author: FRASER, Chief Justice.

text:
    B. J. BARNHILL et al., Appellants, v. The STANDARD INSURANCE COMPANY, Appellee.
    No. 5639.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 30, 1964.
    Rehearing Denied Jan. 27, 1965.
    W. R. Barnes, Odessa, Snodgrass, Smith, Rose & Finley, Kerr, Gayer, Ray & Lyons, San Angelo, for appellants.
    Shafer, Gilliland, Davis, Bunton & Mc-Collum, James M. O’Leary, Odessa, for appellee.
   FRASER, Chief Justice.

Our former opinion in this case is withdrawn, and the following opinion substituted therefor:

OPINION

This is a controversy regarding the construction of an insurance policy described by the parties as being an M & C liability policy, purporting to insure the payment of obligations of appellant Barnhill involving his operations as a truckman, or trucker, who owned his own truck and had been doing occasional work, described as hauling, for one of the parties, to-wit, M & B, for more than a year. Appellee Standard Insurance Company had written two insurance policies for the insured, one described as an automobile policy, and the other being the above-mentioned M & C liability policy.

The record relates that Cities Service Oil Company owned an oil well in Schleicher County, Texas which they desired to clean out and make into a disposal well. For this purpose they hired Pool Well Servicing Company, Inc. Cities Service also hired a company known as M & B to furnish the fishing service which was required in order to remove certain objects from the well. M & B, in turn, hired Barnhill, the trucker, to pick up and deliver to the well site certain equipment and fishing tools, and this Barn-hill did. Barnhill met a Mr. Simpson, an employee of M & B, at Big Lake, Texas and followed him to the lease or well site. After Mr. Barnhill had unloaded the tools under the direction of Mr. Simpson (described as M & B’s fisherman), in which endeavor he was assisted by the rig crew, he prepared to return to his home in Odessa, which appears to be the only office or premises of any kind that he owned, operated or used for his business purposes. As he was maneuvering his truck to leave the well site, a part of his truck caught on a guy wire attached to the derrick, and the derrick and pipe stacked therein all fell over. It does not seem to be disputed that the action of Barnhill’s truck in catching the guy wire of the derrick caused the derrick and stacks of pipe therein to fall to the ground and be damaged. Pool recovered judgment in Schleicher County for $27,500.00 against Barnhill, but recovered nothing against the M & B Company, which he had also sued as a defendant.

Appellee Standard Insurance Company paid off the automobile policy of $10,000.00, but declined payment of any amount under the M & C policy of liability. This was a suit for declaratory judgment filed by ap-pellee Standard Insurance Company against Barnhill and Pool asking the court to interpret the M & C insurance contract. M & B Fishing Tool Company intervened in the suit. Standard, M & B and Barnhill filed motions for summary judgments. Upon motion made and heard, the trial court issued an order of severance eliminating the M & B Company and the cross-action of Mr. Barnhill from this lawsuit, and designated or placed them in the category of a separate lawsuit, leaving the lawsuit with which we are here concerned described as No. B-19,-739, and the new lawsuit, involving M & B and Barnhill’s cross-action, described as No. B-22,549.

It appears generally agreed between the parties that we are here concerned with the construction and application of a clause or paragraph of the M & C liability contract, sometimes described as an exclusionary clause. The policy states as follows:

“EXCLUSIONS:
“This policy does not apply:
“(a) under division 1 of the Definition of Hazards, and under coverage Cr to the ownership, maintenance, operation, use, loading or unloading of (1) watercraft if the accident occurs away from premises owned by, rented to or controlled by the named insured, except insofar as this part of this exclusion is stated in the declarations to be inapplicable, (2) automobiles if the accident occurs away from such premises or the ways immediately adjoining, or (3) aircraft; * *

It is argued by the appellants that Barnhill was in control of or exercising control of the premises at the time his truck caught the guy wire and pulled the derrick and pipe down. If this is true, then — argue the appellants — the exclusionary clause above set forth does not apply, and appellee is liable under its M & C liability policy; and so we come to the question then clearly set forth: Was Barnhill in control, or exercising control, of the premises to any degree sufficient to satisfy the terms of the policy under which he was insured by Standard Insurance Company?

As stated in appellants’ brief, all parties filed for declaratory judgments and for summary judgments as well. The court granted the motion of Standard Insurance Company for such summary judgment to exclude the accident from coverage under the M & C policy; and it is from this action of the trial court that this appeal has been taken.

Appellants have brought up three points; first, that the premises where the rig was wrecked were “controlled” by appellant Barnhill within the meaning of the M & C liability policy; second, that the “premises” covered by the M & C liability policy included the job sites in Texas on which appellant Barnhill made deliveries in the operation of 'his truck. Appellants state the automobile exclusion applied to other coverage only. Appellants’ third point is that M & B was entitled to be a party to and participate in the case before us, even though the trial court had severed M & B and set its action up as a separate lawsuit.

We believe the action of the trial court was correct. Both parties refer to and rely upon American Fidelity & Casualty Co. v. Traders & General Ins. Co., 160 Tex. 554, 334 S.W.2d 772, decided by our Supreme Court in December of 1959 and reconsidered, and a motion for rehearing denied, in March of 1960. In this case it is stated that appellee denied liability under an M & C policy on account of provisions, among others, reading as follows:

“'(This policy does not apply:) under Coverages B and D, except with respect to operations performed by independent contractors, to watercraft while away from premises owned, rented, or controlled by the Named Insured, automobiles while away from such premises or the ways immediately adjoining * *.’ ”

This, in effect, is similar to the so-called exclusionary provisions of the case before us. The Supreme Court in the cited case was considerably concerned with the question of control, and states that it found no case which it regarded as being directly in point, but did mention others that the court felt supported its opinion or conclusion. In such case it is significant to note that the insured, known as the Mizell Truck Lines, was being operated at the time by one Roy Mizell, one of the brothers comprising the company. They had two trucks at the well site, and their task was to move and stack various component parts of the superstructures of the rig to new locations. The Supreme Court states: “All of the activities other than the mechanical dismantling of the rig itself were under the direction of Roy Mi-zell. He determined how the trucks were to be used, where the components of the rig were to be stacked, and supervised both the loading and the unloading of the trucks.” The Court then states that it considers this to be sufficient to establish “control” under the terms of the insurance policy. The Court went on to say:

“While the question is not free from doubt, we have concluded that Mizell was in control of the premises where the accident occurred. Black’s Law Dictionary (4th Ed., 1951) defines ‘control’ as ‘Power or authority to manage, direct, govern, administer, or oversee.’ In State v. Camper, Tex.Civ.App., 261 S.W.2d 465, 468, it is stated that ‘control’ is ‘synonymous with management.’ ”

In the American Fidelity & Casualty Co. case it is clear that Mizell, according to the Court’s opinion, was really directing and controlling the operation with the exception of the activity described as the mechanical dismantling of the rig itself.

We do not have that situation in the case before us. Pool was hired by Cities Service to process the well. Cities Service required certain tools and services owned by or in the possession of the M & B Company. This company hired Barnhill to pick them up and deliver them to the well site. This was done by Barnhill, and it was only when he was leaving that the accident occurred. We do not find sufficient evidence here to indicate that Barnhill exercised control, other than as to who drove his truck. He apparently was instructed where to go and was assisted and directed in the unloading of the material on his truck. It is not apparent that he gave any orders to anyone regarding the main operation, which was to fish certain equipment out of the well and process or repair it according to the wishes of Cities Service. In óur opinion Barnhill occupied no greater status than that of an independent contractor delivering material to a well site. Other than that he had no interest in, or control over, the operation. Presumably had he found a dangerous condition he could have declined to proceed, or discussed where he was to place his truck, or how he was to leave; but these things apparently did not happen, and in our opinion the key word here with reference to control, as in the American Fidelity case, is the word “premises”. Barnhill may have had control of his truck, because he did own it, but beyond that there is an insufficiency of any evidence to show that he had, or exercised, any control over the operation in progress, or premises. He was simply hired to haul material and deliver it, which he did. Standard paid off the automobile policy and denied liability under the M & C policy, and we think the trial court was correct in sustaining the position of appellee with reference to the M & C policy. The provisions of the policy before us and the one before the Supreme Court in the case cited above are similar, but we do not believe that the facts here are similar or are sufficient to create a picture of “control”. On the basis of the record as we read it, it is very doubtful that the employees of Pool or M & B would have obeyed or accepted any orders from Barn-hill other than as to the unloading of his truck. The truck had been unloaded when the accident happened, and Barnhill was certainly on his own and starting home when he caught the guy wire with his truck. Again we repeat that we are dealing with the matter of control of premises or operation, while the record shows only that if Barnhill was in control of anything, it could have been nothing more than his truck. The record shows that the fisherman was supposed to supervise the manner and method of using the fishing tool, and that Pool was hired to direct, supervise and complete the processing of the well after the fishing was completed. So Barnhill’s sole function was to drive out to the well site, unload the equipment, and come home.

We believe, therefore, and so hold, that the American Fidelity case, supra, controls and defines the matter before us in its description of the action and definition of what the word “control” means. There are other cases that have passed on the matter as, for example, in Southwestern Indemnity Co. v. National Surety Corp., 277 F.2d 545 (5th Cir.1960), which was a Texas case. The contract involved there provided that the insured, who was repairing a highway, was responsible for preservation of all material or installations, and was to provide suitable drainage and maintain the roadway in good and passable condition until final acceptance. This responsibility naturally called for and required control of the operation and premises involved. This lawsuit involved an accident between an automobile and a vehicle belonging to the insured, which was parked on the highway. This contract also stated that until acceptance of the work it would be under the charge and care of the contractor. The contract involved had substantially the same exclusionary clause as we are dealing with in this matter, and the court held that the insured had “control” of the premises. Other cases that are useful and informative are: Pacific Employers Ins. Co. v. Hartford Accident & Ind. Co., 228 F.2d 365 (9th Cir. 1955) ; Sam Finley, Inc. v. Standard Accident Ins. Co., 41 Tenn.App. 417, 295 S.W.2d 819 (1956). There are many other cases dealing with this matter which we do not cite, and our examination of them and the reasoning of the various courts involved, along with that of our own Supreme Court, convinces us that Barnhill had no control over the premises where the accident happened, and that the exclusionary clause, therefore, was applicable.

Appellee has submitted a motion asking that this court dismiss the appeal of M & B Fishing Tool Co., Inc. (referred to as M & B) because the act of the trial court in severing M & B from the matter on appeal before us left M & B with nothing to present to this court in the case presently before us. This is evident from the fact that after the action of severance by the trial court, M & B and Barnhill’s cross-action were given a new number, to-wit, B-22549. There has been no judgment of any kind, so far as we know, in that case, and M & B, having no final judgment rendered against it, could not properly be before us. Further, M & B did not, according to the record, make any exception to the order of severance, and the record indicates that such order of severance was the result of an “agreement of the parties”. Therefore, without any exception or objection to the severance, M & B has no complaint here in this case; and the other case, to which it was relegated by the severance, is not on appeal at this time. Appel-lee’s motion to dismiss the appeal of M & B in this case is granted.

Appellee has submitted another motion to dismiss the entire appeal and affirm on certificate on the basis that, in appellee’s opinion, Pool and Barnhill have not perfected an appeal to this court due to failure to file a transcript within the proper time. Without going into the various features and arguments, we hold that in our opinion the appeal, as such, was substantially perfected, and this motion of appellee is overruled. The motion and arguments thereon are pretty much based on who applied for the transcript and the numbers thereon, etc.; but the record we have before us arrived within the legal time limit and, we think, substantially meets the requirements relating to appeals to this court.

Appellants’ Points 1 and 2, and Point 3, are therefore all overruled, and the judgment of the trial is accordingly affirmed.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    POLK TERRACE, INC., et al., Appellants, v. Nelson Ray HARPER, Appellee.
    No. 99.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 21, 1965.
    Rehearing Denied Feb. 11, 1965.

      Jack D. Eades, Lefkowitz, Green, Ginsberg, Eades & Gilmore, Dallas, for appellants.
    Donald W. Cantwell and J. Keith Marks, Dallas, for appellee.
   MOORE, Justice.

This suit was brought by Nelson Ray Harper against appellants, Polk Terrace, Inc. and General Housing Company of Texas to recover damages for fraud under the provisions of Article 4004, Vernon’s Ann.Tex.St. based upon alleged fraudulent misrepresentation inducing him to purchase a dwelling house. Appellee alleged that prior to his purchase of the house appellants’ agent, George R. Rieger, represented to him that the house complied with the requirements of the Veterans Administration Housing Program; that such statements were later found to be false because after having trouble with the foundation he employed a concrete testing firm to test the strength of the concrete and it was determined that the compressive strength of the concrete was only 586 pounds per square inch, whereas the minimum requirements of the Veterans Administration was 2000 pounds per square inch. Appellee alleges that by reason of such false representation he was induced to purchase the house at the agreed price of $10,350.00 whereby he had been damaged in the sum of $7,000.00 for which he prayed. Appellee also prayed for exemplary damages but the claim was eliminated from the case. Appellants, in addition to a general denial, filed an unsworn special denial of agency and alternatively denied the authority of Rieger to make such representations and affirmatively set up the two year statute of limitation.

The jury in response to the special issues found substantially as follows: (1) that Polk Terrace, Inc. and/or General Housing Company represented that the house complied with the Veterans Administration Program requirements; (2) that such representation was false; (3) was made for the purpose of inducing Harper to purchase the house; (4) was material; (5) was relied upon by Harper; (6) that Harper would not have purchased the house had such representations not been made; (7) Harper was not in possession of such information as would have put an ordinarily prudent person on notice that the foundation did not comply with the Veterans Administration Program requirements prior to November 16, 1960 (two years before he filed suit) and (8) the reasonable market value of the house and lot, in its condition on the date of purchase, was $3,350.00.

After overruling appellants’ motion for judgment notwithstanding the verdict, the court rendered judgment against the appellants in the amount of $7,000.00. Appellants’ motion for a new trial was also overruled, after which they perfected this appeal.

Both appellant corporations were shown to be engaged in the business of constructing and selling dwelling houses. All advertising and sales promotion for both corporations, however, was handled by General Housing Company. S. R. Franck was the president and R. M. Phillips, Jr. was vice-president of both corporations and it is alleged that both corporations operated at the same office address in Dallas, Texas.

On November 7, 1955, appellee, having seen newspaper ads and signs offering “V. A.” and “F.H.A.” houses for sale by appellant General Housing Company, went to the field office of General Housing Company where he met George R. Rieger, the company’s sales manager. After some discussion with Rieger with regard to the houses, Harper and his wife selected a house which was then under construction. It was during this discussion that Rieger is alleged to have represented to them that the house was constructed in compliance with the requirements of the Veterans Administration Program. After agreeing upon the price and other terms of the sale, Rieger prepared a contract of sale and receipt of earnest money contract. The contract showed “Polk Terrace, Inc.” acting as its duly authorized agent to be the seller and Harper to be the buyer. Harper signed the contract. “Polk Terrace, Inc.” was typewritten at the place designated for the signature of the seller and George R. Rieger signed immediately below. Beneath his signature was the printed word “seller.”

On January 6th, 1956, Polk Terrace, Inc.,, acting by and through its president, S. R. Franck, conveyed the house and lot to ap-pellee Nelson Ray Harper and wife, Billie Harper, reciting a consideration of $10,350.-00.

Appellee Harper testified that within about two weeks after he moved in the house in January, 1956, he observed some cracks in the garage wall and in the winter of 1956 became suspicious of his foundation being weak. In 1957 he observed some of his-doors sticking and in 1959 he made a complaint to the appellants about the foundation and the concrete curb of the beam. As a result, appellants poured some topping on the curb. In 1960 two humps developed in the kitchen floor and the blocks of floor covering broke loose, and his children lifted them up and had an “inside sand pile.” In early November, 1960, he called Pittsburgh Testing Laboratories and asked them to make a test of the concrete foundation. On November 16, 1960, the company drilled a core for the purpose of testing the compressive strength of the concrete and on November 24th or 25th of 1960, they reported that their tests showed that the compressive strength was only 586 pounds per square inch. Thereafter, he contacted Mr. Stiles of the Veterans Administration and upon being advised that the minimum requirement as to compressive strength of the concrete was 2000 pounds per square inch, he and Stiles contacted R. M. Phillips, Jr. of General Housing, who thereafter made certain repairs at the places where the concrete was broken. On November 16, 1962, almost two years after the tests were made on the foundation, appellee filed this suit

Appellants’ first point of error contends that the trial court was in error in overruling this motion for judgment notwithstanding the verdict and failing to grant judgment in their favor because the undisputed evidence showed as a matter of law that appellee, more than two years prior to the institution of this suit, had knowledge of such facts that would have caused a reasonably prudent person to make inquiry which would have led to the discovery of the fraud; therefore, appellee’s claim was barred by the two year statute of limitation.

The issue of actionable fraud was sufficiently raised by the pleadings and the evidence, and the jury found that appellee Harper did not have such information as would have put an ordinarily prudent person on notice of the fact that the concrete foundation did not comply with the compressive strength requirements of the Veterans Administration Housing Program prior to November 16, 1960. This suit was filed within two years from that date.

It is the well-settled rule in this state that fraud prevents the running of the statute of limitation until it is discovered. Port Arthur Rice Mill Co. v. Beaumont Rice Mills, 105 Tex. 514, 143 S.W. 926, 929; Sherman v. Sipper, 137 Tex, 85, 152 S.W.2d 319, 137 A.L.R. 263, 37 Tex. Jur.2d, para. 70.

Knowledge of the facts that would cause a reasonably prudent person to make inquiry which if pursued would lead to a discovery of fraud is in law equivalent to knowledge of the fraud. Glenn v. Steele, 141 Tex. 565, 61 S.W.2d 810; Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876.

Appellants contend that the evidence in this case shows as a matter of law that appellee was in possession of facts which would have caused a reasonably prudent person to make inquiry as to the cause of the breaking of the concrete foundation, which if pursued with due diligence would have led him to discover the fraud more than two years before filing suit. Appellants cite as authority the cases of Carver v. Moore, (Tex.Com.App.) 288 S.W. 156; Sherman v. Sipper, supra; Wise v. Anderson, supra, and White v. Bond, Tex., 362 S.W.2d 295. We believe the facts in those cases to be distinguishable from the facts presented here. In those cases the facts that put the plaintiff on inquiry were not concealed. The testimony here shows that Harper was a sheet metal worker and a welder. He testified that he was not familiar with construction and had never had any experience dealing with concrete. Although he no doubt concluded that something was wrong with the foundation, he was not in possession of “facts” sufficient to constitute constructed notice that the lack of compressive strength of the concrete was the cause. The compressive strength of concrete is not such a matter as would be readily ascertainable by an ordinary layman. Knowledge of a break in the foundation would not be conclusive proof of lack of compressive strength. There could have been other causes, such as improper support as well as stress caused by the weight of the house. The jury found that he was not in possession of facts sufficient to put an ordinarily prudent person on notice that the foundation did not comply with the compressive strength requirements of the Veterans Housing Program prior to the time he had same tested by a testing laboratory.

Ordinarily, what constitutes reasonable diligence to discover fraud is a question of fact for the jury. What will constitute reasonable diligence to discover fraud and when the fraud might have been discovered by the exercise of such diligence are necessarily questions which must be determined from all the facts and circumstances in evidence in each particular case. When, under the facts in evidence, reasonable minds might differ on such issues, the findings of the jury thereon are binding on the appellate court. Ray v. Barrington, (Tex.Civ.App.) 297 S.W. 781; Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738. Appellants’ first point is overruled.

In appellants’ second point it is contended that as a matter of law there was no proof of agency nor proof of the authority of the alleged agent to make representation to the respect of the quality of the house.

It is undisputed that Polk Terrace, Inc. employed General Housing Company as their agent for the purpose of advertising and selling the houses constructed by it. It was conclusively shown that the advertising and brochures published by General Housing Company contained statements to the effect that all of the houses were constructed in accordance with “V.A.” and “F.H.A.” requirements. It was further shown that General Housing was not in the real estate-brokerage business, nor was their sales manager, George R. Rieger, a licensed real estate agent. Rieger was employed and paid a salary and drew no commission on the sale of the houses. He testified that although he was employed by General Housing his immediate superior was Mr. Franck, president of Polk Terrace, Inc., and that he took his instructions from both Mr. Franck and Mr. Dolf, who he described as Mr. Franck’s right-hand man. Mr. Dolf instructed him on how to prepare the contract. It was conclusively shown that after the contract was prepared, Mr. Franck accepted the same and as president of Polk Terrace, Inc. executed the deed to Harper. R. M. Phillips, Jr., vice-president of both of the appellant corporations, was the only witness to testify in behalf of appellants. Nowhere in his testimony does he deny that Rieger was not an agent of either corporation, nor did he deny that Rieger did not have authority to represent to Harper that the house complied with the minimum standards of the Veterans Administration Housing Program.

In our view the evidence is sufficient to show that Rieger was the duly authorized agent of Polk Terrace, Inc. and was acting in the scope of his actual and apparent authority not only in the execution of the contract, but also in assuring Harper that the house was constructed in compliance with the Veterans Administration requirements. Polk Terrace, Inc. clothed Rieger with the indicia of authority which would lead a prudent person to believe that he had authority to make statements as to the quality of the house.

The question of whether an agency relation exists between an alleged principal and agent is a question of law that must be determined solely by the trial court, in light of the relations of the parties under the agreement between them or in view of their acts and conduct. More specifically, it is the function of the trial court alone to determine whether, under an ascertained state of facts, a legally valid agency relation exists between the parties. The province of the jury in this connection is to determine only whether or not certain facts exist — not whether, if such facts do exist, they are legally sufficient to constitute the alleged agency. MinneapolisMoline Co. v. Purser, (Tex.Civ.App.) 361 S.W.2d 239, 241; 2 Tex.Jur.2d 694.

Neither party requested any issues relating to the question of agency nor were any issues requested relating to the question of scope of authority of the alleged agent. Appellants did not object to the failure of the court to submit such issues.

Under such circumstances, the trial court decided these issues in accordance with the evidence and in support of its judgment because the determination thereof by the jury was waived. Rule 279, Texas Rules of Civil Procedure; Blackburn v. Sanders, (Tex.Civ.App.) 278 S.W.2d 924; J & M Construction Company v. White, (Tex. Civ.App.) 371 S.W.2d 780; 2 Tex.Jur.2d, p. 704, para. 246. There was ample evidence in the record to support the court’s presumed finding that both Rieger and General Housing were general agents, as distinguished from special agents, and therefore had authority to make statements and representations relating to the quality of the house.

Appellants’ remaining point asserts that the alleged representation that “the house complied with minimum Veterans Administration Housing Program requirements" is not, as a matter of law, an actionable false representation because Rieger neither knew nor represented anything about the quality of the foundation or its compliance with the Veterans Administration specifications. We cannot agree with this contention. The representation that the house complied with Veterans Administration requirements, we think, is tantamount to stating that the house was constructed in accordance with each and every standard required under the Veterans Housing Program, which would include the requirement that the compressive strength of the concrete be 2000 pounds per square inch. It was conclusively shown that the concrete fell far short of the required standard and hence we think that the statement was an actionable false representation. Appellants further argue that even though the statement amounted to a false representation, it was but a mere statement of opinion. We do not agree.

“ ‘Material misrepresentations as to the quality of a thing which is the subject matter of the transaction are actionable when such misrepresentations induce the other party to enter into the transaction and are relied on to his damage.’ 20-A Tex.Jur. 61.
“Although statements of mere opinion clearly such are not generally sufficient to form the basis of actionable fraud, this rule has many exceptions and qualifications. In fact, it seems the tendency is to hold those who practice the highly developed art of salesmanship to a stricter system of ethics than found on the horse-trading lot. With both State and Federal laws regulating and licensing brokers and salesmen, requiring fair trade practices, truth in advertising and full revelation in security transactions, becoming effective and more restrictive each year, the position of the ignorant buyer who relies on the skillful seller is better than that he must always beware. ‘Thus it is held that when a party affirms as an existing fact material to the transaction that which otherwise might be only an opinion, the other party may reasonably treat the affirmation as a statement of fact and may rely and act upon it as such; if false, such a statement may be actionable.’ 20-A Tex.Jur. § 11, p. 29.”

Bell v. Bradshaw, (Tex.Civ.App.) 342 S.W.2d 185.

The fact that Rieger may not have known whether the house had been constructed in compliance with Veterans Administration requirements, and had no knowledge of the truth or falsity of such a statement would not make the statement less actionable. Under the provisions of Article 4004, V.A.T.S. bad faith is not made an element. Wilson v. Jones, (Tex.Com.App.) 45 S.W.2d 572; Passero v. Loew, (Tex.Civ.App.) 259 S.W.2d 909; Crofford v. Bowden, (Tex.Civ.App.) 311 S.W.2d 954. Appellants’ third point is accordingly overruled.

The judgment is affirmed.


author: BARROW, Justice.

text:
    Ernest M. POENISCH, Jr., et al., Appellants, v. Mamie QUARNSTROM, Appellee.
    No. 14332.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 6, 1965.
    Rehearing Denied Feb. 3, 1965.

      Fischer, Wood, Burney & Nesbitt, James R. Harris, Corpus Christi, Ernest M. Poe-nisch, Jr., in pro. per., for appellants.
    Hardy, Galindo & Sharpe, Brownsville, for appellee.
   BARROW, Justice.

This is the second appeal of this case. Appellants brought this action in trespass to try title and for partition of Lots 11 and 12 in Block “T” of the City of Brownsville. On the prior appeal the judgments of the District Court and the Court of Civil Appeals upholding the limitation claim of ap-pellee, Mamie Quarnstrom, were reversed and the cause remanded with instructions. 361 S.W.2d 367, 372 (Tex.1962).

On remand, appellee asserted a claim for taxes and redemption money paid by her, together with interest on said payments, and for improvements made to said property during the time she had occupied the land. She pleaded that the house located on the front part of Lot 12 was her home and asked that this property be set aside to her. Appellants urged that all issues were determined on the prior appeal, and, in the alternative, denied that appellee was entitled to be reimbursed for her expenditures because of her hostile claim, and urged an offset for the reasonable rental value of the. property during the time appellee had been in exclusive possession, and for rents received by appellee.

After a non-jury trial, the court found that appellee was entitled to partition in kind for the value of her interest in the property, which was found to be $9,000. It was ordered that the commissioners give her property of this value off the rear of Lots 11 and 12. The remaining property was ordered sold, and after appellee was paid $5,634.39, the balance divided among appellants in accordance with the interest of each as found by the Supreme Court. The house located on the front of Lots 11 and 12 was ordered sold and the proceeds divided ¿4 1° appellant Poenisch and 14 to appellee.

One of the primary complaints on this appeal relates to the trial court’s finding that appellee’s interest was partitionable in kind. Rule 770, Texas Rules of Civil Procedure, provides: “Should the court be of the opinion that a fair and equitable division of the real estate, or any part thereof, cannot be made, it shall order a sale of so much as is incapable of partition, * * Appellants assert that there is no evidence to support the trial court’s finding that appellee’s interest was susceptible to partition in kind, or, in any event, same is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust.

It is urged that in determining this issue the trial court could not consider appellee’s interest in the two lots as a whole, in that the front 55' of these lots was severed from the rear 65' by the opinion of the Supreme Court, supra, and each owned by different co-tenants, and not subject to partition under Art. 6082, Vernon’s Ann.Civ.Stats. Appel-lee owned no interest in the front 55' of Lot 11 and owned a one-half interest in the front 55' of Lot 12 with appellant Rose Marilyn Hall. Appellee owned a one-fourth interest in the rear 65' of Lots 11 and 12 with appellants Poenisch, Lula George, Mary Helen Ammann, J. C. George, Jr., and Mary Kathryne Whitelaw. It is further seen that the tax rolls carried the property as four separate tracts, in that the front and rear parts of the two lots were listed separately. We cannot say, however, that the trial court abused its discretion in considering the two lots as a unit.

Two real estate appraisers testified on behalf of appellants and both treated the lots as a whole in determining the value. In fact, each testified it would destroy the value of the lots if divided into small tracts. All appellants presented a common defense and appellant Poenisch testified that he had a contract to acquire the interest of appellant Miss Hall.

Appellants urged and their two expert witnesses testified that the highest and best use of the property was as a parking lot, and that it would ruin the property to cut it up into small tracts. On cross-examination, each admitted that there were many lots in downtown Brownsville and close to these two lots, which were divided into tracts containing less than 3000 sq. ft. There was testimony that the most valuable part of the tract was the front 55' of Lot 12, because it was on the corner and provided access from two streets. There was no testimony that the value of the whole tract would be destroyed if the property were divided into only two tracts. There is evidence that the property is partitionable in kind, and the trial court’s finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Irons v. Fort Worth Sand & Gravel Co., Tex.Civ.App., 284 S.W.2d 215, n. r. e.; Burton v. Williams, Tex.Civ.App., 195 S.W.2d 245, n. r. e.

The trial court determined that appellee’s one-half interest in the front of Lot 12 was of the value of $5,500, and that her one-fourth interest in the rear of Lots 11 and 12 was of the value of $3,500, and ordered the commissioners to set aside land of the value of $9,000 from the rear part of Lots 11 and 12. These valuations were determined in this way: Realtor Thomas P. Bent-sen testified that the whole property was valued at $32,500, and on cross-examination he broke this valuation down as follows: Front of Lot 12, $11,000; Rear of Lot 12, $8,000; Front of Lot 11, $7,500; Rear of Lot 11, $6,000. He said, however, that the total value would be destroyed if the property were cut up into four tracts. Realtor John A. McRay testified that the value ■of the two lots was $35,000, and on cross-examination broke it down as follows: Front of Lot 12, $12,000; Rear of Lot 12, $8,000; Front of Lot 11, $9,000; Rear of Lot 11, $6,000. Realtor E. B. Duarte testified on behalf of appellee that the property could be cut up in several ways into tracts of 3000 sq. ft., and be in conformity ■with other business property in downtown 'Brownsville. He valued the front 55' of Lots 11 and 12 at $15,000 to $16,000, and ‘the rear 65' at $13,000. He also testified that the front 55' of Lot 12 was valued at $10,000 and the rear 65' at $8,000. On Lot 11 he valued the front at $6,000, and the rear at $5,000.

It is seen that there is sufficient evidence to support the trial court’s findings of the value of appellee’s one-half interest in the front of Lot 12 and one-fourth interest in the rear of Lots 11 and 12.

Appellee was allowed reimbursement from appellants for expenditures made in connection with the rear 65' of Lots 11 and 12. Appellants asserted that the instructions of the Supreme Court on remand did not authorize the filing of claims by appel-lee or the hearing of evidence on same. On oral argument, appellants waived their points complaining of this action, but urged that the trial court erred in several particulars in adjusting the equities be-twTeen the co-tenants.

It is asserted that since appellee had pleaded and claimed adverse possession against appellants during the first trial, appellee could not have reimbursement for expenditures made during the time she claimed adversely and held exclusive possession. See Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948); 15 Tex. Jur.2d, Cotenancy, § 12. It is our opinion that this proposition is foreclosed by the holding of the Supreme Court that, as a matter of law, appellee’s possession was not adverse to her co-tenants. The trial court found that appellee had paid $3,825.00 on January 14, 1952, to redeem the rear 65/ of said lots from appellant Poenisch, and directed reimbursement to appellee of this sum, together with pre-judgment interest at the legal rate of 6% from said date, permitting total recovery of $5,890. Appellants assert that there is no evidence or, in any event, the evidence is insufficient to support the finding as to the cost of redemption of the rear 65' of said lots.

The Redemption Certificate was introduced, which recites that Mrs. Mamie Quarnstrom claimed “partial ownership of all of Lot 12 and the Rear 65 feet of Lot 11 * * *” jj- shows ^at appellee paid $5,685.57 to redeem said property. The only breakdown of this amount is a recitation that Poenisch had purchased the property for $3,300.00 and subsequently paid taxes of $490.38, making a total due of $3,-790.38. The penalty of 50% was added to determine the amount paid by appellee to redeem said property. The sheriffs deed to Poenisch is in evidence and it states that Poenisch paid $2,550. for the rear 65 feet of Lots 11 and 12, which sum with the 50% penalty added thereto equals $3,825.00, and fully supports the trial court’s finding of the amount appellee was entitled to be reimbursed.

Appellants urge that the trial court erroneously permitted interest on this sum, as there was no demand by appellee prior to the filing of her amended pleadings upon retrial for adjustment of equities between the parties. Although there is authority to the contrary, the general rule is stated in 27 A.L.R.2d 1268,1270, as follows : “It would seem that ordinarily where the right to contribution arises out of the discharge by one person of more than his just share of a common burden or liability, the right to interest follows as a natural consequence on the theory that in paying more than his proportionate share the person entitled to contribution has lent or advanced money to the use of another, or that such money has been detained by such other, and the implied promise to repay carries with it the right to recover interest on the loss of use of such money during such period.” See Eads v. Rutherford, 114 Ind. 273, 16 N.E. 587. The amount owed was definite and shown by the sheriff’s deed to Poen-isch. The tender was insufficient and therefore did not toll the interest. Fisk v. Holden, 17 Tex. 408.

The trial court did not err in permitting appellee to have reimbursement for the enhanced value of the lots through improvement of same. Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 472; Stephenson v. Luttrell, 107 Tex. 320, 179 S.W.2d 260; Shaw & Estes v. Tex. Consol. Oils, Tex.Civ.App., 299 S.W.2d 307. The testimony of appellee’s witness Bohannon supports the trial court’s finding that the lots were enhanced $1500.00 by filling in a swale on the rear of Lots 11 and 12.

There was evidence that appellee had received the sum of $1200.00 for rent of parking space on the rear 65 feet of Lots 11 and 12. The trial court erred in not awarding appellants an offset of $900.-00 in that they were the owners of of the rear 65 feet of these lots and as such entitled to recover their percentage of the rents received. Sayrs v. Pyland, 139 Tex. 57, 161 S.W.2d 769, 140 A.L.R. 1164; Haynes v. Vermillion, Tex.Civ.App., 242 S.W.2d 444, wr. ref., n. r. e. Appellants were not entitled to recover for the rental value of the front part of the lots while used by appellee, as it was determined on the prior appeal that this use was not adverse to appellants. Schluter v. Sell, Tex.Civ.App., 194 S.W.2d 125, 132; Osborn v. Osborn, 62 Tex. 495; 15 Tex.Jur., Cotenancy, § 9.

The judgment of the trial court is reformed so as to reduce the amount of reimbursement to be recovered by appellee by the sum of $900.00, and as reformed is affirmed. The costs are taxed one-third against appellee and two-thirds against appellants.

      . “The judgments of the District Court and the Court of Civil Appeals are reversed and this cause remanded to the trial court with directions to enter judgment recognizing title to be vested in the following persons in and to the following undivided interests, viz.:
      ‘(a) Petitioner Ernest M. Poenisch, Jr.— ll/£6ths in the rear 65' of Lots 11 and 12; and % in the front 55' of Lot 11.
      ‘(b) Petitioner Rose Marilyn Hall — % in the front 55' of Lots 11 and 12.
      ‘(c) Petitioners Lula George, Mary Helen Ammann and J. C. George, Jr.— %6th each in the rear 65' of Lots 11 and 12.
      ‘(d) Petitioner Mary Kathryne Whitelaw— %2n(l in the rear 65' of Lots 11 and 12.
      ‘(e) Respondent Mamie Quarnstrom — % in the front 55' of Lot 12; and 14 iu the rear 65' of Lots 11 and 12.’
      “The District Court will partition the lands here involved between the respective owners. If the Court should find that the property is not partible in kind, the District Court will order the premises sold and the proceeds of such sale paid over to the parties in proportion to their respective undivided interests.
      “The trial court in its judgment will take into account the tender by petitioners (as plaintiffs in the district court) of $4,030.66 conditioned upon the recovery of the interests in and to the property claimed by petitioner-plaintiffs. This tender was based upon the redemption of a substantial portion of the property by Mamie Quarnstrom from the tax lien foreclosure sale heretofore mentioned. The trial court will also consider such other matters as may be authorized by law.
      “If the property be ordered sold, the manner and details of selling the lands here involved, either in one or more tracts, are to be controlled by the sound discretion of the court and determined by the judgment entered. The Court may recognize such agreements as to details as may be made by the parties to this suit.”

      . The commissioners’ report is in the transcript, and the rear 42' of Lots 11 and 12 has been set aside for appellee.

      . 44 Am.Jur. § 44; Willmon v. Koyer, 168 Cal. 369, 143 P. 694, 699, L.R.A.1915B, 961.


author: STEPHENSON, Justice.

text:
    Allen J. TAYLOR, Appellant, v. HOLLAND ELECTRIC COMPANY et al., Appellees.
    No. 6619.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 7, 1965.
    Rehearing Denied Feb. 3, 1965.

      Ernest Sample, Beaumont, for appellant.
    Keith, Mehaffy & Weber, King, Sharf-stein & Rienstra, Howell & Howell, Beaumont, for appellees.
   STEPHENSON, Justice.

This is a suit for damages because of personal injuries suffered by plaintiff from an ■ electric shock and fall. Defendants are •Chesson, the owner of the premises, Jones, the general contractor, and Holland, the electrical contractor. Plaintiff was employed by Hollywood Overhead Door Company which had contracted to install the overhead doors in the building under construction. Trial was by jury, but at the close of all of the evidence the court discharged the jury and rendered judgment for all the defendants. The parties will be referred to here as they were in the trial court.

There was no error on the part of the trial court in rendering such judgment. No one was present at the time plaintiff received the injuries he described in his petition. His testimony in reference to the incident was to the effect that he did not see the wires at the time he felt the shock that caused him to fall from the scaffold to the ground. He climbed upon the scaffold to fasten a power unit to a ceiling joist with an electric drill in his hand. This drill had a long cord and was connected to a temporary service pole on the outside of the building. It was a hot day and he was perspiring. The electric drill had either an aluminum or cast iron handle. The plaintiff gave the following testimony:

“Q. And your testimony is that you don’t know how the electricity was turned on?
“A. That’s right.
“Q. And you don’t know if the electricity came from the temporary post or the building where you got shocked ?
“A. No sir.
“Q. Were those wires all in conduit at that time?
“A. I don’t know about that.
“Q. Or just naked wires ?
“A. I don’t know if they were in conduit or what they were in.”

The burden of proof was upon the plaintiff to establish both negligence and proximate cause. This he failed to do. By his testimony it is just as likely that the shock he described came from the electric drill as from an exposed wire. This point is controlled by the statement of the Supreme Court in Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1 as follows:

“ * * * Verdicts must rest upon reasonable certainty of proof. Where the proof discloses that a given result may have occurred by reason of more than one proximate cause, and the jury can do no more than guess or speculate as to which was, in fact, the efficient cause, the submission of such choice to the jury has been consistently condemned by this court and by other courts.”

The trial court did not err in rendering judgment for the defendants, as the testimony established as a matter of law that plaintiff was guilty of contributory negligence. Plaintiff testified as follows:

“Q. You know that in an incompleted building the insulation of wires is not completed and the wires are not in the same condition that they would be in after the building is completed?
“A. Yes.”
“Q. I asked you if it isn’t a fact that a lot of times when the electricians are not yet finished with their work that they leave the electrical work half finished ?
“A. Yes.
“Q. This building was not completed and the work was still going on?
“A. Yes.
“Q. The electricians still had work to do?
“A. Yes.”
“Q. Did you look to see if there was a conduit that went up to that part of the ceiling?
“A. No.
“Q. Anything to keep you from looking?
“A. I was working.
“Q. You were so absorbed in your work you didn’t bother to look if there were wires up there?
“A. I was working.”
“Q. Did you make any effort to see what your hand was getting into ?
“A. I just thrówed my hand over the power unit so as to fasten it to the ceiling.
“Q. Were these wires hanging down from this (junction) box?
“A. They were when I went back to-look (Monday morning), they were sticking down.”
“Q. You went back there by that place about 9:00 o’clock Monday morning following the accident?
“A. Yes.
“Q. That is when you looked to see what had happened?
“A. Yes.
“Q. The truth is, of your own knowledge, you don’t know if the wires were out or in the junction box (On Saturday) ?
“A. No.
“Q. You didn’t see them?
“A. No.”
“Q. It was light enough to see up there, it didn’t take you but five minutes to do that?
“A. I could see pretty good.”
“Q. Had you worked there the evening before?
“A. I just went by and helped them a little.
■“Q. You hadn’t noticed any wires hanging down in there?
•“A. No, sir.”
“Q. Did you look at all up there, (to •ceiling) that is what I am asking you ?
■“A. No, I just went to work.”
“Q. And this (junction) box, when you looked at it on Monday, was it above where you were attaching that mechanism to ?
A. Yes, above it.
“Q. How far above?
‘“A. 3 or 4 inches, something like that.
“Q. And if it was just that far if you had looked you could have seen it?
'“A. If I had been looking for it I ■could have seen it.”
“Q. And a building in this stage of ■construction as the grease rack building was, did you ever know of electricians disconnecting the electricity at the switch?
“A. No, sir, I don’t.”

'This testimony established as a matter of law that plaintiff did not conduct himself under the circumstances as an ordinary prudent person. We hold that the danger from an electrical wire under the circumstances in this case was patently obvious as a matter of law.

Plaintiff complains of the action of the trial court in overruling his motion for continuance. The record shows that this ■case was filed November 6, 1956, and that this case was pending on the “try or dismiss docket”. The trial court overruled the plaintiff’s fourth motion for continuance June 25, 1962, which motion incorporated all of the allegations contained in plaintiff’s second motion for continuance. The ground for such motion was the absence of the plaintiff who was in Alaska. The case was tried by using plaintiff’s deposition. This record does not show an abuse of discretion by the trial court. The point is overruled.

Affirmed.


text:
    Neva Leona WHITE et vir, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 6666.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 31, 1964.
    Rehearing Denied Feb. 3, 1965.

      Jim S. Phelps, Houston, for appellant.
    Bracewell, Reynolds & Patterson, Houston, for appellee.
   STEPHENSON, Justice.

This is a workman’s compensation case. Judgment was rendered in the trial court that plaintiff take nothing. The jury found in answer to special issue No. 1 that plaintiff did not receive an accidental injury while working in the course of her employment. The jury also found plaintiff’s incapacity was due solely to some other disorder or disease or a condition of health. The parties will be referred to here as they were in the trial court.

Plaintiff contends that there was no evidence to support the findings of the jury mentioned above. These are questions of law to be determined by considering only the evidence favorable to such findings and disregarding all other.

Plaintiff alleged in her petition that she was totally and permanently disabled by reason of an accidental injury received June 13, 1961, while working in the course and scope of her employment for Sears, Roebuck and Company. The petition further alleged that she hurt her back while lifting a box.

The only evidence in this case was given by the plaintiff, a doctor called by plaintiff, a doctor called by defendant, and the hospital records which contained medical histories, examination, treatment and findings.

The following is a résumé of the evidence which supported the finding of the jury that plaintiff’s incapacity was due solely to some other disorder or disease or condition of health. Plaintiff testified to a series of conditions of her health during the past including being hospitalized nine times during the nine years preceding the date of the alleged injury. Her testimony showed she fell in the bathtub in 1957, injuring her back to the extent that she entered the hospital and was placed in traction.

Dr. Thomas H. McGuire, called by defendant, testified he examined plaintiff while she was in the hospital in 1959. This examination was at the request of Dr. A. Beyer. The history as given by plaintiff to Dr. McGuire is set out as follows:

“Very well, when I first see a patient, I inquire as to their past history and what may have transpired in the past that might be an element in the present situation, and this lady told me that she had had malaria some four or five times in the past, the last time being some six or eight years before I saw her in ’59. She told me she had pneumonia a couple of times, that in the past she had had her appendix removed in 1942. Her tonsils had been removed. She had a female operation in 1955. A tumor had been removed from her right shoulder blade. At the age of sixteen she had been thrown from a horse, that about five years before I saw her, she lifted a cedar chest at home and strained her back and then that she had fallen in the bathtub some two years before I saw her and had some difficulty. She told me that to her knowledge she did not have any allergies, had not been exposed to any poisons or chemicals, had not taken any shots like lock jaw. She had been told in the past that she had a deformity of the spine. She had had headaches off and on for several years. More recently her vision had been impaired some four or five months before I saw her, and associated with this she had had episodes of pain and swelling around her left eye. She wore glasses and felt that with her glasses her vision was about normal. * * * Yes, sir; she told me that more recently her vision had been impaired for the past four or five months. Associated with this there had been some pain and swelling around her left eye. She wore glasses and with her glasses, she felt that the sharpness of her vision was fairly normal, but had difficulty in seeing to the side. She also told me that her menses, her periods, had been somewhat irregular since her female operation in 1955. The hearing in her left ear was impaired and she had some episodes of catches in her neck. There were episodes of numbness involving her left arm and left leg. She had had some pain in her low back with radiation down her left leg as far as the ankle. There had been swelling in her body due to fluid retention. Her kidneys and bladder had been normal, but her balance had been somewhat unsteady in that she tended to fall and two or three times in the last few weeks had fallen at home. That was the extent of the history as she told it to me.”

Dr. McGuire also testified that plaintiff complained of pain running down her left leg. He performed a neurological examination, and was not able to determine any physical reason for her complaints. He told Dr. Beyer that plaintiff’s symptoms might be due to nervous tension.

The hospital records offered in evidence showed plaintiff was examined by Dr. Beyer at the same time plaintiff was in the hospital in 1959 and his final impression was given as “anxiety state”.

Dr. Irving M. Watson was called by plaintiff. He examined and treated plaintiff for this injury and gave the only testimony in the record pertaining to causation between plaintiff’s injury and her incapacity as follows:

“Q. Now, Doctor, these things that you found wrong with her back there, tenderness in her back, the positive straight leg raising test, the loss of sensation along the dermatome controlled by the fourth and fifth inter-spaces, are those things — and the muscle spasms you say you found in her back — are those things, Doctor, things that would be caused by an injury or are those things that would be caused by anxiety?
“A. These particular complaints and findings on a patient are certainly much more likely to be on a basis of some type of injury.
“Q. Were the findings that you made, Doctor, and the diagnosis you made consistent with the history that she gave you that on the day before you saw her she was lifting a box at Sears when she got this sudden pain in her back?
“A. Yes, sir.”

On Cross Examination, Dr. Watson gave this testimony:

“Q. Dr. Watson, on the basis of what you know, the entire medical history, the findings that the operation done in Houston showed, you can’t say that at this time that there is any organic or any physical reason for her to be suffering with the bad back, can you?
“A. There is no organic reason that I can point out and say that is what is causing the trouble, no, sir.
“Q. At this time you don’t actually have any explanation on any physical basis for the complaints that she has ?
“A. I don’t have one that satisfies me, no sir.”

Also, Dr. Watson gave testimony as to the history given him by the plaintiff as follows:

“Q. All right; now, I want to ask you a few questions about the medical history you took here, Doctor, when she came in to see you. When you saw Mrs. White on- — in June of 1961, I believe you told Mr. Phelps here that you took a medical history from her and in which she reported to you — you will have to forgive me. I can’t read this too well here.
“A. ‘Patient had similar trouble-with back a couple of years ago and was. told she had one or more herniated discs- and needs surgery; however, she recovered enough to return to work; however, she has continued to have trouble with back since then.’
“Q. In other words, since this original injury?
“A. Yes, sir.”

Dr. Watson also testified that if a person-had a herniated disc you would expect to-find the defect upon surgery.

The hospital records showed that Dr.. R. H. Eppright performed surgery on plaintiff’s back July 13, 1961, and found no evidence of a herniated disc. His final summation after surgery in the hospital report was: “Possible degenerative disc disease of the lumbar spine.”

In view of all of this medical evidence, the finding of the jury that plaintiff’s incapacity was due solely to some other disorder or disease or condition of health was; supported by the evidence.

In determining the point that such finding of the jury was against the great-weight and preponderance of the evidence, we considered all of the evidence. Plaintiff gave testimony indicating she had fully recovered from the back injury in 1957, and that her present incapacity was caused by the injury alleged in her position. This-testimony raised an issue for the jury to decide, which it did adversely to the plaintiff. Such finding of the jury is not clearly wrong or manifestly unjust. The point is-overruled.

We next consider plaintiff’s “no evidence” point in reference to the jury’s answer to special issue No. 1 finding that plaintiff did not receive an accidental injury while working in the course of her employment. Plaintiff served requests for admissions upon counsel for defendant. Number two read as follows :

“2. That on the above date the said plaintiff received an accidental injury-while in the course of said employment for the above named employer in Montgomery County, Texas.”

This request for admission was not answered and, upon the trial, plaintiff offered such request into evidence. The truth of this request became established as a matter of law, and the defendant would not have been permitted to offer evidence to the contrary. We find no evidence in the record to support the finding of the jury that plaintiff did not receive an accidental injury while working in the course of her employment. However, there is no conflict between an affirmative finding to this issue and the finding of the jury that plaintiff’s incapacity was due solely to some other disorder or disease or a condition of health. There would have been a conflict in the answers to the issues if this jury had found such accidental injury was the producing cause of any total incapacity or any partial incapacity. Both these issues were conditioned upon an affirmative answer to special issue No. 1. Inasmuch as the jury answered special issue No. 1 in the negative, it never reached the issues on producing cause and then the extent of disability, if any. The failure of the plaintiff to object to the conditional submission of these issues constituted a waiver of her right to secure an answer to such issues. This is true even though findings favorable to the plaintiff would have resulted in an irreconcilable conflict. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985.

Judgment affirmed.

ON MOTION FOR REHEARING

Plaintiff further complained of the action of the trial court in submitting the issue in reference to plaintiff’s incapacity resulting solely from some other disorder or disease or condition of health on the ground that there was no pleading to support its submission. Defendant’s pleading, as to this matter, was as follows:

“For further answer herein, if further answer be necessary, Defendant alleges that the condition of which Plaintiff complains is the result of disease, bodily infirmity, injuries or other condition, suffered by Plaintiff prior to the 13th day of June, 1961, the date on which Plaintiff has alleged the injury of which she now complains occurred, and that Plaintiff has therefore suffered no compensable injury to which Defendant can be charged under the terms of the Texas Workmen’s Compensation Act.”

The issue submitted by the court was as follows :

“Do you find from a preponderance of the evidence that any disability or incapacity to work, if any, which Leona White is suffering or will suffer in the future, if any, is not due solely to some other disorder or diseases or a health condition of the plaintiff Leona White, in nowise produced, caused or aggravated by such injury, if any, received in the course of her employment with Sears, Roebuck and Company on or about June 13th, 1961 ?
“Answer ‘Such incapacity is not due solely to some other disorder or diseases or a health condition of the Plaintiff Leona White’ or ‘Such incapacity is due solely to some other disorder or diseases or a health condition of the Plaintiff Leona White’.
“ANSWER: Such incapacity is due solely to some other disorder or disease or a health condition of the Plaintiff Leona White.”

Plaintiff argues that defendant’s pleading does not raise an issue as to “sole cause.” The record in this case shows that plaintiff filed special exceptions to this paragraph of defendant’s pleadings. In these special exceptions plaintiff states, in effect, that this is a pleading of sole cause, and the complaints made are to the fact that such pleading is vague and indefinite. The record does not show that any action was taken by the court upon these special exceptions and no point is brought to this court that the trial court overruled such exceptions and that such action was error. Under this state of the record, we hold that defendant’s pleading was sufficient, and that any defect in the pleading was waived. Rule 90, Texas Rules of Civil Procedure; Trinity Universal Ins. Co. v. Chafin, Tex.Civ.App., 229 S.W.2d 942.

Appellant’s motion for rehearing overruled.


author: RENFRO, Justice.

text:
    Meredith GIBBS et al., Appellants, v. ALLSTATE INSURANCE COMPANY et al., Appellees.
    No. 16592.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 15, 1965.
    Rehearing Denied Feb. 12, 1965.

      Jones, Fillmore, Robinson & Lambert, and Kenneth Ray Farabee, Wichita Falls, for appellants Meredith Gibbs and others.
    Gowin Davis, Wichita Falls, for appellant Bruce L. Odom.
    Humphrey, Gibson & Darden, and Lee Humphrey, Wichita Falls, for appellant John H. Humphrey.
    Nelson & Sherrod and Eugene Sherrod, Jr., Wichita Falls, for appellee Allstate Insurance Co.
   RENFRO, Justice.

Suit No. 72442-C was filed in Wichita County by Meredith and Barbara Gibbs against Bruce L. Odom for injuries sustained by them in an automobile collision with Odom.

Odom called upon Allstate Insurance Company to defend him in said suit. Allstate refused.

Allstate filed suit No. 72745-C in which it prayed that judgment be entered declaring there was no policy in force or other contract between Odom and Allstate, and that it had no duty to defend Odom in the Gibbs suit. In the latter suit Odom filed a counterclaim against Allstate and its agent Humphrey, in which he alleged Allstate and Humphrey had breached a contract to procure a policy of automobile liability insurance for him, to his damage in the sum of $11,409.77 (the amount of a judgment entered against him in the Gibbs suit). The Gibbs entered the declaratory suit praying for judgment over against Odom for anything he might recover against Allstate up to $11,409.77.

The jury found: (6) the $11,409.77 represented a fair and reasonable settlement in Gibbs v. Odom; (11) on September 8, 1962, Humphrey agreed to procure an automobile liability policy for Odom without Odom agreeing to furnish any additional information; (12) Humphrey was acting as an agent for Allstate when he agreed to procure liability insurance for Odom; (13) Humphrey was clothed with apparent authority to act for Allstate in securing assigned risk policies; (14) Odom relied upon acts, conduct or want of ordinary care of Allstate; (15) Odom was harmed by such reliance; (16) Odom was damaged in the amount of $11,909.77.

Upon motion for judgment non obstante veredicto filed by Allstate, the court disregarded the answers to issues Nos. 12, 13 and 14, and entered judgment that no contract of insurance or other contract ever existed between Allstate and Odom and the Gibbs; that Odom take nothing against Allstate; that Odom have judgment against Humphrey, and the Gibbs have judgment over against Odom.

Odom and the Gibbs appealed from that part of the judgment absolving Allstate from liability. Humphrey appealed from the judgment in favor of Odom against him.

Odom and the Gibbs contend the court erred in disregarding issues Nos. 12, 13 and 14, and erred in failing to hold as a matter of law that Allstate was liable for damages caused by the breach of Humphrey’s, contract to procure a liability policy for Odom.

According to Odom’s testimony, he, in July of 1961, desired to obtain liability insurance. He was unmarried and under 25 years of age. He knew it would be difficult to secure a liability policy. He went to the Allstate booth in Sears store and talked to Humphrey. He was told by Humphrey that he could not get a policy with Allstate. Humphrey then explained the assigned risk plan (Art. 6701h, § 35, Vernon’s Ann.Tex.Civ.St.). It was explained that his application would have to go to Austin and be assigned to some particular insurance company. He filled forms for assigned risk and left his $93.00 check with Humphrey. He knew he would not be insured until a policy was mailed to him. A few days later he received, at Allstate’s booth, a policy issued by Continental Casualty. In July of 1962, he received a letter from Continental informing him his premium was due in 45 days, a renewal form was enclosed. He completely filled in the form, but never returned it to Continental. Next he received a letter from Continental dated August 22, which informed him the policy had been cancelled for nonpayment of premium. After receiving the cancellation notice from Continental he went to see Humphrey. “A. * * * the reason I hadn’t gone down sooner was that I was working that week and that weekend was the only time I could go down and when I got to the office, Mr. Humphrey was the only agent there at that time so I introduced myself to him and I told him that he had gotten me a policy the year before and I took the renewal form with me it had quite a bit of information, in fact, all the information he needed to make a new application or to renew, whichever one he could do, and I told him that I wanted to renew if it was still possible and he told me that he couldn’t renew it since the policy had elapsed and that he would make a new application for me.” He left a check in the sum of $96.00 with Humphrey. It was not made payable to Allstate. He left thinking he would get a policy through assigned risk. He was still under 25 years of age and unmarried. He knew Allstate would not insure him. He knew when he left Humphrey that he had not been insured and would not be until he received a policy from some company. He knew it would not be Allstate unless, by chance, Allstate was required to issue a policy under the assigned risk plan. He expected Iiunphrey to get him a policy through assigned risk as he had the first time. He never inquired of Continental, Humphrey or anyone else if a policy had been issued to him. (Humphrey had cashed the check three days after the above occurrence but had not made application for Odom, his testimony being that he was awaiting promised information from Odom.)

The accident occurred December 26, 1962. Odom had exchanged cars in the interim arid wqs of the opinion he had a Lloyd’s liability coverage. He called Allstate in an effort to locate the Lloyd agent. He did not have a Lloyd liability policy. Allstate had no record of any policy issued to Odom.

It was undisputed that Allstate would not issue liability insurance policies to unmarried males under 25 years of age, that it does not refer unacceptable applicants to other agents, and that Allstate does not receive any of the premiums paid by an applicant for insurance under the assigned risk plan. The individual agent who assists an applicant applying through the plan accepts the premium from the applicant, deducts a commission, and sends the balance to Austin. Allstate exercised no supervision or control over policies written through the plan, and did not receive cancellation notice of such policies.

We deem it unnecessary to set out the evidence regarding the actual and apparent authority of Humphrey to bind Allstate for the reason that Odom’s own testimony, summarized above, in our opinion, establishes the fact that he knew he was not dealing with Allstate on the occasion in question.

Odom knew Allstate would not issue a policy to him. He knew Humphrey was an Allstate agent. The plan was carefully explained to him. He understood clearly that Humphrey could not bind Allstate or any other company, but, in this instance, could only apply through the plan. He knew Hunphrey could not direct the application to any company, but could merely send it to the plan.

In our opinion the evidence shows that Odom knew that Humphrey was not acting for Allstate, but on the contrary was, as an individual, acting for Odom in agreeing to obtain liability insurance for Odom. Such being the case, Odom could not recover from Allstate. Home Ins. Co. v. Lake Dallas Gin Co., 127 Tex. 479, 93 S.W. 2d 388 (1936) ; Camden Fire Ins. Co. v. Hill, 276 S.W. 887 (Tex.Com.App., 1925); Overland Sales Co. v. American Indemnity Co., 256 S.W. 980 (Galveston Civ. App., 1923, no writ hist.) ; Smith v. American Radiator & Standard Sanitary Corp., 166 S.W.2d 757 (Galveston Civ.App., 1942, no writ hist.).

In our opinion the evidence did not support the issues which the court disregarded. Odom knew he was dealing with Humphrey as an individual, not as an agent for Allstate. Since an instructed verdict should have been granted to Allstate, it was not error to render judgment for Allstate notwithstanding the verdict.

Appellant Humphrey contends that had a policy been procured by him for Odom it would have been limited to the ordinary terms of $5,000 per person, $10,-000 per accident and $5,000 property damage ; that there was no proof to support the damages determined by the jury so as to fit the coverage.

Both Mr. and Mrs. Gibbs testified in detail as to the nature and extent of the personal injuries sustained by them in the accident. Odom testified the agreed judgment was entered into on the bases of $5,000 personal injury to each, and $1,400 property damage.

The evidence is sufficient to support the finding on damages.

Humphrey also contends that Odom failed to use diligence to determine that no policy had been issued to him; hence, he is precluded from asserting damages against Humphrey for lack of coverage, that Odom has no cause of action because he failed to comply with the law requiring a written application, and that Odom should not recover because he could not certify that he had, within the preceding sixty days, tried and been unable to obtain liability insurance.

The jury found that on September 8, 1962, Humphrey agreed to procure a liability policy for Odom, that Odom was not requested to furnish any additional information, that the agreement was not conditioned upon Odom furnishing additional information and further found against Humphrey’s claim of lack of diligence on Odom’s part. The above findings are amply supported by the evidence.

An insurance broker agreeing to obtain insurance owes the legal duty to obtain it, and, if he cannot do so, to notify the applicant of his failure. Burroughs v. Bunch, 210 S.W.2d 211 (El Paso Civ.App., 1948, ref.).

It is undisputed Odom gave Humphrey a $96 check. Humphrey cashed the check and retained the proceeds. It was Odom’s testimony that he thought the check and the information given Humphrey was all that was needed by Humphrey to fulfill his agreement to procure insurance for Odom. Humphrey never called upon, nor attempted to call, Odom for any additional information.

In view of the jury findings, and the holding in Burroughs v. Bunch and cases therein cited, we hold that the record supports the judgment in favor of Odom against Humphrey.

Judgment affirmed.


text:
    CONTINENTAL OIL COMPANY, Appellant, v. William DOORNBOS et al., Appellees.
    No. 6659.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 5, 1964.
    Rehearing Denied Jan. 20, 1965.

      Orgain, Bell & Tucker, Beaumont, Thos. D. Montgomery, Fort Worth, for appellant.
    Williams, Lee & Lee, Houston, W. O. Bowers, Jr., Beaumont, Harry L. Logan, Jr., Fort Worth, for appellees.
   STEPHENSON, Justice.

This action was brought in trespass to try title and for reformation of a deed because of mutual mistake. Trial was by jury and judgment was rendered for plaintiffs based upon the findings of the jury.

April 23, 1945, Continental Oil Company, hereinafter called defendant, conveyed' by deed to C. Doornbos approximately 1800 acres located in Jefferson County, Texas. Such deed reserved and excepted four royalty interests as follows:

1. A reservation of %2nd of production by San Antonio Loan & Trust Company in its deed to Continental dated January 25, 1942.
2. A royalty of 542nd of production conveyed by Continental to Butcher-Arthur Company by deed dated January 26, 1943.
3. A royalty of 54snd of production reserved in favor of Continental in its deed to C. Doornbos dated April 23, 1945.
4. “14th of all the royalty” conveyed by Continental to A. R. McElreath and F. W. Suggett on January 26, 1943.

No mention is made in such deed as to the amount of royalty being conveyed to C. Doornbos.

Plaintiffs are the successors in title of C. Doornbos, their father. The successors to McElreath and Suggett were made parties defendants, and at the conclusion of plaintiffs’ evidence, an instructed verdict was rendered for these defendants and no appeal has been taken from the judgment in their favor. This judgment decreed that such successors to McElreath and Suggett recover a full 14th of all royalty whether the royalty was 54 th or in excess of 54th.

Plaintiffs alleged that it was agreed and intended by both the defendant and C„ Doornbos that C. Doornbos would receive all royalty in excess of 54th of production and that by mutual mistake this provision had not been included in the deed. It was prayed that such deed be reformed to include this provision. There was no pleading nor proof that fraud was involved in any way in this transaction.

The jury found: that defendant agreed to sell and convey and intended to sell and convey to C. Doornbos all royalty over 14th; that C. Doornbos agreed to purchase and acquire, and intended to purchase and acquire from defendant, all royalty over 54th; that defendant believed its deed effectively conveyed all royalty over 54th to C. Doornbos; that C. Doornbos believed such deed effectively conveyed to him all royalty over 54th; and, that omission of such language from the deed to convey such royalty interest was the result of a mutual mistake of the defendant and C. Doornbos. Judgment was rendered reforming such deed so that C. Doornbos received all royalties in excess of 54th and further decreed that to the extent the language of the royalty reservation in the deed from Continental Oil Company to Doornbos “is or may be in conflict with and repugnant to the grant to C. Doornbos of all royalty over and above and in excess of one-eighth (54th) royalty in accordance with said deed as same is reformed and amended by this decree, said reservation insofar as it does or may conflict with the grant of all royalty over one-eighth (¡/¿th) royalty to C. Doornbos is wholly void and of no effect to the extent of such conflict.”

Defendant contends that there is no evidence to support these findings of the jury hereinbefore set forth and that the trial court erred in decreeing reformation of the deed. These are questions of law to he determined by this court by considering only the evidence favorable to such findings and disregarding all other.

The evidence in this case shows clearly that both C. Doornbos and defendant were of the opinion that the deed by defendant to McElreath and Suggett describing the interest as Y^th of the royalty, conveyed a %2nd royalty. All of their negotiations were based upon the premise that there would be outstanding at the time of the conveyance to C. Doornbos, a Yth royalty interest, including the %2nd reserved by defendant. The evidence shows that Mr. B. F. Mayer told C. Doornbos and William Doornbos, during the course of negotiations to sell the land, that the purchase of the land would include all royalty in excess of one-eighth. A letter from Mr. Mayer dated February 7, 1945, was accepted in evidence and read as follows:

“Houston 2, Texas
February 7, 1945
Mr. C. Doornbos
Nederland, Texas
Dear Mr. Doornbos:
Before I submit your offer of $40,000 for the property near Port Arthur, with our company to reserve a %2nd royalty, there is one thing that I wish to be sure you understand. There had been sold J^ths of l/fjth royalty. If we reserved a %2nd, which is Yfo1 of Véth, there would then be no royalty conveyed with the property if we sold it. You would, however, own all the minerals which would give you the leasing rights. If you executed a mineral lease you would have to provide for more than a J4th royalty so that any royalty over and above the Ys th would be yours. This has been done in numerous instances by landowners.
With the above in mind, if you are willing to pay $40,000,1 will submit it at once, and I feel reasonably sure the management will be inclined to accept your offer.
Yours very truly,
B. F. Mayer
General Land and Title Man Land Department Southern Region”

Also admitted in evidence was another letter from Mr. Mayer to C. Doornbos dated February 15, 1945, a portion of which read as follows:

“With reference to my letter of February 7th and our recent conversation here in the Houston office, the matter of selling the property near Port Arthur to you has been taken up with our officials and they are willing to accept your offer of $35,000 for the land, with our retaining a of Ys th, or a %2nd royalty interest, which would make at the time the sale is consummated Ys th royalty outstanding against the property.”

The date of the deed from defendant to C. Doornbos was April 23, 1945. The evidence further shows that both C. Doornbos, until the date of his death July 12, 1954, and the defendant, until 1959, treated this deed as a conveyance of all royalty in excess of Ys th. Even though there is no direct evidence that either the defendant or C. Doornbos intended to incorporate a provision in the deed that C. Doornbos should receive all royalty in excess of J4th, it is apparent that both parties not only intended that C. Doornbos receive such interest, but also thought this was the legal effect of such1 conveyance. Under these circumstances, that is, a mutual mistake as to the legal effect of words used in a conveyance, the remedy of reformation is available in order to carry out the intention of the parties. Miles v. Martin, 159 Tex. 336, 347, 321 S.W.2d 62.

Once we arrive at the true intentions of the parties, we find a conflict in the conveyance. As above stated, even though it is clear that the defendant and C. Doornbos intended that C. Doornbos receive all royalty in excess of i/áth, it is equally clear that defendant and C. Doornbos intended that defendant retain a %2nd royalty interest. The trial court correctly resolved this conflict in its judgment by holding that the deed be reformed to grant C. Doornbos all royalty-in excess of i/sth and that the reservation by defendant was void to the extent of any conflict. A grantor in a warranty deed is estopped to claim title to an interest reserved therein, when to permit him to do so would, in effect, breach his warranty with respect to the title and interest which the deed purports to convey. Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W. 2d 878; Miles v. Martin, supra. The evidence, together with all reasonable inferences therefrom, supported the findings of the jury and the judgment of the court.

Defendant also contends the answers of the jury to such special issues were against the overwhelming preponderance of the credible evidence. We have considered the entire record in passing upon these points and we do not find such answers to be clearly wrong or manifestly unjust. The points are overruled.

A series of issues were submitted to the jury asking whether C. Doornbos or the plaintiffs did not discover the mistake inquired about, and also whether there was not want of reasonable diligence on the part of C. Doornbos or the plaintiffs in failing to discover the mistake inquired about before September 1,1956, this date being four years before the amended petition was filed alleging mutual mistake and seeking reformation. It is agreed by the parties that a suit brought to correct a mistake in a deed is governed by Art. 5529, Vernon’s Ann.Civ.St., and that suit must be brought within four years. It is also agreed that such a cause of action accrues at the time the mistake is discovered, or when the mistake should have been discovered, by the exercise of reasonable diligence. The jury found favorably to plaintiffs on all of these issues and defendant contends these findings of the jury are without support in the evidence.

The evidence shows that defendant believed the McElreath and Suggett reservation was a %2nd until about February or March, 1959. December 17, 1957, an attorney for plaintiffs wrote the defendant a letter containing the following:

“My attention has been called to a possible interpretation of your royalty deed to McElreath and F. W. Suggett as conveying 14 of a % royalty provided in a lease by the Trustees under the will of C. Doornbos, deceased, which would be a %4th instead of a %2nd royalty. Your letters to Mr. Doornbos of February 7, 15 and 22, 1945, just prior to your deed to him, indicate that your deed to McElreath and Suggett was intended to convey only a %2nd royalty. Photocopies of your three letters to Mr. Doornbos are enclosed.
“The trustees under his will, who are his three sons, desire a recordable agreement that the royalty of McElreath, Suggett, Brown and Wheller, together, is a %2nd and not 14 of such royalty as may be provided in any mineral lease made by them. In view of your letters to Mr. Doornbos, your files should contain information or correspondence which certainly should remove any doubt that such royalty is a %2nd and not 14 °f Ve or any other amount of royalty.”

Defendant’s reply dated January 31, 1958, was as follows:

“In regard to your letter of December 17,1957, we submitted the Royalty Deed from Continental to A. R. McElreath and F. W. Suggett to our Legal Department for their opinion.
“They have advised us that the above-mentioned Royalty Deed clearly conveyed a %2 interest (54 of Vs of %) in the oil and gas which might be produced from the lands covered thereby. They further advise that no corrective instrument is considered necessary at this time.”

The first indication that the defendant placed any other interpretation upon the interest held under the McElreath and Suggett reservation was set out in its letter to plaintiffs’ attorney dated March 4, 1959.

It is argued by defendant that C. Doornbos had examined the deed and had his attorney examine the deed, and further that C. Doornbos had an abstract furnished to him showing all of the instruments in his title. It is contended that there is no evidence in the record that C. Doornbos did not know of the omission of language in the deed conveying him all royalty in excess of V&th.. It was not the discovery of the failure to include this language in the deed which would have started the statute of limitation running in this case. It was the discovery that the legal effect of the deed as written did not convey such interest, that would have started the statute of limitation running. There is no evidence in this record that C. Doornbos, the plaintiffs or the defendant had any suspicion that the legal effect of the deed was contrary to the mutual mistake found by the jury, at any time before September 1, 1956. The statute of limitation did not begin to run in this case until either the mistake as to the legal effect of the words used was discovered or, in the exercise of reasonable diligence, should have been discovered. Miles v. Martin, supra. Questions of fact were presented in this case, and found by the jury in favor of plaintiffs. The evidence supported these findings of the jury.

Defendant also contends such findings were supported by insufficient evidence and that such findings were contrary to the great weight and preponderance of the evidence. From an examination of all of the evidence upon these points, we do not find such answers to be manifestly unjust or clearly wrong. Such points are overruled.

Defendant has three points of error as to admission of certain evidence. There statements were admitted in evidence, all of the general import that there was a l/Sjth royalty outstanding on this tract. The first, in the handwriting of C. Doornbos, was written across the face of a ledger sheet and a witness testified the entries were made in the usual course of business. The second was an entry on a ledger sheet, and a witness testified it was made by the bookkeeper. The third was a sheet of paper with entries made by C. Doornbos, setting forth the outstanding royalties on this tract. It is apparent that these statements were not offered to prove the truth of the matters therein stated, that is, that there was an outstanding 14th royalty interest, but solely for the purpose of showing the state of mind of the person making the statement. Even though there might be some question as to whether these statements could qualify as exceptions to the “Hearsay Rule” in view of the great amount of evidence on this same point, this could not be harmful error. Rule 434, Texas Rules of Civil Procedure.

There are also a group of points complaining of the action of the trial court in admitting in evidence certain correspondence and memorandums written by defendant’s employees. All of these were dated after the date of the deed. The same rules of law would apply to these offerings as set forth in the preceding paragraph. These points are overruled.

This court has carefully read and considered all fifty-four points contained in defendant’s brief. All points are overruled.

Judgment affirmed.

PARKER, J., not sitting.


author: PHILLIPS, Justice.

text:
    Kenneth Ray JONES, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 11253.
    Court of Civil Appeals of Texas. Austin.
    Jan. 6, 1965.
    Rehearing Denied Jan. 20, 1965.
    Warren Burnett and Robert D. Pue, Odessa, for appellant.
    Hardeman, Smith & Foy, San Angelo, for appellee.
   PHILLIPS, Justice.

This is an action brought under the Texas Workmen’s Compensation Act, Article 8306, Vernon’s Ann.Civ.St. The appellant, the plaintiff below, brought suit alleging that in the course of his employment he sustained injuries to his right leg, which injuries extended to and affected other parts of his body and resulted in his total and permanent disability under the Compensation Act. For such total and permanent disability appellant sought compensation in a lump sum under the provisions of Section 15a of Article 8306.

The case was tried before a jury that found in answer to special issues that there was total but temporary loss of the use of the right leg for nine weeks and ten per cent partial and permanent loss of the use of the right leg. The jury found that the injury was confined to the right leg.

Judgment was entered upon the verdict and from that judgment appellant has appealed to this Court.

Appellant is before us on two points of error, the first being: “The trial court erred in refusing to submit Appellant’s Requested Special Instruction attached to Special Issue No. One, which tendered in writing a substantially correct definition of ‘ “TOTAL LOSS OF USE” ’ of a member and, in overruling appellant’s objection to the submission of a definition of ‘ “TOTAL LOSS OF USE” ’ of a member which failed to submit such member’s loss of substantial use as a member of the body disjunctively from such member’s condition such that a workman cannot procure and retain employment requiring the use of the member. Such error amounted to a denial of appellant’s rights and was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this Cause and was reversible error.”

Plaintiff’s (appellant) objection to the definition of total loss of use was as follows:

“Plaintiff objects to the definition of ‘total loss of use’ as a definition herein, and specifically requests the Court to give the definition approved by the Supreme Court in the case of Seabolt vs. The Travelers Insurance Company, for ■ the reason that it fairly and reasonably submits total loss of use of a member.”

Appellant then tendered the court in writing the definition of “total loss of use” as defined in Travelers Insurance Company v. Seabolt, Tex., 361 S.W.2d 204.

Appellant contends that his request is governed by Rule 279, Texas Rules of Civil Procedure, wherein failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment.

Appellant had been working in the oil fields or doing construction work either of which jobs requires the unimpaired use of his arms and legs. Upon reviewing the record we have concluded that there was evidence before the jury from which they could have reasonably concluded that the total loss of use of the legs was permanent if the correct definition of total loss of use had been given them. The requested definition from Travelers Insurance Co. v. Sea-bolt is as follows:

“A total loss of the use of a member exists whenever by reason of injury, such member no longer possesses any substantial utility as a member of the body, or the condition of the injured member is such that the workman cannot procure and retain employment requiring the use of the member.”

As to evidence of whether appellant could procure and retain employment requiring the use of the member, the element omitted from the charge submitted, we find testimony that it was dangerous for appellant to drive in traffic, that he had a limp, that his leg was “always swelling up around the knee cap; ” that his leg sometimes “gave away under him” etc.

In Travelers, the Supreme Court pointed out that the above quoted definition was a somewhat broader concept and one which will in most instances be more favorable to the injured workman. That although a member may possess some utility as a part of the body, if its condition be such as to prevent the workman from procuring and retaining employment requiring the use of the injured member, it may be said that a total loss of the use of the member has taken place.

This brings us to the question of whether appellant complied with Rule 274, T.R.C.P., providing that: “A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. Any complaint as to an instruction, issue, definition or explanatory instruction, on account of any defect, omission, or fault in pleading, shall be deemed waived unless specifically included in the objections * * * ”

Appellee contends that appellant is foreclosed from complaining of the charges used by the court by virtue of Rule 274 as he did not point out to the court distinctly the matter to which he objects and the grounds for his objection. Appellee argues that appellant merely requested a definition different from that which the court submitted citing Texas Employers Insurance Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000; Gulf Insurance Co. v. Vela, Tex.Civ.App., 361 S.W.2d 904, error ref., n. r. e.

We cannot agree with appellee and hold that the case must be reversed and remanded for trial.

In objecting to the definition in question, the appellant not only furnished the court with the requested definition but called the court’s attention to the specific case wherein the requested definition was required by the Supreme Court under the proper fact situation. A court of law can require no more than a case in point when a question of law arises. In a commentary on Rule 274 in Vernon’s Ann.Civ.Rules, former Chief Justice Alexander stated: “Courts of Civil Appeals should resort to the rule in order to justify an affirmance of the case only when the record discloses that the trial judge has been improperly imposed upon by the attorney who seeks the reversal.” There was no imposition on the Court here. Travelers v. Seabolt spoke for itself, was in point and should have been considered.

Appellant provided the court with more in requesting another definition then citing a case in point than McDonald requires in his Texas Civil Practice, Vol. 3, Sec. 12.29, p. 1143 wherein he states that if a generally worded objection is accompanied by a separately submitted request stating correctly the definition which by comparison shows the basis of the claimed error so that the trial court must have understood the basis of complaint, it should be held sufficiently specific. McDonald cites an opinion of this court in Eaton v. Klein, Tex.Civ.App., 174 S.W. 331, wherein the court states that the reason for the rule requiring the litigant to state his reason is that the court and the opposite party may understand the particular question of law that is presented for decision, and therefore, whenever it is apparent that the obj ection presents but one question, the reason for the rule and the rule itself cease to apply.

Appellant’s second point of error is predicated on the alleged introduction of improper evidence by appellee. In view of the probability that this case will be retried and the improbability of such an occurrence being repeated, we do not pass on this point.

The judgment of the trial court is reversed and the case remanded for trial in accordance with this opinion.

Reversed and remanded.

On Motion for Rehearing.

Appellee has pointed out that this Court’s opinion in the above styled case does not contain the trial court’s definition of total loss of use as was presented the jury. This definition was as follows:

“By the term ‘total loss of use’ of a member is meant that the member during any given period of time does not possess any substantial utility as a part of the body for the purposes of work.”

Appellee contends that this definition is substantially correct. We do not agree. While it may encompass the elements required by Travelers to a mind trained in these matters, it does not present these elements to a jury with sufficient clarity for them to understand the questions involved. This is especially true when the Supreme Court in Travelers precisely stated the correct definition which we are bound to require under the facts.

We overrule this point and all other points presented by Appellee in his motion for rehearing.

Motion is overruled.