text:
    John P. MARANGE et ux., Appellants, v. LEW WILLIAMS CHEVROLET, INC., Appellee.
    No. 14144.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 16, 1963.

      Edwards, Yturri & De Anda, Corpus Christi, for appellant.
    Lewright, Dyer & Edwards, J. M.- Burnett, Corpus Christi, for appellee.
   BARROW, Justice.

This is an appeal by John P. Marange and wife, Pauline Marange, from a judgment rendered in their suit to recover damages for personal injuries sustained by Mrs. Marange in a rear-end collision. The Jury answered all liability issues favorably to plaintiffs and found damages in the sum of $3,250.00. Plaintiffs say that this sum is inadequate and have perfected this appeal.

Plaintiffs assert that the inadequate damages are the probable result of errors of the trial court in the admission and exclur sion of evidence and by the submission of defensive issues in the court’s charge. They also assert that the amount of damages found by the jury is manifestly too small and unjust and against the overwhelming weight and great preponderance of the evidence.

The accident occurred at a multiple street intersection in Corpus Christi on July 31, 1961, when a pick-up truck, operated by an agent of defendant, Lew Williams Chevrolet, Inc., ran into the rear of the car driven by Mr. Marange and occupied by Mrs. Marange as a passenger. It is undisputed that the accident was very minor from the standpoint of property damage, as virtually no damage was done to either vehicle. Mrs. Marange was sitting sidewise on the seat and was thrown forward in such manner that her chin and right arm were bruised. Plaintiffs asserted that her injuries caused Mrs. Marange much physical pain and also alleged that fear as to her future, caused her to suffer extreme mental anguish. Plaintiffs alleged that Mrs. Marange had suffered other injuries prior to this accident, but that she had fully recovered and was able to maintain steady employment prior to July 31, 1961. They sought damages in the amount of $75,000.00.

The most contested issues in the trial related to the question of injuries to Mrs. Marange. The evidence commenced on October 2, 1962, and was not completed until October 9, 1962. Five doctors testified and their testimony covers over half of the 628-page statement of facts. Their testimony is sharply conflicting. There is medical evidence fully supporting plaintiffs’ contention that Mrs. Marange sustained a ruptured cervical disc which will require surgery to correct, and has resulted in .severe physical pain, and caused her considerable anxiety and depression. It was the contention of defendant, which is also supported by medical evidence, that Mrs. Marange’s injuries were the result of a 1958 rear-end collision, and that her mental anguish was caused by her own emotional unstability.

Plaintiffs complain first of the trial court’s refusal to admit evidence that two or three days after the accident, Mr. Marange developed pain in his lower back which required treatment by a doctor. Mr. Marange did not assert a claim for personal injuries, but urges that this evidence was admissible (1) for all purposes; (2) for the specific purpose of showing force of the impact; (3) for showing that the impact was of sufficient force to do harm to the human body; and (4) to impeach the testimony of defendant’s driver that Mr. Marange had stated at the scene, that neither he nor his wife was hurt.

Plaintiffs cited three cases involving train accidents in which the courts held admissible the evidence of injury or noninjury of other persons on the train. In Levy v. Campbell, Tex.Sup., 19 S.W. 438, rev. Tex.Sup., 20 S.W. 196, the conductor who was seated in the same car and near plaintiff, and who fell in the same way as plaintiff, was properly permitted to testify that he was not injured and that all the shock was at the opposite end of the car. In Missouri, K. & T. Ry. v. Wright, 19 Tex.Civ.App. 47, 47 S.W. 56, and Lamar v. Panhandle, S. F. Ry., Tex.Com.App., 248 S.W. 34, it was held that evidence that another person was killed was admissible because it showed a violent impact, contrary to the contention of the railroad. Plaintiffs also cite the rule in blasting cases as illustrated by Weaver v. Benson, 152 Tex. 50, 254 S.W.2d 95, that force of the blast may be shown by what happened to nearby persons or structures.

Here all parties testified fully to the physical facts which showed the force of the impact. It was undisputed that Mr. Marange told the driver of the truck, after the accident, that he was not hurt. It is seen that Mr. and Mrs. Marange were sitting in different positions in their car. Mrs. Marange was sitting sidewise in the seat and was thrown into the dashboard. Mr. Marange testified without objection that his back hurt a day or so after the accident. We do not believe that the further testimony as to his physical condition and diagnosis by the doctor of a sprained sacroiliac muscle would have shed any light on whether or not Mrs. Marange’s neck was seriously injured. The trial court did not abuse its discretion in refusing to admit this collateral evidence. Texas Employers Ins. Ass’n v. Scott, Tex.Civ.App., 233 S.W.2d 171. In any event in view of the determination by the jury that Mrs. Marange was injured, plaintiffs were not harmed by the exclusion of this evidence.

In their second point, plaintiffs complain of the introduction of evidence that Mrs. Marange had settled her claim growing out of the 1958 accident for approximately $3,500.00. Plaintiffs very carefully filed a motion in limine before the evidence commenced to prohibit defendant from referring to any prior claims, settlements or payments. This motion was overruled by the trial court. Both Mr. and Mrs. Marange were interrogated, over their objection, in regard to this settlement. The exact figure was never confirmed, although it was suggested by defendant, and Mrs. Marange admitted that $3,538.00 sounded about right. She indicated that sum was inadequate as she didn’t get much after paying her medical bills.

The admission of this testimony was error. The Supreme Court in St. Paul Fire & Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744, said: “The action of the court in excluding evidence of the sums of money obtained by Murphree in settlement of other claims was proper. The amount paid in settlement of a compensation claim cannot amount to proof of the extent of injury. The amount agreed upon in settlement, therefore, can have no bearing on the actual extent of the injury.” See City of Wichita Falls v. Chandler, 348 S.W.2d 48.

It is our duty, under Rule 434, Texas Rules of Civil Procedure, to examine the whole record to determine if the error of the trial court in the admission of this evidence amounted to such a denial of the rights of plaintiffs as was reasonably calculated to cause and did cause the rendition of an improper judgment in the cause. Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277; Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379; Calvert, The Doctrine of Harmless Error in Texas, 31 Texas Law Review 1.

The determination of whether this error is prejudicial or harmless, under the above test, presents a most difficult question under this record. The error occurred on a crucial matter, as it relates to the amount of compensation Mrs. Marange received for a previous neck injury. On the other hand, there is no showing that this settlement was ever alluded to by anyone or played any further part in this trial other than the brief questioning of Mr. and Mrs: Marange. The crucial issue in this case was the credibility of the medical witnesses. If the jury believed the testimony of plaintiffs’ doctors, that Mrs. Marange had suffered a ruptured cervical disc and that major surgery would be required to repair this injury, there would be no connection between the amount of damages to be awarded in this case and the prior settlement. The prior settlement has no relationship to the credibility of plaintiffs or their medical witnesses. It is our opinion, from an examination of the entire record, that the error was harmless.

Plaintiffs next complain of the admission into evidence, that Mrs. Marange had filed lawsuits over the 1958 accident as well as over the death of her daughter in 1961. There is no complaint over the introduction of evidence relating to these two events, but only of the filing of lawsuits. Plaintiffs asserted that the injury sustained in 1958 was aggravated, and testimony was offered by plaintiffs and defendant showing the effects of the 1958 injury, as well as the effect on Mrs. Marange’s nervous system of the accidental death of her daughter in a different accident, about six weeks after the July, 1961, accident.

Both parties recognize the rule to be as set forth in 23 Tex.Jur.2d, § 187, that: “Ordinarily, evidence of other acts or transactions between third parties or strangers to the cause, or evidence of other transactions between one of the parties to the cause and a stranger is inadmissible.” Defendant asserts that this rule has no application here, as Mrs. Marange’s mental condition was a vital issue in the trial, and it was shown by medical evidence that the above matters played a part in her mental condition. Plaintiffs introduced the testimony of Dr. Constant, a neurologist and psychiatrist, who testified that Mrs. Ma-range showed a history of emotional disturbances, and he diagnosed a part of her disability as resulting from depression over her condition. Defendant offered medical evidence that this emotional condition was caused by worry over other matters, including these two lawsuits.

It is our opinion that under the allegations and evidence in this case, this evidence was admissible. In Texas Employers’ Ins. Ass’n v. Thames, Tex.Civ.App., 236 S.W.2d 203, writ refused, where plaintiff was asserting injury to his nervous system, the court held that it was reversible error to exclude evidence that plaintiff’s eighteen-year-old son had caused the nervous condition by committing a crime. See Commercial Standard Insurance Co. v. Robinson, 137 Tex. 184, 151 S.W.2d 795; King v. Moberley, Tex.Civ.App., 301 S.W.2d 202.

The defendant called as a witness a doctor who had treated Mrs. Marange from 1947 through 1960, and plaintiffs urge that his testimony of her complaints was too remote and in part based on hearsay. This doctor operated a clinic and testified from the records of the clinic. Most of the entries were made by the witness personally, but some were made by other doctors associated with him in the clinic. These business records were admissible under Art. 3737e, Vernon’s Ann.Civ.Stats. The testimony related primarily to complaints leading up to and following a low-back operation in 1950. There was no connection shown with this condition and Mrs. Marange’s injury to the cervical vertabrae in 1961. However, no error is shown in the admission of this immaterial evidence, as Mrs. Marange testified, without objection, to the operation in 1950 and her treatment by this doctor from 1947 through 1960.

In view of the conflicting medical evidence, we cannot say that the amount of damages awarded by the jury was manifestly too small or contrary to the overwhelming preponderance of the evidence. The necessity for future medical treatment, as well as the amount of expense necessary as a result of Mrs. Marange’s injuries, as distinguished from unrelated conditions, was a disputed issue. There is no showing that the jury abused their discretion in determining the amount of damages to be awarded.

Plaintiffs’ complaint that defensive issues were improperly submitted does not demonstrate prejudicial error, in view of the fact that all these issues were answered favorably to plaintiffs. There is no prejudice shown in the issues alone.

Plaintiffs have failed to demonstrate prejudicial error by any of their assigned points, either individually or by the cumulative effect of all errors. The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    WESTERN ALLIANCE INSURANCE COMPANY, Appellant, v. Julia Shay JECKER, Appellee.
    No. 5516.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 23, 1963.
    Rebearing Denied Nov. 13,1963.

      Guittard & Henderson, Harry F. Maddin, Victoria, for appellant.
    Keys, Russell, Keys & Watson, Corpus Christi, Huson & Bissett, Refugio, for ap-pellee.
   CLAYTON, Justice.

The original opinion of this court in the above-styled and numbered cause handed down on the 10th day of October, 1962 (362 S.W.2d 137) has been, on instructions of the Supreme Court of Texas (369 S.W.2d 776) reviewed and further considered, and the following opinion is hereby rendered to supersede the original opinion rendered herein.

OPINION

This is an appeal from a judgment of the District Court of Refugio County, Texas in which appellee was awarded benefits under the Workmen’s Compensation Act against appellant, an insurance carrier, for the death of her husband, Lawrence K. Jecker, who succumbed from injuries received in an automobile collision which occurred on September 16, 1958. Appeal was originally perfected to the Court of Civil Appeals for the Fourth Supreme Judicial District at San Antonio and was transferred to the Eighth Judicial District at El Paso by order of the Supreme Court of Texas for the purpose of equalizing the docket.

Trial in the district court was to a jury. Certain matters having been stipulated, the trial judge confined his charge to three special issues. In answer to Special Issue No. 1, the jury found that at the time of the fatal accident the deceased was in the course of his employment with Bay Chevrolet, Incorporated, an automobile and appliance business of Palacios, Texas. In answer to Special Issue No. 2 the jury found that the plaintiff would suffer manifest hardship and injury if the compensation awarded, if any, were not paid in a lump sum, and the jury further found, in answer to Special Issue No. 3, that the deceased was not “in a state of intoxication” at the time of the accident. This last-mentioned special issue was deemed by the trial court to be necessary, under the evidence, by virtue of the provision of the Texas Workmen’s Compensation Law, Article 8309, Vernon’s Ann.Tex.Civ.St., section 1: “The term ‘injury sustained in the course of employment,’ as used in this Act, shall not include * * * (3) [a]n injury received while in a state of intoxication.”

After denying a motion for judgment non obstante veredicto, the trial court entered judgment for plaintiff on the verdict, from which judgment this appeal is taken.

Appellant’s Points of Error Nos. Two and Three are directed at the jury’s finding, in answer to Special Issue No. 1, that deceased was in the course of his employment at the time of the fatal accident, asserting that there was no evidence to support such finding and that the same was so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust and unfair.

Since these two points of error relate to the jury’s finding on Special Issue No. 1, they will be discussed first.

Inasmuch as Jecker suffered his fatal injuries while traveling on a public highway, whether he was in the course of his employment at the time is measured and limited by sections 1 and lb of Art. 8309, V.A. T.C.S. Section 1, after eliminating injuries caused under certain circumstances, provides that the term “injury sustained in the course of employment” shall “include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” Section lb, added in 1957, reads:

“Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course, of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

Special Issue No. 1 inquired whether Jecker was in the course of his employment at the time of his fatal accident. In connection with the special issue, the court gave an instruction defining “in the course of his employment” in the language of sections 1 and lb of Article 8309 as that language relates to the facts in the case. The jury was instructed that “in the course of his employment” meant “originating in the work, business, trade or profession of Bay Chevrolet, Incorporated, and in the furtherance of its affairs or business.” The instruction then continued as follows:

“However, an employee, while travel-ling on the highway in an automobile, is not considered as being in the course of his employment unless the transportation is paid for by the employer or unless the employee is directed in his employment to proceed from one place to another place.”

Finally, the instruction advised the jury that travel in furtherance of the business of the employer could not be the basis of a claim that the death occurred in the course of employment if the travel was also in furtherance of personal or private affairs, unless the trip would have been made had there been no personal or private affairs to be furthered and unless the trip would not have been made had there been no business of the employer to be furthered.

Before the amendment in 1957 of Article 8309, V.A.T.C.S., the Supreme Court of Texas in an opinion written by the now Chief Justice, in the case of American. General Insurance Company v. Coleman, 303 S.W.2d 370, sets out the following:

“The general rule is well settled that an injury incurred in the use of public streets or highways in going to and returning from the place of employment is not a compensable injury because not incurred in the course of the employment as required by Article 8309, Vernon’s Annotated Texas Statutes. (Citing cases). There are exceptions to the rule. An injury incurred in going to or returning from work is held to be in the course of a workman’s employment where the means of transportation is furnished by the employer. (Citing cases). So, also, where the employer pays another to transport the injured employee. Texas Employers’ Ins. Ass’n. v. Inge, 146 Tex. 347, 208 S.W.2d 867. An injury is held to be in the course of a workman’s employment if in going to or returning from his place of employment or his place of residence he undertakes a special mission at the direction of his employer, or performs a service in furtherance of his employer’s business with the-express or implied approval of his employer. (Citing cases). This exception to the general rule is well stated in the opinion of the Court in the case last cited, where it is said: ‘In Texas it is held that an accidental injury resulting from the hazards of the public streets is compensable if the employee at the time of the injury is actually engaged in the performance of a duty required by his contract of employment, or is engaged upon some mission incidental to his employment, of substantial benefit to, and with the express or implied approval of, his employer.’ [Associated Indemnity Corp. v. Bush, 5 Cir.] 201 F.2d [843] 844.” See also: St. Paul Mercury Ins. Co. v. Dorman, 341 S.W.2d 480 (Civ.App., 1960, ref’d, n. r. e.).

The general rule appears to be even broader than that applied under the circumstances of the Coleman case. It is that injuries incurred by a workman while traveling on public streets and highways are not incurred in the course of employment. But there are exceptions to that rule. One of the exceptions is when injury occurs while the workman is traveling on the public Streets or highways pursuant to express or implied requirements of his employment contract. Smith v. Texas Employers’ Ins. Assn., 129 Tex. 573, 105 S.W.2d 192; Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238; Jones v. Texas Indemnity Co. (Tex.Civ.App.), 223 S.W.2d 286 (wr.ref’d.); Federal Underwriters Exchange v. Lehers, 132 Tex. 140, 120 S.W.2d 791.

This exception was recognized in the Coleman case by a quotation from Associated Indemnity Co. v. Bush, 5th Cir., 201 F.2d 843. The rationale of it is that since the workman’s employment requires him to subject himself to the risks and hazards of streets and highways, his injuries grow out of his employment. Smith v. Texas Employers’ Ins. Assn., supra. The exception was well established before the adoption of section lb of Article 8309 by the Legislature, and it must be assumed that the section was enacted with full knowledge of it.

Was the exception abolished by Section lb of Article 8309? We think not. It has been recently recognized in Texas General Indemnity Co. v. Bottom, Tex.Sup., 365 S.W.2d 350, 353, that the Legislature intended by the enactment of section lb “to circumscribe the probative effect that might be given to the means of transportation or the purpose of the journey rather than to enlarge the definition (of “injury sustained in the course of employment”) found in Section 1.” But the Legislature surely did not intend to provide that an employee whose employment requires him to travel at his own expense in his own automobile on streets and highways, either constantly or intermittently, should be denied compensation if accidentally injured while thus exposed to risks growing out of his employment. Any such holding would be wholly unjust to salesmen, servicemen, repairmen, deliverymen, and a host of others who may be required to use their own automobiles in their work, and would be a strict rather than a liberal interpretation of the Workmen’s Compensation Act.

It is to be noted that one of the exceptions to the provision in section lb that “transporation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment” is when “the employee is directed in his employment to proceed from one place to another.” We construe this exception to include those situations in which the employee proceeds from one place to another under the terms of an employment which expressly or impliedly requires that he do so to discharge the duties of his employment. Having thus construed the statute, we give the same meaning to that part of the trial court’s instruction which advised the jury that “an employee, while travelling on the highway in an automobile, is not considered as being in the course of his employment * * * unless the employee is directed in his employment to proceed from one place to another place.”

Our determination of whether there is in the record evidence of probative force that Jecker was in the course of his employment at the time of his fatal accident is made under governing law as announced above. There is evidence that he was in the course of his employment if there is evidence that (1) he was traveling on the highway pursuant to express or implied provisions of his employment contract that he do so in performance of his duties, and (2) that he would have made the trip had there been no personal or private affairs to be furthered and would not have made it had there been no business of his employer to be furthered.

Bay Chevrolet, Inc., is a family-owned corporation with Charles Luther, owner of ninety per cent of its stock, as president and manager. It operates an automobile business and an electrical appliance business, about four blocks apart, in Palacios. It has a General Motors’ franchise for electrical appliances, including Frigidaire ranges.

Jecker had been in the employ of Bay Chevrolet for about eleven months at the time of his death. He was in charge of sales, delivery and servicing of appliances, was paid a salary of $200.00 per month, plus a commission or bonus, and, with the aid of Luther's sister who performed office duties, operated the appliance business under loose supervision of Luther. He worked six days a week. His regular hours were from eight to five, but the arrangement of his work schedule was left largely to him. No mileage limitation was put on the area in which he could sell appliances by either general instructions or the franchise, but his normal trade area was within a radius of twenty miles of Palacios, and he understood that. He once delivered and installed a washing machine, at Luther’s request, in the apartment of Luther’s son in Austin, a distance of approximately one hundred and sixty miles.

In March of 1958, Jecker, with Luther’s permission and approval, sold a Frigidaire range to Wallace Shay, Mrs. Jecker’s nephew. Shay lived in Refugio, some eighty miles distant from Palacios. Jecker delivered and installed the range, making the trip in a company truck. The range was new. Under Frigidaire’s written warranty, the manufacturer agrees that for one year it “will, at its election, repair or replace without cost to the owner or user, through an authorized servicing dealer or f. o. b. the factory, any part found by the Manufacturer to be defective * * * ”

On Tuesday, September 16, 1958, Jecker went to Refugio to the home of Wallace Shay where he, with the aid of Shay, replaced a broken glass control panel and a surface burner of Shay’s range with new parts purchased and furnished by Bay Chevrolet, Inc. While traveling on a public highway on his return trip to Palacios, his automobile collided with another automobile at about 7:30 p. m. and he suffered injuries from which he died.

The facts detailed to this point may be accepted as undisputed. Western Alliance’s assertion that Jecker was not injured in the course of his employment rests on testimony of Charles Luther. Luther testified that while the range was sold by Jecker to Shay with his knowledge and consent, it was sold at a reduced price and with the understanding between him and Jecker that Bay Chevrolet would replace any defective parts but would not pay installation or servicing charges; that Bay Chevrolet had replaced a broken glass panel on the range in June but had done so as a matter of company policy and not under or by virtue of a warranty; that he was aware that Shay had communicated with Jecker at a later date with respect to replacing a broken glass control panel and a surface unit switch, and the company ordered replacement parts; that the parts were received on Tuesday, September 9, and Jecker told him that he would be happy to go to' Refugio and install the parts on his own time; that Jecker had planned to go on Sunday, September 14th, but told him later (probably on Monday, 15th) that he did not go on Sunday, but wanted to go to attend to some personal business and would take the new parts for the range with him and replace the broken or defective parts on a day off; that he said, “Okay, go ahead”; that he knew Jecker was going to make the trip to Refugio, but he did not know on what day he was going and did not authorize him to go on company time to replace the broken or defective parts of the range.

Luther’s testimony thus far detailed indicates that Jecker’s trip to Refugio was not made for the purpose of performing duties imposed on him by express or implied terms of his employment. But there is other evidence in the record tending to prove that it was.

Luther testified that “it was Mr. Jecker’s job to service any appliances that was (sic) sold through Bay Chevrolet Co.,” and further as follows:

“Any new merchandise you sell you have to service it for one year or you have to pay into Frigidaire Division an amount agreed upon and suggested by Frigidaire Division in order to cover normal service within warranty. If you sold an item at retail that was considered to be covered by service, then you would naturally have to service it even if you sold it in Alaska or you would have to make arrangement with Frigidaire Division to have it serviced by a dealer closer to the place of the user.”

He testified positively that the range sold to Shay was new and carried a one-year warranty.

There is other evidence that the range was sold with full warranty and that Luther recognized that Bay Chevrolet was obligated to replace defective parts and to furnish necessary labor or service. Shay testified that when the range was delivered, he was given a booklet containing the written warranty. The glass panel was broken when the stove was first installed or shortly thereafter, and Jecker, with knowledge and approval of Luther, made a trip to Refugio in June to install a new one furnished without charge by Bay Chevrolet. Bay Chevrolet paid the gasoline expense of the trip. Work orders were prepared by Bay Chevrolet for replacement of the glass panel in June and for the work done on September 16th. On the back of the work order for September 16th is a notation of items charged out to the particular job as white lacquer, switch, surface unit, and glass control panel, and their cost to Bay Chevrolet; no charge is shown for labor. In the space for billing in the work orders for both the June and September work appears the word “warranty”.

The evidence and the reasonable inferences therefrom must be viewed most favorably in support of the jury’s finding under Special Issue No. 1 that at the time of the fatal accident the deceased was in the course of his employment. Under the rule above stated, we are satisfied that there is in the record evidence of probative force that Jecker’s trip to Refugio on the date of his fatal accident was in the furtherance of his employer’s business and in the performance of duties imposed by his contract of employment. We are further satisfied that there is evidence of probative force that he would have made the trip had there been no personal or private affairs to be furthered and would not have made it had there been no business of his employer to be furthered.

The jury was not required to believe Luther’s testimony that Jecker had agreed that the manufacturer’s warranty would not apply to the range sold to Shay; there is strong evidence, including Luther’s own testimony, that it did. Neither was the jury required to believe that Jecker told Luther that he had some personal business in Refugio and would make the trip and replace the defective or broken parts of the range on his own time. He did, of course, visit with his wife’s relatives while in their home. The evidence also reflects that after leaving the Shay home he visited a recreation club in Refugio and loitered there for some time, drinking beer and playing pool, before beginning the return trip to Palacios. But the evidence is far from conclusive that visiting his wife’s relatives and visiting the recreation club were the main or even motivating factors, in making the trip. There is no evidence that Jecker attended to any personal business on the trip.

Under governing law as announced herein, we hold that there is in the record evi-dcnce of probative force supporting the jury’s finding that Jecker was in the course of his employment when he was injured. We, accordingly, overrule appellant’s Points of Error Nos. Two and Three.

Appellant’s Point of Error No. One cites error on the part of the trial court in not submitting to the jury a definition of “state of intoxication” as that matter was submitted in Special Issue No. 3.

Under the provisions of section 1, Article 8309, injuries received while in a state of intoxication are not' sustained in the course of employment. A defense urged to this suit was that Jecker was in a state of intoxication at the time of his injury. We have concluded that the trial court did not err in failing to submit the requested definition, since the phrase “state of intoxication” is commonly known and understood, and such point of error is accordingly overruled.

Points of Error Nos. Six and Seven maintain that there is no evidence to support the jury’s finding in answer to said Special Issue No. 3, that the deceased was not in a state of intoxication at the time of the fatal accident, and that such finding is so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust and unfair. We have carefully reviewed the entire record and have concluded that the evidence is sufficient to sustain the jury’s finding on Special Issue No. 3, and these points of error are likewise overruled.

Appellant’s Points of Error Nos. Four and Five cite error on the part of the trial court in rendering judgment for plaintiff on the basis of the jury’s finding in answer to Special Issue No. 2 that plaintiff would suffer manifest hardship and injury if the compensation awarded, if any, were not paid in a lump sum, for the reasons that such finding was not supported by any evidence, or was so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust or unfair. Mrs. Jecker, the plaintiff, had four grandchildren, her own children being over 21 years .of age, so it may justifiably be assumed that she was of somewhat advanced years of age; she began teaching school after the death of her husband, from which occupation she derived some income and had a “little income” from “oil and gas”, and some additional income from other sources. Her testimony was that if she did not receive a lump sum as compensation for the death of her husband it would work an undue hardship on her because “I might have to teach school longer. Well, I would say since I am old I can use a lump sum better than I can over a period of years ⅜ * * If I were younger I would rather have the installments along over a period of years but I don’t have too many years left and there are things I would rather like to do now if I have the money rather than have it coming in small installments.” We feel that from all the evidence, viewed in a light most favorable to the jury’s finding, that the jury was justified in arriving at its conclusion of hardship. Quoting from Federal Underwriters Exchange v. Brigham, Tex.Civ.App., 184 S.W.2d 849:

“The statute leaves it to the sound discretion of the court or jury to determine as to what constitutes a ‘special case’ authorizing the award of a lump sum, and their findings should not be disturbed unless a manifest abuse of discretion is shown. Texas Employers’ Ins. Ass’n. v. Downing, Tex.Civ.App., 218 S.W. 112, at page 120, writ refused; Consolidated Underwriters v. Saxon, supra [Tex.Com.App., 265 S.W.2d 143]; Indemnity Ins. Co. of North America v. Wright, Tex.Civ.App., 69 S.W.2d 438, writ dismissed.”

We find no manifest abuse of discretion here, and must therefore overrule appellant’s Points of Error Nos. Four and Five.

Having disposed of all points of error unfavorably to appellant, the judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Jimmy W. HARBUCK et ux., Appellants, v. Daniel Puente RAMOS, Appellee.
    No. 4171.
    Court of Civil Appeals of Texas. Waco.
    Oct. 31, 1963.
    Rehearing Denied Nov. 14, 1963.
    Lieck & Lieck, San Antonio, for appellants.
    Beckmann, Standard, Wood & Vance, San Antonio, for appellee.
   McDONALD, Chief Justice.

Plaintiffs instituted this suit against defendants to recover damages for personal injuries, doctor and medical bills, and automobile damages incurred by plaintiffs as a result of being struck from the rear by defendant’s automobile while plaintiffs’ automobile was stopped at a red light. Defendant filed a general denial, but prior to trial admitted liability. Trial was on damages only, and was to a jury. The jury, in answer to issues submitted, found:

1) The value of plaintiffs’ automobile immediately prior to the collision was $525.
2) The value of plaintiffs’ automobile immmediately after the collision was $125.
3) Plaintiff, Jimmy Harbuck, sustained damages of $100. (Such damages by the Court’s instruction, included physical pain and mental suffering; future physical pain and future mental suffering; and doctor bills).
4) Plaintiff, Mrs. Harbuck, sustained damages of $150. (Such damages, by the Court’s instruction, included physical pain and mental suffering, future physical pain and future mental suffering; and doctor bills).

The Trial Court rendered judgment for plaintiffs on the foregoing verdict for $650.

Plaintiffs appeal, contending that the jury’s answers to issues 3 and 4 award inadequate damages, and are against the great weight and preponderance of the evidence and are manifestly unjust.

Plaintiffs were seated in their car, stopped at a red light, when defendant hit their car in the rear. As a result of the collision, both Mr. and Mrs. Harbuck went to the doctor. Mrs. Harbuck’s doctor bill was $110. (which included a $25. charge for a report written for her lawyer). The X-ray taken of Mrs. Harbuck was negative, and a neurological examination was normal. Mrs. Harbuck testified as to considerable pain and suffering. The doctor testified she had no muscle spasm, no hematoma and no contusion. Mr. Harbuck’s doctor bill was $85. (which included a $25. charge for a report written for his lawyer). Mr. Har-buck testified as to considerable pain and suffering and that he saw the doctor 4, 5, or 6 times. The doctor testified he saw him only 2 times. X-ray taken of Mr. Harbuck was negative, and a neurological examination was normal. Neither plaintiff required hospitalization, a brace or bandages. There is no evidence of expense of money for medicines. The jury awarded Mr. Harbuck $100. for his injuries, and Mrs. Harbuck $150. for her injuries. No complaint is made of the $400. awarded for damages to the plaintiffs’ automobile.

The jury heard the testimony of plaintiffs, and of the medical witness, observed their demeanor and conduct on the witness stand, and having carefully weighed the testimony, returned their finding into court. The credibility of witnesses, and the weight to be given their testimony are questions for the jury. This is especially true with respect to testimony of parties or other persons interested in the litigation. Matters of pain and suffering, and future pain and suffering, are necessarily speculative, and it was peculiarly within the province of the jury to resolve these matters, and set the amount of such damages.

From the record as a whole, we are unable to say that inadequate damages were awarded, or that the findings of the jury are against the great weight and preponderance of the evidence.

Plaintiffs’ points and contentions are overruled, and the judgment of the Trial Court is Affirmed.


author: WILSON, Justice.

text:
    INTERSTATE LIFE INSURANCE COMPANY, Appellant, v. Tom E. TURNER et al., Appellees.
    No. 4181.
    Court of Civil Appeals of Texas. Waco.
    Oct. 24, 1963.
    Rehearing Denied Nov. 14,1963.

      George F. Manning, San Antonio, for appellant.
    Fred Woodley, Stahl & Sohn, Pfeiffer & Gittinger, San Antonio, for appellees.
   WILSON, Justice.

Judgment setting aside a trustee’s deed and sale proceedings under a deed of trust was rendered after a nonjury trial. Findings and conclusions were filed. We reverse and remand in part, and in part reverse and render.

Willow Springs Development Co. and another executed a $48,500 vendor’s lien note, additionally secured by a deed of trust, which was assigned to appellant Interstate Life Insurance Co. The note was payable in five installments of $9700 each, plus accrued interest, due October 19, 1960, and on October 19th annually thereafter. The first installment was not paid when due. On November 29, 1960 appellee Turner wrote Interstate that he had signed an earnest-money contract to purchase the land described in the deed of trust, that the transaction was being handled by a title company, that he had applied for a zoning change, that he would assume the balance of the debt, and that he had been informed that Interstate “is willing to bear with” Willow Springs “these few days”, providing he gave written assurance he would take the property contingent on his obtaining the zoning change and a clear title. His letter recited he was cognizant the first payment was “due on November 24, 1960.”

December 1, 1960 the title company wrote Interstate, at Turner’s request, that it would pay the October installment when the zoning application was approved and funds were available. On December 2, 1960 Interstate wrote Turner, stating the total principal and interest due on the delinquent installment to December 15, and the amount of daily interest to be added thereafter. The court found, and the evidence shows the amount of interest was erroneously computed as being more than the note actually called for. Interstate’s letter said, “In view of the sale, we agree not to take any foreclosure action if payment of the delinquent installment and accrued interest is paid to us by December 18, 1960. It is our understanding that you will see that a check will be forwarded by the title company as a part of your closing proceedings. If payment is made as here requested, the note will be in a current status and no longer delinquent. This letter shall not be construed to in any manner constitute a release of lien.” On December 22, 1960 the title company sent Interstate a check representing the amount of the October 19, 1960 installment of principal and “interest to December 28, 1960.” The interest was computed and paid to the latter date by the title company, anticipating delivery delay during the Christmas holiday season. The letter of transmittal stated, “The remaining payments when due will be made” by Turner. The next installment was not paid on October 19, 1961 as the note provided, and Interstate requested the trustee to proceed with sale under the deed of trust, which was held December 5, 1961. Interstate was the purchaser for $40,801. Although the evidence shows an unsuccessful effort was made to locate and make demand for payment on the makers, no presentment, demand or notice was given to Turner, who had assumed payment of the note.

No attack is made on the regularity of proceedings by which the trustee made sale of the land under the power of sale in the deed of trust. Appellees defend the judgment and urge affirmance on three grounds: (1) The note was not in default when the trustee’s sale was held because Interstate had agreed to change the annual installment due date from October 19th to December 27. (2) The trial court correctly held that Interstate was required to present the note to, and make demand of Turner for payment before proceeding to foreclose under the deed of trust. (3) Turner “at all times in good faith believed the second annual installment was due on December 28, 1961, and such belief was due to an honest and justifiable mistake on his part”; and the trial court therefore correctly concluded that Turner’s mistake “calls for the exercise of this Court’s equity powers to prevent a manifest injustice”, and appellant is estopped. These are substantially the conclusions specified by the trial court as the basis for judgment.

(1) Appellees’ argument that Interstate had agreed and contracted to change the due date of the October 19, 1961 and subsequent installments is based primarily on the correspondence above summarized. Ap-pellees emphasize the language in Interstate’s letter to Turner of December 2 that “if payment is made as here requested, the note will be in current status and no longer delinquent”, urging that since Interstate received payment December 27, 1960, the next installment would not be due for one year from that date. They state the amount remitted to Interstate by the title company, computed to December 27, 1960, was $53.44 too much, appellant having erroneously computed the daily interest on the entire principal; and this was consideration for the extension. They further claim that because appellant’s bookkeeper inserted in its ledger three parallel perpendicular tabulating machine marks in a second ledger column headed “date due”, adjacent to a first column headed “date”; and because the bookkeeper had posted “Dec. 27, 60” in the “date” column when the initial installment payment was received, the three perpendicular marks are to be interpreted as “ditto marks”, establishing a future due date different from that provided in the note. They also point to testimony that appellant’s comptroller had made a pencil notation on the ledger sheet, “2,522 interest 1961”, and that these figures represent the amount of interest for a full year. The trial court found as a fact therefrom that “according to Interstate’s records, December 27, 1961 was the due date of the second annual installment, and it had agreed, for a valuable consideration, to change the due date. There is no testimony by Turner of any such agreement, or from which it can be implied.

Neither from the foregoing nor from any other favorable circumstance in the record do we find any probative evidence of a contract or agreement to change the due date of the October 19, 1961 installment, and appellant’s first point is sustained. See Tsesmelis v. Sinton State Bank, Tex.Com.App., 53 S.W.2d 461, 462.

(2) The note was payable in “San Antonio, Bexar County, Texas”, and provided, “Each maker, surety and endorser of this note expressly waives all notices, demands for payment, presentations for payment, notices of intention to accelerate the maturity, protest and notice of protest, as to this note and as to each, every and all installments hereof”. Turner assumed payment of the note in the deed to him. The deed of trust provided that in the event of default, “grantors hereby expressly waiving presentment and demand for payment”, the beneficiary may elect to accelerate maturity. The trial court concluded, and appellees insist that since the latter clause made acceleration optional, the holder cannot, without demand and presentment for payment, exercise such option and foreclose under the power of the deed of trust, since no specific place of payment is expressed in the note or deed of trust.

In our opinion demand and presentment were not necessary. The note expressly provided that notice of intention to accelerate maturity, demand and presentment for payment were waived. Art. 5937, Sec. 82, Vernon’s Ann.Tex.Stats, provides that presentment for payment is dispensed with by express waiver. The waiver is valid and effective. Sydnor v. Gascoigne, 11 Tex. 449, 456; Anderson v. Ladd, 313 Tex. 479, 115 S.W.2d 608, 613; Sowell v. Federal Reserve Bank of Dallas, Texas, (1925) 268 U.S. 449, 45 S.Ct. 528, 69 L.Ed. 1041; Cato v. Jeffreys, Tex.Civ.App., 50 S.W.2d 413; Linthicum v. Angelo Furn. Co., Tex.Civ.App., 60 S.W.2d 315, 316; 9 Tex.Jur.2d Sec. 185, p. 207; Brannan, Negotiable Instrument Law, Sec. 110; Jones, Mortgages Sec. 74.

In Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614, 5 A.L.R.2d 963 it was held that where the acceleration clause in the note leaves acceleration optional with the holder, “such holder cannot, without presentment for payment, exercise his option to declare the whole amount due, if no specific place of payment is expressed in the note, until it has been presented to the payor at the latter’s known place of business”. In that case, however, demand was made; there was no waiver of demand, presentment, or notice of acceleration in the note; and the opinion noted the right to have the note exhibited could be waived. In other cases relied on by appellees, and those we have examined holding demand and presentment are prerequisite, there was no express waiver as in this case. (E. g., Gresham v. McElroy, Tex.Civ.App., 309 S.W.2d 84, 91; Parker v. Mazur, Tex.Civ.App., 13 S.W.2d 174, 175, writ granted and dism. agr.; Ross v. Isaacs, Tex.Civ.App., 54 S.W.2d 182, 196, writ dism.).

(3)Appellees say that since Turner in good faith believed the second annual installment was due December 28, 1961, “due to an honest and justifiable mistake on his part”, appellant “should be estopped” from taking advantage of his mistake. Turner testified he “had an idea in mind” that the second installment was due “around Christmas or thereafter” because he closed the deal for purchase of the property and assumption of the note about that time in 1960. After this suit was filed Turner tendered a check dated January 26, 1962 to appellant in payment of the 1961 principal installment and interest. Appellant declined to accept the payment, having previously advised it would so decline. Turner then offered to pay the entire balance, which offer was also declined.

We find no basis for estoppel in the case, or for exercise of the trial court’s equity power to set aside the sale. Thornton v. Goodman, Tex.Com.App., 216 S.W. 147; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, 837, writ refused.

Appellant assigns error to failure of the trial court to render judgment for deficiency on its cross-action against Turner and the makers of the note, and asks us to render judgment thereon. Ap-pellees do not reply to the point. The trial court’s findings relating to the elements of the cross-action are based on the conclusion the note was not in default. The findings are insufficient as a basis for judgment, and all data for judgment are not available. The cross-action for deficiency judgment is severed, and remanded to the trial court.

The remainder of the judgment is vacated. Judgment is here rendered that appellees take nothing, and that appellant have judgment for title and possession of the property described in the trustee’s deed.


author: POPE, Justice.

text:
    Mary Lee DAVIS et al., Appellants, v. Roger C. HILL, Appellee.
    No. 14145.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 16, 1963.
    Rehearing Denied Nov. 13,1963.
    Sidney P. Chandler, Corpus Christi, for appellants.
    Bruce Waitz, V. H. McFarland, San Antonio, for appellee.
   POPE, Justice.

This is a venue case under Section 5, Article 1995, Vernon’s Ann.Civ.Stats. Roger C. Hill sued Mary Lee Davis Chandler, individually and as executrix of the estate of Floyd R. Purvis. Mrs. Chandler’s husband is joined pro forma. Plaintiff, Hill, alleged a written equipment lease contract by a partnership composed of Floyd Purvis and Mary Lee Davis Chandler. Mrs. Chandler filed her plea of privilege and in it denied the partnership under oath. She filed no plea as executrix. Upon the hearing, plaintiff, Hill, introduced the written contract and rested. The order must be reversed, because plaintiff did not overcome the denial of partnership.

Purvis executed the equipment lease contract with Roger C. Hill in these words, “Floyd R. (Pat) Purvis & Mary Lee Davis (feme sole) dba, X-Pert Secretarial Service, Lessee, By Floyd R. Purvis, Partner.” For the issue of partnership to arise on a venue hearing, the defendant must deny partnership under oath in the plea of privilege. Moore v. James, Tex.Civ.App., 242 S.W.2d 958. If this is done, the plaintiff must then connect the one so denying partnership with the partnership obligation. Goldfarb v. Glazer’s Wholesale Drug Co., Tex.Civ.App., 274 S.W.2d 460; Clark, Venue in Civil Actions, p. 45. There was no effort to do this.

Plaintiff Hill’s only contention on this lack of proof of partnership is that it was not specifically denied under oath. Defendant Mary Lee Davis Chandler pleaded under oath: “These defendants deny that X-PERT SECRETARIAL SERVICE CO. was a general partnership between FLOYD R. PURVIS, deceased and MARY LEE CHANDLER on the dates alleged in the Plaintiff’s First Amended Original Petition, * * * and the Defendants deny that they were ever partners with FLOYD R. PURVIS, deceased, doing business as X-PERT SECRETARIAL SERVICE CO.” This was specific enough. 44 Tex. Jur.2d, Partnership, § 115.

The order is reversed and remanded with instructions that the cause against Mary Lee Davis Chandler, joined by her husband, Sidney P. Chandler, be severed and transferred to Nueces County, pursuant to the provisions of Rule 89, T.R.C.P.


author: BARROW, Justice.

text:
    Calvin F. WALLACE, Appellant, v. Miriam Young WALLACE, Appellee.
    No. 14141.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 2, 1963.
    Rehearing Denied Oct. 30, 1963.

      Mahoney, Shaffer & Hatch, Corpus Christi, for appellant.
    Wiley L. Cheatham, Cuero, for appellee.
   BARROW, Justice.

This is an appeal by Calvin F. Wallace as to parts of a judgment rendered in a divorce action brought by his wife. After a full hearing before the court without a jury, judgment was rendered granting Miriam Young Wallace a divorce, awarding her custody of the four minor children born of this marriage, partitioning the community estate, and ordering appellant to contribute $50.00 per month to the support of each child under eighteen years of age.

Appellant asserts two errors: 1. The trial court abused its discretion in requiring appellant to contribute to the support of the children, under the undisputed evidence that appellant is totally disabled and has no property or source of funds from which to make and maintain said contributions; 2. The trial court had no authority to divest appellant of title to three insurance policies on his life.

Appellee has moved to dismiss this appeal on the ground that appellant is estopped to assert error in the judgment because he voluntarily accepted benefits under this judgment by subsequently conveying to his brother certain real estate awarded to appellant in the judgment. In Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004, the Supreme Court recognized the general rule that a litigant cannot treat a judgment as both right and wrong, and if he voluntarily accepts the benefits of a judgment, he cannot afterwards prosecute an appeal therefrom. The narrow exception to this rule was set forth, that “where the reversal of a judgment cannot possibly affect an appellant’s right to the benefits secured under a judgment, then an appeal may be taken.” See, Nixon v. Nixon, Tex.Civ.App., 348 S.W.2d 438.

It is our opinion that the two points asserted by appellant fall within this exception. There is no indication in the record or contention by appellee that the amount of child support contributions is related to the partition of the community property. Appellant urges that the record establishes his inability to contribute child support at this time. The trial court ordered that the three life insurance policies in question be transferred to appellee in trust for the minor children, and further ordered that if this transfer be invalid, the amount of the cash surrender value should be awarded to appellee. Appellant concedes that the trial court has the authority to award appellee judgment for the amount of the cash surrender value of the policies as of the time of the divorce. It is seen that neither of these points would require a remand of the case. Rather, if appellant should prevail on either point, the judgment of the trial court would properly be reformed. We therefore overrule appellee’s motion to dismiss this appeal.

Appellant’s first point must fail, as the record does not establish that he has no source of funds with which to make the child support contributions. Prior to May 3, 1957, appellant was engaged in the practice of veterinary medicine and the parties accumulated a substantial community estate. On this date appellant sustained an accidental injury to his back when a cow fell on him. Under the evidence introduced at this trial, he has been totally disabled since that time and will continue to be so disabled until he has an operation on his back. He testified that he plans to have the operation when the divorce case is settled and hopes to resume a limited practice at that time. Until then, he urges that he will have virtually no income and is unable to contribute to the support of his children.

In the division of the cash on hand, the trial court ordered that $2,675.00 be paid into the registry of the court and disbursed by the clerk in payment of appellant’s child support obligations. This would satisfy the judgment for over one year.

At the time of his accidental injury, appellant was insured by a policy of accident and sickness insurance which, among other benefits, provides for the payment of $400.00 per month while he is totally disabled. He received these benefits until February, 1962, when the payments were suspended pending further investigation of appellant’s physical condition. At the time of the trial, in August, 1962, appellant’s attorney was trying to collect the past due payments. Appellant urges that these benefits terminate under the policy after five years, but this is disputed by appellee. The policy was introduced in evidence and provides: “Payments ($400.00 per month) shall continue to be made while the member remains totally disabled. However, unless the disability results directly and independently of all other causes, from accidental bodily injuries sustained while insured, payments shall be limited to 5 years or until his 72nd birthday, whichever is the shorter period, for any one continuous period of disability.” The evidence supports the trial court’s implied finding that since appellant was disabled as a result of accidental bodily injuries, the appellant will receive $400.00 per month so long as he is totally disabled. Any material change in this situation after the operation, would be a proper matter for determination at that time, under provisions of Art. 4639a, Vernon’s Ann.Civ. Stats. The trial court did not abuse its discretion in ordering appellant to contribute to the support of his children.

Appellant next asserts that the trial court did not have the legal authority to divest him of title to three life insurance policies. These policies, although on his life, were admittedly a part of the community estate. This contention is not without substantial merit in that it has been held that the court should not attempt to enforce any variation of the relations between insured and insurer while the insurance contract is in process of performance. Russell v. Russell, Tex.Civ.App., 79 S.W.2d 639. In Locke v. Locke, Tex.Civ.App., 143 S.W.2d 637, it was held that the cash surrender value of a policy was a community estate asset and that the trial court properly awarded the wife judgment for an amount equal to one-half of the cash surrender value of the policies. This Court recognized the above rule in Russell v. Russell, supra, and held that the wife had no right of control over the policies, and the court would have no authority to compel Locke to surrender the policies for collection of the cash surrender values, or otherwise to control the contract between the insured and the insurer.

Cox v. Cox, Tex.Civ.App., 304 S.W.2d 175, substantially broadened the rights of the community estate in a life insurance .policy. Mrs. Cox sued her former husband for fraudulently misrepresenting material facts in the inventory filed in the prior divorce case in that he had withheld information of a paid-up life insurance policy. It was shown that a loan against the policy cancelled out the cash surrender value. 'The court, after a full review of the authorities, concluded that there was now no sound basis why the value of life insurance •coverage, as well as the cash surrender value, might not be considered in a property •division between parties to a divorce action :and that the coverage evidenced by the policy had a value which was an asset of the community estate of the parties.

It is our opinion that significant changes "have been made in the law applicable to this situation so as to destroy the legal basis for the rule set forth in Russell v. Russell, supra. The Supreme Court in Womack v. Womack, 141 Tex. 299, 172 S.W.2d 307, expressly overruled the rule, which was previously recognized, that policies of life insurance were not “property” within the meaning of Art. 4619, Vernon’s Ann.Civ. Stats. The Court cited with approval the ■statement of Mr. Justice Holmes in the case of Grigsby v. Russell, 222 U.S. 149, 32 S.Ct. 58, 56 L.Ed. 133, that: “[L]ife insurance has become in our days one of the best recognized forms of investment and self-compelled saving. So far as reasonable safety permits, it is desirable to give to life policies the ordinary characteristics of property.” See also Art. 23, Vernon’s Ann.Civ.Stats.; XX Texas Bar Journal 691.

Prior to the passage of an Act by the 53rd Legislature on May 26, 1953, it was well established case-law in this State that a divorced wife did not have an insurable interest in the life of her former husband. Whiteselle v. Northwestern Mut. Life Ins. Co., Tex.Com.App., 221 S.W. 575. This rule was changed by the legislative Act designated as Art. 3.49-1, Texas Insurance Code, Vernon’s Ann.Civ.Stats, which provides that any person designated as a beneficiary by the insured in a life insurance policy or to whom a life insurance policy is transferred or assigned, has an insurable interest. McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898; 32 Texas Law Review 346. This Act further authorizes the transfer or assignment of a life insurance policy to any extent not prohibited by the terms of the policy. It is significant that the policies in question do not prohibit any written assignment and there is nothing in this record to show any objection by the life insurance companies involved to the order complained of by appellant.

Article 4638, Vernon’s Ann.Civ.Stats., directs the trial court granting a decree of divorce to order a division of the community estate in such a way as the court deems just and right. The life insurance policies in question were clearly community property and an important part of the community estate. The courts now recognize that life insurance is a common article of present day commerce and plays an important part in the economy of the nation and the financial security of individual families. Womack v. Womack, supra; Cox v. Cox, supra. In our opinion, it would seriously restrict the trial court’s ability to fairly partition the community estate if he had no power to divest the named insured of title to life insurance policies which are an integral part of the community estate. Neither the Texas Insurance Code nor the insurance contract prohibits such an assignment. Allen v. Allen, Tex.Civ.App., 363 S.W.2d 312, illustrates the contrary situation in that there the Railroad Retirement Act prohibited an assignment of future retirement benefits. It is conceded that the policies are a valuable community asset and that because of the poor health of appellant it would not be prudent to surrender the policies for their cash surrender value.

It is therefore our opinion that the trial court had the legal authority to order all interest in the three life insurance policies to be transferred to the appellee and held in trust for the benefit of the children born of this marriage.

The judgment is affirmed.


author: MURRAY, Chief Justice.

text:
    George H. SEELE, Jr., Appellant, v. Connie Mack SEELE, Appellee.
    No. 14128.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 18, 1963.
    Rehearing Denied Oet. 16,1963.

      Louis E. Marshall, Geo. H. Seele, San Antonio, for appellant.
    Raymond H. Williams, Green, Green & Wiley, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is an appeal from a contest of the will of George H. Seele, deceased. The will was dated September 11, 1926, and probated some thirty-five years later on March 16, 1961, the testator having died on October 8, 1960. The proponent and sole beneficiary of said will is Connie Mack Seele, the surviving wife. The contest was brought in the County Court of Bexar County by George H. Seele, Jr., son of the testator by a former marriage, and there was an appeal perfected by contestant to the district court. Upon a jury verdict favorable to proponent, judgment was entered in the district court admitting the will to probate, from which judgment contestant brings this appeal.

Appellant duly and timely filed an affidavit under the provisions of Rule 355, T.R.C.P., showing that he was unable to pay the costs of appeal or any part thereof, or to give security therefor. This affidavit was contested by the court reporter and the appellee, Connie Mack Seele. The trial court, after notice and hearing, sustained appellant’s affidavit and allowed the appeal without cost bond, and ordered the court reporter to prepare a free statement of facts in “narrative” form, as is provided for by Rule 380, T.R.C.P.

Appellant’s first complaint is that he did not receive a statement of facts in question and answer form, showing his informal hills of exception to the rulings ■of the court which were against him. We overrule this complaint, because under the statutes and court rules an indigent person appearing under the provisions of Rule 355, in forma pauperis, is only entitled to a “narrative” statement of facts. Ackerson v. Farm & Home Savings & Loan Ass’n of Missouri, Tex.Civ.App., 71 S.W.2d 381. That opinion was written under the provisions of Articles 2261 and 2278a, Vernon’s Ann.Civ.Stats., but as those provisions were brought forward by Rules 355 and 380, T.R. C.P., it is now applicable to these rules. The Supreme Court, when it promulgated and put into effect the so-called new rules of civil procedure in 1941, in effect adopted this construction which had been placed upon the provisions of the statutes, and therefore it is quite plain that the Supreme Court intended that a person appealing in forma pauperis would only be entitled to a “narrative” statement of facts, and that he would not be entitled to a Q and A statement of facts containing all of the exceptions and informal bills of exception to the ruling of the court. It was undoubtedly intended that he should present all such matters by filing formal bills of exceptions timely presented to and approved by the trial judge. Rule 372, Texas Rules of Civil Procedure; 4 Tex.Jur.2d p. 39, §§ 506 and 507.

The statement of facts filed herein, approved by the trial court, is in “narrative” form and does not show any of appellant’s informal bills of exception. Appellant filed four bills of exception, numbered 3, 4, 5 and 6, which the record shows were not approved by the trial court, and therefore can not be considered by us here. These bills of exception were not presented to the trial judge until February 8, 1963. The trial court overruled appellant’s motion for a new trial on September 7, 1962, and gave appellant fifty days within which to present bills of exception. This is the same time as is allowed by Rule 381, T.R. C.P., and it expired on October 27, 1962. The bills of exception were not presented to the trial court until February 8, 1963, which was some ninety-six days after appellant’s time for filing them had expired. No motion for an enlargement of time, under the provisions of Rule 381, T.R.C.P., for such filing, was timely made in the trial court, and the court properly refused to approve these bills of exception which were presented after the time for filing had expired. 4 Tex.Jur.2d, p. 56, § 526; Rule 381, supra.

Appellant next complains because the trial court excluded records of the San Antonio State Hospital, in which deceased was a patient, together with certain other instruments relating to his confinement in such hospital. The ruling of the court on these matters and the contents of the instruments offered is not shown by any bills of exception approved by the trial court, and for this reason can not be considered by us. 4 Tex.Jur.2d, p. 39, §§ 506 and 507.

Appellant next complains that the court erred in admitting the will to probate because the proponent of the will did not discharge the burden of proof resting upon her to show compliance with the statutory requirements of a valid will, and further contends that the trial court should have granted his motion for an instructed verdict. We overrule this contention. The fact that appellant offered evidence contradicting that of appellee did not authorize an instructed verdict in his favor. The evidence was sufficient to show that the testator was of sound mind at the time he executed the will and was in every way qualified to make a will. It further showed that the testator executed the will with all the formalities and solemnities, and under all of the circumstances required by law to make it a valid will, and that the will was entitled to be probated under the provisions of the Texas Probate Code, §§59 and 88.

Appellant next complains because the witness Mrs. Zena Stanley was not permitted to testify. This point is not properly raised because there is not a bill of exception to support the complaint made by appellant. 4 Tex.Jur.2d, p. 70, §§ 506 and 607.

We have examined appellant’s other points and they are without merit, and are accordingly overruled.

The judgment is affirmed.


text:
    Robert RUNYON et ux., Appellants, v. CITY OF BROWNSVILLE, Appellee.
    No. 14162.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 2, 1963.
    Rehearing Denied Oct. 30, 1963.

      Polk Hornaday, Harlingen, for appellants.
    O. B. Garcia, J. O. E. Warburton, George W. Storter, Brownsville, for appellee.
   POPE, Justice.

Appellants, Robert Runyon and wife, sued the City of Brownsville to set aside ad valorem tax assessments against their property. Brownsville Consolidated Independent School District was impleaded. The Runyons contended that the assessments were grounded upon excessive values. The jury, based upon adequate evidence,, found against them on that contention. The Runyons also contended that the assessments were not fair and equal. No issues were submitted on that contention, since it was not proved. Much of this appeal concerns the exclusion of evidence-offered to prove that point.

Many points are briefed which were not mentioned in the amended motion for new trial, but several points, grounded upon the trial court’s exclusion of evidence, were preserved. Robert Runyon, to prove discriminatory assessments, testified about the nature and location of other properties in the area which he contended were taxed on-values far lower than those assessed to his-properties. He was denied the right to-testify as to the values of these comparison properties. In our opinion, this evidence was admissible; but there is no-bill of exception before us to show what the-evidence would have been. We can not presume what the evidence would have-shown. Gass v. Baggerly, Tex.Civ.App., 332 S.W.2d 426; Montgomery v. Pagan, Tex.Civ.App., 324 S.W.2d 251.

The trial court also excluded thirty-six survey cards used by the tax assessor to record information about comparable properties. The court excluded four sheets which showed the assessments against four near-by tracts, and also a 1916 photo of a five-story building. If all those items were admitted, they would show nothing by way of comparison unless interpretive evidence was also offered. These documents, without more, are of no help in proving discrimination, and no bill of exception supplies any clue or data which would tend to prove the point in issue. Moreover, the points are stated but not briefed.

The Runyons were disappointed in the value evidence given by their own witness, E. B. Duarte. They did not, however, advise the court of surprise nor ask for a postponement or other relief. Instead, they proceeded with the trial and called other witnesses who gave testimony of values. The trial continued for several days, and the Runyons did not complain of surprise until they filed their motion for new trial. Chief Justice Hemphill in Kilgore v. Jordan, 17 Tex. 343, said that one can not take the chances of a trial, and upon failing, urge surprise as a ground to reopen the controversy. The Runyons waived their complaint.

The Runyons also insist that their case was prejudiced by comments by the trial judge. They say, “In the stormy atmosphere of this case, the seas of reason were churned by the tempestuous waves of the trial judge’s wrath, the boat of reason could not sail on the smooth waves of reason, and be brought into the harbor of justice.” The metaphor is a bit mixed, but the point is saved. However, we are convinced that at most the proceedings had some local squalls, such as any seasoned legal mariner can expect in a contest between adversaries and a judge. There were no damaging storms. Not until page 390 of the statement of facts did the court begin to make the objectionable comment, “Let’s get along.” Thereafter he made the statement twenty-five times, following a distinct ruling on each objection. Most, but not all of these remarks were addressed to counsel for the Runyons. In some of those instances, it was because the evidence was repetitious. The trial judge was expediting a trial, during which, at times, there was inadequate progress.

The most serious incident in the trial occurred outside the presence of the jury. The trial judge excluded settlement testimony, but Runyons’ counsel immediately asked the same question. The court excused the jury and lectured counsel that a further violation of its rulings and orders would result in a dismissal of the suit. Of course the case was not dismissed, and that is not the point before us. A judge properly enforces his rulings.

Still another incident occurred when the court excluded a document. In the presence of the jury, the court admonished counsel not to “wave” it in close proximity to the jury. The incident arose by reason of the court room arrangement. The record shows, however, that the court had earlier given such instructions in connection with an excluded picture. A trial court often must lay down some ground rules. Once they are clear, the judge properly enforces them.

City of Brownsville has one cross-point. It complains that the trial court failed to award it ten per cent attorney’s fees as prayed for. Article 7335b, Vernon’s Tex. Civ. Stats., authorizes contracts between cities and attorneys for collection of delinquent taxes. The trial court probably concluded that the City failed to prove the conditions to such right to collect attorney’s fees, as provided in the statute. Prefacing the authority to make such a tax collection contract are two clauses: “Any city or town of this State not employing a full time city attorney, or where such full time city attorney fails or refuses to collect the delinquent taxes, such city or town may contract * * We fail to find proof that those conditions were proved.

The judgment is affirmed.


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    Stewart KIMMEL et al., Appellants, v. Lee H. LYTTON, Jr., et al., Appellees.
    No. 4170.
    Court of Civil Appeals of Texas. Waco.
    Oct. 24, 1963.
    Rehearing Denied Nov. 14,1963.
    William C. Wright, Laredo, for appellants.
    Patrick J. Horkin, Jr., Corpus Christi, Waggoner Carr, Atty. Gen., Austin, Den-man Moody, Houston, Lee H. Lytton, Jr., Sarita, Lloyd, Lloyd & Dean, Alice, M. Harvey Weil, Corpus Christi, Perkins, Floyd, Davis & Oden, Alice, Elmore H. Borchers, Laredo, for appellees.
   McDONALD, Chief Justice.

This is an appeal from an order of the District Court of Jim Wells County dismissing intervenors from a suit. Plaintiff Lytton filed such suit against defendants John G. and Marie Stella Kenedy Memorial Foundation, et al., to determine the title to and possession of offices of a charitable corporation organized under the laws of Texas. Issue was joined as to who were the legal officers of the foundation by the various defendants.

Thereafter, appellants herein filed their plea of intervention and a host of amendments and supplements thereof, seeking varied relief, but sought neither title to nor possession of the offices in the Memorial Foundation which are in dispute in the main suit.

The Trial Court sustained motions of the other parties to the original suit to dismiss appellants’ pleas of intervention. Appellants appeal, contending that the trial court erred in striking and dismissing their petition in intervention in the pending litigation.

Appellees have filed motion to dismiss appellants’ appeal.

A judgment dismissing a petition of intervention is not such a final judgment as will authorize an appeal by the intervenor, before final judgment rendered in the court below on the matters in issue between plaintiff and defendant. Stewart v. State, 42 Tex. 242.

Under the general rule that a final judgment is one that disposes of all issues and parties in the case, a judgment which fails to dispose of all issues between the original parties, or between an original party and an intervenor, is not appealable. Accordingly, no appeal lies from an order dismissing a petition in intervention or denying permission to intervene, until after a final judgment has been rendered. 3 Tex. Jur. p. 136; Pioneer American Ins. Co. v. Knox, Tex.Civ.App., Er.Ref., 199 S.W.2d 711; Polk County v. Thurman, Tex.Civ.App., Er.Ref., 285 S.W.2d 487; Mueller v. Banks, Tex.Civ.App., Er.Ref., 302 S.W.2d 447.

Appellees’ motion to dismiss appeal is sustained. Appeal dismissed.


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    STEVE LYNN MOTOR COMPANY, Inc., Appellant, v. Emil PAVELKA, Jr., Appellee.
    No. 4174.
    Court of Civil Appeals of Texas. Waco.
    Oct. 24, 1963.
    Rehearing Denied Nov. 14,1963.
    David E. Hume, Eagle Pass, Morriss, Morriss, Boatwright & Lewis, San Antonio, for appellant.
    Greene & Roye, San Antonio, for appel-lee.
   WILSON, Justice.

Plaintiff declared on two promissory notes, alleging he had acquired the notes for value without notice and was owner and holder thereof. Defendant maker answered that plaintiff was not an innocent purchaser for value, and that the payee had agreed, contemporaneously with execution and delivery of the notes, that the payee “would not press defendant for collection and would not sue him upon the notes.” Judgment was rendered for plaintiff on instructed verdict. We affirm.

Defendant contends the instructed verdict was not authorized because there was evidence to raise a fact issue as to whether plaintiff acquired the notes after maturity so as to preclude his status as a holder in due course under Art. 5935, Sec. 52, Vernon’s Ann.Tex.Stats. The notes were complete and regular upon their face, and were unconditional. Plaintiff adduced evidence that he became the holder before the notes were overdue, taking them in good faith, for value, and without notice of infirmity or defect in title. Defendant relies on the testimony of its president that the notes, which were endorsed in blank by the payee, were seen in the payee’s possession after maturity. It says this evidence is sufficient to show the payee was then the “holder” under Sec. 191 of the Act, and the jury would therefore be authorized to find the notes were acquired by plaintiff after maturity. It contends, alternatively, that plaintiff was a holder in due course only to the extent of what he paid for the notes.

It is unnecessary to pass on these contentions. It is immaterial whether plaintiff was a holder in due course. There is no allegation of want of consideration, fraud, or delivery on condition. The purported infirmity, defect in title or defense alleged, and on which parol evidence was offered, was an agreement of the payee not to sue or press for collection. This is not an allegation of “defective title” under Sec. 55 of the Act, nor of an “infirmity” in the instrument itself. It is not an effective defense.

The plea that the payee would not sue or press for collection is tantamount to the allegation of an agreement that the maker would not be required to pay the notes or would not be liable thereon. Even if attempted to be raised as a defense without exception, parol evidence thereof was without probative force and is to be disregarded. Dolsen v. De Ganahl, 70 Tex. 620, 8 S.W. 321, 322; Robertson v. City National Bank, 120 Tex. 226, 36 S.W.2d 481, 483; Lassiter v. Boxwell Bros., Tex.Civ.App., 362 S.W.2d 884, 886; Wheeler v. Thomas, Tex.Civ.App., 328 S.W.2d 891, 895; Howeth v. Davenport, Tex.Civ.App., 311 S.W.2d 480, 482, writ ref. n. r. e.; Jones v. Hubbard, Tex.Civ.App., 302 S.W.2d 493, 495, writ ref. n. r. e.; Rasey v. Perryman, Tex.Civ.App., 262 S.W.2d 761, 762; Britton, Bills and Notes (1943) Sec. 53, p. 210; Beutel, Brannan’s Negotiable Instruments Law (7th ed.) Sec. 52(4), p. 574, Sec. 16, p. 272; 2 McCormick & Ray, Texas Law of Evidence, Sec. 1643, p. 502. “An agreement not to enforce or sue upon the instrument at all must be equally ineffective.” IX Wigmore, Evidence (3rd ed.) Sec. 2444, p. 144.

Defendant also says there was an issue of fact raised as to whether it was only an accommodation maker. Aside from the question of materiality, there is neither pleading nor evidence it was such an accommodation party. See Robertson v. City Nat. Bank, 120 Tex. 226, 36 S.W.2d 481, 483, syl. 1.

Affirmed.


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    FACTORS COMPANY, a Sole Proprietorship, Appellant, v. WASHBURN STORAGE COMPANY, Appellee.
    No. 4175.
    Court of Civil Appeals of Texas. Waco.
    Oct. 24, 1963.
    Rehearing Denied Nov. 14,1963.

      Mauermann & Crites, San Antonio, for appellant.
    Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, Elliott & Davis, Macon, Ga., for appellee.
   WILSON, Justice.

Appellant, alleging it was assignee of a moving company, sued appellee for commissions alleged to be owed by the latter to the assignor. Appellant abandoned its action on a sworn account. Appellee pleaded payment, and other defenses unnecessary to be noticed. The court instructed a verdict for appellee.

Appellant introduced in evidence a series of assignments from the moving company assignor which recited transfer to appellant of “Bill Numbers” corresponding to the numbers on attached bills of lading in stated amounts.

Appellant seeks to convince us the assignments were valid. This is not the problem. The proof failed to show any debt was due from appellee. Appellant proved, in effect, that it purchased accounts receivable. It showed only the assignment, but failed to raise any issue that assignor had an enforceable chose or interest therein subject to its disposition, or that the purported chose assigned constituted a cause of action against appellee. In the absence of such proof the court properly instructed a verdict. Briscoe v. Texas Gen. Ins. Agency, Tex.Civ.App., 60 S.W.2d 814; Warren v. Sigmond Rothschild Co., Tex.Civ.App., 240 S.W. 1031; Jones v. Cunningham, Tex.Civ.App., 15 S.W. 38; 6 Tex.Jur.2d 452; 6 C.J. S. Assignments § 139, p. 1198; 6 Am.Jur.2d 315.

Affirmed.


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    Preston E. McBEAN, Appellant, v. Agnes K. McBEAN, Appellee.
    No. 4176.
    Court of Civil Appeals of Texas. Waco.
    Oct. 24, 1963.

      Greenwood & Russell, Harlingen, for appellant.
    Carter, Stiernberg, Skaggs & Koppel, Harlingen, for appellee.
   McDONALD, Chief Justice.

This is a summary judgment case. Preston E. McBean, Appellant, and Agnes McBean, Appellee, were divorced by judgment rendered in the court below on October 24, 1954. Such judgment: 1) granted Agnes McBean divorce from Preston E. McBean; 2) awarded Agnes McBean custody of a 17 year old daughter; 3) confirmed a marriage settlement agreement signed by the parties and filed in the cause; and decreed property adjudication in accord with its terms, as follows: a) Homestead of the parties to Agnes McBean; b) Required Preston E. McBean to pay child support for the minor child for 1 year; c) Required Preston E. McBean to pay as a part of “their marriage settlement agreement the sum of $100. per month” (beginning 1 October, 1955), to Agnes McBean as long as she shall live and not remarry; d) Required Preston E. McBean to pay premiums on certain life insurance policies and leave Agnes McBean as beneficiary until she should remarry; e) “Ordered in accordance with said marriage settlement agreement that all other property of every kind, whether belonging to the community or standing in the name of Preston E. McBean * * * be and the same is set apart to Preston E. McBean, as his part of their community property.”

On December 6, 1962 Preston E. Mc-Bean filed a motion in the court below, in the divorce cause, seeking modification of the divorce judgment to delete the requirements that he pay to his former wife the $100. per month; and that he keep the insurance premiums on policies payable to her, paid. Appellant contended in such motion that such provisions are void as against public policy because they constitute permanent alimony. Appellee filed a general denial to such motion.

Thereafter, appellee, on February 6, 1963, filed motion for summary judgment denying appellant’s motion to modify the divorce, judgment; and on February 14, 1963, appellant filed his motion for summary judgment modifying the divorce decree. Both motions assert that there is no genuine issue as to any material fact in the case. Appellant filed affidavit to the effect that ap-pellee received all of the appellant’s and appellee’s community property having any value, in the divorce decree. Appellee filed affidavit setting forth that appellant received 65 acres of land purchased by the community in February, 1953. Appellant filed an affidavit answering appellee’s affidavit, in which he admitted receiving the 65 acres of land purchased in February, 1953, but stated there was more owed on the property than it was worth; and that such property never appreciated in value; and that he sold it at a loss in March, 1958; and that no community funds were ever used in payment of the purchase price of the property.

The trial court rendered summary judgment granting appellee Agnes McBean’s motion, and denying appellant Preston Mc-Bean’s motion to modify the original divorce judgment.

Appellant appeals, contending:

1) That the 1954 divorce judgment requiring him to pay appellee $100. per month for her life unless she remarry, and to pay the insurance premiums, is void as a matter of law.

2) That the pleadings, affidavits and evidence before the court do not show there is no genuine issue as to a material fact.

We revert to contention 2 above. Both parties moved for summary judgment, and both parties asserted in their motion that there was no genuine issue as to a material fact. In such situation summary judgment is the proper method of disposing of the case, the matter in controversy becoming one for the court to decide as a matter of law. Carrothers v. Stanolind Oil & Gas Co., D.C., 134 F.Supp. 191; York v. McBee, C.C.A. (n. r. e.), Tex.Civ.App., 308 S.W.2d 951.

Appellant’s 1st contention is that the 1954 judgment requiring him to pay appellee $100. per month for life unless she remarry, and to pay the life insurance premiums is void as a matter of law. Appellant asserts that same is in the nature of permanent alimony and is not related to the settlement of any property rights. Appellant cites in support of his contentions McBride v. McBride, C.C.A. (n. w. h.) Tex.Civ.App., 256 S.W.2d 250; and McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722, 727.

The McBride case holds that the award of permanent alimony is against public policy in Texas, and is void; and likewise that contracts which are against public policy are void and will not be carried into effect by our courts. Such case recognizes, however, that payments, decreed after divorce, from one party to the other, if, “referable to any property which either spouse may have owned or claimed”, presents a different situation, and is valid and enforceable.

In the instant case appellee received the homestead, and the $100. per month (and right to insurance premium payments) ; and appellant received “all of the other property of every kind”, such including 65 acres purchased during the marriage, and which was community property. See Broussard v. Tian, 156 Tex. 371, 295 S.W.2d 405.

We think that the $100. per month payment required from appellant to appellee was a benefit which appellee received, referable to, or offset to the benefits which appellant received (and which included the 65 acres of land). In such situation, the judgment requiring the $100. per month payment (and the insurance premium payments), does not constitute “permanent alimony”, and is valid and enforceable. Wilson v. Woolf, C.C.A. (n. r. e.) Tex.Civ.App., 274 S.W.2d 154; Wilmeth v. Wilmeth, C.C.A. (Er.Dis.) Tex.Civ.App., 311 S.W.2d 292; Bunker v. Bunker, C.C.A. (n. w. h.) Tex.Civ.App., 336 S.W.2d 751.

Appellant’s contentions are overruled and the judgment of the Trial Court is affirmed.


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    ARNOLD H. BRUNER & COMPANY, Appellant, v. HIDALGO COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. SIX, Appellee.
    No. 14149.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 16, 1963.

      Lyne, Blanchette, Smith & Shelton, Dallas, for appellant.
    Strickland, Wilkins, Hall & Mills, Mission, for appellee.
   BARROW, Justice.

This is an appeal by Arnold H. Bruner & Company from an order overruling its plea of privilege in a suit filed by Hidalgo County Water Control & Improvement District No: 6, to recover damages for breach of a drilling covenant contained in a written lease agreement. The primary question presented is whether the defendant must actually sign the written contract in order for plaintiff to maintain venue under Subd. 5, Art. 1995, Vernon’s Ann. Civ.Stats.

The plea was heard without a jury and no findings of fact or conclusions of law were filed by the trial court. Therefore, it is presumed that the trial court found all fact issues raised by the evidence in a manner to support the judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609.

On May 9, 1960, appellee, as lessor, and Bill I. Burch, as lessee, entered into an oil, gas and mineral lease of land located in Hidalgo County, Texas, for a primary term of one year. Lessee covenanted that he would commence to drill a well on the leased property within the primary term. The lease provided that the rights of either party might be assigned and that in the event of an assignment, liability for breach of any obligation should rest exclusively upon the owner of the lease, or a portion thereof, who committed such breach. On January 16, 1961, the lease was assigned by Burch to appellant by a duly recorded assignment. A well was not commenced within the primary term and appellee filed this suit to recover its damages for breach of the covenant. Appellant filed its plea .of privilege to be sued in the county of its residence, which plea was duly controverted by appellee. The only exception asserted by appellee for maintaining venue in Hidal-go County is Subd. 5, Art. 1995, supra. The lease required lessee to perform an obligation in Hidalgo County, but appellant asserts that since it did not sign the agreement venue cannot be maintained under this exception.

It is now definitely settled that it is not necessary, in order to constitute a “contract in writing” within this venue exception, that the agreement be signed by both parties; that one may sign and the other may accept by his acts, conduct, or acquiescence in the terms of the agreement. Collins v. F. M. Equipment Co., 162 Tex. 423, 347 S.W.2d 575; Harvey v. Bain, Tex., 168 S.W.2d 234; Vinson v. Horton, Tex.Civ.App., 207 S.W.2d 432; Taylor Construction Co. v. Clynch, Tex.Civ.App., 196 S.W.2d 700. See also McDonald, Texas Civil Practice, Vol. 1, § 4.11, and Clark, Venue in Civil Actions, Chap. 5, p. 39. It is undisputed that the written lease agreement was assigned to appellant by Burch and that appellant accepted the benefits and obligations of this lease agreement. It thereby became bound under the above rule to the terms of the written contract.

Appellant asserts in the alternative, that it had reassigned the lease back to Burch on April 5, 1961, and that it did not own an interest in the lease at the time of its expiration. This matter raises a special defense which should be determined at the trial on the merits. McDonald, Texas Civil Practice, Vol. 1, pp. 344-345. In any event, there is sufficient evidence to support an implied finding by the trial court that the purported reassignment of the lease was not intended to convey title to the lease. Appellant’s copy of the reassignment was introduced in evidence. It was marked “Void” across the face and on the notary’s jurat. Appellant’s manager testified that he had written a notation on this copy of the reassignment as follows:

“This was in the event Burch turned deal to someone for Bruner to take Bruner off the hook. He took original and voided my copy so it could not be recorded.”

It was also shown that appellant had tendered to appellee a release of the lease after the expiration date. In the letter transmitting the release, appellant acknowledged ownership of the lease and gave a reason for its decision not to drill. This tendered release was refused by appellee.

The judgment is affirmed.