author: RICHARDS, Justice.

text:
    Ross Sterling KELLY, a Minor, by and through his Next Friend, E. H. Kelly, Appellant, v. INDUSTRIAL ACCIDENT BOARD of Texas et al., Appellees.
    No. 10984.
    Court of Civil Appeals of Texas. Austin.
    June 20, 1962.
    Rehearing Denied July 11, 1962.
    Dunnam, Dunnam & Dunnam, Waco, for appellant.
    Will Wilson, Atty. Gen., W. O. Shultz and Pat Bailey, Asst. Attys. Gen., Austin, for appellees.
   RICHARDS, Justice.

Ross Sterling Kelly, appellant, a minor, by his next friend E. H. Kelly, filed his petition in the 53rd Judicial District Court of Travis County, Texas, seeking the issuance of a writ of mandamus ordering and directing the Industrial Accident Board of Texas, and J. Overby Smith, Walter Buckner and Leonard Carlton, its members, ap-pellees, to set for hearing immediately or within a reasonable time the claim of appellant for compensation under the Workmen’s Compensation Act and to hear and render a final decision thereon. National Security Corporation, an appellee, as insurance carrier for appellant’s employer at the time of his injury, was also named as party defendant. On hearing the Trial Court entered judgment denying the petition for writ of mandamus from which judgment appellant has perfected this appeal. Appellant will be hereafter referred to as “claimant”, appellee Industrial Accident Board and its members will be referred to as the “Board” and National Security Corporation will be referred to as “insurer”.

On August 31, 1961, claimant was an employee of Piccadilly Cafeteria of Waco, Inc. at Waco, Texas, on which date claimant alleged he sustained an accidental injury to his back while acting in the scope of his employment and for which injury he filed his claim for compensation under the Workmen’s Compensation Act, the employer being at the time of his injury subject to the Workmen’s Compensation Act and carrying a policy of Workmen’s Compensation insurance with National Security Corporation, as insurer. On October 2, 1961 claimant gave notice of his injury, and later filed his claim for compensation with the Board in compliance with the provisions of Section 4a, Art. 8307, Vernon’s Ann.Civil Statutes. The insurer has at all times denied liability and refused to pay any compensation to claimant.

The Board mailed a notice to claimant on October 25, 1961 that his claim would be heard by the Board on November 28, 1961, a copy of which notice, to which was attached a copy of the statement of the claimant on a form prepared by the Board, was sent to the employer and the insurer.

Shortly before the date set for the hearing, claimant’s attorney telephoned J. Over-by Smith, the then Chairman of the Board, and asked him if the Board would proceed with the hearing and make a final decision without the written statement of a doctor or a chiropractor, stating that he and his client did not intend to furnish such statement. Mr. Smith then advised him that the Board would not have a hearing unless it was furnished a report of the treating or examining physician or chiropractor who had treated claimant to be filed with the-Board on or before the date of the hearing.

Following the conversation between the' claimant’s attorney and Chairman Smith, on November 28, 1961, claimant’s attorney wrote the Board enclosing claimant’s affidavit as to his physical condition and incapacity, and asked that the claim be set for immediate hearing “without the necessity of the submission by the claimant of a statement of any physician.” He also requested a reply as to whether the Board would set the case for hearing without the submission of the medical evidence. On November 30, 1961, the Board in a letter signed by Mr. Smith, the Chairman, and Mr. Buckner, a member, acknowledged receipt of the claimant’s attorney’s letter of November 28, 1961 and stated:

“This is to advise you that the Board rules require medical evidence to be filed in each case before an award will be made. For this reason, no further action will be taken in this matter and you may consider this a final ruling of the Board.”

On the trial claimant offered in evidence his affidavit as to the nature and extent of his injury, which was filed with the Board in connection with his claim, which was admitted by the Court for the sole purpose of showing what information was offered to the Board for its action. The affidavit also contained a statement that claimant had not been paid any compensation by the insurer; that he did not have access to any medical records and was without any funds to pay a doctor for a written statement as to his physical condition and that he did not know any doctor who would prepare and give him a medical statement without the payment of a fee therefor.

Appellant’s sole point of error is that the Trial Court erred in failing to issue a writ of mandamus ordering and directing the Industrial Accident Board and its members to immediately and within a reasonable time thereafter set for hearing the claim of appellant and render a final decision thereon.

In three counterpoints appellees assert that there was no erro.r. by the Trial Court, in refusing to issue the writ of mandamus for the reasons that (1) appellant failed to show that the Board had a duty to enter an award without having a report of the examining or treating physician or chiropractor presented to or filed with the Board pursuant to Rule 5.08; (2) appellant had failed to show that he had exhausted his administrative remedies before the Board; and (3) the evidence is insufficient to authorize the issuance of a writ of mandamus.

Art. 8309a, V.C.S., provides that when an injured employee of a subscriber under the Workmen’s Compensation Act has sustained an injury in the course of employment and filed claim for compensation and given notice as required by law, the Board shall hear his claim for compensation within a reasonable time. While it is within the Board’s discretion to decide what may be a “reasonable time” for hearing the claim, nevertheless it is mandatory for the Board to definitely fix a date upon which the claim shall be heard.

In the instant case, although the Board notified the claimant and the other necessary interested parties that appellant’s claim would be heard on November 28, 1961, nevertheless such hearing was conditioned upon claimant’s compliance with the Board’s Rule 5.08(b) by submitting a report by claimant’s physician giving his opinion of the injury and unless such medical evidence was filed with the Board, no final decision would be made granting or refusing an award to claimant.

Sec. 4, Art. 8307, V.C.S., provides in part as follows:

“The Board may make rules not inconsistent with this law for carrying, out and enforcing its provisions, and may require any employee claiming to have sustained injury to submit himself for examination before such Board or someone acting under its authority at some reasonable time and place within the State, and as often as may be reasonably ordered by the Board to a physician or physicians, a chiropractor or chiropractors authorized to practice under the laws of this State. If the employee or the association requests, he or it shall be entitled to have a physician or physicians, chiropractor or chiropractors of his or its own selection present to participate in such examination. Refusal of the employee to submit to such examination shall deprive him of his right to compensation during the continuance of such refusal. * * *»

Rule 5.08 promulgated by the Board is in part as follows:

“The Board will rely upon the parties to supply it information from which a fair decision may be made. The burden of proof is upon the claimant to establish his claim. The following rules respecting the burden of presenting information will guide the Board in making awards :
“(a) The Board’s award will be made on the basis of the evidence in the Board’s file on the date of hearing.
“(b) On or before date of hearing, the report of the treating or examining physician or chiropractor shall be filed with the Board (Aug. 31, 1961.)”

The fundamental question presented is the authority of the Board to promulgate Rule 5.08(b) requiring claimant to file a report of his examining physician with the Board. It is recognized that the Legislature may delegate to State officers, agencies or administrative bodies the power to enact or promulgate rules and regulations in aid of the statutory authority conferred upon such administrative body. 1 Tex.Jur.2d “Administrative Law”, Sec. 11. But the rules and regulations so enacted by the administrative body may not impose additional burdens, conditions or restrictions in excess of or inconsistent with the statutory provisions. As was stated in Bailey v. Texas Indemnity Insurance Co., Tex.Com.App., 14 S.W.2d 798, 802:

“The regulations of the Industrial Accident Board cannot be used in construing the law, so as to give it a higher mandate than that of the statute.”

By requiring a claimant to furnish at his own expense a report of claimant’s physician under Rule 5.08(b), the Board has placed an additional burden or restriction upon the claimant in excess of the statutory authority conferred upon it under Sec. 4, Art. 8307, V.C.S. Indeed, such rule is in contravention of and inconsistent with the express statutory provision authorizing the Board to require the claimant to submit himself for examination by a physician or chiropractor authorized to practice under the laws of Texas.

If the Board deemed it necessary as a ■condition precedent for hearing and passing upon the extent of the claimant’s injury, that competent medical evidence as to the nature and extent of such injury be presented for its consideration before its final decision in granting or refusing an award, it was its duty to require claimant to submit to an examination by a physician or chiropractor designated by the Board for the purpose of making an impartial diagnosis of the nature and extent of the claimant’s injury in addition to any medical evidence furnished by either the claimant’s or the insurer’s own physician or both as permitted by the statute.

Booth v. Texas Employer’s Insurance Ass’n, 132 Tex. 237, 123 S.W.2d 322, 327, enunciates the rule of law applicable to the instant case. In its opinion, the Court, after stating that the object of giving the timely notice of the claimant’s injury as provided in Sec. 4a, Art. 8307, V.C.S., was to enable the insurer to make its own investigation of the facts upon which the employee based his claim for compensation and if the insurer declined to pay, as in the instant case, the employee could look to the Board for relief by making his claim for compensation and referring to Sec. 4, Art. 8307, held as follows:

“The statute was so written as to permit the injured employee in filing his claim to make known to the board without formality the fact that he has been injured in the course of his employment and that he claims the compensation to which he is entitled under the law for the injury suffered, as is apparent from the fact that the statute does not undertake to prescribe the form or manner of making claims, * * *. The board, under the power given it to make rules, not inconsistent with the law, for carrying out and enforcing its provisions, may require the employee when filing his claim to give such information as will identify the injury and serve as a basis for proper investigation, hearing and determination of the claim. It is apparent from the copy of Booth’s claim filed with the board, as set out in the statement of facts, that the claim was made on a form prepared by the board, the information for which the board called being given by filling the several blanks.” (Italics supplied.)

As shown from the undisputed evidence, the claimant in the instant case complied with all of the applicable provisions of the Workmen’s Compensation Act by giving notice and making and filing his claim with the Board upon the form prepared by the Board except insofar as he failed to comply with Rule 5.08(b) which required him to submit and file with the Board a written report by his examining physician. It may be noted in this connection that in answering the various questions propounded to the claimant on the claim form he stated that he had been to a doctor of his choice, giving his name and address, although he did not comply with the following statement contained in the form “If so, have him write the Board a letter giving his opinion of your injury” for the reason as stated in his affidavit that he was without funds to pay a doctor for a written statement as to his physical condition and that he did not know any doctor who would prepare and give him a medical statement without the payment of a fee therefor. '

Both the Board, his former employer, and the insurer had been advised that claimant had been treated by a physician of his own choice together with the name and address of such physician, which information served as a basis for a proper investigation of the nature and extent of claimant’s injuries by the Board and the insurer. If either the Board or the insurer was dissatisfied with the results of such investigation, the Board was given the statutory authority to order the claimant to submit to a physical examination by a physician or chiropractor at a time and place set by the Board during which examination both the claimant and the insurer were entitled to have a physician or chiropractor of their own selection present and participate in such examination.

It is our opinion and we hold that the Board exceeded its statutory authority granted by Sec. 4, Art. 8307, V.C.S. in promulgating Rule 5.08(b) requiring the claimant to file with the Board on or before the date of hearing the report of his treating or examining physician or chiropractor, and having exceeded such authority the rule is invalid.

It therefore follows that the Board’s refusal to hold a hearing and make a final determination or decision either granting or refusing appellant’s claim for compensation until claimant complied with the provisions of the invalid rule was in violation of the mandatory provisions of Art. 8309a, V.C.S. Since claimant was without any other remedy, either at law or in equity, to compel the Board to set a date for the hearing of his claim and to hear and make a final determination thereof, the writ of mandamus is a proper remedy to require the performance of such ministerial duty. Industrial Accident Board v. Glenn, Tex.Civ.App., 184 S.W.2d 302, rev. on other grounds, 144 Tex. 378, 190 S.W.2d 805, 807; Industrial Accident Board v. Hudson, Tex.Civ.App., 246 S.W.2d 715, 718, no writ history. Appellant’s point of error is sustained and all of appellees’ counterpoints are overruled.

The judgment of the Trial Court is reversed and the cause remanded to the Trial Court with instruction to grant the writ of mandamus as prayed for.

Reversed and remanded with instructions.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    Pat H. EARHART, Appellant, v. Marjorie Jean EARHART, Appellee.
    No. 14009.
    Court of Civil Appeals of Texas. San Antonio.
    May 23, 1962.
    Rehearing Denied July 11, 1962.

      Maynard F. Robinson, San Antonio, for appellant.
    Albert M. McNeel, Jr., San Antonio, for appellee.
   BARROW, Justice.

This is an appeal from a judgment of the 150th District Court of Bexar County dismissing appellant’s suit for divorce, after a full hearing before the court on appellee’s plea in abatement attacking the qualifications of appellant to bring this suit in Bexar County, Texas, under Article 4631, Vernon’s Ann.Civ.Stats. Appellant complains of the trial court’s action on the single point that under the undisputed evidence he was a bona fide resident of Bexar County, Texas, as required by said statute. There are no findings of fact.

Appellant, a career Air Force officer, filed this suit on January 3, 1962. He admits that he has not physically resided in Texas since he left Bexar County in 1950, to carry out a military assignment. At the time of filing the suit and for several years prior thereto, appellant was stationed in California. Therefore, he cannot claim jurisdiction under the 1957 amendment to Article 4631, supra, relating to persons in military service not-previously citizens of Texas, but stationed in military installations in Texas for a period of one year and in the county for a continuous period of six months next preceding the filing of suit.

Appellant was born and reared in California and entered the service in 1943 from that State. This, however, would not preclude him from thereafter becoming a bona fide resident of Texas. Smith v. Smith, Tex.Civ.App., 311 S.W.2d 947; Robinson v. Robinson, Tex.Civ.App., 235 S.W.2d 228.

The rule is quoted with approval by the Supreme Court in Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363, 366:

“A soldier or sailor does not acquire a new domicile merely from being stationed at a particular place in line of duty. His domicile remains the same as that which he had when he entered the service, unless he shows a change by proof of clear and unequivocal intention.”

It was undisputed that appellant had been stationed in Bexar County, off and on, for about five years prior to 1950; that his second wife divorced him in Bexar County, and alleged that he was a resident of Bexar County; he bought four unimproved lots in Bexar County in 1949, and still owns them; he and appellee, whose home was in San Antonio, were married in Bexar County in 1950. Appellant testified to other facts which, if believed, would have supported a finding by the trial court that he was a bona fide inhabitant of Texas. The trial court, however, found to the contrary.

Appellant admitted that for two years prior to the filing of this petition he had declared California as his permanent residence on his military records. He also admitted that he and appellee had owned and lived in a home in Arizona from 1954 to 1956, while he was stationed in Tucson. Appellee denied that either of them had ever expressed an intention of making San Antonio their permanent home, and testified that appellant’s military records had always reflected California as his permanent residence.

The general rule is that the issue of residence of plaintiff in a divorce suit is a fact issue to be determined by the trial court and should not he disturbed on appeal unless there is a clear abuse of discretion. Appellant’s sole point that “the evidence is undisputed” is a law question, and in considering same the reviewing court will consider only the evidence supporting the trial court’s judgment. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Vinson v. Vinson, Tex.Civ.App., 340 S.W.2d 562; Pippin v. Pippin, Tex.Civ.App., 193 S.W.2d 236.

By urging her plea in abatement, the burden was upon appellee to establish by a preponderance of the evidence that appellant did not have the residential qualifications. Goforth v. Goforth, Tex.Civ.App., 335 S.W.2d 281.

After a careful consideration of the evidence in this light, we have concluded that there was sufficient evidence to support a finding by the trial court that appellant did not have the residential qualifications required by law.

The judgment is affirmed.


author: YOUNG, Justice.

text:
    Mrs. Cora REYNOLDS, Appellant, v. Sam W. PETTIGREW et al., Appellees.
    No. 16004.
    Court of Civil Appeals of Texas. Dallas.
    May 11, 1962.
    Rehearing Denied June 22, 1962.

      C. C. Renfro, Dallas, for appellant.
    William P. Fonville, Dallas, for appel-lees.
   YOUNG, Justice.

This controversy simply involves the nature and amount of attorney’s fees; appellant having brought suit to cancel, because of alleged fraudulent representations, the written contract of November 11th, 1959 for a one-third contingent interest in her described lands in return for legal services rendered and to be rendered by Sam W. Pettigrew and J. Alex Blakeley; she claiming that under an earlier contract of October 8, 1959 such fee for legal services was fixed at $25 per hour and in accordance with the Dallas Bar Association schedule of fees. On the jury answers, the court rendered judgment in favor of ap-pellees Pettigrew and Blakeley, each, a one-sixth interest in appellant’s various tracts of land, followed by this appeal.

Omitting conditional issues not answered by the jury, their verdict will now be outlined in substance; (the term “plaintiff’s exhibit No. 7” referring to appellees’ contract of November 11th, 1959 for the one-third contingent interest which plaintiff had sought to cancel) (1) that with reference to plaintiff’s Exhibit No. 7 Sam Pettigrew did not represent to Mrs. Cora Reynolds that it was necessary for her to sign said instrument in order for a suit to be filed and that he would have authority to get another lawyer to help him; (5a) that at time Mrs. Cora Reynolds signed plaintiff’s Exhibit No. 7, she knew that such instrument conveyed to said Sam Pettigrew an undivided one-third interest to her properties; (6) that Cora Reynolds requested Sam Pettigrew to pay interest on the loan to Selikoff; (7) that the payment of interest on the loan to Selikoff represented by Sam Pettigrew’s check was not a loan to Mrs. Reynolds; (8) that the request of Mrs. Reynolds for the payment of interest on the loan to Selikoff was a recognition by Mrs. Reynolds of Pettigrew’s interest in the property in question; (9) that Pettigrew relied on such recognition m making the payment of interest on the loan in question; (9a) that Pettigrew would not have made the payment of interest on the loan but for such recognition as found in answer to Issue No. 8. Similar issues 10 through 13 with reference to appellee J. Alex Blakeley were likewise answered favorably to him. The jury found in response to Issue No. 14 that Pettigrew and Blakeley spent on the investigation, preparation, handling and closing of the case involving the property of Mrs. Reynolds a total of 375 hours.

Plaintiff below, Mrs. Reynolds, in the business of operating tourist courts, was the owner of considerable property, lying principally in Dallas County and had followed a practice of conveying tracts from time to time to her son, Dr. A. M. Reynolds, of De Leon, Comanche County, to hold for her; the latter forming a Texas Corporation to which the properties were later transferred. In the summer of 1959 Mrs. Reynolds learned that her son had conveyed a one-third interest in the properties to a named law firm as a pledge for services to be rendered to this Corporation which instrument the law firm had refused to cancel upon demand. Thereafter Mrs. Reynolds had consulted appellee Pet-tigrew, who agreed in written contract of October 8, 1959 to render all legal services necessary “to getting my property straightened out” for a fee of $25 per hour, plus travel and telephone expense, said charge being according to the minimum schedule of fees fixed by the Dallas Bar Association. In the meanwhile, differences had arisen between Mrs. Reynolds and Dr. Reynolds with respect to her properties held by him; and it appearing that litigation was inevitable against not only this named law firm but also Dr. Reynolds and the Corporation, Pettigrew so advised Mrs. Reynolds, stating that he would be required to secure the assistance of another lawyer. Then came the later written agreement between the parties as to a fee schedule, verbally agreed upon on October 17, 1959 and reduced to writing on November 11th, referred to in the court’s charge as plaintiff’s exhibit No. 7. Paragraphs 3 and 4 of this later contract reads: “This is to certify further that I have learned that my property, hereinafter described, has been conveyed to A. M. REYNOLDS, INCORPORATED, and if such conveyance was made, it was done through fraud and misrepresentation on the part of A. M. REYNOLDS, INCORPORATED, or its President, DR. A. M. REYNOLDS.

“This is to certify further that I have employed Attorney SAM W. PETTI-GREW to take whatever action necessary to recover the hereinafter described property and such employment was effective as of the 8th day of October, 1959, and I certify further that such employment is on a contingent basis in that if I fail to recover my property, that no fees will be due other than the expenses involved such as travel, telephone, court costs, etc.” The contract further authorized the hiring by Pettigrew of additional counsel. After considerable negotiations and the filing of two law suits, appellees were successful in recovering for appellant all of the lands in suit.

The foregoing is explanatory of Issue No. 1, plaintiff testifying at time of signing the November 11th instrument that Petti-grew had not disclosed to her that the prior agreement as to attorney’s fees of $25 per hour had been abandoned and replaced by one of contingent interest in her lands; thus raising this issue and answered adversely to Mrs. Reynolds.

Appellant’s points of error are (1) the evidence is insufficient to support the judgment rendered in favor of appellees; (2, 3 and 4) that Issues 7, 8 and 9 involved questions of law as distinguished from questions of fact; (5) error in submission of 9a because “such isolated item of $390 was not sufficient to establish title to an undivided one-third interest in $300,000 worth of real property.” Appellees object to any consideration of above points one and five, because not germane to any assignment of error as contained in her amended motion for new trial. Rule 324, Texas Rules Civil Procedure. The objection must be sustained. Under Rule 374, T.R.C.P. “A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived.”

Special Issues 7, 8, 9 and 9a clearly do not involve questions of law. They presented the additional defense of estoppel on part of appellant to deny that the conveyance to Pettigrew was obtained by fraud, and was conditioned upon an affirmative finding of fraud in favor of appellant. But the jury has answered the controlling Issue No. 1 in the negative, rendering immaterial these issues on estoppel, even if error had appeared in their submission, which we do not find.

The judgment in question incidentally is well supported in fact; the contract of November 11th expressly stating that the contingent one-third interest was effective from October 8th, 1959, the inception of Petti-grew’s employment. It had superseded the earlier instrument on the subject of attorney’s fees.

All points presented are without merit and the judgment under review is accordingly affirmed.


author: FANNING, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Bobby Joe HURST, by Next Friend, A. G. Hurst, Appellee.
    No. 7405.
    Court of Civil Appeals of Texas. Texarkana.
    June 12, 1962.
    Rehearing Denied July 17, 1962.

      Moore & Lipscomb, Paris, for appellant.
    Peyton A. Ellison, F. D. Wear, T. D. Wells, Paris, for appellee.
   FANNING, Justice.

Appellant insurance company has appealed from a judgment rendered pursuant to the verdict of a jury in a workmen’s compensation insurance case wherein appellee Bobbie Joe Hurst was awarded a recovery of $8,000.02.

Appellant by its first point contends that the trial court erred in overruling its plea in abatement. This plea was based on the contention that the trial court did not have jurisdiction because appellee’s claim before the Industrial Accident Board was filed by appellee when he was a minor and not by guardian or next friend. The Board accepted the filing and rendered a final award, awarding appellee certain stated compensation benefits. Appellee gave timely notice of appeal and by his father as next friend timely filed suit in the trial court to set aside the award of the Board. We do not believe that the trial court erred in overruling appellant’s plea in abatement. In .reaching this conclusion, it is kept in mind that it has long been an accepted principle that the workmen’s compensation law will be liberally construed and legal doctrines liberally applied by the courts, to make effective the basic purposes of the law. In connection with the question raised by appellant’s first point see Texas Employers Ins. Ass’n v. Goines, Tex.Civ.App., 202 S.W.2d 487, wr. ref., n. r. e. Appellant’s first point is overruled.

Appellant by its 2nd, 3rd and 4th points in essence raises “no evidence”, “insufficient evidence” and “against the great weight and preponderance of the evidence” points. For a comprehensive discussion of the principles of law applicable to the determination of such character of points see Chief Justice Calvert’s article, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error”, 38 Tex.Law Rev., No. 4, p. 361.

There was ample evidence of probative force to sufficiently support the jury’s findings that appellee sustained an accidental injury during the course of his employment and the same was not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

The principal controversy between the parties seems to be the nature and extent of the injuries and disabilities, if any, sustained by appellee.

According to the testimony of the three doctors placed on the stand by appellant, the plaintiff’s injuries, if any, were minor, and his disabilities, if any, were of a minor temporary nature, and according to their opinion, plaintiff-appellee was able to work.

However, on the other hand, according to plaintiff-appellee’s own testimony he sustained an accidental injury from a fall during the course of his employment resulting in painful, serious and disabling injuries to his back. Appellee’s testimony was also corroborated in material respects by lay testimony given by his wife, father and mother. Appellee’s testimony as to his injuries and disabilities was also corroborated in material respects by a doctor whose medical testimony given by deposition was placed in evidence by plaintiff-appellee.

The jury was the judge of the ■credibility of all of the witnesses, including the doctors, and of the weight to be given their testimony. It was for the jury to weigh and consider the testimony of the doctors and to give credence to such portions of the same as they determined in the proper exercise of their jury function. It is well settled law in this state that expert testimony is not required to uphold a finding of injury. Coca Cola Bottling Company of Fort Worth v. McAlister, Tex.Civ.App., 256 S.W.2d 654; Dallas Ry. & Term. Co. v. Enloe, Tex.Civ.App., 225 S.W.2d 431, wr. ref. n. r. e.; Armour & Co. v. Tomlin, Tex.Civ.App., 42 S.W.2d 634, affirmed Tex.Com.App., 60 S.W.2d 204; Verhalen v. Nash et al., Tex.Civ.App., 330 S.W.2d 676, wr. ref., n. r. e.

Appellant’s own testimony as to his injuries and serious disabilities constitutes evidence of probative force. The corroborating lay testimony also was evidence of probative force. The testimony of appellee and his lay witnesses was sufficient to support the verdict of the jury. Also the testimony of appellee’s medical witness corroborates appellant’s testimony as to his injuries and disabilities in material respects and to at least a substantial extent.

After carefully considering the entire record in this cause in the light of the rules announced in the case of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, it is our view that the jury’s verdict is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Appellant’s 2nd, 3rd and 4th points are overruled.

By its 5th point appellant contends that the trial court erred in permitting ap-pellee’s counsel to ask leading questions. Many of the questions complained of were not objected to; the trial court sustained objections to the large majority of the questions objected to by appellant as being leading, and in several instances the trial court instructed the jury to not consider the answers to such questions. It is a well recognized principle that the allowance of leading questions is a matter resting largely within the discretion of the trial court and in Texas the case will not be reversed in the absence of a showing of abuse of discretion. McCormick & Ray, Texas Law of Evidence, Vol. 1, p. 457. Appellant’s 5th point does not present reversible error under this record and is overruled.

We do not perceive reversible error in the action of the trial court in permitting appellee to introduce in evidence the x-rays taken by appellee’s medical witness, who testified by deposition, in view of the agreements made by appellant in the taking of the deposition, and in court, and in view of the explanation of such x-rays made by said medical witness in the deposition. Appellant also has not cited any authority in support of its 6th point. Appellant’s 6th point is overruled.

By its 7th point appellant contends that the trial court erred in permitting ap-pellee’s witness Wood to testify he did not know of any work done by the appellee subsequent to the date of the claimed injury. The question asked of the witness Wood and the answer the witness gave are as follows:

“Q. As far as you know, has he done any work for anyone else ?
“A. I don’t know.”

In view of Mr. Wood’s answer, “I don’t know”, we fail to perceive how appellant was harmed thereby. Appellant’s 7th point is overruled.

By its 8th point appellant contends that the trial court erred in permitting the ap-pellee to cross-examine appellant’s medical witness Dr. Townsend respecting a pre-employment examination of the appellee for Lamar Equipment Company (the employer of appellee).

The record reveals that the trial court sustained objections of appellant to various features of appellee’s cross-examination of Dr. Townsend with respect to the matter complained of. Appellee’s counsel on cross-examination asked Dr. Townsend if he made a physical examination of appellee for the above referred to company on July 15, 1959 (a time prior to the injury sued on here), which was answered affirmatively and the court permitted him to answer a question in which answer Dr. Townsend stated to the effect that the said examination was one to see whether he (appellee Hurst) was able to drive a truck, and as far as he could tell, he was at that time. Prior to this cross-examination, appellant’s counsel previously had inquired of appellee Hurst with respect to whether Hurst had had motor vehicle accidents in 1958 and 1959. The limited cross-examination on this matter allowed by the trial court does not constitute reversible error under this record. See Travelers Insurance Company v. Jackson, Tex.Civ.App., 343 S.W.2d 735, wr. ref., n. r. e. Appellant’s 8th point is overruled.

We also hold that the trial court did not err in refusing to permit appellant to ask its medical witness Dr. Ball the question stated in its 9th point because such question contained matters of fact or evidence not in the record at that time and the proper predicate was not laid for such question at the time it was asked. Also under Rule 434, Texas Rules Civil Procedure, the matter complained of is deemed harmless under the entire record in the cause. Appellant’s 9th point is overruled.

We also hold that the trial court did not commit reversible error in permitting appellee to introduce in evidence on rebuttal portions of the deposition of his medical witness, Dr. Jackson, as it is largely discretionary for the trial court to permit the introduction of testimony out of order. Trial, Civil Cases, 41B Tex.Jur., Sec. 91, p. 124. Appellant’s 10th point is overruled.

Appellant’s 11th, 12th and 13th points in essence complain of the following matters: (11) failure of the trial court to submit a special issue requested by appellant; (12) the trial court’s overruling of appellant’s objections to special issue No. 8; and (13) the trial court’s overruling of appellant’s objections to the conditional submission of certain special issues in the court’s charge. It is our view that the trial court’s charge fairly, adequately and sufficiently submitted the case to the jury under the record in this case. It is our further view that the matters complained of by appellant in its points 11, 12 and 13, were not reasonably calculated to cause and probably did not cause the rendition of an improper judgment in the cause and that none of said points present reversible error. Rule 434, T.R.C.P. Appellant’s 11th, 12th and 13th points are overruled.

Appellant, by its points 14 to 19, inch, complains of jury argument made by attorneys for appellee. The argument complained of by point 14 is shown in a bill of exception which shows no ruling was made by the court on the objection made and the bill is qualified by the trial court stating that the argument in question was invited by the argument of appellant’s counsel. The bill of exception in connection with appellant’s 15th point likewise shows no 'ruling was made by the court on the objection made. The bill of exception in connection with appellant’s 16th point is qualified by the trial court stating to the effect that no objection was made or exception taken to the argument at the time it was made and that no request was made to withdraw the cause from the jury and discharge the panel either at the time the argument was made or prior to the time the jury retired to consider its verdict.

Appellant’s 17th point complains of the following quoted argument of appellee’s counsel:

“Now Mr. Moore complained about the comment about the 99 per cent doctor. Well I just read it because I don’t want to mis-quote it, and I don’t like to quote the testimony. In the first place I found a long time ago that you twelve people can remember the testimony a lot better than I can, I might make a mistake, so I had the court reporter type out for me here part of Dr. Butte’s testimony and this is when I cross-examined him, says, ‘Well you testify mostly for insurance companies don’t you doctor ?’ And this is the answer he gave me first. ‘I expect more for insurance companies than plaintiffs except it is not entirely one-sided.’ He said at first ‘it is not one-sided entirely’ put that in. And I said ‘It is pretty much one-sided to be perfectly fair about it isn’t it, Doctor’ and this is what Dr. Butte answered, he said ‘Well I expect I testify a good many more times for insurance companies than for plaintiffs in 99 times out of a hundred cases I have sat on.’ In other words he sits up here and tells you that he has testified at least a hundred times, I take it from that, and 99 times of those and maybe more, it has been for insurance companies”.

The bill of exception in connection with appellant’s 17th point, complaining of the above quoted argument, was qualified by the trial court as follows:

“(1) No objection was made or exception taken to the argument by counsel for the defendant. The Travelers Insurance Company, at the time the argument was made or before the jury retired to consider its verdict.
“(2) The foregoing argument was invited by and made in reply to the argument of the Hon. Hardy Moore, counsel for the defendant, who made the second of the two arguments for the defendant, and in such argument stated and argued to the jury as follows:
“Is there anyone in this jury box who wouldn’t be willing to trust himself and his family in the hands of Dr. Butte? Are you going to say, as I believe that you will say, that ‘Dr. Butte is a first class doctor, I would be willing for him to operate on me, I would be willing for him to treat me’; and because he comes into a court room and testified, that you are going to say that the very doctor I feel is first class, I am not going to believe, I am going to say he is a 99 per cent insurance company doctor and he is not worthy of belief?”

The bill of exception in connection with appellant’s 18th point is qualified by the trial court stating to the effect that no objection was made or exception taken to the argument there in question at the time the argument was made or before the jury retired to consider its verdict and that the argument complained of was in reply to and invited by the argument of counsel for appellant.

The bill of exception in connection with appellant’s 19th point is qualified by the trial court stating to the effect that the trial court sustained appellant’s objection to such argument and instructed the jury not to consider the argument for any purpose.

We have carefully examined the arguments complained of by appellant in its points 14 to 19, inch, in the light of the qualifications made by the trial court to the bills of exception above referred to, as well as in the light of the record as a whole, and are of the opinion that the said arguments in question neither singly nor collectively would constitute reversible error under the record in this case. Rules 434 and 503, T.R.C.P.; Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596; Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054; Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404; Whitener v. Traders & General Ins. Co., 155 Tex. 461, 289 S.W.2d 233; Walker v. Tex. Emp. Ins. Ass’n, 155 Tex. 617, 291 S.W.2d 298. Appellant’s points 14 through 19, inch, are overruled.

Appellant’s 20th point in essence contends that the trial court erred in overruling appellant’s motion for mistrial because appellee’s counsel in argument read to the jury the court reporter’s transcript of the testimony of Dr. Butte showing to the effect that said Doctor had testified for insurance companies in “99 times out of 100 cases I have sat on”, with appellant contending that such testimony was incorrectly transcribed and that the reporter’s 'recording device would show that the testimony of Dr. Butte in connection with this matter was as follows: “Well I expect I testify a good many more times for insurance company than for plaintiff. Ninety-nine out of a hundred cases are settled.” Appellant’s 21st point in essence contends that the trial court erred in overruling appellant’s motion to recall the jury and read to it the above referred to testimony which appellant contended was the correct testimony of Dr. Butte.

The Statement of Facts, not being agreed to by counsel for the parties, was certified to by the trial judge and with respect to the above referred to testimony of Dr. Butte, reads in part as follows:

“Q. Well, you testify mostly for insurance companies, don’t you doctor?
“A. Well I expect more for insurance companies than for plaintiffs but it’s not entirely one-sided.
“Q. It is pretty much one-sided to be perfectly fair about it, isn’t it, Doctor?
“A. Well, I expect I testify a good many more times for insurance companies than for plaintiffs, in 99 out of a hundred cases I have sat on. (The above answer as taken down by the reporter in shorthand, is the matter in controversy between plaintiff and defendant, defendant contending that the answer made by the witness was as follows: ‘Ninety-nine out of a hundred cases are settled’. The Court Reporter, in addition to her shorthand notes, also used a tape recorder, and such tape recording of the testimony of the witness Dr. Butte is transmitted with this Statement of Facts to the Court of Civil Appeals.)”

The bill of exception in connection with the matters raised by appellant’s points 20 and 21 was qualified by the trial court as follows:

“1. While the jury was deliberating, counsel for defendant moved to declare a mistrial. No request for the Court to hear testimony on the motion was made, no witnesses were sworn and no testimony was offered or heard by the Court in connection with this motion.
“2. While the jury was deliberating, counsel for the defendant, The Travelers Insurance Company, contended that certain testimony of its witness Dr. Butte was incorrectly transcribed by the Court reporter and moved the Court that the Court recall the jury and read to the jury the following as the testimony of Dr. Butte:
“ ‘A. Well, I expect I testify a good many more times for insurance company than for plaintiff. 99 out of 100 cases are settled’.
“No witnesses were sworn or testimony offered or heard by the Court in connection with such motion.
“3. While the jury was deliberating, counsel for defendant asked the Court reporter to play back the tape recording, which was taken in addition to her short-hand notes, in the courtroom, the Judge being in the courtroom, but not on the bench at such time, of the testimony of its witness Dr. Felix Butte, the Judge being invited by defendant’s counsel to hear the tape recording.”

It is our best judgment that appellant’s points 20 and 21, when considered in the light of the trial court’s qualifications to the bill of exception above referred to, and in the light of the record as a whole, do not constitute reversible error under Rule 434, T.R.C.P. Appellant’s 20th and 21st points are overruled.

The judgment of the trial court is affirmed.


author: DIXON, Chief Justice.

text:
    Charles W. KEMP, Appellant, v. Joe WESTBROOK, Appellee.
    No. 16000.
    Court of Civil Appeals of Texas. Dallas.
    April 20, 1962.
    Rehearing Denied June 8, 1962.

      Wm. Andress, Jr., Dallas, for appellant.
    Vactor H. Stanford, Dallas, for appellee.
   DIXON, Chief Justice.

This is an appeal from a judgment (1) in favor of appellee Joe Westbrook permanently enjoining appellant Charles W. Kemp from foreclosing an alleged deed of trust lien against certain real property, and (2) against appellant Charles W. Kemp on his cross-action seeking judgment for the alleged balance due on a note and for foreclosure of the deed of trust lien.

On December 6, 1960 appellee filed his suit for injunction and was granted an ex parte restraining order enjoining appellant from proceeding with a trustee’s sale advertised for that day, December 6, 1960.

On December 15, 1960 after a hearing ap-pellee was granted a temporary injunction. The court’s order recited that, having heard the pleading and evidence, the court was of the opinion that appellee had not been delinquent on his promissory note, nor had he violated any of the covenants contained in the deed of trust.

The maturity date of the note was December 22, 1960. On December 23, 1960 appellant, alleging default in payment, filed his cross-action to appellee’s injunction suit, in which cross-action he prayed for foreclosure of his deed of trust lien. He alleged that appellee had violated a covenant in the deed of trust in that he had failed to maintain insurance against the property in question.

On January 30, 1961 appellee filed a motion for summary judgment in his favor in his suit for injunction.

On January 31, 1961 appellant took a default judgment on his cross-action against appellee Westbrook. Appellee had not filed an answer to -appellant’s cross-action. The default judgment was for $1,591.75 and foreclosure of the deed of trust lien.

On February 8, 1961 appellant filed a motion asking that the default judgment be made final. The grounds were that ap-pellee’s suit for injunction had become moot.

On February 10, 1961 appellee filed his supplemental petition and a motion asking that the default judgment be set aside, and that the appellant’s motion to make the default judgment final be overruled.

Also on February 10, 1961 the court set aside the default judgment of January 31, 1961, and overruled appellant’s motion to make said judgment final. On the same day the court granted appellee a summary judgment in appellee’s original suit for injunction. The order permanently enjoined appellant from foreclosing his alleged lien. Appellant’s cross-action remained pending.

On March 14, 1961 appellee filed a motion for summary judgment against appellant on appellant’s cross-action.

On April 28, 1961 the court rendered final judgment. Appellee’s motion for summary judgment against appellant on appellant’s cross-action was sustained. Judgment in favor of appellee in his injunction suit was included in this final judgment.

FACTS

Appellee Westbrook is a building contractor. Appellant Kemp is in the lumber business. On August 24, 1960 appellee executed a note and deed of trust for $15,000 payable to appellant 120 days after date with interest at 7%. These instruments were executed by appellee to provide interim financing for the construction by ap-pellee of a house for sale. Soon after their execution appellant assigned the note and deed of trust to the Republic National Bank in Dallas as collateral.

The deed of trust provided that appellee should maintain insurance on the property. Default in that respect would give appellant a right to foreclosure. Also appellant as mortgagee was authorized to keep the property insured at appellee’s expense should appellee fail to maintain insurance.

Pursuant to the terms of the deed of trust appellee obtained a builder’s risk insurance policy from Employers Casualty Company. This was satisfactory to appellant and the Bank. The policy or a certificate thereof was turned over to appellant.

On October 28, 1960 Employers Casualty Company addressed letters to appellant, ap-pellee and the Bank respectively, notifying them that the policy of insurance would be cancelled ten days from receipt of the notice. Appellee did not receive his letter. It was returned undelivered to Employers Casualty Company.

The notice requested return of the policy to the insurance company. Accordingly appellant returned the policy. He has not had it in his possession since that time.

Meantime appellee in a telephone conversation with appellant on a Saturday, learned of the letter of notification. The following Monday he conferred with the sales manager of the insurance company. The letter had been sent because of the company’s dissatisfaction in regard to the payment of premiums on other insurance policies not here involved. A satisfactory adjustment of the matter was affected. The insurance was not cancelled. The sales manager of Employers Casualty Company informed appellant Kemp by telephone that the company had revoked its notice of cancellation. All this took place within the 10 day period stipulated in the letters. Ordinarily the insurance company confirms by letter its verbal revocation of a notice to cancel, but in this instance, through oversight, it did not do so. The policy was not returned to appellant. However it is undisputed that appellant received actual notice that the letter of cancellation had been revoked and that the insurance was still in effect. Appellant was so informed “on a day closely following the notice of cancellation”. The quoted words are those of the sales manager of the insurance company.

Soon after receipt of the letter notifying him that the insurance would be cancelled ten days after receipt of the notice, appellant Kemp made arrangements for insurance with another company. He obligated himself for an insurance premium of $12.88.

Meantime appellee proceeded with construction of the house. He did not draw the full amount of $15,000 from appellant. During the period of the construction he drew sums of money from time to time against the note, the total of the sums thus advanced, at different times, by appellant amounting to $13,650.86.

On November 15, 1960 appellant’s attorney, who was the Trustee named in the deed of trust, wrote to appellee informing him that notices of trustee’s sale were being posted. The sale was to be held December 6, 1960. The grounds for foreclosure were appellee’s alleged failure to maintain insurance. Appellee filed suit and was granted a temporary injunction on December 15, 1960. It was in this suit that appellant later filed a cross-action for debt and foreclosure, including attorney’s fees.

Appellee finished construction of the house and found a purchaser. The sale was closed and the sale papers signed in the office of American Title Company. In connection with the closing of the sale request was made of appellant for the exact amount including interest due on the note. Appellant referred the inquiry to his, appellant’s, attorney. The figure furnished by the attorney was $13,650.86 principal plus $243.60 interest as of December 12, 1960. Harry R. Shawver, Jr. attorney for the title company says he confirmed this figure in a telephone conversation with appellant’s attorney. So far as the record shows appellant did not say anything about his claim for $12.88, the premium for the insurance he took out after he received the notice of intention to cancel appellee’s insurance. The sale was completed a few days later and the sum of $2.65 per day for seven days was added as interest. A check, dated December 17, 1960 for $13,913.10 was sent to appellant. This check was received by appellant on December 20, 1960. The check was cashed by appellant on December 30, 1960, seven days after he filed his cross-action for foreclosure.

OPINION

In his first and second points on appeal appellant asserts that (1) mailing notices of cancellation to the insured and the mortgagee, and surrender of the policy by the mortgagee pursuant thereto effected cancellation, therefore (2) under the terms of the note and deed of trust lien the mortgagee, Kemp, was authorized to accelerate maturity and proceed to foreclosure.

We do not agree with appellant. The letter of notification is not copied in full into the record. However George H. Measley, Sales Manager of Employers Casualty Company, testifying at the hearing December 15, 1960, quoted the material part of the letter as follows: "* * * the Employers Casualty Company hereby notifies you 'that the above captioned policy will be cancelled ten days from receipt of this notice.” (Emphasis ours.) This testimony is in effect corroborated by appellant himself. In a controverting affidavit appellant stated, “On 28 October 1960 Employers Casualty Company notified me that the policy would be cancelled ten days from receipt of the notice.” (Emphasis ours.)

From the above wording it is apparent that the insurance company did not by its letter of notification actually cancel the insurance as of the date of the notice, October 28, 1960. The letter notified appellant that the insurance company was going to cancel the insurance ten days after receipt of the-letter. As it turned out the company after a. conference with appellee changed its mind.. The notice was revoked before the ten day period had expired. We know of no reason why the insurance company could not revoke its notice within the ten day period named in the notice. By telephone appellant received actual notice from the insurance-company of the revocation of the notice. The insurance was never cancelled.

In this connection we quote from the-testimony of Measley, the Sales Manager,, given December 15, 1960:

“A I talked to Mr. Kemp on the phone, explained that we had sent out notice and that we were going to put it back in force, and he advised me that they had secured another policy, which still didn’t change my situation with what I had to do, and his reasons, beyond what his problems were, I don’t know.
* * * * * *
“Q And you notified him that this, policy was in effect, and was going to-stay in effect, then?
* * * * * *
“Q But you told him over the phone-you were revoking the cancellation?
“A Yes.”

We quote also from Measley’s affidavit executed June 1, 1961:

“Joe Westbrook made satisfactory arrangements with me for the payment of such premium on the other policies, and that as a result instructions were issued to revoke the notice of cancellation. That such was done within the ten day period set forth in the notice of cancellation and that inasfar as Employers Casualty Insurance Company is concerned said policy was never can-celled and has at all times remained in full force and effect. * * * furthermore I notified Mr. Kemp of Kemp Lumber Company by telephone conversation on a day closely following the notice of cancellation that such matter had been attended to by Mr. Westbrook and that the policy had not been cancelled. That Employers Casualty Insurance Company stands ready to comply with any and all demands which may or might arise by virtue of the contract of insurance with Joe Westbrook and the records of such company in no way reflect that such policy was ever cancelled at any time from the date of its inception.” (Emphasis ours.)

Appellant contends that the mere sending of the notice had the effect, under the terms of the policy, of cancelling the insurance. If the policy so provided it is apparent that the insurance company did not avail itself of such provision. The language of the letter of notification states what the company “will do” on a certain named date in the future. The door was left open for a change of intention.

In support of his contention appellant cites these cases: The Insurance Company of Texas v. Parmelee, Tex.Civ.App., 274 S.W.2d 944; Texas Cas. Insurance Co. v. McDonald, Tex.Civ.App., 269 S.W.2d 456; Duff v. Secured Fire & Marine Ins. Co., Tex.Civ.App., 227 S.W.2d 257; Gulf Ins. Co. v. Riddle, Tex.Civ.App., 199 S.W.2d 1000; Aetna Ins. Co. v. Aviritt et al., Tex.Civ.App., 199 S.W.2d 662; Frontier-Pontiac, Inc. v. Dubuque Fire & Marine Ins. Co., Tex.Civ.App., 166 S.W.2d 746; California-Western States Life Ins. Co. v. Williams, Tex.Civ.App., 120 S.W.2d 844; Hall v. Miller, Tex.Civ.App., 268 S.W. 268.

None of these cases cited by appellant is in point here. In none of them was the notice of cancellation revoked by the insurer before the expiration of the time limit named in the notice. In some of the cases it is held that the notice itself is effective as a notice if properly mailed, though never received by the insured. But in none of them is it held that the cancellation itself became effective prior to the date set for cancellation in the notice, or that the notice of cancellation cannot be revoked prior to the date named for the cancellation.

Appellant’s first two points are overruled.

In his third and fourth points appellant says that (3) the mailing of an ordinary check by a stranger to the mortgage transaction after it is in litigation is not a sufficient tender; and (4) even a good tender of less than principal and interest owing will not prevent the note from being in default for nonpayment at maturity, and when it is in litigation and judgment is sought thereon and for foreclosure, contractual attorney’s fees are payable.

After a careful consideration of the record in this case we have concluded that the above points should be overruled. Appellant says that a tender of payment by check is not a good tender. That question is not an issue in this case, for appellant accepted the check sent to him by the title company and on December 30, 1960 cashed said check. He cannot be allowed to cash the check, keep the money, and then repudiate payment because of the form in which it was made. He will not now be heard to complain that payment was made in the form of a check. Nicewarner v. Alston, Tex.Civ.App., 228 S.W.2d 872; Pitts v. G. F. C. Corp., Tex. Civ.App., 228 S.W.2d 261; Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 132 S.W.2d 553, 164 S.W.2d 488 ; 40 Tex.Jur. 852; 86 C.J.S. Tender § 23, p. 569.

Appellant also contends that the check which he received and which he cashed was for a lesser amount than the debt due. He says that it did not include enough interest, and did not include any attorney’s fees.

It is to be remembered that the sum borrowed from appellant, $13,650.86, was not advanced in one lump sum. It was paid over to him in lesser amounts from time to time as work proceeded in the construction of the house. The record is silent as to the specific dates when appellee drew payments on the note. Interest started running on each advance as it was made, not on the full amount of $15,000 from the date of note, and not on the total amount of $13,-650.86 from the date of the note. But the exact dates of the advances are not material to our decision. For it is undisputed that when the Title Company was ready to close the deal for the sale of the house, inquiry was made as to the amount including interest, and appellant through his attorney gave the figure as $13,650.86 plus interest of $243.60 as of December 12, 1960. Shawver added seven days additional interest at $2.65 per day, a total additional interest of $18.55. This made a total amount due appellant of $13,913.01. A check dated December 17, 1960 in the latter amount was mailed to appellant. This is the check appellant received December 20, 1960, kept and cashed December 30, 1960. In view of these circumstances appellant will not be heard to complain that the amount was not correct. Young v. Fitts, 138 Tex. 136, 157 S.W.2d 873; Jacobs v. Ludwig, Tex.Civ. App., 99 S.W.2d 416.

We do not consider American Title Company a stranger to this transaction. It had prepared the original note and mortgage from appellee to appellant as well as a binder in regard to Westbrook. It was issuing a title policy on the property. It was interested in seeing that the full amount due to appellant was paid so as to obtain ■a release of the lien. It is common knowledge that title companies act as agents for debtors in disbursing money to lien holders inclosing real estate sales of property on which they issue title policies. Appellant ■could not question the source of the money paid in satisfaction of appellee’s note and -deed of trust. Wischkaemper v. Massey, Tex.Civ .App., 70 S.W.2d 771.

In his fifth point appellant alleges that in passing on his cross-action the court wrongfully gave summary judgment that the mortgagee take nothing when a portion of the debt secured remained unpaid.

Again we are unable to agree with appellant for the undisputed facts negative appellant’s assertion that a portion of the debt remained unpaid. In his brief appellant contends that interest on $13,650.86 should be computed from the date of the note August 24, 1960. Therefore the check of December 17, 1960 to appellant in the amount of $13,913.01 was $42.81 short as to interest. In our opinion, as we have already stated, money advanced by appellant to ap-pellee from time to time should draw interest only from the date of each advance. These dates are not shown, but the dates become immaterial in view of the fact that appellant himself through his attorney furnished the figures which the Title Company and appellee accepted and relied on as to the correct amount due appellant on December 12, 1960. To this amount the title company added seven days interest in its check of December 17, 1960. There was no shortage in the amount of the check.

Appellant also takes the view that attorney’s fees of 10% should have been added because, according to appellant, the note was in default on December 22, 1960 the date of maturity. To this we cannot agree because the undisputed evidence shows that there was no default on December 22, 1960. Appellant’s fifth point is overruled.

In his brief appellant argues that it was proper for the court to render default judgment January 31, 1961 in appellant’s favor on appellant’s cross-action since appellee had not filed an answer to the cross-action. There is no merit to this argument. Appellee’s petition constituted an answer to appellant’s cross-action. Jones v. Kelley, Tex.Civ.App., 91 S.W.2d 969, 973; Overland Automobile Company v. Cleveland, Tex.Civ.App., 250 S.W. 453; Taylor v. Ward, Tex.Civ.App., 102 S.W. 465.

The judgment of the trial court is affirmed.

ON REHEARING

In his motion for rehearing appellant says that in asking for an injunction against appellant, appellee himself pled his own execution of a $15,000 note without pleading any credits or any showing of a lesser amount due than the full $15,000 named in the note. Then later he directed American Title Company to pay “the entire sum owing by virtue of the terms of the note”, yet only the sum of $13,913.01 was actually tendered to appellant. This raises a fact issue, according to appellant. The record also discloses that appellant in his unsworn cross-action asking foreclosure of his deed of trust lien also pled the $15,000 without alleging any credits or lesser amount due.

However in appellee’s First Amended Supplemental Petition answering appellant’s cross-action appellee does plead a lesser amount due. We quote from appel-lee’s sworn pleading:

“Plaintiff would show the court that a hearing was held in this matter by this court on December 15th, 1960, at which time defendant admitted that only $13,650.86 had been drawn by plaintiff on his note executed to defendant KEMP in the sum of $15,000.00, and that only that sum plus interest was due. * * * That two days later plaintiff, through his agent, American Title Company of Dallas, sent the said sum plus interest to defendant KEMP which was received in due course of business on December 20, 1960, and that in the course of business KEMP LUMBER COMPANY cashed said sum on December 30, 1960, and has had the use and benefit of said sum of money since prior to the maturity of the note in question. That it is the custom and usage of the trade, where a lumber company is involved in interim financing, as was the case here, that the only sum to be charged to the payor of the note is the amount allowed to be drawn on said note by the financial institution or lumber company advancing said money, plus agreed interest. That here plaintiff borrowed only $13,650.00 on said $15,000.00 note and that the title company check of American Title Company duly cashed by said defendant KEMP LUMBER COMPANY was full payment for all sums advanced by said defendant to said plaintiff.
“Plaintiff would show in the alternative, in the event that his plea of payment is not sufficient in law, that there is a failure of consideration on the part of defendant since plaintiff did not receive the agreed sum of $15,000.00 under the note and deed of trust executed by him.
“Plaintiff would show the court that in the alternative, that in the event his plea of payment is not sufficient under law that he has set-off between the sum of $13,650.00 and $15,000.00 for sums-which he did not draw which under the terms of the agreement under the note he was entitled to from defendant.
“Plaintiff executed the deed of trust to defendant in connection with the $15,000.00 note and although defendant has accepted and used plaintiff’s-money in payment thereof, he refused' and still refuses to execute a release of lien and plaintiff prays that this court order defendant to execute the release and return same to the American Title Company for recordation.”

We of course may not and shall' not look to the pleadings as evidence of the truth of their own allegations. We quote from the pleadings merely to show that appellee pled defenses which entitled him to adduce evidence of an amount due less than the $15,000 named in the note.

It is undisputed that appellant advanced and loaned to appellee only the sum of $13,650.86, not the full amount of $15,000 called for by the note. Appellee so swore in a supporting affidavit, dated March 14, 1961 and drawn in the form prescribed by Rule 166-A(e) Texas Rules Civ. Procedure. Appellant nowhere denies or contradicts said sworn statement. In fact on the second page of his brief on appeal appellant admits the truth of appellee’s statement. We quote from appellant's brief:

“The transaction was to finance Westbrook in building a house for sale, and it is undisputed that Westbrook only drew $13,650.86, * *

In his supporting affidavit appellee further swore as follows:

“That when I executed the note and deed of trust to KEMP LUMBER COMPANY in the sum of $15,000.00 for interim financing in connection with the construction of a house on the lot described in my previous affidavit, that it was my agreement that all I would owe of the $15,000.00 to CHARLES W. KEMP, d/b/a KEMP LUMBER COMPANY, cross-plaintiff in this action, was the sum of money that I actually borrowed from him plus interest, not to exceed $15,-000.00. That during the period of construction from time to time I borrowed certain sums of money that the total amount borrowed was $13,650.85, * * and that I instructed said title company to pay said sum plus any additional interest owed to fully pay off all sums borrowed as agreed from CHARLES W. KEMP.”

Appellant later on March 28, 1961, filed a controverting affidavit but he did not deny the above quoted averments in appel-lee’s affidavit. Having failed to controvert appellee’s affidavit in this particular, appel-lee’s statement must be accepted as true without dispute. Quarles v. Traders & General Ins. Co., Tex.Civ.App., 340 S.W.2d 545; American Motors Acceptance Corp. v. Heckerman, Tex.Civ.App., 332 S.W.2d 345; Sandone v. Dallas Osteopathic Hospital, Tex.Civ.App., 331 S.W.2d 476; Baxter v. Beaupre, Tex.Civ.App., 295 S.W.2d 718.

In Foxworth-Galbraith Lumber Co. v. Southwestern Contracting Corp., Tex.Civ.App., 165 S.W.2d 221, a fact situation arose similar in many respects to the situation here; and the court there held that “parties may make a note and deed of trust for a definite amount, on agreement that some or all of the money will be advanced at a later date; and that in such event the holder of the note and mortgage will have a valid lien to secure the amount of the money actually advanced, provided that it does not exceed the amount stipulated in the original note and mortgage, even though the mortgage does not expressly provide that it shall secure future advances(Emphasis ours.)

Harry W. Shawver, attorney for American Title Company, testified in court at the time of the hearing on the temporary injunction. The court later took this testimony into consideration in passing on the motion for summary judgment. We quote from Shawver’s testimony:

“Q Is the American Title Company in a position at this time to pay off in full the note held by Kemp, Mr. Kemp doing business as Kemp Lumber Company ?
“A It is.
“Q The principal and interest?
“A It is.
“Q Do you know what that figure is?
“A Yes, sir; I do.
“A These figures that I had written, given to me, were confirmed day before yesterday by Mr. William An-dress, Jr., on the telephone, by myself. * * *
“A I called Mr. Kemp and he would not give me a figure. It is customary for us to call the holder of the note at the time it is ready to be paid off, what the principal and interest balance -is, * * * we send the release to them, along with the check in the amount they have given us over the telephone; however, Mr. Kemp did not give me a figure. He said to call his attorney and trustee, William Andress, Jr. I did not call Mr. Andress, but my secretary did. I confirmed later these figures that had been given me. ⅜ * *
“Q All right, sir, what are those figures ?
“A The principal amount is thirteen thousand six hundred fifty dollars and eighty-six cents; the interest, two hundred forty-three dollars and sixty cents, as of December 2, 1960.
“Q All right, sir. Have you computed what the interest would be to date?
“A I have. At seven per cent interest — today is the fifteenth of December — for three days at two dollars and sixty-five cents per day, seven dollars and ninety-five cents, in addition to two hundred forty-three sixty.
“Q Is the American Title Company prepared at this time to pay Mr. Kemp in full, on the principal and interest of his note?
“A It is.”

Later Shawver made an affidavit which is attached to the motion for summary judgment in support thereof. In this supporting affidavit Shawver reiterates in substance the matters to which he earlier testified as above quoted.

In his controverting affidavit appellant does not deny the statements made by Shawver in this testimony and in his supporting affidavit. Nowhere does appellant’s attorney deny that he furnished Shawver the figures which Shawver accepted as the amount due appellant. Therefore Shaw-ver’s testimony and affidavit must be accepted as true.

It is undisputed that Shawver sent appellant a check for $13,913.01 together with a release to be signed by appellant. The latter kept the check'a few days, then .cashed it. But he did not execute and return the release.

In his controverting affidavit appellant says that the check was not tendered in full satisfaction of the note. This statement is made with reference to a matter to which appellant is hardly competent to testify, and is an allegation which is conclusively repudiated by the undisputed facts in connection with the check as hereinbefore set out, which facts appellant does not deny.

Appellant also states in his controverting affidavit that the amount of the check was “substantially insufficient” to pay the principal and interest accrued on the note. In the light of the undisputed facts this broad, general statement is in the nature of an erroneous conclusion. We repeat that nowhere does appellant deny Shawver’s testimony and his supporting affidavit that Shawver, acting as appellee’s agent in closing the sale of the property, was referred by appellant to his, appellant’s attorney to obtain correct information as to the amount due. Nowhere does appellant plead accident or mistake on his or his attorney’s part with reference to the correctness of the amount named by the attorney, which amount was used by Shawver in making out the check. We think that appellant, having authorized his attorney to furnish the figures in question, cannot now, in the absence of any plea of fraud, accident or mistake, create an issue of fact with reference to the matter. Appellant under the undisputed facts is bound by his own figures.

Appellant stresses the fact that the insurance policy was not returned to him. It is undisputed that appellee Westbrook made satisfactory arrangements with Employers Casualty Company so that the latter never did carry out its announced intention to cancel the insurance ten days from receipt of notice. It is further undisputed that appellant had actual notice and knowledge that Westbrook and the insurance company had made arrangements whereby the insurance was not to be cancelled. Thus West-brook beyond dispute performed his obligations to take out and maintain insurance on the house under construction.

Of course Employers Casualty Company was guilty of carelessness in failing to return the policy. But its failure to return the policy did not invalidate the insurance contract. Under the circumstances actual manual possession of the policy by the insured was not necessary to make the insurance contract valid and enforceable. Denton v. Kansas City Life Ins. Co., Tex.Civ.App., 231 S.W. 436; 44 C.J.S. Insurance § 265, p. 1055; 29 Am.Jur. 603, 605.

Appellant’s motion for rehearing is overruled.


author: CLAYTON, Justice.

text:
    John R. SULLIVAN, Appellant, v. A. M. BRININSTOOL and M. D. Brininstool, Appellees.
    No. 5521.
    Court of Civil Appeals of Texas. El Paso.
    June 13, 1962.
    Rehearing Denied July 11, 1962.

      Warren Burnett, Odessa, Ed Keys, Mon-ahans, for appellant.
    Dennison & Naylor, Pecos, for appellees.
   CLAYTON, Justice.

Appellant perfects this appeal from an adverse judgment of the District Court of Reeves County, Texas in which two causes of action were consolidated for the purpose of trial.

In the first cause of action, numbered 6239 on the docket of said court, appellees A. M. Brininstool and M. D. Brininstool brought suit against appellant to recover the alleged value of services rendered by them to appellant in connection with the drilling of an oil well in Reeves County. To this cause of action appellant replied by general denial, a plea of partial payment, and counterclaim. The counterclaim, by trial amendment directed to appellee A. M. Brininstool alone, alleged negligence on the part of the latter, breach of contract and damages in the amount of $10,000.00. Before the case went to the jury the court held as a matter of law that the appellee A. M. Brininstool was not an independent contractor, that the relationship of appellant to him was that of master and servant, and that there was no evidence to raise the question of willful or wanton negligence on the part of A. M. Brininstool. No issue was submitted to the jury under the counterclaim plead by appellant.

The second cause of action, bearing number 6240 in said court, was filed by appellee A. M. Brininstool alone against appellant Sullivan, alleging that the latter owed rentals to appellee amounting to $4,550.00 under a lease of a drilling rig belonging to appel-lee which appellant used in connection with his oil drilling operations; and further, that appellant had converted the rig to his own use, to the additional damage of appellee in the amount of $4,500.00. Appellant answered by general denial, and in the alternative, that he had bought the rig from ap-pellee for $2,500.00, upon which purchase price he owed a balance of less than one thousand dollars.

The consolidated actions were submitted to the jury on special issues. In answer thereto the jury found that A. M. Brinin-stool had not leased the rig to the appellant, nor had appellant converted the rig to his own use or benefit, but that the latter had entered into an agreement to buy the rig from A. M. Brininstool for $2,500.00. The jury further found that there was no agreement between appellant and the Brin-instools that they were not to be paid unless they worked until “bottom hole” was reached. Upon such findings the trial court entered judgment for A. M. Brininstool against appellant in the amount of $1,450.-00, representing the unpaid balance owing on the purchase price of the rig, with interest on such amount from June 27, 1957 The court also awarded amounts to each appellee as unpaid wages for their services to appellant.

Appellant’s first three points of error deal with what he terms the court’s action in granting “Appellees’ Motion for Summary Judgment” in connection with appellant’s counterclaim. As has been stated, before any issues were submitted to the jury the trial court ruled as a matter of law that ap-pellee A. M. Brininstool was not an independent contractor in his dealings with the appellant, but was the latter’s servant, and that no question of willful or wanton negligence of the said servant was raised by the evidence.

We are of the opinion that appellant’s pleading of his counterclaim does not sufficiently set out the proposition that the appellee A. M. Brininstool was an independent contractor. Stated in the most general terms, an independent contractor is defined as follows:

“When service is rendered in the course of an independent occupation, and the will of the employer is represented only as to the result of the work and not as to the means by which it is carried out or the details involved in its performance, the person rendering the service is an independent contractor. In other words, an independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right of control with respect to his physical conduct in performance of the undertaking. Ordinarily, he undertakes to perform a service with his own instru-mentalities according to his own means and methods or a previously agreed plan without being subject to the other’s orders or control with respect to the details of the work.” (30 Tex.Jur.2d, Independent Contractors, f[ 2, p. 475).

No specific allegation that Brininstool was an independent contractor, nor any language from which it could be fairly inferred that his relationship with appellant was that of an independent contractor, is embodied in the pleading. But should it be said that the language in appellant’s counterclaim was sufficient to establish an allegation that A. M. Brininstool was an independent contractor, we do not find any testimony of sufficient probative force to warrant the submission of a special issue to the jury on whether the relationship of A. M. Brin-instool to the appellant was that of an independent contractor. Without attempting to review the numerous authorities on the subject of such a relationship (see 30 Tex.Jur. 2d, Independent Contractors, I. and II.), suffice it to say that in our opinion the trial court was justified in ruling as a matter of law, from the evidence presented, that A. M. Brininstool was not an independent contractor but was the servant of the appellant.

Nor do we consider such ruling on the part of the court to have constituted the granting of a summary judgment. The ruling was made after the appellant had rested his case and while a discussion was being had concerning issues that might be submitted to the jury. A motion, presented orally on behalf of the appellee A. M. Brin-instool, was a motion for directed verdict on appellant’s counterclaim. The appellant excepted to the court’s ruling at the time it was made but at no time, in so far as we have been able to find, did appellant request the submission to the jury of an issue, or issues, on the relationship of the parties; i. e., independent contractor or master and servant. If such an issue or issues should have been submitted, the failure to do so is not a ground for reversal of the judgment, since the submission, in substantially correct wording, was not requested in writing and tendered by the appellant, the same not being issues relied upon by the appellee A. M. Brininstool. Under these circumstances, such issue or issues shall, on appeal, be deemed to have been waived. (Rule 279, Texas Rules of Civil Procedure).

Appellant urges, as being opposed to the “waiver” doctrine above set out, the holding in Dunagan v. Bushey et al., 152 Tex. 630, 263 S.W.2d 148 (S.Ct.1953), which expressly overruled holdings in the case of Tiblier v. Perez, 277 S.W. 189 (San Antonio Civ.App.1925), and Mendlovitz v. Samuels Shoe Co., 5 S.W.2d 559 (San Antonio Civ.App. 1928). The holding in the latter two cases was that where both parties request the court to instruct a verdict at the close of the testimony, it was tantamount to waiving a jury trial and submitting the issues to the court for its determination alone, foreclosing the right to have even independent grounds of recovery or defense submitted to a jury on special issues. The Supreme Court in the Dunagan case, in overruling the holdings as above indicated in the Tib-lier and Mendlovitz cases, held that the true rule on the point is stated in the case of Citizens Nat. Bank of Brownwood v. Texas Compress Co., 294 S.W. 331 (Civ.App.1927). The cited decision contains the following language:

“We are clear in the view that under our practice a party waives no right by moving for a directed verdict in his favor, and this regardless of whether the opposing party has made a like motion. When the request or motion is denied, he stands in the same attitude, as regards the further progress of the trial, as if no motion had been made. (Emphasis supplied).

This rule is approved in other cases cited by the Supreme Court in the Dunagan case. The Citizens National Bank case, furthermore, contains language especially pertinent to the case at hand, and therefore is quoted as follows:

“In a trial by jury on special issues there must be an affirmative finding on every issue necessary to support the judgment. The power of the judge to make findings where none are submitted or requested does not extend to inr-dependent grounds of recovery or defense, but only to incidental or subsidiary findings necessary to support the judgment in connection with the issues in fact submitted to and found by the jury. A party may waive an issue upon which he relies for recovery or defense by not requesting its submission. In such case the issue is treated as abandoned, and goes out of the case. There is no affirmative finding made thereon, and the judge is not given the power to make such affirmative finding, merely because the opposing party, upon whom no duty in that regard rests, has not requested its submission. The duty to request issues under any circumstances extends only to those respectively which are essential to the cause of action or defense of a party.” (Emphasis added).

This language, rather than being opposed to the “waiver” doctrine and to the provisions of Rule 279, T.R.C.P., appears to expressly support them.

Appellant’s Points One, Two and Three are accordingly overruled.

Appellant’s fourth point is directed against that portion of the judgment which allowed interest on the unpaid balance owing on the oil well rig from June 27, 1957, asserting that interest should have been allowed only on such balance from the date the judgment was entered, that is, October 13, 1960.

The memorandum of agreement between appellant and A. M. Brininstool, upon which the jury based its finding that the rig had been sold to appellant, reads substantially as follows :

“I, A. M. Brininstool and John R. Sullivan on April 17, 1957, made an agreement on a Super D Fort Worth Spudder. Sullivan to move rig from a ranch 100 miles Northwest of Roswell, New Mexico, to the lease in Reeves County, Texas, for the use of rig on the first well. If he finds oil in said well, Sullivan is to pay A. M. Brininstool $2,500 for rig and nothing for moving rig and tools. A. M. Brin-instool.”

Appellant concedes in his testimony that the production of oil in the first well on which the rig was used was completed on June 27, 1957. On that date, therefore, under the terms of the agreement between the parties, the purchase price of the rig became a fixed liability of appellant to A. M. Brininstool and was due and payable. The agreement between the parties did not provide for the payment of interest on any unpaid balance of the purchase price, but we feel that the provisions of Article 5070, Vernon’s Ann.Civ.St, are applicable, and that, as in this case, “when no specified rate of interest is agreed upon by the parties, interest at the rate of six per cent per an-num shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable; * *

We hold, therefore, in overruling appellant’s fourth point of error, that the trial court acted properly in allowing interest at the rate of six per cent per annum on the unpaid amount of the purchase price of the rig, beginning on June 27, 1957. The evidence reflects that the original purchase price of $2,500.00 had been reduced by payments from the appellant to A. M. Brin-instool totaling $1,050.00, leaving a balance due and owing of $1,450.00, which was the amount on which the court allowed interest beginning on June 27, 1957. While additional interest may have been owing in accordance with a different method of calculation, we find that the appellee A. M. Brininstool was claiming only the amount as allowed by the court and therefore he was not prejudiced by the court’s finding in this respect.

Finding no error in the trial court’s judgment it is hereby in all things affirmed.