author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Howard Lee McDANIEL, Appellant.
    No. 51122.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Richard E. Crowe, Sp. Asst. Atty. Gen., Clayton, for respondent.
    No brief filed for appellant.
   HENLEY, Judge.

Defendant, charged by information with robbery in the first degree by means of a dangerous and deadly weapon, was found guilty by a jury and his punishment assessed at five years in the custody of the Department of Corrections. §§ 560.120 and 560.135. (All references to statutes and to Rules are to RSMo 1959 and V.A.M.S., and V.A.M.R., respectively.) His motion for judgment of acquittal or, in the alternative, for a new trial was overruled. Judgment was entered sentencing him in accordance with the verdict, and he appeals.

He was represented throughout the trial by able counsel, who also prepared, presented evidence on, and argued his above-mentioned after-trial motion. A brief has not been filed in his behalf in this court; therefore, we consider such points as may be preserved for review in his motion for new trial. Rule 27.20. In his after-trial motion consuming twenty pages of the transcript he has as many numbered paragraphs, some with subdivisions. Some paragraphs comply with Rule 27.20; others do not. Generally speaking, he says the court erred: (1) in overruling his motions for judgment of acquittal filed at the close of the state’s case and at the close of the whole case, (2) in the admission and exclusion of evidence, (3) in giving, refusing to give, and in failing to give certain instructions, (4) in permitting improper argument by counsel for the state, (5) in restricting the location of counsel for defendant during his examination of a witness, and, (6) in permitting the jury to consider improper evidence acquired by one of the jurors during an unauthorized visit to the scene of the alleged crime as a result of the court’s failure to instruct the jury to not visit the scene.

Evidence presented by the state would warrant the jury finding: That on the evening of October 7, 1963, at about 8:30, three negro men, one armed with a revolver, robbed Henri Tron in his place of business, taking furs of the approximate value of $9,000. Tron’s business was known as “Henri Tron Furrier” and was located at 8600 Ward Parkway in the Ward Parkway Shopping Center in Jackson County. While working on furs with his helper, Marvin Vaughn, in the back room or shop, they heard the buzzer signal indicating someone was entering the front door. Tron got up from his sewing machine to go to the front or sales portion of the store. At a doorway of a partition separating the two areas he met a negro man wearing a rubber Halloween-type mask, who carried a revolver in his hand. On inquiry by Vaughn as to whether this was a Halloween trick, the negro replied, “No, sir, this is a stick-up”, and commanded the two men to lie face down on the floor. In this position they were bound, hands and feet, with adhesive tape; their hands behind their back. They then heard the buzzer sound twice more, indicating two other persons had entered the front part of the store. Tron moved his body and was struck on the head with the revolver. The man with the revolver went to the front of the store from which Tron and Vaughn could hear their voices and see the legs of the three robbers moving about as they removed furs with their hangers from the racks. Both testified that the hand of the man with the revolver was that of a negro; that the three voices they heard in the front part of the store had negro accents. Apparently the robbery took only a few minutes. Shortly after the robbers left the two men managed to get loose from the tape, and Tron immediately reported the robbery to the police. Neither Tron nor Vaughn saw the faces of the three men and could not identify them.

On this evening Mrs. Cheryl Fanner Costley was working at the Elko Camera Store three doors North of The Promenade, onto which the entrance door of Henri Tron Furrier opens. Mrs. Costley had stepped outside onto the walkway in front of her store to determine whether an electric sign overhead was on, and was getting a breath of fresh air when she saw three negro men with their arms loaded with furs running out The Promenade doorway. One of these men she positively identified as defendant. As they came through this doorway, the three turned to their right taking two or three steps toward her. She could see their faces. They then turned to their left to go to an automobile parked approximately 50 feet distant on the other side of the driveway adjacent to the Camera store. She said she also saw their faces as they glanced back over their shoulders enroute to the automobile. Apparently the whole area, including the driveway and parking area, The Promenade, and the walkways in front of the store, is well lighted. Two witnesses said: “[the] lighting is very, very good; in fact it is exceptionally good. It is almost like daylight there.” Reaching their automobile the three men threw the furs into the back seat, got in, and on their way out of the shopping center passed within a few feet of Mrs. Costley. Defendant was sitting in the back seat behind the driver and as the automobile passed by her she saw his face again for a few seconds. The automobile was a Chevrolet bearing Missouri license number ZY5-042. Mrs. Costley immediately went into her store and wrote this license number on a piece of paper. The police arrived within a few minutes and she talked with Officer Sidney Vaughn to whom she gave the paper bearing this license number. The Halloween mask was found in the Tron store, and a mink skin was found on The Promenade floor where it had apparently been dropped by the robbers. A few days later Mrs. Costley went to police headquarters and examined books of photographs from which she selected and identified a photograph of the defendant as one of the robbers. Several weeks later she identified defendant in a “line-up” at police headquarters. She again identified defendant as one of the robbers at the trial. Two days after the robbery a 1961 Chevrolet bearing this license number was recovered by police detective John McLaury at 53rd Street and Indiana. Inside the automobile the officer found a garment tag bearing the name “Henri Tron Furrier” and nearby in the area he found thirteen wooden hangers with long metal necks commonly used for hanging furs, a partly used roll of adhesive tape, and a man’s suit on which was found what he described as animal hair.

The defendant did not testify. He offered evidence, but this consisted chiefly of photographs of the shopping center taken at night to show the general layout of the area, a plat showing distances from stores and different points in the area to other points, all explained by testimony of the photographer, and Naval Observatory data showing the time of sunrise and sunset on the date of the robbery.

The evidence is sufficient to support the verdict and judgment. In paragraphs numbered 1 and 2 of his motion for judgment of acquittal or for a new trial defendant contends that the court erred in overruling his motions for judgment of acquittal filed at the close of the state’s case and at the close of the whole case. Defendant offered evidence in his own behalf at the close of the state’s case and, of course, waived any claim of error in overruling his motion made at the close of the state’s case. State v. Spraggins, Mo., 368 S.W.2d 407 [1], The allegations of paragraphs 1 and 2 are long and rambling covering over eight pages of the transcript; basically, these allegations constitute a contention and argument that the verdict was against the weight of the evidence and that the testimony of certain witnesses, particularly Mrs. Costley, was not credible, for which reasons defendant says the court should have directed a verdict of acquittal. This court will not weigh the evidence where, as here, there is substantial evidence to support the finding of the jury and the judgment of the trial court. State v. Spraggins, supra.

Defendant assigns as error action of the court in sustaining an objection by the state to the following inquiry or request of Mrs. Costley during her eross-examination by defense counsel. “Q * * * Mrs. Costley, how would you describe the defendant’s nose?” [Counsel for the State]: “Your honor, I will object to that; the defendant is right in front of this jury.” This occurred after defense counsel had handed Mrs. Costley a photograph which she identified as a picture of defendant. We assume this photograph and defendant’s true facial features were not the same as the witness had described them in a deposition. That is the implication of counsel’s questions. By subsequent questions counsel caused her to admit she had previously testified that defendant had a sharp or thin pointed nose. How this witness who had thus described defendant in her deposition would now describe defendant’s nose with him apparently in full view of both the witness and the jury may be one method of attacking the witness’ credibility, but there are others, and this objection to the court’s ruling is hypertechnical and the result immaterial. No doubt defendant got his point across to the jury by his subsequent method of having her admit her previous description which, as indicated, probably conflicted with defendant’s features as seen by the jury. The court did not err in thus restricting the method or latitude of cross-examination. A similar complaint is made to the action of the court in sustaining an objection to another question asked this witness in an attempt to attack her credibility. The court sustained an objection to an inquiry as to whether the witness had been asked in her deposition if she had before that occasion ever seen counsel for defendant. By an offer of proof at this point it appears that counsel sought to attack her credibility by demonstrating her lack of ability to identify accurately counsel for defendant. This was done by showing she had testified in her deposition that defendant’s counsel was present during the trial of another criminal case in which she was a witness when in fact he was not present. Although wide latitude should be permitted in cross-examination of a witness on matters affecting credibility, the scope of such examination on collateral matters, such as is described above, is not without its limitations and rests within the exercise of sound discretion on the part of the trial court. State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 924 [5]. The court did not abuse its discretion in so limiting cross-examination on this matter.

Defendant’s next assignment is that the court erred in admitting in evidence a thermo-fax copy of the paper on which Mrs. Costley had written the license number of the automobile in which defendant was seen to leave the scene of the robbery. His contention is that it had not been shown that the original had been lost; that the copy was not the best evidence. The record shows that the copy offered and received in evidence was a true reproduction of the original and, through the testimony of Detective McLaury, that at the time of this trial the original paper was lost. The court did not err in admitting the copy in evidence. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, 108 [33]; State v. Barrington, 198 Mo. 23, 95 S.W. 235, 259 [17].

Defendant assigns as error the admission in evidence of the testimony of Henri Tron that the voices he heard during the robbery had a negro accent. The reason stated in his objection to this testimony was: “I don’t believe the proper foundation has been laid.” We can assume only that defendant had reference to the qualifications of the witness to identify negro accents for defendant makes no further explanation of what he meant by lack of foundation. Mr. Tron testified that he had heard negro accents before this occasion. The witness was obviottsly qualified to identify the accent and the court did not err in admitting this testimony. This testimony was not offered or received in evidence to identify specifically defendant as one of the robbers,, but was merely to identify the probable race of the robbers. This court has held that recognition and identification of a defendant by his voice alone was sufficient to carry a robbery case to the jury. State v. Bell, Mo., 300 S.W. 504, 505 [1]; State v. Hall, Mo., 7 S.W.2d 1001, 1004 [2]. Permitting a case to go to the jury on the identification of defendant by his voice goes further than was attempted here.

In the next point considered he assigns as error the admission of evidence of flight by defendant from a police officer three days after the robbery. Officer Eugene Buie testified that there was a police headquarters order for a “pick-up” of defendant for investigation in connection with the Tron robbery; that he knew defendant; that on October 10, 1963, he saw defendant about 50 feet distant walking across Brooklyn at 11th Street; that defendant saw and recognized him as a police officer at about the same time and ran, eluding arrest. The officer next saw defendant on December 4, 1963, and arrested him. Defendant told the officer he had been to California in the interim. Asked by the officer why he ran from him in October, defendant replied, according to Buie, because, “he was scared and didn’t want to go to jail.” Evidence of flight is competent as bearing on the question of guilt or innocence. State v. Garner, 360 Mo. 50, 226 S.W.2d 604, 609 [7]; 22A C.J.S. Criminal Law, § 625b, page 467. Closely allied to this point is defendant’s contention that the court erred in permitting counsel for the state to argue defendant’s flight as an inference of guilt, particularly in view of the fact the court did not instruct the jury on the weight they were to give evidence of flight. The court did not err in permitting counsel to argue that an inference of guilt could be drawn from the fact that defendant ran from the officer. State v. Harris, Mo.App., 325 S.W.2d 352, 358 [16],

The next assignment of error is akin to and a part of the basis for defendant’s objection to this argument; that is, that the court erred in failing to instruct the jury as to the weight to be given to the evidence of defendant’s flight from Officer Buie. Defendant did not request an instruction on this subject. This is a collateral issue and absent defendant’s request the court did not err in failing to give an instruction on flight. State v. Rhoden, Mo., 243 S.W.2d 75, 79 [10].

The allegations of paragraphs 14, 15 and 16 of defendant’s motion are so indistinct, unclear and obscure we cannot determine what he would assign therein as error. His general, rambling, argumentative statements in each of these paragraphs repeating in each these three subjects: (1) testimony of Detective McLaury that the automobile recovered by him at 53rd and Indiana Streets was stolen (to which testimony the court sustained defendant’s objection and instructed the jury to disregard), (2) a statement by the state’s attorney in argument that “You know pretty well from your common experience where this car came from”, and, (3) the alleged prejudicial effect of admission in evidence of a thermo-fax copy of the paper bearing the license number of the automobile in which defendant left the scene, do not comply with the requirements of Supreme Court Rule 27.20, V.A.M.R., and preserve nothing for review.

In paragraph 18 of his motion defendant complains of action of the court in requesting or suggesting that his counsel “stand back a little” from the witness during his cross-examination of Mrs. Costley. No objection to this request was made at the time; the allegations of the motion are not sufficient to comply with Rule 27.20, and the complaint preserves nothing for review. Too, the record shows that the manner of the court in making this request was courteous and could not have prejudiced defendant. And, as stated by defendant in his motion, the court was enforcing its Rule 20 requiring counsel to sit or stand at the counsel table while examining a witness.

The defendant assigns as error (in paragraph 20 of his motion) the court’s refusal to give his offered instruction No. A. The instruction contains a misstatement of the law: “The Court instructs the jury that they should not convict the Defendant on insufficient evidence, if the jury does find and believe beyond a reasonable doubt that the evidence is insufficient to sustain a verdict of guilty; * * The instruction would have been harmful to defendant, because it requires the jury to find the evidence insufficient beyond a reasonable doubt. The court did not err in refusing to give it for this reason alone. The balance of the instruction is cautionary in nature, telling the jury that their verdict should be based solely on the evidence. The giving of a cautionary instruction is discretionary with the court. State v. Hinojosa, Mo., 242 S.W.2d 1, 11 [23]. No abuse of discretion is shown.

Defendant next assigns as error action of the court in permitting counsel for the state in his closing argument to comment on the fact defendant did not testify. The argument referred to is: “She has seen this man now five or six times. This is important to remember. She says there is no doubt in her mind that this is the man. And note: There has been no contradiction to this identification. None whatsoever.” The court overruled defendant’s objection to this argument and his motion for a mistrial. We find no error in the action of the court, or in the argument. Similar arguments have been held to not constitute a comment on the failure of defendant to testify in the following cases, among others: State v. Siekermann, Mo., 367 S.W.2d 643, 651 [17]; State v. Hite, Mo., 298 S.W.2d 411, 413 [3]; State v. Murray, Mo., 280 S.W.2d 809, 811 [4].

In paragraphs 7, 8 and 9, of his motion defendant assigns as error action of the court in giving instruction No. 9, after the jury had retired to deliberate on its verdict. He contends that this instruction coerced the jury to return a verdict of guilty. He also contends the giving of this instruction, the verdict, and the remarks of the court commending the jury after they had returned the verdict, substantiate his claim that the court was prejudiced against him. The contentions and claim are without merit. The record discloses: the jury retired to deliberate at 2:10 p. m.; at 5:40 p. m. the jury was returned to the courtroom and, on inquiry by the court, the foreman stated they stood 11 to 1, without indicating whether this standing was for guilt or innocence. The court then gave instruction No. 9: “It is desirable that there should be a verdict in every case. It costs considerable money and time to try a lawsuit, and the parties are entitled to have their rights determined in every case. I want to make it clear that no juror should ever agree to a verdict that violates the instructions of the Court, nor find as a fact that which under the evidence and his conscience he believes to be untrue. Yet each of you should respect the opinions of your fellow jurors as you would have them respect yours, and in a spirit of tolerance and understanding endeavor to bring the deliberations of the whole jury to an agreement upon a verdict.” At 6:18 p. m. the jury returned its verdict. The instruction did not constitute coercion by the court. Like instructions have been held proper as against this contention in State v. Stegall, Mo., 327 S.W.2d 900, 901-2 [1, 2] and cases there cited.

In paragraphs 5 and 6, of defendant’s motion he complains (1) that the court erred in failing to instruct the jury that members of the panel should not visit the scene of the robbery during the course of the trial; and, (2) that as a result of that failure one of the jurors visited the scene at night, during a recess, observed the lighting conditions thereat, and reported such to other members of the panel. This information, he says, the jury improperly took into consideration in their deliberations. Attached to defendant’s motion in support of these allegations is the affidavit of counsel for defendant wherein he states that the foreman of the jury had told him that a member of the jury had visited the scene of the robbery to determine its lighting conditions, but that neither counsel nor the foreman knew the name of this juror. On presentation of his motion defendant called to the stand Albert L. Donnell, Sr., foreman of the trial jury, by whom he sought to prove these allegations. He asked this witness whether during their deliberations any member of the jury had said that he had visited the robbery scene at night during the trial. An objection by the state that this evidence would be hearsay was sustained for that reason and for this further reason stated by the court: “because it is an attempt to impeach a jury verdict by a member of the jury.” Defense counsel then made an offer of proof of the allegations of the motion. It is interesting to note that the offer of proof indicated that this still unidentified juror told the jury he went to the shopping center with his family as a matter of curiosity on his part to see how it was arranged; that he did not go to the point where the witness, Mrs. Costley, said she was standing when she saw defendant; and, that it was still daylight on the summer evening of his visit and the lighting conditions obviously not the same as the night of the robbery. The court did not err in sustaining the obj ection and declining the offer of proof. In the first place the testimony of Mr. Donnell would have been hearsay. Too, as stated by the trial court, the rule is that a juror will not be heard to impeach the verdict, whether the alleged misconduct occurred inside or outside the jury room. State v. Gabriel, 342 Mo. 519, 116 S.W.2d 75, 79 [10]. Quoting with approval from State v. Linn, 223 Mo. 98, 122 S.W. 679, 682, the court said in State v. Keller, Mo., 104 S.W.2d 247, 249: “This court, in State v. Underwood, 57 Mo. 40, laid down the rule that jurors speak through their verdict, and cannot be allowed to violate secrets of the jury room and tell of any partiality or misconduct that transpired there, * * * and thisohas become the settled law of this state.” In State v. McGinnis, 320 Mo. 228, 7 S.W.2d 259, 260 [4] one of the contentions was that the verdict was influenced by matters outside the evidence; the court held the testimony of one of the jurors was properly excluded. Also see: Hoffman v. Dunham, Mo.App., 202 S.W. 429, 431 [5,. 6]; Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 492 [9, 10], 129 A.L.R. 795; State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22, 31 [27-29]. The affidavit of counsel for defendant was incompetent for the purpose for which it was made. Hoffman v. Dunham, supra; State v. Gabriel, supra. In State v. Finnell, Mo., 280 S.W.2d 110, 114 [10], this court said: “ * * * affidavits or testimony of third persons as to statements of jurors tending to impeach their verdict are inadmissible, not only as hearsay but also for the same reason which excludes the affidavits or testimony of the jurors themselves.”

The actions of a juror in visiting the scene of an alleged crime during the course of a trial, such as that which would be described in the offer of proof, are, of course, not to be countenanced. However, even in this offer of proof there is no indication that the jury considered the information allegedly imparted to them, nor that it affected their verdict. The matter of the granting of a new trial for alleged misconduct of a juror is largely within the discretion of the trial court and we do not consider that under the circumstances of this case that discretion was abused. Hoffman v. Dunham, supra.

As to defendant’s complaint that the court erred in failing to instruct the jury not to visit the scene, we note that throughout the trial this able and conscientious trial judge very carefully, even before the jury was sworn to try the issues, and at every recess, instructed» and cautioned the jury not to discuss the case among themselves and to permit no one else to discuss it within their hearing, etc. At the request of defense counsel, the court further cautioned the jury not to read newspaper articles concerning this case, if any should appear, or listen to radio or television broadcasts, if any, concerning the case. Had counsel wanted the court to caution the jury not to visit the scene he should have requested this. The court could not reasonably anticipate a member of the jury might visit the scene. Too, we consider that the cautionary instructions given would carry the message to any reasonably intelligent juror that he should not visit the scene during a trial recess. The court did not err in failing to so specifically instruct the jury.

We have discussed all the questions presented in defendant’s after-trial motion that seem to merit consideration, and possibly have taken space unnecessarily to discuss some where it was questionable whether the allegations of his motion actually preserved anything for review.

An examination of the record as required by Supreme Court Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: HOLMAN, Judge.

license: Public Domain

text:
    TRANSPORTATION EQUIPMENT RENTALS, INC., (Plaintiff) Appellant, v. John L. STRANDBERG, Sr., (Defendant) Respondent.
    No. 50848.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.

      A. J. Falcone, Kansas City, for plaintiff-appellant
    Thomas J. Leittem, Robert R. Raymond, Whitson G. Rogers, Kansas City, Shughart, Thomson & Kilroy, Kansas City, of counsel, for defendant-respondent.
   HOLMAN, Judge.

In this action plaintiff sought to recover from defendant for certain items (totaling $19,851.83) alleged to be due it by reason of the provisions of an automotive equipment lease agreement signed by the parties on March 31, 1960. The trial resulted in a verdict for the defendant. Plaintiff has duly appealed from the ensuing judgment.

Defendant, John L. Strandberg, Sr., was an officer and stockholder of Concrete Building Products Company (hereinafter sometimes referred to as the Company) of Harrisonville, Missouri. He had engaged in the concrete block business for many years. In 1951 his son, John L. Strandberg, Jr., became active in the business and, after 1957, defendant was semi-retired and did not actively engage in the operation of the business. In the spring of 1960 the son endeavored to purchase certain trucks and other heavy equipment used in the business. He located certain equipment but was unable to finance the purchase of it because of the impaired financial condition of the Company.

Plaintiff was engaged in a nationwide leasing business, specializing in the leasing of trucks, trailers, and other similar equipment. As a result of certain negotiations between plaintiff’s branch manager, William D. Hull, and the Strandbergs, plaintiff purchased seven items of equipment needed by the Company and leased them to defendant with the Company as guarantor of defendant’s obligations under the lease. Because of the financial condition of the Company plaintiff required that the lease be made with defendant so that his assets would be obligated for the performance of the lease.

Under the terms of the lease defendant was obligated to pay a total rental of $982.-22 per month, and the lease acknowledged as paid in advance the last six months’ rental. Four of the vehicles were leased for a term of two years, one for three years, and two for five years. The lease specified the original value of each item of equipment and then set up the monthly rent per vehicle and also a monthly depreciation reserve. This reserve was arrived at by estimating the residual salvage value of the item at the end of the lease and deducting that amount from the original value, and then dividing the remainder by the total number of months for the term of the lease.

The lease provides that upon its termination, or upon default in the payment of rent, the lessor shall take possession of the equipment and during the succeeding twenty-one days shall sell the same for the highest cash offer obtainable, with the proviso, however, that lessor shall first give reasonable notice in writing to lessee as to the highest cash offer received. The lessee is then given the right to object to such sale, in which case the lessor shall hold the equipment for the full twenty-one days and may then proceed to sell the same and account to the lessee. It further provides that upon the sale of a vehicle the amount received shall be added to the monthly depreciation reserve, computed to date, and if the total amount is in excess of the original value the lessor shall pay the amount of such excess to the lessee. But, if the amount so determined is less than the original value, the lessee shall pay the difference to the lessor. As an alternative, in the event of default, the lessor is given the right to lease the equipment for the remainder of the term for the account of the lessee, and if such net rental is less than that provided in the lease the lessee shall pay the deficiency to the lessor. There is also a provision in the lease that in the event lessor is required to institute a suit to enforce its rights under the lease the lessee shall pay the sum that may be allowed by the court as attorney fees.

The Company ceased operations early in 1961 and shortly after April 10, 1961, plaintiff took possession of the leased equipment. Some of the equipment was sold within the 21-day period and admittedly no notice was given to the defendant with respect to the highest cash offer received therefor. All of the equipment was eventually sold by plaintiff and it claimed a deficiency resulting from the sale totaling $6,430.66. Plaintiff also claimed rent due of $8,839.98, and a reasonable attorney fee of $4,581.19, making a total claim of $19,851.83.

After plaintiff had obtained possession of the leased vehicles its branch manager, Mr. Hull, prepared four separate agreements which we will refer to as “cancellation agreements.” Except for the leased vehicles described therein these agreements are identical. They contain the following:

“The undersigned parties to the attached Lease Agreement dated the 31st day of March 1960, hereby mutually agree to cancel that portion of Exhibit ‘As dated the 25th day of April, 1960, pertaining to the above vehicles; such cancellation to be effective the 25th day of April, 1961.” Exhibit “A” (made a part of the lease) consists of several pages describing the vehicles covered by the lease, the rent, depreciation reserve, term, and insurance coverage required.

Mr. Hull testified that after plaintiff obtained possession of the vehicles he prepared the cancellation agreements, signed them on behalf of plaintiff, and mailed them to defendant with the request that he sign them. He stated that he later called defendant and further explained the cancellation agreements and thereafter defendant signed the agreements and mailed them to him. Mr. Hull denied that he told defendant that if he signed the agreements he would not owe any rent. He stated that, in the telephone conversation, he explained to defendant that the purpose of the agreements was to cancel the equipment from the terms of the contract so that plaintiff would not be required to continue billing the defendant for the additional monthly rent on the equipment.

Defendant, in his testimony, stated a different version of the telephone conversation he had with Mr. Hull concerning the cancellation agreements. He said that when he received the papers he did not sign them because he felt there was sufficient value in the equipment to take care of the deficiency in the rental; that Mr. Hull thereafter called and asked him to sign the papers and that he told Mr. Hull that he realized he owed certain obligations under the lease and that he would not sign the agreements unless it would “wipe out” his indebtedness under the lease; and that Mr. Hull replied that that was the reason for signing the cancellation agreements.

Defendant further stated that, relying upon Mr. Hull’s statement that all of his obligations owed under the lease would be wiped out if he signed and returned the cancellation agreements, he did sign same and sent them to Mr. Hull in Omaha.

In this case defendant relied upon three defenses which were: (1) that the cancellation agreements constituted a release of all of defendant’s obligations under the contract; (2) that plaintiff w.as guilty of a material breach of contract in not giving defendant notice of the bids before selling certain of the equipment and therefore should not be permitted to recover as to the deficiency item; and (3) that the value of the equipment repossessed was in excess of the amount due under the contract and therefore the claim of plaintiff, if any, was accordingly extinguished.

The first contention briefed by plaintiff is that the court erred in submitting the cancellation agreement to the jury as a release of plaintiff’s claim. It is said that such is particularly true as relates to the claim for rent which had already accrued; that it was entitled to a judgment, as a matter of law, for that item.

“It is always competent for the parties to rescind a subsisting contract by an agreement to that effect. Persons competent to contract can as validly agree to rescind a contract already made as they could agree to make it originally. * * * An agreement of rescission depends upon the intention of the parties, and, since a contract is made by the joint assent of two or more parties, it can be rescinded by agreement only by the joint assent of both, or all, such parties.” 17 Am.Jur.2d § 490, p. 962. See also Thumm v. Lohr, Mo.App., 306 S.W.2d 604 [6], and cases there cited.

The real question here involved is whether the trial court should have interpreted the new contract (cancellation agreement) as a matter of law or whether it was proper for the jury to construe the agreement, taking into consideration the extrinsic evidence relating thereto. It has been said that where the language of the contract on its face “is not clear or is ambiguous, and resort to extrinsic evidence is necessary, if such evidence be conflicting, or, if not conflicting, different conclusions might reasonably be drawn therefrom, the construction of the agreement is for the jury under proper instructions from the Court.” National Corporation v. Allan, Mo.App., 280 S.W.2d 428, 432.

For convenience, we repeat the main provision of the cancellation agreement, as follows: “The undersigned par-, ties to the attached Lease Agreement dated the 31st day of March 1960, hereby mutually agree to cancel that portion of Exhibit ‘A’ dated the 25th day of April, 1960, pertaining to the above vehicles; such cancellation to be effective the 25th day of April, 1961.” As stated, the various pages of Exhibit “A” describe the leased vehicles and state the original value, monthly rent, depreciation reserve, term, and insurance requirements of the lease. We think the brief cancellation agreement, quoted above, is certainly vague and ambiguous. The word “cancel” is defined as “the act of annulling or rescinding.” Webster’s Third New International Dictionary. However, as used in the agreement, the meaning of the words “cancel” and “cancellation” is not clear. The agreement could mean (1) that it merely released the vehicles from the future operation of the rental provisions of the lease (as plaintiff contends), but it is also reasonably susceptible of the construction (2) that it cancelled or rescinded all obligations of either party under the lease. In that connection it should be remembered that defendant testified, without objection, that plaintiff’s agent stated to him that the object of the agreement was to cancel (wipe out) his indebtedness under the lease.

An agreement such as the one now before us must be supported by a consideration. We have concluded, however, that there was a sufficient consideration for the agreement, as construed in (2), supra, and as submitted in Instruction No. 3. The consideration to defendant was his release from the payment of all obligations under the lease. The consideration to plaintiff was that it could retain the vehicles indefinitely or could sell them in any manner it chose without any notice to defendant concerning the price. Also, as a result of the agreement, plaintiff was released from liability for having admittedly violated the contract by selling certain vehicles within the 21-day period without any notice to defendant. “The consideration for such annulment or rescission is to be found in the fact that each thereby reciprocally receives from the other a renunciation and surrender of the rights, benefits, and advantages which the contract conferred and a release and discharge from the burdens and obligations it imposed.” 17 Am.Jur.2d § 491, pp. 963, 964.

We rule that the cancellation agreement was supported by a sufficient consideration ; that it was ambiguous and that the court properly submitted the construction thereof to the jury. Juniper Lumber Co. v. John M. Nelson, Jr., Inc., 133 Va. 146, 112 S.E. 564, 24 A.L.R. 247; Parker v. School Dist. of Valley Park, Mo.App., 325 S.W.2d 59. In support of its contention plaintiff has cited Schwartz v. Van Winkle, Sup., 47 N.Y.S.2d 264, and Cherry Valley Iron Works v. Florence Iron River Co., 64 F. 569 (6th Cir.1894), but the facts in those cases are so different from those in the case before us that they cannot reasonably be applied in the determination of the issues.

Plaintiff’s next point is that the court erred in giving Instruction 3 because it failed to hypothesize sufficient facts for the jury to make a finding that the cancellation agreement constituted a release. The instruction required a finding “that plaintiff and defendant entered into an agreement referred to in evidence as a cancellation agreement whereby all disputes between plaintiff and defendant were settled including any disputes existing under the lease agreement mentioned in evidence, and if you further find that defendant performed all of his obligations under the terms of said cancellation agreement and if you further ■find that thereby plaintiff released defendant from all of defendant’s obligations under the said lease agreement, then your verdict must be in favor of defendant Strand-berg * * *.”

Specifically, plaintiff says that the instruction was deficient in that it did not require a finding that both parties intended to release all of their rights under the lease agreement. In support of that contention plaintiff relies on certain statements in the case of Chouteau v. Jupiter Iron-Works, 94 Mo. 388, 7 S.W. 467. That case, however, has no application here because it did not involve an agreement. It was a case in which an abandonment was sought to be established by the acts and conduct of the parties. In our research we find no authority to support a requirement that specific intent must be hypothesized in an instruction of this type. The jury was required to find the essential substantive facts, i. e., that the parties entered into an agreement whereby all disputes between them were settled. The element of the intent of each party is implicit in that finding. The parties could not legally be said to have entered into such an agreement unless they intended to do so.

We do not think the instruction was reversibly erroneous in failing to include a more detailed hypothesis of the factual elements involved. If plaintiff desired that the element of intent be specifically found by the jury it had the privilege and duty of offering an instruction for that purpose. That it did not do. The contention is overruled.

Instruction No. 4 submitted as a defense to the item of the deficiency from the sale of the vehicles ($6,430) the hypothesized breach of the contract by plaintiff in selling certain vehicles within 21 days without giving notice to defendant as to the highest cash offer received. As its final point plaintiff contends that the instruction was erroneous because it did not define the phrase “material breach.” We have concluded that the words involved are not technical but are ordinary words which are commonly understood and that no special definition was required. We note from an examination of Vol. 32, Mo.Dig., Words and Phrases, that no appellate court of this state has defined the phrase “material breach.” That fact could reasonably be considered as an indication that the courts have considered it unnecessary to define same. Furthermore, if plaintiff desired to have that phrase defined for the jury it should have offered an instruction for that purpose. Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., Mo.Sup., 338 S.W.2d 1 [11]. We rule this point contrary to plaintiff’s contention.

The judgment is affirmed.

All concur.


author: POPE, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASS’N, Petitioner, v. Elma B. RAMPY, Respondent.
    No. A-10643.
    Supreme Court of Texas.
    July 7, 1965.
    Rehearing Denied July 28, 1965.
    Ramey, Brelsford, Hull & Flock, Donald Carroll, Tyler, for petitioner.
    Hugh Reed, Jr., Fairfield, Gordon Well-born & Rex Houston, William W. McNeal, Henderson, for respondent.
   POPE, Justice.

Elma B. Rampy sued for and obtained a judgment for total and permanent disability and the Court of Civil Appeals affirmed. 386 S.W.2d 198. The trial court overruled defendant’s plea that this action was barred by res judicata. It is our opinion that the plea should have been sustained. Rampy while working for Mobile Well Service Company, sustained three heat strokes in three different counties between April 16 and May 31, 1962. The first stroke occurred on April 16 in Henderson County, the second about May 24 in Anderson County, and the third on May 31 in Freestone County. After each of the first two strokes Rampy was away from his work for about a week but received no medical attention. Following the third one, he was hospitalized and received medical attention.

We shall detail the proof that defendant offered on its plea of res judicata. Both Rampy and his employer filed notices of Rampy’s injuries after his 1962 heat episodes, but the notices stated conflicting dates and places of the injury. Rampy’s notice of injury described a heat stroke on May 24 in Freestone County. His employer’s report of injury showed it occurred on May 31 in Anderson County. The Industrial Accident Board asked for clarification of this confusion. Rampy then wrote the Board, “It was the 31st day of May instead of the 24th. I did get too hot on the 24th but did not go to a doctor at that time.” On July 13, Rampy sent an amended notice of injury which stated the date of injury was on or about April 16. He also described the other two heat strokes and asserted total and permanent disability. On July 31, Rampy mailed a second amended notice which stated that the first injury occurred on or about April 16, 1962 in Henderson County and the second injury occurred on or about May 31, 1962 in Anderson County. The description of the injury called attention to all three of the episodes and asked for total and permanent disability in these words:

“I worked approximately one week total after that time. I was wrenching rods on a rod job; I became too hot, suffered heat stroke or heat exhaustion, became disabled and missed the next several days of work; tried to work again for the same employer on two separate occasions, suffered heat exhaustion on each occasion; am now totally disabled and the disability is permanent.”

The Board then confirmed these dates by notifying all parties that their files showed “the date of injury is on or about April 16, 1962 and May 31, 1962.” It was upon that basis that the Board proceeded. After some delay in ruling, claimant’s counsel advised the Board by letter that it was relying upon the medical report of Dr. Axelsen and urged the Board to make its decision. That report reviews the history of the three episodes beginning in April and recurring on May 24 and May 31. The Board had before it the history and medical report of all three incidents. Rampy’s argument now is that only the first or Henderson County injury was considered by the Board. The whole record of the Board disputes the contention.

On November 30, 1962, the Board denied the claim for injuries which occurred “on or about 4-16-62 and 5-31-62.” The Board order did not undertake to identify the injuries by place of injury. Rampy appealed to the District Court of Henderson County and he too identified the injuries in his pleadings by using the same dates used in the Board’s order. He stated in his pleadings, however, that the May 31 injury occurred in Henderson County instead of Freestone County. The District Court on July 9, 1963 also denied all recovery “by reason of injuries sustained on or about April 16, 1962 and again on or about May 31, 1962.” Rampy did not appeal and the judgment became final.

Rampy then started over and on May 6, 1963 he filed two new claims with the Board. He asserted one claim for an injury sustained on May 3, 1962 in Henderson County and another claim for an injury sustained on May 26, 1962 in Freestone County. The Board denied both claims because it had “already entered a decision in the claim.” Rampy appealed to the District Court of Freestone County but pleaded three injuries sustained on May 3, May 26, and May 31. It was the May 31 episode for which the jury found that Rampy had suffered total and permanent incapacity and upon which the trial court granted judgment.

Defendant’s plea of res judicata should have been sustained because the Board and District Court of Henderson County had previously denied Rampy’s claim for injuries which occurred on May 31, 1962, and Rampy’s new claim was the identical one previously denied. The time, injury, disability, parties and causes are the same. Rampy’s May 31, 1962 injury was in issue before the Industrial Accident Board when it made its decision on November 30, 1962 and was also before the District Court of Henderson County when it rendered its judgment. Defendant won a final judgment on the merits and it was a bar to subsequent litigation of the same cause of action between the same parties as to all matters which were litigated or might have been litigated in the first action. Commonwealth of Massachusetts v. Davis, 1401 Tex. 398, 168 S.W.2d 216 (1943); Davis v. First National Bank of Waco, 139 Tex. 36, 161 S.W.2d 467 (1942), 144 A.L.R. 1; Cain v. Balcom, 130 Tex. 497, 109 S.W.2d 1044 (1937); Nichols v. Dibrell, 61 Tex. 539 (1884); Foster v. Wells, 4 Tex. 101 (1849).

If, as Rampy argues, the prior Board order and the judgment passed upon the first and second heat strokes but not the one that occurred on May 31, 1962; the prior judgment is still a bar. Ocean Accident & Guarantee Corporation v. Pruitt, 58 S.W.2d 41 (Tex.Com.App.1933) presented a similar situation. Pruitt suffered a heat stroke on August 29, 1928 in Harrison County. Two days later he had another stroke in Marion County. On September 5, he returned to work and worked all day. The next day he died. The claimants contended that the Board, in its denial of compensation, passed only upon the claim arising out of the first stroke in Harrison County and began anew with the Board by filing notice of injury for the stroke which occurred in Marion County, the last one. The court held that the Board’s decision on the claim arising out of the first stroke was a bar to the one that occurred two days later, saying:

“ * * * This is because the decision of a court of competent jurisdiction is conclusive, not only as to the subject-matter determined, but as to every other matter which the parties might have litigated in the case, and which they might have decided. In other words, the plea of res judicata applies not only to points upon which the court was actually required to pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, by exercising reasonable diligence, might have brought forward at the time. * * * It is clear that the board, as shown above, had potential jurisdiction of this entire matter, and had jurisdiction when it made its original order or award denying compensation to these claimants to have considered the cause of death and made an award based thereon, regardless of which injury produced it. It is further the rule that the final award of the board unappealed is entitled to the same faith and credit as a judgment of a court. There is therefore no escape from the conclusion that the award of November 14, 1928, made by the Accident Board denying these claimants compensation from this insurer on account of the death of Frank Pruitt was and is res judicata of this entire suit.”

The judgment of the District Court of Henderson County was a denial of Rampy’s claims for compensation arising out of all three heat episodes and was a bar to this action. The judgments of the trial court' and the Court of Civil Appeals are reversed and judgment is rendered that Elma B. Rampy take nothing.


text:
    FIREMAN’S FUND INDEMNITY COMPANY, A Corporation, Petitioner, v. BOYLE GENERAL TIRE COMPANY, Inc., Respondent.
    No. A-10396.
    Supreme Court of Texas.
    June 23, 1965.
    Rehearing Denied July 28, 1965.

      Jones, Boyd, Westbrook & Lovelace, L. Wayne Scott, Waco, for petitioner.
    Tom Moore, Jr., Waco, for respondent.
   POPE, Justice.

Boyle General Tire Company, Inc. sued and recovered judgment against Fireman’s Fund Indemnity Company for reformation of a fidelity bond and for $9,350.00 which two unfaithful employees took from plaintiff. The Court of Civil Appeals affirmed. 381 S.W.2d 937. Defendant, Fireman’s Fund, contends that (1) limitations and laches barred plaintiff’s suit for reformation and (2) Fireman’s Fund can not be charged with its agent’s misrepresentation or neglect which occurred when the agent was acting for a different principal. We affirm the judgments of the courts below.

Plaintiff, Boyle General Tire Company, during 1956 and 1957 was insured by a fidelity bond issued by Commercial Insurance Company of New Jersey. In December 1956 plaintiff purchased an additional business known as A-l Alignment Brake and Tire Company. In January 1957 E. C. Boyle, plaintiff’s president and sole owner, phoned E. C. Robinson, an insurance agent, and told him of the purchase and asked that Robinson include A-l’s employees in the bond. Robinson, as found by the jury, represented that he would do this, but he did not do it. When the bond with Commercial expired on December 19, 1957, Robinson, in the exercise of his own judgment, changed insurers and issued a renewal bond with Fireman’s Fund. That bond, like the one it replaced, did not include the employees of A-l. Boyle, upon receipt of the bond, placed it in his safe without reading it.

Plaintiff’s suit for reformation and damages was not barred by limitations. The jury found that two employees took $9,350.00 from A-l Alignment Brake and Tire Company and that Boyle first knew or should have known of the losses in November 1960. In October 1961 plaintiff filed suit against Fireman’s Fund for losses sustained between December 19, 1957, and the time of the discharge of the two employees in 1960 when plaintiff discovered the shortages. The original petition did not seek reformation. Boyle did not read the Fireman’s Fund policy until October 1962, almost five years after Robinson delivered it to Boyle. On November 5, 1963, plaintiff amended its petition and asked for reformation. From these dates, it appears that there was a five-year lapse between the time Robinson misrepresented that he would deliver a bond insuring A-l against its employees’ dishonest acts and the time Boyle discovered this was not done. Another year passed before plaintiff amended its petition and asked for reformation of the bond as well as damages. If limitations began to run at the time Fireman’s Fund delivered its policy to Boyle on December 19, 1957, plaintiff’s suit was barred. If, however, limitations began upon Boyle’s discovery of the losses in November 1960 or upon discovery that the bond did not cover A-l’s employees, the suit was not barred. The four-year limitation statute is applicable. Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 137 A.L.R. 263 (1941).

Essentially the question for decision is whether plaintiff was charged with knowledge of the bond’s limits of coverage at the time Robinson delivered the bond to Boyle in December 1957. The jury found that Robinson, the agent, represented that he would deliver a policy which covered the employees of A-l, that the representation was material, that Boyle believed it and relied upon it. The jury also found that Robinson, the agent, was negligent in omitting A-l from the 1957 bond; but that Boyle was neither negligent in failing to discover the omission earlier, in failing to read the policy, in relying upon Robinson’s representation, nor in signing the application for the 1957 policy in blank. The only issue answered favorably to defendant Fireman’s Fund was that Robinson did not conceal his failure to include A-l in the policy.

Since the jury found that Robinson represented that he would deliver a policy to Boyle that included A-l, that he was negligent in failing to include A-l’s employees, and plaintiff was free from negligence in discovering the omission; Fireman’s Fund must show that plaintiff was charged as a matter of law with knowledge of the contents of the policy he had in his safe continuously from December 1957. Fireman’s Fund argues that the insured was so charged under the principles of Wise v. Anderson, 163 Tex. 608, 359 S.W. 2d 876 (1962). The rule followed in Texas is that an insured who accepts a policy without dissent, is presumed to know its contents, but the presumption may be overcome by proof that “he did not know its contents when it was accepted, as by showing that when he received it he put it away without examination, or that he relied upon the knowledge of the insurer and supposed he had correctly drawn it.” Delaware Ins. Co. v. Hill, 127 S.W. 283, 286-287 (Tex.Civ.App.1910, writ ref.); 81 A.L.R.2d 66-71; 44 C.J.S. Insurance § 279. Plaintiff made that proof and overcame the presumption.

In Aetna Ins. Co. of Hartford, Conn. v. Brannon, 99 Tex. 391, 89 S.W. 1057, 2 L.R.A.,N.S., 548 (1905) the insurer issued a policy which insured products that were located in a building that was mistakenly described. The insurer stood on the policy which the insured had in his possession but had never read. The Court permitted a reformation saying, “The fact that plaintiff accepted the policy without noticing the mistake would not preclude him * * * from having the mistake corrected.” Accord, Kelley v. Ward, 94 Tex. 289, 60 S.W. 311, 313 (1901); Cran-fill-Reynolds Co. v. Security Ins. Co., 67 S.W.2d 258, 261 (Tex.Com.App.1934). The prevailing view is summarized in 4 Apple-man, Insurance Law and Practice, 858, § 2913 (1941):

“ * * * The majority view apparently permits the insured to rely upon the thought that the oral intention of the parties was expressed in the written contract, and does not require him to examine the policy. Those cases permit recovery, as an examination of their facts will show, though the suit for reformation is not brought for several months, and perhaps even several years, after the policy was delivered. The minority view requires that the insured act diligently in examining the policy and notify the insurer if the contract is not satisfactory, and holds reformation to be barred by the insured’s own laches if he fails so to do. The latter view is certainly the more logical, but it is decidedly questionable whether the average layman who is insured would ever comply with such a legal duty.”

Plaintiff’s suit for reformation was not barred by laches. Here, too, all jury findings favored the plaintiff. The jury found that the time between Boyle’s discovery in November 1960 of the thefts by the employees and the date of his demand upon Robinson, the agent, was not unreasonable. It also found that the lapse between the date Boyle knew or should have known of Robinson’s failure to include A-l in the bond and the time plaintiff sued for reformation was not unreasonable. There was no finding and there is no proof that plaintiff’s delay in any way worked an injury upon Fireman’s Fund. The briefs point to none. When Boyle discovered the defalcation, he immediately notified Fireman’s Fund. One month later in December 1960, when the policy expired, Fireman’s Fund issued a renewal policy that correctly included A— 1. Nothing indicates that Fireman’s Fund would have refused to supply the coverage if it had learned of the omission at an earlier time. If the delay resulted in any injury, we are uninformed of the nature of that injury. Gulf, Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 332 S.W.2d 492, 500 (1958); Turner v. Hunt, 131 Tex. 492, 116 S.W.2d 688, 117 A.L.R. 1066 (1938); 30 C.J.S. Equity §§ 112, 116.

Fireman’s Fund urges that Robinson, as a matter of law, was not its agent. Its first reason assigned is that Robinson was acting for plaintiff and was its agent. The proof was that Fireman’s Fund supplied Robinson with blank Fireman’s Fund policies which bore the printed signatures of the company president and secretary. When plaintiff received its policy from Fireman’s Fund, Robinson handled the-transaction by signing the policy, delivering it to plaintiff and collecting the premium. These circumstances support the findings that Robinson was agent for Fireman’s Fund. They are the same as those discussed in National Guaranty Fire Ins. Co. v. King, 24 S.W.2d 501 (Tex.Civ.App. 1930, writ ref.).

A more serious challenge to Robinson’s ageney is the point that he was acting for Commercial Insurance Company, not Fireman’s Fund, in January 1957, the time of his original misrepresentation and neglect. At that time, Fireman’s Fund was not the principal; Commercial Insurance was. It was not until December 19, 1957, that Robinson, in the exercise of his own judgment, changed the insurer from Commercial Insurance to Fireman’s Fund. Robinson for several years had handled all of the insurance for Boyle individually and for his business. At any time he would have as many as twenty different policies covering Boyle, Boyle General Tire and A-l. When Boyle asked that a particular risk be insured, Robinson would select the insurer, would “automatically” renew the policy, and would sometimes place the insurance with a different insurer upon renewal. He did this when the Commercial Insurance Company’s bond came up for renewal on December 19, 1957. Instead of renewing the bond with Commercial Insurance Company, one of his principals, he changed to Fireman’s Fund, another of his principals. The renewal bond with Fireman’s Fund was for a term of three years during which time the shortages in A — l’s funds occurred. The renewal bond, like the one it replaced, omitted A-l’s employees from the risk coverage.

Fireman’s Fund is bound by the misrepresentation of its agent made in January 1957 though it did not write its policy for Boyle until December 1957. The Supreme Court in Wellington Oil Co. of Delaware v. Maffi, 136 Tex. 201, 150 S.W.2d 60 (1941), held that an agent could bind his principal though the agent’s knowledge of the material facts was gained prior to the creation of the principal-agent relationship. The court recognized the general rule that a principal is unaffected by the knowledge of an agent unless such knowledge came to the agent while he was transacting the business of his principal, Taylor v. Taylor, 88 Tex. 47, 29 S.W. 1057 (1895); but the court then stated an exception which is recognized by § 276 of the Restatement of the Law of Agency and also by Texas decisions. That section provides:

“Except for knowledge acquired confidentially, the time, place, or manner in which knowledge is acquired by a servant or other agent is immaterial in determining the liability of his principal because of it.” * * *
“ * * * Since the mind of the agent cannot be divided into compartments, the principal should be bound by whatever knowledge the agent has, irrespective of its source or time of acquisition, unless it is the kind of knowledge which the agent can properly disregard in the specific case because of having acquired it confidentially.” Restatement of Agency 2d, § 276, Comment A (1958).

American Surety Co. of New York v. Fenner, 133 Tex. 37, 125 S.W.2d 258 (1939), applied the rule. The surety company paid a bank its losses occasioned by the dishonesty of one of its bank clerks. It then sued a stock brokerage firm to recover the funds, because its agents knew that the investor had dishonestly taken the funds from the bank. The brokerage firm’s defense was that it could not be charged with knowledge that its local agents had obtained before they began working for the firm. The knowledge of the local agents was imputed to the principal though they acquired the knowledge before the principal-agent relationship arose. Accord, National Fire Ins. Co. of Hartford v. Carter, 257 S.W. 531 (Tex.Com.App.1924); General Bonding & Casualty Ins. Co. v. Beckville Independent School Dist., 156 S.W. 1161 (Tex.Civ.App.1913, writ ref.); Fire Ass’n of Philadelphia v. LaGrange & Lockhart Compress Co., 50 Tex.Civ.App. 172, 109 S.W. 1134 (1908, writ ref.); In re Distilled Spirits, 11 Wall. 356, 20 L.Ed. 167 (1870); 3 C.J.S. Agency § 274.

The cases discussed and cited above generally concern the extent to which knowledge of an agent, acquired prior to the creation of the agency, will be imputed to the principal. More closely in point are the cases in which an insurance agent’s mistake or fraud occurred before the agent transacted the business of the principal. Such fraud or mistake has usually been imputed to the principal whether the renewal policy was issued through the same agent with a different company, Phoenix Fire Ins. Co. v. Hoffheimer, 46 Miss. 645 (1872); Aiken Petroleum Co. v. National Petroleum Underwriters of Western Millers Mut. Fire Ins. Co., 207 S.C. 236, 36 S.E.2d 380 (1945), or the renewal policy was issued with the same company but through a different agent. Bickford v. Aetna Ins. Co., 101 Me. 124, 63 A. 552 (1906); Martin v. American Ins. Co., 198 Wis. 214, 223 N.W. 437 (1929); 91 A.L.R.2d 546, 563-567. But see Lumbermen’s Ins. Co. v. Heiner, 74 Ariz. 152, 245 P.2d 415 (1952); Glaser v. Alexander, 247 Minn. 130, 76 N.W.2d 682 (1956).

In Phoenix Ins. Co. v. Hoffheimer, supra, Fairchild, as agent for Aetna Insurance Company correctly issued a fire policy in September 1865. When it expired on February 19, 1866, Fairchild renewed the policy but changed the insurer to Phoenix Insurance Company, which was one of several companies he represented. The renewal policy incorrectly stated the name of the insured and after a fire the insured sued to reform. Phoenix’ defense was that the Company did not know the correct name of the insured. The court granted the prayer for reformation and recovery because the knowledge of the agent, gained at the time of the first policy with a different company, was imputed to Phoenix.

Aiken Petroleum Co. v. National Petroleum Underwriters, etc., supra, is even more convincing. Insured dealt with Perry Moses who was agent for a number of insurance companies. Insured specifically demanded a policy without a co-insürance clause. The agent placed the policy with one of his principals in 1937 and renewed the policy in 1938 and 1939 with the same company. Those policies complied with the insured’s requirements. In 1940 the same agent placed the insurance with Western Millers, whom it also represented and which company had taken over the former insurer’s business. That policy, as well as its renewal in 1941, again respected the insured’s wishes. The 1942 and 1943 renewals with Western Millers, unknown to the insured, included the co-insurance clause, which the insured asserted was a fraud upon him, and he sought a reformation of the policy after a fire occurred. A jury found that the agent in 1937 had represented that the policy and any future policies he wrote would exclude a co-insurance clause, that the agent at the time of his change of companies had in mind the assurances he had earlier given the insured, and that the change in the policy was the result of fraud and mistake. The court held that knowledge of an agent acquired before the existence of the agency may be chargeable to the principal if it be clearly shown by the evidence that the agent had in fact retained the previously acquired information in his mind and memory while engaged in a subsequent transaction on behalf of his principal.

The case most similar to the instant one is Commercial Standard Ins. Co. v. Paul, 35 Tenn.App. 394, 245 S.W.2d 775 (1951). In 1947 J. M. Kemp issued an automobile liability policy which mistakenly named the insured. The policy was with Car & General Insurance Corporation. The renewal policy in December 1947 was with a different insurer, the Commercial Standard Insurance Company. It carried forward the earlier mistake. In 1948 another renewal policy was issued, again with Commercial Standard, and for the third time the insured’s name was incorrect. In a declaratory judgment action, the court held that the subsequent insurer was charged with the earlier mistake of its agent. The court posed the question and gave its answer in these words:

“It is urged that the knowledge previously acquired by Kemp in 1947 and prior thereto, while acting for another principal, would not subsequently be imputed to complainant when its policy was issued as a renewal by said agent.
“ * * * All Mrs. Paul and her daughter wanted was protection, and they appeared to have relied completely upon Mr. Kemp’s judgment on matters pertaining to insurance. In 1947 when the renewal policy was issued in complainant company, Mrs. Paul was not told by Mr. Kemp of the change in companies and no additional information was requested of her. It is apparent that when the agent issued the renewal policy with complainant, he used the information previously acquired while representing the Car & General Insurance Corporation, Ltd. Under these circumstances we think that the knowledge, though previously acquired by the agent, would be imputable to complainant.”

Fireman’s Fund also says that plaintiff failed to do equity because it did not plead nor prove that it had tendered the difference in premiums which coverage of A-l would have required. The difference for the three-year premium was $220.42. Plaintiff generally pleaded “that all premiums, covenants and conditions of said bond have been fully complied with. * * * ” Defendant did not specially except and did not specially deny plaintiff’s pleadings. Rule 54, Texas Rules of Civil Procedure authorizes plaintiff to plead “generally that all conditions precedent have been performed or have occurred.” The rule requires the plaintiff to prove only those conditions precedent that are specially denied. The case was tried upon the issues discussed in this opinion. The matter of premiums came into the record incidentally, and to show that Robinson, the agent, would have been eager to include A-l as an additional insured if he had been asked to do so, because the additional coverage would have entitled him to a larger commission. As tried, the issue of doing equity was not before the trial court. 2 McDonald, Texas Civil Practice, § 6.14. Plaintiff’s judgment should, however, be reduced by the amount of premiums he would have paid under the reformed policy.

The judgments of the courts below are reformed by crediting the judgment with the sum of $220.42, and as reformed, are affirmed.

GRIFFIN, J., dissenting.


author: ARCHER, Chief Justice.

text:
    ROYAL INDEMNITY COMPANY, Appellant, v. H. E. ABBOTT & SONS, INC., Appellee.
    No. 11321.
    Court of Civil Appeals of Texas. Austin.
    June 23, 1965.
    Rehearing Denied July 14, 1965.
    Upton, Upton, Griffis, Shannon & Porter, James D. Johnson, San Angelo, for appellant.
    Blanks, Thigpin, Logan, Steib & Lewis, S. Ancial Middlebrook, San Angelo, for appellee.
   ARCHER, Chief Justice.

This was an action on an automobile liability insurance policy brought by appellee, a building owner, directly against appellant insurance company to recover for damages to appellee’s building inflicted by one alleged to have been operating the insured pickup truck with the implied permission of the named insured so as to be an omnibus insured under the policy. Trial to a jury resulted in a jury finding of implied permission and a judgment for appellee from which this appeal has been taken.

The points relied upon for reversal of this ease are:

“FIRST POINT: The court erred in submitting special issue No. 1 to the jury over appellant’s timely objection that there was no evidence to support said issue, which read as follows:
‘Do you find from a preponderance of the evidence that when George Kenneth Landers was operating the vehicle belonging to Jack Herring on or about July 27, 1963, he, the said George Kenneth Landers, did so with the implied permission of the said Jack Herring?
Answer: Yes or No.
Answer: -’
SECOND POINT: The court erred in rendering judgment for appellee on the verdict for the reason that the evidence is insufficient to support the jury’s finding that the vehicle was used with the implied permission of its owner at the time of the collision.
THIRD POINT: The court erred in admitting the testimony of the witness, George Kenneth Landers, to the effect that he did not think he was stealing the truck when he drove it off, over appellant’s timely objection that said testimony was a conclusion of the witness, was conjectural and invaded the province of the jury.
FOURTH POINT: The court erred in admitting the testimony of the witness, George Kenneth Landers, as to whether or not he thought he had permission to drive the vehicle in question under a hypothetical set of facts stated by counsel, over appellant’s timely objection that the testimony was a conclusion of the witness, invaded the province of the jury and was based on a hypothetical state of' facts, none of which were in evidence and amounted to a statement of the mental processes of the witness as to what he thought about a particular situation rather than something he said or did.”

Jack Herring employed Landers as a ranch hand on Herring’s ranch about 14 miles from Ballinger, Texas, at $135.00 a month plus room and board, and for a time Landers did his own cooking and lived in a small house near the ranch house and later began taking his meals with the family.

Herring owned three motor vehicles, a passenger car, a 1961 pickup and a 1955 pickup, the latter was not licensed and was for use on the ranch premises, and Herring ordinarily used the 1961 truck. Landers had permission to drive the 1955 truck, and if it was out of repair could use the 1961 truck on the ranch which was parked behind the ranch house when not in use and the 1955 model was usually left around the barn, and the keys to both vehicles were customarily left in them. Herring had ascertained that Landers had a driver’s license before his employment.

Prior to the date of the accident Landers had not, to Herring’s knowledge, taken any of the vehicles off the premises except on three or four occasions. When told to do so Landers had picked up the Herring children at the school bus stop about four or six miles from the house, partly over a private road and a part over a public highway.

On Saturday afternoon, July 27, 1963, the date of the accident Herring and Land-ers had gone to Bronte to the races and Herring did the driving and returned at about 4:00 p. m. Later in the evening the Herring family went to Big Spring to spend the night with friends.

About 7:00 p. m. Landers took the 1961 truck and went to San Angelo where he collided with appellee’s building.

Herring learned of the accident and threatened to “beat the stuffing” out of Landers and might file charges against him, but finally told Landers “If he would do right about it and work it out, well he could stay.” Landers did stay for about nine months and did pay for the repairs on the truck in the sum of $400.00.

The subject of Landers using the vehicles off of the ranch did not come up and Herring had never expressly instructed Land-ers to use the vehicles off the ranch, and had never, before the collision, expressly forbidden Landers to use the 1961 truck.

This is a case of no evidence to support a submission of the question of implied permission to the jury.

It is further contended by appellant that the evidence is insufficient to support the finding of the jury, and the judgment rendered on the verdict is erroneous.

We must consider the evidence and the inferences to be properly drawn therefrom in the light most favorable to the party for whom the verdict and judgment was favorably entered, and accept the verity of the testimony tending to support the verdict. Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208; O’Hara v. Ferguson Mack Truck Co., Inc., Tex.Civ.App., 373 S.W.2d 507, er. ref., n. r. e.; State & County Mutual Fire Insurance Company v. Kinner, Tex.Civ.App., 314 S.W.2d 871, aff’d., 319 S.W.2d 297.

Express permission is not necessary in order for a driver of a non-owned vehicle to be covered; such permission may be implied. Employers Mutual Casualty Company of Des Moines v. Mosqueda, 317 F.2d 609 (5th Cir. 1963); 7 Appleman Ins. Law and Proc., § 4365 at page 303; 45 C.J.S. Insurance § 829, p. 884.

“Implied Permission is actual permission circumstantially proved.” Stoll v. Hawkeye Cas. Co. of Des Moines, Iowa, 193 F.2d 255 (8th Cir. 1952).

Facts creating an implied permission invariably must be proved by circumstantial evidence, inasmuch as little or no direct evidence can ever be produced.

We then examine all of the facts as developed in the trial court in the light of the above definitions to determine whether implied permission was shown.

In view of the conduct of the parties there was more than a mere employer-employee relationship between Herring and Landers. Landers was allowed privileges in the ranch home, when Mrs. Herring was away during the day Landers could fix his dinner, which he did lots of times. Herring testified:

“Q Mr. Herring, on Saturday, July 27th, 1963 when you and Mr. Landers went to Bronte, did you have any particular reason for going over there?
A Went to the horse races.
Q Had you done that before?
Yes, sir. >
On Saturday at the ranch did you ordinarily work or what was the situation? ©
Well, not unless there was something that needed to be done say fairly bad, or if it didn’t make any difference, well, we’d put it off until Monday.
Now, did I understand you to say that Mr. Landers after a time, at least, took most of his meals in the house with you and your family ? a
Yes, sir. >
Did he actually have the run of your house? ©
Well, in fact, about the meals, maybe my wife was gone, and we have a little girl that has cerebral palsy, my wife takes her to Abilene three times a week, and she is always late coming in for dinner, and lots of times when Ken had time he’d come in and fix it himself, so I’d say he did have privileges in the house.
When you left to go to Big Spring on this particular Saturday you took your family with you? a
Yes, sir.
Q Did you have any conversation with Mr. Landers prior to leaving about what he was going to do or about using the pickup ?
A No; he was supposed to have had a girl friend in Abilene that was supposed to come and see him that night and take him to San Angelo. I mean they were going to San Angelo, she had a car, and that’s all I knew about what they might be doing. Of course, the next day was Sunday, no work or anything, and I was coming in the next day anyhow; so as far as telling him to do anything, I didn’t, that afternoon.
Q And Sunday was ordinarily a day off also?
A Yes, sir.
Q Now, was the pickup that he actually went to town in your 1961 pickup ?
A Yes, sir.
Q He didn’t go in that old one?
A No, sir.
Q And as you previously testified your arrangement with him was that generally for doing his work on the ranch premises he used the old pickup?
A Yes, sir.
Q Except that if it wouldn’t run and you weren’t using the 1961 pickup then he would use it on the ranch?
A That’s correct.”

The vehicles were available to Landers with the keys in them so he could use the 1961 pickup if the need arose.

In Truck Insurance Exchange v. Ballard, Tex.Civ.App., 343 S.W.2d 953, er. ref., n. r. e., this Court discussed the question of implied permission.

The appellant cites Kitchenmaster v. Mut. Auto. Ins. Co. of Herman, 248 Wis. 554, 22 N.W.2d 479 as being in point.

In Kitchenmaster the driver of the car did not have a driver’s license and it cannot be thought that the owner of a car would have permitted an unlicensed driver to drive on public highways.

The fact that Herring, after the accident, continued the employment of Landers and never expressly prohibited Landers from using the vehicles is a circumstance of implied permission that could be considered.

In United States Fidelity & Guaranty Co. v. Brann, 297 Ky. 381, 180 S.W.2d 102, cited by appellant, both the driver and the owner of the automobile testified that the driver had no permission to drive the automobile.

We believe the evidence was sufficient to raise the issue of implied permission and to base a judgment on.

Appellant’s points Nos. 3 and 4 are directed to the error of the court in admitting the testimony of Landers to the effect that he did not think he was stealing the truck, and as to whether he thought he had permission to drive the truck.

The testimony complained of is:

“Q Well, you didn’t think you were stealing the truck, did you, when you drove off?—
MR. JOHNSON: May it please the Court, I will object to that question as calling for a conclusion of the witness, conjectural, invades the province of the jury.
THE COURT: I will overrule the objection.
MR. STEIB: The question was (reading) :
Q Well, you didn’t think you were stealing the truck, did you, when you drove off?
A No, sir.
Q Mr. Landers, what arrangement do you have with Mr. Herring, let’s say you are out there working on the ranch and you need a shot of penicillin for some of the livestock and Mr. Herring isn’t around, do you think you have got permission to drive that vehicle and get that penicillin ?
MR. JOHNSON: May it please the court, I will object to that question as well as the two following it, for the reason that all of them ask for conclusions of the witness, invades the province of the jury; they are based upon a hypothetical state of facts, none of which are in evidence in this case; they call for, again, the mental processes of what the witness thought about a situation rather than some material facts as to something he said or did, and are all improper.
MR. STEIB: Now, the last question on Page 14, I don’t think there is an answer to it, it was withdrawn, and I agree that reading of the question would not be indicated, I don’t intend to read it.
THE COURT: Overrule the objection to the question read.
MR. STEIB: All right. The answer to that question was (reading) :
A Well, I don’t know. If I thought they needed it I’d go get it.”

We do not believe the court erred in admitting the above testimony. As a general rule a witness may testify as to his own intention or other state of mind where the same is material. 2 McCormick & Ray, Texas Law of Evidence, § 1428; 23 Tex.Jur.2d Evidence, § 504.

The witness was asked as to his intent at the time he took the truck, — did he intend to steal it; this was not an ultimate issue of fact, other considerations were necessary before implied permission could be found by the jury and the jury could have found, even though it believed that Landers did not intend to steal the truck, could have found no implied permission, such testimony is not conclusive. Reed v. Reed, 303 S.W.2d 460, rev’d. on other grounds, 158 Tex. 298, 311 S.W.2d 628.

The witness’ own idea of what he had authority to do in a particular instance was not an ultimate fact, but rather a part of the surrounding circumstances tending to support a finding of implied permission. Universal Underwriters Lloyds v. Sulik, Tex.Civ.App., 301 S.W.2d 690, er. ref., n. r. e.

The judgment of the trial court is affirmed.


author: BATEMAN, Justice.

text:
    PARKWAY LUMBER COMPANY, Appellant, v. CITY OF MESQUITE, Appellee.
    No. 16574.
    Court of Civil Appeals of Texas. Dallas.
    June 18, 1965.

      Jack C. Morgan, Kaufman, for appellant.
    Saner, Jack, Sallinger & Nichols, H. Louis Nichols, Dallas, for appellee.
   BATEMAN, Justice.

The appellee City of Mesquite, Texas, sued for and obtained a permanent injunction restraining appellant Parkway Lumber Company from unloading, stacking and storing lumber or scraps thereof on the right-of-way of Military Parkway, a public street in Mesquite. This right-of-way consists of a strip SO feet wide and 350 feet long. It was conveyed to the County of Dallas by warranty deed dated July 29, 1950. The area having been annexed by the City of Mesquite in 1960, Dallas County conveyed the strip to the City by deed dated August 10, 1964. A portion of the strip is paved.

The appellant, occupying land abutting the right-of-way, was shown to have graveled a portion of the right-of-way between the land occupied by it and the paved portion of the street, and -to have used this portion almost continuously as a place where its incoming shipments of lumber were unloaded and left stacked temporarily. It was also shown that this encroachment existed most of the time.

Appellant contends that, being in lawful possession of abutting land, it has the legal right to use the right-of-way in any manner it sees fit so long as such use does not interfere with the use of the street by the public. It proved by several witnesses that there has been no such interference, although the City Fire Marshal testified that the lumber stacked in the right-of-way would interfere with the fire department’s ability to fight a fire on appellant’s property.

We do not agree with appellant that a lawful occupant of abutting land has the legal right to determine for himself what portion of a public right-of-way is not necessary to the public’s use and appropriate that portion to his own business use. We hold that no such right exists. If each abutting freeholder had and exercised such a right on all of the streets and highways, the public would be faced with an intolerable situation. Dozier v. City of Austin, Tex.Civ.App., 253 S.W. 554, wr. dism.; 28 Tex.Jur.2d, Highways and Streets, § 185, p. 217.

The City was entitled to the injunction granted. City of Wichita Falls v. Bowen, 143 Tex. 45, 182 S.W.2d 695, 698, 154 A.L.R. 1434; Greene v. City of San Antonio, Tex.Civ.App., 178 S.W. 6, wr. ref.; West v. City of Waco, 116 Tex. 472, 294 S.W. 832 ; 28 Tex.Jur.2d, Highways and Streets, § 146, p. 178.

Affirmed.


author: WILLIAMS, Justice.

text:
    The NORTH AMERICA LIFE INSURANCE COMPANY, Appellant, v. Albert L. WILBURN et ux., Appellees.
    No. 16567.
    Court of Civil Appeals of Texas. Dallas.
    May 28, 1965.
    Rehearing Denied June 25, 1965.

      Peter Maniscalco, Houston, Fowler Roberts, Dallas, for appellant.
    Edward M. Snyder, Jr., Dallas, for ap-pellees.
   WILLIAMS, Justice.

Appeal from an order overruling appellant’s plea of privilege. Appellees, Albert L. Wilburn and wife Lennie W. Wilburn, brought this action in the District Court of Dallas County, Texas, against appellant, North America Life Insurance Company, alleging that appellees were approached at their home in Dallas County, Texas, by persons representing appellant insurance company and that such representatives, pursuant to solicitations and representations, induced appellees to purchase a number of annuity contracts for a premium of $280 each, it having been represented to appellees that the sum of $280 would be the total amount that they would be obligated to pay on such contracts. Appellees alleged that they relied upon the representations which proved to be false, to their damage in the sum of $1,680. They asked judgment for actual and exemplary damages. Appellant filed its plea of privilege to be sued in Fort Bend County and appel-lees responded with their controverting affidavit wherein they asserted that venue in Dallas County was proper under Subdivision 7, Article 1995, Vernon’s Ann.Civ.St., relating to fraud committed in the county where the suit was instituted. Following a nonjury trial the trial judge overruled appellant’s plea of privilege. Appellant assails this judgment in three points of error: (1) that appellees had failed to prove misrepresentations which would constitute actionable fraud; (2) that appellees had failed to prove that they had suffered any damage, same being a requisite element of fraud; and (3) that appellees had failed to bring themselves within the exception to the venue statute and therefore the trial court should have transferred the case to Fort Bend County.

The case was submitted to the court, without a jury, and no findings of fact or conclusions of law were requested and none were filed by the trial court. Therefore, the presumption exists that the court found all fact issues raised by the evidence in a manner to support the judgment rendered. Our appellate review requires us to examine the evidence in the light most favorable to appellees and to indulge every reasonable inference in favor of the judgment. If there is any evidence to support the court’s judgment the same will not be disturbed by us. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609; James v. Drye, 159 Tex. 321, 320 S.W.2d 319; United States Fidelity & Guaranty Co. v. Texas Bank & Trust Co. of Dallas, Civ.App., 380 S.W.2d 900.

Our review of the record, in the light of the foregoing rules, reveals that there is evidence of probative force to support the implied findings of the trial court concerning the various elements of actionable fraud committed against appellees in Dallas County, Texas.

It is uncontroverted tha* the representations which are made the basis of appellees’ claim of fraud were made in Dallas County, Texas.

Appellant contends that the representations allegedly made by its representatives to appellees were not as to any past or existing facts but amounted to promises to do something in the future and therefore could not constitute fraud, as a matter of law. 25 Tex.Jur.2d, § 44, pp. 682-683; Texas Star Flour Mills v. Victoria Wholesale Grocery, Inc., Civ.App., 115 S.W.2d 500; Powell v. Goldsmith et al., Civ.App., 164 S.W.2d 45. We cannot agree with appellant that this case falls within the rule announced by the authorities cited.

An examination of the record reveals that Lennie W. Wilburn, one of the ap-pellees, testified that the representatives of appellant first approached ’ her and her husband in April 1963 and told them that since they had previously purchased a contract from this same company in 1960 that they were then entitled to buy the new contract. It was also represented to them that they would only have to make one payment on these new contracts, namely, $280.

“Q. Did you or did you not question him as to whether or not there would be more than one payment on those contracts ?
“A. Sure, we questioned him.
“Q. Did you do it once or many times ?
“A. Several times.
“Q. And what was his reply to those questions?
“A. Well, ‘That is all you have to pay. Without your first contract you couldn’t get this. This is too good to be true. We could sell these to the people that had the first one and only to them.’ ”

On cross-examination she testified:

“Q. Will you tell me the circumstances under which you signed it, then.” (Relating to the signing of the note.)
“A. I cannot. The only thing I can tell you is that he — I will just have to repeat that over and over — He said I would only have to pay $280.00 down.
“Q. I understand that, hut the man said more than that to you, didn’t he —He didn’t keep saying that over and over, did he?
“A. He said it was too good to miss — You would have to take it. You have bought the first contract— bought the first contract in 1960 — and without that contract you couldn’t get these good ones.”

She then testified that after she received the new contracts she compared them with the one they had previously purchased in 1960 and found that they were identical, and not different, as represented. In this connection she testified:

“Q. Did you have occasion to compare the contract that you bought in 1960 to the contract that you received in 1963?
“A. Whenever those contracts came I looked at them and I told my husband, I said, ‘Something must be wrong, because these are exactly like the first one we got.’ and he said, ‘Surely, they told the truth.’
“Q. So that the contracts you bought in ’63 was exactly the same contract that you bought in 1960?
“A. Exactly right.
“Q. All right, and the contract that you bought in 1960, on that contract, you had to make annual payments of some amount of money, is that right?
“A. Right. We were told that when we bought the one in 1960.”

With reference to representations concerning the single payment, she testified in part:

“A. The agent said I would only have to pay $280.00 down and the contract lien would pay it out within 20 years, that Mr. Miller called them together and told them that.
“Q. The contract of lien would be paid out in 20 years?
“A. It would pay itself out, and what he meant by that, I do not know.
“Q. You didn’t ask him?
“A. Well, yes, I asked him, but I can’t recall all of the things that he said. He talked so fast you couldn’t even keep up with him.”

Mrs. Wilburn said that the representatives of appellant repeatedly told her and her husband that there would be no further payments other than the $280 on each contract purchased; that she did not read the instrument which she was asked to sign by the representatives since she relied upon them to tell her the truth. About one year after the receipt of the contracts she and her husband received a statement from the appellant insurance company asking them to pay additional sums which were due and payable on the contracts. At that time appellees wrote to the appellant and, claiming that the transactions had been misrepresented to them, demanded a refund of the $1,680 that had been paid; and, the appellant having failed to comply with their request, they filed this suit.

In essence, the record reveals evidence of (1) the representation of fact that by virtue of appellees having previously purchased another and different contract in 1960 they could now purchase these new contracts for only $280 total payment for each and (2) that regardless of prior contractual status the total present payment for the new contracts was $280 each. Contrary to appellant’s contention, each of these representations relates to either past or existing facts. Appellees say the representations proved to he false. Appellees say they relied upon these representations and would not have paid the consideration demanded if they had known otherwise.

In this state of the record, and viewing it only as to the question of venue, we deem the evidence to be sufficient to support the court’s implied findings.

We had occasion to discuss and pass upon the character and quality of proof in fraudulent representation cases in Blanton v. Sherman Compress Co., Civ.App., 256 S.W.2d 884, which was a venue action involving Subdivision 7 of Art. 1995, V.A. C.S. There appellant had allegedly represented falsely that the president of appellee corporation had authorized the corporation to give preferential rates of charge to appellant. Chief Justice Dixon said, quoting from Ten-Cate v. First National Bank, Civ.App., 52 S.W.2d 323:

“Fraud is deducible from artifice and concealment as well as from affirmative conduct of a character to deceive. In 25 Corpus Juris, p. 1066, under title of ‘Fraud,’ it is said: ‘ * * * The plainest case of false representation is the telling of a deliberate and intentional lie. * * * But a representation need not be a direct lie in order to constitute remedial fraud; the false representation may consist in a deceptive answer, or any other indirect but misleading language.’ ”

As to the question of intent, we said:

“We are aware that in Texas intent is not ordinarily an essential element in fraud. * * * Intent, being a state of mind, is often difficult to prove. It has been said that a person’s state of mind cannot be proved by direct evidence from others. But this does not render the matter incapable of proof. The presence or absence of a certain state of mind may be proven by circumstances.”

Discussing the problem of proof the Chief Justice said:

“ ‘Whenever issues of * * * fraud, and of good faith are raised, the evidence must take a rather wide range and may embrace all the facts and circumstances which go to make up the transaction, disclose its true character, explain the acts of the parties, and throw light on their objects and intentions.’ [20 Am.Jur. 320].”

See also Dallas Joint Stock Land Bank v. Lancaster, Civ.App., 91 S.W.2d 890; Corrigan v. Shell Petroleum Corporation, Civ.App., 62 S.W.2d 663; Chandler v. Butler, Civ.App., 284 S.W.2d 388.

The evidence, both direct and circumstantial, is amply sufficient to establish that appellant’s representatives made false and misleading statements of fact to appel-lees and that they relied upon them to their damage.

Appellant earnestly contends, in its second point, that appellees failed to establish their damages and that such is an essential element of an action for fraud.

While there is some conflict among the authorities on the question of the proof necessary to sustain venue in the county where the fraud is alleged to have occurred, we think a correct statement of the rule is found in Trinity Universal Insurance Co. et al. v. Soliz, Civ.App., 241 S.W.2d 625, as follows:

“In order to sustain venue under Section 7, Art. 1995, V.R.S. it is necessary that all of the constituting elements of fraud must appear. These are (1) A false representation made by defendant; (2) the reliance thereon by the plaintiff; (3) action in reliance thereon by the plaintiff; and (4) damage to the plaintiff resulting from such fraud or misrepresentation.” (Citing cases.)

See also Texas Employers Ins. Ass’n v. McDaniel, Civ.App., 286 S.W.2d 465, and Clark on “Venue in Civil Actions in Texas,” Chapter 7, pp. 54-55.

However, it is not necessary in this venue hearing that appellees should establish the exact amount of their damages suffered because of the fraud. True, they did have to establish some damage as part of their cause of action but the exact amount need not be proved. In Cockburn v. Less, Civ.App., 257 S.W.2d 470, this court, speaking through Mr. Justice Cram-er, said:

“Appellant also asserts that the extent of the damage must be proved. We cannot agree with this contention. The court had jurisdiction over the amount involved in the pleadings. No plea in abatement asserting the amount alleged had been fraudulently alleged to confer jurisdiction on the trial court was filed. The venue fact was whether actual damage had been suffered, not the exact amount thereof.”

See also Campbell v. McCown, Civ.App., 176 S.W.2d 226; Maulding v. Niemeyer, Civ.App., 241 S.W.2d 733; First Nat’l Bank of San Angelo, Texas v. Hill & Combs, Civ.App., 177 S.W.2d 75; 60 Tex.Jur.2d, § 218, p. 105.

An examination of the record reveals that appellees’ suit was for an amount within the jurisdiction of the district court and no plea in abatement was levelled against such allegations as being fraudulent. Moreover, Mrs. Wilburn testified that she executed and delivered to appellant several checks in the sum of $280 each, amounting to $1,680, said checks being cashed by appellant. Appellees demanded of appellant to return the money and such demand was refused. We think this was ample evidence to support the trial court’s implied findings of damages.

Finding no reversible error appellant’s points are overruled and the judgment of the trial court is affirmed.

Affirmed.