author: HODGES, J.

text:
    STANDARD ACCIDENT INS. CO. v. CHERRY.
    No. 3886.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 2, 1931.
    Rehearing Denied March 12, 1931.

      King, Mahaffey, Wheeler & Bryson, of Tex-arkana, for appellant.
    Wm. Y. Brown and Arnold & Arnold, all of Texarkana, for appellee.
   HODGES, J.

The appellee sued the appellant on an accident policy which contained the following provisions:

“Standard Accident Insurance Company of Detroit, Michigan,' in consideration of the representations contained in the application, copy of which is indorsed herein and made a part hereof, and of the premium of $29.71, hereby insures Marion E. Cherry, hereinafter .called the insured, whose occupation is truck driver — ice delivery, for the term of 12 calendar months from noon, Standard time, of the 29th day of October, 1928, against loss resulting from bodily injury, effective directly, exclusively and independently of all other causes through external violence and accidental means except when intentionally inflicted while sane or insane, or sustained by the insured while insane, subject to all the conditions and limitations hereinafter contained, principal sum $1,000.00; weekly indemnity $15.00.
“If such injuries shall wholly and continuously disable the insured from date of accident, from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability, but within 200 weeks from date of such accident, shall result independently and exclusive of all other causes in either one of the. losses enumerated below or within 90 days from the date of the accident, irrespective of total disability, result in like manner in any one of such losses, the Company will pay the sum set opposite such loss, and in addition weekly indemnity, as provided in Art. 2, to the date of death, dismemberment, .or loss of sight. Only one of the payments named will be made for injury resulting from one accident.
“Weekly Indemnity.
“If such injury shall not result in any of the disabilities enumerated in Art. 1, but shall directly and immediately totally and .continuously disable and prevent the insured from attending to any and every kind of duty pertaining to his occupation, the company will pay him the weekly indemnity at the rate mentioned above, ($15.00) for the entire period during which he is so disabled.”

After setting out the foregoing provisions of the policy, the plaintiff alleged:

“Plaintiff would show to the court that while in the usual course of his employment as a truck driver delivering ice, on the 10th day of June, 1929, he received an accidental injury to his back, sides, ribs, and muscles, tissues, ligaments, blood vessels and nerves of his back, spine and ribs, which resulted in his total disability to perform the duties of his occupation, and that since receiving his said injury he has been totally and continuously disabled from performing the duties of his occupation, and will continue to be so disabled the balance of his life.”

The plaintiff asked for compensation at the rate of $15 per week, together with 12 per cent, as a penalty, and $150 as attorney’s fees. The total amount for which recovery was sought is $646.56. Appellant answered, denying liability under tbe terms of tbe policy.

Tbe court submitted tbe following issues to tbe jury:

‘■(1) Do you find from a preponderance of the evidence that tbe plaintiff received tbe injuries complained of in tbe manner and as alleged in bis original petition in tbe cause? Answer: Yes.
“(2) If you have answered tbe above question ‘No’, then you need not answer tbe following question; but if you have answered it ‘Yes’, then answer tbe following question: Do you find from a preponderance of tbe evidence that the plaintiff was directly and immediately totally and continuously disabled and prevented from attending to any and every kind of duty pertaining to bis occupation as tbe result of said injuries, if any? Anwer: Yes.”

A third issue was submitted wbicb tbe jury was not called upon to answer in tbe event they answered in tbe affirmative those which have been quoted. Upon those answers tbe court entered a judgment in favor of tbe plaintiff.

Tbe first question we shall consider is, Are tbe pleadings and tbe evidence sufficient to support a recovery under tbe terms of tbe policy? It will be observed that in issuing this policy tbe appellant has limited its liability to injuries caused by accidental means. There is a well-established distinction between accidental injuries and injuries resulting from accidental means. International Travelers’ Ass’n v. Francis (Tex. Sup.) 23 S.W.(2d) 282; Bryant v. Continental Casualty Co., 107 Tex. 582, 182 S. W. 673, 675, D. R. A. 1916E, 945, Ann. Cas. 1918A, 517; United States Mutual Accident Ass’n v. Barry, 131 U. S. 100, 9 S. Ct. 755, 33 L. Ed. 60; Pledger v. Business Men’s Accident Ass’n (Tex. Com. App.) 228 S. W. 110, 113.

In the Pledger Case tbe court said:

“Death caused by accidental means is an accidental death; but an accidental death may or may not be tbe result of accidental means. Viewing the contract of insurance as a whole, tbe association’s liability in this case was for the accidental death of Pledger.”

In the Bryant Case, Chief Justice Phillips, who wrote tbe opinion, said:

“Tbe word ‘means’ is employed in tbe policy in tbe sense of ‘cause’; tbe phrase ‘due to accidental means,’ is one of qualification; and the purpose of its use in tbe ordinary accident policy is to limit the liability of the insurer to injuries effected by an accidental cause, as distinguished from those which are merely accidental in their result. It is generally recognized, as it should be, that where a man undertakes to do a certain thing by a: particular means, and tbe result of his act is' such as follows, in not an unusual or unexpected -way, from the means voluntarily, used; it cannot be said to be due to an accidental cause, though, in tbe sense that it was not intended, an accidental result is the consequence. In the numerous adjudicated cases upon tbe subject, therefore, it is determined that where by the terms of tbe contract tbe risk insured against is an injury effected by ‘accidental means,’ the element of accident must consist in that which produces the injury, rather than in the mere fact that an injury occurs. -The rule itself is well established. It is its application to the varying kinds of accidental injuries which is sometimes involved in difficulty, occasioning, in some instances, divergent opinions- by the courts.”

That brings us to the question, What caused the appellee’s injuries? He testified as follows as to his employment and the circumstances under which his injuries occurred:

At the time the policy was issued he was a truck driver engaged in the business of delivering ice at different places in the city of Texarkana. His duty was to carry ice from ’ bis truck and put it in tbe houses or ice boxes of his customers. The usual weight of the ice be had to carry and put into tbe ice boxes ranged from 50 to 300 pounds. He thus testified as to what be was doing at the time he was injured:

“I was filling bis (meaning Mr. Atchison’s) ice box with ice, carrying a two-hundred pound chunk of ice; I had it on my back like that; I was bent over and his box struck me right along here (indicating a point about tbe lower part of shoulder blade)'. I had to have the ice away up on my shoulder and when I went to tilt over like that I felt it break loose, and I turned around to him and said, T hurt myself.’ * * ⅜ As to how it hurt me, it just caught in my back there. It. just seemed likfe I could feel it tear loose when I threw the ice back. When I felt my back.tear loose in there just like- — well, I heard-it when it popped loose and broke. That was when 1 put the ice down; when I threw .the ice off of my back.”

Tbe witness further stated that in unloading the ice be stood it on the edge of..the truck and then reached back, with his tongs behind his shoulder. After fastening bis tongs in tbe ice-, be would pull the ice. upon his back and then back up to the ice. bqx and let tbe ice down into the ice box. The ice he was handling on that occasion was a 200-pound block. In- depositing .the jce in the box, he had-to tilt, over fórward ;.-.the edge of the ice box struck his back at a point near tbe lower part of the shoulder blade. In- un-; loading the ice from his back, be had to push-it up high on his shoulder to get it in the- box and then tilt back, and that was when he injured himself. It was nothing unusual .for him to carry ice and put -it in the ice bos; in; that way. He had for a considerable length of time been putting it in the same box in the same way.

The question then arises, Do those facts show that the appellee’s injury was the unexpected and unintentional result of what he voluntarily did ? If it was, then he has shown merely an accidental injury, which is not covered by the,terms of his policy. But, if the facts warrant the conclusion that the injury was the unexpected result of an unexpected cause, or of an act, which was unintentionally, unexpectedly, and involuntarily done by him, then it may be said that the injury was the result of accidental means, and within the terms of the policy.

In the Barry Case the injury was caused by Barry’s jumping from a platform. Two other companions had immediately preceded him in jumping from the same platform. They alighted safely. Barry voluntarily jumped, but he intended to alight safely; the injury was unexpected. The court held that it was due to accidental means. The ruling was evidently based upon the conclusion that there was some involuntary and unintentional muscular movement on the part of Barry which intervened and caused him to alight in an unexpected way.

In the Bryant Case, Perry, the injured party, died as the result of a sunstroke. The facts showed that Perry voluntarily exposed himself to the heat of the sun, and the intensity of that heat caused the resultant injury. But the court held that the injury was caused by accidental means. Evidently the heat was more intense than Perry expected, or his physical condition was such that he was less able to withstand the heat than he expected to be. In concluding the opinion in that case, Ohief Justice Phillips said:

“The proper and true test, .in all instances of voluntary action, is that defined in the Barry Case; If in the act which precedes the injury, though an intentional act, something unforeseen, unexpected, and unusual occurs, which produces the injury, it is accidentally caused. If the injury followqd in a usual or reasonably to be expected way from the means voluntarily employed, that is, the given voluntary act, it is not a result accidentally effected:”

In the Pledger Case Pledger was injured while attempting to lift the end of a bale of cotton. I-Ie had been lifting other bales of cotton of similar weight on the same day. 1-Ie was afflicted with a disease called hardening of the arteries. When he attempted to lift the' bale of cotton at the time he was injured, he felt an internal rupture and immediately complained of being sick. He later died as a result of the injury. The policy sued on in that case was interpreted by the Supreme Court to be a contract indemnifying him from an accidental injury. Judge Taylor, who wrote the opinion for the Commission of Appeals, stated; -

“Under the rules stated in the Bryant Case, supra, Pledger’s death was caused by accidental means. It follows that his death was accidental, and it was so found to be by the Court of Civil Appeals.”

•According to the testimony of the appellee, he was unloading the ice from his back in the same manner which he had adopted on previous occasions. So far as he knew, there was no voluntary variation in the manner of doing that work from that customarily adopted during the several months he had been delivering ice at that place.

It is a rule in physics that the same causes operating under the same conditions will produce the same results. When results are different, there must be a variation, either in the cause or in the conditions under which the cause operated. In this case the weight of the block of ice was the same; the position of the ice box was the same. So far as the evidence shows, the physical condition of the appellee was the same. There must have been a variance unknown to him in the manner in which he handled himself in bending his body while depositing his burden. If there had not been such a variation, the results would have been precisely the same as on previous occasions. There must have been some involuntary and unintentional movement, unconsciously performed, that intervened and caused the rupture of the ligaments, tissues, or membranes constituting his injury. If that be true, and we are for the moment merely assuming that to be true, then it may be said the injury was the result of accidental means within the terms of the policy.

But in this case the appellee alleged in his petition that he received an “accidental injury.” He did not plead that he received an injury by accidental means. As said in the Pledger Case, and other similar cases, an accidental injury may be the result of an injury by accidental means, but an accidental injury is not always the result of an injury' caused by accidental means. In submitting the first issue, the court referred the jury to the plaintiff’s original petition for the purpose of ascertaining the injuries they must consider. In answering that interrogatory in the affirmative, the jury, in effect, found that the plaintiff received an accidental injury to all those parts of his body mentioned in his original petition.

There is no finding in the record that he sustained an injury caused by accidental means. It seems that no such issue as that covered by the policy was submitted, or its submission requested. Hence there was no basis either in the pleadings of the appellee or in the findings of the jury for holding the appellant liable under the terms of the policy.

Moreover, it was improper for the court to refer the jury to the pleadings in order to ascertain the injuries they were to consider. Farmers’ & Mechanics’ Nat. Bank v. Marshall (Tex. Civ. App.) 4 S.W.(2d) 165, 166; Hewitt v. Buchanan (Tex. Civ. App.) 4 S.W.(2d) 169, 174; Egan v. Egan (Tex. Civ. App.) 235 S. W. 659; Estep v. Bratton (Tex. Civ. App.) 298 S. W. 145.

The appellee contends that such error was harmless because the evidence conclusively showed that the injuries had been sustained, and the court might have assumed as a matter of law that the appellee was injured within the terms of the .policy.

The plaintiff in the case was the only witness who testified concerning his injuries. Those injuries were, according to his testimony, internal, showing no external signs of their existence. The physician who treated him and who testified on the trial did not mention any external evidences of any such injury. He seems to have been governed in his treatment by what the appellee told him. The appellee was deeply interested in the result of the suit. He was later employed in other work that required him to be on his feet much of the time.

The general rule is that the court cannot assume, as a matter of law, that such a witness has told the truth, even though he is not contradicted by other witnesses. Pope v. Beauchamp, 110 Tex. 279, 219 S. W. 447, 450; Lucas & Co. v. Thompson (Tex. Civ. App.) 15 S.W.(2d) 123, and cases there referred to. In the first case cited above, the court, in quoting from a former case (Houston, E. & W. T. Ry. Co. v. Runnels, 92 Tex. 305, 47 S. W. 971), said:

“It is the province of the jury to pass upon the credibility of the witnesses, and they may disregard the testimony of a witness who has neither been impeached nor contradicted, if they believe his statements to be untrue from his manner of testifying, prejudice exhibited towards the opposite party, or his interest in the result of the litigation, or other things indicating that the evidence is not reliable.”

The court could not, under the circumstances in this case, assume as a matter of law, from the appellee’s testimony alone, that he sustained the injuries detailed by him. The above ruling is not intended to prejudge the facts, and must be regarded as ruling upon the point only that the pleadings do not support a recovery under the policy.

Appellant attacks the second interrogatory as violative of the statute, which requires each issue of fact to be separately submitted. The complaint is that two or more issues of fact were embodied in that interrogatory. That form of submitting such an issue was approved in the following cases: Georgia Casualty Co. v. Gibson (Tex. Civ. App.) 11 S.W. (2d) 191; Federal Surety Co. v. Smith (Tex. Civ. App.) 25 S.W.(2d) 994. But in each of those eases a writ of error was granted by the Supreme Court where they are still pending.

Since we have determined that this case should be reversed upon other grounds, we shall not express an opinion as to the propriety of submitting an issue in that form. It is probable that the question will be settled by the Supreme Court before another trial of this ease.

We also think the court should have excluded that portion of the testimony of the appellee wherein he stated what Andrew Rose, the agent who issued the policy sued on, said to him about a settlement with the company.

The judgment will be reversed, and the cause remanded for another trial.


source: Caselaw Access Project

author: GALLAGHER, C. J.

license: Public Domain

text:
    KENT v. NATIONAL SUPPLY CO. OF TEXAS.
    No. 998.
    Court of Civil Appeals of Texas. Waco.
    Feb. 19, 1931.
    Rehearing Denied March 19, 1931.

      Lawrence Treadwell and Callicutt & Up-church, all of Corsicana, for appellant.
    Bryan, Stone, Wade & Agerton, of Fort Worth, for appellee.
   GALLAGHER, C. J.

. Appellee, National Supply Company of Texas, sued G. C. Kent, J. E. Butler, and C. A; .Middleton, alleging that they were, doing business as partners under the name of Cor-sicana Oil & Refining Company, Central Petroleum Company, a corporation, and- First National Bank- of Corsicana, a corporation, to recover the value of five separate items of oil well machinery and equipment alleged to have been on September 1, 1927, the property of appellee, and to have been on that day converted by said parties defendant to their own use and benefit. Said defendants filed a joint answer, consisting of general demurrer, general denial, and a further plea that appel-lee’s cause of action accrued more than two years before the commencement of this suit.

Erwin & Warren owned an oil and gas lease on a five-acre tract of land known and designated as block 12 of the Green Springfield tract out of the Lane survey in Navarro county. On the 21st day of September, 1923, they purchased from appellee one 100 H. P. oil engine, one compressor complete with standard equipment, and one 6 H. P. Novo engine, and to secure a balance of the purchase price thereof amounting to $4,230, executed and delivered their chattel mortgage thereon, reciting that the same was located on the block of land aforesaid. Said mortgage was forthwith filed with the county clerk of Navarro county for registration according to the terms of Revised Statutes, article 5498, providing for the registration of chattel mortgages on machinery susceptible of being attached to realty. Said Warren and others thereafter, on the 25th day of January, 1924, executed a deed of trust on all their right, title, and interest in and to the block of land aforesaid and various other lands, to secure the sum of $10,000 evidenced by notes held by the Central State Bank of Corsicana. Said deed of trust was filed for record on the 17th day of July, 1924. Erwin & Warren thereafter on the 26th day of March, 1924, purchased from appellee certain casing and tubing, and executed and delivered to appellee their chattel mortgage thereon and also on all the property described in their first mortgage. Said mortgage recited that it was given to secure a balance due on the purchase price of said casing and tubing amounting in the aggregate to $4,100, and recited that the property described therein was located on the block of land aforesaid. Said mortgage was forthwith filed for registration as required by the statute aforesaid. Erwin & Warren thereafter executed and delivered to appellee their third chattel mortgage on all the property described in their first mortgage as aforesaid, and also on another 100 H. P. oil engine and another compressor complete with all standard equipment, to secure notes amounting to $6,240. Said mortgage recited that all said property, was located on the block of land aforesaid, and that such mortgage was given in extension of the two preceding mortgages and as a first lien purchase price mortgage to secure the balance due for said machinery. Said mortgage was dated September 8, 1924, and filed for registration in accordance with the statute aforesaid on the 27th day of September, 1924. All the interest óf the grantors in said deed of trust in and to1 said block of land was on April 6, 1926, sold by the trustee in said deed of trust to W. H. Fendley. He was an employee of the Central State Bank of Corsi-cana. He purchased the property and held title thereto for said bank. Neither the deed of trust nor the deed from the trustee to Fendley purported to convey the machinery situated on or used in connection with said land. Appellee thereafter on May 13, 1926, claiming to act under powers of sale contained in its said mortgages, respectively, sold at public sale the five items of property sued for herein and described in its mortgages aforesaid. Appellee, as authorized by the terms of said mortgages, purchased all of such property. All the same was at that time set upon cement foundations and attached thereto with iron bolts. Said Fend-■ley and Mr. Knox, an executive officer of the bank, attended said sale and gave notice thereat that the bank was claiming the lease on said land and everything thereon under Fendley’s purchase. The Central Petroleum Company was organized to take over the lease on this and other blocks of land acquired by Fendley by his purchase at the trustee’s sale.' Fendley conveyed all said properties to said corporation on May 22, 1926. His deed purported to convey not only all the right, title, and interest held by him in' the land described therein, but also all machinery and equipment situated thereon or used in connection therewith. The consideration recited in said deed was $10 cash and five vendor’s lien notes payable to the Central State Bank, amounting in. the aggregate to $40,487.50. Said corporation, on the 24th day of May, 1926, entered into what was termed a working agreement with the Corsicana Oil & Refining Company, a common-law trust, with G. C. Kent, J. E. Butler, .and G. A. Middleton as trustees. Said trustees were sued herein as partners, and such relation was not denied under oath, as required by statute for a contest of such allegation. -By,'the terms of said agreement said oil and refining company was to take possession of said lease, develop and operate the same, and out of .the profits of such operation pay the ihdebtedness owed by the petroleum company to the bank in full, and was to thereupon become invested with an undivided half interest in such properties. Said trustees, or said Butler acting for himself and his cotrustees, took immediate possession of said properties, including the machinery and equipment involved in this suit, and procéeded with the development and operation of the sáme until March 14, 1928, when the petroleum company conveyed all such properties to G. C. Kent. Kent at or about the same time acquired all the rights in the premises held by said oil and refining company. Thereafter he continued the «development and operation of said properties, claiming the same, together with the machinery and equipment in controversy in this case, as his own.

The case was tried to a jury. The issues submitted, with the answers of the jury thereto, are as follows:

“(1) Do you find from a preponderance of the evidence that the defendant, G. O. Kent, and those under whom he claims title to the machinery described in plaintiff’s petition, have had possession of said machinery, claiming it as their own, for more than two years previous to the filing of this suit, which was August 27th, 1928?
“Answer: No.
“(2) If you answer the above question ‘No,’ then you will answer this question: What is the reasonable market value of the machinery described in plaintiff’s petition at the time it was taken into the possession of defendants, if you believe it was.taken into their possession? Answer in dollars.
“Answer: $4,000.00.”

The court, upon consideration of said verdict and of a joint motion filed by all the defendants asking for judgment in favor of each of them severally on or notwithstanding such verdict, rendered judgment in favor of appel-lee against the Central Petroleum Company and G-. C. Kent for the sum of $4,000, and rendered judgment in favor of all the other defendants. G-. C. Kent alone has appealed:

Opinion.

Appellant assails the finding of the jury in response to the first special issue submitted that appellant and those under whom he claimed title to the machinery involved herein did not have possession of the same, claiming it as their own, for more than two years prior to the institution of this suit. At the time of the purchase of the machinery by appellee at its own foreclosure sale, Mr. Knox, representing the bank, requested appellee’s representative to leave such machinery in place, stating that it would be better to do so because he had a deal pending whereby both the bank and appellee might get the moneys due them,, respectively, out of the property. There was testimony that appellee acceded to the request and that this mutual arrangement was continued and never repudiated prior to July, 1928, a month or two before the institution of this suit. There was testimony that appellee’s representatives at the time of the sale hired a pumper as watchman and left the machinery in his charge. Mr. Knox testified as a witness in the case. He stated that he had claimed title to said machinery for the bank and for the petroleum company ever since such sale. He further testified, however, that at the time of the sale he had not discovered the record of appellee’s mortgages and that he told appellee’s representative that the question of which had the superior right to such machinery would depend upon the record. While he denied requesting appellee’s representatives to leave the machinery in place, he admitted that he told them it would be to the best interest of both to do so. He further testified that he had in view at the. time an arrangement with the trustees of the oil and refining company, and that Butler represented them; that he was hoping that they would find deep oil there was the reason why he wanted the machinery left in place. He further testified that he had a number of conferences with appellee’s representative with reference to the matter, and that in sucl\ conferences he told appellee’s representative to see Mr. Butler, and if he could arrange ⅜ trade with said Butler and he wanted to buy, it would be all right with him; that he understood that appellee’s representative and said Butler continued negotiations for the purchase by. Butler of said machinery until some time in December, 1927. There was also testimony tending to show that negotiations for such purchase were in fact conducted between a representative of appellee and said Butler from time to time until the fall of 1927, when he agreed to purchase such machinery for the oil and refining company; that notes for the agreed purchase price were prepared and sent to him for execution and never returned. Not until the sale, by the petroleum company to appellant on March 14, 1928, was there a distinct and unequivocal repudiation of appellee’s claim of title to this machinery and a holding thereof hostile to such claim. The finding of the jury is amply supported by the evidence. 2 Tex. Jur. p. 72, part § 37, and authorities cited in note 10 thereto. See also R. W. Wier Lumber Co. v. Eaves (Tex. Com. App.) 296 S. W. 481, 482, par. 2, and authorities there cited; Houston Oil Co. v. Pullen (Tex. Com. App.) 272 S. W. 439, 440, par. 2, and authorities there cited.

Appellant presents a group of propositions in which he contends that there is a fatal variance between the allegation in ap-pellee’s petition that said machinery was converted by the defendants on or about September 1st, 1927, and proof that appellant bought the same on March 14, 1928, and claimed the same continuously thereafter. He also' contends in this connection that appellee’s allegation that the value of the machinery at the date of conversion was $5,600 will not support the judgment for $1,000 for a conversion by him on March 14, 1928, the date of his purchase. Appellee alleged that the defendants, and each of them, converted the machinery involved herein on or about September 1, 1927, and that the value of the same was $5,600. Appellant testified that he purchased the machinery on March 14, 1928, and that-he had been claiming the same as his own ever since, but that he had never had any personal connection therewith prior to that time. He further testified that its reasonable market value at that time was $4,000. Appellant’s witness Bryan testified that he saw the machinery shortly after appellant’s purchase and that the reasonable, market value of same, exclusive of repairs placed thereon by Butler, was $4,000. No objection was made by appellant to any of the testimony introduced on the subject of value. The general rule as to the allegation of time in actions for conversion is stated in 26 R. C. L., p. 1130, as follows:

“An averment of the precise time of the conversion is not necessary, hut it is necessary to state that it was sometime prior to the commencement of the suit and within the statutory limitation within which the action can be brought.”

Our Supreme Court, in Gulf, C. & S. P. Ry. Co. v. Witte, 68 Tex. 295, 296, 4 S. W. 490, 491, said:

“It is an elementary rule that, in proving the time at which a cause of action arose, the plaintiff is never confined to that laid in his -declaration or petition. ⅜ * ⅜ At common law time . was usually stated under a videlicet. This, by some authorities was decided necessary in order to relieve the plead-er from the necessity of proving the exact date as alleged. But a requisite so purely formal as this has no place under our system of pleading and practice.”

On proof of allegations, of time and place, ■see First National Bank v. Brown, 85 Tex. 80, 87, 23 S. W. 862; St. Louis, A. & T. Ry. Co. v. Evans, 78 Tex. 369, 370, 14 S. W. 798; Pirst National Bank v. Stephensori, 82 Tex. 435, 436, 18 S. W. 583; Wilkins v. Perrell, 10 Tex. Civ. App. 231, 30. S. W. 450, 451; Kerr v. Blair, 47 Tex. Civ. App. 406, 105 S. W. 548, 551; Texas & N. O. R. Co. v. Weems (Tex. Civ. App.) 184 S. W. 1103, 1104, par. 4; English v. City of Fort Worth (Tex. Civ. App.) 152 S. W. 179, 180; Bancroft Co. v. Haslett, 106 Cal. 151, 39 P. 602; Jackins v. Bacon, 63 Cal. App. 463, 218 P. 1027, 1029, par. 1; 49 C. J., p. 815, § 1200. Appellant cites and relies upon the case of May v. Anthony (Tex. Civ. App.) 151 S. W. 602. The court stated in the opinion in that case, in substance, that the time of the conversion was, under the facts involved, a material issue. The variance in time between the allegation and proof there considered was from thirteen to fifteen months. There is nothing In this case invoking the application of the rule so announced. The testimony introduced with reference to value covered the ■time from September 1, 1927, to November, 1928, and tended to show that there was little, if any, change in value during that time. Appellant himself testified to its value at the time of his purchase, and the verdict of the jury followed the same ánd was apparently based thereon. Before a variance between allegation and' proof will constitute ground for reversal, it must appear that such variance was reasonably calculated to surprise or mislead the party complaining thereof to his prejudice. St. Louis, A. & T. Ry Co. v. Evans, supra, page 370 of 78 Tex., 14 S. W. 798; Brown v. Sullivan, 71 Tex. 470, 10 S. W. 288; First Nat. Bank v. Stephenson, supra, page 436 of 82 Tex., 18 S. W. 583; Wiebusch v. Taylor, 64 Tex. 53, 56; Taylor v. Merrill, 64 Tex. 494, 497; Sealy Cotton Co. v. Gustafson & Spencer (Tex. Civ. App.) 258 S. W. 911, 913, par. 4; Federal Surety Co. v. Ragle (Tex. Civ. App.) 25 S.W.(2d) 898, 902; Hunstock v. Roberts (Tex. Civ. App.) 55 S. W. 514. It seems that the contention of variance in such cases should be raised by objection to the evidence at the time it is offered. St. Louis, A. & T. Ry. Co. v. Evans, supra, page 370 of 78 Tex., 14 S. W. 798; Kelsey v. Myers (Tex. Civ. App.) 29 S.W.(2d) 855, 858, par. 3, and authorities there cited. We do not think that under the facts in this case it can be reasonably contended that plaintiff was surprised or misled by the allegations of appellee’s petition on this issue, nor do we understand that he so contends.

Appellant presents a group of propositions in which he insists that appellee’s petition was insufficient to support the judgment rendered. His specific contention In this connection is that appellee’s petition alleged a joint conversion by all the defendants and did not allege that he individually converted the same. As heretofore shown, appellee sued appellant, Butler and Middleton, and alleged that they were doing business as partners under the name of Corsicana Oil & ¡Refining Company. The names of the other parties defendant followed in that immediate connection. Appellee, however, further alleged not only that the defendants took possession of the machinery described in his petition and converted the same to their own use and benefit, but also that each of them did so. All the defendants in the case. filed a joint answer. The names of appellant, Butler, and Middleton appear therein as individuals, separate and distinct from the Corsicana Oil & Befining Company, the alleged partnership. The testimony showed that no claim to the ownership of this machinery was ever asserted by such partnership. On the contrary, Butler as managing member continued negotiations with appellee for its purchase until a very short time before appellant purchased the interest of the petroleum company in said block of land, together with the machinery and equipment used in connection therewith. The court held that such sale by the petroleum company and such purchase by appellant and his adverse claim thereunder constituted a conversion both by the petroleum company and by him individually, and rendered judgment against both of them for the value of the machinery as found, by the jury. Appellant alone prosecutes this appeal. A partnership at common law is not a legal entity but only ■ñ contractual status. Suits affecting partnership matters must be brought by or against .the. members of the firm. Glasscock v. Price, 02 Tex. 271, 273, 47 S. W. 965; Martin v. Hemphill (Tex. Com. App.) 237 S. W. 550, 553, par. 4, 20 A. L. R. 984; Feldman v. Seay (Tex. Civ. App.) 291 S. W. 350, 352, par. 4. The liability arising out of a partnership contract or the commission of a tort by one or ■more members of a partnership, while joint as to all, is also several as to each of the individual partners. Fowler Commission Co. v. Chas. Land & Co. (Tex. Com. App.) 248 S. W. 314, 315, par. 2; Ray v. Dyer (Tex. Civ. App.) 20 S.W.(2d) 328, 332, par. 5; 47 C. J., p. 886, § 365. All the alleged members of appellant’s firm were parties defendant in this suit. The allegation that each of the defendants-. converted the property involved was a sufficient allegation that appellant himself converted it independent of the alleged partnership.

Appellant, by a group of propositions, contends that the testimony fails to show title to said machinery in appellee. Appellee proved affirmatively the execution and record of its mortgages covering the entire property, a sale thereunder, and its purchase at such sale. The presumption is .that appellee in this matter followed the law and not that it violated it. Haynes v." Western Union. Telegraph Co. (Tex. Com. App.) 231 S. W. 361, 362, par. 2, and authorities there cited. A contention that such sale was invalid and insufficient to reinvest appellee with the title to such machinery must therefore be' supported by affirmative proof of some fatal defect therein. The specific matters relied on were that the posting of notices of the sale was insufficient, that no bill of sale was executed or delivered, and that appellee did not acquire- possession of the property purchased. The testimony showed affirmatively that three notices of the sale of. said machinery under appellee’s mortgages were posted; that one of such notices was posted at the cdurthouse door, and another in the town of Powell. There is no contention that either of these places was not public, within the meaning of the statute. The testimony showed that the third notice was, in accordance with the express requirements of article 3812 of our Revised Statutes, posted on the building that housed the machinery and Where it was sold; that a road through said block of land ran by the side of said building and was traveled by the public at that time as well as by those interested in the lease. We think the place at which such notice was posted was sufficiently public to meet the requirements of the law. Appellee, in addition to posting the notices, published a copy thereof in a newspaper at Corsicana. The power contained in appellee’s mortgages authorized a sale of the property at either public or private sale, with or without notice. The fact that appellee elected to sell the same at public auction did not constitute a waiver of such authority nor impose upon it the duty of. giving notice of the time and place of sale in the specific manner required by the statutes for the sale of personal property under execution: Geiser Mfg. Co. v. Krogman, 111 Iowa, 503, 82 N. W. 938-940; Lexington Bank v. Wirges, 52 Neb. 649, 72 N. W. 1049, 1050; Marseilles Mfg. Co. v. Perry, 62 Neb. 715, 87 N. W. 544, 545., The execution and delivery of a bill of sale is not necessary to pass .title to personal property. Fidelity Union Fire Ins. Co. v. Ballew-Satterfield Co. (Tex. Civ. App.) 10 S.W.(2d) 163, 164, par 1. Mr. Knox for the bank requested appellee’s representatives not to remove the property. Appellee thereupon employed a watchman and placed the same in his charge. None of these matters were sufficient to invalidate the title acquired by appellee by its purchase at such foreclosure sale.

Appellant contends that the testimony was insufficient to support the finding of the jury that the property converted was of the value of $4,000. There was testimony tending to show that the-machinery involved herein was used by Butler and his cotrustees or partners from May 24, 1926, until the sale by the petroleum company to appellant on March 14, 1928. There was also testimony that during such use various repair parts were purchased by Butler and used to replace like parts worn out thereby. Appellant was president, of the petroleum company. That company . did not claim such replacements. Appellant in his individual capacity purchased the lease and equipment from the petroleum company, but he purchased such replacements separately from Butler or the oil and refining company. Appellee asserted no claim to such replacements. Its action was for the conversion of the ■ original machinery purchased by it at such foreclosure sale. Appellant testified that he knew the reasonable market value of the machinery involved in the suit and that the value of the same was $4,000. Appellant also proved by his witness Bryan that the value of the machinery in question, excluding the replacements purchased and added thereto by- Butler, was $4,000. The jury assessed the value thereof. - at that sum. Appellant made no objection' to the manner in which the issue of value was submitted to the jury. There being evidence to support the same, appellant is bound thereby-

Appellant presents a group of propositions in which he contends that the court erred in entering judgment against him' in favor of appellee in the absence of an affirmative finding by the jury that he converted its property, as alleged in its-petition. He also contends. in this connection that appellee waived any right to recover herein by not requesting the court to submit such issue. We have examined all of appellant’s assignments of error and find that none of them raise the issue presented by said propositions. Appellant suggests incidentally in this connection that said propositions present fundamental error. We do not think so. The submission of an issue supported by uncontra-dicted testimony of such conclusive nature that reasonable minds cannot differ as to the effect thereof is neither necessary nor proper. Such an issue is one of law and should be determined by the court. Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S. W. 499, 503, par. 5, 44 A. L. R. 627; Hebert v. New Amsterdam Casualty Co. (Tex. Com. App.) 3 S.W.(2d) 425, 426, par. 3; Guerra v. Garcia (Tex. Civ. App.) 258 S. W. 531, 532, par. 2; Phoenix Furniture Co. v. Kay (Tex. Civ. App.) 10 S.W. (2d) 422, 425, par. 8; Peeler v. Smith (Tex. Civ. App.) 18 S.W.(2d) 938, 939, par. 3. Before we can determine that the testimony in this case failed to show without contradiction the conversion of appellee’s property by appellant with such certainty that reasonable minds 'could not differ on the issue and that a controverted issue of fact for the determination of the jury was therefore raised, we must search the entire statement of facts and weigh the testimony recited therein. An error that requires such consideration of the statement of facts does not come within the definition of fundamental error announced by our Supreme Court. Houston Oil Co. v. Kimball, 103 Tex. 94, 103, 104, 122 S. W. 533, 124 S. W. 85; Ford & Damon v. Flewellen (Tex. Com. App.) 276 5. W. 903, par. 2; Blackmon v. Trail (Tex. Com. App.) 12 S.W.(2d) 967, 968, pars. 6 and 7; Egan v. Lockney Farmers’ Co-operative Society (Tex. Com. App.) 284 S. W. 937, par. 1. The authority of a Court of Civil Appeals to reverse a judgment is limited to consideration of errors duly assigned, or apparent upon the face of the record and coming within the definition of fundamental error as above limited. Such court has no right to consider "other errors, however willing it may be to do so. W. T. Waggoner Estate v. Sigler Oil Co. (Tex. Com. App.) 284 S. W. 921, 926, par. 2; Blackmon v. Trail, supra, page 968, pars, 4 and 5 of 12 S.W.(2d). We therefore find it unnecessary to determine appellee’s counter contentions that the uncontradicted evidence in this case shows a conversion by appellant as a matter of law, or, in the alternative, that the submission by the court of the issue of value without objection on the part of appellant to the form of such submission constituted the submission of a material part of the controlling issue of conversion and negatived a waiver thereof, under the rule announced in McDaniel v. Orr (Tex. Com. App.) 30 S.W.(2d) 489-491; North v. Atlas Brick Co. (Tex. Com. App.) 13 S.W.(2d) 59, 61; Driskill Hotel Co. v. Anderson (Tex. Civ. App.) 19 S.W.(2d) 216, 217, pars. 4 to 6, inclusive.

We have considered all the other propositions presented by appellant as ground for reversal and are of the opinion that none of them require or justify such action. The judgment of the trial court is therefore affirmed.


author: HICKMAN, C. J.

text:
    AMERICAN SURETY CO. v. FIELDER.
    No. 788.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 13, 1931.
    Rehearing Denied March 27, 1931.
    Davidson, Doss & McMahon, of Abilene, for appellant.
    Stinson, Hair, Brooks & Duke, of Abilene, for appellee.
   HICKMAN, C. J.

A Ford coupé was stolen from appellee in ■ Abilene, Tex., and taken to the state of Florida, where it was sold to one John P. Cox. Appellee located the ear in the possession of Cox, and brought suit in the circuit court of Santa Rosa county, Fla., in the nature of a replevin against Cox to recover it. In connection with his suit, he executed a replevin bond in the principal sum of $1,000, with appellant as surety. The case was tried in the Florida court in the absence of appellee, and a judgment was rendered therein in favor of Cox and against appellee and his surety, the appellant, for the sum of $525, besides costs amounting to $15.62. The instant suit was instituted by appellant against appellee for reimbursement; it being alleged that appellant had paid off the judgment rendered.in Florida. Appellant also sought attorneys’ fees in the sum of $100, alleged to have been incurred as a direct result of its Suretyship. Various special defenses were interposed by the appellee. We find it unnecessary to consider these defenses, for the reason that the only question before us is the alleged error of the trial court in overruling the motion of appellant for a peremptory instruction. The cause was submitted to the jury on special issues embodying two of the defenses pleaded by appellee, which issues were answered in appellee’s favor.

Appellant’s brief contains eleven propositions, each assigning a different reason why it is claimed the peremptory instruction requested by it should have been given. We have concluded that the court did not err in overruling the motion for a peremptory instruction. The only evidence in the record that appellant ever paid off and discharged the judgment is an assignment of the judgment to it by the plaintiff, Cox. This assignment does not disclose what amount was paid by appellant in satisfaction of the judgment. It is a well-settled rule of law that a surety will not be allowed to speculate on his principal, but is entitled to recover against him only the amount or value which he (the surety) has actually paid. In the absence of any proof of this fact, appellant was not entitled to a peremptory instruction in its favor. 50 C. J. p. 274, § 457; 21 R. C. L. p. 1100, § 136; Id. p. 1124, § 161; Price v. Horton, 4 Tex. Civ. App. 526, 23 S. W. 501.

Our views on this question render it unnecessary for us to consider and determine whether there exist other reasons why the motion should not have been granted. The judgment of the trial court will be affirmed.

On Rehearing.

In its motion for rehearing appellant cites the case of Reynolds v. Skelton, 2 Tex. 516, as authority for the contention that the possession by it of an assignment of the judgment was prima facie proof that it had paid the amount of the same. We find that this same authority was cited in a reply brief filed herein before the case was submitted, but we did not discover this reply brief among the papers of the case, and did not read same in our original consideration of the case. Our failure to do so is not chargeable to appellant’s attorneys. As noted in the original opinion, appellant offered in evidence a certified copy of the judgment and an assignment thereof to it by the judgment creditor. The judgment on its face discloses the amount of the recovery, and also the amount of the costs. The case above cited is authority for the conclusion that the assignment was sufficient evidence of the payment by appellant .of the full amount of the judgment. There was no rebutting evidence to the contrary, and it was not therefore necessary for appellant to offer any further proof on the issue. See, also, 50 C. J. p. 271.

Having sustained this contention of appellant, it becomes necessary for us to consider appellee’s defense. The ease was submitted to a jury on two issues, and the nature of the defense urged is disclosed by the issues submitted, which were as follows:

“Question No. 1: Did the Agent of -the American Surety Go. at Milton, Florida, make, or acquiesce in the statements to defendant, O. B. Fielder, if any such statements were made, that the controversy over the Ford Coupe was settled-and that he could take the ear and come on home as that was the last of the controversy? Answer ‘Yes’ or •No.’
“If you have answered Question No. 1 ‘Yes,’ then you will answer this question.
“Question No. 2: Did the defendant Fielder rely on such statements or acquiescence, i-f any were made, by said Agent, to the extent that he would not have come bn home and acted as he did had it not been for such statements or actions on the part of said Agent of the Surety Company? Answer ‘Yes’ or ‘No.’ ”

Each of these issues was answered in the affirmative, and upon this verdict judgment was rendered for appellee. Upon a consideration of the record, we have concluded that there was no evidence supporting any defense for appellee and that the motion for peremptory instruction should have been granted. The evidence would seem to present a case of negligence against appellee’s attorney Wiggins, whom he employed in Florida to represent him in the litigation, but, since that attorney is not a party to this suit, and his side of the controversy has not been developed, we shall not convict him of negligence in this opinion.

As completely exonerating the appellant from any fraud or neglect of any duty it owed to appellee, we quote the following pertinent testimony given by the appellee himself, which was the only testimony in the record as to these facts:

“After I got to Florida I found the car in the possession of a man whose name, they told me, was John P. Cox. If I am allowed to tell -what he said — he refused to give it up, he wouldn’t turn it over to me, he says ‘if it’s your ear you should have it’ but — no, he was not at Milton, he was at his home about ten miles from town.
“I did afterward have a conversation with the agent of the plaintiff, American Surety Company of New York. We went to him to make that bond. They wouldn’t turn the car over to us, we were at outs what to do. The attorney we got said we would have to make a replevy bond. I said I couldn’t make a replevy bond there, I didn’t know anybody there, so he suggested that I go over and talk to this bonding company. I went over there and had a talk with the agent of the bonding company, he didn’t much want to make the bond but we explained to him that it would only be a period of three days before we could have a trial, the bond would run three days, and so he made the bond and I paid him for making it. I paid him $15.00 for the bond. After that, the deputy sheriff went with us. and he got into the car and came back to town with Mr. Cox. Then the sheriff kept the car after that under lock and key.
“At the end of the three days’ time I was there at Milton, Florida, ready for trial. I was anxious to get a trial and anxious to get. away.
“We talked to the agent that made the bond with reference to getting possession of the. car. After that they turned the car over to me and I went to the agent and told him they had turned the car over to me and that they told me the thing was all settled.- I went to him and told him that the sheriff had let me have possession of the car. The car was turned over to me by the sheriff. The agent was very pleasant about it, he wished me well and said he was glad I was on my way and if I was ever again in Florida to come back to see him; everything was all right with him. Sure, X relied on what he stated to me, they had my car and I couldn’t get it until they turned it over to me.
“I made that bond on or about May Seventh; I left for Abilene on the evening of May Tenth. * * *
“I showed the agent of the Bonding Company the bill of sale and registration numbers in proof of my claim to the car; I left them there with the Court. I relied upon the statement- of the sheriff and the attorney and the bonding company that I would not have to be there further and could go home. I went into the agent of the bonding company’s office and told him they had turned me over the car and asked him if it was all right and he said Yes, sir, everything was all right. I had agreed with him that I would not leave without seeing him. No, sir, the sheriff did not go with me to the office of the agent of the bonding company at that time. Yes, I had agreed that I wouldn’t go away and leave him the sack to hold for those three days, that was all of the time the bond was made for. The trial was set down for three days after the bond was made; trial was set down on the third day. Yes, I was there when the trial was called. I do not know of any other person I could have gone to for information that I could go home,- no one else was involved.”

Upon cross-examination he testified:

“It seems I did start a suit in Florida, I had it started. I did have an attorney, J. T. Wiggins. I paid him a fee of $35.00 and was to pay him more when he got the car. Yes, he was there when the car was turned over to me. The Sheriff was also there when the car was turned over to me. X went to the agent- of the American Surety Company as I had agreed to. The authorities told me the case was over; I asked him if everything was all right and he said it was. No, I didn’t know better than that, I did not know that the case was not over.
“I did authorize Stinson, Hair, Brooks and Duke to write a letter to ,T. T. Wiggins. In that letter they do state that Mr. Wiggins did not take depositions of any witnesses here, and that you could not understand why Mr. Wiggins did not develop my side of the case. The depositions to be taken were of men that knew about the ownership of the car. We found out later that the case was not over but when we left there we supposed it was. I told Mr. Wiggins I would furnish him all the references he wanted.- No, I did not expect him to take any more evidenefe. No, we did not -have any understanding about it, they told me that the ease would be thrown out and it was over. I did rely upon the sheriff and the bonding company’s agent. The sheriff had possession of the car. It is hard to explain it all, the way we talked, we' had all been together, Mr. Cox’s attorney and this bonding man and the sheriff, and when it was agreed th-at we would not try the case and it was disposed of it was all in the presence of the bonding company’s agent and a part of it was in his office. No, the bonding company’s agent was not there when the car was turned back to me. I took that information to the bonding company’s office and told him what they had told me. I told him I was going on home. I have not been back to Florida since that time. I do not know whether or not my attorney appeared in this case. I do not know whether this agent Thompson still lives in Milton, Florida. I do not know whether or not the company may have appointed a new agent at the time this case was called.”

In addition to this he offered in evidence a letter written by his Abilene attorneys to his Florida attorney, as follows:

“October 19, 1926.
“Mr. J. T. Wiggins, Milton, Florida.
“Dear Sir: Mr. O. B. Fielder has received letter by registered mail from the American Surety Company, at its Atlanta, Georgia office under date of October 16th, advising that' John Cox had recovered judgment against him for $525.00, with $15.62 cost, at the last term of the Circuit Court of Santa Rosa County, Florida, and demanding that Mr. Fielder send Cashier’s Check for $540.62, to cover such judgment.
Mr. Fielder desires to know if judgment ■has been in fact rendered against him and what steps you would advise for him to take. 1-Ie says you never took the depositions of any of his witnesses here, and he does not understand why you went to trial without developing his side of the case. Will you kindly advise us?
“Yours truly,
“Stinson, Coombes & Brooks,
“CEC:GG By--”
And the following letter from the Florida attorney to the Abilene attorneys:
“October 30, 1926.
“Stinson, Coombes & Brooks, Attorneys at law, Abilene, Texas.
“Gentlemen: I have your favor of the 27th inst., in reference to O. B. Fielder vs John Cox, asking me what steps can be taken to re-open this case and procure hearing upon its merits. In reply to same I beg to advise I am frank to say in my opinion there is not a possible chance to have this case re-opened.
“Yours very truly,
“[Signed] J. T. Wiggins.”

No discussion of this evidence is required. It wholly fails to make out any case against the appellant. There is not even a showing that appellant knew the case was to he tried. The theory seems to be that appellant owed to appellee the duty to maintain an agency at Milton, Ela., to take charge of the litigation and keep him informed as to the progress thereof. We know of no rule of law imposing such duty upon a surety in a replevin bond. That duty rested on appel-lee’s attorney, Wiggins, or the officers of tlie court.

In its petition the appellant prayed for reasonable attorney’s fees based upon provisions in the bond and application for bond. The amount of the attorney’s fees claimed in the petition was $100. No evidence was offered in support of this allegation and no issue thereon requested. We must therefore construe the record just as if the .entire matter of attorney’s fees had been waived. Thus construing it, there is no issue to be retried. The case was fully developed. All of the testimony with regard to the facts relied on as a defense was given by the appellee himself. We must presume that, if there were other facts, he would have testified to them.

It is therefore our order that the judgment heretofore rendered be set aside, that the motion for rehearing be granted, and that judgment be here rendered for appellant against appellee for the sum of $540.62, with interest thereon at the rate of 5 per cent, per annum from December 11, 1926, the date said judgment was assigned to appellant, together with all costs in the court below and in this court.