author: ARCHER, Chief Justice.

text:
    Gertrude Sue MAINER, Appellant, v. AMERICAN HOSPITAL AND LIFE INSURANCE COMPANY et al., Appellees.
    No. 11106.
    Court of Civil Appeals of Texas. Austin.
    Oct. 23, 1963.
    Rehearing Denied Nov. 13, 1963.
    Cofer, Cofer & Hearne, Austin, for appellant.
    Graves, Dougherty, Gee & Hearon, Austin, Atwell, Grayson & Atwell, Dallas, Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, for appellees.
   ARCHER, Chief Justice.

This is a suit on two life insurance policies which had been in effect longer than the statutory two year period after which each policy became incontestable. Each appellee contested the accidental death benefits provided by its policy on the basis of exceptions contained in policy provisions concerning accidental death benefits. The District Court held that the accidental death provisions were separate contracts, unaffected by the statutory incontestability clause, and found that the exceptions contained in the policies were applicable to Mr. Mainer’s death.

The appeal is predicated on four points as follows:

“First Point. After the Great National (Western Reserve) policy became incontestable under its own express provisions, the District Court erred in permitting Great National to contest, and defeat, a part of the amount of insurance provided by said policy.
“Second Point. The District Court erred in holding that the accidental death provisions are separate and distinct contracts from the other coverage provided by the policies.
“Third Point. The District Court erred in holding that an insurer may except accidental death insurance coverage from the applicability of the statutory incontestability clause required by Article 3.44.
“Fourth Point. The District Court erred in holding that the death of the Insured resulted from committing a felony, because that Conclusion depended upon a strained and technical construction of the policy exception concerning a ‘felony’; and the language of the policy should be given its ordinary, non-technical meaning.”

Appellees take the position that the insured met his death in an automobile collision while driving his automobile in the wrong direction of a median-divided limited access four lane highway, and at the time of the collision was intoxicated and was violating a criminal law; that the policies contained both life insurance provisions and supplementary contracts dealing with accidental death and are defending on the grounds that the circumstances under which Mr. Mainer met his death were not covered; that appellees were not prohibited by law from inserting in their accidental death benefits rider and their supplementary contracts limitations upon coverage denying coverage where the insured died while “committing an assault or felony” were valid under Articles 3.44 and 3.45 of the Insurance Code, V.A.T.S.

. By counterpoints appellee American Hospital says that the court correctly held that Article 3.44 has no material application to the accidental death provisions, because there had been no “contest” within the meaning of the statute and the court correctly held that the insured met his death while committing a felony within the exclusion from coverage. National Life by counterpoint says the court was correct in holding that Article 3.44 has no material application to the supplementary contracts because there had been no “contest” and that the supplementary contracts are not life policies but are accident policies pursuant to the provisions of Article 3.45, and by crosspoint that the court erred in concluding and finding that the casualty involved did follow naturally and was reasonably expected and foreseeable from the voluntary conduct of the insured on the occasion in question.

“1. ‘Attached to and made a part of’ the American Hospital and Life Insurance Company policy are provisions for ‘Additional Benefits In Event of Death By Accidental Means’ ($5000). This policy provided that it would be incontestable after two years ‘except that part * * * relating to additional insurance benefits in event of death of the Insured by accidental means.’ The policy further expressly provided that ‘the company may contest liability under this additional (accidental death) insurance benefit at any time.’ With respect to the accidental death benefit the policy provided an exception if the death of the Insured resulted from committing a felony.
“With respect to this American Hospital and Life policy two questions are presented:
“(1) Whether the above exceptions to incontestability are permitted by Article 3.44, Insurance Code, which Statute requires that every life insurance policy shall contain a provision that the policy shall be incontestable after two years, except as to military service in time of war and nonpayment of premiums. (Third Point)
“(2) Whether, if the Statute does permit other exceptions to incontestability, the death of John R. Mainer resulted from committing a felony. (Fourth Point)
“2. ‘Attached to and forming a part of’ the Western Reserve policy, which Great National Life Insurance Company assumed, were provisions for an ‘Automobile Accidental Death Benefit’ of $2,000 and also an ‘Accidental Death Benefit’ of $2,000. This policy became incontestable after one year, and the incontestability clause in the policy contained only one exception to incontestability, to wit, nonpayment of pre-miuns. With respect to the accidental death benefits the policy provided exceptions as to death sustained while under the influence of intoxicants or while violating any criminal law.
“With respect to this Great National (Western Reserve) policy only one question is presented:
“(1) Whether, even if an Insurer is permitted by Texas law to exclude from the statutory requirement of incontestability those exceptions which relate to accidental death coverage, an Insurer may contest liability after its policy becomes incontestable if the policy does not exclude from incontestability the exceptions relied upon. (First Point and Second Point)”

The trial court made findings of fact and conclusions of law and we believe such were justified by the evidence and the law.

The findings were, in substance, that the plaintiff is the beneficiary in the policies and made demand for payment of the accidental death benefits and payment was refused and specifically that:

“3. John Rheims Mainer, the insured under the policies referred to above, met his death on January 19, 1961, in an automobile collision while traveling on the public, interregional highway, Interstate 35, in New Braun-fels, Texas, at or near the point where said highway passes over Farm Road 725.
“(a) Mainer’s death resulted from bodily injuries caused in the collision.
“(b) Mainer sustained his death in a head-on collision with an automobile driven in a southerly direction by one George B. Whitworth. At the time of the collision Mainer was driving an automobile, of which he was the sole occupant, north on the southbound two lanes of a divided, four-lane highway, and in the wrong or lefthand lanes thereof.
“(c) Mainer’s death was sustained while he was intoxicated and under the influence of intoxicating liquor.
“(d) Mainer’s death was sustained while he was driving and operating his automobile on a public road in this State while intoxicated and under the influence of intoxicating liquor, and while so driving and operating such automobile he drove his automobile into and killed one George B. Whitworth without justification or excuse and in the absence of circumstances which reduce the offense to negligent homicide.
“(e) All above findings of this paragraph 3 and each of its subparagraphs above were established by the overwhelming weight of the evidence and beyond a troubling or reasonable doubt.”

The court concluded as a matter of law that:

“1. American Hospital and Life Insurance Company is not prohibited by law from inserting in its accidental death benefit rider a limitation of coverage such as that found here so that accidental death benefits are not payable where the insured died ‘while committing an assault or felony;’ and such limitation or exception of coverage is valid and effective.
“2. Great National Life Insurance Company is not prohibited by law from inserting in its accidental death benefit coverage and in its automobile accidental death benefit coverage a limitation of coverage denying such benefits where the insured died while under the influence of intoxicants or while violating any criminal law and such limitations or exceptions to coverage are valid and effective.
“3. The accidental death provisions of the above policies are, in each instance, separate and distinct contracts from the life coverage whether contained in one instrument or not.
“4. The incontestability clause required by Article 3.44, Texas Insurance Code, has no material application to the accidental death benefits provisions of the policies involved in this case.
“5. The exceptions and limitations of coverage referred to above as contained in the policies in issue here do not constitute provisions for any mode of settlement at maturity of less value than the amounts insured on the face of the policy as forbidden by Article 3.45.
“6. The form of the incontestability clause inserted in these contracts is immaterial to this cause since none more lenient to the insuror than the statute, Article 3.44, Texas Insurance Code, would be permitted by law.
“7. Mainer sustained his death while intoxicated and while under the influence of intoxicating liquor within the meaning of the limitation or exception of coverage in the Great National Life Insurance Company policy referred to herein.
“8. Mainer sustained his death while violating the criminal law within the meaning of the limitation or exception of coverage in the Great National Life Insurance Company policy referred to herein.
“9. Mainer sustained his death while committing a felony within the meaning of the limitation or exception of coverage in the American Hospital and Life Insurance Company policy referred to herein.
'TO. Mainer’s death resulted from bodily injuries caused ‘directly, exclusively and independently’ of all other causes by ‘external, violent and accidental’ means, within the meaning of such and similar terms used in the policies involved here.”

We do not believe the limitations as to coverage to be contests of the policy.

In McCann v. National Life & Accident Insurance Co., Tex.Civ.App., 226 S.W.2d 177, er. ref., the court found and stated:

“Thus we find that our courts of civil appeals and the Supreme Court have all held that where the policy contains an exception or limitation of full liability by reason of suicide or by reason of naval or military service the provisions are valid and binding, entirely because the statutory enactments referred to authorize such provisions to be incorporated in the policy. A defense based upon such exception is not a contest within the purview of the incontestable provision of Art. 4732, but such defense, being based upon valid statutory enactments, must be allowed as an effort to carry out the terms of the policy as written. Any provision limiting liability to less than the full amount of the policy for other reasons than those specified in the statute is not allowable as a valid defense. * * * We therefore hold that the clause in the policy limiting the liability of the appellee to the amount of legal reserve under the policy is a valid and binding provision, that it is not in conflict with the incontestable provision in the policy, that no ambiguity exists by reason of the two provisions, that this is not a contest under the incontestable clause of the policy or of the statute, and that the trial court did not err in rendering judgment for the amount of the legal reserve stipulated by the parties.”

There is a distinction between contest of a life insurance policy and a defense based upon limitations as to coverage therein. McCann v. National Life & Accident Insurance Co., supra, in which case the court discussed the Mutual Reserve Fund Life Association v. Payne, Tex.Civ.App., 32 S.W. 1063, and stated that the Payne case was not in point.

In First Texas State Insurance Co. v. Smalley, 111 Tex. 68, 228 S.W. 550, the court stated that the purpose of Article 4733 R.C.S., 1911, now Article 3.45 was to restrict limitations as to coverage in life policies.

In Southwestern Life Insurance Co. v. Houston, Tex.Civ.App., 121 S.W.2d 619, er. dism’d, it was held that the defense was not a contest of the policy but merely an enforcement of the policy as written and that Article 3.44 only applied to situations where the existence of the policy itself was challenged.

It has been held in a number of cases cited in Benefit Association of Railway Employees v. Hutson, Tex.Civ.App., 321 S.W.2d 607, er. ref., n. r. e. that limitations as to coverage such as are contained in the Supplementary Contracts are not in violation of Article 3.44 because they are not a contest.

In Metropolitan Life Insurance Company v. Conway, 252 N.Y. 449, 169 N.E. 642, it was held:

“ * ⅜ * The provision that a policy shall he incontestable after it has been in force during the lifetime of the insured for a period of two years is not a mandate as to coverage, a definition of the hazards to be borne by the insurer. It means only this, that within the limits of the coverage the policy shall stand, unaffected by any defense that it was invalid in its inception, or thereafter become invalid by reason of a condition broken.”

Appleman, Insurance Law and Practice, Volume 1, Sections 331 and 392.

We believe the trial court was correct in holding that the Supplementary Contracts are not life policies but accident policies pursuant to the provisions of Article 3.45.

In Greer v. Franklin Life Insurance Company, 148 Tex. 166, 221 S.W.2d 857, the court in considering the question of whether or not double indemnity was available to the beneficiary where the circumstances of the death of the insured fell within one of the exceptions as to coverage in the double indemnity benefits, held in construing Article 4733, now Article 3.45, that the double indemnity portion of the policy was a separate contract and was to be considered as an accident contract, expressly not included within the prohibitions of Article 3.45.

The Supplementary Contracts in the case before us are attached to the life policy in the usual form of a rider, separately signed and provide that they are supplementary coverage and refer to the life policies in order that the beneficiary might be specified without duplication and clearly define the terms of their coverage.

The Supreme Court in Republic National Life Insurance Co. v. Spillars, Tex., 368 S.W.2d 92, recently held that “As a general rule contracts of insurance are to be strictly construed in favor of the insured, but this does not affect the further general rule that contracts of insurance are to be construed as other contracts, and that all parts of the contract are to be taken together, and such meaning shall be given to them as will carry out and effectuate to the fullest extent the intention of the parties.”

We have given careful consideration to the several cases cited by appellant, such as National Life Underwriters v. Williams, Tex.Civ.App., 197 S.W.2d 487, er. ref., but do not believe such to be controlling.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: FRASER, Chief Justice.

license: Public Domain

text:
    SHELL OIL COMPANY, Appellant, v. Joe Henry REINHART et al., Appellees.
    No. 5587.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 2, 1963.
    Rehearing Denied Oct. 30,1963.
    Turpin, Kerr, Smith & Dyer, Max N. Osborn, Midland, for appellant.
    John J. Watts and Thomas A. Sneed, Odessa, for appellees.
   FRASER, Chief Justice.

This is an appeal from a judgment awarding the appellee and intervenor $35,000.00 for damages in a third-party suit against the lease owner whose well was being treated by an independent contractor at the time of the accident.

The circumstances leading up to the incident which is the basis for this lawsuit are as follows: The appellant, Shell Oil Company, entered into a written contract with a company known as Cody & Teague Transport, Inc., hiring the latter to process certain wells belonging to appellant so as to remove a build-up of paraffin in the tubing. This process consisted mainly of pumping hot oil into the well so as to melt the paraffin and thereby permit it to be pumped out of the well and into the receiving line. In addition to this procedure, a paraffin solvent was introduced into the wells. It is uncontradicted that this solvent was a highly inflammable chemical. On the day of the accident appellee Rein-hart and his foreman, á Mr. McWhorter, the employees of Cody & Teague, met with a foreman of appellant, who explained to them the job to be done, which apparently consisted of treating two wells. It appears from the record that one well was treated successfully and without incident. During the treatment of the second well the accident occurred. It seems that at the well a man named Faulkner, described as a pumper for Shell Oil Company, was performing some sort of service. The jury said it was a supervisory one in effect, but the trial judge, by his ruling that appellee was not a loaned servant or employee, held that it was not. In any event, this pumper of appellant and the appellee found out that the little pump on one of the two trucks there present and belonging to Cody & Teague would not, at this particular well, pick up the solvent out of the bucket into which it had been poured from a ten-gallon drum. Faulkner, the appellant’s pumper, and appellee then got on top of what they called the hot oil truck tank, and began pouring the solvent directly into the hose. This operation was almost completed when, for some reason, the oil came back up out of the hose and ignited when it hit the hot manifold of the transport truck. Cody & Teague had two trucks there for this operation. When the solvent came back out of the hose and caught fire, appellee was allegedly burned. His statement is that his “britches leg” had been saturated with the solvent, and that when the fire happened, it ignited his “britches leg” and he was burned, resulting in the claimed injuries. The case was tried to a jury and the theory of “loaned servant” was pleaded, among other defenses, by the appellant.

We feel that this case must be re-tried as, in our opinion, not only are there reversible errors present, but the answers of the jury to the various issues are so in conflict that a judgment thereon cannot be properly sustained.

Reviewing the issues as to ultimate facts the jury found as follows: That appellant furnished a highly inflammable solvent and that such was negligent and a proximate cause; that appellant failed to post visible sign warnings with regard to this inflammable solvent and that such was negligent and a proximate cause; that appellant directed that the solvent be poured directly into the pump mechanism, and that this was negligent and a proximate cause. After all these findings, the jury then, in Issue No. 10, answered that appellant did not fail to warn plaintiff that the paraffin solvent used upon the occasion was highly inflammable. Then, after the finding of damages, the jury found that plaintiff-appellee failed to ascertain that the solvent was dangerous and inflammable, and that such failure was negligent, but not a proximate cause. Then, in Issues 17, 18 and 19, the jury further found that plaintiff-appellee failed to heed the warnings and cautions upon the barrels of the paraffin solvent; that such failure was negligent, but not a proximate cause of his injury. They further found that his own foreman failed to warn him of the danger in using this solvent; that such was negligence, but was not a proximate cause of his injury. They also found that the foreman failed to heed the warnings of danger and caution on the barrels of solvent and that such was negligence, but not a proximate cause of plaintiff’s injury. They further found that McWhorter (Cody & Teague’s foreman and plaintiff’s boss) permitted the solvent to be poured into the hose, and that such was negligence but not a proximate cause. The jury then further found that Cody & Teague failed to warn plaintiff of the danger in using the solvent, but that such was not negligence. Then they found that plaintiff failed to keep a proper lookout for his own safety, but held that this was not a proximate cause of the accident. Then, in answer to Issue 34, the jury found that plaintiff was a special, or loaned, employee of appellant. There does not seem to> have been any controversy over the definition attached to this issue. ' Then, in Issue 35 the jury found that plaintiff assumed the risk of the danger in which he became involved. In Issue 36 the jury was asked if plaintiff knew, or by the exercise of ordinary care should have known, that the solvent was inflammable. The jury answered “No”, even though in Issue 10 they found that appellant had not failed to warn plaintiff that the solvent was highly inflammable. Lastly, the jury found that the incident was not the result of an unavoidable accident.

The first groups of issues, to-wit, numbers 1 to 6, we think were negatived by the jury’s finding that the appellant did not fail to warn appellee that the material used was a highly inflammable solvent. Issues 7, 8 and 9 pose a peculiar problem in view of the court’s holding. The court held, as a matter of law, that in his judgment plaintiff was not a loaned servant or employee of appellant; but in answer to Issues 7, 8 and 9 the jury says that appellant directed the solvent to be poured directly into the mechanism. This being true, and the court having held that plaintiff was not a loaned employee and therefore not under the supervision of appellant, it seems to us inescapable that plaintiff then must have, by the answers of the jury and the ruling of the court, voluntarily gone up on the truck to help pour a product into the hose which the jury said Shell had not failed to warn him was dangerous. If, as the court holds, he was not a loaned servant, then, of course, he was not in a position of assuming a risk (although the jury later found that he had assumed the risk), as assumed risk, we believe, applies to employees under the control of a negligent employer. Plaintiff himself says that his boss had nothing to do with his getting up on the truck and, by his own testimony, placed him away and on the other side of the truck. There is no evidence in the record from McWhorter, plaintiff’s boss. He neither testified directly nor by deposition, so we are left with the presumption, on the basis of the jury’s finding and the court’s ruling, that plaintiff voluntarily clambered up on to the truck along with Faulkner, the agent of the defendant, to pour this solvent into the hose. Plaintiff himself testified that the solvent was put in first, and under fairly intensive examination the plaintiff testified that it was the pumper, the agent of defendant, who directed the entire operation with reference to the inflammable solvent. He says that the pumper decided that “we would pour it into the hose instead of in the truck”. Plaintiff further says — and we here reproduce parts of the record in order to illustrate the actual situation — as follows: (the following excerpts are included as gathered together in appellant’s brief, and we include Statement of Facts page numbers to show the location of each):

Cross examination:
“Q What happened then after he (Faulkner) got out there with this stuff, did you proceed to pour it into the well or what?
“A We poured it in a five gallon bucket and was going to pump it with that little pump into the well before we put the hot oil in it and the pump wouldn’t pick it up. He said, ‘Well, it is too thin.’ Then he said, ‘let’s pour it in the truck.’
“Q Was it at his suggestion that you poured it in the truck?
“A That is right. I got up on top of the truck to open the top.” (S.F. 37) * * *
“Q What did you all do?
“A He decided we would pour it in the hose instead of in the truck.” (S.F. 38) * * *
“Q As far as putting the paraffin solvent in there, he (McWhorter) was the one in charge of the whole job, wasn’t he?
“A I wouldn’t say that. The pumper was out there and telling us what to do.” (S.F. .54) * * *
“Q Now, who did you say made the decisions ? As I understand your testimony, the pumper decided you would pour it in the truck, is that right ?
“A Yes. The pumper is the man that told me to get up on the truck and open it and he would hand it to me and we would pour it- in there.” (S.F. 60) * * *
“Q You were going to get up on there and pour it in there?
“A That is right.
“Q Then you decided you would pour it in the hose ?
“A The pumper did.
“Q The pumper did. That is not what you told me when I took your deposition.
“A I think it is.
“Q You told me in your deposition, did you not, Mr. Reinhart, that we decided to pour it into the hose, do you recall that? That is on page 28, about the third question. ‘All right, then what happened’ and your answer was ‘Well, he got up there with me and we decided that we would pour it in there, that we would just pour it in the hose.’ You said there ‘we’.
“A I believe that should have been he instead of we.” (S.F. 60-61) * *
“Q Isn’t it the truth of the matter that Mr. McWhorter is the one that was directing the operations out there and Mr. McWhorter was the one that suggested that you all get up on the truck?
“A No, Mr. McWhorter was on the off side of the truck from me and the pumper.” (S.F. 61) * * *
“Q I realize he was on the off side of the truck, but I asked you if he wasn’t the one that suggested that you all get up on top of the truck?
“A No, he wasn’t.
“Q Was he the one that suggested that you all pour it in the hose ?
“A No, he didn’t do that.
“Q It was you or the pumper that decided that, wasn’t it?
“A It was the pumper that decided that.” (S.F. 63) * * *
“Q Now, before you got up there you were one of the people that picked up this barrel to pour it in the bucket, weren’t you?
“A Me and the pumper, he said for me to help pour this in the bucket, and we poured around four gallons of it in the bucket.” (S.F. 64) * * *
Re-direct examination:
“Q Is the pumper the one that decided to pump it through the pump on the truck?
“A That is right.” (S.F. 72) * *
“Q Mr. McWhorter was in charge of the hot oil truck?
“A That is right.
“Q He didn’t tell you to put the paraffin in there, he didn’t make the decision on whether to put it directly in the well or in the pump ?
“A No, the pumper was the one that would tell us.
“Q In other words, Mr. McWhorter was in charge of the job in so far as the hot oil operation was concerned and the pumper was in charge of the hot oil solvent that was to go in the well, is that right?
“A Yes, sir.” (S.F. 79)
Re-cross examination:
“Q There is not any question but that Mr. McWhorter was the one giving the directions out there and giving instructions as to how the work was to be done?
“A Well, I wouldn’t say that, I would say the pumper was out there to do that.” (S.F. 79)
Re-direct examination:
“Q But he (McWhorter) didn’t have anything to do with the well or solvent ?
“A That is right.” (S.F. 81) Re-direct examination:
“Q Did he (Faulkner) mention anything to you other than just request that you help him do the job that he was doing?
A “That is all.
“Q When did your job of treating the well begin? I am talking about Cody & Teague’s job on each particular well, just when did it begin? Did it begin when you got there or did it begin when you were to treat the well with hot oil?
“A I would . say that Cody, & Teague’s part of it would begin when you went to treat the well with hot oil.
“MR. OSBORN: Just a minute, we object to that as calling for a conclusion and opinion on the part of the witness.
“THE COURT: Sustained.
“Q Was the solvent put in the well first or was the hot oil treatment begun first?
“A Well, the solvent was put in the well first.
“Q And then the hot oil treatment?
“A Then the hot oil treatment.
“Q At the time your accident happened had you begun to put the hot, oil into the well?
“A No, we had not.” (S.F. 170, 171)

It is clear from the above reproduced testimony that plaintiff claims his boss had nothing to do with his pouring the solvent in the hose and that he, the plaintiff, was convinced that he was under the orders of the Shell agent, Faulkner; and the jury so found. But the judge held, as a matter of law, that plaintiff was not a loaned servant. As heretofore stated, Issues 7, 8 and 9 answer that the Shell agent directed that the solvent be poured into the pump mechanism.

Summing up this particular portion of the judgment, it seems clear to us that the jury having definitely found that appellant did not fail to warn plaintiff that the solvent was dangerous and highly inflammable, and the judge having found that plaintiff was not under the supervision of Shell, and plaintiff himself having stoutly maintained that he was not at that time under the orders of his own boss, that when he went up on top of the truck it must have been his own idea, and (on the basis of his knowledge that this solvent was inflammable) would certainly strongly suggest contributory negligence. We believe the answers to these issues are so in conflict with themselves, the ruling of the court and the testimony that a judgment cannot be sustained thereupon.

To further complicate this matter, the jury found that plaintiff failed to ascertain if this solvent was flammable (this is confusing because the jury had already answered that appellant did not fail to warn him of that fact); that he failed to • keep a proper lookout; that he failed to heed the warnings on the barrel containing the solvent, and that in each case, although this-was negligence on his part, it was not a proximate cause. The jury then found that his boss failed to warn him, but that such— though negligent — was not a proximate cause. The jury then found that plaintiff’s-boss failed to heed the warnings on the barrel, but that such, though negligent, was-not a proximate cause. The jury further found that McWhorter, contrary to what the plaintiff himself testified, permitted the paraffin to be poured into a hose, and that such was negligent, but not a proximate cause.. The jury then went on, and in answer to Issue 29 found that plaintiff’s, own employer, Cody & Teague, failed to-warn him of the danger in using the solvent, but that such was not negligent (of course, in Issue 10 they found that plaintiff had been warned by Shell Oil Company). From this group of issues it appears that the jury found plaintiff negligent in many respects, but then held that none of these acts of negligence proximately caused the accident. It is difficult to understand how a jury would find that the plaintiff failed-to heed the warnings on the barrel of solvent, and at the same time find definitely that he had been warned of the dangerous qualities of the contents of the barrel.

It is our belief and holding that these issues are so in conflict, not only with each other, but with the testimony of the plaintiff himself, that a judgment cannot properly be sustained. For us to try, here, to sustain the issues we think properly submitted- and sustained by the evidence, and strike out those that were not, would be, in effect, to re-try the case in an appellate court, thereby usurping the proper function and responsibility of the trial court. Even so, we do not think such could be done on the basis of the many existing conflicts.

We do not pass on the court’s finding as a matter of law that appellee was not a loaned servant, with its accompanying result, that, therefore, the doctrine of assumed risk would not apply. We pass only on the conflict caused by the various answers of the jury, the testimony, and the court’s ruling. For these reasons we believe that this case must be reversed and sent back for a new trial to determine the necessary issues.

Appellant’s seventh point, we think, ought to be sustained, in as much as this point complains of the trial court’s failure to submit Special Issue No. 2, which inquired whether the accident resulted from transitory conditions arising out of performance of the work. We think this is fairly evident in that the plaintiff and Faulkner poured the solvent in this container, tried to pump it out, and then, together, got up on top of the truck and poured it into the hose. According to the jury’s findings, at the time of this incident plaintiff knew he was handling a highly inflammable product. We think the case of Texaco, Inc. v. Roscoe (5 Cir., 1961), 290 F.2d 389, illustrates our holding on this matter, wherein the court says:

“In the circumstances of this record the ‘ * * * danger to which * * * (plaintiff) * * * became subjected was a danger which came into being, not from the condition of the premises or the place of work, but from the manner of performance of the job to be done by those who were working together.’ Moore v. Texas Co., 1956, Tex.Civ.App., 299 S.W.2d 401, at page 403, error refused, n. r. e. For, as that case declares the Texas law, the ‘ * * * owner of the premises is under no duty to the employee of an independent contractor to see to it that the work is done safely.’ 299 S.W.2d 401, at page 403.”

See also, Perez v. Hernandez (Tex.Civ.App., n. r. e.), 317 S.W.2d 81, and Moore v. Texas Company (Tex.Civ.App., n. r. e.), 299 S.W.2d 401.

We believe appellant’s ninth and tenth points should also be sustained. It appears that the attorney for plaintiff-appellee, in commenting upon the calling of a Dr. Payne by appellant, said as follows:

“Dr. Payne, who specially examined this man for the insurance company at their own special request, and was called here by them solely, is not this man’s doctor in any way.”

The record further shows that jury argument concluded at about six P.M., and that an hour and half later, during which time the jury had been out to dinner, the court then instructed the jury as follows:

“Ladies and Gentlemen of the Jury:
“You are further instructed that you will not consider for any purpose or discuss in'your deliberations or refer to whether either party is covered by insurance.”

We do not believe that this error, as illustrated by the quoted comment of the attorney, was cured by the judge’s instruction, hut rather falls under the language in Griffith v. Casteel (Tex.Civ.App., n. r. e.), 313 S.W.2d 149, wherein the court states as follows:

“We, therefore, conclude that the comment of appellee’s counsel was of the ‘incurable’ type, and that any curative measures that might have been attempted by either the court or counsel could have served only to accentuate and magnify the prejudicial effect of the statement.”

There are many cases on this point, but we do not believe further citation of authority is necessary in sustaining appellant’s ninth and tenth points.

We also think there is merit in appellant’s eleventh point. With regard to this matter, the attorney for plaintiff stated, “That those things being true, we do not feel that there was any reason, since the treating doctor gave this man a high degree of disability, to turn him * * * ” The same attorney later said: “Do you want to introduce this report of Dr. Johnson in evidence?” The harm here lies in the fact that this statement, of course, was hearsay and based on the doctor’s report which the court had previously instructed the jury not to consider. Hearsay may not always be serious enough to constitute reversible error, but in this case there was a very sharp divergence between the opinions of the doctors, plus the fact that payroll records were introduced to show that although appellee was off work during July following the accident, his earning thereafter — to-wit, during August, September and November— in some cases exceeded the earnings that he had acquired in any month directly prior to the accident. There was evidence that a foreman for another company testified he had not noticed that plaintiff had any limp; and also that plaintiff had signed a written statement with H. B. Zachary & Company in which it was stated: “I had no disability to my leg from being burned.” For these reasons we believe that the reference to a doctor’s report which the court had admonished the jury to ignore, and which was not in evidence, is especially harmful and consequently calculated to cause or produce an improper verdict, and constituted error. We therefore sustain appellant’s eleventh point.

Our holding, therefore, is and must be-that because of the various conflicts and incongruities heretofore illustrated, and because of the errors with reference to insurance and hearsay testimony, this case-must be reversed and remanded to the trial court so that a proper determination of' the necessary issues can be accomplished’ and the errors mentioned eliminated from» any future trial.

The judgment of the trial court is reversed and the case remanded.


author: BATEMAN, Justice.

text:
    JACK R. ALLEN & COMPANY, Appellant, v. WYLER TEXTILES, LTD., Appellee.
    No. 16239.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 18, 1963.

      Matthews, Payne, Sands & Benners, Fred H. Benners, Dallas, for appellant.
    Jackson, Walker, Winstead, Cantwell & Miller, L. P. Bickel and Jack Pew, Jr., Dallas, for appellee.
   BATEMAN, Justice.

The appellant, Jack R. Allen & Company, herein called Allen, appeals from a summary judgment rendered against it in favor of appellee, Wyler Textiles, Ltd., of Hong Kong, herein called Wyler. Allen contracted in writing to sell 500 bales of cotton to Wyler, the contract providing that any disputes arising from the transaction should be referred for arbitration to the Liverpool Cotton Association, whose decision should be final and binding. Only 150 bales were delivered under the contract; Wyler claimed damages for failure to deliver the remaining 350 bales; the dispute was arbitrated according to the contract, the award being in favor of Wyler for the damages claimed. Wyler sued on this award, and Allen entered a counterclaim for damages and also impleaded Farris & Company, herein called Farris, alleged to be liable to indemnify Allen for such damages as Wyler might recover. On motion of Wyler, its suit against Allen and Allen’s counterclaim against it were severed and ordered'to be tried apart from Allen’s cross-claim against Farris, and summary judgment given Wyler for its damages and against Allen on its counterclaim.

By its first two points of error on appeal Allen complains of the order of severance because (1) Wyler’s suit, Allen’s counterclaim against Wyler and cross-claim against Farris are so interwoven and interdependent that the court should be free to consider all of them in adjudicating the final rights of all parties, and (2) the action deprives Allen of the opportunity to prosecute its cross-claim without greatly increased expense. Its cross-claim against Farris alleges that on- the same day the contract between Allen and Wyler was made Allen made a contract with Farris under which the latter agreed to ship the 500 bales of cotton directly to Wyler in fulfillment of Allen’s contract with Wyler; that after shipping the first 150 bales Far-ris asked Allen to obtain an extension of time for shipment of the other 350 bales; that in response to this request and purely as an accommodation to Farris, Allen corresponded with one Chow, in Hong Kong, who was acting as intermediary between Allen and Wyler, and worked out with Chow what appeared to Allen to be a plan resulting in the extension requested by Farris, and reported to Farris that the extension had been obtained; but that if Allen was held liable to Wyler Allen was entitled to recover over against Farris in the same amount.

Rule 41, Vernon’s Texas Rules of Civil Procedure, provides, in part: “Any claim against a party may be severed and proceeded with separately.” This gives the trial court broad discretion in such matters and its action will not be disturbed on appeal except for abuse of that discretion. Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588; Rose v. Baker, 143 Tex. 202, 183 S.W.2d 438. No such abuse is shown here. Wyler was entitled to a trial of its case against Allen without being hindered, embarrassed or delayed by the prosecution of Allen’s cross-claim against Farris, the outcome of which would not affect Wyler’s rights. Pure Oil Co. v. Fowler, 302 S.W.2d 461, err. ref. n. r. e.; Rules 40(b) and 174 (b), Vernon’s Texas R.C.P.

Allen also complains in its brief that it was not given proper notice of the motion to sever, which was filed and sustained on the day of the hearing of the motion for summary judgment. However, this complaint is not embraced in any of the points in appellant’s brief and is therefore not entitled to be considered as a ground for reversal. Wagley v. Fambrough, Tex.Civ.App., 163 S.W.2d 1072, affirmed, 140 Tex. 577, 169 S.W.2d 478. Moreover, appellant fails to demonstrate any harm or prejudice to it by the short notice, or that it excepted to the order of severance, or requested additional time to meet the new issue. Therefore, no reversible error is shown.

Appellant’s third point of error on appeal is that the summary judgment was erroneous because fact issues existed, including whether Chow constituted the real •or apparent agent for Wyler and whether the arbitration award sued on by Wyler was grossly erroneous. No showing was made on the hearing of the motion for summary judgment, by affidavits, depositions or otherwise, to indicate the existence of any such fact issues; and appellant’s brief does not point to anything in the record by which the trial court could have been persuaded to believe or find that any such fact issue existed. In fact, the deposition testimony of appellant’s own president clearly shows that Chow was acting as appellant’s agent; and there is nothing in the record, other than appellant’s pleading, concerning the validity or correctness of the arbitration award. The third point is accordingly overruled.

By its fourth point of error appellant says the court erred in rendering summary judgment against it on. its counterclaim against appellee because appellee did not seek this relief in its motion. We find that in appellee’s supplement to its motion this relief is plainly within the prayer. The fourth point is overruled.

Finding no error therein, we affirm the judgment.

Affirmed.


author: BELL, Chief Justice. COLEMAN, Justice

text:
    Daniel Bruce DUNN, b/n/f A. M. Dunn, Appellant, v. SEARS ROEBUCK AND CO. et al., Appellees.
    No. 14104.
    Court of Civil Appeals of Texas. Houston.
    Sept. 19, 1963.
    Rehearing Denied Nov. 7,1963.

      Hicks, Dollahon & Wohlt, F. Warren Hicks, Houston and Hill, Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, Houston (On Motion for Rehearing), for appellant.
    Henry Giessel, Don Weitinger, Houston, Talbert, Giessel, Cutherell & Barnett, Houston, of counsel, for appellees.
   BELL, Chief Justice.

A. M. Dunn, the father of Daniel Bruce Dunn, brought suit individually and as next friend of his son against Sears Roebuck and Co. and V. L. Martin, to recover damages resulting from injuries sustained by the son when his bicycle and a panel truck belonging to Sears Roebuck and Company and driven by its employee, V. L. Martin, were in collision. The jury acquitted Martin of any act of negligence; found Dunn was not in a position of peril prior to the occurrence in question; found Dunn failed to keep his bicycle under proper control and that this was a proximate cause of the collision; and found damages to be “Zero”. The court rendered judgment for appellees.

The only evidence as to how the injury occurred comes from Mr. Martin. The Dunn boy received a head injury and he apparently did not remember the occurrence. The accident occurred on the afternoon of January 29, 1960 about 2:45 o’clock. The day was clear. The point of contact between the truck and the bicycle was about 75 feet east of the east curb line of Oxford Street on White Oak Drive in Houston. White Oak Drive is a paved street running generally east and west and Oxford Street runs generally north and south. Oxford is a graveled street. At the time of the accident the Dunn boy would have been nine years old on February 11. He had been: riding a bicycle about two years. He rode it to and from his school, which is located about six blocks from his home. According to his father he had become proficient in riding. The bicycle he was riding was a. new one, it having been given him as a Christmas present. It was either a 24 inch or 26 inch bicycle, the evidence not being, clear as to which.

Mr. Martin testified that he was driving east on White Oak Drive and just before reaching Oxford Street he was driving 25-miles an hour. When he was about fifty feet from Oxford he saw the young boy riding north on Oxford about fifteen feet south of White Oak. The boy’s bicycle was wobbling and it looked as if the boy could not ride very well. He took his foot off the accelerator so that at the time of the collision he was going between 20 and 25 miles per hour. The boy turned east on White Oak and was riding in the curb lane. After getting on White Oak the boy was riding all right. From another witness we learn White Oak was 45 feet wide from curb to curb. There was two automobiles parked, one behind the other, at the south curb of White Oak. The first one was about 60: feet east of the east curb of Oxford. Mr. Martin said he watched the boy and angled' his automobile to the left so he was driving in the lane next to the center of White Oak. As he overtook the boy on the bicycle at a point about the middle of the second parked car, he saw the boy opposite the right window of the cab of the truck. The boy threw up his hands and Mr. Martin pulled his truck to the left so that the tires on the left of his truck were about two feet to the left of the center stripe.

The investigating officer testified the point of impact was 18 feet from the south curb of White Oak. He determined this by the rubber mark made by the sideward move of the bicycle tire. Contact was first made with the right rear wheel of the truck and then with the right rear fender at bumper height and the right rear bumper. There was no damage to the bicycle, but the handle bars were twisted and there seemed to be a slight roughing up of the rubber guard on the end of the left side of the handle bar. There were no defects in the pavement. There were no skid marks made by the truck. The width of the car parked at the curb would be about 6 feet. There would be 12 feet between the parked car and the point of impact if the car was parked against the curb. We find no testimony showing how close to the curb the car was. At one place Mr. Martin said there was at least 5 feet between his truck and the parked cars. The width of the truck would be 6 feet. If the truck was driven straight at the time of impact, its left side would be a foot and a half to the left of the center stripe. At one point Mr. Martin testified just before pulling his truck to the left, when he saw the boy throw up his hands, his left wheels were at the center stripe. If this is correct, there would be about 101/⅞ feet between him and the parked cars. There was no indication at all, from an examination of the truck, that there was any contact forward of the rear wheel.

Mr. Martin testified he watched the boy continually after he first saw him because he though the boy could not ride very well. However, he testified he saw no danger of any collision until he saw the boy throw up his hands. He also testified there were no automobiles using the north side of White Oak for a distance of several blocks.

The boy, after the accident, was still astride the bicycle lying in the street with his head pointed toward and about two feet from the center. There was blood on the street but none on the truck or bicycle. The boy admittedly received a severe head injury and the medical expense was substantial.

Appellant, as grounds for reversal, asserts the following:

1.Three jurors concealed from appellant information concerning automobile collisions they or a member of their family had had and deprived appellant of the opportunity to exercise peremptory challenges.

2. The answer of the jury that no damages resulted establishes that the verdict was based on bias and prejudice because the undisputed evidence shows substantial damages.

3. The jury’s answers to Issues 21 and 23 (damage issues) are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong.

4. The jury’s answer to Special Issue No. 1, that the Dunn boy was not in a position of peril, is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and would show the answer was not based on the evidence but was the result of bias and prejudice.

5. There is no evidence to support the jury’s answer to Special Issue No. 6 finding in effect that V. L. Martin did not fail to turn his truck to the left as would a person of ordinary prudence.

6. ' That the answer to said issue is based on insufficient evidence and shows the answer was not based on the evidence but was the result of bias and prejudice.

7. The answer of the jury to Special Issue No. 8 finding Martin did not fail to make proper application of the brakes has no evidence to support it.

8. The answer to such issue is not supported by sufficient evidence and was thus the result of bias and prejudice, and not the evidence in the casa

9. The answer to Special Issue No. 10 finding Martin was not driving at an excessive rate of speed has no support in the evidence.

10. The answer to said issue is not supported by sufficient evidence and shows the answer was the result of bias and prejudice.

11. The answer to Special Issue No. 15, finding the Dunn boy failed to keep his bicycle under proper control, finds no support in the evidence.

12. The answer to said issue is not supported by sufficient evidence.

13. The answer to Special Issue No. 16, finding absence of proper control to be a proximate cause, finds no support in the evidence.

14. The answer to said issue is not supported by sufficient evidence.

Appellant’s first contention is that the trial court erred in not granting a new trial because three jurors concealed information.

Complaint is first made that the juror, H. V. Smith, concealed from counsel the fact that he while riding a bicycle when he was about ten or fifteen years old had an accident. At the time of trial Mr. Smith was 41 years of age. He testified he did not disclose the incident because he thought there was no occasion to do so in reply to the questions asked. The accident was not similar to the one involved in this case. There were no personal injuries involved. He made a turn on his bicycle and an automobile turned to avoid hitting him and “grazed” another automobile. Neither car hit him. He always thought he was responsible. Mr. Smith revealed the incident to Mr. Wohlt, an attorney for appellant, as they were leaving the courthouse.

Mr. Broussard was another juror who allegedly concealed information. He did not disclose that a few months prior to trial his automobile hit a calf that ran in front of him near Weimar, Texas. The calf was injured. He spent some time looking for officers and the owner. He was driving about 40 miles per hour.

The other juror was Mrs. Dorothy Holland. She did not disclose that a few months before trial her husband had a minor accident involving a boy on a bicycle. She testified that when she was selected as a juror she had forgotten about it because it was so minor. Her husband had told her about it but he did not discuss with her who was at fault. She denied that she knew the boy was on a bicycle that was wobbling. Her husband did not hit the boy. No one was hospitalized or given medical treatment.

We must now look to the questions asked on voir dire to determine if they were of such a nature as to call for disclosure.

Mr. Hicks, attorney for appellant, explained to the jury panel the nature of the case, that is, it involved an automobile accident between a panel truck of Sears Roebuck and Co. and a bicycle being ridden by the Dunn boy. After other explanations and questions not here material, Mr. Hicks asked this question of a panel member: “All right now, Mr. Polk, I believe you have no children but either you or your wife ever been involved in an automobile collision ? ” The court then interrupted and asked that the question be asked generally of the whole panel. Mr. Hicks then asked: “Either of you or members of your family involved in an automobile collision ? ” The court then said: “Take the first row.” A juror, Mr. Clark, spoke up and asked: “Involving injuries or not ? ” Mr. Hicks replied: “Involving injuries.” Then Mr. Hicks said: “Second row — any of you folks have injuries in automobile collisions ? How about the third row ? ” Other questions were asked by Mr. Hicks, but they have no relevancy to our inquiry.

Mr. Giessel, attorney for appellees, then commenced his voir dire examination. Generally he stated that before stating what occurred not for the purpose of convincing the panel, but for the purpose of judging the jurors’ background, he was seeking information about their background and business experience so he could judge who was best qualified in this type of litigation. He then stated appellees’ theory of the case. Then Mr. Giessel noted that several jurors had indicated they had been involved in law suits. He then stated he was only interested in those where the jurors were either plaintiff or defendant, where it was claimed somebody got hurt and was seeking money because they got hurt. He then stated all parties were seeking impartial jurors and a fair trial and he wanted to ask another question on which they should reflect. He then asked: “Is your mind— soul committed? Have you by reason of some experience in the past, regardless of what it might have been, been influenced to where your mind is no longer important— psychiatrists tell us no matter what happens in our life time influences you. * * * What I seek to determine and Mr. Hicks seeks to determine, whether somebody here had an accident or a law suit. * * * The fact someone had a child with serious injuries such as this one had, because of some experience in the past-no longer possesses independent judgment? * * * If you know of something in the past to influence your judgment other than what you heard in the court room, please call it to our attention. * * * if you know of something in your background that would make it difficult — the fair thing to do to the parties and most of all to yourselves is to call it to our attention.”

We are of the view that the effect of that portion of the voir dire above set out was to ask if any member of the panel or a member of his or her family had ever had an automobile collision in which personal injury was involved. The narrative by Mr. Giessel and the questions asked by him were only to the effect, in addition to inquiry of accidents or law suits involving injury, that the jurors should disclose anything in their background that would affect their judgment so they could not be a fair juror.

As to Mrs. Holland, there was no concealment because the evidence supports the implied finding of the court that she had forgotten the incident where her husband’s automobile had hit a bicycle. Too, we think the questions asked called for disclosure of automobile collisions involving personal injuries. From the testimony the court could have concluded there was no injury involved.

Mr. Smith had not been in any automobile collision. Twenty-five years before an automobile had swerved to miss his bicycle and had “grazed” another automobile. Too, there were no injuries involved. Mr. Smith had apparently not forgotten the incident but, as he stated, from the questions asked he saw no occasion to disclose the incident. With his conclusion we agree.

Mr. Broussard had a collision with a calf. It appears the calf was injured. No injury to persons is reflected nor was any damage to his automobile shown. If, which we doubt, disclosure was called for by the questions asked, the incident is so minor and so unlike the case before us we can see no possible harm resulting to appellant.

In order for erroneous or false answers given on voir dire to entitle a party to a new trial there must have been concealment by the juror. Childers v. Texas Employers Insurance Association, 154 Tex. 88, 273 S.W.2d 587; Thompson v. Quarles, 279 S.W.2d 321, C.C.A., ref., n. r. e. If the juror has forgotten the incident, there is no concealment. Childers v. Texas Employers Insurance Association, supra. Also, before concealment can be held to be present, the questions asked must be of such a nature as to call for disclosure. Thompson v. Quarles, supra; Tudor v. Tudor, 311 S.W.2d 733, C.C.A., ref. 158 Tex. 559, 314 S.W.2d 793.

Appellant, as specified above, complains that the answers of the jury to certain issues are without evidentiary support. With the exception of the damage issues, which we will specifically notice later on, there is evidence of probative force to support all answers made by the jury.

We have given the substance of all the evidence bearing on how the accident happened. In appraising appellant’s points asserting, as above specified, that the jury’s answers to certain issues are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong, we must consider all of the evidence, both that which supports the answers and that which militates against them. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Even though we, had we been jurors, would have held differently from the jury, we may not substitute our judgment for that of the jury. Before we can set aside jury findings as being insufficiently supported by the evidence the answers must be so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust or clearly wrong. Continental Bus System, Inc. v. Biggers, 322 S.W.2d 1, C.C.A., ref., n. r. e. Appraising the evidence in the light of these applicable rules, we are unable to say the answers of the jury are so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust or clearly wrong.

The jury did answer “Zero” to each damage issue. The undisputed evidence showed substantial damage. However, this does not present reversible error because the jury found on sufficient evidence that the Dunn boy was guilty of an act of contributory negligence which was a proximate cause of the collision and acquitted Martin of any act of negligence. Under such circumstances, even had the jury found substantial damages, the trial court would have been required to enter the judgment it did enter. While such an answer of no damages, when the undisputed evidence shows damages, may be cause for suspicion that the answer was induced by prejudice or improper influence, improper influence or prejudice may not be presumed when the jury’s answers acquitting the defendant of negligence and convicting the plaintiff of contributory negligence finds sufficient support in the evidence. Southern Pine Lumber Co. v. Andrade, 124 S.W. 2d 334, Tex.Com.App.

The judgment of the Trial Court is affirmed.

COLEMAN, Justice

(dissenting).

I respectfully dissent. It is my opinion that the answer made by the jury to Special Issue No. 6 is against the great weight and preponderance of the evidence. I am also of the opinion that the answer of the jury to Special Issue No. 15 is not supported by any evidence. I would reverse the judgment of the Trial Court and remand the case for a new trial.


author: LANGDON, Justice.

text:
    Theril WILLIAMS, Individually and as Next Friend for Kay Williams, Appellants, v. MACATEE, INC., et al., Appellees.
    No. 16456.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 11, 1963.
    Rehearing Denied Nov. 8,1963.

      D. C. Gandy, Fort Worth, for appellants.
    Crumley & Hooper, Frank E. Crumley, R. E. Rouer, and Roswald E. Shrull, Fort Worth, for appellees.
   LANGDON, Justice.

This is a suit for personal injuries arising out of an automobile collision which occurred in Tarrant County on or about December 30, 1960. It was tried before a jury. Verdict was returned September 21, 1962, by which appellants, Theril Williams, was awarded medical expense of $52.50 and his minor daughter, Kay Williams, $500.00 for personal injuries.

This appeal is from a judgment based upon such verdict. Other plaintiffs in the court below did not perfect an appeal.

Judgment of the trial court is affirmed.

By their first three points of error the appellants contend that the amounts found by the jury for medical expense and personal injuries were so grossly inadequate as to indicate that the jury was under the influence of passion, prejudice or gross mistake and that such findings are so against the overwhelming weight and preponderance of the evidence as to be manifestly unfair, unjust and unconscionable and, as a matter of law, inadequate.

For the reasons hereinafter stated the first three points of error are overruled.

The appellants claim that Kay Williams, age thirteen (13) at the time, received a serious injury to her right knee as a result of the collision which occurred about 7 ;00 P.M.

Immediately following the collision on December 30, 1960, Kay was taken to the Northwest Hospital. She received a thorough examination. There was a small abrasion on her right leg about six (6) inches below the knee. It was cleaned and dressed by the hospital attendants. X-rays were taken. She remained at the hospital overnight for observation. On the following morning she was dismissed. Four or five days later she was examined by an orthopedic surgeon. Following his examination the surgeon released her without restraint upon her usual activity.

The record reflects that prior to the collision in question Kay had sustained injury to both of her knees as the result of her activities as a cheerleader and that such injuries required medical care and attention. At the hospital immediately following the collision she made no complaint concerning her knees. In May of 1961 some five months after the collision, at the time her first deposition was taken, she made no complaint of injury to either knee although she was given every opportunity to fully describe the injuries sustained by her as a result of the collision. Soon after her May deposition, Kay began to play softball on her school team and within two weeks of such participation the trouble she had with her knee prior to the collision revisited her. She was required by her doctors to cease her softball activities. Sometime later her right knee locked on her and surgical attention was required.

The surgery involved a condition known as chondromalacia, a softening of the bone under the kneecap which according to the testimony is caused by a direct blow to the kneecap and requires some period of time following the blow to develop. The doctor who performed the operation was of the opinion that the blow to the knee causing this condition which resulted in surgery was received by Kay at the time of the collision. There was abundant testimony from which the jury could have found and believed that Kay injured her knee as the result of the strenuous physical activities in which she participated before and after the collision. The jury was not bound under the the facts of this case to accept the opinion of the surgeon who performed the operation and accordingly rejected it and therefore did not allow the medical and hospital expenses resulting from the surgery.

The record is replete with evidence, including her own testimony, which reflects that Kay actively participated in rather strenuous physical activities in connection with the school program, both before and after the collision in question. Tumbling was one of such activities. Her family physican testified that some three months before the collision that Kay came to him for treatment of her knee, stating that she fell on it while doing a handspring. Examination at that time revealed that both of her legs were edematous. This same family doctor testified from his records that about a month or more before the collision in question he treated Kay’s right knee which she had hurt some three or four days before. At this time the knee was swollen and there was a little atrophy of the quad and pitting edema of both legs.

In her testimony Kay advised that she did not miss any school as a result of the collision and that on returning to school after the collision she engaged in normal routine activities, including physical education and tumbling, and in the spring she came out for softball. This young lady was very forthright and candid. She apparently made an excellent witness.

In the summer of 1960, prior to the collision, she was in attendance at a cheerleader school being conducted at SMU for cheerleaders all over the United States. Each group remained one week. During this time she participated in tumbling four (4) hours each day. During the period of her training at SMU she went down on her knee and it popped and was sore. Her knee was wrapped or taped at the time. The knee involved on this occasion was her left knee and required the services of a physician.

There was additional testimony, medical and otherwise, from which a jury could very readily find that whatever injuries she received to her right knee were the result of her physical activities as a cheerleader and as a softball player in which activities she engaged before and after the collision in question. The adequacy of the $500.00 awarded to her by the jury for the injury below her right knee was amply supported by the evidence. Under the evidence the jury could very readily have found that the injuries received by her as a result of the collision were superficial and thus denied her any recovery for her injuries.

The bill from Northwest Hospital and Clinic was for $47.50 for room, drugs, x-ray, emergency room, dressings and tray, and professional fee at $5 per day. The office call to the Orthopedic Surgeon on January 5, 1961, was $5.00. The total of the doctor and hospital bills was $52.50, the exact amount found by the jury. The verdict of the jury is amply supported by the evidence.

In Henderson v. Smith, Tex.Civ.App., 354 S.W.2d 429, 430 (no writ history), in a similar case the court stated the applicable rule as follows: “The appellate court must consider that evidence, if any, which viewed in its most favorable light supports the jury findings. * * * It was within the jury’s province to judge the credibility of the witnesses and the weight to be given their testimony, and to resolve conflicts and inconsistencies in the testimony of any one witness as well as the testimony of different witnesses. ⅜ * * The jury is not only the judge of the facts and circumstances proven but may siso draw reasonable inferences and deductions from the evidence adduced before it.”

The first three points are overruled.

The appellants by their fourth point of error contend that the appellees’ counsel committed reversible error when he argued to the jury, “Now Mrs. Williams is an interested party. She hopes, with Kay, to enrich themselves, from the verdict in this case. So you and I as sensible people have to measure the value of testimony of a witness who has an interest in a lawsuit.” Counsel for the plaintiff made the following objection: “Your Honor, I want to object to the statement of Mr. Crumley that Mrs. Williams has an interest in this lawsuit and wants to enrich herself. She has no claim in this lawsuit except for medical bills, and that’s for her husband.”

The court instructed the jury that, “ * * * any recovery as far as Kay is concerned would be that of Kay, and not Mrs. Williams.” In our opinion th instruction cured any harm, if any, which may have resulted from the argument.

Mrs. Williams was the mother of the plaintiff, Kay Williams. Under no ircumstances could she be classified as a [«interested witness. It must be presumed rom the evidence that she and her daugh-e very close. She must be classified as an interested witness. It is proper in the summation of a case before the jury to direct their attention to the external conditions and influences that could probably affect the testimony of a witness. Mrs. Williams was a witness in behalf of her daughter. There were facts and circumstances in the record from which appellees could argue bias and prejudice. Counsel for the defendants was entitled to stress the effect of such influences and draw inferences therefrom.

In Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054, our Supreme Court said: “Great latitude is allowed counsel in discussing the facts and issues. Counsel are permitted to show the environments of the case; they may comment upon the bias or interests of the parties and witnesses, and may discuss the reasonableness or unreasonableness of the evidence and its probative effect or lack of probative effect; but such latitude extends only to the facts and issues raised by the evidence in the case.”

If there had been anything prejudicial or inflammatory in the argument, it is presumed that counsel for the plaintiffs would have requested the court to instruct the jury not to consider the argument. He failed to do so. The argument was clearly within the record. The jury knew who the parties were and the relief they were seeking. Those facts were plainly set forth in the pleadings and the charge of the court. They knew she was the mother of the plaintiff, Kay Williams, and the nature of her concern in the outcome of the case was certainly a proper subject for discussion.

The cases cited by counsel for the appellants are not in point. The fourth point of error is overruled.

The fifth point of error is based upon the alleged failure of a juror, who later was selected as foreman of the jury, to reveal on voir dire examination that he had in the past sustained injuries similar to the one alleged by the plaintiff.

At the hearing on the motion for a new trial the counsel for the appellants called one juror as a witness, although all of the jurors were available to him. The juror called as a witness was not asked on direct examination as to whether or not on the voir dire examination he was asked whether or not he had ever sustained any previous bodily injuries. On cross-examination it was developed that he had not been asked about any previous injuries. Counsel for appellees called four jurors at the hearing on the motion for new trial, each of whom testified that they had not been asked about any previous injuries and could not recall a similar question being asked any of the prospective jurors. There was no evidence indicating that there was a discusr sion of any character in the jury room during deliberations with respect to any previous injuries of any juror.

In Childers v. Texas Employers’ Insurance Ass’n, 154 Tex. 88, 273 S.W.2d 587, 588, our Supreme Court said: “The failure of the juror on his voir dire examination to disclose information that he had suffered previous injuries is not the test to be applied in this case, unless the evidence shows that he concealed the fact of previous injury, as alleged in the motion for new trial, and that such action resulted in probable injury to the respondent. Rules 327, 434, and 503, Texas Rules of Civil Procedure. Rule 434 provides that no judgment shall be reversed on appeal and a new trial ordered by the Court of Civil Appeals in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the complaining party as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.

“No probable injury is shown in this record by reason of the fact that Mr. Womack served as a juror in the case. The cases relied upon by the respondent have no application here.”

For the reasons stated m the foregoing case the appellants’ fifth and final point is overruled. We are of the opinion that the cases cited by the appellants do not have any application to the facts of this case.

Judgment is affirmed.


author: DIXON, Chief Justice.

text:
    Dan McKNIGHT, Appellant, v. Otis RENFRO, Appellee and Cross-Appellant.
    No. 16236.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 27, 1963.
    ’ Rehearing Denied Nov. 1,1963.

      Oían R. Van Zandt, Sherman, for appellant.

      Baker & Bryant, Sherman, and Cunningham, Cole & Southerland, Bonham, for ap-pellee.
   DIXON, Chief Justice.

Dan McKnight, a building contractor, brought suit against Otis Renfro and wife, Nellie Renfro, for alleged breach of a written contract whereby McKnight for a consideration of $8,597.00 agreed to build a house within 90 days on property owned by the Renfros.

McKnight pled that he was performing the work in a reasonable and workmanlike manner when the Renfros on February 13, 1960, the 93rd day, contrary to his wishes, took over the construction job, which had progressed 90% toward completion. McKnight further alleged that he was ready, able and willing to continue the work and could have completed the job in about ten days if the Renfros had permitted him to do so. McKnight went to trial on his alternative plea wherein he seeks recovery on a quantum meruit basis for labor and materials he had furnished up to the time the Renfros took over.

The Renfros filed an answer and a cross-action. They alleged that time was of the essence of the contract and that McKnight breached the contract by failing to complete the house within 90 days. As a consequence of such breach, as well as other alleged breaches, they took over the work and finished the house themselves. They seek recovery for the amount by which the cost of the completed house exceeded the contract price of $8,597.00.

The record before us does not include a statement of facts. However, some of the facts are undisputed. McKnight had actually begun work in the construction of the house on November 2, 1959. Subsequently, on November 17, 1959, the parties executed their written contract. The instrument expressly provides that McKnight «will within a period of ninety (90) days from November 12, 1959, build a house” on the Renfros’ property. McKnight did not complete the house within the 90 day period. On February 13, 1960, the Renfros took over the job and thereafter finished the house at their own expense. Prior to taking over the Renfros had made payments to McKnight totalling $6,000.00.

A jury made findings in substance as follows: (1) the reasonable value of the material and services furnished by McKnight was $6,912.00; (2) on February 19, 1960, McKnight presented his claim for materials and services in excess of the $6,000.00 he had been paid; (3) reasonable attorneys’ fees for McKnight are $500.00; (4) McKnight agreed to complete the house within 90 days from November 12, 1959; (5) for a consideration of $8,597.00; (6) the property is the homestead of the Ren-fros; (7) McKnight performed the work he did in substantial compliance with the contract, and (8) in good and workmanlike manner; (9) none of the materials used by McKnight are defective; (11) the Renfros reasonably and necessarily expended the sum of $3,400.00 in order to complete the house; and (12) the reasonable value of shiplap belonging to the Renfros that was used by McKnight was $60.00.

In his written judgment, dated November 2, 1962, the trial court also made findings and conclusions which in substance are as follows: (1) time was of the essence of the contract; (2) McKnight is entitled to the sum of $6,912.00 (the value of materials furnished by him) less the sum of $6,000.00 previously paid by the Renfros, leaving a remainder of $912.00 due to McKnight; (3) the Renfros were entitled to recover from McKnight the sum of $3,-400.00 (the amount they expended in completing the house) less the sum of $2,597.00 (the difference between the $6,000.00 paid to McKnight and the contract price of $8,597.00), leaving a remainder of $803.00, which is the amount by which the cost of the house exceeded the contract price; (4) the Renfros were also entitled to recover $60.00, the value of the shiplap, making a total of $863.00 due the Renfros; (5) the Renfros’ recovery of $863.00 should be set off against McKnight’s recovery of $912.00, leaving a balance due McKnight of $49.00; (6) McKnight is also entitled to attorneys’ fees of $500.00, making a total of $549.00 as the amount of the judgment to which McKnight is entitled.

Both sides filed motions for judgment based on the jury’s verdict. Judgment was rendered in favor of McKnight for $549.00 against Otis Renfro, but not against his wife, Nellie Renfro.

Both McKnight and Otis Renfro have appealed.

McKNIGHT’S APPEAL

McKnight contends that he should have judgment for $1,412.00, being $6,912.00 (the value, as found by the jury, of his part performance) less the $6,000.00 paid to him by the Renfros, plus $500.00 attorneys’ fees.

Since the record before us does not contain a statement of facts, we must base our decisions on the undisputed facts as disclosed by the pleadings and briefs, the findings of the jury and the findings and conclusions of the court insofar as it is permissible for fact findings by the court to be considered in this case.

The sum and substance of McKnight’s contention is that he is entitled to recover for his partial performance on a quantum meruit basis for the work and materials furnished by him even if the total cost of the house after completion exceeded the contract price of $8,597.00. In support of this contention McKnight cites authorities which hold that such a recovery is permissible when full performance by the contractor is excused by reason of the wrongful acts of the owner. Texas Associates v. Joe Bland Construction Co., Tex.Civ.App., 222 S.W.2d 413; 10 Tex.Jur.2d 47-48; 17 C.J.S. Contracts § 112, p. 834.

We have concluded that McKnight is not entitled to recover under the above theory because he has failed to show that full performance by him was prevented by the wrongful conduct of the Renfros. There is no finding by the jury of any wrongful conduct by the Renfros and no showing that submission of pertinent issues was requested. McKnight’s pleadings do allege wrongful acts by the Renfros, but the Renfros plead in denial of McKnight’s allegations. Of course McKnight’s pleadings do not constitute any proof whatsoever. In the absence of a statement of facts we cannot know that there was even any evidence of the alleged wrongful conduct of the Renfros.

McKnight apparently relies on the jury’s answers to Special Issues Nos. 7, 8 and 9 to support his claim. The jury found that (7) McKnight performed the work he did “in substantial compliance with the contract and plans”; (8) he performed the work he did “in a good and workmanlike manner” and (9) “the materials used by Dan McKnight” were not defective.

The three issues and the jury’s answers do not explain why McKnight failed to complete the performance of his contract. Certainly they are not findings of any wrongful conduct on the part of the Ren-fros in taking over and completing the construction of the house.

A good portion of McKnight’s brief is taken up by argument and citations of authorities in an effort to show that time was not of the essence of the contract. We shall postpone our discussion of that question until we consider the appeal of the Renfros later in this opinion.

McKnight’s first three points on appeal allege error because the court sustained three special exceptions leveled at McKnight’s first amended petition. We do not find in the transcript any order or copy of an order sustaining the exceptions, therefore, we cannot consider McKnight’s first three points. George v. Senter, Tex.Civ.App., 194 S.W.2d 290; Garcia v. Tubbs, Tex.Civ.App., 300 S.W.2d 736; 3 Tex.Jur.2d 645; Rules 376, Texas Rules of Civil Procedure.

McKnight’s fourth point attacks the submission of Special Issue No. 4, which inquired whether McKnight agreed to complete the house within 90 days from November 12, 1959. The grounds of McKnight’s objections were that the Renfros’ pleadings and all the evidence show conclusively that the Renfros did not give McKnight an opportunity to complete the house, but themselves breached the contract by not giving him an opportunity to do so. The Renfros’ pleadings certainly cannot be construed as admissions of any wrongdoing on their part. And in the absence of a statement of facts we cannot consider McKnight’s objections that there was no evidence to support submission of the issue. 3 Tex.Jur.2d 699. On the contrary we must assume that there was evidence. 3 Tex. Jur.2d 703. We shall further discuss Special Issue No. 4 when we come to consideration of the Renfros’ appeal.

In his fifth point McKnight says that the court erred in finding as a fact in its judgment that time was of the essence of the contract. This raises the question whether the court could properly make such a fact finding since this was a trial before a jury. This question will be discussed and decided when we reach the Renfros’ appeal later in this opinion.

McKnight’s points on appeal numbered. 6 through 11 in substance are that the court erred (6) in setting aside on its own motion its first judgment rendered May 25, 1962; (7) in overruling McKnight’s motion for judgment on the verdict; (8) in entering its judgment dated November 2, 1962, contrary to the law and the findings of the jury; (9) in finding as a fact that the Renfros were entitled to recover $803.00, which was the amount by which the cost of the house exceeded the agreed consideration of $8,597.00; (10) in submitting Special Issues Nos. 4 through 11; (11) in finding that the Renfros were entitled to recover $60.00 for shiplap which they furnished to McKnight and was used in the house.

We overrule all of McKnight’s points numbered six through eleven. As to point No. 6, the records shows that the court set aside its first judgment on May 29, 1962, four days after it had been signed. This the court had a right to do. 33 Tex. Jur.2d 657; 687. Our reasons for overruling Point No. 7 will be discussed later in connection with the Renfros’ appeal. Points Nos. 8 and 10 are too general to be entitled to our consideration. Novita Oil Co. v. Smith, Tex.Civ.App., 247 S.W.2d 151; Hudspeth v. Hudspeth, Tex.Civ.App., 206 S.W.2d 863. Point No. 9 refers to a conclusion of law, not a finding of fact, and a correct conclusion, as we shall point out in our discussion of the Renfros’ appeal. Point No. 11 has no merit because it is undisputed that the Renfros, prior to their taking over the job, furnished the shiplap to McKnight and the jury found its value.

In his twelfth and thirteenth points McKnight complains of (12) the overruling of his exception to the Renfros’ pleading of homestead and (13) the submission of Special No. 6 and the jury’s answer thereto to the effect that the property was the homestead of the Renfros.

We agree with McKnight that the pleading and the jury’s answer to the special issue are immaterial. McKnight was not attempting to assert or foreclose a lien on the property. In any event no harm was done, for we have concluded that for reasons heretofore given, McKnight is not entitled to a personal judgment against the Renfros, and in fact was not awarded a judgment against Nellie Renfro.

OTIS RENFRO’S APPEAL

Renfro contends that judgment should have been rendered in his favor for $863.00. Of the above figure $803.00 represents the amount by which the total cost of the completed house exceeded the contract price of $8,597.00. The $60.00 represents the value of shiplap furnished to McKnight and used in the house.

Renfro has briefed thirteen points of error, the substance of which, as we gather from the points and the arguments thereunder, may be summarized as follows: (1) time was of the essence of the contract, as found by the jury and the court; (2) McKnight breached his contract by failing to complete performance within 90 days; (3) therefore, the Renfros were justified in taking over the job and completing the house and their act in doing so did not constitute wrongful conduct; (4) the court applied the wrong measure of damages; the correct measure of damages allows the Ren-fros to recover judgment against McKnight for the amount tire total cost of the house exceeded the contract price of $8,597.00.

Was time of the essence of this written contract? We agree with McKnight that ordinarily time is not of the essence of a contract. Chapman v. Levy & Levy, Tex.Civ.App., 193 S.W. 1101; Caprito v. Grisham-Hunter Corporation, Tex.Civ.App., 128 S.W.2d 149; 13 Tex.Jur.2d 526; 17A C.J.S. Contracts § 504(1), p. 789; 6 Williston on Contracts, 3rd Ed. Sec. 849, page 198; 3A Corbin on Contracts, Sec. 720, Page 377. But the intention of the parties may make it so. Edwards v. Atkinson, 14 Tex. 373; Henderson v. San Antonio & M. G. R. Co., 17 Tex. 560; Langley v. Norris, Tex.Civ.App., 167 S.W.2d 603; 13 Tex.Jur.2d 525. When the written in strument itself is not clear as to whether it was intended that time should be of the essence surrounding circumstances may be taken into consideration in determining the question. Kenedy Town & Imp. Co. v. First National Bank of Victoria, Tex.Civ.App., 136 S.W. 558; Gaut v. Dunlap, Tex.Civ. App., 188 S.W. 1020; Investors’ Utility Corp v. Challacombe, Tex.Civ.App., 39 S.W.2d 175; Texas Associates, Inc. v. Joe Bland, Tex.Civ.App., 222 S.W.2d 413; 10 Tex.Jur.2d 29. When time is of the essence of a contract performance by a party at or within the time specified is essential to his right to require performance by the other party. Dayvault & Newsome v. Townsend, Tex.Civ.App., 244 S.W. 1108; Burks v. Neutzler, Tex.Com.App., 2 S.W.2d 416; 13 Tex.Jur.2d, 524, 525.

When the owner, upon failure of the contractor to perform takes over the job and completes the work himself, he may recover from the contractor the excess of the reasonable and necessary cost of completion over and above the unpaid portion] of the contract price. Hillyard v. Crabtree, 11 Tex. 264; Gonzales College v. McHugh, 21 Tex. 257; American Surety Co. of N. Y. v. Lyons, 44 Tex.Civ.App. 150, 97 S.W. 1080; Franks v. Harkness, Tex.Civ.App., 117 S.W. 913; Da Moth & Rose v. Hillsboro Ind. School District, Tex.Civ.App., 186 S.W. 437; American Surety Co. v. Gonzales Water Power Co., Tex.Civ.App., 211 S.W. 251; Standard Accident Ins. Co. of Detroit, Mich. v. Laird, Tex.Civ.App., 81 S.W.2d 271; Ruberoid Co. v. Scott, Tex.Civ.App., 249 S.W.2d 256; 10 Tex.Jur.2d 69.

The Renfros pled that time was of the essence of their contract. They say that the case was tried on that issue, among others, and that the contract itself, the finding of the jury in answer to Special Issue No. 4, and the separate finding of the court are all to the effect that time was of the essence of the contract.

Special Issue No. 4 and the jury’s answer thereto are as follows: “Do you find from a preponderance of the evidence that Dan McKnight agreed to complete the house in question within 90 days from November 12,, 1959?

Answer: Yes.”

In connection with the issue the court instructed the jury that the issue referred to “90 calendar days”.

Renfro says that the above answer constitutes a finding by the jury that time was of the essence of the contract and that the issue was submitted with that question in mind. McKnight seems to acquiesce in that view. This is shown by McKnight’s fourth point on appeal, heretofore considered, which, quoted in full, is as follows: “The court erred in submitting Special Issue No. 4 to the jury over plaintiff’s objection thereto, which permitted the jury in effect to find that time was of the essence of the contract” (emphasis ours). However, in his argument under the point McKnight takes a position inconsistent with the above emphasized statement in his own point on appeal.

Special Issue No. 4 as worded is at best a defective submission of the question whether time was of the essence of the contract. However, since both parties apparently accepted the view that it does submit the question, we are inclined to give the issue the same interpretation given to it by the parties.

The court apparently sought to remedy any doubt there may have been about the meaning of the issue. In its written judgment the court made this very plain and explicit finding: “That time was of the essence of the contract entered into by the parties and dated November 17, 1959’\

Ordinarily in a jury trial the judge may not make findings as to disputed facts. That is the function of the jury. But our Supreme Court has held that where one of a series of related factual questions making up an ultimate issue has not been submitted, or requested; or where there has been a defective submission without objection, or no objection has been made to the court’s failure to submit the issue, the judge may remedy the deficiency by making such a finding on the issue as he finds the fact to be. Wichita Falls & Okl. Ry. Co. et al. v. Pepper, 134 Tex. 360, 135 S.W.2d 79; Cochran v. Wool Growers Central Storage Co, 140 Tex. 184, 166 S.W.2d 904; Rodriguez v. Higginbotham-Bailey-Logan Co, Tex.Civ.App, 172 S.W.2d 991. That we believe is the situation which presents itself here.

It is true that McKnight objected to the submission of the issue. But as we pointed out in our consideration of McKnight’s fourth point on appeal, the grounds of his objections were not such as permitted us to consider his objections. He made no objection whatever to the form of the issue as submitted.

It was not necessary to submit the issue as worded. The written contract expressly provided that the house should be completed within 90 days from November 12, 1959. But the related question which did require an answer is whether such time requirement was of the essence of the contract. If Special Issue No. 4 was not a submission of the latter question despite its acceptance as such by both parties, the trial judge was authorized to supply the deficiency by finding that time was of the essence of the contract. In the absence of a statement of facts we must assume that there was evidence to support the court’s finding. 3 Tex.Jur. 702-703.

We hold that in view of the finding that time was of the essence of the contract, McKnight breached the contract by failing to complete the house within 90 days. The Renfros had a right to take over the job and finish the house. The jury found that the reasonable and necessary cost of completing the house was $3,400.00. The Renfros had already paid McKnight $6,-000.00, so the house cost them $9,400.00. This was $803.00 in excess of the contract price of 8,597.00. Therefore Renfro is entitled to recover $803.00.

He is also entitled to recover for the ship-lap which he furnished McKnight and which the jury found to have a value of $60.00.

Renfro is therefore entitled to judgment for $803.00 plus $60.00, a total of $863.00 principal.

McKnight’s points on appeal are overruled. Renfro’s points on appeal are sustained.

The judgment of the trial court is reversed and judgment is here rendered that McKnight take nothing hy his suit and that Renfro have judgment against McKnight for the sum of $863.00.

Reversed and rendered.