author: WHITHAM, Justice.

text:
    AMERICAN PETROFINA, INC., Appellant, v. DORCHESTER GAS CORPORATION, Appellee.
    No. 05-84-00187-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 4, 1985.
    Rehearing Denied Feb. 22, 1985.

      Nichols, Merriman, Patterson & Allison, P.C., Longview, for appellant.
    Daniel Tsevat, Dallas, for appellee.
    Before STEPHENS, WHITHAM and DE-VANY, JJ.
   WHITHAM, Justice.

The principal issues are whether appellant, American Petrofina, Inc., is entitled to contractual indemnity from appellee, Dor-chester Gas Corporation, for the amount paid by Fina in settlement of a personal injury claim and whether the amount paid was reasonable. In a bench trial, the trial court rendered a take nothing judgment against Fina. We conclude (a) that Fina is entitled to indemnity for the amount paid in settlement of the claim, (b) that the trial court erred in concluding that the amount paid was unreasonable, and (c) that Fina is entitled to indemnity for its attorney’s fees and expenses. Accordingly, we reverse and render.

Fina sold a refinery to Dorchester. The sales agreement contained the following indemnity clause:

[Dorchester] shall indemnify, defend and hold harmless [Fina] against all claims, actions, demands, losses or liabilities arising from the use or the operation of the Properties or arising under or relating to any lease, contract, license or other agreement assigned to and assumed by [Dorchester] and accruing from and after the Effective Date.

The effective date was October 81, 1977. On July 21, 1978, Don Rhea, an employee of Dorchester, was injured by hot oil escaping from a double piston steam pump and an ensuing fire while working on the steam pump in the course and scope of his employment at the refinery. On July 21, 1978, Fina had no ownership interest in the refinery nor was it engaged in the use or operation of the refinery. As of July 21, 1978, Dorchester was a subscriber under the Texas Workers’ Compensation Act, TEX.REV.CIV.STAT.ANN. arts. 8306-8309i; (Vernon 1967 & Vernon Supp.1984). Dorchester’s workers’ compensation carrier paid Rhea $23,042.21 for total and permanent disability, $9,373.45 for loss of time, and $73,306.58 for medical expenses. On February 27, 1980, Rhea commenced an action against Fina and others in the United States District Court for the Eastern District of Texas, Marshall Division. Rhea’s complaint alleged that Fina was liable under the following theories:

1. Strict Products Liability: Fina sold Dorchester, Rhea’s employer, a defective and unreasonably dangerous steam pump;
2. Negligence: The sale of the defective steam pump constituted negligence.
3. Breach of Contract and Breach of Express and Implied Warranties: Rhea was a third party beneficiary of the sales agreement, and Fina’s breach of contract and breach of express and implied warranties were each a proximate cause of his injuries; and
4. Gross Negligence: Fina’s conduct constituted gross negligence.

Rhea’s complaint alleged actual and punitive damages in the sum of six million dollars. On February 24, 1982, a motion for leave to file third party complaint was filed by Fina in the Rhea action. On March 10, 1982, the court denied Fina’s motion to join Dorchester in the Rhea action. Jury selection in Rhea’s action commenced March 15, 1982. Trial on the merits began March 17,1982. Fina was the only remaining defendant. During jury deliberations a settlement was reached whereby Rhea and the compensation carrier received three hundred thousand dollars in settlement of all claims arising out of the occurrence in question. The settlement took place on March 18, 1982, and was approved by the court.

On August 13, 1981, Rhea and the compensation carrier offered to settle for $350,000.00. On March 1, 1982, Fina’s attorney telephoned Dorchester’s general counsel and advised him of this offer of settlement and requested that Dorchester participate in the settlement. Dorchester’s general counsel declined to do so on the basis that the indemnity clause in the sales agreement did not apply because Dorches-ter was a subscriber to the Workers’ Compensation Act. Therefore, the present case centers on article 8306, section 3(d) which provides:

If an action for damages on account of injury to or death of an employee of a subscriber is brought by such employee, or by the representatives or beneficiaries of such deceased employee, or by the association for the joint use and benefit of itself and such employee or such representatives or beneficiaries, against a person other than the subscriber, as provided in Section 6a, Article 8307, Revised Civil Statutes of Texas, 1925, and if such action results in a judgment against such other person, or results in a settlement by such other person, the subscriber, his agent, servant or employee, shall have no liability to reimburse or hold such other person harmless on such judgment or settlement, nor shall the subscriber, his agent, servant or employee, have any tort or contract liability for damages to such other person because of such judgment or settlement, in the absence of a written agreement expressly assuming such liability, executed by the subscriber prior to such injury or death.

Dorchester’s Liability for Contractual Indemnity.

Pertinent to the inquiry in the present case is the provision in article 8306, section 3(d) that “the subscriber ... shall have no liability to reimburse or hold ... harmless on such judgment or settlement ... in the absence of a written agreement expressly assuming such liability, executed by the subscriber prior to such injury or death.” In its conclusion of law number eight, the trial court concluded that “[t]he indemnification provision of the Agreement is insufficient to cover the claims made by [Rhea] against Fina.” In its first point of error, Fina contends that the trial court’s conclusion of law number eight is contrary to Texas law. Thus, we reach the question whether the indemnity clause in the agreement was “a written agreement expressly assuming [Fina’s] liability, executed by the subscriber [Dorchester] prior to [Rhea’s] injury ...” within the meaning of that language used in article 8306, section 3(d). It is undisputed that the indemnity clause was in writing and executed by Dorchester prior to Rhea’s injury. Thus, we must decide whether Dorchester expressly assumed Fina’s liability. In deciding this question we must determine whether Dor-chester’s obligation of indemnity is expressed in clear and unequivocal terms.

In Eastman Kodak Co. v. Exxon Corp., 603 S.W.2d 208 (Tex.1980), the court identified a general rule as follows:

Over the last three decades, the trend of Texas case law has been progressively stricter in applying the rule that a contract of indemnity will not protect an indemnitee against his own negligence unless the obligation of the indemnitor to do so is expressed in clear and unequivocal terms.

603 S.W.2d at 211 (citations omitted) (emphasis in original). The court in Eastman Kodak then discussed whether the “clear and unequivocal” rule applies “when the contract provides for indemnity against injuries or damages caused by defects in certain premises or resulting from the maintenance or operation of a specified instrumentality.” The court in Eastman Kodak concluded that “agreements in which one person clearly undertakes to indemnify another against liability for injuries or damages caused by defects in certain premises or resulting from the maintenance or operation of a specified instrumentality” was not a true exception to the general rule:

But in reality is only an application of the general rule, for when indemnity is clearly expressed with reference to specific premises or instrumentalities the in-demnitor necessarily knows that he is assuming full responsibility for losses in connection with those particular premises or instrumentalities, regardless of whose negligence may cause the losses.

603 S.W.2d at 212 (emphasis in original). At oral argument, Dorchester conceded that, at the time Rhea was injured, Dor-chester was using the steam pump in the operation of the refinery. We conclude, therefore, that Rhea’s claim arose “from the use or the operation of the Properties” as that phrase is used in the indemnity clause. Moreover, Dorchester admits that the refinery is a “specific instrumentality” as that term is used in Eastman Kodak because Dorchester tells us in its brief that the sales agreement “does refer to the Refinery which is a ‘specified instrumentality,’ but Dorchester’s assumption of the obligation to indemnify Fina only arises at the time of Dorchester’s use or operation of the Refinery.” (emphasis added). Indeed, Rhea suffered his injuries almost nine months after Fina’s operation of the “particular premises or instrumentalities” (the refinery) had ceased and at a time when the refinery was solely the “particular premises or [instrumentality]” of Dor-chester. We conclude, therefore, that Dor-chester knew that it was “assuming full responsibility for losses in connection with those particular premises or instrumentalities (the refinery), regardless of whose negligence may cause the loss.” 603 S.W.2d at 212.

It follows, and we so hold, that the sales agreement clearly and unequivocally provides for indemnity against injuries suffered by Rhea at the time Dorchester was using the steam pump in the operation of the refinery so as to constitute “a written agreement expressly assuming [Fina’s] liability” within the meaning of article 8306, section 3(d). We conclude, therefore, that the trial court erred in concluding as a matter of law that “[t]he indemnification provision of the Agreement is insufficient to cover the claims made by [Rhea] against Fina.” Accordingly, we find no merit in Dorchester’s contention that, as a subscriber to the Workers’ Compensation Act, it had no liability under the indemnity clause for Rhea’s injury in the course and scope of his employment. Consequently, we must sustain Fina’s first point.

The Reasonableness of the Settlement.

In its second point of error, Fina challenges the trial court’s conclusion of law number seven that “Fina’s settlement with [Rhea] was unreasonable.” Fina argues that the evidence conclusively establishes that Fina’s settlement in the sum of $300,000 was reasonable. We treat Fina’s second point as a “legally insufficient” point. A “legally insufficient” point is a “no evidence” point presenting a question of law. In deciding that question, the appellate court must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. If a “no evidence” point is sustained and the proper procedural steps have been taken, the finding under attack may be disregarded entirely and judgment rendered for the appellant unless the interests of justice require another trial. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

At trial, Fina established by the testimony of its attorney that the $300,000.00 settlement was reasonable. Dorchester offered no evidence that the $300,000.00 settlement was not a reasonable settlement. Dorchester offered no evidence of what amount would have been a reasonable settlement. Fina also established by the testimony of its attorney that it had incurred reasonable and necessary attorney’s fees and expenses in the defense of Rhea’s action in the amount of $19,489.73. Dorches-ter offered no evidence that the $19,489.73 was not a reasonable amount of attorney’s fees and expenses. Dorchester offered no evidence of what amount would have been a reasonable amount of attorney’s fees and expenses.

Dorchester does, however, advance two arguments in support of the trial court’s conclusion that the settlement was unreasonable. First, Dorchester argues that Fina should have declined to settle and pursued in the trial court and in the United States Court of Appeals for the Fifth Circuit Fina’s contention that Fina “was not a ‘seller’ as defined by the Restatement (Second) of Torts.” Dorchester does not tell us in its brief why Fina was not a “seller” or advance any argument or authorities to support its contention that Fina should have fought to the bitter end over Fina’s position that it “was not a ‘seller’ as defined by the Restatement (Second) of Torts.” Consequently, we conclude that Dorchester’s first argument does not constitute or identify any evidence of probative value to support the trial court’s conclusion that “Fina’s settlement with the [Rheas] was unreasonable.”

Dorchester’s second argument in support of the trial court’s conclusion is based on Fina’s attorney-witness’ description of the United States District Court for the Eastern District of Texas at Marshall as “the most liberal forum in the State of Texas” and the fact that Fina failed to seek dismissal of Rhea’s action in that “most liberal forum” because of lack of jurisdiction. Although a Delaware corporation, Fina stipulated in the present case that its principal place of business at the time the Rhea action was filed was in Dallas, Texas. Thus, Dorchester points to lack of diversity jurisdiction because Fina’s principal place of business was in Dallas, Texas. 28 U.S. C.A. § 1332(c) (1966). Dorchester insists, therefore, that “Fina should have filed a motion to dismiss [Rhea’s] complaint for want of subject matter jurisdiction and the case should have been tried in state court where a lower verdict (and a lower settlement) would have been more likely.” Dor-chester grounds its position on the proposition expressed in C. WRIGHT, LAW OF THE FEDERAL COURTS, § 7 at 17-18 (3rd Ed.1976):

“But what if the parties fail to raise any jurisdictional question? The rule is that the parties cannot confer on a federal court jurisdiction that has not been vested in that court by the Constitution and Congress. The parties cannot waive lack of jurisdiction either by express consent, or by conduct, nor even by estoppel. The court, whether trial or appellate, is obligated to notice want of jurisdiction on its own motion....”

Dorchester’s argument must have been persuasive to the trial court for in its finding of fact number seven it found that “[i]t is common knowledge among experienced attorney litigators in Texas that the U.S. District Court for the Eastern District of Texas-Marshall Division is more liberal than state civil district courts sitting in Dallas County, Texas in awards rendered on plaintiffs verdicts.” Nevertheless, we decline to enter the thicket of forum shopping or to determine which of all the forums in Texas is the most liberal — by any standard of measurement. Rather, we look to the nature of the relief sought by Fina.

Fina asserts that the present case is one for contractual indemnity under the terms and provisions of the sales agreement. Dorchester contends that the present case is one “seeking indemnity for a judgment entered against Fina in federal court based upon an indemnification provision of an agreement between Fina and Dorchester.” We conclude that Dorchester misreads the record in Rhea’s action. In the Rhea action, there was no judgment as such for which Fina could be indemnified. Rather, there was only an order of dismissal with prejudice upon advice to the court that the case had been settled. Consequently, we agree with Fina that the present case is one seeking contractual indemnity rather than one seeking indemnity for a judgment entered against Fina. Therefore, we conclude that Dorchester’s second argument does not constitute or identify any evidence of probative value to support the trial court’s conclusion that “Fina’s settlement with the [Rheas] was unreasonable.”

Accordingly, we must sustain Fina’s “no evidence” second point and reverse and render. Dorchester does not separately challenge Fina’s right to recover reasonable attorney’s fees and expenses under the indemnity clause. Therefore, we do not reach the question whether Fina may recover its reasonable attorney’s fees and expenses incurred in a forum without jurisdiction. Consequently, we decline to affirm the trial court's judgment insofar as it denies Fina’s recovery for reasonable attorney’s fees and expenses.

Notice and Estoppel.

In addition to other arguments advanced in support of the trial court’s judgment, Dorchester asserts that Fina failed to give proper notice of the Rhea action on a timely basis and that Fina is estopped by its silence in failing to timely inform Dor-chester of the Rhea action. The sales agreement does not require that Fina give Dorchester prior notice. Nevertheless, Dorchester argues that Fina had a common law duty to do so. For the purposes of this opinion we assume, but do not decide, that Fina had a common law duty to give Dor-chester proper notice of the Rhea action on a timely basis. We decline, however, to deny Fina recovery under the indemnity clause because of Fina’s failure to perform its assumed common law duty to give Dor-chester proper notice on a timely basis. We do so because before settlement of the Rhea claim was made, Dorchester had advised Fina that Dorchester had no liability under the indemnity clause. Therefore, notice would have been of no consequence to Dorchester. For the same reason we decline to deny Fina recovery under the indemnity clause on the ground of estoppel. We conclude that Fina’s failure to speak, when it was under an assumed duty to speak, would have been of no consequence to Dorchester since before settlement of the Rhea claim Dorchester had advised Fina that Dorchester had no liability under the indemnity clause.

We reverse the trial court’s judgment insofar as it denies Fina recovery against Dorchester for reasonable and necessary attorney’s fees and expenses in the sum of $19,489.73. We reverse the trial court’s judgment insofar as it denies Fina recovery against Dorchester for the sum of $300,-000.00 paid in settlement of Rhea’s claim. We render judgment in favor of Fina and against Dorchester in the sum of $319,-489.73 together with interest thereon at the rate of ten percent (10%) per annum from the 17th day of November, 1983, the date of the trial court’s judgment. All costs in the trial court and in this court are taxed against Dorchester.

      . Computation of judgment rate by the consumer credit commissioner for month of November, 1983, 8 Tex.Reg. 4770 (1983), pursuant to TEX. REV.CIV.STAT. art. 5069-1.05, § 2 (Vernon Supp.1984). The contents of the Texas Register are to be judicially noticed and constitute prima facie evidence of the text of the documents published in the Register and of the fact that they are in effect on and after the date of the notation. TEX.REV.CIV.STAT.ANN. art. 6252-13a, § 4(c) (Vernon Supp.1982-1983).


source: Caselaw Access Project

author: KEITH, Justice.

license: Public Domain

text:
    GROUP PURCHASES, INC., Appellant, v. LANCE INVESTMENTS, INC., Appellee.
    No. 05-84-00066-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 8, 1985.
    Rehearing Denied Feb. 26, 1985.

      Emil Lippe, Jr., Edward A. Galloway, Dallas, for appellant.
    Morris C. Gore, Dilts & Law, Dallas, for appellee.
    Before AKIN, STEWART and KEITH  JJ.

      . The Honorable Quentin Keith, Justice, Ninth Supreme Judicial District, retired, sitting by as- • signment.

   KEITH, Justice.

Lance Investments, Inc. brought suit to set aside an execution sale and cancel a sheriff’s deed on certain residential property owned by Lance prior to the sale. The property was sold at the execution sale to satisfy a default judgment entered against Lance in favor of Dallas Power & Light Company. Group Purchases, Inc. bought the property at the execution sale and received a sheriff’s deed conveying the property. Both Dallas Power & Light Company and Group were named as defendants in the suit to set aside the sale. The trial court rendered a summary judgment for Lance setting aside the sheriff’s deed and declaring it null and void on the basis of the court’s findings that (1) since Group and Dallas Power & Light Company failed to present any rebutting evidence to the affidavit of Lance’s expert as to the value of the property, it was established as a matter of law that the property sold for a grossly inadequate consideration; (2) a defect existed in the published notice of the execution sale; and (3) no evidence was presented by Dallas Power & Light Co. and Group creating a fact issue as to a lack of causal connection between the defect in the notice and the gross inadequacy of consideration.

On appeal, Group contends that there are genuine issues of material fact (1) as to whether or not the price obtained at the execution sale was grossly inadequate and (2) as to whether or not the irregularity, if any, in the execution sale was reasonably calculated to cause and actually produced the alleged grossly inadequate price. We agree that material issues of fact exist as to whether the price was grossly inadequate. Accordingly, we reverse the trial court’s judgment and remand the cause for trial.

GROSSLY INADEQUATE PRICE

To set aside an execution sale, a plaintiff must show an irregularity calculated to affect the sale and an inadequate price. Prudential Corp. v. Bazaman, 512 S.W.2d 85, 91 (Tex.Civ.App.—Corpus Christi 1974, no writ); Brimberry v. First State Bank of Avinger, 500 S.W.2d 675, 676-77 (Tex.Civ.App.—Texarkana 1973, writ ref’d n.r.e.); Rio Delta Land Company v. Johnson, 475 S.W.2d 346, 348 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n.r.e.). According to the findings recited in the judgment, the trial court relied solely on the affidavit of Frank Carter, Jr., a real estate broker, in finding as a matter of law that the property sold for a grossly inadequate price. Mr. Carter’s affidavit stated that in his opinion the value of the property was in excess of $300,000 at a sale with adequate time to expose the property to the market and in excess of $250,000 at a distress sale. Assuming, without deciding, that Mr. Carter’s affidavit was not successfully controverted by the affidavit of W.L. Keetch, Jr., we do not agree that the affidavit established as a matter of law that the property sold for a grossly inadequate price. For a summary judgment to properly be based on the uncontroverted testimonial evidence of an expert witness, among other requirements, the witness must testify “as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts.” TEX.R. CIV.P. 166-A(c). The value of land is not subject matter that conforms with that description. The trier of fact is not required to accept the opinions of experts as to the value of land. Other evidence may be considered, including the trier of fact’s own experience and matters of common knowledge. Simmonds v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332, 334 (1936); Murfee v. Phillips Petroleum Co., 492 S.W.2d 667, 676 (Tex.Civ.App.—El Paso 1973, writ ref'd n.r.e.); Trinity River Authority v. McMurrey, 439 S.W.2d 887, 890 (Tex.Civ.App.—Beaumont 1969, no writ); Lee v. Briscoe Irrigation Co., 350 S.W.2d 894, 896 (Tex.Civ.App.—Houston 1961, writ ref’d n.r.e.). The general rule in summary judgment proceedings is that the uncontro-verted opinion testimony of a witness does not establish any material fact as a matter of law. Simmonds, 91 S.W.2d at 334. The affidavit of Frank Carter, Jr. does not fit within the exception to the rule recognized in TEX.R.CIV.P. 166-A(c). Accordingly, we sustain Group’s first point of error and hold that there was a genuine issue of material fact as to whether the price obtained at the execution sale was grossly inadequate. Since Lance was required to show a grossly inadequate price to have the sale set aside, the summary judgment must be reversed and the cause remanded for trial.

DISPOSITION OF MOTIONS

Although our ruling on Lance’s motion to dismiss appeal and Group’s motion for reversal and rendition of judgment is evident from our reversal and remand for trial, the rationale for the ruling merits explanation.

As the basis of its Motion to Dismiss Appeal, Lance states that Group failed to file a supersedeas bond, and that during the pendency of the appeal Lance conveyed the property involved in the suit to James Crow, Sr., the incorporator and former shareholder of Lance. As a result of such conveyance, Lance contends that this cause is moot. We disagree with this contention. The failure of Group to file a supersedeas bond under the provisions of Tex.R.Civ.P. 364(c) (Vernon 1967) would have no effect on the conveyance of the property by Lance to a third party. A supersedeas bond does not suspend or stay a judgment, but is a method of suspending execution of a judgment before it becomes final and while an appeal is pending. Renger v. Jeffrey, 143 Tex. 73, 182 S.W.2d 701, 702 (1944); Thompson v. Haney, 191 S.W.2d 491, 494 (Tex.Civ.App.—Amarillo 1945, no writ). The judgment in this cause merely set aside the sheriff’s deed to Group. No execution was to issue for the enforcement of the judgment, and a private conveyance by Lance to James Crow, Sr. is not execution of the judgment.

We conclude that the notice of lis pendens filed regarding this case governs the effect of the conveyance during the pendency of the appeal. When ownership of land is claimed by both parties in a lawsuit, “if a lis pendens has been filed, either of the litigants may freely convey to third parties.” Neel v. Fuller, 557 S.W.2d 73, 76 (Tex.1977). However, if the grantor ultimately loses the lawsuit, the third party grantee is left only with any claims for damages he may have against his grantor. Neel, 557 S.W.2d at 76. The policy behind the lis pendens doctrine is that “a court which has acquired jurisdiction of a cause of action is entitled to proceed to the final exercise of that jurisdiction without the interference of anyone with the subject matter or res before the court.” Texas Water Rights Commission v. Crow Iron Works, 582 S.W.2d 768, 771 (Tex.1979); Rosborough v. Cook, 108 Tex. 364, 194 S.W. 131, 132 (1917). The effect of the lis pendens continues through the appeal of the judgment. See Hartel v. Dishman, 135 Tex. 600, 145 S.W.2d 865, 869 (1940); Rosborough, 194 S.W. at 132; Moore v. Moore, 67 Tex. 293, 3 S.W. 284, 286 (1887). If it did not, the ability of a party to render moot an action to determine ownership of land by transferring the property to a third party would merely be delayed, not eliminated. Accordingly, the conveyance of the property to James Crow, Sr. transferred only whatever rights Lance is finally determined to have in the property after final judgment on remand and any appeal therefrom. Lance’s motion to dismiss appeal is denied.

In its motion, Group requests that this court reverse the judgment entered by the trial court and render judgment in favor of Group. The basis of this request is Group’s contention that Lance has made a judicial admission and admission under oath in its motion to dismiss appeal and its affidavit in support thereof. That alleged admission is that Lance “claims no right, title or interest in or to said Property.” We reject this contention. A review of the motion and affidavit reveals that the actual statement is that “[t]he corporation no longer claims any right, title or interest or claim in or to said property” (emphasis added). In context, it is clear that the statement means as a result of the sale by Lance to James Crow, Sr., Lance no longer asserts a claim to the property. Group’s motion for reversal and rendition of judgment based on admissions is denied.

Reversed and remanded.

Costs of this appeal taxed against appel-lee.


author: WARREN, Justice.

text:
    FIRST STATE BANK OF BEDIAS, Appellant, v. Dorothy Louise BISHOP, Administratrix of the Estate of Thomas W. Bishop, Deceased, Appellee.
    No. 01-84-0492-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 10, 1985.
    Rehearing Denied Feb. 7, 1985.

      Michael J. Cenatiempo, Wyckoff, Russell, Frazier & Cenatiempo, James B. Wesley, Wesley & Wilson, Houston, for appellant.
    Glenn H. Johnson, Allan A. Cease, Johnson, Wurzer & Westmoreland, P.C., Houston, for appellee.
    Before DUGGAN, LEVY and WARREN, JJ.
   OPINION

ON MOTION FOR REHEARING

WARREN, Justice.

We withdraw our prior opinion and substitute the following:

This is an appeal from a summary judgment granted by the Probate Court Number One of Harris County, Texas.

The summary judgment granted appellee a bill of review on four prior probate court orders which had allowed appellant’s claims against the Estate of Thomas W. Bishop, deceased, for unpaid promissory notes executed by the deceased. In essence, the probate court held, in granting the summary judgment, that appellant’s claims were barred because it did not timely file its suit in a court of proper jurisdiction within 90 days after its claims had been rejected, as required by Texas Probate Code section 313. The court’s summary judgment recited that Probate Court Number One of Harris County, where the estate was pending, had exclusive jurisdiction of the suit to establish the claim. We reverse and remand.

Our primary question is whether the filing of a suit in a district court to establish claims against an estate being administered in a statutory probate court satisfies section 313 of the Texas Probate Code, which requires that:

When a claim or a part thereof has been rejected by the representative, the claimant shall institute suit thereon in the court of original probate jurisdiction in which the estate is pending or in any other court of proper jurisdiction within ninety days after such rejection, or the claim shall be barred.

Tex.Prob.Code Ann. sec. 313 (Vernon 1980). The underlying questions involve the jurisdiction of statutory probate courts and district courts on claims incident or appertaining to an estate.

During 1979 and 1980, Thomas W. Bishop executed four promissory notes payable to the order of the appellant bank in the aggregate amount of $75,000. On November 18, 1980, Thomas Bishop died without having paid the amount due under the notes. On December 23, 1980, Dorothy Louise Bishop, the surviving wife of Thomas Bishop, was appointed and qualified as the administratrix of Thomas Bishop’s estate in Probate Court Number One of Harris County, Texas. On August 17 and August 20,1981, appellant presented authenticated claims for the unpaid balance due under the promissory notes. The adminis-tratrix neither approved nor rejected the claims within 30 days, causing them to be rejected by operation of law, as provided in Texas Probate Code section 310.

On October 16,1981, within 90 days after rejection of the claims by operation of law, appellant filed suit on the notes in the District Court of Grimes County against Dorothy Bishop individually and as admin-istratrix of the estate. Appellee answered but never filed a plea in abatement to the venue or jurisdiction of the district court. On May 22, 1982, the district court, after a non-jury trial, entered judgment against the estate and appellee Dorothy Bishop, individually. The judgment was then timely transmitted to the probate court for certification. On June 25, 1982, the probate judge approved and classified each of the four claims.

On February 2, 1984, approximately 19 months after the claims had been approved by the probate court, appellee filed a bill of review, alleging that the district court judgment was void because the probate court had exclusive jurisdiction over the suit on the notes. The appellee further alleged that appellant’s claims were barred because appellant failed to file its claims in the probate court within 90 days after they had been rejected by the administratrix. Appellee prayed that the probate court’s previous order allowing the claims be set aside and that the appellant’s four claims be barred.

The probate court granted appellant’s motion for summary judgment, which judgment provided in pertinent part:

[T]he Court further finds that at the time of the filing of the suit to authenticate the four unsecured claims in the 278th District Court of Grimes County, Texas, and afterwards, this Court had exclusive jurisdiction, pursuant to TEX. PROB.CODE ANN. Sections 5(c), 5(d) and 5A(b), to consider the aforementioned four unsecured claims; the Court further finds that the four unsecured claims of Defendant, FIRST STATE BANK OF BEDIAS, are barred for Defendant’s failure to institute suit thereon in this Court within ninety (90) days after the rejection of said claims; the Court further finds that the suit filed by Defendant, FIRST STATE BANK OF BE-DIAS, in the 278th District Court of Grimes County, Texas, under Cause No. 23,793, was not a proper or effective institution of suit within ninety (90) days of rejection of the four unsecured claims of Defendant, FIRST STATE BANK OF BEDIAS, as required by TEX.PROB. CODE ANN. Section 313 and that Defendant, FIRST STATE BANK OF BE-DIAS, should be forever barred from bringing suit thereon against the Estate of Thomas W. Bishop, Deceased, in this Court or any other Court...

In its one point of error appellant urges that the trial court erred in granting the summary judgment on the bill of review because:

(1) the bill of review constituted a collateral attack on the valid district court judgment, and
(2) the summary judgment evidence raises a fact issue as to whether appellant is estopped from attacking the jurisdiction of the district court. .

Before 1973 the probate courts, with few exceptions, were relegated to the role of overseeing the affairs of an estate to insure that it was being administered in a fair and legal manner. In 1973, the Texas Constitution was amended to provide:

The District Court ... shall have the general jurisdiction of a probate court. It shall ... settle accounts of executors, transact all business appertaining to deceased persons ... including the settlement, partition and distribution of estates of deceased persons and to apprentice minors, as provided by law. In any proceeding involving the general jurisdiction of a probate court, including such specified proceedings, the district court shall also have all other jurisdiction conferred upon the district court by law. The legislature, however, shall have the power, by local or general law, Section 16 of Article V of this Constitution notwithstanding, to increase, diminish or eliminate the jurisdiction of either the district court or the county court in probate matters ....

Tex. Const, art. Y, sec. 8. Also in 1973, section 5 of the Texas Probate Code was amended to expand the powers of probate courts in areas previously reserved to district courts. Paragraph (d) of section 5 provides: “All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate.” Tex.Prob.Code Ann. sec. 5 (Vernon Supp. 1984).

In 1979, the legislature added section 5A to the Probate Code to better define “matters incident to an estate” and to direct where such matters should be heard. Part (b) of that section provides, in pertinent part:

(b) In proceedings in the statutory probate courts and district courts, the phrases “appertaining to estates” and “incident to an estate” in this Code include the probate of wills, the issuance of letters testamentary and of administration, and the determination of heirship, and also include, but are not limited to, all claims by or against an estate.... In situations where the jurisdiction of a statutory probate court is concurrent with that of a district court, any cause of action appertaining to estates or incident to an estate shall be brought in a statutory probate court rather than in the district court.

Tex.Prob.Code Ann. sec. 5A(b) (Vernon 1980) (Emphasis added).

Since the parties agree that the suit to establish notes as claims against the estate is “incident” or “appertaining to an estate,” we have no issue before us regarding that part of section 5A(b). Our question is whether the language contained in the last sentence of section 5A(b) ousts the district court of the power to hear such a suit, even if the parties expressly or implicitly agree to try the matter in that court.

A substantial number of cases analyzing the effect of section 5A(b) have held that when a probate proceeding is pending in a statutory probate court, all matters “incident to the estate” should thereafter be brought in the probate court.

In this regard, the Fourteenth Court of Appeals held in Pullen v. Swanson, 667 S.W.2d 359 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.), where the appellant had filed suit to establish claims against the estate on unpaid promissory notes:

Because this lawsuit was “incident to the estate” of J.F. Swanson and probate proceedings had been instituted in Statutory Probate Court Number 2 before this suit had been filed in the district court, the statutory probate court had subject matter jurisdiction over this cause of action.

Id. at 363. See also Piper Aircraft Corp. v. Yowell, 674 S.W.2d 447, 459 (Tex.App.— Fort Worth 1984, writ pending) (when proceedings regarding an estate are already pending in statutory probate court, a matter incident to an estate must be brought in the probate court rather than in the district court); Tarrant County Hospital District v. Jones, 664 S.W.2d 191, 196 (Tex.App.—Fort Worth 1984, no writ) (probate court proper forum for action incident to an estate where probate proceedings pending); Seay v. Hall, 663 S.W.2d 468, 472 (Tex.App.—Dallas 1983), aff'd in part and rev’d in part on other grounds, 677 S.W.2d 19 (Tex.1984); Adams v. Calloway, 662 S.W.2d 423, 427 (Tex.App.—Corpus Christi 1983, no writ) (where administration of an estate is pending, any claim which is incident to the estate shall be brought in statutory probate court); Bank of the Southwest, N.A. v. Stehle, 660 S.W.2d 572, 574 (Tex.App.—San Antonio 1983, writ ref’d n.r.e.) (reversal of district court judgment and dismissal of action where probate court proceeding previously filed); Boman v. Howell, 618 S.W.2d 913, 915 (Tex.Civ.App.—Fort Worth 1981, no writ) (district court had no jurisdiction to construe a will where proceedings were pending in the statutory probate court). It must be noted that in each of the above cases, except Tarrant County Hospital District v. Jones, the opinion showed that a plea to the trial court’s jurisdiction was filed. Also, in view of the Supreme Court’s holding in Seay v. Hall, the authority in some of the above cases must be questioned or discounted.

In interpreting the effect of section 5A(b), the Pullen court wrote:

The [last] sentence [in section 5A(b) ] is a statutory expression of a policy of judicial self-restraint that once the jurisdiction of the statutory probate court has attached and that jurisdiction is adequate to grant the requested relief, the District Court should refrain from exercising its concurrent jurisdiction.

667 S.W.2d at 364.

In Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974), a domestic relations case in which suits were filed in two courts of concurrent jurisdiction, Chief Justice Greenhill wrote for a unanimous court:

The general common law rule in Texas is that the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926), Ex parte Lillard, 159 Tex. 18, 314 S.W.2d 800 (1958). Any subsequent suit involving the same parties and the same controversy must be dismissed if a party to that suit calls the second court’s attention to the pendency of the prior suit by a plea in abatement. If the second court refuses to sustain a proper plea in abatement, or attempts to interfere with the prior action, this court has the power to act by mandamus or other appropriate writ to settle the conflict of jurisdictions. Cleveland v. Ward, supra; Wheeler v. Williams, 158 Tex. 383, 312 S.W.2d 221 (1958); Way & Way v. Coca-Cola Bottling Co., 119 Tex. 419, 29 S.W.2d 1067 (1930); Conn v. Campbell, 119 Tex. 82, 24 S.W.2d 813 (1930).

511 S.W.2d at 267.

Logic requires our holding that section 5A(b) only gives statutory probate courts dominant jurisdiction over claims “appertaining to or incident to an estate,” rather than exclusive jurisdiction, once probate proceedings have been filed in the probate court. The latter interpretation would repeal, by implication, that part of section 313 allowing suits on rejectéd claims to be filed in the court of original probate jurisdiction “or in any other court of proper jurisdiction.”

There is also a compelling practical reason why district courts should not be divested of jurisdiction over matters “incident to or appertaining to an estate” regarding pending probate proceedings. Neither lawyers nor courts have agreed on precisely what constitutes matters “incident to or appertaining to an estate.” In many cases, if the district courts lacked any jurisdiction to hear such cases, the diligent lawyer would be required to file suit in both courts pending a final determination of whether the cause of action was incident to an estate. Yet another problem would be where parties, acting in good faith but uncertain of the appropriate forum, could agree to try a suit in the district court, and the loser could cry “no jurisdiction” and seek to have the appellate courts determine whether the claim was “incident to or appertaining to an estate.” Such practices would only tarnish the image of the probate courts which have traditionally provided quick and fair relief to widows, orphans, and others in need of such assistance.

We sustain appellant’s point of error and hold that appellant’s suit was timely filed in the District Court of Grimes County under section 313 of the Texas Probate Code and that the probate court erred in granting appellee’s motion for summary judgment. When proceedings have commenced in a statutory probate court, the probate court has dominant jurisdiction over any subsequent suits incident or appertaining to an estate, and the district court or any other court of concurrent jurisdiction has servient jurisdiction. Thus, a judgment in a suit tried in a court of concurrent jurisdiction, without objection, is not void. Upon timely filing of a plea in abatement or other appropriate motion, however, the district court or any other court having concurrent jurisdiction with the probate court must immediately relinquish its jurisdiction to the statutory probate court. Pullen, 667 S.W.2d at 363-64. Only by this interpretation can we resolve the apparent conflicts between the various sections of the Probate Code implicating the jurisdiction of statutory probate courts and district courts.

We will not consider appellee’s contention that Texas Probate Code section 8(a) is applicable to our case because we do not consider our question to be one of venue. Also we decline to decide appellant’s contention regarding estoppel, as it is unnecessary to our disposition of this case.

Reversed and remanded.


author: GUITTARD, Chief Justice.

text:
    EPPLER, GUERIN & TURNER, INC., Appellant, v. Cyril David KASMIR and Kasmir, Willingham & Krage, Appellees.
    No. 05-84-00020-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 15, 1985.
    Rehearing Denied March 1, 1985.
    Duncan Boeckman, Golden, Potts, Boeck-man & Wilson, Beverly Brown, Golden, Potts, Boeckman & Wilson, Dallas, for appellant.
    Ben L. Krage, Dallas, for appellees.
    Before GUITTARD, C.J., and CARVER and SHUMPERT, JJ.

      . Justice Shumpert approved this opinion prior to the expiration of his term of office on Decern-ber 31, 1984. However, the opinion was not issued until January 15, 1985, because of the internal circulation requirements of this Court.

   GUITTARD, Chief Justice.

Eppler, Guerin and Turner, Inc., appeals from a summary judgment that it take nothing on its claim for appraisal fees against the appellees C.D. Kasmir, Esq., and Kasmir, Willingham & Krage, attorneys at law. We hold that the summary judgment evidence established as a matter of law defendants’ affirmative defense that they were only acting as agents for a disclosed principal. Therefore, we affirm.

Plaintiff, an investment banking firm, was hired by defendants to render an opinion on the value of certain securities that were the subject of a suit between defendants’ client Intercontinental Industries, Inc., and the Internal Revenue Service. It is undisputed that plaintiff knew at the time it was hired by defendants that defendants were attorneys representing Intercontinental ' Industries in the pending suit. Plaintiff prepared a letter agreement addressed to defendants outlining the details of its employment. This letter is styled “Re: Intercontinental Industries vs. The Internal Revenue Service.” In part, it provides: (1) that plaintiff shall render a valuation opinion on specified securities “to be received and ultimately received by Intercontinental Industries, Inc.,” and (2) that the billings for this opinion and for testimony in court “shall be rendered to your firm” (the defendants’ firm). In addition, this letter agreement contains the following acknowledgment by defendants:

Agreed and Accepted this
30th day of June 1982
KASMIR WILLINGHAM AND KRAGE
by /s/ Cyril David Kasmir

Plaintiff contends that this letter agreement establishes that defendants undertook personal liability for the payment of its professional fees and that the trial court, therefore, erred in granting the defendants’ motion for summary judgment and in denying its motion for summary judgment. We disagree.

Except in the case of negotiable instruments, the general rule- is that when an agent contracts for the benefit of a disclosed principal, the agent is not liable on the contracts he makes. Whataburger, Inc. v. Rutherford, 642 S.W.2d 30, 34 (Tex.App.—Dallas 1982, no writ); Wright Waterproofing Co. v. Applied Polymers of America, 602 S.W.2d 67, 69 (Tex.Civ.App.—Dallas), writ ref'd n.r.e. per curiam, 608 S.W.2d 164 (Tex.1980). Of course, the parties to a contract can alter this general rule by agreement so that the agent will be liable on the contract. The agent may bind himself to such a contract by expressly or impliedly agreeing either to substitute his own responsibility for that of his principal or to add his personal responsibility. American National Bank v. American Loan & Mortgage Co., 228 S.W. 169, 171 (Tex.Comm’n.App.1921, judgmt adopted); see also American Petrofina Co. of Texas v. Bryan, 519 S.W.2d 484, 487 (Tex.Civ.App.—El Paso 1975, no writ). Thus, it is clear that if an agent is liable on a contract he has made for the benefit of a disclosed principal, his liability is predicated upon his specific contractual obligation and not upon his agency relationship. American National Bank, 228 S.W. at 171.

Accordingly, we hold that when an attorney contracts with a third party for the benefit of a client for goods or services to be used in connection with the attorney’s representation of a particular client and the third party is aware of these facts, the attorney is not liable on the contract unless he either expressly or impliedly assumes some type of special liability. Neal v. Ardoin, 594 S.W.2d 145, 146 (Tex.Civ.App.—Houston [1st Dist.] 1980, no writ); Nagle v. Duncan, 570 S.W.2d 116, 117 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ dism’d); see also Annot., 15 A.L.R.3d 531, 536 (1967).

Plaintiff does not dispute these principles of law, but contends that the letter agreement establishes that the defendants “specially undertook” liability for the payment of these fees. First, plaintiff argues that defendants’ express or implied assumption of liability is established by the provision in the letter agreement that billings for the plaintiff’s services “shall be rendered” to the defendants. We do not interpret this provision as either an express or implied assumption of special liability by defendants. Attorneys routinely receive such billings for their clients. In this context such a provision means only that the attorney is designated as the agent of the corporate client to whom bills should be sent. Presumably, the attorney has a duty to examine them and, if he approves, transmit them to the proper officer of the corporation for payment.

Second, plaintiff argues that defendants’ express or implied assumption of liability is established by the letter agreement because it was signed by defendant Kasmir without disclosing an intent to sign only in a representative or agency capacity. In other words, plaintiff argues that the defendants are personally liable on the letter agreement because they did not place the word “agent” or “attorney” after their respective typed or manually signed names. In support of this argument, the plaintiff cites Seale v. Nichols, 505 S.W.2d 251 (Tex.1974), which states:

Texas law provides that in order for an agent to avoid liability for his signature on a contract, he must disclose his intent to sign as a representative to the other contracting party. Uncommunicated intent will not suffice.

505 S.W.2d at 255.

We do not regard Seale as controlling here because in Seale the agency relationship was not disclosed on the face of the contract or by extrinsic circumstances. The opinion shows that the only evidence of Seale’s agency was his affidavit stating his undisclosed subjective intent to sign the promissory note in question as agent for a corporate principal. Here the letter on its face establishes plaintiff’s knowledge that defendants were acting as counsel for a particular client in pending litigation. Seale does not require every contract signed by a lawyer for a disclosed client to contain explicit language negating his personal liability. Rather, such contracts are governed by the rule already stated that an agent who signs a contract for the benefit of a disclosed principal is not liable on the contract unless there is an express or implied agreement for specially imposing personal liability.

We hold that defendants have established their affirmative defense of agency. Plaintiff has failed to raise a disputed fact issue upon whether the defendants undertook a special obligation to assume liability for the payment of the plaintiff’s fees. Therefore, the trial court properly granted the defendants’ motion for summary judgment and denied the plaintiff’s motion for summary judgment.

Affirmed.


author: CANTU, Justice.

text:
    MALONE & HYDE, INC., Appellant, v. John HOBRECHT, et al., Appellees. John HOBRECHT, et al., Appellants, v. MALONE & HYDE, INC., Appellee.
    No. 04-83-00086-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 16, 1985.
    Rehearing Denied Feb. 26, 1985.

      Clem Lyons, Stephen Dittlinger, South-ers & Lyons, D. Hull Youngblood, Jr., San Antonio, for appellant.
    Richard Johnson, San Antonio, for appel-lees.
    Before CADENA, C.J., and CANTU and REEVES, JJ.
   OPINION

CANTU, Justice.

Separate appeals are taken from a judgment entered in a wrongful death and survivor’s action brought by the Estate of Roland A. Hobrecht, his wife and three adult children, against Malone & Hyde, Inc. (Malone), the owner of a Sommer’s Drug Store in San Antonio, for the alleged malpractice of its employee in misfilling a prescription for syringes.

Malone joined Dr. Bernard Pomerantz as a third party defendant alleging that the acts of Dr. Pomerantz in failing to properly instruct the Hobrechts in how to administer and verify a dosage of insulin required constituted malpractice. Malone further alleged that the Hobrechts were negligent in failing to adhere to the instructions of Dr. Pomerantz and that certain employees of Park North General Hospital were negligent in failing to properly instruct the Ho-brechts in the proper administration of insulin.

The plaintiffs (Hobrechts) did not join in the action against Dr. Pomerantz or against the hospital employees.

The jury answered seventeen special issues finding Malone exclusively at fault, exonerating the Hobrechts of contributory negligence and Dr. Pomerantz of primary negligence. No special issues were submitted with regard to the negligence of the Park North General Hospital employees and their alleged negligence passed out of the case.

The jury’s verdict included an award of $250,000 to Mrs. Hobrecht for pecuniary loss, $25,000 for loss of consortium before the death of her husband, Roland Hobrecht and $250,000 for loss of consortium which Mrs. Hobrecht would sustain after the death of her husband.

Also included in the jury verdict was an award of $50,000 to John Hobrecht, the adult son of the decedent as pecuniary loss, an award of $30,000 to Richard Barry Ho-brecht, another adult son of the decedent, as pecuniary loss and an award of $60,000 as pecuniary loss to Pamela Goodlett, the adult daughter of the decedent.

The jury further awarded the estate $250,000 for damages incurred by decedent individually for his conscious physical pain and mental anguish as well as $20,243 as reasonable medical expenses and $2,678.01 as reasonable funeral and burial expenses.

At a hearing on the Hobrechts’ motion to enter judgment on the verdict, the trial court disregarded the jury’s answer awarding Mrs. Hobrecht $250,000 as damages for the loss of consortium after death and entered judgment in the amount of $667,-921.49. The trial court, however, denied Malone’s prayer to limit the judgment to $500,000 plus reasonable medical expenses pursuant to TEX.REV.CIV.STAT.ANN. art. 4590i and further refused to suggest a remittitur. Malone appeals from the judgment entered and the Hobrechts prosecute a separate appeal solely on the trial court’s act in disregarding the jury’s answer to the special issue awarding Mrs. Hobrecht $250,000 for loss of consortium after the date of the decedent’s death.

The decedent, Roland Hobrecht, was a sixty-six year old advertising executive associated with the firm of Wyatt Advertising Company. At the time of his death, he had been married to his only wife, Antonia, for thirty-nine years. The Hobrechts had three children, Richard Barry, John and Pamela.

In August of 1980, the decedent was on a short vacation in Ruidoso, New Mexico, when he developed an infection inside his lip and was hospitalized in a Ruidoso hospital for a few days.

After his condition stabilized, the decedent and his wife returned to San Antonio where he was seen by Dr. Pomerantz, his treating physician for his long term bout with diabetes. On August 27, 1980, the decedent was admitted to the Park North General Hospital for aggravation of his diabetes. Although the decedent’s diabetes had previously been controlled by oral medication, Dr. Pomerantz decided to start him on injectable insulin. Dr. Pomerantz filled out a prescription for NPA insulin, insulin syringes, ⅝ X 26 gauge needle and for other medication.

In order to save time, Dr. Pomerantz telephoned the prescription to the pharmacist on duty at the Sommer’s Drug Store where the Hobrechts routinely filled prescriptions. The pharmacist on duty, however, filled the prescription with a non-insulin syringe.

These syringes were 25 gauge, ⅝ inch syringes with a total capacity of 3cc’s and do not have the “units” marked on the barrel for insulin. An insulin syringe has demarcations for “units” of insulin and usually has a maximum volume of lcc (100 units).

Decedent’s prescription directions required him to inject himself with twenty-five units of NPH insulin each day. As a result of the misfilling of the prescription, the decedent injected himself with approximately six times his prescribed dosage of insulin on two consecutive days, that is to say, he injected himself with 150 units of insulin each time. The decedent was readmitted to Park North General Hospital the day following the final injection and was subsequently transferred to Santa Rosa Medical Center where he died approximately thirty days later.

Malone brings forth eighteen points of error for review. Essentially they fall into seven categories. The first contention complains of the trial court’s entry of a judgment in excess of $500,000 plus reasonable medical expenses found by the jury and court costs.

The second alleges factual as well as legal insufficiency of evidence to support the jury finding of $250,000 as damages for physical pain and mental anguish suffered by the decedent for a period of thirty days.

The third contention alleges factual and legal insufficiency of evidence to support the jury’s finding of $250,000 in pecuniary loss by the decedent’s wife.

The fourth contention alleges factual and legal insufficiency of evidence to support the jury’s finding of damages for pecuniary loss suffered by each of decedent’s adult children.

The fifth contention alleges factual and legal insufficiency of evidence to support the jury’s finding of $25,000 as damages for loss of consortium suffered by decedent’s wife prior to the death of decedent.

The sixth contention alleges that the trial court erred in failing to suggest a remitti-tur.

The seventh and final contention alleges trial court error in failing to properly align the parties and to equalize the peremptory jury challenges.

Mrs. Hobrecht and her adult children in their separate appeal complain of the trial court’s action in disregarding the jury’s answer on the issue of loss of consortium following the death of decedent and in reducing the jury’s verdict by $250,000.

We address Malone’s contentions first although not in the order presented.

$250,000 as damages for physical pain and mental anguish suffered by decedent for a thirty-day period.

Malone’s points four and five categorized above as its second contention urge that the jury answer to Special Issue No. 15 awarding the sum of $250,000 as damages for physical pain and mental anguish suffered by the decedent during a thirty-day period is unsupported by evidence, by insufficient evidence and alternatively that the finding is against the great weight and preponderance of the evidence as to be manifestly unjust.

In determining a “no evidence” point, which is a question of law, we consider only that evidence, if any, and the reasonable inferences therefrom, which viewed in its most favorable light, supports the jury finding and we reject all evidence and inferences which are contrary to the finding. Garza v. Alviar, 395 S.W.2d 821, 826 (Tex.1965).

In determining an “insufficient evidence” point which is a question of fact, we consider and weigh all the evidence in the case to determine whether the evidence is factually insufficient to support a finding of a vital fact or whether the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust that the finding should be set aside and a new trial ordered. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 662 (1951).

In response to Special Issue No. 15, the jury found that $250,000 would fairly and reasonably compensate the decedent for his conscious pain and mental anguish suffered before his death. The compensation covered a period of thirty-two days beginning on September 8, 1980, the date of the first insulin overdose, and running through October 10, 1980, the day the deceased expired from what one witness described as “almost total organ failure.”

From the date of the first overdose until his death, the decedent’s condition worsened continuously. After being transferred to the Santa Rosa Medical Center from the Park North General Hospital, the decedent developed congestive heart failure, shortness of breath and water in his lungs. His appetite lapsed and his bladder lost its ability to void normally. He eventually developed acute tubular necrosis of the kidneys which eventually led to dialysis.

Although the blood sugar was restored to a level compatible with life, the injury caused by overdose of insulin damaged the kidneys to the point where they could no longer rid the body of toxic substances. This led to a buildup of digitalis and quini-dine levels in the blood which resulted in increased strain and stress on an already compromised heart.

Malone advances the untenable notion that the decedent suffered no physical pain and experienced no mental anguish during this period of rapid health deterioration because there is no evidence that he ever told anyone that he was experiencing pain or that he recognized his impending death.

Malone’s own recitation of the facts descriptive of decedent’s last thirty days of life can lead to but the undeniable conclusion that the decedent was suffering horribly from the insulin insult and that he remained in such a state of alertness as to fully appreciate the drain his illness was placing upon his organs and body as a whole.

We recite a chronology of the symptoms attributed to decedent as recognized by Malone. Following the initial overdose, decedent became tired, confused and had difficulty moving. His appetite then disappeared and he began to make gasping noises. He broke out in a sweat and his eyes began bugging out. These symptoms were repeated for an additional day. Decedent then experienced increased loss of appetite and shortness of breath. Confusion set in followed by disorientation, lethargy, sleepiness, slurred speech and loss of ability to speak.

We do not agree with Malone that the jury was unauthorized to find pain and suffering including mental anguish from the record before it. It is well established that conscious pain and suffering may be inferred from circumstantial evidence. Green v. Hale, 590 S.W.2d 231 (Tex.Civ.App.—Tyler 1979, no writ).

Malone would urge upon this court that a recovery may not be had unless the decedent knew and expressed to someone his knowledge of impending death. Such is not the law. Consciousness of approaching death is a proper element to be considered in evaluating mental suffering. Jenkins v. Hennigan, 298 S.W.2d 905, 911 (Tex.Civ.App.—Beaumont 1957, writ ref’d n.r.e.). It is not the sole element to be considered.

In 17 TEX.JUR.2d 312, Damages § 252, it is said:

It is not necessary that the existence of physical or mental suffering be proved by direct evidence; such suffering may be presumed in cases where it is the natural consequences of the injury of which the plaintiff complains. Where serious bodily injury has been inflicted, some degree of physical and mental suffering is the necessary result; and in such cases the jury are \_sic ] authorized, without the direct proof of such suffering, to consider the pain both of body and of mind in assessing the amount of damages.

Under all the facts adduced the jury was authorized to draw a reasonable inference of the pain and mental anguish experienced by decedent during the last month of his life. It became the duty of the jury, as a matter of discretion under a proper instruction by the court, to weigh the pain and anguish it found and to convert it into a monetary award.

When we consider only that evidence that supports the award and the reasonable inferences to be drawn therefrom, rejecting all evidence and inferences to the contrary, we must conclude that there is evidence of probative force which supports the jury’s answer to Special Issue No. 15. Garza v. Alviar, supra.

Upon consideration of the entire record we conclude that the jury's answer to the special issue is supported by factually sufficient evidence and that the answer was not against the great weight and preponderance of the evidence. In re King’s Estate, supra. Points four and five are overruled.

$250,000 as damages suffered by Mrs. Hobrecht as pecuniary loss.

Malone’s points of error six and seven categorized as its third contention urge that the jury answer to Special Issue No. 13(a) awarding the sum of $250,000 for pecuniary loss to Mrs. Hobrecht is unsupported by evidence, by insufficient evidence and alternatively that the finding is against the great weight and preponderance of the evidence as to be manifestly unjust. Once again we adhere to the standard of revjew applicable to legal insufficiency challenges, Garza v. Alviar, supra, and factual insufficiency challenges, In re King’s Estate, supra.

The instructions to the jury on the items of damage that might be considered in arriving at Mrs. Hobrecht’s pecuniary loss included the following:

You shall take into account the following elements of damages, and none other, and you are instructed to consider each element of damage separately, so as not to include damages for one element in any other element.'
(a) Pecuniary loss resulting from the death of Roland Hobrecht, taking into account the care, maintenance, support, services, advice, counsel, and reasonable contributions of pecuniary value that Mrs. Roland Hobrecht would in reasonable probability have received from Roland Hobrecht during his lifetime had he lived.

No objection was lodged to the proposed instruction by Malone as to any of the elements permitted to be considered by the jury. On appeal Malone recognizes the propriety of such inclusion in the instruction by directing our attention to Camco, Inc. v. Evans, 377 S.W.2d 703 (Tex.Civ.App.—San Antonio 1963, writ ref’d n.r.e.) and Texas Consolidated Transport Co. v. Eubanks, 340 S.W.2d 830 (Tex.Civ.App.—Waco 1960, writ ref’d n.r.e.).

Malone further recognizes that the decedent, in the last five years prior to his death, had a taxable income which varied from $18,000 to $23,000 per year and had a life expectancy of between eight and ten years.

We understand the gist of Malone’s complaint to be that the record should contain additional evidence of future earning capacity or of probable increase in earnings. The argument, however, ignores such items as care, maintenance, services, advice, counsel and other contributions having pecuniary value not related to earnings from employment.

The record shows that decedent and his surviving wife were very close, as was the entire Hobrecht family. Much time was spent by Mrs. Hobrecht with her husband enjoying regular bridge games and traveling to various race tracks in pursuit of their love of horses.

Decedent was the sole wage earner and as such the head of the household. Mrs. Hobrecht thus looked to him for counsel, services, advice and protection.

Prior to her husband’s death, Mrs. Ho-brecht was active and enjoyed life. Since the death of her husband she has exhibited the appearance of being lost and disoriented. She now seems lonely and depends upon her children for the security once provided by her husband.

In cases where recovery of unliqui-dated damages as pecuniary loss is sought on behalf of a surviving spouse, the law rarely, if ever, furnishes a precise legal measure of recovery. Thus, the amount to be awarded rests primarily within the discretion of the jury, and unless the award is so large as to indicate that it was the result of passion, prejudice, partiality, or corruption, or that the evidence had been disregarded, the verdict of the jury is conclusive and will not be set aside as excessive, either by the trial court or on appeal. Camco, Inc. v. Evans, supra.

Oftentimes it is extremely difficult to determine the pecuniary value of a spouse aside from the actual monetary contributions made to the marriage. The law hence vests the jury with considerable discretion and latitude in drawing upon their own knowledge, experience and sense of justice guided by proper instructions of the court. Under the evidence adduced it is not unrealistic to conclude that the decedent would have contributed from employment alone in the vicinity of $200,000 had he lived ten additional years. We are not prepared to hold that his care, maintenance, services, advice, counsel and other contributions having pecuniary value to the marriage would not have been valued at $50,000 for an additional ten years.

When we consider only the evidence supporting the award and the reasonable inferences to be drawn therefrom, rejecting all evidence and inferences to the contrary, we can only conclude that there is evidence of probative force supporting the jury’s answer to Special Issue No. 13(a). A review of the entire record convinces us that the jury’s answer is supported by factually sufficient evidence and that their answer was not against the great weight and preponderance of the evidence. Points six and seven are overruled.

Pecuniary loss of the Hobrecht children.

In points of error eight through thirteen categorized as contention number four Malone alleges that there is no evidence or that the evidence is insufficient to support the jury’s finding in response to Special Issue No. 14 which inquired into the pecuniary loss suffered by the adult children of the decedent. Malone further urges that the jury’s answer to Special Issue No. 14 was so against the great weight and overwhelming preponderance of the evidence as to be manifestly unjust.

The Hobrecht’s third amended original petition sought to recover on behalf of the adult children for loss of pecuniary support, companionship, society, affection and comfort. The special issue submitted was, however, not quite that inclusive.

The trial court submitted Special Issue No. 14 almost identically as requested by the Hobrechts. The issue reads:

What sum of money, if any, if paid, now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate John Hobrecht, Richard Barry Hobrecht, and Pamela Goodlet for the pecuniary loss; if any, resulting from the occurrence in question?
In answering this issue, you may consider the following elements, if any, and none other:
Loss of care, maintenance, support, services, education, advice, counsel, and contributions of a pecuniary value that they would in reasonable probability have received from their father, Roland Hobrecht, during his lifetime had he lived....

Malone lodged the following objection to the submission of Special Issue No. 14:

Further, we object to Special Issue No. 14 seeking pecuniary damages on behalf of Richard Barry Hobrecht, that particular line seeking damages for Richard Barry Hobrecht. There is no evidence of any pecuniary loss on behalf of Richard Barry Hobrecht, and as such, there is no basis for which to submit that issue to the jury.

During final summations counsel for Malone argued:

... as to the damages of the children the pecuniary loss, if you please, of the children, the factors which in my judgment bear on it — and I’m not going to tell you what figures to put, I am not even going to suggest a figure to you — but certainly Mr. Barry Hobrecht, who has a catering business in Dallas, the loss of his father to him is tragic because he was a very good friend. There was no pecuniary loss to Barry, there is no testimony as to any pecuniary loss to Barry, none whatever, absolutely nothing. As to John, possibly. John, you remember, testified that his father did from time to time lend him money which he paid back. That’s a loss. There is some pecuniary loss involved in not being able to have a father from whom you can borrow money when you need it even though you pay it back.
Pamela’s situation is quite different. You heard the testimony that her father helped her when the medical requirements of her child caused her to need money that she didn’t have. I have no doubt that so far as Mr. Hobrecht was able to continue that, that he would have.

On appeal, Malone reurges his announced trial position regarding Barry Hobrecht’s right to recover for pecuniary loss in the absence of some showing that he received financial assistance or expected to receive financial contributions from his father had he lived.

The Hobrechts respond that under the court’s instruction the jury was not restricted to a finding of financial contribution but could consider care, services, education and counsel.

While we must agree with the Ho-brechts that the instruction was not as narrowly limited as Malone now claims, still we are constrained to agree with Malone that the meager evidence adduced regarding Barry Hobrecht’s pecuniary loss is not supportive of the jury finding in Special Issue No. 14. We agree that the finding is against the great weight and preponderance of the evidence as to be manifestly unjust as it applies to Barry Hobrecht.

The Hobrechts recite the evidence in their brief which they consider supportive of the jury finding. We quote it in its entirety.

Barry Hobrecht enjoyed an excellent relationship with his father. Barry was also in the advertising business and attributed whatever success he had had in that business to his father. Barry considered his father one of the finest people he had ever known.

To the foregoing we can add little more. Even with the additional elements the jury was permitted to consider we are unable to find support for the jury award of $30,000. We sustain Malone’s contention that the jury finding is not supported by the evidence but is in fact contrary to it.

We are, however, in agreement with Malone’s trial assessment of the evidence supporting the jury finding as it applies to the other adult children of the decedent, John Hobrecht and Pamela Goodlett.

John Hobrecht, the youngest child of the decedent, is married, lives in a San Antonio suburb, and is independently employed as a painting contractor. John was very close to his father and often relied upon his advice and counseling in matters that affected his family and work. John could always depend on his father for assistance during a financial pinch and often obtained loans from him or counseling on how to resolve a pending monetary crisis.

Pamela Goodlett, thirty-three years of age at the time of trial, is married and has three children, the youngest of which is multi-handicapped and requires frequent hospitalization. Pamela depended heavily on her father for financial assistance in coping with medical expenses and in coping with the problems encountered in rearing a handicapped child.

Malone argues that John and Pamela are not entitled to recover for pecuniary loss inasmuch as neither produced evidence of amounts actually received by each from their father or amounts expected to be received from him had he lived. Reliance is placed upon Carlisle v. Duncan, 461 S.W.2d 254 (Tex.Civ.App.—Dallas 1970, no writ) and South Texas Coaches v. Eastland, 101 S.W.2d 878 (Tex.Civ.App.—Dallas 1937, writ dism’d).

We find neither case persuasive. In South Texas Coaches, there was no evidence in the record that the adult child of the deceased had ever received anything of value from her father or a reasonable probability that he would have contributed anything of value to her had he lived. See also Missouri, K & T Railway Co. of Texas v. James, 55 Tex.Civ.App. 588, 120 S.W. 269 (1909).

In Carlisle, the opinion is silent on the evidence, if any, that was developed showing entitlement or non-entitlement to pecuniary loss based upon a history of support. The opinion turns on the trial court’s failure to correctly instruct the jury on element of damages to be considered. Car-lisle is not in anywise instructive upon the issue before us.

It has long been recognized that adult children may recover damages for the wrongful death of parents, and in arriving at such damages the loss of prospective contribution from the deceased parent may be taken into consideration. San Antonio & A.P. Railway Co. v. Long, 87 Tex. 148, 27 S.W. 113 (1894), overruled on other grounds, Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983); Texas & P. Railway Co. v. Martin, 60 S.W. 803, 25 Tex. Civ.App. 204 (1901, no writ); I.G.N. Railway Co. v. Acker, 128 S.W.2d 506 (Tex.Civ.App. — Eastland 1939, err. dism’d judgm. cor.); Houston Gas & Fuel Co. v. Perry, 127 Tex. 102, 91 S.W.2d 1052 (1936); Texas Consolidated Transportation Co. v. Eubanks, 340 S.W.2d 830 (Tex.Civ.App.— Waco 1960, writ ref’d n.r.e.); Hartzell Propeller Co. v. Alexander, 485 S.W.2d 943 (Tex.Civ.App. — Waco 1972, writ ref’d n.r. e.).

Malone’s contentions address the question of the existence of evidence and its sufficiency to support an award for pecuniary loss and not the matter of excessiveness of the award. We, therefore, express no opinion on the amount of the award as to excessiveness inasmuch as that issue is not before us.

Our concern must focus on whether the jury verdict is supported by evidence. We find that as to John Ho-brecht and Pamela Goodlett it is sufficient and that the jury finding is not against the great weight and preponderance of the evidence as to be manifestly unjust. Cf. International-Great Northern Railway Co. v. Acker, supra. Malone’s summations to the jury conceded the existence of evidence to support some award and extolled the jury to supply the figure as they best could from the evidence. The matter was thus left to the jury’s sound judgment and sense of justice. Galveston, H & S.A. Railway Co. v. Puente, 70 S.W. 362, 30 Tex.Civ.App. 246 (1902, writ ref’d); Samford v. Duff, 483 S.W.2d 517 (Tex.Civ.App. — Corpus Christi 1972, writ ref’d n.r.e.).

The award for loss of consortium suffered prior to the death of the deceased.

Malone’s points fourteen and fifteen categorized as the fifth contention argue that the jury’s answer to Special Issue No. 13(b) awarding the sum of $25,000 as damages for loss of consortium for the period prior to the death of the deceased is unsupported by evidence, by insufficient evidence and alternatively, that the finding is against the great weight and preponderance of the evidence as to be manifestly unjust. The argument advanced, however, addresses the question of excessiveness and we, therefore, treat the contention as one of exces-siveness.

The only argument advanced by Malone in support of its points is that the award of $25,000 for a period slightly over one month translates into an award of $800 plus per day. The award is therefore characterized as immense and enormous. The Hobrechts admit that the amount is generous. We agree.

The court’s instruction to the jury tracks the definition of consortium found in Whittlesey v. Miller, 572 S.W.2d 665 (Tex.1978). The jury was, therefore, permitted to consider affection, solace, comfort, companionship, society, assistance and sexual relations necessary to a successful marriage as items constituting consortium. The record in support of the jury answer does not contain an abundance of evidence in support of each of the items the jury was permitted to consider.

The evidence, however, is uncontradicted that the Hobrechts were a very close family. The presence of each of the items collectively constituting consortium may readily be inferred from the testimony of the numerous witnesses. It is not to be doubted that Mrs. Hobrecht’s loss is a real one requiring some compensation.

The loss of consortium and its constituent elements necessarily involve subjective states incapable of precise translation into monetary amount. The duty of resolving the monetary value to be placed on the loss falls upon the jury and its impartial conscience and judgment acting reasonably, intelligently and in harmony with the evidence. Whittlesey v. Miller, supra, at 667. While we conclude that there is evidence of probative force sufficient to entitle Mrs. Hobrecht to recover for loss of consortium suffered prior to the death of her husband and that the jury’s finding of such a right to recovery is in keeping with its reasonable and intelligent exercise of guided discretion, we do not agree that the amount awarded is in keeping or in harmony with the evidence. We sustain Malone’s contention that the amount awarded is excessive.

Although we find that the amount awarded is not in keeping or in harmony with the evidence, we find no showing that passion, prejudice or some other improper motivation controlled the jury’s award of damages in response to the loss of consortium special issue. Under the circumstances, this court may order a remittitur without the need for a reversal and remand of the case. World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962 (Tex.Comm’n App. 1937, opinion adopted).

The fact that the award is excessive is not an affirmative showing that the jury was motivated by passion, prejudice or some other improper motive unless the verdict is shocking to the judicial conscience. World Oil Co. v. Hicks, supra.

We hold that the amount of the verdict on loss of consortium prior to death and the judgment based thereon are excessive. Our finding of excessiveness does not, however, compel a finding that the amount awarded was motivated by passion and prejudice or an improper motive. In arriving at our decision, we have painstakingly examined the entire record bearing on the issue of damages. In our exercise of our judicial judgment and discretion, we find that the amount of $2,500 would be a fair and reasonable compensation to be awarded for loss of consortium for the period from September 8, 1980 to October 10, 1980. We sustain Malone’s points of error urging excessiveness of the award for loss of consortium prior to death.

Alignment of Parties and Peremptory Challenges.

Points of error seventeen and eighteen categorized as contention number seven complain of the trial court’s failure to align the parties and in failing to award Malone more peremptory challenges.

Prior to the selection of the jury, Malone filed its motion to equalize strikes. After a hearing the trial court awarded Malone eight peremptory challenges and awarded the Hobrechts and the third party defendant, Dr. Pomerantz, six peremptory challenges each.

It is the position of Malone that the Hobrechts and the third party defendant should have been treated as a “single party” and the strikes then equalized between the Hobrechts and the third party defendant as a “single party” against Malone as a single party.

In Patterson Dental Co. v. Dunn, 592 S.W.2d 914 (Tex.1979), the court spelled out the procedure to be followed by a trial court in allocating jury strikes. Initially, the trial court is required to decide whether there is antagonism between multiple parties on the same side of the lawsuit with respect to a material issue to be decided by the jury. After alignment of the parties, the court must then equalize the strikes in accordance with the ends of justice so that neither side will receive an unfair advantage. Equalization of strikes is committed to the sound discretion of the trial judge. Although the trial court found antagonism between the Hobrechts and the third party defendant, Malone argues that there could be no antagonism because there was, in fact, an unwritten agreement between the Hobrecht family and Dr. Pom-erantz.

There has been no evidence adduced in the record indicating the existence of such an agreement and Malone concedes that in the absence of such an agreement there was antagonism.

Reliance is placed upon Greiner v. Zinker, 573 S.W.2d 884 (Tex.Civ.App.—Beaumont 1978, no writ) and City of Houston v. Sam P. Wallace & Co., 585 S.W.2d 669 (Tex.1979). Both of these cases involve defendants in a multi-party lawsuit wherein a defendant or defendants settled with the plaintiff prior to trial. In both of these cases the settling defendants were given their own set of strikes before the trial court was advised of the settlement. Neither case is deemed controlling.

We find the facts in City of Amarillo v. Reid, 510 S.W.2d 624 (Tex.Civ.App. —Amarillo 1974, writ ref’d n.r.e.) to be more analogous to the facts in the instant case. There the very pleadings of the defendant supplied the antagonism by alleging that the third party defendant was solely responsible for the plaintiffs’ damages. The pleadings of Malone placed Dr. Pomer-antz in the same position as the third party defendant in City of Amarillo v. Reid, supra. We conclude that the trial court did not err in refusing to realign the parties other than as designated by the pleadings. We must next determine whether the trial court abused its discretion in the manner of equalizing the strikes between the parties.

The manner of allocation was well within the guidelines discussed in Patterson Dental Co. v. Dunn, supra, wherein the court stated:

Although article 2151a was intended to add an element of flexibility in awarding strikes among multiple parties and the trial court has discretionary power in determining the number of strikes awarded, in most cases a two-to-one ratio between sides would approach the maximum disparity allowable. In cases in which the disparity between strikes allowed the two sides did not exceed a two-to-one ratio, courts have held that there was no abuse of discretion.

The trial court’s allocation of strikes among the parties created a one and one-half to one ratio between the sides. We find no abuse of discretion in the manner in which the trial court equalized the strikes.

In examining the entire record, we are hard pressed to find how the trial court’s allocation of strikes could have produced an unfair trial. Liability was practically conceded by Malone during final summations and the only issues presenting serious conflict were the damage issues. The appeal before us bears this out. Only issues addressing the jury awards are before us.

Indeed, during final summations Malone’s counsel admitted that the case was a defenseless one. Much of the argument thereafter was addressed at reducing the recovery on the various issues submitted to the jury.

An examination of the entire record does not disclose an unfair trial. Retail Credit Co. v. Hyman, 316 S.W.2d 769 (Tex.Civ.App.—Houston 1968, writ ref’d). Points of error seventeen and eighteen are overruled.

Remittitur

Malone’s point of error sixteen categorized as contention number six complains of the total amount awarded by the jury to the Hobrechts and contends that the trial court erred in failing to suggest a remitti-tur. The record indicates that Malone filed a motion entitled, “Motion to Disregard Jury Finding and Motion to Enter Judgment” in which it prayed that the trial court order remittitur in the amount of $600,000. The motion contains an unsigned fiat seeking to set the matter for determination on November 9, 1982. There is no indication in the record that a hearing was ever held on the motion on that date. The final judgment entered on November 12, 1982, however, addresses Malone’s motion and refuses to order remittitur. There is no statement of facts before us containing evidence adduced in support of the motion seeking remittitur. We are, thus, left to speculate as to the matters raised before the trial court in support of such relief.

A remittitur of damages should not be suggested unless the verdict is shown to be the product of passion, prejudice or other improper motives or the amount fixed was not the result of a deliberate and conscientious conviction in the minds of the jury, or it shocks the conscience of the court. Lee v. Andrews, 545 S.W.2d 238, 248 (Tex.Civ.App. — Amarillo 1976, err. dism’d).

The powers of a trial court and a court of appeals to determine the propriety of remittitur are governed by the same standard. Highlands Insurance Co. v. Baugh, 605 S.W.2d 314, 319 (Tex.Civ.App. —Eastland 1980, no writ).

Malone has made some effort in its brief before this court to demonstrate that the verdict was the product of passion, prejudice, or some other motive, that the amount fixed was not the result of a deliberate and conscientious conviction in the minds of the jury and that it shocks the conscience of the court. Although we have not agreed with Malone that the verdict reflects any of the foregoing defects we, nevertheless, order remittitur in the instance wherein it appears appropriate to us.

In the absence of a record indicating the measures taken by Malone to invoke the trial court’s discretion to order remittitur, we are in no position to hold that the trial court abused its discretion to order remittitur. Plainly and simply we can only conclude that the motion of Malone was permitted to speak for itself. A review of the motion does not indicate that the trial court was in error in overruling it absent some showing that the verdict was in fact tainted. We overrule Malone’s point of error sixteen insofar as it complains of the trial court’s refusal to order remittitur. To the extent that the point complains of the total amount awarded, Malone will receive the benefit of remitti-tur to be suggested by this court.

Limitation of recovery.

Points of error one through three categorized as the first contention complain of the trial court’s refusal to limit the judgment to $500,000 plus reasonable medical expenses and costs of court.

The jury’s verdict was received on October 29, 1982. Thereafter on November 1, 1982, the Hobrechts filed their Motion for Judgment on the Verdict seeking to have the trial court enter judgment for the sum of $917,921.49 with interest thereon at the legal rate from date of judgment and for costs.

On November 8, 1982, Malone filed its Motion to Disregard Jury Finding and Motion to Enter Judgment seeking to have the trial court disregard the jury award of $250,000 for loss of consortium after the date of death of the decedent arguing that loss of consortium is allowed only in injury cases and not as an element of a wrongful death cause of action. The motion then prayed for entry of judgment for the sum of $667,921.49 or alternatively for a limitation on recovery for the sum of $500,000, invoking article 4590i.

The trial court opted to disregard the $250,000 consortium award in response to Malone’s alternative prayer. Thereafter the Hobrechts sought to have the trial court restore the eliminated award of $250,-000 for loss of consortium and Malone sought to further limit the amount of recovery to $500,000 by again invoking the provisions of TEX.REV.CIV.STAT.ANN. art. 4590i.

On appeal Malone devotes a considerable portion of its brief to argument addressing the constitutionality of article 4590i. The balance of the argument, considerable as well, is devoted to the applicability of article 4590i to pharmacies as a health care provider.

Nothing in the pretrial or trial pleadings of any of the parties, except the third party defendant, purports to invoke article 4590i. There is no indication that the lawsuit filed by the Hobrechts ever purported to be a “Health Care liability claim.” Indeed Malone did not file special exceptions to the pleadings of the Hobrechts or insist that compliance be had with the prerequisite for the filing of a “Health Care liability claim.” See art. 4590i, §§ 4.01, 5.01.

The suit was filed pursuant to TEX.REV. CIV.STAT.ANN. art. 5525, commonly known as the “Survival Statute” and pursuant to TEX.REV.CIV.STAT.ANN. art. 4671 et seq., the “Wrongful Death Statute.”

Pre-trial preparation and trial strategy indicate that both parties considered the Hobrechts’ claims to be nothing more than wrongful death and survivor’s claims. The nature of a claim should not change after the matter has gone to the fact finder.

Nevertheless, we need not agree with the Hobrechts that a claim for limitation of damages is waived in the absence of some pleading affirmatively invoking the limitation as an avoidance or partial avoidance. Nor need we decide whether Malone falls within the category of a “Health Care provider” so as to be entitled to the favored status afforded by the Act.

We agree with the Supreme Court of North Dakota that “the limitation of recovery does not provide adequate compensation to patients with meritorious claims; on the contrary, it does just the opposite for the most seriously injured claimants. It does nothing toward the elimination of non-meritorious claims. Arneson v. Olson, 270 N.W.2d 125 (N.D.1978); see also Witherspoon, Constitutionality of the Texas Statute Limiting Liability for Medical Malpractice, 10 TEX. TECH.L.REY. 419 (1978).

We recognize that our brethern of the Court of Appeals at Beaumont have recently held that portions of section 11.02 of article 4590i, as they apply to hospitals, are unconstitutional. See Baptist Hospital of Southeast Texas, Inc. v. Baber, 672 S.W.2d 296 (Tex.App. — Beaumont 1984, writ pending). We extend that holding to a corporation operating a pharmacy even if it qualifies as a health care provider under section 1.03(a)(3) of the Act. We overrule appellant’s points one through three.

Loss of consortium after death.

We now address the sole contention brought forth in the Hobrechts’ separate appeal; that the trial court erred in disregarding a jury award of $250,000 for loss of consortium following the death of Roland Hobrecht. The trial court’s action was predicated upon the argument advanced by Malone on appeal, that loss of consortium is not recoverable as an element of damages in a wrongful death action. Whether loss of consortium is an independent cause of action or an element of damages is immaterial to our holding.

Whatever the prevailing view may have been at one time, it is clear, since the decision in Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), was handed down, that recovery under the wrongful death statute is no longer limited to pecuniary losses. We can imagine no injury to the marital relationship more total or permanent than the death of one of the marital partners caused by the negligence of a third party.

Although recovery sought for loss of consortium is primarily for harm to intangibles or sentimental element^ of the marital relationship, the losses are real, direct and personal. Whittlesey v. Miller, supra.

We agree with the courts in Standford v. McClean Trucking Co., 506 F.Supp. 1252 (E.D.Tex.1981) and Missouri Pacific Railroad Co. v. Dawson, 662 S.W.2d 740 (Tex.App. — Corpus Christi 1983, writ ref d n.r.e.) that the time has come for there to be recovery in Texas for damages for loss of consortium when death occurs as a result of the negligence of a third party. See also Monsanto Co. v. Johnson, 675 S.W.2d 305 (Tex.App. — Houston [1st Dist.] 1984, writ pending).

We uphold the Hobrechts’ point of error and hold that the trial court erred in disregarding the jury award for loss of consortium following death. We reverse the judgment of the trial court and reinstate the award of $250,000 awarded for loss of consortium after the death of Roland Hobrecht,

Inasmuch as we have sustained Malone’s challenge to the award of $30,000 made to Barry Hobrecht as pecuniary loss for the loss of his father as being without sufficient support in the evidence but contrary to it, and the award of $25,000 made to Mrs. Hobrecht for loss of consortium prior to the death of her husband as being excessive, and being of the opinion that the issue of liability was not in fact a contested one, we will reverse, sever and remand that portion of the controversy involving Barry Hobrecht’s claim for pecuniary loss as a clearly separable claim from the other issues resolved and found to be without error. TEX.R.CIV.P. 434; Cochran v. American Savings & Loan Association of Houston, 586 S.W.2d 849 (Tex.1979); Moore v. Moore, 259 S.W. 322 (Tex.Civ.App. — Waco 1924, no writ).

Since we have determined that the award of $25,000 to Mrs. Hobrecht for loss of consortium prior to the death of her husband is excessive and that the sum of $2,500 would be reasonable for the elements of damage sustained, we are required to treat the balance as excess.

Therefore, having found no reversible error requiring remand other than the claim of Barry Hobrecht for pecuniary loss, which we sever as a separable claim and remand to the trial court for retrial, we will reform and affirm the trial court’s judgment as modified by the reinstatement of $250,000 for loss of consortium after death and by reduction of the award for loss of consortium prior to death to $2,500 if appel-lee, Mrs. Hobrecht, files her written remit-titur in the sum of $22,500 within fifteen days from the date of the delivery of this opinion; otherwise, that part of the judgment will be severed, reversed and the cause remanded for a new trial.

The judgment of the trial court is reversed and remanded in part as severed and reversed and remanded subject to an affirmance as reformed on condition of re-mittitur.

      . The requested special issue as submitted tracks the suggested form found in § 12.02, TEXAS PATTERN JURY CHARGES. See also Samford v. Duff, 483 S.W.2d 517 (Tex.Civ.App.—Corpus Christi 1972, writ ref'd n.r.e.).

      . The third party defendant on the second date of trial filed his cross-action for declaratory judgment invoking the provisions of article 4590i and praying for a declaration that he was entitled to recover from Malone for the filing of a bad faith claim against him.

      . Whittlesey v. Miller, 572 S.W.2d 665, 667 (Tex.1978).

      . Note, Judicial Treatment of the Negligent Invasion of Consortium, 61 COLUM.L.REV. 1341 n. 1 (1961).

      . Rule 434 in part provides:
      ******
      Provided, first, that no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, ... and if it appears to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error, provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested....