author: CLAUDE WILLIAMS, Justice.

text:
    Harvey Everett KIDD, Appellant, v. LONE STAR GAS COMPANY et al., Appellees.
    No. 16891.
    Court of Civil Appeals of Texas. Dallas.
    March 24, 1967.
    Rehearing Denied April 20, 1967.
    Elliott & Nall, Russell Dunn, Sherman, for appellant.
    James E. Henderson, of Henderson, Bryant & Wolfe, Sherman, for appellees.
   CLAUDE WILLIAMS, Justice.

Action for personal injuries. Harvey Everett Kidd brought this action against Lone Star Gas Company and J. W. “Bill” Christie, Inc., alleging that they, or either of them, had negligently caused his wife, Dorothy Jane Kidd, to sustain personal injuries when she tripped over a pipe in the front yard of her home in Sherman, Gray-son County, Texas, on the night of August 19, 1965. It was alleged that on and prior to the day in question plaintiff and his wife were residing at 911 East Brockett Street in Sherman, Texas; that on said date, and for many days prior thereto, the defendants were engaged in constructing and laying a gas pipe line along the north side of East Brockett Street; that in the laying of said pipe line, the defendants, caused to be dug a hole or tunnel underneath Brockett Street from the north to the south side and that in order to dig said, tunnel the defendants caused a ditch to be dug in plaintiff’s front yard, near and parallel to plaintiff’s driveway; that such ditch was dug during the day of August 19, 1965 at a time when plaintiff and his wife had gone to Gainesville, Texas. Plaintiff further alleged that when he and his wife returned from Gainesville to their residence at about nine o’clock p. m. they did not know that the ditch had been dug by the defendants in their yard parallel with the driveway; that plaintiff drove his automobile into his driveway to a place near his front porch and stopped, after which Mrs. Kidd alighted from their automobile and walked to the rear to walk around it in order to reach her front steps; that as she was walking she tripped over a pipe which was laying at an angle and this caused her to fall and sustain injuries. Various acts of negligence were asserted against both defendants including failure to warn of the presence of the pipe which was extending beyond the ditch in the yard.

Both defendants answered and leveled various acts of contributory negligence against both Mr. and Mrs. Kidd. Defendant Lone Star Gas Company contended, inter alia, that the pipe laying work had been done by J. W. “Bill” Christie, Inc., which was an independent contractor and therefore it was not liable for any alleged acts of negligence committed by its co-defendant.

At the conclusion of the testimony in a jury trial defendant Lone Star Gas Company moved for an instructed verdict which motion was sustained.

The jury, in response to special issues submitted to them, made the following findings: (1) that J. W. “Bill’ Christie, Inc. failed to give Mrs. Kidd an adequate warning of the location of the pipe in the yard; (2) that such failure was negligence and (3) such negligence was a proximate cause of the injuries sustained by Mrs. Kidd; (4) that Christie, Inc. failed to place barricades along the pipe in question; (5) that such failure was negligence and (6) such negligence was a proximate cause ■of Mrs. Kidd’s injuries; (7) that Christie, Inc. failed to have the area where the ditch was dug timely lighted; (8) that such failure was negligence; and (9) such negligence was a proximate cause of Mrs. Kidd’s injuries; (10) that Mrs. Kidd did not fail to keep a proper lookout at the time, place and on the occasion in question; (12) that at the time, place and on the occasion in question Harvey Everett Kidd failed to keep a proper lookout and (13) such failure was a proximate cause of the injuries sustained by Mrs. Kidd; (14) that Mr. Kidd failed to leave the automobile lights on until Mrs. Kidd reached the house; and (15) such failure to do so was negligence but (16) such negligence was not a proximate cause of the injuries sustained by Mrs. Kidd; (17) that Mrs. Kidd walked to the'rear of the automobile instead of the front thereof; but (18) such conduct on her part was not negligence; (20) that Mr. Kidd failed to warn his wife on the occasion in question to avoid the construction; but (21) such failure was not negligence on his part; (23) that on the occasion in question Harvey Everett Kidd failed to instruct his wife to walk in front of the car rather than behind it but (24) such failure was not negligence; (26) that on the occasion in question Harvey Everett Kidd failed to provide light for Mrs. Kidd to walk across the yard but (27) such failure on his part was not negligence; (28-A) that on the occasion in question Harvey Everett Kidd did not park his car at an improper location in the driveway; (29) that $5,000 would reasonably and fairly compensate Mr. Kidd for the injuries sustained by his wife and (30) $285 would compensate the plaintiff for doctor and medical bills incurred as a result of the injuries.

Plaintiff timely filed his motion requesting the court to set aside and disregard the jury’s answer to Special Issues 12 and 13 and enter judgment for him based upon the remaining jury findings. This motion was overruled and thereafter the court proceeded to render judgment denying plaintiff any recovery against either defendant.

Appellant brings to this court no points of error complaining of the action of the trial court in sustaining Lone Star Gas Company’s motion for instructed verdict and denying him any recovery against such defendant in the trial court. Accordingly, this portion of the judgment is affirmed.

Contending that the trial court should not have submitted to the jury Special Issues 12 and 13 and further that the trial court should have disregarded the answers of the jury to said issues, appellant asks us to reverse and render judgment in his favor based upon the remaining answers of the jury as above related.

Appellant’s point 1 is as follows:

“This case should be reversed and rendered in favor of appellant, because the trial court erred in submitting to the jury Special Issues Nos. 12 and 13 over objections and exceptions of plaintiff.”

Appellee contends that we should not consider this point because it does not comply with Rule 418(b), Vernon’s Texas Rules of Civil Procedure, in that it does not specify any specific error complained of. Tindall v. Tacconelly, Tex.Civ.App., 328 S.W.2d 909; Horton v. Stone, Tex.Civ.App., 268 S.W.2d 247; and Texas Life Ins. Co. v. Jordan, Tex.Civ.App., 253 S.W.2d 906. Appellee further points out that a reading of appellant’s argument under his point 1 demonstrates that his principal contention is that Issues 12 and 13 were duplications of other special issues submitted to the jury on the question of various elements of proper lookout and that none of these contentions were contained in the objections and exceptions to the court’s charge. Our examination of the record supports appellee’s contention in this regard. The entire burden of appellant’s argument under his point 1 rests on the proposition that having submitted various fragmented issues relating to improper lookout the trial court should not have submitted the broad general issue of lookout as reflected in Special Issue No. 12. However, the objections and ■exceptions leveled at Special Issue No. 12 prior to its submission to the jury do not contain such complaints. Accordingly, we sustain appellee’s objection to our consideration of point 1.

By his point 2 appellant says:

“This case should be reversed and rendered in favor of the appellant because the trial court erred in refusing to grant Plaintiff’s Motion to Disregard Jury Findings as to Special Issues Nos. 12 and 13.”

Again, appellee objects to our consideration of this issue as being multifarious and not specifying the particular error complained of and alleged in the motion for judgment non obstante veredicto. In compliance with the rule announced by our Supreme Court in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, and frequently applied in opinions of this court, we have carefully examined the statement and argument following appellant’s second point in an effort to ascertain the exact basis of his complaint. Having done so we are convinced that both in his motion for judgment non obstante veredicto and in his point of error, as briefed, appellant contends that there was no evidence of probative value to support the answers of the jury to Special Issues 12 and 13 and therefore, pursuant to Rule 301, T.R.C.P., such answers should be disregarded and judgment rendered upon the remainder of the verdict.

Being a “no evidence” point, and therefore one of law, we apply the rule pronounced by our Supreme Court in Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, by considering only evidence favorable to the verdict and indulging every legitimate conclusion in its favor. Associated Sawmills, Inc. v. Peterson, Tex.Civ.App., 366 S.W.2d 844.

A brief statement is necessary. Appellant and his wife left their home on the morning of August 19, 1965 to drive to Gainesville, Texas for a visit. At that time there was no excavation in appellant’s yard nor was the pipe in question on the premises. A ditch had previously been dug but had been covered up. Some workmen were in the vicinity obviously preparing to do some work but appellant denied that he knew that these men were going to dig another ditch in his yard. That night, about nine o’clock p. m., appellant and his wife returned to their home. Appellant was driving the family automobile with his wife riding in the front seat with him. Their two very small children were riding in the back seat of the car. It was a dark night and the evidence seems to be undisputed that the street light on the corner was either insufficient or due to foliage of trees did not illuminate the front yard of appellant’s residence. As appellant approached his house his headlights were on but he stated that as he made his turn to drive into his driveway he did not see the barricades or excavation in his yard. Appellant drove his automobile into the driveway and parked the same so that the front end thereof was near the front porch of the house. Appellant alighted from the left side of his car, took his two children from the back seat, and proceeded to carry them to the front porch and into his house. At the same time, appellant’s wife alighted from the right side of the car and walked around the back of the car and towards the house at which time she tripped and fell over a black pipe extending several feet beyond a ditch which had been dug that day by appellee’s employees. Appellant’s front yard was unlighted and he testified his first knowledge of the existence of the pipe in his front yard was after he helped his wife into the house and returned to search for the cause of her fall. Issue No. 12 inquired of the jury, “Do you find from a preponderance of the evidence that at the time, place, and on the occasion in question, Harvey Everett Kidd failed to keep a proper lookout (as defined herein) ? fer”, with the word “for” crossed out exactly as shown. Issue No. 13 inquired as to whether such failure to keep a proper lookout as inquired about in Issue No. 12 was a proximate cause of Mrs. Kidd’s injuries.

When we view the record in the light of the foregoing rules we agree with appellant that there is no evidence to support the jury’s answer to Special Issue No. 13 to the effect that a failure on the part of Mr. Kidd to keep a proper lookout on the occasion in question was a proximate cause of his wife’s injuries. Any possible support to this finding must be predicated upon nothing more than suspicion and surmise which amounts to no evidence at all.

We think this conclusion is supported by a reconciliation of the entire jury verdict. The jury found, and such finding is not attacked, that Mrs. Kidd, the lady who was injured, kept a proper lookout. The jury found that although Mr. Kidd failed to leave the automobile lights burning until Mrs. Kidd reached the house, and that such failure was negligence, such negligence was not a proximate cause of the lady’s injuries. Moreover, the jury said that Mrs. Kidd’s action in walking around the automobile to the rear instead of the front was not negligence, nor was it negligence on the part of Mr. Kidd to fail to warn his wife to avoid the construction. The jury also found that Mr. Kidd failed to instruct his wife to walk in front of the car instead of behind it but that such failure was not negligence or a proximate cause of her injuries. Finally, the jury said that Mr. Kidd’s failure to provide light to illuminate his wife’s walk across the yard was not negligence or a proximate cause of the wife’s injuries. Each of these fragmented issues negatived the proposition that any general lack of lookout on the part of Mr. Kidd could be a proximate cause of his wife’s injuries. The generality and vagueness of Special Issue 12 is accented by the failure of the court to specify whether Mr. Kidd failed to keep a proper lookout for anyone in particular. Reconciled together, the specific findings on the part of the jury ruled out the general finding of improper lookout and proximate cause.

When the testimony is viewed in its most favorable light all that can be said is that at the time and on the occasion in question Mr. Kidd, who had properly parked his automobile in the driveway according to the jury, got out of his car and took his children into the house. At the same time Mrs. Kidd alighted from the automobile and went around the car to the rear in the dark and while keeping a proper lookout, tripped over the pipe which had been admittedly left there by employees of appellee. Appellee makes no contention that the findings of primary negligence against it, together with the findings of proximate cause, are not supported by the evidence. The picture thus presented is inescapable as demonstrating the absence of any evidence which could legally justify the jury’s finding that any improper lookout on the part of Mr. Kidd proximately caused his wife’s injuries. We are of the view that reasonable minds can reach but one conclusion and that is that any lack of lookout on Mr. Kidd’s part could not as a matter of law, constitute causation of his wife’s fall. Jordan et al. v. City of Lubbock, Tex.Civ.App., 88 S.W.2d 560; Dunlap v. Executive Inn Motor Hotel Corp., Tex.Civ.App., 404 S.W.2d 842; Parham v. Norwood, Tex.Civ.App., 329 S.W.2d 506. We therefore sustain appellant’s second point.

The judgment of the trial court denying appellant any recovery against Lone Star Gas Company is affirmed. The judgment denying appellant' recovery against appellee J. W. “Bill” Christie, Inc., is reversed and here rendered that appellant Harvey Everett Kidd do have and recover of and from appellee J. W. “Bill” Christie, Inc. the sum of $5,285, together with interest thereon at the rate of 6 per cent per annum from May 11, 1966, together with all costs in the trial court. It is further ordered that all costs in this court be assessed against appellee J. W. “Bill” Christie, Inc.

Affirmed in part and reversed and rendered in part.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. M. A. HAMPTON, Appellee.
    No. 4152.
    Court of Civil Appeals of Texas. Eastland.
    April 21, 1967.
    Rehearing Denied May 5, 1967.

      Kerr, Fitz-Gerald & Kerr, Theodore M. Kerr, Midland, for appellant.
    Warren Burnett, Robert E. Hoblit, Odessa, for appellee.
   GRISSOM, Chief Justice.

In a trial to the court, M. A. Hampton, the father of Tony Hampton, deceased, recovered a judgment against his employer’s insurance carrier and it has appealed.

On March 16, 1966, at 10:00 o’clock P.M. Tony Hampton and Wayne Patterson, employees of Pinkie’s Inc., were coming out of the back door of Pinkie’s store when they were shot and killed by William T. Patterson. Wayne Patterson, Tony’s fellow employee, was a cousin of William. The killing arose out of a grievance William had against his cousin Wayne for about five years because Wayne had then struck William with a stick. A doctor testified that, in her opinion, William went to Pinkie’s on that fatal night to kill Wayne and the appearance of Tony constituted a detriment to accomplishment of his purpose to kill Wayne which he intended to remove by use of his rifle; that after William had fired two shots each into the bodies of Wayne Patterson and Tony Hampton he pinned his fishing license on their bodies so the officers would arrest him. At the time of the shooting both Wayne and Tony were walking out of the rear door of Pinkie’s store, closing it for the night. Tony’s duties were to assist Wayne in closing the store at about 10:00 o’clock and in locking the back door and to then mail a written report of the day’s business to his employer. When he was killed Tony had the daily report of business in his hand, he was leaving his employer’s store through the rear door, out of which said employees were supposed to leave and lock said door, and to then mail said report. The killer did not know Tony. Tony stepped out the door first and was immediately killed by William.' A qualified doctor testified that the killer had been suffering from catatonia schizophrenia for five or six years and was mentally ill; that his mental illness was severe enough to impair his contact with reality and he was insane at the time of the killing. There was testimony that William had a difference with Wayne that did not involve Tony and that if anyone else had gone out the back door at the time Tony did they would have been shot. The court found that (1) Tony was an employee of Pinkie’s Inc. at the time he was killed; that (4) Tony’s accidental injury was received in the course of his employment by Pinkie’s Inc. and that (5) said injury was a producing cause of Tony’s death. The court further found that when William killed Tony, William was insane and incapable of entertaining a rational intention and incapable of reasoning.

The finding that Tony was then in the course of his employment is the principal act urged by the insurance company as reversible error. The insurance company’s first two points are that the court erred in rendering judgment for Hampton because (1) there was no evidence that Tony’s injury was received in the course of his employment by Pinkie’s Inc., and (2) the evidence was insufficient to support that finding.

In Southern Surety Company v. Shook, Tex.Civ.App., 44 S.W.2d 425, 426, (writ ref.), Thompson and others went upon a lease where Shook was employed to keep a pump running. Shook was permitted to go anywhere while he was on the job provided he could hear the pump running at that distance. Thompson and others went on the lease for the purpose of murdering and robbing Shook. They lured him away from his cabin on a pretended hunting expedition and, while he was still near enough that he could hear the pump, they shot and killed him. Shook’s heirs recovered a judgment under the Workmen’s Compensation Law and the insurance carrier appealed. It contended that the court erred in finding that Shook’s injury had to do with and originated in his employer’s business and that Shook was not killed because of reasons personal to him and not directed against him as an employee or because of his employment within the meaning of Article 8309, Sec. 1. A jury found that Shook was injured in the course of his employment. The insurance company requested a peremptory instruction that said injury was not received in the course of Shook’s employment within the meaning of said statute. Judge Hickman, in writing the opinion for this court, pointed out that there was no malice on the part of the killer toward the employee, that, on the contrary, his motive was robbery, possibly commingled with the desire of a depraved mind to “see him kick” and that there had been no previous difficulty. This court concluded that the employee’s death was not brought about by “reasons personal to him”, citing Vivier v. Lumbermen’s Indemnity Exchange, Tex.Com.App., 250 S.W. 417, 418. The insurance company contended that the evidence showed that Shook’s injury did not have to do with and originate in the work of his employer, and was not received by the employee while he was engaged in or about the affairs or business of his employer. It was held that Shook’s injury resulted from a risk or hazard incident to his work as a pumper for the reasons mentioned, plus the further facts that Shook was on duty twenty-four hours a day and was housed in a shack belonging to his employer near the pump in order that he might always be available. In so holding this court quoted from our Supreme Court’s opinion in Lumberman’s Reciprocal Ass’n. v. Behnken, 112 Tex. 103, 246 S.W. 72, 73, 28 A.L.R. 1402 the following:

“An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in Or incident to the conduct of such work or business. As tersely put by the Supreme Court of Iowa:
‘What the law intends is to protect the employee against the risk or hazard taken in order to perform the master’s task.’ —Pace v. Appanoose County, 184 Iowa, 498, 168 N.W. [916,] 918”.

Appellant seeks to show that Tony was not in the course of his employment by saying that his injury and death was not of the kind and character that had to do with and originated in the employer’s business. There was evidence that Pinkie’s Inc. needed two employees to carry out its business of operating a liquor store; that Tony did not choose to work with Wayne but they were required to work together to carry out their employer’s business and Wayne’s cousin Willie came to Pinkie’s store that night for the purpose of killing Wayne; that Tony had nothing to do with William’s intention or desire to kill his cousin Wayne. Tony’s only contact with the killer was caused directly and solely by his employment, which required him to work with Wayne on March 16, 1966 and, thus, placed him in the danger zone where only an employee of Pinkie’s had to be. The killer stated that he had his rifle aimed at the back door and the boy he did not know walked out the back door first and he shot him but that he was there for the purpose of killing Wayne. The evidence sustains the finding that Tony was in the course of his employment by Pinkie’s when he met his death. He was assisting in closing and locking the back door, which he had gone through, it being the door he was required to leave by in order to see that it was closed and locked and he had his daily report in his hand to be mailed by him to his employer. These facts are undisputed. They are sufficient to support the finding that Tony was in the course of his employment.

In Katz v. A. Kadans & Co., 232 N.Y. 420, 134 N.E. 330, 23 A.L.R. 401, a dairyman’s chauffeur was stabbed by an insane man after he had delivered cheese for his employer. The court awarded compensation saying:

“If the work itself involves exposure to perils of the street, strange, unanticipated, and infrequent though they may be, the employee passes along the streets when on his master’s occasions under the protection of the statute. This is the rule unequivocally laid down by the House of Lords in England.”

Tony, in discharging his duties, was working with an employee who had an insane cousin who wanted to kill him and Tony was exposed to that danger because of his employment. In Vivier v. Lumberman’s Indemnity Exchange, Tex.Com.App., 250 S.W. 417, 418, the court said:

“By reason of the performance of his duty, deceased was placed in a position which contributed to the effectuation of the designs of the assassin, and furnished the opportunity for injury or death that would not have existed but by reason of his situation in the performance of his duty.”

It was there held that where a night watchman, while on his employer’s premises performing his duties, was assaulted and killed by an unknown person whose motive was robbery, his death was caused by an injury suffered in the course of his employment. In Hartford Accident & Indemnity Co. v. Hoage, 66 App.D.C. 160, 85 F.2d 417, the Court of Appeals for the District of Columbia held that when a crazed stranger stabbed a chef while he was cooking in a restaurant kitchen which served as a passageway for its customers that his injury arose out of and in the course of his employment. The court said the place where the employee was assigned to work was open to customers of the restaurant. It was on the premises of the employer. Although the claimant’s injury was inflicted by a crazed stranger and was not such a danger as would ordinarily be apprehended by either the employer or employee, nevertheless, the injury was suffered by the employee at his place of duty, upon the premises of his employer, while he was engaged in the work for which he was employed, and, therefore, the injury arose out of his employment. In the course of that opinion (on page 419) the court quoted from Katz v. A. Kadans & Company, 232 N.Y. 420, 134 N.E. 330, 23 A.L.R. 401, what we have heretofore quoted and further that “The risk of being stabbed by an insane man running amuck seems in a peculiar sense a risk incidental to the streets to which claimant was exposed by his employment.” It further said that in Frigidaire Corporation v. Industrial Accident Comm., 103 Cal.App. 27, 283 P. 974, where a zone manager with headquarters in San Francisco, after finishing his labors in Reno, proceeded to the station intending to board the San Francisco train but was struck by a wild bullet from a policeman’s pistol and died, it was held that his death arose out of his employment and was com-pensable. It further said that in Greenberg v. Voit, 250 N.Y. 543, 166 N.E. 318, where the claimant’s husband, while sweeping the front stoop of a building in performance of his duties as janitor, was killed by gangsters shooting indiscriminately the court held that his death arose out of his employment and was compensable. In Louie v. Bamboo Gardens, 67 Idaho 469, 185 P.2d 712, the Supreme Court of Idaho held that an injury sustained by a dishwasher who was shot by an insane person while he was taking glasses from the kitchen to the dining room was sustained in the course of and arose out of his employment and was compensable. In Garcia v. Texas Indemnity Insurance Company, 146 Tex. 413, 209 S.W.2d 333, our Supreme Court considered the case of a store employee who fell and fractured his skull, while he was waiting to lower loading dock gates at the close of the day, by falling against the sharp corner of steel edgings designed to protect a post near which his duties required him to be, that such employee’s injury, though his fall was due to an epileptic fit, arose out of his employment within the meaning of the Compensation Act. It further held that where an employee’s fall was not caused by a third person’s “intentional” act or claimant’s intoxication, the cause of the fall was immaterial on the question whether his injuries arose out of his employment. “Where the employee is at his place of work when assaulted by an insane person, his injuries are compensable as arising out of, and in the, course of, his employment * * * 99 C.J.S. Workmen’s Compensation § 227, p. 771. In support of the quoted statement said authority cites Hartford Accident & Indemnity Co. v. Hoage, 66 App.D.C. 160, 85 F.2d 417 and Louie v. Bamboo Gardens, 67 Idaho 469, 185 P.2d 712. In a foot note to 99 C.J.S. Workmen’s Compensation § 227, p. 771, under the heading “Statute precluding compensation for intentional assault”, it is stated that when the act causing injury to an employee in the course of his employment is that of a person incapable of entertaining a rational intention or incapable of reasoning, the statutory exception precluding compensation where the injury is caused by an act of a third person intended to injure the employee, is inapplicable, citing Petroleum Casualty Company v. Kincaid, Tex.Civ.App., 93 S.W.2d 499, writ dismissed 132 Tex. 325, 122 S.W.2d 1048.

We think there was ample evidence to sustain the court’s finding that Tony was in the course of his employment when he received his fatal injury. We have cited authorities which hold that where the injury to an employee is caused by an insane person but is suffered while the employee was in the discharge of his duties the injury arose out of and in the course of the employee’s employment. In Garcia v. Texas Indemnity Insurance Company, 146 Tex. 413, 209 S.W.2d 333, 336, our Supreme Court quoted with approval the following statement of the Supreme Court of New Jersey:

“The sound rule is that whenever conditions attached to the place of employment or otherwise incident- to the employment are factors in the catastrophic combination, the consequent injury arises out of the employment.”

We think the court properly found that William Patterson was insane and incapable of entertaining a rational intention and incapable of reasoning and that therefore no exception to compensability contained in Article 8309, Section 1 was applicable. We conclude that, there was evidence of probative force to support such findings. We agree with said legal conclusion. Dr. Williams had served eight years on the staff and as Clinical Director of the Psychiatric Hospital at Big Spring. She testified that Willie was referred to the hospital in March 1966 because he had committed murder; that she and other members of the staff examined him; that in her opinion William had been suffering from catatonia schizophrenia for five years; that he was suffering from mental illness; that such mental illness was severe enough to impair William’s contact with reality and he was insane at the time he killed Tony. William gave no reason for murdering Tony. He stated that Wayne had hit him five or six years previously and he decided on the night he killed both Wayne and Tony that he would kill Wayne for hitting him and that he went back of Pinkie’s for that purpose, but the boy he didn’t know stepped out the door first and he shot him. Certainly, Tony did not provoke the attack. William’s action was caused by catatonia schizophrenia, defined as “A benign stupor which frequently may be punctuated by violent outbursts, hallucinosis and panic.” William’s acts were directed at Tony at the time of the killing only because Tony was in his gun sights and Tony was in that position solely because he was performing his duties ,at Pinkie’s with a fellow employee that William went there to kill.

Under Article 8309, section 1, subsection (2), an employee is not in the course of his employment if he is injured by a third person for personal reasons. Here there was no evidence of a personal reason for injuring Tony within the meaning of such statutory exception. There was no personal reason in the mind of William for killing Tony because in his insane condition he simply found Tony there when he waited for Wayne to come out the back door so he could kill him for striking him five years previously.

Appellant complains of the testimony of Dr. Williams wherein she used the phrase “legally insane.” In Barton v. Bailey, Tex.Civ.App., 202 S.W.2d 277, (Ref. n. r. e.), there was testimony relative to sufficient mental capacity in a will contest and on motion for rehearing this court said that an additional reason for holding that reversible error was not shown was that similar testimony was admitted without objection. That is to some extent true here. Furthermore, this was a trial to the court. We do not presume that the court considered and was improperly influenced by inadmissible testimony but we conclude that such testimony was not reasonably calculated to cause and did not probably cause an unjust judgment. In Hudson v. Fuson, Tex.Civ.App., 15 S.W.2d 166, the court quoted the following with approval from Wigmore on Evidence 2d, Vol. 4, Par. 1958.

‘It is easy to see that on principle the opinion of no witness whatever is needed to tell the court whether testimentary capacity existed, because that is a matter of applying a legal definition to the data of the testator’s mental condition, and the judge (in theory) needs no assistance on that point * * *

We think the court properly found that no exception to the right to recover provided in Article 8309, Sec. 1, applied to prevent an award of compensation in this case. We think the court properly overruled appellant’s request for findings that William “intended” to injure Tony; that Tony’s injuries were caused by a third person for reasons personal to him and that William’s act was not directed at him as an employee of Pinkie’s, Inc., or because of his employment, there being competent evidence to the contrary. The only witness to said murders, William Patterson, confessed that he did not know Tony. The Sheriff found no evidence of any communication between them or of any conflict between them. Miss Clark, Tony’s girl friend, never heard of William. In addition to not being acquainted with Tony, William was suffering from catatonia schizophrenia and insane when he shot Tony. The trial court properly found that William was insane, incapable of entertaining a rational intention and incapable of reasoning and that Tony’s injury did not come within the exception to liability due to an “intentional” injury inflicted by another. Petroleum Casualty Co. v. Kincaid, Tex.Civ.App., 93 S.W.2d 499, writ dismissed 132 Tex. 325, 122 S.W.2d 1048; Jefferson Standard Life Insurance v. Myers, Tex.Com.App., 284 S.W. 216, 217; Texas Life Insurance Company v. Plunkett, Tex.Civ.App., 75 S.W.2d 313, 314. Appellant’s requested findings of fact on “personal reasons” or “intentions” for the shooting, if complied with, would have put the court in the position of having conflicting findings. Having found that Willie was insane, the court properly found that he did not have personal reasons for killing Tony within the statutory exception. The court did not commit reversible error in refusing to make such requested findings.

We think the court did not commit reversible error in admitting the judgment finding William Patterson insane. This was a trial to the court. If such judgment were improperly admitted there was other ample admissible evidence that Willie was insane when he killed Tony Hampton. It was undisputed. Whether or not it was admissible for the limited purpose of explaining the absence of Willie as a witness, as held in Brewster v. State, 40 Tex.Civ.App. 1, 88 S.W. 858, (writ ref.), we think it does not manifest reversible error because it was a trial to the court and without it there was ample evidence of Willie’s insanity and, furthermore, under such circumstances it was not reasonably calculated to cause and did not probably cause an unjust judgment.

All points have been considered. We conclude that reversible error has not been shown. The ;■ idgment is affirmed.


author: PRESLAR, Justice.

text:
    W. D. NOEL et al., Appellants, v. The ATLANTIC REFINING COMPANY, Appellee.
    No. 5805.
    Court of Civil Appeals of Texas. El Paso.
    April 19, 1967.
    Rehearing Denied May 10, 1967.

      Crawford C. Martin, Atty. Gen., C. L. Snow, Milton Richardson, Hawthorne Phillips, Arthur Sandlin, Asst. Attys. Gen., Austin, Shepperd & Rodman, Odessa, Pat H. Candler, Dallas, for appellants.
    Stubbeman, McRae, Sealy & Laughlin, Durward Goolsby,- W. B. Browder, Jr., Midland, for appellee.
   OPINION

PRESLAR, Justice.

This is a suit in the nature of trespass to try title to land involved in a vacancy award. The trial court sitting without a jury granted judgment for the plaintiff fdS* title to the minerals under the land, found that it was not a vacancy, and canceled the patents.

The Atlantic Refining Company, appel-lee herein, sued all of the defendants, W. D. Noel, J. S. Lane, Harry Howard and wife, and Bankers Life Company for title and possession of two tracts of land, the first tract containing 60.53 acres and being described as part of Section 10, Block 1, and the second containing 94.5 acres described as being out of Section 26, Block I, M. K. & T. R. R. Co. Survey in Upton County, Texas; and Atlantic also asked judgment declaring that said two tracts of land were not vacant, unsurveyed school lands and it alleged that the application of the defendant Noel to lease said tracts should have been denied, and the Good Faith Claimant applications to purchase of the defendants Lane and Howard should have been denied, and the patents awarded under such applications canceled. Bankers Life Company was a party to the suit as the holder of a deed of trust mortgage on the Howard property. The State of Texas intervened and filed an answer and trespass to try title cross-action.

Blocks 1 and 2, M. K. & T. R. R. Co. Survey were originally surveyed in 1881 hy H. C. Barton. Block 1 was resurveyed in 1913 by R. S. Dod. The controversy over the land in question is the result of conflicts in the two surveys, in that Dod placed the north lines of Sections 10 and 26 south of Barton’s locations for such lines. Thus the two tracts in question come out of Sections 10 and 26, as originally surveyed by Barton. Sections 1 and IS of Block 2 were patented on Barton’s field notes and they are immediately north of sections 10 and 26 respectively. Sections 10 and 26 were patented on Dod’s survey, and with the four sections in place by the field notes on which each was patented, the two tracts involved exist between them. W. D. Noel filed an application to lease the minerals on the two tracts, alleging them to be vacant, unsurveyed land belonging to the Public Free School Fund, as provided by Article 5421c, Vernon’s Ann.Civ.St. The Commissioner of the General Land Office approved Noel’s application after a survey and public hearing. Patents were also later issued to Lane and Howard on the two tracts following their application to purchase as Good Faith Claimants. Atlantic- then instituted this suit in which it claims the two tracts are not vacant, un-surveyed land, and that it owns the minerals thereunder by reason of having purchased all of the minerals under Sections 10 and 26 after Dod’s resurvey, but before patents issued based on such survey. Appellee, as plaintiff in the trespass to try title suit, undertook to prove that title to the land in question had passed out of the State and is now vested in plaintiff. The chain of title is unbroken, but we are of the opinion that title remained in the State because of the circumstances of the issuance of patents to Sections 10 and 26 based on the resurvey. The principle of law involved is that one who accepts a patent to land containing field notes which do not embrace all of the original survey is estopped to claim any right by virtue of the original survey; or stated otherwise, the assignee of a land certificate loses all title or claim to so much land as may be included in an original file and survey thereunder as is without the limits of a corrected survey on which such assignee accepts a patent. The rule is fully set forth by the Supreme Court in three cases decided on the same date (May 13, 1933) — Miller v. Yates, 122 Tex. 435, 61 S.W.2d 767; Holmes v. Yates, 122 Tex. 428, 61 S.W.2d 771; Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792. Also see Wofford v. Miller, Tex.Civ.App., 381 S.W.2d 640, err. ref., n. r. e., and cases there cited.

The chain of title relied on by plaintiff included applications to purchase Section 10 by one H. R. Smith, filed in 1905, and Section 26 by one Jno. R. Johnson, filed in 1904. The certificates which issued on these applications, by a chain of assignments, came to be owned by Union Land Company, along with certificates to other sections in Block 1. All were based on the survey of Barton. In 1913 Union Land Company determined to have Block 1 resurveyed and entered into a written contract with Dod to make such survey. That contract provided that Dod was to render to the General Land Office of the State of Texas for its file a complete set of field notes and maps of his survey, and that in no case were corners to be left out and notes so incomplete as to cause the General Land Office to reject the maps and notes after the surveys had been made. It was also provided that a portion of Dod’s pay was to be withheld until his notes were accepted by the General Land Office. In negotiating its contract with Dod, Union Land Company was informed by Dod that it would be necessary for it to apply to the Commissioner of the General Land Office, designating the land to be surveyed, and have him commissioned by the General Land Office if Union desired the work to go on record in the General Land Office. Those things were done by Union Land Company, Dod may the resurvey, and his field notes and maps were accepted by the General Land Office and placed in its files. Union Land Company was informed by the General Land Office that the field notes of the resurvey by Dod “together with elaborate report and plats, have been examined and approved by this office and the papers filed in their proper wrappers. The correct area in each survey will be made accordingly on the State Abstract for lands in Upton County.” Union Land Company by reply letter acknowledged receipt of this General Land Office letter. The contract and correspondence above referred to have been a part of the General Land Office files regarding this land through the years.

Cordova-Union Oil Corporation purchased the interests of Union Land Company and in 1943 conveyed to plaintiff, Atlantic Refining Company, all of the minerals in lands owned by it in Texas. In 1944 Cordova-Union conveyed Section 10 to Lane, and Section 26 to Howard, by deed reciting that all of the minerals had previously been conveyed to Atlantic. Also in 1944, Cordova-Union paid to the State the balance owing on the purchase price of such sections. In 1945 Great Southern Life Insurance Co., a mortgagee of both Lane and Howard, processed applications for patents to Sections 10 and 26. Patent to Section 10 was issued to E. G. King, assignee, with a recitation that it was bought and paid for on the application of H. R. Smith filed in 1905. Section 26 was patented to Jno. R. Johnson based on his application of 1904. Both patents described the land conveyed by the field notes of Dod’s 1913 survey. This was the first use of a metes and bounds description in the chain of title.

We have traced the actions of Union Land Company somewhat in detail in their obtaining a resurvey, because it demonstrates clearly that they requested it with every intention that it be recognized by the General Land Office, that it was so recognized, and that Union Land accepted such fact. It also shows the condition of the file through the years when the assignees under Union Land purchased.

Atlantic maintains that it has never accepted the resurvey, and that it claims under the original survey of Barton, which can still be located on the ground. As we view the applicable law, this position is not valid, because Atlantic claims under Union Land Company, who requested and accepted the resurvey, and it claims under E. G. King, assignee of applicant H. R. Smith, and Jno. R. Johnson, to whom the patents were issued. As said in Turner v. Smith, supra, 61 S.W.2d at page 803:

“ * * * suffice it to say that the case of Miller v. Yates, this day decided, recommits this court to the rule that, after a patent has been accepted to certain land, the application is merged in the patent and the patentee, and those claiming under him are estopped to claim any land lying outside the bounds of that patent by virtue of the fact that the first or original application included other lands.”

Regardless of Atlantic’s intention not to accept the resurvey, acceptance was accomplished for it by its predecessors in title. It must and does rely on its record title, and by its record title the land in controversy never passed to Atlantic because it was outside the bounds of the resurvey. Quoting again from Miller v. Yates:

“As said by Mr. Justice Pleasants, speaking for the Galveston Court of Civil Appeals, in a case wherein writ of error was refused, styled Montgomery County v. Angier, 32 Tex.Civ.App. 451, 74 S.W. 957, 959: ‘Plaintiff testified that he did not intend to abandon his claim to the land in controversy by filing corrected field notes of the John Heyser survey and obtaining a patent thereon which did not include the land in controversy, but this is immaterial. The effect of the filing of the corrected field notes and the issuance of a patent thereon at the request of plaintiff was to cancel the original field notes, and thus annul the only title under which plaintiff claimed the land in controversy, and this result was accomplished regardless of plaintiff’s intention.’ ”

The application of Union Land Company for a resurvey, the appointment of Dod to make such survey, his field notes, maps, and report, the General Land Office approval thereof, and Union Land Company’s acceptance, were all a part of the General Land Office file pertaining to this land when Atlantic purchased in 1943, and had been for some thirty years. Again quoting from Miller v. Yates:

“The law charged Miller with knowledge of all material facts which he must have known had he elected to avail himself of his statutory right to ascertain the correctness of the land office sketches and map. Having elected not to avail himself of his statutory right, but having in effect represented to the land office by presentation of the corrected field notes that he no longer asserted claim or title to anything without the bounds of the corrected survey, his rights thereafter were precisely the same as though the file and surveys had stood from the beginning as corrected.”

Thus, it would seem that Union Land Company could claim title only to such land as was described in the corrected survey, and that was all it could pass to its assignee. That assignee, Cordova-Union, charged with knowledge of the condition of the file, later fully paid the balance owing to the State. It was this payment which permitted the patents to issue. When the patents did issue, this case became very similar to Miller v. Yates.

Atlantic urges that it is entitled to rely on Barton’s survey because portions of it which Dod was unable to locate on the ground can, in fact, be located. It presented evidence to that effect and urges the rule that a junior survey cannot tear apart a senior survey which can be located. It also urges that Barton's survey of Blocks 1 and 2 are a block or system of surveys which cannot be torn apart. We are of the opinion that those principles, and the case cited in support thereof, are not applicable to the situation before us. When Dod’s field notes, plat and report were filed and accepted by the General Land Office, they became the official survey of these sections, and when patents issued thereon the question of the land conveyed became final. Once a patent is issued, the survey and file merge into the patent and the grant is final. Forbes v. Withers, 71 Tex. 302, 9 S.W. 154; Anderson v. Robison, 111 Tex. 402, 229 S.W. 459, 238 S.W. 883 (S.Ct.1922); and see authorities cited by this court in Miller v. Yates, Tex.Civ.App., 15 S.W.2d 730, affirmed in Miller v. Yates, supra, in which the Supreme Court quoted from Forbes v. Withers the following:

“ ‘The action of the surveyor is presumed to be proper, and the presumption cannot be disputed after the surveys have matured into patents. Hence the inquiry as to what lands are granted by the patent is directed to the survey as made, and not as it should have been made by the surveyor. The file then becomes immaterial, save as it may throw light upon the actual survey. Booth v. Upshur, 26 Tex. [64] 68.’ ”

We conclude that the effect of the resurvey and its acceptance and the issuance of the patent based thereon was to exclude the land in question from any claim of Atlantic. As plaintiff, it failed to prove its title, and the district court erred in awarding title to the land in controversy to Atlantic.

The judgment of the district court is accordingly reversed and judgment here rendered that appellee, as plaintiff, take nothing.


author: CLAYTON, Justice.

text:
    SOUTHWESTERN SHEET METAL WORKS, INC., et al., Appellants and Cross-Appellees, v. C. H. LEAVELL & COMPANY et al., Appellees and Cross-Appellants, Filtron Company, Inc., Appellee.
    No. 5811.
    Court of Civil Appeals of Texas. El Paso.
    April 5, 1967.
    Rehearing Denied May 10, 1967.
    Peticolas, Luscombe & Stephens, Wayne Windle, Jr., El Paso, for appellants.
    Collins, Langford, Pine & Woodard, El Paso, for Filtron Co., Inc.
    Kemp, Smith, White, Duncan & Hammond, William J. Derrick, El Paso, for Leavell & Co. and others.
   OPINION

CLAYTON, Justice.

On March 21, 1963, C. H. Leavell & Company of El Paso, Texas, (herein known as “Leavell”) entered into a contract with the United States Government, through the Army Corps of Engineers, for the construction of certain radar facilities at White Sands Missile Range in New Mexico known ns the “ZMAR” Facility or project. Lea-vell subcontracted the mechanical portion of the work to Brown-Olds Corporation (known herein as “Brown-Olds”) including the furnishing and installation of wave guide filters, for radio wave shielding. .Brown-Olds, in turn, subcontracted a portion of its work to Southwestern Sheet Metal Works, Inc. (known herein as “Southwestern”) including the furnishing and installation of the wave guide filters. Southwestern executed a purchase order agreement with the Filtron Company, Inc. (known herein as “Filtron”) for the manufacture and delivery of the filters within the prime contract completion schedule and according to plans and specifications for such filters included in the prime contract.

When the wave guide filters were received by Southwestern from Filtron and installed, several of the filters were alleged not to meet the attenuation requirements of the specifications and these filters were rejected by the Government. Southwestern informed Filtron of the rejection and a dispute arose as to the cause of the failure, with Filtron maintaining that these filters were damaged in the installation by Southwestern. In an attempt to correct the alleged deficient filters and prevent delay of the whole project, both Southwestern and Leavell made certain expenditures of time and money. Finally Filtron delivered supplemental filters, but the project was delayed from the original completion date of November IS, 1963 for installation and testing of the filters until on or about May 4, 1964. The entire project was to have heen completed by December 22, 1963 with a provision that a penalty of $1,000.00 per day would be exacted by the Government for a delayed completion. However, this penalty was not withheld by the Government in its final payment to Leavell, and the latter makes no claim for such damages in this suit.

However, Leavell withheld from Southwestern the amount it had expended in attempting to correct the filters, and Southwestern withheld such amount as it had expended for such purpose from the purchase price owing to Filtron. Filtron then brought this suit against Southwestern and Leavell for recovery of the balance of the purchase price, and Southwestern and Lea-vell filed counter-claims for their damages for the failure of the filters to meet specifications. Leavell also filed against Brown-Olds, which became a third-party defendant, and which filed a cross-action against Southwestern and Filtron.

In the trial a total of thirteen special issues were submitted to the jury, which special issues will not be dwelt upon individually except as necessary under the various points of error. The trial court entered judgment in the following terms: The defendants Leavell and Southwestern, and cross-defendant Brown-Olds having stipulated that should cross-defendant Brown-Olds be found to have breached its contract with Leavell, then Southwestern would be deemed to have breached its contract with Brown-Olds in the same particulars and to the same extent; and the court having granted plaintiff Filtron’s motion for directed verdict on defendant Leavell’s counter-claim against Filtron at the close of all evidence, and also having granted at such time Leavell’s motion for directed verdict against Filtron on its suit against Leavell, and based on the jury’s findings, the court entered judgment in favor of Filtron in the amount of $8,488.61 against Southwestern; in favor of Leavell against Brown-Olds on the former’s cross-action in the amount of $2,574.25 plus $1.00 as nominal damages plus attorney’s fees in the amount of $1,250.00; in favor of Brown-Olds against Southwestern on the former’s cross-action in the amount of $3,825.25; and since Leavell had withheld from Brown-Olds the sum of $2,574.25, and Brown-Olds in turn withheld the same sum from Southwestern, the last-named was given credit for said .amount as against Leavell and Brown-Olds, so that the judgment in favor of Brown-Olds against Southwestern was reduced by $2,574.25. Filtron took nothing against Leavell, and Leavell took nothing on its counter-claim against Filtron. Leavell took nothing on its cross-action against Southwestern, and Southwestern took nothing on its cross-action against Leavell and Brown-Olds. Southwestern’s motion to disregard certain jury findings and for judgment N.O.V., and for new trial, were overruled, as were all motions for judgment on the verdict, from which this appeal is taken by Southwestern, Brown-Olds and Leavell.

The First Point of Error by appellant Southwestern complained of the trial court’s overruling Southwestern’s motion for new trial because the evidence presented at the hearing on such motion proved that harmful jury misconduct occurred as a matter of law. The alleged misconduct occurred principally in the jury’s answers to Special Issues 3, 4, and 11. Special Issue 3 inquired as to whether Filtron fabricated and delivered to Southwestern all the filters (not including supplementary filters) in accordance with the plans and specifications. The jury answered “No”. Issue 4 inquired what sum of money was reasonably expended by Southwestern in connection with the failure of Filtron to furnish filters meeting the plans specifications, if the jury found they did so fail, to which the jury answered $.00 (zero). Special Issue 11 inquired whether Southwestern orally agreed with Filtron that if Filtron would furnish supplementary filters, Southwestern would pay Filtron the sum of $8,580.32 and would install these filters at no expense to Fil-tron and waive any claim to damages because of the failure of some of the original filters to pass the frequency range test. The jury answered “yes” to this issue. There were attached to the motion for new trial the affidavits of six jurors, and four jurors were called by Southwestern and testified at the hearing on the motion, as well as two jurors called by Filtron.. It seems advisable to quote parts of the jurors’ testimony here. One, Alice L. Gereche, testified in part as follows:

“Q Was there any discussion during that time about the possibility of a hung jury or not?
A Yes, sir, there was. On the third question, there was a discussion. One of the jurors said that if we didn’t agree with him that he was going to hang the jury.
Q Okay. Do you remember whether or not most of the questions were answered before the last day or on the last day?
A Most of them were on the last day.
Q Were on the last day ? I hand you a copy of the questions that you had in the juryroom and ask you if you can remember whether or not Questions No. 3, 4, and 11 were answered on the last day or before the last day.
A They were answered the last day, right together.”
“A Well, I do remember that we discussed it thoroughly, and it seems to me that we did discuss it in two parts. We wanted Filtron to be paid what Southwest owed them. We also — we didn’t want Southwest to waive all their expenses.”
“Q In talking about the damages question, do you remember any of the discussion about Southwestern’s damages ?
A I just remember that — that Mr. Haverly [foreman of the jury] assured us that we didn’t have anything to worry about, that Southwest was bonded or insured, that most companies are. In his experiences, he found it so, so we just agreed more or less simultaneously, we all just agreed that no one was going to be hurt; we didn’t want anyone hurt.”
“Q What did you say ?
A I said, ‘Well, let’s get the show on the road. If they’re bonded, well, we’re all right. Let’s answer this thing “yes”, and let’s don’t have a hung jury.’
Q After that, did you, in fact, answer it ‘yes’ ?
A- Yes.”
“A Well, Mr. McVicker said that he definitely was not going to answer No. 3 ‘yes’, and that if we would go along with it and answer No. 4 ‘no’ and No. 11 ‘yes’, that—
Q Did he discuss these three questions together or—
A We went on ahead; we skipped questions and tried to come to some agreement on these questions, but really and truly the thing I remem-, ber the most about it was just the fact that we wanted Filtron to be paid their $8,580.32, and we didn’t want Southwest to be stuck with all the expenses, and we were just trying to come to a decent agreement.”
“Q Let me ask you if you recall any discussion about the answers and what would happen if they were answered a certain way.
A Well, we just decided that if they were answered like this, as I have repeated, no one was going to be hurt by it. If Southwest was protected, well, that’s what we wanted; that’s ■ what we were after.
Q Okay. Did several jurors enter into this discussion concerning the bonding company ?
A Yes. '
Q Approximately how many ?
A Several did.
Q I beg your pardon ?
A Oh, approximately three.
Q Do you recall what the foreman said as far as his experiences are concerned ?
A Well, he said that he had had worked with filters of this type or similar, and what else did he say — he said that he was quite sure that they— that Southwest would be bonded and protected, and Mr. Juen for one and myself for the other spoke up and said, ‘Well, if it’s a case where — ’, and everybody was in agreement; it was just more or less an agreement.”

Another juror, Richard Juen, testified:

“Q Do you remember who stated this?
A Well, as to my — I recall the foreman [Mr. Robert W. Haverly] was the one that brought up the bonding company issue. He said he was familiar with this type of contract or one similar to it as well as familiar with the bonding companies, and he felt sure that there was a bonding company involved.”
“Q What was said in this connection in the juryroom after this bonding company was brought up, what did they say about it?
A Well, they said that since this — by answering No. 3 ‘no’, and this No. 11 ‘yes’, the bonding company would stand any damages; therefore, nobody would be hurt, neither Filtron nor Southwestern.”
“A After the bonding company issue was brought out, it was brought up by one juror that if we would go ahead and answer the question to No. 3 ‘no’; answer Question No. 11 ‘yes’, then as far as they were concerned, it was a ‘yes’ answer from there on * *
“A We answered Question No. 4 when we answered Question No. 3 and 11.
Q Which ones did you answer first; do you recall?
A Well, I recall a discussion about a— on Question No. 3 earlier — early the first day that under no circumstances this one juror would change his mind, and it would be a hung jury as far as he was concerned, and we didn’t get anywhere on No. 3 and No. 4 as well. We went all the way to No. 11, and before Question No. 4 was answered. I would say we answered No. 3 first.”

Also a juror, Roland Kelly testified:

“Q What was said?
A It was mentioned that by — it was mentioned that there could be a— that they might be covered by a bond.
Q Approximately how many jurors mentioned this ?
A Three or four.
Q Was this discussion before or after you answered Question No. 11?
A Discussion was before.
Q What happened after you answered it — I mean — excuse me — what happened after this discussion ?
A It more or less brought it to a head; we came to agreement sooner.”
“Q After this discussion, how much longer did the jurors continue to deliberate ?
A Well, very short time after that.”
“Q Do you remember when you first began discussing Question No. 11, do you remember whether a majority of people were for a ‘no’ vote or a ‘yes’ vote on Question No. 11.
A The majority was for a ‘no’ to begin with.”

One William R. Naismith, juror, testified:

“Q What did you ask ?
A Who would pay for these damages and whether Filtran or if Filtran was paid, who would pay it.
Q And what was the answer ?
A That a bonding company is set up for such things.
Q Who told you this?
A The foreman.
Q Exactly what did he relate to you as best you recall ?
A As I recall, he said that this was the performance of a bonding company.”
“A It was discussed that since Filtran would get their money and Southwest would not be hurt too bad — in other words, both sides be pretty well settled, we would answer it with a ‘yes’.
Q After this discussion, how did you answer it?
A ‘Yes’.”
“Q Do you recall whether or not any other questions were discussed in connection with Question No. 11?
A Yeah, we figured by answering this one ‘yes’, and I think the third and the fourth as they were answered would more or less equalize everybody concerned.
Q Was this stated in the juryroom?
A It was.
Q Do you remember who stated it?
A No. One of the jurors that was there.”

On the other hand, another juror, J. E. Molder, Filtron’s witness, testified:

“Q And I’ll ask you whether or not from time to time, as the discussion insued, the foreman would instruct the jury that they were getting out of the record and to consider only matters that were in evidence.
A He did.
Q On how many occasions in your—
A Well, I couldn’t say for sure.
Q Well, as many as five, ten—
A Well, I would imagine it would be as many as five anyway.”
“Q After the foreman had so warned the jury, what, if anything, did the jury do then?
A Well, he tried to get them back on the business at hand.
Q Do you recall anyone in the jury-room saying anything about some bonds and that it didn’t make any difference how the questions were answered that a bonding company would pay anyway; did you ever hear that, sir ?
A I don’t remember if I did.”
“Q Mr. Molder, would you say that there — you wouldn’t deny under oath that that was mentioned, would you?
A Well, I would have to say that I didn’t hear it if it was mentioned or I don’t remember hearing it; let’s put it that way.
Q You just don’t remember hearing it?
A I don’t remember hearing it.”

And Mr. Haverly, foreman of the jury, another Filtron witness, testified as follows:

“Q All right, sir. Now, do you recall anyone saying anything about a bonding company paying?
A No, sir.
Q Did you ever say anything like that?
A No, sir, not to my recollection, and I think I would know it if I did.
Q Did you ever hear anything like that?
A No, sir — I heard it there after the case was over.”
“Q Was there any discussion that -in order to reach the end that you were seeking that No. 3 should be answered ‘no’, No. 4 ‘zero’, No. 11 ‘yes’ ?
A This was the crux of the whole matter.”
“Q It became easier to answer them after this one juror explained how they should be answered?
i
A He didn’t explain the rest of them, just these two was the way — the way — the main thing was on No. 3.
Q And he explained how they should be answered?
A He explained how they could be answered.
Q To achieve this particular end?
A Right.
Q And then after he explained that, why, they were answered that way?
A Uh-huh.”
“Q In other words, is what you’re saying is a fair statement, a summary of what you’ve been saying that one juror — ”
■“A He stated that he had a solution, and he read it, and he explained — I don’t recall just exactly how, but he explained it where if we answered a question ‘no’, and the other question ‘zero’ that it would solve the problem, that the people wanted to see Filtron receive their money * *

On the matter of jury misconduct, Southwestern cites us to Travelers Insurance Company v. Carter, 298 S.W.2d 231 (Tex.Civ.App., 1957; ref., n. r. e.), which was a Workmen’s Compensation case in which the issue of whether the injured employee had suffered incapacity which was permanent or only temporary was hotly contested. It was contended by appellant that there was jury misconduct requiring a reversal of the judgment rendered in favor of Carter. On motion for new trial by the insurance company, four jurors were called as witnesses at the hearing, one of whom, a Mrs. Duckett, testified that during deliberations another juror had related his personal experiences under similar conditions, and there was some discussion about this by the jury, although the jury had been warned by another juror that this was improper. The other three jurors appearing at the hearing, including the foreman, did not deny that such a discussion had taken place, but merely testified that they hadn’t heard it or didn’t remember having heard it, which, it will be seen, is very much like our case here. The court in the Carter case held:

“ * * * It is well settled that where there is a conflict in the evidence on whether or not misconduct occurred the question for determination is one of fact and the decision of the trial court is final. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462. We cannot agree however, that the evidence at the hearing of the motion for a new trial presents a question of fact. Mrs. Duckett’s positive and uncontroverted testimony shows in effect that one of the jurors related his own personal experience in obtaining employment while he was suffering from incapacity by reason of a hernia and expressed the opinion that appellee would have to sign a waiver of any partial incapacity he had in order to obtain employment.”
“The testimony of neither of the other three jurors can be construed as a denial of Mrs. Duckett’s statement and account of the jury misconduct. The effect of the testimony of two of the jurors was that they didn’t hear it or didn’t remember hearing it. Neither by positive statement nor by implication do they indicate that they were at all times during the jury deliberations in position to have heard the matters related by Mrs. Duckett if they had occurred and that it would have been impossible or at least improbable for such misconduct to have occurred without being heard by them. * * * ”
“ * * * Mrs. Duckett’s testimony concerning the jury misconduct therefore stands unchallenged. There is no conflicting testimony upon which to base a finding of fact contrary to her version of the matter.
“The remaining question is whether the undisputed misconduct of the jury shown by Mrs. Duckett’s testimony was such that it was calculated to and probably did prejudice the rights of the appellant. Rule 327, supra. In our opinion this question must be answered in the affirmative. * * * In this state of the evidence we cannot say that no probable injury resulted to appellant by reason of the unsworn testimony of the unidentified juror to the effect that he couldn’t get a job without signing a waiver of his partial disability and that Carter would probably have to do the same if a jury found that he was only disabled to the extent of IS per cent. Although warned of the impropriety of such misconduct the discussion continued. We are of the opinion, after a consideration of the entire record, that there was probable injury to appellant from the misconduct shown by the undisputed evidence. White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200.
“The judgment of the trial court is reversed and the cause is remanded for another trial.”

Furthermore, there was the matter of the jury discussing what end they desired to achieve, and the manner in which this could be accomplished. We are cited to Crawford v. Consolidated Underwriters, 323 S.W.2d 657 (Tex.Civ.App., 1959; ref., n. r. e.) where it is held:

“ * * * But the jury’s conduct in first agreeing upon the amount of money they wanted the plaintiff to receive and in then deliberately endeavoring to answer the special issues in a manner that would entitle the plaintiff to judgment for that amount cannot be so lightly brushed aside. That it amounted to misconduct is believed to be established by the uniform decisions of our courts.” (Citing cases.)

We are also cited to Prudential Fire Ins. Co. v. United Gas Corporation, 145 Tex. 257, 199 S.W.2d 767 (1946) which holds:

“The trial court found that two of the jurors agreed before they voted on any of the special issues that a verdict should be rendered for the gas company and, pursuant thereto, answered each issue so that the verdict they rendered would not permit the insurance company to recover. The court’s conclusion of law on the facts found was that this conduct would not ‘authorize’ him to grant a new trial. This was error in that the action of the two jurors constituted misconduct. Having held that the misconduct occurred it became the court’s province to determine under all the facts whether injury probably resulted to the insurance company. Texas Rules of Civil Procedure, rule 327; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462. The fact is inescapable in view of the entire record, that this was reversible error. When misconduct is established both the trial court and the reviewing courts have the right to review the matter in the light of the entire record. Id.”

In the light of the entire record we conclude that the misconduct of the jury above set out resulted in injury to the appellant Southwestern herein.

If anything, the case before us is a stronger case for reversal than the above cited cases. We feel impelled, therefore, to sustain the first point of error. We should add that Filtron’s brief countered with the statement that Southwestern itself had offered into evidence two exhibits which, from examination, reveal reference to bonds and sureties which led the jury to their conjecture, and having so introduced these exhibits, Southwestern could not here claim misconduct of the jury “because it inferred, if it did, from such exhibits, that bonds were required as between the various parties.” (Emphasis supplied). These exhibits were the contract of Brown-Olds and Southwestern, and between Leavell and Brown-Olds. Upon examination, we find in the first contract the words, “It is understood this subcontract includes all insurance necessary for the completion of this subcontract”; and in the second, the words “The following items are not considered a part of this subcontract * * * 2. Bonds.”; and, in Section 27: “The subcontractor shall furnish all guaranties, bonds, * * * and shall, if requested by the Contractor, furnish to the Contractor adequate performance and payment bonds * * * acceptable to the Contractor.” These exhibits were admitted in a limited form, not as against Filtron, and there is no showing that they were carefully examined, if examined at all, by the jury. Certainly no evidence was presented that any juror referred to these provisions and no juror was asked by Filtron’s attorneys at the new trial hearing if he or she had examined these exhibits. It would be the purest surmise on our part to hold that these provisions had actually influenced the jury in any way. The first point of error is sustained and this cause remanded for new trial.

In the event of possible retrial, we believe that none of the other points of error need be considered here, with the possible exception of the sixth point, but such other points of error, if raised on a new trial, should be re-examined by the trial court in the light of testimony there adduced. The sixth point of error complains of the refusal of the court to submit requested Special Issues Nos. 1 and 2, and requested instruction No. 1. These requested special issues and the requested instruction were requests of both Leavell and Southwestern. Requested Special Issue No. 1 would have inquired of the jury as to whether, at the time Filtron made its warranties to Southwestern (as to compliance of the filters with the plans and specifications), a reasonably foreseeable result of a breach of such warranties would be a claim against Southwestern for breach of contract in its work on the ZMAR project. Requested Issue No. 2 would have inquired whether the failure of the filters to meet these plans and specifications, if so found by the jury, resulted in the claim against Southwestern for such breach of contract. The requested instruction correctly defined “reasonably foreseeable result”. We feel that these requests should have been granted under the evidence presented here, but of course in the event of a new trial, the trial court will be governed by the evidence presented there.

This also is true of the sole point presented by Leavell and Brown-Olds upon appeal, that the trial court erred in effect, in granting Southwestern’s motion for judgment N. O. V. by refusing to render judgment for Leavell against Brown-Olds and Brown-Olds against Southwestern in the amount of $16,361.62 (the amount prayed for including $1,250.00 as attorney’s fees).

With these observations and our ruling as to Southwestern’s first point of error, this cause is reversed and remanded.


text:
    Emerson WILLIAMS, Appellant, v. Jennie Mae ANDERSON, Appellee.
    No. 16906.
    Court of Civil Appeals of Texas. Dallas.
    April 21, 1967.

      L. A. Bedford, Jr., Dallas, for appellant.
    William VanDercreek, Dallas, for appel-lee.
   CLAUDE WILLIAMS, Justice.

Trespass to try title action. Emerson Williams brought this suit against Jennie Anderson seeking title and possession of certain real property situated in the City of Dallas, Texas, basing his claim to title upon a warranty deed executed by Willie Anderson on November 15, 1957, conveying the property (subject to a life estate by grantor) to Emerson Williams, said deed being recorded in the Deed Records of Dallas County, Texas. Jennie Anderson, the surviving widow of Willie Anderson, filed her answer in which she asserted that the warranty deed relied upon by plaintiff was legally ineffective because (a) Willie Anderson did not have sufficient mental capacity at the time h.e conveyed said property ; and (b) the deed was never delivered to Emerson Williams.

Following trial before the court and a jury a special issue verdict was returned which found (a) that Willie Anderson did have mental capacity to execute the deed at the time it was executed, and (b) there was no delivery by Willie Anderson of the deed to Emerson Williams. Plaintiff filed his motion for judgment non obstante veredicto asking the trial court to set aside and disregard the jury findings concerning delivery of the deed. This motion was overruled and judgment was rendered decreeing title to the property in Jennie Anderson. Plaintiff appeals.

By his points 1 and 2 appellant contends (1) that the court should not have submitted Special Issue No. 2 (being the issue concerning delivery of the deed) because there was no evidence to support the submission of said issue to the jury, and (2) that the court should not have rendered judgment based upon the jury’s answer to Special Issue No. 2 because the answer thereto was lacking in support of sufficient evidence. or was contrary to the great weight and preponderance of the evidence. Consideration of these points has required us to carefully examine the entire record in the light of the rules announced by our Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Having done so we find ourselves unable to agree with appellant’s contentions here presented and overrule same.

The evidence is uncontroverted that in November 1957 Willie Anderson, deceased, did execute a warranty deed purporting to convey the property in controversy to appellant Emerson Williams, subject to a life estate. It is also uncontroverted that said deed was filed for record with the County Clerk of Dallas County, Texas and that, after recordation, it was returned to Willie Anderson. Appellant testified that Willie Anderson then turned the deed over to him and that he kept it in his possession for about a year and then returned the deed to Willie Anderson. To impeach the testimony of appellant, an interested witness, appellee called as a witness Glenda Fisher, a court reporter, who testified that she reported the oral deposition of appellant and that during the questioning appellant was asked: “When did Willie give you a copy of that deed?” To which appellant answered : “Willie didn’t give me a copy. He kept the deed himself.”

The testimony was undisputed that there was no consideration made or tendered for the deed by appellant. The record reveals that in 195¾, Willie Anderson, then 63 years of age, married appellee, Jennie Anderson; that said property was the only property owned by Willie and Jennie Anderson, it being the present homestead of Jennie Anderson; that Willie Anderson died in May 1963, at which time appellant brought the trespass to try title action claiming ownership of said property by virtue of the deed. Appellee claimed ownership of the property as the surviving widow of Willie Anderson.

Appellant introduced no other evidence in support of his contention that the deed was manually delivered to him by Willie Anderson. Appellant called no witnesses to testify as to their knowledge of the existence of the deed and it was undisputed that neither Emerson Williams nor Willie Anderson told anyone of the existence of the deed nor did Williams in any manner assert an interest in said property until the time of Anderson’s death. The record discloses that Willie Anderson continuously treated the property as belonging entirely to himself; that he subsequently executed a will which purportedly devised the property to others than appellant; that the mortgage payments on the property were paid out of the community estate of Willie and Jennie Anderson; and that appellant is not in possession of the original recorded deed.

It is a well settled law in Texas that the question of delivery of a deed is controlled by the intent of the grantor, and in determining the existence or nonexistence of such intent, it is within the province of the jury to consider all of the evidence, including the mental condition of the grantor. While the jury, in answer to Special Issue No. 1, found that at the time of the execution of the deed involved Willie Anderson did have sufficient mental capacity to understand the nature and subject matter of such deed, such finding does not preclude the jury’s consideration of the mental condition of Willie Anderson at the time of his alleged delivery of the deed to appellant. There is abundant evidence in this record to the effect that Willie Anderson was not mentally competent and the jury was certainly entitled to consider this fact in connection with their answer to the issue relating to delivery.

Appellant made no objection to the submission of Special Issue No. 2. We think that the evidence is sufficient to raise the issue as to whether Willie Anderson did deliver the deed to appellant and we also are of the opinion that the answer of the jury to Issue No. 2 cannot be said to be contrary to the great weight and preponderance of the evidence. The evidence presented is such that a jury might reasonably believe that Willie Anderson did not deliver the deed to appellant. In any event, the evidence is such that reasonable minds might differ with respect thereto and as such the jury’s finding is adequately supported.

By his point 3 appellant contends that appellee failed to rebut and overcome the legal presumption of delivery of the warranty deed in question which was created by the filing of said deed for record with the County Clerk of Dallas County. In this connection appellant argues that the uncontroverted act of filing the deed by Willie Anderson with the County Clerk creates prima facie evidence of delivery and acceptance thereof and that appellee has offered no evidence to overcome such fact. To support his contention appellant cites Gravis et al. v. Rogers et al., Tex.Civ.App., 214 S.W.2d 886; Levy v. Winfree et al., Tex.Civ.App., 99 S.W.2d 1043; Ford et al. v. Hackel et al., Tex.Comm.App., 124 Tex. 402, 77 S.W.2d 1043; Mitchell et al. v. Mills et al., Tex.Civ.App., 264 S.W.2d 749; Baxter et al. v. Beaupre et al., Tex.Civ.App., 295 S.W.2d 718; and First State Bank of Wortham v. Bland, Tex.Civ.App., 291 S.W. 650.

These cases announce the settled law in Texas that the filing of a deed for recordation establishes a rebuttable presumption of delivery. The burden was cast upon appellee to rebut this presumption by showing a lack of intent to convey the land in question to appellant.

The court, without objection on the part of appellant, gave to the jury the following instruction in connection with Special Issue No. 2: “Delivery of a written instrument is a parting with possession of custody thereof, or any other act on the part of the grantor that shows an intention that same become operative.”

The Supreme Court of Texas in Thornton v. Rains, 157 Tex. 65, 299 S.W.2d 287 had occasion to discuss the question of evidence of intention relating to delivery of a deed. In that case one Medlin executed, acknowledged, and recorded a deed of gift purporting to convey to his two minor children a remainder interest in a tract of land. He subsequently delivered to another grantee a general warranty deed purporting to convey a fee simple in the same tract of land. Claimants under a quitclaim deed from the children commenced a trespass to try title action against the possessors holding under the second deed. The testimony showed that the grantor, Medlin, remarried shortly after the execution of the first deed, and that he lived several years after its date without telling anyone of its existence. The jury found, by means of special issues, that at the time the deed to the children was filed for record, the grantor did not intend to convey the land to the children. The Supreme Court upheld the verdict and judgment by what the court styles as “negative” evidence. By doing so the court established the rule that if any evidence is introduced, no matter how negative, tending to show lack of intent to convey, a jury will be given extensive discretion to find that a recorded deed, valid on its face, was not actually delivered. The Supreme Court said, inter alia:

“Even if C. H. Medlin [grantor] had caused the deed to be recorded, that fact of itself would not have been determinative of the question of delivery of the deed and his intention to place title in his children. If there was no intention on his part to deliver it or divest himself of title the deed was not effective as a conveyance. * * *
“The question of delivery of a deed is one of intention on the part of grantor to be determined from all the facts and circumstances.”

We think this opinion of the Supreme Court is controlling of the factual situation here presented. Even though the testimony may be styled as “negative” in character yet it is sufficient to support the jury's finding relating to intent on the part of the grantor of the deed here in question. From all of the facts and circumstances revealed by this record the jury was justified in finding that there was no delivery of the deed from Willie Anderson to appellant.

We have carefully considered all of appellant’s points of error and finding the same to be lacking in merit they are overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: PARKER, Justice.

text:
    COAL OPERATORS CASUALTY COMPANY, Appellant, v. James E. RICHARDSON, Appellee.
    No. 6845.
    Court of Civil Appeals of Texas. Beaumont.
    April 13, 1967.
    Rehearing Denied May 10, 1967.

      Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.
    Joe H. Tonahill, Jasper, for appellee.
   PARKER, Justice.

This is a Workmen’s Compensation case. In the trial court, on the verdict of the jury, plaintiff, James E. Richardson, was awarded judgment against Coal Operators Casualty Company for total and permanent incapacity as a natural result of injuries sustained by plaintiff on May 26, 1963 while in the course and scope of his employment by Helen Versie Richardson and for the recovery of medical expenses in the sum of $3,262.50. - The parties will be called plaintiff and defendant as in the trial court.

The findings of the jury in answer to special issues Nos. 1, 4 and 13 are attacked by defendant insurance company. In answer to the numbered issues below the jury found:

1. On or about May 26, 1963 the plaintiff was an employee of Helen Ver-sie Richardson.
4. That plaintiff on that date received an accidental injury in the course of his said employment.
13. In the year immediately preceding May 26, 1963 plaintiff’s average daily wage earned during the days he worked in such employment was $10 per day.

On Sunday, May 26, 1963 at about 8:00 p. m. plaintiff was injured in a collision while driving a truck owned by Helen Richardson. She was in the logging business, owned all the equipment used in the business, paid all expenses of the business and the wages to all persons including plaintiff, paid for the. oil, gas, repairs, parts and maintenance required for the operation of the truck. In selling logs Helen Richardson received payment for the hauling. The stumpage was paid to T. O. Sutton & Sons. Helen Richardson paid her own bookkeeper, who withheld social security and withholding tax from the payroll check to plaintiff. Plaintiff received a second check from Helen Richardson. Both checks represented payment to plaintiff for the labor he performed for his employer, cutting, bunching and hauling logs from the woods and transporting logs that were culled upon inspection by a box factory, upon a railroad switch track, to Stephens-Weatherford Lumber Co. (Stephenson Lumber Co.). Periodic inspection of cull logs was one of plaintiff’s duties as an employee, for which he was paid by Helen Richardson, the employer. He was paid by her upon a time basis.

The premium for workmen’s compensation insurance carried by Helen Richardson on plaintiff was paid by her but for less than it should have been because she paid plaintiff $30 a week by another check. Likewise, the withholding of social security and income tax by the bookkeeper was less than it should have been. However, plaintiff had no control over the bookkeeper. The agencies of the Federal government are not parties to this suit. Plaintiff did not know of and did not participate in profits from the logging business owned by his mother and employer, Helen Richardson. She, not plaintiff, kept a second set of books on the logging business that her bookkeeper, Mrs. Fowler, did not maintain or manage. Plaintiff’s weekly wage was $60 a week and daily wage was $10. He had been employed for at least 300 days for the year preceding May 26, 1963.

Helen Richardson, not plaintiff, approved new employees and fixed their rate of pay. She advised plaintiff on things concerning the job. His time included the hours he worked on Saturday and Sunday and time spent repairing equipment. All of Helen Richardson’s employees were engaged in logging.

On May 26, 1963 plaintiff left his employer’s home in Colmesneil where he and his employer lived to go to Simon’s Switch about 2Y2 miles north of Colmesneil. He was driving a pickup truck owned by Helen Richardson furnished him to be used in her logging business. He went to Simon’s Switch to inspect the logs culled by the box factory and on the switch, to determine whether or not there were enough culls to make a load to carry to Stephens-Weather-ford Lumber Co. (sometimes called Stephenson Lumber Co.). Leaving Colmesneil he travelled north on Highway 69 about 2 miles, travelled east on a Farm to Market road ½ mile and left this road and trav-elled 600 yards to Simon’s Switch on the railroad. There he inspected the logs for culls. Then he returned to Colmesneil on a dirt or gravel road at its intersection with another road about 2 blocks from the blacktop Lake Tehas road. The latter runs east and west through Colmesneil. Plaintiff was travelling south, when it collided with a truck travelling east. Plaintiff’s wife was notified of the accident at 7:30 or 8:00 p. m. There was no deviation en route from Simon’s Switch to his employer’s home where the truck was kept. He went one way and returned another way. Each was a direct route. At the time of the collision and injury to plaintiff he was engaged in the furtherance of the business of his employer, driving a truck furnished and controlled by the employer. He had not abandoned the furtherance of his employer’s business and the trip was not in furtherance of his personal or private affairs.

Defendant insurance company urges and contends in various points of error that the submission of special issues 1, 4 and 13 as well as the jury’s answers thereto, were supported by no evidence, insufficient evidence and were contrary to the overwhelming weight and preponderance of the evidence so as to be manifestly wrong and unjust. In the “no evidence” points, that part of the record most favorable to the appellee, the plaintiff below, supporting the jury’s findings is controlling. The “no evidence” points are overruled. All the record and all evidence is reviewed in considering the “insufficient evidence” points and those points contending that the jury’s answers are contrary to the overwhelming weight and preponderance of the evidence so as to be manifestly wrong and unjust. Each and all of such points are overruled.

The defendant issued its policy under the Workmen’s Compensation Act covering the employees of Helen Richardson. It urges that fraud was perpetrated upon the Federal government, fraud upon the Texas Employment Commission and fraud upon the insurance carrier. The fraud upon the insurance carrier was the failure of the employer to pay adequate premiums under the policy. Plaintiff had no obligation to pay defendant insurance company any premiums on this policy. Under the Workmen’s Compensation Act and the policy, defendant is obligated to pay the injured plaintiff under the terms of the policy and the statute. Anderson-Berney Realty Co. v. Soria, 123 Tex. 100, 67 S.W.2d 222; Maryland Casualty Co. v. Hendrick Memorial Hospital, 141 Tex. 23, 169 S.W.2d 969 (1943, Comm.App., opin. adopted by S.Ct.). This protection to plaintiff was not lost because his employer failed to pay the proper premium to the insurance company. Home Life & Accident Co. v. Orchard, 227 S.W. 705 (Tex.Civ.App.1921, n. w. h.) ; Federal Underwriters Exchange v. Morton, 167 S.W.2d 267, 270 (Tex.Civ.App. 1942, wr. ref’d want of merit). This point of error is overruled.

During the course of the trial, the defendant requested the court to permit it to file a trial amendment alleging plaintiff was an independent contractor. The trial court refused its motion. This request was made after the introduction in evidence of checks of $30 each, signed by the employer and payable to the employee, on each check there being written “contract labor”. Plaintiff received these checks in part payment for his work for Helen Richardson. In refusing to permit defendant to file this trial amendment, the trial court stated that the checks had been available to the defendant since the inception of the case, overruled the defendant’s motion for that and other reasons. There is no other probative evidence that plaintiff was an independent contractor. We find no abuse of discretion on the part of the trial court in refusing to allow the filing of this trial amendment.

The defendant has nine points of error complaining of jury argument. In his opening argument attorney for plaintiff stated: “We know he knew he was going there and left there coming home, at which time he left the Switch going his usual way coming home.” and “The usual way James went out to the Switch was up 69 and down that dirt road, a variation.” This was objected to on the ground there was no testimony in the record whatsoever he was going his usual way home. The court instructed the jury: “You will remember the testimony better than I. If in your remembrance that argument is contrary to your memory, disregard it.” Whether or not it was the usual way for plaintiff to return home from Simon’s Switch was immaterial for he made the return trip in a direct route in furtherance of his employer’s logging business. Defendant contends that plaintiff’s counsel in his argument told the jury that when Cecil Davis, a witness called by the defendant, had seen the plaintiff that the plaintiff was on his way to Woodville to pick up a can of diesel oil, which argument was wholly outside the record in this case and was on a most crucial issue. On this matter, defendant urges that his motion for mistrial should have been granted and his objection should have been sustained. No such argument was made in that manner by attorney for plaintiff. The argument made by attorney for plaintiff was in direct reply to the argument by counsel for the insurance company that James Richardson was a liar, was guilty of criminal acts and was not worthy of belief. In reply, attorney for plaintiff said:

“ * * * Wouldn’t it have been easy for James to get up on that witness stand Wednesday morning and say, Yes, I went out to Nugents house; I went out there, yes; I went out there and then I went back home. Wouldn’t that have been easy. If he was going to lie about something, why doesn’t he lie about something that’s going to help him? Wouldn’t it have been easy for James to get up here and say, Yes, I had been to Woodville that afternoon to pick up a barrel of diesel fuel; wouldn’t that have been easy for him to do, and, I saw Mr. Davis. I saw my old friend, Cecil Davis.”

Further, these incidents occurred several hours before plaintiff went to Simon’s Switch and were not upon a crucial issue. The crucial issue was whether or not plaintiff was working in the furtherance of the business of his employer at the time of the accident.

Defendant complains of the un-sworn testimony in the argument by attorney for plaintiff that the defendant had subpoenaed Stephens-Weatherford Lumber Co. records and had not introduced them in evidence. Upon objection the court instructed the jury to disregard the statement and overruled motion for mistrial.

Analyzing, weighing and considering the entire record, each of the arguments to the jury by plaintiff’s attorney and the cumulative effect of the entire argument was not calculated to cause and did not probably cause the rendition of an improper judgment.

All of defendant insurance company’s points of error are overruled.

Judgment of the trial court affirmed.