amount. The judgment of the trial court granting recovery for the face amount of the policy is reversed and judgment is here rendered that plaintiff recover the amount of the premium paid in the sum of $16,320.


author: O’QUINN, Justice.

text:
    John Dale WEAVER, M. D., et ux., Appellants, v. CITY OF SUNSET VALLEY, Appellee.
    No. 12375.
    Court of Civil Appeals of Texas, Austin.
    March 10, 1976.
    Rehearing Denied March 31, 1976.
    H. Glenn Cortez, Austin, for appellants.
    J. C. Hinsley, Austin, for appellee.
   O’QUINN, Justice.

John Dale Weaver and wife, Charlotte, filed this suit on March 27, 1975, seeking a declaratory judgment to set aside two ordinances passed by the governing body of the City of Sunset Valley on August 22, 1963, by which real property owned by plaintiffs was annexed to the municipality.

Sunset Valley answered, pleading among other defenses that the action, brought more than eleven years after passage of the ordinances, was barred by the four year statute of limitations. (Art. 5529, V.A.T. S.).

After hearing on special exceptions and pleas in abatement filed by Sunset Valley, the trial court sustained certain pleas, including the pleas that suit was barred by the four year statute of limitations, and dismissed the cause.

Weaver and wife appealed and bring five points of error. Under their fourth point of error appellants contend: “The trial court erred in holding that this suit is barred by limitations in that limitations does not bar a cause of action which may have been brought by an entity not barred by limitations.” We overrule this point and will affirm the judgment of the trial.court.

By proper pleadings Sunset Valley invoked provisions of Article 5529, as follows: “Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.”

Appellants contend that at the time the annexation ordinances became effective in September of 1963 the Municipal Annexation Act of 1963 “had established the superseding extraterritorial jurisdiction of the City of Austin” as to the area annexed by Sunset Valley. Art. 970a, V.A.C.S. (Acts 1963, 58th Leg., p. 447, ch. 160). Appellants argue that the annexations by Sunset Valley were in violation of Article 970a because they encroached upon territory within Austin’s jurisdiction, “without consent of said city, and without a judicial apportionment thereof.”

Appellants urge that the four year limitation prescribed by Article 5529 would be inapplicable to the City of Austin in bringing an action to set aside the Sunset Valley annexations by reason of the exemption found in Article 5517, V.A.C.S., that the “right of incorporated cities . shall not be barred by any of the provisions of . [Title 91, Limitations].”

The parties join issue on appellants’ contention, as stated in their brief, that “In this case the Appellants are vindication [vindicating] a right which the City of Austin could have asserted, namely, the invalidity of the annexation for encroachment upon the extraterritorial jurisdiction of the City of Austin. Thus the Appellants are not barred by limitations, to the same extent that the City of Austin would not have been barred.”

For support of this position appellants rely on decisions in Atmar v. Magee, 264 S.W.2d 507 (Tex.Civ.App. Galveston 1954, no writ), Eidelbach v. Davis, 99 S.W.2d 1067 (Tex.Civ.App. Beaumont 1936, writ dism’d), and Spencer v. Levy, 173 S.W. 550 (Tex.Civ. App. Austin 1914, writ ref.). Appellants say that these cases stand for the proposition that “Where a person claims under a right given to an agency which is not bound by limitations, ‘such right would not be subject to bar of the statute of limitations.’ ”

We do not find appellants’ conclusion supported by these cases. In Atmar v. Magee the court stated that “the defendants did not plead the four-year statute of limitations.” (264 S.W.2d 510, col. 2) The subsequent statement of that court that insofar as plaintiffs may have been authorized as members of the public “to vindicate the right of the public to have encroachments upon a public easement, or to have a public nuisance upon such easement removed, such right would not be subject to the bar of statutes of limitations,” is mere dictum and lacks the force of an adjudication. Moreover, for support of the statement, that court cited Eidelbach v. Davis, supra, which held individuals barred by limitation as to street obstructions erected more than four years prior to suit.

The court in Atmar v. Magee held that since the street encroachment complained of did not adversely affect the value of plaintiffs’ property, they suffered no special injury other than that suffered by the general public, because of which they were without right to relief by mandatory injunction to remove the encroachment. The court relied on the settled doctrine found in Burrow v. Davis, 226 S.W.2d 199 (Tex.Civ. App. Amarillo 1949, writ ref. n. r. e.), that an individual may not maintain a suit to remove encroachments from public streets unless the person has suffered special injury other than that suffered by the public at large.

There is no authority in Atmar or Eidelbach for appellants’ position that the rights of individuals, as members of the public to vindicate the interest which the public might have asserted to remove encroachments or abate nuisances on public easements, are not subject bar by the statute of limitations. Nor is there authority in either case to authorize individuals generally to succeed to rights of municipalities to bring actions free of the bar by limitations in instances where such action if brought by the municipality would not be barred.

Spencer v. Levy, supra, the third ease relied on by appellants, involved an attempt to acquire title by limitation to part of a public street. The court decided that the meaning of the statute “ . . .is that limitation as to a street does not run in favor of any person nor against any person.” (173 S.W. 557, col. 2)

An earlier case cited by the court in Spencer construed the statute as “ . only intended to protect the city and the public against the loss of the use of a street by adverse possession under the statutes of limitation, and ... it does not protect the owner of the fee against such adverse possession.” Cocke v. Texas & N. O. R. Co., 46 Tex.Civ.App. 363, 103 S.W. 407, 409 (Galveston 1907, writ ref.). The statute under construction (Art. 3200, R.S.1895) was the forebear of Article 5517.

The provisions of Articles 5529 and 5517 have been under examination many times by the courts of this state, and we have not discovered in this body of case law any holding that would extend to private individuals the same exemption from the statutes of limitations that Article 5517 extends to municipalities, regardless of what right the individual sought to enforce. Appellants’ position is untenable and not supported by any decision brought to our attention or authority examined in this connection.

Appellants also contend that if the statute of limitations is applied to them and would not be applicable to the City of Austin, such holding would be in violation of equal protection under the Fourteenth Amendment of the Constitution of the United States. We find the contention without merit. City of Port Arthur v. Tillman, 398 S.W .2d 750, 753 (Tex.Sup.1965; app. dism’d, 384 U.S. 315, 86 S.Ct. 1588, 16 L.Ed.2d 586).

Since we hold that this suit is barred by limitations, we do not reach the other issues raised by appellants.

Judgment of the trial court is in all things affirmed.

Affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    CLASSIFIED PARKING SYSTEMS, Appellant, v. Ron DANSEREAU, Appellee.
    No. 1231.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 10, 1976.

      Jim B. Craft; Soape, Foster & Halla, Houston, for appellant.
    John Mustachio, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is a bailment case.

Ron Dansereau (appellee) filed suit against Classified Parking Systems (Classified or appellant) to recover for the loss of his car, which was stolen from a parking lot owned and operated by Classified. After a non-jury trial, the trial court awarded Dan-sereau $3,000 in damages. Classified has appealed.

For a fee of $10 Dansereau was to be allowed to park from approximately the middle of August, 1970 to the end of September in a downtown Houston parking lot owned by Classified. Dansereau testified that he generally arrived at the lot around 8:00 a. m. Sometimes he parked the car himself, sometimes he let the attendant on duty park it. He was always obliged to leave his keys in the car, a 1970 Plymouth. He generally returned for his car around 5:35 p. m. On September 14, 1970, Danser-eau parked his car in the lot as usual. When he returned for the car around 5:35 p. m., it was gone. The car was returned to him by police some weeks later, stripped of its engine, transmission, wheels, and various accessory items, and with the body somewhat damaged. It is not contested that the car was stolen from the lot on September 14, 1970.

Appellant presents numerous points of error. The sixth and twenty-eighth points assert that the judgment was erroneous because appellee failed to produce any evidence of negligence on the part of appellant.

In a bailment case, the bailor makes a presumptive case of negligence by proving the bailment and the failure of the bailee to return the goods. Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157, 159 (1951). The general rule is that:

“[I]n order to rebut the presumption of his negligence, the defaulting bailee must show how the loss occurred and that it was due to some other cause than his own neglect or negligence or that, however the loss occurred, it was not due to his negligence.” Buchanan v. Byrd, 519 S.W.2d 841, 844 (Tex.Sup.1975).

Appellant asserts, however, that the instant case falls within an exception to the above general rule. Numerous Texas courts, including this one, have held that mere proof of loss of the bailed property by theft or fire, without proof of causation or the exercise by the bailee of due care, is sufficient to rebut the presumption of the bailee’s negligence. See, e. g., Allright, Inc. v. Brubaker, 473 S.W.2d 593, 594 (Tex.Civ. App. — Houston [14th Dist.] 1971, no writ) (theft); Allright, Inc. v. De Wint, 487 S.W.2d 182, 184 (Tex.Civ.App. — Houston [1st Dist.] 1972, no writ) (theft); Mustang Aviation, Inc. v. Ridgway, 231 S.W.2d 677, 678 (Tex.Civ.App. — Dallas 1950, writ ref’d) (fire); Exporters’ & Traders’ Compress & Warehouse Co. v. Schulze, 265 S.W. 133, 134-35 (Tex.Comm’n App.1924, jdgmt. adopted) (fire). However, in the recent ease of Buchanan v. Byrd, 519 S.W.2d 841, 844 (Tex.Sup.1975) our supreme court stated:

“[T]he rule applied in Texas fire and theft cases is contrary to the weight and trend of modern authorities. See 8 Am. Jur.2d, Bailments §§ 321, 1211 and 44 A.L.R.3d 190. We are convinced that the rule should be reexamined in an appropriate case instead of extending its application to other types of bailment losses.”

We take this opportunity to reexamine, and reject, our former allegiance to the so-called “fire and theft” exception to the general rule. We agree that:

“This rule which permits a bailee’s negligence to be presumed was fathered by necessity. As viewed by the Texas courts, the sole reason for its existence is a bailor’s need of aid in proving a just cause of action. Little aid is provided if a negligent bailee can discharge his burden of producing evidence by showing only the bare fact of loss by fire or theft.” Comment, Presumptions and the Burden of Proving a Bailee’s Negligence, 31 Texas L.Rev. 46, 55 (1952).

This more modern — and in our opinion more enlightened — view is not without support in prior Texas cases. See Rhodes v. Turner, 171 S.W.2d 208 (Tex.Civ.App. — Ft. Worth), Motion for Leave to File Petition for Mandamus Overruled Sub Nom. Rhodes v. McDonald, 141 Tex. 478, 172 S.W.2d 972 (1943); Callihan v. Montrief, 71 S.W.2d 564 (Tex. Civ.App. — Fort Worth 1934, writ ref’d).

In the present case appellee made a presumptive case of negligence by proving the bailment and the failure of appellant to return the car to him. Appellant failed to offer any testimony that showed its own lack of negligence, and therefore failed to rebut the presumption of negligence.

Appellant’s points thirty through thirty-four assert that the pleadings upon which appellee went to trial were insufficient to support various findings of fact and conclusions of law regarding negligence and damages, or to support the judgment. With regard to the pleading of negligence, our holding that the presumption of bailee’s negligence was not destroyed by proof that the car was stolen obviates the need to plead negligence. All that is needed is to allege the bailment and the failure to return the car or its return in a damaged condition. Huie v. Lay, 170 S.W.2d 823 (Tex.Civ.App. — Amarillo 1943, no writ). Moreover, it does not appear that appellant filed any written motion or exception to appellee’s First Amended Original Petition, as required by Tex.R.Civ.P. 90. Any defect which may have been contained in that pleading has therefore been waived by appellant. Accordingly, points thirty through thirty-four are overruled.

The remaining points have been examined and found to be without merit. All of appellant’s points of error being overruled, the judgment of the trial court is affirmed.

Affirmed.


author: COULSON, Justice.

text:
    Johnny RUMFOLO et al., Appellants, v. STATE of Texas, Appellee.
    No. 1299.
    Court of Civil Appeals of Texas, Houston (14th Dist.)
    March 10, 1976.
    Rehearing Denied April 7, 1976.

      Joe S. Maida, Houston, for appellants.
    Carol S. Vance, Dist. Atty., Robert C. Bennett, Jr., Asst. Dist. Atty., Houston, for appellee.
   COULSON, Justice.

This suit was brought by the State of Texas to declare a forfeiture of cash claimed as gambling proceeds. Pursuant to Article 18.18 of the Texas Code of Criminal Procedure (hereafter referred to as Article 18.18), the State sought a forfeiture of $3,920. Following a raid on a dice game, Houston police seized the cash from several individuals at the game. By order of the County Civil Court at Law of Harris County the cash was forfeited to the State as gambling proceeds. Those individuals from whom the cash was seized and forfeited have perfected this appeal. We reverse for the reasons set forth below.

On March 12, 1975, Appellants Louis Thomas Adams, George Colonetta, Cullen Duoto, Vernon Duoto, Mike Jamail, Charles Messena, and Johnny Rumfolo were engaged in a dice game at 1506 Tabor Street. Also present was an undercover policeman, C. D. Schumate. Other police, led by Officer Troy R. Driscoll, raided the game. Dris-coll and his men knew that Schumate was present at the game. They had a search warrant for 1509 Tabor Street. After entering the premises at 1506 Tabor Street, they searched the participants and seized cash from the individuals’ pants pockets and from one person’s sock. Schumate remained in the background not making any arrests, searches or seizures.

A signal had been prearranged for Schu-mate to step outside by 11:00 p. m. so that Driscoll and his men would know to begin the raid. Schumate lost track of time and did not step outside as planned. Driscoll became concerned for Schumate’s safety and entered the apartment at approximately 11:15 p. m.

Cullen Duoto observed the police through a window before they entered and alerted those at the game. By the time the police entered, all of the money used in the game had been pocketed or socked away. Schu-mate had participated in the game with bills which had had their serial numbers recorded beforehand. Checks in varying amounts were also seized.

The applicable portions of Article 18.18 provide:

(a) Following the final conviction of a person for possession of a gambling device or equipment, altered gambling equipment, or gambling paraphernalia, for an offense involving a criminal instrument, or an offense involving a prohibited weapon, the court entering the judgment of conviction shall order that the machine, device, gambling equipment or gambling paraphernalia, instrument, or weapon be destroyed or forfeited to the state. If forfeited, the court shall order the contraband delivered to the state, any political subdivision of the state, or to any state institution or agency. If gambling proceeds were seized, the court shall order them forfeited to the state and shall transmit them to the grand jury of the county in which they were seized for use in investigating alleged violations of the Penal Code, or to the state, any political subdivision of the state, or to any state institution or agency.
(b) If there is no prosecution or conviction following seizure, the magistrate to whom the return was made shall notify in writing the person found in possession of the alleged gambling device or equipment, altered gambling equipment or gambling paraphernalia, gambling proceeds, prohibited weapon, or criminal instrument to show cause why the property seized should not be destroyed or the proceeds forfeited. .
(f) If a person timely appears to show cause why the property or proceeds should not be destroyed or forfeited, the magistrate shall conduct a hearing on the issue and determine the nature of property or proceeds and the person’s interest therein. Unless the person proves by a preponderance of the evidence that the property or proceeds is not gambling equipment, altered gambling equipment, gambling paraphernalia, gambling device, gambling proceeds, prohibited weapon, or criminal instrument, and that he is entitled to possession, the magistrate shall dispose of the property or proceeds in accordance with Paragraph (a) of this article.

Return was made to the Justice Court. There was no prosecution or conviction following the seizure of the monies and the Justice Court proceeded accordingly under paragraph (b) of Article 18.18. Appeal by trial de novo was brought to the County Court at Law. See Tex.Code Crim. Procedure art. 44.17 (1966). A hearing was conducted pursuant to paragraph (f) of Article 18.18. The trial court ordered all cash to be forfeited to the State, except for the $664 found in Donald F. West’s sock. All checks were returned to the individuals from whom they were seized by the trial court’s order.

Forfeiture proceedings are of a quasi-criminal nature. As succinctly stated by the Supreme Court, “Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law.” One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 700, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965). See also In re 1972 Porsche 2 Dr., ‘74 Florida License Tag ID 91780, 307 So.2d 451 (Fla.Ct.App.1975); State v. Merchandise Seized, 225 N.W.2d 921 (Iowa 1975). The effect of a forfeiture proceeding is highly penal and statutes authorizing forfeitures of property are subject to careful scrutiny. United States v. One 1970 Buick Riviera, Serial No. 949870H920701, 374 F.Supp. 277, 279 (D.Minn.1973); Reeder v. State ex rel. Myers, 294 Ala. 260, 314 So.2d 853 (1975). Article 18.18, providing for forfeiture proceedings, and Article 44.17, providing for the appeal of an initial forfeiture proceeding, are both contained within the Code of Criminal Procedure. The posture of these statutes within our statutory framework indicates the quasi-criminal nature of forfeiture proceedings.

Nonetheless, forfeitures also partake of a civil action nature. They are hybrid in character, possessing both criminal and civil qualities. The Constitution’s Fourth Amendment protection against unreasonable searches and seizures and the Fifth Amendment privilege against self-incrimination apply to forfeiture proceedings. Berkowitz v. United States, 340 F.2d 168 (1st Cir. 1965); Doherty v. United States, 500 F.2d 540, 544 (Ct.Cl.1974); One 1970 Chevrolet Motor Vehicle v. County of Nye, 518 P.2d 38, 39 (Nev.1974). All of the constitutional protections that attach in criminal proceedings do not attach to forfeitures. Double jeopardy does not attach. Doherty, supra.

Cognizant of the quasi-criminal nature of this forfeiture proceeding and our duty to closely scrutinize it, we turn first to the search.

The search warrant particularly described the premises to be searched as a residence at 1509 Tabor St., Houston, Harris County, Texas. The search was conducted at 1506 Tabor Street.

Where the premises sought to be searched are described by a certain street number, obviously such a description will not authorize a search of some other street number . . ..

Ervin v. State, 165 Tex.Cr.R. 391, 307 S.W.2d 955, 956 (1957), quoting from Cornelius on Search and Seizure, p. 320; Balch v. State, 134 Tex.Cr.R. 327, 115 S.W.2d 676, 677 (1938). There can be no question that the search warrant was invalid as to 1506 Tabor Street. The question remains whether the search can be sustained on another valid ground.

Article 14.01(b) of the Texas Code of Criminal Procedure gives a peace officer the right to arrest, without a warrant, any offender for an offense committed within his presence. The State contends that Schumate could have arrested the appellants because they were gambling in his presence. Furthermore, the State argues that Schumate could have conducted searches incident to the arrests he could have made. This may well be true. But it is not true that, as the State claims, Driscoll and his men could have conducted any searches or made any arrests that Schumate could have. No offenses were committed in their presence. It is true that an officer possessing sufficient knowledge to constitute probable cause for an arrest may communicate' to the arresting officer only such information necessary to identify who was wanted, and the subsequent arrest will be valid. McDuff v. State, 431 S.W.2d 547, (Tex.Crim.App.1968); Weeks v. State, 417 S.W.2d 716 (Tex.Crim.App.1967). In this case, there was no communication from Schumate, the officer possessing sufficient probable cause to make an arrest, to Dris-coll and his men, the arresting officers. In fact, it was Schumate’s lack of communication that led to the arrests. Schumate did not communicate any information to the arresting officers. Consequently any searches made incident to their arrests were invalid.

The arresting officers may have had some other basis constituting probable cause to validate these arrests and searches. However, in view of our construction of Article 18.18, we need not explore further the question of probable cause.

More fundamental than the question of probable cause is the question of Article 18.18’s constitutionality. Article 18.18 places the burden of proof on the person found in possession of the property to show cause why the property should not be forfeited. Such placement of the burden of proof amounts to a denial of due process.

The Fourteenth Amendment of the Constitution guarantees due process, as does the Texas Constitution by the term “due course of law” in Article 1, § 19. In that connection, we agree with the Supreme Court of Ohio’s following analysis:

A statute subjecting property which is lawful in its ordinary and proper use to forfeiture if used in an unlawful manner is valid only if the forfeiture is perfected in a manner consistent with the procedural due process requirements guaranteed by both the Ohio and the United States constitutions.

Sensenbrenner v. Crosby, 37 Ohio St.2d 43, 306 N.E.2d 413, 414 (1974). Just as Ohio’s forfeiture proceedings must comport with the Ohio and United States constitutions, so must Article 18.18 comport with due process as guaranteed by the Texas and United States constitutions.

Due process requires a placing of the burden of proof upon the party seeking a forfeiture of another party’s claimed right, where the right claimed is of high importance. Gunn v. Cavanaugh, 391 S.W.2d 723, 726-727 (Tex.Sup.1965). To place the burden of proof upon the party claiming a right of high importance that others seek to forfeit is a denial of due process. Property rights are, in our opinion, of sufficiently high importance to require placement of the burden of proof on the State when forfeiture of lawful property is sought in a quasi-criminal procedure.

To require a standard of proof on the State less than the “beyond a reasonable doubt” standard in criminal cases is a denial of due process. In re Winship, 397 U.S. 358, 364-365, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In a quasi-criminal forfeiture proceeding, however, a standard less than the “reasonable doubt” standard does not deny due process. Bramble v. Richardson, 498 F.2d 968, 973 (10th Cir. 1974). See also State v. Rossitto, 331 A.2d 385 (Del.1974); State v. Rodriquez, 130 N.J.Super. 57, 324 A.2d 911 (Super.Ct., App.Div.1974). Due process, as guaranteed by the Texas and the United States constitutions, requires, at the very least, that the State prove by a preponderance of the evidence that the property sought to be forfeited was used in an illegal manner, where that property is derivative contraband. Articles which are not inherently illegal but are used in an illegal manner comprise derivative contraband. If the property is contraband per se, those items whose possession alone constitutes a criminal offense, then a forfeiture proceeding is not necessary. People v. Steskal, 55 Ill.2d 157, 302 N.E.2d 321, 323 (1973).

Paragraphs (b) and (f) of Article 18.18 place the burden of proof in forfeiture proceedings on the party found in possession of lawful property to show cause why it should not be forfeited. This statutory scheme is an unconstitutional denial of due process under the Texas and United States constitutions. Article 18.18, paragraphs (b) and (f) are unconstitutional and the forfeiture proceedings conducted thereunder, and with which we are here concerned, are likewise unconstitutional and void.

We feel it imperative to note that in the United States, forfeiture exists only by virtue of statute. There is no common law forfeiture proceeding in Texas or the other states. Annot., 3 A.L.R.2d 738, 740 (1949).

The order of the trial court is reversed. It is rendered that the State return to each appellant the money seized from him.


text:
    D. A. W., Appellant, v. The STATE of Texas, Appellee.
    No. 1317.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 10, 1976.
    Rehearing Denied April 7, 1976.

      Robert A. Heath, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Chris A. Lor-enzen, Max Carlson, Asst. Dist. Attys., Houston, Harris County, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from an order of a juvenile court waiving its exclusive original jurisdiction and transferring a child to a district court for criminal proceedings.

In January 1975, four petitions were filed by the State of Texas (State or appellee) citing D.A.W. (appellant), a minor, for alleged acts of delinquent conduct. These petitions sought an adjudication of delinquency. Over the course of the next few months, the case was reset numerous times and citations were served on D.A.W. and his grandmother on several occasions. On June 26 new petitions were filed in two of the four docket numbers. These petitions were identical to those previously filed, except that in the prayer the State asked the court to consider discretionary transfer to criminal district court, as provided for in Tex. Family Code Ann. § 54.02 (1974). New citations were served on the grandmother in both of these cases, and on D.A.W. in one. Neither these last citations nor any of the others that had been served on D.A.W. and his grandmother advised them that the hearing to which they were summoned was for the purpose of considering discretionary transfer to criminal court. On August 6, 1975, a hearing was held, and on the same date an order was signed by the juvenile court judge waiving jurisdiction and transferring D.A.W. to criminal district court. D.A.W. has appealed from that order.

Section 54.02(b) of the Family Code provides:

(b) The petition and notice requirements of Sections 53.04, 53.05, 53.06, and 53.07 of this code must be satisfied, and the summons must state that the hearing is for the purpose of considering discretionary transfer to criminal court.

The courts have required strict compliance with these provisions. See In re T.T.W., 532 S.W.2d 418 (Tex.Civ.App.Texarkana, 1976, no writ); In re M.W., 523 S.W.2d 513 (Tex.Civ.App.—El Paso 1975, no writ); In re K.W.S., 521 S.W.2d 890 (Tex.Civ.App.— Beaumont 1975, no writ); R.K.M. v. State, 520 S.W.2d 878 (Tex.Civ.App.—San Antonio 1975, no writ); cf. In re D.L.C., 533 S.W.2d 157 (Tex.Civ.App.—Austin, 1976, no writ). Specifically, it has been held that a summons which does not state that the hearing is for the purpose of considering discretionary transfer to criminal court is fatally defective. See In re K.W.S., supra ; R.K.M. v. State, supra.

Conceding that the language relating to discretionary transfer to criminal court should have appeared on the citation, appellee nonetheless argues that appellant waived this defect by appearing voluntarily at the hearing and by indicating at the hearing that he was aware of the nature of the proceedings. Although § 53.06(e) prohibits the child’s waiving of service of summons (see In re M.W., supra), there is apparently nothing to prevent a child from waiving a defect in the summons. Waiver of rights granted to a child is covered by § 51.09:

§ 51.09. Waiver of Rights
Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:
(1) the waiver is made by the the child and the attorney for the child;
(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
(3) the waiver is voluntary; and
(4) the waiver is made in writing or in court proceedings that are recorded.

In the instant case the only circumstance that could possibly be construed as an attempt to elicit a waiver is the following conversation:

THE COURT: Are you D.A.W.?
D.A.W.: Yes sir.
THE COURT: Is that your name?
D.A.W.: Yes, sir.
THE COURT: D., do you understand the allegations that have been made against you?
D.A.W.: Yes, sir.
THE COURT: Do you understand the nature and the possible consequences of this proceeding?
D.A.W.: Yes, sir.
THE COURT: And do you understand that you need not testify against yourself in this case; you need not testify unless you wish to do so of your own free will and accord? Do you understand that? D.A.W.: Yes, sir.
THE COURT: Do you also understand that your attorney will require that witnesses take the stand and be confronted by the attorneys in' this case and will have the right to cross examine them? Do you understand that?
D.A.W.: Yes, sir.
THE COURT: All right. Let’s proceed.

The above dialogue' does not reflect that the appellant actually understood the nature and possible consequences of the proceeding, or that the waiver was voluntary, or even that the appellant was aware that he had a right that could be waived. Clearly ? 51.09 contemplates an affirmative waiver i/y the child, not merely participation in — or la. ⅛ of a proper objection to — the proceeding See In re K.W.S., supra. No such waiver appears from this record.

Appellant’s contention that he cannot be retried because jeopardy has attached is without merit. The case of Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), upon which appellant principally relies for this contention, requires that transfer hearings be held prior to adjudicatory hearings. This was done in the instant case, and the transfer hearing that was held could have resulted neither in an adjudication that appellant had violated a criminal law nor in a substantial deprivation of liberty. Therefore, jeopardy has not attached.

The order of the juvenile court waiving jurisdiction is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


author: HALL, Justice.

text:
    AMERICAN AMICABLE LIFE INSURANCE COMPANY, Appellant, v. JAY’S AIR CONDITIONING AND HEATING, INC., Appellee.
    No. 5517.
    Court of Civil Appeals of Texas, Waco.
    March 11, 1976.
    Rehearing Denied April 8, 1976.

      DeLange, Hudspeth, Pitman & Katz, Eugene Pitman, Houston, Ferguson & Ferguson, Russell G. Ferguson, Austin, for appellant.
    Daugherty, Kuperman & Golden, David I. Kuperman and James 0. Guleke, II, Austin, for appellee.
   HALL, Justice.

Under contract dated October 24, 1972, with a partnership known as S.S.&F. Enterprises (hereinafter “S.S.&F.”), Jay’s Air Conditioning And Heating, Inc., the appel-lee, sold and installed air conditioning and heating units in apartments being constructed by S.S.&F. on several tracts of land in the City of Austin owned by S.S. &F., including 56 units and 40 units, respectively, on the two tracts in question.

S.S.&F. had previously arranged for interim financing of the construction with the Greenway Bank & Trust Of Houston, and executed its promissory note and deed of trust lien on the two tracts in favor of the bank, on August 28, 1972. The note was later assigned to the appellant, American-Amicable Life Insurance Company, by the Bank in December, 1973; and, on December 17, 1973, a renewal note and another deed of trust on the two tracts securing the note were executed by S.S.&F. in favor of the appellant. Subsequently, this lien was foreclosed by the appellant, and it purchased the two tracts at a public sale held by the trustee on October 1, 1974.

Jay’s brought this suit against S.S.&F. and the partners, jointly and severally, to recover the balance allegedly due to Jay’s under its contract, for foreclosure of a mechanic’s and materialman’s lien, and for an order of sale on certain elements of the air conditioning units which it asserted did not become a permanent part of the improvements and were removable without material injury to the realty. Jay’s also joined the appellant as a defendant, seeking in effect, a declaration that its mechanic’s and mate-rialman’s lien is superior to the appellant’s interest in the property and a foreclosure of the lien on the two tracts.

After a trial without a jury, judgment was rendered awarding Jay’s a recovery against S.S.&F. and the individual partners for $8,620 on the contract, plus $3,000 attorney’s fees; foreclosing a mechanic’s and materialmen’s lien in favor of Jay’s on the two tracts in question upon which the 96 apartments are constructed; decreeing an order of sale in Jay’s favor for the removal and sale of the compressors and air-handling units in each of the air conditioning units installed by it in the apartments; and a recovery in favor of the appellant on its pleadings against S.S.&F. and the partners for any amount that the appellant “may be obligated to pay in behalf of [S.S.&F.] to prevent foreclosure of its property.”

S.S.&F. did not appeal.

Article XVI, Sec. 37, Vernon’s Tex.Const., gives mechanics and material-men of every class a lien on buildings and articles on which they labor or for which they furnish materials, and specifies that the Legislature shall provide by law for the speedy and efficient enforcement of the lien. The lien granted therein is self-executing as between the owner and the laborers and materialmen who contract directly with the owner, without need of any statutory provisions. Strang v. Pray, 89 Tex. 525, 35 S.W. 1054, 1056 (1896); Hayek v. Western Steel Co. (Tex.Sup., 1972), 478 S.W.2d 786, 789. Pursuant to the mandate set forth therein, the Legislature has enacted Articles 5452, et seq., Vernon’s Ann.Tex.Civ.St., prescribing the lien, and providing for the securing, priority, and enforcement of it. Sec. 1 of Article 5459, dealing with the priority and enforcement of the lien, has been interpreted to mean that the lien is superior to a prior recorded deed of trust lien where the improvements made can be removed without material injury to the land and preexisting improvements, or to the improvements removed. First National Bank In Dallas v. Whirlpool Corp. (Tex. Sup., 1975), 517 S.W.2d 262, 269.

The appellant asserts that the evidence conclusively shows that Jay’s claims under its contract with S.S.&F. were paid in full from a particular source; or that, alternatively, the evidence is factually insufficient to overcome the appellant’s pleadings and proof of such payment. For these reasons, it says that the judgment of foreclosure of a mechanic’s and materialman’s lien in favor of Jay’s on the tracts in question is erroneous. We overrule these contentions.

On the two tracts in question, S.S.&F. constructed the “Patton Lane Apartments” and the “Rundberg II” apartments. The Greenway Bank provided interim financing for four of S.S.&F.’s projects, and these included the Patton Lane Apartments and the Rundberg II Apartments. There is evidence that Greenway Bank funded each project separately except Patton Lane and Rundberg II; that Patton Lane and Rund-berg II were jointly funded out of S.S.&F.’s single account number 126-748 with the bank which S.S.&F. and the bank designated the “Patton Lane Apartments” account; that more than $8,620 from this account was paid by S.S.&F. to Jay’s for work on apartments other than Patton Lane and Rundberg II; that Jay’s president knew that the Greenway Bank was S.S.&F.’s source of funds for the projects; and that Jay’s simply followed the “first in, first out” rule with payments received from S.S.&F. and applied all such payments to S.S.&F.’s oldest existing debt. There is no evidence that Jay’s was familiar with any arrangements between S.S.&F. and Green-way Bank for payments on the apartment construction; or that Jay’s ever agreed with the Greenway Bank or S.S.&F. or was ever instructed by S.S.&F. or anyone to apply the payments to a designated project. Additionally, there is evidence that until the early part of 1973, S.S.&F. paid Jay’s the exact amount of each draw Jay’s requested for its work; that at least $10,000 was paid to Jay’s with a check drawn on the Patton Lane Account with the Greenway Bank before work ever began on the Patton Lane Apartments; that, beginning in February, 1973, S.S.&F. discontinued this practice and thereafter made payments from time to time which did not correspond to any particular draw and for amounts less than what was owed to Jay’s on all of the various projects; that Jay’s applied the payments to the oldest debt; that on May 30, 1973, Jay’s sent its itemized statement for $21,811.00 to S.S.&F., being the total amount then due it on the various projects shown on the statement which included named projects other than Patton Lane and Northgate II; that S.S.&F. paid Jay’s this exact amount on June 13, 1973, with a check drawn on the Patton Lane Apartment’s account; that this payment brought S.S.&F. to an exactly current status, and that the only remaining uncompleted projects were the two projects upon which this suit is based; that, thereafter, S.S.&F. continued its irregular pattern of payments with Jay’s applying the payments to the oldest debt; and that this suit finally resulted, on Jay’s assertion that S.S.&F. failed to make full payment on the last two projects.

This evidence defeats the appellant’s contention that the record establishes as a matter of law that Jay’s claims in this lawsuit were paid in full from a particular source. Absent directions from S.S.&F., or some other agreement with S.S.&F. or with Greenway Bank binding upon S.S.&F., Jay’s was privileged to apply the random payments received from S.S.&F. to the oldest unpaid portion of S.S.&F.’s account, unless to do so was inequitable or unfair to S.S.&F. Aetna Casualty & Surety Co. v. Hawn Lumber Co., 128 Tex. 296, 97 S.W.2d 460, 465 (1936), Prowell v. Berry-Barnett Grocery Company, 462 S.W.2d 53, 54 (Tex. Civ.App. — Waco, 1971, writ ref.). It is significant that S.S.&F. has never complained about this application. Additionally, Jay’s was not privileged to apply any payment by S.S.&F. from any source to contracts or draws not yet due, in the absence of a special agreement to that effect binding on S.S.&F. 44 Tex.Jur.2d 695-696, Payments, § 40.

It is out further view from a study of the entire record that the findings contrary to the appellant’s contentions of full payment from a particular source are not against the great weight and preponderance of the evidence.

In § 1 of Article 5472e, Vernon’s Ann.Tex.Civ.St., the Legislature declares all funds paid to contractors and subcontractors under a construction contract for the improvement of specific real property, and all funds borrowed by a contractor, subcontractor, or owner for the purpose of improving such real property, which are secured in whole or in part by a lien on the specific property to be improved, to be “Trust Funds for the benefit of the artisans, laborers, mechanics, contractors, subcontractors or materialmen who may labor ■■ furnish labor or material for” the improvements; and constitutes the contractor, subcontractor, or owner receiving such funds “a Trustee” thereof. Contrary to the appellant’s position, this statute did not make the funds received by Jay’s from S.S.&F. “trust funds” for the benefit of the appellant, and Jay’s was not a trustee thereof for that purpose. The purpose of this statute is to protect materialmen and laborers, contractors and subcontractors; it does not create a trust for the benefit of interim or permanent lenders. Under our record, article 5472e actually gives Jay’s a preferred status over the appellant to the money borrowed by S.S.&F. from Greenway Bank and placed in the account in question. See, Panhandle Bank & Trust Co. v. Graybar Elec. Co., Inc., 492 S.W.2d 76, 81 (Tex.Civ.App. — Ama., 1973, writ ref., n. r. e.).

By way of requests for admissions directed only to S.S.&F., Jay’s made proof on the trial of every element of its cause of action against S.S.&F. Complete proof of this cause of action was made again by Jay’s in much greater detail without use of the admissions while its president was testifying. Accordingly, the appellant’s complaint that S.S.&F.’s admissions are not binding against the appellant is immaterial.

The appellant brings forward other points and contentions. Some are immaterial to the rights of the parties on this appeal. The others are without merit under the record. All are overruled.

The judgment is affirmed.


author: MOORE, Justice.

text:
    SOUTHWEST TEXAS METHODIST HOSPITAL, Appellant, v. Mary Louise MILLS, Appellee.
    No. 901.
    Court of Civil Appeals of Texas, Tyler.
    March 11, 1976.
    Rehearing Denied April 8, 1976.

      George H. Spencer, Clemens, Weiss, Spencer & Welmaker, San Antonio, for appellant.
    Donald J. Richard, Southers, Goldberg, Lyons & Huson, Inc., San Antonio, for ap-pellee.
   MOORE, Justice.

Plaintiff, Mary Louise Mills, instituted this suit against defendant, Southwest Texas Methodist Hospital, for damages for personal injuries alleged to have been sustained while she was a patient at defendant hospital. She alleged that she sustained an injury to her sciatic nerve caused by the negligence of a nurse employed by defendant in making a hypodermic injection. A jury trial resulted in a verdict and judgment in favor of plaintiff for the sum of $13,000, from which defendant has perfected this appeal.

The trial court submitted the cause to the jury upon three special issues. The issues, together with the jury’s verdict, were as follows: (1) Special Issue No. 1: Did Mary Louise Mills sustain an injury to her sciatic nerve as a result of an intramuscular injection while in the Defendant’s hospital on August 31,1972? Answer: Yes; (2) Special Issue No. 2: Was such injury to the sciatic nerve, inquired about in Issue No. 1, due to the negligence of Defendant, its agents, servants or employees? Answer: Yes; and (3) Special Issue No. 3: Was such negligence, if you have so found, a proximate cause of the injury, if any, to Mary Louise Mills? Answer: Yes. In connection with the special issues, the trial court instructed the jury as follows: “You are instructed that you may infer negligence by a party, but are not compelled to do so, if you find: (a) the character of the injury is such that it would ordinarily not happen in the absence of negligence; and (b) it is more reasonably probable that the injury was due to the negligence of such party than to any other possible cause; and (c) the instrumentality causing the injury was under the management of such party or its agents, servants or employees, at the time the negligence, if any, causing the injury probably occurred.”

By its first and fourth points of error, the hospital seeks a reversal on the grounds that (1) there was no evidence to support the jury’s finding of negligence on the part of appellant’s employees, (2) that appellee cannot, as a matter of law, recover on the theory that the doctrine of res ipsa loquitur is applicable, because the doctrine is not applicable to the facts, and (3) even if the doctrine of res ipsa is applicable, there is no evidence that the appellee sustained an injury to her sciatic nerve as a result of the hypodermic injection. In reply appellee argues that the jury’s finding of negligence may be sustained on both direct and circumstantial evidence, but if not, then the verdict can be sustained on the basis of the jury’s finding on Special Issue No. 1, together with the trial court’s instruction allowing the jury to find for the appellee upon the doctrine of res ipsa loquitur. In support of her contention, appellee relies upon Mobile Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974). We are not in accord with appellee’s contention. Upon the record before us, we have concluded that appellant’s points must be sustained. Accordingly, we reverse and render judgment in favor of the hospital.

The evidence shows that on the advice of her doctor, plaintiff was admitted to defendant hospital for a hysterectomy. At 6:00 a. m. on the morning of the operation, plaintiff was given a sedative orally. Then at 6:30 a. m., while sedated but still con-seious, plaintiff was given a pre-operative intramuscular hypodermic injection of dem-erol, phenergan and atropine in her left buttock by a nurse. Plaintiff testified that after the injection she felt a warm stinging sensation in her left leg. At 7:30 a. m. plaintiff was taken to the operating room and placed on the operating table in the lithotomy position, on her back with her feet elevated and knees flexed. Her legs were suspended by the use of stirrups. According to the testimony of Dr. Marasovich the hysterectomy was performed without incident. Following the operation, plaintiff was given injections in the left buttock at 10:45 a. m., 12:00 noon and 4:00 p. m. Prior to the operation, plaintiff had no difficulty in the use of her left leg. Shortly after 4:00 p. m., however, plaintiff complained to the nurses and Dr. Marasovich of numbness in her left leg. Dr. Marasovich testified that he did not know why plaintiff suffered pain in her leg and had not reached any conclusion as to what may have caused her pain. He testified that he asked Dr. Branch, a neurosurgeon, to examine plaintiff’s left leg to determine the cause of her complaint. Dr. Branch testified that he examined the plaintiff on several occasions and found no point of tenderness, no area of bruising or sign of the injection or injury along the sciatic nerve. He testified that he found nothing to indicate that the hypodermic shot had been given at an improper place or in an improper way. He testified that in his opinion plaintiff did not receive an injury due to the intramuscular injections and that he did not know the cause of her sciatic nerve injury. Dr. Washburn testified that as a result of an electromyogram he found the plaintiff to be suffering from a partial severe left sciatic nerve injury. He testified that the cause of her condition was unknown.

According to the testimony of the various doctors testifying in the case, there were eight possible causes of plaintiff’s sciatic nerve injury, to-wit: (1) stretching of a portion of a sciatic nerve; (2) irritation of the nerve by a previously existing disc; (3) functional problems; (4) complication of the above; (5) direct pressure to the nerve during the operation; (6) long sustained pressure on the sciatic nerve during the operation; (7) sudden loss of blood supply during the operation; and (8) infection or immune process as a result of the operation.

None of the doctors who testified could say that the intramuscular injections were improperly administered, nor is there any direct evidence that the hypodermic needle used by the nurse or nurses ever struck or came in contact with plaintiff’s sciatic nerve. None of the doctors were able to determine the cause of the injury to the sciatic nerve. The only testimony relating to probable cause of the injury was given by Dr. Washburn in response to a hypothetical question.

Appellee takes the position that the jury’s finding on Special Issue No. 2 (based on the finding on Special Issue No. 1) amounts to a finding that the appellant’s employees were guilty of negligence in administering the hypodermic injection and that the jury’s finding of negligence is supported by the evidence.

It has been recognized that persons undertaking to administer anesthetics in the course of medical or dental treatment, like medical or dental practitioners generally, are not insurers against harm nor guarantors of a favorable result, but are required only to exercise ordinary or reasonable care and skill under the circumstances. 61 Am.Jur.2d sec. 110, Physicians, Surgeons, and etc.; Annot., 53 A.L.R.2d 144 (1957). When a case concerns the highly specialized art of administering injections of anesthetics, with respect to which a layman can have no knowledge at all, the court and jury must depend on expert evidence. As pointed out in Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949), “There can be no other guide, and, where want of skill or attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury. * * *

“. . . Here the Courts have been obliged to insist on the dictate of simple logic, . . . that expert testimony on the main fact and issue must somewhere appear in the plaintiff’s whole evidence; and for lack of it the Court may rule, in its general power to pass upon the sufficiency of evidence, that there is not sufficient evidence to go to the jury . . .

Without the aid of expert testimony in this case, a jury could not, without resorting to conjecture and surmise, determine that the defendant’s employees failed to exercise their skill and use the care exercised by the ordinarily skillful, careful and prudent nurse acting under the same or similar circumstances. Wilson v. Scott, 412 S.W.2d 299 (Tex.1967); Louis v. Parchman, 493 S.W.2d 310 (Tex.Civ.App. — Fort Worth 1973, writ ref’d n. r. e.).

There is no testimony whatever in this regard, expert or otherwise, suggesting that defendant’s employees failed to exercise their skill and use the care exercised by an ordinarily skillful, careful and prudent nurse in making the hypodermic injection. Accordingly, the judgment cannot be sustained on the basis of the finding of negligence.

This brings us to the question of whether the evidence was sufficient to justify the submission of the case to the jury on the doctrine of res ipsa loquitur. We have concluded that it was not.

The doctrine of res ipsa loquitur springs from the very practical process of drawing logical conclusions from circumstantial evidence. Its purpose is to permit one who suffers injury from something under the control of another, which ordinarily would not cause the injury except for the other’s negligence, to present his grievances to the court or jury on the basis of the reasonable inferences to be drawn from such facts, even though he may be unable to present direct evidence of the other’s negligence.

A review of the cases, both pro and con, on the application of the doctrine in malpractice actions demonstrates that the doctrine is applicable only where it is a matter of common knowledge among laymen or medical men, or both, that the injury would not have occurred without negligence. Rayner v. John Buist Chester Hospital, 526 S.W.2d 637 (Tex.Civ.App. — Waco 1975, writ ref’d n. r. e.); Hunter v. Robison, 488 S.W.2d 555 (Tex.Civ.App. — Dallas 1972, writ ref’d n. r. e.); Seneris v. Haas, 45 Cal.2d 811, 291 P.2d 915, 53 A.L.R.2d 124 (1955). Very few laymen have had experience in administering anesthetics by use of a hypodermic needle. Consequently, insofar as laymen are concerned, it cannot be said in this instance that it is a matter of common knowledge that the injury would not have occurred without negligence. Such conclusion can rest only upon expert testimony. Bowles v. Bourdon, supra; Brown v. Shannon West Texas Memorial Hospital, 222 S.W.2d 248 (Tex.Civ.App.— Austin 1949, writ ref’d n. r. e.).

This brings us to the question of whether there was any expert testimony calling for the application of the doctrine of res ipsa loquitur. All the witnesses seem to agree that an injury to the sciatic nerve, in an operation of this type, is rare and does not ordinarily occur. This fact, however, does not prove that the injury more likely occurred because of negligence. The mere fact that an unfavorable result is somewhat rare does not give rise to the inference of negligence. Louis v. Parchman, supra; Dees v. Pace, 118 Cal.App.2d 284, 257 P.2d 756 (1953), citing other cases. There is no testimony that the injury to the sciatic nerve would not have occurred without negligence on the part of the defendant’s employees. Consequently, there is nothing in the expert testimony that would raise an inference of negligence giving rise to the application of the doctrine of res ipsa loqui-tur.

Even if the expert testimony could be construed as giving rise to the inference of negligence, there appears to be no probative evidence establishing that such negligence was the proximate cause of the injury. Both Dr. Marasovich and Dr. Branch testified that they did not know the cause of the injury to appellee’s sciatic nerve. Dr. Washburn testified that although he was of the opinion that the sciatic nerve had been injured, he did not know the cause of the injury. Thereafter, counsel for appellee propounded a hypothetical question asking Dr. Washburn to assume certain facts in evidence. Before concluding the hypothetical question, counsel asked the doctor to assume further that “there were no other traumas or infections to the sciatic nerve” and then asked the doctor if he had an opinion of whether the injections probably caused the injury to the sciatic nerve. Appellant objected on the ground that there was no evidence eliminating all “other traumas or infections.” After the objection was overruled, Dr. Washburn answered, “Yes, I don’t know how else I can answer that question.” Dr. Washburn then testified, “If this was the actual case, that an injection was given into this area and this was the only unusual event that occurred, then this would have been the probable reason for the finding of sciatic nerve injury.” Dr. Washburn then testified that there were many possible causes of a lesion to the sciatic nerve.

Res ipsa loquitur does not infer causation. It has nothing to do with causation. Rather it presupposes a known cause or at least a cause 'established by evidence in reasonable probability. Louis v. Parchman, 493 S.W.2d 310, 320 (Tex.Civ.App. — Fort Worth 1973, writ ref’d n. r. e.).

“The trier of fact is usually allowed to decide the issue of causation in cases of this nature: (1) when general experience and common sense will enable a layman fairly to determine the causal relationship between the event and the condition; (2) when scientific principles, usually proved by expert testimony, establish a traceable chain of causation from the condition back to the event; and (3) when probable causal relationship is shown by expert testimony. * * * ” Lenger v. Physician’s General Hospital, Inc., 455 S.W.2d 703, 706 (Tex. 1970).

The only testimony relating to the issue of causation is the testimony of Dr. Washburn in response to the hypothetical question. The hypothetical question, as framed, was not supported by the evidence in that it was based on the assumption that the appellee’s sciatic nerve injury was not caused by trauma or infections. There is no evidence to support such assumption and the trial court erred in overruling appellant’s objection. The evidence shows at least eight possible causes of the injury. The possibility that the injury may have occurred from other causes was not negated. Thus, the doctor’s answer to the question is of no probative force since it was based on unproved facts. The nature of this case is such that a layman could not determine the causal relationship between the event and the appellee’s condition. Therefore, the judgment cannot be sustained by the application of the doctrine of res ipsa loquitur in view of the absence of expert testimony supplying the essential element of probable cause.

We do not reach appellant’s points 2, 5 and 11 seeking a reversal on the ground that the evidence is factually insufficient to support the jury’s finding on each of the special issues. If such points were reached, however, we would sustain the points.

The judgment is reversed and judgment is hereby rendered that appellee, Mary Louise Mills, take nothing.