author: GRISSOM, Chief Justice.

text:
    PLAINS COTTON COOPERATIVE ASSOCIATION, Appellant, v. PANHANDLE MUTUAL HAIL ASSOCIATION, Appellee.
    No. 3978.
    Court of Civil Appeals of Texas. Eastland.
    March 26, 1965.
    Rehearing Denied April 16, 1965.

      J. R. Blumrosen, Lubbock, for appellant.
    Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellee.
   GRISSOM, Chief Justice.

Panhandle Mutual Hail Association sued Plains Cotton Cooperative Association for conversion of cotton, judgment was rendered for the Hail Association and the Cotton Cooperative has appealed.

To establish conversion of the cotton, appellee had to prove that it had a mortgage lien on the cotton and that appellant had constructive notice of the lien. It attempted to make such proof only by introduction of a certified copy of the chattel mortgage. Its introduction was timely and properly objected to because the certified copy of the mortgage had not been filed in the papers of the cause before announcing ready for trial. The court erred in overruling said objection and admitting the certified copy. Article 5493. Thomas W. Blake Lumber Company v. Guaranty State Bank, Tex.Civ.App., 290 S.W. 187; Safe Cabinet Company v. Southwestern Life Insurance Company, Tex.Civ.App., 16 S.W.2d 940.

The court overruled said objection and admitted the certified copy of the mortgage upon the theory, which appellee here insists is correct, that same was admissible under the provisions of Article 3731a. If same were otherwise admissible under Article 3731a, nevertheless, it was not admissible because section 3 of said article, which requires delivery of a copy thereof to the adverse party before the trial, was not complied with. The cases cited by appellee do not sustain its contention. The judgment is reversed and the cause is remanded.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Johnnie Lee ROSE, Appellee.
    No. 3955.
    Court of Civil Appeals of Texas. Eastland.
    March 26, 1965.
    Rehearing Denied April 16, 1965.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Splawn & Maner, Lubbock, for appellee.
   COLLINGS, Justice.

Johnnie Lee Rose brought this suit against Travelers Insurance Company. Plaintiff sought to recover benefits under the Workmen’s Compensation Act for an injury incurred on March 24, 1963, while he was working as a roughneck in the oil fields as an employee of the F W A Drilling Company. Based upon answers of the jury, judgment was rendered for plaintiff for total temporary incapacity for a period of two hundred and eighty weeks. The Travelers Insurance Company has appealed.

In its first two points appellant contends that the court erred in admitting the testimony of Doyle Price that in his opinion ap-pellee could not obtain and retain employment in the oil fields and testimony by Archie Wellborn that in his opinion appel-lee could not obtain and retain employment at the usual tasks of a workman. Appellant contends that such testimony invaded the province of the jury and that there was no showing that either of said witnesses was qualified to express such an opinion. These points are not well taken. The evidence shows that appellee Rose had been an oil field roughneck for a period of about 14 years prior to the time of his injury, working on all jobs around the derrick except as a driller and that he had never suffered any injury prior to the one here involved. The witness Doyle Price testified that he was an oil field driller and had worked with appellee as a roughneck from about the middle of 1951 to 1953; that appellee was an industrious worker and had never had any trouble with his back during the time they worked together; that he had had occasion to observe appellee since his injury on May 24, 1963, and observed that he doesn’t get around as well as he used to. Price admitted that he did not know how much money appellee had earned or how many days he had worked since the time of his injury, but testified that based upon his 13 years experience as an oil field worker and his observation of appellee before and after his injury it was his opinion that appellee would not be able to “hold a roughnecking job anymore.” The witness Wellborn testified that he had known appellee for about fourteen years and had at times during that period been an employer of appellee; that he had an opportunity to observe appellee both before and after his injury; that ap-pellee was an unusually good worker prior to his injury, but that since his injury he doesn’t get around anything like he used to; that he had observed appellee at a ball game in which his son was a participant and that appellee couldn’t sit through the whole game but had to be taken home by his wife ; that based upon his observation of appellee and experience with work in the oil field it was his opinion that appellee could not obtain and hold a job doing manual labor.

It is well settled that a witness, even though not a medical expert, may be competent to express an opinion concerning the physical condition of himself or another. 23 Texas Jurisprudence 2d, Evidence, Section 494. In Sterrett v. East Texas Motor Freight Lines, 150 Tex. 12, 236 S.W.2d 776, it was stated by our Supreme Court as follows:

“We agree with the ruling of the Court of Civil Appeals that the trial court did not err in admitting the testimony of the shop foreman and of the maintenance superintendent of petitioner’s employer that, having observed petitioner and his apparent physical condition after his injury, they could not have used him in work under their supervision had he come seeking employment as a new employee.”

Appellant contends that although it is permissible for a witness to express an opinion concerning his physical condition or that of another it is not permissible for a lay witness to testify that an injured person is unable to procure and retain employment at a certain type of work or at the usual tasks of a workman. We cannot agree with this contention where, as in the instant case, the witness has knowledge of the condition of the injured party and is experienced in the business or type of work involved and knows the physical requirements of the. work. Appellant’s 1st and 2nd points are overruled.

In other points appellant contends that the inclusion of the requirement that appellee must “regularly” earn amounts in order to have an average weekly wage earning capacity in the court’s definition of “average weekly wage earning capacity” constituted reversible error. The instruction and definition was given in connection with special issue number 12. That issue inquired concerning the difference between appellee’s average wages before his injury and his average weekly wage earning capacity during the existence of his partial incapacity, if any. The issue was submitted conditionally with the instruction that it was to be answered only in the event that the jury found in answer to special issue number 8 that appellee had or would sustain partial incapacity as a natural result of his injury. The jury answered special issue number 8 in the negative and, therefore, in compliance with the court’s instruction, did not answer special issue number 12. Since special issue number 12 was not answered by the jury and was not required to be answered the facts inquired about therein formed no basis for the judgment entered and any error in the definition of the term “average weekly wage earning capacity” did not constitute reversible error. Appellant’s third and fourth points are overruled.

In appellant’s fifth point it is contended that it was reversible error for the court to refuse to grant a new trial because counsel for appellee in the presence of the jury accused appellant’s witness Doctor Smith of character assassination of appellee’s counsel after the doctor testified why he did not send appellee’s attorney a medical report. Appellant contends that the statement or comment by appellee’s attorney was unjustified, inflammatory and highly prejudicial, and that the court erred in not granting appellant a new trial.

The record shows that appellant’s medical witness Dr. Richard D. Smith testified on cross examination that he had failed to send appellee’s counsel certain medical reports although furnished with proper authorization from appellee. Doctor Smith was not then asked why the report was not sent and although he indicated a desire to explain why the report was not sent to appellee’s counsel such counsel in effect refused to permit the witness to explain such failure. On redirect examination counsel for appellant asked the doctor to explain why the report was not sent and the doctor stated that such failure was on account of appellee’s attorney’s firm not having paid a past due bill owed to the witness’ clinic. The witness finally admitted, however, that the dispute grew out of a prior case and had nothing to do with the case on trial. The trial court thereupon sustained appellee’s objection to such testimony and the jury was instructed not to consider it. Appellee’s counsel in objecting to the statement of the doctor concerning the nonpayment of a past due bill stated that he was “not going to put up with that type of character assassination.” Counsel for appellant objected, stating as follows: “We object to that statement. It is improper. The doctor was asked and assassinated first about not having sent a report.”

From the above it is apparent that the hassle between the attorneys and appellant’s witness Dr. Smith did not involve a matter which had any bearing on any issue in the case. The trial court so held stating “It is not in the law suit.” The language “assassination” or “assassinated” was used by both attorneys. In our opinion no reversible error is shown. We are of the opinion that the error complained of, if any, did not amount to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Appellant’s point number five is overruled.

The judgment is affirmed.


author: DAVIS, Justice.

text:
    GREAT AMERICAN RESERVE INSURANCE COMPANY, Appellant, v. Kathleen E. BRITTON, Appellee.
    No. 7622.
    Court of Civil Appeals of Texas. Texarkana.
    March 23, 1965.
    Rehearing Denied April 13, 1965.

      Roger A. Hansen, Brundidge, Fountain, Elliott & Churchill, Dallas, for appellant.
    Howard S. Smith, Sulphur Springs, Woodrow Edwards, Mt. Vernon, for ap-pellee.
   DAVIS, Justice.

Plaintiff-appellant, Great American Reserve Insurance Company, sued defendant-appellee, Kathleen E. Britton, a widow, the beneficiary in a decreasing term life insurance policy on the life of her husband, Paul E. Britton, seeking to have the policy declared void because of the good health provisions in the policy on the ground that the insured had fraudulently given false answers to the questions in the application for the insurance policy. Appellee answered and filed a counterclaim upon the policy, sought recovery thereunder, and also sought the statutory penalty and attorneys’ fees.

Trial was to a jury which answered all the special issues in favor of the appellee on her counterclaim. Judgment was entered for the discounted principal amount of the policy, penalty and attorneys’ fees. Appellant has perfected its appeal and brings forward 9 points of error.

History

On September 5, 1961, about 7:00 P. M., Richard Carpenter, an agent of appellant, went to the home of Paul D. Britton and wife, Kathleen Britton, for the purpose of selling to Paul D. Britton a decreasing term life insurance policy. According to the evidence, and the jury findings, they were all seated at the dining table in the dining room of their home. After a brief discussion, agent Carpenter produced an application for insurance and asked the insured, Paul D. Britton, the questions that were listed on the application. In reply to the first question, Britton told Carpenter that he had had some gas pains in his upper abdomen, in his chest, and pains in his arms. When Carpenter asked Britton about his high or low blood pressure or disease of heart or circulatory system, the insured told Carpenter that he had been having some gas pains in his chest and pains in his arms, and that he had been to see Dr. Lester Hodges in Sulphur Springs, and Dr. John S. Bagwell in Dallas, Texas. Carpenter wrote the name and address of Dr. Hodges on the application. Carpenter also listed the date of birth, the height and weight of Britton, along with his occupation as butcher in Brookshire Food Store in Sulphur Springs, Texas. Carpenter also listed the name of the appellee as the wife of Britton, her age as being 39, and showed her to be in good health; although appellee had had an operation on her leg about two years prior thereto and was still unable to return to work as a nurse.

In answer to the special issues submitted, the jury found that the insured was in good health on the date of the application and on the date of the delivery of the policy. The jury also found that the insured did not answer “Yes” to the question, “So far as you know and believe are you in good health and free from impairment?” The evidence shows that Carpenter disregarded the answer that Britton gave, and wrote the answer “Yes”, without the knowledge or consent of Britton. The jury also found that Britton did not answer “No” to the question in the application, “So far as you know and believe do you now have or have you had high or low blood pressure of the heart or circulatory system?” The jury further found that Britton did not answer “No” to the question, “Have you ever consulted or been treated by any physician or practitioner in the last five years? Give names, address and details in the application.” As above stated, Britton told Carpenter about the gas pains in his chest and pains in his arms; and gave the names of the two doctors.

After the application was filled out by Carpenter, he made a checkmark on a line at the bottom of the application and handed it to Britton for his signature. Britton signed the application without reading any part of it. After Britton had signed the application, he asked Carpenter: “What doctor do you want me examined by?” Carpenter told the insured that for a policy of that size the Company did not require an examination by a doctor.

Appellant offered in evidence the written deposition of Dr. Bagwell, of Dallas, Texas. It showed that Dr. Bagwell made an examination of Britton on May 1, 1959. The deposition showed the examination consisted of a complete physical examination with special emphasis to the heart, lungs and abdominal region. A physical examination did not show any definite abnormality. Blood pressure was normal and x-rays of the heart and lungs were considered to be normal. The features in the electrocardiogram were considered to be probably abnormal. Dr. Bagwell did not see Britton but the one time. Dr. Bagwell gave him two prescriptions: one, for nitroglycerin pills, to be dissolved under the tongue for pains in the chest; and, one for penite pills, to be taken one after each meal and one at bedtime. Thereis no evidence in the record that Britton ever took any of the pills as prescribed by Dr. Bag-well. According to other evidence in the case, Dr. Bagwell advised Britton and his wife, appellee, that the cardiogram only showed a slight irregularity, and that if Britton had any kind of heart trouble it was angina, which was the best kind of heart trouble to have, because it would result in pain at times, which was a warning for him to stop whatever he was doing at the time.

The appellant then offered Dr. Lester Hodges as a witness, and when asked if he knew Britton had heart trouble or a heart condition, he testified as follows:

“Q. * * * As a matter of fact, was there ever an occasion when you saw him professionally, I’m speaking about, that you were of the opinion he had any heart trouble or heart condition?
“A. When I saw Mr. Britton he was always asystematic.
“Q. Meaning what?
“A. Meaning that he was not having any difficulty at all when I saw him; * * * but he was not having any difficulty at any time that I saw him.
“Q. All right, sir. Now, then, in answer to my question, was ever a time at any time you saw him when you felt he had heart trouble?
“A. No, * *

Dr. Hodges testified that he did not send Britton to see Dr. Bagwell. He further testified that, in his opinion, he was in good health on September 5, 1961, the date of the application, and on September 13, 1961, the date of the delivery of the policy.

The appellee testified that she and Brit-ton were married in 1954. That he was working as a butcher. The work involved lifting heavy quarters of beef that would weigh as much as 150 lbs. (David Daniel, store manager, and Gambrell Lloyd, market manager, Brookshire Food Store in Sulphur Springs, gave direct testimony of these facts. T. D. Parkins and John Sheffield also testified that Britton was the butcher at Brookshires, and that he was a diligent worker and never complained). Appellee testified that before the insurance policy was written on her husband she had had an operation and was still not able to return to work. She testified concerning the facts about taking the application for the insurance policy, that she was present at all times and heard everything that was said between Britton and Carpenter. She further testified that her husband had previously been complaining with gas pains in his chest and pains in his arms, that she took him to see Dr. Bagwell because she knew him while she was working as a nurse and had, on occasions, nursed some of his patients. She testified that Dr. Hodges did not send her husband to see Dr. Bagwell. She testified that Dr. Bagwell told them, in effect, that her husband was all right ex-eept the cardiogram showed a slight abnormality; that “if” he had heart trouble it would he the best kind, because it would give the warning for him to know when to slow down. Dr. Bagwell did not tell them that he had a heart condition, and did not advise Britton to return at a future date. Dr. Bagwell gave them two prescriptions. They took them and came back to Sulphur Springs, and Britton went right back to work as a butcher in Brookshire Food Store. Dr. Bagwell did not advise them that Britton should be at all restricted in his working activities.

Britton did not lose any time from his work after September 5, 1961, until May 15, 1962. On that date Dr. Hodges sent him to see Dr. C. D. McMillan in Paris, Texas, because he was having difficulty with his stomach; a burning symptom that indicated an ulcer. Britton was entered in St. Joseph Hospital, Parish, Texas, on May 15, where he remained until May 18, 1962.

According to the deposition of Sister Mary of Jesus offered by appellant, the case history of Dr. McMillan revealed that his physical examination failed to show any significant abnormality. He appeared healthy, but quite worried and distressed. Routine blood count and urinalysis were normal at the time of his admission, but a sedimentation rate was 18 millimeters per hour. An electrocardiogram was made that revealed changes consistent with left ventricular hypertrophy. A Masters two-step was done that showed positive changes indicative of coronary sclerosis. X-rays of the upper gastrointestinal tract revealed gastritis and duodenitis with a duodenal ulcer of recent origin. At the time Brit-ton was released from the hospital he was advised as to the findings, except for de-emphasis ' of his coronary condition. He was given a prescription for Donnatal to be taken ac and hs, and Delusil to he taken every two hours between meals while awake. He was given a prescription for long acting Peritrate, to be taken twice daily. It seems that the coronary insufficiency being de-emphasized, that the Doctor and the Hospital actually kept this information away from Britton and his wife, the appellee.

There was no showing by Dr. McMillan, the hospital record, or the nurse as to the date of the onset of the coronary insufficiency. As soon as Britton was discharged from the hospital he returned to Sulphur Springs and assumed his job as a butcher in Brookshire Food Store.

There was other lay testimony as to the good health of the appellee as of September 5, 1961, by Lloyd, Parkins, Sheffield and Daniel. Lloyd, market manager of Brookshire Food Store, said he had been employed by the Brookshire Food Store for a little more than four years. He testified that he had been acquainted with Britton during his lifetime, that he worked as a butcher for the Brookshire Food Store, he was an excellent worker, never complained. Lloyd said that Britton was his assistant, had full charge of what they called the backroom, his actual duties consisting of labor in handling quarters of beef, cutting up meat, roast and steaks, and anything that there was to do in a meat market. That it was necessary for Britton to lift and carry heavy objects. That Britton was small of stature; that he came to work early and worked about twelve hours a day, from 5 to 5}4 days per week; that Britton never did lose any time from his work except the three days he spent in the Paris Hospital, that he was always a diligent worker, and that he never heard him complain, and that, in his opinion, he was in good health on September 5, 1961. Daniel, the store manager for Brookshire, testified to the same facts, as well as did Parkins and Sheffield. The appellee testified that she, being a nurse, never had any suspicion whatever that her husband ever had any heart trouble, that it had never crossed her mind.

In view of the importance of this decision it seems necessary to give the full history of the case and write a lengthy opinion.

Under the Texas Statutes an insurance company may issue an insurance policy without a medical examination. In this case Britton offered to he examined. In some states, where such policies can be so issued and the applicant for insurance offers to be examined, the insurance company waives a condition requiring good health. 1 Couch on Insurance, 2d Ed., p. 500, Sec. 1124; Polite v. National Accident & Life Ins. Co., 9 La.App. 83, 118 So. 846; Oglesby v. Life Ins. Co. of Virginia, 12 La.App. 311, 124 So. 551.

By its 1st, 2nd and 3rd points, appellant says the trial court erred in overruling its motion for instructed verdict on the ground that the uncontroverted probative evidence shows that the policy in question, by its terms, did not come into effect because Brit-ton was not in good health at the time of the execution of the application and delivery of the policy; in overruling applicant’s motion for new trial based on the complaint of the jury that Britton was in good health on the date of the application, and delivery of the policy was so against the great weight and preponderance of the testimony as to be manifestly unjust; and, in admitting lay testimony as to the good health of the insured over the objections that the witness was not qualified to express an opinion where there was a serious disease shown concerning which such witness would not be expected to have any knowledge or training. The facts in this case actually created an issue of fact as to the good health, or insurable health, of Britton at the time of the making of the application and the delivery of the policy.

Agent Carpenter testified that Britton looked to be in good health at the timé he took the application and delivered the policy. According to all the evidence, Brit-ton did not know that he had heart trouble at the time he made application and at no time prior to his death. The other lay witnesses testified as to Britton’s physical appearance. They gave testimony that he looked to be healthy, did heavy work, and at no time did he complain. This testimony coupled with the testimony that was given by Dr. Hodges that Britton did not have heart trouble. The lay witnesses’ testimony was admissible to show that Britton looked to be in good health at such time. As we view the record, the agent wrote the answers to the application wrong, and not in response to the answers that were given him by Britton when the agent asked the questions. The agent had the privilege at the time of taking the application to follow up the information given to him; or, he could have forced him to be examined. Under Art. 3.44, V.A.T.S. Insurance Code, formerly Art. 4732, there are many cases that hold that in cases like this there is an issue of fact created. Terry et ux. v. Texas Prudential Ins. Co., Tex.Civ.App., 77 S.W.2d 761, N.W.H; Universal Life & Accident Insurance Company v. Murphy, Tex.Civ.App., 368 S.W.2d 878, N.W.H. In the Murphy case the court said:

“In order to avoid a policy of insurance because of misrepresentation, the burden is on the insurer to plead and prove, not only that the answers made by the insured were false or untrue, but that the insured knew, or should have known, that they were untrue, and that he made them wilfully and with the intention of inducing the insurer to issue him a policy. Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820; American Central Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864; Doyle v. Great Southern Life Ins. Co., Tex.Civ.App., 126 S.W.2d 735, affirmed 136 Tex. 377, 151 S.W.2d 197; General American Life Ins. Co. v. Martinez, Tex.Civ.App., 149 S.W.2d 637; American Nat. Ins. Co. v. Green, Tex.Civ.App., 96 S.W.2d 727; Provident Life & Accident Ins. Co. of Chattanooga v. Flowers, Tex.Civ.App., 91 S.W.2d 847; 46 CJ.S. Insurance § 1319, pp. 435-437; Krayer v. Prudential Ins. Co. of America, Tex.Civ.App., 360 S.W.2d 844, reversed on other grounds, Tex., 366 S.W.2d 779; Golden State Mutual Life Ins. Co. v. Pruitt, Tex.Civ.App., 357 S.W.2d 812; Pioneer American Ins. Co. v. Meeker, Tex.Civ.App., 300 S.W2d 212.”

See, also, Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943; Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820; American Nat. Ins. Co. v. Ferguson, Tex.Civ.App., 209 S.W.2d 797, W.R., N.R.E.; Universal Life & Accident Ins. Co. v. Barron, Tex.Civ.App., 269 S.W.2d 467, W.R., N.R.E.; Texas Life Ins. Co. v. Hatch, Tex.Civ.App., 167 S.W.2d 802, W.R., W.O.M.; Legal Security Life Insurance Co. v. Harris, Tex.Civ.App., 359 S.W.2d 953, W.R., N.R.E.

There is conflicting evidence between the doctors as to whether or not Britton was in good health at the time of the application and delivery of the policy. Certainly, lay witnesses could not give scientific testimony as to the heart condition, but their testimony is very conclusive that he appeared to be in good health at the time of the application and delivery of the policy. In view of all the testimony in the case, the lay testimony constitutes some evidence of probative force supporting the jury findings that the insured was in good health at the time of taking the application and delivery of the policy. We must look to the record as a whole to determine whether or not the evidence shows, considered as a matter of law, that the insured was not in good health at the time of the application and delivery of the policy. We are bound by the holding of the Supreme Court to look at the evidence favorable to the verdict and jury findings that the insured was in good health at the time of the application and delivery of the policy. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

It seems that the 2nd point of error is not in keeping with Rules 320, 321 and 374, Texas Rules of Civil Procedure. Applicant did not give the trial court fair notice of its alleged error as being against the overwhelming preponderance of the evidence when the ground of error in the motion for new trial is directed only to the error of the trial court in overruling a certain paragraph in its motion for judgment N.O.V. Deal v. McLeroy, Tex.Civ.App., 346 S.W.2d 934, N.W.H.; Gulf, Colorado & Santa Fe Railway Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933; De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887. The points are overruled.

By its points 4, 5, 6, and 7, appellant says that the trial court erred in overruling appellant’s motion for judgment N.O.V. and motion for new trial in not setting aside the jury’s answer to Special Issue No. 3 where the jury found that Britton did not answer “yes” to the application question, “So far as you know and believe, are you in good health and free from impairment”, as being against the great weight and preponderance of the evidence as to be manifestly unjust; in overruling appellant’s motion for judgment N.O.V. in not setting aside the jury’s answer to Special Issue No. 3, where the appellee admitted in her pleadings that Britton had replied that he was in good health, and in overruling appellant’s motion for judgment N.O.V. and motion for new trial in not setting aside the jury’s answer to Special Issue No. 8, wherein the jury found that Britton did not answer “no” to the application question: “so far as you know and believe, do you now have, or have you. had high or low blood pressure or disease of heart or circulatory system,” insofar as such answer was so against the great weight and preponderance of the evidence as to be manifestly unjust; and in overruling appellant’s motion for judgment N.O.V. and motion for new trial in not setting aside the jury’s answer to Special Issue No. 13, where they found that Britton had not represented to appellant that, he had never consulted or been treated by any physician or practitioner in the past five years, insofar as such finding is so against the great weight and preponderance of the evidence as to be manifestly unjust.

From the history that has heretofore been given in the case, these points are without any merit. The insurer is charged with knowledge of the facts that create contracts that are made by its agents. 3 Couch on Insurance, 2d 710, Sec. 26:158; p. 712, Sec. 26:160, and the authorities cited therein. The points are overruled.

By its 8th point appellant says the trial court erred in awarding penalty and attorney’s fees to appellee where there was no evidence of demand being made upon the appellant for payment of policy proceeds. Agent Carpenter testified that the appellee had executed a proof of loss, and that he sent the executed proof of loss to the company about three or four days after the insured’s death. The death occurred on February 6, 1963. He further testified that the proof of loss was a request for payment of the insurance. Appellant offered in evidence portions of a deposition of the Assistant Vice President and Manager of the Claims Department, wherein he testified as follows:

“On April 4, 1963, Mrs. Britton was contacted personally in Sulphur Springs by one of our claim representatives to explain the company’s action, as to why this life policy could not have been issued to Mr. Britton if the full information about his medical history had been given on the application, but she refused to accept the refund of premium tendered to her at the time. On April 8, 1963, a letter was written to Mrs. Britton explaining this recision action and why the company could not be bound. A company check for refund of premium was enclosed with this letter. On April 10, 1963, our original letter and the company check for refund of premium were returned to us from Mrs. Britton. Her envelope was postmarked April 9,1963.”

Appellant on April 18, 1963, filed suit in the District Court seeking to void the policy. The appellee filed her counterclaim against the appellant on May 1, 1963s almost four months after the first claim and demand for payment of the insurance had been made. Actually there was no demand for payment “within 30 days from a specific date”. The 30 days’ time is governed by Art. 3.62 of the Insurance Code. The demand was actually made just a few days after the death of the insured. Payment was actually refused by the action of the company. There could be no more positive proof that they had refused to pay the same than filing the suit to void the policy under Art. 3.62 of the Insurance Code and the authorities cited thereunder. Everything that appellee was required to do had been done. The point is overruled.

By its 9th point, appellant says the trial court erred in granting the appel-lee an attorney’s fee because there was no evidence of what a reasonable attorney’s fee would be. Art. 3.62 of the Insurance Code reads as follows:

“In all cases where a loss occurs and the life insurance company, or accident insurance company, or life and accident, health and accident, or life, health and accident insurance company liable therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve (12%) per cent damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss. Such attorney fee shall be taxed as a part of the costs in the case. The Court in fixing such fees shall take into consideration all benefits to the insured incident to the prosecution of the suit, accrued and to accrue on account of such policy.”

There was no evidence offered to show what a reasonable attorney’s fee would be. In the case of American National Insurance Co. v. Points, Tex.Civ.App., 131 S.W.2d 983, error dism., judgment correct, was a suit for disability insurance and all controverted issues of fact were submitted to the jury. The trial court also submitted an issue as to the amount of a reasonable attorney fee. The court held that it was not necessary that such an issue be submitted, but that if the judge decided to submit such an issue the action would not be error. The court said:

“It is obvious, we think, that the court trying the case is authorised to fix the amount of the attorney’s fee and, in doing so, may take judicial knowledge of the entire record, the nature of the suit, the amount in controversy, the fact that the case is prosecuted by an attorney or attorneys, to be viewed in the light of the court’s knowledge and experience as a lawyer and judge, and, as the statute provides, shall take into consideration the benefits to the insured, incident to the prosecution of the suit, accrued and to accrue on account of the policy. However, we do not think it would be improper for the court to have before it the opinion of experts, or even to submit the question to a jury; but, in view of the quoted provision of the statute, we think it the exclusive province of the court to have the final say in fixing the amount of the attorney’s fee in all cases controlled by the statute in question, and that its action in so doing is subject to review only for an abuse of discretion.” (Emphasis added).

It seems to be the duty of the court to fix the amount of the attorneys’ fees in such cases, and the only thing that can be complained of is whether or not the trial court abused its discretion in doing so. American Income Life Ins. Co. v. Davis, Tex.Civ.App., 334 S.W.2d 486, N.W.H.; Franklin Life Ins. Co. v. Woodyard, Tex.Civ.App., 206 S.W.2d 93, N.W.H.; National Life & Accident Ins. Co. v. Runnels, Tex.Civ.App., 227 S.W.2d 351, N.W.H.; Johnson v. Universal Life & Accident Ins. Co., 127 Tex. 435, 94 S.W.2d 1145; Trevino v. American National Ins. Co., 140 Tex. 500, 168 S.W.2d 656. The point is overruled.

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    Bob White JACKSON, Appellant, v. The HANOVER INSURANCE COMPANY, Appellee.
    No. 4346.
    Court of Civil Appeals of Texas. Waco.
    April 1, 1965.
    Rehearing Denied April 22, 1965.

      Harold Klein, Houston, for appellant.
    Bryan & Patton, Chilton Bryan and Juli-etta Jarvis, Houston, for appellee.
   WILSON, Justice.

Summary judgment was rendered on the motion of the workmen’s compensation insurance carrier that the injured employee-claimant take nothing. We affirm.

The grounds of the motion were that claimant had elected to pursue his common law remedy against a negligent third person, having reduced his claim for personal injuries to final judgment, and was thus precluded from recovery of workmen’s compensation. Claimant’s answer was that he had proceeded in the common law action for damages under a subrogation agreement with the carrier, in which his rights under the Workmen’s Compensation Act were preserved.

The carrier filed affidavits which asserted the form for the subrogation agreement was submitted for signature to claimant’s attorney by an independent claims agent; that claimant and his attorney were told it was necessary that the written form of agreement be submitted to and approved by the carrier; that after claimant and his attorney signed it, the document was sent for signature to the carrier by the independent claims agent who was handling the claim for appellant, and who had prepared the form; that the agreement was signed by the carrier and returned to the independent claims agent with instructions it was not to be delivered to claimant unless additional stipulations concerning attorneys’ fees and expenses were agreed to by the latter; that claimant would not agree to these and other added provisions, and the agreement was, therefore, not delivered.

Claimant did not controvert these statements in the carrier’s affidavits, but filed his own affidavit stating that the agreement form and a letter from the claims agent made it apparent delivery was not necessary before the agreement became effective, and that he had no notice the carrier was denying existence of the agreement until after the final decision of the Industrial Accident Board. The letter referred to told claimant’s attorney the claims agent would “send it to the company and request that a signed copy be returned to you.” It is not suggested that a copy signed by the carrier was ever returned to claimant.

It is undisputed the minds of the parties never met; the requisite assent was never given; there was no acceptance. The record establishes without dispute there was no contract. 1 Williston, Contracts (Jaeger 1957) Secs. 77, 88.

Appellant challenges appellee’s affidavits under Rule 166-A(e) Texas Rules of Civil Procedure, because they do not recite they were made on personal knowledge, and for failure to have attached sworn or certified copies of every document referred to in the affidavits. There was no exception or objection to the affidavits presented in the trial court, and under the record these objections may not be first raised on appeal. Youngstown Sheet & Tube Co. v. Penn, Tex.Sup., 363 S.W.2d 230, 234. Affirmed.


text:
    G. R. SPARKS, d/b/a Sparks Motor Company, Appellant, v. Montague J. ODOM, Appellee.
    No. 4319.
    Court of Civil Appeals of Texas. Waco.
    March 25, 1965.
    Supplemental Opinion April 1, 1965. Rehearing Denied April 15, 1965.
    Gripp, Will & Collins, Eugene M. Mc-Elyea, Houston, for appellant.
    Cattanach, Capps, Turner, Coe & Rear-don, Houston, for appellee.
   WILSON, Justice.

Plaintiff Odom sued defendant Sparks alleging the latter sold him an automobile, agreeing that he could make payments “on a bi-weekly”, rather than a weekly basis; and that Sparks converted the car by repossessing it, with plaintiff’s clothes and tools, from a parking lot. The only answer of defendant was a general denial. Judgment for actual and exemplary damages was rendered for plaintiff on a jury verdict.

Appellee Odom’s only points are that there is no evidence, or insufficient evidence to support findings on the seven issues submitted. The findings, other than as to damages, were to the effect that “defendant’s agent or representative” had authority to modify the written contract as to payments to be made, and did “grant plaintiff the right” to make bi-weekly rather than weekly payments; and that defendant acted with malice in repossessing the car.

Odom’s sales contract and chattel mortgage note to Sparks called for payments to be made Saturday of each week. Three such payments were made on successive Saturdays for which Sparks’ office employee signed receipts. Subsequent receipts signed by the same employee were dated 10, 5, 9, 7, 9 and 5 days apart. Plaintiff and defendant were the only witnesses appearing. Odom testified that when he made the last of these payments he went to defendant s office and Sparks could not be located; “I asked his secretary, the woman who gives me the receipts, if it would be all right if I made two payments” per month, doubling up on the payments, “and she said it would be okay.” This testimony was not rebutted. The car was repossessed by Sparks before the bi-weekly period expired. He testified he relied on the terms of the note, sale contract and chattel mortgage. These provided no change should be made in their terms unless in writing. Sparks testified he “positively required” contract changes to be in writing. Appellant’s counsel concedes oral modifications were authorized. Sparks testified one of his employees — a man — had no authority to make “verbal agreements to extend” note payments. He did not testify as to authority of the woman office employee. The latter was not called as a witness.

The evidence is adequate, in our opinion, to sustain the findings as to the extent of the agent’s authority and authorization of bi-weekly payments. Buzard v. Jolly, Tex.Sup., 6 S.W. 422, 424; Bradstreet v. Gill, 72 Tex. 115, 9 S.W. 753, 2 L.R.A. 405; Hearn v. Hanlon-Buchanan, Tex.Civ.App., 179 S.W.2d 364, 367; 2 Tex.Jur.2d Sec. 31, p. 467.

Although appellant’s points relating to findings on damages concern the quantum of evidence, the arguments actually are directed to the form of the issues and the measure of damage submitted, as to which no objections are preserved. These points are overruled.

We sustain appellant’s point that there is no evidence to support the finding defendant acted with malice in repossessing the car.

If appellee files remittitur within 5 days from the date of this opinion in the sum of $200 and interest thereon, the judgment will be modified to subtract that amount, allowed as exemplary damages, and affirmed; otherwise the judgment is reversed and the cause remanded. One-fourth of the costs are taxed against appellee.

Affirmed on condition of remittitur.

Supplemental Opinion

Appellee having filed remittitur, the judgment is reformed to reduce the recovery hy $200 and interest thereon; and as reformed is affirmed.


author: BELL, Chief Justice.

text:
    CARPENTER BODY WORKS, INC., Appellant, v. Tommy D. McCULLEY, Jr., et al., Appellees.
    No. 14603.
    Court of Civil Appeals of Texas. Houston.
    April 8, 1965.
    Rehearing Denied April 29, 1965.

      A. J. Watkins, Baker, Heard, Elledge & Watkins, Houston, Ballard Bennett; Wiley Thomas, Angleton, for appellant.
    Ralph K. Miller, Miller & Gann, Houston, Leland B. Kee, Davis & Kee, Angle-ton, for appellees.
   BELL, Chief Justice.

This is an appeal from an order of the trial court overruling appellant’s plea to the jurisdiction of the trial court, the plea being asserted in a special appearance made pursuant to the right conferred by Rule 120a, Texas Rules of Civil Procedure.

Tommy D. McCulley, Jr., individually and as next friend of Tommy D. McCulley, III, sued appellant and three other defendants, to recover damages for personal injuries suffered by Tommy, III, when a door on a school bus came open while Tommy III was a passenger, causing him to fall from the bus. Appellant was alleged to be the manufacturer of the bus. It was alleged that appellant was a foreign corporation doing business in Texas and that it had failed to appoint an agent for service. It was asked that service be made upon the Honorable Crawford D. Martin, Secretary of State, pursuant to the provisions of Article 2031b, Sec. 3, Vernon’s Ann. Tex.Civ.St. Service was so made. Appellant filed its motion that the service be held invalid and that it be quashed.

' Thereafter, two of the other defendants filed cross-actions against appellant. To each cross-action appellant also made a special appearance for the sole purpose of attacking the jurisdiction of the court on the ground that it was not amenable to service in an in personam action brought in Texas.

When the record was filed in this Court, we raised the question as to whether the Court had jurisdiction since the order overruling the plea to the jurisdiction was thought to be interlocutory and we knew of no statute or rule authorizing an appeal. We requested the filing of briefs by counsel directed solely to the question of our jurisdiction. Briefs have been filed by said counsel.

We are of the view that the order appealed from is purely interlocutory and there is no rule or statute authorizing an appeal from an order overruling a plea to the jurisdiction.

Rule 120a is silent as to appealability in such case but by strong implication it precludes an appeal. It provides in paragraph 3:

“If the objection to jurisdiction is overruled, the objecting party may thereafter appear generally for any purpose. Any such special appearance or such general appearance shall not be deemed a waiver of the objection to jurisdiction when the objecting party or subject matter is not amenable to process issued by the courts of this State.”

This language to us shows an intention that the party whose plea to the jurisdiction is overruled shall thereafter proceed to trial on the merits and if he suffers adverse judgment on the merits, his complaints on appeal may encompass one complaining of the trial court’s action in overruling his plea to the jurisdiction.

The only Texas case we have found discussing the appealability of an order overruling a plea to the jurisdiction is Fishbein v. Thornton, Tex.Civ.App., 247 S.W.2d 404. In that case it was stated that an order overruling a plea to the jurisdiction was interlocutory and not appealable. We are in accord with that statement.

The rule in most states is that such an order is interlocutory and not appealable in the absence of statutory authority. 30 A.L.R.2d 287, 291. Professor Wayne Thode of the University of Texas School of Law discusses Rule 120a in an article in 42 Texas Law Review 279. He there expresses the view that, an order overruling a plea to the jurisdiction is interlocutory and not appealable.

Appeal dismissed.


author: McDONALD, Chief Justice.

text:
    A. J. LOUVIERE, Appellant, v. Roy L. POWER et al., Appellees.
    No. 4314.
    Court of Civil Appeals of Texas. Waco.
    April 8, 1965.
    Rehearing Denied April 29, 1965.
    Bond & Meroney, Teague, for appellant.
    Dunnam & Dunnam, Waco, for appellees.
   McDONALD, Chief Justice.

This is an appeal from a judgment reforming a contract on the ground of mutual mistake.

Plaintiff Louviere brought suit against defendants Power and Colley for $7200, allegedly due plaintiff as termination pay under a written contract he had with defendants, to manage their motel. Pertinent portions of such contract are:

“Waco, Texas, March 4, 1962
“Subj ect: Motel operation contract between Mr. A. J. Louviere, and owners * * * Roy L. Power and Woodrow Colley.
“This contract is to be for a one year period * * *
“Roy L. Power and Woodrow Colley agree to employ Mr. A. J. Louviere to operate and manage * * * motel under following conditions:
“Mr. Louviere will be paid $600 per month * * *.
“ * * * We agree that if the motel is sold within 30 days * * * that Mr. Louviere will receive 90 days termination pay, and if the motel is sold within 1 year * * * Mr. Lou-viere will receive 1 year termination pay * *

Plaintiff alleged he managed the motel until it was sold on January 8, 1963, and that defendants refused to comply with the contract and pay hirñ the 1 year’s termination pay, (amounting to $7200).

Defendants answered by general denial, and alleged that their agreement with plaintiff was that he have termination pay ‘‘of the balance of’ one years’ pay, if the motel sold within a year, and that through mutual mistake the words “the balance of” after the word “receive” were omitted from the written contract. Defendants tendered $1100 to plaintiff as the amount due, and prayed for reformation of the contract so as to require defendants to pay to plaintiff “the balance of” 1 year termination pay, if the motel sold within the year.

Trial was to a jury which found: “that at the time of the execution of the written contract all parties thereto believed that same provided for payment to Louviere of only the balance of one year’s pay, if the motel was sold after 30 days and before one year.”

The Trial Court entered judgment on the verdict, reforming the contract by inserting the phrase “the balance of” after the word “received” and prior to the words “1 year’s termination pay.” (The Trial Court further awarded plaintiff the sum of $1100, which had been tendered by defendants, and adjudged the costs against plaintiff.)

Plaintiff appeals on 8 points, contending: 1) there is no evidence or insufficient evidence to sustain the finding of mutual mistake ; and 2) there is no evidence or insufficient evidence to sustain the finding of the jury that at the time of the execution of the contract “all parties believed that same provided for payment to plaintiff Louviere of only the balance of 1 year’s pay if the motel sold after 30 days and before 1 year”.

The record reflects that defendants owned a motel, and needed a manager for same; plaintiff was a motel manager seeking employment, and came to Waco at defendants’ request to discuss the job as manager of defendants’ motel. Defendants were trying to sell the motel, and wanted to employ a manager for only such time as it would take to sell the motel. Plaintiff was aware of this, and wanted some sort of guarantee. Plaintiff and defendants came to an agreement, and defendant Power wrote out in longhand the agreement and gave it to his secretary to type; the secretary returned the typed contract to Power, and Power and Colley signed it without reading it. Power and Colley both testified that the agreement with plaintiff was that plaintiff was to receive 3 months’ termination pay if the motel sold within 1 month; and “the balance of” 1 year’s pay, if the motel sold during the first year; that plaintiff so understood; that the secretary who transcribed the contract left out the words “the balance of” after the word “receive”; and defendants did not notice the mistake until the time of the sale of the motel. Plaintiff testified that the contract as written set out the agreement that he made with defendants as he understood it. Plaintiff further testified that he knew defendants’ purpose was to sell the motel; and further that had it sold after 1 year from the time of his contract he would be entitled to no termination pay. As noted, the motel was sold approximately 10 months after the making of the employment contract.

A mistake of fact, if mutual, is well settled ground for reformation of a written contract. The parol evidence rule does not apply where it is alleged that by reason of mutual mistake, an agreement does not express the real intention of the parties, and in such case extrinsic evidence is admissible to show what the real contract is. Olvey v. Jones, 137 Tex. 639, 156 S.W.2d 977. The party seeking reformation must prove what the true agreement was, and that the terms of the writing which differ from the true agreement are incorporated in the instrument as a result of mutual mistake of the parties. Burrows v. Seale, 148 Tex. 411, 225 S.W.2d 966; Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447.

The scrivener or typist’s failure to embody the true agreement of the parties in the written contract is such mistake as to afford ground for reformation for mutual mistake. Bates v. Lefforge, Tex.Com.App., 63 S.W.2d 360; Williams v. Hooks, Tex.Civ.App., (n. w. h.) 333 S.W.2d 184; Temple Electric Supply Co. v. Simmons, Tex.Civ.App., (n. r. e.), 328 S.W.2d 931; Hill v. Brockman, Tex.Civ.App., (n. w. h.) 351 S.W.2d 934.

The precise question here is whether there is sufficient evidence that plaintiff, at the time he signed the written contract, believed that it provided for payment to him “of only the balance of 1 year’s pay.”

The record reflects that plaintiff had worked at a number of motels in the past for various periods of time, but had never before worked under a contract providing for termination pay. Defendants testified that since plaintiff knew the motel was up for sale, plaintiff wanted a guarantee of at least one year’s employment; and that the agreement of the parties was that if the motel sold after 30 days, and before 1 year, plaintiff would receive “the balance of” 1 year’s pay as termination pay; and that plaintiff fully understood that such was the agreement, and gave his assent to such agreement; that defendant Power wrote the agreement in longhand and gave it to his secretary to type; and that the typist left the words “the balance of” out of the written contract. Plaintiff testified he read the written contract before he signed it, and that it contained the agreement as he understood it.

Mutual mistake is not readily established by the admissions of the parties to be affected by the reformation of the contract. Like a conspiracy, a mutual mistake is generally established from all the facts and circumstances surrounding the parties and the execution of the instrument. Bordovsky v. Dougherty, Tex.Civ.App., 106 S.W.2d 779; Weir v. W. T. Carter & Bros., Tex.Civ.App., W/E Ref., 169 S.W. 1113; Coker v. Hughes, Tex.Civ.App. (n. w. h.) 307 S.W.2d 354; State v. Wales, Tex.Civ.App. (n. r. e.) 271 S.W.2d 728.

From all the facts and circumstances in evidence, we think the jury could have disbelieved plaintiff’s testimony, and could have reached the conclusion from the facts and circumstances, that plaintiff knew that the agreement was that he receive “the balance of” 1 year’s pay if the motel sold prior to 1 year from the making of the contract ; and further that at the time plaintiff signed the written contract he believed that it provided such. It would be hard to believe that defendants would not have waited to sell the less than 2 months remaining in the period covered by the contract, and owe the plaintiff nothing, if the true agreement be as contended by plaintiff. Moreover, it is but natural that plaintiff insists that the instrument speaks the true agreement; if this were not true, there would be no lawsuit. Coker v. Hughes, Tex.Civ.App., (n. w. h.) 307 S.W.2d 354, 359.

While we realize the question is not free from doubt, we think the jury’s answer to the issue submitted is supported by ample evidence to sustain the finding and judgment. All of plaintiff’s points and contentions are overruled.

Affirmed.


text:
    R. E. TURRENTINE, Jr., Appellant, v. Lucille LASANE et vir, Appellees.
    No. 4334.
    Court of Civil Appeals of Texas. Waco.
    March 18, 1965.
    Robert W. Hagen, Houston, for appellant.
    Hamblen & Hamblen, Houston, for appel-lees.
   WILSON, Justice.

A decree ordering issuance of writ of mandamus to the County Clerk directing him to record two affidavits of heirship is appealed from. In our opinion the writ should issue, and we affirm.

The clerk declined to record the affidavits tendered to him with the recording fee. Both instruments were properly sworn to and acknowledged. The first stated that affiant was the only heir of her deceased mother, recited other genealogical facts, and, among other' matters, stated that decedent owned specifically described realty and personalty at her death. The second affidavit by another affiant generally confirmed the statements of the first as to family history and heirship.

Respondent’s position in the trial court and here, is that affidavits of heirship are not authorized by law to be recorded except (a) when embodied in or attached to another instrument which they purport to explain, or (b) when deposited for record under certain Probate Code provisions. He argues that relator’s object was to record evidence concerning descent and heirship, the exclusive procedure and jurisdiction for which, he says, is vested in the probate court by Secs. 48-56 and 137 et seq. of the Probate Code. The argument is not urged as affecting equitable rights, but as a reason respondent properly refused to record the documents. Neither relator’s motive in seeking to have the instruments recorded, whether her purpose may in fact be effectuated, nor whether it is good practice for title examiners to rely on them, are elements which determine whether they are subject to recordation. The district court is not here attempting to determine or declare heirship, as respondent suggests; the sole subject matter of the action is to require performance of an asserted official duty. The question is whether there is a ministerial duty to record the affidavits.

It is the duty of the county clerk to record all deposited written instruments authorized, required or permitted to be recorded in his office. Arts. 1941, 6591, 6594, 6595, Vernon’s Ann.Civ.Stat.

Art. 386 of the Laws of the Republic of Texas, Acts 1839, Oldham & White Digest 750, and its 1836 predecessor only admitted to record deeds, conveyances, mortgages and “other liens affecting the titles to land.” In 1846 the First Legislature extended enumeration of the instruments authorized to be recorded to include, as does present Art. 6626, V.A.C.S., “other instruments of writing concerning any lands or tenements, or goods and chattels, or moveable property of any description.” II Gammel’s Laws 1542.

The general policy of Texas registration laws, it has been said, “requires that our public records disclose all matters affecting our land titles.” Leonard v. Benford Lumber Co., 110 Tex. 83, 216 S.W. 382, 383. That policy may be looked to in determining legislative intent. Freels v. Walker, 120 Tex. 291, 26 S.W.2d 627, 628.

The fact that the two affidavits affect land titles and are at least “instruments of writing concerning” lands leads to our conclusion they are authorized to be recorded by Art. 6626. See Bashara v. Glasscock, (Tex.Civ.App.1927) 289 S.W. 128, 130, writ ref.; Lange, Land Titles, 3 Texas Practice, Sec. 254, p. 400; Sec. 318, pp. 517, 519; 5 Tiffany, Real Property (3rd Ed.) Sec. 1263, p. 15; 6 Powell, Real Property Sec. 914, p. 278 ; 49 Tex.Jur.2d Sec. 30, p. 353; Texas Probate Code Sec. 52; Art. 3726a, V.A.C.S. We do not imply opinion that the statutory authorization is restricted to affidavits which concern lands.

The clerk’s ministerial duty to record is properly enforced by mandamus. Hollis v. Parkland Corp., 120 Tex. 531, 40 S.W.2d 53, 56; 55 C.J.S. Mandamus § 173, p. 324; 49 Tex.Jur.2d Sec. 19, p. 342, 343. See Tobin v. Knaggs, Tex.Civ.App., 107 S.W.2d 677, 679, writ ref. Affirmed.


author: TIREY, Justice.

text:
    STANDARD LIFE & ACCIDENT INSURANCE COMPANY, Appellant, v. Jimmie Dell TUBBS, Appellee.
    No. 4354.
    Court of Civil Appeals of Texas. Waco.
    March 25, 1965.
    Baker, Botts, Shepherd & Coates, George H. Kolb, Houston, for appellant.
    John W. Mitchell, Houston, for appellee.
   TIREY, Justice.

This is an appeal from a summary judgment wherein Miss Tubbs sued on a limited health and accident policy for $540 dis= ability benefits, $300 attorney’s fees and 10% statutory penalty, wherein she alleged that she was totally disabled from November 3, 1962 to February 21, 1963 because of neck and low back injuries sustained in an automobile accident. The appellant denied that appellee sustained total disability but the County Court granted a summary judgment for appellee in which it held her to be totally disabled as a matter of law and awarded to her the sum of $540 disability benefits and fixed $300 attorney’s fees and $64.80 statutory penalty. The appellant seeks an order of reversal and remand for jury trial on the merits. Error is assigned on three points. They are substantially:

(1) That the Court abused its discretion in overruling appellant’s motion for continuance on summary judgment;
(2) In entering summary judgment for appellee since the record did not conclusively show appellee to be totally disabled within the meaning of the policy during the period in question;
(3) In awarding $300 attorney’s fees to appellee since the record did not conclusively show that amount to be reasonable under the circumstances.

We sustain points 1 and 2 for reasons hereinafter briefly stated.

Plaintiff’s original petition was filed in the County Court on January 3, 1964. Pertinent to this discussion she alleged that she was injured in an automobile accident on November 3, 1962 in the town of Brookshire, and that as a result she was totally disabled from performing every duty in connection with her work within the meaning of part two of the policy through February 21, 1963, and that by reason thereof defendant became obligated to pay her the sum of $540. The policy in suit had the following provision:

“PHYSICAL EXAMINATIONS AND AUTOPSY: The Company at its own expense shall have the right and opportunity to examine the person of the insured when and as often as it may reasonably require during the pendency of a claim hereunder and to make an autopsy in case of death where it is not forbidden by law.”

Pursuant to the provisions of the policy the appellant requested Miss Tubbs by letter dated August 6, 1964 to undergo a physical examination in the office of Dr. T. O. Moore in the Herman Professional Building in Houston on August 10, 1964. She failed to appear for such examination. Thereafter on or about August 18, 1964 the appellant filed motion with the Court to require Miss Tubbs to submit to a physical examination in Dr. Moore’s office in Houston at 10:30 A.M., on September 2, 1964. The motion was opposed by appellee on the ground that she was too ill to travel to Houston and the court overruled the motion. It appears that the only doctor in Brookshire where the appellee resides is the one who is treating her and he had signed an affidavit as to her injuries. It was for that reason Standard Life made arrangements for Dr. Moore to travel to Brook-shire to examine Miss Tubbs at her residence. On September 15, 1964 Mr. Mitchell, attorney for appellee, was advised that Dr. Moore would be at appellee’s residence in Brookshire at 10:30 A.M., September 26, 1964 to perform a physical examination on her. (the cause was tried on September 29, 1964 and judgment was rendered on that date). On the prescribed date Dr. Moore arrived at her residence in Brook-shire to perform such examination but her attorney refused to allow the examination to take place. The Court was sufficiently advised of such refusal during the hearing on appellant’s motion for continuance. It appears to be the appellee’s position that since Miss Tubbs allegedly re-injured her neck and low back on May 15, 1963 no doctor could examine her in August or September of 1964 and determine whether she was disabled in the latter part of 1962 or the early part of 1963. There are no contingencies in the clause that sustain appel-lee’s position. In this connection we think we should state that no proof of loss (claim) was made on the November 3rd accident until May 10, 1963, thus making the examination prior to May 15th accident impossible. The record shows that appel-lee’s motion for summary judgment was not filed until September 14, 1964. Attached to this motion was the affidavit of John W. Mitchell, Attorney for appellee, also affidavits of Wendell S. Loomis, Jimmie Dell Tubbs, A. O. Muske, Marianne Skrivanek, Dr. Louis A. Ensenat, Lucius S. Tubbs, and Dr. J. J. Hopkins. The appellant’s attorney promptly filed two separate affidavits advising the court that opposing affidavits and depositions were not presently available and requested additional time to obtain them. In one of the affidavits appellant advised the court that ap-pellee’s brother, Lucius S. Tubbs, had given his deposition in another suit which ap-pellee had pending against the Standard Life, and had testified that she was able to perform substantially all her duties in the latter part of November 1962. A copy of his deposition was attached to the affidavit so filed. On the basis of this affidavit appellant asked that additional time be allowed to take the deposition of Lucius Tubbs in this suit. The other affidavit called the court’s attention to the clause in the policy being sued on which bound appellee to be examined by a doctor of the company’s choice during the pendency of the claim. This affidavit also advised the court that Miss Tubbs had refused to submit to such physical examination on several occasions and therefore controverting medical affidavits were not available. Appellant asked that the hearing be postponed until Miss Tubbs had submitted herself to a physical examination. The court overruled both motions and granted summary judgment for appellee in the amounts heretofore stated.

It is well settled that provisions in insurance policies requiring the insured to submit to physical examinations are valid. See 163 A.L.R., 926 to 931 inclusive. The provision quoted was a contractual obligation and was necessarily binding upon Miss Tubbs and she was legally bound on appellant’s request to submit to a physical examination by a physician of appellant’s choice before she could force appellant to trial under the record here made. It is without dispute that several attempts and demands were made to obtain a physical examination prior to the filing of the motion for summary judgment. Those demands were arbitrarily refused and the County Court refused to assist the appellant in obtaining the examination. After motion for summary judgment was filed additional attempts and demands were made to obtain a physical examination and these were again arbitrarily refused. The refusal of the appellee on the advice of her attorney to permit herself to be examined by a doctor of appellant’s choice casts suspicion on the contents of her affidavit, as well as that of her attorney. The question arises: What more could be done by Standard Life in the exercise of ordinary diligence? The answer is obvious. The record before us indicates that the appellee, under her attorney’s advice, arbitrarily refused to submit to a physical examination by a doctor of appellant’s choice and, therefore, violated the expressed contractual provisions of the policy. Under the expressed provisions of the policy, and under all the surrounding circumstances here shown by the record, we think appellee and the court were precluded from forcing appellant to trial until appellee had submitted to a physical examination by a physician of appellant’s choice. Since appellant caused his physician to go to the residence of appellee to make the physical examination provided for in the policy no valid excuse is offered for the appellee’s refusal to abide by her contract and her action in this behalf requires that this cause be reversed and remanded.

We have examined the affidavits accompanying Miss Tubbs’ motion for summary judgment very carefully, and in view of the interest of the witnesses, and in view of the circumstances shown in this record, plus the exclusive control which Miss Tubbs had and exercised over the evidence, we are of the view that the credibility of each witness, and the accuracy of the evi-dentiary facts related by affidavits are questions which only a jury should decide after a thorough cross examination. See 24 Tex.Jur.2d—Evidence, Sec. 713. See also Casualty Reciprocal Exchange v. Parker, 12 S.W.2d 536 (Tex.Com.App.); Schumann v. Brownwood Mut. Life Ass’n, 286 S.W. 200 (Tex.Com.App.); Pope v. Beauchamp, 110 Tex. 271, 219 S.W. 447; Montgomery v. Gallas, Tex.Civ.App., 225 S.W. 557 (n. w. h.); First Nat. Bank of Ft. Wayne, Ind. v. Howard, Tex.Civ.App., 174 S.W. 719, (err. dis.); Sovereign Camp of Woodmen of the World v. Jackson, 138 S.W. 1137 (err. ref.). The affidavits submitted by Miss Tubbs concerning her ability to work did not conclusively establish her total disability, and the conclusion to be drawn from such eviden-tiary facts as to whether Miss Tubbs was totally disabled is a question of fact for the jury and not a question of law for the court. See Nix v. Davis, Tex.Civ.App., 358 S.W.2d 225. In the foregoing case we find this statement:

“While the evidentiary facts may be undisputed, there may be conflicting reasonable inference as to the existence of ultimate facts that may be drawn from the evidentiary facts. In such case there are fact issues to be determined.”

The Supreme Court in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, made the following pronouncement:

“The duty of the court hearing the motion for summary judgment is to determine if there are any issues of fact to he tried, and not to weigh the evidence or determine its credibility, and thus try the case on the affidavits.” (emphasis added).

See also Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345, point (1-3); Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396; Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, point 3, page 562.

After a careful review of the affidavits, we are of the view that the trial court here undertook to weigh the evidence and determine the credibility of the witnesses, and in so doing he tried the case on the affidavits. In so doing he violated the express rule of our Supreme Court, and for that reason this cause is reversed and remanded for trial on the merits, but not inconsistent with this opinion. Because the cause must be reversed and remanded, Point 3 relating to attorney’s fees passes out of the case.


author: COLEMAN, Justice.

text:
    GULF COAST FACTORS, INC., Appellant, v. HAMILTON SUPPLY CORPORATION, Appellee.
    No. 14496.
    Court of Civil Appeals of Texas. Houston.
    March 25, 1965.
    Rehearing Denied April 15, 1965.

      Louis H. Beard, Wells, Duncan & Beard, Beaumont, and C. Anthony Friloux, Jr., Houston, of counsel, for appellant.
    Charles Crady, III, Houston, and John A. Embry, Jr., Houston, of counsel, for ap-pellee.
   COLEMAN, Justice.

This is a suit on an account. The trial court withdrew the case from the jury and rendered judgment that the plaintiff Gulf Coast Factors, Inc., take nothing as to the defendant, Hamilton Supply Corporation. Judgment was rendered in favor of the plaintiff as to the defendant, Sonom Company of Texas, Inc. Gulf Coast Factors, Inc. has appealed.

Sonom Company of Texas, Inc., was engaged in the business of selling at wholesale a certain protective coating material. Sonom entered into a factoring agreement with appellant whereby appellant-agreed to buy Sonom’s accounts receivable. The provisions of this agreement material to this controversy are:

“2. YOU HEREBY AGREE TO SELL AND ASSIGN TO GULF COAST FACTORS, INC. AS YOUR FACTOR, ALL OF YOUR ACCOUNTS RECEIVABLE THAT SHALL BE ACCEPTABLE TO US. It is clearly understood that you will submit to us each and every account receivable during the period covered by the terms of this contract, for our consideration and approval. The account and terms of sale shall be submitted to us for our credit approval; our credit approval may be withdrawn by us at any time before delivery of merchandise and/or materials.
“4. 'You agree to sell, assign and transfer to us all of your rights, title, and/or interest in the merchandise, and/or materials represented by said receivables and in all such merchandise and/or materials that may be returned by customers, as well as all your rights of stoppage in transit, re-plevin, and reclamation. On any such material which for any of the above reasons is defective, or not in conformity with the invoice or order, or where for any reason the merchandise is returned, you hereby agree to immediately pay us the full net value of the invoice for such returned merchandise and/or materials.
“5. You agree to provide us with an assignment of such accounts receivable purchased by us, on a form furnished by us, together with copies of your customers’ invoices, and satisfactory evidence of shipment. All customers’ invoices shall clearly state that same have been assigned and are payable to us only.
“7. You hereby warrant that the merchandise and/or materials sold will be accepted and retained by your customer without dispute as to price, terms, quantity, quality or for any other reason. You agree to notify us promptly in writing of all such disputes or claims and you agree to settle same at your own cost and expense. We, however, shall have the right at all times, with your consent, to adjust all claims or disputes with your customer upon such terms as you may desire and shall have the right to charge you with any cost or expense pertaining thereto. We shall have the right to charge your account with such claim or disputed item before or after the maturity date. Any cost incurred by us in such disputes, claims, or settlements shall be charged against you or your Reserve Fund.
“12. Any merchandise and/or materials returned to you or customers’ remittances received by you pertaining to transactions between us shall be held by you as trustee for us, and such remittances are to be turned over to us immediately. We shall have the right to endorse your name on all remittances payable to you which relate to transactions between us.”

Among other items factored with appellant by Sonom were Invoices 1024 and 1033 issued by Sonom to appellee in the amounts of $21,230.65 and $57,368.28 dated January 1, 1958 and February 17, 1958, respectively. Appellant contends that these invoices represent completed sales of merchandise, while appellee contends that the merchandise listed on the invoices was sent to them on consignment.

Before appellant would purchase an account from Sonom, it required that Sonom furnish the invoice, a purchase order, and a schedule of assigned receivable describing in detail the particular invoices to be sold. The instruments furnished concerning each of the two transactions in question were prepared on the same forms. On the front of the “Schedule of Assigned Receivables” form various invoices are described. On the back of the form there is an assignment contract to be executed by the assignor, and accepted by the assignee. This contract reads in part:

“We, the undersigned, for value received, * * * hereby sell, assign, transfer and set over to the factor * * * the accounts or claims set forth in the statement on the reverse side hereof, and all our right, title and interest in and to the same, and to all merchandise covered by said claims and accounts. * * *
“We hereby represent and warrant as to each of said accounts or claims so assigned, that we are the owner thereof, that it is just, true and correct, and represents a bona fide sale; that the merchandise therein mentioned has been delivered to and accepted by the debtor therein named; that no payment has been made thereon; that there are no offsets or counter-claims thereto; that the terms of credit are as set forth therein, * * *."

At the time Invoices 1024 and 1033 were factored appellant received from Sonom the purchase orders issued by appellee. On each of the purchase orders the following statement is found: “The invoice for the above material will be paid in agreement with your letter dated November 25, 1957 by your Mr. David Ellis.” This letter reads:

“Hamilton Supply Corp.
210 Magnolia
Galena Park, Texas
Re: Our Invoice No. 1014
Gentlemen:
In reference to our above invoice it is understood by this firm that the billing covered by the invoice shall be on a 45 day basis.
It is further understood that in event any material remains in your stock which is covered by above invoice such SONOM will be removed from your warehouse, upon your request, and the billing will be adjusted to cover only that material sold.
Yours truly,
(s) David Ellis
Sec-Treas.
(seal)”

Paul M. Terrill acted for appellant when each of these accounts was purchased. He saw the reference to the letter of November 25, 1957, and, in answer to his inquiry, was told by a Sonom representative that it merely reduced the time of payment to 45 days. He asked to see the letter and was told that it was not immediately available, but that it would be furnished. He made no inquiry of appellee concerning the letter, although he ascertained from appel-lee that the purchase order had been issued prior to the purchase of each account.

When these invoices were not paid, Ter-rill discussed the matter with a representative of appellee, who informed him that ap-pellee considered the merchandise as having been received on consignment.

On March 18, 1958, at the request of ap-pellee, the president of Sonom gave appel-lee the following letter:

“Hamilton Supply Corporation
210 Magnolia
Galena Park, Texas
Re: Our Invoices Nos. 1024 and 1033
Gentlemen:
It is understood that in the event any material remains in your stock which is covered by above invoices, such SONOM will be removed from your warehouse, upon your request, and the billing will be adjusted to cover only that material sold.
Yours very truly,
/s/ William H. Strous
William H. Strous
President”

On May 7, 1958, Terrill wrote the following letter to appellee:

“Hamilton Supply Corporation
210 Magnolia
Galena Park, Texas
Attn: Mr. Leon Smith
Gentlemen :
Mr. Schubert has informed me of your conversation with him last week regarding our account of $80,593.34 with your company.
It is true you mentioned to me over the phone, that you had a letter of special arrangement from Mr. Strous. I asked for a copy of this letter particularly because the invoices were past due. I also explained that our purchase of these invoices from Sonom Co. was based on your purchase order issued to Sonom Co, of Texas.
Since the invoices were transmitted to your Vice President, Mr. M. L. Had-den, and no objection was made upon receipt, we feel we must look to your company for payment of our account of $80,593.34.
Yours very truly,
/s/ Paul M. Terrill
Paul M. Terrill
Vice President
PMT :ph
CC: Sonom Co. of Texas
Mr. W. Strous.”
Thereafter, appellee sent the following letter to Sonom:
“Mr. William H. Strous
Sonom Co. of Texas
714 W. Shaw
Pasadena, Texas
Dear Sir:
In accordance with our agreement with you and Mr. Ellis as outlined in your letters and provided for in our purchase orders, we would appreciate your giving immediate consideration to the removal of the remaining consigned Sonom products from our warehouse.
We have approximately two thousand square feet of warehouse space involved. This merchandise can be stored however, in one thousand feet or less.
We trust that you can make satisfactory arrangements for storage of this merchandise, or that an agreement can he reached to the mutual benefit of all parties providing for storage and insurance charges after May 15, 1958.
“Very truly yours,
HAMILTON SUPPLY CORPORATION
James Leon Smith, Comptroller
JLS:gj
cc: Gulf Coast Factors”

Appellee’s pleadings contained a prayer that appellant be required to remove the merchandise from its warehouse, and there was testimony that all of the merchandise was available for delivery to appellant at appellee’s warehouse.

Appellant contends that the trial court erred in rendering judgment for appellee because the evidence raised an issue of fact as to whether the transactions involving invoices Nos. 1024 and 1033 were sales and did not establish conclusively that the transactions were consignments.

The individuals representing Sonom and Hamilton in the preliminary negotiations culminating in the business relationship between the two companies did not testify at the trial. Appellee’s motion for instructed verdict came at the conclusion of appellant’s testimony,,, and appellee placed no witnesses on the stand. In addition to the writings described, appellant introduced into evidence business records of the companies involved showing that these two transactions were handled in a different manner than the other accounts factored. There was testimony that had Terrill seen the letter of November 25, 1957, he would not have factored the two invoices. The testimony shows that Invoice No. 1014 referred to in that letter was factored by appellant and that the account was paid by appellee. There was evidence that accounts for goods on consignment were not customarily factored; that purchase orders were not ordinarily issued for consigned merchandise without a prominent notation to that effect on the purchase order, and that there was no such notation on these purchase orders. Appellee paid, or was billed for, the freight on these orders, which was not customary when goods were consigned. There was testimony that a percentage discount is not customary on consigned material, and the invoice allowed such a discount on these accounts. Ordinarily companies dealing in consigned materials operate under a written consignment agreement, and there was no such agreement between these companies. There was testimony that prior to the purchase of each of these two accounts, a Sonom representative told appellant that the invoice represented a completed sale.

It is appellant’s theory that these circumstances raise a fact issue for the determination of a jury as to whether the transactions were sales or consignments.

In 6 Amer.Jur.2d, Assignments, § 102, the nature of the title acquired by an as-signee is stated as follows:

“The assignee of a thing in action acquires at once an equitable ownership therein, so far as it is possible to predicate property or ownership of such a species of right. As a general rule he takes the subject of the assignment with all the rights and remedies possessed by or available to the assign- or, and a claim good in the hands of an assignor which is good against the original debtor is ordinarily equally good and free from defenses in the hands of his assignee. On the other hand, the general rule is that an as-signee of a non-negotiable chose in action acquires no greater right than was possessed by his assignor, and simply stands in the shoes of the latter.
“In an action on the claim assigned, the assignee is ordinarily subject to any setoff or counterclaim available to the obligor against the assignor and to all other defenses and equities which could have been asserted against the chose in the hands of the assignor at the time of the assignment.”

There is nothing about a completed sales transaction that is inconsistent with a contractual right to return merchandise for credit on the account created by that transaction. The factoring agreement recognizes that merchandise sold by Sonom might be returned and provides that title to merchandise and materials returned by customers would vest in appellant and would be held by Sonom as trustee for appellant. The second paragraph of the letter of November 25, 1957 from Sonom to Hamilton clearly gives appellee the right to require Sonom to pick up unsold merchandise at appellee’s warehouse and to credit the value of this merchandise on the bill for merchandise represented by invoices 1024 and 1033.

There is no pleading that the provision for the return of merchandise was included in the letter agreement as the result of fraud or mistake, or that it did not in fact constitute a part of the agreement between the parties binding on Sonom. While the terms of the agreement may have been misrepresented to appellant by Sonom, there was no such conduct on the part of appellee prior to the purchase of the accounts. Appellant has not pled waiver or estoppel.

While appellant has pled that the notation on the purchase orders referring to the letter was insufficient to put them on notice that appellee had a right to return merchandise for credit, it referred to terms of payment and was sufficient. In any event it is immaterial since appellee had a right to demand credit on the particular account from Sonom, and appellant stands in the shoes of Sonom. Appellee had the right to demand credit on the account in the hands of appellant. Art. 570, Vernon’s Ann.Civ.St.; Feder-Gregg Shoe Co. v. Big Four Shoe Co., Tex.Civ.App., 284 S.W. 717; Stagal Oil Co. v. Bartholomew, Tex.Civ.App., 144 S.W.2d 1012, error dism.

Since appellee tendered back all of the goods listed on the two invoices, he was entitled to full credit on the accounts.

The judgment of the trial court is affirmed.


text:
    NORTHEAST TEXAS MUNICIPAL WATER DISTRICT, Appellant, v. W. B. MIMS, Appellee.
    No. 7623.
    Court of Civil Appeals of Texas. Texarkana.
    March 2, 1965.
    J. R. Cornelius, Sr., Cornelius & Cornelius, Jefferson, for appellant.
    Eades & Eades, Dallas, for appellee.
   DAVIS, Justice.

A condemnation case. Plaintiff-appellant, Northeast Texas Municipal Water District, presented a petition to the County Judge on or about February 26, 1958, for condemnation of 9.78 acres of land situated in the Robert Mason Survey in Marion County, Texas, belonging to defendant, W. B. Mims. The decision of the Commissioners was to award Mims the sum of $2,665.00. A deposit was made and the appellant took possession of the property. W. B. Mims filed his objections and exceptions to the award of the Commissioners and perfected his appeal to the County Court, The case remained on file until May 28, 1964.

W. B. Mims died on November 1, 1963. On May 26, 1964, a verified plea in abatement was filed and presented to the trial court giving notice of the death. The plea in abatement set out the facts that Mims died testate, and in the Will he appointed Glenda Belle Grisaffi, a granddaughter, and John Henry Mims, a son, as Co-Independent Executors of his estate, to serve without bond. The plea in abatement further identified all the heirs of W. B. Mims, deceased, as: Mary Mims, surviving wife, and eight children; Warren Berry Mims, Andrew Frank Mims, Edward Hartz Mims, William Baldwin Mims, Jr., John Henry Mims, Ben Etta Frances Cates; Catherine Ruth Hatcher, the wife of J. R. Hatcher; Emma Elizabeth King, wife of Emory King.

Counsel for appellant contested the plea in abatement on the theory that the lawyers representing W. B. Mims, deceased, were in truth and in fact representing the heirs of W. B. Mims. There was actually no evidence of any employment of said attorneys by the heirs of the estate. There were some statements made that one of the attorneys had announced ready for trial in April with the positive assurance that the case would be tried on May 28, 1964. All the evidence necessary to show the death of Mims was offered at the hearing before the case went to trial. According to the evidence, one of the sons of Mims, deceased, on Friday, May 23, 1964, went to the office of the lawyers that had purportedly made the announcement in April that the case would be tried in May, and the lawyer inquired of him as to the whereabouts of his father. The son announced that his father had died on November 1, 1963. That was the first notice the. lawyers had of such death, because Mims was a resident of Dallas, Texas, and the law firm is situated in Marshall, Texas. The lawyer immediately tried to call the attorney for appellant to advise him of the fact of the death of Mims. Being unable to reach him, he prepared a verified plea in abatement and filed it on Monday, May 26, 1964. In the contest the appellant did not show any trade that was made between the heirs of W. B. Mims and the attorneys. The trial court overruled the plea in abatement and forced them to trial against their wishes on the pleadings that had previously been filed by W. B. Mims, deceased, on May 13, 1958. There were no additional pleadings filed by the attorneys that could be attributed to the heirs.

After the attorneys were put to trial, the jury was impaneled and the rule was invoked. Counsel for appellant then took the position that the heirs of W. B. Mims could not remain in the courtroom during the introduction of evidence because they were not parties to the suit.

Under the record in this case, we are confronted with a fundamental error as to the jurisdiction of the trial court. This question is not raised by the appellant or by the attorneys representing W. B. Mims, deceased, but it is so obvious that it can not be overlooked. Jurisdictional questions of the trial court are always open for consideration on appeal. Nichols on Eminent Domain, Vol. 6, 3d Ed., Sec. 26, 731(2). In a condemnation case, where the death of the sole owner of the property occurs during the proceedings but prior to the trial of the case, his heirs or legal representatives are entitled to be made parties to the suit. Nichols on Eminent Domain, 3d Ed., Vol. 2, Secs. 5.5, 5.5(1) and 5.5(2). In speaking of the jurisdiction of the trial court it is said in 1 C.J.S. Abatement and Revival § 172, p. 223, in part, as follows:

“Generally speaking, an action, suit, or proceedings involving or affecting the title to real property, such as one to * * * condemned land for public use, * * * should be revived or continued, after the death of the defendant, against his heirs or devisees * * *."

Also see 1 C.J.S. Abatement and Revival § 170, p. 222; Glass v. Cook, 257 Ala. 141, 57 So.2d 505; Whatcom County v. Schuman, 12 Wash.2d 290; 121 P.2d 378; 1 Am.Jur.2d 82, Sec. 47; 1 Am.Jur.2d, p. 133, Sec. 118; and 1 Am.Jur.2d 136, Sec. 122.

Appellant relies upon the case of Bragdon v. Wright et al., Tex.Civ.App., 142 S.W.2d 703, wr. dism., to support his action in contesting the plea in abatement. In this case, it appears that Walter Wright was a veteran of World War I. He was drawing World War I compensation. He secured a license and married Hettie Wright on September 5, 1936. They lived together a short time, and Walter Wright was persuaded to leave Hettie Wright and live with a relative. G. T. Haggard was his Guardian. The record doesn’t show whether he was appointed Guardian before or after the marriage. Hettie Wright was told that Walter Wright was a ward of the Federal Government, and that she had violated the law in marrying him. She was persuaded to execute a waiver, and Walter Wright secured a divorce on May 11, 1937. The waiver was executed prior to the time that the suit for divorce was filed. Walter Wright died in August of 1937. At the time of his death, he was seized and possessed of 52 acres of land and certain personal property. Hettie Wright did not learn of the divorce until later in the year, and filed a suit against G. T. Haggard, the former Guardian, and K. J. Bragdon, temporary administrator of Walter Wright, to set the judgment of divorce aside on the grounds that Walter Wright was not insane or mentally incapable of entering into a marriage contract, and that the judgment was procured through fraud, and that no jurisdiction had been procured because the purported waiver was executed prior to the filing of said suit. The case was tried to a jury and all the special issues were answered in favor of Hettie Wright. The record does not show that a verified plea in abatement was filed in the case giving the names of the next of kin of Walter Wright deceased. It seems that the record showed that his mother and father had died prior to his death. He had no brothers or sisters. But he had collateral kin. The court pointed out that a waiver of notice executed prior to filing the divorce suit would render the judgment void. He went on to say that such expression is not entirely correct because a void judgment is one without any force or effect and may, for that reason, be attacked in any court in any proceedings either direct or collaterally. He pointed out that the record showed, without objections, that waiver of notice was executed prior to the filing of the divorce suit. In view of the law in the case, he pointed out that the collateral kin of Walter Wright were necessary parties to the suit. He then pointed out the question, upon the undisputed facts, shown below, that the collateral kin of Walter Wright could be regarded as being parties to the present suit. They were not formally named as defendants, but they had employed the same attorney to represent them, and gave him written power to do so. Actually, the temporary administrator being a party defendant, it seems that the court would have jurisdiction, whether or not the collateral kin were made parties. In the case, the attorney for the next of kin prepared the pleading, voluntarily appeared in open court, took exclusive charge and control of the defense, filed and presented all the necessary and proper answers and pleas, selected the jury, examined and cross-examined the witnesses, and litigated every issue as effectively as could have been done had they formally intervened or otherwise appeared in their own name instead of in the name of the administrator of the estate.

Although this case has been pending for quite a length of time, there is no limitation of time to present the verified plea in abatement. W. B. Mims died on November 1, 1963. The plea in abatement was presented to the court on May 26, 1964. In the case of Faulkner et al v. Reed, Tex.Civ.App., 229 S.W. 945, N.W.H., the court said:

“There must be before the court a legal representative. And in cases where the suit has been instituted and proper service had, upon the death of the party such suit abates, and cannot be prosecuted further without the substitution of a personal representative. Nor can such appearance be made by a person not so authorized. Jones v. Jones’ Heirs, 15 Tex. 463; Greer et al v. Ferguson et al, 56 Ark. 324, 19 S.W. 966.” (Emphasis added.)

See, also, Barlage v. Detroit G. H. & M. Ry. Co., 54 Mich. 564, 20 N.W. 587; Trahan v. Roberts, Ct.Civ.App., 48 S.W.2d 503, N.W.H.; 1 Am.Jur.2d 82, Sec. 47; 1 Am.Jur.2d 133, Sec. 118; 1 Am.Jur.2d 136, Sec. 122.

Rule 152 of the Rules of Civil Procedure (formerly Art. 2080, R.C.S.), “Death of Defendant”, reads as follows:

“Where the defendant shall die, upon the suggestion of death being entered of record in open court, or upon petition of the plaintiff, the clerk shall issue a scire facias for the administrator or executor or heir requiring him to appear and defend the suit and upon the return of such service, the suit shall proceed against such administrator or executor or heir.”

It appears from the evidence in the case that the Will had not been filed for probate. Therefore, the Clerk of the Court should have issued writs of scire facias to each of the heirs of W. B. Mims, deceased, requiring them to appear and defend the suit. Actually there was no legal representative in the. case at all. The equity rule has been made the rule in this state in all situations where the cause of action survives the death of any party pendente lite. 1 T.J.2d 17, Sec. 1. The trial court should have continued the case until the heirs had been made parties defendants. In the event appellants did not make the heirs parties defendants, the only jurisdiction the trial court would have had would be to dismiss the cause of action. A good discussion will be found in 1 T.J.2d pps. 76-142, inch, Secs. 57 to 141, inch The trial court was without any jurisdiction whatever in the case at bar.

The judgment of the trial court is set aside and the case remanded with instructions that the plea in abatement be sustained and that the appellant be permitted to make new parties. All costs of this appeal are taxed against the appellant. W. B. Mims was deceased before the case was called for trial, and this court is without authority to tax the costs against him.

It is so ordered.