author: NYE, Justice.

text:
    D. R. CURTIS et al., Appellants, v. John B. CAREY, Jr., Appellee.
    No. 95.
    Court of Civil Appeals of Texas. Corpus Christi.
    July 29, 1965.
    Supplemental Opinion Aug. 6, 1965.

      Cox & Wilson, Joseph F. Molloy, Brownsville, for appellants.
    Osee Fristoe, Harlingen, Selden N. Sne-deker, Harlingen, for appellee.
   NYE, Justice.

This is an appeal from a judgment for damages based upon a wrongful levy of attachment and conversion of personal property. A prior attempted appeal was dismissed for want of jurisdiction by this court. (Curtis v. Carey, 378 S.W.2d 418) The case is now properly before us by writ of error. Appellant Curtis obtained a judgment in Brazos County against S. M. Sheppard. In an effort to collect the judgment appellant obtained a writ of attachment directing the sheriff of Cameron County to seize certain personal property belonging to Sheppard. In executing the writ the sheriff attached, among other things, a Piper Airplane which belonged to appellee Carey. Sheppard told the sheriff that this aircraft belonged to Carey; however, upon instructions from the appellant’s attorney, the aircraft was seized and ultimately sold. Carey brought suit against appellant Curtis and the sheriff for the value of the airplane and for the loss of the use of the plane. The sheriff filed a third-party-practice cross-complaint (Rule 38, Texas Rules of Civil Procedure) against appellant Curtis as principal on the sheriff’s indemnity bond and against James F. Cooper and Lee J. Court as sureties on the bond. Answers to the suit and cross-action were filed by the sheriff, Cooper, Court and the appellants. On September 3, 1963, the trial court set the case for trial for November 7th, 1963. Contention is made by appellant that he did not have notice of the setting.

On September 4, 1963, appellee’s attorney wrote a letter to the attorneys of record for appellant advising them that the trial court had set the case for trial on November 7, 1963. On October 1, 1963, the attorneys for appellant wrote a letter to the attorney for the appellee advising him that the undersigned attorneys for the appellant were no longer representing him and that the appellant’s complete files had been returned to him so he could obtain other counsel. Appellant’s attorneys had not sought permission to withdraw from the case. The trial court proceeded to trial in the absence of the appellant, entering judgment for ap-pellee Carey against the sheriff and appellant for $1500.00, the value of the aircraft, and for $3920.00 for the value of the loss of use of the aircraft during the time in controversy, and for all costs of suit. The court further rendered judgment that the sheriff recover from appellant Curtis and defendants Court and Cooper the sum of $250.00 attorney’s fees and any and all sums which the sheriff may pay by virtue of the judgment including costs herein.

The judgment recited that defendants had filed answers to the suit, that the counsel of record for the defendants had been notified of the setting; that appellee was the owner of the aircraft at the time of the levy of attachment; that the appellant and the sheriff had been advised of the ownership of the aircraft by the appellee; that the appellee had been deprived of the use of the aircraft from the date of the levy until the present date; that beginning three days after the date of the levy of attachment the aircraft would be available and suitable for rental and that a demand for the rental of the aircraft existed. Only Curtis perfected this appeal.

Appellant’s first group of points complain of the trial court proceeding to trial without the appellant being present or represented by counsel at the trial. Appellant contends that Rule 330(b), T.R.C.P. provides for the way in which contested cases may be set for trial. Appellant’s attorneys apparently answering the notice of setting, wrote a letter advising that their firm had withdrawn from the case and no longer represented the appellant. The record does not indicate that the appellants applied for permission to withdraw nor does the record show that any permission to withdraw as attorneys of record was given by the court. The letter advising the attorneys for appellant of the setting and their answer was introduced in evidence. We hold that such attorneys, being officers of the court, and once having appeared as attorneys of record for appellant, they continue to constitute the attorneys of record for such party until the trial court gave them permission to withdraw. See rules governing the State Bar of Texas, Art. XIII, Cannon of Ethics, § 3, ¶ 40, Withdrawal from Employment as Attorney or Counsel, Vol. 1A, V.A.C.S., p. 241. We hold that there is sufficient evidence in the record from which the court found that the appellant had notice of the trial date. The setting in September for the early part of November certainly gave the appellant ample time for preparation. The provisions of Rule 330 of Subdivision (b) relative to the setting, are directory and not mandatory. Texas Employers’ Insurance Association v. Yother, Tex.Civ.App., 306 S.W.2d 730. There was no abuse of discretion in proceeding to trial. The appellants’ points one through three are overruled.

Appellants’ fourth and fifth points complain of the judgment awarding $1500.00 as the value of the aircraft at the time of the attachment because the aircraft was not in a condition to fly on the date of the seizure and there was no testimony as to the market value of an unrepaired airplane, nor was there a definite date of the seizure of the airplane. The evidence shows that the writ of attachment was received on November 19, 1962; that pursuant to the writ the deputy sheriff went to the place of business of Mr. Sheppard and attached certain property including the aircraft. When Sheppard told the deputy sheriff that the aircraft belonged to the appellee, the deputy said that he would just put a tag on the airplane so they couldn’t move it. There was testimony that the deputy sheriff received instructions from the attorney for the appellant to go ahead and levy on the aircraft. Appellee testified that the next time he checked on the plane it had been hauled away.

As to the condition of the aircraft, Sheppard testified that: “ * * * all there was to do on the airplane to get it flying was to fasten down the engine mounts, put the cowling on it, have it inspected, and then it was ready to go.” After stating their familiarity with the airplane in question, the appellee, and Sheppard, testified that in their opinion the reasonable market value of the aircraft on the date of the levy of the attachment was $1500.00. We hold that there was ample evidence in the record to assess the proper value of the aircraft. The record indicated that the aircraft would not depreciate in value in the future, in fact Sheppard testified that there was a big demand for this type of plane and the value raises as time goes on. A few days one way or the other in this situation would not have affected the value of the plane. It was undisputed that the place of seizure was in San Benito, Texas. We believe that there was sufficient compliance with the general rule that the measure of damages for wrongful attachment is the value of the goods at the time and place of seizure. Appellants’ points four and five are overruled.

Appellant’s sixth point complains that the trial court erred in granting judgment for appellee in the amount of $1500.00 in absence of testimony that the airplane had not been returned, replaced by similar property, or paid for by the appellant after the seizure and prior to the trial, and further in making the finding of continued deprival of the appellee’s use of the property by appellant. This point is without merit and is overruled. The trial court found that the appellant had at all times since the date of levy retained possession and deprived appellee of the use and possession of the aircraft. The record indicates that the aircraft was held by the sheriff until sold at the sheriff’s sale. The aircraft was sold to the appellant. We find that the evidence is sufficient to support the trial court’s finding.

Appellant’s seventh point complains that the trial court erred in finding that the appellee was the owner of the airplane at the time of the levy of attachment where the transaction was a conditional sale and there was no showing that the condition had been met. The bill of sale was introduced in evidence which made out a prima facie case of a sale and the resulting transfer of title. See 50 Tex.Jur.2d § 198 and cases cited therein. The record indicates that the appellee paid for the airplane and the parties treated the sale as complete. The seller was to make certain repairs. However, such contractual agreement was only a matter of concern between the seller and the purchaser. This would not affect the purchaser’s title to the aircraft when questioned only by a third party who was a stranger to the transaction.

Appellant’s eighth, ninth and tenth points complain of the finding in the judgment that appellee was the owner of the aircraft at the time of the levy of attachment where the record shows that the title and registration of the airplane was in the name of Sheppard and appellant relied upon the recorded ownership. The section of the U. S. Code governing sales and registration of aircraft under Chapter 9, Title 49, Sec. 523, (now Chapter 20, Title 49, § 1403(c) ) provided as follows:

“No conveyance the recording of which is provided for by section 503(a) (1) of this section made on or after August 22, 1938, * * * shall be valid in respect to such aircraft * * against any person other than the person by whom the conveyance or other instrument is made or given, his heir or devisee, or any person having actual notice thereof, until such conveyance or other instrument is filed for recordation in the office of the Administration. * * * ” (Emphasis supplied).

The recordation section of the U. S. Code is to protect an innocent purchaser and others dealing with aircraft who do not have actual notice of any sale. In the case of Marshall v. Bardin, 169 Kan. 534, 220 P.2d 187, cited by both parties, it has been said that the intent and and purpose of the recording provisions of Civil Aeronautics Act is to protect persons who have dealt on the faith of recorded title of aircraft and as to whom it would be a fraud to give effect to unrecorded titles to their detriment. An attachment creditor is not a purchaser for value buying upon the strength of a recorded title and his attachment does not per se affect the title at all.

The appellant had actual notice that the aircraft had been sold to the appellee. The sheriff’s deputy had actual notice of its sale and reported such sale to appellant’s attorneys. The bill of sale was dated and acknowledged prior to the levy by many months. Appellants’ points six through ten are overruled.

The trial court found that appellee had been deprived of the use of the airplane from the date of the levy of the attachment (November 19, 1962) to the date of the judgment (November 7, 1963), and gave recovery in the amount of $3,920.00, being the value of the loss of use during the period of time in controversy to the date of judgment. Appellants’ points eleven through sixteen complain of such award, contending that the length of time is indefinite and uncertain, that the damages are speculative, that there was no showing of any demands for the use of the airplane, and that the damages if any for such period of time, should be limited to the market value of the plane at the time of levy plus legal interest from that date. Appellant also complains that such award amounts to a judgment for exemplary damages.

There was some testimony that the rental value of a plane of this kind in Cameron County was about eight dollars per hour, and that the cost of operation would be three dollars per hour, and that such plane could be rented about 18 hours per week. However, there was no testimony that the plane had ever been rented. The plane was not in operating condition at the time it was attached, and for a period of approximately seven months prior thereto, it laid in an unrepaired condition, not used or rented. Before it could be put to use, it would have to be put in proper mechanical operating condition, federally inspected, licensed and approved.

From the record, we find that the evidence relied upon by the trial court and appellees with reference to the loss of rise was too uncertain and speculative, and the profits which might have been made from the use of this airplane were not shown by any proof to that degree of certainty which the law requires. Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097; Wade v. Southwestern Bell Telephone Company, Tex.Civ.App., 352 S.W.2d 460, 92 A.L.R.2d 913; Schoenberg v. Forrest, Tex.Civ.App., 253 S.W.2d 331; Munke v. Hubbard, Tex.Civ.App., 281 S.W.2d 165.

The appellee did not testify as to any special damages that he suffered. There was no testimony by the appellee’s father, witness Sheppard, or any other witness that the airplane had ever been rented. Since there was no evidence which would show any actual damages suffered by the appellee for the loss of use of his airplane, the only remaining basis for the award of $3920.00 would be the loss of profit in renting the plane to others. The evidence as to this element was factually insufficient. Southwest Battery Corporation v. Owen, supra, and Schoenberg v. Forrest, supra. Appellee made no effort to replevy the airplane or secure another in its place with which to continue the business of renting to others. This is an important factor to be considered in order to recover for loss of profit in cases of wrongful attachment. Taylor Bros. Jewelry Co. v. Kelley, Tex.Civ.App. (1916), 189 S.W. 340 and cases cited therein.

When we consider the condition of the airplane, its non-use for a long period of time prior to the levy, the fact that appellee had not theretofore engaged in the business of renting it out for business purposes, and the speculative nature of the testimony with reference to the profits to be secured from its use, we find that the trial court erred in arriving at such damages in the amount of $3,920.00. We hold that the most' that appellee was entitled to under the state of the record was the value of the plane, plus legal interest at the rate of 6% per annum from the date of the levy. Taylor Bros. Jewelry Co. v. Kelley, supra, Kauffman et al. v. Armstrong, 1889, 74 Tex. 65; 11 S.W. 1048; Fisher v. Scherer, Tex.Civ.App. 1914, 169 S.W. 1133; Richardson v. Jankofsky, Tex.Civ.App.1893, 23 S.W. 815; Page v. Hancock, Tex.Civ.App.1947, 200 S.W.2d 421, n. r. e.; Kauffman v. Babcock, 1887, 67 Tex. 241, 2 S.W. 878; Wallace & Co. v. Finberg, 1876, 46 Tex. 35; Weaver v. Ashcroft, 1878, 50 Tex. 427; Vincent v. Bell, Tex.Civ.App.1929, 22 S.W.2d 753; 6 Tex.Jur.2d 115.

As stated earlier in this opinion, the court rendered judgment also against the sheriff in the same amount as against Curtis, and a third-party judgment in favor of the sheriff against defendant Curtis and cross defendants Court and Cooper, jointly and severally for the sum of $250 attorney fees, and further that he recover from Curtis, Court and Cooper jointly and severally any and all sums which the sheriff may pay by virtue of the judgment, including costs. The sheriff, Court, and Cooper have not appealed. It is the general rule that where one party appeals from a judgment, a reversal as to him will not justify a reversal against the other non-appealing parties. This rule, however, does not apply in cases where the respective rights of the appealing and non-appealing parties are so interwoven or dependent on each other as to require a reversal of the whole judgment where a part thereof is reversed. Lockhart v. A. W. Snyder & Co., 139 Tex. 411, 163 S.W.2d 385, 392; American Indemnity Co. v. Martin, Tex.Com.App., 84 S.W.2d 697; Appellate Procedure in Texas, Sec. 18.13. In this case, the rights of the sheriff, appellant, and the sureties on the indemnity bond to the sheriff are so interwoven and dependent upon each other, that if the case is reversed as to appellant, no effective and full relief can be given unless the judgment of the trial court be reversed in toto, as to all parties to the suit.

We have found that appellee was entitled to judgment against appellant and the other defendants below in the sum of $1,500.00, with interest at 6% from November 19, 1962 to November 7, 1963, the date of the judgment, and with interest at the rate of 6% on the amount of the judgment from date until paid. We have found, as an evidentiary fact, that appellee did not show by sufficient evidence that he was entitled to recover the sum of $3,920.00 awarded him for lost use of the airplane. In the interest of economy, and to save the necessity of a new trial, we are offering to appellee an opportunity to file in this court within ten days from the date this opinion is delivered, his agreement that he remits, both in this court and in the trial court as to all defendants, appealing and nonappealing, all of said judgment except $1,500.00, the value of the airplane, and $87.00, being interest thereon from the date of the levy to the date of the trial court judgment at 6% per annum. In such event, the judgment will be reformed to the sum of $1,587.00 with interest at 6% per annum from November 7, 1963 until paid, with the defendant sheriff to have the same judgment (including the sum of $250 attorney fees) over and against the parties, Curtis, Court and Cooper, jointly and severally, on his indemnity bond as awarded in the original judgment. Otherwise, the judgment of the trial court in its entirety, as to all parties is reversed, and the cause remanded for new trial.

SUPPLEMENTAL OPINION

The unconditional remittitur as to all defendants, appealing and non-appealing, in the amount of $3,920.00, having been filed in the trial court and in this Court in compliance with the suggestions made in the original Opinion, the judgment as modified in said Opinion is affirmed. The costs of this appeal will be apportioned equally between the parties.

Motion for rehearing may be filed by either party within fifteen days from the date this Supplemental Opinion is delivered.

Affirmed.


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    Oscar T. KUNKEL et ux., Appellants, v. POE LAND & DEVELOPMENT COMPANY, Inc., and William L. Nolen et ux., Appellees.
    No. 83.
    Court of Civil Appeals of Texas. Corpus Christi.
    July 29, 1965.

      Kelley, Looney, McLean & Littleton, Jackson Littleton, Edinburg, for appellants.
    Morris Bogdanow, Houston, for appel-lees.
   SHARPE, Justice.

This is an appeal from a judgment in favor of Poe Land and Development Company, Inc., appellee, plaintiff below, hereafter sometimes called Poe, against Oscar T. Kunkel and his wife, Mary Kunkel, appellants, defendants below, hereafter sometimes called Kunkel. The judgment, in substance, awarded Poe rescission of a contract for the exchange of properties entered into in November, 1961; vested title in Poe to the Holiday Lodge Motor Courts in Rockport, Aransas County, Texas; ordered cancellation of certain notes and liens held by Kunkel, received by him in part payment of a dairy farm located in Cameron County, Texas, which he had exchanged for the Aransas County Property; ordered cancellation of a note and lien held by E. L. Mayberry, a defendant in the trial court who has not appealed; and awarded Poe a recovery of $1,600.00 against Kunkel for net profits realized by him from the operation of said Holiday Lodge Motor Courts between November 4, 1961 and January 16, 1963, the date of judgment.

Kunkel asserts ten points of error on this appeal, in substance, as follows: (1) Failure to grant a continuance, (2) error in submitting Special Issue One, (3) error in admitting incompetent hearsay evidence in connection with Special Issue One, (4) error in entering judgment based upon the answer to Special Issue One, (5) refusal to submit appellants’ requested special issues in connection with the cause of a foreclosure by the first lien holder on the Cameron County property, formerly owned by Kun-kel, (6) error in the submission of Special Issue Two, particularly, since in inquiring about a “failure of consideration” it submitted a legal rather than a fact issue for determination of the jury, (7) error in submitting Special Issue Four, (8) error in entering judgment based upon findings, which, in effect, established that E. L. May-berry was an agent for Poe and also represented Kunkel, (9) error in entering judgment in the absence of a necessary party, i. e., Sinton Building and Loan Association, which held an indebtedness and lien on the Aransas County property, and (10) error in entering judgment some ten months and several terms of court after the jury verdict.

The material facts will be briefly stated. On October 23, 1961, Poe and Kunkel entered into a written contract whereby Kunkel agreed to convey to Poe a farm located in Cameron County, Texas, consisting of some 617 acres of land together with a herd of dairy cattle and certain equipment and buildings for an agreed price of $346,-000.00, payable by Poe’s assumption of a first lien indebtedness of approximately $167,000.00 held by Mr. Charles Gray and the execution of a second lien note in the amount of $80,000.00 to Kunkel; and whereby Poe agreed to convey to Kunkel the Holiday Lodge Motor Courts in Rock-port, Texas, at an agreed price of $135,-000.00, on which there was an indebtedness and lien in the amount of $35,000.00 placed against the said property by Kunkel as a part of the transaction. The original exchange agreement provided that Poe would pay the monthly installment of $1304.80 due to Gray on November 1, 1961. However, prior to said date, Mr. P. O. Eiller, representing Poe, and Kunkel had an oral understanding that Kunkel would make such payment and that Poe would pay certain taxes of approximately the same amount owed by Kunkel on the Cameron County property to which Poe acquired title. The transaction was closed at Rockport, Texas, on November 3, 1961, at which time Lewis Bogdanow, President of Poe, Mr. Cabiness, attorney and representative of an abstract or title company, Mr. E. L. Mayberry, a real estate broker, and other persons involved in the over-all exchange of properties, the details of which are not necessary to decision of this case, were present. Kunkel did not attend the meeting at which the transaction was closed, but the jury found, in answer to Special Issue 4 that Kunkel was represented by Mayberry on such occasion, and, also, in answer to Special Issue 9, that Mayberry was the agent of Poe on November 3, 1961. The jury further found, in answer to Special Issue 5, that Mayberry represented that the November 1, 1961 payment to Gray, the first lien-holder, had been made by Kunkel and, in answer to Special Issue 6, that Poe would not have consummated and closed the transaction but for such representation by May-berry.

The basic facts concerning the payment of November 1, 1961, are as follows: Pursuant to Kunkel’s instructions, his farm manager mailed a check to Gray in the amount of $1304.80 to cover the said installment. The check was returned by the Los Fresnos State Bank, Los Fresnos, Texas, when it was presented for payment on November 7, 1961, on account of insufficient funds. The check was good on October 31, 1961, its date of issue, until November 14, 1961, except on November 6th and 7th. Kunkel’s explanation of why the check to Gray was not good on such dates was that his farm manager had to write checks for the payroll and expenses in the operation of the dairy farm, acquired by Poe on November 3, 1961, which should have been paid by Poe, resulting in the reduction of the bank balance to approximately $200.00 below the amount of the check to Gray. Kunkel testified that he was not aware of the fact that check had been returned unpaid until he was contacted by an attorney for Gray on or about November 11,1961, who advised that Gray was going to foreclose his lien on said property unless the balance due thereon was paid in full. The foreclosure sale was held on the first Tuesday in January, 1962, when Gray bid in the property. Thereafter, Gray recovered a deficiency judgment against Kunkel in the amount of approximately $40,000.00. Kunkel testified that prior to November 11, 1961, Mr. Eiller, who had taken charge of the Cameron County Dairy Farm on November 3, 1961, had sold a number of the cattle covered by Gray’s mortgage, in apparent violation thereof. On the trial of the case Kun-kel requested two special issues inquiring, in substance, whether the sale of cattle by Poe was a cause of the subsequent foreclosure of the deed of trust on the Cameron County farm, which werte refused by the court.

Poe’s second amended original petition contained the following allegation: “That thereafter said property was foreclosed under said mortgage by said Charles Gray; that said insufficient check caused and made possible said foreclosure proceedings which constituted failure of consideration and said representation that said payment had been made was in fact false, and were valid grounds for rescission of said transaction.”

Special issues 1 and 2, submitted to the jury and the answers thereto are as follows:

“SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that the failure, if any, to make the payment due November 1, 1961, on the Charles Gray note caused and brought about the foreclosure of the mortgage held by Charles Gray?
Answer ‘Yes’ or ‘No’.
We, the jury, answer: Yes.
If you have answered Special Issue No. 1 ‘Yes’, then you will answer the following Special Issue, otherwise you need not do so.
SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that causing the foreclosure of the mortgage by Charles L. Gray by Defendant Kunkel, if you have so found, constituted failure of consideration for the deed to the property described in Plaintiffs’ Second Amended Petition and known as the Holiday Lodge Motor Courts ?
Answer ‘Yes’ or ‘No’.
We, the jury, answer: Yes.”

No definition or explanatory instruction ■was given in connection with either issues 1 and 2.

Disposition of this appeal will be expedited by first considering Appellants’ point six, reading as follows:

“The District Court erred in its submission of Special Issue Number Two for the reasons (each of which is separately assigned as error) that:
(a). The said issue has no adequate predicate that Appellant Kunkel caused the foreclosure, said Kunkel not having been named in the first issue:
(b). The said issue assumes facts on which it was based which were not conclusively established; and
(c). The said issue constitutes a legal rather than a factual inquiry in asking whether there was a ‘failure of consideration’ without there being given any instructions or definitions as to that term as applicable to the case as bar.”

We sustain appellant’s point six and the contentions made thereunder. The trial court should have sustained the objections made by counsel for Kunkel to said Special Issue No. 2, the substance of which are contained in appellants’ point six. Said issue clearly submitted a legal issue rather than a factual issue for the determination of the jury and was therefore improper. Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358, 360 (1944); Schoenberg v. Forrest, 228 S.W.2d 556, 563 (Tex.Civ.App., 1950, wr. ref. n. r. e.); Advance Aluminum Castings Corp. v. Schulkins, 267 S.W.2d 174, 181 (Tex.Civ.App., 1954, n. w. h.); Minneapolis-Moline Company v. Purser, 361 S.W.2d 239, 245 (Tex.Civ.App., 1962, n. w. h.); Foerster v. Peoples, 362 S.W.2d 918 (Tex.Civ.App., 1962, n. w. h.). In the last-cited case the court said:

“Rule 279, Texas Rules of Civil Procedure, requires the trial court to submit controlling issues which are supported by the pleadings and the evidence. It is well settled that only issues of fact are to be submitted to the jury. As framed, special issue number one called on the jury to determine the effect of appellant’s actions upon the oral contract between the parties. This is clearly a question of law and as such is an improper submission. Knutson v. Ripson, Tex.Civ.App., 346 S.W.2d 424, affirmed 354 S.W.2d 575; Advance Aluminum Castings, Corp. v. Schulkins, Tex.Civ.App., 267 S.W.2d 174, NRH; Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358. Appellant’s first point of error is sustained. As this error requires a reversal of the case, it is not deemed necessary to discuss the other points of error.”

It was the duty of the court (not the jury) to determine whether there was a failure of consideration in this case based upon ultimate facts found by the jury or conclusively established. Special Issue No. 1 did not refer to either party and did not inquire as to which one of them the failure to make the payment of November 1, 1961 should be attributed; and, therefore, it did not furnish a predicate for the assumption in Special Issue No. 2 that Kunkel caused the foreclosure of Gray’s mortgage. The last-mentioned issue assumed such fact without it having been found by the jury in answer to Special Issue No. 1, or having been established conclusively. Under such conditions the answer of the jury to Special Issue No. 2 cannot be given any effect.

On oral argument of this case counsel for Poe conceded that Special Issue No. 2 improperly submitted a legal issue to the jury, but then took the alternative position that even when the answer to it is disregarded, still, the judgment should be affirmed on the basis that failure of consideration was established as a matter of law. In response to the request of the court, all parties filed supplemental briefs on such contention, which had not theretofore been briefed. After analysis of such additional argument and authorities, we are of the opinion that in the state of the record we cannot determine that failure of consideration was established as a matter of law, and it appears that issues of fact existed as to the cause of the said foreclosure which were not resolved on the trial of this case. There is no proper finding of fact presented by the present record which establishes responsibility for said foreclosure. The judgment cannot correctly rest upon the determination by a jury of the legal issue concerning failure of consideration. For the reasons given, appellants’ point six is sustained.

Reversible error is also presented by appellants’ points seven and eight which involve consideration of special issues 4, 5, 6 and 9, reading as follows:

“SPECIAL ISSUE NO. 4
Do you find from a preponderance of the evidence that at the time of the closing of the transaction in question in Rockport, Texas, on November 3, 1961, Defendant Kunkel was represented by E. L. Mayberry?
Answer ‘Yes’ or ‘No’.
We, the Jury, answer: Yes.
^ % ‡ ifc *
SPECIAL ISSUE NO. 5
Do you find from a preponderance of the evidence that at the time of the closing of this transaction in Rockport, Texas, E. L. Maberry represented that the November 1, 1961 payment of Thirteen Hundred and Four and 80/100 Dollars ($1304.80) to Charles Gray had been made by Defendant Kunkel?
Answer ‘Yes’ or ‘No’.
We, the Jury, answer: Yes.
‡ 5|i ‡ ‡ *
SPECIAL ISSUE NO. ó
Do you find from a preponderance of the evidence that but for such representation by E. L. Maberry, if you have so found, Plaintiffs would not have consummated and closed the transaction, executing the deed to Defendant Kunkel to the Holiday Lodge Motor Courts and the note and deed of trust to Defendant Kunkel.
Answer ‘Yes’ or ‘No’.
We, the jury, answer: Yes.
* Sfc >}< * * *
SPECIAL ISSUE NO. 9
Do you find by a preponderance of the evidence that on November 3, 1961, E. L. Maberry was an agent of Poe Land and Development Company.
Answer ‘Yes’ or ‘No’.
We, the jury, answer: Yes.”

The result of the jury’s findings on special issues 4 and 9 is that Mayberry (incorrectly spelled Maberry in some instances) “represented” Kunkel and “was an agent of Poe Land and Development Company” on the date of closing the transaction here involved on November 3, 1961.

Appellants objected to the submission of Special Issue 4 on the grounds that it was vague and indefinite in asking whether Kunkel was represented by May-berry; that the word “represented” was not defined; and that the issue was not supported by the evidence. Such objections should have been sustained by the trial court. The issue, as submitted, was vague and indefinite and insufficient to constitute a submission of agency. Also, the evidence was factually insufficient to raise and support an issue that Mayberry was the agent for Kunkel in connection with the closing of the transaction. Special Issue 5 was conditionally submitted on an affirmative answer to issue 4, and Special Issue 6 was conditionally submitted on an affirmative answer to issue 5. Appellants objected to issues 5 and 6, among other reasons, because each of them was immaterial to any issue before the court. Under the conditions stated, such objections were good. In the situation here presented the findings on Special Issues 4, 5 and 6 cannot lend support to a judgment in favor of appellee. This is true not only for the reasons just given but also because the jury found in answer to Special Issue 9 that Mayberry was the agent of appellee on the date the transaction was closed, which would bring the case within the well-settled rule that a party may not recover from another on the basis of a misrepresentation made to him by his own agent. * Appellants’ points seven and eight are sustained.

Since the case must be reversed and remanded for new trial, because of our action in sustaining appellants’ points six, seven and eight, extended discussion of their remaining points is unnecessary. Appellants’ point one (concerning the failure of the trial court to grant a continuance) and their point ten (relating to the delay in entry of the judgment) are overruled. Appellants’ contentions under their points two and four (concerning the manner in which Special Issue 1 was submitted) have been considered in connection with our discussion of appellants’ point six. The matters complained of under appellants’ point three (concerning the admission of alleged hearsay testimony) become immaterial in view of our disposition of the case. The contentions made under appellants’ point five (involving appellants’ requested special issues which were refused by the trial court), and their point nine (involving the contention that the Sinton Building and Loan Association was a necessary party to the suit), will be for the determination of the lower court, if they arise during the course of the new trial.

The judgment of the trial court is reversed and the cause remanded for new trial.


author: CHADICK, Chief Justice.

text:
    AMERICAN HYDROCARBON CORPORATION, Appellant, v. Joe HICKMAN, Appellee.
    No. 7652.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 3, 1965.

      James A. Knox, Arthur M. Albín, Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellant.
    Jay S. Fichtner, Dallas, for appellee.
   CHADICK, Chief Justice.

Joe Hickman, pleading an action upon a written contract for personal services, sued American Hydrocarbon Corporation. Summary Judgment was rendered wherein plaintiff Hickman was awarded $50,000 on the merits of the action and an attorney fee of $5,750.00, together with interest, costs, etc., and defendant American Hydrocarbon Corporation has appealed. The judgment of the trial court is affirmed.

First, the appellant corporation appeals for reversal because the trial judge’s initial act in the summary judgment trial allowed American Hydrocarbon Corporation’s attorney to withdraw from the case at that crucial stage, and thereafter, in the absence of legal counsel for appellant, proceeded to hear Hickman’s motion for summary judgment and rendered judgment thereon unfavorable to the corporation. Preceding the hearing the American Hydrocarbon Corporation had timely filed an answer to Hickman’s original petition, but did not file a reply to his motion for summary judgment.

The appellant acknowledges in its brief that established practice required it to allege in its motion for new trial and to submit proof at a hearing thereon tending to show that the absence of legal counsel of its own choice at the trial was not due to its fault or negligence, or that of counsel, that it had a meritorious defense to the cause of action asserted against it, and that failure to request a continuance was excusable under the circumstances.

Labor will be reduced by considering immediately one sector of the general rule appellant acknowledges; that is, the requirement that the motion for new trial contain an allegation that the movant has a meritorious defense to the action plead. Such an allegation in the motion for new trial is a prerequisite to relief from a judgment entered .under the circumstances shown. Strode v. Silverman (Tex.Civ.App.1949, wr. ref.), 217 S.W.2d 454; Maeding v. Maeding (Tex.Civ.App.1941, no writ), 155 S.W.2d 991; Farmers Gas Co. v. Calame (Tex.Civ.App.1924, no writ), 262 S.W. 546; McCaskey v. McCall (Tex.Civ.App.1920, no writ), 226 S.W. 432; and Drummond v. Lewis, (Tex.Civ.App.1913, no writ), 157 S.W. 266. Appellant’s first and second points of error are based upon assignments One and Two in the Motion for New Trial filed in the trial court. These two assignments, quoted in full, read:

“I. The Trial Court erred in granting Summary Judgment against the Defendant for the reason that there are genuine issues of material fact to be decided in the cause.
“II. The Trial Court erred in rendering Summary Judgment against the Defendant after E. L. Markham, Jr., attorney of record for the Defendant, had been permitted by the Court to withdraw as counsel immediately prior to entry of Summary Judgment, thereby leaving Defendant without counsel and without opportunity to hire new counsel to represent it herein.”

That the quoted material does not contain allegations of a meritorious defense to the cause of action plead by Hickman is patent on inspection.

The above disclosed hiatus, in the motion for new trial rendered it insufficient to present for trial court revision any mistake the trial judge may have made in allowing the corporation’s legal counsel to withdraw. The controlling rule is stated in 41 Tex.Jur.2d 360, sec. 154, to-wit:

“A party to a civil case seeking relief from a judgment rendered in the absence of his counsel must show in his motion papers, by averments of fact as distinguished from conclusions of law, not only that he was prevented from presenting his case at a proper time through some cause unmixed with negligence on his part, but also that he has a meritorious case.”

Next, the appellant challenges the use and sufficiency of Hickman’s sworn original petition as an affidavit in support of his motion for summary judgment. Its’ defects as a supporting affidavit are listed as failure of the affidavit to: 1) show the facts stated were within the affiant’s personal knowledge, and 2) affirmatively show the affiant competent to testify to the matters embraced therein. Again, it must be noted that the appellant filed no reply in the trial court to Hickman’s motion for summary judgment.

The failure of the affidavit in the respects listed above are waived unless objection is lodged thereto in the trial court. Youngstown Sheet & Tube Co. v. Penn (Tex.Sup.Ct.), 363 S.W.2d 230. However, the appellant points out that these defects in the affidavit are distinctly set out as grounds for a new trial in his motion, and as such constitute objections to the affidavit made in the trial court. City of Mesquite v. Scyene Investment Co. (Tex.Civ.App.1956, wr. ref., n. r. e.), 295 S.W.2d 276, is proffered as authority for the proposition that “In a summary judgment proceeding, calling such matter to the attention of the trial judge on motion for new trial is making such objection in the trial court”. No extended analysis of the cited case is required to demonstrate that the case does not support the proposition.

The City of Mesquite’s amended motion for new trial referred to an affidavit filed after summary judgment was rendered and “incorporated herein as a part of this pleading”. The court held that the trial did not end until the motion was ruled upon, therefore the reference in the motion brought the factual contents of the belatedly filed affidavit to the attention of the court during the course of the trial; and on that basis decided further, that owing to the peculiar nature of the summary judgment practice, the trial court was apprised, during the course of the trial, that a substantial fact dispute existed. The conclusion reached in City of Mesquite is quite different from a decision that an objection to inadequacies of the nature here concerned may be dispensed with when such inadequacies become the subject of a ground for a new trial in a motion for that purpose. No objection, as the term is understood in the trial of lawsuits, was made to the affidavit at any time before the motion for new trial was filed and the court was not required to rule upon its sufficiency one way or another. Acceptance of the appellant’s unique theory would distort and pervert the function of the motion for new trial. “The object of a motion for new trial is to point out the rulings complained of, and call them to the attention of the trial judge, so that he may have an opportunity of reviewing his decisions, and, if need be, correct them.” Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270, 271. Appellant’s point of error No. 3 is overruled.

The probative deficiency of hearsay evidence and factual conclusions in the affidavit supporting Hickman’s motion for summary judgment are the subject of appellant’s fourth point of error. Such evidence and conclusions are asserted to be the substance of these two allegations in Hickman’s sworn original petition: “All of the personal services that were supposed to have been rendered under the aforesaid letters of agreement have been completed to the full satisfaction of Defendant and accepted by Defendant”, and “ * * * Plaintiff has an assignment from the said A. W. Wormser and P. O. Geddie of all of their right, title and interest in and to the benefits they may have derived from the said letter agreements marked Exhibit ‘C’ and ‘D’,”

The record presented does not manifest error. Rule 54, Vernon’s Annotated Texas Rules, is applicable to the allegations first mentioned. By force of the rule such averment is taken as proven, when not specifically denied. No denial was filed. Rule 93 is applicable to the second allegation. The genuineness of an assignment by Rule 93’s provisions, is held as fully proved in the absence of a sworn denial. A sworn denial was not filed. Had this been a conventional trial, no proof that the services in question had been rendered would have been required; nor would have proof of an assignment have been necessary. No reason is suggested or apparent why these rules do not apply in summary judgment proceedings.

The remaining points of error, other aspects of the points of error discussed, together with the whole of appellant’s argument, have been attentively considered and the conclusion reached that reversible error is not shown. The appellant’s points are overruled and the judgment of the trial court is affirmed.


author: BRADY, Commissioner.

text:
    Forrest William STONE, Plaintiff-Respondent, v. Dorothea Carla STONE, Defendant-Appellant.
    No. 32085.
    St. Louis Court of Appeals. Missouri.
    July 20, 1965.
    Motion for Rehearing or to Transfer to Supreme Court Denied. Aug. 24, 1965.
    Application to Transfer Denied Sept. 13, 1965.

      Greensfelder, Hemker & Wiese, Donald S. McDonald, St. Louis, for defendant-appellant.
    Shaw, Hanks & Bornschein, Charles M. Shaw, Clayton, Arthur B. Shepley, Jr., St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

This appeal is from a judgment of the juvenile division of St. Louis County circuit court modifying an award of custody entered by the domestic relations division thereof. The factual situation leading to such an incongruous result need be only briefly stated.

A review of preliminary proceedings will be helpful to place in proper perspective the jurisdictional issue upon which we decide this case. The plaintiff in the instant case filed suit seeking a divorce from the defendant and custody of the four minor children born of their marriage. The defendant filed an answer and a cross-bill wherein she sought a divorce and custody of the children. Her petition also contained a second count sounding in equity whereby she prayed that in the event custody was denied either party in the divorce action, then the court should award her custody together with a reasonable allowance for their support and maintenance. The trial court acted in accordance with the second count of the defendant’s cross-bill. Pending appeal to this court a controversy arose due to a post-trial order regarding custody. That matter was resolved by State ex rel. Stone v. Ferriss, Mo., 369 S.W.2d 244. In accordance with that opinion the trial court entered a new order granting plaintiff custody pending cross appeals to this court. By opinion of April 29, as modified May 22, 1964, this court affirmed the trial court’s decree granting general custody to the defendant. See Stone v. Stone, Mo.App., 378 S.W.2d 824. Therein this court directed that the domestic relations division retain exclusive jurisdiction of these minors during their minority.

We pass now to those facts bearing upon our view of the instant appeal. On June 29, 1964, the parties appeared in the circuit court in response to the judge’s order to show cause why Mr. Stone should not be held in contempt for willful refusal to obey the trial court’s orders regarding custody. Testimony was heard and the court ordered Mr. Stone to comply with its orders as to delivery of the children to the defendant and “ * * * to pay defendant a compensatory fine of $300.00. * * *” The following paragraph appears in that same order: “Court certifies the cause to the Juvenile Division for determination of any changes in the existing orders re custody and support of minor children. * * * ” The balance of the order dealt with the disposition of the children for the summer months and is not pertinent to our inquiry. The same is true of the “compensatory fine.” We will not refer to that matter again.

Plaintiff’s motion to modify was not filed until August 31, 1964, slightly over one month later. It was filed in the juvenile division of the circuit court. That motion sought the modification of the grant of custody to the defendant as affirmed by this court. That was the only relief sought by the plaintiff who specifically alleged “ * * * a change of circumstances sufficient to require a modification of the Court’s order * * * pertaining to the custody of the minor children.” The prayer was that the court modify the previous decree “ * * * and order the minor children to be placed in the major custody and control of the Plaintiff * * * ” with visitation rights to the defendant. The defendant filed her cross-motion to modify seeking to have the plaintiff’s visitation privileges revoked.

Trial on these motions took place in the juvenile court of St. Louis County pursuant to the transfer provisions contained in the order of July 29, 1964. At the opening of such proceedings the trial court stated, “ * * * And as I understand, this matter has been transferred from the Domestic Relations Division to the Juvenile Court * * * and the scope of responsibility for this Court would appear to come in by virtue of Section 211, that is Chapter 211 which is the Juvenile Code and the provisions therein relevant to the welfare of the children in other proceedings. * * ”

The judgment of the juvenile court contains the following pertinent provisions: “On the record and evidence adduced, the Court finds: that the Juvenile Division of the Circuit Court of St. Louis County has jurisdiction in this proceedings by virtue of the transfer of the cause to this division from the Domestic Relations Division of this court of certain proceedings having heretofore been had with respect to an action for divorce instituted by the plaintiff against the defendant; that the order of transfer and certification of the cause to the juvenile division was for determination of any changes in the existing orders re custody and support of minor children; the jurisdiction of the court having heretofore been invoked by virtue of the residence of the parties; and under § 211.031 [RS Mo.1959, V.A.M.S.], the court further finds that the children are without proper care, custody or support because of the conflict existing between the mother and the father stemming from their failure to reach an amicable relationship and to continue as husband and wife in a family setting; * * It is ordered, adjudged and decreed that the minor children, Pamela Stone, Forrest Stone, Jeffrey Stone and Phillip Stone, be placed in the custody of their paternal grandmother, Marie Stone, under supervision of the St. Louis County Child Welfare Services to the exclusion of visitation or custody rights of either parent, Forrest William Stone and Dorothea Carla Stone; * * * that the order heretofore entered for allowance for the maintenance of said minor children with the defendant mother, Dorothea Carla Stone, in the sum of $500 a month is set aside but the plaintiff, Forrest William Stone, is ordered to pay for the maintenance of the defendant, Dorothea Carla Stone, the sum of $65 a week, all subject to further order of the court.” The plaintiff was also ordered to pay certain sums to his mother for the maintenance of the children, the defendant’s attorneys, and the costs.

We are therefore confronted with an amazing and dismaying situation; one where the domestic relations division of the St. Louis County circuit court has certified to the juvenile division of that same court a cause involving custodial rights of minor children in violation of that portion of this court’s opinion directing the domestic relations division to retain continuing and exclusive jurisdiction of the children; where the certification was ordered at a time when there was no motion to modify nor any other pleading then pending before the domestic relations division; where the juvenile division of that court assumed jurisdiction, treated the matter as a juvenile case, found the children without “proper care, custody or support,” and placed them with a person not a party to the modification proceeding and under the “supervision of the St. Louis County Welfare Services to the exclusion of visitation or custody rights of either parent”; where the juvenile court in its order has provided for its continuing jurisdiction over these children; and where the juvenile court has modified the decree in a manner never requested by any of the parties and has awarded monthly alimony to the defendant in spite of the fact she was not the recipient of a decree of divorce.

While not decisive of this appeal, some comment upon the trial court’s action in the face of this court’s opinion seems appropriate. Of course, continuing jurisdiction by the domestic relations division would have been the result even without a specific order of this court in those divorce cases which proceed to judgment upon the bill or cross-bill of the parties. See the cases collected in Mo.Digest, Divorce, At the date of our order we thought that the interests of justice would best be served by so directing in the instant case where judgment was rendered upon defendant’s equitable cross-bill for custody and not upon the plea for divorce. We remain of that opinion and are at a loss to understand why, only one month and seven days later, this clear direction was disregarded.

The defendant’s motion to set aside this order contains allegations contesting the jurisdiction of the juvenile court hut the only points briefed before this court are the contentions the proof was insufficient to support the judgment rendered by the juvenile court and that defendant’s cross-motion to modify should have been sustained. However, we are not required to confine ourselves to those allegations. It is well settled that questions of jurisdiction are of first concern to every court and can arise sua sponte as well as by suggestion of a party. It is equally well settled that if the juvenile court had no jurisdiction to render judgment upon the merits then the jurisdiction of this court is equally lacking. Shepler v. Shepler, Mo.App., 348 S.W.2d 607 and cases cited at [1], p. 609. Shepler was reversed on other grounds, see Shepler v. Shepler; Mo. Digest, Appeal and Error,

Sec. 211.051, RSMo 1959, V.A.M.S., provides for certification of questions of legal custody by “other courts” to the juvenile court provided certain prerequisites are present. Thus it is therein provided that “ * * * when the legal custody or guardianship is incidental to the determination of causes pending in other courts * * * ”, such questions “ * * * may be certified by another court to the juvenile court for hearing, determination or recommendation.” That language is plain, clear, unambiguous, and should easily be understood by anyone who takes the time to read it. It furnishes no authority for the certification in the instant case as legal custody was not incidental to any other question presented by the plaintiff’s motion to modify. Legal custody was the only question presented by that motion. Moreover, this section clearly contemplates some cause be then pending in the certifying court to which the question of legal custody may be incidental. In the instant case, at the date of the alleged certification, there was nothing on file that related to the question of legal custody and nothing bearing upon that issue was filed until over one month later. It follows that the domestic relations division of the circuit court was without authority to certify this cause to the juvenile court.

It is equally apparent the juvenile division had no jurisdiction to enter judgment. In the first place, that judgment was based upon a proceeding under § 211.051, RSMo 1959, V.A.M.S. The court so recites in its judgment. Jurisdiction to proceed under that section and to issue an order resulting in the deprivation of parental custody can be acquired only by the filing of a petition as required by § 211.091, RSMo 1959, V.A.M.S. See State v. Taylor, Mo.App., 323 S.W.2d 534 [7], and see the cases cited therein at footnotes 5 and 6 on page 537.

In the second place the purported judgment rendered by the juvenile division went far beyond the question of custody and attempts to make an award which it could not have made even if it had jurisdiction. The judgment recites the award of $65.00 a month “ * * * for the maintenance of the defendant * * The term “maintenance” in a divorce decree has reference to the support of the minor children of the marriage even though payments are made to the mother. Marley v. Marley, 356 Mo. 870, 204 S.W.2d 261. The term was obviously not so used in the instant case as the recipient of the “maintenance” ordered by the court was, under that same decree, deprived of all custodial rights. The term “alimony” as used in a divorce decree means the allowance made by the court for the support of the divorced wife herself. Marley v. Marley, supra. In the instant case it is apparent that the juvenile court used the term “maintenance” as “alimony.” The order of the juvenile court makes no sense under any other interpretation. In its origin alimony was the method by which the spiritual courts of England enforced the duty of maintenance owed by a husband to a wife during their legal separation. Anderson v. Norvell-Shapleigh Hardware Co., 134 Mo.App. 188, 113 S.W. 733. Alimony has been said to be, in effect, a judgment for the damages the wife sustains by reason of the loss of the right of her husband’s support, Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066, or as being in the nature of an award for damages because of her husband’s breach of the marriage contract. Brinker v. Brinker, 360 Mo. 212, 227 S.W.2d 724. There are few, if there are any, principles of law better settled in this jurisdiction than the rule that alimony may not be awarded except as an incident to a decree of divorce. See cases collected in Mo.Digest, Divorce, In the instant case the defendant was denied a decree of divorce and could not be awarded alimony.

There is one other matter that we need rule upon. The normal procedure under the result reached herein would be to remand this cause to the domestic relations division for trial upon the merits of the plaintiff’s motion to modify. However, such a course is not available in the instant case. The plaintiff never filed his motion to modify in the domestic relations division but filed it in the juvenile division of the circuit court. Since that division was totally without jurisdiction to receive such a pleading, the situation is as if the motion had never been filed. Accordingly, there is now nothing pending upon which trial could be had should this court remand the cause.

It follows that the judgment of the juvenile division was void and of no effect and that the decision of the domestic relations division affirmed by this court in Stone v. Stone, Mo.App., 378 S.W.2d 824, is in full force and effect and the custodial rights of the plaintiff and the defendant are to be governed accordingly. The judgment should be reversed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. Thr judgment should be reversed.

WOLFE, P. J., RUDDY, J., and ROY W. McGHEE, Special Judge, concur.

ANDERSON, J., not participating.


author: NORVELL, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Petitioner, v. Kenneth Ray JONES, Respondent.
    No. A-10628.
    Supreme Court of Texas.
    July 14, 1965.
    Hardeman, Smith & Foy, San Angelo, for petitioner.
    Warren Burnett and Robert D. Pue, Odessa, for respondent.
   NORVELL, Justice.

This is a workmen’s compensation case. The jury found that the injury sustained by the workman, Kenneth Ray Jones, was confined to his right leg; that he suffered a temporary total loss of the use of such leg for nine weeks and that he sustained a 10% permanent partial loss of use of the leg. The judgment based upon this verdict was reversed by the Court of Civil Appeals upon the ground that the issue of total loss of use of the leg had not been properly submitted to the jury. 386 S.W.2d 615. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the District Court.

The appeal turns upon the sufficiency of an objection to the trial court’s definition of “total loss of use.” Rule 274, Texas Rules of Civil Procedure provides that:

“A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. * * *”

The trial court gave the following definition :

“By the term 'total loss of use’ of a member is meant that the member during any given period of time does not possess any substantial utility as a part of the body for the purposes of work.”

The plaintiff-respondent made the following objection to this definition, viz.:

“Plaintiff objects to the definition of ‘total loss of use’ as a definition herein, and specifically requests the court to give the definition approved by the Supreme Court in the ease of Seabolt v. The Travelers Insurance Company, for the reason that it fairly and reasonably submits total loss of use of a member.”

In Travelers Insurance Company v. Seabolt, 361 S.W.2d 204 (Tex.1962), this Court considered the contention that the evidence, as a matter of law, did not support a jury’s finding that Seabolt’s injury had resulted in the “loss of use of his hand.” See Article 8306, § 12, Vernon’s Ann.Civ.Stat. We held that the words “loss of use” as used in the statute meant “total loss of use,” and that:

“A total loss of the use of a member exists whenever by reason of injury, such member no longer possesses any substantial utility as a member of the body, or the condition of the injured member is such that the workman cannot procure and retain employment requiring the use of the member.”

When we read the pertinent parts of the record which are above set out, it is clear that plaintiff’s objection to the trial court’s definition consists of nothing more than a general objection, i. e., a statement that “plaintiff objects to the [trial court’s] definition of total loss of use as a definition herein,” coupled wtih a request that the trial court submit the definition contained in the Seabolt opinion, in lieu thereof.

While it may be that sometimes a requested definition or explanatory instruction may be considered to explain somewhat loosely worded expressions contained in an objection, it has long been a rule of practice in this State that a general objection of the species we have here is in legal contemplation no objection, and that a mere request tc» submit a different definition than that proposed by the trial court cannot be considered as an objection pointing out distinctly the matter to which a litigant objects and the grounds of his objection.

In Isbell v. Lennox, 116 Tex. 522, 295 S.W. 920 (1927), the Court considered an objection worded as follows:

“The plaintiffs excepts and objects [sic] to the court giving, in charge to the jury, the following portions of the charge, to wit.”

This statement of objection was followed by a paragraph of the court’s charge.

It was held that this general objection was nugatory. It was stated in the opinion that:

“This statute was designed to correct
a very important handicap or evil in the trial of cases. Its purpose in requiring the parties or their attorneys to present to the court their objections to the charge clearly is that the party objecting must apprise the court of the error in his charge with a view to its correction.
“The objection must point out to the court the error complained of. If it fails to do that, it does not meet the purpose and requirement of the statute and is no objection at all.”

As bearing upon the contention that, a requested charge could be considered as supplying an objection this Court in the Lennox case expressly approved the holding of the Court of Civil Appeals that:

“[A] party who has not objected to the main charge to the jury has no right to complain of the refusal of the court to give a requested special charge inconsistent with or contradictory of the main charge.” (224 S.W. 524)

Numerous authorities were referred to by the Court as supporting its holding and the Lennox case has subsequently been cited with approval upon the point at issue. In Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991 (1942), it was said that:

“[I]t was the duty of the insurer, if it desired to have that question reviewed on appeal, to specify in its objections to the charge the particulars in which same was incorrect and that duty was not discharged by requesting that the court submit the same questions in different forms. Art. 2185; Isbell v. Lennox, 116 Tex. 522, 295 S.W. 920; Loving County v. Higginbotham, Tex.Civ.App., 115 S.W.2d 1110: error dismissed.”

Similarly, in City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176 (1951), decided long after the Texas Rules of Civil Procedure became effective in the trial courts, it was said that:

“Rule of Civil Procedure No. 274 provides: ‘A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection.’ Assuming that the requested charges were more accurate than those given, a request to give them not coupled with any objection to the form used by the court will not be given effect as an objection to the issues as given. Isbell v. Lennox, 116 Tex. 522, 295 S.W. 920; C. H. Mount joy Parts Co. v. Perfect Circle Co., Tex.Civ.App., 119 S.W.2d 186; Belzung v. Owl Taxi, Tex.Civ.App., 70 S.W.2d 288; 41 Tex.Jur., p. 1065, sec. 253.”

The rule applicable here was succinctly stated in the recent case of Bell v. Missouri-Kansas-Texas Railroad Co. of Texas, 334 S.W.2d 513, 1. c. 517 (Tex.Civ.App.1960, ref. n. r. e.) as follows:

“[A] request for another and different charge is not a substitute for an objection which is insufficient or absent and does not properly call error tc the attention of the court.”

While it is fairly obvious that the trial court’s definition of “total loss of use” differs somewhat from that contained in the Seabolt opinion, this Court has never held that the failure to give an accepted definition of a term in haec verba, in itself, constitutes a reversible error. There are many forms and modes of expression. It may occur to us that the phrase, “possess any substantial utility as a part of the body for the purpose of work” does not embody or suggest exactly the same concept as the Seabolt phrase, “the condition of the injured member is such that a workman cannot procure and retain employment requiring the use of the member.” Other varying meanings between the trial court’s definition and that approved in Seabolt may occur to lawyers studying the two definitions. The point of the matter, however, is that no differences or variances in meaning were distinctly pointed out to the trial judge and he is not, under the authorities, required to lay the two definitions side by side and ascertain for himself if there is a substantial difference between them, and if so, whether the giving of one and the rejection of another would operate to the prejudice of a litigant. The duty to “point out distinctly” is placed upon the litigant by Rule 274.

The respondent as the prevailing party in the Court of Civil Appeals has a point in his brief filed in that court which if sustained would call for an affirmance of the judgment of the Court of Civil Appeals. While this point was not considered by the intermediate court, respondent is entitled to have this Court pass upon it. City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176 (1951).

Complaint was made of the conduct of petitioner’s counsel during respondent’s argument to the jury. Respondent contended that the injury to his leg affected and extended to his back and that he was entitled to compensation for a general injury. The respondent had been examined by a number of doctors but upon the trial no medical witnesses were called. Dr. Tull had examined respondent at his request and made a written report. During the trial, mention was made of this report and respondent’s counsel stated that he would have no objection to petitioner’s introducing said report in evidence. As Dr. Tull was respondent’s doctor, this offer has some suggestion of an attempt to “out fair” an opponent before a jury. Before accepting this offer, petitioner inquired if Dr. Tull would appear as a witness and upon receiving an equivocal answer said he would wait and see if the doctor was produced as a witness.

Upon the argument of the case, respondent’s attorney referred to Dr. Tull’s report which, to use his words, petitioner’s attorney “didn’t want you to see and didn’t offer,” whereupon petitioner’s attorney interrupted and said that if respondent’s attorney wanted the jury to have the reports of Dr. Tull, Dr. Knight and Dr. Hunter, it would be satisfactory with him. (Dr. Knight and Dr. Hunter had apparently prepared reports for the insurance carrier.) Thereupon the following colloquy occurred:

Respondent’s attorney: “Could we stipulate that they carry them to the jury room to read them, your Honor? ”
Petitioner’s attorney: “As far as I am concerned they can read what Dr. Tull said, if they can also read what Dr. Knight said and what Dr. Hunter said.”
Respondent’s attorney: “Certainly we have no objection.”

Respondent’s counsel remarked that petitioner’s counsel was “making an unusual procedure in not allowing me the right to cross examine the doctors,” and afterwards objected to the conduct of petitioner’s counsel and requested the court “to recall the jury and instruct them they may not consider for any purpose the evidence admitted after the close of the testimony and the close of the case in chief by both Plaintiff and Defendant.” The court overruled this motion.

The occurrences which took place during oral argument were undoubtedly irregular. Whether they constituted error or not, we need not decide, for such error, if any, was clearly invited.

The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.

      . The plaintiff also made the following request of the trial court which was refused :
      “Comes now plaintiff and requests in due form and manner the Court to submit to the jury the following special issue [definition]:
      “By the term ‘total loss of use,’ as used in this charge, is meant that whenever by reason of injury a member no longer possesses any substantial utility as a member of the body, or the condition of the injured member is such that the workman cannot procure and retain employment requiring the use of the member.”
      This suggestion was in effect a second request to submit the Seabolt definition.

      . Article 2185, R.S.1925, which relates to objections to the court’s charge as does Rule 274.


text:
    HARDWARE DEALERS MUTUAL INSURANCE CO., Petitioner, v. Clifford L. BERGLUND and Robbie Mae Berglund, husband and wife, Respondents.
    No. A-10418.
    Supreme Court of Texas.
    June 23, 1965.
    Rehearing Denied July 21, 1965.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Charles D. Boston, Newton Gresham, with above firm, Houston, for petitioner.
    Miller & Gann, Austin Y. Bryan, Jr., Houston, for respondents.
   NORVELL, Justice.

This is a Hurricane Carla case. Petitioner, Hardware Dealers Mutual Insurance Company, issued two insurance policies to respondents, Clifford L. Berglund and his wife, Robbie Mae Berglund; one contained both an “all risks” clause and a “named peril clause,” while the second policy contained a “named peril” clause only. The “named peril” clause covered direct losses by “windstorm, hurricane, hail,” etc. On September 11, 1961, as a result of the storms, high winds and waters accompanying the hurricane, much of respondents’ property was destroyed. Suit was brought upon the policies mentioned and after trial to a jury, respondents were awarded a recovery for $1,820.00 which represented the only items of damage which were not related to the excluded hazards named in the policies. This judgment was reversed by the Court of Civil Appeals and the case remanded for another trial. 381 S.W.2d 631. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

The paramount question before us relates to the construction of the contracts between the parties. However, there is one procedural matter raised which we think is Settled by cases decided prior to 1941 and the provisions of Rule 94, Texas Rules of Civil Procedure. The insurance company pleaded that the damage sustained by respondents was not covered by the policies because the causes of such damage were expressly excluded from the insurance coverage of the contracts.

One of the policies contains an “all risks” coverage clause relating to a beach house located in the Bayou Vista Addition to Hitchcock, Texas. Respondents cite Jewelers Mutual Insurance Company v. Balogh, 272 F.2d 889 (5th Cir.1959) and argue that it is authority for the proposition that when a recovery is sought under an “all risks” policy, and the plaintiff proves that property described in the policy has been lost or damaged, the burden shifts to the insurer to show that the loss arose from a cause which is excluded from the policy coverage. In other words, when an “all risks” policy is sued upon, the plea of loss by an excluded risk is treated as being similar to a plea of confession and avoidance. There is logic in this position and Balogh does not stand alone in support thereof. Annotation, “All Risks” Insurance—Coverage, 88 A.L.R.2d 1122, 1. c., § 6, Burden of Proof, p. 1129. However, Balogh was a Florida case tried in the federal court and our Rules of Civil Procedure preclude a shift of burden of proof from the insured to an insurer even though an “all risks” policy is involved.

In Pelican Ins. Co. v. Troy Co-op. Ass’n, 77 Tex. 225, 13 S.W. 980 (1890) it was held that the party suing upon an insurance policy has the burden of proving that the insurance policy covered the loss and hence it was incumbent upon him to prove that the loss was not excluded from the insurance coverage. This Court said:

“The provisions of the policy above noticed are exceptions to the general liability assumed by appellant [the insurer], and the petition should have averred that the fire did not occur from one of the excepted causes. This was necessary to show a cause of action * *

The use of an “all risks” clause in stating the “general liability” of the company calls for no change of the rule set forth. If it be necessary for a plaintiff to aver that the loss did not occur from one of the excepted causes, in order to state a cause of action, it would be necessary for him to prove the same in order to recover.

The rule of the Pelican case insofar as pleading is concerned was modified in 1941 by the adoption of Rule 94 as a part of the Texas Rules of Civil Procedure. The rule provides that when a suit is brought upon a policy “which insures against certain general hazards, but contains other provisions limiting such general liability, the party suing on such contract shall never be required to allege that the loss was not due to a risk or cause coming within any of the exceptions specified in the contract, nor shall the insurer be allowed to raise such issue unless it shall specifically allege that the loss was due to a risk or cause coming within a particular exception to the general liability; provided that nothing herein shall he construed to change the burden of proof on such issue as it now exists.” (Italics supplied)

Here the insurance company pleaded specific exclusions which were set forth in the policy and thus raised issues of contract coverage. The burden of producing evidence to demonstrate that their losses were not attributable to the pleaded excluded hazards rested upon respondents. Shaver v. National Title & Abstract Co., 361 S.W.2d 867 (Tex.Sup.1962); T. I. M. E., Inc. v. Maryland Casualty Co., 157 Tex. 121, 300 S.W.2d 68 (1957). See 8 Texas Bar Journal 36 (1945). As the matter is specifically covered by Texas decisions and our Rules of Civil Procedure, cases based upon the practice rules of other jurisdictions have little or no application here.

One of the policies sued upon covers a beach house and certain unscheduled personal property. Insofar as the beach house was concerned, the contract insured Mr. and Mrs. Berglund against loss from “all risks of physical loss except as otherwise excluded.”

This policy also covered certain unscheduled personal property and insured Mr. and Mrs. Berglund against loss from certain named perils, including among others, “Windstorm, Hurricane and Hail.”

A second policy covered a boathouse and under the heading, “Extended Coverage,” insured Mr. and Mrs. Berglund against loss from, “Windstorm, Hurricane, Hail, Explosion, Riot, Civil Commotion, Smoke, Aircraft and Land Vehicles.”

The first policy contains the following exclusion (which was pleaded by the company) viz.:

“D. Loss caused by or resulting from: “(1) Flood, surface water, waves, tidal water or tidal wave, overflow of streams or of other bodies of water, or spray from any of the foregoing, all whether driven by wind or not; * * *.”

The second policy contains a similar exclusion (which was pleaded by the company) viz.:

“Unless specifically named herein, this Company shall not be liable for loss * * * caused by * * * tidal wave, high water, or overflow, whether driven by wind or not; * *

The parties stipulated that: “The amount of damage to the dwelling [the beach house] in question was $6,000 and the applicable amount of deductible is $100. The amount of damage to the contents in question was $2,400. The amount of damage to the boathouse in question was $450 and the amount of deductible is $100.”

The trial court submitted the case to the jury upon issues inquiring as to the percentage of loss relating to each item which was occasioned by specifically excluded perils. As to the percentage of damage which was caused by or resulted from “flood, surface water, waves, tidal water or tidal wave, or spray from the foregoing, whether driven by wind or not,” the jury found 70 per cent as to the beach house, 95 per cent as to the unscheduled personal property and 100 per cent as to the boathouse. Judgment wass accordingly rendered for 30 per cent of $6,000, less $100, plus $120, making a total of $1,820.00.

The general theory of submission employed by the trial court is supported by Coyle v. Palatine Insurance Company, Tex.Com.App., 222 S.W. 973 (1920) in which the judgment recommended by the Commission of Appeals was adopted by the Supreme Court in an opinion written by Chief Justice Phillips setting' forth the Supreme Court’s views with reference to the case. It appeared that a building situated in Galveston, Texas, owned by B. A. Coyle and J. H. Langbehn and insured by Palatine Insurance Company was damaged by a coastal storm which was attended by high winds and wind-driven water. The policy insured against damage by “tornado, windstorm or cyclone,” but expressly excluded loss “ ‘occasioned directly or indirectly by or through any * * * tidal wave * * * high water, overflow, or cloudburst; ’ * * * whether driven by wind or not * * The company admitted liability for the damage caused solely by the wind. The parties stipulated that the remainder of the damage was caused by the combined action of wind and water and that the extent to which each was a factor could not be determined from the evidence. In approving the judgment for the insurance company recommended by the Commission, Chief Justice Phillips, speaking for the Supreme Court, said:

“It may be admitted, as the plaintiffs in error urge, that the wind was the cause of the action of the water. But, as related to the loss in dispute, the contract expressly provided that the insurer was not to be responsible for any damage, whatever, due to the action of water caused by the wind. All part of the loss caused by water, though the water’s action was due to the wind, is thus eliminated. Therefore, the rule invoked, that where there is no order of succession in time and there are two concurrent causes of a loss in which the damage done by each cannot be distinguished, the predominating cause will be deemed the proximate cause; can have no application. The water as a concurrent cause, or as any element in the cause, which produced the loss, is by the contract put out of the case.”

The opinion of the Commission of Appeals refers to Newark Trust Company v. Agricultural Insurance Company, 237 F. 788 (3rd Cir. 1916). This was a case involving a hurricane loss and an insurance policy which expressly mentions “hurricanes.” The policy insured against “all direct loss or damage by windstorms, tornadoes, cyclones, or hurricanes, except as hereinafter provided.” The policy contained an exception which provided that the company “shall not be liable for any loss or damage caused by water or rain, whether driven by wind or not * * The court affirmed a judgment in favor of the insurer, and after stating that the insuring and exclusionary clauses were unambiguous (and not conflicting) the Circuit Court of Appeals said:

“[I]t is manifest from the terms of the contract, as well as from the enumerated elements, that the perils insured against are the perils of the air, and among those expressly excepted are perils of water; and that after disclaiming liability for damage caused by such specific water forces as tidal wave, high water, overflow and cloudburst, the insurance company broadly refuses to assume liability for any loss or damage caused generally by water, even when ‘driven by wind.’ * * * We are of opinion that this clause dispenses with the consideration of the question of proximate cause as raised in this case * *

The respondents contend that the Coyle case is distinguishable from the case now before us because of a difference in wording contained in the policy involved in Coyle and the wording of the contracts now before us. We have heretofore set out the wording of the insuring and excluding clauses of such policies. The “named peril” insuring clauses expressly cover direct losses resulting from “windstorm, hurricane, hail” etc. As direct losses from hurricanes are not in so many words excluded from the “all risks” clause contained in the policy covering the beach house, such losses are within the comprehension of the “all risks” provision, subject to the exclusion clauses of the contract. In Coyle there was no reference to losses by “hurricane” and the exception to the coverage employed the words, “directly or indirectly.” Respondents describe such policy as an “inland windstorm” policy and seek to distinguish it from policies of the type now before us. Their theory of contract construction and theory of recovery is well illustrated by the special issue submission requested by them, viz.:

“Do you find from a preponderance of the evidence that Hurricane Carla was the proximate cause of the damage to the dwelling house of Clifford L. Berglund and wife, Robbie Mae Berg-lund?”

Definitions of proximate cause and new and independent cause were likewise requested. The proximate cause instruction requested was as follows:

“You are instructed that the term ‘proximate cause,’ as used in this charge means the actual and dominant cause which sets in motion a series of events and which, unbroken by any new and independent cause, produces an event without which the event would not have occurred.”

It is apparent that the insurance coverage of the contract would be substantially broadened if respondents’ theory of construction be accepted. In essence it would mean that all hurricane damage, whether caused by wind or water, or by a combination of both would be covered by the policies provided a hurricane is the dominant or proximate cause of the destruction or loss of the property described in the insurance policy; whereas, under the theory adopted by the trial court the insurance coverage would extend to wind damage unmixed with water damage occasioned by the hurricane. Cf. McDonald v. New York Central Mutual Fire Ins. Co., 380 S.W.2d 545 (Tex.Sup.1964).

In support of their position, respondents assert that a West Indian or Gulf Hurricane is a phenomenon in which high winds are invariably accompanied by heavy rains and high water; that the insuring clauses of the policies purport to cover hurricane damage, and that an interpretation of the water exclusion clause so as to exclude water damage caused by a hurricane would create an ambiguity and invoke the rule that insurance contracts should in cases of doubt or ambiguity be construed favorably to the insured. This is the argument that was accepted by the Court of Civil Appeals and while it is persuasive, there are considerations which compel its rejection.

From an underwriting standpoint, there is a vast difference between insuring against loss by hurricane winds only and insuring against loss by a combination of hurricane winds and waters. From a standpoint of verbiage, there is little difference between the wording of the exclusion clause before us now and that which this Court construed in Coyle. In the Coyle policy the word “hurricane” does not appear. The insuring clause mentioned “damage by tornado, windstorm or cyclone.” The “named peril” clauses here involved mention direct loss from “windstorm, hurricane,” etc. As loss from hurricane is not expressly excluded as such by the “all risks” clause, we may say that loss from hurricane is within the insuring clause of such policy. As illustrative of the problem, we may consider this question: Can it reasonably be said from the wording of contracts which contain water exclusion clauses, that a policy covering loss by windstorm does not cover loss from high water, or overflow, whether driven by wind or not, while a policy covering loss from hurricane does cover loss from high water or overflow when a hurricane is the dominant cause of such high water or overflow?

In Mitchell’s Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775 (1957), it was asserted that an indemnity contract should he construed favorably to the indemnitor. This Court said:

“In determining the rights and liabilities of the parties, therefore, their intention will first be ascertained by rules of construction applicable to contracts generally. At this point neither party is favored over the other simply because their agreement is one of indemnity.”

We believe the rule stated is applicable here. No ambiguity or uncertainty arises from the words used in the contract. In order to say that water damage accompanying a hurricane is not excepted from the policy it would be necessary to give the words of the exception — high water and overflow, etc. — a different meaning when used with an insuring clause covering losses from “tornado, windstorm, and cyclone” than they would have when used with an “all risks” type of insuring clause or one covering losses from “windstorms, hurricane, hail,” etc. In our opinion this cannot be accomplished unless we refuse to give to words their ordinary accepted meaning and disregard the interpretation of phrases in standard insurance use which have been considered in prior opinions of this Court. The language used in the policies “must be construed according to the evident intent of the parties, to be derived from the words used, the subject-matter to which they relate, and the matters naturally or usually incident thereto,” and it is only when “the words admit of two constructions, that one will be adopted most favorable to the insured.” Brown v. Palatine Insurance Company, 89 Tex. 590, 35 S.W. 1060 (1896). See 13 Tex.Jur.2d 287, Contracts, § 122.

The exclusion clauses involved in this suit have been used as a part of property insurance policies for many years. The clause was involved in the case of Newark Trust Company v. Agricultural Insurance Co., 237 F. 788 (3rd Cir.) decided in 1916 and heretofore referred to. That case specifically mentioned loss or damage by hurricanes and was cited with approval by the Commission of Appeals in Coyle v. Palatine Insurance Company, 222 S.W. 973 (1920). Since the decision in the Coyle case, the construction of the exclusionary clause must be regarded as settled in Texas. Cf. Newman v. Great American Insurance Company, 86 N.J.Super. 391, 207 A.2d 167 (1964); Brindley v. Firemen’s Insurance Co. of Newark, 35 N.J.Super. 1, 113 A.2d 53 (1955). The risk assumed by a policy construed under the rules of the Coyle case is vastly different from that of a policy which would insure against all damage proximately caused by a hurricane. The feasibility of providing a broad coverage “hurricane” policy for a fifty or hundred mile coastal strip, considering the necessary premium charges therefor, may present a question for the industry and the regulatory authorities, cf. United States Insurance Company of Waco, Texas v. Boyer, 153 Tex. 415, 269 S.W.2d 340 (1954), but it is our duty to construe and enforce contracts and not to make them.

Cases in which an insurer has been held liable for a loss proximately caused by a peril insured against, although a hazard not covered by the policy was also involved, are not apposite here. See Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379 (1951); Farmers Ins. Exch’g v. Wallace, 275 S.W.2d 864 (Tex.Civ.App.1955, wr. ref. n. r. e.). These cases and those similar thereto incidentally involved risks for which no coverage had been purchased. They are not express exclusion cases such as Coyle v. Palatine Insurance Company, 222 S.W. 973, supra.

For the reasons hereinabove set forth the judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.

ON MOTION FOR REHEARING

The motion for rehearing is not cast in the mold which is most familiar to us, in that respondents complain because we have followed precedent rather than disregarded it. With vigor and ability it is again asserted that Coyle v. Palatine Insurance Company, Tex.Com.App., 222 S.W. 973, is a voice from the “mauve period in the history of the United States,” and is a mistaken one at that. We are reminded of the words of Lord Atkin in the House of Lords case of United Australia, Ltd., v. Barkclay Bank, Ltd., [1941], A.C. 1; [1940] 4 All E.R. 20:

“When these Ghosts of the past stand in the path of justice clanking their medieval chains, the proper course for the Judge is to pass through them undeterred. We act in the finest common law tradition when we adopt and alter decisions of law to produce common sense justice.”

However, when problems of contractual clauses are involved, precedent is necessarily a highly important factor. Contracting parties generally select a judicially construed clause with the intention of adopting the meaning which the courts have given to it. For the reasons stated in our original opinion, we decline to overrule Coyle v. Palatine.

In deference to the motion it should be stated that we do not hold nor did we intend to infer that Rule 94 “binds this Court to freeze forever the burden of proof” relating to the exclusionary clauses of an insurance policy. By its express terms, the rule provides that it shall not “be construed to change the burden of proof on such issue as it now exists.” The rule relates to pleadings, but impliedly recognized that there was a doctrine extant in this State which controlled the burden of proof at the time the rule was adopted. The argument over the onus probandis relating to exceptions from the general liability assumed in an insurance policy is an old one and is not altered by the use of an “all risks” clause which is simply a statement of general liability in its broadest form. In Travelers’ Ins. Co. v. Harris, 212 S.W. 933 (Tex.Com.App.1919, holding approved by the Supreme Court) the problem was thoroughly considered with the citation of numerous authorities and it was said:

“ * * * Those courts which treat the contracts as being general, and the clauses declaring what they shall not cover as ‘stipulations added to the principal contract to avoid the promise of the insurer by way of defeasance or excuse,’ hold that these clauses are defensive, and must be pleaded and sustained by the insurer; while the courts which construe the exception clauses as ‘taking something out of the general portion of the contract, so that the promise is to perform only what remains after the part excepted is taken away,’ place the burden of pleading and proof upon the assured to negative them by showing that his cause of action does not come within the exception. (Here follows citation of authorities.)
“In view of the decisions by our Supreme Court, and the indication made in granting the writ in this case, we are of the opinion that the burden rests upon the plaintiff to show that her cause of action does not fall within the excepting clause.”

The questipn of the burden of proof has been settled by the holdings of this Court and must remain so until numerous prior decisions are overruled or otherwise abrogated. Rule 94 simply recognizes this circumstance.

Respondents’ motion for rehearing is overruled.