author: BARRON, Justice. TUNKS, Chief Justice. BARRON, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Jake L. SPARKS, Appellee.
    No. 45.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Dec. 20, 1967.
    Rehearing Denied Jan. 24, 1968.

      Thomas S. Terrell, Gordon A. Holloway, Harman Parrott, Sewell, Junell & Riggs, Houston, for appellant.
    W. W. Kilgarlin, Phelps, Kilgarlin & Snell, Houston, for appellee.
   BARRON, Justice.

This suit was brought by Jake L. Sparks against defendants, Missouri Pacific Railroad Company and Railway Express Agency, Inc., under the Federal Employers’ Liability Act, 45 U.S.C.A., Sections 51-59. Sparks alleged that he was injured on January 25, 1963 while working in a railroad car of a Missouri Pacific train. Defendant, Railway Express Agency, Inc., (hereinafter called REA) received an instructed verdict on the ground that it was protected from the suit herein by workmen’s compensation coverage. The case was submitted to the jury under the allegations that Jake Sparks was an employee of the Missouri Pacific at the time in question, and thus came under F.E.L.A. The jury answered every liability issue in favor of the appellee-plaintiff, Sparks. In answer to the damage issue, the jury stated, “20,000.-00 as suit demands.” The trial court entered judgment on the jury’s verdict against Missouri Pacific in the amount of $20,000.-00, overruled Missouri Pacific’s amended motion for new trial, and Missouri Pacific has appealed to this Court. Appellant attacks the judgment of the trial court by 31 points of error, grouped and collected as 10 propositions, each of which appellant relies upon for reversal of the judgment below.

At the time of trial on January 19, 1967, Sparks was 68 years of age. He testified that he went to work for Wells Fargo in 1916 as a joint train baggageman and messenger, working on board the Southern Pacific run between Hearne and Giddings. During World War I, Wells Fargo was consolidated into American Railway Express and later the name was changed to REA Express. In his alleged capacity as a joint train baggageman and messenger, Sparks has worked on the Santa Fe, Southern Pacific and Missouri Pacific railroad companies. He testified that in 1931, he went to work as a joint train baggageman and messenger with Missouri Pacific and worked on that line, although on several different runs, until he took his retirement in 1963, following the injury made the basis of this lawsuit. At the time Sparks received the injury of which he here complains, he was in the process of lifting a bag of mail on board Train 50 of the Missouri Pacific run from Houston to Baton Rouge, Louisiana. Sparks was lifting a bag of bulk mail in order to stack it in a doorway so that it could be unloaded at Baton Rouge, when he felt a burning or stinging sensation in the area of his groin, followed by a bulging. His condition was subsequently diagnosed as left inguinal hernia with an indirect inguinal hernia extending into the cord structures. He was operated on and the hernia was found and repaired, and the left testicle was removed. The operation took place on February 5, 1963, and following that Sparks remained off work for some three months. He testified that he continued to have a shooting pain in his left leg, and after his return to work, he felt a strain on his left leg. He quit work on August 30, 1963 after ma,ny years work as a joint train baggage-man and messenger. He subsequently was employed as a school patrolman. Trial was almost four years after the date of injury.

The trial court submitted four groups of liability issues to the jury. Each issue was answered in favor of appellee. Special Issues 7, 8 and 9 inquired whether just prior to the occasion made the basis of this suit, the train on which the plaintiff was working made a sudden jerk; whether such action was negligence; and whether such negligence, if any, was a cause in whole or in part of the plaintiff’s injuries. But in a sudden stop or slowing situation, the plaintiff must prove more than the mere fact that the train jerked or slowed. There is nothing in the record to show why the train jerked or slowed, whether there was reason for it, whether there was an emergency, or whether the jerking or slowing was unusual or extraordinary. There must be some evidence of appellant’s negligence in a F.E.L.A. case, and the instant jerking or slowing is without any standard by which ordinary care can be measured. Herdman v. Pennsylvania Ry. Co., 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508; New York, New Haven etc. v. Henagan, 364 U.S. 441, 81 S.Ct. 198, 5 L.Ed.2d 183; Fort Worth & D.C. Ry. Co. v. Bell, 14 S.W.2d 856 (Tex.Civ.App.), err. ref; Taber v. Smith, 26 S.W.2d 722, 725 (Tex.Civ.App.), no writ; 40 Tex. Jur.2d, Sec. 37, p. 502. We sustain appellant’s related points of error, and we hold that the sudden jerk under the facts without supporting proof, cannot form the basis for liability of Missouri Pacific.

Appellant complains that the three remaining groups of issues submitted to the jury which inquired as to a safe place to work, furnishing sufficient employees, and furnishing sufficient equipment, were each general and global issues, and that they were not specific enough to comply with Texas law, under the authority of Barclay v. C. C. Pitts Sand & Gravel Co., 387 S.W.2d 644 (Tex.Sup.) ; Roosth & Genecov Production Co. v. White, Inc., 152 Tex. 619, 262 S.W.2d 99 (Tex.Sup.); Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517, and similar authority. In Great Atlantic & Pacific Tea Co. v. Coleman, 259 S.W.2d 319 (Tex.Civ.App.), no writ; Texas & N. O. R. Co. v. Pool, 263 S.W.2d 582 (Tex.Civ.App), no writ; and Panhandle & Santa Fe Ry. Co. v. Arnold, 283 S.W.2d 303 (Tex.Civ.App), writ ref., n. r. e. (on remand 305 S.W.2d 207), Texas Courts of Civil Appeals have held that the issue inquiring whether a place was a reasonably safe place to work is a general one and is insufficient to impose liability against a defendant. In the case of Missouri Pacific Ry. Co. v. Prejean, 307 S.W.2d 284 (Tex.Civ.App.), no writ, the contrary seems to have been held by the Houston Court of Civil Appeals (First District). The Arnold case above, on certiorari to the United States Supreme Court, was reversed and remanded to the Amarillo Court of Civil Appeals, and a recovery was allowed the F.E.L.A. plaintiff in that case, the Supreme Court of the United States saying:

“ * * * [T]he assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.” 353 U.S. 360,77 S.Ct. 840, 1 L.Ed.2d 1441.

In the Arnold case, the Texas court had held that a general finding that the railroad failed to furnish plaintiff with a safe place to work cannot stand in the face of specific findings exonerating the railroad of any negligence proximately causing plaintiff’s injuries. In Thompson v. Robbins, 157 Tex. 463, 304 S.W.2d 111 (1957), the Texas Supreme Court reaffirmed the position that where an F.E.L.A. suit is brought in a Texas state court, the Texas Rules of Civil Procedure control, and thus Rules 277 and 279 are applicable to special issues and the submission of specific issues of fact to a jury in a Texas state court. See 38 Tex. Jur.2d, Sec. 202, pp. 434-435 . Moreover, the majority sees no reason for the defeating of federal rights by a requirement that specific issues of fact be submitted to the jury under Texas procedural law. In view of the Robbins case, the majority feels that we are bound by the Texas rule as to the submission of special issues, and we accordingly follow that case. We hold that general or global issues cannot correctly be submitted to the jury, over proper objections, in a negligence case, including F.E.L.A. cases.

We do not, however, consider Special Issue No. 3 to be sufficiently global or general or that it should be stricken down under the above rule. The special issue was submitted as follows:

“SPECIAL ISSUE NO. 3
Do you find from a preponderance of the evidence that the Defendant Missouri Pacific Railroad Company, Inc., on or about the 25th day of January, 1963, failed to furnish the Plaintiff as many employees to help Plaintiff in the work he was doing on the occasion made the basis of this suit as would have been done by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances ?”
“We do.”

The issue simply asked the jury whether, Missouri Pacific’s failure to furnish sufficient employees to help plaintiff on the occasion in question was a failure to exercise ordinary care under the circumstances. The real question here presented is the sufficiency of the evidence to sustain the jury’s answer to that issue. Sparks testified that mail helpers were supplied through request to the railroad. He further testified that he had requested the Missouri Pacific train-master to provide additional help, because the mail had continuously increased and the trains were running faster. He could not name the particular officials of Missouri Pacific to whom his requests were made for more help, but we believe he properly identified them. The officials were on the train or at the stations. He made one request for more help in November, 1962, before his injury in January, 1963. The mail and baggage duties were Missouri Pacific business, and he was paid five cents per hour for handling baggage. He made requests for help to REA and Missouri Pacific, and the record shows that he worked for both of them. If the business was express, he requested it through the express company. He was required to handle heavy canvas bags, some as heavy as 100 pounds. He would lift the bags and stack them, and he would drag them in the cars by a rope or by a metal label. The stopping and irregular movement of the train was something he always had to guard against. Mr. Walker, an employee of Missouri Pacific as assistant general manager, told Sparks that he was delaying the train and that he had to hurry and throw the mail back to get the train out.

There is ample evidence in the record to show that Sparks was confronted with many problems in handling baggage and mail and in getting it lined up for delivery to various stations between Houston and Baton Rouge; that he was required to hurry constantly and that by reason of the increased mail and baggage and the speed of the trains, the jury had the right to believe that the job was too difficult for one man. It will be recalled that Sparks was injured in an attempt to lift a 50-pound bag of mail to put it in the stack of mail at the car door.

The evidence is sufficient for the jury to make a finding of negligence on Special Issue No. 3, and to make a finding on Special Issue No. 4 that the failure to furnish help for Sparks was a cause in whole or in part of the injury he sustained. The railroad was put on notice repeatedly, according to Sparks’ testimony, that he needed help and that the mail was increasing and the job was becoming too difficult for one man. While it might be said that the particular act he was performing at the time of the injury had no relation to whether another workman was helping him, the jury had the right to take the opposite view, since the constant hurrying and straining required to handle and line up the mail and baggage placed too great a burden on him on a trip from Houston to Baton Rouge or New Orleans. The jury was not engaged in mere speculation, but was drawing a reasonable inference in reaching the conclusion that Missouri Pacific’s failure to furnish a helper was a factor in bringing about the injury to a man who was five feet four inches in height and who had been partly crippled by Polio. The strain of the fast and hurried work on the train and the constant lifting of heavy bags were such that an injury of the type plaintiff sustained might reasonably have been anticipated as the result of failure to furnish sufficient help. The question of negligence was for the jury, and we must sustain the jury’s findings if there is any evidence to support them. Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352; St. Louis Southwestern Ry. Co. of Texas v. Gillenwater, 284 S.W. 268 (Tex.Civ.App.), affirmed, 294 S.W. 193; Loud v. Sears, Roebuck & Co., 262 S.W.2d 548 (Tex.Civ.App.), no writ. The defense of assumption of risk is not available to the defendant in a F.E.L.A. case. 45 U.S.C.A., Sec. 54; see and compare 38 Tex.Jur.2d, Sec. 157, p. 366.

It must be noted that federal courts have broadened the jury’s function in F.E.L.A. cases so that very little evidence is required to uphold a jury verdict of negligence. Robinson v. Gulf, Colorado & Santa Fe Ry. Co., 325 S.W.2d 432 (Tex.Civ.App.), error ref. And proximate cause in its usual sense is not applicable in a F.E.L.A. case, the test being whether the injury was caused in whole or in part by the defendant. Rogers v. Missouri Pac. Ry. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.

Appellant attacks the finding of the jury that Jake Sparks was an employee of the Missouri Pacific. The claim is that Sparks was an REA employee, paid by REA and under its control. The evidence shows that the express company did employ Sparks and that his personnel records were in its custody. His general orders were usually given by REA. The plaintiff testified, however, that he was a joint baggageman and messenger, handling express for REA and mail and baggage for Missouri Pacific. This testimony was never refuted by the railroad, nor was any evidence produced which tended to show that Sparks was not under the railroad’s right of control in the handling of railroad baggage and U.S. mail. He testified that he made mail and baggage reports to the railroad, and that the railroad employees directed his work in connection with mail and baggage; that he was paid extra for handling mail and baggage, and that the pay came from Missouri Pacific, who paid REA for his work. Plaintiff took directions from railroad employees and made complaints to them. He testified that he held his seniority with the Railway Express Agency through the Brotherhood of Railway Clerks, Steamship, Freight Handlers and Express Employees union. But he testified that he answered to a Mr. Watson, general baggage agent for Missouri Pacific, and was directed and controlled by him and other railroad officals on all matters concerning mail and baggage.

A plaintiff has the burden of proving the relationship of master and servant and that he was engaged in the master’s business when he was injured. Galveston H. & S. A. Ry. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247 ; 38 Tex.Jur.2d, Sec. 219, p. 456; 56 C.J.S., “Master and Servant,” Sec. 175. Where the evidence on the relationship of master and servant is conflicting, the issue should be submitted to a jury. Esthay v. Sherman, 135 S.W.2d 174 (Tex.Civ.App.), writ dismd., judg. correct. And the employee may testify as a witness to the fact of employment. Gibson v. Gillette Motor Transport, Inc., 138 S.W.2d 293 (Tex.Civ.App.), error ref.; Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54, 58. The fact that one performs personal services for another for an agreed compensation carries with it the presumption of the right of control by the employer or beneficiary of the services, and the burden is then upon the alleged employer to show that the relation of master and servant did not exist. Gibson v. Gillette Motor Transport, Inc., supra; Taylor B. & H. Ry. Co. v. Warner, 88 Tex. 642, 32 S.W. 868, 870.

The plaintiff called as a witness H. D. Huffman, assistant general manager for Missouri Pacific, Gulf District, in an attempt to further clarify the nature of Sparks’ employment. Mr. Huffman had been subpoenaed by plaintiff to bring with him records pertaining to the contractual relationship between Missouri Pacific and the Railway Express Agency, and matters pertaining to Sparks’ employment. Mr. Huffman’s testimony was evasive, and he stated that any records pertaining thereto were kept in the St. Louis office of the company, and that he could not produce them. It is clear that there was some arrangement between the two companies, but the railroad could not or would not produce evidence of any such arrangement^ or contract which might limit Sparks’ employment and authority or add to it. We must therefore assume that any agreement between REA and Missouri Pacific would have been of no benefit to Missouri Pacific. See McCormick & Ray, Texas Law of Evidence, Sec. 103. In Illinois Central R. Co. v. Johnston, 205 Ala. 1, 87 So. 866, 874 (1920), cert. denied, 254 U.S. 654, 41 S.Ct. 218, 65 L.Ed. 459, err. dismd. 255 U.S. 564, 41 S.Ct. 375, 65 L.Ed. 788, a case involving a baggage-master and express agent, and a case very-similar to the case at bar, it was said:

“It cannot be doubted that some officer, agent, or employee of the railroad company was charged with the duty of employing or arranging for the employment of baggagemen for its trains — the work which plaintiff was doing at the time of the injury — and yet not a single employee of the defendant was called to testify on this subject, and no contract, rule or other documentary evidence was offered on the trial to shed light on this question. The defendant was content to rest this aspect of its case on the testimony of the two agents of the express company, who were shown to have no knowledge of the business arrangement between the express company and the railroad company, if such there was, under which the plaintiff was doing the work and performing the duties of baggagemaster for the defendant.”

We believe the evidence is ample and sufficient to show that the plaintiff was a servant of Missouri Pacific, and that his injuries were received while he was performing services for defendant, who had the right to control his activities at the time. Illinois Cent. Railroad Co. v. Johnston, supra; B. & O. R. R. Co. v. McCamey, 5 Ohio Cir.Dec. 631; 56 C.J.S. Master and Servant § 179, p. 867; Gibson v. Gillette Motor Transport, Inc., supra. And see Missouri, K. & T. Ry. Co. of Texas v. Reasor, 28 Tex.Civ.App. 302, 68 S.W. 332 (Tex.Civ.App.), error ref., a case involving a joint baggage-man and messenger. We overrule appellant’s points of error in this connection.

The trial court submitted unavoidable accident in the following language:

“Do you find from a preponderance of the evidence that the incident in question was proximately caused by the negligence of any party to it ?”
Answer: “We do.”

In Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 385, it was held that unavoidable accident should be defined as an event not proximately caused by the negligence of any party to it. In our opinion, it is unnecessary to use the language “unavoidable accident” in a special issue if the issue factually includes the definition, and if the jury makes findings on facts which make up the defense. The jury having made findings upon facts which show that the incident was proximately caused by the negligence of one of the parties to the event, we hold that submission of the above issue was proper. See Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449, 452, 140 A.L.R. 1301; 40 Tex.Jur.2d, Sec. 172, p. 718.

The appellant contends that the damages awarded by the jury were excessive. The plaintiff testified that he was in constant pain and when he moved his body it would become worse. He testified that when he returned to work following the hernia operation, he experienced shooting pains in his left leg which seemed to originate in the groin. The post-operative findings showed a small sac indirect inguinal hernia extending into the cord structures. The record showed a left inguinal hernia, both direct and indirect, which we take to mean that the hernia was pushing downward as well as outward. His testimony was clear that the accident made the basis of this suit caused severe pain and mental anguish. In recovering from the hernia operation, plaintiff was off work for a period of three months, and when he returned to work, he noticed the strain that was being placed upon his left leg, and that the work was harder for him to perform. Plaintiff quit work on August 30, 1963, and at the time of the trial, he earned $225.00 per month while working as an elementary school patrolman. The jury was entitled to take into consideration the differential in wages, which at $200.00 per month for a period of about four years could amount to more than $9,000.00. The trial court’s charge did not include an item of damages unsupported by the evidence, since some lost wages were: properly proven. Under the facts of this case and in the absence of hospital records which have not been brought forward to this court, we are not inclined to order- a remittitur. The damage finding was exclusively within the province of the jury. See Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835.

The trial court charged on physical pain and mental suffering from the time of injury to the date of trial, and the present reasonable cash value of the loss of earnings from date of injury to the date of trial. No exclusionary instruction was requested concerning the removal of the testicle and other matters apparently included in the medical records, under Rule 274, T.R.C.P. We hold the evidence sufficient to support the judgment. See Applebaum v. Michaels, 384 S.W.2d 148 (Tex.Civ.App.), ref., n. r. e.; McGraw v. Monongahela Connecting Railroad Co., 285 F.2d 731 (3rd Cir. 1960); Robinson v. Ashner, 357 S.W.2d 611, 614 (Tex.Civ.App.), Aff'd. 364 S.W.2d 223 (Tex.Sup.).

We have considered all points of error made by appellant, and we find no reversible error. Rule 434, T.R.C.P.

The judgment of the trial court is affirmed.

Concurring Opinion

TUNKS, Chief Justice.

I concur in the result reached by the majority. I am, however, of the opinion that the “safe place to work” issue as submitted by the trial court was in proper form. Arnold v. Panhandle & Santa Fe Ry. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 1441; Continental Oil Co. v. Lindley, Tex.Civ.App., 382 S.W.2d 296, ref. n. r. e.; Missouri-Pacific Railroad Co. v. Prejean, Tex.Civ.App., 307 S.W.2d 284, no writ history.

On Motion for Rehearing

BARRON, Justice.

Appellant’s motion to bring forward certain exhibits including hospital and medical records pertaining to appellant’s injuries, has been granted by the court. We have examined each exhibit and considered them in connection with the record.

We do not believe the verdict of the jury is excessive considering the evidence in its most favorable light for appellee and we decline to order a remittitur. The amount of damages is generally a troublesome and vexing question.

The motion for rehearing is respectfully overruled.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    Joseph S. HOWELL, Appellant, v. David A. WITTS et al., Appellees.
    No. 16997.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 29, 1967.
    Rehearing Denied Feb. 2, 1968.

      Chester A. Oehler, Dallas, for appellant.
    Fred T. Porter of Gardere, Porter & De-Hay, Dallas, for appellees.
   DIXON, Chief Justice.

This is an appeal by Joseph S. Howell from the granting of a summary judgment in favor of appellees, David A. Witts and Jim K. Choate, defendants in the trial court, in a legal malpractice suit. Appellees formerly represented appellant as his attorneys.

Appellant alleges that due to appellees’ negligence while acting as his attorneys he suffered damages in connection with the dissolution of his partnership with A. F. Bowden and in connection with subsequent litigation with said Bowden.

A judgment against appellant in the suit between Howell and Bowden was affirmed by this court. Howell v. Bowden, 368 S.W.2d 842 (Tex.Civ.App., Dallas 1963, writ ref’d n. r. e.). Many of the facts pertaining to that litigation are set out in our opinion in the above case.

At the time Howell v. Bowden, supra, was tried appellees in this case had ceased to represent appellant. In most of the pretrial hearings and in the trial itself and in the appeal in the Bowden case appellant was represented by the same attorney who now represents him in this case.

In his unsworn Sixth Amended Petition in this case appellant charges that appellees in representing him as his attorneys in his controversy with Bowden were negligent in the following particulars:

1. On March 18, 1960 Witts advised appellant (a) to exclude Bowden from the partnership; (b) to operate their partnership, Tex-O-Koma Sales Company, as a sole proprietorship; and (c) to change the company bank account so that Bowden could not obtain money therefrom. The above acts of negligence, according to appellant, resulted in damages assessed against appellant in his suit with Bowden of $54,491.88, plus $9,099.27 interest and court costs, plus $18,000 attorney’s fees.

2. On March 18, 1960 Witts by letter advised U. S. Relay Company, a profitable customer account, that the partnership had been dissolved, which notification was false and caused U. S. Relay Company to cancel its contract with the partnership — to appellant’s damage in the amount of $37,000.

3. Attorney Choate, without appellant’s permission, agreed to the appointment of a receiver in the suit between Howell and Bowden, thereby depriving appellant of an opportunity to sue Bowden for wrongful receivership — to appellant’s damage in the amount of $17,491.88.

Appellant’s prayer asked for judgment against Witts for $118,591.15; against Witts and Choate jointly and severally for $17,491.88; and in the alternative, against Witts for $81,591.15, and against Witts and Choate jointly and severally for $54,-491.88.

In an amended motion for summary judgment, sworn to by appellees’ attorney, ap-pellees included the record on appeal in the case of Howell v. Bowden, supra, and a copy of this court’s opinion in that appeal. It is the contention of appellees that the said record on appeal and this court’s opinion show conclusively that there are no material fact issues to be determined in the present case, therefore the trial court did not err in granting the summary judgment.

The trial court’s order sustaining the motion for summary judgment recites that the court considered the pleadings of the parties, appellees’ amended motion “with all attachments and exhibits” and that the latter included the Statement of Facts and the Transcript in the other suit. Moreover, under certificate of the clerk of this court said record was allowed to be withdrawn from our files and placed temporarily in the possession of the trial court for consideration in passing on appellees’ motion for summary judgment in this case.

The only controverting affidavits filed in appellant’s behalf in answer to appellees’ motion for summary judgment were made by appellant’s present attorney. These affidavits are mainly concerned with attacks on the sufficiency of the affidavits offered by appellees, with general charges of negligence against appellees and with an analysis of this court’s opinion in Howell v. Bowden, 368 S.W.2d 842 (Tex.Civ.App., Dallas 1963, writ ref’d n. r. e.).

We are of the opinion that the affidavits filed in appellant’s behalf by his attorney do not meet the requirements for controverting affidavits as prescribed in Rule 166-A, Sec. (e), Vernon’s Texas Rules of Civil Procedure. Nevertheless we have studied the record on appeal and our opinion in Howell v. Bowden, supra, which were attached as exhibits to the affidavit filed in appellees’ behalf by their attorney. We have concluded that said record on appeal and our opinion in that case negative the existence of fact issues in this case— especially in view of appellant’s failure specifically to controvert the facts shown by the record.

In his brief on appeal appellant lists nine points of error. Each of these points is general and indefinite in character. None of them specifically points out the exact error alleged. Appellant does not present argument in behalf of each point separately, but includes all points under one argument. See Rule 418(b), T.R.C.P.; Moore & Moore Drilling Co. v. White, 345 S.W.2d 550 (Tex.Civ.App., Dallas 1961, writ ref’d n. r. e.); Dallas Fountain and Fixture Co. v. Hill, 330 S.W.2d 648 (Tex.Civ.App., Dallas 1959, writ ref’d n. r. e.) ; Crutchfield v. Associates Inv. Co., 376 S.W.2d 957 (Tex.Civ.App., Dallas 1964, writ ref’d). However, in the light of the views presented in the argument we have decided to discuss appellant’s contentions.

APPOINTMENT OF RECEIVER.

There is no merit in appellant’s claim that attorney Choate agreed to the appointment of a receiver without appellant’s permission. As shown by the Statement of Facts and Transcript in the Bowden case after appellant’s present attorney took over representation of appellant a motion was filed to vacate the receivership. Appellant himself testified at the hearing on that motion and admitted that he had agreed to the appointment of a receiver. His testimony on cross-examination was as follows:

“Q Is it your testimony you didn’t authorize Mr. Choate to agree to the appointment of this receiver?
“A I didn’t say that either.
“Q Did you authorize him to agree to the appointment of this receiver?
“A I accepted the receivership as an alternative without waiving any legal rights.
“Q Did you tell him to go ahead and agree to the receivership ?
“A I had two alternatives—
“Q Answer my question, Mr. Howell. Did you tell him to go ahead and agree to the receivership?
“A On his legal advice, yes.”

The Statement of Facts containing the above testimony was approved in appellant’s behalf by his present attorney.

The trial court’s order overruling the motion to vacate the receivership recites that Howell appeared in person and by attorney and announced ready, that all matters of fact and of law were submitted to the court and the court, after hearing and considering the evidence and the argument of counsel, was of the opinion that the motion should be and it was overruled.

No exception was taken to the above order. To the contrary it was approved without qualification in behalf of appellant by his present attorney. The overruling of the motion was not assigned as error by appellant in his subsequent appeal in the Bow-den case.

Appellant in his brief in the present case says that the findings and holdings in the Bowden case are not res judicata against him in this case because the parties are not the same. We shall not pass on that question. But we shall and do hold that the above record includes admissions by appellant which are conclusive against him. See McCormick and Ray, “Texas Law of Evidence”, Vol. 2, Sections 1127, 1145, 1147, pages 24, 34 — 38, and authorities there cited. And this is especially true since the affidavits offered by appellant in answer to the motion for summary judgment do not attempt to controvert the above testimony and recitations.

WITTS’ ALLEGED ADVICE IN RE EXCLUSION, ETC. OF BOWDEN.

There is no merit in appellant’s claim that appellant was damaged by alleged advice from Witts (a) to exclude Bowden from the partnership; (b) to operate Tex-O-Koma Sales Company as a sole proprietorship; and (c) to change the company accounts so that Bowden could not obtain money therefrom.

The facts are established in the Bowden case that when Bowden returned on March 15, 1960 from a trip out of the city he found that the books of the company had been removed from the partnership offices, and the bank account had been changed so that Bowden no longer could draw on it, and other changes had been made hostile to Bowden’s interests. A heated argument took place on that same date. These facts are not controverted by appellant’s affidavits.

In his Sixth Amended Petition, on which he went to trial in the instant case, appellant alleges that he employed Witts as his attorney on March 18, 1960 and that it was on March 18, 1960 that Witts gave the challenged advice. But the above acts of exclusion of Bowden by Howell took place on or before March IS, 1960—three days before Witts was employed as Howell’s attorney. It is not shown exactly when the acts of exclusion took place, but they must have occurred on or before March 15, 1960, prior to Witts’ employment as attorney, for when Bowden returned on March 15, 1960 the said acts had already occurred.

CLAIM THAT WITTS FALSELY REPRESENTED TO U. S. RELAY COMPANY THAT PARTNERSHIP HAD BEEN DISSOLVED.

There is no merit in appellant’s claim that he was damaged by Witts’ alleged false representation to U. S. Relay Company that the partnership had been dissolved.

Appellant’s contention is based on his belief that “it was well known by the average legal practitioner in Dallas, Texas, * * that a partnership could only be terminated by an agreement between the parties of the partnership, by a Court Decree, or by operation of law as in the death of one of the parties, * *

The above allegation in appellant’s Sixth Amended Petition is not a correct statement of the law. When a partnership agreement sets no time limit for the duration of the relationship, as was true in this case, the partnership is terminable at will. We so held in our opinion in the appeal of the Bowden case, 368 S.W.2d 842, 846. See also 44 Tex.Jur.2d, pp. 510, 511; Art. 6132b, Sec. 31(1) (b), Vernon’s Ann.Civ.St. The record shows that at the meeting of the partners on Bowden’s return on March 15, 1960 Bowden notified Howell that the partnership would be dissolved.

Appellant went to trial in the Bowden case on his Third Amended Answer, which was filed in his behalf by his present attorney, not Witts or Choate. In this pleading appellant says that Bowden on March 9, 1960 informed U. S. Relay Company that he would terminate the business arrangement with appellant. Appellant’s answer then alleged “which the Plaintiff herein accomplished by going to the office of Tex-O-Koma Sales Company in Grand Prairie, Texas, on March 15, 1960, and told Defendant herein that the partnership was dissolved, which act on the part of the Plaintiff herein resulted in a termination of the partnership, if any, as of March 15, 1960.” Furthermore in appellant’s brief on appeal in Howell v. Bowden he made this allegation : “If there was a partnership, the partnership was dissolved on or before March 15, 1960. Defendant’s lawyer, by letter dated March 18, 1960, notified Plaintiff that the partnership had been dissolved and an accounting would be tendered. * * * the Defendant was certainly entitled to the money collected after the receiver took over as a result of the Defendant’s efforts subsequent to the date of dissolution, March 15, 1960, * * The brief containing the above allegation was not prepared or filed by Witts or Choate. It was prepared and filed by appellant’s present attorney.

Thus it is apparent from Howell’s own testimony and pleadings in the Bowden case that he considered the partnership dissolved as of March 15, 1960. In that suit he further sought to have the partnership assets divided equally as of March 15, 1960 and to have the proceeds of the business received after that date turned over to him alone. In the face of these undisputed and uncontroverted facts Howell cannot now be heard to say that his attorney falsely represented to the U. S. Relay Company that the partnership had been dissolved as of March 15, 1960.

We are of the opinion that the court correctly sustained appellees’ motion for summary judgment.

Appellant’s points of error are overruled.

The judgment is affirmed.

       In pointing out that in most of the proceedings in Howell v. Bowden, Witts and Choate did not represent appellant, but that appellant’s present attorney did rep resent Mm, we do not express or imply any criticism of appellant’s present attorney.


author: BELL, Chief Justice.

text:
    Grace M. POWER, a feme sole, Appellant, v. Thelma LANDRAM et al., Appellees.
    No. 15212.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 1, 1968.
    Crane & Keenan, K. D. Keenan, Houston, for appellant.
    Liddell, Dawson, Sapp & Zivley, Marion Sanford, Jr., N. Wyatt Collier, Houston, for appellees.
   BELL, Chief Justice.

There is no statement of facts in this case. What we say comes from the pleadings of the parties. However, as to what the facts are that we deem controlling on the disposition to be made of this appeal we think is pretty well established by the pleadings of the parties.

John A. Power left a will in which he named his wife, Mary Elizabeth Power, independent executrix. He died July 26, 1955. On August 2, 1955 his will was offered for probate in the Probate Court of Harris County in Cause No. 56,792. It was thereafter admitted to probate and Mary Elizabeth Power was issued letters testamentary and duly qualified as independent executrix.

In the will of John A. Power it was provided :

“that my beloved wife, MARY ELIZABETH POWER, shall with the rights and authority below given, have all the estate of every description — real, personal or mixed — which I may own, — to be used, occupied, enjoyed, conveyed and expended during her life, as she may desire, and that upon her death, any of such estate then remaining, shall be divided among the persons following, share and share alike, to-wit:
Thelma Landrwm
John Gerald Power
Katherine Power Randle
that said named persons being the children of said JOHN A. POWER and MARY ELIZABETH POWER; and in case any of said children should die before the death of my beloved wife, MARY ELIZABETH POWER, then the share which would have come to such child shall pass under the laws of descent and distribution to the heirs of such deceased child.”

John Gerald Power, the son of John A. Power, died on February 10, 1957. Thereafter on September 6, 1962, Mary Elizabeth Power died, leaving a will which was admitted to probate in the Probate Court of Harris County in Cause No. 78,217. In her will she named Thelma Landram and Katherine Power Randle as independent executrices of her estate. They received letters testamentary upon duly qualifying as executrices.

The appellant here, Grace Power, was the surviving widow of John Gerald Power. She filed the suit out of which this appeal grows in the Probate Court of Harris County in Cause No. 56,792, asserting that she was an heir of John Gerald Power and that no portion of his estate had been delivered to her. She filed the suit against Thelma Landram, Individually and as Executrix of the Estate of Mary Elizabeth Power, and Katherine Power Randle, Individually and as Executrix of the Estate of Mary Elizabeth Power. The husband of each defendant was joined in the suit. The allegations of the petition set out the provision of the will of John A. Power that we have quoted above and it was asserted by Grace Power that she was an heir of John Gerald Power and by reason of the provision of said will was entitled to her share of the estate. John Gerald Power also left surviving him three children. The prayer was that the defendants be required to give an accounting in the estate of John A. Power and that the court make a determination of heirship and that her interest in the estate of John A. Power be determined by the court.

By separate but identical answers, the defendants filed in the Probate Court a plea in abatement setting up that this suit was brought by Grace Power as the surviving wife of John Gerald Power and that there was a want of necessary and indispensable parties, i. e., the surviving children of John Gerald Power. The answers in addition asserted that the term “heirs” used in the will of John A. Power was used only in the sense that it denoted descendants of the children of John A. Power and that Grace Power was therefore not an heir at law of John Gerald Power. The answers also asserted that fee simple title was vested in Mary Elizabeth Power.

On the 19th of April, 1966, the judge of the Probate Court entered an order sustaining the plea in abatement, the order reading as follows:

“On the 17th day of March, 1966, came on for hearing the Respondents’ Plea in Abatement for want of necessary parties, and Plaintiff and Respondents both appearing by their respective attorneys and the Court having considered the pleadings and argument of counsel, finds that it does not have the power to grant all the relief asked for. Therefore, it is
“ORDERED, ADJUDGED and DECREED that Respondents’ Plea in Abatement be sustained.

It will be noticed that the order in no way-makes a final disposition of the proceeding by a dismissal for want of necessary parties. The appellant here then gave notice of appeal from this order sustaining the plea in abatement and her appeal was timely filed in the 152nd District Court of Harris County.

In the District Court appellant filed an amended pleading which in substance contained the same allegations as her petition filed in the Probate Court, but the children of John Gerald Power, Deceased, were brought in as parties defendant. The ap-pellees here filed their answer in the District Court which contained a motion to dismiss the appeal from the Probate Court on the ground that there was no ap-pealable order because only a plea in abatement had been sustained which had asserted the want of necessary and indispensable parties. This plea was overruled by the court.

The appellees then filed a motion to dismiss the appeal for want of jurisdiction, their position being that the Probate Court did not have jurisdiction of the proceeding because the appellees were not legal representatives of the estate of John A. Power, Deceased, and also on the ground that appellant’s proceeding commenced in the trial court was nothing more than a suit to construe the will of John A. Power and only a district court had jurisdiction to construe a will. The position of appellant was that she was entitled to file the proceeding under the provisions of Section 220, Probate Code of Texas, V.A.T.S., and also that this was a proceeding to declare heirship. The District Court sustained the plea to the jurisdiction, thereby holding in effect that the Probate Court had no jurisdiction over the proceeding and that the District Court on appeal, therefore, had no jurisdiction.

We are of the view that it appears on the face of the record that the order of the Probate Court sustaining the plea in abatement for want of necessary parties was not a final order that could be appealed to the district court. The District Court should have sustained a plea to dismiss the appeal. It being a fundamental error apparent on the face of the record, we take notice of the interlocutory nature of the Probate Court’s order sustaining the plea in abatement.

The position of appellant is that the order sustaining the plea in abatement was a final order because it recited that it did not “have the power to grant all of the relief asked for.” Appellant says that this shows that the court was in effect refusing to hear the case on its merits. We do not so construe the order. The plea in abatement itself was nothing more than an assertion that the court should not go forward with the case until the children of John Gerald Power were made parties. The order itself adjudges merely that the respondents’ (appellees’) plea in abatement be sustained. There was no dismissal of the case nor was there any purported final disposition of the case at all. An order sustaining a plea in abatement is purely interlocutory and not appealable. The party whose suit is abated for the want of necessary parties is entitled to amend and make the absent persons parties to the suit. If the plaintiff refuses to make them parties, then the court must, in order to make an appealable judgment enter an order dismissing the case. The recital in the order stating that the court does not have power to grant all of the relief asked for, to our mind, means nothing more than that the court cannot grant an order declaring the appellant to be an heir and determining her portion of the estate of John A. Power without the presence of all persons who are entitled to share in the estate of John A. Power. The language used is nothing more than the test for determining who are necessary parties.

In the light of the disposition we make of this appeal, we probably should note the contentions made by appellant as to why the Probate Court had jurisdiction of her proceeding.

She contends that this is a suit to declare heirship. Of course, the Probate Court is vested with jurisdiction to declare who are the heirs of a deceased person, hut the effect of appellant’s pleading is not to truly present a petition to declare heir-ship but is one for the construction of a will. The allegations are in effect that the term “heirs” as used in the will was intended by the testator to include a surviving wife. Too, another issue involved is whether or not under the will fee simple title was vested in Mary Elizabeth Power. The exclusive jurisdiction to construe a will is in the district court. Wills, 61 Tex.Jur.2d, Sec. 207; Benson v. Greenville National Exchange Bank, Tex.Civ.App., 228 S.W.2d 272; Benson v. Greenville National Exchange Bank, Tex.Civ.App., 253 S.W.2d 918, error ref., n. r. e.

Under Section 220, Par. (a), of the Probate Code, the appellant contends that since Mary Elizabeth Power, who was independent executrix of the will of John A. Power, is deceased, this section allows those persons legally entitled to receive the estate of John A. Power to sue in the Probate Court to require the legal representatives of the deceased executrix to deliver to her her portion of the John A. Power estate. We are unable to tell from the allegations in the pleadings whether Mary Elizabeth Power completed administration of the estate except for the delivery of the assets of the estate of John A. Power, Deceased. If there is necessity for further administration upon the estate of John A. Power, then under said Art. 220, a representative of the estate of John A. Power, Deceased, should be appointed by the judge of the Probate Court. If there is no necessity for further administration, then it seems to us that appellant would file suit in the District Court asking for the construction of the will of John A. Power, Deceased, and if she be held to be an heir within the meaning of the language used by John A. Power in his will, the District Court upon proper pleading in the same suit could order distribution of the estate of John A. Power, Deceased, and if any of the assets had been converted by any of the parties to such suit, then judgment for its value could be given in favor of appellant here. Griggs v. Brewster, 122 Tex. 588, 62 S.W.2d 980.

The District Court rendered judgment dismissing the cause of action for want of jurisdiction in that court because the proceeding was an appeal from the Probate Court when the Probate Court had no jurisdiction over the cause of action. We feel jurisdiction in the District Court over the appeal never attached because there was no appealable order. We reverse the judgment of the District Court dismissing the cause of action and direct such Court to enter its judgment dismissing the appeal from the Probate Court because no appeal-able order existed.


author: CLAYTON, Justice.

text:
    NATIONAL SURETY CORPORATION, Appellant, v. The FIRST NATIONAL BANK OF MIDLAND, Texas, Appellee.
    No. 5914.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 31, 1968.
    Rehearing Denied Feb. 14, 1968.

      Shafer, Gilliland, Davis, Bunton & Mc-Collum and James M. O’Leary, Odessa, for appellant.
    Turpin, Smith, Dyer, Hardie & Harmon and William C. Morrow, Midland, for ap-pellee.
   OPINION

CLAYTON, Justice.

Appellant’s motion for rehearing in this cause is hereby granted and the original opinion in this cause handed down on November 15, 1967 is hereby withdrawn, and the following opinion is hereby substituted therefor.

This is an appeal from a summary judgment in a suit filed by The First National Bank of Midland, Texas, appellee, against National Surety Corporation, appellant. The suit was for recovery of $1,500.00 attorney’s fees paid by appellee to defend against a suit brought against it and others by one Mrs. Oatie Beavers, alleging that she was the owner and holder of six first mortgage bonds of The Crestview Baptist Church of Midland, Texas; that she had made demand upon appellee and the church for payment of the matured and accrued interest coupons on the bonds and was refused by appellee, and paying for judgment for such matured interest, plus damages in the principal amount of said bonds, and 10% additional as attorney’s fees. In that suit the First National Bank of Midland filed a general denial and alleged that the bonds involved were in fact counterfeit and the signatures thereon were forgeries. The Bank subsequently filed its motion for summary judgment which was granted, and the Bank was dismissed from the suit, but paid $1,500.00 as a reasonable attorney’s fee to the law firm which represented it. In the present suit it alleged that the appellant National Surety Corporation, which had issued to the Bank a Bankers Blanket Bond in which it had agreed to indemnify and hold harmless said bank from and against any losses sustained and discovered as set forth in said bond, had, although after demands, refused to pay or indemnify the Bank for the said attorney’s fees. It was stipulated that appellee First National Bank had paid nothing to Mrs. Oatie Beavers as a result of her suit, but that ap-pellee had paid the $1,500.00 attorney’s fees for its defense in said cause of action.

In the present suit both appellant and appellee filed motions for summary judgment. The court sustained the motion of appellee and granted it a judgment against appellant for the $1,500.00 plus interest and costs. The basis of such judgment is not shown, but no mention was made of any forgery or counterfeiting of said bonds. Appellant National Surety Corporation filed this appeal in which, as a sole point, it charged error on the part of the court in sustaining appellee’s motion for summary judgment and granting it judgment in the amount of the attorney’s fees. Appellant relies on the wording of the Bankers Blanket Bond under the heading:

“COURT COSTS AND ATTORNEYS’ FEES
“(Applicable to all Insuring Clauses now or hereafter forming a part of this Bond)”,

under which heading it is provided:

“The Underwriter will indemnify the Insured against court costs and reasonable attorneys’ fees incurred and paid by the Insured in defending any suit or legal proceeding brought against the Insured to enforce the Insured’s liability or alleged liability on account of any loss, claim or damage which, if established against the Insured, would constitute a valid and collectible loss sustained by the Insured, under the terms of this bond. Such indemnity shall be in addition to the amount of this bond. In consideration of such indemnity, the Insured shall promptly give notice to the Underwriter of the institution of any such suit or legal proceeding; at the request of the Underwriter shall furnish it with copies of all pleadings and other papers therein ; and at the Underwriter’s election shall permit the Underwriter to conduct the defense of such suit or legal proceeding, in the Insured’s name, through attorneys of the Underwriter’s own selection. In the event of such election by the Underwriter, the Insured shall give all reasonable information and assistance, other than pecuniary, which the Underwriter shall deem necessary to the proper defense of such suit or legal proceeding.”

Appellant then contends:

“ * * * Under the foregoing provisions, as well as the other provisions in the bonds, which measure the appellant’s obligations, it is only where the liability of the insured is established in fact that the bonding company is obligated for the insured’s attorney’s fees. Where it is not established that the insured actually sustained a ‘valid and collectible loss’ under the terms of the bond, appellant is not liable.”

Contending that the bond is for indemnity against loss only, appellant then quotes from the preamble of the said bond:

“* * * NATIONAL SURETY CORPORATION * * * agrees to indemnify and hold harmless The First National Bank, Midland, Texas * * * from and against any losses sustained and discovered as hereinafter set forth.” (Emphasis added).

Appellant cites us to Continental Casualty Co. v. First Nat. Bank, 116 F.2d 885, 135 A.L.R. 1141 (5th Cir., 1941), but we deem the obligation of the surety company under its bond in the cited case to the different from that in the present case. Also cited are: Fidelity & Deposit Co. of Maryland v. Reed, 150 S.W.2d 836 (Tex.Civ.App., 1941); Home Indemnity Company v. Gonzalez, 383 S.W.2d 857 (Tex.Civ.App., 1964); (n. r. e.); 9 Appleman Insurance Law and Practice, sec. 5711, p. 586. 64 Tex.Jur.2d 445, Words and Phrases, defines “Indemnity against loss” as follows:

“Indemnity against loss is distinguished from indemnity against liability in that an undertaking against loss or damage amounts to a guaranty of reimbursement on a payment by the indemnitee, whereas an undertaking against liability signifies a specific duty of protecting the indemnitee from a loss or the cause of it. 30 Tex.Jur.2d Indemnity § 11.”

Appellant then quotes and relies upon insuring clause (E) of the Bankers Blanket Bond, as follows:

“(E) Any loss through the Insured’s having, in good faith, and in the course of business * * * acquired, * * * received, or * * * delivered, or given any value, extended any credit or assumed any liability, on the faith of, or otherwise acted upon any securities * * * or other written instruments which proved to have [been] counterfeited or forged * * * ”

Appellant contends that clause (E) covers only a loss through the insured’s having acted upon securities which prove to have been forged or counterfeited. Neither party to this lawsuit enlightens this court as to the basis upon which the court granted ap-pellee’s motion for summary judgment in the suit brought against it by Mrs. Beavers. Appellee’s answer in that suit alleges:

“Further by way of answer, First National Bank of Midland, Texas, states that the bonds sued upon by Plaintiff are in fact counterfeit bonds, and that the signatures contained thereon are forgeries, and that Plaintiff is not entitled to recover.”

But no such allegation is contained in ap-pellee’s motion for summary judgment in the Beavers case. Mrs. Beavers had charged the appellee with negligence in miscounting the bonds in validating or signing same, and negligently permitted excess bonds to be issued and negligently permitted partly validated bonds to come into the possession of or accessible to a party or parties who should not have had them; to which appellee replied in its motion for summary judgment:

“It is undisputed as to the methods and procedures followed in the stamping and signing of the bonds at The First National Bank of Midland, Texas. There is no negligence shown and an insufficient allegation of negligence in Plaintiff’s petition in that Plaintiff’s petition fails to state in what respect The First National Bank of Midland, Texas, acted negligently.”

It is most difficult to establish from this record just what reasoning the court employed in granting the summary judgment in the Beavers case, but we feel that to be unnecessary to a decision in the present case, since we feel that there is language in the Bankers Blanket Bond which establishes appellant’s liability in the case now before us.

Appellee presents two Counter-Points. In the first it is claimed that the court did not err in granting a summary judgment because the blanket bond issued by appellant did not require that a loss be incurred by appellee before a recovery could be had of attorney’s fees. The second counterpoint is as follows:

“THE PRIOR SUIT OF . OATIE BEAVERS AGAINST THE FIRST NATIONAL BANK OF MIDLAND, TEXAS, ALLEGED A CAUSE OF ACTION WHICH, IF ESTABLISHED AGAINST THE INSURED, THE FIRST NATIONAL BANK OF MIDLAND, WOULD HAVE CONSTITUTED A VALID AND COLLECTIBLE LOSS SUSTAINED BY THE INSURED UNDER THE TERMS OF THE BANKERS BLANKET BONDS ISSUED BY THE APPELLANT.”

The “Court Costs and Attorneys’ Fees” provision of the Blanket Bond has heretofore been quoted in this opinion. Attention is called to the language:

“The Underwriter will indemnify the Insured against court costs and reasonable attorneys’ fees incurred and paid by the Insured in defending any suit or legal proceeding brought against the Insured to enforce the Insured’s liability or alleged liability on account of any loss, claim or damage which, if established against the Insured, would constitute a valid and collectible loss sustained by the Insured under the terms of this bond. Such indemnity shall be in addition to the amount of this bond.” (Emphasis supplied).

This brings us to a determination of whether the liability of the appellee alleged by Mrs. Beavers would, if established against the appellee (as the Insured) constitute a valid and collectible loss sustained by ap-pellee under the terms of the bond. The word “property” is defined in the bond as meaning:

“DEFINITION OF PROPERTY
“Wherever used in this bond Property shall be deemed to mean money,' currency, coin, bank notes, Federal Reserve notes, postage and revenue stamps, U. S. Savings Stamps, bullion, precious metals of all kinds and in any form and articles made therefrom, jewelry, watches, necklaces, bracelets, gems, precious and semi-precious stones, bonds, securities, evidences of debts, debentures, scrip, certificates, receipts, warrants, rights, transfers, coupons, drafts, bills of exchange, acceptances, notes, checks, withdrawal orders, money orders, travelers’ letters of credit, bills of lading, abstracts of title, insurance policies, deeds, mortgages upon real estate and/or upon chattels and upon interests therein, and assignments of such policies, mortgages and instruments, and other valuable papers and documents, and all other instruments similar to or in the nature of the foregoing, in which the Insured has an interest or which are held by the Insured for any purpose or in any capacity and whether so held gratuitously or not and whether or not the Insured is liable therefor, and chattels which are not hereinbefore enumerated and for which the Insured is legally liable.” (Emphasis supplied).

Had Mrs. Beavers established against ap-pellee her allegations that appellee, as one of the defendants in her suit, did:

“⅜ * * negligently mis-count said bonds in validating or signing same, and did negligently permit excess bonds to be issued, and did negligently allow partly validated bonds to come into the possession of a party who should not have had their possession, and did negligently permit said bonds to be accessible to parties other than the officers of said bank, or the officers of said church entitled to possession of same, and did, upon receipt of said bonds from R. B. Cousins, Defendant, negligently fail to check or count the number of same and to prevent excess bonds from being distributed; that each act or omission herein alleged to be negligence was a proximate cause of the acceptance by Plaintiff, an innocent victim, of the bonds in question and the consequent damages to her”,

it would have constituted a valid and collectible loss sustained by Insured under the terms of the bond and would place the coverage for attorneys’ fees directly within the provisions for attorney’s fees incurred.

There is no allegation or proof by the appellant that the appellee did not comply with the requirements included in the “Court Costs and Attorneys’ Fees” clause, and apparently the appellant made no attempt to exercise its option to defend the appellee in the suit filed against it by Mrs. Beavers in which case it would be liable under the terms of this provision for its attorney’s fees in defending the suit. This option apparently not having been exercised by appellant, the appellee then defended the suit and received a summary judgment therein, thus saving the appellant from any loss under the alleged cause of action and, therefore, should be reimbursed the attorney’s fees expended in this undertaking.

We therefore overrule appellant’s sole point of error and affirm the judgment of the trial court in rendering judgment for attorney’s fees, interest and costs against appellant.


author: MASSEY, Chief Justice.

text:
    Merl F. GOLD, Appellant, v. Henry W. SIMON, Appellee.
    No. 16867.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 12, 1968.
    Rehearing Denied Feb. 16, 1968.

      Davis, Callaway & Marshall, and Clyde M. Marshall, Jr., Fort Worth, for appellant.
    Sullivant, Meurer & Harris, Gainesville, Simon & Simon, and Henry W. Simon, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

This appeal is from an order sustaining the plea of privilege of the appellee, Henry W. Simon, one of several defendants.

In Cooke County the plaintiff, Merl F. Gold, appellant herein, sued Simon, Jack N. Greenman (both residents of Tarrant County), the Bar V Company (residents of Wichita County), T. I. Sanders, Walter W. Stein, Jr., and Felderhoff Brothers Drilling Company (all residents of Cooke County) in the District Court of Cooke County. The appellant will be referred to as plaintiff and the appellee as Simon.

Basically the plaintiff’s cause of action is a statutory action in trespass to try title (though plaintiff also specially pleaded his title) to a claimed undivided one-fourth interest in three oil and gas leasehold estates, and alternatively for foreclosure of an asserted mechanic’s lien and for recovery of damages against the defendants Simon and Greenman for breach of alleged oral contract to convey. All three of the leasehold estates are situated in Cooke County, Texas. Prior to conveyances to other defendants in December, 1966, the record title to two of the leases was in defendant, Jack N. Greenman, and the third, referred to as the Zimmerer lease, was in Greenman and Simon. Plaintiff’s cause of action as against the defendants resident in the county of the suit was different. Note thereof will be taken at appropriate places in this opinion.

Under the terms of the alleged verbal agreement between Greenman and Gold, the latter entered into reworking and drilling operations upon all three leases over a period of months, expending his time, skill and labor upon Greenman’s promise that plaintiff was vested with an undivided one-fourth interest in each of the three leases; and that Greenman as to two leases and Greenman and Simon as to the third lease would advance development expenses and be entitled to recover such advances as well as investment outlay out of the proceeds of the sale of oil or from the sale of the leases before distribution to Gold of his one-fourth interest. It is asserted that Simon was informed by Greenman as to the above agreement and consented thereto.

The plaintiff received no assignment, deed or conveyance as to the claimed interest and there was no memorandum in writing to reflect his ownership of such interest or as to the agreement relating thereto. His title, if any, rested solely in parol.

Plaintiff alleged that Greenman and Simon were partners in the Zimmerer lease and that they had sold their entire interests in such leases to the other defendants prior to institution of his suit and that the titles of the latter were inferior to his. That sale to the other defendants was done secretly and as result of a conspiracy between all defendants to deprive him of his interest, all of which constituted a breach by reason of which plaintiff had been damaged.

Simon and defendant Jack N. Green-man filed their separate pleas of privilege to be sued in Tarrant County. Simon asserted that the allegations in plaintiff’s petition seeking recovery of an interest in lands in Cooke County and foreclosure of a lien on said lands were not made in good faith but were fraudulently made for the purpose of conferring venue in Cooke County. All exceptions to exclusive venue in the county of appellee’s residence were denied by Simon.

Under the cases it appears that in a plea of privilege case a defendant who affirmatively alleges fraud on the jurisdiction (for venue purposes) raises additional issues upon which he has the burden of proof and in support of which he is entitled to introduce evidence. 59 Tex.Jur. 2d, p. 585, “Venue”, Sec. 147, “(Requisites of plea)—Alleging venue fraudulently laid”; McDonald’s Texas Civil Practice 376, 459; Texan Development Co. v. Hodges, 237 S.W.2d 436 (Amarillo, Tex.Civ.App.1951, no writ history).

Conceding, in such a case, that the plaintiff’s pleading and/or evidence establishes a prima facie case entitling him to an order overruling the defendant’s plea of privilege the defendant is entitled to introduce proof that the plaintiff’s cause of action does not fall within those exceptions to Vernon’s Ann.Tex.Civ.St. art. 1995, “Venue,” upon which plaintiff relies, such as by producing refuting evidence upon matters which ordinarily would be settled as a matter of law through determination made by reference to the plaintiff’s petition. This is true even though as an incident to such proof it be established that plaintiff has no maintainable action at all. Should the defendant’s evidence legally establish such the order of the trial court could only be one which sustains the plea and removes the cause of action according to the defendant’s prayer.

Under his pleadings Simon was afforded the opportunity to, and did, introduce evidence to the effect that the action against him was not (1) for the recovery of an interest in land, (2) for the foreclosure of a mortgage or other lien, and (3) that he is not a proper party to the plaintiff’s cause of action, if any, possessed against defendants who were resident in the county of the suit. Once the defendant’s pleading raises the issue of fact as to the matters above enumerated and produces evidence of probative force and effect in support thereof, a determination may be made by reference to the evidence rather than by reference to the plaintiff’s petition. The same rule is applicable to Exception 29a of Art. 1995.

The evidence upon which Simon relied was almost all adduced in cross-examination of the plaintiff. We believe the trial trial court was entitled to conclude that as against Simon the plaintiff’s cause of action was one founded in contract, either for specific performance or for damages for breach; that as founded in contract the agreement between Simon and plaintiff was express and to the effect that in consideration of services rendered by the latter on the Zimmerer lease — if and in the event the same proved profitable and Simon obtained a return on his investment, theretofore and thereafter made in the purchase and development of said lease, which not only made him whole but in addition resulted in a profit — plaintiff would then be entitled to, and automatically have, a one-quarter (¼⅛) interest in the leasehold estate of Simon as of and from the time Simon was made whole as applied to his total investment.

There was evidence introduced by the plaintiff in the establishment of the fact that defendants Stein, Sanders and Felder-hoff Brothers Drilling- Company were resident in the county of the suit and that the Zimmerer lease was located in the county of the suit. There was no evidence which established the residence of the Bar V Company. The extent of plaintiff’s evidence to show the existence of a bona fide cause of action against the residents of the county of suit under his allegations of conspiracy and concealment of the sale transaction, and notice and knowledge of plaintiff’s claim, was that when they decided to acquire the Zimmerer lease from Simon and Greenman they had seen plaintiff on the lease daily working it. Their testimony, however, established that said defendants believed he was merely the “pumper” on the lease, record title to which was in Simon and Greenman. The evidence reflects that plaintiff worked the lease prior to the agreement alleged by him and upon which he declared by his suit and there was nothing to indicate a change in his status. Furthermore, such evidence was indicative of the fact that the Cooke County defendants held no direct communication with the owners, Simon and Greenman, but enlisted the services of the Bar V Company to acquire the lease and then transfer it to them because they owned adjoining lease property and desired to conceal their interest in the hope of acquiring the property at a reduced price. There was no evidence of concealment or conspiracy as between the Cooke County defendants and other defendants.

Any cause of action of plaintiff as against the resident defendants, except it be by and through and derivative of their cause of action against Simon and Green-man, would be grounded in tort. From the evidence the court was entitled to conclude that plaintiff had no independent bona fide cause of action against them and that there was none existent as derivative.

In plaintiff’s controverting affidavit he asserted his right to retain venue as to Simon under four of the exceptions to the general venue rule of Art. 1995, namely: Exception 14, “Lands”; Exception 12, “Lien”; Exception 4, “Defendants in different counties”; and Exception 29a, “Two or more defendants”.

Under Exception 14 of Art. 1995 the venue facts are: (1) that the action is one for the recovery of an interest in land, to be determined by reference to the petition; and (2) that the land or a part thereof is situated in the county of suit. 1 McDonald’s Texas Civil Practice, p. 488, “Venue”, Sec. 4.22.2, “ — (I) Nature of Plaintiff’s Claim”.

Under Exception 12 of Art. 1995 the venue facts are: (1) the nature of the suit is for foreclosure of a mortgage or other lien, to be determined by reference to the petition; and (2) the location of the property as being in the county of suit. 1 McDonald’s Texas Civil Practice, pp. 481, 482, “Venue”, Sec. 4.20, “Art. 1995(12). Foreclosure of Liens.”

Under Exception 4 of Art. 1995 the venue facts are: (1) one defendant resides in the county of suit; (2) the plaintiff has a bona fide cause of action against such defendant; and (3) the non resident defendant asserting his privilege to have the suit as to him removed is at least a proper party to the cause of action against the resident defendant, to be determined by reference to the petition. 1 McDonald’s Texas Civil Practice, p. 434, “Venue”, Sec. 4.10.2, “ — (II) Venue Facts.”

Exception 29a is applicable only when an asserted cause of action is existent as against a non resident defendant other than that one asserting nis privilege to have the suit as to him removed, and where he who asserts such privilege is a necessary party (i. e. one whose interest in the subject matter of the cause of action against the other non resident defendant is such that it will necessarily be affected by any judgment rendered), — and where the venue in the county of the suit is proper under some other exception to Art. 1995 as against the other non resident. The plaintiff’s controverting affidavit must allege, and plaintiff’s independent evidence must establish, all facts which would entitle him to retain venue in the county of suit as against the other non resident defendant except those which are taken as admitted under the pleadings or which are to be considered as established as a matter of law by the allegations of the petition,— plus (determinable by reference to facts alleged in. the petition) the fact that the complainant non resident defendant is a necessary party to the cause of action asserted against the other. 1 McDonald’s Texas Civil Practice, p. 544, “Venue”, Sec. 4.36, “Art. 1995 (29a). Necessary Parties.”

That the other non resident defendant might have waived his right to question the venue of the action as to him will not deprive a protesting defendant of his right. Ladner v. Reliance Corp,, 156 Tex. 158, 293 S.W.2d 758 (1956). It follows, necessarily, that though the other non resident defendant might have questioned the venue of the action as to him in the trial court and have lost in such court but did not appeal, that the protesting defendant would not by reason thereof be deprived of his right.

There are cases that hold Exception 29a to be applicable only in connection with some other sustained (or sustainable as a matter of law) exception to Art. 1995. Hill v. Melton, 311 S.W.2d 496 (Dallas, Tex.Civ.App. 1958, dism.), noted in 12 S.W.L.J. 505 (1958).

For venue purposes, as applied to the express contract the court was entitled to and did presumably find, the only causes of action that theoretically possible as against Simon were: a suit to enforce specific performance of an oral contract to convey real estate and/or damages for the breach of such a contract,—or a suit to establish a joint venture or joint enterprise. In neither event would it be proper to hold that venue should be retained in the county of plaintiff’s suit under the exception stated under subdivision 14 of Art. 1995.

In this connection a case in point is Milburn v. Minette, 278 S.W.2d 269 (El Paso, Tex.Civ.App. 1955, no writ hist.), though in that case there was no necessity to advert to evidence, the true situation being revealed by the pleadings. There, as here, the plaintiff alleged a trespass to try title suit, but later alleged an oral agreement between the plaintiff and defendant by which the plaintiff was to receive a fractional interest in an oil and gas lease after the operators had been repaid for development costs. The entire contract alleged by plaintiff was oral. The court, in affirming the trial court’s judgment sustaining the defendant’s plea of privilege to be sued in the county of his residence, held that the character of the lawsuit as a whole governed the matter of venue; and the inclusion of a trespass to try title plea did not change the character of the lawsuit ; and that it was obvious that the plaintiff relied upon the existence of an oral contract ; and that his interest in the lease depended upon proving its successful culmination. The holding was that venue did not lie under Exception 14.

We next examine the situation in view of Exception 12 to Art. 1995. By pleadings in the alternative the plaintiff asserted a cause of action for foreclosure of lien filed against the property because of Simon’s default in payment of the agreed consideration for work performed on the mineral leasehold estate.

The evidence unmistakably reveals that plaintiff at all times claimed an express contract, in that he bartered his services for an interest in the lease. Though such an express contract might or not be legally enforceable, it can form no basis for implying a contract. Teague v. Edwards, 159 Tex. 94, 315 S.W.2d 950 (1958).

It is upon V.A.T.S. Title 90, “Liens”, Ch. 3, “Oil and Mineral Property”, Art. 5473, “Contractor’s lien”, that the plaintiff relies in his assertion that his suit in the alternative is for the foreclosure of a lien. The consideration contemplated to be deliverable by a defendant in such a case is generally money or its equivalent. Indeed, Art. 5478 (under the same Chapter), “Extent of liability of owner”, provides that nothing in the chapter should be construed to fix a greater liability against the owner of the land or leasehold interest therein than the price or sum stipulated to be paid in the contract under which such material is furnished or labor performed. It follows that it would be because of the failure of such a defendant to deliver consideration which he was obliged under the contract to deliver that a plaintiff would be entitled to continue prosecution of a suit for foreclosure of a lien.

But the instant case, viewed as one wherein the plaintiff is bound to proceed under a theory of express contract, could not be a case where the consideration to be delivered over to him would be ascertainable as to amount or value, with foreclosure and sale ordered in the event of failure of satisfaction by the defendant Simon by delivery of the consideration found to have been due from him as by satisfaction of indebtedness. Demonstrated is the probability of artifice and design in seeking to establish that the suit is for foreclosure of a lien under a statute which did not contemplate nor provide for applicability to a factual situation such as that before us.

In any event our holding is that the trial court, in view of its theoretical fact findings and conclusions, properly held that plaintiff held no valid lien against the property and hence the exception (Art. 1995, subdivision 12) was without application so as to entitle plaintiff to hold venue in the county of suit. To hold otherwise would be to make a suit to recover an interest in land out of one which all the authorities hold could not constitute such — through the device of asserting that the “price” to be paid in order to avoid attachment of a lien securing such payment was the conveyance of that very interest in land.

We next examine the situation in view of Exception 4 to Art. 1995. Upon this the trial court was entitled to and is presumed to have decided that the plaintiff failed to make proof obligatory upon him to establish the applicability of the exception. Though there was evidence that one or more defendants were resident in the county of the suit he failed to prove a prima facie cause of action against him or them. If in such conclusion we err, then — in view of Simon’s pleading — at least such could not be said to have been established as a matter of law.

Furthermore, we note again the affirmative defense theory plead in the case, and the evidence which sufficed to support the trial court’s conclusion that the only basis of plaintiff’s suit as against Simon lay in an express oral contract allegedly made between plaintiff and Simon, by which the latter agreed to convey a one-fourth interest in the lease property. In this connection there would be no joint or closely related cause of action against Simon, as the non resident defendant, and against any of the resident defendants. No resident defendant had any occasion to be interested nor have any knowledge of any such agreement. The nature of the cause of action against the resident defendants could only have been one in tort, and that was not proved as against them as a matter of law.

Finally we examine the situation in view of Exception 29a to Art. 1995. It is not to be presumed that the retention of venue as to the defendant Greenman was necessarily grounded in the transaction relative to the Zimmerer lease in which Simon owned an interest. However, as applied to the Zim-merer lease the very things held hereinabove would apply to Greenman as well as Simon, i. e., that the right to hold venue as to Greenman did not exist under exceptions 14, 12, or 4. As noted hereinabove, Exception 29a would be applicable only in such an instance. It is, therefore, without effect to retain venue as to Simon.

Judgment is affirmed.


author: NORTHCUTT, Justice.

text:
    ARGONAUT SOUTHWEST INSURANCE COMPANY, Appellant, v. J. E. POLLAN, Appellee.
    No. 7776.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 29, 1968.
    Morehead, Sharp, Boyd & Tisdel and Robert L. Gibbins, Jr., Plainview, for appellant.
    Stovall & Stovall and Frank Stovall, Plainview, for appellee.
   NORTHCUTT, Justice.

This is a workman’s compensation suit brought by J. E. Pollan, hereinafter referred to as appellee, against Argonaut Southwest Insurance Company, hereinafter referred to as appellant, for workman’s compensation benefits. Based upon the verdict of the jury in answer to special issues, the trial court entered judgment for benefits in the sum of $6,457.06 in a lump sum in favor of appellee and against appellant. From that judgment appellant perfected this appeal.

Appellee was injured on April 22, 1965, and on May 17, 1965, filed his notice of injury and compensation with the Industrial Accident Board. The original notice for compensation was for an injured ankle and toe, bruises and skins all over legs. On February 17, 1966, a letter was written to the board seeking to amend the notice of injury and claim for compensation. There was written on the original the following: “See attys. ltr. of 2-17-66 amending parts of body injured to ankle and toe of left foot and injuries to back, low back and body generally”. Then appellee filed this suit on March 24, 1966. We make these statements to give history of the proceedings and do not question the right of ap-pellee to amend his notice filed with the board.

Appellee, J. E. Pollan, brought suit in the District Court of Hale County, Texas, to set aside an award of the Industrial Accident Board for workman’s compensation benefits. Appellee alleged both specific injuries and a general injury, to wit: (1) injuries to his left little toe and left ankle and (2) injuries to his back and low back. Special issues were submitted inquiring as to whether appellee sustained an accidental personal injury or injuries to his body on or about April 22, 1965, along with the other standard workman’s compensation issues inquiring as to the nature and extent of any disability resulting from a general injury. In a separate series of issues, the Court inquired whether or not the injury, if any, consisted in part of an injury to plaintiff’s back and whether or not the injury, if any, to plaintiff’s back was a producing cause of the incapacity, if any, sustained by appellee. These inquiries were followed by special issues in regard to the specific injuries to appellee’s left ankle and left little toe.

The jury returned a verdict that appellee sustained an accidental personal injury on April 22, 1965, and that as a result thereof he was totally disabled for five weeks, and that thereafter he sustained a permanent, partial disability. The jury further answered that the accidental personal injury of appellee consisted in part to an injury to plaintiff’s back and that this injury was a producing cause of the incapacity previously found by the jury. The jury also found that appellee sustained a total loss of the use of his left little toe and that same was permanent. 'The jury found that the accidental personal injury sustained by ap-pellee also consisted in part to an injury to appellee’s left ankle, but that appellee did not sustain any total loss of use of his left ankle. The jury failed to answer the remainder of the issues in regard to ap-pellee’s left ankle and the verdict was so accepted by appellee.

Appellant’s complaints on this appeal fall into three categories:

(1) The lack of evidence to support the jury’s finding that appellee sustained an injury to his back in the accident in question and that same was a producing cause of his alleged disability;

(2) The lack of evidence that appellee sustained any disability as a result of a general injury, but that any disability sustained by appellee is caused solely by the specific injuries in question; and

(3) That the Honorable Trial Court erred in admitting evidence, over appellant’s timely objections, in regard to appellee’s character and reputation for truth and veracity.

We will first consider appellant’s 15th point of error which is as follows:

"Point No. 15
This case should be reversed because the Honorable Trial Court erred in permitting the plaintiff to introduce testimony in regard to the plaintiff’s truth, veracity, character and reputation over the defendant’s timely objections that there had been no predicate laid for such testimony, that the plaintiff’s truth and veracity had not been placed in issue, that the plaintiff had not been impeached, that said testimony was speculative, conjectural, called for a conclusion and an opinion on the part of the witness which he was not qualified to give, that it was hearsay, that the said testimony invaded the province of the jury, and that it was an attempt to bolster the plaintiff in his case in chief before the plaintiff ever took the witness stand to testify.”

That point does not complain of the evidence as to appellee being a good workman.

The appellee placed nine witnesses on the stand in chief before calling the appellee to testify. The first two were to show the accident happened. Six of the nine witnesses were permitted over the objections of the appellant to testify as to truth, veracity and reputation of the appellee or whethér appellee was a malingerer. The six witnesses were permitted to answer favorable to the appellant such questions as follows:

“Q. Based upon your knowledge of him and experience and observation over that period of forty-five years, would you state to the jury whether or not in your opinion he is the type of man that would try to lay off or say that his back was hurt or his foot or his ankle or toe, if it were not hurting him?
Q. Based upon your personal knowledge, observation, through observation, acquaintanceship with Mr. Pollan over this period of years that you have known him and observed him, is he, or not, in your opinion, or is he in your opinion the type of person or man or worker that would complain of his back hurting or his foot or leg or any other part of his body in order to shirk work, if it were not hurting?”

This evidence could have no bearing on the issues involved and obviously was introduced solely to bolster appellee’s reputation as to telling the truth and whether he was a malingerer. These questions seem to inquire of the witnesses if they thought appellee was a man who would make misrepresentations concerning an injury and if he was a malingerer. It is stated in Great Western Sugar Co. v. Hewitt, 127 Neb. 790, 257 N.W. 61, that “malingering as applied to workmen’s compensation cases means deception, practiced by dishonest employee, by feigning, inducing or prolonging either sickness or injury, for purpose of securing illegal or fraudulent compensation payments”.

There is nothing in this record to show appellant at the time of such testimony had questioned appellee’s good character for truth or honesty nor his veracity in any manner and neither had appellant at the time contended appellee was a malingerer. Neither is there anything in this record involving appellee’s character. Neither had he been impeached and neither did appellant attempt by its pleadings or evidence to charge appellee with commission of a crime involving moral turpitude. We are of the opinion that it was error to permit appellee to introduce the above mentioned evidence.

For a general discussion of why such evidence should not be admitted see Grant et al. v. Pendley et al., 39 S.W.2d 596 (Tex.Comm.App., approved by Sup.Ct.) and the many cases there cited. The Court there stated:

“We therefore announce the rule to be that supporting evidence of good character, either for truth and veracity or honesty and fair dealing, should only be admitted in those cases where the nature of the action directly involves the character of a party, where a witness has been impeached, or where a party by his pleading or evidence charges his adversary with the commission of a crime involving moral turpitude.”

See also Waggoman et al. v. Fort Worth Well Machinery & Supply Co. et al., 124 Tex. 325, 76 S.W.2d 1005 citing the holding in the Grant case as being correct; Livestock Feeder Co. et al. v. Few et al., 397 S.W.2d 297 (Tex.Civ.App., n. r. e.); Fort Worth Hotel Co. et al. v. Waggoman, 126 S.W.2d 578 (Tex.Civ.App., judgment correct) .

The Grant v. Pendley case is also given in 78 A.L.R. 638 showing that the holding there was approved and upheld by the great majority of the courts. That text there stated it has generally been held that the admission of such evidence is grounds for reversal. Since we are of the opinion the case should be reversed because of the matters above discussed, we deem it unnecessary to discuss other points as they may not arise on another trial. Judgment of the trial court is reversed and remanded.