author: LOONEY, J.

text:
    CANNON v. FREYERMUTH.
    (No. 10157.)
    Court of Civil Appeals of Texas. Dallas.
    Feb. 25, 1928.
    1. Landlord and tenant <§= 109(1) — “Surrender” results by operation of law where parties in effect agree to tenants abandoning premises and landlord resuming possession.
    Where circumstances and acts ■ of parties are equivalent to agreement by tenant to abandon leased premises and on part of landlord to resume possession, “surrender” results by operation 'of law.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Surrender.]
    2. Appeal and error <§=1062(1) — Trial. <§=352 (4) — Submission of issue of landlord’s negligent failure to rent premises abandoned by tenant, not raised by pleading or evidence, held error, but harmless, where premises were surrendered.
    In action by landlord against tenant abandoning premises to recover rent for' uüexpired portion of lease, submission of issue as to landlord’s negligence in failing to rent premises after they were abandoned by tenant, without pleading or evidence sufficient to raise issue, was error, but harmless, where premises were surrendered by operation of law to landlord and tenant relieved of further liability for rent.
    3. Landlord and tenant <§=233(2) — Whether tenant abandoned premises and landlord suing for rent resumed possession held question -of fact for jury.
    In action by landlord against tenant abandoning premises, to recover rent for unexpired portion of lease, question whether premises were abandoned by tenant and possession resumed by landlord was one of fact for jury.

      4. Appeal and error 002 — Finding by jury, on conflicting evidence, that tenant abandoned premises and landlord resumed possession will not be disturbed by Court of Civil Appeals.
    In action by landlord against tenant abandoning premises, for rent for unexpired portion of lease, finding by jury, based on conflicting evidence, that tenant abandoned premises and that possession was resumed by landlord will not be disturbed by Court of Civil Appeals.
    Appeal from District Court, Dallas County ; T. A. Work, Judge.
    Action by T. Y. Cannon against F. C. Frey-ermuth. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Davis, Synnott & Hatcbell, of Dallas, for appellant
    Leake, Henry, Wozencraft & Frank, of Dallas, for appellee.
   LOONEY, J.

F. C. Freyermuth leased from T. Y. Cannon an apartment in the city of Chicago, Ill., for the period of 1 year, dating from May 1, 1921, at a monthly rental of $150 payable in advance.

Freyermuth paid all rents promptly up to September 1, 1921, but on August 28th vacated the premises and refused to pay any rent that accrued after September 1st for reasons hereinafter stated. Cannon sued to recover $1,200 and interest, the amount of monthly rentals for the unexpired portion of the lease. Among other things, defendant pleaded that, subsequent to the execution of the lease contract, he decided to move from the state of Illinois and thereupon offered to surrender the apartment if plaintiff would release him from liability for rents to accrue thereafter; to this plaintiff agreed, whereupon, defendant vacated the premises on August 28th, surrendered same to the plaintiff, who accepted possession, and, relying on plaintiff’s verbal agreement to release him from the rent contract, made n-o efforts to relet the premises, hence plaintiff was estopped to claim rents for the unexpired portion of the lease.

The case was tried to a jury, and on their answers to special issues in favor of defendant the court rendered judgment for him, from which this appeal is prosecuted.

Appellant challenges the sufficiency of the evidence to raise any issue as to whether or not the lease was surrendered by the defendant and accepted by plaintiff or to support the finding of the jury in favor of defendant on that issue. This contention presents the only material question for our consideration.

In answer to special issue No. 1, the jury found that, after the execution of the lease contract, the parties agreed that defendant could surrender the leased premises and terminate the lease prior to the expiration of the period named in the contract. The issue of estoppel, although raised by the evidence, was not submitted separately, nor was there a request for its submission.

The evidence, in our opinion, amply supports the finding of the jury and the judgment of the court.

The rule seems to be well settled that, where the circumstances and acts of parties are equivalent to an agreement on the part of the tenant to abandon the leased premises and on the part of the landlord to resume ■possession, a surrender results by operation of law.

The facts of this case bring it clearly within the doctrine announced in 35 Corpus Juris, 1084, § 265, as follows:

“A surrender, as the term is used in the law of landlord and tenant, is the yielding up of the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. While it is essential that the lessor and lessee mutually agree to the termination of the term, such agreement may be either express or implied. The rescission of a lease, when by express words, is called an ‘express surrender’ or a ‘surrender in fact’; and a surrender by operation of law occurs where the parties without express surrender do some act or acts from which it is implied that they have both agreed to consider the surrender as made. What does or does not constitute a surrender of the lease and an acceptance thereof must be determined from all the facts in each particular case.”

Also see page 1086, § 269; Mullaney v. McReynolds, 170 Mo. App. 406, 155 S. W. 485, 487.

The court also submitted issue No 2, ag follows;

“After the defendant moved from plaintiff’s apartment did plaintiff use due diligence to rent the apartment covering the period from August 28, 1921, to May 1, 1922?”

—to which the jury answered “No.”

Appellant assigns error on the submis- • sion of this issue and the answer of the jury on the ground that the same were authorized neither by pleading nor evidence. We sustain this contention, but hold that no harm resulted to appellant.

Manifestly, without pleading to present or sufficient evidence to raise an issue as to appellant’s negligence in failing to rent the premises after they were abandoned by ap-pellee, the question should not have been submitted, but its submission and the finding of the jury are wholly immaterial and. are ignored. Hill v. Hoeldtke, 104 Tex. 594, 598, 142 S. W. 871, 40 L. R. A. (N. S.) 672; Furst-Edwards Co. v. St. L. S. W. R. Co. (Tex. Civ. App.) 146 S. W. 1024,1026; Johnson v. Breckenridge, etc. (Tex. Com. App.) 257 S. W. 223, 228.

The question as to whether the premises were abandoned by the defendant and possession thereof resumed by plaintiff was essentially one' of fact for the determination of the jury, and as they decided the issue, on conflicting evidence, in favor of the defendant, we do not feel at liberty to disturb their finding.

We have carefully considered all assignments and propositions, and, finding no reversible error, the judgment is affirmed.

Affirmed.
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source: Caselaw Access Project

author: WILLSON, O. J.

license: Public Domain

text:
    MYERS et al. v. DANIEL et al.
    (No. 3483.)
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 17, 1928.
    Rehearing Denied Feb. 23, 1928.
    1. Estoppel <⅞=>119 — Conflicting testimony as to whether landlord promised to have cotton picked after levy made estoppel question of fact under landlord’s claim for damages from attachment against tenant.
    Question whether landlord, asserting claim against sheriff and sureties on attachment bond for damages to unpicked cotton on account of levy thereon under attachment in suit against tenant, was estopped to assert right by having agreed to have cotton picked, ft eld question of fact for trial court in case tried without jury, where testimony on that issue was conflicting.
    2. Appeal and error <3=>I0I I (I) — Trial court’s determination under conflicting evidence is respected on appeal.
    Trial court sitting as jury is under duty to determine conflict in evidence, and his determination must be respected on appeal.
    Appeal from District Court, Marion County; R. T. Wilkinson, Judge.
    Suit by A. A. Myers against L. A. La Grone, in which a writ of attachment was issued, and defendant filed a cross-action. J. M. Daniel intervened, making L. E. Stone, Sheriff, and others parties.- From the judgment, plaintiff and defendant Stone appeal.
    Af-' firmed.
    .Appellant A. A. Myers, as the owner, sued appellee L. A. La Grone as the maker of a promissory note payable to the Rogérs State Bank & Trust Company. At the time he commenced the suit, Myers procured the issuance of a writ of attachment, which was levied on unpicked cotton grown by La Grone on land rented by him of appellee J. M. Daniel. In his answer, La Grone denied that he owed anything on the note, and, in a cross-action against Myers, sought a recovery of damages in the sum of $686.95. Daniel, the owner of the land on which the cotton levied upon was grown, intervened in the suit, making appellees G. T. Haggard and Y. Y. Keas-ler sureties on the attachment bond, appel-lee T. J. Bridges, a constable, _ and L. .E. Stone, sheriff, parties, and alleging that the writ of attachment was levied by Bridges at Stone’s instance and request; that the value of the cotton levied upon was $960; -that by the terms of their contract La Grone was to pay him one-half of such value, alleged to be $480, as rent for the land; that, in addition to that sum, La Grone owed him $75 on account of supplies furnished to enable him to grow and gather the cotton; and that, after the cotton was levied upon, it was left unpicked in the field, and as a consequence was . greatly damaged by rain. He prayed for judgment against La Grone for said sums of $480 and $75, for a foreclosure 'of the landlord’s lien he claimed on the cotton, and for a recovery against Myers, Haggard, and Keas-ler on the attachment bond, and -against Stone and Bridges of any balance of the judgment in his favor against La. Grone remaining unsatisfied after crediting same with the proceeds of a sale under the foreclosure. Myers defended against the recovery sought by Daniel on the ground (he alleged) that, after the writ of attachment was levied on the cotton, Daniel agreed with his (Myers’) attorney to gather and sell same, and, after deducting from the proceeds of the sale expenses he incurred and the amount La Grone owed him, to turn over the part thereof remaining to be applied to the satisfaction of his (Myers’) claim against La Grone. Myers alleged that the cotton was damaged as charged by Daniel because of his (Daniel’s) failure to comply with his undertaking to gather it, and that Daniel was estopped to claim anything on account of such damage. In their answer to Daniel’s allegations, Stone and Bridges alleged that they used due diligence-in an effort to gather the cotton after it was levied upon, and that the damage to it from rain was due to their inability to gather it sooner than they did. The trial was to the court without a jury, and resulted in a judgment in Myers’ favor against La Grone for $285.40 and foreclosing the attachment lien on the one-half of the cotton levied upon owned by La Grone; in favor of Daniel •against Myers and Stone joihtly for $450, as the value of one-half of the cotton levied upon owned by .Daniel; in favor of Daniel against Myers alone for $75; and that Bridges, Keasler, and Haggard “go hence without day.” The appeal was prosecuted by Myers and Stone.
    Schluter & Singleton, of Jefferson, for appellants.
    * Bartlett & Newland, of Linden, and O’Neal & Harvey, of Atlanta, for appellees.
   WILLSON, O. J.

(after stating the facts as above). It appeared from evidence heard at the trial that the writ of attachment was levied September 21, 1925, and that, after the levy'was made, the cotton was left in the field unpicked until the following December. It began to rain about ten days after the levy was made, and continued to do so for about two months. A result of leaving the cotton in the field unpicked and exposed to rain so long was to render it almost valueless.

In their brief, Myers and Stone say the only question to be determined here is as to whether Daniel, after the levy of the writ, agreed with 0. C. Hines, one of Myers’ attorneys, it was alleged, that he (Daniel) would have the cotton picked. Myers and Stone insist it appeared Daniel so agreed, and that, because he did, he was estopped from asserting a right to recover of them as he sought to.

Testifying as a witness, Hines said that five or six days after the writ was levied: he told Daniel “to get the hands and pick the cotton and gin it and sell it and turn the money over to me, and Mr. Myers' would pay the picking and Mr. Daniel agreed to that, and said he would put hands in there and have the cotton picked, and I saw Mr. Stone coming across the street and told him about it, and that is the last I ever had to do with it.” Daniel, testifying as a witness, said he did not so agree. “I just didn’t tell Mr. Hines,” he said, “that I would put hands out there and pick that cotton.”

It is apparent from what has just been said that the testimony as to.whether Daniel agreed to have the cotton picked or not was conflicting. It was the duty of the trial court to determine the conflict, and, under the rule applicable, his determination of it must be respected by this court. Kelley v. Howard (Tex. Civ. App.) 44 S. W. 546; Ford v. Denton (Tex. Civ. App.) 43 S. W. 568; Hunsaker v. Abbott (Tex. Civ. App.) 289 S. W. 127; Kirby Lumber Co. v. Adams (Tex. Civ. App.) 291 S. W. 279; Harpold v. Moss, 101 Tex. 540, 109 S. W. 928.

The judgment is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    JACKSON v. PARISH et al.
    (No. 11893.)
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 23, 1927.
    Rehearing Denied Feb. 11, 1928.
    Automobiles <§=>247 — Judgment for car’s occupants, injured in collision with truck, required reversal as based on conflicting findings as to proximate cause.
    In action for injury sustained by occupants of automobile colliding with truck driven by defendant’s employee, where issues were submitted to jury, which returned findings that absence of lights on truck caused collision notwithstanding car driver discovered truck in time to avoid collision, and that car driver’s negligence in passing truck was proximate cause of injury, with further finding that negligence in failing to provide lights on truck was proximate cause of injury, held that findings were conflicting and judgment based thereon must be reversed.
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    Suits by W. C. Parish and others against J. Lewis Jackson, consolidated for purpose of trial by order of the court. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Kenley, Dawson & Holliday, of Wichita Falls, for appellant.
    W. P. Smith, of Wichita Falls, and Aynes-worth & Lackey, of Stinnett, for appellees.
   DUNKLIN, J.

J. Lewis Jackson was engaged, in operating trucks between the town of Wichita Falls and the town of Frederick, Old., on June 17, 1924. While V. E. Beasley, one of Jackson’s employees, was driving one of his trucks near the town of Frederick, Okl., it collided with a Ford car driven by W. C. Parish. At the time of the collision', the Ford car was traveling in an easterly direction, and the truck was traveling in a westerly direction. Riding in the Ford ear with W. C. Parish were his wife, Mrs. S. E: Parish, and his three minor children, Robert, Edith, and Evaline, all of whom sustained personal injuries as a result of the collision.

W. C. Parish instituted four separate suits in the district court of Wichita county to recover damages for the injuries sustained, the suits being for the benefit of himself, as well as for the benefit of his wife and said minor children; three of the suits being for the benefit of himself and only one other person, to wit, one of the minor children. By order of court, all of these suits were consolidated, and the defendant has appealed from a judgment for damages sustained by Mrs. Parish, and each of the three children in separate amounts, all aggregating the sum of $1,000.

The suits were all based upon allegations of negligence on the part of the driver of the track as defendant’s agent (1) in driving the truck without lights; (2) driving it upon the wrong side of the road, to wit, the left hand or south side in the direction the truck was traveling; (3) driving the same at a high and dangerous rate of speed; and (4) negligence of the driver of the truck in turning to the north side of the road after plaintiff had turned the Ford ear to that side in order to avoid a collision with the truck after he had discovered that the same was on the south side.

The findings of the jury in answer to special issues were too uncertain and conflicting to serve as a proper basis for the judgment rendered.

There was a finding that the truck was being driven without lights, and that in so driving the same Beasley, the operator, was guilty of negligence, which was “the proximate cause of the injury to plaintiff’s wife and children.” That was the only finding of negligence against the defendant. There were further findings that plaintiff W. 0. Parish was guilty of contributory negligence in driving his Ford ear without observing where he was driving, and while looking over to one side and pointing one hand in the direction he was looking, and also by edging across the road to the north side, and then suddenly swerving his car in an attempt to pass the truck. There were further findings that the road was 30 feet wide; that the truck was traveling at the rate of 15 miles an hour; that before it swerved to the right immediately preceding the accident it was not wholly on the north side of the road, but there was sufficient space for plaintiff to have passed it on the south side of the road at the time he attempted to pass the truck on the north side of the road.

The jury further found that plaintiff was guilty of negligence in attempting to pass the truck on its north side when there was sufficient room for him to pass on the south side, and that his negligence in so doing was “the proximate cause of the collision.” There were further findings that, in the absence of lights on the truck, there was not sufficient light to enable the drivers of the two vehicles to pass each other Without danger to the occupants of the Ford car. But the jury also found that the plaintiff recognized the defendant’s vehicle as a truck coming west at a sufficient distance away to have avoided collision with it by the exercise of ordinary care. , -

Conceding for the sake of argument that the contributory negligence of plaintiff W. C Parish in the respects found by the jury, would not preclude a recovery by him in behalf of any of the injured persons, yet the finding that the collision was caused by an absence of lights on the truck cannot be harmonized with the further findings that, notwithstanding the absence of such lights, plaintiff discovered the approach of the truck ■in time to enable him to pass it on the south side of the road, by the exercise of ordinary care. Nor can the finding that the plaintiff’s negligence, in failing to avoid the collision by passing the truck on the south side of the road after discovering its approach was “the proximate cause of the collision,” be reconciled with the further finding that the defendant’s negligence in failing to provide lights on the truck was “the proximate cause of the injury to plaintiff’s wife and children.”

“The verdict must find all the issues made by the pleading in language which does not admit of mistake. It should be the end and not the continuation of the controversy.” Moore v. Moore, 67 Tex. 293, 3 S. W. 284; N. T. T. Co. v. Armour & Co. (Tex. Com. App.) 288 S. W. 145.

In McDonald v. I. & G. N. Ry. Co., 86 Tex. 1, 22 S. W. 939, 40 Am. St. Rep. 803, the widow and children of Dr. McDonald sued for damages for his death, caused by being run over by defendant’s train at a public crossing, and in which the alleged negligence of the defendant in failing to ring the bell of the locomotive or sound a whistle was the proximate cause of the' accident. In the opinion in that case, written by the then Associate Justice Gaines, the following was said;

“Dr. McDonald, as the evidence conclusively shows, knew that the train was approaching. It follows that the negligence of the servants of the company who were operating the train to ring the bell or blow the whistle, if they did fail in the performance of that duty, was not the cause of the accident; and it was proper that the jury should be so instructed.”

By reason of such conflicting findings, the judgment of the trial court is reversed, and the cause is remanded without a discussion of other assignments of appellant presented in his briefs, the determination of which becomes unnecessary.
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author: BARCUS, J.

text:
    GREAT AMERICAN INS. CO. v. D. W. RAY & SON.
    (No. 642.)
    Court of Civil Appeals of Texas. Waco.
    Feb. 16, 1928.
    Rehearing Denied March 22, 1928.
    1. Insurance <§=229(3) — Insurance agent held authorized to accept cancellation of policy for insured. •
    Insurance agent held, to have authority to accept cancellation of policy for insured, though 5-day notice was not given to insured personally, where insured had instructed agent to keep property insured, since insurance agent may be agent of both insured and insurer.
    2. Insurance <§=598 — Insured is entitled to Interest from 'date of fire, where there is total loss, and insurer denies liability.
    Where there is total loss of property insured, it becomes a liquidated demand, .and, if insurance company denies liability and refuses to pay, insured is entitled to interest from date of fire.
    3. Appeal and error <§=>1033(8) — In action on fire policy, allowance of interest from date 60 days after fire held not error of which insurer could complain.
    In action on fire insurance policy, allowance of interest from date 60 days after fire held not error of which insurer could complain, notwithstanding policy provision that insurer had 60 days after proof of loss in which to pay, since insured is entitled to interest from date of fire.
    Error from District Court, Navarro County; Hawkins Scarborough, Judge.

      Action by D. W. Ray & Son against the Great American Insurance Company. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Thompson, Knight, Baker & Harris, of Dallas, for plaintiff in error.
    Richard & A. P. Mays, Lawrence Tread-well, and Davis, Jester & Tarver, all of Corsicana, for defendants in error.
   BARCUS, J.

This suit was instituted by appellees against appellant to recover the amount due on a $5,000 insurance policy issued by appellant on December 2, 1025, to appellees, covering a gin at Kerens, Tex. Appellant denied liability and refused to pay any portion thereof.

Joe Sheppard, representing a number of insurance companies, wrote $24,500 insurance on the gin property owned by appellees. The policies were all on standard form and provided for concurrent insurance to said amount. There were ten different items of property covered by said policies, varying in amounts. On December 3, 1925, under the jury’s findings, eight of the items covered by the insurance were destroyed by fire. According to the proof of loss as made by the assured, seven of said items were totally destroyed and the metal tanks and towers were damaged to the extent of $232.95 and the seedhouse was damaged to the extent of $50. The jury found that the seedhouse was not damaged. Some of the items were insured for a small percentage of their value, as found by the jury, and others at a much higher percentage of valuation. Appellants in their motion for new trial alleged that the maximum amount for which .the trial court was authorized to enter judgment for appellees under the jury’s findings was $4,320.89. It appears from appellees’ calculation the court was authorized to enter judgment for them for $4,711.40. The court actually entered judgment in favor of appel-lees for $4,309.71, with interest at 6 per cent, from February 3, 1926.

It appears that Joe Sheppard represented a number of different insurance companies and had written all of the insurance on appellants’ gin properties in October, 1925, same having been written in some half dozen different companies. Two or three of the companies in which he wrote insurance originally wired him to cancel the insurance, which he did, and he then rewrote the insurance in other companies. He wrote one policy for $5,000 in the Royal Insurance Company and received a wire from it to cancel same, which he did immediately and returned said canceled policy to said company, and then wrote the insurance in appellant company. Sheppard had kept in his possession all of the policies of insurance.on said gin property. After he canceled the policy in the Royal Insurance Company and wrote the policy in appellant company, on December 2, 1925, he took all of the policies, totaling $24,500, to appel-lees’ office and delivered same to them. Mr. Sheppard testified that—

“Mr. Ray’s [one of appellees] instructions to me with reference to keeping his property cov-* ered was he told me that whenever he had a policy to expire to always keep him covered in good companies. That is about the substance of what he told me.”

There is no evidence which in any way indicates that appellees knew in what company or companies their insurance was being carried. The policy issued in appellant company was with all the other policies delivered to appellees on December 2d. Appellees paid the total premiums thereon, and the premium on the policy issued in appellant company, to wit, $182.50, was, with the report of Mr. Sheppard, sent to appellant, which received the premium and made no complaint at said time of the policy being issued. At the time Mr. Sheppard received notice .to cancel the policy which he had issued in the Royal Insurance Company he canceled said policy and returned, same to said company ánd issued the policy in appellant company without having in any way communicated any of said facts to appellees.

Appellant contends that, by reason of Mr. Sheppard having issued the policy in the Royal Insurance Company, said company was bound, and the issuance by Mr. Sheppard of the policy in appellant company was not a binding obligation because appellees had only requested a total insurance of.$24,500,. and under the standard form of policy, the policy issued by the Royal Insurance Company could not be canceled until after the expiration of 5 days’ notice given to appellees, and since no notice was given to appellees, said policy had not been in law canceled; appellant’s contention being that Mr. Sheppard, as agent, did not have the authority or power to accept the cancellation for appellees and thereby bind appellees. We overrule this contention. It seems to he the well-settled principle of law that the insurance agent may be both the agent of the assured as well as of the insurance company. Norwich Union Fire Insurance Co. v. Dalton (Tex. Civ. App.) 175 S. W. 459; Id. (Tex. Com. App.) 213 S. W. 230. Appellant seems to recognize this rule, but contends that, in order for the insurance agent to have authority to hind the assured in the acceptance of a notice of cancellation, he must have positive instructions from the assured governing said question. As above stated, appellees had instructed Mr. Sheppard to keep their property insured, and, if at any time a policy expired, to reissue and to always keep them insured in good companies. In addition, it is shown without dispute that the policy in controversy was not only issued but was actually delivered'to and received by appellees prior to the time the fire occurred on December 3,1925. .

Appellants further contend that the trial court was in error in allowing interest from February 3d instead of from April 26th. It appears from, the record that the fire occurred on December 3d and that the probf of loss was filed on February 26th, and the policy provides that the appellant has 60 days after proof of loss in which to pay the policy. There was no pleading with reference to these provisions by appellant. Appellees alleged that the property was totally destroyed. The finding of the jury was to the same effect. Our courts hold that, where there is a total loss of the property insured, same becomes a liquidated demand, and, if the insurance company denies liability and refuses to pay any portion of the policy, the assured is entitled to interest from the date of the fire. Northern Assurance Co. v. Morrison (Tex. Civ. App.) 162 S. W. 411; Camden Fire Ins. Co. v. Bomar (Tex. Civ. App.) 176 S. W. 156. We do not think there was any error of which appellant can complain in the court’s allowing interest from February 3, 1926, which was 60 days after the date of the fire. We have examined all of appellant’s assignments of error and same are overruled.

The judgment of the trial court is- affirmed.
      <gs>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    PETROLEUM CASUALTY CO. v. SEALE et al.
    (No. 9095.)
    Court of Civil Appeals of Texas. Galveston.
    Feb. 2, 1928.
    Rehearing Denied March 8, 1928.
    1. Master and servant <3=3385 (14) — Permanent partial incapacity from foot injury, not amounting to total loss of foot or its use, held compensable at 60 per cent, of average wage for period not exceeding’300 weeks (Rev. St. 1925, art. 8306, § 12).
    Where there is permanent partial incapacity from injury to foot, which does not amount to total loss of foot or its use, it is compensable under the last paragraph of Rev. St. 1925, art. 8306, § 12, at 60 per cent, of average weekly wages for period not exceeding 300 weeks, notwithstanding that, under specific injury provisions of such section, recovery for total loss of foot is limited to 60 per cent, of average weekly wages for 125 weeks.
    2. Master and servant <3=>40l — Petition for compensation, alleging foot injury, held not to limit recovery to scheduled compensation for injury to specific member (Rev. St. 1925, art. 8306, §§ 10, 12).
    In proceeding under the Workmen’s Compensation Act, petition alleging injury to foot of laborer, whose employment required use of two good and sound feet, held, sufficient under either Rev. St. 1925, art. 8306, § 10, or last paragraph of section 12, and did not limit recovery to scheduled compensation for injury to specific member alone prescribed in' the other paragraphs of section 12.
    3. Master and servant <§=>417(5) — On appeal, petition, not excepted to, will be given benefit of every reasonable intendment.
    Where petition under Workmen’s Compensation Act (Rev. St. 1925, arts. 8306-8309) is not excepted to, it will be given benefit of every reasonable intendment on appeal.
    4. Master and servant <⅜=405(6) — In proceeding for workman’s compensation, evidence held to support finding of 85 per cent, permanent partial incapacity for foot injury (Workmen’s Compensation Act).
    In proceeding under Workmen’s Compensation Act (Rev. St. 1925, arts. 8306-8309) for foot injury, evidence held sufficient to support finding of 85 per cent, of permanent partial incapacity, where injury sustained when 300 or 400 pound beam fell on foot, impaired claimant’s strength and general efficiency, caused him pain, and made it impossible for him to do any sort of heavy work as laboring man.
    5. Master and servant <3=>405(6) — Witnesses testifying to injured workman’s incapacity need not specify percentage of incapacity in figures.
    In procee'ding under Workmen’s Compensation Act (Rev. St. 1925, arts. 8306-8309), it is not essential that witnesses specify percentage of incapacity in figures, since jury are presumably men of ordinary intelligence, who can properly make their own estimate of percentage of impairment.
    6. Master and servant <3=>4I7(5) — Difference between wage earning capacity of workman before and after injury held immaterial where recovery was not had under such section (Rev. St. 1925, art. 8306, § II).
    Where recovery under Workmen’s Compensation Act for foot injury was not had under Rev. St. 1925, art. 8306, § 11, difference between claimant’s wage-earning capacity before and after injury, which is made measure of compensation under that section, becomes immaterial.
    7. Master and servant <3=>417(9) — Judgment awarding compensation to injured workman should incorporate provision for retention of jurisdiction to modify award for change of condition, mistake, or fraud (Rev. St. 1925, art. 8306, § 12d).
    Judgment awarding compensation to injured workman should have incorporated provision for retention of jurisdiction to review or modify award on proof of change of condition, mistake, or fraud, agreeably to practice prescribed by Rev. St. 1925, art. 8306, § 12d, though such procedure is not imperative and court would have such authority anyway.
    Appeal from District Court, Harris County ; Ewing Boyd, Judge.
    Suit by the Petroleum Casualty Company, insurer, to se't aside an award of compensation under the Workmen’s Compensation Act to A. Seale, employee of the Humble Company. From a judgment refusing to .set the award aside, insurer appeals.
    Reformed and affirmed.
    J. C. Townes, Jr., R. E. Seagler, and Conrad J. Landram, all of Houston, for appellant.
    Geo. G. & M. E. Clough, of Houston, for ap-pellees.
   GRAVES, J.

Under a jury’s verdict upon special issues finding him to have sustained 85 per cent, of “permanent partial incapacity” to labor as a result of injuries sustained in the course of his employment for the Humble Company, the appellee was awarded judgment against appellant as the insurer for 60 per cent, of his average weekly wages for 300 weeks, as in compliance with the last paragraph of section 12 of R. S. 1925, art. 8306.

Appellant, through this appeal, protests that the appellee by his pleadings and proof, confined the injury and disability thus found to be partial to his right foot, and therefore, under the “specific injury” provisions of section 12, could in no event recover for more than the total loss of the use of the foot; that is, 60 per cent, of his average weekly wages for 125 weeks. A superstructure of corollaries is thus built upon this assumed mudsill to the effect that:

(1) A series of its requested special issues designed to elicit whether partial incapacity in the use of the right foot was suffered after total incapacity therein ceased, and, if so, the per cent, and duration thereof, should have been given.

(2) That the trial court’s special issue No. 2, “Do you find that the plaintiff has sustained a permanent partial incapacity?” should have submitted the extent and duration of the claimed disability separately.

(3) That the verdict and judgment fixing the disability sustained at 85 per cent, are not supported by the evidence.

The purport of additional propositions is that the evidence failed to show wage-earning capacity after the injury; hence was insufficient to support any recovery under section 11 of article 8306, and, in any event, the judgment should be so reformed as to provide for retention of jurisdiction by the court “for the purpose of reviewing or modifying the award on proof of change of condition, mistake, or fraud.”

None of these contentions, except the last one, we think, can be sustained. The first of them rests upon two general arguments: (1) That the appellee’s pleadings and proof limited the permanent injury found to the impaired use of a specific member, his right foot, wherefore the period of his compensation could not at most exceed the 125 weeks prescribed in section 12 for the entire loss of the use of the foot; (2) that the last paragraph of that section, relative to “all other cases of partial incapacity,” being in pari ma-teria with all the preceding ones, must be construed together with them and held to refer to the same thing — that is, the cases of partial incapacity in the 'Use of a specific member — and to allow no other recoveries than those scheduled therein.

This last-stated view of the meaning of the paragraph quoted from is directly contrary to £he construction put upon it by the Commission of Appeals in Texas Employers’ Insurance Ass’n v. Moreno, 277 S. W. at page 84, and cannot be adopted by this court, which fully agrees with the interpretation there tríade.

While the only question decided in the Moreno Case was that the recovery therein, “based in part upon section 10, resulting from injuries not specified in section 12, precludes recovery under the last paragraph of section 12 for partial incapacity due to partial loss of usefulness of the arm,” the court in decid- ■ ing it construed all the provisions of the Compensation Act involved in the case at bar, holding that other recoveries than those scheduled for specified injuries in its preceding sections were permissible under its last one; in other words, as we understand the view taken of the statute as a whole in this respect, if there be permanent but not totally disabling capacity resulting from injuries to the foot itself, or, along with it, to other dependent bodily powers as well — that is, permanent partial incapacity from such injuries as do not amount to the total loss of the foot or of its use, it being neither severed nor left entirely useless — it is compensable under this last paragraph of section 12 at the straight 60 per cent, of the employee’s average weekly wages, multiplied by the percentage of the consequent incapacity, for a weekly period not exceeding 300 weeks.

That was precisely the character of Moreno’s explicitly approved recovery for the second 200 weeks (his first 200 weeks being for the time he was totally incapacitated, based upon section 10), and it was the character of all the recovery had by Seale in this cause. As was likewise the case with Moreno, Seale made no effort to recover for partial incapacity for work under section 11, and, had he done so, probably would have failed under this conclusion of the court in the former’s case:

“It is not necessary for us to decide whether or not one could recover under that section and also for partial incapacity under the last paragraph of section 12. But we think they could not. We believe the latter section refers to partial loss of usefulness of the members of the body referred .to in section 12, and that, with reference to such partial incapacity, including disfigurement of such members, it takes the place of section 11, which refers to partial incapacity from general causes.”

As 'concerns the claim for express limitation of the case as made for the appellee to the schedules prescribed in the other paragraphs of section 12 than the last one, we can neither so construe the pleadings nor proof. The material averments of the petition were:

“(2) That on and about the 24th day of February, 1926, the plaintiff received an injury during the course of his employment in Harris county, Tex., that an I-beam fell upon his right foot, breaking four bones, and dislocating” his toes, and seriously and permanently injuring him. That at the time of receiving said injury he was earning the sum of $4 per day, whereby he was entitled to have and receive of and from the defendant herein compensation at the rate of $13.86 per week during such time as he shall be incapacitated from labor. * * *
“(6) Plaintiff would show to the court that, as a result of the injury which he so received, he is permanently injured; that he is a laborer, dependent upon his feet in laboring; that his employment requires the use of two good and sound feet, without which he cannot obtain and retain employment as a laborer; that the bones of his feet were broken and have not properly healed or united, nor have his toes resumed a normal position, and he is advised and beKeves that his said injuries are permanent, and, if so, he is entitled to have and receive compensation for 401 weeks after the date of injury at the rate of $13.85 per week, or to wit, $5,540, less 8 payments $110.80, or a balance of $5,429.20. * * *
“(8) Wherefore premises considered, plaintiff prays for citation against the defendant in the terms of the law, and on final hearing hereof each and every matter and thing connected with his claim be inquired into and ascertained and adjudicated, that the extent and nature of his injury be established, his compensation fixed, and the duration thereof ascertained, and that he have judgment for the amount of his compensation in one lump, to wit, $5,429.20, together with costs. And he prays for all such other and further relief, general and special, as he might be hereunto entitled, at law or in equity, or under the provisions of the Workmen’s Compensation Act, and will ever pray.”

This petition was not excepted to (indeed, the record fails to show any action upon the general demurrer even), and, when given the benefit of every reasonable intendment, to which it is plainly entitled, it cannot be said to so confine and limit the injury and incapacity declared upon as to make inapplicable any other than the scheduled compensation for injury to a specific member alone, prescribed in the other paragraphs of section 12 than the'last one, but rather to be sufficient for a recovery under either preceding section 10 of this same article, or under the last paragraph of section ’12, 'according as might be developed by the proof. So much for the pleading.

When the evidence is looked to, it too seems equally sufficient to support the 85 per cent, of permanent partial incapacity recovered for; indeed, under this court’s definition of those terms in the Corsey Case (Tex. Civ. App.) 216 S. W. 464, had the jury’s finding been that the appellee sustained a permanent total incapacity, instead of the negar tive answer it did return to special issue No. 1, propounding that inquiry, it is not thought . it could have properly been set aside as being , unsupported.

It is true that the actual traumatism, to use the medical term for the original- hurt, was only to the right foot—that is, the 300 or 400 pound iron beam that caused it fell only upon the foot, breaking four bones, etc.—but the testimony for the appellee amply established that such effect upon the foot proper, severe as it was shown to be, was not the only disabling one resulting directly from it. The foot was neither severed, nor was the entire use of it lost, but both the man himself and his physician testified that its resulting condition had been such up to the time of the trial (nearly one year subsequent to the acci- • dent) that he could not walk at all with the sole of it flat on the ground, as the normal man does, but had to walk upon the side of it altogether, wearing his shoes out always on the side; that he had all along been unable to stay long on his feet, or do any kind of heavy lifting or hard work, such as he had been doing before, his prior employment having been as a boiler maker’s helper, which called for the lifting of heavy iron both on and above the ground, and required for its proper performance the possession of two sound feet; that he had continuously suffered pain, especially in the region of the broken bones, could stand no pressure upon that foot, and had never been able to resume his work as a laborer. He added that the only work he had done since his injury was piddling around in the lighter tasks of a grocery store for a few months, but was discharged for inability to do that.

His physician further detailed at length the nature, extent, and effect of his injuries, saying that he found one of the bones so broken in his foot still not united; muscles, tendons, and nerves in the region of the fracture also injuriously affected; that, in the eleven months intervening since the accident, there had been no improvement in these conditions, and that in his opinion they were not only permanent and would never improve, but would always in their impairment of his strength and general efficiency cause him pain and make it impossible for the appellee to do any sort of heavy work as a laboring man; that his foot’would never support or bear the weight of his body.

The appellee made profert of himself and of his foot and shoe in the court, in illustration before the jury of his testimony, and was also in its presence examined separately by the physician just referred to, as well as by one of the physicians who testified in behalf of the appellant; each of these medical witnesses also illustrating his findings and opinions either by reference to the injured foot, or to charts or X-ray pictures.

It seems needless to further particularize testimony that so clearly appears to us to have warranted the finding made; it is tru.e no witness specified a per cent, in figures of resulting incapacity, but that was not essential. “Presumably the jury were men of ordinary intelligence, and as such were entitled to use their common sense upon all the evidence and draw the same conclusions from their observance of physical conditions, personal appearance, and the value of human testimony, as other rational persons in like circumstances might do.” Oilmen’s Reciprocal Ass’n v. Harris (Tex. Civ. App.) 293 S. W. at page 582, col. 2. They could therefore properly make their own estimate of the percentage of impairment.

We think the pleadings and evidence thus outlined definitely and plainly take this case out of the class of “specific injuries” scheduled in section 12, where appellant contends it alone should go, and bring it squarely within the “other cases of partial incapacity,” as classified by the Commission of Appeals in the Moreno Case, supra, and for which the maximum period of 300 weeks’ compensation is prescribed in the last paragraph of that section, agreeably to the principle thus stated in Lumbermen’s Reciprocal Ass’n v. Anders (Tex. Civ. App.) 292 S. W. at page 267:

“We cannot agree with counsel for appellant in this contention, and think that section 12 of article 8306 does not govern the injury in this case. It is true that appellee has lost the use of his foot, but it is not true that the loss of the use of that member is the only injury that appellee has received. In consequence of the breaking of his leg and its failure to unite, and the constant pain and suffering that appellee has endured, and continues to endure, he has been rendered totally unable to perform manual labor, and it is probable, as we think, that this condition will continue unless appellee’s leg is successfully amputated, thereby relieving him of the constant pain and suffering that he now endures in consequence of the condition of his leg. We know of no provision in the law that requires an employee to have his- leg amputated in a case of this character, or otherwise be confined to a recovery of compensation as for the loss of the use of a specific member, as provided in section 12, supra. It is not only the loss of the use of the foot that has resulted to appellee, but on account of the nature of the injury to his leg and the conditions that have set up in consequence of the injury, his pain and suffering is such that he cannot endure to perform manual labor which, as the record shows, he is only qualified to perform.”

The Supreme Court refused a writ of error in that case, and to the same effect with it in the construction of the statute and the principle involved are Texas Employers’ Ins. Ass’n v. Moreno (Tex. Com. App.) 277 S. W. 84, and Millers’ Indemnity Underwriters v. Cabal (Tex. Civ. App.) 257 S. W. 957. Further citations are deemed unnecessary.

Were' appellant’s first and basic position regarded as sound, it might be conceded that its purely subsidiary ones concerning the special issues asked, etc., were also, but, under our adverse conclusion upon it, the dependent ones fall along with, it; hence independent discussion of them becomes unnecessary.'

Since no recovery was had under section 11 of the Act (Rev. St. 1925, art. 8306), •the difference between appellee’s wage-earning capacity before and after the injury, made the measure of compensation under that section, becomes immaterial.

We conclude to sustain the sixteenth proposition, urging that there should have been incorporated in the judgment a provision for retention by the court of jurisdiction over the cause “for the purpose of reviewing or modifying the award on proof of change of condition, mistake, or fraud,” agreeably to the practice prescribed for the Accident Board under section 12d of article 8306. We incline to the opinion, however, that this procedure is not an imperative one, and that the court, with the statute standing there, would in the future have that authority anyway, but perhaps it is the safer practice. It has been followed by the Court of Civil Appeals for the Ninth District in the cases of Western Indemnity Co. v. Corder, 249 S. W. 316, and Texas Employers’ Insurance Ass’n v. Mullican, 261 S. W. 215.

The trial court’s judgment, after being so reformed as to include that provision, has been affirmed. ’

Reformed and affirmed.
      @=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes'


text:
    ROYAL INDEMNITY CO. v. HOGAN et ux.
    (No. 11881.)
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 3, 1927.
    Rehearing Denied Jan. 14, 1928.
    1. Evidence <⅞=»125 — Declarations of deceased that he was driving oar to test brakes held res gestee in parents’ action for his death.
    In parents’ action for .death of son, killed while driving automobile for purpose of testing brakes, admission of testimony of coemployees that deceased stated he was going to drive car for purpose of testing it, and of young ladies whom he was taking home, that deceased stated he was driving car to see whether brakes worked, held proper since declarations made by deceased were contemporaneous with his act of driving car, were explanatory of purpose, and therefore admissible under rule of res gestos.
    2. Master and servant <⅜=»375(!) — Garageman ' killed while driving car to test brakes, but incidentally taking young ladies home, held engaged in “furtherance of employer’s business” (Rev. St. 1925, art. 8309).
    Garage employee who was killed while driving car for purpose of testing brakes, but who at time of accident was incidentally taking young . ladies home, held engaged in. “furtherance of employer’s business,” within meaning of Rev. St. 1926, art. 8309, although violating employer’s rules against carrying passengers.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Furtherance of Business.]
    3. Trial <3=^350(6) — Refusal to submit insurer’s requested issues in parents’ action for death of son while driving automobile to test brakes held not error, where favorable finding would not have defeated recovery.
    Refusal of court to submit issues to jury in parents’ action against insurer for death of ' son while testing brakes of automobile held not error, where finding in favor of insurer on one or more of requested issues would not have defeated recovery, especially in view of fact that main requested issue was embodied in main charge.
    4. Trial <3=0350(8): — Refusal to submit requested issues held not error, there being no conflict in testimony.
    Refusal to submit requested issues to jury held not error, where there was no conflict in testimony bearing on any of those issues.
    Appeal from District Court, Wichita County ; W. W. Cook, Judge.
    Proceeding under the Workmen’s Compensation Law by A. V. Hogan and wife, claimants, for death of their son, opposed by the Royal Indemnity Company, insurance carrier. From a judgment for. the claimants, the insurance carrier appeals.
    Affirmed.
    Davenport & Crain, of Wichita Falls, for appellant.
    Grindstaff, Zellers & Hutcheson, of Weath-erford, for appellees.
   DUNKLIN, J.

The Royal Indemnity Company, who was an insurer against accidents, under the Workmen’s Compensation Law (Rev. St. 1925, arts. 8306-83091), has appealed from a judgment rendered against it in favor of the plaintiffs A. Y. Hogan and wife, for the death of their son, Worth F. Hogan, as the result of an accident sustained by him when a car in which hé was riding was struck by another car. At the time of the accident, Worth F. Hogan was an employee of Langford Motor Company, doing business in the city of Wichita Falls, and that company was a subscriber to the Texas Employers’ Insurance Association and had procured from the Royal Indemnity Company a policy of insurance against accidents to its employees. The plaintiffs first filed their claim before the Industrial Accident Board of the state of Texas and later prosecuted an appeal from the decision of the board to the district court of Wichita county where the accident ocurred and in which the judgment appealed from was rendered. The record shows an agreement between the parties in the trial court that all steps necessary to make the policy sued on a valid-and subsisting obligation at the time of the trial had been taken, and that the appeal had been duly prosecuted from the decision of the Industrial Accident Board to the district court.

According to allegations in plaintiff’s petition, at the time of the accident the deceased was engaged in testing a Lincoln car which he was driving in order to locate any mechanical defects therein so that they could be repaired, and that such service was one of the duties of his employment with the Langford Motor Company, and was performed in the furtherance of- the business of his employer, and that the injuries he received which resulted in his death had to do with and originated in said employment.

The defendant filed a general demurrer and a general denial, and in addtion thereto pleaded specially that at the time of the accident the deceased was operating the car without the consent or knowledge of his employer or any one in authority, and in driving^the car was engaged upon an independent mission for himself and not in the performance of any duty of his employment; and in appellant’s.brief the following is said:

“The main contention made by the plaintiffs was that Worth F. Hogan was in the course of Ms employment at the time of bis death, and the main contention of the defendant, Royal Indemnity Company, was that he was on an independent mission, and that he was killed while not in the course of his employment.”

The uneontroverted proof introduced upon the trial of the case established the following facts: That the accident occurred in the afternoon of April 13, 1925, during the working hours of the deceased and under the terms of his employment. The car which the deceased was driving was a secondhand Lincoln which the motor company had on hand for sale. That Worth Hogan was employed by the Langford Motor Company doing business in the city of Wichita Falls as foreman and service manager of the repair department of that branch of its business handling Lincoln cars, and one of the duties of his employment was to see that the cars under his supervision were properly serviced and repaired, and to test the cars by driving them for the purpose of locating any defects in their construction or condition. That deceased took the car which he was driving at the time of the accident from the shop for the purpose of testing the brakes, and after leaving the shop, and within a short distance therefrom, he overtook Miss Cecil Adkins and Miss Frances Willan, two young ladies who were walking to their respective homes, and invited them to ride with him to their homes, which invitation was accepted, ,and those two young ladies were with him in the ear at the time of tlie accident, which.occurred after he had driven them some seven or eight blocks.

W. S. Langford was the sole owner of the business transacted by the Langford Motor Company, and one Mr. Edwards was next to him in authority, and Claude S. Bed was the general manager over the business handling Lincoln cars, and the deceased was employed by Bed. Bed was absent from the shop at the time the Lincoln car was taken out by the deceased and prior to the accident knew nothing of the circumstances which caused the deceased to drive the car on the occasion ' of the accident. Langford was absent from the city and was.likewise ignorant of those circumstances. It was necessary to drive the cars on the highways of the city or county for the purpose of testing them for defects, and the deceased frequently made such tests under instructions of Bed. Bed did not know of any defects in the ear prior to the accident and did not instruct the deceased to make the test. The deceased was a highly skilled mechanic and an efficient employee, was familiar with the rules of the service of his employer, and prior to the accident had never violated any rule or regulation of his employer. When the car was taken out by the deceased it was standing on the curb in front of the shop, due to the congestion of ears inside the shop. By one of the rules of the company its employees were forbidden to take passengers for rides while making tests of ears to discover defects therein. By another rule of the company employees were forbidden to drive the cars solely for their own personal use without the consent of the employer or some one in authority, and no one in authority had given the deceased permission to drive the car in question for his own private use.

The case was tried before a jury, and the followng are the special issues submitted to them, with their findings thereon:

“(1) Were the fatal injuries, if any, sustained by Worth E. Hogan, on April 13,1925, sustained by him in the course of his employment for the Langford Motor Company?
“Instruction No. 1. In this’ connection you are instructed that the term ‘injury in course of employment,’ as used in this charge, shall include all injuries of every kind and character having to do with and originating in the work, business, trade, or profession of the employer, received by the employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere. Answer. Yes.
“(2) Was it the sole purpose or intention Of Worth E. Hogan, in making the trip in question on the occasion of and at the time .of his sustaining the said fatal injuries, to take either or both of the young ladies home? Answer. No.
“(3) Was Worth E. Hogan, at the time of the accident, on an independent mission of his own? Answer. No.”

C. M. Tower and Boy Eox, who were employees of the Langford Motor Company and worked with the deceased, testified that immediately before Worth Hogan left the shop with the Lincoln ear, he stated to them that he was going out to drive a car for the purpose of testing it, and their testimony shows without question that he had reference to the Lincoln ear which he afterwards drove.

Miss Cecil Adkins testified that she had Miss Willan got in the car with the deceased, the latter stating to them that he was trying out the car which he was driving in order to see whether or not the brakes thereon would work, and that after driving it a short’ distance he pushed on. the brakes and then stopped suddenly and remarked that the brakes were working'all right.

Assignments of error are addressed to the action of the trial court in overruling appellant’s objections to all of that testimony, on the ground that the same was hearsay and therefore incompetent. Those assignments are overruled since the declarations so made by the deceased were contemporaneous with his act of driving the ear, were explanatory of his purpose in so doing, and therefore were admissible under the rule of res geste. I. & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902 ; 22 Corpus Juris, 446-448, and many decisions including those of the appellate courts of this state cited in the notes to the text; also Maryland Casualty Co. v. Kent (Tex. Civ. App.) 271 S. W. 929.

Following are provisions of the Workmen’s Compensation Law, as shown in article 8309, Bev. Statutes of 1925:

“The terms ‘injury’ or ‘personal injury’ shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom,
“The term ‘injury sustained in the course of employment,’ as used in this law, shall not include:
“1. An injury caused by the act of God, unless the .employee is at the time engaged in the performance of duties that subject him to a greater hazard from the act of God responsible for the injury than ordinarily applies to the general public.
“2. An injury caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employ-’ ment.
“3. An injury received while in a state of intoxication.
“4. An injury caused by the employee’s willful intention and attempt to injure himself, or to unlawfully injure some other person but shall include all other injuries of every kind and character having to do with and originating ini the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of. the affairs or business of his employer whether upon the em ployer’s premises or elsewhere.”

The facts recited clearly show ,that the injuries which Worth Hogan sustained had to do with and originated in the business of his employer, and that they were received by him while he was engaged in or about the furtherance of that business, within the meaning of the statute quoted, and sustained the judgment rendered, notwithstanding the fact that as an incident to the performance of those duties he was violating one of the rules of his employment in taking the two young ladies with him in the car for a drive to their homes, and notwithstanding the further fact that he had no specific instruction from Red to make a test of the car he was driving. To hold that, although he was performing one of the duties of his employment, no right of action accrued because of a violation of some other rule of the employment, which was merely incidental to a performance of those duties and which were neither the sole nor contributing cause of the accident, would .be to read intd the statute a qualification or condition which would make the absolute and unconditional right given by the statute a qualified or conditional right only. And this the courts are not authorized to do. Lumberman’s Recip. Ass’n v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402; Kirby Lumber Co. v. Scurlock, 112 Tex. 115, 246 S. W. 76; Jones v. Casualty Recip. Exch. (Tex. Civ. App.) 250 S. W. 1073 (writ of error denied); Consolidated Underwriters v. Breedlove, 114 Tex 172, 265 S. W. 128, by Com. of Appeals.

In Quarles v. Lumbermen’s Recip. Ass’n (Tex. Civ. App.) 293 S. W. 333, an employee of a planing mill owned by a lumber company, in violation of a rule of the company expressly forbidding him so to do, went into a box factory and there undertook to operate hazardous machinery, and while so doing was injured. It was held that he was not entitled to relief under the Workmen’s Compensation Law because the work of operating the machinery in the box factory was not* in the scope of his employment.

In Consolidated Coal Co. v. Ratliff, 217 Ky. 103, 288 S. W. 1057, by the Court of Appeals of Kentucky, a day coal laborer was killed while working in a mine at night without express permission of the foreman and solely for his own purpose and convenience, and it was held that he was not injured in the course of his employment, within the meaning of the Workmen’s Compensation Law of that state.

In Leonard v. Cranberry Furn. Co., 150 Tenn. 346, 265 S. W. 543, by the Supreme Court of Tennessee, an ore shoveler was injured while loosening a supporting chain of floor doors of a freight car in violation of positive instructions of his employer, and it was held that he was not entitled to recover under the Workmen’s Compensation Law of that state.

Each of those cases cited by appellant is clearly distinguishable from the case at bar, in that in each of those eases the employee was injured while performing some act in violation of a rule of employment specifically forbidding the act, while in the suit at bar the act of Worth Hogan in testing the car was in performance of a duty for which he was employed and was not forbidden by any rule of his employment. The taking of the young ladies to ' ride with him in the car and the testing of the car without specific instructions from Red were merely incidental and did not in any manner contribute to cause the accident.

Other assignments are presented to the refusal of the court to submit to the jury the following issues which were duly requested:

“No. 1. Was the deceased, W. F. Hogan, at the time of the accident driving a car belonging to the Langford Motor Company without the consent of Mr. O. S. Red or W. S. Lang-ford? ,
“No. 2. Was it part of the duties of W. F. Hogan as an employee of the Langford Motor Company to taire Cecil Adkins and the other lady home after his work hours were over at Langford Motor Company ?
“No. 3. Was the deceased, W. F. Hogan, at the time of the accident in carrying the young ladies home doing anything to further the worir, business, trade, or profession of the Lang-ford Motor Company?
“No. 4. Was it part of the duties of W. F. Hogan1 as an employee of the Langford Motor Company to take young ladies home from work after he was off duty at the shop of the Lang-ford Motor Company?
“No. 5. Did W. F. Hogan at the time violate a rule of the Langford Motor Company in taking Miss Cecil Adkins and her companion home on the evening of April 13, 1925, when he met his death ?
“No. 6. Was the deceased, W. F. Hogan, at the very time of the accident in taking the young ladies home on an independent mission of his own?”

From the undisputed facts recited above and for the reasons already noted, findings in appellant’s favor on any one or more of those requested issues would not have defeated a recovery. Furthermore, as rioted already, there was no conflict in the testimony bearing upon any of thosé issues, in the absence of which the court was not required to submit them; and the principal issue requested as to whether or not the deceased was upon a private mission other than a mission for his employer was submitted by the court in the main charge and determined adversely to appellant.

Accordingly, all assignments to the refusal of those requested issues are overruled, and the judgment of the trial court is affirmed.
      ig^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <£=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LESLIE, J.

text:
    J. M. RADFORD GROCERY CO. v. GARNER et al.
    (No. 415.)
    Court of Civil Appeals of Texas. Eastland.
    March 9, 1928.
    Appeal and error @=>1071 (I) — Failure to file findings and conclusions, as requested, not appearing harmless, is reversible error.
    Judgment will be reversed for failure of court to file findings of fact and conclusions of law, on proper request therefor, there being no statement of facts, and appellate court being unable to say that appellant was not injured by such failure to file.
    Appeal from Taylor County Court; Tom K. Eplen, Judge.
    Action by M. A. Garner and husband against the J. M. Radford Grocery Company. From adverse judgment, defendant appeals.
    Reversed and remanded.
    W. E. Lessing, of Abilene, for appellant.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellees.
   LESLIE, J.

This appeal is from a judgment in the county court, Taylor county, Tex., in favor of appellees, M. A. Garner et vir, against appellant, Radford Grocery .Company, a corporation. Trial was before the court, and findings of fact and conclusions of law were requested. None were made and filed in the record as by law prescribed, though the trial judge’s qualification to the bill of'exception complaining of the above omission indicates he made the findings, placed same in the hands of attorney for plaintiff, and called the attention of attorney for defendant (appellant) to the same.

In the record before us there is neither a statement of facts nor findings of fact and conclusions of law.

We have carefully read the pleadings, and they indicate that this litigation grows out of an attempt on the part of M. A. Garner, joined pro forma by her husband, to enjoin the levy upon her personal property of an execution. The execution is based upon a judgment against her in another cause in which the Radford Grocery Company was plaintiff. The pleadings in this cause disclose a direct attach by the Garners on the previous judgment on the alleged ground that that suit was filed against said M. A. Garner, a married woman, and judgment was taken against her without her husband being made a party to the suit. Other issues are suggested by the pleadings, and from them alone it is conceivable that the execution might have issued upon a judgment either void, voidable, or valid. Assuming the pleadings tó indicate the nature of each litigant’s testimony, clearly such testimony, if any, was conflicting, and a judgment for either might have found ample support. Hence we are unable to say the appellant- could not have been injured by the court’s failure to file .the requested findings of fact and conclusions of law, but we are of the opinion he was hindered and injured in making a fair presentation of this appeal. So viewing the record; it becomes our duty to reverse the judgment of the trial court. Hanlon Gasoline Co. v. Henley (Tex. Civ. App.) 293 S. W. 914; Galveston, H. & S. A. Ry. Co. v. Stewart & Threadgill (Tex. Com. App.) 257 S. W. 526.

. The facts of the last case cited presented a situation analogous to that presented by this record. The conclusion of the court was expressed in this language:

“Therefore, as we view it, in no case where the trial judge has failed upon request to file his findings-of fact and conclusions of law, and where no statement of facts is filed, can the cause be properly disposed of otherwise than by reversal unless some other part of the record shows that no injury could have been sustained by the appellee by such failure.”

Other assignmentsi complain of matters that will not arise on another trial. It is unnecessary to discuss them here.

For the reasons assigned, the judgment of the trial court is reversed,' and the cause remanded.


author: RANDOLPH, J.

text:
    SHEPARD et al. v. E. L. RICE & CO.
    (No. 2970.)
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 15, 1928.
    Rehearing Denied March 21, 1928.
    1. Sales @=>355(1) — Evidence attacking consideration for written sales contract was inadmissible, in absence of plea of failure of consideration.
    In seller’s action on written contract or order for purchase of merchandise executed by buyers which with receipt also executed by buyers was introduced in . evidence, evidence attacking consideration for contract was inadmissible, in absence of sworn plea of failure or partial failure of consideration or any such plea.
    2. Sales @=>59 — Buyers retaining part of goods held not in position to allege fraud as defense to seller’s suit on sales contract.
    Where buyers retained showcase, which they offered to pay for at contract price, and tendered back only part of goods, they could not allege seller’s fraud and thereby invalidate contract.
    Appeal from Lubbock Oounty Court; Charles Ñordyke, Judge.
    Suit by E. L. Rice & Co. against F. G. Shepard and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Ratliff & Peticolas, of Lubbock, for appellants.
    L.A. Howard, of Lubbock, for appellee.
   RANDOLPH, J.

This suit was filed by appellee in the county court of Lubbock county, against the appellants, upon a contract in writing, whereby appellants purchased certain goods, wares, and merchandise from appellee. On the trial of the case, the court instructed the jury to return .a verdict for the plaintiff appellee and judgment was entered upon such verdict as returned.

As stated above, the plaintiff’s suit was based on a written contract or order for,the purchase of merchandise, signed by the defendants. The defendants’ filed answer consisting of general demurrer, general denial, and special plea, which special plea alleged that the contract sued on was obtained by the fraudulent representations of plaintiff’s agent or salesman, whereby defendants were induced to enter into the contract; such representations being “that he (the agent) would make a special selection of jewelry for the defendants under this contract so that the sizes of the jewelry named in the contract would not correspond with the sizes of the samples shown to the defendants, but would be jewelry of smaller sizes and of a more marketable quality. He further represented, in substance, to the defendants that he had sold but one like bill of jewelry in Lubbock, and that he would not sell any more jewelry to merchants in Lubbock, other than the Dill to be sold to the defendants” ; alleging falsity of such representations, that they were made for the purpose of inducing defendants to enter into said contract, and were relied on by defendants, etc.

On trial of the casé, as stated above, the court instructed the jury to' return a verdict for the plaintiff, and then rendered judgment upon such verdict in plaintiff’s favor.

The main question requiring discussion in this case is: The-plaintiff having introduced the written contract of purchase and the receipt for the goods executed by the defendants, was evidence attacking the consideration of such .contract admissible, in the absence, not only of a sworn plea of the failure of consideration, or partial failure of consideration, but also in' the total absence of any such plea?

The introduction of the instrument sued on in evidence, together with the acknowledgment of the receipt by defendants of the goods, in the absence of such plea, entitled the plaintiff to a judgment, and the court’s action in excluding such evidence and instructing a verdict for the plaintiff was not error. Lindley v. Nunn (Tex. Civ. App.) 42 S. W. 310.

The defendants could not allege fraud, and the invalidating of the contract thereby, and then defend by tendering a. part of the goods back to plaintiff, without making tender of all the goods received by them, which were in their possession. In this case, the defendants retained and were using the, showcase which they offered to pay for at contract price. Dalton Adding Machine Co. v. Wicks & Co. (Tex. Civ. App.) 283 S. W. 642; J. B. Colt Co. v. Head (Tex. Com. App.) 292 S. W. 198.

There being no reversible error, the trial court’s judgment is. affirmed.
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author: BUCK, J.

text:
    STANDARD SAVINGS & LOAN ASS’N et al. v. SNYDER-BELL GROCER CO.
    (No. 11900.)
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 23, 1927.
    Rehearing Denied Feb. 4, 1928.
    1. Appeal and error <⅜=>733 — Assignments complaining that court erred in rendering judgment, that judgment was contrary to law and evidence and not authorized by pleadings, held too general.
    Assignments of error complaining that court erred in rendering judgment, that judgment was contrary to law, contrary to evidence, and was not authorized by the pleadings, held too general to warrant consideration on appeal.
    2. Garnishment <⅞=>180 — Plaintiff may take judgment for full amount of demand against garnishee who fails to answer fully (Rev. St. 1925, art. 4087).
    If the garnishee does not answer fully, plaintiff may take judgment against him for the full amount of his demand, under Rev. St. 1925, art. 4087.
    3. Garnishment 180 — Judgment against garnishee for full amount of debt held authorized, where garnishee’s answer alleged payment of moneys due defendants by virtue of defendants’ having filed replevy bond (Rev. St. 1925, art. 4087).
    Where, in garnishment proceedings, garnishee’s answer alleged that at time of service of writ he was renting house from one of defendants, and that He paid all moneys due to her, by reason of the fact that “said defendants in this case have filed a replevy bond,” court was authorized to enter judgment against garnishee- for full amount of debt, under Rev. St. 1925, art. 4087, inasmuch as garnishee failed to answer fully.
    On Motion for Rehearing.
    4. Garnishment <⅜=>241— On entry of judgment against garnishee, sureties’ liability- on defendant’s replevy bond becomes fixed for full amount held subject to the writ (Vernon’s Ann. Civ. St. 19125, arts. 4084, 4087).
    Where replevy bond has been given by defendant in garnishment proceedings, court may render judgment against principal and surety thereon for full amount held subject to the garnishment writ without notice or further pleading, under Vernon’s Ann. Civ. St. 1925, arts. 4084, 4087, since sureties’ liability on bond becomes fixed by the judgment, in the absence of fraud, accident, or mistake.
    5. Garnishment <§=»24,5 — Judgment against sureties on debtor’s replevy bond for full amount of plaintiff’s recovery against garnishee held authorized (Vernon’s Ann. Civ. St. 1925, arts. 4084, 4087).
    Where judgment was entered against garnishee in garnishment proceedings for garnishee’s failure to answer fully, court was authorized, under Vernon’s Ann. Civ. St. 1925, arts. 4084, 4087, to enter judgment likewise against bondsmen on debtor’s replevy bond for full amount of debt for which garnishee was held liable, without necessity of further pleading and notice to surety.
    Appeal from Tarrant County Court; P. J. SmaU, Judge.
    Suit in garnishment by Harry Snyder and W. L. Bell, doing business under the name of the Snyder-Bell Grocer Company, against John A. Hamilton and wife, defendants, and S3. D. Wilson, garnishee, in which the defendants filed a replevy bond. From a judgment for plaintiff on the replevy bond, the Standard Savings & Loan Association, surety, and others appeal.
    Affirmed.
    R. C. Armstrong, Jr., of Port Worth, for appellants.
    A H. Eaton, of Port Worth, for appellee.
   BUCK, J.

Harry Snyder and W. L. Bell, doing business under the name of Snyder-Bell Grocer Company, filed suit in garnishment against E. D. Wilson, who it was alleged was indebted to John A. Hamilton and his-wife, the Hamiltons being indebted ;to Snyder-Bell Grocer Company. It was alleged in the affidavit in garnishment that there was owing to the Snyder-Bell Grocer Company by the Hamiltons the sum of $383.74. The writ was issued, an,d the garnishee answered that he was not, at the time of the filing of the answer or at the time the writ of garnishment was served on him, indebted to either of the Hamiltons, or in possession of any effects belonging to the said Hamiltons, or either of-them, except as hereinafter set forth. He further answered that at the time the writ was served upon him he was renting a house from the defendant Mrs. John A. Hamilton for $50 a month, hut that he paid all moneys due to the said Mrs. Hamilton by reason of the fact that said defendants in this cause have filed a replevy bond. Mrs. Hamilton filed an answer in which she demurred to the answer filed by the garnishee and alleged that it did not state sufficient facts to warrant a recovery against the garnishee. She further alleged that she was the owner of the property located at 321 Hemphill street, and that it was a part of her separate estate, and that moneys derived from rent of said prop: erty were not subject to the debts of John A. Hamilton. Judgment was rendered for the Snyder-Bell Grocer Company against E. D. Wilson, garnishee, by default. The judgment further recited that the Snyder-Bell Grocer Company had recovered judgment against the defendant John A. Hamilton in the sum of $373.74, with 6 per cent, interest from May 22, 1924, and costs of suit, and against Mrs. John A. Hamilton for the sum of $300 and interest from the same date at 6 per cent, and costs of suit; that the amount of said judgment, costs, and interest to date is $386.30; that Mrs. Hamilton, joined by her husband, replevied the funds to which the garnishment writ was directed by giving a bond in the sum of $800, with R. C. Armstrong, Jr., and Ben D. Simon as sureties. The judgment further recited that it appeared to the court that the funds garnished and replevied constituted an indebtedness due Mrs. Hamilton from Wilson, garnishee, as .rent, and it further appeared to the court that the said amount previously due and owing by said garnishee to said defendant and replevied was subject to plaintiffs’ writ of garnishment, and that plaintiffs are entitled to recover judgment from said garnishee for the amount of plaintiffs’ judgment against the defendant Mrs. Hamilton in the main suit, together with interest and costs, less the sum of $80, which is the amount of judgment rendered in favor of Snyder-Bell Grocer Company against E. D. Wilson in another cause in which the parties litigant were involved. Judgment was rendered for the Snyder-Bell Grocer Company against E. D. Wilson, garnishee, in the sum of $306.30. The judgment further recites that the answer to the garnishment writ was defective and insufficient, in that it did not state the amount of the garnishee’s indebtedness to Mrs. Hamilton, but merely stated that a replevy bond had been filed and the garnishee had paid the said Mrs. Hamilton all moneys due her; that said answer was equivalent to no answer to all. From this judgment Mrs. John A. Hamilton; John A. Hamilton, the Standard Savings & Loan Association, R. C. Armstrong, Jr., and Ben E. Simon have appealed.

Opinion.

The only assignment in the transcript is as follows:

“The court erred in rendering judgment in the above entitled and numbered cause in favor of the plaintiffs Harry Snyder and W. L. Bell.”

Appellants have three other assignments copied in their brief, to wit:

“(2) Said judgment is contrary to the law.
“(3) Said judgment is contrary to the evi- . dence.
“(4) Said judgment is not authorized by the pleadings.” ,

All of these assignments are too general to warrant consideration by this court. Nor do we discover any fundamental error in the judgment. The judgment of the court is based upon a defective and insufficient answer of tbe garnishee. The answer wholly failed to inform the plaintiff of the amount of money which the garnishee owed the defendant, in that part of the answer in which he stated he had owed her some money, but that it had been replevied. If the garnishee does not answer fully, plaintiff may take judgment against him for the amount of his demand. Article 4087, Rev. Civ. Statutes of 1925; Selman v. Orr, 75 Tex. 528, 12 S. W. 697; Holloway Seed Co. v. City National Bank, 92 Tex. 187, 47 S. W. 95, 516, by the Supreme Court; Jemison v. Scarborough, 56 Tex. 358; Oklahoma Petroleum & Gasoline Co. v. Nolan, 253 S. W. 650. In the last-cited case by this court, the garnishee answered that it had no goods or money in its possession belonging to the defendant in garnishment at the time the writ was served on it, but did not specifically deny that it had no such goods at the time the answer was filed, or between the time the writ was served on it and the filing of the answer. It was held that the answer was defective and authorized the court to render a personal judgment against the garnishee. While the garnishee here did answer in a part of his petition that he was not at the time said writ was served on him indebted to Mrs. John A. Hamilton or John A. Hamilton, “except as hereinafter set forth,” yet he further stated that at the time the writ was served on him he was renting a house from the defendant Mrs. John A. Hamilton, and that he had paid all moneys due to her by reason of the fact that “said defendants in this cause have filed a replevy bond as provided by law.” Evidently the garnishee meant to say, and his language, reasonably construed, means, that he had some money belonging to Mrs. Hamilton, or was owing her some money, but that, subsequent to the service of the writ, Mrs. Hamilton and her husband replevied the money. In Oklahoma Petroleum & Gasoline Co. v. Nolan, supra, this court said;

“If an evasive or defective answer is filed by the garnishee, judgment may be entered against him by the court without striking out the answer. Such answer gives the trial court jurisdiction over the person of the garnishee, even though, as in the instant case, the garnishee is-a nonresident of the county or state where the suit is pending” — citing cases.

We see no reversible error in the record, and therefore the judgment below is affirmed..

On Appellants’ Motion for Rehearing.

Appellants, while admitting that the trial • court correctly held the garnishee liable for the full amount of the debt, inasmuch as the answer of the garnishee was defective, yet insist that the trial court erred in awarding judgment against the bondsmen on the re-plevy bond for said amount; that such error is fundamental. Under article 4087, Vernon’s Anno. Stats. 1925, it is provided:

“The garnishee shall in all cases after lawful service file an answer to the writ of garnishment on or before appearance day of the term of the court to which such writ is returnable', and should the garnishee fail to file such answer to said writ as herein required, it shall be lawful for the court, at any time after judgment shall have been rendered against defendant, and on or after appearance day, to render judgment by default, as in other civil cases against such garnishee for the full amount of such judgment against the defendant, together with all interest and costs that may have ae-cru'ed in the main ease and also in the garnishment proceedings. The answer of such garnishee may be filed as in any other civil case at any time before such default judgment is rendered.” •.

Article 4084 provides in part:

“The defendant may, at any time before judgment, replevy any effects, debts, shares, or claims of any kind seized or garnisheed, by giving bond, with two or more good and sufficient sureties to be approved by the officer who issued the writ of garnishment, payable to the plaintiff, in double the amount of the plaintiff's debt, and conditioned for the payment of any judgment that may he rendered against the said garnishee in such suit, which when properly approved shall be filed among the papers in the cause in the court in which the suit is pending.” (Italics ours.)

Where a replevy bond has been given, the court may render judgment against principal and surety without further pleading and notice in a case where judgment has been rendered against thq garnishee, where a debtor replevies the claim garnished, the amount for which the obligors on the replev-in bond are liable is the full amount held subject to the writ. Seinsheimer v. Flanagan, 17 Tex. Civ. App. 427, 44 S. W. 30, writ of error refused. The judgment against the garnishee in this case was a default judgment. Oklahoma Petroleum & Gasoline Co. v. Nolan, 253 S. W. 650, by this court, writ refused; Kentucky Oil Corporation v. David (Tex. Com. App.) 285 S. W.,290, by the Supreme Court. See latter case by Court of Civil Appeals. 276 S. W. 357. In the absence of fraud, accident, or mistake, the sureties’ liability on the bond becomes fixed. Texas Co. v. Disney (Tex. Civ. App.) 279 S. W. 280, writ refused.

The motion for rehearing is overruled.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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text:
    FORTENBERRY v. WARREN BROS.
    (No. 11904.)
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 21, 1928.
    1. Reformation of instruments @=>36(2) — Supplemental petition stating note installments were, by agreement, payable on certain dates and dates previously stated were used by parties’ mistake, held tantamount to pleading mutual mistake.
    Where plaintiffs sued defendant on two notes, one being an installment note, setting forth dates of payment, and in supplemental petition they set out that dates of payment stated in installment note were wrong, in that parties had agreed installment payments should be made on dates as set forth in supplemental petition, held, that such allegations were tantamount to pleading that installments were payable on dates set forth in supplemental petition, and that dates used in original petition and on notes were used by parties’ mutual mistake.
    2. Pleading @=3237(3) — Permitting petition amendments at trial to conform to evidence held not error, where continuance not asked nor surprise claimed (Rev. St. 1925, art. 2001).
    Under Rev. St. 1925, art. 2001, in suit on notes, permitting amendments of petition to be made at trial relative to dates of .installment payments of one note, so that pleading would conform to evidence, held not error, where defendants made no claim of surprise and did not ask for continuance.
    Appeal from District Court, Knox County; J. H. Milam, Judge.
    Action by Warren Bros, against Mrs. Carry Fortenberry. From the judgment, defendant appeals.
    Affirmed.
    Jas. A. Stephens and D. J. Brookreson, both of Benjamin, for appellant.
    M. F. Billingsley, of Munday, for appellee.
   BUCK, J.

Only one question is presented on this appeal. Plaintiffs below, E. Q. Warren and H. M. Warren, doing business at Knox City, sued Mrs. Carry Fortenberry, a feme sole, on two notes, one for $127.80, dated July 31, 1926, and one for $379.20, payable in three installments of $126.40 each. It was alleged in the original petition that the due dates of the notes were, first, that the note for $127.-80 was due October 31, 1926, and that the second note for $379.20 was payable in three installments, to wit, the first for $126.40, payable October 31,1926; the second for $126.40, payable January 1,1926; and the third, April 31 (30?), 1926. Before judgment was rendered, and doubtless before the admission in evidence of the notes and the chattel mortgage securing them on a Ford coupé, plaintiffs filed a supplemental petition, in which they alleged: That the due dates of the notes, as indicated in said notes and in the chattel mortgage securing the same, were intended to be by both parties and should have been as follows: The first note for $127.80 was due October 31, 1926, and the second note was payable in three installments, the first October 31, 1926, the second January 31, 1927, and the third April 31,1927 (30?). And that the correct due dates of said notes as given in the mortgage as to the last two installments of the second note were and should have been given as in 1927 instead of 1926. That such was the agreement of the parties plaintiffs and defendant, and that the error in the said due dates was by mistake. The plaintiffs do not say in their supplemental pleading that the mistake was a mutual mistake of plaintiffs and defendant, but do say that the agreement of the parties was that said last two installments should be payable in 1927. We think this is tantamount to saying that the last two installments were payable in January and April of 1927, and that the 1926 date was used by mutual mistake of the parties and inadvertently. An objection was made to the filing of this supplemental petition and to the introduction of the notes in evidence; the defendant claiming a variance between the allegata and the pro-bata.

Under article 2001, Rev. Oiv. Statutes of 1925, it is provided that parties may amend their pleadings when court is in session, under leave of'the court, upon such terms as the court may prescribe. before the parties announce ready for trial, and at such a time as not to operate as a surprise to the opposite party. Certainly, it could not be held that this amendment, pleaded in the supplemental petition filed by plaintiffs, surprised the defendant. If she executed the notes at all, and no sworn denial of such execution is shown in the record and no testimony to that effect in the statement of facts, she knew that said two last installments were payable at a date subsequent to the date of execution, to wit, July 81, 1926, and not anterior thereto. Trial amendments to conform to the evidence, where defendants do not claim surprise and do not ask for a continuance, as is true in the instant case, are not grounds for reversal. Merchants’ Ins. Co. v. Reichman (Tex. Civ. App.) 40 S. W. 831; Fleming v. Pringle, 21 Tex. Civ. App. 225, 51 S. W. 553 (writ of error refused); and other cases cited in the notes under Vernon’s Ann. Tex. Statutes 1925, vol. 5, p. 172.

The statement of facts on file contains this language:

“It is further agreed that at the time of the execution of the notes, hereinbefore set forth, that the plaintiffs Warren Bros, were to have a lien upon the automobile described in the notes and mortgage, to secure the note of $127.-80, as well as the installment note of $379.20, and that a mutual mistake was made in the due date of the installments of the installment note of $379.20, and that the correct dates of maturity as agreed upon should have been October 3i; 1926, January 81, 1927, and April 31, 1927, and’ that the agreement as to the due date of the note for $127.80 was October 31, 1926, and that through mistake or error the dates were not made correctly as shown by such notes and mortgage. That nothing has been paid upon said notes or either of them, and [they] are the property of the said Warren Bros., plaintiffs in said cause.”

The statement of facts is signed by attorneys for plaintiffs and defendant and approved by the court.

We do not see any reversible error, and the judgment of the court below is affirmed.
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