text:
    Richard Steven SHARP, Appellant, v. The STATE of Texas, Appellee.
    No. 40810.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1967.

      Jack Hampton, Dallas (on appeal) for appellant.
    Henry Wade, Dist. Atty., Tom Reese, Charles Caperton and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for burglary; the punishment, nine years.

The sufficiency of the evidence to support the conviction is challenged.

The testimony of the state reveals that the house of Joseph Darrow Bass was burglarized about 3 p. m., June 17, 1966, and that no consent was given anyone to enter the house or to take property therefrom; that two transistor radios, watches, earrings, and other jewelry including a diamond brooch about the size of a fifty-cent coin which was bordered with thirty-six diamonds were taken from the house. The police were notified immediately and came to the scene.

The owner of a pawnshop testified that on June 18, 1966, two men came into his store and tried to sell him a diamond brooch; and at this time detectives Trant-ham and Talbert entered the store and he asked them to check the brooch to see if it was all right.

Detectives Trantham and Talbert arrived at the pawnshop about 3 p. m., June 18, 1966, and after talking with the owner approached two men in the store. The appellant was identified at the trial as one of the two men, and when the appellant and the other man, identified as George Bell, were approached by the detectives and asked for the jewelry they were trying to sell, the appellant handed Officer Trantham a lady’s diamond brooch about the size of a fifty-cent coin, containing about 32 diamonds; that after examining the brooch Detective Talbert recalled that such a brooch had been reported stolen from the Bass residence. When the two officers entered the store one of the two men turned to the other and using an obscene word was heard to say, “_ the police.”

Upon a search of the appellant at the police station, one earring was found in the lining of his coat and the other in the chair where he had been sitting.

In executing a search warrant for appellant’s residence, Officers Talbert and Watts found some men’s cuff links, ladies’ jewelry, and one transistor radio.

Mr. and Mrs. Bass identified the recovered property described above including the diamond brooch as belonging to them and which was taken from their house.

The appellant did not testify, but called Francis Carroll Lancaster, who testified that he, alone, burglarized the Bass house; that he took two radios and some jewelry including earrings and a brooch; that he gave some of these articles to appellant’s wife, and kept the remainder. Some of the Bass property was found in Lancaster’s apartment and a part of it at two other places.

Appellant’s wife testified that he was sick in bed all day June 17, 1966, and never left their home; that Lancaster came by their home about 7:30 p. m., that day and gave her a radio, 3 watches, and some jewelry, that she did not know that the brooch he gave her contained any diamonds; that she and her husband did not know that these articles were stolen or had any value, and the appellant, the next day, June 18, went to see about their value.

Although, appellant’s witness Lancaster testified that he, alone, committed the burglary alleged, that his testimony is inconsistent with and excludes the guilt of the appellant, it raises no more than an issue of fact. Miles v. State, Tex.Cr.App., 413 S.W.2d 389.

The appellant made no explanation of his possession of the brooch when approached by the officers at the pawnshop.

The unexplained possession of part of the recently stolen property from the burglarized house is sufficient to authorize a jury to convict the possessor of the property for the burglary. 4 Branch 2d 866, Sec. 2537.

The evidence is sufficient to warrant the jury’s finding that the appellant is guilty as charged.

In appellant’s brief, error is urged on the ground that the state improperly impeached appellant’s witness, Lancaster, on cross-examination as follows:

“Q (By State’s Counsel) The police didn’t believe you, did they?
“A I don’t know if they did or not. They wouldn’t give me a lie detector test.
"Q Wouldn’t what ?
“A They wouldn’t give me a polygraph test.
“Appellant’s Counsel: At this time, I’ll move for a mistrial.
“The Court: Overruled.
“Appellant’s Counsel: Please note our exception.
“State’s Counsel: It’s his witness.
“Q (Continuing) The Grand Jury didn’t believe it, did they ?
“Appellant’s Counsel: We wish to object to that.
“State’s Counsel: Well, he was indicted; you’ve got sense, don’t you?
“The Court: I sustain the objection and instruct the Jury not to consider it.
“Q (Continuing) Just because he’s indicted don’t make him guilty ?
“The Court: You don’t need to answer that.”

It is evident that no grounds were given for the mistrial motion, and none were stated in support of the purported objection. No error is presented.

The following cross-examination of the defense witness, Lancaster, is urged as a ground of error in appellant’s brief:

“Q Well, you’re again down in Huntsville on another burglary case, aren’t you?
“A Yes, I am.
“Q So, since April of 1962, you have been down there to Huntsville three times for burglary, haven’t you?
“A Yes, I have.
“Q How many years are you down there for this time ?
“A Ten.
“Q What’s your earliest release date?
“A 1972.
“Q That’s your earliest release date with your good time and everything?
“A Yes, sir.
“Q Now, you know I know better than that.
“A Six years to ten years’ sentence, do you know better ?
“Q How long did you do on that two-year sentence?
“A Sixteen months and twelve days.
“Appellant’s Counsel: Your Honor, I’m going to object to his going into this.
“The Witness: He wants to cut me up.
“Appellant’s Counsel: It’s extraneous to the case at hand.
“The Court: Overruled.”

The cross-exmination and the objection shown does not present error.

A fatal variance between the alleged name of the owner of the house as Joseph Darrow Bass and the proof that his name was in fact Joseph Barrow Bass is urged as a ground of error.

The error in alleging the middle name as urged is immaterial and reveals no error. 40 Tex.Jur.2d 374, Sec. 4; Ex parte Mackerman, Tex.Cr.App., 376 S.W.2d 350.

In his brief, the appellant contends that it was reversible error to permit the state to cross-examine the defense witness, Lancaster, about improper relations with the appellant’s wife.

Lancaster testified that he never kept company with appellant’s wife but that he had given her and the children gifts. The wife testified, without objection, that Lancaster had given her a radio, and jewelry including the brooch. No error is shown.

Complaint is made that the state, in its closing argument to the jury, commented on the appellant’s failure to testify. The argument was as follows:

“(By Mr. Reese) * * *
I’m a little bit surprised when Mr. Green and Mr. Moore say that they know in their minds and hearts that this man is not guilty. They can’t know that any more than I do. They don’t know. They may know more about this case than I do but what you have heard is what they wanted you to hear about this case. Now, when I say that you have heard everything there is about this case, that’s not true because for it to be true, it would mean that he would not make one single objection to any testimony.
“Mr. Green: Your Honor, I object to his argument.
“The Court: I’ll sustain the objection and instruct the Jury not to consider about objections.
“Mr. Reese: Let me say this about it. We brought you all the evidence that the law will let us bring within the confines of his objections. He says there is no fingerprints. If you don’t leave any fingerprints, you don’t get any fingerprints. You know that place was burglarized; you know somebody was in there. There were no fingerprints, does that mean that there was no burglary, that nobody went in there and stole that property. If you don’t believe that Bass lost anything then there is nothing I can do about that. * * * ”

In the light of the purported objection which stated no grounds, and the court’s ruling and instruction to the jury not to consider the argument about objections, no error is shown.

The other grounds urged as error have been carefully considered and they do not reveal error.

The judgment is affirmed.


source: Caselaw Access Project

author: ONION, Judge.

license: Public Domain

text:
    Samuel J. ANDERSON, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 40963.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1967.
    R. J. Balch, Seymour, for appellant.
    Clyde Whiteside, Dist. Atty., Seymour, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from an order revoking probation.

This appeal must be dismissed for want of a sentence imposed after revocation of probation. See Article 42.04, V.A.C.C.P.

Under the former Article 781d, Sections 1 and 3, V.A.C.C.P., the trial court in granting adult probation was authorized to suspend either the imposition or the execution of the sentence. Cf. Article IV, Section 11A, Texas Constitution, Vernon’s Ann. St.

Under such statute (Art. 78 Id, supra) when the court suspended the imposition of the sentence, no sentence was ever imposed except upon revocation of probation. This procedure was similar to the Suspended Sentence Law, former Articles 776-781, V.A.C.C.P. (now repealed). See also Ex parte McCarter, Tex.Cr.App., 415 S.W.2d 409. Where the court used the other method, the sentence was actually imposed but the execution or carrying out of the sentence was suspended and the defendant released subject to conditions and terms of probation. Upon revocation of probation under this method, the trial court would order that the sentence previously imposed be carried out without the necessity of sentencing the defendant at that time.

The procedure suspending the imposition of the sentence in probation cases entailed less paper work and did not present the same problems on any subsequent cumulation of sentences as the suspension of the execution of the sentence method. See Ex parte McCarter, supra; Ex parte Minor, 167 Tex.Cr.R. 170, 319 S.W.2d 114; Ex parte Tucker, 168 Tex.Cr.R. 308, 325 S.W.2d 703; Ex parte Scott, 168 Tex.Cr.R. 353, 328 S.W.2d 190; Ex parte Rutherford, 171 Tex.Cr.R. 302, 350 S.W.2d 31; Ex parte Downey, 171 Tex.Cr.R. 296, 350 S.W.2d 20; Ex parte Hernandez, Tex.Cr.App., 364 S.W. 2d 688; Ex parte Green, Tex.Cr.App., 375 S.W.2d 312; Ex parte O’Connor, Tex.Cr. App., 394 S.W.2d 815.

Under the provisions of Article 42.12, Sections 1 and 3, 1965 Code of Criminal Procedure, the court, in placing a defendant on adult probation, is authorized only to suspend the imposition of the sentence. The method of suspending the execution of the sentence is no longer available to him.

The record reflects that the appellant waived trial by jury and entered a plea of guilty before the court to the offense of felony theft on January 17, 1967, and was assessed punishment of three (3) years confinement in the Texas Department of Corrections. Such trial commenced after the effective date of the 1965 Code of Criminal Procedure. On the same date as the plea of guilty the court entered an order suspending the imposition of the sentence and placing the appellant on probation subject to certain conditions and terms. On this same date it appears the court also actually imposed sentence. Such sentence was a nullity, it being the clear intent of the court to grant the appellant probation. Cf. Ex parte McCarter, supra.

The order revoking probation following a hearing was entered on May 5, 1967, and authorized the sentence previously imposed to be carried out as if no probation had been granted.

Such sentence being unauthorized at the time it was imposed, Article 42.12, supra, the court’s order that the previously imposed sentence be carried out is of no effect.

No sentence appearing in the record following revocation of probation, the appeal is premature and is dismissed.

      . The exception to the necessity of a sentence on appeal in a probation case contained in such article relates to an appeal at the time probation is granted, Article 42.12, Section 8, V.A.C.O.P., and not to an appeal from a revocation of probation.


author: PER CURIAM. WOODLEY, Presiding Judge.

text:
    Robert Lee MINK, Appellant, v. The STATE of Texas, Appellee.
    No. 40737.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1967.
    On Motion to Reinstate Appeal Dec. 6, 1967.

      Chappell & McFall, by John R. McFall, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

PER CURIAM.

The offense is Driving While Intoxicated; the punishment confinement in the county jail for three (3)~ days and by a fine of $135.00.

Sentence was pronounced on February 2, 1967, and notice of appeal was given on March 6, 1967.

Notice of appeal was not given within the time prescribed by Article 44.08(c), Vernon’s Ann.C.C.P., and there is nothing in the record to show that the trial court for good cause shown permitted the giving of such notice after the ten (10) days allowed had expired.

The appeal is dismissed.

OPINION

ON APPELLANT’S MOTION TO REINSTATE APPEAL

WOODLEY, Presiding Judge.

It is shown by supplemental transcript that the trial judge permitted appellant to give notice of appeal after the expiration of 10 days from the date of sentence.

The motion to reinstate the appeal is granted.

No brief for appellant has been filed setting forth any ground of error and we find none which should be reviewed in the interest of justice. See Art. 40.09, Sections 9 and 13, V.A.C.C.P.

The judgment is affirmed.


author: BARRON, Justice.

text:
    DEALERS NATIONAL INSURANCE COMPANY, Appellant, v. Albert D. SIMMONS, Appellee.
    No. 25.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Nov. 8, 1967.
    Rehearing Denied Nov. 29, 1967.

      John H. Benckenstein, Benckenstein & Norvell, Beaumont, for appellant.
    Newton B. Schwartz, Houston, for appel-lee.
   BARRON, Justice.

Albert D. Simmons, plaintiff in the trial court and appellee here, was an employee of Joe Bailey Martin. Joe Bailey Martin operated a wholesale beer distributing business in Trinity, Texas. He, Martin, also oprated a ranch in Walker County, Texas. Simmons’ principle duties were those of a ranch worker; but he did, from time to time, do some work connected with his employer’s beer distributing business.

The employer, Martin, carried a workmen’s compensation policy with the appellant, defendant in the trial court, for the protection of his workers in the beer distributing business. He also, by way of an endorsement on his workmen’s compensation policy, carried voluntary workmen’s compensation insurance providing for coverage of his farm, ranch, and other agricultural employees.

On December 25, 1964, Simmons allegedly sustained an injury while driving his employer’s truck to the employer’s ranch to feed cattle. Simmons filed a claim for workmen’s compensation with the Industrial Accident Board seeking the statutory compensation benefits for disabilities resulting from the injuries sustained. From an adverse ruling of the Industrial Accident Board he duly perfected his appeal to the trial court. In the trial court he alleged he was an employee entitled to benefits under the statutory workmen’s compensation policy carried by his employer with appellant for the protection of his workers in the beer distributing business. He alleged, alternatively, that he was a ranch hand and entitled to the benefits of the voluntary workmen’s compensation insurance carried by his employer in the endorsement upon the statutory policy.

The evidence, when viewed retrospectively, shows rather clearly that Simmons was a farm or ranch employee and was not an employee in the beer distributorship. After the close of the testimony in the trial court, Simmons abandoned his claim under the statutory policy and sought recovery only under the voluntary coverage. The jury found that he had sustained an accidental injury, as alleged by him, which was a producing cause of total and permanent disability and that he had necessarily incurred reasonable hospital, drug, and medical expenses for the treatment of those injuries in the reasonable amount of $4,270.13. The trial court rendered judgment for the plaintiff in the lump sum of $14,035.00 for his disabilities, together with the amount of the medical expenses found, making a total of $18,305.13. The trial court judgment provided for interest on such sum at the rate of 4% per annum.

From this judgment, Dealer’s National Insurance Company, the defendant, has perfected an appeal to this court.

The parties will be referred to as in the trial court.

Defendant first contends that the trial court erred in overruling its motion for judgment non obstante veredicto, because plaintiff did not introduce into evidence any special policy covering voluntary compensation protecting ranch workers. The evidence shows, however, that the employer, Martin, was by proper subpoena, requested to produce the policy with the endorsement. He testified at the trial that he had destroyed the policy after its expiration date in April, 1965. Plaintiff also issued similar subpoenas to counsel for the defendant, a Mr. Weyland, owner of Lumberman’s Insurance Agency of Lufkin, Texas, and J. C. Hinson, a safety engineer with Lumberman’s Insurance Agency, which agency sold the insurance to Martin. A subpoena was issued also to Ken Gates, a company claims adjuster. Furthermore, plaintiff, in his original petition filed in this cause, made demand for production of the policy on May 6, 1965, approximately 21 months prior to the trial of the case on January 30, 1967. This was all to no avail. Hinson did, however, produce a copy of a “daily” and a copy of the voluntary endorsement, upon which plaintiff relied. Both instruments were introduced in evidence without objection. Mr. Martin, the employer, testified that in 1964, defendant company had issued to him policies of workmen’s compensation insurance to cover his ranch workers in addition to the statutory policy; that he paid the premiums therefor, and that after the policy had expired, he destroyed it. He testified that the policy was in full force and effect on December 25, 1964, when Albert Simmons was injured.

We believe that the facts are sufficient to show that the policy was issued and was in effect on the date of the alleged injury, and that the facts are sufficient to show the necessary provisions of the policy, especially of the voluntary compensation endorsement. Commonwealth Casualty Co. v. Coogle, 31 S.W.2d 362 (Tex.Civ.App.), no writ; 37 Tex.Jur.2d, p. 477, Sec. 4.

By its first, second, fourteenth and fifteenth points of error defendant contends that the trial court erred because plaintiff did not satisfy the conditions precedent allegedly contained in the voluntary endorsement, and that there is no evidence to support the trial court’s findings in the judgment that plaintiff stood ready and willing to execute the necessary conditions and requirements of paragraph 4 of the voluntary endorsement. Paragraphs four and five of the voluntary endorsement are as follows:

(4) "The benefits payable under coverage C on account of such injury shall be paid to such person or persons as would have been entitled thereto under the designated workmen’s compensation law, provided, however, that as a condition precedent to any such payment the injured employee * * * shall (1) execute such full and binding release of all claims against the insured and the company on account of such injury or death as may he required by the company, and (2) assign to the company all claims or judgments or the proceeds thereof which he or they may have or recover against any person who or organization which is or may be liable on account of such injury or death and execute such other documents as the company may require to enable it to enforce such rights or collect such proceeds * * * (5) If any person entitled to payment under coverage C shall refuse to accept such payment and to comply with the terms and conditions set forth above or if any person shall commence any proceedings at law, in equity or in admiralty, except for such payment, seeking damages from the insured or the company on account of such injury, the company’s liability under coverage C with respect to such injury is thereupon terminated.” (Emphasis added).

It will be noted that the so-called conditions precedent contained in paragraph 4 deal with the performance of such conditions prior to payment of the policy. In defendant’s original answer, filed May 20, 1965, the defendant included a sworn denial that a special policy of workmen’s compensation insurance had ever been issued. Defendant contends that plaintiff’s failure to use the word “voluntary” justified such position. We do not agree. Moreover, in defendant’s first amended original answer, upon which it went to trial, defendant filed a sworn denial of all of plaintiff’s allegations, which included plaintiff’s claim that the voluntary endorsement was in effect. The defendant made no offer or tender of any payment at any time. The trial court in its final judgment recited that the plaintiff stands ready and willing to execute all necessary documents required by paragraph 4 of the endorsement concerning matters of releases and assignments before payment is made. We believe the trial court dealt properly with this matter. Plaintiff could not be expected vainly to deliver to defendant a full release of all claims and make an assignment of his interest when defendant had continuously denied the existence of such a policy. The insurance company has not ever, so far as the record reflects, even considered making payment. It would be unreasonable to construe paragraph 4 of the voluntary endorsement as a condition precedent to liability of the company under such circumstances without an offer of payment as provided in the endorsement. The endorsement is clear on this point. It is settled law in this State that policies of insurance will be construed liberally in favor of the insured and strictly against the insurer when such construction is reasonable. Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379, 381; 32 Tex.Jur.2d, p. 121, Sec. 60. Defendant’s points of error are overruled. The provisions of paragraph 4 of the endorsement must be complied with before payment and not before the filing of suit.

Defendant further contends that the filing of the statutory workmen’s compensation claim terminates defendant’s liability under the voluntary policy. Plaintiff did not file a common law action for damages against either the company or the employer, Mr. Martin. We overrule this contention for two reasons. First, the company did insure Mr. Martin against his employees’ on-the-job injuries, both under the workmen’s compensation law and under a contract of voluntary compensation. Plaintiff had no means of determining whether he was a workman in the beer distributing business or was a ranch worker. He performed both jobs at times. Plaintiff filed suit on both counts. He had the right to do so after it was shown that defendant issued Mr. Martin both types of insurance. Plaintiff was not bound to assert a claim on only one phase of the policy when, in effect, two policies were issued by the company. In Travelers Ins. Co. v. Brown, 402 S.W.2d 500, 502 (Tex.Sup.), the Supreme Court said:

“The contract of insurance between Travelers and Ranch Management, Inc., was a contract for the benefit of third persons, unregulated by the Workmen’s Compensation Law. The right of Brown to benefits provided in the policy is conferred and limited by the terms of the contract. * * * Section 5 of Coverage C (as in this case) expressly provides that ‘if any person shall commence any proceeding at law * * * seeking damages from the insured * * * the company’s liability under Coverage C * * * is thereupon terminated.’ The provision does not allow of an election; it terminates the liability of the insurer if a suit for damages is commenced.’’ (Parenthesis added).

In Brown, the Supreme Court had before it the question of whether another suit had been commenced. In that case a common law action for damages had been filed by Brown, but the suit had been dismissed with prejudice three days before the hearing in the Brown case. The Supreme Court held that the proof did not show that another suit had been commenced and citation served or answer made within the meaning of the policy. The Supreme Court further said that the only purpose of the provision (paragraph 5) was to avoid the necessary expenditure of time and money in preparing to defend a damage suit, only to be required thereafter to make compensation payments or to expend further time and money in the defense of a suit in which the issues are entirely different. In the case at bar, the issues were neither different nor would additional time and money be required further to defend a lawsuit. Further compensation payments could not be required. Here the action was essentially, the same. Two types of employment were involved. The only difference in plaintiff’s actions was the type of work done by plaintiff; whether he was a ranch worker or a beer truck driver and helper. Coverage existed in one case and did not exist in the other. All of the insurance was included in one policy. The special issues submitted to the jury would have been identical except for the fact that the jury was asked whether Simmons was a ranch laborer for Joe Bailey Martin. He had to be either a ranch laborer or a helper in the beer business. We hold that paragraph 5 above was not violated, and that no additional action was commenced against the company within the meaning of the policy which might result in a double recovery in favor of plaintiff.

Secondly, defendant went to trial on a pleading which did not specifically deny coverage on the ground of the filing of another suit. In its pleading it alleged :

“Further specially answering here, Defendant alleges that the Plaintiff has never unequivocally accepted the benefits of any voluntary compensation policy, released all his possible cause or causes of action for tort, and performed the conditions precedent upon his part to be performed, and he cannot claim any benefits or compensation thereunder. (Emphasis added).

This pleading is insufficient to apprise the plaintiff that such defense would be urged. There is nothing in the verified answer claiming an avoidance of the policy by reason of the alleged filing of another suit which is specific enough to raise the defense. It is therefore- waived. Rules 54 and 94, Texas Rules of Civil Procedure; Reid v. Associated Employers Lloyds, 164 S.W.2d 584 (Tex.Civ.App.), writ ref.; 45 Tex.Jur. 2d p. 480, Sec. 63. There is nothing in the record to show that this issue was tried by consent.

Defendant complains of the finding of the jury that Albert Simmons sustained a personal injury to his body at the time and place in question and says that such finding is against the great and overwhelming weight and preponderance of the evidence and is not supported by sufficient evidence. We have reviewed the entire record to determine the correctness of these assignments. See Fisher Const. Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126.

Albert Simmons testified that Mr. Martin sent him to the ranch to do some work on the morning of December 25, 1964. He drove through the gate of Mr. Martin’s ranch and stopped 30 or 40 feet inside. He walked back to close the gate after stopping the truck in an uphill position. He went back, got into the truck and started the motor. As he started to go forward, the truck jumped and the motor went dead. The truck suddenly started to move backward and the brakes would not hold. As the truck moved backward he looked back to see what was happening, and the truck hit the gate post causing the left door to fly open. As the door opened it suddenly snapped back and struck the plaintiff on the right side of the head above the ear. The blow was hard and it knocked the plaintiff unconscious. He fell to the ground, and plaintiff did not remember anything further for a period of two or three weeks. He was taken by his wife to John Sealy Hospital at Galveston where he remained until March 28, 1965. There were no other witnesses to the accident. Houston McCorley, a postal employee, drove by the ranch, saw plaintiff on the ground, and asked what the trouble was. Plaintiff said he was sick. Plaintiff was rubbing his head and said that he had a terrible headache. He was in a dazed condition. He told McCorley that he got sick feeding the cattle, according to McCorley. McCorley did not see the pickup truck at the gate. Plaintiff did not mention anything to McCorley about a wreck with the pickup. Mr. Martin, the employer, found the pickup truck parked about halfway between the barn and gate, about 300 yards from the gate. There were no signs of damage to the back of the truck or the back bumper according to Martin.

Dr. Cole, a Huntsville physician who treated plaintiff, testified that he doubted that Simmons’ statement concerning his injuries was completely reliable. Nevertheless, plaintiff was knocked unconscious by the accident, and the reliability of statements as to what happened made a short time after the injury could not be determined. Dr. Coe, who treated plaintiff at John Sealy Hospital, testified that the blow on Simmons’ head resulted in a hematoma, causing temporary or partial paralysis, which apparently cleared up once the mass and the pressure were removed by surgery. He further testified that the accident as described by plaintiff clearly could cause the resulting injury and that he treated plaintiff accordingly. The injury was severe, and plaintiff’s brain was damaged to the extent that he suffered permanent abnormality in that area, resulting in psy-chomotor attacks and probable seizures. His eyes were affected and his mental condition was impaired.

Plaintiff, in our opinion, gave a complete and rather detailed account of the accident occurring on Christmas morning of 1964. The severity of the blow on his head prevented a prompt and accurate report of the incident in detail. The evidence is conflicting and somewhat inconsistent. But we believe the testimony of Albert Simmons is credible, considering the fact that he is an uneducated Negro man who was a faithful servant of Mr. Martin. He never questioned Mr. Martin’s orders and was not known to misrepresent facts or violate his trust. We believe the jury in this case was warranted in finding that the plaintiff did sustain an injury to his body on December 25, 1964, and that such finding is amply supported by the testimony. Such a finding is exclusively within the province of the jury, and this Court’s duty is to permit the finding to stand if possible. The evidence is sufficient. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We overrule defendant’s contention that reversible error was committed by the trial court in failing to give the instructions set out in new Rule 226a, effective January 1, 1967. The instructions were clearly given to the jury as required by the Rule so far as the written charge is concerned. But apparently the trial court overlooked giving the remaining instructions, including the oral admonitions. No objection was made to his omission until defendant’s motion for new trial was filed. The error is waived by failure to timely complain of same. Barron v. State, 378 S.W.2d 144 (Tex.Civ.App.), no writ; Strickland v. City of Friona, 294 S.W.2d 254, 258 (Tex.Civ.App.), writ ref., n. r. e.; Rule 434, T.R.C.P. While compliance with Rule 226a is important, we do not believe a party had the right to remain silent, and after judgment is entered against it, claim reversible error by such omission.

Error is claimed by reason of jury misconduct. The jury deliberated more than three hours. Complaint is made that one of the jurors gave an example by comparison of a relative’s reactions to a type of epilepsy, about which Dr. Cole had testified generally. The statement consumed about two or three minutes. Another juror at a different time stated that he would not hire plaintiff on a job. Another juror stated that the hospitalization insurance form signed by Dr. Cole was not valid unless the doctor had a duplicate to back it up and that the juror had filled out one for her maid and the doctor’s signature was on the form. While the statements by jurors above were improper, we believe they can be considered merely passing remarks and do not constitute reversible error. They were mere statements during deliberation and no further comment was made concerning them. The foreman repeatedly read the charge to the jurors and stated that they just consider only the evidence in the case. Defendant offered the testimony of only six of the jurors and one of them did not hear any of the statements. In the case at bar we are not confronted with any violations by the jurors regarding their personal experiences. Neither are we confronted with facts concerning what the jurors had heard others say.

Under Rule 327, a party seeking a new trial because of misconduct of a juror has the burden of establishing to the satisfaction of the court that it reasonably appears from the evidence both on the hearing of the motion and the trial of the case, and from the record as a whole, that injury probably resulted to him. St. Louis Southwestern Ry. Co. v. Gregory, 387 S.W.2d 27 (Tex.Sup.). Casual improper remarks made by jurors during deliberation are harmless where there is no evidence that the jurors related these remarks to the case before them. Spear v. Central Distributing Co., 384 S.W.2d 180 (Tex.Civ.App.), writ ref., n. r. e.; Sims v. McKnight, October 11, 1967, 14th Court of Civil Appeals, 420 S.W.2d 173; Baird’s Bread Co. v. Hearn, 300 S.W.2d 646 (Tex.Sup.). We do not believe that the above brief statements, considering the length of the deliberations and the entire record in this case, resulted in any probable injury to defendant. We therefore overrule these points of error.

Defendant complains that the trial court erred in rendering judgment for plaintiff in the amount of $14,035.00 and in failing to allow defendant a discount of four percent compounded annually as provided by Article 8306, Sec. 15 and Article 8306a. We sustain this point. The Workmen’s Compensation Law applies insofar as interest is concerned. The judgment of the trial court is reformed to provide for a discount on $14,035.00 for timely payment at four (4%) percent, compounded annually.

The judgment of the trial court, as reformed, is affirmed.

On Motion for Rehearing

On motion for rehearing, Dealers National Insurance Company, appellant, complains of our statement in the opinion herein that appellant in his first amended original answer filed a sworn pleading denying all of appellee’s allegations. After re-examining the pleadings, we find that the appellant is correct.

While appellant attached an oath to the first amended original answer filed by it, it limited the oath to Sections II and III, pages 1-2 thereof, not material here, and did not extend its verifications to all of the allegations. Appellant denied that the voluntary endorsement was in effect, but it was not denied under oath in the amended answer. We accordingly correct any reference to verifications in the amended answer.

Remaining convinced that this case was correctly decided we overrule appellant’s motion for rehearing with the above corrections.

It is so ordered.


author: PHILLIPS, Chief Justice.

text:
    Ruth DAVIS, Appellant, v. Oletta Maydelle Davis CORABI et al., Appellees.
    No. 11550.
    Court of Civil Appeals of Texas. Austin.
    Nov. 22, 1967.
    Rehearing Denied Dec. 13, 1967.

      Max P. Flusche, Jr., R. B. Thrasher, Austin, for appellant.
    McClain & Stump, W. R. Stump, Joe B. McMaster, Georgetown, for appellees.
   PHILLIPS, Chief Justice.

This is a suit for declaratory judgment tried before the court without a jury to construe the will of Mrs. Crotis Davis, deceased. The plaintiff below, and the appellant here, alleged that she, as surviving widow of the life tenant, son of Mrs. Crotis Davis, was an heir under the terms of the abovementioned will and entitled to an interest in certain lands owned by Mrs. Davis. The defendants below and the appellees here, are children of the life tenant son of Mrs. Davis, and assignees of said children.

The principal question before the Court is the meaning of the words “heirs at law” as used in Mrs. Davis’ will. Appellant contends that these words include her as the surviving wife of the life tenant, son of Mrs. Crotis Davis, while appellees contend that these words as used in the will were intended to mean “children.”

The trial court found for appellees with respect to the meaning of the words “heirs at law” in this particular will and also rendered judgment in support of appellees’ pleading of three years adverse possession and of certain of appellees’ pleas of estop-pel.

We affirm the judgment of the trial court in respect to his construction of the will thus making it unnecessary for us to pass on the remainder of the judgment.

Appellant is before this Court on three points of error, the first two, briefed together, are, one, the error of the court in finding and concluding that the testatrix, Mrs. Crotis Davis, in making her last Will and Testament used the term “heirs at law” as meaning “children,” then secondly, the error of the court in failing to find that Mrs. Ruth Davis was, as a matter of law, an heir at law of her deceased husband, Mason Davis.

We overrule these points.

The abovementioned will of Crotis Davis was executed when she was a widow, dated January 21, 1933 and probated in the County Court of Williamson County, Texas, on October 15, 1935. Crotis Davis was born September 18, 1873 in Williamson County, Texas and was married only one time, and then to E. A. Davis, who died March 12, 1931. Crotis Davis had only one child, a son, Mason Davis, born to her as a result of said marriage. He was born October 20, 1897.

Mason Davis, the only child of Testatrix, was married three times. His first marriage was to Mamie Jewel Davis. Of this marriage, two children and only two children were born: Oletta Maydelle Davis Corabi, born May 30, 1918 and Geneva Lee Davis Keith, born April 13, 1925, both of whom are appellees in this law suit. No child or children were ever adopted by said Mason Davis.

Mamie Jewel Davis filed for a divorce against Mason Davis, and was granted a divorce September 18, 1930. About two months thereafter Mason Davis and Mamie Jewel Davis were remarried. No children were born of this marriage. Crotis Davis knew of the divorce when she executed the will in question.

In the year 1931, E. A. Davis, father of Mason Davis, husband of Crotis Davis died, intestate and Mason Davis inherited from him part of the land claimed by appellant in this law suit.

About two years later, Mamie Jewel Davis filed a second divorce petition against Mason Davis, and it was granted January 2, 1933. Crotis Davis knew about this divorce and the marital difficulty her son had been having with his wife.

On January 21, 1933 (19 days after Mamie Davis divorced Mason Davis) Mason Davis by deed conveyed property which he had inherited from his father, E. A. Davis to his mother, Crotis Davis and, on the same date, Crotis Davis executed the Last Will and Testament involved in this law suit.

This will was prepared by J. C. Wallace, a country banker at Leander, Texas. J. C. Wallace was not an attorney. J. C. Wallace had known Crotis Davis and her son Mason Davis since 1922, and also knew Mrs. Cora-bi and Mrs. Keith from the time they were small children. The will, omitting the portions not applicable to this appeal, was as follows:

“SECOND
I give to my son, Mason Davis, all of my estate, both real and personal during his life time. And at his death I give and bequeath the remaining part of my estate to his then living and surviving heirs at law, to share equal and alike, after all of his just debts have been paid.
THIRD
I constitute and appoint my son, Mason Davis, sole executor of this my will and at his death I appoint his oldest living child as the executor or executrix as the case may be, of this will and I direct that no bond be required of them as such executors.
FOURTH
It is understood and I hereby direct that none of my estate, consisting of real estate, shall be sold or mortgaged during the life of my son and after it has passed to his then living heirs at law until his youngest child has attained the age of twenty one years.
FIFTH
It is my will that no other action shall be had in the County Court in the administration of my estate, than to prove and record this will and return an inventory, and appraisement of my estate and list of claims against me and at the death of my son the same procedure.”

In the same year, on June 16, 1933, Mason Davis was married the third time to Ruth Davis, appellant in this case. No child or children were born to this marriage and none were ever adopted. The same year, that is, 1933, Mamie Jewel Davis was married to Albert Abrahams. Also in this year, Oletta Maydelle Davis was married.

On October 11, 1935, Crotis Davis died in Williamson County, Texas and thereafter her will was duly probated in Williamson County, Texas.

The son, Mason Davis, died on October 21, 1960 in Williamson County, Texas, leaving a will which was also probated in Williamson County, Texas, his widow, Ruth Davis, appellant herein, qualifying as Independent Executrix of his estate.

Appellant, Ruth Davis, a widow of Mason Davis, who was the beneficiary of the life estate under the will of Crotis Davis, contends that she is an “heir at law” of Mason Davis, and under the second paragraph of the will of Crotis Davis, entitled as such to a one-third share of the lands passing thereunder. Appellees’ position is that Crotis Davis, Testatrix, did not intend to include the wife of her son, Mason Davis, in her will as an heir to share equally with the children of her son.

The following rule is stated in 79 A.L.R. 2d 1439: “In determining whether a spouse is entitled to take as an ‘heir’ under a gift to heirs in a will or trust deed, the courts are agreed that a question of construction is presented — a question which is to be resolved by ascertaining the intention of the maker of the instrument in question.”

This rule continues as follows: “Where the will itself or other competent evidence discloses a special testatorial intention as to the matter in question, the courts have readily given effect to such intention, usually by way of excluding the spouse who is advanced as an heir.”

In Texas, the rule is that in order to ascertain the intention of the testator expressed in a will, the language may be construed in connection with the surrounding facts and circumstances existing at the time the will was made. Hassell v. Frey, 131 Tex. 578, 117 S.W.2d 413. As stated by the Supreme Court in Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147:

“The dominant factor running through all the rules announced or discussed relating to this question is that the intent of the testator as derived from the language used in the entire instrument, considered in connection with the relation and situation of the parties, will control.” Citing cases.

The Court in Hassell also stated the rule to be that more latitude is permitted courts in the construction of a will to ascertain the Testator’s intention than in the construction of a deed.

It is the position of the appellees in this case that the Testatrix, Crotis Davis, used the words “heirs at law” in her will as meaning children. In arriving at the intention of the grantor in a case such as this, the law admits extrinsic evidence as to the situation in which the Testator was placed, the state of her family, the state of her property and other circumstances relating to herself individually and to her affairs. Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374 (1937).

The will was not drawn by an attorney. There is no indication here that the layman who drew the will or Crotis Davis had the proper understanding of the words “heirs at law” in a technical sense. At the time the will was made Crotis Davis had only one son, Mason Davis, who was then a single man having been through two divorce proceedings, and two grandchildren, daughters of the son by his previous marriage. On the same day the will was executed, the son, Mason Davis, conveyed the interest in the land inherited from his father to Crotis Davis. It would appear from such action that both mother and son intended to keep the property in the family of Crotis Davis. Further, it does not seem probable that in January of 1933, the time of executing her will, Crotis Davis, knowing her son was a single man, and knowing of the two divorces within the preceding years, would intend by the term “heirs at law” in her will to include a future wife, if any, of her son.

The will appoints the oldest child of Mason Davis executor or executrix and the youngest child of Mason Davis is referred to in the fourth paragraph.

Only a few cases have been considered by Texas courts involving the question of whether or not a spouse was an heir under the terms of a will or trust. One of the earliest is Peet v. Commerce & E.S. Ry. Co., 70 Tex. 522, 8 S.W. 203 (1888) in which the will of Testatrix bequeathed property to her husband for life with remainder to “my legal heirs.” The Court states that it was not the intention of Testatrix to give the shares in controversy to her husband, in whole or in part, but to her relatives by blood, to her next of kin, and therefore the husband did not take as a “legal heir.”

The case of Farrell v. Cogley, 146 S.W. 315, (Tex.Civ.App. San Antonio 1912, writ ref’d), is a will construction case in which Testator directed the residue of his estate under certain circumstances be distributed to his heirs at law according to the laws of descent and distribution, and left surviving him his brother. The brother died leaving a widow who claimed as the sole heir. The Court holds that the estate under the terms of the will never vested in the brother who survived, and that under the statutes of descent and distribution the persons who would take as his heirs at law would have been the brother, and the brother’s descend-ants, if any, but the brother’s widow would not be a descendant.

The case of O’Pry v. Bahr, 210 S.W.2d 471, (Tex.Civ.App. Galveston, 1948, no writ), construed a will in which Testator created a trust for his wife’s benefit during her lifetime and giving the property remaining at her death to his “heirs.” The Testator had no children and the wife’s daughter by a prior marriage made claim that her mother was an heir. Testator’s kin were brothers and sisters and their descendants. The Court quoting from Peet v. Commerce authority and 44 Tex.Jur., p. 796 holds:

“The words, ‘legal heirs,’ if not otherwise controlled by the will, do not include the widower of a deceased wife; certainly no other construction is permissible where the estate devised to the heirs is only a remainder to be enjoyed by them after the widower’s death. Nor do such words include the widow of a deceased husband, it having been held that where the Testator bequeathed the residue of his estate to his brother and, on the latter’s death, to the ‘legal heirs’ of the Testator, the widow’s brother was not entitled to take under the will.”

The Court decreed that Testator intended to provide for his wife in other ways and to designate his own kin as his heirs at law. It is true that since the decision of the above case in 1948 the legislature in 1955 broadened the definition of “legal heirs” to include the surviving spouse, but as stated by the Court in Vaughn v. Vaughn, 161 Tex. 104, 337 S.W.2d 793, at p. 796 (1960):

“The ultimate question, therefore, is, not as to the meaning of any statute, but what was intended by the testator.’’

The trial court correctly construed the intent of the Testatrix in this case in using the words “heirs at law” to mean “children.” This intent which we have discussed above we think is shown from the surrounding circumstances attending the execution of the will as well as from the contents of the will.

Appellant, stating that there was some difference of opinion among the decisions as to what constituted “heirs,” contends that this uncertainty was laid to rest in 1955 by the legislature with the adoption of Section 3(o) Probate Code, V.A.T.S., which defines heirs as those persons, including the surviving spouse who are entitled under the statutes of descent and distribution to the estate of a decedent who dies intestate. That since this statute containing this broader definition of the word “heirs” has been made effective, subsequent to the execution of the will of Mrs. Crotis Davis, and necessarily subsequent to her death, and prior to the death of the life tenant, the definition of the word “heirs” should be applied by the Court to the class of persons who were entitled to take the remainder of the estate of Mrs. Crotis Davis at the death of the life tenant, Mason Davis. That under the provisions of the will of Mrs. Crotis Davis, the remainder of her estate was left at the death of her son to his “then living and surviving heirs at law. Appellant asks that she, along with the two children of Mason Davis be adjudged his “then living and surviving heirs at law” and that she be entitled to an undivided one-third interest in and to the remainder of the estate devised by the last will and testament of Mrs. Crotis Davis.

We do not agree with appellants here. We hold the law to be that the intent of the Testatrix as of the time the will was drawn, is the intent to be sought and applied, and that the law as it existed when the will was drawn, should be used in interpretation of the will. In the case of Cutrer v. Cutrer, 162 Tex. 166, 345 S.W.2d 513, 86 A.L.R.2d 105 (Tex.Sup.1961), the issue before the Court was construction of a trust and whether or not an adopted child of one of the beneficiaries would come under its terms. The Court holds:

“Whether he [the adopted child] is entitled to an interest in the trust estates depends upon the intention of the settlors, and their intention as it existed at the time the trusts were created is determinative. * * * It would he quite strange to ascertain that intention by looking to the provisions of statutes enacted after the trust instruments became effective or considering changes in public policy as reflected thereby.” (Emphasis added.)

The law had changed since the trusts were drawn and petitioner was trying to determine the rights of the child by the later statute.

The judgment of the trial court is affirmed.

Affirmed.


author: KLINGEMAN, Justice.

text:
    Clifton NIXON, Appellant, v. I. C. COLLINS, Appellee.
    No. 14627.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 22, 1967.

      Williams & Darden, San Antonio, for appellant.
    J. Anthony Guajardo, San Antonio, for appellee.
   KLINGEMAN, Justice.

Suit by Clifton Nixon, plaintiff in the trial court and appellant here, against I. C. Collins, d/b/a Collins Funeral Home, hereinafter called “Collins,” and Louis C. Reddoch and wife, Doris Reddoch, d/b/a Eastview Cemetery, hereinafter called “Eastview,” to recover damages for wrongful disinterment of the body of plaintiff’s mother and removal thereof from one lot to another lot in the Eastview Cemetery. Trial was to a jury. Eastview’s motion for an instructed verdict was granted by the court, but a motion for instructed verdict by Collins was denied. In answer to the special issues submitted, the jury found that plaintiff sustained damages in the amount of $1,000.00 for mental anguish suffered as a result of the removal of his mother’s body; that Collins acted maliciously, as defined by the court, in ordering the removal of the body from one lot to another; and that plaintiff was entitled to exemplary damages in the sum of $1,000.00. Collins thereafter moved for a judgment non obstante veredicto which was granted by the court, and judgment entered that plaintiff take nothing against Eastview and Collins. No appeal is taken from such judgment insofar as Eastview is concerned, and this appeal is confined to the action of the court in granting Collins’ motion for judgment non obstante veredicto, on the grounds that the jury’s findings to the special issues submitted to them are amply supported by the evidence, and that the trial court erred in granting Collins’ motion and entering a take-nothing judgment as to Collins.

Collins has heretofore filed in this Court a motion for dismissal of this appeal on the basis that plaintiff failed to timely perfect his appeal, which motion was overruled. Collins in his brief filed herein, while not specifically setting forth a counterpoint in this regard, still asserts that Nixon’s appeal should have been dismissed. The record discloses that final judgment was signed and filed in said cause on February 17, 1967. Such judgment recited that by agreement of the parties the judgment was ordered to be filed nunc pro tunc as of May 1, 1966. Under Rule 306b, Texas Rules of Civil Procedure, where a judgment is entered nunc pro tunc, the right of appeal shall date from the date of rendition of the nunc pro tunc judgment, which shall be deemed to be the date when the trial judge signed the nunc pro tunc judgment if the date is shown therein; and the periods within which the various steps in such an appeal are to be taken shall be computed from that date. Collins in his motion for dismissal refers to a judgment entered on June 24, 1966, and a motion for new trial filed July 14, 1966, but neither is in the record and they are not before us. Plaintiff’s motion for new trial was timely filed on February 27, 1967. Rule 329b, T.R.C.P. This motion was overruled by the court on April 6, 1967. Notice of appeal was filed on April 17, 1967, the eleventh day, but April 16, 1967, was a Sunday, and such motion was timely filed. Rules 4 and 353, T.R.C.P. The appeal bond, transcript, statement of facts, and appellant’s brief were all timely filed. Appellee’s motion to dismiss is without merit.

Collins presents counterpoints asserting that the court erred in not granting him an instructed verdict, and in submitting a charge to the jury. He further contends that the court did not err in granting a judgment non obstante veredicto because plaintiff failed to establish any cause of action, failed to prove that plaintiff and Collins had entered into any type of contract, failed to prove that the act committed was a wrongful act and maliciously done; that there was no evidence to support an award of damages, actual or exemplary, and that the disinterment and removal of such body was in accordance with law.

A review of the evidence shows that Sallie Fields was the mother of plaintiff, that her husband was dead, and that plaintiff was her only child. Mrs. Fields died in September of 1963 and was buried by the Collins Funeral Home in Eastview Cemetery in Grave 12, Lot 730, Block G. The funeral arrangements were made by plaintiff with such funeral home, and plaintiff testified that he was shown and selected such grave lot prior to his mother’s burial. The funeral bill, which was introduced into evidence, is billed to plaintiff in account with Collins Funeral Home, with a notation thereon “Funeral Expense of Mrs. Sallie Fields,” and the further notation, “1 Complete Funeral $671.50, 1 Dress $19.50,” aggregating a total bill of $691.00. There is attached to the bill, on a separate sheet, an itemization of such funeral expenses, which includes an item of $60.00 marked “G”. D. C. Collins, the son of I. C. Collins and an employee of Collins, who handled the funeral arrangements in connection with Mrs. Fields’ burial, testified that such item “G” represented the cost of the grave site. The evidence shows that $500.00 cash was paid on such bill, with the balance in monthly payments, all of which monthly payments were timely paid by plaintiff. It is undisputed that such funeral bill was paid in full.

Sometime in March, 1964, plaintiff went to. visit his mother’s grave, and at such time discovered that his mother’s body had been moved from Grave 12, Lot 730, to another grave site. The testimony is undisputed that plaintiff’s permission to move such body was not obtained. The testimony is conflicting as to just what efforts were made by Collins to obtain plaintiff’s consent. Collins testified that he phoned plaintiff’s house several times, but was unable to contact him. Plaintiff testified that he had the same phone number and had lived in the same house for many years, and that neither he, nor his wife, who lived with him and who did not work, ever received any such phone calls. Although Collins testified that he looked up plaintiff’s address in a “Criss-Cross,” there is no evidence that any letter or other notice was ever mailed to plaintiff. Further, the evidence shows that during the time the removal was being contemplated plaintiff was making monthly payments on the funeral bill, and receipts of such payments were received by plaintiff and introduced in evidence.

Plaintiff testified that as a result of such moving he became nervous, forgetful, could not sleep well at night, and that his sexual ability had been affected. Plaintiff’s wife corroborated such testimony.

Collins maintains that no deed was ever executed by anyone giving plaintiff any right, title, or interest in and to either the original burial plot or to the plot to which the body was moved. According to the documentary evidence introduced, the record title to both such plots was in Collins at the time of the original burial and at the time of the removal, and Mrs. Reddoch, one of the owners of East-view Cemetery, testified that her records reflected Collins as still the owner. We do not see how the fact that Collins failed to execute a deed to a grave lot after receiving the consideration therefor can serve as any defense for Collins. Collins testified that the burial on the original site was the result of a mistake, but certainly it was not plaintiff’s mistake. Collins also maintains that the removal of such body was done in a lawful manner under the provisions of Art. 912a-22, Vernon’s Ann. Civ.St. Such statute provides in part:

“The remains of a deceased person interred in a plot in a cemetery may be removed therefrom with the consent of the cemetery association and the written consent of the surviving wife or husband, or if there is no surviving husband or wife, then of the children; * * *. If the consent of any such person or of the association cannot he obtained, permission by the county court of the county where the cemetery is situated shall be sufficient. Notice of application to the Court for such permission must he given * * * to the cemetery association, and to the persons not consenting * * * . This provision shall not apply to or prohibit the removal of any remains from one plot to another in the same cemetery or the removal of remains by the cemetery association from a plot for which the purchase price is past due and unpaid, to some other suitable place.”

We do not construe such statute as authorizing a funeral home to move a body from one grave site to another in the same cemetery at its will, without obtaining either the permission of the next of kin, or permission of the county court in accordance with the provisions of the statute.

To sustain the action of the trial court in granting the motion for judgment notwithstanding the verdict, it must be determined that there is no evidence on which the jury could have made the findings relied upon. In acting upon such motion all testimony must be construed in a light most favorable to the party against whom the motion is sought and every reasonable intendment deducible from the evidence is to be indulged in such party’s favor. Leyva v. Pacheco, 163 Tex. 638, 358 S.W. 2d 547 (1962); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952); Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950).

Applying the standards above set forth by our Supreme Court to the case on appeal herein, we hold that the trial court erred in overturning the jury’s verdict and granting Collins judgment non obstante veredicto.

The surviving spouse or next of kin has an action for the violation and desecration of the grave where a body is buried. Love v. Aetna Casualty & Surety Co., 99 S.W.2d 646 (Tex.Civ.App.—Beaumont 1936, no writ); 17 Tex.Jur.2d Dead Bodies, §§ 16, 17. The case of Flores v. De Galvan, 127 S.W.2d 305 (Tex.Civ.App.—San Antonio 1939, writ dism’d jdgmt. cor.) was an action to recover damages for wrongful disinterment of plaintiff’s deceased husband’s body and reburial thereof in another cemetery lot, in which a permit was obtained by the undertaker from the health department for such removal, but no authorization obtained from the widow. Flores’ widow testified that after learning of the removal, she became nervous, was humiliated, and suffered mental anguish. This Court in sustaining a verdict for $1,000.00 actual damages and $350.00 exemplary damages said: “In a case such as this, where the law furnished no legal rule for the measurement of damages, the amount to be awarded rests in the discretion of the jury. The amount awarded by a jury is subject to review by the courts. The courts are reluctant to interfere and will only do so when it is so clearly excessive as to indicate that the verdict was the result of passion or prejudice, or that the jury disregarded the evidence or rules of law.” See also Classen v. Benfer, 144 S.W.2d 633 (Tex.Civ.App.—San Antonio 1940, writ dism’d jdgmt. cor.); J. E. Dunn & Co. v. Smith, 74 S.W. 576 (Tex.Civ.App.—Dallas 1903, writ ref’d); 17 Tex.Jur.2d, Damages, § 186.

The judgment of the trial court is reversed as to Collins and judgment rendered for Clifton Nixon against I. C. Collins in the sum of $2,000.00, being $1,000.00 damages for mental anguish and $1,000.00 exemplary damages, in accordance with the jury verdict, with interest at the rate of 6% per annum from February 17, 1967, until paid. All costs are assessed against appellee.


author: BATEMAN, Justice.

text:
    Roy Rob REEVES, Appellant, v. NEW YORK LIFE INSURANCE COMPANY, Appellee.
    No. 16978.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 27, 1967.
    Rehearing Denied Nov. 24, 1967.

      Harold B. Stone, of Kelsoe & Stone, Dallas, for appellant.
    Larry M. Lesh, of Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.
   BATEMAN, Justice.

The appellant Roy Rob Reeves seeks reversal of a summary judgment against him in his suit against appellee New York Life Insurance Company on two policies of insurance, one covering hospital and other medical expenses and the other providing for disability payments in event of accidental injury. In applying for the policies appellant disclosed previous trouble with his left knee and pain in his low back. The policies were issued as applied for, except that each contained this “Additional Exception Rider”:

“If the written acceptance of the Insured is indicated hereon, it is hereby agreed that, in addition to other exceptions set forth in this policy, this policy shall not cover any loss resulting from any injury to the left knee or to the lum-bosacral or sacroiliac regions of the back.”

At the bottom of each such rider was the following: “Accepted by ROY ROB REEVES Insured,” the name being typewritten.

The policies were dated July 1, 1964, and in the latter part of November 1965 Reeves suffered a herniation of the disk between his fifth lumbar and first sacral vertebrae. The surgeon who removed the disk sent his bill for $125 to appellee, and appellee sent its check for $125 to appellant. Appellee subsequently advised appellant that the check had been sent in error and he was asked to return it. Appellant’s claims under both policies were denied on the ground that they were excluded by the above quoted riders.

The facts of the case are undisputed and, in our opinion, justified the summary judgment. We think appellee fully discharged its burden, imposed upon it by Rule 166-A, Vernon’s Texas Rules of Civil Procedure, of showing the absence of any genuine issue as to any material fact and that it was entitled to a judgment as a matter of law.

By his first point of error appellant says the trial court erred in recognizing the validity of the exclusion riders when, upon their face, they require that they be accepted in writing by the insured, and, since his name was typewritten on the riders, such acceptance was not shown. However, it was shown by appellant’s own testimony in his deposition. He testified unequivocally that he was told by the agent that these riders would have to be attached, and that he knew he had to agree to the terms thereof before the policies would be delivered to him; that he was not particularly concerned about the exclusions and accepted them; and that he signed the original riders containing the exclusions. His first point of error is overruled.

By his second, third and fourth points of error appellant seeks to avoid the effect of the exclusions by pointing to the sending by appellee of the $125 check, and certain statements of its soliciting agent concerning the effect of the policies and riders, as constituting a practical construetion of the insurance contracts contrary to the explicit exclusions, thereby waiving the latter and estopping appellee from relying thereon. These points are without merit. Statements of appellee’s agents which are contrary to the plain and unambiguous provisions of the exclusion riders cannot be regarded as having the effect of altering those provisions. Quite appropriate here is this excerpt from the opinion of our Supreme Court in General American Indemnity Co. v. Pepper, 161 Tex. 263, 339 S.W.2d 660, 661 (1960):

“The words used in this clause are not susceptible of two meanings. They are clear and unambiguous, and, therefore, there is nothing to be construed. It is only where there is uncertainty as to the meaning of a contract or some portion thereof that rules of construction are to be applied.”

See also Guardian Life Ins. Co. of America v. Scott, 405 S.W.2d 64 (Tex.1966) ; Transport Ins. Co. v. Standard Oil Co. of Texas, 161 Tex. 93, 337 S.W.2d 284 (1960); American Indemnity Co. v. Higgenbotham, 52 S.W.2d 653 (Tex.Civ.App., Austin 1932, no writ).

A contract cannot be created by estoppel, Massachusetts Bonding & Ins. Co. v. Dallas Steam L. & D. Works, 85 S.W.2d 937 (Tex.Civ.App., Eastland 1935, writ ref’d), and estoppel and waiver cannot bring within the coverage of a policy a loss which is expressly excluded therefrom. Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S. W.2d 660 (1949); Washington Nat. Ins. Co. v. Craddock, 130 Tex. 251, 109 S.W.2d 165, 113 A.L.R. 854 (1937); Federal Ins. Co. v. Forristall, 401 S.W.2d 285 (Tex.Civ.App., Beaumont 1966, writ ref’d n.r.e.) ; White v. Great American Reserve Ins. Co., 342 S.W.2d 793 (Tex.Civ.App., Dallas 1961, no writ); Great American Reserve Ins. Co. v. Mitchell, 335 S.W.2d 707 (Tex.Civ.App., San Antonio 1960, writ ref’d); Southland Life Ins. Co. v. Statler, 139 Tex. 496, 163 S.W.2d 623 (1942) ; Mutual Life Ins. Co. of New York v. Anderson, 408 S.W.2d 335 (Tex.Civ.App., Dallas 1966, writ ref’d n.r. e.); Southwestern Life Ins. Co. v. Evans, 262 S.W.2d 512 (Tex.Civ.App., Beaumont 1953, writ ref’d); Great American Casualty Co. v. Eichelberger, 37 S.W.2d 1050 (Tex.Civ.App., Waco 1931, writ ref’d). Appellant’s second, third and fourth points of error are overruled.

By his fifth point of error appellant complains of the judgment against him because he says he was charged the same rate of premium with substantially reduced coverage as others paid without such reduction, which constituted unfair and illegal discrimination under the laws of Texas.

The only statute we find bearing on the matter of illegal discrimination with respect to accident or health insurance is in Art. 21.21, Sec. 4, Subdivision (7) (b), Insurance Code, Vernon’s Ann.Civ.St., wherein the following is prohibited:

“(b) Making or permitting any unfair discrimination between individuals of the same class and of essentially the same hazard in the amount of premium, policy fees, or rates charged for any policy or contract of accident or health insurance or in the benefits payable thereunder, or in any of the terms or conditions of such contract, or in any other manner whatever.”

It is not shown that any other individual “of the same class and of essentially the same hazard” was charged a lesser premium than that charged appellant. As said in Hilson v. Sun Life Assur. Co. of Canada, 132 F.2d 989 (5th Cir.1943),

“To increase the premium for taking the risk for such a cause is not a discrimination, but a reasonable difference. If a higher premium for an increased risk were made unlawful, a person whose health is thus impaired could get no insurance.”

The fifth point of error is overruled.

The judgment appealed from is affirmed.


author: WILSON, Justice.

text:
    Paula HARRIS, Appellant, v. Mallie REEVES, a Widow, Appellee.
    No. 4640.
    Court of Civil Appeals of Texas. Waco.
    Nov. 22, 1967.
    Rehearing Denied Dec. 7, 1967.
    M. Hendricks Brown, Brown, Day & Crowley, Fort Worth, for appellant.
    Massie Tillman, Fort Worth, Herschel C. Winn, Cleburne, for appellee.
   OPINION

WILSON, Justice.

Appellant-defendant in this automobile collision case attacks adverse jury findings of her negligence and of proximate cause as having no evidence, or insufficient evidence, to support them. We affirm the judgment under which plaintiff recovered damages.

The collision occurred on a paved two lane farm-to-market road in the daytime. The minor defendant was driving South approaching a driveway she planned to enter, which required a left turn. Plaintiff’s car was traveling North.

The jury found defendant failed to keep a proper lookout, that she turned her car to the left immediately before the collision, and that she drove on to plaintiff’s side of the highway. Negligence in these respects was found to be a proximate cause of the occurrence.

If any of these grounds of recovery are supported by adequate evidence, it is unnecessary to pass on defendant’s points concerning the other grounds, for the judgment is sustainable by the single group of supported findings; and error applicable only to the other grounds is harmless. Texas & N. O. R. Co. v. McGinnis, 130 Tex. 338, 109 S.W.2d 160; Thompson v. Keene, Tex.Civ.App., 281 S.W.2d 167, 169, writ ref. n. r. e.

In our opinion there is ample evidence to support the findings concerning negligent failure to keep a proper lookout and proximate cause.

Defendant testified she saw the adverse vehicle and stopped. The jury was not required to believe she stopped. Emphasis is directed by defendant to a negative jury answer to an issue inquiring whether the jury found from a preponderance of the evidence that defendant later started from a stop. This is not an ultimate, but an evi-dentiary issue. It is not an element of, nor material on the independent grounds of recovery or defense. It does not control the judgment to be rendered. Defendant says the findings on failure to keep a proper lookout will not support the judgment unless there is a finding she “was moving at the time of the collision” and that she “had started from a stopped position across the center of the highway.” The premise is not sound. Whether she was moving or stopped is evidentiary only, as to proper lookout, on questions concerning standard of care and causation. The effect of the jury finding is only that it failed to find the affirmative of the issue. For the same reasons arguments concerning claimed conflicts in findings are untenable.

Defendant testified: “Q. Now, just at the moment of collision, were you looking at the car that was coming toward you? A. No, sir; I wasn’t”; that she didn’t think she knew what was happening; that she was looking at her father and several cars in the driveway as she approached; that at the moment of collision she “was probably looking over toward the driveway”. She could not tell when she again looked up; “It could have been a second before the accident. I don’t really know.” She “wasn’t looking at his car” just prior to the collision with the car driven by plaintiff’s husband. “No, sir; I didn’t see it,” she testified. The collision took her “by surprise.” She didn’t see the other driver turn; “I wasn’t watching” him. The points concerning legal and factual inadequacy of evidence on the proper lookout findings are overruled, as are those asserting objections of immateriality and assumption of facts.

If we were required to determine whether the evidence supported other findings of negligence and proximate cause, we would hold that it did so, and we would overrule appellant’s other points concerning those issues.

Complaint is presented of admission in evidence of testimony of the investigating highway patrolman as to his opinion of the point of impact. It is urged that his opinion was based in part on what an eyewitness told him. The officer examined debris and physical circumstances. He was asked: Q. “Can you give us an opinion as to the location of the point of impact without regard to what this witness told you? A. Yes sir.” He then marked a diagram so as to indicate his opinion. We find no objection in the record nor complaint in the brief to the patrolman’s testimony as to what witnesses told him. When the patrolman’s entire testimony is considered, the complaints do not reflect reversible error.

Testimony of an absent witness on another trial of the same case was admitted over defendant’s objection that no proper predicate had been laid for its admission. The evidence was that the witness was unable to attend the trial because she was ill with bronchial pneumonia and was taking' medication for the illness. The witness was cross-examined on the former trial. The issues were substantially the same. Under these circumstances the testimony was admissible as against the objection. Houston Fire & Casualty Insurance Co. v. Brittian, Tex.Sup. (1966) 402 S.W.2d 509, syl. 1; Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 697.

We are pressed to hold the evidence is insufficient to show the death of plaintiff’s husband was caused by the collision. He was alive just before, and dead immediately after the impact. There were massive wounds over his body, detailed by the examining physician. The point is overruled, together with that complaining of admission of the physician’s opinion of cause of death.

All other points have been considered and are overruled. Affirmed.


author: BARROW, Chief Justice.

text:
    Fernando GARZA, d/b/a Garza Texaco Service Station, Appellant, v. Alfredo GUEVARA, Appellee.
    No. 14635.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 8, 1967.
    Rehearing Denied Dec. 6, 1967.
    House, Mercer, House & Brock, San Antonio, Delno Grosenheider, Austin, for appellant.
    Oscar J. Pena, Laredo, for appellee.
   BARROW, Chief Justice.

Appellant complains of a take-nothing judgment entered after a non-jury trial in his suit to recover for damages sustained to his pick-up truck in a two-vehicle collision at an intersection in the City of Laredo. Findings of fact and conclusions of law were filed by the trial court whereby the trial court concluded that appellant (plaintiff) had failed to prove any act of primary negligence.

Appellant asserts six points of error. By his first three points, appellant urges that, as a matter of law, defendant (appellee) failed to yield the right-of-way, failed to keep a proper lookout, and failed to keep his automobile under proper control. Under his next two points, appellant urges that there is no evidence, or insufficient evidence, to support a finding of contributory negligence. In his sixth point, appellant complains of the trial court’s finding that the testimony of appellant’s witness Raquel Gonzalez should be accorded little weight.

The collision occurred on February 19, 1966, at the intersection of Matamoros and Santa Ursula Streets shortly after the conclusion of the Washington’s Birthday Celebration parade. Defendant was proceeding south on Santa Ursula with the intention of turning to the east on Matamoros. Plaintiff was proceeding east on Mata-moros. The west-bound traffic on Mata-moros was very congested leading away from the downtown area, with traffic backed up for over a block in and to the west of this intersection. Defendant stopped at a stop sign on Santa Ursula and then proceeded into the intersection in a space left between two west-bound vehicles stopped on Matamoros. The impact occurred just south of the center line of Matamoros and about ten feet east of the west boundary line of Santa Ursula, with the right front of defendant’s automobile contacting the left front of plaintiff’s truck.

Three witnesses testified at the trial: plaintiff, defendant and Miss Gonzalez. Each of these witnesses testified by extensive use of a blackboard, and since the diagrams made on this blackboard as to the location of vehicles at various critical times prior to the collision have not been brought forward in any manner, we do not have a complete statement of facts. In Gordon v. Aetna Casualty & Surety Co., 351 S.W.2d 602 (Tex.Civ.App.—Eastland 1961, writ ref’d), it was held that where the record did not contain all the evidence material to the point urged as error, the appellate court was required to treat the appeal as one without a statement of facts, and the judgment was affirmed. See, also, Boyd v. Robinson, 304 S.W.2d 430 (Tex.Civ. App.— Waco 1957, no writ); Hinsley v. Continental Trailways Bus System, 302 S.W.2d 668 (Tex.Civ.App.—Galveston 1957, no writ); 3 Tex.Jur.2d, Appeal and Error, Civil, § 411.

Here the trial court found that the testimony of defendant was “substantially corroborated by the credible testimony and the exhibits and diagram presented before the Court; that he had stopped at the Stop sign, proceeded into the intersection, was turning to the left, was in the plaintiff’s lane of traffic, and was hit by the plaintiff, the plaintiff hitting him with the left fender.” The defendant testified that when he started into the intersection he saw the' truck of plaintiff about half a block away from the intersection.

We cannot say from the partial statement of facts before us that appellant established as a matter of law that appellee was guilty of negligence proximately causing the collision.

The trial court found that the testimony of the witness Miss Gonzalez was confusing, conflicting and inconsistent; that she had a pecuniary interest, since she received a substantial sum for repair of appellant’s truck; and after observing her demeanor on the witness stand the court determined that her testimony was entitled to little weight. This was within the province of the trial court as the trier of the facts. In any event, there is nothing in her testimony that would establish negligence as a matter of law against the defendant. She did not even contradict his testimony that he had stopped at the stop sign.

The judgment of the trial court is affirmed.


text:
    Thomas A. MELODY, d/b/a Texas Professional Engineer, Appellant, v. TEXAS SOCIETY OF PROFESSIONAL ENGINEERS et al., Appellees.
    No. 16987.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 17, 1967.

      Warren Berzett, Dallas, for appellant.
    Robert Keith Drummond, of Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellees.
   BATEMAN, Justice.

The appellant Thomas A. Melody appeals from an adverse summary judgment. He sued the appellees Texas Society of Professional Engineers and its agent or representative, W. Llewellyn Powell, Jr., for actual and exemplary damages alleged to have been caused by acts of appellees in taking over the business of publishing a magazine styled “Texas Professional Engineer,” which appellant alleged he owned, having built it by his own initiative and efforts.

Summary judgment was rendered for ap-pellees on their showing that Texas Society of Professional Engineers, not appellant, owned the business, appellant having been employed to publish the magazine for the Society under a written contract which was terminated in accordance with its terms.

Appellant’s single point of error on appeal is that the court erred in rendering summary judgment because there were material fact issues as to ownership of the business, contracts and other property at termination of the contract between the parties, and also as to damages to the business. We do not agree with appellant.

It is undisputed that on February 4, 1955 the appellee Texas Society of Professional Engineers entered into a written contract with appellant. The Society will be designated herein as TSPE, as it was in the contract. This contract recites in the preamble that TSPE publishes the magazine entitled “Texas Professional Engineer” and is desirous that Melody “continue the responsibility of editing the Magazine and the production and distribution of the same upon the terms and conditions hereinafter expressed: * * *.” It then provided that Melody would assume full and complete responsibility for the production and monthly distribution of the Magazine and “will conduct the editorial policy of the magazine in accordance with the general principles upon which the same is now conducted and at all times will work for the closest harmony in this respect with the Publications Committee of the TSPE and will use due diligence in producing the magazine at a reasonable cost, and will protect TSPE against any financial loss and will assume all financial responsibility incurred in the publication.” Melody agreed in event of suspension of the magazine to refund all monies from prepaid advertising. He also agreed to produce a magazine “with a minimum of 24 pages.” It was further provided: “Melody will assume responsibility for the solicitation of advertising for the Magazine and hereby reserves right to so solicit wherever such is deemed advisable, except that ‘liquor’ advertising is prohibited.” It was also agreed that no advertising would be sold for any longer period than one year. The contract provided that the “monthly net proceeds up to and including $1,400.00 over and above the cost of production and distribution shall go to Melody as remuneration for management, editorial services, advertising solicitation, stenographic and clerical help, and office rent.” Monthly net proceeds in excess of $1,400 were to be divided between Melody and TSPE according to a certain formula. It further provided that advertising rates would be subject to approval of TSPE. TSPE reserved the right to cancel the contract at any time upon ninety days’ written notice “in the event that Melody, in the opinion of the Publications Committee and the Executive Board of the TSPE, has failed to satisfactorily carry out the editorial policies as have been prescribed by the Publications Committee of the TSPE; * * The term of the contract was extended by a written memorandum of agreement to January 31, 1962.

The magazine published for the months of March and April 1961 contained only 20 pages, and Melody was notified in writing that this was contrary to the editorial policy of TSPE, after which each of the issues for May, July and August 1961 also contained only 20 pages. On August 10, 1961 Melody was notified in writing that the contract was being can-celled as of November 10, 1961 for those reasons.

Appellant filed an answer to the motion for summary judgment, in which he adopted by reference the allegations of his Fourth Amended Original Petition. He also alleged in the answer that there were material fact issues: (1) in determining whether the contract required each issue of the magazine to contain 24 pages, or whether the fact that the average size of all issues was more than 24 pages would constitute compliance, and (2) as to whether the editorial policy of requiring each issue to contain 24 pages was “representative of the membership of the Defendant corporation,” and (3) as to the ownership of the business upon termination of the contract. The allegations in this answer, as well as those in the Fourth Amended Original Petition, were sworn to by appellant, but no other affidavit was attached thereto.'

Although appellant describes the relationship between him and TSPE as being a “joint venture,” the undisputed facts are, in our opinion, that TSPE owned the magazine and that appellant was merely employed to publish it. The preamble to the contract indicates strongly that TSPE is the owner, and the contract itself provides that appellant is to receive a certain portion of net proceeds “as remuneration for management, editorial services, advertising solicitation,” etc. He agreed that all advertising rates would be subject to approval by TSPE and to refund all monies from prepaid advertising “in the event of suspension of the magazine.”

We think the appellees carried the burden, assumed by them in filing their motion for summary judgment, of showing the absence of any genuine issue of material fact and that they were entitled to judgment as a matter of law. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952) ; Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

Appellant argues, however, that this showing, if made at all, is by the affidavits of Llewellyn Powell, Chairman of TSPE’s Publications Committee, and Jim Stewart, Executive Secretary of TSPE, both interested witnesses, and that their statements can do no more than raise issues of fact, citing James T. Taylor, etc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371, 377 (1960). Of course, this is the general rule, but there is a well defined exception thereto, which is that where the testimony of the interested witness is not contradicted by any other witness or by attendant circumstances and is clear, direct, positive and free from inaccuracies and circumstances tending to cast suspicion thereon, such testimony may be taken as true as a matter of law. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1942); M. H. Thomas & Co. v. Hawthorne, 245 S.W. 966 (Tex.Civ.App., Dallas 1922, writ ref’d). This exception is especially applicable when the testimony of the interested witness is corroborated by other witnesses or documents and the opposite party had the means and opportunity of disproving the testimony, if it were false, and failed to do so. McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722, 728 (1943); Watson v. Druid Hills Co., 355 S.W.2d 65, 70 (Tex.Civ.App., Dallas 1962, writ ref’d n. r. e.); Bayou Drilling Co. v. Baillio, 312 S.W.2d 705 (Tex.Civ.App., Houston 1958, writ ref’d n. r. e.); Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965). In our opinion this case comes within that exception.

Appellant alleges in his answer to the motion for summary judgment that “many ch&nges were instituted” since the written contract was made, which changes are identified in his petition; but we do not find in the record either allegation or proof of any modification of the written contract.

Appellant agreed in that contract that TSPE would have the right to cancel it if, in the opinion of its Publications Committee and Executive Board, appellant failed to satisfactorily carry out its editorial policies. This opinion and failure were established by the affidavits of Powell and Stewart and the exhibits attached thereto. Appellant’s response was that he had in fact complied with' the editorial policy in question, in that the average content of the magazine was more than the required 24 pages, and that there was a fact issue as to whether the editorial policy in question was “representative of the membership” of TSPE.

It is our view that the contract shows on its face that the parties intended that each issue should contain a minimum of 24 pages but, regardless of our view, appellant had agreed that the matter would be determined by the opinion of TSPE’s Publications Committee and Executive Board. That opinion was proved, and there is nothing in the record to indicate that it was whimsical, arbitrary or capricious. It was therefore binding on appellant, and it was wholly immaterial whether that opinion was shared by the membership of TSPE.

Appellant’s other contention, that the contract is ambiguous as to which of the contracting parties would own the magazine and its property upon termination, is likewise without merit. We see nothing in the contract to indicate that under any circumstances appellant would own any of such property. He asserts ownership on the ground that the business was “built up by his own initiative, contacts, and contracts which he developed,” but those were things which he was employed to do and his efficient performance of those duties would not have the effect of transferring ownership of the business from his employer to himself. No genuine issue as to any material fact in this respect was raised.

Moreover, the affidavits offered by appellant to oppose the motion for summary judgment are not entitled to consideration here for two reasons. First, they do not “show affirmatively that the affiant is competent to testify to the matters stated therein,” in that they do not show that they were “made on personal knowledge,” all as required by subdivision (e) of Rule 166-A, Vernon’s Texas Rules of Civil Produre. Lawyers Surety Corp. v. Sevier, 342 S.W.2d 604, 607 (Tex.Civ.App., Dallas 1961, no writ), cited with approval in Box v. Bates, 162 Tex. 184, 188, 346 S.W.2d 317, 319 (1961).

Secondly, the affidavits merely adopt allegations made in appellant’s pleadings and do not contain “such facts as would be admissible in evidence,” as also required by subdivision (e) of Rule 166-A. Similar affidavits were held to be insufficient in Duffard v. City of Corpus Christi, 332 S.W.2d 447 (Tex.Civ.App., San Antonio 1960, no writ); Sparkman v. McWhirter, 263 S.W.2d 832 (Tex.Civ.App., Dallas 1953, writ ref’d); Schepps v. American Dist. Telegraph Co. of Texas, 286 S.W.2d 684 (Tex.Civ.App., Dallas 1955, no writ).

The judgment appealed from is

Affirmed.


author: STEPHENSON, Justice.

text:
    RESERVE LIFE INSURANCE COMPANY, Appellant, v. Marice CRAGER, Appellee.
    No. 6914.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 22, 1967.
    Joe Bailey Humphreys, Dallas, for appellant.
    Dies & Dies, Lufkin, for appellee.
   STEPHENSON, Justice.

This is an action brought upon a hospital and surgical expense policy of insurance. Trial was by jury and judgment was entered for plaintiff upon the answers to the special issues. The parties will be referred to here as they were in the trial court.

It was stipulated that the policy of insurance sued upon was in full force and effect at the time of the death of the insured, Douglas E. Crager. The plaintiff is Marice Crager, surviving wife of Douglas E. Crager.

The plaintiff’s petition reads in part as follows:

(2)
Heretofore, to-wit on or about February S, 1963, the defendant issued, executed and delivered a policy of hospitalization insurance to Douglas E. Crager, now deceased, said policy being No. FG-738989. While such policy was in full force and effect, said Douglas E. Crager was hospitalized in Lufkin, Angelina County, Texas and under the terms of such policy the defendant became obligated to pay the sum and amount of $750.00 for such hospitalization. Plaintiff Mar-ice Crager is the surviving widow and heir at law of Douglas E. Crager. Though having been requested to meet its obligation under such policy, the defendant refuses to do so, and therefore, under the law of Texas plaintiff is entitled to sue for and does, with reasonable attorney’s fees plus 12% damages. Plaintiff alleges that $350.00 would be a reasonable attorney’s fee.

Defendant filed a general denial.

The insurance policy sued upon contained the following insuring clause:

HEREBY INSURES the Applicant, first named in the following Schedule, hereinafter called the Insured, and will pay, subject to all provisions and limitations herein contained, the benefits provided herein for expense actually incurred for hospital confinement commencing while this policy is in force (including any which are covered under any Workmen’s Compensation Law or Occupational Disease Act) on account of the Insured or any member of the Insured’s family, if any, named in said Schedule (all of whom, including the Insured, are hereinafter called Members of the Family Group)
(a) resulting solely from accidental bodily injury, sustained while this policy is in force, hereinafter referred to as such injury; or
(b) resulting solely from disease, the cause of which originates while this policy is in force and more than fifteen (15) days after the date hereof, hereinafter referred to as such disease.

Three special issues were submitted to the jury. The first read as follows:

Do you find from a preponderance of the evidence that Douglas E. Crager was confined as a resident bed patient in Woodland Heights General Hospital in May and June of 1965 as a result solely from disease or accidental bodily injury?
ANSWER “YES” or “NO”.
ANSWER YES
The answer to special issue #2 found the insured was confined in the hospital 57 days. The answer to special issue #3 found $350.00 to be a reasonable attorney’s fee.

The defendant has a point of error that the trial court erred in overruling its motion for instructed verdict because plaintiff failed to plead and prove a cause of action. This point of error must be sustained. As this court said in Merryman v. Employers National Life Insurance Company, Tex. Civ.App., 416 S.W.2d 609, the insuring clause in the insurance contract is the key to the solution of this case. This policy did not provide for benefits for hospital confinement, but did provide for benefits for hospital confinement resulting solely from accidental bodily injury sustained while the policy was in force or resulting solely from disease, the cause of which originated while the policy was in force and more than 15 days after the date of the policy.

Plaintiff did not plead that the confinement sued for resulted from accident or disease as set forth in the policy. Plaintiff now argues that the pleadings are sufficient, especially in view of the fact that defendant filed only a general denial, and did not plead any limitation or exception as a defense under Rule 94 Texas Rules of Civil Procedure. The burden was upon plaintiff to allege and prove facts showing the loss sustained was covered by the policy, and this she failed to do. Bethea v. National Casualty Company, Tex.Civ.App., 307 S.W.2d 323.

Plaintiff also contends the evidence was sufficient to discharge her burden. No doctor testified in this case, and we have only the testimony of plaintiff, the hospital administrator and an attorney. None of these three witnesses gave any evidence as to the reason for the insured’s confinement except the identification of the hospital records by the administrator. These records contain the following:

SUMMARY SHEET
Provisional Diagnosis:
Bursitis (L) Elbow
Final Diagnosis:
Infected Bursitis (L) Elbow
Secondary Diagnosis or Complications:
Diabetes Mellitus
HISTORY
CC: Pain over left elbow
PI: This patient has been having severe pain over left elbow, soft tissue swelling and redness for the past week prior to admission to the hospital. He was seen in the office and given medication, varidase plus a preparation for arthritis. However, the swelling did not go down, continued became more severe and it was necessary to admit him to the hospital for control of same.
PH: Had a coronory a year ago, hospitalized for this, also had diabetes which he has been in good control with orinase tablets.
FH: No history of diabetes, tuberculosis or cancer.

Assuming the statements contained in the hospital record to be evidence that insured was confined in the hospital because of infected bursitis of his left elbow, we do not consider such statement to be evidence that such condition resulted solely from accidental bodily injury while the policy was in force or that such condition resulted solely from disease, the cause of which originated while this policy was in force and more than 15 days after the date of this policy.

It is apparent from this record that the facts have not been fully developed, and that proof may be made as to the reason the insured was confined in the hospital. This court has the power to remand this case “in the interest of justice,” and we have concluded this is a proper case in which to exercise such power. Scott d/b/a Tidelands Motor Inn v. Liebman, Tex., 404 S.W.2d 288.

The pleadings having been amended and the case reheard on a second trial, the problems arising on its first trial should not be encountered again. We, therefore, do not pass upon the remainder of the points of error.

Reversed and remanded.