author: NORTHCUTT, Justice.

text:
    C. L. DONALDSON et al., Appellants, v. FIRST STATE BANK OF ABERNATHY et al., Appellees.
    No. 7085.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1961.
    Rehearing Denied Jan. 3, 1962.

      Campbell, Brock, Wright & Waters, Lubbock, for appellants.
    Vickers & Vickers, Lubbock, Morehead, Sharp & Boyd, Plainview, for appellees.
   NORTHCUTT, Justice.

This is a suit brought in the 72nd District Court of Lubbock County by C. L. Donaldson and R. S. Bearden, as plaintiffs, against the First State Bank of Abernathy, et al., as defendants, seeking to set aside a judgment entered in the 140th District Court of Lubbock County. There is no question but what this is a collateral attack upon the judgment entered in the 140th District Court and both parties so agree. Both parties to this suit filed motions for summary judgment.. After hearing the motions for summary judgment the trial court sustained the motion of the First State Bank of Abernathy and refused the motion of the plaintiffs and entered judgment that plaintiffs recover nothing of and from the defendants. The reason the other defendants are not now and will not hereafter be referred to in this opinion is because their rights depend upon the rights of the defendant, bank. From the summary judgment entered, the plaintiffs perfected this appeal and will hereinafter be mentioned as appellants.

On December 26, 1931, the First State Bank of Abernathy, acting through its president, S. R. Merrill, sold to J. C. Bear-den by warranty deed all of block No. 185 in the original town of Abernathy, Texas, together with other property not involved in this suit, for the consideration of $400.-00. On February 15, 1934, J. C. Bearden sold said block No. 185 to J. A. Bearden, a feme sole, by warranty deed for the consideration of $50.00. On November 5, 1934, Mrs. J. A. Bearden sold to C. L. Donaldson, by warranty deed, all of said block No. 185 for the consideration of $75.-00.

On October 30, 1956 the First State Bank of Abernathy, as plaintiff, in cause No. 28082 in the 140th District Court of Lubbock County, filed its original petition against C. L. Donaldson, if living, or if dead, the legal representatives and unknown heirs, etc. whose place and residence was alleged as being unknown although diligence had been exercised to ascertain the same. The plaintiff then prayed that the defendants be cited by publication to answer the petition and that plaintiff have judgment for title to said block No. 185, for cost of suit and further relief as it might be entitled to, at law and in equity. The bank then pleaded that it owned the land in fee simple by virtue of limitations of title and that it, by and through an officer of the bank, had held peaceable and adverse possession of said land for a period of more than 10 years, cultivating, using and enjoying the same all that time, and that it had fenced the land and that the land had been under such fence continuously for over 10 years, and that it had paid the taxes when due on said land for a period of over 10 years previous to the commencement of the action. The bank then pleaded other grounds as to show completion of the 10 years limitations. At the same time the bank filed its petition in the 140th District Court it filed an affidavit for citation by publication; but the affidavit was dated as being made on October 23, 1956, some 7 days before the petition was filed. Citation by publication was had directing C. L. Donaldson, if living, or if dead, the legal representatives of C. L. Donaldson and the unknown heirs of C. L. Donaldson to appear and answer the bank’s petition at or before 10:00 o’clock A.M. of the first Monday after the expiration of 42 days from the issuance of the citation, the same being Monday the 17th day of December, A.D. 1956, before the Honorable 140th District Court of Lubbock County, at the Court House in Lubbock, Texas. The citation was published in the South Plains Farm Review on November 8th, 15th, 22nd, and 29th, 1956, and sheriff’s return was duly made and filed in said cause No. 28082 in the District Clerk’s office on December 3, 1956. On December 27, 1956 the District Judge appointed an attorney to defend the suit on behalf of said defendants in cause No. 28082, and said attorney filed an answer on the same date.

On December 27, 1956, judgment was entered in cause No. 28082 in the 140th District Court of Lubbock County decreeing the First State Bank of Abernathy, Texas, do have and recover from C. L. Donaldson the title to said block No. 185. On April 17, 1959, over two years after the First State Bank of Abernathy had recovered the judgment for title from C. L. Donaldson, Donaldson sold the property to R. S. Bearden for $10.00 consideration and assumption of all taxes.

On June 6, 1959, C. L. Donaldson and R. S. Bearden brought this action here involved seeking to set aside the judgment entered in cause No. 28082 in the 140th District Court of Lubbock County, contending (1) that the judgment in cause No. 28082 was void by the lack of due process * * * the failure to comply with court rules (T.R.C.P.) 109 and 110, 244 and 812, 800 and other pertinent rules, and (2) that the judgment in said cause was procured by extrinsic fraud perpetrated upon the court and these appellants.

By appellants’ first point it is contended that the judgment was void for lack of due process and the failure to comply with the Texas Rules of Civil Procedure under the terms of the above mentioned rules. In cause No. 28082, the attorney for the bank, 7 days before filing suit, made affidavit for citation by publication that the residence, names and whereabouts of the parties were unknown to the affiant and to the plaintiff although due diligence had been made to ascertain the same. The affidavit covered the information and requirements of rules 109 and 110. The trial court did appoint an attorney to defend the suit in behalf of the defendants and said attorney did answer said cause as provided in rule 244, and the judge filed with the papers of the cause its summary of the evidence as a part of the record and approved and signed the same. The record shows the bank did make proof as would entitle it prima facie to recover as provided under rule 800 and proceed as required under rule 812.

The judgment in cause No. 28082 recited the defendants having been duly cited by publication in the manner and for the period of time as required by law, and all other necessary recitals, and then stated the court proceeded to hear the evidence, considered the pleadings, and gave the courts findings. We cannot agree with appellants’ contentions that the judgment was void because the affidavit for citation by publication was made 7 days before the petition was filed instead of being made at the time suit was filed or during dependency of the suit. Durst et al. v. Park, Tex.Civ.App., 177 S.W.2d 301.

The real issue is whether the affidavit speaks the truth instead of just when it was made and filed. This suit is a collateral attack upon a judgment of a court of competent jurisdiction. The judgment on its face recites that the defendants having been duly cited by publication in the manner and for the period of time as required by law etc. These recitals in the judgment in a collateral attack cannot be contradicted by other portions of the record, as such recitations, in a collateral proceedings imports absolute verity thereto. Chapman v. Kellogg et al., 252 S.W. 151; Wixom et al. v. Bowers et al., Tex.Civ.App., 152 S.W.2d 896; Avant et al. v. Broun et al., Tex.Civ.App., 91 S.W.2d 426 writ dismissed.

By appellants’ second point of error it is contending judgment in cause No. 28082 procured by extrinsic fraud perpetrated upon the court and these appellants in not informing the court that the bank originally owned the property in question and had previously conveyed and warranted a title to the block of land in appellants, and if the court had been so notified of these facts it would naturally have inquired of the appellee what notice it had given to appellants of its repossession of the property and claim of adverse title. The appellants argue that fraud relating solely to the merits of the cause of action sought to be asserted makes any decree entered by reason thereof void and subject to collateral attack. Even if it be true, that the bank did not inform the court that it formerly owned the property, that would not make the judgment void. In this State, collateral attack on a Texas judgment is permitted only where the judgment under attack is absolutely void. Security Trust Co. of Austin et al. v. Lipscomb County et al., 142 Tex. 572, 180 S.W.2d 151 by the Supreme Court.

This is not a case where the bank deeded the property to a party and remained in possession and never brought to the purchaser’s attention that the grantor was claiming the property. On May 31, 1946 the bank caused the land to be fenced, and started paying the taxes, and doing other matters for a period of 10 years preceding the filing of the suit in cause No. 28082. It is stated in American National Bank of Beaumont v. Wingate, Tex.Civ.App., 266 S.W.2d 934, 940 Writ refused N.R.E. as follows:

“[5,6] Of course, if the plaintiff was not in possession of the land in suit at the date of her deed and thereafter continued so to be, her restoration and repair of the fence in 1938 and 1939 and her subsequent use of the land amounted to a re-entry upon the land and a resumption of possession of the land a substantial period of time after her deed. Texas & P. R. Co. v. Maynard, [Tex.Civ.App.] 51 S.W. 255; 2 C.J.S. Adverse Possession § 95(e) p. 655. The grantor, it is agreed, can re-acquire title by adverse possession under proper circumstances; and such a re-entry by the plaintiff would begin a new possession and the statutes of limitation would begin to run.”

This is not a case where the bank is making any claim prior to its warranty deed to J. C. Bearden, and neither is it claiming any title by virtue of any reservation of title or possession but is a claim by virtue of re-entry of possession and fencing and paying taxes etc. some 15 years after its deed to J. C. Bearden. Neither is this a case where the grantor is regarded as a tenant at sufferance of the grantee and his possession subservient to the title of the grantee, and he must show notice of repudiation of the presumed relationship. Here the court found the bank had adverse possession since May 31, 1946 for a period of more than 10 years at the time of entering judgment on December 27, 1956, and under the record it was not subject to collateral attack.

We find the bank was entitled to the judgment entered and overrule appellants’ assignments of error. Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Mrs. D. J. BROWN et vir, Appellants, v. SINGER SEWING MACHINE COMPANY, Appellee.
    No. 10897.
    Court of Civil Appeals of Texas. Austin.
    Nov. 15, 1961.
    Rehearing Denied Dec. 6, 1961.
    Clyde Vinson, San Angelo, for appellants.
    William Davenport, San Angelo, for ap-pellee.
   HUGHES, Justice.

This suit was brought by Singer Sewing Machine Company to recover upon a note given by Mrs. D. J. Brown in part payment of a Singer Sewing machine purchased by her from the Singer Company, and for foreclosure of a chattel mortgage on the machine securing payment of the note.

The new machine was partly paid for by Singer accepting, in trade, an old machine owned by Mrs. Brown.

Singer obtained possession of the new machine through sequestration proceedings.

Trial to the Court without a jury resulted in a judgment vesting title to the new machine in Singer, and vesting title to the old machine in Mrs. Brown.

This judgment makes no disposition of the note or mortgage, but construed in the light of the evidence, we take it to be a judgment for rescission of the sewing machine trade transaction.

Appellants’ first point is that the Court erred in failing to sustain a plea of res adjudicata.

It appears that a prior suit (No. 6351) was brought in the same court by appellee upon the note in suit and for foreclosure of the same lien. In this suit the husband, D. J. Brown, was the only original defendant, however Mrs. Brown was made a party by supplemental pleadings.

Mr. Brown answered by alleging the mental incapacity of Mrs. Brown at the time the trade was consummated, disaffirm-ing the agreement made by his wife, and tendering complete rescission of the trade.

This suit resulted in a judgment that Singer recover nothing, the Court finding that although the Browns had tendered the old machine, Singer refused to produce the new machine and “defendants then and there, without offering any evidence, moved the Court for judgment denying plaintiff the relief prayed for; and the Court having fully considered the evidence and finding the law and the facts with the defendants,” entered the take nothing judgment.

Singer attempted to have this judgment reviewed by a Bill of Review proceedings. In this it was unsuccessful.

It is our opinion that the judgment in Cause No. 6351 is void, and that it cannot support a plea of res adjudicata.

The burden in that case was upon the defendants to prove that it was entitled to a rescission of the contract, yet the judgment recites that the defendants offered no evidence.

In that case the defendants admitted the execution of the note and mortgage, their pleading being in the nature of confession and avoidance. It was incumbent upon them to prove their right of avoidance. The judgment affirmatively shows that this burden was not discharged, yet judgment was for them. This is fatal and fundamental error apparent upon the face of the record.

We understand that the Trial Court was attempting to execute rescission of the trade which he apparently believed was proper. He should have, however, before entering judgment, required the defendants to prove their grounds for rescission and then entered a proper judgment upon which the usual forms of execution could be based and issued.

The plea of res adjudicata is overruled.

Point two is that the Court erred in awarding to and permitting appellee to keep the new machine in its possession, and directing it to return the old machine to appellants.

The basis of this point is the judgment rendered in Cause No. 6351, which we have held void. If that conclusion is correct, this point is without substance, and it is overruled.

The last point is that appellants are entitled to a judgment against appellee upon the replevy bond given by it to secure possession of the new machine for the value of such machine and its use.

There was no wrongful sequestration proved here. Singer has been adjudged the owner of the new machine which it sequestered and replevied. It was admitted by appellants that Singer had a valid lien on the machine, and default on the debt is undisputed. The point is overruled.

The judgment is affirmed.

On Motion for Rehearing

Appellants pointing to the fact that the pleadings in prior suit No. 6351 disclosed that Mrs. Brown was a feme covert correctly state that the burden was on Singer to plead and prove facts sufficient to overcome her disabiliy of coverture. Giles v. First National Bank of Brownfield, Tex.Civ.App., 257 S.W.2d 945, Amarillo Civil Appeals. It follows that the judgment in Cause No. 6351 was not void. If a final judgment, it effectively adjudicated the nonliability of Mrs. Brown on the note and mortgage. It did nothing more. It did not adjudicate the title or right of possession of either of the sewing machines. It did not adjudicate appellant’s plea of rescission. In fact, the judgment reflects an intentional failure to rule on the plea for rescission. If the judgment in Cause No. 6351 was not a final judgment, it could not be the basis of a plea of res adjudicata. If it was a final judgment, it did not adjudicate the right of rescission which, alone, is accomplished by the judgment herein.

The motion is overruled.


author: BELL, Chief Justice.

text:
    INDEMNITY INSURANCE CO. OF NORTH AMERICA, Appellant, v. V. P. NOLLKAMPER, Appellee.
    No. 13822.
    Court of Civil Appeals of Texas. Houston.
    Dec. 7, 1961.
    Rehearing Denied Jan. 4, 1962.
    Finis Cowan, Houston, for appellant; Baker, Botts, Andrews & Shepherd, Houston, of counsel.
    M. A. Lehmann, Houston, for appellee and cross-appellant V. P. Nollkamper; Smith & Lehmann, Houston, Luther F. Hardin, Sidney J. Brown, Rosenberg, of counsel.
   BELL, Chief Justice.

The appellee recovered judgment against appellant in a workmen’s compensation case for sixty four weeks of total disability, followed by permanent partial disability.

The injury was to appellee’s back. Previously he had received a noncompensable injury to the back. The noncompensable injury and the injury here involved were both to the intervertebral disc at the L 4 and L 5 level. Also the last injury was to the thoracic spine according to some evidence.

The jury, in answer to Special Issue No. IS, found that the incapacity suffered by appellee was contributed to by the earlier nonoccupational injury. In answer to Special Issue No. 16 it found that if it had not been for the previous injury, the incapacity resulting from the last injury would have lasted less than a week. In answer to Spe■cial Issue No. 17, the jury found that if there had been no previous injury 90% of the incapacity of appellee would be due to the last injury.

Apart from these issues the appellee was entitled, on a basis of the jury verdict, to the judgment that was rendered.

Appellant moved for judgment that appel-lee take nothing based on the verdict. Ap-pellee moved that the court disregard the jury’s answers to Special Issues Nos. 15, 16 and 17 because they were immaterial and render judgment for appellee for sixty four weeks’ total disability followed by three hundred weeks of permanent partial disability. Appellee’s motion was granted.

Appellant contends that appellee was entitled to recover nothing because the jury found the incapacity of appellee from the last injury would have lasted less than a week except for the contribution made by the first injury. Alternatively he contends the award should be reduced by 10% because in answer to Special Issue No. 17 the jury answered that only 90% of appellee’s incapacity resulted from the last injury.

These contentions of appellant are based upon its contention that under Article 8306, .Sec. 12c, Vernon’s Ann.Tex.St., the insurer •is liable only for compensation for incapacity caused by the last injury even though it is a general injury and the previous injury was a general noncompensable one.

The question of whether Sec. 12c applies where the previous injury was a general one .and was noncompensable has been discussed in a number of cases and it has been uniformly held not to be applicable. Some • cases have discussed the question though : such discussion was unnecessary to the decision, and it has in such cases been said to be applicable. In the very recent case of St. Paul Fire and Marine Ins. Co. v. Murphree, 347 S.W.2d 817, the Amarillo Court of Civil Appeals held Sec. 12c not to be applicable. The cases touching the question were adequately reviewed and we will not review them here. A writ of error has been granted by our Supreme Court in that case on this point and eight procedural points. We do not, of course, know what the Supreme Court will ultimately hold. We are in accord with the holding in the case and those on which the court there relied. We would add to the discussion given in that case only briefly.

Before the amendment of Sec. 12c in 1947 it read as follows:

“If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association (Texas Employers’ Insurance Association) shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury.”

In 1947 the 50th Legislature passed an act amending Sec. 12c and adding Sections 12c-l and 12c-2. Acts 50th Legislature, Chapter 349, pp. 690, 691. Section 1 of the Act was made up of what is known as Section 12c, 12c-l and 12c-2 of Article 8306. Section 2 of the Act-was an emergency clause. This Act in substance re-enacted the wording of old Sec. 12c, but we think made a significant addition in the form of a “proviso.” Following the word “injury,” the last word in the old Sec. 12c, the Legislature placed a semicolon and then added these words: “provided that there shall be created a fund known as the ‘Second-Injury Fund’ hereinafter described, from which an employee who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries.”

Sec. 12c-l of Art. 8306 follows immediately as a part of Section 1 of the Act, and it reads:

“If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently and totally incapacitated through the loss or loss of use of another member or organ, the association shall be liable only for the compensation payable for such second injury provided, however, that in addition to such compensation and after the combination of payments therefor, the employee shall be paid the remainder of the compensation that would be due for the total permanent incapacity out of the special fund known as ‘Second-Injury • Fund’ hereafter defined.”

There follows Sec. 12c-2 creating the fund which is not here necessary to notice.

We think Sec. 12c as amended reflects an intention that a previously injured person shall not be deprived of compensation for the incapacity created by the combined injuries. Rather the legislative intent is that he shall be compensated. Then follows a provision for compensation out of the “Second Injury Fund” where total permanent disability results from the combination of the loss or loss of use of specific members of the body. Sec. 12c reflects the intention that the insurer shall be liable for the last injury only in those cases where the legislature has provided for compensation to the employee for the total permanent incapacity caused by a combination of injuries. The legislature has made no provision for compensation for such incapacity where it results from general injuries or where it is only partial. It has made provision for compensation out of that fund only for total permanent incapacity created by the loss or loss of use of specific members. Therefore we think the insurer is to provide full compensation for incapacity caused by a combination of a previous general injury and a subsequent general injury.

Every part of the Workmen’s Compensation Act should be given a liberal construction so as to afford protection to the individual workman who has been injured.

The judgment of the Trial Court is affirmed.


text:
    Mozelle McLEAN, Appellant, v. E. G. HILLMAN, Appellee.
    No. 7136.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1961.
    Rehearing Denied Jan. 3, 1962.

      Jack C. Burroughs, Dallas, for appellant.
    Leffingwell, Dawkins & Oehmann, Dallas, for appellee.
   NORTHCUTT, Justice.

On February 9, 1960, Mrs. Mozelle McLean, a widow, leased a resort tourist lodge located on Texhoma Lake, known as Hi-Land Lodge, to Mr. E. G. Hillman under a lease contract for a period of three years beginning on the 1st day of March, 1960 and ending on February 28, 1963. At the time of making the lease agreement Mrs. McLean sold to Mr. Hillman certain merchandise such as blankets, linens, dishes, etc. The sales contract was later drawn up in writing and dated February 13, 1960. The sales contract provided that at the termination of the lease Mrs. McLean would repurchase such merchandise or their replacements. The written lease contract provided for the payment of $1000.00 which was for the first and last months rent on the contract and $500.00 the first of each following month starting April, 1960.

Appellant, plaintiff in the trial court, and appellee, defendant in the trial court, will be hereafter referred to as they were in the trial court.

Defendant took possession of the premises on March 1, 1960, operated the same and paid the rent as called for in the lease up to July 13, 1960, at which time defendant, under his own testimony, wanted to get out from under the lease and wrote a letter to plaintiff, complaining that the sewerage disposal system was inadequate and because of that he intended to cancel the lease. Defendant claimed that plaintiff had concealed the fact that the septic tank was inadequate and same amounted to a fraud and also claimed that the lease was void because it did not contain an adequate description of the land; all of this was done by letter and in said letter the property was tendered back to the plaintiff with a demand that defendant be reimbursed for expenses which he had incurred because of the lease.

Plaintiff returned from Colorado where she had been visiting for her health and before anything further was done, the defendant, through his attorney, wrote a letter demanding that the lease be canceled and that plaintiff repurchase all of the tangible merchandise (blankets, dishes, etc.), together with the payment of $320.00 which defendant claimed he had spent for replacements, making a total of $1,763.00 and also demanded return of one-half of the month’s rent which had been paid in advance for the last month of the three year lease. Defendant refused to pay the rent beginning August 1, 1960. Further, in the letter dated August 5, 1960, defendant stated that if plaintiff did not repurchase the merchandise by paying him the sum of $1,763.00 and also refund to him $266.56 of the last month’s rent on the lease, that he would sell all of the plaintiff’s furniture and fixtures, including the air-conditioner, stoves, and machinery. This letter was written by defendant’s attorney, which contained a post script addressed to the defendant which we deem necessary to set out verbatim, and is as follows:

“Mr. Gene Hillman
“Gene: You purchased everything on that list from Mrs. McLean and it is yours unless she wants to repurchase it as she agreed that she would. I don’t know whether or not it’s worth $1,600, but I know she cannot replace it for that. If she doesn’t want to meet our terms I suggest that you have a second hand furniture dealer from both Sherman and Denison to come out and give you written bids as to what they will pay you for everything on the list and sell it to them lock, stock, and barrel.”

Upon receipt of that letter, plaintiff immediately filed this suit, seeking a temporary restraining order and injunction, which was issued and the defendant was restrained from selling any of the furniture and fixtures. Defendant then voluntarily left the leased property and plaintiff took over the same.

Defendant then filed an answer and cross-action to this suit wherein it was claimed that he was entitled to specific performance of the repurchase agreement and for judgment in the sum of the $1,700 plus, and one-half of the last month’s rent which had been paid on the lease. Plaintiff filed amended pleadings seeking damages for the property which had been damaged while the defendant had possession of it.

The case was tried to a jury and the jury returned a verdict answering all of the material Special Issues in favor of plaintiff, finding that defendant had forced plaintiff to cancel the lease because of his own acts and conduct and his threats that he would sell all the furniture and fixtures belonging to Mrs. McLean; further finding that the septic tank disposal system was adequate and met all the County and State requirements and answered certain Special Issues entitling plaintiff to money judgment in the sum of $355.00.

Plaintiff filed motion for judgment on the verdict, and defendant filed a motion requesting the Court to disregard answers to certain issues and for judgment for specific performance on the repurchase contract, claiming that the repurchase agreement was a separate and distinct contract from the lease agreement. It being claimed by plaintiff that the lease contract and the purchase agreement was intended and did amount to, as a matter of law, one contract, since both were interdependent upon each other.

The trial court overruled plaintiff’s motion for judgment and entered judgment for defendant for specific performance, offsetting the same by the sum of $355.00 as found by the jury as damages to certain of the leased property. Motions for new trial were filed and overruled, from which this appeal was perfected to the Court of Civil Appeals for the 5th Supreme Judicial District of Texas at Dallas and was transferred to this court by order of the Supreme Court.

After the verdict of the jury had been received by the court the plaintiff presented her motion for judgment upon the verdict of the jury declaring the lease agreement canceled for damages in the sum of $355.00 and that defendant have all his property covered by the sales contract. (The articles being listed.) In defendants motion for judgment it was contended the undisputed evidence established that Mrs. McLean contracted with the defendant by separate contracts that she would repurchase the personal property set out in the sales contract upon termination of the lease and consequently he was entitled to the agreed value in the sum of $1,443.00 less the $355.00 damages found by the jury. The defendant in his motion for judgment also requested the court to disregard the jury’s answers to special issue No. 4. In answer to special issue No. 4 the jury found that the defendant forced Mrs. McLean to declare the lease agreement canceled by making threats that he would sell all the furniture and fixtures belonging to Mrs. McLean.

It is agreed that the lease contract and sales contract were made at the same time, and defendant so testified, but they were drawn at different dates. The lease agreement was dated February 9, 1960 and the purchase agreement as to the linens, dishes, etc., was dated February 13, 1960. In the purchase agreement dated February 13, 1960 it is stated “In connection with lease agreement on Hi-Land Lodge dated February 9, 1960, between the same parties * * The lease provided for the term •of three years beginning the first day of March, 1960. On March 1, 1960, defendant paid by check the $1,000.00 providing for the first and last month of the lease, and also at the same time paid for the supplies under the sales contract in the sum of $1,628.79. The defendant testified he wanted to get out of the lease, and unless Mrs. McLean came to his terms he was going to sell everything she had. Defendant’s attorney wrote to plaintiff’s attorney that if plaintiff did not intend to comply with her agreement to repurchase the items including stoves, refrigerators, air-conditioners, linens, chairs, etc., that they would sell them to the highest bidder. The only item mentioned in this letter that was included in the sales contract was linens.

We think it is well settled in this state that two writings connected by reference one to the other, or simultaneously made, with respect to the same subject matter and proved to be parts of an entire transaction constituted but a single contract as if embodied in one instrument. It is stated in the case of Board of Ins. Com’rs et al. v. Great Southern Life Ins. Co. et al., 150 Tex. 258, 239 S.W.2d 803, 809 by the Supreme Court as follows:

“It is a generally accepted rule of contracts that ‘Where several instruments, executed contemporaneously or at different times, pertain to the same transaction, they will be read together although they do not expressly refer to each other.’ 17 C.J.S., Contracts, § 298, p. 714. The rule is followed by the courts of this state. Miles v. Briggs et al., Tex.Civ.App., 18 S.W.2d 850 (writ dism.) ; Veal et al. v. Thomason, 138 Tex. 341, 159 S.W.2d 472; 10 Tex.Jur., p. 286 sec. 166.”

In the case of Pacific Mutual Life Insurance Company et al. v. Westglen Park, Inc., Tex., 325 S.W.2d 113, 116, by the Supreme Court it is stated:

“[1,2] Where the parties sign and thereby enter into a written contract, they are bound by its provisions. Pyle v. Eastern Seed Co., 145 Tex. 385, 198 S.W.2d 562. Here we will determine the nature and extent of the obligation by construing the warranty deed and the subsequent contract together, since they constitute but one transaction. Board of Insurance Commissioners of Texas v. Great Southern Life Insurance Co., 150 Tex. 258, 239 S.W.2d 803; Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472.
“[3] The cardinal rule of construction of unambiguous contracts is to ascertain the intention of the parties as expressed in the language used in the instrument itself. Citizens National Bank in Abilene v. Texas & Pacific R. Co., 136 Tex. 333, 150 S.W.2d 1003; Jackson v. Richards, Tex.Civ.App., 157 S.W.2d 982, writ ref. This intention is determined from the language of the instrument itself. Reconstruction Finance Corporation v. Gos-sett, 130 Tex. 535, 111 S.W.2d 1066. The language of the contract is the determinant of the nature and extent of the obligation. Citizens National Bank in Abilene v. Texas & Pacific R. Co., supra.”

Defendant testifying that the lease contract and sales contract were made at the same time, and the sales contract providing “in connection with the lease agreement”, we think clearly shows that this whole matter would constitute but one single transaction. In looking to the intention of the parties under the terms of this whole transaction, which is plain and unambiguous, we do not believe that any other construction could be had as to the meaning and intention of the parties than that the term “termination of the lease” ■could be understood or mean anything other than at the end of the lease, February 28, 1963.

The defendant testified that he wanted to get out from under the lease contract, and threatening the plaintiff as he did and failing to pay the rent, clearly shows the defendant was not living up to the terms of the lease contract. The jury found upon abundance of evidence that defendant brought about the termination of the lease agreement by his own act and conduct; that defendant forced the plaintiff to declare the lease agreement canceled by making threats that he would sell all the furniture and fixtures belonging to the plaintiff; that defendant threatened the plaintiff, between July 4 and August 6, 1960, that if she did not repurchase certain equipment as shown in plaintiff’s exhibit No. 3, and pay him the sum of $1,628.79, that he would sell all of the furniture and fixtures, including the air-conditioners, refrigerators, stoves and machinery connected with such property, and that in making such threats he was not acting in good faith in the belief that he was exercising a right. The jury also found that the sewerage disposal system at Hi-Land Lodge complied with the requirements of the State and County Health authorities on July 13, 1960, the date defendant notified the plaintiff that he was rescinding the lease on Hi-Land Lodge and further found that the Hi-Land Lodge was suitable for the purpose for which it was leased by the plaintiff to the defendant during the period from March 1, 1960 through July 13, 1960, inclusive.

By defendant’s counterpoints he complains that plaintiff has not properly brought this appeal under the rules and also that the court was correct in his rulings. Without discussing these assignments, we think the plaintiff has properly brought and presented this appeal under Rule 324, Texas Rules of Civil Procedure and the trial court erred in rendering judgment as he did.

Under defendants own admissions, we do not believe that he came into court with clean hands but forced the cancellation of the lease in question. We are of the opinion and so hold that the lease contract and sale of the personal property constituted but one single transaction and that the meaning of the term “termination of the lease” meant at the end of the three years lease. The trial court erred in setting aside special issue No. 4 and in granting judgment for the defendant. Defendant could not cancel the lease and compel plaintiff to repurchase the personal property without showing that he had performed his part of the contract. Gober v. Hart, 36 Tex. 139; United States v. Davidson, 5 Cir., 139 F.2d 908; Empire Gas & Fuel Co. Inc., v. Lone Star Gas Co. Inc., 5 Cir., 289 F. 826.

Judgment of the trial court is reversed and remanded to the trial court with instructions that judgment be rendered for plaintiff upon the verdict of the jury and that all costs be assessed against the defendant.


author: YOUNG, Justice.

text:
    Cloyce BOX et al., Appellants, v. ASSOCIATES INVESTMENT COMPANY, Appellee.
    No. 15924.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 17, 1961.
    Rehearing Denied Dec. 15, 1961.
    Arthur Mitchell, Austin, for appellants.
    Robert R. Cole, Dallas, for appellee.
   YOUNG, Justice.

This appeal is from a judgment of the trial court overruling appellants’ motion for new trial and exceptions to a judgment of that court against them and in favor of appellee.

On July 31, 1959 appellee brought suit against Cloyce Box and Boyce Box, allegedly doing business as partners under the trade name of Box Auto Sales, on numerous automobile notes for deficiency balances claimed to be due thereon after all credits. This petition was duly answered by the two defendants in verified denials of partnership ; or that said partnership had authorized any one to act for them in the execution of the instruments sued upon; claiming bad faith on part of plaintiff in sale of certain collateral attached to the notes, which resulted in any alleged deficiencies; pleading general denial, and also the bar of two-year statute of limitations.

On October 11, 1960 a final judgment was signed and entered by Dallas A. Blankenship, Judge of said Court, reciting in part: “On the 10th day of October 1960, the above styled and numbered cause came before the Court for trial on the merits, all parties having been duly notified according to term of law, came the plaintiff by its attorney and the defendants came not though having filed written answer with Clerk of Court. The Court, having read the pleadings and having heard evidence and argument of counsel, finds that the material allegations contained in the plaintiff’s petition are true and correct and is of the opinion that the plaintiff is entitled to judgment against each of all defendants, both jointly and individually.” The judgment was against both Cloyce and Boyce Box for principal balances remaining due on the various notes in sum of $1350.90, interest to that date of $478.46, or a total of $1829.36 with interest from date of trial at 10% per annum and all costs.

Defendants’ attorney in this cause was Arthur Mitchell of Austin, Texas; plaintiff’s attorney being Robert R. Cole of Dallas. Said defendants’ attorney, upon notification of above entry of judgment, immediately filed motion for new trial stating that such judgment had been entered without notice to appellants; setting forth as grounds the following interchange of letters :

That on August 28th, 1960 he had written to Mr. Cole of his employment as defense counsel in the case; in addition stating “I would appreciate it if you would give me notice of any of the proceedings in this case.” And on August 31, said attorney for appellants wrote plaintiff’s attorney, confirming a notice from the latter that the case had been set for trial on October 10, 1960 at 10 o’clock a. m.; writing further: “I have this date communicated with my client to determine if he would be available on that date and will correspond with you on this matter;” also observing that the above date of setting was personally satisfactory. On September 6,1960 Mr. Mitchell addressed the attorney for plaintiff stating that he had received word from his client, Cloyce Box, to effect that said defendant “would be tied up in Tulsa, Oklahoma on October 10, I960;” requesting a “bottom dollar” figure which he could pass on to the defendants for the purpose of settling the case.

On September 13, 1960 the attorney for plaintiff then wrote to Mitchell to effect that the case could be settled for $1500;: further stating in such answer: “I was-disappointed to learn that you will not be-able to go to trial on October 10, 1960. If it is not possible to settle on the above basis,. I will appreciate your early advice as to-when it will be convenient to set the case-for trial. As you know, it has been pending for more than a year now. Very truly yours, Robert R. Cole.” Without further-notice or communication, this defense attorney was notified on October 13, 1960 of the fact that the case had been heard and. judgment rendered on October 10, 1960.

Appellants’ motion for new trial included all the correspondence above outlined; concluding with allegations “that this judgment - should be set aside in all things and a new trial be granted to them, or in the alternative the case be set upon the docket for trial upon its merits on grounds (1) that a. defendant’s original answer properly verified has been on file and filed by the attorney for the defendants in behalf of the defend- ' ants; and (2) by agreement of the parties-through their attorneys, that the case would ' not go to trial on October 10th as set in.’ view of a prior commitment on the part.' of the defendants;”

This motion for new trial was overruled by the trial court on November 11th, I960-entered November 18th; attorney for defendants obtaining notice by copy thereof, being mailed to him on November 21st. It. contained the recital that plaintiff came by attorney “but defendants came not although ' duly notified by the court.” Prior thereto-' and on November 8th, 1960 defense counsel wrote to the trial court as follows:

“Dear Judge Blankenship: I wondered' if you would have had an opportunity to-review the motion for new trial filed in the- ■ above captioned case by my office and whether or not the matter has been set. down for hearing. I am of course anxious-to get the judgment heretofore entered by the Court set aside in order that the case-can be set down for trial on its merits. 1 would rather of course have the motion-overruled by action of the court than by operation of law in order that I might be able to protect the record for an appeal. However, I am certain that the Court will want to have a hearing on this motion and I wondered if the Court has set a time for hearing on the motion. I would appreciate it very much if you would inform me of the date of the hearing so that I can let attorney for the plaintiff know of the date and be in attendance on the same. Thanking you very much, I am Sincerely, Arthur Mitchell.”

On November 23rd, 1960 Mr. Mitchell filed a verified instrument styled “Exceptions to order overruling motion for new trial and to recital that same was ordered after due notice.” His challenge to said recital stated that defendants did not receive any notice of said setting, even after request and attached thereto as Exhibit A a copy of above quoted letter to Judge Blankenship. Appellants further say that there is on file in this court a certificate from the official court reporter of the 101st District Court “that I did not report any proceedings in the above and entitled cause.”

Appellee concedes that above summary of defensive pleading and related matter is substantially correct in so far as they purport to state facts. Notwithstanding this, it objects to our consideration of appellants’ points based thereon because same are not only “outside the proper record on appeal but also as set forth are incomplete and misleading”; the facts therein stated not complying with the requisite of a bill of exceptions, “which is the only proper procedure for preserving their claimed errors.” The correspondence in question is germane to defendants’ contention (1) that he was thereby mislead by plaintiff into believing that the trial would not be heard on October 10, but would instead be passed to a later date; and (2) that although the trial court may have sent notices to attorney Mitchell of the setting of the motion for new trial, he received no such notice in response to his request of November 9th. These matters were duly presented in appellants’ motion for new trial and verified exceptions to the order, they not having had opportunity to incorporate same in any bill of exceptions.

While the instant case involves a failure of counsel to appear at the time set for trial, the same general principle of Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 applies as in the case of a default judgment that “While trial courts have some measure of discretion in the matter, as, in truth, they have in all cases governed by equitable principles, it is not an unbridled discretion to decide cases as they might deem proper, without reference to any guiding rule or principle. Trial judges desire and are entitled to have a principle or rule to guide them, and we, therefore, reannounce, in slightly changed language the rule established by the above authorities, as follows: A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. This is a just rule. It prevents an injustice to the defendant without working an injustice on the plaintiff. Such a rule has the sanction of equity.”

It is the position of appellants that they were mislead by the letter of plaintiff’s counsel above of date September 13, 1960, understanding therefrom that the case would not be tried on the date set but passed to another “convenient” date. Said letter stated in part: “I was disappointed to learn that you will not be able to go to trial on October 10, 1960. If it is not possible to settle on the above basis, I will appreciate your early advice as to “when it will be convenient to set the case for trial. As you know, it has been pending for more than a year now. Very truly yours, Robert R. Cole.” (Emphasis ours.)

On the other hand appellee charges negligence on the part of appellants’ counsel in that “the latter sat back and did nothing for the nearly one month period between the date of such letter and the date the case was set for trial. He never himself directly requested the trial court to postpone the case and made no effort to verify with the court or the clerk whether the court would approve a postponement, and this, notwithstanding there was no agreement to pass the case. Therefore, it clearly appears that the failure of appellants to appear for trial is chargeable, not to appel-lee, but to their own negligence in failure to secure the trial court’s approval of postponement of the case.” It further appears from appellee’s brief that “On the date the case was set for trial, the attorney for appellee appeared in court and exhibited all of the above correspondence to the trial judge. Contrary to the implications of appellants’ brief, the attorney for appellee did not press the case for trial at that time but merely stated to the court that he was ready for trial, though counsel for appellants according to the exhibited correspondence was not. The trial court, exercising the discretion reposed in it in controlling its docket, ordered that the case be tried at that time.”

Rule 245, Texas Rules of Civil Procedure states in part: “The court shall provide by rule for the placing of actions upon the trial calendar, (a) without request of the parties or (b) upon request of a party and notice to the other parties or (c) in such other manner as the courts deem expedient. * * * ” Manifestly, the setting of October 10 on the court’s calendar was pursuant to subd. (a) above. Normally the effect of the Cole letter of September 13, would cause defense counsel to believe that the case would be passed for a resetting under subd. (b) without further ado; and certainly such letter in nowise placed defendants’ attorney on notice that his presence on the appointed day would be required in order to secure such postponement. Attorney Mitchell was reasonably caused to be misled by the contents of said letter; his failure to appear in person not, amounting to negligence within purview of the general rule as announced in Craddock v. Sunshine Bus Lines, Inc., supra.

Clearly the failure to appear was not intentional or the result of conscious indifference on his part, but was due to a mistake. See Craddock case. It is not disputed that a meritorious defense had been set up nor is it indicated that grant of a new trial would occasion delay or work any injury to plaintiff. “While it has been stated broadly that a litigant by his attorney must note the progress of his case in court and is not entitled to notice except as prescribed by law, as, a general rule, except for compelling reasons, it is essential to the proper administration of justice that proper notice shall be given of steps proposed to be taken.” 66 C.J.S. Notice § 14, p. 652.

The judgment under review is accordingly reversed and this cause remanded to the trial court for a new trial.


author: WILLIAMS, Justice.

text:
    Louie H. JONES, Appellant, v. TEXAS EMPLOYERS INS. ASS’N, Appellee.
    No. 15936.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 1, 1961.
    Rehearing Denied Dec. 29, 1961.

      Mullinax, Wells, Morris & Mauzy and Lonnie C. McGuire, Jr., Dallas, for appellant.
    Leachman, Gardere, Akin & Porter, and Edward E. Crowell, Jr., Dallas, for appellee.
   WILLIAMS, Justice.

Louie H. Jones sued Texas Employers Insurance Association seeking workmen’s compensation benefits. He first alleged that he had sustained total and permanent disability as a result of an injury sustained by him on July 13, 1958 but, by trial amendment, he reduced his demands to 32 weeks temporary total disability following by permanent partial disability. In a jury trial the principal controversy was the extent of plaintiff’s disability. In answer to special issues the jury found that plaintiff was temporarily and totally disabled for a period of 32 weeks following his injury and, in answer to special issue No. 6, found that at the end of the 32 week period plaintiff would not have any partial incapacity. Judgment was rendered for plaintiff for 32 weeks compensation only. Plaintiff appeals contending (a) that the trial court erred in admitting certain moving pictures in evidence; (b) that the jury’s answer to special issue No. 6 was so against the great weight and preponderance of the evidence as to be clearly wrong; and (c) that there was no evidence to support the jury’s answer to special issue No. 6.

During the trial appellee placed on the witness stand a Mr. R. L. Bellflower, an investigator employed by appellee, who testified that he had investigated appellant Jones on three occasions prior to trial; that he was armed with a 16-millimeter movie camera with which he took pictures of Jones on January 8, 1960 and on March 18, 1960. Bellflower testified that he had previously used the particular camera; that he had experience with motion picture photography for more than 8 years; and he further testified concerning the operation of the camera having to do with its speed and other features. After preliminary qualifying testimony the following transpired :

“Q. I’ll ask you to state whether or not the films that you have taken — do you have them with you — the films that you have taken and have with you, do they accurately and truly and in a lifelike way portray whatever they show as the activities of Mr. Louie Jones?
“Mr. Mullinax: We object to that as calling for an opinion and conclusion. The films of course would be the best evidence of what they show?
“The Court: I sustain your objection.”

Thereupon two reels of film were produced by the witness, marked for identification, and offered in evidence. Counsel for appellant then objected as follows:

“Mr. Mullinax: And of course we will object to them at this time. We don’t know what those films contain at all. We don’t know the relevancy or anything else — I don’t know how I can object to them until I see them?
“The Court: I overrule the objection.
“Mr. Mullinax: Well, then, may I say that I will reserve the right to renew an objection whenever I can see what these films are ?
“The Court: You may
“Mr. Mullinax: Thank you, Your Honor.”

The films were then projected upon a screen and during the showing thereof the witness Bellflower was questioned concerning various things shown by the pictures. At the conclusion of his testimony and the showing of the films the witness was subjected to a lengthy cross-examination and then asked by appellant’s counsel to show the films again while appellant’s wife was on the witness stand. During cross-examination Bellflower expressed some doubt as to the identity of appellant in one of the scenes shown by him. At no time or following the demonstration of the motion pictures to the jury was any further objection made by appellant’s counsel, nor was any motion made to strike the pictures or any part thereof.

The gravamen of appellant’s contention is that if he had been allowed a preview of the motion pictures that he would have objected to the relevancy thereof. He says that he would have objected because the films fail to distinguish the appellant from other employees and that they only show the appellant performing acts which he had previously testified he was able to perform. While we agree with appellant that the trial court should have, upon proper request, permitted him to view the pictures in advance of their being shown to the jury, yet we are of the opinion that such error, if any, was not one that amounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause a rendition of an improper judgment in this case. Rule 434, Texas Rules of Civil Procedure. Both appellant and appellee state that this is a case of first impression in Texas insofar as the question of motion pictures is concerned. Our research has failed to develop cases exactly like this one, but we see no distinction in motion picture films than any other type of physical evidence that is offered by a party.

It has long been the rule that, before admission, offered documents or tangible items should be submitted to the adverse party for inspection. 41-B Tex.Jur. § 112, p. 142. “The Procedure of Admitting and Excluding Evidence” by Charles T. McCormick, Vol. 31, Tex. Law Rev. p. 128. The obvious reason for this rule is to permit the opposing attorney to inspect the tangible thing which is proffered and give him an opportunity to make such objection thereto as he sees fit. However, as stated above we deem the error, if any, to be harmless. As shown above, appellant’s attorney reserved the right to make objections to the films as it was shown. He filed no motion to withdraw the jury and present the films in the absence of the jury. During the showing of the films he made no objection thereto, either to the relevancy or to any other point. After the demonstration of the films no motion was made to have the court instruct the jury to disregard the films, or any part thereof. No motion for mistrial was made based upon the demonstration of the film. Great latitude is allowed the trial court in determining the relevancy of testimony. The use of motion pictures, especially in damage suits and workmen’s compensation cases, has become rather commonplace in our practice. Richardson v. Missouri K. & T. R. Co., Tex.Civ.App., 205 S.W.2d 819; and cases cited in 62 A.L.R.2d 686. Moreover, the motion pictures were obviously introduced for the purpose of demonstrating what the appellant could or could not do, all on the issue of disability. The activity shown in the pictures, as well as the identity of the parties shown in the pictures, go to the weight to be given the testimony, rather than to the admissibility thereof. There being no reversible error demonstrated, appellant’s first point is overruled.

In considering appellant’s points two and three being “insufficient evidence” and “no evidence” points, we are guided by the rules set forth by Chief Justice Robert W. Calvert of our Supreme Court in his Article entitled “No Evidence” and “Insufficient Evidence” points of error, Tex. Law Rev. Vol. 38, pp. 361, 372, and also by the Supreme Court in In re King’s Estate, 150 Tex. 622, 244 S.W.2d 660. With these rules in mind we have carefully considered the statement of facts consisting of 277 pages which presents the characteristic picture of conflicting evidence concerning the extent of disability so often found in cases of this kind. From an examination of this testimony, considered as a whole, we find ample evidence of probative force to justify the submission of special issue No. 6. Furthermore, from this testimony we are not able to agree with appellant that the answer of the jury to special issue No. 6 is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong. Following appellant’s injury in July 1958 he went to see his own family doctor who referred him to Dr. Boswell, an orthopedic specialist, who treated him for several weeks. Appellant returned to work doing light work on the 1st of September 1958 where he continued such employment until February 1959, at which time he was given his old job back. Dr. Boswell testified that he discharged appellant on August 25, 1958 at which time he thought that appellant could return to any type work “he desired to do”. Dr. Boswell next saw appellant on February 17, 1959, at which time appellant gave a history of a lifting, twisting injury. Appellant was hospitalized and in March 1959 he was released by Dr. Boswell to return to duty. It was Dr. Boswell’s opinion that when he was released in March 1959 that there was no disability to prevent appellant from returning to full duty and that there was no permanent restriction on his ability to do ordinary tasks. Dr. Boswell examined appellant again in August 1959 and as a result of such examination he found nothing to change his conclusions from that of March 1959. Appellant testified that he purchased an interest in a filling station in May 1959 and operated this service station until December 1959. Losing money on this venture he then went to work for an oil company, operating a service station, and worked until about March 1960. For a few days he worked with another service station and then went to work for a construction company as a truck driver. After a short period he then went to work for Hermetic Seal Transformer Company for which company he was working at the time of the trial. Appellant’s medical testimony consisted of that of Dr. Ruth Jackson who first examined appellant on January 14, 1960, some 18 months after appellant’s injury. She testified that in her opinion the appellant was disabled.

Obviously the testimony of Dr. Boswell, alone, was sufficient to justify the court in submitting special issue No. 6 and therefore appellant’s point of “no evidence” is overruled. Concerning the “insufficient evidence” point it is quite obvious from this record that the evidence is conflicting, as is usual in cases of this kind, we are not able to say that the jury’s finding to the effect that there was no partial disability following the undisputed 32 week period of temporary total disability, was so contrary to the great weight and preponderance of the evidence as to be manifestly wrong or unjust. It is elementary that the extent and duration of disability in a workmen’s compensation case is a matter for the jury’s determination. Texas Employers Ins. Ass’n v. Scott, Tex.Civ.App., 233 S.W.2d 171; Muro v. Houston Fire & Casualty Ins. Co., Tex.Civ.App., 329 S.W.2d 326. The mere fact that the jury chose to accept Dr. Boswell’s testimony as opposed to that of Dr. Jackson, and the lay testimony, is not sufficient grounds for us to hold that the verdict must be overturned. Opinions of medical witnesses in compensation cases, as in other cases, are not controlling, so that it should not be said on appeal that the jury’s finding of facts contrary to those testified to by an expert does not and should not constitute a finding against the great weight and preponderance of the evidence. Angelina Casualty Co. v. Spencer, Tex.Civ.App., 310 S.W.2d 682.

A recent case involving a similar question is that of Guerra v. Texas Employers’ Ins. Ass’n., Tex.Civ.App., 343 S.W.2d 306, in which there was conflicting medical testimony regarding the extent of appellant’s injury. The San Antonio Court of Civil Appeals pointed out that it was the jury’s function to resolve conflicts in the testimony concerning the extent of disability and such resolution of the conflict by the jury was not clearly against the overwhelming weight and preponderance of the evidence.

Appellant lays great stress on the fact that the evidence demonstrates that appellant was making less money on the job he had held for some five months before the time of this trial. This, at the most, would only be evidentiary. The question is not what appellant was actually being paid, but rather whether there was any decrease in his ability to earn. The jury was certainly entitled to reject some of the testimony, or to draw reasonable inferences from the total body of the testimony, and to conclude that appellant’s ability was not impaired even though he was actually making a lower remuneration. Consolidated Casualty Co. v. Baker, Tex.Civ.App., 297 S.W.2d 706.

An overall consideration of this record reveals ample evidence of probative force not only to justify the submission of special issue No. 6 but to justify the answer of the jury thereto. Having heard the evidence, observed the demeanor of the witnesses, and having carefully weighed the facts and circumstances before it, the jury made its decision, and such decision cannot be said to be contrary to the law.

Judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    JACKSON BREWING COMPANY, Appellant, v. Jack D. CLARKE, Jr., Appellee.
    No. 6505.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 9, 1961.
    Rehearing Denied Nov. 29, 1961.

      See also 346 S.W.2d 149.
    Kelley & Ryan, Houston, for appellant.
    McClain & Harrell, Conroe, for appellee.
   STEPHENSON, Justice.

This is an action for damages brought by appellee, Jack D. Clarke, Jr., against appellant, Jackson Brewing Company, based upon breach of an agreement to cancel an indebtedness of appellee to appellant. Judgment was rendered by the trial court for appellee in the amount of $11,858.88 upon the verdict of the jury.

It was the contention of appellee in the trial court that he sold his beer business to W. L. McMillan exclusive of the beer inventory, and that the appellant had agreed to cancel his indebtedness for beer he had purchased from appellant. The controlling question is whether appellee, in the sale of his business to McMillan, was paid for his inventory of beer by McMillan.

The jury found: that appellant agreed to cancel the indebtedness, and that McMillan did not pay appellee for the inventory of beer. Appellant contends the jury’s answers to these two issues were not supported by sufficient evidence and were so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. After careful consideration of the entire record it is our conclusion that appellant’s contentions must be sustained.

Appellee had been the Jax Beer distributor for many years in Conroe, Texas. He was informed by a representative of appellant that they were not satisfied with his work and that he would be replaced. W. L. McMillan was named as the new distributor and negotiations were carried on for the sale. Appellee testified he first offered to sell everything in his business, including a warehouse, except the inventory of beer, for $40,000.00; that this offer was not accepted, but that he was paid $28,500.00 for his business, plus certain other items bringing the total to $31,777.27. There is much uncertainty as to how this total figure is arrived at, as the record reveals two sets of figures given by appellee, one on direct examination and another on cross-examination.

The uncontroverted evidence shows that W. L. McMillan paid appellee $25,277.27 in two checks on the date of the sale, and John McMillan paid appellee $6,500.00, making a total of $31,777.27. All of the evidence further shows that an inventory was taken by appellee, McMillan and a representative of appellant.

McMillan testified unequivocally that he negotiated for, and paid for the beer inventory along with the rest of the appellee’s business. Appellant offered in evidence an itemized list of the beer inventory and certain empties, hulls and pallets, all in appel-lee’s handwriting. This exhibit showed a total value of $15,671.07 and then, also in appellee’s' handwriting had the notation “Less 100 per case to he received from Brewery — $393.80” which was deducted, leaving a balance of $15,277.27. McMillan further testified that he and appellee agreed upon an additional $2,000.00 for warehouse equipment and $5,000.00 for three trucks, a total of $22,277.27 which was the amount of one of the checks given by McMillan to appellee, and also $3,000.00 for good will, which was the amount of the second check. These two items make a total $25,277.27, and when added to the admitted $6,500.00 paid by John McMillan for the transport, make a total of $31,777.27 which is the amount paid to appellee, as shown by all of the evidence.

Appellee offered no explanation as to why he made the notation: “Less 100 per case to be received from Brewery.” This court can think of no logical reason this notation was made if appellant had agreed to cancel appellee’s indebtedness for the amount of beer inventory he had on hand at the date of the sale. If this had been the case, there would have been no point in separating the 100 per case handling charge from the value of the beer inventory. This inventory in appellee’s handwriting, together with the notation mentioned, clearly indicates to us that it was the intention of appellee to charge McMillan the value of the beer inventory and to deduct the 100 per case handling charge to be received from appellant.

This court is well aware of the rule that we are not to substitute our judgment for that of the jury. However, we believe a consideration of the entire record reveals the jury verdict on these two issues is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong, unjust, and shocking to the conscience. We feel compelled to take this action which is clearly authorized by the law of this state. Continental Bus System, Inc. v. Biggers, Tex.Civ.App., 322 S.W.2d 1, writ ref. n. r. e.

In view of the fact that appellee was not asked to explain this notation by either counsel for appellee or appellant, we feel this case should be further developed upon a second trial. We suggest further inquiry be made into the items appellee contends, make a total value of $3,277.27, especially the $90.79 indicated to be for a battery, license and parts on trucks.

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