author: SMITH, Justice.

text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Petitioner, v. Sudie SPILLARS et al., Respondents.
    No. A-9457.
    Supreme Court of Texas.
    May 22, 1963.
    Rehearing Denied June 20, 1963.
    Thomas G. Nash, Jr., Dallas, for petitioner.
    Mac L. Bennett, Jr., Normangee, Fulbright, Crooker, Freeman, Bates & Jawor-ski, M. W. Parse, Jr., with above firm, Houston, for respondents.
   SMITH, Justice.

This is a suit on a group credit life insurance contract issued by Republic National Life Insurance Company to the Farmers State Bank of Madisonville, Texas. The original action was brought by the Bank against the estate of J. D. Spillars, Sr., to recover on a promissory note. By stipulation the Bank relinquished its claim against Republic National in favor of the estate of J. D. Spillars.

Sudie Spillars, as temporary administrator of the estate of J. D. Spillars, Sr., filed this third-party claim against Republic National seeking to recover the sum of $5,000.00, together with penalty and attorney fees, upon the theory that the life of J. D. Spillars, Sr., was insured at the time of his death under a policy of group credit life insurance. Sudie Spillars et al. recovered on their cross action in a nonjury trial and in the Court of Civil Appeals. 363 S.W.2d 373. The judgments of the courts below are reversed, and judgment is here rendered for Republic National Life Insurance Company.

The facts leading up to the filing of this suit are as follows: In 1957 or 1958 J. D. Spillars, Sr., became indebted to the Farmers State Bank; this debt was still in existence on July 1, 1950, when the group creditor life insurance contract between the Farmers State Bank and the Republic National became effective.

On December 23, 1960, Spillars executed a note to the Bank in renewal of the prior existing debt in the amount of $8,052.92. No additional funds were advanced or loaned to J. D. Spillars, Sr. On that same date Spillars delivered to the President of the creditor bank a check in the amount of the premium for his coverage under the group policy. Spillars did not then have sufficient funds on deposit to pay the check, and the President temporarily held it in his desk. Later Spillars told the Bank President he realized he was overdrawn, but that he would take care of the check. The President testified that “he came back in here and told me that he was fixing to sell the calves and to go ahead and write the insurance; and I wrote the insurance on January 14th, at his request.” A certificate of insurance bearing the date of January 14, 1961, was issued to Spillars by the President of Farmers State Bank as the agent of Republic National. On January 17, 1961, three days after the issuance of the certificate of insurance, J. D. Spillars, Sr., died.

The controversy centers around the proper interpretation to be given the contractual provisions of the master policy issued to the Bank which relate to creditor coverage. The relevant provisions of the policy are as follows:

“Coverage: All debtors of the [Bank] * * *, whose respective names and amounts of indebtedness as of the effective date of this policy are submitted by the [Bank] to the Company * * *, shall be initially insured * * * on the effective date of this policy. * * * While this policy is in force, all new debtors * * * may likewise be insured hereinunder from the date they become new debtors of the [Bank].” (Emphasis added.)

It is undisputed in the record that: (1) on the effective date of the master contract, July 1, 1960, J. D. Spillars was a debtor of the Bank, and his name was not included as one of the debtors to be initially insured; (2) the note executed by J. D. Spillars on December 23, 1960, in favor of the Bank was given to renew a pre-existing indebtedness; (3) on the date of the execution of the renewal note the certificate of insurance was not issued, but that the same was issued on January 14, 1961; and (4) the language of the master policy is unambiguous.

Sudie Spillars et al. contend that the phrase, “from the date” controls and that a reasonable interpretation of that phrase in the above quoted contract provision is that any debtor may obtain the benefits of coverage at any time from and after the execution of the note evidencing the indebtedness and prior to the maturity date of such note while the debtor is not delinquent.

Republic National takes issue with this contention and takes the position that to give such phrase the interpretation placed on it by Sudie Spillars would permit the Bank to rescue itself from bad loans and dying debtors, thus destroying basic underwriting standards. It is Republic National’s position that since J. D. Spillars was not initially insured Sudie Spillars must establish that he was a new debtor on the date his creditor’s life policy was written in order to recover. Republic National contends that the status of a “new debtor” cannot be established for the reason that on the effective date of the master policy J. D. Spillars was a debtor of the Bank, and the renewal note did not create a new debt on the date of the renewal note. Therefore, since J. D. Spillars was not initially insured and since he was not a new debtor on the date of the execution of the renewal note, he was ineligible for coverage and Sudie Spillars et al. cannot recover under this policy. We agree with Republic National.

As a general rule contracts of insurance are to be strictly construed in favor of the insured, but this does not affect the further general rule that contracts of insurance are to be construed as other contracts, and that all parts of the contract are to be taken together, and such meaning shall be given to them as will carry out and effectuate to the fullest extent the intention of the parties. See: United American Insurance Company v. Selby, 161 Tex. 162, 338 S.W.2d 160, 84 A.L.R.2d 367. It is the duty of the Court to construe the meaning of the language used in a contract. Minnesota Mut. Life Ins. Co. v. Newman, Tex.Civ.App. (1941), 157 S.W.2d 667, wr. ref. want of merit.

Where, as here, an unambiguous writing is being construed, this Court will give effect to the intention of the parties as expressed or apparent in the writing. In the usual case the instrument alone will be deemed to express the intention of the parties, for it is objective and not subjective intent that controls. Ohio Oil Co. v. Smith, Tex., 365 S.W.2d 621. Thus, where the language of an insurance contract is plain, it must be enforced as made.

The master policy imposes two conditions precedent, either one of which must be met before insurance coverage can exist. The conditions are: (1) J. D. Spillars must have been initially insured as a debtor on the effective date of the policy; or (2) at the time of the execution of the note on December 23, 1960, he must have incurred a new debt and procured insurance coverage. Since J. D. Spillars was not initially insured, the creation of a new debt in order to support a status of a new debtor is the foundation upon which the eligibility of Spillars for insurance must stand or fall.

It cannot be said that Spillars was a new debtor on December 23, 1960, for the note he executed on that date was a renewal of a pre-existing indebtedness to the Bank. Thus, Sudie Spillars’ recovery cannot be upheld, for J. D. Spillars was not within the coverage of this policy. He was not a new debtor when he executed the renewal note.

The judgments of the courts below are reversed, and judgment is here rendered that Sudie Spillars et al. take nothing by their cross action.


source: Caselaw Access Project

author: HAMILTON, Justice.

license: Public Domain

text:
    Claire BENZ-STODDARD et al., Petitioner, v. ALUMINUM COMPANY OF AMERICA, Respondent.
    No. A-9137.
    Supreme Court of Texas.
    May 8, 1963.
    Rehearing Denied June 12, 1963.

      Waggoner Carr (Will Wilson), Attys. Gen., H. Grady Chandler, Linward Shivers, Asst. Attys. Gen., Austin, Carter, Gallagher, Jones & Magee, Dallas, William E. York, McAllen, Hart & Hart, Austin, for petitioners.
    Vinson, Elkins, Weems & Searls, H. Raybourne Thompson, James E. Allison, Jr., James W. McCartney, with above firm, Houston, Clark, Thomas, Harris, Denius & Winters, James H. Keahey, with above firm, Austin, for respondents.
   HAMILTON, Justice.

This is a suit brought by Aluminum Company of America to cancel a Railroad Commission order granting a Rule 37 exception permit to prevent confiscation of the minerals underlying Claire Benz-Stoddard’s .115-acre town lot. The trial court sustained special exceptions to the petition and, when Aluminum Company refused to amend, dismissed on the ground that the petition did not state a cause of action for cancellation. The Court of Civil Appeals reversed and remanded. Tex.Civ.App., 357 S.W.2d 809. Claire Benz-Stoddard and the Railroad Commission are petitioners.

We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

Since this case comes to us on a special exception in the nature of a general demurrer we must accept respondent’s allegations as true. The allegations are as follows:

Underlying Claire Benz-Stoddard’s .115-acre tract are ten vertically separated gas reservoirs, or horizons, among which there is no communication of gas. Multiple completion techniques make it possible to produce gas from as many as six of these reservoirs through only one well bore. The Commission’s order granted Claire Benz-Stoddard’s request for permit to drill one well and to make multiple completions in as many reservoirs as were productive. The order recites that the permit is granted to prevent “confiscation and/or waste”, but the parties agree that there was no issue of waste in this case, only of confiscation. Respondent alleged that because of the pro-ration order in effect at this field at the time the permit was granted of the allowable allocated on a per well basis and ¾ allocated on a per acre basis), a single completion well during its life would make it possible for petitioner to recover more than her equivalent of the minerals in place in all ten reservoirs under her land, thus would fully protect her against confiscation. Respondent further alleged that petitioner has in fact made triple completions and has already recovered more than seven times the gas in place beneath her tract in all ten reservoirs, 84%' of which has been drained from respondent’s portion. Respondent did not allege that petitioner has access to any one of the ten reservoirs by means of another well on another tract. Respondent alleged that this was a voluntary subdivision but expressly waived and abandoned that allegation before the trial court.

The Court of Civil Appeals held that petitioner was entitled to an opportunity to recover the equivalent of her share in the ten reservoirs beneath her tract — not the specific minerals — and that since under the proration order in effect at the time the permit was granted she could with a completion in only one reservoir recover more than enough gas to make up her equivalent in all ten reservoirs, she was as a matter of law not entitled to multiple completions. In support of this holding the Court of Civil Appeals cites Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73; Atlantic Refining Co. v. Railroad Commission of Texas, 162 Tex. 274, 346 S.W.2d 801; Railroad Commission of Texas v. Williams, Tex., 356 S.W.2d 131; and Halbouty v. Darsey, 326 S.W.2d 528 (Tex.Civ.App.1959), writ ref’d n. r. e.

Petitioner Claire Benz-Stoddard contends that it is immaterial that she could with one completion recover from a single reservoir an equivalent of her fair share of the gas in all ten reservoirs lying beneath her tract. She further argues that if allowing multiple completions will cause unreasonable drainage of respondent’s lands, respondent has recourse by way of attack on the proration order, not by attack on the exception permit.

Respondent argues that our decisions in Williams, supra, and Coloma Oil & Gas Corp. v. Railroad Commission of Texas, Tex., 358 S.W.2d 566, compel us to hold that once it has been shown that a single completion will afford petitioner an opportunity to recover her fair share of the gas in all ten reservoirs, there is not as a matter of law substantial evidence to support a finding of necessity for multiple completions to prevent confiscation. In other words, respondent contends the Commission must treat petitioner’s fair share of the gas in ten separate reservoirs as if it were all contained in one reservoir. Respondent does not contend that Claire Benz-Stoddard is not entitled to a “first well”, only that she is not entitled to completions in more than one reservoir.

The question before us is: Where a tract of land overlies several vertically separated gas reservoirs, shall the Railroad Commission, in applying the exception to Rule 37, treat the several reservoirs separately or as one? We hold that the Railroad Commission was correct in treating them separately and therefore the facts alleged by respondent do not state a cause of action for cancellation of the permit allowing multiple completions.

Petitioner Claire Benz-Stoddard has mineral property in ten separate reservoirs and is entitled to a Rule 37 exception permit in each reservoir if she has shown that confiscation will result. We must presume that the Railroad Commission has found that confiscation would result. Article 6049c, Vernon’s Ann.Tex.St. Respondent does not allege that there will be no confiscation in each reservoir when considered separately.

The Williams and Coloma cases, supra, upon which the Court of Civil Appeals relies, do not support respondent’s contention here. We wish to point out that in each of those cases this court held in effect that the applicant for the exception to Rule 37 already had a well within the same reservoir and drainage area as the second tract for which the permit was sought, and that the well already in existence could produce and drain from the second tract the oil or the equivalent of the oil in place under such tract, and that the second well was not necessary to prevent confiscation of applicant’s oil in the common reservoir. The distinction is simple. In each of those cases there was one common reservoir, while in the case before us there are several separate reservoirs.

We think that Article 6008, V.A.T.S., which authorizes the Railroad Commission to regulate the production of gas contemplates that the Railroad Commission will treat reservoirs of gas underlying the same tract of land separately. Section 4(a), reads as follows:

“If oil and/or gas be produced through different strings of casing set in the same well bore, the inner string through which oil and/or gas be produced shall be regarded as one well, and each successive additional string of casing through which oil and/or gas shall be produced, from a different producing horizon, the others producing through the same well bore, shall be regarded as another well.”

We think this section authorizes the Railroad Commission to treat a completion in each reservoir as a “first well”. In Section 12, Article 6008, we find this language:

“The monthly reservoir allowable shall be allocated among all wells entitled to produce gas therefrom so as to give each well its fair share of the gas to be produced from the reservoir, * * (Emphasis added.)

The granting or denial of a Rule 37 exception permit in a “first well” situation has never been held to depend upon the quantity of gas which may be allowed to be produced from the well or whether the granting of such permit may result in drainage from adjoining owners. See Atlantic Refining Co. v. Railroad Commission of Texas, 330 S.W.2d 494 (Tex.Civ.App.19S9), writ ref’d n. r. e.; Halbouty v. Darsey, 326 S.W.2d 528 (Tex.Civ.App.1959), writ ref’d n. r. e.; Foster v. Railroad Commission, 326 S.W.2d 533 (Tex.Civ.App.1959), writ ref d n. r. e.

We realize that the granting by the Railroad Commission of the multiple completion order under the general proration order in effect in the field does create a situation in which grave injustice may be done the respondent. However, we do not feel that the solution of the problem lies in denying the application of the exception to Rule 37 to each separate reservoir underlying petitioner’s land. In the case of Brown v. Humble Oil & Refining Company, 126 Tex. 296, 83 S.W.2d 935, at page 944, this court, in discussing the validity of Rule 37 said:

“Conditions may arise where it would be proper, right, and just to grant exceptions to the rule so as to permit wells to be drilled on smaller tracts than prescribed therein. * * * but in all such instances it is the duty of the commission to adjust the allowable, based upon the potential production, so as to give to the owner of such smaller tract only his just proportion of the oil and gas. * * *
“ * * * This right to control the rate of flow in order to prevent waste also enables the commission to offset the advantage obtained by one who is-given an exception to the spacing rule by limiting his allowable production to the extent necessary to overcome this advantage. In this way the commission, by controlling the oil stored in the common reservoir, is enabled to carry out the dominant purpose of preventing waste, and, at the same time, permit each owner to enjoy the opportunity fully to realize upon his estate by developing and recovering his oil and gas. We therefore hold that the Railroad Commission has the power, under the conservation statutes, to promulgate a spacing rule, as was done, regulating the drilling of oil wells, and to provide for an exception to the rule to protect vested rights and to prevent waste; and the exception to the rule is not too uncertain or indefinite so as to render the rule invalid. . No unreasonable hardships need result, if the rule is faithfully and impartially applied by those authorized by law to administer it.”

It can be seen that the very validity of Rule 37 and the exception thereto is based upon the principle that the Railroad Commission can so regulate the flow of the gas that no unreasonable hardship need result from its application. This court reiterated this principle in Atlantic Refining Company v. Railroad Commission of Texas, 162 Tex. 274, 346 S.W.2d 801, and Halbouty v. Railroad Commission of Texas, Tex., 357 S.W.2d 364.

We hold, therefore, that since the Commission is authorized to treat each completion in a separate reservoir as a separate well, it may grant multiple completions in each reservoir in which it finds there will be confiscation. The allegation that under the existing proration order petitioner will recover more gas from her land through one completion than underlies her land in all the reservoirs does not amount to a denial of the presumed finding by the Commission that there will be confiscation in each reservoir.

We therefore reverse the judgment of the Court of Civil Appeals and affirm that of the trial court dismissing respondent’s cause of action.


author: WALKER, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. ELMORE & STAHL, Respondent.
    No. A-9323.
    Supreme Court of Texas.
    May 15, 1963.
    Rehearing Denied June 12, 1963.

      Sharpe & Hardy, Brownsville, for petitioner.
    North, Blackmon & White, Corpus Christi, for respondent.
   WALKER, Justice.

On the only question presented by this appeal, we hold that after a shipper of inanimate perishables by common carrier railroad in interstate commerce has made a prima facie case of carrier liability, the carrier may not exonerate itself by showing that all transportation services were performed without negligence but must go further and establish that the loss or damage was caused by one of the four excepted perils recognized at common law.

Elmore & Stahl, respondent, brought this suit against Missouri Pacific Railroad Company, petitioner, to recover for alleged damage to three shipments of honeydew melons and one shipment of green peppers. The petition contains four separate counts, each relating to one of the shipments. Trial was to a jury and resulted in judgment on the verdict in respondent’s favor on all four counts. The Court of Civil Appeals affirmed the judgment of the trial court as to Count I, but reversed such judgment and remanded the cause as to Counts II, III, and IV. 360 S.W.2d 839.

We are concerned here only with Count I. Respondent sought thereby to recover for damage to 640 crates of honeydew melons shipped in Car ART 35042 from Rio Grande City, Texas, to Chicago, Illinois. In response to the first three special issues, the jury found: (1) that at the time the bill of lading was signed the melons were in such condition that, based upon the orders given by the shipper to the carrier and the reasonable performance of such orders by the latter, they would have been reasonably expected to arrive at destination in good merchantable condition; (2) that upon arrival at destination the melons were in a worse condition than would reasonably have been anticipated on the basis of their condition at the time the bill of lading was signed, the orders given by the shipper to the carrier, and the reasonable performance of such orders by the carrier; and (3) that petitioner and its connecting carriers performed without negligence the transportation services as provided by the terms and conditions of the bill of lading and as instructed by the plaintiff, and in a reasonably prudent manner as to matters not covered by such bill of lading or instructions. The jury refused to find- that the condition of the melons upon arrival in Chicago was due solely to inherent vice or to the carrying out of respondent’s instructions for handling the shipment. “Inherent vice” as defined in the charge included “the inherent nature of the commodity which will cause it to deteriorate with a lapse of time.”

Under the general common law rule, a shipper of goods by common carrier makes a prima facie case of carrier liability by showing that the shipment was in good condition when delivered to the carrier at place of origin and in damaged condition when delivered by the carrier at destination. The carrier may then escape responsibility for the damage only by showing that it was caused solely by one or more of four excepted perils: (1) an act of God; (2) the public enemy; (3) the fault of the shipper, or (4) the inherent nature of the goods themselves. Where the loss is not due to one of these specified causes, it is immaterial whether the carrier has exercised due care or was negligent. See Commodity Credit Corporation v. Norton, 3rd Cir., 167 F.2d 161; 13 C.J.S. Carriers § 71, p. 131. Some courts have held, however, that the general rule does not apply to shipments of livestock, and that the carrier may escape liability for damage thereto by showing the absence of negligence on its part. See Panhandle & S. F. Ry. Co. v. Wilson, Tex.Civ.App., 135 S.W.2d 1062 (wr. dis.).

No attack has been made on the jury findings in this case, and petitioner does not say that the damage to the melons was caused by one of the excepted perils mentioned above. It argues that carrier liability for damage to an interstate shipment of inanimate perishables is determined by the rule applicable to livestock, and that it has been exonerated by the jury’s finding in response to Special Issue No. 3. Respondent insists and the Court of Civil Appeals held that the case is governed by the general common law rule. The judgment of the trial court was affirmed because petitioner did not bring itself within one of the recognized common law exceptions.

According to American Jurisprudence, no distinction is made in most jurisdictions “as respects the application of the common-law rule of liability for the safe transportation and delivery of inanimate property, on the basis of its nature or character as perishable or nonperishable. In some jurisdictions, however, it is held that the common-law rule of liability as an insurer does not apply in the case of perishable goods and that liability for the loss or injury thereof depends in all cases upon negligence.” 9 Am.Jur. Carriers § 693, p. 841. See also Annotation, 115 A.L.R. 1274. Perhaps the leading authority supporting the latter view is Southern Pac. Co. v. Itule, 51 Ariz. 25, 74 P.2d 38, 115 A.L.R. 1268. The rule there laid down was recognized as sound in Texas & Pac. Ry. Co. v. Empacadora de Ciudad Juarez, Tex.Civ.App., 309 S.W.2d 926 (wr. ref. n. r. e.). The parties here agree, however, that the liability of a carrier for damage to an interstate shipment is a matter of Federal law to be determined by the Federal statutes and decisions.

The general common law rule of carrier liability has long been recognized and applied by the Federal courts. See Galveston Wharf Co. v. Galveston, H. & S. A. Ry. Co., 285 U.S. 127, 52 S.Ct. 342, 76 L.Ed. 659; Commodity Credit Corp. v. Norton, supra; Compania De Vapores Insco, S. A. v. Missouri Pacific R. Co., 5th Cir., 232 F.2d 657; Lehigh Valley R. Co. v. State of Russia, 2nd Cir., 21 F.2d 396; Reider v. Thompson, 116 F.Supp. 279. In Schnell v. The Vallescura, 293 U.S. 296, 55 S.Ct. 194, 79 L.Ed. 373, which was a suit in admiralty to recover for damage resulting from decay of a shipment of onions, the Supreme Court of the United States discussed the rule which requires the carrier to establish that the loss was due to some excepted peril, and said:

“The reason for the rule is apparent. He is a bailee entrusted with the shipper’s goods, with respect to the care and safe delivery of which the law imposes upon him an extraordinary duty. Discharge of the duty is peculiarly within his control. All the facts and circumstances upon which he may rely to relieve him of that duty are peculiarly within his knowledge and usually unknown to the shipper. In consequence, the law casts upon him the burden of the loss which he cannot explain or, explaining, bring within the exceptional case in which he is relieved from liability.”

Petitioner directs our attention to the provisions of the Carmack Amendment that any common carrier shall be liable “for any loss, damage, or injury * * * caused by it or by any common carrier * * * to which such property may be delivered.” 49 U.S.C.A. § 20(11). This statute does not alter or modify the basic common law rule of carrier liability with which we are here concerned. See Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U.S. 319, 36 S.Ct. 555, 60 L.Ed. 1022; Secretary of Agriculture v. United States, 350 U.S. 162, 76 S.Ct. 244, 100 L.Ed. 173. Petitioner also relies on Rules 130 and 135 of the Perishable Protective Tariff No. 17, which are quoted in the margin, and has cited a number of cases where the courts have said that these rules operate to limit the carrier’s liability.

The reasoning of the courts in some cases is obscured by declarations that the carrier is or is not an insurer, and by statements indicating that the shipper, by establishing delivery to the carrier in good condition and receipt at destination in damaged condition, makes out a prima facie case of negligence on the part of the carrier. Where the common law rule is strictly enforced, the carrier is not an insurer with respect to damage caused solely by one of the excepted perils, but its responsibility is similar to that of an insurer in so far as other risks are concerned. And as pointed out in Chesapeake & O. Ry. Co. v. Thompson Mfg. Co., 270 U.S. 416, 46 S.Ct. 318, 70 L.Ed. 659, the so-called presumption of negligence is not a presumption at all but is a rule of substantive-law under which the carrier is liable for failure to transport safely unless the loss or damage is due to one of the specified causes.

As we construe Rules 130 and 135, they simply provide that by furnishing protective services the carrier does not undertake to overcome the inherent tendency of perishable goods to deteriorate or decay, and will not be responsible, in the absence of negligence, for damage due to the fault of the shipper or the inherent nature of the goods themselves. The cases upon which petitioner relies do not hold otherwise. For example, specific acts of negligence were alleged by the plaintiff in Atlantic Coast Line R. Co. v. Georgia Packing Co., 5th Cir., 164 F.2d 1, and it was held that proof of compliance with the shipper’s instructions constituted a defense to the allegations of negligence in the furnishing of protective services. In Delphi Frosted Foods Corp. v. Illinois Central R. Co., 6th Cir., 188 F.2d 343, the shipper failed to establish that the fruit was in good condition when delivered to the carrier. While the Court of Appeals for the Fifth Circuit has observed that damage resulting from breakage of crates is different from spoilage due to inherent vice, it did not say that the carrier may exonerate itself without establishing that the case falls within the latter exception. See Yeckes-Eichenbaum, Inc. v. Texas Mexican Ry. Co., 5th Cir., 263 F.2d 791. In considering whether the shipper had shown negligence on the part of the carrier in Chesapeake & O. Ry. Co. v. Thompson Mfg. Co., supra, the court was concerned only with the right of the plaintiff to maintain suit without having given prior written notice of the claim. The applicable statute provided that such notice would not be required if the goods were damaged in transit by carelessness or negligence.

The concluding portion of the opinion in Trautmann Bros. v. Missouri Pac. R. Co., 5th Cir., 312 F.2d 102, seems to support petitioner’s position, but the entire opinion must be read in the light of the trial court’s findings. The shipper there prepared the car by using electric fans and thus melted ice which was required for refrigeration. The carrier was not notified of this action, with the result that the ice supply was not replenished, and many of the melons were found to be overripe and spoiled when they were unloaded at destination. Under these circumstances the trier of fact could well conclude, as he did, that the overripe condition of the melons was caused by excepted perils, i. e., the inherent nature of the perishables and the failure of the shipper to notify the carrier of the manner in which the car was prepared. Although the Court of Appeals referred to the Itule case in a footnote, its decision appears to be simply another application of the rule, as stated in the opinion, that “[s]o long as the carrier has discharged its duty of reasonable care, it is * * * not liable for damages occasioned solely by the inherent nature, or vice, of the goods themselves” or “for damages caused solely by the acts or directions of the shipper.”

The so-called livestock rule is based, at least in part, upon considerations which have no application in the case of inanimate perishables. We know that honeydew melons do not have the propensities of Brahma cattle, and are not likely to bite each other or kick the slats out of crates. Petitioner apparently recognizes that the rule it urges us to adopt would not be applicable where the carrier had failed to deliver a shipment of perishables, or in case of bruising, crate breakage or damage by fire. It seems to be saying that when the claim is for spoilage or decay, the carrier should have the benefit of a presumption that the damage was due solely to natural deterioration. We do not agree.

Neither the Congress nor the Federal courts have declared that the liability of a common carrier for damage to inanimate perishables may be predicated only upon negligence. The shipment in the present case was made under a Uniform Straight Bill of Lading which, unlike the Uniform Live Stock Contract prescribed by the Interstate Commerce Commission, states that the carrier shall be liable as at common law except as therein provided. The bill of lading then stipulates that the carrier shall not be liable for loss or damage caused by certain excepted perils, but there is no provision exempting it from liability for damage to perishables not caused by its own negligence. From a consideration of the terms of the bill of lading and the general common law rule as recognized and applied by the Federal courts, it seems clear to us that the Court of Civil Appeals properly refused to follow the Itule case. A common carrier is not responsible for spoilage or decay which is shown to be due entirely to the inherent nature of the goods, but petitioner has not established that the damage in this case was caused solely by natural deterioration.

The judgment of the Court of Civil Appeals is affirmed.

      . “RULE 180—CONDITION OF PERISHABLE GOODS NOT GUARANTEED BY CARRIERS.—Carriers furnishing protective service as provided herein do not undertake to overcome the inherent tendency of perishable goods to deteriorate or decay, but merely to retard such deterioration or decay insofar as may be- accomplished by reasonable protective service, of the kind and extent requested by the shipper, performed without negligence.”

        “RULE 135—LIABILITY OF CARRIERS.—Property accepted for shipment under the terms and conditions of this tariff will be received and transported subject to such directions, only, and to such election by the shipper respecting the character and incidents of the protective service as are provided for herein. The duty of the carrier is to furnish without negligence reasonable protective service of the kind and extent so directed or elected by the shipper and carriers are not liable for any loss or damage that may occur because of the acts of the shipper or because the directions of the shipper were incomplete, inadequate or ill-conceived.”


author: BELCHER, Commissioner.

text:
    Bobby Ray MARONEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35416.
    Court of Criminal Appeals of Texas.
    March 6, 1963.
    Rehearing Denied April 10, 1963.
    Second Motion for Rehearing Denied June 5, 1963.
    Lawrence Arnim, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zgou-rides and Bill White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is driving while intoxicated; the punishment, thirty days in jail and a fine of $500. ,

Officer Shine, of the Houston Police Department, testified that he saw the appellant driving an automobile upon a public street at a rate of speed as high as seventy miles per hour. While his pursuit of the appellant was halted momentarily by congested traffic conditions he heard the sound of screeching tires and the impact of metal; that after traveling further on the street he saw the appellant trying to start his car, that appellant told him of an accident which Officer Shine saw evidence of on the street and appellant’s car. Officer Shine further testified that appellant had the odor of alcohol on his breath; that his eyes were bloodshot, his speech not clear and his walk unsteady, and expressed the opinion that the appellant was intoxicated.

Pursuant to appellant’s request a blood specimen was taken from him at Jefferson Davis Hospital. An analysis of the specimen showed an alcoholic content of 0.15 per cent. Proof was offered that any person having such percentage of alcohol in his blood would be intoxicated.

Officers Campbell and Rambie testified that in their opinion the appellant was intoxicated when they saw him at the scene of his arrest.

Testifying in his own behalf, the appellant admitted drinking three highballs and a beer before his arrest, but denied being intoxicated when arrested.

By informal bill of exception the appellant complains of the overruling of his amended motion for new trial based upon jury misconduct.

The amended motion alleged that during the jury’s deliberations Juror Bez-dek stated that the appellant would lose his driver’s license, then Juror Newsome, the foreman, said that the appellant could go to Louisiana and get a driver’s license, and that such statements were outside of the evidence introduced on the trial.

He also complains of a juror’s statements about two cases of driving while intoxicated in which the minimum punishment of three days and fifty dollars was assessed, and that in one of the cases the defendant had a wreck. Further, that one of the jurors asked another, “If the appellant ran over one of your loved ones and killed them would you still think that he should only have three days in jail?” Also, that Juror Kinzbach stated that if she had known that the appellant was only an ordinary car salesman, instead of her impression that he was a salesmanager of a large automobile firm, she would have questioned the advisibility of the extent of the punishment assessed.

In support of the amended motion the appellant attached the affidavits of Jurors Bezdek and Kinzbach.

The state in controverting appellant’s amended motion attached the affidavit of Foreman Newsome. His affidavit states in substance that Jurors Bezdek and Kinz-bach were concerned about appellant’s family and the loss of his job, that they did not want to assess any jail time, but Bezdek suggested that appellant could serve three days on a week end.

On the hearing Jurors Bezdek and Kinz-bach were examined chiefly by the use of their affidavits, and Juror Newsome’s affidavit was introduced in evidence by the state.

Art. 6687b, Sec. 24, R.C.S., provides that the license of any person shall be automatically suspended upon final conviction for the offense of driving while intoxicated. Hence, the juror made no incorrect statement. The arresting officer testified that when he asked the appellant for his license, the appellant gave him an expired driver’s license.

The argument and reasons advanced in the statements of the jurors during their deliberations did not violate any statute and were not so obviously improper or patently untrue as to call for a reversal of this conviction.

It is concluded that the trial court did not abuse his discretion in overruling the motion for new trial. Berry v. State, 159 Tex.Cr.R. 492, 265 S.W.2d 86.

The judgment is affirmed.

Opinion approved by the Court.


author: BELL, Chief Justice.

text:
    Munson H. TIX, Independent Executor of the Estate of Cecile Tix Smith, Deceased, Appellant, v. EMPLOYERS CASUALTY COMPANY, Appellee.
    No. 14071.
    Court of Civil Appeals of Texas. Houston.
    May 9, 1963.
    Rehearing Denied May 30, 1963.

      Barker, Barker & Coltzer, Jerry D. Barker, Galveston, for appellant.
    Royston, Rayzor & Cook, Galveston, Bryan F. Williams, Jr., Edward J. Patterson, Jr., Galveston, of counsel, for appellee.
   BELL, Chief Justice.

Cecile Tix Smith was the assured in an accident insurance policy under which ap-pellee agreed to pay $10,000.00 if death resulted to her “directly and independently of all other causes from bodily injury caused by accident and sustained by assured while in or upon, or while entering’ into or alighting from * * * an automobile.” She died from an acute heart failure on December 11, 1959, while she was in her automobile. Her executor brought suit to recover the proceeds of the policy on the theory that her death resulted from bodily injuries caused by accident directly and independently of all other causes. Trial was to a court without a jury. The court finding that death did not result directly and independently of all other causes from bodily injuries caused by accident, rendered judgment that appellant take nothing.

The position of appellant is that the undisputed evidence shows Mrs. Smith died from bodily injuries caused by accident, directly and independently of all other causes, and the court should have so held as a matter of law. The basis of such contention is that while Mrs. Smith was in bad health generally and had a very bad heart condition, the precipitating cause of her death, according to the testimony of the doctors, was an incident in which she was placed under emotional strain and physical exertion which caused her to have an acute cardiac failure. He says the heart failure was an undesigned, unforeseen and unexpected result of her activity and death was therefore accidental. While her heart was in a diseased condition, this does not prevent her death from resulting directly and independently of all other causes when the precipitating cause of death was an accidental one. His position is that the deceased might have lived indefinitely or might have died at any time but she died at the time she did because of the emotional and physical strain she was placed under by the hereinafter stated incident.

The position of appellee is that there was a difference of opinion as to the proximate cause of Mrs. Smith’s death, and different reasonable inferences could be drawn from the evidentiary facts, and it was within the province of the trial court as the trier of the facts to determine whether her death resulted directly and independently of all other causes from accidental bodily injuries. It says there was evidence of probative force to support the trial court’s finding of facts No. 11 that her death did not result directly and independently of all other causes from bodily injuries received from an accident.

We, therefore, have before us the question of whether there is any evidence of probative force supporting the trial court’s finding that her death did not result directly and independently of all other causes from bodily injuries caused by an accident. While appellant briefs the question as to whether there was bodily injury caused by an accident or resulting from accidental means, the appellee’s position seems to be that assuming bodily injuries resulted from an accident [They do not expressly make any such concession], the evidence supports the trial court’s conclusion that such injuries were not the sole cause of death. We do not, therefore, discuss the meaning of accidental and accidental means.

In determining whether there is evidence of probative value to support a finding of fact, we must examine the evidence and view it most favorably to that finding and draw all reasonable conclusions therefrom. If so viewing the evidence and drawing such reasonable inferences we conclude that a reasonable mind could reach the conclusion reached by the trier of the facts, then there is evidence of probative force and we may not disregard such finding and render judgment contrary to it.

We must review the evidence. Mrs. Smith, on December 11,1959, the date of her death, was 66 years of age. On such date Mrs. Smith met a friend, Mrs. Gremillion, as-Mrs. Smith was coming out of Woolworth’s store in Galveston. They had a brief conversation-and Mrs. Smith seemed to Mrs. Gremillion to be as well as Mrs. Gremillion had- seen her during the previous few months.- Mrs. Smith then got into her automobile that was parked at the curb in front of Woolworth’s, and Mrs. Gremillion entered the store. As Mrs. Gremillion entered the store she heard a crash, which noise was made by Mrs. Smith backing her automobile into the automobile that was parked behind hers. As a result the rear bumper of Mrs. Smith’s automobile became locked with the front bumper of the automobile behind her. Mrs. Smith got out of her automobile and Mrs. Gremillion came out of the store. Mrs. Smith was provoked at herself for causing this and she was excited. Mrs. Smith got into her car and drove forward slightly to try to unhook the bumpers, but did not succeed. Mrs. Gremillion got upon the back bumper to hold it down and Mrs. Smith drove her car forward one time while Mrs. Gremillion stood on the bumper, but the bumpers did not come unhooked. Mrs. Smith got out of her car again and looked at the bumpers. Mrs. Smith seemed worried for fear Mrs. Gremillion might fall off the bumper and be hurt. A young pedestrian came by and offered assistance. Mrs. Smith got back into her car, started the motor and drove forward while the young man lifted on the bumper of her car. The bumpers became unhooked. Mrs. Smith then got out of her car and looked at the car behind her to see if she had caused any damage. She then got into her car and started to drive it out into the lane of traffic. At this time her face was red and she seemed to be in a hurry. She crashed into the car ahead of her and was found slumped over the steering wheel. She was dead. Her car was still in the parking lane.

Mrs. Smith, for many years, had been under the care of Dr. McLarty. She was first treated for cancer and later for a bad heart condition. At the time of her death she was taking digitalis, diuretics, sedatives and .dilators. Her condition was such that she could die at any time without there being any discernible stimulus. She could die while sitting in a chair. She could die in her sleep. She could die from walking up a short flight of stairs. Dr. McLarty had advised her to get an automobile with power steering because he was afraid she would die while driving her car and hurt someone. Her car did not have power steering. In the past few years of her life she had had blackout spells. The worst one was in early September, 1958. From September until the time of her death' she had had 6 to 12 minor blackout spells. Dr. McLarty had last seen her in September of 1959, though he talked with her thereafter. In the last few months of her life she had greatly improved, Dr. McLarty thought.

In 1941 there was a malignancy in Mrs. Smith’s right breast and the breast was removed. Thereafter she was treated with x-ray. Six years later the left breast was removed and there followed extensive x-ray treatment. Some time later she came to Dr. McLarty with two or three fractured ribs. These fractures were caused by cancer. In about 5 years, after treatment with male hormones, the ribs healed. Dr. McLarty watched her for the cancerous condition right up to the last few years of her life. Some time after the fracture of the ribs, she developed some cancer of the blood vessels in her arms. Dr. McLarty did some radical excisions and some plastic work. He doesn’t know why, but this last condition did get well. He thought she became free of cancer in 1957. He also took further x-rays in 1959. He did this because he was watching her condition pretty closely. She had shortness of breath, certain pains, and her heart would bother her. Beginning in 1957 her shortness of breath began. Her pulse would get rapid. He put her on, medication to dilate her blood vessels and get better ventilation in the heart muscle. She was nervous and she went from bad to worse and he gave her something to quiet her down. When she would just move her head from side to side her pulse would become rapid. Listening to her heart “was the screwiest thing; it was sort of a gallop rythm.” She did not have proper lung capacity because of scar tissue. This scar contraction was caused by the x-ray treatment. The sack around the heart was pulled a little. He had informed her that her life was limited. She was a widow, living alone, and at one time he sent someone to stay with her because of her condition.

On the death certificate Dr. McLarty showed: “left ventricular fibrillation as producing immediate death and it was due to mechanical traction on pericardium from sclerosis left lung from x-ray therapy — 18 years history.” Dr. McLarty was asked if after reviewing the autopsy report of Dr. Thoma he reached any different conclusion as to the cause of death from what he put on the death certificate. He then stated: “No, it’s impossible to state.” At one point in Dr. McLarty’s testimony he was asked his opinion as to the precipitating cause of Mrs. Smith’s death based on a hypothetical question asked by Mr. Barker, appellant’s counsel, which incorporated the facts established about the locked bumper incident. He answered that it was the exertion used in the incident. Immediately thereafter he was asked by Mr. Barker what effect the excitement and concern over her situation had and Dr. McLarty answered: “I don’t think I could say — can answer that.” At another point he stated in his opinion the exertion triggered off the heart condition that produced cardiac failure. Then he stated he thought the emotion aroused by being caught in the trap and the exertion together brought on her death.

Dr. McLarty testified Mrs. Smith was taking medicine for her heart at the time of her death. She had asked him if she could quit taking it and he told her she could not and saw to it that the prescriptions were refilled by her. He further stated the scar tissue makes one miserable. Mrs. Smith’s left lung was not working at all. The air was all coming from the right lung. It was so overworked the air sacks were dilated. Too, the fractures of the ribs hampered her. He didn’t want her to exert herself. Dr McLarty at one point testified Mrs. Smith died because of a pre-existing condition in her heart. The exertion and excitement shown would not affect a normal person. Her heart stopped either because of disease in her heart or something went wrong mechanically. At another point Dr. McLarty testified he could not say exertion was the sole cause of death. The death certificate made no mention of exertion as the cause of death. The blanks on the death certificate relating to accident or injury causing death were not filled out.

Dr. Thoma performed an autopsy on Mrs. Smith. He found the left lung considerably shrunk, scarred and fibrous, and the heart moderately enlarged. The coronary arteries were smooth and open. He found areas of fat where the muscle of the heart had died out and was replaced by fat. There were scattered clumps of lymphocytes in the muscle indicative of a chronic inflammatory process. There was chronic inflammation of the lung due to x-ray treatment. Death was due to acute cardiac failure due to idiopathic myocarditis. Idiopathic is a term indicating cause is not known. It is chronic inflammation of the heart muscle. The cause may have been the x-ray. The effect is to produce an unstable heart condition — like a person has had a previous severe heart attack. There was fat on the liver. Dr. Thoma testified Mrs. Smith’s cardiac status was such that any immediate previous aggravating or undue activity would be apt to precipitate acute heart failure. It was his opinion that the incident described could reasonably be expected to produce enough mental and physical strain to surpass the minimum amount of cardiac reserve Mrs. Smith had. This would result in acute heart failure. There were no contusions, abrasions, or cuts on the body to indicate any traumatic application to the body. No ill effect would have resulted to a person with a normal heart. Death resulted within two to four minutes after the onset of the attack. Mrs. Smith’s tolerance was low. It is possible that she could have died without any effect from the little collision. If she had not had the heart condition, he would not expect the amount of exertion shown here to kill her. The inflammation of the heart muscle is a continuing process that over a period of time more substantially affects the proper functioning of the heart. The exertion described could not have caused the death of Mrs. Smith in the absence of the diseased condition she had.

We have reached the conclusion that there was evidence of probative force to support the trial court’s conclusion that death was not the result directly and independently of all other causes of bodily injuries resulting from accident.

The burden of proving "that death resulted from bodily injuries caused by accident, directly and independently of all other causes, was on appellant. Robinson v. Aetna Life Ins. Co., 276 S.W. 900 (Com.App.); Standard Life & Accident Ins. Co. v. Roberts, 318 S.W.2d 757 (CCA), writ dismissed; American Casualty Co. v. Jones, 146 S.W.2d 423 (CCA), no writ history; Metropolitan Life Ins. Co. v. Funderburk, 81 S.W.2d 132 (CCA), writ dism.; Commonwealth Casualty and Ins. Co. v. Laurence et al., 223 S.W.2d 337 (CCA), no writ history; Worley v. International Travelers Assur. Co., 110 S.W.2d 1202 (CCA) writ dism.

Appellant says he discharged that burden and established as a matter of law that death resulted to Mrs. Smith from accidental bodily injuries directly and independently of all other causes. The basis of such contention is that both doctors testified that in their opinion the excitment and exertion caused by the locked bumper incident were the precipitating causes of acute heart failure. He urges that though Mrs. Smith had a very diseased heart which could have caused her death at any time without any noticeable stimulus, such was a mere condition upon which the strain caused by excitement and exertion operated, and this does not preclude recovery.

While both doctors did testify at one point in their testimony that' in their opinion the exertion and excitement generated by the incident of Mrs. Smith trying to get her car out of the parking lane was the precipitating cause of her death, at other points in their testimony the effect of their statement of the precipitating cause was weakened, as a reading of their testimony recited above will reflect. On the death certificate which is prima facie evidence of cause of death the doctor showed acute heart failure and left blank the portion of the certificate calling for an answer concerning injury or accident However, assuming an undiluted and un-contradicted expression of opinion by them as to the precipitating cause, it remains purely opinion evidence and the trier of the facts is not bound by such testimony. Metropolitan Life Insurance Co. v. Funderburk, supra; Hood v. Texas Indemnity Co., 146 Tex. 522, 209 S.W.2d 345 (S.Ct.); Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 (S.Ct).

Where the policy of insurance provides, as does the one here involved, that there is liability only if death is produced by bodily injuries resulting from accident directly and independently of all other causes, we must seek the proximate cause of death. If some other cause was the proximate cause of death and the accidental bodily injuries are merely a remote cause, there cannot be recovery. It is of course settled in this State that the mere fact that a deceased person was ill and was in a weakened condition so that he was more susceptible to effects from bodily injury will not prevent recovery where the efficient cause of death was the bodily injuries. For instance, if a person has a thinner skull than is normal so he is more susceptible to a skull fracture, such fact will not prevent recovery where the skull is fractured. Though he has arteriosclerosis so he is more likely to have a thrombosis than a person without any arteriosclerosis, this alone would not prevent recovery. He may even have some disease, but if such disease is a remote cause of death only there may be recovery if the proximate efficient cause of death is the accidental bodily injury. If a person has influenza so his resistance is low, this fact alone does not prevent recovery. These things of themselves are merely conditions or remote causes but are not, as a rule, the proximate or efficient or immediate cause of death.

Each case must be determined by the peculiar facts. The Texas cases cited us and others we have found, we think, establish the above stated principles of law. The difficulty is not in knowing the principles but in applying them. See Maryland Casualty v. Glass, 29 Tex.Civ.App. 159, 67 S.W. 1062 (CCA), no writ history; Metropolitan Life Insurance Co. v. Funderburk, supra; Standard Life and Accident Ins. Co. v. Roberts, supra; American Casualty Co. v. Jones, 146 S.W.2d 423 (CCA), no writ history; Worley v. International Travelers Assur. Co., supra; McVeigh v. International Travelers Assur. Co., 101 S.W.2d 644 (CCA), writ dism.; Western Indemnity Co. v. MacKechnie, 214 S.W. 456 (CCA), no writ history.

Here the evidence shows Mrs. Smith was in very bad health. She had a very serious active heart disease. She had a lung condition that put a burden on her heart. She had a history of blackout spells though some of them were minor. At her death she was taking medicines for her heart that her doctor refused earlier to allow her to stop taking. She was in such condition from her active heart condition that she could die without there being any noticeable stimulus. Her doctor advised her to get a car with power steering because she was in such condition that ordinary effort in steering the car might be too much for her heart. Her condition was not a mere dormant condition that can be classified as a mere preexisting tendency or condition. Also it is noted the exertion she was placed under was very slight. The emotion produced was slight. From all of these facts the trial court could conclude that the exertion and emotional stimulus caused by the locked bumper incident were either not a cause of her death or were but remote causes and that the proximate and efficient cause was her heart disease. He could well conclude such exertion and emotion were not the cause of Mrs. Smith’s death but only the occasion.

Appellant assigns as a Point of Error the failure of the trial court to make certain findings of fact. We will not consider it because it was not briefed. It probably was not briefed because appellant’s real position is that there were no fact issues to be decided but liability was established as a matter of law.

The judgment of the Trial Court is affirmed.


author: POPE, Justice.

text:
    F. E. SANDS et al., Appellants, v. C. N. COOKE et al., Appellees.
    No. 14096.
    Court of Civil Appeals of Texas. San Antonio.
    May 8, 1963.
    Rehearing Denied June 5, 1963.

      Butler & Stone, Robstown, for appellants.
    Keys, Russell, Keys & • Watson, Corpus Christi, for appellees.
   POPE, Justice.

This is an intersection collision case. F. E. Sands and Lemar Stewart, individually and for their wives, sued C. N. Cooke, d/b/a Cooke Farms and Ranch, and Rudolph Diaz Rena. The jury found Sands, the driver of one vehicle, guilty of contributory negligence and denied recovery to him and his wife. A small judgment for Stewart and his wife was rendered. Sands urges on appeal that there is no evidence of contributory negligence, and if there be any the verdict is against the great weight of the evidence. Both Sands and Stewart urge that the trial court erred in making a comment to the jury. We affirm the judgment.

The jury found that plaintiff Sands failed to keep a proper lookout and that this proximately caused the accident. The evidence showed that Sands was going west on a freeway at night, that defendant Rena drove defendant Cooke’s truck and trailer northward across the freeway, and Sands drove into the side of the truck. There was evidence that Rena stopped before entering the south lane of the freeway at a stop sign, and that he then proceeded across the freeway. There was evidence that special tests were made using the same truck and trailer, and that they were visible to Sands for more than half a mile. They could positively be seen and identified at a minimum distance of 412 feet. There was nothing to obstruct Sand’s vision. Plaintiff Sands stated that he saw the truck and trailer before they reached the lane in which he was driving. There were other facts. In our opinion, there was evidence which supports the verdict and the findings are not against the great weight of the evidence.

At 4:40 in the afternoon during one day of the trial, Sand’s counsel asked for an early recess. There had been evidence that the wives of the two plaintiffs were both interested in and raised orchids and flowers prior to their injuries, and were no longer able to enjoy those activities. The trial court in granting the request, it being a cold day, stated to the jury: “We will recess then a little early. Some of you may want to look after your flowers and petunias or whatever you might have because it is getting cold outside, and so we will recess until 9:30 tomorrow morning.” There was no objection to the remark. The complaint is that the comment disparaged plaintiffs’ cause of action. This Court once wrote that a “judge is necessarily allowed some discretion in expressing himself while controlling the trial of a case, and a reversal of a judgment should not be ordered unless a showing of impropriety, coupled with probable prejudice, is made.” Texas Mexican R. Co. v. Bunn, Tex.Civ.App., 264 S.W.2d 518, 527. We find no harm in the statement.

The judgment is affirmed.


author: MURRAY, Chief Justice.

text:
    Willie MORGAN and wife, Santos B. Morgan, Appellants, v. Guadalupe GONZALEZ and wife, Gloria Morgan Gonzalez, Appellees.
    No. 14142.
    Court of Civil Appeals of Texas. San Antonio.
    May 8, 1963.
    J. Earl Barnhouse, Alice, for appellants.
    Lloyd, Lloyd & Dean, Alice, for appellees.
   MURRAY, Chief Justice.

This is a child adoption case. Willie Morgan and wife, Santos B. Morgan, instituted suit in the District Court of Jim Wells County, seeking to adopt a four-year-old girl by the name of Margarita Gonzalez, without the consent of the child’s natural parents, Guadalupe Gonzalez and Gloria Morgan Gonzalez. The trial was to the court without the intervention of a jury and resulted in plaintiffs being denied the right to adopt the child, and the care, custody and control of Margarita Gonzalez were awarded to her natural parents, from which judgment Willie Morgan and wife, Santos B. Morgan have prosecuted this appeal.

No findings of fact or conclusions of law were filed by the trial court and none were requested. Under such circumstances we must indulge the presumption that the trial court resolved all fact issues, based on conflicting evidence, in favor of appellees. Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627; Construction and General Labor Union v. Stephenson, 148 Tex. 434, 225 S.W.2d 958; Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74. The evidence shows that the natural parents of Margarita Gonzalez have never given their consent to her adoption by appellants who are her maternal grandparents. There is on file the consent of the County Judge of Jim Wells County to this adoption. When the child was one month and nine days old its parents left it in the custody of its grandparents, appellants herein, so that they could go north and pick cotton. They promised to send some money for the support of the child, but never did. The child has lived in the home of appellants since she was left there by her parents. Willie Morgan, the grandfather, is fifty-nine years of age, and Santos B. Morgan the grandmother, has been drawing a relief check from the government for about fourteen or fifteen years, because she is blind. The parents never gave the child to its grandparents, either orally or by any written agreement.

Appellants base their cause of action upon the following provisions of Article 46a, Vernon’s Ann.Civ.Stats.:

“Sec. 6. Except as otherwise provided in this Section, no adoption shall be permitted except with the written consent of the living parents of the child; provided, however, that if a living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years, and shall have left such child to the care, custody, control and management of other persons, or if such parent or parents shall have not contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability, then, in either event, it shall not be necessary to obtain the written consent of the living parent or parents in such default, and in such cases adoption shall be permitted on the written consent of the Judge of the Juvenile Court of the county of such child’s residence; or if there be no Juvenile Court, then on the written consent of the Judge of the County Court of the county of such child’s residence.”

It is apparent from a reading of this Article that appellants are not entitled to adopt this child without the consent of its parents, unless they have voluntarily abandoned and deserted the child for more than two years. The evidence falls far short of showing that appellees herein voluntarily abandoned and deserted their child for a period of more than two years. The mere fact that it was left with its grandparents, with a promise to send money for its support, which promise was not kept, does not show that the parents had abandoned and deserted their child. Hull v. Hull, Tex.Civ.App., 332 S.W.2d 758; Willson v. Jones, Tex.Civ.App., 304 S.W.2d 573; Harris v. Tucker, Tex.Civ.App., 245 S.W.2d 992; Platt v. Moore, Tex.Civ.App., 183 S.W.2d 682.

The judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

text:
    WESTERN FIRE & INDEMNITY COMPANY, Appellant, v. Betty EVANS et vir, Appellees.
    No. 7253.
    Court of Civil Appeals of Texas. Amarillo.
    April 15, 1963.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Brown & Canon, Lubbock, for appellees.
   CHAPMAN, Justice.

This is an appeal by Western Fire & Indemnity Company from a judgment for total and permanent disability based upon a jury verdict for Betty Evans et vir in a workman’s compensation case.

The first five points asserted as error concern jury argument made by Sam Brown, counsel for appellees, the argument prompting the first complaint being as follows:

“Now, ladies and gentlemen of the jury, this insurance company, back before this happened, issued the Methodist Hospital a policy of insurance, a contract, and they said, in effect, ‘You give us this premium money and if anybody gets hurt out there working within the course of employment, we’ll pay them what we’re supposed to when we’re supposed to.’ Oh, I guess an insurance company could be — from an analogy between this and a big gambling house.”

At this point opposing counsel objected to the argument as being improper and moved for mistrial. The court instructed the jury not to consider the remark for any purpose. Later Mr. Brown argued as follows:

“Isn’t it a shame — isn’t it a shame that anyone, in order to secure enforcement of their contract for benefits, has to bring a law suit ? I don’t think there is any really serious doubt in the minds of that company that she was hurt within the course of her employment out there. I don’t think there is any doubt in their minds at all. And yet, they haven’t come forward and paid her one cent, not one cent of the compensation benefits to which she is entitled, and justly entitled. * * * Isn’t it a shame that these companies are — isn’t it a shame that Western Fire & Indemnity took the premium from Methodist Hospital and didn’t live up to their contract?”

To that argument the court also sustained an objection and Mr. Brown stated: “Now, gentlemen of the jury, we withdraw that statement.”

Mr. Brown in his argument also criticized the failure of appellant to call as witnesses Dr. Loveless, an orthopedic surgeon; Dr. Chaffin, a radiologist; and Dr. Mayfield. To the argument concerning Drs. Loveless and Chaffin objections were made to the effect that if Mr. Brown wanted an orthopedic or any other doctor they were available to him. The court replied: “All right. I’ll overrule the objection.” With respect to Dr. Mayfield Mr. Brown said:

“They authorized treatment by Dr. Mayfield back in August. He’s been seeing her every day or every other day. Do they bring him to testify?”

Counsel for appellant objected to the impropriety of the argument as being “criticism on our part for not producing evidence that’s available to the plaintiff. It is highly improper and we want our exception.” The court then stated in effect that they could have their exception, thus overruling the objections to the argument. The ruling of the court had the effect, therefore, of approving the criticism by counsel of the insurance company’s failure to call the doctors.

There is a myriad of cases holding jury argument not to be reversible and many cases holding to the contrary. We do not believe any good purpose would be served by reviewing the different Courts of Civil Appeals cases. Our Supreme Court in a fairly recent case has announced rules that we believe are applicable to the record here and compel a reversal. After first stating the general rule to the effect that counsel may comment in argument on the failure of the opposite party to call a witness employed by him, the court then held:

1. “The right to comment on the failure to call and use an employee-witness does not grow out of the unavailablity of the witness but out of his relationship with the opposite party.”
2. Counsel may not undertake to tell the jury what testimony the witness would give. That would clearly be improper as getting un-sworn testimony before the jury.

We believe it fair to say that the record shows appellant sent Mrs. Evans to Dr. Loveless for examination. Therefore, for the purpose of that examination he was an employee of the company. Under the authority of the Beck case just cited Mr. Brown had the right to comment on appellant’s failure to call him as a witness. The legitimate testimony is completely silent on any relationship between appellant and Dr. Mayfield and we believe a different rule prevails with respect to him, as we shall proceed to demonstrate.

Mrs. Evans had testified she had been to Dr. Mayfield for treatment about 200 times after she was released from the hospital following her injury, but she admitted she had selected him as her doctor. The testimony in that regard shows:

“Q. Mrs. Evans, I believe you—after your discharge from the hospital you selected Dr. Mayfield to go to, did you not?
“A. After I was discharged from the hospital ?.
“Q. Uh-huh.
“A. Yes.
“Q. In other words, you picked him out and he is your doctor, is that right ?
“A. Because I couldn’t get any treatment from any of the other doctors. They were treating me for everything they shouldn’t have been treating me for.
“Q. Well, my question is, you picked out Dr. Mayfield?
“A. I did.”

As shown in previously quoted argument, Mr. Brown had made the statement outside the record to the effect that the insurance company had authorized treatment by Dr. Mayfield hack in August. We thus have in the argument the picture portrayed by counsel for appellee of the insurance company having sent Mrs. Evans to Dr. Mayfield 200 times for treatment and then refused to call him as a witness to give the jury the benefit of her physical condition. Yet, the record shows affirmatively that she selected him herself. There is not any testimony anywhere in the record, except the unsworn testimony of Mrs. Evans’ counsel, that the insurance company had anything whatever to do with her selection of Dr. Mayfield or his treatments of her. Under such a record Mr. Brown was telling the jury the insurance company had sent Mrs. Evans to Dr. Mayfield for treatment and was at least inferentially telling them that Dr. Mayfield would testify Mrs. Evans was suffering from a severe injury, he having treated her 200 times, and that the insurance company did not call him because he would have to testify to serious disability. Yet, from this record the company had no relationship with Dr. Mayfield.

In view of the fact that the issue of serious injury was a hotly contested one, we believe the error amounted to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. This is particularly true when we consider the fact that the jury found total and permanent disability without any medical testimony on which to base it and when we consider the appeal to passion and prejudice made by counsel in the analogy of the insurance company to a big gambling house. “The argument thus combines both the evils of introducing purported evidence not in the record and appeals to passion and prejudice.” Houseman v. DeCuir, 155 Tex. 127, 283 S.W.2d 732.

We are not unmindful of the holding in Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054, and Consolidated Underwriters v. Lowrie, Tex.Civ.App., 128 S.W.2d 421 (writ refused), In the former the Supreme Court held great latitude is allowed counsel in discussing the facts and issues but in so holding the court said, “[B]ut such latitude extends only to the facts and issues raised by the evidence in the case.” In arguing that the insurance company had authorized treatment by Dr. Mayfield counsel was completely outside the record. In the latter, the Lowrie case, the doctor whose testimony had not been produced by the insurance company had been asked by the company to make the examination of the claimant, whereas, in our case the claimant had selected Dr. Mayfield. Thus, we believe those cases to be clearly distinguishable from the instant case.

There are several other serious points of error in the case but we believe what we have said is decisive. Further writing would extend the opinion to unnecessary length and we would assume the other errors would not likely be present upon another trial.

The case is reversed and remanded for another trial.

      . Tex-Jersey Oil Corporation v. Beck, 157 Tex. 541, 305 S.W.2d 162, 68 A.L.R.2d 1062, Syl. [6-9].

      . We do not say the gambling analogy alone, in view of the instruction, was reversible error.


author: GRISSOM, Chief Justice.

text:
    Frankie Joe ARCHER, Appellant, v. Kathleen ARCHER, Appellee.
    No. 3804.
    Court of Civil Appeals of Texas. Eastland.
    May 17, 1963.
    Rehearing Denied June 7, 1963.
    L. F. Sanders, Canton, for appellant.
    Jess Rickman, Terrell, for appellee.
   GRISSOM, Chief Justice.

Mrs. Archer sued Mr. Archer for divorce on the ground of cruel treatment. She prayed for a divorce, for the custody of their child and her two children by a previous marriage, who had been adopted by Mr. Archer, and for partition of the community property. Upon the second trial of the case, the court granted Mrs. Archer a divorce and custody of the children but awarded insignificant community property to the husband. Mr. Archer has appealed.

Appellant’s first point is that the court erred in trying the case before he and his attorney arrived. It is difficult to conceive how the appellant can expect a reversal of this judgment for that reason. The court set aside its former order. It tried this case with appellant present in person and by counsel after he had announced ready for trial.

The plaintiff testified and produced several witnesses. The defendant did not testify. He presented no evidence. The court awarded custody of the children to the plaintiff. All the evidence was to the effect that she had supported them for years; that she has a job and is making a living for them; that her trailer house is clean and the children appear to be in good spirits. Appellant’s real complaint is that, although the judgment provided that he shall have the privilege of visiting the children at all reasonable times, it provides that appellant shall give three day notice of proposed visits. We think the record reveals a situation wherein the court wisely exercised its discretion in so providing. Among other things, the mother works regularly for fairly long hours. It is undisputed that on a previous occasion when she was absent from home appellant went to her home, removed the furniture and children, kept the furniture, but returned the children after three months. There was evidence which the defendant did not contradict that he beat his wife; that he has threatened her and that she is afraid of him.

Appellant’s third point is that the court erred in ordering him to pay $20.00 per week for the support of the three children. He says the court found that he was well and able to contribute such support to the children, but that there was nothing in the record showing his earning capacity; that he was in the court room throughout the trial but plaintiff did not place him on the stand. All the parties were before the court. The court knew and could see the defendant. Evidently he was an able-bodied man suffering no physical disabilities; he had worked and made money and had paid child support, as a result of another marriage, in excess of $20.00 per week and such child support had been discontinued.

Appellant’s fourth point is that the court erred in refusing to set aside the judgment because when he was sued in this case he took the citation to the judge, who declined to represent him with the statement that he might soon be the District Judge. No improper action of the court is shown. If appellant thought the court was disqualified or prejudiced thereby he should have called the court’s attention thereto before announcing ready for trial and trying his case. Disqualification of the court is not shown.

In other points appellant contends the court erred in awarding custody of the children to the plaintiff “after three of the plaintiff’s witnesses testified as to the plaintiff’s association with another man and other factors;” erred in finding that the parties were married on November 29th, when upon his objection the court found that they were actually married on November 24th; erred in refusing to have the children brought into court and erred in instructing the witnesses not to discuss the case with any one, even the lawyers, without the court’s permission.

With reference to the last mentioned point, appellant invoked the rule. There is no indication that his lawyer wished to talk with any witnesses and could not do so because of such instruction. There is no evidence indicating that he might have been harmed thereby.

Appellant’s fifth point is that the court erred in finding that he adopted the two boys because plaintiff testified that she did not know that the adoption was finally carried out. Plaintiff alleged the adoption. The defendant specifically and at great length alleged that he had adopted them. Being admitted no proof was required.

Appellant apparently contends that condonation of his cruel treatment was established as a matter of law. This is an affirmative defense. It was not pleaded, nor was it established by the evidence. See Wright v. Wright, 6 Tex. 3; Nogees v. Nogees, 7 Tex. 538 and Crittenden v. Crittenden, Tex.Civ.App., 214 S.W.2d 670.

Some of appellant’s points appear to be frivolous but we have carefully considered them. We have studied the entire record. We conclude that the court could not have properly entered a substantially different judgment. Appellant’s points are deemed without merit. They are overruled. The judgment is affirmed.


author: HUGHES, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Richard F. ENGLISH, Appellee.
    No. 11087.
    Court of Civil Appeals of Texas. Austin.
    May 15, 1963.
    Rehearing Denied May 29, 1963.
    Lewright, Dyer & Redford, James W. Wray, Jr., Corpus Christi, for appellant.
    Hill, Brown, Kronzer, Abraham, Wat kins & Steely, Houston, for appellee.
   HUGHES, Justice.

This is a Workmen’s Compensation case in which judgment for appellee, Richard F. English, was rendered against the insurance carrier, Texas Employers’ Insurance Association, for compensation for ten weeks total incapacity and permanent partial incapacity. The only questions presented by appellant relate to the Court’s action in basing his judgment upon a compensation rate of $35.00 per week.

Trial was to a jury. Special issues 5, 6 and 7, and the jury’s answer thereto are as follows:

“SPECIAL ISSUE NO. 5: Do you find from a preponderance of the evidence that there was another employee of the same class as the plaintiff working at least 210 days of the year immediately preceding the date of the plaintiff’s injuries, if any, on the 6th day of January, 1961, in the same or similar employment in the same or a neighboring place?
“Answer ‘We do’ or ‘We do not’.
“We do.
“If you have answered Special Issue No. 5 We do’, and only in that event, then answer:
“SPECIAL ISSUE NO. 6: What do you find from a preponderance of the evidence to be the average daily wage earned by such employee in such employment during the days actually worked ?
“Answer by stating the amount, if any, in dollars and cents.
“Eighteen Dollars
“SPECIAL ISSUE NO. 7: What amount of money, if any, do you find from a preponderance of the evidence to be just and fair to the plaintiff and defendant to be fixed as the average weekly wage of the plaintiff as of the date of injury?
“Answer by stating the amount in dollars and cents.
“One Hundred & Twenty-five Dollars.”

The jury had previously found that ap-pellee had not worked the requisite time in the same employment to establish his average weekly wage.

Appellant’s first point is that there is no evidence to sustain the answer of the jury to Issue No. 6. We are unable to agree. Mr. Carlos W. Murphy, a witness for ap-pellee, testified:

“MR. ABRAHAM: No. Would you state that, what was your average daily wage during the days when so employed in the same or similar work as Mr. English was performing during the time you so worked in the year before this accident when you say you have worked at least 210 days in that type work?
“THE WITNESS: Well—
“Q Do you understand the question or is it too strung out?
“A I believe I understand. Approximately — I wouldn’t know exact— about two dollars an hour, eight hours a day, and then overtime which would run it up to about approximately eighteen dollars a day. Is that what you want ?
“MR. ABRAHAM: Yes, that’s fine. Pass the witness.”

Appellant offered no testimony to rebut or controvert the testimony of Mr. Murphy. It thus appears that there was no real controversy in the Trial Court concerning the wage rate to be used in fixing ap-pellee’s compensation. Under these circumstances, very slight evidence is required to discharge the burden resting upon appellee in this respect. American General Insurance Company v. Hightower, Tex.Civ.App., 279 S.W.2d 397, Eastland Civil Appeals, writ ref., n. r. e. We find the evidence sufficient to support the jury finding and we, therefore, overrule Point One.

Appellant’s Point Two is that the Court erred in basing its judgment upon the jury finding of average weekly wage in Special Issue 7, supra, for the reason that computation of average weekly wages under the “just and fair” rule provided in Susection (3) of Section 1 of Art. 8309, Vernon’s Ann.Civ.St., is inapplicable since the proof fails to negative the applicability of Sub-section (2) of Section 1, id., for computing appellee’s average weekly wage, pointing out that the jury in answering Special Issue No. 5, supra, excludes the application of any method of computing such wages except as provided in Sub-section (2). We agree that this is correct; it is, however, unimportant. The judgment rendered is computed under Sub-section 2, Section 1, and valid jury findings which support its application.

The judgment of the Trial Court is affirmed.

Affirmed.


author: BARROW, Justice.

text:
    Wesley Howard WILLIAMS, Appellant, v. EMPLOYERS MUTUAL CASUALTY COMPANY, Appellee.
    No. 14095.
    Court of Civil Appeals of Texas. San Antonio.
    May 8, 1963.
    Rehearing Denied June 5, 1963.

      Wade & Howard, Corpus Christi, for appellant.
    Keys, Russell, Keys & Watson, Corpus Christi, for appellee.
   BARROW, Justice.

This is an appeal by Wesley Howard Williams from a take-nothing' summary judgment granted Employers Mutual Casualty Company in a suit filed by Williams on two drafts issued by appellee. Payment was refused when the drafts were presented. The facts are not in dispute and both parties filed motion for summary judgment. The question presented is whether there was consideration fo.r the issuance of the drafts. The trial court found there was none and granted appellee’s motion.

The motions for summary judgment were based on the depositions of appellant, his employer, and his employer’s bookkeeper. For several years prior to September 29, 1960, appellant was employed as a salesman for Dixie Enginaids Company. His territory was a large part of South Texas and the Rio Grande Valley, with his headquarters in Corpus Christi. On that date Williams was involved in an automobile collision with a third party and sustained personal injuries whereby he incurred medical expenses in the amount of $509.25. At the time of the accident he was admittedly in the course and scope of his employment for Dixie Enginaids Company. Appellee had issued a liability policy to that company on the automobile operated by appellant, which provided $2,000.00 medical payment benefits for bodily injury sustained as the result of an automobile accident while in the insured vehicle. This coverage contains an exclusion that it does not apply to bodily injury “of any employee of insured arising out of and in the course of (1) do-rnestic employment by the named insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or (2) other employment by the named insured.”

Dixie Enginaids carried a policy of workmen's compensation insurance on its employees, but appellant elected to settle with the insurance carrier for the third party. He knew that this election precluded him from asserting a claim for compensation benefits. Hart v. Traders & General Insurance Co., 144 Tex. 146, 189 S.W.2d 493. Dixie Enginaids also carried a group hospitalization policy for its employees and appellant made application for payment under that policy. It was declined after appellant advised that company that he was within the scope of his employment at the time of the accident and eligible for benefits under workmen’s compensation law.

A representative of the third party insurance carrier advised appellant that he could recover medical benefits under his own automobile liability policy. He did not have a personal policy on the car, but contacted appellee. On June 8, 1961, Mr. Rojo, an adjuster for appellee, contacted appellant and, after some discussion as to whether the policy contained an endorsement providing medical payments coverage, issued the two drafts sued on herein. The drafts were for the exact amount of the medical expenses paid or incurred by appellant as a result of injuries sustained in the collision. At the time of the delivery of the drafts, appellant was required to execute a receipt and release whereby he released and discharged appellee from any and all liability whatsoever under the medical payments coverage of the automobile liability policy issued to Dixie Enginaids. The next day, after issuing the drafts, Rojo telephoned appellant and advised him of the exclusion in the policy and that payment on the drafts would be stopped.

This type of coverage is a comparatively new form of insurance. The liability of the insurer under such a provision, is based upon contract and not upon negligence of the insured. 42 A.L.R.2d 983. Appellant’s medical expenses were excluded under the express terms of the policy provisions. He admittedly was in the scope of his employment and furthermore his employer had a policy of workmen’s compensation insurance whereby medical benefits were either payable, or required to be provided, for the injuries sustained by appellant. Art. 8306, § 7, Vernon’s Ann.Civ. Stats.

Appellant relies primarily upon the recent New Jersey case of Hunt v. Hospital Service Plan of New Jersey, 33 N.J. 98, 162 A.2d 561. There Hunt sought to recover under a hospitalization policy issued by defendant for medical bills incurred by his wife. The policy excluded payment for medical expenses “which were in whole or in part compensable under any state workmen’s compensation law.” The defendant contended that since Mrs. Hunt was injured while in the scope of her employment, this exclusion applied. The Supreme Court of New Jersey held that, since the Compensation Board had ruled that the medical charges were not “compensable” as they were not authorized by her employer as required under New Jersey law, the exclusion was not applicable and permitted recovery by Hunt. This rule would not apply here, in that the policy issued by appel-lee excluded benefits which were not only payable, but which were required to be provided, under the workmen’s compensation law. The benefits were not paid to appellant because of his own election to recover from the third party.

Appellant asserts that there was consideration for the drafts in that they were issued in compromise of a disputed claim. It is settled that a compromise agreement made in settlement of a doubtful claim is supported by sufficient consideration. Aydelotte v. Anderson, Tex.Civ.App., 284 S.W.2d 804; Cleburne State Bank v. Ezell, Tex.Civ.App., 78 S.W.2d 297; Walker-Smith Co. v. Pouns, Tex.Civ.App., 256 S.W. 613. These cases are distinguishable in that here the drafts were issued not in compromise but for the exact amount of a liquidated claim. The drafts were issued through a mistake as to the coverage provided under the policy. This is not consideration. Columbian Nat. Fire Ins. Co. v. Dixie Co-op Mail Order House, Com.App., 276 S.W. 219; Burkett v. Cluck Grain Co., Tex.Civ.App., 266 S.W.2d 425; Prigmore v. Hardware Mut. Ins. Co. of Minnesota, Tex.Civ.App., 225 S.W.2d 897; 9 Tex.Jur.2d, Bills and Notes, § 40.

Appellant further asserts that there was consideration in that he was required to execute a release of his claim for any other medical expenses he might incur as a result of the accident. A recent case has held that where the beneficiary is paid the exact amount admittedly due him, there is no consideration for a full release executed by him of any other sums which might be owed under the medical payments coverage. Southwestern Fire & Casualty Co. v. Atkins, Tex.Civ.App., 346 S.W.2d 892. There the insured was permitted to recover an additional $500.00 the Court found was owed under the medical payments coverage of a liability policy, even though the insured had signed a full release upon receipt of $500.00 which the company admitted it owed. The Court there quoted with approval from Woodmen of the World Life Ins. Soc. v. Armstrong, Tex.Civ.App., 170 S.W.2d 526, as follows:

“ ‘The real question involved was whether or not there was a consideration fo.r the execution of the receipt by appellee; appellant having paid the amount admitted to be due, we do not think there was any consideration for the remission by appellee of the remainder of her claim under the certificate. * * * So, we conclude that appellant’s contention that there was an accord and satisfaction is without merit, and is overruled.’
See also Woodmen of World Life Ins. Soc. v. Smauley, Tex.Civ.App., 153 S.W.2d 608.”

The release executed by appellant was in exchange for drafts in the exact amount of his medical expense, and there is no consideration for release of any additional medical expense which might be incurred under the coverage provided for in the policy.

The judgment of the trial court is affirmed.