text:
    The HOME INSURANCE INDEMNITY COMPANY, Appellant, v. Clemente GUTIERREZ, Appellee.
    No. 230.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 17, 1966.
    Rehearing Denied Dec. 15, 1966.

      W. F. “Pete” Baker, of Allison, Clark & Baker, Corpus Christi, for appellant.
    Darrell B. Hester, of Hester & Toscano, Harlingen, for appellee.
   OPINION

NYE, Justice.

This is a suit by appellee to mature an award of the Industrial Accident Board, for 12 percent statutory penalty, and for attorneys fees under Article 8307, Sec. 5a, Vernon’s Ann.Civ.St. This Texas Workmen’s Compensation statute provides that when the Industrial Accident Board enters an award requiring the insurance carrier to make payments to an injured employee and the carrier thereafter fails or refuses, “without justifiable cause” to continue to make such payments promptly, the injured employee may bring suit to mature the award and to recover 12 percent penalty and attorneys fees.

Trial was had before the court without the aid of a jury. The court being of the opinion that the company failed or refused without justifiable cause to make payments promptly as they matured, rendered judgment in the amount of $1,302.-00, being the full amount of the matured award plus $156.24 representing 12 percent penalty and attorneys fees in the amount of $325.00. The company has perfected its appeal to this court.

From the findings of fact and the undisputed evidence, it appears that the plaintiff was injured while working. He instituted proceedings under the Workmen’s Compensation Act which resulted in an award of the Industrial Accident Board. Under this award plaintiff recovered compensation at the rate of $35.00 per week for nine weeks followed by 141 weeks at $7.00 per week. He filed his notice of intention to appeal from the board’s award. However, neither he nor the insurance company perfected an appeal with the result that the board’s award became final on June 7, 1965. On the date the award became final, the defendant company owed nine payments of $35.00 each and seventeen payments of $7.00 each for a total of $414.00. Whereupon the defendant, on the date the award became final delivered through the United States mail two instruments which the defendant designates as “claims drafts” representing the amount of the compensation due the plaintiff as of June 7, 1965.

It is these instruments that gave rise to the controversy. The plaintiff designates them as being “inter-office memorandums, unlike any instrument known to man or law.” The trial court concluded that the instruments were non-negotiable; that they were not checks as defined by Article 5947, Sec. 185, V.A.C.S., nor were they bills of exchange drawn upon a bank and payable upon demand; and that these two instruments did not constitute “payment”, as they were required to be accepted in New York at the home office of the defendant before payment could be made through a New York bank to plaintiff. Therefore, the court concluded the defendant failed to make said payments promptly as they matured, as that term is used in Article 8307, Sec. 5a, V.A.C.S.

The form of the two instruments in question read as follows:

One instrument had $119.00 written on it opposite the dollar sign and the other instrument was identical except that the first number in the upper left hand corner was 5470851 and had the amount of $315.00 opposite the dollar sign.

Two days after receipt of the instruments, plaintiff’s attorney wrote the defendant company on June 9, 1965, advising the company that they objected to the medium of payment since neither he nor plaintiff Gutierrez had agreed to accept a check, draft, or inter-office memorandum. They further declared that the entire claim was due. This letter was received in San Antonio by the defendant company on Friday, June 11. On Monday, June 14, plaintiff instituted suit against the defendant company contending that the company made no legal tender of the portion of the award due and, therefore, the entire claim is due by virtue by Article 8307, Sec. 5a, V.A. C.S.

In other findings of fact, the court found that the defendant had never made, nor tendered any payments to plaintiff prior to the receipt of the two instruments; that no custom or usage had been established between plaintiff and defendant since there was an absence of any prior dealings between them; and that after receiving the letter and the two instruments on June 11 the defendant made no further effort to make tender or payment of the matured portion of the award in any form to the plaintiff up to and including the time of trial.

The two instruments were prepared in the San Antonio office and were mailed to the plaintiff’s attorney in Harlingen, Texas. The court further found that the two subject instruments in the form prepared by the defendant would not be accepted by local banks when deposited; that before such payments of the amount shown on the instrument would be made, these instruments were required to first go to the home office of defendant in New York City, and there had to be accepted by the home office of the defendant. Thereafter, they were payable through The First National City Bank in New York City, New York.

The defendant after suit was filed, mailed the same kind of instruments each week by certified mail, return receipt requested, addressed to the plaintiff’s attorney at the post office box in Harlingen marked “deliver to addressee only”. The court further found that it would be necessary for plaintiff’s attorney to personally go to the Harlingen post office to get possession of them under postal regulations. No employee or agent of the attorney could get delivery of them. Plaintiff’s attorney did not go to the Harlingen post office personally and sign for these nineteen instruments, and they were subsequently returned to the defendant by the post office department as “unclaimed”. There was no agreement between plaintiff and defendant as to the mode or manner of payment. After the nineteen weekly instruments were returned to the defendant, the defendant company made no attempt to make pay •

ment in other form of the amounts due under the award and no part of the award has ever been actually received by the plaintiff.

The court concluded that in order for plaintiff to receive any payment upon the two instruments plaintiff and plaintiff’s attorney were required to present them for acceptance by virtue of Article 5942, Sec. 143(1) and (2), V.A.C.S.; that no drawee was named in the instruments or otherwise indicated therein with reasonable certainty as to satisfy the requirement of form for a negotiable instrument under Article 5932, Section 1(5). The court further concluded that the defendant, having received plaintiff’s objection to the medium of tender on June 11, 1965, was obligated to make tender of payment in legal tender of the United States. When the plaintiff filed suit defendant had still not made any other tender and such failure constituted a further failure “to make said payment promptly” as that phrase is used in Article 8307, Sec. 5a, V.A.C.S.

The court concluded as to the nineteen weekly installments that, there being no place specifically fixed by law as to where payment was to be made, the defendant was required to seek out the plaintiff and make payment; that defendant company failed to do so by requiring the plaintiff to have plaintiff’s attorney come in person to the Harlingen post office to get possession of the same; that the burden of proving a tender of payment was upon the defendant and the defendant failed to discharge this burden, both as to the original payments due on June 7, 1965 and as to the weekly payments due each week thereafter, to the date of trial.

The appellant assigns eight points of error to the effect that Article 8307, Sec. 5a, V.A.C.S., is not applicable under the facts and circumstances in this case; that if such statute is applicable the trial court erred in holding that the defendant company failed or refused to make payments promptly without justifiable cause; that there was no evidence or insufficient evidence that no custom or usage was established between the plaintiff and the defendant; that there was no evidence nor insufficient evidence that defendant company’s delivery of the claims draft did not constitute payment; that the trial court erred in holding that under the facts and circumstances the concept of payment under the statute in question required legal tender for the fact that there was no evidence to support such finding; and, that the trial court erred in considering facts or actions of the parties after suit was filed by the plaintiff.

The appellate courts of Texas have been called upon many times to construe the applicability of Sec. 5a of Article 8307, V.A.C.S. In the leading case of Minor v. London Guarantee & Accident Co., 280 S.W. 163, Tex.Com.App. (1926), opinion adopted by the Supreme Court, the court, in construing this section, stated that the provisions of this statute imposes the duty upon the insurance company to pay the award of the Industrial Accident Board according to the terms of the order entered by the board. The failure of the company to comply with this obligation — “to pay the amount due at once, and to make the weekly payments promptly as they matured — constituted prima facie a failure and refusal to abide by the order, and gave to the plaintiff * * * the right to institute suit upon the order of the board to establish same”, by maturing the entire claim, recovering the total amount of the award, together with 12 percent damages and reasonable attorney’s fees. “Mere neglect to pay either the amount due under the order of the board, or the weekly payments as they became due, does not show justifiable cause for defeating” * * * such claim.

It has been held by our Supreme Court that the term “at once”, means within a reasonable time. Maryland Casualty Co. v. Lewis, 151 Tex. 480, 252 S.W.2d 155 (1952). In the Lewis case, supra, the award became final at midnight. Suit was filed by the claimant at 9:30 a. m. the day the award became due, one hour and a half after the business day had started, and one half hour after the banks had opened for business. The court held that the suit was brought prematurely and denied the claimant the 12 percent penalty and attorney’s fees. This delay of 9½ hours was not an unreasonable length of time. It, therefore, becomes important for us to consider the facts of the case before us in the light of the Lewis case and, at the same time, consider the other cases in which our appellate courts have held that payments of awards made in 15 days, 4 days, 4 days, 5 days, and 17 days after the award became final, was not payment “at once”, or within a reasonable length of time. Minor v. London Guarantee & Accident Co., 280 S.W. 163, Tex.Com.App. (1926); Dixon v. United States Fidelity & Guaranty Co., 293 S.W. 291, Tex.Civ.App., error dismissed, (1926); Ocean Accident & Guarantee Corporation, Ltd. v. Manning, 5 Cir., 24 F.2d 202, (1928); Texas Employers’ Ins. Ass’n v. Harrington, Tex.Civ.App., 61 S.W.2d 167, (Tex.Civ.App., 1933); Travelers Insurance Company v. Hill, 163 Tex. 81, 351 S.W.2d 530 (1961). The cases and the statute are the only yardstick by which we measure the rights of the parties. The Act specifies no days of grace, unassociated with justifiable cause, in which the company may safely indulge procrastination in the payment of its obligation to an injured employee. Texas Employers’ Ins. Ass’n v. Harrington, supra.

First, we should consider the medium of attempted payment by the defendant company. The award became final on June 7, obligating the company to pay the amount of the award that had matured on that date. This was a debt owed by the company to the plaintiff. The Industrial Accident Board’s award made it a debt when neither party perfected an appeal from the board’s award. It, therefore, was not a claim on behalf of plaintiff but was a debt established by law. In absence of an agreement, a check, bill of exchange, or draft does not of itself discharge or constitute payment of a debt. 70 C.J.S. Payment § 23, p. 229. Nor does the presentation of such an instrument constitute a legal tender.

“A tender is an unconditional offer by a debtor or obligor to pay another, in current coin of the realm, a sum not less in amount than that due on a specified debt or obligation.” It consists of the actual production of the funds and offer to pay the debt involved. “The tenderer must relinquish possession of it for a sufficient time and under such circumstances as to enable the person to whom it is tendered, without special effort on his part, to acquire its possession.” Baucum v. Great American Insurance Co. of New York, 370 S.W.2d 863, Supreme Court, (1963). Although the delivery to or the acceptance by the creditor of the debtor’s check, is often treated for convenience as the passage of money, it is not payment. Pitts v. G. F. C. Corporation, Tex.Civ.App., 228 S.W.2d 261; Mashek v. Leonard, Tex.Civ.App., 186 S.W.2d 745, error dismissed; Jefferson Standard Life Ins. Co. v. Lindsey, Tex.Civ.App., 94 S.W.2d 549, error dismissed; Renchie v. John Hancock Mut. Life Ins. Co., Tex.Civ.App., 174 S.W.2d 87; Friends In Need Society of Bell County v. Peterson, Tex.Civ.App., 9 S.W.2d 1110; and Mary Couts Burnett Trust v. Samuels, Tex.Civ.App., 59 S.W.2d 358.

It is clear that the instrument in question was not a negotiable instrument and there was no agreement between the plaintiff and defendant company for the plaintiff to accept such instrument in discharge of the defendant’s obligation. There was an absolute absence of any prior dealings between the parties insofar as payment was concerned. There was sufficient evidence to support the trial court’s finding that there had not been any prior dealings between the parties which would justify plaintiff’s acceptance of the instrument in question.

The instruments required more of the plaintiff than that which is required by law. Although the defendant had the right to demand a receipt or release (Baucum v. Great American Insurance Co. of New York, supra), the company did not have the right to require the plaintiff to release the claims mentioned in the instrument, as a condition precedent to the forwarding of the instrument to New York City, for acceptance by the defendant company’s home' office there, before payment could be made through a New York bank, to be subsequently honored many days later in Har-lingen, Texas. This was not a valid or legal tender of money. The plaintiff was within his rights in refusing to accept the defendant’s instruments as they did not constitute payment under the facts and circumstances of this case.

The defendant company argues that there was a custom or usage in the insurance industry that payment of the debt could be accomplished by the delivery of this type of an instrument. This was the defendant’s position throughout, as no other tender by any other form was attempted by the defendant even after the suit was filed and other weekly debts accrued under the award. The trial court made no finding that such custom and usage as contended by defendant was recognized. The defendant company made no objections to the findings of fact of the trial court and made no request for further additional or amended findings under Rules 298 and 299, Texas Rules of Civil Procedure. The court did find that there was no custom or usage between plaintiff and defendant. Since there was evidence of probative force supporting this finding, we are without authority to disturb it. Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951).

Custom has been defined as a practice long used and received that may have acquired the force of law. 55 Am.Jur. 266, Usages and Customs ¶ 3. The courts have repeatedly declared that usage or custom, in order to be binding on a person, must be general, or at least so general and universal in character that knowledge of it may well be presumed. 58 Tex.Jur.2d 31, Sec. 5. We find no evidence in the record that such a custom and usage would, as a matter of law, constitute an affirmative defense which would justify the defendant company to rely exclusively upon the instruments in question as the mode of payment under the facts of this case. Since at best the custom or usage would be affirmative defense to justify the method of payment, and since the defendant company made no request for any findings on any element as justifiable cause, such argument here is without merit. It has been waived. McKinney v. White, Tex.Civ.App., 278 S.W.2d 553.

It is undisputed that the defendant company received plaintiff’s objection to the mode of payment on Friday, June 11, 1965. The company contends that after receipt of such objection it still had a reasonable time to make payment. The evidence shows that the company had some part of Friday, June 11, all of Saturday, and some part of Monday, plus the intervening Sunday to take measures to meet its responsibility to pay “at once”. As the Fifth Circuit suggests in Ocean Accident & Guarantee Corporation, Ltd. v. Manning, 24 F.2d 202, the reliable sources of Western Union were always available to defendant. The evidence further showed that prior negotiations for settlement had taken place between plaintiffs attorney and defendant’s agent who resided in McAllen, Texas, prior to the time the award became final. This agent in McAllen, some 34 miles and one hour away from plaintiff’s attorney, made no attempt to contact plaintiff during the intervening time. The trial court in any event was correct in concluding that after defendant had received plaintiff’s objections to the medium of tender on June 11, the company was obliged to make legal tender “at once”. And that during the intervening time and until plaintiff’s suit was filed, the fact that the defendant company had still not made any further tender, such inaction on behalf of the company, constituted a further failure to “make said payments promptly.”

The defendant company already was under the duty by law to pay “at once”. As found by the trial court, such instruments were not negotiable in character at the local banks, and the company was notified of their unacceptability by the plainitff and of the prospective suit; therefore, the significance of the duty to pay “at once” rose to a higher level. Opportunity from Friday to Monday was afforded the company to make payment in legal tender before suit was filed. This was not done. We, therefore, hold that the defendant did not discharge its duty to the plaintiff to pay the debt established by the board’s award.

Appellant complains that the trial court erred in considering evidence of what took place after suit was filed. We are not unmindful of our Supreme Court’s holding in Maryland Casualty Co. v. Lewis, supra, that the claimant’s pleadings will be strictly construed. However, there are material facts which distinguish this case. Here the parties agreed and stipulated that the subsequent payments due the plaintiff were mailed by certified mail, return receipt requested, but not picked up by plaintiff’s attorney and were subsequently returned to the company. The defendant company in its amended answer plead that the plaintiff had harassed the defendant company, not only by returning the instruments in question, but had instigated the law suit in question, and that the defendant company had continued to tender drafts in the customary, usual, and normal usage of the insurance industry through the United States mail. In the Lewis case, supra, the plaintiff was relying upon the inaction of the company for the first 9½ hours after the award became final. Here suit was filed 7 days after the award became final. In Lewis the company made tender into court of all payments then due at the time it filed its answer. Here, there was no such tender. There was no objection to the evidence of what transpired after suit was filed by the defendant. It is clear to us that the company was taking the position of insisting, from the beginning unto the end, that the type of instruments it used constituted payment and no other or further tender was necesary. What transpired after suit was filed was circumstantial evidence of the defendant company’s prior attitude. The defendant persisted' in sending the weekly payments in exactly the same form, well knowing that they were not acceptable to the plaintiff. Defendant never did try to meet plaintiff’s objection to the instruments in question.

We believe that the defendant’s subsequent conduct was evidence, properly received without objection; that defendant was relying exclusively upon the instruments in question; and that the plaintiff was obliged to accept such instruments as payment even after objection had been made.

The trial court found that 19 weekly installments were mailed to the post office for delivery to “addressee only”. Our Supreme Court in the Baucum case, supra, said that “[a]t common law where no place of payment is specified or fixed by law the rule is that the tenderer must seek the tenderee and make a tender to him if he can be found by the exercise of due diligence.” This was not done by the defendant company even after it had notice of the plaintiff’s demand for legal payment.

Appellant’s points are overruled. The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: NYE, Justice.

license: Public Domain

text:
    Fernando SANCHEZ et al., Appellants, v. Severa CAREY, a widow, et al., Appellees.
    No. 236.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 30, 1966.

      C. Pearce Schaudies, Harlingen, for appellants.
    Polk Hornaday, F. W. Moran, Harlingen, for appellees.
   OPINION

NYE, Justice.

This suit was brought by Severa Carey, a widow and her children, against defendant Fernando Sanchez to perpetuate and establish title to a rectangular strip of land 5 x 150 feet bordering their property. Plaintiff alleged that the rectangular tract had been in plaintiff’s possession and control since 1926 until the time of suit. Trial was had before a jury which resulted in plaintiff’s judgment against defendants for title and possession of the tract in question. Defendants have perfected their appeal relying on four bills of exception covering eight points of error. No findings of fact were filed. The transcript does not include all of the exhibits referred to in the bills of exception.

The burden is on the appellant to support his claim of error with bills of exception which clearly and accurately reflects the circumstances and the rulings of the trial court. 4 Tex.Jur.2d 39, § 507. Since several of appellants’ points of error and bills of exception concern the inclusion into evidence of certain instruments not brought forward in the record and certain testimony which was not fully developed or supported in the bills of exception, there is nothing in such points for this court to review. Sede v. Seele, 371 S.W.2d 922 (Tex.Civ.App. San Antonio 1963, err. ref’d, n.r.e.)

The absence of a statement of facts prevents consideration of assignments of error based on matters that should appear in a -statement. On those assignments of error that cannot be reviewed without a statement of facts it must be presumed on appeal that the evidence supports the judgment of the trial court. Lane v. Fair Stores, 243 S.W.2d 683 (Tex.Sup.1951); 3 Tex.Jur.2d 696, § 448. This same rule applies where only a partial record is filed in the appellate court or the record is otherwise incomplete. Baker v. Rutherford, 293 S.W.2d 669 (Tex.Civ.App.Waco 1956, n.r.e.). With these basic rules of law in mind we consider appellants’ complaints of error.

The defendant was the owner of Lots 1 and 3, Palm View Addition to the City of San Benito in Cameron County, Texas. These lots adjoined plaintiffs’ property to the north. The thrust of appellants’ complaint is that the plaintiffs did not plead nor claim any part of defendant’s lots 1 and 3, Palm View Addition; that plaintiffs’ pleadings were insufficient as a matter of law in that they failed to describe with reasonable certainty the property in question. Plaintiffs plead that the land in question was a rectangular strip of land 5 feet wide and about 150 feet long as reflected in the red rectangular area on Exhibit A attached to their pleading. They alleged that Exhibit A was a photostatic copy of a plat prepared by J. E. McNally, a consulting engineer, dated July 8, 1958, showing portions of the Kent and Palm View subdivisions in the City of San Benito, Texas; they further described the rectangular tract as being a portion of land just south of plaintiffs’ land as shown on Exhibit A outlined in red which has been in possession and control of the plaintiffs. Praying further for a temporary injunction, the plaintiffs plead that the defendant had informed the plaintiffs that he was going to tear down plaintiffs’ fence shown on Exhibit A as being the red line “XY” and would construct a fence on his own land 5 feet further north as set out on the red line marked “MN”. (XY and MN on Exhibit A designates the 4 corners of the red rectangular strip of land separating plaintiffs’ and defendant’s property). Defendant answered stating that he was the owner of lots 1 and 3 in Palm View addition; that plaintiffs had unlawfully and illegally and without claim of title held, used and possessed the 5 x 150 foot tract delineated in red in plaintiffs’ Exhibit A to his damage. Pleading further, the defendant asked the court to quiet title to the 5 x 150 foot strip delineated in red on plaintiffs’ Exhibit A as being a part of Lots 1 and 3, and asked the court to award him damages for the loss of a sale of his land because of the fence on his property and for rent covering the time plaintiffs were in possession of the strip in question.

The plaintiff must set forth in his pleading a description of the land sufficient to identify it. Plaintiffs’ Exhibit A was introduced into evidence and referred to by both parties in their pleadings. The plat was admittedly prepared by the surveyor employed by the defendant and used in the pleading by both parties. It is proper for the trial court and for this court on appeal to consider all of the pleadings to provide sufficient identification of the disputed property. Wallace v. Neumann, 74 S.W.2d 283 (Tex.Civ.App.Eastland 1934, err. ref’d.). We hold that the pleadings sufficiently identified the defendant’s property as being the land in question.

Defendant complains further that the trial court erred in submitting the controlling special issue with no further description of the land in the special issue than the words “the S x 150 foot rectangular strip of land in question” as a means of describing the disputed property. See Wofford v. Miller, 381 S.W.2d 640 (Tex.Civ.App.Corpus Christi, 1964, writ ref’d. n. r. e.). Defendant failed to object to the alleged defective submission of the court’s charge as required by Tex.R.Civ.P. 274. Therefore, the defect if any, is waived. Allen v. American National Insurance Company, 380 S.W.2d 604 (Tex.Sup.1964).

The defendant complains of the wording of the judgment of the trial court wherein the court relies on a plat (Exhibit A) for a legal description of the property and refers to lots 1 and 3, when the special issue referred only to a 5 x 150 foot strip of land. The judgment describes the land as being:

“ * * * that certain rectangular strip of land involved in the lawsuit and being the North 5 feet of Lots One (1) and Three (3) of Palm View Subdivision to the City of San Benito, Cameron County, Texas, according to the official map and plat records thereof of said subdivision, recorded in Volume 6, Page 37, on file in the County Clerk’s Office in Brownsville, Texas, to which official map and its record reference is made for all purposes, and as said rectangular tract is further portrayed in the shaded portion of the diagram shown on the following page of this judgment depicting a portion of the Kent and Palm View Subdivision in the
City of San Benito, Cameron County, Texas, to wit:”

Next follows the diagram which is attached to the judgment and is a photostatic copy of Exhibit A. The description is sufficient to support the judgment. Without a complete record before us we must presume that the evidence included the official map and plat records on file in the county clerk’s office. The court’s reference to the diagram is not error since such map was introduced into evidence and its relevancy is admitted by both parties where they referred to such exhibit to identify the disputed tract in their pleadings.

Defendant complains of the introduction of defendant’s tax deeds to lots 1 and 3 as being irrelevant, immaterial and highly prejudicial. The deeds are not included in the transcript nor are any facts shown in the bills of exception which would show error. Where appellant failed to preserve complaint regarding inclusion of certain evidence by bringing forward the instruments, there was nothing for the reviewing court to consider. Rosenfield v. Childs, 304 S.W.2d 391 (Tex.Civ.App. Texarkana, 1957 no writ).

Defendant next complains of plaintiffs’ introduction of their own deeds to their property for the reason that because the deeds describe the land by metes and bounds, such legal description was confusing to the jury. In absence of a statement of facts or a complete bill of exception, this point cannot be considered.

Finally, defendant complains that the trial court erred in permitting to be introduced into evidence a statement made by him at a prior hearing. At the preliminary hearing on the temporary injunction the defendant stated that he did not wish to be represented by counsel. At the conclusion of the hearing the court granted a temporary restraining order restraining the defendant from removing the fence on the property in question. At the conclusion, the defendant requested permission to make a statement to the court. He said: “ * * * so if you want to give S feet to them I have no objection * * This statement was admitted into evidence sometime during the course of the trial. Defendant complains that this statement amounted to a declaration against his interest whereas in reality, it was made in the light that he was willing to acquiesce in the trial court’s ruling as a law abiding citizen. This court, having no statement of facts, has no basis on which to determine the circumstances under which such statement was admitted. If such statement was error the defendant has failed to show probable harm. Tex.R.Civ.P. 434. This point is overruled.

Judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    AMERICAN-AMICABLE LIFE INSURANCE COMPANY, Appellant, v. Oscar W. LAWSON, Appellee.
    No. 14526.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 9, 1966.
    Rehearing Denied Dec. 14, 1966.

      Jones, Boyd, Westbrook & Lovelace, Waco, for appellant.
    Cox, Smith &• Smith, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by Oscar W. Lawson against American-Amicable Life Insurance Company, seeking to recover the sum of $25,000, allegedly due on an insurance contract upon the life of Richard James Lawson, his son. Stipulations and admissions were made by the parties; and both parties made motions for summary judgment. The trial court overruled defendant’s motion for summary judgment, granted plaintiff’s motion, and proceeded to grant judgment in plaintiff’s favor against defendant for the sum of $25,000, together with interest at the rate of 6 per cent per annum from September 21, 1964, until paid, and all court costs; from which judgment American-Amicable Life Insurance Company has prosecuted this appeal.

The facts herein seem to be undisputed and the rights of the parties are to be determined, as a matter of law, from the undisputed facts. It was stipulated by the parties that the statement of facts was included within the transcript. Whether by this stipulation they intended to change the case from a summary judgment case to an agreed case is not clear.

Richard James Lawson, a young man, twenty-one years of age, applied to appellant for a life insurance policy in the sum of $25,000, with double indemnity in the event of accidental death. His father, Oscar W. Lawson, appellee herein, was the beneficiary. The insured paid the sum of $26.50 as the first monthly premium; $24.25 was the premium for the basic policy and $2.25, for the double indemnity in case of accidental death. The application was dated July 29, 1964, and on the same day insured paid to Bob Bernard, soliciting agent of appellant, the sum of $26.50 in cash, and he received the following receipt:

“No. 66938
RECEIPT FOR FIRST PREMIUM AMICABLE LIFE INSURANCE COMPANY
WACO, TEXAS
Received from Richard James Lawson at Killeen, Texas, cash $26.50, check $-, being the full initial premium (not less than one monthly premium) in accordance with application for insurance coverage of even date (this receipt and the application bearing the same identifying number), subject to the agreement of the applicant to all conditions precedent stipulated at any point in the agreement set forth on the reverse side hereof as to the effective date of the insurance coverage. Dated this 29 day of July, 1964.
(Signed) Bob Bernard, Agent.”

The reverse side of the “Receipt for First Premium” contains the following words and language:

“In connection with the receipt on the reverse side hereof it is agreed by the applicant that: (1) the policy for which application is made shall be effective from the date of the medical examination, or if no such examination is required, from the date of this application, subject to payment in full of the initial premium (not less than one monthly premium), subject to the proposed insured person being alive and in good health on such pertinent date, subject to said application being accepted as evidenced by affirmative and active approval by the Company at its Home Office on the basis of the Company’s standard published rates for the exact form of policy and amount of coverage, and subject to the agent delivering the receipt set forth on the reverse side hereof; (2) no agent can make contracts or waive any rights without written consent from the proper executive officer at the Home Office of the Company; (3) no insurance coverage shall be effective if any check given for such premium is not paid on presentation; (4) if written notice of approval is not given within 60 days after the date of said application, disapproval or rej ection shall conclusively and automatically occur and exist as of the date of said application; (5) no temporary or interim insurance coverage shall exist by implication, but shall exist only in accordance with the express terms of this agreement; (6) if any policy differing in amount, premium, or form from that described in this application, or if any policy with any endorsement or rider attached is offered and accepted, such acceptance shall ratify any variance with the policy requested in said application, but such policy shall not become effective until actually delivered and accepted in writing during the good health and lifetime of the proposed insured person; (7) if any policy issued contains the Automatic Premium Loan Provision, I hereby request the Company to take such action as is required in applying such provision, all in accordance with the terms of the policy contract; and (8) the amount of the insurance becoming effective under the terms hereof shall in no event exceed $25,000 less the amount of all other insurance in force with the company.”

Insured was drowned on September 6, 1964. The application and receipt were received in the home office of appellant in Waco, Texas, and approved by the proper authority on September 8, 1964, which was two days after insured’s death. Appellant did not hear of insured’s death until September 9, 1964. On November 3, 1964, appellant paid appellee the sum of $25,000, but refused to pay the additional sum of $25,000 as double indemnity. Appellant based its refusal upon the provision of the 8th condition on the back of the receipt as set out above.

After judgment was rendered in favor of appellee, the parties made the following stipulation in open court, as shown by the judgment, to-wit:

“After the Defendant had given appropriate notice of appeal the parties, through their respective attorneys of record, stipulated and agreed that the Transcript on appeal shall serve also as the Statement of Facts and that no separate Statement of Facts need be prepared or filed, and in open court the Court approved this stipulation and agreement of the parties.”

The transcript contains “PLAINTIFF’S REQUEST FOR ADMISSIONS OF FACT” and appellant’s answers thereto, reading as follows:

“1. That the copy of the ‘Application for Insurance to Amicable Life Insurance Company, Waco, Texas’ attached to ‘SUPPLEMENTAL ANSWER OF DEFENDANT, SUPPLEMENT TO MOTION FOR SUMMARY JUDGMENT BY DEFENDANT’, on file herein, is a true and correct copy of the original thereof submitted to the Defendant and presently contained in its files. (Admitted.)
“2. That the applicant in said application, namely, Richard James Lawson, died on September 6, 1964 as a result of drowning. (Admitted.)
“3. That the said application (identified in number 1 above) was approved at the home office of the Defendant in Waco, Texas, on September 8, 1964. (Admitted.)
“4. That on September 8, 1964, the Defendant did not have knowledge of the death of the said Richard James Lawson on September 6, 1964. (Admitted.)
“5. That notice of the death of the said Richard James Lawson was received at the home office of the Defendant at Waco, Texas, on September 9, 1964. (Admitted.)
“6. That the words ‘DATE OF POLICY SEPTEMBER 8, 1964’ immediately preceding the words ‘(FOR HOME OFFICE ENDORSEMENT ONLY)’ on the said application were written thereon at the home office of the Defendant at Waco, Texas, after the said application had been approved thereon or about September 8, 1964. (Admitted.)
“7. That the stamped abbreviated word and figures ‘SEP-8 1964,’ together with the illegible initials immediately following, all immediately after the words ‘Approved on Plan Applied For’ and immediately above the words ‘Medical Director’ on the said application were placed thereon at the home office of the Defendant at Waco, Texas, on or about September 8, 1964. (Admitted.)
“8. That after the said application was approved at the home office of the Defendant at Waco, Texas, on or about September 8, 1964, a completed policy pursuant thereto was prepared by the Defendant at its home office at Waco, Texas, for delivery to the said applicant, namely, Richard James Lawson. (Denied. ‘No policy was ever prepared at any time.’)
“9. If you have admitted the truth of the foregoing statement (number 8 immediately above), attach as a part of your answers a true, and correct copy of that entire policy. (‘No answer is required in view of the answer to request No. 8. Defendant cannot attach a copy of a policy which was not ever prepared.’)
“10. That the said policy as so prepared by the Defendant for delivery to the said Richard James Lawson contained a ‘Supplemental Agreement For Accidental Death Benefit’ in the amount of $25,000.-00, substantially in the form of that attached as a ‘sample’ to ‘SUPPLEMENTAL ANSWER OF DEFENDANT, SUPPLEMENT TO MOTION FOR SUMMARY JUDGMENT BY DEFENDANT’ on file herein. (“In view of the answers to requests Nos. 8 and 9, request No. 10 which stated ‘That the said policy as so prepared by the Defendant for delivery to the said Richard James Lawson contained a ‘Supplemental Agreement for Accidental Death Benefit’ can only be denied since such a policy was not ever prepared.”)
“11. That on or about July 9, 1964, the said Richard James Lawson paid in cash to an agent of the Defendant $26.50. (Admitted.)
“12. That $24.25 of the said $26.50 was the monthly premium for a basic policy of life insurance in the amount of $25,000.00 on the life of the said Richard James Lawson and $2.25 thereof was the monthly premium for double indemnity benefits in the event of accidental death in the amount of $25,000.00 (Admitted.)
“13. That none of the said $26.50 was returned by the Defendant to the said Richard James Lawson during his lifetime. (Admitted.)
“14. That none of the said $26.50 was tendered by the Defendant to the said Richard James Lawson during his lifetime. (Admitted.)”

The important part of the application for insurance as far as this appeal is concerned is as follows:

The application was by Richard James Lawson to “Amicable Life Insurance Company (now American-Amicable Life Insurance Company) for a policy of non-participating insurance * * *.

“2. A. Plan Executive preferred. Amount $25,000.
⅜ ⅜ ⅝ ⅜ ⅝ ⅝
C. * * * Double Indemnity ‘Yes’
3. A. Premiums are to be Payable (Check Selection)
—Ann. Semi-Ann. —Quar. x Mo.
B. Total Mo. Premium $26.50
* ⅜ * * * ⅜
11. Beneficiary for Death Benefits
A. Full Name
OSCAR WILLIAM LAWSON.”

It will be noted that the exception “(8)” on the reverse side of the “Receipt for First Premium” states the same amount as does the application, $25,000.00. The matter of double indemnity is treated under a separate provision.

It is undisputed that $24.25 of the sum of $26.50 paid by insured for the first monthly premium was for basic insurance, and $2.25 for double indemnity. The application and receipt were on forms furnished by appellant.

All of the admitted and undisputed facts were sufficient to cause an ordinary applicant for insurance to understand that the limitation contained in provision “(8)” related only to the basic insurance, and did not have the effect of excluding the provision for double indemnity in case of accidental death. It was appellant’s duty to so word the provisions on its application and receipt that they would not be misunderstood by the ordinary applicant for insurance who is not schooled in the insurance business.

When we consider that the forms filled in and used were furnished by appellant, that the premium paid was for both the basic insurance and the accidental benefits, that the amount of limitation stated in exception “(8)” of the receipt, $25,000.00, was the exact amount of insurance stated in the application, that the subject of double indemnity was treated separately and apart from the amount of insurance in the application, we must construe exception “(8)” of the receipt as not denying to the ordinary applicant his right to double indemnity.

It is our duty to construe the provisions of the receipt as meaning what would be understood by an ordinary person and not as they might be understood by a person schooled in the insurance business. Both parties to this suit admit that this exact question has never been decided in this State, and the appellant says not in the United States or Canada.

As to the insurance contract for death benefits being separate and apart from the contract for accidental death benefits, see Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S.W.2d 857; Mainer v. American Hospital and Life Ins. Co., Tex.Civ.App., 371 S.W.2d 717.

We consider what was said by the Supreme Court of Tennessee in American Trust & Banking Co. v. Lessly, 171 Tenn. 561, 106 S.W.2d 551, 111 A.L.R. 59, as persuasive here, to-wit:

“In the former case the court held that an applicant for life insurance, when asked to name the companies in which his life was insured, was not required to disclose an accident policy. The court said that a general question concerning other existing life insurance did not call for a disclosure of existing accident insurance. The court was considering the meaning of language used in an application prepared by a life insurance company and merely concluded that the term ‘life insurance’ as there used meant life insurance in its conventional sense, not life insurance in its broad sense.”

Undoubtedly, in its broader sense the term “life insurance” may include accident insurance. Provident Life & Accident Ins. Co. v. Rimmer, 157 Tenn. 597, 12 S.W.2d 365. One of the risks assumed in accident insurance is death of the insured by accident. The risk assumed in conventional life insurance is death of the insured from any cause. Life is insured under either contract.

The judgment is affirmed.

BARROW, J., not participating in the decision of this case.

      . The following authorities, while not directly in point, are very enlightening on the question here involved: Allen v. Metropolitan Life Ins. Co., 44 N.J. 294, 208 A.2d 638 (1965); Ransom v. Penn Mutual Life Ins. Co., 43 Cal.2d 420, 274 P.2d 633 (1954); Simpson v. Prudential Ins. Co. of America, 227 Md. 393, 177 A. 2d 417 (1962); Albers v. Security Mut. Life Ins. Co., 41 S.D. 270, 170 N.W. 159 (1918); Gaunt v. John Hancock Mutual Life Ins. Co., 160 F.2d 599 (2 Cir. 1947, cert. denied, 331 U.S. 849, 67 S.Ct. 1736, 91 L.Ed. 1858); Duncan v. John Hancock Mut. Life Ins. Co., 137 Ohio St. 441, 31 N.E.2d 88 (1940); Metropolitan Life Ins. Co. v. Grant, 268 F.2d 307 (9 Cir. 1959); Wood v. Metropolitan Life Ins. Co., 302 F.2d 802 (9 Cir. 1962); Life Ins. Co. of North America v. De Chiaro, 68 N.J.Super. 93, 172 A.2d 30 (1961); Liberty National Life Ins. Co. v. Hamilton, 237 F.2d 235 (6 Cir. 1956); McAvoy Vitrified Buick Co. v. North American Life Assurance Co., 395 Pa. 75, 149 A.2d 42 (1959); United Founders Life Ins. Co. v. Carey, 363 S.W.2d 236 (Tex.1961); Colorado Life Co. v. Teague, 117 S.W.2d 849 (East.Civ.App. writ dismissed).


author: FRASER, Chief Justice.

text:
    Gwendolyn McFARLAND, Appellant, v. The FRANKLIN LIFE INSURANCE COMPANY, Appellee.
    No. 5766.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 9, 1966.
    Rehearing Denied Dec. 14, 1966.
    Stubbeman, McRae, Sealy & Laughlin and Milton L. Bankston, Midland, for appellant.
    Turpin, Smith, Dyer & Hardie, James T. Smith and Sam B. Cobb, Jr-> Midland, for appellee.
   OPINION

FRASER, Chief Justice.

This is an appeal from a judgment of the District Court of Midland County, Texas which allowed recovery under an insurance policy but did not allow the damages, attorneys’ fees and costs of court under the provisions of Article 3.62, Insurance Code of Texas, V.A.T.S.

The appellee issued its policy of insurance on the life of one John V. McFarland on March 2, 1950. At that time the insured was either nine or ten years of age. The policy was taken out by his father, and named the father as beneficiary, if living, or Mrs. Gwendolyn McFarland (the mother) as contingent beneficiary. The original beneficiary predeceased the insured. The insured married about a year or so before his death, which occurred on August 4, 1963, and left surviving him a widow referred to as Mrs. John V. McFarland or “Dana”, and his mother, the appellant herein. The appellant, through her attorney, on September 3, 1963, notified appellee of the death of the insured.

Appellant’s one point of error is that the trial court erred in refusing to allow her the twelve per cent damages on the proceeds of the policy, together with attorneys’ fees and court costs. She petitioned for these items, claiming that appellee was bound to pay same because its actions and/or failures to act made it liable under the provisions of said Article 3.62, Insurance Code of Texas. It appears that after considerable correspondence appellant filed suit against appellee, and appellee filed a bill of interpleader and cross-action against appellant and Mrs. John V. McFarland, the widow of the insured. The widow did not answer the cross-action, and default judgment was taken against her. Appellee paid the proceeds of the policy into the registry of the court.

As stated in the conclusion of her brief, appellant urges that appellee had no right to file an interpleader because it was not confronted by rival claimants; because appellee did not promptly and clearly admit liability and make a bona fide tender of the insurance amount due to the court; and because appellee was not entertained by a reasonable doubt in law or in fact as to whom the company should have paid the proceeds of the policy.

As stated above, appellant, through her attorneys, notified appellee of the death of her son, the insured, on September 3, 1963. It further appears from the record and the court’s Findings of Fact that some three days later, to-wit, September 6, 1963, claim forms were sent by appellee to the attorney for appellant; that on October 16, 1963, some five weeks later, appellee wrote the attorney for appellant stating that appellee had not received the completed Proof of Death forms and Policy. Then on October 29, 1963 appellee received a letter from the law office of Warren Burnett, admitted in the record to be a prominent West Texas attorney, stating that they represented the wife of John Vernon McFarland, deceased, and asking for details concerning the amount and the beneficiary of the policy in question. Then, on October 31, 1963, appellee wrote Mr. Alexander, of the Warren Burnett firm, informing him that they had been notified of the death by the attorney for appellant and had sent out the necessary forms to be filled out in order to collect on the policy, and that the beneficiary of the policy was the insured’s mother, “Mrs. Gwendolyn McFarland”. Then on November 1st, one of appellant’s attorneys sent the Proof of Death and Beneficiary’s Statement to appel-lee. On November 12th, appellee sent a letter to the attorney for the widow, Mr. Alexander, along with a copy of same to appellant’s attorney, enclosing a release to be signed by the widow of the insured if it was her intention to release any claim she might have to the proceeds of the policy. On January 7, 1964 the attorney for appellant wrote appellee reminding appellee that the Proof of Death and Beneficiary’s Statement forms executed by the mother (beneficiary), had been sent to appellee on November 1st. In this same letter the attorney mentioned the receipt of a copy of the letter to the attorney for the widow. Appellant’s attorney then stated as follows: “Regardless of ‘your practice’ the contract and the law in Texas require that the proceeds of this policy be paid to the beneficiary. Unless your check for the amount due under the policy is received forthwith or, in the alternative, we receive by return mail some valid reason (other than “your practice”) for withholding payment thereof, suit will be filed to recover on this policy, as well as attorneys’ fees which are authorized for this type of action.” On January 10, 1964 appellee replied to the above letter by appellant’s attorney, stating that Mr. Alexander, of Mr. Burnett’s firm, no longer represented the widow of the insured, and that Mr. Alexander indicated that there should be no problem in obtaining a release from her. The letter then says the necessary forms are enclosed for the signature of the insured’s widow, and after a discussion of the manner and amount of payment, appellee states in said letter as follows:

“We agree that as beneficiary Mrs. Gwendolyn McFarland does have an interest in the policy proceeds, but the extent of her interest is certainly questionable under your Community Property Statutes when there is a surviving spouse. Claims of this kind are not infrequent in your state or in other states, where Community Property prevails, and it is seldom that we have a case where it is not determined that some part of the proceeds should go to the spouse. When the spouse is not brought into settlement, it is the opinion of our Legal Counsel that a Release of any interest she might have should be obtained for the Company’s protection against additional liability. We have followed this procedure for many years and without any difficulties; in fact, this procedure was discussed with your Texas State Insurance Department in 1959 without any suggestions for change in it.
“We were at fault in not following this case more closely with Mr. Alexander, and when our check is issued to Mrs.Gwendolyn McFarland, we will include interest at our current rate of deposit at 3(4% from November 4, 1963, the date proof of claim was received in this office.”

On February 6, 1964 some thirty days after appellant’s letter of January 7th, the present suit was filed.

We believe that the decision of the trial court in denying the damages, costs and attorneys’ fees under Article 3.62 of the Texas Insurance Code was correct.

It has long been elementary that statutes penal in nature must be strictly construed, and this must be kept in mind in dealing with the problem confronting us. Rio Grande Nat. Life Ins. Co. v. Bailey, Tex.Civ.App., 153 S.W.2d 493 (n. w. h.); Whittet v. Reliance Life Ins. Co., Tex.Civ.App., 213 S.W.2d 164. We believe that the language in the case of Murray v. Bankers Life Company, Tex.Civ.App., 299 S.W.2d 730, reaffirmed in Murray v. American National Insurance Company, Tex.Civ.App., 300 S.W.2d 187, is descriptive and decisive of the matter before us. These two cases show that a writ was refused in each— in other words, they are not n. r. e. cases. The language of the court in Murray v. Bankers Life Company, 299 S.W.2d page 733, is as follows:

“We are of the opinion that all of appellant’s points must be overruled. Appellee never denied liability on the policy; and before an insurer may escape payment of penalties, interest, and attorney’s fees, we do not think it is necessary in every case that more than one person be actually claiming the fund. The true rule seems to be that regardless of who initiates the suit, where the insurer admits liability, but has reasonable grounds for anticipating rival claims, and in good faith declines to pay the named beneficiary, and deposits the money in court to be paid to the rightful person as determined by the court, it is not liable for more than the face amount of the policy.”

Then follows a long list of cases cited by the court, which we will not include in this opinion.

It must also be noted that the record shows that before the suit was filed, the appellee was not told that community funds were not used to pay premiums on the policy involved, nor had appellee been informed that appellant could not or would not secure a release from the widow because of the admitted ill-feeling between the two women. The record shows that appellant testified that she and her late husband had always paid all the premiums on the policy in question.

We are therefore faced with a situation, as explained by appellee’s letter of January 10, 1964, where apellee had, in the opinion of the trial court, a reasonable fear or apprehension that the widow might have, or would assert, some claim on the proceeds of the policy. This is set forth and discussed in the said letter wherein mention is made of problems arising in Community Property jurisdictions. We agree with such opinion or holding by the trial court.

We do not find that appellee ever denied liability for payment of the proceeds of the policy. The matters alluded to above, to-wit, that the premiums had been paid by the beneficiary, and not the widow, and the bad feeling between appellant and the widow, were brought out at the trial of the case held during the September, 1964 term of the court. Therefore, the appellee was, in our opinion, reasonably concerned about a possible claim from the widow of the insured, but did not make a flat denial of liability; and when suit was filed, did pay the amount due on the policy into the registry of the court. The January 10, 1964 letter from appellee seems to be a reasonable explanation why it had not at that time paid the amount due on the policy, and it must be remembered that the Proof of Death and Beneficiary forms were not sent to the appellee until November 1, 1963. Also, we must consider that although the lawyers for the widow stated that there should be no problem in obtaining a release from her, the same attorneys had also stated that they no longer represented the widow; so that at that time the appellee had only an opinion, and not a promise, and probably did not then know whether the widow would be as willing and acquiescent as her former attorneys thought she might be with regard to signing the necessary release.

For the above reasons, we believe that the trial court acted correctly and rendered the right decision. We have carefully examined the record, the Findings of Fact and Conclusions of Law, and find them substantially reasonable and supported by adequate probative evidence. Therefore we must agree with the trial court that the appellee did not act, or fail to act, in any manner sufficient to entitle appellant to the damages, attorneys’ fees and costs by virtue of Article 3.62, Insurance Code of Texas. In our opinion the law on this matter depends on whether the appellee was acting in good faith and on reasonable grounds, and does not require the insurance company to act as judge and jury, but only reasonably and upon reasonable grounds. We believe the record here sustains the position of the appellee and the decision of the trial court.

Appellant’s point of error is accordingly overruled, and the judgment of the trial court is in all things affirmed.


author: HUGHES, Justice.

text:
    JOHNSON SERVICE COMPANY, Appellant, v. CINBAR ENGINEERING COMPANY, Inc., Appellee.
    No. 11456.
    Court of Civil Appeals of Texas. Austin.
    Nov. 23, 1966.
    Rehearing Denied Dec. 14, 1966.

      Brundidge, Fountain, Elliott & Churchill, Bobby D. Dyess, Dallas, for appellant.
    J. Malcolm Robinson, Austin, for appel-lee.
   HUGHES, Justice.

This is a venue case. It was instituted in Dallas County by Johnson Service Company, appellant, against I. Murphy Co., Inc., The Aetna Casualty Company and appellee, Cinbar Engineering Company, Inc.

There is no statement of facts. This case was tried upon stipulation and admissions of the parties. The facts are not in dispute.

Murphy is a resident of McLennan County. Cinbar is a resident of Travis County. Aetna is a foreign corporation with an agent in Dallas County.

Robert Schroeder, Jr. was general contractor for the construction of a high school in Copperas Cove, Coryell County.

Cinbar was a subcontractor under Schroeder for plumbing, heating and air conditioning work on the Copperas Cove school. It gave a bond to accommodate Murphy and to enable Murphy to become a subcontractor under Schroeder. Aetna was surety on this bond. This bond recited that Cinbar, as principal, and Aetna, as surety, were bound to Schroeder for the use and benefits of claimants in a fixed sum. “Claimants” were defined “as one having a direct contract with the Principal” for labor and material used in performance of the subcontract with Cinbar. The condition of the bond was that if Cinbar paid claimants, the bond would be void, otherwise to be in full force and effect.

Appellant contracted with Murphy to furnish and supervise installation of a temperature control system in the Copperas Cove High School. Appellant completed this contract at a cost of $1,250.00. Appellant also supplied other materials which went into the school building, the cost of which was $190.00.

Murphy did not pay appellant for the work and materials furnished as above indicated and appellant notified Aetna of this fact and Aetna, in turn, notified Cinbar. Cinbar thereupon paid the $190.00 claim to appellant but refused to pay the $1,250.00 on the ground that it was not given adequate notice of the claim.

Cinbar pleaded its privilege to be sued in Travis County, the county of its residence. By a supplemental plea of privilege Cinbar alleged that no cause of action was pleaded against Aetna, the resident defendant, under Art. 5160, and, in the alternative, that the cause of action against Aetna is upon a surety bond given for the performance of work to be done in Coryell County and that under Art. 7.01, Texas Insurance Code, V.T.C.S., venue of such suit is mandatorily fixed in the county where such bond is filed.

It is not alleged that the bond executed by Aetna was filed in Coryell County or in any other county. Neither have we found any admission or stipulation giving information on this matter, nor do the briefs mention it. In fact, appellee does not cite Art. 7.01 in its brief.

We quote the following from appellee’s supplemental plea of privilege:

“Therefore, mandatory venue against the Defendant, Aetna Casualty & Surety Company, is in Coryell County where Copperas Cove, Texas, is located and cannot be maintained in Dallas County.
WHEREFORE, premises considered, Defendant prays the Court to sustain its plea of privilege heretofore filed and supplemented herein by this instrument and transfer the cause to Travis County, Texas, the residence of this Defendant.”

The trial court interpreted appellee’s plea of privilege as requesting transfer of the case to Travis County only but was “of the opinion that this cause should be transferred to Coryell County because it has come to the Court’s attention that Coryell County is the location of where the construction of the Copperas Cove High School took place, and by virtue of the decision in Pennsylvania Ins. Co. v. Storbeck and Gregory [Tex.Civ.App.], 391 S.W.2d 811.”

Since appellee did not ask that this case be transferred to Coryell County it has waived any right which it may have had in this respect. K. S. Wendler Construction Co., Inc. v. Austin Mechanical Contracting Co., Tex.Civ.App., 407 S.W.2d 852, Austin (October 26, 1966) and authorities therein cited.

It only remains to be determined whether appellee’s plea of privilege that this case be transferred to Travis County should be sustained.

Appellant contends that this suit is maintainable ' in Dallas County under Sub. 4 of Art. 1995, V.T.C.S., which provides, in part, that, “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.” Under this subdivision it was necessary that appellant allege and prove a cause of action against Aetna, the resident defendant.

Appellee contends that no cause of action was alleged or proved against Aetna because appellee did not allege or prove compliance with Art. 5160 regarding the giving of the notices required to recover on the bond in suit.

Appellant contends that this is not a suit on a bond required by Art. 5160, but is a suit on a common law bond, that Aetna is liable as a surety on such bond and appel-lee as principal on such bond is a necessary party under Rule 31, Texas Rules of Civil Procedure.

It is not questioned but that the construction of a high school is within the provisions of Art. 5160, and that regardless of the terms of the bond if given pursuant to such Act, the provisions of Art. 5160 would be written into it by law.

The position of appellant is that Art. 5160 does not require a bond from a subcontractor to a subcontractor, as here involved, and Art. 5160 and its notice provisions are not incorporated in such bond and are not otherwise applicable.

Appellee replies, “Although the subcontractor’s bond is not spelled out as being required by the statute, it is, as a practical matter, required by the general contractor as a result of the requirements of 5160 upon him before he awards any subcontracts ; so that for all practical purposes it is a requirement of Article 5160.”

We cannot agree with the reasoning of appellee. If the bond in suit is not a bond required by any statute, it is not a statutory bond; it is a common law bond. This question has been decided by the Waco Court of Civil Appeals, opinion by Judge Alexander, in Metropolitan Casualty Insurance Company of New York v. Texas Sand and Gravel Company, Tex.Civ.App., 68 S.W.2d 551, writ dismissed. The Court in speaking of a bond executed by a subcontractor in favor of the general contractor who was subject to the provisions of Art. 5160 said, “The bond in question, not being one required by the statute, is to be construed as a common-law obligation, and, if liability is to be fixed against the surety in favor of Strain [a claimant for labor for the subcontractor], it must be by virtue of the provisions of the bond.” See also Hannah v. Stephens, 101 S.W.2d 823, El Paso, Tex.Civ.App., n. w. h.

It follows that Art. 5160 is not applicable to this case and the question of whether appellant made out a case against Aetna must be determined by a consideration of the terms of the bond in suit, unaffected by the provisions of Art. 5160.

Appellee contends that appellant does not come within the protection of the bond in suit because appellant is not within the definition of a claimant as given in the bond since appellant had no direct contract with Cinbar, appellant’s contract being with Murphy.

Appellant pleaded that Cinbar and Murphy as joint adventurers were subcontractors under Schroeder in the construction of the Copperas Cove school and, in the alternative, that Cinbar, by agreement with Schroeder and Murphy became principal on the bond given by mechanical subcontractors for the performance by Murphy for the work contracted to be performed.

The bond given reflects that Cinbar was principal in the bond and that it was a subcontractor.

Cinbar admitted that it furnished the bond in suit to accommodate Murphy “but only as co-surety with Aetna * * * regardless of the form of the bond.”

Cinbar further admitted that it furnished the payment bond to Murphy to accommodate Murphy “ * * *' to become the subcontractor under Schroeder * * *” for the construction of the Copperas Cove school.

Cinbar also admitted that it “ * * * was paying for all matters in connection with labor furnished or materials supplied to I. Murphy Company in the construction of the Copperas Cove High School * * ”

On July 16, 1965, appellee, by its attorney, sent appellant the following communication :

“Johnson Service Co.
507 East Michigan Street
Milwaukee, Wisconsin 53201
Re: I. Murphy Company, Inc.
Copperas Cove High School
Copperas Cove, Texas
Gentlemen:
Enclosed please find payment in full for all matters in connection with the captioned. This payment is being made to you direct from Cinbar Engineering Co., Inc., in lieu of payment by Aetna Life and Casualty Company. Notice as to any other alleged indebtedness was not timely under the Texas statutes and this represents full payment.”

Regarding this payment, appellee states in its brief “ * * * so Cinbar paid the $190.00 to Johnson stating in the transmittal letter that that was all that it was obligated to pay because it had not received adequate notice as to the first indebtedness.”

It is our opinion that the relationship between Cinbar and Murphy was such that a contract with Murphy was, in effect, a contract with Cinbar.

We reach this conclusion because of the admissions of Cinbar that it furnished the bond in suit to accommodate Murphy and to enable it to procure a subcontract with Schroeder, and because it admitted liability for the debts of Murphy under its contract with appellant.

Whether Aetna was privy to this arrangement is a more delicate question.

The only evidence in the record to suggest acquiescence in or knowledge on the part of Aetna to the arrangement between Cinbar and Murphy of the nature indicated above is Cinbar’s admission that it was co-surety with Aetna regardless of the form of the bond. This indicates that some agreement or understanding must have been reached between Cinbar and Aetna, possibly to the effect that the true principal in the bond was Murphy.

We do not believe this case has been fully developed and that, in the interest of justice, it should be reversed and remanded. Adding weight to this conclusion is our holding that the trial court disposed of this case on an erroneous theory.

The order transferring this case to Cor-yell County is set aside and this cause is reversed and remanded.

Reversed and remanded.


author: BARROW, Justice.

text:
    George G. COOK et ux., Appellants, v. James E. IRION et al., Appellees.
    No. 14518.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 23, 1966.
    Howard Jefferson Gibbs, El Paso, for appellants.
    Hardie, Grambling, Sims & Galatzan, John C. Akard, Scott, Hulse, Marshall & Feuille, Barney Oden, Jr., El Paso, for appellees.
   BARROW, Justice.

This is an action for legal malpractice. Appellants brought suit to recover actual and exemplary damages from appellees for their alleged negligence in handling a claim for damages sustained by appellants as the result of a fall by Mrs. Cook on a sidewalk at the Charles Bassett Community Center in El Paso on August 2, 1962. At the conclusion of appellants’ case, the trial court sustained appellees’ motion for instructed verdict and entered a take-nothing judgment.

In February 1963, appellants employed appellee John C. Akard on a contingent fee basis to assert their claim for damages sustained by Mrs. Cook’s fall. Shortly thereafter, Mr. Akard associated appellee James E. Irion, of the law firm of Irion and Rash, with the understanding that Mr. Irion would take the lead in prosecuting this claim, since he had wide experience in the trial of personal injury claims.

The Bassett Community Center is a complex containing many different stores and on August 2, 1962, eight new stores were being opened with a big promotion and sale throughout the Center, including a live telecast from the Center. Mrs. Cook, while shopping at the Center, allegedly fell when she tripped on a television cable which was on the sidewalk in front of one of the stores. In this situation there were three possible defendants against whom appellants’ claim might be asserted: Charles Bassett Shopping Center, Inc., the owner of the community center as well as the sidewalk where the fall occurred; KROD TV, Inc., the owner of the television cable on which Mrs. Cook tripped; and the Bas-sett Center Merchants Association, an organization of all the tenants in the Center as well as the landlord, which organization had sponsored and arranged for all the promotional activities to attract the public to the Center.

Suit was originally filed against the corporation that owned the Center, however, this suit was subsequently non-suited on advice of appellee Irion and another suit brought against only the Merchants Association. In September of 1964 this case went to trial and, at the conclusion of plaintiffs’ case, an instructed verdict was granted the Association. No appeal was perfected from the take-nothing judgment entered in that case. Sometime thereafter the appellants employed their attorney of record in the present case and this suit was brought against appellants’ former attorneys for malpractice in handling the original suit.

Appellants concede that in order to prevail in this suit they were required to establish by a preponderance of the evidence that appellee-attorneys were negligent and that this negligence caused appellants to lose their suit. This burden is stated in 7 Tex.Jur.2d Attorneys at Law § 135 (1959), as follows: “It is necessary for the client to prove that his suit would have been successful but for the negligence of the attorney, and to show what amount would have been collectible had he recovered a judgment.” See also 45 A.L.R.2d 5, for comprehensive annotation on attorney’s liability for negligence in preparing and conducting litigation.

Appellants alleged that appellees were grossly negligent in suing only the Merchants Association instead of proceeding against all three of the possible defendants. More than two years had elapsed before the first trial was had and appellants assert that the statute of limitations would have barred any subsequent suit against the Center and/or KROD TV. There is no allegation of lack of good faith on the part of appellees or any allegation that the trial was mishandled. Mrs. Cook did testify that appellees failed to “brief” or “prepare” her prior to testifying at the original trial, although she was “briefed” prior to the taking of her deposition, and there is no showing that this failure resulted in any harm to appellants.

John E. Allen, Esq., a duly licensed attorney who was practicing in Alpine, Texas, testified as an expert witness on behalf of appellants. He had never tried a jury or any other type case in El Paso County, and therefore did not profess to testify as to the degree of care, skill and diligence customarily exercised by attorneys practicing in El Paso County. He was permitted to testify, over the objection of appellees, that appellees had failed to exercise the standard of care of the average general practitioner in the State of Texas in not suing all three of the possible defendants. In substance he testified that “when there is room for doubt in your mind as to whether some party might or might not be liable as to whether some party or concern might or might not have operation and control of the premises, all (or) one have operation, the other have control, they may be joint tort feasors, and those doubts would necessarily, I think, in the proper representation of a client would be resolved in making those people parties-defendants.” He admitted that he might later have dismissed one or more of the defendants after full investigation, and that the plaintiff would be at a real disadvantage in giving the defendants 18 peremptory challenges.

The duty of the attorney in representing his client is well stated by the Supreme Court of North Carolina in Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144, 45 A.L.R.2d 1 (1954), as follows: “Ordinarily when an attorney engages in the practice of the law and contracts to prosecute an action in behalf of his client, he impliedly represents that (1) he possesses the requisite degree of learning, skill, and ability necessary to the practice of his profession and which others similarly situated ordinarily possess; (2) he will exert his best judgment in the prosecution of the litigation entrusted to him; and (3) he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to his client’s cause.” Patterson & Wallace v. Frazer, Tex.Civ.App., 79 S.W. 1077, charge approved by Supreme Court, 100 Tex. 103, 94 S.W. 324 (1906); Collins v. Wanner, Sup.Ct. of Okl., 382 P.2d 105 (1963); 7 Am.Jur.2d Attorneys at Law § 168; Restatement of the Law of Torts 2d, § 299A. He is thus subject to the same general rules of law as are physicians, dentists, and other professional people. Prosser, Torts, 3d Ed., p. 164; Theobald v. Byers, 193 Cal.App.2d 147, 13 Cal.Rptr. 864, 87 A.L.R.2d 986.

The attorney is not liable, however, for an error in judgment if he acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client. Morgan v. Giddings, Tex., 1 S.W. 369 (1886); Great American Ind. Co. v. Dabney, 128 S.W.2d 496 (Tex.Civ.App.—Amarillo 1939, writ dism’d, judgmt. cor.; Hodges v. Carter, supra; Glenn v. Haynes, 192 Va. 574, 66 S.E.2d 509, 26 A.L.R.2d 1334; Collins v. Wanner, supra; 7 Am.Jur., supra, § 170; 7 C.J.S. Attorney and Client § 140.

When this record is considered in the light of these controlling principles of láw, it is manifest that appellants failed to raise a fact issue of negligence on the part of appellees, or any of them. It is seen that their complaint relates solely to a matter of judgment which appellee Irion was required to exercise in handling this claim. Suit was first brought against the Center, however, after further investigation of the matter, this defendant was non-suited and suit was filed against the Merchants Association. It is uncontradicted that the Association, which actually arranged the promotional activities on this date including the telecast, was a proper defendant. It is significant that all tenants in the Shopping Center as well as the corporation owning the Center were members of this Association. The Merchants Association was insured and apparently able to respond in damages. In this situation it was a matter of judgment to be exercised in the light of the local situation and the attorney’s experience, as to whether any advantage could be gained by joining additional defendants.

Furthermore, an attorney practicing in a vastly different locality would not be qualified to second-guess the judgment of an experienced attorney of the El Paso County Bar as to who should be joined as additional party defendants. In this case Mr. Allen practicted law in Alpine, which is 220 miles from El Paso, and it is further significant that the population of Brewster County is 6,434, as compared to 314,070 in El Paso County. As admitted by Mr. Allen, the probable make-up of the jury panel is an important consideration of whom to sue where there is an option. The importance of knowledge of the local situation is fully demonstrated by the well-recognized practice among the lawyers of this State in associating local counsel in the trial of most important jury cases.

The record in this case demonstrates that Mr. Irion was associated in this case by Mr. Akard because of Mr. Irion’s superior knowledge and experience in the trial of this particular type case. There is no complaint that Mr. Irion did not in good faith and to the best of his ability endeavor to recover on what all parties concede is a difficult type claim. The fact that this suit was unsuccessful does not warrant the re-examination of his tactics or acts of judgment which were undeniably made in good faith.

Since appellants failed to establish that appellees were negligent in the handling of this suit, it is unnecessary for us to consider whether an instructed verdict would have been granted against appellees under the testimony of Mrs. Cook as to the open and obvious condition of the cable regardless of who was sued.

The judgment is affirmed.


author: COLEMAN, Justice.

text:
    Juan LOPEZ, Appellant, v. COLUMBUS QUARTER HORSE ASSOCIATION et al., Appellees.
    No. 14912.
    Court of Civil Appeals of Texas. Houston.
    Dec. 1, 1966.
    Rehearing Denied Dec. 22, 1966.

      Ted Musick, Houston, for appellant.
    James R. Coffee, Houston, and Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellees Columbus Quarter Horse Association and Paul Walker.
   COLEMAN, Justice.

This is an appeal from a summary judgment for the defendant in a personal injury damage suit.

The appeal is predicated on two points of error:

First. “The Honorable Trial Court erred and violated his discretionary powers in not granting Plaintiff’s motion for continuance, in that the Plaintiff himself was a material witness, and it was necessary for him to make the affidavit setting up the fact situation to be determined by a jury, when due diligence was used by Plaintiff’s attorney to find him after the motion for summary judgment had been filed and prior to such hearing.”

Second. “The Trial Court erred in granting motion for summary judgment, because there were several fact situations to be determined by the jury as to the negligence of the Defendants and/or the contributory negligence of the Plaintiff and the assumption of risk, if any.”

The motion for summary judgment of defendants, Columbus Quarter Horse Association and Paul Walker, was filed March 10, 1966. On the date set for hearing the motion, April 15, 1966, the plaintiff, through his attorney, filed a motion for continuance on the ground that the plaintiff was out of the country and that the attorney was not able to secure his affidavit to controvert the motion. The motion does not state when the plaintiff left the country. The suit was filed February 26, 1964, and the plaintiff’s deposition was taken on February 18, 1965. In the deposition the plaintiff gave testimony concerning the matters at issue under interrogation by his own counsel as well as at the instance of the defendants’ counsel. On April 15, 1966, presumably after the hearing, it appears that the plaintiff was located and he executed an affidavit which was attached to an answer to the motion for summary judgment filed in the cause on April 17, 1966. The judgment sustaining the motion for summary judgment and the order overruling the motion for continuance were entered on the 21st day of April, 1966.

A failure to allege facts showing diligence in attempting to secure the testimony of an absent witness is sufficient to support the action of the trial court in refusing a motion for continuance. Aetna Insurance Company v. Klein et al., 318 S.W.2d 464 (Tex.Civ.App., Houston, 1958, rev’d on other grounds, 160 Tex. 61, 325 S.W.2d 376, 1959); Jinks v. Jinks, 205 S.W.2d 816 (Tex.Civ.App., Texarkana 1947, no writ hist.).

The deposition of the plaintiff was available for use and was considered by the trial court. Appellant must show injury as a result of the denial of the motion for continuance and he has failed to do so. Panhandle Broadcasting Co. et al. v. Cercy, 363 S.W.2d 792 (Tex.Civ.App., Amarillo, 1962, no writ hist.); Texas Indemnity Insurance Company v. Harlan, 236 S.W.2d 564 (Tex.Civ.App., Eastland 1951, writ dism.).

Appellant’s second point of error is too broad and general to comply with Rule 418, Texas Rules of Civil Procedure, and to require consideration by this Court. Appellant has not pointed out either in the statement or argument under ithe point the fact issues which he considers raised by the pleadings, the deposition, or the affidavits. Crutchfield v. Associates Investment Company, 376 S.W.2d 957 (Tex.Civ.App., Dallas 1964, writ ref.).

The judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    CITY OF HOUSTON, Appellant, v. Joseph L. RABORN et ux., Appellees.
    No. 4549.
    Court of Civil Appeals of Texas. Waco.
    Nov. 23, 1966.
    Rehearing Denied Dec. 15, 1966.
    Wm. A. Olson, City Atty., Joseph G. Rollins, Sr., Asst. City Atty., Houston, for appellant.
    Lloyd Lunsford, South Houston, for appellees.
   OPINION

TIREY, Justice.

This is a condemnation suit. It involves the taking of all of Lot 15, in Block 8 of the Airport Gardens Addition to the City of Houston, such land being contiguous to the Houston International Airport. The property consists of 23,030 square feet of land upon which was a wooden frame structure built for residential purposes, consisting of approximately 1,857 square feet.

The purpose of the acquisition was for a clear zone required in the extension of the Northwest-Southeast runway of the airport.

The Special Commissioners made an award to Raborn of $13,556, and the City of Houston deposited such amount into the registry of the court and took possession of the property pending final judgment. The Raborns appealed and, at the conclusion of the testimony, the court submitted one issue which was: “From a preponderance of the evidence, what do you find was the market value on or about April 10, 1961, of the defendants’ 23,030 square feet of land together with all improvements thereon, condemned by the City of Houston for airport purposes?” To which the jury answered “23,000.” The judgment followed the verdict and awarded to the Raborns the sum of $23,000, but provided that the city should have an offset of the $13,556 awarded to the Raborns by the Commissioners’ Court, which sum had been withdrawn by the Raborns under orders of the court, and decreed accordingly.

The judgment is assailed on three points. They are substantially to the effect that the court erred in rendering judgment on the verdict because:

(1) The verdict and the judgment entered thereon are each excessive;
(2) The verdict and judgment are not supported by the evidence;
(3) The verdict and judgment are contrary to the overwhelming weight and preponderance of the evidence so as to make the verdict and the judgment clearly wrong and unjust.

We overrule each of the foregoing points for reasons hereinafter stated.

Pertinent to this discussion, five witnesses testified as to the market value. Mr. and Mrs. Raborn and Mr. Harold J. Sonsel, an appraiser, testified in behalf of the Raborns. Three appraisers testified for the city, viz.: Osenbaugh, Douglas and Reed. Each of the foregoing witnesses separated their opinions as to the aggregate market value into two parts, viz.: land value and the value of the improvements.

Mr. Raborn testified to the effect that the value of the land was $6,000 and the improvements $18,500, a total value of $24,500. Mrs. Raborn’s testimony was to the same effect.

Mr. Sonsel fixed the value of the land at $12,666 and the value of the improvements at $10,446, making a total value of $23,112.

Mr. Osenbaugh fixed the land value at $1500 and the improvements at $11,700— total $13,200.

The witness Douglas fixed the land value at $1500, improvements at $10,500 — total $12,000.

Mr. Reed fixed the land value at $1500 and the improvements at $12,122 — total value $13,622.

Appellant in its brief says: “It can be seen, therefore, that a crucial question is to determine the weight of Mr. Sonsel’s opinion of the market value, since the jury obviously adopted it.” We are not in accord with this view and we do not think it accurately states the rule that is followed in Texas. As we understand the appellant’s brief and its counsel’s oral argument, it is to the effect that the values which we have heretofore detailed show that the jury followed the values placed on the property by the witness Sonsel in making its award. We cannot agree with this contention.

In Hood v. Texas Indemnity Insurance Co., 146 Tex. 522, 209 S.W.2d 345, our Supreme Court expressly held that “Opinion testimony does not establish any material fact as a matter of law.” In this cause each of the witnesses placed a different value on the improvements, although the City’s witnesses placed the same value ($1500.00) on the lot. However, the jury in arriving at its verdict, did not have to adopt all the testimony of either of the witnesses. It could adopt the testimony of each of the witnesses in part and reject it in part. The jury had the duty of resolving the testimony and in agreeing on a verdict as to the value of the property, taking into consideration the value of the land, together with all improvements thereon.

Since appellant complains that the verdict of the jury is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust, we have given our best efforts to a careful consideration of all the testimony tendered by the parties.

The testimony in this record is in two volumes, consisting of a total of 437 pages. The testimony of each of the expert witnesses showed that each of them were well trained and well qualified to do appraisal work, and it was the province of the jury to resolve their testimony, as well as the testimony of Mr. Raborn, and fix the reasonable market value of the property. In the City of Houston v. Schorr, 279 S.W.2d 957 (Tex.Civ.App.1955, error ref., n. r. e.) we find this statement:

“All opinions of values depend for their acceptance probably more upon the faith the witness inspires rather than upon how well the reason he supports his conclusions. But be this as it may, the evidence was competent and if the values were not supported by good reasoning, they went to the weight and not the competence of the evidence. We must, therefore, hold that there was evidence to sustain the award.”

In Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62 (1945) our Supreme Court made the following pronouncement :

“Jurors in weighing the evidence before them have a right to use their common knowledge and experience in life. If the opinions of experts as given in the evidence do not comport with the jurors’ ideas of sound logic, the jurors have a right to say so.”

In appellant’s brief we find this statement: “Appellant frankly concedes that in this field of weight and sufficiency of the evidence in eminent domain cases, there are numerous cases that could be used to justify either a reversal and remand, re-mittitur, or affirmance.” Much has been written on the weight and sufficiency of the evidence in these condemnation cases, and we know of no way to reconcile or distinguish them, and the best that the Court of Civil Appeals can do is apply the rule stated in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. See also 38 Tex. Law Rev. 361. In doing so, that requires a careful consideration of all the testimony. This we have done, and we cannot say, as a matter of law, that the jury’s verdict is so against the great weight and preponderance of the evidence as to be wrong.

Accordingly, the judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    Bernice JACKSON et al., Appellants, v. Ruth Lee BRACKINS, a feme sole, Appellee.
    No. 14917.
    Court of Civil Appeals of Texas. Houston.
    Dec. 1, 1966.
    Rehearing Denied Dec. 22, 1966.

      J. Leonard Gotsdiner, Ranseler O. Wyatt, Houston, for appellants.
    Buck C. Miller, Walter C. Wiebusch, Houston, for appellee.
   WERLEIN, Justice.

Appellee, Ruth Lee Brackins, a feme sole, brought this suit against appellants, heirs at law of John Henry Jackson, Deceased, to recover the title and possession of Lot No. 4 in Block No. 27, Independence Heights Addition, an Addition to the City of Houston, in Harris County, Texas, according to the map thereof recorded in Vol. 3, Page 42, of the Map Records of said County, and also to cancel a deed which she had previously executed to said John Henry Jackson, and to remove a cloud on her title. At the conclusion of the evidence, the trial court, on motion of appellee, withdrew the case from the jury, and entered judgment in favor of appellee for the title and possession of said property.

The evidence shows that on or about November, 1962, appellee, who was at such time Ruth Lee Blair, wife of Nelson Blair, and John Henry Jackson agreed to enter into a partnership for the purpose of making bail bonds. In order to engage in such business, it was necessary that Jackson have a sufficient amount of property that might be looked to as security for bonds that would be executed by him for the partnership. In order to accomplish this appellee, joined by her then husband, conveyed the above described property to John Henry Jackson by deed dated November 13, 1962, and recorded in the Deed Records of Harris County, Texas. Immediately thereafter and on the same day John Henry Jackson executed and delivered to appellee, Ruth Lee Blair, a deed reconveying the same property to her as and for her separate property and estate. It was agreed between the parties that this latter deed would not be placed of record. The next day appellee took such deed to the lawyer who had drawn it up and requested that he change her name from Ruth Lee Blair to Ruth Lee Brackins in the reconveyance, since the property was at all times her separate property and her husband, Nelson Blair, had no interest whatever therein. The lawyer made the change requested, striking out the name “Ruth Lee Blair” as grantee and inserting the name “Ruth Lee Brac-kins” which was the maiden name of ap-pellee. The evidence further shows that no bail bond was ever executed or made by the partnership or either partner, and that sometime later the said John Henry Jackson died, and the marriage of appellee and Nelson Blair was annulled.

In their first two points, appellants assert that the trial court erred in overruling their motion for judgment after finding a situation of pari delicto, and also erred in granting appellee’s motion for judgment granting affirmative relief after finding the transaction made the basis of this suit to be an illegal contract. Both of these assignments of error are overruled. The trial court made no findings of fact whatever, but entered judgment in favor of appellee for the title and possession of said property and denied all relief prayed for by appellants in their cross-action. At one point during the trial the trial court stated a general rule of law, but such statement did not consist of a finding of fact in the instant case. Furthermore, appellants have not pleaded that the transaction in question was illegal.

Even if we assume that appellee and Jackson did enter into a contract tainted with a wrong or illegal motive, such fact would not keep appellee from recovering the property in question. The contract was not entered into for the purpose of defrauding anyone. Had said parties actually executed as sureties any bail bonds, the property in question could have been looked to by the proper officials as security and the unrecorded reconveyance to ap-pellee would not have prevented resort to such property. It has been held in this State that although a contract is entered into for the purpose of defrauding creditors, the motive of the parties will not be considered when there are in fact no creditors. Ellis v. Valentine & Son, 65 Tex. 532, 547. See also DuPerier v. DuPerier, 59 Tex.Civ.App. 224, 126 S.W. 10, writ den.; Pointer v. Pointer, Tex.Civ.App., 197 S.W.2d 504; Barber v. Coleman, Tex.Civ.App., 173 S.W.2d 660, writ dism.

Appellants also assert that the court erred in the application of the doctrine of “clean hands” by failing to leave the parties in the situation they were at the inception of the suit. In this connection it should be noted that the trial court did not cancel the deed from appellee to Jackson, nor did the court grant any equitable relief whatever to either party. Appellee sued not only for cancellation of such deed but also for the title and possession of the property in question, and the court decreed that appellee recover from appellants the title and possession of such property. As between the parties the ownership of such property was always in appellee since immediately after her execution of the deed to Jackson, he reconveyed the property to her. The deed reconveying the property was duly executed and delivered to appellee, who took the deed home with her. The next day the change was made in her name in the deed by the attorney who prepared the deed. There is no change in the grantee in such deed, but merely a change in her name which was made the day after the reconveyance to her of the property in question. Under the facts and circumstances of this case the court properly decreed title and possession of the property in appellee.

Judgment affirmed.