author: TIREY, Justice.

text:
    EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Appellant, v. Rosa Tiodora GALLARDO, Appellee.
    No. 3976.
    Court of Civil Appeals of Texas. Waco.
    July 26, 1962.
    Rehearing Denied Sept. 20, 1962.
    Riley, Jones, Boyd, Westbrook & Lovelace, Waco, for appellant.
    Ben J. Johnson, Waco, Bradley & Geren, Groesbeck, for appellee.
   TIREY, Justice.

This is a compensation case. The verdict was favorable to plaintiff and on the verdict, the Court awarded to plaintiff the sum of $10,771.39, such sum being the amount of the award for 401 weeks’ total and permanent disability at a compensation rate of $29.76 a week (the wage being stipulated), after deducting the amount of $233.44 previously paid to the plaintiff and allowing interest at the rate of 4% per annum on the past due installments and after discounting all future installments at the rate of 4% per annum.

The judgment is assailed by 31 points. Appellant has briefed together Points 1, 2, 3, 4, IS, 29 and 30. Appellant says that they are briefed for the purpose of clarity and to permit a presentation of appellee’s work activities before and after the accident of October 19, 1959, because it bears upon the question of evidence, sufficiency of evidence and the issues related to total incapacity.

Point 1 is to the effect that the Court erred in overruling appellant’s exceptions to Issues Nos. 1, 2, 3, 4, 5, 6, 7 and 8 of the Court’s Charge, wherein the Court submitted to the jury the question of whether ap-pellee suffered incapacity during the period from January 7, 1960 to January 27, 1961.

Point 2 is to the effect that the Court erred in entering judgment for total and permanent disability dating from October 19, 1959 up to and including January 27, 1961, because the overwhelming weight of the evidence shows that appellee was not totally incapacitated during such period, and that total incapacity during such period did not exist; that the evidence is insufficient and there is no evidence of total incapacity during such period.

Points 3, 4 and 29 are to the same effect.

Point 15 com plains of the failure of the Court to submit Appellant’s Requested Issue No. 9 inquiring as to whether or not appel-lee’s disability after January 7, 1960 was produced wholly by appellee’s failure to use her right arm and shoulder, because there was evidence to support the submission of such issue.

Point 30 is the Court erred in failing to sustain its exception to Issue No. 3 of the Court’s Main Charge inquiring as to whether total incapacity is permanent or temporary, and appellant says that the issue submitted improperly places the burden of proof, because appellee had the burden to prove that such was not temporary.

We have made a very careful study of the entire statement of facts and have carefully summarized the testimony pertinent to the injury sustained by the claimant and medical testimony tendered with reference thereto. This summary is long and we do not believe that under the decisions in Texas the factual situation has any precedential value, and that this comprehensive statement of the factual situation is of interest only to the attorneys for the litigants. On account of the foregoing view we have prepared a summary as an appendix to the opinion to be filed with the opinion but not to be published.

Going back to appellant’s major complaint in this cause, it is that judgment for total and permanent disability dating from October 19, 1959 is erroneous because the overwhelming weight and preponderance of the evidence shows that appellee was not totally incapacitated during the period from January 7, 1960 up to and including January 27, 1961. We have set out in some detail the work record of the claimant in the appendix. Pertinent here, it shows that from January 7, 1959 up to and including October 19, 1959, total hours worked 1634, with 36 hours overtime; total earnings including the 36 hours overtime, $1719.73. From January 7, 1960 to October 19, 1960, claimant’s work record is $1.00 per hour; overtime 60 hours; total hours 1580; total earnings, including overtime, $1606.00; days missed from work 6. Work record from December 14, 1959 to January 27, 1961 which is the total period that appellee worked after the accident is: total hours 2172; total earnings $2202.00; total overtime 60 hours. The effect of the medical testimony (summarized) in the appendix is: Dr. Corbett, who saw claimant in January of 1960, was of the opinion that disability was due to the blow that she received on the right breast, and that the effect of the blow was to section a part of the serratas muscle, and that was causing her pain and limitation of motion in her right arm and right shoulder, and that he would not pass her on a pre-employment physical for full labor.

Dr. McKenzie’s testimony is to the effect that the claimant had fully recovered from the blow by January 7, 1960 and that she was able to go back to work; that the damage to the 7th rib had fully healed and that the claimant’s testimony as to spitting up blood had no relation to the blow she sustained, and that she was employable.

Dr. Joe Woodward of Waco, an orthopedic surgeon, examined the claimant approximately 9 months after she received her injury and he went into great detail as to the effect of the blow claimant received in her right breast and, according to his findings the damage to the 7th rib had substantially healed and that he found no muscle spasm in the right arm or right shoulder attributable to the blow. He did testify to the effect that the limitation of the movement of the right arm was 110 degrees, at which point the patient said she felt pain, and that while she had what is termed a frozen shoulder, this condition was caused by the patient’s failure to use the arm or exercise the arm and that he advised physiotherapy to correct this condition and that it was his belief that physiotherapy would restore the right arm and shoulder to its normal function. Dr. Woodward, on request, made an examination of the patient during the trial, which was in July, 1961, and found that the arm was swollen to some extent; that the limitation of movement of the arm was about 80 degrees when the patient complained of pain; whereas when he first examined the patient, the limitation was 110 degrees. But as heretofore stated, Dr. Woodward’s view was that although the patient complained of pain and shoulder limitation of use of the arm, yet this condition was due to disuse and failure to exercise as he had instructed her to do at the time he made his examination in September, 1960; that claimant’s condition was worse at the time of her examination at the trial than when he saw her previously. We believe the foregoing is a fair appraisal of the medical testimony regarding the claimant.

Needless to say, in view of the claimant’s work record, this cause presents a situation that has given this court great concern.

In Hood v. Texas Ind. Ins. Co., 146 Tex. 522, 209 S.W.2d 345, our Supreme Court expressly held that opinion testimony does not establish any material fact as a matter of law. The opinion of our Supreme Court in this case shows the extent of the liberality the Supreme Court applied to our compensation law.

Our Supreme Court in Eubanks v. Texas Emp. Ins. Ass’n, 151 Tex. 67, 246 S.W.2d 467, reannounced and reapplied the doctrine to the effect that the issue as to injury of a claimant is one of fact for the jury’s determination. See Points 1 and 2.

In Texas State Highway Dept. v. Kinsler, 230 S.W.2d 364 (w. r.), we find this statement:

“We think it too well settled to require discussion that the fact that an injured employee continued to work and make money after his injury is not a bar to recovery for total and permanent disability if the evidence supports a finding of a court or jury that he is in fact so disabled.”

In Mabry v. Travelers Ins. Co., 193 F.2d 497, Fifth Circuit, we find this statement:

“Pinched by poverty, beset by adversity, driven by necessity, one may work to keep the wolf away from the door though not physically able to work; and, under the law in this case, the fact that the woman worked to earn her living did not prevent a jury from finding, from the evidence before it, that she was totally and permanently disabled even while working.”

In so far as we are able to determine up to this date, the law is well settled in this State that a workman is not necessarily precluded from recovering workmen’s compensation benefits for a period of time in which he is gainfully employed, by reason of working and earning wages following the date of his injuries. See Gulf Cas. Co. v. Jones, Tex.Civ.App., 290 S.W.2d 334, p. 339, n. r. e., Pts. 3, 4 and 5, and cases there cited; McGowen v. Pacific Employers Ins. Co., 5th Cir., 205 F.2d 533, Pts. 1 and 2; Choate v. American Motorist Ins. Co., Tex.Civ.App., 323 S.W.2d 188, no writ hist.; Muro v. Houston Fire & Cas. Ins. Co., 310 S.W.2d 420, n. r. e.; Associated Indemnity Corp. v. Potts, 5th Circuit, 164 F.2d 1002; Pennsylvania Threshermen & Farmers Mut. Cas. Co. v. Gloff, 5th Circuit, 238 F.2d 839; Great American Ind. Co. v. Segal, 5th Circuit, 229 F.2d 845; Traders & General Ins. Co. v. Heath, Tex.Civ.App., 197 S.W.2d 130; Consolidated Cas. Ins. Co. v. Baker, Tex.Civ.App., 297 S.W.2d 706, n. r. e., Pts. 7 and 8; Bituminous Cas. Corp. v. Sanders, Tex.Civ.App., 351 S.W.2d 315 (n. w. h.); and Travelers Ins. Co. v. Seabolt, Sup.Ct., Texas Sup.Ct.Journal, Vol. 5, July 21, 1962, No. 40, p. 521.

It is true that this record discloses that appellee had worked many days since her injury in 1959, putting in more hours of overtime in that one year than she did the year prior to her injury. The evidence shows that claimant is a Latin, uneducated and has difficulty in speaking English. She testified to the effect that she worked, although she was not able to work, and could not have held a job but for the help that she received from other employees, because she was not able to use her right arm and could not bend over, as we have heretofore detailed. Appellant puts much stress on the undisputed fact that after claimant was released in 1961 she made application for unemployment insurance, and in the application stated she was able to work, and that she drew unemployment compensation until a short time before the trial of this cause. Appellant cites and relies on Texas Employers Ins. Ass’n v. Vineyard, Tex.Civ.App., 316 S.W.2d 156, no writ hist., and Texas Employers’ Ins. Ass’n v. Moran, Tex.Civ.App., 261 S.W.2d 855, er. dis., and cases there cited. We do not believe the factual situation here before us brings this cause within the rule announced in the foregoing decisions. First of all, it is a part of the public policy of our state that the Workmen’s Compensation Act shall be liberally construed. Our Supreme Court has consistently adhered to such views. See Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73. Until the Supreme Court changes or modifies the rules announced by the decisions here cited, we do not feel that we are authorized to overturn the jury verdict, because there is medical testimony to the effect that the claimant was not employable (for full labor) by reason of the injury she had received; that she was working because she had to support herself and two children; that she was working while she was in pain and at times when she had fever; and that she had no choice because she had to support herself and two small children.

We realize that the application of the foregoing rule may seem harsh to the insurance carrier, since it relies on medical testimony of physicians who are outstanding in their field, plus the work record of the claimant; however, the jury had the right to pass upon this factual situation where evidence of probative value is tendered. We have carefully reviewed all the testimony shown by this record, and we cannot honestly say that the verdict of the jury is so against the great weight and preponderance of the evidence as to be manifestly unjust under the doctrine announced in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. See also “No Evidence” and “Insufficient Evidence”, by Justice Calvert, (Reprint from April, 1960, 30 Tex.L.Rev. 803).

We have given careful consideration to appellant’s pleadings, its exceptions to the charge and the special issues it requested, and we are of the view that the Court’s charge correctly submitted the issues tendered by the pleadings and the evidence, and that the assigned errors of appellants with reference thereto are not well founded, and each is overruled. We have likewise examined carefully each error assigned, and each is overruled.

The judgment of the Trial Court is affirmed.


source: Caselaw Access Project

author: FRASER, Justice.

license: Public Domain

text:
    F. H. BRADFORD, Appellant, v. C. E. MACK et al., Appellees.
    No. 5505.
    Court of Civil Appeals of Texas. El Paso.
    June 20, 1962.
    Rehearing Denied July 25, 1962.

      See also 359 S.W.2d 941.
    Arthur A. Klein, Harlingen, for appellant.
    Glusing & Sharpe, Kingsville, King, Anderson & Porter, Corpus Christi, for ap-pellees.
   FRASER, Justice.

This is an appeal from a case in the above district court where the plaintiff-appellant, Bradford, won a money judgment but was denied his plea to delete the total .'amount of interest from a conditional sales contract.

Appellant F. H. Bradford, who was plaintiff below, had done business with one C. E. Mack and his garage, known as C. E. Mack Pontiac, for some years. On his way from his work in Victoria to his home in Harlingen, plaintiff stopped at defendant’s place of business to have the transmission of his car checked out by the mechanics. It was late Saturday afternoon, and during the conversation C. E. Mack suggested that plaintiff try out one of their demonstrator cars which they had for sale. The demonstrations and conversations resulted in an agreement by plaintiff to buy the car. Plaintiff’s testimony is that he trusted C. E. Mack, and for that reason signed the papers proffered to him in blank. He maintains that their trade was clear and distinct, and that he was to turn over his other Pontiac for the new one and pay $2100.00 difference. He stoutly maintains, also, that he had advised C. E. Mack that he owed a bank in Harlingen some five or six hundred dollars secured by a chattel mortgage on the car he was turning in. The agreement being consummated, he drove the new car home. The papers arrived at his home during his absence, and his wife testified that she put them in a lock box without opening the envelopes. Bradford testified that he paid eighteen payments as they became due, because that was the number of payments or coupons in the book sent to him by General Motors Acceptance Corporation, which had purchased the conditional sales contract from C. E. Mack. After completing his eighteenth payment, Bradford was notified that he was in default, and then found out that the balance filled in on conditional sales contract was $2920.00 instead of $2100.00, and that the sum of $630.84 had been added for finance or carrying charges. Bradford testified that their contract was as set forth hereinbefore, and “reasonable carrying charges”. He continued to pay on this contract until he had paid an amount in excess of $2300.00. Bradford, as plaintiff, then brought suit against C. E. Mack and C. E. Mack Pontiac, asking for reformation and recision of the contract and, in the alternative, damages against C. E. Mack for fraudulent misrepresentation, alleging that Mack had promised he would fill in the contract in accordance with their verbal agreement and had not done so. GMAC, to whom the contract had been sold by defendant Mack, filed a cross-action seeking to recover the balance of the contract, which amounted to $1365.00 including attorneys’ fees. During the trial Bradford abandoned his plea for reformation and re-cision, electing to proceed against defendant Mack solely on the claim for damages. He also filed a defense of usury against the claim of GMAC, seeking to have the interest or finance charge deleted and subtracted from the amount sued for by GMAC. The jury found that C. E. Mack had made fraudulent representations to Bradford and awarded him, as damages against Mack, the exact sum due or claimed by GMAC, plus $500.00 exemplary damages, and the court entered judgment for these amounts. With reference to Bradford’s defense against GMAC, the court denied his plea of usury and awarded judgment to GMAC. So it will be seen that in the trial court Bradford recovered from Mack the exact amount GMAC claimed he owed as a balance, plus $500.00 exemplary damages. As a result of the judgment denying his plea of usury, Bradford was then left having to pay the entire sum of $1365.00 to GMAC.

The appeal here is only from that part of the action of the court in holding that the contract was not usurious and that therefore the charge of $630.84 should not be deleted from the amount 'due GMAC, as provided by Article 5071, Vernon’s Ann. Civ.St., hereinafter set forth in this opinion.

Appellee’s position is that Bradford, having chosen to abandon his plea for re-cision and reformation, and having recovered his damages against Mack, therefore could not gain additional compensation by having the finance charge deducted from the amount sued for on the cross-action filed by GMAC; this, on the ground that same would be double recovery. So we are concerned here with the question of whether or not Bradford could recover his damages against Mack for fraud and misrepresentation and, at the same time, succeed in his defense of usury to the cross-action of GMAC.

It has long been established that a litigant seeking to gain an advantage by virtue of one asserted remedy or defense must abandon or waive any defense or remedy inconsistent therewith. Kingsbery v. Phillips Petroleum Co., Tex.Civ.App., 315 S.W.2d 561; City of Houston v. Adams, Tex.Civ.App., 269 S.W.2d 572 (aff’d 154 Tex. 448, 279 S.W.2d 308). We are of the opinion, however, that such principle does not apply in the present case. Bradford had his suit and recovered against the man who defrauded him. He, in turn, was then faced with a cross-action by GMAC, who had purchased the contract. His defense to this cross-action was usury, a different position than that taken against Mack. The contract shows on its face this finance or carrying charge, and it is set out as such. There seems to be no controversy that the charge is in excess of the legal amount of interest allowed in the State of Texas. Article 5071, V.A.C.S., provided as follows:

“The parties to any written contract may agree to and stipulate for any rate of interest not exceeding ten per cent, per annum on the amount of the contract; and all written contracts whatsoever, which may in any way, directly or indirectly, provide for a greater rate of interest shall be void and of no effect for the amount or value of the interest only; but the principal sum of money or value of the contract may be received and recovered.”

Appellee argues that the price charged Bradford was a credit price and therefore was not usurious under the line of cases headed by Rattan v. Commercial Credit Company, Tex.Civ.App., 131 S.W.2d 399, where two prices are quoted, one for cash and one for credit; the difference between the two is not interest. Appellee further argues that Article 5074a, V.A.C.S., applies because it holds as follows:

“If the seller shall have furnished the purchaser an itemization in writing of such cost items as the seller has taken into consideration in arriving at the time credit price ⅜ * * said written contract shall constitute prima facie evidence of the fact that said motor vehicle was sold for a time credit price.”

The record appears to indicate here, however, that Article 5074a, V.A.C.S., does not apply because the seller failed to itemize each item taken into consideration in arriving at the time price. We will not enlarge on this point other than to say that certain items, such as a balance owed by Bradford on the car he was turning in, and other items, were apparently not set forth. In any event, inspection of the contract in question reveals that $630.84 is set out as a separate and distinct item for “finance charge”. According to the terms of Article 5071, V.A.C.S., if this amount is usurious, then the interest provision of the contract is void. It appears to us that this amount is usurious. Therefore, we believe that such amount cannot be collected. It must be noted that the provisions of this, statute point out that the interest provisions, are void, not voidable. Therefore, we do-not believe that Bradford abandoned this-defense in recovering damages against the car seller, Mack. This contract, with this usurious interest amount clearly set forth-on its face, is obviously void as to the interest amount of $630.84. Hence, such amount is uncollectible and should be deducted from the amount allowed by the court to General Motors Acceptance Corporation.

The court found that this contract was not usurious, but we do not agree with this finding, as the jury found that only one price' had been quoted to Bradford, and (for the reason set forth above) this finance charge is clearly itemized and set forth on the face of the contract, and is obviously an amount in excess of the legal rate of interest permitted. Further, Mr. Arthur A. Klein testified that he had made a pretty thorough study of interest and discount rates because he represented several banks and finance companies, and that the interest in this particular contract, based on the chart furnished by GMAC which, according to the record is 6.8 per cent on a per-month payback basis, actually amounts to a little oyer 13 per cent simple interest.

For the above reasons, the judgment of the trial court is reversed and rendered in favor of the appellant in the amount of $630.84. The judgment of the trial court will be reformed so as to deduct the amount of $630.84 from the amount of the note on which the trial court allowed General Motors Acceptance Corporation judgment against appellant Bradford.

ON MOTION FOR REHEARING

Appellee General Motors Acceptance Corporation has filed its motion for a rehearing relative to the matter of the finance charge, again alleging and maintaining that such was not usurious and that the transaction in controversy complied with and came under the protection of Article 5074a, V.A.C.S.

We have reviewed the entire matter and do not find any additional information or sufficient reason in the motion to reverse our original holding.

It is clear from the record that C. E. Mack did not, in the contract which he sold to G.M.A.C., correctly and sufficiently itemize the cost items that he took into consideration in arriving at what he calls the time credit price. For example, as will be recalled, appellant Bradford claimed that the difference in the two cars was to be $2100.00, whereas the contract was filled in for the amount of $2920.00. Examination of this contract reveals that it shows a net trade-in value of his old car of $757.70, a documentary fee of $10.00, and a finance charge of $630.84 which includes a $29.60 item for group creditor insurance. And yet, on page 17 of the Statement of Facts, we find this statement by C. E. Mack:

“That $2920.00, he owed $569.00 or $567.00 on his car, I think there was $190.00 some dollars for transmission work, take the $2100.00 and add all that to it, and I think you will come out right • on $2920.00, that’s where the money come from.”

These various items for repair and indebtedness on the original car were not itemized in any place on the contract other than the mere statement that he was allowing $567.00 net trade-in value on the old car. Also, on page 77 of the Statement of Facts, it appears that there was a $60.00 item for sales tax which, according to the statement there found, C. E. Mack stated that he had paid $60.00 for sales tax on a new car. This item does not appear on the conditional sales contract or invoice. Also we have again examined the record and find that there was sufficient evidence to warrant the jury’s finding that only one price had been quoted to the purchaser of the car, F. H. Bradford, that price being $2100.00 difference between his car and the new car. In closing, we might say there were other items, such as the license, tax, and title expenses included.

With reference to the case of Gill v. Universal C. I. T. Credit Corp., Tex.Civ.App., 282 S.W.2d 401, cited and relied upon by G.M.A.C., we should like to point out that the court says at page 407 of that case the following:

“The Wade and other automobile sales contracts on their face and by their plain and unambiguous terms purport to be on the credit or ‘time sales’ contract prices, which contracts were duly signed by each of the purchasers of said automobiles with the provision in said contracts that they had ‘been quoted a time price and a lesser cash price’ and had elected to buy the car for the time price, which contracts were filled out by appellant Gill and accepted by him.” (Emphasis ours).

This, we think, is a very substantial distinction between that case and this one. We think the legal principles set out in Associates Investment Co. v. Sosa, Tex.Civ.App., 241 S.W.2d 703 are still in effect and are applicable here. This case is distinguished from the authority cited by G. M. A. C. in that we have here a definite and distinct jury finding that C. E. Mack quoted only one price to F. H. Bradford, plus the fact that a casual check with the financial or interest compilation will show that the item set forth as a finance charge is usurious.

In re-examining this matter we have discovered an error in our original opinion, and such opinion on file here has been corrected to comply with the facts as they existed at the time the opinion was written. The error consists of the omission of the word “not” in the third paragraph of the opinion, which is found at the bottom of page 2. This word is twice omitted from such paragraph, and the paragraph has been amended so that it now reads as follows:

“The appeal here is only from that part of the action of the court in holding that the contract was not usurious and that therefore the charge of $630.84 should not be deleted from the amount due GMAC, as provided by Article 5071, V.A.C.S., hereinafter set forth in this opinion.”

This change, of course, does not affect the judgment as it was merely an erroneous recital of the findings of the lower court.

The motion of General Motors Acceptance Corporation for rehearing is in all things overruled.


text:
    C. E. MACK et al., Appellants, v. F. H. BRADFORD, Appellee.
    No. 5515.
    Court of Civil Appeals of Texas. El Paso.
    June 20, 1962.
    Rehearing Denied July 18, 1962.

      Glusing & Sharpe, Kingsville, for appellants.
    Arthur A. Klein, Harlingen, for appellee.
   FRASER, Justice.

This is’an'appeal from a case in the above district court where the plaintiff-appellee, Bradford, won a money judgment but was denied his plea to delete the total amount of interest from a conditional sales contract.

Appellee F. H. Bradford, who was plaintiff below, had done business with one C. E. Mack and his garage, known as C. E. Mack Pontiac, for some years. On his way from his work in Victoria to his home in Har-lingen, plaintiff stopped at defendant’s place of business to have the transmission of his car checked out by the mechanics. It was late Saturday afternoon, and during the conversation C. E. Mack suggested that plaintiff try out one ‘of their demonstrator cars which they had for sale. The demonstrations and conversations resulted in an agreement by plaintiff to buy the car. Plaintiff’s testimony is that he trusted C. E. Mack and for that reason signed the papers proffered to him in blank. He maintains that their trade was clear and distinct, and. that he was to turn over his other Pontiac for the new one and pay $2100.00 difference He stoutly maintains, also, that he had advised C. E. Mack that he owed a bank in Harlingen some five or six hundred dollars secured by a chattel mortgage on the car he was turning in. The agreement being consummated, he drove the new car home. The papers arrived at his home during his absence, and his wife testified that she put them in a lock box without opening the envelopes. Bradford testified that he paid eighteen payments as they became due, because this was the number of payments or coupons in the book sent to him by General Motors Acceptance Corporation, which had purchased the conditional sales contract from C. E. Mack. After completing his eighteenth payment, Bradford was notified that he was in default, and then found out that the balance filled in on the conditional sales contract was $2920.00 instead of $2100.00 and that the sum of $630.84 had been added for finance or carrying charges. Bradford testified that their contract was as set forth above, and “reasonable carrying charges”. He continued to pay on this contract until he had paid an amount in excess of $2300.00. Bradford, as plaintiff, then brought suit against C. E. Mack and C. E. Mack Pontiac, asking for reformation and recision of the contract and, in the alternative, damages against C. E. Mack for fraudulent misrepresentation, alleging that Mack had promised he would fill in the contract in accordance with their verbal contract and had not done so. GMAC, to whom the contract had been sold by defendant Mack, filed a cross-action seeking to recover the balance of the contract which amounted to $1365.00 including attorneys’ fees. During the trial, Bradford abandoned his plea for reformation and recision, electing to proceed against defendant Mack solely on the claim for damages. He also filed a defense of usury against the claim of GMAC, seeking to have the interest or finance charge deleted and subtracted from the amount sued for by GMAC. The jury found that C. E. Mack had made fraudulent representations to Bradford, and awarded him, as damages against Mack, the exact sum due or claimed by GMAC, plus $500.00 exemplary damages, and the court entered judgment for these amounts. With reference to Bradford’s defense against GMAC, the court denied his plea of usury and awarded GMAC judgment. So it will be seen that, in the trial court, Bradford recovered from Mack the exact amount GMAC claimed he owed as a balance, plus $500.00 exemplary damages. As a result of the judgment denying his plea of usury, Bradford was then left having to pay the entire sum of $1365.00 to GMAC.

This is a companion case to No. 5505, disposed of in a prior opinion, and the appeal in this case is from the verdict and judgment of the court awarding Bradford, appellee, the sum of $1365.00 damages and $500.00 exemplary damages.

Appellants C. E. Mack et al. present some five points, the first point being that the trial court committed error in refusing to submit their requested issues asking the jury to pass on the question of mistake or mi sunderstanding.

First of all, without reproducing the issues here, they appear to us to be too general in nature and not sufficiently definitive of the information desired and the terms employed. It has long been established that issues must be justified by the evidence and properly worded, with terms contained therein properly defined where necessary. Felmont Oil Corp. v. Pan Am. Pet. Corp., Tex.Civ.App., 334 S.W.2d 449. But, in any event, the record does not justify or require the submission of these requested issues. Appellee Bradford testified flatly that their agreement was that he would pay his old car, the sum of $2100.00, and “reasonable finance charges” for the new car, and that he had notified and advised Mack about the mortgage against the old car held by a Harlingen bank. Mack testified to the contrary, and said that he never intended to absorb the hank balance and other charges. This presents a picture of a definite, concrete difference or disagreement in testimony, and does not present a picture of a mutual misunderstanding. The jury found definitely that Mack had deceived and defrauded Bradford, and the evidence in the record is of sufficient probative force to sustain such a finding. We do not find in this record the elements that would either require or justify the submission of the requested issues. This point is therefore overruled. In other words, the evidence is insufficient to establish or suggest any mutual mistake. Speer v. Pool, Tex.Civ.App., 210 S.W.2d 423.

Appellants’ second point alleges error in the court’s failure to grant his motion for an instructed verdict and the judgment non obstante veredicto, urging in defense that intent at the time of the oral agreement'on the part of Mack to defraud Bradford was not shown. We do not believe that this point is sustained, nor is it the law. In Wilson v. Brooks, 329 S.W.2d 135, the Court of Civil Appeals held :

“We find no fatal variance in the pleadings, and the proof and the evidence were sufficient to show that a fraud had been perpetrated upon ap-pellee, in that the sales contract had not been filled in in the manner agreed upon by the parties.”

There was plenty of evidence here for the jury to find that Mack had filled in the conditional sales contract contrary to the agreement, and that he did so in order to defraud Bradford. Therefore, these jury findings are supported by the record. We think the law with regard to this particular item of the controversy is well set forth in the case of York v. Gregg, 9 Tex. 85 (S.Ct.) :

“The plaintiff had a right to rely on representations and promises, and if deceived and misled by them and the subsequent conduct of the defendant inconsistent with them to his injury, it can make little difference in morals or law whether it was the intention of the defendant originally to deceive or whether he subsequently conceived that intention.”

Therefore, in view of the record, wherein is contained testimony by Bradford that it was definitely and concisely agreed that the contract would be filled in for the amount of $2100.00, rather than $2920.00, and that Mack had deliberately and knowingly changed the amount, we hold that the court acted correctly in overruling appellants’ motion for an instructed verdict and judgment n. o. v. This point is therefore overruled.

We overrule Point 5, which is to the effect that plaintiff had no right to elect to change his action from that of recision to damages. We think it is elementary that a plaintiff has this right, where proper pleadings are present, and the point needs no discussion or authorities to support it.

With reference to Points 3 and 4, we do think the verdict of actual damages, to-wit, $1365.00, is without substantial support in the evidence. There is no way that we can ascertain how the jury arrived at this amount. Bradford claims damage in that the contract was filled in for $2920.00 instead of $2100.00, plus a $10.00 charge that he says was not agreed to. In a companion case we have held that he can recover the complete amount of his interest from GMAC, the purchaser of the contract. We therefore see no ground or justification for damages beyond the difference between $2100.00 and $2920.00, plus the $10.00 documentary charge that was added. This reasoning does not, of course, apply to the amount of $500.00 found as exemplary damages, which we hold to be amply supported by the record.

For that reason, we believe the judgment is excessive in the amount of $535.00. This amount is the difference between the sum of money which Bradford claims Mack wrongfully added to their agreement — to-wit, $830.00 — and the amount of damages awarded by the jury — to-wit, $1365.00. We believe Bradford has only proven that he was damaged the difference between the agreed $2100.00 and $2920.00 which Mack wrote into the contract after Bradford’s departure, plus $10.00 documentary fee, and can therefore recover only such $830.00. This amount, subtracted from the amount awarded by the jury. — -to-wit, $1365.00 — leaves an excess of $535.00.

The judgment being excessive in that amount, we suggest that the appellee file a remittitur in the sum of $535.00 on or before the first day of July, 1962. If this is done, the appellants’ points will all be overruled and the judgment of the trial court will be affirmed; otherwise, the case will be remanded for a new trial.


text:
    Alt D. MILLIGAN et al., Appellants, v. The RICHLAND INDEPENDENT SCHOOL DISTRICT OF NAVARRO COUNTY, Texas, et al., Appellees.
    No. 4018.
    Court of Civil Appeals of Texas. Waco.
    June 21, 1902.
    Rehearing Denied Sept. 13, 1962.

      Mays & Jacobs, Corsicana, for appellant.
    Haley, ICoehne, Fulbright & Winniford, W. C. Haley, Waco, Don Pevehouse, Corsi-cana, W. A. Keils, Jr., Teague, for appellee.
   TIREY, Justice.

This cause is a direct attack upon the action of the Board of Equalization of the Richland School District of Navarro County, Texas, because plaintiffs contend that their rendition for taxes for the year 1961 were arbitrarily raised 140% “across the board”; deliberately, arbitrarily and without notice to them that their taxes had been raised. The suit was filed by Alf D. Mil-ligan and 89 other citizens and taxpayers in the school district. The Court, without hearing any evidence, sustained two separate Pleas in Abatement, 6 Special Exceptions and a Plea of Misjoinder and gave the plaintiffs an opportunity to amend their pleadings, which plaintiffs declined to do, and the Court dismissed the cause from the docket and taxed all costs against plaintiffs. Plaintiffs duly excepted and gave notice of appeal and perfected their appeal to this Court.

Plaintiffs went to trial on their First Amended Original Petition. It alleges substantially that on the 1st day of January 1960, they rendered their respective taxes to the collector of taxes for the district, giving the nature and description of their taxable properties, and referred to the rendition of same; that the values placed on their properties by such rendition were reasonable, just and equitable, and that their properties were rendered for taxes at a fair valuation and was equal to value of property of like character of other citizens of said School District; that thereafter the Board of Equalization of such School District, with the approval of the Board of Trustees of the School District, fraudulently and arbitrarily raised their renditions by an arbitrary figure of 35% over and above the values at which said respective properties were rendered, and without any kind of notice to the plaintiffs, and without opportunity of the plaintiffs to be heard, and that said raise was made without hearing evidence on market value or true value, and plaintiffs had no notice of said raise prior to paying said taxes; that the plan of raising the valuation of properties duly rendered for taxes was illegal and was the result of the adoption of an arbitrary and fundamentally erroneous plan or scheme of valuations; that for the year 1960, the School Board levied a rate of $1.70 on $100.00 of value far in excess of the legal and constitutional limit for that purpose. One plaintiff, H. R. Lively, alleges that for the year 1960 he paid his school taxes, as assessed, in the amount of $149.29 under protest and said protest was duly noted on each of the tax receipts, and he prays for judgment against the District for that part of the taxes paid by him in excess of the taxes which would have been due upon a legal assessment upon evaluation as rendered by him, and interest at 6% per annum. Each of the other plaintiffs paid their taxes to the District for the year 1960 without protest, and they assert no right of recovery for the 1960 taxes paid. All the plaintiffs allege that on the 1st day of January 1961, they duly rendered their properties at a fair valuation, as heretofore stated, for the same amount they rendered them for the year 1960, and thereafter the Board of Equalization arbitrarily instructed the School Board “to raise the renditions of all property in the Richland School District 85% above last year’s (1960) rendition for school purposes”, which amounted to approximately 140% above the valuation rendered by the plaintiffs herein; that thereafter, these plaintiffs were advised that “the Richland School Board of Equalization has so ordered”. Plaintiffs allege that the foregoing action of the Trustees and the Board of Equalization was illegal, fraudulent, arbitrary, confiscatory and contrary to the laws of this state and the constitution thereof, because no notice was served upon the plaintiffs, nor were they given an apportunity to be heard individually by said Board of Equalization prior to the action above stated; that their properties were not valued by the Board of Equalization at its true value in money. Said Board wholly failed to hear evidence touching the true value or market value of their properties. Plaintiffs assert that the School District now seeks to collect taxes in the sum of $1.70 on the one hundred dollar valuations upon such excessive valuations and assessment to these plaintiffs, which will result in damage to these plaintiffs in large and material sums, and that each of these plaintiffs will suffer such damages unless restrained, because the School District, through its collector, will attempt to seize and sell plaintiffs’ personal property for the payment of said unlawful assessment, and that they have no adequate remedy at law. Plaintiffs further allege that the School Board failed to publish or advertise notices of their meeting as á Board of Equalization contrary to the provisions of Art. 7206 of'Vernon’s Ann.Tex. Civ.St., and further allege that defendants wholly failed to notify each plaintiff that their renditions had been referred to the Board of Equalization of said Independent School District, contrary to Article 7185, V.A.T.S. Plaintiffs further allege that there is situated within the boundaries of the School District, one or more banking institutions, particularly the First National Bank of Richland, and that said bank carries substantial deposits therein for its respective customers and has in its vaults stocks and bonds, all of which deposits, stocks or bonds, the exact amount of which these plaintiffs cannot allege, but which is well known to said bank, are subject to taxation within said Defendant School District. Plaintiffs further allege that the defendants purposely, deliberately arbitrarily and systematically failed to tax or require rendition for taxation said bank deposits, stocks and bonds, and that same were omitted from the tax rolls of the School District, and that the result of said omission has permitted the aforesaid species of property to escape taxation' altogether for the benefit of the School District, and as a result the taxes required by the School District of these Plaintiffs and others similarly situated, have been largely increased to their material damage, and by virtue of these omissions, these plaintiffs’ taxes are within themselves excessive. In their prayer they asked for temporary injunction, and that it be made permanent, and that the 85% blanket raise for the year 1960 be declared illegal and void, and that the amount of taxes due the School District for the year 1961, based upon plaintiffs’ rendition of value and a legally assessed tax rate be declared, and that defendants be1 ordered to issue a tax receipt for the year 1961 to each plaintiff respectively for the payment of said amount; they further prayed that a revision of the assessed values of their property be required so that they will be required to pay only the amount of tax that is justly due and owing, and they prayed for general relief. Plaintiff Lively prayed additionally for judgment for the full sum of $149.29 with interest at 6% from October 18th, 1960, until paid.

Appellants assail the judgment of the Trial Court on eight points. One is to the effect that this cause should be reversed because of the error of the Trial Court in sustaining Defendants’ Plea of Mis-joinder of Parties Plaintiff and Motion to Sever. We sustain this point under the doctrine announced by our Supreme Court in Texas Employment Comm. v. International Union of Electrical, Radio and Machine Workers, Local Union No. 782, AFL-CIO, Tex., 352 S.W.2d 252. We think that the Opinion of the Supreme Court is so clear and comprehensive that this point need not be labored.

We think the Court’s action in sustaining the Pleas in Abatement was premature because the sustaining of the Pleas in Abatement amounted in effect to a general demurrer, and under the record here made we must consider that each of the allegations made by the plaintiffs is true, and the Court should have heard the testimony of plaintiffs before acting upon Pleas in Abatement. In State v. Richardson, Comm, of Appeals, opinion adopted, 126 Tex. 11, 84 S.W.2d 1076, we find this statement:

“It is well settled that if a rendition of property be made by the owner, and if the board of equalization by adopting some arbitrary standard, or by failing to hear evidence, or in some other respect fails to follow the provisions of the statute (see articles 7211 and 7212 of the Revised Statutes of 1925), fixes a value that is illegal and is after-wards set aside, the taxpayer’s original rendition prevails as a basis upon which taxes are to be paid.” (citing many cases).

Much has been written on tax matters very similar to the factual situation alleged by the plaintiffs, and we think the Opinion of our Supreme Court in State v. Whitten-burg, 153 Tex. 205, 265 S.W.2d 569, and Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, and the Opinion by the Court of Civil Appeals in Wells Indep. School Dist. v. St. Louis Southwestern Ry. Co., 324 S.W.2d 442, n. r. e., and cases cited therein furnish ample guides to the District Court for the trial of this cause, and that after the Court hears plaintiffs’ evidence, the cause can be decided on the authority of the cases here cited. Accordingly, we are of the view that the plaintiffs were entitled to tender their testimony, and they should have been fully heard by the Trial Court before acting on their Pleas in Abatement. We are of the further view that the Court erred in sustaining Defendants’ Special Exceptions and the Plea of Misjoinder. This view requires that the action of the Court in dismissing the case be reversed and the Court is directed to reinstate the cause, and to set the cause for trial at a convenient time for the Court in order that these plaintiffs may be heard. All costs of appeal, plus the cost of reinstatement, are taxed against the appellees; all other costs will abide the trial on the merits.

Accordingly, the Court’s order of dismissal is reversed, and it is directed to reinstate the cause as hereinabove stated.


author: STEPHENSON, Justice.

text:
    Albert MOORE, Appellant, v. Gertrude HORN et al., Appellees.
    No. 6132.
    Court of Civil Appeals of Texas. Beaumont.
    June 21, 1962.
    Rehearing Denied Sept. 12, 1962.

      Marcus & Weller, Beaumont, for appellant.
    Ernest Sample, Beaumont, for appellees.
   STEPHENSON, Justice.

Our opinion of September 7, 1961, is withdrawn and the following substituted in its stead; to which present or amended motions for rehearing may be addressed.

Gertrude Horn, et al., as plaintiffs sued Albert Moore, as defendant in trespass to try title to recover 10 acres of land in the H. P. Savery League in Jefferson County, Texas. The defendant filed a disclaimer to the tract sued for except the northern 5 acres, which he claimed title to under the ten-year statute of limitation. The issues as to title through adverse possession were submitted to the jury and found adversely to the defendant. The trial court entered judgment for plaintiffs. The parties will be referred to herein as they were in the trial court.

The defendant contends there was “no evidence” to sustain the negative findings of the jury in reference to his limitation claim. The question as to “no evidence” is a question of law and is to be tested on appeal by considering only the evidence favorable to the verdict and disregarding all other evidence.

The two special issues submitted to the jury inquired first about any period of 10 consecutive years prior to February 9, 1952 and second about any period of 10 consecutive years prior to April 1, 1955. The original petition was filed on the first date and an amended petition on the second date. The jury answered both in the negative.

In reading the record this court has found the following evidence which is favorable to the finding of the jury: (1) There was testimony to the effect that defendant did not have possession of the five acres of land in controversy because the land was not enclosed by a fence. Witnesses testified that there were gaps in the fences in places; (2) there was testimony indicating the defendant did not have continuous possession of the land. Witnesses testified that the plaintiffs’ father, Alfred J. Allridge, ran the defendant off of the land. That the defendant was' absent from the land in 1928 for 10 months. That the defendant was out of the state from October 28, 1940 until February 9, 1942. That the defendant’s house was not located on the 5-acre tract of land in controversy; (3) that the land in controversy was used and occupied by the plaintiffs’ father during his lifetime. The evidence showed this land was acquired by plaintiffs’ father by deed dated April 19, 1920, and that he died October 31, 1947. That plaintiffs’ father, after acquiring the land during his lifetime, used the land to pasture his stock; cows, a mule and a horse. That he cleared a portion of the land and cut timber for charcoal, and also for stakes which he sold. That plaintiffs’ father had the land fenced; (4) there is also evidence that defendant’s possession was not exclusive, and that others had cattle on this property; (5) one witness testified the adverse possession of defendant began after the death of Alfred J. Allridge. The findings of the jury in answer to the two special issues were supported by this evidence.

Defendant also complains of the failure of the trial court to disregard the answers of the jury and render judgment for defendant because such findings were so against the great weight and preponderance of the evidence as to be clearly wrong. This court has considered all of the evidence in the record, both favorable and unfavorable to the findings of the jury, and hold this point is without merit.

It is the contention of the defendant that there is no proof of record title into the plaintiffs because the counsel for plaintiffs did not state specifically that “an offer in evidence” was being made at the time some of the instruments were being identified. The statement of facts shows that the attorney for plaintiffs at the outset had his witness, a Deputy County Clerk, begin to read from the records in the County Clerk’s office, an instrument into the record verbatim. In the middle of the first instrument the court interrupted the witness to call a conference with the attorneys. It is not shown what was said in the conference, but the reading of the first instrument was discontinued and from that point on the witness was merely asked to give the date of the instrument, the volume and page of recording, the date of recording and the names of the Grantors and Grantees. Even though the counsel for plaintiffs did not specifically say he was offering the instrument in evidence, all parties together with the court acted upon his action as if it amounted to an offer. For example, counsel for defendant would make objections from time to time and the court would rule upon questions of admissibility that would not arise if the instrument was not being offered in evidence. In many instances a full description of the property was not given as the instrument was offered in evidence, but in no instance was an objection made by attorney for defendant upon the ground that the land described in the instrument was not the property involved in this suit. These instruments were not copied into the statement of facts by the court reporter. We must assume, however, that the trial court had all of these instruments in their entirety before it for examination at the time judgment was rendered for the plaintiffs. We can only presume the trial court ruled properly on the basis of the showing recited in the judgment to have been made before it and not brought forward for us to examine. Katz v. Maddox, Tex.Civ.App., 2S6 S.W.2d 249, Ref. N.R.E.

It is next contended on behalf of defendant that the plaintiffs cannot recover title to the property involved in this case because of two gaps in their chain of title. It was stipulated that this land was patented by the Government of Mexico to Harvey B. Savery. The title to the land passed from Harvey B. Savery to John Westcott by Bond for Title. The next instrument in the chain of title was a Power of Attorney from R. E. Wortham and Phoebe M. Wortham to M. A. Westcott. Then there is a deed from R. E. Wortham and wife through their attorney, M. A. Westcott, to J. H. Rachford and I. R. Bordages. There is a regular chain of title from J. H. Rachford and I. R. Bordages into plaintiffs. The uncertainty arises as to whether there is a break in this chain of title between John Westcott and Phoebe Westcott Wortham. Plaintiffs insist this link is furnished by a judgment aided by the pleadings in Cause No. 1056, in the District Court of Jefferson County, Texas, styled M. A. Westcott versus A. H. Baker and wife, Hattie P. Baker, in which case Phoebe Westcott Wortham recovered from A. H. Baker and wife, Hattie P. Baker, the title to the property involved in this present suit. The First Amended petition filed September 9, 1887, therein contained the following recitation:

“ * * * That by the last will of said John Westcott, made prior to his death, he bequeathed and devised forever in fee simple title to his son, John H. Westcott, the entire tract of land hereinbefore described, and that the said John H. Westcott died in 1868, leaving the plaintiff, Phoebe M. West-cott, his only child and heir at law, * * * ft

The judgment makes no reference to the matter of heirship, but plaintiffs contend the judgment and petition together furnish the necessary proof in the chain of title. The well established .rule is that if a judgment is ambiguous, then extrinsic evidence may be introduced to explain the ambiguity. Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564, 111 A.L.R. 1152. But there is nothing in the judgment revealing it to be ambiguous.

Pleadings in another suit though in another court and between different parties are admissible when they contain material admissions against interest. Wise v. Hayes, Tex.Civ.App., 103 S.W.2d 477; Campbell v. McLaughlin, Tex.Com.App., 280 S.W. 189. In this case the recitation in the petition as to the will of John West-cott, and as to the heirship of John H. Westcott were self-serving and hearsay, and were not admissible in evidence as to this defendant who was not a party to such original suit and in no way connected with a party to such original suit. House v. Stephens, Tex.Civ.App., 198 S.W. 384; Freeman v. Hawkins, 77 Tex. 498, 501, 14 S.W. 364.

However, the amended petition had heen filed 69 years, it came from a proper custodian, the office of the district clerk, and was free from suspicion in appearance. It qualified as an ancient document, and therefore is an exception to the hearsay rule. The recitals that John Westcott bequeathed this land to his son, John H. West-cott, and that Phoebe M. Westcott was the only child and heir of John H. Westcott, were competent evidence of each of these matters, and supplied the link in the chain of title. Sandmeyer v. Dolijsi, Tex.Civ.App., 203 S.W. 113; Schultz v. Shatto, 150 Tex. 130, 237 S.W.2d 609. There is nothing in this record to indicate that any claim adverse to the facts stated in these recitations made in the amended petition has ever been urged.

Defendant complains of the trial court’s action in refusing to strike from the evidence a petition and a citation in a case previously filed by plaintiffs’ father, Alfred J. Allridge, against this defendant and later dismissed for a lack of prosecution. At the time the petition was first offered and admitted in evidence the defendant made no objection. The plaintiffs then offered the citation and return for impeachment purposes. The defendant then objected to this unless the disposition of the case was shown. Before the case was concluded the trial court admitted in evidence the docket sheet showing the case was dismissed. In the light of the manner in which this entire matter was presented to the trial court; and considering the time and the nature of the objections made, we do not believe the admission of this evidence influenced the jury in its finding, and the action of the trial court, if error, did not result in any harm to the defendant. Rule 434, Texas Rules of Civil Procedure.

Defendant also complains by Bill of Exception, to a portion of the argument to the jury by counsel for plaintiffs in reference to the filing of such suit. The argument is not contained, either in the Statement of Facts, or in the Bill of Exception. The objection in the bill to opposing counsel’s argument “in connection with the court’s charge”, was too general to point out to this court with sufficient clarity, the error complained of. We see no merit to this point.

The judgment is affirmed.


author: McNEILL, Justice.

text:
    C. M. LANGFORD, Jr., et al., Appellants, v. B. F. DOUGLAS et al., Appellees.
    No. 6554.
    Court of Civil Appeals of Texas. Beaumont.
    June 28, 1962.
    Rehearing Denied Sept. 5, 1962.

      Lawrence & Lawrence, Tyler, Bath, Turner & Lloyd, Henderson, Johnston & Johnston, Palestine, for appellants.
    Norman, Rounsaville & Hassell, Jacksonville, Cecil C. Cammack, Bartesville, Okl., for appellees.
   McNEILL, Justice.

Appellants filed suit on May 3, 1955 in the District Court of Anderson County against appellees. This suit was in trespass to try title and sought recovery of a mineral interest in a tract of land as well as cancellation of a deed and oil and gas lease, and removal of a cloud on appellants’ title. Appellees answered by plea of not guilty, general denial and pleaded several Statutes of Limitation affecting land titles. The parties will be referred to hereinafter respectively as plaintiffs and defendants.

The cause was set for trial on September 26, 1955, February 6, 1956, and April 14, 1958, but each time was continued on agreement of the parties.

Although not set for trial, the presiding judge dismissed the cause for want of prosecution on October 19, 1960. No notice was given of this to any of the parties. On November 17, 1960 plaintiffs filed under oath what they termed their “Motion to Reinstate” the case. On November 25, 1960, at the same term of court in which the case was dismissed, the presiding judge set aside the order of dismissal and reinstated the case. May 25, 1961, defendants, filed motion to set aside the order reinstating the case. This motion urged two. grounds: First, since the cause was originally dismissed on October 19, 1960, and plaintiff’s motion to reinstate was not filed' until November 17, 1960, and was not acted upon within thirty days from the date of the original order of dismissal, the order dismissing the cause became final and the court did not have jurisdiction to set it aside as was attempted to be done by order of November 25, 1960. Second, because defendants had no notice of plaintiffs’ motion to reinstate the cause filed on November 17, 1960, and had no notice that the court was going to enter its order on November 25, 1960 granting plaintiffs’ motion. Defendants’ motion filed May 25, 1961, was heard by the presiding judge on August 4, 1961 and the order sustaining defendants’ motion was rendered on September 18, 1961. The pertinent part of that order follows:

“On the 4th day of August, 1961, in the above entitled and numbered cause came on to be considered the motion of the defendants, W. S. DOUGLAS and ELSIE DOUGLAS, that the court set aside order of this District Court, Judge V. M. Johnston presiding, entered November 25, 1960, which order granted plaintiffs’ motion to set aside the prior order of dismissal entered October 19, 1960; and all parties having appeared herein by counsel and the court having considered the pleadings made on this motion and heard evidence and argument of counsel in support of and against such motion, the court finds and is of the opinion that said order of the District Court herein, dated November 25, 1960, setting aside its order of dismissal, should be, and tile same is, hereby set aside; and it is hereby decreed that said order of dismissal entered by the court on October 19, 1960, dismissing- this case for want of prosecution, remain in full force and effect.”

Plaintiffs excepted to this action of the court and gave notice of appeal to the Court of Civil Appeals at Houston.

They first say that the trial court had jurisdiction of the cause when it reinstated the case on November 25, 1960, 37 days after date of order dismissing the cause. The law on this point is against plaintiffs. First National Bank of Houston v. Fox, 121 Tex. 7, 39 S.W.2d 1085; Drawe v. McGuffin, Tex.Civ.App., 355 S.W.2d 738.

Plaintiffs also assert, if the trial court had no jurisdiction to reinstate the cause when it did, that their motion to reinstate filed October 19, 1960 is sufficient as a bill of review. We have examined this instrument and conclude that it does have some of the aspects of a bill of review, but we find it unnecessary to pass upon its sufficiency. When the order quoted from above dated September 18, 1961, is examined, it is apparent therefrom that the trial court at its hearing on August 4, 1961, passed upon only two questions, those set out in defendants’ motion filed May 25, 1961. Having considered the pleadings in that motion and the evidence thereon, he concluded that the order of reinstatement was void either upon the first or second, or perhaps both grounds. The first ground was good. And if plaintiffs’ motion is viewed as a bill of review, as would have been required on November 25, 1960, the date the trial court reinstated the suit, the court erred in so reinstating, since notice of plaintiffs’ motion was not given to defendants as should have been done. Owen v. City of Eastland, Tex.Civ.App., 37 S.W.2d 1053; McDonald, Texas Civil Practice, Vol. 4, sec. 18.24, pp. 1484— 87. The trial court, therefore, properly sustained defendants’ motion and reinstated the order dismissing the suit for want of prosecution.

But, “The policy of the law is, that appellant should have his day in court for the purpose of establishing the alleged wrong perpetrated on him * * ⅜.” Smith v. Rawlings, Tex.Civ.App., 25 S.W.2d 622 (623) (W.R.) In view of the narrow language of the trial court’s order above quoted, we accordingly hold that plaintiffs’ motion to reinstate, considered as a bill of review, is still pending. No doubt plaintiffs will desire to amend it. Its presence in the original suit is an irregularity. Osborn v. Younger (Com.App.), 235 S.W. 558; McDonald, Texas Civil Practice, supra. The trial court could transfer it to an independent place on his docket for trial or other disposition. Wilson v. Ammann & Jordan, Tex.Civ.App., 163 S.W.2d 660.

Since the motion, as bill of review, properly does not belong in the original cause, the trial court’s order was a final, appealable judgment. It is affirmed.


author: CHADICK, Chief Justice.

text:
    LEGAL SECURITY LIFE INSURANCE COMPANY, Appellant, v. Dallas HARRIS, Appellee.
    No. 7436.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 21, 1962.
    Rehearing Denied Sept. 18, 1962.

      Douglas E. Bergman, John W. Hicks, Jr., Wilbur T. Knape, Dallas, for appellant.
    LeRoy LaSalle, Crawford Parker, Jr., Carthage, for appellee.
   CHADICK, Chief Justice.

This is an action to recover, under the terms of an insurance contract, certain hospitalization and surgical expense incurred by the insured. A judgment for $1812.65, which included an attorney fee and a statutory penalty, with interest from judgment date at 6% per annum, was awarded. The judgment of the trial court is affirmed.

The basic contention made by the appellant, Legal Security Life Insurance Company, is that its Policy No. H-8802 issued to Dallas Harris, the appellee, was void ab initio. The company founds its defense upon a policy provision that the insurance contract would “become effective only if the insured was alive and in good health” on the 8th day of September, 1958, the effective date of the policy, and asserts the evidence shows as a matter of law that the insured, Dallas Harris, was not in good health on that date. The trial jury returned a verdict that Dallas Harris was in good health and free from any physical or mental defect or abnormality September 8, 1958.

There is evidence to support the jury verdict. In May, 1957, Mr. Harris’ toe was injured by a cow stepping on it. The injury caused swelling and a temporary obstruction of the blood supply, a vascular disorder local in nature, and is referred to in the testimony as “black toe”. The toe was treated and the condition cleared up. At the time the policy was written in September of 1958, Mr. Harris was of the opinion and so testified that he had fully recovered from his black toe ailment and was in good health. His testimony as to good health is corroborated to some extent by his wife. In February, 1959, he consulted his local medical doctor about gas on his stomach and pain in his feet. The same year, 1959, he planted and harvested a truck crop. The labor and effort of such crop is inconsistent with a severe cardiovascular disorder. In December of that year, he again consulted his local physician because of cramping and pain in his feet and legs and was referred to a specialist at Houston. In Houston he was hospitalized toward the last of January, 1960. The Houston specialist diagnosed a cardiovascular disorder. A sympathectomy and a shunt (aorta bilateral femural popliteal dacron bypass) operation were performed as treatment of the disorder.

Mr. Harris’ Local physician was of the opinion that Mr. Harris was afflicted with Buergers disease in December of 1959; this diagnosis was based on symptoms revealed by Mr. Harris’ complaint. The physician made no tests to confirm his diagnosis; instead referred him to the Houston specialist, as mentioned. Buergers disease is not the disorder diagnosed by the Houston specialist and treated by the surgery that followed the hospitalization mentioned. Though the local physician’s testimony may be construed as relating the “black toe” disorder of 1957, the complaints made by Mr. Harris in February of 1959, and the complaints made and symptoms observed in December the same year with a cardiovascular disorder originating before September 8th, 1958, the physician did not give an opinion as to when the disorder began, saying it was impossible to accurately fix a time, nor would he say that it had not terminated following the treatment of the “black toe” episode.

The testimony as a whole raised an issue of fact regarding the time of inception of the cardiovascular disorder admittedly existing at some time after the effective date of the policy. The court properly submitted this issue to the jury for determination and there is evidence supporting the verdict. Vann v. National Life & Accident Insurance Co., Tex.Com.App., 24 S.W.2d 347; Sovereign Camp, W. O. W. v. Derrick, 64 S.W.2d 982, w. r.; Preferred Life Ins. Co. v. Dark, Tex.Civ.App., 307 S.W.2d 814, n. r. e.

The appellant’s several points of error have been considered and none found to present reversible error. Each is overruled. The judgment of the trial court is affirmed.


text:
    EAST TEXAS PULP & PAPER COMPANY et al., Appellants, v. W. L. HOOKS et al., Appellees.
    No. 6581.
    Court of Civil Appeals of Texas. Beaumont.
    July 19, 1962.
    Rehearing Denied Sept. 5, 1962.

      B. F. Whitworth, Jasper, for appellants.
    E. A. Knipp, Houston, for appellees.
   STEPHENSON, Justice.

This is an appeal from an order of the trial court denying a temporary injunction. The parties will be designated here as they were in the trial court. Plaintiffs were owners of property subject to taxation in the Hull-Daisetta Independent School District. Defendants were the members of the Board of Equalization and the Tax Assessor-Collector of the Hull-Daisetta Independent School District. Plaintiffs prayed that defendants be temporarily enjoined from acting as a Board of Equalization for the purpose of finally fixing and determining taxable values for the year 1962 upon any property, and in the alternative, upon plaintiffs’ property, until the Tax Assessor-Collector had brought before the Board of Equalization and made available to the plaintiffs all of the public records of his office.

The evidence showed the following: The tax office of this school district had two tax rolls, the A Roll which consisted of the oil and utility properties, and the B Roll which consisted of all other real estate. Plaintiffs owned only surface rights in the real estate located in this school district, and that this property was rendered for taxation. May 9, 1962 the Board of Equalization mailed notices of a hearing to one plaintiff for May 22, 1962, and to the other plaintiff for May 23, 1962. May 16, 1962 representatives of the plaintiffs went to the tax office and found that neither the rendition nor the proposed assessment for the A Roll were in the tax office. This hearing was before the trial court June 4, 1962, and on that date the proposed values to be put on properties on the A Roll had not been furnished to either the tax collector or the Board of Equalization. These proposals would be made by the Thomas Y. Pickett and Company of Dallas, Texas. This company had been employed to appraise the value of property to be placed on the A Roll. The defendant tax collector testified that he couldn’t say whether the proposed values for the A Roll would be available to plaintiffs at the time of their hearing before the Board of Equalization, The tax collector testified that he did not see any similarity between oil interest and' other interests.

We feel the sole question for us to determine here is whether a taxpayer is entitled to have made available to him for inspection, the proposed assessable values to-be placed on all other properties, at a reasonable time prior to the hearing before the board of equalization to determine the value of such taxpayer’s property. We hold that a taxpayer is entitled to this right. A review of some of the cases will disclose the reason for this conclusion.

Considering this question we must bear m mind certain principles of tax law stated by our Supreme Court in State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, as follows:

“It is now well settled that the assessment of property for tax purposes is a quasi-judicial function of boards of equalization and that no attack on valuations fixed by such boards can or will be sustained in the absence of proof of fraud, want of jurisdiction, illegality, or the adoption of an arbitrary and fundamentally erroneous plan or scheme of valuation. (Citing authorities). Moreover, when their official action is attacked it will be presumed that such boards discharged their duties as public agencies according to law and acted in good faith. (Citing authorities).
“While it has been held that a grossly excessive valuation may, in law, be sufficient to establish such fraud or illegality as to render a valuation void', (citing authorities), it is held with equal emphasis that mere errors in judgment or the fact that a trial judge or jury differs with the valuation fixed will not suffice as a basis for avoiding the board’s action. (Citing authorities.)'
“If a valuation fixed by a board of equalization is attacked on the- ground of unlawful or arbitrary discrimination it is not sufficient to show, comparatively, that in other isolated instances, property of equal or greater value than that in suit, was valued at less, (citing authorities) * * *, except where the omission was the result of a deliberate and arbitrary plan or scheme to permit certain classes of property to escape their fair share of the tax burden.
“When the attack is made because the board followed an arbitrary plan or scheme of fixing values, the taxpayer, to prevail, must show not only that the plan was an arbitrary and illegal one but also that the use of the plan worked to his substantial injury.”

In the case of Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, the Supreme Court, speaking through Chief Justice Calvert said:

“In State v. Whittenburg, [153] Tex. [205], 265 S.W.2d 569 and City of Arlington v. Cannon, [153] Tex. [566], 271 S.W.2d 414, we recognized that a taxpayer was entitled to relief when by a deliberate and arbitrary preconceived plan of taxing authorities large amounts of property, owned by others, was omitted from the tax rolls. Once such a plan of taxation is put into effect, the taxpayer must assume the onerous burden of proving substantial injury, that is, that his taxes, by virtue of the omission, are excessive or substantially higher than they would have been if the omitted property had been on the rolls. * * * It is only thus that he may secure his constitutional right to be taxed on an equal and uniform basis with others.”

Again, quoting from the City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, it is said:

“In the recent case of State v. Whittenburg, [153] Tex.Sup. [205], 265 S.W.2d 569, 573, we recognized the right to relief from such an arbitrary plan of taxation. However, if the taxpayer fails to avail himself of the remedies of mandamus and injunction to prevent a taxing authority from putting such a plan into effect, as those remedies were used in such cases as City of Houston v. Baker, Tex.Civ.App., 178 S.W. 820, writ refused, and City of Wichita Falls v. Cooper, Tex.Civ.App., 170 S.W.2d 777, writ refused, his right to relief is limited. ‘The government does not lose its right to taxes justly owing on one parcel of property, by reason of the failure of its officers, either negligently or designedly, to assess other property that is likewise taxable.’ City of Wichita Falls v. J. J. & M. Taxman Refining Co., Tex.Civ.App., 74 S.W.2d 524, 530, writ refused; Lubbock Hotel Co. v. Lubbock Ind. School Dist., Tex.Civ.App., 85 S.W.2d 776, no writ history; Howth v. City of Beaumont, Tex.Civ.App., 118 S.W.2d 350, no writ history; Sam Bassett Lbr. Co. v. City of Houston, 145 Tex. 492, 198 S.W.2d 879. Once such a plan is put into effect the litigant may defeat the recovery of taxes only to the extent that they are excessive and he must assume the burden of proving excessiveness. Article 7329, subd. 3, Vernon’s Annotated Civil Statutes, 1925; Sam Bassett Lbr. Co. v. City of Houston, Tex.Civ.App., 194 S.W.2d 114, 117-118.”

In the case of Reynolds v. Crudgington, Tex.Civ.App., 266 S.W.2d 430, it is stated:

“This is a fact case. There is little, if any, controversy about the law governing such matters. It is conceded that the courts uniformly hold that taxing authorities cannot lawfully discriminate in favor of one group of property owners as against another group and that such action is void if and when attempted.”

From this opinion it is obvious that a taxpayer may contend that the taxes on his property are not equal and uniform if other property on the tax roll, even though of a different classification, has not been properly assessed. It is also obvious that the taxpayer could not be in a position to make effective such a complaint if the proposed assessed values were not available to him.

The defendants cite many authorities for the proposition that the complaint about irregularities and overvaluation should be made before the Board of Equalization at the time of hearing. We agree with their proposition, but we must recognize that before such a complaint could be made the information must be available.

The judgment of the trial court is reversed and judgment is rendered that defendants are enjoined from acting as a Board of Equalization for the purpose of finally determining the taxable values of plaintiffs’ property until the defendants have made available to the plaintiffs the proposed assessed valuations of all of the properties on both the A Roll and the B Roll for the year 1962 in the Hull-Daiset-ta School District.


author: DENTON, Chief Justice.

text:
    DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Virgil Cline AUSTIN, Appellee.
    No. 7070.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 4, 1962.
    Will Wilson, Atty. Gen., Tom I. Mc-Farling, Asst. Atty. Gen., Austin, for appellant.
    Treadaway & Blumrosen, Lubbock, for appellee.
   DENTON, Chief Justice.

On July 17, 1961, this court rendered an opinion holding that the case was moot and the appeal was dismissed, 348 S.W.2d 854. The Supreme Court granted a writ and on February 28, 1962, reversed this court’s judgment holding the case was not moot and remanded the cause to this court for a decision upon the merits, 354 S.W.2d 376. In keeping with that Supreme Court decision, the cause will be considered upon its merits.

The record indicates that appellee, Virgil Cline Austin, was originally issued a Texas chauffeur’s license No. 0194253 on May 29, 1942. At all times material to this case, he was the holder of Texas operator’s license No. 0194253, which was to expire February 24, 1961. On December 12, 1959, the judge of the Corporation Court of Lubbock awarded an affirmative finding under Article 6687b, Section 22, Vernon’s Ann. Civ.St. that Austin was a habitual violater of the traffic law. On this same date the Department suspended his license for a period of six months. No appeal was taken from that order of suspension. On May 21, 1960, Austin was convicted of “speeding” in Lamb County, Texas. On July 28, 1960, the judge of the same corporation court awarded another affirmative finding that Austin was a habitual violater. On August 5, 1960, the Department issued an order suspending Austin’s operator’s license for a period of six months beginning August 8, 1960. It is from this latter suspension order that Austin perfected his appeal to the County Court at Law under authority of Section 31 of Article 6687b. The trial court, without the intervention of a jury, held there was insufficient evidence to support the Department’s order suspending Austin’s driver’s license. The Department of Public Safety perfected this appeal from that judgment.

It is the contention of the Department that the subsequent suspension was authorized upon the showing that Austin had been convicted of a moving traffic violation during the period of the original suspension; and that the evidence was sufficient to support the Department’s subsequent suspension order.

Article 6687b, Section 22(b) provides in part:

“The authority to suspend the license of any operator, commercial operator, or chauffeur as authorized in this Section is granted the Department upon determining after proper hearing as hereinbefore set out that the licensee:
“1. Has committed an offense for which automatic suspension of license is made upon conviction;”

Section 24 of the same article provides for the automatic suspension of a driver’s license upon the licensee being convicted of certain named offenses. Section 24(c) provides:

“The suspension of any license shall be automatically extended upon licensee being convicted of operating a motor vehicle while the license of such person is suspended; such extended period of suspension to be for a like period as the original suspension, and is in addition to any other penalty assessed, as provided in this Act.”

Section 24 deals with the automatic suspension of driver’s licenses upon conviction of certain offenses, while Section 22 permits the Department to file a petition seeking an affirmative finding that a licensee has committed certain offenses not named for automatic suspension. It is to be noted that that portion of Section 22(b) (1) quoted, supra, does refer generally to offenses committed for which automatic suspension is provided. Thus, Sections 24 and 22(b) are correlated and under proper circumstances are to be considered together. Here the Department chose to proceed under Section 22 and sought an affirmative finding before ordering the subsequent suspension of Austin’s license. The allegation that Austin “committed” an offense of “speeding” is tantamount to the allegation that he was operating a motor vehicle while his license was suspended. By committing the offense of speeding on May 21, 1960, Austin was necessarily driving while his license was suspended. He thereby committed an offense for which his license could have been automatically suspended, Section 22(b) (1).

As stated in Texas Department of Public Safety v. Gil (Civ.App.) 292 S.W.2d 832 (NWH),

“It is not required that the alleged offending party must have been convicted of the offense charged before an affirmative finding may be made but only that he has committed such offense— a matter to be proved by evidence at the hearing.”

In remanding this case to this court for a decision upon the merits, the Supreme Court said, “On May 21st Austin was convicted in the Justice of the Peace Court for speeding. Therefore, he committed not only the offense of 'speeding’, but also the offense of ‘driving while license suspended’, as well.”

From the record it is uncontradicted that Austin’s operator’s license had been suspended on December 12, 1959 for a period of six months; that no appeal had been taken from such suspension order; that he was convicted of speeding during the period of that suspension; and that after an affirmative finding on July 28, 1960, the Department again ordered a suspension of Austin’s license. We are convinced this is ample evidence to support the Department’s suspension order dated August 5, 1960.

The judgment of the trial court is accordingly reversed and rendered.