author: STEINFELD, Judge. OSBORNE, Judge.

text:
    Marie DONAHUE, Administratrix of the Estate of James D. Donahue, Deceased, et al., Appellants, v. C. C. SIMMS, Administrator of the Estate of Francis W. Simms, Deceased and C. C. Simms, Individually, Appellees.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.

      James F. Clay, Danville, Chat Chancellor, Chancellor & Darnell, Frankfort, for appellants.
    Robert M. Spragens, Lebanon, for ap-pellees.
   STEINFELD, Judge.

Five boys whose ages ranged from fifteen to seventeen were killed when the automobile in which they were riding was wrecked. The respective administrators of four of these boys sued the estate of the fifth, his father and other members of his family. The court dismissed certain defendants and the jury found for the remaining ones. From a judgment entered pursuant to that jury verdict all plaintiffs appealed. We affirm.

On May 25, 1964, about 10:00 p. m. on a straight stretch of road about two miles northeast of Loretto on Kentucky Highway No. 49, the car owned by Lewis Simms left marks which extended 177 feet on the surface, went off the road and continued for 240 feet where it struck a tree with such force as to kill the five occupants almost instantly.

No one testified that he saw any of the boys in the car before the accident and nobody was able to furnish any evidence as to who was driving before or at the time of the wreck. The first person to reach the car stated that “the bodies in the car were thrown in disarray.” The Ballard hoy was up under the dash of the car in front, the Donahue boy was toward the center of the car, and the Clark boy was on the floor in back. This witness said that Francis Simms was behind the steering wheel, but the Hamilton boy was between Simms and the door on the driver’s side. The reason for the accident was unknown but apparently a tire had blown out while the automobile was traveling at a high speed, causing the operator to lose control.

From the entire record, including the depositions taken for the purposes of discovery (CR 26.01), we have obtained information, only some of which was produced in evidence at the trial.

Lewis Simms, who was one of the defendants in this action, owned an automobile. From time to time his brother Francis, who lived with his parents about 1}4 miles from Lewis, without securing specific consent from Lewis, was allowed to use the car “to go down the road to the grocery, or any short trips like that. He would ask permission to use the auto if he was going to keep it for any length of time.” On the occasion of the accident, Francis had not requested or received permission to use the automobile. Lewis always left his keys in the car (a reprehensible habit as well as an invitation to anyone passing by to take the car). There was no evidence of who took the car from where he had left it.

On that fatal night Lewis went to the movies. When he returned, his car was missing. He secured the aid of his father to locate the auto and after the two arrived in town they learned of the tragedy.

Much of the information which we have just related was contained in the discovery depositions which were not produced for any purpose whatsoever during the trial. The contents were not before the jury and were not subject to consideration by the trial court on the motion to grant to the defendant a directed verdict.

The only proof on the trial, with respect to the use of the automobile, was the testimony of Lewis Simms who was called as a witness by the appellants, and when interrogated as if on cross examination testified as follows:

“Q. 2 Mr. Simms, the car that was involved in the accident, which the witnesses have described, was your car, was it not ?
A. Yes sir.
Q. 3 Tell the jury if your brother, Francis Wayne Simms, frequently, or at all, drove your automobile ?
A. Yes. They all had an opportunity to drive it any time I wasn’t in it.
Q. 4 You made no objection to your brother, Francis Wayne Simms, using your automobile?
A. No sir.
Q. 5 And you were aware that he did so on occasions?
A. Yes.
Q. 6 Where had you gone — at the time — the evening of this accident ?
A. I went to the theatre.
Q. 7 At what time were you there?
A. I was there until 10:30 or 11:00 o’clock that night, then I went home and the car was gone.
Q. 8 You made no complaint about it then?
A. Yes I did.
Q. 9 Did you know where it was ?
A. I looked for it, but he wasn’t at home.
Q. 10 You understood that Francis Wayne had it?
A. Yes, but there wasn’t anybody home, and I went down town and found out down there about the wreck of my car.”

At the conclusion of the introduction of all evidence the defendants moved for a directed verdict. They claimed then, and now claim, that there was no evidence that Francis was operating the automobile at the time of the accident or that the accident resulted from his negligence. The court overruled the motion as to the appellees herein but sustained it as to the other defendants. After being instructed and deliberating the jury said, “We the members of the jury find Simms not guilty.”

The appellants insist that it was error to instruct the jury that it could consider whether the passengers were negligent and if it so believed it could find for the defendants. They cite Murphy v. Harmon, 291 Ky. 504, 165 S.W.2d 11 (1942); Epperson v. Wright, 277 Ky. 205, 126 S.W.2d 123 (1939); Edmiston v. Robinson, 293 Ky. 273, 168 S.W.2d 740 (1943); Wright & Taylor v. Ochs, 306 Ky. 396, 208 S.W.2d 52 (1948) and Rucker v. Clark, Ky., 239 S.W.2d 80 (1951). The appellees say that the instruction of which appellants complain was proper and refer us to Mattingly v. Meuter, 275 Ky. 294, 121 S.W.2d 676 (1938) and Stephenson’s Adm’x v. Sharp’s Ex’rs et al., 222 Ky. 406, 1 S.W.2d 957 (1927). If this charge was improper they contend that it was not prejudicial and that the jury did not consider it. They rely on Buren v. Louisville Rwy. Co., 291 Ky. 641, 165 S.W. 2d 352 (1942) and Standard Generator Service Co. v. Stout, Ky., 321 S.W.2d 47 (1959). The appellees also argued that the appeal should be dismissed because of an alleged failure by appellants to comply with certain court rules, or alternately that the judgment should be affirmed.

We need not decide these issues for we hold that the appellees were entitled to dismissal by the court because of the failure of the appellants to present substantive evidence that Francis Simms was driving and that the accident resulted from his negligence. Licking River Limestone Co. v. Helton, Ky., 413 S.W.2d 61 (1967).

The tests to be applied in this type of situation are stated in Cox et al. v. Wilson et al., Ky., 267 S.W.2d 83, 44 A.L.R. 2d 830 (1954) and Vernon v. Gentry, Ky., 334 S.W.2d 266, 79 A.L.R.2d 1 (1960). One requirement is that “the defendant must have had full management of the instrument which caused the injury.” From' the testimony of Lewis Simms and the proof concerning the position of the boys in the car after the wreck was there an inference or rebuttable presumption that Francis had “full management of” the automobile when it left the road?

Drahmann’s Adm’x v. Brink’s Adm’x, Ky., 290 S.W.2d 449 (1956) was a suit for recovery of damages due to the crash of an airplane. The issue was who was piloting the plane. We said: “To authorize submission of this case to the jury, it must be determined by the law in Kentucky that these facts warrant an inference or rebut-table presumption that Brink was the pilot at the time of the crash.” In Lee v. Tucker, Ky., 365 S.W.2d 849 (1963) we wrote:

“It is not disputed that Mr. Tucker’s ownership of the car and the evidence of his having been the last person seen driving it raised at least a ‘permissible inference’ that he was the operator at the time of the accident. Otherwise, of course, the defendant would have been entitled to a directed verdict on the plaintiff’s claim.”

We have held that proof “may be direct, presumptive or circumstantial, but legal proof, nevertheless, it must be.” Blair Fork Coal Company v. Blankenship, Ky., 416 S.W.2d 716 (1967). The evidence in this case does not meet that test.

“ ‘A fact is not proved by circumstantial evidence if it is merely consistent with such fact * * * In other words, the circumstantial evidence must go far enough to induce a reasonable conviction that the facts sought to be proved are true and must tend to eliminate other rational theories.’ United Electrical Coal Companies v. Brown, Ky., 354 S.W.2d 502, 503 (1962).” Burgan v. Harrison, Ky., 413 S.W.2d 352 (1967).

Francis was not the owner of the car. There was no evidence that he had secured permission from the owner to use it or that he was driving either before or at the time the accident occurred. After the wreck he was found behind the steering wheel, but the Hamilton boy was between Francis and the door on the driver’s side which is the usual position of the operator of a motor vehicle.

Under the test to be applied the proof, including the surrounding circumstances, does not “warrant an inference or rebuttable presumption that (Francis) was the (driver) at the time of the crash.” Lee v. Tucker, supra. We hold that “a verdict founded wholly upon speculation and surmise cannot be sustained. * * * [T]he line between what is speculative proof and what is circumstantial or inferential proof is sometimes dim and uncertain.” Beatrice Foods Company v. Chatham, Ky., 371 S.W. 2d 17 (1963). Here we have speculation. “[RJecovery is not authorized if liability is a matter of conjecture, surmise or speculation.” Bryan v. Gilpin, Ky., 282 S.W.2d 133 (1955). Luckett v. Adolphus Cleaners, Ky., 262 S.W.2d 191 (1953); Randall v. Shelton, Ky., 293 S.W.2d 559 (1956); Roberts v. Lowery, Ky., 379 S.W.2d 235 (1964); Highway Transport Co. v. Daniel Baker Co., Ky., 398 S.W.2d 501 (1966).

We conclude that the cases before us are “in the class * * * where the evidence presents no more than a possibility or a basis for conjecture that the accident was caused by the * * * negligence” of Francis Simms. Klingenfus v. Dunaway, Ky., 402 S.W.2d 844 (1966).

In Wadkins’ Adm’x v. Chesapeake & Ohio Railway Company, Ky., 298 S.W.2d 7 (1957) we wrote:

“Since Nugent v. Nugent’s Ex’r, 281 Ky. 263, 135 S.W.2d 877, the rule in this state is that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but should direct a verdict for the defendant.”

The proof was insufficient to support a verdict for plaintiffs, therefore, there was nothing to submit to the jury. Steely v. Hancock, Ky., 340 S.W.2d 467 (1960). The trial court should have sustained the defendants’ motion for a directed verdict.

The judgment is affirmed.

All concur except OSBORNE, J,, who dissents.

DISSENTING OPINION

OSBORNE, Judge.

I must respectfully disagree with the majority opinion herein. The facts raise a strong presumption that Francis W. Simms was the driver of the car. The car was owned by his brother; and he was in the habit of using the car. After the wreck he was found behind the wheel. Of the other occupants, none were related to the owner; none had previously borrowed or used the car and they were all found scat- ■ tered throughout the car at places other than in the driver’s position. I believe most reasonable men would agree from these facts that Francis W. Simms should be presumed to have been the driver.

For these reasons, I dissent.

      . This name is also spelled Louis Simms in many places in the record.


source: Caselaw Access Project

author: WADDILL, Commissioner.

license: Public Domain

text:
    Dianna Lynn KNIGHT, Appellant, v. James Edgar KNIGHT, Appellee.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.
    Billy R. Paxton, Central City, for appellant.
    Marion Vance, Glasgow, for appellee.
   WADDILL, Commissioner.

The only issue to be resolved on this appeal is whether the Chancellor abused his discretion in entering an order providing alternate custody of a five-year-old boy between his parents, the parties to this appeal.

Appellee was granted a divorce from appellant in November 1963. Both parties had asked for the custody of their infant son. The record in that case discloses that both parties live with their parents and that they have jobs which require them to leave the infant with relatives while they are at work. There are circumstances disclosed in the divorce action which make the custody question unusually difficult of proper solution.

The interest and welfare of the child and not the wishes of the parents are the paramount concern of the courts. McLemore v. McLemore, Ky., 346 S.W.2d 722. In the absence of proof to the contrary the mother is considered best fitted to care for the needs of young children. Hatfield v. Derossett, Ky., 339 S.W.2d 631; Renfro v. Renfro, Ky., 291 S.W.2d 46.

This court looks with disfavor upon split custody of young children. In considering such arrangement the court in Towles v. Towles, 176 Ky. 225, 195 S.W. 437, said:

“ ‘ * * * it is only necessary to say that such an arrangement would be greatly to the detriment of the children, because it would give them no fixed or permanent home, but rather keep them unsettled and on the move. * * *

In the instant case the learned Chancellor indicated that the custody order was a temporary one. For this reason and the further fact that the question of the child’s permanent custody should be initially decided on the trial level we have concluded not to interfere at this stage of the proceedings with the Chancellor’s handling of this delicate matter. The Chancellor will soon determine by appropriate proceedings the important issue that is presently pending in this case.

The judgment is affirmed.

All concur.


author: CULLEN, Commissioner.

text:
    The AMERICAN TOBACCO COMPANY, Appellant, v. David J. SALLEE et al., Appellees.
    Court of Appeals of Kentucky.
    May 5, 1967.
    Rehearing Denied Oct. 27, 1967.

      S. Lloyd Cardwell and John K. Gordinier, Stites, Peabody & Helm, Louisville, for appellant.
    John E. Wise and Lee B. Russell, Louisville, for appellees.
   CULLEN, Commissioner.

The American Tobacco Company appeals from a judgment affirming an order of the Workmen’s Compensation Board awarding compensation for total permanent disability to appellee David J. Sallee, a former employe of the appellant’s.

The appellant’s first claim of error relates to a matter of procedure before the board. After the taking of proof had been completed the appellant employer filed a motion with the board that Sallee, who was disabled by reason of a herniated intervertebral disc, be compelled to submit to a corrective operation or be denied compensation for unreasonable refusal to submit to such an operation. After a time the board entered an order overruling this motion. Approximately three weeks later, without the parties’ having filed briefs on the merits of the claim, the board issued an opinion and order determining the merits of the case and awarding compensation. The appellant maintains that this was done in violation of a long established, invariable custom and practice of the board to send notice to counsel of an order of submission fixing the date from which the time for filing briefs is to be measured.

The rules and regulations of the board, properly promulgated, provide for automatic submission of a case at the first regular meeting of the board following the expiration of time for taking proof. In Collista Coal Co. v. Castle, Ky., 407 S.W.2d 719, this Court held that in view of the rule no order or notice of submission was required in a case. The appellant seeks to escape that holding on the ground that it was not made to appear there, as it has been here, that the board’s established custom and policy has been to make an order of submission and give notice thereof, and that in some instances the submission date, fixed in an order has been different from (later than) the automatic date under the rule.

What was lost by the appellant by reason of its reliance upon the board’s custom of giving notices of submissions was the opportunity to try by brief to persuade the board of the correctness of appellant’s contentions as to the law and as to the interpretation of, and references and conclusions to be drawn from, the evidence. The points in issue on the merits of the case were the extent of disability and whether the disability was attributable to an accident arising out of and in the course of employment. (The question of whether Sallee should have been barred from compensation for refusal to submit to an operation was fully briefed and argued on motion, so appellant lost no opportunity to brief that question.)

Were the case a closer one on the two issues above mentioned we would be inclined to hold that the board committed prejudicial error in failing to give notice of an order of submission according to its established custom and practice. (There is in the record a certificate of the board’s executive director that an order of submission “is customarily sent to counsel.”) The right to be heard by counsel on the probative force of the evidence is an essential feature of a hearing. See Mayfield Gas Co. v. Public Service Commission, Ky., 259 S.W.2d 8. Basic fairness would suggest that if the board, regularly and consistently over a period of at least two years, had ignored its automatic submission rule and had given notice of an order of submission, counsel with knowledge of the custom should have been entitled to expect notice. Certainly the courts should not condone an administrative operation under which the rule says one thing and the practice is something entirely different. It is our feeling, however, that there was no material prejudice in this case because the decision of the board on the two points in issue seems so eminently correct as to make it extremely unlikely that briefs could have persuaded the board to a different decision.

As concerns the issue of the extent of disability, the medical evidence was practically unanimous that Sallee is totally disabled from performing any type of manual labor, or any work requiring lifting, stooping or bending. When injured, Sallee was employed in a manual labor job. The appellant argues, however, that manual labor was not Sallee’s usual occupation, and that he is not totally disabled from performing other kinds of work in which he has engaged.

Sallee is 30 years of age and has a high-school education. His first job was as a salesman of building materials. After that he worked briefly as an interior decorator. Then for five years he worked as an order clerk for a manufacturer. In that job he did some book and office work, and also on occasions did some commercial art work. However, at least half of his work involved manual labor. After his initial injury while working for the appellant he returned for a time to service in unskilled capacities for the appellant which did not require much physical exertion. Later he worked for a time as a clerk in a hotel, and then, briefly, as a bartender. We think the evidence clearly leads to the conclusion that Sallee is an unskilled workman who perhaps has capacity to perform other than manual labor jobs, but whose work experience has in a very substantial way involved manual labor, and whose future work opportunities would be predominantly in the manual labor field. Accordingly, it is our opinion that the evidence amply supports the finding that Sallee is totally disabled for work in his usual occupation.

On the issue of whether the disability is attributable to an accident during employment or to some other cause the evidence was that Sallee sustained a back injury while moving some heavy tubs as a part of his job with the appellant. The doctor who examined him immediately thereafter testified:

“I felt that Mr. Sallee probably suffered a protruded intervertebral disc but that since it was still quite acute we should treat it as though it were a sprain or strain with a conservative program, and then if he didn’t get the desired response to pursue it further particularly with hospitalization.”

Later, while at home, Sallee twisted his back when he slipped on a waxed floor and almost fell. Subsequently, upon performance of a myelography, it was determined definitely that Sallee had a herniated disc.

The appellant rests its argument of failure of proof of causation on the fact that the doctors were unable to state with “medical certainty” that the slipped disc was the result pf the employment accident rather than of the slipping incident at Sallee’s home. However, it is our opinion that when the doctor’s initial prognosis of a protruded disc is considered in connection with the subsequent confirmed existence of such an injury, and with the medical testimony that the type of accident sustained by Sallee on the job definitely could have caused such an injury, the proof of causation is more than adequate. (“Medical certainty” is not required; reasonable probability is enough. Grimes v. Goodlett and Adams, Ky., 345 S. W.2d 47.)

On the question of whether Sallee’s refusal to submit to a corrective operation was unreasonable, so as to warrant denial of compensation, the evidence was that such an operation, although classed as a major one, would involve negligible risk to life, and that the prospects of relief from pain as a result of the operation would be around 80 or 85 percent. The appellant contends that seriousness of risk and chances of success are the only two factors to be considered, and where, as here, it is undisputed that the risk is negligible and the chances of success high, a refusal to submit to operation is unreasonable.

Our most recent decision on this question (1964) is in Bethlehem Mines Corporation v. Hall, Ky., 379 S.W.2d 58. There, it is true, one doctor testified that the chances of successful results of a disc operation were only 40 to 50 percent, and the opinion (upholding the board’s refusal to compel the employe to submit to the operation) was based on the existence of a difference of medical opinion evidence. However, reference was made to the fact that most courts, whatever the reason, have refused to force an employe to submit to a disc operation, and citation was made of prior decisions of this Court pointing out that in no case have we required an employe to submit to a “major” operation.

Although as argued by the appellant, progress has been and is being made in the fields of medicine and surgery, and in many areas the prospects of successful results are increasing, we are not yet ready to hold that a major operation, involving substantial pain, must be submitted to unless the prospects of unsuccessful results, as well as the risk to life or health, are minimal. The evidence here did not put the chances of failure in the minimal class.

The judgment is affirmed.

All concur.


author: POPE, Justice.

text:
    Jack PERRY, Petitioner, v. Ira C. LITTLE, Jr., Respondent.
    No. B-73.
    Supreme Court of Texas.
    Oct. 4, 1967.
    Rehearing Denied Nov. 1, 1967.
    Bracewell & Patterson, Joseph Jaworski, Houston, for petitioner.
    Wynne, Jaffe & Tinsley, Yandell Rogers, Jr., Dallas, for respondent.
   POPE, Justice.

Jack Perry sued Ira C. Little for damages resulting from Little’s alleged breach of a contract to purchase five thousand shares of corporate stock from Perry. Perry obtained a judgment against Little upon a jury verdict for $30,870.91. The court of civil appeals reversed the judgment and rendered judgment that Perry take nothing. 410 S.W.2d 286. We reverse the judgment of the intermediate court and affirm that of the trial court. The questions presented are whether the trial court erred in refusing to submit a special issue which inquired whether Perry communicated his acceptance of a letter offer made by Little, and whether Perry made a timely and proper tender of the shares of stock to Little.

In July, 1961 defendant Little and C. W. Deaton were in business together purchasing stock in the Medical Specialties Sales Corporation of Dallas, Texas. The stock was not listed on any stock exchange. On July 11, 1961, Deaton visited Perry’s office in Houston, Texas and offered to sell Perry a five per cent interest in a Bahama bank and five thousand shares of Medical Specialties Sales Corporation stock for the sum of $25,000.00. Perry agreed to accept the offer on the condition that Deaton find some substantial person who would agree to repurchase the five thousand shares of stock from Perry. On that date Deaton returned to Dallas and there obtained a letter from Little to Perry by which Little agreed to purchase the shares of stock for $5.00 per share on January 22, 1962. Little’s letter was dated July 11, and Deaton delivered it to Perry in his Houston office about noon on July 12. Little’s letter addressed to Perry stated:

“This is to advise that you are holding 5,000 shares of Medical Specialties Sales Corporation stock which I will purchase from you at $5.00 per share on January 22, 1962. This commitment to purchase is good in the event you are holding the stock on this date.
“It is further understood that C. W. Deaton has the right to pick up this stock from you on or before January 22, 1962 at $5.00 per share.
“In the event Mr. Deaton should want to pick up this stock from you, I want you to have him procure a letter in writing from me before you release the stock.”

One reason for the intermediate court’s reversal of the judgment for Perry was that the trial court failed to submit a special issue which inquired whether Perry communicated his acceptance of Little’s letter offer. In our opinion, the additional issue was unnecessary. The trial court submitted an issue which asked whether Perry “on July 12, 1961 * * * agreed to and accepted the terms of defendant Little’s July, 1961 letter proposal.” The jury answered the issue affirmatively. Both Perry and Little testified. Perry said that he phoned Little when Deaton delivered Little’s letter about noon on July 12. He said that in the phone conversation, he verified the fact that Little had signed the letter and understood its purpose. He said that they reached an agreement and “completed our transaction.” Little denied that he talked to Perry at that time, but testified about several phone conversations with Perry earlier on the morning of July 12, before Deaton delivered the letter. He denied that Perry accepted the terms of his letter in the phone conversation. The situation during the trial was that Perry affirmed and Little denied that Perry accepted the terms of the letter in a phone conversation which they had about noon on July 12. Each party testified about actual phone communications with the other, and neither suggested any other type of communication. In this context a separate issue about Perry’s communication would have been another phase or different shade of the acceptance issue which was submitted. Rule 279, Texas Rules of Civil Procedure; Hodges on Special Issue Submission in Texas, § 54 (1959).

The intermediate court also sustained Little’s contention that the contract between the parties required Perry to make an actual tender of the stock on January 22, 1962 and not later. As we read and understand the contract, Perry was powerless to do anything until January 22, 1962 had passed. According to the letter, Deaton had an enforceable right “to pick up this stock * * * on or before January 22, 1962.” Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470 (1945). Little knew that Deaton had this right through January 22, and he knew that he had given Deaton no letter authorizing him to acquire the stock. It was not until January 23 that Perry could do anything, and on that date he wrote Little:

“In accordance with your letter of July 11, 1961, I am writing you to let you know that I am holding 5,000 of Medical Specialties Sales Corporation stock which you have agreed to purchase from me at $5 per share * * *. I am looking forward to hearing from you regarding this matter.”

Little’s final contention is that Perry merely demanded performance, hut failed to make a formal tender to Little of the stock. Little ignored the letter of July 23 and another written three days later. In several phone conversations with Perry’s attorney, Little consistently refused to perform. At no time did he insist upon an actual tender. In our opinion a formal tender of the stock was not necessary. Prest v. Cole, 183 Mass. 283, 67 N.E. 246 (1903); Williams v. Patrick, 177 Mass. 160, 58 N.E. 583 (1900); Duchemin v. Kendall, 149 Mass. 171, 21 N.E. 242, 3 L.R.A. 784 (1889); Brooks v. Scoville, 81 Utah 163, 17 P.2d 218, 221 (1932); Utah Hotel Co. v. Madsen, 43 Utah 285, 134 P. 577, 583 (1913); 17 Am.Jur.2d., Contracts, § 359, 17A. C.J.S. Contracts § 480; 12A Fletcher Cyclopedia Corporations (Perm, ed.) § 5627; accord, Benson v. Meacham, 263 S.W.2d 188 (Tex.Civ.App.1953, writ ref.); Cornelius v. Harris, 163 S.W. 346 (Tex.Civ.App.1914, writ ref.). Perry complied with the agreement to hold the stock for six months during which time it declined in value and became worthless. Little committed himself to purchase the stock if Perry was holding it on January 22, which he was. The rule governing this case is expressed in 6 Williston on Contracts, (3rd ed.) § 833:

“It is said that the strict rules of tender are not applicable to a conditional offer to perform a concurrent condition; that what is essential is that it shall appear to the court and shall have been made clear to the other party to the contract that the exchange agreed upon would be carried out immediately if the latter would do his part. This requirement involves both ability on the part of the plaintiff to perform and an indication of that ability to the other party. The actual production of the money or other thing which the plaintiff is to give is said to be unnecessary.
“As the courts have said ‘the word “tender” as used in connection with such a transaction, does not mean the same thing as when used with reference to the offer to pay money where it is absolutely due, but only a readiness and willingness to perform in case of the concurrent performance by the other party, with present ability to do so, and notice to the other party of such readiness.’ ”

Lyons v. Snider, 136 Minn. 252, 161 N.W. 532 (1917) presented an analogous situation. On August 1, 1912 Snider sold five hundred shares of stock at ten dollars per share and agreed to repurchase the stock for eleven dollars within sixty days after notice by Snider that he desired to sell. The purchaser later notified Snider of his desire to sell the stock and stated that he would deliver the shares upon receipt of the agreed price. There was no physical tender of the stock. The court held that a readiness to deliver the stock upon Snider’s payment of the agreed price sufficed, and quoted a number of authorities including Osgood v. Skinner, 211 Ill. 229, 71 N.E. 869 (1904):

“ ‘We are also of the opinion that the offer to perform the contract was sufficient. The transfer of the stock and the payment for the same were intended to be mutual and concurrent acts, and it was not contemplated that either party should perform some act as a condition precedent to the act of the other. If a contract calls for successive acts, first by one party, and then by the other, there is no breach by one if the precedent act has not been performed by the other; but if the contract contemplates concurrent acts, it is sufficient to put one party in default that the other party is ready, willing, and offers to perform his part of the contract. A tender as applied to such a case, does not mean the same kind of offer as the tender of money in payment of a debt, where the money is offered to the creditor unconditionally and the transaction is completed and ended. It means an offer accompanied with ability to do the act required of one party provided the other will concurrently do what he is required to do.’ ”

The judgment of the court of civil appeals is reversed and that of the trial court is affirmed.


author: PER CURIAM.

text:
    Wayne A. JOHNSON, Petitioner, v. CITY OF CORPUS CHRISTI, Respondent.
    No. B-402.
    Supreme Court of Texas.
    Oct. 11, 1967.
    Fischer, Wood, Burney & Nesbitt, James P. Ryan, Corpus Christi, for petitioner.
    I. M. Singer, City Atty., Robert E. Young, Asst. City Atty., Corpus Christi, for respondent.
   APPLICATION FOR WRIT OF ERROR

PER CURIAM.

This is an appeal from an order of the County Court refusing to grant Petitioner a temporary injunction restraining the Respondent, the City of Corpus Christi, from taking possession of Petitioner’s property in a condemnation proceeding. Such action of the County Court was affirmed by the Court of Civil Appeals, 416 S.W.2d 504. The Respondent has filed in this Court a motion to dismiss the appeal on the ground that the injunction feature of the proceeding is moot, stating as grounds therefor that “The Opinion of the Court of Civil Appeals was issued May 26, 1967, and the City being under no further restraint has taken possession of the property under a writ of possession and dispossessed all persons.” Petitioner has not filed any reply to the motion or otherwise controverted its allegations of fact.

Writ of error is granted without reference to the merits of the matter decided below. The orders of the County Court and the Court of Civil Appeals pertaining to the temporary injunction are set aside, and the cause, insofar as it relates to the matter of a temporary injunction, is dismissed at Petitioner’s cost. Downs v. City of Abilene, (Tex.Sup.) 391 S.W.2d 41 (1965) and cases therein cited.


author: MORRISON, Judge.

text:
    Alfred FLORES, Appellant, v. The STATE of Texas, Appellee.
    No. 40579.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1967.
    Peter Torres, Jr., San Antonio, for appellant. '
    James E. Barlow, Dist. Atty., Gilbert G. Pompa and Teodoro Arevalo, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is sale of liquor in a wet area without a permit; the punishment, a fine of $200.00.

Notice of appeal was entered September 7, 1966. Sentence was imposed March 6, 1967.

A sentence must be pronounced in every felony case and in every misdemeanor case, except where the maximum possible punishment is by fine only, Article 42.02, Vernon’s Ann.C.C.P. (1965), and must be pronounced before the appeal is taken and is requisite to the appeal. Article 42.04, V.A.C.C.P. (1965).

Article 44.08(c), V.A.C.C.P. (1965) provides that “Notice [of appeal] shall be given or filed within ten days after' sentence is pronounced.” The giving of notice of appeal prior to pronouncement of sentence is ineffective compliance with such provision and, as in the case at bar, is not sufficient notice upon which to predicate an appeal. Hollingsworth v. State, Tex.Cr.App., 419 S.W.2d 854 (July 26, 1967). However, as is pointed out in Hollingsworth, Article 44.08(e), V.A.C.P. (1965) provides that for good cause shown the trial court may permit notice of appeal to be given after the expiration of such ten day period provided in subsection (c). In the case at bar the trial court may, if good cause be shown, still permit the giving of notice of appeal, and if he permits the giving of such notice, proceedings may then be had in the trial court pursuant to Article 40.09, V.A.C.C.P. (1965).

It is further observed that the approval by the trial judge entered on the last page of the statement of facts is not sufficient approval as contemplated by Article 40.09, Section 7, supra.

The appeal is dismissed.


author: O’QUINN, Justice.

text:
    Baudelia Carmona GONZALES et vir, Appellants, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 11478.
    Court of Civil Appeals of Texas. Austin.
    June 28, 1967.
    Rehearing Denied Sept. 20, 1967.
    Second Motion for Rehearing Denied Oct. 11, 1967.

      Warner A. Hancock, J. Hubert Lee, Austin, for appellants.
    Clark, Thomas, Harris, Denius & Winters, John Coates, Mary Joe Carroll, Austin, for appellee.
   O’QUINN, Justice.

Baudelia Carmona Gonzales in August of 1964 worked at the task of washing chickens for the L. East Produce firm. She suffered an injury at work, and sought and obtained an award from the Industrial Accident Board. Within the time allowed by law she brought her suit in district court.

This appeal is from judgment of district court setting aside the Board’s award and allowing recovery of medical expenses in the amount of $696. The jury found in answer to special issues that Mrs. Gonzales’ injury resulted in partial incapacity for 17 weeks and that during this period she had a weekly wage earning capacity of $50. It was stipulated that Mrs. Gonzales had not worked 210 days during the year prior to her injury but that another female employee of the same firm who had worked 212 days at the same work earned an average of $48.63 per week. Mrs. Gonzales alleged that her average weekly wage before and at the time of her injury was $58, or, in the alternative, an average weekly wage of $58 would be fair and just to her and to appellee if computation as required by law was not possible.

Under eleven assignments of error, appellant makes three main contentions. Appellant argues (1) that the jury finding that appellant had a weekly wage earning capacity of $50 during disability was not supported by the evidence; (2) that the finding of no total disability, and only partial disability for 17 weeks, was not supported by the evidence; and (3) that cross examination of the doctor who treated appellant, regarding his non-membership in the county medical society, coupled with references to the various other doctors who saw appellant, and argument of counsel to the jury regarding failure of one doctor to testify, caused the jury to return an improper verdict.

Appellant argues that she can not be partially disabled, as found by the jury, without suffering some reduction in her earning capacity. In making this argument, appellant stressed that there was no contention of an inconsistency between the jury finding of $50 per week earning “capacity” and the stipulation that the “actual” earnings of another worker doing the same j ob were $48.63 per week.

The Supreme Court held in 1961, in a case in which the parties stipulated the average weekly wage to be $86.80, that jury findings of (1) partial disability and (2) average weekly wage earning capacity during disability of $86.80 were not fatal, “even when considered with the stipulation of the plaintiff’s average weekly wages.” Indemnity Insurance Company of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830.

We find no substantial difference between the definition of “partial disability” submitted in the case before this Court and the definition construed by the Supreme Court in the Craik case, supra, 346 S. W.2d 830, 831, col. 2. In that case the Court observed that under this definition the jury could find that the claimant had suffered a partial disability without finding that he had suffered “a depreciation or deduction in his earning capacity.” The Court distinguished this definition from the definition used in Employers Reinsurance Corporation v. Holland, 162 Tex. 394, 347 S.W.2d 605, 606, col. 1. In the Craik case, the Supreme Court observed that the definition of “partial disability” in that case was approved in Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991, 994, col. 1.

Appellant pleaded that her average weekly wage was $58. The stipulation of $48.83 as the average weekly wage was not a matter before the jury. The finding of the jury that appellant’s average weekly earning capacity was $50 provided a figure less than the wage alleged by appellant. It is the general rule that a pleading that has not been abandoned, superseded or amended, will be regarded, for the purpose of use as such in a particular case, as a judicial admission, rather than just an ordinary admission. Hughes v. Fort Worth National Bank, Tex.Civ.App., Fort Worth, 164 S.W.2d 231 (writ ref.).

In this case the pleadings for the purpose of use in the suit, were abandoned, or substitution was made for the pleadings, when appellant entered into the stipulation of a weekly wage of $48.83. The pleadings of weekly earnings of $58 will not be binding on her, although by her failure to correct or change the pleadings to conform to the stipulation, the jury may have assumed she still claimed a weekly wage of $58. We are unable to see how a claim of weekly earnings in the amount of $58, however, can have any real relation to the jury’s finding that Mrs. Gonzales had an average weekly wage earning capacity of $50. We believe this finding is not sufficiently supported by the evidence.

It was appellant’s burden to prove that her average weekly wage earning capacity after the date of her injury was less than her weekly wage at the time she was injured. Employers Reinsurance Corp. v. Wagner, Tex.Civ.App., Galveston, 250 S.W.2d 420 (writ ref., n. r. e.).

Prior to employment at East Produce, appellant had worked in 1953 for an ice cream plant where she was paid $18 a week. For about three months, late in 1963 or early in 1954, she worked for a laundry where her weekly wage was $25. The record does not disclose any employment, by which an average weekly wage earning capacity might be gauged, except her work at the ice cream plant, the laundry, and at East Produce.

Mrs. Gonzales had been working for East Produce about three weeks when she was injured. At the time of her injury, ■ Mrs. Gonzales was standing on an iron table, about three or four feet high, wearing a pair of rubber boots as she washed chickens passing in front of her on a conveyor wire. In her right hand she held a little pipe, connected with a water hose, by means of which she applied a stream of water to the chickens. The top of the table was wet and slippery. All of a sudden she slipped and almost fell down. She helped to maintain her balance by holding to the pipe. She told her boss, who was coming up, about the incident and said to him she was scared because she almost fell down. He asked whether she was hurt and she replied, “Well, I don’t know.”

Mrs. Gonzales finished the day at work, but early next morning she returned to the plant and told one of the workers she would not work that day because her back was hurting. On the recommendation of one worker, Mrs. Gonzales went to a chiropractor. On the same day, however, she went to a doctor who had previously attended her mother.

The doctor, Dr. Raul B. Mascarenhas, examined Mrs. Gonzales, found no fractures or dislocations of hones, and diagnosed her injury as “sprain of the muscles.” The injury occurred August 18, and on August 24, the Monday following, she returned to work on the doctor’s recommendation. Mrs. Gonzales worked about two and a half hours that day, but quit because of pain and went back to see Dr. Mascar-enhas. Mrs. Gonzales received treatment from Dr. Mascarenhas from August, when she was hurt, until April 13 of the next year.

Dr. Mascarenhas testified that he declined to take Mrs. Gonzales’ case after her injury until he called East Produce to determine whether she was covered by compensation insurance and to be sure he would be acceptable as her doctor. He gave as his reason, “ * * * because I didn’t want to do all this work and not get paid for it.”

On the initial visit of Mrs. Gonzales, Dr. Mascarenhas made his diagnosis, took X-ray pictures, and applied “diathermy to shoulder.” She returned the following day for “diathermy.” During the month of August “diathermy” or “diathermy and ultrasound” were used in treatment on seven occasions, and on the last day of the month a “local procaine infiltration,” a local anesthetic, was used for the first time, in addition to other treatment.

During the month of September Dr. Mascarenhas saw Mrs. Gonzales twenty times for treatment and on four occasions she had local anesthetic in addition to diathermy and ultrasound. In each of the months of October and November, Mrs. Gonzales was treated on thirteen days, and in December eleven days.

Altogether, Mrs. Gonzales received treatment eighty times. Sixty-four treatments were given between the date of her injury in August and December 30, which was the last date she received the “procaine infiltration.” After January 1, 1965, until termination of treatments by Dr. Mascar-enhas on April 13, Mrs. Gonzales had fifteen treatments, which were about a week apart.

It is observed that Dr. Mascarenhas gave Mrs. Gonzales seventeen “local procaine infiltrations” over a period of approximately seventeen weeks, which coincides numerically with the jury’s finding of partial disability for seventeen weeks. The last such treatment was given December 30, at the end of a period of sixty-four visits to the doctor. For the next period of nearly three and one-half months there were fifteen visits to the doctor and no “procaine infiltration” to relieve pain. Mrs. Gonzales married about a month after she quit going to Dr. Mascarenhas.

In January, 1965, following her injury the previous August, appellant who was then Mrs. Carmona met Juan Gonzales, whom she married in May. She became pregnant and gave birth to a baby in February of 1966. During pregnancy Mrs. Gonzales was attended by Dr. Greenwood Wooten who also delivered the child. She was seen by Dr. Wooten ten to twelve times during gestation.

Mrs. Gonzales testified that during the months of her pregnancy and while under the care of Dr. Wooten she never mentioned to him the injury to her back or shoulder. She testified she did not tell Dr. Wooten about the injury because she did not “think about it.”

At the time of the first examination by Dr. Mascarenhas, he detected muscle spasm, an objective symptom. Her other symptoms, such as tenderness and pain, were subjective. Dr. Mascarenhas testified that the muscle spasm in Mrs. Gonzales’ shoulder recurred from time to time during his examinations and treatment.

“But there were times,” Dr. Mascar-enhas stated, “she would come to the office she wouldn’t have the muscle spasm, but she still would have the pain, that tenderness under pressure, you know, and the fact that she didn’t have the spasm made me think that she was making progress. But sometimes the spasm would recur, well, then, your opinion would change as far as progress or so far as the speed of recovery, you know.”

The muscle spasm was something the doctor could detect by pressure of the hand. Dr. Mascarenhas testified that sprained muscle was a common ailment, just about as common as a headache. The only record he made of a muscle spasm was on the initial visit, although he testified he found the spasm on other occasions. As already pointed out, Dr. Mascarenhas discontinued local anesthetics in December and did not use this measure for pain relief in the period ending April 13 when treatment ceased altogether.

Mrs. Gonzales was examined on two occasions at the request of appellee by Dr. Frederick Lowry, a recognized orthopedic surgeon. The first examination was in December, 1964, while Mrs. Gonzales was under treatment by Dr. Mascarenhas. Dr. Lowry found her normal in every respect except the subjective symptom of tenderness along the inner border of the right shoulder blade. He found no muscle spasm. In the light of her relation to him of the injury, Dr. Lowry diagnosed Mrs. Gonzales’ condition near the shoulder blade to be “a local inflammation of muscle secondary to a trauma, to an injury.”

Dr. Lowry examined Mrs. Gonzales the second time on January 12, 1966. On that occasion the doctor found no tenderness in the area of the shoulder blade, no tenderness over the bone, and no muscle spasm anywhere. “There was a full range of motion of the shoulders and in all joints in the upper extremities,” Dr. Lowry testified. “She was able,” Dr. Lowry stated, “to shrug her shoulders against re-sistence, and this was not painful. There was full motion in the dorsal spine.” No abnormalities were disclosed in this examination.

Mrs. Gonzales testified that on the day of trial in June, 1966, she was in “terrible pain,” that there had been “no improvement” from the day of her injury, and that she thought her condition was “going to be for the rest of my life.” Juan Gonzales, her husband, testified to consistent pain appellant had had throughout their marriage.

The general rule is that the testimony of an interested witness, such as a party to a suit, even though not contradicted, does no more than raise a fact issue to be decided by the jury. Pope v. Beauchamp, 110 Tex. 271, 219 S.W. 447. An exception to this rule arises where the testimony of the interested witness is not contradicted by other witnesses, or attendant circumstances, and the testimony is clear, direct, and positive, and free from contradictions, inconsistencies, and circumstances tending to cast suspicion upon it. Only in such an exceptional instance must the testimony be taken as true as a matter of law. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904; Springfield Fire & Marine Ins. Co. v. Cameron & Co., Tex.Civ.App., Waco, 96 S.W.2d 788 (no writ); Fowler v. Texas Employers’ Ins. Ass’n., Tex.Civ.App., Fort Worth, 237 S.W.2d 373 (writ ref.).

It was the province of the jury to weigh all the evidence and to decide what credence should be given to the whole, or to any part, of the testimony of each witness. It is basic that the jurors, sitting as a jury, are judges not only of the facts proved, but of the inferences to be drawn from the facts, provided the inferences are not unreasonable. Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616 (Tex.Comm.App. 1944, opinion adopted by Sup.Ct.).

The jury heard Mrs. Gonzales and her husband, Juan Gonzales, and the doctor who treated Mrs. Gonzales after she was injured, Dr. Raul B. Mascarenhas. The jury also heard Dr. Frederick Lowry, who had examined Mrs. Gonzales on two occasions, and Dr. Greenwood Wooten, who had seen Mrs. Gonzales ten to twelve times during her pregnancy and had delivered her baby. Documentary proof included Dr. Mascarenhas’ detailed statement for medical services, his written report of examination and diagnosis, and the written report of Dr. Lowry.

It is undisputed that Mrs. Gonzales did not work at any time during the period she was under treatment, except for two or three hours on Monday following her injury when she had to stop work because of severe pain. During the first seventeen to eighteen weeks after her injury appellant was under concentrated treatment by Dr. Mascarenhas. Between August 18, when she was hurt, and December 30, when she received the last “procaine infiltration” to relieve pain, she was treated by the doctor sixty-four times and received seventeen injections for pain relief. For at least this period of time it seems improbable that appellant had an appreciable earning capacity.

We have carefully examined the record and conclude that there was sufficient evidence to support the jury’s finding that appellant suffered partial disability for a period of seventeen weeks.

The finding by the jury that during her period of partial incapacity appellant had an average weekly wage earning capacity of $50 is not sufficiently supported by the evidence.

Appellant’s eleventh and last point of error is stated in full:

“In its proper setting, the effect of the testimony of Dr. Mascarenhas, elicited by counsel for defendant, regarding the doctor’s membership in the Travis County Medical Society and the Texas Medical Society was reasonably calculated to cause such prejudice to appellant’s cause, that an instruction by the Court could not eliminate the probability that it would result in an unjust and improper verdict.”

We do not find anything in the record to show that Dr. Mascarenhas was questioned about his membership in the Texas Medical Society. He was questioned, however, regarding his membership in the Travis County Medical Society.

On direct examination by counsel for appellant, Dr. Mascarenhas testified in the course of being qualified, that he was educated in medical school at Monterrey, Mexico, served an internship at Takoma Park, Maryland, and did social work as a doctor in Mexico. He further testified that he returned to the United States and started practice in Buda, Texas, on a temporary license. He left Buda and went to Washington, D. C., where he worked for about a year in a hospital and in the State Department. He began practice in Austin, Texas, in December, 1961, and in December, 1965, he moved to Cameron, Texas.

At this point counsel for appellant asked Dr. Mascarenhas whether he was a member of the American Medical Association. The doctor’s answer to his question was not responsive as to the American Medical Association. The doctor stated, “I was a member of the local society here [Austin, Travis County], and since I moved to Cameron I am not a member any more. I have an application in the local society there pending.”

Subsequently, on cross examination by counsel for appellee, Dr. Mascarenhas was asked about his membership in the Travis County Medical Society. The entire examination of Dr. Mascarenhas by counsel for appellee on the matter is set out as follows :

“Q Now, Doctor, at the time you were treating her, [Mrs. Gonzales] you were not a member of the Travis County Medical Society, were you?
A I don’t remember if I — I was a member of the Medical Society, but I don’t remember as of that time whether I was or not.
Q When were you a member of the Travis County Medical Society?
A My membership started out, I think it was either February or March of 1962.
Q And then when were you no longer a member?
MR. LEE: May it please the Court, may I approach the Bench with counsel for a second?
Conference at the Bench between Court and counsel out of hearing of the reporter.
Q Sometime prior to the time that you began to see Mrs. Gonzales you were not a member of the Travis County Medical Society; isn’t that correct ?
A I was suspended from membership, and I appealed the decision of the local society to the Texas Medical Association, and I lost. Then I appealed to the Judicial Council of the American Medical Association, and they reversed in my favor, and the local society refused to accept the decision of the Judicial Council of the American Medical Association; and the only solution I had, since they refused to accept the decision of the Judicial Council, was to have to move to another county.
Q All right, sir.
A And the decision of the local society had nothing to do with my ability as a physician or my character or nothing to do with my professional ability or my ethics. It was based on something else, and if you go into this, it is going to take a whole day to explain that.
Q Well, I didn’t even mean to go that far. I was just getting to the point that at the time you were seeing her, you weren’t a member of the Travis County Medical Society.
A When I started seeing her was in—
Q August of ’64.
A Let’s see — technically I still was a member, because as long as — their decision was pending and I was appealing; I was technically a member, yes, sir. And that decision of of the Judicial Council of the American Medical Association didn’t come, I think, until September, and I started treating her in August. When I started treating her I was still technically a member of the Medical Society.
Q All right. But during that time they didn’t allow you to practice in the local hospitals; is that correct— Seton and Brackenridge ?
A I always been a member of Bracken-ridge Hospital.
Q What about Seton?
A I never applied for membership in Seton anyway.
Q All right. I believe that is all.”

The record does not disclose that any objection to this line of questioning was made by counsel for appellant at the time Dr. Mascarenhas was under interrogation.

It appears that objection to this examination was made for the first time in a motion for mistrial after the jury had returned a verdict. The matter was presented a second time in appellant’s second motion for rehearing. The trial court overruled the motion for mistrial and the motion for rehearing.

In support, and by way of clarification, of the phrase “in its proper setting” used in the assignment of error, appellant argues certain other matters which she seeks to link with the cross examination of Dr. Mas-carenhas to show a chain of events so prejudicial as to cause the jury to reach “an unjust and improper verdict.”

These other matters, stated briefly, appear to be four in number.

First, counsel for appellee, when questioning the jury panel prior to selection of a jury, asked whether the panel members knew certain named doctors. Counsel for appellant filed a bill of exceptions stating that the objection had been made and overruled, and exception was taken because the panel had been told appellant would call these doctors to testify. The trial court granted the exception but modified it by stating that counsel for appellee possibly had said the named doctors might testify, but the court did not hear counsel say they would.

Second, counsel for appellee stressed when examining Juan Gonzales, appellant’s husband, that appellant “had been seen by Dr. Wooten, Dr. Ross, Dr. Prewett, and Dr. Lowry, as well as Dr. Mascarenhas.” The record does not show that counsel for appellant interposed any objection at the time to this examination or to any question asked in the course of such examination.

Third, counsel for appellee in examination of Dr. Mascarenhas asked the doctor whether he knew Dr. Ross and Dr. Lowry and in what field of practice they specialized. The objection appears to be that this testimony tended to show that Drs. Ross and Lowry were specialists, orthopedic surgeons, and that Dr. Mascarenhas was a general practitioner, not a specialist. The objection seems to include further the fact that counsel for appellee in cross examination of Mrs. Gonzales “reiterates on the doctors that have seen Plaintiff, and the time when they saw her, and reviewed generally her medical history.” We have carefully examined the record and find no objection by counsel for appellant at the time the testimony under this heading was being developed from the witness stand. Counsel objected once to “repetitive” testimony relating to the specialty and capacity of Dr. Lowry. The court overruled the objection, and counsel did not except.

Fourth, counsel for appellee argued to the jury, “Why hasn’t Mr. Lee brought Dr. Ross to the stand if he had found anything wrong with her ? We don’t know what Dr. Ross found. Why didn’t he bring Dr. Ross to testify?” In rebuttal argument, counsel for appellant offered appellee’s counsel a written report from Dr. Ross and offered to permit appellee to introduce the report in evidence. Appellant’s counsel stated there were many reasons Dr. Ross was unavailable for trial. Counsel for appellee objected to this remark, and the court admonished counsel for both parties to stay within the record.

On direct examination, Dr. Mascarenhas had been questioned in detail regarding his education and experience to establish his qualification. He was asked about his membership in the American Medical Association. The examination of Dr. Mascarenhas on cross examination, touching upon the same subjects, was proper and within the rules controlling such examination. If counsel for appellant had any objection, it was not timely made and was waived. Guerra v. Texas Employers Insurance Ass’n., Tex.Civ.App., San Antonio, 343 S.W.2d 306 (no writ).

The four incidents of trial which appellant argues provide “proper setting” to transmute the testimony of Dr. Mascar-enhas into prejudicial error by the jury are not separately assigned as error in this appeal. We have examined the record of these incidents which we have already described in detail. We can find nothing in them, even when viewed as a link between the cross examination of Dr. Mascarenhas and the findings of the jury, which would justify disturbing the judgment of the trial court.

It is not only customary, but it is a part of sound advocacy for counsel to ask prospective jurors whether they are acquainted with persons, in this case doctors, who might be witnesses at the trial.

The objection now that appellant’s husband was asked about five different doctors who had examined or treated his wife is without merit. We do not find that counsel for appellee “stressed” these facts in his examination, since the matter was covered in less than twenty questions. The examination appears proper, and no objection to it was made at the time.

We find nothing improper in showing by Dr. Mascarenhas that Dr. Lowry and Dr. Ross were by him considered qualified doctors and specialists in medicine as “bone men.” If any of this testimony was considered improper or inadmissible by appellant’s counsel, he had the opportunity to interpose his objection.

The argument of counsel to the jury, regarding appellant’s failure to call Dr. Ross as a witness, was permissible. It was shown at the trial that Dr. Ross had examined Mrs. Gonzales “not too long ago” before the trial. There was no evidence before the jury as to why Dr. Ross was not at the trial. It was not improper for counsel for appellee to comment in argument on the unexplained failure of appellant to call Dr. Ross. Tex-Jersey Oil Corporation v. Beck, 157 Tex. 541, 305 S.W.2d 162.

In support of her contention that these instances, taken in “proper setting,” constitute error, appellant relies upon authorities for the proposition that several improper acts will require reversal even though no one instance would be sufficient by itself to bring about such result. In each of the cases cited by appellant each separate instance was improper.

Repeated personal references to opposing counsel, including the fact he was from another county and represented a corporation, were improper and had nothing to do with a just solution of the issues. Smerke v. Office Equipment Co., 138 Tex. 236, 158 S.W.2d 302 (Tex.Comm.App., 1941, opinion adopted by Sup.Ct.).

Several improper jury arguments, taken together, constituted reversible error, even though any one instance of itself would not be sufficient to cause reversal. National Surety Corporation v. Moore, Tex.Civ.App., Dallas, 386 S.W.2d 327 (writ ref., n. r. e.).

Where counsel persisted in propounding improper questions, not to secure information, but to prejudice and poison the minds of the jurors, the court may order a mis-trail. Morrow v. United States, U.S.C.A., 7th Cir., 101 F.2d 654.

An underlying principle of these cases is that the incidents and conduct of counsel found to be improper were without relation to the merits of the case being tried.

In Smerke v. Office Equipment Co., supra, the several instances of improper conduct of counsel were coupled with an argument to the jury concerning failure to call a doctor as a witness. The Court found the error to lie in the fact counsel attempted to tell the jury what the doctor’s testimony would be, but the court observed, “We think it was the right of defendant’s counsel to call attention of the jury to Dr. Saunders’ failure to testify.” 158 S.W.2d 302, 305, col. 1.

We find these and the other authorities upon which appellant relies under this point of error are without application to the facts of this case. The assignment of error is overruled.

The judgment of the district court in this cause is reversed and remanded for trial.

Reversed and remanded.

ON MOTION FOR REHEARING

Appellant assigned as error that the overwhelming preponderance of the evidence was contrary to the finding of the jury to the effect that appellant’s average weekly earning capacity during the period of partial incapacity was $50 and that the finding was manifestly unjust. After reviewing all of the evidence, we decided that the jury’s finding was so against the weight and preponderance of the evidence as to be clearly wrong and we sustained the assignment.

The cause should be remanded for the reasons stated, and motion for rehearing is overruled.

Motion overruled.


author: BATEMAN, Justice.

text:
    John W. PRICE, Appellant, v. Floyd H. HAKER et ux., Appellees.
    No. 16965.
    Court of Civil Appeals of Texas. Dallas.
    July 28, 1967.
    Rehearing Denied Sept. 29, 1967.

      Richard W. Luerssen and John W. Price, Dallas, for appellant.
    John Fox Holt, Dallas, and Jack G. Howe, Waxahachie, for appellees.
   BATEMAN, Justice.

This is a suit on a promissory note in the amount of $21,698.26 signed by the ap-pellee Floyd H. Haker and payable to ap-~ pellant, and for an additional sum of $550 lent by plaintiff to the defendant on October 2, 1964. In an amended petition appellant sued Floyd H. Haker and his wife, Mary K. Haker, alleging that she was an undisclosed partner of her husband and that the note was executed for and on behalf of her separate property with her consent. The appellees pled that the claims were discharged in bankruptcy and barred by the two-year statute of limitation. Mrs. Ha-ker also pled her coverture. At the conclusion of a nonjury trial the court rendered judgment that appellant take nothing against the appellees. We affirm.

Findings of fact and conclusions of law were filed. No statement of facts was filed, and no attack is made upon the findings of fact. Under these circumstances we must presume that such findings are supported by sufficient evidence and that every fact necessary to support the findings and the judgment, within the scope of the pleadings, was proved at the trial. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683 (1951); Mulcahy v. Cohen, 377 S.W.2d 100 (Tex.Civ.App., Houston 1964, writ ref’d n. r. e.).

For a statement of the facts of the case, therefore, and to give more of the details of the pleadings, we quote the findings of fact, as follows:

“1. On October 2, 1964, defendant Floyd Haker asked plaintiff John Price for a loan of $550.00 to cover expenses of a business trip to Mexico City.
“2. At the time he asked for this loan, Haker represented to Price that he had earned a commission or fee of about $25,000.00 on a transaction involving financing of an apartment house project, which had already been closed in New York City, subject to disbursal of funds, and he exhibited to Price a telegram stating that the transaction had been closed and that the funds due to Haker for the commission would be in a Dallas bank the following Monday.
“3. Such representations were false, and Haker knew they were false at the time he made them.
“4. The telegram exhibited by Haker to Price on October 2, 1964, was a materially false statement in writing respecting Haker’s financial condition and was exhibited to Price with intent to deceive.
“5. On and before October 2, 1964, Haker and Armo-Strut Corporation, in which Haker was an officer and stockholder, were indebted to Price in a substantial amount for loans made by Price and for legal services performed by Price. Price advised Haker on October 2, 1964, that before he would lend any more money, the previous indebtedness would have to be consolidated into one note in the amount of $21,698.26. Haker agreed to do so, and, accordingly, signed the note sued on in that amount, payable $1,698.26 on October 6, 1964, and $2,-000.00 on January 6, 1965, and on the 6th day of each third month thereafter until the entire amount was paid. The new loan of $550.00 was not included in the amount of the note.
“6. Before receiving the $550.00 in cash from Price on October 2, 1964, Haker gave Price a check of First Dallas Corporation, signed by himself as president, in the amount of $2,248.26, drawn on Republic National Bank of Dallas. This amount included the $550.00 borrowed and the first payment of $1,698.26 on the note in question, which was due on October 6, 1964.
“7. When he received the check, Price knew that First Dallas Corporation did not have funds in Republic National Bank sufficient to cover it. Price advanced the $550.00 in reliance on Haker’s representations aforesaid, and such representations were a material inducement to Price in advancing such sum to Haker.
“8. The only money or property received by Haker from Price on October 2, 1964, was $550.00 in cash.
“9. (Same as No. 4.)
“10. On October 2, 1964, Haker made no request for renewal or extension of the previous indebtedness, but agreed to sign the note in question in order to induce Price to make him a new loan of $550.00.
“11. Price deposited the check for $2,-248.26 the following week, but it was returned because of insufficient funds.
“12. Haker has never made any payments on the note in question, nor was the check for $2,248.26 ever paid.
“13. The present suit was filed by Price against Haker on April 24, 1965, seeking recovery on the note alone.
“14. On or about June 15,1965, Haker filed a voluntary petition in bankruptcy in which the promissory note in this suit was duly scheduled.
“15. On October 6, 1965, Price filed his sworn proof of the note in question in the bankruptcy court.
“16. On January 6, 1966, Haker received a discharge in bankruptcy.
“17. On October 21, 1966, more than two years after the occurrence of the October 2, 1964, transaction, Plaintiff filed his Second Amended Petition in which he sued on the said promissory note dated October 2, 1964, and alleged for the first time the following:
“ TIL That the acceptance of the aforesaid note by John W. Price was induced by the fraudulent representations of Floyd H. Haker as to his worth and funds he was to receive and without said fraudulent representations said note would not have been accepted by the Plaintiff herein.
“ TV. That simultaneously with the execution and delivery of the note which is the subject hereof, the Defendant, Floyd H. Haker did execute and deliver to the Plaintiff a check in the amount of $2,248.26, which represented a payment of $1,698.26 plus accrued interest on the debt which was renewed on said note and $550.00 cash. Said check, which is attached hereto marked Exhibit B and made a part hereof for all purposes, was not honored by the bank because of insufficient funds to Plaintiff's damages of $550.00.’
“18. The indebtedness represented by the note in question did not involve the separate property of defendant’s wife, Mary K. Haker.”

Based upon the foregoing findings the court made conclusions of law: (1) that the note sued on was discharged by Haker’s discharge in bankruptcy; (2) that the suit is one in contract, to enforce appellees’ liability on the note, including attorney’s fees, and is not a suit in tort, either for damages for deceit at common law, or for rescission and restitution in equity; (3) that the second amended petition, on which appellant went to trial, does not state a claim in tort for the $550 advanced and, even if it did, such a claim would be barred by the two-year statute of limitations; (4) that appellant’s suit on the note is barred by Haker’s discharge in bankruptcy; (5) that appellant failed to establish any claim against Mary K. Haker which was binding on her separate property; and (6) that Floyd Haker owes appellant $22,248.26, but that appellant has no legal remedy to collect it.

The appellant Price contends that neither indebtedness was discharged by Haker’s bankruptcy in view of § 17 of the Bankruptcy Act (11 U.S.C.A. § 35), the pertinent parts of which are:

“A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as * * * (2) are liabilities for obtaining money or property by false pretenses or false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his financial condition made or published or caused to be made or published in any manner whatsoever with, intent to deceive”.

We do not agree.

In the first place, Price cannot maintain that he was defrauded into accepting the note as an extension or renewal of the prior indebtedness. Haker, being already indebted to him in that amount for loans and legal services, requested an additional loan of $550. Price made the execution of the note for $21,698.26 a condition to his making the additional loan. Haker was not requesting an extension of time. The note was demanded by Price. It was for his benefit, not Haker’s.

In the second place, even if the note could be said to have been induced by fraud, we would be compelled to agree with the trial court that the suit was in contract and not in tort. Price did not allege any measure of damages resulting from tortious conduct on the part of Haker; neither did he seek rescission of the note. On the contrary, he declared on the note and demanded judgment thereon for the full amount thereof and the interest and attorney’s fee stipulated therein. By doing so he waived whatever right he may have had to sue in tort. Sanger Bros. v. Barrett, 221 S.W. 1087 (Tex.Civ.App., Amarillo 1920, no writ); Scott v. Corn, 19 S.W.2d 412 (Tex.Civ.App., Fort Worth 1929, no writ; cert. den. 50 S.Ct. 249, 281 U.S. 736, 74 L.Ed. 1151); Bunting Stone Hardware Co. v. Alexander, 190 S.W. 1152 (Tex.Civ.App., Dallas 1917, no writ).

Price relies on Katzenstein v. Reid, Murdock & Co., 41 Tex.Civ.App. 106, 91 S.W. 360 (Tex.Civ.App., San Antonio 1906, writ ref’d) and Ehlinger v. Speckels, 189 S.W. 348 (Tex.Civ.App., San Antonio 1916, writ dism’d), but those cases are not in point here. In each of them the debt itself was created through false representations. Not so in the case at bar. Price does not even contend that the original debts which were consolidated in the note were created through fraud, and under the circumstances he will not be heard to say that the note itself was so created. The uncontested findings of the trial court will support no such theory.

As to the claim for $550, the amended petition on which Price went to trial does not even allege that he was induced to part with $550 by the false representations, but even if the pleading could be construed to contain such an allegation the claim would be barred by the two-year statute of limitation, Vernon’s Ann.Civ.St, Art. 5526, as held by the trial court. Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 128 A.L.R. 757 (1940); Jenkins v. Kimbro, 380 S.W.2d 189 (Tex.Civ.App., Austin 1964, writ dism’d); Lacy v. Carson Manor Hotel, 297 S.W.2d 367 (Tex.Civ.App., Dallas 1956, writ ref’d n. r. e.).

Price contends that his claim for $550 is not so barred because the filing of the original petition on the promissory note tolled the statute, the claim for the $550 having arisen out of the same transaction in which the note was signed, citing Art. 5539b, V.A.C.S. We do not agree with appellant. In our opinion, the lending of the $550 was “a new, distinct or different transaction and occurrence” and, whether induced by fraudulent representations or not, it was barred. Farmers & Merchants Nat. Bank v. Arrington, 98 S.W.2d 378 (Tex.Civ.App., Eastland 1936, no writ).

All of appellant’s points of error are overruled and the judgment appealed from is affirmed.

Affirmed.


author: PHILLIPS, Chief Justice. HUGHES, Justice

text:
    Bennie DOWNING, Appellant, v. Howard LAWS et al., Appellees.
    No. 11532.
    Court of Civil Appeals of Texas. Austin.
    Sept. 20, 1967.
    Rehearing Denied Oct. 11, 1967.

      Melasky & Bullion, Thomas M. Bullion, E. M. Grimes, Taylor, for appellant.
    Coffee, Ritter & Goldston, Donald N. Goldston, Hardy Hollers, Austin, for ap-pellees.
   PHILLIPS, Chief Justice.

This suit is before us on a plea of privilege.

Appellee Laws, the plaintiff below, filed suit in the District Court of Travis County, Texas naming appellant Downing, Natalie M. Collins and other persons as defendants and, claiming the right of interpleader, deposited $15,000 in the registry of the court. The $15,000 had been given to ap-pellee by appellant as earnest money as part of a contract to convey realty, said amount to be considered as liquidated damages in case of seller’s default under the terms of the contract.

Appellant filed a plea of privilege to the abovementioned suit, appellee filed a controverting plea, while Natalie M. Collins and the other defendants filed a cross-action against appellant claiming that they are entitled to 67% of the earnest money and alleging that appellee Laws is entitled to 33%. Thereupon, appellant filed a plea of privilege to the cross-action. Appellant resides in Williamson County and in each of said pleas of privilege he asserted his right to be sued in that county.

The trial court overruled each of the pleas of privilege, hence this appeal.

We affirm.

Appellant is before this Court on four points of error, briefed together, which are that the trial court erred in overruling appellant’s plea of privilege as to the action by the appellee Laws and as to the action against him by the appeilees other than Laws because “brushing away matters of form and looking only to the substance of things, this suit is really one by appellee Laws and the other appellees against appellant to recover the earnest money deposited by him with appellee Laws;” the error of the trial court in overruling appellant’s plea of privilege as to the action against him by appellee Laws and the action against him by the appellees other than Laws, because the pleadings and evidence show, as a matter of law, appellant is entitled to have the earnest money deposited by him returned.

We overrule these points.

The original suit filed by appellee Laws was for the purpose of obtaining a judicial resolution of competing claims to earnest money deposited with him as an escrow agent under the terms of a realty sales contract. Laws filed his suit against appellant Downing who had signed the contract as purchaser. At this time Downing, who had delivered the abovementioned earnest money to Laws, was demanding the return of the money.

In this same suit against Downing, Laws also sued Natalie M. Collins and the above-mentioned defendants as owners and sellers of the land described in the contract who also were asserting a right to the earnest money Downing had placed with Laws.

Consequently, the abovementioned suit was filed against all such parties in the District Court of Travis County where several of the defendants then resided.

We hold that the trial court correctly overruled both of appellant’s pleas of privilege because Laws filed his interpleader suit in good faith while subjected to competing claims over the ownership of the earnest money he was holding, which claims exposed him to double liability and placed him in a position of real doubt or hazard. That the venue to this suit lay in Travis County where several of the defendants resided at the time. Tex.Rev.Civ.Stat.Ann. art. 1995, sec. 4. McDonald, Tex.Civil Practice, sec. 3.41.

Appellee Laws is not a wholly disinterested stakeholder with respect to the earnest money deposited with him under the terms of the realty sales contract as under certain conditions of the contract he is entitled to a portion thereof. Consequently, this suit might better be described as a suit in the nature of interpleader. At the same time however he has been beset by two wholly opposing and conflicting claims concerning the ownership and proper disposition of the earnest money. It might also be pointed out here that at the time of filing of ap-pellees’ suit, the sellers, before electing to sue for damages for the breach of the contract, had the option of suing for specific performance thereof.

A summary of the positions of the parties hereto at the time Laws filed his suit is as follows: he was holding earnest money as an escrow agent about which opposing parties were making competing and conflicting claims; the claimants competing for the earnest money were all represented by counsel ; the realty sales contract governing the disposition of the earnest money expressly calls for the forfeiture of the earnest money as liquidated damages in the event of the purchaser’s default; the purchaser’s attorneys were asserting a defective title; the purchaser’s attorneys were also, as indicated in their title opinion, asserting a misrepresentation about irrigation rights to the land; in addition, the purchaser claimed that the contract was unenforceable under the Statute of Frauds.

Tex.R.Civ.P. 43 which governs in-terpleader was not intended to limit an action in interpleader to one wholly disinterested in the suit: “It is not ground for objection * * * that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants.” Citizens National Bank of Emporia v. Socony Mobil Oil Co., 372 S.W.2d 718 (Tex.Civ.App. Amarillo 1963, writ ref’d n.r.e.); Franklin Life Insurance Co. v. Greer, 219 S.W.2d 137 (Tex.Civ.App.Texarkana 1949, aff’d in part rev. in part 148 Tex. 166, 221 S.W.2d 857, 1949).

Rule 43 was taken from Federal Rule 22 with minor textual changes. There can be little doubt that Federal Rule 22 was intended to dispense with many of the crippling restraints on interpleader that had developed in equity and to liberalize the practice that, among other things, an interested and hostile party could file an action in interpleader and avoid a multiplicity of lawsuits. John Hancock Mutual Life Insurance Company v. Kegan, 22 F.Supp. 326 (D.C.Md.1938); Barron and Holtzoff, Federal Practice SS 551.

The adoption of Rule 43 in Texas also extended and liberalized the equitable remedy of interpleader. Security State Bank v. Shanley, 182 S.W.2d 136 (Tex.Civ.App. San Antonio, 1944, no writ).

As authority for his proposition that venue does not lie in Travis County, appellant has relied on Noble v. Texacon Industries, Inc., 367 S.W.2d 872 (Tex.Civ.App. San Antonio 1963, no writ). This suit was brought in interpleader and the trial court placed the venue in the county where one of the defendants resided just as was done here. The Court of Civil Appeals reversed the trial court and changed the venue holding that the plaintiff and the defendant (in whose county venue was sustained) were in fact co-plaintiffs. Thus venue was changed to the county of the true defendants. This case can be distinguished from the case at bar in that in the former there was no liquidated damage clause, the contract had been repudiated and the escrow agent’s interest in the earnest money arose out of an entirely separate agreement between the agent and the seller whereby they agreed to split any sum recovered from the purchaser. There was no controversy between them, they were seeking, jointly, to recover the money held in escrow which, should they prevail, would be divided between them under a separate agreement.

At the time appellee filed his suit in the case at bar there is no doubt but that he was beset with conflicting claims on the part of all the defendants which, to concede to the demands of either, he must have acted at his peril.

Likewise we hold that the cross-action brought against Laws and Downing is properly maintainable in Travis County, Texas because it arises out of the same transaction and involves the same issues of fact and law as the original suit. Luse v. Union City Transfer, 324 S.W.2d 935 (Tex.Civ.App.Waco 1959, writ dism’d); Service Drilling Co. v. Woods, 120 S.W.2d 608 (Tex.Civ.App.Austin 1938, no writ).

In his plea of privilege appellant plead the Statute of Frauds, Tex.Rev.Civ.Stat.Ann. art. 3995, and further alleged, “for the purpose of this Plea of Privilege, this defendant would show the court that the subject matter of this suit does not present an enforceable action against this defendant in that the alleged contract involved herein fails to meet the standards prescribed by the statute of frauds * * * which statute this defendant now expressly pleads.”

Appellant contends that the contract is signed C-Bar Ranch, a partnership by Natalie Collins. That it appears on the face of the instrument that the partnership was acting as an entity on its own behalf and that the evidence conclusively shows that the land was not owned by the partnership.

We do not agree with this contention.

The contract of sale on its face shows that Natalie M. Collins was acting not only for herself but for 'others as well. The contract refers to Natalie M. Collins “et al” as sellers and then again refers to the “sellers.” The facts show that the Collins family were partners in the operation of the C-Bar Ranch which included the ownership of cattle as well as personal property.

In the execution of the contract of sale, Mrs. Collins was not only acting as a partner in the sale of the cattle and other personal property belonging to the partnership, but in the sale of the land under a power of attorney to sell such property executed by her children in 1958.

The testimony in this case shows that the power of attorney was in full force and effect at the time of the contract between Downing and Collins.

The face of the instrument shows that Mrs. Collins intended to convey in some additional capacity than as an individual. These and other circumstances shown are sufficient to support a conclusion that she intended to and did convey all the interest in the land that she had power to convey. Crawford et al. v. Morris et al., 228 S.W.2d 364 (Tex.Civ.App.Eastland 1950 n.r.e.). Also see McGraw et al. v. Merchants’ & Planters’ National Bank of Sherman, 34 S.W.2d 633 (Tex.Civ.App.Dallas 1930, writ ref’d). McGraw also distinguishes Hill v. Conrad, 91 Tex. 341, 43 S.W. 789 (1897), relied on by appellant for the proposition that the power of attorney should have been referred to in the contract of sale in the case at bar.

The evidence discloses that the sellers are willing and able to provide the buyer with a deed signed by all of the owners of the property in question and have made this fact known to him. Adams v. Abbott et al., 151 Tex. 601, 254 S.W.2d 78 (1952).

In a venue hearing, a litigant is only required to establish a prima facie case upon which he relies. Reagan County Purchasing Company v. State, 65 S.W.2d 353 (Tex.Civ.App.Austin 1933, no writ). We hold that appellee has made such a case.

The plea of the Statute of Frauds is a defensive issue and goes to the merits of the case, consequently, the trial court properly overruled appellant’s plea of privilege based on this contention. Reagan County Purchasing Co., supra; Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (Tex.Com.App.1936).

The judgment of the trial court is affirmed.

Affirmed.

HUGHES, Justice

(dissenting).

This is a venue suit in which venue is sought to be maintained in Travis County under Sub. 4, Art. 1995, V.T.C.S.

Under this subdivision there are three venue facts (1) one or more defendants must reside in county of suit (2) the party asserting his privilege is at least a proper party which is established by the pleading alone (3) plaintiff has a bona fide claim against the resident defendant which must be established by a preponderance of the evidence. McDonald Texas Civil Practice Vol. 1, Sec. 4.10.2, Gray v. Gulf Oil Corporation, Tex.Civ.App., 416 S.W.2d 875, Fort Worth, n. w. h.

There is no question but that under the authorities a mere stakeholder may select as between the counties in which various claimants reside and file a bill of inter-pleader in any of such counties, and such county will have venue as to all claimants. McCormick v. Southwestern Life Ins. Co., 35 S.W.2d 502, Tex.Civ.App., Waco, n. w. h., opinion by Justice Alexander; Luse v. Union City Transfer, 324 S.W.2d 935, Tex.Civ.App., Waco, writ dismissed.

McCormick cited in support of its decision Nixon v. New York Life Insurance Co., 100 Tex. 250, 98 S.W. 380, from which I quote:

“The remedy of interpleader is an equitable one, and is for the protection of the disinterested and innocent stakeholder, who claims no interest in the money or property as a claimant or litigant, and who, by reason of the conflicting claims of persons who derive their title either from a common source or one from the other, and the uncertain and doubtful position in which he is placed by the diverse claimants, knows not what to do, and fearing he may be hurt by some of them asks instructions, and protection from a court of equity.”

There are no cases, at least none has been cited and I have found none, which hold that an interested stakeholder may file an interpleader proceeding in a county where a claimant resides who has an interest similar to the interest of the stakeholder and hold venue against a non-resident claimant whose claim is adverse to the plaintiff and other claimants.

The only case considering this question is Noble v. Texacon Industries, Inc., 367 S.W.2d 872, Tex.Civ.App., San Antonio, n. w. h. Concededly, this case is distinguishable on substantial grounds not stated by the majority, however it states a principle which I believe is applicable here, and which I quote:

“It will be borne in mind that this is a venue case. All the parties to this suit are domiciled in Harris County except Electrical Company. Brushing away matters of form and looking only to the substance of things, this suit is really one by Texacon and Electrical Company against Noble and Todes to recover the $10,000.00 placed in escrow by them. Venue in Bexar County must rest alone upon the fact that Electrical Company is domiciled in Bexar County. The evidence shows that there is no controversy between Texacon and Electrical Company. They have entered into a written agreement that whatever is recovered from Noble and Todes will be divided equally between them. Texacon and Electrical Company are in truth and in fact co-plaintiffs against the defendants Noble and Todes. Texacon is aligned with Electrical Company in a common fight to recover what they can from Noble and Todes. Under the provisions of our venue statute, Art. 1995, Vernon’s Ann.Civ.Stats., Noble and Todes have a right to have this suit tried in Harris County. The mere fact that the suit is styled an ‘Interpleader’ should not be sufficient to deprive them of their very valuable right, given them by the venue statute, to be sued in the county of their residence.”

In discussing the requirements of sub. 4, Art. 1995, Texas Jur.2d, Vol. 59, Venue Sec. 98, p. 502, states:

“A real defendant, and one against whom the plaintiff has a cause of action, is contemplated by the statute in authorizing a suit in the county of the residence of one of the defendants. It is the actual position of the parties that determines their status; an artificial designation of a party plaintiff as a party defendant gives no right to fix the venue in the county of his residence as against defendants residing in another county.”

To the same effect is Park v. Wood, 146 Tex. 62, 203 S.W.2d 204, from which I quote:

“We have carefully considered the pleadings of the respondents and conclude that no cause of action was stated against Hogan, the resident defendant, within the purview of Exception 4 of Article 1995 of the venue statutes. We cannot find in the pleadings a single issue made between the plaintiffs named and the resident defendant Hogan. Nothing appears in the pleadings which would render Hogan adverse to the plaintiffs in any phase of the rather comprehensive suit. Hogan’s interest according to the pleadings, are aligned with those of the plaintiffs. Obviously no such cause of action has been alleged against the resident defendant Hogan as would deprive Park of his privilege to be sued in the county of his residence under Exception 4 of Article 1995. These conclusions also apply to the proof.”

The problem here is not of simple resolution because I concede that Laws had the right to file an interpleader proceeding and that a reasonable doubt existed as to his rights to one third of the money held by him ($5,000.00) and the right of his principals who are aligned with him to two thirds of such money ($10,000.00) and to the right of appellant to all of such money.

Of course, Laws could have filed his interpleader in Williamson County and received the same protection from double liability as he will receive in Travis County, and no questions of venue could have arisen. It is obvious to me that the dominant purpose of his suit was to recover $5,000.00 for himself, and not to avoid double liability.

It is my view and my opinion that when the reason for a rule disappears, the rule should disappear. The Court’s solicitude for an innocent, impartial stakeholder should not cause them to close their eyes and blindly condone a joint effort by principals and their agent to recover in the courts of Travis County $15,000.00 from a resident of Williamson County when the residents of Travis County upon whose residence as defendants venue must be based are in fact not real defendants but are in fact co-plaintiffs.

For these reasons, I respectfully dissent.

      . These other defendants are: Demra Trube, Albert S. Trube, Jr., Beverly Meyer and George Meyer.

      . “Rule 43. Interpleader
      Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the join-der that the claims of the several claimants or the titles on which their claims depend do not have á common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in any other rules.”

      . The majority has scrambled the venue law by apparently applying to both the cause of action against the resident defendant and the cause of action against the non-resident defendant Downing the rule that plaintiff was only required to establish a prima facie case, which rule, as shown by the authority cited, is applicable to subdivisions of Art. 1995 other than subdivision 4.