author: HUGHES, Justice. ARCHER, Chief Justice HUGHES, Justice.

text:
    William F. STANSBURY, Appellant, v. LEGAL SECURITY LIFE INSURANCE COMPANY, Appellee.
    No. 11449.
    Court of Civil Appeals of Texas. Austin.
    Dec. 21, 1966.
    Rehearing Denied Jan. 11, 1967.
    Mullinax, Wells, Mauzy, Levy & Richards, Otto B. Mullinax, Dallas, for appellant.
    Douglas E. Bergman, by John W. Hicks, Jr., Dallas, for appellee.
   HUGHES, Justice.

This suit was by William F. Stansbury, appellant, against Legal Security Life Insurance Company to recover benefits alleged to be due under an agreement or binder receipt existing between the parties in connection with appellant’s application for a monthly disability income accident and health policy from appellee.

The trial court granted appellee’s motion for summary judgment.

The facts, about which there is no dispute, are these:

On June 14, 1964, appellee, through its agent, Harold Wynn, solicited from appellant an application for insurance entitling appellant to $400.00 per month if incapacitated from illness or injury during the term of the policy to be issued and subject to its provisions.

This application, duly executed by both parties, contained this agreement:

“AGREEMENT
I expressly agree on behalf of myself and any person who shall have or claim any interest in any policy issued on this application consisting of Parts 1 and 11 as follows: 1. All statements and answers contained herein (Parts 1 and 11 inclusive) are full, complete and true to the best of my knowledge and belief and are correctly recorded. This application, including Part 11 hereof, which Part 11 I agree to complete promptly as the Company may require, and any policy or policies issued in consequence thereof shall constitute the entire contract of insurance and the Company shall not be bound in any way by any statement, promises or information made or given by or to any agent or other person at any time unless the same be reduced to writing and submitted to the Company at its Home Office and made a part of such contract. Only the President, a vice President, a Secretary or an Assistant Secretary may make, modify or discharge contracts or waive any of the Company’s rights or requirements, and then only in writing. 2. The insurance hereby applied for shall not be considered in force until a policy shall have issued by the Company and said Policy manually received and accepted by me and the full first premium paid thereon, all during my good health; except that if the full first premium thereon is paid in advance to an authorized agent of the Company while I am in good health and the receipt detached from and bearing the same number as this application delivered, and the total amount of insurance applied for and now in force in the Company on my life does not exceed $10,000.00, and provided I am on this date a risk acceptable to the Company under its rules, limits and standards, on the plan, for the amount, and at the rate of premium declared paid, then the insurance in accordance with the provisions of the policy applied for shall commence on the date hereof. 3. The Company shall have sixty days from the date hereof within which to consider and act upon this application and if within such period a policy has not been received by me or if I have not received notice of approval or rejection, then this application shall be deemed to have been declined by the Company. 4. The Company is authorized to amend this application by an appropriate notation in the space designated ‘Home Office Additions or Corrections’ in order to correct apparent errors or omissions and in order to conform it with the form and content of the policy that may be issued. The acceptance of any policy issued on this application shall constitute an acceptance and ratification of any amendments made as contemplated above and of the beneficiary designation in such policy.
I HEREBY DECLARE that I have paid to the soliciting agent $- in cash, and that I hold receipt for the same made up without alteration on the receipt form detached from and bearing the same date and number as this application.
I hereby assent to the terms of such receipt.
Dated at DALLAS this 14 day of JUNE 1964
Witness: X /s/ William F. Stansbury
Agent Signature of Applicant
/s/ Harold E. Wynn
General Agent”

Appellant paid appellee the $24.00 premium on the day this agreement was executed and the receipt therefor was detached and delivered to appellant by Wynn, appellee’s agent who stated to appellant that he was insured from the minute that he paid over his money.

On June 16, 1964, appellant’s application and accompanying agreement were received by appellee from its agent. Appellee’s underwriter, Junell, decreased the amount of insurance applied for from $400.00 per month to $300.00 per month, and the premium from $24.00 per month to $19.50 per month. The underwriter made these changes on appellant’s application and on June 22, 1964, notified appellee’s agent Wynn of the changes made, and Wynn, on or about the same date secured the consent of appellant to the changes in his application.

Appellee actually issued and delivered in the afternoon or early evening of June 25, 1964, a policy to appellant in accordance with his application. This policy bore the effective date of noon June 25, 1964. Appellant was injured about 11 a. m. June 25, 1964.

Appellee takes the position that appellant applied for insurance intended to be effective as of June 14, 1964, for $400.00 per month disability income but that this application was rejected by the issuance of a policy calling for $300.00 per month disability payments at a reduced premium, effective at noon June 25, 1964, the legal effect of which is, as it states, “under the general rule of contract, such rejection of plaintiff’s offer and the subsequent counter offer by defendant terminated the insurance coverage provided by the receipt.” To support this view appellee cites Mutual L. Ins. Co. of New York v. Young’s Adm’r, 23 Wall. (U.S.) 85, 23 L.Ed. 152.

In that case a policy of insurance was issued not in accordance with the application but before its delivery and before the applicant knew of its issuance a loss occurred. The application provided that the insurance should be effective from its date “provided that said application shall be accepted by the said Company.” The court held there was no contract, no meeting of the minds. The Company did not accept the application, which it had the unconditional right to refuse, nor did the applicant accept the policy issued.

We do not consider this case helpful. Here, it is undisputed that appellee did accept the application, as amended. This fact is evidenced by the changes made in application by appellee and appellant’s assent thereto, and by the issuance and delivery of the policy to appellant in accordance with the amended application.

Of similar import is Mohrstadt v. Mutual Life Ins. Co., 115 F. 81 (8th C.C.A.Mo.). There the Company had the unconditional right to refuse the application for insurance. The Company issued a policy differing from the one applied for but before it was delivered and before applicant was aware of its issuance, he died. The Court held there was meeting of the minds since the applicant had not agreed to accept the policy issued and the Company had not agreed to issue the policy described in the application.

Kronjeager v. Travelers’ Ins. Co., 124 W.Va. 730, 22 S.E.2d 689, cited by appellee, is also a case where the minds of the parties did not meet.

Appellee cites Boswell v. Gulf Life Ins. Co., 197 Ga. 269, 29 S.E.2d 71, as fully supporting its position here. In fact, it refers to this case as a “white horse” case. We do not agree. There the receipt issued by the Company contained this provision: “If the application is accepted and a policy issued, this sum will be applied toward payment of the premiums thereon. If the application is rej ected the amount will be returned subject to the conditions of this receipt hereof. No obligation is incurred by said company unless and until a policy is issued and delivered while the life proposed is alive and in sound health. Except that if the life proposed is in sound health at the date hereof and the amount paid at the time the application is written is not less than five weekly premiums and this receipt bearing the date of the original application showing such payment is surrendered to the company, the company agrees, if the application is approved at the home office in Jacksonville, Florida, that, should death occur prior to the issue of the policy and within eight weeks from the date of the application, it will pay such amount as would have been due under the policy, if issued.”

The applicant in Boswell died before delivery of the policy. We quote from the opinion, “The plaintiff introduced a receipt issued by the company’s agent on July 31, 1942, for one weekly premium ‘on account of the application for insurance in the Gulf Life Insurance Company’ ”. (Italics added.)

It is obvious that the applicant in Boswell did not activate the provision for temporary insurance. He paid only one weekly premium when the payment of at least five were required in order to obtain temporary insurance. Otherwise, the application plainly provided that in order for the Company to be liable the policy must be issued and delivered while the person to be insured was alive and in sound health.

Appellee also cites as being on “all fours” with this case the case of New York Life Ins. Co. v. Levy’s Adm’r, 122 Ky. 457, 92 S.W. 325, (Ky.Ct. of Appeals). Here, the application was for two policies, each for $5,000.00. The Company accepted the application for one policy and after its issuance but before it was delivered, the applicant died. The Court held that the counter offer by the Company of one $5,000.00 policy had not been accepted by applicant and there was no contract of insurance between the parties. A dissenting opinion in this case is, in our judgment, worthy of careful consideration.

Also cited by appellee as supporting its position is State ex rel. Equitable Life Assurance Soc. of United States v. Robertson, 191 S.W. 989, (Sup.Ct.Mo.). This was a case in which the Company issued to the applicant a receipt which provided that the insurance should be effective from its date provided the applicant on such date was, in the opinion of the Company, “an insurable risk under its rules and the application is otherwise acceptable on the plan and for the amount applied for * * * ” The premium fixed in the application and paid was $111.25. The Company accepted the application but advanced the age of applicant for rate purposes and fixed the premium at $137.55. Applicant died before accepting this change in his application. The Court held there was no contract since the counter offer by the Company was not accepted.

Appellee states in its brief, “ * * * we do not contest that the receipt did not provide temporary insurance, but what we do contend is that the coverage afforded by the receipt was terminated upon the rejection of plaintiff’s (appellant’s) application.”

We need not determine whether appellant had temporary insurance prior to the amendment of his application as no loss had theretofore occurred.

It is our opinion that appellant had temporary insurance after the amendment of his application by appellee and the approval of such amendment by appellant according to the application, as amended, and to the terms and provisions of the agreement quoted above.

All of the authorities relied upon by ap-pellee are cases in which the Courts held that since the minds of the parties had not met on all terms essential to the formation of a contract, no contract resulted. This is elementary contract law.

There was a meeting of the minds of the parties here; hence, there is a contract.

That the application could be amended was written into the agreement. While the agreement provided that acceptance of a policy pursuant to an amended application would constitute a ratification of the amendments there is no reason to hold that such method of ratification was exclusive, and appellee does not so contend.

The agreement and application, as amended, and all their relevant provisions must be given effect. This means that appellant must prove by a preponderance of the evidence that on June 14, 1964, he was in good health and a risk acceptable to appellee under its rules, limits and standards, on the plan, for the amount, and at the rate of premiums paid as agreed.

As evidence, but not conclusive evidence, of these facts is the issuance of the policy by appellee.

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

ARCHER, Chief Justice

(dissenting).

I dissent.

The court did not err in sustaining the motion for summary judgment. I do not find any evidence of a contract of insurance in effect between the parties at the time of plaintiff’s injury, and that as a matter of law the trial court correctly held that there was no genuine issue of material fact existing between the parties.

The policy issued by the insurance company was on terms different from those offered by plaintiff in his application, and was a counter offer.

The policy was delivered to appellant on the afternoon or early evening of June 25, 1964, and bore an effective date of 12:00 o’clock noon, June 25, 1964, which effective date was one hour subsequent to the claimed injury.

In order for a contract to come into being between two parties, the acceptance of an offer must be identical with the offer, without variance.

6 R.C.L., p. 608, Section 31.

Republic Nat. Life Ins. Co. v. Hall, 149 Tex. 297, 232 S.W.2d 697 (1950).

In Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660 (1949), it was held:

“No public policy is violated by a contract between an insurance company and an insured whereby premiums are to be paid from the effective date of the policy rather than the date of its delivery, even though the effect thereof is to charge a premium for a period when the insured has no protection. * * * ”

United Founders Life Ins. Co. v. Carey, 363 S.W.2d 236 (Tex.Sup.1962).

This Court, opinion by Associate Justice Phillips, dissenting opinion by Associate Justice Hughes, in Legal Security Life Ins. Co. v. Ward, 373 S.W.2d 693 (Tex.Civ.App. Austin 1963, no writ), stated this proposition as follows:

“When the defendant company attached the riders excluding the various illnesses mentioned above to the policies in question it was not issuing plaintiff the policies applied for. A qualified or conditional acceptance is a counter offer. Springfield Fire & Marine Ins. Co. v. Hubbs-Johnson Motor Co., Tex.Com.App., 42 S.W.2d 248.”

ON MOTION FOR REHEARING

HUGHES, Justice.

We quote the following from appellee’s motion for rehearing: “Appellee does not contend that appellant was merely advised of the reduction in coverage, not in the reduction of the premiums by the Agent, Harold E. Wynn, at the time of the purported conversation on June 22, 1964, as stated at the beginning of the footnote on Page 3 of this Court’s opinion.”

We correct our opinion accordingly.

The motion is overruled.

      . The policy is styled, “Legal Security Income Policy.

      . Appellee asserts that ■ appellant was merely advised of the reduction in coverage, not of the reduction in the premium. We disagree. We quote the relevant testimony of appellant:
      “Q Now, I hand you this Exhibit 1 again, this policy application. You applied for a — what, four hundred dollars a month disability?
      A That’s what he wrote it, yeah.
      Q And the policy as issued was three hundred dollars a month disability?
      A Right.
      Q Is that right?
      A Right.
      Q So, the policy was not issued in the amount that you applied for?
      A But yeah, he came back and told me before the policy was issued that the company wouldn’t go for it on account of the work that I did.
      Q When did he come back and tell you that?
      A Less than a week after he wrote it.
      ⅝ ⅛ ⅜ ⅝ ⅜:
      Q —this has four hundred dollars on it and has been marked through, is the reason I say that.
      A Yeah, well, that’s probably the same, because he came back and told me about it. He was supposed to give me nine dollars and something in change, you know what I mean, on it.

        Q The premium was reduced. It looks like you applied for four hundred dollars a month at twenty-four dollars—
      A Now, he’s the one that, you know, was sittin’ and talkin’ about it.
      Q —was the first premium and then the premium was reduced to—
      A Three hundred.
      Q Well, the amount of coverage was reduced—
      A Yeah.
      Q —from four hundred to three hundred and the first or initial premium was reduced from twenty-four dollars to nineteen dollars and fifty cents.
      A Right.
      Q So, you had six — five dollars credit, around that.
      A I didn’t get it.
      Q You didn’t get it?
      A No.
      Q Was it applied to the policy or—
      A No, I don’t know.
      Q —do you know what happened to it?
      A But I never did get my change.
      Q You never did get your change back. When do you say he came back and talked to you?
      A I believe it was—
      Q If it had been on June the 14th, the policy application, I think you said it was about a week later.
      A Something like that; I am not sure, but I believe it was just about a week. It may not have been.

      Q And what did he ask you at that time?
      A He didn’t ask me anything; he just told me, he said that the company had reduced the policy down, and I said, ‘That’s all right with me, Harold.’ And I said, ‘It doesn’t make any difference.’
      Q And he said the company had reduced the policy down—
      A To three hundred.
      Q —from four hundred to three hundred?
      A Three hundred.
      Q And you said it was all right?
      A It didn’t make any difference.”

      . See Allis-Chalmers Mfg. Co. v. Curtis Electrical Co., 153 Tex. 118, 264 S.W.2d 700, where it was held that only “a substantial meeting of the minds” was required to formulate a contract.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    MARYLAND CASUALTY COMPANY, Appellant, v. Harry SPRITZMAN, Appellee.
    No. 14802.
    Court of Civil Appeals of Texas. Houston.
    Dec. 1, 1966.
    On Rehearing Jan. 5, 1967.
    Rehearings Denied Jan. 26, 1967.

      Butler, Binion, Rice, Cook & Knapp, James E. Crowther, Houston, for appellant.
    Frank T. Abraham, W. James Kronzer, Houston, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for ap-pellee.
   WERLEIN, Justice.

The principal question in this case is whether the appellee, Harry Spritzman, is entitled to benefits under the extra-territorial provisions of the Texas Workman’s Compensation Law for an automobile accident which occurred in England. The jury found that appellee was hired in Texas by Service Life Insurance Company, sometimes called Service Life, in November of 1958; that appellee, after being hired by said company, did not do any work for it before leaving the State; that at the time of receiving his injuries on October 2, 1959, appellee was out of the State of Texas incident to his employment for said company; that appellee was mentally or physically incapacitated to file a claim for compensation after the date of his injury for a period of fifteen months. The trial court, disregarding the jury’s answer that appellee did not do any work for Service Life in Texas before leaving the State, entered judgment n. o. v. in favor of appellee.

Appellant contends that the trial court erred in failing to hold as a matter of law that appellee did not occupy the status of a Texas employee at the time of his accident, and erred in entering judgment disregarding the jury’s finding that appellee did no work in Texas for Service Life Insurance Company. Appellant further asserts that the findings of the jury that appellee’s injury was sustained in the course of his employment for Service Life and that the hiring of appellee took place in 1958 are so against the great weight and preponderance of the evidence as to he clearly wrong and unjust.

The evidence shows that appellee resided in Texas from 1952 until August of 1958, at which time his former employer, Bankers Life & Casualty Company, transferred him to its St. Petersburg office in Florida. At that time he applied for and obtained a Florida insurance license and relinquished his Texas license to sell insurance. He was relicensed by Texas in January of 1959. Appellee’s first conversation with Service Life was at its home office in Fort Worth in May of 1958. Appellee testified that in the first part of November, 1958, he decided to accept employment with said company and so orally notified by telephone Mr. Goldsmith, the company’s representative in the company’s home office at Ft. Worth; that at the time of his acceptance he was in Houston, Texas, and at the time of the letter of November 28, which was mailed from Florida, appellee was already employed by said company. The accident occurred on October 2, 1959, which was within one year of the time that appellee left Texas for Europe. Article 8306, Sec. 19, provides as follows:

“If an employee, who has been hired in this State, sustain injury in the course of his employment he shall be entitled to compensation according to the Law of this State even though such injury was received outside of the State, and that such employee, though injured out of the State of Texas, shall be entitled to the same rights and remedies as if injured within the State of Texas. * * *

it ‡ ⅜ ⅝

“Providing that such injury shall have occurred within one year from the date such injured employee leaves this State; and provided, further, that no recovery can be had by the injured employee hereunder in the event he has elected to pursue his remedy and recovers in the state where such injury occurred.”

We sustain appellant’s assignment that the trial court erred in disregarding the jury’s finding that appellee did no work in Texas for Service Life before leaving Texas, since there was ample evidence in support of such finding. Rule 301, Texas Rules of Civil Procedure; Leyva v. Pacheco, 1962, 163 Tex. 638, 358 S.W.2d 547; Burt v. Lochausen, 1952, 151 Tex. 289, 249 S.W.2d 194.

After carefully reading the statement of facts and examining all exhibits introduced in evidence, we have concluded that we cannot say that the findings of the jury that appellee sustained his injury while in the course of his employment for Service Life, and that the hiring of appellee took place in 1958, are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Appellee testified that his wife’s father had a very severe heart attack in August, 1958, and that appellee’s wife and children went to Florida to take care of him; that he sold his home in Houston and would commute from Houston to Florida and back; and that in the latter part of 1958 he went to work for Service Life; that he wanted to continue to work for Bankers Life through December 27, 1958 in order to be eligible for a bonus from such company. He admitted that he told Mr. Goldsmith that he could not start with Service Life until after that time. He further testified that in November he did some work for Service Life at Ellington Air Force Base in Harris County, Texas. The jury, however, upon ample evidence, found that he did no work for Service Life prior to leaving Texas.

The evidence shows that appellee’s first contact with Service Life was in May, 1958, when he had a four-hour meeting with Mr. Goldsmith at the company’s home office in Fort Worth, Texas. On November 28, 1958, appellee while in Florida wrote a letter to Mr. Goldsmith, which appellant contends was an acceptance of the offer made appellee to work for Service Life. This letter reads:

“Confirming Joe’s conversation with you regarding my going to England to represent the company, I can assure you that this is something that I have been looking forward to and appreciate all your considerations. If you will mail the proper papers to me, I will process them and return them immediately by return mail.”

This letter possibly could be construed as an acceptance of an offer of employment, and a request for the proper papers to be executed by appellee. However, the postscript to such letter reads as follows: “If you recall, I had the papers but after moving here have misplaced them.”

It is our view that the postscript shows that prior to November 28, 1958 appellee had been furnished papers for execution and process. From this statement it could be inferred that appellee had entered into a contract with appellant for overseas service prior to November 28, 1958. In any event, this seems to corroborate appellee’s testimony that at the time he wrote the letter of November 28, 1958, he was already employed by Service Life. He also testified positively that he was in Texas just prior to writing the letter of November 28, 1958, which was mailed in Florida, and that he thinks the definite time of his employment was the beginning of November, 1958. He further testified that he made at the most three trips to Texas in November, 1958, each trip being for a few days, and that the firm deal of his employment was made between him and Service Life for employment the first or second week of November, 1958, at which time he was in Houston. He also testified that at such time he had not planned or decided to have a fixed or permanent place of residence in Florida.

The written deposition of appellee taken in 1963 when he was a patient in a New York hospital, confirms appellee’s contention that he was in Texas when he accepted employment. The fact that he was still employed at such time by Bankers Life and did not resign from such employment until January, 1959, does not establish that his contract with Service Life was not entered into the first or second week in November, 1958 to begin work the following January after resigning from Bankers Life. In his deposition he testified that he advised Mr. Goldsmith that he was accepting Mr. Goldsmith’s offer of employment, and “would shortly leave for Florida to prepare for work overseas.” Since the evidence shows that appellee was not in Houston from November 28, 1958 until going overseas, the statement in the deposition corroborates appellee’s testimony that the contract of employment with Service Life was made in Houston prior to the time the November 28, 1958 letter was mailed in Florida.

The evidence is undisputed that appellee was in an automobile accident in England on October 2, 1959 while enroute from an air force base in England to an air force base in Scotland for the purpose of soliciting applications for insurance policies in Service Life, and that he sustained devastating injuries. It is our view that the evidence amply sustains the jury’s finding that appellee was at such time acting within the course of his employment with Service Life. Indeed, although appellant has a point in its brief to the effect that the finding of the jury that appellee was acting within the course of his employment is against the great weight and preponderance of the evidence, it has not briefed such point and hence has waived it. Saldana v. Garcia, 1956, 155 Tex. 242, 285 S.W.2d 197.

Article 8306, Sec. 19, Vernon’s Ann. Tex.Civ.St, provides in substance that an employee hired in this State shall be entitled to compensation according to the law of this State even though such injury is received outside the State, and shall be entitled to the same rights and remedies as if he were injured within the State, provided the injury occurs within one year from the date such employee leaves this State, and provided further that no recovery can be had in the event the employee has elected to pursue his remedy and recover in the state where the injury occurred. In the instant case the injury occurred within the one year period of limitation provided and there is nothing to show that appellee elected to pursue his remedy, if any he might have had, where the injury occurred. Our courts have engrafted upon the above statute the provision that in order to recover for injuries sustained out of this State, the injured employee must show that he had the status of a Texas employee. The statute merely requires that the employee be hired in this State. The evidence shows that appellee was hired in this State to solicit overseas applications for insurance policies in Service Life which was domiciled in Fort Worth, Texas. This poses a serious question as to whether ap-pellee did have the status of a Texas employee at the time of his injury.

Appellant urgently contends that under the authorities in Texas appellee did not have the status of a Texas employee, since his contract of employment did not contemplate that he do any work within the State of Texas either before going overseas or after returning to this country. Appel-lee testified that he expected to stay abroad for two years. He was not just incidentally or temporarily out of the State. There is no evidence to the effect that he would work for his employer in Texas after his return to the United States. Among other cases relied upon by appellant is Southern Underwriters v. Gallagher, 1940, 135 Tex. 41, 136 S.W.2d 590. In that case Gallagher was employed by a drilling company to work on a rig in New Mexico. He testified that he had been promised in connection with his contract of hire that he would be later used in connection with Texas drilling. The Supreme Court, citing Texas Employers’ Insurance Ass’n v. Volek, Tex.Com.App., 69 S.W.2d 33, and Fidelity and Casualty Company of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955, held that the contract for employment in New Mexico, even though entered into in Texas, did not create the status of a Texas employee when he was injured in New Mexico. As to the promise of subsequent employment, the Court said: “At most, it was a mere promise to make him a Texas employee at some time in the future.” The Court also stated:

“The test is: What was the status of the employee at the time of injury with regard to being a Texas employee? If, at such time, he occupied the status of a Texas employee, he is entitled to protection under our Compensation Statutes, even though he was working out of the state. On the other hand, if the employee is hired or contracted with in this state to go out of this state to perform labor or services, he cannot claim protection under our Compensation Law merely because the contract was made or entered into in this state. Also, if a person is hired to work in this state,- — that is, if, under the contract of hiring, such person becomes a Texas employee in the sense that it is contemplated that his services are to be rendered in this state, such employee is protected by our Compensation Law, even though he is first sent incidentally or temporarily out of the state to perform labor or services, and the mere fact that such employee performs his first services out of this state will not defeat his right to protection under our compensation statutes. In any event, before the statute under consideration can be applied in favor of an employee injured out of this state, it must be shown that he occupied the status of a Texas employee before leaving the state. Also, it must be further shown that while occupying such status he was incidentally or temporarily sent out of the state by the Texas employer to perform labor or services for such employer.”

The case of Texas Employers’ Insurance Ass’n v. Dossey, Tex.Sup.1966, 402 S.W.2d 153, does not change the test as enunciated in Gallagher. In the Dossey case the Court said:

“An employee has the status of a Texas employee when he has been hired in this state to work in this state and in another state as the circumstances of his employer may require. His Texas employee status is fixed in the fact of his employment to work in Texas as well as in the other state. He continues to occupy this status even though he first works in the other state.”

In other words, the court held that it was not necessary that the employee first work in Texas. It is still necessary, however, that the employee be hired in this State to work in this State and in another state as the circumstances of his employer may require. See also Jordan v. Standard Accident Insurance Co., Tex.Civ.App.1960, 339 S.W.2d 267.

Appellee asserts that the following facts established by the evidence show that appel-lee did have the status of a Texas employee: “(1) Spritzman was a transient Texas workman — traveling from military base to base; (2) he was hired in Texas by a Texas employer; (3) he was working out of a ‘Texas base of operations’ in Fort Worth; (4) he regularly reported and was in contact by mail, telephone and wire with the home office; (5) the home office furnished all of his forms, manuals and supplies, etc.; (6) he was operating in Europe under a ‘Texas’ license to sell life insurance; (7) the fruits of his work, the issuance of policies of life insurance, and the other incidents of his employment were consummated in Texas; and (8) he received his pay in advances from the home office and would, of course, wire them to send money to his wife in Florida.” To the foregoing incidents of appellee’s employment status may be added the fact that in August and September, 1959, the company withheld social security dues from the commissions earned by appellee, pursuant to the social securities benefits form signed by appellee when he went with the company.

The Supreme Court in stating that the contract of employment for hiring must contemplate work in this State and in another State, makes no distinction between the situation where the contract of employment contemplates work out of the state at a fixed and definite place, and the situation where the employment contract contemplates work out of the state in various states or countries. In each of the cases cited by appellant the employee was hired to engage in work at some fixed location out of the State of Texas. Appellee strenuously contends that such fact distinguishes the instant case from those cases decided by our Supreme Court since in the instant case the employee was not employed to work at any fixed place overseas, but to engage overseas in securing applications for life insurance policies at air force bases in various countries. The jury found that at the time of his injury appellee was out of the State of Texas incident to his employment for Service Life. The evidence shows that appellee, who was a traveling insurance agent working out of the company’s home office at Fort Worth, traveled in England, Germany, Spain and Morocco, and hence could be classified as a transient employee with no fixed place of work overseas.

Appellee cites three Texas cases involving extra-territorial coverage of out of state transient employees where recovery was allowed. It is our view that these cases are distinguishable from the instant case. In Texas Employers Ins. Ass’n v. Robertson, Tex.Civ.App., 137 S.W.2d 836, writ dism., judg. cor., Robertson was employed as an advertising solicitor, to sell advertising space in a publication of the Texas Farm & Ranch Publishing Company. Robertson’s residence and place of operation were in Texas. The territory assigned to him consisted of Ohio, Michigan and Indiana, where products handled by Texas retailers were manufactured. To familiarize himself with the duties to be performed, Robertson immediately on his employment went through a course of training and preparatory work in the State of Texas, and thereafter was set to Detroit, Michigan, and other places to contact heads of firms and interest them in his employer’s advertising medium depicting the scope and value of their products handled in Texas. His contract required him to return to Texas at intervals, preparatory to a better understanding of the needs of Texas concerns, and be better fitted to contact heads of firms in northern states. He was brought back to Texas many times to attend sales meetings and make business surveys in various sections of Texas. He remained in Texas three or four weeks in November and December, 1936 doing necessary work under the direction of his employer and in the course of his employment. Within one year after leaving Texas in October, 1957 he was killed in Michigan. Obviously Robertson’s employment included work in Texas as well as in the territory assigned to him in the States of Ohio, Michigan and Indiana.

In the recent case of Pennsylvania National Mutual Casualty Ins. Co. v. Nathan, 5th Cir.1966, 361 F.2d 18, Nathan was hired in Dallas, Texas as a traveling salesman and assigned a territory consisting of several other states. Immediately upon employment he entered a training program in Dallas which lasted several weeks. Upon completion of his training he left Dallas to begin his duties in his five-state territory. He remained under the general supervision of the Dallas office, and was required to return to Dallas for markets held four times during each year. The court held that the facts of the case were sufficient to support the jury’s finding that Nathan was a Texas employee at the time of the accident. In the footnote to such case it is stated: “Ordinarily the Texas courts have required for recovery under this section only a showing that the injury occurred within one year from the date of leaving Texas and that the injured employee did in fact do some work for his employer in Texas before leaving.” (citing a number of cases)

In Traders & General Insurance Co. v. Collins, Tex.Civ.App., 321 S.W.2d 178, writ ref., n. r. e., the evidence showed that the employee worked in Texas as well as in other states. We have not found nor been cited to any Texas case which would permit a recovery under the'Texas Workman’s Compensation Act under the facts of the instant case where no work was done in Texas and where it was never contemplated that any work would be done in Texas by the injured employee.

Appellee cites a number of cases in other jurisdictions in support of his contention. In Prendergast v. Industrial Commission of Ohio, 1940, 136 Ohio St. 535, 27 N.E.2d 235, 238, the Court said:

“Where an Ohio employer enters into a contract with a person to perform transitory work outside of this state, without specification as to the exact location or nature of the work, such as that of a traveling salesman, there is no good reason why such person should not have coverage under the Ohio Workmen’s Compensation Act. On the contrary, there is a good reason why such employee engaged in such transitory employment outside the state should have such coverage, and that is because he is generally not entitled to compensation in the foreign state under such circumstances even though he suffers an accident there.”

New York distinguishes between workers employed in New York to perform transitory work out of the state and those employed to work at a fixed place. In Cameron v. Ellis Construction Company, 252 N.Y. 394, 169 N.E. 622, 624 (Ct.App.1930), the court said:

“Where a workman employed in work here is called upon, in the course of his employment, to perform transitory work outside of this state, the employment as a whole remains an employment here. It is otherwise when the workman is employed to work at a fixed place or places outside the state.”

If a claimant is hired in New York to work in a fixed employment in another state, he cannot collect under the New York Act, even though New York was the place of hiring, but if the claimant reports his orders to and from New York and receives his instructions there, receives his pay from New York and sends his orders to that state, although never physically in New York, he can recover compensation under New York law provided the out of state work is transitory. Baduski v. S. Gumpert Company, 1951, 277 App.Div. 591, 102 N.Y.S.2d 297, and Lewis v. Knappen Tippetts Abbett Engineering Co., 1952, 279 App.Div. 1107, 112 N.Y.S.2d 79. See also Restatement of the Law, Conflict of Laws, Sec. 398; Foley v. Home Rubber Company, 1917, 89 N.J.L. 474, 99 A. 624; Commercial Casualty Ins. Co. v. Industrial Acc. Com’n, 1953, 116 Cal.App.2d 901, 254 P.2d 954; Hubbard v. Midland Constructors, Inc., 1964, 269 Minn. 425, 131 N.W.2d 209; Bradtmiller v. Liquid Carbonic Co., 1928, 173 Minn. 481, 217 N.W. 680.

In Texas no such distinction has been drawn. Our Supreme Court has stated in unmistakably clear language in Gallagher and Dossey, supra, that in Texas an employee’s status is fixed in the fact of his employment to work in Texas as well as outside of Texas. Furthermore, it must be shown that while occupying the status of a Texas employee, the claimant was incidentally or temporarily sent out of the State by the Texas Employer to perform labor or services for such employer. In the instant case neither of such prerequisites is present.

Appellant asserts that the jury’s finding that appellee was mentally or physically incapacitated to file a claim for compensation for a period of 15 months after his injury, is against the great weight and preponderance of the evidence. We have carefully read the statement of facts and overrule this assignment. We hold also that if appellee were entitled to workman’s compensation benefits, he would also be entitled to medical expenses, especially in view of the stipulation entered into between the parties.

Judgment of the trial court reversed and rendered.

On Motion for Rehearing

In his motion for rehearing ap-pellee, among other things, asserts that this Court erred in failing to remand the cause for further development pursuant to Rule 434, T.R.C.P., for the reason that substantive changes in the applicable law occurred between the time of trial and the time our opinion was handed down December 1, 1966. Subsequent to the trial of the case, the Supreme Court of Texas, on March 30, 1966, handed down its opinion in the case of Texas Employers’ Insurance Ass’n v. Dossey, 402 S.W.2d 153, in which for the first time our Supreme Court used the following succinct and definite language :

“An employee has the status of a Texas employee when he has been hired in this state to work in this state and in another state as the circumstances of his employment may require. His Texas employee status is fixed in the fact of his employment to work in Texas as well as in the other state. He continues to occupy this status even though he first works in the other state.”

In our opinion we made the statement that Dossey did not change the test enunciated in Southern Underwriters v. Gallagher. We have concluded since reexamining the Supreme Court’s opinion in Hale v. Texas Employer’s Ins. Ass’n, 1951, 150 Tex. 215, 239 S.W.2d 608, at 614, that such statement is incorrect. The Supreme Court said in Hale:

“It is settled by Southern Underwriters v. Gallagher, 135 Tex. 41, 136 S.W.2d 590, that one who has not in fact done any work in Texas for his employer before being hired to work in another state cannot be said to have acquired the status of a Texas employee and is not entitled to the benefits of the statute.”

Thus, the holding in Hale and Gallagher is to the effect that in order to recover as a Texas employee work in Texas must have preceded work in the foreign jurisdiction. This is not so under the holding in Dossey.

As in the Dossey case, appellee in this case asserts that he based his trial position upon the proposition that the Gallagher and Hale cases were controlling and that it was, therefore, necessary to establish the performance of physical work in Texas prior to the injury in the foreign jurisdiction. Thus evidently relying on the decisions in Gallagher and Hale, appellee undertook to prove not only that he entered into his contract with appellant in Texas, but also that he performed work in Texas for his employer prior to his overseas work. The jury, in answer to Special Issue No. 6, found that appellee performed no work in Texas prior to going overseas. No issue was requested by either party with respect to whether under his employment contract appellee was hired to work in Texas as well as overseas. Some such issue would in all probability have been submitted had Dossey been decided before the trial of the instant case.

Although the jury found that ap-pellee did no work in Texas prior to going overseas, we cannot assume that he would not have been requested by his employer at some time during his employment to return to Texas and engage in this State in work incident to his employment. Appel-lee’s contract was oral and was proven more or less piece-meal. There is no evidence that the oral contract as testified to was the entire contract. At the time of the trial appellee would not have considered it necessary or important to prove anything with respect to employment in Texas subsequent to his work overseas, since the test established in Dossey had not been established. It was only natural that ap-pellee’s counsel, relying on Gallagher and Hale, should make no effort to establish whether or not the oral employment contract encompassed work in Texas at some subsequent date, since under the state of the law at the time of trial such subsequent work, if any, would have been immaterial and irrelevant.

A situation quite similar to that in the instant case developed recently in the case of Scott v. Liebman, Tex.Sup.1966, 404 S.W.2d 288, p. 294. In that case the defendant relied upon a holding of the Supreme Court of Texas that the “no duty” rule could be submitted to the jury on the theory of constructive knowledge of the invitee, as held in McKee, General Contractor v. Patterson, 1954, 153 Tex. 517, 271 S.W.2d 391. The Supreme Court reversed itself in Halepeska v. Callihan Interests, Inc., 1963, 371 S.W.2d 368, and held that “constructive knowledge” was no longer material to the “no duty” rule. Recognizing this change in the law, the Supreme Court reversed and remanded the Scott case for further development consistent with the new rule, in the interest of justice.

By analogy, we have concluded in view of the change in the law as announced in the Dossey case, and the definite and specific test enunciated with respect to the status of a Texas employee in connection with extra-territorial work, it would be in the interest of justice for this Court to remand the present case for further development in light of the new rule established in Dossey.

Appellee’s motion for rehearing is granted in part.

Reversed and remanded.


author: MURRAY, Chief Justice.

text:
    Daphine Whitton WINKLER et vir, Appellants, v. Hazel Whitton PITRE, Individually and as Independent Executrix et al., Appellees.
    No. 14542.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 30, 1966.
    Rehearing Denied Jan. 25, 1967.
    Cox, Smith & Smith, San Antonio, Smith, Hall & Huffman, Ernest F. Smith, Marshall, for appellants.
    Jack F. Ridgeway, Eugene P. Toscana, San Antonio, for appellees.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Bexar County by Hazel Whitton Pitre as Independent Executrix of the Estate of Lela Whitton Hegarty, Deceased, seeking a judicial construction of the last will and testament of Lela Whitton Hegarty. Plaintiff’s original petition named as defendants Robert Benjamin Whitton, Eugene Alfred Whitton, Kerry King Whitton, Daphine Whitton Winkler and her husband, William Winkler, Sarah Anne Whitton Ravey and her husband, Hubert Ravey, Martha Whitton Martin and her husband, Sam Martin, Edward N. Whitton, Gloria Jane Whitton Drummond and her husband, Robert V. Drummond, Sally Whitton Orr and her husband, William F. Orr, and Hazel Whitton Pitre, individually, and her husband, John H. Pitre. Prior to the trial an order was entered realigning the parties so that Hazel Whitton Pitre, individually and as independent executrix, and all of the original defendants, except Daphine Whit-ton Winkler and her husband, William Winkler, were made plaintiffs, and are ap-pellees herein, and Daphine Whitton Win-kler and her husband were made defendants and are appellants here. The case was tried before the court without a jury and judgment was rendered construing the last will and testament of Lela Whitton Hegarty, deceased, and appellants have prosecuted their appeal to this Court.

This appeal attacks the construction, by the trial court, of the First, Fifth, Sixth and Seventh paragraphs of the will of Lela Whitton Hegarty, deceased, and the remainder of the trial court’s judgment is not attacked in any way by appellants. Appel-lees present one cross-point relating to paragraph “Third” of the will. Lela Whit-ton Hegarty made her will on September 7, 1961, plainly making disposition of her half of the community estate of herself and husband. After making this will, her husband, Sam Hegarty, died on April 15, 1964, pre-deceasing his wife by some eight months. He left all of his property to his wife, and the real question here involved is whether or not Lela Whitton Hegarty intended by her will to dispose of the property she thereafter acquired from her husband, Sam Hegarty. The four paragraphs of the will to be here construed read as follows:

“First: I give and bequeath to my husband, Sam Hegarty, during his lifetime the income from all community real estate, such as crops, rent, sale of timber, coal, sand, gravel, oil, gas, or any kind of minerals and leases; the interest from our joint savings accounts in the Alamo National Bank Savings Department, Farm and Home Savings and Loan Assn., First Federal Savings and Loan Association, Guaranty Federal Savings and Loan Association, San Antonio Savings and Loan Association, Texas Savings and Loan Association, Travis Savings and Loan Association, shares in Texas Reserve Life Insurance Company, and my shares in the Alamo National Bank which are located in San Antonio, Texas. My shares in the above mentioned companies are not to be withdrawn, only the interest or dividends can be used.
Location of Community Property
Duplex — 114 W. Highland Blvd. — City Block 3128 — East ½ of Abstract Lots 80-81-82-83 and 84.
Four unit apartment house 317 Montana Street — City Block 603 — Abstract Lot 18 —Block Certificate 7.
Three houses on 5 Acres — Burton and Danforth Survey — Southwest ½ of lots 2 and 3 — Southeast ¼ track 4 and 5 — Block R in San Patricio County near Aransas Pass, Texas.
Ranch — 565.9 acres in Caldwell County— located on H. and T. C. Railroad Sur. Abstract Lots 153-154 (about 5 miles from Luling).
At the death of my husband, Sam Hegarty, my half of the community property, savings accounts, bank shares, and shares in Texas Reserve Life Insurance Company shall be given to my brothers W. L. Whitton’s heirs, Mrs. Sarah Anne Whitton Ravey; Mrs. Martha Whitton Martin; Edward O. Whitton’s heirs, Edward N. Whitton and Gloria Jane Whit-ton Drummond; Robert Benjamin Whit-ton or his heirs; Eugene Alfred Whitton or his heirs; and to my sisters Mrs. Sally Whitton Orr; and Mrs. John W. Pitre (Hazel Whitton Pitre).
******
“Fifth: I give and bequeath to my sister, Hazel Whitton Pitre, my half of our home 332 W. Craig Place — San Antonio, Texas — City Block 1863 — East 25 ft. of lot 3 — West 40 ft. of lot 4; my furniture, rugs, library pictures, silver ware, china, cut glass, crystal, table linen, clothing and jewelry. It is my request that my husband, Sam Hegarty, will his half of our home to Hazel Whitton Pitre at his death.
“Sixth: I give and bequeath my half of the Attoyac farm in Nacogdoches County 98.5 acres on J. I. Y’Barbo Survey Ab-tract No. 60 to my brother, Robert Benjamin Whitton or his son, Kerry King Whitton. It is my request that my husband, Sam Hegarty, will or deed his half of the property to my brother who owns the adjoining farm.
“Seventh: I give and bequeath to Eugene Alfred Whitton my half of 51 acres in San Augustine County — A. Y’Barbo Survey — Abstract No. 327. It is my request that my husband, Sam Hegarty, will or deed his half of this timber land to my brother who owns half of the tract.”

The testatrix, Lela Whitton Hegarty, in each paragraph making special bequests to her relatives, used the expression “My half.” The will does not contain a residuary clause and some of her property was not disposed of by her will.

In the first paragraph of her will, testatrix gave the income from certain properties to her husband, and provided that at his death certain of her property should pass to specifically named heirs. By the fifth paragraph she gave to her sister, Hazel Whitton Pitre, “my half of our home 332 W. Craig Place — San Antonio, Texas— * * *. my furniture, rugs, library pictures, silver ware, china, cut glass, crystal, table linen, clothing and jewelry.” She then added: “It is my request that my husband, Sam Hegarty, will his half of our home to Hazel Whitton Pitre at his death.” All of the personal property in the home was awarded by agreement to Mrs. Pitre. In the sixth paragraph of her will, testatrix gave her half of 98.5 acres of land located in Nacogdoches County to her brother, Robert Benjamin Whitton or his son, and added the following sentence: “It is my request that my husband, Sam Hegarty, will or deed his half of the property to my brother who owns the adjoining farm.” By the seventh paragraph of the will she bequeathed to Eugene Alfred Whitton “my half of 51 acres in San Augustine County,” and then added the following sentence: “It is my request that my husband, Sam Hegarty, will or deed his half of this timber land to my brother who owns half of the tract.”

Testatrix’s husband, Sam Hegarty predeceased her by some eight months, during which period testatrix did not make a new will, nor did she add a codicil to the will she had already written. It is clear from the language used and from all the circumstances surrounding the execution of the will, that testatrix did not intend to dispose of that part of the community estate which belonged to her husband, with the exception it is stipulated that Hazel Whitton Pitre was to have all of the personal property contained in the home at 332 W. Craig Place. In each instance testatrix used the expression “My half.” She did not own the other half and there is nothing to indicate that she intended to dispose of any property other than that which she owned. As a matter of fact, she expressed the desire that her husband at his death will the other half of their property to the same persons to whom she had given her half, which clearly indicates that she did not intend by her will to accomplish that purpose.

It is clear that she expressed the desire that after the death of herself and her husband that the parties to whom she had willed her half of the property would become the owners of the other half, but she expected to accomplish this by her husband making a will giving his half of the property to the same persons to whom she had given her half.

The law presumes that no person will attempt a testamentary disposition of the property of others. Ottenhouse v. Paysinger, Tex.Civ.App., 244 S.W.2d 714; Ford v. Bachman, Tex.Civ.App., 203 S.W.2d 630; Avery v. Johnson, 108 Tex. 294, 192 S.W. 542.

It is a fundamental rule of will construction that testator’s intent is determined as of the time the will is executed. Murphy v. Honeycutt, Tex.Civ.App., 199 S.W.2d 298. We must here determine what testatrix meant by what she actually said, and not by what she should have said. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960); 96 C.J.S. Wills § 755. A will is construed as of the date of its execution even though it does not become operative until the death of the maker. Spear v. Stanley, 129 Me. 55, 149 A. 603, 75 A.L.R. 470; Rogers v. Carter, Tex.Civ.App., 385 S.W.2d 563.

Appellees’ cross-point of error No. 1 is as follows:

“The trial court erred in construing paragraph Third of the Last Will and Testament of Lela Whitton Hegarty, Deceased, so as to exclude from the property in San Augustine County, Texas, devised to Eugene Alfred Whitton, the property in such county inherited by German Whitton from the Mary E. Whit-ton, the W. N. Whitton and the Valen Whitton Estates, which property was subsequently purchased from German Whit-ton’s heirs by Lela Whitton Hegarty.”

Paragraph Third of the will is as follows:

“I give and bequeath to Eugene Alfred Whitton all the property in San Augustine County that I inherited from the Mary E. and W. N. Whitton Estate and the property I inherited from Valen Whitton’s estate. (See the inventory.)”

The trial court’s finding and decree as to paragraph Third of the will is as follows:

“The Court finds, and it is accordingly CONSIDERED, ORDERED, ADJUDGED AND DECREED that it was the intention of Lela Whitton Hegarty in the Third paragraph of her Will dated September 7, 1961, that the title to all of the property in San Augustine County, Texas, inherited by Lela Whitton Hegarty from the Mary E. Whitton, W. N. Whitton and the Valen Whitton estates, should vest in, and it is ORDERED, ADJUDGED AND DECREED that the title to all of the property in San Augustine County, Texas, inherited by Lela Whitton Hegarty from the Mary E. Whit-ton, W. N. Whitton and Valen Whitton estates, shall vest in Eugene Alfred Whit-ton.”

We agree with this construction of the Third paragraph of the will, and the trial court was correct in not including in this bequest other property owned by testatrix in San Augustine County, Texas. Appellees’ cross-point is overruled.

Accordingly, the judgment of the trial court will be reformed so as to construe paragraphs First, Fifth, Sixth and Seventh of the last will and testament of Lela Whit-ton Hegarty as vesting title to a half interest in the real and personal property described in those paragraphs in the legatees and devisees named therein, and further, we find and decree that the remaining one-half interest of the community property becomes a part of the residuary estate of Lela Whitton Hegarty which passes to her heirs at law in accordance with the laws of descent and distribution of the State of Texas (with the exception above stated). In other respects the judgment of the trial court is affirmed.


author: TITUS, Judge.

text:
    Joe E. GRISSOM, Plaintiff-Respondent, v. Nettie M. HANDLEY, d/b/a Handley’s Tri-County Gas and Fertilizer Company, Hayti, Mo., Defendant-Appellant.
    No. 8483.
    Springfield Court of Appeals. Missouri.
    Dec. 16, 1966.

      John R. Fowlkes, Caruthersville, Harold D. Jones, Bock & Jones, New Madrid, for defendant-appellant.
    Wendell W. Crow, James F. Ford, Ford, Ford & Crow, Kennett, for plaintiff-respondent.
   TITUS, Judge.

An explosion of fire which injured plaintiff in a bean field on November 13, 1962, near Hayti, Pemiscot County, Missouri, provoked this lawsuit and a $15,000 verdict and judgment in his favor. On appeal the defendant, a retailer of propane (a liquid petroleum gas), successfully convinced all judges here plaintiff had not made a sub-missible case in the trial court. A difference existed, however, as to whether the cause should be reversed outright or reversed and remanded. Defendant’s motion for rehearing was granted, the parties have offered their supplemental briefs and arguments, and the matter is now assigned to the present writer for belaboring. From the subsequently appearing pronouncements set forth in brackets, the reader will realize a liberal kidnapping has been taken of the original opinion in this case provided by Hogan, J.

Two contrivances are involved. One is an auto-combine used to harvest soybeans and which had been converted to use propane, instead of gasoline, as fuel. The other is a 500 gallon propane tank of customary appearance. The tank and its fixtures were owned and supplied by defendant, and the propane in the tank was put there by defendant. The tank was mounted on a four-wheeled trailer owned by Troy Grissom, so it could be hauled about to service the combine which was the property of Bondy Grissom. Although the term “customary appearance” is applied to the tank, it is necessary to undertake a detailed description of this item, its attachments, and the trailer.

The tank was cylindrical in shape with either end encased by a dome-like closing. Affixed to the trailer with its axis horizontal, the tank was about eight feet long with a diametrical span approximating two and one-half feet. The trailer was equipped with a tongue of pipe, the end of which appears capable of coupling with a trailer hitch. When the casualty occurred, the tank and trailer were parked in a turnrow at the south end of the bean field with the tongue extending towards the east. Consequently, the tongue end of the trailer is alternately referred to as the front or east end of the tank.

A bird’s-eye look at the tank (i. e., looking down at it from above, reading it map-like with the tongue to the east) reveals that directly atop the tank and a short distance west of center is affixed a percentage gauge. Facing upward, the percentage gauge (said to bear numbers up to 95 or 100) indicates the amount of liquid in the tank. This gauge was not introduced into evidence.

At what appears to be the middle of the tank lengthwise (east and west) and just north of the lengthwise center line, was an input fitting used to fill the 500 gallon tank (Plaintiff’s Exhibit Number 26). Part of this fitting was an outage or 85 per cent pressure gauge operated by thumbscrew. Extending to the west horizontally from the fitting was a pressure gauge, the dial of which faces upward and bears numbers from 0 to 300. The dial reading reveals the pounds of pressure per square inch inside the tank.

Just east of the lengthwise middle of the tank and slightly south of the lengthwise centerline was the filler fitting (Plaintiff’s Exhibit Number 29) and excess flow check valve. To this was attached a filler hose or tube (Plaintiff’s Exhibit Number 30) used in transferring propane from the 500 gallon trailer mounted tank to the fuel tank on the combine. At the end of the hose was the filler valve (Plaintiff’s Exhibit Number 28) to be connected to the combine tank when it was being serviced from the larger tank.

The pressure relief valve (Plaintiff’s Exhibit Number 27) was located on top of the tank and about two feet east of the filler fitting. This valve, as it appears from the exterior of the tank, is one and three-fourths inches in diameter and one and one-half inches high.

[The storage tank in question had been filled several days earlier at the defendant’s plant and had been left in the field where plaintiff and another combine operator were working. “Around one o’clock” plaintiff stopped his combine near the storage tank in order (so he says) to check the oil, and it was then that the casualty occurred, though the evidence is sharply in conflict as to what actually happened. Plaintiff’s theory was that gas escaped from a relief valve on the storage tank; when it came in contact with the engine on the combine, which was “red hot,” it caught fire or exploded. A deposition which plaintiff offered in evidence showed that six days following the accident plaintiff had told a physician that the combine caught fire and he climbed up on it in an attempt to put the fire out, and at that time the combine exploded, burning the plaintiff. The defendant produced a witness who claimed to have been present and who testified that the plaintiff caused the accident himself by using the compressed gas (through a filler tube) to blow the accumulated dust and debris from the radiator on the combine. In any event, there was a fire or explosion; the plaintiff was severely burned and either fell or was thrown from the combine. The defendant has appealed solely upon the issues involving liability. The extent and seriousness of the plaintiff’s injuries are not questioned.

In his amended petition, the plaintiff pleaded numerous assignments of negligence, as well as breach of warranty on the defendant’s part, but he finally submitted his case upon three specific grounds. These were: (1) defendant’s failure to warn plaintiff of the possible escape of gas from the storage tank; (2) defendant’s negligence in filling the tank with an excessive amount of gas; and (3) defendant’s failure to have the relief valve vented upward so as to prevent escaping gas from coming in contact with nearby machinery. In this court, the defendant contends that its motion for directed verdict made at the close of all the evidence should have been sustained. We are therefore called upon the determine whether plaintiff made a submissible case upon the issues actually submitted, granting plaintiff the most favorable view of all the evidence, and giving him the benefit of all reasonable inferences to be drawn therefrom. Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124, 126-127(1) (2); Guthrie v. City of St. Charles, 347 Mo. 1175, 1184, 152 S.W.2d 91, 95(5); Newcombe v. Farmer, Mo.App., 360 S.W.2d 272, 276(2).

As to defendant’s negligence in failing to warn plaintiff “of the possible release of combustible gas,” the appellant contends that there was no showing of any necessity for such a warning and therefore no basis for submitting a failure to warn as being negligence. The respondent’s argument justifying this submission is diffuse and somewhat difficult to follow. Citing Thompson v. Economy Hydro Gas Co., 363 Mo. 1115, 257 S.W.2d 669, he stresses the combustible nature of liquefied petroleum gas and the defendant’s duty to exercise a degree of care commensurate with the product, and says that the release of gas from the relief valve constituted a “danger within the foreseeable, expected and intended use of the tank,” of which plaintiff should have been warned. There were, of course, certain risks ordinarily attendant upon the use of the tank, for the escape of small amounts of vapor normally accompanied the process of refueling farm machinery. Plaintiff testified, however, that he was familiar with this risk, and his evidence indicated that he appreciated the danger involved in releasing the compressed gas near possible sources of ignition. It was not the general risk of danger of which he says he should have been warned; rather, he maintains the possibility that gas might be released through the operation of the relief valve, in the circumstances here presented, constituted a hidden danger within the foreseeable, expected and intended use of the tank, a latent danger of which he should have been warned.]

The relief valve on the tank was [designed to release gas and relieve the internal pressure when it exceeded 250 pounds per square inch. Normally, the record indicates, the relief valve releases gas only when a tank has been overfilled, or possibly when it has been filled near the limit of its safe capacity (about eighty per cent of its water gallon capacity) and is exposed to high outside temperatures. The expansion characteristics of the gas are not shown. A Mr. Dunivant, defendant’s manager, testified that if a tank were overfilled, in “say 90 or 95 degree weather,” the relief valve would probably release, and the vapor, if released, would probably be explosive. Mr. Dunivant could recall only one time, in his three and one-half to four years’ experience with L.P. gas, when a relief valve had released gas from a tank; his testimony was that he “ * * * seen it on one occasion, I believe.” Mr. Clifford James, who had fifteen or twenty years’ experience servicing liquefied petroleum gas equipment, stated he had “occasionally” seen gas spew from relief valves because of “too much pressure.” A Mr. Grady testified that on one occasion he had seen a defective valve release gas at less than 250 pounds per square inch. There is no evidence more precise than that which we have just recited which indicates when and upon what occasions a relief valve may be expected to function and release gas. The “high” temperature obtaining when this casualty occurred, and which the plaintiff argues is a favor to be considered in the case, was 62 degrees, with a north breeze blowing.

In our view, the evidence did not warrant submission of defendant’s failure to warn of the “possible release of combustible gas.” We are aware that the defendant’s duty in that respect depended upon the foreseeability of the risk of harm, and that the question of foreseeability is essentially a subjective one. But we cannot subscribe, in the first place, to the view that plaintiff’s use of the tank in close proximity to “red hot” machinery was within its contemplated, intended use, as he maintains, since it was necessary to release some vapor « * * * jn or(jer to get gas * * * from the main tank into the little tank on the combine * * Rather, in view of the fact that the combustible nature of liquefied petroleum gas is a matter of common knowledge, Thompson v. Economy Hydro Gas. Co., supra, 363 Mo. at. 1124, 257 S.W.2d at 673-674; Seward v. Natural Gas Co. of New Jersey, 11 N.J.Super. 144, 78 A.2d 129, 134 (5, 6), we would be more inclined to say it was a use not reasonably to be foreseen. Assuming we cannot say that as a matter of law, however, defendant’s liability still must be predicated upon “ * * * some probability of harm sufficiently serious that ordinary men would take precautions to avoid it,” Bean v. Ross Manufacturing Co., Mo., 344 S.W.2d 18, 25; La Plant v. E. I. DuPont De Nemours and Co., Mo.App., 346 S.W.2d 231, 241 (12), and though the defendant’s duty is not wholly dependent upon the balance of probabilities, the risk of harm must have been a reasonably -foreseeable one. Apprehension of any likelihood of injury in this case presupposes negligent filling of the tank and use of the tank when danger would be apparent to any reasonable man, and in our judgment would require defendant to anticipate a contingency beyond the bounds of reasonable foreseeability. Upon the record presented, the defendant had no duty to warn plaintiff against such a contingency} and its failure to do so would not therefore constitute negligence.

Considering now plaintiff’s further submission that the defendant negligently filled the tank beyond a safe level, we find that all of his direct evidence of overfilling came from Bondy Grissom, his uncle and partner in the combining operation. Plaintiff established that the tank should be filled to eighty or eighty-five per cent of capacity, and that any filling beyond that would be improper in the circumstances obtaining here, though it might not be excessive in very cold weather.]

[Bondy testified that “six or eight days” before the accident he left the tank with the defendant to be refilled. The tank then “had some in it,” but Bondy didn’t know how much and didn’t look at it. When he picked the tank up, he spoke to no one at the defendant’s plant, but before taking the tank away he looked “at the guage on top of the tank” and “it showed the percentage about between ninety-five and a hundred, and close to a hundred.” Bondy then attached the tank and trailer upon which it was mounted to his pick-up and took it to the field where plaintiff and one George Flowers were combining soybeans. He drove directly to the field, a distance of about four miles, first down a blacktop road, then over a gravel road, across a rather steep railroad crossing and then into the field. Bondy said he had been using this tank or one like it for two or three years.

On cross-examination, having testified that he had looked at the percentage gauge, Bondy was shown the exhibit with the pressure gauge attached, and the following colloquy ensued:

“Q. You say you looked at this tank that morning before you hooked onto it and pulled off?
A. Yes, sir.
Q. Is this the guage that you looked at and to read the pressure you were telling the jury about?
A. I am not sure. It is — is there another one? Let me see.
Q. I have handed you what has been marked as Plaintiff’s Exhibit 26.
A. Yes, sir.
Q. That is the guage you read ?
A. Yes, sir.
Q. And it said somewhere between ninety-five and a hundred percent?
A. That’s right.”

The only other direct evidence about the amount of gas which had been put in the tank came from a Mr. Grady, defendant’s witness, who testified that he had filled the tank to eighty per cent of its capacity by putting 175.2 gallons of propane in it eleven days before the accident. Mr. Grady corroborated his testimony with a delivery ticket.

Thus, we have a situation in which there was no testimony showing the amount of gas in the tank before it was filled by the defendant, no evidence of the amount left after the fire or explosion, and only the very equivocal testimony of one witness as to the amount which was in the tank a short time before the fire or explosion occurred. It is true, as the plaintiff argues, that the pressure gauge and the percentage gauge were both on top of the tank and rather close together, but Bondy testified that he had been using this kind of tank for two or three years and that he had checked the tank before leaving defendant’s plant by looking at the percentage gauge. Yet, having seen pictures of the tank, and being shown a different gauge, he testified in effect that he had looked at the pressure gauge rather than at the percentage gauge.

We think we must agree with the defendant that Bondy’s testimony does not amount to substantial evidence that the storage tank was negligently overfilled. His testimony simply leaves one to speculate which gauge he checked and to surmise or guess whether the figure he saw on the graduated gauge was 95 or between 95 and 100 per cent of capacity, or 95 to 100 pounds per square inch upon the nearby pressure gauge, or whether he had forgotten at trial time what he had looked at. So far as direct evidence of overfilling is concerned, we agree with defendant that plaintiff’s proof comes within the rule stated in Adelsberger v. Sheehy, 332 Mo. 954, 961, 59 S.W.2d 644, 647 (6, 7), and reiterated in such cases as Stephens v. Thompson, Mo., 293 S.W.2d 392, 394 (1, 2), and Corder v. Pruitt, Mo., 361 S.W.2d 659, 661, that when a party relies on the testimony of a single witness to prove a given issue, and his testimony is so contradictory and conflicting that it tends both to prove and disprove the issue, and the inconsistency of his testimony is not explained by other evidence, no case is made.

Of course, as plaintiff maintains, he is entitled to the most favorable view of all the evidence in determining whether a submissible case was made, Christie v. Gas Service Co., Mo., 347 S.W.2d 135, 137 (1); Stephens v. Kansas City Gas Co., 354 Mo. 835, 845, 191 S.W.2d 601, 604 (6), and negligence, like any other substantive fact, may be established by circumstantial as well as by direct evidence. However, “ * * * the circumstances so established must give rise to an inference of negligence which reasonably follows * * Williams v. Cavender, Mo., 378 S.W.2d 537, 541 (2-4), and it is not enough that they may be merely consistent with such an inference, or that they may give equal support to inconsistent and contradictory conclusions. Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, 670 (8). Submissibility of the plaintiff’s case depended upon some substantial evidence that the defendant company put too much gas in the tank, and though we may concede the defendant’s duty not to fill it beyond a safe level, Tri-County Gas & Appliance Co. v. Charton, 229 Ark. 989, 320 S.W.2d 103; Harvey v. Zell, 87 Ga.App. 280, 73 S.E.2d 605; Martin v. Farmers Cooperative Exchange, Okl., 368 P.2d 1012, the basic question remains whether, upon the whole record, the proven circumstances point with reasonable certainty to the conclusion that it did so.

One of the basic assumptions of plaintiff’s argument in this court is that the tank must have been excessively filled because gas escaped into the atmosphere through a pressure relief valve located near one end of the tank. Plaintiff’s evidence concerning the source of the escaping gas is so vague and ambiguous, however, that it has no real tendency to establish the place from which it came. Bondy, who observed the accident from 100 or ISO yards, as a “guess,” described the accident as follows:

“Q. * * * just tell the jury what you observed then?
A. I seen one of the combiners pulled in beside this white tank, this L.P. Tank, and setting beside the L.P. Tank, and when I later noticed and made my turn, and of course, as I was coming in and approaching, why, I seen a fog or mist coming up from this tank.
Q. What end did that come from?
A. When it got off there, it seemed to be coming out of the east end * * *.
Q. Describe what happened to this white mist?
A. The best I could tell it was a fog coming up and spreading, and then, of course, as I was coming on in I noticed a flame and fire it looked like, and then I seen Joe standing, and drawed my attention to the combiner, and I seen Joe standing on the back end of the combiner at that time.
Q. Then where was the-fire first?
A. On the combiner.
Q. And that was after the white mist came over?
A. Yes, sir.
Q. And then what happened to the fire ?
A. It kind of cut out my view there at that time and I couldn’t see anything but a fog and a blaze.”]

Plaintiff possesses little knowledge of the matter. George Flowers, plaintiff’s other eye witness, was operating a combine in the bean field some two hundred feet away from the site of the casualty with the tank and trailer between him and the combine which plaintiff was using. Flowers testified, “I looked over and towards the combine * * and I seen a white mist spray up in the air approximately twenty feet and I looked back down [to check my combine] and when I looked back there was nothing but fire around the engine of the combine.” He said the fire did not stay at the engine but came (or moved) to the tank. “Q. Which end of the tank was it coming out ? A. It would be the east end. Q. Anything located on the east end of the tank? A. A hose was tied up to the front of the trailer on the east end. Q. A hose was tied up there? A. Yes, sir. Q. Was that the filler hose? A. Yes, sir.” Upon being shown photographs of the tank, Mr. Flowers identified and marked the filler valve as the source of the escaping gas. Concerning the tank he testified, “There’s a group of valves on there but I don’t know exactly what they are * * * ” Subsequently, after being shown plaintiff’s Exhibit 27 by plaintiff’s counsel and having been advised it was the relief valve, Mr. Flowers told plaintiff’s counsel “It [the fire] was coming out near there.”

[Much of his (plaintiff’s) argument is based upon the assumption that Bondy Grissom’s testimony constitutes substantial evidence of the defendant’s negligence, but, as we have said, we cannot agree. Nor would it serve any useful purpose to discuss and distinguish the cases cited by plaintiff in support of his argument; it is enough to say that this is not a case comparable to Braun v. Roux Distributing Co., Mo., 312 S.W.2d 758, which depended upon the force and credibility of expert testimony, nor to Williams v. Ricklemann, Mo., 292 S.W.2d, 276, which essentially involved a choice between conflicting estimates of speed and distance. We are aware that the probative value of a witness’ testimony is ordinarily a matter for the trier of fact, but in the final analysis the question whether evidence on a given issue is substantial is one of law for the court, Probst v. Seyer, Mo., 353 S.W.2d 798, 802(3); Tharp v. Monsees, Mo., 327 S.W.2d 889, 899(12); Vietmeier v. Voss, Mo., 246 S.W.2d 785, 787-788(3), and upon consideration of all the evidence bearing on the issue of negligent overfilling, we conclude the plaintiff made no submissible case in that respect.

What we have just said largely disposes of the defendant’s contention that no submissible case was made upon the plaintiff’s third assignment — that defendant was negligent in not venting the relief valve upward so as to prevent escaping gas from coming in contact with possible sources of ignition. For the purposes of this opinion, we need not construe the regulation quoted by the plaintiff nor describe whether, if it was applicable, the defendant was under a duty to modify the relief valve which it purchased and installed. Submissibility on this final ground, we think, was contingent upon a showing that gas escaped from the relief valve; and, since we have the opinion that there was no substantial evidence showing where the escaping gas originated, we consider that this final ground of submission was likewise without substantial basis in the evidence. We may add, however, that there seems to be little causal connection between the point of escape of gas and the casualty, in this particular case. It has been judicially noticed that propane is heavier than air and tends to sink, or seek the lowest level, Skelly Oil Co. v. Holloway, 8 Cir., 171 F.2d 670, 676; Gable v. Tennessee Liquefied Gas Co., 45 Tenn.App. 674, 325 S.W.2d 657, 665 (2), and the evidence generally here was that the cloud or “puff” of gas was caught by the wind and blown toward the hot manifold. Assuming for the moment that violation of this regulation would at least be evidence of negligence, Sections 323.020, 323.040, RSMo (1959), V.A.M.S.; 38 Am. Jur. Negligence, Section 170, p. 845; and see Ward v. City National Bank & Trust Co. of Kansas City, Mo., 379 S.W.2d 614, 619 (6), violation thereof would not constitute actionable negligence unless it was a proximate cause of the casualty. Downing v. Dixon, Mo., 313 S.W.2d 644, 650(4); Bauman v. Conrad, Mo.App., 342 S.W.2d 284, 287(3). Venting the relief valve further upward would not have prevented the casualty in this case, and we are unable to agree that defendant’s violation of this regulation, if such it was, amounted to causal negligence upon the record presented.

Upon consideration of the whole record, we conclude there was a failure of proof to support the assignments of negligence submitted, and that the motion for directed verdict made at the close of all the evidence should have been sustained. The judgment must therefore be reversed.]

When defendant’s motion for rehearing was granted, the particular attention of the parties was pointed at the concern regarding remand and plaintiff was invited to render specific comments on what evidence, if any, the record revealed he might make a submissible case upon retrial. Total absence of a pertinent response, either by brief or argument, serves only to burden the court with an unassisted task and attests the fact attorneys have not changed since receiving the rebuke, “Woe unto also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burden with one of your fingers.” Luke 11:46.

Preparation of a catalogue raisonne on remand cases seems an unattainable undertaking and any degree of success thereat would surely go unappreciated as a certain arena of vagueness appears required in which to exercise judicial discretion and tie the ends of justice. In remand cases, however, it is reasonably certain the appellate judicial spoon that ladles sauce on plaintiff’s goose seldom, if ever, sops the defendant’s gander, for “if a plaintiff obtained a judgment without error, the defendant could not have it reversed and remanded on the theory that he might make a better defense on retrial.” Owings v. White, Mo. (banc), 391 S.W.2d 195, 197; Nussbaum v. Kansas City Stock Yards Co. of Maine, Mo., 359 S.W.2d 335, 342(8).

Different from the present situation is a general class of cases where all the facts are fully presented to the jury on the pleaded charges of liability and plaintiff abandons some of those charges upon submission for strategic advantage. The abandoned assignments of liability under those circumstances become moot and an appellate court is not obliged to comb the record to determine if defendant’s motion for directed verdict was properly overruled because of the existence or availability of evidence sufficient to sustain a discarded theory. Under most such conditions, if the submitted charge is not supported by the evidence the case will be reversed without remand. Smith v. St. Louis Public Service Co., 364 Mo. 104 (banc), 259 S.W.2d 692, 696(3); Guthrie v. City of St. Charles, 347 Mo. 1175 (banc), 152 S.W.2d 91, 95(4); Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 323(16); Farmer v. Taylor, Mo.App., 301 S.W.2d 429, 434-435(9,10); Batson v. Ormsbee, Mo.App., 304 S.W.2d 680, 684-685(8).

However, if the situation is the same as in the first category, supra, except that plaintiff’s failure to submit on all assignments of liability is due to a “misadventure” (as opposed to a selection for strategic advantage) and the evidence discloses the plaintiff might recover on another theory, it is said the case will be remanded on reversal. For example: Snyder v. Jensen, Mo., 281 S.W.2d 819, 824-825(6) where a misadventure occurred because “counsel apparently believed that there was enough evidence adduced” to support the submitted theory or “may have believed,” mistakenly, that two separate specifications of primary negligence were submitted in the conjunctive. A “misadventure” was said to have existed in Reece v. Reed, Mo., 326 S.W.2d 67, 72(7,8) when the plaintiff, struck from the rear by defendant’s car while stopped for a red traffic signal, destroyed a prima facie case by reading defendant’s deposition to the jury wherein defendant attributed the accident to an unanticipated “blackout.” It was opined plaintiff might recover on retrial if defendant’s deposition was not again read into evidence. In Lamont v. Thompson, Mo., 303 S.W.2d 589, 595(6-8) a “misadventure” resulted because plaintiff overlooked or failed “to appreciate the significance of the evidence tending to support the [abandoned] issue.” for cases of “misadventure” wherein plaintiff’s misconceived application of humanitarian negligence or res ipsa loquitur, and abandoned or did not plead primary or specific negligence, see Homfeld v. Wilcoxon, Mo., 304 S.W.2d 806, 811(6,7), Blaser v. Coleman, 358 Mo. 157 (banc), 213 S.W.2d 420, 423(8-10); McClanahan v. St. Louis Public Service Co., 363 Mo. 500 (banc), 251 S.W.2d 704, 709(7); Cudney v. Midcontinent Airlines, 363 Mo. 922 (banc), 254 S.W.2d 662, 667(9).

Perhaps a third broad segment of remand cases and those attaining a similar result by affirming the trial court’s order granting plaintiff a new trial, are those where the particular theory upon which plaintiff might recover upon retrial (as disclosed by the evidence) is not pursued at the first trial, is not pleaded, or is abandoned before trial. Karch v. Stewart, Mo., 315 S.W.2d 131, 137-138(7); Haferkamp v. City of Rock Hill, Mo., 316 S.W.2d 620, 628-629 (7); Simpson v. Kansas City Connecting Railroad Co., Mo. (banc), 312 S.W.2d 113, 121(5,6). It apparently matters not when the new theory dawns, for in Pigg v. Bridges, Mo. (banc), 352 S.W.2d 28, 34(10), the hypothesis defendants might be liable as joint adventurers, rather than as principal and agent, first saw the light of day and was first suggested to the court en banc after a division of the Supreme Court was unable to agree.

We are loath to foster an opportunity for witnesses to state with certainty on retrial what they obviously did not know at the first hearing. Nevertheless, we need heed the authorities cited which indicate this is a case for remand. No authority requires us to be more explicit than we have been, or, as many cases have done, to lead plaintiff by the hand to and through the second trial of the cause. As plaintiff has failed to touch the burden cast upon us with one of his fingers, we rightfully decline to raise one of ours to direct his way.

No quarrel was made with the amount of the verdict nor with any proceeding or instruction relating to plaintiff’s damages. “ * * * [N]o new trial shall be ordered as to issues in which no error appears.” V.A.M.R. 83.13(c); V.A.M.S. § 512.160, subd. 3. The new trial of this case should be limited to the issue of liability, and if upon retrial the verdict be for the plaintiff, the trial court shall enter judgment for him in the sum of $15,000 against the defendant.

The judgment is reversed and the cause remanded for a new trial on the issue of liability only.

STONE, P. J., and HOGAN, J., concur.

      . [Promulgated by tlie Motor Fuel Tax Unit of the Department of Revenue, pursuant to Chapter 323, RSMo (1959), V.A. M.S. The regulation provided, in a material part, that “⅜ ⅜ ⅜ [t]he discharge outlet from safety relief devices shall be located on the outside of enclosed spaces and as far as practicable from possible sources of ignition, and vented upward in such a manner as to prevent impingement of escaping gas upon containers or parts of vehicles or on vehicles in adjacent line of traffic * ⅝ *.”]

      . Flournoy v. Kuhn, Mo.App., 378 S.W.2d 264, 268(8); Stafford v. Fred Wolferman, Inc., Mo., 307 S.W.2d 468, 478(14); Tucker v. Taksel, Mo.App., 345 S.W.2d 385, 389(6); Hoffman v. Kroger Company, Mo.App., 340 S.W.2d 152, 155(7); Beckwith v. Standard Oil Co., Mo., 281 S.W.2d 852, 857(11).