author: WARD, Justice.

text:
    Joe Dudley PACE, Appellant, v. John J. McEWEN, Jr., Appellee.
    No. 6727.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 1, 1978.
    Rehearing Denied Nov. 29, 1978.

      Sam C. Bashara, San Antonio, for appellant.
    Law Offices of Pat Maloney, Inc., Pat Maloney, Jack Pasqual, George LeGrand, San Antonio, for appellee.
   OPINION

WARD, Justice.

This suit is by John J. McEwen, Jr., as Independent Executor of the Estate of Bessie McEwen Spence, deceased, to recover money from Joe Dudley Pace who had received large gifts from the deceased shortly before her death. The theories of recovery advanced were that the gifts were made to the Defendant while he occupied a position of trust and confidence to the deceased, who lacked mental competence and who acted as a result of his undue influence and fraudulent conduct. Trial was to a jury which in the main answered all but the fraud special issues favorable to the position of the Plaintiff. Based on the verdict, judgment was entered in favor of the Plaintiff in the amount of $242,271.75. We affirm the judgment of the trial Court.

Joe Dudley Pace, a stockbroker, met Mrs. Spence in 1959 or 1960 when she used his services to sell a few shares of her stock. Thereafter, on three or four other occasions, she had him arrange small sales of her stock. In 1964, he advised her on an investment program that would yield a monthly income. Acting on his recommendation, she purchased a Dreyfus Fund Program for approximately $50,000.00. At that time, she also had some $40,000.00 in Franklin Life Insurance stock and a $16,000.00 home. She was then ninety years old, a widow with no children, and had lived for many years in Houston. Her nearest relatives were a sister, a nephew and a niece, all of San Antonio. On November 27, 1964, she executed a will where those relatives were named as equal beneficiaries, and the nephew, John J. McEwen, Jr., was designated as the independent executor. At that time, she also executed a power of attorney to the nephew. Then began her actions which resulted in this lawsuit. On December 28, 1964, she gave to the Defendant Franklin Life Insurance Company stock of the value of $82,969.00, and on January 5, 1965, gave to him the balance of her Franklin Life Insurance Company stock of the value of $6,889.00. On July 1, 1966, when she was ninety-two years of age, she executed a universal power of attorney in favor of the Defendant, and, on August 26, 1966, purportedly made a gift to him of her Dreyfus Fund of the value of $52,413.00, that being the remainder of her stockholdings. There was no consideration or reason given for any of these transfers other than the Defendant’s statement as to his friendship with the elderly lady, and the work which he had done for her for which he had already received a commission. In July, Mrs. Spence was hospitalized for a spinal injury, and she died on November 1, 1966. Later in November, her will was probated and McEwen qualified as independent executor of her estate. The present suit was not filed until September, 1973.

The Plaintiff’s trial pleadings consisted of allegations of the existence of a fiduciary relationship between the Defendant and his client Mrs. Spence, its breach, and the fraudulent appropriation of the securities; further, that she lacked necessary mental capacity and was acting under undue influence in making the various transfers. The Defendant in turn pled the two and four-year Statutes of Limitations, laches, waiver, and that the transfers were executed gifts.

By its answers to the special issues submitted, the jury determined: (1) that as to the two transfers of stock dated December 28, 1964, and January 5, 1965, Mrs. Spence did intend to make a gift, but as to the transfer dated August 26, 1966, she did not intend to make a gift; (2) that as to those two transfers on which she did intend to make a gift, she was unduly influenced by the Defendant Pace to make each respective gift; and (3) that as to those two occasions upon which she did intend to make a gift, she did not possess the mental capacity sufficient to understand the effect and consequences of her acts. Issues were then submitted regarding fraudulent representations and were answered in favor of the Defendant. In Special Issue No. 10, the jury answered “No” to the inquiry that more than two years prior to September 19, 1973, the Plaintiff knew, or by the exercise of reasonable diligence might have discovered, or was in possession of such facts as would cause a reasonable prudent person to make inquiry which would lead to a discovery of the transfer by Mrs. Spence of the three stock transfers to the Defendant.

Because the matter has been presented in different form upon a previous appeal, we will first dispose of the Defendant’s seventh point which asserts that, as a matter of law, the suit was barred by the Statute of Limitations. On this issue, a summary judgment was previously entered in favor of the Defendant, and that judgment was reversed on the ground that the summary judgment proof did not preclude the absence of an issue of material fact concerning the defense of limitations. McEwen v. Pace, 538 S.W.2d 426 (Tex.Civ.App.—San Antonio 1976, no writ). Contrary to the Plaintiff’s first argument, that holding did not establish the point as a matter of law. Glenn v. Prestegord, 456 S.W.2d 901 (Tex.1970). Contrary to the Defendant’s first argument, lack of pleadings of fraudulent concealment or other excuse to the running of the Statute of Limitations does not establish this point in the Defendant’s favor. Lack of pleadings is foreign to our consideration of the point and, further, evidence as to the excuse was introduced and issue No. 10 was submitted without any objection on the Defendant’s part. Tex.R. Civ.P. 67.

As later discussed, a fiduciary relationship existed between the broker-Defendant and Mrs. Spence during her lifetime, and undue influence was exercised by that broker in regard to the stock transfers made to the Defendant. That being the case, we have a person in a fiduciary relationship exercising his undue influence to secure a personal benefit. The exercise of undue influence is recognized as being a mere species of legal fraud. Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208 (1954). Under those circumstances, actual notice of the fraud must be given before the Statute of Limitations is set in motion. Bush v. Stone, 500 S.W.2d 885 at 890 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.). That fiduciary relationship ceased, however, when Mrs. Spence died, and the trial Court submitted the issue on the excuse to the Statute of Limitations under the discovery rule normally used in “arms-length transactions.” That rule states that fraud prevents the running of the Statute of Limitations until it is discovered, or when by the exercise of reasonable diligence it might have been discovered. Knowledge of facts that would have excited inquiry in the mind of a reasonable prudent person which, if pursued by him with reasonable diligence, would lead to the discovery of fraud, is equivalent to knowledge of the fraud as a matter of law. However, the mere fact that one had the opportunity or power to investigate the fraud is not sufficient in law to charge him with knowledge. The defrauded party must be cognizant or aware of facts as would have caused the ordinarily intelligent and prudent person to investigate. Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738 (1943); Bush v. Stone, supra at 889.

The evidence in regard to the Statute of Limitations question is as follows. According to the Plaintiff, he ordinarily visited his Aunt Bessie Spence twice a year by making the trip from San Antonio to Houston. At the time the will was made, he stated that she was failing mentally and was rather senile thereafter. He inquired of her financial state and was told by her that she had some stock and that she received some social security and rents from her home. He had no knowledge of the amount of stock. He also knew that the Defendant had befriended her, that he was her financial advisor, and that he took care of her personal affairs. After her death, he found no stock in the house or in her safety deposit box, and he questioned the Defendant as to the location of any stock. The Defendant told him there was none and would provide him later with his knowledge of her property. The Defendant later delivered to the Plaintiff three bank statements, some can-celled checks, paid bills, and some insurance policies. The Plaintiff admitted that it seemed strange to him that he could find no stock, and that when he spoke to the Defendant, the Defendant was rude to him and he became suspicious when he did not receive any more information. On the other hand, he stated that he did not know any more about his Aunt’s affairs other than as described. He probated the will and on the inventory reported what he knew of her estate, that being her home, a small amount of cash, two checking accounts, household furniture, and a mink stole. He stated that he never learned that the Defendant had gotten stock from his Aunt until 1973. At that time, he received some phone calls from a Mr. Diaz from Houston advising him that his Aunt had had considerable stocks, and that Mr. Pace had caused her to transfer ownership of the stocks to him. He then filed suit, and it was only after Court-ordered discovery that the Defendant disclosed the stock transactions.

Even if we apply the arms-length transaction rule to the two parties before us, the fiduciary relationship that existed between Mrs. Spence and the Defendant should be one of the factors to be considered in determining whether the fraud might have been discovered by the exercise of reasonable diligence. To that extent at least, the Defendant would not profit by Mrs. Spence’s death. Courseview, Inc. v. Phillips Petroleum Company, 158 Tex. 397, 312 S.W.2d 197 at 205 (1957).

After considering only the evidence supporting the jury finding on the discovery issue, the seventh point is overruled. The Defendant, by his eighth point, complains that the finding on the discovery issue is contrary to the great weight and overwhelming preponderance of the evidence and, after considering all of the evidence, this factual insufficiency point is likewise overruled.

The Defendant’s first two points are legal and factual insufficiency points to the effect that the evidence failed to support the jury finding that on August 26, 1966, Mrs. Spence did not intend to make a gift to the Defendant. It was on that date that the purported gift was made of the last of the Dreyfus Fund stock of the value of $52,413.00. On that day, Mrs. Spence executed an instrument of a gift to Mr. Pace of all shares of Dreyfus Fund, Jnc. standing in her name. That transfer was executed before a notary public and two witnesses. At that time, a gift tax return was signed and the Defendant later paid the gift tax under the power of attorney earlier executed by Mrs. Spence.

The Defendant, the two witnesses to the instrument, and a maid testified to the August 26th event. The Defendant stated that after he became acquainted with Mrs. Spence, he further befriended her by often visiting her, by running her errands, and by taking her to the opera; that his own mother became a close friend of hers and often visited with her; that though Mrs. Spence was very elderly, she was never senile but always alert and capable of doing her own shopping, cooking, and cleaning up until the time of her last illness; that the stock gifts were her own idea, and that she personally delivered the various certificates to him. The Defendant testified that after the execution of her will, she expressed a fear that her nephew would force her to move out of her home, would move her to a nursing home in San Antonio, and would get all of her property. It was this fear and her often expressed devotion to the Defendant that prompted the three gifts. He stated that he had the instrument creating the gift of August 1966 prepared and caused two of his friends to act as the witnesses to Mrs. Spence’s signature.

The two friends and a maid were called and testified that Mrs. Spence was alert on the occasion that the instrument was read to her, that she understood it, and that she willingly signed the instrument. The witnesses did not know the value of the gifts nor of the existence of the previous gifts.

The maid testified that she was told that the instrument was made so that Mr. Pace could take care of all of her things for her, and that Mrs. Spence said that she wanted him to take care of all of the monies.

The Court instructed that a “gift” meant: “ * * * a voluntary transfer of property from one person to another person without any consideration or compensation therefor, coupled with the intention of the donor to divest herself of the title, dominion and control of the property at the very time of the gift and the delivery of the possession of the property to the donee so that the donor can exercise no further act of dominion or control over it.”

No objection was made to the instruction, and the Defendant insists that each element required to establish the gift at the time in question was established by competent evidence, nothing being offered to contradict the occurrence as described above. What the Defendant overlooks, however, is the fiduciary relation then existing between the parties whereby the Defendant consented as a matter of law to have his conduct measured by the standards of the finer loyalties exacted by Courts of equity. Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786 (1938). The rule regarding the gift to a fiduciary is stated in 38 Am.Jur.2d Gifts, Sec. 36 (1968), as follows:

“A gift between persons occupying confidential relations toward each other is, if its validity is attacked, always jealously scrutinized by a court of equity, and unless found to have been freely, voluntarily, and with a full understanding of the facts, will be invalidated. * * *
“Improvidence of the donor may be considered, with other evidence, as tending to establish undue influence or abuse of a confidential or fiduciary relationship so as to make a gift invalid. It has been held that if, at the time of the gift, the donor’s mind has been enfeebled by age and disease, even though not to the extent of producing mental unsoundness, and the donor acted without independent advice, such gift being of a large portion or all of the donor’s estate and operating substantially to deprive those having a natural claim to the donor’s bounty of all benefit from the donor’s estate, these circumstances, if proved and unexplained, will authorize a finding that the gift is void, through undue influence, without proof of specific acts and conduct of the donee. Improvidence may also be a factor in the determination of the mental capacity of the donor to make a gift.”

In some jurisdictions where a confidential relation exists between donor and donee, the donee is required to prove that the donor had the benefit of competent and independent advice of a disinterested third party. In other jurisdictions, such competent independent advice is considered only as a factor to be considered along with the other facts in the case. See Bohn v. Bohn, 455 S.W.2d 401 (Tex.Civ.App.—Houston [1st Dist.] 1970, writ dism’d); McSpadden v. Mahoney, 431 P.2d 432 (Okl.1967); 38 Am. Jur.2d Gifts, Sec. 37 (1968); 38 C.J.S. Gifts § 34c (1943).

Here the aged and frail woman acting without independent advice gave her fiduciary the balance of her stock, which almost left her in an impoverished condition. As this transaction was explained to one of the witnesses, it was done to enable the Defendant “to take care of all of her things for her.” This is something entirely different from the necessary intention required to make an outright gift. After considering all of the evidence and inferences arising therefrom which support the jury’s findings, the first point is overruled. After considering all of the evidence, the second point is overruled.

Special Issue No. 2 inquired of the jury if Mrs. Spence, on the occasion of each gift, was unduly influenced by Mr. Pace in making the gifts. By its answer to Special Issue No. 2, the jury determined that Mrs. Spence was unduly influenced in making the gifts of December 28,1964, and January 5,1965. Because of the conditional form of the submission, the inquiry was not answered as to the final transaction dated August 26, 1966. The trial Court defined “undue influence” in terms of a normal transaction and not in terms of gifts to one in a confidential relationship, and placed the burden of proof upon the Plaintiff. No objection was made to the charge and, even with this heavier and unnecessary burden, the jury did answer the undue influence issue as to the first two dates in the Plaintiff’s favor. The Defendant’s next two points are legal and factual insufficiency points to the effect that the evidence failed to support the jury’s findings of undue influence on December 28, 1964, and January 5, 1965. Regardless of how the jury was charged, when the fiduciary relationship was established, the burden then rested on the Defendant to show by evidence the fairness of the transactions. He must have produced evidence affirmatively showing that he acted in good' faith and that the gift was voluntarily and understandably made. Without repeating, the factors previously discussed are of importance in the determination of whether any fraud, actual or constructive, was perpetrated on Mrs. Spence. Bohn v. Bohn, supra; Archer v. Griffith, 390 S.W.2d 735 (Tex.1964); Kalb v. Norsworthy, 428 S.W.2d 701 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ). Without further discussion, the third and fourth points are overruled.

The jury next determined by its answers to Special Issue No. 3 that Mrs. Spence lacked the mental capacity to make the gifts of December 28,1964, and January 5,1965. Her mental capacity on August 26, 1966, was not inquired about as again the Court submitted the question in such a conditional form that it was not answered as to that date. The Defendant attacks these findings again by two legal and factual insufficiency points. The question of the subjective mental capacity of Mrs. Spence and the probative value of the evidence necessary to be introduced to show her lack of mental capacity is entirely different from that previously discussed where the fiduciary had a duty to show the fairness and validity of the gifts and that they were free from the taint of fraud or undue influence. In looking at the evidence on the subjective mental capacity of Mrs. Spence, the rules are not relaxed just because of the fiduciary relationship. Without detailing the evidence on mental capacity, we hold that the Plaintiff and the other lay witnesses expressed opinions on mental conditions which were without a factual basis, and therefore were without probative value and amount to no evidence. Proper inquiry was the condition of Mrs. Spence’s mind on the two days in question and not some thirty days before or six months after. The “no evidence” point No. 5 is sustained, and if we were to reach it, we would sustain the factual insufficiency point No. 6. Bradshaw v. Naumann, 528 S.W.2d 869 (Tex.Civ.App. — Austin 1975, no writ); Brewer v. Foreman, 362 S.W.2d 350 at 354 (Tex.Civ.App.—Houston 1962, no writ). These rulings do not help the Defendant as we have overruled his previous points which attacked the alternative findings establishing the invalidity of the three gifts.

By its answer to Special Issue No. 11, the jury found that the Appellant acted with malice toward Mrs. Spence on each of the gift days, and these findings are attacked by the Defendant’s next two evi-dentiary points. The Defendant argues in the main that since the fraud issues were found against the Plaintiff, there is no foundation for the imposition of the malice issue. Again, what is overlooked is that undue influence is a form of legal fraud. It may exist without resort to false representations, but by a more subtle form of deceit or cunning, particularly where there has been an unconscionable advantage taken of a confidential relationship. See 25 Tex. Jur.2d Fraud and Deceit, Secs. 4 and 8 (1961). We hold that this was a proper case for the submission of the malice issue to the jury, that the evidence was sufficient to justify the jury’s affirmative finding, both by the legal and factual insufficiency test, and the two points are overruled.

Under the terms of the final issue, the jury awarded the sum of $150,000.00 as exemplary damages. The Defendant first attacks the award on the ground that under Article 16, Sec. 26, Tex.Const., the Plaintiff as executor of the estate and as a nephew is prohibited from bringing a suit for exemplary damages, arguing that under the constitutional provision, only the surviving husband, wife and children may recover the exemplary damages. There is no doubt that this is the rule where the action is brought under the Wrongful Death Act, as there the Constitution does describe the beneficiary limitations. Scoggins v. Southwestern Electric Service Company, 434 S.W.2d 376 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.). The Constitution and the cases construing it are speaking only where the tortious act causes a death. We do not have a tortious act against the person, and the constitutional limitation has no application to the present facts.

The Defendant’s second attack is on the more stable ground that a recovery for exemplary damages for this type of action did not survive the death of Mrs. Spence. The subject generally has a tangled history and interpretation. See Pros-ser Torts 4th Ed. 898. In this State, suits for physical damages to property have been permitted to survive. Aldridge v. Stout, 36 S.W.2d 1110 (Tex.Civ.App.—Fort Worth 1931, no writ). It has been pointed out that the Texas decisions holding that an action for damages to real or personal property survive the death of the owner are based upon an erroneous historical assumption. But the rule that those damages do survive is established. Landers v. B. F. Goodrich Company, 369 S.W.2d,33 (Tex.1963); Morton, “Survival of Actions for Property Damage in Texas,” 37 Tex.L.Rev. 905 (1959). Somewhat similar, the damage action for the wrongful acquisition of specific property by reason of fraud and deceit or the cause of action for conversion of property both survive the death of the wrongdoer. 1 Tex.Jur.2d Abatement and Revival, Sec. 110 (1959). That authority also points out that the survival of exemplary damages has been denied in certain early cases. 1 Tex. Jur.2d Abatement and Revival, Sec. 109. However, in Houston-American Life Insurance Co. v. Tate, 358 S.W.2d 645 (Tex.Civ.App.—Waco 1962, no writ), the Waco Court held that exemplary damages which were based on unreasonable collection efforts did survive under Article 5525, Tex.Rev.Civ. Stat.Ann., on the reasoning that the terms of the survival statute are very broad, comprehensive and inclusive, and that a holding that exemplary damages did not survive would be equivalent to grafting an unauthorized exception upon the statute. Without further discussion, we concur in the results of this last cited case and hold that exemplary damages do survive the death of one who has been wrongfully imposed upon by her trusted fiduciary and thus tricked into disposing of a large portion of her assets. Since the basis of exemplary damages is to furnish a needed deterrent to wrongdoing, the deterrent should survive the death of the injured party in areas where the Constitution and statutes have not provided to the contrary. The Defendant’s eleventh point is overruled.

The exemplary damages award is next attacked by legal and factual insufficiency points, as well as one attacking the amount as being so unreasonable as to require a remittitur. The argument under the first of these points is that there was no evidence of the type of conduct which would justify the award of exemplary damages. A broad definition of malice was given to which no objection was levied. It has been said that exemplary damages are available only if the unlawful act warranting the actual damages was of a wanton and malicious nature. It may be actual or implied. Actual malice is characterized by ill will or an intent to injure; implied or legal malice exists when wrongful conduct is intentional and without just cause or excuse, and, as used in the definition, it is not necessary in order to find malice that hatred, dislike, spite or resentment exists, but malice may be inferred from the doing of an unlawful act without reasonable grounds for believing the same to be unlawful. See Courtesy Pontiac, Inc. v. Ragsdale, 532 S.W.2d 118 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.). Whether it be deemed either actual or implied malice, we conclude that it was present in this case, and considering only the evidence and inferences which support the finding of conduct warranting exemplary damages, we overrule the legal insufficiency point. After considering all of the evidence, we overrule the factual insufficiency point.

As to the point urging that a remittitur of a portion of the exemplary damage award of $150,000.00 be ordered, we first note that in determining whether exemplary damages are excessive, a Court of Civil Appeals is to consider such matters as the degree of outrage produced by the evil, the frequency of the evil, and the size of an award needed to deter similar wrongs in the future. In addition, the amount of exemplary damages should be reasonably proportionate to the actual damages found, which in this case bears a ratio of roughly one and one-half to one. Southwestern Investment Company v. Neeley, 452 S.W.2d 705 (Tex.1970). Having considered the circumstances, the fiduciary relation, the age and helplessness of Mrs. Spence, and the ratio, the point is overruled. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959).

The Defendant’s final two points are to the effect that the trial Court abused its discretion in permitting the Plaintiff to file two trial amendments just prior to the case being submitted to the jury. Having considered the original pleadings filed by the Plaintiff to which no exception was made, the manner in which the facts were determined, and all of the evidence in the case, we find that the trial Court did not abuse its discretion. Tex.R.Civ.P. 66 and 67.

The judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: HUTCHINSON, Justice. RAY, Justice, CORNELIUS, Chief Justice,

license: Public Domain

text:
    The STANDARD FIRE INSURANCE COMPANY, Appellant, v. Christy Jean Wand LaCOKE, Appellee.
    No. 8600.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 7, 1978.
    Rehearing Denied Dee. 19, 1978.
    G. David Westfall, C. Edward Fowler, Jr., Bailey, Williams, Westfall, Lee & Fowler, Dallas, for appellant.
    , Larry D. Morris, Law Office of Windle Turley, P. C., Dallas, for appellee.
   HUTCHINSON, Justice.

This litigation arises from a claim for worker’s compensation. The Industrial Accident Board on May 7, 1976, rendered its decision awarding the appellee here approximately $21,000.00 on her claim for compensation for job related injuries. On May 14, 1976, appellant filed with the Board its notice that it was not willing to abide by such award, thereby making June 3, 1976, the last day in which to file its petition in the District Court of Dallas County. On June 1, 1976, appellant’s counsel dictated and caused to be prepared an appropriate petition seeking to set aside the award of the Board. The signed petition with cover letter and cost deposit was, along with other mailings, placed in a flat brown envelope properly addressed with proper postage affixed and deposited in the postal depository in the lobby of Bryan Tower Building in Dallas, Texas, at 5:00 p. m. on the same day. Such envelope was delivered to the VIM Room located in the Dallas County Records Building on or before June 3, 1976. The VIM Room was maintained by the United States as a place for postal carriers to receive and sort mail for subsequent delivery to the offices of the Dallas County Courthouse complex. The district clerk’s office is located in the Dallas County Courthouse which is one block distant from the Dallas County Records Building. The posted open hours for the VIM Room was 7:45 a. m. to 8:15 a. m. and 9:30 a. m. to 10:00 a. m., the postal employee making mail deliveries to the various offices in the Dallas County Courthouse complex from approximately 8:15 a. m. until 9:30 a. m. and again from 10:00 a. m. to 11:00 a. m. during which times the VIM Room was closed and locked. At 11:00 a. m. the room was closed and locked for the day. About two years prior to June of 1976 a deputy district clerk, without the knowledge or consent of the district clerk, began picking up the district clerk’s mail at the VIM Room each morning between 5:00 a. m. and 5:30 a. m. and instructed the postal employee not to make the after 10:00 a. m. delivery and to hold mail received after the first delivery until the next morning. Appellant’s original petition was received in the district clerk’s office in the courthouse and file-marked at 7:51 a. m. on June 4, 1976.

The trial court ordered that a separate trial first be had on appellee’s prayer to mature the award of the Industrial Accident Board and this appeal is from that trial. In answer to special issues the jury found (1) that appellant’s petition was received in the VIM Room on or before June 3,1976; (2) that it was placed in the district clerk’s box in the VIM Room where it was available to the district clerk and his employees on or before June 3, 1976; (3) that appellant failed to file this lawsuit on or before June 3, 1976; (4) that $3,000.00 would be a reasonable attorney’s fee for appellee’s attorney; and (5) that appellant had justifiable cause for not paying the appellee the award of the Industrial Accident Board. On motion the trial court disregarded the jury findings one and two and entered judgment for the appellee in the sum of $21,529.37, hence this appeal wherein appellee by cross-point complains of the trial court’s refusal to allow a recovery for the attorney’s fee and the 12% penalty.

The first and primary question before this Court is whether or not the receipt of the envelope containing the appellant’s original petition and filing fee in the VIM Room of the Dallas County Records Building on June 3, 1976, constituted institution of a suit to set aside the award of the Industrial Accident Board.

An instrument such as appellant’s petition is deemed filed at the time it is placed in the hands of the officer authorized by law to file the same and is left in his keeping, regardless of whether a file mark is placed on such instrument or not. Sun Lumber Company v. Huttig Sash & Door Company, 36 S.W.2d 561 (Tex.Civ.App. Dallas 1931, no writ). An instrument is “filed” when it is delivered to the proper officer and lodged by him in his office or received by him to be kept on file whether or not the same is marked “filed.” Kirby v. Travelers Insurance Company, 370 S.W.2d 912 (Tex.Civ.App. Beaumont 1963, writ ref’d n. r. e.); American Express Co. v. Monfort Food Distributing Co., 545 S.W.2d 49 (Tex.Civ.App. Houston-14th Dist.1976, no writ). In Gonzalez, Et Al. v. Vaello, Et Al., 91 S.W.2d 904 (Tex.Civ.App. San Antonio 1936, writ dism’d), the court stated:

. . We conclude that when neither the clerk nor a deputy is to be found at the county seat and a petition, accompanied by a letter and a prepared citation, ready for the clerk’s signature, are deposited in a box in the office of such clerk, which box is kept by such clerk for the reception of incoming mail, such petition may be properly regarded as having been filed with the clerk.”

The Texas Supreme Court in Glidden Company v. Aetna Casualty & Surety Co., 155 Tex. 591, 291 S.W.2d 315 (1956), seems to have approved the Gonzalez, Et Al. v. Va el-lo, Et Al. language, saying:

. . That decision may well be sound, because the petition was subject to the custody and control of the clerk as soon as it was placed in his mail box. . ” (Emphasis added.)

Then the Supreme Court proceeded to say:

“The use of diligence to file the bond within the prescribed period, and the reasons for failure to do so, would be material considerations if compliance with the rule could be waived or excused or if the time of filing might be extended. It is well settled, however, that the requirement that the bond be filed within thirty days is mandatory and jurisdictional, and that the time prescribed cannot be dispensed with or enlarged by the courts for any reason. Bruce v. San Antonio Music Co., Tex.Civ.App., 165 S.W.2d 248 (writ ref.); El Paso & N.E.R. Co. v. Whatley, 99 Tex. 128, 87 S.W. 819. Since no discretion is lodged in any court to excuse delay, even of one day in filing the bond, the reasons for the delay, even though sufficient to justify the exercise of discretion in aid of the appeal, are not material. See Labansat v. Cameron County, Tex. Civ.App., 143 S.W.2d 94 (no writ); Long v. Martin, 112 Tex. 365, 247 S.W. 827. The case last cited holds that delay in filing the petition for writ of error is fatal to the jurisdiction of this Court although counsel used the utmost diligence to file the petition in time.”

It is unquestioned that the jurisdiction to hear and determine an appeal from an award of the Industrial Accident Board depends upon the filing of suit in the district court within twenty (20) days after giving notice of appeal from the award of the Board and, of course, the burden is upon an appellant to file suit within the required time. Such requirement is both mandatory and jurisdictional. Texas Employers’ Insurance Ass’n v. Cook, 55 S.W.2d 205 (Tex.Civ.App. Waco 1932, no writ); American Motorists Insurance Company v. Box, 531 S.W.2d 401 (Tex.Civ.App. Tyler 1975, writ ref’d n. r. e.). Therefore, the question before this Court is simply whether or not under the facts of this case the appeal petition was filed with the clerk within the required time.

The appellant chose to deposit its petition in the United States mail rather than to utilize hand to hand delivery. The record is void of any evidence that appellant made inquiry relative to the filing of its petition prior to the expiration of the allowed twenty (20) days. As stated in American Motorists Insurance Company v. Box, supra:

“Appellant having selected the United States mail as its vehicle, it became appellant’s agent, and therefore, appellant was bound by the postal authorities’ failure to deliver the letter within the 20-day period allowed by the statute. Long v. Martin, 112 Tex. 365, 247 S.W. 827 (1923); American General Insurance Co. v. Kohn, 425 S.W.2d 688, 690 (Tex.Civ.App.—Austin 1968, no writ); Texas Employers’ Ins. Ass’n v. Cook, 55 S.W.2d 205 (Tex.Civ.App.—Waco 1932, no writ). . . .”

In the recent case of Ward v. Charter Oak Fire Ins. Co., 567 S.W.2d 934 (Tex.Civ.App. Dallas 1978, no writ), the employee selected the mails as the mode of delivery of her notice of appeal to the Industrial Accident Board and the court held that the postal authorities became her agent, and she was thus bound by their failure to timely deliver the notice, citing American Motorists Insurance Company v. Box, supra.

Appellant relies strongly upon the case of Gonzalez, Et Al. v. Va ello, Et Al., supra. There the instrument to be filed was deposited in a box in the office of the clerk which was maintained by the clerk for the reception of incoming mail and was under the exclusive control of the clerk. Here the instrument remained under the control of the postal authorities until it was delivered into the possession of the deputy clerk on June 4, 1976. We do not believe Gonzalez, Et Al. v. Va ello, Et Al., is decisive of this case.

Under the facts presented appellant is bound by the mandatory and jurisdictional filing requirements, and the jury’s finding that it failed to file its petition on or before June 3, 1976, is supported by the law and the evidence and appellant is bound thereby-

Appellee’s cross-point complains of the district court’s failure to enter judgment against appellant for its attorney’s fees and twelve percent (12%) penalty. In response to a special issue the jury fixed the sum of $3,000.00 as a reasonable attorney’s fee. The district court refused to enter judgment for an attorney’s fee nor would the court enter judgment for the 12% penalty-

The basis for appellee’s contentions is found in Section 5a of Article 8307 of the Worker’s Compensation Act.

Appellee contends that the award became final on June 3,1976, particularly in view of the district court’s judgment to the effect appellant failed to perfect an appeal from the Board’s award.

Of course, appellant did file suit to set aside the award of the Board and certainly has not failed or refused to bring suit to set the same aside as required by Section 5a of Article 8307. This section also provides for the delay of payments without penalty if “justifiable cause” exists. There is no contention that appellant has not prosecuted its cause in the trial court and here in good faith. Appellee’s cross-point is overruled.

The judgment of the trial court is affirmed.

RAY, Justice,

concurring.

I concur that appellant, The Standard Fire Insurance Company, failed to timely file its petition with the district clerk of Dallas County. However, I dissent relative to that portion of the opinion which states that appellee was not entitled to the statutory twelve percent (12%) penalty and reasonable attorney’s fees. The facts in the instant case are analogous to those in Texas Employers’ Ins. Ass’n v. Nunamaker, 278 S.W. 889 (Tex.Civ.App. Dallas 1925, no writ). There, the insurer filed its suit in the Dallas County Court at Law to set aside the final ruling and decision of the Industrial Accident Board. The Dallas County Court at Law sustained a plea to its jurisdiction urged by Nunamaker and dismissed the suit. The insurer appealed and the trial court’s ruling was affirmed by the court of civil appeals. The Supreme Court subsequently denied an application for writ of error. Pending the appeal of the jurisdictional question, Nunamaker instituted suit for the amount of the award plus interest and penalties for the failure of the insurer to comply with the final order of the Board. The trial court granted Nunamaker a judgment for the compensation awarded him by the final order of the Industrial Accident Board, together with a twelve percent (12%) penalty and reasonable attorney’s fees. The Court of Civil Appeals at Dallas affirmed.

In the instant case, the insurer filed his petition to set aside the award of the Industrial Accident Board one day too late. Thus, the district court never acquired jurisdiction of the insurer’s cause of action. In Nunamaker, supra, the County Court at Law did not have the power or authority to rule on appeals from the Industrial Accident Board, and thus, never acquired jurisdiction of the cause of action. In the present case, while the district court has the power and authority to hear and decide appeals from awards of the Industrial Accident Board, it nevertheless never acquired jurisdiction of the appeal because it was filed too late. Thus, the District Court of Dallas County was without power or authority to decide the appeal and could only decide that it did not have jurisdiction to hear the appeal. In both Nunamaker and the present case, the insurer failed to comply with the final order of the Industrial Accident Board. In both cases the workers filed suit to recover the award, plus interest, penalties and attorney’s fees. In Nuna-maker, the court stated:

“Appellant contends that the judgment for 12 per cent, damages and attorney’s fee is erroneous. The proposition urged is that this suit could not lie upon the order of the Industrial Accident Board for the recovery of the award with penalties and attorney’s fee, unless the appellant had failed and refused to obey and comply with this order, or failed to bring suit to set same aside. Appellant insists that it complied with the statute, in that it filed a suit in the county court at law of Dallas county to set aside the final ruling and decision of the board, and, although this court was without jurisdiction, that the final adjudication of that fact was not reached until the Supreme Court overruled its motion for rehearing on March 18, 1925, after which time appellant claims that it tendered to appel-lees the amount of the award.
“In this connection appellant makes the further contention that this suit, instituted on January 10, 1925, was prematurely brought and should have been abated on the motion urged by it for that purpose, for the reason that it was brought pending the appeal of the suit instituted to set aside the award of the board, and that, until the Supreme Court finally acted on its motion for rehearing, the decision of the board was in suspense and was deprived of that finality of character necessary to support this action.”

The Dallas Court of Civil Appeals did not adopt the view of the insurer and held that it was the duty of the insurer to either pay to the workman the amount of compensation awarded by the final decision of the Board, or bring suit in a court of competent jurisdiction to set the same aside and that since the insurer did neither, it was not entitled to be shielded from the imposition of penalties for its failure to obey the final decision of the Industrial Accident Board. In the instant case, I am of the opinion that Appellee LaCoke was entitled to receive the twelve percent (12%) penalty and attorney’s fees as provided by Article 8307, Sec. 5a, Tex.Rev.Civ.Stat.Ann., when the insurer failed to comply with the award of the Board and failed to timely bring suit to set aside the award of the Board.

CORNELIUS, Chief Justice,

dissenting.

I respectfully dissent. In my judgment, when appellant’s petition was received on June 3 in the VIM Room at the Dallas County Records Building, and solely because of the specific instructions of the deputy district clerk was not delivered to the clerk’s office at the regular 11:00 o’clock a. m. delivery, but instead was placed in the clerk’s receptacle to be held for pick-up by the clerk at a later time, it was filed within the contemplation of the law.

A paper is considered filed when it is delivered to or placed in the custody and control of the official with whom it is to be filed. Glidden Company v. Aetna Casualty & Surety Company, 155 Tex. 591, 291 S.W.2d 315 (1956); Gonzalez, Et Al. v. Vaella, Et Al., 91 S.W.2d 904 (Tex.Civ.App. San Antonio 1936, writ dism’d). If the paper is subject to the officer’s custody and control and is available to him, his delay in taking actual physical possession of it or in affixing his file mark to it will not affect the timeliness of the filing. Hanover Fire Ins. Co. v. Shrader, 89 Tex. 35, 33 S.W. 112 (1895); Blackburn, Et Al. v. State Ex Rel. Echols, Et Al., 72 S.W.2d 627 (Tex.Civ.App. Eastland 1934, no writ); 49 Tex.Jur.2d, Records and Registration Acts, Secs. 13 and 14, pp. 336, 337.

The principles applied in Travelers Ins. Co. v. Johnson, 131 S.W.2d 242 (Tex.Civ.App. Beaumont 1939, writ dism’d judgmt. cor.), and Tate v. Standard Accident Ins. Co., 32 S.W.2d 932 (Tex.Civ.App. Beaumont 1930, writ ref’d), should govern this case. In Johnson, a notice of appeal from an Industrial Accident Board award was required to be filed with the board by August 8th, a Sunday. The notice was mailed on Friday, August 6th, and was received in the Austin post office on Saturday, August 7th. Normal delivery would have been on Monday, August 9th. The board did not maintain a post office box at the post office, but when its mail was received at the post office it was sorted and placed in a box or receptacle along with other state mail going to the same building awaiting delivery. The Industrial Accident Board’s office was closed on Saturday and Sunday and there was no one present at its offices on those days to receive the mail. The mail was available for pick-up at the post office on those days, however, and the court held that although the petition was not delivered until Monday, August 9th, it was considered legally filed with the Industrial Accident Board at the time it was placed in the receptacle at the post office and thereby made available to the board. In Tate, the notice of appeal from the Industrial Accident Board award was delivered to a postal substation in the Capitol Building where the Industrial Accident Board rented a box. Upon receipt of the letter, the postal superintendent placed a notice in the Industrial Accident Board’s box indicating that he held the letter in question for delivery. The Board’s offices were closed for several days when the letter was received at the post office and the board’s employees did not pick up the mail until sometime after the last day for filing had passed. The court held, however, that when the notice (not the letter itself) was placed in the Industrial Accident Board’s box and the letter was held by the post office for pickup by the Board’s employees, it was filed with the Board as of that time.

The facts in the case at bar are stronger than those in either Johnson or Tate. Here the jury found, on sufficient evidence, that the petition was received in the VIM Room at the Dallas County Records Building on June 3 and on that date was placed in the district clerk’s mail slot where it was then available for pick-up. The undisputed evidence showed that, but for the deputy clerk’s instructions to hold the mail for later pick-up, the mail on hand at that time would have been delivered to the clerk at his office at the 11:00 o’clock a. m. delivery. By instructing the postal officer not to deliver the mail, but rather to hold it for him to pick up later, the clerk constituted the postal service his agent and the petition was effectively placed in his custody and control. The petition should be considered as having been filed as of that time. To hold otherwise would allow public officials to thwart the right of citizens to use the mail to timely file papers with them by simply instructing the postal service to hold their mail for pick-up and then failing to call for it until the applicable time limits had passed. As said by the court in Tate, supra:

“The courts having repeatedly held that notice by registered mail was a compliance with the law, appellant had the right to use and rely upon that method

And again,

“It was no fault of appellant . that the board did not call for and get its mail.”

For the reasons stated, I would rule that the petition was timely filed. However, as the case is being affirmed, I concur with Justice Hutchinson that attorney’s fees and interest were properly denied.


author: HUTCHINSON, Justice.

text:
    Betty (Minyard) STEIN, Appellant, v. HIGHLAND PARK INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 8612.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 7, 1978.
    Rehearing Denied Dec. 12, 1978.

      Betty (Minyard) Stein in pro. per.
    Stephen F. Fink, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   HUTCHINSON, Justice.

This is an appeal from an order of dismissal entered by the trial court upon appellant’s refusal to amend her pleadings as required by a pre-trial order of that court. A brief history of this litigation is deemed to be in order. The suit was filed on August 3, 1972, naming the Highland Park Independent School District and each member of its board of trustees, individually, as defendants. Thereafter, the trial court granted a motion for summary judgment filed on behalf of the school district and its individual trustees upon the unsworn pleadings of the parties. Appellant perfected her appeal to the Court of Civil Appeals and thereafter on August 3, 1976, the judgment of the trial court was affirmed in part and reversed and remanded in part. (See 540 S.W.2d 551 stating that appellant had pleaded a cause of action based upon a continuing nuisance.) Thereafter, on May 24, 1977, Mrs. Stein (appellant) requested the trial court to hold a pre-trial conference and the trial court scheduled such conference for July 1, 1977, at 2:00 o’clock p. m. and so notified the parties. Such conference was thereafter rescheduled for July 8, 1977, at 9:00 o’clock a. m. and the parties were directed to prepare a pre-trial order in accordance with the opinion of the Court of Civil Appeals. At such hearing the district court by pre-trial order struck all of Mrs. Stein’s pleadings and granted her leave to amend up to and until August 8, 1977. On August 8, 1977, Mrs. Stein filed a document stating her intention not to amend and at a final pre-trial hearing on September 9, 1977, she persisted in her refusal and the district court dismissed the case and later refused to reinstate since her refusal to file amended pleadings was not withdrawn. She has now perfected her appeal to this Court.

This Court in the 1976 appeal of the summary judgment ruling pointed out that the then 13 points of error were not prepared in conformity with the rules, but in the interest of justice would be considered. Again we are petitioned to consider a brief that falls far short of the requirements and directions of Rule 418, Tex.R.Civ.P., and is replete with disrespectful and unjustified language concerning the trial judge and opposing counsel. Of course, Mrs. Stein has the right to represent herself in this or any other state court in Texas, Rule 7, Tex.R. Civ.P., but in so doing she is bound by the law and rules of procedure governing the courts of this State. See Stein v. Lewisville Independent School District, 481 S.W.2d 436 (Tex.Civ.App. Fort Worth 1972, writ ref’d n. r. e.), appeal dism’d, cert. denied, 414 U.S. 948, 94 S.Ct. 272, 28 L.Ed.2d 203, rehearing denied, 414 U.S. 1137, 94 S.Ct. 887, 38 L.Ed.2d 765 (1974), wherein the court stated:

“. . . this court is bound to apply the law and rules of procedure without consideration of who the parties might be or how inadequate their representation, in complete equality of treatment under the law. In other words we may not give Mrs. Stein any special consideration because she is a widow, is attempting to represent herself — and her grown children — without the aid of an attorney, and has overlooked matters which might have been of some benefit had there been adequate pleadings and proof. We must treat the case as though her acts and her failure to act occurred with benefit of licensed counsel.”

See also Martin v. Bishop, 238 S.W. 1018 (Tex.Civ.App. San Antonio 1922, writ dism’d):

“The first proposition contains a violent attack upon the character and motives of the trial judge, attributing to him such corruption and depravity as would utterly unfit him to hold the high and important office of district judge, without one thing in the record tending to justify the accusations. ... No such flagrant and outrageous disregard of the amenities which should always exist between bench and bar has ever before been filed in this court, and briefs containing such an exhibition of lack of respect for constituted authority upon the part of an attorney will not be permitted to remain as a part of the records of this court. The briefs will be stricken from the files of the court.”

Rule 68, Tex.R.Civ.P., grants to the trial court the power to order a repleader as was done here. Such granted power would be meaningless without the power of enforcement. Here the trial court in its discretion chose to dismiss the case rather than to hold Mrs. Stein in contempt of court for her absolute refusal to obey the court’s order. Shaw v. Universal Life & Accident Ins. Co., 123 S.W.2d 738 (Tex.Civ.App. Dallas 1939, no writ); City of Alice v. Lacey, 362 S.W.2d 919 (Tex.Civ.App. San Antonio 1962, no writ); Ship Ahoy, Inc. v. Whalen, 347 S.W.2d 662 (Tex.Civ.App. Houston 1961, no writ); Clark v. City of Dallas, 228 S.W.2d 946 (Tex.Civ.App. Dallas 1950, no writ). Appellant’s complaint goes only to the authority of the trial court to order the re-pleader and not to the chosen manner of enforcing it. Appellant could and should have complied with the order, noting her objections and exceptions in the record. This she elected not to do and documented in the record her refusal. The trial court then had the option of rescinding the order, overlooking its open violation, holding appellant in contempt or striking her pleadings. The trial court chose the latter method and it is not now contended, nor has it ever been contended, that the court abused its discretion in selecting dismissal as the means to compel compliance with its order and no error in this regard is now found by this Court.

The brief of Mrs. Stein, appellant, on file with this Court is saturated with disrespectful language and unjustified accusations against the trial judge and opposing counsel. Following are a few examples: the judge and appellee’s attorney “culprits”; judge guilty of “cheap tricks”; dismissal of case “based on emotion”; judge lacks integrity and is guilty of extreme prejudice and bias, misconduct and corruption and bad faith; judge conspiring with counsel to “throw case” and then cover it up; judge attempts to avoid crimes of former tax collector; and based his decision of dismissal upon pure emotion or his own law based upon emotion. These and other scurrilous and disrespectful accusations are found throughout appellant’s brief and are inseparable therefrom and of themselves would afford just grounds for striking her brief from the files of this Court. Martin v. Bishop, supra.

Instead, appellant’s “Brief” and “Points of Error” have been reviewed and found not to demonstrate error of the trial court in dismissing her suit.

Accordingly, the order of the trial court is affirmed.


author: HUTCHINSON, Justice. RAY, Justice,

text:
    O. K. C. CORPORATION, Appellant, v. J. O. ALLEN, Willie Mae Sowell and Minnie Moody, Trustees of White Rock Chapel Church, Appellees.
    No. 8548.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 14, 1978.
    Rehearing Denied Dec. 12, 1978.

      Robert L. Dillard, III, Saner, Jack, Sal-linger & Nichols, Dallas, for appellant.
    Shirley R. Levin, Levin, Weinberg & Le-vin, Dallas, for appellees.
   HUTCHINSON, Justice.

The judgment of the trial court was previously reversed and judgment rendered that appellees, J. 0. Allen, Willie Mae So-well and Minnie Moody, Trustees of White Rock Chapel Church, take nothing. Appel-lees timely filed a motion for rehearing which was replied to by appellant. The court is of the opinion that appellees’ motion for rehearing should be granted and the same is hereby granted and the cause reconsidered upon the original record and briefs of the respective parties.

This is a trespass to try title case. White Rock Cemetery Garden of Memories, Inc., brought the suit against O.K.C. Corporation, appellant here, and a petition in intervention was filed by the Trustees of White Rock Chapel Church, appellees here, to establish title to certain land near a cemetery by deed and alternatively by limitations. White Rock Cemetery Garden of Memories, Inc., did not answer the intervention and its action against O.K.C. Corporation was severed and this portion of the case was tried before the court.

The petition of intervention is brought by J. O. Allen, Willie Mae Sowell and O. J. Moody, Trustees of White Rock Chapel Church, to establish title to a 1.012 acre tract of land in the Thomas Garvin Survey of Dallas County, Texas, by virtue of a deed dated February 25, 1884, from W. A. Obier and R. A. Obier purporting to convey one acre of land in the A. Bledsoe Survey of Dallas County, Texas, to B. F. Turner, Wm. Harris, G. W. Coit, F. Brigham and J. Coit, Trustees of White Rock Chapel Church and their successors in office and alternatively to establish its title to the 1.012 acre tract in the Thomas Garvin Survey by limitations. Appellant in its answer enters a general denial and a plea of not guilty and alleges that appellees did not have legal capacity to sue in that they were claiming as trustees of the White Rock Chapel Church and did not allege that the church was a legal entity entitled to sue or be sued in the State of Texas. This latter allegation was never urged in the trial court or in this Court. However, it has been written upon by the dissent and will be considered herein. Judgment was rendered for the appellees for title to and possession of the 1.012 acres of land in the Thomas Garvin Survey of Dallas County, Texas.

The case is before this Court upon eighteen points of error; however, for briefing purposes the points have been combined into six points and will be so considered. The first group of points urge error upon the trial court in its finding of title by adverse possession under the 10-year statute of limitations, Article 5510, Tex.Rev.Civ.Stat. because of no evidence and insufficient evidence. It is undisputed that appellees had no record title to the 1.012 acres of land in the Thomas Garvin Survey (the land in question) as its deed was to a one acre tract in the A. Bledsoe Survey. However, it is apparent that ap-pellees and their predecessor trustees were, until this action was brought, under the impression that the 1.012 acres of land in the Thomas Garvin Survey was the one acre conveyed by the 1884 deed. The trial court found that the members of the White Rock Chapel Church built a permanent log church on the premises in question in the year of 1884 and used the same for sufficient time and under circumstances to ripen title under the 10-year statute of limitations. The Supreme Court of Texas in the case of Brohlin v. McMinn, 161 Tex. 319, 341 S.W.2d 420 (1960), stated “ . . . it is the policy of this state to give effect to an adverse holding, even by a naked possessor, when the adverse holding measures up to the statutory requirements so that title by limitation may be acquired by one who has neither title, color of title, nor muniment of title duly registered. The claimant is required only to have had the exclusive, peaceful and adverse possession of the land under a claim of right for not less than ten years. . . . When the statutory requirements are complied with, title is vested in the adverse claimant as completely as by a deed or patent, and the title that is created constitutes a chain of title from the sovereignty of the soil. Burton’s Heirs v. Carrell, 96 Tex. 320, 72 S.W. 581.” In considering a “no evidence” point of error, this Court is required to consider only that evidence which supports the finding and then in its most favorable light. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). As to an “insufficient evidence” point, it is the duty of this Court to consider and weigh all of the evidence in the case and remand the cause only if it concludes that the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. In Re King’s Estate, supra. This distinction is set forth clearly in the case of Cramer v. White, 546 S.W.2d 918 (Tex.Civ.App. Fort Worth 1977, writ ref’d n. r. e.). A review of the record under the foregoing guidelines demonstrates that the trial court’s finding that title to the 1.012 acres was acquired by the Church by adverse possession for a period of time from 1884 to 1895 and through 1918 is supported by the evidence. Once so acquired, such title vested as completely as by deed or patent. There is no contention here made that appellees’ title, if any, was divested by conveyance or adverse claim. It is undisputed that the early trustees upon the receipt of the deed to the one acre tract in the A. Bledsoe Survey took possession of the land in question, built a log church thereon, a caretaker lived there in a tent and worship services were had on a regular basis. Clearly this was an open and visible use and appropriation of the land by the church and constituted actual and constructive notice to the owner which continued for a period of time in excess of ten years. Even though the deed to the one acre tract of land does not convey the land in question, it is evidence of the amount and dimensions of the land claimed by the appellees and their predecessors. The judgment of the trial court is amply supported by the evidence and appellant’s first group point is overruled.

Appellant’s second group point and point of error No. 5 are also of “no evidence” and “insufficient evidence” complaining of appellees’ failure to establish the boundaries of the 1.012 acre tract prior to the survey of 1975. This group of points and point No. 5 are likewise overruled. The remains of the old church were upon the land and signs of fences were along the West and North and the surveyor was aware and had the use of the 1884 metes and bounds description and was aided in his survey by two persons familiar with the use of the property directly and through their ancestors.

Appellant’s third group of points is essentially the same as its first group, that is, “no evidence” and “insufficient evidence” to establish when or if the trustees went into possession, who constructed the log structure or who erected the caretaker's tent. This group of points is also overruled for the same reasons as stated in the discussion of the first group of points.

The dissent contends that an unincorporated association is incapable of acquiring title by limitation. It is true that an unincorporated association may not acquire title in its associational name, but it may acquire, hold and dispose of real property through elected trustees and their successors. Likewise, an unincorporated association which adversely occupies and possesses land in the required manner and for the proper length of time may acquire title by limitation by and through its trustees. Bridges v. Henson, 216 Ga. 426, 116 S.E.2d 570 (1960), affm’d, Henson v. Bridges, 218 Ga. 6, 126 S.E.2d 226 (1962); Booth v. Mason, 241 Ark. 144, 406 S.W.2d 715 (1966); Burton v. Griffith, 226 Ark. 641, 291 S.W.2d 516 (1956). The possession of the members for associational purposes is constructively the possession of the trustees who represent the association. Although we have found no Texas case exactly in point, two recent cases inferentially support this view. In Wicks v. Langford, 320 S.W.2d 707 (Tex.Civ.App. Eastland 1959, no writ), the acquisition of an adverse possession title by an unincorporated religious society failed only because one of the church trustees was also a part record owner of the land, thus bringing into play the rule that possession with knowledge and consent of the record owner is presumed to be with the acquiescence of the owner and therefore not adverse. And in Sherman v. Whittenburg, 357 S.W.2d 172 (Tex.Civ.App. Austin 1962, no writ), the trustees of an unincorporated Baptist church were held to have had such possession on behalf of their church as to entitle them to claim the benefit of the doctrine of prior peaceable possession. Public policy also supports this view. The adverse possession statutes were primarily designed to repose land titles and to afford protection against the loose methods of conveyancing which obtained in the early days of our State. Wilson v. Daggett, 88 Tex. 375, 31 S.W. 618 (1895). If individuals may take advantage of those statutes, there appears to be no good reason why other individuals, when joined together in an association and acting through duly elected trustees, may not also.

Appellant’s final group of points complains of evidentiary findings of the trial court, which if found to be incorrect would not require the reversal of the trial court. The fact that the church was not used exclusively by church members and that Minnie Moody’s and Willie Mae So-well’s parents may not have attended regularly would be of no consequence.

Finally, appellant complains of the trial court’s finding of a chain of title from the sovereignty of the soil. Such finding was altogether proper. Brohlin v. McMinn, supra.

The judgment of the trial court is affirmed.

CORNELIUS, C. J., concurs.

RAY, Justice,

dissents.

I dissent. I believe the trial court committed fundamental error in granting a recovery in favor of the intervenors because they admittedly had no personal interest in the property in question. The record in this case shows that J. 0. Allen, Willie Mae Sowell and Minnie Moody sued appellant in their capacities as trustees of White Rock Chapel Church. There was no proof that the White Rock Chapel Church was a business corporation, or a non-profit corporation under the provisions of the Texas Non-Profit Corporation Act, Article 1396-1.01, et seq., Tex.Rev.Civ.Stat.Ann., or that the trustees of the church were acting within the general powers of Article 1396-2.02, Tex.Rev.Civ.Stat.Ann. Further, there was no proof of any trust under which appellees purported to act and no proof of any bylaws, rules and regulations by which the church was organized or governed. By deduction, it must therefore be inferred that the White Rock Chapel Church was and is an unincorporated association.

It is my opinion that an unincorporated voluntary association is incapable of acquiring title by adverse possession since the association has no capability of taking legal ownership of the property. In other words, absent statutory authority, a voluntary association is not a legal entity capable of owning land. It has been stated, however, that the members of a voluntary association may hold title to property jointly as individuals. Gribble v. Call, 123 S.W.2d 711, 713 (Tex.Civ.App. Eastland 1938, writ dism’d judgmt. cor.).

In the present case the trial court held that “Intervenors, by and through their predecessor Trustees acquired title to the land as described by peaceable and adverse possession from 1884 through 1895 and thereafter under Article 5510, T.R.C.S.” and “Title vested in the Trustees of WHITE ROCK CHAPEL CHURCH after expiration of the limitation period by virtue of Article 5510, T.R.C.S.”

While the church as an unincorporated association could not acquire title to the property, there was no reason why the trustees as individuals for themselves and jointly with their associates, could not acquire title by limitation. Gribble v. Call, supra; Annot., 4 A.L.R.2d 123. I am of the opinion that the original trustees, B. F. Turner, .Wm. Harris, G. W. Coit, F. Brigham and J. Coit, could have matured title in themselves under the ten-year statute of limitations, but there is no evidence that they claimed the property for themselves individually. There is authority that unless they had set up the claim in their own right, they could not have acquired title by limitation. Heiskell v. Trout, 31 W.Va. 810, 8 S.E. 557, 561 (1888). Also, in Salem Church of United Brethren v. Numsen, 191 Md. 43, 59 A.2d 757 (1948), it is stated that the weight of authority seems to hold that the trustees of unincorporated religious associations cannot acquire title by adverse possession. Assuming that the original trustees had matured title in themselves individually, the proof does not show that intervenors have brought this suit claiming to be heirs or grantees of those individuals. Appellees did not attempt to prove title in themselves individually. It thus appears that appellees are not entitled to any recovery. 2 Tex. Jur.2d, Adverse Possession, Sec. 14, p. 74; 2 C.J.S. Adverse Possession § 21, p. 672 and § 23, p. 674.

This case is not to be confused with situations in which conveyances of properties are made to the trustees of a church for the uses, benefits and purposes of the church. See Methodist Episcopal Church v. Roach, 51 S.W.2d 1100 (Tex.Civ.App. Texarkana 1932, no writ); 6 Tex.Jur.2d, Associations and Clubs, Sec. 7, p. 522; 50 Tex.Jur.2d, Rev., Religion, Etc., Sec. 22, p. 85. Legal title to property may be conveyed to and vested in the trustees of an unincorporated association to hold the property in trust for the benefit of the members of such association. Methodist Episcopal Church v. Roach, supra; Brown v. Clark, 102 Tex. 323, 116 S.W. 360 (1909). It has always been held that a grant to an unincorporated association will not fail for want of a grantee since, in such a case, title vests in its members. Edwards v. Old Settlers’ Ass’n, 166 S.W. 423, 426 (Tex.Civ.App. Austin 1914, writ ref’d); U. S. Royalty Ass’n. v. Stiles, 131 S.W.2d 1060, 1063 (Tex.Civ.App. Amarillo 1939, writ dism’d judgmt. cor.).

Intervenors filed their claim solely as successor trustees of White Rock Chapel Church asserting that the original trustees of the church had acquired the title to the land by peaceable and adverse possession for a period of ten years. Since I do not think that the trustees of an unincorporated association can acquire title by adverse possession, for the association, I would reverse the judgment of the trial court and render judgment that appellees take nothing. Further, I would reverse the judgment of the trial court because I do not believe there is any evidence to show that the original claimants were claiming this specific tract by adverse possession. The tract was not enclosed by fence and appellees failed to prove a “claim of right,” because they failed to show that the original claimants entered upon the land with the intent to claim the land as their own and to hold it to the exclusion of all others as required by Articles 5510 and 5515, Tex.Rev.Civ.Stat. Ann. Brohlin v. McMinn, 161 Tex. 319, 341 S.W.2d 420 (1960); Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954); Houston Oil Co. of Texas v. Stepney, 187 S.W. 1078, 1084 (Tex.Civ.App. Beaumont 1916, writ ref’d); Orlando v. Moore, 274 S.W.2d 86 (Tex.Civ.App. Waco 1954, writ ref’d n. r. e.).


author:
PRESLAR, Chief Justice.
      OSBORN; Justice,

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Bernard L. ESKUE, Appellee.
    No. 6703.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 15, 1978.
    Rehearing Denied Dec. 20, 1978.

      Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Paul McCollum, Odessa, for appellant.
    Burnett & Ahders Associated, Ruff Ah-ders, Norma Venso, Odessa, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is a worker’s compensation case involving questions of the form of requests for issues and instructions, and the sufficiency of the evidence to sustain a finding that a specific injury extended to and caused a general injury. The trial Court awarded damages for total and permanent disability in the amount of $19,649.00, less a credit of $6,713.00 which had been paid to claimant. We reverse and remand.

The claimant suffered an injury when a drill bit fell from a rack and struck him breaking his right leg some four or five inches above the ankle. The injury was repaired with a metal plate, and he was on crutches with his leg in a cast for almost a year when the leg broke again at the point of repair. The metal plate was replaced with a bone graft and Appellant was again on crutches for a number of months, and at the time of trial, some four and one-half years after the original injury, he was still walking with a cane and wearing a back brace.

Under the provisions of Article 8306, Sec. 12, Tex.Rev.Civ.Stat.Ann., the Legislature has provided that an injured employee should receive a fixed and definite compensation for certain specific injuries enumerated in Section 12. The Section enumerates the several specific injuries and the amount of compensation for each, and provides that the compensation for each specified injury “shall be in lieu of all other compensation * * In this case, it was stipulated that the claimant sustained an injury and that the Defendant had paid him $6,713.00 in compensation benefits. Plaintiff’s pleading on which he went to trial was:

“ * * * Plaintiff suffered injury and damage to the nerves bones and soft tissues of his right leg, extending to and effecting [sic] the back and body as a whole resulting in total and permanent disability.”

The Defendant insurance carrier pled as an affirmative defense:

“ * * * that if plaintiff sustained any accidental personal injury, the same was confined and limited to the right foot below the knee, and that any effects thereof were confined and limited to said member, which is and was a specific injury within the meaning of the Workmen’s Compensation Act * *

The burden of proving that his injury to the right leg below the knee extended to and affected other portions of his body so as to result in a general injury rests upon the claimant. Texas Employers’ Ins. Ass’n v. Brownlee, 152 Tex. 247, 256 S.W.2d 76 (1953); Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W.2d 463 (1943); Texas Employers Insurance Association v. Wilson, 522 S.W.2d 192 (Tex.1975); Gallegos v. Truck Insurance Exchange, 546 S.W.2d 667 (Tex.Civ.App.—San Antonio 1977, writ ref’d n. r. e.). To meet that burden, the trial Court submitted Special Issue No. 1 as follows:

“Did the injury sustained by the Plaintiff on December 28, 1972, extend to and affect the Plaintiff’s general health thereby producing incapacity to the body generally?”

This was followed by the following instructions:

“ ‘Damage or harm to the body generally’ means in this charge, damage or harm extending to and affecting the body generally other than the right leg below the knee and the right leg above the knee.
“ ‘Producing incapacity to the body generally’ is damage or harm to the body generally that is not restricted to or caused solely by the loss of use of the right leg below the knee and the right leg above the knee.
“An injury to a specific member does not ‘extend to and affect’ other parts of the body if the use or attempted use of the injured member merely results in pain or other subjective complaints in such other parts of the body without producing damage or harm to the physical structure of such other parts.”

The jury answered “Yes,” and conditioned on the “yes” answer to that issue, they then answered Special Issue No. 2 “Yes,” which was:

“Was the injury to his right leg below the knee as extended to and affecting his general health, a producing cause of any total incapacity?”

There is evidence from which the jury could conclude that the claimant in this case is totally disabled, but we have concluded that the evidence is factually insufficient to establish that such disability results from an extension of the injury of the right leg. The specific injury to the right leg is the only injury suffered by the claimant, and the Insurance Company has stipulated as to that, together with the fact that it has paid him the statutory amount provided for such specific injury. In a case such as this where the claimant seeks to extend a specific injury to a general injury, he is met with legal concepts which have been consistently followed by the Supreme Court of our State, most recently reiterated by the Supreme Court in the case of Texas Employers Insurance Association v. Wilson, supra. The Court quoted from its oft quoted and followed case of Travelers Insurance Company v. Marmolejo, 383 S.W.2d 380 (Tex.1964), as follows:

“ ‘[T]he plaintiff does not establish his right to a judgment for general disability by merely showing that a specific injury has affected the body generally and thereby caused incapacity. He must go further and obtain a finding that his incapacity was caused by an extension of the injury to some part of the body other than a specific member.’ (Emphasis added)”

In the ease before us, Appellant has points of error that there is no evidence and insufficient evidence that the injury to Plaintiff’s leg below the knee extended to and affected other portions of his body. In our review of the evidence under these points, we have considered in connection with the “no evidence” points only the evidence and the inferences' tending to support the findings and disregarded all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). In deciding the factual insufficiency point of error, we have considered all of the evidence both pro and con. The claimant’s evidence as to his disability is that since the injury to his leg, he has become nervous, he experiences pain in his back, and his left arm has suffered numbness and weakness from the use of a crutch; and that each of these three problems began some months after his injury.

In Texas Employers Insurance Association v. Wilson, supra, the claimant sought to extend a specific injury to a general injury on the basis of the existence of a traumatic neurosis alleged to have been brought on by the injury, and that such amounted to an anxiety state which was disabling. In rejecting the contention, the Court said:

“ * * * It may be true that Mr. Wilson’s anxiety state can be traced back to the period of time immediately following his accident for if there had been no accident and no physical harm there would have been no resulting claim or suit. This, however, would not show conclusively as a matter of law that the anxiety state was a wholly separate injury arising out of the original accident. As was stated in Texas Employers’ Association v. Espinosa, 367 S.W.2d 667 (Tex.1963):
‘Specific injuries like all bodily injuries have their painful aftermaths and like undesirable consequences, but mere proof of this is insufficient in law to show an extension of a specific inju-

The holding of that case is controlling of the claim of nervousness here as an extension of the leg injury.

As to his back, the claimant testified that he started having pain in it when he switched from crutches to the use of a cane, and that the pain persists to this day when he tries to walk with a cane. It was held in Espinosa, supra, and Texas Employers’ Ins. Ass’n v. Brownlee, supra, that pain caused by an injury to a particular member and felt in another part of the body is not of itself sufficient to support a recovery for anything more than the original specific injury. Such was also the holding in Travelers Insurance Company v. Guidry, 461 S.W.2d 170 (Tex.Civ.App. — Beaumont 1970, writ ref’d n. r. e.). That case, too, had an injury to the leg as the specific injury. The Supreme Court’s latest expression on the subject is to reaffirm its holding that pain alone originating in the condition or use of an injured extremity and extending to other parts of the body is not an extension of the injury. Western Casualty and Surety Company v. Gonzales, 518 S.W.2d 524 (Tex. 1975). Under authority of these cases, claimant’s evidence of pain when he attempts to use the injured leg is not evidence of an extension of that injury to some other part of the body.

The claimant’s arm trouble may be some evidence of an extension of his specific injury, if it can be said that the use of crutches is a part of his medical treatment. It is held that where disability results from medical treatment instituted to cure or relieve an employee from the effects of his injury, it is regarded as having been proximately caused by the injury and is compensable. Western Casualty and Surety Company v. Gonzales, 506 S.W.2d 303 (Tex.Civ.App.—Corpus Christi 1974), aff’d, 518 S.W.2d 524 (Tex.1975). The claimant testified that his arm was weak, was at one time paralyzed, is still numb but is now improving with treatment, and that it was caused by the use of his crutch. The evidence is conflicting as to whether the crutch was prescribed as a part of his medical treatment. In the light which we must view the “no evidence” point, we conclude that this evidence as to the arm is some evidence of an extension of his specific injury to other parts of the body, and overrule the “no evidence” point. However, viewing all of the evidence, we conclude that the evidence is factually insufficient to support the jury’s answer to Special Issue No. 1, and that for that reason the case must be remanded for another trial.

Appellant objected at length to the Court’s Charge and requested issues and instructions in connection with its plea that the injury was confined to the lower leg. Under Tex.R.Civ.P. 273, requests for special issues and instructions must be submitted separately from objections to the court’s charge. That was not done in this case. Appellant urges that the requirements of the Rule are moot because the requests, though made with the objections, were reduced to writing and were each separately overruled by signature of the trial Judge. Appellant says the only question now is the correctness of the overruling. We are unable to agree because of the Supreme Court’s interpretation of Rule 273 in the case of Templeton v. Unigard Security Insurance Company, 550 S.W.2d 267 (Tex. 1977). It was there held that “[violation of Rule 273 precluded appellate review of the request for a special issue and the request for an instruction to the jury.” We are unable to consider the points of error on requests for issues and instructions.

We have not written on Appellant’s objections to Special Issue No. 1 for inquiring if Plaintiff’s “general health” was affected and following the inquiry with a definition of “damage or harm to the body generally” and no definition of “general health.” The objections are quite long, but we do not refuse to consider them under Rule 274, nor do we wish to be on record as approving them. It is unnecessary that the objections be considered under our holding that the evidence is factually insufficient to support the jury finding as the issue was submitted.

The judgment is reversed and this cause remanded for another trial.

OSBORN; Justice,

concurring.

I concur in the opinion by Chief Justice Preslar and feel compelled to do more than remand for a new trial with no guidance to the trial Court concerning the first issue which was submitted to the jury, and to which counsel for Appellant made numerous objections.

In Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex.1972), Justice Greenhill noted that the Workmen’s Compensation Act was not intended to provide health insurance, but was designed to provide compensation for incapacity flowing from an accidental personal injury. That position was restated by the Chief Justice in a dissenting opinion in Henderson v. Travelers Insurance Company, 544 S.W.2d 649 (Tex.1976). In the period between those two opinions, the Court decided Western Casualty and Surety Company v. Gonzales, supra. In that case, Justice Reav-ley writing for the Court said:

“ * * * If the injury to the particular member extends to and affects portions of the body beyond the member, or if his general health is impaired, the workman may recover for his general disability pursuant to other sections of the workmen’s compensation statute. Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312 (1944); General Accident Fire & Life Assur. Corp. v. Murphy, 339 S.W.2d 392 (Tex.Civ.App.1960, writ ref’d n. r. e.). * * *” (Emphasis added)

Neither of the cited cases either supports the emphasized language or makes any mention of a recovery for workmen’s compensation benefits as a result of the impairment of a workman’s general health. In the Murphy case, the Court said:

“It is true of course, as held in the cases of Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312, and Denbow v. Standard Accident Ins. Co., 143 Tex. 455, 186 S.W.2d 236, both by the Supreme Court, that to recover for a general injury the effects of the injury to a specific member must extend into and affect the body generally so as to cause disability.”

Only four months after the Gonzales case was decided, the Supreme Court in the opinion by Justice Denton in Texas Employers Insurance Association v. Wilson, supra, said:

“ * * * An injured employee, however, is not precluded from the recovering for total incapacity if he alleges and proves that the injury to the particular member also extended to and affected other portions of his body or has impaired his general health to such an extent as to totally and permanently incapacitate him. Western Casualty and Surety Co. v. Gonzales, 518 S.W.2d 524 (Tex.1975); Travelers Insurance Co. v. Marmolejo, 383 S.W.2d 380 (Tex.1964); Argonaut Insurance Co. v. Newman, supra. * * *” (Emphasis added)

Both the Gonzales case and the Newman case contain statements which support the language used by Justice Denton. Also see: Pennsylvania Threshermen and Farmers’ Mutual Casualty Insurance Company v. Tatom, 342 S.W.2d 25 (Tex.Civ.App.—Fort Worth 1960, writ ref’d n. r. e.); and Coleman v. Hartford Accident and Indemnity Company, 297 S.W.2d 236 (Tex.Civ.App.—Fort Worth 1956, writ ref’d).

But in Travelers Insurance Company v. Marmolejo, supra, the Court noted that for a claimant to recover for general disability as the result of an injury to a specific member, he must establish that the injury extended to and affected a part of the body other than the specific member. The Court said the fact that the injury to a specific member has affected the body generally is not enough.

In reaching that result, the Court followed its earlier opinion by Justice Norvell in Texas Employers’ Insurance Association v. Espinosa, 367 S.W.2d 667 (Tex.1963), which held that headaches, pain and dizziness following an eye injury did not establish of themselves an extension of a specific injury to the eye to the body generally. A similar holding appears in Texas Employers’ Ins. Ass'n v. Bronwlee, supra. There the Court said:

“ * * * ‘Where injury results to a particular member of the body, compensation for the loss of which is specifically provided by statute, the liability of the insurer is limited to that amount, even though the loss of or injury to that particular member actually results in total permanent incapacity of the employee to labor. But an employee is not precluded from recovering for total incapacity if he alleges and proves that the injury to the particular member also extended to and affected other portions of his body * * *

Those cases formed the basis for the Court’s decision in Texas Employers’ Insurance Association v. Shannon, 462 S.W.2d 559 (Tex.1970), where the Court said:

“The fact that pain alone (as distinguished from an extension of the injury) extends from an injury to a specific member of the body into the body does not make the injury a general one and will not support a finding of general incapacity. Texas Employers’ Ins. Assn. v. Brownlee, 152 Tex. 247, 256 S.W.2d 76 (1953); Texas Employers’ Ins. Ass’n v. Espinosa, 367 S.W.2d 667 (Tex.1963).”

Obviously, the headaches, pain and dizziness which the Court wrote about in Espi-nosa and the back pain which the Court noted in Shannon impaired each of those workmen’s general health. Yet that was not enough to permit recovery for a general injury in either case. And if, as the Court said in Marmolejo, the injury must extend to the body generally, a finding that it impairs the general health does not meet that requirement.

Many cases can be found which indicate that the proper issue for the jury’s determination is whether the injury to the specific member extends to and affects the body generally or some part thereof other than the specific member. That has certainly been the direction taken by the writers of Texas Pattern Jury Charges, Vol. 2 (1970), in PJC 26.15 to 26.24. We have found only one case where an issue inquired about the injury affecting the workman’s general health. Superior Ins. Co. v. Owens, 218 S.W.2d 517 (Tex.Civ.App. — Beaumont 1949, writ ref’d n. r. e.). But in that case, such issue was immaterial because the jury found that the injuries sustained by the workman extended to and affected his left shoulder, thus resulting in a general injury, regardless of any effect on his general health. We have found no case where there was an issue which inquired if the specific injury “impaired” the worker’s general health, and that was not the issue submitted in this case.

As noted in the opinion by Chief Justice Preslar, there is evidence in this case from which the jury could conclude that the claimant is totally disabled. And if the appropriate issue is an inquiry as to whether his injury extends to and affects his general health, then there is evidence to support the jury’s verdict, and the insufficient evidence point should not be sustained.

Unfortunately, we can give no definitive answer to the trial Court who must retry this case. The language in Gonzales and Wilson support the submission of an issue on impairment of general health. The reasoning in Brownlee, Espinosa, Marmolejo and Shannon seems to suggest otherwise. Certainly, this Court does not have the final say on what the proper issue should be, and we cannot resolve the question of the proper issue for these parties, each of whom finds support for their position in recently decided compensation cases. Unless a writ be granted in this case, the trial Judge is left with the next guess, and a recommendation of the Texas Pattern Jury Charges.

      . Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312 (1943), (affected the body generally); Argonaut Underwriters Insurance Company v. Byerly, 329 S.W.2d 937 (Tex.Civ.App. — Beaumont 1959, writ ref’d n. r. e.), (affected parts of the body other than the arm); General Accident Fire and Life Assurance Corp. v. Murphy, 339 S.W.2d 392 (Tex.Civ.App. —Houston 1960, writ ref’d n. r. e.), (affected the body generally); Petty v. Texas Employers’ Insurance Association, 401 S.W.2d 678 (Tex. Civ.App. — Fort Worth 1966, writ ref’d n. r. e.), (affected the shoulder); Texas Employers’ Insurance Association v. Shannon, 453 S.W.2d 217 (Tex.Civ.App. — Amarillo), rev’d, 462 S.W.2d 559 (Tex.1970), (affected parts of the body other than the leg); Western Casualty and Surety Company v. Gonzales, supra, (affected parts of the body other than the hand); and Texas Employers Insurance Association v. Wilson, supra, (affected the body generally).