author: MOORE, Justice.

text:
    Howard B. VAUGHN et al., Appellants, v. ATLANTIC INSURANCE COMPANY, a Corporation, Appellee.
    No. 177.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 9, 1965.
    Rehearing Denied Jan. 6, 1966.
    James N. Phenix, Phenix, Keeling & Wilder, Henderson, for appellants.
    Royal H. Brin, Jr., Strasburger, Price, Kelton, Miller & Martin, Dallas, for ap-pellee.
   MOORE, Justice.

Appellee, Atlantic Insurance Company, issued appellant, Howard B. Vaughn, a policy of insurance upon each of the two automobiles owned by him. Among other coverage, the policies provided for medical and hospital expense in the amount of $1,000.00 on each person injured in accordance with the terms of the policies. One of the policies covered a Ford automobile and the other covered a Chevrolet automobile.

While Vaughn, his wife and daughter, were driving the Ford automobile in the State of Arkansas, they were involved in a head-on collision in which Mrs. Vaughn was killed and appellant and his daughter were seriously injured. The Chevrolet automobile was not involved in the accident but remained at the home of the appellant in Gregg County, Texas.

Appellee admitted liability on the medical coverage provision of the policy covering the Ford automobile and paid the full $1,-000.00 coverage on appellant as well as his wife and daughter.

Appellant now contends that he is also entitled to the medical payment coverage as provided in the policy covering the Chevrolet automobile.

The basis of his claim is to be found in Part II of the policy covering the Chevrolet, which reads as follows:

“Part II
“Coverage C Medical Payments.
“To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:
“Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ caused by accident, while occupying or through being struck by an automobile.” (Emphasis ours.)

Appellant contends that he and his family were also covered by the medical payments provision in the policy on the Chevrolet because the insurance company contracted to pay if the loss was caused by being “struck by another automobile” and since another automobile struck the Ford occupied by him and his family, he is entitled to recover on the policy on the Chevrolet.

The policy sued upon, that on the Chevrolet, expressly excluded any recovery under its medical payments provision for bodily injury “sustained by the named insured or a relative (1) while occupying an automobile owned by or furnished for the regular use of either the named insured or any relative, other than an automobile defined as an ‘owned automobile.’ ”

The policy defines the term “owned automobile” as being “a private passenger, farm or utility automobile described in the policy” (emphasis supplied) and under certain circumstances, a newly acquired automobile. There is no contention that the Ford was a newly acquired automobile, nor that the Ford automobile was described in the policy covering the Chevrolet.

Appellee filed a motion for summary judgment based upon this exclusion and appellants likewise filed a motion for summary judgment. After due hearing and consideration of the arguments and trial briefs of both sides, the District Court granted ap-pellee’s motion for summary judgment and denied that of appellants, from which appellants perfected their appeal.

The facts are not in dispute and it is not contended that the terms and provisions of the policy are ambiguous. The case will therefore turn upon the legal effect to be accorded the language used in the policy.

The basis of appellant’s contention is that the coverage provided for in Part II above provides two separate and distinct coverages, i. e. (1) for injuries sustained while occupying the automobile, and (2) for being struck by another automobile. The exclusion, he argues, which excludes the loss for injuries sustained by occupying another owned automobile, would only include injuries received in what is generally known as a “one-car wreck,” such as a collision with a stationary object or overturning. Since the exclusion did not mention or specifically exclude coverage through “being struck by another automobile,” he reasons that the exclusion would have no application to the additional gground of recovery for injuries sustained as the result of being struck by another automobile despite the fact that he and his family were then occupying another automobile owned by him.

The general rule is that a policy of insurance must be construed most favorably to the insured, but this rule applies only when there is a real ambiguity in the language of the policy. If the words used in a policy are plain and unambiguous, it is the duty of the court to give effect to such language in accordance to its plain, ordinary meaning, and not make a new contract for the parties by arbitrary judicial construction. 32 Tex.Jur.2d, pars. 54 and 60.

The California case of Security Trust & Savings Bank of San Diego v. New York Indemnity Company, 220 Cal. 372, 31 P.2d 365, declares that:

“ * * * The very purpose of exception or limitation clauses is to exclude risks otherwise covered by general coverage clauses. It is of their nature to conflict with general clauses, in that they constitute restrictions on the latter. An insurance contract, like any other contract, should be construed as an entirety, the intention being gathered from the whole instrument. * * ”

The exclusionary clause here under consideration simply excludes any medical coverage to the insured or members of his family which were sustained while occupying another owned automobile other than an automobile described within the policy. It is without dispute that the Ford automobile involved in the accident in which appellant and his family were injured was owned by the appellant, and it was not covered as an “owned automobile” in the Chevrolet policy because it was not described therein and no premiums were paid thereon.

The language used in the exclusion must be taken in its ordinary and usual sense, and must be given such interpretation as was probably in the contemplation of the parties when the policy was issued. As we construe the exclusion it seems to be clearly and definitely stated that the insured would have no protection against loss for medical payments if the injury occurred while appellant or the other members of his family were occupying another automobile owned by the insured, irrespective of whether the loss was occasioned by a “one-car wreck” or was a result of being struck by another automobile.

The purpose of such exclusion provision was pointed out by the court in Lumbermens Mut. Casualty Co. v. Pulsifer (1941, D.C.Me.), 41 F.Supp. 249, as follows:

“The exclusion from coverage of other cars owned by the insured, as well as cars owned by members of his household, and the exclusion of cars ‘hired for regular use,’ as well as the language as a whole, would seem to indicate the intention of the Company to protect itself from a situation where an insured could pay for one policy and be covered by the insurance in driving any car that he decided to use, whether owned by him or members of his family or rented. In other words, cars under his control that he could use at will and might use often. Without some such exclusion it is obvious that the Company might lose premiums and also that the hazard under the insurance would be increased. That to avoid such results was apparently the idea of the agents of the Company in writing this clause is admitted by its counsel.” 173 A.L.R. 901.

We are not in agreement with the argument that the exclusion clause failed to exclude the coverage “being struck” by an automobile. It is apparent to us that Paragraph b (of the exclusions) by its terms deprives the plaintiff of any right to recover under the policy. It is the duty of the court to construe that which is definite and certain in the contract provision; and there is no room for interpretation here. We think the language of the policy covering the Chevrolet is clearly subject to the construction that there is no liability for a loss sustained by the insured or any member of his family while occupying another automobile owned by the insured. This seems to be the interpretation universally applied and followed by most courts. Lonsdale v. Union Insurance Company, 167 Neb. 56, 91 N.W.2d 245 (S.Ct.Neb.); McMillan v. State Farm Insurance Company, 211 Cal.App.2d 58, 27 Cal.Rptr. 125; Collins v. Farmers Insurance Exchange, 51 Ill.App.2d 92, 200 N.E.2d 60; Mallinger v. State Farm Mutual Automobile Insurance Company, 253 Iowa 222, 111 N.W.2d 647.

In support of their contention, appellants cite Hale v. Allstate Insurance Company, 162 Tex. 65, 344 S.W.2d 430, and Southwestern Fire And Casualty Company v. Atkins, Tex.Civ.App., 346 S.W.2d 892. The facts involved in each of these cases are materially different from those involved here and for that reason are not thought to be in point.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    Napoleon BLACK et al., Appellants, v. SHELL OIL COMPANY et al., Appellees.
    No. 7669.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 23, 1965.
    Rehearing Denied Dec. 14, 1965.

      Paul Branch, Kilgore, Buck Florence, Hughes Springs, J. M. Lasater, Naples, Wesson Bartlett, Linden, Elmer Patman, Austin, T. R. Hudspeth, Tulsa, Okl., for appellants.
    George K. Gilbert, Bartlesville, Okl., R. S. Sutton, Amarillo, Joe W. Lovelace, Linden, P. B. Walker, Houston, W. Ernest West, Canton, Austin C. Hatch ell, Long-view, John B. Spiers, Norman, Rounsaville, Hassell & Spiers, Jacksonville, Thomas Y. Banks, Tyler, Charles E. Thompson, Tom N. Cope, Atlanta, L. F. Burke, Longview, Tom Steele, Linden, Howard Carney, Carney & Mays, Atlanta, C. E. Nadeau, E. E. Shouse, Houston, for appellees.
   FANNING, Justice.

This suit was brought by Shell Oil Company and Cities Service Oil Company against Napoleon Black and other named heirs of Hugh Black, Albert Leo Lee and other named heirs and successors of Janie (Jannie) Robinson Lee, Sinclair Oil Company, Mrs. G. T. Bartlett, a widow, Wesson Bartlett, Elmer Patman, and numerous other parties claiming various mineral and royalty interests in a tract of land in Cass County, Texas, called to contain 100 acres, but by survey having been determined to contain 93.99 acres.

Shell and Cities Service brought the suit in the nature of an action for a judgment declaring the oil and gas royalty, mineral and leasehold ownership of the subject land, and the ownership of production attributable to that part of the subject land included in a gas unit.

Except for an undivided leasehold interest owned by Sinclair with Shell in one lease, Shell and Cities Service jointly hold or own leases from other defendants in the suit. The leasehold interests are subject to certain overriding royalties as are stated in the judgment.

Trial was to the court without the aid of a jury. The trial court found that Napoleon Black and the other heirs of Hugh Black did not have adverse possession or title by limitations as against Janie Robinson Lee or her heirs or successors in title. The trial court found that a certain mineral deed dated March 31, 1937, from Janie Lee and husband to G. T. Bartlett and Elmer Patman conveyed °f Janie Lee’s interest (or 14th of all) in the oil, gas and minerals in the land in controversy. These two rulings are the matters primarily involved on the appeal of this cause. The trial court in said judgment adjudicated the title to the surface, leasehold and royalty interests, including overriding royalty interests, and also allowed certain recoveries on certain warranties of title as shown by the judgment.

This appeal consists of two main controversies :

(1) Controversy 1 exists between the successors of Hugh Black, who claim all of the land (subject to various oil and gas leases) as against the successors of Angelina Robinson Black, his alleged wife, who claim an ownership of a total undivided Y2 interest in the land, on the basis that said land was the community property of Hugh Black and Angelina Robinson Black. The effect of the judgment of the trial court is that the successors of Hugh Black acquired an undivided Yi interest in the land, and that the successors of Angelina Robinson Black acquired an undivided Yz interest therein.

(2) Controversy 2 exists between parties claiming solely through the Angelina Robinson Black chain of title, which controversy is primarily with regard to the construction to be placed on a 1937 mineral deed from Janie (Robinson) Lee (sometimes spelled “Jannie”), the sole heir of Angelina Robinson Black, joined by her husband, Charlie Lee, Grantors, to G. T. Bartlett and Elmer Patman, Grantees. The successors of the grantee, G. T. Bartlett (including Sinclair) and Elmer Patman, the other grantee, and his successors in title, claim that all of the former undivided Yz mineral interest of Angelina Robinson Black, inherited by Janie Lee, was conveyed by said mineral deed; but the Lee-Moore et al. defendants-appellees, heirs and successors of Janie Lee, claim that an undivided 14th mineral interest was conveyed by said deed, and that said heirs and successors still own an undivided %th mineral interest, and said heirs and successors also contend that Bartlett and Patman, and their successors in title are estopped to contend that the mineral deed in question conveyed more than an undivided 14th interest.

Shell and Cities Service, who own the major portion of the leasehold interest, have adopted a neutral postition and have not appealed. Shell and Cities Service in their brief state in part as follows:

“If the findings and conclusions under paragraph 4 are held to be correct (these findings relate to controversy 1) but those under paragraph S are held to be incorrect, (these findings relate to controversy 2) among others, then these results obtain:
“1. The judgment would be correct as to the surface title.
“2. The heirs of Jannie Robinson Lee would have no interest in the minerals or royalties. In the present judgment they were credited with a total of a )4 interest.
“3. Appellant Elmer Patman and his successors in interest would be entitled to a 14 interest in the minerals and royalties and Appellants Mrs. G. T. Bartlett and Wesson Bartlett and their successors in interest would be entitled to 14 °f the minerals and royalties.
“4. There would be an adjustment in the leasehold estate of Sinclair and of the overriding royalties.
“5. Recovery provided in the judgment of the warranties would remain.
“This listing of possible results does not cover the leasehold estate of the plaintiffs which has been previously discussed.
“WHEREFORE, Shell Oil Company and Cities Service Oil Company pray that, after this Court has determined the mineral ownership to the land in controversy, in accordance with the stipulations, judgment be entered making such ownership subject to their leasehold estate and the leasehold estate of Sinclair Oil and Gas Company, if any.” (Interpolations ours.)

We have reached the conclusion that the trial court’s judgment as to controversy 1 should be affirmed and that the trial court’s judgment as to controversy 2 should be reversed and remanded with instructions to' enter judgment in accordance with the holdings and opinion hereinafter outlined.

CONTROVERSY 1

We hold that the evidence was amply sufficient to show that Hugh Black was married to Angelina Black in 1882 and that the subject land was their community property.

Common source of title of the subject land is a deed dated March IS, 1883, from William C. Taylor and wife to Hugh Black. John H. Black, Ben J. Black, Josie Black White and Sallie Black Smith, were the sole heirs of said Hugh Black, who died in 1912.

As shown by the marriage license and certificate, duly recorded, and placed in evidence, Hugh Black and Angelina Black (formerly Robinson) were married on Dec. 28, 1882, a few months prior to the above deed.

The marriage license and certificate having been placed in evidence, all reasonable presumptions will be indulged in favor of the validity of the marriage. “Evidence”, Tex.Jur.2d, Sections 80, 253.

It was stipulated and undisputed that Janie (Robinson) Lee was the sole heir of Angelina (Robinson) Black, who died in 1890—about 7 years after the acquisition of of the subject property by her and her husband.

There was also testimony from Ed Garner, one of appellant’s witnesses, to the effect that Hugh Black and Angelina Black “stayed in Uncle Hugh’s old big house”; that Angelina “had her daughter (Janie) there with her when she came over there” ; that she, Janie, “stayed there for a while”, until “she left and Charlie Lee taken her.”

Clearly the evidence was amply sufficient to support the finding of the trial court that Hugh Black and Angelina Black were married in 1882.

Since the subject land was acquired during the marriage of Hugh and Angelina Black, and the deed contains no language showing that it was the separate property of either spouse; and since there was no evidence that it was acquired by gift, devise or descent, said land must be deemed to be the community property of Hugh Black and wife Angelina Black. Art. 4619, Vernon’s Ann.Tex.Civ.St.

We further hold that Janie Lee, the only heir of Angelina Black, under the record in this cause, was a tenant in common with her step-father Hugh Black and his heirs and successors in title. See the following authorities: 15 Tex.Jur.2d 157, Sections 2, 3 & 6; Lange, Texas Practice-Land Titles, Vol. 4, p. 42, Sec. 339; 10 Tex. Law Rev. 336; Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81 (1942); Wrighton v. Butler, 60 Tex.Civ.App. 646, 128 S.W. 472, no writ (1910); Johnson v. Dickey, Tex.Civ.App., 231 S.W.2d 952, writ refused (1950); Republic Production Co. v. Lee, 132 Tex. 254, 121 S.W.2d 973 (1938).

We further hold that G. T. Bartlett and Elmer Patman, the grantees of the 1937 deed from Janie Lee, et vir, (hereinafter more fully referred to in controversy 2) and their respective successors in interest, Sinclair and other named parties, were tenants in common of the mineral estate with the successors of Hugh Black. See Willson v. Superior Oil Company, Tex.Civ.App., 274 S.W.2d 947, wr. ref., n. r. e. (1954), and authorities cited therein.

We further hold that the trial court did not err in finding that there was no adverse possession of the land in controversy as against Janie Robinson Lee and her heirs and successors in interest.

Among other things, Napoleon Black and other appellant heirs and successors of Hugh Black contend that the children o.f Ben Black have acquired title by limitations as against Janie Lee, her heirs, successors and assigns.

As hereinafter stated, Hugh Black died intestate in 1912. His daughter Sallie Black, died in 1918, intestate, without issue or a surviving husband. The surviving children of Hugh Black were Ben Black, John Black and Josie Black (White) who then were the owners of the entire former community (4 interest of Hugh Black in the subject land. The other interest was then owned by Janie Lee.

On Dec. 7, 1922, John Black and wife conveyed to Ben Black all of “our individed interest” in the subject land, and other lands. Ben Black and wife then purported to convey an undivided 2/3 interest in the subject property to their daughter Julia Black by deed dated Dec. 21, 1922. Julia Black then reconveyed said purported interest to Ben Black by deed dated in 1925 and filed for record in 1930. By deed dated in 1936 Josie Black White and husband purportedly conveyed an undivided 1/3 interest in the subject land to Ben Black. This deed was only a few months prior to the mineral deed from Janie Lee and husband to G. T. Bartlett and Elmer Patman of date Mar. 31, 1937, with full warranty of title. Ben Black and wife Della Black died in 1946, intestate, leaving as their heirs Napoleon Black and other named heirs who are parties to this suit.

Napoleon Black and other Black heirs sought to prove a limitation title to the entire interest in the subject land and in their attempt to do so produced six witnesses. Three witnesses, Benny Willis, Ed Garner and Jodie Hilliard, were not Black heirs and did not claim any interest in the property. Their testimony was rather general and in our opinion was not sufficient to establish a limitation title in favor of Napoleon Black and the other Black heirs as against their cotenant Janie Lee, her heirs, successors and assigns.

The other three witnesses Napoleon Black, Julia Black Wilson and Will Black were children of Ben Black and are all appellants. Said witnesses were parties and interested witnesses. Their testimony has been carefully considered. Their testimony is rather general and contains certain conclusions on their part, particularly as to what they claimed and conclusions and testimony as to what their deceased father Ben Black did and the nature of his possession.

In 2 Tex.Jur.2d Sec. 223, it is stated: “Although the claimant’s testimony that he has been in possession of the land under an adverse claim of ownership for more than ten years raises an issue of fact, it is not conclusive because the claimant is an interested zvitness. * * * and the conclusions of a witness to the effect that a named party was the owner of the land, had fenced it, and acquired title by limitation are insufficient to show title by adverse possession.

We find no evidence of probative force in the record that any actual notice of repudiation of the cotenancy relationship was ever given or brought home to Janie Lee (or her heirs) by any of her cotenants. Also in our opinion constructive notice of repudiation of said cotenancy relationship was not established as a matter of law under the record in this cause.

The trial judge, the trier of the facts in this cause, was the judge of the credibility of the witnesses and of the weight to be given their testimony. He was not required to accept as conclusive the testimony of the three interested appellant witnesses. It is our view that the evidence in this cause certainly does not conclusively establish as a matter of law that appellant Black heirs had established a limitation title against their cotenant Janie Lee, her heirs, successors and assigns, under the record in this case. While there are many cotenancy cases which could be referred to here we think the Texas Supreme Court case of Todd v. Bruner, Tex., 365 S.W.2d 155 (1963), and the leading decisions cited therein, clearly enunciate the principles of law applicable in a cotenancy case such as the case at bar. The court after holding that there was no evidence of probative force to show actual notice of repudiation of the title of the co-tenants, stated in part as follows:

“We are also of the opinion that there is no support in the evidence for the finding that petitioners were charged with constructive notice of a repudiation of the cotenancy relationship. In Park v. Sweeten, Tex.Civ.App., 270 S.W.2d 687, affirmed by the Supreme Court under the style, Sweeten v. Park, 154 Tex. 266, 276 S.W.2d 794, it was pointed out that:
“ ‘The cases sustaining repudiation of tenancy by acts of unequivocal notoriety as distinguished from actual notice of repudiation, generally rely upon long continued possession and user coupled with non-claimer on the part of the true owner/
* * * * * *
“Insofar as the true owner of property is concerned, there is a vast difference between the notice of adverse claim conveyed by the presence of a stranger in possession and that of a cotenant in possession. It is not unusual for one cotenant to have exclusive possession and make beneficial use of lands for rather long periods of time and ordinarily such use is with the acquiescence of the other cotenants. Cotenancy is a common form of land tenure when owners belong to the same family. This results largely by the operation of the statute of descent and distribution and commonly followed customs and practices relating to the making of devises of lands. The legal presumption follows a generally recognized habit or practice based upon years of observed experience. The statutes of limitation are statutes of repose. They are intended to settle and support land titles and are not designed to afford a method whereby one member of a family may appropriate property belonging to his kinsman. Hence the legal requirement that notice of repudiation of the common title should be clear, unequivocal and unmistakable. In the present case, although the Edwin McNeese heirs lived in and about Round Rock, Texas, and the heirs of D. McNeese lived in San Antonio, Texas, no contention is made that the Round Rock McNeeses ever gave actual notice of their repudiation of the co-tenancy relationship to the San Antonio McNeeses. * * * The real property statutes of limitations as to cotenants are not designed to run in secrecy and silence. Brown v. Bickford, Tex.Civ.App., 237 S.W.2d 763, wr. ref. n. r. e. * * *
“Any cotenant has a right to be in the possession of property in which he owns an interest, hence if the acts of the respondents and their predecessors in title are susceptible of explanation consistent with the existence of the common title then such acts cannot be such as to give constructive notice to the cotenants out of possession. Southern Pine Lumber Co. v. Hart, 161 Tex. 357, 340 S.W.2d 775, citing 4 Tiffany on Real Property (3rd ed.) 526, § 1185; 4 Thompson on Real Property (Perm, ed.) 405, §§ 1881 et seq.
“Possession, coupled with payment of taxes, is not notice to a cotenant of a repudiation of the common title. Stiles v. Hawkins, Tex.Com.App., 207 S.W. 89; Poenisch v. Quarnstrom, Tex.Sup.Ct., 361 S.W.2d 367.
“The cutting of timber is not in itself notice of repudiation of a co-tenant’s title, although it may give rise to a right for an accounting. Kirby Lumber Co. v. Temple Lumber Co., 125 Tex. 284, 83 S.W.2d 638.
“In Killough v. Hinds, 161 Tex. 178, 338 S.W.2d 707, this Court said:
******
£í ‘The rule is thus stated in Davis v. Lund, Tex.Com.App., 41 S.W.2d 57: When A enters upon the land in recognition of the title of B, in order for A to prevail under the 10-year statute of limitations three things must be established, (1) there must be a repudiation of the relationship thus established and claim of title adversely to that of B; (2) this repudiation and adverse claim must be clearly brought home to B as limitations will only begin to run from that date; (3) there must be adverse possession for 10 years after notice of repudiation and adverse claim has been brought home to B/
“The authorities are in agreement upon the proposition that the law point is the same in a cotenant case as it is in a landlord and tenant situation. In commenting upon Sweeten v. Park, 154 Tex. 266, 276 S.W.2d 794, it was said in the Texas Law Review that:
“ ‘In Sweeten v. Park the Texas Supreme Court has set forth the doctrine which should become the basis of all future law in the area of adverse possession by tenants. Its soundness is attested by the fact that it is the rule in the majority of American jurisdictions. The policy of permitting a tenant to acquire a limitation title against his landlord by only ordinary acts of ownership may have been suited to a frontier society in which land titles were relatively unstable at best. It loses its validity, however, in a settled society in which stability is achieved largely through registration of deeds and other written documents. For the protection both of the landlord under whom the tenant enters and of persons who may later purchase from him, it is essential that the acquisition of title by a tenant be made dependent upon clear and unequivocal notice of his repudiation of the tenancy and his intention to claim the land for himself.’ Betty Jo Wiest Christian, “Adverse Possession by Tenants in Texas,” 38 Tex. Law Review 320.”

The burden of proof was upon appellant Black heirs to establish their limitation title as against their cotenant Janie Lee’s Y¿ interest (and her heirs, successors and assigns). This they failed to do to the satisfaction of the trial judge who heard the evidence. We hold that the trial court’s findings in this respect were warranted by the record in this cause.

Also, after carefully considering and reviewing the entire record in this cause in the light of the rules announced in the case of In Re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660, we further hold that the trial court’s findings to the effect that appellant Black heirs failed to establish a limitation title against Janie Lee’s Y¿ undivided interest in the subject property (and her heirs, successors and assigns), were not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

All points of appellant Napoleon Black and other appellant Black heirs, relating to their appeal with respect to controversy 1, are overruled.

The judgment of the trial court insofar as it disposes of controversy 1 is affirmed.

CONTROVERSY 2

On March 31, 1937, Janie Robinson Lee and husband, Charlie Lee, executed a mineral deed to G. T. Bartlett and Elmer Pat-man, which was regular in form and contained a full warranty. The granting clause stated:

“Do Grant, Sell, Convey, Assign and Deliver unto the said Grantee, an undivided one-half {}/£) interest in and to all the oil, gas and other minerals in and under, and that may be produced from the following described land situated in Cass County, Texas, to-wit r”

Following the description of the subject land in controversy the following language appears:

“It being intention of grantors herein to convey one-half of the minerals out of the interest owned by them in above-described tract of land.”

Appellants Wesson Bartlett and Mrs. G. T. Bartlett were the sole surviving heirs at law of G. T. Bartlett, deceased. The Bart-letts in 1952 executed an oil and gas lease in favor of Grant, Lessee; Sinclair, in 1959, acquired an interest in said lease as shown by assignment from Eastland, an assignee of Grant.

The trial court found to the effect that the mineral deed in question conveyed of Janie Lee’s 54 interest, same being a 54th interest in the whole. We do not agree.

In Minchen v. Hirsch, Tex.Civ.App., 295 S.W.2d 529, wr. ref., n. r. e. (1956) the court had before it for construction the following language in a deed, to-wit:

“ * * * it is our intention to convey unto the said S. Minchen, his heirs and assigns, free and clear of all claims, liens and encumbrances, a perpetual one-sixteenth (Jieth) fee mineral royalty/out of our interest therein." (Emphasis added.)

The grantors of said Minchen deed, prior to and at the time of execution of said deed, owned an undivided 54th interest. The trial court held that the joint effect of the clauses in the deed, including the language in the clause quoted above, conveyed a 54tth fee mineral royalty, same being 546th of said 54th interest.

Minchen, on appeal, contended that the deed conveyed to him not a 54ith but a 546th mineral royalty interest. The Court of Civil Appeals sustained Minchen’s contention and reversed and rendered the judgment of the trial court as to this issue. We quote from the court’s opinion in the Min-chen case, supra, in part as follows:

“The real bone of contention in this lawsuit is the construction of the royalty deed from Bryan to Minchen. The original of this instrument was in evidence and has been brought up in the record on appeal in this case. The interest conveyed thereby is referred to in the deed in three places, first in the granting clause:
“ ‘Have Granted, Bargained, Sold and Conveyed, and by these presents do hereby grant, bargain, sell and convey, unto the said S. Minchen, of Harris County, Texas, a one-sixteenth (546th) fee mineral royalty of our one-fourth (54th) interest in, on, or under the following described lands and premises, situated in Brazoria County,’
second in the habendum clause,
“ ‘To Have and To Hold the above described one-sixteenth (54eth) fee perpetual mineral royalty in, on, or under our undivided one-fourth (54th) interest,’
and last in a clause which states the express intention of the grantor,
“ ‘ * * * it is our intention to convey unto the said S. Minchen, his heirs and assigns, free and clear of all claims, liens and encumbrances, a perpetual one-sixteenth (5Í6th) fee mineral royalty/ojti of our interest therein.’
“It is noted that in the final clause stating the intention of the grantor, the grantor has written in the word ‘out’ in his own handwriting before the words ‘of our interest therein’ and has written to one side ‘ok DFB.’
“The trial court held that the joint effect of these three clauses was to convey to Minchen a Ye4th fee mineral royalty in the land in suit. All of the parties, those contending that the trial court’s construction of the instrument was correct and Minchen, who contends that the instrument conveyed a 5Í6th royalty interest to him, have filed able and extensive briefs on this question.
“The granting clause of the mineral deed refers to a ‘one-sixteenth (54.6th) fee mineral royalty of our one-fourth (54th) interest.’ Minchen concedes that under the law of Texas this statement, if followed by no statement showing contrary intent, did grant an undivided Yeith royalty interest. The habendum clause, however, refers to a ‘one sixteenth (54eth) fee perpetual mineral royalty in, on or under our undivided one-fourth (54th) interest.’ This clause, as we view it, is equivocal. It can be harmonized with the granting clause or it can be harmonized with the latter clause respecting the intent
of the grantor. The clause stating the intent of the grantor recites that ‘it is our intention to convey unto the said S. Minchen, his heirs and assigns, free and clear of all claims, liens and encumbrances, a perpetual one-sixteenth (Jieth) royalty out of our interest therein.’ The word ‘out’ is written 'with pen and ink into this sentence by the grantor. We think the clear meaning of this clause is that it was the intention of the grantor to convey to Minchen an undivided one-sixteenth (Vvsth) royalty interest in the land. This clause cannot be reconciled with the granting clause. It appears that the ambiguous wording of the haben-dum clause was noticed by the grantor and that he added the entire paragraph in the deed which stated his intention to be to grant to the grantee a perpetual %6th fee mineral royalty out of his interest. The phrase ‘out of clearly indicates only the source from which the one-sixteenth (Yieth) interest was to he taken. In construing a deed or other instrument of conveyance some meaning should be given to every word in the written instrument, if it can reasonably be done and if it is not inconsistent with the general intent of the whole instrument, so that the deed may operate, as by law, it may, according to the intention of the parties. Edwards v. Edwards, Tex.Civ.App., 52 S.W.2d 657. That construction which is most consistent with the intention of the grantor, as gathered from the terms of the conveyance, is accepted as the true one. Technical rules of construction are not favored and must not be applied so as to defeat the intention. Barkley v. Gibbs, Tex.Com.App., 242 S.W. 462.
ak ‡ ‡ % ‡ ‡
“We think, also, that the well settled rule of law that where handwritten and printed or typewritten matters in an instrument are inconsistent, the handwritten part will prevail, is in support of appellant Minchen’s contention that the handwritten word ‘out’ in the clause of intention serves to show the intent of the grantor to be to convey an undivided one-sixteenth (%oth) mineral interest. Without the addition of the word ‘out’ written in by the grantor the statement of intent would have read that he intended to grant a one-sixteenth (Yieth) of his interest. With the addition of that word it clearly stated his intent to he to grant a one-sixteenth (Va&th) out of his interest.
iji * * * * *
“That portion of the trial court’s judgment which is based upon the holding that the Bryan to Minchen conveyance conveyed only a %4th mineral royalty interest is reversed and judgment is rendered in accordance with our holding that such instrument conveyed a Jieth royalty interest in and under the tract of land in question. * * * ” (Emphasis added.)

In 6 Oil & Gas Reporter, 1372, there is this comment by W. D. Masterson, Jr., in the discussion notes following the Minchen case reported therein:

"‘Much of the difficulty encountered in mistaken attempts to define a mineral or royalty interest is caused by a failure to realize that ‘of’ is the same as ‘times’ in a multiplication formula. Thus, %e of equals Yei. On the other hand, conveyance of a Via royalty interest payable out of grantor’s 54 mineral interest, vests in the grantee a free Vis of gross production, the reference to the being simply a reference to the source of payment. Thus the phrase ‘out of’ was very important in the principal case. * * * ”

In commenting on the Minchen case, it is stated in Williams and Meyers, 1 Oil and Gas Law 655, Sec. 319, that “The position adopted by the court appears to be a tenable construction of the phrase ‘out of’ 4c * * ”

In Williams and Meyers, 1 Oil and Gas Law 654, Sec. 319, “Case 21A” is discussed:

“R executes a general warranty deed to E as follows: ‘Convey * * * an undivided one-fourth interest out of our one-half interest in the minerals in the following described land:’ ”, etc.

The authors state, “Thus, in Case 21A, E receives a J4 mineral interest, not 14 of or a Y& mineral interest.”

The granting clause in the 1937 mineral deed in question here is unambiguous and clearly conveys an undivided mineral interest in the subject land. The intent clause in said instrument is likewise unambiguous, clearly conveys an undivided mineral interest in the subj ect land, and the phrase “out of” in the intent clause refers to the source of the title out of which the Yz mineral interest was to be taken and did not operate to reduce the amount of the mineral interest acquired by the grantees.

We hold that the trial court erred in its construction of the said 1937 mineral deed. We hold that said mineral deed is unambiguous and conveyed an undivided Yz interest in the minerals in the subject land and served to convey to the grantees all of the undivided Yz mineral interest owned by Janie Lee in said land.

We further hold that the trial court erred in finding to the effect that at the time of the 1937 mineral deed in question, G. T. Bartlett and Elmer Patman, grantees therein, intended to acquire only a total of a }4tb mineral interest in the subject land. Over the objections of appellants the trial court erroneously admitted in evidence various extraneous instruments of Patman and the Bartletts, constituting admissions against their interests. The mineral deed in question being unambiguous, any intention as to what the grantors conveyed or the grantees received must be confined solely to the deed itself. Gibson v. Watson, Tex.Civ.App., 315 S.W.2d 48, wr. ref., n. r. e. (1958); Fox v. Lewis, Tex.Civ.App., 344 S.W.2d 731, wr. ref., n. r. e. (1961); 23 Tex.Jur.2d 523.

It is stated in 19 Tex.Jur.2d 394, Sec. 107:

“In ascertaining the intent of the grantor in a deed, it is not the function of the court to attempt to ascertain what he meant to say, but only the meaning of what he did say. The intention as expressed in the deed must be given effect, regardless of the intention that the parties had intended to express but that they failed to express. If there is no ambiguity in deed, the instrument will be enforced as written, even though it does not express the original intention of the parties.”

It must be borne in mind that the Lee-Moore defendants-appellees had no pleadings seeking reformation of the mineral deed in question for fraud, accident or mistake. In this connection see 23 Tex.Jur.2d 500, Sec. 342, wherein it is stated in part as follows:

“As a general rule, in the absence of fraud, accident, or mistake, extrinsic evidence is inadmissible to vary, add to, or contradict the terms of a valid written instrument that on its face is complete and unambiguous. In other words, unless a writing on its face rebuts in some manner the presumption that it is complete, inconsistent extrinsic evidence, either oral or written, is inadmissible to vary or add to the terms of the instrument. For example, if a written contract is complete on its face and there are no allegations of fraud, accident, or mistake, parol evidence is not admissible to show that the terms and legal effect of the agreement are not in accordance with the prior understanding of the parties. In brief, the extrinsic evidence rule ordinarily requires the exclusion of parol evidence of prior or contemporaneous negotiations, conversations, representations, or statements that would add to or vary the terms of written agreements that are clear on their face. The rule also prohibits the varying of written contracts by an agreed statement of facts. * * * ” (Emphasis added.)

The trial court also erred in admitting in evidence, over the objections of appellants, an oil and gas lease from Janie Lee and husband to G. T. Bartlett and Elmer Patman of date, March 31, 1937, covering the subject land. The trial court admitted the lease on the basis of estoppel only. It should not have been admitted on that basis or any other basis. The mineral deed in question was complete on its face as to the mineral interest conveyed, and since it was unambiguous, the lease and testimony with respect thereto should have been excluded. Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977 (1941); 23 Tex.Jur.2d 500, Sec. 342.

It has also been held that where all of a grantor’s interest has passed- by an unambiguous deed, the later acts of the grantee tending to prove a construction of the deed against his interest or recognition of rights in others will not impair the title vested in the grantee. Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81 (1942); 19 Tex.Jur.2d Deeds, Sections 154 and 167.

The trial court also erred in finding and holding to the effect that Bartlett and Patman, and their successors in interest, were estopped to assert that G. T. Bartlett and Elmer Patman acquired by the mineral deed in question more than a (4th mineral interest each (aggregating a (4th interest) ; that they acted on such basis; and, that they admitted said deed conveyed to them only a mineral interest or only a (4th interest to each of them.

The extrinsic instruments offered in evidence by defendants-appellees Lee-Moore, et al, have been examined and are found to be immaterial as to any question of estoppel as all of the requisite elements of estoppel as set forth in Alcoa Oil & Gas Corporation v. Concord Oil Company, Tex.Civ.App., 375 S.W.2d 463, affirmed in Tex., 387 S.W.2d 635 (1965), are not shown in this case.

Defendants Lee-Moore et al did not prove all of the components of estoppel. There is no proof that they were misled to their injury by the execution of any of the instruments by Elmer Patman or the Bart-letts to other persons to which instruments they or Janie Lee were not even parties. Furthermore, the acts and declarations of G. T. Bartlett’s successors and of Elmer Pat-man were immaterial as to defendants Lee-Moore et al, since the 1937 mineral deed was unambiguous and conveyed away all of the mineral interest of Janie Lee. Bruni v. Vidaurri, supra; 24 Tex.Jur.2d 231, Sec. 643; 19 Tex.Jur.2d 518, Sec. 191.

Sinclair, who deraigns its leasehold title from the successors of G. T. Bartlett, was also certainly not estopped or bound by any acts or declarations of the other grantee Patman, inasmuch as Bartlett or his successors, including Sinclair, were not in privity with Patman or his successors, and Sinclair also certainly was not estopped or bound by any acts, declarations or answers to requests for admissions by Mrs. G. T. Bartlett and Wesson Bartlett, after the 1952 lease from Mrs. G. T. Bartlett and Wesson Bartlett to Grant had been executed and delivered. Also Elmer Patman was not estopped or bound by any acts, declarations or answers to requests for admissions made by Mrs. G. T. Bartlett and Wesson Bartlett.

Admissions 7 and 8 of Wesson Bartlett and Mrs. G. T. Bartlett, to the effect that the 1937 mineral deed in question conveyed an undivided (4th interest to G. T. Bartlett and Elmer Patman were not admissions of fact but were admissions of law. These admissions of law should not have been considered by the court as against Wesson Bartlett, Mrs. G. T. Bartlett or anyone. See Gore v. Cunningham, Tex.Civ.App., 297 S.W.2d 287, wr. ref., n.r.e. (1956) wherein it was stated to the effect that the purpose of Rule 169, Texas Rules of Civil Procedure, was “to eliminate in advance of the trial fact issues which would not be in dispute, and that the rule does not contemplate or authorize admissions to questions involving points of law.” The other admissions made by Wesson Bartlett and Mrs. G. T. Bartlett have been examined and none of them are deemed to be operative to divest them of their title to their interest in the subject property.

If the 1937 mineral deed was in truth and fact not correctly drawn and was intended to convey only a 14th interest instead of the 1/2 interest it clearly conveyed by its language, then Janie Lee or her heirs and successors in title, by seasonably filing suit for reformation with appropriate allegations of fraud, accident or mistake could have sought to reform the mineral deed, which suit would have been subject to such defenses, if any, as might be available to the grantees and their successors in title. However we do not have a problem here of whether the mineral deed should be reformed as no suit for reformation was brought.

We do not believe that the unambiguous 1937 mineral deed in question can be reformed by construction or by alleged but unproven estoppel or by the admissions against interest as shown under the record in this cause. In this connection, see 19 Tex.Jur.2d 406, Sec. 113, wherein it was stated in part as follows: “The court may not, however, in order to harmonize conflicting clauses in a deed import words into the deed in such a manner as to amount to a reformation thereof by construction. A construction of this character mould he violative of the statute of frauds.” (Emphasis added.)

With respect to controversy 2, the judgment of the trial court which holds to the effect that Janie Lee and husband by the 1937 mineral deed conveyed to G. T. Bartlett and Elmer Patman only an undivided l^th mineral interest to each of them (aggregating a i/ith interest is reversed and remanded with instructions to enter judgment as hereinafter outlined.

The judgment of the trial court as to controversy 1 is affirmed. The portions of the judgment of the trial court which were not appealed from are not disturbed. The judgment of the trial court as to controversy 2 is reversed, and is remanded with instructions to enter an appropriate judgment decreeing title in the successors and assigns of G. T. Bartlett, (in their appropriate portions) to an undivided one-fourth mineral interest in the land in litigation, and decreeing title in Elmer Patman and his successors and assigns, (in their appropriate portions) to an undivided one-fourth mineral interest in the land in litigation, subject to the oil and gas leasehold interests owned by Shell, Cities Service and Sinclair in the proportions that they are validly owned by said parties, and the court should also adjudge that any proceeds of production attributable to the subject land, or any part thereof included in a unit, should be distributed on the basis of ownership as above found, and the court is directed to revise its judgment in the cause, so as to make same to be in conformity with all the rulings and holdings herein made.

Affirmed in part, reversed in part, and remanded with instructions to enter an appropriate judgment in conformity with the rulings and holdings herein made.


author: FRASER, Chief Justice.

text:
    S. D. BENDALIN, Appellant, v. Robert R. DELGADO, Sr., Appellee.
    No. 5754.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 1, 1965.
    Rehearing Denied Dec. 22, 1965.

      Gerald B. Shifrin, El Paso, for appellant.
    Lipscomb, Fisk & Cox, El Paso, for appellee.
   FRASER, Chief Justice.

The parties will be designated as they appear in the court below. Defendant Bendalin is appellant in this court, and plaintiff Delgado is appellee.

Plaintiff brought suit for specific performance on an alleged oral contract with defendant Bendalin, alleging that, under certain conditions, defendant had agreed that he and his associates would buy back the SO shares of stock which plaintiff was about to purchase in a corporation in which defendant was a large stockholder, director and President. Plaintiff had accepted employment in the corporation after a conversation with defendant. He states he was to replace a Mr. McCutcheon and function as yard foreman or manager. As described in appellant’s brief, he was hired as general manager of said corporation, to-wit, Consumers Wholesale Lumber Company, Inc. It seems to have been agreed between the parties that plaintiff was to purchase 50 shares of stock which, at that time, were in Mr. McCutcheon’s name. Defendant called at the lumber yard and picked up plaintiff and, during the ride enroute to the El Paso National Bank, it is alleged by plaintiff that he asked Mr. Bendalin what would happen to the stock he was about to buy if his employment with the corporation should terminate. According to plaintiff’s testimony Mr. Bendalin said that he and his associates would buy the stock back from the plaintiff should such eventuality arise. Plaintiff further testified that no price for the stock on re-purchase was agreed upon. Mr. Bendalin, the defendant, denies that such conversation took place or that such agreement was ever reached. Plaintiff' alleges that he withdrew his lifetime savings amounting to some $3400 or $3500, from a savings and loan company, and used it and a note payable to the El Paso National Bank, to make up the payment (approximately $5000) for the stock previously held by Mr. McCutcheon. McCutcheon owed some $4,632.95 on a note to the El Paso National Bank, which sum he had presumably borrowed to pay for his stock. This note, executed by Mr. McCutcheon, was co-signed by Mr. Bendalin and Dr. Vinikoff. When Mr. Delgado paid in his money and executed his note, the McCutcheon note to the bank was canceled and, of course, Mr. Bendalin and Dr. Vinikoff were released as co-signers or sureties thereon. So, at the close of the transaction, Mr. McCutch-eon’s note was canceled and Mr. Delgado had put in the cash he had withdrawn from his savings account and executed a note for some $1800 which, according to the record, he paid off eventually. Mr. Benda-lin and Dr. Vinikoff, both substantial stockholders in the corporation, had co-signed the note executed by plaintiff for the balance of the purchase price of the stock. According to plaintiff, his conversation with Mr. Bendalin took place in 1960. In February of 1962 plaintiff resigned his position and asked defendant to repurchase the stock. The defendant declined to do so, whereupon plaintiff brought suit. The case was submitted to the jury on special issues, and upon the answers thereto the trial court awarded plaintiff judgment in the sum of $2,867.44.

The appellant has presented seven points of error. The first four points deal with the defendant’s claim that even if there was an oral agreement, it was unenforcible because no specific price had been agreed upon in case the stock were to be repurchased by Mr. Bendalin, and that there was no proper way to enforce the alleged oral agreement, and that it was improper for the jury to ascertain the reasonable value of the stock on February 21, 1962, the date on which plaintiff alleges he tendered the stock for repurchase to Mr. Bendalin.

Taking these first four points as a group, we believe that the trial court was within his rights in entering judgment for the plaintiff, and did not commit error in so doing. Plaintiff-appellee maintains— and cites several cases in support of his position — that a contract can be specifically enforced even if an exact price or time is not stated. We believe these authorities are sufficient to support the court’s action and the plaintiff’s contention here. For example, in Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 148 A.L.R. 555, the Supreme Court of Texas stated:

“ * * * Absolute certainty is not necessary. ‘The certainty required in a contract which renders it subject to an action for specific performance is a reasonable certainty.’ Wilson v. Beaty, Tex.Civ.App., 211 S.W. 524, 527 (application for writ of error refused); Stevens v. Palmour, Tex.Civ.App., 269 S.W. 1057, 1059, 1060; Ward v. Stuart, 62 Tex. 333, 335, 336.”

In another case, to-wit, Ford Motor Co. v. Davis Brothers, Inc., Tex.Civ.App., 369 S.W.2d 664 (n.w.h.), the court, quoting from 17 C. J. S., Contracts § 36(2), at page 659, says: “ ‘A contract need not specify price since, if no price is stated, it will be presumed that a reasonable price was intended.’ ” Appellee presents a line of cases holding that where a contract does not specify a time of performance, the law implies a reasonable time. Texas Farm Bureau Cotton Ass’n v. Stovall, 113 Tex. 273, 253 S.W. 1101; Johnson et al. v. Mansfield, Tex.Civ.App., 166 S.W. 927. We believe the court, therefore, was within his authority in submitting an issue to the jury asking them to establish the reasonable value of the stock on the date that plaintiff tendered it for repurchase to Mr. Bendalin. Further, we believe that the appellee in his brief has successfully distinguished the cases presented by appellant.

In his first four points appellant also urges that not only was there no agreement setting a price for the repurchase of the stock, but that the finding by the jury of the reasonable value thereof was not supported by the evidence. However, the record shows that there was testimony by a Mr. Bell and by Mr. Bendalin bearing on the value of the stock and the manner of arriving at value or market price for stock of a similar nature. It appears from the record that there was a balance sheet purporting to show the net worth of the Consumers Wholesale Lumber Company, Inc. on December 31, 1961. This balance sheet indicates the net worth of the stock, sets forth the accounts receivable, inventory, etc. These matters were presented by plaintiff in his Exhibit No. 6.

We believe the judgment entered herein was a proper finding by the trial court and well warranted by the record. The jury found, in answer to Issue No. 1, that the defendant agreed to repurchase the stock bought by plaintiff if and when plaintiff ceased to be an employee of the lumber company. The jury further found, in answer to Issue No. 2, a figure representing the reasonable value of the stock bought by Mr. Delgado, as of February 21, 1962 (the date on which Mr. Delgado tendered the stock to defendant for repurchase). Our examination of the record convinces us that both the questions and the answers thereto were warranted and were supported by the evidence. Appellant’s first four points are therefore overruled.

The appellant’s fifth point states that there was no evidence as to the value of this stock on February 21, 1962, the date on which it was tendered to the defendant. Under the “no evidence” rule, we believe this point must be overruled for, as we have stated above, there is evidence of probative value here as to the value of the stock on the aforesaid date. Appellant’s fifth point is therefore overruled.

Appellant’s sixth point states that the jury’s finding of the sum of $2,867.44 as the reasonable value of the stock on such date is contrary to the evidence and excessive. Based on the record and the evidence therein, as set forth above, we believe this point must also be overruled.

The seventh point presented by appellant maintains that the court abused its discretion in allowing plaintiff to file a trial amendment a month after the verdict, but before judgment. We do not find harm in this point because this amendment, according to appellant, seeks to interject the issue of damages alternatively with that of specific performance. We do not think this presents error because, in our opinion, the result would be the same whether specific performance were decreed or damages allowed. We have already discussed the matter of the propriety of submitting the aforesaid issues to the jury relating to the value of the stock and have pointed out that there are cases holding that where either price or time is not specifically set forth, then a reasonable price or reasonable time will be considered to have been the intention of the parties to the contract. Further, appellee points out that defendant did not plead surprise or present evidence that he would have presented had the amendment been filed before the jury returned its answers to the special issue questions. Appellant’s seventh point is overruled.

Therefore, it appears to us that there was sufficient evidence to warrant the jury finding that defendant did agree to repurchase the stock that Mr. Delgado had bought if his employment should for any reason be terminated; and because we believe the court was correct in submitting to the jury the question of the reasonable value of the stock (where no specific price had been set by the parties) and that there was sufficient evidence to support the jury’s answer to such issue, we believe the trial court reached the correct result and its decision should be affirmed.

All appellant’s points having been overruled, the judgment of the trial court is affirmed.


author: CHADICK, Chief Justice. DAVIS, Justice.

text:
    Elnora BLY, by Devalia Lewis, Guardian, Appellant, v. Riley HARVEY et al., Appellees.
    No. 7678.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 23, 1965.
    Rehearing Denied Dec. 14, 1965.

      Pat C. Beadle, Clarksville, T. D. Wells, Paris, for appellant.
    B. F. Edwards, Clarksville, Dexter W. Scurlock, Fort Worth, for appellees.
   CHADICK, Chief Justice.

This is an appeal from a judgment rendered in a bill of review proceeding. The judgment of the trial court is reversed and rendered.

The pleadings of the parties establish that Elnora Bly was a person of unsound mind at all times relevant to this lawsuit. Prior to the case on appeal William C. Lee, as next friend of Elnora Bly, filed suit December 10, 1960, in the District Court of Red River County, wherein Elder Jones and Roy Jones, her brothers, were named as defendants. The action was styled “Elnora Bly, Plaintiff, v. Roy Jones, et al, Defendants”, and numbered 21,448 on the docket of the court and it is the judgment in that case that is being attacked in this bill of review. In this original suit Elder Jones did not answer or appear; no process was served on Roy Jones, but he put in an appearance by filing an original and an amended written pleading. Neither of Roy Jones’ pleadings was served upon Elnora Bly personally by citation or any similar process, nor was a guardian ad litem requested or appointed for her. Roy Jones’ original and amended pleadings were each described by him and filed as an Answer to Elnora Bly’s petition.

Elnora Bly’s original petition in Cause No. 21,448 is in the form usually found in a statutory trespass to try title action, with the addition of this paragraph, to-wit:

“IV. Plaintiff would further show that the Defendant Roy Jones is asserting a claim against the land for payments alleged to have been made to the Federal Land Bank of Houston on Vendor’s Lien Note owed by Plaintiff as well as claim for other accounts alleged to have been paid by him for Plaintiff and Plaintiff desires the court to adjudicate such claims whereby full settlement may be made to him for the amount due, if any, under such claims.”

The prayer is in this language:

“Wherefore, premises considered, Plaintiff prays that Defendants be cited to appear and answer herein in the manner provided by law; that upon hearing hereof, Plaintiff have judgment for the title and possession of the above described premises; that the claim of Roy Jones be adjudicated, and judgment rendered accordingly; for costs of suit and for such other and further relief as she may be entitled to either at law or in equity.”

The appellee asserts that the judgment of the trial court in this bill of review may be sustained on the proposition that the Elnora Bly petition considered alone empowered the court to grant the relief awarded by the judgment in No. 21,448 as it contains all of the requisites of a suit for equitable partition of real estate, and that Roy Jones’ pleading is simply a responsive answer to Elnora Bly’s petition meeting only the issues first presented by the petition’s allegations. The nature and effect of Elnora Bly’s and Roy Jones’ pleadings in No. 21,448 is the pivot on which this appeal turns. An analysis must be made.

A next friend, such as William C. Lee, in Cause No. 21,448, is not empowered to concede or admit anything prejudicial to the interests of the incompetent Elnora Bly, by pleading or otherwise, nor may he as a next friend waive any substantial right relating to Elnora Bly or her estate. Wright v. Jones (Com.App.) 52 S.W.2d 247 (1932); Bradford v. Knowles, 78 Tex. 109, 14 S.W. 307 (1890); Watson v. Glenn (Tex.Civ.App.) 82 S.W.2d 704. The petition prepared by Elnora Bly’s next friend must be measured by this rule. Effect will be given to the rule by assuming that the pleader did not intend to admit anything prejudicial to Elnora Bly’s interest unless the language used in the petition will permit no other reasonable construction.

The petition filed in Elnora Bly’s behalf in No. 21,448 primarily states an action to recover title to the land described therein. Its paragraph III charges Elder Jones alone with unlawfully entering, dispossessing Elnora Bly and withholding the land from her possession, etc. Secondarily, in paragraph IV, the petition states that Roy Jones is asserting a claim against the land because of payments he claims to have made to the Federal Land Bank of Houston on Vendor’s Lien notes owed by Elnora Bly, and for “other accounts” paid for her benefit. These allegations in paragraph IV are followed by language that appears to be intended as an explanation of the purpose for making the allegations.

The wording of Paragraph IV, plaintiffs’ petition in Cause No. 21,448 quoted above does not actually convey the thought that Roy Jones claimed title to the land, it alleges that his claim is against the land. Neither does the pleading in fact say that the vendor’s lien that Jones claims to have paid attached to the land in suit. When the allegation is construed with deference to the rule, any implication that the lien attached to the land must be excluded. As previously mentioned, Paragraph IV contains an explanation of the purpose of the allegations, which is, to have Roy Jones’ claims adjudicated so that a full settlement may be made for any amount found to be due him. This purpose can not be, consistent with the rule, construed as an admission that something, money, or an interest in the land, is due by Elnora Bly or her estate to Roy Jones; rather this allegation should be given the meanings ordinarily conveyed by its words when used in a trial court pleading.

Language such as adjudication of claims that full settlement may be made for the amount due is not ordinarily understood by Bench and Bar as dealing with an adjudication of land titles, interest in land or partition thereof. These words would ordinarily be understood to denote money demands and payment in money of a liquidated demand. An offer, or a suggestion, by one party that a claim be adjudicated and settled by payment of an amount found to be due to a second party ordinarily is not understood as a proposal by the first party to partition out to the second an interest in real estate. As limited by the rule, the permissible construction of the language of paragraph IV and the prayer is that an action for an accounting is alleged and relief appropriate to such action is sought.

The above analysis of the plaintiffs’ pleading compels the further conclusion that Roy Jones’ answer plead an action for partition of land, a new and independent suit, or, that a judgment was entered in the trial court that had no basis in the pleading. Examination of the Roy Jones first amended original answer in 21,448 puts this question at rest. This pleading shows Roy Jones claimed an equitable title to an interest in the land by reason of paying some of the purchase money vendor lien notes. In paragraph IV of this same pleading it is alleged that the land is incapable of partition, that a receiver should be appointed to sell the land and the proceeds divided between the plaintiff and the defendant, etc. The prayer was for partition and other relief.

This answer by Roy Jones asserting a counter-claim was a cross-action setting up an action different from that plead on behalf of the plaintiff Elnora Bly by her next friend. Elnora Bly was as to this cross-action a defendant. Rule 85. A plaintiff of unsound mind, represented at the time of judgment in a suit by next friend as authorized by Rule 44, Vernon’s Ann. Tex. Rules, when cast into the position of a defendant by a cross-action in the suit must be served with citation on the cross-action in accordance with the provisions of Rule 106, else the judgment rendered is voidable and may be set aside in a bill of review proceeding directly impeaching the judgment. McAnear v. Epperson, 54 Tex. 220 (1881); Wheeler v. Ahrenbeak, 54 Tex. 535 (1881); Wright v. Jones (Comm.App.1932) 52 S.W. 2d 247; 30 Tex.Jur.2d 723, Sec. 29; 34 Tex.Jur.2d 87, Sec. 223. See also 1 Texas Civil Practice (McDonald) 198, Sec. 3.09. The trial court did not have jurisdiction of Elnora Bly insofar as Roy Jones’ cross-action is concerned, and the judgment rendered thereon in No. 21,448 must be nullified.

The conclusion expressed above that the trial court was without jurisdiction to partition the land is fatal to appellee Riley Harvey’s claim to title as an innocent purchaser. See Edinburg Irr. Co. v. Paschen, (Com.App.1921), 235 S.W. 1088; Maury v. Turner, 244 S.W. 809 (Com.App.1922); Berry v. Harrell, 5 Cir., 83 F.2d 671; 35 Tex.Jur.2d p. 19, sec. 9; p. 28, sec. 15; 75 C.J.S., Receivers § 257, p. 885. Having purchased from a receiver, he was on notice of the proceedings in Cause No. 21,448, and the voidable nature of the judgment therein. The judgment and its defects is in his chain of title. All points of error, counterpoints and motions to dismiss not specifically dealt with herein have been carefully examined and decided in harmony with the disposition made of the appeal.

Riley Harvey, Roy Jones, Elder Jones, Mildred Scales and her husband, Earl Scales, are named as defendants in this bill of review proceeding. Judgment was entered in the trial court awarding Riley Harvey title and possession of the land in suit. Elnora Bly and her guardian gave notice of and perfected an appeal; Mildred Scales and her husband, Earl Scales, did not give notice of appeal; Elder Jones gave notice of appeal, but has not filed an appeal bond nor an affidavit in lieu thereof. The appeal of Elder Jones will be dismissed for want of jurisdiction. The judgment of the trial court is reversed and judgment rendered setting aside the judgment and orders in No. 21,448 and divesting title to the land in suit out of Riley Harvey and vesting the same in Elnora Bly, and awarding Elnora Bly all writs appropriate, necessary or useful in securing to her the possession and enjoyment of the land.

DAVIS, Justice.

I dissent. I would dismiss the appeal. The final judgment in the case was signed and entered on March 22, 1965. Rule 306a, V.A.T.R.C.P. Devalia Lewis, Guardian of the person and estate of Elnora Bly, a person of unsound mind, did not come to file an appeal bond. Art. 2276, Vernon’s Ann. Tex.Civ.St. The transcript was requested on April 30, 1965. The time to file the transcript and statement of facts expired on May 21, 1965. On May 19, 1965, Elnora Bly, individually, a person of unsound mind, filed a motion in this court requesting an extension of time to file the statement of facts, transcript, and bill of exceptions. The motion, omitting the heading, reads as follows:

“TO SAID HONORABLE COURT:
“Appellant, Elnora Bly, in the above entitled and numbered cause, shows that she has taken an appeal from the judgment of the trial court rendered herein; that she has not filed the transcript and statement of facts therein with the Clerk of this Court within the sixty days required by the Rule; that, within this, a reasonable time, and not exceeding fifteen days after the expiration of such sixty day period, she makes this motion and shows that good cause existed, within such sixty-day period and to this date, why such transcript and statement of facts could not be so filed, viz: that the court reporter who reported the testimony and other proceedings in the trial of such cause has not been able, due to the volume of work which she has been required to do for the past several weeks, to prepare a transcript of the testimony and bills of exceptions as required by law, after due request therefor made by this appellant; that such cause will probably be removed within 30 days.
“Wherefore, movant prays that this Honorable Court permit such transcript, statement of facts and bills of exceptions to be filed as such time and upon such terms as it may prescribe.”
“Respectfully submitted, this 19th day of May, 1965.
/s/ Pat C. Beadle
Attorney for Appellant, Elnora Bly, Beadle Building, Clarksville, Texas”

The motion was not verified, and was not accompanied by a statement and/or affidavit from the District Clerk or the Court Reporter that they had been timely requested to prepare the transcript and statement of facts, and that they could not do so. We granted the motion on May 25, 1965 (on the 5th day after the motion was filed) in violation of Rule 409, V.A.T.R.C.P» The rule is as follows:

“Rule 409. Notice on Motions
“The clerk, upon filing and docketing a motion other than one for rehearing in any cause, shall, unless waived, give notice to the opposite party or his attorneys of record, by transmitting a brief notice of the nature or purpose of such motion to said party or his attorneys in the manner provided in Rule 411, and no such motion shall be heard or determined until ten days after such notice has been mailed. The ten days’ notice requirement may be disregarded by the court in cases of emergency.” (Emphasis added).

The Statement of Facts was not approved and certified to by the attorneys for appellant. Neither did they submit the statement of facts to the attorneys for the appel-lees to examine, approve and certify. The action taken by the attorneys for appellant is in violation of Rule 377(c), R.C.P., which reads as follows:

“(c) Promptly after notice of appeal is given and where a request is made of the official court reporter for the preparation of a transcript of all or any part of the evidence adduced on the trial of the.case, or whenever, with or without such a request, a statement of facts is filed or offered for filing by appellant, the appellant shall deliver or mail to the appellee or his counsel- and file with the clerk of the court a designation in writing of the portions of the evidence desired, and shall specify the portions desired in narrative form, if any, and the portions desired in question and answer form, if any, and the portions that are desired to be omitted. Within ten days thereafter any other party to the appeal may file a designation in writing of any additional portions of the evidence to be included, specifying the portions desired in narrative form, if any, and the portions desired in question and answer form, if any.”

The statement of facts was filed by the District Clerk on May 4, 1965. Under the Court Reporter’s signature, I find the following :

“Approved this the 3rd day of June, A.D. 1965.
/s/ Herbert Line
Judge Presiding
102nd Judicial District of Texas.”

There is NO certificate by the District Judge that the statement of facts constitutes a full, true and correct copy of the testimony adduced on the trial of the cause or, an order requiring the statement of facts to have been filed as part of the record in the case. Fellers v. Anco Sales Company (Tex.Civ.App., 1959) 327 S.W.2d 797; First National Bank of Bryan v. Roberts (Tex.Civ.App., 1955) 280 S.W.2d 788, W.R., N.R.E. The trial court was apparently trying to approve the statement of facts under Rule 377(d), R.C.S., which reads as follows:

“(d) Approval of Trial Court Unnecessary. It shall be unnecessary for the statement of facts to be approved by the trial court or judge thereof when agreed to by the parties. If any difference arises as to whether the record truly discloses what occurred in the trial court, or if the opposing party fails to agree or to disagree within ten days after being furnished with a copy of the proposed statement of facts, the matter shall be submitted to and settled by the trial court or judge thereof and the statement of facts be by him made to conform to the truth.”

In the original motion, which we granted erroneously, the appellant gave no good cause for the failure of the District Clerk to prepare and file the transcript within sixty days. Appellant tries to excuse himself by the fact that the trial judge extended the time in which to file the transcript and statement of facts until June 4, 1965. The District Judge could not extend the time for such action beyond the 60 day period that is required to file the transcript and statement of facts in this court. Rule 381, R.C.P. Since this court had notice that Elnora Bly was a person of unsound mind, we should not have considered the motion. The law is too well settled to require citing authorities.

I think the court’s action is in violation of Rule 385, R.C.P., because we did not require a showing of “good cause” as has been defined by the courts of this state. Matlock v. Matlock (Tex.Civ.App., 1951) 245 S.W.2d 536; Reversing 1952, 151 Tex. 308, 249 S.W.2d 587; Dellerman v. Trager (Tex.Civ.App., 1959) 327 S.W.2d 667, wr. dism’d; Carter v. City of Fort Worth (Tex.Civ.App., 1962) 357 S.W.2d 581; Taylor v. Federal Land Bank of Houston (Tex.Civ.App., 1965) 390 S.W.2d 477; Consolidated Casualty Insurance Co. v. Wade, (Tex.Civ.App., 1963), 373 S.W.2d 841. wr. dism.

This court is without jurisdiction.


author: CADENA, Justice.

text:
    Arturo C. GONZALEZ, Appellant, v. William G. BURNS, Appellee.
    No. 14412.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 24, 1965.
    Rehearing Denied Dec. 29, 1965.

      Arturo C. Gonzalez, Del Rio, for appellant.
    W. R. Smith, San Antonio, for appellee.
   CADENA, Justice.

Appellant, Arturo C. Gonzalez, complains of the refusal of the trial court to sustain his plea of privilege.

Appellee, William G. Burns, filed suit in Bexar County against appellant and Ramon D. Bosquez, individually and as partners carrying on business under the firm name of Inter-American Advertising Agency, to recover on a promissory note in the principal amount of $40,000.00. The note, which is expressly made payable in San Antonio, Bexar County, was executed by Bosquez, acting for himself and for the partnership.

Bosquez filed no answer, and an interlocutory default judgment has been rendered against him. Appellant filed a plea of privilege asserting his right to be sued in Val Verde County, the county of his residence. The controverting affidavit filed by appellee seeks to maintain venue in Bexar County under Subd. 5 of Art. 1995, Vernon’s Ann.Civ.Stats., which provides, in substance, that where a person has contracted in writing to perform an obligation in a particular county named in such written instrument, suit upon the obligation may be maintained in the county so designated.

Appellant’s brief contains no point challenging the sufficiency of the evidence to support the implied finding of the court, in overruling the plea of privilege, that Bosquez, at the time he executed the note, was authorized to bind the partnership. We must, therefore, assume that Bosquez, at the time he executed the note in question, was acting within the scope of his authority as appellant’s partner. Since the ap-pellee’s suit is for the enforcement of a written contract expressly made payable in Bexar County, and since we must assume that the evidence established that the note was executed by one having authority to bind appellant, the suit was properly maintainable in Bexar County under Subd. 5. 1 McDonald, Texas Civil Practice, § 4.11; Clark, Venue in Civil Actions in Texas, p. 45.

Appellant contends that the trial court erred in overruling his plea of privilege because he is not a necessary party to the suit filed by appellee. The question of whether or not appellant is a necessary party to appellee’s suit would be relevant only if the only basis for maintaining venue in Bexar County were Subd. 29a of Arc. 1995. If, as we hold, venue is properly maintainable in Bexar County under Subd. 5, there is no need to concern ourselves with the applicability of Subd. 29a.

The only other contention raised by appellant here is that the trial court erred in overruling his special exceptions to appellee’s controverting affidavit. The record before us contains no order of the trial court reflecting the action taken with reference to such exceptions. The transcript does contain an instrument denominated “Bill of Exception No. 1,” which is approved by the trial court and recites that the court overruled such exceptions and that appellant excepted to such action.

It is well settled that rulings of the trial court relating to the sufficiency of pleadings must be shown by order or judgment entered in the minutes, and not by bill of exception. Rulings on pleadings reflected only by bill of exception will not be reviewed. Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155 (1945); Epting v. Nees, Tex.Civ.App., 25 S.W.2d 717, wr. ref.; Merrick v. Street, Tex.Civ.App., 91 S.W.2d 851, wr. ref.; Rule 376, T.R.C.P.

The judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    LIBERTY INSURANCE COMPANY OF TEXAS, Appellant, v. Golda Gladys LAND, Appellee.
    No. 16685.
    Court of Civil Appeals of Texas. Port Worth.
    Dec. 17, 1965.
    Rehearing Denied Jan. 14, 1966.

      Brown, Day & Crowley and M. Hendricks Brown, Fort Worth, for appellant.
    Mock, Banner & McIntosh and C. Coit Mock, Wichita Falls, for appellee.
   RENFRO, Justice.

Plaintiff, Mrs. Golda Gladys Land, brought suit against Liberty Insurance Company to set aside a compromise settlement.

The jury found in answer to issue No. 1 that on August 8, 1961, Mr. Land sustained personal injury while lifting or handling heavy machinery at the Hammon Warehouse, and in answer to issues Nos. 2, 3 and 4 found the injury was accidental, sustained in the course of his employment and was a producing cause of his death.

In answer to issue No. 9 the jury found that Hogan (an adjuster) represented to plaintiff on September 29, 1961, that there was no evidence of an injury to Land. In answer to issue No. 10 the jury found such representation to be false, and in issues Nos. 11 and 12 that plaintiff relied on such representation in making the settlement and accepting and depositing a check in the sum of $2,500.

In issue No. 13 it was found that Hogan concealed material information from plaintiff at the time he obtained the release and in issue No. 15 found that the representation made by Hogan was an honest expression of opinion on his part. In answer to No. 16 the jury found plaintiff was not possessed of as much information as to the cause of Land’s death as was Hogan.

In its first eight points of error defendant contends there was no evidence or that the evidence was insufficient to support the answers to issues Nos. 1, 10, 11, 12, 13 and 16.

Defendant also argues that judgment should have been entered for it because of the jury’s finding that the representation was an honest expression of opinion on the part of Hogan; that as a matter of law it was a mere expression of opinion because the information was equally open to the parties.

Defendant’s point No. 12 complains of the admission of a part of Dr. Trimble’s testimony.

We think the controlling question before us is whether the trial court erred in disregarding the finding that Hogan’s representation was an honest expression of opinion.

Land was manager of the Producers Supply and Tool Company at Kamay in Wichita County. Part of his duties was to make delivery of various kinds of machinery, etc., handled by his employer.

It is undisputed that he left the store about 8:00 or 8:30 A.M. on August 8, 1961, to deliver a “wrist pin to an American Jack” to the Hammon Warehouse. When he arrived at the Hammon place he lifted the pin from the trunk of his car and carried it some distance to a concrete platform. The pin weighed 40 or 50 pounds. He, with the assistance of the Hammon workers, had considerable difficulty in installing the pin. Land spent 30 minutes lifting, shoving and moving the pin. After accomplishing the above mission, Land left the Hammon premises.

Between 9:30 and 10:00 A.M. he returned to the store. His wife and three men who worked in and out of the store testified that when he returned he was ill. He complained of severe stomach ache. He did not tell anyone at Hammon’s, or, upon his return to the store anything about an accident, injury or strain.

Later in the day he was sent to a hospital. The next day a perforation was discovered in the colon. Surgery was performed. On the 24th surgery was again performed. He died on the 26th.

Hogan, an independent adjuster, agent for defendant, contacted plaintiff on September 16. Plaintiff testified Hogan was nice and sympathetic; that he promised he would make a thorough investigation and bring his findings to her. She, at that time, told Hogan that the doctor had told her that the injury to Land could have been caused by stress and strain. She gave Hogan the names of several people who might have useful information. Because of his manner and attitude she developed confidence in him.

Hogan obtained statements from the three men at the store, and an oral statement from one and a written statement from another of the Hammon employees. He did not interview all the men who had worked with Land at the Hammon lease. He obtained written statements from the two attending doctors.

He learned of the exertions with the pin by Land at the Hammon place, Land’s sudden illness, and the perforated colon. None of the statements referred to any injury or any expression of strain by Land.

Hogan met plaintiff again on September 29. According to plaintiff, Hogan said that he had not found anyone that knew anything "about this”, and that the insurance company did not owe her anything. Hogan testified: “I told her that I had talked with all of the men at the store and at the Gulf Warehouse and the Hammon Warehouse, and had obtained the doctors’ reports, and there was no indication that he sustained any injury. And I told her that it was not a compensable claim.”

The settlement agreement was then executed. The agreement was approved by the Industrial Accident Board and two weeks later plaintiff received and deposited a check in the sum of $2,500, the amount of the agreed settlement.

On the above occasion Hogan did not show plaintiff any of the statements in his possession. He did not tell her about the time and physical effort Land had expended in installing the “pin”.

Although plaintiff knew her husband, as a regular part of his job, handled items of various weights, she did not know about the physical exertion that particular morning concerning the pin. If Hogan, she testified, had told her what he had learned about her husband’s activities that morning she would not have signed the settlement agreement. The statement from Dr. Trim-ble obtained by Hogan contained the statement, “There can be little doubt but that he was feeling quite well on the morning of 8 August 1961 and became ill while performing his usual and regular duties.” Plaintiff was not informed of this statement. The statement of Dr. Thornton contained the statement: "It is my opinion that spontaneous rupture * * * occurred while the patient was at work on 8-8-61 and that he was not aware that he had diverticulo-sis.” This statement was not shown or related to plaintiff.

At the first meeting between plaintiff and Hogan he was informed the doctor had said Land's condition might have been caused by lifting some object.

Plaintiff’s age was in the middle sixties. She was always a housewife with no business experience.

Hogan was an experienced insurance adjuster. He was familiar with the Workmen’s Compensation law.

He did not tell plaintiff the maximum amount of compensation for death, nor any other benefits provided by law.

At the trial, by deposition, Dr. Trimble testified that he saw Land on the afternoon of August 8th. Land told him he developed a severe abdominal pain while doing some lifting.

In Dr. Trimble’s opinion it was highly probable that the rupture occurred while Land was working with the pin, and the rupture was the ultimate cause of his death. Dr. Trimble was the surgeon who operated and treated Land.

Defendant challenged the admissibility of Dr. Trimble’s testimony. The testimony was admissible. The opinion of a physician or surgeon as to the condition of an injured or deceased person is not rendered incompetent by the fact that it is based partly upon the history of the case given by the patient to the physician or surgeon on his examination of the patient, when the examination was made for the purpose of the treatment and care of the patient. Federal Underwriters Exchange v. Carroll, 130 S.W.2d 1101 (Beaumont Civ.App., 1939, no writ hist.); Missouri, K. & T. Ry. Co. of Texas v. Rose, 19 Tex.Civ.App. 470,49 S.W. 133 (Civ.App. of Texas, 1898, ref.); Texas General Indemnity Co. v. McNeill, 261 S.W.2d 378 (Beaumont Civ.App., 1953, no writ hist.); Austin Road Company v. Thompson, 275 S.W.2d 521 (Fort Worth Civ.App., 1955, ref., n. r. e.).

There was ample evidence to support the jury’s answers to issues Nos. 1, 9, 10 and 12.

It is clear Hogan made the representation set out in issue No. 9 for the purpose of inducing plaintiff to settle her claim, and that she relied thereon.

In Duncan v. Texas Employers’ Ins. Ass’n, 105 S.W.2d 403 (San Antonio Civ.App., 1937, writ dism.), it was held: “The question of the good faith of the physician and agent in making the statements to plaintiff * * * is not material to the case. Since the jury found that those statements were ‘untrue,’ it does not matter whether the persons making them knew them to be untrue at the time made, for the fact that the statements were not intentionally false would not affect the right of plaintiff to have the release set aside, if she was in fact misled by the statements. Tex.Jur. p. 42 et seq., §§ 22, 23, 24; 36 Tex.Jur. p. 809, § 12; Culbertson v. Blanchard, 79 Tex. 486, 492, 15 S.W. 700.” The case holds further that if the releasor is under a present disability, physical or mental, from any cause, such as opinions which by the manner in which they are pressed upon the re-leasor may amount to statements of fact, the releasor may rely upon them without independent investigation.

In Texas State Highway Department v. Kinsler, 230 S.W.2d 364 (Beaumont Civ. App., 1950, ref.), the court stated: “* * Dr. Greenwood’s medical report amounted to legal fraud, even though Dr. Greenwood and the claim agent (emphasis added) both believed that statement to be true and correct.”

The Commission of Appeals in an opinion adopted by the Supreme Court, Graves v. Hartford Accident and Indemnity Co., 138 Tex. 589, 161 S.W.2d 464 (1942), approved the rule that it is not an essential element of fraud in cases of this character that the party charged therewith must know of the falsity of the representation in question.

The contention that misrepresentations of defendant’s doctor as to a workmen’s compensation claimant’s physical condition would not be a sufficient predicate for rescission on the ground of fraud if they were not intentionally made was rejected in Casualty Reciprocal Exchange v. Bryan, 101 S.W.2d 895 (Eastland Civ.App., 1937, no writ hist.), the court saying that an innocent misrepresentation of a material fact, made for the purpose of inducing a settlement, would justify the avoidance of the release induced thereby. See also Jones v. Traders & General Ins. Co., 188 S.W.2d 739 (Eastland Civ.App., 1945, no writ hist.); Travelers’ Insurance Co. v. Mabry, 179 F.2d 216 (CA 5 Cir., 1950); Liberty Mut. Ins. Co. v. Gerald, 170 F.2d 917 (CA 5 Cir., 1948).

In view of the facts of record, the rule that both parties are bound to an agreement made when the means are equally open to them for ascertaining the true facts upon which the agreement is made is not applicable to the instant case.

Admittedly plaintiff knew nothing about investigative work. Hogan did. Plaintiff did not know what kind of evidence would be required to establish the fact that her husband was injured in such manner as to prove that she was entitled to benefits under the Workmen’s Compensation law. Hogan said he did know.

Bearing in mind the situation of the parties, Hogan’s superior experience and knowledge, plaintiff’s reliance upon him, of which reliance he was aware, we hold, in view of the record in this case, that under the cited authorities Hogan’s statement, even in the form of an opinion, should be regarded in law as a statement of present fact, and being untrue according to the jury and having deceived the plaintiff, the release was not binding upon her.

All points of error are overruled.

judgment affirmed.


author: WILSON, Justice.

text:
    The HANOVER INSURANCE COMPANY, a Corporation, Appellant, v. Charles James JOHNSON, Appellee.
    No. 4427.
    Court of Civil Appeals of Texas. Waco.
    Dec. 16, 1965.
    Rehearing Denied Jan. 6, 1966.

      Jones, Boyd, Westbrook & Lovelace, L. Wayne Scott, Waco, for appellant.
    W. Lance Corsbie, Waco, for appellee.
   WILSON, Justice.

Plaintiff recovered judgment for total and permanent incapacity under a jury verdict.

He thus described his claimed injury: he was bending, stooping or squatting to paint a water tank on his employer’s premises in the course of his employment, when “a fellow that works next door” for another employer passed behind him and spoke. “We had these machines going on at the time,” he said. “I turned around to see what he wanted, and the pain went plumb through here down through my leg.” He testified he felt a pull in his left leg “and this part of it back here was paralyzed. I didn’t have any feeling in it until I’d stood around for awhile and it started coming back. I just heard a voice behind me that holloed, and I turned around to see who it was, and that’s when the pain got me.”

There was evidence plaintiff had sustained a previous back injury resulting in a narrowed disc space and a protruded disc, and was suffering from a degenerative condition in the spine.

Appellant says the injury is not compen-sable because there is no causal connection between the injury and claimant’s employment; that it does not come within the requirement of Art. 8309, Sec. 1, Vernon’s Ann.Civ.St., of “having to do with and originating in the work,” of the employer; that he faced no risk or hazard other than that faced by the general public; that the cause of his turning was not an incident of plaintiff’s employment, i. e., it resulted, not from his work, but from curiosity.

Appellant’s arguments are not without force, but, in our opinion, are untenable. The broad test for determining causal connection of the employee’s injury is stated in Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72, 73, 28 A.L.R. 1402: “An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct” of the employer’s work or business. The causal connection may be either through its activities, its conditions or its environments, and the “ ‘risk may be no different in degree or kind than those to which he may be exposed outside of his employment. The injury is compensable, not because of the extent or particular character of the hazard, but because it exists ás one of the conditions of the employment.’ ” Garcia v. Texas Indemnity Ins. Co., 146 Tex. 413, 209 S.W.2d 333, 337.

It is held that strains, sprains, wrenches and twists due to unexpected, un-designed or fortuitous events, even where there is no overexertion, and the employee is predisposed to such a lesion, are compen-sable. 99 C.J.S. Workmen’s Compensation § 183, pp. 617-619. In our opinion the reason for plaintiff’s turning and the turn were incidents of his employment.

Error is assigned to exclusion of evidence to the effect that the woman with whom plaintiff was living was not his wife. Appellant tendered the evidence after plaintiff testified that after his claimed injury he was “hurting só bad” his “wife” had to help him out of the car, and called a doctor. Appellant says the evidence should have been admitted to contradict plaintiff’s account of the circumstances surrounding the accident.

It is widely held that a witness may not ordinarily be cross-examined concerning specific sexual irregularities for the purpose of affecting his credibility, 58 Am. Jur., Witnesses, Sec. 765, p. 416, 98 C.J.S. Witnesses, §§ 502, 505. See Garza v. Garza, Tex.Civ.App., 109 S.W.2d 1079, writ dism. It is held also that the general test for determining whether impeachment evidence relates to a collateral matter so as to justify its exclusion is whether the party seeking to introduce it would be entitled to prove it as a part of his own case. 58 Am.Jur., Witnesses, Sec. 785, p. 533; 98 C.J.S. Witnesses § 633, p. 654; 62 Tex. Jur .2d, Witnesses, Sec. 186, p. 97. Evidence which bears upon the story of a witness with force enough to have “appreciable value in determining whether or not that story is true” is said not to be on a collateral issue. Gulf C. & S. F. Ry. Co. v. Matthews, 100 Tex. 63, 93 S.W. 1068, 1070. In our opinion the excluded evidence was admissible, but its exclusion was within the court’s discretion, and we are unable to say, under the present record, that the court abused its discretion in excluding it, cr that the action constituted reversible error.

Jury argument of claimant’s counsel has caused us much concern. In our opinion much of it was erroneous. The question is whether it requires reversal. The argument has been carefully considered with the entire record, and, with doubt, we are unable to clearly conclude the argument probably induced rendition of an improper judgment. All of appellant’s points are overruled.

Affirmed.

TIREY, J., not sitting.