author: WILLSON, C. J.

text:
    ATLANTA MUT. INS. ASS’N v. HEARD.
    No. 4015.
    Court of Civil Appeals of Texas. Texarkana.
    May 21, 1931.

      O^Neal & Harper, of Atlanta, for appellant.
    Bartlett, Harvey & Bartlett, of Linden, for appellee. ■
   WILLSON, C. J.

(after stating tbe case as above).

In ber written acceptance of the policy issued to ber, Mrs. Heard agreed, if sbe bad made any misstatement as to ber bealtb or physical condition in ber application tberefor, that tbe policy should “become null and void.” In tbe application referred to, Mrs. Heard stated that sbe was then in good bealtb. Tbe jury having found on uncontradicted testimony that sbe was, instead, in bad bealtb, and knew sbe was at tbe time she made the statement, appellant insists tbe judgment should have been in its favor, and that tbe trial court, therefore, erred when be overruled its motion that be render such a judgment.

Tbe contention should ¡be sustained, unless it ought to be held that tbe finding that the false representation as to ber bealtb was not made by Mrs. Heard “wilfully and with intent to deceive,” or tbe finding that appellant in issuing tbe policy did not rely upon the statement as true, warranted tbe judgment in appellee’s favor.

As to tbe first one of tbe two findings just specified, appellant insists it did not warrant tbe judgment rendered, because, it says,. tbe representation in its legal effect was a warranty tbe breach of'which worked a forfeiture of tbe contract evidenced by tbe policy, without reference to whether tbe false statement in question was made “wilfully and with intent to deceive” or not. We think tbe contention should be sustained. Judd v. Aid Ass’n (Tex. Civ. App.) 269 S. W. 284; Ins. Co. v. Pinson, 94 Tex. 553, 63 S. W. 531; Ins. Co. v. Harris, 26 Tex. Civ. App. 537, 64 S. W. 867; Ins. Co. v. Owens, 60 Tex. Civ. App. 398, 130 S. W. 858; Modern Order of Praetorians v. Davidson (Tex. Civ. App.) 203 S. W. 379; Woodmen v. Atcheson (Tex. Civ. App.) 219 S. W. 537; Ins. Co. v. Richbourg (Tex. Com. App.) 257 S. W. 1089; Hemphill County Home Protective Ass’n v. Richardson (Tex. Civ. App.) 264 S. W. 294, 297. Tbe provision in subdivision 4 of art. 4732, R. S. 1925, that statements made by tbe insured shall “be deemed representations and not warranties,” is not in conflict with tbe conclusion reached, because by its terms it applies only in tbe absence of fraud. Certainly tbe statement that tbe insured was in good bealtb when sbe was in bad bealtb, and knew sbe was, was fraud within tbe meaning of tbe statute, as to appellant, if it did not know tbe statement was false, and was induced to issue tbe policy by its reliance on tbe truth of tbe statement.

As to tbe other one of said two findings, appellant insists it was without evidence to support it, and that for that reason the finding could not be treated as a sufficient basis for tbe judgment rendered. Tbe theory of appellee was that in issuing tbe policy appellant did not rely upon tbe statement of Mrs. Heard in tbe application that sbe was in good bealtb but, instead, relied upon information as to the condition of ber health it obtained by an investigation it made for that purpose. It may be conceded it appeared appellant started an inquiry to ascertain tbe state of Mrs. Heard’s bealtb, but ■ it must be said there was an absence of any evidence showing it succeeded in obtaining any information by such inquiry. It conclusively appeared that all tbe information appellant had as to the matter was tbe statement of Mrs. Heard in ber application that sbe was in good bealtb. In that state of tbe record, we do not think it should be held that the judgment was sustainable on tbe theory advanced by appellee.

' As we view it, tbe judgment is wrong. It should have denied appellee a recovery of anything, and have been in appellant’s favor for costs. Therefore, it will be reversed, and judgment will be here rendered in appellant’s favor.


source: Caselaw Access Project

author: WILLSON, O. J.

license: Public Domain

text:
    WILLIAMS v. PERRY.
    No. 4045.
    Court of Civil Appeals of Texas. Texarkana.
    June 27, 1931.
    Rehearing Denied July 2, 1931.

      Crumpton & Crumpton, of Texarkana, for appellant.
    L. C. Boswell and N. L. Dalby, both of Texarkana, for appellee.
   WILLSON, O. J.

(after stating the case as above).

Appellant insists, in effect, that his right to the custody of the children was absolute, and that it was error to deny him such custody in the absence of pleading and proof showing that he had voluntarily parted with such right. The contention is on the theory advanced by the petitioner in Ex parte Sams (Tex. Civ. App.) 161 S. W. 388, 389, that “the district court [quoting] in a habeas corpus proceeding has. no right to inquire into the matter of the fitness of a parent to care for his minor child, unless it is first shown that said parent has voluntarily surrendered his custody of the child to some other person.” It seems the appellant here, as did the appellant in Long v. Smith, 162 S. W. 25, 27, decided by the same court that decided Ex parte Sams, misconstrued the effect of the holding in the latter case, for the court in the former case, referring to the Sams Case, said: “We did not concede the legal proposition announced by appellant in that cause. ⅜ * * Our courts have held the proposition that presumptively the best interests of the child is with the parent; but where conditions overcome this presumption, the infant’s interest being the real issue, blended with the interests of society, this presumptive right of the parent is negatived and destroyed, and society and the government, as well as that of the child’s interests, arise requiring a different custody.”

That the interests of the child, and not the right of its parents, is of controlling importance in determining a question as to the child’s custody arising in this kind of a proceeding, we think is well settled by decisions of the courts of this state. In Tunnell v. Reeves, 35 S.W.(2d) 707, 709, the Commission of Appeals said: “The writ of habeas corpus is used in this state as a form of procedure for the purpose of litigating questions as to the proper custody of children and ascertaining what would be to the best interest of the child, to society and to the state, and is addressed to the equity powers of the court, and the power is given to the courts to make the change as a remedial right. The trial judge sits as a court of chancery, exercising broad equitable power, and the rules regulating the exercise of that power are and should be liberally construed.” And in Davis v. Sears, 35 S.W.(2d) 99, 102, where a contention similar to the one urged here was made, the Commission of Appeals said: “The parents’ right to the custody of their child, however, is not absolute, hut is subject to judicial control, when the interest of the child demands it, and must yield, where the real and permanent interest of the child demands a different disposition.” And the Commission of Appeals said, further: “What is the best interest of the infant? is the question upon which all cases turn at last. * * * 'As to what was the child’s best interest, notwithstanding the qualification of the natural parents, was the vital ultimate issue before •the court for determination. It was the controlling issue of fact. * * * The authorities of this state * * * are almost uniform in holding that, in a contest for the custody of a minor, that person is entitled to such custody in whose custody the interest and welfare of the child will be best promoted.” As we construe the rulings in the opinions from which we have quoted, supported as they are by the holdings in many other cases which could be cited, there is no merit in appellant’s contention in the respect specified, and it is overruled.

The facts of the case, as found by the trial court, are set out in the statement above. Except on the theory hereinabove referred to as advanced in the Sams Case, we do not understand appellant to be in the attitude of questioning the sufficiency of the findings made by the trial court, set out above to support the judgment. His contention with reference to that phase of the ease seems to be that the finding numbered 4, so far as -it was that he neglected his children and failed to support them, the finding numbered 7, so far as it was that the “surroundings” of the children would not be as good with him as they would be with appellee, the finding numbered 10, so far as it was that the children wished to remain with appellee and would be happiest with her, and the finding numbered 11, were without evidence to support them. We have read and considered the testimony in the statement of facts, and do not agree with appellant that it did not warrant the finding and parts of findings specified. And if we did agree with appellant as to those matters, we probably would not reverse the judgment, for we are inclined to think it would have sufficient support in the findings of the court not attacked as lacking in evidence to support them. In passing upon the case, the trial court exercised an “equitable discretion” (Davis v. Sears, supra) in determining what was best for the children, and in determining the, question “had the, opportunity [this court is without] to observe the parties and weigh their respective qualifications.” “The right of custody,” said the court in Stout v. Myers (Tex. Civ. App.) 242 S. W. 1109, 1111, “is largely a question to be decided by the trial court in the exercise of his judicial discretion.” And see Duckworth v. Thompson (Tex. Civ. App.) 22 S.W.(2d) 528, where it was said that even the verdict of a 'jury on ¿n issue as to the proper custody of a minor child, was “merely advisory,” which the trial court might adopt or not, as it saw proper in awarding custody of the child; and Cecacci v. Martelli (Tex. Civ. App.) 235 S. W. 951, 953, where the court said a question as to the custody of a child is one of fact “which must be determined by the trial court, and unless the finding of that court is so against the preponderance of the evidence as to be clearly wrong it will not be disturbed by an appellate court.”

The judgment is affirmed.


text:
    DALLAS JOINT-STOCK LAND BANK OF DALLAS v. WISE et al.
    No. 4048.
    Court of Civil Appeals of Texas. Texarkana.
    June 25, 1931.
    Rehearing Denied July 2, 1931.

      Renfro, Ledbetter & McCombs, of Dallas, for appellant.
    Cunningham & Lipscomb and C..A. Wheeler, all of Bonham, for appellees.
   WILLSON, O. J.

(after ■ stating the case as aboye).

Appellant insists it appeared it was lawfully in possession of the 430 acres of land, holding same as mortgagee to secure indebtedness of L. C. Penwell to it, and therefore was within a rule stated as follows in 19 R. C. L. 330: “A mortgagee in possession, in the sense of that term as technically used, cannot be ousted by the mortgagor, or one claiming under him, by action or otherwise prior to the satisfaction of the mortgage, this being true even in jurisdictions wherein the mortgagee could not maintain a possessory action for property.” And see Pomeroy Eq. Jur., § 1189, p. 2817, 4th Ed.; note to Kaylor v. Kelsey, 40 L. R. A. (N. S.) 842, note; Majors v. Strickland (Tex. Civ. App.) 6 S.W.(2d) 133; Hill v. Preston (Tex. Sup.) 34 S.W.(2d) 780; Calhoun v. Lumpkin, 60 Tex. 185.

Appellees, on the other hand, insist that, if appellant was in possession of the land before and at the time Penwell died, its possession was not lawful, because of the statute of frauds; and, further, that, if appellant was in possession of the land and its possession was lawful, its right to continue in possession thereof ceased when Penwell died, or, if such right did not then cease, .same was inferior to their right to’ subject the land to the statutory lien which they claimed existed to secure the payment of the indebtedness of Penwell’s estate to them.

We agree it appeared from the evidence heard at the trial 'that possession of the land was turned over to appellant by Penwell during his lifetime, and that appellant was in possession thereof at the time Penwell died. We do not understand appellees to be in the attitude of contending to the contrary. Their contention as to this phase of the case, as we understand it, is that it appeared that appellant’s right to possession was not evidenced by writing, but was based exclusively on an oral agreement it had with Penwell. The view entertained by appellees seems to be that a claimed right to possession of land is within the statute of frauds. Article 3995, R. S. 1925. The evidence was that Penwell, being indebted to appellant in a sum in excess of $20,000, which he was unable to pay, but payment of which was secured by a trust deed on the 430 acres of land, in September, 1927, turned the land over to appellants with authority to rent it, collect the rents, and apply same on the indebtedness and to sell the land if a purchaser could be found.

In their brief appellees do not specify the particular part of the statute of frauds they regard as applicable in the case. We assume it was the subdivision numbered 4 of said ar* tide 3995, denying a right to maintain an .action “upon any contract for the sale of real estate or the lease thereof for a longer term than one year.” It is held that said provision in the statute does not apply “when the lease may be for a longer or shorter term than one year, according to whether a contingency which is to end it happens within the year or not.” Betts v. Betts (Tex. Civ. App.) 220 S. W. 575; Hintze v. Krabbenschmidt (Tex. Civ. App.) 44 S. W. 38. We think it cannot be Said that the contingency which would have deprived appellant of a right to possession of the land, to wit, a sale thereof, could not have happened within a year from the time possession was turned over to it. And we doubt if the lawfulness of appellant’s possession in any event was dependent upon compliance with the statute. 3 Pomeroy Eq. Jur. § 1189; and notes; Barson v. Mulligan, 191 N. Y. 306, 84 N. E. 75, 81, 16 L. R. A. (N. S.) 151. In the case just cited the New York Court 'of Appeals, in concluding a rather full discus-; sion of the matter, said: “Whenever it appears that the mortgagor has consented, either expressly or impliedly, by contract or conduct, to the entry of the mortgagee, for purpo'ses, or under circumstances, not inconsistent' with their relative legal rights under the mortgage, the possession of the mortgagee may properly be regarded as lawful.”

If, as we think is true, it appeared that appellant as a mortgagee was lawfully in possession of the 430 acres of land, the judgment in favor of appellees was wrong, unless it ought to be said that appellant’s right as such a mortgagee was inferior to -the right of ap-pellees, based as it was on the fact that the indebtedness on account of which they respectfully sought a recovery was for Penwell’s funeral expenses and expenses of his last sickness. By force of the statute (articles 3531 and 3533, R. S. 1925) -the executrix of Pen-well’s will was required to pay such expenses before paying any other claims against Pen-well’s estate. But she could pay only with property she had acquired a right as executrix to possess and control. By the terms of the statute (article 3314) her right as such executrix was “to the possession of the estate as it existed at the death of the testator” (Pen-well). As we have seen at the time he died, Penwell (the testator) was not entitled to the possession of the 430 acres of land. Appellant was then lawfully in possession of same, and, we think, entitled to retain possession thereof so long as the indebtedness of Pen-well’s estate to it was unpaid.

We -think the judgment should be so reformed as to deny appellees Phillip Wise, J. W. Peeler, H. L. Rogers Company, and Allen Memorial Hospital a foreclosure of the lien they claimed on the 430 acres of land,to secure the payment of the sums adjudged in their favor, respectively, "and that, as so reformed, the judgment should be affirmed. It will be ordered accordingly.


author: FLY, C. J.

text:
    ROBINSON et al. v. EL SAUZ INDEPENDENT SCHOOL DIST. et al.
    No. 8679.
    Court of Civil Appeals of Texas. San Antonio.
    June 3, 1931.
    Rehearing Denied July 15, 1931.
    Jesse 6. Foster, of Raymondville, for appellants.
    S. L. Gill, of Raymondville, for appellees.
   FLY, C. J.

This is an appeal from a judgment granting a writ of mandamus compelling the appellants, respectively, county and district attorneys, to join with appellees in a suit to determine the validity of the establishment and formation of a certain school district known as the Santa Margarita School District.

We are of the opinion that district and county attorneys are clothed with discretion in the prosecution of suits of quo warranto. Article 6253, Rev. St. It is apparent that if such officers have no such discretion, the state could be dragged into any-cases prosecuted by irresponsible persons, and the officers be made puppets in the prosecution of suits involving no merit whatever. No one can protect the state against frivolous and ridiculous suits, 'if the officers necessary to be joined in such suits can be forced to institute or join in’them in the name of the state. Such a rule would lead to absurd results, and tend to seriously embarrass and discredit the state. It is true that in such suits .the state is only a nominal party, and still it is an essential and necessary party, and the question of whether the state should lend its dignity and power to the prosecution of causes should not be left to the whims or caprices of individuals, but should be confided to some officer to whom such powers are entrusted.

Even if the appellants, or either of them, had joined in the suit to destroy the district, it could not be maintained because the Legislature in 1930, and also in 1931, validated the district and gave the sanction of law; to its existence. Acts of 41st Legislature, Fourth Galled Session, c. 40, p. 79 (Vernon’s Ann. Civ. St. art. 2742i). Again, the 42d Legislature, e. 257 (Vernon’s Ann. Civ. St. art. 2742k) passed a validation act which fully covers any and all supposed defects in the organization of the district.

We think it clear that the Legislature had the power and authority to validate the formation and establishment of the Santa Margarita School District, and no county or district attorney could be compelled by mandamus to assail the legislative act or seek to evade its provisions.

The judgment is reversed, and the cause dismissed.


author: FLY, O. J.

text:
    QUIG et al. v. MUTUAL INV. CORPORATION.
    No. 8638.
    Court of Civil Appeals of Texas. San Antonio.
    June 17, 1931.
    Rehearing Denied July 15, 1931.

      Hertzberg & Kercheville, of San Antonio, for appellants.
    Saunders, Saunders & Whipple and A. H. Lumpkin, all of San Antonio, for appellee.
   FLY, O. J.

This is a suit on a promissory note for $1,578.16, secured by a lien on a certain automobile.’ The cause was tried by the court without a'jury, and judgment was rendered against Quig and bis sureties on a certain replevy bond for $1,420.78, and tbe lien was foreclosed on the automobile.

There is no statement of facts, and the sole complaint is against the judgment rendered against E. M. Hays and Stephen Bet-tley, as sureties, on the ground that a judgment cannot be legally rendered against sureties on a replevin bond when a lien is foreclosed on the replevied property. This is contended to be based on article 6852, Revised Statutes.

The judgment rendered by the trial judge as to the sureties is as follows:

“It further appearing to. the court that on or about the 80th day of April, 1930, plaintiff filed this suit and sequestrated said automobile, and that the defendant replevied same within the time and in the manner required by law, furnishing a replevy bond in the sum of Two Thousand Dollars ($2,000.00), executed by the defendant, as principal, and E. M. Hays and Stephen Bettley, as sureties, and it further appearing to the court that at the time of said replevy said automobile was of the reasonable market value of Fifteen Hundred Dollars, and that Six Hundred Fifty Dollars is its reasonable market value at the present time.
“It is therefore considered, ordered, adjudged and decreed by the court that the plaintiff, Mutual Investment Corporation, do have and recover of and from the defendant, O. L. Quig, and his said sureties, E. M. Hays and Stephen Bettley, the sum of Fourteen Hundred Twenty and 78/100 Dollars, with interest thereon at the rate of six per cent, per annum, and in event said property heretofore described is surrendered and delivered into the hands of the Sheriff of Bexar County, Texas, within ten days from the date hereof in the condition same was in at the time of the trial, then the judgment here in rendered against said sureties shall be reduced in the sum of Six Hundred Fifty Dollars, herein found to be the present value of said mortgaged property, and the balance, viz., Seven Hundred Seventy and 78/100 Dollars ($770.-78) shall be collected as against said sureties, as in ordinary cases under execution.”

The replevy bond, as required by article 6850, was conditioned as follows: “The condition of the bond shall be that the. defendant will not remove the same out of the county, or that he will not .waste, illtreat, injure, destroy or sell or dispose of the same, according to the plaintiff’s affidavit,' and that he will have such property, with the value of the fruits, hire or revenue thereof, forthcoming to abide the decision of the court, or that he will pay the value’.thereof and of the fruits, hire or revenue’ of the same in case he shall be condemned so to do.”

It would be manifestly unjust to render judgment against the sureties for the balance of the debt when the property has been foreclosed upon and taken possession of by the plaintiff. The property in the present case had been returned by the sureties, at least it was in the possession of appellee, and the sureties had fully complied with all conditions of their bond. We conclude that no judgment under the circumstances should have been rendered against the sureties on the replevy bond. This view is fully sustained by Riggle v. Automobile Finance Co. (Tex. Civ. App.) 276 S. W. 439.

The judgment will be affirmed as against Quig and as to the foreclosure of the mortgage lien, but will be reversed as to the sureties, and judgment is here rendered that ap-pellee take nothing as to the sureties and that they recover all costs by them incurred from appellee.

Affirmed in part; reversed and rendered in part.


author: SELLERS, J.

text:
    BANKERS’ MUT. FIRE INS. CO. OF TEXAS v. BETTS.
    No. 4033.
    Court of Civil Appeals of Texas. Texarkana.
    July 2, 1931.
    Rehearing Denied July 4, 1931.

      Cecil A. Morgan and A. W. Bounds, both of Port Worth, for appellant.
    ,⅜ I, Cornett, of Daingerfield, and Bartlett Harvey, of Linden, for appellee.
   SELLERS, J.

This suit was filed by J. O. Betts' as plaintiff in the district court of Cass county, Tex., Juiy 8,1930, against the Bankers’ Mutual Fire Insurance Company as defendant, for the sum of $1,175.

The plaintiff alleged that on the 1st day of July, 1929, the Bankers’ Mutual Pire Insurance Company issued to A. P. Gibson its policy of insurance upon a certain dwelling house and certain furniture contained therein; that on the 24th day of August, 1929, the property insured was destroyed by fire; that on the 14th day of January, 1930, A. P. Gibson, the insured, for a valuable consideration transferred and assigned to the said J. O. Betts, plaintiff, all the rights in and to said policy of’insurance; and that said J. O. Betts by reason of said assignment was the sole owner of said policy- and had exclusive right to receive payment. Plaintiff further alleged that the said A. P. Gibson on the 18th day of September, and after the loss, entered into an agreement of settlement with the Bankers’ Mutual Pire Insurance Company, defendant, through its agent, G. A. King, whereby the said agent agreed that the company would pay the' sum of $1,175 in settlement of all rights under the policy.

The Bankers’ Mutual Pire Insurance Company, defendant, answered by general demurrer and certain special exceptions, also general deniai, and pleaded specially several grounds of defense, but the following allegations are deemed sufficient to make clear the qu.estion -here for disposition:- “Defendant further says that in his written application to this defendant the said insured represented to this defendant that he was the sole and only owner of this property and no other person or persons owned or claimed any interest therein; that said representation was false and untrue in this, to-wit: that at the -time said policy was issued there was outstanding against said reál property a valid subsisting vendor’s lien in the sum of $500, payable to S. O. Gibson; and the defendant says that acting upon the said representation that said property was clear of all liens and encumbrances, it issued to said A. P. Gibson its policy as aforesaid; that had it known that said representation was false it would not have issued its said policy; that said policy provides that in the event it appears that the insured is not the sole and only owner of said property said policy shall be rendered null and void; that by reason of the breach of said promissory warrant said policy of insurance was rendered null and void and of no force and effect; that all rights of the insured thereunder terminated and that by reason • thereof the plaintiff, the assignee of said insured, had no right under and by virtue of his alleged assignment of the policy.”

By supplemental petition, the plaintiff further alleged as follows: “Further replying, plaintiff says that the defendant knew of the outstanding lien on said property and that if the application states that there was no lien on same, it was placed on the application by the agent of the defendant, G. A. King; that all questions asked said A. P. Gibson by defendant’s agent were truthfully answered.”

The case was tried by the court without a jury on September 16, 1930, and after hearing the pleadings and evidence, the court rendered judgment for the plaintiff for the sum of $1,175 with interest from September 18, 1929, at the rate of 10 per cent, per ánnum and at the rate of 6 per cent, per annum from the date of judgment together with all costs of suit.

In due time the Bankers’ Mutual Fire Insurance Company perfected its appeal by writ of error to this court for review.

The trial court filed findings of fact and conclusions of law as follows:

“I find J. O. Betts, plaintiff herein, is the assignee, for a valuable consideration, of a policy of fire insurance on a certain house, dwelling, and household furniture belonging to one A. P. Gibson, situated at Cornett, Cass County,-Texas, on.which said property Bankers Mutual Fire Insurance Company of Texas, defendant herein, had issued a policy of insurance covering, any loss by fire of said building and household furniture in the aggregate sum -of One Thousand Four Hundred and No/ 100 Dollars; that said policy was issued on the 1st day of July A. D. 1929, for a period of one year from said date in consideration of the payment by the said A. P. Gibson of the premium charged thereon and that said premium had been paid by the said A. P. Gibson; that on or about the 24th day of August. A. D, 1929, and while said policy was in full force and effect there was a total destruction of said house by fire together with most of household furniture; that G. A. King, of Hughes Springs, Texas, at that time was the agent of defendant Company and through him said policy was delivered to the said A. P. Gibson; that after said loss so had on or about the 18th day of September A. D. 1929, the said G. A. King acting under authority of the defendant Company, and as Notary Public in and for Cass County, Texas, called upon the said' A. P. Gibson, and through him due proof of loss of said premises was made and that the said G. A. King, as agent of said Company, and with authority of the president of defendant Company on or about the 18th day of September, A. D. 1929, adjusted the loss between the said A. P. Gibson and defendant Company at the sum of One Thousand One Hundred and. Seventy-Five and No/100 Dollars.
“Conclusions of Law.
“The assignment of said policy by the said A. F. Gibson to J. O. Betts, for a valuable consideration was valid and enforceable and the proof of loss by the said A. F. Gibson, of said premises and household furniture was valid and enforceable as well as the adjustment made by G. A. King, as agent of said Company by authority of the president of said Company, with the said A. F.. Gibson.”

Appellant complains of the trial court’s judgment in allowing interest at 10 per cent, per annum from September 18, 1920, until date of judgment, on the ground that the court’s judgment was upon an oral agreed settlement of the parties which could not under the law draw interest in excess of 6 per cent, per annum. The appellee concedes this contention and has filed in this court a remittitur for the excess of 4 per cent., and the judgment will be here reformed so as to allow 6 per cent, interest from September 18, 1929, to date óf judgment.

Appellant insists that the appellee is not entitled to recover any amount upon the policy issued A. F. Gibson for the reason that the said A. F. Gibson made false answers to the questions propounded in the application for the insurance. One of the questions in the application which appellant alleges was answered falsely is as follows: “How much do you owe on this land?” Answer: “None.” There is no dispute in the record that the answer to this question as contained in the application is false, it appearing conclusively that there was at the time the application was taken a vendor’s lien note of $550 against the premises. A. F. Gibson testified that he made correct answers to all the questions asked him by the agent of the company who wrote the answers in the application, and that it was the agent’s fault that the correct answer was not placed in the application. The appellant in answer to this says that A. F. Gibson is bound by the answer written by the agent, since he signed it or caused it to be signed without having read the same. We will not undertake to decide this question, since the case turns upon an entirely different point.

The policy of insurance provides as follows: “The application made for the issuance of this policy is hereby made a part hereof, and in consideration of the statements contained in said application which are hereby warranted to be true and correct, this policy is issued and would not have been issued or delivered except for the statements and representations contained in said application, and if same are not wholly true, and correct, then this policy will not become'operative and the Company will only become liable for the loss or damage to the property covered by this policy to the amount of the premium paid thereon with 6% interest from date received by the said Company.” . The policy was introduced in evidence, but it did not contain a written, photographic, or printed copy of the application for such insurance, nor did it contain a' copy of all questions and answers given thereto in the application as required by article 5049, of R. C. S. 1925.

It is well settled in this state that if the application is not indorsed or attached to the policy as provided for by article 5049, then such application is no part of the contract between the parties notwithstanding it may be referred to in the policy as a part thereof. National Live Stock Ins. Co. v. Gomillion (Tex. Civ. App.) 178 S. W. 1050; Southern Ins. Co. v. Nicholson (Tex. Civ. App.) 292 S. W. 569. If, then, the application is no part of the contract here sued upon, it follows that all appellant’s assignments of fer-ror based upon the application’s being a part of the policy will be overruled.

Appellant insists that the evidence is not sufficient to authorize the finding by the court that the agent, King, had authority to bind the company with any adjustment of the loss madé between the agent, King; and the insured, A. F. Gibson.

King was the local agent of the company who took the application of A. F. Gibson for the insurance. After the fire he made out the proof of loss for A. F. Gibson and represented to Gibson that he had authority to* adjust the loss and agreed with Gibson to pay him the sum of $1,175 in full settlement of all claims under the policy. The policy provided: “No soliciting agent, other than the President, Vice-President, Secretary, or Treasurer, has any authority in the case of any loss under this policy to negotiate with the insured for the settlement or adjustment of said loss without written consent of the above named officers, and any statement, representations or undertaking, by any agent of this Company, other than the President, Vice-President, Secretary or Treasurer, with reference to or concerning any loss claimed under this policy shall not be binding or obligatory on the Company.” This provision of the policy would, of course, make any adjustment of the loss by the agent, King, void as to the company but for the undisputed evidence of A. F. Gibson which is as follows: “I saw Mr. King after I turned over to him the proof of loss. I saw him just a few weeks ago. I-Ie was at'iny house then; yes, it was after the fire. When he came to my house I asked him if he could adjust the house. I asked him if he had the right to adjust it and he said yes. *■ You ask me if he showed me any instrüni'ent in writing giving him authority froin' the Vice-President of the Company to make adjustment with me, the Vice-President told him he had the right to do it, I mean the Vice-President of the Mutual Fire Insurance Company. You ask me which' one — that one. Yes, that gentleman there (indicating). He told me that since I have been in the court room this morning. '* $ ⅜ I have had a conversation today with Mr. Barnes, the Vice-President oí this Company. I was out there in the court house when I had the conversation with him. There was something said about Mr. King’s employment with the Company. Mr. Barnes told me, — well, I asked him whether.or not Mr. King had the right to adjust this business and he said yes, he had the right.”

It appears that Mr. Barnes, the vice president, had the power under the policy to grant the authority to King to make the settlement when such authority was in writing, and since the undisputed evidence is that he gave King the authority to make the settlement, it will be presumed that he gave him proper authority to adjust the loss, which was, in thtó instance, authority in writing.

We have not undertaken to discuss all of appellant’s assignments in their order, but deem what has been said here as sufficient to dispose of this appeal, and all assignments not discussed are overruled.

The judgment of the trial court will be reformed so as to allow interest from the 18th day of September, 1929, to the date of judgment at 6 per cent, per annum instead of 10 per cent., and in all other respects the Judgment will be affirmed, the costs of this appeal'to be taxed against the appellee.


author: LEVY, J.

text:
    GULF PIPE LINE CO. v. BAILEY.
    No. 3974.
    Court of Civil Appeals of Texas. Texarkana.
    June 18, 1931.
    Rehearing Denied July 4, 1931.

      .“.Joe S. Brown, of Houston, McKinney & Berry, of Cooper, and Emmet Thornton, of Sulphur Springs, for appellant.
    J. K. Brim and Ramey & Davidson, all of Sulphur Springs, for appellee.
   LEVY, J.

(after stating the cáse as above).

The appellant presents the points in view, in effect, that there is no evidence going to show negligence in the manner and way (1) in which the excavation was made for the pipe line, or (2) in refilling or closing the excavation after the pipe was laid. In December, 1928, floodwaters, such as were usual, broke through a portion of the levee and flooded the adjoining pasture, inflicting loss and injury to the cattle of appellee. The break in the levee embankment was, as proven, about “SO or 40 feet” wide, and the base or earth underneath the levee was undermined, “about 12 feet below the surface.” No other portion of the levee broke, and no other portion of the earth underneath was undermined, except this particular part where the pipe line was run. And it was affirmatively shown that a break in this particular section of the levee had not previously occurred during the seven years from the time of the construction of the levee in 1921, until the present time of December, 1928. The levee embankment and the base, or earth underneath it, were previous to that time in a reasonably safe and perfect condition, and held the flood-waters and prevented any overflowing of the adjacent land. As going to show that the hole in the levee causing the injury was through the fault alone of the appellant, there was offered the circumstances that in July, previous, the appellant made excavations in the earth under the levee embankment to lay an additional pipe line. An excavation was made to the depth of about six feet and the pipe laid therein. Although not shown by affirmative evidence, yet it would be presumed that after laying the pipe the excavations were refilled with dirt and the dirt tamped. No other probable cause for the break in the levee embankment and the earth underneath the embankment was made to appear, except the running of the pipe line in the earth. As is apparent, there was caused a weakening of the embankment of the levee and the earth underneath by the excavation for the laying of the additional pipe line. It is inferable that the weakening of the embankment. and earth underneath was in consequence of the manner and way in which the excavation was made, or in refilling the excavation,, for the physical circumstances relating to the break point forceably to that inference. Quoting from the witness who described the break: “The hole in the ground was 10 or 12 feet deep, I take it. The break in the levee was right over all three of the pipe lines. The whole works had been washed out from the lines. The hole that washed out, where the pipe line crossed, and where the break happened, in the levee showed to be about 12 feet below tbe natural surface', and tbe pipes of tbe pipe line were just banging.”

Tbe break in tbe embankment may not be regarded as merely a breaking away of tbe embankment and eartb, without any evidence pointing to any efficient cause for tbe break. It is believed tbe jury in all tbe circumstances were warranted in concluding, in point of fact, that tbe bole in tbe embankment would not have happened in tbe usual and ordinary course if tbe work of excavation and refilling bad been done with reasonable care and in a protective manner. Circumstances attending the injury may, as a general rule, afford proof of negligence. 6 Thompson on Neg. (1905) § 7863; 20 R. C. L. § 163, p. 197; 45 C. J. p. 1267. In' tbe facts, it was tbe duty of tbe appellant in running tbe pipe line to have taken precaution to avoid any weakening in tbe levee, being charged with notice, as it was, that at this section of tbe levee great volumes of water were thrown against tbe embankment in tbe usual freshet and flood times in tbe winter months because of tbe necessary levying of tbe river in an “elbow shape.” As shown by tbe proof, there was a choice of modes of running the pipe line that would have avoided a break in tbe levee in flood times.

The appellant excepted to tbe court’s definition of proximate cause and requested, and tbe court refused to give, a special instruction covering tbe correction pointed out and claimed to be error. The point made is that tbe definition in tbe court’s charge omitted the element that tbe result must have been one which might reasonably have been foreseen. As defined in the part of tbe court’s instruction complained of, “proximate cause is that cause, which in a natural and continuous sequence, unbroken by any new independent cause, produces an event, and but for which tbe same would not have happened.” Tbe definition given by tbe court was not an incorrect one, and neither was it inapplicable to tbe case. The instruction means, as tbe jury could have readily understood, that tbe act or omission which immediately causes tbe harmful result and without which such harmful result would not have happened, shall be deemed tbe proximate cause of an injury. There is no pretense in .the evidence of any other cause for injury except tbe flood. Tbe break in tbe levee let tbe floodwaters over and upon the adjoining pasture land. Impounded waters, as the appellant must be held to have known would come within tbe levee, embody perils when tbe embankment is weakened by excavation. Appellant could, as conclusively appears, have reasonably foreseen the harmful results in evidence.

Tbe appellant excepted to tbe refusal of tbe court to give tbe requested issue, “Could the plaintiff, bis agents or employees, have lessened tbe damages, if any, by the use of ordinary care and tbe expenditure of a reasonable amount of labor and time, or both?” Tbe appellant points out that there was evidence going to show after tbe land became overflowed tbe appellee could have gone in tbe pasture and have driven a part of tbe cattle to high ground nearby, saving a portion of tbe cattle from being damaged. Tbe evidence of appellee goes to show that tbe pasture was a large one of several miles length, and that when the break occurred tbe high water and the muddy condition of tbe ground prevented getting to the cattle, and made it difficult to drive them out or to the foothills. The court submitted to tbe jury tbe following issue: “Do you find from tbe evidence that the plaintiff was guilty of contributory negligence in failing to remove tbe cattle from the overflow area?”

This latter issue, as submitted by tbe court, did not limit or undertake to limit tbe finding of contributory negligence to doing- something before the break and overflow, or after it bad been seen that there was a probability of tbe levee breaking. It is an elementary principle that a party claiming damages must not be in fault in contributing to them by his own want of proper care. Such care must extend to tbe protection from further loss after tbe act complained of occurs. If such party fails to use such diligence, bis negligence is regarded as contributing to bis injury. Had tbe jury answered tbe issue “Yes,” then, as the legal effect, the appellee would have been denied a recovery. It would seem, therefore, that tbe issue as submitted to tbe jury, sufficiently covered tbe facts of the case, and that reversible error may not be predicated upon tbe refusal to give tbe requested charge.

Tbe appellant points out under proper assignments of error that tbe appellee was erroneously permitted to offer evidence showing that appellant repaired and paid for the break in tbe levee. It is claimed that tbe evidence was intended to be considered as showing prior negligence. It is well settled that subsequent repairs cannot be shown for tbe purpose of proving prior negligence. But tbe appellee claims, and in that view there was no error, that tbe evidence was merely to show control by appellant over the excavation made under the levee at tbe time it was made.' 45 O. J. p. 1235.

We have examined all the other assignments of error and conclude that reversible error may not be predicated thereon.

The judgment is affirmed.


text:
    BYRD v. TAYLOR et al.
    No. 4036.
    Court of Civil Appeals of Texas. Texarkana.
    June 30, 1931.
    Rehearing Denied July 4, 1931.

      Neyland & Neyland and B. F. Crosby, all of Greenville, and Wm. Hodges, of Texarkana, for appellant.
    B. M. McMahan, Clark, Harrell & Clark, and L. L. Bowman, Jr., all of Greenville, for appellees'.
   WILLSON, C. J.

(after stating the case as above).

Of the twenty-five propositions in.appellant’s brief, the first nine relate to the land constituting what is referred to in the record as the “Community Center Property.” As appears in the statement above, that land was conveyed to L. N. Byrd after he and appellant were married in 1891, to wit, in 1896 and 1900. Presumptively, therefore, when the land was so conveyed, it became a part of the community estate between said L. N. Byrd and appellant. Wideman v. Coleman (Tex. Com. App.) 17 S.W.(2d) 786. To the contrary of that presumption, appellant insisted in the court below, and insists here, that the conveyances to L. N. Byrd were in trust for her, and therefore that the land never became a part of said community estate, but, instead, became a part of her separate estate.

In support of her contention appellant adduced evidence showing or tending to show (1) that her father gave her money which she gave to L. N. Byrd to use in buying the property for her; (2) that afterward said L. N. Byrd repeatedly declared he bought the land with such money, and that it belonged to appellant; and (3) that appellant, claiming to own the property, expended money belonging to her separate estate in improving it. As controverting appellant’s contention, appellees relied (1) on the presumption that the property was community arising from the fact that it was conveyed to L. N. Byrd while he and appellant were married; and (2), on certain declarations as to the ownership of the property made by L. N. Byrd during his lifetime, admitted as evidence over objections thereto interposed by appellant.

As to one of the declarations it appears in a bill of exceptions that L. L. Bowman testified that after L. N. Byrd’s death he had a conversation with appellant with reference to the “Community Center Property,” in which she said something about the property being hers, when her daughter, Mrs. Starke, who was present, spoke up and said: “Papa always said that belonged to him.” The objection was to what Mrs. Starke said L. N. Byrd said. Tlie grounds thereof were that what L. N. Byrd said was “irrelevant, immaterial, prejudicial to the right of Mrs. Byrd, and hearsay.” Appellees’ view is that the declaration was admissible as evidence because it was, they assert, part of the conversation between the witness Bowman and appellant, and because it was, they assert, further, in rebuttal of testimony on appellant’s behalf. In support of that view, which is shared by a majority of the members of this court, ap-pellees cite many authorities, among same being the following: Sumner v. Murphy, 2 Hill (S. C.) 488, 27 Am. Dec. 397; Wingo v. Caldwell, 36 S. C. 598, 15 S. E. 382; Joyce v. Hamilton, 111 Ind. 163, 12 N. E. 294; 22 C. J. 290; 16 Cyc. 898; Hutcheson v. Massie (Tex. Civ. App.) 159 S. W. 315; Walker v. Pittman, 18 Tex. Civ. App. 519, 46 S. W. 117; Wells v. Burts, 3 Tex. Civ. App. 430, 22 S. W. 419; Smitheal v. Smith, 10 Tex. Civ. App. 446, 31 S. W. 422; Portis v. Hill, 14 Tex. 69, 65 Am. Dec. 99; Easley v. Ry. Co., 113 Mo. 236, 20 S. W. 1073. The writer thinks the testimony was subject to the objection urged to it, and that it was error to admit it as evidence. As he understands the rule, such declarations are admissible as explanatory of a declarant’s possession of land, but are regarded as self-serving and inadmissible as evidence of title in the declarant. Mooring v. McBride, 62 Tex. 309; Maffi v. Stephens (Tex. Civ. App.) 93 S. W. 158; Duren v. Bottoms, 60 Tex. Civ. App. 355, 129 S. W. 376; Cattle Co. v. Cooper, 39 Tex. Civ. App. 99, 87 S. W. 235; Gilbert v. Odum, 69 Tex. 670, 7 S. W. 510; Hays v. Hays, 66 Tex. 606, 1 S. W. 895; McDow v. Rabb, 56 Tex. 154; Warren v. Humphreys (Tex. Civ. App.) 274 S. W. 250; Snow v. Starr, 75 Tex. 411, 12 S. W. 673. The issue in the case was one as to title and not as to possession by L. N. Byrd of the land.

As to the other declaration (there were only two) it appears in a bill of exceptions that appellees offered as evidence a financial statement in writing, dated December 1,1927, made by L. N. Byrd, furnistíed to P. A. Norris, for use in negotiating a loan Byrd wished to secure. In the list of properties (aggregating $503,000 in value) was an item described as “Community Center, 4 bricks, 40,000.” Appellant objected to the admission of the statement as evidence that the “Community property” belonged to the community estate between her and B. N. Byrd, on the ground (1) that it (the statement) antedated the deed of January 10, 1928, from L. N. Byrd to appellant ; (2) that it did not appear that “any credit or extension of credit was made on account” thereof.;- (3) that it did not appear to have come from tlie proper custody; (4) it did not appear it was made in appellant’s presence, or that she knew anything about it; and (5) it was “irrelevant, immaterial and hearsay.” The court sustained the objection except so far as it ¿pplied to the item “Community property, 4 bricks, 40,000.” He overruled the objection so far as it was to that item, and admitted same as evidence. As we construe it, the declaration was not materially different from the one Bowman testified Mrs. Starke referred to, and what was said about it above applies as well to the declaration in the Norris statement. In conformity to the view of the majority, the assignments predicating error on the action of the court below in admitting the declarations as evidence are overruled.

It is insisted that the findings of the jury, in response to the first and second special issues submitted them, that neither the land described in the deed from Jane Wall to L. N. Byrd nor the land described in the deed from George Swinney and his wife to I* N. Byrd was paid for with money given to appellant by her father, were without support in the evidence. Contrary to appellant’s contention with reference to this phase of the case, the deeds to L. N. Byrd prima facie establishing that the land was community, we think the burden was on appellant to prove it was so paid for, and that the jury had a right to conclude that she had failed .to discharge the burden. And contrary to appellant’s further contention, we think the findings of the jury in response to said first and second special issues were in legal effect, in view of her pleadings, equivalent to a finding that the property belonged to the community, estate. According to the allegations in appellant’s answer the ground, and only ground upon which she predicated her claim, that the land was not community property, but belonged to her separate estate, was that it was paid for with money belonging to her said estate. Gates v. Pitts (Tex. Civ. App.) 2 S.W.(2d) 307; Askey v. Power (Tex. Com. App.) 36 S.W.(2d) 446; Brigman v. Holt (Tex. Civ. App.) 32 S.W.(2d) 220.

The remainder of the land in controversy was that described in the deed' from L. N. Byrd to appellant dated January 10, 1928, referred to in the statement above. It will be noted from recitals therein that that deed purported to have been made by L. N. Byrd to pay indebtedness he claimed he owed appellant in her separate right. The jury found on the special issues submitted to them that L. N. Byrd was insolvent at the time he made the deed, and that appellant was chargeable with knowledge thereof; that L. N. Byrd was not then indebted to appellant “for money from her separate estate theretofore used by him”; and that the deed “was not in payment of what he owed her on account of money used by him from her separate estate.” It appearing that appellees were creditors of L. N. Byrd at the time he made the deed in question, the findings of the jury, if warranted by the evidence, established the invalidity of the deed by force of article 3997, R. S. 1925, as follows: “Every gift, conveyance, assignment, transfer or charge made by a debtor, which is not upon consideration deemed valuable in law, shall be void ^s to prior creditors, unless it appears that such debtor was then possessed of property within this State subject to execution sufficient to pay his existing debts.”

Appellant’s contention is that the findings that L. N. Byrd was not indebted to appellant on account of money used by him from her separate estate, and that the conveyance was not to pay money he owed her, were without evidence to support them. We have read the evidence in the statement of facts sent to this court and think the jury had a right to draw inferences from it entitling them to make the findings in -question. We do not agree with appellant in her contention that the testimony of the witness Bush as to what the books of banks she and L. N. Byrd did business with showed as to their respective accounts with said banks was inadmissible. The testimony, it seems to us, was within an exception to rules of evidence invoked by appellant that, where books are voluminous and involve , intricate details so as to make it inconvenient for the court to make the necessary examination, “parol evidence of an expert accountant or other competent person is admissible to prove what said books show.” Indemnity Co. v. Shaw (Tex. Civ. App.) 8 S. W. (2d) 196, 197; Clopton v. Flowers (Tex. Civ. App.) 183 S. W. 68; American Surety Co. v. Bank (Tex. Civ. App.) 14 S.W.(2d) 88. We conclude that the judgment should not be disturbed so far as it determined that said deed of January 10, 1928, was without a consideration deemed valuable in law, and therefore was void as against appellees.

The conclusion stated is in the face of a contention by appellant that in any event the judgment was wrong so far as it required her to inventory lot 7 in block 9, mentioned in appellees’ petition, as a part of L. N. Byrd’s estate. The contention is on the theory it appeared tliat that lot was conveyed to her by L. N. Byrd, December 30, 1895, by a deed of that date subject to none of the objections urged to the deed of January 10, 1928, and therefore that the title to same was in her, even if said deed of January 10, 1928, was inoperative. The theory seems to be without support in the evidence. We have been unable to find in said statement of facts any mention of such a deed as the one referred to conveying lot 7, block 9, from L. N. Byrd to appellant, dated December 30, 1895. There is a deed of that date in said statement, but it is of lot 5, not lot 7, in block 9.

Assignments of error not in effect disposed of by what has been said are overruled, because we think none of them present error requiring a reversal of the judgment.

The judgment is affirmed.


text:
    ALLRED et al. v. J. C. ENGELMAN, Inc.
    No. 8658.
    Court of Civil Appeals of Texas. San Antonio.
    May 27, 1931.
    Rehearing Denied July 15, 1931.
    Bryce Ferguson, of Edinburg, and James V. Allred and T. S. Christopher, both of Austin, for appellants.
    Kennedy Smith, of Edinburg, for appel-lee.
   FLY, C. J.

This is an appeal from an interlocutory order granting a temporary injunction against James V. Allred, Attorney General, L. G. Phares, chief of the Texas highway patrol, .Bryce Ferguson, county attorney of Hidalgo county, and their agents and employees, restraining them from in any manner interfering with or molesting appellee, or its employees, in the operation of hauling water for irrigation purposes to the land of appellee.

Under the allegations of the petition for the writ of injunction, appellee has a tract of land in Hidalgo county which has been set out in citrus fruit trees, which require water for irrigation purposes; that water was being conveyed in metal tanks placed upon trucks drawn by gasoline motors to the ■land. It may be assumed from the allega-' tions that the trucks were used solely to convey water from the source of supply to the farm, to be placed thereon to sustain the life of the young trees. Appellants seek to obtain the license fee from each of the trucks.

In the exception to article 6675a — 2, it is provided “that owners of farm tractors, farm trailers, farm-semi-trailers, and implements of husbandry, operated or moved temporarily upon the highways shall not be required to register such farm-tractors, farm-trailers, farm-semi-trailers, or implements of husbandry; provided, however, that such farm-trailers and farm-semi-trailers are operated in conformity to all provisions of the law save and except the requirements as to registration and license.”

In article 6675a — 1, it is provided: “(q) By ‘operated or moved temporarily upon the highways’ is meant the operation or conveying between different farms, and the operation or conveyance, from the owner’s farm to the place where his farm produce is prepared for market or where same is actually marketed and return. (Acts 1929, 41st Ueg., 2nd C. &, p. 172, ch. 88, § 1, as amended Acts 1930, 41st Ueg., 5th O. S., p. 151, ch. 23, § 1.)”

While it may be contended that the operation of the water trucks is not strictly within the letter of the law, yet we think it is clearly within the spirit and intent of the law. It is absolutely indispensable to the existence of the citrus fruit trees. There is nothing of a commercial nature attached to the use of the trucks, but they are being used as implements of husbandry for the protection of crops on the farm. Even if there were doubts as to whether the trucks should be exempted under the terms of the statute, the doubts should be resolved in favor of the preservation of the crops of the farm. The operation of the enterprise of opening up hundreds of acres of citrus fruit land to cultivation and adding to the material wealth of the state should not be hampered, if not destroyed, by a too strict construction of the statute.

We do not deem it necessary to enter further into the case until it is fully developed on its merits.

The judgment is affirmed.


author: SEUUERS, J.

text:
    FUTRELL v. MARTIN.
    No. 3978.
    Court of Civil Appeals of Texas. Texarkana.
    May 20, 1931.
    Rehearing Denied June 4, 1931.
    C. E. Florence, of Gilmer, for appellant.
    W. R. Stephens, of Gilmer, and Wm. Hodges, of Texarkana, for appellee.
   SEUUERS, J.

This suit was instituted in the district court of Upshur county, and was based on-certain vendor’s lien notes executed by W. E. Crosby in favor of Whitaker Hill, which notes were transferred by Whitaker 1-Iill by indorsement on the back thereof to Mrs. F. D. Futrell, the appellant herein, and were by appellant transferred by indorsement on the back thereof to the appellee herein.

Said notes were dated December 4, 1922, and were due December 4, 1923, to December 4, 1928, inclusive. All of said notes were long past due at the time of the institution and filing of suit herein on April 24, 1929.

Upon the trial, appellant urged that she was discharged frqm any and all liability upon said notes by reason of the provisions of the Negotiable Instruments Act, in that she was not notified of the nonpayment of said notes by the principal maker thereof in the manner required by law.

Appellee answered alleging, in substance, that appellant had waived her right as in-dorser to be notified of the nonpayment of said notes, and had waived her right as an indorser to have said notes presented to the principal maker thereof for payment.

The evidence upon the issue of waiver was conflicting, and the court submitted to the jury two issues, which were as follows:

“(1) Did F. L. Futrell, acting for Mrs. F. D. Futrell, by acts, words and conduct, if any, at anytime after plaintiff acquired the notes introduced in evidence, waive presentment for payment of the notes by plaintiff to the maker, W. E. Crosby, upon the days said notes matured respectively?” Answer of the Jury: “Xes.” *
“(2) Did F. L. Futrell, acting for Mrs. F. D. Futrell, by acts, words and conduct, if any, at anytime after plaintiff acquired the notes introduced in evidence, waive being-notified of the non-payment of the notes not later than the day following the payment thereof?” Answer of the Jury: “Xes.”

The court instructed the jury in connection with the above issues as follows: “To aid you in answering the questions submitted, you are instructed that the word ‘waive’ means to relinquish a known right.”

. Tlie court entered Judgment upon the issues as submitted to the jury and their answers thereto in favor of the appellee, to which judgment the appellant excepted, and has duly prosecuted her appeal to this court for review.

Without discussing all of appellant’s assignments of error, we have reached the conclusion that the judgment of the trial court should be affirmed, but for the definition given by the court in defining a waiver. “Waiver” seems to-be universally defined'as “intentional relinquishment of a known right.” The court in this case omitted the word “intentional” in his definition as contained in the charge. Neither did the issues as submitted require the jury to pass upon the intention of the appellant. The question for determination is whether the issues as submitted in the light of the definition contained in the charge was error. This court has held in an opinion by Associate Justice Hodges that the intention to waive a right must be proved the same as any other fact, Adams v. A. A. Patton & Co., 173 S. W. 546, 547, from which opinion we quote: “A waiver has been defined to be the intentional relinquishment of a known right, based upon a consideration. M., K. & T. Ry. Co. v. Hendricks, 49 Tex. Civ. App. 314, 108 S. W. 745; 29 Eng. & Amer. Ency. of Eaw, 1091. That definition, of course, refers to contracts and agreements relinquishing rights. In such instances the intention to waive the right must be proved like any other fact.”

Since the intention to waive is a necessary fact to be proved, a judgment in favor of ap-pellee, based upon a waiver by the appellant of a known right which did not require the jury to take into consideration the intention of appellant in passing upon the question of the waiver, will not be permitted to stand.

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


author: HIGGINS, J.

text:
    COOKSEY v. COOKSEY.
    No. 2549.
    Court of Civil Appeals of Texas. El Paso.
    June 25, 1931.
    Rehearing Denied July 13, 1931.
    Fryer & Cunningham and Del W. Harrington, all of El Paso, for appellant.
    ICnollenberg & Cameron and M. Scarborough, all of El Paso, for appellee.
   HIGGINS, J.

Appellee brought this -suit against the appellant for divorce. Upon trial without a jury judgment was rendered in the plaintiff’s favor. It is assigned as fundamental error that the petition is subjefct to general demurrer. The record does not disclose that the demurrer was ever presented to the court and action thereon invoked. The demurrer is therefore considered as waived. But aside from this, the petition in general terms alleges criiel treatment of such a nature as to render the parties living together insupportable, and it has been recently held by the Commission of Appeals that general allegations of this nature are sufficient as against general demurrer. McCullough v. McCullough (Tex. Com. App.) 36 S.W.(2d) 459.

It is also assigned as error that the evidence is insufficient to sustain the action and judgment.

We have examined the evidence and are of the opinion it warranted the finding of the trial court that the defendant has been guilty of cruel treatment of such a nature as to render their further living together insupportable and supports the judgment rendered. Ingle v. Ingle, 62 Tex. Civ. App. 205, 131 S. W. 241; Caywood v. Caywood (Tex. Civ. App.) 290 S. W. 889; Rauch v. Rauch (Tex. Civ. App.) 237 S. W. 334; Swift v. Swift (Tex. Civ. App.) 37 S.W.(2d) 241; McCullough v. McCullough, supra.

There is no merit in the appellant’s position that the divorce cannot be granted on the uncorroborated testimony of the plaintiff. Wynn v. Wynn (Tex. Civ. App.) 251 S. W. 349; Tinnon v. Tinnon (Tex. Civ. App.) 278 S. W. 288.

But for that matter the facts and circumstances reflected by this record sufficiently corroborate the .testimony of the plaintiff.

The other matters referred to in the appellant’s brief are without merit and call for no discussion.

Affirmed.


author: McClendon, c. j.

text:
    MOORE v. JOSEPH.
    No. 7612.
    Court of Civil Appeals of Texas. Austin.
    June 10, 1931.
    Barnes & Pierson and George Mendell, all of Austin,, for appellant.
    Cofer & Cofer, of Austin, for appellee.
   McClendon, c. j.

Suit by Mpore, in his representative capacity as trustee in bankruptcy of Topper-Knew-bow Company, Limited, a corporation, and voluntary bankrupt, against Joseph, upon a verified account for merchandise bought by Joseph of the bankrupt. In addition to a general denial, and a special verified plea setting up a credit, Joseph pleaded a counterclaim for breach of a contract on the part of the bankrupt to deliver merchandise under an accepted order. In a trial to the court without a jury, the claim sued upon was established for $308.01, and the counterclaim for $380.75, the offset was allowed, and the net balance in favor of Joseph was established at $72.74. From this judgment Moore has appealed.

Appellant’s first proposition questions the judgment in so far as it allows the excess over appellant’s claim. The particular ground of error is not set forth further than may be inferred from copying section 68a of the Bankruptcy Act (11 USOA § 108(a) in the proposition. From the authorities cited and argument in support of the proposition we gather the point urged to be that to allow the offset would in effect be granting a preference to one creditor over others, in contravention of the general purpose of the bankruptcy act “to secure equality among all creditors of the same class.” This point would be well taken but for the fact that the quoted provision of the act expressly allows offsets of mutual debits and credits. There can be no question of mutuality in the instant case. The claims are between the same parties and in the same right.

Appellant’s second proposition asserts that the counterclaim is barred because not proved up in the bankruptcy proceeding within six months after the adjudication as provided by section 57n of the Bankruptcy Act, 11 USOA § 93(n). The authorities seem to be uniform in holding that the right of offset given by the act may be asserted in a suit by the trustee, regardless of whether the claim was filed in the bankruptcy proceeding within the required time. See Remington on Bankruptcy (3d) vol. 4, p. 174, § 1460, and authorities there cited.

Appellant’s third proposition complains of the action of the trial court in overruling a special exception which urged that the counterclaim was unliquidated and could not be offset against appellant’s liquidated claim.

Appellant’s petition was sufficient to sustain an action upon either an agreed price for the merchandise or upon a quantum vale-bat. In one count he alleged that, “Defendant then and there promised * ⅜ * to pay * ⅜ * the said several sums of money charged therefor in said account.” And in another, “That at the time of the sale and delivery * * * said, goods, wares and merchandise were reasonably worth the said sums of. money charged therefor in said account specified.” Under tlie latter allegation appellant’s suit was based upon an unliquidated claim, and the offset was allowable. Taylor v. Bewley, 93 Tex. 524, 56 S. W. 746, is directly in point.

The trial court’s judgment is affirmed.

Affirmed.


author: BAUGH, J.

text:
    ST. LOUIS, B. & M. RY. CO. et al. v. MURRAY.
    No. 7605.
    Court of Civil Appeals of Texas. Austin.
    May 13, 1931.
    Rehearing Denied June 3, 1931.
    Baker, Botts, Parker & Garwood, Andrews, Streetman, Logue & Mobley, and Arterbury & Coolidge, all of Houston, for appellants.
    C. A. Wright, of Fort Worth, for appellee.
   BAUGH, J.

Suit by Murray against the St. Louis Brownsville & Mexico Railway Company and the G. H. & S. A. Ry. Company for damages to a shipment of a carload of horses and mules from Bishop, Tex., to Eagle Lake, Tex., in September, 1925. The shipment was originally billed to Wharton, Tex'., and diverted to Eagle Lake while enroute. Upon special issue findings of the jury, judgment was rendered for appellee for $405 and interest, from which the railway companies have appealed.

The issues submitted to and found by the jury were: (1) That the stock, except as to admitted injuries to two head, were in good condition when delivered to the carrier at point of origin; (2) that they were' injured when delivered at destination; (3) that such injuries were not due solely to the inherent vices or natural propensities of the animals themselves; and (4) the amount of damages.

Appellants’ first contention is that plaintiff’s pleadings alleged specific grounds of negligence of the defendants in transporting said live stock; that he must establish such negligent acts by proof, find,- not having requested submission of same to the jury, he waived such grounds and cannot recover. We do not sustain this contention. The plaintiff did allege misrouting of the shipment over the Galveston, Harrisburg & San Antonio from Bay City to Wharton, and from Wharton to Eagle Lake, contrary to his request and instructions that it be routed over the Gulf Colorado & Santa Fé Ry. lines between those points. The evidence as to mis-routing of the shipment was conflicting, and this issue was not submitted to the jury. If said shipment was in fact misrouted by the carriers, contrary to appellee’s instructions, the carrier became guilty of misfeasance, and not merely of nonfeasance, and therefore liable for such loss as occurred by reason thereof. Texas & P. Ry. Co. v. Eastin & Knox, 100 Tex. 556, 102 S. W. 105; 7 Tex. Jur., 214. Not having requested the submission of this particular issue, appellee may be deemed to have waived it, and to be relegated to the other grounds of recovery alleged.

From a careful examination of the pleadings, it is obvious, we think, that appellee sought to recover from appellants upon their common liability as insurers. No caretaker accompanied the shipment. While there were allegations of misrouting; that said stock were retained on board the car an undue length of time; and that he believed they were fed and watered only once while enroute; he expressly alleged that he did not know what was done with said shipment anywhere on said trip. Nowhere do we find any express allegations of negligence or any charge of any specific acts which would constitute negligence. At most, his allegations were but general in character. The allegations in the instant case were much more general than those in Texas Mex. Ry. Co. v. Canales (Tex. Civ. App.) 299 S. W. 668; St. Louis Southwestern Ry. Co. v. Weathersbee (Tex. Civ. App.) 22 S.W.(2d) 986; and Texas & N. O. Ry. Co. v. Miller Bros. (Tex. Civ. App.) 22 S.W.(2d) 988, 989; in which it was held that same did not constitute allegations of specific acts of negligence. Misrouting was not charged as negligence. And the pleadings that said stock were retained on board the car without feed or water for more than 30 hours was obviously for the purpose of invoking the statutory penalty provided in article 889, R. S., 1925.

Eliminating the allegations of misrout-ing which appellee is held to have .waived, and those as a basis for the statutory penalty which was not submitted nor awarded, the allegations remaining are, in effect, merely that he delivered said stock to the initial carrier in good condition at Bishop on September 2, 1925; that they reached Bay City on September 3d, where they were unloaded and held until September 4th; that they were then forwarded on to Wharton, their original destination, but before arrival there were diverted at the request of appellee to Eagle Lake, where they arrived in an injured condition on the afternoon of September 5th. Such allegations do not constitute specific allegations of negligence, and appellants’ first five propositions, all presenting this question, are overruled.

When appellee showed good condition of the stock upon delivery to the initial carrier and injured condition upon Tedelivery to him at destination, no caretaker having accompanied the shipment, and that such injuries were not due solely to the inherent vices of the animals, a prima facie case of negligence against the carriers was made out. And even if not an absolute insurer of the live stock, as insisted by appellants, they must exonerate themselves of negligence by affirmative proof. We have read carefully the statement of facts, and find that appellants failed to make such proof. Considering only the evidence of the appellants, eliminating the charge of misrouting, and considering the shipment as being routed over the lines it in fact moved, we find only the following:

That said live stock was loaded at Bishop, Tex., about 8 p. m., on September 2, 1925, and moved from there at 11:20 p. m.; that it arrived in good condition at Bay City, a distance of 160 miles from Bishop, at 12:20 p. m., September 3d, and was there unloaded and watered and fed; that it was reloaded by the initial carrier at Bay City at 10:30 a. m., on September 4th, and turned over to the Galveston, narrisburg & San Antonio for transportation to Wharton, 35 miles away.' The Gulf, Colorado & Santa Fé Ry. also runs from Bay City to Wharton. The evidence does not show when the shipment left Bay City, but it arrived at Wharton at 5:30 p. m. on September 4th, and remained there until 12:20 a. m. of September 5th. It was then hauled to Rosenberg, arriving there at 1:30 a. m., where it remained until 10:20 a. m., was again picked up by the Galveston, Harrisburg & San Antonio and delivered at Eagle Lake at 1 p. m. of September 5th. The distance from Bay City to Eagle Lake over the Gulf, Colorado & Santa Fé was 60 miles. Between the same points over the Galveston, Harrisburg & San Antonio via Rosenberg as hauled was 96 miles. The time consumed by the Galveston, Harrisburg & San Antonio for this haul was about 27 hours. The evidence indicates that the live stock was in good condition when reloaded at Bay City. It also shows considerable handling between there and Eagle Lake. There was no evidence to indicate the nature, character, or extent of this handling, whether rough or otherwise; nor that the shipment moved with reasonable dispatch. The burden was upon the carrier to negative any negligence upon its part in both respects. It failed to meet that burden.

It is true, as urged by appellants, that absent any negligence on their part, they would not be liable for the condition of the live stock resulting from their own natural propensities or which would naturally or normally result to same from shipment between said points. Davis v. Sullivan & Opry (Tex. Com. App.) 258 S. W. 157; 8 Tex. Jur. 496. But not having rebutted by proof tbe prima facie case of negligence established against them, they cannot escape liability for the injuries shown, on the ground that a part of same resulted from the inherent vices of the animals themselves. Where the negligence of the carrier concurs with the natural propensities of the live stock to cause the injuries complained of, it is now well settled that the carrier, in the absence of any fault of the shipper, is liable for all of the injuries so sustained. Atchison T. & S. F. Ry. Co. v. Nation & Slavens (Tex. Civ. App.) 92 S.W. 823 (writ ref.); Gulf, C. & S. F. R. Co. v. Culwell (Tex. Civ. App.) 216 S. W. 457; St. Louis Southwestern Ry. Co. v. Culberson (Tex. Civ. App.) 248 S. W. 111; 8 Tex. Jur. 500. No contention is made that the shipper was guilty of negligence, and it is conceded that the proof was sufficient to sustain the finding of injuries at destination.

In the instant case, a prima facie ease of negligence of the carriers was foun(d by the jury. The injuries were such as, under the evidence, might have been caused in part at least by the natural propensities of the live stock. They were such as would as well have resulted from the long delay enroute, or from rough handling. While the rule as to liability as insurers in carrying live stock is subject to the exception, in addition to acts 'of God or the public enemy, that the carrier is not liable for injuries resulting from the inherent nature or propensities of the animals; it was incumbent upon the carrier, when injuries to the live stock occur in transit, to show that such injuries occurred without its fault. Having failed to do so, it is immaterial that a part of such injuries may have occurred from the natural propensities of the animals, and the trial court did not err in refusing to submit to the jury the issue as to what portion, if any, of such damages, so resulted. Gulf, C. & S. F. Ry. Co. v. Culwell, supra; 10 C. J. 188; 8 Tex. Jur. 496.

The judgment of the trial court is affirmed.


author: RANDOLPH, J.

text:
    HEATLEY v. W. P. PONDER & SONS et al.
    No. 3637.
    Court of Civil Appeals of Texas. Amarillo.
    June 24, 1931.

      R. H. Cocke, of Wellington, for appellant.
    R. H. Templeton, of Wellington, for appel-lees.
   RANDOLPH, J.

This suit was filed by appellant against ap-pellees in the district court of Collingsworth county, Tex. The trial court sustained a number of special exceptions to plaintiff’s petition, and the plaintiff declining to amend his petition, the court dismissed the case. Prom this action of the court appeal has been taken to this court.

We are confronted at the outset of the' consideration of this case with a number of objections to our consideration of the appellant’s brief. The appellees cite rules 23, 24, 25, 26, and 30, governing the Courts of Civil Appeals in the preparation of appeals to this court, and, among other objections, raise the question that appellant has failed to file assignments of error in the trial court or to bring such assignments forward in his brief in this court, and to support same with statements, as required by law.

The Forty-Second Legislature recently passed an act, namely, “H. B. No. 1002” (Vernon’s Ann. Civ. St. arts. 1757, 1846), an act to amend articles 1757 and 1846 of .the Revised Civil Statutes of Texas, 1925, and declaring an emergency, in which it is provided, in all cases appealed to the Courts of Civil Appeals or taken to the Supreme Court, it shall be sufficient if said briefs contain the following:

“1. A statement as to the nature and result of the suit.
“2. The alleged error or errors upon which the appeal is predicated.
“3. The authorities relied upon.
“4. A statement or argument on the errors assigned.”

It is further provided in this act that the Supreme Court may adopt rules' with reference to the form and time of filing of briefs generally, but not inconsistent with the provisions thereof.

It was the evident purpose of the Legislature in the passage of this act to simplify the method of briefing a case in this court, and in furtherance of that purpose, we will give the act a liberal construction.

Appellant’s brief complies with the requirements contained in the act. There is a statement of the case contained in it; the alleged errors of the trial court are pointed out; .the authorities relied upon are given; a statement or argument follows the errors pointed out.

If it is true that no assignments of error were filed in the trial court, none are required. If it is only necessary that the brief point out the errors upon which the appeal' is predicated, what purpose would be served by the filing of assignments of error in the trial court? This act does not require that the errors pointed out in the brief be based upon an assignment of error duly filed in the trial court. This being true, what office has an assignment of error to perform? The “errors pointed out” are not to be designated by the time-honored term of assignment of error, but they are intended to be just as potent when pointed out. It may be said that this procedure as set out in the brief gives the trial court no opportunity of correcting its errors. Neither does the appeal from a judgment in a case tried before the court without the intervention of a jury. Trying a case before the court, when a judgment is rendered, all that is necessary to speed the case on its appeal to the Court of Civil Appeals is for the judgment to be duly excepted to. When this is done, the law presumes that the trial court has lost his interest in the case and the rule requiring assignments of error to be filed needs no approval of same by the trial court. The disposition of a case upon the law of' the case by the court, as in the case at bar, is on a like basis with,a judgment rendered upon the facts and law when a ease is tried before the court. Por that reason the trial court need not have his errors pointed out to him, but they are left to be passed on by the appellate courts.

We therefore overrule all objections to our consideration of the appellant’s brief.

The questions submitted on this appeal arise by reason of the rulings of the trial court upon the plaintiff’s pleadings.

The plaintiff’s second amended original petition alleges substantially as follows: That all matters and things transacted and done pertinent hereto were transacted in the state of Texas and principally in Collingsworth county, Tex., and that during all of said times since plaintiff’s cause of action accrued, the defendants and each of them have been nonresidents of the state of Texas until within approximately twelve months prior to this date, Plaintiff further alleges that on July 12, 1924, he entered into a written contract with the defendants W. P. Ponder & Sons, a copart-nership composed of W. P. Ponder, T. Heatley, I-I. Cawthon, Elmer Ponder, and Revis Ponder, by the terms of which the plaintiff was to buy cotton for the defendants on a joint account in the state of Texas and especially at Wellington, Dodsonville, Shamrock, and Wheeler, Tex., by the terms whereof plaintiff was to receive as compensation for his services one-half of the profits from the purchase and sale of said cotton during the cotton season ending in the spring of 1925 (attaching thereto a copy of such contract).

Further plaintiff alleges that by virtue of said contract plaintiff did purchase cotton on said joint account during the cotton seasons of 1924 and 1925, and that therefrom there was a profit made of $19,000, of which this plaintiff is entitled to one-half, or the sum of $9,500, as well as interest thereon from June 1," 1)925, to this date, at the rate of 6 per cent, per annum.

That the defendants have failed and refused to give to this plaintiff an accounting of said transactions.under said joint account and that the defendants should be required to file in this court a verified accounting of all of said transactions; that all of the boohs of account are now in the possession of the defendants herein and notice is given to them to produce same on the trial of this cause, or secondary evidence will be offered to prove same; that plaintiff has made repeated demands of defendants for the payment of the amount due him and of and for an accounting of said matters hereinbefore alleged, but that defendants have failed and refused to imahe such accounting and have failed and refused to pay the amount due him, to his damage $9,500, as well as interest from June 1, 1925, thereon. .

Plaintiff prays for an accounting and for judgment for his debt, etc.

The appellees attached the plaintiff’s second amended original petition upon two grounds, briefly stated: (1) That “the contract which is the basis of this suit was not closed and terminated so that the rights of the plaintiff could be settled before November 27,1929, by reason of the fact that all claims growing out of the transactions under said contract had not been settled against the joint contract account" and no notice given,” as all this is a conclusion of the pleader and is surplusage and irrelevant in that plaintiff did not declare upon any right or sue for any amount growing out of any transactions that were settled on November 27, 1929, and because • said allegations did not form the basis of plaintiff’s suit, which is for profits made in buying cotton for the cotton seasons for the years 1924 and 1925. (2) For the reason that the matters and things upon which the plaintiff’s suit is based occurred more than two and four years prior to the filing of plaintiff’s suit and more than two and four years before the filing of plaintiff’s second amended original petition herein, said petition asserting a néw cause of action against the defendants different from that asserted in plaintiff’s original petition.

The action of the trial court in sustaining the above exceptions to plaintiff’s second amended original petition was equivalent to the sustaining of a general demurrer to plaintiff’s said petition, for the reason that the "matters excepted to form the basis of plaintiff’s cause of action. This the court recognized when the plaintiff declined to amend, by dismissing the suit.

The plaintiff’s petition sets out clearly the partnership between the plaintiff and the defendants; the terms of the contract for the buying and sale of cotton; the compensation he was to receive; the performance of his services for the years 1924 and 1925; the sum total of the profits made by the firm; the amount due and owing to plaintiff; the provision in the contract with reference to the time of settlement between plaintiff and defendants.

We are of the opinion that the petition states a cause of action, and that that cause of action has not been barred by the two and four years statutes of limitation (Rev. St. 1925, arts. 5526, 5527).

The contract between the plaintiff and defendants contains this provision: “Settlement is to be made between the parties when cotton purchased is sold and all claims have been settled against the joint account herein provided for.” Another term of said contract provides that the contract may be terminated by either party at any time on giving the •other party ten days’ notice, whereupon all business matters shall be adjusted when all claims are in and settled.

The partnership was organized for the purpose of plaintiff buying and selling cotton during the cotton seasons of 1924 and 1925, but there was and could be no termination of the partnership and settlement of its affairs until all outstanding debts and obligations had been settled. The plaintiff’s pleading shows that the Bussy-Watkins suit was an-unsettled claim against the firm that was being litigated. Therefore, it was an unsettled claim, each firm asserting a claim against the other, which was finally adjudicated on November 27, 1929. The record fails to disclose that any steps were ever taken to dissolve the partnership under the clause in the contract requiring ten days notice. However, this clause could not become effective until “all claims are in and settled.”

Whether the relationship between the parties constituted a partnership or was only a contract of employment would not change the application of the provisions as to the termination of the contract only on settlement of outstanding claims. Southern Bag & Burlap Co. v. Boyd (Tex. Com. App.) 38 S.W.(2d) 565.

The plaintiff’s petition alleges that a partnership existed between the plaintiff and defendants, and this was not denied under oath. On the face of the petition, a partnership is alleged, and, if this was true, the partnership would continue to exist until its dissolution was shown and this was a matter of evidence to be heard on the trial on tlie merits. Devine v. Martin, 15 Tex. 26, 27, 28. The settlement of outstanding claims against a partnership is the transaction of partnership business, hence limitation did not begin to run until such transaction was closed. Bluntzer v. Hirsch, 32 Tex. Civ. App. 585, 75 S. W. 326; Roberts v. Nunn (Tex. Civ. App.) 169 S. W. 1086; Easley v. Clay (Tex. Civ. App.) 16 S.W.(2d) 888.

We therefore hold that the statutes of two and four years limitation did not begin to run against plaintiff’s cause of action until the settlement oí the controversy between Bussy and Watkins Gin Company and the plaintiff’s firm.

We therefore reverse the judgment of the trial court and remand the case to that court for a trial on its merits.


text:
    FIDELITY UNION CASUALTY CO. v. ARNOLD.
    No. 4039.
    Court of Civil Appeals of Texas. Texarkana.
    June 18, 1931.
    Rehearing Denied June 25, 1931.

      W. J. Townsend, of Lufkin, and Collins & Houston and W. E. Johnson, all of Dallas, for appellant.
    Victor A. Smith and Smith, West & Glad-ney, all of Henderson, for appellee.
   WILLSON, C. J.

(after stating the case as above).

Appellee, of-course, was not entitled to recover anything of appellant without proof that he was an employee of Leath and Maddox at the time he was injured. That ap-pellee was such an employee was, appellant insists, disputed in the evidence adduced at the trial. The court was not requested to submit and did not submit to the jury an issue as to whether appellee was such an employee or not. To render judgment for ap-pellee in that state of the case, appellant asserts, was error entitling it to a reversal of the judgment.

The contention is on the theory that the provision in article 2190, R. S. 1925, that upon appeal “an issue not submitted and not requested is deemed as found by the court in such manner as to support the judgment if there is evidence to sustain such finding” was not applicable to the case. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084; Norwich Union Insurance Co. v. Chancellor (Tex. Com. App.) 5 S.W.(2d) 494, and Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S. W. 902, are cited by appellant as cases supporting its contention.

The holding in the Ormsby Case was that “the rule [quoting the syllabus in 117 Tex. 242, 1 S.W.(2d) 1084] established by Art. 2190, Revised Statutes, that on appeal in a case submitted on special issues an issue not submitted or requested to be submitted is deemed as found by the trial court in such manner as to support its judgment applies only to such omitted issues as are supplemental or incidental to, and which support, the findings on which judgment was based. It does not extend to independent grounds of recovery or defenses. These are waived, by the party asserting them by failure to request their submission. They can not be considered as found by the court in his favor in order to support a judgment not warranted by the findings on independent grounds of recovery or defense upon the special issues which were submitted.” As we understand the holding, it does not support appellant’s view of the law. As we see it, the issue omitted in the instant case was “supplemental or incidental to, and which supported, the findings on which judgment was based.” That this is true, we think, is made plain by the statement in North v. Atlas Brick Co., 13 S.W.(2d) 59, 61, where Judge Speer of the Commission of Appeals, referring to the Ormsby Case and to Bulin v. Smith (Tex. Com. App.) 1 S.W.(2d) 591, said: “An issue submitted in part, or even defectively submitted, with the acquiescence, of the parties, is not waived. It is like the ordinary issue of negligence in a personal injury case. The complete ultimate issue is usually made up of four elements or subsidiary issues, being those of (1) the fact alleged, (2) whether the same be negligence, (3) whether such negligence be the proximate cause of injury, and (4) the amount of damage. Now, if one or more of such elements, or issues as they are usually denominated, be submitted and the others not submitted nor requested to be submitted, such issue is not waived, but the court may find, and under the statute is deemed to have found, the unsubinitted issues in such way as to support the judgment rendered by him.” The holdings of the Commission of Appeals in the Brick Company Case were expressly approved by the Supreme Court, and what Judge Speer said as quoted above we think should be treated as an authoritative interpretation of the meaning of the holding in the Ormsby Case; especially so, since such interpretation was adopted and applied by the Commission of Appeals in disposing of the writ of error granted by the Supreme Court in McDaniel v. Orr, 30 S.W.(2d) 489. And see Oil Corporation v. Garrett (Tex. Civ. App.) 22 S.W.(2d) 508.

So far as the holding in Ins. Co. v. Chancellor (Tex. Com. App.) 5 S.W.(2d) 494, 495, mainly relied upon by appellant, it seems, may be in conflict with that in the Brick Company Case, we think it should be treated as overruled. The Chancellor Case was like this one, in that there the plaintiff sought to recover as an employee of one Wattinger, while the insurance company claimed he was an employee of one Morris, an independent contractor. There was a jury finding that Morris w'as an independent contractor, and no finding, and none requested, as ⅛ whether the plaintiff was an employee of Wattinger or not. In reversing the judgment of the Court of Civil Appeals [2 S.W.(2d) 495] and affirming a judgment of the trial court in favor of the insurance company, the Commission of Appeals held that a presumption could not be indulged in support of the judgment that the trial court had found that Chancellor was not an employee of Wattinger, and then said: “If it should be [said] that the submission of the issue whether or not Morris was an independent contractor was in effect in part a submission of the issue of. whether or not defendant in error [Chancellor] was an employee of Wattinger, so as to preclude the inference of waiver of the latter issue, then .under the statute as interpreted by the authorities above cited [Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, and Bulin v. Smith (Tex. Com. App.) 1 S.W.(2d) 591] the trial court will be presumed to have found such latter issue in such a way as to support his judgment. * * * So that, in any event, the judgment the trial court should have been affirmed as conclusively finding against defendant in error on the indispensable issue of his being an employee of Wat-tinger.”

The holding in the Brick Company Case, referred to above, which we regard as authority requiring this court to overrule appellant’s contention, is not in conflict with the holding in Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S. W. 902, the other case cited by appellant in its brief.

As we view the record, the judgment is not subject to the objection urged to it in the assignment of error referred to. Therefore, it will be affirmed.