dissenting.
I respectfully dissent.
Initially appellants complain of the court’s denial of the motion to quash notice of deposition of Dr. Luis Gonzalez Rios and for a protective order in connection therewith. They further contend that the video tape testimony of Dr. Luis Gonzalez Rios was incompetent and erroneously admitted in evidence, over objection, and that Dr. *282Rios’ opinion testimony constituted inadmissible hearsay.
TEX.R.CIV.P. 215c (Vernon 1976) provides:
Rule 215c. Non-Stenographic Recording
Any party may cause the testimony and other available evidence at a deposition to be recorded by non-stenographic means, which term shall specifically include videotape recordings, without leave of court, and such non-stenographic recording may be presented at trial in lieu of reading from the written record of the deposition, subject to the following rules:
a. Any party intending to cause such non-stenographic recording shall give five days’ notice to all other parties by Certified Mail, Return Receipt Requested, and shall specify in said notice the type of non-stenographic recording which will be used.'
b. The expense of a non-stenographic recording shall not be taxed as costs, unless before the deposition is taken, the parties so agree, or the court so orders on motion and notice.
c. Any party shall have reasonable access to the original recording, and may obtain a duplicate copy at his own expense.
d. After such notice is given, any party may make a motion for relief under Rule 186b, and the court shall make such orders as are permitted under such rule, if the court finds that justice requires an order to be made. However, if a hearing is not obtained prior to the taking of the deposition, the non-stenographic recording shall be made subject to the court’s ruling at a later time.
e. The non-stenographic recording shall not dispense with the requirement of a written record of the deposition unless the court shall so order on motion and notice before the deposition is taken, and such order shall also make such provision concerning the manner of taking, preserving and filing the non-stenographic recording as may be necessary to assure that the recorded testimony will be intelligible, accurate and trustworthy. Such order shall not prevent any party from having a written record made at his own expense. In the event of an appeal, the non-stenographic recording shall be reduced to writing. [Emphasis added.]
There is nothing to indicate appellants requested a copy as permitted under Rule 215.
TEX.R.CIV.P. 212 (Vernon 1976) (repealed effective April 1, 1984) provided:
When a deposition shall have been filed in the court at least one entire day before the day on which the case is called for trial, no objections to the form thereof, or to the manner of taking the same, shall be heard, unless such objections are in writing and notice thereof is given to the opposite counsel before the trial commences.
The record before us shows that the deposition was filed at 4:40 p.m. on August 12, 1983, which was a Friday. Pursuant to TEX.R.CIV.P. 4, Saturdays and Sundays are excluded from the time computation. Therefore, the deposition was not on file one entire day before the day on which the case was called for trial and appellants were not required to file written objections to the manner and form of taking the deposition. But, the determination of whether the deposition should or should not be taken is within the sound discretion of the trial court; before the ruling of the court is set aside, clear abuse of discretion must be shown. Meyer v. Tunks, 360 S.W.2d 518, 522 (Tex.1962); Harris County v. Hunt, 388 S.W.2d 459, 467 (Tex.Civ.App.—Houston 1965, no writ); see also TEX.R.CIV.P. 186b & 215c (Vernon 1974). TEX.R.CIV.P. 201 (Vernon 1974) provides that the deposition may be taken in the county of the witness’s residence, or where he is employed or regularly transacts business in person. The 1984 amendments to Rule 201 preserved the above quoted provision. Moreover, TEX.REV.CIV.STAT.ANN. art. 6602(3)(c) authorizes a notary public to take acknowledgments or proof of instruments outside the physical limits of the United States and its territories. “The law in this regard is now sufficiently broad to permit *283a notary public of any nationality, wherever resident, to administer oaths and take affidavits for use in Texas.” Bishop, International Litigation in Texas: Obtaining Evidence in Foreign Countries, 19 HOUS.L.REV. 361, 391 (1982).
Appellants contend that the deposition was invalidated by the absence of Dr. Rios’ signature. Texas courts have held that the failure of the witness to sign the deposition will not affect its admissibility in evidence or justify suppression of the deposition, even when timely motion is made, unless the reasons for not signing impugn the verity or reliability of the deposition. Bell v. Linehan, 500 S.W.2d 228, 230 (Tex.Civ.App.—Texarkana 1973, writ ref’d n.r.e.); TEX.R.CIV.P. 209 (Vernon 1974). Thus, appellant has not shown an abuse of discretion by the trial court in denying the motion to quash notice of the deposition and the request for a protective order.
Appellants next assert that the opinion testimony of Dr. Rios that each plaintiff suffered from two herniated discs was inadmissible hearsay because the myelo-grams were not introduced into evidence. However, it is undisputed that appellants had notice of the time and place for the taking of the deposition at issue. The reason given for appellants’ failure to attend the deposition was that their counsel was engaged in strike duties; appellants also stated that they intentionally did not attend the deposition so as not to waive their jurisdictional question. Therefore, appellants had the opportunity to cross-examine the deposed witness but elected not to attend the taking of the deposition. In so doing, they waived the right to object to the admission of such testimony. Morehouse v. Brink, 647 S.W.2d 712, 715 (Tex.Civ.App.—Corpus Christi 1982, no writ).
In Heldt Brothers Trucks v. Silva, 464 S.W.2d 931, 937 (Tex.Civ.App.—Corpus Christi 1971, no writ), the court stated:
The right to cross-examination of witnesses by a party in a lawsuit is a valuable and substantial right, and it cannot be denied in the instant case but that the circumstances have, in effect, denied that right to appellants in respect to a material matter that has vitally affected them. They, through no fault of their own, have not been accorded an opportunity to exercise such right, in accordance with the rules governing cross-examination generally. [Emphasis added.]
Thus, the evidence becomes hearsay and inadmissible only when the adverse party is not accorded an opportunity to cross-examine. Consider Avila v. United States Fidelity & Guaranty Co., 551 S.W.2d 453, 457 (Tex.Civ.App.—San Antonio 1977, writ ref’d n.r.e.), cited by appellants, where this court concluded that the trial court erroneously admitted into evidence, over objection, a doctor’s testimony pertaining to x-rays which were not admitted in evidence, and stated:
(1) [Pjlaintiff or his attorney had no opportunity to properly cross examine the witness because of the absence of such X-rays; (2) the X-rays were not sufficiently proved up in that there is (a) no positive evidence as to who made the X-rays; (b) that they were taken by a qualified technician or doctor; (c) that they correctly portrayed what they purported to represent; (d) that such X-rays actually portrayed the portion of the body where the injury was involved. [Emphasis added.]
In this case the myelograms were available at the time the deposition was taken and at trial. Appellants were not present at the time the deposition was taken, so we cannot conclude that appellants were not accorded an opportunity to cross-examine. Moreover, the myelograms were taken by Dr. Rios and the radiologist; they actually portrayed the portion of the body where the injury was involved, i.e., the herniated discs; and the myelograms were made and kept in the regular course of business by Dr. Rios. Accordingly, I would overrule points of error 1, 2, 4, 5A and 5B.
Appellants next assail the denial of the motions for continuance. Specifically, the basis for seeking a continuance was to prepare rebuttal testimony to Dr. Rios’ deposition, to retain an expert to testify, *284and for additional time to locate co-defendant Garza. The first motion for continuance does not even allege the use of due diligence in locating Garza or securing the testimony of expert witnesses. The alternative motion for continuance does contain a statement that defendants have not failed to use due diligence, but does not allege what due diligence, if any, was taken. Neither instrument states what was expected to be proved by the' absent witness or testimony.
The decision to grant or deny a motion for continuance because of the absence of a party to the suit, for an inadequate time to prepare for trial, or for inability to obtain the services of an expert witness are matters addressed to the sound discretion of the trial judge. Gibraltar Savings Association v. Franklin Savings Association, 617 S.W.2d 322, 327 (Tex.Civ.App.—Austin 1981, writ ref'd n.r.e.); Green v. State, 589 S.W.2d 160, 163 (Tex.Civ.App.—Tyler 1979, no writ); TEX.R.CIV.P. 252. That appellants took appellee Serrato’s deposition on June 9, 1983, and knew at that time that Dr. Rios was the treating physician was not disputed; in fact, it was alluded to during the cross-examination of Mrs. Serra-to. The foreknowledge of Dr. Rios’ involvement for a period of more than two months before trial date is relevant to the question of whether appellants exercised due diligence. Appellants served no interrogatories on Dr. Rios or appellees; their pre-trial discovery was limited to the depositions of the claimants. Appellants’ statement that they did not fail to use due diligence is clearly insufficient to satisfy the requirement of Rule 252, supra. The motion for continuance must allege that the movant has used due diligence, stating what diligence was used and the cause of failure if known. Ray v. Ray, 542 S.W.2d 209, 212 (Tex.Civ.App.—Tyler 1976, no writ).
The lead counsel’s preoccupation with the telephone workers’ strike does not excuse the failure to conduct pre-trial discovery, to act with due diligence, or to prepare for trial. The record shows that co-counsel took appellee’s deposition, and local counsel announced ready for trial. A question is raised concerning the denial of the motion to withdraw as counsel for Garza. The record shows that appellant admitted that Garza at the time of the accident was acting in the course of his employment and in furtherance of Southwestern Bell Telephone Company’s business, “on his way to a service call.” Thus, there was no conflict of interest between the two co-defendants and the motion to withdraw was properly denied. Moreover, the deposition of Garza was read into the record. The trial court did not err in denying the motions for continuance. I would overrule appellants’ third point of error.
In points of error 6, 7, 9, 10 and 12, appellants challenge the sufficiency of the evidence to support the following awards of damages: (1) past and future pain and suffering; (2) past and future mental anguish; (3) loss of earnings and loss of earning capacity; (4) past and future physical impairment; and (5) past and future medical expenses. The amount of the awards are alleged to be excessive. In determining a factual insufficiency of the evidence question we are required to consider and weigh all the evidence in the case and set aside the judgment if we conclude that the judgment is clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). In this case there were no findings of fact or conclusions of law requested or filed; consequently, the trial court judgment implies all necessary fact-finding in support of its judgment. Buchanan v. Byrd, 519 S.W.2d 841, 842 (Tex.1975). In reviewing the record to determine if there is any evidence supporting the judgment and its implied finding, it is proper to consider only the evidence favorable to the issue and disregard all evidence or inferences to the contrary. Goodyear Tire & Rubber Co. v. Jefferson Construction Co., 565 S.W.2d 916, 918 (Tex.1978). When findings of fact and conclusions of law are not requested or filed, the judgment must be affirmed if it can be upheld on any theory that finds *285support in the evidence. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977).
Therefore, pursuant to the enunciated standard of review, we consider only the evidence favorable to the judgment and disregard all evidence or inferences to the contrary. The record evidence shows that Mrs. Serrato suffered severe painful and permanent injuries. Conservative treatment was tried following a CAT-scan examination at the Methodist Hospital in San Antonio, but the pain and disability was not alleviated. The myelogram examination indicated that she had a herniated disc in the cervical area. It was stated that she was totally disabled from performing the customary task of a workman and could not do any lifting, bending, stooping or sewing. There is direct evidence that she had pain and suffering since the date of the accident, and in all probability would have pain and suffering in the future. Mrs. Serrato testified that prior to the accident she had been working at two jobs, that she had done all her own house and yard work, and that she had planned to give her children an education. She further testified that since the accident she has been unable to do any work, even household chores, and is unable to support herself and her children. The pain and suffering produced anxiety and mental anguish in the past that will continue in the future. Her future working capacity was said to be significantly affected; therefore, her future earning capacity was impaired. Her past medical expenses were fully proven. Dr. Rios testified that in reasonable medical probability her future medical expenses would be $2,000 to $3,000 a month. At the time of the accident, Mrs. Serrato was a foreman at a sewing factory. Her loss of past wages and future earning capacity were established.
Ms. Gutierrez was employed as a manual laborer, working in the field for her father. She was a passenger in the vehicle driven by Mrs. Serrato at the time of the accident. The evidence established that she suffered severe headaches and pain of the lumbar spine and both sacroiliac joints, and had a marked paravertebral muscle spasm which was described as an objective indication of injury. A CAT-scan examination at the Methodist Hospital in San Antonio gave some indication that the disc was out of place. Conservative treatment followed, but Gutierrez continued to complain of pain. A myelogram examination was performed which showed her to have two herniated discs. There is evidence that she suffered pain since the date of the accident and in all probability will suffer pain in the future; the pain and suffering caused her to have fear and anxiety in the past which will continue in the future. Gutierrez testified that prior to the accident she had done field work for her father and had helped her mother with housework, but that as a result of the accident she is unable to work at all and must depend on her parents for support. This established the mental anguish in the past and in the future. The medical doctor testified that she was totally disabled from performing any labor and that her future working capacity was impaired. The medical and hospital expenses were detailed and it was estimated that in reasonable medical probability her future medical expenses would be at least four thousand dollars per year for the rest of her life. Her past wages were established and the testimony as to future pain and suffering, future mental anguish, future physical impairment, and future medical treatment for the rest of her life indicated a loss of earning capacity.
The prevailing rule in Texas is that past and future physical pain and mental anguish may be implied from the nature of the collision, the injuries and the treatment by the doctors. Kingham Messenger & Delivery Service, Inc. v. Daniels, 435 S.W.2d 270, 273 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ); Austin Road Co. v. Thompson, 275 S.W.2d 521, 528 (Tex.Civ.App.—Fort Worth 1955, writ ref’d n.r.e.). Generally, appellate courts have approved recovery for future physical pain, suffering and mental anguish where the evidence shows that there is a reasonable probability of such consequences. Verhalen v. Nash, 330 S.W.2d 676, 680 (Tex.Civ. *286App.—Texarkana 1959, writ ref’d n.r.e.). This court cannot pass on the credibility of witnesses and weight to be given testimony concerning future pain, suffering and mental anguish. Kingham Messenger & Delivery Service, Inc. v. Daniels, supra, at 273. Having reviewed the whole record we conclude that there is sufficient evidence to support the award to both appellees as to past and future pain and suffering, past and future mental anguish, loss of earnings and loss of earning capacity, past and future physical impairment, and past and future medical expenses.
Appellants contend that each and every specific award of damages was grossly excessive. The complainant has the burden of showing that the damages awarded were excessive. City of Austin v. Setter, 415 S.W.2d 489, 502 (Tex.Civ.App.—Austin 1967, writ ref’d n.r.e.). In Hammond v. Stridden, 498 S.W.2d 356, 363 (Tex.Civ.App.—Tyler 1973, writ ref’d n.r.e.), the court reiterated the rule in this regard, stating, viz:
In determining whether a verdict is ‘excessive’ the courts must review only that evidence favorable to the award, and the findings of the jury thereon will not be disturbed on ground of ‘excessiveness’ if there is any evidence to sustain the award; they will not merely interfere and substitute their judgments, nor is it material that the courts might have awarded a lesser sum as fact finders; there must be some circumstantial indication of bias or prejudice; matters of pain, suffering, and general damages are peculiarly within the discretion of the jury; and in the absence of an affirmative showing of bias or prejudice the courts of civil appeals will give every intendment to the evidence supporting the verdict. [Emphasis added.]
The trier of fact has large discretion in fixing the amount of the award since personal injury damages are regarded as un-liquidated and cannot be measured by any certain standard. Allied Stores of Texas, Inc. v. McClure, 622 S.W.2d 618, 619 (Tex. App.—Tyler 1981, no writ); Phillips Petroleum Co. v. Burkett, 337 S.W.2d 856, 859 (Tex.Civ.App.—Fort Worth 1960, writ ref’d n.r.e.). In this case appellants failed to discharge their burden of proof by showing that the award of damages complained of was the result of passion, prejudice or corruption, or that certain evidence was disregarded. Therefore, the award of damages as specified in the trial court judgment is conclusive; I would overrule points of error 6, 7, 9,10 and 12.
The allegation that the award of damages for past and future mental anguish constitutes a double recovery of the damages for pain and suffering and, further, that the award of damages for past and future physical impairment is in effect a double recovery for the damages of loss of earnings, earning capacity and pain and suffering are raised in points of error 8 and 11. The judgment of the court specified each element of damages based upon the evidence. The dominating diagnosis, as a result of the myelogram examination, was that both Mrs. Serrato and Mrs. Gutierrez suffered herniated discs. It was established that they had suffered pain since the date of the accident, and that, in all probability, they would continue to suffer for the rest of their lives. Mental anguish may be implied from the nature of the injuries accompanied by physical pain, even without direct proof of either existence or cause. Applebaum v. Michaels, 384 S.W.2d 148, 152 (Tex.Civ.App.—Texarkana 1964, writ ref’d n.r.e.). This argument of double recovery would require a showing that the trial court did not consider the effects of the injuries separately. There is authority for holding that physical impairment is a separate and distinct element of damages from loss of earning capacity. Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880, 883 (Tex.1948); Southwestern Bell Telephone Co. v. Ferris, 89 S.W.2d 229, 233 (Tex.Civ.App.—Dallas 1935, writ dism’d); see also Allen v. Whisenhunt, 603 S.W.2d 242, 244 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ dism’d). Thus, the mental anguish", pain and suffering, physical impairment and loss of earnings were *287each established by the evidence to produce a separate and distinct substantial loss for which adequate compensation was necessary. I would overrule points of error 8 and 11.
In the final two assignments of error appellants complain of plaintiffs’ ex parte communication with the court and urge that the cause should be reversed because of the alleged cumulative trial court errors. The general rule is that where the trial court, in a bench trial, receives inadmissible evidence, there is a presumption that the judgment is founded on the competent testimony in the record and that the trial judge as the fact finder did not consider the incompetent evidence. Victory v. State, 158 S.W.2d 760, 765 (Tex.1942); Casey v. Western Oil & Gas, Inc., 611 S.W.2d 676, 680 (Tex.Civ.App.—Eastland 1980, writ ref’d n.r.e.). It is undisputed that this case was called for trial at 9:00 a.m. on August 15, 1983, and that the trial court waited for the appearance of appellants’ counsel, who did not arrive until 3:30 p.m. The court within its prerogative could have given due consideration to a default judgment in view of the absence of appellants’ counsel, but the court’s remarks clearly imply that he would require evidence to prove liability and the damages. There is no evidence in this record to show that the trial judge was influenced by the ex parte communication. Points of error 13 and 14 should be overruled.
I would affirm the judgment of the trial court.