author: CLAYTON, Justice.

text:
    Domingo R. CUELLAR, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 5887.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 11, 1967.
    Rehearing Denied Nov. 1, 1967.

      Warren Burnett, Robert D. Pue, Odessa, for appellant.
    Emil C. Rassman, John E. Gunter, Midland, for appellee.
   OPINION

CLAYTON, Justice.

This is a Workmen’s Compensation case, appealed when the court granted appellee a judgment n. o. v. Appellant here, Domingo R. Cuellar, plaintiff below, had been an employee of Conner Construction Company, whose insurance carrier was the appellee here, for some ten years in various capacities, mainly working on pipeline construction. His work had not been continuous for Conner, but he had worked for about three days for the company before the accident involved in this case occurred on March 11, 1964. Conner was digging a ditch and installing a pipeline for T. & P. Coal and Oil Company on a lease in Ector County, Texas. The latter company hired E. L. Farmer Trucking Company to pick up some pipe and bring it to the location and “string” it along the ditch. The pipe arrived in three trucks of Farmer Company and one of the truck drivers asked Conner’s foreman, A. A. Jones, for some men to help in “stringing” the pipe and Jones let the truck driver have two men, appellant Cuellar and another, and Jones went on about other business of the pipeline (the trucks were to be paid for during the time they remained on the job). When Cuellar was asked to tell the jury what happened when A. A. (Jones) sent him to help the truck driver, appellant answered:

“A Yes, sir, I sure do it. The 11th of March, 1964, I worked with Jack Conner and Mr. A. A. sent me and Mr. Martinez to go unload the trailers on the pipeline and we go because he is our foreman, we have to do what he say and then we start to unload the first trailer and then we go to the second trailer and then it happened.”

Cuellar received injuries when one of the pipes fell off the truck and hit him. (The truck driver was also injured by the pipe). He further testified:

“Q Who told you and Mr. Martinez to go with the truck driver?
A A. A.
Q A. A. Jones?
A Yes.
Q Who does he work for ?
A Jack Connor.
Q What did he tell you to do ?
A Help those truck drivers unload the trailers of pipe.
Q Had you ever done this before?
A Yes, sir, I got experience.
Q You had worked on pipelines a number of years?
A Yes, sir.
Q Did you know what to do?
A Yes, sir.
Q And when you got down there and got stopped and the truck driver had you take the chains and boomer off the truck?
A Yes, sir.
Q Then did he ever tell you anything else to do ?
A No, sir.
Q Was there any reason for him to tell you what else to do ?
A He don’t told us anything to do, he just pulled the truck and this man stand there and shake the chain and we can’t hold it, too many pipes.”

Also:

“A He told us to take loose the chains and he never tell us anything more, so the driver, the guy in the cab start to pull and it was too much sand over there and the trailer start shaking and we can’t hold it.
Q Were the guards taken off of the side of the truck ?
A Yes, we call them shoes.
Q These are the things that help hold the pipe on?
A Yes.
Q And the truck driver told you to remove those?
A Yes.”

After all the testimony the court submitted the case to the jury on special issues. The first issue was whether or not appellant was “the borrowed employee” of E. L. Farmer Trucking Company, accompanied by a definition of the term “borrowed employee”. The jury answered “He was not the borrowed employee. Other issues were answered favorably to appellant, and appellee then filed its motion for judgment n. o. v., asserting that the jury’s answer to Special Issue No. 1 was “contrary to the evidence, that there is no evidence or insufficient evidence” to support the jury’s answer to this issue, that such was against the overwhelming preponderance of the evidence which “clearly shows that the plaintiff was in law a borrowed employee of and subject to the sole direction, supervision and control of E. L. Farmer Trucking Company at the time of the accident in question and judgment should therefore be entered in favor of the defendant, whose subscriber was Conner Construction Company and not E. L. Farmer Trucking Company.” The court granted this motion, reciting :

“ * * * and it further appearing to the Court, and the Court so finds, that a directed verdict in favor of the defendant would have been proper in this cause, and the Court is of the opinion and finds as a matter of law that under the evidence adduced at the trial the law is with the defendant because the plaintiff was, as a matter of law, a borrowed employee and subject to the direction, supervision and control of E. L. Farmer Trucking Company, and not subject to the control, supervision and direction of defendant’s subscriber, Conner Construction Company, at the time of plaintiff’s accident; therefore, said defendant’s motion to render judgment notwithstanding the findings of the jury should be granted in favor of the defendant and the jury’s findings on the aforesaid Special Issue No. 1 should be disregarded by the Court, and the plaintiff is not entitled to recover herein.”

Appeal was taken to this part of the judgment, which was presented as the sole point of error “since there was evidence from which the jury could find, as it did in fact find, that appellant was not the borrowed employee of E. L. Farmer Trucking Co.”

Under this situation, as presented to us, we conceive our duty to be to examine all the evidence, and if we find any evidence of probative force to support the jury’s verdict, the verdict will be sustained. As stated in the case of Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952):

“Also, to sustain the action of the trial court in granting judgment non ob-stante veredicto, it must be determined that there is no evidence having probative force upon which the jury could have made the findings relied upon. Whiteman v. Harris, Tex.Civ.App., 123 S.W.2d 699, writ refused; Warren v. Schawe, Tex.Civ.App., 163 S.W.2d 415, writ refused.”

See also Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224, 226 (1942), and Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933, 937 (1958). That the question of employment is a fact issue upon which the jury must pass seems beyond question. In Southern Underwriters v. Willis, 110 S.W.2d 252, 254 (Tex.Civ.App., 1937; err. ref.), the court stated:

“ * * * The actual employer, in legal contemplation, * * *, was a question of fact, unless the testimony bearing on such issue was not only uncontradicted, but was also so definite and conclusive that reasonable minds could not differ as to its effect. When the ultimate fact to be ascertained is not shown by direct testimony, but is to be inferred in whole or in part from other circumstances in evidence, a jury question is presented.”

We might remark that most of the conflicting testimony arises from the difficulty appellant was undergoing, due to limited ability to speak English fluently, in answering leading questions of opposing counsel:

“A You know it is pretty hard for me, sometimes I understand something, if I speak good English I not tell you no lies, but is pretty hard for me, my language is different, sir.”

In addition to what has been previously quoted from the testimony, the Assistant to the President of Farmer Trucking Company testified:

“Q Now, would you tell the jury what the truck drivers duties were after they go to the lease ?
A Well, ordinarily we will bring a load of pipe into the lease and where there is a pipeline contractor performing a job, laying the line, our trucks will come in to the line and at this point the drivers, are instructed to contact the pipeline corm pany’s spread foreman, job foreman, whatever you might call him, for instructions as to the unloading. We are not supplied with a map of the line and we know nothing whatsoever about how the contractor wants to lay this. All our truck drivers do is get to the line, look up the contractor’s pipeline foreman and then follow his instructions.
Q All right, sir, do your truck drivers at any time, when they get out there with a load of pipe such as happened on March 11th, do they at any time assume control or supervision of the unloading of the pipe?
A When they work with a pipeline contractor at no time do they ever assume control.
Q Their responsibility then is to get to the location and then report to the foreman of the pipeline company?
A And follow his instructions from that point on.”

And:

“Q * * * when the truck driver reports to the location under whose supervision is he then?
A He will then work for the pipeline contractors foreman.
Q Will he do whatever the pipeline foreman tells him?
A Well, within reason, he is instructed to follow his instructions.
Q As long as it does not damage his truck ?
A That is right.
Q At any time does he assume control or supervision over any of the employees of the pipeline contractor?
A I would know of no reason that he would ever do that.”

And further:

“Q Now, would you tell the jury whether or not Domingo Cuellar, the plaintiff in this case, was ever paid one nickel by E. L. Farmer Trucking Company?
A No, he was never paid by us.
Q Was he ever on the payroll as a borrowed employee?
A No.”

The appellee insurance company paid the first insurance check- and the safety engineer or director of safety of the Conner Company told appellant, “Don’t worry about a thing, your hospitalization and everything is taken care of, we are going to start your compensation and have your old job back for you,” while at a time an investigation of the accident was in progress.

The appellant, on re-direct examination, testified:

“Q Mr. Myrick, the truck driver, did he have to tell you anything to do with the experience you had?
A. No.
Q Did he have the right to take you into town or fire you ?
A No, sir.
Who were you working for ? a
For A. A. for Jack Conner. <⅞
Mr. Jones could have fired you? o*
Yes, sir. <
Or he could have sent you to town? a
Yes, sir. <
With the driver of the truck? a
Correct.
Did you ever receive any pay or anything from E. L. Farmer Trucking Company? a
A No, sir.
Q Did you ever get a compensation check from E. L. Farmer Trucking Company insurance company?
A Not a penny, sir.
Q Did you get a check from the Liberty Mutual Insurance Company or Jack Conner’s insurance company?
A One check of thirty-five dollars.”

As we have said, there is testimony contradictory to this, but as a question of fact, the jury could determine the credibility of the witnesses and the weight to be given their testimony and could, on the basis of quoted testimony, properly arrive at their conclusion.

We feel that they did so and that therefore we are impelled to reverse and render the judgment of the court so as to affirm the finding of the jury in favor of appellant in answer to Special Issue No. 1 and remand the cause for judgment by the trial court on the other special issues involved.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    Fred SMITH dba Aragon Ballroom and C. D. Wyche, Appellants, v. The STATE of Texas, Appellee.
    No. 11511.
    Court of Civil Appeals of Texas. Austin.
    Sept. 13, 1967.
    Rehearing Denied Oct. 4, 1967.
    Second Motion Denied Nov. 1, 1967.
    As Amended Jan. 30, 1968.

      Small, Herring, Craig, Werkenthin & Shannon, Fred B. Werkenthin, Austin, for appellants.
    Crawford C. Martin, Atty. Gen., George Cowden, First Asst. Atty. Gen., A. J. Car-ubbi, Jr., Executive Staff Asst. Atty. Gen., John R. Grace, Gordon C. Cass, Asst. Attys. Gen., for appellee.
   O’QUINN, Justice.

The State brought suit against Fred Smith to collect delinquent admissions taxes under chapter 21, Title 122A, Taxation-General, V.A.T.S., claimed to have been incurred in operation of the Aragon Ballroom in Dallas County. By its suit the State also sought to foreclose a tax lien on real property used in operation of the place of amusement and claiming the lien first and superior to any interest owned by C. D. Wyche.

The State’s claim for admissions taxes covered two separate periods of time. The first period ran from April 1, 1957 to December 31, 1960. The taxes claimed for this period were in excess of $29,000. The second period began April 1, 1963 and ended March 31, 1964. Taxes claimed for this period were about $11,750. The State prayed for total recovery in the amount of $37,507.99 and for foreclosure of the tax lien against the real property.

It appears that throughout each of the two periods described Fred Smith was the owner of the real property used in the operation of the Aragon Ballroom, and C. D. Wyche held a vendor’s lien and deed of trust.

The case was tried before the court without a jury. On September 27, 1966, the district court rendered judgment for the State in the sum of $37,507.99 as taxes, penalty and interest, and ordered foreclosure of the tax lien against the real property. The trial court also declared the State’s lien first and superior to any interest or lien claimed by C. D. Wyche as holder of the vendor’s lien and deed of trust.

Fred Smith and C. D. Wyche have appealed and assign fiftteen points of error.

Appellants make three principal contentions under these assignments. Under the first eleven points, appellants argue that the State failed to prove its right to the admissions taxes. The State’s lien is challenged under points twelve through fourteen.

The third contention, under the fifteenth point, is to the effect that Article 21.04 is unconstitutional because its enactment by the legislature failed to comply with Article III, section 35, Constitution of Texas, Vernon’s Ann.St., requiring the subject of an act or bill to be stated in its title or caption.

This last issue we decided this date in another cause contrary to the contention here made by appellants. We overrule the assignment of error and make reference, for discussion of the question, to the State of Texas v. Rex Rope, Cause No. 11,539, Tex.Civ.App., 419 S.W.2d 890.

The trial court filed findings of fact and conclusions of law. Appellants timely excepted and requested additional findings of fact and conclusions of law. The court refused to make the suggested additional findings, but made an additional finding of fact to the effect that the amount of the taxes and the periods of time in which the taxes accrued were shown by the comptroller’s audit placed in evidence at the trial.

Appellants argue that the State had the burden of showing that Fred Smith in fact operated a dance hall, night club, or place of amusement. In addition, it is argued that the State must prove the amount paid as admissions to the dance hall in excess of fifty-one cents, the basis for the tax under Article 21.02(4).

We are unable to agree with either of these contentions. Appellants attack the State’s evidence offered at the trial because it fails to meet the requirements of Articles 3722 and 3731a, Vernon’s Ann. Tex.Civ.St., permitting copies of documents to be introduced if certified.

Proof of tax claims may be made by a written claim showing the amount of the tax due the State when certified to by the Comptroller of Public Accounts or his chief clerk. Article 1.08, Title 122A, Taxation-General.

Article 1.08 as found in Title 122A since enactment of this Title in 1959 reads as follows:

“Art. 1.08 Certified Claim as Evidence If any person, firm, corporation, or association of persons engaging in or pursuing any occupation on which, under the laws of this State, an occupation tax is imposed, who fails or refuses to pay such tax, and it becomes necessary to intervene in any manner for the establishment or collection of said tax claims or penalties, a claim showing the amount of tax due the State, certified to by the Comptroller of Public Accounts or his chief clerk, shall be admissible in evidence in such proceedings and shall be prima facie evidence of the contents thereof; provided, however, that the incorrectness of said claim may be shown.” (Emphasis added). Acts 1959, 56th Leg., 3rd C. S., p. 187, ch. 1.

Appellants acknowledge their awareness of this statute, but deny its application in this case. Appellants argue that use of the word “intervene” in this article limits the proof of a tax claim by this method to “legal proceedings” already instituted in which the State intervenes. Appellants say that in this cause, brought by the State as party plaintiff, the State did not “intervene,” and the statute may not be invoked.

Article 1.08 derives from Article 7047a-20, sec. 4 (Acts 1941, 47th Leg., ch. 631, p. 1393). When the legislature placed Article 1.08 in the enactment of Title 122A in 1959, the phrase “in any judicial proceedings” in the old law was deleted and was not carried over into Article 1.08.

As the article read prior to 1959, there was reason to construe the law to declare that if “it becomes necessary to intervene in any manner for the establishment of collection of said tax claims * * * in any judicial proceedings, a claim showing the amount of the tax due” may be placed in evidence if certified. (Emphasis added). But when reference to “any judicial proceedings” was omitted, it seems clear the legislature intended to remove this limitation, and to open use of the certified claim “in any manner” to establish the tax claim.

Under a settled rule of statutory construction, the annulment by the legislature of judicial proceedings clearly evidenced a legislative intent to change the law. Putnam Supply Co. v. Chapin, Tex.Civ.App., Eastland, 45 S.W.2d 283, affirmed 124 Tex. 247, 76 S.W.2d 469. The courts are obligated to give effect to this legislative change and modification of the statute. Gateley v. Humphrey, 151 Tex. 588, 254 S.W.2d 98.

The Supreme Court in Gateley v. Humphrey, supra, quoted the following statement of the rule from a decision of the San Antonio Court of Civil Appeals:

“Ordinarily, the mere fact that significant words are omitted from the re-enactment or amendment of a statute imports a conclusive presumption that the Legislature intended to exclude the object theretofore accomplished by the abandoned words.” San Marcos Baptist Academy v. Burgess, Tex.Civ.App., San Antonio, 292 S.W. 626, 627, col. 2 (no writ).

The object accomplished by the phrase “in any judicial proceeding” as used in the old statute might have been construed to limit an “intervention” to its technical meaning in judicial proceedings. By omitting judicial proceedings from the reenactment or amendment, the legislature clearly intended for the State to intervene in any manner where to interpose might be necessary to collect occupation taxes and penalties. “To intervene” simply means “to come in or between by way of hindrance or modification; to interpose.” (Webster’s New International Dictionary, sec. ed., unabridged).

We conclude that by inclusion of Article 1.08 in its present form in Title 122A, the legislature meant to provide a uniform method by which prima facie proof of claims for occupation taxes might be made in any proceeding. The statute expressly limits the certified claim to prima facie proof and provides that incorrectness of the claim may be shown.

The State did not attempt to prove the tax claim against Fred Smith by certified claim for the period April 1, 1957 to December 31, 1960, as authorized by Article 1.08. The State’s claim with respect to these taxes was based on copies of documents purporting to be tax reports made by Fred Smith or Mrs. Fred Smith. The copies, without certificate or other authentication, were offered through a witness, W. C. Schulle, assistant director of excise and store tax division of the State Comptroller’s office. Mr. Schulle was able to testify that according to reports received by him in the office of the Comptroller, Fred Smith owed taxes in a stated amount. The reports were not offered in evidence, and copies were introduced in evidence over objection of appellants. We do not believe the evidence of Mr. Schulle, even though not disputed, and the uncertified copies of documents purporting to be tax reports will constitute the basis for rendition of judgment for taxes claimed for this period of time.

The second period of time for which the State claims taxes runs from April 1, 1963 to March 31, 1964. This claim was •established by a certificate of the State Comptroller in the amount of $11,752.66 for admissions taxes incurred by Fred Smith doing business as Aragon Ballroom. Proof of this claim was made in compliance with the requirements of Article 1.08 and established prima facie proof. Appellants objected to introduction of this evidence, but did not offer any evidence of the incorrectness of the claim. We overrule appellant’s assignments with respect to this part of the tax claim and hold that the trial court correctly found for the State on its claim for admissions taxes for the period April 1, 1963 to March 31, 1964.

The second principal issue appellants raise pertains to the State’s claim of a first and superior lien on the real property as against C. D. Wyche, the holder of a vendor’s lien and deed of trust.

In another cause, decided this date, we have discussed the amending of Article 1.07 by the legislature in 1961, and hold that this article as amended did not repeal the specific lien of the admissions tax under Article 21.04(2). Reference is made to Miller et al. v. Calvert, Comptroller et al., Tex.Civ.App., 418 S.W.2d 869.

The principal change accomplished by the amendment of Article 1.07 was to require tax liens on real estate to be recorded in the county in which the property is situated before the lien will be effective as to the interests of “any mortgagee, holder of a deed of trust, purchaser, pledgee, or judgment creditor” who acquired a title or interest in the property before notice of the State’s lien was recorded.

There is no evidence that the State recorded its tax lien with respect to the real property on which the Aragon Ballroom was operated.

Appellants contend that Article 21.04 does not give the State a lien prior and superior to a pre-existing vendor’s lien or deed of trust because this statute does not fix a lien on any interest in real estate except the interest of the owner or operator of the place of amusement. We determined this issue in another case, decided this date, contrary to the contention of appellants, and will not repeat here our discussion of the point. We overrule appellants’ contention and refer to The State of Texas v. Rex Rope, Cause No. 11,539, Tex.Civ.App., 419 S.W.2d 890.

We believe Article 1.07 as amended was cumulative of Article 21.04(2), and that when the legislature prescribed in Article 1.07 that any tax lien affecting real estate shall be recorded before the lien will be effective as to interest acquired before such notice by a “mortgagee, holder of a deed of trust, purchaser, pledgee, or judgment creditor”, it was intended that liens for admissions taxes affecting real property would be subject to this recording requirement.

In view of the disposition we must make of this case, under which the cause will be remanded to the district court, we now dispose of the issue raised by appellants as to the retrospective effect of Article 1.07 as amended in 1961.

Appellants argue that even if Article 21.04 provided a lien superior to the interest of Wyche, the 1961 amendment of Article of 1.07 will govern not only the State’s lien for taxes accruing subsequent to enactment, but also the lien for taxes accruing prior to enactment.

We conclude that the amendment in 1961 of Article 1.07 operates prospectively only. We find nothing in the legislative act to show an intent to give the statute retrospective effect.

The legislature is denied by the Constitution power to release or extinguish a liability or obligation to the State in whole or in part. Article III, Sec. 55, Constitution of Texas. A tax that has been levied and has become a liability matured under a tax statute is an indebtedness or obligation within the meaning of this provision of the Constitution. State v. Pioneer Oil and Refining Co. (Tex.Com.App.), 292 S.W. 869; Ollivier v. City of Houston, 93 Tex. 201, 54 S.W. 943; Community Public Service Co. v. James, Tex.Civ.App., Austin, 167 S.W.2d 588 (writ ref., W.M.); Reliance Insurance Co. v. Nutt, Tex.Civ.App., Austin, 403 S.W.2d 828 (writ ref., n. r. e.).

The lien asserted by the statutes is so essential to enforcement and collection of the tax that, without express declaration by the legislature, in the amendment of 1961, of intent to extinguish prior liens, we are unwilling to find it was the purpose of the legislature to make Article 1.07 as amended retroactive in application.

We reverse and remand in part, affirm in part and reverse and render in part. As to the first tax period, the judgment of the district court is reversed, and that portion of the cause is remanded for further proceedings in conformity with this opinion, a lien being allowed for such taxes as the State of Texas may prove due by legally competent evidence. As to the second tax period, the judgment of the trial court is affirmed in so far as the judgment awards a recovery for taxes, but is reversed and rendered in so far as the judgment forecloses a lien, and for this tax period the lien is disallowed.

Reversed and remanded in part, affirmed in part and reversed and rendered in part.

ON MOTIONS FOR REHEARING

The State and appellees have filed motions for rehearing. As this cause is remanded, we feel that further instructions are appropriate.

We believe that a careful reading of Article 1.07 as amended in 1961 discloses that it does not remove or repeal the lien imposed by Article 21.04(2) on all property used by the owner or operator in a place of amusement. Before the lien can be enforced on real estate, notice must be filed in the county where the real estate is situated. (Article 1.07A). The lien becomes valid and effective “against any mortgagee, holder of a deed of trust, purchaser, pledgee, or judgment creditor” when the notice is filed and recorded. The amendment had no application to pending litigation. (Sec. 4 of 1961 Act).

We conclude that the legislature intended not to repeal or disturb the basic principle of imposing the lien for admissions taxes, but did intend to require the State to record the lien, if real estate should be affected, before the lien would apply to the specific interests named in the amendatory statute.

The motions for rehearing are overruled.

Motions overruled.


author: CHAPMAN, Justice.

text:
    M. W. JONES and J. J. Merrifield, Appellants, v. HYDRO CORPORATION, Appellee.
    No. 7742.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 9, 1967.

      Miller, Sanders, Baker & Miller, Robert Sanders, Amarillo, for appellants.
    Culton, Morgan, Britain & White, Neal R. Allen, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal from a judgment based upon a jury verdict in a suit filed by Hydro Corporation against M. W. Jones, his wife, Judy M. Jones and J. J. Merrifield, “ * * each individually and d/b/a White Deer Pump Service.” At the close of the evidence, Judy M. Jones was awarded an instructed verdict. There is no appeal therefrom.

After motions for summary judgment by Hydro Corporation and J. J. Merrifield were properly denied by the trial court the case was submitted to a jury, which found by a preponderance of the evidence (1) that the goods, wares and merchandise set out in the sworn, verified account were ordered by White Deer Pump Service; (2) that they were delivered; (3) that the reasonable and customary charges for same were $17,504.-89; (4) that M. W. Jones was one of the owners of White Deer Pump Service; (5) that J. J. Merrifield was one of the owners of said company; (6) and that a reasonable attorney’s fee for plaintiff’s attorney was $1,750.49.

After applying the credits to the account sued upon, “set forth in Plaintiff’s first supplemental petition” judgment was rendered for plaintiff-appellee, together with interest and attorney’s fees.

By the first two points appellant Merri-field contends there is not any evidence that appellant Merrifield owned, or had anything to do with or any right in the business known as White Deer Pump Service, therefore the trial court committed reversible error in submitting Special Issue No. 5 to the jury.

Since the first two points are not briefed, we would be justified in assuming they are waived. McClanahan v. Cook, 401 S.W.2d 352 (Tex.Civ.App.-Amarillo, 1966, no writ) and the cases there cited on the question.

Additionally, no objections of any nature are shown in the record to the submission of the issue, nor does the record reveal that as to Mr. Merrifield the question of no evidence to support the submission of the issue was raised in the motion for instructed verdict.

The contentions come too late. Rule 272, Vernon’s Ann.Tex. Rules of Civil Procedure, provides, inter alia, that after the evidence is closed the charge shall be submitted to the attorneys for the respective parties for inspection and that all objections thereto not made and presented shall be considered as waived. This rules supersedes Article 2185, Revised Civil Statutes of Texas 1925, which in turn supersedes Article 1971, Vernon’s Sayles’ Texas Statutes 1914, and is in substantially the same language. The Supreme Court of Texas in construing the question has held in Electric Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S.W. 1030 (1920) that: “The requirement of the law is that all such ‘objections’ shall in every instance be presented to the court before the charge is read to the jury; and the statutory penalty is that ‘all objections not so made and presented shall be considered as waived.’ ” Our court has held that: “The fact that this error is brought forward in the motion for new trial does not take the place of the objections required by article 1971, Vernon’s Sayles’ C.S., 1914.” Twichell v. Klinke, 272 S.W. 283 (Tex.Civ.App.-Amarillo, 1925, writ dism’d).

In any event, there is probative evidence to the effect that Mr. Merrifield was one of the owners of White Deer Pump Service for the period covered by the verified sworn account. Mr. Allen, president of appellee, testified without objections that for the period involved White Deer Pump Service was owned by three persons and that one of them was J. J. Merrifield. Accordingly, the first two points are overruled.

The next two points urge reversible error in submitting Special Issue No. 5 for the reason appellee failed to plead J. J. Merrifield was the owner or one of the owners of White Deer Pump Service. We find no objections in the record to the submission of Special Issue No. 5 for the reason there are no pleadings upon which to support an inquiry as to whether Merrifield was the owner or one of the owners, so the rules above announced would also apply to these two points. See also Rule 90, V.A.T.R. Additionally, the pleadings alleged M. W. Jones, Judy M. Jones and J. J. Merrifield, each individually and d/b/a White Deer Pump Service ordered and there was delivered to them between July 1, 1965, and January 26, 1966, the goods, wares and merchandise set forth in “Exhibit A,” which was the sworn, itemized, verified account sued upon. In this connection appellant contends the abbreviation “d/b./a” in the pleadings for “doing business as” is insufficient and has no legal significance in alleging Merrifield was one of those doing business as White Deer Pump Service. This court in Hicks v. Glenn, 155 S.W.2d 828 (Tex.Civ.App.-Amarillo, 1941, no writ) has held: “ * * * the initials ‘DBA’ mean ‘doing business as.’ ” We believe the form “d/b/a”, so commonly used in pleadings in Texas, has become of such common usage as to give those against whom the term is used sufficient notice that “they were alleged to be doing business as * * Accordingly, we hold the contention is without merit.

In his Point 5 appellant Merri-field urges reversible error in refusing to submit his requested Issue No. 13 inquiring of the jury if the goods, wares and merchandise set out in “Exhibit A” were delivered to Merrifield at his special instance and request. The point is without merit. Special Issue 2 inquired if such merchandise was delivered to White Deer Pump Service and Special Issue No. 5 inquired if Merri-field was the owner or one of the owners of White Deer Pump Service. The requested Special Issue 13 is clearly included in the two issues just mentioned. “ * * * it is not necessary, nor proper, to twice submit the same issue in different form or in different language.” Allcorn v. Fort Worth & R. G. Ry. Co., 122 S.W.2d 341 (Tex.Civ.App.-Austin, 1938, writ ref’d).

Point No. 6 complains of the failure to submit Mr. Merrifield’s Special Requested Issue No. 15 inquiring as to whether appellant Merrifield had promised to pay ap-pellee the several sums of money in the account sued upon.

Since we have held there was some probative evidence that Merrifield was one of the owners of White Deer Pump Service, the delivery to such company was delivery to Merrifield. It is without controversy in the record that the goods, wares and merchandise were received and accepted and that those upon which judgment was rendered have not been paid for. The promise to pay under such circumstances would be implied in law. The Supreme Court of Texas in the early case of Love v. Doak & Tims, 5 Tex. 343 (1849) held:

“In an action on an account for goods and wares sold and delivered, the sale and delivery are the material facts on which depends the liability of the defendant * * *. The legal inferences or conclusions from these facts of the defendant’s liability and promise to pay are not essential averments; * * * ”

If not essential averments, then they would not be essential proof in respect to which Point No. 6 complains.

Point 7 urges reversible error in refusing an instructed verdict for Merrifield for the reason that there is no evidence in the record that the items in “Exhibit A” were delivered to Merrifield and Point No. 8 urges such error for the reason there is no evidence that Merrifield promised to pay the sums of money in the account sued upon. The statements and invoices represented by Hydro’s Exhibits 2 through 25 show the records of delivery to White Deer Pump Service and the prices, the amounts paid, unpaid, etc. Delivery to that company was delivery to Merrifield under the record before us, when we honor the inferences that must be indulged in favor of the jury findings and the judgment rendered by the court thereon.

In Merrifield’s first amended original answer he complied with the rules constituting his Rule 185 sworn denial, which placed the burden on appellee to prove the case as at common law. J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941); Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App.-Dallas, 1963, no writ). From what we have already said it is obvious that we believe appellant did so with the testimony of their president, Russell G. Allen, Jr., and the exhibits introduced. The burden then shifted to appellants to overcome that proof by some sort of affirmative avoidance. Burrus Mills, Inc. v. Hein, 399 S.W.2d 950 (Tex.Civ.App.-Houston, 1966, writ ref’d n. r. e.). This, Merrifield attempted to do by proving he had sold out the business before the accounts sued upon were delivered and accepted. The jury did not choose to believe him, and the assumed name records showing him as owner, the failure to collect for the sale either of the building or the other property, and his statement concerning the business to the effect that, “It ain’t being run, / have got it locked up,” furnished some probative evidence that the purported sale was not legitimate. (Emphasis added). So, delivery and acceptance of the goods, wares and merchandise by the company was delivery to Merrifield and implied a promise to pay. Love v. Doak & Tims, supra.

Appellant admits by brief that his Point 9 encompasses all of his previous points, so it would be repetitious for us to discuss it.

Judgment of the trial court is affirmed.


text:
    Patricia M. COX, a widow, Individually and as Executrix of the Will of Donald G. Cox, Deceased, Appellant, v. The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, Appellee.
    No. 5900.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 4, 1967.
    Rehearing Denied Nov. 1, 1967.

      Doyle Gaither, Wellington Chew, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, Charles R. Jones, El Paso, for appellee.
   OPINION

CLAYTON, Justice.

This is a suit to recover under an insurance policy issued by appellee, defendant below, on the life of Donald G. Cox, deceased, filed by his widow, appellant Patricia M. Cox, Individually and as Executrix under the Will of the Deceased. Trial was to a jury which found all issues favorably to appellee and on which verdict judgment was rendered for the insurance company. Appellant gave notice of appeal and filed her affidavit in forma pauperis in lieu of cost bond, which was contested by appel-lee and such contest sustained by the court. The appeal comes to us, however, on the Transcript and an Agreed Statement of Facts.

The appellant presents five points of error. Nos. I and II relate to the court’s having overruled her special exception to Paragraph II of appellee’s Amended Original Answer in which appellee states that the application for the insurance is a part of the contract of insurance and a condition precedent to the contract of insurance, that the insured was to be in “good health” at the time of the delivery of the policy, which application appellee states was attached to the answer as “Exhibit A”. The Agreed Statement of Facts stipulates that appellee was allowed to read this paragraph to the jury, over the exception of appellant, and presented no evidence as to whether the application was attached to the policy at the time of its issuance, nor was it attached to the policy when the policy was introduced by appellant, the only evidence on the point being that of appellant that the policy was in the same condition as when received by her from the Military Police shortly after the death of her husband. Nevertheless, Point of Error No. II relates that appellee was allowed to introduce the application in evidence over appellant’s timely objection. The jury found in answer to Special Issue No. 1, that the deceased was not in sound health on October S, 1964, the date the policy was issued, and, in answer to Special Issue No. 2, that the deceased answered “No” in the application, that he had not consulted or been treated by a doctor, other practitioner, or dispensary or clinic within the past five years. Also, in answer to Special Issues Nos. 3 through 8, that he answered “No”, as to whether or not he had been treated for high blood pressure; that these answers to Special Issues 2 and 3 were false; they were given for the purpose of inducing the insurance company to issue the policy; they were relied upon by the company, which would not have issued the policy had the true physical condition of applicant been known to it; and that no money was due to compensate appellant’s attorney for services rendered appellant. Appellant claims that these jury findings were influenced by introduction of the application.

As to the introduction of the application for insurance, the stipulated Statement of Facts provides:

“V.
“There was sufficient evidence of probative weight and value to support the jury’s finding to Special Issue No. 1 as contained in the Court’s charge and the Judgment of the Court to the effect that the deceased, Donald G. Cox, was not of sound health at the time of the issuance of the insurance in question and such evidence was wholly unrelated to the application or any extrinsic evidence relating to that application. Prior medical records of the deceased, Donald G. Cox, from William Beaumont Hospital, covering a period of time of one year prior to the death of the decedent, Donald G. Cox, was properly introduced into evidence and the defense witness, Dr. Ralph Homan read and interpreted such medical and hospital reports on the witness stand and testified that the condition reflected by those reports and records was a serious physical condition known as high blood pressure; which was in its advanced stages; and which, in the doctor’s opinion, was of a substantial nature and materially affected the general healthfulness and soundness of the deceased. In the doctor’s opinion, the deceased, Donald G. Cox, was not in good health or in sound health at the time the policy was issued. The doctor further testified that the condition was an increasing abnormality which had become substantially worse within a few months prior to the issuance of the contract of insurance in question and which would continue to be an abnormality. The condition was not known by the insurer at the time of or prior to the issuance of the policy of insurance in question.
“Defense witnesses Dr. Ralph Homan, C. H. Bar and the Plaintiff’s witness, Mr. Merance, testified to facts which establish that the condition of the decedent, Donald G. Cox, prior to the issuance of the contract of insurance in question, substantially increased the risk to be assumed by the insurer.
“Pursuant to the evidence introduced in this case, the jury could have believed and answered Question No. 1 in the Court’s charge as they did, upon a preponderance of the evidence in this case, without consideration of any evidence relating to the application or the application itself.
“The policy of insurance in question was introduced into evidence in this case by the Plaintiff and contained, among other things, a provision to the effect that the life to be insured had to be sound health on the date of the issuance of the contract of insurance or, otherwise, the contract of insurance would be void and of no force and effect.”

As to the law on the matter of introduction of the application for insurance, appellant cites us to Article 21.24, V.A.T.R. C.S., Insurance Code, providing:

“Every policy of insurance issued or delivered within this State by any life insurance company doing business within this State shall contain the entire contract between the parties, and the application therefor may be made a part thereof. Acts 1951, 52nd Leg., ch. 491.”

and to National Life & Accident Ins. Co. v. Love, 282 S.W. 829 (Tex.Civ.App., 1926; wr.dism.) in which the appeals court says:

“ * * * Neither the application for said policy nor any of the questions asked and answers given thereto in reference to her physical condition were indorsed upon said policy or attached thereto, as required by statute, and, this being true, neither of said instruments was any part of the insurance contract, and neither was admissible for any purpose.” (Citing cases).

Also, Harris v. Allstate Insurance Company, 249 S.W.2d 669, 671 (Tex.Civ.App., 1952; ref.), reciting:

“No written, photographic or printed copy of the application, nor a copy of the questions asked and answers given thereto, were attached to the policy, and, therefore could form no part of the insurance policy and was not admissible in evidence.” (Citing cases). “Notwithstanding the admission of the application in evidence and the submission of several issues in the charge based upon the application, the trial court in its judgment states: ‘the court having fully considered such verdict of the jury is of the opinion and finds that Special Issues Nos. 3, 6, 8 and 9 and the answers of the jury thereto are irrelevant and immaterial in that the written application inquired about in said issues was not attached to and made a part of said policy of insurance and by reason thereof the false and fraudulent statements contained in said application cannot be relied upon by the defendant to avoid such policy.’ The above portion of the judgment shows that the trial court disregarded the issues in the charge and the answers thereto, based upon the application for the insurance and is tantamount to striking all the evidences in reference to the application admitted over appellants’ objection. This action in our opinion renders harmless the error in admitting the application in evidence. The above points are overruled.”

Appellee admits that the evidence failed to establish that the application was attached to the insurance policy at the time of the issuance of the policy or at the time of the trial, but asserts that the application contained misrepresentations of material facts on which it relied in issuing the policy, as shown by the application itself and extrinsic evidence, and thus the application became admissible, not as evidence of the contractual terms but of the fraud. Ap-pellee relies upon the Commission of Appeals, approved opinion, in First Texas Prudential Ins. Co. v. Pedigo, 50 S.W.2d 1091, 1092 (1932), holding:

“ * * * These two statutes, as originally passed in the year 1909, constituted a part of the same act. Construing these statutes together, it appears that the legislature intended to require that the written instrument issued to the insured contain all the terms of the contract between the parties, whether such written instrument be made up of the policy alone, or of the policy and the application. The statutes clearly imply a denial of any contractual force to the provisions of the application, unless the application, or a copy thereof, actually accompany the policy as a part of it. This, of course, comprehends all purported warranties which the application contains. A representation, however, which is made by the insured to the insurer, and upon which the latter relies in entering into the contract, is not contractual but is collateral to the contract. It simply induces the contract. 32 C.J. 1273 ; 2 Cooley’s Briefs on Insurance, 1128. Nothing is found in the language of these statutes to justify the conclusion that the Legislature intended to render unavailable to the insurer, as a basis for defense, any false representation contained in the application, unless the application accompany the policy as a part of it.”
⅜ ⅜ ⅜ Jji ⅜ ⅜
“ * * * Article 5045 of the statute provides that: ‘No recovery upon any life, accident or health insurance policy shall ever be defeated because of any misrepresentation in the application which is of an immaterial fact and which does not affect the risks assumed.’ This implies that a recovery on a life policy can be defeated because of a misrepresentation contained in the application, which is material and affects the risks assumed.”

Furthermore, the policy itself provides : “This policy shall take effect on the Date of Issue, provided the Insured is then alive and in sound health, but not otherwise.” In the Agreed Statement of Facts, Dr. Ralph Homan testified that in his opinion the deceased “was not in good health or in sound health at the time the policy was issued” and this was asserted by ap-pellee as an additional ground of defense to the liability under the policy. Lincoln Income Life Insurance Company v. Mayberry, 162 Tex. 492, 347 S.W.2d 598, 599 (1961); American Nat. Ins. Co. v. Lawson, 133 Tex. 146, 127 S.W.2d 294 (Tex.Com. App. adopted opinion 1939). Based on these authorities and the Agreed Statement of Facts, we feel no fundamental error was committed by the court in overruling the Special Exception of appellant or admitting the application in evidence, and Points of Error Nos. I and II are overruled.

Point of Error No. Ill charges error in granting appellee’s special exception to paragraph IV of appellant’s original petition. Appellee calls to our attention that this ground of error is not specified in the appellant’s Motion for New Trial in accordance with Rule 320 (also Rule 374), Texas Rules of Civil Procedure, and thus cannot be considered here. We believe this to be true after careful examination of the record, and on authority of Missouri Pacific Railroad Co. v. Ramirez, 326 S.W.2d 50, 56 (Tex.Civ.App., 1959; ref., n.r.e.). We therefore overrule Point of Error No. III.

Point of Error No. IV relates to the refusal of the trial court to submit the appellant’s requested special issue, which was a requested definition of “sound health”. A definition of sound health is contained in the Texas Supreme Court case of Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901, 905 (1966), in which Chief Justice Calvert states:

“An insurance policy requirement that an applicant for insurance be in ‘good health’ does not mean ‘perfect health.’ If it did, all policies could be canceled within the contestable period. It is for this reason that the courts have evolved certain standards for measuring ‘good health.’ The term is usually defined as a state of health free from any disease or bodily infirmity of a substantial nature which affects the general soundness and healthfulness of the system seriously or materially increases the risk to be assumed by the insurer.” (Citing cases).

The trial court substantially tracks this language in the definition given, and we overrule this Point of Error No. IV.

In Point of Error No. V appellant complains of the refusal by the court to grant appellant’s pauper’s oath filed under Rule 355, T.R.C.P. This request to submit an affidavit in lieu of cost bond for appeal was contested by appellee and refused by the court. In the event of a contest the allegations in the affidavit must be proved by the applicant, appellant here, (King v. Payne, 156 Tex. 105, 292 S.W.2d 331, 1956), showing an inability to pay costs or obtain security therefor. This the appellant did not prove, but in any event she finally obtained a surety bond signed by her attorneys on leave of the court. We feel we must overrule Point of Error No. V.

Having considered and disposed of all of appellant’s points of error and finding no error, the judgment of the trial court is in all things affirmed.


author: COLEMAN, Justice.

text:
    The KROGER COMPANY et al., Appellants, v. Margie WARREN et vir, Appellees.
    No. 15114.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Oct. 19, 1967.

      William Key Wilde, Houston, Bracewell & Patterson, Houston, of counsel, for appellants Sam Morrow and The Kroger Co.
    Daugherty, Bruner, Lastelick & Anderson, Jerry Lastelick, Dallas, for appellants Delbert Clymer and Hopper & Hawkins, Inc.
    Kenneth Bing, Freeport, Miller, Gann, Perdue & Werner, John C. Werner, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from an order overruling the pleas of privilege filed in a suit for damages by reason of assault and battery and false imprisonment. The principal question is whether Sam Morrow, an employee of The Kroger Company, and Delbert Clymer, an employee of Hopper & Hawkins, Inc., committed a crime or offense in the course of their employment while in Brazoria County, Texas, so as to sustain venue in that county under Section 9 of Article 1995, Vernon’s Ann.Civ.St.

The Kroger Company is the owner of a retail grocery store located in Freeport, Brazoria County, Texas. Mrs. Margie Warren was employed by that company as a grocery checker or clerk. Hopper & Hawkins, Inc., is a company engaged in checking on employees of various stores for the purpose of rating or grading their efficiency and of checking on the possibility of the misappropriation of company funds. This company had contracted to furnish these services to The Kroger Company and had been performing security checks or surveys for Henke & Pillot and its owner, The Kroger Company, for six or seven years.

Sometime prior to March 31, 1964, a representative of Hopper & Hawkins, Inc., had checked the Freeport store and in so doing had made certain purchases. The purchases were checked out through the register operated by Mrs. Warren. The purchases were turned over to Delbert Clymer and the agent reported that he suspected that a $1.00 item was not rung up on the cash register. Clymer was directed to return the purchases to Sam Morrow, a security officer for The Kroger Company, and to check up on the report. Clymer asked Morrow to check the purchases against the cash register tape. After the tape was checked, Morrow and Clymer decided to question Mrs. Warren and certain other employees of the Freeport store who were suspected of failing to ring up all purchases.

On March 31, 1964, Morrow and Clymer went together to Freeport. Morrow introduced the manager of the store to Clymer and told him that they wanted to question some of the employees. The manager took them to a small, windowless conference room at the back of the store, and, at Morrow’s request, he brought Mrs. Warren to the room for questioning.

Mrs. Warren testified that they accused her of taking $1.00 on the occasion of the agent’s visit and continued to question her about the number of other times she had taken money. They were trying to get her to write a letter admitting taking money and estimating the amount taken. She testified that Clymer did most of the talking, but that both of them threatened to call the police if she did not write the letter. Morrow also told her that her “family would be exposed in such a way that it would be to my embarrassment.” On several occasions she asked to be permitted to leave the room, but Clymer told her she could not go. She was afraid and was crying. When Morrow threatened to call the police, she was agreeable. She offered to call the police herself because she wanted to get out of the room. After about an hour and a half, Morrow left the room and she then tried to leave, but Clymer caught her by the arm and prevented her leaving. Finally she wrote a letter at Clymer’s dictation, except for the amount of money taken, and then was permitted to leave. She testified that she did not take any money from her employer. The president of Hopper & Hawkins, Inc., testified that on this occasion it was Clymer’s duty to do whatever business was supposed to be done with The Kroger Company.

The testimony with respect to what happened during the questioning was contradicted by the testimony of the defendants. Other testimony which Mrs. Warren gave was weakened or destroyed by the testimony she gave after being confronted by her previous deposition.

The trial court found that Clymer and Morrow were acting in the course and scope of employment and that Hopper & Hawkins, Inc. at all times material hereto was acting as an agent and representative of The Kroger Company. He found that Clymer told Mrs. Warren that unless she signed a statement to the effect that she had stolen money from The Kroger Company, he would call the police and have her arrested and placed in jail. He found that Clymer told Mrs. Warren that they would not permit her to leave the room where the interrogation was being conducted until she signed the statement, and that when she attempted to leave she was physically restrained by Clymer. He found that she signed the statement admitting taking the money because of the threats and abuse to which she had been subjected, in order that she would be permitted to leave the room, and that the statement was untrue. He found that as a result of the treatment she received, Mrs. Warren suffered physical pain and mental anguish.

The trial court concluded as a matter of law, based on his findings of fact that a crime or offense had been committed against appellee by all of appellants in Brazoria County, Texas. He further concluded that venue should be held in that county as to Sam .Morrow by virtue of Section 9, Article 1995, R.C.S., as to The Kroger Company by virtue of Sections 9, 23, and 27 of Article 1995, R.C.S., and as to Hopper & Hawkins, Inc., by virtue of Sections 9 and 23, Article 1995, R.C.S.

While the trial court is not required to file findings of fact and conclusions of law in an appeal from his ruling on a plea of privilege, he is authorized to do so at the request of either party by Rules 385(e) and 296, Texas Rules of Civil Procedure. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1954).

In Compton v. Elliot, 126 Tex. 232, 88 S.W.2d 91 (Tex.Com.App. 1935, opinion adopted), the court said: “On appeal from a judgment sustaining or overruling a plea of privilege, the power of the Court of Civil Appeals in reviewing the fact findings made by the trial court is the same as it is in any other appealed case.”

The findings of fact filed by the trial court are not conclusive on appeal when a statement of facts appears in the record. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156 (1950). It is necessary, however, that material findings of fact be challenged by appropriate points in appellants’ brief or else the appellants are bound by the findings of fact. Waters v. King, 353 S.W.2d 326 (Tex.Civ.App., Dallas 1961); Ferrier v. Caprock Machinery Company, 350 S.W.2d 224 (Tex.Civ.App., Amarillo 1961); Thompson v. Larry Lightner, Inc., 230 S.W.2d 831 (Tex.Civ.App., San Antonio 1950, ref., n. r. e.).

There is no point in the brief filed by either of the appellants challenging any of the findings of the court to be without support in the evidence, or to be against the preponderance of the evidence. A detailed discussion of the evidence as applied to the fact findings, therefore, is not required. Downs v. McCampbell, 203 S.W.2d 302 (Tex.Civ.App., Austin 1947).

While the trial court concluded as a matter of law that venue should be held in Brazoria County as to Sam Morrow by reason of Section 9 of Article 1995, R.C.S., no specific finding of fact presented a basis for this conclusion. The court found that Morrow and Clymer interrogated Mrs. Warren for about three hours and falsely accused her of stealing money from her employer; that during the interrogation Clymer told her that she would not be permitted to leave the room until she signed a statement admitting theft; that Clymer told her that unless she signed the statement she would be arrested and placed in jail; and that Clymer forcibly restrained Mrs. Warren from leaving the room. The trial court’s conclusion that these acts amounted to the commission of false imprisonment and assault and battery against Mrs. Warren on the part of all of the defendants is also a finding of fact. Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687 (Tex.Civ.App., Ft. Worth, 1964, ref., n. r. e.).

We are required not only to give effect to the findings as made, but also to presume omitted findings to support the judgment, if such findings are supported by the evidence. Collins v. Tucker, 333 S.W.2d 218 (Tex.Civ.App., Ft. Worth 1960); Waters v. Yockey, 193 S.W.2d 575 (Tex.Civ.App., Dallas 1946).

Articles 65 and 66, Vernon’s Ann.P.C., provide that all persons are principals who are guilty of acting together in the commission of an offense; that when an offense is actually committed by one or more persons, but others are present and, knowing the illegal intent, aid by acts or encourage by words or gestures those actually engaged in the commission of the unlawful act, such persons so aiding or encouraging are principal offenders. Lee v. State, 214 S.W.2d 619 (Tex.Crim.App., 1948). See also Francis v. Kane, 246 S.W.2d 279 (Tex.Civ.App., Amarillo 1951).

The asserted elements of the offense of false imprisonment are said to be: (1) a wilful detention of the person, (2) a detention without authority of law, and (3) a detention against the consent of the party detained. 25 Tex.Jur.2d, False Imprisonment, § 3.

A detention is unlawful if it prevents a person from moving from place to place or in the direction he wishes to go. Where it is contended that the unlawful detention is brought about by a threat, it must be shown that the threat was such as would inspire in the threatened person a just fear of injury to his or another’s person, reputation, or property. 25 Tex.Jur. 2d, False Imprisonment, § 4.

The findings of the trial court clearly establish false imprisonment and assault and battery as against the defendant Clymer. The evidence is sufficient to support an implied finding that the defendant Morrow was acting with Clymer in wil-fully detaining appellee without authority of law and without her consent, and that he aided and encouraged him in so detaining Mrs. Warren.

The evidence shows that the actions taken in this case by Clymer and Morrow were taken as agents of their respective companies and in the furtherance of company business committed to them. The Kroger Company is bound by the actions of their employee Morrow, and Hopper & Hawkins, Inc. is responsible for the actions of its employee Clymer. Magnolia Petroleum Co. v. Guffey, 129 Tex. 293, 102 S.W.2d 408 (Tex.Com.App., 1937, opinion adopted); Rucker v. Barker, 108 Tex. 280, 192 S.W. 528 (Tex.Sup.1917).

The judgment is affirmed.


author: TUNKS, Chief Justice.

text:
    Rejonah LEE, Appellant, v. UNIVERSAL LIFE INSURANCE COMPANY, Appellee.
    No. 5.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Oct. 18, 1967.
    Rehearing Denied Nov. 8, 1967.

      Dent & Cashin, Galveston, and Herschel B. Cashin, LaMarque, for appellant.
    W. J. Durham, Dallas, for appellee.
   TUNKS, Chief Justice.

On May 27, 1963, appellee issued a life insurance policy in the face amount of $480.00 on the life of Clara Walker. Appellant, Rejonah Lee, was named beneficiary in such policy. So far as the record indicates, premiums were timely paid on the policy until Clara Walker’s death on January 20, 1964.

The policy of insurance, so issued by appellee, contained the following two provisions which are relevant to this litigation:

“Preliminary provisions — no liability, except that return of all premiums paid hereon, is assumed by the company prior to 12:00 o’clock noon, Central Standard Time, of the date hereof, unless at said time and date, the proposed insured is alive and in sound health.”
“Incontestability — this policy shall be incontestable after two full years from the date of issue, except for non-payment of premiums, and except as to provisions and conditions relating to total and permanent disability benefits.”

At no time within two years from the date of the issuance of the policy did appellee institute any proceeding to cancel the policy or otherwise contest its liability for the face amount of the policy.

Appellant, beneficiary, did not file suit on the policy until the 24th day of June, 1965. Defendant’s original answer was filed on the 19th day of July, 1965. In its said answer, appellee alleged that it was not liable for the amount of the policy because of the fact that the insured, Clara Walker, was not of sound health at the time of the issuance of the policy, that is to say, on May 27, 1963.

In response to special issues, the jury found that the reasonable fee for the services of plaintiff’s attorneys, through the trial in the District Court, was $727.50; that the reasonable additional fee for the services of the plaintiff’s attorneys in the event of an appeal to the Court of Civil Appeals would be $679.25; that a reasonable additional fee for the services of plaintiff’s attorneys in the event of further proceedings in the Supreme Court would be $654.25, and that the insured, Clara Walker, was not a person of sound health on May 27, 1963, the date of the issuance of the policy in question.

After the jury’s verdict was returned,, both parties made motions for judgment. The plaintiff’s motion is designated merely a “Plaintiff’s Motion for Judgment.” We think it, however, susceptible of construction as a motion to disregard the jury’s finding concerning the state of the health of the insured as of the date of the issuance of the policy and for judgment in her favor on the rest of the verdict.

Appellee’s motion in the court below was designated a motion for judgment non obstante veredicto. We think it, however, susceptible of construction as a motion to disregard the jury’s findings concerning attorney’s fees and to enter judgment in its behalf on the jury’s finding concerning the state of the health of the insured as of the date of the issuance of the insurance policy.

The trial court sustained a motion of the appellee and rendered judgment that appellant, plaintiff below, take nothing. From that judgment, appeal has been perfected.

The appellant’s two points of error are to the effect that the trial court erred in admitting evidence concerning the state of the health of the insured as of the date of the issuance of the policy, and to the effect that the trial court erred in overruling her motion for judgment and to disregard the jury’s finding concerning the status of the health of the insured.

Obviously, if the position taken by the appellee in the court below be considered a contest within the terms of the above quoted incontestability clause set forth in the policy, and if that clause is to be given its literal effect, then the beneficiary was entitled to recover on the policy. The appel-lee contends, however, that its allegations concerning the ill health of the insured as of the date of the issuance of the policy, are not a “contest” of the policy within the terms of the clause; that the good health of the insured as of the date of the issuance of the policy was a condition precedent to the policy’s becoming effective; that because of her ill health, that condition precedent was never met and that there is no policy to contest. It says, rather, that since the condition precedent to the effectiveness of the policy was not met, that the only contractual arrangement between the parties was one to the effect that the insurance company should repay the premiums paid by the insured; that, therefore, the position taken by it and its pleadings is consistent with the terms of the contract between the parties rather than a contest thereof.

It is true that in American National Insurance Company v. Lawson, 133 Tex. 146, 127 S.W.2d 294 (Tex.Commission of Appeals), it is held that a provision in an insurance policy in language quite similar to that above quoted as “preliminary provisions” set forth conditions precedent.

It is also held in Guardian Life Ins. Co. v. Galoostian, Tex.Civ.App., 155 S.W.2d 396, ref. w. o. m., that such a denial of the occurrence of the condition precedent as here made by appellee, is not a “contest” within, the terms of the contestable clause required by Article 3.44, Sec. 3, V.A.T.S. Insurance Code. We are of the opinion, however, on the basis of the following authorities, that the great weight of authority in this state is to the effect that the defense asserted by the appellee in the court below constitutes a “contest” within the terms of such incontestable clause: National Life Underwriters v. Williams, Tex.Civ.App., 197 S.W.2d 487, err. ref.; Reserve Loan Life Ins. Co. of Texas v. Brown, Tex.Civ.App., 159 S.W.2d 179, err. ref.; Reliable Life Ins. Co. v. Wyatt, Tex.Civ.App., 154 S.W.2d 288, err. dism’d.

As of the date of the issuance of the policy here in question, Vernon’s Annotated Texas Statutes, Insurance Code, Article 3.44, contains the following provisions:

“No policy of life insurance shall be issued or delivered in this State, or be issued by a life insurance company organized under the laws of this State, unless the same shall contain provisions substantially as follows: * * * (3) That the policy, or policy and application, shall constitute the entire contract between the parties and shall be incontestable not later than two years from its date, except for non-payment of premiums ; and which provision may or may not, at the option of the company, contain an exception for violations of the conditions of the policy relating to naval and military services in time of war.”

Effective 90 days after May 24, 1963, the above quoted language of Article 3.44, Section 3 of the Insurance Code was amended to read as follows:

“That the policy, or policy and application, shall constitute the entire contract between the parties and shall be incontestable after it has been in force during the lifetime of the insured for two (2) years from its date, except for non-payment of premiums, and which provisions may, at the option of the company, contain an exception for violation of the conditions of the policy relating to naval and military service in time of war. As amended Acts 1963, 58th Leg., p. 1307, ch. 498, § 1.”

Appellee contends that the incontestable clause set forth in Section 3 of Article 3.44 of the Insurance Code is in the nature of a statute of limitations and that the amended incontestable clause which became effective in August, 1963, after the issuance of the policy here in question, should be given a retroactive effect so as to control a beneficiary’s right to recover on that policy. If such a construction were given to the change in the statute, the contest asserted by appellee would not be barred because the policy was not in force during the lifetime of the insured for two years from its date.

If such construction were tenable, that is to say, if these statutes were to be construed as simply limitations statutes, and nothing else, the statute as amended in August, 1963, might well control suits maintained on policies issued prior to the date of the enactment of the statute. Limitation statutes are remedial, and the change of remedies available under contracts in existence does not necessarily violate the constitutional prohibition against the impairment of contractual rights. Voigt v. Gulf, W. T. & P. R. Co., 94 Tex. 357, 60 S.W. 658; Williams v. Reed, Tex.Civ.App., 160 S.W.2d 316, ref., w. o. m.; Wells v. Smith, Tex.Civ.App., 144 S.W.2d 430, err. dism’d., judgm. con.; Farmers’ Life Ins. Co. v. Wolters, 10 S.W.2d 698 (Tex.Com.App.).

The position taken by appellee would have been well taken if Section 3 of Article 3.44, as it read at the date of the issuance of the policy, had simply provided that no contest of the policy could be made more than two years after the date of the issuance and if Section 3 as amended had simply provided that no contest of the policy could be made after the policy had been in force during the lifetime of the insured for a period of two years. That, however, is not what Section 3 of Article 3.44 provided. That section provided that an agreement to the effect that no contest should be asserted after the statutory periods of time should be included within the contract itself. Therefore, we are not here concerned with a simple statute of limitations. We are concerned with a statute by which the legislature, in implementing the public policy, requires insurance companies to put incontestable clauses in their policies in accordance with statutory requirements, that is to say, a statute requiring certain contractual provisions to be included in insurance policies.

Article 1, Section 16 of the Constitution of the State of Texas, Vernon’s Ann.St., provides:

“No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”

Article 1, Section 10 of the Constitution of the United States contains a similar prohibition against the State’s enactment of a law impairing the obligation of contracts. We think that to construe the amendment of Section 3, Article 3.44 of the Insurance Code as changing the incontestability clause of the insurance policy here in question, would be in direct violation of those constitutional prohibitions.

The case of Farmers’ Life Insurance Co. v. Wolters, supra, cited by appellee as authority for its proposition, involved a question as to whether or not an amendment to a limitation statute, shortening the time within which a sale might be made under a deed of trust from ten to four years from the maturity of the debt secured, was constitutional.

The court held that the amendment of the limitation statute, under the circumstances of that particular case, was not in violation of the constitutional prohibition against the impairment of the obligations of contract. The court noted, however, that the parties themselves had not contracted as to the period of time within which a sale under the deed of trust could be made. The court said, “If the contract in controversy had stipulated that the holder should have ten years within which to have a sale, there would be a different question presented.”

Retroactive statutes are generally regarded with disfavor by the courts of Texas. Hutchings v. Slemons, 141 Tex. 448, 174 S.W.2d 487, 148 A.L.R. 1320. This is true even when the statute does not violate any constitutional provision, unless it is plain that the legislature so intended. Government Personnel Mut. Life Ins. Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525; Galveston, H. & S. A. Ry. Co. v. Wurzbach, Tex.Civ.App., 189 S.W. 1006.

In the construction of an insurance policy it is the law in effect at the date of its issuance that is controlling. American Nat. Ins. Co. v. O’Dell, Tex.Civ.App., 232 S.W.2d 238, ref., n. r. e.; 12 Appleman, Insurance Law and Practice, Sec. 7041; 44 C.J.S. Insurance § 50, p. 502.

We therefore hold that the defense here asserted by the appellee, to the effect that it is not liable on its policy because the insured was in ill health at the date of the issuance of the policy, is a “contest” within the terms of the incontestability clause contained within the policy itself. We further hold that the issuance of the policy in question containing the quoted incontestability clause established a contractual relationship between the insured and the insurer, which contractual relationship was not changed by the subsequent amendment of Section 3 of Article 3.44 of the Insurance Code, by which amendment it was required that life insurance policies should contain an incontestable clause in different language. That amendment was not retroactive so as to change the contract between the parties here.

The jury’s findings as to attorney’s fees are not challenged by any cross assignments of appellee. Findings in the form made by the jury in the court below have been approved. Central States Life Insurance Co. v. Byrnes, Tex.Civ.App., 375 S.W.2d 330, ref., n. r. e.; Grimes v. Robitaille, Tex.Civ.App., 288 S.W.2d 211, err. ref., n. r. e.

The judgment of the trial court is reversed and judgment is here rendered that the appellant recover from appellee the face amount of the policy ($480.00) plus statutory penalty of 12% thereof in the amount of $57.60, together with interest on said items from the date of the insured’s death (January 20, 1964) and that appellant further recover attorney’s fees in the amount of $1,406.75, representing the attorney’s fees for the trial in the District Court and the Court of Civil Appeals as found by the jury, together with interest on that sum at the rate of 6% per annum, and further, that appellant recover an additional sum of $654.25 as attorney’s fees in the event of further proceedings in the Supreme Court of Texas.


author: MASSEY, Chief Justice.

text:
    T. C. MEEK, Appellant, v. H & N MACHINING INC., Appellee.
    No. 16860.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 20, 1967.

      Elvin E. Tackett and Nathaniel J. Har-ben, Fort Worth, for appellant.
    Hooper, Steves & Kerry, and Winfred Hooper, Jr., Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Suit by T. C. Meek, as plaintiff, was for contractual consideration by an independent contractor under a five year written contract with defendant H & N Machining Inc. Trial was before a jury, and based thereon, and the trial court’s statement, viz: “having made such other and further findings as necessary to support this verdict”, a take nothing judgment was rendered from which plaintiff perfected an appeal.

Affirmed.

Plaintiff’s first three points of error are related to the action of the trial court in overruling his exceptions to pleadings set up in the defendant’s answer and permitting testimony on trial of oral agreements made. In substance the defendant plead that during the period of plaintiff’s performance under the written contract, and relating thereto, there were oral agreements which amounted to partial recission of provisions of the written contract or to individual transactions outside its provisions. The defendant contended that as result its obligation of performance under the oral agreements as applied to certain activities of the plaintiff did not obligate it to perform under the prior written contract.

Plaintiff’s theory was that the original contract was within the Statute of Frauds and could not be modified or varied other than by a written instrument, and that evidence of oral agreements purporting to do so was inadmissible.

Assuming the original contract to be within the Statute, we believe the proper rule is stated in Restatement of the Law, Contracts, Ch. 8, “The Statute of Frauds”, Topic 9, “Recission or Variation of Contracts Within the Statute”, § 222, “Oral Recission of a Contract Within the Statute”, as follows: “A contract within the Statute, whether or not made enforceable by satisfaction of its requirements, may be orally rescinded, unless the prior contract is enforceable and the contract to rescind involves the re-transfer of some subject-matter which is within the Statute.”

The written contract concerned opportunity to acquire and perform work and accomplish sale of manufactured articles to Bell Helicopter Company. In this connection it is to be noted that the plaintiff did not have an “exclusive” contract for work so acquired and performed, nor was the defendant obliged to fill orders promoted by plaintiff. Through plaintiff’s efforts defendant was afforded opportunity to bid upon supplying work or. articles to Bell Helicopter with provision that if it did do so and obtained the contract to so supply work or articles a 10% commission would be due and payable by defendant to plaintiff.

It was the defendant’s theory that in the normal instance, generally when it was only machine shop work not involving the purchase and integration of materials supplied by the defendant into the product moving from the defendant’s plant to Bell Helicopter Company, the 10% commission was paid. However, as plead by defendant, there arose occasions when through plaintiff’s efforts opportunity was afforded to perform work and accomplish sale of articles to Bell Helicopter Company which it did not desire to contract to supply at the price necessary to enable it to get the business if obliged to pay a commission of 10%, particularly in instances where defendant had to buy and incorporate materials into finished products supplied to Bell Helicopter Company. In general, under defendant’s theory and pleadings, the plaintiff induced it to proceed and so contract on these occasions so that the business was obtained and the, work performed in consequence of contemporaneous oral agreements that the commission payable to plaintiff thereon would be 5%. In answer to special issues submitted on behalf of the defendant after evidence was closed, the jury found that such was what did occur.

Neither the Parol Evidence Rule nor the Statute of Frauds rendered defendant’s pleadings and evidence improper whether the original contract did or not fall within the Statute of Frauds. Under the circumstances of the case we believe ambiguities in the contract, coupled with circumstances shown, were such that the trial court properly agreed that in these instances where 5% commissions were orally agreed upon they could be treated as outside the Statute and as independent and separate contracts, apart from the original, and not as a subsequent modification thereof. Furthermore, under the circumstances of the case, it is our opinion that even though the Statute be treated as applicable, oral agreements of the nature under consideration are proper and enforceable where the permission to pay 5% was given by the one party and the other, in reliance on the un-revoked oral agreement, materially changed his position. See the sections in the Restatement of the Law, Contracts, following § 222. See also 26 Tex.Jur.2d, p. 301, “Frauds, Statute of”, § 133, “Specific performance.”

Every special issue submitted to the jury was a “defendant’s issue”. Ordinarily the plaintiff who seeks to recover in a case such as this carries the “laboring oar”, i. e., he is obliged to plead, prove, and persuade the jury to return special issue findings entitling him to recover as against the defendant “by a preponderance of the evidence”.

There are exceptions to this rule and the plaintiff, by five points of error, seeks to demonstrate that exception is applicable in this case. He says that under the undisputed evidence all Bell Helicopter Company’s purchase orders filled by the defendant prior to the termination of the contract were the result of his efforts and contacts, and that as of the time of termination defendant was processing such purchase orders and subsequently did complete them and received payment, but failed to pay the proper commission thereon to him. He says further that there was “no evidence” that the subsequently acquired Bell Helicopter Company business was procured by any means other than through his “contacts” with said company before termination and that there was “no evidence” that any particular sale and purchase transaction with said company was otherwise procured.

Our examination of the record does not lead us to the conclusion that plaintiff is correct in either of the matters claimed to have been “indisputably established” (so as to relieve him of the duty to have special issues submitted where he might obtain favorable findings by a preponderance of the evidence). There was certainly no admission by defendant in said respect. Plaintiff was not relieved of the burden to present his case to the jury. Furthermore it was no part of the burden of the defendant to prove that it obtained any Bell Helicopter Company business (whether before or after its termination of contractual relationships with plaintiff) by means other than through efforts or “contacts” with plaintiff.

It is true that there was work in defendant’s shop, as of the time of contractual termination, as to which the evidence perhaps could justify holding that some amount of commission was due plaintiff out of the compensation subsequently paid defendant by Bell Helicopter. However, the amount thereof was not established in the proof adduced on trial. Applicable proof merely related to the earnings of defendant through business done with Bell Helicopter Company from the “termination” date of June 10, 1964 to and inclusive of December, 1965, a period during which additional work under new contracts was performed by defendant for Bell Helicopter Company.

The “take nothing” judgment rendered by the trial court was correct because the plaintiff failed to obtain special issue findings establishing right to commissions other than those actually paid.

Judgment is affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    William A. COCKRUM, Appellant, v. TRAVELERS INDEMNITY COMPANY, Appellee.
    No. 16973.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 29, 1967.
    Rehearing Denied Oct. 27, 1967.

      Marvin Menaker, Dallas, for appellant.
    John A. Gilliam, of Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

This is an appeal by William A. Cock-rum from a take nothing summary judgment in favor of Travelers Indemnity Company in a suit filed by Cockrum to recover medical payments under a family automobile insurance policy. The facts were not in dispute and both parties filed a motion for summary judgment. The sole question presented was the liability vel non of Travelers for the payment of medical payment insurance under the automobile policy. The trial court found that as a matter of law there was no liability and granted appellee’s motion for summary judgment.

FACTS

On February 9, 1965 Travelers Indemnity Company issued its Family Automobile Policy (being a renewal of prior coverage) with William A. Cockrum as the named insured. This policy contained a schedule of coverage on three separate automobiles owned by Cockrum. Car No. 1 was a Cadillac, 1961 model, and was specifically insured for bodily injury liability; property damage liability; medical payments in the sum of $1,000; comprehensive liability; collision and towing. Each separate coverage bore a designated premium charge. Car No. 2 was a 1956 Cadillac and was insured for the same coverages with the exception of medical payments and collision. Car No. 3 was a 1961 Pontiac and was specifically insured against all losses except medical payments. It was undisputed that medical payment coverage was not requested for the No. 3 automobile and none was charged therefor. The policy contained the provision that:

“The absence of an entry in any premium space shall mean that such insurance is not afforded with respect to the particular automobile.”

On May 9, 1965, while the policy in question was in full force and effect, William A. Cockrum’s daughter, Barbara Jean, while driving the Pontiac automobile, being the No. 3 car described in the policy, was in collision with another automobile and, as a result of such accident, she was killed. The amount of the funeral expenses incurred as a result of the daughter’s death exceeded the sum of $1,000. It was conceded by the insurance company that if there was liability under the policy in question Cockrum would be entitled to recover the sum of $1,000, plus 12 per cent penalty in the amount of $120, and for reasonable attorney’s fees.

The material portions of the policy of insurance sued upon and which must control the issue of liability are as follows:

The term “owned automobile” means
“(a) a private passenger * * * automobile described in this policy for which a specific premium charge indicates that coverage is afforded, * * * 7?
⅜ ⅜ ⅜ ⅜ ⅜ ⅝
“PART II — Expenses for Medical Services.
“Coverage C — Medical Payments.
“To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services :
“Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’, caused by accident,
“(a) while occupying the owned automobile,
“(b) while occupying a non-owned automobile, but only if such person has, or reasonably believes he has, the permission of the owner to use the automobile and the use is within the scope of such permission, or
“(c) through being struck by an automobile or by a trailer of any type;
“Division 2. To or for any other person who sustains bodily injury, caused by accident, while occupying
“(a) the owned automobile, while being used by the named insured, by any resident of the same household or by any other person with the permission of the named insured; * *
“Definitions.
“The definitions under Part I apply to Part II, and under Part II: ‘occupying’ means in or upon or entering into or alighting from.
“Exclusions.
“This policy does not apply under Part II to bodily injury:
“(a) sustained while occupying (1) an owned automobile while used as a public or livery conveyance, or (2) any vehicle while located for use as a residence or premises;
“(b) sustained by the named insured or a relative while occupying or through being struck by (1) a farm type tractor or other equipment designed for use principally off public roads, while not upon public roads, or (2) a vehicle operated on rails or crawler-treads;
“(c) sustained by any person other than the named insured or a relative,
“(1) while such person is occupying a non-owned automobile while used as a public or livery conveyance, or
“(2) resulting from the maintenance or use of a non-owned automobile by such person while employed or otherwise engaged in the automobile business, or
“ (3) resulting from the maintenance or use of a non-owned automobile by such person while employed or otherwise engaged in any other business or occupation, unless the bodily injury results from the operation or occupancy of a private passenger automobile by the named insured or by his private chauffeur or domestic servant, or of a trailer used therewith or with an owned automobile;
“(d) sustained by any person who is employed in the automobile business, if the accident arises out of the operation thereof and if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law;
“(e) due to war.”
* * * * * *
“Conditions.
“3. Two or More Automobiles.
“Parts I, II and V
“When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, * *

OPINION

Appellant and appellee agree that the only question to be resolved by this appeal is one of law, i. e., whether the insurance contract sued upon imposes the legal obligation upon the part of appellee to pay benefits under the medical payment provision of the policy under the admitted facts presented in this record. Appellant, in his sole point of error, contends that since appellant’s daughter sustained injuries, which resulted in her death, which were caused by an accident through being struck by an automobile, that the terms of the insurance policy became effective. In support of his contention appellant relies upon the decision of this court in Hale v. Allstate Ins. Co. (Tex.Civ.App., Dallas 1961), 345 S.W.2d 346, and the opinion of the Supreme Court of Texas in answering a certified question, Hale v. Allstate Ins. Co., 162 Tex. 65, 344 S.W.2d 430 (1961). Appellant contends that the trial court erred in failing to sustain his motion for summary judgment as well as committing error in sustaining appellee’s motion.

Appellee, by appropriate counterpoints, takes the position that the trial court’s judgment was correct since at the time the accident occurred appellant’s daughter was driving the Pontiac automobile owned by appellant but which was expressly not insured under the medical payment provision of the policy. Appellee argues that since the parties had expressly contracted that no medical payment benefits would be provided on the Pontiac automobile, and no premium charges were, made for such coverage on such automobile, there can legally be no liability on appellee for the payment of such coverage. In support of its position appellee relies upon Vaughn v. Atlantic Ins. Co., 397 S.W.2d 874 (Tex.Civ.App., Tyler 1965, writ ref’d n. r. e.), and Gonzales v. Farmers Ins. Exchange, 399 S.W.2d 888 (Tex.Civ.App., Eastland 1966 writ ref’d n. r. e.). We are unable to agree with appellee that either of these cases is applicable under the factual situation here presented.

In Vaughn, supra, the insured had a policy of insurance upon each of two automobiles owned by him, one a Ford and the other a Chevrolet. While Vaughn, his wife and daughter, were driving the Ford automobile they were involved in a head-on collision in which Mrs. Vaughn was killed. The insurance company admitted liability on the medical coverage provision of the policy covering the Ford automobile and paid the same. Vaughn attempted to collect medical payment coverage on the Chevrolet automobile, which was not involved in the collision. The insurance policy in that case contained the express exclusion to the effect that medical payment provisions were not payable for bodily injury “sustained by the named insured or a relative (1) while occupying an automobile owned by or furnished for the regular use of either the named insured or any relative, other than an automobile defined as an ‘owned automobile’ ”.

The court in denying recovery, based its decision upon this specific exclusion, saying:

“The exclusionary clause here under consideration simply excludes any medical coverage to the insured or members of his family which were sustained while occupying another owned automobile other than an automobile described within the policy. It is without dispute that the Ford automobile involved in the accident in which appellant and his family were injured was owned by the appellant,, and it was not covered as an ‘owned automobile’ in the Chevrolet policy because it was not described therein and no premiums were paid thereon.”

In Gonzales, supra, the insurance company issued a family automobile policy to Gonzales covering a Dart automobile, with medical payment coverage, and a Pontiac automobile, with no medical payment coverage provided. During the policy period a 1954 Oldsmobile automobile was substituted for the Pontiac automobile. Gonzales and his wife were operating the Oldsmobile automobile when it was involved in the collision resulting in injuries and medical treatment. Action was brought to recover under the medical payment provisions of the policy. This policy contained a specific exclusion, as follows:

“This policy does not apply under PART II to bodily injury: * * * (b) sustained by the named insured or relative (1) while occupying an automobile owned by or furnished for the regular use of either the named or any relative, other than an automobile defined hereunder as an ‘owned automobile’ * *

The court in denying recovery under the medical payment provisions relied upon the exclusionary clause above recited.

In the case under consideration the policy of insurance is entirely devoid of an exclusionary clause similar to that contained in Vaughn and Gonzales. In the absence of such contractual exclusion we must look to the insuring provisions of the policy to determine if the same extend coverage under the factual situation here presented.

The policy must be regarded as being separate and distinct as to each of the three described automobiles, namely, the two Cadillacs and the Pontiac. When the policy is thus viewed we immediately arrive at the conclusion that there can be no liability for medical payment coverage as to the Pontiac for the simple reason that the parties expressly did not contract for such coverage to be applicable on this particular automobile. So, we then turn to a consideration of the liability of appellee company with reference to the terms of the policy which it issued to appellant and covering the 1961 Cadillac. Admittedly the insurance company extended medical payment coverage to this policy to the extent of $1,000. Under this policy the insurance company expressly agreed with appellant that it would pay benefits to him, and each relative who sustains bodily injury, including death resulting therefrom, caused by an accident “(a) while occupying the owned automobile * * * or (c) through being struck by an automobile * * (Emphasis supplied.)

Obviously the first insuring agreement relating to accidents which occur “while occupying the owned automobile” is not applicable since appellant’s daughter was not occupying the “owned automobile” which is defined as the passenger automobile described in the policy and for which a specific premium charge indicates that coverage is afforded. Such insuring agreement not being applicable we then proceed to the additional insuring agreement (c) which provides that the insurance company will pay medical payments to the insured, or relative, who sustains bodily injury, or death, caused by accident “through being struck by an automobile.”

Our Supreme Court in Hale v. Allstate Ins. Co., 162 Tex. 65, 344 S.W.2d 430 (1961), considered in great detail the two insuring agreements here under discussion. The insurance company in that case contended that “occupying an automobile” and “being struck by an automobile” are two separate and mutually exclusive coverages provided by the insurance policy. The Supreme Court expressly denied this contention, saying:

“We hold that the coverage in the Mercury policy for injuries received ‘while occupying an automobile’ and for injuries received from ‘being struck by an automobile’ are not mutually exclusive, but are overlapping coverages; * *

The contention was advanced in the Hale case that the second coverage “being struck by an automobile” was not applicable because the insured and his family in that case were injured while in an automobile and were not in actual physical contact with the other automobile involved in the collision. Justice Griffin, speaking for the Supreme Court, overruled this contention and held that under the applicable authorities both in Texas and elsewhere the phrase “being struck by an automobile” did not necessitate actual physical contact with the other vehicle in question in order to be applicable. The court said:

“We hold that plaintiff was ‘struck by an automobile’ within the meaning of that phrase in Endorsement No. 214 while riding in the Ford pickup which was in collision with another automobile and that the injuries received resulted from the striking by the Hulse automobile with the pickup.”

The Supreme Court concluded that the medical payment coverage extended to Hale under the provisions of the insuring agreement covering “being struck by an automobile” even though he was occupying a vehicle not expressly named in the insurance policy.

Following a careful analysis of the undisputed facts and their application to the specific terms and provisions of the insurance contract between the parties we are of the opinion, and so hold, that the decision of the Supreme Court in Hale, supra, is controlling and that the policy of insurance covering the 1961 Cadillac automobile is applicable. The contract of insurance specifically extended coverage to Cockrum, and his family, for medical payments incurred as a result of an accident “through being struck by an automobile.” Cockrum’s daughter was struck by an automobile and medical expenses were incurred.

As was stated by Justice Barrow of the San Antonio Court of Civil Appeals in Williams v. Employers Mutual Casualty Co., 368 S.W.2d 122 (Tex.Civ.App., San Antonio 1963), medical payment coverage is a comparatively new form of insurance and the liability of the insurer under such a provision is based upon contract and not on negligence. 42 A.L.R.2d 983. The insurance policy in this case, being the contract between the parties, contains insuring agreements, as well as exclusions, contained in a form prepared by the insurance company. The insurance company is bound by the clearly expressed terms and provisions contained in such contract. While it did not collect a premium on the Pontiac automobile yet it did collect a premium for medical payment coverage on the Cadillac automobile which policy extended benefits to the insured, and his family, while being injured as a result of an accident “through being struck by an automobile.”

The judgment of the trial court denying recovery to appellant is reversed. Appellant does not ask that we reverse and render the case since the issue of reasonable attorney’s fees has not been decided by the trial court. Accordingly, it is the judgment of this court that the judgment of the trial court be reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.