author: KEITH, Justice. DIES, Chief Justice

text:
    TEXAS INDUSTRIAL ACCIDENT BOARD et al., Appellants, v. INDUSTRIAL FOUNDATION OF THE SOUTH, Appellee.
    No. 7717.
    Court of Civil Appeals of Texas, Beaumont.
    July 10, 1975.
    Rehearing Denied Aug. 21, 1975.
    Second Rehearing Denied Sept. 11, 1975.

      Frank W. Elliott, Austin, for appellants.
    George J. Petrovich, Jr., Fort Worth, J. C. Hinsley, Austin, for appellee.
   KEITH, Justice.

This case involves the construction of the Texas Open Records Act, Tex.Rev.Civ.Stat. Ann. 6252-17& (Supp.1974-1975) (hereinafter the “Act”), as applied to claims for workmen’s compensation benefits filed by injured employees in Texas. Plaintiff sought to tie into the computer system of the Industrial Accident Board “and extract, by electronic means” certain items of information appearing on every claim for workmen’s compensation filed by every injured employee in Texas covered by that law. The trial court granted plaintiff a summary judgment allowing plaintiff to inspect and copy such claim forms, denied the summary judgment sought by the defendants, and they have appealed.

Plaintiff alleged it was a nonprofit corporation engaged in gathering information relating to workmen’s compensation claims for dissemination to its 282 members who were employers of workmen. It sought, and procured, a declaration that claims filed with the Industrial Accident Board by injured workmen in Texas, under the provisions of Tex.Rev.Civ.Stat.ATm. art. 8307, § 4a (1967), are “public records and subject to inspection and copying by the public” as provided for in the Act. Defendants were ordered, by the writ of mandamus, to permit copying of all such claims so as to disclose the file number of the claim, claimant’s name, his social security number, his employer, the date of injury and the nature thereof, and the name of claimant’s attorney, if any.

Defendants appeal upon five points of error which require a more detailed statement in connection with several of the contentions brought forward.

At the outset it is well to state that while the Act is new and as yet without judicial interpretation, we bear in mind the purpose as set out in Sec. 1 and the requirement that it “be liberally construed in favor of the granting of any request for information.” Sec. 14(d). We likewise readily concede that the Industrial Accident Board is a governmental body as defined in Sec. 2(1)(A) and that under Sec. 8 a writ of mandamus may be issued to compel the Board to make public information as defined in the Act available under the Act.

But, in deciding this appeal we must bear in mind two other rules, those relating to the writ of mandamus and those governing the granting of summary judgments.

When Sec. 8 speaks of the right to a writ of mandamus, it says that the person requesting the information “may seek a writ of mandamus” and we are of the opinion that the writ should issue only under the general rules relating to the granting of the writ, some of which were set out by Justice Sharp in Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793, 795 (1941):

“Mandamus is an extraordinary writ, and is not issued as a matter of right, but rests largely in the sound discretion of the Court. * * * The writ will not be granted unless the petition shows that the relator has a clear right to the writ.
* % % * sjc *
“While mandamus is a common law writ and not an equitable remedy, its issuance is largely controlled by equitable principles.”

One of the cases relied upon by Justice Sharp in Callahan, supra, was Westerman v. Mims, 111 Tex. 29, 227 S.W. 178, 181-182 (1921), quoting from a decision of the Supreme Court of the United States, and saying:

“ ‘Mandamus * * * will not be granted in aid of those who do not come into court with clean hands,’ since the writ issues ‘to remedy a wrong, not to promote one.’ ”

The Court continued:

“The rule that he who seeks a mandamus must present his application with clean hands has no different meaning from the general maxim in equity that ‘he who comes into equity must come with clean hands.’
⅜: % ⅜ ‡ ⅜!
“Having concluded that the petition of relators is grounded on conduct amounting to an invitation to, and hence participation in, an act violative of good faith and of conscience, it follows that relators did not come into court with clean hands, as required to entitle them to the relief prayed for, and hence the mandamus is denied.”

Chief Justice Cureton, in City of Wink v. Griffith Amusement Co., 129 Tex. 40, 100 S.W.2d 695, 702 (1936), applied this maxim in this manner:

“One whose business violates the public policy of the state . . . having no legal right to be protected, and not coming into court with ‘clean hands,’ because his activities violate the public policy of the state, cannot be given relief in a court of equity.”

Defendants’ answer tendered several defenses, the first of which was that the information sought by plaintiff was to be used by its member firms to discriminate against prospective employees in violation of Tex.Rev.Civ.Stat.Ann. art. 8307c (Supp. 1974-1975).

Defendants, pursuant to Texas Rules of Civil Procedure, rule 168, served interrogatories upon plaintiff seeking to learn, inter alia: (1) the purpose of wanting the file number of the claim, claimant’s social security number, claimant’s employer’s name, and the name of claimant’s attorney; (2) if such information had ever been used as a basis for discharging an employee of a member company of plaintiff; (3) if such information had ever been used as the basis for refusing to employ a prospective employee by a member company.

Thereupon, plaintiff filed its motion to suppress and to strike all of such interrogatories. The trial court, although requiring answers to a few of the interrogatories (which are not material to this appeal) sustained plaintiff’s motion as to the interrogatories listed above and they were not answered by plaintiff.

By point five, defendants contend that the trial court erred in sustaining plaintiff’s motion to suppress and to strike defendants’ interrogatories which would have elicited answers showing the use which would be made of the information requested by plaintiff. We agree and sustain point five for the reasons now to be stated.

This being an appeal from an order granting a summary judgment, it is well to remember that an unusually long series of cases from our Supreme Court has declared that it is the burden of the moving party to demonstrate, as a matter of law, that there is no genuine issue of fact and that he is entitled to judgment.

Defendants contend that if permitted to exercise their discovery rights they would have established, or at least raised a fact issue, that the purpose of the request for the information was to enable plaintiff to disseminate such information to its “member companies” where it would then be used to discriminate against prospective employees of such companies. The plaintiff had alleged that its principal business activity was the compiling of industrial accident claims which “are used solely by its member companies for the purpose of assisting in checking out a prospective employee’s background prior to hiring.”

In its brief, plaintiff amplifies its purpose by saying: “The relevance of a prospective employee’s past injury to the job or task which he seeks to perform, even 'though he may be physically incapable of performing same, is the reason [plaintiff] seeks to inspect the records of [defendants].” It also asserts that small businesses cannot afford pre-employment medical examinations of their employees; and, in other instances, union contracts prohibit such examinations. From this base it argues that since the employer’s insurance carrier is liable to the injured workman for the consequences of any injury, even if aggravated by a preexisting disability, the information should be available to such member.

It then cites the recent decision of Swanson v. American Manufacturing Company, 511 S.W.2d 561 (Tex.Civ.App.—Fort Worth 1974, writ ref’d n. r. e.), holding that an employer may lawfully discharge an employee who falsified his employment application by concealing prior compensable injuries notwithstanding Art. 8307c.

Blacklisting is defined in and prohibited by Tex.Rev.Civ.Stat.Ann. arts. 5196c and 5196d (Supp.1974-1975), respectively, while Art. 8307c prohibits discrimination against any employee who has in good faith filed a claim, hired a lawyer to represent him in a claim, or instituted a proceeding under the workmen’s compensation law.

This series of statutes clearly states the public policy of this state; and, if one of the purposes of the plaintiff was to violate or to assist in the violation of such stated policy, it did not come into court with clean hands. Thus, if the facts alleged by the defendants as to the invidious purpose of plaintiff in the acquisition of the information were to be established upon the trial, plaintiff would not be entitled to the writ of .mandamus. City of Wink v. Griffith Amusement Co., supra (100 S.W.2d at 702); Westerman v. Mims, supra (227 S.W. at 182).

In this summary judgment proceeding, with the plaintiff having the burden of showing its right to the writ as a matter of law, the trial court abused its discretion and erred in depriving the defendants of the right to utilize the discovery rules to prepare their defense. We need not speculate as to the results which defendants would have obtained in their discovery; the fact remains that they were entitled to attempt, at the very least, to procure admissible evidence and were denied this right. No litigant should be cast in summary judgment until he has had an opportunity to prepare his case for trial. Cf. Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974), involving special exceptions to pleadings. See also, Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, 237 (1956); “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934, 936 (Tex.1972).

But, plaintiff argues that Sec. 5(b) of the Act precludes any inquiry on the part of the public agency into the purpose to which such information is to be used. We are unwilling to attribute such a broad meaning to the words used by the Legislature. When the Board, from the meager record which we review, had reason to believe that plaintiff intended to use the information to aid in blacklisting and discriminating, courts should not, with knee-jerk alacrity, lend assistance to such a project. Instead, we are of the opinion that such fact should be determined by the trial court so as to be in position to exercise the discretion conferred by law.

Defendants’ point five is sustained and the judgment of the trial court is reversed and the cause is remanded. Because of the novelty of the case and its importance, we feel that it is our duty to discuss briefly the remaining contentions of the parties since they may be of importance in the trial of the case which we have ordered.

Much of defendants’ brief is taken up with discussion of its third point wherein they contend that the claim forms sought by plaintiff are excepted from the operation • of the Act “as information deemed confidential by the constitutional right of privacy.” A governmental body is not required to furnish information found in its records if it is “information deemed confidential by law, either Constitutional, statutory, or by judicial decision.” Sec. 3(a)(1) Act. We disagree for the reasons now to be stated and overrule such point.

Defendants’ able counsel calls to our attention many of the leading cases from the United States Supreme Court holding that the right of privacy is one of constitutional dimension. We recognize, as indeed we must, the supremacy of the several cases cited but only when confined to the particular field of conduct involved. We do not find them controlling in the case at bar.

We have not been referred to any statute or judicial decision which has declared that claims for workmen’s compensation benefits are within the protection of the doctrine of privacy; nor has counsel cited to us a decision in Texas raising the doctrine of privacy to constitutional dimensions.

Only recently has Texas joined the majority of the other jurisdictions in recognizing the right “to be let alone” by adopting in tort actions the rule that an “unwarranted invasion of the right of privacy constitutes a legal injury for which a remedy will be granted.” See Billings v. Atkinson, 489 5.W.2d 858, 860 (Tex.1973), where Justice Denton discussed many of the leading authorities. Because of our disposition of this point of error upon other grounds, we do not find it necessary to determine if the right of privacy has now attained constitutional status in Texas.

Instead, we turn to the statute itself in an effort to determine if the records sought by plaintiff are within the ambit of the Act.

In passing upon the Act, we are required to look to the purpose of the Legislature in adopting the Act and it is clearly stated in Sec. 1 in the most positive terms. This is followed by the broad language of Sec. 3(a), quoted in the margin. After providing that “[a]11 information collected, assembled, or maintained by governmental bodies” is public information and available for inspection, the Legislature carefully defined sixteen exceptions only when such information could be withheld from inspection. Subsection 14 provides that student records at educational institutions could not be inspected and copied; subsection 15 made birth and death records in the Bureau of Vital Statistics immune from inspection. It is significant that no mention is made of claims filed with the Industrial Accident Board.

It is well established in this state that the paramount or cardinal rule of construction of statutes is to ascertain and give effect to the intention of the Legislature. Many cases could be cited in support of this elementary rule; but in the interest of space we mention only a few. See, e. g., Dolan v. Walker, 121 Tex. 361, 49 S.W.2d 695, 697 (1932); State v. Shoppers World, Inc., 380 S.W.2d 107, 110 (Tex.1964); Flowers v. Dempsey-Tegeler & Co., 472 S.W.2d 112, 115 (Tex.1971). When that intention has been ascertained, it is the duty of the courts to enforce such intent. Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711, 714 (1961). We are not to look to the consequences of our action here in limiting the application of the Act to the exact words of the Act. Johnson v. Darr, 114 Tex. 516, 272 S.W. 1098, 1099 (1925).

By specifically naming the sixteen exceptions from disclosure, the Legislature in effect expressed its intention to make all other records discoverable. The maxim ex-pressio unius est exclusfo alterlus (the naming of one thing excludes another) is applicable here. The rule was stated by Justice Sharp in State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238, 241 (1943):

“It is a settled rule that the express mention or enumeration of one person, thing, consequence, or class is equivalent to an express exclusion of all others.”

We conclude that claims for workmen’s compensation filed with the Industrial Accident Board constitute “information collected, assembled, or maintained” by a governmental body and that such claims are available for inspection under Section 3(a) of the Act.

As an ancillary contention, defendants urge that Industrial Accident Board Rule 9.040, quoted in the margin, authorizes the denial of the information plaintiff now seeks in its suit. It is readily apparent that such rule, if valid and operative, would prevent any person, firm or corporation from receiving such information unless there was an open claim for workmen’s compensation for a particularly named claimant then pending before the Board or a court of competent jurisdiction. In such event, only the claimant, his attorney, the carrier, the employer at the time of the current injury, and third party litigants could obtain such information.' It is obvious that plaintiff could not secure such information, except possibly as to one of its own employees— certainly not as to all claimants on a wholesale and indiscriminate basis.

Defendants, citing cases arising under rules adopted by the Railroad Commission and the Liquor Control Board, argue that this rule has the same “force and effect of a statute.” We do not agree. The Railroad Commission exercises legislative power specifically delegated to it by the Constitution and the statutes. Texarkana & Ft. S. Ry. Co. v. Houston Gas & Fuel Co., 121 Tex. 594, 51 S.W.2d 284, 287 (1932). The Texas Liquor Control Board (now known as Texas Alcoholic Beverage Commission) exercises police power under a statute delegating broad rule-making authority. Texas Liquor Control Board v. Attic Club, Inc., 457 S.W.2d 41, 42 (Tex.1970).

Contrasted with the rule-making power of the two agencies just mentioned, the only general authority for the promulgation of rules by the Industrial Accident Board is this language found in Tex.Rev. Civ.Stat. Ann. art. 8307, § 4 (1967), “The Board may make rules not inconsistent with this law for carrying out and enforcing its provisions . . ..”

Rules promulgated by the Industrial Accident Board have fared poorly in the courts. Thus, a rule was found to exceed the delegated authority of the Board and was held invalid in Kelly v. Industrial Accident Board, 358 S.W.2d 874, 878 (Tex.Civ.App.—Austin 1962, writ ref’d). See also, Jackson v. Texas Employers' Insurance Association, 471 S.W.2d 450, 451 (Tex.Civ.App.—Eastland 1971, writ ref’d n. r. e.). In Bailey v. Texas Indemnity Ins. Co., 14 S.W.2d 798, 802 (Tex. Comm’n App., 1929), striking down still another rule, the Court said: “The regulations of the Industrial Accident Board cannot be used in construing the law, so as to give it a higher mandate than that of the statute.”

Defendants also cite Galacia v. Texas Employers’ Insurance Association, 348 S.W.2d 417, 420 (Tex.Civ.App.—Waco 1961, writ ref’d n. r. e.), and Clawson v. Texas Employers’ Insurance Ass’n, 469 S.W.2d 192, 195 (Tex.Civ.App.—Houston [14th Dist.] 1971), affirmed, 475 S.W.2d 735 (Tex.1972), each of which contains language to the effect that Industrial Accident Board Rules “ha[ve] the force and effect of law.” These authorities were severely wounded by Chief Justice Calvert’s repudiation of the basic holding in each case. Clawson (475 S.W.2d at 738).

Another instance of rule-making failure on the part of the Board is to be found in Burton v. I. C. T. Insurance Company, 304 S.W.2d 292, 296 (Tex.Civ.App.—Texarkana 1957, no writ), where the court held that the Legislature “did not intend to delegate legislative power to the Board, an administrative body, whereby such Board in the enactment of administrative rules could change any of the substantive laws of this state.”

In determining the validity of rules promulgated by administrative agencies, the rule is stated in Texas State Bd. of Examiners in Optometry v. Carp, 388 S.W.2d 409, 414-415 (Tex.1965):

“[R]eview by the judiciary is constitutionally limited to a determination of questions of law, i. e., whether the action is within the powers delegated to the agency and, if so, whether the action is arbitrary, capricious or unreasonable because not reasonably supported by substantial evidence.”

The rule under discussion does not appear to have any readily discernable base in the compensation statute. Instead, as we read the argument of defendants, it does not attempt to justify its promulgation by pointing to statutory authority. The statement of the point itself demonstrates the lack of statutory support.

The Act is one of general application to all governmental agencies in the State; and, we are of the opinion that the rule relied upon does not withdraw the claims from the reach of the Act since to do so would render it in conflict with the Act.

Defendants contend, alternatively, that the order of the trial court should be confined to claims filed subsequent to the effective date of the Act, June 14, 1973; but, we find no indication in the Act that the right of inspection is to operate only prospectively. Defendants’ attack is confined to the citation of the parallel provisions in the Constitution of Texas, Art. I, Sec. 16, and Constitution of the United States, Art. 1, Sec. 10. Although it is not made clear in the argument, it appears that reliance is placed upon the provisions relating to ex post facto or retroactive laws.

More than a century ago, our Supreme Court determined that the use of the words “ex post facto” is nominally confined to the criminal law, rendering an act punishable in a manner it was not when committed. Bender v. Crawford, 33 Tex. 745, 751 (1870). Having examined the cases cited and being satisfied that the text announces the correct rule, we now quote from 12 TexJur.2d, Constitutional Law, § 121, at 470 (1960):

“The distinction between the power of the legislature to enact legislation and the prohibition of the legislature to enact retroactive legislation should be kept in mind. The legislature has the same power to act retrospectively as it does to act prospectively. The prohibition found in the proscription against retroactive legislation is not a proscription against the legislative power to act. It is a proscription against a power of the legislature to destroy vested rights. Thus so long as no vested right is destroyed the right of the legislature to enact legislation effective retrospectively is not limited.” (emphasis supplied)

We find no indication in the Act that only records which came into existence after the effective date of the Act were to be discoverable. Prom the language used by the Legislature, it appears that all information within the governmental agencies at the time the request is made is subject to being inspected under the provisions of the Act. In any event, we do not find that any vested right has been destroyed by the adoption of the Act.

We conclude this overly long opinion by reference to the right of the plaintiff to intrude its information-gathering activities into defendants’ computer system. We are unable to determine from our abbreviated record whether plaintiff seeks a copy of every claim filed since 1913 or if it wants access to defendants’ computer program upon a selective basis as to particular individuals who may have filed claims. It is apparent, however, that plaintiff seeks to use the computer system in the acquisition of the information it sought in its suit.

Defendants’ summary judgment proof contained the affidavit of its Data Processing Manager which asserted that compliance with the plaintiff’s request to enter defendants’ computer program “would cause a complete breakdown of our already overloaded agency workload; it would also require the complete restructuring of our data processing system and the hiring of personnel to supply the information requested by the Industrial Foundation of the South.”

While this is properly a matter for determination of the State Board of Control, under Sec. 9 of the Act, the possibility of abuse of computer privileges is one addressed to the sound discretion of the trial court. In the law review article entitled “Privacy and the Computer,” V. Countryman, 49 Tex.L.Rev. 887, 863 (1971), the author points to some dire consequences which may flow from the invasion of privacy by entry into a computer system. We are of the opinion that such consequences may be appropriate for consideration by the trial court in the exercise of discretion in the award or denial of the writ of mandamus upon the trial which we have ordered.

Under the abbreviated record now before us, we are unable to, and do not determine whether the Legislature intended to make claims of injured workmen filed with the Industrial Accident Board available for commercial exploitation by a private corporation. See, e. g., Wine Hobby USA, Inc., v. United States Internal Revenue Service, 502 F.2d 133, 137 (3d Cir. 1974).

For the error herein pointed out, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

DIES, Chief Justice

(dissenting).

I would go further than the majority opinion and hold that the information desired by the Industrial Foundation of the Southwest cannot.be obtained. The Texas Open Records Act [Tex.Rev.Civ.Stat.Ann. art. 6252-17a § 1 (1974-1975) ] on which the trial court based his judgment herein declares that “all persons are, unless otherwise expressly provided by law, at all times entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” The information on a notice of injury or claim for workmen’s compensation can by no stretch of the imagination be an “official act . . . [of] public officials and employees.” They are private disclosures which may at times be extremely sensitive, embarrassing, even detrimental to the individual concerned. The trial court recognized this by exempting in his order “injury to the genitalia of the body.”

The Act [§ 2(2) (1974-5) of the Tex. Rev.Civ.Stat.Ann.] defines public records as “the portion of all documents, writings, letters, memoranda, or other written, printed, typed, copied, or developed materials which contains public information.” I do not regard the information appellee wishes to computerize as public information.

Art. 8307 § 4 of Tex.Rev.Civ.Stat.Ann. (1967) allows the Industrial Accident Board to “make rules not inconsistent with this law for carrying out and enforcing its provisions.” The Board has adopted Rule 9.040 as follows:

“As a prerequisite for approval of a request for a record check . . . on a claimant, there must be a workmen’s compensation claim for the named claimant open or pending before this Board or on appeal to a court of competent jurisdiction from the Board at the time the record search request ... is presented to this Board. The first, middle and last name of the claimant, age and social security number, and if possible, dates of injury and the name of prior employers must be given in request for . . . a record check.” (1961, Rev.1974)

This is a reasonable rule and offers protection to parties interested in claims before the Board.

No law is good law unless it makes good sense. It does not make good sense to me to computerize the information appellee wishes on hundreds of thousands of individuals in the files of the Industrial Accident Board.

If one. of the purposes of securing this information is to screen job applicants, it violates the spirit of Texas law. See Tex. Rev.Civ.Stat.Ann. art. 8307c § 1 (1974-5); art. 5196 (1971); art. 5196c (1974-5).

      . The defendants below were the Industrial Accident Board, an agency of the State of Texas, its chairman and members as well as its executive director. We will refer to them collectively as the defendants.

      . A proviso in the judgment excluded information relating to injuries to a claimant’s genitalia.

      . Sec. 8 of the Act reads: “If a governmental body refuses to request an attorney general’s decision as provided in this Act, or to supply public information or information which the attorney general has determined to be a public record, the person requesting the information or the attorney general may seek a writ of mandamus compelling the governmental body to make the information available for public inspection.”
      In this case, the attorney general held that the information should have been made available but defendants declined to follow his opinion.

      . This series of cases is set out in Coward v. Gateway National Bank of Beaumont, 515 S.W.2d 129, 134, fn. 4 (Tex.Civ.App.—Beaumont 1974, writ granted), and need not be repeated here.

      . Sec. 5(b) of the Act reads: “Neither the custodian nor his agent who controls the use of public records shall make any inquiry of any person who applies for inspection or copying of public records beyond the purpose of establishing proper identification and the public records being requested;

      . See, e. g., Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); et al.

      . “Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is the servant of the people, and not the master of them, it is hereby declared to be the public policy of the State of Texas that all persons are, unless otherwise expressly provided by law, at all times entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. To that end, the provisions of this Act shall be liberally construed with the view of carrying out the above declaration of public policy.”

        .Sec. 3(a) of the Act reads in part: “All information collected, assembled, or maintained by governmental bodies pursuant to law or ordinance or in connection with the transaction of official business is public information and available to the public during normal business hours of any governmental body, with the following exceptions only:

      . This decision is the only one in our jurisprudence decided by an all-woman Supreme Court of Texas, a panel appointed by Governor Neff which sat during the early months of Governor Miriam A. Ferguson’s first term of office.

      . “As a prerequisite for approval of a request for a record check or for the furnishing of information on a claimant, there must be a workmen’s compensation claim for the named claimant open or pending before this Board or on appeal to a court of competent jurisdiction from the Board at the time the record search request or request for information is presented to this Board. The first, middle and last name of the claimant, age and social security number, and if possible, dates of injury and the name of prior employers must be given in request for information. The Board will furnish the requested information or a record check only to the following: (1) the claimant; (2) the attorney for the claimant; (3) the carrier; (4) the employer at the time of the current injury; (5) third party litigants. Fees and charges for record requests may be obtained from the Industrial Accident Board.” (1961) (Rev.1974)

      . Limited authority to promulgate rules governing pre-hearing conferences is granted to the Board by Art. 8307, § 10(b), but defendants do not rely upon this statute in the presentation of the point under consideration.

      . Point Two reads: “The district court erred in rendering judgment for [plaintiff] rather than for [defendants] because the files and records involved are excepted from the operation of Article 6252-17a by Section 3(a)(1) of that statute as information deemed confidential by Texas Industrial Accident Board Rule 9.040, which has the force and effect of a statute.”

      . In a letter to defendants, plaintiff’s counsel stated: “In some of my past correspondence with your agency, I have made mention of the fact that we were aware that the Industrial Accident Board has been using a computer system for the storing of information pertaining to its files. During the last year, my client has taken occasion to investigate the technical feasibility of tying into a computer system such as the one being used by the Industrial Accident Board and extract, by electronic means, the information requested. Our past investigations reveal that this approach is technically sound and can be accomplished with a minimum of disruption to the internal workings and everyday operations of the Industrial Accident Board. It is my further understanding that by the installation of a terminal or terminals which would accommodate additional telephone lines, outside inquiry can be made upon the existing computer system which would be programmed to extract only information requested and which would not put any information into the computer system.” (emphasis supplied)


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    GLENS FALLS INSURANCE COMPANY, Appellant, v. George COVERT, d/b/a Covert Automobile Company, Appellee.
    No. 7714.
    Court of Civil Appeals of Texas, Beaumont.
    July 10, 1975.
    Rehearing Denied Aug. 21, 1975.
    Barry Bishop, Austin, for appellant.
    Terry L. Weldon, Austin, for appellee.
   STEPHENSON, Justice.

This is an action to recover under an insurance policy covering plaintiff’s business and premises. Trial was before the court and judgment was rendered for plaintiff. Findings of fact and conclusions of law were filed. The parties will be referred to here as they were in the trial court.

All material facts are uncontroverted. George Covert, d/b/a Covert Automobile Company, was insured under a policy of insurance issued by defendant, Glens Falls Insurance Company. The policy, known as a Commercial Property Policy Form, contained these provisions:

“(a) 7. Perils Insured: THIS POLICY INSURES AGAINST ALL RISKS OF PHYSICAL LOSS OR DAMAGE TO THE ABOVE DESCRIBED PROPERTY EXCEPT AS HEREINAFTER PROVIDED, including general overage and salvage charges.
“(b) 8. Perils Excluded: This Policy Does Not Insure:
* * * * * *
“(d) Loss or damage caused by or resulting from delay, loss of market, loss of use, bankruptcy, foreclosure, execution or similar proceedings, wear, tear, moth, vermin, deterioration, inherent vice, latent defect or mechanical breakdown.”

The trial court made these findings of fact:

“1. The incident giving rise to this suit occurred on December 6, 1968, when 81 vehicles safety stabilizers owned by plaintiff fell from a storage area to the floor of a building owned by plaintiff.
“2. The involved vehicle safety stabilizers are sealed units which cannot be inspected for internal damage.
“3. It is not known whether any of the involved units received internal damage.
“4. On December 17, 1968, the manufacturer of the stabilizers withdrew its warranty that the products were free of defects, and plaintiff then decided not to sell the units without the manufacturer’s warranty and made a claim against the defendant under the insurance policy mentioned below.
* * * * * *
“7. As a result of this incident which occurred December 6, 1968, the involved units lost their merchantability.”

Defendant does not question any of the findings of fact but his points of error are to the effect that this is not a claim for “physical loss or damage,” and the policy of insurance does not cover this type of loss. We agree.

We are obligated to follow the clear meaning of the rule restated by the Supreme Court of Texas in Hardware Dealers Mut. Insurance Co. v. Berglund, 393 S.W.2d 309, 314 (Tex.1965), as follows:

“The language used in the policies ‘must be construed according to the evident intent of the parties, to be derived from the words used, the subject-matter to which they relate, and the matters naturally or usually incident thereto,’ and it is only when ‘the words admit of two constructions, that one will be adopted most favorable to the insured.’ Brown v. Palatine Insurance Company, 89 Tex. 590, 35 S.W. 1060 (1896). See 13 Tex.Jur.2d 287, Contracts, § 122.”

The policy of insurance before us insures the plaintiff against all risks of physical loss or damage. As part of his cause of action plaintiff had to prove that he suffered physical loss or damage, and this he failed to do. According to plaintiff’s testimony (and he called no other witnesses) he did not know whether the devices in question were physically damaged or-not, and that he made no tests to see whether or not the devices would still work. On the other hand, defendant called an expert witness, who had made tests upon units involved in the fall and units which had not been involved in the fall, and found no difference in the two. He also testified that the units in question here were not damaged. Admittedly, plaintiff decided not to sell such units without the manufacturer’s warranty, but under the clear language of the policy of insurance before us, that was a type of loss not covered. There is no evidence of physical loss or damage, and plaintiff cannot recover.

Reversed and rendered that plaintiff take nothing.


author: BARROW, Chief Justice.

text:
    WOOD TRUCK LEASING, INC., Appellant, v. AMERICAN AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 15427.
    Court of Civil Appeals of Texas, San Antonio.
    July 16, 1975.

      Cobb, Thurmond & Bain, San Antonio, for appellant.
    Groce, Locke & Hebdon, Charles R. Shad-dox, Otto S. Good, San Antonio, for appel-lee.
   BARROW, Chief Justice.

This is an appeal from a take-nothing summary judgment. Appellant, the insured under an assigned risk automobile liability insurance policy issued by appellee, brought this suit to recover damages allegedly sustained as a result of appellee settling the claims • brought against appellant by two minors involved in an automobile accident with an insured truck. The claims were settled within the policy limits, but appellant alleged that the settlement payments resulted in higher insurance premiums to it.

The basic issue presented by appellant’s two assignments of error is the interpretation to be given to the insurance policy wherein it provides that the company “may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.”

It is well settled that under the Stowers doctrine an insurance company can be held liable to the insured for its negligence in failing to settle a claim within policy limits. Globe Indemnity Company v. Gen-Aero, Inc., 459 S.W.2d 205 (Tex.Civ.App.—San Antonio 1970, writ ref’d n. r. e.), 469 S.W.2d 164 (Tex.1971); G. A. Stowers Furniture Company v. American Indemnity Company, 15 S.W.2d 544 (Tex.Com.App.1929, holding approved). Appellant seeks to apply the converse of the Stowers doctrine to the situation where a settlement by the insurer results in injury to its insured.

Under the clear and unambiguous language of the policy contract, the insurer has the authority to make such settlement of any claim or suit as it deems expedient. This right has been uniformly upheld in the absence of fraud or bad faith. Brightwell v. Rabeck, 430 S.W.2d 252 (Tex.Civ.App.—Fort Worth 1968, writ ref’d n. r. e.); Travelers Insurance Company v. Hitchner, 61 N.J.Super. 283, 160 A.2d 521 (Sup.Ct. of New Jersey, 1960); Johnson v. Hardward Mutual Casualty Company, 109 Vt. 481, 1 A.2d 817 (Vermont 1938); Appleman, Insurance Law and Practice, § 4711 (Supp.1974). The insurer’s right to settle as it deems expedient was recognized in Travelers Insurance Company v. Hitchner, supra, although, under the policy terms, the insured was required to pay the first $500 of any settlement.

Appellee’s motion for summary judgment was directed solely to appellant’s petition and was not supported by affidavits, depositions or other summary judgment evidence. Accordingly, for the purposes of the motion, the factual allegations of the petition are admitted as true. Garza v. Perez, 443 S.W.2d 855 (Tex.Civ.App.—Corpus Christi 1969, no writ); 4 McDonald, Texas Civil Practice, Section 17.26.8(i) (1971).

Appellant alleged that appellee was negligent in its investigation of the accident. Specifically, it was alleged that ap-pellee did not secure an accurate copy of the Bexar County Sheriff’s report of the accident until after the settlement had been consummated with the two occupants of the third party vehicle. These allegations were followed with this sentence: “Plaintiff would show that these and other acts constitute negligent investigation and a subsequent bad faith settlement, all to the detriment of Plaintiff.” There were no exceptions to this general allegation that there were “other acts” constituting bad faith. This general allegation of bad faith on the part of appellee bars a take-nothing summary judgment on the pleadings.

The judgment of the trial court is reversed, and the cause remanded.


author: PHILLIPS, Chief Justice.

text:
    Luis GUERRA, Appellant, v. Victoria (Guerra) DeLUNA, Appellee.
    No. 12304.
    Court of Civil Appeals of Texas, Austin.
    July 16, 1975.
    M. N. Garcia, Austin, for appellant.
    John P. Jones, Domestic Relations Division, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellee, Victoria (Guerra) DeLuna, filed suit against appellant, Luis Guerra, in the county court of Racine County, Wisconsin, averring that she and appellant were husband and wife, and that appellant had failed to support their four minor children. Pursuant to the applicable provision of the Wisconsin Uniform Reciprocal Enforcement of Support Act, the judge of the Wisconsin court certified appellee’s petition to the appropriate officials in Travis County, the county of appellant’s residence. Upon trial to the district court of Travis County, judgment was entered ordering appellant to pay $40.00 each week for the support and maintenance of the minor children until the youngest child obtained the age of eighteen years. It is from this judgment that appellant has perfected his appeal to this Court. We reverse the judgment of the trial court and render judgment that appellee take nothing by her suit.

The appellee made no effort to prove that she had ever been married to appellant. The basis for her suit was that appellant had fathered the children, and that by virtue of Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973) appellant had an obligation to support those children.

Appellant brings two points of error, namely, no evidence and insufficient evidence points relating to the error of the trial court in entering judgment for appel-lee grounded upon the unstated premise that appellant is the natural father of her children. We sustain the no evidence point and reverse and render judgment as heretofore indicated.

Appellee was not present at the trial. Her attorney called appellant as an adverse witness. He denied ever having lived with appellee. The only other evidence adduced at the trial was a plea in abatement filed by appellant in a prior proceeding. In that pleading appellant stated that he was a married man “at all times during the dates Plaintiff alleges she was either living with or supposedly married to Defendant Luis Guerra; that Plaintiff in this cause knew that the Defendant was married to Josefina Guerra at all times she cohabited with this Defendant [appellant].” (Emphasis added)

There was no evidence of any dates during which appellee claims that she cohabited with the appellant; however, the four children for whom she seeks support from appellant were born in 1957,1959,1960, and 1962.

In deciding a “no evidence” point, we must view the evidence in its most favorable light in support of the findings of the vital fact, considering only the evidence or the inferences which support the finding and rejecting the evidence and the inferences which are contrary to the finding.

In viewing appellant’s admission of cohabitation (which we hold admissible as an exception to the hearsay rule under Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.1963)), and in viewing the definition of the word “cohabit” in the light most favorable to appel-lee, there is still no evidence to support the judgment that appellant cohabited with ap-pellee during the years the children were born, 1957 through 1962. So, there is no evidence of a vital fact necessary to establish parenthood.

The judgment of the trial court is reversed and judgment herein rendered that appellee take nothing by her suit.

Reversed and rendered.

      . Sobel v. Jenkins, 477 S.W.2d 863 (Tex. 1972); Commercial Standard Insurance Co. v. Allred, 413 S.W.2d 910 (Tex.1967).


author: PHILLIPS, Justice.

text:
    Rupert DUFF, Appellant, v. The AUSTIN NATIONAL BANK, Independent Executor of the Estate of J. Warren Jackson, Deceased, Appellee.
    No. 12307.
    Court of Civil Appeals of Texas, Austin.
    July 16, 1975.

      Richard D. Woods, II, Nicholas & Barrera, San Antonio, for appellant.
    John C. Miller, Austin, John Carl Strom-berger, San Antonio, for appellee.
   PHILLIPS, Justice.

This is a plea of privilege case wherein appellant has perfected his appeal to this Court from an order of the district court in Travis County overruling his plea of privilege to have his suit transferred to Bexar County. We reverse the judgment of the trial court and order the case transferred to Bexar County.

We sustain appellant’s point that the trial court erred in its conclusions of law based upon the findings of fact that appellee proved a cause of action against the Texas Highway Department because there is no competent evidence to support the court’s finding that the appellant cannot respond in damages should the plaintiff be siiccessful in procuring a money judgment against him.

Appellant purchased a pickup truck from, one Jackson for $3,700, paid $500 down with the balance to be financed. Title to the. pickup was then assigned to appellant. Jackson then died and appellee qualified as independent executor of Jackson’s estate. Subsequently, appellant pledged the vehicle as security on a loan with the Frost National Bank of San Antonio and a new application for certificate of title showing the bank as first lien holder was filed.

Thereafter, appellee filed suit against appellant on behalf of the Jackson estate for the purchase money or the return of the vehicle. Appellee also joined the Texas Highway Department in the suit and asked the court to issue a temporary restraining order and, subsequently, a temporary injunction, against the Highway Department restraining it from issuing a new certificate of title showing the Frost National Bank’s lien.

Appellee prevailed in the trial court under subdivision 4 of Article 1995, Vernon’s Civil Statutes, which provides, in part, that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.

The venue facte which must be proved under this subdivision are: (1) one defendant resides in the county of suit; (2) the party asserting his privilege is a proper party to the suit against the resident defendant; and (3) the plaintiff has a bona fide claim against the resident defendant.

Appellee pleaded that unless the Texas Highway Department is restrained from issuing a corrected certificate of title to the vehicle in question, it would suffer immediate and irreparable injury since appellant is insolvent and under indictment for a serious crime. Appellee further alleged an inadequate remedy at law since appellant “is not now and would not be, at the termination of this suit, the owner of property, real or personal, sufficient to satisfy any judgment which plaintiff [ap-pellee] might obtain against Duff [appellant].” No other allegations were pleaded which would constitute irreparable injury or inadequate remedy at law.

Appellant testified that he had $5,000 in a lockbox in the Frost National Bank and cattle worth $10,000 in south Texas. At the time appellee rested its case, there was no evidence whatsoever to dispute appellant’s testimony or no other evidence of his insolvency or inability to respond in damages should a money judgment be entered against him.

Consequently, appellee failed to prove a bona fide claim against the resident defendant, Texas Highway Department, and has failed to bring his suit within the provisions of Sec. 4 of Article 1995, V.C.S.

The judgment of the trial court is hereby reversed and the cause is remanded with instructions that the case be transferred to a district court in Bexar County, Texas.

Reversed and remanded with instructions.

      . Hoover v. Barker, 476 S.W.2d 126 (Tex.Civ.App.1972, writ dism’d); Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (Tex.1936); McDonald, Texas Civil Practice, Venue, § 4.10.2 (Rev.Ed. 1965).


author: COLEMAN, Chief Justice.

text:
    C. E. DUKE’S WRECKER SERVICE, INC., et al., Appellants, v. Barbara OAKLEY et vir., Appellees.
    No. 16486.
    Court of Civil Appeals of Texas, First District.
    July 17, 1975.
    Rehearing Denied Aug. 14, 1975.

      Alvin Laser, John P. Venzke, Houston (Fulbright & Jaworski, Houston, of counsel), for appellants.

      Kronzer, Abraham & Watkins, Robert E. Ballard, Houston, for appellees.
   COLEMAN, Chief Justice.

This is an appeal from a judgment awarded the plaintiffs in a suit for the personal injuries suffered in an automobile collision. The judgment was entered on the verdict of a jury.

Appellants complain of the action of the trial court in admitting certain testimony and in overruling a motion for mistrial based on claimed injection of insurance into the case. They also claim that the evidence is insufficient to support certain items, of damage found by the jury.

The first point of error complains of the action of the trial court in overruling the defendants’ objection to the following question put to the plaintiff, Mrs. Oakley, by her counsel:

“O. K. Mrs. Oakley, I want to ask you: At this time, since the time of the collision up through December 10, 1971, and even on up until the day this trial started, have you been willing to be examined by anyone that Mr. Young (counsel for defendants) might choose in the form of a doctor to examine you to determine the nature of your injury?”

The objection was overruled and the question was answered “Yes.” Subsequently the plaintiffs introduced into evidence a written interrogatory and the answer thereto addressed to defendants reading:

. . Do you desire to have our client examined by a doctor of your choice? . . . ”

The answer, “Not at this time,” was admitted over the objection of the counsel for the defendants. In both instances counsel for the defendants objected on the ground that permitting the question and answer would constitute a violation of Rule 167a(e) of the Texas Rules of Civil Procedure.

The rule referred to above reads:

“If no examination is sought either by agreement or under the provisions of this rule, the party whose' mental or physical condition is in controversy shall not comment to the court or jury on his willingness to submit to an examination, on the right of any other party to request an examination or move for an order, or on the failure of such other party to do so.”

In paragraphs (a) and (b) of Rule 167a, supra, the trial court is authorized to require a party to submit to a physical or mental examination by a physician on motion for good cause shown, and, if requested by the party against whom the order is made, the party causing the examination to be made is required to deliver a copy of the written report of the examining physician to such party. After the delivery of such report the party causing the examination shall be entitled to demand a like report of any examination previously or thereafter made of the same condition. These provisions requiring exchange of medical reports are applicable also to examinations made by agreement of the parties. It is clear that under these sections of Rule 167a it was intended that the procedure for securing a medical examination of a party must be initiated by one other than the party to be examined.

In a commentary, Sales, Discovery under the Texas Rules of Civil Procedure, 37 Tex. Bar Journal 39, 43-44 (1974), the commentator states that the provisions of Rule 167a are new to Texas practice and are patterned, in substantial measure, on the Federal Rules. He states that absent other compelling considerations, the moving party is entitled to an examination by a physician of his own choosing, although this is not an absolute right and falls within the ambit of judicial discretion. Mr. Sales comments further:

“. . . This forecloses the common practice of forcing the defendant to request a medical examination in order to forestall comment to the jury that the plaintiff has always been ready and willing to submit to a medical examination if there was any dispute about his physical condition.”

It appears that the primary purpose of this rule was to provide a procedure by which a party whose physical condition is in dispute and is a material issue in a case can be required to submit to a physical examination by another party to the suit.

Paragraph (c) of Rule 167a, supra, must be construed in a like manner. We do not think the intention of the Supreme Court in promulgating this rule was to allow a party whose physical or mental condition is in question to require another party to the suit to have him examined by a physician on the penalty of opening his failure to do so to comment before the jury by merely offering to enter into an agreement to submit to a physical examination.

We are in accord with the commentary found in 1 W. Jordan, Modern Texas Discovery, Section 813, at 536-37 (1974), reading:

“Subdivision (c) provides that the party whose physical or mental condition is in controversy may not mention at the trial the failure of his adversary to move for an examination under Rule 167a, his right to so move, or his (the injured party’s) willingness to submit to an examination. Apparently the philosophy motivating this provision is that the opportunity for an examination, offered by Rule 167a, is a privilege that may or may not be exercised, and that no penalty should attach to a party’s failure, for whatever reason, to take advantage of the opportunity.”

The failure of the trial court to sustain the objections made to the testimony of Mrs. Oakley and to the admission on the part of the defendants was error. We must, therefore, consider whether or not such error requires a reversal of this case. Appellants contend that the provision of Rule 434, Texas Rules of Civil Procedure, is not applicable in this instance. Rule 434 requires this court to determine whether or not an error of the trial court is one which is reasonably calculated to and probably did cause the rendition of an improper judgment before ordering a reversal of a cause. Appellants contend that this is a mandatory rule and has the same force and effect of a statute. They argue that the matter is controlled by the recent opinion of the Supreme Court of Texas in Exxon Corporation v. Sue Brecheen, opinion delivered July 7, 1975, Tex., 526 S.W.2d 519, wherein the Court stated:

“. . . The Legislature has decreed in clear and explicit terms that evidence of the actual ceremonial remarriage of a surviving spouse is admissible in the statutorily authorized wrongful death action. The legislative determination forecloses judicial inquiry into the effect upon the fact finder of evidence that the surviving spouse has ceremonially remarried.”

Thus it appears that the Supreme Court has held that Rule 434 is inapplicable in a situation where the legislature has enacted a mandatory rule of procedure. If there is a failure to comply with a mandatory procedural rule enacted by the legislature, the error requires reversal. Appellants assert that the Texas Rules of Civil Procedure have the same force and effect as statutes. See, Missouri-Pacific Railroad Co. v. Cross, 501 S.W.2d 868 (Tex.1973); Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (Tex.1959). Appellants, therefore, conclude that the harmless error rule must also be inapplicable where there has been a violation of a mandatory rule of civil procedure as in this case.

It has long been established that where a rule of procedure established pursuant to the power vested in the Supreme Court conflicts with a legislative enactment, the rule must yield. Few v. Charter Oak Fire Insurance Co., 463 S.W.2d 424 (Tex.1971). Rule 167a stands on no higher plane than Rule 434. Rule 233, Texas Rules of Civil Procedure, provides that each party to a civil suit tried in district court shall be entitled to six peremptory challenges. However, the Supreme Court has held that the harmless error rule undoubtedly applies where a party is denied' the number of peremptory challenges to which he is entitled. Tamburello v. Welch, 392 S.W.2d 114, 117 (Tex.1965). In Tamburello the Supreme Court reaffirmed the rule announced in Texas Employers Ins. Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, that an action or occurrence may be so highly prejudicial to the fairness of a trial that the burden of going forward with proof is met, prima facie at least, by simply showing the improper act and nothing more. The Court also stated that the burden of the complaining party is met by showing that the trial which resulted in a judgment against him was materially unfair. See also, Bostwick v. Bucklin, 144 Tex. 375, 190 S.W.2d 818 (1945). Long prior to the adoption of Rule 434 the Supreme Court of Texas said:

“But the rules of procedure in the courts should be so framed as to secure substantial justice, and any oversight of the court or of counsel, which, within certain limitations, is not calculated to operate to the prejudice of the parties, and has not so operated, should be disregarded.” Silliman v. Gano, 90 Tex. 637, 39 S.W. 559, 561, 40 S.W. 391.

This rule was quoted with approval in Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314 (1939). A case should not be reversed merely as a penalty for the violation of a procedural rule even though the violation be flagrant and unprovoked. Loughry v. Hodges, 215 S.W.2d 669, 675 (Tex.Civ.App.—Ft. Worth 1948, writ ref’d n. r. e.). The purpose of the Act investing full rule making power in the Supreme Court of Texas was to enable the Supreme Court to promulgate rules that would avoid unnecessary delay and great and unnecessary expense to litigants and to the State, in the trial of cases and unnecessary reversals and new trials upon merely technical procedural grounds with consequent further delay and expense. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 340 S.W.2d 548 (Tex.Civ.App.—El Paso, 1960, writ ref’d n. r. e.).

We conclude, therefore, that Rule 434 is applicable in a case where a trial court has failed to comply with a procedural rule adopted by the Supreme Court of Texas, even though such rule is couched in mandatory language.

In this case the only medical testimony was that of a chiropractor, who was the brother of the plaintiff, Charles Oakley. The defendants elected not to seek a physical examination of the plaintiff, Barbara Oakley, and presented no witness to testify concerning her physical condition. Prior to trial the plaintiffs communicated to the defendants their willingness to submit to a physical examination. The defendants presented a motion in limine asking the trial judge to rule that testimony not be admitted to the effect that Barbara Oakley had agreed to submit to a physical examination. The plaintiffs’ assessment of the importance of this testimony was illustrated by this quotation from their brief:

“Had the trial court not admitted evidence of Plaintiff’s willingness to be examined and evidence of the tender of an examination the Plaintiff would have been placed in an unfair and unjust position with the triers of the facts. For example, the Plaintiff was faced with the proposition of going to trial upon the testimony of the treating doctor, who is a member of her family, and risking the attendant insinuations and innuendoes or she could have changed doctors. Had this occurred, undoubtedly able counsel for Defendants would have been in a position to comment about ‘changing doctors’ or ‘why change doctors if her brother-in-law had found any injury.’ While these might have been permissible inferences, they would have undoubtedly had a tremendous impact on the Jury, adverse to the Plaintiff.”

The testimony was introduced for the purpose of forestalling an anticipated attack on the credibility of the treating doctor and of adding weight to his testimony. Undoubtedly the plaintiffs desired to leave the impression with the jury that had defendants felt that the result of a physical examination of Mrs. Oakley by a physician of the defendants’ choice would have been helpful to them in the trial of the case they would have secured such an examination. This was the argument made to the jury by plaintiffs’ attorney. He said:

“. . . Dr. Oakley is her brother-in-law and you have heard him testify and you have heard him saying it’s going to get worse. And, ladies and gentlemen, I submit to you, they don’t dispute that one ounce because if they did, don’t you know they would have got. their own doctor, any doctor in this county or Montgomery County, Liberty County or anywhere they wanted to go to examine her if they disputed it. And we would have seen it, but they know they can’t dispute it because it is right ... If I take something of yours and I dispute the value, surely I should bring someone to say what it’s worth. And he hasn’t done it. And he never will do it because he knows he is wrong and he wants you to help him and he hasn’t shown you a good reason why he should . . .”

This argument obviously was based on testimony that Mrs. Oakley was willing to be examined by a doctor chosen by the defendants. The argument in question is a clear violation of Rule 167a(c), Texas Rules of Civil Procedure, as a comment on the failure of the opposite party to request an examinaion or move for an order requiring the plaintiff to submit to such an examination. The argument was not objected to and no point complaining of it is presented here. It is cited for the purpose of demonstrating the harm resulting to the defendants from the order of the trial court admitting the testimony to which objection was properly made, and to demonstrate the unfairness of the trial.

The question for determination is whether the admission of such testimony in violation of the rule rendered the trial materially unfair. We conclude that it did. The appellants were entitled to prepare their case for trial on the assumption that the trial court would not permit introduction of such evidence. They were not required to anticipate that the trial court would fail to follow a mandatory rule of procedure. Had they anticipated such a course of action the manner in which they prepared for trial might well have been different.

At the time of the collision Mrs. Barbara Oakley was driving a 1968 model Plymouth 2-door sedan. She was struck from the rear by a 1962 Mack Diesel Wrecker which weighed 16,590 pounds empty. The investigating officer found the vehicles 130 feet and 125 feet, respectively, from the point of impact. The trunk lid on the Plymouth was badly bent and knocked loose. After the collision Barbara Oakley could not stand up very well because her legs were shaking. Her neck began to tingle while she was going home, and it had started hurting before she got home. She called Dr. Oakley and after talking with him lay down and placed a small pillow under her neck. She was hurting pretty badly by that time. The next day Dr. Oakley applied heat and massage and adjustment to her neck. She went to see him every day for two or three weeks after the wreck and has continued to see him regularly since. For the first two or three weeks after the collision her neck was extremely sore and she had bad headaches. After three weeks her condition improved but she was still limited in what she could do. She was not employed outside of her home at that time. At the time of the trial she testified that if she missed any adjustments her neck would start getting relatively stiff. She develops headaches and gets very nervous and grouchy with her children. Pain interfered with her ability to do her normal chores. At the time of the trial Mrs. Oakley was 28 years old. The collision occurred November 27, 1971. During the Christmas season subsequent to the collision she had difficulty doing her shopping. She was limited in her actions. She had to be careful in what she did shortly after the collision and had to be cautious in driving. The injuries affected her life at home.

Dr. Oakley testified that he had treated Mrs. Oakley approximately ninety times. X-rays revealed a thinning of one disc in her neck. The damaged disc is permanent. The accident caused the- disc to thin. X-rays show slippage of the joints in the neck. There is abnormal movement above the thinned disc. Films taken the week of the trial reveal additional bony overgrowth. The overgrowths of bone will cause inflammation of the joint with resulting pains. This condition would be aggravated by activities putting Mrs. Oakley in a strain or causing her fatigue. The type of work which Mrs. Oakley does would be calculated to fatigue her and make the joint worse. Plaintiff’s neck has reached maximum recovery. It is not as good as before the accident. If Mrs. Oakley continues to work long hours she will need increased treatment. Her physical impairment resulting from the collision has affected her capacity to work. Her tolerance for work is less now than before the injury.

Mr. Oakley testified that the injuries have definitely affected his wife. She gets bad headaches and is not the same around people as she used to be. It is hard for her to be friendly. Even when she watches television she can’t get comfortable with her neck if it stays it one position very long. When she plays with her children she moves her neck and head around which causes additional headaches.

Mrs. Oakley testified that she was able to do her household duties although with difficulty because of pain. Mrs. Oakley did not testify as to any specific task which she was unable to perform. She did not testify that she requires assistance in doing her household chores. At the time of the accident Mrs. Oakley had not worked outside the home for several years. About one year following the accident she and her husband began the operation of a hardware store. At the time of the trial she testified that she worked from about 8 o’clock or 8:30 until 6 o’clock six or seven days a week. She testified that during the six months preceding the trial the condition of her neck had remained on an even keel. There is no testimony that Mrs. Oakley was required to take medication for her pain. Dr. Oakley testified that she was not having pain to the extent that he felt medication was necessary. There is.no testimony concerning the wage which Mrs. Oakley earned in her employment prior to the accident; no testimony as to the value of her services to the business which she and her husband operate; no testimony as to the wages of a person similarly engaged in similar occupations or any other type of work which Mrs. Oakley might reasonably be found qualified to perform.

The jury found that as a result of the collision in question Barbara Oakley and her husband, Charles Oakley, would be reasonably compensated for the physical pain and mental anguish which Mrs. Oakley has suffered in the past by the sum of $3,000.00; for the physical pain and mental anguish which she will suffer in the future by the sum of $6,000.00; for the loss of capacity to work in the past by the sum of -0- dollars; for the loss of capacity to perform services in the past by the sum of $1500.00; for the loss of her capacity to work which in reasonable probability will be sustained in the future by the sum of $10,000.00; and for the loss of her capacity to perform services which, in reasonable probability, will be sustained in the future by the sum of $4,500.00. Appellants contend that the jury’s answers to that portion of the issue relating to loss of capacity to perform services in the past, loss of capacity to work which will be sustained in the future, and loss of capacity to perform services which will be sustained in the future are not supported by the evidence. Points relating to the legal insufficiency of the evidence and to the factual insufficiency of the evidence to support these answers are properly preserved.

A woman’s right to recover compensation for her decreased capacity to care for and administer to the needs of herself and her family “is not limited nor necessarily measured by the standard of value of the pecuniary return of wage or profit; but such value, not being capable of ascertainment under the ordinary rule, is to be assessed by a jury in the sound discretion of its members and in the light of their experience in their everyday affairs.” Dallas Railway & Terminal Co. v. Sutherland, 27 S.W.2d 830 (Tex.Civ.App.—El Paso, 1930, writ dism’d). This right is not limited by an existing necessity for such labor, nor necessarily measured by the amount thereof customarily performed at or immediately prior to her injuries. Texas & Pacific Railway Co. v. Perkins, 284 S.W. 683 (Tex.Civ.App.—Waco, 1926, writ dism’d); City of Ft. Worth v. Weisler, 212 S.W. 280 (Tex.Civ.App.—Ft. Worth, 1919, no writ hist.).

There is sufficient evidence in the record to support the answer made by the jury to Subdivisions d. and f. of. Special Issue 16 concerning the loss of capacity to perform services in the past and the loss of capacity to perform services which in all reasonable probability will be sustained in the future.

Paragraph e. of Special Issue 16 inquires of the “loss of her capacity to work” to be sustained in the future. Appellants have not objected to the form in which this element of damage was submitted, nor have they objected that it duplicates either in whole or in part Subdivision f. of Special Issue No. 16 inquiring as to capacity to perform services. The record reflects that the defendants objected to the submission of Subdivision e. of Special Issue No. 16 because it did not include the question of earning capacity but merely inquired as to the loss of her capacity to work in the future. It appears that the issue was worded deliberately to inquire as to the loss of capacity to work for the reason that there is no evidence as to wages or earnings on the part of Mrs. Oakley. While in his final argument one of the attorneys for the plaintiffs referred to the fact that the law allows a plaintiff to recover for loss of earning capacity, the point was not emphasized. The jury did not follow the attorney’s recommendations as to the dollar amounts which should be allowed for the various items of damage. In some instances they allowed more than was asked for, in others they allowed less, and in one instance nothing.

The Supreme Court of Texas carefully considered the question of the quantum and the type of evidence necessary to support a jury’s finding on the question of lost earning capacity in McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710 (1943). There the court said:

“. . . In a personal injury suit the amount which the plaintiff might have earned in the future is always uncertain, and must be left largely to the sound judgment and discretion of the jury. However, the verdict must be based on something more than mere conjecture. It must be an intelligent judgment, based upon such facts as are available. Even where the injury is of such a serious and permanent nature that loss of earning capacity is the necessary result, proof is required to show the extent and amount of the damages ... No general rule can be laid down, except that each case must be judged upon its peculiar facts, and the damages proved with that degree of certainty of which the case is susceptible . . . ”

A good discussion of this question is also found in Southwestern Freight Lines v. McConnell, 254 S.W.2d 422 (Tex.Civ.App.—El Paso, 1952, error ref’d).

In this instance, however, the jury was not confined to loss of earning capacity. The issue is loss of the ability to work. There is evidence of the nature and extent of the injury suffered by Mrs. Oakley and its effect on her ability to work. There is some evidence that she cannot do as much work as she could have before the injury and there is' some evidence that her condition may worsen in the future. The answer made to this inquiry is supported by sufficient evidence. We suggest, however, that on retrial of this cause the issue be framed to inquire as to the loss of earning capacity.

Appellants present a point of error asserting that the trial court improperly overruled defendants’ motion for new trial because plaintiffs “improperly injected insurance into the case” during jury argument. During his argument an attorney for plaintiffs stated:

. . I am concerned that someone on the jury will let bias or prejudice creep into his mind and someone will say, ‘well, look here, Mr. Bouie can’t stand all of this.’ And if you do, you make the biggest error you have made in a long time, if you consider anything outside the evidence, you see, because if you consider whether a person can or cannot pay, you are going outside the record and you are going outside the evidence.”

Further in his argument he stated:

“Now, the judge considers this important . . . No. 9 is of particular importance and re-emphasizes what I say in deciding this case, emphasizing deciding on the evidence and not speculating about . Well, what it maybe . I wonder. Don’t worry about the judgment, who will pay it, how it will be paid or whether it will ever be paid. That is Judge Cartwright’s job. All I say is don’t . don’t be cheap with a human being. Don’t get to speculating about can it be paid. Don’t worry about it.”

After the arguments were concluded and the jury retired, the defendants made a motion for mistrial based upon the allegedly improper argument. Defendants further assert that had they objected during argument itself, the material would unnecessarily have been emphasized.

The rule in Texas is clear that the injection of insurance into a case when the insurance company is not a named party is error. Dennis v. Hulse, 362 S.W.2d 308 (Tex.1962); Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558 (Tex.1949). Cases may be cited that the plaintiff need not specifically mention insurance but that error occurs if the plaintiff’s argument clearly gives the inference of the presence of insurance. Ulmer v. Mackey, 242 S.W.2d 679 (Tex.Civ.App.—Ft. Worth 1951, writ ref’d n. r. e.); Griffith v. Casteel, 313 S.W.2d 149 (Tex.Civ.App.—Houston, 1958, writ ref’d n. r. e.); Hurley v. McMillan, 268 S.W.2d 229 (Tex.Civ.App.—Galveston, 1954, writ ref’d n. r. e.).

In Dennis v. Hulse, supra, the Supreme Court said:

“Respondent argues that the mention of insurance always requires a reversal of the case, because the error is regarded as incurable. We do not agree. When the courts say that an error is incurable, they usually mean that instructions or other curative measures that might be attempted by either the court or counsel will not eliminate the danger of prejudice. Under our practice an appellate court is not authorized to reverse merely because the record discloses some error that is reasonably calculated to cause a miscarriage of justice. The party appealing must also show that it probably did cause the rendition of an improper judgment in the case

Appellees explain and justify the contested portion of their jury argument as merely being a comment or explanation to the jury of the preliminary instructions given by the court to the jury prior to the presentation of the evidence, which are not preserved in the record. By Rule 226a II, Texas Rules of Civil Procedure, the Supreme Court has directed trial courts to give certain instructions in writing to the jury. No. 9 of these instructions reads:

“Do not consider, discuss, nor speculate whether or not any party is or is not protected in whole or in part by insurance of any kind.”

In Springer v. Baggs, 500 S.W.2d 541 (Tex.Civ.App.—Texarkana, 1973, writ ref’d n. r. e.), the court considered a comment made by counsel on instruction no. 9 and held:

“We do not believe this argument, considered as a whole, can fairly be said to have necessarily been calculated to cause the jury to consider that the defendant was protected by insurance, or that it reasonably had that effect. To hold otherwise on the facts here would be to hold, in effect, that little more than the mere reading of one of the court’s admonitory instructions would be improper.”

Appellees’ counsel argued to the jury that they should not let bias or prejudice affect their verdict and that they should not go outside the record. He referred to instruction no. 9 but did not quote it. We are not convinced from a consideration of the argument as a whole that the plaintiffs conveyed to the jury the information that the defendants probably were protected by insurance. The gist of the argument was that the jury should not be influenced by speculation as to whether the defendants were poor or rich or protected by insurance or not. While this argument approaches the outer limits of permissible argument, we believe that it did not overstep such limits.

Reversed and remanded.


author: McKAY, Justice.

text:
    Edwin ADLER et al., Appellants, v. CITY OF FARMERS BRANCH et al., Appellees.
    No. 835.
    Court of Civil Appeals of Texas, Tyler.
    July 17, 1975.
    Rehearing Denied Aug. 28, 1975.
    K. Mark Pistorius, Dallas, for appellants.

      Geary, Brice, Barron & Stahl, B. Kent Ford, Dallas, for appellee Warren Clark & Associates.
    Doug McCallon, City Atty., for City of Farmers Branch.
    Shank, Irwin, Conant, Williamson & Gre-velle, Steven C. Metzger, Dallas, for appel-lee Harry Branham.
   McKAY, Justice.

This is an action for damages and a permanent injunction alleging a nuisance. Appellants Adler and Moore are landowners in the City of Farmers Branch and brought this suit against appellees City of Farmers Branch and Warren Clark and Associates complaining that an unhealthy and unsightly condition exists caused by impeding the flow of water which resulted in stagnation in a drainage ditch which adjoins appellant’s property. Appellees Branham and Dayton are also property owners in the city whose property adjoins the creek and were brought into the suit as involuntary plaintiffs and alleged to be necessary parties. The trial court granted summary judgments for Branham and Dayton. Appellees City of Farmers Branch and Warren Clark and Associates filed pleas in bar asserting that the acts complained of as creating a cause of action for nuisance occurred more than four years preceding plaintiff-appellants’ filing of their original petition in December, 1973, and that the claim is therefore barred by the two-year statute of limitations as set forth in Art. 5526, V.A.T.C.S., or alternatively barred by the four-year statute, Art. 5529, V.A.T.C.S. The trial court thereafter granted orders of dismissal, based on a bar by limitations, for these appellees.

We affirm the judgment of the trial court.

Appellants reside in the Brookhaven addition to the City of Farmers Branch, an addition that was developed by Warren Clark and Associates in 1966. As part of the development, a 60-foot drainage and utility easement was created within a natural drainage creek with a deep pond being dredged by Warren Clark and Associates within the 60-foot easement. The area in dispute is located on the rear 30 feet of the lots of Moore, Adler, Branham and Dayton with Moore and Adler on one side of the pond and Branham and Dayton on the opposite side. After the creation in 1966 of the pond, Branham’s lot, then owned by a prior landowner, because of underlying fault slippage, began to move towards the drainage creek and pond. In April, 1969, Clark and Associates, in an effort to stop the slippage, filled with rocks, dirt and fill debris, a portion of the 60-foot drainage easement, including most of the rear 30 feet of the Branham lot and parts of the rear 30 feet of the lots of Adler and Moore. As a result of the April, 1969 action, the faulting was halted, the depth of the pond was lessened and the width of the easement was reduced. No obstruction of the drainage function or flow of the creek was then created. Appellants, however, recognizing at that time that there had been an immediate trespass upon their property, consulted an attorney. However, no action was taken until this suit was filed in December, 1973, four and one half years after the fill, and at a time when the filled area had become so cluttered with debris, trees, weeds and other plant growth so as to cause stagnation.

Appellants bring three points of error, two of which complain of the dismissal of the cause of action against City of Farmers Branch and Warren Clark and Associates based on the statute of limitations, while the third alleges error in the summary judgment granted for Branham and Dayton.

Regarding the limitation points, appellants contend that the nuisance was not created in April, 1969, that they were not damaged by the fill at that time, but that “As time passed, the earth and rock fill settled, causing the floor of the drainage ditch to fill until weeds and other wild plants began to grow on the bottom of the ditch, resulting in a decrease of the water flow to such an extent that the drainage ditch is now an unattractive eyesore, is dangerous to the residents in that it has become a breeding ground for insects, snakes and other household pests ⅜ ⅜ *.” As a result of the gradual deterioration, appellants allege the condition did not become a nuisance until the summer of 1972.

Appellees assert that the cause of action occurred at the time of the wrongful act and consequently limitation began to run at that time and not at the time of the ascertainment of damages, if any, citing Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36 (1888).

In the Houston Water-Works case, the Supreme Court announced two rules governing limitations in tort actions: ■

“ * * * When an act is in itself lawful as to the person who bases an action on injuries subsequently accruing from, and consequent upon, the act, it is held that the cause of action does not accrue until the injury is sustained * * *,”

and secondly that

“ * * * If, however, the act of which the injury was the natural sequence was a legal injury, — by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff’s right, —then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damages resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar.”

The Houston Water-Works case has been followed and quoted by many cases. In Linkenhoger v. American Fidelity and Casualty Company, Inc., 152 Tex. 534, 260 S.W.2d 884 (1953) the Supreme Court reaffirmed Houston Water-Works but went on to state that “ * * ⅜ before the act becomes wrongful there must be an invasion of the rights of the plaintiff.” Therefore, the test used in determining when limitations begins to run in an action in tort is whether the act causing the damage does or does not itself constitute a legal injury, i. e., an injury giving rise to a cause of action because it is an invasion of some right of plaintiff. See also 51 Am.Jur.2d, Limitation of Actions, Sec. 135; 54 C.J.S. Limitations of Actions § 168; Sims v. Southland Corp., 503 S.W.2d 660 (Tex.Civ.App.—Tyler, 1974, writ ref’d, n. r. e.).

Both appellants admit that they knew in April, 1969, that some of the fill invaded and trespassed upon their lots. Both appellants also admit in depositions that a nuisance was created and started contemporaneously with the filling in of the drainage area and that they in fact sought legal advice at the time to determine what could be done to halt the nuisance. As we view the situation, appellants’ rights had been invaded by appellees, if at all, by the fill made in April, 1969, and appellants could have maintained this suit at that time, even though the damage, if any, at that time may have been slight. Houston Water-Works v. Kennedy, supra; Baker v. City of Fort Worth, 146 Tex. 600, 210 S.W.2d 564 (1948); Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93, 98 (Tex.Civ.App.—Amarillo, 1971, writ ref’d, n. r. e.).

We therefore conclude that this suit, being filed four and one half years after the cause of action has occurred, is barred by either or both of Arts. 5526 and 5529, V.A. T.C.S. Appellants’ points of error two and three are therefore overruled.

In point of error one appellants allege that the Court erred in granting a summary judgment in favor of appellees Branham and Moore. In the summary judgment the court concluded appellees Branham and Moore were not necessary parties to this suit and exercised its discretion in removing them from the suit. Frazier v. Wynn, 492 S.W.2d 54 (Tex.Civ.App.—Amarillo, 1973, writ ref’d, n. r. e.); Sonnier v. Texas Emp. Ins. Ass’n, 417 S.W.2d 433 (Tex.Civ.App.—Houston, 1967, no writ). In light of our foregoing decision that the cause of action herein concerned is barred by limitations, we find it unnecessary and not material to our decision to determine the status of involuntary plaintiffs Branham and Moore.

Finding no reversible error, we affirm the judgment of the trial court.

Judgment affirmed.


author: DUNAGAN, Justice.

text:
    The HOMERIGHT COMPANY, Appellant, v. EXCHANGE WAREHOUSES, INC., Appellee.
    No. 842.
    Court of Civil Appeals of Texas, Tyler.
    July 17, 1975.
    Rehearing Denied August 7, 1975.

      Chitwood, Riley & Snyder, Inc. (A Professional Corp.), Paul J. Chitwood, Dallas, for appellant.
    Creel, Atwood & Spinuzzi, L. E. Creel, III, Dallas, for appellee.
   DUNAGAN, Justice.

This is an appeal from an order of dismissal. Plaintiff-appellant, the Homeright Company, sued appellee, Exchange Warehouses, Inc., for breach of a bailment contract alleging that appellee, at the time of the termination of the contract failed to redeliver to appellant or account for certain merchandise previously delivered to appel-lee.

Appellant in its original petition in this cause alleged therein that appellee made a written offer to serve it in the storage and handling of various items of merchandise belonging to appellant. Exhibit “A” to appellant’s original and first amended petitions is incorporated in the petition as the written offer by appellee for the services set out therein, and the charges and conditions. Appellant then alleged that during the period of November 1, 1969, up to September 26,1970, it had delivered to appellee the merchandise described in paragraph 2 of its original petition. Appellant described such merchandise by physical description, to-wit: SIDE-BY-SIDE REFRIGERATORS, ICE MAKERS, UPRIGHT REFRIGERATORS, TOP MOUNT REFRIGERATORS, COMPACT REFRIGERATORS, RADARANGES, and AIR CONDITIONERS, including in the description the model numbers of same and the cost per unit. Appellant alleged that during that same period of time, appellee, at the instance and order of appellant, made shipments to its customers, again describing such merchandise shipped by physical description and quantities of each, and the model numbers. Appellant further alleged delivery to appel-lee of a small number of items which were returned goods, again physically describing such items and giving quantity and model numbers. Appellant also alleged that it had paid to appellee charges in accordance with the offer (Exhibit “A”) which it had accepted.

By the allegations as contained in paragraph 3 of the original petition (also paragraph 3 of the first amended original petition), appellant alleged that it and appellee jointly made a physical count and/or inventory of appellant’s merchandise in the possession of appellee on the 26th day of September, 1970, and that the count showed appellee to be in possession of physically described merchandise, the quantities of such items and the model numbers thereof. Appellant further alleged that appellee failed to account to it for all of the merchandise previously delivered into the possession of appellee. These allegations described the missing merchandise physically, the number of each item missing and the model numbers.

The trial court, on July 2, 1974, sustained appellee’s special exceptions to appellant’s original petition in the instant case and granted appellant leave to file amended pleadings until 10:00 o’clock A.M. September 9, 1974. Appellant timely filed its first amended original petition on September 9, 1974.

In its first amended original petition, appellant alleged generally (1) a written offer from appellee to receive and handle for appellant certain described appliances, for specific charges and with certain conditions and limitations, (2) that the offer was accepted and that within a certain time span, a specific number of appliances were received by appellee for the account of appellant, (3) that during that same time span and at the instance of appellant, appellee removed from storage and shipped a specific number of the appliances to appellant’s customers, (4) that at the end of that time span, appellant and appellee jointly made a physical inventory of the appliances still in the hands of appellee, (5) that the physical inventory showed that appellee had a specific number of appliances on hand, (6) that as a result of the physical inventory, appel-lee could not account for and, at the time of the suit, had not accounted for a specific number of the appliances, to appellant’s damage in the amount of $14,079.00.

Appellee also specially excepted to the allegations of appellant’s first amended original petition, claiming insufficiency in the pleadings because (1) the appliances were not described by serial number, (2) there were no factual allegations sufficiently detailing the time that the appellee allegedly took such merchandise into its possession, or proof of delivery of such merchandise to appellee, or condition of such merchandise. Appellee maintained that it would be unable to properly prepare its defense until such facts were pleaded.

We think it would be helpful to first state the chronology of events which we think are pertinent to a proper disposition of this appeal.

(1) Appellant filed its original petition on October 12, 1971, Cause No. 71-10766, in the 68th District Court of Dallas County.

(2) On November 19, 1971, appellee filed its first amended answer with special exceptions.

(3) On April 12, 1972, appellee filed its motion for partial summary judgment.

(4) On April 13, 1972, a pre-trial hearing was held and order was entered on July 27, 1972, sustaining appellee’s special exceptions and requiring appellant to re-plead.

(5) On June 13, 1972, a hearing was had on appellee’s motion for partial summary judgment. The court sustained said motion, finding no genuine issue of any material fact regarding the limited liability, if any, of appellee to appellant, and limited the liability, if any, to the warehouse receipts issued by appellee to appellant.

(6) The case was set for trial on the remaining issues on October 9, 1972.

(7) On October 9,1972, the appellant took a voluntary non-suit in Cause No. 71-10766 without a final and appealable judgment being entered.

(8) On October 12, 1972, appellant filed original petition No. 73-7758 in the 160th District Court of Dallas County.

(9) On April 10, 1974, appellee filed its first amended answer, motion to transfer, motion for partial summary judgment and counterclaim.

(10) On June 7, 1974, defendant’s motion to transfer was granted, ordering said cause transferred to the 68th District Court.

(11) On July 1, 1974, a pre-trial hearing was had in the 68th District Court and the court sustained appellee’s special exceptions 1-7 and specified the appellant must amend in conformity with the court’s ruling no later than September 9, 1974.

(12) On September 9, 1974, the appellant filed its first amended original petition. It is the sufficiency of this pleading that is before this court for review.

(13) On October 22, 1974, the appellee filed its second amended original answer and motion to dismiss.

(14) On October 24, 1974, the court, on appellee’s motion, dismissed appellant’s cause of action with prejudice. It is from this order that the appellant has appealed.

The allegations of the petition must be accepted as true in testing the sufficiency of the pleadings on special exceptions thereto. Farias v. Besteiro, 453 S.W.2d 314 (Tex.Civ.App., Corpus Christi, 1970, writ ref., n. r. e.); City of Roma v. Starr County, 428 S.W.2d 851 (Tex.Civ.App., San Antonio, 1968, writ ref., n. r. e.). An order dismissing the case with prejudice is a proper order to be entered when special exceptions going to the existence of a cause of action are sustained, and plaintiff refuses to amend. City of Roma v. Starr County, supra. In such instances, the issue of dismissal goes to the discretion of the trial court and should not be disturbed in the absence of an abuse of discretion. Ware v. Crystal City Independent School District, 489 S.W.2d 190 (Tex.Civ.App., San Antonio, 1973, writ dism.).

In our opinion, appellant’s pleadings as contained in its first amended original petition are sufficient under Rules 45 and 47, Texas Rules of Civil Procedure, and the sustaining of appellee’s special exceptions to appellant’s first amended original petition and dismissal of its cause of action were abuses of discretion.

Rule 45 provides in part:

“Pleadings * * ⅝ shall * * * (e)onsist of a statement in plain and concise language of the plaintiff’s cause of action or the defendant’s grounds of defense. That an allegation be evidentiary or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole.”

Rule 47, T.R.C.P., provides in part:

“A pleading ⅞ ⅜ * shall contain (a) a short statement of the cause of action sufficient to give fair notice of the claim involved, and (b) a demand for judgment for the relief to which the party deems himself entitled.”

Next, appellee contends that the partial summary judgment granted it in October, 1972, in appellant’s first cause of action No. 71-10766, which was filed in the 68th District Court of Dallas County on October 12, 1971, is res judicata.

The trial court by the partial summary judgment decreed “ * * * that, as a matter of law, the liability of the Defendant (appellee), if any liability there be, is limited by the terms of the warehouse receipts issued by the Defendant to the Plaintiff (appellant); and that Defendant’s liability, if any liability there be, is limited to 20 cents per pound of the articles stored with the Defendant * * * ”. The court further ordered “ * * * that the damage issues to be considered at the trial on the merits of this cause shall be limited by the provisions contained in the Defendant’s warehouse receipts.”

Appellee argues that the doctrine of “res judicata” applies since the trial court granted its motion for partial summary judgment limiting liability if there was any, and therefore, appellee is barred from litigating the issue again. Then, appellee contends that since this issue is barred, “(t)here are no factual disputes of a material nature as to what the parties did, but only as to what the contract was.”

The partial summary judgment was interlocutory. Since appellant non-suited its cause of action in Cause No. 71-10766 (its first cause of action against appellee) without a severance of the other issues between the parties, the partial summary judgment never became final and was non-appealable. Wilcox v. St. Mary’s University, 501 S.W.2d 875 (Tex.1973); Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789 (Tex.1965). A partial summary judgment on issue of liability alone, as in the ease at bar, is interlocutory and not appealable. Rule 166-A, T.R.C.P. United States Automobile Assoc. v. Eberly, 399 S.W.2d 886 (Tex.Civ.App., Corpus Christi, 1966, n. w. h.), and cases therein cited. This rule provides, among other things that “ * * * (a) summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.” The rule clearly states that such order is interlocutory, and is not appealable. United States Automobile Assoc, v. Eberly, supra.

The partial summary judgment did not dispose of the damage issues. The judgment provides for the trial of such issues on the trial of the merits of the cause of action. No order of severance was entered. Since the judgment did not dispose of all issues in the cause, it was not a final judgment. Coastal States Crude Gathering Co. v. Strauch, 410 S.W.2d 945 (Tex.Civ.App., Corpus Christi, 1967, n. w. h.); Minchen v. Murrah, 285 S.W.2d 372 (Tex.Civ.App., El Paso, 1955, writ ref.).

The general rule is that an interlocutory judgment would not support a plea of res judicata but that there must be a final judgment, i. e., one that settles finally the issues on the merits. McGrath v. San Antonio and Farmers Dairies, 398 S.W.2d 618 (Tex.Civ.App., El Paso, 1965, writ ref., n. r. e.); Brown v. Singer Sewing Machine Co., 352 S.W.2d 306 (Tex.Civ.App., Austin, 1961, n. w. h.); Dallas General Drivers, Warehousemen, & Helpers Local Union v. Vilbig Bros., Inc., 225 S.W.2d 617 (Tex.Civ.App., Dallas, 1949, writ ref., n. r. e.); Cooper v. Cooper, 168 S.W.2d 686 (Tex.Civ.App., Galveston, 1943, n. w. h.); Stafford v. Powell, 148 S.W.2d 965 (Tex.Civ.App., Eastland, 1941, n. w. h.); Old v. Clark, 271 S.W. 183 (Tex.Civ.App., Dallas, 1925, n. w. h.); Lewis v. Davis, 236 S.W. 105 (Tex.Civ.App., Austin, 1921, n. w. h.); 34 T.J.2d, sec. 468, page 516.

The general rule has been strictly adhered to in this state with an exception in the instances of an interlocutory judgment in plea of privilege cases. An interlocutory judgment sustaining or overruling a plea of privilege is an exception to the rule that an interlocutory judgment will not support a plea of res judicata, and such a judgment is res judicata of the right to transfer. Dallas General Drivers, Warehousemen, & Helpers Local Union v. Vilbig Bros., Inc., supra.

Even in plea of privilege cases, it has been held that it is not strictly accurate to speak in terms of res judicata in instances where a plaintiff takes a non-suit before judgment, for the doctrine normally applies only when there has been a final judgment on the merits and the matter concluded. Southwestern Investment Company v. Gibson, 372 S.W.2d 754 (Tex.Civ.App., Ft. Worth, 1963, n. w. h.).

An interlocutory judgment in a suit that terminates in voluntary discontinuance not amounting to retraxit does not operate as res judicata in a subsequent suit. Lammon v. City of San Antonio, 223 S.W.2d 533 (Tex.Civ.App., San Antonio, 1949, writ ref., n. r. e.); 34 T.J.2d, sec. 486, page 540.

For all the reasons above stated, the judgment is reversed and the cause is remanded to the trial court for a trial on its merits.