author: MORROW, P. J.

text:
    S. C. CURRY v. STATE.
    No. 14360.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The possession of intoxicating liquor for the purpose of sale is the offense; penalty assessed at confinement in the penitentiary for one year.

The indictment is regular. There is no statement of facts or bill of exception in the record. Observing no errors and none having been pointed out, the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Roy HUGHES v. STATE.
    No. 14362.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    Davidson, Blalock & Blalock, of Marshall, ' for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for unlawfully driving an automobile upon a public street while under the influence of intoxicating liquor; penalty assessed at confinement in the penitentiary for one year.

The offense is denounced by article 802, P. C. 1925. The indictment is regular and regularly presented. A plea of guilty was entered. No bills of exception or statement of fact are found in the record. No fundamental error has been perceived or pointed out.

The judgment is affirmed.


author: HAWKINS, J.

text:
    P. C. McLEMORE v. STATE.
    No. 14368.
    Court of Criminal Appeals of Texas.
    April 8, 1931.
    Clarence J. Ginn, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for murder, the punishment assessed at ten years’ confinement in the penitentiary.

Appellant has filed his affidavit advising the court that he desires no further to prosecute his appeal.

In compliance with his request, the appeal is dismissed.


text:
    Jose RODIGUIZ v. STATE.
    No. 14148.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    D. L. Harry, of Jacksonville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of property over the value of $50; punishment being two years in the penitentiary.

It is made to appear that pending this appeal appellant has escaped from jail and has remained at large more than ten days. The ease is brought under the provisions of arti-' cle 824, C. C. P., which provides that an escape of accused from custody pending appeal ousts this court of jurisdiction.

The appeal is therefore dismissed.


text:
    J. C. SHIELDS v. STATE.
    No. 14130.
    Court of Criminal Appeals of Texas.
    April 8, 1931.
    Y. L. Shurtleff, of Breckenridge, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is the possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for one year.

The indictment is regular. The facts heard before the trial-court are not brought up for review. There are no complaints of the rulings of the trial court presented by bills of exception or otherwise. No fundamental error has been perceived.

The judgment is affirmed.


text:
    Wilson TEAGUE v. STATE.
    No. 14290.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    Will Hanock and John M. Hatter, both of Waxahachie, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

The conviction was for receiving stolen property; punishment, two years in the penitentiary.

Authentic information has reached this court that pending the appeal appellant was killed in an automobile accident.

The appeal is therefore abated.


text:
    Lee WEST v. STATE.
    No. 14061.
    Court of Criminal Appeals of Texas.
    March 25, 1931.
    Rehearing Denied April 29, 1931.
    Myres & Pressly, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The unlawful transportation of intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for one year.

The evidence is such as to disclose that the appellant and three other persons were riding in an automobile driven by appellant in which whisky was transported. A half gallon of whisky was seized by the officers, and the evidence showed that there were some bottles and jars which had been broken.

There are no bills of exception. The complaint of the charge of the court- upon the ground that there was error in charging on the law of principals is not deemed meritorious. From the evidence it appears that all four of the persons, in the car were acting together in the transportation of the whisky, in the endeavor to destroy the evidence and in the effort to escape. The appellant introduced no evidence.

We think there was no error in refusing to instruct the jury, as requested by the appellant, that, if he did not know that the car contained whisky, he should be acquitted. We fail to perceive any evidence that would acquire such a charge. The court charged on the law of circumstantial evidence, which was perhaps quite liberal to the appellant under the facts of the case.

Finding no error, the judgment is affirmed.


author: JACKSON, J.

text:
    W. T. CASWELL v. LLANO OIL CO. et al.
    No. 3268.
    Court of Civil Appeals of Texas. Amarillo.
    April 8, 1931.
    Bean & Klett, of Lubbock, for appellant.
    Lockhart, Garrard & Brown, of Lubbock, and J. I-I. Trickey, B. G. Mansell, and Bryan, Stone, Wade & Agerton,- all of Fort Worth, for appellees.
   JACKSON, J.

In an opinion reported in 36 S.W.(2d) 20S, in answer to certified questions, the Supreme Court settled the law against appellant’s contentions.

The judgment is therefore affirmed.


author: POPE, Justice.

text:
    G. B. HASTINGS et al., Appellants, v. John J. PICHINSON et al., Appellees.
    No. 14078.
    Court of Civil Appeals of Texas. San Antonio.
    May 29, 1963.
    Rehearing .Denied July 10,1963.

      J. Hubert Lee, Frank L. Scofield, Austin, for appellants.
    Ralph J. Graham, Corpus Christi, for ap-pellees.
   POPE, Justice.

Plaintiffs, John J. Pichinson and others, sued for and obtained a declaratory judgment that they own the gas under two leases. The question is whether the two leases have terminated as to gas, and if so whether they were revived. The jury answered all issues for the plaintiffs. We hold that' plaintiffs, as a matter of law, own one lease, but lost the other.

The first lease was executed on February 9, 1958, by G. B. Hastings and wife, and was for oil and gas under 188.74 acres of Frio County land. At the time of trial there was a gas well on that tract. We shall call it the Hastings lease. On the same date G. B. Hastings and wife, Bennie Cary and wife, and Ethel Mackey and husband, executed another oil and gas lease to 273.4 acres of land out of the same survey as the Hastings lease. We shall call it the Hastings-Cary lease. There is no well on it. The Mackeys owned a one-fourth life estate in the 273.4 acre tract, and plaintiffs concede that their rights to the Mackey interest have lapsed. That is not here involved. Both leases were to Tower Production Company, and plaintiffs, John J. Pichinson and the others, are the assignees of its rights. Both leases provided that the leases would lapse in one year if there was no oil production. Plaintiffs claim no oil rights. Both leases provided for shut-in gas royalties, but that such royalties would not continue a lease beyond January 9, 1960. Both leases had these provisions:

“2. Subject to the other provisions herein contained, this lease shall be for a term of one (1) year from this date (called “primary term”) and as long thereafter as oil, gas or other mineral is produced from said land hereunder. It is expressly understood by and between the parties hereto, and each does hereby agree and so stipulate, that this Lease may not be extended beyond January 9, 1960, by the payment of shut in gas royalty on a gas well where gas is not being sold or marketed from the above premises as provided in Paragraph 3(b) hereinbelow. It is further agreed and herein provided that notwithstanding that gas may have been theretofore discovered on the above described premises and may or may not have been marketed on said premises prior to February 8, 1959, this Lease shall never the less terminate as to oil on February 8, 1959, unless prior to such time said Lessee shall have drilled an oil well on said premises which said well is at such time actually producing or capable of producing oil in paying quantities. It is the purpose and intent of the parties to provide that production-of oil within the primary term of one (1) year shall continue this Lease in force and effect so long thereafter as oil is produced from said land, as provided hereinbefore, hut production of gas or discovery of gas in paying quantities may continue this Lease in force and effect after the end of said primary term of One (1) Year only as to gas.
“3. The royalties to be paid by Lessee are: (a) on oil, one-eighth of that produced and saved from said land, the same to be delivered at the wells or to the credit of Lessor into the pipe line to which the wells may he connected: Lessee may from time to time purchase any royalty oil in its possession, paying the market price therefor prevailing for the field where produced on the date of purchase; (b) on gas including casing-head gas or other gaseous substance, produced from said land and sold or used off the premises or in the manufacture of gasoline or other product therefrom, the market value at the well of one-eighth of the gas so sold or used, provided that on gas sold at the wells the royalty shall be one eighth of the amount realized from such sale. Where gas from a gas well is not sold or used, Lessee may pay as royalty $300.00 per well per year, provided, however, that said $300.00 per well per year equals the annual rental called for in Paragraph 4, and if such payment is made it will be considered that gas is being produced within the meaning of Paragraph 2 hereof and * *

The leases were later corrected to provide that the lessee may pay $300 per month per well as shut-in gas royalty. A gas well was discovered on the Hastings 188.74 acre tract in May, 1958, but there were no line connections available. As permitted by the lease, shut-in royalty payments commenced. The two leases were pooled with a third tract on September 18, 1958, according to the jury finding, but the Gas Unit Designation was not filed for record until July 6, 1960. On October 1, 1958, the well capable of production was capped. The primary term expired in February, 1959, at which time lessees’ rights as to oil terminated. The gas rights did not terminate at that time. On May 1, 1959, lessees made a contract with Coastal States Production Company under which it would commence the actual taking of gas on April 1, 1960, according to the jury finding. At that time it began taking gas. Shut-in royalty on gas was paid up to January 9, 1960. On March 16, 1960, lessees paid lessors what they called shut-in gas royalty and the lessors accepted it. This was tendered as payment for the February, 1960, shut-in gas. Lessees tendered another royalty check on May 28, 1960, for the March payment, but the lessors rej ected it upon the grounds that the leases had terminated. An undisputed and unat-tacked fact of profound signficance is that on April 26, 1960, Hastings and wife executed a lease for oil only to C. G. Holcombe and N. Mabry, covering the 188.74 acre tract only. In that lease Hastings and wife recognized the then validity of the gas lease by this provision:

“All rights to the gas will be turned over to the rightful owners or lessees of the gas rights on this tract or lease as set out in gas lease only, lessees being at this time the Tower Production Company, a Texas Corporation, which hold the lease rights on gas only at this time.”

On June 15, 1960, the Hastings and Carys contracted with Holcombe that he would institute a suit for the recovery of the mineral rights to both the 188 and 273 acre tracts of land, after which the Hastings and Carys agreed to convey the gas rights to Hol-combe. He is a party defendant in this suit.

Plaintiff lessees, in support of the judgment that they own the gas rights notwithstanding the provision which prohibited shut-in payments after January 9, 1960, rely upon these facts and findings: (1) Lessees tendered and lessors accepted shut-in royalty for February, 1960. (2) The jury found that between January 9, 1960 and April 1, 1960, when production actually began, that lessees with full knowledge of lessors made valuable improvements on the well, and that they did so because they were induced to believe that lessors, in accepting the shut-in gas royalty after January 9, 1960, had waived the lease provisions which forbade such payments after that date. (3) On April 26, 1960, after actual production began, lessors made an oil lease to Holcombe covering the 188.74 acre tract and the lease contained the provision stated above, which recognized the continued validity of the gas lease to Pichinson and others. In our opinion, the judgment upholding the lease is correct and must be affirmed upon principles of ratification or revivor with respect to the 188 acre Hastings tract. We shall state the controlling legal principles.

January 9, 1960, was the date beyond which there would be no shut-in royalty, according to the clear terms of the lease. If the lease continued thereafter, it must be by reason of actual production and there was none from that date to April 1, 1960. The lease therefore terminated. Freeman v. Magnolia Petroleum Co., 141 Tex. 274, 171 S.W.2d 339. The lessees seek to excuse themselves for the late payment of shut-in royalty, since they tendered the payment in March and the lessors accepted it. It is true that the lessors accepted the money tendered, but it was not shut-in royalty, for the contract declared against that. For us to write about shut-in royalty after January 9, 1960, we need to improvise a clause not found in the lease at all. It is one thing to excuse compliance, it is another to make a different contract for the parties. It is for this reason that we are not concerned with infrequent and special situations which excuse the force of limitation events. Hamilton v. Baker, 147 Tex. 240, 214 S.W.2d 460; Humble Oil & Refining Co. v. Harrison, 146 Tex. 216, 205 S.W.2d 355; Myers v. Crenshaw, Tex.Civ. App., 116 S.W.2d 1125, 134 Tex. 500, 137 S.W.2d 7; Mitchell v. Simms, Com.App., 63 S.W.2d 371; Buchanan v. Sinclair, 5 Cir., 218 F.2d 436 ; 26 Tex.L.Rev. 826. These cases have been criticized for confusing conditions subsequent with limitations. 21 Tex.L.Rev. 326, 329. The cases which do not excuse a tardy payment of shut-in royalty after the primary term are not applicable either. Gulf Oil Corporation v. Reid, 161 Tex. 51, 337 S.W.2d 267, 39 Tex.L.Rev. 519. In other words, the leases terminated on January 9, I960, and shut-in royalty was not authorized after that date.

In spite of these principles, however, the facts bring this case within the rules of ratification or revivor which support a part of the judgment. The principle has been applied to revive deeds which were wholly inoperative as to non-joining homestead owners. The subsequent execution of a formal document even to a third person which expressly recognized in clear language the validity of the lifeless deed or lease has been held to give it life. Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626; Grissom v. Anderson, 125 Tex. 26, 79 S.W.2d 619, 623. Defective description, even to the extent of its total omission, has been corrected and supplied by recitals in a subsequent lease which acknowledged the validity of a former deed. The Court, in Reserve Petroleum Co. v. Hodge, 147 Tex. 115, 213 S.W.2d 456, 79 A.L.R.2d 288, swept aside all other contentions and held that the thing and the only thing necessary to the decision of the case was the fact that there was a subsequent lease, as in Green and Grissom, supra, which clearly recognized the validity of the earlier defective deed. “For purposes of this opinion, this instrument will be treated as utterly void * * After making that positive statement, the Supreme Court, in Humble Oil & Refining Co. v. Clark, 126 Tex. 262, 87 S.W.2d 471, nevertheless held that a minor who, after becoming of age, executed a mineral deed to a third party and recited that the land described was then under an oil and gas lease and identified it, thereby restored the lease. The Court stated that even the fact that the lease in question had terminated for failure to pay delay rentals did not alter the conclusion about restoring the lease.

In Rainwater v. Mason, Tex.Civ.App., 283 S.W.2d 435, an oil and gas lease expressly prohibited certain pooling arrangements which nevertheless were made. Production was obtained on lands which should not have been pooled with lessor’s land. Lessor’s predecessor, however, had assigned the royalties under the pooled lease to his creditor and this constituted a ratification. Hence a prohibited pooling arrangement was ratified by a recognition contained in a document to a third party. Rainwater v. Mason, supra.

Our case is governed by the principles announced in these cases and in Loeffler v. King, 149 Tex. 626, 236 S.W.2d 772. In Loeffler a lessee claimed a waiver of a limitation event by acceptance of a small royalty check after the lease had lapsed, as well as the fact that he had made valuable improvements on the lease. The Court rejected the pleas of waiver and estoppel, and discounted the facts about the late acceptance of royalty payment and improvements. Those same contentions are made by the lessees in this case. The court recognized the difference between forfeitures and limitations and held, as we have, that the lease terminated, citing Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, and Freeman v. Magnolia Petroleum Co., 141 Tex. 274, 171 S.W.2d 339. In spite of the termination, the Court held the lease was revived. The thing which revived it was the fact that Loeffler later accepted a deed to a fractional royalty in which there was a recital which said: “It is distinctly understood and herein stipulated that said land is under an Oil and Gas lease providing for a royalty of ⅛ of the oil and certain royalties or rentals for gas and other minerals * *

From these cases, the rule of ratification or revivor is well established. Accord, Turner v. Hunt, 131 Tex. 492, 116 S.W.2d 688, 117 A.L.R. 1066; Tracy v. Lion Oil Company, Tex.Civ.App., 312 S.W.2d 562; Leopard v. Stanolind Oil & Gas Co., Tex. Civ.App., 220 S.W.2d 259; Van Deventer v. Gulf Production Co., Tex.Civ.App., 41 S.W.2d 1029; 3A Summers Oil and Gas, § 606.1; Ninth Annual Institute on Oil and Gas Law, 165; Note, 7 A.L.R.2d 294. At a time when there was actual production, Hastings and wife, by a clear and un-mistaken statement in a written formal document, acknowledged that Tower Production Company was the holder of “the lease rights on gas only at this time.” Hastings and wife, the complaining lessors, made the recognition statement in a lease to Hol-combe, to whom they gave the oil lease on April 26, 1960, and who claimed the gas rights at the trial. This case is stronger than some of those cited, since all claimants against Pichinson and others, the original lessees, participated in the ratifying recognition statement with respect to the Hastings tract.

We shall now apply these principles to the two leases. Hastings and his wife and Holcombe participated in the recognition statement in writing. They made it in the oil lease on April 26, 1960, covering the 188.74 acre Hastings tract. That was the tract on which the gas well was located. The recognition was with respect to the 188.74 acre Hastings tract only. With respect to that tract, the judgment for plaintiffs, Pichinson and others, is affirmed. There was no recognition of the validity of the Hastings-Cary lease which would revive it. It terminated on January 9, 1960, for non-production and non-payment of shut-in royalty in place of production, and it was never revived.

The judgment of the trial court is accordingly affirmed as to the Hastings lease. It is reversed and rendered that the Hastings-Cary lease reverted on January 9, 1960. Since the appellants partially prosecuted their appeal with success, the costs are divided equally.

On Motion for Rehearing.

Defendants’ motion for rehearing is grounded upon the point that plaintiffs did not invoke the theory of ratification or revivor. In our opinion plaintiffs, by pleading, proof and brief, have done enough to invoke it. By pleading, they said that the subsequent conduct of the parties gave meaning to an ambiguity in paragraph 2 of the leases, quoted in our opinion, with respect to the sale of gas. The pleading also asserted the specific words of the April 26, 1960 lease, wherein the defendants recognized the validity of the 1958 lease. They alleged that the 1960 lease was a recognition, that defendants made demands for shut-in royalty, and that plaintiffs paid the royalty, “thus clearly evidencing that they recognized said lease as being in full force and effect.”

At the trial the recognition oil lease from Hastings and wife to Holcombe and Mabry was introduced, while Hastings himself was on the stand. Plaintiffs asked him, “now, on the date of this oil lease here, Mr. Hastings, you were still taking the position that Tower Production Company or the assignees still owned the leasehold rights insofar as the gas on that property, is that correct?” To this he answered, “I sure did, I didn’t think it belonged to anybody else at that time, he hadn’t give it up or nothing.” The 1960 recognition lease was admitted without objection.

Plaintiffs’ brief points to the statement of facts and the exhibit of the 1960 lease and makes the argument, “in fact the evidence clearly established that such individuals considered such leases insofar as the gas rights thereunder were concerned were in full force and effect as late as April 28, 1960, when they entered into an Oil Lease to and with C. G. Holcombe on the same property wherein it was recited that the gas rights thereunder were owned by Tower Production Company.”

Most of the trial related to other issues, but when plaintiffs had proved enough, that was and is all that is required of them. The motion for rehearing is overruled.


author: BATEMAN, Justice.

text:
    DALLAS TRANSIT COMPANY, Appellant, v. E. D. YOUNG et al., Appellees.
    No. 16190.
    Court of Civil Appeals of Texas. Dallas.
    June 28, 1963.
    Rehearing Denied July 26,1963.

      John L. Hauer, Dallas, for appellant. ’
    Yarborough, Yarborough & Johnson, and Allison & Ford, Dallas, for appellees.
   BATEMAN, Justice.

This damage suit stems from a collision, or series of collisions, between four motor vehicles, all headed in a northerly direction on Second Avenue in the City of Dallas. The first car in the line was a Ford sedan owned and occupied by appellee Jesse Ford and his wife, which was stopped awaiting an opportunity to make a left turn. The second vehicle was a Chevrolet panel truck owned and operated by appel-lee E. D. Young, which had moved up behind the Ford and was either stopped or going very slowly. The next in line was appellant’s city bus operated by one Holt. The fourth vehicle was a Chevrolet pick-up truck owned and driven by Luther Rodgers.

Ford and Young sued Dallas Transit Company, Holt and Rodgers, claiming damages for bodily injuries. The jury found that the bus driver, Holt, failed to keep a proper lookout, which was a proximate and, in fact, the sole proximate cause of the collision. No other party was found guilty of negligence proximately causing the collision. Appellant and Holt moved for judgment non obstante veredicto, which motion was overruled, and the court rendered judgment on the verdict in favor of Young and Ford against appellant and Holt.

Appellant alone has appealed and presents only one point of error; viz., that the trial court erred in overruling its motion for judgment non obstante veredicto because (a) there was no evidence to support the improper lookout findings, and (b) appellees filed judicial admissions that Rodgers’ truck hit the bus from behind before the bus hit Young’s truck. We see no merit in this point and affirm the judgment.

Appellant’s burden here is to demonstrate that there was no evidence having probative force upon which the jury could have made the findings in question; and in determining whether that burden has been discharged we “may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings, and we must disregard all evidence which would lead to a contrary result.” Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 363; Lynch v. Ricketts, Tex.Civ.App., 306 S.W.2d 410, 413, reformed and affirmed 158 Tex. 487, 314 S.W.2d 273.

Holt testified that he did not know whether Young’s panel truck had completely stopped before the bus struck it, that he could have stopped the bus instantly, that there was nothing between him and Young’s truck to prevent him from seeing its movements, but that he did not know, or could not recall, whether Young “had his hand out from the time he first saw him stop up until there was a collision.” His testimony further indicated that the truck was about 200 feet ahead of him when he first observed it, that he knew that both his bus and the Young truck would have to stop because of the stopped Ford, and that the Young truck was only about ten feet ahead of him when the Rodgers vehicle struck the rear of the bus. There is no evidence that he observed the Young truck at any time in the interim. Young testified that he brought his truck to a complete stop behind the Ford and extended his arm outside his vehicle to indicate that he was stopping, that his stop light was on, and that he was in a stopped position three or four seconds before his vehicle was struck.

While this evidence may lack something in clearness and directness, yet we must hold that it is some evidence, more than a scintilla, sufficient to carry the issues to the jury and to support the findings thereon. The lookout maintained or neglected by a motorist is often very difficult to prove by direct evidence, and yet many cases turn, as this one does, on this single issue. Improper lookout, like any other negligent act or omission, may be proved by circumstantial evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 275. And it was held by the Fort Worth Court of Civil Appeals that “[t]he collision itself is some evidence of negligence on the part of the driver who strikes a preceding car from the rear.” Renshaw v. Countess, Tex. Civ.App., 289 S.W.2d 621, 624, no wr. hist. See also Caraway v. Behrendt, Tex.Civ. App., 224 S.W.2d 512, no wr. hist., and Miller v. Wagoner, 356 S.W.2d 363, no wr. hist.

On the other hand, appellant relies heavily on Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, 199, in which it was held that: “The occurrence of an accident, or a collision, is not of itself evidence of negligence.” This principle is firmly rooted and widely recognized. “But, while the naked fact that an accident has happened may be no evidence of negligence, yet the character of the accident and the circumstances in proof attending it may be such as to lead reasonably to the belief that, without negligence, it would not have occurred.” Washington v. Missouri, K & T Ry. Co., 90 Tex. 314, 38 S.W. 764, 765.

As said in Hoey v. Solt, Tex.Civ.App., 236 S.W.2d 244, 246: “It can not be gainsaid that one who fails to stop his automobile in response to a traffic signal, but propels the same into the rear end of an automobile which has stopped in obedience to the signal, is guilty of negligence proximately causing injury or damage unless such conduct is excused by some extenuating circumstance or condition.”

Appellant attempts to explain or excuse the collision of its bus with the rear of Young’s truck, not by saying that Young stopped suddenly or failed to signal his intention to stop, or that the brakes on the bus suddenly became ineffective without warning or fault on the part of appellant or its employee, but on the sole ground that Rodgers negligently hit the rear of the bus and pushed or knocked it into the rear of Young’s truck. This was apparently the only reed on which appellant could lean; and it turned out to be a weak one. Unless appellant could establish that its bus was pushed involuntarily into the vehicle ahead of it, the conduct of its driver stood rather defenseless. His testimony was quite definite that the bus was struck violently from the rear — violent enough to knock him loose from the steering wheel, and to cause him to lose his balance, his cap to fall off and his foot to come off the brake pedal — and that this force shoved the bus into the Young truck. He was corroborated in this, to some extent, by two passengers on the bus. There was testimony to the contrary, which, although weak, was more than a scintilla. Joske v. Irvine, 91 Tex. 574, 44 S.W.2d 1059. (See Footnote) The jury had a right to believe this testimony and reject that of Holt and the two passengers.

Obviously, that is exactly what happened, as evidenced by the jury’s answer to Special Issue No. 61, as follows:

“Do you find from a preponderance of the evidence that on the occasion in question the defendant, Luther Clifford Rodgers, in driving his vehicle into the rear of the bus proximately caused ■ it to collide with the car in front of it ?
“ANSWER: NO,”

The transcript does not reflect that appellant objected to the submission of that issue, or moved the court to disregard the finding; no complaint as to the submission of the issue or as to the finding was made in the amended motion for new trial, and no point of error is made in this court with respect thereto. Therefore, it seems to us that this jury finding, unchallenged in any manner, is binding on appellant and obliterates the only basis it could have for the only explanation it offers for the collision between the bus and the Young panel truck.

There is yet another basis for our conclusion that the jury findings on lookout have support in the evidence. Holt also testified that as he approached the scene of the accident he would occasionally “glance in the rear-view mirror to see if there was anything in behind” him, but that on this occasion he did not do so after he saw the cars in front of him. The jury may well have considered that as the bus approached the place where the two vehicles ahead of it were already stopped and the bus driver knew he would also have to stop, the exercise of ordinary care would have required him at that very time to look in his rear-view mirror to see if another vehicle might be following so closely behind him that it would be unable to stop and might push him and his bus into the cars in front. The evidence is undisputed that there was sufficient room to the right in which he could have turned the bus, thus avoiding the collision.

It has been held that ordinarily a motorist need not keep a lookout for vehicles approaching from his rear, but we think circumstances such as are presented here at least warrant the submission of the issue to the jury. As said in Jones v. Downey, Tex.Civ.App., 359 S.W.2d 116, 118, err. ref. n. r. e.: “However where a motorist is traveling upon a paved highway and is preparing stop, slow down or change directions, he is required to keep a lookout for traffic to his rear, and to give proper signals of his intentions.” See also Art. 6701d, § 68(c), V.A.T.S.; Art. 801 (K), Texas Penal Code; Le Sage v. Smith, Tex. Civ.App., 145 S.W.2d 308, 315; Scott v. McElroy, Tex.Civ.App., 361 S.W.2d 432, err. ref. n. r. e.; Langham v. Talbott, Tex. Civ.App., 211 S.W.2d 987, err. ref. n. r. e.

Therefore, we hold that the findings in question were not without some support in the evidence.

Appellant’s contention that Ford and Young filed judicial admissions that Rodgers’ pick-up truck hit the bus from behind before the bus hit Young’s truck will now be noticed. Ford pled that he stopped his car, that Young stopped behind him, and that the bus struck Young’s truck with such force as to knock it forward into Ford’s car; and, in the alternative, that the bus driver failed to apply his brakes but allowed the bus to crash into the rear of Young’s truck, etc. He then added, in the same sentence: “that, in any event there was immediately behind said bus, at the time and on the occasion in question, a Chevrolet pick-up truck driven by the- said Luther Rodgers, who was also proceeding in a Northwesterly direction on said Second Avenue * • * * and, said Luther Rodgers, at about the same time the bus crashed into the rear of the Chevrolet truck driven by Elisha David Young, at the time and on the occasion in question, crashed into the rear of said bus, giving added impetus to said bus and it crashed into the rear of said truck driven by Elisha David Young, etc.”

In Young’s petition, after alleging that the bus crashed into the back of Young’s truck, it was alleged: “that almost instantaneously prior thereto, the back of said Dallas Transit Company bus had been struck from the rear by a vehicle owned and operated by defendant Luther Clifford Rodgers.”

This contention is overruled for four reasons:

1) The pleadings in question do not, in our opinion, constitute the judicial admissions claimed for them by appellant. Ford’s pleading was in the alternative, and the alternative plea cannot be used as a judicial admission opposed to his first or main plea. Climatic Air. Distributors of South Texas v. Climatic Air Sales, 162 Tex. 237, 345 S.W.2d 702; Rule 48, Vernon’s Texas Rules of Civil Procedure. Furthermore, it does not actually allege that the pick-up hit the bus first and caused it to strike Young’s truck, merely that it gave “added impetus.” Young’s pleading, quoted above, likewise falls far short of admitting that Rodgers’ truck hit the bus first in such manner as to cause the collision between the bus and Young’s truck. As said in Restelle v. Williford, Tex.Civ. App., 364 S.W.2d 444, 445, err. ref. n. r. e.: “We doubt that the allegations were made with such clarity that they, strictly construed, may be considered a judicial admission.”

2) Appellant did not contend in the trial court that these pleadings were such admissions as to obviate the necessity of evidence on the point. On the contrary, it treated the matter as a disputed issue by introducing evidence thereon. The point was thereby waived. 31 C.J.S. Evidence § 381c, p. 1172;’ 7 C.J.S. Pleading’§ 161, p. 335; Restelle v. Williford, 364 S.W.2d 444, 446, err. ref. n. r. e.

3) It was not mentioned in the motion for judgment non obstante veredictor and since the only point of error on appeal relates to the overruling of that motion, the contention cannot properly be considered here for the first time.

4) Haying -no direct bearing on the proper lookout issues, the matter of which vehicle struck which vehicle first is at most evidentiary and not in any sense determina-; tive of the appeal. As indicated above, this case turns on whether there was any evidence to support jury findings on lookout, not on a determination of the order in which the vehicles collided with each other. Our inquiry is limited to the question i Does the record contain any evidence to support the finding of improper lookout? Having demonstrated that it does, the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING

In its motion for rehearing appellant directs our attention to the fact that we did not express our views on its contention that the appellees are bound by the only direct evidence on lookout, which was that of its driver Holt, who testified that the truck struck the bus knocking him away from the controls and knocking the bus into the panel truck. Appellant says this testimony is so binding on appellees as to require us to reverse and render the judgment, even though Holt was a defendant and interested witness. It relies on Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908, wherein it is held that “where the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon, it is taken as true, as a matter of law.”

In view of the corroboration of Holt’s testimony by that of the two bus passengers, appellant also says that this case is governed by Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 136 S.W.2d 207.

We have again reviewed the evidence and adhere to our original opinion that the finding of failure to keep a proper lookout is not without at least some evidence to support it. If we are correct in that, it is our duty to “disregard all evidence which would lead to a contrary result.” Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359. This would of course include the testimony of Holt and his passengers. The motion for rehearing is overruled.

      . Luther Rodgers testified that shortly before he struck the rear of the bus he heard a fairly loud crash which sounded like an automobile accident; that he looked ahead of him on each side to see if he could see an accident, but did not see one; that he did not say he heard the crash in front of the bus although it appeared to be up in front of him; that he couldn’t tell whether it was on the side or straight ahead, but out in front of him some place; that he was 150 or 200 feet behind the bus when he heard it, traveling about 45 miles per hour, at which time he took his foot off the accelerator; that he saw the brake light on the bus “flicker” when he was about 60 to 90 feet behind the bus and then for the first time applied his own brakes, reducing his speed to about 25 to 35 miles per hour when he hit the bus; that he does not know whether the bus ran into a vehicle in front of it before he hit the bus. In his deposition Rodgers said that he was about 60 feet from the bus traveling 15 or 20 miles per hour, when he first applied his brakes and' skidded about 60 feet into the bus; that when he was approaching the bus he heard a crash and that’s when he slowed down; that the noise sounded like it was in the immediate area.
      I-lis wife, Mrs. Katie Rodgers, testified that she was riding with her husband and that as they approached the scene she heard a “bang” which sounded like “two people running together” and sounded like it was in front of her; that after their pick-up struck the bus she did not see it move forward and to the best of her knowledge it did not; that after the pick-up struck the bus she did not' hear-tlie bus then strike something in front of it; that the noise she heard before the piek-up struck the bus was like colliding vehicles would make; that she would say, based on this noise, that the bus bit the vehicle in front of it before she and her husband hit the bus, although she could-n’t see around in front of the bus.


author: FANNING, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Merritt MILLER, Appellee.
    No. 7451.
    Court of Civil Appeals of Texas. Texarkana.
    June 11, 1963.
    Rehearing Denied July 23,1963.
    Herbert Boyland, Kenley, Ritter & Boy-land, Longview, for appellant.

      Ruff Wall, Fred Whitaker, Carthage, L. W. Anderson, Harris, Anderson, Henley & Rhodes, Dallas, for appellee.
   FANNING, Justice.

This is a workmen’s compensation insurance case. The judgment of the trial court is affirmed.

Merritt Miller, alleging he was a Texas employee of W. T. Pipes, working temporarily in Louisiana, sued Texas Employers Insurance Association, the Texas carrier of Pipes’ workmen’s compensation insurance, alleging he received accidental personal injuries in Louisiana during the course of his employment with his employer, and sought compensation benefits under the extra-territorial provisions of Art. 8306, Sec. 19, Vernon’s Ann.Civ.St. Trial was to a jury, and the trial court thereafter granted plaintiff’s motion to disregard the answers to certain issues and entered a judgment for plaintiff based upon the answers of the jury to the remaining special issues. The judgment was a monetary judgment for total and permanent disability, with however the court crediting the judgment with the sum of $2520.00, which represented weekly compensation benefits paid to appellee Miller by Argonaut Insurance Company, the Louisiana carrier of Pipes’ workmen’s compensation insurance. Texas Employers Insurance Association has appealed.

Appellant by its 1st and 2nd points contends to the effect that (1) “The undisputed evidence established”, and (2) “The evidence failed to establish” as a matter of law, that at the time of his injury, plaintiff was covered under the extra-territorial provisions of the Workmen’s Compensation Act of the State of Texas. By its 3rd point appellant contends that the evidence was insufficient to establish that plaintiff at the time of his injury was covered under the extra-territorial provisions of such Act. By its 4th point appellant contends that the trial court erred in failing to submit issues to the jury inquiring if plaintiff was hired in the State of Texas to perform work in the State of Texas and temporarily sent out of the State. By its 5th point appellant contends that the trial court erred in failing to submit issues to the jury inquiring if the work in which plaintiff was engaged at the time of his injury in Louisiana was work which he had been hired to do in the State of Texas prior to having been sent out of the State.

Art. 8306, Sec. 19, V.A.C.S., reads in part as follows:

“If an employee, who has been hired in this State, sustain injury in the course of his employment he shall be entitled to compensation according to the Law of this State even though such injury was received outside of the State, * * *.
“Providing that such injury shall have occurred within one year from the date such injured employee leaves this State; and provided, further, that no recovery can be had by the injured employee hereunder in the event he has elected to pursue his remedy and recovers in the state where such injury occurred.”

Plaintiff testified that he had been working for Pipes,' his employer, for approximately two years prior to the accident, and that he was hired by his employer in Panola County, Texas. Mr. Pipes, the employer, also testified to the above facts. It is thus undisputed that plaintiff was originally hired in Texas and worked for his employer about two years prior to the accident.

It is also undisputed that plaintiff was injured in the State of Louisiana, within less than one year from the date plaintiff left the State of Texas. In this respect plaintiff testified that he had been working in Louisiana about two weeks before his injury, and before that time had been working in Texas. Mr. Pipes, the employer, also testified to the effect that plaintiff had been working in Louisiana approximately two or three weeks prior to the injury and before that time had been working in Texas.

As we understand appellant’s contentions, it among other things, contends to the effect that plaintiff was hired in Texas as a mechanic and hired in Louisiana as a woods foreman, and was therefore hired in Texas to do one job and hired in Louisiana to do another job, and therefore plaintiff could not recover under the extra-territorial provisions of the Texas Workmen’s Compensation Act. It is our view that this contention is not well taken under material undisputed evidence in the record. Mr. Pipes, the employer, was engaged in the pulpwood business and as such, bought various tracts of timber which were cut and hauled to a mill, and that these tracts of timber would be located both in Panola County, Texas, and in Louisiana. The testimony further showed that although plaintiff had been working for Pipes for a period of approximately two years, and had originally been hired as a mechanic, plaintiff for approximately six months prior to his injury had been doing work for his employer both as a mechanic and as a woods foreman, and that plaintiff’s work called for him to go to Louisiana sometimes as much as two or three times a week. It seems apparent that plaintiff’s work as a woods foreman was not on a regular basis, as the work there done was where the wood was being cut, whether it was in Texas or in Louisiana, and that plaintiff mainly worked as a mechanic. In fact plaintiff, having been hired originally as a mechanic, later did both mechanic work and work as a woods foreman, and at the time of his injury in Louisiana was peforming work both as a mechanic and woods foreman. We quote from plaintiff’s testimony in this respect as follows:

“Q. How come you to be over in Louisiana?
“A. I went down there to fix one of his trucks.
“Q. Was the truck broke down or something ?
“A. Yes.
* *' * * * *
“Q. And how long before you got hurt was it?
“A. About 2 days I guess it was.
“Q. Two days before? Same deal, truck broke down?
“A. No, axle broke in a different truck.
“Q. Sir?
“A. Axle broke in another truck.
* * ’ * * * *
“Q. Tell me how you got hurt now please sir?
“A. Well, I was out there in the woods and got the truck fixed and was messing around helping the boys out there and there was this tree lodged. Lodged early that morning and I started to cut the tree it was lodged on and had it down where they could get by with the truck and I cut, oh, I’d say maybe 2 inches or 3 and it broke. Split and I don’t know what happened then. Happened so fast I don’t know.”

The extra-territorial provision of the Texas Workmen’s Compensation Act is mainly to protect Texas employees temporarily out of the State of Texas, whose employment takes them periodically out of the State. It is also well established that the Workmen’s Compensation Act' should be liberally construed in order to effectuate the beneficent purposes for which it was enacted. See Traders & General Insurance Company v. Collins, Tex.Civ.App., 321 S. W.2d 178, wr. ref., n. r. e., and authorities therein cited.

In Traders & General Insurance Company v. Collins, supra, the facts are somewhat similar in that the deceased employee' there spent approximately 75% of his time working in Texas and the other 25% working outside of the State, and as a traveling salesman he would go back and forth to various portions of Texas and Oklahoma, and into parts of Kansas and New Mexico. The court held that even though the deceased employee made his residence in Tulsa, Oklahoma, nevertheless he was hired in Texas, was a Texas employee, and although killed in Oklahoma, under the facts in said case, benefits were recoverable under the Workmen’s Compensation Act of Texas.

Under the material undisputed evidence in the cause we hold that the trial court was correct in holding as a matter of law that the plaintiff was entitled to recover under the extra-territorial provisions of the Workmen’s Compensation Act of Texas. See the following authorities: Texas Employers’ Ins. Ass’n v. Volek, Tex.Com.App., 69 S.W.2d 33, certiorari denied 293 U.S. 598, 55 S.Ct. 116, 79 L.Ed. 691; Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955; Texas Employers’ Ins. Ass’n v. Robertson, Tex.Civ. App., 137 S.W.2d 836, err. dism., judg. cor.; Employers Mutual Liability Ins. Co. of Wisconsin v. Evins, Tex.Civ.App., 211 S.W. 2d 359, wr. ref.; Traders & General Ins. Co. v. Collins, Tex.Civ.App., 321 S.W.2d 178, wr. ref., n. r. e. Appellant’s points 1 through 5, inc., are overruled.

By its 6th, 7th and 8th points appellant contends to the effect that the trial court erred in ignoring the findings of the jury that plaintiff had received workmen’s compensation benefits in Louisiana, and had' elected to pursue his remedy in Louisiana, and in entering judgment for plaintiff notwithstanding such findings, and in holding as a matter of law that plaintiff had not made an election to pursue his remedy for workmen’s compensation benefits in Louisiana.

The record shows that appellee Miller was injured in Louisiana on October 27, 1958; on Nov. 24, 1958, Miller filed notice of injury and claim with the Industrial Accident Board of Texas, listing the insurance carrier as Boucher & Slack Insurance Service, Springhill, Louisiana, his amended notice and claim of May 4, 1960, listed the insurance carrier as Argonaut Insurance Company, Dallas, Texas. Later after Miller employed an attorney he amended his claim to show Texas Employers Insurance Association as the insurance carrier.

In December, 1958, Argonaut Insurance Company voluntarily commenced the payment of weekly workmen’s compensation benefits to Miller, and thereafter paid to him the total sum of $2520.00, and in addition thereto furnished certain medical benefits to Miller by paying certain doctor’s bills. On Jan. 23, 1959, an agent or adjuster of Texas Employers Insurance Association, who did not testify in the case, secured a written statement from appellee Miller found below, for which statement Miller was not paid any consideration by Texas Employers, and which statement was filed with the Industrial Accident Board of Texas by appellant insurance company. Appellee Miller testified to the effect that he signed the statement without knowing the contents of same, without reading same, along with some other papers, not knowing the purpose or meaning of the statement, without knowing anything about electing to come under Louisiana law, and to collect against Argonaut Insurance Company, that he only had a fourth grade education and did not understand defendant’s exhibit 4 (the statement), that he never knew two insurance companies were involved until he was advised later by his attorney, and was not represented by an attorney when appellant’s adjuster secured such statement. The adjusters of Argonaut also admitted that they never explained in any manner to Miller the question of election under the State of Louisiana or Texas. The testimony of plaintiff Miller in this respect was not disputed by the agent or adjuster of appellant, as said agent or adjuster never testified in the cause. The statement taken by the adjuster from Miller also contains the following phrase: “if I have a choice”.

Appellee in his brief after discussing the evidence with respect to the question of election states as follows: “From the reading of the above evidence, it is apparent that the plaintiff with a fourth grade education and not being represented by an attorney doesn’t even know the meaning of the word ‘election’, and could not in any way be bound by the legal conclusions made in such statement, which was without consideration in any way by Texas Employers’ Insurance Association.” Appellee in his brief takes the position (1) that plaintiff did not make an election and (2) if he did make an election it was not so binding upon him so as to prevent him from recovering under the extra-territorial provisions of the Texas Act. In connection with the ap-pellee’s argument (2) supra, appellee takes the position that the compensation' payments made by Argonaut to Miller were voluntary payments and not compelled by any court action in Louisiana, and that Louisiana does not have any administrative agency to handle workmen’s compensation claims, but in Louisiana such claims are decided in court, and that there was no final adjudication or final settlement of appel-lee’s claim against Argonaut in the State of Louisiana under Louisiana law. There-is no evidence in the record that appellee ever secured a final adjudication in court of any claim in Louisiana (or even filed a suit in Louisiana), or that he ever made any final settlement with Argonaut in any manner. In fact the evidence is to the contrary.

The doctrine of election of remedies is not a favorite of equity, and it has-been said “[I]t is a harsh, and now largely obsolete rule, the scope of which should not be extended.” Lance v. City of Mission,. Tex.Civ.App., 273 S.W.2d 950, wr. ref., n. r.e.; Slay v. Burnett Trust Company, 143-Tex. 621, 187 S.W.2d 377; Bandy v. Cates,. 44 Tex.Civ.App. 38, 97 S.W. 710, er. ref.;. Poe v. Continental Oil & Cotton Co., Tex.Com.App., 39 S.W.2d 599, 77 A.L.R. 1466..

In Lance v. City of Mission, supra, (273* S.W.2d 950) it was stated in part as follows:

“Defendants have not suffered any detriment as a result of the institution of the two suits by plaintiff, nor has plaintiff benefited at the expense of. defendants. * * *
“We * * * conclude that appellant is not estopped to have a trial of his present case by the filing of the Spikes suit on which no trial was had and which was dismissed prior to ihe entry of the judgment complained of.”

Full discussions of the law pertaining to-election of remedies and rights thereunder are contained in the above referred to cases,, and no useful purpose could be served in restating same.

Among the cases cited by appellee in support of his argument (1) supra, that under the material undisputed facts in this cause plaintiff did not elect to proceed under the Louisiana Law are the following: Leonard v. Hare, 161 Tex. 28, 336 S.W.2d 619; Carter v. Ferris, Tex.Civ.App., 337 S.W.2d 852, wr. ref., n. r. e.; Calbeck v. Travelers Insurance Company, 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368; Standard Accident Insurance Company v. Skidmore, Tex.Civ.App., 222 S.W.2d 344, wr. ref.; Norwich Union Indemnity Co. v. Wilson, Tex.Civ.App., 43 S.W.2d 473; Texas Employers’ Ins. Ass’n v. Hale, Tex.Civ.App., 242 S.W.2d 796. Also in this connection see Associated Indemnity Corporation v. Scott (5th Circuit), 103 F.2d 203, which held that under the facts in that case the receiving of certain weekly compensation payments under the Louisiana law did not constitute an election which prevented a plaintiff from recovering under the extra-territorial benefits of the Workmen’s Compensation Act of Texas; this case was cited with approval in the Skidmore case, supra (222 S.W.2d 344) and the Supreme Court of Texas refused outright an application for writ of error in the Skidmore case.

Among the cases cited by appellee in support of his argument (2), supra, that since there was no final adjudication made of plaintiff’s claim under Louisiana law, and no final settlement of his claim was made with Argonaut under the laws of Louisiana that no binding election (if any) was made by appellee which would prevent him from recovering under the extra-territorial benefits of the Workmen’s Compensation Law of the State of Texas, are the following : Arrow Drilling Company v. Brooks, (5th Circuit), 303 F.2d 590; Industrial Commission v. McCartain, 330 U. S. 622, 627-630, 67 S.Ct. 886, 91 L.Ed. 1140; Tucker v. Texas Company (5th Circuit) 203 F.2d 918 (a case dealing with a Texas employee temporarily working in Louisiana); Associated Indemnity Company v. Scott, supra, (103 F.2d 203).

Language relied upon by appellee in the case of Travelers Insurance Company v. Cason, 132 Tex. 393, 124 S.W.2d 321, wherein the court discusses the James case, James v. Texas Employers Ins. Ass’n, Tex.Civ.App., 98 S.W.2d 425; 131 Tex. 605, 118 S.W.2d 293, is clearly distinguishable from the case at bar by the following language in the court’s opinion:

“We think it is proper for us to here state that in our opinion we entered a correct judgment in the James case, because, under the undisputed facts of that case, James elected to claim compensation under the compensation laws of Pennsylvania, and settled in full with the Pennsylvania compensation insurance carrier under, and in compliance with, the laws of that State.” (Emphasis added)

It thus appears that under the James case that James elected to claim compensation under the laws of Pennsylvania and settled in full in compliance with the laws of Pennsylvania. In the case at bar Miller did not settle in full with Argonaut, filed no suit in Louisiana, and there was no final adjudication or final settlement of appellee’s claim in Louisiana. Also the $2520.00 weekly installments paid Miller voluntarily by Argonaut were deducted from the judgment that appellee secured against Texas Employers. The $2520.00 paid by Argonaut to Miller was in no wise a detriment to Texas Employers, but benefited Texas Employers to the extent of $2520.00, which was deducted from the judgment. Furthermore, Texas Employers paid no consideration to Miller for the execution of the “election” statement it secured from Miller, (which election statement contained certain legal conclusions) and no benefits whatever were paid by Texas Employers to Miller on his claim.

After carefully considering the matter it is our best judgment that under the record in this cause no binding election (if any) was made by appellee which would prevent him from recovering under the extra-territorial benefits of the Workmen’s Compensation Law of the State of Texas. Appellant’s 6th, 7th and 8th points with respect to questions relating to “election” are overruled.

Appellant’s remaining points are respectfully overruled.

The judgment of the trial court is affirmed.

      . “My name is Merritt Miller, age 49 male, married, and of the white race. My address is Route 1, DeBerry, Texas. On October 27, 1958, I was working for W. T. Pipes when a tree fell on me, injuring my back. I was working about 8 miles east of Bogansport, Louisiana, in DeSoto Parish, Louisiana. I am being paid Workmen’s Compensation Benefits under the Louisiana Law at the present time. I have elected to come under the Louisiana Law, if I have a choice. I am not making a claim for Workmen’s Compensation in Texas. The Notice of Injury and Claim for Compensation dated November 24, 1958, and sent to the Industrial Accident Board of the State of Texas was sent in error. I am making claim for Louisiana Workmen’s Compensation benefits and am receiving compensation benefits under the Louisiana Law; but I am not making claim under the Texas Workmen’s Compensation Act for injuries received on October 27, 1958. “/a/ I have read the above and it is true.
      “I have read the above and it is true.
      “/s/ Merritt Miller “Merritt Miller
      “/s/ Lillie Miller “Witness”


author: TIREY, Justice.

text:
    Helen W. BELL et al., Appellants, v. Myrle O. BURTON et al., Appellees.
    No. 4129.
    Court of Civil Appeals of Texas. Waco.
    June 6, 1963.
    Rehearing Denied Aug. 1,1963.
    Fountain, Cox & Gaines, Houston, for appellants.

      Baker, Botts, Shepherd & Coates, Robert J. Piro, Houston, for appellees.
   TIREY, Justice.

Roy W. Bell, Jr., and his sister, children of their father’s first marriage, sued Mrs. Bell, second wife and widow of Roy W. Bell, Sr., and the Helena Motel, Inc., for reimbursement because of alleged expenditures of community funds. This action (non-jury) was consolidated with an appeal by the Bell children and Mrs. Burton and Mrs. Windle, sisters of Bell, from an order of the Probate Court of Harris County denying the probate of Bell’s will executed in 1948, and admitting to probate as the will of Bell an instrument written wholly in his handwriting. Mrs. Bell, the widow, counter-claimed in the first action seeking, among other relief, the enforcement of a written agreement between Bell and herself. The Court awarded plaintiffs $21,124.50 and held that Bell died intestate and that Mrs. Bell, the widow, had a one-half interest in property designated as the Bell Apartments. The Court decreed that plaintiffs recover from the defendants the escrow fund less $20,384.18 with interest paid thereon with the escrow depository, which sum of $20,384.18 was awarded to Mrs. Bell.

On January 1, 1955, Bell, age 56, intermarried with Helen W. Twilligear, age 55, which marriage ended with Bell’s accidental death April 24, 1958. Mrs. Twilligear owned the following property at the time of the marriage:

(1) A Houston motel business (Helena Motel) including improved real estate, personalty, cash and good will; (a) an originally separate interest, (b) in a part, her Twilli-gear community interest, (c) life estate in the Lum Twilligear, Sr., community interest under his will, and (d) undistributed profits.
(2) Her home, called ElLago, on Clear Lake, her title being (a) her Twil-ligear community interest, (b) life estate in the Lum Twilligear, Sr., half by his will, and (c) Legal homestead right.
(3)Other property, including securities and cash.
Bell owned the following property:
(1)vA house and lot (hereinafter referred to as the Pasadena property) .
(2) A small amount of cash.

At the time of marriage Bell worked for Reed Roller Bit Company earning a yearly salary of less than $8,000.00, and Mrs. Twilligear’s (Bell) motel income was considerably larger.

The case in the Probate Court began with an application by Mrs. Burton for the probate of the will of Bell, being designated as the 1948 will, and for letters testamentary. Mrs. Bell contested the probate and granting of letters on the ground that the will had been revoked by a later holographic will which she sought to probate. The Probate Court held for Mrs. Bell on all points, and Mrs. Burton, joined by the other plaintiffs, perfected her appeal to the District Court of Harris County. The District Court refused to probate the holographic instrument on the ground that it was not executed with testamentary intent, but held that the holographic instrument was effective as a revocation of the 1948 will, and refused probate of the 1948 will and held that Bell died intestate. Both plaintiffs and defendants excepted to the Court’s holding on the foregoing matter and Mrs. Bell and her co-defendant perfected an appeal to the Houston court.

In the judgment we find the following recitals:

“(1) That the evidence does not show that the decedent, Roy W. Bell, Sr., made any gifts to defendant, Helen W. Bell, during the time of their marriage;
“(2) That neither prenuptial agreement between the decedent, Roy W. Bell, Sr., and defendant Helen W. Bell, nor the subsequent acts of the parties including repeated expressed desire of Roy W. Bell, Sr., that he would take none of the income from Mrs. Bell’s separate property, and that Mrs. Bell alone was the proprietor of such income, the instructions he gave to effectuate such desire, nor any other aspect or any combination of aspects of such subsequent acts of the parties, was effective to convert the community income from Mrs. Bell’s separate property into the separate property of said defendant;
“(3) The defendant, Helen W. Bell, made a will which was unrevoked prior to Roy W. Bell, Sr’s., death which accorded Roy W. Bell, Sr., substantially greater benefits than the will which Helen W. Bell agreed in the prenuptial agreement to make;
“(4) That the decedent, Roy W. Bell, Sr., died without having executed a valid will;
“(5) That the prenuptial agreement was not enforceable as a contract to make wills;
“(6) That the interest of the defendant, Helen W. Bell, in the Lake House and in the Helena Motel was, during her marriage to Roy W. Bell, Sr., the separate property of defendant, Helen W. Bell;
“(7) That the Pasadena real property upon which the Bell Apartments were built was the separate property of the deceased, Roy W. Bell, Sr.;
“(8) That permanent improvements with a cost of $85,000.00 were made on the Motel during the marriage of Roy W. Bell, Sr., and the defendant, Helen W. Bell;
“(9) That permanent improvements with a cost of $14,769.00 were made on Lake House during the marriage of Roy W. Bell, Sr., and the defendant, Helen W. Bell;
“(10) The books of Helena Motel were kept according to standard accounting principles and by methods accepted by Roy W. Bell, Sr., during his lifetime as evidenced by his signature of joint income tax returns;
“(11) There was withdrawn and expended from the Motel by defendant, Helen W. Bell, during her marriage to Roy W. Bell, Sr., cash in excess of the net income (as reflected by the Motel books) of said Motel for the period of such marriage.
“(12) That that portion of the Motel’s gross receipts allocated to tax depreciation attributable to improvements in existence at the time of the marriage is a return of capital and improvements made therewith do not give rise to a community claim of reimbursement ;
“(13) That that portion of the Motel’s gross receipts allocated to tax depreciation attributable to improvements made after marriage is community property and improvements made therewith give rise to a community claim of reimbursement;
“(14) That that portion of the Motel’s gross receipts allocated to depreciation on the Motel taken on defendant’s, Helen W. Bell’s tax returns for the years in question was $77,600.00. Of this sum 32% was attributable to depreciation for improvements made during the marriage and 68% for improvements in existence at the time of the marriage;
"(15) That the sources of funds used to improve the Motel were:
(a) $21,000.00 in defendant’s Helen W. Bell’s separate property;
(b) $30,000.00 in borrowed money, which was paid back from that portion of the gross receipts of the Motel earned during the marriage and allocated to tax depreciation, 32%' of which is considered community property ($9,600.00) and 68%' of which is considered separate property ($20,400.00);
(c) $34,000.00 from that portion of the gross receipts of the Motel earned during the marriage and allocated to tax depreciation, 32%' of which is considered community property ($10,880.00) and 68%' of which is considered separate property ($23,120.00).
“(16) That on this basis, the community contributed $20,480.00 to the cost of the improvements on the Motel;
“(17) That the funds used to improve the Lake House were community funds;
“(18) That the enhanced value of the Motel as of the dissolution of the marriage as a result of these improvements was at least $85,000.-00;
“(19) That the enhanced value of the Lake House as of the dissolution of the marriage as a result of these improvements was at least $14,769.00;
“(20) That the community is therefore entitled to reimbursement in the amount of $17,624.50 (one-half of $20,480.00 and one-half of $14,769.00) being one-half of the cost of the improvements paid for with community funds.
“(21) That the holographic instrument prepared by Roy W. Bell, Sr., did not affect the legal title to the Bell Apartments but the intent of Roy W. Bell, Sr., evidenced therein, together with the prior and contemporaneous conduct of said Roy W. Bell, Sr., and said Helen W. Bell was effective to convey an equitable interest in the said Bell Apartments to defendant, Helen W. Bell, which, as of the dissolution of the marriage, was equal to one-half (½) of the value of said Bell Apartments at that time;
“(22) That defendant, Helen W. Bell, is, therefore, entitled to that portion of the escrow fund together with the interest paid thereon by the escrow depository representing one-half of the net proceeds from the sale of the Bell Apartments, which one-half is $20,-384.18, and plaintiffs, Roy W. Bell, Jr., and Mary Bell Boet-tcher, are entitled to the remainder;
“(23) That the 1948 will of Roy W. Bell, Sr., was duly executed with all the formalities rc juired by law to make it a valid will;
“(24) That the holographic instrument written by Roy W. Bell, Sr., was not executed with testamentary intent and thus was not a valid will;
“(25) That the holographic instrument written by Roy W. Bell, Sr., was, however, adequate as a revocation of the 1948 will;
“(26) That Roy W. Bell, Sr., therefore, died intestate.
“(27) The net distributable estate consists of $9,000.00 in cash, $2,000.-00 of which is payable to Myrle O. Burton by stipulation of the parties and the remainder of which is to go 50%' to Roy W. Bell, Jr., and Mary Boettcher and’ 50% to Helen W. Bell. The separate real estate of the decedent has been equitably partitioned above.”

The Court decreed that Roy W. Bell, Jr., and his sister Mary Bell Boettcher, recover from the defendants the escrow fund less $20,384.18, and further decreed that they recover from Mrs. Bell, the widow, $21,-124.50 with legal interest from April 24, 1958 until payment to plaintiffs and taxed all costs against Mrs. Bell.

The judgment recites that all of the plaintiffs and all of the defendants objected in part and gave in open court their notices of appeal.

Appellants’ Points 10 and 11 are to the effect that the Court erred in its failure to hold that plaintiffs were estopped to assert any claim arising out of the expenditures by Mrs. Bell from her estate during her marriage with Bell and .that equity sustains such view. We are in accord with this view. It is without dispute that prior to the marriage Bell’s holdings were small, and he had a salary of less than $8,000.00 per year; that Mrs. Bell’s holdings were greater and her income much greater than Bell’s; that prior to the marriage she had carried her personal account and the income from the Motel in separate accounts in a Houston bank, and continued to do so after the marriage; that Bell had his accounts in banks in Pasadena and in Bay City; that Bell and Mrs. Twilligear, while they were contemplating marriage, each having a separate estate, and each having adult children by a prior marriage, were interested in protecting not only themselves but their respective children with reference to their respective estates and income in the consummation of their marriage. In their efforts to do so they sought the advice of the lawyer who had represented Mrs. Twilligear and her family for some years and, under his advice, they executed a prenuptial agreement; that while this agreement has no standing in law, at the same time, it points up exactly what each of the parties had in mind and what they intended to accomplish and, after their marriage, the parties proceeded to have Mrs. Bell declared a feme sole for trading purposes and thereafter Mrs. Bell’s income from her estate was kept separate from that of her husband and, likewise, her husband’s income was kept separate from hers, and there was never any commingling of the incomes of the parties. Evidence was tendered to the effect that Bell directed the accountant to keep these accounts separately and it was done-under his direction, and with his consent; that Mrs. Bell had the sole right to draw the checks on her personal account, as well as the Motel (Mrs. Bell owned the majority of the stock in the corporation but her exact interest is not shown) and use the same. Bell refused to exercise any control over any of these funds and at the same time insisted that Mrs. Bell have complete control and dominion over both. The only exception being that Bell was finally persuaded to execute and accept a signature card on the personal account of Mrs. Bell, which card was signed: “Helen W. Bell, by Roy W. Bell.” This privilege was never exercised by Bell. Our view of this entire record is to the effect that all of Bell’s conduct prior to the marriage and subsequent to the marriage, is to the effect that he intended that the income received1 by Mrs. Bell from her separate estate would be her separate property, and because he permitted her to collect the revenues and deposit them to her account and exercise exclusive control and dominion thereof with his knowledge, consent and approval created an estoppel against him and precluded him and those claiming under him from claiming his community interest therein, and we think that reasonable minds cannot differ thereon.

Testimony was tendered to the effect that with reference to the money used in the construction of the Bell Apartments, that he accepted the money advanced by Mrs. Bell upon the agreement to receive Mrs. Bell’s separate money in exchange for an interest in the apartments; that Mrs. Bell determined that in order to provide income for Bell’s retirement the Pasadena property should be improved and made income producing; that Bell wanted to borrow the money from commercial sources but Mrs. Bell, over much protest, told him that it would be foolish to borrow the money when she had available funds to make the necessary improvements without going into debt and having interest costs to pay. Bell accepted only on the agreement that the property would be owned jointly; that he also insisted that the money must come from Mrs. Bell personally and not directly from the Motel; that the sum of $47,500.00 was spent by Mrs. Bell to build the Bell Apartments, and that $36,000.00 came from the Motel, and $11,500.00 from Mrs. Bell’s other personal sources. The money from the motel was first transferred to her personally, and by her to the Pasadena Bank account for the use and construction of the apartments.

Since Bell had the sole right of control and disposition of the community property of himself and his wife as he saw fit (Krueger v. Williams, 359 S.W.2d 48, Tex.Sp.Ct.) and since he permitted his wife to make collection and deposit the income from her separate estate into her personal account and into the account of the motel and use and exercise exclusive control and dominion over the same, absent fraud, what other act or conduct on Bell’s part was necessary for him to do to create an equitable estoppel that precluded him from claiming his community interest in the revenues from Mrs. Bell’s separate estate? We think the answer is “nothing.” “A Court of equity will not require the doing of a useless thing; * * *” (citing cases). Davis v. Carothers, Tex.Civ.App., 335 S.W.2d 631, points 4 and 5 (n.w.h.).

Appellees, in their brief say:

“Plaintiffs submit that as a matter of law, on the basis of the findings of the Trial Court, this Court should hold that $64,000.00 of the $85,000.00 used to improve the Motel was paid with community funds and that plaintiffs are entitled to one-half (½) of this sum or $32,000.00.”

We are certainly not in accord with this view. Under this record, how could a court of equity disregard the undisputed conduct of Bell that continued from January 1955 to his death in April 1958, and permit him or his heirs or legal representatives to enforce such demand against his widow and her estate? To permit Bell to do so would convict him of a positive act of fraud or bad faith or an act of concealment on which Mrs. Bell relied for protection of herself, and her estate and her children, the enforcement of which would impoverish her estate and result in great detriment to her.

We think the view above expressed finds support in Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777, point 1, page 779. In the case before us, it is without dispute that Bell, from the beginning, intended that Mrs. Twilligear, after her marriage to him, would own and have absolute control and use of the income from her separate estate. Bell’s acts and conduct indisputably support this view. In fact, there is no evidence to the contrary. Under this record Bell would not have been permitted to show that he did not so intend, and we think our view here is supported by Lindsay v. Clayman, supra. Moreover, we think the doctrine of estoppel would prevent Bell, under all the facts and surrounding circumstances, from so doing, and his heirs and legal representatives stand in his shoes. See Podolnick v. Hamilton, 349 S.W.2d 715, point 6, page 717, (Tex.Sp.Ct.). These views require this cause to be reversed and remanded.

Appellees’ cross-point 1 is to the effect that the Court erred in refusing to admit the 1948 will to probate and in refusing to grant letters testamentary. We sustain this point. It was stipulated by the parties that the 1948 will was executed by Bell with all the formalities required by law to make it a valid will when executed, and the court so found. Appellees had the burden of proving that the 1948 will had not been revoked but since appellants alleged that a subsequent instrument was executed which revoked the will offered for probate they necessarily had the burden of proving the proper execution of the instrument on which they relied. See Covington v. McDonald, Tex.Civ.App., 307 S.W.2d 335, (n. w. h.) and cases there cited.

Section 63 of our Probate Code provides:

“No will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done in his presence.” (Source: V.A.T.S., Art. 8285, Rev.Stats., 1911, Art. 7859).

The holographic instrument was unsigned, and did not comply with the foregoing statute, nor with Sec. 59 of the Probate Code, and therefore, did not revoke the 1948 will.

Being of this view, the 1948 will was not revoked and the independent executrix named therein is entitled to letters testamentary, and this view will require a reversal and remand of this cause.

Accordingly, this cause is reversed and remanded, and the Clerk of the District Court of Harris County is directed to certify this decree to the Probate Court of Harris County for observance.

The costs of appeal are taxed %ths against appellees, and ¼⅛ against appellants.


author: PHILLIPS, Justice.

text:
    SOUTHERN INSURANCE COMPANY, Appellant, v. FEDERAL SERVICE FINANCE CORPORATION OF TEXAS et al., Appellees.
    No. 1116.
    Court of Civil Appeals of Texas. Austin.
    July 10, 1963.
    Rehearing Denied Aug. 1, 1963.

      Sneed & Vine, J. P. Darrouzet, Austin, for appellant.
    Johnson & Baker, Victor B. Rogers, Robert A. Rowland, Austin, for appellees.
   PHILLIPS, Justice.

This case involves an appeal from two summary judgments granted against Southern Insurance Company.

The case presents a situation where one Gosztyla wrecked a car insured by Southern Insurance Company for $500 and subject to a lien in favor of Federal Service Finance Corporation of Texas for $632.52. Federal is named as loss payee in the policy issued by Southern Insurance Company. The car was a total wreck and Southern Insurance Company, allegedly under the provisions of the contract of insurance, authorized Simmons Motor Company to replace the wrecked car for another car for which Southern Insurance Company would advance $500 in payment.

Both Federal Service Finance Corporation and Simmons Motor Company claim the $500 due from Southern Insurance Company.

Southern Insurance Company filed an action in the County Court at Law of Travis County which it entitled a bill of inter-pleader alleging that it is indebted to Federal Service Finance Corporation and Simmons Motor Company in the sum of $500 and has issued to these parties its draft for said sum which was tendered into the registry of the court for its final disposition and judgment. Southern Insurance Company also asked for attorney’s fees.

Simmons Motor Company answered and filed a cross-action against Federal Service Finance Corporation of Texas alleging that at the request of Southern Insurance Company it had delivered to Gosztyla an automobile in replacement of the wrecked car, described above, under the terms and provisions of the above described policy of insurance, that subsequent to the delivery of the replacement automobile to Gosztyla, Simmons furnished Federal Service Finance Corporation of Texas certificate of title to the replaced vehicle and all of the necessary papers incident thereto, that Federal Service Finance Corporation refused to deliver to Simmons Motor Company the Insurance Company draft in payment of the automobile used in replacement. Then Simmons Motor Company prays judgment of the court for the deposit made therein by Southern Insurance Company, for costs and for attorney’s fees.

Federal Service Finance Corporation filed an answer excepting to the cross-action of Simmons Motor Company stating that Federal had never agreed for the substitution of collateral for the payment of an obligation due it and prayed that the cross-action be dismissed.

In their answer and cross-action Federal Service Finance Corporation further alleged that in February, 1962 it had financed the purchase of an automobile, describing the model, motor number and the amount of the monthly payments due. That the car was wrecked and no payment has been made to Federal by Southern Insurance Company and that there is still unpaid on Gosztyla’s obligation the sum of $632.52 which Southern is obligated to pay and which Federal has demanded.

Thereafter, both Federal Service Finance Corporation and Simmons Motor Company filed motions for summary judgment. Federal asked that it be awarded the $500 as proceeds of the insurance policy wherein it was the beneficiary as mortgagee of Gosztyla, that while Simmons Motor Company claims the $500 in payment of an automobile sold to Gosztyla, Federal did not agree to such substitution, has demanded that payment be made to them and contends that as a matter of law it is entitled to such payment.

Simmons Motor Company in its motion for summary judgment, alleges that at the special insistence and request of Southern Insurance Company it sold and delivered to said Southern Insurance Company a certain car, stating make, model, year and motor number, together with copies of certain certificates of title (attached to the motion and marked as exhibit “A”) transferring the car to Gosztyla. That the vehicle so delivered was in replacement of the abovementioned wrecked car on which Southern Insurance Company had a policy of insurance. Then Simmons prays for the $500 plus costs and attorney’s fees.

The court granted both Federal’s and Simmons’ motions for summary judgment and rendered judgment that each recover $500 from Southern Insurance Company.

Appellant Southern Insurance Company assigns error to the summary judgments granted both Federal and Simmons asserting that both judgments were contrary to Rule 166-A, Texas Rules of Civil Procedure, in that appellees’ pleadings taken as a whole do not show the absence of a fact situation in that attorney’s fees are sought and further that the pleadings of each appellee in itself is insufficient to support a summary judgment.

Under the view we take of this case, Simmons’ claim against Southern for the price of the car substituted and Federal’s claim against Southern as beneficiary under the contract of insurance create two separate and distinct contracts and the cases could have been severed before trial. Rule 41, T.R.C.P. The rights of Simmons under its contract with Southern had no bearing on Federal’s rights under the insurance contract, however, the trial court in awarding two separate judgments to Federal and to Simmons effected a constructive severance of the case. Warner Electric Brake & Clutch Co. v. Bessemer Forging Co., Tex.Civ.App., 343 S.W.2d 471, no writ hist.

Further, we hold that Southern Insurance Company was not entitled to bring a suit in interpleader in view of the two separate and distinct contracts that were presented to the court for determination. In Davis v. East Texas Savings & Loan Association, Tex., 354 S.W.2d 926, the Supreme Court stated the rule as follows: “An interpleader suit is authorized by Rule 43, Texas Rules of Civil Procedure, only when persons having claims against the plaintiff are such that he ‘is or may be exposed to double or multiple liability.’ The claims ‘must be such as to place the stakeholder in some real doubt or hazard to entitle him to the remedy of interpleader,’ Nixon v. Malone, 100 Tex. 250, 98 S.W. 380, 385, 99 S.W. 403, and the doubt must at least be a reasonable one.” (citing cases).

We hold that Southern’s sole liability for the $500 in question was to Simmons Motor Company as the contract of insurance and the rider designating Federal as mortgagee payee under the policy clearly provides for a substitution of collateral.

Inasmuch as Southern’s suit in in-terpleader should have been disallowed, Southern was not entitled to attorney’s fees. Orem v. Farmer’s National Bank in Brenham, Tex.Civ.App., 325 S.W.2d 149, writ ref., n. r. e.

With respect to Simmons Motor Company’s pleadings, appellant Southern maintains that they do not support the judgment for Simmons, the relief granted is not the relief prayed for, that they present a fact issue, that there was no affidavit to support the motion. We overrule these assignments of error.

The question as to the sufficiency of Simmons’ pleadings is covered by Rules 47 and 48, T.R.C.P.

Rule 47 provides:

“A pleading which sets forth a claim for relief, whether an original petition, counterclaim, cross-claim, or third party claim, shall contain
“(a) a short statement of the cause of action sufficient to give fair notice of the claim involved, and
“(b) a demand for judgment for the relief to which the party deems himself entitled.
“Relief in the alternative or of several different types may be demanded.”

Rule 48, T.R.C.P. provides, in part, as follows:

“A party may also state as many separate claims or defenses as he has regardless of consistency and whether based upon legal or equitable grounds or both.”

Simmons’ original pleading in this case alleges the following: That at the request of Southern Insurance Company, Simmons delivered a 1957 Plymouth automobile, motor number 16193749 to Anthony L. Gosztyla. That this vehicle was delivered to Anthony L. Gosztyla as a replacement for a 1958 Plymouth automobile, motor number LP2E73328, which had been totally wrecked by Gosztyla. That Simmons replaced this vehicle at the request of Southern Insurance Company under the terms and provisions of their policy of insurance which had previously been issued covering the loss sustained by Anthony L. Gosztyla. That Simmons prayed judgment of the deposit made into court and such other and further relief, legal and special, general and equitable which Simmons may be entitled to receive.

The original pleadings of Southern Insurance Company allege in part that: Southern was indebted to the defendants Simmons or Federal in the amount of $500. That it had issued to said defendants its draft for $500 to cover a loss sustained under its policy number A690580.

Simmons’ pleading does not state a demand in dollars and cents, however, it specifically prayed for the draft that was deposited into court by Southern which was for $500. In passing on the sufficiency of a pleading, all allegations in the adversary’s pleading may be considered and any omission in the pleading is cured when the omission is supplied by the opponent’s pleading. DeBusk v. Quest, Tex.Civ.App., 290 S.W.2d 569, writ dismissed.

Rule 166-A, T.R.C.P., provides in part:

“A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to amount of damages.”

We hold that the summary judgment in favor of Simmons Motor Company was correct.

In Gulbenkian v. Penn., 151 Tex. 412, 252 S.W.2d 929, 931, the court stated the rule applicable: “The duty of the court hearing the motion for summary judgment is to determine [whether] there are any issues of fact to be tried * *

There are no material facts in dispute between Simmons Motor Company and Southern Insurance Company which would deny Simmons the relief granted. The fact that Simmons substituted a car for Southern’s insured at Southern’s behest is un-controverted. It is also uncontroverted that the value of the car was $500 and in fact Southern tendered $500 into court.

Appellant Southern contends that in Simmons’ original pleading it alleges a sale to Gosztyla while in the motion for summary judgment Simmons alleges it sold the car to Southern and delivered it along with certificate of title to Gosztyla. This would not render the judgment invalid as under the facts pleaded, Southern’s liability is the same.

Appellant Southern Insurance Company contends that the sale of the car was not carried out in accordance with Article 1436-1, Penal Code, regulating the sale of automobiles, however, appellant has failed to point out to this Court in what respect said Article has not been complied with. We have examined Art. 1436-1 and cannot see what bearing it has on the sale in this case.

As stated above, we hold that the plain provisions of the contract of insurance issued by Southern Insurance Company under “Conditions” provides that:

“9. The company may pay for the loss in money, or may repair or replace the damaged or stolen property * * *”

The loss payable clause is standard and is executed in favor of Federal Service Finance Corporation as its interests might appear. This loss payable clause further provides:

“Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, agreements or limitations of such policy other than as above stated.”

We have not been cited to a case wherein the exact fact situation that we have here has been ruled on, neither have we been able to find one, however, a case involving the interpretation of an automobile collision insurance policy and the rights of the mortgagee protected by a loss payable clause such as we have in the case at bar is U. S. Trust & Guaranty Co. v. West Texas State Bank, 272 S.W.2d 627, 628, writ dismissed. In this case the court denied the mortgagee recovery under the loss payable clause of an automobile policy which limited coverage to collisions occurring while the automobile was within the United States of America for damage sustained while the owner was driving in Mexico. The court held:

“We think said endorsement does not grant additional coverage under the policy to anyone and that the unambiguous provision that the policy covers only accidents which occur ‘while the automobile is within the United States of America, * ⅜ * ’ excludes coverage of accidents which occur outside said territorial limits. Therefore, there was no coverage of the accident which occurred in Mexico.
* * * * * * “The plain, unambiguous language of the policy compels the conclusion that while the automobile was without the territory covered by the policy there was no coverage under the policy. * * The policy simply provided there was no insurance while the car was without the territory stated.” (citing cases).

Also see Wyche v. Trinity Universal Insurance Company, Tex.Civ.App., 198 S. W.2d 158, no writ history.

The plain unambiguous language of Southern Insurance Company’s contract allows them to replace the damaged property.

The general rule is that where the written contract is clear and certain it will be taken to express the will of the parties, and that it is not proper to look elsewhere for their intention. Milliken v. Callahan County, 69 Tex. 205, 6 S.W. 681.

Federal Finance contends that the loss payable clause operates as a separate contract between the insurer and the mortgagee and upon the occurrence of the condition in the policy, the rights of the mortgagee under the endorsement are vested and nothing which the insurer does or which the mortgagor does after the occurrence of the loss can affect the vested rights of the mortgagee.

We overrule this contention as the endorsement clause to the mortgagee (Federal Finance) is part of the contract which includes the original policy as the provisions of the endorsement provide. Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472.

Federal Service Finance cite McCullough v. Zero Plate Co. Inc., Tex. Civ.App., 269 S.W.2d 830 for the proposition that where the mortgagor agrees to insure the mortgaged property for the benefit of the mortgagee the mortgagee has an equitable lien on the proceeds of the insurance policy to the extent of debt secured by the mortgage. We hold that Federal is correct in this contention. Here the proceeds of the policy was another car upon which Federal has such a lien except as such ljen would contravene the certificate of Title Act, Art. 1436-1, Sec. 42, Vernon’s Ann. Penal Code with respect to sale of the car to a third party.

It is our opinion that the pleadings in this case disclose that Federal has apparently lost its lien which it was entitled to have transferred to the substituted collateral. We are unable to determine that the loss of such lien was attributable to the negligence or fault of Southern or that it is not attributable to Southern. It is our opinion that, in the interest of justice, we should remand, rather than render judgment, in order that Federal may prove, if it is able, that the loss of its lien was caused by Southern, this theory of the case not having been developed in the summary proceedings.

We affirm the summary judgment rendered for Simmons Motor Company and reverse the summary judgment granted Federal against Southern and remand this portion of the case for trial in accordance with this opinion.

All costs in this behalf expended are assessed one half against Southern Insurance Company and one half against Federal Service Finance Corporation.

Affirmed in part and reversed and remanded in part.


author: CHADICK, Chief Justice.

text:
    Pick SMITH, Appellant, v. F. E. CARTER et al., Appellees.
    No. 7486.
    Court of Civil Appeals of Texas. Texarkana.
    July 16, 1963.

      Joe Schultz, Mexia, for appellant.
    Wynne & Wynne, Wills Point, for appel-lees.
   CHADICK, Chief Justice.

This action originated as a suit in trespass to try title and for injunctive and other relief. The judgment of the trial court is affirmed.

The plaintiffs in the trial court, F. E. Carter, S. B. Bruner and C. E. Hammon, as Trustees of the Providence Community Building and Association, recovered title and possession of an undivided ¾6 interest in a two acre tract of land, a part of the E. M. Hunt Survey, Smith County, together with other rights and awards not material to mention, but including a frame building, with ingress and egress thereto, located on the tract.

The trial court defendant, Pick Smith, the appellant here, does not question the trial court adjudication of title to the tract. The appeal rests primarily upon a dissatisfaction with the trial court’s decree that the Providence Community Building and Association recover title and possession of the improvements placed upon the two acres while the tract was in possession of Providence School District #51, and incidentally upon denial of relief sought by cross action. To present his complaint, the appellant has briefed five points of error. The points are grouped and argued together. The efficacy of the points argued is contingent upon the appellant supporting his basic premise that there is an absence of evidence in the record tending to prove a clubhouse placed on the tract by a ladies home demonstration club was not at any time used by the school for school purposes. The appellees’ brief is principally devoted to the substantiation of their proposition that a provision in the deed from the common source of title is a condition subsequent, and as a consequence the appellant had no rights in the improvements located upon the tract because the school district conveyed the improvements prior to appellant’s attempted re-entry pursuant to such reversionary provision.

The common source of title, Henry H. Smith and wife, Mrs. Laura Smith, conveyed the two acre tract to the Trustees of Providence School District #51 by warranty deed, dated January 11, 1909. This grant was made with the following provisos :

“ ‘Provided that the said trustees (of Providence School District No. 51) or their successors in office should see fit or deem it advisable to move the school building to some other site in said district then and there (on such removal) shall the heretofore described school site of two acres of land (without due process of law) revert back to the Grantors, Henry EL Smith and his wife, Mrs. Laura Smith, their heirs and assigns.’ ”
“ ‘Provided further that all buildings, furniture, fittings and equipments pertaining to said school, shall be exempt from reverting back to grantors in case the said trastees (or their successors in office) should change the school site of said school district, (Providence) No. Si, from the heretofore described two acres of land to some other place in said Providence School District No. SI.’ ”

In 1949, the school district conveyed the two acres to the Trustees of the Providence Community Building and Association, and the parties tacitly concede the deed conveyed title to improvements, that is the buildings, upon the land unless ownership was defeated by the quoted provisos.

The appellant stakes his case on the construction of the second proviso. He construes this language as exempting from reversion only the “buildings, * * * pertaining to said school”. Such construction is somewhat narrower than a logical construction of the entire language seems to indicate. The punctuation confines the phrase “pertaining to said school” to a modification of “fittings and equipment” rather than “buildings” or “furniture”. However, if the appellant’s narrow construction is employed, the evidence will not support his contention. Examination and discussion of the evidence will be made.

The wife of one of the trustees testified that the Home Demonstration Qubhouse was placed on the tract in the early “30s”. In reply to counsel’s question asking what use was made of the building, she listed numerous community social, cultural and civic activities, and said, “our last school there was in 1941, the elementary grade was there until 1941.” She also stated, without giving dates or which building was referred to as between the school and club building, that a nurse from Tyler gave a full course of nursing and first aid classes in the building and that'a vocational agriculture teacher gave farm improvement shows and lectures there. Her testimony may be construed as referring to the club building and as factual support for the trial court’s findings that the clubhouse was a part of the facilities on the tract used for school purposes and as such expressly exempted from reversion.

This testimony and inference therefrom in their most favorable aspect constitute more than a scintilla of evidence supporting the trial court’s findings and the judgment entered. See Bussan v. Donald, Tex. Civ.App., 244 S.W.2d 271 W/R; 41B Texas Jurisprudence 856, Sec. 625; 4 Texas Jurisprudence (2) 398 Sec. 839; “No Evidence” and “Insufficient Evidence” Points of Error (Calvert) 38 Texas Law Review (April, 1960) 362 at 364 and cases cited.

The duty of this Court is clear. The appellant’s points of error are each overruled, and the judgment of the trial court affirmed.