author: DENTON, Chief Justice.

text:
    Bobby Wayne JACKSON v. Ronnie W. CLARK et al.
    No. 7079.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 2, 1961.
    Rehearing Denied Nov. 6, 1961.

      Albert Smith, Lubbock, for appellant.
    Shaver, Hurley & Sowder, Crenshaw, Dupree & Milam, Lubbock, for appellees.
   DENTON, Chief Justice.

Ronnie Clark and wife June Clark, along with D. L. Peterson, sued Tony L. Gibson and wife Donna Gibson and appellant Bobby Wayne Jackson for property damage to Peterson’s automobile and the Clark’s automobile air-conditioner which resulted from a collision involving three automobiles on February 24, 1959 near the intersection of 34th Street and Orlando Avenue in the City of Lubbock. No claim for personal injuries was made by any of the parties hereto. Trial was to a jury and based on the jury’s answers to the special issues submitted, the trial court entered a judgment for plaintiffs against Jackson for the sum of $1,750.

Prior to the collision appellant Jackson was driving his father’s 1951 Ford pickup in a westerly direction in the inside or center lane of 34th Street. Donna Gibson, one of the appellees, was driving her 1953: Chevrolet in the same direction and in the same lane that Jackson was driving. Her testimony was that she had followed the pickup for some two* blocks prior to the collision. She further testified she was approximately one and one-half car lengths behind Jackson’s pickup. Jackson testified he did not see the Gibson car until the two cars came in contact. As the two cars approached a point just beyond the intersection of 34th and Orlando Avenue the speed of the pickup was decreased. When Mrs. Gibson attempted to pass the pickup on the left the Gibson car struck the pickup in the left side. After this impact the Gibson car veered to the left and proceeded into the private parking area of a grocery store, and there struck the parked 1959 Chevrolet owned by Peterson. Mrs. Clark had driven the Peterson car to the parking lot, but no one was seated in this car at the time it was struck.

Appellant’s first two points of error complain of the trial court instructing counsel and all witnesses to refrain from mentioning that State Farm Mutual Insurance Company, insurer of the Gibsons, had entered into any agreement with Bobby Wayne Jackson following the collision; and of the trial court sustaining Gibson’s exception to Jackson’s pleadings which pleaded that State Farm had paid Jackson some damages sustained by him. It is appellant’s contention the settlement made by State Farm and Jackson is admissible as an admission or declaration against interest. He argues that State Farm and not the Gibsons is the real party in interest, and that by making the settlement with Jackson, the Gibsons could not be prejudiced by the admission of the settlement. Appellant also places a great deal of importance on the fact the Gibsons were not seeking a recovery of damages. Appellant relies principally on McEntire v. Baygent (Tex.Civ.App.) 229 S.W.2d 866, 20 A.L.R.2d 300 (no writ history) and Skelly Oil Co. v. Carter (Tex.Civ.App.) 316 S.W.2d 87 (no writ history). These cases, along with others therein cited, simply reaffirm the established rule of law that it may be shown that the defendant has paid the claims of other persons whose damages resulted in the same manner as the plaintiff. See also “Texas Law of Evidence,” McCormick & Ray, 2d Ed. Sec. 1150. This principle is not controlling under the facts and circumstances of the instant case, but applies where a settlement was made to another claimant by the named defendant in the case under consideration.

In the instant case State Farm made the settlement with Jackson. No effort was made to introduce the alleged settlement agreement, but appellant contends the allegations and pleadings must be accepted as true. We are aware of the rule that this Court must assume that the allegations are true in testing their sufficiency by a special exception; however, the pleadings make no assertion that the settlement was made with the knowledge or consent of the Gibsons. In our opinion knowledge and consent on the part of the insured is essential before evidence of a settlement of a claim by the insurance company with another claimant would be admissible in a suit where the insured and the other claimant are parties. Appellant contends that the allegation “Thereafter, State Farm Mutual Insurance Company, acting for itself and as the representative of Tony L. and Donna Gibson” implies knowledge and consent of the settlement on the part of the Gibsons.

The insurance policy gave State Farm the authority to settle the claim with Jackson but to say the company, in making the settlement, was acting as the agent of Gibson and as the agent its act was that of the principal is not supported by the authorities. City Transportation Co. of Dallas v. Vatsures (Tex.Civ.App.) 278 S. W.2d 373, 375 (error dismissed) is very similar to the instant case. There Vatsures brought suit against the transportation company and one John Thomas Taylor for injuries sustained as a result of a collision involving a taxicab owned and operated by the transportation company and an automobile owned and operated by Taylor. Vatsures was a fare-paying passenger in the cab. The trial court excluded evidence of a payment on behalf of Taylor to the transportation company in full settlement of that company’s claim against Taylor for their damages arising out of the collision. In holding that such evidence was not admissible, the court used the following language:

“It is settled law that the payment of a claim in full can be offered as an admission against interest or of liability against the party paying the claim. However, the point here involved is not that proposition of law, but whether a payment by an insurance company of a claim against their insured may be used as an admission against interest or of liability against the insured upon the trial of a claim arising out of the same accident. The reason that the payment of a claim in full becomes admissible as evidence of an admission against interest or of liability against the party paying the claim is that the payment indicates that the party paying the claim felt himself liable, or otherwise he would not have paid the claim in full, but would have resisted it or at least compromised the claim. Such reasoning cannot apply to the situation here involved. This suit is a suit against Taylor which the Allstate Insurance Company, under the terms of its policy, undertook to defend. The Allstate Insurance Company is not a party to the suit and could not become a party to the suit. Defendant Taylor is the party at interest in the suit and is the only one against whom there can be admissions against interest or admissions of liability. Yet the record reflects that Taylor had absolutely nothing to do with the $53.38 paid to the City Transportation Company. Certainly, it cannot be said that actions taken without his knowledge or consent can constitute admissions against interest or of liability as to him.”

See also Hurley v. McMillan (Tex.Civ.App.) 268 S.W.2d 229 (refused n. r. e.)

Appellant attempts to distinguish the instant case from the Vatsures case, but the only significant distinction between the two is the difference in the procedural approach taken by the respective defendants. The Vatsures case makes no mention of any pleadings of the transportation company pertaining to the settlement with Taylor, while the appellant in the instant case plead the settlement with Gibson’s insurance company and Jackson. Apparently the transportation company in the Vatsures case merely attempted to introduce evidence of the settlement. The sustaining of Gibson’s special exception to the above-mentioned pleadings had the effect of ruling that the evidence of the settlement was inadmissible. We think such a distinction is immaterial, and is not sufficient to render the principle of the Vatsures case inapplicable here. Appellant seems to place a great deal of emphasis on the fact the Gibsons were not seeking the recovery of damages in any form. The court in the Vatsures case made no such distinction where Taylor, who was being sued along with the transportation company, did not seek any affirmative relief. It is to be further noted in the language quoted above the court used the phrase: “ * * * admissions against interest or of liability * * ” (Emphasis added.) It seems the court is placing equal emphasis on an insured’s interest in being able to obtain a recovery for his damages, or being able to resist liability for damages being sought against him. By seeking indemnity from Jackson, the Gibsons were properly asserting an effort to resist liability for the damages suffered by the plaintiffs. This conclusion must be reached in spite of the fact State Farm was obligated under the terms of the insurance policy to defend the suit. We therefore overrule appellant’s first fwo points of error.

By the next three points of error appellant contends the jury’s findings that Mrs. Gibson was not negligent; that she did not attempt to pass a vehicle in the same lane of traffic in which she was traveling; and that she was confronted with a sudden emergency, and that she thereafter exercised ordinary care, are against the great weight and preponderance of the evidence. By the next two points appellant takes the position the jury’s findings that appellant was negligent; and that the finding he did not stop his automobile are against the great weight and preponderance of the evidence. Because of the nature of these five points of error, we deem it expedient to discuss them together. Under these assignments we must weigh all the evidence in passing on these questions of fact. In re King's Estate 150 Tex. 662, 244 S.W.2d 660.

In response to the special issues the jury exonerated Mrs. Gibson of any negligence while they found Jackson negligent with respect to lookout, turning left without a proper signal, and attempting to turn left from inside lane, and each act of negligence was a proximate cause of the collision and resulting damages. Conflicting testimony was introduced on most of the material questions involved including whether Jackson’s pickup was stopped immediately prior to the collision; and whether or not he turned the pickup slightly to the left. Charles R. Tierce was the only disinterested witness to the actual collision, and by his own testimony he was some three-quarters of a block away when it occurred. The collision took place at approximately 9:00 o’clock p. m. and there was no testimony concerning the lighting conditions at the vicinity of the collision. It requires no citation of authority for the well-settled rule of law that it is the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony. In the instant case the jury accepted Mrs. Gibson’s version of the circumstances surrounding the collision. After reviewing all the evidence, we conclude the jury verdict was not against the great weight and preponderance of the evidence, and that the jury’s answers to the specific issues complained of were supported by the evidence.

Appellant further urges that a mistrial should have been declared by the trial court because of a conflict in the jury’s answers to special issues on the question of unavoidable accident. The trial court submitted separate unavoidable accident issues as follows:

“Special Issue No. 58
“Do you find from a preponderance of the evidence that the collision between the vehicle operated by Bobby Wayne Jackson and the vehicle operated by Donna Gibson was not the result of an unavoidable accident?
“Answer: ‘It was the result of an unavoidable accident’ or ‘It was not the result of an unavoidable accident.’
“Answer: It was not the result of an unavoidable accident.
“You are instructed that an unavoidable accident is an accident occurring without fault or negligence of either party to said accident, proximately causing the accident to occur.
“Special Issue No. 59
“Do you find from a preponderance of the evidence that the collision between the vehicle operated by Donna Gibson and the plaintiff’s vehicle was not the result of an unavoidable accident?
“Answer: ‘It was the result of an unavoidable accident’ or ‘It was not the result of an unavoidable accident.’
“Answer: It was the result of an unavoidable accident.
“You are instructed that an unavoidable accident is an accident occurring without fault or negligence of either party to said accident, proximately causing the accident to occur.”

Appellant made no objection to the form or manner in which these two issues were submitted, but did timely file a motion for a mistrial based on the ground of a conflict.

Although the trial court did not phrase the instruction in compliance with the Supreme Court’s holding in Dallas Railway & Terminal Co. v. Bailey (Sup.Ct.) 151 Tex. 359, 250 S.W.2d 379, appellant made no objection. Such error was therefore waived. Vardilos v. Reid (Tex.Civ.App.) 320 S.W.2d 419 (no writ history); Rule 274, Texas Rules of Civil Procedure. Therefore, any error that may have been committed in the wording used or the manner of submitting the two special issues having been waived, we are called on to determine whether or not there is a conflict in the jury’s answers to either of 'the unavoidable issues and issues finding appellant Jackson negligent.

It is apparent the trial court submitted the unavoidable accident issues on the premise that there were two separate and distinct collisions. In our opinion the test laid down by the Supreme Court in Bradford v. Arhelger, 340 S.W.2d 772 and A. B. C. Stores, Inc. v. Taylor, 136 Tex. 89, 148 S.W.2d 392, are not controlling here. In the instant case only one person was found negligent, and the jury found the collision was not an unavoidable accident as to that person. Clearly these are consistent findings. The answers of the jury to the special issues are not in such irreconcilable conflict that a judgment can not be entered on the verdict. The finding that the collision between the Gibson and Jackson cars was not the result of an unavoidable accident is not in conflict with the jury finding that Jackson was negligent. The finding that the collision between the Gibson car and plaintiff’s car was the result of an unavoidable accident is not in conflict with the jury finding that neither Mrs. Gibson nor the plaintiffs were con-tributorially negligent. We therefore conclude appellant’s contention is without merit.

Being of the opinion the record reflects no reversible error, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: ARCHER, Chief Justice. HUGHES, Justice

license: Public Domain

text:
    INTERNATIONAL SERVICE INSURANCE COMPANY et al., Appellants, v. DALLAS ASSOCIATION OF INSURANCE AGENTS et al., Appellees.
    No. 10884.
    Court of Civil Appeals of Texas. Austin.
    Oct. 25, 1961.
    Rehearing Denied Nov. 15, 1961.

      Heard L. Floore, Fort Worth, O’Quinn, McDaniel & Randle, Howell Finch, Austin, Will Wilson, Atty. Gen., Fred B. Werken-thin, R. V. Loftin, Jr., Asst. Attys. Gen., for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, W. H. Vaughan, Jr., Houston, Thompson, Coe, Cousins & Irons, Dallas, for appellees.
   ARCHER, Chief Justice.

This is an appeal from a district court judgment setting aside an order of the State Board of Insurance, and enjoining appellants from operating thereunder. The order approved a guaranty bond filed for approval by appellant, International Service Insurance Company, designed to guarantee payment of losses under fire insurance policies of other insurers, including appellant Fort Worth Lloyds, in the event the latter should become insolvent, be placed in receivership, or fail to pay a final judgment on the policy within thirty days.

The suit was filed by appellees Dallas Association of Insurance Agents and Floyd West and Company. Additional insurance companies and agents associations intervened as plaintiffs below.

Separate briefs are filed by International Service and the State Board of Insurance.

The appeal is founded on seven points in the brief of International Service and are to the effect that the Court erred in failing to dismiss the case where appellees failed to seek relief from the Board before filing the suit; in permitting various trade associations to maintain the suit in which they had no justiciable interest; in holding that the guaranty bond form is not a guaranty bond but is a fire insurance policy; in substituting its judgment for that of the Board; in holding that approval of the guaranty bond would permit International Service to issue fire insurance policies at unregulated rates; and in holding that the Board’s approval of the guaranty bond permitted unlawful discrimination.

The Board assigns as error the action of the Court in construing the guaranty agreement as a policy of insurance, thereby substituting its discretion for that of the Board and in setting aside the order of the Board, the law and the substantial evidence supporting such order.

This suit attacks order No. 2686 of the Board, which approved a guaranty bond form, together with rules and rates to be used by International in writing such bonds.

International filed its form, together with rules and rates applicable thereto on Decern-ber 4, 1959. This filing was disapproved by the Board on December 22, 1959, by order No. 2144. International requested a rehearing, and after which rehearing the Board by its order No. 2586, dated July 19, 1960, rescinded its original order disapproving the filing and approved the bond form together with the rate and rules applicable thereto, and its order that is under attack in this suit.

The guaranty bond filed December 4, 1959 was under Subchapter B of Chapter 5 of the Insurance Code, and it is made under Art. 5.15(a), V.A.T.S. Art. 5.15(c) allows the Board thirty days to disapprove such filing if it does not meet the requirements. The filing was disapproved and International requested a hearing,' and such was granted.

Art. 1.04(f) provides for a judicial review by a party at interest dissatisfied with any decision, etc. adopted by the Board, and makes provision for the filing of a suit after failing to get relief from the Board.

The guaranty bond form filed by International Service, which is what appears to be the controlling issue in this case, contains the following provision:

‘T. If the Company shall fail to pay to the Named Beneficiary the full amount which the Named Beneficiary is entitled to receive and to retain under any such policy heretofore or hereafter issued by the Company in which the Named Beneficiary has an interest within the time and in accord with the terms and provisions set forth in such policy because the Company is unable to pay, is judicially declared to be insolvent, or is placed in receivership, and for such reason, or any combination thereof, fails to discharge its obligation, in whole or in part, the International Service Insurance Company agrees that it will immediately become liable for that part of such amount which the Company has failed to pay, and will make payment for such amount as it shall become liable for directly to the Named Beneficiary by check made payable to the policyholder and the Named Beneficiary -as their interest may appear, subject, always, to the terms of such policy; provided, however, that this agreement shall not apply to any policy or group of policies providing a total amount of insurance on any one building of more than $ — .-. The Company shall be deemed unable to pay, as that language is used in this paragraph, if a final judgment be rendered against it and such final judgment is not fully paid and discharged within thirty days after the same becomes final.”

The Board’s order reads:

“No. 2586
Record of Official Action of the State Board of Insurance Austin, Texas
“Date July 19, 1960
“Subject Considered: International Service Insurance Company— Guaranty Agreement Form and Rules and Rates Applicable Thereto
“General remarks and official action taken:
“On this date the State Board of Insurance reconsidered a filing by International Service Insurance Company dated December 4, 1959 of a Guaranty Agreement Form and rules and rates applicable thereto which was disapproved by the Board on December 22, 1959 under Board Order No. 2144.
“After careful consideration the Board now rescinds its Order of December 22, 1959 and hereby approves the filing by International Service Insurance Company as previously filed on December 4, 1959.
“A copy of the filing is attached hereto and made a part of the Order.
“The approval of this filing does not authorize companies to attach any form of Guaranty Agreement to policies of fire insurance until such a form as the company proposes to attach has been filed and approved by the Board under the provisions of Article 5:36 of the Texas Insurance Code.
“State Board of Insurance
“See below
“Penn J. Jackson, Chairman
“Prepared by:
“s/ H. R. Lacy
“Director
“Bond, Burglary and Plate Glass Property Casualty Division
“Robert W. Strain
“Robert W. Strain, Member
“Ned Price
“Ned Price, Member
“The majority of the Board, over my protest, has already approved a guaranty agreement filing for General Reinsurance Corporation, setting a precedent which must be followed. We cannot make fish of one and fowl of another. At least International Service Insurance Company has a Certificate of Authority to participate in the writing of fire insurance. For these reasons I join in this order.
“Penn J. Jackson, Chairman.”

We believe the prime question in this case is one of law and determination must be made as to the legal effect of the instrument as being a guaranty bond or a fire insurance policy which was improperly filed and approved by the Board.

We believe that the agreement is one of guaranty and is not an insurance policy subject to Board regulation as to rates.

The agreement to be issued by International Service for delivery to the insured owner or mortgagee of property primarily insured by another insurance company against fire and extended coverage provides that if the guaranteed company fails to discharge its liability because it is “unable to pay, is judicially declared to be insolvent, or is placed in receivership,” International Service will pay the loss. Liability on the guaranty bond comes into existence when there is inability to pay a final judgment or a failure to pay such judgment.

Appellees take the position that the agreement is a fire insurance policy and cannot be issued unless the form is promulgated under Subchapter C of Chapter 5, of the Insurance Code.

There are some fire insurance companies whose premium rates are regulated by the Insurance Board by authority of Subchap-ter C, of Chapter 5 of the Insurance Code; others are not regulated, such as County Mutual and Lloyds Associations being exempt. In this case International Service is a regulated company and Fort Worth Lloyds is a nonregulated company.

Reinsurance between two Fire Insurance Companies is a usual if not a universal practice. In some instances reinsurance has been coupled with a direct contract between the reinsuring company and the insured with the existence of such 100 per cent reinsurance being pointed out by an indorsement on the face of the policy, together with a provision giving the insured a direct right of action against the reinsurer and in such, case the reinsurer had issued a policy of direct insurance and must charge premium rates promulgated by the Board.

As we have stated, the instrument is a guaranty agreement. It is possible that many fire losses could occur without any liability arising on the bond. The liability on the bond is contingent on failure to pay an established loss or insolvency, on the part of the original insure!', and the amount that such insurer is unable to pay becomes the amount of liability on the bond. The bond may be compared to a performance bond or guarantee and more properly regulated under Subchapter B of Chapter 5.

The Insurance Board has the responsibility of administering the insurance laws and has the responsibility of determining the nature of the contract.

Board of Insurance Commissioners v. Title Insurance Association of Texas, 153 Tex. 574, 272 S.W.2d 95.

The agreement form, hereinabove set out in part, which was approved by the Board, sets out and limits the liability of International Service to the failure of the guaranteed company to discharge its liability because it is "unable to pay, is judicially declared to be insolvent, or is placed in receivership” ; the occurrence of such event or events, International Service will pay the loss.

Art. 5.25 et seq. of the Code, authorizes the Board to promulgate rates of premiums to be charged and collected for contracts or policies of “fire insurance” and to establish uniform fire insurance policies. Art. 5.26(a) provides the rate of premium which must be charged and collected by companies, unless the companies comply with the statutory procedure whereby lesser premiums may be charged. Art. 5.27 of the Code defines the type of insurance contract or policy over which the Board is given such power and authority to govern companies issuing contracts or policies of insurance against loss by fire, etc.

Commercial Standard Insurance Co. v. Board of Insurance Commissioners, Tex.Civ.App., 34 S.W.2d 343, er. ref.

In a fire insurance policy, as defined in Art. 5.27, the “loss” or “event” insured against is “the hazard of fire” or “loss by fire.” This Texas statutory definition is in line with the generally accepted definition set out at 44 C.J.S. Insurance § 14, p. 477:

“Fire insurance or a fire insurance policy in the sense of its subject matter is a contract of indemnity by which an insurer, for a consideration, agrees to indemnify insured against loss of, or damage to, property by fire.”

Arts. 2.02 and 8.01 of the Code authorize the organization of insurance companies to conduct the business of fidelity, guaranty and surety insurance, and the writing of such is regulated by Art. 5.13 et seq., which authorizes the companies to file premium rates and forms with the Board, who may approve or disapprove of these rates and forms.

Guaranty insurance is defined as:

“ * * * a contract whereby one, for a consideration, agrees to indemnify another against loss arising from the want of integrity, fidelity, or insolvency * * * or against other breaches of contract; the business of guaranteeing the * * * performance by persons, firms, and corporations of contracts, bonds, recognizances, and other undertakings.” 44 C.J.S. Insurance § 16, p. 479.

also

“The contract of guaranty is an undertaking or promise on the part of one person which is collateral to a primary or principal obligation on the part of another, and which binds the obligor to performance in the event of nonperformance by such other, the latter being bound to perform primarily.” 24 Am.Jur., Guaranty, p. 873 ; 9 Apple-man, Insurance Law, Sec. 5273.

Texas Jurisprudence defines “guaranty” as “ * * * a promise of one person to perform an act * * * another is contractually bound to the promisee to perform, or a promise to pay compensation for the other’s nonperformance, the promise being conditioned upon the latter’s non-fulfillment of his duty * * * [it] is a collateral and secondary contract * * * ” 27 Tex.Jur.2d, Sec. 1, p. 279.

Each fire insurance company applying for a certificate of authority to transact business in Texas is required under Art. 6.09 of the Code to give security for the performance of its contracts in Texas. If a bond is made, the condition of the liability is “that said company will pay all its lawful obligations to the citizens of this State,” and such bonds shall be subject to successive suits,, etc.

The bonds under Art. 6.09 are on forms and rates approved by the Board.

We do not believe that the approval of the guaranty bond would permit International Service to issue fire insurance policies at unregulated rates.

The contention of appellees basically is that International Service, being a regulated company as to fire rates, is illegally permitted through the guaranty of policies of companies unregulated as to fire rates to thereby write fire insurance at unregulated rates.

In the instant case, the competition is for a class of highly profitable insurance on government housing. Much of the business was placed through cooperative placement bureaus and the premiums were divided among the members of trade associations. The Federal Housing Authority required the local Housing Authority to purchase fire insurance on a competitive bid basis from any qualified company, and the business became open to “deviators” and “unregulated companies.” In order to meet claimed inadequacies in financial structure of certain deviators or unregulated companies caused Fort Worth Lloyds, an unregulated company as to fire rates, to secure financial backing of its affiliate, International Service, in providing additional assurance that its commitment on housing projects would be met.

The guaranteed company under the approved bond may be one selling its fire insurance for the maximum rate permitted. Another guaranteed company may sell fire insurance at less than the manual rate, as permitted on Board approval under Art. 5.26, and is called a deviating company. Other companies may sell fire insurance at any rate they choose because they are not subject to rate regulation as to fire insurance and are referred to as “exempt” companies.

All companies generally are regulated as to policy forms, provisions for solvency, fair practices, etc.

Appellees have made counterpoints to the effect that the Trial Court did not err in holding order No. 2586 invalid; that appellees exhausted their administrative remedies prior to filing suit; that Dallas Association has a justiciable interest and is a proper party and if error, such is harmless.

Appellees in their brief say that for all practical purposes a law question is presented and is not a fact issue.

Appellees take the position that since Fort Worth Lloyds has assets of approximately $750,000 or a little more and that the inducement to buy fire insurance in Fort Worth Lloyds is not the solvency and financial size of Fort Worth Lloyds, but is the guaranty issued by International Service and that such agreement is tied to a reinsurance treaty. The further position is taken that if the agreement is a collateral fire insurance policy then the order is void, but that if the Guaranty Agreement is a Guaranty Bond then the Board’s order is valid.

The record in this appeal is long and careful consideration has been given to it and to the cited authorities.

In view of our holding that the Guaranty Agreement is a Guaranty Bond, it is not necessary to pass on the assignments directed to procedural matters.

We do not believe that the Board was arbitrary and capricious in approving the filing under Subchapter B of Chapter 5. We believe that the Trial Court erred in holding the order involved herein invalid and void.

The judgment of the Trial Court is reversed and judgment is here rendered in favor of the appellants upholding the Board’s order No. 2586.

Reversed and rendered.

HUGHES, Justice

(dissenting).

Believing that the agreement in suit is in essence and substance an agreement absolutely fixing the liability of the obligor, International, to compensate insureds for losses resulting from fire, I respectfully dissent.

Companies engaging in the fire insurance business in this State must, unless exempted by law or unless the right to deviate (sell for less) has been authorized by the Board, charge and collect premiums which have been “exclusively fixed and determined and promulgated by the Board * * Art. 5.26, Insurance Code.

Appellant Fort ¡Worth Lloyds is exempt from this statutory provision. Sec. (h) Art. 5.26, Insurance Code.

Appellant International Service Insurance Company, referred to infra as International, is not exempt from such statute, and it has not procured authority from the Board to charge a less premium than the Board has promulgated.

Fort Worth Lloyds sells fire insurance for premiums less than those fixed by the Board.

For background, and to make this dissent more intelligible, I quote and adopt the following uncontroverted portion of the brief for appellees:

“Several years ago, a practice grew up under which a small insurance company, 100% reinsured by a larger company, would issue its fire insurance policies to the members of the public; attached to those policies would be language, under the terms of which the policy holder was not only notified of the fact of reinsurance but, giving to the holder of the policy a direct right of action against the reinsuring company. In the record, these agreements are called ‘Reinsurance Assumption Certificates.’
“A number of the companies so issuing policies which were guaranteed by another company were companies which were either exempt from rate regulation or had been granted rate deviations. Normally, the company which guaranteed the issuing company’s policy would not have a deviation or be exempt. Thus, company A (the deviating or exempt company) was issuing policies of insurance at a rate different from or lesser than the power of the reinsuring company to issue.
“When this practice was called to the attention of the State Board of Insurance, it asked for and obtained an opinion of the Attorney General of the State of Texas.
“In substance, Attorney General’s opinion WW533 ruled that the practice was illegal when the exempt or deviating company was being reinsured by a company that was not exempt or deviated. As a result, first the Commissioner of Insurance, and then the State Board of Insurance prohibited the practice.
“Thereafter, Appellants and others, in order to achieve the same purpose, devised what has now become to be known as the ‘Guaranty Agreement’ or ‘Guaranty Bond.’ A reading of the entire examination of Mr. Frank Roberts, the Chief Executive Officer of Appellant Insurance Company makes it clear that the purpose of the Guaranty Agreement is exactly the same. However, we call your attention to Mr. Robert’s testimony:
“ ‘Q. Now, the vehicle that you speak of has been available in one form or another — and I think Mr. Floore used “changed in some of its aspects” prior to April of 1959, was the reinsurance certificate, wasn’t it? A. Yes, sir.
“‘Q. And that was the vehicle you used until the Board ordered you to cease and desist — ordered all companies to cease and desist from that practice, isn’t it? A. Right.
“ ‘Q. And this vehicle you are using now by way .of a Guaranty Bond takes the place of, and as far as you are concerned, the purpose is identical with the use of the reinsurance certificate; isn’t that correct ? A. I would say that it is in a modified form.
“ 'Q. But the purpose for which you intended is identical; isn’t that correct? A. I would say generally speaking, yes.’
* * * * * *
"It was admitted that International Service Insurance Co. and Fort Worth Lloyds are under common management. The undisputed record established that there is a substantial identity of ownership and management in the two companies. It was further admitted that the total assets of Fort Worth Lloyds are approximately $750,000.00 or a little more.
“It is abundantly clear that with a company of the ’ size of Fort Worth Lloyds, the inducement ’ to buy fire insurance in Fort Worth Lloyds is not the solvency and financial size of Fort Worth Lloyds but the guaranty issued by the stock company, International Service Insurance Company. For example, we call attention to the following testimony from Mr. Angus McDonald, long time staff member of the State Board of Insurance:
“ ‘Q. And please tell us whether or not the inducement to the mortgagee is not the fire policy, but the guaranty bond, the so-called guaranty bond ? A. Yes, sir.
“ ‘Q. And is that guaranty of payment present in the ordinary reinsurance situation, where one company re-insured part of its risk with another? A. No, sir.’
“That the Guaranty Agreement is tied hand in glove to a reinsurance treaty, we invite the attention of this Court to the following testimony from Mr. Frank Roberts, the proponent of the Guaranty Agreement:
“ 'Q. Would your company issue a Guaranty Agreement in favor of any company with which it did not have a reinsurance contract? A. No, sir.
“ ‘Q. So then it is safe to say, then, that as far as you are concerned, at least, that the Guaranty Agreement is necessarily tied to reinsurance? A. Well, I wouldn’t say it is tied to, but I would say it would be suicide to issue one that you don’t know anything about their insurance program, reinsurance program.’ ”

The agreement in suit has been set out in the Court’s opinion and will not be restated here. By its terms, if the “beneficiary” of the agreement sustains a fire loss, and the Company issuing the fire insurance policy is “unable to pay” the loss or is declared insolvent or placed in receivership, then International promises to pay the “beneficiary” the amount of his loss under the policy of insurance. “Unable to pay” is defined as any failure to pay within thirty days of a final judgment.

The brief of the Attorney General herein on behalf of the State Board of Insurance is predicated solely, as I understand it, on the assumption that “insolvency” of the insurer is required to activate 'liability under the agreement. I quote from its brief:

“Those who consider the instrument to be a guaranty agreement, as it purports to be, point to the fact that a hundred fires could occur without a single instance of liability arising on the bond; that the contingency which triggers liability on the bond is insolvency on the part of the insurer; that the amount that the insurer is unable to pay to the insured because of its insolvency is the amount of liability on the bond and hence, that the amount of fire loss does not necessarily determine the liability. * * *
“Numbered among those who consider the instrument as a guaranty bond is the State Board of Insurance.
******
“The filing provides ‘If the company shall fail to pay [because of insolvency] to the named beneficiary the full amount which the named beneficiary is entitled to receive * * * the International Service Insurance Company agrees that it will immediately become liable for that part of such amount which the company has failed to pay * * *
******
“It is the position of the State Board of Insurance that the risk insured against in this case is insolvency of the insurer. The fire risk is insured by virtue of the fire insurance policy. By the guaranty agreement the insured is protected against the insolvency of the fire insurer.”

This same assumption also appears to have been the basis of the conclusion reached by Board member, Dr. Robert W. Strain. I again quote from the Board’s brief:

“Dr. Strain, Board member and well-known insurance expert, whose qualifications in this field are set out on pages 304, 305 and 306, Statement of Facts — Temporary Injunction, testified that in his opinion the instrument was a guaranty bond. This opinion was based on the fact that two contingencies must exist before the guarantor is liable to pay under the agreement.
“ ‘The first contingency is the occurrence of a fire loss and the arising of an obligation between the policyholder and the fire insurer. The second contingency is the arising of insolvency on the part of the fire insurer. Those two contingencies, if they occur, make the guarantor liable under the guaranty agreement.’
“ ‘The actual liability, as pointed out by Dr. Strain, accrues “only when the second contingency arises, insolvency of the fire insurer.” In effect it is analogous to the typical performance bond; this being the basis under which Dr. Strain regards the guaranty agreement as a bond — “the fact that it is hinged on the failure of the fire insurer to perform, by virtue of the failure being defined as insolvency.” ’ ”

If these assumptions were sustained by the terms of the agreement, I would not have my present difficulty.

My concern, and the point of my dissent-is that the artificial definition given in the agreement for the words “unable to pay” makes for all practical purposes, an absolute and primary obligation on the part of International to pay all losses under policies issued by Fort Worth Lloyds.

No execution that I know of could be satisfied within thirty days after final judgment. The liability of International would attach before the ordinary execution could be satisfied. It would also seem to me that if this definition is controlling, that any definition of inability to pay, such as one based simply on a refusal to pay, would be just as valid and controlling.

Failure to pay an obligation may or may not connote inability to pay.

In Art 5.27 of the Insurance Code the Legislature very plainly stated its intent in legislating in this area stating:

“It being intended that every contract or policy of insurance against the hazard of fire shall be issued in accordance with the terms and provisions of this sub-chapter.”

I believe that the contract here insures against the hazards of fire, and that it is subject to regulation under the laws relating thereto.

Art. 5.13 of the Insurance Code, being the first article in Subchapter B of Chapter 5 which regulates Casualty Insurance and Fidelity, Guaranty and Surety Bonds provides, in part, that such regulations do not apply to “the writing of * * * fire * * insurance.”

This exclusion is significant in that it evidences a legislative intent to distinguish between fire insurance and the writing of guaranty bonds. It would also seem to give preference to the former over the latter if there was any overlapping.

I readily concede that the agreement here has some of the characteristics of a guaranty. In McCormick Harvesting Mach. Co. v. Millett, 29 S.W. 80, the Dallas Court of Civil Appeals in considering an agreement to pay a note if not paid by the maker within sixty days after maturity the Court held that this form of guaranty “absolutely fixed” the liability of the guarantor to pay upon the failure of the maker of the note to pay as stipulated.

In Arnett v. Simpson, Tex.Civ.App., 235 S.W. 982, 985, writ dismissed, the Court in discussing the law of guaranty quoted approvingly a textbook statement that “A guarantor insures the solvency of the debt- or.”

In the agreement here, liability of International to pay an accrued claim under a fire insurance policy is not contingent upon insolvency of Fort Worth Lloyds. It is contingent only on the passage of time (30 days), and since time always passes, the liability to pay is absolute. This is the same and the only liability which an insurer has, except for the thirty day delay which is of no practical significance.

I would affirm the judgment of the Trial Court.

      . The assets of International Service were shown to be about $10,000,000.


author: ARCHER, Chief Justice.

text:
    GULF, COLORADO & SANTA FE RAILWAY COMPANY, Appellant, v. BALLINGER COOPERATIVE GIN COMPANY, Inc., Appellee.
    No. 10890.
    Court of Civil Appeals of Texas. Austin.
    Nov. 8, 1961.
    Rehearing Denied Dec. 6, 1961.

      Hudson, Keltner, Jordan, Smith & Cunningham, Fort Worth, for appellant.
    Upton, Upton, Baker & Griffis; Richard W. Davis, San Angelo, Paul Petty, Bal-linger, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the District Court denying appellant recovery for negligent destruction of its bridge in Ballinger, Texas, based on a jury verdict finding in answers to Special Issues Nos. 38, 39 and 40 that appellant was guilty of contributory negligence in certain particulars.

The jury in answers to primary issues found that appellee was negligent in certain particulars, but in answers to the issues above noted found appellant guilty of negligence in permitting “weeds and trash” to accumulate on the “bridge premises,” which was a proximate cause of the fire.

The appeal is founded on seven points assigned as error and are that the Court erred in submitting Special Issues Nos. 38, 39 and 40, and that the answers of the jury to these issues are not supported by any evidence, or alternatively are not supported by sufficient evidence of probative force, or in the further alternative, such answers are against the overwhelming weight and preponderance of the evidence and that as a matter of law the unsupported issue of fact to the effect that appellant failed to keep the “bridge premises” free of “weeds and trash” found by the jury could not be a proximate cause of the burning of the bridge.

The jury found that appellee was guilty of negligence in 23 of the 25 issues of primary negligence and appellant in two fact issues of negligent, and of the 15 issues of contributory negligence only issues Nos. 38, 39 and 40 were found against appellant, which inquired whether the railway company failed to keep the “bridge premises” free of “weeds and trash” and if so whether this was negligence and if negligence, whether it was a proximate cause of the fire to the bridge.

The issues objected to and the submission of which is the basis of this appeal, read:

“Do you find from a preponderance of the evidence that immediately prior to the fire on Plaintiff’s bridge the railroad failed to keep the bridge premises free of weeds and trash? Answer Yes or No.
“Answer: Yes.
“If you have answered the foregoing issue ‘yes’ then you will answer the following issue, otherwise you will not answer same:
“39. Do you find from a preponderance of the evidence that the failure, if any, of the railroad to keep the bridge premises free of weeds and trash immediately prior to the bridge fire on November 25, 1959, was negligence? Answer Yes or No.
“Answer: Yes
“If you have answered the foregoing issue ‘yes’ then you will answer the following issue otherwise you will not answer same:
“40. Do you find from a preponderance of the evidence that the failure, if any, of the railroad to keep the bridge premises free of weeds and trash immediately prior to the bridge fire on November 25, 1959, was a proximate cause of said fire? Answer Yes or No.
“Answer: Yes.”

Appellant contends that the above issues were too broad and general and failed to limit the inquiry of the jury with regard to the weeds and trash, and further that there was no evidence or insufficient evidence to support the submission of the three issues or to support an affirmative answer to such issues.

Appellant in its petition alleged that it owned, operated and maintained a railroad track through Ballinger and also owned and maintained a railroad bridge in Bal-linger, Texas, located in fairly close proximity to Ballinger Cooperative Gin Company, and alleged the location and size of the piles of hulls or burrs and of the operation of a lint burner where refuse from the gin was burned; that the pile of hulls or burrs was set on fire and that a high wind was blowing and many sparks or embers were blown onto the wooden bridge. Appellant further alleged negligence in certain particulars by the Gin Company and that such was a proximate cause of the fire which destroyed the bridge.

The Gin Company answered by general denial and that the fire which damaged the bridge was from campfires under the bridge or by sparks from plaintiff’s trains, constituting a new and independent cause of the fire to the bridge; further answer was acts of negligence by the authorized agents and employees of plaintiff, singly or in concurrence and were a proximate cause of the fire, setting out a number of acts, the last of which was that plaintiff “failed to keep the bridge premises free of weeds, trash and debris.”

We believe that Issues Nos. 38, 39 and 40 fairly submitted the fact issues to the jury and the words “bridge premises” were subject to the usual interpretation and were understood to be the bridge and right of way over which the bridge was constructed and were in substance the same as the allegations made by appellant.

We do not believe that there is any evidence to support the jury finding that the failure to keep the bridge premises free of weeds and trash was a proximate cause of the burning of the bridge.

A fire was started in the pile of cotton burrs left in the open by the Gin Company and was found by the jury to be negligence and a proximate cause of the fire which started on the bridge. The jury also found that the agent for the Gin Company left the burr pile and went elsewhere immediately prior to the time the fire in the burr pile was discovered, and that this was negligence and a proximate cause of the fire on the bridge. The Gin Company through its agents, servants and employees was guilty of other acts of negligence which were a proximate cause of the fire. There is no question as to the suificiency of the evidence to support the jury’s findings in connection with these issues.

The Railway Company was acquitted of any acts of negligence in connection with the origin of the fire or of any other acts of negligence except as the jury found in answer to Special Issues 38, 39 and 40, and as we have stated there was no evidence to support the jury’s finding that any acts of the Railway Company was a proximate cause of the fire.

Mr. Collier, Chief Engineer of the railroad in the area in which Runnels County is situated, testified that his dominion extended to the bridge and the equipment and trackage in Runnels County. Mr. Collier further testified that in order to rebuild and replace the bridge, everything necessary to build a bridge was used and that the area was completely burned clean.

D. M. Barnhardt, a witness for appellant, on cross-examination, testified that there was a considerable amount of brush and a lot of dead weeds near the approach to the bridge. He further testified that:

“Q. Let me ask you this, * * * as a matter of fact, between this burr pile and down to the bridge there was, and .remained even after the fire was extinguished, quite a little area of dead Johnson grass, weeds, and things of that kind, that never did catch fire; that’s right, isn’t it? A. Yes, sir.”

Mr. Selby, a witness called by plaintiff, testified that he noticed an unusual amount of debris or growth and tumbleweeds •around the bridge and on cross-examination testified that the Johnson grass and weeds were very dry and susceptible to sparks, and further:

“Q. As a matter of fact, Mr. Selby, isn’t this a fact, that even after the fire was well under way and burning there was a stretch of area in between the burr pile and the bridge itself, of Johnson grass, weeds, first one thing .and another like that, readily ignitable substance, that never did catch fire? A. That’s right.”

Mr. Romfeld, called by plaintiff, testified in reply to a question by defendant’s attorney that there was, at the scene of the fire, a good deal of dead grass and weeds down in the area of the bridge.

Jack Fry, the manager of appellee gin •company, was asked the following question:

“Q. About 150 yards, and between the burr pile and the bridge itself was there, and did there remain after this fire was all over, a broad area there where there was dry vegetation, Johnson grass that had been killed by the frost, brush, things of that kind?”

The answer by Fry was “Yes, sir.”

No one testified that the lower part of the bridge or the bridge pilings was on fire, when they arrived at the scene, — in most cases, sometime after the fire actually started. Mr. W. N. Selby, the fire chief, testified that when he arrived at the scene the bridge was practically all on fire, but “not all the way to the bottom,” but that it was burning pretty well from midway up. He further testified as follows:

“It would seem likely it started at the top and which was burning down; I mean, it wasn’t all the way to the ground, but it was when we got there. It was burning, I would say from maybe halfway up, or maybe a third of the way up at the top.”

Mr. J. T. Clemons, Track Supervisor for appellant, testifying, the following questions were asked and answers elicited:

“Q. At that time what part or parts of the bridge were burning? A. As far as I can see for fire and smoke it was burning all the way across on top, the piling, all of it.
Q. Was it burning underneath or on the pilings yet at that time? A. Piling, the piling was burning; the bridge ties; the timber that was on it looked like was afire.
Q. Did most of the fire seem to be on top on the decking? A. Yes.
Q. That was at three o’clock? A. Yes.”

We are bound to view the evidence in the light most favorable to the verdict, and as well consider only the facts and circumstances favorable to the issues and to disregard all contrary and conflicting evidence thereon and indulge every legitimate reference tending to uphold the verdict.

In determining a “no evidence” point the accepted test, viewed under the rules stated above, is that if reasonable minds could differ as to the conclusion reached, the jury finding must stand. Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 82, 37 S.W. 319; Rule 451, Texas Rules of Civil Procedure.

4 Tex.Jur.2d Sec. 838, p. 395, states the governing rule to be observed when considering sufficient evidence.

Special Issue No. 40 inquiring whether appellant’s failure to keep the bridge premises free of weeds and trash was a proximate cause of said fire, was a question of -fact to be determined by the jury under the evidence as a whole and in the light of the entire record but there must be evidence to support such an issue and we are unable to find any such evidence in the record. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

There does not appear to be any testimony as to how and where the fire actually commenced on plaintiff’s premises and circumstantial evidence was relied on.

Mr. Selby testified that he had no idea what actually caused the fire or where the fire came from or originated. Another witness testified that he did not see sparks or embers blowing from the burr pile.

Appellee’s counterpoint No. 2 is to the effect that appellant has waived any possible error in the use of the term “bridge premises” in Issues Nos. 38, 39 and 40, because appellant did not submit or .request any definition or explanatory instructions.

The objection to the submission of the three issues was that they were too broad and general and did not limit or restrict the jury to a consideration of weeds and trash only on property owned by appellant.

It was incumbent on plaintiff to request and submit a definition, or explanatory instruction in writing and tendered in substantially correct wording, and failing to do so cannot be heard to complain on appeal. Rule 279, T.R.C.P.; Malone-Hogan Hospital Clinic Foundation, Inc. v. City of Big Springs et al., Tex.Civ.App., 288 S.W.2d 550, error ref., N.R.E.

The judgment of the Trial Court is reversed and judgment rendered for appellant.

Reversed and rendered.

      . “No evidence” and “insufficient evidence” Points of Error by Justice Robert W. Calvert, Texas Law Review, Vol. 38, No. 4, p. 361.


author: WILSON, Justice.

text:
    KIRBY LUMBER CORPORATION, Appellant, v. HARDIN INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 3910.
    Court of Civil Appeals of Texas. Waco.
    Nov. 2, 1961.
    Rehearing Denied Nov. 22, 1961.

      Fountain, Cox & Gaines, Houston, Strong, Pipkin, Strong & Nelson, Beaumont, for appellant.
    E. G. Aycock, Fort Worth, for appellee.
   WILSON, Justice.

The principal question in this tax suit is whether timber grown on appellant’s land is exempt from ad valorem taxation, as it contends, under Art. 8, Sec. 19, Texas Constitution, Vernon’s Ann.St. and Art. 7174, Vernon’s Ann.Tex.Stat.

A jury finding to the effect that timber, as grown by appellant in appellee district, is not a “crop” is attacked for lack of evidential support, but as appellant concedes, the facts being settled, whether its timber is exempt is a question of law; and points relating to this finding are therefore immaterial.

The record establishes that appellant engaged in a “sustained yield” program in the growth of timber on its lands which consisted of application of scientific forestry practices to an established stand of timber with the aim of “constantly regenerating the forest by nature rather than having to plant it.” These conservation practices include a uniform cycle of thinning, removing undesirable species and selective cutting and girdling of trees; control and prevention of fire, disease and insects; and permitting the residual trees to re-fertilize and re-seed by natural processes. These practices are generally referred to as “tree farming”, and appellant’s timber lands are certified by a forest industry committee as “tree farms” by virtue of having conformed to minimum practice standards.

Art. 7174 provides that “Each separate parcel of real property shall be valued at its true and full value in money, excluding the value of crops growing or ungathered thereon.” Appellant says its pine and hardwood trees from which lumber and pulpwood are produced are “crops” under this statute, and are exempt from ad valorem taxation. Art. 7174 is derived from Acts 1876, 15th Leg., ch. 157, p. 275, sec. 24 (not from Acts 1905 as the annotated statutes suggest). At that time Art. 8, sec. 2 of the Constitution provided that all laws exempting property from taxation other than property enumerated therein “shall be null and void.”

In its present form the crop exclusion provision came to us from the statutory revision of 1879 (Art. 4692) with the words “or ungathered” inserted. In the same year the 1879 statutory recodification became effective, a new section was added to the 1876 Constitution: “Sec. 19. Farm products in the hands of the producer” were exempt from all taxation. It thus appears the present statutory provision and the Constitutional exemption were practically contemporaneous in origin. The statute, of course, may not enlarge or restrict the organic law. Empire Gas & Fuel Co. v. State, 121 Tex. 138, 47 S.W.2d 265, 274.

Appellant urges that “tree farming” is a new concept, developed over recent years, and hence timber grown in its forests or “tree farms” are technically “crops”. There is respectable authority from which it could be said that trees as grown on the land involved are not “crops” under the statute. Cottle v. Spitzer, 65 Cal. 456, 4 P. 435, 52 Am.Rep. 305; Globe Lbr. Co. v. Lockett, 106 La. 414, 30 So. 902; Miethke v. Pierce County, 173 Wash. 381, 23 P.2d 405; Bernard v. Board etc., 216 Miss. 387, 62 So.2d 576, 581; 10 Words and Phrases, Crop, 547; 15 Am.Jur., p. 194, sec. 2; 25 C.J.S. Crops §§1-5, pps. 1-6; 98 C.J.S. Woods and Forests § 1, p. 687; 2 Cooley, Taxation (4th ed.) Sec. 725, p. 1529; 2 Oxford Eng. Dictionary (1937) 426. It may be doubtful that the term “ungather-ed,” used in the statute, could reasonably be applied to uncut timber. We do not consider it necessary, however, to decide this narrow problem of statutory construction, since the basic question is constitutional.

Appellant says its trees are “farm products”. Under Art. 8, Sec. 19, exemptions from taxation are never favored, and “in the construction or interpretation of a law extending exemption from taxation to any citizen or class of property all doubts are resolved against the exemption.” City of Longview v. Markham-McRee Hosp., 137 Tex. 178, 152 S.W.2d 1112, 1113; Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130, 131, 79 A.L.R. 983; Hedgecroft v. City of Houston, 150 Tex. 654, 244 S.W.2d 632, 636.

Generally, a statute is given “the meaning which it had at the time of its enactment.” Manry v. Robison, 122 Tex. 213, 56 S.W.2d 438, 447; Big Lake Oil Co. v. Reagan County, Tex.Civ.App., 217 S.W.2d 171, 173, writ refused. Constitutional provisions are said to “mean what they meant when they were * * * adopted, and their meaning is not different at any subsequent time. Constitutional provisions must be construed in the light of conditions existing at the time of adoption, and it does not lie within the power of the Legislature to change their meaning, or to enact laws in conflict therewith.” Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022, 1024; Travelers’ Ins. Co. v. Marshall, 124 Tex. 45, 76 S'.W.2d 1007, 1012, 96 A.L.R. 802; Cramer v. Sheppard, 140 Tex. 271, 167 S.W: 2d 147, 152.

In our opinion appellant’s timber here involved is not included in the constitutional exemption of “farm products”. We feel certain it was not within the com templation of the framers of the provisions and the people who adopted it. In 1879 Texas was in the throes of an economic depression, and apparently intended the exemption to be temporary “until otherwise directed by a two-thirds vote” of the Legislature. See Interpretive Commentary, 2 Vernon’s Ann.Tex.Const., 570. Texas citizens of that day, not far removed from frontier-and pioneer s.tatus, considered timber and forests as areas to be cleared before the pursuits of husbandry could be engaged in. It would have been incredible, then, to call trees “farm products”. We think they are not such now, within the meaning of the Constitution.

In Collins v. Mills, (1944) 198 Ga. 18, 30 S.E.2d 866, 870, the Georgia Supreme Court said of appellant’s contention, “In common usage, do we not ordinarily regard farming and farm products as matters pertaining to the soil and to fields, and not to forests or timbered lands? Inquire of any farmer as to the quantity of land that he is cultivating or ‘farming,’ and he will probably answer solely in terms of ‘cleared land’. While in recent years there may have developed a tendency among owners of land to plant and cultivate young saplings and to care for them as they grow, somewhat after the manner of agriculture, for the purpose of producing trees that may finally be suitable for timber, yet is this not an exception, and such a rare exception that it would not ordinarily be suggested to mind by the term farming ? ”

Just as appellant’s timber is not converted into a farm product by nomenclature, so also is it not so transformed, in our opinion, by commendable methods of conservation, reforestation and increasing production.

Additional points have been considered and are overruled. Affirmed.

      . It is to be observed that Art. 2613, See. 12, Vernon’s Ann.Tex.Stat., concerns “pine forest lands” sold in proceedings to foreclose tax liens on real estate. It defines “forest lands” as lands which may reasonably be expected to produce “by reason of natural, or other methods of reforestation” another growth of pine timber of any material value upon them. It may be further observed that Art. 2613a-8 refers to production of “forest products”.


text:
    Pearl BACON et vir, Appellants, v. Stacy Mae BACON et al., Appellees.
    No. 3932.
    Court of Civil Appeals of Texas. Waco.
    Nov. 2, 1961.
    Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellants.
    Musslewhite & Musslewhite, Lufkin, for appellees.
   WILSON, Justice.

The paternal grandparents of children whose custody is here involved appeal from order overruling their plea of privilege to the mother’s 'cross-action seeking custody.

The mother and father of these children were divorced. The divorce decree awarded custody to the father, giving the mother visitation rights. The father thereafter died. The grandparents instituted an action in Houston County, alleging the grandmother was the lawful guardian of the persons and estates of the minors; that plaintiffs had control and custody of them since infancy, and support and rearing of the children had been their sole responsibility. They averred the children were “spirited away” from their home by the mother, “remaining in hiding until discovered by an officer” until returned to them under writ of habeas corpus; and that the the mother and other defendants were again threatening to deprive them of custody and possession by removing the children to another county. They asked that defendants be restrained from such action until right of custody could be determined in an independent suit. A temporary restraining order was issued and the application for temporary injunction was set for hearing.

The mother and other defendants thereupon filed pleas of privilege to be sued in Angelina County, which were sustained, the order becoming final. When the cause reached the latter county on transfer, the mother answered and filed a cross-action alleging the children had been theretofore unlawfully removed from her lawful custody in Angelina County, without process, by direction of the grandparents, who had illegal possession of the children. She asked a decree giving her custody and possession of the children and prayed for writ of habeas corpus. The writ was immediately issued.

Shortly after filing of the mother’s cross-action and issuance of the writ, the grandparents took a nonsuit in their own action, and filed a plea of privilege to the mother’s cross-action, seeking transfer to Houston County, where they reside. From the order overruling this plea the grandparents appeal. Temporary custody of the children, pending hearing on the merits, was given to the grandparents.

The grandparents contend that when they nonsuited, the cross-action was left standing as an independent action; and transfer to the county of their residence was mandatory under their plea of privilege because their dismissed action did not involve the issue of custody presented by the mother’s cross-action.

The original action of the grandparents in Houston County invoked action of the court to deal with the persons and personal status of the children. In seeking to obtain or retain physical possession of the children the grandparents “automatically invoked the power of the court to adjudicate custody,” and their action “was, therefore, a suit involving custody as well as possession.” This proceeding, although “intended perhaps to determine possession only, was one involving custody also.” Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79, 82. As in the cited case, they recognized the mother was denying their “right to the possession or continued custody” of the children, “and were asserting an adverse right thereto.”

When the grandparents’ case reached Angelina County on transfer, its nature, status and character as such continued, and as said by the Supreme Court in Knollhoff, the mother could appear and contest their “right to possession and continued custody of the child, with the ancillary right to file whatever pleadings” she deemed appropriate, 256 S.W.2d 82, 83. It remained a suit involving custody when the mother’s cross-action seeking the writ of habeas corpus and praying for custody was filed. Since appellants did not appeal from the order transferring their suit to Angelina County, it was pending there, for our purposes, in the same status as if they had initiated it in that county. The cross-action asked for affirmative relief as to subj ect matter directly connected with that of the original action. Venue of the cross-action was then fixed in Angelina County, where appellants’ suit was pending, and they could not destroy venue by dismissal of their suit. Zachry v. Robertson, 141 Tex. 307, 214 S.W.2d 949, 952, Syl. 3; Bailey v. Federal Supply Co., Tex.Com. App., 287 S.W. 1090, 1091; De La Vega v. League, 64 Tex. 205, 215; Fairbanks v. McAllen, Tex.Civ.App,, 170 S.W.2d 581, 582, writ ref.; Connell v. Spires, Tex.Civ.App., 264 S.W.2d 458, 459; Rules 96, 164, Texas Rules of Civil Procedure. We imply no-opinion as to propriety of appellants’ action. See Prock v. Morgan, Tex.Civ.App., 291 S.W.2d 489; Dillon v. Ewald, Tex.Civ.App., 308 S.W.2d 910, writ ref. n. r. e.

Affirmed.


author: TIREY, Justice.

text:
    BITUMINOUS CASUALTY CORPORATION, Appellant, v. Jewell SANDERS, Appellee.
    No. 3925.
    Court of Civil Appeals of Texas. Waco.
    Oct. 26, 1961.
    The Kempers, Houston, for appellant.
    Jim S. Phelps, Houston, for appellee.
   TIREY, Justice.

This is a workmen’s compensation case. The verdict was favorable to the employee and found that his injuries were permanent, and further found that there was not another employee of the same class as the plaintiff working substantially the whole of the year immediately preceding the 20th day of November 1958 in the same or similar employment, in the same or neighboring place. It fixed his average weekly wage at $50, and found that he was entitled to a lump sum settlement. The Court found, under the verdict of the jury, that plaintiff is entitled to compensation at the rate of $30 per week for a period of 401 weeks, less the amount of compensation previously paid, same being 12 weeks at $18 per week; that as of the 29th day of September 1960, there was 97 weeks of compensation that was past due -upon which plaintiff was entitled to 4% interest per annum, and that there were 304 weeks of further compensation due upon which defendant was entitled to 4% per annum discount, and further found that plaintiff was entitled to recover on the 29th day of September 1960, the sum of $10,-945.89, and fixed the attorney’s fees at $2,-761.47, being one-fourth of the sum, and decreed accordingly. Defendant seasonably filed its amended motion for new trial, and it being overruled perfected its appeal to the Beaumont Court, and the cause is here on transfer. It was stipulated that plaintiff had not worked in the employment in which he was working at the time of his accident for the same or other employer for substantially the whole of the year immediately preceding November 20, 1958.

Appellant assails the judgment on five points. They are substantially to the effect that the Court erred: (1) In rendering judgment for plaintiff based upon the jury’s answer to the effect that the plaintiff’s injuries were permanent, because there is no evidence of probative force in the record to sustain such answer; (2) Because the answer of the jury that his injuries were permanent was against the greater weight and overwhelming preponderance of the evidence; (3) Because the jury failed to find that plaintiff suffered only partial incapacity, because there was no evidence of probative force that justifies a finding in excess of some partial incapacity to the plaintiff; (4) And the jury’s failure to find partial incapacity of the plaintiff is so against the greater weight and overwhelming preponderance of the evidence as to be clearly wrong; and

“(5) * * * in refusing to grant this appellant a new trial because the foreman was guilty of material misconduct in that while the Jury was considering its answer to Special Issue No. 13, inquiring what sum of money would be fair to both parties herein as the average weekly wage of the plaintiff, he told the others that at $40.00 per week the plaintiff would only get about $20.00 thereof since his lawyer was entitled to his fee therefrom, so that they improperly received during their retirement highly material testimony other than from the witness stand in open court.”

A statement is necessary. Plaintiff brought his suit to recover benefits for accidental injuries to his back, shoulders and neck sustained on November 20, 1958, while in the course of his employment. Evidence was tendered to the effect that plaintiff was 42 years of age at the time of the trial; that he had worked for about 6 months prior to the date of the accident for John Bass as a wood-hauler; that on November 20, 1958, he sustained a cut lip and began to hurt in his neck and lower back while hauling pulpwood in San Jacinto County for Mr. Durham; that plaintiff was taken to the hospital by ambulance where he saw Dr. Gardner, who treated him, and he remained there for three days; that after his release he saw Dr. Gardner at least three times for further treatment over the next three weeks; that he was sent to Dr. Markewich in Houston by his attorney, and that this doctor saw plaintiff a total of five times from December 1958 to mid September 1960. Plaintiff also saw Dr. Price for the defendant, and Dr. Martin, both of Plouston; that plaintiff worked for one Von Pitman for better than nine months after March 1959, and was paid $2.50 per day, working two, three and four days per week; that he thereafter became a block-setter for Jesse Brown near Shepherd, Texas, riding a carriage some six to eight months; that he quit this job because his neck and back pained him so much one month prior to the trial; that Brown paid him $9 per day; that about three weeks prior to the trial he then again worked as a hauler for Richard Williams for several days; that he didn’t know before the accident that he had arthritis in his spine, but had been so informed by the doctors after the injury. Plaintiff received no cuts requiring stitches, nor any broken bones; that he did not ask Brown to send him to a doctor, but he did take off several times to see Dr. Markewich; that he has not been given any braces, crutches or any other aid by any of the doctors.

Dr. Markewich testified substantially to the effect that the time he first saw Jewell Sanders, was on the 3rd day of December 1958; that he was 41 years old, colored male, and gave a history to the effect that plaintiff had been involved and injured in an accident on the 20th day of November 1959 while working for a pulpwood contractor, John Bass; that he stated that the truck he was in was involved in an accident; that the truck ran into a ditch, and the wood on the truck piled up on him and injured his chest, neck and back; that he was hospitalized in Livingston, Texas, and from that time on he had been under treatment by physicians in the area and had not been doing any work, and that he had never had such a similar injury before; that when he saw him on December 3, 1959, he was complaining of pain in his chest and in his hack and neck, and pain in his lower back; he stated that the pain kept him from resting at night and he could not do very much bending, or lifting, or straining because of the pain; that a physical examination of the employee revealed a tenderness over the back of the cervical spine, which was the neck vertebrae, with some slight amount of spasm of the muscles on each side bf the cervical vertebrae; that motions of the neck were very painful on attempted forward motion or right and left motion or backward extension of the neck, and there was some limitation of the extension to the back; that examination of his chest revealed just a generalized tenderness over the upper part of the chest well, but that he could see no bruises or contusions, or any cuts or lacerations; that the lungs on listening with the stethoscope were normal; that further examination revealed tenderness in the lumbosacral area of the back which is at the lower end of the lumbar spine at the level of about the hip joint where the sacrum of the spine joins the lumbar spine, just about hip level; that there was tenderness there and there was moderate muscle spasm in that area, that is on the muscle group or the bunch of muscles on each side of the spine, on both sides; that motion of the back was painful at this time and was limited about 30 to 40 per cent. That means he had about 60 or 70 per cent of what is considered normal motion of the back; that the rest of the physical examination was essentially negative; that in testing for various nerve injury or neurological findings, any numbness or sensory changes and reflexes, all were negative; that he sent him to Dr. Tyner for an X-ray of his back. The X-rays were admitted in evidence, and Dr. Markewich testified to the effect that he could read the X-rays, and he pointed out in detail as to what the X-rays showed as to plaintiff’s neck and back; that after his physical examination, and examination of the X-rays, his diagnosis was : “A cervical strain which is a neck strain. There was tenderness over the chest which I said here, No. 2 diagnosis, probably a residual bruise of the chest manifested by tenderness and pressure over the front of the chest. There was a lumbo-sacral strain, that means in the lower back that I described before, and the X-ray findings of this arthritic condition and the congenital condition that I demonstrated, that failure.of fusion at the fifth lumbar vertebra.” Dr. Markewich saw him again on the 3rd of September 1960, which was some 12 days before the trial, and he testified: “Still unable to do any work. He had severe complaints in regard to his neck. I couldn’t demonstrate too much — I could demonstrate pain on motion, but no limitation, and that’s the same thing applied to the lower back, too, but he’s unable to do any work from the history, and he says if he tries to, he can’t last very long, his back kicks up, some days better, some days worse, but that at this time mostly complaints in regard to his neck and his back.” He further testified:

“Q. That much arthritis couldn’t accumulate between November the 20th when the accident occurred and December whatever it was, December the 3rd * * *? A. No. That amount of arthritis, especially those long spurs, —Well, the congenital condition has been there since he was born, but the arthritic changes, especially the spur formation, if I had to estimate a time, how long it took them to form, I would say it was a minimum of somewhere around five years or even maybe a little bit more or a little bit less, but it takes some time for those things to keep building up.
* * * * * *
“Q. Now, Doctor, will you explain to us how a person with arthritis in his back and if he has a lick, or a blow, or what you doctors call ‘trauma’ or arising out of an accident, how that accelerates and causes a back which has arthritis in it which has been not symptomatic to become symptomatic? A. Well, I can-’t explain the exact physiology of how it happened, but it does occur that a man who doesn’t have any trouble with the back even though he’s got arthritic changes in X-ray will go along and have no trouble, and then he gets injured in some way and his arthritic changes or back begins to both him, or aggravates it, or sets it off where he starts progressing faster than the normal rate that it would progress as he gets older.
“Q. Now, Doctor, once this arthritic .condition in a man’s back is triggered off or incited, as you doctors sometimes call it, what does that mean ■ when you trigger it off or when you incite this arthritic condition and it becomes symptomatic? A. Well, it’s an aggravation of a previously existing condition which was quiet, quiescent.
“Q. And can that condition, that aggravation and excitement or acceleration of this arthritic condition that a person has in his back, can that be caused by such a type of accident that Jewell Sanders was in? A. It can.
“Q. Now, Doctor, if Jewell Sanders had worked hard all of his life and had worked practically all of his life and hardly ever out of work, and had never had any back trouble at all prior to an accident that occurred on November the 20, 1958, and assuming it to be the truth and fact that on that occasion a truck going some thirty or forty miles an hour with 330 feet of wood, pulpwood, on the back of the truck went down into about a four-foot ditch and all this lumber and everything came over on them and pushed them down into where they were wedged down into the truck, took them some twenty or thirty minutes to get the doors open so they could even get them out of the truck, and assuming, since that time, Doctor, that he has been having continuous trouble with his back and neck, what in your opinion, Doctor, would be causing the trouble that he’s having with his back and his neck? A. Well, the accident as stated on November the 20th, at least, that started off the trouble— * * * —or precipitated it, I would say.
⅝ * ‡ * * *
“A. Precipitated. Well, two things. The accident caused the back trouble with the spasm that he had, and the aggravation of the arthritis is continuing the trouble. The original probably muscle or soft tissue injury probably had gone away, but the arthritic condition lying underneath is not letting it clear up.
“Q. * * * when a man gets this arthritic condition in his back, does he get well, or is that a permanent thing * * * ? A. No. The condition in his back, the arthritic condition, is permanent.
“Q. This arthritis that he has got in his back is not going to disappear, is it, Doctor? A. No. Chances are it will probably progress. It usually does.
“Q. Well, in all medical probabilities, it will progress and get worse? A. That’s right.
“Q. Now, * * * after looking at the X-rays and if Jewell Sanders came to your office for a pre-employment medical examination and had the complaints that he had at the time you saw him last, on the 3rd of September, 1960, would you pass him for a pre-employment medical examination, Doctor, to get out and do the work, the usual work that an ordinary worker has to do? A. No, not the ordinary work, or all work, or heavy work. He probably could do some lighter type of work.
“Q. * * * has Jewell Sanders at this time reached the maximum recovery that he has as far as this accident and this condition is concerned?
A. Oh, after close to two years, I think so.”

A summary of appellee’s work record before the accident, shows: (1) Southern Pacific Railroad, section hand, 8½ years; (2) Gulledge Construction Company, construction hand 1 ½ years; (3) Ernest Johnson, log hauler, 1 ½ years; (4) Warren Griggs, bricklayer, 3 or 4 weeks; (5) Jesse Brown, log tripper, 2 or 3 months; (6) Frank Green, trimmer in front of power saw, 3 months; (7) J. N. Dunham and Son, Inc., and John Bass, log hauler, 10 months.

We think the record shows without dispute that prior to the accident plaintiff was a hard-working man, with a good work record.

Evidence was tendered to the effect that since the accident on November 20, 1958,-until the trial during the third week of September 1960, some 20 months had elapsed between the accident and the trial of the case on its merits; that during this time plaintiff worked for Jesse Brown from February 6, 1960, to May 28, 1960; that during the time he worked for Mr. Brown he did not work full time, and that he laid off some 3 times because of his injury. Mr. Brown testified that there was only one week that appellee worked as much as 3 days in any one week; that during the 17 weeks plaintiff worked for Mr. Brown he made in all $184.02, while his wage was $1.13 per hour, or $9 per day. He further testified that during the time he worked for Mr. Brown he had to get off some 3 or 4 times on account of his neck hurting him; that he told Mr. Brown he had to go home, and one day he quit at 2 o’clock and went to bed. He further testified that sometime while he was working that the pain was sometimes bad, and that he had to quit the job with Mr. Brown because his back and neck hurt him so bad he had to quit. Testimony was tendered to the effect that plaintiff had several different jobs after he was hurt in the 20 month period between the date of the injury and the trial, but that he was unable to stay on the job and voluntarily quit because he said that he had so much pain that he could not do the job and that he did go home and go to bed. We think the record reveals that the plaintiff did very little work from the time of his injury to the date of the trial, and that the jury was authorized to believe and find from all the evidence and surrounding circumstances that the plaintiff was not working because he was not able to work, and could not do it because of the pain he was suffering.

Dr. Price, an orthopedic surgeon, testified to the effect that plaintiff had a lot of arthritis in his neck; that the lower part of his neck showed considerable arthritic changes; that there was a flattening of the curve in his neck; that this degenerative change lead to the muscle spasm, and that the muscle spasm being the thing that actually produced the flattening; that he found “limitation of motion, yes, sir, due to the motion that was cut down in these joints”; that if the plaintiff had been sent to him for pre-employment medical examination, and that if he had an X-ray of him and saw this arthritis in his neck and in his back, and that if the plaintiff told him he was having pain on bending in his neck and he had no muscle spasm at all in his back, “I would not pass him.”

“Q. * * * he did tell you he was having pain when he was in your office, didn’t he? A. That’s true.”

Dr. Martin, an orthopedic surgeon, testified to the effect that he had had the employee X-rayed, and agreed to a finding that showed:

“Examination of the cervical spine, that means the neck, in multiple projections shows evidence of marked degenerative changes of the cervical spine manifested by straightening of the cervical curve and thinning of the C-4, C-5, and C-6 interspaces. There is marked thinning at C-6, particularly, and there is evidence of attempts at hypertrophic bridging between the various levels of C-4 through C-7. There is nothing to suggest evidence of fracture of subluxation. There appears to be some posterior lipping at the C-6 interspace on both sides. Nothing else of significance is seen.”

That the X-ray showed some arthritic changes, and that the pain that the employee complained of “could possibly have come from some aggravation of the arthritic changes in his neck.” That if the employee came to his office for a pre-em-ployment medical examination, and “If I were the examining physician, not knowing what went on with this man, I would not pass him. As a doctor who has had a chance to completely examine him and know of his history, I would pass him.” He further testified to the effect:

“A. * * * if a man comes in complaining of pain in his back or neck, even if the X-rays don’t show arthritis, they won’t hire him.
******
“A. They won’t pass him. ******
“A. * * * we couldn’t find any positive findings or physical findings to substantiate his complaints of his neck pain to try to tie it in with the X-ray findings. The physical findings were just not there. He has the subjective complaint, he has the complaint of his hurting there, but we could not find any evidence to substantiate his complaint.”

Over against the testimony of appellant’s doctors, we have the testimony of Dr. Markewich, and the plaintiff’s testimony, plus the testimony of those who worked with him, plus plaintiff’s work-record for a period of several years prior to the accident where he did various types of hard work from day to day, and so far as this record goes, without any complaint of pain in his back or neck or anywhere else. Since the accident we have his work-record, which is without dispute, and we have the testimony of the witnesses Brown, Williams and Von Pitman, and their testimony shows that the employee did work for a short time, and did complain of pain in his back and neck, and would quit and go home, and go to bed, and there is nothing in the testimony of these men for whom and with whom the employee worked to indicate that the employee was malingering. In addition to that testimony, we have the testimony of the employee himself, which sounds reasonable, and appears to be free from any suspicion that he was malingering. At least it so impressed the jury. It is true that if the jury had chosen to follow the testimony of appellant’s doctors it could have found that the employee had only partial disability, but with the work-record of the employee before them, both before and subsequent to the injury, the jury chose to follow the testimony of Dr. Markewich, and to finds that appellee had suffered total and permanent disability. Our Supreme Court in Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W. 2d 345, 346, re-announced the rule in Texas, which is: “Opinion testimony does not establish any material fact as a matter of law.” See also Consolidated Cas. Ins. Co., v. Baker, Tex.Civ.App., 297 S.W.2d 706, n. r. e., and cases there cited. We have carefully reviewed all the testimony shown by this record, and we cannot honestly say that the verdict of the jury is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King Estate, 150 Tex. 662, 244 S.W.2d 660. See also “No Evidence” and “Insufficient Evidence”, by Justice Calvert, (Reprint from April, 1960, 30 Tex. L.Rev. 803). Our view is that since the employee did sustain an injury in the course of his employment, that a consideration of all the evidence tendered under all the facts and circumstances surrounding the employee as shown by the record is that the preponderance of the evidence, under all the facts and circumstances here shown, supports the jury’s verdict. It follows that appellant’s Points 1, 2, 3 and 4 are overruled.

Appellant’s 5th Point is that the Court erred in failing to grant a new trial, “because the foreman was guilty of material misconduct in that while the Jury was considering its answer to Special Issue No. 13, inquiring what sum of money would be fair to both parties herein as the average weekly wage of the Plaintiff, he told the others that at $40. per week the Plaintiff would only get about $20 thereof since his lawyer was entitled to his fee therefrom, so that they improperly received during their retirement highly material testimony other than from the witness stand in open court.”

We have carefully considered the testimony tendered on the amended motion for new trial on which the foregoing point is based, and we are of the view that it fails to present any error. We are of the further view that a recitation of the testimony w'ould not be of any precedential value and for that reason we do not set it out or make any summary thereof. Suffice it to say that the testimony did not impress the trial judge, and we approve his action. We think we should say that the question tendered is not new, and this point is ruled by the pronouncement of our Supreme Court in King v. Federal Underwriters Exchange, 144 Tex. 531, 191 S. W.2d 855. See also opinion by Supreme Court in Texas Employers Ins. Ass’n v. Hatton, 152 Tex. 199, 255 S.W.2d 848. We are of the further view that appellant has not brought itself under the Rule of 327, Texas Rules of Civil Procedure. See also Rules 434 and 503, TRPC. Appellant earnestly insists that it has not had a fair trial in this cause.. We see no merit in this contention whatsoever. The trial court gave appellant a full opportunity to develop its defense, and we think appellant did a good job in so doing, because it tendered in evidence two outstanding orthopedic surgeons whose testimony was to the effect that the claimant’s injuries at most were only partial, but the jury did not see fit to accept their view, and after all, it had the duty to pass upon the facts. We are of the view that appellant has had a fair and impartial trial under the record before us, and each of its points of error here assigned is overruled.

Accordingly, the judgment of the Trial Court is Affirmed.