author: DUNAGAN, Chief Justice.

text:
    Mrs. Erma Gene PERRY, Guardian of Lonnie Perry, a Minor, Appellant, v. AETNA LIFE INSURANCE COMPANY OF CONNECTICUT, Appellee.
    No. 48.
    Court of Civil Appeals of Texas. Tyler.
    June 18, 1964.
    Rehearing Denied July 16, 1964.

      Herman W. Mead, Houston, for appellant.
    Joe E. Coleman and Fouts, Moore, Williams & Caldwell, Houston, for appellee.
   DUNAGAN, Chief Justice.

This suit was brought in the 129th District Court of Harris County, Texas, by Erma Gene Perry, guardian of Lonnie Perry, a minor, appellant against Aetna Life Insurance Company, appellee. This suit was predicated on an insurance policy being Group Accidental Death and Dismemberment Policy No. LL-60,615. Aetna Life Insurance Company had previously paid $7,500.00 to Erma Gene Perry as Guardian of Lonnie Perry under Group Life Policy No. 60,615. Group Life Policy No. 60,615 and Group Accidental Death and Dismemberment Policy No. LL-60,615 are separate contract, No. 60,615 providing for $7,500.00 benefits on death and No. LD-60,615 providing for $7,500.00 benefits on death by accidental means. The plaintiff set the case for trial on the non-jury docket for the week of September 30, 1963. On the Friday preceding the week of September 30, 1963, at the call of the docket, the case was set down for trial in order of its number in the customary

way. The case was not reached for trial until October 3, 1963, during the week of September 30, 1963. The appellant contended and now contends that the death of Lonnie Perry resulted from accidental means and the appellee contended and now contends that the death of Lonnie Perry did not result from accidental means within the definition of the policy. The trial court gave judgment for the appellee and this appeal has been brought by the appellant. The appellant contends that the case was tried in the trial court as an agreed case under Rule 263 of the Texas Rules of Civil Procedure. The appellee disagrees with this and says that the case was tried as any other non-jury case with each party introducing evidence and resting its case. The parties entered into a written stipulation on October 2, 1963, as to certain undisputed facts, the first paragraph thereof reading as follows:

“Now come plaintiff, Erma Gene Perry, Guardian of Lonnie Perry, a minor, and also defendant, Aetna Life Insurance Company through their respective attorneys of record, and stipulate and agree that the following facts are true and correct and as to which undisputed facts no additional proof is necessary to establish, or is to be required in this cause upon a trial hereof. This stipulation may be used on any trial of this cause or any motion for summary judgment. It is stipulated and agreed by the parties hereto as follows:”

The paragraphs contained in the stipulation which are pertinent to a proper disposition of this cause are as follows:

“6. That Group Accidental Death and Dismemberment Policy No. I.L-60,615 and Certificate No 10715, both issued by Aetna Life Insurance Company, do not contain any exclusion clause other than the following:
“ ‘Insurance under this policy shall not cover any loss caused directly or indirectly, wholly or partly, or contributed to substantially, by bodily or mental infirmity; or ptomaines; or bacterial infections (except pyogenic infections which shall occur through an accidental cut or wound) ; or any other kind of disease; or medical or surgical treatment (except such as may result directly from surgical operations made necessary solely by injuries covered by this policy); or war, or any act of war; or suicide, sane or insane.’
“7. That Lonnie Perry did not die as the result of any of the following causes:
" 'by bodily or mental infirmity; or ptomaines; or bacterial infections (except pyogenic infections which shall occur through an accidental cut or wound); or any other kind of disease ; or medical or surgical treatment (except such as may result directly from surgical operations made necessary solely by injuries covered by this policy) ; or war, or any act of war; or suicide, sane or insane.’
“8. That by the stipulation in paragraph 7 there shall be no inference, finding or conclusion that the death of Lonnie Perry resulted directly or independently of all other causes from bodily injuries sustained solely through accidental means.
“9. That Group Accidental Death and Dismemberment Policy No. LL-60,615, evidenced by Certificate No. 10715, provided benefits of Seven Thousand Five Hundred Dollars ($7,-500.00), payable on the death of Lonnie Perry upon receipt of due proof by Aetna Life Insurance Company that such loss of life resulted directly, and independently of all other causes, from bodily injuries (including bodily injuries arising out of or in the course of employment) sustained solely through accidental means.
“10. That there can be no recovery in this cause by the plaintiff unless the death of Lonnie Perry resulted directly or independently of all other causes, from bodily injuries (including bodily injuries arising out of or in the course of employment) sustained solely through accidental means.
"11. That Lonnie Perry was shot and killed by Erma Gene Perry with a .32 caliber revolver pistol about 12:15 A.M. on October 2, 1960.
“12. That Lonnie Perry was shot by Erma Gene Perry in self-defense. Self-defense was the defense of Erma Gene Perry in the trial of the criminal case for the murder of Lonnie Perry, which resulted in a verdict by a jury of not guilty.
“13. That Lonnie Perry had purchased the .32 caliber revolver pistol for Erma Gene Perry to use for her protection some ten years prior to October 1, 1960, and Lonnie Perry knew that said pistol was in the house occupied by Erma Gene Perry at 2801 Stallings Drive.
“14. That Erma Gene Perry and Lonnie Perry had been separated for some three months prior to September 15, 1960, during which time they lived separately. Their separation had been occasioned by Lonnie Perry’s relationship with other women and on occasions when caught by Erma Gene Perry with other women or when reprimanded for going out alone Lonnie Perry had inflicted beatings on Erma Gene Perry. Erma Gene Perry had filed a suit for divorce from Lonnie Perry and said divorce suit was pending and no divorce had been granted on October 2, 1960, and no restraining orders were in effect.
“15. That Lonnie Perry had moved back into the house at 2801 Stallings Drive with Erma Gene Perry approximately two weeks prior to October 1, 1960.
“16. That on October 1, 1960, Lonnie Perry left home at approximately 7:30 A.M. in the car owned by the Schlumberger Well Surveying Corporation, for whom he worked as a chauf-fer. Erma Gene Perry followed him in her car and observed him in the company of another woman, at which time she confronted him and told him that due to his continued association with other women that she was no longer going to live with him and wanted him to return home and get his clothes and leave. Lonnie Perrie returned home at approximately 10:00 A.M. on October 1, 1960. He was told by Erma Gene Perry to pack his clothes and get out. He left and returned home about 6:30 P.M. on October 1, 1960. He was asked by Erma Gene Perry what time he was planning on leaving and he said that she needn’t worry that he was going to get out. He packed his clothes and put them on the front porch and left. About 12:15 A.M. on October 2, 1960, Erma Gene Perry was awakened while she was in the house at 2801 Stallings Drive by a noise at the front door. She got out of bed, got the pistol out of the dresser drawer and went into the hall, where she could see the front door. Lonnie Perry was in the process of breaking in the screen door and wooden door at the front of the house. Erma Gene Perry told Lonnie Perry not to come in the house, that all of his clothes were on the front porch. Lonnie Perry continued to break the screen door and wooden door open. The lights were on on the outside porch where Lonnie Perry was breaking the doors open, and in the living room where Erma Gene Perry was standing with the pistol in her hand in front of her in plain view. Erma Gene Perry could plainly see Lonnie Perry as he broke the door open. There was nothing that prevented Lonnie Perry from plainly observing Erma Gene Perry. He broke the screen door open and then battered the wooden door open with his shoulder breaking the lock on the wooden door, as well as a safety chain. Erma Gene Perry said 'Don’t come in here. I will shoot.’ Lonnie Perry continued to break the door open and upon getting inside started toward Erma Gene Perry. Erma Gene Perry fired the pistol at Lonnie Perry for the purpose as she stated of ‘hoping to scare him so that he would stop and leave.’ The first shot did not hit Lonnie Perry. Lonnie Perry continued to come toward Erma Gene Perry after the first shot and while still advancing stated T broke your arm once and I am going to break your neck this time.’ Erma Gene Perry then fired the .32 caliber revolver at Lonnie Perry again. The second shot hit Lonnie Perry in the forehead approximately one and one-half inches above his right eye and resulted in his death. Erma Gene Perry had never threatened Lonnie Perry with a pistol or fired a pistol at him prior to the time of the shooting resulting in his death. Aetna Life Insurance Company has previously paid Seven Thousand Five Hundred Dollars ($7,500.-00) to Erma Gene Perry as guardian for Lonnie Perry, Jr., under Group Life Policy No. 60,615. Group Life Policy No. 60615 and Group Accidental Death and Dismemberment Policy No. LL-60615 are separate contracts, No. 60615 providing Seven Thousand Five Hundred Dollars (7,500.00) benefits on death by accidental means.
******
“18. That Aetna Life Insurance Company did not pay benefits under Group Accidental Death and Dismemberment Policy No. LL-60615 upon the death of Lonnie Perry, to Lonnie Perry, Jr., a minor, through his guardian within thirty days after demand.
******
“20. That Lonnie Perry was not intoxicated, drunk or insane at the time of his death.
“21. That Lonnie Perry knew the .32 caliber revolver was kept loaded.
“22. That Erma Gene Perry would have opened the door to the house as Lonnie Perry asked her, but he just started beating the door down.
“23. That Erma Gene Perry believed from Lonnie Perry’s conduct and acts that Lonnie Perry intended to do physical harm to her.
“24. That Lonnie Perry had no defects of hearing or eyesight and was over 6 feet 2 inches in height and weighed over 200 pounds. Erma Gene Perry was 5 feet 5 inches in height and weighed 170 pounds.
“25. That the .32 caliber revolver made the normal noise of a pistol of that type when it was fired by Erma Gene Perry at Lonnie Perry.
“26. That Erma Gene Perry had never committed any violence on the person of Lonnie Perry during their marriage, or on October 1, 1960 or October 2, 1960.”
Appellant has brought forward three points of error, to-wit:
FIRST POINT
“ERROR OF THE TRIAL COURT IN ENTERING JUDGMENT BASED ON FACTS FOUND BY THE COURT OUTSIDE THE RECORD IN THE CASE.”
SECOND POINT
“ERROR OF THE TRIAL COURT IN ITS CONCLUSION AS A MATTER OF LAW, THAT LONNIE PERRY, SR, ANTICIPATED HIS WIFE WOULD KILL HIM ENTERING HIS OWN HOME.”
THIRD POINT
“ERROR OF THE TRIAL COURT IN SETTING ASIDE AND DISREGARDING THE STIPULATION OF ALL FACTS AGREED TO BY BOTH PARTIES.”

Appellant’s three points of error are so closely related that we will discuss and dispose of them together.

The appellant is contending that by virtue of the fact that there was a stipulation as to certain undisputed facts introduced at the trial that this constituted a submission of the case to the court under an agreed statement of facts as encompassed by Rule 263 of the Texas Rules of Civil Procedure. The appellee contends that this stipulation was an ordinary stipulation frequently used by attorneys. The court expressly found in its findings of fact requested by the appellant that the cause was set for trial on the non-jury docket by the appellant for the week of September 30, 1963, and that this cause was tried under the Texas Rules of Civil Procedure applicable to non-jury cases and was not tried as an agreed case under Rule 263 of the Texas Rules of Civil Procedure. The case was reached for trial on October 3, 1963, at which time the case was tried before the court. The appellant introduced into evidence the stipulation and rested her case. The appellee thereupon introduced into evidence the same stipulation and rested its case. Upon each party having rested its case, the court heard arguments and rendered judgment for the appellee. Four days later on October 7, 1963, the appellant filed a motion asking the court to certify the stipulation as an agreed statement of facts. The appellee filed an answer to appellant’s motion attaching an affidavit by her attorney, Joe E. Coleman, setting out certain facts leading up to the signing of the stipulation specifically denying that it was agreed that this stipulation would be an agreed statement of the case. The affidavit states “One of the first drafts was an agreed statement of facts prepared in the form attempting to comply with Rule 263 of the Texas Rules of Civil Procedure as to an agreed case. On the night of October 1, at about 7:00 P.M., the affiant called Mr. Herman Mead, the attorney for the plaintiff at his home, and notified him that no stipulation could be entered into if it was going to be a stipulation such as was invisioned by Rule 263 of the Texas Rules of Civil Procedure but that the defendant would be willing to enter into an ordinary and regular stipulation such as is commonly used which could be used in any trial of the cause or on any motion for summary judgment. The attorney for the plaintiff indicated that this was agreeable to him. He had been previously furnished a draft of the stipulation which had recited on the front page that it was an Agreed Statement of Facts and which on the last sheet contained a certificate to be made by the District Judge stating that the contents of the foregoing Agreed Statement of Facts were true and correct. He was told that the first and last pages would bb retyped deleting all statements and all references to Agreed Statement of Facts and removing the certificate and would merely be signed by the parties and would be a simple stipulation to be used when the case was called for trial if it was reached. The first and last pages of the proposed stipulation were retyped on Wednesday morning and presented to the attorney for the Plaintiff, Mr. Herman Mead, and inserted in his copy. Mr. Mead indicated his agreement to this and on Wednesday, October 2, at about 1:30 P.M. in the 125th District Courtroom he signed the stipulation and it was filed among the papers of the cause. The stipulation was also signed by counsel for the defendant. The above entitled and numbered cause was reached for trial at 1:30 P.M. on October 3. At no time was there any agreement that the stipulation which was filed among the papers of the cause was an agreed statement of facts in compliance with Rule 263 of the Texas Rules of Civil Procedure and, in fact, attorneys for the defendant expressly told attorney for the plaintiff that they would not make any stipulation at all if it was under Rule 263 of the Texas Rules of Civil Procedure. At no time was there any agreement that the above cause was to be submitted as an agreed case under Rule 263 of the Texas Rules of Civil Procedure.” The appellee’s answer and affidavit was filed on October 7, 1963, the same date that appellant filed her motion to certify the stipulation as agreed statement. A hearing on the motion of appellant was held on the same date, October 7, 1963, and the court denied the motion overruling the motion of appellant to certify found that the cause was set for trial on the non-jury docket and was tried under the Texas Rules of Civil Procedure applicable to non-jury trials and was not tried as an agreed case. The affidavit of appellee’s attorney was not controverted prior to the hearing and the entering of the judge’s order denying appellant’s motion. The appellant on October 11, 1963, filed a request for findings of fact and conclusions of law. In response to the request of appellant, the court found some eleven findings of fact and four conclusions of law. In addition to finding all the facts contained in the stipulation the court made some additional findings based upon the evidence contained in the stipulation.

Appellant objected and excepted to the court’s finding Numbers 6, 7, 8, 9, 10 and 11 on the ground that these findings were not contained in the stipulation and that there is no authority in law for the court to make findings of fact other than those contained in the stipulation of facts.

Rule 263 provides “Parties may submit matters in controversy to the court upon an agreed statement of facts filed with the clerk, upon which judgment shall be rendered as in other cases; and such agreed statement signed and certified by the court to be correct and the judgment rendered thereon shall constitute the record of the cause.”

An agreed case and an ordinary stipulation differ from each other primarily in the findings that can be made outside of the facts contained in the agreed statement. Under an ordinary stipulation the court could make any findings and could indulge in any inference that would be supported by the evidence.

Ordinarily under an agreed case the court is without authority, in the absence of a provision in the agreed statement of fact providing otherwise, to draw any inference or find any fact not embraced in the agreement unless as a matter of law such further inference or fact is necessarily compelled by the evidentiary facts agreed upon. Abilene Hotel Corporation v. Gill (Tex.Civ.App. 1945) 187 S.W.2d 708 (ref. w. m.); Hutcherson v. Sovereign Camp, W.O.W., 112 Tex. 551, 251 S.W. 491; Texas Mexican Ry. Co. v. Scott, 1910, 60 Tex.Civ.App. 482, 129 S.W. 1170 (writ refused).

It is obvious from the face of the instrument that it did not refer to the cause being submitted on an agreed statement of facts nor did it anywhere stipulate or have any wording referring to “agreed statement of facts.” The stipulation does not refer to Rule 263 nor was it signed and certified by the court as required by this rule.

In 3 Texas Jurisprudence 2d, under Agreed Case, it is stated :

* * *
“A mere agreement in open court to submit one of several issues or the mere introduction in evidence of a written agreement signed by the attorneys for the respective parties is not an agreed case.
“2: The decisions require the statement of facts to contain a recital of all the facts of the case on which the parties have agreed and on which they seek to obtain judgment. It must expressly stipulate that the cause shall be tried on the facts so agreed upon, and that the facts agreed upon are all the facts of the case.”

Cited as authority for this statement is Bomar v. West, 87 Tex. 299, 28 S.W. 519; The Praetorians v. Simons, Tex.Civ.App., 187 S.W.2d 238.

The instrument expressly provides that the parties stipulate and agree as to the following undisputed facts and no additional proof is necessary to establish it or is to be required upon a trial hereof. It certainly implies there may be other facts as to which either party may offer proof if they so desire and only as to the facts in the stipulation is no further proof required.

In 3 American Jurisprudence 2d, Agreed Case, Section 5, we find the following statement:

“Although an agreed case might be considered a kind of stipulation, and although the terms are sometimes used interchangeably, as used in this article an agreed case is distinguishable from a stipulation. An agreed case in this sense requires agreement on all the ultimate facts essential for determination of the particular litigation, leaving to the court only the function of deciding questions of law, and, except where there is a particular stipulation to that effect, not allowing the court to draw inferences of fact from the facts agreed on. A mere stipulation, however, does not place the ultimate facts essential to determination of the case beyond issue or beyond need for adjudication. It is merely an agreement on certain particular facts, thus avoiding the need to present evidence regarding them but not eliminating the court’s function of drawing inferences from the stipulated facts and others shown by evidence * *

The appellant, although contending that the cause was tried as an agreed case, requested the trial court to make findings of fact and conclusions of law. As a general rule, findings of fact do not have any place in the trial of an agreed case. Ocean Accident and Guarantee Corp., Ltd. v. Riggins, et al., 291 S.W. 276 (Tex.Civ.App.1927) writ refused.

The appellant seems to be contending that where the parties enter into a stipulation such as the one in this case that the cause becomes an agreed case as a matter of law. If such were the case, parties to lawsuits could never stipulate as to any undisputed facts without the cause being submitted as an agreed case. It has been held to be an agreed case where the case was submitted to the District Judge upon an agreed statement of facts made out and signed by counsel for the respective parties, and certified by the court to be correct. Thaison v. Sanchez, 13 Tex.Civ.App. 73, 35 S.W. 478; The Praetorians v. Simons, et al., supra. The rule announced in the Thaison case was approved by the Supreme Court in answering certified questions in Scott v. Slaughter, 97 Tex. 244, 77 S.W. 949.

No authority has been cited nor have we found any holding that a stipulation between the parties such as the one before us constitutes an Agreed Case under the provisions of Rule 263.

In determining whether the stipulation was just that (a stipulation) or an agreed statement of facts, the following points are important:

1. The instrument does not denote itself as an agreed statement of facts nor does it refer to Rule 263.

2. It does not purport to contain all the facts.

3. It contained no certificate for the judge to certify and approve nor did the judge certify and approve the stipulation.

4. The request by the appellant for findings of fact and conclusions of law.

5. The instrument does not place the ultimate fact essential to determination of the case beyond need for adjudication. The very basis for appellant’s contention is that there were facts not agreed on which the court was not entitled to find. By stipulation No. 10 it is expressly stated that there can be no recovery by the plaintiff unless the death was by accidental means. Necessarily, these facts are left for the court.

6. Stipulation No. 8 says: “That by the stipulation in paragraph 7 there shall be no inference, finding or conclusion, that the death of Lonnie Perry resulted directly or independently of all other causes from bodily injuries sustained solely through accidental means.” This is the only instance in which no inference, finding or conclusion is to be indulged in by the court or jury. By implication at least the court could make any other supportable findings, inferences or conclusions.

7. The appellant did not ask the court to certify the stipulation in accordance with Rule 263 at or before the trial, her motion to certify not having been filed until four days after the trial. The judgment does not show that the case was tried as an Agreed Case.

The judgment of the trial court in disposing of this cause reads in part as follows:

“And came the parties by their attorneys, no jury having been demanded, and submitted the matters in controversy, as well of fact as of law, to the Court, and the pleadings, the evidence and argument of counsel having been heard and fully understood, it is the opinion of the Court that the plaintiff should take nothing by her suit.”

This judgment was signed by the trial judge and approved as to form by Herman W. Mead, attorney for plaintiff, and Fouts, Moore, Williams and Caldwell, by Joe E. Coleman, attorneys for defendant.

Where parties submit matters in controversy to the court upon an agreed statement of facts under provision of Rule 263, such agreed statement is required to be signed and certified by the court. While the rule requires that the agreed 'statement should be signed and certified by the court, it has been held that such is not necessary where it otherwise appears from the record that the case was tried upon such statement of facts. Darr v. Johnson, Tex.Civ.App.1924, 257 S.W. 682, affirmed by Supreme Court, 114 Tex. 516, 272 S.W. 1098; Lutcher v. Fuller, Tex.Civ.App.1918, 200 S.W. 553 (writ refused).

The appellant has presented no reason to the court as to why she considers the stipulation an agreed statement of facts, her brief only containing the bare conclusion that the cause was tried as an agreed case.

In considering all the facts, circumstances and actions of the parties the trial court’s finding that this cause was not tried as an agreed case under Rule 263 is supported by the record and should not be disturbed.

In response to the request of plaintiff the trial court made the following findings of fact and conclusions of law.

“FINDINGS OF FACT”
“1. This cause was set for trial on the non-jury docket by the Plaintiff for the week of September 30, 1963.
“2. Said cause was tried under the Texas Rules of Civil Procedure applicable to non-jury cases and was not tried as an agreed case under Rule 263 of the Texas Rules of Civil Procedure.
“3. The Plaintiff introduced into evidence a stipulation signed by attorneys for Plaintiff and attorneys for Defendant and rested her case, said stipulation being filed among the papers of the cause on October 2, 1963, and bearing file mark of that date.
“4. The Defendant introduced into evidence the same stipulation mentioned in No. 4 above and rested its case.
“5. I hereby find all of the facts contained in that stipulation as to undisputed facts, signed by attorney for Plaintiff and attorney for Defendant, filed among the papers of the cause on October 2, 1963, and bearing file mark of that date.
“6. Lonnie Perry knew that Erma Gene Perry had the .32 caliber revolver pistol in her hand during the encounter that resulted in Lonnie Perry’s death.
“7. Lonnie Perry heard Erma Gene Perry’s warning ‘Don’t come in here. I will shoot.’; and Lonnie Perry heard the pistol when it was fired by Erma Gene Perry at him the first time.
“8. Lonnie Perry provoked the encounter with Erma Gene Perry that resulted in his death.
“9. From the viewpoint of Lonnie Perry, his conduct was such that he should liave anticipated that in all reasonable probability Erma Gene Perry would kill Tiim.
“10. From the viewpoint of Lonnie Perry, under the conditions that existed, a reasonably prudent man would have known that Erma Gene Perry would shoot him if he continued his conduct.
“11. The death of Lonnie Perry did not result directly or independently of all other causes, from bodily injuries (including bodily injuries arising out of or in the course of employment) sustained solely through accidental means.
“CONCLUSIONS OF LAW”
“1. There can be no recovery in this cause by the Plaintiff unless the death of Lonnie Perry resulted directly or independently of all other causes, from bodily injuries (including bodily injuries arising out of or in the course of employment) sustained solely through accidental means.
“2. Whether the death of Lonnie Perry resulted from accidental means must be •determined from Lonnie Perry’s viewpoint.
“3. Since from Lonnie Perry’s viewpoint his conduct was such that he should have anticipated that in all reasonable probability Erma Geneo Perry would kill him, his death was not the result of accidental means.
“4. Based on the facts in this cause, there can be no recovery by the Plaintiff herein.”

Death is produced by, or as the result, of accidental means when it is not the natural and probable consequence of the means which produced it, or, stated differently, when death does not ordinarily follow and therefore cannot be reasonably anticipated as the result of the use of such means. Spencer v. Southland Life Insurance Company, 340 S.W.2d 335, (Tex.Civ.App., 1960), writ refused; Seaboard Life Insurance Company v. Murphy, 134 Tex. 165, 132 S.W.2d 393.

Where the insured is the aggressor, and knew, or should have anticipated that the other might kill him in the encounter, the death is not to be considered accidental. Occidental Life Insurance Company v. Holcomb, 5 Cir., 10 F.2d 125, 127.

In Texas Prudential Insurance Company v. Turner, Tex.Civ.App., 127 S.W.2d 563, 566, the court held:

“On the undisputed facts, it is our conclusion that Turner, by his conduct on the occasion in question, provoked the difficulty with Garrett under conditions which would have led a reasonably prudent man to believe that Garrett would shoot him if he continued the assault. Garrett was armed with a deadly weapon. He had the weapon in his hand, and pointing it at Turner, threatened to shoot him if he continued to advance. Notwithstanding the warning given by Garrett, under all the testimony Turner continued to advance, and Garrett shot him. There was no ground for the presumption by Turner, that if a fight occurred between him and Garrett, it would be carried on without the use of the deadly weapon. ‘The injury followed in a usual or reasonably to be expected way from the means voluntarily employed’ as that fact conclusion was construed by the Supreme Court in the Bryant case, supra, [Bryant v. Continental Casualty Company, 107 Tex. 582, 182 S.W. 673, L.R.A.1916E, 945] and therefore the conclusion follows that the death of Doc Turner was not the result of a bodily injury ‘sustained * * * solely through * * accidental means.’ ”

The undisputed facts in this case amply support the findings of fact and conclusions of law and the judgment of the trial court.

If we should be mistaken in holding that the stipulation was that only and not an agreed statement of facts under Rule 263, and this cause was submitted and tried as an agreed case, such mistake could not affect the outcome of this appeal as we are convinced that disregarding the facts found by the court and objected to by the appellant, that the judgment of the trial court is amply supported by the undisputed facts contained in the stipulation between the parties.

In this case the insured broke down two doors with his shoulder and forced his way into the house where the appellant was standing with a gun in her hand. She warned him that she would shoot. He continued to come toward her. She then fired a warning shot. He continued to advance and said:

“I broke your arm once and I’m gonna break your neck this time.”

These are undisputed facts stipulated to by the parties. They are before this court unchallenged. Based on these facts and the law to be applied as set out herein, we believe the trial court was justified in concluding that deceased should have anticipated that in all reasonable probability, he would be killed, and that his death was not therefore the result of accidental means, thereby preventing a recovery under the provision of the policy.

Finding no reversible errors in the record, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    PANOLA COUNTY COMMISSIONERS COURT et al., Appellants, v. Lynn BAGLEY et al., Appellees.
    No. 7558.
    Court of Civil Appeals of Texas. Texarkana.
    June 9, 1964.
    Rehearing Denied June 30, 1964.

      E. C. Winfrey, LeRoy LaSalle, J. E. Jackson, Carthage, for appellants.
    Gordon Wellborn, Houston, Phenix, Keeling & Wilder, Henderson, for appellees.
   FANNING, Justice.

A suit for permanent injunction. Lynn Bagley and 5 other resident taxpayers of Panola County, Texas, sued Panola County, Texas, the Commissioners Court of said county, County Judge Winfrey, County Commissioners Furrh, Waits, Rich and Holmes and County Engineer Marshall of said county, seeking to enjoin defendants and their employees from using any of the county owned road equipment, machinery, materials or employees for private purposes.

Plaintiffs’ motion for summary judgment was granted and defendants’ cross-motion for summary judgment was denied. Defendants have appealed.

Plaintiffs-appellees in their pleadings alleged to the effect that over a period of the last several years Panola County equipment, materials and labor had been used for the private benefit of individual landowners and taxpayers and that such practice would continue unless enjoined to the irreparable damage and injury to plaintiffs, that plaintiffs had no adequate remedy at law, that defendants constituting the Commissioners Court of Panola County had entered into a scheme whereby each commissioner may use any and all of the machinery, equipment, materials and employees of Panola County for such private purposes as the commissioners should desire to use them. In addition to making general charges against the defendants, the plaintiffs in their pleadings alleged 28 specific instances of purported illegal and improper use of public materials, labor and equipment on private property. Plaintiffs-appellees sought the entry of a summary judgment on substantially the above stated grounds and in their motion for summary judgment stated that their motion was based upon: “The pleadings on file in this action; and the oral depositions of plaintiffs and defendants which are incorporated herein by reference as supporting affidavits to this motion.”

Defendants replied to said motion for summary judgment, filing a sworn denial of violation of any law or laws, etc., and among other things stating: “Further answering herein, Defendants deny that they have in any manner engaged in any improper practice or law violation in the performance of their duties and obligations as provided by law, but if they be mistaken as to the law in regard to the performance of their duties as public officials, such mistake has been an unintentional error of judgment, and if this Honorable Court finds any practice followed by Defendants to be in violation of any law or an improper exercise of judgment annd discretion vested by law in Defendants, both of which Defendants deny they have violated, such practice will be discontinued and Defendants say that they have not and will not knowingly violate any law of this State as alleged by Plaintiffs in their said Petition and Motion for Summary Judgment.” Defendants also filed 26 affidavits countering various allegations of plaintiffs and also filed a cross-motion for summary judgment in their favor. Defendants-appellants later filed a supplemental pleading further replying to plaintiffs-appellees motion for summary judgment and seeking by cross-motion a summary judgment in their favor and attached four additional supporting affidavits thereto.

Plaintiffs-appellees filed a first supplement to their motion in affidavit form which affidavit was made by Lynn Bagley, one of the plaintiffs, which reads in part as found below. Defendants-appellants also filed a second supplemental pleading to their reply to plaintiffs’ motion for summary judgment and also in support of their cross-motion for summary judgment.

At the time of the hearing on the motion for summary judgments there was on file in the District Clerk’s office the pleadings of the parties, plaintiffs-appellees motion for summary judgment and supplement and the sworn denials and affidavits attached by defendants-appellants to their replies and motions and supplements above referred to and the depositions of the following persons, to-wit: Lynn Bagley, W. Hewey Bagley, A. D. Martin, D. V. McMillan, Dan Sis-trunk and Jim Bob Wallace, the six plaintiffs, and defendant E. C. Winfrey, County Judge of Panola County, Texas.

The depositions of the six plaintiffs have been examined. While much of the deposition testimony is apparently based upon hearsay and investigation of others it is our view that such depositions do raise some issues of fact. However the plaintiffs are interested witnesses and their credibility is for a trier of the facts. These depositions while raising fact issues for a trier of the facts, are not conclusive and certainly are not sufficient to authorize the granting of a summary judgment in this cause, and more especially so in view of the controverting matters set up by defendants-appellants.

The deposition of County Judge Winfrey in effect denies that any law violations had occurred and raises issues of fact with reference to this matter and it is our further view that such deposition also raises an issue to be determined at least by a trier of the facts as to whether a permanent injunction is required as to whether defendants would discontinue any past practices found illegal by the trial court. We are also of the further view that the above referred to sworn statement of defendants to the effect that if they were mistaken in their denial of any law violations, that such mistake had been an unintentional error of judgment, and that if the court found that any practice followed by defendants to be in violation of law or an improper exercise of judgment, such practices would be discontinued, would raise an issue to be determined by a trier of the facts as to whether it was necessary to issue a permanent injunction.

The thirty affidavits filed by defendants-appellants dispute in the main the specific law violations charged. The depositions of defendants Rich, Holmes, and Waits, County Commissioners of Panola County, Texas, and of defendant Marshall, County Engineer, of Panola County, Texas, were not signed by said defendants and were not sworn to by said defendants (they contending that the depositions were in many instances not correct) and said depositions were never filed by the District Clerk of Panola County, Texas. These depositions were apparently taken on July 19, 1962, by the court reporter who certified to them on August 18, 1962. Said depositions were not sent up to this court as a part of the original record, apparently because they had not been filed with the District Clerk and did not bear the file mark of the district clerk.

However, after submission of this cause defendants-appellees filed a sworn motion with the District Court of Panola County, Texas, for certification of the depositions of the defendants Rich, Holmes, Waits and Marshall. Attached to the motion are certification of the court reporter and of the trial judge, all of which have been sent up to this court. Appellants have filed a sworn motion to strike the late filing of said above referred to depositions and said certificate of the trial judge and among other things dispute the factual accuracy of the depositions above referred to and also contest the right of same to be filed as a part of the appellate record in this cause.

It appears from appellees’ sworn motion for certification, with the attached certificate of the court reporter, the certificate of the trial judge and from appellants’ sworn motion to strike, that there are factual questions as to whether the depositions of Holmes, Waits, Rich and Marshall were filed in the trial court, whether they were introduced in evidence in the trial court, ancl whether or not the depositions which said defendants refused to sign because they contended and swore that they were in many instances not correct, were correct or not. There also arise legal questions as to whether said depositions should be considered by this court as a part of the appellate record in this cause.

The issue in a summary judgment proceeding is whether or not there is a genuine issue of fact in the case. And in determining this issue the rule with respect to instructed verdict cases is applicable in that the evidence is viewed in the light most favorable to the party opposing the motion. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93; Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557.

In Gaines v. Hamman, supra, it is stated in part as follows:

“Rule 166-A, Texas Rules of Civil Procedure, provides that a summary judgment ‘shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ The record of a summary judgment proceedings then consists of the pleading whose office it is to outline the claims and defenses of the respective parties, the depositions and admissions on file and affidavits submitted either in support of or opposing the motion. With the exception of the pleadings it is not essential that any or all of the other possible components of the summary judgment record be present. While admissions on file may be likened to pleadings and considered as written judicial admissions, there is no basis for giving controlling effect to a deposition as compared to an affidavit. Neither does the fact that the deposition is more detailed in some respects than the affidavit vest it with dominant authority, provided of course that the affidavit possesses the necessary requisites prescribed by this Court in Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 wherein it was said that under the provisions of Rule 166-A affidavits to be effective either to support or oppose a motion for summary judgment ‘must be made by competent affiants with personal knowledge of the statements in them, which statements must be so worded that if given on the witness stand they would be admissible as evidence.’ Obviously mere conclusions will not suffice and cases so holding do not support the thesis that in cases of inconsistency or conflict, the deposition prevails over the affidavit. If conflicting inferences may be drawn from the deposition and from the affidavit of the same party, a fact issue is presented. United States Fidelity & Guaranty Co. v. Carr., Tex.Civ.App., 242 S.W.2d 224, wr. ref., New St. Anthony Hotel Co. v. Pryor, Tex.Civ.App., 132 S.W.2d 620, wr. ref. It is not the purpose of the summary judgment rule to provide either a trial by deposition or a trial by affidavit, but rather to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of fact. The present record does not disclose a case for summary judgment.” (Emphasis added.)

It is clear that the duty of the court hearing the motion for summary judgment is to determine if there are any genuine issues of material fact to be tried and not to weigh the evidence or determine its credibility and thus try the case on the affidavits. Also the burden of proof is upon the movant to show that there is no genuine issue of material fact and all doubts as to the existence as to a material fact issue must be resolved against a party moving for a summary judgment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

Of course, as above outlined, if the evidence is contradicted on material issues, the court is not authorized to grant a summary judgment. And also where the ultimate conclusion to be drawn from un-contradicted evidence would not necessarily be the only conclusion possible to be made from the same evidence by reasonable minds, such would be a conclusion of fact precluding a summary judgment and not a conclusion of law. And such conclusions of fact, if ultimate and determinative, are to be made by the trier of the facts and not by the court on motion for summary judgment. Frazier v. Glen Falls Indemnity Company, Tex.Civ.App., 278 S.W.2d 388.

Appellees strongly contend that Commissioners Holmes, Waits and Rich in their depositions made certain admissions as to using county equipment, materials and labor for purposes which appellees contend conclusively show that they were for private purposes. However with respect to the commissioners doing work on roads leading from the highway or county road to a person’s house from the depositions and from the whole record it can not be said conclusively that in some or many of these instances that such work was illegal or improper as fact questions have been raised by defendants that many of these roads were access roads or roads authorized by statute or that in some instances the property owner gave right-of-way to widen a county road in exchange for an access road or in some instances in exchange for work on his driveway to his house. With respect to proving that such acts were illegal under all the circumstances the burden of proof was upon the appellees-movants. In this connection see Rowan v. Pickett, Tex.Civ.App., 237 S.W.2d 734, wherein it was stated in part as follows:

“Another matter urged in various points by appellants is that of road maintenance and repair. The trial court found that the various commissioners engaged in the practice of dragging and smoothing roads leading from persons’ houses to main roads, and further found that the evidence failed to show the roads were not third class or neighborhood roads. Appellants sought to enjoin appellees by proving they were maintaining private property rather than public roads. The burden was upon them to prove that the roads being maintained and about which they complained, were not public roads, whether by prescription, dedication or eminent domain. Proof that a road is slightly traveled, McCloskey v. Heinen, Tex.Civ.App., 266 S.W. 193, or that it is a cul-de-sac, Decker v. Menard County, Tex.Civ.App., 25 S.W. 727, does not prove that the road is not public. Article 6711 Vernon’s Ann.Civ. Stats, imposes a power upon Commissioners’ Courts to establish neighborhood roads. * * * Upon appellants’ failure to prove the non-public nature of the roads about which they complained, the court ruled properly.”

Appellees also contend that the depositions of Commissioners Holmes, Waits, and Rich show that they did work for churches which appellees contend was illegal. It was held by the Supreme Court of Texas in Ex Parte Conger, Tex., 357 S.W.2d 740, that it was Improper for a county commissioner to allow the use of county owned equipment for the purpose of performing work on privately owned church property to furnish parking facilities for the use of members in attending services at their church. However in the case at bar the evidence with respect to church work is rather general and is not fully developed as to under what circumstances it was done, and it all appears to be completed acts in the past.

In Godley v. Duval County, Tex.Civ.App., 361 S.W.2d 629, wherein a temporary injunction seeking to restrain county officials from using county equipment, labor and materials for private purposes was denied, the court stated in part as follows:

“The County Commissioners are not authorized to permit the use of county labor materials or equipment for other than public use. Ex parte Conger, Tex., 357 S.W.2d 740; Rowan v. Pickett, Tex.Civ.App., 237 S.W.2d 734. This same rule applies to county employees, regardless of the motives or whether a profit is made. Appellant’s right as a taxpayer to enjoin such use is well recognized. City of Austin v. McCall, 95 Tex. 565, 68 S.W. 791; Terrell v. Middleton, Tex.Civ.App., 187 S.W. 367.
“ * * * Appellant contends that in addition to these two jobs, county labor, equipment and materials were used by Carey on private driveways. Their use was disputed and there was evidence that the only work performed by the county was on the right-of-way between the driveways and county roads. The County Commissioners denied that they authorized the use of county labor, materials or equipment for private purposes.”

Appellees also contend that Commissioners Holmes, Waits and Rich in their depositions above referred to admitted that they would continue with the same practices they had been following unless stopped and that therefore a permanent injunction was authorized and required.

The alleged improper and claimed illegal acts complained of by plaintiffsappellees were all past and completed acts. It is well settled law that in the absence of a showing that they probably will -recur, past acts and practices will not furnish a basis for injunctive relief. Rowan v. Pickett, Tex.Civ.App., 237 S.W.2d 734; Luccous v. Kinley Company, Tex., 376 S.W.2d 336.

Are the depositions of Commissioners Holmes, Rich, and Waits and of County Engineer Marshall, absolutely binding and conclusive on them in the summary judgment proceeding here ? We think not.

In the first place appellants in their motion to strike these depositions, under oath stated to the effect that these depositions were not correct in many instances and for that reason were not signed by them, thus casting some discredit upon the depositions, which depositions were not filed, and as stated earlier in this opinion there is a question as to whether these depositions should he considered as a part of the appellate record in this cause. However it is our view that a consideration of these depositions will not change the decision in this case as it is our view that irrespective of whether said depositions are considered no summary judgment should have been rendered.

In the second place it is well established that statements in a deposition are declarations against the interest of a deponent and their probative value presents questions for the trier of the facts and that if at the trial the deponent desires to explain such statements he has that right and the probative value of his testimony is for the trier of the facts. In this connection see Southern Lloyds v. Jones, Tex.Civ.App., 345 S.W.2d 435, where a summary judgment was reversed, and wherein the court stated in part as follows:

“Appellee makes no effort in his deposition to explain the inconsistencies in his testimony there given nor with any inconsistency of his testimony with the allegations in his pleading. However he was not testifying at a trial and in fact was not called to so testify.
“To support his motion for summary judgment appellee had the burden of establishing that he was entitled to judgment as a matter of law, that there are no genuine issues of fact and all reasonable doubts must be resolved against him. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. Here appel-lee has failed to show that he was the owner of the insured property which fact prevents a summary judgment in his favor. The statements in appellee’s deposition are declarations against his interest and their probative value presents questions for the trier of the facts. McMillan v. Gage, Tex.Civ.App., 165 S.W.2d 754, Er. Ref., w. m.; Stano-lind Oil & Gas Co. v. State, 136 Tex. 5, 133 S.W.2d 767, 145 S.W.2d 569. If at the trial appellee desires to explain such statements he has that right and the probative value of his testimony is for the jury. Leonard v. Smith, Tex.Civ.App., 186 S.W.2d 284. In St. John v. Fitzgerald, Tex.Civ.App., 281 S.W.2d 201, 207, a summary judgment proceeding, statements made in appel-lee’s deposition were considered and the court said:
“ ‘Of course, reliance on the alleged false representation of appellee was an essential of appellant’s cause of action. But, the general rule is that testimony of a party by deposition is given only the force of an admission out of court. It may be explained or contradicted on the trial and when an issue of fact is thus presented the credibility and weight of his testimony is to be passed on by the trier of the facts. 169 A.L.R. 798, 805; Foster v. Woodward, Tex.Civ.App., 134 S.W.2d 417.’
“The action of the trial court in granting appellee’s motion for summary judgment cannot be sustained because the proof is not conclusive that he was the owner of the insured property.”

In the third place the questioned depositions of Holmes, Waits, Rich and Marshall, with respect to whether the same practices would be followed in the future are later qualified, explained or contradicted by the later filed sworn statement that thereafter the commissioners’ court and the various defendants would in the future desist and refrain from any acts held illegal or improper by the trial court. In this connection see St. John Fitzgerald, Tex.Civ.App., 281 S.W.2d 201, wherein a summary judgment was reversed, and the court stating therein in part as follows:

“Appellant contends the trial court could not on a motion for summary judgment pass on the credibility of appellant or the weight to be given his testimony and, since his testimony by deposition relative to relying on appel-lee’s statement is explained, or contradicted, by his affidavit, that an issue of fact as to whether he relied thereon was raised and the court erred in rendering judgment on appellee’s motion. Appellees say appellant’s effort to qualify his deposition testimony is only an effort to impeach his previous testimony and the court was correct in disregarding it.
“Of course, reliance on the alleged false representation of appellee was an essential of appellant’s cause of action. But, the general rule is that testimony of a party by deposition is given only the force of an admission out of court. It may be explained or contradicted on the trial and when an issue of fact is thus presented the credibility and weight of his testimony is to be passed on by the trier of the facts. 169 A.L.R. 798, 805; Foster v. Woodward, Tex.Civ.App., 134 S.W.2d 417.
“We are forced to the conclusion that appellant’s affidavit in response to the motion for judgment raised an issue of fact as to whether appellant relied on the alleged false representation when he executed the contract dissolving the partnership. The judgment is reversed and the cause remanded for a trial on the merits.”

After carefully considering the lengthy and controversial record in this cause it is our view that the summary judgment against defendants should not have been granted under this record as there were disputed material issues of fact both as to whether the defendants-appellants had committed the acts charged and whether such past completed acts (if illegal) would or would not continue in the future and whether therefore a permanent injunction was necessary, and such questions were for the trier of the facts on the merits. Appellants’ contention that the summary judgment rendered against them was not authorized under this record is sustained.

However we overrule appellants’ contention that the trial court erred in not granting a summary judgment in their favor.

It is our view that neither of the contending parties were entitled to a summary judgment under the controversial record here. It is also our further view that this case was not properly or sufficiently developed and that it would be in the interests of justice that the cause be reversed and remanded for a new trial on its merits.

The judgment of the trial court granting a summary judgment is reversed and the permanent injunction granted is vacated; the judgment of the trial court insofar as it denies a summary judgment in favor of appellant is affirmed.

In view of the fact that the summary judgment in favor of appellee is reversed and the judgment of the trial court in denying appellants motion for a summary judgment in their favor is affirmed and viewing the whole record in this cause it is our view that it would be just and equitable to tax one-half of the costs in this cause, both in the court below and in this court, against appellees and that one-half of such costs should be taxed against appellants.

Reversed in part, affirmed in part, remanded for new trial on the merits, and costs taxed in manner above stated.

      . “W. C. Furrh, the commissioner of Precinct 1 in Panola County, Texas, testified by deposition on July 19, 1962, at the same time the other county commissioners testified. The court reporter who transcribed the deposition lost his notebook in which his shorthand notes were transcribed and the record on which Mr. Furrh’s testimony was recorded was unintelligible. For that reason, Mr. Furrh’s deposition was never transcribed and filed in this cause. Before Mr. Furrh’s deposition could be again taken, he became ill and could not submit to another deposition. It is a fact that Mr. Furrh’s testimony under oath at the time of the deposition was substantially the same as the testimony of commissioner D. T. Holmes, and it is a fact that Mr. Furrh testified under oath that he had in the past used public property and public materials for the purpose of graveling and oiling driveways on private property at the homes of private individuals in Pan-ola County, Texas. It is a fact that Mr. Furrh testified that at the time of the deposition he was continuing to do so and would continue to do so in the future unless he was stopped from so doing by an injunction judgment of the District Court of Panola County, Texas.
      “It is also a fact that Mr. Furrh testified under oath at the time of his deposition that the question of the Panola County Commissioners’ oiling and graveling driveways on private property with public property and public materials had been brought up before Grand Juries in Panola County many, many times in the past. Mr. Furrh testified that at no time had any Grand Jury taken any action with respect to such conduct on the part of the commissioners of Panola County.
      “Plaintiffs allege that if W. C. Furrh were personally present, he would testify to the above facts again and that he will so testify at a trial of this case on the merits or by deposition if his testimony can be secured.
      ‘/s/ Lynn Bagley’


author: NORTHCUTT, Justice.

text:
    The DONLEY COUNTY STATE BANK, CLARENDON, Texas, Appellant, v. Bill STOCKSTILL, Appellee.
    No. 7372.
    Court of Civil Appeals of Texas. Amarillo.
    June 15, 1964.
    W. T. Link and William J. Lowe, Clarendon, for appellant.
    Lemon, Close & Atkinson, Perryton, for appellee.
   NORTHCUTT, Justice.

This is a plea of privilege case. Bill Stockstill, appellee herein, brought suit in Gray County, Texas, against Bob Sherrod and The Donley County State Bank as defendants. Stockstill pleaded that on the 12th day of April, 1963, Bob Sherrod executed a promissory note payable to Stock-still and chattel mortgage securing said note, and attached a copy of the note and chattel mortgage to his petition. Stockstill further pleaded upon information and belief that either the bank, acting alone, or both defendants acting jointly and together, caused all, or substantially all, of the livestock described in his chattel mortgage to be removed from Gray County or had caused said livestock to be seized by some process of law and converted and disposed of said livestock, and because of such acts his note against Sherrod had become due and payable, and that Sherrod had failed and refused to pay such note.

Stockstill pleaded in the alternative that the bank’s officers and officials caused a suit to be filed against Sherrod purporting to foreclose a chattel mortgage which the bank had taken on certain livestock, and under said chattel mortgage the bank caused a writ of sequestration or other possessory-writ to be issued and caused the livestock described in Stockstill’s chattel mortgage to be repossessed, seized, sold and otherwise disposed of and that such bank did not have a valid and subsisting first lien on such livestock, and that such acts amounted in law to a conversion and thereby became indebted to Stockstill in the sum of $10,200, and likewise Sherrod became indebted to Stockstill in the sum of $10,200. There is no evidence in this record to show that the bank filed a suit to foreclose his chattel mortgage nor is there any proof that the bank ever took the cattle under a writ of sequestration or any other writ.

Stockstill further pleaded the bank knew it did not have a valid and subsisting first lien on the livestock; alternatively, that the bank knew Stockstill had a first lien and because the bank converted the livestock to its own use that Stockstill was entitled to punitive damages in the sum of $5,000 and also reasonable attorney’s fees in the sum of $2,500.

The Donley County State Bank filed its plea of privilege to be sued in the District Court of Donley County, Texas, the county of its residence and in which its office and place of business was situated. Stockstill filed a controverting plea contending the plea should be overruled and venue held in Gray County under Subdivisions 4, 9 and/or 29a of Article 1995. The plea was heard by the court without a jury and the plea of privilege was overruled. From that order the bank perfected this appeal. The Donley County State Bank will hereafter be referred to as appellant and Stockstill as appellee.

It is appellant’s contention the trial court erred in overruling and in not sustaining its plea of privilege. The appellee did not introduce his note signed by Sherrod but introduced the chattel mortgage given by Sherrod to appellee and also introduced the chattel mortgage given by Sherrod to appellant. Appellant’s mortgage was executed December 13, 1962, and properly filed for registration in Gray County on December 14, 1962, at 9:02 a. m. Ap-pellee’s mortgage was dated April 12, 1963, and was filed the same date. It is the contention of appellee that appellant did not have a lien upon the livestock described in appellee’s chattel mortgage since said livestock was not listed in appellant’s chattel mortgage. Appellant loaned Sherrod $45,-500 and took a chattel mortgage on 425 head of livestock and described them in detail and said mortgage further provided:

“Together with all of the increase of, from and to, the above described property, prior to the full payment of the indebtedness hereinafter referred to. Also all other cattle, sheep, hogs, horses and other livestock situated in said county aforesaid now owned, or that may be hereafter acquired, by said mortgagor, until this mortgage is released in full, save and except such livestock as may be herein especially reserved.”

We are of the opinion, and so hold, that description gave appellant a mortgage on all livestock owned by Sherrod located in Gray County superior to the mortgage claimed by appellee.

It was held by the Supreme Court of Texas in the case of First Nat. Bank of Wichita Falls v. First Nat. Bank of Chico, 155 Tex. 601, 290 S.W.2d 506, that that exact description was sufficient to cover the cattle involved. See also the cases there cited.

It will be noticed from this record there is no evidence that appellant took the livestock from Gray County as alleged by appellee or that it sold them. Sherrod testified the sheriff had a writ. Sherrod helped load the livestock but he didn’t know who took the cattle other than the sheriff. We might presume that appellant did have a writ properly issued but that is only presumption and not based upon evidence. When appellant filed its plea of privilege, that established its prima facie right to have the suit transferred to Donley County, the place of its residence and place of business, and the burden of proof was upon appellee to refute such prima facie right. Kasishke v. Ekern, Tex.Civ.App.1954, 278 S.W.2d 274 and the cases there cited.

Appellant’s point of error is sustained. The judgment of the trial court is reversed and judgment is here rendered ordering the cause of action alleged against The Donley County State Bank transferred to the District Court of Donley County. Rule 89; Jaques Power Saw Co. v. Womble, Tex.Civ.App.1947, 207 S.W.2d 206. Judgment of the trial court is reversed and rendered.


author: PHILLIPS, Justice.

text:
    Eileen Ann McKANNA, Appellant, v. Joe EDGAR, Jr., Appellee.
    No. 11207.
    Court of Civil Appeals of Texas. Austin.
    June 17, 1964.
    Rehearing Denied July 15, 1964.

      Dan Moody, Jr., John E. Clark, Austin, for appellant.
    Thomas E. Higgins, Austin, for appellee.
   PHILLIPS, Justice.

This case reaches us by Petition for Writ of Error filed by Eileen Ann McK.anna against Joe Edgar, Jr. seeking to set aside a default judgment against Petitioner. Arts. 2249, 2249a .and 2255, Vernon’s Ann. Civ.St.

Since petitioner’s mode of review is by way of Writ of Error constituting a direct attack upon the default judgment against her, the decisive question presented is whether there is error apparent on the face of the record which would vitiate the Trial Court’s order. Texaco, Inc. v. McEwen, Tex.Civ.App., 356 S.W.2d 809, error refused, n. r. e.

The plaintiff below, Edgar, filed a petition in the Trial Court alleging that the defendant, McKanna, resided in Orange County, California, had executed a note for $9,650 payable to the plaintiff in Austin, Texas, that the note was due and unpaid. The note had the usual provisions for interest and attorney’s fees and the plaintiff prayed that the court grant him judgment for the face value of note plus interest, attorney’s fees and costs.

The suit was filed in the District Court of Travis County, Texas in May of 1962.

In August of 1963, plaintiff had citation issue “To Eileen Ann McKanna, by serving Crawford C. Martin, Secretary of the State” and had the Secretary of State served, pursuant to the provisions of Article 2031b, V.C.S. A copy of the petition was mailed to the defendant by the Secretary of State of Texas by certified mail, and the return receipt indicates that same was delivered to her in California on August 17, 1963.

On September 9, 1963, plaintiff took a default judgment against defendant for the full amount of the note, plus interest, attorney’s fees and costs. Defendant had not filed an answer and did not appear at or participate in any way in the proceedings had on September 9.

The first appearance of any sort entered by defendant in the District Court of Travis County was on November 21, 1963, at which time she filed her Petition for Writ of Error as an appeal from the judgment of September 9, 1963.

Defendant below and appellant here is before us on four points of error. In her first two points appellant contends that the judgment must he vacated and set aside because the record fails to show that jurisdiction of the person of appellant has been obtained; that the judgment must be vacated and set aside because the record fails to show the existence of the conditions which, under the statute (Art. 2031b, V.C.S.), would permit service on appellant by serving the Secretary of State.

Appellant’s point of error number three is that the judgment must be vacated and set aside because the record reflects that the judgment was entered without jurisdiction of the person of the appellant having been obtained, and the entry of such judgment therefore denies appellant due process of law. Point of error number four attacks the constitutionality of Art. 2031b under the facts and circumstances of the case before us.

In the past, the authority of every Court was restricted to the territorial limits of the State in which it is established. Further, that its process could not run into another State and require a person domiciled there to answer to proceedings entirely in personam. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Hicks v. Sias, Tex.Civ.App., 102 S.W.2d 460, error refused.

Certain exceptions allowing substitute service have evolved from the general rules announced above and Art. 2031b is such an exception. While Art. 2031b applies to corporations, partnerships, joint stock companies and associations it also applies to natural persons who are nonresidents, such as appellant.

Art. 2031b applies to nonresident natural persons in four categories. The following three sections apply to natural persons and allow service through the Secretary of State as prescribed: Sec. 1 where the person is required by any statute of this State to designate or maintain one or more resident agents (or such person subject to Sec. 3 of this Act has not appointed or maintained a designated agent) and two unsuccessful attempts have been made on different days to serve same. Sec. 3 where the natural person engages in business in this State irrespective of any statute or law requiring an agent for service and does not maintain a regular place of business or designated agent upon whom service may be had. Section 6 where the natural person becomes a nonresident of Texas after a cause of action shall arise in this State but prior to the time the cause of action is mature by suit in a court of competent jurisdiction in this State when such person is not required to appoint a service agent in this State.

Section 2 of the act does not provide for service on the Secretary of State but states that when a natural person not required by any statute to designate or maintain an agent shall engage in business in this State, service may be had on whomever is in charge of the business in this State, provided that a copy of such process together with notice of such service upon such person in charge be sent to the defendant or to the defendant’s principal place of business.

We hold that the pleadings in the case, the citation and return are sufficient to invoke the court’s jurisdiction over the appellant and we affirm the judgment of the Trial Court.

Section 3 of the act makes the Secretary of State agent for service in causes of action arising out of business in this State “irrespective of any Statute or law respecting designation or maintenance of resident agents.” This section proceeds to state negatively, “and does not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State. * * * ”

Giving full effect to this negative language, it is our opinion that a legitimate inference might be .drawn from the petition that appellee did not maintain a place of regular business in Texas or a designated agent for service. Kelley v. First National Bank of Fort Worth, Tex.Civ.App., 270 S.W.2d 644.

There is no allegation in the petition that the appellant maintained a place of regular business in Texas. It is not alleged that such note was executed in Texas. Even so, it would hardly require the maintenance of a place of regular business to execute a single note. The very nature of the business transacted by appellant excludes the inference that she maintained a place of regular business in Texas or that she was engaged in any regular business and a contrary inference is compelled.

There is no pleading that appellant had designated an agent for service in Texas and no facts are alleged under which she was required, legally, to have designated such an agent.

We have carefully reviewed all statutes and all relevant rules of Civil Procedure and we can find no authority for a nonresident who has done business in Texas by executing a note payable in Texas to designate an agent in this State for service of process.

There is, of course, no lawful prohibition against one’s appointing a person to receive or accept service of process, Coffee v. Silvan, 15 Tex. 354; however, knowledge of such designation cannot be imputed to others. We hold that the negative requirements of Sec. 3 quoted above have reference only to agents who may be or are required to be designated by statute or rules of Court.

The citation in this case was directed to appellant “by serving Crawford C. Martin, Secretary of State” and the return showed service by serving Senator Martin, “as agent for service.”

The rule in Texas is that a citation return showing service on a defendant by serving his agent is sufficient, without proof of such agency, to warrant a default judgment against a nonanswering defendant, Employers’ Reinsurance Corporation v. Brock, Tex.Civ.App., 74 S.W.2d 435, writ dismissed, and authorities therein discussed. The rule is stated to be: “if judgment by default has been taken against a corporation, it can, either by motion or original suit, have the judgment set aside by proving that the person cited was not its agent or officer authorized by law upon whom service can be had. * * * ”

Mr. E. Wayne Thode in a very comprehensive article on In Personam Jurisdiction, 42 Tex.Law Rev., p. 279, states that where a plaintiff has filed his petition and has attempted to obtain jurisdiction over the defendant or his property pursuant to one of the Texas jurisdictional statutes, “ * * * There is no pleading burden on the plaintiff to allege jurisdictional facts, as such, * * * ”

Mr. Thode discusses the new rule of Civil Procedure 120a which permits a special appearance for the express purpose of questioning the jurisdiction of the court over the person of the defendant. If for some reason not apparent from the pleadings, citation and return, appellant sought to contest the jurisdiction of the court over her person, she had the burden of doing so and could have done so under the above quoted rule without making a general appearance. It has long been the rule in Texas that, in the absence of specific statute, the party pleading in abatement has the burden of proof. Robertson v. Ephraim, 18 Tex. 118, 119. (1850).

We hold that the affirmative provisions of Sec. 3 of the Act apply to the manner in which service was obtained on the defendant below and that the service had by the plaintiff below sufficiently complies therewith in all material respects.

Appellant’s points one and two are overruled.

Section 4, of Article 2031b is as follows:

“For the purpose of this Act, and without including other acts that may constitute doing business, any foreign corporation, joint stock company, association, partnership, or non-resident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State.”

We have no hesitancy in holding that the execution of the note in question payable in Texas brings the appellant under the above quoted provision as “doing business” in Texas. Whether appellant has 'been accorded due process under the Federal Constitution we cite the rule announced by the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) wherein the Court held that a state could obtain in personam jurisdiction over a nonresident defendant corporation doing interstate business if:

(1) proper notice was given to the nonresident defendant so that this aspect of due process under the fourteenth amendment was met, and if,

(2) the nonresident defendant’s activities within the state gave rise to the suit and met the following test.

“ * * * due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”

In McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223, the Supreme Court of the United States was presented a situation where a judgment in personam based on out-of-state notice was rendered against a defaulting Texas corporation by a California court. The California judgment was sued on in Texas, and the Texas courts denied full faith and credit to the judgment because of a lack of jurisdiction over the defendant. The court using the “minimum contacts” test of International Shoe, reversed the Texas courts and enforced the judgment. Here the contacts were few. Defendant mailed an unsolicited reinsurance agreement to the insured in California for his acceptance, and after acceptance sent premium notices to the insured in California, and received premium payments at defendant’s Texas office. The continuing expansion of the potential jurisdiction of each state over nonresidents was explained in the following language:

“Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents. In part this is attributable to the fundamental transformation of our national economy over the years. Today many commercial transactions touch two or more States and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.” Italics ours.

In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the Supreme Court of the United States denied a Florida resident in personam jurisdiction over a corporate Delaware trustee. Here, the trustee’s contacts with Florida consisted of correspondence which primarily involved remitting trust income to the donor who had moved to Florida after setting up the trust, and in making changes in instruments at the request of the donor in Florida. The Supreme Court held that there were not sufficient contacts for the Florida court to obtain jurisdiction over the nonresident trustee by out-of-state service. The court stated that unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum state:

“The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. * * * ”

We hold that the appellant by signing the note payable in Austin, Texas purposefully availed herself of making the place of payment in the forum state, thus invoking the benefits and protection of its laws. We overrule appellant’s third and fourth points.

Appellant complains that the process was sent by certified mail and not by registered mail as required by the statute. We overrule this contention as an immaterial deviation not invalidating the service.

The judgment of the Trial Court is affirmed.

Affirmed.

      . “Sec. 3. Any foreign corporation association, joint stock company, partnership, or non-resident natural person that engages in business in this State, irrespective of any Statute or law respecting designation or maintenance of resident agents, and does not maintain a place of regular business in this State or a designated agent upon whom service may he made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such foreign corporation, joint stock company, association, partnership, or non-resident natural person of the Secretary of State of Texas as agent upon whom service of process may he made in any action, suit or proceedings arising out of such business done in this State, wherein such corporation, joint stock company, association, partnership, or non-resident natural person is a party or is to be made a party.” Art. 2031b, Y.O.S.

      . Professor of Law, University of Texas.


author: RENFRO, Justice.

text:
    FIRST NATIONAL BANK IN GRAHAM, Texas, Appellant, v. W. B. FULTZ, Appellee.
    No. 16555.
    Court of Civil Appeals of Texas. Fort Worth.
    June 26, 1964.
    Rehearing Denied July 17, 1964.

      Cantey, Hanger, Gooch, Cravens & Scarborough, Edward L. Kemble and Emory Cantey, Fort Worth, for appellant.
    Jennings, Montgomery & Dies and Frank Jennings, Graham, for appellee.
   RENFRO, Justice.

The appellee, W. B. Fultz, as plaintiff, brought suit against First National Bank in Graham to recover the sum of $13,060 caused by defendant’s failure to credit to plaintiff’s account the total amounts of certain checks deposited to his account during the period from February, 1960 to April, 1963.

Both parties moved for summary judgr ment.

The court, after considering the pleadings, the depositions and supporting affidavit, rendered judgment for the plaintiff.

It is urged by defendant that fact issues existed as to whether plaintiff was negligent in failing to discover that his employee,. Mrs. McCoy, was withholding cash from deposits of checks in defendant’s bank.

Since the appeal is from a summary judgment, it is necessary to set out the evidence (in seven depositions) in detail.

Plaintiff, an oil operator, had been a depositor of the bank for about 39 years; had been a director since 1937 or 1938. In 1955 plaintiff acquired the “Anzac Properties” and opened an account in the Bank called the Anzac account. The money in the account was from the sale of crude oil for his interest in the Anzac properties and payments from other interest owners for their proportionate operating expense.

On the recommendation of his son Wilford, whom he had taken in as a partner or joint owner, plaintiff in 1955 employed Mrs. McCoy as general office girl, bookkeeper, stenographer and receptionist. She was the only office employee. She received the mail and the checks, made out the deposit slips and deposited the checks in the Bank.

On the hack of each check was rubber-stamped the endorsement: “Pay to the Order of The First National Bank, Graham, Texas, For Deposit Only, W. B. Fultz.”

In February, 1960, Mrs. McCoy made out the deposit slip for the amount of the checks to be deposited, but wrote on the slip, “less cash” a certain amount of money. She continued this practice until April, 1963, the amounts withheld ranging from $50 to $300 and in full to $13,060.

The general policy of the Bank was to require a depositor or anyone with authority to draw checks on a particular account to sign a signature card. Mrs. McCoy never signed a signature card. Plaintiff never gave her permission to check on the account, or withhold any amount when making deposits.

The Bank tellers never questioned her authority to withhold the amounts of the “less cash” items because they trusted both' plaintiff and Mrs. McCoy. On occasion she would tell the clerk or teller that Wilford needed money for traveling or other expenses.

In part she explained her method of operation as follows:

“Q — Now, Mrs. McCoy you kept the hooks, so with these cash withdrawals it would be necessary to do something in order to make the bank statements reconcile with your books. Would you state how that was accomplished and how that was done in order to make the books balance and reconcile with the bank statements ?
“A — Well, every month Wilford wrote ■counter checks for traveling expenses and various things, and I always totaled it up at the end of the month when I got the bank statements. I totaled those checks up and entered it in the check stubs in order to make the bank statements balance with the books.
“Q — Give us a specific example. Maybe it would be a little clearer for a given month. How would that be handled?
“A — I don’t understand what you mean.
“Q — Well, let’s say that during a given month you had made cash withdrawals of say $300.00. How would the books be fixed in order to cover that in dollars ?
“A — Well, if Wilford had wrote $250.00 in counter checks, I would put in the check book $550.00 which would include the $300.-00 cash which would be withdrawn.
“Q — I see. So that the check stub then would show the actual amount of money on deposit in the account at all times?
“A — Yes.”

■ Upon making a deposit she would place the duplicate deposit slips with the current bank statement in the front of the check-, book. The checkbook, statement and duplicate deposit slips were kept in an unlocked desk drawer in her office. There was nothing to prevent plaintiff from seeing and inspecting the deposit slips, but “they looked at the stubs instead of looking at the deposit slips.”

Plaintiff and son often discussed what plaintiff considered to be excessive expense accounts on the part of the son, but neither ever checked the canceled checks with the check stubs to determine why the expenses were so high.

Plaintiff testified he examined the bank statement every month — verified every check — looked at balance shown on statement, and checked monthly balance with the check stubs, but never did try to reconcile the canceled checks with the check stubs.

Nor did he compare them with the daily journal entries. If he had been on the alert he would have discovered something was wrong.

Although the son Wilford did not sign a signature card at the Bank, he wrote and signed checks on the Anzac account without objection from plaintiff. He agreed that there was nothing to prevent him from seeing the duplicate deposit slips.

Wilford Fultz had the same opportunity as the plaintiff to examine the journal, the statements and the deposit slips, but never did.

Mrs. McCoy wrote the checks but plaintiff signed all checks:

Plaintiff’s cause of action grew out of the alleged breach of the Bank of its contractual duty to plaintiff in the handling of plaintiff’s deposit account.

Plaintiff says, “More precisely, the inquiry is whether, under the peculiar facts of this case, the plaintiff owed the bank a duty to examine the duplicate deposit receipts and/ or other records not furnished by the bank to discover whether the bank deposited to plaintiff’s account the full amount of all checks presented and restrictively endorsed for deposit only.”

The law is well settled that there is a duty on a depositor to use reasonable care in examining his statement of account and canceled checks and to report errors to the bank with reasonable promptness. 8 Tex.Jur.2d 457, § 273; Southwest Nat. Bank of Dallas v. H. F. Underwood & Co., 120 Tex. 83, 36 S.W.2d 141 (1931). The reasons for imposing this duty on depositors are to provide the bank an early opportunity to recoup the loss from the wrongdoer and to prevent the bank from being misled into paying out money on forged or otherwise improper checks.

We find no Texas cases dealing with “less cash” situations as in the instant case.

The out of state cases of Mattison-Greenlee Service Corp. v. Culhane, 103 F.2d 608 (7th Cir. 1939); McKenzie & Mouk, Inc. v. Ouachita Nat. Bank, 159 So.2d 304 (La.Ct.App., 2nd Cir., 1963), are somewhat favorable to defendant’s position, while Rudisill Soil Pipe Co. v. First National Bank of Anniston, 224 Ala. 436, 140 So. 569 (1932), largely supports plaintiff’s position.

Because of differing fact situations we do not consider any of said cases authoritative of the situation confronting us in the instant case.

As pointed out by defendant, the plaintiff could have detected the wrongdoing of his employee Mrs. McCoy at any time during the approximately 3 year period by merely looking at the deposit slips, by making an examination of the deposits shown on his statement and comparing these amounts with those shown on his Anzac books of account, or a comparison of the total amount of counter checks written by Wilford and enclosed in the monthly statements with the check stubs would have disclosed the fraud.

In Atlas Metal Works v. Republic Nat. Bank, 176 S.W.2d 350 (Fort Worth Civ. App., 1943, ref. w. m.), it is stated: “But an examination of the statements and a comparison of the statements with the plaintiff’s books would at once have revealed that something was irregular about the account.”

Although the case of Weinstein v. National Bank of Jefferson, 69 Tex. 38, 6 S.W. 171 (1887). involves forgery, we think the law announced by the court is applicable to the instant case, towit: “The object of the statement of the account in the pass-book, and its return with the checks, is to apprise the depositor of the full state of his account as shown by the books of the bank, to th« end that he may verify it if it be correct, or detect its errors if it be found erroneous. The banker impliedly says to the depositor:' ‘This is my account. Examine it, and, if not found correct, report to me its inaccuracies.’ And should the latter fail to complain within a reasonable time, the banker would have the right to consider that there was no objection to it. By his failure to speak in proper time, he virtually admits the correctness of the items charged. It is now held that an estoppel may be created, not only when the party sought to be concluded knows the material facts he is charged with having represented or concealed, but also when he is ‘in such position that he ought to have known them, so that knowledge will be imputed to him.’ 2 Pom.Eq.Jur. § 809. Here it is the duty of the depositor to know whether the account is correct or not, and, promptly to report a forgery when detected. Should he negligently fail to make the examination and consequent discovery, (when he could have discovered it,) it is as if he had expressly admitted the genuineness of the checks, and he will not be permitted to deny the fact, provided the bank be prejudiced by his failure.”

In view of all the evidence we have concluded there was some evidence of negligence on the part of plaintiff and under authority of Weinstein v. National Bank of Jefferson, supra; Atlas Metal Works v. Republic Nat. Bank, supra; Southwest Nat. Bank of Dallas v. H. F. Underwood & Co., 120 Tex. 83, 36 S.W.2d 141; Fifth Nat. Bank of San Antonio v. Iron City Nat. Bank of Llano, 92 Tex. 436, 49 S.W. 368 (1899), defendant’s defense of negligence on the part of plaintiff should be, with appropriate issues and instructions, submitted to the jury or determined by the trier of facts.

We also sustain defendant’s point that a genuine issue of fact existed as to whether Wilford Fultz, plaintiff’s son, received all or part of the “less cash” withdrawals from Mrs. McCoy. Wilford was either a partner or joint owner with plaintiff. If he did receive the money plaintiff would not he entitled to recover from the Bank even though Mrs. McCoy was not authorized to withhold money when making deposits. Heusinger Hardware Co. v. First National Bank, 367 S.W.2d 710 (Eastland Civ.App., 1963, ref., n. r. e.).

The defendant’s tellers testified that sometimes when presenting a deposit slip with a “less cash” notation Mrs. McCoy would say Wilford needs money for traveling expenses or Wilford needs some expense money. Mrs. McCoy told an Internal Revenue Agent that she gave the money to Wilford; she also told an auditor the money was for Wilford. In her deposition she admitted she so told the Revenue Agent and the auditor. Her reason, she said, was to try to conceal her defalcation. She further testified Wilford got none of the money and did not know of her scheme. Mrs. McCoy and Wilford worked together before Wilford joined his father. He recommended Mrs. McCoy to his father. After her employment was terminated she gave Wilford’s name as a reference to prospective employers.

The trier of facts on the merits would probably find that Wilford got none of the money and knew nothing of the defalcation of Mrs. McCoy. Indeed, a contrary finding, under the present state of the evidence, might well be held to be against the great preponderance of the evidence.

In a summary proceeding, however, the trial judge cannot make a finding on contradictory evidence, or decide the credibility of a witness. Where the testimony of a witness is contradictory the judge must take it as he finds it and cannot judge the credibility of a witness to the extent of finding that some of his or her testimony was true and some untrue as he could in a trial on the merits.

Defendant has other points of error, but all, except the points on plaintiff’s alleged negligence and on the issue as to whether Wilford Fultz received any of the money, are overruled.

Reversed and remanded.


author: MURRAY, Chief Justice.

text:
    Harold G. SIMON et al., Appellants, v. William K. DIBBLE, Appellee.
    No. 14273.
    Court of Civil Appeals of Texas. San Antonio.
    June 10, 1964.
    Rehearing Denied July 15, 1964.

      Oliver & Oliver, John Hagy, Jr., San Antonio, for appellants.
    Bruce Waitz, Morris L. Collins, V. H. McFarland, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit presents the question of whether or not an insane husband who shoots and kills his wife, may receive the proceeds of insurance policies taken out by her with him as beneficiary, and whether or not he may inherit her share of the community property. On November 12, 1962, Orlando V. Dibble, Jr., while insane, shot and •killed his wife, Sabina Julia Dibble. She left two insurance policies in which he was •the beneficiary, and the insurance companies have paid into court the proceeds of these policies with the request that the court determine who should receive them. Article 21.23 of the Insurance Code, V.A.T.S., reads as follows:

“Art. 21.23. Forfeiture of Beneficiary’s Rights
“The interest of a beneficiary in a life insurance policy or contract heretofore or hereafter issued shall be forfeited when the beneficiary is the principal or an accomplice in willfully bringing about the death of the insured. When such is the case, the . nearest relative of the insured shall receive said insurance. Acts 1951, 52nd Leg., ch. 491.”

It is quite clear that under the provisions of this Article the husband who has willfully killed his wife cannot receive the proceeds of an insurance policy taken out by her with him as the beneficiary. However, a different situation is presented here. The husband is insane, and therefore not capable of willfully taking the life of his wife. Orlando V. Dibble, Jr., was tried for the murder of his wife, and was acquitted upon the ground that he was insane at the time he did so. Further, the parties here have stipulated that Dibble was insane at the time he killed his wife.

We find no case in this State passing directly upon the question, but there are authorities from other jurisdictions which we feel should be controlling on this question. Metropolitan Life Insurance Co. v. McDavid, District Court, Michigan, 1941, 39 F.Supp. 228; Eckardt’s Estate, 184 Misc. 748, 54 N.Y.S.2d 484; Eisenhardt v. Siegel, 343 Mo. 22, 119 S.W.2d 810; Holdom v. Ancient Order of United Workmen, 159 Ill. 619, 621, 43 N.E. 772, 773, 31 L.R.A. 67; Anderson v. Grasberg, 247 Minn. 538, 78 N.W.2d 450; 39 A.L.R.2d 493, § 9.

Appellants cite the case of Roberts v. Hayes, 284 Ill.App. 275, 1 N.E.2d 711, but that case is not in point and is distinguishable. from the case at bar because there was a wrongful death, and there was an action for damages in tort. While an insane person may be held responsible in damages for a wrongful tort, this is quite different from denying an insane killer the right to inherit from his wife, whom he has killed while insane.

The husband was the sole beneficiary under the will of his wife, but had there been no will, he would have been the sole heir of her property, so it makes no difference here whether her estate passes under her will or by the law of descent it goes to her husband.

The judgment of the trial court is affirmed.