Full opinion text
WALKER, Justice. This action was brought by appellee, the named Insured in a public liability policy issued by appellant, against the appellant to recover the amount of a judgment which had been, rendered against appellee in an action for damages for personal injuries by one Riley Alexander. We refer to appel-lee hereafter as Insured and to appellant, as Insurer. The present action was occasioned by Insurer’s refusal to accept Alexander’s offers to compromise and settle his action against Insured for a sum within the limits of the policy held by Insured, as will hereinafter more fully appear. After Alexander’s offers were rejected, judgment was rendered against Insured for $6,000 more than the sums contracted to be paid in said policy, and Insured, having paid the full amount of the judgment, brought this action to recover the sum paid out, with interest thereon from the date the payment was made. The petition asserts, in effect, two causes of action, one for the sums contracted to be paid and one (in tort) for the excess of the judgment above those sums; but Insurer has not denied the contractual liability and the issues made in the present action are limited to the cause of action in tort, for the excess. The duty and standard of care invoked by Insured are .those declared in G. A. Stowers Furniture Company v. American Indemnity Company, Tex.Com.App., 15 S.W.2d 544. We have limited our discussion to the cause of action in tort. Insured is, and was at all times referred to herein, a common carrier for hire, operating motor busses for the carriage of passengers over a route extending from Lufkin to Beaumont. On the night of April 13, 1943, between 11:00- and 12:00 o’clock, Insured’s bus, bound for Beaumont, collided with the aforesaid Riley Alexander upon the public highway while he was attempting to repair his automobile and injured him severely. The collision occurred at a place between Woodville and Kountze, way stations on Insured’s route. About the first of the year 1944, Riley Alexander brought suit against Insured in the District Court of Hardin County to ' recover damages for the injuries he had sustained. He alleged that Insured had been negligent in the operation of the bus at the time and place of the collision, and prayed recovery of $65,000 in damages. Insured’s policy insured 'it against loss from Alexander's injuries — to the extent of $5,000 only. This policy also bound Insurer to defend Alexander’s suit against Insured, at its own expense, and to pay other items of expense which were incidental to a judgment against Insured and to,an appeal from that judgment. Insured could not compromise and settle Alexander’s action, without Insurer’s consent, except -at its own expense. The relevant provisions of the policy need not be quoted ; they made applicable to Insurer, in considering Alexander’s offers of settlement, the duty and standard of care declared in the Stowers Furniture Company case. Insured notified .Insurer of the collision between its bus and Alexander, and later notified Insurer of the action for damages brought by Alexander. Insurer, acting under the aforesaid policy, assumed control of the defense of Alexander’s- action, selected counsel to defend the action in behalf of Insured and paid these counsel for their services, and the counsel selected filed answer in behalf of Insured and defended Insured upon the trial of Alexander’s ac'tion in the District Court of Hardin County and in the appellate courts. No other ■counsel represented Insured in Alexander’s ■action, and there is no evidence that Insurer ever suggested that Insured procure other counsel. Alexander’s action for damages came on for trial in the! • District Court of Hardin County on May 31, 1944, before the court sitting with a - jury. ' Special Issues were submitted to the jury and a verdict was returned on June 6, 1944, assessing Alexander’s damages at $11,000, over twice the amount of Insured’s policy. On June 7, 1944, the trial court rendered judgment in behalf of Alexander against Insured for $11,000. Insurer then took an appeal to this Court of Civil Appeals in Insured’s name, but this Court affirmed the trial court’s judgment on June 7, 1944, and later, in due time', the Supreme Court refused an application for a writ of error to this Court’s judgment. Several offers of settlement were made by Alexander’s counsel to both Insured and Insurer during ttie course of the trial of Alexander’s case. The first of these offers was made to Morris McMullen, who attended the trial as a representative of Insured and who testified that he was Insured’s traffic manager. What authority he had from Insured was never fully proven; there is no evidence that he had authority from Insured to compromise and settle the Alexander suit (he denied that he had the authority) or to approve in Insured’s behalf of Insurer’s conduct of the defense of that suit. There is some dispute regarding the exact sum required in this offer, but it was at least within the limits of Insured’s policy. Insured was represented by two lawyers at the trial of Alexander’s case and Mr. McMullen referred this offer of settlement to the leading counsel of the two, for Insurer’s consideration. This was in strict accord with the policy, under which a settlement by Insured, without Insurer’s consent, was at Insured’s expense. Later, Alexander’s counsel made offers to the same lawyer to whom we have referred as Insured’s leading counsel, to compromise and settle the case for $4,500, which was $500 less than the amount of the policy, and the lawyer to whom this offer was made referred it to Insured’s claims manager, the authorized and responsible officer of Insurer, for acceptance or rejection. The claims manager rejected it. There is evidence (and none to contradict it) that this officer acted upon the opinion of the two lawyers defending Insured, who thought that they would either win the trial or would bring recovery below the policy limits. There is also evidence that the claims manager, before he acted, was informed that Mr. McMullen approved of this course, but McMullen denied that he approved, or that he expressed an approval, of this course of action, and the conflict was not :put to the jury. Nor, indeed, was the ground upon which the claims manager acted. We have referred to the absence of evidence that McMullen had authority from Insured to give Insured’s consent to the refusal of offers of settlement. There is no evidence tending to show that Insured ever approved Insurer’s rejection of Alexander’s offers. | This offer of settlement for $4,500 was repeated during the trial. Alexander’s counsel communicated it to one of Insured’s present counsel, who, in Insured’s behalf, then communicated it to the lawyer to whom we have referred as Insured’s chief counsel, and brought to the attention of this lawyer Insured’s limited protection under the $5,000 policy. The offer was made again after all of the evidence had been introduced, and before the charge was submitted to the jury; it was rejected, apparently by the lawyer of Insured to whom it was made. It is not in evidence that Insured ever demanded or requested Insurer to accept the offer of settlement. After the trial court’s judgment became final, Insured demanded that Insurer pay it in full; it then amounted to $11,679.79. Insurer, however, refused to pay more than the amount of the policy, to-wit, $5,000, and costs and interest on the judgment, leaving Insured to pay the balance, amounting to $6,000. Insured then paid the entire judgment, in the sum stated. Insurer af-terwards offered to pay to Insured the sum .previously offered, namely, policy limit, costs and interest on the entire judgment; but Insured refused to accept this offer and brought suit for the entire amount paid out in satisfaction of the judgment, claiming that Insurer was obligated to-pay it all. The trial pleadings of Insurer and Insured need not be described in detail. Insured alleged that Insurer was negligent in refusing to accept Alexander’s offers of settlement. These allegations Insurer denied, pleading that Insurer rejected the offers in good faith, with due care. The cause was tried 'to the court sitting with a jury,-and the evidence adduced en the trial of Alexander’s case was read to the jury on the trial of this cause. Only one Special Issue was submitted to the jury, .which with the jury’s answer thereto, reads: “Do you find — that a person of ordinary prudence in the exercise of such degree of care as such a person would use in the management of his own business, would, under the facts and circumstances known to the — Highway Insurance Underwriters, or to its attorney who represented the defendant, Lufkin-Beaumont Motor Coaches, Inc., in said, suit so brought by Riley Alexander against it, prior to the rendition of the jury’s verdict in said case, have settled said case by paying said Riley Alexander the sum of $4,500.00? Answer: Yes.” Pursuant to the jury’s verdict, the trial court rendered judgment in behalf of Insured against Insurer for $11,679.79, together with interest thereon from the date that sum was paid out by Insured, namely, May 29, 1945; and from this judgment Insurer took this appeal. The principal question raised on this appeal if whether there is any evidence to support the jury’s finding that Insurer was negligent in refusing the offers to 'compromise and settle Alexander’s case for $4,500, and we will therefore state the relevant portions of. the evidence introduced in the trial court. This evidence relates to two basic issues, namely, that of Insured’s liability in damages for Alexander’s injuries, and that concerning the extent of Alexander’s damages. The proof relevant to the latter issue is stated first. (1) Dmnages sustamed by Alexander: This issue was not disputed in the proof by the parties. The relevant testimony given in behalf of Alexander was not contradicted in any material respect. All of the evidence of any weight whatsoever concerning the nature, extent and probable duration of Alexander’s injuries and the probable effect of those injuries upon Alexander’s earning power which was introduced upon the trial of Alexander’s case was proven by Alexander and by witnesses called by him to the stand, namely, his wife and Dr. Beazley, his attending physician. It is evident that no defense to - Alexander’s claims could be made. The evidence adduced in behalf of Alexander showed that Alexander was a relatively young man with a life expectancy in excess of thirty years, that he had little education and no means of earning his livelihood except by manual labor, that he •was seriously injured when the bus struck him and that these injuries had permanently disabled him from procuring gainful employment except in cases where he could act as an independent contractor. According to this evidence, he was, to all intents and purposes, totally and permanently disabled to work and earn money in the occupations he had followed before his injury occurred. The relevant testimony was as follows:’ The bus which struck Alexander was large and heavy. The operator of the bus thought that it was about 8 feet wide and about 20 feet long, and that it carried 22 passengers. According to some of the passengers on the bus, the vehicle was moving at a speed variously estimated as low as 25, and as high as 35 miles per hour. There was other evidence that the speed of the bus was much higher. Alexander was struck on the right side by the bus as he stood beside his own automobile, stooping over to repair it. The force of the blow drove his body down the highway for a short distance, and caused him to lose consciousness at least temporarily. He remained at the scene of this incident without treatment for what must have been a considerable time. The witnesses estimated this period of time differently, but all of the evidence on the point shows that Alexander was removed in an ambulance which came from Silsbee, and he was injured upon the highway at a point some 12 miles beyond Kountze, through which the ambulance from Silsbee had to pass. It was- in evidence — and this evidence was not contradicted — -that Alexander’s brother-in-law Lilley procured this ambulance to come to the scene of the injury by a telephone call which he made from Kountze, after he had driven Alexander’s automobile from the scene of the injury to Kountze. Estimates of an hour intervening between the time Alexander was hurt and the time he was removed in the ambulance were the most convincing of those -proved. Alexander was injured on Tuesday night, April 13, 1943. He was conveyed in the ambulance to Hotel Dieu hospital in'Beaumont, and he remained there until the following Sunday; on that day he was conveyed in an ambulance from the aforesaid hospital to his father’s home, some three miles from Silsbee. He was confined to his bed at his father’s for some 90 days, and according to his wife, remained at his father’s home some time longer, until the latter part of August. Then he and his wife returned to their own abode, where they resided when Alexander’s case was tried. They first settled in the automobile trailer in which they lived when Alexander was hurt, but not long before the trial of Alexander’s case, a small house was erected into which they moved. This is referred to in the evidence once as about half as big as a box car. Alexander testified that he had sustained broken bones in his pelvis and in each of his legs below the knee, with some flesh wounds. At the trial in June, 1944, some 14 months after the injury, he testified that he did not have normal use of his right foot, that his left knee was stiff and he could not straighten his left leg, that one of his fingers was stiff and that a popping noise occurred in his right leg when he moved it; all of these resulted from his injury. He testified further that under the orders of his attending physician, Dr. Beazley, he was wearing, and had w.orn for some time, an elastic girdle about his pelvic region, to support his hips and body; that he suffered pain in the middle of the back and in the left knee, and that walking any distance caused him to suffer pain in his hips and back. He testified that his sleep was interrupted and that he was compelled to arise 4 or 5 times a night to void his kidneys.. He testified that he was nervous, that he constantly suffered .pain, and that his condition had not improved during the past 6 months. He also testified that he did not limp before the occurrence of his injury (Dr. Beazley testified that Alexander had a “decided” limp.) All of these effects he attributed to his injury; he had not suffered from them before that occurred. Alexander testified further that he could not do manual labor. He had fallen several times, apparently because his knee and pelvis would not support him, though whether this only occurred while he was at work is not clear. “Every couple of days I. have to* just lay around'.” He testified further that it was necessary for his wife or some one to stay with him most of the time, to help him. From his testimony, it appears that he was 33 years old when injured by Insured’s bus, and it was otherwise shown that his life expectancy at the time his case was tried exceeded 30 years; that he was married and had been for about 4 years before he was injured; that his formal education ended in the 8th grade; and that he earned his living by manual labor. He had been a farmer when a boy, and had worked as a carpenter. At the time he was injured he was employed as a riveter in an aircraft plant at Fort Worth, with an average daily wage of about $6.40; and he had returned to his home near Silsbee in response to an order of his Draft Board, for examination. He had done no work of any importance since his injury. He had made $25 or $30 manufacturing some rings, and had sawed the rafters which were used in his house. He testified to two previous injuries. One of these had occurred in 1939, about 4 years before the injury for which he sued Insured, and the other had occurred at a time not definitely proved (“several years ago”). He said that for the injury first mentioned he drew about $50 in workmen’s compensation payments and for the other, about $85.00. There was no evidence that either injury was serious; according to such evidence as the record contained, each of these injuries was temporary and was not serious, and he had recovered from each before he was hurt on April 13, 1943.' He had failed to mention one of these injuries (to his shoulder) when his deposition was taken (about 5 months before trial of his case) but explained this omission by saying that he had forgotten it; he first mentioned the omitted injury himself, on trial. He made no complaint of this shoulder during the trial of his case. Mrs. Alexander confirmed her husband’s testimony in several respects which need not be mentioned. She testified that she stayed with Alexander and attended him while he was at his father’s; “I had to.” She said there were “several things to do for him. He couldn’t roll over at the time we were there. He couldn’t roll over, he couldn’t move his legs or anything; so I had all that to do and he was in so much misery until I would have to rub his back and legs, and things like that, with liniment, and put hot poultices on him, and give him tablets to ease him. And — Oh, just a number of things that you would do, like that. Q. Did he appear to be in pain during any of that time? A. He certainly did.” After they returned to their own home, she continued to care for her husband, and still did at the time of trial. “He complains and at times, if he tries to do anything — sometimes he will think he will try to do something — maybe he can but when he tries ⅛, his back or hip, or something, throws him and I have to pick him up and carry him in the house with whoever is there to help me. And sometimes he stays in bed 3 or 4 days, or a week, and sometimes he can’t roll over, he is so sore and hurts so bad.” She said that she did the household chores and attended to some cattle they had. She said that she and her eldest brother had erected the little house they occupied at the time of the trial, adjoining the place where the trailer had been. “Q. Who actually did the manual labor in building that house? A. I did. Q. Anyone else to help you? A. My — oldest brother. * * * He just worked on the days that he would be off work, or on Sundays.” She said that her husband did no work on this house other than saw the rafters. She testified that Alexander had been in good health and had been gainfully employed from the time they married (in 1938) until he was injured (in 1943), but that since the injury “He couldn’t work and I have had to do what was done. He couldn’t malee any money anyway.” She said that her husband had tried to 'nail some boards on the house but “he fell and he couldn’t so he had to quit.” He had also attempted to repair an oil stove, but had failed because he was too nervous. She testified that Dr. Beazley first saw her husband during May, 1943, and that he had seen her husband several times altogether. She roughly estimated at a dozen the number of these occasions. Dr. Beazley said that he first saw Alexander during the Spring, about May, of 1943, and his recollection was confirmed to some extent by the date of his first X-ray of Alexander which was dated May 18, 1943. Alexander, Dr. Beazley thought, was then at his father’s home. Dr. Beaz-ley found Alexander “lying in the bed with considerable wasting about his body, and unable even to get up — get out of bed.” Alexander complained of pain at the time. “I gave him some sedatives, and, from the history of the case, I instructed him to remain in bed for a longer time — I think a week or two — until a better union could take place. And then I would X-ray him, to ascertain just what should be done for him.” He said that he later X-rayed Alexander (on May 18, 1943, a little over a month after the injury), and he described Alexander’s injuries as follows: “Well, there was a break to each of the small bones on the outside of each leg * * * each bone * * * about two inches from the top * * * was broken, what we call fractured. It was more or less splintered in one side * * * I think the left. But, now, these bones were broken * * * not a straight break like a saw would make, but broken like you would a stick.” Regarding the knee joint, “it was discovered *' * * a little later, that this joint was also bruised and hurt and injured in some way, he was unable to have proper motion in this knee.” Referring to the pelvis, he described it as consisting of three separate bones which “make up what we call the girdle. In one of these, sections (that, he later said, on Alexander’s right side) there was a distinct fracture all the way through, of one of these thirds * * * this third had a fracture right through, in this position (indicating).” That was in the region of the groin, on the right side, in the right leg. This bone in the pelvis was “just broken like you would a stick. It is not a straight break, but a fracture like a stick. Just take a stick and break it and it don’t break like sawing it in two, but breaks with a lot of little prongs in it. Q. Yes, sir. A. And that was about the distance that 'break covered, somewhere about two inches, whereas a saw, you know, just makes a little small break.” (We construe this testimony as showing, not the length of the break but roughly the thickness, the surface area of the break between outer and inner walls of the bone). He described that bone as a very strong bone; “I would call it the seat of the back bone.” He had recently (two days before he testified in June, 1944, some 14 months after the injury) made another examination of Alexander and described his findings as follows: “The hip and the knee (it was the left knee) is flexed, what we call flexed, or bent about this much (indicating). I don’t think he can straighten it, because I put a pretty good deal of weight, pressure on it myself a day or two ago (he had hung a 40 pound weight on the left leg) trying to push it back straight. It won’t go back. He has more or less, what we call ankylosis * * * means anchoring or fracturing of the bones in an abnormal position.” This, he thought “could be straightened out but, if you straighten it, I would feel you might have a worse condition after you got through straightening it because, if you straighten it, most likely it would remain straight and not able to move, at all.” He explained the cause of this condition. “That knee unquestionably received a severe blow of some kind, so much so that in the bruising and the recovering of that there was some scar tissue in some of these ligaments supporting the knee joint.” Such scar tissue, he said, would not stretch. “You can break it and cut it but it is not flexible •like it used to be.” He thought that the ligaments and tendons in the region of this knee had been injured and were probably “torn loose from the anchorages to the bones.” In his opinion there had been an ossification of this joint. He said, further, that “chances were against” the condition of this knee improving; “* * * but this one, having gone a - year and instead of getting better, it is a little worse now than it was to begin with, I would say the chances are against it. Q. * * * Chances are more likely it will grow worse than better. Is that it? ' A. Yes, sir, because it hasn’t already been loosened up.” Further, he said, the condition of this knee made more probable a future invasion of rheumatism. Concerning Alexander’s hip, he testified, in effect, to the opinion that the blow received by Alexander had injured the ligaments, tendons and cartilages enclosing the hip joint. He had also examined this hip recently (evidently on the occasion two days before testifying). “Q. (Did he find) any looseness or lack of proper function in that right hip? A. We have to take that from the man, because you can’t pull the leg enough to stretch that ligament, you couldn’t stretch it a quarter of an inch. * * * In motion, he doesn’t seem to have the proper control of it. * * * When I have him to move one leg, like that, and then move the other like this, he doesn’t have the proper control of this * * * I believe it is right * * * he doesn’t have the proper control of the injured hip, like he has of the left. You see, I can’t see inside there, and you don’t dare cut in there. * * * Q. * * * Whatever condition is there, you don’t think it would be remediable, but would be a permanent condition? A. Yes, sir.” And it seemed to be his opinion that this hip was peculiarly liable to recurrent injury. Further, concerning this hip: “I know that bone (obviously the pelvic member he first referred to) was fractured and most likely the joint was loosened.” He said again that the existing condition of the. hip was probably permanent. While exhibiting X-ray photographs taken recently, he testified that “There is infiltration of some kind of tissue there; an additional tissue has been thrown out in that original injury.” This was inside the hip joint and “that would have a tendency to more or less ankylose or stiffen as time went on, basing my opinion on the fact there is some infiltration now, during the past year.” He testified that Alexander had a “decided” limp (Alexander had said that he did not limp before the injury) ; “ * * * the legs don’t harmonize.” He said: “The knee (referring to the left knee) is bent forward and to the left, or outside. That would throw the hip joint a little bit out of line, in its original socket. Would throw the hip joint out of line and dislocate his hip because the leg should be straight both ways, back and forth and lateral. It also has some bearing on the ligaments in this joint.” Walking on these “uneven length legs” had a tendency to affect the pelvic region; “ * * * it would be tilted a little bit. He would throw more weight on the right side.” And the fact that the left leg was shorter would accentuate the defect in the right hip. (This testimony confirmed to some extent, and afforded a basis for the testimony of Alexander and his wife concerning Alexander’s falls.) His testimony also afforded some basis for relating Alexander’s complaints of having to arise at night to the 1943 injury. He testified that this injury could have had something to do with that condition (“injured the nerves that supply sensations to the bladder”). He confirmed Alexander’s statement that there was a noise in Alexander’s right leg. This seemed to be in the region of the hip, and if it had not existed before the injury occurred (as Alexander said), he was inclined to attribute it to the injury. His cross examination detracted little, if at all, from the testimony just stated. He testified that some employers did not require a physical examination. He testified: “Q. Now, you do not intend to leave the impression that this man will not be able to make a living in the future, do you ? A. No, sir. Q. You do think he'will be able to make a living, don’t you, Dr. Beazley? A. Yes, sir.” He had seen Alexander perhaps a dozen times since his first examination in May, 1943. He testified: “Q. * * * whether or not there will be improvement you are not in a position to say? Nor if so, how much? A. It is largely problematical. Q. And I believe you also said you were depending on his statement, principally, with reference to the trouble in the right hip? A. So far as pain is concerned.” He said that the fractures he had found had grown together (“very good”). The fall Alexander had had in 1939 could have had “considerable bearing” on Alexander’s trouble in his right hip (on redirect examination, when his attention was directed to evidence that Alexander had worked regularly since this 1939 injury, he gave it as his opinion that Alexander had fully recovered therefrom. The matter, in any event, was no defense to Alexander’s claim). He testified to treating Alexander for a disease which Alexander did not mention (but did not say when, nor that the disease was serious. The disease was not shown to have had any relation to the consequences of Alexander’s injuries, and from such evidence in the record, was immaterial to the injury, except on the issue of Alexander’s credibility, and on that issue, remotely). He said he had seen Alexander on one occasion since the injury of 1943, at Alexander’s house, when the latter was under the influence of intoxicating liquor — in contradiction of testimony of Alexander on direct examination to which we have not referred. He testified: “Q. And there is no reason why he shouldn’t do ordinary carpenter work now, is there, Doctor? A. No, sir.” He testified further on cross examination that Alexander had not paid him for his services. On redirect examination, Dr. Beazley made it plain that he considered Alexander permanently disabled to work and earn money except under unusual circumstances. He testified: “Q. * * * He (referring to Alexander) is uneducated further than the 8th grade in school; that is, he is not able to do any office work; dependent wholly on common labor work, which means physical exertion, working in industrial plants, and so forth, and so on, and their requirements, with which you are familiar. Now in view of that, do you think he is capable of obtaining and holding industrial employment of that nature, to make a living? A. He would have to be his own employer. On a farm, or other work * * * As was brought out here, a while ago, some companies do not require examination. * * * You might be * * * might go to one of those companies and -take him without an examination. * * * “Q. (Did he) think it would be safe at all for him (Alexander) to work in an industrial plant, handling machinery, or places where you have to do physical exertion, lifting or anything of that kind, or places •where you have to climb up on houses in carpenter work? A. He couldn’t do it a hundred percent, no, sir; he might make a shift at it, but he couldn’t do good work. It "would he dangerous to himself, as well as to those who were employed about him. “Q. I believe you have already testified that you wouldn’t pass him for industrial employment, yourself? A. That’s right. “Q. So, then, if he were able to make any living, he would have to figure him out a farm he could work on or something of that kind, and he his own employer, is that your testimony? A. Yes, sir. “Q. You think with the hip, for example, that the stiff knee and crooked knee, in the shape it is in, he can get up and plow up and down the field, and farm? A. -He would until that hip got to hurting him, and then he would quit. * * * “Q. And his capacity to obtain and retain employment has been, has it not, greatly diminished by this accident?. To say the least of it ? A. In his present con■dition, yes, sir. * * * “Q. * * * I believe you testified that this physical condition that you find him in now, after more than a year, is not likely to improve, but may grow worse? A. It is possible, yes, sir. * * * “Q. * * From your knowledge of this case, and this physical examination of the man and his condition now, is it probable that the condition may grow worse until he becomes totally incapacitated? A. I don’t think he will ever be totally incapacitated. You know, that means a whole lot, when you say total. “Q. Well, you mean bed-ridden when you use the term total, don’t you ? * * * A. Mighty near it. “Q. But I mean from the standpoint of obtaining and retaining employment of any kind to earn. * * * A. He is not going to get any better. * * * And the probabilities are that, as time goes on, and he gets older, he is going to suffer more from those injuries than he does now. “Q. Do you mean that from the standpoint of pain ? Or incapacity standpoint ? Or both? A. Both. “Q. You think those injuries will become more painful as he grows older? A. Yes, sir.” The only evidence which was offered in behalf of Insured to contradict this mass of testimony consisted of excerpts from a deposition of Alexander’s, taken. some five months before trial, and from a deposition of a Dr. Fowler who examined or treated Alexander for an injury in 1939 which was evidently that referred to by Alexander in his own testimony. There was nothing in these depositions to seriously detract from the showing of injury made by the evidence of Alexander and his witnesses. Alexander did testify on deposi-' tion to a somewhat higher hourly wage rate than he testified to on trial. He also said on deposition that he had received only one injury prior to that he had sustained on April 13, 1943, but this matter has been discussed. He also said on deposition that the worst of his trouble was through his back and hips and that the longest distance he walked was about “a quarter” (presumably a quarter of a mile, 440 yards, or about 4½ city blocks). On the face of such testimony, looking to the black and white of the record alone, •as we are compelled to do, it seems to us •that Insurer ought reasonably to have anticipated that the jury trying the Alexander case would, in all probability, assess Alexander’s damages at a sum substantially higher than the $5,000 limit of Insured’s policy. The testimony in behalf of Alexander is convincing. Dr. Beazley confirmed Alexander and Mrs. Alexander, and Beazley was not impeached; and it seems that if Alexander was entitled to any damages at all, he was entitled to heavy damages. (2) The Issu,e of Liability. We are thus brought to consider the record made on the issues which determine Insured’s liability in damages for Alexander’s injuries. The pleadings and the trial court’s charge which were filed in Alexander’s case need not be discussed. On the proof, the fundamental issues were simple and were limited to two questions, namely, (a) whether Alexander and his automobile were completely off, and a short distance beyond, the paved and main-traveled part of the highway, as he said, or were upon the pavement, in the right-hand traffic lane down which Insured’s bus was lawfully proceeding, as Insured said; and (b) whether the headlights and rear light or lights, upon Alexander’s automobile were burning brightly, as he said, or were not burning at all, as Insured said. The existence and solution of other questions of fact depended, in the first instance, on how the jury answered these two. Alexander’s proof relevant to these issues was -consistent in all material respects, and was adduced from witnesses who had an opportunity to be fully informed about the matters concerning which they testified, and who were not impeached except as the contradiction of them by Insured’s witnesses may be regarded as impeachment. Alexander’s witnesses were Alexander himself, his brother-in-law J. W. Lilley, Mrs. Lola Teel and Myrlen Creel, a boy some 16 or 17 years old who came upon the scene' of the injury shortly after the injury had occurred. The first three persons named were present in or about Alexander’s automobile when Alexander was hurt. The proof shows that four persons other than the first three witnesses named were riding with Alexander and were present when Alexander was injured, Alexander did not produce these witnesses nor account for their absence, but- they were not shown to be under his control and were as much subject to subpoena by one party to the case as by the other. Therefore no inferences are to be drawn in behalf of either party from the failure of these four persons to testify. The principal witnesses in behalf of Alexander on the issue of liability were J. W. Lilley and Alexander himself. It may be said regarding Alexander, and in some sense of Lilley, his brother-in-law, that they were interested witnesses; Mrs. Teel and Myrlen Creel were not. Alexander was injured between 11:00 and 12:00 o’clock on the night of April 13, 1943, at a point on the Kountze-Wood-ville highway some 12 or more, perhaps 17, miles from Kountze. Woodville was about 32 miles distant from Kountze. Alexander’s case was tried in the District Court of Hardin County. He was a resident of that county at the time he was hurt, and had been for many years before. His father also resided in that county. Alexander himself was employed when injured as a riveter in a Fort Worth aircraft plant and had returned home for a physical examination in response to an order of his draft board, as has been stated. His brother-in-law Lilley was (born in Hardin County, but said that he had been reared in Polk County and had resided most of his life in that county near the Hardin County line. He was about 21 years old when Alexander was hurt and was in service in the U. S. Navy, as he was when Alexander’s case was tried. Mrs. Lola Teel was a girl about 18 years old at the time Alexander was injured. When Alexander’s case was tried her family lived in Kountze, the County Seat of Hardin County, but she, herself, lived in the community of Votaw. Myrlen Creel resided with his grandfather, near the place where the bus struck Alexander, which seems to have been just inside or beyond the border of Hardin County. On April 12, 1943, the day before Alexander was hurt, J. W. Lilley went from his home in Polk County to visit his sister and brother-in-law at their residence some five miles from Silsbee on the Spurger road. Pie was on furlough at the time. He said that the next morning he drove Alexander’s automobile into Silsbee (Alexander remained at home), and spent -the morning calling on friends and acquaintances in that town. Alexander’s automobile was a 1936 model Ford Coupe. It carried only one seat for passengers, but the top of the rear compartment could be lifted and kept in place by a latch of some kind, and persons willing to do- so could ride in this compartment. Lilley said that he returned to Alexander’s residence about noon, and remained in company with his sister and brother-in-law until about 3:00 o’clock in the afternoon. Alexander’s brother Herman came in during this period, and at about 3:0'0 o’clock Lilley, Alexander and the said Herman departed from Alexander’s residence in Alexander’s automobile on a journey to Lilley’s home in Polk County. Lilley intended to remain there and his companions apparently intended to return home at once. Their route ran through Si-lsbee and Kountze, on out the Woodville highway to the Camp Seale road, where it left the highway. Alexander’s automobile leaked water (Alexander said that the water pump leaked; Lilley, the radiator), and Lilley said they stopped in Silsbee and put some water in the radiator. Then they proceeded on towards Kountze, but about three miles from Kountze the left rear tire blew out, and they were compelled to stop and remove this tire. They had no spare' tire and drove on into Kountze “on the rim” to a repair shop, where they left the tire to be repaired. Lilley seems to have driven the automobile to the place where the tire blew out, and Alexander, from that place to the repair shop in Kountze. Lil-ley thought that they arrived at this- shop about 4:30 o’clock in the afternoon (around 4:00 o’clock, according to Alexander). Because of other work, the operator of the shop was unable to complete the repairs upon their tire until late in the evening; Lilley said that they did not get the tire until about 11:00 o’clock that night; and they seem to have left Kountze immediately, or very shortly afterwards. The meanwhile they spent in Kountze, returning from time to' time to the repair shop to find out what was being done to their tire. Lilley said that they walked around, that they ate a sandwich, that they spent a considerable time near a small tent show. While they were in Kountze they met some acquaintances of Alexander’s, namely, Or-land Walters and his sister Lois Walters, and Johnny Moss and his sister Mrs. Lola Teel, and persuaded these people to accompany them during the ensuing drive to Lilley’s home and back. There are some conflicts in the testimony as to when and where and under what circumstances Lilley and his companions met these people and as to who invited them to accompany Lil-ley and his companions, but these inconsistencies are of little account. The circumstances were not calculated to impress such details on the memory of the act(?rs; and Lilley was not acquianted with the people he met, nor Mrs. Teel, with Lilley and his companions, before that evening. Alexander’s case was not tried until June, 1944, and after the lapse of such a time (over a year), differences of this 'sort among the witnesses ought reasonably to have been expected and for that reason, discounted. These seven people left Kountze about 11:00 o’clock at night in Alexander’s automobile and proceeded along the Woodville highway toward the Camp Scale road. Lilley, according to himself , and Alexander, was driving. He, Alexander and the latter’s brother Herman were in the front seat; the other four were in the reg.r compartment. After they had gone for some distance the engine began to overheat, for lack of the water which had leaked out of it, and they began to look for water along the road. They passed the entrance -to the Camp Seale road, apparently inadvertently, and continued for perhaps a mile without finding water. Then, at the suggestion of Alexander, they turned around and started back to a source of water which they had passed. As Lilley remembered, they stopped momentarily when they turned around, and Herman and Lois Walters changed places in the automobile. They drove back down the highway towards Kountze, passing the Camp Seale road again, and just after they did, the pedal on the floor of the automobile regulating the flow of gasoline into the motor became disconnected from some part of the machinery under the hood, and they were compelled to turn off the traveled part of the highway and stop. Alexander testified on deposition that the automobile was moved off the pavement by means of the-hand throttle. The highway at this point was paved, and the -pavement was some 18 or 20. feet wide, with a black line down the center; and the shoulders on either side of this pavement were rather wide and would carry an automobile ⅛ safety. These matters were undisputed. Lilley said that be stopped Alexander’s automobile — Ire had driven it from the time they left Kountze — at a place which was a good step, some three or four feet, from the pavement. The front of the vehicle was pointed towards Kountze, towards which they had been proceeding, and the vehicle was on the right side of the road. The headlights on the automobile were burning brightly. Lilley said that he remained at the wheel, that Alexander got out of the automobile and walked around to the left side, and that he raised the hood and stooped over to repair the mechanism which had become disconnected. To aid him, Johnny Moss, who had gotten out of the rear compartment, stood in front of the left headlight, so that his body would reflect {¡he light beneath the hood, and Lo'is Walters also got out of the automobile and stood near the front of the left front fender, between Moss and Alexander, watching Alexander’s actions. Lilley said that Alexander was standing on the ground, off the pavement. Lilley said that as they were in these positions, Alexander stooping over to repair 'his car, a short time after they had stopped, Insured’s bus came up behind them at high speed, Left the pavement, rolled on to the “gravel,” struck Alexander but not the automobile nor any one else and carried Alexander a distance of perhaps SO feet, and that Alexander finally fell off and- rolled “a little” on the shoulder of the road. He said that Alexander fell upon the shoulder on the right hand side of the road and did not fall upon the pavement. “Q. You were looking straight ahead at all times? or lin that direction? were you not ? A. I was until I heard the bus hit the gravel. It came off the edge of the concrete and you could hear it, and the roar of the bus caused me to look back. The bus was right behind us at the time and looked like it would hit the car. Q. Was the bus off the concrete? A. Yes, sir, the wheels next to us. I heard them hit the ground * * * the gravel.” The bus proceeded on down the road a short distance (Lilley thought, about 100 yards) and stopped. Lilley heard no horn sound at any time immediately before he heard the bus. He said that he got out of the automobile and ran to Alexander, and that Johnny Moss ran down to the bus. Alexander was unconscious at the moment, his clothes were torn and he was bleeding. Lilley and Herman straightened Alexander’s body. Lilley said that the driver of the bus came up to them. “I don’t know exactly what all was said, except I asked the driver what he meant by leaving the highway and hitting a man standing clear off on the dirt. He made no reply to that and told me to get an ambulance. Then I got in Riley’s (Alexander’s) car and went for the ambulance.” He said another time that he wanted to take Alexander to -the hospital in his automobile but that “they” wanted an ambulance; so he went to get one. The inference is that Lilley left very shortly «liter the bus struck Alexander. He said that he drove Alexander’s automobile to Kountze, using the hand throttle, and telephoned to Silsbee for an ambulance. He then proceeded on to Silsbee. The engine of the automobile became so hot that it would hardly run, and he stopped at a garage apparently on the outskirts of Silsbee and left the vehicle there. A stranger to whom he explained his plight carried him to Alexander’s wife, whom he informed of the incident and then took him and Mrs. Alexander to the hospital in Beaumont to which Alexander had in the meantime been conveyed. Lilley testified that the lights on Alexander’s automobile were burning brightly at the time Alexander was struck. The taillight was burning when they left Kountze, and it was burning when he went to the rear of the vehicle to lower the top of the rear compartment, preparatory to driving on to Kountze — and this was very shortly after Alexander was 'hurt. In the meantime, he said, no one had “bothered” the lights. This testimony is confirmed by Alexander, and Mrs. Alexander testified that the headlights were burning on the preceding night, when the}'- had gone “to the show.” Mrs. Teel, riding in the rear compartment, did not know whether the lights were burning at the time of the injury or not. Lilley said that the lights on the bus were burning and that the bus operator should have been able to see them. He said that the bus was moving at high speed, going very fast, when it hit Alexander. He said that he saw no car pass, in either' direction, while he sat in the stopped automobile, and that he would have seen one had it passed. • On cross examination, he testified: “Q. Immediately before the bus, immediately before you . heard this, isn’t it a fact that there was a car approaching, from your front, coming from in the direction of Kountze? A. No, sir. There was no car ahead. “Q. Meeting you? A. No, sir, no car meeting us.” Alexander said that one came by when or shortly before his own car stopped. Lilley testified further that he drank no beer or intoxicating liquor on the 13th, in Silsbee or Kountze, and that neither Herman nor Alexander drank anything in Kountze.. “ — I didn’t see them and I was with them. Q. Were you with Herman and Riley (Alexander) at all times while there, before you left? A. Yes, sir.” He said that he heard no one curse at the scene of the injury. Riley Alexander confirmed the testimony of Lilley, which we have just restat- ■ ed, in every material respect down to the time he was struck by the bus. Some of his testimony has been referred to. We need note here only this item of his testimony: “Q. . Was it raining or dry at that time? (referring to the time of the injury). A. It was dry.” Mrs. Lola Teel had failed to -take notice of many things and had forgotten many other matters; but she confirmed the testimony of Lilley and Alexander in one material respect. She was quite positive that Alexander’s automobile was stopped off the pavement, although she didn’t know how far it was from the pavement. This was a matter which she could hardly help knowing, since she said that she sat in the back of the automobile until Alexander “hollered” and then she jumped out and “went to see” what had happened. At that time, she said, Alexander was “way down the road.” She didn’t know of anyone in Alexander’s automobile having had anything to drink, and said that the bus didn’t hit the automobile and further, that only Alexander was struck by the bus. She said that Alexander (and not Lilley) was driving the automobile when she met them, apparently at or not long before the party left Kountze; this involves -some inconsistency with Lilley’s and Alexander’s testimony, but Mrs. Teel actually had no opportunity to see who was driving when they left Kountze — or, what is material— when the car stopped. She did not leave the vehicle until after Alexander was struck by the bus and her position in the rear compartment and the top of the compartment would seem to have interfered substantially with her view of the interior of the coupe, if the walls of the coupe did not. The foregoing statement constitutes Alexander’s proof in chief. He offered only one rebuttal witness, the boy Myrlen Creel, to whom we shall refer in due order. The evidence offered in behalf of Insured was adduced from five witnesses, the driver of the bus and 4 of the passengers. None of these people appear to have been residents of Hardin County, where the case was tried. Two of the passengers, Baxter and Dykes, were acquainted with ■the .four people who met Lilley' and his companions 'in Kountze. These two pasT sengers, Baxter and Dykes, sat in the front seats on the right hand side of the bus, while the other two, Stoker and Snowden sat on the opposite side of the bus, behind the driver but' near him. Whether their seats were together or were not is not clearly shown. It thus appears that, of the passengers, Baxter and Dykes were best situated to observe what happened, and as will hereinafter appear, the testimony of both men was seriously impeached. Further,, as will hereinafter appear, there was .confirmation of some material details of the driver’s statement in the testimony of the passengers but statements were made by some of these four passengers, and conflicts arose between these five witnesses of Insured’s, which affected the credibility of most of them and which, it may be believed, adversely affected the acceptability of the theory of facts propounded in behalf of Insured. As has been indicated, Insured’s and Alexander’s evidence relevant to the fundamental questions of fact was in flat conflict. The bus driver, John D. Boyett, was about 43 years old when Alexander was hurt. He had been employed by Insured for about two months before Alexander’s injury, and until employed by Insured had not driven a passenger bus. He had had experience, however, in the operation of trucks and of a school bus. Insured’s bus was proceeding from Luf-kin to Beaumont. It had passed through Woodville, and was on its way to Kountze. As the driver described it, the incident in which Alexander was injured resulted primarily from a .cause referred to rather often in the reports. The driver thought that this incident occurred about 11:45 at night. He testified: “A. Well, I was meeting a car. “Q. A car was coming to meet you? A. Yes, sir. * * * “Q. Right there had the car come and met you? got even with — the bus? or just passed the bus? A. Just passed the bus. Just as it passed I saw this car— “Q. Then what did you do? A. Well, I saw this car and it didn’t have any lights and I turned to pass it. To the left. I turned to the left to pass this car. “Q. What happened then ? A. I struck something * * * struck this man. “Q. He rode the fender or front part of your car down a piece? A. No, sir. “Q. Did he fall on the concrete or on the shoulder? A. Done so quick I couldn’t tell. “Q. When you went back, where was he? A. About 4 feet off the highway. “Q. Lying down? A. Yes, sir.” He testified further, under examination by Insured’s counsel: “Q. Is it true that the thing that kept you from seeing the parked car on the pavement before you did was some blinding lights approaching the car? A. Yes, sir. “Q. When those lights got out of your eyes, then you saw it? A. Yes, sir.” He thought that this occurred 16 or 17 miles from Woodville; anyhow, between 15 and 20 miles from that place. He said that the night was dark and dry. He did not refer to fog. He said that Alexander’s automobile was stopped and that it stood wholly on the pavement, but near the right hand edge of the pavement. He said further that this automobile showed no lights at all. He said that the bus had two head lights, that these were good lights, and that they were burning brightly at the time. He thought that the bus ran down the road about 125 feet after striking Alexander before he stopped it. He later moved it farther off the main traveled part of the road, and said that he put out flares. (Only one other witness, Baxter, referred to these flares. Myrlen Creel had no recollection of them.) He remained at the scene of the incident until the ambulance arrived and carried Alexander away. He took the names and addresses of his passengers and furnished them to Insured. He said that he made a report of the incident; he did not say to whom the report was addressed, but it was evidently made to Insured, his employer. As hereinabove stated, he thought (hat •the bus was about 8 feet wide and about 20 feet long, and that it would carry 22 passengers. He had never measured the length or width of this vehicle, however. The salient facts to which the driver testified were these, namely, (1) Alexander’s automobile was stopped on, the pavement, in the bus’ traffic lane, (2) at night, without lights, and (3) it was temporarily obscured from the driver’s view by the lights of the approaching automobile. There was some confirmation by the passengers of the driver’s testimony. Each of the four passengers agreed with the driver regarding Facts (1) and (2) and each of the four referred to an approaching car. However, only two, Baxter and Snowden, referred to the intensity of the lights' of the approaching automobile, which was the key element in Insured’s theory of the facts. The descriptions which the four passengers gave of the incident conflict in many respects; some of these conflicts were such as normally arise under circumstances like those attending the occurrence of the incident, but other conflicts are not to be explained on this ground and constitute, instead, matters adversely affecting ‘the acceptibility of Insured’s theory of the facts. We will state the passengers’ versions of how Alexander came to be injured. Baxter, a log scaler, was about 36 years old at the time of the incident. He testified: “I saw the car just before the bus hit it. There was another car coming, meeting the bus, just before the bus hit it.” He imagined that he was about 30 feet from it when he saw Alexander’s automobile. He said that the approaching car had its lights on and that these lights 'bothered him. Alexander’s automobile was “on the concrete” and he saw it just as the approaching car passed the bus. (On cross-examination, however, he testified, in effect, that the lights of the approaching car revealed Alexander’s automobile to him.) He said that no lights showed on Alexander’s automobile. When he saw that automobile in front of him, the bus turned to the left; before, it had been on its own side of the ■pavement. The bus struck Alexander practically in the middle of the highway, carried him down the highway “a little piece,” and then threw him off of the right hand side about 15 feet from the pavement. He said also that the bus hit the automobile on the left rear side and drove it down the road about 15 feet. He professed to have been the first person to leave the bus and that when he got back to the scene of the injury, this automobile had been put off the pavement. He said that immediately before this incident, the hood on the automobile and the top of the rear compartment were up, and the injured man was “standing there fixing it.” Dykes, a log cutter, was about 52 years old when the incident occurred. He testified: (a) “There was a car parked up on the pavement in this road, going in the same direction in which the bus was going, and it had no tail lights or head lights, and the night was very dark — and foggy, and he was right on. it, the bus was, before it was discovered.” (b) He said that another automobile met the bus just before he saw the car parked on the concrete. He saw this parked car after the approaching car passed the bus. “Q. And did the bus driver do anything to miss the car? A. He certainly did. He throwed the bus to the left.” (c) He said that there were no lights on the stopped automobile when he saw it (d) He said that it would be pretty hard to say just how close he was to Alexander’s car when he first saw it, “it being pretty dark, but it was pretty close.” He estimated the distance at 4-0 feet. He said the bus lights were good but “the fog was hurting the lights.” He observed no lights on Alexander’s automobile, (e) The stopped car was “over the black mark when the accident occurred.” When he got back to the scene of the injury, the sailor had moved it. He wouldn’t say that he had seen the bus hit the car, “but I am pretty certain that it did, because I felt the bus give a jolt, like that, like something catching. Q. You mean sideswiped it? A. That is all. It wasn’t a center lick at all.” (f) The injured person was standing, leaning over, when the bus sideswiped it. Dykes thought that this person was leaning inside the car door; the left door was open, and this person’s head was over the seat. Dykes didn’t see the hood up. (g) He was there when the sailor left for Kountze, and said that he never did see any lights on the car, tail lights or head lights. The next two passengers to whom we refer were on the opposite side of the bus, behind the driver. Stoker, a mechanic, was about 35 years old when the incident occurred. He testified: (a) “But the first of my noticing, there was a car coming, going towards * * * that is, the other way, you see, from the way we was coming. And after the car had passed, well, just seen kind of a bulk of something. Of course, it was dark, you know, and running into kind of waves of fog. * * * and by the time this car had passed that we was meeting, then that hulk of this other car that was up on the highway * * * the bus was so close on him until he had to whip out, you see. The bus was over, went around to the left, understand, and this 'car looked to me like it was right by or a little over the black mark of the road * * * the highway. And it drove it, drove on by. * * * And so after this bus had gone by the car, one or the other of us and me together * * * I asked, I told the bus driver myself, seemed to me like that hit somebody, maybe we had better stop and see about it. Just like that, and of course the bus driver, he had looked back at the time, you know. He, I figure, had felt the lick or heard it, or something. Well, we parked, and went back up there to where the accident occurred and there was a man lying on the ground there.” (b) The automobile that came, up like a bulge in front of him was “dead still” and “It was on the concrete.” It showed no lights at all. (c) The person who was struck was on the highway when witness first saw him, near the front of the stopped car, and bent over. The hood of the stopped car was up and the left door of the car was opened. It was a one seated car, and witness thought t