The jury verdict is, in practical effect, a finding that the statement was true and we cannot disturb that finding. Fidelity Casualty Co. v. Maryland Casualty Co., 151 S.W.2d 230, 232 (Tex.Civ.App.-San Antonio 1941, no writ). Points of error one, two and three are overruled. The second question before us, raised by Hamby's fourth point of error, is whether Palmer is entitled to recover attorney's fees in the county court. Palmer represented himself in the justice court and did not seek attorney's fees in his pleadings.
In order to determine whether such an allegation can be entertained, we must first determine the correctness of the trial court's entering judgment for appellee on the basis of the verdict, for the findings of the jury in the verdict will conclusively establish the basis of the judgment unless and until a successful and direct attack is made on such findings based on the insufficiency of the evidence supporting them. Rules 300 and 301, Texas Rules of Civil Procedure; Ardoin v. Walker, 466 S.W.2d 595 (Tex.Civ.App., Houston (14th) 1971, n.w.h.); Fidelity Casualty Company of New York v. Maryland Casualty Company, 151 S.W.2d 230 (Tex.Civ.App., San Antonio, 1941, n.w.h.). Because appellant's points of error all relate to a determination of the correctness of the trial court's action in granting appellee's motion for judgment on the verdict, they will be answered in the discussion of the relationship between the verdict and the judgment rendered in the court below.
Therefore, this appeal as it reaches this court does not question the correctness of the jury's findings that Wagner was not negligent and such findings of fact must be regarded as conclusive upon the parties and are binding upon this court. Angelina County v. Kent, 374 S.W.2d 313 (Tex.Civ.App., Beaumont, 1963, n.w.h.); Old Colony Insurance Company v. Messer, 328 S.W.2d 335 (Tex.Civ.App., Beaumont, 1959, writ ref., n.r.e.); Hann v. Life & Casualty Insurance Company of Tennessee, 312 S.W.2d 261 (Tex.Civ.App., San Antonio, 1958, n.w.h.); Service Life Insurance Company v. Miller, 271 S.W.2d 301 (Tex.Civ.App., Fort Worth, 1954, writ ref., n.r.e.); Fidelity & Casualty Co. of New York v. Maryland Casualty Co., 151 S.W.2d 230 (Tex.Civ.App., San Antonio, 1941 n.w.h); Rule 451, Texas Rules of Civil Procedure. When a trial court has entered judgment notwithstanding the verdict and the appellate court concludes that this was error, it must reverse the judgment of the trial court and enter judgment in harmony with verdict unless appellee presents by cross-points grounds sufficient to vitiate the jury's verdict or to prevent an affirmance of the judgment had one been entered on the verdict.
No attack is made upon this finding: it, therefore, must be regarded as conclusive upon the parties. Fidelity Cas. Co. v. Maryland Cas. Co., Tex.Civ.App., 151 S.W.2d 230. In addition, the record indicates there were at the date of the contract, May 12, 1958, available funds in the county hospital budget for the year amounts substantially more than sufficient to take care of the debt.
(Italics ours.) Edmiston v. T. N. O. R. Co., 135 Tex. 67, 138 S.W.2d 526; Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970; Fidelity Casualty Co. of New York v. Maryland Casualty Co., Tex. Civ. App. 151 S.W.2d 230; Johnson v. Stickney, Tex. Civ. App. 152 S.W.2d 921. After a careful reading of the entire record we are not prepared to say that the special issues do not find support in the evidence.
No attack is here made by assignment of error upon the sufficiency of the evidence to support the findings of the jury under Subdivision 1, and consequently this court is conclusively bound by such findings. Fidelity Casualty Co. v. Maryland Casualty Co., Tex. Civ. App. 151 S.W.2d 230. It is well settled that the burden is upon the claimant in a compensation case to show by competent evidence that it is impracticable to compute the average weekly wage under Subdivision 1, Section 1 of said Article 8309, before resort can be had to Subdivisions 2 or 3 thereof.