*1 parties contract between there was no to deliver

requiring plaintiffs In addi which Molsen demanded.

cotton held there was no

tion, Court the Amarillo theory contract

evidence breach Molsen. subsequent

awith it was not their

parties evi open. This price to leave the

intention open of an the formation prevented

dence of the first contract because term

price Ann. Tex.Bus. & Comm.Code

sentence 2.305(a).

Here, alleged the breach pleadings the evi- contract and price term open finding of the implied justified

dence to enter parties intended

Court pro- covering the entire

binding agreement being open priced. portion awith

duction point on “no evidence” Appellant’s 23 is overruled.

Subsection is affirmed. the trial Court EMPLOYERS’ INSURANCE

TEXAS

ASSOCIATION, Appellant, NELSON, Appellee. E.

No. 8621. Texas, Appeals

Court of Civil Amarillo. 20, 1976.

Jan.

Rehearing Denied Feb.

Ann.Civ.St., but where the result ing the use of a therefrom limited to holding applied specific member. This v. Brown Transamerica Insurance Com (Tex.Civ.App. Tyler 416 S.W.2d 902 pany, — 1967, writ) Liberty no and Prewitt v. Mutu Company, al 1970, writ n. r. (Tex.Civ.App. ref’d —Waco of the use of an arm is an The loss injury specific compensation for which provided by Art. V.A.C.S. Section Sutton, Underwood, Wilson, Berry, Stein therefore consider whether the evidence We Johnson, (R. Wilson), Amaril- Amarillo A. & support us is the case before sufficient lo, appellant. for finding resulting the disability Amarillo, Hazlewood, appellee. for injury from Nelson’s shoulder is not limited of use of his arm. to loss ROBINSON, Justice. March, 1974, Nelson, carpenter, a suf- In compen- shoulder, Nelson seeks workmen’s injury Jack E. as well as fered the on-the-job injury to his shoul- per- for an injuries sation which did not result other court, jury, a sitting trial without disability. Hyde, orthope- The Dr. der. manent on judgment for Nelson based rendered who attended him at the time surgeon dic findings general permanent of injury, testified that he found an of the disability. Employers’ Texas Insur- glenoid partial linear fracture undisplaced carrier, Association, ap- the insurance right scapula. Hyde expect- ance Dr. area of the does not contending that the evidence peals recovery to have a normal ed Nelson express finding 9, 1974, the trial court’s X-rays August on testified disability is not confined abnormality that Nelson’s of and no disclosed arm. Affirmed. abnormality except kind a well healed fracture. company relies on the hold The insurance orthopedic Ralph Dr. Casualty Surety Company surgeon, Aetna Another ing in Moore, (Tex.1962). on saw Nelson December Moore, a medical witness testified that Dr. Citron testified examination a by involving the workman was a healed fracture only injury suffered revealed scapula, with on the interior surface bone or some distor- chip fracture shoulder small tilting and some of the parts socket of the workman’s glenoid tion fossa, part would affect the use of his the shoulder bone glenoid shoulder not affect other articulates with the arm bone. He only and would arm body. expert Another medical fracture line went testified part an of the acromion and the through also suffered the base workman thing depressed. became somewhat part the lower back. whole injury to (cid:127) the evidence means that shoulder blade was Supreme Court found This concerning He testified that the bo- question tilted downward. a fact raised on injury, to the shoulder disability, opposed ney prominence as larger boney than a similar and held that to be to the seemed recov on the left shoulder. He said Compensation prominence Act limits Workmen’s because the shoulder was injury when the that was specific to a ery prominence was in the correct specific member enumerat lower. not to itself is Vernon’s the rest was not. The place, Article ed in Section against tinuing to labor to Dr. great weight preponder- inability use the arm ance of evidence as to be clearly wrong. Citron The motion of position. the overhead trial court is af- abduction, except firmed. the side bringing the arm out to *3 overhead, which was limited about and ON MOTION FOR REHEARING that degrees. This limitation means bring was able to his arm much Nelson not motion for rehearing, insur On angle sideways posi- in the beyond right workman, ance carrier contends that tion. Nelson, judicially admitted only his Nelson removed shirt in the court- disability in the use of his arm. The judge and the trial observed the room relies on following insurance carrier A photograph dition shoulder. testimony of Nelson on cross-examination: shoulders is evidence. Nelson’s Now, Q. deposition in the that we took Nelson that because of his from Dr. says last week he to us, perform 8, says to his duties to longer Page your was no able he us that he carpenter continuing went to work at a re- trouble is you as a that are wage place your school custodian on Octo- duced as a unable to arm in the over- 30, that problems position; 1974. In addition to the head ber true state- arm, attempt to use his which involve his ment? testified that his shoulder would Nelson A. Yes sir. way it was weak and also that

give because Q. says you He also that are—the con- carry things on his required he was tinuing impairment, physical impair- carpentering, the course ment he you detects with is in carry right now unable to them on his arm; your use that ability shoulder. a fair also statement? testimony injured party A. Yes sir. of a witness may outweigh that medical questions quoted reasonably can be in- problem not with who is confronted terpreted inquire the carrier’s generally living with the who is correctly attorney stating Dr. Citron’s injured in as as the not deposition testimony. If Nelson so inter- disabling effects party to evaluate questions, preted his affirmative an- disability may be thereof. The issue concerning could swers not be admissions alone, this claimant by the established he, extent of him- may be though testimony is true even self, event, experienced. we do not Con by medical witnesses. contradicted quoted testimony believe would Henson, 388 Indemnity Company v. necticut to an admission that amount Nelson’s (Tex.Civ.App.—Houston S.W.2d continuing especial- was to his trouble Compa writ). Travelers Insurance prior concerning view of ly testimony Wade, (Tex.Civ.App.— ny v. experiencing which he was problems ref’d n. writ r. Dallas opinion of his shoulder. We are use quoted statement not meet does was some We conclude Superior the standard set out Griffin v. not evidence that Company, 161 Tex. issue arm which raised an (1960), that statement Aft by the trier of fact. for determination evidence, including upon judicial as a be delib- relied admission considering all er clear, erate, unequivocal. con finding, court’s we opposed to the rehearing not so finding was is overruled. the court’s clude