text:
    SPANGLER et al. v. SPANGLER et al.
    No. 4054.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 17, 1931.
    A. L. Robbins, of Clarksville, for appellants.
    B. C. Jones, of Clarksville, for appellees.
   WILLSON, C. J.

(after stating the case as above).

It appears in the record sent to this court that the land in controversy belonged to the community estate between appellee’s father, James Spangler, who died intestate in 1903, and his mother, M. E. Spangler, who died intestate in 1926. As one of twelve children of said James and M. E. Spangler, appellee, on the death of his father, took a ½⅜ undivided interest in the land, and, on the death of his mother, took another undivided interest therein.

By a deed dated November 13, 1917, appel-lee conveyed an interest in the land to J. N. Spangler, whose rights and title passed to appellants. In the habendum clause of said deed the interest in the land so conveyed was stated to be an undivided ¾2 interest, but the statement was followed by a clause as follows: “It being my intention to convey all my interest in and to said tracts of land by reason of being a child and legal heir of James Spangler, deceased.”

The controverted question between the parties was, and is, as to whether the effect of the deed was to pass an undivided interest of ¾2 in tJle land to J. N. Spangler, or instead to pass to him an undivided interest of only ½4.

Appellants’ contention was, and is, that in determining the intention of the parties to the deed the habendum clause should be allowed to control, and that the other clause, quoted above, “should be treated as merely a description of the source of title.” They cite Rettig v. Realty Co. (Tex. Com. App.) 254 S. W. 765, 768, as a case supporting their contention. In that case, the property in question was described in the deed from Taylor Harris as all of his “right, title and interest, being an undivided ½ interest inherited • as sole heir of Martha Harris,” 'whereas a part of the interest he owned and conveyed was inherited from Milton Harris, and not from Martha Harris. It was held it appeared the intention of Taylor Harris was to convey an undivided ½ interest in that land, and that describing same as an interest he had inherited as heir of Martha Harris, merely indicated the source of his title and was “not a limitation or restriction on the interest conveyed, as the deed passed not only this particular interest, but all right, title and interest.” It is apparent that a difference, a controlling one, we think, between the case cited and this one lies in the fact that in that one Taylor Harris owned the land in question at the time he conveyed it, while in this one appellee, at the time he made the deed to J. N. Spangler, did not own the undivided y24 interest he inherited from his mother. It is clear to us, that the clause in the deed, in which appellee declared his intention to be to convey only an interest he then owned as an heir of his father, forbids the conclusion contended for by appellants that when appellee described in the habendum clause in his deed the interest he was conveying as an undivided ¾2 he intended by such description to convey the ½4 interest he did not then own, but afterwards inherited from his mother.

If, as we think it should be, the deed is construed as operating to pass to J. N. Spang-ler only the undivided ½4 interest owned by appellee as an heir of his father, of course the contention that the effect of the covenant of warranty in appellee’s deed was to estop appellee from asserting title to the undivided interest he afterward took from his mother should not be sustained.

We think there is no error in the judgment. Therefore it is affirmed.


source: Caselaw Access Project

author: RANDOLPH, J.

license: Public Domain

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. BECKWORTH.
    No. 3649.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 7, 1931.
    Rehearing Denied Nov. 4, 1931.

      Underwood, Johnson, Dooley & Simpson, of Amarillo, for appellant.
    Wm. F. Nix, of Amarillo, for appellee.
   RANDOLPH, J.

This suit is an appeal from an award of the Industrial Accident Board by appellee to the district court of Potter county, as plaintiff, against the appellant, Texas Employers’ Insurance Association, defendant, to recover compensation alleged to be due the plaintiff for injury to himself, suffered on the 10th September, 1929, in Potter county, Tex., while an employee of Willborn Brothers Company at the time he was engaged in unloading a charge car from a truck.

The defendant filed its answer, consisting of a general exception, general denial, and specially pleading that if the plaintiff is or ever has been entitled to have or demand compensation benefits against defendant by reason of the alleged injuries mentioned in his pleadings herein, none of which is admitted but is expressly denied, the plaintiff has been paid such amount and duly received to his use and benefit the sum of $650, and defendant says that such sum has wholly discharged all compensation claims, if any, which plaintiff ever rightfully held in the premises.

In the trial in the district court, the case was submitted to a jury upon special issues, and upon the answers of the jury to same, the court rendered a judgment for the plaintiff. From said judgment appeal has been taken to this court.

The defendant in its first ten assignments of error complains of the admission of facts in evidence showing plaintiffs extreme poverty. Also as to the testimony of plaintiff in answer to the following questions: “How much money did you have on hand when they quit paying you?” Which was asked of plaintiff after he had testified that the association had discontinued the payments of weekly compensation, to which he testified: “I just had the last check they paid me.” The plaintiff was then asked the question: “What had you been using your money for?” Over the objection of the defendant, the plaintiff testified: “To pay grocery bills and house rent.”

The other nine assignments are based upon the questions, asked plaintiff and his wife, as to his inability to provide food and clothing for his family; the fact that he had supported his family on charitable donations by the church people; that he had been compelled to sell his furniture to get food. These facts are also brought out by the evidence of other witnesses, to which due objection was made. The objection was made by the defendant that the evidence was immaterial and irrelevant.

The plaintiff had pleaded extreme poverty-in order to sustain his claim for a lump-sum settlement. This evidence was not irrelevant or immaterial. It shows the dire extremity of the plaintiff and his family and their need for a lump-sum settlement.

The evidence discloses that the plaintiff had, before his injury, supported his family in comfort, and that after his injury he was compelled to dispose of his furniture until only the merest necessities in the way of furniture were left, and that he and his family had been subsisting on church charities since then. From the evidence it appears that he was providing for his family in a way that denoted some degree of thrift in one of his class. Hence, the court did not err in admitting this evidence.

In the case of Consolidated Underwriters v. Saxon, 265 S. W. 143, 146, the Commission of Appeals says: “Weekly payments are provided in the act out of regard for the beneficiaries themselves, and not out of regard for the association or insurance companies. The provision for weekly payments was inserted, because such payments were, in the judgment of the Legislature, for the best interests of those to whom compensation was provided — to prevent squandering and waste. A ‘special’ case is not necessarily determinable by the relative poverty of the claimant. The thrift, intelligence, foresight, habit of frugality, capacity to manage and keep the money of the given claimant, might as well make his a special case as direst poverty. The statute undertakes to leave it to the judgment of the court or jury as to what constitutes a special ease. In such consideration the jury or court is not confined to a consideration of the paucity or profuseness of the claimant’s earning capacity or income. Weekly payments might work the greatest ‘hardship or injustice’ to the claimant having the greatest capacity because there might be, and probably would be, joined with that capacity ability and power to conserve and use beneficially and profitably the whole sum of the association’s liability. Commutation to lump sums have been made in order to enable the employee to invest his compensation in a business of his own.”

The Commission of Appeals, in the case of Herzing v. Texas Employers’ Ins. Ass’n, 17 S.W.(2d) 1046, holds:

“Industrial incapacity (at least incapacity for such work at [as] Miss Herzing had been doing) is established by the verdict. And there is evidence tending to show: Poverty; lack of relationships wherein others are bound for her aid or support; necessity for help in ordinary personal affairs, such, e. g., as bathing or dressing; necessities (with prospects of continuance thereof) requiring expenditures consuming all or a large part of ‘weekly payments’ so as that nothing would be left at end of 401 weeks; possibilities of present (or immediately future) handling of the ‘lump sum,’ or a substantial part thereof, so as to produce revenue or by way of investments resulting in enhanced assets.
“We do not propose definition of a ‘special case.’ But we do hold that the evidence supporting the findings of industrial incapacity (total and permanent) with the other evidence just summarized is some evidence of a ‘special case.’ Cf. Lumbermen’s Reciprocal Ass’n v. Behnken [112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402; Id. (Tex. Civ. App.) 226 S. W. 154], supra; Consolidated Underwriters v. Saxon [(Tex. Civ. App.) 250 S. W. 447; Id. (Tex. Com. App.) 265 S. W. 143], supra; Travelers’ Ins. Co. v. Smith (Tex. Civ. App.) 266 S. W. 574-578; Georgia Casualty Co. v. Little (Tex. Civ. App.) 281 S. W. 1092, 1095. The insurer’s assignment (to the contrary) must be overruled.”

We therefore overrule the first ten assignments of error.

The defendant assigns as error the court’s sustaining of an objection to its question addressed to the plaintiff while he was on the stand, in which he was asked: “What did you do down there that any ordinary unskilled laborer could not do?” The plaintiff partly answers this question: “Well, I don’t know, any man that had any” — which was objected to by plaintiff’s counsel as a supposition. The action of the court, if error, was rendered harmless because the defendant in cross-examining this witness proved by him: “That any ordinary man with strength and with his faculties at his disposal could do what he did down there.”

The witness A. H. Willborn testified for appellant that he is and was the president of Willborn Brothers Company. That they had from twenty to thirty men .employed.

“We carried a policy of workmen’s compensation insurance issued to us that we kept in our possession during the year 1929. As to whether the premium had been paid to put it in force on the 10th day of September, 1929, I will state that the premium on that policy was paid monthly; sometimes maybe two months at one time. * * * Eor me to say that it was paid up to that time I would not want to make that statement. We considered that we had a policy in force all during that year. I do not know where that policy is now. I do not know what became of it. Ordinarily policies out of date are destroyed. I have not made any search for this policy and there was no search made by my office force that I know anything about. I will state that the general rule is that they are destroyed, but I would not say this one was destroyed, for I do not know. I don’t think that I would know where it would ordinarily be found in our'office and I don’t know whether it is there or not. H. O. Willborn was the one who testified before. He was summoned here in this court and I think it was on this case. He is out of town today. I would not say positively that I would know the policy if I would see it again. That would be a matter of memory that I don’t charge my memory with. I could not say whether the instrument 'shown me is a copy of the instrument or not without a comparison. The Texas Employers Insurance Association, I think, is the style of the company that sold the policy to us.
“On the day that Mr. Beckworth was injured, we considered that he was an employee of ours working in the • regular line of his duty. We were paying him for what he did and we were satisfied with the services being rendered on that day.”

Defendant objected to the questions propounded and the evidence sought thereby, on the ground that same called for an opinion and .conclusion on a mixed question of law and fact, which objections were overruled by the court.

In addition to the witness Willborn, R. E. Collier was placed on the stand for the plaintiff, and testified that he was a claim adjuster for the Texas Employers’ Insurance Association and had been for three years. His duties as adjuster for the Texas Employers’ Insurance' Association was to handle all correspondence with reference to the claims and do what adjusting that was to be done. That his files do not show who is protected by the policies of the Texas Employers’ Insurance Association, and he does not know whether they had a policy covering Willborn Brothers Company on September 10, 1929. That does not come in his work and he does not see the policies. All that he has is the accident report that was sent in. He also thinks that there has been some telegrams passed between him and the home office concerning the case. He has never had an expression from the home office as to whether or not there was a policy covering the case. He knows Geo. Crouson. That Crouson carries the title of. assistant secretary to the Texas Casualty Company, and to the Texas Employers’ Insurance Association, and further testified that his company has paid plaintiff something — it was approximately 34 or 35 weeks’, possibly 36 weeks’, compensation, and then testified: “I mean by that, that it is payable by the week, weekly compensation and it wa's compensation my company paid him. I believe that we paid $19.04 a week. I do not know what injury or alleged injury that my company was undertaking to compensate him for when they paid him this money. All I know is the doctors reports that came in and I sent to the home office. That is all I know about it. I think the doctors always start .off by saying that he got hurt on such and such a day. The most of the doctors reports were in reference to his physical condition but some of it is history. I think I know when Albert Beckworth was supposed to have been injured, September 9, 1929, Sept. 9, 1929, I believe is the day. * * * As to my getting letters from Mr. Crouson, I never got a letter from him in my life and I never saw him sign his name in my life. I guess I have seen what purported to be his signature on various documents but I never saw him write his name and I would not know his signature if I was to see it.”

W. T. Howerton, secretary of the Industrial Accident Board of Texas, testified that the notice that they had become a subscriber for compensation insurance is filed by 'Willborn Brothers Company by H. O. Willborn, secretary, and on the part of the insurance compa. ny, which is signed G. M. Crouson, and he attaches a certified copy of same to his depositions. This copy of notice was dated July 7, 1929, and was effective from that date, but was only introduced before the trial court for jurisdictional purposes.

Within due time the plaintiff made the application for compensation for his injuries. This proof was also introduced only for jurisdictional purposes. In fact, all of the jurisdictional steps were taken before the Industrial Accident Board to establish the jurisdiction of the court. This included that the policy under which Willborn Brothers Company operated was effective July 1, 1929, and the number of the policy shown to be No. P-1777.

The question of due issuance of the policy sued on and effective date thereof was a matter for the court to pass on, and the trial court having ascertained that he had jurisdiction, that question was not before the jury.

But should we be wrong in this, then it appears from the quoted evidence, and the evidence clearly raises such issue, that the policy sued on had been issued and delivered to Will-born Brothers Company and was in effect at the time of the accident and injury to the plaintiff. Millers’ Indemnity Underwriters v. Boudreaux (Tex. Civ. App.) 245 S. W. 1025, 1029, affirmed in (Tex. Com. App.) 261 S. W. 137, 140.

The San Antonio Court of Appeals, in the case of Georgia Casualty Co. v. Ginn (Tex. Civ. App.) 272 S. W. 601, 602, says that: “Under the facts in this case, showing the conduct of appellant in making these partial payments and its acquiescence, it does not lie in the mouth of appellant to now deny the issuance of this policy. It was in possession of its own books and records relating thereto, and, if it had not issued such a policy, it was in a position to make the proof, and its silence or failure to produce the evidence will be construed most strongly against appellant.” Citing authorities. See, also, Huddleston v. Texas Pipe Line Co. (Tex. Civ. App.) 230 S. W. 250; Independence Indemnity Co. v. Polk (Tex. Civ. App.) 14 S.W.(2d) 330, 332; Barron v. Texas Employers’ Insurance Association (Tex. Com. App.) 36 S.W.(2d) 464.

The defendant, having acted on the claim pf plaintiff, and having acquiesced to the extent of making 35 or 36 payments, it cannot now deny that it issued such policy.

Under its fifteenth, sixteenth, seventeenth, and eighteenth assignments of error, defendant presents error of the court in varied form in. admitting the following evidence, over defendant’s objection: Whether or not there were employees in Amarillo on the 10th day of September, 1929, who were engaged in the same kind of work the plaintiff was doing for Willborn Brothers Company and who had been so engaged for the year next preceding that day; that he knew there were such employees; that he knew such workmen were engaged in such work regularly for" 9½ hours per day and that they did overtime ; and that such workmen were receiving 60 cents to 65 cents an hour for such labor.

The defendant’s objections were that the testimony sought was a conclusion of the witness, leading and suggestive, and called for an answer which was purely the opinion of the witness.

This evidence was not subject to the objection made, but, if it was, the error was harmless. The defendant had voluntarily made 35 or 36 payments of $19.04 of weekly installments of compensation and thereby conceded the right of compensation as claimed and accepted by the plaintiff. The defendant did not plead in avoidance of this conduct any reason why same should not be counted against it. No pleading setting up mistake or fraud as to why it had made such payments was filed in the case; hence, this contention is not sound.

It has been held that even where a plaintiff had failed to plead and prove an average weekly wage of $18.75, he sufficiently pleaded and proved the average weekly wage of $16.37, for the reason that he did plead and prove the payment by defendant of weekly payments in checks of $16.37. In the case at bar, the defendant pleaded the payment of the sum of $650 by it to the plaintiff, and it was shown by the evidence that such sum was based upon a weekly wage payment of $19.04. We therefore hold that the defendant had recognized the weekly wage to be as claimed by the plaintiff; and overrule this contention of the defendant.

We apply the rule laid down as to the proof of the existence and execution of the policy as laid down in Georgia Casualty Co. v. Ginn, supra, to the question of the proof of the weekly wage.

The appellant’s objections to the testimony of the plaintiff Beckworth and his witness McClelland cannot be sustained by us. They qualified to testify when they swore they knew the value of such services rendered by others in the same class as plaintiff, and the fact that they later disclosed on cross-examination that they knew this like they knew anything else, and they had seen checks issued to other workmen, does not alter the rule. The testimony was admissible, and the question of the correctness of their statements as limited by subsequent testimony was a matter to be passed on by the jury as to the weight to be given it. Byrd Irrigation Co. v. Smyth (Tex. Civ. App.) 157 S. W. 260, 263 (section 8); Gulf, C. & S. F. Ry. Co. v. Stewart (Tex. Civ. App.) 141 S. W. 1020, 1023 (section 4).

The appellant’s contention that the court’s special issue No. 3 submitted to the jury: “Is such total incapacity, if any, permanent?” is an assumption that there was a total incapacity and was on the weight of the evidence, is overruled.

The trial court, having in the first part of his charge submitted the question: “Did the plaintiff Albert Beckworth, sustain any personal injuries on the 10th day of September, 1929?” and, following that, submitted special issue No. 2: “Was the plaintiff Albert Beck-worth, totally incapacitated for work on the 10th day of September, 1929, as the direct result of said injuries, if any, so sustained on said date?” all three of which were answered in the affirmative, including the issue as above quoted, the first two issues being followed by the issue first quoted, that question was a natural sequence to the first two and was proper. The contention that the court did not submit to the jury the continuance'of the state of permanence is hypercritical. “Permanent” includes the life of defendant.

We have discussed such questions presented in appellant’s brief of fifty-three assignments of- error which we deem important and material, but having neither time nor space to write a discussion of each, and having examined all of said assignments, and finding no reversible error, we affirm the judgment of the trial court.


author: O’QUINN, J.

text:
    MILLARD v. MIKSCH.
    No. 2137.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 15, 1931.
    Adams & McAlister, of Nacogdoches, for appellant.
    Hodges & Greve, of Nacogdoches, for ap-pellee.
   O’QUINN, J.

Suit by Miksch against Millard in the county court of Nacogdoches county. The case was tried to the court without a jury, and judgment rendered for $200 in his favor. Appellant excepted to the judgment, and both orally and by written motion timely made request for the court to file his findings of fact and conclusions of law. The record discloses that the court failed to file his findings of fact and conclusions of law, and there is no statement of facts in the record. Appellant filed his assignments of error in the trial court challenging as error the action of the trial court in failing to file its findings of fact and conclusions of law, and same are brought up in the transcript and urged in his brief as reversible error.

The only question is whether the judgment should be reversed and remanded because of the court’s failure to file his findings of fact and conclusions of law. Appellee insists that the assignment asserting this as error cannot be considered because appellant took no bill of exceptions to the failure of the court in this respect, and we find no bill in the record as a basis for the assignment. This contention seems to be well taken. • In order to assign error against the court’s failure to file his findings, after proper and timely request therefor, a bill of exceptions to such failure is necessary. Landa v. Heermann, 85 Tex. 1, 19 S. W. 885; Gunst v. Dallas Trust & Savings Bank (Tex. Civ. App.) 8 S.W.(2d) 806; Kennedy v. Kennedy (Tex. Civ. App.) 210 S. W. 581 (writ refused); Turner Mercantile Co. v. Merchants & Planters’ State Bank (Tex. Civ. App.) 293 S. W. 1119; Warren v. Warren (Tex. Civ. App.) 260 S. W. 1068; Beaumont Irrigating Co. v. Ellison (Tex. Civ. App.) 260 S. W. 245 (writ dismissed).

No reversible error appearing, the judgment should be affirmed, and it is so ordered.

Affirmed.


author: HICKMAN, C. J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. COMER.
    No. 898.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 2, 1931.
    Rehearing Denied Oct. 23, 1931.

      Harry P. Lawther and William M. Cramer, both of Dallas, for appellant.
    Clyde E. Thomas, of Big Spring, for appel-lee.
   HICKMAN, C. J.

The appeal is from' a judgment of the district court on appeal from the Industrial Accident Board awarding appellee a recovery of $5,594 in a lump sum for total permanent disability.

The first question presented relates to the jurisdiction of the trial court, and arose in this manner: The Industrial Accident Board rendered its final ruling and decision on the 15th day of November, 1930. Appellee filed his notice of intention to appeal from the award with said board on November 18, 1930. His original petition was filed in the district court on November 17,1930. His first amended original petition was filed on November 26, 1930. Appellant’s original answer was filed on November 28, 1930. It is the contention of appellant that it was a necessary jurisdictional prerequisite that notice of unwillingness to abide by the award of the board should have been on file with said board at the time the suit was filed, and that, because the original petition was filed prior to the date the notice was- received by the board, the district court acquired no jurisdiction. This contention, we think, does not take into account the fact that appellee’s amended petition was filed after notice of unwillingness to abide by the board’s ruling, had been filed with the board, and within the 20-day period provided by article 8307, § 5, E. S.. 1925, as amended by the Fortieth Leg-, islature, 1927, chap. 223, § 1.. If it be granted that no jurisdiction attached by the filing of the original petition, it does not follow that jurisdiction did not attach upon the filing of the amended petition in lieu of the original, and within- the 20-day period. No question of the sufficiency of the service of citation is involved, for, as above noted, appellant’s answer was filed after the filing of the amended petition. Assignment No. 1 is overruled.

The method for determining the average weekly wage of an employee is set out clearly and particularly in article 8309, § 1, E. S. 1925. The method employed in this case is reflected by special issue No. 2 submitted by the court to the jury over appellant’s objection, which issue reads as follows: “What do you find, by a preponderance of the evidence, was, during the year prior to May 20th, 1930, the average weekly wage, (six-day week), of an employee other than E. C. Comer, while working in Big Spring or some neighboring place, in the same kind of or similar employment to that in which the said E. C. Comer was employed?”

That issue submitted the measure set out in subsection No. 2 of the article above cited. It was held by the Commission of Appeals in an opinion approved by the Supreme Court in the case of American Employers’ Insurance Co. v. Singleton, 24 S.W.(2d) 26, that the burden is on the- claimant to show that compensation cannot be computed under subsection 1 before subsection 2 is resorted to. The evidence in this case fails to discharge that burden, but on the contrary, discloses that appellee had worked for many years in the same employment at which he was working at the time of his injury. He had been working for the same employer for only seven months next preceding his. injuries, but, by the express provisions of subsection 1 of the above article, it is immaterial whether or not the employer remained the same during the period of substantially a year-next preceding the injury. The judgment in this ease was based, not upon the wages actually received by appellee, but upon the average daily wage which other employees of the same class earned. The facts do not support recovery upon this theory, and we must sustain the assignments presenting this question.

Over the objection- by appellant that same -was duplicitous and multifarious, the trial equrt submitted to the jury the following special issue: “Do you find, from a preponderance of the evidence, that the injuries, if any, received by E. C. Comer on May 20th, 1930, as referred to in the testimony and the pleadings, resulted' in total permanent disability of the said E. C. Comer; as this term has been hereinbefore defined to you? Answer Yes or No.”

In passing upon the same' exceptions to a like, issue, the Commission of Appeals, in the case of Lumbermen’s Reciprocal Ass’n v. Wilmoth et al., 12 S.W.(2d) 972, 973, used this language: “We think the special issue is subject to. the objection urged. The statute (article 2189; R. S. 1925) requires that special issues shall be submitted distinctly and separately. This issue, in the form submitted, combined two separate and’ distinct questions of fact, one of which might be answered by the jury in the negative; and the other in the affirmative, or vice versa. A disability may be total, but temporary, or it may be permanent, but partial. The questions as to the totality of the incapacity and the duration of the injury should have been submitted as separate issues. Western Indemnity Co. v. MacKechnie (Tex. Civ. App.) 214 S. W. 456; Railway Co. v. Turner (Tex. Civ. App.) 199 S. W. 868; Tel. & Tel. Co. v. Andrews (Tex. Civ. App.) 169 S. W. 218; North v. Atlas Brick Co. (Tex. Civ. App.) 281 S. W. 608.”

Upon that authority, the assignment presenting this question is sustained.

The other questions presented will not likely arise upon another trial, and need not, therefore, be discussed.

For the errors above assigned, the judgment of the trial court will be reversed, and the cause remanded.


author: JACKSON, J.

text:
    FERGUSON v. PLAINVIEW NAT. BANK.
    No. 3662.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 14, 1931.
    Rehearing Denied Nov. 4, 1931.
    W. W. Kirk, of Plainview, for appellant.
    E. Graham and Kinder & McMath, all of Plainview, for appellee.
   JACKSON, J.

The appellee, a national bank, with its place of business at Plainview, Tex., instituted this suit in the district court of Hale county, Tex., against the appellant, Joe Lee Ferguson, on two promissory notes.

The appellee alleges:

That on June 10, 1930, the appellant executed and' delivered to the First National Bank of Plainview, Tex., his two certain promissory notes, one for the sum of $7,000, due four months after date, and one for the sum of $233.35, due on demand. That each of said notes provide for interest from maturity at the rate of 10 per cent, per annum, each stipulated for 10 per cent, attorneys’ fees. That each of said notes were past due and had been placed in the hands of an attorney for collection.

That said notes, for a valuable considera-, tion, had, in due course of business, been transferred to appellee, and that it is the legal owner and holder thereof, and appellant, though often requested, has failed and refused to pay said notes or either of them, to appel-lee’s damage in the sum of $10,000.

The appellant answered, and, after his general demurrer and general denial, his allegations, in so far as necessary to this appeal, are that on October 21, 1930, after the maturity of the notes sued on, appellee, the Plain-view National Bank, acquired from the First National Bank all' of its assets, including the appellant’s notes, and assumed all the liabilities and obligations - of said First National Bank.

The appellant, after setting out in detail numerous, notes given by him to the First National Bank and the renewals thereof, the notes sued on constituting the last renewal notes, alleges:

That on June 10, 1930, he executed and delivered to the First National Bank his note in the sum of $7,000, payable to said bank four months after date, in renewal of two $3,500 notes, and on the same day executed the other note sued on in the sum of $233.35, due on demand, and bearing interest from date until paid at the rate of 10 per- cent, per annum. That the $233.35 note represented the interest on the $7,000 note for four months, and, as it bears interest from date, it exceeds 10 per cent- interest on the $7,000 note in the sum of $7.77, and by reason of such usurious charge the appellee became bound and liable to appellant in the sum of $482.06, which he claims and demands of plaintiff.

• That prior to the taking over of the assets of the First National Bank by the appellee, and while said bank was engaged in business, the appellant deposited with it for safe-keeping ten certain vendor’s lien notes, each in the sum of $840, dated Nov. 16,1929, due and payable respectively on the 1st day of January, 1931, 1932, 1933, 1934, 1935, 1936, 1937, 1938, 1939, and 1940. That each of said notes bears interest from date until paid at the rate of 7 per cent, per annum, payable annually, and stipulate that all past-due interest shall bear interest from the accrual thereof until paid at the rate of 10 per cent, per annum. That said notes were the property of appellant, and in taking over the assets and assuming the liabilities of said First National Bank the ap-pellee took possession of said notes. That on November 1, 1930, when appellee demanded that appellant pay the two notes sued on, the appellant demanded of appellee the delivery of said ten notes to him, which the appellee refused to do, and thereby converted said notes. That at the date of said conversion the ten notes were of the face value of $8,968, and the appellee became bound and obligated to appellant for said sum. That, had the ap-pellee delivered to appellant his said notes on demand, he could and would have obtained a loan for $8,694.60 for a year by placing said notes as collateral security for said loan, and that said notes on said day and date had a value to the appellant of $8,694.60, and that by reason of the premises the appellee is liable and obligated to pay plaintiff said value of said notes, which sum is in excess of the indebtedness due appellee by appellant on the note sued on.

In a supplemental petition the appellee excepted to all those portions of appellant’s answer seeking to offset appellee’s cause of action by amounts of usurious interest alleged to have been paid and the penalty therefor, because said amounts cannot be offset against plaintiff’s demand. The appellee also excepted to appellant’s allegations relative to the conversion by appellee of appellant’s ten vendor’s lien notes and his allegations relative to. a recovery thereon, because it is an attempt to offset and recover on an unliquidated demand not in any way connected with or growing out of appellee’s cause of .action, which is liquidated.

The court sustained appellee’s exceptions, the appellant refused to amend, and the case was submitted to the court without the intervention of a jury, and judgment rendered for appellee against appellant for the sum of $8,226.13, with interest from the date of the judgment at the rate of 10 per cent, per an-num and all costs of suit, and that the appellant take nothing, from which judgment this appeal is prosecuted.

The appellant presents as error the action of the court in sustaining appellee’s exception to his allegations pleading as a set-off usurious interest, because a national bank contracting for the collection of usurious interest forfeits all interest on the principal.

The note for $233.35 bears the same date as the note for $7,000 and is payable on demand after date “with interest from maturity at the rate of ten per cent, per annum, payable annually.” If, as alleged by appellant, this nóte represented the interest on the $7,000, note, it would be a usurious contract if it bore interest from its daté. Bothwell v. Farmers’ & Merchants’ State Bank & Trust Co. of Rusk (Tex. Sup.) 30 S.W.(2d) 289. But this note provides that it bears interest from maturity, and the parties expressly agree, that the interest on said demand note began on its maturity date, which was October 10, 1930. Under this agreement it is unnecessary for us to determine whether this item could be pleaded as a set-off, because, if the demand note, as agreed, bore interest from maturity and it matured October 10th, the contract was not usurious, for the reason that the $7,000 note matured on that day. •

The appellant assails as error the action of the trial court in sustaining appellee’s exception to appellant’s pleading relative to the conversion by appellee of- appellant’s ten ven-' dor’s lien notes and to his allegations seeking a recovery thereon, because his said ten vendor’s lien notes constituted a liquidated demand, and he was entitled in this suit to recover thereon.

The appellant alleged that appellee received possession of his ten vendor’s lien notes from the First National Bank of Plainview, with whom they had been placed for safekeeping, at the time appellee acquired the assets and assumed the liabilities of said First National Bank. He alleges the date of each of said notes, the amount of each of said notes, the due date of each of said notes, and that said notes were of the aggregate face value of $8,968, and had a value to the appellant in the sum of $8,694.60 at the date of the alleged conversion.

Article 2017, R. O. S., provides in effect that, if plaintiff’s suit be founded on a certain demand, the defendant shall not be permitted to set off unliquidated or uncertain damages founded on a. tort or breach of covenant on the part of plaintiff, unless the counterclaim so pleaded is founded on a cause of action arising out of, or incident to, or connected with, plaintiff’s cause of action.

Appellant’s allegations fail to show that the counterclaim alleged by him arose out of, or was incident to, or connected with, plaintiff’s cause of action. His allegations are that the notes were deposited for safe-keeping, and do not show any connection with his depositing the notes for safe-keeping and his execution of the notes upon which appellee sued; hence appellant was not entitled to urge his notes in reconvention in his cross-action unless they evidenced a liquidated demand.

It appears to be settled in this state' that: “In actions to recover damages for the wrongful conversion of a chose in action, it is the purpose and policy of the law as in other actions for damages to give to the injured party compensation for the damage he has sustained. The ordinary measure of damages . in such cases is the amount prima facie due on the face of the claim. If the claim for the conversion of which the Suit is brought is really of less value than its face it devolves upon the defendant to prove that fact.” Ramsey v. Hurley et al., 72 Tex. 194, 12 S. W. 56, 59.

In Arkansas Fertilizer Co. v. City National Bank, 104 Tex. 187, 135 S. W. 529, 531, the Supreme Court again announces the rule: “That ordinarily the conversion of promissory notes creates a liability in the absence of pleading and proof showing a lesser value for the face value thereof is well settled, not only in this state, but generally.”

See, also, Farmers’ State Guaranty Bank v. Pierson (Tex. Civ. App.) 201 S. W. 424; Peerless Fire Insurance Co. v. Barcus (Tex. Civ. App.) 227 S. W. 368; Pierce v. National Bank of Commerce (C. C. A.) 13 F.(2d) 40, 41, and authorities cited.

In 24 R. C. L. p. 856, the author says: “Un-liquidated damages are such as rest in opinion only, and must be ascertained by a jury, their verdict being regulated by the peculiar circumstances of each particular case; they are damages which cannot be ascertained by computation or calculation — as, for instance, damages for not using a farm in a workmanlike manner; for not'building a house in a good and sufficient manner; on a warranty in the sale of a horse, and other cases of like character, where the amount to be settled rests in the discretion, judgment or opinion of the jury. _ In these and like cases there are no data given for computation; nor can the damages be ascertained by any mode of calculation. It is otherwise as to the amount due on a note, or on a merchant’s account, or for work, labor and services, or for a yard, a piece or a bale, of flannel; the damages in such cases can be readily ascertained by calculation. So in a ease where the counterclaim is for the value of property converted, the fact that the price had not been agreed on does not make it a case of unliquidated damages, within the sense in which this term has been used.”

If the appellee had converted appellant’s notes, as is alleged, appellant had an election of remedies, and could maintain either a suit for the wrongful conversion or for the value of the notes converted upon the promise which the law implies from the conversion. The appellee cannot rely on the fact that it is a tort-feasor to defeat the promise which the law implied to the effect that it would keep the appellant’s notes safely and return them to him on demand.

In Jones et al. v. Hunt, 74 Tex. 657, 12 S. W. 832, 833, the plaintiff sued the defendant for the conversion of money which had been left with the defendant for safe-keeping and delivery to the plaintiff. The defendant pleaded in reconvention several items of indebtedness held by him against the plaintiff, one of which was “that he was the owner by transfer of one promissory note executed by plaintiff.” The court held that plaintiff’s suit for the money left with the defendant for safe-keeping constituted a liquidated demand, stating: “There was an implied contract upon the part of defendant to deliver to plaintiffs, upon their demand, the money received from the express'company. His refusal to deliver it on demand was a breach of the contract, and conversion of the money.”

The court permitted the defendant to recover on the note set up in reconvention, thus in effect holding that the note held by the defendant was such a liquidated demand as could be pleaded in reconvention against a liquidated demand.

In McCarty v. Squyres (Tex. Civ. App.) 34 S. W. 356, in a suit by plaintiff on a note which had been assigned to him after its maturity, the defendant pleaded in reconvention that the payee in the note before it was assigned was indebted to- the - defendant for services, and that such payee had promised to pay the defendant the reasonable worth thereof, which was the sum of $900. The defendant’s plea of counterclaim was struck out on motion of the plaintiff, and the Court of Civil Appeals held that the striking of the plea in reconvention was erroneous because, if proven as alleged, the defendant would be entitled to recover against the plaintiff the amount of his services.

In McKinney v. Southwestern Liquor Co. (Tex. Civ. App.) 201 S. W. 1162, the plaintiff sued defendant on a promissory note and the defendant counterclaimed, alleging that the plaintiff had agreed to pay him the reasonable value of his time in the performance of certain services, and the expenses which he incurred therein, setting up the reasonable value of the services and such expenses, and the trial court sustained an exception to the defendant’s counterclaim.

In passing upon the action of the trial court in sustaining the exception, the Court of Civil Appeals says: “An exception to the counterclaim was sustained upon the ground that the items thereof were unliquidated demands, and could not be set off against the plaintiff’s demand. The items claimed in set-off were not unliquidated. McCarty v. Squyres [Tex. Civ. App.] 34 S. W. 356; De June v. Brubaker, 5 Tex. Civ. App. 79, 24 S. W. 79; [First Nat.] Bank v. Lynch, 6 Tex. Civ. App. 590, 25 S. W. 1642: Snelling v. Koerner [Tex. Civ. App.] 27 S. W. 887.”

In volume 8 Ann. Cas. p. 738, preceding the annotation under the .heading “Rule as -to counterclaim,” 'the editor says: “In those jurisdictions where there are statutory provisions for counterclaims, it seems to be held without exception that where an action ex contractu could be maintained on the wrongful taking or appropriation of the defendant’s property, the defendant may set up such taking or appropriation as a counterclaim against the plaintiff’s liquidated demand.”

This statement is followed by citation of authorities from many jurisdictions.

The appellant, in his counterclaim or cross-action, gave the data from which the face value of the notes could be ascertained by calculation. He alleged the face value of the notes and their value to him. If the value of the notes was less than that alleged, it devolved upon the plaintiff to prove that fact,' and the court was not authorized to sustain appellee’s exception and hold as a matter of law that the value of the notes was less than the face value as alleged by appellant.

It is the purpose and policy of the law of this state to avoid multiplicity of suits. This doubtless is the chief reason for our statute, which permits counterclaims and set-offs, and such statute should be liberally construed.

The judgment is reversed, and the cause remanded.


author: SELLERS, J.

text:
    PAXTON et al. v. FIRST STATE BANK OF TATUM.
    No. 4056.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 17, 1931.
    Sanders & McLeroy, of Center, and Huggins, Kayser & Liddell and John Dawson, all of Houston, for appellants.
    Woolworth & Baker, of Carthage, and Brachfield & Wolfe, of Henderson, for appel-lee.
   SELLERS, J.

This suit arose as an aftermath of the closing of the First State Bank of Tatum, Tex. The bank closed in the latter part of January, 1927. Thereafter a new bank, known as the Tatum State Bank, was formed which took over the assets and equipment of the old First State Bank; stockholders of the old First State Bank guaranteeing the assets acquired, by the new State Bank. Among the assets-of the old First State Bank were found the two promissory notes sued upon herein; one-executed by Wm. Morton Paxton, the former cashier of the First State Bank, and the other executed toy one R. L. Sholar. Both notes were made payable to the First State Bank.

Thereafter on May 29, 1929, the First State Bank instituted this suit in the district court of Rusk county,' Tex., against tlie defendants R. L. Sholar, Wm. Morton Paxton, and the _ American Indemnity Company, which company had been the surety upon the fidelity bond of Paxton. The plaintiffs alleged that, during the life of his indemnity bond, Pax-ton had wrongfully abstracted or willfully misapplied certain moneys belonging to the plaintiff bank, in that the moneys obtained from it by reason of the execution by him of his $1,250 note did not represent a bona fide loan by it to him, and that the transaction was done by him without the consent of the board of directors of the bank, in that the moneys obtained from the bank by reason of the $2,500 note signed by R. L. Sholar and payable to the bank were in fact received by him and not by Sholar, the transaction having been a simulated one in which Paxton and Sholar joined for the purpose of enabling Paxton to obtain money from the bank which he could not by law borrow from it.

The defendant Paxton filed a statutory plea of privilege to be sued in Harris county, the county of his residence. The plaintiff filed a controverting affidavit to this plea of privilege, against which controverting affidavit the plaintiff Paxton urged, general and special exceptions, which were, overruled by the court. And upon the hearing of the plea of privilege, the court overruled the same, tb which action of the court the defendants excepted and gave notice of appeal to this court.

Immediately after the ruling on the plea of privilege, the court proceeded to try the case upon the merits, and by agreement of the parties, the cause was withdrawn from the jury and was tried before the court, resulting in a judgment rendered on February 5, 1931, in favor of the Tatum State Bank and against Paxton and the indemnity company, both jointly and severally, for the sum of $3,250, and that the plaintiff take nothing in its suit against R. B. Sholar. To this judgment the defendants Paxton and the American Indemnity Company duly excepted and gave, notice of appeal to this court, and said cause is now before this court for review.

Error is assigned to the action of the court in overruling and not sustaining the general demurrer and certain special exceptions of the defendant Paxton to the affidavit of plaintiff controverting his plea of privilege.

The material allegations contained in the affidavit of plaintiff controverting defendant Paxton’s plea of privilege are as follows:

“Now comes the First State Bank of Tatum, Texas, Plaintiff in the above entitled and numbered cause and controverts and answers the plea of privilege filed by the defendant Morton Paxton and says, the District Court of Rusk County has jurisdiction and should retain the right to finally dispose of this cause, because the cause of action asserted by plaintiff alleges and the proof will show that Morton Paxton, tlje defendant who filed the plea of privilege, committed fraud and defalcation in that he conspired with one of the other defendants to take and did take moneys and valuables belonging to the First State Bank of Tatum, Texas, all of which was done in Rusk County, Texas.
“Plaintiff would further show that the defendant Morton Paxton did in Rusk County, Texas, commit a trespass by converting moneys belonging to the First State Bank of Tatum, Texas, all of which was done in Rusk County, Texas.
“Wherefore plaintiff prays that this matter be set down for a day certain and that upon a hearing that the defendants’ plea of privilege be not granted.”

These allegations were challenged by general demurrer and special exceptions filed by the defendant Paxton, upon the ground said allegations attempted to allege as grounds for fixing venue in this suit in the district court of Rusk county are merely conclusions of the pleader and do not specifically allege any ground or any fact upon which the plaintiff would be entitled in law to predicate proof in contravention of defendant’s plea and his right to change the venue.

It is a well-established and an un-variable rule that the facts upon which the plaintiff relies for venue must be specifically set out in his controverting affidavit. Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S.W.(2d) 495; Moore v. Investment Finance Co. (Tex. Civ. App.) 299 S. W. 324; Grogan-Cochran Lbr. Co. v. McWhorter (Tex. Civ. App.) 4 S.W.(2d) 995; Bender v. Kowalski (Tex. Civ. App.) 13 S.W.(2d) 201; Spencer v. Temple Trust Co. (Tex. Civ. App.) 36 S.W.(2d) 602-605. It is too clear to admit of any doubt that the allegations of facts contained in plaintiff’s controverting affidavit are nothing more than conclusions of the pleáder and therefore are insufficient to meet the requirements of the law. Wheeler v. Fronhoff (Tex. Civ. App.) 270 S. W. 887; Rector v. Evans (Tex. Com. App.) 288 S. W. 826.

The appellee in its brief has not undertaken to sustain the ruling of the court on the exceptions on the ground that they were sufficient, but it is insisted by the appellee that the language used in the controverting affidavit, to wit, “The cause of action asserted by plaintiff alleges, and the proof will show, that Morton Paxton, the defendant who filed the plea of privilege,”, etc., is a direct reference to plaintiff’s original petition, therefore that the allegation of fact contained in the original petition will be considered to supply those omitted from the controverting affidavit.

It seems to be a well-settled rule that when the pleadings of the plaintiff are at-taehed to the controverting affidavit, or are referred to in such a way as to become a part of same, such allegations of fact contained in the petition, if sufficient, will meet the requirements of the law. Randals v. Green (Tex. Civ. App.) 258 S. W. 528. But under no construction placed upon the language used in the controverting affidavit in this case could it be held that it referred to the petition of plaintiff in such a way as. to make it a part of the controverting affidavit. Jacobson v. Berwick (Tex. Civ. App.) 289 S. W. 1035.

Another ground asserted by appellee as constituting a waiver by appellant of its plea of privilege is that after the plea of privilege, and controverting affidavit were filed and before a hearing by the court on same, appellee, plaintiff in the lower court, filed the following motion: “Comes now the Tatum State Bank of Tatum, Texas, a banking corporation duly incorporated under and by virtue of the laws of the State of Texas and shows to the Court that it has succeeded to all the rights, assets and privileges of the First State Bank of Tatum, Texas, named as plaintiff herein, including the cause of action herein, and it prays that it be substituted and made the party plaintiff herein.” And on the same date the court entered the following order granting said motion, to wit:

“It having been made known to the Court that the Tatum State Bank of Tatum, Texas, a banking corporation under and by virtue of the laws of the State of Texas, has succeeded to all the rights and assets of the former plaintiff, First State Bank of Tatum, Texas, and all defendants agreeing that said Tatum State Bank be substituted as the party plaintiff herein;
“It is ordered, adjudged and decreed that the said Tatum State Bank of Tatum, Texas, be and it is hereby substituted as the party plaintiff herein, instead of the former plaintiff, First State Bank of Tatum, Texas.”

It is contended by appellee that since the appellant, as shown by the above order, agreed to the substitution of the party plaintiff, he thereby waived his plea of privilege. With this contention this court does not agree. As we understand the rule of substitution of parties, it was in the discretion of the court to allow the motion of appellee to substitute the Tatum State Bank of Tatum for the First State Bank as plaintiff without any notice to the defendants and without hearing any evidence whatever. If we are correct in this, it would be rather a harsh holding indeed to say that appellant lost so valuable a right as the right to be sued in the county of his residence by simply agreeing to such an order.

Because of the conclusions reached that the court erred in overruling the demurrer and special exceptions of defendant Paxton to plaintiff’s controverting affidavit, the judgment of the trial court will be reversed, and the cause remanded.


text:
    UNION INDEMNITY CO. v. DRAKE.
    No. 2131.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 21, 1931.
    Rehearing Denied Oct. 28, 1931.

      King, Wood & Morrow, of Houston, for appellant. .
    Howth, Adams & Hart, of Beaumont, for appellee.
   O’QUINN, J.

This suit was brought by appellee, J. W. C. Drake, against the Union Indemnity Company, appellant, to set aside an award of the Industrial Accident Board'awarding him compensation at the rate of $13.85 per week for a period of six weeks, contending that as an employee of B. F. Nelson, and while in the course of his employment, about March 29, ,1930, he sustained an injury resulting in his total and permanent disability. His petition contained the usual and necessary allegations in actions of this kind.

The appellant insurance company answéred by general demurrer and general denial.

The case was tried to a jury upon special issues, on their answers to which, judgment was rendered foi; appellee for compensation, at the rate of $13.85 per week for 200 weeks as for total incapacity. Motion for a new trial was overruled, and the case is before, us on appeal.

Appellant’s first two propositions assert that there was no competent proof that ap-pellee gave the board the notice required by law that he would not abide the board’s award, and would, within the time required by-law, file suit to set same aside, and hence the court was without jurisdiction to hear and determine the matter.

The award of the board sought to be set aside was made on August 19, 1930. The attorneys for appellee, by registered mail, gave notice to the board on August 26, 1930, that appellee would not abide the award and would within the time required by law file suit in some court of competent jurisdiction to set said award aside and to recover compensation under the terms of the Workmen's Compensation Daw of Texas. The proof of the above was by a certified copy of the notice served by appellee on the board. The indorsement on same shows it was received by the board and filed on August 29, 1930. Objection to the admission of this copy was made by appellant on the ground that same was hearsay, which was overruled by the' court, and this action of the court is the basis of this contention. The proof was competent. Article 8307, § 8, R. S. 1925, provides: "Any order, award or proceeding of said board when duly attested and sealed by the board or its secretary shall be admissible as evidence of the act of said board in any court in this State.”

' As the party appealing from an award of the board is required by law to give notice of his unwillingness to abide the award, and as the law prescribes that such notice be filed “with said Board” (Acts 1931, 42nd Leg., c. 208, § 1 [Vernon’s Ann. Civ, St. art. 8307a]) ,it is thus made the duty of the board to indorse upon the said notice the date of its reception and filing, and a copy of said notice duly certified by the secretary of the board is full and competent proof of the fact of notice of appeal. American Employers’ Ins. Co. v. Thompson (Tex. Civ. App.) 11 S.W.(2d) 358; Texas Employers’ Ins. Ass’n v. Perry (Tex. Civ. App.) 35 S.W.(2d) 1087 (writ refused).

The third and fourth propositions are overruled. Testimony that appellee’s injury would, in all probability, be permanent unless a bone expert performed an operation, which, though doubtful, might correct the injured condition of appellee, and that such operation would cost probably a thousand dollars, was admissible as going to show the seriousness and extent of the injury, and its probable duration. It was testified by two reputable physicians that in their opinion appel-lee’s injury would be permanent unless it was remedied by an operation performed by a skilled orthopedic surgeon, one that specializes in bone surgery, and that it was very doubtful if such an operation would effect a cure. They further testified that such an operation was very costly, and would in ail probability cost a thousand dollars. Appellee testified: “I am twenty-six years old. I havé no means or money. I made my living from that kind of work until I got injured. I haven’t done anything since.”

The record amply shows that appellee’s condition was such that without an operation his disability would be permanent, and that he was not able to procure such an eminenl specialist to perform the operation that might result in preventing the disability from continuing permanently. As before said, this evidence was admissible as going to show the seriousness and extent of the injury and its probable duration. Brotherhood of Locomotive Firemen & Enginemen v. Aday, 97 Ark. 425, 134 S. W. 928, 34 L. R. A. (N. S.) 126; Stone v. Day, 69 Tex. 13, 18, 5 S. W. 642, 5 Am. St. Rep. 17. However, if the evidence as to what an operation would have cost was improper, which we do not believe, the evidence showing the necessity of an operation as the only thing that would remedy appellee’s injury, if it would, being admissible as going to show the seriousness and extent of the injury and its probable duration, and the evidence further showing that appellee wa® not financially able to procure such operation, if appellant thought the proof of what such operation would cost would be hurtful to its rights it should have requested an instruction by the court to the jury limiting the consideration of such evidence to the extent and probable duration of appellee’s disability, which it did not do. 3 Tex. Jur. § 129, p. 192.

The fifth and sixth propositions (presented together) show no error. The examination of appellee’s injury before the jury was proper, 22 O. J. § 898, p. 788, and we do not think the matters complained of in that connection did, or were calculated to have any prejudicial effect on appellant’s rights. The further complaint that “the action of the attorney for the plaintiff when closing his argument to the jury, and after starting to read from a letter which had not been introduced in evidence, and after the-court had sustained defendant’s objection to his reading therefrom, in stating to the jury T won’t read the letter, but I can state the substance of it from memory and from the testimony of the doctor, if he wants to be technical and not per-, mit me to read from the letter,’ constituted and was error prejudicial to the rights of the defendant irt that it was calculated to lead the jury to believe that defendant’s attorneys were relying upon technicalities in this case, and were intending to conceal from the jury relevant facts,” is without force. The original letter had been read to the jury by a witness of defendant, Dr. Mills. Appellant’s bill of exception so states. The contents of the letter was before the jury. There is no contention that the copy from which plaintiff’s attorney was attempting to read was not h true copy, but the objection was that the copy had not been introduced in evidence. The physical copy had not, but the original had, and therefore the substance of the copy was in evidence and was subject to discussion by the attorney. In any event, appellant’s bill of exception by the court’s qualification shows that appellee’s counsel in his closing remarks to the jury again referred to the letter, and at that time counsel for appellant withdrew his objections, and so the error complained of, if any, was waived by appellant.

Appellant’s seventh proposition is: “The trial court in this case had no authority to retain jurisdiction over this cause for the purpose of reopening the case upon a «howing that the disability of the claimant had increased or diminished since the trial of the cause.”

In the judgment entered by the trial court, it is provided: “In connection with the above judgment for the weekly installments which have not as yet accrued, it is decreed that same are conditioned upon the continued total incapacity of the said J. W. C. Drake, in that same shall only be payable so long as such liability shall exist, and in this connection the trial court will hold this case on its docket for the purpose of administering the same in accordance with the findings of the jury and in accordance with the Workmen’s Compensation Law, with authority to reopen this case upon the petition of either party upon a showing that the disability of said J. W. O. Drake has increased or diminished since the trial of this cause by said jury.”

It is urged by appellant that the inclusion of the above provision in the judgment was such error as to require that the judgment be reversed and the cause remanded for a new trial.

Appellee insists that the judgment is correct, and cites several authorities so holding.

Several of the appellate courts have held that in compensation cases, such as the instant case, it was proper for and was the duty of -the trial court to enter judgment such as here complained of. Texas Employers’ Ins. Ass’n v. Mullican (Beaumont), 261 S. W. 215 (writ refused); Petroleum Casualty Co. v. Seale (Galveston) 4 S.W.(2d) 90; Maryland Casualty Co. v. Haley (Austin) 29 S.W.(2d) 458, 461 (writ refused). Of the cited cases, writs of error were refused by the Supreme Court in the first and last. The second was reversed, but not on the point in question. But in the case of Eederal Surety Co. v. Cook, 119 Tex. 89, 24 S.W.(2d) 394, the Supreme Court, speaking through the Commission of Appeals, held that the district court was without authority to enter any such judgment, and awarded a writ of mandamus to the district judge trying said cause, and who had incorporated in the judgment the provision here in question, requiring him to give the force and effect of a final judgment to the judgment in said cause. This was a holding by the Supreme Court that the provision of the judgment here in question was of no force and void. This holding in the Cook Case was of date February 19, 1930, the motion for rehearing in the Haley Case, supra, involving the same question was overruled by the Austin Court of Civil Appeals on June 4, 1930, and later the Supreme Court refused writ of error. This was some months after the opinion in the Cook Case. In concluding his opinion in the Haley Case, Judge Blair says: “While the judgment should have incorporated provision for retention of jurisdiction to review or modify on change of condition of appellee, or mistake or fraud, as required by the Workmen’s Compensation Act, still such procedure is not imperative because tbe court would have such authority anyway,” citing the Seale Case. As heretofore said, Judge Blair’s opinion in the Haley Case was handed down after the decision of the Commission of Appeals in the Cook Case, and still later the Supreme Court refused the application for writ of error in the Haley Case. But as the question was beforé the Supreme Court directly for the first time in the Cook Case, and because of the confusion of the holdings on the question, we feel that we should follow the holding in the Cook Case, and therefore hold that in the instant case the court was without authority to incorporate the contested provision in the judgment, and hence said provision was and is void and of no force. See United States Fidelity & Guaranty Co. v. Brandon (Tex. Civ. App.) 31 S.W.(2d) 846; Globe Indemnity Co. v. McClurg (Tex. Civ. App.) 38 S.W.(2d) 125. This, however, does not constitute reversible error, for, the said provision being void, it is the same as if it had never been incorporated in the judgment, and will be eliminated by reforming the judgment.

Appellant’s eighth and last proposition complains that the compensation awarded by the jury is so against the great weight and preponderance of the evidence as to be manifestly wrong, and requires a reversal of the judgment. From a careful consideration of all the evidence adduced in the trial, we think the verdict has ample support in the record.

The judgment of the trial court will be here reformed by eliminating and omitting therefrom the provision retaining jurisdiction to reopen the cause, and, as reformed, is affirmed.


author: FUNDERBURK, J.

text:
    MILLER v. CITY OF ABILENE et al.
    No. 920.
    Court of Civil Appeals of Texas. Eastland.
    July 3, 1931.
    Rehearing Denied Oct. 23, 1931.
    Scarborough, Ely & King, of Abilene, for appellant.
    Henry L. De Busk, of Abilene, for appel-lees.
   FUNDERBURK, J.

This suit as originally filed was brought by the city of Abilene and H. L. De Busk, a citizen of Taylor county, against Hattie Miller to enjoin the latter from operating two hotels in Abilene known as the “Metropolitan Hotel” and “Grand Central Annex.” One of the grounds alleged for the injunction was the operation of said hotels without a permit from the governing body of the city under some provision of the city charter requiring such permits. This basis for the injunction granted will not be further considered, since both in oral argument and in the brief it seems to have been abandoned.

Appellee states that the action was brought under B. S. 1025, arts. 4664-A666. However, the chief contentions of the appellant, as well as the record itself, raise a question in our minds whether the action may not have been intended to be brought under article 4607 as well. Briefly, the petition alleged each and all of the facts which may constitute a nuisance as defined in article 4664, all of which can be dismissed from consideration as having been waived or abandoned, except the allegations to the effect that said hotels are places where persons resort for the purposes of prostitution and that the defendant (thereby) is knowingly and wittingly maintaining a nuisance. The allegations which have raised a question in our minds whether a cause of action may not have been attempted to be stated under It. S. 1925, art. 4667, is as follows : “ * * * Said hotels are openly run in defiance of law, and negroes are stationed at the entrance thereof for the purpose of soliciting men for carnal communication with lewd women and sexual intercourse with them, and the practice has become so common and so notorious that the said places are nothing more nor less than bawdy houses run openly and in defiance of constituted authority in the heart of this city.” This question will be given further notice when we come to consider appellant’s propositions.

Upon the filing of the petition the court set the matter down for hearing after ordering that notice be given the defendant. Subsequently a pleading was filed by Gray Brown, county attorney of Taylor county, purporting to be filed in behalf of the state, which simply adopted and made the pleadings of the plaintiffs, city of Abilene et al., the pleadings of the plaintiff, the state of Texas.. The defendant having answered, the case was tried on its merits. Special issues were submitted to a jury, the only one deemed material being as follows: “Has the defendant, Mrs. Hattie Miller, knowingly permitted prostitutes to remain in the two hotels in question and ply their trade therein? Answer ‘Yes’ or ‘No.’ ” To this question the jury answered, “Yes.”

The judgment of the court shows the city of Abilene to be the plaintiff and Mrs. Hattie Miller the defendant, and makes no reference to the state of Texas as a party. This decree provided: “* * * That the said Hattie Miller be and she is hereby enjoined from operating said hotels, to-wit: Metropolitan and Grand Central Annex, Abilene, Texas, for one year from date, and that the defendant pay the costs of this suit.” It further ordered the clerk to issue the necessary writ embodying a copy of the judgment enjoining the defendant from operating the said hotels. The defendant has prosecuted this appeal, and upon motion of the appellee the cause has been advanced.

By her first proposition appellant insists that, in order to sustain the judgment, the evidence must show that the appellant habitually used her premises for running a bawdy-house, and the evidence wholly fails to show that she did run a bawdyhouse. By her second proposition it is contended that, in order to establish the right of the state to an injunction in a case of this character, it is necessary to show that the premises sought to be enjoined are habitually used as a bawdy-house, and the evidence at bar wholly fails to show that the house was habitually used as a bawdyhouse.

These propositions, when considered in connection with the special issue above mentioned, and upon which the judgment of the trial court is based, suggest that the appellant regards the action in question to be based upon article 4667, and not exclusively upon articles 4664 to 4666, inclusive. The special issue was an imperfect submission under either article 4664 or 4667. Yet, in the absence of objection to the manner of submission, we are unable to say that it was insufficient under either. If it was intended as a submission under article 4667, it should have required a finding that the use was habitual. The failure to do so would have to be taken advantage of by seasonable objection to the form of the issue. If the issue was designed to call for a finding of the facts necessary to constitute a nuisance under article 4664, then it was not necessary that it call for a finding as to habitual use. Proper issues under article 4664 would call for findings: First, as to whether the hotels were places where persons resort for the purpose of prostitution ; and, second, whether the defendant Hattie Miller was guilty of maintaining the same as a nuisance. In case of the submission of such-issues, had the appellant considered that there was no evidence, or that the evidence was insufficient to support either or both of same, it would have been necessary to raise such questions by proper assignments. Questions thus raised of no evidence or insufficient' evidence would be subject to being tested by the provisions of article 4665, and if there was no evidence that the prohibited acts were frequently committed in said places, then perhaps an assignment that there was no evidence could be sustained. We doubt, however, if, with reference to the facts of the existence of a nuisance independently of the question of the defendant’s guilt in maintaining same, there could arise a question of no evidence where there was testimony as to the general reputation of the houses. Such testimony that the general reputation was bad would constitute some evidence.

Under article 4667 the court Rad no power to adjudge that the houses be closed'against lawful uses. The judgment in question must therefore necessarily he referred to articles 4664 to 4667. As said before, we are unable to say that the special issue, was not sufficient under same. This being true, appellant’s said first.and second propositions cannot be sustained. The issue as submitted embodied two material issues in one. Appellant urges no complaint to that, and the contention that he does make would only be applicable if the judgment was wholly dependent upon article 4667, which is not the ease.

Appellant’s other propositions make the point that it was error to admit evidence of general reputation of the house. That question, we think, is foreclosed by the terms of the statute itself. Article 4665, among other things, provides that: “Evidence of general reputation of said houses shall also be admis-sable to prove the existence of said nuisance.” If the statute is valid, a matter which we assume, it seems to us to settle the question.

What we have said may be in need of some clarification which perhaps can best be done by stating briefly our construction of the statutes in question. As already forecast, if the facts relied upon to show a nuisance under articles 4664 to 4666 be that a hotel is a place where persons resort for the purpose of prostitution, two issues are involved, one involving such fact and the other that the ■defendant is guilty of maintaining a nuisance. To be guilty of maintaining such nuisance, the person must knowingly maintain or assist in maintaining the same. Proof of knowingly permitting the same is prima facie established by proof that the prohibited acts are ■frequently committed. Knowledge may be shown that the law is being violated in the house by evidence of convictions of persons for committing the acts. The convictions in turn may be proven by original papers and judgments, or certified copies, aided by parol evidence, if necessary, to show that the convictions were for offenses occurring in the house. On the question of the existence of the facts claimed to constitute a nuisance evidence of general reputation is admissible. When a nuisance is proved under the statutes mentioned, the judgment shall abate the nuisance and enjoin the defendant from maintaining same. Such a judgment is permanent. It-is not limited to one year or for any certain time. In addition to this, the judgment should order that said house be closed for one year from the date of the judgment, unless the defendant in said suit or the owner, tenant, or lessee of said property makes the bond described in article 4666. We do not construe this statute to empower the court to decree absolutely that any hotel, rooming house, etc., mentioned in article 4664 may be closed so as to prohibit the conduct of any lawful business therein. We question, without deciding, whether such a provision would be valid. The court is empowered to order the closing of such house for one year “unless the defendants in said suit or the owner, tenant or lessee of said property make bond payable to' the state at the county site of the county where such nuisance is alleged to exist, in the penal sum of not less than $1,-000.00 nor more than $5,000.00, with sufficient sureties to be approved by the judge trying the case, conditioned that the acts prohibited in this law shall not be done or permitted to be done in said house.” The court is not empowered to order the closing of the house except upon the condition named, and any such judgment, we think, ought to state such condition and prescribe the amount of the bond required to be given.

If this interpretation of the statute is correct, then the appellant has evidently misconstrued same. The record clearly reflects that appellant, as well as appellee and the trial court, considered that the giving of the bond merely worked a supersedeas of the judgment pending appeal. We think, however, the giving of the bond does not, properly speaking, work a supersedeas at all. It is a right given not only to the defendant but to the owner, tenant, or lessee of the property to prevent its being closed for legitimate purposes for any time. When the bond is given, all provisions of the judgment remain permanently in effect just the same as before. By the terms themselves of a proper judgment the house is not to be closed if. the bond is given; and the injunction abating the use of the premises for the unlawful purposes and enjoining the same continues, not for one year, but permanently. The state is protected by the bond, not only against the acts of the defendant, but the owner, tenant, or lessee of the property, and in addition to that the injunction remains in force as against the defendant, subject to being executed by means of contempt proceedings to prevent the unlawful acts.

No such power for closing a building so as to prohibit its use for a lawful purpose is given under article 4667. Under that statute only the unlawful acts may be restrained.

If we correctly interpret the statutes, then the judgment in this case is erroneous on its face. In the first place, it limited the injunction to one year. That may be said to be in favor of appellant and not one of which she is entitled to complain. But the judgment erroneously prohibits the defendant from operating the hotels for one year. This could only have been ordered upon the alternative that neither she nor the owner, tenant, or lessee of the property filed a bond in some amount within the limits fixed by the statute and designated in the judgment. If the statute is not invalid by reason of some constitutional defect, a matter which we do not here consider, but assume the contrary, the judgment might have ordered the houses to be closed and such order would have been effective, not only as to the defendant, but the owner or subsequent lessees and tenants, subject to being relieved of same by the execution of the bond. We think such error is so material and patent that it calls for a reversal of the case.

Upon another trial the pleadings should make certain and definite which statutes are relied upon, and issues should be framed and submitted to provide the proper findings with reference to the different statutes if more than one be relied upon. If relief is granted as provided in article 4666, the judgment should be framed as above indicated. The judgment should make plain that the state is ■a party plaintiff.

It being our opinion that the judgment of the trial court should be reversed and remanded, it is accordingly so ordered.