Ordinarily, whether a claimant has used that degree of diligence is a question of fact to be determined by a jury or trial judge. Texas Employers' Ins. Ass'n v. McDonald, Tex.Civ.App., 238 S.W.2d 817, writ refused. However, the evidence in a particular case may lead to lack of diligence as the only reasonable conclusion, in which event the question is to be decided as a matter of law.

Where the question is whether a party has acted prudently, wisely or in good faith, the information on which he acted, whether true or false, is original and material evidence, and not hearsay. See also, Texas Employers' Insurance Association v. McDonald, 238 S.W.2d 817, 820 (Tex.Civ.App.-Austin 1951, writ ref'd). Notwithstanding this rule, the court of appeals held the LAN report inadmissible, stating that "[e]ven though the court admitted [it] for a limited purpose, it encompassed many facets of the case which were in issue and on which appellant was entitled to cross-examine."

'" See also Globe Discount City v. Landry, 590 S.W.2d 813, 815 (Tex.Civ.App.-Waco 1979, writ ref'd n.r.e.); Allstate Insurance Company v. Godwin, 426 S.W.2d 652, 654 (Tex.Civ.App.-Houston (1st Dist.) 1968, no writ); Texas Employers' Ins. Ass'n v. McDonald, 238 S.W.2d 817, 820 (Tex.Civ.App.-Austin 1951, writ ref'd). Just as the excluded testimony in McAfee was not hearsay and was relevant and material evidence on the issue of whether McAfee acted negligently on that occasion and therefore was competent evidence, so also in the instant case, we hold the excluded testimony of Cumbie and Folkner is not hearsay and is material and relevant on the issue of whether Western Company's employees acted negligently on this occasion.

"Where the question is whether a party has acted prudently, wisely or in good faith, the information on which he acted, whether true or false, is original and material evidence, and not hearsay." Appellees also cite Allstate Insurance Co. v. Godwin, 426 S.W.2d 652 (Tex.Civ.App.-Houston (1st Dist.) 1968, no writ) and T.E.I.A. v. McDonald, 238 S.W.2d 817 (Tex.Civ.App.-Austin 1951, writ ref'd) in support of their contention. We have reviewed the cases cited by appellees in support of their contention and can find none where a written report was admitted for this purpose and certainly none as comprehensive as the Lockwood, Andrews and Newnam report.

In such a case the deposition testimony of Ms. Carpenter was admissible. Where the question is whether a party has acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence, and not hearsay. McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442; Allstate Ins. Co. v. Godwin, Tex.Civ.App. (1 Houston) NWH, 426 S.W.2d 652; Texas Employers Ins. Assn. v. McDonald, Tex.Civ.App. (Austin) Er.Ref., 238 S.W.2d 817. Ms. Schulze testified to the jury that Ms. Durmon, the cashier, stated in the interrogation room that she asked plaintiff at the checkout if the sweater was hers and plaintiff said yes. Plaintiff testified that Ms. Durmon did not ask her about the sweater at the checkout, and that she had never admitted that she had been asked about the sweater.

In McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442 (1941), the rule is quoted from Jones on Evidence, Civil Cases, 3rd Edition, Sec. 330: "Where the question is whether a party has acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence, and not hearsay." On the same `good cause' point involved in the instant case, the rule as stated in McAfee v. Travis Gas Corporation, supra, was applied in Texas Employers' Insurance Association v. McDonald, 238 S.W.2d 817 (Austin Civ.App. 1951, writ ref.). The court held that it was not necessary to discuss the proof of agency, because `the inquiry before the jury was: Did appellee exercise ordinary prudence in filing his claim for compensation? This inquiry involved what appellee did, and on what information (whether it was true or false) he acted.

Fidelity and Casualty Co. of New York v. Ener, Tex.Civ.App., 97 S.W.2d 267, n.w.h. See also Texas Employers' Ins. Association v. McDonald, Tex.Civ.App., 238 S.W.2d 817, writ ref.; and Texas Employers' Ins. Ass'n v. Crain, Tex.Civ.App., 259 S.W.2d 905, n.r.e. However, we are of the view that there was no evidence of probative force to the answer to Special Issue No. 13, that this constituted good cause up until the claim was actually filed, keeping in mind what we have above noted concerning the theory of the date of January 12.

As such it is not excluded under the hearsay rule but is admissible as a verbal act.' Loetsch v. New York City Omnibus Corp., 291 N.Y. 308, 52 N.E.2d 448. See also McCormick on Evidence 465 — 466; Texas Employers' Insurance Ass'n v. McDonald, Tex.Civ.App., 238 S.W.2d 817; McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442; VI Wigmore, Evidence, (3rd Ed.), Sec. 1790; Hooper-Holmes Bureau, Inc. v. Bunn, 5 Cir., 161 F.2d 102, and Callen v. Gill, 7 N.J. 312, 81 A.2d 495. The court erred in excluding said testimony because it tended to show facts from which the jury probably would have concluded that appellees' losses were, because thereof, less than they otherwise would have been.

The test of good cause is whether the claimant acted as a reasonably prudent person would have acted in not filing her claim until it was actually filed. Texas Cas. Ins. Co. v. Beasley, 391 S.W.2d 33 (Tex.Sup.); Texas Emp. Ins. Ass'n v. McDonald, 238 S.W.2d 817 (Tex.Civ.App.), writ ref. Although this question is usually one of fact, the evidence in a particular case may point to a lack of diligence on the part of claimant as the only reasonable conclusion, and this then becomes a question to be decided as a matter of law. Texas Emp. Ins. Ass'n v. Brantley, 402 S.W.2d 140 (Tex.Sup.); Texas Cas. Ins. Co. v. Beasley, supra.

His testimony in this respect, corroborated by his wife and stepdaughter, was believed by the jury which found in his favor on the 'good cause' issue. Texas Employers' Ins. Ass'n v. McDonald, 238 S.W.2d 817 (Civ.App., wr. ref.). The offer in settlement was a further, persuasive circumstance bearing on this issue.