text:
    Rosco S. CLAYBROOK et ux., Appellants, v. W. M. ACREMAN et al., Appellees.
    No. 6636.
    Court of Civil Appeals of Texas. Beaumont
    Oct. 31, 1963.
    Rehearing Denied Nov. 20, 1963.

      Fulmer, Fairchild & Badders, Nacogdo-ches, for appellants.
    McClain & Harrell, Conroe, for appellees.
   STEPHENSON, Justice.

This is an action for damages for personal injuries sustained by plaintiffs in a collision between a pickup truck and an automobile. Judgment was rendered for defendants based upon the answers of the jury to special issues.

Plaintiff Rosco Claybrook was driving the pickup truck with plaintiff, Ethel Clay-brook, his wife, riding with him. Defendant Billy Joe Acreman, a minor, was driving the automobile. Liability was also sought against defendant, W. M. Acreman, his father, on the theory of negligent en-trustment.

The jury found the defendant, Billy Joe Acreman, to be driving his automobile in excess of 60 miles per hour, and that it was a proximate cause of the collision. Also, that this defendant was driving at a rate of speed in excess of that which a person of ordinary prudence would have driven under the same or similar circumstances, which was a proximate cause of the collision. That this defendant was not negligent in driving so that his automobile was wholly or partly over on his left side of Highway 105 at the time of the collision. That this defendant was a reckless driver, but his father had no notice of such state of facts. That plaintiff Rosco Claybrook failed to keep his truck entirely upon his right hand side of the road, which was negligence and a proximate cause of the collision. That this plaintiff drove his truck across the center line of the highway on the defendant’s right hand side of the highway for the purpose of making a left turn, which was negligence and a proximate cause of the collision. That this plaintiff failed to keep a proper lookout which was a proximate cause of the collision. That this plaintiff failed to yield the right-of-way to defendant’s automobile, which was negligence and a proximate cause of the collision. That the collision was not an unavoidable accident. That this plaintiff was not guilty of several other acts of negligence as submitted.

Plaintiffs’ pickup truck and defendant’s automobile were traveling in opposite directions upon the highway. It is clear from the pleadings, evidence and issues that defendant’s theory of the case was that plaintiffs’ pickup truck was driven onto the wrong side of the highway to make a left turn off of the highway and when the driver saw he could not clear the path of defendant’s car in time to avoid an accident, that plaintiff attempted to drive the pickup truck back to the right side of the highway, when the collision occurred. Plaintiffs contend first that the trial court erred in submitting certain special issues to the jury for the reasons that four of the issues commented on the weight of the evidence, by assuming disputed facts, and the fifth was a shade of another issue and unduly emphasized the defendant’s theory of the case. Special Issue #12 read as follows:

“Do you find from a preponderance of the evidence that, prior to the accident in question, Rosco S. Claybrook failed to keep his pickup truck entirely upon his right-hand side of the road toward the direction in which he was traveling as he proceeded Eastwardly upon leaving the trading post ?
“Answer ‘We do’ or ‘We do not’.
“ANSWER: ‘We do’.”

Special Issue #15 read as follows:

“Do you find from a preponderance of the evidence that Rosco S. Clay-brook, prior to the collision in question, drove his pickup truck across the center line of the highway onto Defendant’s right-hand side of the highway for the purpose of making a left turn?
“Answer ‘We do’ or ‘We do not’.
“ANSWER: ‘We do’.”

Plaintiffs contend the court erred in submitting Issue #15 because it was another shade of the inquiry contained in Issue #12, and therefore commented on the weight of the evidence by unduly emphasizing defendant’s theory that plaintiffs’ vehicle was in its left lane. These two issues submit shades of the same defensive theory to the jury and therefore are objectionable. Texas & Pacific Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280; Covington v. Howard, Tex.Civ.App., 347 S.W.2d 802.

The four issues complained of as commenting on the weight of the evidence, by assuming disputed facts, were #15 which is set out above, and the following:

Special Issue #18
“Do you find from a preponderance of the evidence that Plaintiff, after having driven into the lane for Westbound traffic, if that you have so found, failed to accelerate the speed of his vehicle so as to clear the highway and move to the road leading to the Johnson home?
“Answer ‘We do’ or ‘We do not’.
“ANSWER: ‘We do’.”
Special Issue #24
“Do you find from a preponderance of the evidence that Plaintiff, on the occasion in question, immediately prior to the collision, suddenly drove his pick-up truck to his right across the highway to the South, when such movement could not be made in safety?
“Answer ‘We do’ or ‘We do not’.
“ANSWER: ‘We do’.”
Special Issue #38
“Do you find from a preponderance of the evidence that on the occasion in question, Rosco S. Claybrook failed to yield the right-of-way to the Acreman vehicle ?
“Answer ‘We do’ or ‘We do not’.
“ANSWER: ‘We do’.”

It is urged that the phrase in Issue #15 “for the purpose of making a left turn” assumed plaintiffs’ vehicle was in its left hand lane because plaintiffs were turning left to visit the Johnson home; that the phrase in Issue #18 “and move to the road leading to the Johnson home” assumed that plaintiffs’ vehicle was in its left hand lane because plaintiffs were turning left to visit the Johnson home; that Issue #24 assumed plaintiffs’ vehicle was in its left hand lane; that Issue #38 assumed defendant had the right-of-way and therefore plaintiffs’ vehicle was in the wrong lane.

It is apparent that Special Issue #24 assumes the plaintiffs’ pickup truck was on the left hand side of the highway, and therefore is improper in assuming a disputed issue.

The trial court should have defined “right-of-way” for the jury with an issue preceding #38 inquiring about the specific type of “right-of-way” contended for. As submitted, the issue assumes the defendant had the right-of-way. The objection to each of these issues pointed out their vices, and by overruling the objection the plaintiffs were deprived of their right to have each of the issues submitted separately as granted them by Rule 277, Texas Rules of Civil Procedure. Johnson v. Zurich Gen. Accd’t & Liab. Ins. Co., 146 Tex. 232, 205 S.W.2d 353.

The plaintiff contends the trial court erred in sustaining defendant’s objection to a portion of the jury argument. Counsel for plaintiffs made the following argument:

“Ladies and 'Gentlemen, the witness, Turner, the testimony developed, not only was present in the automobile under the circumstances I have just outlined, but was a friend of Billy Joe Acreman’s, and, therefore, clearly more available as a witness to the defendant, Billy Joe Acreman, than to the plaintiffs, who were strangers to him. It was further developed that Billy Joe Acreman and his lawyer talked to the witness Turner in the courtroom after this case began, and you have not heard his testimony yet, and from that, I submit, you can draw only one reasonable inference, and that is that Melvin Turner would not support the testimony of Billy Joe Acreman concerning the facts surrounding this accident, and that was the reason why * * * ”

Upon objection tbe court instructed the jury not to consider this argument for any purpose.

Our courts have uniformly held that the omission of a party to produce important testimony relating to a fact of which he has knowledge, and which is purely within his control, raises the presumption that the testimony, if produced, would be unfavorable. A review of the cases on this point has brought us to these conclusions: First, an attorney may comment upon the failure of his adversary to call as a witness a person who was in his employ at the time the cause of action arose, if such person was in a position to acquire material information. Second, if the missing witness referred to is not an employee, then he must stand in some special position to such adverse party to predispose him to favor such adverse party. And, third, the word “available” does not mean that the missing witness must be within the jurisdiction of the court so that he can be reached by subpoena, but means that the witness can be located so that he can either be served by a subpoena or his testimony secured by deposition. Tex Jersey Oil Corp. v. Beck, 157 Tex. 541, 305 S.W.2d 162, 68 A.L.R.2d 1062.

Applying these rules to the present case, the question to determine is whether Melvin Turner, the witness commented about, stood in such a special position to the defendant, Billy Joe Acreman, as to predispose Turner to favor Acreman. The testimony showed Melvin Turner and Billy Case were riding in the front seat of the automobile with Billy Joe Acreman at the time of the collision. That Melvin Turner was a close friend to Billy Joe Acreman. That Melvin Turner was present in the courtroom during a part of this trial.

We conclude these facts bring this case within the rule and because of the special relationship between this witness and the defendant, that is, close friendship, coupled with the witness’s availability to testify, and the fact that this witness was obviously in a position to obtain material information about the points at issue in the case, the comment made by the plaintiffs’ attorney was proper. Because of the close friendship this witness would be presumed to be predisposed to favor Billy Joe Acreman, and it was legitimate argument to comment upon the unexplained failure of defendants to call him as a witness.

Plaintiffs also complain of the action of the trial court in refusing to permit two witnesses to testify as to statements made just prior to the collision. The evidence showed these two witneses, together with four other persons, were sitting in an automobile at the side of the road about a mile from the place the collision occurred. They each testified the defendant, Billy Joe Acreman, was racing another car down the highway at the time he passed them. They were not permitted to relate the comments made by the occupants of the car at the time. The bills of exception show these comments made were as follows:

“ * * * they won’t last long at that rate of speed * * * there goes Billy Joe Acreman * * * they won’t last long at that rate, that rate of speed. * * * Yeah, they’re really pouring the oil on them * * * yeah, that boy in the black car is sure giving him a run for his money.”

The counsel for defendants objected on the ground that any comments made would be hearsay. These comments spontaneously made at the time the defendant Billy Joe Acreman passed only a few seconds before the collision were a part of the “res gestae” and should have been admitted in evidence. Houston Oxygen Co., Inc. v. Davis, 139 Tex. 1, 161 S.W.2d 474, 140 A.L.R. 868.

We have concluded the errors above discussed amounted to such denial of the rights of plaintiffs as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in this case. We hold that each of these errors was reversible error. We also hold the cumulative effect of all of these errors, under the facts and circumstances of this case, constitute reversible error. Scott v. McLennan County, Tex.Civ.App., 306 S.W.2d 943.

Reversed and remanded.


source: Caselaw Access Project

author: RENFRO, Justice.

license: Public Domain

text:
    A. J. BOWMAN et ux., Appellants, v. Millard HENSLEE, Appellee.
    No. 16465.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 15, 1963.
    Rehearing Denied Dec. 13, 1963.
    Sam Cleveland, Stephenville, for appellants.
    C. O. McMillan, Stephenville, for ap-pellee.
   RENFRO, Justice.

Plaintiffs A. J. Bowman and wife sued defendant Henslee to establish their right, under the law of implied easement and implied grant, to continue use of a certain roadway.

Summary judgment was rendered for defendant.

At one time the land now owned separately by plaintiffs and defendant was owned jointly by F. A. Jones and Martin White. Jones and White established the road in question. It ran from a farm to market road to the Brazos River.

When White died, Jones and the White heirs, by deeds dated December 5, 1959, partitioned the land jointly owned by them. Plaintiffs are now the owners of the White land and defendant is owner of the Jones land.

When partitioned, a short stretch of the road, in order to avoid a deep ravine, remained on the defendant’s land as originally constructed. At the river end of the land the road again entered defendant’s land to approach the river from a bluff on plaintiffs’ side of the property line.

Plaintiffs’ pleading and answer to the motion for summary judgment alleged that on Dec. 5, 1959, and prior thereto, the road in question was then in existence and in use, it was the only road across said land and the only road by which the Brazos River could be reached, it was of a permanent character, open, visible, and plain to be seen on the ground, the continuing use of said road was of a reasonable and obvious necessity for the convenient use and enjoyment of the land conveyed to the White heirs, and was the only road in existence across the land.

We believe the motion for summary judgment should have been denied and the plaintiffs should have been given a trial on the merits in order to attempt to prove the allegations made.

In Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163, the Supreme Court held: “It is universally recognized that where the owner of a single area of land conveys away part of it, the circumstances attending the conveyance may themselves, without aid of language in the deed, and indeed sometimes in spite of such language, cause an easement to arise as between the two parcels thus created — not only in favor of the parcel granted (“implied grant”) but also in favor of the one remaining in the ownership of the grantor (“implied reservation”). The basis of the doctrine is that the law reads into the instrument that which the circumstances show both grantor and grantee must have intended, had they given the obvious facts of the transaction proper consideration. And in the case of an implied reservation it is not necessarily a bar to its creation that the grantor’s deed, into which the law reads it, actually warrants the servient tract thereby conveyed to be free of incumbrance.”

It is conceded that the road in question was located, established and used by Jones and White before the land was partitioned.

In the early case of Howell v. Estes, 71 Tex. 690, 12 S.W. 62, the Supreme Court held: “We think the weight of authority sustains the proposition that if an improvement constructed over, under, or upon one parcel of land for the convenient use and enjoyment of another contiguous parcel by the owner of both be open and usable and permanent in its character, and of such a nature as does not require the act of man to perfect or indicate its use, and the owner alienates the latter, the use of such improvement will pass as an easement, although it may not be absolutely necessary to the enjoyment of the estate conveyed. * * * he should not be permitted to deny the use of open and usable improvements, which, without alterations involving labor and expense, are necessary to the use of the property granted. The estate retained by him being used by him at the time of the grant for the benefit of the other, by means of an obvious artificial conveyance, and such use being necessary to the enjoyment of the latter in its existing condition, it is to be presumed that he intended to convey the estate accompanied by the easement.”

The question whether the plaintiffs will be able to establish an implied easement to the road by a preponderance of evidence of probative force is of course not before us.

We merely hold that the pleadings and affidavits present material issues of material fact bearing on the question of plaintiffs’ right to use of the road and they should be given a trial on the merits.

The judgment of the trial court is reversed and the cause remanded for trial.

Reversed and remanded.


author: PHILLIPS, Justice. HUGHES, Justice

text:
    Paul M. McCARTY, Appellant, v. Windell Ford PURSER et al., Appellees.
    No. 11125.
    Court of Civil Appeals of Texas. Austin.
    Nov. 20, 1963.
    Rehearing Denied Dec. 11, 1963.

      Byrd, Davis & Eisenberg, Austin, for appellant.
    Gay & Meyers, Austin, for appellees.
   PHILLIPS, Justice.

This is a suit for personal injuries brought by appellant, Captain Paul M. McCarty, hereinafter referred to as plaintiff, against Doris Purser, hereinafter referred to as defendant Purser, and Colonel Forrest Jewel, hereinafter referred to as defendant Jewel.

W. F. Purser, the husband of Doris Purser, was joined in the suit only as a formal party and no appeal has been taken from the judgment in favor of defendant Jewel.

The collision made the basis of this suit occurred on November 11, 1959, on the Officer’s Club parking lot at Bergstrom Air Force Base. At the time of the collision defendant Purser was driving an airforce pickup truck which had been assigned to defendant Jewel. The pickup struck the plaintiff while he was standing by his automobile. As a result of the collision the plaintiff was injured.

After a jury trial judgment was entered for defendants Purser and Jewel.

The judgment of the Trial Court is reversed and the case is remanded for a new trial.

The facts developed at the trial are substantially as follows: On the evening preceding his injuries plaintiff and defendant Purser had been to a party at the Officer’s Club at Bergstrom Air Force Base. Defendant Jewel and defendant’s witness one Rufus Harris also attended. At the conclusion of the party all four left at approximately the same time. There was no contention that anyone was intoxicated.

The plaintiff, defendant Purser (who had driven her own automobile to the Base) and Harris were proceeding to their respective automobiles with the intention of driving somewhere to eat together. Defendant Jewel went to the pickup truck with the intention of going home.

As the plaintiff, defendant Purser and Harris proceeded to the automobiles they passed by defendant Jewel who was already inside the pickup. The plaintiff, defendant Purser and Harris paused at the pickup truck in which defendant Jewel was seated and began discussing the two-way radio. It was at this time that plaintiff made the suggestion, which was approved by defendant Jewel, that defendant Purser be allowed to drive the pickup truck. There is evidence to the effect that Rufus Harris also made a similar suggestion. Thereupon, the pickup truck, with defendant Purser behind the wheel and the defendant Jewel to the right of her in the front seat, proceeded around the parking area in a counterclockwise direction.

After defendant Purser began to drive the pickup slowly around the parking lot, plaintiff and Harris proceeded to their respective automobiles which were parked in the parking lot.

Defendant Purser drove the pickup truck around the parking area at a slow rate of speed not exceeding five to ten miles per hour. As she approached the vicinity where plaintiff’s car was parked, she made a slow turn in an attempt to park between plaintiff’s car and the car of defendant Purser. There was a distance of between four and five vacant parking spaces between plaintiff’s car and that of defendant Purser.

As the pickup started to turn, the plaintiff was standing in the parking area near his automobile and as the pickup got near the plaintiff, it suddenly and without any warning accelerated and an instant later crashed into the plaintiff and his car.

It was the plaintiff’s contention that defendant Purser was attempting to scare him by suddenly accelerating the pickup and then stopping it before it hit plaintiff. However, when she went to apply the brakes after accelerating the pickup, her foot slipped from the brake pedal onto the accelerator and the truck crashed into the plaintiff.

In a sworn statement given to an Air Force Investigator the day after the plaintiff was injured, the defendant Purser stated that she vaguely remembered a statement to tire effect, “let’s scare old Mac,” however she later denied that this was said.

In any event, defendant Purser testified that as she turned the pickup to park it, plaintiff was standing by the left side of his automobile facing the pickup with his hand on the door, which was partially open as though he were about to get into the car; that when the pickup was about four or five car widths away from plaintiff, her foot missed the brake pedal and hit the accelerator, causing the pickup to suddenly lunge forward and that it was only a split second from the time the pickup lunged at plaintiff until he was struck by it.

All evidence as to the manner in which the collision occurred came from defendant Purser, defendant Jewel, their witness Harris and the facts as found by the official Air Force Investigator.

Defendant Jewel made no explanation as to why the pickup suddenly accelerated.

The plaintiff was either unconscious or semiconscious after the impact, was severely injured, however the extent or ultimate result of the injuries are not before the court at this time.

The plaintiff, appellant here, has assigned numerous points of error, however as the case will be remanded for a new trial we will discuss the theories advanced to sustain the judgment of the Trial Court which will encompass the points raised by appellant.

The jury found that the plaintiff was negligent in requesting that defendant Purser be allowed to drive the pickup and that this was a proximate cause of the collision.

The basic question involved in this appeal is whether or not the jury was justified in finding that the plaintiff was negligent and that his own negligence proximately contributed to his injuries. The jury also found the defendant Purser to have been negligent, however this phase of the case will be discussed later in this opinion.

Defendant points out that the jury found that “On such occasion” defendant Purser was not competent to operate the pickup. That the jury may well have believed that she had been drinking intoxicants; that she was not accustomed to driving the pickup truck; that she had never before driven the vehicle in question.

Defendant Purser contends that the plaintiff in requesting her to drive the pickup set in motion the chain of events that culminated in his being injured, and the jury findings that he was negligent in so doing and should have anticipated the consequences are not contrary to the preponderance of the evidence.

We cannot agree to this contention.

Defendant Jewel testified that the vehicle was a standard Ford pickup and that other than the radio it had no special equipment. That as far as the driving apparatus was concerned, it was no different than any Ford automobile and anyone who could drive an automobile would have no difficulty driving the pickup. In addition, defendant Purser testified that she had driven pickup trucks in the past. There was no testimony that the operation of the pickup in question was different from that of any other recent Ford car.

Defendant Jewel further testified that when he allowed defendant Purser to drive the pickup, there was nothing she said or did, or that anyone had said or done that indicated that 'she was not competent to drive it. There was nothing about her condition or anything else about her that indicated that she was not competent to drive the pickup.

While defendant Purser had never driven the pickup in question which was a 1959 or 1960 model Ford with an automatic gearshift, her own car was a 1955 Ford Ranch wagon with a standard gearshift. Defendant Purser had taken and passed the driver’s license test given by the State of Texas, the State of Florida and the District of Columbia. In addition she also held a valid Hawaiian driver’s license. No restriction appeared on any of these four licenses. The fact that defendant Purser held four valid driver’s licenses was at least prima facie evidence of her competency to drive motor vehicles, and in the absence of any evidence to the contrary should be conclusive on the matter. Brown v. Fields, 160 Or. 23, 83 P.2d 144; Rowan v. Sauls, 195 Tenn. 573, 260 S.W.2d 880; Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314; 206 S.W.2d 587.

In connection with the fact there are no restrictions on any of the defendant Purser’s driver licenses, there was testimony introduced that twenty-seven years ago, defendant Purser had sustained an injury to her left hand which resulted in a weakness of the hand that is currently present, however there is no evidence that this weakness caused the accident in question.

There is no dispute in that all of the parties concerned had consumed alcoholic beverages at the party immediately preceding the accident. The party had been in progress from late afternoon or early evening the preceding day until one or two a. m., the morning of the accident. There is no evidence that any of the people involved were drunk or intoxicated. In fact, defendant Purser and defendant Jewel both testified to the contrary.

There is no evidence as to the number of drinks defendant Purser had during the course of the evening and the early morning. Defendant Purser arrived at six o’clock p. m., met plaintiff in the bar and he and others bought drinks for her during the course of the party. She was drinking Scotch whisky, but could give no estimate of the number of drinks she had had.

Plaintiff estimated that during the nine or ten hours that he was in the Club he consumed four or five beers and five or six whisky highballs.

The mere fact that someone has been drinking is not sufficient to support a finding that a person has been driving while intoxicated. Van Zandt v. Schell, Tex.Civ. App., 200 S.W.2d 725, no writ history.

In Morgan v. Luna, Tex.Civ.App., 337 S.W.2d 139, no writ history, the court set aside a jury finding of driving while under the influence of intoxicants stating:

“In view of the fact that the defendant himself testified unequivocally that he was not drunk and was not ‘tight’, and since no other witness testified that he was drunk, ‘tight’ or under the influence of an intoxicating beverage, the only evidence bearing directly upon the question of whether he was, or was not, under the influence of an intoxicating beverage was the admission that he had had at least three, and not more than four, beers * * *. We think such evidence, standing alone as it does here, without other evidence tending to show that defendant Morgan did not have the normal use of his mental and physical faculties by reason of the use of an intoxicating beverage, is insufficient to support the jury findings

The court also held that Morgan’s statement that he was not drunk or tight was a judicial admission and was binding on him.

“We have also concluded that the defendant Morgan’s statement on the witness stand—T wasn’t drunk. I wasn’t tight. I had been drinking’— is a deliberate, clear and unequivocal statement, made during the course of a judicial proceeding, contrary to an essential fact embraced in one of the theories of the defense of the said Virgil Morgan, and constitutes a judicial admission which is binding on defendant, no effort having been made to change or modify this positive statement.”

The evidence in this case is insufficient to support a finding that defendant Purser was incompetent to drive the pickup either by reason of being under the influence of intoxicating beverages or for any other reason. To hold otherwise would be to credit surmise or conjecture drawn from premises which are uncertain. There are not sufficient facts established by direct evidence upon which any such inferences can be based.

To infer that because defendant Purser had taken some drinks during a party at which she had spent considerable time, that she had drunk more than a prudent person would, to be followed by the inference that because of this she was under the influence of intoxicating beverages and thus should not have been allowed to drive the pickup, would be basing one presumption upon another. An inference of fact should not be drawn from premises which are uncertain, but the facts upon which an inference may legitimately rest must be established by direct evidence as if they were the very facts in issue, and one presumption cannot be based on another presumption. Miller & Miller Motor Freight Lines v. Hunt, Tex.Civ.App., 242 S.W.2d 919, no writ history.

The jury also found that the plaintiff failed to keep a proper lookout for his own safety and such failure was the proximate cause of his injuries; that he was negligent in standing in the parking area while defendant Purser was driving the pickup and such negligence was the proximate cause of his injuries.

There is insufficient evidence to sustain these findings.

Defendant Purser testified that she was intending to park the pickup between her car and the plaintiff’s car which were either four of five parking spaces apart, and that she was about two car’s lengths away from plaintiff at the time the pickup suddenly accelerated and lunged forward. About this time she looked up and first noticed the plaintiff who was standing by the door of his car on the driver’s side facing the pickup. She further stated that defendant Jewel attempted to control the pickup in an effort to avoid plaintiff, but was unsuccessful since everything happened simultaneously and in “a. split second.”

Rufus Harris, defendant’s witness, testified that as the pickup was being driven around the parking lot, he was standing in the parking area at the rear of his automobile, and that plaintiff was standing about two or three feet from his vehicle on the driver’s side and was watching the pickup as it was being driven at a slow rate of speed and was turning in to park. As it approached the back of the plaintiff’s car, it suddenly accelerated.

Harris further testified that as the pickup was being driven around the parking lot, plaintiff was facing it and watching it. He testified that up until the time it suddenly accelerated, there was no warning or anything to indicate that it was going to do anything except to continue slowly and gradually to come in and park beside plaintiff’s car. However, when it did accelerate, it came as a complete surprise; that he was not expecting anything like that to happen since there was nothing to indicate such, and, that he did not know plaintiff was going to be hit until he was hit.

He also testified that the pickup was so close to plaintiff and accelerated so suddenly that in the short time interval between the time it accelerated and the time plaintiff was hit, it would have been impossible for plaintiff to get out of the way.

Defendant Jewel also testified that other than staying at home, there was nothing that plaintiff could have done to have avoided being hit once the pickup accelerated.

While the testimony showed that plaintiff had consumed four or five beers and five or six whisky highballs during the course of the evening, there is no evidence that he was intoxicated and any inference of negligence drawn by the jury from the fact that he had been drinking is insufficient to support the findings that plaintiff was negligent in failing to keep a proper lookout or in standing in the parking lot while the defendant Purser was driving the pickup.

Defendant Purser pleaded, in addition to contributory negligence on the part of the plaintiff, that plaintiff assumed whatever risk was involved in her driving the pickup or in the alternative that his injuries were received under such circumstances as to make the maxim volenti non fit injuria applicable. In response to issues submitted in this regard the jury found that there was danger of injury to those in the immediate vicinity from the operation of the pickup by defendant Purser; that plaintiff did not know and appreciate such danger, but in the exercise of ordinary care he should have known and appreciated such danger when he requested that she drive the pickup; that plaintiff voluntarily exposed himself to such danger.

These defenses will not stand as each requires a “danger” be present. As stated above, there is insufficient evidence to establish such a finding of “danger” in allowing defendant Purser to drive.

In addition to the issues submitted and discussed above, certain defensive issues were submitted by the Trial Court and answered by the jury which defendant Purser contends are sufficient to evoke the emergency doctrine. In response to those issues the jury found that just prior to and at the time of the collision she was acting under an emergency, that after it arose, she did what an ordinarily prudent person would have done under the same or similar circumstances but that the emergency was not the sole proximate cause of the collision.

It will be noted in this connection that the jury also found that defendant Purser’s acceleration of the pickup was negligence, that such was the proximate cause of the collision; that defendant Purser’s failure to use the brakes properly was negligence and such negligence was the proximate cause of the collision. Inasmuch as an emergency created was of defendant Purser’s own negligence, it was error to submit the issues on emergency and any findings thereto should have been disregarded. Jones v. McIlveene, Tex.Civ.App., 105 S.W.2d 503, er. dism.; Higginbotham v. Ritchie, Tex.Civ.App., 367 S.W.2d 210, no writ history; 40 Texas Law Review 441.

It should also be noted that this Court in Williams v. Voight, Tex.Civ.App., 264 S.W.2d 454, writ ref., n. r. e. has held that where the issue of emergency was found affirmatively accompanied by a finding that such emergency was not the sole proximate cause of the collision, created no conflict with affirmative findings on the issues of primary negligence.

Defendant Purser raised a cross assignment to the effect that any cause of action plaintiff may have had was barred by the 2-year statute of limitation because defendant Purser’s husband, while originally joined as a defendant, was dropped from the suit after which the statutory period expired; and the filing of an amended petition bringing him back into the suit did not revive the barred cause of action.

We overrule this cross assignment under the authority of City of Dallas v. Morris, 120 Tex. 181, 36 S.W.2d 702, 'Opinion adopted by the Supreme Court.

In viewing the evidence and inferences in the record before us in the light most favorable to defendant Purser and disregarding all evidence to the contrary, we find that there is insufficient evidence, to support the findings in her behalf described above and must remand this case for a new trial in accordance with this opinion.

Reversed and remanded.

HUGHES, Justice

(dissenting).

Appellant’s first Point of Error is that, “As a matter of law the request by plaintiff that Doris Purser be allowed to drive the pickup should not bar his recovery for her negligence.” The jury had found that appellant was negligent in this respect.

Under this point appellant contends that no liability could be imposed upon him by such request “unless the driver is incompetent. There is no evidence in this record that defendant Purser was incompetent to drive the pickup.”

Assuming that this point is adequate to raise the issue of “no evidence” to support the jury finding that appellee was an incompetent driver on the occasion in suit, I do not find that the majority opinion has expressly disposed of this point. It may have sustained this point by implication. One reason for saying this is that the rule used by the Court, upon which it predicates remand, is applicable only in deciding “no evidence” issues. Another reason is that no evidence of probative value is referred to as sustaining such finding.

If the majority has sustained the “no evidence” point, then judgment, in my opinion, should have been reversed and rendered for appellant. While we have authority under Rules 434 and SOS, Texas Rules of Civil Procedure to remand a cause rather than render judgment which the Trial Court should have rendered, this should only be done in the interest of justice. No such reason appears here, and appellee does not so contend.

If the majority has not ruled upon the “no evidence” point, then, in my opinion, it should do so.

In my opinion, there is no evidence to sustain the findings of the jury that appellant was negligent in requesting appellee to drive the pickup and that appellee was an incompetent driver on the occasion in suit. I would reverse and render judgment for appellant in the amount of damages found by the jury. I, therefore, respectfully dissent.

      . Appellant also has points to the effect that jury findings that Doris Purser was not, on this occasion, a competent driver, that appellant was negligent in requesting her to drive the pickup and that a finding of proximate cause as to these findings were against the great weight and preponderance of the evidence.

      .The Court states “In viewing the evidence and inferences in the record before us in the light most favorable to defendant Purser and disregarding all evidence to the contrary, we find that there is insufficient evidence to support the findings in her behalf described above and must remand this case for a new trial in accordance with this opinion.” This is the “no evidence rule.” 38 Tex.Law Rev., p. 361, “No Evidence” and “Insufficient Evidence” by Chief Justice Robert W. Calvert.

      . As to this see pp. 368-369, authority cited in footnote 1. See also Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792.

      . Similarly, I would sustain appellant’s “no evidence” points to jury findings that appellant failed to keep a proper lookout.


author: BATEMAN, Justice.

text:
    The TRAVELERS INSURANCE CO., Appellant, v. Manson S. BEARDEN, as n/f of Michael L. Bearden, Appellee.
    No. 16227.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 18, 1963.
    Rehearing Denied Dec. 6, 1963.

      Thompson, Knight, Wright & Simmons, Pinkney Grissom, Rust E. Reid and John A. Gilliam, Dallas, for appellant.
    Mullinax, Wells, Morris & Mauzy, Dallas, for appellee.
   BATEMAN, Justice.

Our former opinion is withdrawn and the following substituted therefor.

Workmen’s Compensation case. The employee, Michael L. Bearden, will be spoken of herein as the appellee even though, being a minor, he was represented in the litigation by his father as next friend. In his suit to set aside the award of the Industrial Accident Board he alleged a total and permanent specific injury to his right arm, claiming the maximum weekly benefits for the statutory period of two hundred weeks. Art. 8306, Sec. 12, Vernon’s Ann.Tex.Civ. St. Appellant specifically pled that the injury was limited to the hand and did not extend to the arm.

In answer to the first two special issues the jury found (1) that the injury to the plaintiff’s arm resulted in a total loss of the use of said arm, and (2) that such total loss of use was permanent. Appellant’s first complaint, expressed in its first four points of error, is that the trial court deprived it of its affirmative defense that the injury was limited to the hand by refusing to submit certain special issues and instructions requested by it. This contention is without merit and will be overruled.

The first of the said requested special issues was as follows: “Do you find from a preponderance of the evidence that the injury to plaintiff Michael L. Bearden’s arm on the 17th day of March, 1961, has resulted in a loss of use of the hand of Michael Bearden as defined in this charge?” (Italics ours) The other requested issues inquired as to whether the loss of use was permanent or temporary and, if temporary, the period thereof, as to whether the loss will be partial, and if so whether such partial loss will be permanent or temporary and, if temporary, the period and percentage thereof. Appellant also requested the court to instruct the jury that the term “arm” included all of the arm commencing at or about the elbow and extending to the end of the extremity, including the hand and fingers; that the word “hand” meant all that portion of the arm below the elbow, including the hand and fingers; and “that loss of use to the ‘arm’ as defined, shall include loss of use to the hand, but that loss of use to the ‘hand’ as defined would be exclusive of any loss of use at or above the elbow.”

The evidence was undisputed that all of the skin and all of the flesh down to the muscles had been peeled off from appellee’s right arm from a point about three inches above the elbow to a point near the wrist. This was undoubtedly an injury to the arm, as defined in the Act, and though the incapacity or disability resulting from such injury may have been restricted or limited to the hand, it cannot properly be said that the injury was so restricted or limited. Sec. 12 of Art. 8306, V.A.T.S., under which the claim is made, authorizes awards for “the injuries enumerated in the following schedule * * (Italics ours). In a case like the present, where it is undisputed that the injtiry itself is to the arm rather than being limited to the hand, a showing that the resulting loss of use may be found only in the hand will not have the result of reducing the number of weeks of benefits from 200 to ISO, but will at most only suggest a finding that the injury resulted in a partial rather than total loss of use. Therefore, we hold that, even though appellant did plead that the injury was limited to the hand, it is undisputed that the injury was not so limited, from which it follows that the requested issues were not raised by the evidence and were properly refused. Likewise, the requested instructions were immaterial and properly refused. “Injury” and “incapacity” are not synonymous. Federal Underwriters Exchange v. Simpson, Tex.Civ.App., 137 S.W.2d 132, no wr. hist.; Superior Ins. Co. v. Owens, Tex.Civ.App., 218 S.W.2d 517, err. dis.; Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W.2d 463.

Appellant’s second contention, embodied in its fifth, sixth, seventh and eighth points of error, is that the court erred in submitting Special Issue No. 2, in answer to which the jury found that the total loss of the use of the arm was permanent, and in rendering judgment on said verdict because, it is asserted, there was no evidence to support same, the evidence was insufficient, and the finding was so contrary to’ the great weight and preponderance of the evidence as to be clearly wrong and unjust. These points we also find to be without merit and they are overruled.

The appellee testified that he was a high school graduate, was nineteen years old at the time of his injury, being strong enough to lift his father, (a paraplegic weighing 200 pounds) to the bathroom; that when his hand got caught between the rotating steel dough rollers the thickness of his wrist stopped the arm from going on through, but that the rollers continued to rotate and tore his skin and flesh loose from a point about three inches above the elbow, the bone itself being exposed. He was taken to the hospital where Dr. Clayton, called by the employer, cleaned up the arm and repositioned the flesh and skin back on the arm, bandaged it heavily, and put him to bed. Approximately eight days later the doctor found that the skin had died and removed it and replaced it with a graft taken from appellee’s right thigh, which graft goes completely around the arm between the limits mentioned, and covers it completely. The skin graft has no feeling whatsoever on the exterior and since his injury he cannot participate in competitive contact sports. He tried working for a wood preservation plant loading poles on trolley cars but after one day he had to quit because he got creosote on his injured arm which made it burn and hurt a great deal, and he just couldn’t do that manual type of labor. He didn’t find a job for some time but was later employed as a brick mason’s helper at $1.30 per hour (which was 20 cents per hour less than was paid to the other bricklayers’ helpers and 65 cents per hour less than he was earning when injured), filling wheelbarrows and pushing them around and also driving a pickup truck, but he usually overturned the wheelbarrows because his right hand would “give out.” He worked for the brick mason only a week as the employer used the other men who were better qualified. The extended use of his arm in that work caused him a great deal of pain, and the chemicals in the cement caused his arm to burn. He earned only approximately $300.-00 during the period from mid-July, 1962 until mid-September, 1962.

He further testified that he had lost a great deal of strength in his arm, that the reflex therein isn’t perhaps as speedy as in the left arm, that he cannot muster enough strength to push the pushbutton to open the door on a modern car, that his right arm is of no use to him in opening a large or heavy door, that he can’t hold objects in his right hand for a long time, that the arm weakens and the muscles often lock and he will have to pry them open with the other hand, that oftentimes when he uses the arm for any extended length of time a great deal of pain accompanies the use and for perhaps a day or two thereafter the arm aches a great deal and hurts. He cannot cut his food effectively at the dinner table and cannot help his father any more. The skin that was grafted on his arm does not perspire or grow any hairs and has no feeling whatsoever. Some time in the year before a boy dropped a cigarette on his arm when he had his head turned, which he did not notice until someone told him that his arm was burning, but that he could not feel it. Any time the arm came in contact with anything it broke easily, blood would come out and scabs would form over it. He said he does not have full extension of the arm, that at least 80% of the functioning ability of the arm is absent, and that in making this evaluation he referred to the “cosmetic and all that.”

He further stated that he couldn’t do the work he was doing when injured because of weakness in the arm; that his arm improved for a time, but reached a “level-ling off period, where it didn’t improve from that point on.” ^ths of the usefulness of the arm is gone, even though he can drive a car and can dance, can work, can type and can write. He can lift only one-fourth to one-third as much weight with his right arm as with his left. He further testified that, although he could drive a truck and his injured arm did not give him any particular trouble in the task of a truck driver, he did not have enough strength in his right hand to turn on the ignition. He can handle a truck a little hit more effectively than a man who had lost his arm. He does not engage in athletics because the arm is rather unsightly, there has been a great psychological effect and he doesn’t particularly like to wear short sleeved shirts that will expose the arm. He does operate a self-propelled power lawnmower and drives his father around in their family car. He is able to write legibly with his right hand although pain occurs and the fingers cramp after an extended time of writing. He types with both hands but his right fatigues after a time. He estimates that he is 80% disabled, meaning 80% of the use of the arm as opposed to a good arm or the arm before the injury, that his arm is only 20% as good now and %ths of the usefulness of the arm is gone.

His father, Manson S. Bearden, estimated that his son uses his right arm 85% less than he did before it got hurt.

Dr. Ruth Jackson’s written report, in evidence without objection, stated that on January 25, 1962, ten months after the injury, the skin graft was very irregular and very ugly in appearance, although it had been properly done; that the patient lacked 15 degrees of extension of the elbow, that there was no limitation of flexion or extension of the wrist but flexion of the wrist causes discomfort in the wrist, that there appears to have been some loss of tissue at the distal portion of the grafted area, a definite loss of substance of the muscle tissue; that because there was no sensation in the skin graft it would be inadvisable for him to participate in sports or to use his arm in any way which might endanger the grafted area; that he had marked weakness of the muscles of the forearm, and that he has a 25 to 35% permanent partial disability of his arm; that the cosmetic appearance of the arm cannot be evaluated in terms of percentage, but that certainly this should be taken into consideration. Dr. Stanley L. Clayton, who was the treating doctor, testified that the machine had apparently just peeled the skin down like peeling a sleeve off, that it had completely encircled the arm so that there was no flesh on the muscles at all, the muscles were completely bare from this point slightly above the elbow to just above the wrist. He sewed the skin back in place with a full realization that it probably wouldn’t survive because the blood supply had been so mangled and stripped away from it. X-rays revealed no fractures or other bony injuries. Some of the skin that had been peeled down survived but the rest of it died and this portion had to be surgically removed, meaning that all the dead skin and the dead fat down to the live tissues underneath had to be cut away and the muscles pretty well laid bare again. They grafted the entire raw surface with skin from his right hip; and when appellee was released from the hospital on April 18, 1961 he could use his right hand and arm although he had considerable residual weakness because of nonuse during the period of hospitalization, not having more than 35% of normal function of the arm and hand at that time. He examined Michael in August, 1961 when he still had some residual weakness and some mild stiffness of the elbow and wrist. His extension and flexion at that time were about 90% of normal, with a slight limitation in the wrist movement, and he would say there was then about 10% disability in both the wrist and the elbow. The grafts at that time were healing, and he advised Michael not to play football or to engage in any other athletics of that violent a nature because this skin graft is skin directly on muscle, that to a slight degree subcutaneous tissue will build up underneath it. This is fatty tissue that forms a cushion or padding so that when one gets bruised his muscle doesn’t get bruised so quickly and the skin doesn’t take such a beating because there is a soft cushion under it. When he released Michael around the first of the year 1962 he had improved to the point where he felt that his only disability was cosmetic, that he had full extension and flexion of both the elbow and the wrist and the hand was fully usable, and that no further treatment was necessary.

He further said that on August 28, 1962 all of the skin graft had survived and was mature, completely and thoroughly healed with no ulceration or soreness of any type. He found the flexion and the extension normal and found only a very faint difference in the strength of the grip in the two hands. He would not have any reservations about sending appellee into an industrial complex to perform manual labor except that he would not want him around a lot of very noxious fumes, acids, alkalies, creosote or anything of a very corrosive nature. He would not want him to engage in sports like football where he would slide on the arm and possibly scrape all of the skin off again, but the normal industrial heavy use of the arm wouldn’t be dangerous. He had originally noticed some atrophy or weakness in the muscles but by December, 1961 most of that had disappeared, and in August, 1962 all of the muscular atrophy had disappeared, but because of the lack of subcutaneous fat the right arm is smaller. He does not expect the cosmetic condition of the arm to change, and due to the lack of the protective layer beneath the skin he thinks a scratch or mild trauma on the arm, or a bruise, would be more severe than it would on the other arm, that a trauma that might not hurt anyone else at all might be somewhat more serious to him; his skin would be slower to heal and could ulcerate to some extent. If any infection results from an injury in the area of the skin graft it will possibly be more difficult to cure it.

Dr. Clayton testified on cross examination that when the skin was stripped away it had lost about 90% of its blood supply, that tiny arteries that supply the skin and several major veins that drain the arm were completely severed; that practically all of the subcutaneous nerves in that area were also torn away, that these nerves carry the-sensation of heat, touch and pain, and that a tiny injury on this arm might not heal as. fast as an injury on normal skin, and there might be a tendency for it to ulcerate where-normal skin would not. He would say-that 40 to 50% of the sensory nerve fibers of the entire arm had been destroyed; that appellee might not detect extreme heat or extreme cold applied to that portion of the arm covered by the skin graft as quickly and as acutely as a man with a normal arm would. There were muscle fibers which had. been lacerated and it was necessary to cut away small pieces of muscle and a tendon that obviously might not have survived. He thinks appellee’s resistence to injury and infection is greatly lessened, and that the capacity to perspire or grow hairs on the-grafted area is greatly reduced. While he would not want to force appellee to go back to the same work he was doing when injured, because of his psychological reluctance to do so, he does not see any reason why he couldn’t perform the job he was performing at that time.

We have carefully studied and carefully-reviewed all of the evidence for the purpose of determining, first, whether there is any-evidence and, second, whether the evidence-is sufficient, to support the jury finding that appellee suffered total and permanent loss, of the use of his right arm. The foregoing summary of the testimony bearing-upon this issue clearly shows that there was at least some evidence to support the finding, and we are unable to say that the finding is so against the overwhelming weight of the evidence ,as to be manifestly wrong and unjust.

In defining the term “total loss of' use” as used in the court’s charge the court correctly told the jury that the phrase means that “the member is so affected as. to substantially and materially impair the use thereof, in the practical performance of its functions in the pursuit of a laboring man.” Appellant does not question the-correctness of this definition. It will be observed that the court did not instruct the jury that the term “total loss of use” meant that the member is so affected as to destroy the use thereof, but only as to substantially and materially impair the use thereof.

The Supreme Court, in Travelers Insurance Co. v. Seabolt, Tex., 361 S.W.2d 204, said: “Although a member may possess some utility as a part of the body, if its condition be such as to prevent the workman from procuring and retaining employment requiring the use of the injured member, it may be said that a total loss of the use of a member has taken place.”

It was the jury’s prerogative and duty to hear all of the testimony, observe the demeanor of the witnesses on the stand, look at the claimant’s arm and “use their common sense upon all the evidence and draw the same conclusions from their observance of physical conditions, personal appearance, and the value of human testimony, as other rational persons in like circumstances might do; they were not limited to the mere conclusions of the two physicians, however buttressed by professional learning and experience.” Oilmen’s Reciprocal Ass’n v. Harris, Tex.Civ.App., 293 S.W. 580, 582, no wr. hist.

Appellant relies upon a number of Texas cases in support of its position, particularly the opinion of this court in Texas Employers Ins. Ass’n v. Vineyard, Tex.Civ.App., 316 S.W.2d 156. In the cited case the employee held a number of good jobs for a number of years after his injury and up to the time of trial, and had received several promotions and increases in pay. No such showing was made in this case. We have studied all of the authorities cited by appellant and find none of them to be in point on this question so far as the facts are concerned.

Affirmed.


author: WILLIAMS, Justice.

text:
    Charles E. RATTAN, Appellant, v. Edward T. DICKER and Charles R. Rudinger, Appellees.
    No. 16249.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 8, 1963.
    Rehearing Denied Nov. 29, 1963.

      Blankenship & Curtis, Dallas, for appellant.
    Durant, Mankoff & Davis, Dallas, for appellees.
   WILLIAMS, Justice.

Summary judgment proceeding. Rule 166-A Texas Rules of Civil Procedure. The principal question involved in this appeal is whether a court of equity will grant a reformation of a written indorsement of a promissory note, based upon allegations of mutual mistake of the indorser and transferee of the note. If reformation is proper then the question is presented as to whether parol testimony is admissible to create an issue of fact as to whether the parties mutually intended that the blank indorsement was to be “without recourse”. We have reached the conclusion that the remedy of reformation is available in this case and that an issue of fact is presented relating to the true meaning of the indorsement as intended by the parties. Accordingly, the judgment of the trial court in granting summary judgment must be reversed.

For a clear understanding of the entire transaction, it is necessary and desirable to recite certain antecedent facts. On October 14, 1961, Allan W. Graves and wife executed and delivered to Charles E. Rattan, their two promissory notes in the amounts of $64,924.41 and $7,700, respectively, said notes being vendor’s lien notes in payment for Rattan’s interest in a motel in Harlin-gen, Texas. Edward T. Dicker and Charles R. Rudinger were the owners of an interest in the Top O’ Town Apartments in Dallas, Texas. Negotiations were entered into between Rattan and Dicker and Rudinger whereby Rattan was to purchase the Top O’ Town Apartments and the Graves’ notes were to be transferred to Dicker and Ru-dinger as consideration for the sale. On October 20, 1961 a closing transaction took place in Dicker’s office in Dallas. Present in the office at this time were Rattan, Dicker, George Bell and Isham P. Nelson. On this occasion a warranty deed to the Top O’ Town Apartments was executed and delivered to Rattan who, in turn, delivered to Dicker the two Graves notes. The facts relating to the indorsement by Rattan on the notes in question are revealed in affidavits by Rattan and Bell made in opposition to the motion for summary judgment. In Rattan’s affidavit he states that at the conference in Dicker’s office on October 20, 1961, he stated in the presence of the other persons present that he would not transfer the notes except “without recourse”. He says that he told Dicker that the notes were new notes, that no payments were due thereunder as of that time, that there was therefore no payment history on the notes, that he did not know enough about the notes or about the makers to guarantee payment of the notes, and that he could not therefore guarantee payment of said notes or indorse said notes, “with recourse”. He states that Dicker replied: “I wouldn’t expect you to”. He then stated that he would void the printed words of indorsement and guarantee on the back of the notes and asked Dicker if the transaction would be “without recourse”, to which Dicker replied: “Fine”. He then signed his name at the place where indorsements are usually written and wrote the word “Void” across the following words which were printed on the reverse side of the notes: “And as indorser, I guarantee the payment of the within note at maturity or on demand at any time after maturity, waiving demand, protest and notice of nonpayment thereof”, and signed his initials, “C. E. R.”, thereon. Rattan states that it was the express stated agreement of the parties that the transfer of the notes would constitute an assignment without recourse.

In Bell’s affidavit these facts are substantiated. He says that Rattan told Dicker: “There is no payment history on the notes. I do not know the Graves, except by reputation, and the payment of the notes depends on the successful operation of the motel by the Graves. You understand that I am not signing these notes with recourse”. To which Dicker replied: “I would not expect you to”. He says that Rattan then stated to Dicker that he, Rattan, would strike the words of indorsement and guarantee on the reverse side of the notes and told Dicker that such striking would constitute a “without recourse” transfer, to which Dicker replied, “Fine”. After striking out the words of guarantee on the reverse side of the notes, Rattan signed his name and then placed his initials across the part that was struck out.

The original suit was filed by Graves and wife against Rattan, Bell and Dicker, to rescind the two notes on the ground of fraud. Dicker and Rudinger filed a cross action against the Graves and Rattan for the amount of the notes, interest and attorney’s fees. The trial court severed the cross action of Dicker and Rudinger against Rattan from the main suit. Rattan specifically pleaded for a reformation of the indorsement on the two notes based upon the grounds of mutual mistake, the facts constituting such mutual mistake being set forth in the two affidavits referred to above. The trial court sustained the motion for summary judgment of Dicker and Rudinger and granted judgment for the amount of the notes, interest and attorney’s fees against Rattan.

OPINION

This being a summary judgment proceeding, the burden of proving that there is no genuine issue of any material fact is upon the moving party and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for the judgment. In testing the correctness of the trial court’s action we must accept as true all evidence of the party opposing the motion which tends to support such party’s contention, and give liim tlie benefit of every reasonable inference which properly can be drawn in favor of his position. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; McDonald, Texas Civil Practice, Vol. 4, Sec. 17.26, Page 1394, and authorities there cited. It is not our duty, nor was it the duty of the trial court, to ascertain the credibility of the affiants nor determine the weight of the evidence revealed in the affidavits. The only question is whether or not an issue of fact is presented and if so the motion should be denied. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

Appellant, in three points of error, contends that his remedy of reformation was available in this case; that genuine issues •of material facts were presented as to an understanding and agreement between appellant and appellees that the indorsements ■on the notes in question were “without re- • course” and that such evidence of the agreement and understanding was admissible to establish a mutual mistake of the parties as alleged. Appellees, by counterpoints contend that the trial court correctly granted summary judgment because parol ■testimony was inadmissible to establish an agreement which was in variance with that made by the parties and reduced to writing, and also that the affidavits of appellant were not sufficient to justify the application of remedy of reformation.

The rule prohibiting the introduction of parol testimony to vary the terms • of a written agreement is too well established to require discussion or citation of authorities. It is equally well settled that this rule is subject to well defined exceptions ■ and one of the most important of which is the case where equity is called upon to reform a written instrument because of mutual mistake of the parties. This rule was succinctly stated in 45 Am.Jur., Sec. 53, .Page 615, as follows:

“Generally where both parties have an identical intention as to the terms to be embodied in a proposed written in•strument and the writing executed by them or at their direction is materially at variance with that intention, either party may obtain a decree conforming the writing to their intention if innocent third persons will not be unfairly affected thereby. In other words, when a written instrument fails to express the real intention of the parties because of a mutual mistake as to the real meaning of the language used, reformation will be decreed, even though there is no misunderstanding as to what words actually entered therein. The fact that interpretation or construction of a contract presents a question of law, and thus, therefore, the mistake was one of law, is not a bar to relief.”

Of course, it is necessary that the mistake be mutual, and that both parties understood the contract as it ought to have been and in fact it was except for the mistake: 45 Am.Jur., Sec. 55, pages 617-618. This has been the law in Texas as evidenced by the opinion of the Supreme Court in Kelley v. Ward, 94 Tex. 289, 60 S.W. 311, wherein it was said:

“ [A] gainst the mistake of both parties, by which, in the effort to reduce the agreement which they had made to writing, they mistake its terms so that the writing does not represent the real contract, equity will grant relief.”

See also Norris v. W. C. Belcher Land Mortgage Co., 98 Tex. 176, 82 S.W. 500, 83 S.W. 799; Gilbert v. Smith, Tex.Com.App., 49 S.W.2d 702, 86 A.L.R. 445; Hale v. Corbin, Tex.Civ.App., 83 S.W.2d 726; Martin v. Snuggs, Tex.Civ.App., 302 S.W.2d 676; Pomeroy’s Equity Jurisprudence, 5th Edition, Sec. 845.

While these cases deal primarily with other written instruments we see no valid reason why the same rule would not apply to negotiable instruments. As stated in 45 Am.Jur. Sec. 25, Page 596:

“The general equity jurisdiction to reform written instruments so that they will express the true agreement of the parties extends to negotiable instruments such as bills of exchange, and promissory notes. A contract of in-dorsement, including a blank indorsement, may likewise be reformed.”

In 76 C.J.S. Reformation of Instruments § 13, Page 339, negotiable instruments are included as among those instruments which may be subject to reformation.

While there is a scarcity of authority in Texas on this identical question, yet we believe that the rule of reformation of negotiable instruments, in a proper case, is applicable in this state. This is especially true in a case like this one where the rights of third parties are not affected. In 36 Tex.Jur., Sec. 9, Pages 727-732, the rule is stated that reformation has been applied and otherwise recognized as a proper remedy in cases of promissory notes and indorsements. Fortenberry v. Warren Bros., Tex.Civ.App., 4 S.W.2d 101; Harkey v. Graves, Tex.Civ.App., 230 S.W. 750. In the case of Reynolds Mortgage Co. v. Garrett, Tex.Civ.App., 23 S.W.2d 835, wr. dis., a case involving an indorsement of a promissory note, the court said :

“Of course, in cases where fraud, accident, or mistake in making the indorsement without recourse is alleged, and there is a prayer to have a reformation of the indorsements, and the allegations are established, the in-dorsement will be reformed and the in-dorsee will be relieved of the legal effect of the indorsement as made. Luse v. Beard (Tex.Civ.App.) 252 S.W. 243; Miller v. Stewart (Tex.Civ.App.) 214 S.W. 565.”

Of course, such remedy must be properly raised by pleadings and~~if~notdone the remedy is not available. This is demonstrated in Horton v. Bolding, Tex.Civ.App., 67 S.W.2d 435 where the court expressly pointed out:

“He did not present any pleading alleging fraud, accident, or mistake to explain why the written indorsement was not properly restricted according to the verbal agreement claimed by him, and asked for reformation on such ground.”

Appellees rely strongly upon the case of Behrens v. Kirkgard, Tex.Civ.App., 143 S.W. 698, decided by this court in 1912. However, a careful reading of that opinion, while it might at first seem identical on the facts, will demonstrate that no plea of reformation or mutuality of mistake was advanced or pleaded. That case is nothing more than authority for the general rule that parol testimony is not admissible to show a variance in a written contract. The same answer is applicable to the case of Windham v. Creech, Tex.Civ.App., 79 S.W. 2d 631, relied upon by appellees. Here, likewise, there was no pleading seeking reformation. None of the cases cited by appellees decide the question where the application of equitable relief by way of reformation has been made.

Nor can it successfully be contended that the mutual mistake, if any made here, was. one of law and not of fact and therefore reformation is not available. In addition to the authorities cited above on this identical question, we think that the language' used in The State of Texas v. Wales, Tex.Civ.App., 271 S.W.2d 728, writ. ref. n. r. e., is applicable:

“If, however, as a result of a mutual mistake or fraud, the written instruments fail to express the agreement of the parties, parol evidence was admissible to show what the agreement was.. If this were not the rule the reformation or correction of the written instrument would rarely, if ever, be accomplished. * * * The mistake was as-to the legal effect of the terms used in the instruments. Since it was a mistake-as to the effect of the wording of the-instruments, it is not necessarily beyond the Reach of a court of equity to correct. See Smith v. Gilbert, Tex.Civ.App., 32 S.W.2d 901, Gilbert v. Smith, Tex.Com.App., 49 S.W.2d 702, 86 A.L.R. 445, and cases cited; Kelley v. Ward, 94 Tex. 289, 60 S.W. 311; Norris v. W. C. Belcher Land & Mortgage Co., 98 Tex. 176, 82 S.W. 500, 83 S.W. 799.”

Accordingly, we hold that the record presented here reveals an application by appellant for the relief of reformation of the indorsement on the promissory notes and that such remedy was available to him. We have also carefully reviewed the affidavits, the substance of which is set forth above, and find that the statements of fact therein contained clearly raise an issue of fact as to whether the instruments and their indorsements should be reformed. Having ■decided that an issue of fact is presented by the affidavits and pleadings on file it necessarily follows that the trial court erred in sustaining the motion for summary judgment.

The judgment of the trial court is reversed and remanded.


author: COLLINGS, Justice.

text:
    O. C. GIPSON, Appellant, v. AETNA INSURANCE COMPANY, Appellee.
    No. 3832.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 29, 1963.

      Bradbury, Tippen, Brown & Clement, Abilene, for appellant.
    Roger L. Glandon, Walter S. Pope, Jr., Abilene, for appellee.
   COLLINGS, Justice.

O. C. Gipson brought suit against Aetna Insurance Company for recovery on an insurance policy which provided certain benefits for disability “resulting directly and independently of all other causes from accidental bodily injury sustained during the term of this policy.” The case was tried before a jury and at the close of the testimony the defendant insurance company made a motion for an instructed verdict. The court took the motion under advisement and submitted special issues to the jury. The jury was unable to agree upon an answer to special issue number 3 which inquired whether the disability complained of resulted directly from the injury in question and independently of all other causes. The court then reconsidered and granted the defendant’s motion for an instructed verdict and entered judgment in favor of the defendant. O. C. Gipson has appealed.

It is contended in appellant’s first point that the court erred in granting the insurance company’s motion for an instructed verdict because there was “conflicting evidence upon material fact questions requiring jury decision.”

The record shows that the policy of insurance sued upon was dated May 1, 1962, and issued on that date or on May 3, 1962; that it insured appellant “Against loss resulting directly and independently of all' other causes from accidental bodily injuries-sustained during the term of this policy.” The evidence shows, as testified to by appellant, that on May 22, 1962, while he was-loading two spools of wire on a welding machine that he sustained an injury to his-left arm, which is the injury here in question. The jury found that Gipson did sustain the alleged accidental bodily injury,, and that Gipson became wholly and continuously disabled as a result of such accident, but, as already noted, the jury was-unable to agree upon an answer to the question whether Gipson’s said disability resulted directly from the injury in question and independently of all other causes. Appellant contends that there was evidence in support of an affirmative finding on the issue and that the court therefore erred in granting appellee’s motion for an instructed verdict.

The evidence indicates that appellant has had three injuries to his left arm. In June or July, 1961, he first fractured his left arm at his home. He was treated by Dr. Willis J. Bray, was hospitalized and was off duty about four months. In November of 1961, he again broke that arm when he fell off a tractor. He was again treated by Dr. Bray, who advised a bone graft but appellant refused to permit the operation and a cast was placed on his arm. Thereafter, appellant did no work until about March 20, 1962, at which time the doctor-released him to do light work and he began working as a welder. Appellant testified that the doctor told him “to go to work and do light duty”; that the doctor did not release him for full duty but told him to-“take care of it” and to “favor it”. Appellant stated that he was not under medical treatment during this period but was going back to the doctor about once a month for a check up; that he was particularly instructed by the doctor to see him if any complications set in; that he went to see-Dr. Bray for a check up on April 24, 1962,. and had another x-ray; that the doctor talked to him about the x-ray but he didn’t remember whether the doctor told him that his arm was not doing well at the time. The evidence indicates that when appellant started to work on the welding job he did all of the work connected with that job except loading the spools of wire on the welding machine; that when the wire was loaded he got other employees at the plant to help.

Appellant took out the policy of insurance around the first of May, 1962. He testified that at that time he thought his arm was healed; that he thought this because he was working. His application for the policy of insurance sued upon stated that he had recovered from the effects of his fractured left arm. He stated that Dr. Bray had wanted him to have a bone graft but he didn’t let the doctor do it; that he wanted to wait and see if it would get well without the operation; and that it did grow back and that he was working. Appellant also testified that at the time he applied for the insurance he did not know he was •going into the hospital to have the arm •operated on. He stated that on the morning ■of May 22, 1962, the day of the accidental injury in question, his arm was not giving him any trouble; that he lifted two spools -of wire, each weighing 60 pounds, and that when he lifted the second one and placed it •on the machine he felt a sharp pain; that he went to see Dr. Bray who examined the arm and told him not to work any more; that his arm was broken. Appellant was asked if the lifting of the bale of wire broke his arm again and he stated that he thought it had a lot to do with it. Appellant was also asked if when he went to see Dr. Bray •on this occasion he told the doctor that he had had an accident and stated ‘T thought I •did. I thought I told him I had hurt it ■again,” but appellant stated that he couldn’t say for sure that he had told the doctor he had an accident; that he told the doctor '“I had hurt it and it was hurting and I wanted him to check it; see if it was getting worse or what was the matter with it.” Also, in answer to questions concerning whether he had broken his arm at the time of the alleged injury on May 22, 1962, appellant stated “Yes, sir. I believe I broke it again; pulled it loose.”

Dr. Willis J. Bray who had treated appellant as above indicated was called as a witness by appellee insurance company. He testified that he saw appellant on July 19, 1961, at Hendricks hospital about 1:35 a. m. suffering from a dislocated elbow and fractured arm; that he reduced the fracture and dislocation and placed a cast on the arm but that appellant’s progress was not good; that the dislocation slipped and it was necessary to do an open reduction on the dislocated elbow; that after this surgical operation appellant appeared to be doing well and the pin was removed from the elbow on August 10, 1961, but, thereafter, on August 17, 1961, there appeared to be a tendency for stiffness in the elbow and the cast was left off in spite of certain dangers in the fracture healing and the danger of non-union. The doctor stated that this was done to give appellant a better chance for a good elbow. The doctor further testified that on September 22, 1961, x-rays indicated that the fracture was healing. Then on November 3, 1961, appellant came to the doctor again complaining of a rattling sensation in the region of the fracture and the doctor felt after clinical examination and the taking of x-rays that there was a nonunion of the ulna. It was then that the doctor recommended that there should be an open reduction and bone graft of the fracture; that appellant however was reluctant to accept surgery and the doctoi started him on a series of immobilization, or a prolonged immobilization, in a cast to see if the break would heal. The doctor stated that on November 28 it appeared that there was no longer any sense of motion at the fracture site ; that on January 11, 1962, x-rays were made of the cast and showed definite progress toward healing; that x-rays were again made on February 5, 1962, and showed a continuation of the progress toward healing, but that appellant was still not ready for work; that appellant was seen again on March 12, 1962, and x-ray pictures showed excellent progress toward healing and it was then that the doctor released appellant to do light work. On April 24, x-rays were again made and on that occasion it appeared that the degree of healing had regressed but the doctor stated that on account of the difference in x-ray techniques, he could not be sure. The doctor stated, however, that at that time he advised Gipson that there was a regression in the healing process.

Dr. Bray testified that he next saw Gipson on May 22, 1962. This was the date of the alleged accident. The doctor stated that at that time appellant was complaining of pain at the tip of the ulna, where one end of the pin was and on down the forearm, where the other end of the pin was inside the bone. The doctor testified that it appeared from the x-rays that the condition of appellant’s arm was a little better than it had been on April 24, but not as good as it had been on March 12. He testified that he did not find any condition that looked like there had been an injury on that day. The doctor stated that he saw appellant again on May 25, 1962, and at that time it appeared he was having some irritation of the periosteum by erosion of the tip end of the pin but the doctor felt he could not remove the pin because the healing was not satisfactory for the removal. The doctor testified that there was another x-ray on June 24, 1962, and at that time it was obvious that there had been a definite non-union and he again recommended that appellant should have a bone graft; that on August 1, 1962, an open reduction, bone graft and replacement of the pin with a longer pin was done; that on October 3, 1962, excellent progress toward healing was shown by the x-rays; that on November 30 x-rays showed healing was well progressed and appellant was okay for light work, but there was a delay in removing the pin because of appellant’s past troubles in getting a union or healing of the arm. Dr. Bray testified that in his opinion the arm was never completely healed from the first injury in July of 1961. The doctor further testified as follows: “You have to say that the original accident was the primary cause and that the injury that occurred later was a contributing cause.”

The above substantial statement of the evidence is given for a clear understanding of appellant’s contention that there was some evidence to the effect that his-disability resulted directly from the injury in question and independently of all other causes. In this connection appellant particularly points out and relies upon his own testimony to the effect that “ * * * they wasn’t nothing wrong * * * ”; also appellant testified “I told him it was-recovering. Yes, sir, I believe it had at the time. I was doing my job and working and it was all right.” Appellant also testified “He asked me if it was recovered; if it was doing all right and I was using it and I told him yes, it was doing just fine and I was working at the time.” We cannot agree with appellant’s contention that the above testimony, which he relies upon, is any evidence of probative value tending to show that his disability resulted directly from the injury in question and independently of all other causes. Appellant’s statement that “ * * * they wasn’t nothing wrong * * * ” was made concerning his regular monthly visits to the doctor in compliance with the doctor’s request in connection with his treatment and examination. The effect of this testimony was an explanation by appellant of his regular visits to the doctor in which he stated “but there wasn’t nothing wrong and lots of times it would be over a month; be a month and a half.” Appellant’s statement to the-effect that “I told him it was recovered. Yes, sir. I believe it had at the time. I was doing my job and working and it was all right,” was his version of his representation to the agent of appellee insurance company at the time he took out the policy. The application for the insurance stated that appellant’s arm had recovered. The above statement to the insurance agent was simply an explanation of the reason he had made the statement in his application. The statement was prior to and had no reference to the results of the accident on May 22. The statement by appellant that “he asked me if it was doing all right and I was using it and I told him yes, it was doing just fine and I was working at the time” also referred back to the time of the application for and the issuance of the insurance policy sued upon. Appellant’s testimony that he liad made this statement to the insurance agent also referred to an occasion prior to the date of the accident on May 22 and had no reference to the result of that accident or to the cause of the disability he thereafter suffered.

We are also unable to agree with appellant’s contention that the following evidence by Dr. Bray constitutes some evidence that appellant’s disability resulted directly from the alleged May 22, 1962, injury or break of his left arm independently of all other causes.

“Q — Now, without that extra stress, that might have been caused by excessive weight, will you tell us whether or not your healing process might have continued ?
“A — (Dr. Bray) Yes, sir.
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“Q — Doctor, would you say that but for or except for some interference, with your healing procedure on two different occasions, that the man would have gotten well?
“A — That’s right.
“Q — Two different times he would have gotten well if something extra hadn’t happened, is that right?
“A — Yes, sir.”

The effect of the above testimony by Dr. Bray was simply that extra stress caused by lifting the sixty pound weight might have contributed to appellant’s subsequent disability. It constitutes no evidence that there had been a complete recovery of the fractured arm prior to the alleged accidental injury of May 22, 1962, or that appellant’s disability resulted directly therefrom and independently of the prior injuries. This evidence does not negative the proposition that the prior injuries to and fractures of appellant’s left arm also contribute to his disability existing after the alleged injury of May 22, 1962. The probative force of the evidence is so weak that, at most, it merely raises a surmise or suspicion of the existence of the fact sought to be proved. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. Also see Simonds v. Stanolind Oil & Gas Company, 134 Tex. 332, 136 S.W.2d 207; Continental Casualty Company v. Fountain, Tex.Civ.App., 257 S.W.2d 338, (Writ Ref.); Standard Life & Accident Insurance Company v. Roberts, Tex.Civ.App., 318 S.W.2d 757; Travelers Ins. Co. v. Blazier, Tex.Civ.App., 228 S.W.2d 217. Appellant’s first point is overruled.

It is contended in appellant’s second point that the court erred in overruling his motion for judgment on the verdict because the jury answered special issues which authorized a judgment for appellant under the terms of the policy under consideration. The findings of the jury which appellant contends authorize a judgment in his favor are (1) that appellant did sustain an accidental bodily injury on May 22, 1962, and (2) that appellant became wholly and continuously disabled from performing every duty pertaining to his occupation as a result of such accident. Appellant contends, in effect, that his right to recover was established by the showing that he was disabled during the policy term by accidental injury. Appellant urges that the burden of proof was on the insurance company to plead and prove prior contributing causes to disability and that the jury found that appellant’s left arm had recovered from the previous fracture or fractures at the time he made application for the insurance policy and that the defense of prior contributing causes was therefore specifically rejected by the jury. We cannot agree with this contention. There was no provision in the policy sued upon permitting appellant to recover for any loss except a loss resulting directly and independently of all other causes from accidental bodily injury sustained during the term of the policy. The burden was on appellant to establish that his disability did result directly from the injury complained of independently of all other causes. Bethea v. National Casualty Company, Tex.Civ.App., 307 S.W.2d 323; Combined American Insurance Company v. Tunnell, Tex.Civ.App., 311 S.W.2d 76. There was no evidence of probative force to support the submission of such an issue to the jury and the jury was unable to answer the question when it was submitted in Special Issue No. 3. As above noted appellant relies in this connection upon the finding of the jury in answer to Special Issue number 5 to the effect that appellant had recovered at the time he made application for the insurance policy. Appellant’s argument and contention in this respect is not well taken for several reasons. In the first place this issue was a defensive issue dealing with the question of alleged misrepresentations by appellant at the time he applied for the insurance. The issue was one in which the defendant had the burden to establish that Gipson’s left arm had not healed and the burden was so placed in the submission of the issue. The negative finding does not amount to a finding based upon a preponderance of the evidence that the arm had recovered. It certainly is not a finding that the arm had recovered at that time to the extent that it could not have been a contributing cause to any disability thereafter suffered by appellant. If the finding should be given that effect, then it was without any support in the evidence. In addition, it is noted that in special issue 6 the jury found from a preponderance of the evidence that Gipson knew on May 3, 1962, that his arm had not recovered. Appellant’s second point is overruled.

The judgment is affirmed.