text:
    Raymon HARRIS, Appellant, v. May JONES et vir, Appellees.
    No. 4042.
    Court of Civil Appeals of Texas. Eastland.
    March 25, 1966.
    Rehearing Denied July 15, 1966.
    A. W. Salyars, Lubbock, for appellant.
    Key, Carr & Clark, Donald M. Hunt, Lubbock, for appellees.
   COLLINGS, Justice.

Our former opinion, dated February 4, 1966, is withdrawn and the following is substituted therefor.

Raymon Harris brought this suit against May Jones and husband, T. R. Jones, on May 8, 1962, to recover damages for personal injuries and property damage sustained by Raymon Harris in an automobile collision in Dickens County on or about June 30, 1961, between an automobile operated by May Jones and a vehicle owned and operated by Harris.

May Jones and husband, T. R. Jones, had previously, on August 24, 1961, filed suit against Raymon Harris in the District Court of Dickens County to recover their damages proximately resulting from the same collision. Harris was served with a citation in said cause, and on September 27, 1961, a judgment of dismissal with prejudice was entered. No answer or pleadings of any kind was filed in that case on behalf of Raymon Harris. At the time of the collision in question Raymon Harris was covered with a policy of liability insurance issued by National Farmers Union Property and Casualty Company.

In the instant case defendants, May Jones and her husband, T. R. Jones, filed a motion for summary judgment on the theory that, under Rule 97(a) of the Texas Rules of Civil Procedure, Harris’ claim was a compulsory counterclaim in their former case against Harris which had been dismissed and that Harris’ counterclaim which he now asserts in this suit was therefore barred. The defendants, Mr. and Mrs. Jones, also urged facts which they contend entitled them to judgment on the theory of res judicata or estoppel by judgment. The court granted the Jones’ motion for summary judgment and rendered judgment that Harris take nothing. The judgment does not indicate upon which theory the trial court relied. Raymon Harris has appealed.

The motion for summary judgment filed by appellees, Mr. and Mrs. Jones, defendants in the court below, recites that they commenced an action arising out of the same transaction that is the subject matter of appellant’s suit in this case; that such action did not require for its adjudication the presence of third parties of whom the court could not acquire jurisdiction; that, therefore, any claim arising out of said transaction was a compulsory counterclaim under Rule 97 of the Texas Rules of Civil Procedure, and should have been asserted by appellant Harris in the prior suit between the parties; that Harris was served with a citation in said cause and a judgment of dismissal with prejudice was entered ; that the matters litigated in the prior cause were and are the same matters which are in issue in the instant suit; that the matters and facts set up in appellant’s petition in the instant case were fully determined, adjudged and decreed in the prior case of Jones v. Harris; that said judgment was final, has never been reversed and finally adjudicates all the rights of the parties to this suit.

Rule 97(a), Texas Rules of Civil Procedure, provides as follows:

“A pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom' the court cannot acquire jurisdiction.”

Appellant presents points contending that the court erred in granting a summary judgment in favor of Mr. and Mrs. Jones because (1) no pleadings were filed in behalf of appellant in the former suit and that Rule 97(a) is, therefore, not applicable, (2) because, as a matter of law, appellant’s liability insurance company could not, by setting and securing dismissal of the Jones’ suit against appellant, bar appellant’s right to recover damages resulting from the collision and (3) because appellant did not consent to or participate in the settlement and dismissal of the suit by ap-pellees against appellant, and therefore, appellant’s claim is not barred by the judgment of dismissal in the former suit.

In appellant’s answer to appellees’ motion for summary judgment he stated, under oath, that he suffered serious personal injuries in the collision; that he was confined in the hospital for 23 days and confined to his home for several weeks thereafter and was physically unable to return to work for several months following the collision; that appellees were fully aware of appellant’s physical condition; that when appellant was served with citation in the prior suit he delivered the citation to an agent for appellant’s liability insurance company; that said citation was thereupon delivered to Burl Lynn, the claims adjuster for such insurance company, and that the said Burl Lynn was fully aware of appellant’s physical condition and injuries and was also aware of the fact that appellant Harris intended to file a law suit against the Jones for his personal injuries and property damage proximately resulting from such collision.

Appellant further stated, under oath, in his answer to appellees’ motion for summary judgment that the said Burl Lynn, acting as agent for appellant’s liability insurance company, did not engage the services of attorneys to represent Raymon Harris in such prior suit, did not cause an answer to be filed therein, and without the knowledge and consent of appellant Harris and against his known intentions, the said Burl Lynn effected a settlement of the pri- or law suit with Mr. and Mrs. Jones and caused a judgment of dismissal with prejudice to be entered; that appellant did not engage the services of an attorney to represent him in said cause, did not participate in, consent to or have any knowledge of the settlement of such case and judgment of dismissal until long after it was entered.

One of the exhibits to appellees’ motion for summary judgment is a copy of the judgment of dismissal of the former suit entitled May Jones et vir v. Raymon Harris, Number 2563, in the District Court of Dickens County. This judgment recites that all matters in controversy between the parties had been fully and finally settled, that the statements in said motion to dismiss were true and correct and that the motion should be granted. The dismissal judgment appears to have been agreed to as indicated by the signatures of Mr. and Mrs. Jones and their attorneys and by Conner and Walker, designated as attorneys for the appellant Harris.

The question whether a counterclaim is compulsory is determined by Rule 97(a), supra. The counterclaim here under consideration complies with all the requirements of Rule 97(a), unless it should be held that the Rule applies only when the defendant in the prior suit filed an answer. We find no Texas cases exactly in point. Appellees rely upon Beach v. Runnels, 379 S.W.2d 684 (Tex.Civ.App. error ref.), and Stringer v. Munnell, 390 S.W.2d 484 (Tex.Civ.App. error ref.). In our opinion, those cases are distinguishable from the instant case if the Rule does require the filing of an answer, in that in both cases an answer in a previous automobile negligence suit had been filed for the insured by their insurer as authorized by a liability policy. In the instant case no answer was filed in the prior suit. In the instant suit and in both the cited cases no counterclaim was filed and the insurer, without notice to the insureds, agreed with the original plaintiff to settle the case and an agreed judgment was entered.

Rule 97(a), supra, is substantially the same as Rule 13(a) of the Rules of Federal Procedure. We have found no case holding that a requirement for a compulsory counterclaim, under the Federal Rule or under a similar State rule, is that an answer must be filed by the defendant in the prior suit. The weight of authority in states which have enacted a similar rule is that such a rule precludes a defendant who does not plead any counterclaim which he has from raising the same matter in an independent action regardless of whether he filed an answer. In Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001, it was held that where a motorist instituted an action against the driver of another automobile to recover damages resulting from a collision and such other driver, in accordance with the terms of his automobile liability policy, turned the petition and summons over to his insurer, and the motorist’s counsel and insurer’s counsel filed a stipulation without notice to the driver in accordance with which the suit was dismissed, the driver’s cause of action against the motorist for damages arising out of the collision was held to be a compulsory counterclaim which he was required to have asserted in the motorist’s action, and the driver’s failure to file such counterclaim precluded him from asserting it in a subsequent suit. It is noted that the facts in the Keller case are substantially the same as in the instant case. The difference is that in the Keller case the original plaintiff and the insurer’s counsel filed a stipulation prior to the entry of an agreed judgment and in the instant case there was no stipulation but there was a motion by the original plaintiff to dismiss, with prejudice. The motion to dismiss is in substantially the same language as that in the stipulation in the Keller case.

In Pesce v. Linaido, 123 So.2d 747 (Dist.Ct.App.Fla.1960), although it appears that an answer was filed, the court obviously did not consider a pleading necessary to invoke the compulsory claim rule, as shown by the following language, set out on pages 749, 750 of the opinion:

“It has been generally held under Federal Rule 13(a) or similar state rules or statutes that a failure to so assert a compulsory counterclaim precludes assertion thereof in a subsequent action. Annotation 22 A.L.R.2d 621. This penalty has been applied for failure to assert a compulsory counterclaim where the first action has resulted in a consent or default judgment not tried upon its merits, but the action must necessarily have proceeded to a judgment.”

Firemen’s Ins. Co. of Newark v. L. P. Steuart & Bros., Inc., 158 A.2d 675, (D.C.Mun.App.1960), arose under Federal Rule 13(a), the rule from which 97(a) was taken. It was stated therein as follows:

“When Steuart filed its third-party complaint in the District Court action seeking indemnification from Crusty, Steuart and Crusty became opposing parties and it was incumbent on Crusty to assert any compulsory counterclaim it then had against Steuart or be barred from thereafter asserting it. Fed.R.Civ.P. rules 13 and 14, 28 U.S.C.A.; 3 Moore, Federal Practice § 14.17 (2d ed.). Crusty’s claim against Steuart * * * obviously existed when Crusty was served with the third-party complaint and obviously its claim arose out of the same occurrence that was the subject matter of Steuart’s claim. Thus Crusty’s claim was a compulsory counterclaim and it was not asserted. * * * The judgment against Crusty in the District Court action was by default, but ‘judgment entered after default is just as conclusive an adjudication between the parties of whatever is essential to support the judgment as one entered after answer and contest.’ * * * By its default Crusty failed to assert the claim * * * [and] Crusty is barred from doing so * * *.”

In Mensing v. Sturgeon, 250 Iowa 918, 97 N.W.2d 145, a prior suit had been filed by the Sturgeons against Mensing, who was served with due notice but filed no pleadings and made no formal appearance. The court in passing upon the same question that is presented in this case stated as follows :

“No counterclaim was filed by Mensing in the suit brought by the Sturgeons, although he had the opportunity to do so. Instead he elected to make a settlement with them and procure a dismissal with prejudice. His possible counterclaim, arising out of the same facts relied upon by the Sturgeons, was then barred by Rule 29. It was then matured; it was not the subject of a pending action; it was held by him against the opposing parties; and it did not require the presence of indispensable parties of whom jurisdiction could not be acquired. * * * Iowa is in the class of jurisdictions in which counterclaims are mandatory. In fact, we think the situation shown in the case at bar well illustrates the need for, and reason of, the rule.”

Based upon the above authorities we hold that the cause of action here urged by appellant was a compulsory counterclaim in the prior suit between the parties under the provisions of Rule 97(a). Contrary to appellant’s contention, the court did not err in granting a summary judgment for ap-pellees because no pleadings were filed in behalf of appellant in the former suit. Appellant’s points are all overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: MURRAY, Chief Justice. CADENA, Justice

license: Public Domain

text:
    The FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, v. Joseph E. BURROWS, Appellee.
    No. 14466.
    Court of Civil Appeals of Texas. San Antonio.
    May 25, 1966.
    Rehearing Denied June 22, 1966.

      Groce, Hebdon, Fahey & Smith, Damon Ball, San Antonio, for appellant.
    Putman & Putman, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is a Workmen’s Compensation case. Joseph E. Burrows is the claimant, Braniff Airways, Inc., is the employer, and The Fidelity & Casualty Company of New York is the insurance carrier. The trial was to a jury and resulted in findings of total and permanent incapacity, and a lump sum judgment in favor of Joseph E. Burrows, from which the insurance carrier has prosecuted this appeal.

Appellee was employed by Braniff Airways, Inc., as a cargo serviceman. His duties consisted of loading and unloading airplanes. On April 1, 1964, he and other employees of Braniff were unloading a piece of freight weighing about 700 pounds when he twisted and injured his back. His supervisor sent him to the hospital where he was confined until Saturday, April 4 under the care of a Dr. Nixon. After the doctor examined Burrows in his office on Monday, April 6, the doctor told him he was all right and could go back to work the next day. He tried it for one day but had too much pain in his back, so the next day he went to his family doctor, E. P. McCabe. Under Dr. McCabe, Burrows remained off work until June 1, 1964, at which time he returned to his job wearing a corset, which he has worn ever since. He worked steadily until about June 1, 1965, one week before this trial began, with the exception of three days around October 23, 1964.

Dr. McCabe testified that he was a general practitioner; that he first examined appellee on April 8, 1964, and examined and treated him from then on until July 8, 1964, when he released him from further treatment. On May 22, 1964, he told appellee that he could go back to work; that he should wear a corset and do only light work. He saw appellee again on July 8, and appel-lee told the doctor his back was feeling a great deal better. The doctor saw him again on October 9, 1964, and he told the doctor that with the coming of cool weather he had more stiffness and pain when he exercised. On October 23, appellee returned to the doctor and told him he had another accident and reinjured his back unloading a plane that day or “last Thursday,” the doctor was not sure which date. Upon examination the doctor found tenderness and spasm on the right side of the lumbosacral part of the back, whereas on April 8 he had them on the left side of his back. On his initial examination he diagnosed the injury as a low back strain and treated appellee accordingly. During the course of his treatment he arrived at the diagnosis of a herniated or protruded intervertebral disc between the fifth lumbar vertebra and the first sacral vertebra.

The jury found in answer to special issues Nos. 1, 2, 3, 4 and 5, in effect, that appellee sustained an injury on April 1, 1964, while working for Braniff Airways, which caused or contributed to cause incapacity to work beginning April 1, 1964, which incapacity was total and permanent.

The evidence set out above is some evidence to support these jury findings.

Appellant contends that the jury findings were so against the overwhelming weight and preponderance of the evidence as to be clearly wrong. This contention requires that we consider all of the evidence.

Doctor Newsom Stool, an orthopedic surgeon called by appellant testified that he examined appellee on two occasions, April 17, 1964, and May 3, 1965. The examinations included the review of X-rays taken in September, 1963, April, 1964, and May, 1965. They also included neurological examinations. His diagnosis after the examination in April was low back strain. After his examination in May, 1965, his diagnosis was low back pain without objective damage; meaning no disease or injury or lack of function that he could determine by examination or X-ray. After his examination of May 3, he was of the opinion that appellee could perform the usual tasks of a working man. He was also of the opinion that appellee did not have a protruding or herniated intervertebral disc. On May 2, 1965, Dr. Stool wrote a letter for appellee in connection with his military duty or reserve training. This letter was addressed “To Whom It May Concern” and stated, in effect, that on April 17, 1964, there were signs and symptoms of a subsiding lumbosacral strain, that all factors pointed to a temporary condition which should subside spontaneously without permanent impairment and he believed that appellee would be able to perform manual labor or military duty as soon as the present episode subsided. Dr. McCabe had appellee examined by Dr. Heifer after the October, 1964, incident. Dr. Heifer did not testify, however, the treatment he prescribed was that which Dr. McCabe had previously prescribed for treatment of a low back strain.

The evidence shows that appellee had a splendid work record with almost no loss of time from June 1, 1964, until June 1, 1965, one week before the trial. He worked at the same job as before his injury. He actually made more money than before the injury, due to a general increase in wages. It is true that two of his fellow workers testified they carried him on the job by taking the heavier packages and leaving him the light ones. Moving pictures were taken and shown of him at work with no apparent handicap. His immediate supervisor did not notice anything wrong with his work. Appellee was a single man, living with his parents. There is no evidence of hardship which would compel him to work in spite of incapacity. In fact, in March, 1965, appellee and his mother took a ten to twelve-day vacation trip to New York and Washington.

We feel that the jury’s finding that appellee was totally and permanently incapacitated due to his injury of April 1, 1964, is so against the great weight and preponderance of the evidence as to be clearly wrong.

The court correctly defined total and permanent incapacity as follows:

“The term, ‘total incapacity,’ as used in this charge, does not mean an absolute inability to do any kind of work, but means one must be so disabled that he cannot perform the usual tasks of a workman to the extent that he can obtain and retain employment.”

It would be wrong to say that appellee cannot obtain and retain employment when he has been doing so since June 1, 1964. It is difficult to find any two cases that are exactly the same, and quite often each workman’s compensation case must be decided upon its own peculiar facts, but the following authorities are very persuasive here. Texas General Indemnity Co. v. Hernandez, Tex.Civ.App., 388 S.W.2d 334; Texas Emp. Ins. Ass’n v. Moran, Tex.Civ.App., 261 S.W.2d 855.

The jury found in answer to Questions Nos. 16 and 17, in effect, that appel-lee’s present incapacity is caused 100% by his injury of October 23, 1964. This finding is also so against the overwhelming weight and preponderance of the evidence as to be clearly wrong. Inasmuch as the judgment must be reversed as pointed out above, we will not discuss this matter further.

The judgment is reversed and the cause remanded.

CADENA, Justice

(dissenting).

I cannot agree with the result reached in the majority opinion.

The medical testimony is in sharp conflict as to the nature and extent of plaintiff’s injury. Plaintiff’s witness, Dr. Mc-Cabe, testified that in his opinion, plaintiff had a disc protrusion which he described as permanent. Because of this condition, which the witness described as painful and disabling, plaintiff would be unable to do any heavy lifting. If, upon performing a pre-employment physical examination, he found such a condition in the applicant for employment, he would disqualify the applicant from work involving stooping, bending, lifting and carrying heavy weights.

The medical expert who testified for the insurance carrier testified that there was no evidence of a disc injury, and described plaintiff’s condition as a subsiding lumbo-sacral strain which would have no significant effect on plaintiff’s ability to work.

Where the evidence is in such sharp disagreement as to the nature of the claimant’s injury, the conflict must obviously be resolved by the jury. The jury’s verdict in this case makes it clear that they accepted the testimony of plaintiff’s doctor to the effect that plaintiff was suffering from a protruded disc. Both doctors were in agreement that a man suffering from such condition would be disqualified from doing work which involved stooping, bending, lifting and carrying heavy objects. In this state of the evidence, the jury, if it accepted the diagnosis of Dr. McCabe as being correct, was justified in finding that plaintiff was permanently and totally incapacitated.

The majority opinion relies exclusively on the testimony, which is undisputed, that plaintiff returned to his duties with Braniff and continued to work, without substantial interruptions, until one week before the trial of the case.

Plaintiff testified that he returned to work because he had no other source of income and needed money to pay his bills. When he returned to work he wore a corset brace with metal stiffeners which Dr. McCabe had prescribed. He testified that he was unable to do the work as well as before and suffered from recurring pain. About a week before the case came to trial, according to plaintiff’s testimony, the pain in his back was so severe that he was unable to stoop or bend. He consulted Dr. McCabe again, and was told to refrain from working.

One of plaintiff’s co-employees testified that, prior to the injury sustained by plaintiff on April 1, 1964, he had never heard plaintiff complain of his back. Since the injury, however, and especially during the six or seven months prior to the trial, he had observed that plaintiff had difficulty in lifting objects. This witness further testified that he and the other workers handled the heavy packages, and arranged among themselves that plaintiff would perform only the “easier jobs.”

Another fellow-employee testified substantially to the same effect, adding that plaintiff usually worked in the customs area where it was not necessary for him to handle heavy packages. After the injury of April 1, 1964, plaintiff worked a lot at the ticket counter, which only involved taking bags from a belt and putting them on a cart.

Plaintiff’s supervisor testified that a man holding the position held by plaintiff, that of cargo service man, was expected to keep himself in shape to do his normal duties. This witness stated that the work of a cargo man could not be considered light duty, and that if a cargo man could not continue to lift the weights which his work required there would no longer be a job for him.

The standard definition of “total incapacity” in Texas does not require that the injured person be reduced to a condition of complete and abject helplessness, or that there be an absolute disability to perform any kind of labor. A person is totally disabled if he is “disqualified from performing the usual tasks of a workman, in such a way as to enable him to procure and retain employment.” Texas Employers’ Ins. Ass’n. v. Mallard, 143 Tex. 77,182 S.W.2d 1000 (1944).

The law is well settled in this State that an injured employee is not necessarily precluded from recovering workmen’s compensation benefits for a period of time in which he was gainfully employed by reason of working and earning wages following the injury. Texas Employers’ Ins. Ass’n. v. Cummings, Tex.Civ.App., 364 S.W.2d 255, wr.ref. n.r.e. Nor is continued work after the injury a bar to a finding of total and permanent incapacity. Texas State Highway Dept. v. Kinsler, Tex.Civ.App., 230 S.W.2d 364, wr.ref.; Employers Mutual Liability Ins. Co. of Wis. v. Gallardo, Tex.Civ.App., 359 S.W.2d 933, wr.ref. n.r.e.; Zurich Ins. Co. v. Graham, Tex.Civ.App., 335 S.W.2d 673, wr.ref. n.r.e.; Aetna Casualty & Security Co. v. Depoister, Tex.Civ.App., 393 S.W.2d 822, wr.ref. n.r.e. Such continued employment is merely evidence to be considered by the jury along with other facts and circumstances. Consolidated Casualty Ins. Co. v. Baker, Tex.Civ.App., 297 S.W.2d 906, wr.ref. n.r.e.

In Aetna Casualty Ins. Co. v. Depoister, supra, the medical testimony differed radically, as here, as to the diagnosis and prognosis relative to the condition of the employee, but there was medical evidence supporting the finding of permanent and total incapacity. The insurance carrier there contended that the finding of total and permanent incapacity was without support in the evidence or, in the alternative, that it was so against the greater weight and preponderance of the evidence as to be manifestly unjust and wrong. This contention was based largely, as here, on the fact that since the accident the employee had been employed doing hard physical labor. The employee explained that he returned to work under the spur of necessity. The court held that the finding was not against the great weight and degree of the credible evidence.

In Texas Employers’ Ins. Ass’n. v. Price, Tex.Civ.App., 336 S.W.2d 304, no writ, the plaintiff’s doctor testified that plaintiff suffered 20% partial permanent disability. The evidence showed that, after the injury, plaintiff had continued to work until about a month before the trial. However, he testified that he experienced pain while he was working and continued to work only because he had many bills to pay. The jury found that plaintiff was permanently and totally incapacitated. The Court held that there was ample evidence to support the jury’s findings. After noting that the testimony of plaintiff’s own doctor was inconsistent with the jury finding, the Court said:

“ * * * It is the province of the jury, however, to determine the weight to be given evidence and to reconcile conflicts or inconsistencies therein. * * The matter under consideration was not one for experts and skilled witnesses alone. Appellee testified that he could not work without pain, that his back was getting worse, that he was having to wear a brace with which he had previously been fitted by Dr. Brelsford. Dr. Brels-ford testified that appellee had sustained permanent incapacity although not total, but that he would not pass him to follow his trade. The fact that appellee’s testimony was in conflict with expert opinion testimony concerning the extent of his disability did not, under the circumstances, render it insufficient to support the verdict.” 336 S.W.2d at p. 308.

In Texas Employers Ins. Ass’n. v. Smith, Tex.Civ.App., 374 S.W.2d 287, no writ, the Court, after setting out testimony very similar to that which is reflected by the statement of facts in this case, held that there was sufficient evidence to support a finding of permanent and total incapacity, saying:

“The plaintiff in the case at bar has been working almost continuously since returning to work following his operation, and under his own testimony has been doing most of the work required of him, although doing so, in pain. However, it is well settled that the fact a claimant continued to work and earn money since his injury is not controlling on the issue of total and permanent disability,- but it is evidence to be considered with other facts and circumstances before the jury.
“Also, the Commission of Appeals, wrote in Davies v. Texas Employers Ins. Ass’n., Tex.Com.App., 29 S.W.2d 987:
“ * * In determining the question of total permanent disability, that determination will not be controlled necessarily by the fact that the injured employee has been able, since the injury, to earn money. While the testimony we have stated, tends to show that the employee had not suffered a total incapacity for work, as a proximate result of his injuries, it is not of that nature and character which, as a matter of law, has the legal effect to nullify the testimony which tends to show that he had so suffered. The jury exercised its privilege to decide the issue presented from all the facts in evidence adversely to the defendant in error, and, the verdict being supported by substantial testimony, we are compelled to overrule these assignments.’
“Defendant presents an able argument in support of its position, and relies heavily upon Texas Employers Ins. Ass’n. v. Moran, Tex.Civ.App., 261 S.W.2d 855, and Texas Employers Ins. Ass’n. v. Vineyard, Tex.Civ.App., 316 S.W.2d 156. In each of these cases, the findings of total and permanent disability were found by the Court of Civil Appeals to be against the great weight and preponderance of the evidence. Also, in each of these cases, the plaintiffs had been able to obtain as well as retain employment. In the present case at bar, the plaintiff had stayed on the job with the same employer, and therefore had not passed a pre-em-ployment examination, and being on the same job, had been able to get those following him on the next shift to perform some of the tasks required of him which he testified he could not do. The testimony of Dr. John Albert Brown that he would not pass the plaintiff for employment, together with the other testimony, raised an issue for the jury to determine, as to whether the plaintiff was physically able to obtain employment.”

The rule relied on by the Courts in the above cases is applicable even where, after the injury, the employee earns more money than he did before the accident. Texas Casualty Ins. Co. v. Beasley, Tex.Civ.App., 381 S.W.2d 236, no wr.; Trinity Universal Ins. Co. v. Scott, Tex.Civ.App., 342 S.W.2d 348, wr.ref. n.r.e., citing numerous authorities.

The films introduced in evidence by defendant were taken on May 5 and 6, 1965, a few weeks prior to the trial. Dr. Stool, who testified for the insurer, stated that it was possible that a person suffering from a protruded or herniated disc would experience periods of remission during which there would be an absence of symptoms such as pain and numbness. However, during periods of exacerbation, the symptoms will recur. This expert testimony is consistent with plaintiff’s description of his condition. He stated that on some days the pain was not very severe. There is nothing to indicate that, on the dates when the motion pictures were taken, plaintiff was not enjoying a period of remission.

In addition, the films in question ran only for about thirty minutes. It is thus evident that they depicted plaintiff’s activities only during a relatively insignificant period of the two days during which the films were taken. If allowance is made for the film footage which does not show plaintiff at work, the result is that the films show only very brief intervals of the activities of plaintiff. The existence of pain in the subject is not necessarily reflected in motion pictures. Further, the films do not show the aftermath or the results of plaintiff’s activities. Under these circumstances, a court is not justified in according conclusive weight to the films in question.

After examining all the testimony, both that supporting the verdict and that militating against it, I cannot agree that the jury’s findings of total and permanent disability are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

After finding that the injury suffered by plaintiff on April 1, 1964, resulted in plaintiff’s total and permanent disability, the jury found, in answer to Issues 16 and 17, that an injury sustained by plaintiff on another occasion contributed to plaintiff’s incapacity, and that 100% of plaintiff’s present incapacity was due to such other injury. There is no evidence in the record supporting such findings, and the trial court properly disregarded them in entering judgment for plaintiff.

I would affirm.


author: WERLEIN, Justice.

text:
    Horace NELMS, Appellant, v. Steve CHAZANOW, Appellee.
    No. 14747.
    Court of Civil Appeals of Texas. Houston.
    June 9, 1966.
    Rehearing Denied June 23, 1966.

      Crane & Keenan, Rita Keenan, Houston, for appellant.
    Baker, Heard, Elledge & Sullivan, Lowell B. Hays, Houston, for appellee.
   WERLEIN, Justice.

Our opinion of May 19, 1966 is withdrawn, and the following opinion is substituted therefor.

This is an appeal from a summary judgment in favor of appellee, Steve Chaza-now. The court considered, in granting such judgment, appellee’s second motion for summary judgment, plaintiff’s first amended • petition and defendant’s first amended original answer, the deposition of appellant and the deposition of appellee, eight certified copies of assignments of interests in oil leases, the affidavit of plaintiff in answer to defendant’s motion for summary judgment, the briefs and arguments of counsel. The court concluded that there was no genuine issue as to any material fact insofar as the affirmative defense of limitations pleaded by appellee was concerned and hence appellee was entitled to judgment as a matter of law.

Appellant alleged in his first amended original petition that on November 30, 1960, appellant and appellee made, executed and delivered their one certain promissory note of even date therewith in the principal sum of $8,000.00 to the National Bank of Commerce of Houston, and that appel-lee co-signed said note for a valuable consideration in the amount of $4,000.00, and later failed and refused to make any payment thereon, so that appellant was compelled to pay the same, which he did, together with interest, in the total amount of $8,120.00, whereby appellee became liable to appellant for one-half of the total amount of said note with interest, but although often requested by appellant to do so appellee failed and refused to pay the same.

Appellant also alleged in the alternative that he negotiated the purchase of an interest in certain oil and gas mineral leases in Jackson County, Texas, on May 2, 1960, and assigned a ⅜4⅛ interest therein to appellee for the sum of $1,000.00; that subsequently appellant and appellee jointly agreed to purchase a %eth interest in said leases for $10,000.00, and on September 1, 1960 appellant assigned to appellee a %4ths interest in said leases for the sum of $5,000.00 pursuant to such agreement; that appellee made two payments of $500.-00 each on the $5,000.00 indebtedness, being the purchase money for his share under the jointly acquired interest, and has failed and refused to pay the balance due thereon, and that appellee was indebted to appellant in the amount of $4,000.00. Appellant also sued for attorney’s fees.

Appellee in his first amended original answer alleged that appellant’s cause of action is one for debt not evidenced by any contract in writing, being an action by one obligor on a promissory note against his co-obligor for contribution, and that said cause of action, if such there was, accrued on February 28, 1961, the date on which said note was paid in full by appellant, and that said cause of action which was not filed until March 20, 1964, was barred by the two year statute of limitations of the State of Texas. Appellee also pleaded failure and want of consideration, and with respect to appellant’s alternative cause of action that the same accrued on September 1, 1960 and was barred by the two year statute of limitation, Article 5526, Vernon’s Annotated Texas Statutes.

In his deposition, appellant testified in substance that after he had acquired a %2nds working interest in and to certain mineral leases in Jackson County, Texas, he conveyed to one Mrs. Colby a %iüis thereof for $10,000.00, and at the same time he assigned to appellee an undivided ⅜4⅛ interest in said leases without charge as a part of the Colby deal, and retained a Yeith interest. Thereafter Mrs. Colby concluded that she had not made a wise purchase and she demanded the return of her $10,000.00. Appellant and ap-pellee then agreed that they each would pay one-half of such amount to Mrs. Colby upon her reconveyance of said %4ths interest to appellant, and that appellant would convey a %4ths interest to appellee and retain the other %4ths interest; that it was further agreed between appellant and ap-pellee that they would borrow $10,000.00 from the National Bank of Commerce in Houston, Texas, to finance the payment to Mrs. Colby, and that each of said parties would be responsible for the payment of one-half of such obligation to the bank; that such agreement was not in writing.

The evidence shows that pursuant to such oral agreement appellant and appellee did borrow $10,000.00 from the bank, and that appellant and appellee executed their promissory note as co-makers payable to the bank in the sum of $10,000.00 and that such amount was paid to Mrs. Colby, and she conveyed to appellant all of her undivided %4ths interest in said leases, and that appellant then conveyed to appellee a %4ths interest in said leases. The note was reduced by equal payments by appellant and appellee to a balance of $8,000.00. Appellee refused to make any additional payments on the note or renewal note, although a co-signer thereof, whereupon on demand by the bank, appellant, on February 28, 1961, paid the entire amount due the bank plus accrued interest, and on such date said note was marked paid and can-celled by the bank.

Appellant asserts that the court erred in entering a summary judgment in favor of appellee based on the sole ground that the two year statute of limitations instead of the four year statute, applied to his cause of action, since such cause of action is based on a written contract as evidenced by instruments contemporaneously executed by the parties, or at least a fact issue was raised with respect thereto. He further contends that the four year statute of limitations also applies because appellant and appellee had entered into a joint venture, or a material issue of fact was raised with reference thereto, and furthermore that there was a fact issue as to when appellant’s cause of action accrued.

In his affidavit attached to his answer to appellee’s motion for summary-judgment, appellant stated that on February 28, 1961 he made a payment of $500.00 to the bank “and eventually went to the bank and paid off the full amount of the note.” In his deposition appellant testified that he did not know exactly when he paid the note in full, but guessed that it was on February 28, 1961. However, when questioned with respect to his cancelled checks to the bank which were handed to him to refresh his memory, he testified that the following payments were made by him on the note: $575.00 on September 1, 1960, $568.00 on November 30, 1960, $500.00 on February 28, 1961, $620.00 on February 28, 1961, and $7,000.00 on February 28, 1961. On the $7,000.00 check dated February 28, 1961 there was a notation at the bottom: “payment in full on note,” and “Steve Chazanow.” Disregarding interest, such payments plus the amounts paid by appellee aggregate $10,000.00, the original amount of the note. It is our view that this evidence shows definitely that the unpaid balance of the note was paid off by appellant on February 28, 1961, and that his cause of action against appellee for contribution accrued at such time.

The law is well settled in this State that each joint obligor in a contract is liable to the other for contribution to indemnify him for any payments made in excess of his prorata share. The joint obligor making such payment in excess of his share has a right of action upon the implied promise of the other joint obligor for reimbursement. The statute of limitations commences to run against such right of action from the date when the right of action upon each payment accrues. In the instant case appellant’s cause of action upon the implied promise arising out of the relationship of the parties and not upon a written contract was barred in two years from the date when the right of action upon each payment accrued. Article 5526, V.A.T.S.; Faires v. Cockerill, 1895, 88 Tex. 428, 31 S.W. 190, 28 L.R.A. 528; Gaines v. Gaines, Tex.Civ.App.1938, 119 S.W.2d 427; Darrow v. Summerhill, 1899, 93 Tex. 92, 53 S.W. 680; Yndo v. Rivas, 1915,107 Tex. 408,180 S.W. 96. See also Downing v. Jeffrey, Tex.Civ.App., 173 S.W.2d 241, error ref., w. m.

Appellant contends, however, that, construing together all the written instruments that were executed contemporaneously on September 1, 1960, a written contract was created, and that therefore the four year statute of limitations is applicable to appellant’s cause of action. We do not agree. The agreement between appellant and ap-pellee was oral and was not evidenced by any writing whatever or by any written memorandum. Appellant asserts in his brief that the contract in writing consisted of the following: appellee’s check which was payable to the order of the National Bank of Commerce of Houston in the sum of $575.00 dated September 1, 1960, with notation in the margin thereof, “½2 additional interest in Jackson County 500.-00 principle 75.00 interest,” drawn on ap-pellee’s checking account at Medical Center National Bank; payment on September 1, 1960 by appellant and appellee each of $500.00 plus interest on the $10,000.00 note; and execution by them of a new $9,000.00 note to the bank; and the execution and delivery by appellant to appellee of four assignments dated September 1, 1960, each containing a recited consideration of $10.-00 and other valuable considerations paid by Steve Chazanow, conveying to appellee an undivided %4ths interest in and to the leases that had been reconveyed to appellant by Mrs. Colby.

In support of his contention that a written contract resulted from the execution of the foregoing instruments, appellant relies upon the following authorities, among others: First Prize v. Fireman’s Fund Ins. Co. of California, Tex.Civ.App., 269 S.W.2d 939, writ, ref., n. r. e.; Board of Ins. Com’rs v. Great Southern Life Ins. Co., 1951, 150 Tex. 258, 239 S.W.2d 803; Bramlett v. Jenkins, Tex.Civ.App., 231 S.W.2d 539; and Guadalupe-Bianco River Authority v. City of San Antonio, 1947, 145 Tex. 611, 200 S.W.2d 989. The rule of law enunciated in such cases is well expressed by our Supreme Court in Board of Insurance Com’rs v. Great Southern Life Ins. Co., supra, as follows: “It is a generally accepted rule of contracts that ‘Where several instruments, executed contemporaneously or at different times, pertain to the same transaction, they will be read together although they do not expressly refer to each other.’ ”

In the instant case the oral contract testified to by appellant is unambiguous, complete in itself and requires no explanation. The instruments which appellant refers to in his brief were executed in performance of such oral contract between appellant and appellee. They show that pursuant to the oral agreement appellant and appellee did make certain payments on the note held by the bank, and that appellant also in pursuance thereof conveyed to appellee an undivided %4ths interest in and to the leases that had been recon-veyed to appellant by Mrs. Colby. Construing them and the oral contract together, there is still only an oral contract between the parties to do certain things which were in part done. Under the authorities in this state a contract partly oral and partly written is considered an oral contract to which the two year statute of limitations applies. See Barbier v. Barry, Tex.Civ.App., 345 S.W.2d 557; Strickland Transp. Co. v. Navajo Freight Lines, Inc., Tex.Civ.App., 387 S.W.2d 720; Purdin v. Jenkins, Tex.Civ.App., 337 S.W.2d 418; Teneha Oil Company v. Blount, Tex.Civ.App., 368 S.W.2d 655.

Appellant asserts that the four year statute of limitation applies to his claim because of a joint venture between him and appellee in connection with the purchase of Mrs. Colby’s %4ths interest in the leases in question. We do not agree with this contention. It will be observed that appellant has not alleged that there was a joint venture entered into between him and appellee, nor has he sued for an accounting, but rather for a liquidated amount in the sum of $4,000.00 owing by appellee. He alleged that after he acquired the %4ths interest from Mrs. Colby he assigned to ap-pellee on September 1, 1960 a %4ths interest in said leases, and that appellee paid a total of $1,000.00 on the $5,000.00 indebtedness or purchase money owing by him. In his affidavit appellant does not state that he and appellee would jointly own the %4ths interest or jointly share in the profits and losses therefrom. The evidence shows that they did not.

Appellant testified in his deposition that the Colby %4ths interest was reconveyed to him and that he conveyed one-half or %4ths thereof to appellee on September 1, 1960. Thereafter appellant and appellee each owned an undivided %4ths interest in the leases reconveyed to appellant by Mrs. Colby, and each held his undivided interest separately from the other. There was no community of interest between them of any kind nor any agreement with respect to sharing profits or losses.

In Holcombe v. Lorino, 1935, 124 Tex. 446, 79 S.W.2d 307, the court said:

“Nor does the petition invoke the doctrine of joint adventures. The general rule with respect to joint adventures is stated in 33 C.J. p. 841, as follows: ‘A joint adventure has been aptly defined as a “special combination of two or more persons, where in some specific venture a profit is jointly sought without any actual partnership or corporate designation.” ’ ”

The court further stated:

“Nowhere in the petition is it alleged that there is a community of interest, either in the losses or profits, of the business conducted by Lorino. Nor does it show a joint interest or labor. The authorities sustain the general rule that there must be a community of interest and participation in the profits. * * * and the contract pleaded is entirely lacking in those essential requisites necessary to constitute a joint adventure.”

So, in the instant case appellant’s pleading fails to allege facts which would establish the existence of a joint venture between him and appellee, in connection with the purchase of Mrs. Colby’s %4ths interest in the mineral leases. Appellant’s pleading and the evidence show that he and appellee each owned separately a %4ths interest or one-half of the interest recon-veyed to appellant by Mrs. Colby. The “runs statement” attached to said affidavit shows that the net amount distributed from the development of said leases was paid on appellee’s runs to appellee only, and on appellant’s runs to appellant only, and also that the expenses charged against the leaseholders were charged to appellant only on his interest and to appellee only on his interest in said leases.

In his motion for rehearing appellant asserts that the assignments executed by him to appellee on September 1, 1960, conveying the %4ths interest in the leases, certified copies of which are on file in this cause and contained in the supplemental transcript, constitute a contract in writing to which the four year statute of limitations is applicable. Hereinabove we have set out the substance of appellant’s alternate cause of action. In the absence of any exception thereto and construing it favorably to appellant, it is our opinion that appellant has alleged a cause of action on a written contract consisting of said assignments. Each of such assignments recites a consideration of $10.00 cash and other valuable considerations paid by Steve Chazanow, * * This suit was filed on March 20, 1964, less than four years after the assignments were executed, delivered and accepted by appellee. Although the written instruments together, including the note to the bank and checks which were not writings between the parties, do not create a written contract between them, as hereinabove stated, the assignments in themselves do constitute a written contract between the parties.

The assignments conveying the %4ths interest in the leases to appellee are all duly signed, executed and recorded. Under the authorities in this State, although appellee did not sign the assignments, his acceptance thereof created a written contract between him and appellant, to which the four year statute of limitation applies. In Orbeck v. Alfei, Tex.Civ.App. 1925, 276 S.W. 947, the appellee executed a deed to appellant reciting a cash consideration of $3,000.00, besides the assumption of various items of indebtedness. The court held that when a contract between two parties is reduced to writing and signed by one of them and accepted by the other, it becomes, in contemplation of law, a written contract, and will be so treated by the courts of this State. The court cited Clegg v. Brannan, 111 Tex. 367, 234 S.W. 1076; Martín v. Roberts, 57 Tex. 564; and Elder, Dempster & Co. v. St. Louis Southwestern Ry. Co., 105 Tex. 628, 154 S.W. 975. The court further stated that the recital in the deed is prima facie evidence of the amount of consideration and of the payment of the same, but subject to refutation on either point by evidence. The court heard evidence on both of such issues, although the deed recited the receipt of the cash consideration in the sum of $3,000.00.

In Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626, our Supreme Court said:

“The general rule is that the grantee in a deed accepted by him is a party to the deed, even though he does not sign it, and that he is concluded by recitals in the deed and by reservations contained therein in favor of the grantor. Martin v. Roberts, 57 Tex. 564, 568; Orbeck v. Alfei, Tex. Civ.App., 276 S.W. 947; 21 Corpus Juris, p. 1095, § 81; 19 Am.Jur., p. 627, Sec. 29, p. 624, Sec. 26.”

See also Miller v. Gahagan, Tex.Civ.App. 1958, 316 S.W.2d 160; International Printing Pressmen & Assistants Union v. Smith, 1946, 145 Tex. 399, 198 S.W.2d 729; State v. Davis, Tex.Civ.App. 1963, 368 S.W.2d 658.

The law is well settled that where the consideration in the deed is a recited consideration rather than a contractual one, recitals of a written instrument as to consideration are not conclusive and parol evidence may be introduced to show what the real consideration was, and also whether it was paid or not paid in full or in part. Orbeck v. Alfei, supra; Gulf, C. & S. F. Ry. Co. v. Jones, 1891, 82 Tex. 156, 17 S.W. 534; Grogan v. Lea, Tex.Civ.App. 1925, 269 S.W. 1070; Silliman v. Oliver, Tex.Civ.App. 1921, 233 S.W. 867, writ ref.; Lindsay v. Texas Iron & Steel Co., Tex.Civ.App. 1928, 9 S.W.2d 287, writ ref.

In the instant case the evidence is undisputed that appellant did take the assignments from Mrs. Colby in his name and conveyed a one-half interest therein, or a %4ths interest in the leases, to appellee for a consideration of $5,000.00. Appellee testified in his deposition that he agreed to pay either appellant or the bank one-half of the money they borrowed. He did pay a total of $1,000.00 on the $5,000.00 indebtedness owing by him for the %iths interest assigned to him by appellant, leaving a balance of $4,000.00 due on his obligation.

In resolving all doubts as to the existence of a genuine issue of material fact most favorably to appellant, we are of the opinion that the summary judgment in favor of appellee should not have been granted. Great American Reserve Ins. Co v. San Antonio Plumbing Supply Co., Tex. 1965, 391 S.W.2d 41; Gulbenkian v. Penn, 1952, 151 Tex. 412, 252 S.W.2d 929.

Reversed and remanded.


author: CADENA, Justice.

text:
    LANE’S ALUMINUM INDUSTRIES, INC., d/b/a Lane’s Aluma Craft Awning Company, Inc., Appellant, v. Clarence P. JONES et ux., Appellees.
    No. 14455.
    Court of Civil Appeals of Texas. San Antonio.
    May 18, 1966.
    On Remittitur June 22, 1966.

      Lagerquist, Shaw & Davis, San Antonio, for appellant.
    Frank Y. Hill, Jr., San Antonio, for ap-pellees.
   CADENA, Justice.

This suit was instituted by appellees, Clarence P. Jones and wife, Virginia Jones, against Lane’s Aluminum Industries, Inc., d/b/a Lane’s Aluma Craft Awning Company, Inc., J. D. Lane and Harrison Price, seeking actual and exemplary damages for trespass and the wrongful taking of an aluminum awning. In answer to special issues, the jury found that appellant, Lane’s Aluminum Industries, Inc., knew or should have known that appellees were in possession of the awning and that J. D. Lane, herein called “Lane,” president of appellant, was actuated by malice in removing the awning. The market value of the awning was found to be $2,380.00, and the jury allowed appellees exemplary damages in the sum of $7,500.00. The trial court entered judgment in favor of appellees against appellant, but denied them any recovery against J. D. Lane and Harrison Price.

One W. E. Hisaw, who was president of Taylor Freezer Sales and Distributing Co., a corporation, hereinafter called “Taylor,” was in the business of selling drive-in restaurant “packages” to persons desiring to operate drive-in restaurants. The “package” consisted of a building with necessary equipment, as well as awnings under which the customers of the restaurant would park their cars. Prior to the spring of 1961, Hisaw had, on several occasions, purchased buildings and aluminum awnings from appellant. On all occasions prior to 1961, Lane knew that at the time Hisaw purchased the building and awning he had already arranged for the sale of the “package” to a customer.

In the spring of 1961, Hisaw purchased a building and the awning in question from appellant. The purchase was on open account, no mortgage or conditional sale contract being executed by Hisaw. The building and awning were installed at 447 New Laredo Highway, in the City of San Antonio. Apparently, the land on which the building was erected was leased from its owner, Melvin Pickett, under an instrument which provided that the improvements should remain the property of the lessee.

On April 21, 1961, Taylor, acting through its president, Hisaw, sold the Laredo Highway “package” to David Ellis. To secure payment of the unpaid portion of the purchase price, Ellis executed a chattel mortgage of the building and equipment, including the awning in question, to Taylor.

On June 12, 1961, Taylor, acting through Hisaw, assigned the Ellis contract and chattel mortgage to Glenn Foster, Inc., hereinafter called “Foster.” This chattel mortgage, together with the assignment thereof, was recorded on June 22, 1961.

On September 20, 1961, Hisaw executed a chattel mortgage to appellant covering the awning in question, as well as the building which he had purchased from appellant. This mortgage was assigned by appellant to a bank on September 26, 1961, and filed for record on October 2, 1961.

Ellis was unsuccessful in his operation of the drive-in restaurant and defaulted in the payments due under the contract and mortgage which had been assigned to Foster. During the summer of 1962, apparently in July, 1962, Ellis vacated and abandoned the premises, telling one of Foster’s employees that Foster could “have it.” Foster then demanded of Hisaw that Taylor make the payments, but Taylor was unable to do so. Foster then directed Hisaw to attempt to find a buyer for the business. Hisaw induced appellees to purchase the business, and on August 28, 1962, Foster sold the business to appellees.

On August 30, 1962, appellees leased the land on which the business was located from its owner, Pickett. This lease contained a provision that the improvements on the land should remain the property of the lessees. Appellees then began working during the day, cleaning the building and making preparations for opening the business.

About two weeks prior to September 11, 1962, Lane instructed Price, whom Lane described as appellant’s “commission agent,” to repossess the awning because of Hisaw’s failure to pay for it. On September 11 one of appellant’s crews was in San Antonio, and Price took the crew to the Laredo Highway location at about 9:00 p. m. and pointed out the awning to them. Before the crew began the task of removing the awning from the building, Price telephoned Lane, who was in Houston, and was told by Lane to cut the awning off the building and remove it. The removal of the awning was completed sometime after midnight.

Since it is undisputed that at the time the awning was removed appel-lees were in actual possession thereof, it was incumbent on appellant to show title in itself superior to the rights of the ap-pellees as possessors. 56 Tex.Jur.2d, Trespass, § 26, p. 34. The evidence establishes that, at the time the awning was taken, appellant had no rights whatever. The only right to possession on which appellant might rely would be dependent on its right of foreclosure under the mortgage given to it by Hisaw. But the evidence is undisputed that appellant had assigned, this mortgage to a third party. In the absence of evidence showing a re-assignment of the mortgage to appellant, or that appellant was acting on behalf of its as-signee in removing the awning, it must be concluded that the removal of the awning by appellant was wrongful.

Appellant next urges that the evidence does not support the award of exemplary damages. There is no evidence which would permit the inference that Lane, or any officer of appellant, had reason to believe that the mortgage under which appellant claims had been re-assigned to it. In this respect, the case differs from O’Hara v. Ferguson Mack Truck Company, Tex.Civ.App., 373 S.W.2d 507, wr. ref. n. r. e. There the trespasser, before taking possession of the mortgaged property, had consulted the bank to which he had assigned the mortgage, and had been told that the mortgage would be re-assigned to him. In O’Hara, then, the trespasser was, at most, negligent in not ascertaining that the promised re-assignment in fact had been executed. Here there is nothing to indicate that appellant or any of its officers had any reason to believe that a re-assignment of the mortgage would be executed, and therefore there is no basis for claiming a good faith belief that appellant had any rights under the mortgage which it no longer owned.

Lane, president of appellant, testified that he had no knowledge that any person but Hisaw was claiming any interest in the awning. Even if this testimony be true, appellant would have no right to repossess the awning from Hisaw, since appellant had assigned its mortgage. However, the evidence showed that more than a month before the awning was removed, appellant had filed a suit in Bexar County, Texas, seeking foreclosure of the Hisaw mortgage. In its petition in that case, appellant alleged that a subsequent mortgage had been executed to Foster, and asked that such mortgage be set aside. The rule is that pleadings in other actions which contain statements inconsistent with a party’s present position are receivable as admissions. Hamilton v. Van Hook, 26 Tex. 302 (1862) ; Lombardino v. Firemen’s and Policemen’s Civil Service Commission, Tex.Civ.App., 310 S.W.2d 651, wr. ref. n. r. e. Under this evidence, the jury was justified in concluding that, more than a month before the removal of the awning, appellant knew that persons other than Hisaw were claiming an interest in the awning. In addition, the evidence established that Lane, appellant’s president, knew that on each prior occasion when Hisaw had purchased buildings and awnings from appellant, it was for the purpose of immediate resale to a third party, who had already agreed to purchase a drive-in package from Hisaw.

Since the evidence established that appellant had no right to take the awning, and since the jury was justified in concluding that appellant had actual notice that others besides Hisaw were claiming an interest therein, we cannot say that the finding of malice on the part of appellant’s president is contrary to the great weight and preponderance of the evidence.

The only evidence as to the market value of the awning on the date it was removed came from Price, one of the defendants. His testimony was to the effect that the market value of a new awning was $2,380.00. In his opinion, taking depreciation into consideration, the market value of the awning in question on September 11, 1962, would be seventy-five or eighty per cent of the market value of a new awning. This evidence would indicate that the awning in question was worth no more than $1,904.00 at the time of its removal.

The evidence of appellees’ other value witness, Fred Flores, related exclusively to the difference in market value of the drive-in “package” with and without an awning. Since the value question was not submitted to the jury on a “before and after” basis, there is nothing in the testimony of Flores to support the jury’s finding that the value of the awning was $2,380.00.

We find no error in the judgment below except that portion which awards appellees the sum of $2,380.00 as actual damages for the removal of the awning. Such award is excessive in the amount of $476.00. If appellees will file a remittitur in the sum of $476.00, within ten days after the announcement of this decision, the judgment of the trial court will be reformed accordingly, and, as reformed, will be affirmed. Otherwise, the judgment of the trial court will be reversed and the cause remanded for a new trial.

On Filing of Remittitur.

In our opinion delivered and filed on May 18, 1966, this Court suggested that if appellees would file a remittitur in the amount of $476.00 within ten days, the judgment of the trial court in favor of ap-pellees would be reformed and, as reformed, affirmed. Appellees filed the suggested remittitur on May 20, 1966.

Accordingly, the judgment of the trial court is reformed in conformity with such remittitur and, as so reformed, is affirmed.


author: CLAYTON, Justice.

text:
    Richard G. FENNER, Relator, v. Hans E. BROCKMOLLER, Judge, 120th District Court, et al., Respondents.
    No. 5785.
    Court of Civil Appeals of Texas. El Paso.
    May 18, 1966.

      Woodward & Christie, Joe W. Christie, El Paso, Brigman, Martin & Smith, Donald L. Martin, Houston, for relator.
    William Duncan, El Paso, for respondents.
   OPINION

CLAYTON, Justice.

This is an original proceeding in this court requesting Writ of Mandamus directed to the Judge of the District' Court of El Paso County, Texas.

The original suit, from which this matter arose, is a damage suit arising out of an automobile collision in which one J. A. Hovel, Jr. was plaintiff in the court below and Richard G. Fenner, Relator here, was defendant. The matter was tried to a jury and submitted on special issues. The jury failed to answer Special Issues Nos. 1 and 3, inquiring whether the defendant failed to keep a proper lookout and failed to apply his brakes as a reasonable person would have, and the related questions, whether these failures were each a proximate cause of the collision, but in answer to the 5th and 6th special issues the jury found that the plaintiff failed to keep a proper lookout and that this was a proximate cause of the collision. Also, in answer to Question No. 7, that plaintiff drove his vehicle into the path of defendant’s vehicle, but failed to answer Issues 8 and 9 that this act was negligent and a proximate cause of the collision, which left the verdict incomplete in these respects. The jury found that the collision was an “avoidable accident”, and on the damage issue, that in place of damages, the jury found “no settlement”.

No objection was made to the issues as submitted, nor were any other special issues requested by either side.

After the verdict was read and the jury discharged, defendant filed his motion for judgment on the verdict and plaintiff filed a motion for a mistrial. This action is to compel the trial court to enter judgment for defendant on the verdict.

As set out by Relator: “The sole question for this Court to determine is whether or not the trial judge, in refusing to enter and render a judgment in conformity with the verdict, failed to perform a ministerial duty. If there was such a failure then it is the settled law of this state that Mandamus will lie.” It is, of course, Relator’s contention that the entry of judgment was purely ministerial, while Respondent Judge Brock-moller contends that his actions involved the exercise of judicial discretion.

Before going into this matter, it is to be noted that J. A. Hovel, Jr., plaintiff in the court below, was not originally made a party to this application for mandamus. This failure was called to the attention of this court by the Respondent, Brockmoller, who, in his answer to the petition, asserted that this court was without jurisdiction to consider the matter since adverse parties in suits were necessary parties to a mandamus proceeding to compel the court below to set aside orders or to enter judgment, and the absence of such necessary parties is fatal to the action. We are cited to Lowe and Archer, Texas Practice, Injunctions and other Extraordinary Proceedings, where, in section 482 on page 470, this authority recites :

“All persons or entities whose rights will be adversely affected are necessary parties in mandamus proceedings instituted in either the trial or appellate courts ⅜ ⅜

and

“ * * * The absence of necessary parties is fatal to the cause of action, and judgments rendered without their joinder are fundamentally erroneous, and the courts may take cognizance of their absence at any state of the proceedings. Adverse parties in suits are necessary parties to mandamus proceedings * * * to set aside orders made therein; to render judgment; * * * ” etc.

We have before us a motion on the part of Relator for leave to name the said Hovel an additional respondent and to file amended petition for mandamus, which motion has heretofore been placed with the case. The motion is now considered and is granted to the extent of naming the said J. A. Hovel, Jr. an additional party respondent in this cause, and otherwise the motion is overruled; but in view of the disposition we make of this case, and in order to avoid further delay, the said J. A. Hovel, Jr. is not compelled to file any response to the application in addition to that of Brock-moller.

Considering the application on its merits, it is necessary to bear in mind certain recognized rules established in this state with regard to mandamus proceedings. As pointed out in Southwestern Bell Tel. Co. v. Shell, 266 S.W.2d 476, at page 478 (Tex.Civ.App., 1954, n. w. h.):

“The remedy by mandamus is summary, extraordinary, harsh and drastic, and when it is resorted to for the purpose of compelling a court to render a particular judgment when that court thinks no judgment should be rendered, its enforcement is attended by some delicacy. Accordingly, we believe that when there is any reason which could justify the action of the court in declaring a mistrial, a writ of mandamus requiring him to enter a judgment cannot be issued.”

And further:

“While mandamus lies to compel a court to render judgment when the petitioner has an absolute right to such judgment, the petitioner has the burden of showing a clear right to such relief.” (Citing cases)

And:

“Not only does the petitioner have the burden of proving all the facts necessary to entitle him to the writ of mandamus, but he must negative all defensive facts. ‘The propriety of issuing the writ is therefore not to be determined by the defense which the official may interpose, but by the allegation and proof of facts which show affirmatively and clearly that under the particular circumstances he is legally bound to perform the service. * * * (Citing cases)

Also:

“' * * * Manifestly one who seeks relief through this extraordinary proceeding must show himself entitled thereto under all applicable law, no matter where embodied.’ Westerman v. Mims, 111 Tex. 29, 227 S.W. 178, 179. As to negativing defensive facts by pleadings, see Ridgway v. City of Fort Worth, Tex.Civ.App., 243 S.W. 740.”

Also see Low and Archer, section 484 at page 474, 475:

“The plaintiff who seeks relief in a trial court, and the relator who seeks relief in an appellate court, must observe the following rules of pleading: First, the petition must not only demonstrate a clear right to the relief sought, a present and compelling necessity therefor, a clear duty on the part of the person or entity complained against, which he refuses to perform, but also must negative all defensive facts.”

We feel that Relator herein has failed in several respects to meet these requirements. However, we find a further compelling reason to deny Relator’s application for issuance of writ of mandamus. This court, in 1961, in Carnes v. Cunningham, 350 S.W.2d 59, at page 61 (Tex.Civ.App., 1961; n. w. h.), issued the following admonition:

“It is a general rule, and one recognized by Texas courts, that whenever the rendition of the judgment involves no judicial discretion, but is purely ministerial, the same may be compelled by mandamus. However, trial courts are vested with broad discretion relating to the control and disposition of their dockets, and the authority of appellate courts to intervene and to order a judge to enter judgment on a jury verdict is exercised with this extensive discretion in mind.”

And again, on page 62:

“It is true that Courts of Civil Appeals have authority to issue writs of mandamus to compel a district judge to enter a judgment where the undisputed facts support and require the rendition of the one judgment; or, where the jury has found all the facts in issue necessary to the rendition of such judgment. In such case, the rendition of judgment is purely ministerial, and may be compelled by mandamus. Art. V, sec. 6, Vernon’s Ann. Tex.Const.
“The case before us does not involve a situation where the court has refused to act at all. Here, Relators filed their motion for judgment, and it was considered and acted upon by the court. A writ may issue to compel the exercise of discretion where there has been a refusal to act at all, but it will not be granted for the purpose of directing the exercise of discretion in any certain manner. McDowell v. Hightower, 111 Tex. 585, 242 S.W. 753; O’Meara et al. v. Moore, 142 Tex. 350, 178 S.W.2d 510.
“The burden is upon Relators to show a clear and absolute right to the judgment sought to be compelled by mandamus. Where no clear duty to enter a particular judgment is shown to exist, the entry of judgment involves the exercise of judicial discretion and does not call for the performance of a purely ministerial act.”

Also, in 37 Tex.Jur:2d 681, sec. 48:

“Where the jury has failed to answer material issues, the court may not compel the entry of judgment on a special verdict, nor will mandamus direct the entry of judgment on a verdict that is so incomplete as to warrant the declaring of a mistrial.”

See also Firestone v. Hall, 143 S.W.2d 797, 800 (Tex.Civ.App., 1940; n. w. h.): “* * generally mandamus is not the proper remedy with which to correct or reverse erroneous rulings or judgments of an inferior tribunal, although in certain cases it may issue to compel an inferior court or judge to vacate or set aside a void order or judgment.” And in First Nat. Bank v. Chapman, 255 S.W. 807, 809 (Tex.Civ.App., 1923; n. w. h.) : “It is also a familiar rule that a writ of mandamus cannot be resorted to as a substitute for an appeal or writ of error. * * * It is also well settled that the process of mandamus must be founded upon a clear legal right in the relator; otherwise it will not lie.” (Citing cases).

We feel that the foregoing authorities are controlling in this case and that the trial court, in refusing to enter judgment for the Relator and in granting a motion to declare a mistrial, was in the exercise of discretion and therefore is not subject to compulsion under writ of mandamus.

The application of Relator is therefore denied.


author: BELL, Chief Justice.

text:
    Albert FRIEDMAN, Appellant, v. Aaron J. COHEN, Appellee.
    No. 14833.
    Court of Civil Appeals of Texas. Houston.
    June 9, 1966.

      Knight, Prappas, Rowland & Caldwell, Ellis F. Morris, Houston, Harry H. Broch-stein, Houston, of counsel, for appellant.
    Fred Parks and Ruby Sondock, Houston, for appellee.
   BELL, Chief Justice.

This is an appeal from a judgment of the trial court sustaining what appellee denominates special exceptions which were asserted against appellant’s second amended original petition and dismissing the cause with prejudice.

In the petition it is alleged that Cohen, the appellee, and Friedman, the appellant, entered into an agreement concerning a certain invention known as “production of burnt clay and flexible road base material.” We hereafter refer to the undertaking as “burnt clay project.” Appellant was to have the right, under the agreement, to pay the expenses involved in obtaining a patent and if he did pay the expense the appellant and appellee were to own the invention share and share alike. It is alleged that the expenses “paid” by appellant included that involved in ultimately obtaining a patent in the United States for the “burnt clay project.”

Appellant alleged that “a part of said agreement” was set forth in a letter from appellee to appellant dated June 15, 1961. The letter is not quoted in its entirety in the petition nor is it attached to the petition as an exhibit. The quoted parts are as follows:

“If you choose to continue the patent work according to their (Jacobi and Jacobi of Washington, D. C.) recommendations and pay all expenses involved therein, then you and I will participate, share and share alike, in all proceeds from the project.”

It is then alleged that the letter recognized that a man named Clay, who was also named a party defendant, would be entitled, according to the terms of the letter, to a 1% interest, though his interest was to be determined by the court. The petition then quotes this provision of the letter:

“If, for any reason you (Friedman, the appellant) decide to abandon the project before it is completed, your participation in the project will be limited to 1% for each $500.00 spent subsequent to the date of this letter, such participation never to exceed 50%.” Friedman signed the letter June 20, 1961.

The petition then alleges that the letter did not constitute the entire agreement but the agreement referred to work in connection with obtaining a United States patent and the expenses to be paid by appellant were in connection with obtaining the United States patent.

Appellant then alleges that in compliance with the agreement and at appellee Cohen’s request appellant paid the expenses contemplated by the agreement and they amounted to $1,350.00 and that this led to the issuance of a United States patent.

Appellant alleges that after Cohen received notice of the issuance of such patent and after Friedman had fully performed his part of the agreement, Cohen demanded that appellant pay an additional $16,000.00 or $17,000.00 for the purpose of obtaining foreign patents on the burnt clay project. Cohen contended appellant was obligated to do this before he could share on an equal basis in the project and if said amount was not paid appellant’s interest would be limited to 1% for each $500.00 advanced.

Appellant alleged it was never understood, contemplated or agreed that he would be called upon to pay costs of obtaining foreign patents but his payment of the expense of obtaining a United States patent entitled him to share equally with Cohen.

Allegation is that Cohen refuses to comply with the agreement.

Alternatively, appellant alleged there were ambiguities in the letter that made necessary the introduction of extrinsic evidence to ascertain the true intent of the parties.

Prayer was that the court declare the rights between the parties and that appellant obtain specific performance of the contract as it is alleged to be by appellant.

Appellee Cohen filed a general denial.

On December 16, 1965, appellee filed what is denominated “Defendant’s First Supplemental Answer”. It contained the following allegations that are denominated “special exceptions” :

“The defendant specially excepts to Plaintiff’s Second Amended Original Petition in its entirety for the following good and sufficient reasons:

“(a) The letter agreement dated June 15, 1961, entered into by and between Albert Friedman, Plaintiff, and Aaron J. Cohen, Defendant, (a copy of which agreement is attached hereto and incorporated by reference herein as though set out verbatim) is free of ambiguity from the language used therein and it is plain, clear and unambiguous and its construction therefore, is a matter of law for the court.

“(b) It will be the duty of the Trial Court, if there be a jury trial herein, to instruct the jury on the meaning of the letter agreement, and in such event it will in turn be the duty of the jury to accept without question the construction placed on the agreement by the Court.

“(c) There is no question of fact for the jury presented in this lawsuit.

“Wherefore, premises considered, this Defendant prays that the foregoing Special Exceptions be in all things sustained and that this cause be dismissed with prejudice.”

The judgment of the court recited that the hearing was on the special exceptions (a), (b) and (c) contained in the Defendant’s First Supplemental Answer. It recited that the court having considered Plaintiff’s Second Amended Original Petition, Defendant’s Supplemental Answer, together with the exhibit attached thereto and having heard the comments and argument of counsel relative to the exceptions, was of the opinion the letter agreement was clear, understandable and unambiguous and that the “Defendant’s Special Exceptions (a), (b) and (c) should be sustained and Plaintiff’s suit should be dismissed with prejudice.” The judgment then expressly dismissed the cause of action with prejudice.

We are of the view that the trial court was in error in sustaining what are called special exceptions and dismissing the cause of action with prejudice.

In the first place, the appellant in his second amended original petition stated a cause of action which if proven would entitle him to share equally in the burnt clay project with Cohen, the appellee.

In the second place, so-called “Special Exception (a)” is not a special exception at all. Apparently its purpose was to assert that the letter of June 15, 1961 was unambiguous and showed as a matter of law that appellant was not entitled to recover as he alleged. However, when it is considered with the language “the Defendant specially excepts to Plaintiff’s Second Amended Original Petition in its entirety for the following good and sufficient reasons” and then states the letter agreement “a copy of which agreement is attached hereto and incorporated by reference herein as though set out verbatim” (emphasis ours) is free from ambiguity, Defendant is not properly testing the sufficiency of the allegations of appellant’s pleading at all. The letter, as such, was not a part of the appellant’s petition. He merely gave its substance and as given it states a cause of action. The substance of what appellee’s so-called special exception does is to state generally, though somewhat inarticulately, that appellant cannot recover on his petition. The real effect is that Exception (a), is, when combined with the above quoted opening paragraph of his supplemental answer, a general and speaking demurrer. It is general because it in effect generally excepts to the petition. Paragraph (a) speaks because it does not point to a defect in the appellant’s petition, but it goes outside of the petition and sets up a matter on which he relies for a defense. General demurrers, have been abolished and speaking demurrers were never valid. Rule 90, Texas Rules of Civil Procedure; Riley v. Gray, 275 S.W.2d 171 (CCA), n. w. h.; Harold v. Houston Yacht Club, 380 S.W.2d 184 (CCA); McDonald, Texas Civil Practice, Sec. 7.22; Kelley v. Wright, 144 Tex. 114, 188 S.W.2d 983.

We think so-called Exceptions (b) and (c) are no more than assertions of substantive defenses.

Appellee contends that even if there was error in sustaining the exceptions, the error was harmless and cites Kelley v. Wright, supra, and Lederman v. Cunningham, 283 S.W.2d 108 (CCA), n. w. h. Those cases are inapplicable. In the Kelley case the court stated while the trial court had improperly sustained a general demurrer because such had been abolished, it would not reverse because it appeared as a matter of law that appellant could not plead a good cause of action. The Leder-man case held the same for the same reason, where the trial court had erroneously stricken a pleading of nuisance on a “motion to strike” that was too general.

We have no such case here. A sufficient cause was pled. Too, if we consider the letter set up by appellee, it does not as a matter of law refute appellant’s cause of action as stated in his second amended original petition.

Reversed and remanded.