text:
    Clarence PAULSON and wife, Julia B. Paulson, Petitioners, v. FIRE INSURANCE EXCHANGE, Respondent. FIRE INSURANCE EXCHANGE, Petitioner, v. Clarence PAULSON and wife, Julia B. Paulson, Respondents.
    No. A-10325.
    Supreme Court of Texas.
    June 23, 1965.
    Rehearing Denied July 21, 1965.
    Austin Y. Bryan, Jr., Houston, for Paul-son et ux.
    Baker, Botts, Shepherd & Coates and B. D. McKinney, Houston, for Fire Ins. Exchange.
   NORVELL, Justice.

This is a Hurricane Carla case. The trial court designation of the parties will be used in this opinion. Plaintiffs, Clarence Paulson and his wife, Julia, owned property in Palacios, Matagorda County, Texas, which was severely damaged by the winds and waters which attended the hurricane. The defendant, Fire Insurance Exchange, was the insurer of such property. In a suit brought by plaintiffs, the District Court rendered judgment against the insurance company. The Court of Civil Appeals reversed the trial court’s judgment and remanded the case to the District Court for another trial. 381 S.W.2d 199. As the Court of Civil Appeals at Houston, in Berglund v. Hardware Dealers Mutual Fire Insurance Co., 381 S.W.2d 631, placed a different construction upon the water exclusionary clause of the policy than that placed upon it by the Court of Civil Appeals in this case, we granted writ of error to settle this conflict in interpretation.

After having heard argument in both cases and considered the briefs of the parties, we have reached the conclusion that the judgment of the Court of Civil Appeals in Berglund should be reversed and that, in the main, the views of the Court of Civil Appeals in this case as to the proper construction of the insurance policy should be approved. Fire Insurance Exchange has filed an application for writ of error herein contending that the Court of Civil Appeals should have rendered judgment that plaintiff take nothing rather than ordering a remand for another trial. This position is well taken and the judgment of the Court of Civil Appeals will be modified accordingly.

The policy purchased by Mr. and Mrs. Paulson from Fire Insurance Exchange was a “named peril” policy which insured them “against direct loss resulting from any of the perils (listed below) : * * * E. Extended Coverage—Windstorm, Hurricane, Hail, Explosion, Riot, Civil Commotion, Smoke, Aircraft and Land Vehicles.”

Under the heading “Specific Coverage Conditions” appears the following exclusionary clause: “Conditions applicable only to windstorm, hurricane and hail: Unless specifically named hereon this Exchange shall not be liable for loss to metal smokestacks * * *, nor for loss caused * * * by snowstorm, tidal wave, high water, or overflow, whether driven by wind or not, unless the wind or hail shall first make an opening in the walls or roof of the described building and shall then be liable only for the loss to the interior of the building, or the insured property therein, caused immediately by rain entering the building through such openings.”

The policy sued upon covered a residence house, an outbuilding and certain unscheduled personal property situated in such residence and outbuilding. The case was submitted to the jury and judgment rendered in the trial court upon the theory that if the damage to plaintiff’s property was the direct result of Hurricane Carla the defendant was liable. For example, the issue relating to the residence house and the jury’s answer thereto were as follows:

“Do you find from a preponderance of the evidence that plaintiffs’ residence house on Lot S, Block 97, Palacios, Ma-tagorda County, Texas, was damaged on or about September 10 and 11, 1961, as a direct result of Hurricane Carla?
We the jury answer — yes.”

The following definition was applicable to this issue:

“By the term, ‘proximate cause’ or ‘direct cause’ as used herein is meant a cause which in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which the event would not have happened.”

A similar question was asked as to an outbuilding on Lot 5, Block 97, and personal property belonging to the plaintiffs and located in the building on said Lot 5, Block 97, and affirmative replies were returned by the jury.

In addition to these answers, the jury answered “no” to issues inquiring if the residence house, outbuilding and personal property of plaintiff had “sustained loss and damage as a direct result of tornado winds passing in the area of plaintiffs’ property.”

The jury was also asked in three issues if they found from a preponderance of the evidence that plaintiffs’ residence house “did not sustain loss which was directly caused by high water, whether driven by rain or not.” These issues were all answered, “Did not sustain such high water loss.”

Some seven issues were submitted relating to the dollars and cents amount of damages, such as repair costs and the value of the various items of property before and after the passage of the hurricane.

We have examined the Statement of Facts in some detail. We conclude that there is no dispute but that plaintiffs’ property sustained loss and damage as a result of Hurricane Carla. The Court of Civil Appeals held that the jury’s findings that plaintiffs’ property did not sustain loss caused by “high water, whether wind driven or not” was against the overwhelming preponderance of the evidence. We think that the evidence shows conclusively as a matter of law that a substantial portion of plaintiffs’ loss or damage was the result of wind driven water.

In Hardware Mutual Dealers Insurance Company v. Berglund, Tex., 393 S.W.2d 309, this day decided, we held that although it could be said that the hurricane caused the loss, yet, nevertheless the plaintiffs could not recover unless they were able to establish that the loss did not come within the exclusionary clause relating to “tidal wave, high water, or overflow, whether driven by wind or not.” We need not repeat what was said there. In the present case, it appears that water damage contributed to plaintiffs’ loss. The concise and accurate statement of the evidence contained in the opinion of the Court of Civil Appeals conclusively demonstrates this. 381 S.W.2d 199, 1. c. 200. In McDonald v. New York Central Mutual Fire Insurance Company, 380 S.W.2d 545 (Tex.Sup.1964), we held that a plaintiff could recover under an insurance policy similar to the one now before us by showing that the damage to his property was occasioned by the winds of the hurricane rather than by the high waters accompanying the storm. In the Berglund case above mentioned, the trial judge submitted the case to the jury upon the theory that the evidence disclosed that a portion of Berglund’s damage was not caused by an excluded peril, namely, “tidal wave, high water, or overflow, whether driven by wind or not."

Plaintiff’s theory of recovery as set forth in their application for writ of error is that “the insuring clause by the use of the word ‘hurricane’ should be construed and found to cover all losses directly and proximately caused by Hurricane Carla, including any and all parts of such losses caused in whole or in part by water, hurricane surge, wind and spray, rising ocean waters, as well as oil, debris, pollution and other conditions forming inseparable and integral part of a hurricane when it makes a landfall on the Texas coast. * * * [Plaintiffs] unreservedly contend that the rule of proximate cause controls and that every submission to the jury in a hurricane case should be submitted in the context and brackets of proximate cause and new and independent cause. * * * [T]he use of the word ‘direct’ loss in a Texas form of insurance policy modifies the loss result rather than the cause or causation.”

The plaintiffs in effect repudiate the theory that they would be entitled to recover for any loss caused by the force of hurricane winds alone and no requests for an alternative jury submission were made based upon such theory. The evidence shows that hurricane winds of high velocity blowing from the north and northeast reached the Palacios area sometime Saturday night (September 9). Originally the wind was unacccompanied by high water. However, about five o’clock on the evening of Monday, September 11, the wind had changed to the southeast and was blowing across the bay at this time. This brought the high waters inland along the coast. There was considerable testimony as to the force of the winds prior to the appearance of the high water. One witness reported seeing a waterspout or tornado funnel. However, no witness testified that he saw the Paulson house during this time. The nearest anyone came to this was the statement of one witness that some “buildings were down before the water came up and I honestly believe that Clarence Paulson’s house was tore up. * * * ” This remark was stricken from the record by the trial judge.

After the hurricane had passed, plaintiffs’ residence house remained standing and was in a repairable condition. One witness who submitted a bid for restoring the building mentioned an item of $180.00 for ninety square feet of wall, and volunteered the statement “that means the total wall section which was blown out.” However, there was no evidence from eye witnesses as to damage done to the plaintiffs’ property by wind action alone, nor did anyone attempt to estimate the proportionate part of the damage caused by wind action, independent of all other causes, considering such factors as the force of the winds and the type of construction represented by plaintiffs’ building. It is essential that the insured produce evidence which will afford a reasonable basis for estimating the amount of damage or the proportionate part of damage caused by a risk covered by the insurance policy. This was not done in this case.

For the reasons stated the judgment of the Court of Civil Appeals is reformed so as to provide that the judgment of the trial court be reversed and judgment rendered that plaintiffs take nothing. As so reformed, the judgment of the Court of Civil Appeals is affirmed. London Terrace Inc. v. McAlister, 142 Tex. 608, 180 S.W.2d 619 (1944).

POPE, J., not sitting.

      . In its reply brief, the defendant quotes from a report of the State Board of Insurance dated October 20, 1961 as follows:
      “Traditionally, insurance companies in the United States have refused to insure property at fixed locations against flood, rising waters, tide waters, or tidal waves, or other surface waters. * * *
      “[Ojur Staff has tried since ‘Carla’ to find out if there was any carrier in the world that would write flood insurance on the Texas Gulf Coast (other than for some risks like causeways, etc.). None has been found, but we cannot say definitely that it could not be done. It seems that Lloyds of London will no longer write such coverage on normal dwellings and commercial type buildings. However, at the last time it did write such coverage it charged a premium of $8 per $100 of insurance. * * * ”

      . Plaintiff’s position was forcibly stated by counsel at the beginning of the trial as follows:
      “I plead that a hurricane is a natural phenomenon that cannot be separated. I will be putting in evidence to show that it cannot come ashore without having wind, rain and water mixed in at the very source. The power of a hurricane is energy that comes from water. Therefore, that the policy, when it tried to exclude that, constitutes a fraud if it did not intend to insure anything less than a whole hurricane.”
      This position is contrary to the theory of recovery allowed by the trial courts and this Court in both McDonald v. New York Central Mutual Fire Insurance Co. and Hardware Dealers Mutual Insurance Co. v. Berglund, heretofore mentioned.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    George Kerry DRAKE, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 14598.
    Court of Civil Appeals of Texas. Houston.
    June 24, 1965.
    Rehearing Denied Sept. 9, 1965.

      Don Brown, La Marque, and Engelke, Brown & Holbrook, La Marque, of counsel, for appellant.
    Jules Damiani, Jr., Criminal Dist. Atty. of Galveston County, and Ronald L. Wilson, Asst. Criminal Dist. Atty. of Galveston County, for appellee.
   WERLEIN, Justice.

From appellee’s order suspending appellant’s Texas Operator’s License for a period of twelve months, made after an administrative hearing in the Justice of the Peace Court, Precinct 5, Galveston County, Texas, on February 5, 1964, appellant appealed to the County Court No. 2 of Galveston County, praying that said order of suspension be set aside. That court granted a summary judgment on December 17, 1964, authorizing appellee to suspend appellant’s driver’s license for one year under Article 6687b, Section 23, Vernon’s Annotated Texas Statutes, and denied appellant’s motion for summary judgment. Appellant on appeal to this Court contends that the court’s action in both respects was contrary to law.

Appellee alleged in its second amended original answer that appellant “has committed an offense for which automatic suspension of license is made upon conviction under Article 6687b, Section 225, V.A.T.S. to-wit: Driving While License Suspended in Harris County, Texas, on or about the 20th day of August, A.D. 1963.” Appellee also alleged that “George Kerry Drake, was convicted of Driving While License Suspended in Cause Number 11,276 in County Court No. 2 of Galveston County, Texas, on the 23rd day of April, A.D. 1963,

Appellee prayed that its action in suspending appellant’s Texas Operator’s License No. 0659270 and driving privileges issued to appellant be in all things confirmed as being in conformity with the law, “and that the suspension of any and all licenses issued to Plaintiff (appellant) herein be made effective upon final judgment in this cause, * * * and that such suspension continue for such period as set forth in the order issued by the Texas Department of Public Safety on or about the 19th day of February, 1964; * *

Appellee pleaded in its second motion for summary judgment, which was granted, “C. Section 22(b) of Article 6687b, which declares:

“ ‘The authority to suspend the license of any operator, commercial operator, or chauffeur as authorized in this section is granted the Department upon determining after proper hearing as hereinbefore set out that the licensee: has committed an offense for which automatic suspension of license is made upon conviction, to-wit: Driving While License Suspended.’ ”

In answer to appellee’s said motion for summary judgment, appellant pleaded in his counter-motion for summary judgment the following definition of the offense of “Driving While License Suspended”:

“Section 24(c) of Article 6687(b) of Texas Revised Civil Statutes, which reads as follows:
“ ‘The suspension of any license shall be automatically extended upon licensee being convicted of operating a motor vehicle while the license of such person is suspended; such extended period of suspension to be for a like period as the original suspension, and is in addition to any other penalty assessed, as provided in this Act.’ ”

The summary judgment from which appeal has been taken decrees: “that Defendant’s Motion for Summary Judgment be granted, thereby authorizing the Defendant to suspend said Plaintiff’s operator’s license No. 0659270 and driving privileges for a period of time not to exceed one (1) year, as provided in Article 66875, V.A.T.C.S., Section 23; * * Section 23 of such Article merely provides that “The Department shall not suspend a license for a period of more than one (1) year.” It does not authorize the suspension of a license for conviction of operating a motor vehicle while the license of such operator is suspended.

We find no provision in Article 6687b, Sec. 22, authorizing the suspension of a driving license because a person operates a motor vehicle while his license is suspended. Section 22(b) does grant to the Department the authority to suspend an operator’s license upon determining after a proper hearing that the licensee is guilty of any one of some nine different things, including: “1 Has committed an offense for which automatic suspension of license is made upon conviction.” Article 6687b, Section 24(a), which provides for automatic suspension of license, enumerates five different offenses for which a license shall he suspended upon conviction. It does not include in such enumeration the operation of a motor vehicle by one whose license has been suspended. Article 6687b, Section 24(c), hereinabove set out, however, does provide that the suspension of any license shall be automatically extended upon conviction of operating a motor vehicle while the driver’s license is suspended; “such extended period of suspension to be for a like period as the original. suspension * * The Department, therefore, had the authority to extend appellant’s period of suspension, if such existed, for a like period after the original suspension. The trial court could not give the Department greater authority than provided in the statute.

It is necessary, therefore, to determine whether appellant’s driver’s license was suspended at the time he was convicted of driving while his license was suspended, and if so, the period for which it was suspended. Appellee based its second motion for summary judgment in part upon the affidavit of Jessie C. Lewis, Deputy Custodian of the Department of Public Safety, Driver & Vehicle Records Division of the State of Texas, which affidavit purports to have been made upon personal knowledge. The affiant sets out the operating record of George Kerry Drake, the holder of Texas Operator’s License No. 0659270. It is a long record extending back to November 22, 1961 when there was an affirmative finding that said licensee was an habitual violator of the traffic laws. It will not be necessary in deciding this case to set out the entire record.

Appellee pleaded and the record shows that appellant was convicted on April 23, 1963 of driving on April 10, 1963 while his license was suspended, and that his license was suspended for an additional six months from August 27, 1963. This suspension would continue until February 27, 1964. The record also shows that on November 20, 1963 appellant was convicted of driving on August 20, 1963 without a valid operator’s license. There is no pleading covering this offense nor is there any record of any suspension or extension of suspension by the Department covering such offense. Appellant’s exceptions to paragraphs II and IV of appellee’s request for admissions referring to this offense were properly sustained. The summary judgment of the trial court was not based upon the conviction for the offense of driving without a license on August 20, 1963.

The Department’s order attacked herein by appellant, made on February 19, 1964, orders the suspension of appellant’s license for twelve additional months effective from February 27, 1964. Under Sec. 24(c) of Article 6687b, V.A.T.S., appellant’s suspension was authorized for only an additional six months since the original suspension upon which the Department’s order was based was for six months. This will extend the suspension until August 27, 1964. Appellant’s petition was filed on March 3, 1964. The filing of the petition abated the suspension under Article 6687b, V.A.T.S., Section 31, from the date of such filing until final judgment herein. It is our view, therefore, that the judgment of the trial court was in error and should be modified by ordering that the suspension of appellant’s license be extended for a period of six months from February 27, 1964, the effective date of suspension, and continue from date of final judgment herein, after crediting time elapsed from February 27, 1964 to March 3, 1964. Article 6687b, Section 31; Texas Department of Public Safety v. Perlman, Tex.Civ.App., 340 S.W.2d 522.

In passing on appellee’s motion for summary judgment, the court had before it in evidence the pleadings and exceptions of the parties, the affidavit of Jessie C. Lewis, Deputy Custodian of the Department of Public Safety Driver & Vehicle Records Division, the motions of both appellant and appellee for summary judgment, appellee’s request for admissions and appellant’s response thereto. We are of the opinion that such evidence was and is sufficient to support an order extending appellant’s driver’s license suspension for a period of six months from February 27, 1964, as herein above stated. Appellant in his original petition on appeal from the order of the Department pleaded his Operator’s License No. 0659270 and attached to his plea the order of the Department which identifies him as having such license number. In said affidavit of Jessie C. Lewis the record is the record of George Kerry Drake, the holder of said Texas Operator’s License No. 0659270 which appellant alleged was his license number. The present action is not one for the conviction of a criminal offense and punishment therefor. If it were, it would not be before this Court. The cases cited by appellant bearing upon the sufficiency of an information in a criminal prosecution are not applicable to the factual situation in the present case.

Furthermore, it is our view that the trial court properly considered as admitted the request for admission by appellant that he was the same George Kerry Drake who was convicted on April 23, 1963 of driving while his license was suspended. Appellant’s response to this request for admission was evasive and showed no effort to ascertain the fact inquired about. The court had before it the request and response and it had the authority to consider the same without any motion to deem such answer admitted. Rule 169, Texas Rules of Civil Procedure; Montgomery v. Gibbens, Tex.Civ.App., 245 S.W.2d 311; McPeak v. Texas Department of Public Safety, Tex.Civ.App., 346 S.W.2d 138.

There is no reversible error in connection with the trial court’s action in denying appellant leave to withdraw his notice of appeal and file a motion for new trial. The court’s judgment was entered December 17, 1964. On December 28, 1964 (December 27, 1964 falling on a Sunday), appellant filed his motion to withdraw his notice of appeal and to file a motion for new trial, which motion the court denied. There was no good reason or necessity for filing such motion. The giving of notice of appeal was only a preliminary step in the procedure provided for appellate review. It did not prevent appellant from filing of a timely motion for new trial. The trial court’s permission or denial could not in any way affect appellant’s right to file an original motion for new trial regardless of whether he had given notice of appeal. No court has the authority to deny a litigant the right to file a motion for new trial nor to hold one in contempt for doing so. This Court will presume that the trial court denied appellant’s motion because it was an unnecessary motion and one that requested the court to do an unnecessary thing and one not within its province. It will also be presumed that the trial court would not have held appellant in contempt of court had appellant filed his motion for new trial, as he had the right to do, although the court had denied appellant’s motion previously filed. Our Supreme Court has recently held that although Rule 329b, T.R.C.P., provides that an amended motion for new trial may be filed by leave of court within the time provided by such rule, the filing of an amended motion is a matter of right and it will be considered even though it is filed without leave of court. The rule does not require leave of court to file an original motion for new trial. See Consolidated Furniture Company v. Kelly, Tex.Sup.1963, 366 S.W.2d 922.

Appellant contends that the trial court erred in overruling his special exception to appellee’s second motion for summary judgment on the ground that appellee’s first motion for summary judgment had been overruled and there is no authority for filing a second motion for summary judgment. The first motion was. filed March 17, 1964 and the second motion was filed November 3, 1964. The first motion was obviously incomplete and was excepted to by appellant. After such motion was overruled on May 11, 1964, additional pleadings were filed including appellee’s second amended original answer and first supplemental answer, and additional evidence was submitted including appellee’s request for admissions and appellant’s response thereto, and also the affidavit of Jessie C. Lewis covering the driving record of appellant. Rule 166-A, T.R.C.P., provides:

“(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.”

Appellee’s second motion for summary judgment was quite different in several respects from its first motion. We know of no rule of law that would prevent appellee under the circumstances of this case from filing a second motion for summary judgment after its first motion has been overruled. Furthermore, appellant has failed to show that the court committed any error in granting appellee’s second motion for summary judgment that resulted in harm or prejudice to appellant.

Appellant complains that the trial court erred in overruling his Special Exception No. Ill to the affidavit of Jessie C. Lewis because such affidavit contains only conclusions of the affiant. The affidavit of Jessie C. Lewis, Deputy Custodian of Records, Driver & Vehicle Records Division, Department of Public Safety, constituted a certificate made in the performance of his office and official duties. In such affidavit the affiant certified to appellant’s driving record as shown by the records of the Driver & Vehicle Records Division of the Department of Public Safety. Such certificate showing the operating record of appellant was admissible as prima facie evidence of the matters stated therein. Article 3731a, Secs. 1 and 3, V.A.T.S.; Texas Department of Public Safety v. Miller, Tex.Sup., 386 S.W.2d 760; Texas Department of Public Safety v. Richardson, Tex.Sup. 1964, 384 S.W.2d 128, and cases cited therein; Rice v. State, 163 Tex.Cr.R. 367, 292 S.W.2d 114; Goolsby v. State, 166 Tex.Cr.R. 180, 312 S.W.2d 654; Tennison v. State, 168 Tex.Cr.R. 354, 327 S.W.2d 575; Gregg v. State, 170 Tex.Cr.R. 202, 339 S.W.2d 539.

We have carefully considered appellant’s remaining assignments of error. They relate in large measure to complaints herein-above discussed, and are overruled.

Under Rule 435, T.R.C.P., this Court is authorized to render such judgment against the appellant as should have been rendered by the court below. Accordingly, the judgment of the trial court is modified by changing the suspension period of appellant from twelve months to six months. Since Article 6687b, Sec. 31, provides that the filing of appellant’s petition abates the suspension until final judgment, the suspension which is extended for six months from February 27, 1964 will continue from date of final judgment herein, after crediting time elapsed from February 27, 1964 to March 3, 1964, when appellant’s petition was filed.

Judgment of the trial court, as modified, is affirmed.


author: FRASER, Chief Justice.

text:
    N. O. LIVEZEY, Appellant, v. RANGER INSURANCE COMPANY, Appellee.
    No. 5702.
    Court of Civil Appeals of Texas. El Paso.
    April 14, 1965.

      L. A. Cullison, Ft. Stockton, for appellant.
    Bullock, Kerr & Scott, Ft. Stockton, for appellee.
   FRASER, Chief Justice.

This is an appeal from a judgment rendered by the 112th District Court of Pecos County, Fort Stockton, Texas. The appellant brought suit against the appellee insurance company for recovery of hail damage to cotton crops owned by said appellant and insured by said appellee. After the plaintiff had rested the trial court, after hearing oral arguments granted defendant’s motion to withdraw the case from the jury and render judgment in favor of defendant.

The insurance policies here involved provided, among other things, that the insured must send to the insuring company a Proof of Loss within ninety-one days after the loss that might be the cause of any liability on the part of the insurer. Such proof of loss as provided for in the policy must be sworn to and, among other things, contain the location and description of the damaged crop and the amount of the loss, and also a statement in detail showing how and in what manner the amount of loss claimed was determined by the insured. It is conceded that this proof of loss was not supplied to the company by the insured, and this controversy is concerned with whether or not appellant is correct in his assertion and position that proof of loss as required by the policies was waived by the insuring company.

Appellant presents two points of error claiming that the question of the waiver was a matter of fact to be determined by a jury; and, secondly, that the court erred in granting judgment for the insurer and against the appellant.

We must agree that the finding of the trial court is correct. It appears from the record that after the hail in question, the company and its local representative were notified; that on two different occasions adjusters from the company inspected the crop in company with appellant and/or his son; that on these occasions the adjusters stated to Mr. Livezey and/or his son that the loss was either 18 per cent or 19 per cent. The policy provides that the insurer is not liable for the first 20 per cent of loss or damage. It further appears that Mr. Livezey was asked by one of the adjusters to execute a “waiver” or withdrawal of claim, but that Mr. Livezey testified that he was demanding a settlement on the basis of a SO per cent or 60 per cent loss. The withdrawal of claim form was placed in evidence, or rather a copy of same which Mr. Livezey had executed with reference to hail damage on other property. So, in summing up, it seems that the only contact between the insured and the insurer came about as a result of the two trips of inspection and the request by the insurer of appellant to sign a withdrawal of claim.

We recognize that in a case such as this, where the court has instructed a verdict in favor of the defendant, the court will assume that the facts shown by the plaintiff’s evidence are the true facts in the case. However, we are dealing here with a written contract that expressly requires the submission of proof of loss, and we do not believe the evidence presented by the plaintiff, even though taken as true and viewed in its most favorable aspect, is sufficient to establish that this essential provision of the insurance contract was waived by the insurance company. It would serve no purpose to review the entire Statement of Facts, as we find only that the adjusters made two trips and estimated the loss at either 18 or 19 per cent. We find no evidence that either by word or action did they give the insured the impression that he did not have to file proof of loss, or that such filing would be waived by the company. The withdrawal of claim seems to be a document in use and executed where the loss is under the 20 per cent minimum. The proof of loss, as stated above, must show the location, time and extent of damage. Further, it is evident that the inspection trips and conversations which took place at that time all occurred shortly after the hail, but the appellant never did send in any proof of loss. It is established law that a written contract is enforced according to its terms unless a party thereto can prove a definite waiver or cancellation of a provision of the contract by evidence, either direct or of such nature that a reasonable person would assume that the provision in question had been waived or canceled. We do not believe the facts here justify any such presumption and feel that the trial court was correct in so holding.

In summation, the entire case of the appellant consisted of conversations between adjusters and the appellant and his son, and nowhere do we find the appellee or its agents doing or saying that which would be sufficient to act or serve as a waiver of the submission of proof of loss, as expressly provided for in the policy. Round Rock Independent Sch. Dist. v. First National Ins. Co., 324 F.2d 280.

We have considered the cases presented by appellant and do not find them in point; as, for example, the case of Hanover Fire Ins. Co. v. Slaughter, 111 S.W.2d 362 (Tex.Civ.App.). It appears that the agent of the company had made a statement that the company was liable and ought to go ahead and pay the loss, and that during the period in which proof of loss could have been made, the insured was led to believe, by conversations, acts and conduct of two agents of the company, that no further proof of loss would be required, and that the only difference between the insurer and the insured was the value of the grain lost, there being no dispute as to the amount, as it involved a total loss. The situation before us is different because, here, the entire controversy revolves around the amount or extent of loss, and the insurer had made two inspections of the crop. It will be noted that in the Proof of Loss provision of the policies, the insured must detail how and in what manner the amount claimed was determined and whether the crop in question had suffered any prior damage. In St. Paul Fire & Marine Ins. Co. v. Pipkin, Tex.Civ.App., 207 S.W. 360, cited by the appellant, the insurer received an unsworn claim for damages, the adjuster admitted liability and the insured presented a form of proof, but filled in only the percentage of loss. The court held that the filing of a proof of loss had been waived by the actions of the company. These cases and others illustrate that to entitle the insured to claim the waiver of some important or vital part of the policy in question, there must be more evidence presented than we have before us. Here, there was no offer of settlement because the company was not liable for any loss under 20 per cent, and the only document submitted by the insurer was a withdrawal of claim, which the insured declined to sign or execute.

Nor is the situation here controlled by the line of cases dealing with situations where the denial of liability has nothing to do with the proof of loss. These cases appear to have been decided on the theory that the submission of a proof of loss would have been a useless act because, in the cases cited to us, the various companies involved denied liability because of misrepresentations in the application, the lapsing of the policy, and/or that the loss claimed was not covered. Here, the proof of loss was required, apparently to supply the company with desired and necessary information to be submitted by the insured under oath. The following example may illustrate the need for such requirement. The policies in question here provided for payment for loss of yield only, and although Mr. Livezey had testified that he had 50 to 60 per cent damage, he also testified that his crop had a potential of three and a half bales per acre immediately prior to the hail. However, Mr. Livezey later stated that he estimated his loss at 90 or 100 bales. The field involved consisted of 106 acres of cotton, and as Mr. Livezey estimated his loss at 90 to 100 bales, his loss would be only in the neighborhood of 27 per cent, as contrasted to 50 to 60 per cent. A properly executed proof of loss, sworn to by the insured, would have included the manner and means by which the insured estimated and determined the extent and amount of his loss.

Although we have carefully examined the record, including the Statement of Facts and the exhibits, we do not find any conduct or statements on the part of appellee that would amount to a’waiver of that portion of the pplicy requiring a submission of a proof of loss within 91 days of the damage. The Statement of Facts fully sets forth the actions and conduct of all parties, and we think the trial judge was correct in holding that, assuming everything alleged by the plaintiff to be true, there still did not exist grounds for a waiver of the submission of Proof of Loss. As we have stated above, it is conceded that such proof of loss was never submitted.

Appellant’s two points are therefore overruled, and the judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    Charles McDONALD, Administrator of the Estate of Johnny E. Stell, Deceased, Appellant, v. Carl WILLIAMSON, Individually and as next friend of Stewart Williamson, a Minor, Appellees.
    No. 4379.
    Court of Civil Appeals of Texas. Waco.
    July 29, 1965.

      Oster & Kaufman, Dallas, for appellant.
    Dunnam & Dunnam, Waco, for appellee.
   WILSON, Justice.

Defendant appeals from judgment against him based on a jury verdict in a personal injury action arising out of an intersec-tional automobile collision. We affirm.

Complaints are made of jury argument of plaintiffs' counsel. There is no properly preserved record of the argument, and the points may not be considered. See Smith v. United Gas Pipe Line Co., 149 Tex. 69, 228 S.W.2d 139, 143.

It is urged the trial court erred in omitting “unbroken by any new and independent cause” from the definition of “proximate cause” in the charge. Defendant’s pleading contains no reference to new and independent cause. He objected to the definition because of the omission, but made no request for submission. The omission may not be reached by objection rather than by a request, under Rule 279, Texas Rules of Civil Procedure. Querner v. DeSpain, Tex.Civ.App., 339 S.W.2d 723, 725, writ ref. n. r. e.; Western Union Telegraph Co. v. Hinson, Tex.Civ.App., 222 S.W.2d 636, 641, writ ref. n. r. e.

Appellants’ points, including those to the effect the verdict is excessive, are overruled. Affirmed.


author: COLEMAN, Justice.

text:
    Jesse J. HOLT, Appellant, v. EMPLOYERS REINSURANCE CORPORATION, Appellee.
    No. 14596.
    Court of Civil Appeals of Texas. Houston.
    June 17, 1965.
    Rehearing Denied July 8, 1965.

      Dixie & Schulman, Houston, and Robert E. Hall, Houston, of counsel, for appellant.
    R. H. Whilden and C. E. Nadeau, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from a summary judgment rendered in a workman’s compensation case. The question to be determined is whether an appeal to the courts can be taken from an order of the Industrial Accident Board refusing to set a hearing because more than 401 weeks elapsed between the date of injury and the date on which the request for a hearing was received.

In Hart v. Texas Employers Insurance Association, Amarillo Civ.App., 387 S.W.2d 706, ref., n. r. e., this question was considered and it was held that no appeal could be taken. That court held:

“When the Board herein refused to do anything because of lack of jurisdiction it refused to hold a hearing and make a final determination or decision either granting or refusing the plaintiff’s claim for compensation. The plaintiff was without any other remedy than to bring mandamus proceedings to have determined the jurisdictional question and to compel the Board to set a date for hearing his claim and to hear and make a final determination thereof if the Board had jurisdiction. Kelly v. Industrial Accident Board, Tex.Civ.App., 358 S.W.2d 874 (writ refused).”

The opinion of the Court of Civil Appeals was not expressly approved by the action of the Supreme Court in refusing the application for writ of error with the notation “No Reversible Error”. While the Court based its decision squarely on the point that the order of the Industrial Accident Board was not a final order on the merits of the claim and, therefore, was not sufficient to authorize an appeal to the district court, other points were presented by the appellee as a basis for the summary judgment, i. e., that the Board was without jurisdiction to entertain the claim, and, therefore, the district court acquired no jurisdiction by the attempted appeal; and that the complete failure of the appellant to pursue his claim for eight years before requesting a hearing constituted an abandonment of the claim.

While appellee has raised the question of abandonment in its brief in this case, we consider it an affirmative defense which must be pled affirmatively. Appellee, as it frankly stated to the court, did not plead abandonment for the reason that it might present a question of fact and thus complicate its motion for summary judgment. The action of the Supreme Court in refusing the application for writ of error in the Hart case may have been based on this point. The Hart case was an appeal from a summary judgment. It cannot be determined from the opinion whether the Insurance Company presented evidence in connection with its motion for summary judgment negativing the existence of good cause. In the absence of such a showing, it would appear that an issue of fact existed precluding a summary judgment on the ground of abandonment of the claim. Denton County v. Brammer, Tex.Sup., 361 S.W.2d 198; Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85; Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489. In this case, in addition to the failure to plead that the delay in seeking a hearing on the claim constituted an abandonment, appellee did not allege or attempt to show that there was not good cause for the failure.

Appellant received an injury to his finger on March 8, 1955. He was given prompt medical treatment and payment of compensation was begun on March 18, 1955. On April 21, 1955, appellant filed notice with the Board that compensation payments had been stopped because appellant had returned to work at his regular job. On April 29, 1955, appellant filed his notice of injury and claim for compensation for an injury to his right hand with the Board, together with a letter requesting that no action be taken on the claim until appellant requested a hearing. On May 2, 1955, the Board wrote appellant’s attorneys acknowledging receipt of the notice, claim, and letter and advising them that the amount of compensation shown to have been paid was the correct payment for the lost time and stating: “If you are claiming any further benefits it will be necessary for you to furnish us an up-to-date medical report in support of your claim. * * * We will await further advice from you.” Some eight years later, November 6, 1963, appellant requested that the claim be set down for a hearing.

On November 26, 1963, the Board replied as follows:

“This will acknowledge your letter dated November 6, 1963 in which you requested this case along with another case for the claimant to be scheduled for a hearing.
“Since the courts have held that this Board is without jurisdiction to act on a claim after a period of 401 weeks following the date of injury, this Board has no jurisdiction over Mr. Holt’s claim for an accident occuring to him March 8, 1955. You may consider this the final action of this Board.”

This letter was treated as a final ruling by appellant and his appeal was filed in the district court in proper time.

Appellee contends that the letter of May 2, 1955 constituted an award of compensation in the amount of $139.29. The Board found that such sum was the correct amount due him for lost time and that it had been paid. Appellee construes that part of the letter pointing out the necessity for medical reports, in the event further benefits were claimed, and the statement that the Board would await further advice from the claimant as a reference to the provisions of Section 12d, Article 8306, V.A.T.S., in view of the duty of the Board to hear a claim within a reasonable time (Article 8309a, V.A.T.S.) and the Board’s Rule 5.14 to the effect that: “Hearings may be postponed in the discretion of the Board only during a period in which claimant is receiving both medical care and compensation.”

Section 12d, supra, authorizes the Board to review any award or order ending, diminishing or increasing compensation previously awarded within the compensation period, and to review an order denying compensation within twelve months after its entry. Appellee says that the letter of May 2 not only awarded compensation, but also constituted a final award denying further compensation from which an appeal to the district court would have been proper. Welch v. United States Fidelity and Guaranty Co., Tex.Civ.App., 54 S.W.2d 1041, writ dism. The further argument is made that thereafter the only hearing the Board had authority to order would be one contemplated by Section 12d, which must be held within the compensation period. Under no circumstances can the “compensation period” exceed 401 weeks. Texas Employers Ins. Ass’n v. Guidry, 128 Tex. 433, 99 S.W.2d 900.

However, we are of the opinion that the “hearing” contemplated by Art. 8309a, V.A.T.S., was not held prior to the letter or award, if it was such, of May 2, 1955. The complete proceedings of the Board are before us. There was no formal hearing of which the claimant was given notice. Such a hearing is contemplated by the Workmen’s Compensation Act. Article 8307, Sec. 4, provides that the procedure before the Board shall be as summary “as may be under this law,” and also- provides that the Board may subpoena witnesses, punish for contempt and bar people from practicing before the Board under certain conditions. While a formal hearing may not be essential to due process, since the Act provides for trial de novo on appeal, it also contemplates notice of a hearing and an opportunity to be heard.

A claimant may require the Board “to set a date for the hearing of his claim and to hear, and make a final determination thereof” where the Board refused to hear a claim in the absence of a medical report. Kelly v. Industrial Accident Board, Tex.Civ.App., 358 S.W.2d 874. We will not construe the action of the Board as determining the merits of a claim, where no prior hearing was afforded the claimant, if their action can be reasonably construed otherwise. Together with his notice of injury and formal claim for compensation claimant filed with the Board a letter requesting that no further action be taken by the Board until advised by him that a date for hearing be set. The Board rules authorized such requests. The letter of May 2 need not be construed as an award in view of this request.

The Board letter of November 6, 1963 presents a more difficult question. In the leading case of Oilmen’s Reciprocal Ass’n v. Harris, 116 Tex. 247, 288 S.W. 809, opinion adopted, the Board held the following letter to be a final award from which an appeal could be taken:

“ ‘J — 15632. In re D. C. Harris v. Texas Sugar Refining Company. Thos. C. Turnley, Esq., Attorney at Law, Galveston, Tex. — Dear Sir: I am directed by the board to advise that your request for a hearing on lump sum settlement is denied, for the reason that this claim does not come within the classification of the lump sum settlement, as provided for in section 15, part 1, of the act. If you will bring your petition under the proper provisions of the act —section 15-A, part 1 — and show cause for reduction of the period and corresponding increase of the amount of weekly payments, the board will likely give the application such consideration as it merits. Yours very truly, Industrial Accident Board, by _, Secretary.’ ”

The court held:

“The facts stated in the certificate, more specifically the letter from the Industrial Accident Board by its secretary, would indicate that the board had considered the appellee’s application for a lump sum settlement and had denied the same upon the merits, that is, holding ‘that this claim does not come within the classification of the lump sum settlement as provided for in section 15, part 1, of the act.’ This interpretation is strengthened by the fact recited in the certificate that ‘the board received, filed, and considered this application.’ So that, if this interpretation of the certificate be accepted, and we think it should be, there can be no doubt that the action of the board was final in every respect. The holding of the board is not tantamount merely to the sustaining of a demurrer to the petition, but rather it denies the applicant’s request for a lump sum settlement, which, of course, being all the relief sought by him, effectually puts him out of court, with no recourse but to appeal.”

This decision was considered by the Court of Civil Appeals at Eastland in Jones v. Texas Indemnity Ins. Co., 15 S.W.2d 1077, writ ref. There an appeal was attempted from an order of the Board reading as follows:

“N — 6157
“In re R. C. Jones v. Magnolia Pipe Line Co.
“Mr. John T. Spann, Atty., 232 Allen Building, Dallas, Texas — Dear Sir: Because of the fact that our records indicate that the Insurance Company is paying compensation, the Board does not consider that the time has yet arrived to set the case for hearing.
“Should the company suspend payment altogether or a dispute arise over the method of handling the claim, if the attorneys can get together and advise the Board as to what firm represents the claimant, the Board would then be in position to grant a hearing.
“Yours very truly,
“Industrial Accident Board,
“EBB-CJ By-, Secretary.
“C. C. White & Yarborough, 409-11 North Texas Bldg., Dallas, Texas.”

The court held that the letter amounted to nothing more than a declination to set the case for an immediate hearing and was not a final order disposing of the claim. The court said:

“The principal case relied upon by appellant is a decision by the Commission of Appeals in Oilmen’s Reciprocal Ass’n v. Harris, 116 Tex. 247, 288 S.W. 809. That opinion was written upon a certificate from the Court of Civil Appeals showing that the board received, filed, and considered the application. The letter in that case advised the claimant that his request for a hearing was denied for the reason that his claim did not come within the classification of a lump sum settlement, as provided in a certain article of the statutes. In the instant case the board has never considered appellant’s claim on its merits. That opinion defines a final judgment from which an appeal will lie in the following language: ‘A judgment, order, or decree is final when it terminates the then pending suit or proceeding in such manner as to put it out of the power of the court making the same, after the expiration of the term, to place the parties in their original condition; one that disposes of all the issues so that there remains nothing more for the court to do to ascertain the rights of the parties; one that leaves nothing to be judicially determined, but which settles the rights of the parties under the issues made by the pleadings or disposes of the cause and places the parties out of court.’
“We agree with the following language taken from appellee’s brief: ‘The sum and substance of the letter, treated in the sense of an order of the board, is that it is preliminary, temporary and conditional in character, inconsistent with none of the rights or relief prayed for by claimants, made in the progress of the case for the purpose of managing the action and to ascertain the facts to the end that the rights of the parties could be considered and finally determined. Whatever there may be in the letter in the nature of a ruling or decision, it is purely interlocutory, relating only to a question of procedure, essentially a matter within the legal discretion of the board, and therefore not final in the sense that it is appealable.’ ”

The Dallas Court of Civil Appeals was presented with a case having the same factual situation as the Jones case in Todd v. Southern Casualty Co., 18 S.W.2d 695. This court held the letter to amount to a final award authorizing appeal, stating:

“This order was a denial of appellant’s right to be heard on his petition until such time as it should be shown that appellee was not complying with the law according to the records of said board; the order in part being, ‘It therefore declines to set the case for a hearing at this time.’ ‘At this time’ can only mean that, so long as appellee continues to comply with the law according to the records of the board, it would not grant the prayer of appellant’s petition; the effect being that, during the period of time that ap-pellee continued to comply with the law according to the records of said board, the relief sought was denied. Therefore it must be apparent the effect of said order was that, so long as appellee should continue to comply with the law, according to the records of said board, the compliance therewith being the very matter that appellant sought by his petition to obtain an order changing, namely, the payment of his compensation in weekly installments to a payment in a lump sum settlement, it was the judgment of the board that appellant was not entitled to the relief sought by him. This right could be just as well denied him through the refusal of the board to hear and determine his petition indefinitely as by an order entered specifically denying him the right to a lump sum settlement. It is undoubtedly the policy of the Workmen’s Compensation Act that all matters presented to the board should be speedily determined, as may be, and further no power is vested by said act in said board to arbitrarily postpone the hearing upon any petition properly before it. It was clearly within the rights of appellant to file his petition for the vacation of the order theretofore entered by the board, allowing weekly compensation to.be paid, and ask for an order awarding a lump sum settlement, in lieu of such weekly payments, and to have same determined without unreasonable delay.”

An application for writ of error was granted in this case and the Commission of Appeals, in Southern Casualty Co. v. Todd, 29 S.W.2d 973, finding it in direct conflict with the Jones case, said:

“If the opinion in the Jones Case is correct, then the Industrial Accident Board could defer, from time to time, taking any final action on the application, such as was made in this ease, and, as there could he no appeal from this procedure, the result would be a denial to the applicant of any means of securing an award from the courts, however clear he might be entitled thereto, under the law and the facts of his case. We think the phrase ‘The Insurance Company is complying with the law, according to its records,’ followed by the phrase ‘Therefore declines to set the case for hearing,’ conclusively shows that the reason why the Industrial Accident Board declined to set the case for hearing at that time was because it had considered the application made by the applicant, together with the facts presented in support thereof, and had concluded that, because the insurance company was complying with the law, according to the records of the Industrial Accident Board, the applicant had not right to a hearing on his application, so long as this condition of affairs continued. This action operated a final adjudication of the matter in controversy. The opinion of the Court of Civil Appeals is in all things correct, and the authorities cited in support thereof are sufficient without the citation of additional ones.”

The rationale of this case is discredited somewhat by the reasoning of the Court in Kelly v. Industrial Accident Board, Tex.Civ.App., 358 S.W.2d 874, and by that of the Court of Civil Appeals in Industrial Accident Board of Texas v. Hudson, 246 S.W.2d 715, and Industrial Accident Board v. Glenn, 184 S.W.2d 302, reversed on other grounds, 144 Tex. 378, 190 S.W.2d 805, cited as authoritative in the Kelly case.

In the Kelly case the court held that mandamus would lie to compel the Board to set a date for the hearing of his claim and to hear and make a final determination thereof. There the Board advised the claimant that the “Board rules require medical evidence to be filed in each case before an award will be made. For this reason, no further action will be taken in this matter and you may consider this a final ruling of the Board.” The court further held that the Board exceeded its authority in requiring medical reports to be filed and that its refusal to hear the claim in the absence of such a report violated the mandatory provisions of Art. 8309a, V.A.T.S., requiring claims to be heard within a reasonable time. The court then held: “Since claimant was without any other remedy, either at law or in equity, to compel the Board to set a date for the hearing of his claim and to hear and make a final determination thereof, the writ of mandamus is a proper remedy to require the performance of such ministerial duty.”

The Hudson case concerned an order of the Board requiring claimant to submit to a surgical operation. When claimant refused to submit to the operation, the Board advised that it refused to take any further action until its order was complied with. The court held that the order requiring an operation was interlocutory and not appealaable. It further held that since the Compensation Act recognized the right of a claimant to refuse an operation and specifies the procedure to be followed by the Board thereafter in determining the compensation to which the claimant is entitled, and that since these procedures had not been followed, there was no final award fixing the compensation due the claimant, nor denying him compensation. The court concluded that a writ of mandamus should issue requiring the Board to proceed to a hearing and final disposition of the case.

In the Glenn case the Board refused to approve a compromise settlement agreement because the amount of compensation due was not “figured * * * in accordance with the Board’s rule.” The parties sought mandamus to compel approval, and this relief was refused by the trial court. The Court of Civil Appeals held that the approval or refusal to approve a settlement agreement is not an award from which an appeal will lie to the courts, and that since the Board refused to approve the agreement solely because of the Board’s mistaken construction of the law, no matter of discretion or fact finding being involved, mandamus was authorized and remanded the cause to the trial court with instructions to issue the writ. Thereafter the Supreme Court reversed the judgment of the Court of Civil Appeals (Industrial Accident Board v. Glenn, 144 Tex. 378, 190 S.W.2d 805) holding that the refusal of the Board to approve the settlement agreement was neither an award of compensation nor a denial of an award, and necessarily left the claim pending; that either the claimant or the insurance carrier had a right to seek a final award from which it could appeal to the courts; that conceding, without deciding, that the writ of mandamus is available to compel the Board to hear and determine a claim on its refusal to act, nevertheless the Board cannot he compelled to act in a specific manner; and here the parties seek to control the discretion or judgment of the Board and thereby avoid the necessity of procuring from the Board a final award and an appeal therefrom. The Supreme Court then concluded that the equitable remedy of a writ of mandamus is not available as a substitute for a legal remedy provided by law, and, the parties not having exhausted the remedy provided by the Compensation Act, the writ of mandamus was not available.

Another recent case considering the question of the finality of an order of the Industrial Accident Board is Indemnity Insurance Company of North America v. Marshall, Tex.Civ.App., 308 S.W.2d 174, ref., n.r.e. In the Marshall case there was doubt as to whether jurisdiction lay with the Industrial Accident Board or the Federal Bureau of Employees’ Compensation. A claim was filed with the Board, but before the date for hearing, the claimant filed a request with the Bureau that it take jurisdiction of the claim and notified the Board of this action. Within a few weeks the Board wrote the claimant that the hearing on the claim was cancelled because it is within the jurisdiction of the U. S. Department of Labor, Bureau of Workmen’s Compensation. The letter concluded: “This is a final award of the Board. If you are dissatisfied with the award of the Board and desire to appeal it, you must give notice * * * and thereafter file suit. * * * ” The Court of Civil Appeals of Beaumont held that the action of the Board constituted a final award, saying:

“We note that, as evidenced by the notice that was sent to appellee, the Industrial Accident Board’s ruling or order was one cancelling a ‘hearing’ of or for appellee’s claim. However, when the reason assigned by the Board for its action is considered, and when we consider that the Board itself represented its ruling or order as being ‘a final award,’ we think there can be no doubt that the ruling or order was intended as a cancellation of appellee’s claim from the Board’s docket of pending claims, and not as merely a cancellation of the particular hearing that had been previously scheduled to take place on a given date. * * * Without actually saying no, the order was, in reality, a denial of appellee’s claim for compensation under the state law. This is inherent in the Board’s expressed conclusion that the claim fell within the jurisdiction of the Bureau of Workmen’s Compensation, U. S. Department of Labor, for, assuming, as we think we must in the circumstances, that it was meant that the Bureau of Workmen’s Compensation had exclusive jurisdiction of the claim, the Industrial Accident Board was but saying that ap-pellee was entitled to recover, if at all, only under the Longshoremen’s and Harbor Workers’ Compensation Act and not under the state law. We have concluded, therefore, that, being tantamount to a denial of appellee’s claim the Industrial Accident Board’s ruling or order was a final and appealable ruling or decision and that the trial court had jurisdiction to hear and determine the cause on its merits. See Verrett v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 223 S.W.2d 33; Brown v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 276 S.W.2d 314. Point two is overruled.”

In this case it is clear that the action of the Board denied appellant’s claim because the Board had determined that more than 401 weeks had elapsed from the date of injury to the date the hearing was requested and that in such a case appellant was not entitled to recover under the Workmen’s Compensation Act as construed by the courts. This action should not be considered as merely postponing the hearing indefinitely or as a refusal to grant a hearing. It was a denial of the claim on the merits as a matter of law, and not merely on a question of Board procedure. It involved ascertaining facts, undisputed, it is true, and the application of the law to those facts. Mandamus would not lie. Industrial Accident Board v. Glenn, supra. The Kelly case is not controlling because there the Board rendered no award on the merits. Its action in that case can be reasonably construed only as a refusal to act on the claim. In this case if the Board were required to hold a formal hearing, in the absence of a final judgment that it has jurisdiction of a claim set for hearing more than 401 weeks after the date of injury, no doubt their award would be the same. The letter under consideration in this case was a final award authorizing an appeal to the courts.

The Board, however, cannot be considered to have denied the claim for compensation if it, in fact, had no jurisdiction. If the Board lacked jurisdiction to pass on the claim, a fortiori the Court to which the appeal was taken was without jurisdiction. Commercial Casualty Ins. Co. v. Hilton, 126 Tex. 497, 87 S.W.2d 1081, opinion adopted.

If, therefore, by the terms of the Act jurisdiction over a claim for benefits, otherwise compensable under the Act, is withdrawn from the Board by reason of the fact that it remains dormant in files of the Board until a period of 401 weeks from the date of injury had passed, then the district court acquired no jurisdiction of the attempted appeal and the action should have been dismissed. We find no specific provision to this effect in the Act. In every case in which an award is made by the Board the compensation necessarily includes that period of disability suffered prior to the hearing before the Board. We think it likely that in the case of a specific injury for which benefits are confined to a few weeks, as may be the case here, many claims are heard by the Board after the period has elapsed. Certainly it must be true that where a general injury is claimed, but only a specific injury is proven, claims are heard by the Board after the period for which compensation is recovered. In all cases where the claimant has complied with the Act in filing his claim with the Board, he has properly preserved his cause of action. The case of Gulf Casualty Company v. Hart, S.Ct., 141 Tex. 642, 175 S.W.2d 73, is not controlling because in that case the death for which benefits were claimed did not occur during the compensation period. The Supreme Court held that a cause of action never came into existence. Here the cause of action did come into existence. While it may have been barred by undue and unexcused delay on the part of the claimant in seeking a final determination, a point which we have determined is not before us, this would be a matter requiring the exercise of jurisdiction rather than negating its existence.

After an appeal is taken from a final award of the Board, the trial court is not limited to the issues ruled on by the Board, but may determine all issues necessary to a proper determination of the claim for compensation. Texas State Highway Department v. Fillmon, 150 Tex. 460, 242 S.W.2d 172.

Appellee’s contention that the general statutes of limitation are applicable to this action cannot be sustained. Holloway et al v. Texas Indemnity Insurance Company, Tex.Com.App., 40 S.W.2d 75; Texas Employers’ Insurance Association v. Guidry, 128 Tex. 433, 99 S.W.2d 900.

The trial court erred in granting a summary judgment in this case. The judgment is reversed and the cause is remanded for trial on the merits.

On Motion for Rehearing

In its motion for rehearing appellee has pointed out that this Court was mistaken in stating that appellant filed notice with the Board that compensation payments had been stopped, and that in fact appellee filed this notice. Appellee is correct, but the error does not affect the conclusions reached.

The motion for rehearing is overruled.


author: NYE, Justice.

text:
    Guanadine Bates HUTCHINGS, Individually and as Independent Executrix of the Estate of Warren David Bates, et vir, Appellants, v. Geraldine BATES, Individually and as next friend of Sharon Anne Bates and Linda Lou Bates, Minors, Appellees.
    No. 64.
    Court of Civil Appeals of Texas. Corpus Christi.
    July 29, 1965.
    Rehearing Denied Aug. 26, 1965.

      Ben H. Schleider, Jr., Herbert W. Boerstler, W. Harold Sellers, and Dilling-ham & Schleider, Houston, for appellants.
    Barrow, Bland, Rehmet & Singleton, R. F. Wheless, Jr., Houston, for appellees.
   NYE, Justice.

This is a suit to recover child support payments allegedly due by and under a contract, brought by the divorced former wife of Warren David Bates, deceased, against his independent executrix, individually and in her representative capacity. The suit was brought by the appellee, individually, and as next friend of her two minor daughters, Sharon Anne Bates, born June 21, 1945, and Linda Lou Bates, born June 28, 1947. Sometime after a divorce between appellee and said decedent, the decedent married the appellant herein and on October 4, 1957, made his will in favor of appellant as sole beneficiary, there being no children of decedent’s second marriage. Such will was duly probated in Harris County, Texas, where appellant was appointed independent executrix and was still acting in such capacity at the time this suit was brought.

This suit was brought in the district court of Harris County, Texas, which was not the same court that heard the divorce action between Geraldine Bates and Warren David Bates in 1949.

A property settlement agreement, quite lengthy in its terms, was entered into by and between Warren David Bates and his wife, the appellee, on October 10, 1949, providing for child support payments of $150.00 per month until the elder of the two daughters should attain the age of eighteen years, and then to be reduced to $100.00 monthly until the younger daughter attained such age. These parents were divorced on September 19, 1949, and by reference, and in certain specific portions the decree thereafter entered confirmed and adopted the settlement agreement. The decedent father faithfully kept the payments for his daughters’ support paid until his death on July 2, 1960, after which time no further payments were made by appellant as executrix of his estate, or otherwise.

The settlement agreement provided further, that payments of $50.00 per month be paid by Bates to appellee until his younger child attained the age of eighteen years, which payments were in relinquishment of appellee’s homestead rights and in further settlement of her property rights. These payments were likewise paid by such decedent until his death, but none were thereafter paid from decedent’s estate.

The settlement agreement also made certain provisions for payment of medical or dental expenses and decedent paid premiums during his lifetime on two small life insurance policies in favor of his two minor daughters.

The appellee brought suit to recover under the property settlement agreement and subsequently filed a motion for summary judgment. The suit and motion were answered by appellants. The trial court entered summary judgment in favor of the appellee for support payments then due, and also for anticipatory sums to equal the payments provided in the agreement, all in the sum of $7437.81. Upon agreement of the parties, further hearing held March 4, 1963, on a claim for dental expenses, further judgment was entered in the sum of $1210.00. All sums including the separate recovery of appellee individually were included in one final decree.

Appellant and appellee, upon permission granted, filed post submission briefs and certain reply briefs. It is the decision of this Court that such briefs and counter briefs have not changed or enlarged the issues as presented by the record, although diligence of counsel in preparing and filing them is commendatory.

The issue in this case revolved itself around a single question of law presented by the pleadings and motion for summary judgment filed by the appellee and sustained by the trial court. This question is: whether or not a decedent’s estate can be held liable for amounts accruing after his death by virtue of a written agreement for child support payments, medical expense and specific and limited installment payments for renunciation and homestead rights.

Both of the parties litigant admit that at common law, the estate of the deceased father is not liable for support payments to his children in the absence of an agreement. “In the absence of an agreement, the father’s duty to furnish support of his children ordinarily ceases on his death.” 67 C.J.S. Parent and Child § 15, p. 691. This rule is similarly recognized in other texts. See 39 Am.Jur. 648, § 40, Parent and Child. There is no disagreement between the parties concerning the common law rule. (Article 1, Vernon’s Ann.Tex.Civ.St., provides that “The common law of England, so far as it is not inconsistent with the Constitution and laws of this State, shall together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the Legislature.”) The Legislature has seen fit to change this rule only to the extent of obligating the father’s estate for support of his children by providing for a family allowance. See Texas Probate Code, §§ 286-293, V.A.T.S. This code however is not involved here.

The issues, therefore, frame themselves around the common-law rule as the same may have relation in view of the written settlement agreement.

It seems to us that when a husband and wife who are faced with divorce in a pending action, undertake their solemn written agreement to stipulate and set forth the terms of their property settlement, and the obligation of the husband and father as to support payments for the little children, issues of such marriage, they do so impressed with the most poignant emotions and directed by the most solicitous of responsibilities. Agreements in writing, made under these circumstances, therefore, appear to import a quality of good faith and sincerity not always present in agreements, generally. The true interests of the parties speak persuasively from the four corners of such agreements.

Warren David Bates and his wife Geraldine Bates unfortunately had reached the end of their domestic partnership. They found themselves in a divorce action; they knew some provisions ought to be made for the future welfare of their two small daughters, Sharon Anne, then age four years, and Linda Lou, age two years. Wisely, they considered that a settlement should be made to divide up the property and the homestead rights accumulated during the marriage. The agreement was signed, approved by the trial court, and made a part of the divorce decree.

Warren David Bates later on married the appellant Guanadine Bates. Some three years before his death, he wrote his will, making the appellant his sole beneficiary. For approximately eleven years, and until his death in 1960, Warren David Bates made faithful payments of his agreed obligations. When Guanadine Bates, his second wife, and appellant herein, declined to continue such payments from the estate of Warren David Bates, as independent executrix thereof, this suit followed. Ap-pellee’s motion for summary judgment was rendered against the appellant, who perfected proper appeal to this Court.

Appellant contends that as a matter of, law the estate of a deceased parent is not liable for support of the minor children after the death of the parent, and the only-possible way of holding the estate liable would be a provision in the property settlement agreement and decree providing for such binding effect. Appellant points out that such provisions are clearly absent from the settlement agreement and divorce decree here, because they do not state that such contract and decree are “binding on the heirs, personal representatives, executors and administrators.” Appellant argues that the absence of such quoted phrase clearly manifests the intention of the decedent that he considered the agreement to be a personal one, that ceased at the time of his death.

Both parties concede, and our search confirms, that this question has not been passed on in Texas. Schultze v. Schultze, Civ., 66 S.W. 56, affirmed 95 Tex. 352, 67 S.W. 401, was decided on materially different factual circumstances from this case, but that court expressly left open the question involved in this litigation.

It is axiomatic that a testamentary gift of decedent’s estate passes to the devisee, subject to all debts and obligations of the deceased. The type of contractual obligations involved herein is binding on the estate as can be seen by the authorities from other states.

In the case of In re Caldwell’s Estate, 129 Cal.App. 613, 19 P.2d 9, the husband and wife, in contemplation of a divorce, entered into an agreement whereby the husband agreed to pay the wife $100.00 per month for the support of their child during minority. The agreement was never approved by the divorce court or put in the decree. Later, the husband executed a will, leaving all of his property to a new wife. After the husband died, the first wife sued his estate for all payments which were accrued and unpaid and all payments which were to accrue under the agreement on theory of anticipatory breach. The defendant claimed that the agreement abated with the death of the father, but the court allowed the plaintiff to recover and held as follows:

“ * * * This agreement was a binding executed contract between the parties. They settled their property interest upon a basis agreeable to both. It was right and proper that their minor daughter should have their consideration, and it was determined that the mother should care for her and the father assume an obligation to furnish the mother $100 per month for the child’s maintenance and support until she married or became of age, not until he died. This bears no relation to alimony and is to be construed according to the ordinary rules of contracts. In our opinion it continued to be a legal charge against the estate the same as any other unfulfilled contractual obligation of decedent’s at the time of death.”

See also the following cases from other jurisdictions that give weight to our holding herein. Ramsey v. Sims, (1952), 209 Ga. 228, 71 S.E.2d 639; Stone v. Bayley, (1913), 75 Wash. 184, 134 P. 820, In re: Fessman’s Estate (citing Huffman v. Huffman and Stumpf’s Appeal), (1956), 386 Pa. 447, 126 A.2d 676. See 18 A.L.R. § 1126-1141 and later case service. See particularly Newman v. Burwell, (1932), 216 Cal. 608, 15 P.2d 511 opinion by Supreme Court of California which was relied on in the “In Re Caldwell’s Estate” case, supra; Silberman v. Brown (Ct. of Common Pleas, Ohio, 1946), 72 N.E.2d 267; Smith v. Funk, (1930), 141 Okl. 188, 284 P. 638; Minnehaha County, ex rel. Willadsen v. Willadsen, (1943), 69 S.D. 412, 11 N.W.2d 59; Simpson v. Simpson, (Fla.App., 1959), 108 So.2d 632. See also the opinion in Edelman v. Edelman, (1949), 65 Wyo. 271, 199 P.2d 840; 203 P.2d 952.

Some contention is made that should appellee’s position be upheld, it would operate to destroy the prerogative of Warren David Bates to bequeath and devise his estate by will to persons other than his children. Not so! No such testamentary power can ever be recognized to impair a contract made by a decedent that imposes an obligation that survives such decedent. A gift by will can never supervene to be preferred over a decedent’s debt. Citation does not appear necessary in support of this familiar premise.

Appellant contends that to allow this claim of his children against his estate would be to provide for a lien after the death of the decedent. We hold that the decedent’s children claiming under a valid contract, are no less creditors of their father’s estate than a creditor who is not a child of the decedent. Gessler v. Gessler, 273 F.2d 302, (5th Cir. 1959); Simpson v. Simpson, supra.

Argument is adduced that the agreement fails to affirmatively provide that its obligatory provisions should be binding on the promissor’s estate. We prefer to consider that the converse of this situation should attest the father’s intention. He did not have his agreement provide that his obligations should cease if his death should occur before such obligation became liquidated. He knew he was mortal and that his death could intervene before his small daughters should attain ages of eighteen years, but he did not qualify his agreement to terminate the payments should he not survive.

To hold that because this father (and husband) did not make his agreement binding upon his heirs, executors and administrators is fatal to the appellee’s position and that such omissions terminate the obligation upon death, although prior to the eighteenth birthday of his younger daughter, is in reality to change the agreement itself by judicial decree.

Appellant argues that the $50.00 payment provided for by the separation agreement which were to continue “until the younger of the said two minor children reached the age of 18 years, or until Geraldine shall remarry, whichever shall first occur” were alimony payments and therefore void under Texas law. In the separation agreement, Warren David Bates valued the homestead apartment rental value at $50.00 per month. This was his separate property. This payment, as stated in the agreement, was in - lieu of appellee’s homestead rights and in further settlement of the property rights between the parties to the agreement. The divorce court may well have set aside and awarded to appellee (absent the property settlement agreement) the use of the homestead for the balance of her life, or upon such other reasonable terms. 20 Tex.Jur.2d § 205. The subject contract terms were compatible with appel-lee’s rights in the property and she should be allowed to recover the amount agreed upon and approved by the original trial court.

Appellant, in point number one, complains that the trial court erroneously granted the summary judgment and judgment for dental expense. This point is overruled for the reason that such expense was contracted to be paid by the terms of the property settlement agreement. In our view, the promise to pay this expense was not a personal promise dependant upon the promissor’s continued life, but a straightforward agreement to pay a dental expense when it should occur on or before attainment of the age of eighteen years by the younger child. See 17 C.J.S. Contracts § 465. The mere promise to pay money is not considered impossible of performance by death of the debtor. If the contract does not require the personal performance of the decedent, the executrix is bound by the contract. Neyland v. Brammer, Tex.Civ.App., 73 S.W.2d 884, error dism. (1933); 12 Am.Jur. § 375, p. 950; 13 Tex.Jur.2d, Contracts, § 323; Corbin on Contracts, Vol. 6, § 1334, p. 377. At Common Law, the general rule is that a cause of action founded on a contract survives the death of either party. 1 C.J.S. Abatement and Revival, § 137, p. 184; State v. Stone, Tex.Civ.App., 271 S.W.2d 741 (1954). Appellant’s point one is overruled.

Appellant, in points of error two to five inclusive, complains of the granting of the summary judgment, and lays much stress upon the refusal’of the trial court to allow the appellant to introduce testimony as to statements made by the decedent, Warren David Bates, in the years following the execution of the agreement as to various things he intended to accomplish by such agreement.

Appellant’s affidavit, offered in opposition to the motion for summary judgment, stated, that many times she discussed with the deceased his obligations toward his minor children, the contents of his will, and other matters concerning the support of his minor children. Appellant contends that the written agreement is ambiguous and that such statements are explanatory and raise genuine fact issues that should be determined at a full trial on the merits.

The learned trial judge wisely declined to open the parol evidence rule to admit testimony to vary the written property settlement agreement. Other statements by appellant pertaining to payment of proceeds of insurance policies to the minors, was hearsay. We hold that the agreement was not ambiguous. The statements were not admissible and, therefore, insufficient to raise any fact issue. 4 McDonald on Civil Practice, 1390, § 17.26 and cases cited. Likewise, there was a commendable refusal to allow quotations from the lips of the decedent who could not be present to refute or submit to cross-examination. Art. 3716, V.A.T.S. The execution of the agreement is not denied, nor is it attacked by the appellant as having been obtained contrary to free will and in the capacity of being sui juris. Appellant’s points two to five are overruled.

The appellant complains that the trial court erred in attempting to modify and increase in effect the support obligation of decedent after his death, contending that only the court in which the original decree was entered, had jurisdiction. The judgment for the appellee was for the entire amount due and to become due under the provisions of the property settlement agreement. The suit was one for debt against the independent executrix and was based upon the written contract of the decedent. It is true as appellant contends that a property settlement agreement which disposes of the community estate when incorporated in a divorce decree merges into the final judgment therein. Adams v. Adams, Tex.Civ.App., 214 S.W.2d 856, wr. ref. n.r.e. To that extent the decree becomes a valid binding judgment on the parties thereto. The decree respecting child support payments, is not a personal or final judgment binding on the parties, because the court can change the decree as to such child support payments upon proper motion, notice and hearing. Gully v. Gully, Tex.Civ.App., 1915, 173 S.W. 1178. However, this is not so as respects a written agreement respecting child support. This suit and the judgment is based upon the written agreement of the decedent to pay the support of his minor children. We cannot agree that the so-called merger that took place upon approval of the agreement in the decree of divorce supplanted or altered the obligation of the contract. Smith v. Blanton, Tex.Civ.App., 240 S.W. 651. See also Newman v. Burwell, supra; Snipes v. Snipes, Tex.Civ.App., 174 S.W.2d 741. We are therefore constrained to hold that appellant’s point of error number six should be and it is hereby overruled.

The decision of the trial court is hereby affirmed.