author: KLINGEMAN, Justice.

text:
    George L. SHELDON and Angilee G. Sheldon, Appellants, v. Eva E. FARINACCI, Appellee.
    No. 15529.
    Court of Civil Appeals of Texas, San Antonio.
    April 14, 1976.

      Biery, Biery, Davis & Myers, Fred Biery, San Antonio, for appellants.
    Casseb, Leon, Rodgers, Strong & Pearl, Alvin Huth, Bennett & Leger, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a suit by appellants, George L. Sheldon and Angilee G. Sheldon, the holders of a judgment against Suniland Corporation, against appellee, Eva E. Farinacci, to satisfy such judgment by foreclosure of a judgment lien against certain real property in Bexar County, Texas. Both appellants and appellee filed motions for summary judgment. The trial court granted appel-lee’s motion for summary judgment that appellants take nothing, and denied appellants’ motion for summary judgment.

The summary judgment evidence, which sets forth the sequence of events upon which this suit is predicated, may be summarized as follows:

1.July 11, 1973 — Recording of deed of subject property from Suniland Corporation to Empress Construction Company.

2. January 29, 1974 — Appellants recover judgment against Suniland Corporation in the amount of $33,446.00.

3. April 29, 1974 — Recording of abstract of appellants’ judgment against Suniland Corporation.

4. November 27, 1974 — Recording of “Correction Deed” from Suniland Corporation to Empress Construction Company.

5. November 27, 1974 — Recording of deed from Empress Construction Company to Eva E. Farinacci.

Appellants assert that their judgment lien had attached to the real property involved prior to the purchase by appellee. Appellants’ entire case is predicated upon their contention that the acknowledgment to the deed recorded July 11, 1973 was fatally defective and that consequently the deed (a) was ineffective to divest Suniland Corporation of any title to the subject property; (b) should not have been recorded; (c) was ineffective to impart constructive notice to a creditor; (d) was improperly admitted as a part of appellee’s summary judgment proof. If such acknowledgment was not fatally defective, but a valid acknowledgment, all of appellants’ contentions must fail.

Appellants assert four points of error: (1) the trial court erred in denying appellants’ motion for summary judgment; (2) the trial court erred in granting appellee’s motion for summary judgment; (3) the trial court erred in finding that the deed from Suni-land Corporation to Empress Construction Company recorded July 11, 1973, imparted constructive notice to creditors and divested Suniland Corporation of title to the subject property; (4) the trial court erred in allowing appellee to use such deed as a part of her summary judgment proof.

Although not assigned as a point of error, appellants make some contention in their brief that the property description in the July 11, 1973 deed was also defective and was inadequate to divest Suniland Corporation of its interest in the property. However, on oral argument, appellant stated that he now believes such description to be adequate, and that he has abandoned any such contention. We will not consider it.

We first consider appellants’ point of error that the court erred in denying their motion for summary judgment. We have heretofore set forth the applicable summary judgment evidence. It is to be noted that nowhere therein is any proof that Suniland Corporation, appellants’ judgment creditor, owned the subject property on the effective date of appellants’ judgment lien, and in fact, nowhere in the record is there any proof that Suniland Corporation ever owned the property. Appellants apparently rely on the deed from Suniland Corporation to Empress Construction Company recorded July 11, 1973, and the “Correction Deed” from Suniland Corporation to Empress Construction Company recorded November 27, 1974, as proof that Suniland Corporation owned such property.

The fact that A gives a deed of conveyance to B of Blackacre, may be effective to divest A of any title that it has in Blackacre, but such a deed of conveyance, in itself, does not prove that A owned Black-acre or any part thereof. In order to show that appellants’ judgment lien attached to the subject property, it was incumbent upon appellants to show that Suniland Corporation owned the property or some interest therein. There is no such proof. Under the record, the trial court did not err in refusing to grant appellants’ motion for summary judgment.

Appellants’ other three points of error are based on their contention that the acknowledgment on the deed of July 11, 1973 was fatally defective, and that consequently their judgment lien had attached to the real property involved prior to the purchase by appellee.

The acknowledgment here involved reads as follows:

The State of Texas
County of Bexar
Before me, the undersigned authority, on this day personally appeared
of SUNILAND CORPORATION, a corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of said corporation.
Given under my hand and seal of office on this the 1st day of June, A.D., 1973.
(Seal)
/s/ Santa Kime_ Notary Public in and for Bexar County, Texas (TR 32)

Appellee asserts that it is the law of this State that in construing an acknowledgment, the instrument to which it is attached may also be considered; that the acknowledgment here involved when considered with the deed to which it was attached is not defective; that the deed was effective to divest Suniland Corporation of whatever interest it had in the subject property; was properly recorded; was effective to give notice to creditors; and was properly admitted into evidence as a part of appellee’s summary judgment proof.

It is obvious from the above set forth acknowledgment that it is not possible to tell who appeared before the notary public without reference to the deed. But by looking at the deed and the acknowledgment together it can be readily ascertained that Adolph Alvarez, the person who signed the deed, is the person who appeared before the notary public, the person who acknowledged that he executed the same for the purposes and considerations therein stated, as the act and deed of said corporation. The grantor shown in the deed is Suniland Corporation, and the only signature on the deed is that of Adolph Alvarez.

Article 6603, Tex.Rev.Civ.Stat.Ann., requires that the acknowledgment of an instrument for the purpose of being recorded shall be by the person who executed the same, appearing before some officer authorized to take acknowledgments and stating that he executed the same for the purpose and consideration therein stated.

Article 6626, Tex.Rev.Civ.Stat.Ann., requires that all deeds, in order to be recorded, shall have been acknowledged according to law.

Appellants rely heavily on Sweeney v. Vasquez, 229 S.W.2d 96 (Tex.Civ.App.—San Antonio 1950, writ ref’d), in which it was held that a contract of sale and purchase which is not acknowledged by the vendor is not notice to subsequent purchasers even though it was acknowledged by the purchaser and recorded. The court pointed out that Article 1294, Tex.Rev.Civ.Stat.Ann., requires that “[e]very deed or conveyance of real estate must be signed and acknowledged by the grantor in the presence of at least two credible subscribing witnesses thereto; or must be duly acknowledged before some officer authorized to take acknowledgments, and properly certified to by him for registration;” and that since a contract of sale and purchase executed by the seller and purchaser passes an equitable title to the land, it should have been acknowledged by the vendor and not by the vendee. The contract of sale therein involved contained no acknowledgment whatsoever of the vendor, in contravention of Article 1294, and we do not regard such case as determinative of what constitutes a defective acknowledgment.

Appellants and appellee both cite Smith v. Victory, 69 S.W.2d 433 (Tex.Civ.App.—Texarkana 1934, writ ref’d), which involved a certificate of acknowledgment of a married woman under the old privy acknowledgment statute. Appellee cites the case as authority for the proposition that an attached deed can be looked at in construing the validity of the acknowledgment. The name of the wife was left blank in one place in the acknowledgment, but appears in another place in the certificate; there was also a variance between the spelling of the name in the acknowledgment and in the deed. The court held such acknowledgment sufficient stating that when considered with the remaining terms of the certificate, the omission of the name in the blank indicated did not render the certificate void. The court also found the difference in the spelling of the name in the deed and in the acknowledgment was not sufficient to invalidate the certificate of acknowledgment in that the doctrine of idem sonans was applicable.

Appellants also rely on Huff v. Webb, 64 Tex. 284 (1885), in which the court held that a certificate of acknowledgment, that did not affirmatively show that the person whose name is shown in the acknowledgment executed the deed, was not sufficient and the deed could not be admitted in evidence. The court stated that under the then Articles 4305 and 4312, Tex.Rev.Civ. Stat.Ann., a proper certificate of acknowledgment of a deed or other instrument must show that the maker appeared before the officer “and stated that he executed the same,” and that the acknowledgment there involved did not show that the maker acknowledged before the officer that he had executed the deed.

Appellee relies chiefly on Hill v. Foster, 143 Tex. 482, 186 S.W.2d 343 (1945), and Williams v. Cruse, 130 S.W.2d 908 (Tex.Civ. App.—Beaumont 1939, writ ref’d). Hill involved a certificate of acknowledgment of a married woman which was defective in that it failed to show that the officer taking the acknowledgment fully explained the contents of the deed to the married woman and therefore did not meet the requirements of Article 6608, Tex.Rev.Civ.Stat.Ann., which prescribed the form of a certificate of acknowledgment of a married woman. The court held that in order for the notary’s certificate to a married woman’s acknowledgment to a deed to be valid, it is not necessary to use the exact language of the statute, but that a substantial compliance with the statute will be sufficient if it contains language which possesses the same meaning or represents the same facts. In view of other facts involved in this case, we do not regard it as exactly in point or controlling on the matter here before us.

We regard Williams v. Cruse, supra, a writ refused case, as most directly in point of any of the cases we have examined. In this case, it was contended that two acknowledgments were fatally defective. One acknowledgment was that of Anna Swearingen, a married woman, which failed to state that she willingly signed the deed. The court held that no exact form or words were required, and that a certificate of acknowledgment was valid so long as it shows that all essential prerequisites were in fact complied with. The other acknowledgment under attack, which we regard as directly in point, was that of a grantor whose name was shown in the body of the deed as “Nancy A. E. Risinger.” The deed was signed “Nancy A. E. Risinger ‘her mark’.” However, the acknowledgment was that of “Nancy A. E. Swearingen,” and nowhere in the acknowledgment did the name “Nancy A. E. Risinger,” appear. The court held that an acknowledgment may be considered in connection with the instrument to which it is attached in determining its sufficiency. The court stated that from the “instrument,” it would appear that the officer who made the acknowledgment simply made an error in making out the certificate, and that the acknowledgment and the record sufficiently established that Nancy A. E. Risinger, grantor in the deed, and Nancy A. E. Swearingen, who acknowledged it, were one and the same person.

In Williams we have an error of commission; in the case before us, an error of omission; that is, the name of the person who signed the instrument is omitted from the acknowledgment. However, it clearly appears from looking at the deed and the acknowledgment, that the person who signed the deed and the person acknowledging the deed were one and the same person. The acknowledgment contains all the other necessary prerequisites of an acknowledgment; that is, that the signer personally appeared before the notary; that he was known to the notary to be the person whose name is subscribed to the deed; that he acknowledged to him that he executed the same for the purposes and considerations therein stated, in the capacity therein stated, and as the act and deed of the corporation.

Appellant also contends that the deed involved did not impart constructive notice because of the provisions of Article 5.08 of the Texas Business Corporation Act which provides that a corporate conveyance shall be acknowledged in the manner prescribed for other conveyances of land, and that any such deed when recorded, if signed by the president or any vice-president of the company, shall constitute prima facie evidence that a resolution of the board of directors or stockholders was duly adopted. We have concluded that by looking at both the deed and the acknowledgment thereto it is clearly apparent that Adolph Alvarez signed the deed as President of Suniland Corporation and we do not regard appellants’ contentions with regard to Article 5.08 as having merit.

We have concluded that under the summary judgment evidence and the applicable authorities the certificate of acknowledgment is not fatally defective, and that the acknowledgment shows that all essential prerequisites to a valid acknowledgment were in fact complied with.

All of appellants’ points of error are overruled. The trial court did not err in granting appellee’s motion for summary judgment and in refusing to grant appellants’ motion for summary judgment. The judgment is affirmed.

      . Smith v. Burgher, 136 S.W. 75 (Tex.Civ.App. 1911, no writ), is another case in which the court looked to the deed in passing on the sufficiency of an acknowledgment. The acknowledgment was that of a married woman, and an objection was made to the deed on the ground that it appeared from the acknowledgment that it was doubtful that the married woman ever acknowledged it at all, as the acknowledgment did not show her to be the wife of D. M. Mason, but the wife of_The appellate court held that the objection was not tenable in that the deed stated that she was the wife of D. M. Mason. The court stated that the acknowledgment substantially complied with the statute, and that there was no error in admitting the deed.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    Alice B. ANDERSON, Appellant, v. Clifton R. ANDERSON, Administrator of the Estate of Josie W. Anderson, Deceased, Appellee.
    No. 5539.
    Court of Civil Appeals of Texas, Waco.
    April 15, 1976.
    R. Harold English, Terry L. Leedy, Arlington, for appellant.
    Elliott & Bass, Canton, for appellee.
   OPINION

JAMES, Justice.

This is a contested probate matter, and is a suit contesting the listing of a savings account in the Inventory and Appraisement of the Estate of Josie W. Anderson, deceased, by the Administrator. The trial court’s judgment was in favor of the Administrator, Appellee herein. We reform the trial court’s judgment as hereinafter shown, and as reformed, we affirm same.

Josie W. Anderson, the deceased, died intestate on July 23,1973. One of her sons, Clifton R. Anderson, was appointed and qualified as Administrator of his mother’s estate. On November 16, 1973, the Administrator filed an Inventory, Appraisement, and List of Claims of the estate, which was approved by order of the County Court on the same date as filed. Shown as an item under “Personal Property” therein was a savings account in the Bank of Mabank, Texas, in the amount of $10,000.00, recited to be the community property of the “decedent and spouse.” This savings account is the subject matter of controversy herein.

On September 9, 1974, several months after the approval of the Inventory and Appraisement, Alice B. Anderson, Appellant herein, filed a “Complaint for Correction of Inventory” wherein she alleged that she (Alice B. Anderson) was the owner of the $10,000.00 savings account hereinabove referred to, and asserted that said savings account was “erroneously listed as personal property of decedent’s estate,” and in effect prayed that the savings account be stricken from the Inventory.

Trial was had before the court without a jury, after which the trial court entered judgment denying the relief sought by Complainant-Appellant, Alice B. Anderson, and adjudged that the savings account was the community property of the deceased, Josie W. Anderson, and her deceased husband, Jim Anderson. That is to say, the judgment held that the savings account was owned one-half by the estate of Josie W. Anderson, deceased, and the remaining one-half by the estate of her deceased husband, Jim Anderson; and that Complainant did not have any ownership interest in the account. Moreover, the trial court’s judgment provided that both halves of said savings account were “subject to distribution by the Administrator through orders of this court upon proper proof of heirship of Jim Anderson and Josie W. Anderson.”

From this judgment, Appellant Alice B. Anderson appeals on three points of error as follows:

(1) The trial court’s finding of fact that Appellant Alice B. Anderson owned no interest in the savings account is so against the great weight and preponderance of the evidence as to be manifestly unjust, under the test laid down in In Re King’s Estate (Tex.1951) 150 Tex. 662, 244 S.W.2d 660;

(2) The trial court erred in failing to find as a matter of law that Appellant Alice B. Anderson was owner of the savings account as a result of the survivorship contract entered into by Josie W. Anderson, Alice B. Anderson, and the Bank of Mabank; and

(3)The trial court erred in holding that the Administrator could distribute the funds in the joint savings account to the heirs of the James W. (Jim) Anderson estate because neither the court nor the Administrator had any jurisdiction over the Estate of James W. Anderson.

Before discussing the questions concerning title to and ownership of the savings account in controversy, we hasten to point out that our Supreme Court has since early times held that the probate court has no jurisdiction to determine title to real or personal property, nor does the appellate court have jurisdiction to do so on appeal from the probate court. Wise v. O’Malley (1884) 60 Tex. 588; Heirs of Edwards v. Mounts (1884) 61 Tex. 398; Brown v. Fleming (Tex.Comm.App.1919) 212 S.W. 483, opinion adopted by the Supreme Court. These rules have been followed by our Courts of Civil Appeals in the following cases: Slavin v. Greever (Amarillo, Tex.Civ. App. CA 1919) 209 S.W. 479, no writ history; Berry v. Barnes (El Paso, Tex.Civ.App. CA 1930) 26 S.W.2d 657, no writ history; Farrar v. Blair (Dallas, Tex.Civ.App. CA 1953) 303 S.W.2d 873, NRE; Bryan v. Bryan (Amarillo, Tex.Civ.App. CA 1972) 477 S.W.2d 705, no writ history. Moreover, it has been held that the county court could not change the ownership of property by simply approving an Inventory and Ap-praisement, Smith v. Buss (1940) 135 Tex. 566,144 S.W.2d 529, and that the Inventory and Appraisement is not conclusive, but is only prima facie evidence of title. Little v. Birdwell (Tex.1858) 21 Tex. 597 at page 607; Brown v. Fleming (Tex.Comm.App. 1919) 212 S.W. 483, opinion adopted; Krueger v. Williams (Tex.1962) 359 S.W.2d 48.

However, the order of the probate court approving or modifying the Inventory and Appraisement has been held to be appealable, Krueger v. Williams (Tex.1962) 359 S.W.2d 48; therefore under this decision we are required to determine whether the probate court correctly modified the Inventory and Appraisement. Also see Brown v. Lee (Waco, Tex.Civ.App., CA 1962) 362 S.W.2d 381, reversed on other grounds, Tex., 371 S.W.2d 694.

With this background in mind, we revert to Appellant’s second point of error, to wit, wherein she asserts the trial court erred in failing to find as a matter of law that Appellant Alice B. Anderson was owner of the savings account as result of the surviv-orship contract entered into by Josie W. Anderson, Alice B. Anderson, and the Bank of Mabank. We are of the opinion that Appellant Alice B. Anderson was as a matter of law the owner of the one-half of the savings account that had previously been the community one-half owned by Josie W. Anderson, by virtue of the survivorship contract above-mentioned, and more particularly hereinafter described.

In order to evaluate Appellant’s first and second points of error, a review of the facts is necessary. Josie W. Anderson and James W. (Jim) Anderson were husband and wife for many years, and both were elderly people when Jim Anderson died intestate in April 1970. No administration was had upon his estate.

Three children, all sons, were born to their marriage, to wit, James L. Anderson, Clifton Anderson (Administrator herein) and Clyde Anderson, all of whom were grown at the times pertinent to this controversy. James L. Anderson was married to Appellant Alice B. Anderson in 1942, which marriage was terminated when James L. Anderson died testate on December 18, 1970. Appellant Alice B. Anderson testified that her husband James L. Anderson died leaving a will which was probated in Tar-rant County, Texas, in which she (Alice B. Anderson) was the sole beneficiary.

Josie W. Anderson died intestate on July 23,1973, and on November 16,1973, her son Clifton Anderson was appointed Administrator of his mother’s estate by the County Court of Van Zandt County, Texas. On November 17, 1973, the Administrator filed with the probate court the Inventory and Appraisement and List of Claims for the estate showing a savings account in the Bank of Mabank in the amount of $10,-000.00 as community property of his deceased mother and father. The probate court signed an order approving the Inventory the same day as it was filed by the Administrator.

On September 9,1974, Appellant Alice B. Anderson filed with the Court a pleading denominated, “Complaint for Correction of Inventory,” wherein she alleged that the savings account was erroneously listed in the inventory because the $10,000.00 savings account belonged to her, the Appellant, by virtue of a survivorship contract between herself, Josie W. Anderson, and the Bank of Mabank (in which bank the money was deposited). At the date of Josie W. Anderson’s death, the savings account in the Bank of Mabank was in the name of “Alice Beryl Anderson or Josie W. Anderson.” The account was shown to be opened on January 20, 1971. The signature card is headed, “Bank of Mabank, Mabank, Texas,” and contains the following language above the signatures of Josie W. Anderson and Alice B. Anderson:

“It is hereby agreed by the undersigned that the funds now in this account, or which may hereafter come into this account from any source whatsoever, are, and shall be, the property of the undersigned jointly and severally and are to be paid by the Bank to us, or to either of us in the absence of the other. In the event of the death of either of us, the funds shall become the property completely of, and belong to, and be payable to the survivor. In the event of the death of the survivor, the funds shall be payable to the executor, administrator, assigns, heirs or legal successors of such deceased survivor, and at all times the funds in this account, or any part thereof, may be paid by the bank to the person or persons so entitled to withdraw them, regardless of the original ownership of the monies so deposited. In the event of withdrawal by a survivor, after the death of one joint depositor, such withdrawal shall be subject to the provisions of Article 342 and 7144a, as amended, Vernon’s Texas Revised Civil Statutes.”

Let us now look at the source of the ownership of the money in controversy. Donald Gibbs, President of the Bank of Mabank since 1955 and connected with the Bank since 1950, was called as a witness by the Appellant, Alice B. Anderson. This being so, the Appellant is bound by the testimony of this witness. See Pickett v. Dallas Trust and Savings Bank (Tex.Comm.App. 1930) 24 S.W.2d 354, opinion approved by the Supreme Court; Texas Indemnity Insurance Co. v. Pool (Amarillo, Tex.Civ.App. CA 1947) 207 S.W.2d 1004, NRE. Gibbs testified that the source of the account in dispute prior to January 3,1959, was a joint checking account in the names of “Josie W. Anderson or Jim Anderson.” On said last named date Josie W. Anderson wrote a check transferring $5600.00 out of the joint checking account of herself and her husband and deposited same in a savings account in the name of her son “James L. Anderson,” and made it subject to being checked on by herself. Her husband Jim Anderson was not with her when this account was set up, according to Gibbs. Mr. Gibbs did not know the reason why Josie W. Anderson set up this account in her son’s name, except that he did observe that after January 1959 that both Josie W. Anderson and Jim Anderson started cashing old-age assistance checks at the bank. The interest was permitted to accumulate on this savings account, and no deposits were ever made by James L. Anderson nor were any withdrawals made by him. The savings account carried James L. Anderson’s social security number, and he and Alice paid income tax on the interest of this account from 1964 through 1970 inclusive, and after James L. Anderson’s death (December 18, 1970) Alice paid income tax on the interest of this account for the year 1971.

As stated before, Jim Anderson died intestate in April 1970, and no administration was had on his estate. Then on December 18, 1970, the son James L. Anderson died. It was about a month after James L. died that his mother Josie W. Anderson on January 20, 1971, transferred the money out of the “James L. Anderson Savings Account” into the savings account in controversy. By this time the savings account had grown with accretions of interest until it amounted to $8786.53. Josie W. Anderson wrote a check for this last-named amount out of the “James L. Anderson Savings Account” and set up a savings account in the name of “Alice Beryl Anderson or Josie W. Anderson,” and both Alice and Josie signed the signature card with the bank containing the survivorship language hereinabove quoted. After this account was set up, the interest was allowed to accumulate, but neither Alice nor Josie ever made any deposits or withdrawals from the account at any time. Josie W. Anderson died intestate on July 23, 1973, and thereafter Appellant Alice B. Anderson never exercised any control over the account by making deposits or withdrawals. Alice made no claim to the funds until Josie W. Anderson had been dead fourteen months and the Administration had been in existence for nine months.

The trial court filed findings of fact and conclusions of law, in which he found that the savings account set up in the bank with “James L. Anderson and Josie W. Anderson as co-signatures was composed of funds belonging to the previous checking account of Josie W. Anderson and James W. (Jim) Anderson;” that the savings account was the community property of Josie W. Anderson and husband, Jim Anderson; that in April 1970 when Jim Anderson died intestate his community one-half of the savings account passed to his lawful heirs; and on July 23, 1973, when Josie W. Anderson died intestate, her interest in one-half of the savings account passed to her lawful heirs; that Alice B. Anderson was not a joint owner of the savings account and “therefore no survivorship agreement shall be inferred from the evidence.”

We believe the evidence is ample if not undisputed that the source of the funds in controversy was the community property of Josie W. and Jim Anderson; moreover, that when Josie W. Anderson set up the savings account in her son’s name in 1959 with her reserving the right to check on the account, that the community nature of the property continued. Under this record the trial court had the right to infer that Josie W. Anderson transferred this money into her son’s name in order for herself and husband to qualify for old-age assistance. In this event, the son would be holding the community funds of his parents in trust for them, and this is corroborated by the fact that from January 1959 until James L. Anderson’s death in December 1970 (nearly twelve years), he never at any time exercised any control over this account by making any deposits thereto or withdrawals therefrom.

Since the property continued to be the community property of Josie W. and Jim Anderson after the 1959 savings account was set up, when Jim Anderson died intestate in April 1971, his community half of the savings account immediately vested in his heirs at law.

Now, in 1971, when Josie W. Anderson as a widow set up the survivorship agreement with the bank between herself and her widowed daughter-in-law Alice B. Anderson, this survivorship agreement was effective to bind Josie’s own community one-half of the savings account; however, she had no right whatsoever to bind her deceased husband’s community one-half, because it had already previously vested in her husband’s heirs at law by the law of descent and distribution. In other words, the title that Appellant Alice B. Anderson took under the survivorship contract had its source in the title that was vested in Josie W. Anderson when she deposited the funds, to wit, one-half of the account. See Turner v. Merchants and Planters National Bank of Sherman (Texarkana, Tex.Civ.App. CA 1965) 392 S.W.2d 889, no writ history. That is to say, Alice is not entitled to anymore of the savings account (by virtue of the survivor-ship contract) than Josie had, since Alice’s right of recovery depends on what interest Josie had.

Therefore, we sustain in part Appellant’s second point and hold as a matter of law that Appellant Alice B. Anderson is entitled to one-half of the savings account in question by virtue of the survivorship contract signed by her and Josie W. Anderson, to which contract the bank was a party. Davis v. East Texas Savings and Loan Association (1962) 163 Tex. 361, 354 S.W.2d 926; Krueger v. Williams (1962) 163 Tex. 545, 359 S.W.2d 48; Quilter v. Wendland (Tex. 1966) 403 S.W.2d 335; Brown v. Lane (Dallas, Tex.Civ.App. CA 1964) 383 S.W.2d 649, writ refused; Johnson v. Johnson (Amarillo, Tex.Civ.App. CA 1957) 306 S.W.2d 780, writ refused.

Appellant’s third point asserts error of the trial court in holding that the Administrator of Josie W. Anderson’s estate could distribute the funds in the savings account that belonged to the heirs of the Jim Anderson estate. We sustain this contention. Neither the trial court nor the Administrator had any jurisdiction whatever over Jim Anderson’s estate. As stated, Jim Anderson died intestate in April 1970, and no administration was had on his estate.

In the light of our disposition of Appellant’s second’and third points of error, we deem a disposition of Appellant’s first point (factual sufficiency point) to be immaterial.

In view of our holding that one-half of the savings account belongs to Appellant Alice B. Anderson and the remaining one-half to the heirs of Jim Anderson, deceased, we hereby reform the trial court’s judgment by deleting any language therefrom to the effect that the estate of Josie W. Anderson, deceased, owns any interest in the savings account. Said judgment is further reformed by deleting any language therefrom wherein the trial court undertook to exercise any jurisdiction or control over the one-half of the savings account owned by the heirs of Jim Anderson, deceased. As reformed, the trial court’s judgment is affirmed. It is accordingly ordered that the savings account in controversy be entirely stricken from the Inventory and Appraisement. Costs in the trial court and on appeal are taxed one-half each to Appellant and Appellee.

REFORMED AND AFFIRMED.


author: NYE, Chief Justice.

text:
    COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellant, v. Robert PUENTE, Appellee.
    No. 1032.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 15, 1976.
    Rehearing Denied May 6, 1976.

      Ronald B. Brin, Allison, Maddin, White & Brin, Corpus Christi, for appellant.
    J. A. Canales, Canales & Garza, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a workman’s compensation case tried to a jury resulting in a judgment for appellee, Robert Puente, against appellant, Commercial Insurance Company of Newark, New Jersey, for total and permanent incapacity. Appellant has duly perfected its appeal to this Court complaining that the evidence is legally and factually insufficient to support the jury’s award.

Robert Puente, hereinafter referred to as appellee, was a man, 26 years of age with only an eighth grade education, with no type of specialized training. He went to work for the City of Corpus Christi Sanitation Department in June 1968. His job classification was that of refuse collector. Appellee’s duties required riding on the back of a garbage truck, jumping off and picking up trash cans, generally carrying the cans approximately five to six feet, lifting the cans approximately three and a half (3½) to four (4) feet and then tossing the refuse in the truck. Each can weighed on the average twenty (20) pounds although naturally some would weigh considerably more. The job also required that appellee do a considerable amount of running behind the truck sometimes running two to four miles a day. Prior to and at the time of the accident, he was earning $2.39 per hour.

On December 21, 1972, while riding on the back of one of the City’s garbage trucks, the platform on which appellee stood broke, causing him to fall to the ground and injuring his back. Appellee’s foreman was informed of the accident and took appellee to the City physician and later to a Dr. Hyman P. Roosth, a specialist in the field of orthopedic surgery.

The trial was before a jury which found among other things: that the plaintiff, Robert Puente, received an injury on or about December 21, 1972; that he was injured in the course of his employment; that the injury was a producing cause of total incapacity; that such total incapacity began December 21, 1972; that the duration of such total incapacity was permanent; that the injury was not a producing cause of any partial incapacity; and that the payment of compensation in weekly installments instead of a lump sum would not result in manifest hardship and injury to plaintiff. The trial court rendered judgment that plaintiff recover the sum of $17,452.25 for compensation benefits. The appellant insurance company brings forward six (6) points of error, all being evidentiary points.

In its points of error No. 1 and 4, the insurance company asserts that there is no evidence to support the jury’s finding to the special issues that the duration of plaintiff’s total incapacity is permanent and that the injury was not a producing cause of any partial incapacity.

The appellee asserts that appellant has waived its no evidence points because appellant failed to lay the proper predicate for such points. “No evidence” points of error are inherently and fundamentally points which, if sustained, call for reversal of a trial court’s judgment and a rendition of judgment for the appellant. They must, therefore, be based upon and related to one or more of the following procedural steps in the trial court: a) motion for instructed verdict; b) objection to the submission to the jury of a vital fact issue; c) motion for judgment notwithstanding the jury’s verdict; and d) motion to disregard the jury’s answer to a vital fact issue. All are steps which must be taken before the rendition of judgment. See Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960). When such an assignment is not related to and based on one or more of the four prejudgment motions or objections, but is assigned in the final motion for new trial, the appellate court may consider this point but may only reverse and remand the case for a new trial. In the case at bar, appellant failed to make any of the prejudgment motions set out above. However, it is not necessary for us to consider appellant’s no evidence points, as such, in view of our subsequent holding.

Since this case involves primarily the sufficiency of the evidence of the jury’s findings, we must first distinguish between “total” and “partial” incapacity. Total incapacity occurs when a workman is disabled by injury to such an extent he cannot procure and retain employment at labor of the class he was performing when injured; the term does not imply absolute physical inability to perform any kind of labor. Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000 (1944); Travelers Insurance Company v. Smith, 435 S.W.2d 248 (Tex.Civ.App.—Texarkana 1968, writ dism’d). Partial incapacity occurs when injury disables a workman to perform part of the usual tasks of his job, though such disablement does not prevent him from procuring and retaining employment reasonably suitable to his physical condition and ability to work, or when because of his injury he is only able to perform labor of a less remunerative class than he performed before the injury, and as a consequence he suffers a depression or reduction in his earning capacity. Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991 (1942, opinion adopted); Travelers Insurance Company v. Smith, supra.

The court properly charged the jury in giving the following definitions:

“ ‘TOTAL INCAPACITY’ does not imply absolute inability to perform any kind of labor, but means that one is disabled from performing the usual task of a workman, not merely the usual task of any particular trade or occupation, to such an extent that he cannot get and keep employment.
A person cannot have both total and partial incapacity at the same time.”
and
‘“PARTIAL INCAPACITY’ is any degree of incapacity less than total incapacity, and means that a person’s earning capacity is reduced because he can perform only part of the usual tasks of a workman or can only do lower paying work than he could do before his injury, but can get and keep employment suitable to his condition.” (Emphasis supplied).

Appellant also complains in its points of error No. 2 and 5 that there is insufficient evidence to support the jury’s finding to the same special issues and in points No. 3 and 6 that such findings are against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

When it is urged that the jury’s failure to find a fact is so against the great weight and preponderance of the evidence as to be wrong and unjust, the fact finding power of the Court of Civil Appeals is invoked. In such a case, we are required to weigh all of the evidence and to remand the cause for a new trial if we conclude that the verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Parrish v. Hunt, 160 Tex. 378, 331 S.W.2d 304 (1960); Traylor v. Goulding, 497 S.W.2d 944 (Tex.Sup.1973); Ruiz v. Flexonics, 517 S.W.2d 853 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.).

Considering then all of the evidence, we begin with what occurred immediately after the appellee was hurt. After the appel-lee was examined by Dr. Roosth, he was admitted to Spohn Hospital on the same day. He was placed on bed rest, physical therapy, pelvic traction and given muscle relaxant drugs. From appellee’s symptoms, it appeared to Dr. Roosth that he had a hip strain with secondary back pains. Four days later, appellee was dismissed from the hospital.

On December 29, 1972, Dr. Roosth again examined appellee, with appellee appearing essentially well. The doctor then suggested and appellee did return to work on January 2, 1973. On January 8, 1973, appellee contacted Dr. Roosth complaining that on January 6, 1973, he had another pain in his back. Dr. Roosth still believing that the back pain was secondary to a left hip strain, treated the left hip by a treatment referred to as a partial tendonsheath release of the hip under local anesthetic. After the January 6, 1973, visit to March 12, 1973, Dr. Roosth saw appellee approximately four more times. On March 12, 1973, appellee returned complaining of the pain at which time Dr. Roosth admitted appellee to the hospital. On March 14, 1972, Dr. Roosth performed a lumbar myelogram on the ap-pellee.

As a result of these tests, Dr. Roosth performed an exploratory laminectomy in order to examine the disc bases at the appropriate levels and determine if there was something he could do to relieve appellee of his discomfort. During this operation, plaintiff’s disc at the L 4-5 level was removed. The doctor stated that he was not very impressed with the disc protrusion or bulging in the L 4-5 area, but felt that while he was there and not being able to determine what a disc would do in a body against a nerve root when the patient is in an upright position, removed the disc. Dr. Roosth also removed the disc material from the space at L-5 S-l on the right in order to relieve any possible compression of the root. Appellee remained in the hospital three to four weeks after the operation and was dismissed March 24, 1973.

In July 1973, appellee went back to work but was laid off due to a strike. In September 1973, appellee returned to work for the same employer. He did not return to the refuse collection, however, but was assigned light duty work which included being a flagman, truck driver, and picking up light brush. Appellee is still working for the City of Corpus Christi, assigned to lighter duty work and is presently earning $2.63 per hour, approximately twenty-five cents (25$) more per hour than at the time of the accident.

There were four witnesses, all for the plaintiff. Considering as we must all of the evidence, we have reached the conclusion that the greater weight and preponderance of all of the evidence is against the jury’s finding of total incapacity.

Appellee’s supervisor, Ceferino F. Valenzuela, testified that appellee had been a steady worker doing the task of a refuse collector beginning in 1968 up until the time of the accident December 21, 1972. The usual task of a refuse collector included preparing the ice pail in the morning, going out with the crew and picking up the garbage cans and running behind the truck. Since the accident, appellee had been assigned to lighter duty work which included driving a truck, picking up light trash and being a flagman. He testified that appellee has done the usual task of a brush truck driver and has been able to keep that job and has not complained to him about any disability in doing the usual task of a brush truck driver, a position he now holds. Valenzuela further testified that since appel-lee had gotten hurt on the job, they (City of Corpus Christi) would let him stay there doing the lighter duty job. Valenzuela also stated that appellee was a satisfactory and good worker before his accident and still is.

Appellee’s wife testified in effect that her husband has a partial disability. She stated that when he comes home from work, most of the time his back is aching. He complains about his back hurting during certain types of weather. She testified that he cannot bend over in front of the hood of his car to work on it, or play with the children like he used to.

The appellee testified that since the accident and his operation, although he is still able to pick up the garbage cans, he cannot do it all the time. He stated that he is unable to run like he used to. He testified that he does not feel like he can do all of the duties of a refuse collector. He further testified that he could not dig ditches; could not move furniture around the house; and cannot stand to sit all day. He also stated that he can only sweep or mop for twenty to thirty minute periods.

On the other hand, the appellee testified that he can do the lighter but not heavy duties of a refuse collector. He testified that with regard to the type of work such as truck driver, brush pickup and flagman, he is able to get that job and is able to keep it. He also stated that the brush truck driver’s job is more suitable to his physical condition. Appellee stated that in regard to the question being asked him as to whether he could get a job outside the City of Corpus Christi, that he has not really tried to look for any other work. He admits that he is really pretty happy with his job and that the type of work that he is doing is suitable to his physical condition.

Finally, Dr. Hyman P. Roosth, the treating physician, testified that appellee had a complete recovery from his surgery of March 16, 1973, and that in such operation, he had removed all of appellee’s pain. According to one of Dr. Roosth’s reports, the doctor stated that appellee was, able to work a normal length of a work day, standing or sitting and was able to drive a truck. The doctor testified that appellee can lift fifty (50) pounds, occasionally, but not all day; that appellee can still work for the sanitation department, however, not necessarily doing the heavier labor. He also stated that it was not true that appellee is not able to do continuous bending or stooping in that he can bend if he bends his knees as the doctor taught him and can stoop if he does so bending his knees. Ap-pellee’s physician testified further that he did not intend for appellee to lift heavy weights and jump on and off trucks, or throw cans onto trucks. He said he would not recommend an occupation for appellee that involved the throwing of cans.

However, with regard to the doctor placing the appellee on light duty work, the doctor stated that the limitation on his back is on the basis of prevention, and not that he cannot perform with his back at the present time; “he can do anything anybody else can do right now, but I do not want him to do it because he may pop another disc”, because of his past history. Dr. Roosth, after being given the definition of partial incapacity (as found in the charge to the jury) testified that any disability appel-lee has is a partial permanent disability rather than a total and permanent disability and that such partial permanent disability would have to date from September 18, 1973.

To uphold a recovery for total and permanent incapacity, the evidence must show not just that the workman is disabled, and not just that such disability be from performing the usual tasks of a workman, but the evidence must show that the workman is disabled to such an extent that he cannot get and keep employment. The testimony from this trial is convincing that appellee has suffered some permanent partial incapacity and that he cannot now perform heavy lifting and running such as he was performing when he was injured. But the overwhelming evidence from this record shows that appellee’s condition does not and has not prevented him from obtaining and retaining permanent and lucrative employment calling for lighter duties which lighter duties he is able to perform full time. Therefore, after having carefully considered all the facts and circumstances of this case, we are compelled to hold that the jury’s finding in Special Issue No. 3C (that Plaintiff’s total incapacity is of permanent duration) was so contrary to the overwhelming weight and preponderance of all the evidence as to be clearly wrong and unjust. Appellant’s point of error No. 3 is sustained. Therefore, the judgment must be reversed and the cause is remanded for a new trial. See Commercial Insurance Company of Newark, New Jersey v. Kempe, 440 S.W.2d 919 (Tex.Civ.App.—Dallas 1969, no writ); Travelers Insurance Company v. Smith, supra; Texas Employers’ Ins. Ass’n v. Moran, 261 S.W.2d 855 (Tex.Civ.App.—Eastland 1953, writ dism’d); Texas Employers’ Insurance Association v. Vineyard, 316 S.W.2d 156 (Tex.Civ.App.—Dallas 1958, no writ); Texas Employers’ Insurance Association v. Norton, 278 S.W.2d 287 (Tex.Civ. App.—Amarillo 1955, writ dism’d); Fidelity & Casualty Company of New York v. Burrows, 404 S.W.2d 353 (Tex.Civ.App.—San Antonio 1966, writ ref’d n. r. e.).

REVERSED AND REMANDED.


author: McKAY, Justice.

text:
    TEXAS FARM PRODUCTS COMPANY, Appellant, v. Charles Curtis LEVA, Appellee.
    No. 890.
    Court of Civil Appeals of Texas, Tyler.
    April 15, 1976.
    Rehearing Denied May 6, 1976.

      Mike Hatchell, Ramey, Flock, Hutchins, Grainger & Jeffus, Tyler, William Drew Perkins, Lufkin, for appellant.
    Dale Friend, Kronzer, Abraham & Watkins, Houston, for appellee.
   McKAY, Justice.

Appellee brought this action against his employer, Texas Farm Products Co., appellant, as a common law damage suit for personal injury to his right hand while he was working on his job. Trial was before a jury, and based upon the verdict, the trial court rendered judgment for appellee in the total amount of $91,000. Appellant challenges the action of the trial court by nine points of error.

The court submitted a single issue on negligence, a proximate cause issue, and a damage issue with six separate elements. The jury found against appellant on the negligence and proximate cause issues, and awarded damages to appellee on each element of damage.

Appellant attacks the answers of the jury to subsections (d), (e), and (f) of issue 3 on the grounds that there is no evidence to support the answers, that each such answer is not supported by any probative evidence or by factually sufficient evidence, and that each such answer is against the great weight and overwhelming preponderance of the evidence. Appellant further complains that the damages awarded in each answer in (d), (e) and (f) are excessive.

Appellant is subject to the workmen’s compensation provisions in Art. 8306, et seq., but it does not carry workmen’s compensation insurance. Even though appellant plead common law defenses of volenti and contributory negligence, no such issues were submitted as they were not available to appellant.

In passing upon the no evidence points, we must view the evidence in its most favorable light in support of the jury finding of the vital fact, considering only the evidence and the inferences which support the finding and rejecting the evidence and inferences which are contrary to the finding. In passing upon the insufficient evidence points we must consider all the evidence in the record, both favorable and unfavorable to the jury verdict, and set aside the verdict and remand the cause if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 244 S.W.2d 660 (Tex.1952); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960).

Appellee was a 21 year old college student who was employed by appellant to grease and oil and change the filters and fluid in appellant’s motor vehicles. After he had worked only a few days, appellee was told to service a forklift. Appellee’s immediate supervisor, Murph King, pointed out for him the various grease fittings, location of the oil pan, and the hydraulic fluid compartments. Appellee had never serviced a forklift. In order to drain the oil from the machine, the oil pan bolt which was located underneath the center of the machine had to be loosened and removed. It was necessary to jack up the forklift to gain access to the oil pan bolt. Appellee found a large hydraulic jack near his work station, discovered by investigation how it operated, slid it underneath the rear of the forklift and jacked up the machine. He then serviced that machine including the loosening of the oil pan bolt underneath the center of the forklift.

When he finished that job another forklift was brought to his work stall to be serviced. While appellee was servicing the first forklift, Murph King had observed his use of the big jack, and King brought him a smaller hydraulic jack which King indicated was especially designed for forklifts and directed appellee to use the smaller jack. Appellee proceeded to jack up the second forklift from the rear with the smaller jack. He then attempted to loosen the oil pan bolt but found it was too tight and that he needed a different wrench to apply more leverage to it. As he was withdrawing his right hand from underneath the machine, the forklift slipped from the jack and its wheel caused a severe and crushing injury to his right hand. The record indicates that the lift portion of the jack had not been placed at the proper location underneath the rear of the forklift.

Appellant attacks the jury award of $22,-500.00 in damages for loss of earning capacity which appellee will suffer in the future. Appellant argues that damages for diminution of earning capacity are for a general loss of the ability to earn and not just for the loss of the ability to perform a particular kind of work or to pursue specific employment, and that one may suffer no diminished capacity to earn even if his injuries force an abandonment of or an inability to pursue a particular trade or line of employment. Appellant further maintains that where a claimant’s earning capacity has only been impaired but not obliterated, the loss of earning capacity can best be shown by comparing his actual earnings before and after his injury.

Appellant cites the old case of El Paso Electric Ry. Co. v. Murphy, 49 Tex.Civ.App. 586, 109 S.W. 489 (1908, writ ref’d), to support its proposition and argument. While the Murphy case holds that evidence of what an injured party earned in salary or wages both before and after his injury is admissible, the case also holds:

. . Where one’s earning capacity is not destroyed, but only impaired, the damages he has sustained can be best shown by what he was capable of earning before he was injured and what he was capable of earning afterwards, and the difference will indicate the damages he has sustained. It must be observed that the matter to be determined is not what he actually earned before his injury, but what his earning capacity actually was, and to what extent that capacity has been impaired. . . . ” (Emphasis added.)

The amount which an injured party might have earned in the future is always uncertain and such amount must be largely left to the sound discretion of the jury, but the verdict must be based on more than conjecture and it must be an intelligent judgment based upon facts of record. McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943). Mclver further says, “If plaintiff’s earning capacity is not totally destroyed, but only impaired, the extent of his loss can best be shown by comparing his actual earnings before and after his injury.”

When the contention is made that the jury’s evaluation of damages is erroneous the burden of establishing that proposition is upon the party making the complaint. Hammond v. Stricklen, 498 S.W.2d 356 (Tex.Civ.App.-Tyler 1973, writ ref’d n. r. e.); City of Austin v. Selter, 415 S.W.2d 489 (Tex.Civ.App.-Austin 1967, writ ref’d n. r. e.). When an appellant claims that dam ages awarded by a jury are excessive, “in the absence of an affirmative showing of bias or prejudice the Courts of Civil Appeals will give every intendment to the evidence supporting the verdict.” City of Austin v. Selter, supra; Texas Consolidated Transportation Co. v. Eubanks, 340 S.W.2d 830 (Tex.Civ.App.-Waco 1960, writ ref’d n. r. e.).

Appellee dropped out of school after his sophomore year in high school and became employed by Sears in Houston principally repairing bicycles and lawn mowers. He worked there about two and one-half years and was paid approximately $125.00 per week. He then worked at Al’s Wholesale Distributor in Houston as a mechanic on power lawn equipment for five or six months with pay at about $140.00 per week. He then married and moved to Pasadena to attend San Jacinto Junior College. After passing a G.E.D. test (a high school equivalent test), he attended San Jacinto two semesters and worked part time at a gasoline service station with general duties at $2.00 per hour. Then he and his wife moved to Nacogdoches so he could attend Stephen F. Austin University. He was not enrolled immediately, and he obtained a job at an Exxon station in Nacogdoches. He worked there only a short time at $2.00 per hour before he was employed by appellant at $1.85 per hour. He had done oil and grease jobs on passenger cars on both service station jobs.

The record shows that as a result of his injury appellee had his little finger on his right hand amputated, his ring finger became permanently stiff in a curved position, and he is unable to make a fist with his right hand.

Appellee had diminished strength in his hand and he cannot grasp objects. His skin is tender and sensitive. He is right-handed. Before the injury he could not only do his work, but he could also type, play tennis and play the saxophone. He can type slowly but cannot grasp a tennis racquet well, nor is he able to play the saxophone. He cannot do automobile or other mechanical work. He has skin grafts on the top of his hand, but there are or were open areas between his thumb and index finger where there was no skin and the tissue was exposed. Dr. Epstein testified he had 20% permanent impairment of the function of his hand, but that he had normal use of the thumb, index and middle fingers.

Since his injury appellee worked again for appellant for $2.00 per hour. He worked a short time for a contractor installing floor covering at one of the buildings on campus at $3.00 per hour, and he was working at Collins Electronics at $1.75 per hour at the time of trial. He was being paid $1.85 per hour at the time of injury. Ap-pellee testified that he was a sophomore student majoring in Political Science and that he hoped to get his degree and then enter law school and receive a law degree.

The record indicates that appellee has had limited working experience since his injury and that at the time of trial he was a college student. He has not been in the general labor market. Even though appellee indicates a strong desire to obtain a degree in Political Science and enter law school, there is no certainty that he can do so. He may be required to work with his hands indefinitely. It is common knowledge that it becomes increasingly difficult to be admitted to law school. We are of the opinion that there is sufficient evidence of probative force to support the answer of the jury to subsection (d) of issue 3, and that such answer is not against the great weight and overwhelming preponderance of the evidence. Neither are we convinced that the award of damages in 3(d) is excessive.

“In determining whether a verdict is ‘excessive’ the courts must review only that evidence favorable to the award, and the findings of the jury thereon will not be disturbed on ground of ‘excessiveness’ if there is any evidence to sustain the award; they will not merely interfere and substitute their judgments, nor is it material that the courts might have awarded a lesser sum as fact finders; there must be some circumstantial indication of bias or prejudice . . . ” Hammond v. Stricklen, supra, and cases cited.

Appellant’s points one, two and three are overruled.

In points 4 through 9 appellant attacks the jury’s award of $10,000.00 for physical and cosmetic impairment in the past (issue 3(e)), and the award of $20,000.00 (f) for physical and cosmetic impairment which, in reasonable probability, he will suffer in the future. Appellant charges that there is no evidence, factually insufficient evidence, and that each answer is against the great weight and overwhelming preponderance of the evidence.

Appellant made no objections to the court’s charge. The question then evolves into what evidence does the record reveal on the separate issue of physical and cosmetic impairment. The jury was instructed “to consider each element of damage separately so as not to include damages for one element in any other element.” Our courts have had difficulty in determining whether recovery for loss of earning capacity and a separate recovery for physical impairment constitutes a double recovery.

In the old case of International & G. N. Ry. Co. v. Butcher, 98 Tex. 462, 84 S.W. 1052 (1905), the court reversed and remanded the case because of the objection that the charge permitted a double recovery by submitting four groups of facts upon each of which the jury was instructed, if they found for the plaintiff, to find damages as follows:

“First. Physical and mental suffering, past and future. Sécond. The future effect of the injuries upon Butcher’s mental and physical health. Third. For any impairment of his ability or capacity to pursue, after he arrives at his majority, the course of life he might otherwise have followed. Fourth. For decreased physical and mental ability to labor and earn money.”

The reversal in Butcher was because the “charge separated the effects of the injuries in such way as to allow the jury to assess more than one sum for a disability to earn money.”

The Butcher opinion reasoned that: “The injuries which would produce a future effect upon his physical or mental health would necessarily cause the impairment of his ability or capacity to pursue a calling that he otherwise could have pursued, and such physical and mental impairment as would have the effect in the future to prevent Butcher from pursuing any vocation that he might have chosen would decrease his ability to labor and earn money. The elements of the last three propositions are so blended in their effects upon the sufferer that they are not capable of separation so as to admit of distinct compensation. The decreased capacity to labor and earn money would necessarily be a result of the impairment of physical and mental health, and would be embraced in the incapacity to follow the calling he might otherwise have chosen. Incapacity to earn money could result from nothing except physical or mental injury, and would be embraced in incapacity to pursue any desirable vocation . . . ”

The cases of International-Great Northern R. Co. v. King, 41 S.W.2d 234 (Tex. Comm’n App.1931, holding approved), and Yessler v. Dodson, 104 S.W.2d 95 (Tex.Civ. App.-Amarillo 1937, writ dism’d), followed and cited Butcher, and they, like Butcher, were reversed on objections to the charge. In Missouri, K. & T. Ry. Co. of Texas v. Beasley, 106 Tex. 160, 155 S.W. 183, 187, 188 (1913), the court held that a charge which instructed the jury that they could consider past and future loss of time, decreased capacity to earn money in the future, and past and future mental and physical suffering would permit double recovery. There was an objection to the charge on that ground.

The problem presented here is discussed in Green v. Baldree, 497 S.W.2d 342 (Tex. Civ.App.-Houston (14th Dist.) 1973, no writ), at pages 348, 349, 350:

“It long has been held proper for a trial court in the submission of the damage issue in a personal injury case to direct the jury’s attention to the particular elements of damage that may, under the pleadings and evidence, be considered in answering that issue. It is also proper that the court by instruction limit the jury’s consideration to those elements of damage so listed. Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880 (1948). It is sometimes difficult to direct the jury’s attention to those different elements of damage and at the same time be assured that the jury will not consider one of them twice. .
“Another facet of the damage issue in a personal injury case which the courts have considered in connection with the possibility of double recovery grows out of the submission of both loss of earning capacity and physical impairment as separate elements of damage. .
* * * * * *
“It would not be proper in every personal injury case to instruct the jury that it might consider loss of earning capacity, pain and physical impairment as separate elements of plaintiff’s damage. In order to be entitled to that submission the plaintiff must sustain the burden of proving that the effect of his physical impairment extends beyond any impediment to his earning capacity and beyond any pain and suffering to the extent that it produces a separate and distinct loss that is substantial and for which he should be compensated. . . . ”

The question presents itself: Even when there is no objection to the charge that elements of damage separately submitted to the jury for separate answers permit double recovery, may the same evidence be used to award damages to appellee for loss of earning capacity and for physical impairment when the complaint on appeal is no evidence, insufficient evidence and excessive damages? If the jury award for physical impairment was for the loss of earning capacity because of physical impairment it would be a double recovery. Nevertheless, there may be physical impairment which bears no relation to economic loss and does not necessarily affect an injured party’s capacity to work and earn money. In the instant case the record reveals that appellee has substantial limitations in typing and playing tennis, and he can no longer play the saxophone because of his physical impairment. In the absence of a proper objection and because the trial court did instruct the jury not to include damages for one element in any other element, the jury could properly find damages for physical impairment. Mikell v. La Beth, 344 S.W.2d 702, 709 (Tex.Civ.App.-Houston 1961, writ ref’d n. r. e.).

“Disfigurement is also a proper element of damage aside from any effect it might have on earning capacity.” Houston Lighting & Power Co. v. Reed, 365 S.W.2d 26, 30 (Tex.Civ.App.-Houston 1963, writ ref’d n. r. e.). There is evidence in the record that appellee was reluctant to show his hand to his wife, that he was embarrassed to shake hands, and that there were some portions of the back of his hand where the tissue was exposed.

Since physical and mental pain and suffering, and past and future loss of earning capacity are covered in other issues, the jury could properly award damages for no-neconomic physical impairment in 3(e) and for cosmetic disfigurement in 3(f). We find there is factually sufficient evidence to support issues 3(e) and 3(f).

We have pointed out that the burden of establishing that the damages found by the jury are excessive is on the party complaining, and the jury findings will not be disturbed if there is evidence to sustain the award. There must be some indication of bias or prejudice, and in absence of an affirmative showing of these, “the courts of civil appeals will give every intendment to the evidence supporting the verdict.” Hammond v. Stricklen, supra, p. 363.

While the aggregate total of the damages is large, we find no reversible error in the record. Appellant’s points 4 through 9 are overruled.

Judgment of the trial court is affirmed.

      . “ISSUE NO. 1: Do you find from a preponderance of the evidence that under the facts and circumstances presented to you by the evidence the Defendant, Texas Farm Products Company, or any of its servants, agents or employees, were negligent in failing to provide proper equipment or instruction for the Plaintiff?
      “Answer ‘Yes’ or ‘No’.
      “ANSWER: ‘Yes.’
      “If you have answered Issue No. 1 ‘Yes’ and only in that event, then answer Issue No. 2. “ISSUE NO. 2: Do you find from a preponderance of the evidence that such negligence was a proximate cause of the occurrence in question?
      “Answer ‘Yes’ or ‘No’.
      “ANSWER: ‘Yes.’
      “ISSUE NO. 3: What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Charles Curtis Leva for his injuries which you find from a preponderance of the evidence resulted from the occurrence in question?
      “Answer separately in dollars and cents with respect to each of the following elements:
      “(a) Physical pain and mental anguish in the past. ANSWER: ‘$25.000.00’
      “(b) Physical pain and mental anguish which, in reasonable probability, he will suffer in the future. ANSWER: ‘$12.500.00’
      “(c) Loss of earnings in the past, since he last worked for Texas Farm Products Company. ANSWER: ‘$1.500.00’
      “(d) Loss of earning capacity which, in reasonable probability, he will sustain in the future. ANSWER: ‘$22.500.00’
      “(e) Physical and cosmetic impairment in the past. ANSWER: ‘$10.000.00’
      “(f) Physical and cosmetic impairment which, in reasonable probability, he will suffer in the future. ANSWER: ‘$20.000,00’
      “You are instructed that in answering Issue No. 3 to consider each element of damage separately so as not to include damages for one element in any other element.”


author: MORGAN, Judge.

text:
    Hugh Dale HOSKINS and Dorothy M. Hoskins, Respondents, v. SHELBY COUNTY, Missouri, et al., Appellants, and Valley Drainage District, a corporation, et al., Respondents.
    No. 59246.
    Supreme Court of Missouri, En Banc.
    April 14, 1976.
    Rehearing Denied May 5, 1976.

      Dan Bollow, Bollow, Crist, Bollow & Wallace, Shelbina, for appellants.
    Paul Brown and Patrick F. McLaughlin, Moser, Marsalek, Carpenter, Cleary, Jaeck-el, Keaney & Brown, St. Louis, for respondents.
   MORGAN, Judge.

Shelby County (defendant-appellant) seeks reversal of a judgment which directs it to construct a new bridge across a drainage ditch located in said county. Having transferred the cause from the Court of Appeals on application of the county, we decide the same as on original appeal.

The suit was initiated against the county and the Valley Drainage District by the owners (plaintiffs-respondents) of approximately 723 acres of land situated along the south side of east-west County Road No. 152. The drainage ditch, now commonly referred to as Salt River, runs generally in a northerly and southerly direction (across No. 152) through said land and divides it into two near equal tracts.

Around 1914 a bridge (which, with approaches, was approximately 140 feet long) had been constructed across the new channel, presumably by the district. In 1970 the east approach became impassable and in 1973 the entire bridge “became so delapi-dated” that it fell to the bottom of the ditch. Between the latter two dates, plaintiffs had filed this action in two counts. The first sought a declaratory judgment as to which entity should replace the bridge; and, the second requested a mandatory injunction calling for that duty to be performed.

After trial, the court sustained the district’s motion for dismissal and entered the judgment from which the county now appeals. It provides, in part:

. that the defendant county court and the judges thereof, immediately and without delay, obtain from a competent engineer a determination and estimate of the cost of a sufficient crossing of the ditch, commonly called ‘Salt River’, at or immediately adjacent to county road 152, said crossing to be sufficient to carry highway traffic including farm machinery of the size, width and weight used in the general area of Shelby County, and immediately thereafter obligate the Road and Bridge Funds of Shelby County, and the credit of Shelby County, if that becomes necessary, and immediately and without delay contract, in accordance with law, for the construction of such crossing and thereafter maintain such crossing in accordance with law.

Prior to considering the reasoning of the trial court, we note those statutory provisions upon which such rulings were made and the factual setting. They are, in part, as follows:

234.010 — Each county court shall determine what bridges shall be built and maintained at the expense of the county
242.350(3) — Any owner of land within or without the district may, at his own expense, and in compliance with the terms and provisions of section 242.010 to 242.-690, construct a bridge across any drain, ditch, canal or excavation in or out of said district.
242.350(4) — All drainage districts shall have full authority to construct and maintain any ditch or lateral provided in its plan for reclamation, across any of the public highways of this state, without proceedings for the condemnation of the same, or being liable for damages therefor. Within ten days after a dredge boat or any other excavating machine shall have completed a ditch across any public highway, a bridge adjudged sufficient by the county court of said county or counties shall be constructed over such drainage ditch where the same crosses such highway, and after such bridge has been constructed it shall become a part of the road over which it is constructed and shall be maintained by the authority authorized by law to maintain the road of which it becomes a part. (Emphasis added.)
242.350(5) — When any drainage district has heretofore constructed or shall hereafter construct a bridge over a drainage ditch where the same crosses any public highway, said drainage district shall not be under obligation thereafter to further maintain or reconstruct any such bridge or bridges for more than twenty years after it first constructed or constructs such bridge at said place. If said bridge has been constructed by the drainage district and has become a part of said road and is then destroyed the authorities having control of the road are authorized, if they desire, to reconstruct such bridge, provided, however, the word corporation as used in this section shall not apply to the state or any political or civil subdivision thereof. (Emphasis added.)

Factually, the record reflects that No. 152 is a dirt road. At a point two and one-half miles east of the ditch, it connects with improved Route N; and, at a point three-fourths mile west of the ditch, it connects with improved Route MM. In the latter strip, the dirt road (No. 152) crosses a bridge (with a five-ton load limit) over some part of the original channel of Salt River. Plaintiffs are residents of Illinois and purchased the land in 1959. For some period of time it has been farmed by tenants. It seems agreed that prior to the collapse of the bridge, the county had kept that part of No. 152 (east of the ditch) in “excellent condition.” Responsibility for that part west of the ditch was that of the Clarence Road District — not a party to this action. In 1967, however, said road district and the county jointly had put a new floor on the bridge with the apparent understanding that the county was responsible for the east one-half and the road district for that to the west. When the east approach started to give way, plaintiffs and some of their farm operators contacted the county court on several occasions. Estimates were made that at that time the east approach could have been repaired for eight to nine thousand dollars; but that it would now cost over sixty thousand to make a “new” crossing with a “used” bridge. It seems agreed that the county court did not declare that it would never take care of the problem, but all meetings ended with the court saying the money was not then available. One solution discussed was the giving of the old bridge to plaintiffs that they might make some sort of crossing. The Presiding Judge of the county court testified that when he examined the east approach, he saw that the west abutment also was broken in two or three places; that there had been a lot of flood damage and “we didn’t feel like we could do anything”; that a farmer to the north had dug a ditch on his land that directed “excessive water right into these approaches to the bridge” ; that “it was a risky bridge in the condition it was before the east approach washed out” ; that it was “used very little” ; that “we felt the money should be spent on a more traveled road . . . where it would do more people good”; and, that “with the amount of damage we have this year on main and heavily traveled roads, I can’t see where we can spend money on a dirt road that is traveled very little.” One tenant testified that the land (both tracts) had been farmed since the bridge fell, but that “it wasn’t the best conditions.” He stated the bridge, before it fell, was too small for most equipment. His words were: “. . . the cultivator wouldn’t fit unless you took it off. The planter wouldn’t fit across it. One certain type of planter would, but not all planters would. And the combine wouldn’t unless you had a real small head and most of ours was bigger * * * and the disk wouldn’t and the mulcher wouldn’t * * * You could load it and haul it across it though. You could load them on a trailer and go through sideways and they’d fit.” Others agreed as to the “inconvenience” to plaintiffs, but that “it [the bridge] never had many come through.” From a financial standpoint, plaintiffs offered testimony that they had one offer to purchase at a fair price from a prospect who backed out when he saw the bridge down; and the county established that it had other bridges down and that each year all revenue, plus some of that anticipated from the next year, was spent for roads and bridges. There are eleven bridges across Salt River in Shelby County and the trial court found that: “The average distance between crossings is approximately 2.4 miles to 5 miles and with the bridge at the locus out the distance between the nearest bridges up and down river is 6¼ miles.”

We turn, again, to the judgment entered by the trial court.

First, it declared that the Valley Drainage District had no duty or liability by virtue of § 242.350(5) (as amended in 1949); because the bridge in question had been constructed more than twenty years before. That finding was correct. Swisher Inv. Co. v. Brimson Drainage Dist., 362 Mo. 869, 245 S.W.2d 75 (1952).

Second, as heretofore noted, the county court was ordered to obligate the “credit” of the county and immediately construct a bridge “sufficient to carry highway traffic including farm machinery of the size, width and weight used in the general area.” The ruling was predicated on the following approach to the problem which can be outlined and summarized as follows: (1) Plaintiffs had standing to file the suit by virtue of their suffering a unique and special injury not common to the community in general. New v. South Daviess County Drainage Dist., 240 Mo.App. 807, 220 S.W.2d 79 (1949). (2) The county court abused the discretion granted in § 234.010, supra. (3) The duties of the county court are “specific and mandatory” under § 242.350(4) as to maintenance of the bridge since it became a “part of the road . . . and shall be maintained by the authority authorized by law to maintain the road . . .” (4) The county court, having failed that duty, must not only replace the entire bridge but must rebuild the same on a “larger” scale to accommodate the size of present day farming equipment. (5) The question presented has never reached the appellate courts, but it was recognized as a possibility in dicta found in State ex rel. Bartle v. Coleman, 33 Mo.App. 470 (1889), at l.c. 476, wherein the court said: “We need not decide whether or no, upon a proper case made, the discretion of the county court in failing to repair a public bridge might not be so unjust and oppressive as to call for its review by the courts having supervisory control.”

The parties appreciate, as becomes obvious from a reading of the judgment entered, that the trial court found the county court negligent in the performance of its duties and that the county must “respond” for its tortious conduct, i. e., replace the entire bridge (with wider specifications), including the one-half admittedly a responsibility of the Clarence Road District — which was not a party to the suit. Since the parties do not seek to rely on such an untenable analysis, we do not extend this opinion by doing so voluntarily. “The immunity from tort liability of the county as a subdivision of the state necessarily extends to the members of the county court when sued solely in their representative capacities.” Lloyd v. Garren, 366 S.W.2d 341 (Mo.1963). Compare Jefferson County v. St. Louis County, 113 Mo. 619, 21 S.W. 217 (1893).

For over fifty years, the courts of this state have been called on to place responsibility for bridges necessitated by the construction of drainage ditches through the swamp lands of this state. A reading of the cases noted will reflect that initially the common law was followed, which called for one digging a ditch across a public road to provide a bridge; that after the Act of 1909, providing that “corporations” had to provide bridges, was construed in three cases by this court to include counties, the General Assembly in 1913 amended the Act to declare that a county was not a “corporation”; that, thereafter, by implication (drawn only from the 1913 amendment), the duty was placed on drainage districts, until the 1949 amendment which limited liability of a drainage district to the first twenty years after construction. Those interested may see an exhaustive analysis of such changes in Swisher Inv. Co. v. Brimson Drainage Dist., 362 Mo. 869, 245 S.W.2d 75 (1952). In State ex rel. McWilliams v. Little River Drainage Dist., 269 Mo. 444, 190 S.W. 897 (1916) this court said, at 902: “. . . it is regrettable that a studied effort seems to have been made to render this drainage statute vague and ambiguous upon the point where the burden of bridge building lies, . . .” “The vexatious vagueness of which the learned jurist there spoke is still as annoyingly persistent in the act of 1913 as before.” State ex rel. Ashby v. Medicine Creek Drainage Dist., 284 Mo. 636, 224 S.W. 343, 345 (1920). The vacuum exists yet today.

Must Shelby County replace the bridge under the provisions of § 242.350?

We think not. Subparagraph 4 of § 242.350 pertains to any bridge thereafter constructed over a drainage ditch, and it provides that “after such bridge has been constructed it shall become a part of the road over which it is constructed and shall be maintained by the authority authorized by law to maintain the road of which it becomes a part.” This subparagraph is not limited to bridges constructed by a drainage district but would include also those constructed by a “corporation” as required in subparagraph 2 of § 242.350 or even by counties during those years prior to 1913 when the word “corporations” was construed to include counties. There is no limit provided as to the period of time the authority in charge of the road must “maintain” the bridge. Does that duty to “maintain” last forever? The judgment of the trial court assumes the answer is “yes” and is predicated necessarily on such a premise. The bridge in question is over sixty years old; and, if the absence of a statutory limitation for maintenance is considered as controlling, it would not be facetious to suggest the same duty to maintain would exist when the bridge is six hundred years old. We do not care to impute to the General Assembly an intent to create such an unreasonable result, but, to the contrary, believe that subparagraph 4 of § 242.350 must be read in conjunction with § 234.010 which, generally, places discretion in the county court as to “what bridges shall be . maintained.”

Perhaps in anticipation, plaintiffs contend that § 242.350 is specific and must take precedence over § 234.010 which is labeled general. The argument might be persuasive if § 242.350 was specific and answered the question, i. e., how long does the duty to maintain an aging bridge last? The weakness of plaintiffs’ position may be shown by an example. Considered in State ex rel. Curts v. Thomas, 183 Mo. 220, 82 S.W. 106 (1904) were statutes specifically pertaining to building bridges across streams between counties. Grand River ran between the counties of Chariton and Carroll and the need for a bridge was evident. Chariton County made money available for its half of the project. Carroll County refused and suit was brought to mandamus compliance with § 5194, Mo.Rev. Statutes 1899, which dictated that: “When one moiety equal to one-half the expense of building such bridge, shall be raised by subscription, both county courts shall forthwith unite to cause such bridge to be built, and shall pay the residue of the expense of the bridge in the proportion herein before directed.” (Emphasis added.) In denying relief, this court said, l.c. 108: “The law governing the building of public bridges is embodied in chapter 84, 2 Rev.St.1899, of which said sections 5193 and 5194 form a part; and, to properly understand those sections, they must be read in connection with the precedent sections of that chapter, by section 5182 of which it is provided that ‘each county court shall determine what bridges shall be built and maintained at the expense of the county, * * * ’ and by section 5185 of which it is provided that ‘if the county court be of the opinion that a bridge is necessary, and that it shall be built at the expense of the county, they shall determine in what manner and of what materials the same shall be built and the probable cost thereof. * * * ’ The provisions of the statute following, down to and including sections 5193 and 5194, prescribe in detail the manner in which the power and discretion thus vested in the county court shall be exercised under different and variant circumstances, and, among these, under the circumstances set out in those two sections. But the law nowhere contemplates that any bridge shall be built at the expense of the county, in whole or in part, except such a bridge as the county court shall have determined to be necessary, in view of its locality, utility, cost, and the condition of the public fund that may be used for that purpose, considered in connection with other like claims upon such funds for like purposes. The discretion thus vested in the county court cannot be wrested from it or exercised by any other tribunal.” A similar result may be found in State ex rel. McMillan v. Woodside, 254 Mo. 580,163 S.W. 845 (1914). Furthermore, we think it only logical that when the amendment of 1949 removed drainage districts from the picture (after 20 years) the status of such bridges became as any other placed under the general supervision of the county court.

Subparagraph 5 of § 242.350 provides that if a bridge constructed by a drainage district over a drainage ditch (after 20 years) “is then destroyed” the authority having control of the road is authorized to reconstruct such bridge “if they desire.” Plaintiffs seek to avoid the discretion thus placed by submitting that the bridge was not “destroyed” in the context the word is used in this subparagraph and that “the record is completely devoid of any evidence whatsoever as to what public or private person or corporation constructed said bridge.” Although, in passing, we do consider if obvious from the record before us that the drainage district did build the now-fallen bridge and that the parties tried the case on that premise, we need not discuss it further in view of our disposition of the question reference our interpretation of subparagraph 4 of § 252.350.

Did Shelby County abuse the discretion authorized by § 234.010? We think not.

Since the caveat heretofore noted and found in State ex rel. Bartle v. Coleman, supra, this court in many cases has further delineated the scope of the discretion reference bridges long placed with county courts. The answer has been so consistent that two further examples should suffice. In State ex rel. Cameron Special Road Dist. of Clinton County v. Everett, 245 Mo. 706, 150 S.W. 1054 (1912) the court said, l.c. 1057: “The discretion to expend the special road and bridge fund in the manner which will be most conducive to the general welfare of the inhabitants of the counties has been invested in county courts elected by the people; and it is a well-known rule of law that, where judicial officers possess discretion as to how their duty shall be performed, their discretion will not be interfered with by the writ of mandamus.” Again, in State ex rel. McMillan v. Woodside, 254 Mo. 580, 163 S.W. 845 (1914) the court said, l.c. 848: “As to the matter of determining the necessity for a bridge, the guardians of the interest of the county are clothed with full powers of decision; for no bridge could be lawfully built at the expense of the county, unless the county court had first adjudged it to be necessary, and no superior judicial tribunal is authorized to restrain or coerce the county court in rendering its opinion on that particular matter, for to that extent its action is purely discretionary under the powers given to it by the language of the statute.” See also: Humphreys v. Dickerson, 216 S.W.2d 427 (Mo.1948); and, State ex rel. Lane v. Panky, 359 Mo. 118, 221 S.W.2d 195 (1949).

Regardless of the scope of discretion to be given the county in this instance, plaintiffs cannot prevail. The facts show that the county tax levies are at constitutional and statutory máximums; that all available funds plus some portion of each year’s anticipated funds are being expended in the upkeep and repair of the many roads and bridges in the county; that the bridge in question would be a convenience to plaintiffs, but the evidence shows that there is no public necessity or even public utility involved; that there is a complete lack of any evidence that funds are being expended by the county other than for the best interest of the citizens of the county as a whole. Under such a state of facts, any decision as to what should be done in the premises should be made by those the citizens of this state have selected, i. e., the members of the county court; and, under the record presented there is nothing to indicate that said court acted in an “unjust” or “oppressive” manner.

The judgment is reversed.

All concur.

      . All statutory references being to RSMo 1969.

      . Representative cases are: State ex rel. Jones v. Chariton Drainage Dist. No. 1, 252 Mo. 345, 158 S.W. 633 (1913); State ex rel. McWilliams, 269 Mo. 444, 190 S.W. 897 (1916); State ex rel. Ashby v. Medicine Creek Drainage Dist., 284 Mo. 636, 224 S.W. 343 (1920); State ex rel. Chamberlin v. Grand River Drainage Dist. of Cass and Bates Counties, 311 Mo. 309, 278 S.W.2d 388 (1925); New v. South Daviess County Drainage Dist., 240 Mo.App. 807, 220 S.W.2d 79 (Mo.App.1949); and, Swisher Inv. Co. v. Brimson Drainage Dist., 362 Mo. 869, 245 S.W.2d 75 (1952).