author: WALKER, Justice. GRIFFIN, Justice.

text:
    Gerald S. GORDON et al., Relators, v. Honorable P. Frank LAKE, Secretary of State, Respondent.
    No. A-8583.
    Supreme Court of Texas.
    April 4, 1962.
    Rehearing Denied April 25, 1962.

      Gerald S. Gordon, Myron M. Sheinfeld, Houston, for relators.
    Will Wilson, Atty. Gen., Austin, Fred Werkenthin, Bob Shannon, Asst. Attys. Gen., for respondent.
   WALKER, Justice.

This is an original proceeding in which Gerald S. Gordon et al, relators, seek a writ of mandamus requiring Honorable P. Frank Lake, Secretary of State, respondent, to file a corporate charter setting forth the purposes formerly authorized by Article 1303b, Vernon’s Ann.Tex.Civ.Stat. The statute was expressly repealed by the Legislature effective ninety days after May 29, 1961. Acts 1961, 57th Leg., p. 458, ch. 229. Relators presented their original charter to respondent on August 3, 1961. An amended charter was submitted five days later, and respondent refused to file the same on the ground that Article 1303b had previously been repealed by the Texas Business Corporation Act, which was adopted in 1955. Motion for leave to institute the present proceeding was filed on August 9, 1961.

For some time after the adoption of the Business Corporation Act, the Secretary of State accepted and filed charters containing purpose clauses stated in the terms of Article 1303b. In Opinion No. WW-77 dated April 1, 1957, the Attorney General took the position that the earlier statute was repealed by such Act. As indicated above, it was solely for this reason that respondent declined to file the charter presented to him by relators. He concedes that if they were entitled to organize a corporation for the purposes authorized by Article 1303b, the instrument tendered to him complied in all respects with the laws then in effect.

A statute may be repealed expressly or by implication. Where a later enactment is intended to embrace all the law upon the subject with which it deals, it repeals all former laws relating to the same subject. See Motor Inv. Co. v. City of Hamlin, 142 Tex. 486, 179 S.W.2d 278. Repeals by implication are not favored, however, and laws relating to the same subject should be considered as though incorporated in the same act. If they can be harmonized and effect given to each when so considered, there is no repeal by implication. See Conley v. Daughters of the Republic, 106 Tex. 80, 156 S.W. 197, 157 S.W. 937.

Several types of corporations are expressly excepted from the provisions of the Business Corporation Act. Article 2.01 provides that “[n]o corporation may adopt this Act or be organized under this Act or obtain authority to transact business in this State under this Act: * * * (4) If any one or more of its purposes is to operate any of the following: * * * (b) trust companies * * Section A of Article 9.14 declares as a general rule that the Act does not apply to corporations organized for any of such purposes. It is provided, however, that:

“ * * * if any of said excepted domestic corporations were heretofore or are hereafter organized under special statutes which contain no provisions in regard to some of the matters provided for in this Act, or any such excepted foreign corporations were heretofore or are hereafter granted authority to transact business within this State under any special statute which contains no provisions in regard to some of the matters provided for in this Act in respect of foreign corporations, or if such special statutes specifically provide that the general laws for incorporation or for the granting of a certificate of authority to transact business in this State, as the case may be, shall supplement the provisions of such statutes, then the provisions of this Act shall apply to the extent that they are not inconsistent with the provisions of such special statutes.”

Subject to the exceptions and limitations of said Section A, the Act is made applicable to all domestic corporations organized after its effective date. Article 9.14, Section D. It is further provided that subject to the provisions of Articles 9.14, 9.15, Section C of Article 2.02 and Section B of Article 9.16, “and excluding any existing general Act not inconsistent with any provisions of this Act, no law of this State pertaining to private corporations, domestic or foreign, shall hereafter apply to corporations organized under this Act * * Article 9.16.

As pointed out in Carney v. Sam Houston Underwriters, Tex.Civ.App., 272 S.W. 2d 942 (wr. ref. n. r. e.), the ordinary con-i'ception of a trust company is one that is ■ authorized to take and administer trusts. Prior to its repeal, Article 1303b permitted the organization of a corporation with the power, among others, to act as trustee under any lawful express trust committed to it by contract or will, or under appointment of any court having jurisdiction of the subject matter. This is one of the stated purposes of the charter now in question, and we agree with the Attorney General that relators are attempting to organize a “trust company” within the meaning of the Business Corporation Act.

It is evident that the Legislature did not intend for the Act to embrace all of the law on the subject of corporations and their creation. The excepted corporations may not be organized under or adopt its terms, but their organization under other applicable laws is clearly contemplated thereby. None of the provisions of Chapter 2, Title 32, Texas Revised Civil Statutes 1925, as amended, was expressly repealed, and we find nothing in the Act to support the conclusion that they were repealed by implication. To the extent that they relate to the organization of excepted corporations, such provisions are in no way inconsistent with the Business Corporation Act. It is our opinion that Article 1303b was in full force and effect when relators presented their charter for filing and that respondent should have accepted and filed the same,

The Attorney General also argues that mandamus should not issue because relators had an adequate remedy by appeal under the provisions of Article 9.04. Any person whose charter is not approved by the Secretary of State is there granted the right of appeal to any district court of Travis County. We have already pointed out that relators were not entitled to organize their corporation under the Act, but it is contended that the appeal provisions of Article 9.04 were extended to them by the proviso of Article 9.14 quoted above. Such proviso makes the Act applicable, in so far as excepted corporations are concerned, only where: (1) a domestic corporation has been organized under a special statute which contains no provision with reference to some of the matters covered by the Act; (2) a foreign corporation has been granted authority to do business in this State under a special statute which does not deal with all of the matters provided for in the Act; or (3) such special statutes specifically provide that their provisions shall be supplemented by the general- laws for incorporation or for the granting of a permit to do business in Texas. Since the Legislature has declared in plain and explicit terms the circumstances under which the Act shall apply to excepted corporations and to the incorporation of the same, it cannot fairly be said that the lawmakers intended to make such provisions applicable to every effort to organize an excepted corporation. The reference to statutes which specifically provide that their terms shall be supplemented by the general laws for incorporation indicates rather clearly that the Act is not to be extended by construction to all persons who seek to organize any type of corporation. We are not here dealing with an existing domestic or foreign corporation, and relators are not attempting to incorporate under a special law which specifically provides that its provisions shall be supplemented by the general laws for incorporation. Article 9.04 does not apply to relators, and their only remedy is an original mandamus proceeding in this Court. See Article 1735, Vernon’s Ann.Tex.Civ. Stat.

Finally, respondent says that the controversy is now moot because the express repeal of Article 1303b became effective August 26, 1961. He points out that under the provisions of former Article 1313, Vernon’s Ann.Tex.Civ.Stat., the existence of a corporation dated from the filing of the charter in the office of the Secretary of State. It is his contention that the charter cannot now be filed because any right relators may have had expired by operation of law on August 26, 1961. We do not agree.

When the Legislature repealed Article 1303b and the other general statutes under which relators were acting, it provided that any right accrued or established under the prior law would not be impaired or affected by such repeal. Acts 1961, 57th Leg., p. 458, ch. 229, § 2. General incorporation statutes have been said to be standing offers to the public which are accepted when a charter in compliance therewith is received by the Secretary of State. The existence of the corporation was made to date from the filing of the charter because the acceptance of the offer by the incor-porators is ordinarily signified in that manner. See Hildebrand, Texas Corporations, Vol. 1, p. 61, § 23. Where as here a charter which satisfies all legal requirements is presented for filing, the Secretary of State is under a duty to approve it and the in-corporators are entitled to have the same filed.

It has long been settled that a party who wins a favorable jury verdict will not be deprived of his legal right to a judgment thereon by the failure or neglect of the trial court to render judgment during the term. The trial judge has authority to render judgment nunc pro tunc at a subsequent term, and a writ of mandamus will issue in a proper case requiring him to do so. Williams v. Wyrick, 151 Tex. 40, 245 S.W.2d 961; Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296. Although respondent acted in good faith and on the advice of the Attorney General, his refusal to file the charter was wrongful in legal contemplation. We think relators should not be deprived of their rights by the failure of a public official to perform a ministerial duty involving no exercise of judgment or discretion where the delay in enforcing such rights has resulted solely from the processes of the law. Relators were diligent in seeking relief before the repeal of Article 1303b became effective, and it is our opinion that the charter should be filed by respondent as of August 8, 1961. In the event he does not do so, a writ of mandamus will issue.

GRIFFIN, J., dissents.

STEAKLEY, J., not sitting.

GRIFFIN, Justice.

I respectfully dissent. The Court does not have jurisdiction to issue this writ of mandamus.

Respondent filed a motion to dismiss the application of Relators for a mandamus on the ground that when he refused to file the articles of incorporation Relators should have pursued their remedy at law by appealing to a district court of Travis County, Texas as provided by Art. 9.04 of the Act. We carried the motion to dismiss along with the cause for argument at the time of submission.

I would hold that Relators were bound to appeal from Respondent’s adverse ruling as is provided by Art. 9.04 of the Act and, therefore, deny Relators’ application for writ of mandamus.

Relators say that since they seek to incorporate a trust company under Art. 1303b, they are specifically excluded from any of the provisions of the Act. They rely on Art. 2.01, subd. B that “no corporation may adopt this Act or be organized under this Act or obtain authority to transact business in this State under this Act * * * (4) if any one or more of its purposes is to operate any of the following: * * * (b) trust companies * *

Art 9.14, subd. A of the Act provides in part: “This Act does not apply to domestic corporations organized for the purpose of operating banks, trust companies * * * [here are enumerated the excepted types of corporations] provided, however, that if any of said excepted domestic corporations were heretofore or are hereafter organized under special statutes which contain no provisions in regard to some of the matters provided for in this Act, * * * then the provisions of this Act shall apply to the extent that they are not inconsistent with the provisions of such special statutes.” (Emphasis added.)

Art. 9.04, subd. A of the Act provides that “if the Secretary of State shall fail to approve any articles of incorporation, * * he shall, within ten days after the delivery thereof to him, give written notice of his disapproval to the person * * * delivering the same, specifying in such notice the reasons therefor. From such disapproval such person * * * may appeal to any district court of Travis County by filing with the clerk of such court a petition setting forth a copy of the articles or other document sought to be filed and a copy of the written disapproval thereof by the Secretary of State; * *

Relators contend that the above provisions prohibit the creation of a trust company; that Relators seek to incorporate under the only statute available to them which is Art. 1303b, a part of the general corporation law and that the Act recognizes the right to so incorporate. Relators further say that the Act provides that it shall apply to corporations incorporated under the general corporation laws only to the extent that such Act is not inconsistent with the special statutes under which Relators seek to incorporate; that the incorporation of a trust company is inconsistent with the Act, and therefore Relators cannot avail themselves of the right of appeal given by Art. 9.04, subd. A of the Act. I do not so construe the Act.

While Art. 2.01, subd. B prohibits trust companies from being organized under the Act, or from adopting the provisions of the Act, and while Art. 9.14, subd. A recognizes that the Act does not apply to trust companies, it also contains a proviso which makes the provisions of the Act applicable to such excepted corporations which are organized under special statutes which contain no provision in regard to some of the-matters provided for in the Act, to the extent that the provisions of the Act are not inconsistent with such special statutes. The ■ words used in the proviso clause “provided however” qualify or modify the exception of trust companies. The phrase “provided, however” means the same as “but nevertheless”, or “but notwithstanding what is. above expressed”, or “but anything herein before contained to the contrary notwithstanding.” McCandless v. Carter, 18 Haw. 221 (1907).

The phrase “provided however” introducing a paragraph indicates that the paragraph qualifies or modifies the entire article in which the paragraph is contained; the word “provided” expressing a limitation or exception, and the word “however” adding confirmation to such intention. Hartung v. Witte, 59 Wis. 285, 18 N.W. 175; Millard v. McFadden, 185 Misc. 771, 57 N.Y.S.2d 594, 596.

The language used by the Legislature in Art. 9.14, subd. A of the Act expressly purports to bring all corporations under the provisions of the Act, except where such corporations are organized under special statutes with contrary or inconsistent provisions. It is the duty of the court construing a statute to give effect to every part and all the language of the statute wherever this can reasonably be done. 39 Tex.Jur. 208, § 112 and authorities cited therein. “Another fundamental rule requires that a statute be construed as a whole and that all of its parts be harmonized, if possible, so as to give effect to the entire act according to the evident intention of the Legislature, * * ⅜ ” citing 39 Tex.Jur. 209-210, § 113.

An examination of Art. 1303b, Title 32, V.A.C.S., of the general incorporation act shows there are no provisions therein governing the action of the proposed incorpora-tors in the event the Secretary of State shall refuse to file the articles of incorporation. Therefore it would be entirely consistent with Art. 1303b to hold that in the event the Secretary of State shall refuse to file the articles of incorporation, an appeal must be taken under the provisions of Art. 9.04, subd. A of the Act. Relators contend that the comments of the Bar Association Committee, as found following Art. 9.04 in the Act as set out in Vernon’s Annotated Texas Statutes, “succinctly, unequivocally and positively” state that Art. 1735, V.A.C.S., still governs their remedy against the Respondent; that Art. 1735, V.A.C.S., is still applicable to all corporations not subject (Re-lators’ emphasis) to the Act under the provisions of Art. 9.14, subd. A. (Emphasis added.) Upon careful analysis of the provisions of Art. 9.14, subd. A I am of the view that trust companies are governed by the provisions of the Act relating to appeal from the adverse decisions of Respondent.

Relators having failed to exercise their right of appeal, I would deny this mandamus.

      . Except as otherwise indicated all statutes are referred to by the article number under which they appear in V.A.T.S. Bus. Corp. Act.


source: Caselaw Access Project

author: CULVER, Justice.

license: Public Domain

text:
    George G. MacDONALD, Petitioner, v. Mary S. TRAMMELL, Respondent.
    No. A-8749.
    Supreme Court of Texas.
    April 4, 1962.

      Small, Small & Craig, Austin, for petitioner.
    Carter, Stiernberg, Skaggs & Koppel, Harlingen, L. Hamilton Lowe, Austin, for respondent.
   CULVER, Justice.

Petitioner, MacDonald, a real estate broker, brought this suit against Mrs. Mary S. Trammell, a resident of Cameron County, respondent herein, and Ras Redwine, a resident of Travis County, for damages. The suit is based upon these allegations: That William L. Trammell, now deceased, orally contracted with MacDonald to pay him a commission for the sale of certain real property; that Mrs. Trammell, his widow, entered into a conspiracy with Redwine, the purchaser, to induce her husband to breach that contract; that as a result of that conspiracy Trammell was fraudulently induced to breach the contract.

Mrs. Trammell’s plea of privilege to be sued in the county of her residence was sustained by the trial court and that order has been affirmed by the Court of Civil Appeals, (351 S.W.2d 89), on the ground that no cause of action lies against one who induces the breach of an agreement which may not be enforced under the provisions of § 28, Art. 6573a, Vernon’s Annotated Civil Statutes.

We granted the application on the basis of a conflict between this decision and that rendered by the Dallas Court of Civil Appeals in Yarber v. Iglehart, 264 S.W.2d 474 (1953), no writ history, and in Davis v. Freeman, 347 S.W.2d 650, no writ history (1961).

We are of the opinion that no cause of action can be successfully asserted against Mrs. Trammell for inducing her husband not to pay the commission nor for conspiring with another to bring about that result. Assuming, but not deciding, that the resident defendant, Redwine, could be held liable in damages for tortiously interfering with the performance of an unenforceable contract, it does not follow that there exists a joint cause of action against Redwine and Mrs. Trammell nor one for fraud on her part so as to fix venue as to Mrs. Trammell in Travis County by reason of Exceptions 4 or 7 of the general venue rule, Art. 1995, Vernon’s Annotated Civil Statutes.

In the first place Mrs. Trammell had as much of a financial interest at stake in this matter as did her husband. The property involved was a part of their community estate and the alleged debt was a community obligation. Although the husband is vested with the management and control of the community estate, it would be rather anomalous to hold that she would subject herself in damages for advising and consulting with her husband in respect to their common interests. Secondly, we are of the opinion that to so hold would be against sound public policy. The case of Lee v. Silver, 262 App.Div. 149, 28 N.Y.S.2d 333, affirmed 287 N.Y. 575, 38 N.E.2d 233, cited by respondent is rather illuminating on this problem. In that case the mother was sued in damages for having wrongfully and maliciously induced her daughter to repudiate and breach a contract of employment. In holding that it would be against public policy to make a parent liable for advising a child the court said:

“A cause of action exists against a person who maliciously procures another to breach a contract for personal services. * * * The wrongful act is malicious when done without legal or social justification. I do not believe that the rule should include advice given by a parent to an infant child to disaffirm a contract. Public policy dictates that parents should have an absolute right to advise their infant children with regard to all matters; that such a right should be exercised freely and should not subject the parent to any inquiry as to motive. Such an unrestricted right is one most calculated to promote the best interests of the family relationship.”

In Nelson v. Melvin, 236 Iowa 604, 19 N.W.2d 685, the court held that parents have the right to advise their child to breach a marital contract and that such advice or the result thereof is not actionable, aptly pointing out:

“If any other rule were to be pronounced, it would be inviting litigation of a character which would do much to break family discipline and control.”

To the same effect is Conway v. O’Brien, 269 Mass. 425, 169 N.E. 491, 73 A.L.R. 1448.

We think that this principle applies with equal if not greater force in respect to the relationship of husband and wife. As argued by Mrs. Trammell, if she could be held liable for attempting to persuade her husband not to carry out this unenforceable contract, she would be equally liable for inducing him to plead the statute of limitations where the debt was barred by that statute, or to seek refuge in the statute of frauds and for a like reason the husband would be liable in case he advised the wife to plead coverture. It follows that if she is not liable for inducement she cannot be held for conspiracy to induce.

Among the mutual marital rights and obligations is the right of one spouse to the society, comfort, affection and assistance of the other. Article 1985, Vernon’s Ann.Civ.Stat., provides that the husband shall be joined as a party in suits for separate debts and demands against the wife. Our courts have said that the theory of this rule is to the end that the husband may aid, protect, counsel and assist the wife in defending the suit. Holmes v. Jackson, Tex.Civ.App., 200 S.W.2d 276, no writ history; Rhoades v. Fredwell, Tex.Civ.App., 192 S.W.2d 295, wr. of er. ref. n. r. e. Surely then the law would not deny to the wife the corresponding obligation and privilege of offering aid and assistance to the husband in matters affecting their common interests.

Both the trial court and the Court of Civil Appeals have reached the correct result and that result may properly rest on a ground other than on a decision of the point of law asserted to be in conflict. A decision of that point will not necessarily control the disposition of this case and we therefore do not have jurisdiction. Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682.

Accordingly the order granting the application for writ of error is set aside and the application is dismissed for want of jurisdiction.


author: BELCHER, Commissioner.

text:
    Carl A. SIMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 34152.
    Court of Criminal Appeals of Texas.
    March 14, 1962.
    Brooks Holman, Austin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted on a plea of guilty to the offense of speeding; the punishment, a fine of $101.

There is no statement of facts on the merits in the record.

Appellant’s sole contention on appeal ie that the trial court erred in overruling his motion to quash attacking the validity of the' complaint. He alleged as grounds for such motion that Affiant Fox neither signed nor swore to the complaint in the presence of Clerk Williamson, and that the clerk’s signature was affixed thereto by someone outside of his presence and supervision with a rubber stamp facsimile.

The complaint is in regular form, with the signature of Fox as affiant, and the jurat by Williamson as Clerk of the Corporation Court.

At the hearing, no witness had any independent recollection of the execution of this • complaint. Affiant Fox testified that it was his signature on the complaint, and that he had never filed a complaint without swearing to it. Clerk Williamson testified that the signed complaints are sworn to before him by Fox, and then his name is affixed thereto at his direction and by his authority. He further testified that there had been, to his knowledge, no case where this procedure had not been followed.

The burden of proving the allegations in his motion to quash the complaint rests on the appellant. The evidence is insufficient to show the invalidity of the complaint, which is regular on its face.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Dayl FLOURNOY, Appellant, v. The STATE of Texas, Appellee.
    No. 34297.
    Court of Criminal Appeals of Texas.
    March 14, 1962.
    Frank M. Teveni, Joe Burkett, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the unlawful practice of medicine; the punishment, 30 days in jail and a fine of $250.00.

From the record before us, it appears that appellant filed an amended motion for new trial on June 1 and the term of court expired on June 3. The learned trial court took the position that said amended motion was overruled by operation of law upon the ending of the term and refused to grant appellant the right to appeal. In this, he was in error. Thurman v. State, 162 Tex.Cr.R. 477, 286 S.W.2d 941. By writ of habeas corpus, appellant applied to this Court, and we directed the trial court to forward to this Court a transcript and statement of facts in the case, to include the facts regarding notice of appeal. Thereafter, the transcript showing no action on appellant’s motion for new trial and no facts regarding notice of appeal, we directed the trial judge to hear and determine said motion for new trial and, if overruled, to allow appellant to give notice of appeal and set the amount of his appeal bond. Supplemental transcripts are now before us, and the appeal will be considered.

Trial was before the court without the intervention of a jury.

Ben Laney, investigator for the State Board of Medical Examiners, testified that on the day in question as he approached the Houston Building in San Antonio, he saw in each of two windows signs which read “Dr. Dayl J. Flournoy, M.D.,” that he then ascended to the second floor where he saw a door bearing a sign “Dayl J. Flournoy, M.D.,” that he entered the door and was met by appellant, who asked what he could do for the witness. Laney testified that he told appellant he had not been feeling well, could not eat or sleep properly, and that this condition had lasted three or four weeks. He stated that appellant said, “in a case like that I would rather not give you injections but will give you something else,” after which appellant took the witness’s blood pressure and later returned with two preparations, one liquid and one in tablet form, with instructions for taking appearing on the labels. The witness testified that he paid appellant the $5.00 he requested for his services, received a receipt therefor, and was told to return in three days.

Jerry Mazzola, deputy district clerk in charge of the medical records, testified that he had searched the same and failed to find any recorded certificate authorizing appellant to practice medicine in Bexar County.

Appellant did not testify or offer any evidence in his own behalf.

Finding the evidence sufficient and no reversible error appearing, the judgment of the trial court is affirmed.


author: McDonald, judge. •

text:
    Ex parte Billy Don THOMPSON.
    No. 34357.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1962.
    Harkness & Friedman, Texarkana, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge. •

On January 2, 1962, the District Court of Bowie County revoked a five-year probationary sentence which had been given appellant on September 11, 1961. Appellant excepted to the order of the trial court and gave notice of appeal to this Court and sought to enter a recognizance, presenting two citizens of Bowie County alleged by him to be well qualified as sureties and who sought to make a recognizance for him. The trial court refused to allow appellant to make such recognizance and ordered him confined to jail, pending his appeal from the revocation order entered by the court.

On January 3, 1962, Judge W. A. Morrison of this Court granted appellant’s application to file an original application for habeas corpus with this Court, and bail was set at $5,000.00. The sole question presented us for review is the propriety of the trial judge’s action in denying bail or recognizance pending the appeal from the trial court’s order revoking probation. The action of the trial court in revoking probation is also being appealed, but it is not before us at this time.

While this is a case of first impression, we think that Article 815, Vernon’s Ann. C.C.P., allowing appellants to enter into recognizance and to remain on bail, pending appeal, when the punishment assessed does not exceed fifteen years, here controls. This Court has entertained appeals in cases of this kind since the enactment of the original Adult Probation Law, first known and designated as Article 781b and now known as Article 781d, V.A.C.C.P.

The able trial judge fell into error in denying appellant bail. The writ of habeas corpus is granted. Relator will remain on bail allowed by this Court in this cause until he enters into appeal bond in the appealed case, or until such appeal is finally decided.


text:
    Jerome COOK, Appellant, v. The STATE of Texas, Appellee.
    No. 34336.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1962.
    Tibiletti & Williams, Victoria, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the misdemeanor offense defined in Art. 1350, Vernon’s Annotated Penal Code; the punishment, one year in jail and a fine of $1,000.

Trial was before the court on a plea of guilty.

No statement of facts accompanies the record.

The transcript contains five formal bills of exception, filed with the clerk of the trial court, all of which were returned with the refusal of the trial judge noted thereon within the time allowed by Art. 760d, Vernon’s Annotated Code of Criminal Procedure. Appellant did not agree with the reasons assigned by the trial judge and note such facts on the bills, and no bystanders bills were filed, hence the refused bills cannot be considered. Campos v. State, No. 34,170, 356 S.W.2d 317.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Ex parte Dayl FLOURNOY.
    No. 33791.
    Court of Criminal Appeals of Texas.
    March 14, 1962.
    Joe Burkett, Frank M. Teveni, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The relief which was granted -herein is •shown in our opinion -in Flournoy v. State, Tex.Cr.App., 356 S.W.2d 147, this day decided.

Any other question raised herein has become moot, and further relief is denied.


author: MASSEY, Chief Justice.

text:
    C. D. WYCHE, Appellant, v. OIL-TEX SUPPLY CO., Inc., Appellee.
    No. 16307.
    Court of Civil Appeals of Texas. Fort Worth.
    March 9, 1962.
    Rehearing Denied April 6, 1962.
    Yarborough, Yarborough & Johnson, and Donald V. Yarborough, Dallas, for appellant.
    Fillmore, Schaeffer & Fillmore, and Roy Schaeffer, Wichita Falls, for appellee.
   MASSEY, Chief Justice.

The matter before us purports to be an appeal taken by writ of error complaining of certain action of the District Court of Wichita County.

Two of the three points of error presented on the appeal relate to the plea of privilege of appellant in the trial court, the third point relating to propriety of part of the judgment on the merits. As an appeal from action or non-action on the part of the trial court upon the plea of privilege, writ of error to the Court of Civil Appeals for the purpose of making any complaint thereof is not available. Western Electric Co. v. Wilson, 1927, 117 Tex. 203, 299 S.W. 868.

It is furthermore made to appear by the record before us that the appellant participated both in person, and by an authorized attorney in the trial court proceedings-resulting in the judgment against him. V. A.T.S. Title 42, “Courts-Practice in District and County”, Ch. 12, “Appeal and Writ of Error”, Art. 2249a “Party participating in actual trial; writ of error review by Court of Civil Appeals”, provides that when complainant and/or his attorney so participates in the trial court proceedings writ of error shall not be available to him as an appellate remedy.

Our jurisdiction is not invoked by the attempted appeal in the instant situation, whether considered as applied to action or iton-action upon the appellant’s plea of privilege or as applied to the propriety of the judgment on the merits of the cause in the trial court. Our jurisdiction could only have been invoked by ordinary appellate procedure, the time for which has passed.

The appeal is dismissed.


author: NORTHCUTT, Justice. CHAPMAN, Justice

text:
    C. E. LEATHERMAN v. Jesse STARKEY et al.
    No. 7138.
    Court of Civil Appeals of Texas. Amarillo.
    March 26, 1962.
    Rehearing Denied April 23, 1962.
    Albert Smith, Lubbock, for appellant.
    Stovall & Stovall, Floydada, for appellees.
   NORTHCUTT, Justice.

This suit was instituted by Jesse Starkey, individually, and as next friend for his minor daughter, Mary Starkey, against C. E. Leatherman and Kenneth O’Neal for injuries sustained by Mary Starkey in a collision occurring in the city of Floydada on or about 10:00 P. M., July 2, 1960. Mary Starkey was injured when the automobile in which she was riding with Cecil Jackson ran into the rear end of a truck owned by C. E. Leatherman. The truck was parked next to the curb on Houston Street in Floy-dada. Houston Street is 51 feet and 4 inches wide. The truck was parked facing West on the right hand side of the street about 6 inches from the curb with the front of the tractor about 18 to 20 feet from the intersection. Mary was riding in the middle of the front seat with Cecil and was injured in the collision.

The case was submitted to the jury upon special issues. The jury found all issues in favor of Kenneth O’Neal and he will not be considered herein any further. Leather-man will hereafter be referred to as appellant and Jesse Starkey and Mary Starkey as appellees.

The jury found appellant’s truck was equipped with portable reflectors; that appellant failed to place such reflectors to the rear and in front of his truck; and that such failure was negligence and a proximate cause of the collision in question; that appellant did not park his truck upon the paved portion of a public street when it was practical to park off the paved portion of said public street; that he parked his truck at night on a public street without leaving any lights burning thereon and that such failure was negligence and a proximate cause of the collision. The jury further found in answer to Special Issue Number 4 to the effect that appellant had reflectors on his truck that would give warning of the presence of said truck tó a person of ordinary prudence approaching in another vehicle from the rear of said truck. Above are the issues determining the liability of appellant.

As to the actions of Cecil Jackson the jury found he failed to keep a proper lookout and that such failure was a proximate cause of the collision in question; that just prior to the collision in question Cecil was blinded by the lights of an oncoming automobile and by his action in driving his automobile while blinded by the lights of an oncoming automobile was a proximate cause of the collision in question. The jury found on the occasion in question Mary Starkey failed to keep a proper lookout and that such failure was a proximate cause of the collision in question.

After receiving the verdict of the jury, the court entered judgment holding there was no evidence to raise such issues as to Mary Starkey and no evidence to sustain the verdict of the jury in answer to Special Issues 15A and 15B where the jury held Mary Starkey failed to keep a proper lookout and such failure was a proximate cause of the collision in question, and entered judgment that Jesse Starkey, individually, recover from Leatherman $1,746.00 and that Mary Starkey recover $10,000.00 from Lea-therman. From this judgment appellant perfected this appeal.

Appellant’s first three assignments of error concern the action of the trial court in holding there was no evidence to raise such issues and no evidence to sustain the verdict of the jury that Mary Starkey failed to keep a proper lookout and such failure was a proximate cause of the collision in question, and in granting judgment for the appellee and in not granting judgment upon the verdict in favor of appellant.

It has been repeatedly held in this state that, where a statute requires the doing of an act, or prohibits the doing thereof, the violation of such statute constitutes negligence as a matter of law. Clem Lumber Co. v. Fisher, Tex.Civ.App., 84 S.W.2d 282 (Writ refused) and the many cases there cited. Cecil Jackson did not have a drivers license at the time in question, consequently, he was negligent as a matter of law in driving the car at the time here in question. Although the jury found Cecil was not an incompetent driver and unsafe to operate an automobile on the highways and streets of Floydada, we think this record clearly shows to the contrary. It was held in the case of Williams v. Sargent, Tex.Civ.App., 255 S.W.2d 229, “the law requires Jerry to have an operator’s license as proof of his competency. The plaintiffs were charged with notice, as a matter of law, of the danger of riding with Jerry Wil-Hams when he, admittedly and to their knowledge, was not qualified to drive an automobile.” The Supreme Court affirmed that case, Sargent et al. v. Williams et al., 152 Tex. 413, 258 S.W.2d 787, and held as a matter of law the plaintiffs were negligent in permitting the children to ride with Jerry Williams and were not entitled to recover any damages caused by Jerry’s negligence. Judge Griffin dissented in that case on the ground he thought there was a question of fact for the jury to determine. One difference in that case and this case is in that case the suit was against the father of the boy driving the car and here it is against Leatherman who had parked his truck on the street in Floydada. The privilege of driving a motor vehicle upon the public highways does not exist unless one has obtained a license to do so. Taylor v. State, 151 Tex.Cr.R. 568, 209 S.W.2d 191.

It is stated in the case of Texas Mexican Ry. Co. v. Hoy, 24 S.W.2d 18, by the Commission of Appeals as follows:

“Even though a person riding in an automobile driven by another is not chargeable with the driver’s negligence, he is not absolved from the exercise of personal care for his own safety. He rests under the duty of exercising such care to avoid injury as would have been used under the attendant circumstances by an ordinarily prudent person. Texas City Terminal Co. v. Showalter (Tex.Civ.App.) 257 S.W. 621.
“While a guest is not ordinarily required to exercise the same quantum of care and caution as the driver of an automobile, yet, if he sits by without warning or protest, and knowingly permits himself to be driven carelessly to his injury, he should be held guilty of contributory negligence. Parramore v. Railway Co. (C.C.A.[10]) 5 F. (2d) 912.”

The jury that both Cecil and Mary failed to keep a proper lookout and that such failure was a proximate cause of the collision in question. Some of the evidence which the jury did or could have found that Cecil and Mary failed to keep a proper lookout and such failure was a proximate cause was as follows: It was usual and customary for cars and trucks to park on Houston Street where Leatherman’s truck was parked on the occasion in question; there were reflectors on the rear of the truck; there were lights shining on the truck; could see the truck as plain as day; several witnesses testified that they could see the truck and had no trouble seeing it; first saw the truck as he approached it from the East when he was approximately a block and a half away; Cecil and Mary approached the truck from the East; Cecil didn’t see that good; soon after the accident Cecil was refused a license because he couldn’t see sufficiently and had to have glasses before securing a license to drive. Mary and her father knew Cecil did not have a drivers license and knew he had had two accidents prior to the occasion in question. We are of the opinion there was sufficient evidence to sustain the jury’s findings as to the negligence and proximate cause here in question.

The Supreme Court stated in the case of Burt v. Lochausen, 151 Tex. 289, 249 S.W. 2d 194, as follows:

“Also, to sustain the action of the trial court in granting judgment non obstante veredicto, it must be determined that there is no evidence having probative force upon which the jury could have made the findings relied upon. Whiteman v. Harris, Tex.Civ.App., 123 S.W.2d 699, writ refused; Warren v. Schawe, Tex.Civ.App., 163 S.W.2d 415, writ refused.
“ ‘It was the jury’s province to weigh all of the evidence, to decide what credence should be given to the whole or to any part of the testimony of each witness. “The jury were the judges not only of the facts proved, but of the inferences to be drawn therefrom, provided such inferences were not unreasonable.” Stephenville, N. & S. T. Ry. Co. v. Shelton, Tex.Com.App., 208 S.W. 915, 916.’ Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616, 618, (1-3); also 53 Am.Jur. 143, et seq., Trial, Secs. 158 and 159.”

See also Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, by the Supreme Court where it is stated:

“The judgment of the Court of Civil Appeals in favor of Continental must be reversed if there is in the record before us evidence of probative value which, with the reasonable inferences therefrom, will support any one of the findings of proximate cause. Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497, 498. Moreover, we must approach a determination of the question in the light of our former admonition regarding questions of ‘no evidence’ that ‘Appellate courts are without authority to set aside jury verdicts, particularly on questions of proximate cause in damage suits, upon conflicting facts — the undisputed facts must be ample and clear, and the circumstances most exceptional to justify such action.’ Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982, 983.”

It is no less the duty of the passenger where he has the opportunity to do so than of the driver to learn of the danger and to avoid it if practicable. Langham v. Talbott, Tex.Civ.App., 211 S.W.2d 987 N.R.E., and the cases there cited. Mary Starkey was negligent, as found by the jury, in not keeping a proper lookout when the truck was plainly visible, as shown by evidence, and the jury was justified under the record in holding such failure was a proximate cause of the collision in question.

Since we are of the opinion that the trial court committed reversible error in setting aside the jury’s findings upon Special Issue Numbers 15A and 15B on the ground that there was no evidence to raise such issue as to negligence and proximate cause as to Mary Starkey, and that the jury’s findings and answers thereto had no support in the evidence, and thereby rendered judgment for Jesse Starkey and minor daughter, Mary Starkey, we will not pass upon appellant’s other assignments of error.

In our opinion the court erred in sustaining the motion of Jesse Starkey, individually, and as next friend of his minor daughter, Mary Starkey, to set aside the finding of the jury in answer to Special Issues Numbers 15A and 15B and in granting Jesse Starkey judgment of $1,746.0Q and Mary Starkey in the sum of $10,000.00. We think, and so hold, the trial court should have rendered judgment upon the verdict of the jury in favor of appellant. The case has been fully developed and nothing could he gained by another trial. The judgment of the trial court is therefore reversed and judgment is here rendered that the plaintiffs take nothing.

CHAPMAN, Justice

(dissenting).

ON MOTION FOR REHEARING

A more careful study of this case following the motion for rehearing has caused me to believe that my brethren have gone astray in setting aside the trial court’s judgment. Therefore, I respectfully dissent.

The original opinion has held, despite the jury’s finding that Cecil Jackson was not an incompetent driver, that he was guilty of negligence as a matter of law because he did not have a driver’s license thus making him an incompetent driver and creating an unusual situation or exceptional circumstances under which the guest was riding. The writer of the opinion cited Clem Lumber Co. v. Fisher et al., Tex.Civ.App., 84 S.W.2d 282, for authority on the holding. We find in reviewing that case that the holding was made in the dissenting ■opinion rather than the opinion of the majority and that a writ was dismissed. We further find in reviewing the evidence that Mary Starkey, Jesse Starkey and Fred Jackson all testified in effect that in their opinion Cecil Jackson was a competent driver. Mary Starkey, the guest in the car, answered, “Yes, Sir” to questions asking her if Cecil was a very careful driver and if he would try to obey all of the rules and regulations with reference to the law of traffic safety.

Our courts have held that failure of a ■driver of an automobile to have a current driver’s or operator’s license does not, as a matter of law, make him liable for damages for personal injuries arising from the operation of his car, and does not, as a matter of law, constitute a proximate cause •of a collision, and hence in effect make the driver under such circumstances an incompetent driver. It seems reasonable to say that one might have failed to apply for a driver’s license, carelessly permitted his driver’s license to expire; may have had it revoked for failure to report an accident or for failure to furnish proof of financial responsibility and still be a completely competent driver. Therefore, I believe the failure of Cecil Jackson to have a driver’s license at the time of his collision did not, as a matter of law, constitute him an incompetent driver but that the jury had the right to weigh that fact along with the testimony that he was a competent driver and make the decision themselves, as they did in holding that he was not an incompetent driver. This court is without authority to hold otherwise in the face of probative evidence showing him to be a competent driver. Biggers et al. v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359 (Sup.Ct).

I cannot agree from this record that Mary Starkey was under an obligation to keep a proper lookout while riding as a guest in an automobile with a driver she considered to be a very careful driver, one who tried to obey all the rules and regulations with reference to the rules of traffic safety, and one the jury found was not an incompetent driver. If there were proof of an unusual situation or of exceptional circumstances such as riding with an unusually fast driver, one the guest knew was under the influence of alcohol, one she knew from past experience was likely to be inattentive or careless in his driving, or if she knew that at some place they were going to be driving there would be a peculiar danger, which she had no reason to believe the driver if unaided would perceive, then there may have been sufficient evidence to go to the jury with respect to her failure to keep a proper lookout. There is no such probative evidence in this case and the error of the trial court lies in submitting the issue rather than disregarding the finding on the motion for judgment by appellees.

The majority opinion relies upon Texas Mexican Ry. Co. v. Hoy, 24 S.W.2d 18, on the question of proper lookout on the part of a guest riding in an automobile. A study of cases announced since that decision indicates that if that case may be considered as any authority at all on the question here under discussion it must be limited to its peculiar facts. The proper rules of law are announced by the Supreme Court in Schumacker Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857; Edmiston v. Texas & N. O. R. Co., 135 Tex. 67, 138 S.W. 2d 526; and Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, and I believe require an affirmance of this case from the record made.

      . Langdean v. Pittman, Tex.Civ.App., 337 S.W.2d 343.

      . Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (Sup.Ct.).


author: COLEMAN, Justice.

text:
    Lamar H. DICKEY, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 13903.
    Court of Civil Appeals of Texas. Houston.
    March 29, 1962.
    Rehearing Denied April 19, 1962.
    Virgil E. Cammack, Jr., Houston, for appellant.
    Walter E. Workman, Houston, Baker, Botts, Andrews & Shepherd, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is a Workmen’s Compensation Insurance case.

Appellant recovered a judgment for eleven days total disability and 216 weeks temporary partial disability. On computation the jury’s award amounted to $532.55.

Appellant contends that this award was totally inadequate and manifestly unjust and inequitable considering his injuries and the extent of his incapacity to labor. He also contends that the answer made by the jury to the issue inquiring as to his wage earning capacity while temporarily disabled was contrary to the great preponderance of' the evidence.

Appellant has been in the employ of Rath Packing Company for about twelve years, and at the time of the injury made the basis of this suit was working as a meat grinder. This involved lifting heavy chunks of frozen meat with a shovel. Immediately after the injury to his back, he was seen by his supervisor in a stooped-over position. Appellant reported an injury to his back, but finished the day’s work. The next day he went to Dr. Young, who, after treating him for some time, sent him to Dr. Palm where he was examined, x-rayed and treated by conservative methods. While being treated by Dr. Young and Dr. Palm, appellant continued working except for the first eleven days. He was on light duty for about one month and then went back to his regular job for a month or a month and a half, when at his own request he was returned to light duty. He continued to work for the company and, according to the testimony of his supervisor, his job in the reduced classification of laborer is secure. He did not do all of the work usually required of men classified as laborers. His supervisor testified that he did his work well, though he was a little slow even before the injury. While working as a grinder after the injury complained of, he had some falls and was involved in an automobile accident but he denied that these incidents adversely affected his condition. Appellant testified that he had suffered pain ever since the accident and that it had not gotten better. His supervisor, Mr. Cordes, testified that appellant was not a “complainer” and was a conscientious worker. He testified that appellant had told him that his back was not exactly the way it was before the accident. He further testified that appellant could not stay in the cooler for long periods without complaint. He testified concerning the work appellant was doing as a laborer and that it was work that would cause back pain in a man not used to it.

Dr. Young testified that when he first examined appellant he was of the opinion that he had a mild lumbo sacral strain, which produced little or no pain, and that when he released him for regular work after about two months he found no physical reason why appellant couldn’t do his regular work and that he found no symptoms whatever of a ruptured disc, but he advised appellant not to do anything foolish like trying to “juggle a big, heavy thing up on your shoulders.”

Dr. Palm testified that appellant’s physical findings were not consistent and that some definitely were not anatomical; that since he would not admit to any improvement in his condition from .rest, light duty or being relieved from work in the cold storage vaults, which, he complained, aggravated his condition, he saw no point in continuing treatments. He testified that while there was room for error, he did not believe it possible that appellant had any ruptured intervertebral discs.

Dr. Donovan testified that he examined appellant some nine months after the accident and found nothing wrong with his back and no condition that could be producing any pain; that if he had sustained an injury, it had completely cleared up at the time he saw him.

About thirteen months after the accident appellant went to Dr. Markewich, who, on examination, found slight muscle spasm, slightly limited motion and some tenderness, but found no evidence of nerve pressure, sensory or reflex changes. On a subsequent examination a week later he found slight evidence of radiating pain with probability of some nerve irritation. About two weeks later he found muscle spasm, limited motion of back, tenderness, evidence of nerve root pressure or irritation, and some evidence of sensory change. He sent appellant to Dr. Tyner for a myelogram. Dr. Tyner testified that this test demonstrated large protrusions at discs three and four. Both Dr. Tyner and Dr. Markewich gave a diagnosis of herniations at the third and fourth discs. Dr. Donovan testified after looking at the myelographic films that it was possible that they showed protrusions and that considering the myelograms together with his clinical findings, he would not be able to .reach a diagnosis because his clinical findings revealed nothing to indicate disc pathology in the back.

While appellant and his wife testified that he suffered pain and he complained to the doctors about pain, he received only one prescription for medication and one refill. James Forrester, a fellow employee, testified that at times he looked like he felt bad, but that he would not ask for help and didn’t go home.

The testimony shows that he has been able to do the work assigned him and has been paid $90.50 per week, the regular rate for laborers, since he dropped back to that classification. Appellant’s position at the trial was that he was totally and permanently disabled under the terms of the Workmen’s Compensation Act and he introduced no testimony concerning occupations or jobs which he might be able to secure or the wages ordinarily paid in any job other than in the two classifications at which he had worked at Rath Packing Company. His wage rate as a grinder was stipulated to be $94.15 per week.

Appellant does not complain of that part of the jury’s verdict finding that his incapacity was partial and that its duration was 216 weeks. The amount of the judgment was correctly determined by a mathematical calculation from the answers to the special issues, only one of which is attacked.

The point complaining that the judgment was inadequate, unjust, and inequitable is too general to point out any specific error in a case arising under the Workmen’s Compensation Act. The scope of this point is defined by the statement and argument under the point in appellant’s brief. An award made by the court as required by the applicable law cannot be said inadequate, unjust or inequitable. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197; Miguez v. Miguez, Tex.Civ.App., 221 S.W.2d 293; Insurance Investment Corp. v. Hargrove, Inc., Tex.Civ.App., 179 S.W.2d 383; Musick v. Pogue, Tex.Civ.App., 330 S.W.2d 696.

The tests to be applied in considering assignments of error relating to the preponderance of the evidence have been considered by this Court frequently (Continental Bus System, Inc. v. Biggers, Tex.Civ.App., 322 S.W.2d 1, ref., n. r. e.; Bardwell v. Anderson, Tex.Civ.App., 325 S.W.2d 929, ref., n. r. e.; Donnell v. Acker, Tex.Civ.App., 343 S.W.2d 718), and will be applied in this case.

Accepting as correct, as we must, that appellant was not totally disabled under the provisions of the Workmen’s Compensation Act, and, therefore, that he was able to secure and retain employment at a reduced wage, we cannot say that the answer made by the jury on the issue of average weekly wage earning capacity is clearly wrong or manifestly unjust.

Appellant produced a great deal of testimony to the effect that he could not do heavy labor, but he produced no evidence to show what wages he might expect from light duty work other than the fact that he had received $90.50 during the months prior to the trial. It was the jury’s function and duty to translate into dollars and cents the value of appellant’s labor in his disabled condition. The jury was instructed that in this case the injuries, if any, suffered after the date of the injury at issue should not be considered; that pain is not com-pensable unless it results in incapacity to work; that partial incapacity results when a workman is able to perform only part of the usual tasks of a workman or laborer of a less remunerative class, causing a reduction in earning capacity. Considering the instructions together with the testimony of his supervisor, Mr. Cordes, concerning the work done by appellant after the accident and the medical testimony offered by appellee, the verdict of the jury is properly supported by credible testimony. While the testimony offered by appellant would have supported a jury finding of a substantial reduction in earning capacity, or of total incapacity as defined in the Workmen’s Compensation Act, when we consider the entire record we do not find the verdict clearly wrong, unjust or shocking to the conscience.

Appellant requested a new trial on the ground of jury misconduct. This charge was supported by the testimony of Mrs. Schaer, a member of the jury, to the effect that when she and other jurors were favoring a finding that appellant’s condition of disability was total and permanent, they were asked to go along with the other jurors on the answer “temporary” and in turn the other jurors would yield to them on other issues; that it was necessary for jurors to “trade out” in order to reach a verdict. At the time the duration of the temporary disability was being considered this juror favored answering 216 weeks, but others desired the answer to be 108 weeks. At that time she reminded them of their prior remarks and stated that she would go back and insist on answering that the total disability was permanent. The jury then answered that the duration of temporary disability was 216 weeks. When the verdict was returned into court, the jury was polled and all answered that the answers given represented their verdict. Mrs. Schaer, however, stated that she was hard of hearing and didn’t hear all of the questions clearly. No other juror testified and the motion for new trial was overruled.

Whether misconduct of the jury occurred is a question of fact on which the trial court’s decision is final if supported by evidence, but whether misconduct results in probable harm is a question of law. Motley v. Mielsch, 145 Tex. 557, 200 S.W. 2d 622; White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200. In the absence of overt acts of misconduct, it is not permissible to probe the minds of the jurors or to supervise their process of reasoning. Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483, 156 A.L.R. 1028; Menefee v. Gulf C. & S. F. Ry. Co., Tex.Civ.App., 181 S.W.2d 287, ref., w. m. The fact that a jury reaches a verdict by compromising divergent viewpoints does not show misconduct. Patterson v. Hughes, Tex.Civ.App., 227 S.W.2d 397.

The jury must answer each issue submitted to them by a unanimous vote. If misconduct is shown, it must be by reason of the testimony of Mrs. Schaer that she agreed to abandon her conviction that the disability of appellant was permanent rather than temporary by reason of an agreement on the part of other jurors to defer to her views on some later issue. There are circumstances in evidence which support the implied finding of the trial court that such testimony does not show misconduct. The conversation occurred at the time the jurors were discussing the duration of total disability. When the question of whether or not the partial disability was only temporary was answered we must assume that the jury’s answer “temporary” .represented the unanimous view of all jurors. When the jury considered their answer to the question of the number of weeks of temporary disability, Mrs. Schaer and the jurors in accord with her were able to persuade the other jurors, who wished to answer a lesser number of weeks, to agree to 216 weeks. Finally, when the jury was polled, all jurors acknowledged that the verdict as returned into court was correct. It is unreasonable to assume that a juror, who was convinced that the claimant’s injuries resulted in a permanent condition of total disability, would insist on a finding that, after his views were rejected and it was agreed that the disability was only partial, such condition of partial disability was not permanent and would last a maximum of 216 weeks. It is reasonable to assume that the views of this juror changed by reason of further consideration of the evidence and that the effect of the nebulous agreement on the verdict .returned into court, if any, was to cause an increase in number of weeks given as answer to the issue on duration of temporary partial disability from 108 weeks to 216 weeks, which favored appellant.

We are of the opinion that the evidence does not show misconduct of the jury adversely affecting the rights of appellant. Patterson v. Hughes, supra; Bardwell v. Anderson, Tex.Civ.App., 325 S.W.2d 929, ref., n. r. e., and Ballinger v. Herren, Tex.Civ.App., 332 S.W.2d 131.

The judgment of the trial court is affirmed.


author: CLAYTON, Justice.

text:
    EMPLOYERS CASUALTY COMPANY, a corporation, Appellant, v. D. P. WINSLOW and Dorothy Winslow, Individually and d/b/a Presidio Mineral Products, et al., Appellees.
    No. 5485.
    Court of Civil Appeals of Texas. El Paso.
    March 28, 1962.
    Rehearing Denied April 18, 1962.

      Edwards, Belk, Hunter & Kerr, El Paso, for appellant.
    H. O. Metcalfe, Wm. H. Earney, Marfa, Joseph L. Dunigan, Potash, Cameron, Potash & Bernat, Don Studdard, El Paso, for appellees.
   CLAYTON, Justice.

This is an appeal from a judgment of the District Court of Presidio County rendered in favor of the plaintiffs (appellees) in the amount of $100,000.00 against the defendant insurance company (appellant). The parties will be referred to as they appeared in the trial court, wherever possible. Suit was on an alleged oral policy of fire insurance said to have been contracted for by the defendant, covering an ore mill and equipment which plaintiffs had erected in Presidio County. Construction was started on the mill about the first of January, 1958 and continued until about May of that year. At or near the beginning of construction the Winslows contacted one J. W. Davis, an employee of the defendant company, and discussed with him the matter of Workmen’s Compensation and Liability insurance. Pursuant to this conversation a “Comprehensive General Liability Policy” was issued to D. P. Winslow d/b/a Presidio Mineral Products by the defendant company for the period from January 20, 1958 to January 20, 1959. A similar policy was issued by defendant company for the period January 20, 1959 to January 20, 1960. On June 13, 1958 a “Standard Automobile Policy” containing Fleet Certificates covering various vehicles being used by plaintiff Winslow was issued by defendant company for a period of one year, followed by a similar policy for the ensuing year ending June 13, 1960. All of these policies contained the printed heading “Employers Casualty Company” and the printed signatures of the President and Secretary of the company at the end of the policies, under a printed paragraph reading:

“In Witness Whereof, the company has caused this policy to be executed by its President and Secretary, but this policy shall not be valid unless countersigned on the declarations page by a duly authorized representative of the company.”

The declarations pages of the two liability policies each contained the legend “COUNTERSIGNED AT El Paso, Texas BY (followed by the written signature of J. W. Davis) AUTHORIZED REPRESENTATIVE.” The declaration pages of the automobile policies merely contained the written signature of J. W. Davis under the title “Authorized Representative”. Riders attached to these latter policies contained the signature of J. W. Davis and the printed wording “Duly Authorized Representative.”

These policies were mailed to the insured and premiums were paid when the insured could — some in full and some not.

At a point after construction was started on the mill, about the middle of 1958, Mrs. Winslow started talking to Davis about fire insurance. As a result of these conversations the Employers Casualty Company issued a “Binder” effective at noon on November 29, 1958 and for a period not in excess of thirty days thereafter covering loss or damage by fire and extended coverage on the ore mill in the amount of $50,000.00. The value of the property was listed as $60,-000.00. The fire and extended coverage binder was subj ect to all the terms and provisions of a Texas Standard Policy. The binder was counter-signed by Jack A. White, “Authorized Representative.” A second binder was issued effective December 29, 1958 for another thirty-day period and was in the same terms and conditions as the first. A third similar binder covered the thirty-day period from January 29, 1959. These latter two binders were countersigned by L. H. Swager, “Authorized Representative.”

No policies of insurance were issued on these binders, and no premiums were paid on them. Mr. Davis, testifying for the defendant, stated that before a policy could have been issued it would have been necessary to submit to his company and through it to the Texas Insurance Commission the required information as to the risk so that the policy could be “rated”, since it would not be on the regular rate. Had a policy been rated and issued the premium would then relate back to the original issuance of a binder.

In this respect, Davis’ testimony seems to be borne out by that of Mrs. Winslow, who testified that in conversations had with Davis during the time the binders were issued, she was told that the exact amount of the premiums could not be given, but could be approximated only, until the policy could be rated; and that Davis made an estimate of .premium cost based on $50,000.00 of insurance. This estimate was written by Davis on a slip of paper, introduced by plaintiffs as an exhibit, and is as follows:

“PLAINTIFFS’ EXHIBIT 14, EH
“Fire
“50,000 @ 1.00 per 100 = 500.00
“EC
“50,000 @ 32 = 160.00
660.00
Between and
800.00
“1.50
“Per 100-Rate
“Fire
“20,000 @ 1.00 per 100 = 200.00
“EC Cov
“20,000 @ .32 = 64.00
264.00
1 yr.
“4X annual
“5 yrs 1320.00
“Could be around 364.00 because of location.”

Mrs. Winslow testified that after these binders had been issued and the mill had been constructed up to a point, it was necessary to close down and Mr. Davis was informed that no more insurance was needed until they were ready to start up, at which time they would contact Davis again and make arrangements for the fire insurance policy. She further testified that some time in April, 1959, other persons made investments in enlarging the plant and machinery and beginning that month she had several conversations with Davis relative to a fire insurance policy in the amount of $100,-000.00. She stated that from time to time Davis would request further information regarding the plant, which information she claims to have given him, together with pictures of the plant taken during construction. As regards the other investors, she claims that Davis said their names would not be necessary until after a contemplated incorporation had been completed and the plant was no longer operating under the name of Presidio Mineral Products, at which time the policy would he changed to show the corporate name and the investors.

There is a great deal of divergence between the testimony of Mrs. Winslow and that of Davis, but Mrs. Winslow testified that during the summer of 1959 Mr. Davis, who was about to leave on vacation, called her and told her he had all the information and everything he needed and that if the Winslows wanted to go ahead with the insurance while he was away, all they had to do was put in a telephone call to his office telling when they wanted the insurance to go into effect and the office would take care of it.

Winslow testified that his wife had related to him the substance of her conversations with Davis, and then she was called to California in July of 1959 due to the illness of her mother. He further stated that on August 7, 1959 he had left a check for $500.00 with the receptionist in Mr. Davis’ office and asked that it be put on Davis’ desk, since Davis was out of the office at the time. Mr. Winslow was asked how he had arrived at the figure of $500.00 and he testified:

“A. The only thing I had in writing from Mr. Davis indicated that the rate for $50,000.00 insurance would be from $600.00 to $800.00 per year and since we were getting going, on a yearly basis $500.00 represented, roughly, one-third of the rate that had been indicated.”

Referring to Mr. Davis’ notations which were shown on plaintiff’s Exhibit 14, the rate indicated for $50,000.00 Fire and Extended Coverage was between $660.00 and $800.00 per year. For $100,000.00 insurance this notation could indicate to Wins-low a premium double the one shown, or a rate between $1320 and $1600, of which $500.00 would represent, roughly, one-third. That this was what the notations meant to Winslow seems to be substantiated by his testimony that at the time the $500.00 check was given, he had “the whole $1600.00” in the bank in the account of the Presidio Mineral Products; and further: “I had the money, $1600.00, for the policy at the time, but you have to multiply your money a little bit. I never have contracted for something I couldn’t financially complete, and when I took the money in there I was ready to complete it.”

The $500.00 check was offered in evidence and is as follows:

“THE STATE NATIONAL BANK OF EL PASO
El Paso, Texas, August 7, 1959 19_No._
“Pay to the order of $500.00
Five Hundred and no/100-Dollars.
Presidio Mineral Products
Wind and Fire Ply. D. P. Winslow
“ENDORSED: For deposit only. Texas Employers’ Insurance Association, Employers Casualty Company, Employers National Insurance Company.
“Pay to the order of any Bank or Banker or through El Paso Clearing House, August 7 59 26522. Prior endorsements guaranteed. The State National Bank of El Paso, El Paso, Texas 88-6.
88-15 Pay to the order of Any Bank, Banker or Trust Co. Prior endorsements guaranteed. Aug. 26 ’59 27069. El Paso National Bank, El Paso, Texas.
PERFORATED: 8-27-59 88-6”

Mr. Winslow, continuing his testimony, related the following as having occurred on August 7, 1959:

“Q. Did you later that day talk to Mr. Davis?
"A. Yes, Mr. Davis called me at home that evening, I presume \yhen he got back to the office and I said that we were going now, after two years we were finally rolling, and I wanted the insurance which we had furnished him all the information for and he said all right, and I said ‘Am I covered?’ and he said ‘Yes’ and we got to talking about fire extinguishers, and he said ‘You should have them, but they aren’t necessary’ and I said ‘Well, I have two or three fire extinguishers that have been discharged and I will get them charged and send the certificates to you.’
“Q. Did he say anything to you about returning the premium, or anything like that?
“A. No, he said he would complete the rating and send the policy and bill us for the balance, like he did for a multitude of other policies.”

The ore mill was destroyed by fire on September 14, 1959. An itemization of the value of the mill and equipment was introduced and testified to by plaintiff Wins-low. The replacement cost was given as $135,000.00 and this figure was corroborated by other testimony.

Defendant company denied liability and on October 19, 1959, by registered letter of that date on Employers Casualty Company stationery, forwarded to Winslow a company check with the message: “We hand you herewith check for $500.00 which was conditionally left with our cashier on or about August 7, 1959.” This check was not cashed but the tender was again made by defendant after this suit was filed, by payment into the Clerk of the Court.

This case was submitted to a jury on special issues. The jury found that the defendant, through J. W. Davis as agent, entered into an oral contract with plaintiff D. P. Winslow on or about August 7, 1959 to insure the building and machinery of Pre-sidio Mineral Products against loss or damage by fire for one year in the amount of $100,000.00; that Davis had, at the time the contract was made, “apparent authority” from the defendant to make such contract; that the building and machinery were a total loss; that on or prior to August 7, 1959 the plaintiffs gave to defendant the names of the parties who were sought to be insured for $100,000.00; that defendant was also informed to whom the loss, if any, was to be payable; that an agreement was reached between plaintiffs and Davis as to the amount of the premium on such a policy of $100,000, and the company or companies which would issue the policy or policies ; and that the plaintiffs D. P. Winslow and Dorothy Winslow did not willfully conceal from defendant the fact that other persons owned an interest in Presidio Mineral Products.

Upon these findings of the jury the trial court, after overruling defendant’s motion for judgment non obstante veredicto, rendered judgment for plaintiffs in the principal sum of $100,000.00, from which judgment this appeal has been perfected.

Appellant in this appeal contends, under Point 1(1) that the evidence fails to show that there was any contract to insure made between defendant and plaintiffs. It is the settled law of this state that parol contracts to effect insurance by issuance of a policy are valid and enforceable. Springfield Fire & Marine Ins. Co. v. Hubbs-Johnson Motor Co., 42 S.W.2d 248 (Tex.Com.App.), and authorities there cited. There seems to be no issue between the parties in this case on the above rule of law, nor on the further rule set out in the Springfield case that “The contract must be in such condition that nothing is left open for future negotiations with reference to the subject-matter, parties, rate of premium, amount, or duration of risk.”

The subject-matter to be insured appears to have been known to the parties as a result of prior negotiations, and the defendant admits that “it may be said that from the evidence one may gather that the minds of the parties met on * * * the amount of insurance, if there was to be any insurance * * ⅜.” From what has been said above, we conclude that the jury had sufficient basis in the evidence to find that the amount of the purported policy of insurance was to be $100,000. But defendant urges that the “plaintiffs wholly failed to show what kind of a policy, if any, was to be issued, or who were to be the parties to the contract, or the rate of premium, or the duration of the risk.”

As to what kind of a policy was to be issued, defendant points to the testimony of Mrs. Winslow on direct examination, as follows :

“Q. And how much fire insurance did you request ?
“A. A $100,000.00 replacement policy.”

The defendant urges that by such a policy the insurer agrees to pay to the insured, in case of loss, the cost of replacing the damaged property up to the policy limits, while under a Texas Standard Fire Policy the company is required to pay only the difference between the value of the property immediately before and immediately after the fire, “except in case of a total loss where the amount of the policy creates a liquidated demand.”

The Texas Insurance Code, Article 6.13, Vernon’s Annotated Texas Statutes, provides :

“A fire insurance policy, in case of a total loss by fire of property insured, shall be held and considered to be a liquidated demand against the company for the full amount of such policy.”

It appears from the record in this case that the loss by fire of the mill property was in excess of $100,000.00. A witness for the plaintiff estimated that the replacement cost would be in the neighborhood of $150,000.00, give or take ten per cent. He gave about the same estimate of the fair market value of the mill as of September, 1959, before the fire which occurred on September 14, 1959. He stated that after the fire, what was left was “just junk”, worth about $30.00 a ton for the iron, and that there “might be fifteen or twenty tons” left. Another witness for the plaintiff, who was a mill construction contractor and who had constructed this mill, testified that the mill, after the fire, “looked to me like it was a complete loss.” This testimony was un-controverted in the record.

The jury found that the building and machinery were a total loss, and we feel that the jury was justified in so finding. (See E. L. Crutchfield, et al., v. St. Paul Fire & Marine Insurance Company, Tex.Civ.App., 306 S.W.2d 948). It therefore follows that whether the insurance requested by Mrs. Winslow was a replacement policy or a Texas Standard Fire Policy, the liability of the defendant would be a liquidated demand for the full amount of the policy — in this case, $100,000.00 — if it is found that a valid parol contract of fire insurance was in fact entered into by defendant company.

The next complaint of the defendant is that the plaintiffs failed to show who were to be the parties to the insurance contract; that is, who were to be the insurer and the insured. When Winslow made out the $500.00 check which he left for Davis, the name of the payee was left blank. The check, however, was endorsed by the Texas Employers’ Insurance Association, Employers Casualty Company and Employers National Insurance Company. Winslow testified that he did not fill out the name of the payee in the check because “I didn’t know which of these three companies our various policies were with”, but that “I would assume that lie (Davis) would know which company to put it in.” The proof shows that the three binders of insurance against loss by fire and extended coverage in the amount of $50,000.00 each had been issued by the Employers Casualty Company, as had the Comprehensive General Liability policies and the Standard Automobile policies. Appellant urges that under these facts "the minds of Davis and Winslow did not meet on the question of who were going to be the parties to the contract as insurer”, and cites the cases of Springfield Fire & Marine Insurance Co. v. Hubbs-Johnson Motor Co. (supra), and Grimes v. Virginia Fire & Marine Ins. Co., Tex.Civ.App., 218 S.W. 810, as authorities for the principle that where an agent may place the risk with any one of several companies, an oral contract of fire insurance is not enforceable if the contract does not itself specify which of the companies will carry the risk. This is tru e, “but, where the agent selects a company, a binding contract results, even though there was no agreement between the agent and insured as to the particular company to carry the risk, and insurer’s liability is unaffected by insured not knowing with what company he was dealing when agreeing with the agent for insurance.” (44 C.J.S. Insurance § 238, p. 995).

Winslow had the right to conclude that the same company that wrote the binders for fire and extended coverage, as well as his other policies, would write the requested policy for which he left his $500.00 check, even though the name of the company escaped him at the time; and it was that company (appellant herein) which was one of the endorsers on his check and who later, after the fire, tendered a return of this premium payment to Winslow. We feel that there was a meeting of minds as to the intended insurer, and the jury so found.

Appellant next claims that there was no contract of insurance between Davis and Winslow on August 7, 1959 “because of the additional reason that- there was no meeting of their minds as to who would be insured.” Although the testimony is not without conflict, it can be fairly said that in conversations between Mrs. Winslow and Davis, the latter learned' that there were to be other investors in the property to enlarge the plant and put it back in operation, and that it was contemplated that a corporation would be formed. Davis was asked the question whether he told the Winslows, in connection with the formation of the corporation: “At that time let me know and we will change the name of the insured in the policy”, to which he replied: “I told them we would, if the policy was issued.” The corporation was never formed. On April 1, 1959 an agreement was entered into between Winslow and three other persons concerning certain investments the latter were to make in the mill, after which a corporation was to be formed wherein Winslow was to have a 51% interest and the others, jointly, a 49% interest. Preliminary incorporation papers were drawn up but were not executed for the reason, according to Winslow, that the agreement of the investors had not been fully performed. These papers seemed to indicate that, in addition to the Winslows, there were three later investors who had either transferred, or intended to transfer to others, a part of their proposed interest in the intended corporation. All of these negotiations were not explained in detail to Davis. Mrs. Winslow testified that when she started to name off the investors Davis said it was “not necessary until the name of the company was changed, until we were incorporated.” The jury found there was no willful concealment from Davis by the Winslows of other persons who owned an interest in Presidio Mineral Products. Further, that prior to or on August 7, 1959 the plaintiffs gave to defendant the names of the parties who were sought to be insured for $100,000.00. This finding can be justified on the basis that, as far as the record shows, D. P. Winslow was still doing business as Presidio Mineral Products. Without in any way taking issue with the holding of the Commission of Appeals, in Franklin Fire Insurance Co. v. Shadid, 68 S.W.2d 1030, that “contracts for insurance against fire are personal in their nature”, and that “the insurer is entitled to know whose property he is insuring”, we hold that the jury’s answers to the above two issues are supported by the evidence.

Appellant next maintains that there was no contract of insurance because there was no meeting of the minds as to the period of time for which the insurance was to run. From a further glance at plaintiff’s Exhibit 14, supra, which is the notation of estimated rates made by Davis for $50,000.00 Eire and Extended Coverage on a yearly basis, together with Winslow’s testimony that “on a yearly basis $500.00 represented, roughly, one-third of the rate that had been indicated” for $100,000.00 coverage, it seems clear that Winslow intended to make a payment on one year’s premium and that his calculations were based on figures furnished by Davis for a one year’s premium. The jury found that the contract was for one year’s duration and it is believed that the testimony bears out this conclusion.

If we are correct in our reasoning in the above respect, the same reasoning would apply to appellant’s next contention, namely, that there was no agreement as to the amount of the premium. Davis had furnished Mrs. Winslow with a notation of estimated premiums, on the basis of which Winslow had drawn and delivered his $500.00 check. On the evening of the same day the check was delivered he had a telephone conversation with Davis, and as to this conversation he testified that he asked Davis, “Am I covered?”, and that Davis had replied “Yes.” Winslow was asked if Davis had said anything about returning the premium, or anything like that, and Wins-low replied, “No, he said he would complete the rating and send the policy and bill us for the balance, like he did for a multitude of other policies.”

An agreement relative to the amount of insurance, amount of premium, and duration of risk, need not be expressed in order to render the contract effective, but may be implied from previous dealings between the parties, if such have occurred, and surrounding circumstances. (24-B Tex.Jur. § 7, p. 40). In the instant case there had been previous dealings between the parties and it could be expected that the present transaction relative to fire insurance would follow the same pattern, and that the policy would be issued and Winslow would be billed for the balance of premium due in accordance with the rate approved by the Texas Insurance Commission.

We feel compelled to overrule all the issues raised by appellant under its Point 1(1).

Under Point 1(2), Point 1(3) and Point 1(4), appellant urges that if Davis made a contract with Winslow, which is denied, he acted without actual, implied or apparent authority to do so; and under Point 1(5), that there was no evidence of ratification of such action by the Company.

It is quite possible that Davis did not have actual authority from the defendant company to enter into the claimed policy of fire insurance with the Winslows. His “Salesman’s Employment Contract” introduced in evidence, contains the following provision:

“ * * * and the Salesman shall submit each and every such * * * application for Casualty business to the Casualty Company, and the * * * Casualty Company * * * to whom any such application is so submitted shall have the absolute right to accept or reject the same.”

However, there is no showing that the Winslows knew of such provision or were aware of any limitation on Davis’ authority except, perhaps, that he may have expressed to Mrs. Winslow some doubt as to whether his company would write a fire policy for $100,000.00. The rights of the parties to a contract of insurance are to be determined primarily with a view to the agent’s apparent authority, unrestricted by instructions of the principal which are not shown to have been known by or communicated to the insured. 24-B Tex.Jur. 262, Sec. 116. (Emphasis supplied).

We feel that there was no implied authority, as distinguished from apparent authority, from the defendant company to Davis to enter into the claimed insurance policy, since the definition in this State of implied authority seems to be that which is proper, usual and necessary to the exercise of the authority that has been expressly granted an agent. National Cash Register Co. v. Wichita Frozen Food Lockers, Tex.Civ.App., 172 S.W.2d 781, affirmed 142 Tex. 109, 176 S.W.2d 161. The definite restrictions on Davis’ authority under his employment contract with defendant precludes, we believe, any implied authority on his part to enter into the asserted contract.

We must, therefore, inquire as to whether there was apparent authority for Davis to bind the defendant. Both appellant and appellees rely upon the opinion in Great American Casualty Co. v. Eichelberger, Tex.Civ.App., 37 S.W.2d 1050, for a definition of apparent authority and what it embodies. This case holds:

“By apparent authority is meant such authority as a reasonably prudent man, using diligence and discretion in view of the principal’s conduct, would naturally and reasonably suppose the agent to possess. * ⅜ * An agent, who is clothed with the apparent authority, may make a binding contract, although his authority is actually so limited as not to authorize the making of such contract. * * * If a principal, acting through agents, invests sueih agent with the apparent authority, the acts of the agent in making a contract within the scope of his apparent authority is as binding upon the principal as if the agent possessed such authority. * * *
“Apparent authority is based on es-toppel, and can arise from but two sources: First, the principal may knowingly permit the agent to so hold himself out as having such authority, and in this way the principal becomes estopped to claim that the agent does not have such authority. * * * Second, the principal may so clothe the agent with the indicia of authority as to lead a reasonably prudent person to believe that he actually has such authority.”

At the beginning of the insurance transactions between the Winslows and Davis, two Comprehensive General Liability Polices were issued by the defendant company covering the two-year period from January 20, 1958 to January 20, 1960. Two Standard Automobile Policies were issued by the company covering the two-year period from June 13, 1958 to June 13, 1960. All four policies were headed “Employers Casualty Company, Dallas, Texas”; all bore a printed “sticker” reciting “El Paso District Office, 526 East Yandell Blvd., Phone: KE 3-4401, El Paso, Texas”; all bore a rubber stamp “Wilson Davis, Representative” with a business phone number the same as on the sticker; each bore the printed signatures of the President and Secretary of the company under a paragraph reciting that the policy would not be valid unless counter-signed by a “duly authorized representative of the company”; and all contained the hand-written signatures of J. W. Davis, variously described as “Authorized Representative” or “Duly Authorized Representative.” His were the only hand-written signatures on the policies.

Later, three 30-day “binders” were issued by defendant company covering fire and extended coverage in the amount of $50,-000. These binders contained the recital that they were “not valid unless countersigned by the Company’s duly authorized representative.” These binders bore hand-written signatures of persons other than Davis, but each of such persons was designated on the binders as an “Authorized Representative”, just as Davis had been.

Mrs. Winslow testified that she had several conversations with Davis concerning a fire policy in the amount of $100,000.00, and that she had furnished him information as requested from time to time. She swore that Davis had finally said he had all the information he needed and if the Winslows wanted to go ahead with the policy while he was out of town, his office would take care of it. Mr. Winslow, employing figures furnished by Davis, left a $500.00 check for Davis to apply on the premium of such a policy, and when he inquired of Davis, “Am I covered?”, Davis replied that he was. The check was endorsed by defendant company and deposited on August 7, 1959 — the day of its date.

Amid such circumstances, on September 14, 1959 the ore mill sought to be insured was destroyed by fire. By covering letter of October 19, 1959 (over nine weeks from the time when the defendant company had received and deposited Winslow’s check, and over a month from the time of the fire), the defendant sent its check in the amount of $500.00 to Winslow, apparently as a tender of return of the amount paid on the premium. There was evidence to the effect that the defendant had accepted partial payments on premiums which became due during the course of dealings between Davis and Wins-low.

The issue of Davis’ “apparent authority” was submitted to the jury with an explanatory instruction which used substantially the same definition of “apparent authority” as approved in the Eichelberger case, supra. The jury found that Davis had such authority. We hold that the jury was justified in so finding.

The foregoing conclusion eliminates the necessity of any discussion relative to ratification, and appellant’s Points 1(4) and 1(5) are accordingly overruled; and although Points 1(2) and 1(3) are sustained, our holding that Davis acted under apparent authority from defendant is unaffected thereby.

Under Point II, appellant asserts that the verdict does not support the judgment, and that therein lies fundamental error.

This case was submitted to the jury on special issues. Special Issue Number 3 asked: “Do you find from a preponderance of the evidence that the damage to Plaintiffs’ building and machinery constituted a total loss ?” A proper instruction defining “total loss” was submitted with the issue. The jury found the damage to be a total loss. Special Issues Numbers 4 (repair and replacement cost), 4-A (actual cash value of building and machinery immediately before the fire), and 4-B (actual cash value immediately after the fire) were submitted conditioned upon a finding of damage not a total loss, and were unanswered. Appellant maintains that the last three issues having been submitted conditionally and left unanswered, there was no finding as to the amount of damage actually sustained. It relies upon the use of the word “policy” in Article 6.13 of the Texas Insurance Code making a total loss a liquidated demand as taking this case out of the provisions of the statute. Wise v. Ferguson, Tex.Civ.App., 138 S.W. 816 is cited in support of this contention. The decision in the cited case was based on a cross-action alleging breach of a contract, not of insurance, but to renew or procure new insurance. The instant case, as appellant points out in his brief, is a suit “on an alleged oral contract of fire insurance”. We do not feel that the Wise case is applicable. Furthermore, the words “policy” and “contract” are often used synonymously. Again referring to the Texas Insurance Code, Article 21.42 thereof is headed: “Texas Laws Govern Policies”. The article begins: “Any contract of insurance”, and further in the article: “notwithstanding such policy or contract of insurance * * ⅜.” (Emphasis added).

At another point in this opinion a discussion is had of the uncontroverted testimony relative to replacement cost of the mill and machinery after the fire, and the actual value of this property before and after the fire. Being uncontroverted questions of fact, these matters need not have been submitted to the jury. If, as submitted, -they were improperly conditioned, objection should have been made to the manner of submission. If the jury, acting under the instructions of the court, failed to answer these issues as conditioned, and if such failure constituted “omitted issues”, a request for written findings on such issues should have been made, and in the absence of such request, such issues, if “omitted” shall be deemed as found by the court in such manner as to support the judgment.

Rule 279, Texas Rules of Civil Procedure.

Finding no merit to appellant’s Point II, the same is overruled, and the judgment of the trial court is in all things affirmed.