author: DIXON, Chief Justice.

text:
    George A. McROY, Appellant, v. RIVERLAKE COUNTRY CLUB, INC., Appellee.
    No. 17009.
    Court of Civil Appeals of Texas. Dallas.
    Fe
    Rehearing Denied April 5, 1968.

      William A. Barber, Jr., of Wright & Barber, Grand Prairie, for appellant.
    William D. Mount, William W. Looney, G. H. Kelsoe, Jr., Dallas, for appellee.
   DIXON, Chief Justice.

Appellant George A. McRoy brought suit against appellee Riverlake Country Club, Inc., seeking damages for personal injuries alleged to have been caused by the negligence of appellee. A motion for instructed verdict was sustained by the trial court after appellant, plaintiff in the trial court, had rested. Appellee had not presented any direct evidence. Appellee will hereinafter be referred to as Riverlake Club.

Appellant was a member of Riverlake Club. About the middle of April 1963 he and a friend, who was appellant’s guest, were playing golf. Both of them were riding in a golf cart, which was being operated by the friend. The friend had driven his golf ball into what is known as the rough when the players were approaching the 18th green on the Riverlake Club course. While they were looking for the ball the axle of the cart caught against a tree stump, which appellant claims was obscurecLby grass. The cart came to a sudden stop when its axle failed to clear the stump. Appellant says he was thrown from the cart, sustaining serious injuries.

The substance of appellant’s first point of error is that it was error for the court to sustain appellee’s motion for instructed verdict since there were fact issues raised by the pleadings and evidence.

In determining the propriety of the instructed verdict it is necessary for us to' examine the evidence carefully; and in doing so to bear in mind the rules which must guide us to our conclusion. We are required to view the evidence in the light most favorable to the losing party. Any inference which properly may be drawn from the evidence must be indulged against the granting of the motion. Conflicts, if any, in the testimony are to be disregarded. If the record reflects any testimony of probative force, either direct or circumstantial, in favor of the party against whom the verdict was instructed, we must hold the instruction to have been improper. Testimony adverse to the losing party will be disregarded. Robertson v. Centennial Properties of Austin, 392 S.W.2d 577 (Tex.Civ.App., Austin 1965, writ ref’d n. r. e.) ; Air Conditioning, Inc. et al v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422, 425 (1952); White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935 (1940) ; McLellan Stores Co. v. Lindsey, 157 S.W.2d 1013 (Tex.Civ.App., Eastland 1941, writ ref’d w. o .m.) ; Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725 (1930).

It should also be borne in mind that since we are considering an instructed verdict, the “no evidence” rule applies. We are not concerned with the question whether the evidence was “sufficient” to sustain a jury verdict had the case been submitted to the jury. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, “ ‘No Evidence’ or ‘Insufficient Evidence’ Points of Error”, 38 Tex.L.Rev. 361.

Applying the above rules, we have concluded that the granting of the motion for instructed verdict was error and the cause should be reversed and remanded for another trial. In its motion Riverlake Club named eight grounds in support of its motion. We shall, briefly discuss each of the grounds. 1

1. Appellee says that appellant failed to show that he was injured on April 25, 1963. Appellant’s pleadings alleged that he was injured on or about April 25, 1963. Dr. Loiselle, who treated appellant soon after the accident, testified that the history given him by appellant was that the accident occurred April 18, 1963. Appellant, who testified four years after the accident, stated that to the best of his recollection the accident occurred about the middle of April—that Dr. Loiselle’s history was probably correct. Appellant asked leave to amend his pleadings, but this was refused by the trial court. The first ground alleged by appellee is without merit.

2. Appellee says that appellant failed to show that Riverlake Country Club breached any duty it owed to appellant. This ground is also without merit. The necessary elements of the “no' duty” doctrine are set out by our Supreme Court in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963). In the instant case appellant testified that grass “obscured” the stump. Though he did testify that “the stump was there, and it looked like the cart would go over it”, he also testified that “I didn’t testify I seen the stump. If I did, it was too late to suggest anything. I was looking for a golf ball, not stumps.” The witness Bezner, the owner and operator of a golf course, who was familiar with the Riverlake Club course, testified that stumps should not be on a golf course, “or a mark put up, or a fence put around it, or something. ***so***a cart won’t hit it.” The evidence in regard to the no duty doctrine is not conclusive in favor of appellee. It is not such that no other verdict should be rendered than an instructed verdict. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W. 2d 422, 425 (1952).

3. Appellee says that appellant was guilty of contributory negligence as a matter of law. We cannot agree. Appellant in effect testified that if he saw the stump before the collision it was not in time to suggest anything to the person driving the cart. We shall not extend this opinion by detailing more of the evidence on this question.

4. Appellee further alleges that appellant failed to prove ownership by appellee of the cart, or of the golf course. The test is not necessarily ownership. The test is whether Riverlake Club had control of the premises where the stump was located. Appellant, a member of the club, had played the course many times. He testified that the cart was, in the course though it was in the rough and that he was hurt on the 18th hole. Appellant and his guest were playing the 18th hole when the cart hit the stump. Appellee’s attorney tried unsuccessfully to make appellant admit that he saw signs put out by River-lake Club warning its members not to operate a cart in the rough. The circumstances indicate that Riverlake Club had control of the golf course, which included the rough. We think the pleadings and the evidence plainly show that the case was tried on the theory that Riverlake Club had control of the area in question. McLellan Stores Co. v. Lindsey, 157 S.W.2d 1013 (Tex.Civ.App., Eastland 1941, writ ref’d w. o. m.).

However, we cannot agree with appellant when he asserts that in affirmatively pleading assumed risk appellee judicially admitted its possession and control of the premises in question. Appellee pleaded that "defendant club has posted on and about its premises warning signs advising golfers not to operate golf carts in the rough,’’ which signs “were readily visible * * * to the sight of plaintiff herein, * * (Emphasis ours.) In an earlier paragraph appellee had pleaded a general denial. This put the burden on appellant to present evidence in support of all allegations necessary to support his cause of action except where denial under oath is required. An affirmative defensive pleading following a general denial is not a judicial admission. Mountain States Mutual Casualty Co. v. Hamilton, 401 S.W.2d 303, 305 (Tex.Civ.App., Eastland 1966, no writ) ; Straffus v. Barclay, 147 Tex. 600, 219 S.W. 2d 65 (1949); Trevino v. American Nat. Ins. Co., 140 Tex. 500, 168 S.W.2d 656 (1943); Rule 92, Texas Rules of Civil Procedure.

5. Appellee alleges in its motion that the record shows that the cart was registered in the name of appellant or of his guest or of both, which makes each of them liable for the negligence of the other. The evidence is inconclusive on the question. Anyway, we do not consider the matter decisive in determining the propriety of the instructed verdict.

6. Next appellee alleges in its motion that the rules, regulations and bylaws of the Riverlake Country Club forbade the operating of a golf cart in the rough and that appellant saw signs warning golfers not to do so. The rules, regulations and bylaws were not introduced in evidence. On cross-examination appellee unsuccessfully sought to elicit testimony from appellant that the regulations so provided and that he knew of and saw such signs.

7. Appellee in its motion contends that the only testimony of causal connection between appellant’s injury and the cart’s striking the stump is the history given by appellant to Dr. Loiselle. We do not agree. Appellant testified that upon landing on the ground after being thrown from the cart he experienced pain in his back. He had never had pain in his back before the accident. This pain persisted until he finally went to Dr. Loiselle several days after the accident. A long continued treatment by Dr. Loiselle ensued, lasting up to the time of the trial. The treatment included two major operations. It is true that Dr. Loiselle testified that appellant had a congenital condition in his back, but that such condition is often aggravated by an injury as indicated in this case by appellant’s testimony that he had never experienced pain in his back prior to the accident.

8. Appellee further alleges in his motion that appellant admits he did not keep a proper lookout, did not protest the operation of the cart in the rough, or ask permission to get off the cart. Appellant did not admit he failed to keep a proper lookout. He testified that if he saw the stump at all before the accident it was not in time to suggest anything to> the person operating the cart.

The court, apparently on its own motion, seems to have based its decision on still another ground. Pointing out that the defendant is a corporate defendant, the court stated that the testimony did not show any connection between said corporate defendant and the accident. It is true that throughout the trial the witnesses referred to the defendant as “Riverlake Country Club.” They did not call defendant by its full corporate name: “Riverlake Country Club, Inc.” But in appellant’s petition it was Riverlake Country Club, Inc. who was named as defendant, who was served with citation and who filed its written answer. Appellant’s attorney himself referred to the party served with citation by the sheriff merely as “Riverlake Country Club.” It seems obvious that the “Riverlake Country Club” mentioned by the witnesses must be identified with the corporate defendant who was designated in appellant’s petition, who was served with citation and who filed its written answer. See McLellan Stores Co. v. Lindsey, 157 S.W.2d 1013 (Tex.Civ.App., Eastland 1941, writ ref’d w. o. m.).

Appellant’s first point of error is sustained.

In his second point on appeal appellant contends that the court erred in failing to allow him to reopen the testimony after he had rested his case. The court, in sustaining appellee’s motion for directed verdict, had stated that there was no connection shown between the corporate defendant and the premises where the plaintiff was injured. The following proceedings then took place:

“MR. BARBER: Your Honor, could I move the Court to ask the Court for Plaintiff to re-open—
“THE COURT: I’ve already announced my decision, sir. You had — ■ Before I announced my decision, and told you the basis on it, that was one thing, but once I announced it — I’m sorry, but under the Rules, we can’t backtrack.”

We think that the court was mistaken in holding that “under the rules we can’t backtrack.” The reason given by the court was that his decision to sustain the motion for instructed verdict had already been announced. Rule 270, T.R.C.P., plainly provides that the court may permit additional evidence to be offered where it clearly appears to be necessary to due administration of justice — provided no evidence on a controversial issue should be received “after the verdict of the jury.” In this case the verdict of the jury had not been received.

It is well established that ordinarily the question of reopening a case for the reception of additional evidence is discretionary. But it is also well established that the discretion is to be liberally exercised. There are circumstances when a refusal to allow a reopening is an abuse of discretion. The refusal then constitutes prejudicial error. Hill v. Melton, 311 S.W.2d 496, 500 (Tex.Civ.App., Dallas 1958, writ dism’d); State v. Parkey, 295 S.W.2d 457, 462 (Tex.Civ.App., Waco 1956, writ ref’d n. r. e.); Stroud v. Temple Lumber Co., 284 S.W.2d 909, 913 (Tex.Civ.App., Beaumont 1955, writ ref’d n. r. e.) ; Ledbetter v. Martinez, 12 S.W.2d 1042 (Tex.Civ.App., Austin 1929, no writ).

However, in this case we cannot reach the question whether there was an abuse of discretion in the court’s refusal. Appellant did not make the showing required on motion to reopen. He did not show or offer to show by bill of exception, or otherwise, who would testify, or that the witness was available, or what his testimony would be. Mosesman v. Robertson, 301 S.W.2d 279, 283 (Tex.Civ.App., Waco 1957, no writ); Stroud v. Jones, 295 S.W.2d 491, 497 (Tex.Civ.App., Beaumont 1956, writ ref’d n. r. e.) ; 56 Tex.Jur.2d 468. Appellant’s second point of error is overruled.

In his third point appellant complains of the court’s refusal to admit an aerial photograph into evidence. Appellant testified that the photograph accurately depicted the manner in which hole No. 18 at Riverlake Club was laid out on the date appellant was injured. Appellant was familiar with the scene depicted, being a member of the club and having played the golf course many times. Objection was made by appellee that the picture had not been properly identified. The court himself then asked appellant if he had been present when the photograph was made and whether appellant had “ever viewed it from this angle.” After the witness had answered both questions in the negative the objection was sustained.

We think it was error to exclude the picture on the grounds stated by the court. For a photograph to be admissible it is not necessary that the verifying witness be the photographer, or that he have any knowledge concerning the taking of the picture, or that he have occupied the same position occupied by the photographer when the picture was taken. It is only necessary that the witness know the scene and testify that the picture correctly represents the facts. Vardilos v. Reid, 320 S.W.2d 419, 423 (Tex.Civ.App., Houston 1959, no writ) ; Dofner v. Branard, 236 S.W.2d 544 (Tex.Civ.App., San Antonio 1951, writ ref’d n. r. e.) ; McCormick and Ray, “Texas Law of Evidence” (2d Ed.), Section 1465.

Having sustained appellant’s first point of error we have concluded that the judgment in this case should be reversed. Therefore we deem it unnecessary to discuss the question of the relevancy of the excluded photograph, or to pass on appellant’s third point of error, especially since this situation probably will not recur in another trial of the case.

The judgment of the trial court is reversed and the cause remanded for another trial.

       The court’s statement was as follows:
      “THE COURT: The Defendant’s motion for instructed verdict is sustained, and the case will be taken away from the Jury in view of there being no fact issues to be submitted to the Jury, and judgment will be entered for the Defendant.
      “MR. BARBER: Would you note Plaintiff’s exception—
      “THE COURT: Yes, sir.
      “MR. BARBER: — and notice of appeal?
      “THE COURT: Plaintiff excepts.
      “There is absolutely no indication or anything in this record of the ownership or control of the particular terrain or part of which the Plaintiff has complained. The Defendant is a corporate Defendant, and I’ve been watching the evidence very closely. There’s no connection at all — nothing in the evidence. Therefore, there’s nothing to connect this corporate Defendant with what transpired out there, insofar as this record is concerned.” (Emphasis ours.)


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    FIREMEN’S INSURANCE CO. OF NEWARK, NEW JERSEY, Appellant, v. Jesse L. BURCH et ux., Appellees.
    No. 11587.
    Court of Civil Appeals of Texas. Austin.
    March 20, 1968.
    Rehearing Denied April 10, 1968.
    Small, Herring, Craig, Werkenthin & Shannon, C. C. Small, Jr., Austin, for appellant.
    Garey, Colbert & Kidd, Joe Colbert, Austin, for appellees.
   HUGHES, Justice.

This is a declaratory judgment suit in which appellees, Jesse L. Burch and wife, Dorothy Burch, seek to determine the duties and liability, and extent of liability, of Firemen’s Insurance Co. of Newark, New Jersey, appellant, under a policy of insurance issued by it to Larry J. Buttler for damages sustained by Dorothy Burch from injuries received by her as a result of a collision between an automobile in which she was a passenger and a pickup truck being driven by Sarah Buttler, the wife of Larry Buttler.

The trial court was specifically asked to determine whether Firemen’s under its policy and facts now to be stated is required to defend a suit brought by Mr and Mrs. Burch against Mr. Buttler and the former Mrs. Buttler (now Mrs. Cromier) involving the mentioned collision and whether Firemen’s is required to pay any judgment, within policy limits, which might be obtained by the Burchs in such suit.

The trial court rendered judgment that Firemen’s was obligated to defend Larry Buttler and to pay any judgment which might be rendered against him to the full extent of the policy coverage, but that it was not required to defend the former Mrs. Buttler or to pay any judgment which might be rendered against her in the Burch suit.

The insurance policy in suit was bought during the marriage of Mr. and Mrs. But-tler with community funds. About the middle of October, 1965, Mr. and Mrs. Buttler separated and never resumed marital relationships. She testified that she never intended to return to her husband after the separation. She filed suit for divorce in November, 1965, and the divorce was granted in April, 1966. A property settlement was included in the divorce decree which provided that Mr. Buttler received as his portion of the community estate community assets of the value of $1,888.27, and assumed community indebtedness of $680.50.

Mr. and Mrs. Buttler also agreed:

“Larry J. Buttler agrees to pay all community debts that have accrued to date hereof, including all hospital, doctor and medical bills, provided, however, Sarah Louise Courtney Buttler agrees that all insurance benefits payable at the date hereof as a result of an automobile accident in December, 1965, shall be and remain the property of Larry Jack But-tler, and further agrees to execute all documents required to effect the provisions of this paragraph.”

On December 1, 1965, Mrs. Buttler while driving her father’s pickup, with his consent, collided with the car in which Mrs. Burch was riding. Mrs. Burch was seriously injured and damages for such injuries are estimated to be in excess of $10,000.00.

The insurance policy in suit is in capital letters, declared to be a “Family Automobile Policy.” It contains these provisions which are relevant to this controversy:

“ ‘Named insured’ means the individual named in Item I of the declarations and also includes his spouse, if a resident of the same household.”

The liability of the insurer, subject to limitations in amounts, was “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of” matters not in dispute.

The policy also provides, “Bankruptcy or insolvency of the insured or of the insured’s estate shall not relieve the company of any of its obligations hereunder.” The policy coverage is $10,000.00 for bodily injury to each person injured.

Appellant’s first point is that the trial court erred in holding that Larry Buttler was “legally obligated” to pay damages resulting from a tort of his wife, not participated in, aided or abetted by him.

Appellant cites Turner v. Turner, 385 S.W.2d 230, Tex.Sup.Ct, 1964, and other decisions which are to the effect that the separate property of the husband is not liable for the torts of the wife in which the husband did not participate. Turner was an alienation of affection suit brought by Genevieve Turner against Mozelle Corley and husband Pat Corley. The jury found that Mozelle Corley had alienated the affections of Harry Turner, the husband of Genevieve Turner. Regarding the liability of Pat Corley, the Court stated:

“The alienation of the affections of Harry A. Turner, caused by the conduct of Mozelle Corley Turner, is a tort against plaintiff Genevieve J. Turner. Pat Corley is not individually liable for the torts of his wife not aided and abetted by him. The community estate of Mozelle and Pat Corley would be liable. Art. 4613, Vernon’s Ann.Civ.St.”

Art. 4613, Vernon’s Ann.Tex.Civ.St., cited by the Court provides in part:

“The separate property of the husband shall not be subject to the debts contracted by the wife, either before or after marriage, except for necessaries furnished herself and children after her marriage with him, nor for torts of the wife.”

William O. Huie, Professor of Law, University of Texas Law School, in his commentary on The Community Property Law of Texas, page 1, vol. 13, V.T.C.S. (1960) states, “The common-law rule that the husband is liable for the wife’s torts has long been established law in Texas.” Cited to support this statement are McQueen v. Fulgham, 27 Tex. 463, 464 (1864) and Zeliff v. Jennings, 61 Tex. 458 (1884), which authorities unquestionably sustain Mr. Huie. The McQueen case was cited on this point with approval in Whitney Hardware Company v. McMahan, 111 Tex. 242, 231 S.W. 694.

The case of Scott v. Brazile, 292 S.W. 185, Tex.Comm. of Appeals, 1927, is directly in point. There the wife committed a forgery of which the husband had no knowledge. There was a general judgment against against both husband and wife. We quote from the opinion of the Court:

“Whenever a married woman commits a tort, she, as well as her husband, is liable for the damage resulting to another therefrom. McQueen v. Fulgham, 27 Tex. 463, 467; Zeliff v. Jennings, 61 Tex. 458, 470. * * *
The judgment rendered by the trial court for said sum of $6,531.31 in favor of the commissioner of insurance against M. D. Brazile and Annie Brazile is a general one, and does not, by its terms exclude the separate property of M. D. Brazile from the effects thereof. Under the provisions of article 4613, Revised Statutes of 1925, the separate property of the husband is not liable for the torts of the wife in which he does not participate. The judgment of the trial court, therefore, should be so reformed as to relieve the separate property of M. D. Brazile from the operation of such judgment in favor of the commissioner of insurance.”

To the same effect is Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063 (1939), where a joint judgment against the husband and wife based on the sole negligence of the wife was “reformed as to relieve the separate property of (the husband) from (its) operation.”

It is to be noted that in neither of these cases was the monetary judgment against the husband altered.

In Campbell v. Johnson, 284 S.W. 261, Tex.Civ.App. Dallas, affirmed 290 S.W. 526, Tex.Comm. of App., the Court stated:

“Under the provisions of article 4613 (4621) (2967) (2851), Rev.St.1925, the separate property of the husband cannot be subjected to the payment of damages occasioned by the torts of the wife. Notwithstanding the provision, his common-law liability for her torts remains undisturbed by any statute. It follows therefore that this liability may be enforced by a suit against him without the necessity of joining the wife, and their common estate may be subjected to the payment of any judgment obtained against him.”

In affirming this decision the Commission of Appeals held:

“The Court of Civil Appeals correctly held that the separate property of the husband cannot be subjected to the payment of damages occasioned by the torts of the wife. And, upon appropriate pleadings or request, seasonably filed, the judgment should exempt his separate estate. See Jackson v. Dickey (Tex.Com. App.) 281 S.W. 1043. But in this case the husband sought no such exemption in the trial court in his motion for a new trial. He cannot first raise the issue in the Court of Civil Appeals as he has attempted to do in his application here.”

Our interpretation of Art. 4613 is that it does not affect the common law rule that a husband is liable for the torts of his wife but that its only effect, in this respect, is to exempt or relieve the separate property of the husband from liability for the torts of his wife.

Since there is no express statutory authority for changing the common law rule of liability of the husband for the torts of his wife, we agree with the principle stated in McQueen, supra, that “it would be a stretch of judicial authority to hold that the common law responsibility attaching to him (the husband) for the acts of the wife is by mere implication abolished.”

We overrule appellant’s first point and hold that Larry Buttler was legally obligated, within the terms of the insurance policy here involved, to pay damages occasioned by the tort of his wife even though he, in no way, participated therein.

Appellant’s second point is that the trial court erred in not holding that its liability should be limited to the value of the husband’s interest in the community estate of Mr. and Mrs. Buttler.

We overrule this point. To hold, as requested, would be to equate “liability” with “collectibility.” These terms are not synonymous. They are not to be equated. The authority, if any is needed, for these conclusions is the policy itself which provides that solvency of the insured shall not relieve appellant of any obligation it has under it. The fact that there is not sufficient property now in sight and subject to the payment of the Burch claim merely means that as to such claim the insured, Mr. Buttler, is insolvent.

In First Nat. Bank of Eagle Lake v. Robinson, 124 S.W. 177, Tex.Civ.App., San Antonio, n. w. h., “insolvency” was defined “to be the absence of property of the debtor out of which a debt may be made by execution.” That this is generally the law see cases cited under heading “Sufficient property accessible to legal process,” p. 455, vol. 21A, Words and Phrases.

It follows, we believe, the fact that the Burchs could not collect their judgment for $10,000.00 or more, if obtained, out of the community assets of the Buttlers is inconsequential under the express terms of the policy issued by appellant.

Appellees have a crosspoint to the effect that the trial court erred in holding that the spouse of Mr. Buttler was not an insured under the policy. The policy provided, as shown above, that the word “insured” included the wife of Mr. Buttler “if a resident of the same household.”

The evidence is undisputed that Mr. and Mrs. Buttler separated about mid-October, 1965, and they never again lived together under the same roof. When the collision involved here occurred Mrs. But-tler was living in a small house on Avenue A in Austin and Mr. Buttler was living in an apartment about ten miles away on Mojave Drive. Mrs. Buttler never intended to return to her husband from the time she separated from him, however, Mr. But-tler attempted to effect a reconciliation from October, 1965 until April, 1966. He, during the period of separation, accepted his responsibility to provide for his wife and child.

We cannot hold, as a matter of law, that, under the above circumstances, Mr. and Mrs. Buttler, on December 1, 1965, were residents of the same household.

The judgment of the trial court is affirmed.

Affirmed.

      . This is as the statute read prior to its amendment in 1967.

      . Art. 1, V.T.O.S., provides:
      “The common law of England, so far as it is not inconsistent with the Constitution and laws of this State, shall together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the Legislature.”


author: TUNKS, Chief Justice.

text:
    GROUP HOSPITAL SERVICE, INC., Appellant, v. Arthur Frank BARRETT et al., Appellees.
    No. 48.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Feb. 21, 1968.
    Rehearing Denied March 20, 1968.

      Richard B. Miller, Perry O. Barber, Jr., Baker, Botts, Shepherd & Coates, Houston, for appellant.
    Tom Alexander, Jonathan Day, Butler, Binion, Rice, Cook & Knapp, Houston, for appellees.
   TUNKS, Chief Justice.

This suit involves the construction of three hospital service contracts. One plaintiff, Dr. Arthur Frank Barrett, a radiologist, is the holder of an individual direct pay membership under a hospital service contract designated as being of the “three hundred series.” The plaintiffs, Shirley Patrick and Ruth V. Keck, are employees of Pasadena General Hospital and, as members of that group of employees, are participants in a group hospital service contract. The plaintiffs, Pricilla Gibbs, Anna Beth Campbell, and Dr. Vincent Collins, also a radiologist, are employees of Baylor University School of Medicine in Houston, and, as such employees, are beneficiaries under a group hospital service contract covering such employees. Each of the three contracts in question contains somewhat different language as will be hereinafter noted.

In all of the contracts in question the defendant, Group Hospital Service, Inc., agreed to furnish the hospital service. Group Hospital Service, Inc., is popularly called Blue Cross and will be sometimes referred to herein by that name. Blue Cross was the defendant in the trial court and is the appellant here. Blue Cross is a non-profit corporation organized under Vernon’s Annotated Texas Statutes, Insurance Code, Article 20.01.

The plaintiffs in their petition seek a declaratory judgment under Article 2524 — 1, Vernon’s Ann.Tex.Civ.St. They maintained the suit not only as individuals, but also as representatives of classes “consisting of all other members of Blue Cross who hold membership agreements with similar provisions regarding X-ray services as are included” in the contracts here in question.

The plaintiffs presented to the trial court a motion for summary judgment. In response to that motion the trial court rendered judgment construing the contract of which the plaintiff, Dr. Barrett, was a beneficiary — the “three hundred series” contract — and the contract under which the employees of the Baylor University School of Medicine were beneficiaries as contended for by the plaintiffs, and construing the contract under which the Pasadena General Hospital employees were beneficiaries consistent with the contentions of Blue Cross. Blue Cross has appealed from that portion of the judgment adverse to its position.

The langauge of the contracts which is in dispute has to do with the furnishing of X-ray services. The language of the “three hundred series” contract provides that Blue Cross shall furnish room accommodations, etc., in a hospital together with “all other usual hospital services necessary to the treatment of the patient, ordered by the attending physician, for use while in the hospital — except blood and plasma, but including transfusion services and blood typing and cross-matching of patient and donor.”

In the contract covering the Baylor University School of Medicine employees, Blue Cross is obligated to furnish room accommodations, etc., and “X-ray examinations, up to $40.00 each period of hospital confinement.” Such service, under this contract, is to be furnished “only when supplied by the hospital, at the request of the attending physician, and used by the patient while confined to the hospital.”

Depositions of all of the plaintiffs and of Mr. Walter R. McBee, Executive Director of the defendant, Blue Cross, were taken. Affidavits of two radiologists were filed in support of the motion for summary judgment. The evidence shows that a number of contractual relationships creates the background of this controversy. As above noted, Group Hospital Service, Inc. (Blue Cross) is a non-profit corporation. As such, it enters into agreements to furnish certain designated hospital services to various groups. Some of the groups consist of the employees of specified employers. In those situations, a basic agreement is made by Blue Cross and the employer and the individual employees by various forms of sub-agreements, become members participating in the agreement to furnish hospital services. The “three hundred series” contract in which the plaintiff, Dr. Arthur Frank Barrett, is a participant, is somewhat different. Dr. Barrett is not a participant as an employee of an employer who is a party to a basic contract. He, rather, is designated a “direct pay member” which distinguishing terminology is based on the fact that under the arrangement to furnish hospital service to specified employee groups, it is usually the employer who pays the consideration to Blue Cross. Whether the employer does or does not, in turn, collect from his employees the money to be used in paying that consideration, depends upon the contract of employment. If the employer does so collect from his employees, then the employees pay Blue Cross indirectly. Dr. Barrett, not being such an employee, is a member of a group contracting for hospital service and who pays directly to Blue Cross the consideration for that service. These agreements are, generally, non-cancellable by Blue Cross. That is, the beneficiary member can, subject to some conditions not here significant, maintain his rights to benefits so long as he continues to pay for them. The charges to members are, however, subject to adjustment from time to time. Since Blue Cross is a non-profit corporation, those adjustments are, theoretically, made in such amounts as to make the income from members equal to the amount paid out by the corporation. Our economy being what it has been for the past several years, those adjustments, generally, have been upward.

These contracts are referred to as agreements by Blue Cross to furnish hospital service, and the beneficiaries thereunder are referred to as members. In fact, the organization of such a corporation as Blue Cross, and the supervision of its operation, are provided for by Chapter 20 of the Texas Insurance Code, V.A.T.S. The contracts here in question are commonly referred to as group insurance policies and the members are called insureds. We will, for the sake of simplicity, sometimes use that terminology in this opinion.

Another arrangement that is significant is that between Blue Cross and many hospitals. Those hospitals with whom Blue Cross makes contracts are referred to as “Member Hospitals.” Those are the hospitals, generally, through which Blue Cross furnishes the hospital services in discharge of its obligation to so furnish hospital services to the members of the various groups with which it has contracted. (The agreements between Blue Cross and the groups of beneficiaries also makes some provisions for furnishing services at “nonmember hospital,” but a discussion of those provisions is not necessary to this opinion.) The provisions with which we are most concerned of those agreements between Blue Cross and the member hospitals are the provisions which fix the amount of the charges by the hospital for the various specified services to Blue Cross members (insureds). In those agreements, the hospitals agreed to furnish various specified services to Blue Cross members at agreed on charges. Those agreements provide that the hospital, having furnished the services to a Blue Cross member, will bill Blue Cross for those services.

Insofar as those contracts between Blue Cross and its member hospital call for the furnishing of services that can be and are furnished by the hospitals and its employees, no problem here exists. Services in that category would include rooms, meals, drugs, nursing care, and so forth. But some of the services provided for in the contract are of such a nature that they can be performed, at least in part, only by a licensed physician. X-ray services to be furnished by the hospital fall within that category. Employees of the hospital who are not licensed physicians can perform some functions in exposing and developing the X-ray film. The charge by the hospital to Blue Cross for X-ray service includes a charge for those services as well as charges for the film itself and for the use of hospital X-ray equipment. But only a licensed physician can read and interpret the X-ray film. Thus, when a member hospital agrees to furnish Blue Cross members X-ray service while that member is confined to the hospital, it has agreed to furnish a service in which a licensed physician must participate.

In discharge of this contractual obligation to Blue Cross and its members, the member hospitals have established a practice from which the other contractual arrangement relevant to this dispute arose. The member hospital contracted with licensed physician-radiologist to furnish that portion of the X-ray service which was subject to being performed only by a licensed physician. Under those contracts between the hospital and the radiologist, the hospital paid the physician for his professional service and then billed Blue Cross for the entire amount of the charge provided for in its contract with Blue Cross for the X-ray service in question. The hospital bill to Blue Cross was based on an agreed charge that covered not only the function of the hospital employees, the X-ray film, and the use of the hospital X-ray equipment, but also compensation to the hospital for what it had paid to the radiologist for his professional service.

In time, the radiologists became dissatisfied with this arrangement. Some of them discontinued their agreements with the hospitals. For example, one such radiologist had such an agreement with Heights Hospital in Houston, Texas. Heights Hospital was a member hospital who had an agreement with Blue Cross to furnish X-ray service to its members when they were confined in that hospital and when such service was ordered by the attending physician. After the termination of the agreement between the radiologist and Heights Hospital, the hospital was still obligated under its contract with Blue Cross, to furnish X-ray service. Since the participation of a licensed physician was necessary in discharging that obligation, Heights Hospital would, when X-ray service was ordered by the physician attending a Blue Cross member confined therein, call on a licensed physician to participate in that service. But since the hospital had no agreement to pay the physician, he, the physician, would submit his bill directly to the patient — the Blue Cross member. The patient-member, being entitled to have that service by Blue Cross, would seek either to have the radiologist bill paid by Blue Cross, or reimbursement if he paid it himself.

(The evidence showed that, after Heights Hospital had abandoned its contract with the radiologist to pay them for X-ray services to Blue Cross members, Blue Cross revised its contract with the hospital by reducing the schedule for charges for X-ray services by about 25%. This was because the bills for X-ray services from the hospital to Blue Cross no longer included what the parties called “the professional component.”)

Some incidental questions have arisen out of this situation. There is some dispute as to whether the contracts between the hospitals and the radiologists created an independent contractor situation or an employer/employee relationship. There is a suggested question as to the illegality of incorporated hospitals performing professional medical services. There is also a question of professional ethics involved in the manner in which radiologists acting under contracts with hospitals, rendered their services. We feel that the disposition we make of this case does not require a discussion of those questions.

After the radiologists had quit performing services under the contractual arrangements with the hospitals and had started billing the patients directly, Blue Cross began to receive from its members claims for direct payment for X-ray services. On June 27, 1966, Blue Cross wrote a letter addressed to “all Texas physicians and Blue Cross member hospitals.” It was in that letter announced that a conclusion had been reached by Blue Cross “that many Blue Cross contracts, providing benefits for such (specialty) services when ordered by the attending physician and supplied by the hospital, do not have any benefits for such specialty services when provided by and billed directly by the physician. Benefits under such contracts cannot be split or divided between the hospital and the physician. Only the hospital benefits can be paid and no payment can be made to the physician under these contracts.”

Blue Cross declined to pay those claims which were submitted to it directly by the member rather than by the hospital even though those claims were for X-ray services performed at the request of the attending physician and at the hospital while the member was confined as a patient at a member hospital. To the affidavit of Dr. Leonard C. Doubleday, a radiologist, filed in support of plaintiff’s motion for summary judgment, there are attached 20 copies of letters written to Blue Cross members by Blue Cross refusing payment under such circumstances.

The radiologists were, of course, seriously affected by this development. ' It is obvious that the collection of their fees for their services is much more certain if the patient is the beneficiary of a contract in the nature of an insurance policy providing for the payment of those fees by an insurer. It is in the protection of that interest that they have caused the institution of this suit by the plaintiffs.

The defendant appellant has taken three basic positions in its attack upon the trial court’s judgment. It is claimed that the named plaintiffs are not proper representatives of the classes they purport to represent so that the maintenance of this suit as a class action under Rule 42, Texas Rules of Civil Procedure, is improper. It is the position of the defendant that no justiciable controversy exists as between the plaintiffs and the defendant so as to give the trial court jurisdiction to entertain a suit for declaratory judgment under Article 2524-1, V.A.T.S. Finally, the appellant contends that the trial court commit-ed substantive error in construing the above quoted language of the Blue Cross hospital service contracts. We will discuss the various positions of the appellant in the order listed, because our disposition of each of them, in that order, will have a bearing on our consideration of the others.

The conditions required by Rule 42 for the maintenance of a class action exist here. The persons constituting the class are so numerous as to make it impractical to bring them all before the court. There is a common question of law in the construction of the contracts. While we do not believe it necessary to the disposition of this case to decide which of the subsections of Rule 42 is applicable, we are of the opinion that this is a “spurious” class action provided for in Rule 42(a) (3). 1 McDonald, Texas Civil Practice 338, Sec. 3.34.1; 3 Moore’s Federal Practice 3456, Sec. 23.11.

The determination that this is a situation wherein a class action may properly be maintained, does not, however, answer all of the questions with which we are here confronted in this phase of this appeal. There remains the question as to whether the named plaintiffs are proper representatives of the classes as required by Rule 42 to the extent that the interests of the other members of the classes will be fairly insured of adequate representation. That is a matter generally addressed to the sound discretion of the trial court, but the trial court’s ruling, nevertheless, subject to review. Richardson v. Kelly, 144 Tex. 497, 191 S.W.2d 857; Allred v. Heaton, Tex.Civ.App., 336 S.W.2d 251, ref., n.r.e.

We have recited at length the background from which the controversy here involved arose. We have deemed that recitation necessary as relevant to the question of the propriety of the representation by these named plaintiffs of the classes which they purport to represent. The evidence shows that every one of these plaintiffs was either a radiologist, an employee of a radiologist or one whose work was closely connected with that of a radiologist. The expense of the lawsuit is being borne by the radiologists. The evidence also shows that no one of these named plaintiffs has ever presented to and had rejected by Blue Cross, a claim for reimbursement for X-ray service performed upon him by a radiologist while confined to a hospital and which X-ray service was ordered by his attending physician.

The contractual relationship between Blue Cross and its member hospital, resulted in placing a limitation upon the fees that could be charged by the hospital for X-ray services performed by Blue Cross members while confined to those hospitals. If Blue Cross is to be required to pay for X-ray services performed by radiologists to its members while confined in member hospitals on the basis of direct bills submitted either by the member of Blue Cross or his radiologist, such contractual limitation obviously is not applicable to the amount which Blue Cross would be required to pay. It has also been noted that the charges to be paid by Blue Cross to its members for the hospital services furnished is subject to periodic adjustment, that Blue Cross operates on a non-profit basis and that any increase in payments made by Blue Cross would result in an upward adjustment of the charges made by it to its members.

Under those circumstances, we think it is highly probable, in fact, almost certain, that some of the members of the class whom the named plaintiffs seek to represent, anticipating an increase in the charge to be made to them, would contend that Blue Cross should not be required, under its agreements, to pay any other bills for X-ray services than those billed to it directly by the hospital in accordance with the contractual limitations provided for such billing. There, consequently, exists a conflict between the general members of the class, or some of them, and these named plaintiffs. Under those circumstances we hold that the named plaintiffs were not proper representatives of the general members of the class whom they purport to represent. Allred v. Heaton, supra.

These plaintiffs, however, maintain this action not only as the representatives of a class, but also individually. Thus, even though we hold that the action is not properly maintainable as a class action because the named plaintiffs are not proper representatives of the classes sought to be represented, there remains to be disposed of that portion of the litigation wherein they sued individually for a declaratory judgment construing the contracts. It is in that phase of the case that the question becomes relevant as to whether or not a justiciable controversy exists between these plaintiffs in their seeking individual relief and Blue Cross.

As noted above, not one of the named plaintiffs has ever had a claim for reimbursement for X-ray service furnished him while confined to a hospital at the request of his attending physician. Certainly no such request for reimbursement had ever been rejected by Blue Cross. It is true that the affidavit of Dr. Doubleday submitted in support of plaintiff’s motion for summary judgment, showed that other members of Blue Cross had presented such claims and had had them rejected by Blue Cross. But we have held that these named plaintiffs may not properly maintain this action as representatives of the classes consisting of other members of Blue Cross. We therefore cannot look to the controversies, if any, between other members of the class and Blue Cross to determine the existence of a justiciable controversy between these plaintiffs and Blue Cross. We hold that under the circumstances, no justiciable controversy exists as between these named plaintiffs and Blue Cross. California Products, Inc. v. Puretex Lemon Juice, Inc. 160 Tex. 586, 334 S.W.2d 780; Reuter v. Cordes-Hendreks Coiffures, Inc., Tex.Civ.App., 422 S.W.2d 193, n.w.h.; Allred v. Heaton, supra; 26 C.J.S. Declaratory Judgments § 28, p. 104.

To demonstrate the futility of undertaking to identify a possible controversy between these named plaintiffs and Blue Cross, it should be noted that should such a claim for reimbursement ever arise, as between these named plaintiffs and Blue Cross, it would be a claim for money payment under the terms of the contracts in question. We cannot, under the present status of that contingent controversy, determine even that it would be one within the jurisdiction of the district court. In fact, it is more than probable that any one claim of any of the named plaintiffs, or even any combined claims of all of them, would be for an amount of money less than $500.-00, the lowest jurisdictional limit of the district court in which this suit was filed.

Since we have held that these plaintiffs could not properly maintain this action as representatives of the classes whom they sought to represent, it was necessary in order for the trial court to have jurisdiction over the suit maintained by these plaintiffs in their individual capacities for declaratory judgment, that there exist a justi-ciable controversy between these plaintiffs and the defendant, Blue Cross. We have held that no such justiciable controversy existed, therefore, the trial court did not have jurisdiction over this lawsuit by these plaintiffs in their individual capacities. Since the trial court had no jurisdiction, we have none. Orange Independent School Dist. v. West Orange Independent School Dist., Tex.Civ.App., 390 S.W.2d 81, writ ref., n.r.e.

Our conclusion that there is no justi-ciable controversy, of course, prevents our consideration of the substantive question presented — the construction of the language of the contracts in question.

The appellant, in its brief, contends that the entire judgment of the trial court, including that portion of such judgment favorable to appellant, should be vacated and the entire case dismissed. In view of that request by appellant and our conclusions above stated, the judgment of the trial court is vacated and the case is dismissed.


author: WALTER, Justice.

text:
    PIONEER FINANCE & THRIFT CORPORATION et al., Appellants, v. Wilbur E. ADAMS, Appellee.
    No. 4208.
    Court of Civil Appeals of Texas. Eastland.
    March 15, 1968.
    Rehearing Denied April 5, 1968.

      Andress, Woodgate & Condos, William Andress, Jr., Estep, Waters, Benthul & Mc-Crea, Lynn Estep, Jr., Dallas, for appellants.
    Fritz, Vinson & Turley, Edward C. Fritz, Dallas, for appellee.
   WALTER, Justice.

Wilbur Adams and his wife recovered a judgment against Pioneer Finance & Thrift Corporation, doing business as Termplan and Industrial Finance & Thrift Corporation, on an “unreasonable collection efforts” case and the defendants have appealed.

The jury found that Termplan made unreasonable collection efforts against Mr. and Mrs. Adams; that Termplan made collection efforts against Adams and his wife with a purpose of causing mental or emotional pain and suffering; that Termplan made unreasonable collection efforts against Adams and his wife with reckless disregard of their health and welfare; that Termplan committed a trespass upon Mr. and Mrs. Adams’ property on February 6, 1963, and that such unreasonable collection efforts or trespass by Termplan were a proximate cause of mental or emotional pain and physical illness of Mr. and Mrs. Adams. The jury awarded Mr. and Mrs. Adams $2,500.00 each for mental or emotional pain and physical illness caused by such unreasonable collection efforts or trespass. The jury also found that in making such unreasonable collection efforts or trespass Termplan acted with malice toward Mr. and Mrs. Adams and awarded each $2,250.00 exemplary damages.

Adams testified substantially as follows:

My name is Wilbur Adams and I was formerly employed by Mrs. Baird’s Bread Company. I made a deal with Cliff Automotive Service to make some repairs on my car. The garage man took me to Termplan’s office when the loan papers were drawn and the garage man and I received a check for $283.00 to be paid in twelve monthly installments of thirty dollars. This was in the Fall of 1962. When I became delinquent on this contract, Term-plan sent letters and made telephone calls at night. Quinnbar is the name of one person who called. When I was delinquent I would have an average of about thirty calls per week. Quinnbar called five times one night and the last time he called he said: “You’re nothing but a deadbeat and I should come and clean the whole town up with your hide.” That is the only time he ever threatened me with personal violence. He also threatened to turn me over to the Retail Merchants Association, ruin my credit and take my automobile. These calls would last from three to five minutes. I received several calls from Termplan where I worked.

Sometime in February 1963, I went to my driveway for my car and it was gone. I reported my car stolen to the police. I found my car at St. John’s Automobile Recovery. I went to the bank and purchased a Cashier’s check for the balance of my account with Termplan and recovered my car. Mr. Adams was asked the following questions and gave the following answers:

“Q. Will you state the facts, please, Mr. Adams, as to during the time you were being contacted by Termplan you experienced any pains or discomfort or physical illnesses ?
A. Yes, sir, I experienced a lot of pain and physical discomforts as frequent as the calls were made at my home.
Q. Now, approximately when, in relation to the contacts that were being made, when did you experience these various illnesses or whatever you will describe?
A. At night after supper when the ’phone would ring, just afraid to pick up the ’phone, scare you out of the chair as to whether that was Termplan calling again, knowing I didn’t have the money to pay, sick at my stomach, nervous all the time. In my work I made a lot of errors worrying on how I could get these payments made.
Q. You say you were sick at your stomach, can you tell us a little more about— describe a little more what kind of sickness you had at your stomach?
A. I experienced sickness and pains in the stomach and vomiting.
Q. When did you experience any vomiting, Mr. Adams?
A. It was on one occasion after they had talked to me at night on the telephone.”

Appellants’ first point is that the court erred in submitting issue number four because the mortgage signed by Adams, authorized it to repossess the car. Issue four inquired if Termplan committed an unauthorized trespass upon the Adams’ property on February 6, 1963, being the date of the repossession by appellants. Appellants objected to the submission of such issue because the evidence conclusively establishes that Adams authorized the repossession of his automobile upon default.

In Eichman v. Highland Park State Bank, Tex.Civ.App., 345 S.W.2d 352, (writ ref., 1961), this court said:

“The Courts of Texas, since the case of Singer Sewing Machine Co. v. Rios, 96 Tex. 174, 71 S.W. 275, 60 L.R.A. 143, have recognized that a provision in a chattel mortgage which authorizes and empowers the holder to take possession of mortgaged property upon the mortgagor’s default, and sell same at public or private sale is valid.”

We hold there was no unauthorized trespass on the Adams’ property by appellants in repossessing his automobile.

No objections were made to the damage issues by appellants. The damage issues asked what amount of money would compensate Mr. and Mrs. Adams for their mental or emotional and physical illness proximately caused by the unreasonable collection efforts or trespass of appellants. The court’s charge authorized the jury to consider trespass in answering the damage issues. Appellants cannot for the first time on appeal object to the jury’s consideration of trespass in answering the damage issues. Having failed to object to such issues, the appellants waived the error, if any. Rule 279 Texas Rules of Civil Procedure.

Each point of error must be germane to some assignment in appellants’ amended motion for a new trial. Appellants’ brief does not refer us to any assignment to support their points two and three and we are unable to find one. Contrary to their point number two, the jury did find, in answer to issues five and nine, that Mr. and Mrs. Adams did sustain physical illness. The record shows that appellants made no objection to issues five and nine.

Appellants contend the court’s definition of “unreasonable collection efforts” placed a greater burden upon them than the law requires. The definition is as follows: “ ‘Unreasonable collection efforts’ means collection efforts, which a person of ordinary prudence, in the exercise of ordinary care, would not have made under the same or similar circumstances.” Appellants in their amended motion for a new trial in paragraph ten assert the court erred in submitting its definition of “unreasonable collection efforts” and in paragraph eleven assert the court erred in refusing to submit its definition of “unusual collection efforts” as contained in its objections to the charge. In Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, (1960), our Supreme Court said:

“Assignments of error in a motion for new trial which do no more than adopt from or refer in general terms to other motions, etc. do not ‘specify’, or ‘distinctly set forth’ or ‘clearly identify’ a ground of error.”

Appellants in its objections to the charge requested the court to give the following definition of “unusual collection efforts

“ ‘Unusual collection effort’ is defined as that collection effort made under such circumstances that they were likely to cause physical harm and done with such an entire want of care as to raise the belief that the actor was consciously indifferent as to whether or not the person affected would or would not sustain bodily harm.” The definition given is substantially the same as the ones approved in Moore v. Savage, Tex.Civ.App., 359 S.W.2d 95, (writ ref. n. r. e.), with a per curiam opinion in which the Supreme Court said that “the correctness of the definition actually given is not before us”, and in United Finance & Thrift Corporation of Mesquite v. Bain, Tex.Civ.App., 393 S.W.2d 429, (writ ref. n. r. e.), with a per curiam opinion by the Supreme Court, 400 S.W.2d 302, in which the court said:
“The Court of Civil Appeals in its opinion reported in 393 S.W.2d at page 429 cited and quoted from Moore v. Savage, Tex.Civ.App., 359 S.W.2d 95 (writ ref., n. r. e. 1962), but did not take cognizance of the per curiam opinion of this Court reported in 362 S.W.2d at page 298. Similar to the situation in Moore v. Savage, here there was no objection to the definition of ‘unreasonable collection efforts’, or to the special issue relating thereto, in the court’s charge. See Rule 272, Texas Rules of Civil Procedure.
The application for writ of error is refused, no reversible error.”

Appellants’ point five is that the judgment for exemplary damages against the corporate appellants is wrong in the absence of a showing of corporate knowledge or authority or ratification of the actions, submission of which was not requested. Appellee contends this point was not raised in appellants’ amended motion for a new trial. Appellee also contends that authorization and ratification were impliedly found by the court in such manner as to support the judgment. Rule 279, T.R. C.P. The evidence was sufficient to support either authorization or ratification. Point five is overruled.

Plaintiff’s exhibit number 1 was a ledger card on the Adams’ account. The name and address of the borrower, where he works and the payments are kept on the front of the card. On the back of the card, a record of anything that happens on the account, except payment, is kept, such as when the customer calls in or he is called. This card shows fourteen contacts with the Adams during a five months period. Adams testified that the card contains only about one fifth of the calls.

Appellants’ contention is that the appel-lees are bound by the ledger card that they introduced in evidence and cannot offer evidence to contradict it by showing additional calls. There is no merit in this contention. Rule 182, T.R.C.P. authorized Adams to call the witness Pope. It is true that Pope is not a party to this suit but he was the “agent or party in control of the particular matter and things under investigation” and he was working for the corporation which was a party to the suit. It was not necessary for appellee to inform the court that he was calling Pope under the adverse party rule. When Pope testified that he was presently employed by “Termplan, Incorporated, at Akard”, it became apparent that his testimony was being adduced under the adverse party rule. In Appell Petroleum Corporation v. G. W. Townsend Lease Service, Tex.Civ.App., 375 S.W.2d 547, (no writ history), the court said:

“W. H. Appell was president and the majority stockholder of appellant company, and it was not necessary in order to avoid being bound by his testimony that appellee inform the court that he was placed on the stand as an adverse witness. Rule 182, Texas Rules of Civil Procedure; McCormick & Ray, Texas Law of Evidence, Vol. 1 § 485.”

Points seven to and including thirteen pertain to the alleged improper admission of evidence. We have considered all these points and have concluded that appellants have not discharged their burden of showing that the admission of such evidence was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P.

We have considered all the no-evidence points and find no merit in them.

We have considered the entire record and hold that the findings of the jury are not against the great weight and preponderance of the evidence.

Appellants assert the judgment is fundamentally erroneous because Wilbur Adams is the sole plaintiff and the judgment grants a recovery to Mrs. Adams who is not a party to the suit. This alleged ground of error was not set forth in appellants’ motion for a new trial, therefore it is waived. Rule 374, T.R.C.P. This point may not be considered as a fundamental error because it does not involve a matter of public interest and the record does not affirmatively and conclusively show error.

We have considered all of appellants’' points and find no merit in them. They are overruled.

The judgment is affirmed.


author: BARRON, Justice.

text:
    Steve J. MAURO, Appellant, v. WILDWOOD COMPANY et al., Appellees.
    No. 85.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    March 13, 1968.
    Rehearing Denied April 10, 1968.
    Fred F. Abbey, Houston, for appellant.
    Joel W. Cook, Schlanger, Cook & Cohn, Thomas D. White, G. Ernest Caldwell, Knight, Prappas, Rowland & Caldwell, Houston, for appellees.
   BARRON, Justice.

Plaintiff, Steve J. Mauro, filed suit against Wildwood Company, a corporation, Paraffine Oil Corporation, Stewart Title Company, Southern Title Company, Herbert J. Zieben and S. Alex Susholtz, all defendants, for payment of an alleged commission which he claims to have earned under a written listing agreement signed July 19, 1963. The listing agreement, termed an exclusive authority to sell real estate, was executed by Steve J. Mauro as realtor and by Wildwood Company, by S. Alex Susholtz, vice president of the corporation, as owner. The agreement provides for payment to Mauro of a 5% commission upon his procuring the sale or contract of sale of the property. The description of the property to be sold .is “approximately 40 acres out of the Ritson-Morris Survey, in Harris County, Texas, adjacent to WILD-WOOD ADDITIONS.”

Stewart Title Company and Southern Title Company were joined in this suit as holders of deposits of $10,000.00 and $18,-860.68 respectively. Neither of the title companies made any claim to the above money. Wildwood Company was owned by three persons. S. Alex Susholtz and his sister, an attorney, Leona J. Susholtz, owned 50% of the stock and Herbert J. Zieben owned the remaining 50% of the stock. Zieben was president of the corporation and S. Alex Susholtz was vice president. The land which Mauro was empowered to sell was a substantial portion of the assets of Wildwood Company, and the trial court found that the sale was not in the usual and regular course of business of Wildwood Company as ordinarily conducted. The trial court further found that the president, Zie-ben, was at all material times personally in the City of Houston and not disabled to act and was accessible to telephone and other communication, but that Susholtz and Mauro failed to notify Zieben of the intended sale of the major assets of the corporation. The court found that Mauro made no inquiry and that Susholtz disregarded suggestions that Zieben should be contacted and notified. When Zieben received notification of the transaction and of the purported contract, he immediately repudiated it. This resulted in a lawsuit between the stockholders of Wildwood Company, the outcome of which left Zieben owning all of the stock of Wildwood Company. Another result was that a $265,000.00 mortgage loan was made on the property which Mauro was to sell, the proceeds of which were parceled out to the stockholders and to various creditors, with $18,860.68 of the proceeds being held as an “escrow” for the payment of Mauro’s commission if he was entitled to it. The stockholders’ litigation was settled and dismissed as between them, and was later settled as between Paraffine Oil Corporation, the alleged willing purchaser of the involved property, who received a dredging easement and a right-of-way easement in the settlement.

Meanwhile, before the filing of the stockholders’ action above mentioned, Wildwood Company, acting by S. Alex Susholtz, executed an earnest money contract to sell the property involved to Paraffine Oil Corporation. In such written contract the property was described as 39 acres, more or less, (being part of tracts originally containing 76.-849 acres, describing the deed) out of the Ritson-Morris Survey, “lying west of the channel or slough opening into Clear Lake.” Also included were a number of undeveloped lots in Wildwood Additions, “and all other right, title and interest of seller, whether now owned or hereafter acquired before the date of closing hereof, in and to land and improvements located in the Rit-son-Morris Survey * * * and lands lying adjacent to the lands described * * * above and underlying roads, easements and said channel or slough.” The purchase price was listed as $6,500.00 per acre for 39 acres, $4,500.00 per lot for all waterfront lots, and $4,000.00 per lot for all other lots. The purchaser deposited $10,000.00 earnest money with Stewart Title Company, with a printed provision that the seller should have the right to retain the cash deposit as liquidated damages for the buyer’s breach of the contract, and should pay “agent therefrom the usual commission, * *

The latter contract, by reason of the facts summarized above, was never consummated, and no money was paid to Mauro. Therefore Mauro filed this suit to recover his alleged commissions. The trial court, without a jury, decreed that Mauro recover nothing, and held that the listing agreement was unenforceable by reason of the vague and indefinite description of the property to be sold thereunder; that Susholtz, as vice president of Wildwood Company, had no authority to bind the corporation by a sales listing and a sales contract when the president of the corporation, owner of one-half of the stock, was available and not notified; and that Mauro was not entitled to collect commissions from Wildwood Company while serving as trustee for Paraffine Oil Corporation in a related transaction which he did not divulge to Wildwood Company or any of its representatives.

Mauro is appellant, and the principal ap-pellee is Wildwood Company. Appeal properly has been perfected to this court.

While serious questions related to the validity and enforceability of the sales contracts executed by Susholtz are presented, by reason of the provisions of V.A.T.S., Business Corporation Act, Art. 5.09, and Art. 5.10, involving sale of assets of a corporation requiring special authorization of Board of Directors and Shareholders when disposition of all or substantially all of the property and assets of a corporation is involved, we find it necessary for disposition of this case to consider only the first finding of the trial court. The trial court found on what we believe to be ample testimony, that the description of the property in the written listing contract was wholly inadequate, and that the land involved being irregular in shape and the description indefinite, could not be specifically located. The trial court found that it was unable to determine from the description of the lands what was intended to be embraced in the written agreement. We affirm the trial court’s judgment.

By note included in the listing agreement it was recited that other information appeared on the reverse side of the sheet on which the contract was imprinted, but none of the blanks for the inclusion of such information were filled in. The agreement was typed by Leona J. Susholtz. We have as a description in writing, “approximately 40 acres out of the Ritson-Morris Survey, .in Harris County, Texas, adjacent to Wild-wood Additions.” There are two Wildwood Additions, designated as Section One and Section Two. Appellant testified that he intended to include undeveloped acreage which he found consisted of about 40 acres. Further, there were approximately 22 lots adjoining, which were unsold in the additions, and apparently this was open land adjoining the alleged 40 acres attempted to be described in the written contract, on which Mauro was claiming a commission under the contract. At the time of the signing of the listing agreement, Mauro thought that Wildwood owned some other property on the front of FM Road 528 consisting of about four or five acres of commercial property to the east of the subject property. When the property was surveyed it was found to contain only 38.03 acres, including about two acres under the waters of the slough which was excluded from the thirty-nine acre tract described in the earnest money contract. To arrive at 38.03 acres, the surveyor had to .include 2.58 acres not adjoining either of the Wildwood Additions but lying south of FM Road 528. Excluding this 2.58 acres as not meeting the requirement of the listing agreement description as “adjacent to Wildwood Additions,” the portion of the 39 acres described in the earnest money contract which is consistent with the information contained in the description employed by the listing agreement, is approximately 33.45 acres. The alleged 40-acre tract mentioned in the listing agreement, excluding the undeveloped lots which were sold, was actually made up of tracts of 2.58 acres, 12.45 acres, 1.47 acres, and 21.53 acres, at least one tract not being adjacent to either Wild-wood No. 1 or No. 2 in the context in which the term “adjacent” is used. See 5 Lange, Texas Land Titles, Sec. 774, p. 207.

The Texas rule is well established. Insofar as the description of the property is concerned, the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be sold may be identified with reasonable certainty. Wilson v. Fisher, 144 Tex. 53, 188 S. W.2d 150; 5 Lange, Texas Land Titles, Sec. 762. In Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222, it was held that a description of property, by reason of the use in the memorandum or contract of such words as “my property,” “my land,” or “owned by me,” is sufficient when it is shown by extrinsic evidence that the party to be charged and who has signed the contract or memorandum owns a tract and only one tract of land answering the description in the memorandum. See Jones v. Smith, 231 S.W.2d 1003 (Tex.Civ.App.), writ ref., n. r. e., and 34 Tex.L.Rev. 446. Here, Wildwood Company, by S. Alex Sus-holtz, vice president, signed as owner. Ordinarily such signature and designation as “owner” would render the description adequate under Article 6573a, Sec. 28, and Art. 3995, the statute of frauds, under the authority of the Pickett case above, if the contract had provided for inclusion of all property owned by Wildwood in the Rit-son-Morris Survey.

The authorities on this matter establish the essential quality of two elements in determining the sufficiency of a property description in the required written agreement: (1) that the land be defined to be that of the owner, e. g., “my land,” and (2) that the promisor owns specific property answering the description actually set out in the agreement and no other property within the designated area. The first requirement above, we believe, is fully satisfied by use of the term “owner” in the writing. But the extrinsic evidence in this case fails to satisfy the further requirement of the Pickett v. Bishop rule, that the proof show that the party who has signed the contract owns a tract and only one tract of land answering the description in the memorandum. The trial court found that “from the description contained in the authority to sell, no specific tract of land can be located, and the court is unable to determine from this description of the lands actually what was intended to be embraced in the authority attempted to be granted.” We believe the trial court’s finding is supported by the evidence. We find the following problems presented by the evidence outside the matters stated in the written description: did the listing agreement include the 2.58 acres which did not touch either Wildwood Addition but lay south of FM Road 528 as a separate tract? Was it the intention of the parties to include the four or five acres which Mauro thought the corporation owned? Was it Mauro’s intention that the four or five acres lying east of the undeveloped acreage should be included in the lands authorized to be sold by the listing agreement? Were the lots in Wildwood Additions or in the vicinity of Wildwood Additions intended to be included in the listing agreement, and for the proposed sale of which Mauro was claiming a commission? Which tract or tracts adjacent to Wildwood Additions did the parties intend to include in the agreement? There were four of them, excluding the undeveloped lots, and one was a 21.53 acre tract and another was a 12.45 acre tract. In Phillips v. Burns, 151 Tex. 614, 252 S.W.2d 927, 928, a similar problem of description was involved. The court in that case considered the sufficiency of the following description :

One certain farm located about 6 miles south of Linden, Texas, in Cass County, a part of the A. D. Duncan Survey, and known as the old Whipple Place, together with several tracts of land adjoining it; amounting in all to about 500 acres, now owned by the lessor herein.

The Supreme Court held that the inclusion of the words “together with several tracts of land adjoining it” rendered such description uncertain and indefinite, and said that the instrument did not even recite that it was intended to include all of the several tracts adjoining the old Whipple place that the lessor owned. In the case at bar there is no descriptive statement authorizing sale of all property owned by Wildwood Company in the Ritson-Morr.is Survey, and there are at least four tracts involved. The estimate of the total amount of acreage, which was indefinite, does not save the description.

In Tidwell v. Cheshier, 153 Tex. 194, 265 S.W.2d 568, the following description was considered:

The following described property lying and situated in the County of Ellis, State of Texas, being approximately 154.63 acres of land in Ellis County, Texas, in two tracts, being out of the Benjamin Moore Survey, W. J. Ely Survey, F. E. Witherspoon Survey.

The court held that the above description was insufficient to identify the land. See also Republic Nat. Bank of Dallas v. Stetson, 390 S.W.2d 257, 263 (Tex.Sup.); Shelton v. Allen, 407 S.W.2d 832 (Tex.Civ.App.), writ ref., n. r. e.

In Hereford v. Tilson, 145 Tex. 600, 200 S.W.2d 985, it was held where the description was “the real property and buildings located at No. 1805 South Haskell, Dallas, Texas” and where such description covered only a part of a larger tract owned by defendant, that the question of what part of the larger tract was intended to be included in such description could not be answered without resorting to parol evidence and could not be resolved with any reasonable degree of certainty. The Supreme Court reversed the judgment and held the description insufficient. While the last case above points up the rule, we repeat that there is no requirement in the written description in this case that all of the property belonging to Wildwood Company was to be sold, as seemingly contended by appellant. There is evidence in the record that acreage and some undeveloped lots were the total assets of Wildwood Company, and that “this was the only property in the Ritson-Morris Survey that-Wild-wood Company owned.”

Appellant relies upon Investors Syndicate Credit Corp. v. Ates, 420 S.W.2d 444 (Tex.Civ.App.), no writ hist., where a 1.58 acre tract belonging to ozvners in the B. S. Watts Survey, Abstract 1048, Smith County, Texas, was involved. The court pointed out the rule in Pickett v. Bishop, supra, and held the description sufficient since the owners held title to no other land in such survey or in Smith County, Texas. But that case is distinguishable, since there was absolutely no uncertainty, and the 1.58 acre tract was clearly identifiable. Here the property and the amount thereof is neither clearly identifiable nor was all the property in one tract and “adjacent to Wildwood Additions.” Some of it was across a state highway and there were at least four tracts involved. In Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744, (Tex.Com.App.), opinion adopted, the description was “the town house and all lots now owned by Mrs. Kel-ton * * * located in Knox City” and described land in Haskell County as Mrs. Kel-ton’s farm in Haskell County. The court held that if the evidence established that only one farm was owned by Mrs. Kelton in Haskell County the description was sufficient, and that the description of all lots owned by her in Knox City is sufficient. The case is distinguishable.

In Merzbacher v. Kirk, 278 S.W.2d 544 (Tex.Civ.App.), writ dismd., the court noted that although the written listing did not contain any description of the property as placed for sale with the appellee, the property was fully described later in the written contract of sale as executed by appellants which further provided for payment to the appellee as agent of a commission of 5% on the agreed purchase price. The judgment was affirmed in favor of the realtor. See Bridwell v. Sandefur, 341 S.W.2d 710 (Tex.Civ.App.), writ dismd. However, the contract of sale or earnest money contract in this case, while more specific in the description of the property failed to provide for a definite commission to be paid to appellant. The listing agreement was not referred to, and we have held that it was unenforceable. The contract of sale provided that the “usual” commission was to be paid appellant in the event of a failure to consummate the sale, payment to be made from the $10,000.00 earnest money deposited by the buyer. Such an agreement for a commission has been held to be insufficient, and the amount of the commission to be paid cannot be supplied by parol testimony. Buratti & Montandon v. Tennant, 147 Tex. 536, 218 S.W.2d 842, 9 A.L.R.2d 742. Moreover, it was the seller who refused to comply with the contract.

There was no manner m which the specific property to he sold could be determined in this case from the written listing agreement and from the property on the ground. The parties themselves had difficulty in identifying the specific property, and we are unable to do so from the record with reasonable certainty. To prevent this type of uncertainty is one of the basic purposes of Art. 6573a, Sec. 28, and the statute of frauds.

We consequently affirm the judgment of the trial court. Our decision makes it unnecessary to discuss other points of error by appellant.

The judgment of the trial court is affirmed.


author: GRISSOM, Chief Justice.

text:
    NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, Appellant, v. Rita SALAS, Appellee.
    No. 4224.
    Court of Civil Appeals of Texas. Eastland.
    March 15, 1968.
    Rehearing Denied April 5, 1968.

      Robert E. Davis, Matthews & Thorp, Dallas, for appellant.
    Marvin Menaker, Dallas, for appellee.
   GRISSOM, Chief Justice.

Rita Salas sued the National Life and Accident Insurance Company on a life insurance policy, issued December 16, 1963, insuring the life of her baby, Rudolph Salas. Rudolph was born October 30, 1963. He died May 24, 1964. He was about six weeks old when the policy was issued to his mother. The Insurance Company defended on the ground that Rudolph was not in sound health when the policy w.as issued and therefore the provision in the policy that it “ — shall take effect on the date of issue, provided the insured is then alive and in sound health, but not otherwise” prevented the policy from ever taking effect. The Insurance Company further alleged that material representation of facts, upon which it relied were “falsely and knowingly and fraudulently misrepresented” to it in the application for the policy. The court instructed the jury that sound health meant “a state of health free from any ■ disease or ailment that affects the general soundness and healthfulness of the system seriously. Not a mere temporary indisposition which does not tend to weaken or undermine the constitution of the assured.” The court submitted only one issue, to-wit, whether on December 16, 1963, the day the policy was issued, Rudolph was not in sound health. The jury found against the Insurance Company on that defensive issue. Based on that finding the court rendered judgment for Rita Salas against the Insurance Company for the face amount of the policy, plus 12% penalty and $350.00 attorney’s fee. The Insurance Company has .appealed.

Under appellant’s first 4 points it contends that (1) there was no evidence that Rudolph was in sound health when the policy was issued; (2) that said finding is contrary to the great weight and preponderance of the evidence and that (3 and 4) the court erred in refusing to grant its motions for an instructed verdict. In support thereof, appellant says the evidence shows without dispute, that a heart murmur was first detected on November 2, 1963; that Rudolph was afflicted with a heart murmur on November 7, 1963, before the policy was issued on December 16, 1963; that his mother knew thereof and that she took him to the Freeman Memorial Clinic for tests and observation during November and December, 1963, and in January, 1964; that on December 6, 1963, Rita Salas falsely represented in her application for insurance that Rudolph had no heart trouble; that Rudolph had a heart murmur on December 10, 1963; that he had a heart murmur on January 3, 1964 and April 24, 1964; that appellant’s manager testified, without contradiction, that Rudolph’s condition was so material to the risk that if it had been known to the company it would not have issued the policy. Appellant says it is settled law that a life insurance policy may contain a provision that it shall not become effective if the insured is not in sound health when the policy is issued and that existence of sound health on the date the policy is issued is a condition precedent to its ever becoming effective. We think that is an accurate statement of the law. American National Insurance Co. v. Lawson, 133 Tex. 146, 127 S.W.2d 294, 295, (Com.); Texas Prudential Insurance Co. v. Dillard, 158 Tex. 15, 307 S.W.2d 242; Lincoln Income Life Insurance Co. v. Mayberry, 162 Tex. 492, 347 S.W.2d 598; Great National Life Insurance Co. v. Hulme, 134 Tex. 539, 136 S.W.2d 602. Appellant further says that Rudolph’s heart murmur was first detected on November 2, 1963; that it was present on November 7, 1963; that his mother knew thereof and that she falsely represented in December 1963 that he was in good health; that the testimony of appellant’s manager showed that said representation was material to the risk and that the policy would not have been issued but for such misrepresentation. The appellant contends that said matters were conclusively established and therefore it was entitled to an instructed verdict and the court committed reversible error in refusing to instruct a verdict.

Appellant says in its 6th point that the court erred in refusing to grant its requested instruction number one, which was as follows:

“You are instructed that the term ‘material to the risk’ means any fact concerning the health, condition or physical history of Rudolph Salas which would materially have influence on Defendant in determining whether or not it would issue the insurance on Rudolph Salas.”

Its 7th point is that the court erred in refusing to submit its requested issue number one, to-wit:

“Do you find from a preponderance of the evidence that Miss Salas made her answers on the application willfully and with the intent to induce the defendant to insure Rudolph Salas?”

Its 8th point assigns error to the refusal to submit its requested issue number two, inquiring whether the medical consultations or treatments given Rudolph in November or December, 1963, were material to the risk, and requested issue three, which inquired whether Rudolph’s confinement in the hospital was material to the risk.

Appellant’s 10th point presents the contention that the court erred in refusing to submit its requested issue number four, which inquired whether Rudolph had heart trouble before the date of the insurance application, and requested issue five, which asked whether such heart trouble was material to the risk.

Appellant’s 12th and 13th points present the contention that the court erred in refusing to submit its requested issue number six, which inquired whether Rudolph had any disease, impairment or deformity to his heart, and requested issue seven, which inquired whether such disease, impairment or deformity of Rudolph’s heart was material to the risk. Appellant then says ap-pellee admitted that Rudolph had a heart murmur; that he had medical consultation and treatment for that condition and that Rita Salas knew thereof when she answered the questions in her application. Appellant says the remaining elements of the defense of misrepresentation, which were not admitted, were (1) materiality of Rudolph’s condition and (2) intent of his mother to induce appellant to insure him. Appellant says the evidence relative to these matters was uncontradicted; that Rudolph’s infirmity was, as a matter of law, material to the risk and that his mother made such false representations willfully with intent to induce appellant to insure her son.

The court refused to submit said issues and submitted the case upon the one issue, whether Rudolph was not in sound health when the policy was issued. Contrary to appellant’s contention, we think there was not only some evidence, but sufficient evidence, to support the jury’s negative answer to that defensive issue. His mother, who was 16 years of age and had a ninth grade education, testified that she could observe nothing wrong with her son between the time he was born and issuance of the policy and that during said time no medicine was prescribed for him. The medical records at the hospital where Rudolph was born and stayed only the first four days of his life showed he was “doing fine” and “in good condition.” The medical librarian at the Children’s Medical Center testified to the effect that both prior and subsequent to issuance of the policy Rudolph was apparently in good health. The records of the results of examinations there by a doctor showed “impression, well baby.” A congenital heart problem was ruled out. Rudolph had electrocardiograms and x-ray examinations which, according to the doctor’s record, showed “not definitely abnormal” and “within normal limits.” Despite some evidence of existence of a heart murmur there was no direct evidence that at the time the policy was issued Rudolph was not in sound health. There is not any evidence that the suspected heart murmur, even if it existed when the policy was issued, was such an illness that it required the conclusion that Rudolph was then not in sound health. Of course, the burden was upon appellant to prove, as it alleged, that when the policy was issued Rudolph was not in sound health. The jury answered that issue against the appellant. The evidence does not compel a contrary conclusion. On the contrary, it is sufficient to support the jury’s answer.

We think the court submitted the ultimate issue and that it did not commit reversible error in refusing to submit other issues requested by appellant. A party seeking submission of instructions and issues has the burden' of presenting them in substantially correct form. Texas Rules of Civil Procedure, rule 279. These were not. The requested issues must be ultimate issues. These were not. See Holmes v. J. C. Penney Co., 382 S.W.2d 472; 57 Tex.Jur. 2d 119, 122.

Appellant’s 14th point presents the contention that the court committed reversible error in permitting introduction of plaintiff’s exhibit 2, which was Rudolph’s death certificate. Only a statement that the immediate cause of Rudolph’s death was bronchopneumonia was admitted. It did not purport to be the opinion of a doctor or any person who presumably knew the cause of his death. Introduction of the certificate was objected to because (1) it was hearsay; (2) no proper predicate had been laid; (3) it was not filled out in accordance with the statutes; (4) not certified by the State Registrar; (5) it did not contain the name of any physician and (6) did not purport to be the statement or opinion of any one qualified to pass thereon. We think the certificate was not admissible. But, it was not admitted. The only thing admitted did not purport to show that it was the opinion of any one reasonably calculated to have such knowledge. Under the circumstances, we do not believe it was reasonably calculated to cause and that it probably did cause rendition of an improper judgment. The cause of death may be material in determining whether one was not in good health when a policy was issued but the controlling question is lack of good health at said time. Evidence of what some unknown person said was the cause of death, in the absence of any evidence' that he had some knowledge thereof, was not reasonably calculated to influence a jury. We therefore conclude that such admission was not reversible error.

All of appellant’s points have been carefully considered and are overruled. The judgment is affirmed.