author: NYE, Justice.

text:
    COCA COLA BOTTLING COMPANY, Appellant, v. H. M. MITCHELL, Appellee.
    No. 271.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 28, 1967.
    Rehearing Denied Jan. 25, 1968.

      Thomas G. Sharpe, Jr., of Hardy & Sharpe, Brownsville, for appellant.
    Gordon L. Briscoe, of Carter, Stiern-berg, Skaggs & Koppel, Harlingen, for ap-pellee.
   OPINION

NYE, Justice.

The plaintiff H. M. Mitchell, filed suit against the Coca Cola Bottling Company for personal injuries resulting from the ingestion of glass when he drank a bottle of Coca Cola in Harlingen, Texas. The case was tried before the court and jury, resulting in a judgment for the plaintiff. Defendant Coca Cola Bottling Company perfects its appeal.

Plaintiff alleged that while drinking one of appellant’s Cokes at his place of work he felt an unusual pain in his throat. He gagged and coughed, and in so doing discovered that the bottle from which he had been drinking contained glass particles, some of which he had swallowed. Plaintiff further alleged that immediately following his drinking from this bottle he coughed up several pieces of glass, and that as a result of having swallowed these particles of glass, plaintiff suffered severe and permanent damage to his throat.

The case was submitted to the jury on special issues after a rather lengthy trial. In response to these issues, the jury found that plaintiff Mitchell sustained personal injuries as a proximate result of having swallowed particles of glass contained in a bottle of Coca Cola bottled by the appellant and delivered by them to plaintiff’s place of employment. The jury further found that the bottle of Coca Cola in question contained the particles of glass at the time it was delivered to Mitchell’s place of employment, and that such particles of glass rendered the Coca Cola unfit for human consumption. These findings by the jury are supported by evidence and the appellant does not attack these findings in any points of error. The jury awarded Mitchell $3300.00 to compensate him for physical pain and mental suffering from the date of the accident to the time of trial; $3,000.00 for future pain and mental anguish; $136.-00 for doctor bills and $2,400.00 for future medical expenses.

Appellant’s point of error No. 2 complains that the trial court erred in allowing Dr. M. P. Palmer to testify for the plaintiff. This the appellant claims, came as a surprise, because the witness had not been previously disclosed by the plaintiff pursuant to an interrogatory inquiring of what doctors the plaintiff had seen since the date of the accident. The defendant by written interrogatories on May 14, 1965 inquired of the plaintiff, among other things as to: “Any of the doctors you have seen since August 8, 1963 in regard to the injury you claim you sustained on August 8, 1963? Give the names and addresses ?’r The plaintiff answered the interrogatory a few days later naming Dr. E. G. Ashcraft and Dr. T. G. LaMotte, giving their addresses. These were the only doctors the plaintiff had seen at the time the interrogatories were served upon him. On January 19, 1966 the defendant took plaintiff’s deposition during which time it was developed that plaintiff had seen not only Dr. Ashcraft and Dr. LaMotte, hut also a Dr. Shaffer, all of Harlingen, Texas. At the time of the taking of this deposition, it was further developed that Dr. LaMotte and Dr. Shaffer had died, leaving only Dr. Ashcraft who had examined the plaintiff for the injury claimed. The trial commenced on March 14, 1966. Two days prior to the trial, however, the plaintiff was examined by a throat specialist, Dr. M. P. Palmer, for the first time. Dr. Palmer advised plaintiff’s attorneys as to his opinion of plaintiff’s throat. On the third day of trial Dr. Palmer was called by plaintiff’s attorney as their witness, whereupon the defendant moved to exclude the doctor’s testimony or in the alternative for a continuance of the trial because he was surprised and that the plaintiff had not advised the defendant that Dr. Palmer was one of the doctors who had examined the plaintiff. Appellant’s attorney in arguing to the court outside the presence of the jury stated that a continuance would be necessary for the purpose of fair play and justice and that if, however, the court was going to permit Dr. Palmer to testify, the plaintiff should make available to the defendant “all memoranda, reports and/or x-rays of Dr. Palmer,” and further Dr. Palmer’s testimony should be limited to exclude any history that may have been related to him by the plaintiff. The thrust of appellant’s argument was that once you ask a question by way of interrogatory (Rule 168, Texas Rules of Civil Procedure) such question is a continuing one that must be answered truthfully from the time it is served upon the party until the trial has been concluded. The trial court in considering the defendant’s motion, ruled that Dr. Palmer could testify, but would not be permitted to relate any history given to him by the patient. At the same time, the court granted the defendant a limited continuance, stating that: “the Defendant will be given as much as a day’s time, if necessary, to examine the testimony of Dr. Palmer for purpose of submitting additional or contrary medical evidence as to what he testifies to and (the Court) will require Dr. Palmer to remain available for recall, for additional examination throughout the trial.” The record shows that Dr. Palmer’s records were made available to the defendant. Dr. Palmer’s testimony consisted of 32 pages on direct examination by plaintiff’s attorneys, and 33 pages of cross examination by defendant’s attorney.

The appellant argues here that Rule 168, T.R.C.P., which became effective September 1, 1962 was adopted from Rule 33, Fed.Rules of Civ.Proc. with minor procedural changes; that under the Federal rule parties to a lawsuit are under a moral duty to disclose any evidence where former answers given to interrogatories are incomplete or misleading. Plaintiff cites a number of Federal District Court decisions which hold, at least in some districts, that Federal Rule 33 makes the original interrogatory a continuing one, requiring the party upon whom the interrogatories are served to continue to furnish information as to that which was inquired about up to and including the time of trial. No Texas decisions are cited by appellant in support of this contention. Texas Rule 168 states:

“At any time after a party has made appearance in the cause, or time therefor has elapsed, any other party may serve upon such party written interrogatories to be answered by the party served * * * who shall furnish such information as is available to the party. * * *” (Emphasis supplied.)

We believe that Rule 168 T.R.C.P. contemplates that one set of answers shall be prepared and served by the answering party within a time certain as specified by the asking party, as the following language from the rule clearly indicates:

“* * * the party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within the time specified by the party serving the interrogatories which specified time shall not be less than 15 days after the service of the interrogatories, unless the court, on motion and notice and for good cause shown, enlarges or shortens the time. * * * »

There is a comprehensive annotation, commentary, historical note and comparison of the Texas Rule 168 to the Federal Rule 33 immediately following the rule itself in Vol. 2 of Vernon’s T.R.C.P., beginning on page 166 and through page 169. A careful examination of the reference material and author’s comments under this Rule does not indicate to us that this rule has ever been construed by anyone or by any court of this state to require that such an interrogatory be of a continuing nature. We believe the rule as written requires answers of facts that exist at the time specified. In the interest of justice and fair play, the asking party may update his request for information subsequently if he desires. Justice Norvell of the Texas Supreme Court, in discussing the relative merits of the Federal Rules to the State Rules, and in construing Rule 167 relative to discovery said:

“The question here involves the application of Rule 167 as written, and not the relative merits of the Federal Rule as opposed to the State Rule. No argument however persuasive as to the superiority of the Federal practice from the standpoint of fairness and justice can justify our destruction of a plainly written proviso under the guise of judicial interpretation.” Ex parte Ladon, 160 Tex. 7, 325 S.W.2d 121, at 124 (Tex.Sup.1959).

Certainly the rule (168) does not in express language require that the interrogatories be continuing.

The record indicates that both parties announced “ready for trial”. If appellant was concerned about the continuing effect of the interrogatories, he could have made inquiry at that time. The trial court has broad discretion in the conduct of the trial. Looney v. Traders & General Ins. Co., 231 S.W.2d 735 (Tex.Civ.App.—Ft. Worth 1950, wr.ref.) We do not find that the court abused its discretion, nor do we find that there was any bad faith on behalf of the appellee in respect to the calling of Dr. Palmer in view of the fact that he had only seen the plaintiff two days prior to trial and the court gave the defendant additional time to counter the doctor’s testimony. Even under the Federal practice where a United States District Court’s pretrial rules required both parties to furnish to their adversaries names of all witnesses known or expected to be used before trial, the Court of Appeals for the Fifth Circuit held that the trial court committed no abuse of discretion in permitting a doctor whose name had not been so furnished to testify as an expert witness for the plaintiff where it was not known that the doctor would testify until a few days before trial when he examined the plaintiff. Texas & Pac. Ry. Co. v. Buckles, et al., 5th Cir., 232 F.2d 257, 260. Appellant’s point is overruled.

Appellant’s first point of error is that the trial court erred in failing to grant a new trial because one of the jurors was unable to read and write and that no exception to this qualification existed in Cameron County. Defendant furnished an affidavit from the district clerk to the effect that the requisite number of jurors able to read and write were available. Article 2133, Vernon’s Ann.Tex.Rev.Civ.Stat., sets up certain qualifications of jurors. One of these apparently may be waived under certain circumstances, as it reads as follows:

“3. He must be able to read and write, except as otherwise provided herein.
“Whenever it shall be made to appear to the Court that the requisite number of jurors able to read and write cannot be found within the County, the Court may dispense with the exception provided for in the third subdivision; * *

In Cameron County the statutory qualification requirements of Article 2133, Tex. Rev., Civ.Stat.Ann. are conducted by a district judge when the jurors are pooled in the central jury room. Whether this particular question was asked by the presiding judge is not apparent from the record. Upon qualification of the jurors they are broken down into panels and are assigned to each of the respective courts where different cases are to be tried. The jurors in this case were qualified in the manner above described. One of the jurors, Rodolfo Cortinas, was selected to serve on this jury. The appellant’s attorney conducted a voir dire examination of the jury panel prior to trial and raised no objection as to the juror’s qualification. At or about the time the jury was reaching its verdict, the defendant filed a motion for mistrial and four jurors were extensively examined, including Cortinas. In fact Corti-nas was examined on two different occasions (the other on motion for new trial) all of which comprised 32 typewritten pages, all done in English without the aid of an interpreter. At no time did the juror admit that he was unable to read and write at all, although his ability was undoubtedly limited. On examination, Corti-nas admitted that he did not understand English “too well”. He did testify that he could read English “just a little bit”. On another occasion the witness testified “I don’t know how to read very good.” On cross-examination by appellant’s attorney the witness testified in response to the question “When you were asked the question ‘Are you able to read or write the English language’ what answer did you give ?” Answer: “They didn’t ask me that question to me.”

The reason for challenge “That a juror cannot read and write” may be waived. Renfro v. State, 156 Tex.Cr.R. 400, 242 S.W.2d 772 (Tex.Crim.App.1951). The Court of Criminal Appeals has also held that where a juror who had served that could not read or write, and had not been questioned on this particular qualification, the same would be deemed as waived. McGrew v. State, 269 S.W.2d 381 (Tex.Crim.App.1954). In the case of San Antonio & A. P. Ry. Co. v. Gray, 66 S.W. 229 (Tex.Civ.App.-1901) the Court held that where the defendant failed to question a juror with reference to his ability to read or write, the discovery at trial that he could not read or write or understand the English language is not sufficient grounds for setting aside the verdict. In DeArman v. State, 80 Tex.Cr.R. 147, 189 S.W. 145 (1916), the Court said:

“The only other question raised in the record before us is that the juror J. W. Glaze, who served as one of the jurors in this case, could not read nor write. We might pass this off by stating that the juror swears no such question was asked him on his examination.”

Although the court held that where it was not shown that the requisite number of jurors could be found in the county, the defendant had waived the qualification, it is clear that where the question was not asked, it was waived. This is not such a qualification under Article 2133, V.A.C.S. that can’t be waived or would make the trial void as a matter of law. The juror did express an understanding of the English language and we hold that under the circumstances he was qualified. In any event appellant’s objection comes too late and the appellant has failed to show that harm probably resulted. Rule 434, T.R.C. P. We hold that this point of error is without merit and is overruled.

Appellant’s third point is that the trial court erred in failing to instruct the jury just prior to the time they retired for the night, and as a consequence the foreman of the jury took the charge and special issues home with him. This point is overruled. The jury foreman was called as a witness to testify on appellant’s motion for mistrial. The trial court at the conclusion of the cross examination of the jury foreman asked this question of the juror :

“ * * * I believe when you were first given the charge, after the termination of the argument, you were advised by the court that you could have lunch and then go back to the jury deliberating room, and that the charge would be there with the exhibits; and the court told you at that time that, if you had not completed your duties you were free to separate and that you could take this charge with you?”
Answer: “Yes, sir, that is correct.”
Question: “And that is what you did do?”
Answer: “Yes, sir.”
Question: “And that there was no alteration to this charge whatsoever while it was in your custody.”
Answer: “That is correct.”

It was further brought out that an oral instruction was given by the court as well as the written charge that preceded the special issues. In addition, the district judge impanelling the jury gave each juror a written set of instructions. These instructions were made a part of the record. An examination of the same by us shows that they are very much like those used for many years by the courts of the state and have been approved in decided cases. Essentially they are the same that are discussed by Justice Jack Pope in “The Judge-Jury Relationship” article, Southwestern Law Journal, Vol. 18, page 46 and following. This point is overruled.

Appellant’s fourth point is that the trial court erred in not granting a mistrial because the word “insurance” was mentioned during deliberations on the damages that were awarded to plaintiff. We have read the rather voluminous record concerning the examination of four jurors on the occasion of the hearing on the motion for mistrial and the re-examination of juror Cortinas on the occasion of the hearing on the motion for new trial. We find that there is a conflict in the testimony as to the misconduct alleged by the appellant. Appellant contends that in his motion for new trial that the trial court further erred in refusing to permit him to re-examine one of the same jurors again, because he had affidavits attached to his motion for new trial. The motion for new trial exhibits only one juror affidavit and that is of juror Cortinas and the trial court permitted Cortinas to testify at great length. The other jurors were examined during appellant’s motion for mistrial for the same asserted ground of error. Nothing new was alleged or supported by affidavit. Under these facts there was no error. The effect of the testimony from the jurors was that the word “insurance” had been mentioned and was promptly followed by rebuke from the foreman of the jury. This would not constitute error. Other testimony concerning the mentioning of insurance was conflicting as to whether or not misconduct occurred. The trial court overruled appellant’s motion for new trial on the ground of jury misconduct. No express findings were requested or filed. When this is the case it is presumed on appeal that the trial court found all controverted facts in support of its judgment overruling the motion and that no misconduct occurred. Brawley v. Bowen, 387 3. W.2d 383 (Tex.Sup.1965); Prasek v. Dudley, 395 S.W.2d 876 (Tex.Civ.App. —Corpus Christi 1965); Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493 (Tex.Sup.1956); Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644 (Tex.Comm’n App., Op. adopted 1942); Allan v. Materials Transportation Co., 372 S.W.2d 744 (Tex.Civ.App.-Corpus Christi 1963).

Appellant’s fifth and sixth points are that the court erred in entering judgment against Thomas A. Sweeney, Jr. and Peyton F. Sweeney, individually and doing business as Coca Cola Bottling Company, a partnership; that since the plaintiff sued' “Coca Cola Bottling Company” and “Coca Cola Bottling Company” answered it was; error to render judgment against the individuals and partnership. The record shows that only Coca Cola Bottling Company, Inc. has perfected its appeal, its bond being signed by Thomas A. Sweeney, Jr., President. These points are without merit. Since defendants Thomas A. Sweeney, Jr. and Peyton F. Sweeney did not join in this appeal, and are not before this Court, appellant is in no position to complain on their behalf. If there was any error in rendering judgment against them, such error is harmless as to appellant Coca Cola Bottling Company. Rule 434, T.R.C.P.

The judgment, however, was rendered against Coca Cola Bottling Company of Brownsville, a Texas corporation, Thomas A. Sweeney, Jr. and Peyton F. Sweeney, individually and doing business as Coca Cola Bottling Company of Brownsville, jointly and severally. The plaintiff’s petition named all of the foregoing parties. The citation was served on “Coca-Cola Bottling Company” by delivering a copy to Thomas A. Sweeney, Jr., Vice President. However, both Thomas A. Sweeney, Jr. and Peyton F. Sweeney, individually, appeared and testified at the trial. Both of the individual parties testified as to their relationship as individuals, partners and as corporate officers. No objection as to their appearance was made by the defendant. In fact, the defendant in two written pleadings, stated: “To said Honorable Court: Comes now Coca-Cola Bottling Company, Peyton F. Sweeney, Thomas H. Sweeney, Jr. and Brownsville Coca Cola Bottling Company, and makes this their motion. * * *” etc. The record does not reflect that the appellant ever filed any special plea in the nature of abatement at any time during the course of the trial under the provisions of Rule 120, T.R.C.P. We therefore hold that the appearances made by the defendants were general, not only during the course of the trial but by their pleadings. They are bound by the judgment rendered by the court. These points are overruled.

Appellant’s last point is that of accumulation of error which we have considered and overruled.

Appellee by three cross-points raises a procedural question which questions the jurisdiction of this court. Appel-lee contends that appellant’s motion for mistrial is in reality a motion for new trial and therefore by calculating the time accordingly, the defendant’s appeal was not timely perfected. A motion for mistrial is not the same as a motion for new trial. These cross points are overruled. St. Louis Southwestern Railway Company v. Duke et al., Tex., 424 S.W.2d 896 (Dec. 13, 1967).

Judgment of the trial court is affirmed.

SHARPE, J., not sitting.


source: Caselaw Access Project

author: PRESLAR, Justice.

license: Public Domain

text:
    David FUENTES, Appellant, v. Frances E. HOWARD, Appellee.
    No. 5913.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 27, 1967.
    Rehearing Denied Jan. 24, 1968.

      Charles E. McDonald, Alpine, George W. Finger, El Paso, for appellant.
    Shafer, Gilliland, Davis, Bunton & Mc-Collum and Lucius D. Bunton, Odessa, for appellee.
   OPINION

PRESLAR, Justice.

This is an election contest for the office of County Commissioner, Precinct No. 4, Presidio County, Texas, arising out of the election held November 8, 1966. The election returns and poll and canvass for said office as made by the election and county officials show that David Fuentes received 60 votes and Frances E. Howard received 44 votes as a write-in candidate, and by canvass of the Commissioners’ Court of Presidio County, Texas, David Fuentes was declared elected. In an election contest, for which this appeal is taken, the trial court decreed the final tally and poll of legal votes to be 58 votes for Frances E. Howard; 55 votes for David Fuentes; and that Frances E. Howard was duly elected. We reverse, and render judgment that David Fuentes is the duly elected County Commissioner for Precinct No. 4, Presidio County, Texas.

The votes of Ramon Muniz, Cruz T. Muniz, Edubyin Muniz, Ramon Muniz, Jr., Bertha Muniz, Feliciano Muniz, Ricardo Muniz, Jose E. Mendoza, Ramon Mendoza, and Flora Zertuche were counted for ap-pellee, Frances E. Howard, and appellant contends such votes should not have been counted because each of the voters received aid in that the notary public who took their acknowledgments to their absentee ballots struck out the name of appellant on the ballots and wrote in the name of appellee. Except for the vote of Flora Zertuche, which will be discussed later, the validity of such votes depends on whether Article 5.05, subdivision 15, Vernon’s Annotated Texas Election Code, is directory or mandatory.

Subdivision 15, Article 5.05, in the parts here pertinent, provides:

“No assistance shall be given a voter in marking his absentee ballot except where the voter is unable to prepare the same himself because of some bodily infirmity, such as renders him physically unable to write or to see. * * * Where any assistance is rendered in marking an absentee ballot other than as allowed in this subdivision, the ballot shall not be counted but shall be void for all purposes.”

In its judgment the trial court found that such votes were legal votes, but expressly found “that each of said voters received assistance in voting their absentee ballots.” Excepting Flora Zertuche, there is no contention that any of such voters suffered any bodily infirmity, and there is no dispute as to the court’s finding that each received assistance in preparing his ballot. We are of the opinion that the article is mandatory and that these nine ballots should not have been counted for appellee. In providing this manner of casting absentee ballots, the legislature used mandatory language- — “the ballot shall not be counted but shall be void” —and the courts have held that the provisions as to absentee balloting prescribed by the legislature, as amended in 1959, are mandatory and not directory. Farrell v. Jordan, 338 S.W.2d 269 (Tex.Civ.App., Houston 1960; wr. dism.); Brandon v. Quisenberry, 361 S.W.2d 616 (Tex.Civ.App., Amarillo 1962; n. w. h.); McGee v. Grissom, 360 S.W.2d 893 (Tex.Civ.App., Ft. Worth 1962; n. w. h.) ; Guerra v. Ramirez, 351 S.W.2d 272 (Tex.Civ.App., San Antonio 1961; wr. dism.); Atkinson v. Thomas, 407 S.W.2d 243 (Tex.Civ.App., Austin 1966; n. w. h.). Appellee cites cases holding that the election laws should be given a liberal construction to the end that they be held directory and not mandatory and the voting privilege not he lost by technicalities. With that there can be no quarrel, but the function of the courts is to interpret and apply the law as written by the legislature, and this provision of the law leaves no room for interpretation. We are unable to construe words such as “shall not” be counted, and “shall be void” as directory. The reported cases show that many of the abuses and misuse of the election process occur in the system of absentee voting, where the vote is cast somewhat in secrecy away from the public polling place on election day. The legislature has spelled out the manner in which this privilege of voting by mail and at a time and place other than the public polling place on election day shall be exercised. The general rule is that the performance of duties placed upon the election officials is directory unless made mandatory by statute, while those placed upon the voters are mandatory. Davis v. Walcott, Tex.Civ.App., 96 S.W.2d 817 (dism.); City of Roma v. Gonzalez, Tex.Civ.App., 397 S.W.2d 943 (ref., n. r. e.). By the above subdivision 15 the legislature has prescribed that the absentee voter who receives aid, however innocently, shall not have his ballot counted. Thus the task of proving fraud in the far-flung absentee voting is not cast upon one who contests absentee votes in which the voter received unauthorized assistance. The obligation of the contestant is to establish such assistance, and as to the votes before us the trial court found there was in fact assistance, and such finding is not challenged. Appellee cites Fields v. Cotten, Tex.Civ.App., 383 S.W.2d 84 (n. w. h.) and Mitchell v. Jones, Tex.Civ.App., 361 S.W.2d 224 (n. w. h.), for the proposition that subdivision 15 of Article 5.05 is directory and not mandatory. We cannot agree that such is the specific holding in either case, and we would adhere to the more definite holdings, with writ dismissed, of the cases of Farrell v. Jordan (supra) and Guerra v. Ramirez (supra), and the latest case specifically stating that the subdivision is mandatory, Atkinson v. Thomas (supra, no writ). Mitchell v. Jones recognizes the mandatory feature of the subdivision, for the opinion states:

“The first point challenges the respective ballots of a group of voters who received assistance in marking their ballots on the basis that the person giving assistance was not sworn, and did not take an oath in accordance with that part of Art. 8.13 pertaining to persons rendering assistance to voters in the preparation of their ballot. Art. 5.0S, Sec. 15 and Art. 8.13 contain provisions identical in meaning, stating that when assistance is rendered the voter in preparing a ballot other than the assistance allowed by statute the ballot shall be void. It must be assumed that the legislature intended what the statute said; that is, that the vote cast shall be void if the voter receives assistance in preparing a ballot other than the assistance allowed by law. The facts show that no voter received assistance except in marking a ballot; such assistance is the very thing the statute authorized. Taking an oath regarding his duties by the person rendering assistance is no part of the act of assisting the voter. Receiving assistance not authorized, not being assisted by an unsworn person, is the prohibited act voiding the ballot.”

In the course of the opinion the court then goes on to state:

“Art. 8.13 provides that no voter shall have assistance in preparing his ballot unless he can not do so because of some bodily infirmity that renders him physically unable to write or sightless. In Art. 5.05 Sec. 15 it is provided that assistance authorized by Art. 8.13 may be rendered absentee voters insofar as Art. 8.13 is applicable, the latter article stating specifically: ‘The witness assisting the voter may perform any or all of the physical acts necessary to comply with the procedure for absentee voting.’ It is probable that the restriction in Art. 8.13 of the assistance to the physically impaired and blind, if mandatory, would in a proper case be held unconstitutional as depriving persons unable to read and write of their franchise. The constitution does not make literacy a qualification to vote. However, when assistance is rendered, as is the case here, the quoted sentence from Art. 5.05 Sec. 15 pertaining to assistance to absentee voters should be interpreted as allowing assistance to a qualified voter in the performance of any or all of the physical acts necessary to comply with the absentee voting regulations. Such assistance includes marking the voter’s ballot. As noted the proof made was that the voter did not suffer from certain specified physical impairments, such as blindness, loss of hands, etc., and no conclusive proof was made of the absence of other disabling physical condition.” (Last emphasis ours).

Thus, the language of the court as to sub-divison 15 loses some of its validity as the true basis for its holding, for it concludes that no conclusive proof was made as to the absence of other disabling physical conditions.

Fields v. Cotten was not decided on the basis that the language of subdivision 15 was not mandatory (in passing on the same language of Art. 8.13), but that it was not proved that unauthorized assistance was received. The court then went on to state: “ * * * the other provisions of the Election Code covering this situation are directory. Mitchell v. Jones, Tex.Civ.App., 361 S.W.2d 224.” (Emphasis ours). In the case before us, the court found as a fact that the voters received assistance, and such finding is supported by the evidence and is not challenged. We hold that the portion of subdivision 15 in question is mandatory and that the nine votes in question should not have been counted for ap-pellee.

The situation of Flora Zertuche is that she suffered a bodily infirmity in that she could not read without glasses, and when she appeared at the voting place it was discovered that she had failed to bring her glasses. Under the authority of White Oak Common School Dist. No. 19 v. Overstreet, Tex.Civ.App., 397 S.W.2d 334 (dism), a case of almost identical facts, we hold that her vote was properly counted for appellee.

Appellee seeks to raise the issue of the constitutionality of that section of subdivision 15 of Article 5.05 which prescribes the method of voting by illiterates and provides that no voter shall be entitled to any assistance in the marking of his ballot on the ground of illiteracy. A careful review of the entire record in this cause leads us to the conclusion that legality of these ten votes was not determined by the trial court on an issue of literacy. We do not question appellee’s right to raise for the first time on appeal the constitutionality of a statute, but we do not believe that this record warrants a presumption that illiteracy was a basis for the judgment. Findings of fact and conclusions of law were not requested, and in the absence of such findings, but with a statement of facts filed, the elementary rule is that the appellate court must presume that the trial court resolved every disputed fact issue in favor of the winning party, and must consider only the evidence which supports its judgment. North East Texas Motor Lines v. Dickson, 219 S.W.2d 795 (S.Ct.1949). In the case before us, there were no pleadings of illiteracy and it does not appear that the issue was tried by consent. There is a basis for support of the court’s judgment, based on the pleadings, so that it is not essential to the judgment that the illiteracy issue be presumed. Appellant, not appellee, challenged these votes, and pleaded assistance, which made the above-discussed issue of whether or not the subdivision in question was mandatory or directory. The form of the court’s judgment belies the contention that illiteracy was an issue, for the court sets out each group of voters in paragraphs of the category in which challenged, and made its ruling as to such group; and, in some instances, as here, stated the court’s finding. Thus the court, in its judgment, sets forth eleven enumerated paragraphs of conclusions and findings which follow the pleadings, and then states :

“The above findings are made, based upon the pleadings, amendments, supplemental and trial amendments filed herein and considered by the Court; as well as the evidence offered by the parties hereto, and the Court finds that Frances E. Howard was duly elected to such office.”

We are unable to conclude that literacy was a disputed fact issue which was tried by consent and passed on by the trial court as a basis for the judgment. The voters in question were Spanish-speaking individuals, and questions were asked as to their understanding of the English language, but that is a different matter from illiteracy, and provisions of the Election Code provide for interpreters; also, they were quizzed as to why the notary wrote in the name of appel-lee for them on their ballots, but the questions asked, together with the carefully drawn pleadings and the judgment with its findings, do not add up to a disputed issue tried by consent which this court is obligated to add to the other basis for the judgment. Subtract nine votes from the total of ap-pellee.

The ballot of Petra Perez was cast absentee and was counted by the election officials and the trial court for appellee Howard. Appellant contests such ballot because the jurat is defective in that there is no seal or other designation identifying the officer administering the oath, and because it appears that such officer was an officer of the county of residence of the voter, Presidio County. The jurat begins “State of Texas, County of Reeves”, but two lines are drawn through “Reeves” and “Presidio” is written in beside it. The person who administered the oath is one Venita F. Jobe, not otherwise identified, except that Venita F. Jobe signed over the printed designation, “Notary Public, Absentee Election Official, or other person authorized to administer oaths”. In the absence of evidence to the contrary, Venita F. Jobe would be presumed to be what the jurat says he is— one authorized to administer oaths. The carrier envelope is very clearly postmarked from a point outside of Presidio County, and the presumption in support of the trial court’s counting of the ballot would be that Venita F. Jobe was not an officer of Pre-sidio County. We are of the opinion that all that was done amounted to substantial compliance with the election laws, and that the record does not warrant reversal of the trial court’s action as to the vote of Petra Perez.

By Points of Error numbered 5, 6, 7 and 8, appellant contests four votes counted for appellee on the basis that each of such ballots is illegible and the intention of the voter to cast a ballot for Frances E. Howard is not clearly ascertainable within the meaning of Art. 6.06 of the Texas Election Code. These ballots were apparently legible to the trial, court, and we can read them, so the evidence supports the court’s counting of these votes. One of these ballots is also contested because the name written in is “Nell Howard”. There is evidence in the record that appellee is known in the community as Nell Howard, Nellie Howard, and Frances E. Howard. Art. 6.06 of the election code provides that the failure of the voter to mark his ballot in strict conformity with the directions of the code shall not invalidate the ballot, and that the ballot shall be counted where the intention of the voter is clearly ascertainable. The intention of the voter was clearly ascertainable in this small community, population-wise, where the two principals had engaged in a prior closely contested race for the same office in the primary election. In conformity with the holdings in the cases of Longoria v. Longoria, Tex.Civ.App., 278 S.W.2d 885 (n. w. h.), and Johnston v. Peters, Tex.Civ. App., 260 S.W. 911 (dism.), we hold that the trial court properly counted this ballot for appellee Howard.

By cross-assignments of error, appellee says that the court should have counted the vote of Manuel Tarrango, Sr., as he is the only absentee voter whose initials are “M.T.”. The judgment recites: “The Court finds that one voter failed to place his name on the stub of his ballot, and that he placed his initials thereon, and that such vote was counted for Contestant, and that his failure to sign his name to the stub voids his vote and, for that reason, such vote should be deducted * * * ” The court correctly held that the vote should not be counted for failure of the voter to affix his signature to the stub. Vicars v. Stokely, 157 Tex. 182, 300 S.W.2d 623 (1957). Appellee makes the point that Manuel Tarrango could not write. The election code provides that in such a case the voter shall affix his mark, attested by two witnesses. That was not done in this instance, and the court properly voided the ballot.

Appellee challenges the vote of Luis Sanchez on the basis of citizenship. The voter testified in his own behalf that he was born at Ruidosa, Texas, and that he had been residing in Mexico but had returned to Ruidosa some two years before with a wife and children acquired in Mexico. The records from the local Selective Service Board listed him as “Alien living in Mexico”, with a place of residence of Barrancas, Chihuahua, Mexico, and a mailing address of Ruidosa, Texas. The clerk of the local Selective Service Board testified that this information was furnished by the registrant’s selective service questionnaire and the notation was made in 1949; and that in 1964 the registration of Luis Sanchez, alias Luis Prieto, was canceled and his Selective Service file destroyed, and he was no longer considered a registrant of Selective Service because he was an alien residing in Mexico. The plain implication is that Luis Sanchez is a draft-dodger. At the time of the Korean conflict he furnished his draft board the above information and absented himself from this country until some two years ago. Clearly he was not eligible to vote following his disclaimer of citizenship, and we see nothing in the record that outweighs such disclaimer. All that he has done is return. He has not again registered for the draft. The weight of the evidence is that Luis Sanchez is not a citizen of this country and is not entitled to vote. Subtract one vote from appellant’s total.

Appellee challenges the votes of Mr. and Mrs. Norris, Mr. and Mrs. Middleton, James Arnold, Angel Salgado and Cesario Salgado, for the reason that they were not residents of Presidio County. The trial court found all of these votes to be legal votes and counted them for appellant. Appellee’s broad assignments of error as to these votes do not specify whether she is saying there is no evidence to support the finding, or whether she is saying there is insufficient evidence to support such finding — or stated otherwise, that the finding is against the great weight and preponderance of the evidence. The rules for determining the two assignments are different. If the complaint is that there is “no evidence”, the reviewing court considers only the evidence and the inferences tending to support the findings, and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Commercial Standard Insurance Company v. Allred, 413 S.W.2d 910 (Tex.1967). From the manner of briefing and the relief prayed for — rendition rather than remand — we conclude that appellee is asserting that there is no evidence to support the court’s action as to these votes. The basis for the court’s conclusion that the votes are valid not being specified, we must presume that the trial court resolved every disputed fact issue favorably to its conclusion. We conclude that the action of the trial court in counting these votes for appellant must be sustained.

We have determined that nine votes should be subtracted from the total of 58 counted by the trial court for appellee Howard, and that one vote should be subtracted from the total so counted for appellant Fuentes. This makes the final tally and poll of legal votes 54 for appellant and 49 for appellee.

The judgment of the trial court is reversed, and judgment is here rendered that David Fuentes is the duly elected County Commissioner for Precinct No. 4, Presidio County, Texas.


author: CHAPMAN, Justice.

text:
    COMMERCIAL STANDARD INSURANCE CO., Appellant, v. Roy L. WHITE, Sr., et ux., Appellees.
    No. 7762.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1967.
    Rehearing Denied Jan. 8, 1968.

      Cade & Bowlin, James O. Cade, Lubbock, for appellant.
    R. H. Munsterman, Levelland, for appel-lees.
   CHAPMAN, Justice.

Commercial Standard Insurance Company filed suit in the trial court to set aside a Compromise Settlement Agreement entered into between an agent of the insurance company and Mr. and Mrs. Roy L. White, Sr., because of mutual mistakes in executing the Settlement Agreement, failure of consideration, non-existence of a Workmen’s Compensation policy furnishing the basis of the settlement, and lack of jurisdiction of the Industrial Accident Board to validate the agreement by approval.

The Compromise Settlement Agreement was entered into between the adjustor of the company and Mr. and Mrs. Roy L. White, Sr., parents of Roy L. White, Jr., a single minor who was killed by electricity while an employee of Turner Popejoy, an electrical contractor. The adjustor for Commercial Standard, Jerry Drummond, signed the Compromise Settlement Agreement for the insurance company under the mistaken belief that the employer, Turner Popejoy, carried Workmen’s Compensation insurance with his company. He was so advised by Murry Stewart, agent for the employer in securing coverage for him. However, we do not believe he could be considered as the agent of any of the parties to the purported contract of settlement. Popejoy’s only employee was Roy L. White, Jr.

Before it was discovered that Popejoy’s insurance on his electrical contracting operation consisted (so far as the written record shows) of a

“5,000.00-10,000.00 .Employer’s Liability
50,000.00-100,000.00 .Comprehensive Bodily Injury Liability
25,000.00 .Comprehensive Liability Property Damage”

policy, rather than a Workmen’s Compensation policy, the Compromise Settlement Agreement was entered into and attempted to be approved by the Industrial Accident Board. This, despite the fact that the Board, by letter to Popejoy and a copy to Commercial Standard, had previously advised such parties that its records did not reflect that Popejoy was a subscriber under the Workmen’s Compensation Insurance Act, or Commercial Standard was the carrier writing the policy for Popejoy.

The case was submitted to a jury, which found that Commercial Standard had demanded and accepted premium payments from the employer in an amount sufficient to have purchased a Workmen’s Compensation policy covering his employees; that in so doing the insurance company falsely represented to Popejoy that his employees were so protected; that Commercial Standard made such representation with knowledge that such a policy had not been in fact issued; that the insurance company’s acts, representation, conduct or silence, led Popejoy to believe he had Workmen’s Compensation; that a reasonably prudent person in Popejoy’s position would have believed his employees to be so protected ; that Commercial Standard failed to call Popejoy’s attention to the rider deleting compensation from the policy; that the demand for premiums in an amount sufficient to purchase compensation insurance was made with the intention that Popejoy rely on such demand; that Popejoy did so rely and that such reliance led to damages to the Whites.

A motion for peremptory instruction was made following the close of the testimony and a motion for judgment n.o.v. and for a new trial after the verdict, raising the various legal questions which are raised by this appeal. Such questions were also raised in appellant’s objections to the court’s charge.

Appellant groups its first three points for argument. They assert the trial court erred in overruling its motion for peremptory instruction and for judgment n.o.v. when there was no evidence that the employer had a Workmen’s Compensation policy with Commercial Standard, the Compromise Settlement Agreement was without consideration, and was executed by all parties under an honest, mutual mistake of fact, and the great weight and preponderance of the evidence is against the verdict.

Prior to any insurance coverage with Commercial Standard, Popejoy had insurance coverage for his electrical business with Mid-Continent Casualty Co. Murry Stewart, the broker who procured the above described coverage for Popejoy, became owner of a local insurance agency in Sundown in 1962. At that time, Popejoy had coverage with Mid-Continent, which he renewed during the' time Stewart owned the local insurance agency. In 1964, Mid-Continent was no longer doing business in Texas. They could not renew Popejoy’s coverage, which had been Employer’s Liability during its entire history. He had never had Workmen’s Compensation coverage with them.

Appellees very ably pleaded their case in an effort to bring it within some of the doctrines announced in McCaleb v. Continental Casualty Co., 132 Tex. 65, 116 S.W.2d 679, 682; Federal Underwriters Exchange v. Cupit, 172 S.W.2d 105, Tex.Civ.App., Beaumont, 1943 (writ refused w.m.) ; and Superior Insurance Co. v. Kling, 160 Tex. 155, 327 S.W.2d 422. However, they pleaded that Murry Stewart was the authorized agent of Commercial Standard, a fact not proven by the record. The trial court found otherwise, and we believe properly so.

The record was without contradiction that Mr. Stewart never had power or authority at any time to write either Workmen’s Compensation or Employer’s Liability policies on behalf of any insurance company, and particularly, Commercial Standard. It is also uncontradicted that Stewart was the agent for Popejoy in securing his insurance coverage. The latter never, at any time, had any dealings with Commercial Standard nor with any of its agents with authority to write either Workmen’s Compensation or Employer’s Liability policies. It is important to note that the trial court charged the jury that any agent or broker, such as Stewart in this case, is deemed agent of the insured in procuring a policy and the insurer is not bound by his acts nor the knowledge acquired by such broker in the transactions. The authorities support the court’s charge in that respect. Automobile Insurance Co. of Hartford, Conn. v. Buie, 252 S.W. 295, Tex.Civ.App. San Antonio, 1923 and the authorities there cited on the point; Retailers’ Fire Insurance Co. v. Jackson Gin Co., 10 S.W.2d 799, Tex.Civ.App. Amarillo, 1928 (writ dismissed).

The facts of our case distinguish it from the cases last cited. In the McCaleb case, it was held that even though the Workmen’s Compensation Act did not, at that time, apply to cities and their employees, the city could take out an insurance policy in an old line insurance company for the benefit of its employees, adopting the provisions of the Act as the standard for which the amount to be paid to the employee should be computed.

The Supreme Court held that: “When the provisions of the policy are considered as a whole, in connection with all the facts and circumstances surrounding the issuance and acceptance of same, the subject matter of the contract, and the purpose the parties had in mind at the time, it clearly appears that the insurance company and the city had certain main objects in view * * * ”; and among those was that the benefits to be paid would be equal to the benefits provided by the Workmen’s Compensation Act, whereas the subject matter of the contract here provided “* * * all provisions of the policy relating solely to coverage A are deleted”. Coverage A was Workmen’s Compensation. The record is completely void of any contract, oral or written, of Workmen’s Compensation coverage. Additionally, in considering “all the facts and circumstances surrounding the issuance and acceptance” of the policy, we find that Popejoy authorized his agent, Stewart, to procure coverage such as he previously had with Mid-Continent, which was Employer’s Liability.

We are not unmindful here that appel-lees urge there was an oral contract to insure, but there simply is not any evidence to support such a theory. Mr. Popejoy said he thought he was covered by Workmen’s Compensation.

“Q. And you assured them (the Whites) that he was covered by workmen’s compensation, I suppose?
A. I assured them that he was insured.
Q. But you took that in your mind to mean workmen’s compensation?
A. According to the policy it would look like it, but I just said—
Q. You were led by the policy to believe that you had workmen’s compensation?
A. That would be the first impression to look at it.”

Mr. Popejoy never, at any time, talked with any agent of appellant with authority to contract orally or otherwise for Workmen’s Compensation coverage. The policy was written on the “Standard Workmen’s Compensation and Employers’ Liability” policy, with Workmen’s Compensation deleted. Mr. Popejoy had a copy of the policy. Mrs. White saw it at his place of business. All they would have had to do was read it to see that there was no Workmen’s Compensation coverage. We do not believe the fact that Mr. Popejoy’s “first impression in looking at the policy” was that it was Workmen’s Compensation coverage and that the parents of the deceased “understood” their son was covered by Workmen’s Compensation could make an oral contract for coverage in the absence of some legal duty of Commercial Standard to advise them the nature of the coverage or a legal duty arising out of its refusal to advise them. Clearly, under the court’s charge, Stewart’s actions or refusal to advise Popejoy the coverage he had purchased for him was not binding on appellant.

The notices sent to the oil companies for whom Popejoy’s company did electrical work showed “Workmen’s Compensation and Employers’ Liability” under “Type of Insurance” but they also showed there was no Workmen’s Compensation coverage, nor coverage in the nature thereof, because they also showed a $5,000.00 limit of recovery for each person. The record may show that Popejoy’s agent, Stewart, purchased poor coverage for the one employee for the price Popejoy paid, but appellant is not responsible for Stewart’s lack of judgment.

The witness, Paxton, testified there was enough charge for coverage to pay for both Workmen’s Compensation and Employers’ Liability, but he admitted that he had not been told there was also a Comprehensive General insurance policy issued in connection with the premiums paid.

We do not believe the fact that appellant accepted premiums sufficient to pay for Workmen’s Compensation coverage legally estopped it from denying such actions when it is shown, as it is in this record, that such premiums were applied to Comprehensive General Bodily Injury coverage shown to have been purchased.

In the Cupit case the insurer specifically agreed to insure employees of an independent contractor under the terms of the Compensation Act, and the partnership contracting with the independent contractor paid the policy premiums, which were accepted as such by the insurer. Our record is completely void of any agreement by the insurer to bind itself under any coverage other than that shown in the written contract between it and Popejoy. The Kling case allowed recovery for an employee of a cotton gin, who also owned a ¼8 interest in the gin company, because the insurance company knew of that ownership when it wrote the policy. The Court held it was estopped to deny recovery because it accepted premiums knowing the employee owned an interest in the gin. We do not see any analogy in that case and ours.

If there was any obligation on the part of Stewart to advise Popejoy the nature of his coverage that obligation can not be imputed to appellant in this case under the record evidence and the court’s charge.

Therefore, the issues inquiring of the jury if there were demands upon Popejoy by the insurance company sufficient to pay for Workmen’s Compensation, if there was conduct or silence which led Popejoy to believe he had Workmen’s Compensation coverage, and if the company advised him he did not have such coverage are either immaterial or there is no evidence to support them. The other issues based upon such inquiry would also be immaterial. It is agreed by all parties that the premiums were sufficient to pay for Workmen’s Compensation but instead of purchasing that coverage, Popejoy’s agent, Stewart, purchased a $5,000.00 to $10,000.00 limit Employers’ Liability policy and a Comprehensive General Liability policy with $50,-000.00 to $100,000.00 limits on bodily injury and $25,000.00 limits on Property Damage Liability. Popejoy had the policy before him showing the coverage. No appellate court, so far as we know, has written a Workmen’s Compensation policy by judicial decree for a claimant under a statement of facts such as we have here.

The appellees contend the Compromise Settlement Agreement is sufficient within itself to support the judgment regardless of any Workmen’s Compensation coverage or coverage in the nature thereof. They say: “The theory of recovery based upon the enforcement of a Compromise Settlement Agreement will, standing alone, sustain the judgment of the trial court.” This question is one of considerable difficulty and as to its proper solution, we admit to some doubt.

The only case cited by appellee on this particular question is Liberty Mutual Ins. Co. v. Martinez, 407 S.W.2d 272, Tex.Civ. App. El Paso, 1966, no writ history. In that case the trial court, the fact finder, found the agreement and release were not the result of mutual mistakes. Here, it is uncontroverted that the Compromise Settlement Agreement was entered into as a result of mistakes on the part of all signatories to the Compromise Settlement Agreement recognizing that Popejoy had Workmen’s Compensation coverage on his employees.

Mr. White’s deposition testimony introduced into the record without objection shows he signed the Compromise Settlement Agreement under the belief there was a Workmen’s Compensation policy, and if there was not one, then he was mistaken. Clearly, there was not one.

Mrs. White testified she was under the impression her son was covered by Workmen’s Compensation insurance because she had seen the policy. The only other party to the contract was Jerry Drummond. He testified he and “everybody there” thought there was Workmen’s Compensation insurance coverage and that he certainly would not have signed the Compromise Settlement Agreement if he had not thought so. He testified further that Murry Stewart, who had procured the policy as agent for Popejoy, told him there was a Workmen’s Compensation policy on the White boy and he relied on that statement. Therefore, under this state of the record, we see no escape from the fact that the subject instrument was signed by all parties under a mutual mistake of fact.

None of the cases cited in the briefs furnish us much satisfaction with respect to the legal result of the mutual mistake of fact. Therefore, we have been forced to resort to general principles of equity and contract law. There are many authorities that hold, directly or by dicta, that equity will intervene to set aside contracts entered into under a mutual mistake of fact. In Travelers’ Insurance Co. v. Jones, 32 Tex.Civ.App. 146, 73 S.W. 978, 1903 (writ refused) the court said:

“The execution and delivery of the policy by the insurance company in accordance with the written application evidence a completed transaction, and constitute a contract between the parties. In order to have the contract set aside on the ground of mistake, the mistake must have been mutual, and the party must seek relief, without delay, upon discovering it.” (Emphasis added.)

In our case the mistake was mutual and relief was sought without delay.

The Compromise Settlement Agreement shows within its body that it was the settlement of a Workmen’s Compensation claim. Since there was not any Workmen’s Compensation coverage: “* * * the contract furnished within itself the evidence of the mistake.” This quote just made was the Supreme Court’s answer to a complaint of another court’s holding that inserting $26.00 for $13.00 in a note could be corrected. The Supreme Court observed that the note made the by-laws a part thereof. Such by-laws prescribed that a shareholder should pay $1.00 per month on each share of stock, and there being 13 shares, would make $13.00 per month to be paid. Abbott v. International Building and Loan Association, 86 Tex. 467, 25 S.W. 620 (Sup.Court 1894).

“A mistake which equity would relieve against must ordinarily be a mutual one.” International Life Insurance Co. v. Stuart, 201 S.W. 1088, Tex.Civ.App., Fort Worth 1918, citing Abbott v. International Building and Loan Association, supra.

“A mutual mistake is one common to both parties to the contract, each laboring under the same misconception”. Anderson Brothers Corporation v. O’Meara, 306 F.2d 672, 5th Circuit, 1962; St. Paul Fire & Marine Insurance Co. v. Culwell, 62 S.W.2d 100, Commission of Appeals, Sec. A 1933; Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447, Commission of Appeals, Sec. B, 1935 (opinion adopted); Earp v. First State Bank of Abilene, 356 S.W.2d 178, Tex.Civ.App., Eastland, 1962 (writ refused n.r.e.). Therefore, equity requires that the mutual mistake be corrected unless the Compromise Settlement Agreement must be upheld for some other reason.

We still are faced with the legal principle that to afford relief in equity on the grounds of mistake, the mistake must ordinarily not be due to negligence on the part of the petitioner. 13 T.J.2d Page 482, Sec. 258 and cases there cited.

The evidence is not of such nature that we feel justified in holding, as a matter of law, that there was negligence shown on the part of the insurance company in signing the Compromise Settlement Agreement. This negligence such as to avoid the equitable results of a contract entered into by mutual mistake is not a question upon which the trial court could make implied findings.

The theory of recovery for mutual mistake is separate and distinct from the theory of estoppel to deny Workmen’s Compensation coverage (or coverage of such nature) upon which the case was submitted. “The power of the judge to make findings where none are submitted or requested does not extend to independent grounds of recovery or defense, but only to incidental or subsidiary findings necessary to support the judgment in connection with the issues in fact submitted to and found by the jury.” Citizens’ National Bank of Brownwood v. Texas Compress Co., 294 S.W. 331, Tex.Civ.App., Austin, 1927 (writ refused).

Since appellant clearly established that the Compromise Settlement Agreement was signed under a mutual mistake of fact it evolved upon appellees to avoid the equitable results flowing therefrom by proving and securing a finding that such mistake resulted from appellant’s lack of proper care, indifference, or neglect, or some other defense thereto. Having not done so, we believe the issue is waived. “A party may waive an issue upon which he relies for recovery or defense, by failing to request its submission. * * * In such case, if the party has failed to request for submission such issue, or issues, as will sustain his action or defense, he has not met the burden placed upon him by law, and no waiver can be imputed to the other party for such failure. For instance, in the case of Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S.W. 902, it was held that the issue of limitation not having been submitted or requested, the trial court did not have the power, under the statute, to make such findings in order to sustain the judgment of the trial court.” Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79.

As a general rule, a party waives an issue upon which he relies by failing to request its submission. Rule 279 V.A.T.R., Lincoln County Mutual Fire Insurance Co. v. Goolsby, 240 S.W.2d 402, Tex.Civ.App., (Texarkana 1951); Rodriguez v. Higginbotham-Bailey-Logan Co., 172 S.W.2d 991, Tex.Civ.App., San Antonio 1943 (writ refused). This is true unless the defense relied on is established as a matter of law. Texas Prudential Insurance Co. v. Dillard, 158 Tex. 15, 307 S.W.2d 242. Here, we do not believe it was so established. The issue was one appellees needed to prevail. Having not requested its submission, we must assume it was waived.

Our holdings herein can not properly be said to deny the appellees a right of recovery for the death of their son if the facts justify such recovery against Popejoy, or any other person or entity guilty of any negligent acts, or failure to act, proximately resulting in his death. We just do not believe we would be justified in holding that the Whites’ or Popejoy’s belief or understanding that the boy was covered by Workmen’s Compensation may legally bring such coverage into existence under the facts of this case.

Such holdings make it unnecessary to write on the other points. Accordingly, the judgment of the trial court is reversed and rendered.


author: FRASER, Chief Justice.

text:
    Delma BAUCUM, Appellant, v. TEXAM OIL CORPORATION, Appellee.
    No. 5933.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 27, 1967.
    Rehearing Denied Jan. 24, 1968.

      Finley & S cogin, Kermit, for appellant.
    Boyd Laughlin, W. B. Browder, Jr., Milton L. Bankston, Midland, for appellee; Stubbeman, McRae, Sealy & Laughlin, Midland, Hill, Betts, Yamaoka, Freehill, & Longcope, New York City, of counsel.
   OPINION

FRASER, Chief Justice.

This is an appeal from the granting of a temporary injúnction by the trial court restraining one Delma Baucum from disposing of a number of different kinds of assets and properties. The original petition prayed for relief, an accounting, and judgment for all sums due and owing to the plaintiff, along with a lien upon any assets acquired by Baucum in derrogation of his duties to the corporation.

The plaintiff-appellee, Texam Oil Corporation, hereinafter referred to as “Tex-am”, is the surviving corporation of a merger between itself and Santiago Oil and Gas Company, and is a corporation active in all phases of the oil business, such as drilling and producing oil and gas, obtaining and promoting leases, etc. From 1959 through the early fall of 1966 the officers of Texam consisted of Leland Redline, President; Delma Baucum, Vice-President; and J. Kirk Cansler, Secretary-Treasurer. Each of these men served on the Board of Directors of the corporation. The duties and obligations of the three gentlemen above named were as follows. Mr. Redline was in charge of administrative duties, and, as an experienced geologist, screened or passed on the various oil deals and was responsible for locating leases, farmouts, etc., and participated with Delma Baucum in the actual planning of the drilling operations, such as matters pertaining to the type of equipment used, etc. Mr. Baucum was the production superintendent, and his duties consisted of supervising of the drilling and producing wells and the purchasing of equipment and supplies for the drilling operations and the manner and conduct of the acquisition of said equipment. Mr. Cansler, as secretary-treasurer, performed the duties of general office manager and accountant and was in charge of the invoicing and paper work relating to the acquisition of leases and lands. It is alleged that after Cansler’s employment by Santiago, the predecessor of Texam, he instructed that a “purchase order” system be inaugurated within the company. This system provided that authorized personnel should write up a purchase order describing the equipment to be purchased and from whom, and where and how the equipment was to be utilized. A copy of this purchase order was to be tendered to the vendor who would invoice the equipment to the company upon delivery of same. Cansler would compare the purchase order with the invoice and approve same, and after approval of the invoice, checks would be issued by the company in payment for the equipment. Mr. Redline, Mr. Baucum and Mr. Cansler were the officers authorized to issue purchase orders and to sign the checks in payment of the invoices tendered pursuant to the transaction.

According to the record, in the latter part of 1960 there was a discussion between Redline, Baucum and Cansler to the effect that they could make money by purchasing equipment required by the corporation and sell it to the corporation at a higher price, which maneuver would, of course, produce profit for the three men. The record indicates that this plan or scheme was agreed upon by the aforesaid three officers of the corporation, and put into effect. In order to carry out this plan, the three men put into operation an invoicing vehicle known as “D. Webber & Co.”. It was agreed that Baucum, in conjunction with Redline, would determine the equipment required by the company, then Baucum would locate the equipment and buy it in the name of D. Webber & Co., and then issue the purchase order from Texam to Webber under the procedure outlined above. D. Webber & Co. would then invoice Texam, and Cansler would authorize purchase after matching the invoice with the purchase order, and authorize the preparation of a check by Texam in payment of the Webber invoice. The three men then, in turn, would execute the checks payable to D. Webber & Co. and forward them to it. It appears that the invoices of D. Webber & Co. were prepared by Cansler at his home pursuant to a memorandum from Baucum as to the price to be charged for the goods. Further carrying out this plan, the three men established an account with the First State Bank, Odessa, Texas, and all three men executed guarantee agreements with the bank for D. Webber & Co. It appears that neither the stockholders nor the directors of the corporations were ever informed of this operation by the three officers, Cansler testifying that it was “implicit in the thing because of the nature of the thing” (apparently meaning that the three men thought the operation should be kept secret). It appears from the record that D. Webber & Co. did not possess any warehouse or office and never purchased any equipment or supplies except in response to a need for same by Texam. The record further reveals that D. Webber & Co. received as income from Texam Oil Corporation during the period from July 11, 1961 through September 29, 1965 the sum of $552,311.85. It is also in the record that disbursements of profits from this operation during said period of time was the sum of $181,195.00, Cansler and Baucum each receiving profit from Webber Co. in the sum of $60,365.00, and Redline receiving $60,465.00. There is testimony from a Mr. Paul Nelson, a certified public accountant, that his examination of the records of Texam revealed other unexplained disbursements, unsupported by the records and unaccounted for as to disposition.

According to the record, in 1965 the three men had a meeting in the company offices where they discussed an extensive drilling program to be conducted by Texam on the Rocker “B” ranch in Reagan County, Texas, which would require an extensive need for drilling equipment of all types. Apparently the three men again agreed to participate in an operation similar to that of D. Webber & Co. in order to generate a personal profit to themselves, and again the three men made financial arrangements for funds in order to purchase equipment and decided that they would operate this time under the name of “Athens Equipment Company”. According to the record, the funds deposited for this new company came from the closing out of the D. Webber & Co. account, as well as a check from Texam Oil Corporation. In this new venture it appears that Cansler and Baucum determined that they had a need for billings through companies with state sales tax numbers, and Mr. Baucum stated that he was aware of the availability of such numbers; so on February 11, 1966 the billings ceased from Athens Equipment Company and commenced to flow to Texam from the multitude of approximately 26 or more new companies, all with different names. It is alleged that Texam purchased through these new companies or vehicles merchandise in the sum of $2,055,761.01. The accountant testified that he was able to trace a profit of $24,525.50 to each of the three men from the Athens operations. This certified accountant, Mr. Nelson, further testified that he was unable to account for disbursements in the sum of $457,761.30. Texam Oil o Corporation introduced voluminous records including invoices, ledger cards, checks, etc., to reflect their payment.

It seems that one of the Texam Board of Directors members, a Mr. Charles C. Green, became curious about the operations of D. Webber & Co. and the Athens Equipment Company, as well as the various other vendors, and brought these matters to the attention of Mr. Cansler. It seems that Mr. Green also became curious when he noted that the postoffice box numbers of the various vendor companies were, in many cases, the same; and upon investigation Mr. Green learned that the post-office boxes were connected with Delma Baucum. He reported this to Mr. Redline and insisted that he be allowed to send an accountant to the offices of the company to examine the records, which was done. After this examination the Board of Directors meeting was conducted in New York City, wherein Mr. Green produced voluminous material he had gathered. Thereafter, a national accounting firm was employed to review the personal records of Mr. Cansler, Mr. Redline and Texam, pertaining to the D. Webber and Athens operations. Before this Board meeting, and as a result of a conference between the three men, they decided that they would remit to Texam the “profits” they had derived. Baucum contributed $50,000.00, and Cansler and Redline each contributed $15,000.00, to purchase a cashier’s check from the First State Bank, Odessa, Texas, in the total sum of $80,300.00, which check was deposited in the Texam Oil Corporation account and credited to the Rocker “B” leases and distributed to the joint participants in the leases in proportion to the interests they owned therein. Appellee points out in its brief that the transactions by and between Texam and the so-called vendors were well documented by Exhibits 547 through 2834.

In addition to these matters, in 1961 and 1962 the three men, Redline, Baucum and Cansler, formed a corporation called “Mal-jamar, Inc.” Cansler was President; Bau-cum, Vice President; and Redline, Secretary-treasurer. According to the record, in addition to performing well servicing activities for Texam, this new corporation also acquired interests in oil and gas leases and developed same in Texas and New Mexico. When the corporation was dissolved, some of its equipment was sold at a profit to Texam. The assets were assigned one-third each to Redline, Baucum and Cansler. It is in the record that in addition to the oil and gas interests obtained by the officers, in competition with Texam, this operation produced income to the three men in the sum of $50,385.73. These three men also created another oil operation known as “Redelcan”. This new operation involved development and drilling of leases in the State of New Mexico, and the monies to develop these properties was borrowed from the First State Bank, Odessa, Texas.

In December, 1965, Baucum and Redline had a discussion in the Texam offices with regard to the purchase of a drilling rig to conduct the drilling of some 36 wells on the Rocker “B” leases in Reagan County. The Board of Directors of Texam rejected this idea of purchasing the rig and equipment, and informed Mr. Redline that he should not get involved. Thereafter, Redline, Baucum and Cansler decided they would purchase the rig, and a Mr. J. C. Mansker, a friend of Baucum’s, was brought into the picture. It was agreed that Mansker would borrow the funds to purchase the rig from the First State Bank of Odessa, and Bau-cum and Cansler would guarantee the debt. The rig was purchased at a total cost of $130,000.00 with money loaned by the bank. Thereafter, bids for drilling the wells for Texam were submitted by Mansker and accepted by Redline for Texam. The actual drilling contracts were signed by Bau-cum and the wells were subsequently drilled pursuant thereto. It was agreed that Mansker would be paid a salary of $1,000.00 per month to operate the rig and, after the drilling of each well, $2,000.00 profit would be applied to the note at the bank, and the remainder of the profit divided equally between Mansker, Redline, Baucum and Cansler. Funds as the result of this operation were disbursed in the sum of $7,000.00 to each man. The record shows that Texam paid to Mansker Drilling Company, during the year 1966, the sum of $350,000.00.

The record also reveals that two different men — Mr. C. H. Brockett and a Mr. Marvis Simpson — sold used equipment to Baucum by invoicing them under some of the various corporations that the three men had set up. Mr. Simpson testified that Baucum would inform him as to the name of the company to which he wanted the invoice made.

The above seems to be, generally, the transactions alleged by Texam to have been entered into by Baucum et al. While our prior statement of the nature of the case and the facts and record may seem a little long, we deem it necessary to present the entire picture, as cases of this nature depend on the discretion of the trial judge and whether or not he should have issued the temporary injunction, and if same was proper and applicable. It is our belief and holding, after studying the entire case, that the trial court was well within his discretion in granting the temporary injunction. As appears from the briefs and record, the temporary injunction herein complained of was issued by the District Court of Midland County, Texas pending final hearing of a lawsuit filed by appellee (plaintiff) Texam Oil Corporation. In this lawsuit ap-pellee charges appellant (defendant) wrongfully and fraudulently caused appellee to pay him large sums of money and otherwise obtained, retained and partially diverted and disposed of corporation funds by interposing himself for personal profit between Texam and the true vendors of various oilfield materials, supplies and services. Ap-pellee then alleges that the funds thus; fraudulently received were used to purchase lands, oil and gas and mineral leasehold estates, stocks,- bonds, stock certificates, promissory notes and other monies, assets and properties which were and are held by appellant as trustee for appellee, the rightful owner. Appellee then further alleged that it would suffer irreparable harm unless the defendants at the trial court were enjoined and restrained from disposing of the res of the alleged constructive trust. After the temporary restraining order was granted there was a hearing comprising several days, and the writ of temporary injunction was issued.

Appellant’s first six points allege that there is no evidence, or there is insufficient evidence, that any of the funds alleged to be subject to the constructive trust have been traced to any property, general or specific, now owned by appellant, and that there is no evidence, or insufficient evidence, identifying the res of the alleged constructive trust; and that there is no evidence, or insufficient evidence, to create the imposition of a constructive trust upon any stocks, bonds, stock certificates, promissory notes, or any other monies, assets or properties held by appellant Delma Baucum, First State Bank of Odessa, Texas, or H. Hentz & Co.

We do not see merit in these points, as we do not believe the law to be that a plaintiff in a case such as this should be put to the duty of accurately tracing items such as money that has been co-mingled with other assets or perhaps used to purchase other properties or assets. We believe the law to be, when the petition alleges a cause of action and the evidence adduced tends to sustain it, that the trial court has broad discretion granted it in matters of this nature, and may issue a temporary injunction. As indicated by the record in this case, defendant Baucum had many and varied assets and properties, and we think the trial court was well within its discretion in holding such a status quo, as our examination of the record clearly indicates that the evidence tends to sustain the allegations of the appellee in its petition and its application for temporary restraining order. We think the legal aspect of the matter is thoroughly and sufficiently discussed in the following quotation from Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, decided by the Supreme Court of Texas in 1953:

“In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. James v. E. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. To warrant the issuance of the writ, the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. Rosenfield v. Seifert, Tex. Civ.App., 270 S.W. 220, 223; Nagy v. Bennett, Tex.Civ.App., 24 S.W.2d 778, 781; High on Injunctions, 4th Edition, Vol. 1, Sec. 5, p. 8. If the party enjoined prevails on a final -trial of the case he finds protection against the improvident granting of the writ and consequent loss in the interim in the applicant’s bond. Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 462. There is no abuse of discretion in the issuance of a writ if the petition alleges a cause of action and the evidence adduced tends to sustain it. Southwestern Greyhound Lines, Inc. v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235.”

Appellee urges that Baucum diverted at least $130,512.97, and that by the use of such funds he acquired lands, stocks, bonds, and interests in oil, gas and mineral estates, all in violation of his trust and confidential fiduciary capacity, and that subsequent to July, 1966 he had set upon a course of conduct to dispose of properties he held and had committed acts respecting the subject of the pending litigation which would render a judgment upon the merits ineffectual. Appellant apparently does not discuss or cite the facts adduced at the trial, and it is in the record that Mr. Baucum took advantage of the provisions of the Fifth Amendment to the United States Constitution. Therefore we feel that the trial court wás well within its discretionary powers in granting the temporary injunction. The Texas Supreme Court further discussed the duties of corporate officers and their fiduciary capacities in the case of International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, wherein it pointed out that in matters of this type the burden is cast upon the defendant to prove the fairness of his personal profits and pointing up, further, that defendants in such fiduciary capacities owe the duty of obtaining property for the corporations of which they are the officials at the best possible price; also stating that the profit which defendant corporate officers seek to make for themselves through the corporation must be held to belong to the corporation.

Having discussed the fiduciary obligations and duties of Baucum and appellant’s argument that appellee should have traced the res of the trust, we will now proceed to the general consideration of the temporary injunction itself.

As stated in Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421, temporary injunctions undoubtedly place petitioners in an unfavorable economic position, but our system of procedure is such that legal rights are not finally determined on the wisdom or expediency of issuing a status quo order. Our Supreme Court goes on to state that deliberate action is essential for the accurate determination of legal rights, and upon occasion such can only be accomplished by protecting a status quo; and the hearing on such is not a decision, or intended to be a decision, on the merits of the case. In Article 4642, Vernon’s Ann. Civ.St., it is stated that writs of injunction may be issued where a party performs some act respecting the subject of pending litigation or threatens or is about to do such act, or to have it done for him, in violation of the rights of the applicant, when such act would tend to render the eventual judgment ineffectual. The subject of temporary injunctions is well set out and discussed in Thomas v. Allis, Tex.Civ.App., 389 S.W.2d 109 and cases cited therein. The cited case points up and emphasizes that it is not enough that there is some remedy at law, but that such remedy must be plain, adequate, or as practical and efficient to the ends of justice and its prompt administration as the remedy at equity. In other words this case, and the many cases cited therein, point up that the remedy at law must be practical, available and effectual. As stated in Moffitt v. Lloyd, Tex.Civ.App., 98 S.W.2d 860 (n. w. h.), the primary purpose and office of the temporary injunction is to preserve the status quo of the subject matter of the suit against any act of a party which would tend to render the final judgment in the case ineffectual. Also, the Supreme Court of Texas, in the case of City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 77 A.L.R. 709, speaking through the then Chief Justice Cureton, stated that it is elementary that a court, once having obtained jurisdiction of a cause of action as incidental to its general jurisdiction, may exercise any power or grant any writ, including the writ of injunction, necessary to administer justice between the parties, preserve the subject matter of the litigation, and make its judgment effective. Other decisions point out that in case of trust funds (and we deem the language equally applicable to constructive trust funds or properties), such do not belong to the petitioner or defendant, but must await the disposition of the case on its merits; and if the defendant is successful, then his ownership is determined and assured, and if not, the property wrongfully obtained and fraudulently held may be returned to the rightful owners. Therefore, on the basis of the record, pleadings and testimony, we think the trial court was within its power in granting the temporary injunction in the manner and at the time it did. The very nature of the factual background here, in our opinion, requires the holding of these assets of Mr. Baucum in status quo until the entire matter can be deliberately disposed of in a trial on the merits. Appellant’s Points 1 through 6 are therefore overruled.

Appellant’s Points 7, 8 and 9 take the position that the trial court abused its discretion because the injunction as issued is so ambiguous, vague and unclear that appellant is not fully apprised of what he is prohibited from doing so that he can comply with said injunction, and the force and effect of said injunction is wholly conjectural and speculative. We do not find merit in these points. The intent of the court is clearly set forth in its own language, wherein it is stated that if defendant Delma Baucum is not restrained from disposing of property which may become the res of a constructive trust, a final judgment in the cause could be rendered ineffectual and the plaintiff will suffer irreparable damage thereby unless the said defendant is restrained from disposing of the property now held in his name. We think the injunction is clear and adequate, and in view of Mr. Baucum’s silence the court had to go on what information it had and, therefore, within his discretion, decreed that the properties, monies and assets of the defendant Baucum should be held in status quo until the matter could be thoroughly sorted out in a trial on the merits. Points 7, 8 and 9 are according overruled.

Appellant’s Points 10, 11 and 12 argue that the injunction has the effect of destroying the status quo or, in the alternative, of accomplishing the whole purpose of the suit, and further that appellee has brought forth no evidence, or insufficient evidence, tending to show what the status quo was before the suit was instituted. We do not find merit in these points and believe them to have been covered by our prior discussions. It must be remembered that plaintiff’s pleadings and briefs and the record indicate that Mr. Baucum personally profited at the expense of the corporation of which he was vice president, by buying properties and services through dummy corporations and then selling them to his own company at a profit to himself and his two companions. It would be no easier or practical or necessary for the court to determine what the status quo was before than it would have been for the court to have made the injunction as pin-pointedly accurate as defendant demands. Under the circumstances, where there was evidence adduced to show that Mr. Baucum had improperly profited at his corporation’s expense and had converted at least some of the money so improperly obtained into other types of property and, as alleged in appellee’s brief, was making efforts to dispose of some of these properties, we think the injunction was properly granted and is proper and adequate in form. Appellant’s Points 10, 11 and 12 are therefore overruled.

Appellant’s Points 13 and 14 maintain that the trial court abused its discretion in granting the writ of temporary injunction because such writ infringes upon the rights of the appellant under the Constitution of the State of Texas. It has long been decided that homestead and exemption laws of this State were never intended to be, and cannot be, the haven of wrongfully obtained money or properties. As stated in the case of First State Bank v. Zelesky, Tex.Civ.App., 262 S.W. 190, the property wrongfully obtained never belonged to the individual anyway. We do not find any merit in Points 13 and 14. Bush v. Gaffney, Tex.Civ.App., 84 S.W.2d 759 (n. w. h.); Smith v. Green, Tex.Civ.App., 243 S.W. 1006 (err.ref.); Meyers v. Baylor University in Waco, Tex.Civ.App., 6 S.W.2d 393 (ref.). Appellee again points out that if the injunction does have harsh economic results to appellant, such is the result of his commission of fraudulent acts and his refusal to proffer evidence regarding his property and affairs. We believe the above cases and others point out that funds wrongfully diverted from a corporation and subsequently diverted into property ordinarily exempt, will be subject to a constructive trust, and a trial court has wide discretion in holding the entire matter in status quo until a trial on the merits can be had. Therefore, Points 13 and 14 are overruled.

Appellant’s Points 15 through 18 maintain that appellee has failed to prove that the available remedies at law were inadequate, and has failed to present sufficient evidence that appellee would suffer irreparable injury if the temporary injunction were not issued; that appellee has not shown that it has attempted to exhaust its remedies at law, and lastly, that the writ is not supported by sufficient definiteness and certainty in the pleadings and alleges that the pleadings assert only conclusions, and not facts. We think these points must all be overruled and feel that they have been disposed of in our prior discussions and holdings. However, we should like to point again that the question of the adequacy of the remedies is one for the judge, clothing him with wide discretion in passing on same. It is not a jury question. Further, the mere fact that there exists a remedy at law is not conclusive, but the remedy at law must be complete, practical and efficient, and subject to prompt administration. This means, of course, that equity will step in with its injunctive processes where the remedy at law may not be sufficient or effective. This is clearly stated by the Supreme Court in Brazos R. Conservation & Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W.2d 842, wherein our Supreme Court again cites cases recognizing the settled principle that the injured party is entitled to relief by injunction where there is not clear, full and adequate relief at law. The Supreme Court cites many authorities with respect to this statement and then says: “It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.”

Without further discussion, we think it is clear that the trial court was well within its discretion in issuing the temporary injunction and attempting to maintain the status quo. We hold that there was adequate proof adduced to justify the trial court in issuing the writ, and we further hold that the temporary injunction is sufficiently clear and adequate and legally acceptable.

We have examined the many cases cited by the appellant, but we do not find that these cases contradict our holdings as set forth above.

Appellant’s points are all overruled, and the decision of the trial court is in all things affirmed.