author: GREEN, Chief Justice.

text:
    FEDERAL INSURANCE COMPANY et al., Appellants, v. George F. BOCK et al., Appellees.
    No. 51.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 10, 1964.
    Rehearing Denied Oet. 8, 1964.
    J. S. Covington, Jr., and Newton Gresham, of Fullbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellant..
    Ross Meredith, of Webb, Webb & Meredith, Elgin, Allen McMurrey, of Maynard & McMurrey, Bastrop, for appellee.
   GREEN, Chief Justice.

In a trial before the court on a written stipulation of facts, appellees, hereafter referred to as Bock, recovered judgment against appellants, hereafter called Federal, from which Federal appeals. We affirm-.

At all times concerned, Bock was actively engaged in the business of processing and cold storage of meats at the Bock Building in Galveston. For this purpose cold storage vaults refrigerated by electrically powered machinery were used, with the electricity furnished solely by Houston Lighting and Power Company. Prior to and on September 11, 1961, and thereafter, the refrigerating machinery and all of its electrical equipment were in good operating condition and capable of keeping all meats in the vaults from spoiling if supplied with the customary amount of electricity. On or about 3:00 p. m., Monday, September 11, 1961, the electrical transmission lines of Houston Lighting and Power Company from the mainland to Galveston were damaged, approximately five miles from Bock’s building, by the winds of Hurricane Carla, resulting in a complete stoppage of electricity to the city of Galveston, and to Bock. Power was not restored to Bock until about 11:45 a. m., Thursday, September 14, 1961. The resulting lack of refrigeration caused the temperature in the cold storage vaults to rise, resulting in loss of from 10% to 15% of the meat, being an agreed money loss of $2,418.36. Hurricane Carla did no damage to the Bock Building or to any of its refrigerating or electrical equipment. It was stipulated that neither Bock nor any other person or corporation did any act or left undone any act which caused, aggravated or extended in any way the loss sustained by Bock. There was no dispute concerning the failure of Bock or of any other person or corporation to take the necessary precautions, in so far as they could possibly do so, to prevent the loss.

At the time of the loss, the meat inventory of Bock in the building was insured by Federal under policies which stated, in part, as follows:

“(Federal) does insure (Bock) against direct loss resulting from * * * windstorm, hurricane * * *

In its decree granting Bock recovery, the trial court made the following express finding:

“That the term ‘ * * * direct loss by windstorm and hurricane * * ’ as used in the insurance policies issued by the defendants in insuring the plaintiffs includes the losses suffered by the plaintiffs, same being losses occasioned by wind-caused interruption to power supply resulting in spoilage of coldstorage meats.”

The issue we are called upon to decide is whether the trial court erred in his holding that the provision in the policies “direct loss resulting from * * * windstorm, hurricane” includes the loss sustained by Bock.

Both parties agree that they have found no Texas case interpreting the meaning of “direct loss” in an insurance policy where the peril insured against (the hurricane) (1) acts upon uninsured property (the transmission lines) (2) at a significant distance from the point of ultimate loss (five miles) (3) at a time significantly in advance of the actual loss (the winds died down in a few hours, but the power remained off for three days, causing the heat to rise gradually and spoil the meat) (4) but which peril is within the chain of events leading to the loss. We feel, however, that there are a number of Texas decisions which show the Texas trend to support the ruling made by the trial court under the the fact situation presented.

In Hall v. Great National Lloyds, 154 Tex. 200, 275 S.W.2d 88, the Supreme Court stated:

“In construing the terms of the policy, we shall determine the everyday meaning of the words and in ‘common parlance’ and ‘ “the usual and popular understanding of the terms” ’ used. U. S. Ins. Co. v. Boyer, [153] Tex. [415], 269 S.W.2d 340, 341; Security Ins. Co. v. Sellers-Sammons-Signor Motor Co., 1921, Tex.Civ.App., 235 S. W. 617, refused. If the terms of the contract are susceptible of more than one meaning they will be construed strictly against the insurer.”

See, also, Trahan v. Southland Life Insurance Co., 155 Tex. 548, 289 S.W.2d 753.

The courts recognize a distinction between the terms “loss” and “direct loss” as used in an insurance policy. Travelers Indemnity Company v. Jarrett, Tex. Civ. App., 369 S.W.2d 653, n. w. h. However, we have found no Texas authority which gives “direct loss” the restricted meaning as contended for by Federal, to-wit, “a loss by reason of the operation of the force of the designated peril upon the insured object.” A proper definition of “direct loss” is “loss proximately caused by the peril insured against”, and the term “proximate cause” as applied in insurance cases has essentially the same meaning as it does in negligence cases, except that in insurance cases, the element of foreseeableness or anticipation of the injury as the result of the peril insured against is not required. Reliance Insurance Co. v. Naman, 118 Tex. 21, 6 S.W.2d 743; Federal Life Ins. Co. v. Raley, 130 Tex. 408, 109 S.W.2d 972; Provident Life & Accident Ins. Co. v. Holt, Tex.Civ.App., 27 S.W.2d 556; Camden Fire Ins. Ass’n v. Moore, Tex.Civ.App., 206 S.W.2d 104, writ ref. n. r. e.; Farmers Insurance Exchange v. Wallace, Tex.Civ. App., 275 S.W.2d 864, writ ref. n. r. e. Thus, in a suit on a policy insuring for “direct loss” caused by the named peril, a proper definition of proximate cause would be “that cause which in a natural and continuous sequence unbroken by any new and intervening cause, produces a loss, and without which the loss would not have occurred.” Provident Life & Accident Ins. Co. v. Holt, supra; 32 Tex.Jur.2d, Insurance, Sec. 365, pp. 562 et seq.

United States Insurance Company of Waco v. Boyer, 153 Tex. 415, 269 S.W.2d 340, was a suit upon the collision clause of a standard automobile policy. While the insured car was parked on a downtown street in Waco, a windstorm demolished a building, and the car was crushed under falling brick and timbers. The car was not damaged by the winds blowing directly against it. The car owner did not purchase windstorm insurance but did have collision insurance. The “windstorm provision” would pay "for direct and accidental loss of or damage to the automobile, hereinafter called loss, caused by windstorm * * The Supreme Court reversed a judgment for plaintiff and rendered for the insurer, saying: “ * * * we hold that this loss falls within the windstorm provision of the policy and not within the collision provision.” Since plaintiff was not covered by the windstorm provision, he did not recover.

In the course of the opinion, the court quotes with approval from an annotation in 23 A.L.R.2d, at page 405, as follows:

“The test applied under the rule of proximate cause seems to be that where, and only where, an insured peril sets other causes in motion which in unbroken sequence and connection produce the final result for which the insured seeks to recover under his policy, the peril insured against will be regarded as the direct and proximate cause of the entire loss, so as to render the insurer liable for the entire loss within the limits fixed by the policy. The rationale behind this rule is that the scope of insurance protection is defined by the application of the proximate cause standard, according to which a specified loss is compensable if and only if caused by a peril covered by the policy.”

Federal, in citing the opinion in Travelers Indemnity Company v. Jarrett, supra, in support of its contention that Carla was a remote, rather than a direct or proximate, cause of Bock’s loss, argues that “Although it does not interpret a policy covering ‘direct loss’, the case is important to this discussion since it demonstrates that the courts recognize a difference between the terms ‘direct loss’ and ‘loss’. The case infers that if only ‘direct loss’ had been covered, the insured would not have recovered.” We do not interpret the opinion as leaving such inference.

In that case, it was held that damage to an electric refrigerator caused by spoilage of food when electric power was cut off for 12 days due to damage to a transformer caused by lightning was covered by a policy insuring ‘loss by lightning.’ Appellant insurer contended that the lightning was a remote, and not a proximate, cause, and that the spoilage of the food, which insurer contended was expressly excluded by the terms of the policy, was the proximate cause of the damage to the refrigerator. In answering this argument, the court said:

“Even if we apply insurer’s criterion, however, we determine there was evidence of probative force that lightning was the dominant, efficient moving cause which set incidental, resulting, and consequential agencies in operation (though the latter may be nearer in point of time and space to> the ultimate result) in a natural and continuous sequence. Foreseeability is not an element. Federal Life Ins. Co. v. Raley, 130 Tex. 408, 109 S.W.2d 972, [973], 974. The resulting condition of the food is not an intervening cause; it is merely an intervening link in the chain of causation.”

Federal says that because the winds of Carla ceased to blow within a few hours after the power lines were damaged, prior to the time of the actual damage to the meat, this was not a direct loss caused by the hurricane. It is true that the spoilage of the meat was a gradual process, and was the result of the rise of temperature in the vaults over a period of three days, during which time the power was unavoidably off. It was stipulated that neither Bock, nor any other person or corporation, did any act or left undone any act to cause, aggravate, or extend the loss. Carla set off the series of events which, unbroken by any new or intervening cause, led directly to the spoilage of the meat. The sole source of electricity to the City of Galveston, and to Bock’s cold storage vaults, were the transmission lines from the mainland. These were admittedly damaged by the winds of the hurricane five •miles from Bock’s building, causing loss of power to Bock’s refrigerating vaults for over 68 hours, causing the temperature in said vaults to rise, which resulted in the spoilage of the meat. The insurance, for which Bock paid an annual premium of $492.50, expressly covered the contents of Bock’s building, specifically reciting “Occu-pancyMeat & Cold Storage.” The only way to protect the “Meats & Cold Storage” was by having a continuous flow of electrical power to the plant. The finding that the hurricane was the proximate cause of Bock’s loss and not a remote cause is amply supported by the facts. We do not see how any other conclusion could properly have been reached.

We have carefully considered the cases submitted and analyzed in Federal’s brief, such as Abady v. Hanover Fire Insurance Company, 4th Cir.1959, 266 F.2d 362, and Williams v. Liberty Mutual Fire Insurance Co., 1956, 334 Mass. 499, 135 N.E.2d 910, and feel that they are distinguishable on the facts and not controlling. In so far as statements contained in the opinions may support Federal’s views, we believe they are contrary to the weight of authority and reason.

Lipshultz v. General Insurance Company of America, 1959, 256 Minn. 7, 96 N.W.2d 880, is parallel with the present case, and strongly supports our holding. There, the policy insured the contents of plaintiff’s building against direct loss by windstorm. The case was tried on a stipulation of facts to the effect that a windstorm in the locale of plaintiff’s building blew down power lines, putting an electric power supply station out of service, with the result that plaintiff’s foodstuffs stored in the building were cut off from their electric refrigeration for 35 hours and severely damaged. Stating that the sole question was whether the spoilage of the perishables constituted a direct loss by windstorm, the court applied the test of proximate cause, and said that the chain of events culminating in the loss was set in motion by the windstorm, and that it would hardly seem reasonable to say that a break in the power lines as the result of a windstorm was not in contemplation of the parties when insuring a stock of perishable foods requiring refrigeration. The court rejected the insurer’s contention that the loss due to interference of electric power brought on by the windstorm was a mere •consequential damage, and stated that to so hold would be entirely too narrow a construction of the policy, and that since it •could be reasonably foreseen that an interruption of electric power due to windstorm would cause damage to the contents of the building, such contingency was an element in the risks covered by the policy, and constituted a direct loss by windstorm. The opinion goes even further than necessary under the Texas rule of proximate cause in insurance cases, since the element of foreseeability is not required.

The well-written opinion discusses the authorities pro and con on the issue raised, including Williams v. Liberty Mutual Fire Insurance Co., Mass., supra, and, we feel, arrives at the proper conclusion. We refer to the opinion for further study of other authorities on this subject.

Applying the test of proximate cause as above discussed and the rules of construction of insurance policies as laid down by our State Supreme Court in United States Insurance Company v. Boyer, supra, Hall v. Great National Lloyds, supra, and Trahan v. Southland Insurance Co., supra, to the facts as stipulated, we hold that the trial court did not commit error in concluding that the spoilage of the meat in Bock’s vaults was a direct loss by windstorm and hurricane, and was included within the terms of the policies.

Judgment affirmed.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    Luther KOONCE, Appellant, v. CITY OF MESQUITE, Appellee.
    No. 13.
    Court of Civil Appeals of Texas. Tyler.
    July 16, 1964.
    Rehearing Denied Sept. 17, 1964.
    See also, 343 S.W.2d 557.

      Allen Melton, George M. Elliott, Dallas, for appellant.
    B. Robert Baker, Saner, Jack, Sallinger & Nichols, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This suit was initiated by the Appellant and tried before a jury on December 11, 1961, in the 68th Judicial District Court of Dallas County, Texas. The jury rendered a verdict for the Defendant, Appellee, on. December 14, 1961. This was followed by a motion for judgment on January 18, 1962, with judgment being rendered and signed on December 12, 1962, by the Honorable Paine L. Bush, Judge of the 68th Judicial District Court, after which the Appellant filed his motion for a new trial on December 21, 1962, and his amended motion for a new trial on January 10, 1963, whereupon, by operation of law the amended motion for a new trial was overruled on February 25, 1963.

Shortly thereafter, in the early part of March, 1963, the court reporter, J. R. Mc-Atee, suffered a heart attack and after an extended illness of several months, died.

Thereafter on April 16, 1963, the last day the statement of facts was to be filed to perfect the appeal, the Appellant filed his first motion to extend the time within-which to file a statement of facts. The-District Court granted the motion and extended the time until April 26, 1963.

The Appellant filed numerous motions-for extension of time in which to file his statement of facts, alleging that he was-unable to obtain same due to the illness of the court reporter, each of which motion was granted, the last of which extended' the time to February 12, 1964, on which. date the time for the filing of ,a statement of facts expired. No statement of facts has been filed.

Then, on February 14, 1964, Appellant filed his motion to defer submission of this cause or in the event an agreed statement of facts cannot be produced that the cause be remanded to the lower court for re-trial. The Court granted Appellant’s motion and deferred the submission of this cause for 60 days, without taking any action on the motion to remand.

On April 16, 1964, Appellant filed his motion in the form of a letter requesting the Court to reverse and remand the case to the 68th Judicial District Court of Dallas County, Texas, for re-trial. Accompanying said letter was an affidavit from the Honorable Owen Giles, Judge of the 68th Judicial District Court of Dallas County, Texas, who was not the trial judge, wherein he stated:

“Judge Paine L. Bush, the duly elected and qualified Judge of the 68th Judicial District Court, tried this case and granted the judgment from which the present appeal was taken. The present Judge of the 68th Judicial District Court was duly elected, qualified and has served since January 1, 1963.
“The present Judge of the 68th Judicial District Court has no knowledge of the facts introduced in evidence on trial, and is unable to prepare a Statement of Facts covering the evidence introduced in the trial of the case, neither is this Court able to certify to any true Statement of Facts which might be filed in the Court of Civil Appeals, nor is this Court able to certify to a true Statement of Facts, or produce for filing a true Statement of Facts in this case for any purpose.”

The record of this case does not show that any attempt was made by the Appellant .to prepare a statement of facts and submit the same to Appellee or its counsel for approval; or that Appellant made any attempt to prepare a statement of facts and submit the same to the Judge who tried the case for his approval; or that there was a request made to the Honorable Judge Paine L. Bush, the Judge who tried the case, to prepare a statement of facts.

Rule 377, Texas Rules of Civil Procedure was adopted and made effective by the Supreme Court of this state on December 31, 1941. The rule, in substance, provides that a party may prepare a statement of facts and submit the same to the opposing counsel for his approval and if approved, then this becomes the statement on appeal, and if the parties are unable to agree or disagree on a statement of facts within 10 days, then the matter is submitted to and settled by the trial judge and the statement of facts, be by him, made to conform to the truth. The record here is silent on any effort on the part of the appellant to pursue his rights afforded by Rule 377, T.R.C.P.; and not having done so, he cannot now be said to be without fault or negligence in being deprived of a statement of facts, due to his inability to obtain a stenographer’s statement of facts.

It is well settled, we think, that where an Appellant has been deprived of a statement of facts material to his appeal, without fault or negligence of himself or counsel, he is entitled to reversal of the judgment for which he appealed. But, we do not think the Appellant in the case' at bar presents any such case. Joachim v. Hamilton, (Tex.Civ.App.) 1916, 186 S.W. 251, writ dismissed. In Vol. 3, Tex.Jur.2d, page 732, Section 487.

The effect to be given Rule 377, T.R.C.P. was first considered in Texas in the case of Crawford v. Crawford, (Tex. Civ.App.) 1944, 181 S.W.2d 992, writ dismissed. In the Crawford case as in the case before us, the Appellant’s inability to obtain a court reporter’s transcript of the statement of facts was due to the death of the court reporter. The Appellant attempted to comply with Rule 377 by submitting a proposed statement of facts to the Appellee for his approval. They were unable to agree and subsequently, at the Appellant’s request, the trial judge prepared a statement of facts. On appeal, the Court of Civil Appeals overruled the Appellant’s contention that he was entitled to a statement of facts prepared by the court reporter, holding that the trial judge’s statement sufficed. In a well-written opinion discussing the cases preceding Rule 377, and the effect of the new rule, the court in that case held as follows:

“This hiatus in the process of appeal, or rather restriction upon the methods of securing to litigants the right of appeal, resulted from a series of acts of the 42d Leg., which passed no less than three inconsistent acts upon the subject.
“The Supreme Court in due course bridged the hiatus and removed the restriction by adopting Rule 377, and incorporating therein the provision that in cases of disagreement among the parties upon the statement of facts the trial judge was given the power and it was made his duty to settle those differences by preparing and filing a statement of facts to ‘be by him made to conform to the truth.’ After all that may be said, that was done by the trial judge in this case. * * * she stands, simply, upon the bald contention that she was entitled to a complete question and answer transcript as a matter of absolute right, and for reversal because of its absence through no fault of her own. We overrule the contention.”

The Court held also that an Appellant is not entitled to a new trial wherein the death of a court reporter has deprived him of the reporter’s statement of facts, where the then and now existing Rule 377 provides alternative methods of obtaining a statement of facts; the court also held that the Judge’s statement of facts prepared under Rule 377 will suffice.

In Johnson v. Brown, (Tex.Civ.. App.) 1948, 218 S.W.2d 317, writ ref., n.. r. e., the Crawford case was cited with approval. The case involved an appeal from a judgment wherein a special judge presided in the absence of the regular judge who was ill, and where the court reporter failed to take down the testimony offered! The Court of Civil Appeals in affirming the trial court’s judgment states on page 320 r

“Defendant argues that no statement of facts can be made up under Rule 377, Texas Rules of Civil Procedure, in the absence of a reporter’s transcript of the evidence heard by the trial court,, and he seeks, in effect to have this court apply on this writ of error the holding' made in Pacific Greyhound Lines [Inc.] v. Burgess, Tex.Civ.App., 118 S.W.2d 1100, which follows Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697.
“We do not agree with this argument ; Rule 377 is the governing Rule,, but it authorizes the filing of a statement of facts made up by the party, or by the trial judge if the parties fail to agree, independently of a reporter’s notes of testimony. The San Antonio Court so held in Crawford v. Crawford, Tex.Civ.App., 181 S.W.2d 992
* * * Being satisfiéd that the method exists, we decline to limit its availability (in the sense indicated) in the absence of any expressed limitation in the Rules. The majority in Crawford v. Crawford, after referring to the procedure in force under the statutes enacted in 1931 and to the apparent expression in Rule 377 of an intent to change this procedure, held that this alternative method of preparing a statement of facts applied even in a case where the reporter had taken notes of the testimony and the parties had been deprived of these notes by the reporter’s death.”

In the case of Harris v. Lebow, (Tex. Civ.App.) 1962, 363 S.W.2d 184, writ ref., n. r. e., the Dallas Court of Civil Appeals in affirming for the Appellee states on page 185: •

“By his first point of error appellant contends that since the testimony was not recorded he has been deprived of a statement of facts without fault or negligence. The record contains a statement from the official court reporter to the effect that he did not report the testimony. It is generally true that an appealing party is entitled to a statement of facts in question and answer form and if, through no fault of his own, after the exercise of due diligence, he is unable to procure such a statement of facts, his right to have the cause reviewed on appeal can be preserved to him in no other way than by a retrial of the case. Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697; Pacific Greyhound Lines v. Burgess, Tex.Civ.App., 118 S.W.2d 1100. However, appellant has failed to bring himself within this general rule of law and his first point must be overruled for several reasons.
«* * *
“ * * * appellant made no effort to obtain a statement of the evidence as provided by Rule 377, Texas Rules •of Civil Procedure. This rule authorizes the filing of a statement of facts made up by the party, or by the trial ■court if the parties fail to agree, independently of a court reporter’s notes of the testimony. Crawford v. Crawford, Tex.Civ.App., 181 S.W.2d 992; 3 Tex. Jur.2d § 474, p. 721. The identical question now presented by appellant was raised in the case of Johnson v. Brown, Tex.Civ.App., 218 S.W.2d 317 and there decided adversely to appellant’s contention here. The record here is silent as to any effort on the part of appellant to pursue his rights as afforded by Rule 377 T.R.C.P. and not having done so he cannot now be said to be without fault or neglect.”

See Pruitt v. Blesi, (Tex.Civ.App.) 204 S.W. 714, 1918, writ refused; Hall v. Kynerd, (Tex.Civ.App.) 97 S.W.2d 278, 1936, writ dismissed; Joachim v. Hamilton, (Tex.Civ.App.) 186 S.W. 251, 1916, writ dismissed.

In the case at bar, Appellant rests his case solely upon the absence of and inability to obtain a statement of facts in question and answer form from the official court stenographer’s notes and relies upon the case of Victory v. Hamilton, Supreme Court of Texas, 91 S.W.2d 697. In the case of McClure v. Miller (Tex.Civ.App.) 1938, 116 S.W.2d 470, Dism. agr., the court in disposing of Appellant’s contentions that it was impossible for him to secure a statement of facts in question and answer form because of the whereabouts of the official court reporter who reported the proceedings of the trial court was unknown and that said court reporter was either dead or could not be located if alive, the court in disposing of this contention says on page 471, in distinguishing the case of Victory v. Hamilton, supra:

“Furthermore, it appears that no effort was made to prepare a statement of facts, although the trial judge testified that by the use of the notes he made, the pleadings of the parties, and a conference of the attorneys for both litigants, such a statement of facts could be prepared. A statement of facts thus prepared would have protected the appellant as to all assignments of error predicated upon an insufficiency of the evidence to support any issue submitted to the jury, or the finding made by the jury on any issue.
^ H=
“In the instant case, appellant is content to rest his case solely upon the absence of an inability to obtain a statement of facts in question and answer form from the official court stenographer’s notes.
“We are of the opinion that a litigant must go further and exhaust his efforts to secure his bills of exception and a fair statement of the facts adduced, and then show that he has been unable to protect himself on the appeal, after such diligence on his part, before the relief prayed for will be given him.”

In the case of Victory v. Hamilton, supra, the court had before it a question dealing with a situation wherein the court reporter died after the trial, which is the identical situation we have in the instant case. The Supreme Court in that case, basing their holding on the facts that as soon as a court reporter died, the attorneys for the party prosecuting the writ of error made diligent effort to have the notes transcribed by other shorthand writers and experts, but were unable to do so. The attorneys also made affidavits to the effect that they did not recall from memory the testimony of the witnesses or the substance thereof. The Appellant’s motion was verified by affidavit showing due diligence of the attorneys and their inability to prepare a statement of facts and by an affidavit of the Honorable Sam R. Scott, the trial judge, in which he states, that if he were called upon to make out a certified statement of facts without the assistance of the transcript of the reporter’s notes taken at the trial, he could not do so. The court held that this was due diligence on the part of the Appellants. No such diligence was shown by Appellant in the instant case.

The Appellant in the case at bar has filed an affidavit with this court given by the Honorable Owen Giles, Judge of the 68th Judicial District Court of Dallas County, Texas, having served in this capacity since January 1, 1963, having been duly elected at the general election immediately prior thereto, succeeding Judge Paine L. Bush, who did not seek re-election. Prior to that time, Judge Paine L. Bush presided over this court and was the presiding judge throughout the trial of this cause.

It is the settled law of this state that the judge who tried the case must approve the bill of exceptions and statement of facts in a case, even though his term of office may expire before he is called upon to do so, and that where his bill of exceptions and statement of facts are approved by his successor in office, and he is living and available they are not properly authenticated and cannot be considered as a part of the record. United Gas Pipe Line Co. v. Helscher, (Tex.Civ.App.) 1953, 259 S.W.2d 735, no writ history. C-R-C Law List Co. v. Rowe, (Tex.Civ.App.) 1918, 204 S.W. 781, no writ history; Henderson v. Soash, (Tex.Civ. App.) 1941, 157 S.W.2d 161, no writ history; Hudnall v. State, (Tex.Crim.App.) 1927, 296 S.W. 293.

The record before this court does not disclose the death of Judge Paine L. Bush, the trial judge, nor is any reason shown why he was not requested to make up an approved statement of facts. Thus, it can be seen that the affidavit of Judge Owen Giles is not sufficient and cannot be considered by this court as any evidence of diligence on the part of the Appellant to obtain a statement of facts.

The Appellant in the instant case is further precluded due to the fact that he has attempted to raise a failure to obtain a statement of facts for the first time on appeal. In 3 Tex.Jur.2d, Sec. 487, p. 733, is the following:

“It has been held that the failure to obtain a statement of facts must be assigned as error, and presented by a bill of exceptions. It will not be considered when presented only by a motion for reversal filed in the appellate court and based on affidavits setting out the facts.”

A rather recent Texas Civil Appeals decision in point is the case of Harris v. Lebow, supra, which held:

“In the first place the failure to obtain a statement of facts was not assigned as error in appellant’s motion for a new trial. The first complaint of appellant for failure to have a statement of facts is contained in an alleged ‘exception’ filed long after the order of the ■court overruling appellant’s motion for new trial. It has been held that the failure to obtain a statement of facts must be assigned as error and will not be considered when presented only for the first time in the appellate court. 3 Tex.Jur.2d § 487, p. 732; Reagan v. Copeland, 78 Tex. 551, 14 S.W. 1031; Ennis Mercantile Co. v. Wathen, 93 Tex. 622, 57 S.W. 946.”

So far as the record discloses, there are no fundamental errors, the Appellant has had a fair trial, and the failure on his part and that of his counsel to perfect the record as pointed out above, makes it our duty to affirm the judgment of the trial court. McClure v. Miller, supra.

The trial court’s judgment is affirmed.

ON MOTION FOR REHEARING

The Appellant has filed his Motion for Rehearing, complaining of our holding that he had not shown diligence in obtaining a Statement of Facts and that the failure to obtain a Statement of Facts must be assigned as error and presented by a Bill of Exception. After careful consideration of Appellant’s Motion for Rehearing, we remain convinced of the correctness of our previous holding. As additional authority on the point that the failure to obtain a Statement of Facts must be presented by a Bill of Exception and assigned as error, we cite the case of Comer v. Farrell, (Tex.Civ. App.) 1931, 45 S.W.2d 432, no writ history, wherein the Court said:

“On October 3, 1931, we overruled appellants’ motion to reverse and remand, based upon the ground that, without their fault, they had been deprived of a full and complete statement of all the facts proven on the trial below. The question was presented by motion simply, supported alone by affidavits, as no bill of exception was reserved to the action of the court approving the incomplete statement, nor did they assign error thereon. In overruling the motion to reverse and remand on the ground presented, we followed the well-established rule that, to entitle a litigant to a reversal, under the circumstances, the action of the court complained of should have been made a part of the record by bill of exception, and assigned as error. The rule governing such a situation is announced in 3 Tex.Jur. p. 641, as follows: ‘To entitle a party to a reversal in any event the failure of the judge to approve the statement presented to him or to prepare one himself must be shown by the record, and must be assigned as error. The matter must be presented by a bill of exceptions, and will not be considered when presented only by a motion for reversal filed in the appellate court, accompanied by affidavits setting out the facts.’ This doctrine is fully sustained by the decisions, and we think the principle announced is applicable to and rules the question under consideration.”

See Ludtke v. Warren, (Tex.Civ.App.) 1926, 285 S.W. 339, no writ history; Rankin v. Nash-Texas Co., (Tex.Civ.App.) 58 S.W. 2d 902, no writ history.

In the case of Ennis Mercantile Co. v. Wathen, supra, the Supreme Court said:

“ * * * Authority to inquire into the existence of facts not contained in the record is conferred upon the courts of civil appeals by article 998 (now article 1822), which reads as follows: ‘The said courts shall have power, upon affidavit or otherwise as by the courts may be thought proper, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction.’ This article restricts the power of the courts of civil appeals to inquire into matters of fact not appearing in the record to such as affect its jurisdiction. * * * ”

This case has been followed and quoted with approval in Applebaum v. Bass, (Tex. Civ.App.) 1908, 113 S.W. 173, no writ history; Rush v. J. E. Thompson & Company, (Tex.Civ.App.) 1908, 113 S.W. 546, no writ history.

There is another reason which was not discussed in the original opinion that we think supports the Court’s decision in affirming this case. This case was appealed from the 68th District Court of Dallas County. The Transcript was filed in the office of the Clerk of the Court of Civil Appeals, at Dallas on April 25, 1963, and thereafter the case was transferred to this Court. Submission of the case and oral argument was set for July 9, 1964, in this Court, and due notice given to each of the parties. The Appellant failed to file a Brief herein, or to appear on the date of submission. The Appellee’s attorney appeared in person on the date this case was set for submission, waived oral argument, and filed a Brief on behalf of Appellee. On February 18, 1964, Appellee filed its Motion to Affirm the Judgment of the Trial Court. Under this situation, pursuant to Rule 416 of the Rules of Civil Procedure, this Court is authorized to regard the Appellee’s Brief as a correct presentation of the case. As presented in the Appellee’s Brief, the Trial Court’s judgment should be affirmed. Temple Grain & Hay Company, Inc., v. Throckmorton Mill & Elevator Company, Inc., (Tex.Civ.App.) 1959, 320 S.W.2d 892, no writ history; Federal Underwriters Exchange v. Husted, (Tex.Civ.App.) 1936, 94 S.W.2d 540, writ dismissed; Longoria v. Liddell, (Tex.Civ.App.) 1937, 101 S.W.2d 845, no writ history; Guaranty Old Line Life Ins. Co. v. Leonard, (Tex.Civ.App.) 1937, 109 S.W.2d 1091, no writ history; Beckmann v. Beckmann, (Tex.Civ.App.) 1939, 122 S.W.2d 1117, writ dismissed; Bute v. Ruland, (Tex.Civ.App.) 1942, 158 S.W.2d 854, no writ history; Meacham v. Lyles, (Tex.Civ.App.) 1947, 206 S.W.2d 881, writ refused, n. r. e.

Remaining convinced under the record before us that this case was correctly disposed of in our original opinion, we respectfully overrule Appellant’s Motion for Rehearing.


author: STEPHENSON, Justice.

text:
    KIRBY LUMBER CORPORATION et al., Appellants, v. Maggie TREADWAY et al., Appellees.
    No. 6642.
    Court of Civil Appeals of Texas. Beaumont.
    Aug. 13, 1964.
    Rehearing Denied Sept. 16, 1964.

      Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, Carey Williams, Houston, for appellants.
    Dies, Anderson & Dies, Lufkin, Campbell & Foreman, Livingston, for appellees.
   STEPHENSON, Justice.

This is an appeal from an order overruling the defendants’ pleas of privilege. The parties will be referred to here as they were in the trial court.

This is an action for damages brought by the survivors of Wilford Richard Treadway under the wrongful death statute. There are two sets of defendants with allegations of different theories of liability against each. The driver of the truck which collided with the truck driven by the deceased, along with his two employers, was sued for the negligent operation of their truck. These defendants will be referred to as “individual defendants”. Kirby Lumber Corporation was sued for the negligent maintenance of the private road and adjacent area, at the scene of the collision, and will be referred to as the “corporate defendant”. The individual defendants were residents of Liberty County. Kirby Lumber Corporation was a Harris County corporation. The collision occurred in Polk County where this suit was filed. Plaintiffs alleged in the controverting plea, that venue should be maintained in Polk County under Sections 9a, 23, 29a and 27 of Article 1995, Vernon’s Ann.Civ.St. Both pleas of privilege were overruled, and appeals were taken from each. No findings of fact nor conclusions of law were requested or given.

The individual defendants complain of the failure of the trial court to sustain their first special exception to plaintiff’s controverting plea. It is urged that the choice of words used in the controverting plea “plaintiffs say” that certain things occurred does not amount to a direct statement that the things actually occurred, and that this failure to meet the standard required is a fatal error. The controverting plea made the plaintiff’s petition a part of the plea by reference. We hold that pleadings which use the words “plaintiffs say” or “plaintiffs allege” or any similar words which convey the same meaning, satisfy the requirements of the rules that controverting pleas assert clear and definite statements of fact. The authorities cited by these defendants are not in point.

The individual defendants’ second exception was directed to the failure of the controverting plea to allege that these defendants were necessary parties to the cause of action alleged against the corporate defendant within the meaning of subsection 29a of Article 1995, V.A.C.S. If subsection 29a had been the only exception alleged, then this court would have to determine this issue, but the controverting plea also alleges subsection 9a. In the absence of findings of fact and conclusions of law, it is not possible for this court to know whether the trial court refused to sustain this plea of privilege under section 29a, 9a or both. This refusal could be harmful to those individual defendants only if the controverting plea alleged no valid ground. No attack is made that section 9a was not applicable, except as set forth in the first special exception mentioned. The point is overruled.

The trial court permitted the plaintiffs to file an unsworn trial amendment during the course of hearing the pleas of privilege, alleging that the two owners of the truck who were individual defendants, permitted the driver of the truck the other individual defendant, to drive a vehicle he was not accustomed to and for which he had no driver’s license. Many other acts of negligence had been alleged, and in the absence of findings of fact and conclusions of law it is impossible for this court to know the basis of the trial court’s ruling. No attack is made upon the failure to allege other grounds of negligence, and no harm is shown.

The individual defendants also complain of the action of the trial court in the admission of certain evidence. There are 342 pages of evidence in the statement of facts of which the portion objected to is only a small part. There is no suggestion that the portion objected to could be the only supporting evidence for the refusal to sustain the plea of privilege. In the absence of findings of fact and conclusions of law it will be presumed the trial court considered only legitimate evidence. The points are overruled.

Kirby Lumber Corporation, the corporate defendant, relies primarily upon the failure of plaintiffs to allege and prove a cause of action against it. In a venue hearing the plaintiff has the same burden of proving a cause of action as on a trial on the merits. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91.

Plaintiffs alleged in their controverting plea that the “action” should be maintained in Polk County as to this corporate defendant under Sec. 23 and Sec. 27, Art. 1995, V.A.C.S. Plaintiffs were required to plead and prove a cause of action in Polk County under each of these sections of the venue statute. Plaintiffs also alleged venue could be maintained under Sec. 29a, Art. 1995, V.A.C.S., but did not allege that either set of defendants was a necessary party to an action against the other.

Plaintiffs’ petition was made a part of the controverting plea by reference. Plaintiffs alleged the fatal accident occurred as the deceased was driving south on Highway 146, and collided with a truck driven by the individual defendant Walker, as the said Walker darted out of a private road owned and maintained by the corporate defendant. It was alleged that the corporate defendant was negligent in maintaining this private road in its uneven, muddy and boggy condition so that it was almost impossible for a loaded truck coming out of the private road to halt before entering the highway, but making it necessary to accelerate the speed to pull up the incline to Highway 146. Plaintiffs also alleged the corporate defendant was negligent in permitting weeds, bushes and undergrowth to grow so high and thick on its land at this intersection so as to obscure the view of the driver of a truck approaching this intersection as the defendant Walker was doing. The evidence showed the highway right-of-way was 120 feet wide, and the main travelled portion was 40 feet wide.

In passing upon the sufficiency of the evidence to support the order of the trial court overruling the plea of privilege, we disregard all adverse evidence and give credit to all evidence that is favorable to the successful party, and indulge every reasonable conclusion that is favorable to him. Heldt Bros. Trucks v. McCollum, Tex.Civ.App., 293 S.W.2d 214.

The testimony showed there was an incline from the road of the corporate defendant to Highway 146, and that this road was muddy, wet and boggy at the time of the collision. One of plaintiff’s witnesses, an employee of the corporate defendant, testified as follows:

“Q. And, of course, the added feature of having a mud hole there also would have been taken into consideration by a truck driver as he approached that intersection, wanting to get up on the main traveled portion of Highway 146, wouldn’t it?
■“A. Well, I’d just look at it as myself. If I was entering it, and I was getting along pretty good, to see a place like that, I think I’d stop and put it in lower gear and then get on out on the highway.
■“Q. Another way to do it also would be to accelerate your truck and pick up speed, where you would go on up over the incline to the road. Wouldn’t that be true?
“A. Well, a man could do that, yes, sir.”

'This witness also testified that this private Toad had not been worked for more than two months before the date of the collision, and that there was no stop sign at the intersection. Another witness testified the "brush on the land of the corporate defend.ant was pretty thick and high. A witness •driving along behind the truck driven by the deceased testified as to the driver of the second truck as follows:

“Q. Now, you say that the truck dashed out. How fast was this pine log truck going?
“A. Well, he didn’t dash out.
“Q. You say he did not dash out?
'“A. Not dash, no. I didn’t mean it that way. He just drove on out in the road, like he was trying to hit it so he could make it or something.
■“Q. Could you estimate his speed?
■“A. Oh, no, not — I wouldn’t be fair in estimating it, probably between five and ten miles an hour, after he got up on the road.
“Q. After he got up on the road?
“A. Looked like he was hitting it pretty hard to get on the road.
“Q. Then the operator, the Negro had to cover whatever distance it was from the timber line to the center of the highway to get in the path of Mr. Treadway’s truck, didn’t he?
“A. Yeah; he hit it pretty hard back here (indicating) to make the grade, I guess.”

The driver of the truck of the individual defendants testified he brought the truck to a stop before driving onto Highway 146, and that the second truck was not in sight when he started forward onto Highway 146. He testified the motor died and the collision occurred. There is no evidence in this record to support a finding of proximate cause against the corporate defendant, and therefore no proof of a cause of action against this defendant. The use of the private road did not involve an inherently dangerous instrumentality so as to make the owner of the land liable for the acts of an independent contractor. Wilson v. Crutcher, Tex.Civ.App., 176 S.W. 625. The collision was not one which would have happened in the absence of negligence on the part of the employee of the independent contractor. The corporate defendant could not have foreseen that the employee of the individual defendants would drive out onto the highway without first stopping and looking, in spite of the existence of a muddy road, the incline and the bushes and undergrowth.

The order denying the Plea of Privilege of the individual defendants is affirmed.

The order denying the Plea of Privilege of Kirby Lumber Corporation is reversed and this portion of the case is ordered transferred to Harris County.


author: HIGHTOWER, Chief Justice.

text:
      Emma VASSAR et vir, Appellants, v. The STATE of Texas, Appellee.
    No. 6641.
    Court of Civil Appeals of Texas. Beaumont.
    June 11, 1964.
    .Rehearing Denied Sept. 16, 1964.
    Houston Thompson, Silsbee, for appellants.
    Waggoner Carr, Atty. Gen., Austin, for appellee.
   HIGHTOWER, Chief Justice.

Highway condemnation case. The commissioners award of $3,559.00 was withdrawn from the registry of the court by appellants prior to trial de novo.

On appeal by State to County Court at Law the lowest value placed upon the property taken, by State’s only witness, was $1,570.00. The highest by appellants’ only witness was $3,246.00. The jury found the value of the land taken to be only $1,298.40. The court accordingly entered judgment in favor of State for $2,260.60, such sum being the difference between the award withdrawn by appellants and the jury finding. The question of damages to the remainder is not before us.

Appellants challenge the sufficiency of the evidence to support the verdict, say there is no evidence to support the same, and urge that the same is against the overwhelming weight and preponderance of the evidence, all because the finding of the jury as to the value of the land taken was less than the value testified to by any witness. These contentions are in substance a complaint as to the excessiveness of the judgment and they are not without merit. Houston Belt & Terminal Ry. Co. v. Lynch, 221 S.W. 959 (Tex.Com.App.1920). However, they do not require reversal and remand as urged by appellants.

We conclude the jury could have found the value of the land taken to be $1,570.00, the lowest value testified to, and therefore the judgment was excessive in the amount of $271.60. See reasoning of court in Houston Belt & Terminal Ry. Co. v. Lynch, 185 S.W. 362, at p. 365 (C.A.).

In the circumstances, it is our duty to order a remittitur by State in the sum of $271.60. Rule 440, Texas Rules of Civil Procedure; Carter v. Texarkana Bus Company, 156 Tex. 285, 295 S.W.2d 653 (1961) ; Houston Belt & Terminal Ry. Co. v. Lynch, 221 S.W. 959 (Tex.Com.App.1920).

Upon filing of remittitur herein within fifteen (15) days by State in the said sum of $271.60, the judgment of the trial court will be affirmed with costs of appeal in favor of appellant. Upon failure to file re-mittitur, judgment will be reversed and remanded.

Affirmed on condition of remittitur.


author: WERLEIN, Justice.

text:
    MARYLAND CASUALTY COMPANY, Appellant, v. Ennis KEMP, Appellee.
    No. 14326.
    Court of Civil Appeals of Texas. Houston.
    Sept. 17, 1964.
    Rehearing Denied Oct. 8, 1964.

      Butler, Binion, Rice & Cook, James E. Crowther, Tom Martin Davis, Jr., Houston, for appellant.
    Jim S. Phelps and W. W. Kilgarlin, Houston, for appellee.
   WERLEIN, Justice.

This suit was brought by appellee, Ennis Kemp, to recover workmen’s compensation benefits for an injury allegedly sustained by him while working for his employer, Southwest Steel Products Company. From the judgment of the court based on the jury finding of permanent partial incapacity, appellant appeals.

Appellant’s first nine Points assert in essence that the jury’s findings that good cause existed for appellee’s failure to give timely notice of his injury; that appellee’s belief that his injury was not incapacitating was good cause for not timely filing his claim for compensation; and that appellee had believed his injury had not been an incapacitating injury; are not supported by any evidence and are so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust.

Appellee testified in substance that he received his injury on or about March 20, 1961; that as a “tag man” is was his task to bind up and tag pieces of cut steel placed on a steel table; that in rushing around the table in order to get the overhead crane to pick up a bundle he had tied, he slipped on the wooden walk and fell against the table on his side, his back hitting the crossbars of the table; that his shoulder and back hit the table and he fell to the floor; that he felt his back pop, and after he got up, he felt pain in his back just below his belt line, but figured it was nothing too bad and that it would get all right and was nothing serious; that he continued to work although his back kind of hurt a little; and that he didn’t tell the bosses about his fall because he didn’t think it was serious enough, but the “boys” knew it.

He further testified that he continued to work until June, when he left the job because he had trouble with his stomach; that he then saw his family doctor, Dr. Brick-er, and shortly after entered the hospital because of his stomach; that his back continued to bother and hurt him a little, but he thought it was going to get all right, and for that reason he didn’t report it; that after seeing Dr. Thomas, to whom the case was referred, he was placed in the Community Hospital in Jacinto City in June for his stomach; that after he left the hospital and was going to Dr. Thomas for treatment of his stomach, his legs started bothering him; that when he told Dr. Thomas of a steady, dull aching running down both legs and his back hurting, Dr. Thomas told him that because his back was hurting it could cause his legs to hurt and that it could also come from arthritis; that Dr. Thomas put him back in the hospital in October, and had another doctor run on him what he thought was a disco-gram; that that’s when he knew that what happened to his back was serious; that that’s when he thought about filing a claim and consulting a lawyer; and that he didn’t go right to a lawyer when he got out of the hospital but stayed at home for a few days and then, after talking to some friends, employed a lawyer.

The evidence shows that in reports to appellee’s employer, made in August, September and October, Dr. Thomas repeatedly advised that his diagnosis of appellee’s condition was arthritis in both knee joints and labyrinthitis. It was not until the report of October 30, 1961 that the diagnosis was changed to “ruptured disc L. 4.” It is true, as asserted by appellant, that appellee testified that after his stomach got all right sometime in July or August, the only thing that kept him from working was his legs and back. He was asked:

“Q And this is what you knew was due to the fall on March 20, 1961, is that right?
“A That is the onliest thing because I knew it hurt me then. That’s the only thing I refer back to during that time because I knew it hurt me at that time.”

This testimony could be construed as meaning that appellee at the time of the trial referred back to his fall. Appellee also testified that he was told by Dr. Thomas that his condition could come from arthritis. Dr. Thomas testified that he felt he was “dealing with an arthritic problem” even after appellee complained of lower lumbar pain on July 26, 1961. It is clear that Dr. Thomas continued to diagnose the case as an arthritic problem until the disco-gram was made the latter part of October, 1961. From this, we think it may be inferred that appellee was told by the doctor and knew he was being treated for arthritis until the latter part of October, 1961, when the discogram was made. Then it was that appellee for the first time realized that his condition was serious and the result of his injury and that it was not merely an arthritic condition.

The following testimony given by appel-lee further explains why he did not give notice of his injury and file a claim before November 8, 1961:

“Q Well, you don’t consider back pain and leg pain severe enough to keep you from working in August is a little thing, do you?
“A Sir?
“Q You didn’t think that was a little thing when it was enough to keep you from working?
“A I didn’t think it then — I didn’t know what was the matter then, you see. There is a lot of times that you have pain that you can go along with for a long time and not think that they are as bad as they are until you find out — until you go to the doctor and then he tells you they are that bad. Then it looks like — I imagine they hurt worser then than ever because you know what is the matter with you. That’s the way .that happened to me, I just didn’t think anything about it. It didn’t really mean much until after I had this doctor to take the discogram.”

Appellant strenuously contends that ap-pellee has not shown good cause for failing to give notice and to file his claim within the statutory period which expired on or about September 20, 1961. The rule with respect to the matter of good cause is stated in the case of Hawkins v. Safety Casualty Co., 1948, 146 Tex. 381, 207 S.W.2d 370:

“The term ‘good cause’ for not filing a claim for compensation is not defined in the statute, but it has been uniformly held by the courts of this state that the test for its existence is that of ordinary prudence, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances. Consequently, whether he has used the degree of diligence required is ordinarily a question of fact to be determined by the jury or the trier of facts. It may be determined against the claimant as a matter of law only when the evidence, construed most favorably for the claimant, admits no other reasonable conclusion. Martin v. Travelers Ins. Co., Tex.Civ.App., 196 S.W.2d 544; Great American Indem. Co. v. Beaupre, Tex.Civ.App., 191 S.W.2d 883; LaCour v. Continental Casualty Co., Tex.Civ. App., 163 S.W.2d 676; Texas Indemnity Ins. Co. v. Cook, Tex.Civ.App., 87 S.W.2d 830, writ refused.
“The law is well settled that a bona fide belief of a claimant that his injuries are not serious but trivial is sufficient to constitute good cause for delay in filing a claim. It also has been held a number of times that the advise of a physician, upon whom a claimant relies, that injuries are not of a serious nature, but are temporary or trivial, is sufficient to justify a claimant’s delay until he learns, or by the use of reasonable diligence should have learned, that his injuries are serious.” [citing numerous Texas cases]

Although Dr. Thomas testified that as early as July he felt appellee possibly had a disc when appellee began to complain of lower lumbar pain, and that “I began to say right there that this was a possibility,” there is nothing in the record to show that Dr. Thomas so informed appellee or that appellee had any knowledge of the possibility of a disc until after the discogram was made. His back hurt a little from the time of the fall but what little recurrent pain he had was apparently not severe enough to cause him to realize that such condition was anything more than temporary and trivial, especially in view of his doctor’s incorrect diagnosis and reports. Texas Employers Insurance Ass’n v. Brown, Tex. Civ.App., 309 S.W.2d 295, writ ref., n. r. e.

In determining whether or not appellee used the degree of diligence that an ordinarily prudent person would have used under the same or similar circumstances, it is of course necessary to consider the attendant circumstances. In this case we have a man who was laid up for some weeks with a sprained back in 1957. He made a good recovery and continued to work for years for the same employer. On March 20, 1961, while engaged in work he fell, striking his shoulder and back against a part of a table. He had had other falls with no bad results. In June, 1961, he had to quit work because of stomach trouble. He was treated for stomach trouble and received group insurance payments as a result of the incapacity resulting from his stomach condition. His fall on March 20, 1961 gave him a little back pain but not enough to interfere with his work. He considered it of no importance and a mere trivial condition which was not serious and would get well. There is no evidence that he hurt his legs in the fall, and yet after his stomach trouble subsided it was his legs that first gave him trouble. At the trial he testified that his legs and his back incapacitated him. His condition had been diagnosed as arthritis in both knees. On July 26, 1961, when he first complained to Dr. Thomas of his lower back as well as well as his legs, he was informed it could be arthritis. It was not until after his second confinement in the hospital and after a discogram had been taken late in October, that his doctor changed his diagnosis to a ruptured disc and so informed appellee. It was a mere matter of a few days after this when appellee employed a lawyer and filed his claim.

Under all the facts and circumstances of this case, we cannot hold as a matter of law that appellee did not prosecute his claim with the degree of diligence that an ordinarily prudent person would have exercised under the same or similar conditions. It is true that there are some controverting facts. It is our duty, however, to consider the evidence and the inferences properly to be drawn therefrom in the light most favorable to the verdict and judgment of the court, and to accept as. true that testimony which tends to support the verdict. 4 Tex.Jur.2d, p. 326, § 804, and cases cited. An issue of fact is raised “if, discarding all adverse evidence, and giving' credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts, proved, a jury might have found in favor of the plaintiff.” Wininger v. Ft. Worth & D. C. R. Co., 105 Tex. 56, 143 S.W. 1150.

We have examined the cases cited by appellant and find that they are factually distinguishable from the instant case. Furthermore, we have carefully examined the entire record and have concluded that we cannot say that any of the jury’s findings with respect to notice and claim, good cause, and appellee’s belief that his injury was not incapacitating, are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

We have also concluded from a careful reading of the statement of facts that there is ample evidence to support the jury’s finding that appellee sustained permanent partial incapacity due to his accidental injury of March 20, 1961, and that his injury was sustained while in the course of his employment by Southwest Steel Products Company. Considering all of the evidence, we cannot say that the findings of the jury to such effect are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660.


author: BATEMAN, Justice.

text:
    R. L. LANE et al., Appellants, v. SECURITY TITLE & TRUST COMPANY et al., Appellees.
    No. 16338.
    Court of Civil Appeals of Texas. Dallas.
    July 24, 1964.
    Rehearing Denied Sept. 25, 1964.

      Wynne, Jaffe & Tinsley, Yandell Rogers, Jr., Daugherty, Bruner, Kelsoe & Lastelick, G. H. Kelsoe, Jr., Dallas, for appellants.
    Biggers, Baker, Lloyd & Carver, Ralph D. Baker, and Clifford S. Dillard, Dallas, for appellees.
   BATEMAN, Justice.

Our former opinions are withdrawn and the following substituted therefor.

This suit was filed by R. L. Lane, S. E. Case and Morris I. Jaffe against W. B. Post, doing business as Security Title Company, and Security Title & Trust Company of San Antonio, Texas, a corporation, for actual damages alleged to have been suffered because two outstanding liens were not shown on certain Mortgagee’s Title Policy Binders, and for exemplary damages because the representations made in said Binders, as well as in certain telephone conversations, as to the absence of the two outstanding liens, were made willfully and with knowledge of their falsity. After jury verdict on special issues the court rendered judgment for the plaintiffs against the defendants, jointly and severally, for actual damages of $14,938.65, the amount of the two outstanding liens, and against Post for exemplary damages of $5,000. The jury had awarded $25,000 in exemplary damages against Security Title & Trust Company, but the court disregarded this finding in rendering judgment. All parties have appealed and to avoid confusion will be herein called by their proper names, except that the corporate defendant Security Title & Trust Company will be called Security. Lane, Case and Jaffe expressly limit the scope of their appeal to that portion of the judgment which decreed that they take nothing on their prayer for exemplary damages against Security.

Facts

George C. Rorie, Jr., owner of certain lots in the City of Dallas, entered into a contract with Perry Greenspan, Jr. by which the latter agreed to construct certain apartment buildings thereon. Lane, Case and Jaffe undertook to arrange for the interim financing through the First National Bank in Dallas. Jaffe ordered from Post, the local representative of Security, a Mortgagee’s Title Policy Binder on Interim Construction Loan. Jaffe is shown thereon as lender or mortgagee, and the instrument recites: “For the purpose of issuance of the Mortgagee’s Title Policy herein referred to the Company certifies that a good and indefeasible title to the land described in Schedule A hereof, was on the 9th day of April, A.D., 1959 at 9:00 o’clock A.M., vested in George C. Rorie, Jr. SUBJECT ONLY to the defects, objections, liens and encumbrances shown in Schedule B hereof, and the lien described in Item 1, Schedule A, hereof.” The lien described in Item 1 of Schedule A is a mechanic’s lien note in the sum of $285,000 executed by Rorie payable to the order of Greenspan dated April 8, 1959, recited to have been transferred to Jaffe by assignment dated April 8, 1959. No other liens were shown in Schedule B or elsewhere in the instrument.

The binder also provides that upon certain contingencies and payment of the applicable premium therefor, the company will issue its Mortgagee’s Policy of Title Insurance in the face amount ($285,000) covering the lien described in Schedule A, “showing under Schedule B thereof only such exceptions as appear in Section Two of Schedule B hereof, * * It was further provided: “This Binder is preliminary to the issuance of the Mortgagee’s Policy of Title Insurance referred to above and in no event shall it be effective after one year from the aforesaid date. * * * "

Later Jaffe informed Post that the First National Bank in Dallas insisted that the binder be issued in its name. At Jaffe’s request Post, as issuing agent of Security, issued another such binder, similar in all respects to the one described above except that (1) it was addressed to First National Bank in Dallas instead of Jaffe; (2) the effective date was July 17, 1959; (3) the space for the owner’s name was left blank; and (4) the lien described in Schedule A was a deed of trust dated July 10, 1959 executed by George C. Rorie, Jr. to John Kipp, Trustee, to secure a $285,000 note executed by Rorie and payable to the order of Jaffe as trustee, recited to have been transferred to the First National Bank in Dallas.

At the time these binders were issued Post and one Frederick were partners doing business as Security Title Company and were issuing agents for Security. The printed forms for these binders as well as for policies of title insurance were furnished by Security to Post and Frederick, who were authorized to issue them in any amount. They were not shown to be authorized to perform any other act on behalf of Security. Frederick issued the first binder and Post issued the second one. Jaffe testified that he talked to Post on the telephone shortly before each binder was issued, and on each occasion he told Post that he wanted to make certain that the land was free and clear of any debts because otherwise he could not get the interim financing at the bank. In the second conversation he told Post that he, Lane and Case would endorse the paper to the bank, that they could not get the financing otherwise and could not afford to arrange for interim financing unless they knew that there was not another lien on the property. He and his associates relied on Post’s representations over telephone, as well as those contained in the two binders, as to the absence of other liens on the land. Post denied he had told Jaffe over telephone that there were no liens on the property. Frederick and Post dissolved their partnership in the spring of 1960, Frederick leaving the country and Post continuing to operate the business alone.

Notwithstanding Post’s assurances to the contrary, there were two liens on a substantial portion of the property. One secured a note payable to D. B. Blaine dated March 3, 1959, in the sum of $5,000. Post was the trustee named in the deed of trust. The other lien secured a note for $9,300 dated April 8, 1959 (the day before the issuance of the first binder), held by the South Oak Cliff Bank. Both of these notes and deeds of trust were signed by Rorie after having been prepared by either Frederick or Post. Post testified that he did not know of the Blaine $5,000 lien at the time the first binder was issued, or even of the issuance of the first binder at that time, but that he did know about it and the existence of both liens when he issued the second binder.

Greenspan did not complete his contract, and Jaffe, Lane and Case were compelled to complete it Jaffe learned of the two outstanding liens in January 1960, and in May 1960 the insurance company making the permanent loan insisted upon the note being signed by Jaffe, Lane and Case and that they be at least part owners of the property, after which Rorie deeded an undivided one-fourth interest each to Jaffe, Lane and Case, reserving an undivided one-fourth interest to himself. Jaffe called upon Post and Security to discharge the two outstanding liens and obtain releases thereof, which demand was refused; and Jaffe testified that it then became necessary for these two liens to be paid out of the proceeds of the permanent loan. They later sold the property at a loss.

The closing of the permanent loan and the sale of the property were handled through another title company at the insistence of the insurance company making the permanent loan. In the meantime Post had purchased the $9,300 note from the South Oak Cliff Bank and obtained control of the Blaine note. His reason for doing so, he said was to enable him to subordinate those two liens to the lien of the First National Bank in Dallas and thus protect that bank. He didn’t tell Security about the problem until February of 1960 because he thought Rorie and Greenspan would pay them. When he learned that the permanent loan was being closed through another title company, he notified that company of the two liens and insisted upon and received payment thereof.

The jury found, in answer to special issues, that Post represented to Jaffe that the property was free and clear of all Hens, that this representation was false, that Jaffe and his associates relied upon the representation, and that they paid off the two existing liens. The jury also found that the representation was made willfully, and awarded exemplary damages of $5,000' against Post and $25,000 exemplary damages as against Security.

Opinion as to Liability of W. B. Post

By his first and second points of error, Post contends that the court erred in overruling his motion for instructed verdict since his only obligation under the title binder was to issue a mortgagee’s title policy according to the terms of the binder, and there was no evidence that he had refused to do so. These points are without merit and are overruled. The plaintiffs did not sue on either of the binders as a contract but in tort on the theory that the false representations contained in the binders, as well as in a telephone conversation, constituted a fraud which resulted in: damage-to them. The record before us indicates-clearly that Jaffe made the position of himself and his associates abundantly clear to’ Post, and that Post, with full knowledge of that position, issued the second binder (his partner having previously issued the first) containing the false statement concerning liens. Under the peculiar facts and circumstances of this case, we hold that Jaffe, Lane and Case alleged and proved a cause of action against Post for their actual damages. Chicago, R. I. & G. Ry. Co. v. Duncan, Tex.Civ.App., 273 S.W. 908, err. ref.

By his third and fourth points of error Post contends that Jaffe, Lane and Case, having paid the outstanding liens, thus precluding Post from pursuing his remedies against Rorie, are estopped to recover such sums in 'this case and have waived their right to do so. These points must likewise be overruled. The liens having been paid at the insistence of Post, he is in no position to say now that he was thereby deprived of the right and opportunity to collect these debts from the man who really owed them. Jaffe, Lane and Case are not estopped from claiming their damages because, to protect their equity, they paid debts which Post was demanding be paid. Also, no special issues were requested on these defenses of estoppel and waiver, and they were therefore waived. Rule 279, Vernon’s Texas Rules of Civil Procedure; Newton v. Town of Highland Park, Tex.Civ.App., 282 S.W.2d 266, 276, err. ref. n. r. e.

By his fifth point of error Post complains of the overruling of his motion for judgment non obstante veredicto because no issue of damages was submitted to the jury. Issues were submitted as to whether Jaffe, Lane and Case paid the debts secured by the two outstanding liens, and both were answered “Yes”. This established the damages alleged and concerning which evidence was introduced. Chicago, R. I. & G. Ry. Co. v. Duncan, Tex.Civ.App., 273 S.W. 908, err. ref.; Fordtran v. Cunningham, Tex.Civ.App., 177 S.W. 212, err. ref. The fifth point is overruled.

Post’s sixth and seventh points of error complain of the judgment against him for exemplary damages; first, because the definition of the term “exemplary damages” in the charge was erroneous, and second, because “the evidence did not support such issues or judgment.” These points are without merit and are overruled. The definition was:

“EXEMPLARY DAMAGES * * means an amount which you may in your discretion award in addition to actual damages as a matter of punishment and as an example to others, and although such exemplary damages should not include any amount otherwise found by you as actual damages, same may include reasonable compensation for inconvenience.”

Post’s objection thereto was that it did not include the instruction that the acts complained of must be unlawful and partake of a wanton and malicious nature. This objection was properly overruled because the plaintiffs were under no such burden. Special Issue 9, inquiring as to exemplary damages against Post, was conditioned upon an affirmative answer to No. 8, which inquired as to whether the false representation was made “willfully,” which term was defined as “the intentional and purposeful disregard of the known rights of another.” There was no objection to this definition.^ The affirmative answer to Special Issue 8 was equivalent to a finding of such evil intent as to make the representation wanton or malicious. Connor v. Sewell, 90 Tex. 275, 38 S.W. 35; 17 Tex.Jur.2d, Damages, p. 245, § 178.

Post admitted that he knew of the outstanding liens when he issued the second binder certifying that, there were no' such liens. There was evidence that he had been told that Jaffe, Lane and Case were having to obligate themselves personally to the bank and that they could not afford to do so if other liens were on the property. The jury had a right to believe from the evidence that Post’s action was in “intentional and purposeful disregard of the known rights” of Jaffe, Lane and Case. This is another way of saying that the evidence was sufficient to support the finding of willfulness and the award of exemplary damages.

Post also complains that he was precluded from showing his reasons for doing what he did by the court’s statement from the bench that certain proffered testimony was immaterial and inadmissible because it would bear only on exemplary damages and the court did not consider that the issue of exemplary damages was in the case. However, Post made no effort to complete his bill of exceptions, leaving us to wonder what the testimony would have been. Rules 372, 418(c), T.R.C.P. Moreover, the record indicates that Post made no effort to reopen the testimony when the court decided to submit issues on exemplary damages. Therefore, whatever rights he may have had in this respect were waived.

Finding no error requiring reversal of the judgment against Post, we affirm the same.

Opinion as to Liability of Security

We have concluded that the trial court was correct in rendering judgment against Security for the actual damages and in refusing to render judgment against it for exemplary damages.

It appearing from undisputed evidence that Post was a local agent of Security and that his complained of acts were done within the scope of his employment and authority as such agent, Security is bound thereby and liable for the actual damages proximately resulting therefrom. Restatement of the Law of Agency, §§ 257, 258; 3 Am.Jur.2d, Agency, p. 628, § 264; Amarillo Nat. Life Ins. Co. v. Brown, Tex. Civ.App., 166 S.W. 658, 663, err. ref.; Mutual Reserve Life Ins. Co. v. Seidel, 52 Tex. Civ.App. 278, 113 S.W. 945, no wr. hist. Couch on Insurance 2d, §§ 26:437, 26:438.

Security contends, by its first, second, third, sixth, seventh, eighth, tenth and eleventh points of error, that its rights, duties and obligations are to be measured by the provisions of the title binders in question; that the second title binder, which replaced the first, was a contract between it and First National Bank in Dallas, to which contract the plaintiffs were not parties; that the binders by their terms ceased to be effective when the transaction was not closed within the time specified; that since it in no way breached its contract its motions for instructed verdict, for judgment on the verdict and for judgment n. o. v. should have been granted; and that it was error to'permit plaintiffs to show by parol evidence that the second binder was issued for their benefit. All of these points are based upon the erroneous premise that this was a. suit on the binder as a contract, whereas it clearly appears from the record that the suit is in tort for damages for fraudulent misrepresentations. See Chicago, R. I. & G. Ry. Co. v. Duncan, Tex.Civ.App., 273 S.W-908, err. ref. Under the peculiar facts o£ this case, we hold that Lane, Case and Jaffe alleged and proved a cause of action ex delicto against both Post and Security for their actual damages, and the said points of error are overruled.

Security’s fourth point of error, that the court erred in overruling its objection to the court’s charge, on the ground that Post was prevented from issuing the title policy by acts of the plaintiffs, is also based upon the theory that this is a suit on contract. Moreover, we do not find in the record that any such objection was actually made. For both reasons the point is overruled.

Security’s fifth point complains of the overruling of its exception to a certain paragraph of the petition because the petition ignored the fact that the plaintiffs, who were conducting a joint enterprise with Rorie, had full opportunity to collect from Rorie the damages sustained. This point, not being briefed, is waived. Rule 418(c), T.R.C.P.; Gass v. Baggerly, Tex.Civ.App., 332 S.W.2d 426, no wr. hist. Moreover, the special exception was properly overruled. The facts alleged to have been “ignored” were not a part of the cause of action being pleaded and were at most an affirmative defense. A plaintiff is not required to take cognizance of and negative every defense which the defendant may or may not see fit to raise.

By its ninth point Security complains of the court’s order overruling its motion to disregard jury findings that the plaintiffs relied on the misrepresentations in paying the two liens on the property. It is obvious, we think, from what we have said above that these findings, being material and supported by plaintiffs’ pleadings and by the evidence, could not properly have been disregarded. The point is accordingly overruled.

Security also moved to disregard the jury finding of $25,000 exemplary damages against it. As this motion was sustained, we turn now to the limited scope appeal of Lane, Case and Jaffe. Relying on King v. McGuff, 149 Tex. 432, 234 S.W.2d 403, they contend under their first point of error that since Post was acting in a managerial capacity for Security in mating the fraudulent misrepresentations, Security is liable for the exemplary damages found by the jury.

We do not agree with the premise that Post was acting in a managerial capacity for Security. He and Frederick operated their own business as partners under an assumed name. They were employed only as issuing agents by Security, with authority only to issue title policies and binders on printed forms furnished to them by Security and bearing the signatures of its president and secretary and its corporate seal. If they had been managers of Security’s offices in Dallas, instead of their own,'they doubtless would have had authority to obligate Security for overhead expenses, such as the wages of clerical employees, rent, utilities, etc., but no such authority was ■shown. In fact, Post and his partner were not shown to have authority to do anything for Security except to countersign and deliver the binders and policies. There is no pleading, proof or finding that Post or his partnership constituted a department or division of Security, or that Security specifically authorized or ratified the actions complained of herein.

We hold that under these circumstances there is no liability on Security for exemplary damages and that the trial court properly disregarded the jury award of punitive ■damages as against it. King v. McGuff, 149 Tex. 432, 234 S.W.2d 403; 17 Tex.Jur. 2d, Damages, pp. 250-1, § 183; Mutual Life Ins. Co. v. Hargus, Tex.Civ.App., 99 S.W. 580, no wr. hist. Accordingly the first point asserted by Lane, Case and Jaffe is overruled.

Their second point, urged alternatively, is that the court erred in refusing to submit to the jury the question of whether Post acted as agent and manager for Security without supervision and control. In our opinion there is no evidence in the record to support such an issue. Moreover, as worded, it was an immaterial issue. The second point is also overruled.

Finding no error sufficient to require reversal, we affirm the judgment.

Affirmed.


author: PARKER, Justice.

text:
    Roberta MARTIN, Appellant, v. James A. EBARB and James V. Reed, Appellees.
    No. 6620.
    Court of Civil Appeals of Texas. Beaumont.
    June 25, 1964.
    Rehearing Denied Sept. 16, 1964.

      Bill A. Martin, Newton, Arthur Mitchell, Austin, for appellant.
    Glenn Faver, Jasper, for appellees.
   PARKER, Justice.

This is a trespass to try title suit and suit for ownership and possession of cattle tried before a jury. Plaintiffs were James A. Ebarb and James V. Reed, appellees here. The defendant was Roberta Martin, appellant here. James A. Ebarb sued Roberta Martin in trespass to try title for 104 acres of land. It was stipulated that James V. Reed was the common source of title to such land. James A. Ebarb also sued Roberta Martin for the ownership and possession of cattle purchased by him from James V. Reed. Roberta Martin answered by general denial, plea of not guilty and the 10 year statute of limitation. By way of cross action, Roberta Martin sued for the 104 acre tract in trespass to try title, pleading the 10 year statute of limitation, and specially pleading her title to the 104 acres as being under James V. Reed by parol gift from him in the month of March, 1940, by virtue of which gift she took possession of the land with the full knowledge and consent of James V. Reed, erecting permanent and valuable improvements of a substantial nature thereon in reliance upon such gift, with the consent and knowledge of the donor. Roberta Martin further alleged that Reed gave her the land and thereafter asserted in the community that she did own the land; that she, Roberta Martin, improved and lived upon the property relying upon the statements of Reed and, in effect, pleads fraud on his part estopping him from asserting any claim to said land.

The jury found in answer to Special Issues 3, 4 and S as follows:

“Issue No. 3
“Do you find from a preponderance of the evidence that James V. Reed made a parol gift of his right, title and interest in the land in question, to Roberta Martin, in the month of March, 1940?
“Answer: Yes.
“Issue No. 4
“If you have answered issue No. 3 “Yes’, and only in that event, then answer this issue:
Do you find from a preponderance of the evidence that Roberta Martin, relying upon said gift, shortly thereafter entered into possession of said property ?
“Answer: Yes.
“Issue No. 5
“If you have answered issue No. 3 ‘Yes’, and only in that event, then answer this issue:
Do you find from a preponderance of the evidence that Roberta Martin, relying upon said gift, did make permanent and valuable improvements on said property, with the knowledge and consent of James V. Reed?
“Answer: No.”

On such jury verdict, judgment was properly entered that James A. Ebarb recover of and from the defendant Roberta Martin the 104 acres sued for, it appearing from the evidence that Ebarb was conveyed such 104 acres by James V. Reed by deed dated September 14, 1960, subject to a vendor’s lien retained therein. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, IS A.L.R. 216.

Appellant urges in its Point 2 that the trial court erred in refusing to set aside the answer by the jury to Special Issue No. 5, saying all the evidence is to the contrary. Appellant correctly states:

“Under the decisions the requirements essential to remove a parol gift of land from the statute of frauds and render it enforceable in a court of equity now appear to be well settled. They are: (1) A gift in praesenti; (2) possession delivered by the donor at the time of the gift; and (3) substantial permanent improvements placed on the property by the donee, in reliance upon the gift, with the knowledge or consent of the donor; or, without such improvements, the existence of such facts as would make it a fraud upon the donee not to enforce the gift.”

The first two elements of a parol gift the jury found in favor of appellant. Then the jury found that there were no substantial permanent improvements placed on the property by the donee. No Special Issue was requested by appellant upon the question of whether or not facts existed that would make it a fraud on the appellant not to enforce the gift on the part of Reed, appellant thereby waiving such issue. Improvements were placed on said 104 acres after 1940. Many witnesses testified such improvements were made by James V. Reed, not by Roberta Martin. Such evidence amply supports the answer of the jury to Special Issue No. 5. Appellant’s Point 2 is overruled.

As to the cattle, the jury found in answer to Special Issues 1 and 2 as follows:

“Issue No. 1
“Do you find from a preponderance of the evidence that James V. Reed sold the thirty-five head of cattle involved in this lawsuit to James A. Ebarb and wife as evidenced by a bill of sale on September 14, 1960?
“Answer: Yes.
“Issue No. 2
“If you have answered the above and foregoing Special Issue No. 1 ‘Yes’, and only in that event, then answer the following question:
“Do you find from a preponderance of the evidence that at the time James V. Reed made the sale of said cattle to James A. Ebarb on or about September 14, 1960, that he, James V. Reed, was the sole or exclusive owner of said cattle?
“Answer: No.”

Upon motion duly filed, the court found “there are no pleadings and evidence to support the findings of the jury in response to Issue No. 2, and, therefore, said issue and finding thereto should be, and is, in all things disregarded and, therefore, plaintiff James A. Ebarb is entitled to recovery of * * * cattle involved in the controversy * * * subject to the bill of sale of said cattle bearing date of September 14, 1960, from James V. Reed to James A. Ebarb and wife.” By the judgment, James A. Ebarb recovered of and from the defendant Roberta Martin “35 head of common cattle.”

Appellant’s Point 1 is that the trial court erred in its holding that the answer to Special Issue No. 2 should be set aside and held for naught as having no support in the pleadings or evidence. Appellant contends judgment should have been entered for her as to the cattle.

Since appellee Ebarb sued for the cattle and appellant’s answer contained a general denial, there were pleadings supporting the answer of the jury to Special Issue No. 2. Appellee Reed admitted that in 1959 he gave Roberta Martin half of the cattle but it is uncertain whether he gave her one-half of the increase of the cattle or one-half of all the cattle. On a subsequent sale of some of the cattle, they divided the proceeds between themselves. The controversy about the cattle does not affect and is severable from the controversy about the 104 acres of land.

That part of the judgment in which James A. Ebarb recovers from Roberta Martin the title to and possession of the 104 acre tract of land, more or less, is affirmed.

The proportionate ownership of the cattle in controversy as between appellant and appellees is so uncertain that justice to the rights of all parties requires reversal and remanding for new trial that portion of the judgment only in favor of James A. Ebarb against Roberta Martin for the recovery of all the cattle in controversy, and this court so does.