author: YOUNG, Justice.

text:
    Esir TOBOLOWSKY, Administrator With will annexed of the Estate of H. H. LaMaster, Deceased, Appellant, v. Ola EASTWOOD, Appellee.
    No. 15861.
    Court of Civil Appeals of Texas. Dallas.
    July 21, 1961.
    Rehearing Denied Nov. 10, 1961.

      Esir Tobolowsky, Dallas, for appellant.
    Leake, Henry, Golden, Burrow & Potts and Hartman Hotz, Dallas, for appellee.
   YOUNG, Justice.

The suit in trial court was by Ola Eastwood, a widow, against above named estate for alleged debt; and in a non-jury trial, judgment was rendered for plaintiff for $3555.00, with result of this appeal.

Plaintiff had alleged that in a real estate .transaction, one W. R. Allen executed a vendor’s lien note for $3,000 to H. H. La-Master, payable in annual installments ; that on same day LaMaster had endorsed the note to plaintiff Ola Eastwood; the latter having owned the note since said date'. She alleged that Allen had made payment of all three installments to La-Master; that when she learned of the first payment to LaMaster of October 24, 1954, she had made demand on him for the remittance of the amount so collected, he promised to make such remittance within the next few days but failing to do so; that she had not known of the subsequent payments on the note until death of La-Master; the latter receiving all of these payments without her consent and thereby holding the funds for her use and benefit and in trust for her. Plaintiff’s claim for debt was presented to defendant admin'istrator and rejected on or about January 23, 1957.

Defendant answered by sworn pleading, denying genuineness of endorsement or transfer to plaintiff, alleging that LaMaster did not for himself, write or make the endorsement, nor did he authorize anyone else to write or make same for him, either above his name or anywhere else on the note; and specifically, did not write or authorize the name of Ola Eastwood in the endorsement, such being without his knowledge or consent; denying consideration for the endorsement, further pleading fraud and statute of limitations.

Appellant’s 13 points will be summarized: Court error in rendering judgment for plaintiff where there was no evidence or an insufficiency of evidence to establish that deceased transferred the note in question to plaintiff; that such findings for plaintiff were so against the great weight and overwhelming preponderance of the evidence as to be clearly wrong, manifestly unjust or shocking to the conscience. No evidence that one Paul Kinnamon wrote a material part of the alleged endorsement or that said Kinnamon had any authority to act for deceased; likewise an insufficiency of such evidence. No evidence or insufficiency thereof to establish any consideration for transfer of note in view of defendant’s sworn denial of consideration. Error in rendition for plaintiff where the evidence of delivery of note to her was to effect that it was not for purpose of transferring title. Error in that there was no evidence that • plaintiff’s claim had been presented to the administrator or rejected by him or that suit was filed 90 days thereafter. No evidence that Esir Tobolowsky was acting as administrator at time of trial. Court error in rendering judgment against Tobo-lowsky as administrator, there being no evidence that said Tobolowsky had collected any of the monies on the note in question or that he had any of such monies; and error in ordering execution to issue for enforcement of the judgment. Appellee has made appropriate answer to each of above indicated points on appeal.

Mrs. Eastwood was a resident of Oklahoma City at all material dates engaging there in abstract and title work; Mr. LaMaster having formerly lived in that State, being extensively engaged in business ventures and in real estate dealings. Plaintiff and her sister, Mrs. Jean Burnett, also of Oklahoma City, had been long time acquaintances of LaMaster; he using the office of Mrs. Eastwood and her services in his business transactions. The dead man’s' statute (Art. 3716, Vernon’s Ann.Civ.St.) had been invoked, precluding plaintiff from testifying to transactions with deceased; but Mrs. Burnett as a witness (and who had no interest in the suit) testified that Mr. LaMaster was always coming into the-office of Mrs. Eastwood “and writing her and having her to do this, do that, put ads in the papers, pay his taxes and close deals”; but not knowing of any services that “he did not pay for.”

Coming down to the matter in controversy, Mrs. Eastwood was in Dallas and at the office of Stewart Title Company on August 28, 1953 at the preliminary closing of sale of some Tarrant County acreage by La-Master to W. R. Allen, the $3,000 note being part consideration. Others present were the purchaser, the seller, LaMaster, and Paul Kinnamon of the Title Company. The deed conveying the property, deed of trust with Mrs. Eastwood, as trustee, had been duly prepared for signatures by the respective parties. The note was signed by Mr. Allen and passed to LaMaster who endorsed same on reverse side. The controversy relates solely whether deceased then requested Kinnamon to write the words “I”, “Ola Eastwood,” and “Me” in the transfer form above the signature of LaMaster; the complete wording on reverse side of note, Exhibit 1, as introduced in evidence, reading:

“I hereby sell, transfer and assign to Ola Eastwood the within Note, together with the Vendor’s Lien and Deed of Trust Lien on the property securing same, without recourse on me.
H. H. LaMaster.”

The sale was not then closed on account of title requirements, the executed papers being retained in escrow by the title company pending completion of these details and final closing; Mrs. Eastwood returning to Oklahoma City.

The sale to Allen was finally closed at office of the title, company on September 17, 1953. Mrs. Jean Burnett, sister of plaintiff, going there with Mr. LaMaster, others present being the purchaser Allen and a Mr. Perry, title company representative; Mrs. Burnett testifying that after the closing, Mr. Perry handed the $3,000 note to her, Mr. LeMaster then saying “when we get home (his residence) I want you to write a letter to Ola (Mrs. Eastwood) and send her this”; Mr. Allen then driving the two to the apartment of LaMaster on Miller Street where he dictated to her such a letter with the note enclosed to Mrs. Eastwood at Oklahoma City which letter she mailed. Mrs. Burnett stated that she had written many letters for Mr. LaMaster, as it was difficult for him to do so, due to ■physical disability; and with reference to the purpose of enclosing the note to plaintiff that Mr. LaMaster had stated “so that she would have it, he wanted her to have this;” the witness not remembering his exact words. She also stated that at time of handling the note everything by way of endorsements was on the back or reverse side.

Allen, maker of the note, though a witness for plaintiff, testified to being in attendance at the August 28th, preliminary conference; that the note was not endorsed in his presence, he having examined it; that no one had ever told him of any transfer of note to Mrs. Eastwood, his first information thereof being in September 1956, after Mr. LaMasters’ death (it having been paid to payee therein in full). A Mr. Dea-son, an accountant with Bell Telephone Company for 25 years, likewise testified that he had acted as attorney-in-fact for LaMaster during the latter years; making all collections on the note in question, having never heard of any assignment of note to plaintiff until the death of LaMaster; on the other hand that the deceased had in fact executed a formal transfer of the note to Frances D. Hawk (formerly secretary of LaMaster) of date November 28th, 1953 but re-transferred to deceased on December 13, 1954.

Photostats of the questioned endorsement appearing on the back of note, “I”, “Ola Eastwood” and “Me” is shown below. Exhibit C is the same wording in handwriting of plaintiff Eastwood; Exhibit 8 the same words in the handwriting of Paul Kinna-mon and Exhibit 1 is the endorsement as shown on reverse side of note itself.

George J. Lacy of Houston, Texas, serving his fourth year as President, American Society of Questioned Document Examiners, called by plaintiff, examined several samples of the handwriting of both plaintiff and Kinnamon. He testified explicitly that the person who wrote above Exhibit 8 (Kinnamon) “also wrote the words T, ‘Ola Eastwood’ and ‘me’ on plaintiff’s Exhibit 1.” To the contrary, Kinnamon, title company officer, called as defendant’s witness testified positively that he did not write the words “I”, “Ola Eastwood” and “me”, or any of these words appearing on back of the note, nor were they written on the note at any time in his presence; (plaintiff Eastwood having already testified oppositely on the subject).

As bearing generally on the case are the following items or more or less materiality: That a witness for plaintiff, Phil Eisenhower, testified to being present at the Oklahoma City office of Mrs. Eastwood when the $3,000 note was received through the mails; stating his knowledge of the business relations of plaintiff and deceased over many years; testimony of Mrs. Burnett that in 1957 .she had received $1,000 from LaMaster for purchase of furniture shipped by her to Oklahoma City; that Exhibits 6 and 7 were letters written by Kinnamon to plaintiff in intervals between August 28, 1953 and September 17, date of final closing of the Allen transaction and with reference thereto; and defendant’s Exhibit 5 was the title policy issued to Allen on September 24, 1953 which did not recite any transfer of note to plaintiff. Incidentally, the memory of witness Kinnamon about the particular transaction was markedly hazy and uncertain, he having closed as many as 200 deals per month in earlier years.

Save as to the authority of Kin-namon to endorse the notes as he did, resolved by the court in favor of appellee, the foregoing facts are practically without dispute. In this connection Art. 5932, § 16, V.A.C.S. provides: “Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties, and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting or indorsing,- as the case may be; and in such case the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument * * Under the testimony of Mrs. Burnett, the issue was raised as to whether the note was delivered for a special purpose; and the court’s conclusion that the delivery was unconditional has support in the record as a whole. The settled principle of law as stated in Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 is as follows: “If, discarding all the adverse evidence and giving credit to all evidence that is favorable to the successful party, and indulging every reasonable conclusion that is favorable to him, a trier of the facts may have found in his favor, then it is to be concluded that there is evidence to support the finding, * * Appellant’s construction, of “special purpose” for delivery of the note to appellee would establish deceased as a sort of “Indian Giver”, which the court has justifiably rejected.

Relative to the several points raised' by appellant on matter of consideration for the note, although the testimony of Mrs. Burnett is somewhat contradictory,, yet she finally stated that she had no knowledge of appellee having ever received payment from LaMaster for any work she had done for him; witness Eisenhower testifying that the two had been business associates over the years. The principle of Banks v. Collins, supra, would likewise-be applicable to appellant’s issue of no consideration, found by the court in favor of appellee.

The remaining points may be disposed of briefly. It is evident from the record that appellee duly presented her claim to appellant administrator, rejected by him with suit being filed within the-90 day period; Sec. 313, V.A.T.S. Probate Code; Mr. Tobolowsky being the duly acting administrator"of estate at time of suit. However, the judgment appealed from provided that execution should issue thereon. This was error. Such wording must be eliminated and in lieu thereof the provisions of Sec. 313, supra, be followed that same shall be duly certified to the County Probate Court of Dallas County for observance.

As reformed, all points of error are overruled and the judgment under review-is in all respects affirmed.

Appellant Administrator correctly states that there is no evidence as to when the name of LaMaster was written on the endorsement. Our statement in original opinion that “the note was signed by Mr. Allen and passed to LaMaster who endorsed same on reverse side” is accordingly withdrawn.

Administrator strongly attacks our af-firmance of cause on numerous grounds. Initially, we may observe that most of the claimed fatal deficiencies of proof arise perforce of appellee’s postponement of court action until the death of LaMaster and consequent interposition of Art. 3716, V.A.C.S. (Dead Man’s Statute).

His point four is again argued at length, asserting error in our rendition “where a finding for the plaintiff is so against the great weight and overwhelming preponderance of the evidence as to be clearly wrong, manifestly unjust or shocking to the conscience”; and extensively reviews the record in such connection. Under such a point it is incumbent on us to “consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust — this, regardless of whether the record contains some ‘evidence of probative force’ in support of the verdict. See cases cited, supra. The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict.” In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661. We have again reviewed the record in its entirety concluding as before that the case must be affirmed.

The testimony regarding the note’s endorsement on reverse side of “I”, “Ola Eastwood”, and “me”, in the handwriting of Paul Kinnamon has already been related. Kinnamon denied this, though the handwriting expert testified to the verity of said writing, plaintiff Eastwood stating that such endorsement was made in her presence by Kinnamon and also in the presence of Mr. Allen and LaMaster. Appellant reiterates that the evidence was insufficient to establish that Kinnamon had any authority to act for deceased. The Dead Man’s Statute was interposed to exclude the further answer of Mrs. Eastwood that such endorsement was made at the instance of LaMaster; but a like assent may reasonably be inferred from other facts and circumstances, such as the words and conduct of LaMaster himself. All relevant testimony indicates that Mr. LaMaster wanted plaintiff to have the note, causing Mrs. Burnett after the September meeting to mail the same to Mrs. Eastwood at Oklahoma City so endorsed. And relative to the act of Kinnamon, it is stated in 2 C.J. “Agency” p. 508: “But if an act is done by the agent in the principal’s presence, the latter’s silence or failure to repudiate will amount to a ratification.” See also 2 C.J.S. Agency § 57.

Further on points seven and eight appellant there argued: “the burden of proof was on the plaintiff to prove that there was a consideration for the transfer of the note by a preponderance of the evidence, since defendant filed a sworn denial of consideration.” The true rule was announced long ago by our Supreme Court through Associate Justice Gaines in Newton v. Newton, 77 Tex. 508, 14 S.W. 157, 158, viz: “The promissory note in controversy did not purport upon its face to be given for a valuable consideration; but, under our statutes, all written instruments import a consideration. Rev.St. art. 4488. It is also provided that the consideration of a written instrument can only be impeached by a sworn plea. Article 1265, Id. Such a plea was interposed in this case, and appellants now contend that the court erred in refusing to charge the jury that the burden was upon the plaintiff to prove that there was a valuable consideration for the note. The note imported a consideration, and the burden was upon the defendants to show that there was none. The effect of the sworn plea was not to shift the burden of proof, hut merely to put the consideration in issue.” (emphasis ours).

Appellant has offered no evidence whatever on any lack of consideration for the note in question.

Lastly, error is assigned of no evidence of presentation of claim to the administrator or rejection by him, or that suit was filed 90 days thereafter; also of no evidence that Esir Tobolowsky was acting as administrator at time of trial. These points will be touched upon in adverse order. (1) Timely filing of suit is indicated in supplemental . transcript; (2) appellant was sued as administrator of the estate of H. H. LaMaster, deceased, and all defensive pleading was signed in the capacity of administrator; there being no necessity to prove a fact admitted in the adversary’s pleading. Caulk v. Anderson, 120 Tex. 253, 37 S.W.2d 1008; and (3) attached to plaintiff’s trial petition as exhibits were the. note sued upon, the sworn creditor’s claim as filed in probate court, and presentation and rejection of claim by said administrator on January 23, 1957. These exhibits, do not appear to have been placed in evidence. Said omission becomes immaterial however because the endorsements made or annexed thereto “were not denied under oath.” It is provided in § 313, V.A.T.S. Probate Code: “When a claim or a part thereof has been rejected by the representative, the claimant shall institute suit thereon within ninety days after such rejection, or the claim shall be barred. When a rejected claim is sued on, the endorsement made on or annexed thereto shall be taken to be true without further proof, unless denied under oath.1’ (emphasis ours).

Motion for rehearing is overruled.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    R. N. STRIPLING and Wife, Winfrey Leak Stripling, Appellants, v. Louis HIGGINBOTHAM, Appellee.
    No. 3934.
    Court of Civil Appeals of Texas. Waco.
    Nov. 16, 1961.
    Rehearing Denied Jan. 25, 1962.
    Duke Taylor, Center, for appellants.
    Wardlow Lane, Center, for appellee.
   WILSON, Justice.

The court instructed a verdict for defendant in this trespass fo try title case on the ground that title was outstanding in a third person, a trustee in bankruptcy. Plaintiff says the evidence does not show an outstanding title such as to warrant peremptory action.

The evidence shows that in 1932 the land was conveyed to plaintiff’s wife as named grantee, but was actually community property of plaintiff and his wife. Plaintiff “had some reversals” and did not record the deed until over a year later. All the remaining testimony on the issue is as follows : “Q. May the Sth is the date of the deed, and it was filed for recording a little over a year later, July the 17th (1933). Now during that time you had filed your petition in bankruptcy, and on July the 27th you was declared a bankrupt. That was in 1933? That right? A. I don’t remember. I think so. Q. That’s about right isn’t it? And so at that time you didn’t claim this as part of your homestead, did you? A. No sir. Q. And you didn’t file with the trustee in bankruptcy, claiming it ought to be exempt, because it was your homestead ? A. No sir. Q. Because it wasn’t your homestead, was it? A. No. Q. And you probably — you didn’t list it among your assets did you? A. I don’t remember.”

Although the premise is of some doubt, we will assume, without deciding, that this evidence conclusively established for purposes of the motion for instructed verdict (a) that plaintiff filed a voluntary petition in bankruptcy in a court having jurisdiction, after delivery of the deed; (b) that after the deed was filed he was adjudged a bankrupt; (c) the land was not exempt, and no exemption was claimed. It may not plausibly be said, we think, that any other fact relating to bankruptcy was so established. No such proceedings were offered in evidence, and there is no showing that a trustee was appointed or qualified. Any inferences or deductions as to the existence, scope or nature of any such proceedings, or as to whether a schedule was filed, and as to whether this property was inventoried, must be gleaned from the quoted testimony.

Appellee, in support of the instructed verdict, relies on First Nat. Bank of Jacksboro v. Lasater, 196 U.S. 115, 25 S.Ct. 206, 49 L.Ed. 408; Garrett v. Garrett, 124 Tex. 330, 78 S.W.2d 157; Raley v. D. Sullivan & Co., Tex.Com.App., 207 S.W. 906; Perkins v. Alexander, Tex.Civ.App., 209 S.W. 789, no rehearing; and Estep v. Estep, Tex.Civ.App., 237 S.W.2d 647, no rehearing. In these cases, except Perkins v. Alexander, the record established that there was a trustee in bankruptcy and the trustee was ignorant of existence of an unscheduled asset; and it was held that such property passed to the trustee, precluding recovery thereof by the bankrupt after discharge. Before the Lasater decision by the United States Supreme Court, the Supreme Court of Texas had held to the contrary, Lasater v. First Nat. Bank, 96 Tex. 345, 72 S.W. 1057; Herndon v. Davenport, 75 Tex. 462, 12 S.W. 1111; Jones v. Pyron, 57 Tex. 43, 47, where the property was undisposed of at time of discharge or termination of proceedings. In Perkins v. Alexander it was said the burden was upon one claiming property in such situation to show the trustee had refused, or elected not to claim it; but in holding the rule inapplicable the court said, 209 S.W. 791: “The facts on the issue * * * fail to disclose many essential facts necessary to dispose of the point. * * * It is not shown when he was adjudged a bankrupt, when he was discharged, whether the trustee knew or ought to have known of the claim omitted from the schedule, * * * and various other facts which might have determined the issue.” There are other decisions which do not assist in the search for clarity.

In Danciger v. Smith, 116 Tex. 269, 289 S.W. 679, affirmed 276 U.S. 542, 48 S.Ct. 344, 72 L.Ed. 691, Smith filed a voluntary petition and was adjudged a bankrupt. No trustee was appointed, because he scheduled no assets. The record established that Smith concealed existence of the property involved in the suit by failing to mention it in his schedule of assets. The Texas Supreme Court held that since no trustee was appointed, the bankrupt was not divested of title. This holding' was affirmed by the United States Supreme Court.

In each of the other cases relied on by appellee to support the instructed verdict there was a clear showing that the bankrupt had concealed or failed to disclose the asset in controversy by failing to schedule it. See 111 A.L.R. 838-846. Although ap-pellee contends there is a presumption here that a trustee was appointed and qualified, there is no evidence authorizing the court to determine as an undisputed fact that appellant failed to schedule the asset except his answer, “I don’t remember.” We do not believe the additional presumption that the property was unscheduled is to be indulged so as to authorize peremptory judgment. Perkins v. Alexander, above. Reversed and remanded.


author: BELL, Chief Justice.

text:
    Verna L. SCHYROCK, Appellant, v. Bert Laroy SCHYROCK, Appellee.
    No. 13879.
    Court of Civil Appeals of Texas. Houston.
    Jan. 18, 1962.
    R. A. Richardson, Kountze, Frank Mabry, Houston, for appellant.
    Edward L. Lasof, Lee Roy Janicek, Houston, for appellee.
   BELL, Chief Justice.

Appellee recovered judgment against appellant in Harris County awarding him a divorce.

There are really two questions for us to consider: (1) Did the appellee establish his residence in Harris County for a period of six months immediately prior to filing suit, by full and satisfactory evidence? and (2) Did the appellee establish grounds for divorce by full and satisfactory evidence?

Appellant and appellee were married in April, 19S9. Appellant was buying a home at Kountze in Hardin County. After their marriage appellee moved into the home. Unquestionably in the light of all the facts, adduced, appellee up until May 26, 1960 had his residence in Kountze. He does not contend otherwise. He contends that he changed his residence to Harris County about May 26, 1960. He filed his petition for divorce in Harris County December 16, 1960. In his petition he alleges he and appellant lived together as husband and wife until October 12, 1960, when he was forced to separate from appellant. On said October 12 his wife was living in Kountze in the home where she and appel-lee had lived together since their marriage. To establish residence in Harris County ap-pellee testified he went to Houston May 26 intending to live there. He rented a room by the week in a home and continued to pay rent each week and he stayed there when he was in Houston. He was away a good deal of the time because his work required him to travel. He notified his company of his change of address. He never told his wife of any intention to separate from her or of his intention to establish a residence in Houston. After he says he moved to Houston he admits he spent a few nights in the home at Kountze. As late as the early part of October, 1960 he went to Kountze, went to a dance at the Country Club and then spent the night in the home there.

We are of the view that the evidence does not fully and satisfactorily establish that appellee had established his residence in Harris County for a period of six months immediately preceding the filing of the petition on which he went to trial. The rule that a divorce may be granted only upon full and satisfactory evidence applies to proof of residence. Nolen v. Nolen, Tex.Civ.App., 196 S.W.2d 529; Snodgrass v. Snodgrass, Tex.Civ.App., 250 S.W.2d 624. While appellee testified he rented the room in Houston intending to make this his home, he also alleged in his petition and testified he did not separate from his wife, who lived in Kountze, until October, 1960. Too, after he rented the room, which he rented only by the week, he spent a few nights in the home in Kountze. All of the time he failed to tell his wife he had decided to move their home to Houston. While we recognize a husband has a right to choose the place of residence, we do not feel that renting a room by the week in another city without saying anything to his marital partner about it, and while he is not separated from her, is sufficient to show he has in fact established a residence different from that where his wife lives.

We are also of the view that the evidence introduced to establish grounds for divorce is not of that full and satisfactory nature required by law. Under Article 4632, Vernon’s Ann.Civ.Tex.St., it is required that the evidence establishing facts which in law constitute grounds for divorce be full and satisfactory. McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459; Garcia v. Garcia, Tex.Civ.App., 185 S.W.2d 227; Gunther v. Gunther, Tex.Civ.App., 297 S.W.2d 725; Robinson v. Robinson, Tex.Civ.App., 235 S.W.2d 228.

In passing on the question of whether the evidence is full and satisfactory, we may not pass on the credibility of witnesses as does the trial court. However, we have the same duty as the trial court in appraising the evidence which tends to establish grounds for divorce. Assuming to be true all evidence which tends to establish legal grounds, does it reach the quality of being full and satisfactory? Trivial conduct does not suffice. Equivocal testimony tending only to establish grounds does not suffice. Mere conclusion characterizing unspecified conduct does not suffice.

Appellee testified he and appellant lived together about three months. “After that (the three months’ period) from time to time it seemed as though when I came in off the road it was a continual argument and bitterment. Nothing went right. Very seldom I got a chance to visit with her.” In answer to his counsel’s question as to whether he had any arguments with his wife, he answered, “Yes, numerous arguments. The fact about it, there was seldom a week or weekend that I came that there wasn’t an argument * * * One argument was in regard to her working the way she was and no more time than we had to spend together, but I think our biggest argument was about * * * my boys in Houston and I wanted to visit with them and she was against that.” She didn’t want him to send the money the court had ordered and she told him she had consulted an attorney and he did not have to pay child support after the children were 17. He said he agreed to pay until they were 18. Appellee testified the arguments had caused a return of an ulcerated stomach. He had not had trouble with it for 8 years before the marriage. He complained about her long hours at the beauty shop she owned. They would argue about that. Each Sunday he had to entertain her children and clean house. He asked her to slow down. She frequently had temper tantrums. The cause of them was his boys, her work and the very little time they spent together. Once when they were having an argument she poured beer on him. On one occasion he saw appellant drinking beer at a grocery store with another man. Appellee had bought the beer. One time appellant tried to destroy some of his records. This was on the night he left to move to Houston in October, 1960. He was nervous, couldn’t sleep and lost about 14 pounds in weight. When he was leaving in October appellant threw an ash tray at him. There were cockroaches in the house. One time in a rage she threw a shaving kit at him but he doesn’t remember when it was.

On cross-examination appellee testified that in October, 1960 he attended a dance at the Country Club in Kountze with his wife. He wasn’t too concerned about the cockroaches in the house and he didn’t feel imposed on when he had to clean house. When they had quarrels he would sometimes start them. He was asked the question, “You are not trying to tell the court every time this lady jumped on you?” Ap-pellee answered, “I might have brought up the point. I am sure the argument started after that.” Then there was the question, “When you brought the point up you realized you were starting an argument, didn’t you, Bert?” Appellee answered, “Well, if you have a guarantee I am going to do this or that it rumpled her feathers every time I brought it up because she wasn’t living up to the agreements we had.”

We are of the view the evidence fails to show a course of cruel, harsh and tyrannical conduct that renders their living together insupportable. The arguments were no more than mutual disagreements about matters that frequently happen between husband and wife. In fact, we are impressed that under appellee’s own testimony he was probably as much responsible for them as she. There is really no serious physical violence shown. There were three isolated minor acts of physical misconduct, that is, pouring of the beer, throwing of an ash tray, and throwing of the shaving kit. These were done only in a momentary fit of anger. Too, apparently they were done in the home with no outsiders as witnesses. There was no studied continual course of such conduct.

Being of the view that there is not full and satisfactory evidence, we must reverse and remand the case. If residence has been established by appellee in Harris County for the requisite length of time, an amended petition may be filed. On retrial a fuller development of the facts may show full and satisfactory evidence.

Judgment of the trial court is reversed and the case is remanded.


text:
    Reginald DURK, Appellant, v. AMERICAN AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 13824.
    Court of Civil Appeals of Texas. Houston.
    Jan. 11, 1962.
    John B. Womack, Jr., Harry Burns, .'Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Gibson Gayle, Jr., James B. Sales, Houston, for appellee.
   BELL, Chief Justice.

This is a workmen’s compensation case. Appellant was a meat cutter employed by Commercial Wholesale Meat Company. On August 19, 1958, he received an injury while working within the course and scope of his employment. As found by the jury the accident caused a hernia and an injury to his back. The jury found the hernia was caused by the accident and awarded appellant recovery therefor. No complaint is here made of that recovery. The record shows a complete recovery, after an operation, from the hernia. As mentioned above, the jury also found the appellant received an accidental injury to his back. However the jury then found, in answer to Special Issue No. 2, that the injury to the back was not the producing cause of any incapacity. Too, the jury found in answer to Special Issue No. 18 that the hernia was the sole cause of appellant’s incapacity.

Here the sole question for our determination is whether the jury’s finding that the injury to the back produced no incapacity is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust

In determining whether the evidence is insufficient to support a jury’s answer to an issue, we must consider the whole record. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Bardwell v. Anderson, Tex.Civ.App., 325 S.W.2d 929, ref., n. r. e.; Dyer v. Sterett, Tex.Civ.App., 248 S.W.2d 234. In appraising the record, we may not substitute our judgment for that of the jury just because we, had we been the triers of the facts, would have found differently from the jury. Their findings must be so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. Continental Bus System, Inc. v. Biggers, Tex.Civ.App., 322 S.W.2d 1, ref., n. r. e.

Under the Workmen’s Compensation Law it is not merely an injury for which compensation is provided but on the contrary compensation is to be made only for such incapacity as has been caused by the general injury, such as we have here.

Appellant was injured while lifting a heavy section of beef at the Commercial Wholesale Meat Company on August 19, 1958. He states he felt intense pain on his right side from the middle of his back at the hip line to his abdominal region. Despite the pain caused by the injury, he continued work for five or six weeks when it was necessary to have the hernia repaired. His real complaint up to this point had been of the pain associated with the hernia. When appellant went to have the stitches removed he complained of low back pain but his doctor attributed the pain to the use of a spinal anaesthesia in the hernia operation. When the pain continued, appellant was sent to another doctor for x-rays. A myelogram was run. The x-rays taken evidenced a narrowing of the disc space between L-4 and L-5. Appellant was then sent to an orthopedic specialist for clinical examination. The clinical examination was consistent with the showing of the x-ray. The doctor testified it was his opinion that appellant suffered a ruptured disc and was not able to work. However, he also testified such an injury affected different people differently.

Other testimony was from appellant’s wife and some friends who had only social contact with him. They testified in substance to personality changes evidenced by a change from being a rather vivacious, energetic person who showed marked interest in things about him to a person who seemed tired and uninterested in what was going on about him.

The record shows that shortly after appellant recovered from his operation, he procured a job as meat cutter in a retail store of Henke and Pillot at a wage of $95.00 per week. At the time of trial his weekly wage was $97.00. Prior to the injury his weekly wage had been $85.00. Appellant continued to work for his new employers at two different stores from December, 1958 until trial in November, 196,0. He had missed no time from work due to any illness or injury. His employer’s representatives testified that his work was pleasing and he would continue to have his job. His fellow employees, including his supervisors, testified that appellant did his work well and made no complaint of injury or pain from injury. His hours on the new job were 40 per week while at the old job he worked 68 hours per week. However, the work was substantially the same.

We have merely summarized the substance of the whole record. We feel the evidence is such that it would have supported a jury finding either way on the issue of incapacity. We are unable, however, to say that the jury finding of no incapacity is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong.

The judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO et al., Appellants, v. Clarence B. WILKINS, Appellee.
    No. 13813.
    Court of Civil Appeals of Texas. Houston.
    Jan. 11, 1962.
    Rehearing Denied Feb. 1, 1962.

      Sewall Myer, Houston, for appellant.
    Al L. Crystal, Houston, Ambrose Luko-vich, Galveston, for appellee.
   WERLEIN, Justice.

This suit was brought by appellee, Clarence B. Wilkins, against appellant for damages which appellee alleges he suffered as a result of being indefinitely suspended from membership in the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, a national labor organization hereafter referred to as International or .Union, and from membership in Local Union No. 132 of said International Brotherhood, hereinafter referred to as Local 132. The trial court rendered judgment in favor of appellee for $7,000.00, based upon the jury verdict consisting of answers to two issues.

In answer to Special Issue No. 1 the jury found that the Trial Committee appointed by the president of the International Brotherhood was arbitrary, capricious and acted in bad faith in arriving at its decision. It is appellant’s contention that there is no evidence of bad faith, arbitrariness or capriciousness upon the part of the Trial Committee, and that the constitution of the International Brotherhood was substantially complied with in connection with the proceedings which resulted in the indefinite suspension of appellee from the Union, and that the court erred in not granting appellant’s motion for judgment non obstante veredicto.

The evidence shows that on August 11, 1955 appellee, a member of Local 132, called at the office of J. R. Huff, the Business Agent of said Local in Galveston, Texas, and that an argument ensued between appel-lee and Mr. Huff with respect to appellee’s claim that he was not getting his fair share of employment. After words passed between the two men, appellee left the office and returned approximately 30 minutes thereafter, and asked again to see Mr. Huff, who was in his own office adjoining' his secretary’s office where appellee applied. Mr. Huff ieft his office and entered his secretary’s office where he sat down to talk with appellee who was standing on the other side of the partition wall between the office and the hall. After some words between them appellee drew a pistol, and, firing through an opening in the glass partition between the hall and the secretary’s office, shot Mr. Huff as he sat in his shirt sleeves by his secretary’s desk. Then ap-pellee broke a part of the glass partition which he said was foggy and obscured his vision, and again shot Mr. Huff, who had arisen from his chair. Mr. Huff fell and died without regaining consciousness. Ap-pellee testified that he did not see any gun in the secretary’s office or on Mr. Huff, but that he had to kill him. He also said that •before he shot Mr. Huff, Huff had reached for a drawer in the secretary’s desk. Mr. Huff was unarmed and there was no gun in the secretary’s desk or office.

Later appellee sent a $10.00 cashier’s check dated September 8, 1955, to Local 132 in payment of his August and September dues. His check was returned with a letter from the Union’s District Representative on September 13, 1955, advising him that his membership had been suspended by the International President. Appellee then sent a letter on September 19, 1955 to the International President, enclosing said dues and stating that it was his understanding that under the constitution of the International, a member before being suspended had to be notified and brought to trial and that if he was under suspension he demanded an immediate trial. To such letter the International President replied on September 27, 1955 that he was endeavoring to obtain a Trial Committee under Article V, Sec. 3(b), page 19, of the constitution; that appellee’s insurance would be protected pending a report of the Trial Committee; and that appellee would be notified of the date, time and place to appear before the Trial Committee. On the same day the International President wrote a letter appointing a Trial Committee and charging that the killing of Mr. Huff was in violation of the declared policies of the International Brotherhood, as follows:

“September 27, 1955
“File: L-132-55-3
“Mr. L. C. Roberts, B.M. L-37
“2005 Melpomene Avenue
“New Orleans, Louisiana.
“Mr. M. F. Thomas, B.M. L-74
“8203 Leander Street
“Houston, Texas
“Mr. E. A. Vincent, B.M. L-79
“932i/2 Bilbo Street
“Lake Charles, Louisiana.
“Gentlemen and Brothers:
RE: Clarence- Benson Wilkins •
Register #542323
2006 Bogota Street
LaMarque, Texas,
“Under the authority conferred upon me as International President of the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, by Article V, Section 2 of the International Lodge Constitution, I have suspended from membership in this International Brotherhood and in Local Lodge No. 132 of Galveston, Texas, Clarence Benson Wilkins, Register No. 542323, because of the unprovoked murder of J. R. Huff, Business Manager of Local Lodge No. 132.
“The said suspension was made under the authority of Article V, Section 3(a) of the International Lodge Constitution. In my opinion as International President, great and irreparable damage may be done to the International Brotherhood and to Subordinate Lodge No. 132 by my failure to act.
“I have therefore, appointed a Trial Committee of three members of which you are one.
“My reason for peremptorily exercising the said authority is that on Thursday, August 11, 1955, the said Clarence Benson Wilkins did, in the office of Local Lodge No. 132, shoot and kill the said J. R. Huff, Business Manager of said Local Lodge 132, and that the said killing was without lawful provocation. The said killing was in violation of the declared policies of the International Brotherhood.
“I request you to familiarize yourself with Article V of the International Lodge Constitution, and note that paragraph (b) of Section 3 of the said Article V provides that the Trial Committee shall, within ten (10) days following the receipt of this statement, convene in the City of Galveston, Texas; that upon so convening the Trial Committee shall organize and shall at once dispatch a copy of this statement of the International President to Subordinate Lodge No. 132 and to the accused member, Clarence Benson Wilkins; and that the Trial Committee shall notify the accused, Clarence Benson Wilkins, to appear for trial before the said Trial Committee, at a time and place in said notice designated which shall be five (5) days from the date of dispatching the said notice, unless the accused desires more time up to, but not more than fifteen (15) days.
“Fraternally,
“/s/ W. A. Calvin
“WILLIAM A. CALVIN
International President
“wac :mc
“cc: J. P. McCollum, I.V.P.
“oeiu#320afl”

On October 6, 1955 the Trial Committee notified appellee of its appointment and sent him a copy of the foregoing charges and notified him of the date, time and place where the Trial Committee would hear and determine his guilt or innocence upon such charges. Appellee appeared at such hearing accompanied by a Mr. Clark, not an attorney at law but a member of the Union, who represented appellee as his counsel at the hearing. At the conclusion of the trial ap-pellee’s counsel expressed his appreciation to the Committee as a whole for the fair and just manner in which it had conducted the trial. Shortly thereafter the Committee rendered its decision in writing that appellee was guilty of shooting and killing Mr. Huff, and assessed the penalty of indefinite suspension.

Appellee appeared in person at the hearing and testified before the Trial Committee. There was no evidence before the Committee other than appellee’s testimony and the written statement made by Mr. Huff’s secretary, Pauline Overly, who did not actually see the shooting but who heard the argument preceding the shots and the breaking of the glass partition by appellee. Appellee’s counsel agreed to the submission of the written statement by the secretary who was understood to be ill, and did not request any postponement for the purpose of bringing her in person before the Committee.

The Trial Committee sent a transcript of the hearing to Mr. Calvin, the International Brotherhood President, who approved the Committee’s indefinite suspension of appel-lee. Appellee was given an opportunity to appeal to the Executive Council of the International, but stated that he was financially unable to go to Kansas City where the Executive Council met, and neither he nor his counsel appeared at the hearing before the Executive Council. The Executive Council approved the Trial Committee’s action indefinitely suspending appellee from the Union.

The controlling question in this suit is whether or not there was any evidence of probative force that the Union’s action in indefinitely suspending appellee was arbitrary, capricious and in bad faith. If there was such evidence, then the court did not err in submitting the issue to the jury and in refusing to enter judgment non obstante veredicto. Appellee had a right to prosecute his suit for damages if his suspension was wrongful and not in conformity with the constitution of the International Brotherhood. International Printing Pressmen etc. v. Smith, 1946, 145 Tex. 399, 198 S.W.2d 729; Anderson v. Painters’ Local Union No. 318, Tex.Sup. 1960, 338 S.W.2d 148; St. Louis & S. W. Ry. Co. of Texas v. Thompson, 1908, 102 Tex. 89, 113 S.W. 144.

Appellee contends that there is evidence that the action of the Union was arbitrary and in bad faith and he points to several statements and circumstances which he says warranted the submission of said issue and support the jury’s answer thereto. He asserts that the International President did not comply with the constitution in suspending him without first giving him notice, and violated the constitution in failing to appoint a Trial Committee within the time therein specified, and in failing to give the Trial Committee a written statement of his reasons for peremptorily suspending appellee, and also in failing to give appellee proper notice of the hearing before the Trial Committee. Appellee probably waived any such irregularities, if such there were, by voluntarily appearing before the Trial Committee and fully presenting his case. But regardless of this, we think that the preliminaries prior to the hearing substantially complied with the requirements of the constitution of the International.

Article V, Section 2 of the constitution gives the International President power to suspend a member of a local lodge when in his judgment the actions of a member are in violation of the International Lodge constitution and/or subordinate Lodge constitution or in violation of the declared policies of the International Brotherhood. Article V, Section 3(a) provides in substance that when in the opinion -of the International President great and irreparable damage shall or may be done to the International Brotherhood or to the affected District or Subordinate Lodge by his failure to act, he may suspend a member prior to giving him notice. This is exactly what the International President did, as shown by said letter of September 27, 1955. It is true that he did not within ten days of the suspension appoint a Trial Committee, but he did appoint such Trial Committee within fourteen days from the date of the letter of the District Representative, C. E. Alexander, Jr., notifying appellee of his suspension. We think this substantially complied with the constitution. The delay did not in any way prejudice appellee.

Article V, Section 3(b) of the constitution provides in substance that the International President shall give to the Trial Committee a written statement of his reasons for the peremptory exercise of his authority and a specified recital of the violation of the International Lodge constitution and/or subordinate Lodge constitution, or of the declared policies of the International Brotherhood, of which the International President believes the member to be guilty. This was done by the International President in his letter of September 27, 1955. The constitution further provides that the Trial Committee shall then convene and shall at once dispatch a copy of said statement of the International President to the Subordinate Lodge affected and to the accused to appear at a time and place therein designated which shall be five days from the ■date of dispatching said, notice unless the ■accused desires more time up to but not more than fifteen days. The Trial Committee complied with the constitutional requirements by duly notifying appellee of the ■date, time and place of the hearing and furnishing him a copy of the statement of the International President, which although not as precise in form as a legal indictment, ■did advise appellee with what he was ■charged and would be tried.

The letter clearly charged that the killing was without lawful provocation and in violation of the declared policies of the International Brotherhood. The uncon-troverted testimony of Vice President Mc-Collum was that to his knowledge for many, many years prior to August 11, 1955 the declared policy of the International Brotherhood as referred to in the constitution with reference to a member assaulting an officer, was that if the member is tried and found guilty he is suspended from membership by the Brotherhood.

Mr. L. C. Robert, a member of the Committee, acted as chairman at the hearing and read the charge. No postponement of the hearing was requested by appellee to .obtain witnesses, although his counsel did request the Committee to recommend to the International President that the trial be held in abeyance until appellee had been tried in the civil courts. Such request was properly overruled by Mr. Robert on the ground that the Committee was not to be governed by the court. The trial proceeded in an orderly manner and appellee testified fully. Appellee’s counsel agreed that the written statement of Pauline Overly be accepted in evidence. Appellee complains that at one point in the hearing, while Mr. Robert was asking appellee some questions and Mr. Vincent, another member of the Committee, was presiding, Mr. Robert made a statement evidencing prejudice against appellee. The following is what occurred:

“Robert: When you went into the building you had a gun in your pocket ?
“Wilkins: Yes.
“Robert: In the heat of the argument you had the presence of mind to walk out for fear that trouble would arise?
“Wilkins: Yes.
“Robert: You went around the corner and approximately ½ hour elapsed before you returned. Don’t you think you had time to cool off and realize that you should go home?"
Clark objected to this question.

Robert stated that he thought that if Wilkins ha.d gone home when he left the hall the first time the trouble would not have happened.

Clark objected.

Chairman Vincent sustained the objection.

■ Robert’s comment to which an objection 'was sustained was a statement of an obvious fact from which no reasonable inference of prejudice or bad faith could be drawn.

' Appellee also asserts, in an attempt- to show prejudice and bad' faith on the part of the Union, that J. P. McCollum, a vice president thereof, had been charged by a Mr. Head with certain reprisal actions against appellee. Mr. McCollum denied the charges. He testified at the trial of the case in the District Court that he did not know appellee at the time of the shooting; -that after the shooting he was not in touch with the things that were done in connection with bringing appellee to trial or suspending him; that although he was a member of the Executive Council of the International, he took no part at the hearing by the Council because of the Union’s policy that the vice president, whose district included the affected area, shall not vote or make any recommendations; and that the charges of Mr. Head against him were thrown out by the McClelland Committee after a hearing. The uncontradicted evidence also shows that the unsigned article in the October, 19SS issue of the Unions’ Journal published in Kansas City, in which it was stated that James R. Huff was coldbloodedly shot to death in his office, was not read at the Committee hearing. Mr. Vincent, a member of the Committee, testified he had never seen the statement. There is no evidence that the other members of the Committee had read the article.

In determining whether there was any evidence that would warrant the submission of Issue No. 1 inquiring as to whether the Trial Committee was arbitrary, capricious and acted in bad faith in arriving at its decision, and in passing upon the Trial Court’s refusal to enter judgment non obstante veredicto, all evidence must be considered in light most favorable to appel-lee and every reasonable intendment deducible from the evidence must be indulged in his favor. Collett v. Collett, Tex.Civ.App. (1948), 217 S.W.2d 60, writ ref., n. r. e.; Reserve Life Ins. Co. v. Everett, Tex.Civ.App.1955, 276 S.W.2d 926; Maxey Lumber Company v. De Graw, Tex.Civ.App., 278 S.W.2d 607, writ ref., n. r. e.

We have carefully examined and reviewed the entire record, including the proceedings had before the Trial Committee, and the exhibits introduced in evidence. Considering the evidence in the most favorable light to appellee, we have concluded that there is no evidence in this case that either the Trial Committee or the Union or the International President acted arbitrarily or capriciously or in bad faith in indefinitely suspending appellee from membership in the International Brotherhood and Local 132. We think there is nothing in the record that shows that the Trial Committee did not exercise an honest judgment. The record shows that the Committee acted upon substantial evidence which warranted their finding and decision. Even if we entirely disregard the statement of Pauline-Overly, the admissions and testimony of appellee himself constitute substantial evidence of conduct justifying appellee’s indefinite suspension from the Union on the-charges preferred against him.

In our opinion it was error on the part of the Trial Court not to grant appellant’s motion for judgment non obstante veredicto.

The judgment of the trial court is reversed and rendered.


author: FRASER, Chief Justice.

text:
    L. W. HURST, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 5486.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 27, 1961.
    Rehearing Denied Jan. 31, 1962.

      Warren Burnett, Odessa, Ed Keys, Monahans, for appellant.
    Turpin, Kerr, Smith & Dyer, Max N. Osborn, Midland, for appellee.
   FRASER, Chief Justice.

This is a workman’s compensation case. Appellant bases his appeal on the failure of the trial court to rule on or grant his motion for a new trial, causing same to be overruled as a matter of law, and further, on alleged jury misconduct and conflict in the jury’s answers to the special issues.

The facts, roughly, are that appellant, L. W. Hurst, was injured September 28, 1957, and was operated on for hernia on October 22, 1957. Apparently appellant was released by his doctor for return to full duty January 24, 1958. In his brief,, however, he alleges that he returned to work December 26, 1958. It appears from the record that between the time of the original injury and the trial of this case, appellant had developed a second hernia. He also alleged that he was suffering from some back injury. The jury’s answers to the issues resulted in a verdict by the court that appellant take nothing, on the ground that the injuries found by the jury had already been paid for- — to-wit, fifteen weeks.

Appellant’s first point charges that the jury agreed to award him a given sum of money as compensation; that the jury attempted to return a “money verdict” in a workman’s compensation case; that the jury deliberately considered the legal effect of its answers to the issues;, that the jury discussed and considered unsworn testimony; that one juror assumed that a particular issue was immaterial and answered same contrary to his belief; that one juror relied on another juror’s representation that the answer to an issue was immaterial.

It is urged by the appellant that each item is error within itself and that, cumulatively, the group of errors likely caused an improper verdict to be rendered. It must be borne in mind that the trial iudge made no findings on the motion for a new trial and did not overrule same, but permitted the motion to become overruled as a matter of law. We have not found any cases bearing squarely on this matter, but assume that we must find all reasonable presumptions in favor of the judgment, and in the absence of an affirmative ruling by the trial judge assume that he found no reason or sufficient justification to grant the motion for a new trial. Also, it must be further noted,, as we consider this case, that the burden is on the proponent, or appellant, to prove the happening or occurrence of the alleged error, and that such error caused injury to appellant and probably caused a wrong judgment to be rendered, the occurrence and particulars of the alleged misconduct being a matter of fact, the extent of the harm, if any, and its effect being a matter of law.

In taking up the first three items — to-wit, the alleged agreement of the jury and its alleged attempt to return a money verdict,,' and the allegation that it considered the legal effect of its answers— we do not believe that error has been sufficiently proven here, or that same did or •likely could have resulted in harm to the appellant. First of all, the record taken at the hearing on the motion for new trial shows that the two jurors, Tampke and Sharp, stated that they and the jury thought that appellant needed about $2800.00 to make him whole, or put him back on his .feet, and that they thought that that is what he ought to have, and that they thought that was what they had given him. When they discovered that it did not turn out that way, they apparently made this fact known to appellant or his attorney, on the ground that that was not the result they had intended to accomplish. This information was gleaned from affidavits and testimony in the above-mentioned record; but also, in such testimony, these jurors both said that they attempted to answer the issues in accordance with the evidence and the court’s charge. In the absence of a direct 'finding by the trial court, whose action was merely to decline to grant a new trial,, but who knowingly permitted the motion to become overruled by operation of law, we must resolve these conflicts as best we can, and it is our opinion that they should be resolved as nearly as possible in support of the judgment and action of the court below. Only two jurors appeared to have been called, or to have testified, and both jurors testified that they had thought the plaintiff should get a sum of money, but they also stated that they followed the evidence and charge of the court in answering the issues. So, there being a conflict in the testimony of each of the two jurors called, we feel that such conflict must be resolved in favor of the judgment or verdict of the court below, and we so find. Also, with regard to these matters, it must be pointed out that if these matters are taken and considered to their fullest extent from the appellant’s point of view, the jury was merely trying to do an illegal thing in order to render what they thought was justice for the appel-' lant — to-wit, return a money judgment and answer the issues to that end. We do not think the appellant has proven any error in this field, as it has been stated that it is not a sound principle of law that an appellant may obtain a reversal of a judgment favorable to appellee on the theory that he would have obtained a better judgment through jury misconduct. (Grady v. Dallas Railway & Terminal Co., Tex.Civ.App., 278 S.W.2d 282, n. r. e.). That seems to be the situation here, as well as the fact mentioned above, that we do not find harm, as the jury was apparently trying to give him more than he got.

With regard to the next subdivision of Point 1, it was stated by two jurors that they heard another juror mention a hernia that he had had, and another juror say something about a hernia that some relative had. The names of such jurors are not in the record, nor is there any quotation from them or information as to how much or what was actually said. We cannot evaluate this matter on such an absence or dearth of information. It is not every error that is harmful, and we must hold here, as a matter of law, that appellant has failed to prove that these occurrences resulted in harm or injury to him and likely caused an improper verdict to be rendered. In the absence of any testimony from the actual jurors alleged to have made these remarks,, or any definite statement as to what they said in particular, we must hold that this point has not been proven to the extent that error is established.

Next, the appellant alleges that one juror assumed that a particular special issue was immaterial, and answered same contrary to his belief; and further, that one juror relied on another juror’s representation that the answer to an issue was immaterial. Misconstruction of the charge or a portion thereof does not necessarily constitute error, nor can the mental processes of a juror be inquired into or revealed. Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364.

There is no proof as to what the representation was in actual words, or who made it, or what, if any, discussion followed. This applies to the next subdivision of this first point, where it is alleged that it was represented to one juror that it was immaterial how they answered one issue. Again, we are met with this conflict regarding the above three subdivisions, because the two jurors who did testify stated that they based their answers on the evidence, as the court had instructed them to do. In fact, juror Tampke testified as follows:

“Q. Mr. Tampke, you say as far as you know, and all the other jurors made a determined effort, did you not, to answer the questions as the court gave them to you, you were going through them one by one ?
“A. Yes, sir.
“Q. Based on the evidence that was adduced during the trial, is that correct?
“A. Yes, sir.
“Q. You made a real effort to do that just as the court had told you to, did you not?
“A. Yes, sir.”

The other juror, Mrs. T. J. Sharp, said, “We took those questions one at a time and tried to answer them to the best of our ability, and that is what we thought we did.” Further:

“Q. You based your answers only on the evidence as the court instructed you to do?
“A. Yes, sir.”

Again, we feel that appellant lacks proof to establish reversible error in that, as stated above, the errors complained of are not sufficiently substantiated by detailing the alleged conversations, or even naming the various speakers. Secondly, we believe that, with this conflict confronting us, we are obligated to resolve the same in support of the judgment under the conditions here present. Even though the facts be partially proven here we do not find enough to warrant our holding,, as a matter of law, that probable harm resulted. It is not the function of appellate courts to overturn verdicts, but to ascertain if harmful and material error has occurred, and if such probably caused a verdict unfavorable to appellant to have been rendered. The Supreme Court, speaking through the Commission of Appeals, in the case of Monkey Grip Rubber Company v. Walton, 122 Tex. 185, 53 S.W.2d 770, points out that mere agreement by the jury during deliberation as to which party is entitled to verdict is not reversible error, but that it must be shown that the jury deliberately attempted to cause this effect by the framing of their answers. This case also holds that the appellate court must presume in support of denial of new trial sought because of juror’s misconduct; that trial court gave testimony most favorable construction and determined no misconduct occurred. Here we have the failure or refusal of the trial court to pass on the motion, thereby causing it to be overruled as a matter of law, but we believe the above principles should apply in this situation. See also: Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62; Kimble v. Younger Bros.—J. M. English Truck Lines,, Inc., Tex.Civ.App., 283 S.W.2d 254 (n. r. e.); Trice Contract Carpets & Furniture Co., Inc. v. Gilson, Tex.Civ.App., 329 S.W.2d 476 (n. r. e.) ; Millstead v. Aynesworth, Tex.Civ.App., 341 S.W.2d 942 (n. r. e.).

In closing this rather difficult point, we should like to state that we believe that, where the trial court had ample opportunity either to grant or specifically overrule the motion for new trial, but did neither and merely permitted it to be overruled by operation of law (he is certainly presumed to know the law), such action, while perhaps not as strong as a deliberate refusal of the motion, nevertheless evidences the trial court’s disinclination to set aside the verdict and judgment. Appellant’s first point is accordingly overruled.

Appellant’s second point alleges that the trial court erred in failing to rule on his motion and in failing to grant same on account of jury misconduct. As argued by appellant, where misconduct has been established, question of probable injury becomes one of law, and the court must examine the entire record. Western Cottonoil Co. v. Arnold, Tex.Civ.App., 279 S.W.2d 374.

We have examined the entire record and do not believe that appellant has been able to present sufficient proof here to warrant us in reversing this case. We will not further elaborate on the finding other than to refer to the discussion and authorities presented and cited with reference to the preceding point, with special reference to the fact that misconduct must be proven, and proven harmful, and the mere agreement as to which party is entitled to verdict is not necessarily reversible error. This point is therefore overruled.

Appellant’s third point alleges that the jury’s answers to the special issues are in conflict, on the ground that in answer to Special Issue No. 7, the jury found that plaintiff had not or will not sustain any partial disability as a result of his September 28, 1957 injury; and then, in answer to Special Issues Nos. 15, 16 and 17,, the jury found that appellant received a second hernia subsequent to September 28, 1957; that such was the result of injuries received by appellant on September 28, 1957, and that this second hernia did contribute to his present disability. Summing up, the jury found in answer to the first six issues that Mr. Hurst sustained injury to his body as the result of accidental injuries; that such rendered him totally incapable of labor; that such total incapacity was temporary; and that it began October 22nd and lasted for a period of fifteen weeks. Then, in Issue No. 7, this jury found that Mr. Hurst had not sustained and would not sustain partial disability as the result of his September 28, 1957 injury. This seems to us to be a total disposition of the problem. Having found that the total incapacity had terminated, and that partial incapacity did not and would not exist, we do not believe that the answer to Issue No. 17, with its companion and subsequent issues numbers 18 and 19, could have,, or did have, any effect; and we feel that that, in effect, is what the trial court also held. This point is overruled.

Appellant’s fourth and last point is that a just verdict was not rendered because the trial court failed to act on his motion for a new trial, or to grant same. We think this point has been covered by our preceding discussion, and it is therefore overruled.

We overrule all of appellant’s points and declare the judgment of the trial court affirmed.


author: LANGDON, Chief Justice.

text:
    Mittie HARBISON et vir, Appellants, v. Vin L. JEFFREYS, Appellee.
    No. 5488.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 6, 1961.

      Warren Burnett, Odessa, Ed Keys, Monahans, for appellants.
    McDonald, Shafer & Gilliland, Lucius D. Bunton, Odessa, for appellee.
   LANGDON, Chief Justice.

This is an appeal from a summary judgment in favor of defendant growing out of a common law suit for damages brought by tenant (appellant herein) against her landlord (appellee herein), for personal injuries to, and the death of, the tenant’s minor son, which allegedly resulted when a swing set, located on premises owned by appellee, collapsed and fell. The premises involved in this litigation consisted of four 60-foot lots making a rectangular tract of land 120 by 240 feet in size, on which were located eight small (1 and 2 bedroom) rental units, all of which were leased to various tenants, of whom appellant was one. The swing in question had been constructed and placed on the premises by another tenant for the use of such tenant’s own children.

Appellant alleged that appellee owned and had under his control a number of •rental units, which enclosed a common area for the use of the tenants of the various units, and that appellee was negligent in placing a defective swing on the play area or common area, or permitting it to remain on the common area, the swing constituting a latent danger; that, in the alternative, appellee was negligent in leasing a portion of the common area which, at the time of leasing, contained a latent, hidden danger, and that such negligence was a proximate cause of appellant’s damages.

On September 23, 1959, appellee filed his original answer in which he specially denied the allegations in appellant’s petition and alleged that the swing belonged to and was the property of persons other than himself; that the swing was located upon property which had been leased to other tenants, and that the swing was the property of and belonged to the tenants occupying the premises upon which the swing was located. Appellee denied that he kept or maintained any swing, or any other equipment, as alleged by appellant, and that such swing was being used by appellant’s deceased son without appellee’s knowledge.

On January 15, 1960, depositions of appellant and appellee were taken. Thereafter, on March 24, 1960, appellee filed his motion for summary judgment and attached thereto (in addition to the depositions that were made a part of such motion by reference) the affidavit of one Annie M. Smith. On August 5, 1960, after due notice, and at a time more than four months subsequent to the filing of ap-pellee’s motion for summary judgment, a hearing was had thereon. Appellant filed no answer to appellee’s motion prior to such hearing, nor did she file any controverting affidavits at any time. The court continued the hearing until August 22, 1960, at which time appellant filed an answer to appellee’s motion, but filed no counter-affidavits. The court, having considered the pleadings on file, the depositions, and the affidavit, granted the motion for summary judgment, and it is from this order that an appeal has been taken.

Appellant has based her appeal on four points, the first two of which are contentions that the trial court erred in granting appellee’s motion for summary judgment because a genuine issue as to a material fact, other than the amount of damages, is presented, and because the trial court failed to resolve all doubts as to the existence of a genuine issue of a material fact against the movant appellee. Points 3 and 4 are based, first, on the contention that appellant’s son was injured by hidden danger located on appellee’s yard area which was under appellee’s control; and, secondly, that a genuine issue as to a material fact is presented by the question, “If appellant’s son was injured by a hidden danger located on appellee’s yard area which was under the control of one of appellee’s tenants, was said hidden danger thereon when said tenancy commenced, or when that portion of the premises was re-let?” It was appellant’s contention that the depositions of the parties and the affidavit tendered by appellee in support of appellee’s own motion are sufficient in and of themselves to raise the fact issues, and thus render it unnecessary for appellant to controvert the motion by filing opposing affidavits.

Appellant admittedly has filed no counter-affidavits or other sworn pleadings in opposition to appellee’s motion. It is well settled, however, that if formal pleadings of the parties at the time of the determination of the motion fail to embrace all the material issues of fact, a summary judgment will not be justified; or, when the affidavits or other summary judgment evidence disclose facts which render the position of the moving party untenable, summary judgment should be denied, regardless of defects which may exist in the pleadings of the opposite party. Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233; 36 Texas Law Review 102; Kirk v. United States, 9 Cir., 232 F.2d 763. It is also equally clear that one opposing a motion for summary-judgment may not rely solely on the issues raised by the pleadings of the parties, for such issues, when raised only by the pleadings, generally are not sufficient to present a genuine issue as to a material fact such as would bar the rendition of a summary judgment when the only extrinsic evidence demonstrates the absence of any issue as to a material fact. The object of Rule 166-A, Texas Rules of Civil Procedure, is to permit the prompt disposition of just such cases, and to hold otherwise would effectually nullify the summary judgment practice.

The only extrinsic evidence before us here is that which was tendered by appellee in support of his motion. Therefore, if a genuine issue as to a material fact is presented in this case, it must be looked for in the depositions of the parties and in the affidavit of Mrs. Annie M. Smith.

Appellee testified by deposition, and his testimony is corroborated by the affidavit of Mrs. Annie M. Smith, that the swing in question was not the property of appel-lee and had not been placed on the premises by him, but that it belonged to the Smiths; that it had been made by Alvy Raymond Smith, the former husband of Annie M. Smith, for their two small daughters, out of pipe which Mr. Smith had brought in from the oil fields, and that it had been installed by Mr. Smith in their back yard on property which they rented. The Smiths had occupied the premises since 1952. Appellee did not acquire the property until 1953 or 1954; in any event, the Smiths were in possession when the property was purchased by appellee. The Smiths installed the swing some time after the property was acquired by appellee, and it had been on the premises three or four years when the accident occurred. Before the accident, Mr. and Mrs. Smith were separated; Mr. Smith moved away, but Mrs. Smith and her two daughters continued to live on the premises and were living there on the date appellant’s son was injured.

Appellant contends that the entire area back of the several rental units was a common area for use of all the tenants and was not for the exclusive use of any tenant. The record reflects that none of the so-called “common area” was separately fenced; that part of the area was devoted to three clotheslines each of which was used in common by the tenants of two or more of the eight rental units. It also appears that appellee personally managed the rental of the various units, and kept the area back of the several houses clean. All buildings on the premises were rented except a small storehouse, referred to in the record as an old “Model T” garage, which appellant contends was located in the common area.

We do not believe that such evidence is sufficient to raise a genuine issue of fact as to whether the particular part of the premises on which the swing was located was a part of a common area for the use of all the tenants. The appellee, as well as his tenant, Mrs. Smith, testified that the swing was located on property which she rented. The fact that other portions of the property were used in common by all or part of the other tenants would not alter the character of the exclusive possession of that portion of the premises rented and occupied by Mrs. Smith.

The evidence that the swing belonged to the tenant, Mrs. Smith, that it was on property which she rented, and that it was kept and maintained thereon by such tenant, and not by the landlord, is, we think, uncontroverted. Neither Mrs. Smith nor her former husband, Alvy Raymond Smith, are parties to this suit; thus, the question of their liability, if any, to appellant is not an issue here. However, a tenant will generally be held liable to third parties for injuries resulting from a nuisance on the premises which is due to such tenant’s own act or failure of duty. The swing was a mere chattel, kept and maintained by the tenant for the use of her own children, and there is nó evidence that the landlord had assumed the duty of keeping it in repair, or that he was under any duty to do so.

While it is true that the swing was placed on the premises by the former husband of Mrs. Smith at a time (during the continuance of their marital relations) when he was technically, as head of the household and manager of the community, in control of the demised premises, there is no question but that Mrs. Smith assumed exclusive possession and control over the swing after her husband left, and that she was in possession and control of the instrumentality (swing) on the date of the accident.

All of the evidence indicates that the swing was personalty and belonged to the tenant; that it had not become a part of the realty by being affixed to the ground upon which it stood. ' It simply stood on top of the grounds, and was not anchored or otherwise permánently- affixed to the realty. Assuming, therefore, that appellant is correct in her assertion that the tenancy of Mr. and Mrs. Smith was interrupted when they separated or divorced, and that a re-letting of the premises occurred by reason of the continued possession and occupation of the premises by Mrs. Smith, alone, constituting the commencement of a new tenancy — still, we do not believe that a landlord, under such circumstances, is charged as a matter of law with a duty of inspecting and warning the tenant of defects, not only in demised premises, but of defects and hidden dangers in the personal property of such tenant as well, particularly where the tenant has never quit the premises and was in possession and control thereof when the new term commenced.

We have carefully examined each of the depositions, as well as the affidavit filed by appellee in support of his motion for summary judgment, and we have, as the trial court was required to do, resolved all doubts as to the existence of a genuine issue as to a material fact against the movant-appellee; and, like the trial court, have concluded that the extrinsic evidence before us fails to show the existence of a dispute as to the facts of a controlling issue.

Appellant elected not to file counter-affidavits in opposition to the sworn testimony and the affidavit tendered by appellee, but determined that she would rely solely upon the extrinsic evidence filed by appellee to raise material disputed issues of fact. Such practice is, at best, risky; and where the only evidence before the court fails to raise a genuine issue as to a material fact, such as is the case here, appellant was under a duty to come forward with more than a mere un-sworn pleading, or suffer a summary judgment to be rendered against hér.

In order to defeat appellee’s ■ motion for summary judgment, the appellant was under a duty to deny, under oath, any sworn statement presented by appellee which was untrue; and, in the absence of any such controverting statements or counter-affidavits, the trial court was justified in accepting the appellee’s sworn statements as true, and in acting accordingly. Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236; Palm v. La Mantia Bros. Arrigo Company, Tex.Civ.App., 287 S.W.2d 208; Rountree v. Bridwell, Tex.Civ.App., 269 S.W.2d 824; Ward v. Stroud, Tex.Civ.App., 274 S.W.2d 136; Shaw v. Frank, Tex.Civ.App., 334 S.W.2d 476.

We therefore overrule appellant’s Points One and Two.

Appellant’s third point is based on the contention that her son was injured by a hidden danger located on appellee’s yard area which was under appellee’s control. We think this point, too, must be overruled. In her affidavit, Mrs. Smith stated that the swing was on property which she rented. She had lived on the same premises long before the property was even purchased by appellee; she continued in possession after he acquired it; and we believe 'she was competent to testify with respect to the identity of the property she rented. Under the circumstances, appellee having also testified by deposition that the swing was on property rented to Mrs. Smith, we think it must follow, as a matter of law, that at the time of the accident in question the property upon which the swing was located was under the control of Mrs. Smith, notwithstanding the fact that appel-lee performed yard work back of all the houses.

We -think appellant’s fourth point, which is based on the assumption that the swing was, in fact, located on premises owned by appellee, but which was under the control of one of appellee’s tenants, must also be overruled. A determination of this point involves a question of law with respect to the duty of a landlord to inspect the premises for hidden dangers at the commencement of each new tenancy or re-letting of the premises. We do not believe' that the duty to inspect extends, in any event, to an inspection of the chattels and personal effects of tenants holding over from month to month, or to situations where a husband and wife are divorced, and a re-letting of the premises results by reason of the wife’s continued occupancy in her capacity as a feme sole.

In summing up, we believe the law in Texas with respect to the question of the liability of a landlord to a tenant is quite well settled. Generally, the cases hold that in order for a Texas court to affix liability upon a landlord for personal injury to his tenant, there must exist some type of contract or agreement between the landlord and his tenant, imposing a duty .upon the landlord to keep the premises in repair, or a covenant to keep the premises in a reasonably safe condition; to hold the landlord liable to lessee the court must find that personal injury was contemplated by the parties for the negligent performance of the duties thereunder.

In the case before us, the swing was the pérsonal property of another tenant, erected for the use of such other tenant’s own children. The swing cannot be said to have constituted a nuisance per se, and though it may have constituted a latent danger by reason of some hidden defect in its construction, there is no showing that appellee was aware of such defect, or that he was under a duty to make such an inspection as might have disclosed it. Mrs. Smith was the owner of the swing, had swung in it herself. She said the swing seemed sturdy, and that she believed it to be safe enough for her own children and, to her knowledge, no one had ever been injured in the swing prior to the accident in question. The landlord (appellee) expressly denied that he maintained or controlled the swings in question or that he undertook to provide any playground or other equipment for. the amusement of the children of any of his tenants.

■ As said in Ross v. Haner, 258 S.W. 1036 (Tex.Com.App.1924), a case in which the tenant’s child had fallen from an unlatched window which the landlord had promised to repair, the court reasoned:

“Ordinarily a contract by a landlord to repair is made with a view to comfort and convenience only, and not for the purpose of protecting the tenant or a member of his family from some threatened personal injury. In such case no duty would be implied to use care for the protection against injury of this character.”

Similar holdings are to be found in the following cases: Pollack v. Perry, 217 S.W. 967 (Tex.Civ.App.1920); Perez v. Raybaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620.

Texas has no statutory provision respecting the obligation of a landlord to repair the premises and affixing liability for failure to repair. In the absence of such statute or an agreement, the tenant takes the premises in the condition that he finds them, and the landlord may be held liable for personal injuries to his tenant only if he knew of the hidden defect and failed to disclose it to his tenant. Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47, 150 A.L.R. 1369; Flynn v. Pan American Hotel Co., 143 Tex. 219, 183 S.W.2d 446; Morton v. Burton-Lingo Co., 136 Tex. 263, 150 S.W.2d 239; Fort Worth & D. C. Ry. Co. v. Mills, Tex.Civ.App., 140 S.W.2d 513.

Finding no error, the judgment of the trial court is affirmed.


author: BARROW, Justice.

text:
    AMERICAN INDEMNITY COMPANY, Appellant, v. Timothy OLESIJUK et al., Appellees.
    No. 13882.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1961.
    Rehearing Denied Jan. 17, 1962.
    Beckmann, Stanard, Wood & Vance, Seagal V. Wheatley, San Antonio, for appellant.
    A. P. Allison, Robert R. Barton, Kerr-ville, for appellees.
   BARROW, Justice.

Appellees, Timothy Olesijuk and his adult son, Andrew Olesijuk, sued appellant, American Indemnity Company, the father’s liability insurer, for medical expenses incurred by the adult son for treatment he received for injuries sustained when the father’s car, which the policy covered, in which the son was riding as a passenger, was involved in a collision with another automobile. Both appellant and appellees moved for summary judgment. The trial court granted appellees’ motion and rendered judgment in their favor for the sum of $500.00, the limit of the policy for injuries to one person.

Appellant assigns as error the action of the court in granting appellees’ motion and in refusing its motion, for the reason that the medical charges for the treatment of Andrew Olesijuk were paid by the U. S Navy and not by him, and therefore were not “incurred” by him within the meaning of the policy.

The facts in the case are undisputed. The decision of the case rests upon the meaning of the term, “all reasonable expenses incurred”, or more specifically the meaning of the word “incurred” as used in the policy.

Plaintiff Timothy Olesijuk purchased a family combination automobile policy from defendant, American Indemnity Company of Galveston, Texas, in 1959. ¡

This policy was in effect in November, 1959, when an accident occurred between the insured automobile and a truck in Kerr County, Texas. Plaintiff Andrew Olesijuk was riding as a passenger in the insured automobile which was being operated by his mother, and was injured.

At the time of the accident, Andrew Olesijuk was a physician in the United States Navy and was stationed at the United States Naval Hospital in Corpus Christi, Texas. He received treatment for his injuries from three sources in the following amounts :

1. Dr. D. E. Packard, a physician at the Sid Peterson Memorial Hospital in Kerr-ville, Texas — $150.00.

2. Dr. Richard D. Price, a physician in San Antonio, Texas — $100.00.

3. The Sid Peterson Memorial Hospital in Kerrville, Texas — $766.10.

Dr. Andrew Olesijuk entered the hospital on the date of the accident and was there treated by both of the above named doctors. The affidavits of the Administrator of the Hospital and the doctors show that their services were performed for Dr. Andrew Olesijuk and their charges and claims were against him. These affidavits were filed by appellant in support of its motion. The affidavits further show payment of the respective claims against Dr. Olesijuk by the United States Navy. When Dr. Olesijuk entered the hospital for treatment and received the same from the hospital and the doctors, there was created an implied contract to pay for such services, and he became liable therefor.

The word “incur” is a word of common usage and meaning. It has been defined by the courts in many cases in connection with numerous fact situations. Schwab v. Schlumberger Well Surveying Corp., 145 Tex. 379, 198 S.W.2d 79, 168 A.L.R. 1074; Ashe v. Youngst, 68 Tex. 123, 3 S.W. 454; Turners, Inc. v. Klaus, Tex.Civ.App., 341 S.W.2d 182; Maryland Casualty Co. v. Thomas, Tex.Civ.App., 289 S.W.2d 652; 20A Words and Phrases, p. 452. The word means to become liable to or subject to, “to bring on”, “occasion”, “cause”, or “become liable or subject to through one’s own action; bring upon oneself; as to incur liabilities or penalties.” There is no dispute as to the necessity for the medical services performed or as to the reasonableness of the charges therefor. Inasmuch as Dr. Andrew Olesijuk contracted for these services with private persons and institutions and became liable for the payment of the charges therefor, such charges were incurred by him and appellant became liable to him for such expenses so incurred.

Appellant argues that inasmuch as the charges were paid by the United States Navy, and Dr. Olesijuk did not have to pay them, and does not now owe anything for them, the expenses were not incurred by him. Appellant relies principally on United States v. St. Paul Mercury Indemnity Co., 8 Cir., 238 F.2d 594, and Protective Industrial Insurance Company of Alabama v. Gray, 40 Ala.App. 578, 118 So.2d 289. These cases are readily distinguishable. In United States v. St. Paul Mercury Indemnity Co., supra, a World War No. 2 Veteran was treated at a veterans hospital as a charity patient under the provisions of 38 U.S.C.A. § 706 [now 38 U.S.C.A. § 610], providing free care and treatment of such veteran. The Court denied recovery based alone on the fact that under the statute such treatment was free to the veteran, therefore, he could incur no liability therefor. In Drearr v. Connecticut General Life Ins. Co., La.App., 119 So.2d 149, 153, the Court said:

“Thus the plaintiff not having incurred any expenses — indeed, he could not legally do so in a veterans’ facility —has no right of recovery under the certificate of insurance issued by defendant.”

In the Gray case, supra, the insured was treated at a hospital under arrangement with the State Rehabilitation Department of the State of Alabama, whereby a portion of the hospital bill was paid by the State and the balance was to be, and was handled as charity. The insured was not and could not be liable for any amount thereof. In that case the Court held: “However, as in this case, where there exists no obligation on the part of the plaintiff to pay anything, the plaintiff cannot be heard to assert a claim for items of actual hospital expense.”

In the instant case the United States Navy reimbursed Dr. Olesijuk for his expenses so incurred, under the provisions of 10 U.S.C.A. § 6203, which states:

“The Secretary of the Navy shall prescribe regulations for reimbursing members of the naval service for expenses of emergency or necessary medical service, including hospitalization and medicines, when the member was in a duty status at the time he received the service and the service was not available from a Federal source. For the purpose of this section, a member on leave or liberty is in a duty status. Aug. 10, 1956, c. 1041, 70A Stat. 387.” (Emphasis added.)

Appellant argues that because Dr. Olesi-juk has been reimbursed by the United States Navy for his expenses so incurred, he owes no debt and has suffered no' loss, and consequently incurred no expenses. We do not agree. The fact that the insured has other arrangements for the reimbursement of his expenses does not operate to relieve appellant of its obligation as expressed in its contract in plain, certain and unambiguous language. See, Batchelor v. American Health Insurance Co., 234 S.C. 103, 107 S.E.2d 36. If appellant desired to limit its liability to actual loss or damage ultimately suffered by the insured, it could have and should have done so in its policy. As said by the Supreme Court in Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379: “We will certainly not write a limitation * * * into a policy where none exists.”

Appellant, with permission of the Court, has belatedly filed a supplemental brief in which it cites the case of Gordon v. Fidelity & Casualty Company of New York, 238 S.C. 438, 120 S.E.2d 509. This is simply another case in which a career soldier was treated in an Army hospital where the service was free, and consequently no liability was created against the insured. The case is not in point.

The trial court correctly disposed of the case in rendering judgment against appellant. The judgment is affirmed.

      . This insurance policy contained the following material language:
      “Part II — Expenses for Medical Services
      “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;
      “Division 2. To or for any other person who sustains bodily injury, caused by accident, while occupying (a) the owned automobile, while being used by the named insured, by any resident of the same household or by any other person with the permission of the named insured; or (b) a non-owned autmobile, if the bodily injury results from (1) its operation or occupancy by the named insured or its operation on his behalf by his private chauffeur or domestic servant or (2) its operation or occupancy by a relative, provided it is a private passenger automobile or trailer.”