text:
    ASSOCIATED INDEMNITY CORPORATION v. WILSON et al.
    No. 12463.
    Court of Civil Appeals of Texas. Fort Worth.
    May 16, 1931.

      .Bullington, Boone, Humphrey & King, of Wichita Falls, for appellants.
    . Williams Y. Brown, of Texarkana, and Pierre M. Stine, of Henrietta, for appellee.
   CONNER, C. J.

This suit was instituted in the district court of Clay county by appellant Associated Indemnity Corporation to set aside’an award in_ favor of Alberta Wilson, a feme sole, and John Wilson, Jr., by next friend, made by the Industrial Accident Board on or about the 21st day of February, 1930, in a sum in excess of .$1,000.

The defendants filed a cross-plea claiming that Alberta Wilson was the wife of John Wilson, deceased, and that John Wilson, Jr., was the son of Alberta and John Wilson. That John Wilson was working for the Wichita Falls Cotton Oil Company, in Clay county, about the 28th day of August, 1929, and, while in the course of his employment, he received injuries from which he died on that day. It was further alleged that the appellant corporation was, under the Workmen’s Compensation Eaw of Texas (Vernon’s' Ann. Civ. St. arts. 8306-8309), the insurer of the employees of the Wichita Falls Cotton Oil Company; that at the time he was receiving a salary of $2.28 a day, for six days a week, but that he had been employed for- only thirty or sixty days prior to his injury, and that the regular and 'customary daily wage for employees doing work of that kind and character was $2.25.

It was further alleged that, owing to the destitute circumstances of appellees, it would work a -manifest hardship upon them not to be paid the amount of compensation to which they were entitled in a lump sum rather than to be paid in -weekly payments. They therefore prayed for a judgment of 60 per cent, of the average 'weekly wage of $8.10 for 360 weeks, and for said sum to be paid in one payment, with a reasonable reduction for paymept thereof.

To the cross-action on the part of defendants, the corporation filed a general denial, and further pleaded that the death of John Wilson' was not the result of any accident that he received in the course of his employment, but, on the contrary, his death was caused by other things and acts and conduct rather than any injury defendants alleged he had received.

Upon the conclusion of the evidence, the corporation requested a special instruction to an impaneled jury to find in its favor. The instruction was refused and the cause was submitted to the jury upon special issues, which, together with the answers thereto, are as follows:

“1. Do you find from a preponderance of the evidence that John Wilson received an injury in the course of -his employment while working for Wichita Falls Cotton Oil Company on or about August 28, 1929? Answer: Yes.
“2. Do you find from a preponderance of the evidence that said injury, if you have found that he received such an injury, caused the death of John AVilson? Answer: Yes.
“3. What do you find from a preponderance of the evidence was the average weekly wage of an employee engaged in the same, or similar employment as John Wilson was engaged in, in Thornberry or neighboring places, for one year preceding August 28, 1929? Answer: Ten dollars.
“4. Do you find from a preponderance of the evidence that manifest hardship and injustice would result to Alberta Wilson and John Wilson, Jr., if compensation, if any, is not reduced and paid in a lump sum? Answer: Yes.”

Upon the verdict so returned, the court rendered judgment in favor of appellees in the sum of ’$7 a week for a period of 360 weeks, which, as computed by the court, “after allowing discount for present payment at 6% per annum,” was $2,113.02. From this judgment, the corporation has duly appealed to this court.

The first assignment of error goes to the action of the court in refusing a requested peremptory instruction, it being insisted that there was no evidence of probative force showing, or tending to show, that the injury alleged to have been received by John Wilson, deceased, was so received during the course of his employment with the Wichita Falls Cotton Oil Corporation.

We have concluded that the judgment must be reversed, and the cause remanded upon other grounds, and, therefore, we will not critically examine and discuss the evidence and determine the proposition presented under the first assignment.

For the purpose, however, of a clearer understanding of the record, we will very briefly outline the evidence relied upon as establishing the contention of appellees that John Wilson, deceased, received the injury during the course of his employment. It appears that the deceased had been employed by the Wichita Falls Cotton Oil Corporation, which was a subscriber under the Workmen’s Compensation Law in the appellant Indemnity Corporation for about fifteen days at a daily wage of $2.25; that on or about the 28th day of August, 1929, he, together with another, lifted and removed to another place a bale of cotton; that he continued working for some two hours thereafter when he began to complain of a cramp in his stomach which grew worse, and he was taken home. His family physician was called to attend him, and said physician testified to the effect that he found a hernia and the patient in great pain; that soon thereafter John Wilson expired.

Prior to this, the evidence tended to show that John Wilson, deceased, was a strong man, without disease or sickness of any kind, and the contention of appellees was that in lifting the cotton the deceased had so strained himself as to produce hernia and death.

We think it clear, however, that the court erred, as assigned, in refusing to give the following special instructions requested by the appellant, to wit:

“Gentlemen of the Jury:
“1. Do you find from a preponderance of the evidence that the death of John Wilson was solely caused by the administration of chloroform by Dr. Holton? Answer'as you find the facts to be.
“2. Do you find from a preponderance of the evidence that the death of John Wilson was solely caused by poison? Answer as you find the facts to be.”

We note the following evidence as calling for these charges, to wit:

Dr. J. B. Holton was the family doctor of the deceased, John Wilson; that he was specially called and placed upon the witness stand by the appellees; that Dr. Holton testified that when he arrived he found that John Wilson had a scrotal hernia on the left side but that he was cramping all over and vomiting incessantly, and that a hernia would not cause him to cramp that way, as he had never seen any one cramp that badly; that he gave him a hypo, but that did not relieve him; that he then gave him chloroform. I-Ie further testified:

“I don’t think this hernia was the cause of this suffering. I have treated quite a number of hernia, but I never saw anybody suffer like he was 'suffering from a hernia. I couldn’t say if it is a fact that this man .died from appendicitis or acute poisoning of the stomach, but negroes have trouble with their appendix like white folks do. He evidently was poisoned, that was my guess. He was vomiting incessantly and the most offensive I ever saw. Someone around the house said he ate an awful dinner. As to whether I saw watermelon ; yes, sir, my opinion is he died from acute poisoning.
“I think he was poisoned; • I think it was a toxic poison of some kind. I don’t think the death was caused from any hernia or strain. I don’t think that would have killed him at all. There was an autoinfection in this stomach, evidently.
“Sometimes when a patient is suffering from pain all doctors do not have time to test the strength of his heart. Sometimes people can’t take chloroform. Sometimes when people eat heavy dinners and suffer from gas on the stomach, chloroform will help to relax the muscles and cause death. That happens even with the best of doctors when they do their best, I don’t think that man’s death was caused from any injury.”

Dr. M. M. Walker, who performed the post mortem examination of the deceased, testified that the deceased had a badly dilated Stomach, about three times the size of an ordinary stomach, and that the appendix' was full of small rocks; that they were not caused by trauma or lick, and in his opinion the negro died from chloroform. He further testified: “I got part of the history from the undertaker and part of it from the doctor (Dr. Horton) at Charlie, and part of it from the men working there. The doctor at Charlie told me that he died from an overdose of chloroform, he thought he died from an overdose of chloroform. Anyone that gives anesthetics is going to have someone die some time. I am not impugning the doctor in the least; I think I have had that happen to me.”

Dr. B. C. Cammack, who assisted in performing the post mortem examination of John Wilson, deceased, testified:

“We did a complete post mortem. We opened his skull, examined his chest and abdomen, took all of his organs out and examined them. I did not find any evidence of traumatism on that negro at all. I did not find any evidence of strangulated hernia or any rupture of any kind. If there had been any evidence of trauma or rupture or hernia I would have found it.
“We opened the abdomen and his stomach was two or three times normal size.
“Chloroform will cause a stomach to dilate and it being a protoplasmic poison it would affect the heart too.
“We went into this man’s intestines and stomach and saw what it contained. The stomach contained what looked just like a greenish lot of stomach contents and it was hard to tell — undigested food. You couldn’t tell for sure what the food was. At that time you couldn’t tell whether he had been eating meat or bread or vegetables; it was all mixed up. I couldn’t swear whether he had been eating peaches or apples or anything of that kind.”

The burden of proof was upon ap-pellees to show that John Wilson, during the course of his employment, received an injury which was a proximate cause of his death, and the rule that a defendant to an action of the kind has the right to an affirmative presentation of any lawful defense to an action against him, of which there is competent evidence tending to support, is too well established to require discussion. In support of this rule, we think it only necessary to cite a few of the cases, to wit, M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 636, 35 S. W. 1058; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, and cases there cited.

For the error of the court in refusing the special charges mentioned, we think the judgment must be reversed, and the cause remanded for a new trial.

We also suggest that upon another trial, if before a jury, the court in his instructions should' define the legal terms “injury” and “course of employment,” as was specially requested by the appellant. See part 4, Workmen’s Compensation Law, art. 8309, § 1, subdivision 5; Robertson & Mueller v. Holden. (Tex. Com. App.) 1 S.W.(2d) 570; Texas Employers’ Ins. Ass’n v. Owen (Tex. Com. App.) 298 S. W. 542; Zurich General Accident & Liability Ins. Co., Ltd., v. Wood (Tex. Civ. App.) 27 S.W.(2d) 838; Barron v. Texas Employers’ Ins. Ass’n (Tex. Com. App.) 36 S.W. (2d) 464, 465.

We also note that the court, in fixing the lump sum adjudged in favor of the appellees, discounted the aggregate amount of wages at the rate of $7 per week for a period of 360 weeks, by allowing for present payment 6 peí-cent. per annum. Section B of the Commission of Appeals, in an opinion by Judge Led-dy, approved by the Supreme Court, recently decided that the present value of lump sum compensation should be determined by evidence, and not discounted at the legal interest. See U. S. Fidelity & Guaranty Co. v. Nettles (Tex. Com. App.) 35 S.W. (2d) 1045.

Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    SHELDON et al. v. STEVENS.
    No. 12460.
    Court of Civil Appeals of Texas. Fort Worth.
    June 13, 1931.
    Rehearing Denied July 11, 1931.
    B. W. Tipton, of Electra, for appellants.
    Ewing Clagett, of Wichita Falls, for ap-pellee.
   DUNKLIN, J.

A. H. Sheldon and Alfred Balko, copart-ners doing business under the firm name of Electra Radio Shop in Electra, Tex., entered into a written contract. with the Brenard Manufacturing Company, of Iowa City, Iowa, for the purchase of certain merchandise, including three radio sets, two radio and graph-aphone sets, and two straight graphaphones, the consideration for which purchase was twelve promissory notes executed by the partnership firm, payable to the manufacturing company or order, all of even date with the contract of purchase, falling due at different dates and in different amounts, with interest from date and the usual stipulation for attorneys’ fees. The notes were negotiable in forni, and this suit was instituted by F. L. Stevens, the assignee and holder, against A. H. Sheldon and Alfred Balko, members of the partnership firm, to- recover the amount due on the notes; and from a judgment in favor of plaintiff, the defendants have prosecuted this appeal.

The case was tried before the court without a jury, and the trial judge filed findings of fact and conclusions of law, which appear in the record.

As shown on the backs thereof, the notes, were duly transferred to the plaintiff, and one of the findings of the trial judge was that the plaintiff purchased those notes for a valuable consideration before maturity and without notice of any infirmity therein or any defense that the defendants might have against their collection; and one of the conclusions reached by the trial judge was that by reason of the fact that plaintiff was the holder of -the notes in due course, he was entitled to recover the amount due-thereon according to their face and tenor; and the judgment rendered was for the sum of $1,-128.10, which was a correct computation of the amount due on the notes, including principal, interest, and attorneys’ fees. The facts so found by the trial judge were duly supported by the evidence introduced, and by reason thereof, the judgment of the trial court must be affirmed.

One of the defenses urged by the defendants was that the notes were procured by fraud on the part of the sales agent of the Brenard Manufacturing Company, the payee of thé notes, which induced the defendants to execute them; and complaint is made here of the action of the trial court in failing to sustain that plea of fraud. However, the finding hy the trial judge already noted was that plaintiff was a purchaser of the notes in due course without notice of such fraud, and that finding of itself precludes the defense of fraud urged by the defendants.

Article 5035, § 57, Rev. Civ. Statutes 1925, reads: “A holder in due course holds the instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.”

See, also, First National Bank v. Humphreys (Tex. Civ. App.) 166 S. W. 53; Security Finance Co. v. Schoenig (Tex. Civ. App.) 292 S. W. 556; Security Finance Co. v. Floyd (Tex. Civ. App.) 294 S. W. 1113.

Accordingly, all assignments of error are overruled, and the judgment is affirmed.


author: CONNER, O. J.

text:
    EMPLOYERS’ CASUALTY CO. v. PONTON.
    No. 12465.
    Court of Civil Appeals of Texas. Fort Worth.
    May 9, 1931.
    Rehearing Denied June 6, 1931.
    Leachman, Gardere & Bailey and James P. Swift, all of Dallas, for appellant.
    G. R. Lipscomb, of Fort Worth, for appel-lee.
   CONNER, O. J.

This suit was instituted by the appellee Dr. Arvel R. Ponton, against the appellant Employers’ Casualty Company, in a justice court of Tarrant county to recover the sum of $154, alleged to be the reasonable value of medical services rendered T. O. McCurry.

The trial in the justice court resulted in a judgment against the Employers’ Casualty Company, from which an appeal was duly prosecuted to the county court of Tarrant county.

The plaintiff alleged that McCurry during the month of September, 1926, was an employee working for Dixon & Crites, in the city of Wewoka, state of Oklahoma; that said Dixon & Crites carried employees’ compensation insurance with the defendant company, by the terms of which the company became legally bound to pay the employees of said Dixon & Crites compensation for injuries received during the course of their employment, and further agreed to pay all medical, hospital, physician, and surgeon fees that might be incurred in the treatment of any such employee.

It was further alleged . that during the month of September, 1925, said McCurry received injuries during the course of his employment which prevented him from doing any work or labor; that such injuries were of such a nature as to entitle him to payments of compensation, physician, surgeon, medical, and hospital services; that as a result of said injuries McCurry applied to, and was directed to apply to, one Dr. Guy B. Van Sandt by said Dixon & Crites for treatment, Dr. Van Sandt being the physician, agent, and servant, and employee of said Dixon & Crites, and also of defendant Employers’ Casualty Company; that Dr. Van Sandt treated Me-Gurry for a short time, and then informed him that his condition was such as to make it necessary that he go to some place where he could receive hospital care and attention, and informed him that he could come to Fort Worth for that purpose, or could go to Oklahoma City, and gave him a letter designed for that purpose. That McCurry then came to Fort Worth, and, in pursuance of said instructions, applied to Dr. Arvel R. Ponton and to the Baptist Hospital in said city where he was admitted and there treated and operated on by Dr. Ponton, who rendered all suitable and proper services and treatment to him for said injuries.

' It was further alleged that after being discharged from said hospital McOurry made and entered into an agreement and settlement with the defendant Employers’ Casualty Company, the terms of which were that said T. O. MeCurry was to receive certain amounts of money, which were duly paid by the casualty company, and in addition thereto the casualty company agreed to pay Dr. Arvel R. Ponton $154 for his professional services rendered to MeCurry as aforesaid; that said contract, agreement, and settlement was made between the Employers’ Casualty Company, acting by and through its legally authorized agents and attorneys, and the said T. O. Me-Curry and the plaintiff, Dr. Arvel R. Ponton. • Plaintiff alleged that he has often requested defendant company to pay said amount of $154, and defendant has failed and refused and still fails and refuses to pay said amount, or any part thereof. Wherefore, plaintiff prayed for judgment.

The defendant pleaded in abatement that the county court was -without jurisdiction to hear and determine the case, “for the reason that plaintiff’s cause of action arises out of and under the Workmen’s Compensation Daw of the State of Oklahoma, and more particularly section 7288 thereof, under the terms of which the State Industrial Commission has sole original jurisdiction of all claims for medical service rendered.”

Defendant further pleaded a general demurrer, a general denial, and specially said section'7288 of the Oklahoma statutes (Comp. St. 1921), alleged.to “expressly and exclusively vest jurisdiction of claim for medical service rendered injured employees in the State Industrial Commission of Oklahoma.”

The plea in abatement was overruled, and upon a hearing of the evidence the county court, which tried the case without a jury, entered its judgment in favor of plaintiff Dr. Arvel R. Ponton for the sum of $154, together with interest thereon at the rate of 6 per cent, per annum from the date of the judgment, with all costs of suit, and from this judgment the Casualty Company has duly prosecuted its appeal.

The trial court filed his conclusions of fact and law, in which it is shown that MeCurry was injured while working for Dixon & Crites in Wewoka, Okl.; that Dixon & Crites carried workmen’s compensation insurance, being subscribers under the Industrial Accident Board of the state of Oklahoma, and that as a result of said injury McOurry was taken to Dr. Van Sandt at Wewoka, Okl., for emergency treatment; that the injuries to Me-Curry were such “that it was necessary for him to go to a hospital and that he came to Fort Worth, Texas, and went to the Baptist Hospital, where he was operated on and treated by Dr. Arvel R. Ponton, plaintiff herein, until he had recovered.”

The court further found that after MeCurry had recovered, Mr..James P. Swift, agent of the casualty company, “came to Fort Worth and made a settlement with the said T. O. MeCurry, and said settlement was approved by the Industrial Accident Board of the State of Oklahoma; that said settlement was made in Fort Worth, Texas; that at the time the settlement was made by James P. Swift and T. O. MeCurry under the workmen’s compensation act, that there was an agreement by the said agent of the Employers’ Casualty Company to pay the doctor’s bill of Dr. Arvel R. Ponton, plaintiff herein. I further find that the doctor’s bill was $154.00, and that it is a reasonable charge for the services rendered by the plaintiff.”

The court concluded as a matter of law that it had jurisdiction, and that the plaintiff was entitled to recover.

We have carefully read the entire statement of facts, and think the evidence as a whole fully sufficient to support the court’s findings. It is not disputed that a settlement was made and that MeCurry was paid in accordance with its terms. If necessary, we must presume that appellant would not have 'so paid MeCurry had it questioned the authority of Swift to make a settlement, or had it questioned any want of approval ón the part of the Industrial Accidefit Board of Oklahoma. While it is true that the evidence is conflicting on the point, MeCurry testified that the settlement so made with Swift included the agreement to pay Dr. Ponton his bill for medical services, the value of which are not questioned.

Appellant insists that Dr. Ponton was not a party to the agreement, and hence cannot avail himself of its terms. But the agreement was certainly made for Dr. Ponton’s benefit. The agreement also appears to be fully supported by a sufficient consideration, in that MeCurry thereby relieved the casualty company of any further liability, being induced thereby, presumably in part at least, by shifting from himself the burden of payment of the medical services. Dr. Ponton accepted the terms of the settlement, and is, hence, in a position to enforce it.

In Flack v. Neill, 22 Tex. 253, it is said; “In the absence of fraud, or any circumstances of imposition, a party may undoubtedly bind himself to pay the debt of another, although the debt be barred by limitation, at the time of the new contract.”

In McCown v. Schrimpf, 21 Tex. 22, 73 Am. Dec. 221, it is said: “Where the purchaser of property agrees with the seller, as part of the price thereof, ‘to reléase all mortgages thereon,’ a mortgagee may sustain a suit on said agreement in his own name, against the purchaser, not merely to subject the property to the mortgage, hut against the purchaser personally.”

See, also, Western Union Tel. Co. v. Neill, 57 Tex. 283, 44 Am. Rep. 589; Mathonican v. Scott & Baldwin, 87 Tex. 397, 28 S.W. 1063.

It seems apparent to us, irrespective of the terms of the Oklahoma law, that the action of appellee in this case was well founded upon the agreement alleged and found by the court.

We think there is no merit in the further contention that the suit was not maintainable in the courts of Texas. In addition to the facts alleged and shown in the evidence, the appellant association does business and has its principal office in this state, as well as also transacting business in the state of Oklahoma. We think -the action, as already indicated, is transitory in 'character, and hence triable in the proper court of this state. The distinction between oral and transitory actions is thus stated in Morris v. Mo. Pac. Ry. Co., 78 Tex. 20, 14 S. W. 228, 229, 9 L. R. A. 349, 22 Am. St. Rep. 17: “If the cause of action he one that might have arisen anywhere, then it is transitory; if it could only have arisen in one place, then it is local.' As, for example, an action of trespass to the person or for the conversion of goods is transitory. But an action for flowing particular lands is local, because the land can only be flooded where it is situated. For the most part, the local actions consist of those instituted for the recovery of real estate, or for injuries thereto, etc., for easements.”

See, also, M. N. Ry. Co. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276, 59 Am. St. Rep. 28.

The fact, as admitted, that the rights of the parties are to he measured by the laws of foreign jurisdiction will not alter the character of the action. No law of Oklahoma is pleaded or shown that would invalidate the terms of the agreed settlement with McCurry, or relieve appellant from its obligations, and we certainly have no law that would have such effect in this suit.

Appellant assigns numerous errors to rulings of the court in admitting testimony during the trial, alleged to be objectionable as hearsay and otherwise. But the trial was before the court without a jury, and in such cases it must be presumed, in the absence of a contrary showing, that the court founded the judgment upon competent testimony only, and that if there be sufficient unobjectionable testimony, as we think is true here, the judgment should be affirmed.

In Texas Jurisprudence, vol. 3, § 881, page 1259, it is said: “Ordinarily, the presumption will be indulged that incompetent evidence was disregarded in favor of a judgment rendered by a trial court without a jury. Consequently, error in admitting testimony is not ground for reversal of a judgment if there is other and competent evidence to support the judgment, and, from the record, it is not reasonable to suppose that the court was influenced by it to the appellant’s prejudice. 'And it is held that there can be no presumption that the effect of the wrongful admission of evidence was injurious in an action tried to the court where there is other evidence by which the judgment may be sustained.”

We conclude that all assignments of error should be overruled, and the judgment affirmed.


author: BUCK, J.

text:
    MORRISON et al. v. LAMBERT.
    No. 12375.
    Court of Civil Appeals of Texas. Fort Worth.
    June 6, 1931.
    For main opinion, see 33 S.W.(2d) 517.
    W. H. Morrison and W. E. Forgy, both of Archer City, and W. L. Scott, of Graham, for appellants.
    Kilgore & Rogers, of Wichita Falls, for appellee.
   BUCK, J.

Appellant W. H. Morrison files a motion to recall the mandate of this court and to ' retax costs accrued in the trial court. This cause was tried in the district court of Archer county, and the judgment entered November' 7, 1929. An appeal was prosecuted to this court, and on February 20, 1930, the transcript was filed in this court. On November 8, 1930, this court entered judgment, leaving the judgment undisturbed in part, and reversing the judgment below and remanding the cause in part. [33 S.W. (2d) 517.] Writ of error was applied for, and the writ of error - was refused by the Supreme Court.

Appellant now complains of the failure to charge in the bill of costs the item of the Q. and A. statement of facts and the narrative statement of facts. In the first place, where a Q. and A. statement of facts is made, the charge for the narrative statement of facts is not properly made a part of the bill of costs. In the second place, a motion filed at a subsequent term of the Court of Civil Appeals to retax the costs, so as to include an item incurred in preparing a statement of facts, will be overruled, where it appears from the motion that such item of costs was not taxed in the district court and was not included in the bill of costs in the transcript, mandate having been issued and been filed below prior to the making of the motion, although the error in omitting the item was not discovered until after the adjournment of the appellate court. See Brady v. Cobbs & Bonner (Tex. Civ. App.) 216 S.W. 420; H. & T. C. Ry. Co. v. Montgomery (Tex. Civ. App.) 189 S.W. 350.

The motion comes too late, and will be overruled at cost of appellant.


author: DUNKLIN, J. BUCK, J.

text:
    L. E. WHITHAM & CO. et al. v. BRIGGS.
    No. 12466.
    Court of Civil Appeals of Texas. Fort Worth.
    June 6, 1931.
    Rehearing Denied July 11, 1931.
    Milburn E. Nutt and Dawson & Holliday, all of Wichita Falls, for appellant.
    Mathis & Caldwell, of Wichita Falls, for appellee.
   DUNKLIN, J.

This is an appeal by L. E. Whitham & Co., defendant, from a judgment in favor of Mrs. Nora Briggs, canceling a purported improvement lien claimed by L. E. Whitham & Co. in its cross-action against lots 1 and 2, in block 88A of Highland Park addition to the city of Wichita Falls, owned by Mrs. Briggs, who instituted the suit to clear her title from the cloud arising from that claim.

The record shows that the defendant L. E. Whitham & Co. did certain improvements on the street on which the two lots abutted, under and in full compliance with a contract with the city council of the city of Wichita Falls, who passed the ordinance necessary to fix a lien on the abutting property, and which had the effect to create a lien on the lots in controversy, unless the same was defeated by the homestead exemption pleaded by Mrs. Briggs.

The cross-action of L. E. Whitham & Co. was upon a paving certificate issued by the city council which recites that a special assessment of a lien for cost of the improvement on the lots in controversy was made on August 30, 1926, and that the work was duly finished according to plaintiffs contract therefor. The uncontroverted evidence showed that Mrs. Briggs purchased the lots while they were vacant for the purpose of improving and occupying them as a homestead, and huilt a residence thereon during the latter part of 1918, in which she has lived as her home ever since. Some six weeks prior to the building of the house she placed a tent on the lots and occupied that as her place of residence until the house was finished. Her deed to the lots was dated February 13, 1918, and that was executed in consummation of a contract of purchase and' sale, on the monthly installment plan, dated some time during the year 1914. That contract of purchase was made by her after she had been divorced from her second husband, Moore. Her first husband was named Briggs, who died prior to her marriage to Moore. No children were born to her marriage with Moore, hut two children were born to her marriage with Briggs. James, the eldest, died, hut Elmer, the second son, is still living. He was born in Oklahoma, February 14, 1894. At the time Mrs. Briggs contracted for the lot in the year 1914, Elmer was living with her in the city of Gainesville, * and was then less than 21 years of age and unmarried. She bought the lots for no other purpose except for a home for herself and Elmer. Her contract of purchase of the lots was on the partial payment plan, the first installment being paid at the time the contract was executed. By reason of her poverty and illness a portion of the time, she was unable to finish the payments and also meet taxes until February 13, 1918, when she acquired a deed to the property, but during that time she met those payments as best could from rentals of rooms in a house she had leased as a dwelling place until she could build a house on the lots in controversy; and throughout that period she had a definite fixed intention to make the property her home, and openly and publicly announced that intention to her friends and acquaintances. Her son, Elmer, continued to live with her as one of her family and to assist in defraying their household expenses out of his earnings until the year 1917, when he enlisted as a soldier in the World War and continued in that service for nearly two years. During his service his mother would send him money from time to time and after his return he lived with her for some three years when he married, and established his home in another town.. As soon as she got her deed to the lots, she built a residence thereon with money borrowed on a mechanics’ lien placed on the premises and has lived in that house, claiming it as her homestead, ever since. About six weeks before the house was built she placed a tent on the lots and lived in it until the house was finished.

Mrs. Briggs testified to the facts already recited, and further testified in part as follows:

“Before I moved on the lots in the tent, I had set out some trees and a few things like that on the lots — -you know the lots were just out there on the prairie.”

Other witnesses were introduced whose testimony corroborated that of Mrs. Briggs with respect to her asserted claim of homestead in the lots for a number of years prior to the time she moved into the tent; and one of those witnesses was Loraine Tucker, who, while a small child, occupied the tent with Mrs. Briggs during Elmer’s service in the army. When the street was paved Mrs. Briggs was occupying and claiming the property as her home, as she had done some six or seven years prior thereto, and before the ordinance was passed to improve the street one of the city’s agents requested her to sign a petition therefor, hut she refused to do so because of her inability to pay the assessment.

Appellant insists that although the son Elmer was a minor at the time the contract of purchase was entered into, and that, therefore, it may be said that Mrs. Briggs was then the head of a family, yet her mere intention to make the lots her homestead, coupled with her subsequent payments therefor, but without improvements until some four years later, was not sufficient to impress the lots with the homestead character; and that when the improvements were begun Mrs. Briggs was not then the head of a family, and therefore not protected by the constitutional homestead exemption.

We do not concur in that contention. It cannot be denied that the constitutional provisions exempting the homestead were designed for the protection of such persons as may be situated as was Mrs. Briggs. Indeed, her financial condition and her necessities appeal with special force for their application in her favor. In her straightened circumstances, her advanced age, ill health, and with no husband on whom she could lean for support, she certainly needed a home where she could pass the remaining years of her life free from molestation by creditors; and the opinions of our Supreme Court abound with repeated announcements that the exemption laws of our state will be liberally construed to accomplish the beneficent purpose for which they were intended. And in accord with that rule of construction, it is now well settled by our decisions that the homestead character will attach to vacant property that is purchased for use as a homestead and with a fixed intention to so use it, provided that the intention so formed is followed within a reasonable time by some character of work done or preparation made on the property which is sufficient to give notice that such intention will be later consummated by further improvements and occupancy of the property as a homestead. Just how soon such preliminary work or preparations shall occur depends upon the facts and circumstances in each instance. As indicated by the decisions, the purpose of requiring some preparatory work or improvement to be done is to give notice to others who might assert adverse Claims against the property, arising pri- or ■ to the beginning of improvements thereon. However, the appellant here occupies no such position. The city attempted to fix the paving assessment lien without the consent of Mrs. Briggs, over her objection thereto, while she was occupying and claiming the property as a home and some seven years after the house had been finished. Therefore, we conclude that the evidence was sufficient to show that the improvements made on the property were made within a reasonable time after Mrs. Briggs contracted to purchase the property, considering her ill health, financial circumstances, and needs; that she was the head of a family at the time she acquired that contract; that she contracted to purchase it with a definite fixed intention to use it as her homestead; and that, when the improvements were made, they should be held to relate back to the date of the initial purchase, and that the property was impressed with the homestead character as of that date,, as against plaintiff's alleged lien.

While we have been cited to no decision directly in point, we believe the following, among others which might be cited, are in accord with our conclusions: Espinoza v. Cocke (Tex. Com. App.) 276 S. W. 1095, 1096; Teller v. Fitch (Tex. Civ. App.) 281 S. W. 893; Jolesch & Chaska Co. v. Hampton (Tex. Civ. App.) 297 S. W. 271; Blum v. Gaines, 57 Tex. 119; Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.(2d) 35.

We quote the following from the opinion of the Commission of Appeals, in Espinoza v. Cocke, supra:

“A definite intention, in good faith, to occupy vacant property as a homestead by the head of a family who owns no other home is of .controlling force when such intention is accompanied by preparatory acts in connection with .the property definitely tending of themselves to show such intention and the good faith and reality thereof. Dobkins v. Kuykendall, 81 Tex. 183, 16 S. W. 743; Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033, 34 Am. St. Rep. 832.”

And the following is quoted from the syllabus of Blum v. Gaines, supra, and which was followed in Woods v. Alvarado State Bank, supra:

“When a homestead has been once acquired, the subsequent death, marriage or removal of all the individuals who composed the family, except the surviving husband, does not subject the homestead to forced sale under a judgment against him, he still occupying it as a home.”

Accordingly, all assignments of error are overruled, and the judgment of the trial court is affirmed.

BUCK, J.

(dissenting).

While my sympathies are aroused on behalf of the appellee, yet I do not think that the case ought to be decided on sympathy. As I understand the record, Mrs. Briggs contracted to buy this property in the year 1914, at which time the «only other constituent member of her family was a son then about twenty years, six month's, old. She made no effort to improve the property until after her son had become of age. I agree with the appellant in their contention that the mere intention to make the lots her homestead did not constitute the lots her homestead unless such intentions were coupled with some act of improvement of the lots, within the time when Mrs. Briggs was entitled to purchase a homestead, with the homestead exemption. When the improvements were begun, Mrs. Briggs was not then the head of the family, as her only son was of age. Therefore, I do not believe that Mrs. Briggs ever purchased a homestead, impressed with the homestead exemptions, while she was the head of the family.

I think the judgment should be reversed, and the cause remanded, or reversed, and the judgment rendered for appellant.


author: GREENWOOD, J.

text:
    WOODWARD et al. v. HARLIN.
    Motion No. 9665; No. 5580.
    Supreme Court of Texas.
    July 22, 1931.
    For former opinion, see 39 S.W.(2d) 8.
   GREENWOOD, J.

On motion for rehearing, attention is called to chapter 88, General Law's of the Thirty-Fourth Legislature, approved March 22, 1915, page 141, which confers on the county court of Dawson county “original concurrent jurisdiction with the justices’ courts in all civil matters.” Such an act appears to have been upheld as constitutional in Gulf, W. T. & P. Ry. Co. v. Fromme, 98 Tex. 462, 84 S. W. 1054. Under the statuté, the petition did state a cause of action within the jurisdiction of the county court of Dawson county for the recovery of $25.77, and we correct our statement to the contrary.

The right judgment was originally entered, and the motion for rehearing is overruled.


author: RYAN, J. CURETON, C. J.

text:
    MATTHEWSON v. FLUHMAN.
    No. 1285-5757.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    Storey, Leake & Storey, of Vernon, and Underwood, Johnson, Dooley & Simpson, of Amarillo, for plaintiff in error.
    Berry, Stokes, Warlick & Gossett, of Vernon, and Fitzgerald & Hatchitt, of Wichita Falls, for defendant in error.
   RYAN, J.

The petition of plaintiff in error (plaintiff in the court below) alleges, substantially, that: On November 5, 1924, Fritz Fluhman and his wife (the latter now deceased) made to E. G. Matthewson, a gas and oil lease on certain lands in Wilbarger county and which included a particular tract of 36.6 acres; that on or about February 26, 1926, at Fluhman’s solicitation, Matthewson released the lease on the 36.6-acre tract, in consideration of which and of Matthewson’s agreement to assist in procuring releases from certain other parties, of certain other leases on other tracts of land, Fluhman would execute to Matthew-son a commercial oil and gas lease, covering a term of three years, on a 20-aere tract adjacent to and north of the 36.6-acre tract, which agreement was entirely oral.

The petition alleges also, that relying upon such agreement on Fluhman’s part to execute such an oil and gas lease on the 20-acre tract, plaintiff on February 26,1926, without consideration, executed and delivered a release to the 36.6-acre tract, which was accepted by Fluhman and by him filed for record; that after securing said release, Fluhman refused to deliver to plaintiff an oil and gas lease on the 20-acre tract as he had promised and agreed, but afterwards, on or about August 7,1926, executed and delivered an oil and gas lease on said 20-acre tract to a third party, John F. Merrick. It was averred that therefore the release of the 36.6-acre tract was without consideration and of no force and effect; that specific performance of sueh oral contract is now impossible, because of the subsequent lease to Merrick.

The petition contains other averments, not necessary to repeat here.

Prayer is for damages in the sum of $200,-000 and legal interest, as the reasonable cash market value of the lease on the 36.6-acre lease so released by Matthewson, on December l, 1926, when Fluhman definitely refused to make the lease to the 20-acre tract, and, if not entitled to recover the value of said lease at that time, then for the sum of $80,000, and legal interest from December 1, 1926, as the reasonable cash market value of the 36.6-acre tract at the time of trial. In the alternative, plaintiff prayed for damages in the sum of $60,000, and legal interest from December 1, 1926, as the reasonable cash market value of the 20-acre lease at the time Fluhman definitely refused to make it, and, if not entitled to that recovery, then for the sum of $40,000 as the reasonable cash market value of the 20-acre lease at the time of trial, also “for costs of suit and all proper relief to which he may show himself entitled in law or in equity.”

Defendant answered by general and special exceptions, general denial, specially that the agreement in question rested in parol and is inhibited by the statute of frauds, and the abandonment by plaintiff of the original lease contract (which included the 36.6-aere tract) by the failure of plaintiff and his assignees to drill a well thereon to the full -depth of 2,200 feet and to pay certain rentals, as specified in said contract. Estoppel was also pleaded against plaintiff due to the 'fact, as alleged, that on February 26, 1926, when defendant received the release from plaintiff to the 36.6 acres, defendant offered to execute a lease at said time to plaintiff of 20 acres off his unleased land in the north part of same, notwithstanding he did not comply with his agreement, and plaintiff stated to defendant that he did not care for the lease on the 20 acres because he did not think it was worth anything, and thereafter defendant leased all of his acreage believing that plaintiff did not desire a lease on any of said unleased acreage in the north part of same, and, for said reason, plaintiff was estopped to sue defendant for damages as averred in his petition.

The case was submitted to a jury on special issues, resulting in the following findings:

(1)That defendant Fluhman agreed with plaintiff Matthewson to make him a lease on 20 acres of land lying immediately north of' the 36.6-acre tract, if plaintiff would release the latter tract and assist defendant in obtaining releases for certain other tracts; that defendant accepted plaintiff’s release of the 36.6-acre tract and the releases tendered him by plaintiff of other acreage covered in' the original 200 acres; that, at the time defendant accepted the release of the 36.6-acre tract, he promised plaintiff to make him a lease on the 20-acre tract immediately north • of the 36.6-acre tract, which promise was renewed by defendant from time to time thereafter, and relied on by plaintiff.

(2) That in December, 1926, defendant refused to deliver the lease of the 20-acre tract to plaintiff; that -the reasonable cash market value of the oil lease on the 36.6-acre tract was $50,000 in the early part of December, 1926, and was $25,000 at the date of trial, April 1929.

(3)' That the reasonable cash market value of the oil lease on the 20-aere tract'was $8,000 in the early part of December’ 1926, and was $2,000' at the date of trial.

(4) That the reasonable cash market value of the oil lease on the 36.6-acre tract was $366.60 in the latter part of February, 1926, and the reasonable cash market value of the 20-acre tract was $200 in the latter part of February, 1926.

(5) That the consideration for the lease of November 5, 1924, was plaintiff’s agreement to drill, or have drilled, upon the acreage covered thereby, a well to the depth of 2,200 feet, which was done by the Lippard Oil Company, and no complaint was made by defendant that said well had not been completed to the contract depth at the time he accepted the releases tendered by plaintiff, and he never demanded the procurement of any additional releases; that plaintiff did not-agree to procure releases .for the balance of the original 200 acres leased to him by Fluhman ; that plaintiff did not tell defendant that he did not care for the 20-aere lease.

(6) That when defendant promised to give plaintiff the 20-acre lease in question, in consideration of plaintiff releasing the 36.6-acre lease and assisting in getting up other releases, he (defendant) intended to carry out such promise.

The trial court accordingly rendered judgment against the defendant for $8,000 (value of the lease on the 20-acre tract in December, 1926, when defendant refused to deliver such a lease to plaintiff), with legal interest from date of judgment. ■

The Court of Civil Appeals reformed said judgment and adjudged to plaintiff the sum of $366.60, and affirmed the judgment, as so reformed, upon the theory (a) that the parol agreement of defendant to execute an oil and gas lease upon the 20-acre tract' was obnoxious to the statute of frauds, and no damages could be recovered based upon the value of such 20-acre lease, any more than an action for specific performance could be maintained; and (b) the only remedy open to plaintiff was to recover the value of the lease on the 36.6-acre tract, in the latter part of February, 1926, when plaintiff released same to defendant, in keeping with the agreement then made between them. 24 S.W.(2d) 751.

The questions for decision, therefore, are: Does the contract in question come within the statute of frauds (Rev. St. 1925, art; 3995, subd. 4) and, if not, what is the measure of damages for .its breach?

As said by Chief Justice. Cureton in Texas Co. v. Burkett, 117 Tex. 16, 296 S. W. 273, 279, 54 A. L. R. 1397: “The general rule is that, where one party to an oral contract has in reliance thereon so far performed his part of the agreement that it would be perpetrating a fraud on him to allow the other party to repudiate the contract and set up the statute of frauds in justification thereof, equity will regard the case as being removed from the operation of the statute, and will enforce the contract.”

And by Justice Gaines, in Morris v. Gaines, 82 Tex. 255, 17 S. W. 538, 539: “The doctrine is well established that where either party, in reliance upon the verbal promise of the other, has been induced to do or to forbear to do any act, and thereby, his position has been's<i_ changed for the worse that he would be defrauded by. a failure to carry out the contract, equity will enforce a performance.”

According to the jury’s findings,' Eluhman did intend to carry out his parol contract to lease the 20-acre tract in question to Mat-thewson at the time the latter released the 36.6⅛01-6 tract, that Eluhman intended to carry out this promise, which was renewed from time to time thereafter, and it was not until December, 1926, when he refused to deliver-such lease.

The fraud which is sufficient to oust the; operation of the statute of frauds in a transaction pertaining to real estate does not mean fraud in the sense of deliberate and conscious deceit,' but' a ■ fraud. inhering in the consequence of thus setting up the statute. When a 'verbal contract has been made, ahd one party has knowingly aided of permitted the other’ to go on and do acts in part performance' of the agreement; acts done in full reliance upon such agreement as a valid and binding contract, and which would not have been done without the agreement, and which are of such a nature as to change the relations of the parties and to prevent a restoration of their former condition and an adequate compensation for the loss by a legal judgment for”"damages, then it ’would be a virtual fraud in the first party to interpose the statute of frauds as a bar to a completion of the Contract, and thus to secure for himself all the benefits of the acts already done in part performance, while the other party would not only lose all advantage from the bargain, but would be left without adequate remedy for its failure or compensation for what he had done in pursuance of it. To prevent the success of such a palpable fraud, equity interposes under these circumstances and compels an entire completion of the contract by decreeing its specific' execution. Pomeroy Specific Performance of Contracts (3d Ed.) § 104.

The case of Hooks v. Bridgewater, 111 Tex. 122, 229 S. W. 1114, 15 A. L. R. 216, is relied on by defendant in error to sustain his contention that the agreement in question here is unenforceable because of the statute of frauds. There is no inconsistency between that case and the' conclusion wé have reached in this case.

In that case, the exception is recognized which would exempt a transaction from the statute, where one party has been led to change his position because of his relying upon the transaction, and it would amount to a fraud upon him to permit the other party to renounce the contract. ■

Here, the evidence shows that plaintiff in error, holding a recorded lease on the 36.6-acre tract, was induced to surrender it to defendant in error (whose purpose was to lease it to Merrick under the latter’s agreement to bring in an oil well), in consideration of defendant in error’s agreement to make lease of the 20-acre tract'to plaintiff in error. Plaintiff in error completed his part of the bargain, and, under the jury’s findings, defendant in error renewed his promises from time to time' and did not refuse to deliver the lease until December, 1926, after he had already disposed of the 20-acre tract by lease thereon to another party, rendering it impossible -to restore plaintiff in error to his position, and after a producing well on the 36.6-acre tract hád been brought'in by Merrick. '

As said by Justice Gould, in Ponce v. McWhorter, 50 Tex. 562, quoted with approval by Chief Justice Cureton, in Texas Co. v. Burkett, supra:

“The ground upon which such yerbal sales are enforced, notwithstanding the statute, is the prevention of fraud. (Ann. Berta Lodge v. Leverton) 42 Tex. 31, supra. The rule is thus by Justice Clifford in a recent case: ‘Where one of the two contracting parties has been induced or allowed to alter his position on the faith of such contract to such an extent that it would be fraud on the part of the other .party to set up its invalidity, courts, of equity hold that the clear proof of the contract and of the acts of part performance will take the case out of the operation of the statute, if the acts of part performance were already such as to show that they are properly referable to the parol agreement.’ Williams v. Morris, 5 Otto (95 U. S.) 457, 24 L. Ed. 360.
“The change of circumstances growing out of valuable improvements has been assumed to be such as to make it difficult or'impossible to restore the vendee to his position.”

A contract subject to the statute oi frauds is not void, but is merely voidable at the option of the party sought to be charged therewith. Crutchfield v. Donathon, 49 Tex. 691, 30 Am. Rep. 112; George v. Williamson (Tex. Com. App.) 23 S.W.(2d) 675; Graham v. Kesseler (Tex. Civ. App.) 192 S. W. 299.

The contract involved here, even if vulnerable to the statute of frauds, as contended by defendant in error, was valid and enforceable between the parties and subject to judicial enforcement, unless the defendant in error should elect to rely upon its voidable character under the statute of frauds, and when, for the first time, he repudiated it in December, 1926, it was then that his liability arose to do equity in the way of restitution, if the contract be subject to the statute, or settle in damages for its breach, if not subject to the statute.

In Phillips v. Herndon, 78 Tex. 378, 14 S. W. 857, 858, 22 Am. St. Rep. 59, the following rule announced in Hopkins v. Lee, 6 Wheat. 109, 5 L. Ed. 218, is approved, viz: “The rule is settled in this court that, in an action by the vendee for a breach of contract on the part of the vendor for not delivering the article, the measure of damages is its price at the time of the breach. The price, being settled by the contract, which is generally the case, makes no difference, nor ought it to make any; otherwise, the vendor, if the article has risen in value, would always have it in his power to discharge himself from his contract and put the enhanced value in his own pocket. Nor can it make any difference in principle whether the contract be for real or personal property, if the lands, as is the case here, have not been improved or built on. In both cases the vendee is entitled to have the thing agreed for at the contract price, and to sell it himself at its increased value.” In that case, it was further held that, on performance of his contract by payment of the purchase price, the vendee acquired the superior title and the vendor held the legal title in trust for him; and, upon breach of that trust by voluntary conveyance of the legal title to another, the vendor became liable to the vendee for such damages as resulted directly therefrom, certainly to the extent of its value at the time it was so appropriated.

In Boothe v. Fiest, 80 Tex. 141, 15 S. W. 799, Judge Gaines stated the rule to be that the measure of redress is the recovery in money of a sum equal to the value of the property at the time of conversion. That was a case where the grantee in, a deed, absolute on its face, but intended as a mortgage, conveyed the land to an innocent purchaser, and the beneficiary sued for compensation and not for the proceeds of the sale; it was held that under' the peculiar facts of that case, the general rule did not apply, but the measure of recovery would be the value of the land at the time of the trial.

Here, we have no such facts as will.take the case out of the general rule.

In Roberts & Corley v. McFadden, Weiss & Kyle, 32 Tex. Civ. App. 47, 74 S. W. 105, 110 (writ of error refused), it is said: “If a person contracts to convey a piece of land on a certain day for a certain price, and between the date of the contract and the day of performance he sells to another, thus putting it out of his power to convey, he is liable to the vendee for the loss of his bargain.”

Where the vendor acts in bad faith in failing or refusing to convey, or disables himself from conveying, .the purchaser’s recovery is not limited to the purchase price paid, with interest and expenses, but he is entitled to compensation for his actual loss, or, as sometimes expressed, damages for the loss of his bargain. 39 Cyc. 2108.

We have reached the conclusion that the contract to lease the 20-acre tract to plaintiff in error was enforceable, and that defendant in error, having himself placed it beyond his power to comply therewith, by conveying such lease to another, is liable for the value of such lease at the time he repudiated the same, which the jury found to be $8,000.

The defendant in error cannot accept the leasehold estate on the 36.6-acre tract pursuant to his parol contract of exchange, reap the large benefits therefrom by the obtaining of producing wells thereon under his lease to Merrick, in the meantime assuring plaintiff in error that he would live up to his agreement to convey the leasehold estate on the 20-acre tract, and then refuse to perform when the extraordinary value of such leasehold was proven by the outcome of events, without accounting for such value at the time of refusal.

We recommend that the judgment of the Court of Civil Appeals be reversed, and that of the trial court be affirmed.

CURETON, C. J.

Judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed, as recommended by the Commission of Appeals.


author: RYAN, J. CURETON, C. X

text:
    BELSER v. HERMAN HALE LUMBER CO.
    No. 1296-5782.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    Pouts, Amerman, Patterson & Moore and Jos. W. Moore, all of Houston, for plaintiff in error.
    King,-Wood & Morrow and Evan W. Burris, all of Houston, for defendant in error.
   RYAN, J.

The plaintiff in error sued the defendant in error to recover damages alleged to have been suffered by him, resulting from collision, at. night, with the unlighted and unguarded truck of defendant in error, which had been placed in a dangerous position on the public highway, between the cities of Houston and Hempstead.

The case was tried on special issues submitted to a jury, upon whose findings judgment was rendered for plaintiff in error for $9,545.75. This judgment was reversed, and the cause remanded to the trial court for a new trial, by the Court of Civil Appeals. 30 S.W.(2d) 409, 410.

An issue of fact in the case was whether or not the plaintiff, at the time of the collision, was in the act of passing an approaching motor vehicle at a rate of speed in excess of fifteen miles an hour, in violation of article 794 of the Penal Code, and if that was a proximate cause of the collision, which was pleaded as a defense, and the issue was submitted as follows:

“Special Issue No. 11 — Was the Hudson car which was being driven by L. M. Belser at the time and immediately preceding the collision with the truck, passing another motor vehicle then and there on the public highway coming in an opposite direction?”

—which the jury answered in the negative.

This was followed by special issues Nos. 12 and 13, as follows:

“Special Issue No. 12 — If you have answered the preceding issue in the affirmative, and only in that event, then answer:
“Was the plaintiff, L. M. Belser, at the time he was passing another motor vehicle, operating his automobile at a speed in excess of fifteen miles per hour?”
“Special Issue No. 13 — If you have answered the preceding issue in the affirmative, and only in that event, then answer:
' “Was such speed a proximate cause of plaintiff’s injuries, if any?”

—which were not answered by the jury.

No objection was made to the submission of said issues, but in the motion for new trial complaint is made that: (a) The jury’s negative answer to special issue No. 11 should be set aside, because there was no evidence to support such answer; and (b) that said answer is contrary to the great weight and preponderance of the evidence.

A majority of the Court of Civil Appeals concluded that the undisputed evidence showed plaintiff, Belser, was, at the time of the collision which resulted in his injury, driving his car at night along the highway at a speed of from 25 to 28 miles per hour; that at that time he was passing another car going in an opposite direction, and failed to reduce this speed to 15 miles per hour, and were therefore of the opinion that the trial court erred in not holding that Belser was guilty of negligence, as a matter of law, and in not so instructing the jury, and in not requiring the jury to find whether or not such negligence was a proximate cause of the collision, which, concurring with the negligence of appellant, resulted in the injury to ap-pellee of which he complains.

The majority of that court concluded: “In the absence of a finding of the jury that the speed at which appellee drove his ear along the highway under the attending circumstances, though in excess of the speed limit of 15 miles per hour when passing other motor vehicles, as fixed by law, was a proximate cause contributing to the collision, we are not prepared to hold that the court erred in not instructing a verdict in appellant’s favor. * * * The failure of the court to instruct the jury that appellee was guilty of negligence in the particulars above mentioned and his submitting the question to the jury for their determination and to follow such submission with an instruction that, should they answer that appellee was not guilty in such particulars they need not answer the inquiry as to whether such negligence was a proximate cause of the collision, etc., in our opinion constitutes reversible error.”

The other member of that court, while concurring in the remand of the ease, disagreed with the reasons given by the majority. He was of the opinion that the undisputed evidence did not show that Belser was at the time of the collision engaged in passing another automobile going in the opposite direction, and, if it did not, the violation of Penal Code, art. 794, was not shown as a matter of law; therefore, an issue of fact was raised as to whether Belser was actually engaged in passing another car at the time of the collision, within the meaning of article 794, and consequently the trial court would not have been at' liberty to peremptorily charge the jury to the contrary. But while so holding, he thought that the jury’s finding under special issue No. 11 was against the weight of the evidence to the extent that it should not be permitted to stand, and this protest should have been sustained, rather than the one that was upheld.

We are asked by plaintiff in error to reverse the judgment of the Court of Civil Appeals and affirm that of the district court on the ground that there was evidence to support the submission of special issue No. 11 to the jury, and the jury’s finding thereon, and the Court of Civil Appeals erred in holding, in effect, that there was no such evidence.

As said by Judge Denman in Fifth National Bank v. Iron City National Bank, 92 Tex. 436, 49 S. W. 368, the Court of Civil Appeals has the power to reverse on the ground that in its opinion the evidence is not sufficient; and the Supreme Court has no power to review such action on such question of fact; it is only where that court goes further and holds that there is not any evidence that the Supreme Court can review that ruling, and then only to the.extent of determining the question of law whether there is any evidence.

We have reached the conclusion that the Court of Civil .Appeals erred in concluding, as a matter of law, that the undisputed evidence showed that Belser was driving the car at a rate of speed in excess of 15 miles per hour while passing another motor vehicle; we think there was sufficient evidence raising that issue to go to the jury.

Whether the jury’s finding on the subject is against the weight of the evidence to the extent that such finding should not be permitted to stand involves a question of fact, determinable by the Court of Civil Appeals, which is binding on the Supreme Court. Wilson v. Freeman, 108 Tex. 121, 185 S. W. 993, Ann. Cas. 1918D, 1203; 3 Tex. Jur. p. 1192. Where the Court of Civil Appeals concludes that the jury’s finding is against the weight of the evidence, it can only remand. Eastham v. Hunter, 98 Tex. 560, 86 S. W. 323; Electric Express Co. v. Ablon, 110 Tex. 235, 218 S. W. 1030.

As said by Judge Greenwood in Marshburn v. Stewart, 113 Tex. 507, 254 S. W. 942, 260 S. W. 565, 566:

“There is a difference in the authority o£ the Supreme Court in causes wherein the Court of Civil Appeals enters a final judgment by affirming that of the trial court or by rendering a different judgment, and in causes wherein the judgment of the trial court is reversed and the case remanded for a new trial. The distinction was stated with clearness and precision in Tweed v. Western Union Telegraph Co., 107 Tex. 255, 166 S. W. 696, 177 S. W. 957, as follows: ‘With the Court of Civil Appeals invested with the full power of determining the facts of the cause, and setting, aside the verdict of a jury on the facts, it must be assumed, * * * that in reaching a conclusion that the evidence showed as a matter of law that the plaintiff was not entitled to recover, and for that reason ordering that the cause be remanded, in the same case it would have held that the verdict was against the weight of .the evidence. With a case thus remanded under the judgment of the Court of Civil Appeals, it would amount to a denial of its authority to determine the facts and set aside a verdict on the evidence for this court to assume the power of rendering the judgment because it differed with the conclusion reached by that court upon the effect of the evidence.
“ ‘Beck v. Texas Company, 105 Tex. 303, 148 S. W. 295, furnishes no analogy. The distinction between that case and this one is manifest. There the court did not exercise the authority it possessed to set aside the verdict on the facts and remand the cause. It rendered judgment in favor of the defendant on the facts; and in doing so made no finding of fact which would defeat recovery. In differing with the Court of Civil Appeals upon the question of law as to the effect of the evidence, we were authorized to affirm the judgment of the lower court, since the Court of Civil Appeals had not sought to exercise its province of determining the facts and ordering the case remanded for another trial because of its difference with the jury on the facts, and- in affirming the judgment we therefore in no wise trenched upon its authority. Had the Court of Civil Appeals there remanded the case instead of rendering judgment,.we would have been compelled to respect its judgment to that extent and could not have affirmed the trial court judgment.’ ”

We therefore have no authority to render judgment here for plaintiff in error or to affirm the judgment of the district court. Maddox Motor Co. v. Ford Motor Co. (Tex. Com. App.) 23 S.W.(2d) 333.

The Court of Civil Appeals having remanded the cause, its judgment to that extent must he respected.

We therefore recommend that the judgment of the Court of Civil Appeals, which reversed the judgment below and remanded the cause for a new trial, be affirmed.

CURETON, C. X

The judgment of the Court of Civil Appeals reversing the judgment of the district court is affirmed, as recommended by the Commission of Appeals.


author: SHARP, J. CURETON, C. J.

text:
    FEDERAL SURETY CO. v. SMITH.
    No. 1472-5710.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.

      Hyer & Christian and A. W. Christian, all of Fort Worth, for plaintiff in error.
    H. T. Cooper and W. D. Smith, both of Fort Worth, and A. E. McCord, of Peoria, Ill., for defendant in error.
   SHARP, J.

Marshall H. Smith instituted this suit against the Federal Surety Company upon a policy issued by the company to Smith, alleging that while the policy was in full force and effect he sustained an injury, and he claimed the full weekly accident indemnity of $37.50 from and after tne date of his injury upon allegations that his injury had resulted in total disability within the meaning of part 2 of the policy.

The case was submitted to a jury upon special issues, and judgment was entered in favor of the plaintiff against the defendant for the sum of $3,723.49. The Federal Surety Com-, pany made an appeal from the judgment of the trial court to the Court of Civil Appeals and that court affirmed the judgment. 25 S. W.(2d) 994. We refer to that opinion for a more detailed statement of the case.

The Federal Surety Company applied for a writ of error, which was granted.

Plaintiff in error contends:

(a) That the policy of insurance having required as a condition precedent to recovery of indemnity that proofs of loss be furnished, and proofs of loss having been furnished for only the period of time from the date of the injury up to and including June 2, 1926, it was error for the Court of Civil Appeals to hold that, plaintiff was entitled to indemnity up to and including May 18, 1928; and

(b) That it was error for the Court of Civil-Appeals to hold that the mere failure of defendant to pay indemnity upon the proofs of loss that were furnished constituted denial of liability on the part of defendant and the waiver of additional proofs of loss, there having- been no testimony of any word or act on the part of the defendant denying its liability' under the policy.

The policy issued, among other things, contained the following provisions:

“4.' Written notice of injury or of sickness on which claim may be based must be given to the Company as soon as practicable after the date of the accident causing such injury or after the commencement of disability from such sickness. In event of accidental death immediate notice thereof should be given to the Company.”
“7. Affirmative proof of loss must be furnished to the Company at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the Company is liable, and in case of claim for any other loss, within ninety days after the date of such loss.”
“10. Upon request of the Insured and subject to due proof of loss all accrued indemnity for loss of time on account of disability will be paid at the expiration of each sixty days-during the continuance of the period for which the Company is liable, and any balance remaining unpaid at the termination of such period will be paid immediately upon' receipt of due proof.”
“14. No action at law or in equity shall be brought to recover on this policy prior to the expiration of forty days after proof of loss has been filed in accordance with the requirements of this policy, nor shall such action be brought at all unless brought within one year from the expiration of the time when a cause of action for the loss accrues.
“15. If at any time limitation of this policy with respect to giving notice of claim or furnishing proof of loss is less than that permitted by the law of the state in which .the Insured resides at thfe time this policy is issued, such limitation is hereby extended to agree with the minimum period permitted by such law.”

In the plea in abatement defendant alleged that plaintiff had not complied with the provisions of paragraph 7 to the effect that proof of loss must be furnished to the company within ninety days after the termination of the period for which the company was liable, nor had the plaintiff, in compliance with paragraph 10, requested payment on account of disability at the expiration of each sixty days during the continuance of the period for which the company might be liable, nor had the plaintiff executed and delivered to-defendant due proof of loss as a prerequisite to such payment at intervals of sixty days each, as required by paragraph 10; that under the provisions of paragraph 14 no action at law or in equity might be brought to recover on said policy prior to the expiration of forty days after proof of loss had 'been filed in accord-. anee with the aforesaid requirements, so that plaintiff, having failed to file such proof of loss, had no right to bring such action, and this suit on the policy, was premature, and should be abated and dismissed.

Plaintiff alleged that, written notice of the injury received by him was given defendant as soon as practicable after the date, to wit, within ten days thereafter, and new proof of said accident and disábility was furnished the defendant within reasonable time after said accident, to wit, within forty days thereafter, and demanded of defendant the indemnity to which he was entitled under the provisions of the policy, but that defendant failed and refused to pay plaintiff any indemnity whatsoever.

Plaintiff filed an amended petition on May 16, 1928, and alleged therein, in substance, that he had been disabled continuously up to and including that date. The record shows that plaintiff received his injuries on December 23,1925; that he furnished proofs of loss on January 2S, 1926, on February 7, 1926, on April 27, 1926, and on June 2, 1926. These were the only proofs of loss that were furnished by plaintiff. However, plaintiff in er-. ror does not question the sufficiency of the proofs of loss furnished on the dates above mentioned, but does question the soundness of the contention made that they are sufficient upon which to base a judgment for claims made for loss of time from disability after June 2,1926.

The question as to whether proofs of loss had been furnished by plaintiff was not submitted to the jury. The trial court, however, made an express finding that proofs of loss had been furnished in the following language: “That within the time prescribed by said policy of insurance, the plaintiff gave notice to defendant of said injury, and furnished to defendant affirmative proof .of the said injury and of the disability resulting therefrom, and made demand upon defendant for the indemnity provided for by said policy.”

The foregoing finding was incorporated in the judgment entered by the trial court, and that court rendered judgment in favor of the plaintiff against the defendant for compensation from December 23, 1925, to May 18, 1928. There being no contention that plaintiff had not complied with the terms of the policy in furnishing the defendant proofs of loss for loss of time from disability from December 23, 1925, to June 2, 1926, the trial court correctly held as a matter of law that sufficient notices of proof of loss for loss of time from disability during those dates were furnished by plaintiff to defendant. The testimony being undisputed, that was not an issue to be submitted to the jury.

No issue as to whether proofs of loss had been waived by the insurance company for loss of time from disability after June 2, 1926, was submitted to the jury, nor was there any request for it to be submitted. Defendant moved for a peremptory instruction in its favor which was refused. The trial court did not find that there had been a waiver of proof of loss by the insurance company, nor do we think that under the facts introduced in this case the trial court would have been warranted in finding as a matter of law that the insurance company had waived the proofs of loss. It can only become a question of law when the facts and circumstances are such that but one reasonable conclusion can be drawn therefrom.

We are of the opinion that taking the entire testimony, as shown from this record, in its most favorable light, it is not shown, unless it be inferred by mere silence on the part of the insurance company in receiving and retaining the proofs of loss sent in, that the company waived the provisions of the policy requiring proofs of loss to be furnished.

In the case of Wirtz v. Sovereign Camp, W. O. W., 114 Tex. 478, 268 S. W. 438, 441, it is said: “Waiver presupposes full knowledge of existing right, while estoppel arises where by fault of one, another has been induced to change his position for the worse.”

It is firmly settled in the decisions of this state- that if the contract of insurance is expressed in plain and unambiguous language, tbe courts will not undertake to construe the language otherwise than the parties themselves intended that it should be.

It is a further well-recognized rule that an insurance company has the right to stipulate that proofs of loss be furnished within a reasonable time and upon reasonable terms and to provide certain conditions to enforce a compliance with such provisions.

If the injuries of the insured disabled him from the performance of his labors from December 23, 1925, to May 18, 1928, the policy required that he make written proof of such disability to the insurer. Such provisions above copied are not void under our laws. Delaware Underwriters & Westchester Fire Ins. Co. v. Brock, 109 Tex. 425, 211 S. W. 779; Burns v. American Nat. Ins. Co. (Tex. Com. App.) 280 S. W. 762; American Nat. Ins. Co. v. Burns (Tex. Civ. App.) 273 S. W. 339; Texas Glass & Paint Co. v. Fid. & Dep. Co. (Tex. Com. App.) 244 S. W. 113; Traveler’s Ins. Co. v. Scott (Tex. Civ. App.) 218 S. W. 53; Southern Casualty Co. v. Landry (Tex. Civ. App.) 266 S. W. 804; American Surety Co. v. Blaine (Tex. Civ. App.) 272 S. W. 828.

There is nothing illegal in such contract. It was the duty of the insured, if he desired to avoid the provisions of the policy, to show a waiver or a substantial compliance with the terms of the insurance policy. The policy required the insured to furnish proofs of loss within a specified time, and it is held that a compliance with the requirement is a condition precedent to a recovery, unless waived by the company. The Sun Mutual Insurance Co. v. Mattingly, 77 Tex. 162, 13 S. W. 1016; Scottish Union & National Insurance Co. v. Clancy, 71 Tex. 5, 8 S. W. 630; Scottish Union & National Insurance Co. v. Clancy, 83 Tex. 113, 18 S. W. 439.

The law places the burden of proving all the essential elements of a waiver on the plaintiff. The burden rested upon plaintiff to allege and prove that he had complied with the provisions of the policy with reference to the furnishing of proofs of loss as a condition precedent to a recovery or show that the insurance company had by its acts waived a compliance therewith. The testimony is undisputed that plaintiff was injured on December 23, 1925, and that he furnished proofs of loss for a period of time from January 28, 1926, to June 2, 1926. It is not contended that he furnished any other proofs of loss after that time. To meet the contention made by the insurance company that plaintiff had failed to comply with the provisions of the policy by furnishing proofs of loss, it is contended that the company, by receiving the proofs of loss and failing to pay for the injuries for which the proofs were furnished, constituted a waiver, as to the requirement that other proofs of loss be furnished as stipulated in the policy.

The rule is unquestioned in this state that where the insurance company denies liability under the terms of the policy, that a compliance with the policy to furnish proofs of loss is waived and a recovery may be had thereon without furnishing such proofs: Sun Mutual Insurance Co. v. Mattingly, 77 Tex. 162, 13 S. W. 1016; East Texas Fire Ins. Co. v. Coffee, 61 Tex. 287.

The rule is stated, and seems to be based upon sound authority, that mere silence of the insurer, even with knowledge of the loss and failure of insured to file proofs of loss within the required time, will not constitute a waiver thereof, as a matter of law. Cooley’s Briefs on Insurance, vol. 7 (2d Ed.) p. 5992; 14 R. C. L. p. 1347, § 519.

However, the testimony shows that on the dates aforesaid plaintiff furnished the defendant the proofs of loss with respect to his' claims under the policy and .that the company received and retained the proofs without any complaint and failed and refused to pay plaintiff for the amounts described therein. Defendant in error contends, under all the facts, that after furnishing the proofs of loss to the company, as he did, and not hearing from the company, and the company failing to pay him for the proofs already made, that he had the right to conclude that the company intended to deny liability under the provisions of the policy, and therefore he did not furnish additional proofs of loss. We think that if the insured, in good faith, and within the stipulated time, does what he plainly intends as a compliance with the requirements of his policy with respect to the proof of loss, and if the company, on receiving the proofs of loss furnished, and by its acts and continued silence, may so mislead the insured to his disadvantage, believing that it had denied liability under the terms of the policy, this wouid be sufficient evidence to raise the issue of waiver by estoppel. Therefore, it would become a question of fact to be determined. Cooley’s Briefs on Insurance, vol. 5 (2d Ed.) pp. 4563, 4564, 4565, 4566; North River Ins. Co. v. Rippy (Tex. Civ. App.) 23 S.W.(2d) 853, 854; Hayden v. Houghton (Tex. Civ. App.) 24 S. W. 803; Missouri, K. & T. Ry. Co. v. Hendricks, 49 Tex. Civ. App. 314, 108 S. W. 745 (writ of error refused).

It is now the settled rule in this state that where special issues have been submitted to the jury and findings made thereon, that the trial court, under the statutes and decisions, if the facts justify it, could find on such omitted issues as are in accord with and supplemental or incidental to and which supports the issues of fact which were submitted and found by ■ the jury and upon which the judgment is based; but' that the trial court would not have authority to make findings upon independent grounds of recovery or grounds of defense wholly neglected and ignored by the parties to the suit and support a judgment upon such findings in the face of the issues submitted, and regardless of the findings by the jury. Such issues are held to have been waived. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084; Dallas Hotel Co. v. Davison (Tex. Com. App.) 23 S.W.(2d) 708; Bulin v. Smith (Tex. Com. App.) 1 S.W. (2d) 591.

We are of the opinion that the evidence raised the issue of waiver on the part of the insurance company; that this was an ultimate issue to be passed upon by the jury; that a finding thereon by the jury was necessary before a valid' judgment could be rendered against the insurance company for claims made for loss of time from disability after June 2,1926; that this issue should have been submitted to the jury and a finding by them made thereon; and that the trial court, under the facts of this ease, had no authority to enter the judgment rendered. The trial court could have entered judgment for the amount claimed under the proofs of loss actually furnished, but it did not do so, but included other items not justified by the findings made to the issues submitted to the jury. Therefore, the judgment of the trial court is not supported by the verdict, there being no finding by the jury upon the issue of waiver of the proofs of loss on the part of the insurance company, and such finding being necessary to support the judgment for the amount rendered against it.

We sustain the foregoing contention.

Plaintiff in error contends that special issue No. 1 in the court’s charge was multifarious, in that it combined three issues of fact, to wit:

(a) Whether plaintiff was disabled solely from the injury complained of;

(b) Whether he was disabled at once and continuously after the occurrence of the injury ; and

(c) Whether he was totally aisabled.

Question No. 1 reads as follows: “Was or was not the plaintiff solely, from the injury complained of, at once and continuously, after the occurrence of the same, totally disabled for any period of time? Answer ‘yes’ or ‘no.’ ”

It is insisted that the foregoing question is condemned in the opinion rendered in Lumbermen’s Reciprocal Association v. Wilmoth (Tex. Com. App.) 12 S.W.(2d) 972, 973, and other decisions cited.

The issue involved in that opinion reads as follows: “Was or not the injury received by G. T. Wilmoth such as to .totally and permanently incapacitate him from following any gainful occupation?”

It was held in that ease that article 2189, R. S. 1925, requires the special issue shall be submitted distinctly and separately; that the issue submitted in that ease did violate the provisions of the statute. It was held that the issue combined two separate and distinct questions of fact, one of which might be answered by the jury in the affirmative, and the other in the negative, or vice versa. It was further held that “a disability may be total, but temporary, or it may be permanent, but partial. The questions as to the totality of the incapacity and the duration of the injury should have been submitted as separate issues.” The question as to whether the disability was such as to totally and permanently incapacitate the insured is not involved here. The question submitted in this case was limited to the question as to whether or not plaintiff was totally disabled for any period of time caused solely from the injury complained of.

Since the case will be reversed and remanded for a new trial, we think it proper to call attention to the wording of this and other issues submitted by the court to the jury. The use of the words “was or was not the plaintiff solely” injured, etc., in the question, followed by instructions for the jury to answer same “yes” or “no,” is confusing. The question in its form cannot be answered categorically “yes” or “no” and leave the meaning of the answer free of all uncertainty. It is true when considered in the light of the answers made by the jury to the other questions it is sufficient to support a judgment.

The better practice would be to so frame-the questions in such a manner as not to leave the answers of the jury in doubt as to what was intended.

In view of the frequency with which we are called upon to determine the correctness of the form of special issues, we desire to suggest that the least objectionable method of procedure is for the trial court to propound the question to be submitted in the form, “Do you find from the preponderance of the evidence that” (following with the question to be determined), so framing the question, upon each issue, as to place the burden of proof where it properly belongs.

We forego a discussion of- the other assignments raised, because they will not likely arise during another trial.

We therefore recommend that both the judgments of the trial court and the Court of Civil Appeals be reversed and this cause be remanded to the district court for another trial in accordance with this opinion.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and the cause remanded, as recommended by tbe Oom-mission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.